United States District Court, D. Arizona
Honorable G. Murray Snow United States District Judge.
before the Court is the Motion for Summary Judgment of
Defendant Northern Arizona Council of Governments. (Doc. 30).
For the following reasons, the Court grants the motion in
part and remands the remaining state law claims.
Loretta Donovan was employed by the Northern Arizona Council
of Governments (“NACOG”). NACOG is a nonprofit
organization that administers an early education program
known as Head Start. Plaintiff worked as Center Director for
NACOG's Prescott Valley Head Start program. Plaintiff
alleges that she reported concerns about water damage and
mold to her superiors throughout her employment. Eventually,
on March 23, 2015, Plaintiff sent an email to her superiors
expressing her concern about mold in writing. (Doc. 31, Ex.
C). NACOG hired a company to test the center for mold on
March 24, 2015. Id. at Ex. D. The company informed
NACOG on March 31, 2015 that testing revealed no air quality
concerns. Id. When NACOG officials visited the
Prescott Valley center on April 3, 2015 to discuss the
testing results, staff members showed tiles which had a dark
substance that resembled mold. Id. NACOG contacted a
restoration company. Id. During restorations, NACOG
closed the Prescott Valley center and reassigned staff to
alternative worksites. Id.
alleges that on the morning of April 20, 2015, she received a
phone call at the alternative worksite that informed her that
her services were no longer needed and to leave the center.
Id. at Ex. B, pp. 130-33. Plaintiff cannot state
with certainty from whom she received the phone call.
Plaintiff left the workplace and went home. After learning
that Plaintiff believed she was terminated, NACOG's human
resources director Cathy Steers attempted to contact
Plaintiff and inform her that she had not been terminated.
Id. at Ex. E. Plaintiff did not respond. Ms. Steers
also sent a letter to Plaintiff informing her that she had
not been terminated, but that if she did not return to work
in three days, her absence would be viewed as a voluntary
resignation. Id. at Ex. E. There are some disputes
as to whether Plaintiff contacted or attempted to contact
anyone at NACOG, and Plaintiff herself cannot recall
precisely what she did or when she did it. Id. at
Ex. B, pp. 134-40; Id. at Ex. E. Ms. Steer sent a
letter on April 24, 2015 informing Plaintiff that NACOG
viewed her continued absence as a voluntary resignation.
Id. at Ex. E. Plaintiff brings this lawsuit alleging
that she was wrongfully terminated as a result of her
whistleblowing and complaints about the mold.
judgment is appropriate if the evidence, viewed in the light
most favorable to the nonmoving party, demonstrates
“that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). Substantive law determines
which facts are material and “[o]nly disputes over
facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). “A fact issue is genuine
‘if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.'”
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054,
1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at
248). When the nonmoving party “bear[s] the burden of
proof at trial as to an element essential to its case, and
that party fails to make a showing sufficient to establish a
genuine dispute of fact with respect to the existence of that
element, then summary judgment is appropriate.”
Cal. Architectural Bldg. Prods., Inc. v. Franciscan
Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987)
(citing Celotex Corp. v. Catrett, 477 U.S. 317,
alleges that Defendant is a public employer and that her
termination violated the Fourteenth Amendment. Plaintiff
therefore brings a claim pursuant to 42 U.S.C. § 1983.
Section 1983 only provides a cause of action against
defendants who act under color of state law. See
Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)
(“The ultimate issue in determining whether a person is
subject to suit under § 1983 is the same question posed
in cases arising under the Fourteenth Amendment: is the
alleged infringement of federal rights fairly attributable to
the State?”) (quotations omitted). It is undisputed
that Defendant is a nonprofit organization. As such,
“private parties are not generally acting under color
of state law.” Price v. Hawaii, 939 F.2d 702,
707-08 (9th Cir. 1991). Without “something more,
” an action by a private party is “not sufficient
to justify a characterization of that party as a ‘state
actor.'” Lugar v. Edmonson Oil Co., Inc.,
457 U.S. 922, 939 (1982). Plaintiff has made no showing that
Defendant's actions can be attributable to the State.
Although Defendant is governed by a Council comprised of
public and private sector officials who are appointed by
government officials, Defendant itself is not a government
entity. The employees of Defendant are not government
officials. Plaintiff has made no allegation that government
officials were intimately involved with the operations of
Defendant or that Plaintiff believed herself to be working
closely with government officials.
Plaintiff has not set forth what federal right Defendant
allegedly violated. Section 1983 “provides a remedy
‘against all forms of official violation of federally
protected rights.” Golden State Transit Corp. v.
City of Los Angeles, 493 U.S. 103, 106 (1989) (quoting
Monell v. New York City Dept. of Social Services,
436 U.S. 658, 700-01 (1978)). Therefore, “the plaintiff
must assert the violation of a federal right.”
Golden State Transit Corp., 493 U.S. at 106.
Plaintiff's Complaint only states that “[t]he acts
described herein of the Defendant constitute a violation of
§ 1983 in that the Plaintiff was deprived of her rights,
privileges or immunities secured by the constitution and
federal and state laws.” (Doc. 1, p. 38).
Plaintiff's Response to the Motion for Summary Judgment
also does not assert a specific federal right that was
allegedly violated by Defendants. Plaintiff's general
claims of unlawful discharge and constructive discharge do
not identify a federal right. Even if these claims did
constitute a violation of a federally protected right, they
fail for additional reasons. At trial, Plaintiff will bear
the burden of proof and has not established that she was in
fact discharged. Celotex Corp., 477 U.S. at 322-23.
Plaintiff cannot identify who allegedly called her to tell
her she was terminated, and she has not demonstrates that it
was a representative of Defendant who did so, nor has
Plaintiff presented any other evidence that she was in fact
terminated by the Defendant except by her own failure to
return to work. Defendant has presented evidence of multiple
attempts to inform Plaintiff that she was not terminated.
And, Plaintiff's argument that she was constructively
discharged is raised for the first time in the Response to
the Motion. A new theory of liability may not be added at the
summary judgment phase as it “would prejudice the
defendant who faces different burdens and defenses under this
second theory of liability.” Coleman v. Quaker Oats
Co., 232 F.3d 1271, 1292 (9th Cir. 2000). Plaintiff has
not shown that Defendant was acting under color of state law
or violated a federally protected right, and so the Court
grants summary judgment to Defendant.
also alleges that she was wrongfully terminated in violation
of the Arizona Employment Protection Act
(“AEPA”). The AEPA provides that an employee has
a claim against an employer if the employer “has
terminated the employment relationship of an employee in
violation of a statute of this state.” A.R.S. §
23- 1501(A)(3)(b). Similarly, Plaintiff brings a claim for
whistleblower retaliation. Because the Court has granted summary
judgment on the § 1983 jurisdiction-granting claim, the
Court declines to exercise supplemental jurisdiction over the
remaining state law claims. 28 U.S.C. § 1367(c)(3);
Carnegie-Mellon University v. Cohill, 484 U.S. 343,
357 (1988). Accordingly, the Court remands Plaintiffs state
law claims in Counts I and II to the state court.
cannot establish that Defendant was acting under color of
state law, and so cannot bring a § 1983 claim. Because
the Court dismisses Plaintiffs federal claim, the Court
declines to exercise jurisdiction ...