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Bacon-Dorow v. Prescott Unified School District

United States District Court, Ninth Circuit

October 30, 2013

Jalynn Bacon-Dorow, Plaintiff,
v.
Prescott Unified School District, Defendant.

ORDER

NEIL V. WAKE, District Judge.

Before the Court are Defendant Prescott Unified School District's Motion to Dismiss (Doc. 9) and Plaintiff Jalynn Bacon-Dorow's Motion for Leave to Amend Complaint (Doc. 13).

I. SERVICE OF PROCESS

Prescott Unified School District ("District") contends that Bacon-Dorow failed to properly serve the District's chief executive officer, which it contends is the governing board, because service on an individual board member is insufficient and the District does not have an individual designated pursuant to statute to receive service of process, an official secretary, a clerk, or a recording officer. Instead, Bacon-Dorow served the Summons and Complaint on Andi Mayer, Assistant to the Governing Board, who "told counsel that the school board did not have a clerk, but that she functioned as the secretary to the board and was the person tasked with receiving claims, process, and the like on behalf of the board." (Doc. 12-1, Affidavit of Counsel.) Ms. Mayer was the de facto Secretary of the Governing Board, and the District received actual notice. Therefore, the service was sufficient.

II. EXHAUSTION OF ADMINISTRATIVE REMEDIES

The District contends that the Court lacks subject matter jurisdiction because the Complaint refers to EEOC charge number XXX-XXXX-XXXXX, instead of EEOC charge number XXX-XXXX-XXXXX, which is the charge of discrimination for which Bacon-Dorow has received a notice of right to sue from the EEOC. Bacon-Dorow concedes that a lawsuit regarding EEOC charge number XXX-XXXX-XXXXX is premature. She seeks to amend her complaint to substitute EEOC charge number XXX-XXXX-XXXXX.

III. NOTICE OF CLAIM

The District contends that the second count of the Complaint, a common law claim for conversion, is barred by Bacon-Dorow's failure to comply with Arizona's mandatory notice of claim statute, A.R.S. ยง 12-821.01. Bacon-Dorow concedes this point and seeks to withdraw this count in an amended complaint.

IV. LEAVE TO AMEND

Although leave to amend should be freely given "when justice so requires, " Fed.R.Civ.P. 15(a)(2), "[l]eave to amend need not be given if a complaint, as amended, is subject to dismissal." Moore v. Kayport Package Exp., Inc., 885 F.2d 531, 538 (9th Cir. 1989). "Futility of amendment can, by itself, justify the denial of a motion for leave to amend." Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995).

Rule 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief, " in order to "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not suffice. Id. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Both the Complaint and the proposed amended complaint allege that Bacon-Dorow suffers from a permanent physical disability of her back that substantially limits her major life activities. They allege that she worked for the District as an art teacher from January 1995 through May 2012 and underwent back surgery in June 2011. It is unclear whether she suffered from a permanent physical disability of her back before the surgery. When she returned to work on July 28, 2011, she requested an accommodation to work half-time. Neither the Complaint nor the proposed amended complaint explains why she could continue teaching, but only half-time. Nor do they explain how she could perform the essential functions of her full-time position while working only half-time. It is not sufficient to summarily allege "With the reasonable accommodation she requested[, ] Plaintiff could perform the essential functions of the employment position that she held."

The Complaint and proposed amended complaint allege that on July 28, 2011, her request for accommodation was denied, but instead she was given a reduced class schedule. She was paid full-time, but required to use two hours per day of her accumulated sick leave. The Complaint and the proposed amended complaint allege that she continued full-time employment with a reduced schedule. It is not clear whether the reduced schedule was different than half-time.

On August 30, 2011, Bacon-Dorow was informed that her employment would be terminated, but she "prevailed upon Defendant not to immediately terminate her employment." The Complaint and proposed amended complaint allege that instead of termination, she used sick leave, followed by leave under the Family Medical Leave Act and short-term disability through the end of the school year. Neither the Complaint nor the proposed amended ...


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