United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL J. McSHANE, District Judge.
Defendants move to dismiss claims three through thirteen for failure to state a claim upon which relief can be granted. Fed. R. Civ. Pro. 12(b)(6). Defendants' motion is GRANTED in part, and DENIED in part.
Between February 2005 through late 2010, plaintiff intermittently took time off to treat a chronic medical condition. In October 2011, plaintiff became involved in the unionization process of SEIU Local 503. Aware of plaintiff's activities in the organization, defendants strongly opposed her involvement and became more hostile toward plaintiff. This hostility included the defendants' treatment of plaintiff's leave requests related to her medical condition. In December 2011, plaintiff again required time off work for further testing of her condition. In March 2012, plaintiff provided defendants with a medical note stating that she would be released to full time work after a "ramp-up" period. Although full time, she would need medical treatment, estimated to occur 3-4 times a month for acute flare ups. Defendants denied plaintiff's return to work due to insufficient information regarding the precise limitations and the lack of a specific return date as a full time employee. Defendants informed plaintiff that her work restrictions would not be accommodated because the 3-4 days off work each month as stated in the medical release would result in an indefinite 32 hour work week and permit plaintiff to work from home one day per week. For the next two months, the plaintiff provided further documentation with detailed limitations and accommodations for her return to work. This changed the plaintiff's return to work plan for the period of June 13 to July 9, 2012. In July 2012, the plaintiff returned to full time work. In early October, 2012, defendants informed plaintiff that she would be laid off according to the collective bargaining agreement as of October 19, 2012. Defendants have not reinstated plaintiff's employment.
To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain sufficient factual matter that "state[s] a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when the factual allegations allow the court to infer the defendant's liability based on the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The factual allegations must present more than "the mere possibility of misconduct." Id. at 678. While considering a motion to dismiss, the court must accept all allegations of material fact as true and construe them in the light most favorable to the nonmovant. Burget v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000).
I. Plaintiff's state law claims are dismissed without prejudice
The Eleventh Amendment provides the states with "sovereign immunity" allowing a state immunity from suit, whether by its own citizens or those of another state, without its consent. U.S. Const. amend. XI; Va. Office for Prot. & Advocacy v. Stewart, 131 S.Ct. 1632, 1637 (2011). Absent a waiver, or congressional abrogation, the courts cannot entertain an individual's suit against a state. Id. at 1638. The State must choose to assert this defense and, without such assertion, a court can ignore it. Wis. Dep't of Corr. v. Schacht, 524 U.S. 381, 389 (1998).
The state raises this defense and the parties agree the Eleventh Amendment bars plaintiff's state claims. Plaintiff asks this court to exercise supplemental jurisdiction over the state law claims for purposes of judicial economy. But plaintiff cites no caselaw, and I am aware of none, in support of the proposition that a district court can exercise supplemental jurisdiction over claims barred by the Eleventh Amendment. The court lacks jurisdiction over plaintiff's state law claims and those claims are dismissed without prejudice. See Freeman v. Oakland Unified Sch. Dist., 179 F.3d 846, 847 (9th Cir. 1999).
II. Plaintiff's substantive due process claims fail as a matter of law
Plaintiff's third claim for relief is based upon the theory that plaintiff had a protected property interest in her public employment. The Ninth Circuit, in Engquist v. Or. Dep't of Agric., recognized a two tiered approach to substantive due process public employment claims. 478 F.3d 985, 996-97 (9th Cir. 2007). A threshold requirement is the showing of a property interest protected by the Constitution. Id. at 996. Plaintiff's claims fail to make this showing.
The liberty guaranteed by the Fourteenth Amendment "denotes not merely freedom from bodily restraint but also the right... to engage in any of the common occupations of life[.]" Meyer v. Nebraska, 262 U.S. 390, 399 (1923). While there is a generalized right to choose one's field of employment, the right is still subject to reasonable government regulation and has never been considered fundamental. Conn. v. Gabbert, 526 U.S. 286, 291-292 (1999); Sagnana v. Tenorio, 384 F.3d 731, 743 (9th Cir. 2004). A claim challenging the infringement of nonfundamental rights is "cognizable only if there is a recognized liberty or property interest at stake." Sagnana, 384 F.3d at 742-43.
The right to a particular public employment position is somewhat of an open question in the Ninth Circuit. Engquist, 478 F.3d at 997. As recognized by the Ninth Circuit, however, each court examining the availability of a substantive due process claim in the public employment context recognize not a right to any particular job or position, but only to "a liberty interest in pursuing an occupation of one's choice." Id. In the Ninth Circuit, substantive due process claims in the public employment context are limited to "extreme cases, such as a government blacklist, which when circulated or otherwise publicized to prospective employers effectively excludes the blacklisted individual from his occupation, much as if the government had yanked the license of an individual in an occupation that requires licensure." Id. at 997-97 (internal quotation omitted). In other words, the Ninth Circuit tracks the conclusions of ...