Ellen Gordon-Ross v. Nuview Union School District

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 10 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
ELLEN GORDON-ROSS, No. 09-56680
Plaintiff - Appellant, D.C. No. 5:09-cv-00670-VAP-OP
v.
MEMORANDUM *
NUVIEW UNION SCHOOL DISTRICT,
a political subdivision,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Submitted May 6, 2011 **
Pasadena, California
Before: SILVERMAN, TALLMAN, and CLIFTON, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Plaintiff Ellen Gordon-Ross brought this action against her employer,
Nuview Union School District (NUSD).1 Gordon-Ross appeals the district court’s
dismissal of the two claims in her First Amended Complaint under Federal Rule of
Civil Procedure 12(b)(6). We affirm.
Gordon-Ross’s first claim alleged NUSD violated her federal civil rights
under 42 U.S.C. § 1983. After reviewing Gordon-Ross’s original complaint, the
district court correctly noted that her § 1983 claim was actually a Title VII claim
for age and gender employment discrimination. Cf. Ahlmeyer v. Nev. Sys. of
Higher Educ., 555 F.3d 1051, 1057 (9th Cir. 2009); Candelore v. Clark Cnty.
Sanitation Dist., 975 F.2d 588, 590 (9th Cir. 1992). Because Gordon-Ross had not
pled that she met Title VII’s exhaustion requirements, see, e.g., Surrell v. Cal.
Water Serv. Co., 518 F.3d 1097, 1104–05 (9th Cir. 2008), the district court
dismissed the original complaint with leave to amend. The court’s order included a
detailed legal analysis explaining how Gordon-Ross could amend her complaint to
properly state a valid claim.
Eschewing the district court’s guidance, Gordon-Ross’s amended complaint
contained no significant revisions. Her amended complaint still did not allege any
1
The parties are familiar with the facts, and we repeat them only as
necessary to explain our disposition.
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non-employment-based § 1983 claims—which would not require Title VII
exhaustion—nor did it allege that she had exhausted Title VII remedies. Further,
Gordon-Ross never argued before the district court that she could possibly include
the necessary allegations if further leave to amend was granted. Accordingly, the
district court appropriately dismissed Gordon-Ross’s § 1983 claim with prejudice.
Gordon-Ross’s second claim sought a writ of mandamus under California
Code of Civil Procedure section 1085. Gordon-Ross argued NUSD violated her
statutory rights to re-employment under California Education Code section 44956
by laying her off and then re-hiring her to a lesser teaching position. Gordon-Ross
sought a writ compelling the school district to re-hire her to her original position
(kindergarten teacher).
The district court correctly dismissed Gordon-Ross’s second claim for two
reasons. First, the claim is time-barred because Gordon-Ross did not challenge
NUSD’s decision to lay her off within thirty days. See Cal. Gov’t Code § 11523.
Gordon-Ross cites no case that would allow her petition to be filed outside this
time window. Although she argues the time limit does not apply because she also
brought the § 1983 claim, that argument lacks merit.
Second, the district court properly dismissed Gordon-Ross’s second claim
because mandamus can be invoked only to compel a purely ministerial duty—i.e.,
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an act the government entity is required by law to perform. Ridgecrest Charter
Sch. v. Sierra Sands Unified Sch. Dist., 130 Cal. App. 4th 986, 1002 (Cal. Ct. App.
2005). Mandamus cannot compel a government entity to exercise its discretion.
Id. Although NUSD was statutorily required to re-hire teachers in order of
seniority, see Cal. Educ. Code § 44956, the specific positions into which they are
re-hired is up to NUSD. Thus, Gordon-Ross cannot seek a writ of mandamus
compelling NUSD to re-hire her as a kindergarten teacher.
Each party shall bear its own costs.
AFFIRMED.
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