Grossenbach v. Arizona Board of Regents et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Daniel Grossenbach,
Plaintiff,
vs.
Arizona Board of Regents; et al.,
Defendants.
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CV 25-00477-TUC-JGZ (MAA)
REPORT AND RECOMMENDATION
Pending before the court is a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6),
filed on October 17, 2025, by the defendants Arizona Board of Regents (“ABOR”); Douglas
Goodyear, named in his official capacity as ABOR’s Chair; and Suresh Garmella, named in
his official capacity as the University of Arizona’s President (“the defendants”). Doc. 16.
The plaintiff filed a response on October 30, 2025. Doc. 17. The defendants filed a reply on
November 6, 2025. Doc. 18.
The motion was referred to the Magistrate Judge for a report and recommendation.
Doc. 8.
The plaintiff in this action, Daniel Grossenbach, founded an organization named
SaveCFSD, through which he advocates “for truth, trust, and transparency within Catalina
Foothills School District 16 [‘CFSD’].” Complaint, Doc. 1, ¶ 67. He founded this
organization because he believes the CFSD is acting contrary to his “sincerely held religious
beliefs” by “secretly surveying children about their gender and sexuality, pushing radical
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gender ideologies upon those students, and unconscionably and intentionally keeping that
information from parents.” Doc. 1, ¶¶ 2, 5.
Grossenbach was employed as an adjunct professor at the University of Arizona.
Complaint, Doc. 1, ¶ 53. On November 30, 2023, he was informed that his teaching contract
would not be renewed. Doc. 1, ¶ 143. Grossenbach believes that his employment was
discontinued because the University received complaints about his advocacy with
SaveCFSD.
Grossenbach filed a Complaint in this court on August 22, 2025. Doc. 1. He claims
the defendants’ actions violate (I) Title VII of the Civil Rights Act of 1964, (II) the free
speech clause of the First Amendment, (III) the free exercise clause of the First Amendment,
(IV) the free speech clause of the First Amendment by retaliation, (V) the equal protection
clause of the Fourteenth Amendment, and (VI) the Arizona public records law. Doc. 1, pp.
50, 52, 55, 57, 60, 63.
On October 17, 2025, the defendants filed the pending motion to dismiss for failure
to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Doc. 16. The motion should be granted
as it relates to Grossenbach’s claim under the Arizona public records law. The motion
should be otherwise denied. His Title VII administrative charge was timely filed under the
doctrines of estoppel and equitable tolling as alleged in the Complaint. The Eleventh
Amendment does not bar his Constitutional claims against the State pursuant to Ex parte
Young, 209 U.S. 123, 28 S.Ct. 441 (1908).
Discussion
“A Rule 12(b)(6) motion tests the legal sufficiency of the claim.” Cook v. Brewer,
637 F.3d 1002, 1004 (9 Cir. 2011). The claim must allege a legally cognizable theory ofth
relief and include factual allegations sufficient to support that theory. Hinds Investments,
L.P. v. Angioli, 654 F.3d 846, 850 (9 Cir. 2011).th
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Where the defendant uses Rule 12(b)(6) to raise a statute of limitations defense, the
court may dismiss the claim only if “the running of the statute is apparent on the face of the
complaint.” Huynh v. Chase Manhattan Bank, 465 F.3d 992, 997 (9th Cir. 2006).
When analyzing the motion, “all factual allegations in [the plaintiff’s] complaint are
taken as true and all reasonable inferences are drawn in his favor.” Pride v. Correa, 719 F.3d
1130, 1133 (9th Cir. 2013).
Count I: Title VII
The defendants argue first that the Title VII claim must be dismissed because
Grossenbach did not timely exhaust his administrative remedies. They explain that in
Arizona a prospective plaintiff must file a charge of discrimination with the EEOC within
300 days of the alleged discriminatory employment action. Doc. 16, pp. 3-4 (citing, inter
alia, Cox v. Glob. Tool Supply LLC, 629 F. Supp. 3d 963, 971, n. 2 (D. Ariz. 2022) (“In
deferral states [like Arizona], the deadline for a complainant to file [his] Title VII claim with
the EEOC is extended from the ordinary 180 days to 300 days after the challenged practice,
provided the complainant first initiates proceedings with the [state] agency.”)); see also
Delaware State Coll. v. Ricks, 449 U.S. 250, 256, 101 S. Ct. 498, 503 (1980) (The charge
accrues when the “alleged unlawful employment practice occurred” pursuant to 42 U.S.C.A.
§ 2000e-5(e)(1).).
In this case, Grossenbach was informed on November 30, 2023, that his employment
contract would not be renewed. Doc. 16. According to the defendants, his 300 days started
on that date and expired on September 25, 2024. Doc. 16, p. 4. They assert that he filed his
ACRD (Arizona Civil Rights Division) charge on January 9, 2025, and his EEOC (Equal
Employment Opportunity Commission) charge on January 22, 2025. Doc. 16, p. 4.
Accordingly, the defendants argue that the claim must be dismissed for failure to properly
exhaust administrative remedies. The court does not agree. Assuming without deciding that
Grossenbach’s Title VII charge accrued on November 30, 2023, when he was told his
contract would not be renewed, the start of the limitation period was postponed under the
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doctrines of estoppel and equitable tolling. Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
393, 102 S. Ct. 1127, 1132 (1982) (“[F]iling a timely charge of discrimination with the
EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like
a statute of limitations, is subject to waiver, estoppel, and equitable tolling.”).
“Equitable tolling focuses on whether there was excusable delay by the plaintiff: If
a reasonable plaintiff would not have known of the existence of a possible claim within the
limitations period, then equitable tolling will serve to extend the statute of limitations for
filing suit until the plaintiff can gather what information he needs.” Lukovsky v. City & Cnty.
of San Francisco, 535 F.3d 1044, 1051 (9th Cir. 2008) (punctuation modified). “Equitable
estoppel, on the other hand, focuses primarily on actions taken by the defendant to prevent
a plaintiff from filing suit, sometimes referred to as ‘fraudulent concealment.’” Id.
In his Complaint, Grossenbach describes when and how he was informed that his
teaching contract would not be renewed:
In November of 2023, Grossenbach was approached by a publisher that wanted him
to author a college textbook about ethics, his area of expertise. Doc. 1, ¶ 138. Grossenbach
contacted Angela L. Hackett, the Assistant Director of the School of Government & Public
Policy, hoping to set up a meeting to discuss the project. Doc. 1, ¶ 139. A meeting was set
up at the behest of Dr. Edella Schlager, the Director of the School of Government & Public
Policy, but Schlager did not intend to discuss the textbook project. Doc. 1, ¶¶ 86, 140, 141.
At the meeting, held on November 30, 2023, Schlager informed Grossenbach that his
teaching contract would not be renewed. Doc. 1, ¶ 143. Grossenbach was told that “the
University had decided to hire a full-time faculty member to teach [his] ethics course instead
of an adjunct professor.” Doc. 1, ¶ 144. Grossenbach initially believed the proffered
explanation, but he later became skeptical. Doc. 1, ¶¶ 145-146. Consequently, he “submitted
a public records request for documents and emails associated with the University’s decision
to not renew [his] teaching contract.” Doc. 1, ¶ 150.
Grossenbach later saw that “the University had posted an advertisement soliciting
resumes for two adjunct professor positions at the School of Government & Public Policy
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The Arizona Civil Rights Division asks prospective claimants to specify the “categories”1
that apply to their employment complaint: “Race, Color, National Origin, Religion or Creed,
S e x / G e n d e r , A g e , D i s a b i l i t y , G e n e t i c I n f o r m a t i o n , o r R e t a l i a t i o n . ”
https://www.azag.gov/complaints/civil-rights.
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to teach ethics, which [he] was well qualified to teach and had been teaching prior to his
unlawful termination.” Doc. 1, ¶ 156 (emphasis added). It appeared that the University was
not hiring a full-time faculty member to teach these courses as he had been told. Doc. 1, ¶
157.
Over the next seven months, Grossenbach sent a number of messages to the
University seeking a substantive response to his public records request. Doc. 1, ¶¶ 151-173.
Eventually he retained legal counsel, who sent the University a demand letter requesting the
records. Doc. 1, ¶ 175; Doc. 1-16, p. 1. Grossenbach finally received the records on July
26, 2024, after what he calls “a 239-day campaign of delay and deception.” Doc .1, ¶¶ 150,
151, 176. The records contain no negative performance reviews, but they do contain three
anonymous complaints. Doc. 1, ¶ 181. Those complaints accused Grossenbach of “creat[ing]
a hostile environment for transgender and LGBTQ students” in connection with his
SaveCFSD activities, among other things. Doc. 1, ¶¶ 80, 122, 131. Grossenbach asserts that
“[t]he furnished public records revealed emails which contain evidence of Defendants’
religious discrimination, retaliation, and [his] unlawful termination from the University.”
Doc. 1, ¶ 180.
Taking the allegations in the plaintiff’s Complaint as true and drawing all reasonable
inferences in his favor, the court concludes that a reasonably prudent person would not have
known of the existence of his claims until July 26, 2024, when he received the documents
pursuant to his public records request. See Pride v. Correa, 719 F.3d 1130, 1133 (9th Cir.
2013). Prior to that date, Grossenbach would have known what happened but not why it
happened. And without knowing why it happened, he would not have known that an
“unlawful employment practice [had] occurred” and could not have raised a meaningful1
administrative charge. See 42 U.S.C.A. § 2000e-5(e)(1); see also
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Boyd v. U.S. Postal Serv., 752 F.2d 410, 414 (9th Cir. 1985) (“The time period for filing a
complaint of discrimination begins to run when the facts that would support a charge of
discrimination would have been apparent to a similarly situated person with a reasonably
prudent regard for his rights.”). The limitation period was tolled until Grossenbach received
his employment documents. See, e.g., Sterrett v. Mabus, 2013 WL 593752, at *5 (S.D. Cal.
Feb. 15, 2013) (“Because the [First Amended Complaint’s] factual allegations suggest that
Sterrett did not realize the employment decision was the result of gender discrimination until
her discovery of the similarly situated male in July 2009, the Court finds tolling is
sufficiently pled.”).
Furthermore, Grossenbach presents allegations from which one may conclude that the
defendants took actions to prevent Grossenbach from discovering his claims by slow-walking
his public records request and by falsely telling him that his contract would not be renewed
because the University was going to hire a full-time faculty member to teach those classes.
Taking the allegations in the Complaint as true and drawing all reasonable inferences in his
favor, the court finds that the defendants knew the true circumstances surrounding the
adverse employment action and falsely represented them to Grossenbach intending that he
rely on those false representations. The court further finds that Grossenbach was ignorant
of the true facts and reasonably relied on the defendants’ representations to his detriment.
See Lukovsky v. City & Cnty. of San Francisco, 535 F.3d 1044, 1051-1052 (9th Cir. 2008)
(listing the equitable estoppel factors required under California law and “not inconsistent
with federal common law.”).
The start of the filing period was delayed until July 26, 2024, under the doctrines of
estoppel and equitable tolling. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393,
102 S. Ct. 1127, 1132 (1982). The defendants assert that Grossenbach’s EEOC charge was
filed on January 22, 2025, which was180 days later. Doc. 16, p. 4; Doc. 1, ¶¶ 192-3. The
EEOC charge was filed within the 300-day limitation period. “[T]he running of the statute
is [not] apparent on the face of the complaint.” See Huynh v. Chase Manhattan Bank, 465
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F.3d 992, 997 (9th Cir. 2006). Accordingly, the defendants’ motion to dismiss on this issue
should be denied.
The defendants assert that the EEOC itself dismissed Grossenbach’s charge because
it was filed too late. Doc. 16, p. 5. The dismissal notice states as follows: “The EEOC is
closing this charge because your charge was not filed within the time limits under the law;
in other words, you waited too long after the date of the alleged discrimination to file your
charge.” Id. The defendants present no argument addressing how much deference this court
should show the decision of the EEOC. They simply state that “this Court may consider
attachments to the Complaint and draw all reasonable inferences in the plaintiff’s favor.” Id.
The court concludes that it need not give the EEOC’s dismissal notice any special
deference. It does not appear from the notice that the EEOC considered the doctrines of
estoppel and equitable tolling. And even if it did, the defendants present no argument that
the EEOC has special expertise in this area of the law. See Lee v. Sullivan, 787 F. Supp. 921,
937 (N.D. Cal. 1992) (“Thoughtful deference to agency determinations is appropriate only
as to those matters as to which the agency has a particular expertise.”); see also Loper Bright
Enters. v. Raimondo, 603 U.S. 369, 413, 144 S. Ct. 2244, 2273 (2024) (“[C]ourts need not
. . . defer to an agency interpretation of the law simply because a statute is ambiguous.”).
In their reply brief, the defendants argue that even if Grossenbach could not discover
his claim until July 26, 2024, he still could have filed his charge of discrimination before the
300-day deadline on September 25, 2024, and his failure to do so is fatal to his Title VII
claim. Doc. 18, p. 3. They assert that the plaintiff “fails to point to any extraordinary
circumstance that prevented him from filing a timely charge.” Id.
The defendants cite no case law in support of their theory of equitable tolling. And,
the court finds it does not accord with the rationale behind the doctrine, which is employed
to “relieve hardships which, from time to time, arise from a hard and fast adherence to more
absolute legal rules, which, if strictly applied, threaten the evils of archaic rigidity.” Kwai
Fun Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013) (punctuation modified), aff’d and
remanded sub nom. United States v. Wong, 575 U.S. 402, 135 S. Ct. 1625 (2015); see also
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Jones v. Blanas, 393 F.3d 918, 928 (9th Cir. 2004) (“California courts apply equitable tolling
to prevent the unjust technical forfeiture of causes of action, where the defendant would
suffer no prejudice.”) (punctuation modified); see also Smith v. Davis, 953 F.3d 582, 601 (9th
Cir. 2020) (en banc) (Habeas petitioner would be entitled to the full one-year limitation
period but only if he acted diligently after tolling ended.).
The defendants further argue that Grossenbach “fails to state a Title VII claim against
[the Arizona Board of Regent’s] Chair, Douglas Goodyear, and the University’s President,
Suresh Garmella” because Title VII only allows an action against the employer and “does not
provide for the individual liability of an employer’s officers and employees.” Doc. 16, pp.
5-6.
The Complaint, however, does not name Goodyear or Garmella as defendants in their
individual capacity. Doc. 1, p. 1. They are named in their official capacity. Doc. 17, p. 12.
“Official-capacity suits . . . represent only another way of pleading an action against an entity
of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165–66, 105 S. Ct.
3099, 3105 (1985). “As long as the government entity receives notice and an opportunity
to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit
against the entity,” which here is the employer. Id.; see Ortez v. Washington Cnty., State of
Or., 88 F.3d 804, 808 (9th Cir. 1996) (Claims against county employees in their individual
capacities would be dismissed, but the plaintiff did state a Title VII claim against the
employees in their official capacities and against Washington County, his employer.).
In their reply brief, the defendants argue that “Congress did not intend to impose
individual liability on employees” in the Title VII statutory scheme Doc. 18, p. 4. The court
agrees. But a suit against a person in his official capacity does not impose “individual
liability” on that person and does not violate Congress’s intent.
The defendants direct the court’s attention to the case Taylor v. ScottPolar Corp., 995
F. Supp. 1072, 1079 (D. Ariz. 1998), where the court granted summary judgment to
individual defendants sued in their official capacity because those claims were “unnecessarily
repetitive” of the plaintiff’s claims against the employer. Doc. 18, p. 5. This court agrees
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that Title VII claims brought against individuals sued in their official capacity are repetitive
of the plaintiff’s claims brought against the employer, at least in some respects. And one
might consider the plaintiff’s Title VII claims against the individual defendants in their
official capacity to be unnecessarily repetitive. But even if they were, the defendants provide
no authority tending to show that being “unnecessarily repetitive” is a legitimate reason for
dismissing a claim under Fed.R.Civ.P. 12(b)(6).
Counts II, III, IV, and V: Constitutional Claims
The defendants further argue that Grossenbach’s Constitutional claims must be
dismissed because actions against the State of Arizona are barred by the Eleventh
Amendment. Doc. 16, p. 6. The Complaint does not name the State of Arizona as a
defendant, but it names the Arizona Board of Regents (“ABOR”), which the defendants
explain is an arm of the State for Eleventh Amendment purposes. Doc. 16, p. 6 (citing
Arizona Students’ Ass’n v. Arizona Bd. of Regents, 824 F.3d 858, 864 (9th Cir. 2016)).
“The Eleventh Amendment bars suits against the State or its agencies for all types of
relief, absent unequivocal consent by the state.” Jensen v. Brown, 131 F.4th 677, 696 (9th
Cir. 2025). “Ordinarily, this protection extends to state instrumentalities and agencies, as
well as state officials sued in their official capacity.” Id. (punctuation modified). “But over
a century ago, Ex parte Young held that Eleventh Amendment-linked sovereign immunity
is not a barrier to suits against state officers where the relief sought is prospective in nature
and is based on an ongoing violation of the plaintiff’s federal constitutional or statutory
rights.” Id. (citing Ex parte Young, 209 U.S. 123, 28 S.Ct. 441 (1908)). “Under this
principle, a plaintiff may seek prospective injunctive relief that governs the official’s future
conduct, but not retroactive relief that requires the payment of funds from the state treasury.”
Id.
In this case, Grossenbach seeks, among other things, a declaratory judgment that the
defendants discriminated against him and reinstatement to his prior position. Doc. 1, pp. 65-
67. A declaratory judgment that the defendants’ actions violated the plaintiff’s Constitutional
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rights is “prospective relief” that is not barred by the Eleventh Amendment. Jensen v.
Brown, 131 F.4th 677, 696 (9th Cir. 2025). Moreover, “reinstatement is a legitimate request
for prospective injunctive relief” for the purposes of Ex parte Young. Doe v. Lawrence
Livermore Nat. Lab., 131 F.3d 836, 842 (9th Cir. 1997). The Eleventh Amendment does not
bar Grossenbach’s Constitutional claims.
The defendants further argue that the “Complaint fails to demonstrate a reasonable
likelihood of future injury.” Doc. 18, p. 9. And therefore he “lack[s] standing to seek
prospective injunctive relief.” Id. (citing Bank of Lake Tahoe, 318 F.3d 914, 918 (9th Cir.
2003) (“An award of prospective injunctive relief requires the plaintiff to demonstrate a
reasonable likelihood of future injury.”). The court concludes that even if Grossenbach
failed to allege a “reasonable likelihood of future injury,” as that phrase was used in Bank
of Lake Tahoe, his claims still survive the defendants’ motion to dismiss.
Grossenbach requests, among other things, a declaratory judgment and reinstatement.
Those are remedies that the court can provide pursuant to Ex parte Young. He therefore has
standing to assert his Constitutional claims. Put another way, Grossenbach claims a right to
certain types of “prospective injunctive relief” that do not require him to allege a “reasonable
likelihood of future injury” as that phrase was used in Bank of Lake Tahoe. See also Doc.
1, ¶¶ 25, 133, 195-212, 234, 252, 277, 294 (alleging that the controversy has not abated and
Grossenback still suffers harm due to the defendants’ actions and policies).
Count VI: The Arizona Public Records Statute, A.R.S. § 39-121.02
Finally, the defendants argue that Count VI, Grossenbach’s claim that the defendants
violated the Arizona public records statute, A.R.S. § 39-121.02, should be dismissed because
he failed to comply with the notice-of-claim statute, A.R.S. § 12-821.01, and because the
Eleventh Amendment bars claims asserted under state law against the State. Doc. 16, pp. 9-
11.
In his response brief, “Grossenbach voluntarily withdraws and dismisses his claims
under Count VI.” Doc. 17, p. 19.
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RECOMMENDATION
The Magistrate Judge recommends that the District Court, after its independent review
of the record, enter an order
GRANTING IN PART the motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), filed
by the defendants on October 17, 2025. Doc. 16. Count VI, alleging a violation of the
Arizona public records statute, A.R.S. § 39-121.02, should be dismissed. The remainder of
the motion should be denied. The Complaint alleges that Grossenbach’s Title VII
administrative claim was timely filed under the doctrines of estoppel and equitable tolling.
The Eleventh Amendment does not bar his Constitutional claims against the State pursuant
to Ex parte Young, 209 U.S. 123, 28 S.Ct. 441 (1908).
Pursuant to 28 U.S.C. §636 (b), any party may serve and file written objections within
14 days of being served with a copy of this report and recommendation. If objections are
not timely filed, the party’s right to de novo review may be waived. The Local Rules permit
the filing of a response to an objection. They do not permit the filing of a reply to a response
without the permission of the District Court.
DATED this 21 day of November, 2025.st
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