United States District Court, D. Nevada
JENNY A. HUNT, f.k.a. JENNY A. RICCI, Plaintiff,
WASHOE COUNTY SCHOOL DISTRICT, a political subdivision of the State of Nevada, Defendant.
R. HICKS UNITED STATES DISTRICT JUDGE
the court is the Washoe County School District's
(“defendant” or “the District”)
motion to dismiss plaintiff's first, third, fourth, fifth
and sixth causes of action. ECF No. 7. Jenny A. Hunt, fka
Jenny A. Ricci, plaintiff, responded (ECF No. 11), to which
defendant replied (ECF No. 19). In light of defendant's
motion, Hunt filed a motion for leave to file an amended
complaint. ECF No. 14. Accordingly, defendant opposed the
motion (ECF No. 18), to which plaintiff replied (ECF No. 23).
After close of briefing, defendant motioned the court for
leave to file supplemental authority. ECF No. 29. Plaintiff
opposed this motion (ECF No. 30), and the District replied
(ECF No. 31). The court now rules on all pending motions.
2015, the State of Nevada Department of Education
(“NDE”) expressed concerns to the District
regarding the services the District provided students with
disabilities and the District's compliance with the
Individuals with Disabilities Act (“IDEA”). ECF
No. 1 ¶ 22. The NDE was concerned that the
District's violations of IDEA were “indicative of a
fundamental systematic noncompliance with IDEA and Nevada
law.” Id. Following an investigation, the
District took steps to reform its special education
practices, including implementing leadership changes.
Id. ¶ 23.
of one of these leadership changes, Hunt was hired by the
District in 2015 as the “Student Support Services
Performance & Instruction Executive Director” for
the Office of Student Services (“OSS”).
Id. ¶¶ 1; 23-24. Hunt, and David Frydman,
her male colleague, were placed under the direction of OSS
Chief, Dr. Byron Green and were tasked with implementing
changes and systems to ensure that the District was operating
in compliance with IDEA. Id. ¶ 24. Hunt alleges
that OSS encountered “resistance and push-back”
from schools and school administrators in response to
guidance she provided “to make the District IDEA
compliant.” Id. ¶¶ 24-25. Hunt
alleges that the District's Chief School Performance
Officer, Paul LaMarca, “actively solicit[ed] complaints
against OSS and Plaintiff from District principals.”
Id. ¶ 24. Hunt states that “individuals
and the Washoe School Principals Association
(“WSPA”)” filed complaints against her
“specific to the guidance Plaintiff provided to schools
to comply with IDEA and District guidelines.”
Id. ¶ 25.
states: “[u]pon receipt of each complaint, [she]
requested feedback from Dr. Green, and she also requested his
review of her ongoing emails to principals in an effort to
prevent or mitigate future complaints.” Id.
¶ 26. Hunt alleges that, “Dr. Green's feedback
was that her behavior was professional, that her decisions
were supported by the data and that a change was not
needed.” Id. Hunt claims that at no point in
the wake of the complaints was she directed by Dr. Green,
Kristen McNeill (“McNeill”) the deputy
superintendent, or Traci Davis (“Davis”) the
superintendent, to alter the approach she was using or the
guidance she was providing. Id. ¶ 27.
alleges that in the spring of 2016, the WSPA wrote a letter
“lashing out at OSS” as a result of articles
published in the Reno Gazette Journal critical of the
District's treatment and the graduation rates of special
education students. Id. ¶ 28. In response, Hunt
asserts that she “began sharing” with Dr. Green
“concerns” she had regarding “untruthful
allegations” levied against OSS, and the
“bullying behavior” of LaMarca. Id.
¶ 29. Hunt claims that it was “of great
concern” to her that LaMarca supposedly treated Frydman
differently than her. Id. Specifically, Hunt claims
that Frydman was not targeted by “solicited, spurious
complaints” and that LaMarca refused to work directly
with her. Id. Hunt asserts that additional examples
of unequal treatment were provided in a formal complaint that
she filed regarding LaMarca's behavior on May 19, 2017.
alleges that at the start of the 2016-2017 school year,
principals, area superintendents, and LaMarca,
“continued to resist” guidance and direction from
OSS. Id. ¶ 30. Hunt claims that Davis and
McNeill reassured her that the District's expectations
for special education included “holding staff
accountable, ensuring IDEA compliance, and professional
communication and behavior with colleagues.”
Id. Hunt alleges that her efforts to meet this
expectation and facilitate change were “repeatedly
resisted.” Id. ¶ 31. Hunt claims that as
a result of efforts to provide guidance for special education
reform, she was subsequently subjected to a multitude of
false allegations, complaints, and allegations that she was
unprofessional. Id. ¶¶ 32-35. Hunt further
alleges that she requested meetings to collaborate and
mediate with principals in order to prevent and mitigate
future complaints, but that she did not receive a response
from LaMarca or McNeil. Id. ¶ 33.
March 30, 2017, Hunt and Dr. Green were placed on
administrative leave pending an investigation of allegations
that they engaged in misconduct. Id. ¶ 36. On
April 3, 2017, she “[s]hared her concern with McNeill
that this was continued harassment and bullying by WSPA and
LaMarca, ” and was informed that her concern would be
added to the Solutions at Work (“SAW”)
investigation, an outside investigation firm retained by the
District. Id. ¶ 37. Hunt states that during her
April 25, 2017 and May 2, 2017 investigative meetings with
SAW she was not asked about these allegations and that SAW
provided “glib and cursory” responses to
Hunt's concerns. Id. ¶¶ 37, 41. Hunt
asserts that she was only asked “vague questions”
that “had no rational relationship” to the
allegations of bullying, harassment, and misconduct that were
made against her. Id. ¶ 41. Hunt further claims
that Dr. Green was treated differently during his
investigative meetings: he was allowed “access to his
email, calendar and other materials to use as a reference in
responding to questions.” Id. ¶ 42.
11, 2017, Hunt's attorney sent a letter to the
District's legal office requesting a copy of her
employment records and suggesting a meeting or mediation
among Hunt and any complainants, though nothing came of this
inquiry. Id. ¶ 43. Then, on June 27, 2017, Hunt
was interviewed by an investigator with Grate Investigations,
another outside investigation firm retained by the District,
regarding a May 17 complaint she made against LaMarca.
Id. ¶ 46. Hunt asserts that the
investigator's questions were “vague” and
difficult to answer because she was again not given access to
her email, calendar, and daily journals to use for reference.
Id. ¶¶ 46. Hunt further claims that though
she'd been assured that this interview would not rehash
issues investigated by SAW, she was asked questions that
pertained to the previous investigation and that “had
no relevance” to the complaint plaintiff had levied
against LaMarca. Id. ¶ 47.
remained on leave for another 23 weeks before she was
dismissed on October 23, 2017. Id. ¶ 44. On
October 22, 2018, Hunt filed a complaint against the District
asserting seven causes of action. ECF No. 1. The District
filed a motion to dismiss Hunt's first, third, fourth,
fifth, and sixth causes of action (ECF No. 7), arguing that
each fails to state a claim upon which relief can be granted.
Hunt filed a response, (ECF No. 11) and the District replied,
(ECF No. 19). On January 22, 2019, Hunt then filed a motion
for leave to file an amended complaint, (ECF No. 14), which
the District opposed, (ECF No. 18), and Hunt replied, (ECF
No. 23). Finally, on May 14, 2019, the District filed a
motion for leave to file supplemental authority. ECF No. 29.
Hunt opposed the motion, (ECF No. 30), and the District
replied, (ECF No. 31). The court now rules on all pending
to Dismiss Pursuant to Federal Civil Procedure Rule
may seek the dismissal of a complaint under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a legally
cognizable cause of action. See Fed. R. Civ. P.
12(b)(6) (stating that a party may file a motion to dismiss
for “failure to state a claim upon which relief can be
granted[.]”). To survive a motion to dismiss for
failure to state a claim, a complaint must satisfy the notice
pleading standard of Federal Rule 8(a)(2). See Mendiondo
v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1103 (9th
Cir. 2008). Under Rule 8(a)(2), a complaint must contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Rule 8(a)(2) does not require detailed factual
allegations; however, a pleading that offers only
“‘labels and conclusions' or ‘a
formulaic recitation of the elements of a cause of
action'” is insufficient and fails to meet this
broad pleading standard. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
sufficiently allege a claim under Rule 8(a)(2), viewed within
the context of a Rule 12(b)(6) motion to dismiss, a complaint
must “contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Id. (quoting Twombly,
550 U.S. at 570). A claim has facial plausibility when the
pleaded factual content allows the court to draw the
reasonable inference, based on the court's judicial
experience and common sense, that the defendant is liable for
the alleged misconduct. See Id. at 678-679 (stating
that “[t]he plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer
possibility that a defendant has acted unlawfully. Where a
complaint pleads facts that are merely consistent with a
defendant's liability, it stops short of the line between
possibility and plausibility of entitlement to relief.”
(internal quotation marks and citations omitted)). Further,
in reviewing a motion to dismiss, the court accepts the
factual allegations in the complaint as true. Id.
However, bare assertions in a complaint amounting “to
nothing more than a formulaic recitation of the elements of a
. . . claim . . . are not entitled to an assumption of
truth.” Moss v. U.S. Secret Serv., 572 F.3d
962, 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at
698) (internal quotation marks omitted). The court discounts
these allegations because “they do nothing more than
state a legal conclusion- even if that conclusion is cast in
the form of a factual allegation.” Id.
“In sum, for a complaint to survive a motion to
dismiss, the non-conclusory ‘factual content,' and
reasonable inferences from that content, must be plausibly
suggestive of a claim entitling the plaintiff to
relief.” Id. (internal quotation marks
Because NRS § 388.1215 may control the outcome of
aspects of this litigation, the court finds good cause to
grant the District's motion for leave to file
briefing closed on defendant's motion to dismiss, the
District filed a motion for leave to file supplemental
authority (ECF No. 29), arguing that newly found authority
controls Hunt's due process claim. The District seeks to
bring NRS § 388.1215 to the court's attention, which
provides a definition of “administrator.” The
District argues this statute establishes that Hunt does not
qualify for certain protections under NRS Chapter 391, and
therefore, her due process claim fails as a matter of law.
Plaintiff opposed this motion (ECF No. 30), and the District
replied (ECF No. 31).
district court has discretion to grant a request to
supplement authorities on a showing of good cause.
See LR 7-2(g). Good cause exists when the
supplemental authorities “control the outcome” of
the litigation. JP Morgan Chase Bank, N.A. v. Resources
Grp., LLC, No. 2:17-CV-225 JCM (NJK), 2018 WL 894612, at
*5 (D. Nev. Feb. 13, 2018). Good cause also exists when the
supplemental authority is precedential or is an authority
that is particularly persuasive or helpful. See, e.g.,
Puczko v. Law Office of Sipe & Landon, No. CV
09-256-TUC-JMR, 2010 WL 11519290, at *3 (D. Ariz. Mar. 16,
2010). Hunt cites no case law in her opposition that supports
denying the District's motion. Hunt argues that the
statute should be disregarded because the District failed to
cite it in its initial briefing. The court disagrees-the
court must comply with the law regardless of whether the
parties cited to such law in the briefing. See,
e.g., EEOC v. Kovacevich “5” Farms, No.
1:06 CV 0165 OWW TAG, 2006 WL 3060149, at *2 (E.D. Cal. Oct.
27, 2006) (“Because any decision on a motion should
comply with the law, appropriate legal authority should not
be disregarded merely because it was not cited in an initial
court finds, as discussed below, that the proffered
supplemental authority, NRS § 388.1215, is sufficiently
controlling and instructional to create “good
cause” to grant defendant leave to supplement its
motion to dismiss. Accordingly, defendant's motion (ECF
No. 29) is granted and NRS § 388.1215 will be considered
in deciding the District's motion to dismiss.
The court finds that Hunt's first cause of action for
violation of her due process rights fails as a matter of law
and is therefore dismissed.
Process Clause provides that a state may not deprive a person
of life, liberty, or property without due process of law.
U.S. Const. amend, XIV, § 1. 48 U.S.C. § 1983
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injury in an action at
governmental entities are ‘persons' for the
purposes of §1983 and can be sued directly under §
1983 for monetary, declaratory, or injunctive relief where
‘the action that is alleged to be unconstitutional
implements or executes a policy statement, ordinance,
regulation, or decision officially adopted and promulgated by
that body's officers.'” Anderson v.
Warner, 451 F.3d 1063, 1070 (9th Cir. 2006) (quoting
Monell v. Dep't of Soc. Servs., 436 U.S. 658,
690 (1978)). In order to bring a successful § 1983
claim, the plaintiff must show "(1) that [she] possessed
a constitutional right of which [she] was deprived; (2) that
the [governmental actor] had a policy; (3) that the policy
amounts to deliberate indifference to [the plaintiff's]
constitutional right; and (4) that the policy is the moving
force behind the constitutional violation." Id.
(internal quotations and citations omitted). Here, plaintiff