United States District Court, D. Arizona
O. SILVER SENIOR UNITED STATES DISTRICT JUDGE.
their third amended complaint, Plaintiffs Jose Frisby
(“Frisby”) and Phillip Smith
(“Smith”) (collectively “Plaintiffs”)
allege Defendant Don Jones (“Jones”) terminated
their employment with the Town of Mammoth (the
“Town”) in a manner that deprived Plaintiffs of
their Fourteenth Amendment due process rights (Count One) and
constituted employment discrimination based on
Plaintiffs' Mexican origin (Count Two). (Doc. 29).
Defendants Jones and the Town (collectively
“Defendants”) now move to dismiss. Since
Plaintiffs have failed to allege facts sufficient to support
a Monell claim against the Town in Counts One or
Two, and have failed to allege facts suggesting Jones'
termination of Plaintiffs was discriminatory, as alleged in
Count Two, the Court will grant Defendants' motion as to
these claims. But since Plaintiffs alleged sufficient facts
suggesting Jones terminated their employment without notice
and a chance to be heard, Defendants' motion will be
denied as to Count One against Jones.
two prior attempts to coherently state the factual basis for
their claims, the allegations in Plaintiffs' Third
Amended Complaint are still obscure. That said, Plaintiffs
appear to allege the following. Plaintiffs are of Mexican
origin. On approximately June 24, 2012, Frisby began working
for the Town and, at all relevant times, was working fulltime
in a laborer position. (Doc. 29 at 3). Smith began working
for the Town in approximately June of 2012 and, at all
relevant times, was a permanent full-time classified service
employee assigned to the Public Works Department.
(Id. at 4).
allege that, since Frisby and Smith were permanent, full-time
employees, the Town's personnel policies specified that
they could only be disciplined “for cause” and
specified that any involuntary termination would be
“subject to prior notice and appeal.”
(Id. at 3, 4). The notice and appeal process was to
follow a specific format, such that Frisby and Smith were
entitled to: (1) “guaranteed written prediscipline
notice of any proposed discipline, ” (2) “an
opportunity to respond to any proposed discipline, ”
(3) “written notice of discipline, ” and (4)
“an appeal hearing process which included three
distinct appeal decision levels; an initial appeal to the
Town Manager or Delegatee, [a] second level consisting of a
hearing before an independent Hearing Officer paid for by the
Town of Mammoth that must be scheduled and occur within 30
days from the date of the notice of appeal, and a third level
to the Mammoth Town Council.” (Id. at 3).
allege that, during their employment, they possessed the
qualifications required for their jobs and performed their
duties in a competent manner. (Id. at 4). Despite
this, Plaintiffs allege that on approximately January 29,
2015, Rudy Burrolla (“Burrolla”), then interim
Public Works Director, informed Plaintiffs that their
employment with the Town was terminated. (Id. at 4).
Burrolla did not provide any documentation regarding their
termination, and did not follow the Town's policies as
set forth above. (Id.). Plaintiffs allege Burrolla
terminated Plaintiffs at the direction of his supervisor, Don
Jones (“Jones”), who was the Town's Mayor.
(Id. at 5-6). Plaintiffs allege that, at the time,
Jones was exercising “final policy-making authority for
the Town” and had the “authority to direct,
control, and ratify” subordinate Burrolla's
conduct. (Id. at 6).
further allege that, on January 29, 2015, Jones
“attended and presided over a meeting of the Mammoth
Town Council during which [Jones] told [the council-members]
present that [P]laintiffs' employment with the Town of
Mammoth had been terminated.” (Id. at 5).
Plaintiffs allege that, in doing so, Jones was acting as a
“managing agent” with “final policy making
authority” for the Town. (Id. at 2; 5).
However, although Plaintiffs allege Jones was acting with
“final policy making authority” at this meeting,
Plaintiffs also inconsistently allege that, at the same Town
Council meeting, the Mammoth Town Council acted with
“final policy-making authority” and
“ratified” Jones' decision to terminate
Plaintiffs. (Id. at 5).
the January 29, 2015, meeting, Plaintiffs allege they were
given a written memo “describing the January 29, 2015
terminations as a suspension without pay pending a Notice of
Recommended Termination with a meeting scheduled for February
10, 2015.” (Id. at 5). Plaintiffs do not
allege who sent this memo, and also do not allege whether a
meeting in fact occurred on February 10, 2015, and, if so,
what transpired during it. Plaintiffs do, however, allege
that they received a letter dated February 19, 2015,
notifying them that their employment had been terminated.
(Id.). Once again, Plaintiffs do not indicate who
made the termination decision, who drafted the termination
letter, or when the termination decision was made.
then allege that, on approximately February 25, 2015,
Plaintiffs submitted written appeals regarding their
termination and suspension without pay. (Id. at 6).
Plaintiffs allege they hand-delivered their appeals to the
clerk, S. Lopez, who worked at the Mammoth Town Hall on
behalf of the Mammoth Town Clerk. (Id.). Allegedly,
the Town never contacted Plaintiffs, never provided
Plaintiffs with an appeal process, and never provided
Plaintiffs with an appeal hearing. (Id.). Plaintiffs
allege these failures were “the result and product of a
policy, practice, and/or custom of [the Town and Jones],
” and then reiterate that Jones-not the Town
Council-was, at all relevant times, “vested by the
Mammoth Town Council to exercise final policy-making
their termination, Plaintiffs initiated this suit, naming
both Jones and the Town and alleging violations of due
process and claims of discrimination. Defendants then filed a
motion to dismiss. The Court denied the motion as to
Plaintiffs' claim against Jones for his alleged
termination of Plaintiffs without notice and a chance to be
heard, but granted Defendants' motion as to the remainder
of Plaintiffs' claims. (Doc. 26). In doing so, the Court
gave Plaintiffs one final opportunity to amend.
then filed their Third Amended Complaint (the
“complaint”) alleging two counts against Jones
and the Town. Plaintiffs' first claim is brought
pursuant to 42 U.S.C. § 1983 and alleges the Town's
and Jones's actions deprived Plaintiffs of their
employment in violation of their due process rights under the
Fourteenth Amendment. Plaintiffs' second claim is brought
pursuant to 42 U.S.C. § 1981 and alleges the Town's
and Jones's decisions to suspend and/or terminate
Plaintiffs constituted employment discrimination based on
their Mexican origin. (Id. at 7-8). Defendants now
move to dismiss each claim.
survive a motion to dismiss for failure to state a claim, a
complaint must include a “short and plain statement of
the claim showing that the pleader is entitled to
relief.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007); Fed. R. of Civ. P. 8(a)(2); see
also Ashcroft v. Iqbal, 556 U.S. 662, 696 (2009) (The
complaint must contain “enough facts to state a claim
to relief that is plausible on its face.”). This
requires “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” Twombly, 550 U.S. at 555.
Instead, “[a] claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Wilson v.
Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012)
(quoting Iqbal, 556 U.S. at 678). When evaluating a
motion to dismiss, a court accepts all factual allegations as
true and draws all reasonable inferences therefrom, but need
not accept legal conclusions. See Twombly, 550 U.S.
at 555; Coal. for ICANN Transparency, Inc. v. VeriSign,
Inc., 611 F.3d 495, 501 (9th Cir. 2009); Steckman v.
Hart Brewing, Inc., 143 F.3d 1293, 1296-98 (9th Cir.
Count One: 42 U.S.C. § 1983 - Due Process under ...