United States District Court, D. Arizona
S. Willett United States Magistrate Judge
before the Court is Defendants' fully briefed Motion to
Dismiss or for More Definite Statement (Doc. 10). Defendants
alternatively seek (i) dismissal of Count II of
Plaintiff's First Amended Complaint (Doc. 1-2 at 2-62),
which alleges wrongful termination in violation of an
implied-in-fact employment contract against the Maricopa
County Community College District, or (ii) that the Court
order Plaintiff to plead Count II with more particularity.
The case was removed to the United States District Court from
the Maricopa County Superior Court of Arizona by Notice of
Removal filed December 15, 2015 (Doc. 1-2 at 91-98). The
Federal Court has jurisdiction pursuant to 28
U.S.C.§§ 1331, 1441(c). The parties have consented
to proceeding before a Magistrate Judge pursuant to Rule 73,
Fed.R.Civ.P. and 28 U.S.C.§ 636(c) (Docs. 6, 8).
reviewing the parties' submissions, the Court finds that
Plaintiff has failed to set forth sufficient facts in his
First Amended Complaint that, if true, set forth a cause of
action in Count II for wrongful termination in violation of
Arizona Employment Protection Act ("AEPA").
However, Plaintiff has set forth sufficient additional facts
in his Response to cure the deficiencies noted herein.
Therefore, Defendants' Motion to Dismiss will be denied.
Defendants' Motion for More Definite Statement will be
granted, and the Court will order Plaintiff to file a Second
Amended Complaint consistent with the additional factual
allegations Plaintiff has set forth in Plaintiff's
Response and the Court's findings herein.
as true all well-pled factual allegations contained in
Plaintiff's First Amended Complaint and drawing all
reasonable inferences therefrom, Plaintiff alleges the
following facts in support of Count II. For purposes of this
Rule 12(b)(6), Fed. R. Civ. P., Motion to Dismiss, the Court
disregards any of the Defendants' factual contentions to
the contrary. See, e.g., Lee v. City of L.A., 250
F.3d 668, 688 (9th Cir. 2001) ("[F]actual challenges to
a plaintiff's complaint have no bearing on the legal
sufficiency of the allegations under Rule
12(b)(6)."). However, the Court may still consider
any internal discrepancies or factual conflicts it finds
within the complaint that undermine its plausibility.
See, e.g., Maloney v. Scottsdale Ins. Co., 256
F.App'x 29, 31- 32 (9th Cir. 2007) (finding that a
complaint failed to state a claim upon which relief could be
granted based upon factually inconsistent allegations in a
complaint that were not pleaded in the alternative, but
incorporated into each cause of action).
worked for twenty-eight years for the Maricopa County
Community College District ("the District") in
various capacities, most recently as a Director in the
Information Technology Services ("ITS") Department,
managing various information data bases including the Student
Information System ("SIS"). He did not have
responsibility for, or oversight of, the ITS web server
hardware, software, security, or monitoring functions to
detect and prevent unauthorized access to the sensitive or
confidential personal information of students and employees.
His employment terms included information contained in the
District's Management, Administrative & Technology
("MAT") Policy Manual and Employment Handbook.
District is a political subdivision of the State of Arizona,
operating under color of State law. The District operates ten
community colleges and several additional educational
facilities within Maricopa County.
audits performed by the Arizona State Auditor General from
2008 through 2010, the District became aware of and was
warned regarding a serious risk of theft, manipulation, or
misuse of sensitive or confidential information by
unauthorized users of its data. The first data breach
occurred in 2008. Inadequate steps were taken by the District
to prevent a subsequent data breach which occurred in 2011
and was discovered and reported to the District by the FBI.
After the data breach of 2011 by unauthorized third parties,
the District's main public web server remained severely
compromised and highly vulnerable to continued unauthorized
access. The District remained aware of the inadequacies of
its system through additional audits, internal
communications, and commissioned consultant reports.
Nevertheless, the District failed to take sufficient steps to
protect its data from further unauthorized access. A massive
data breach ensued in 2013, which compromised the
confidential data of students and employees.
to the 2013 data breach, Plaintiff became aware of the
financial mismanagement of ITS projects, the lack of adequate
data security measures, and the risk of a significant breach
of confidential data. Plaintiff was aware that the
District's lack of adequate data security measures may
result in a violation of State and Federal law. In 2012,
Plaintiff therefore reported to the Chancellor of the
District the need to tighten ITS security, the risk of a data
breach, and the financial mismanagement of ITS projects.
Plaintiff also reported his intent to file EEOC claims for
age and racial discrimination occurring in the ITS
2012, Plaintiff filed a formal grievance through the MAT
Employee Group and Professional Staff Association (PSA)
against the District. Plaintiff also filed three claims with
the U.S. Equal Employment Opportunity Commission
("EEOC"). The District never responded to the MAT
and PSA grievance as required by the District's policies
retaliation for engaging in protected activity through the
reporting of (i) data security inadequacies endangering the
confidential information of students and employees, (ii) the
fiscal mismanagement of the District, and (iii)
discriminatory practices within the ITS Department, Plaintiff
claims that he was demoted, suffered a pay-cut, and was
eventually terminated. The District failed to provide
Plaintiff due process in accordance with the MAT policy
manual and employee handbook during the District's
investigative and hearing procedures conducted regarding
Plaintiff's ultimate termination.
Rule 12(b)(6), Fed. R. Civ. P.
12(b)(6), Fed. R. Civ. P., is designed to "testthe
legal sufficiency of a claim." Navarro v.
Block, 250 F.3d 729, 732 (9th Cir. 2001). A
Rule 12(b)(6) dismissal for failure to state a claim can be
based on either (i) the lack of a cognizable legal theory or
(ii) insufficient facts to support a cognizable legal claim.
Conservation Force v. Salazar, 646 F.3d
1240, 1242 (9th Cir. 2011), cert. denied, Blasquez v.
Salazar, 132 S.Ct. 1762 (2012). In deciding a Rule
12(b)(6) motion to dismiss, Courts must consider all
well-pled factual allegations in the Complaint as true and
interpret them in a light most favorable to the non-moving
party. Schlegel v. Wells Fargo Bank, NA, 720 F.3d
1204, 1207 (9th Cir. 2013). While "a complaint need not
contain detailed factual allegations . . . it must plead
‘enough facts to state a claim to relief that is
plausible on its face.'" Clemens v. Daimler
Chrysler Corp., 534 F.3d 1017, 1022 (9th Cir.
2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). "[A] well-pleaded complaint may proceed
even if it strikes a savvy judge that actual proof of those
facts in improbable, and ‘that a recovery is very
remote and unlikely.'" Twombly, 550 U.S. at
556 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236
(1974)). "[F]or a complaint to survive a motion to
dismiss, the non-conclusory ‘factual content, ' and
reasonable inferences from that content, must be plausibly
suggestive of a claim entitling the plaintiff to
relief." Moss v. U.S. Secret Serv., 572 F.3d
962, 969 (9th Cir. 2009) (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)). In other words, the complaint must
contain enough factual ...