Opinion
02:06-cv-0340-GEB-KJM.
September 13, 2006
ORDER
This motion was determined to be suitable for decision without oral argument. L.R. 78-230(h).
Defendant moves for summary judgment on Plaintiff's federal claims and moves to dismiss his remaining state claims for lack of subject matter jurisdiction. Plaintiff opposes the motion.
BACKGROUND
Plaintiff Dennis Parker ("Plaintiff") worked as the General Manager of the Yuba County Water District ("the District") from approximately 1984 until his employment was terminated in late 2005. (Pl.'s Statement of Undisputed Facts ("SUF") ¶¶ 3-4.) After his termination, he brought this action against the District asserting claims for disability discrimination under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., retaliation under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq., and denial of procedural due process under 42 U.S.C. § 1983 ("section 1983"). (Pl.'s Am. Compl. ¶¶ 13, 15-17.) Plaintiff also asserts state claims for disability discrimination under the California Fair Employment and Housing Act, California Government Code § 12940, breach of contract, intentional infliction of emotional distress, hostile work environment, and wrongful termination in violation of public policy. (Id. ¶¶ 14, 18-23.)
Plaintiff does not specify whether his hostile work environment claim is brought under Title VII, the California Fair Employment and Housing Act, or some other state statute. (See Pl.'s First Am. Compl. ¶ 21.) Since the parties treat the hostile work environment claim as a state claim, it is assumed for the purposes of this motion that this claim is based on state law.
DISCUSSION
The standards applicable to motions for summary judgment are well known and need not be repeated here.
I. ADA
The District argues Plaintiff cannot maintain an ADA discrimination claim because the District "did not have the statutory minimum number of employees required to qualify as a covered employer under the ADA." (Def.'s Mot. at 3.) Under the ADA, a "covered entity" cannot discriminate against an individual with a disability on the basis of his disability. 42 U.S.C. § 12112(a). The term "covered entity" includes an "employer." Id. § 12111(2). The ADA defines an employer as "a person engaged in an industry affecting commerce who has [fifteen] or more employees for each working day in each of [twenty] or more calendar weeks in the current or preceding calendar year," and defines an employee as "an individual employed by an employer."Id. § 12111(4), (5)(A). Consequently, Plaintiff may maintain an ADA discrimination claim against the District only if the District employed fifteen omore employees in 2005, the year the alleged discrimination took place, or in 2004, the preceding year. Clackamas Gastroenterology Assocs. v. Wells, 538 U.S. 440, 441-42 (2003). Since Plaintiff concedes the District employed a maximum of thirteen individuals in 2004, (SUF ¶¶ 13-14, 16, 19), the District must have employed fifteen or more individuals in 2005 for the ADA to be applicable.
In 2004, the District employed seven individuals on either a full or part-time basis in twenty or more weeks; the District and Plaintiff agree these individuals are "employees" for purposes of the ADA. (SUF ¶¶ 13-14.) Plaintiff also asserts the Recording Secretary and the five members of the Board of Directors should be considered employees under the ADA, (SUF ¶¶ 16, 19), but since addition of these six individuals would not equal fifteen employees, this issue need not be reached.
In 2005, the District employed ten individuals on either a full or part-time basis during twenty or more weeks. (SUF ¶¶ 7-8.) The District and Plaintiff agree these ten individuals should be considered employees for purposes of the ADA. (Def.'s Mot. at 9-10; Pl.'s Opp'n at 1.) However, the parties disagree as to whether the five members of the Yuba County Water District Board of Directors ("Board of Directors") should be considered "employees" as that term is defined under the ADA. (Def.'s Mot. at 7; Pl.'s Opp'n at 2.) The District argues the Board of Directors are not employees because these individuals "did not have an employment relationship with [the District]." (Def.'s Mot. at 9.) Plaintiff rejoins that the members of the Board of Directors are employees based on their duties at the District. (Pl.'s Opp'n at 2.) The District contends that whether the members of the Board of Directors are employees for purposes of the ADA, and whether these members are employees or employers, should be determined under "the [g]eneral law of agency. . . ." (Def.'s Reply at 1-2, 5.)
Plaintiff also contends two other individuals should be considered employees, (Pl.'s Opp'n at 1-2), but since addition of these two individuals would not equal fifteen employees, this issue need not be reached.
In Clackamas, the Supreme Court observed that the definition of an employee under the ADA "qualifies as a nominal definition that is completely circular and explains nothing." 538 U.S. at 444 (citation and quotation marks omitted). The Supreme Court stated "that when Congress has used the term 'employee' without defining it, we have concluded that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine." Id. at 445 (citation omitted). The Supreme Court found that the common law "definition of the master-servant relationship" provides "helpful guidance" in the context of the ADA, and that the "relevant factors defining the master-servant relationship focus on the master's control over the servant." Id. The Supreme Court articulated six factors that are helpful for determining whether a director should be considered an employer or an employee for purposes of the ADA, but emphasized "that the common law element of control is the principal guidepost that should be followed" when making this determination. Id. at 449-50.
The six factors articulated by the Supreme Court are:
[1] Whether the organization can hire or fire the individual or set the rules and regulations of the individual's work[,]
[2] Whether and, if so, to what extent the organization supervises the individual's work[,]
[3] Whether the individual reports to someone higher in the organization[,]
[4] Whether and, if so, to what extent the individual is able to influence the organization[,]
[5] Whether the parties intended that the individual be an employee, as expressed in written agreements or contracts[,]
[6] Whether the individual shares in the profits, losses, and liabilities of the organization.Clackamas, 538 U.S. at 449-450.
Although the parties dispute the exact role of the members of the Board of Directors and what influence, if any, they had over the day-to-day activities of the District, both parties agree that the five members of the Board of Directors did not respond to anyone higher in the District hierarchy or to any superior body. (SUF ¶ 27.) The relevant inquiry is whether the members of the Board of "[D]irectors operate independently and manage the business or instead are subject to the [District's] control."Clackamas, 538 U.S. at 448. The members of the Board of Directors did not report to a higher authority within the business; therefore, they were not subject to the District's control. Consequently, the five members of the Board of Directors were not employees for the purposes of the ADA and the District did not employ fifteen or more employees in 2005.
Since no genuine issue of material fact exists as to whether the District employed fifteen or more employees in 2005, the motion for summary judgment on Plaintiff's ADA discrimination claim is granted. II. Title VII
In a footnote, the District moves "in the alternative" to dismiss Plaintiff's ADA claim under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure "because Plaintiff's Complaint is devoid of any allegation regarding the number of employees he claims [the District] had." (Def.'s Mot. at 4 n. 1.) Since the motion for summary judgment has been granted, this argument need not be reached.
The District argues Plaintiff cannot maintain a Title VII retaliation claim because the District did not employ the statutory minimum number of employees required to qualify as a covered employer under Title VII. (Def.'s Mot. at 11.) Like the ADA, the retaliation provisions of Title VII "appl[y] to an employer only if that employer employs [fifteen] or more employees." Anderson v. Pacific Maritime Ass'n, 336 F.3d 924, 929 (9th Cir. 2003) (citing 42 U.S.C. § 2000e(b), andClackamas, 538 U.S. at 441 n. 1). Title VII also defines an employee as "an individual employed by an employer," but unlike the ADA, Title VII excludes from that definition any individual who is "elected to public office in any State or political subdivision of any State by the qualified voters thereof . . . or an appointee on the policy making level. . . ." 42 U.S.C.A. § 2000e(f); see also Goldsmith v. City of Atmore, 996 F.2d 1155, 1162 n. 10 (11th Cir. 1993) (noting the definition of "employee" under Title VII excludes elected and appointed officials); Starrett v. Wadley, 876 F.2d 808, 814 (10th Cir. 1989) (same); Teneyuca v. Bexar County, 767 F.2d 148, 151 (5th Cir. 1985) (same).
An examination of the legislative history surrounding the enactment of the ADA reveals that Congress adopted or incorporated by reference several definitions contained in Title VII into the ADA, but deliberately chose not to include the elected official exception contained in Title VII. See H.R. Rep. No. 101-485 (II) at 336 (1990) (reprinted in 1990 U.S.C.C.A.N. 303, 336) (observing "[t]he exception set out in Title VII . . . for elected officials . . . has been deleted"); H.R. Rep. No. 101-485 (II), at 455 (1990) (reprinted in 1990 U.S.C.C.A.N. 445, 455) (stating "[t]he exception set out in Title VII for elected officials . . . is not incorporated in the ADA").
The parties agree all five members of the Board of Directors were either appointed or elected to their positions. (SUF ¶ 18.) Plaintiff concedes the five board members cannot be considered employees under the definitions set forth in Title VII, and acknowledges that when these individuals are excluded from the total number of persons who worked for the District during the relevant time period, the District employed less than fifteen employees. (Pl.'s Opp'n at 20.) Since Plaintiff cannot maintain a Title VII claim against the District, its motion for summary judgment on Plaintiff's retaliation claim is granted. III. Section 1983
Plaintiff requests that the citation to Title VII in his Complaint be deemed "amended to refer instead to [the ADA]," or alternatively "requests leave to file an Amended Complaint with that change pursuant to Rule 15(a)." (Id.) However, the Status (Pretrial Scheduling) Order ("Status Order") issued May 24, 2006, stated "[n]o further . . . amendments to pleadings is permitted. . . ." (Status Order at 1.) Once a scheduling order establishes a deadline for amendment of the pleadings, modification of that deadline is governed by the "good cause" standard of Rule 16(b). Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). Since Plaintiff has not demonstrated that modification of the Scheduling Order is proper under Rule 16, his request to deem his Complaint amended and his request for leave to file an amended complaint are denied.
The District argues Plaintiff cannot maintain a section 1983 claim because "a cause of action under the ADA itself does not exist" and "Plaintiff cannot use [section] 1983 as a conduit to the ADA" under such circumstances. (Def.'s Mot. at 11.) Defendant misconstrues the nature of the section 1983 claim; the claim is not predicated upon a violation of the disability discrimination provisions of the ADA, but rather upon a violation of the procedural due process clause of the Fourteenth Amendment for "firing [Plaintiff] without notice and a meaningful opportunity to be heard. . . ." (Pl.'s First Am. Compl. ¶¶ 16-17.) When conduct violates both the ADA as well as rights derived from another source, such as the Constitution, a plaintiff may maintain a claim under both the ADA and section 1983. See Starrett v. Wadley, 876 F.2d 808, 814 (10th Cir. 1989) (stating that if "a plaintiff can show a constitutional violation by someone acting under color of state law, then the plaintiff has a cause of action under section 1983, regardless of Title VII's concurrent application"); Day v. Wayne County Bd. of Auditors, 749 F.2d 1199, 1205 (6th Cir. 1984) (stating that "[w]here an employee establishes employer conduct which violates both Title VII and rights derived from another source-the Constitution or a federal statute . . . the claim based on the other source is independent of the Title VII claim, and the plaintiff may seek the remedies provided by [section] 1983 in addition to those created by Title VII"); cf. Meade v. Merchants Fast Motorline, Inc., 820 F.2d 1124, 1127 (10th Cir. 1987) (stating a "plaintiff may properly pursue his cause of action under [section] 1981 for private employment discrimination despite the applicability of Title VII to the same conduct"). Therefore, the District's motion for summary judgment on Plaintiff's section 1983 claim is denied.
IV. State Claims
The District argues that Plaintiff's remaining state claims must be dismissed for lack of subject matter jurisdiction because "with all [federal] claims failing, so does this Court's subject matter jurisdiction." (Def.'s Mot. at 12.) However, a federal claim remains and supplemental jurisdiction exists over the state claims under 28 U.S.C. § 1367.
CONCLUSION
For the stated reasons, the District's motion for summary judgment on Plaintiff's ADA and Title VII claims are granted, but its motion for summary judgment on Plaintiff's section 1983 claim is denied.
IT IS SO ORDERED.