                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 28 2009

                                                                       MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



KAREN GROSZ; et al.,                             No. 08-16819

              Plaintiffs - Appellants,           D.C. No. 2:07-cv-00697-FCD-
                                                 CMK
  v.

LASSEN COMMUNITY COLLEGE                         MEMORANDUM *
DISTRICT; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Frank C. Damrell, District Judge, Presiding

                           Submitted November 3, 2009 **
                             San Francisco, California

Before: HAWKINS and THOMAS, Circuit Judges, and TRAGER, *** District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable David G. Trager, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
       Plaintiffs appeal dismissal of their third amended complaint for failure to

state a claim for harassment, discrimination, and retaliation in violation of 42

U.S.C. § 1983, Title VII, California’s Fair Employment and Housing Act

(“FEHA”), and California common law against Lassen Community College

District, its Board of Trustees (collectively “District defendants”), and Homer

Cissell (“Cissell”). We affirm in part and reverse in part.

       We review a dismissal under Fed. R. Civ. P. 12(b)(6) de novo. Stone v.

Travelers Corp., 58 F.3d 434, 436–37 (9th Cir. 1995). All allegations of material

fact must be taken as true and must be construed in the light most favorable to the

nonmoving party. Keams v. Tempe Tech. Inst., Inc., 39 F.3d 222, 224 (9th Cir.

1994). We reverse if we find “enough facts to state a claim to relief that is

plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

       Many of the claims here do not survive the Twombly pleading standard.

Therefore, we affirm the judgment of the district court as to all claims, except for

the following: (1) the § 1983 claims alleged by Grosz, Chavez and Bishop against

Cissell for violation of their First Amendment rights; (2) certain Title VII gender

discrimination claims alleged by Grosz and Leao against the District defendants;

(3) certain § 1983 equal protection claims alleged by Grosz and Leao against

Cissell; (4) the Title VII retaliation claims filed by all plaintiffs against the District


                                             2
defendants; and (5) the § 1983 retaliation claims alleged by all plaintiffs against

Cissell. Additionally, all the FEHA claims against the District defendants should

have been dismissed without prejudice.1

A.    Section 1983 claims for First Amendment retaliation

      Section 1983 claims against a government official for First Amendment

retaliation require that an employee demonstrate: “(1) that he or she engaged in

protected speech; (2) that the [official] took adverse employment action; and (3)

that his or her speech was a substantial or motivating factor for the adverse

employment action.” Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003)

(internal quotation marks omitted).

      Because the complaint does not indicate that giving grand jury testimony

was one of Grosz’s or Chavez’s official duties, we assume that their testimony,

which “addresse[d] a matter of legitimate public concern,” was protected speech.

See id.; see also Garcetti v. Ceballos, 547 U.S. 410, 421–22 (2006); Huppert v.

City of Pittsburg, 574 F.3d 696, 708–09 (9th Cir. 2009). We also assume that



      1
         We note that the district court published its opinion. Grosz v. Lassen
Community College Dist., 572 F. Supp. 2d 1199 (E.D. Cal. 2008). In affirming the
district court’s decision regarding the other claims, which are not discussed herein,
we are not necessarily expressing our agreement with the reasoning of the district
court as to any particular issue. Rather, our conclusion is based on our
independent review of the record in light of applicable law.

                                           3
Bishop’s no confidence petition was protected speech as no facts in the complaint

suggest otherwise. See Robinson v. York, 566 F.3d 817, 822, 824 (9th Cir. 2009)

(discussing First Amendment and whistle blowing).

      These three plaintiffs have successfully pled adverse employment

actions—“actions taken by the defendants [that] were reasonably likely to deter

[them] from engaging in protected activity [under the First Amendment].”

Coszalter, 320 F.3d at 76.

      Grosz and Chavez have also sufficiently alleged that their protected speech

was a substantial or motivating factor for Cissell’s retaliatory actions due to the

“proximity in time” between their grand jury testimony and the adverse actions

taken against them. See id. at 977 (internal quotation marks omitted). Bishop

similarly alleged temporal proximity and additionally pled that Cissell “expressed

opposition to [her] speech, either to [her] or to others,” and “proffered explanations

for the adverse employment action that were false and pre-textual.” Id.

      Cissell is not immune from suit. It is irrelevant that the complaint failed to

specify that he was being sued in his individual capacity, as this is presumed where

damages are sought. Shoshone-Bannock Tribes v. Fish & Game Comm’n, 42 F.3d

1278, 1284 (9th Cir. 1994). Nor can a California statute immunize a state actor

against § 1983 claims. Cf. Monroe v. Pape, 365 U.S. 167, 174 (1961), overruled


                                           4
on other grounds by Monell v. Dept. of Soc. Servs. of City of New York, 436 U.S.

658 (1978).

B.    Title VII gender discrimination claims

      The majority of plaintiffs’ allegations of gender discrimination failed to state

a claim. However, two of Grosz’s allegations successfully stated claims of

discrimination against the District defendants. Specifically, Grosz alleged that:

(1) she was denied the right to take a position as an instructor when her contract as

dean was not renewed while the other dean, a similarly situated male, was granted

such a position when his contract was not renewed; and (2) she was denied travel

privileges to attend an National Riffle Association conference while male

employees were not denied funds to travel to that conference. In addition, Leao

also successfully stated a claim of discrimination against the District defendants by

alleging that her request to work at home following knee surgery was denied while

a similarly situated male was granted a comparable request. None of the plaintiffs,

however, may proceed against Cissell under Title VII. See Miller v. Maxwell's

Intern, Inc., 991 F.2d 583, 587–88 (9th Cir. 1993); Craig v. M & O Agencies, Inc.,

496 F.3d 1047, 1058 (9th Cir. 2007).




                                          5
C.    Section 1983 equal protection claims

      The District defendants have Eleventh Amendment immunity from § 1983

claims, and thus, plaintiffs may only proceed against Cissell on these claims. The

three viable Title VII claims discussed above can be brought against Cissell as §

1983 equal protection claims, provided that Cissell was involved in the relevant

actions taken against Grosz and Leao. See Sischo-Nownejad v. Merced Cmty. Coll.

Dist., 934 F.2d 1104, 1112–13 (9th Cir. 1991) (“In order to prove discrimination in

violation of § 1983, a plaintiff must demonstrate that the defendants acted with the

intent to discriminate.”), superceded by statute on other grounds as recognized in

Dominguez-Curry v. Nev. Transp. Dept., 424 F.3d 1027, 1041 (9th Cir. 2005).

D.    Title VII retaliation claims

      Plaintiffs have successfully pled Title VII retaliation claims against the

District defendants by pleading that they engaged in protected activity and their

supervisor, in retaliation, took adverse actions that would chill a person of ordinary




                                          6
firmness from engaging in such activity.2 42 U.S.C. § 2000e-3; Robinson v. Shell

Oil Co., 519 U.S. 337, 345–46 (1997); see also Yartzoff v. Thomas, 809 F.2d 1371,

1375–76 (9th Cir. 1987) (undeserved performance ratings are adverse actions for

retaliation claims). As noted earlier, plaintiffs cannot bring Title VII claims

against Cissell.

E.    Section 1983 retaliation claims

      Likewise, plaintiffs have successfully pled a § 1983 retaliation claim. As

stated above, the District defendants have Eleventh Amendment immunity from §

1983 claims, and, thus, plaintiffs may only proceed against Cissell on these claims.

F.    FEHA claims

      The district court correctly dismissed the FEHA claims against Cissell with

prejudice. See Reno v. Baird, 18 Cal. 4th 640, 646–47 (1998); see also Jones v.



      2
          In addition to the other adverse actions successfully pled by plaintiffs, we
specifically note that plaintiff Stevenson has stated a valid claim under Title VII by
alleging that her husband was demoted in retaliation for her protected activity even
though her relief for such retaliation may be limited to damages for emotional
distress she suffered and, possibly, punitive damages. See Thompson v. N. Am.
Stainless, LP, 567 F.3d 804, 816 & n.10 (6th Cir. 2009) (en banc) (suggesting in
dicta that a plaintiff who engages in protected activity would have a viable
retaliation claim based on her fiance’s termination), petition for cert. filed, No.
09-291, 78 U.S.L.W. 3113 (Sept. 3, 2009); see also id. at 816-817, 822 n.5, 826-27
(concurring and dissenting opinions); 3 Lex K. Larson, Labor and Employment
Law, § 66.04[5] (Matthew Bender 2009). Such retaliation would also be
actionable as a § 1983 retaliation claim.

                                           7
The Lodge at Torrey Pines P’ship, 42 Cal. 4th 1158, 1173–74 (2008). The

Eleventh Amendment, however, only bars suit against the District defendants for

FEHA claims made in federal court. Therefore, all the FEHA claims against the

District defendants should have been dismissed without prejudice. Freeman

v.Oakland Unified Sch. Dist., 179 F.3d 846, 847 (9th Cir. 1999).

      AFFIRMED IN PART; REVERSED IN PART; REMANDED. Each

party shall bear its own costs on appeal.




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