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Gorney v. Arizona Board of Regents

United States District Court, Ninth Circuit

September 24, 2013

Dale Gorney, a single man, Plaintiff,
v.
Arizona Board of Regents; Thomas P. Miller; Dan Nelson; Jacqueline Lee Mok; Allison Vaillancourt; Steve Husman, Defendants.

ORDER

CINDY K. JORGENSON, District Judge.

On July 10, 2013, Magistrate Judge Hector C. Estrada issued a Report and Recommendation, (Doc. 22), in which he recommended dismissing the Arizona Board of Regents from Plaintiff's federal claims with prejudice, dismissing Counts One, Six and Seven of Plaintiff's Complaint as untimely and dismissing Counts Two through Five without prejudice for failing to state a valid claim. Magistrate Judge Estrada further recommended denying Plaintiff's Motion for Summary Judgment and Motion for Judgment on the Pleadings as moot.

Magistrate Judge Estrada advised the Parties that written objections to the Report and Recommendation were to be filed within fourteen days of service of a copy of the Report and Recommendation pursuant to 28 U.S.C. §636(b). Plaintiff has filed an objection. (Doc. 23). Defendants have filed a response. (Doc. 24).

I. Background [1]

In 2011, Plaintiff was employed with the University of Arizona. He alleges that from March 2011 through May 2011, he submitted three alleged wrongful conduct disclosures and one whistleblower complaint to the University of Arizona. Specifically, he alleges that he had information alleging wrongful conduct which evidenced a violation of law, mismanagement, and gross waste or misappropriation of public funds. He further alleged an abuse of authority to investigate alleged wrongful conduct by Steve Husman, the director of the University of Arizona, Tucson Area Agricultural Center.

Dr. Allison Vaillancourt, the Vice President of Human Resources, was assigned to investigate Plaintiff's allegations of wrongful conduct. Dr. Vaillancourt forwarded Plaintiff's disclosures to Thomas P. Miller, an Associate Provost for Faculty Affairs. Plaintiff alleges that Mr. Miller acted in bad faith when he concluded that Plaintiff's disclosures were illegitimate and did not warrant any investigation.

After reviewing Mr. Miller's conclusions, Plaintiff requested a whistleblower review hearing. Dr. Vaillancourt reviewed Plaintiff's request but ultimately agreed with Mr. Miller's determination of Plaintiff's disclosures. On May 17, 2011 Dr. Vaillancourt denied Plaintiff's request for a whistleblower review hearing. Plaintiff alleges that Dr. Vaillancourt acted inappropriately in denying his request for a whistleblower review hearing due to her conflict of interest in the matter.

Plaintiff alleges that as a result of his disclosures, he was subjected to a retaliatory investigation on April 8, 2011 by Director Husman in connection with Plaintiff's request for 18 hours of overtime compensation. During these 18 hours of overtime, Plaintiff worked on issues related to his disclosures. Director Husman denied Plaintiff's overtime compensation and demanded that Plaintiff meet with him to discuss the specific job duties that required the use of 18 hours of overtime. Plaintiff refused to discuss his use of overtime with Director Husman and he received a written reprimand. Plaintiff was then placed on disciplinary probation, received a pre-discharge notice and was ultimately terminated from his employment on May 25, 2011.

Plaintiff alleges that his disclosures should have remained confidential pursuant to the University of Arizona whistleblower policy. Also, since his use of overtime was directly related to the filing of his disclosures, which were directly related to Director Husman's conduct, he should not have been required to meet with Director Husman to discuss his use of overtime. Finally, Plaintiff alleges that the Defendants including Jacqueline Lee Mok, the University of Arizona Investigation Officer for the President's Office, failed to adhere to Arizona law by finding his disclosures illegitimate.

Procedural History

On December 12, 2012, Plaintiff filed a complaint in Pima County Superior Court. In his Complaint, Plaintiff alleges that his termination from employment at the University of Arizona was (1) in violation of state public policy; (2) a retaliatory discharge in violation of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §201 et seq. ; (3) retaliation in violation of the First Amendment; (4) a violation of the Equal Protection Clause of the Fourteenth Amendment; (5) a violation of the Procedural Due Process rights of the Fourteenth Amendment; (6) a breach of the implied-in-law covenant of good faith and fair dealing; and (7) tortious interference with a contractual relationship. (Doc. 1-2). Plaintiff's Complaint seeks (1) reinstatement of employment; (2) a written employment contract; (3) back-pay; (4) loss of earnings; (5) general damages; and (6) punitive damages.

On January 10, 2013, Defendants filed a notice of removal in this Court. (Doc. 1). After removal, Defendants moved to dismiss this matter, pursuant to Fed.R.Civ.P. 12(b)(6), arguing the Plaintiff's Complaint fails to state any claim upon which relief may be granted. (Doc. 3). Plaintiff filed his response on January 18, 2013. (Doc. 7). On January 22, 2013, Plaintiff filed an Amended Response to Defendants' Motion to Dismiss. (Doc. 9). Defendants filed a Reply on February 1, 2013. (Doc. 11). On February 5, 2013, Plaintiff filed an Objection to Defendants' Reply in Support of Defendants' Motion to Dismiss. (Doc. 13). Then on February 13, 2013, Plaintiff filed an Amended Objection to Defendants' Reply in Support of Defendants' Motion to Dismiss. (Doc. 14).

On February 19, 2013, Plaintiff filed a Motion for Summary Judgment. (Doc. 15). Defendants filed a Response on March 21, 2013. (Doc. 16). Plaintiff filed a Reply on March 27, 2013. Then, on May 14, 2013, Plaintiff filed a Motion for Judgment on the Pleadings. (Doc. 18). Defendants filed a Response on May 15, 2013. (Doc. 19). Plaintiff filed his Reply on May 22, 2013. (Doc. 20). On June 4, 2013, Plaintiff filed an Amended Reply in support of his Motion for Judgment on the Pleadings. (Doc. 21).

On July 10, 2013, Magistrate Judge Hector C. Estrada issued a Report and Recommendation. (Doc. 22). In his Report and Recommendation, Magistrate Judge Estrada recommended dismissing the Arizona Board of Regents from Plaintiff's federal claims with prejudice, dismissing Counts One, Six and Seven of Plaintiff's Complaint as untimely and dismissing Counts Two through Five as failing to state a claim with leave to amend. Magistrate Judge Estrada further recommended denying Plaintiff's Motion for Summary Judgment and Motion for Judgment on the Pleadings as moot.

Plaintiff filed Objections to Magistrate Judge Estrada's Report and Recommendation on July 26, 2013. (Doc. 23). Plaintiff agrees with Magistrate Judge Estrada's recommendation that his Complaint was insufficient and he does not object to Magistrate Judge Estrada's recommendation that Counts Three through Five of Plaintiff's Complaint be dismissed with leave to amend.

However, Plaintiff objects to the dismissal of Count Two of his Complaint alleging retaliatory discharge in violation of the Fair Labor Standards Act ("FSLA"). Further, Plaintiff objects to the dismissal of the Arizona Board of Regents from his federal claims, the dismissal of his state claims as untimely, and the denial of his Motions for Summary Judgment and Judgment on the Pleadings. Defendants have filed a response to Plaintiff's objections. (Doc. 24).

II. Standard of Review

This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). Pursuant to 28 U.S.C. § 636(b)(1), if a party makes a timely objection to a magistrate judge's recommendation, then this Court is required to "make a de novo determination of those portions of the [report and recommendation] to which objection is made." See also Schmidt v. Johnstone, 263 F.Supp.2d 1219, 1226 (D.Ariz. 2003) (reading the Ninth Circuit's decision in Reyna-Tapia as adopting the view that district courts are not required to review "any issue that is not the subject of an objection"); United States v. Reyna-Tapia, 328 F.3d 1114 (9th Cir.2003) (disregarding the standard of review employed by the district court when reviewing a report and recommendation to which no objections were made).

Arizona Board of Regents

Magistrate Judge Estrada concluded that Plaintiff's federal claims against the Arizona Board of Regents ("the Board"), specifically Counts Two through Five, fail as a matter of law. Counts Three, Four and Five allege violations of Plaintiff's rights pursuant to the First Amendment and Fourteenth Amendment. These claims are brought pursuant to 42 U.S.C. §1983. See Gomez v. Toledo, 446 U.S. 635, 638 (1980)(citing 42 U.S.C. §1983)("Section 1983 provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' by any person acting under color of any statute, ordinance, regulation, custom, or usage, or any State or Territory.'").

"The eleventh amendment bars suits in federal courts by private citizens against a state." Ronwin v. Shapiro, 657 F.2d 1071, 1073 (9th Cir. 1981). The Board's funds consist of state funds and it is treated as the State of Arizona pursuant to Arizona law. Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345, 1349 (9th Cir. 1981) ( abrogated on other grounds Haygood v. Younger, 769 F.2d 1350, 1356 (9th Cir. 1985). A State is not a person against whom a §1983 claim for money damages may be asserted. Will v. Michigan Dept. of State Policy, 491 U.S. 58, 66, 109 S.Ct. 2304 (1989). As such, the Board possesses Eleventh Amendment immunity from Plaintiff's §1983 claims. See Mitchell v. Los Angeles Community College Dist., 861 F.2d 198, 201 (9th Cir. 1988); see also Ansel Adams Publishing Rights Trust v. PRS Media Partners, LLC, 502 Fed.Appx. 659, 660-661 (9th Cir. 2012) (the Board, as the governing body for Arizona's public universities, is immune from federal law suits pursuant to the Eleventh Amendment).

Count Two alleges that Defendants violated the Fair Labor Standards Act. Congress has not abrogated the State's sovereign immunity from FLSA law suits. See Alden v. Maine, 527 U.S. 706, 712, 119 S.Ct. 2240, 2246 (1999). Thus, the Eleventh Amendment protects the Board from suit under the FLSA absent a waiver of immunity. See Id. Plaintiff argues that the Board waived its immunity when it removed this action from state court to federal court. See Lapides v. Board of Regents of University System of Georgia, 535 U.S. 613, 616-617, 122 S.Ct. 1640 ...


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