ORDER
Pending before the Court is the motion to dismiss of Defendants Alhambra School District No. 68, Robert Zamora, Ray Martinez and Mari Alvarado.
BACKGROUND
Plaintiff Karen Williams began employment with Defendant Alhambra School District (“Alhambra” or “the District”) as Alhambra’s Superintendent on or around July 1, 2010.
Williams, an African-American woman, alleges that her employment ended as the result of a “discriminatory plan of removing Williams in favor of a Latino/Hispanic candidate” for Superintendent. (Id. at 22.) She alleges that early in her tenure as Superintendent, Defendant Zamora told Williams that he believed District staff-including the Superintendent position— should be filled by candidates who “reflect[ed] the predominately Latino community demographic.” (Id. at 4.) Williams told Zamora that she would recommend “the best and most qualified candidates for the positions regardless of race, color, or national origin.” (Id.) Williams alleges that another Board member told Williams, on July 23, 2013, that Defendants Zamora and Alvarado “intended to conspire together to ensure that Alhambra engaged in discriminatory practices with respect to furthering the agenda to replace Williams and her peers with Latino employees.” (Id. at 6.) Other Alhambra employees soon told Williams the same thing.
Williams had renegotiated her employment contract in April, 2012, after having served as Superintendent for nearly two years. (Id. at 5.) She was offered, and she accepted, a new contract in May of that year. (Id.) That contract provided for her continued employment as Superintendent from July 1, 2012, until June 30, 2015. (Id.)
In January, 2015, discussions between the Board and Williams regarding an extension or renewal of Williams’s contract commenced. (Id. at 15.) The Board and Williams met in executive session on January 22; the Board agreed to offer Williams a one year extension to her contract, and Williams agreed to the Board’s proposal. (Id.) In the open meeting that followed, the Board voted unanimously to provide Williams with the contract renewal. (Id.)
After this meeting came negotiations over the contract. Although Williams alleges she accepted the extension of her con
On February 19, 2015, the Board met. Two separate items on the agenda dealt with approving Williams’s proposed modifications and her new contract. But no approval was forthcoming. One Board member (not a defendant here) moved to approve each item, but both motions failed for lack of a second. (Id. at 17.) On February 25, another meeting was held, with a new agenda item, regarding the selection of a firm to conduct the search for a new Superintendent. (Id. at 18.) A search firm was selected by a vote of three-to-one at a meeting on March 2. (Id. at 18-19.)
On March 26, the Board approved certain measures relating to the search for a new Superintendent. The Board then voted three-to-two to place Williams on non-disciplinary paid leave effective immediately, and voted three-to-one to appoint an interim Superintendent. On. April 3, Williams received a letter from Alhambra’s attorney notifying her that the Board had voted not to renew her contract. On June 4, the Board voted to offer a contract to Mark Yslas, who became the new Superintendent.
Throughout the Board meetings in February and March, members of the public voiced concerns that Williams was the victim of discrimination. (Id. at 18-20.) On March 2 and again on March 26, Williams made “impassioned” public speeches at Board meetings, complaining that she was being discriminated against and reiterating her desire to remain as Superintendent. (Id.) At least one non-Defendant Board member also publicly spoke out against what she saw as discriminatory and improper actions by Defendants Zamora/Alvarado and Martinez, (Id. at 20.)
Williams brings this suit alleging various claims against the District itself and the three members of the Board who voted to replace her and allegedly discriminated against her. She alleges racé, color and national origin discrimination, and retaliation under Title VII; various violations of her constitutional and statutory rights; violation of her right to contract under 42 U.S.C. § 1981; and three state law claims: breach of contract, breach of the implied covenant of good faith and fair dealing, and wrongful termination. Defendants seek dismissal for failure to state a claim.
DISCUSSION
I. Legal Standard
To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than “labels and conclusions” or a “formulaic recitation of the elements of a cause of action”; it must contain factual allegations sufficient to “raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,
When analyzing a complaint for failure to state a claim under Rule 12(b)(6), “[a]ll allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party.” Smith v. Jackson,
II. Analysis
A. Duplicative & Improper Parties
As an initial matter, Defendants challenge Williams’s naming of the Board members as parties both in their official and individual capacities. They argue that Williams cannot name the Board members in their official capacity, since she has also named the District itself as a defendant, and that she cannot name them in their individual capacity since they have immunity as school board members.
A suit against a school board member in his or her official capacity is equivalent to a suit against the school district. See Ctr. for Bio-Ethical Reform, Inc. v. L.A. Cty. Sheriff Dep’t,
Defendants assert that they are entitled to absolute immunity from suit in their individual capacity because of their status as school board members. However, school board members are entitled only to assert a qualified good-faith immunity for liability under § 1983. See Wood v. Strickland,
The Board member Defendants are therefore entitled only to qualified immunity. This protects them from suit “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
No official can in good faith impose discriminatory burdens on a person or group by reason of a racial or ethnic animus against them. The constitutional right to be free from such invidious discrimination is so well established and so essential to the preservation of our constitutional order that all public officials must be charged with knowledge of it.... [0]nce a defendant is shown to have acted with intent to discriminate based on racial or ethnic hostility, such intent constitutes the malicious intention to cause a deprivation of constitutional rights that is inconsistent with the subjective state of mind required for the defense of good faith immunity.
Flores v. Pierce,
B. Title VII Claims
At the motion to dismiss stage, a plaintiff need not present a prima facie case of employment discrimination under Title VII, but must merely allege facts plausibly suggesting an entitlement to relief. See Swierkiewicz v. Sorema N. A.,
1. Count I: Race Discrimination
As an African-American, Williams belongs to a protected class. See Lyons v. England,
There remains the question of whether Williams was subject to an adverse employment action, without which she cannot plausibly allege that she is entitled to relief either under a direct or circumstantial theory.
Under Arizona law, school administrators are not entitled to a renewal of them contracts. See Paczosa v. Cartwright Elementary Sch. Dist. No. 83, 222 Ark. 73, 79,
The Eleventh Circuit, for example, recently held that a non-renewal of a superintendent’s contract by a school board may constitute adverse employment action in the Title VII discrimination context. See Quigg v. Thomas Cty. Sch. Dist.,
2. Count II: National Origin/Color Discrimination
Title VII also prohibits employment discrimination on the basis of color and national origin. 42 U.S.C. § 2000e-2. Williams includes both in her Count II, but the two are distinct.
Little authority exists defining the contours of a plausible color discrimination claim,, and that which does exist is not binding on' this Court. Courts that
Williams has, however, alleged a plausible claim for national origin discrimination. She alleges that Zamora and Martinez made public comments that Williams’s national origin did not reflect that of the community. (Doc. 16 at 22.) She alleges specifically that at a community luncheon, Martinez stated that Alhambra should focus its efforts to cater to “Mexi-canos,” and therefore staff Alhambra with “Latino/Hispanic” employees. (Id.) Whether Martinez meant to use “Mexicanos” as a term of nationality or of ethnicity is ambiguous from context, from general usage, and indeed from the concept of ethnicity itself. As other courts have recognized, the line between national origin and ethnicity may be a blurry one. See Salas v. Wisc. Dep’t of Corr.,
Williams has thus stated a plausible claim for national origin discrimination, but not color discrimination. Count II survives insofar as it alleges national origin 'discrimination.
3. Count III: Retaliation
The Civil Rights Act of 1964 also “prohibits retaliation against an employee ‘because [she] has opposed any practice made an unlawful employment practice’ ” by Title VIL Nelson v. Pima Cmty. Coll.,
Here, there is at least a plausible allegation that Williams was retaliated against. Protected activity, for Title VII retaliation purposes, includes formal and informal complaints of activity that the employee reasonably believes violates Title VII. See, e.g., Ray v. Henderson,
For the second, she has plausibly alleged being subjected to an adverse employment action. “Adverse employment actions” are defined more broadly in the context of retaliation than in the context of substantive discrimination. See Burlington N. & Santa Fe Ry. Co. v. White,
Finally, she has plausibly alleged a causal link between her protected activity and the adverse employment actions. At this early stage in the litigation, Williams need only show “that the protected activity and the negative employment action are not completely unrelated.” See Poland v. Chertoff,
C. Count IV: 42 U.S.C. § 1983
“To state a claim for relief in an action brought under § 1983, [plaintiffs] must [allege] that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law.” Am. Mfrs. Mut. Ins. Co. v. Sullivan,
Under this Count as well as Count V, Williams seeks relief against both the indi
To hold members of a school board liable under § 1983 or § 1981, the plaintiff must overcome the members’ qualified immunity. As discussed above, Williams has “adequately allegefd] the commission of acts that violated clearly established law,” as she must to defeat qualified immunity at this stage of litigation. See Mitchell v. Forsyth,
To hold a government body such as a school board liable under § 1983 or § 1981, the plaintiff must demonstrate that the violation occurred as a result of a “deliberate policy, custom, or practice.” See Galen v. Cty. of L.A.,
Williams has sufficiently so alleged. The three individual Defendants constituted a majority of the Board beginning in January, 2015, and continuing throughout the period of contract negotiations, up through the decision to hire a replacement Superintendent in Williams’s place. Williams alleges that each of the three wished to replace her with a Hispanic Superintendent; taking these allegations as true, it is plausible to infer that when they voted to replace Williams, they were acting out of racially discriminatory motives. This suffices to establish that a policy, custom or practice of the Board led to Plaintiffs constitutional claims. Cf. Kawaoka v. City of Arroyo Grande,
Substantively, Williams alleges violations of her First Amendment right to free speech and her Fourteenth Amendment rights to equal protection and due process.
Williams has properly stated a claim for violation of her First Amendment rights. To make out a claim of First Amendment retaliation against a public employer, a plaintiff must show that “(1) [t]he employee engaged in constitutionally protected speech, (2) the employer took adverse employment action against the employee, and (3) the employer’s speech was a ‘substantial or motivating’ factor in the adverse action.” Freitag v. Ayers,
Whether an employee speaks pursuant to her official duties or as a private citizen is a “ ‘practical,’ fact-specific inquiry.” Dahlia,
Williams has also sufficiently alleged a violation of her rights under the Equal Protection Clause of the Fourteenth Amendment. A complaint that sufficiently states a claim for race discrimination under Title VII also sufficiently states a claim under § 1983 through the Equal Protection Clause. See, e.g., FDIC v. Henderson,
Williams has also sufficiently alleged a claim under the Due Process Clause of the Fourteenth Amendment. “To establish a due process violation, a plaintiff must show that he has a protected property interest under the Due Process Clause and that he was deprived of the property without receiving the process that he was constitutionally due.” Levine v. City of Alameda,
Therefore, Williams has sufficiently alleged claims under § 1983 for violations of her First Amendment right to free speech and her Fourteenth Amendment rights to equal protection and due process.
D. Count V: 42 U.S.C. § 1981
Section 1981 protects the equal right of all persons to, among other things, “make and enforce contracts.” 42 U.S.C. § 1981. This broadly includes protections against impermissible discrimination in thá context of an employment relationship. See Manatt v. Bank of Am., NA,
E. Count VI: Breach of Contract
To succeed in a breach of contract claim, a plaintiff must show that an enforceable contract exists, that it was
The Board allegedly “agreed to offer Williams a one year extension to- her 2012 contract” on January 22, 2015, through a unanimous vote in an open Board meeting. (Doc. 16 at 15.) Williams “accepted the Board’s proposal,” and during discussions of the contract’s details communicated to Alhambra’s attorney that she accepted the contract regardless of whether or not her requested modifications were made. (Id. at 15-16.) A plaintiff may not, of course, survive a motion to dismiss simply by using the words “offer” and “acceptance.” See Twombly,
Defendants also raise the Statute of Frauds as an affirmative defense to Williams’s breach of contract claim. Under the Statute of Frauds, “an agreement which is not to be performed within one year from the making thereof’ will not be enforced “unless the promise or agreement upon which the action is brought, or some memorandum thereof, is in writing and signed by the party to be charged, or by-some person by him thereunto lawfully authorized.” A.R.S. § 44-101. The contract extension that Williams and the Bpard were negotiating in early 2015 was to begin when Williams’s current contract expired in June, 2015, and continued for a year thereafter. This brings it within the Statute of Frauds. See Co-Op Dairy, Inc. v. Dean,
Affirmative defenses are most properly raised in a responsive pleading. See Vernon v. Heckler,
F. Count VIII: Breach of the Implied Covenant of Good Faith and Fair Dealing
“Arizona law implies a covenant of good faith and fair dealing in every
G. Count VII: Wrongful Termination
Count VII seeks relief under A.R.S. § 23-1501, governing the wrongful termination of employees; specifically, the provisions barring termination in retaliation for the employee’s refusal to violate Arizona law or reporting of violations of Arizona law. See A.R.S. § 23—1501(3)(c)(i—ii). The statute does not explicitly define termination, but a breach of an employment contract is one action that may constitute wrongful termination. See A.R.S. § 23-1501(3)(a). That provision is not the provision that Williams cites, but as the statute lists other forms of wrongful termination not involving an actual breach of contract, it is reasonable to interpret termination broadly to include an ending of the employment relationship, and wrongful termination to be an ending of the employment relationship in improper, statutorily-defined circumstances. Subsection (3)(c) prohibits termination in retaliation for the employee’s reasonable disclosure of “information or reasonable belief’ that the employer is violating the Constitution or laws of Arizona. In this way, it is analogous to Williams’s retaliation claims under Title VII and § 1983 and is, likewise, sufficiently pled.
There is, however, a question of whether Williams is foreclosed from seeking judicial relief. The \yrongful termination statute provides that if an employee is terminated in violation of a state statute, and that statute provides a remedy, then the employee is limited to the statutory remedy and may not sue under the wrongful termination statute. A.R.S. 23-1501(3)(b).
Five statutes are specifically listed in A.R.S. 23-1501(3)(b) as providing exclusive remedies. One of these, A.R.S. § 38-532, proscribes certain whistleblowing-related retaliation and'provides for a mandatory administrative remedy.
But the wrongful termination statute also contains its own prohibition on whist-leblowing-related retaliation, and it is this provision under which Williams brings suit. See A.R.S. 23-1501(3)(c). The two provisions are sufficiently different as to give full effect to each. Section 38-532 only applies when the employee has made a disclosure to a public body, in writing, including certain statutorily enumerated information about a violation that has taken place. Section 23—1501(3)(c), on the other hand, extends broadly to disclosures made “in a reasonable manner,” of “information or a reasonable belief,” made to an employer or the representative of an employer, of past, present, or possible future violations of Arizona constitutional or statutory law—and, indeed, to a simple refusal by the employee to comply with unconstitutional or illegal directions.
The two statutes are thus distinct, made all the more apparent because Williams’s allegations clearly fall within the text of § 23—1501(3)(c) and are not clearly within the text of § 38-532. She is not relegated to the administrative remedy of § 38-532
H. Punitive Damages
Williams requests “punitive damages pursuant to Title VII, 42 U.S.C. § 1983, and 42 U.S.C. § 1981,” from Defendants. Alhambra, however, is immune from punitive damages for violations of Title VII, 42 U.S.C. § 1983, and 42 U.S.C. § 1981. See 42 U.S.C. § 1981a(b)(l) (barring recovery of punitive damages against a political subdivision); City of Newport v. Fact Concerts,
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss is granted in part and denied in part. Plaintiffs claims (1) for color discrimination under Title VII; (2) for relief under 42 U.S.C. § 1983 based on a violation of state law; and (3) for punitive damages from Defendant Alhambra School District No. 68 are dismissed and the motion is denied in all other aspects.
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss (Doc. 18) is GRANTED in part and DENIED in part.
. The Court takes as true the allegations in Plaintiffs Amended Complaint at this stage of the litigation. See Smith v. Jackson,
. Allegedly, Zamora and Alvarado (and later Martinez) also sought to remove Williams because she refused to recognize or endorse an organization called the Alhambra District Education Association ("ADEA”) as the official union of the District. (Doc. 16 at 6.)
. Defendants do assert, with respect to Williams's wrongful termination claim, that the District, as a "public entity,” is immune under A.R.S. § 12-820.01. That statute, in relevant part, provides absolute immunity to "public entities” for acts and omissions of employees constituting a "legislative function” or an "administrative function involving the determination of fundamental government policy." Administrative functions, in turn, include the "determination whether to seek or whether to provide the resources necessary for ... hiring of personnel.” A.R.S. § 12-820.01(B). As discussed in the above paragraph, this cannot immunize the District against the federal law claims of Counts I through V, and the hiring of an employee is not a legislative function. And Arizona courts have made clear that the administrative functions covered by the statute are those at the policymaking level, rather than the individual implementation level. See A Tumbling-T Ranches v. Flood Control Dist. Of Maricopa Cty.,
. This is one of three reasons why A.R.S. § 15-1443(C), also cited by Defendants, does not provide them with absolute immunity. A second reason is that the statute applies to community college district boards, not elementary school district boards. Even setting aside these first two bars to its application, the statute only confers immunity for actions taken "in good faith” and "within the scope of [the members’] authority”—which sounds in qualified, rather than absolute, immunity. Likewise, the statute that does confer immunity on school district board members, A.R.S. § 15—341(E), does not apply in cases of "intentional misconduct.”
. Swierkiewicz remains good law even after the clarification of pleading standards in Bell Atlantic Corp. v. Twombly,
. To the extent that Williams asserts a claim for a violation of state open meeting laws with respect to her, those claims cannot be brought under § 1983 since such claims are not secured to her by the Constitution or laws of the United States, Such claims are, therefore, dismissed.
. To illustrate this, the Ninth Circuit contrasted an employee writing a "routine report ... about a particular incident or occurrence” with an employee raising “broad concerns about corruption or systemic abuse.” Dahlia,
. There is no dispute that, on the facts alleged, any contract for an extension was supported by consideration, contained specific terms, was breached, and the breach thereof caused damage to Williams.