Block v. San Francisco Unified School District et al

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United States District Court
Northern District of
 California
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
KENNETH BLOCK,
Plaintiff,
v.
SAN FRANCISCO UNIFIED SCHOOL
DISTRICT, et al.,
Defendants.
Case No. 25-cv-01606-LJC
ORDER REGARDING MOTION TO
DISMISS FIRST AMENDED
COMPLAINT
Re: Dkt. No. 11
I. INTRODUCTION
Plaintiff Kenneth Block, a school security guard, brought this action in state court against
Defendants the San Francisco Unified School District (the District) and its employee Michael
Essien, a school principal, asserting discrimination, harassment, and related claims. Defendants
removed to this Court and move to dismiss and strike portions of Block’s operative First Amended
Complaint. The Court previously found the matter suitable for resolution without oral argument
and took it under submission without a hearing. For the reasons discussed below, Defendants’
Motion is GRANTED in part and DENIED in part.1
If Block wishes to pursue claims dismissed or allegations stricken by this Order, he may
file a second amended complaint no later than January 20, 2026. If Block does not amend, he may
proceed only on his claims against the District for retaliation and for harassment based on race,
color, or ancestry, as well as his claim for failure to prevent such harassment.
A further case management conference shall occur by videoconference on February 26,
2026 at 1:30 PM. The parties shall file an updated joint case management statement no later than
1 The parties have consented to proceed before a magistrate judge for all purposes under 28 U.S.C.
§ 636(c).
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January 19, 2026.
II. BACKGROUND
A. Allegations of the First Amended Complaint
Because a plaintiff’s factual allegations are generally taken as true in considering a motion
to dismiss under Rule 12(b)(6), this Order summarizes Block’s allegations as if true. Nothing in
this Order should be construed as a resolving any question of fact that might be disputed at a later
stage of the case.
Block was hired in 2007 by the principal of Balboa High School to be an assistant track
coach, but the head coach wished to retain his existing staff, and Block instead accepted a position
as security guard. 1st Am. Compl. (FAC)2 ¶ 11. After learning that students had stolen records
from an office on the third floor of the school, Block asked them not to go to that floor during
class time, and told them that he would report them if they did so. Id. ¶¶ 12–13. Soon after that, a
student wrote a letter accusing Block of making inappropriate offers and sexual comments to her,
including “that a Black man’s penis is bigger than other men’s.” Id. ¶ 15. Block denied having
done so. Id. ¶ 16. He was placed on administrative leave during an investigation by his supervisor
Eric Maggi, but Maggi later informed him that there was insufficient evidence for any finding of
wrongdoing. Id. ¶¶ 17–19.
Block accepted an offer to transfer to Malcolm X Elementary School to avoid contact with
the student who accused him of misconduct. Id. ¶ 20. At some point thereafter, a student at
Malcolm X Elementary falsely accused Block of stabbing him in the leg with a pencil. Id. ¶ 22.
The police were called, and it was “determined the injury occurred at home and that [Block] did
not cause the injury.” Id. ¶¶ 23–24 (emphasis omitted). But the student’s mother “arrange[d] for
people in the community to attack [Block] at school,” and Block took the last month of that school
session off work due to stress. Id. ¶¶ 25–26 (emphasis omitted).
Block was then transferred to work as a security guard at the Civic Center school for
students with behavioral problems. Id. ¶ 27. Multiple students there threatened to shoot Block.
2 The First Amended Complaint appears in the docket as an attachment to Defendants’ Notice of
Removal, beginning at page 7 of ECF No. 1.
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Id. One of them was arrested. Id.
After that, Block was assigned to Willie Brown Middle School. Id. ¶ 29. A mob of
parents showed up at the school, upset over a decision by the principal and intending “to
physically beat her up.” Id. ¶¶ 31–32. Block reported the situation to the principal and a regional
supervisor. Id. ¶ 33. One of the other security guards, identified in the First Amended Complaint
only as “Pam,” told the mob that Block had reported their presence to the principal. Id. ¶ 34.
When the principal asked why the other security guards who were present had not reported it,
Block said that “they too wanted the principal to be beaten up.” Id. ¶ 35. Block called the police,
who “escorted [Block] to his card to protect him from the mob.” Id. ¶ 36.
When the principal later asked Block to work at a high school graduation, his colleague
Pam cursed at him and complained that she should have been given the assignment, and Block
declined it. Id. ¶ 37.
Block transferred to Washington High School, where other participants at a “meeting about
overtime for security guards” verbally abused him. Id. ¶¶ 38–40. The principal failed to stop the
abuse, and Block “exit[ed] the hostile environment.” Id. ¶ 40.
Block was then “transferred to the Bayview Zone,” which had no students. Id. ¶ 41. A
coworker, Jose Hernandez, slept on the job called Block “errand boy.” Id. ¶¶ 42–43. Block
reported Hernandez’s sleeping and characterized his comment as racist. Id. ¶ 44. Hernandez
denied that the comment was racist, got upset, and threw his keys. Id. ¶¶ 46–47. Hernandez was
not disciplined and was “transferred to an all Black school.” Id. ¶ 48.
Around 2013, Block transferred to Martin Luther King (MLK) Middle School. Id. ¶ 49. A
student assaulted him, the school was locked down, and Defendant Michael Essien (the principal
there) restrained the student with a wrestling hold. Id. ¶¶ 50–52. Essien said to Block, “You’re
not going to file a worker comp claim because you’re a tough guy, right?” Id. ¶ 53. Block did not
file a claim because he was intimidated. Id. ¶ 54. The same student later caused multiple other
lockdowns and threatened a mass shooting, and was barred from campus but subsequently allowed
to return. Id. ¶¶ 55–56.
Another SFUSD employee named Flora, who is Filipina, prepared breakfast for the
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students and yelled at Block for picking up the breakfast carts too early. Id. ¶¶ 57–58. Block
arranged for sixth-grade students to pick up the carts instead. Id. ¶ 59. When the students
knocked on the door a few weeks later, Flora yelled to them, “Get those people to unlock the
door.” Id. ¶ 60. According to Block, Flora’s use of the term “those people” was a racist reference
to Block. Id. ¶ 61. Block reported the incident to Essien, but nothing was done. Id. ¶¶ 62–63.
A week later, the students who picked up the cart had Flora’s phone. Id. ¶ 65. Block gave
the phone to Essien’s secretary. Id. ¶ 66. The students later came back crying, and they told
Block that Flora hit them and accused them of stealing her phone. Id. ¶¶ 67–68. Block reported
the incident to a social worker, Ms. Downey, who had the students write statements and provided
that information to Assistant Principal Fechter, who is white. Id. ¶ 69. According to Block,
Fechter was required to report child abuse but failed to do so. Id. Block’s First Amended
Complaint does not specifically allege when this incident took place, but an attachment indicates
that it occurred in October of 2019. Id. Ex 2 (ECF No. 1 at 45).
Around an hour later, Downey told Block that Flora was reporting to Fechter that Block
said inappropriate things to Flora. Id. ¶ 70. Fechter told Block about those accusations days later,
and Block told Fechter that he had not spoken to Flora in years. Id. ¶¶ 71–72. Fechter opened a
Human Resources (HR) investigation into Block’s alleged comments, but no investigation was
conducted into Flora hitting students. Id. ¶ 74.
The investigation, conducted by head of HR Stephanie Bealby (who is white), took around
three months. Id. ¶¶ 75–76. Bealby concluded, falsely, that Block probably said inappropriate
things to Flora, and told Block that if there was any future failure to investigate Flora hitting
students, Block should come to HR. Id. ¶¶ 77–78.
Flora “continue[d] to harass” Block, and Block reported that harassment to Fechter and
Essien. Id. ¶¶ 79–80. Fechter said he would tell Flora to be more professional, but “Essien [did]
nothing and sa[id] as long she doesn’t say anything to him, it’s ok.” Id. ¶ 82. When Flora saw
Block, she “start[ed] throwing carts.” Id. ¶ 83.
At a career day organized by China Morgan, Morgan asked Block to open the bathroom
doors. Id. ¶¶ 84–85. Apparently in response to him doing so, Flora told Block that he did not
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belong there and needed to leave, and told Morgan to make Block leave. Id. ¶ 86. “She may have
said the N-word.” Id. Block gave the keys to Morgan and stepped away. Id. ¶ 87. Morgan wrote
a letter to Essien3 reporting Flora’s misconduct, and later met with Essien, but Block heard
nothing further about the incident. Id. ¶¶ 88–89.4
Block alleges that he was harassed by multiple students, who called him “the N-word,” in
addition to various insults that were not explicitly based on race. Id. ¶¶ 90–91, 99–100. When
Block arranged a meeting with Essien and a student named Asoni Cooks, Cooks told Essien, “I
don’t like that old ass mother fucker.” Id. ¶ 94. Essien told Block to change his behavior and ask
Cooks for a hall pass in the future as the student requested, even though Cooks was entering
classrooms for another grade and slapping other students. Id. ¶¶ 96–97. According to Block,
Cooks was “directed to stay at home because it isn’t safe for him, the staff, or other students,
because older kids had come to the school looking to kill him.” Id. ¶ 98.
When Block met with another problematic student and Fechter, the student “repeat[ed] the
abusive words,” causing Block to cry during the meeting. Id. ¶¶ 101–02. Fechter responded,
“Why are you crying? These are Black kids calling you the N-word.” Id. ¶ 103. In Block’s view,
that response suggested that Fechter believed the term was acceptable. Id.
Block complained to HR, and investigator Jelani Hironaka determined after an
investigation that Block had experienced retaliation and a lack of sufficient support from Essien.
Id. ¶¶ 105–07. Hironaka said that a superintendent would be meeting with Block and Essien. Id.
¶ 107. Essien retaliated by placing Block on administrative leave. Id. ¶ 108. The meeting with
the superintendent never occurred. Id. Hironaka was later “removed from certain investigations,
apparently for refusing to find for SFUSD.” Id.
During the COVID-19 pandemic, someone in HR emailed Block offering him a leave of
absence because Fechter had reported Block being late to work. Id. ¶ 110. Block rejected that
3 The First Amended Complaint here erroneously refers to Mr. Essien as “Ms. Essien” and “Ms.
Essen.” FAC ¶¶ 88–89.
4 The First Amended Complaint does not indicate when this occurred. Morgan’s letter attached
thereto indicates that it occurred on February 18, 2022. ECF No. 1 at 52. It is not clear whether
the allegations of the First Amended Complaint are presented in chronological order. Cf. FAC
¶ 109 (later discussing a work assignment “[d]uring COVID”).
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offer and told HR that he was not late. Id. ¶¶ 111. Fechter then told HR that Block did not have a
work assignment, which was also false. Id. ¶¶ 109, 112.
Block later contacted April Scott, “the acting principal for MLK High School” (sic5), who
arranged a meeting with several stakeholders. Id. ¶¶ 113–14. Essien admitted at that meeting that
Block had not been treated right, and Fechter said that his false statement about Block not having
an assignment was the result of Fechter “having a bad day.” Id. ¶¶ 115–16. Fechter was not
disciplined. Id. ¶ 117.
Another student later yelled at Block, “You N-word ass bitch,” which Block reported to
Essien. Id. ¶ 119. Block was later involved in breaking up a fight at the school involving a
student named Urolee, after which a social worker, Ms. Gauthier,6 was left in tears. Id. ¶¶ 120–21.
Block was “thrown three times” during the fight. Id. ¶ 120. In Block’s view, the school did not
take restorative justice measures after the fight. Id. ¶ 122.
In October of 2022, Block was called to a meeting with Essien, Fechter, and Whittington
Jackson, a union steward. Id. ¶¶ 123–24. Essien said that two students reported that Block had
“said awful things about” Gauthier, causing division among the staff, and that Gauthier came to
Essien in tears over what the students had said Block said. Id. ¶¶ 126, 128–29. Block denied
making such statements. Id. ¶ 127. Essien made a derisive comment about needing a union
representative when meeting with Block, and noted Block’s previous complaint about students
calling him a racial slur. Id. ¶¶ 130–31. Essien acknowledged that he had instructed Block to take
up that previous complaint with a teacher and to let the teacher handle it. Id. ¶ 132. Essien
characterized as accurate the reports that Block made inappropriate statements about Gauthier. Id.
¶ 133. Essien also said that Block’s purported abuse of Gauthier, as well as his previous
complaints regarding racial slurs, “cause ‘division amongst the staff.’” Id.
5 The First Amended Complaint elsewhere refers to MLK as a middle school. FAC ¶ 49.
6 Block’s First Amended Complaint indicates that he is not sure of the spelling of some names,
including Gauthier’s, which the First Amended Complaint spells as “Goteay” or “Gotaey.” See
FAC ¶ 121. This Order spells that name as it appears in attachments to the First Amended
Complaint, see ECF No. 1 at 47–48, 50–51, and as Defendants assert is accurate in their Motion,
ECF No. 11 at 11 n.5. This Order otherwise spells names as they appear in the First Amended
Complaint, recognizing that some spellings may not be accurate.
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After that meeting, Block requested a meeting with Gauthier, who said that she had no
complaints about Block, and instead had a great relationship with him and felt sorry for him. She
said that she had been crying because the students had cursed at her. Id. ¶¶ 134–37.
Later—the First Amended Complaint does not specify when, but a government claim
attached to it indicates a few days after the meeting with Essien, ECF No. 1 at 47—Block was
called to Fechter’s office, and Superintendent Han Phung joined by videoconference. FAC
¶¶ 138–39. Phung instructed Fechter to take Block’s keys and escort him off campus. Id. ¶ 140.
Phung told Block that he was “being removed for gross misconduct for something that happened
in 2007 at Balboa High School.” Id. ¶ 141. She said that he must “stay two blocks away from
MLK, and if he fails to, he will be terminated.” Id. ¶ 140. Block was escorted off campus in tears,
in view of students and staff, which humiliated him. Id. ¶ 143. He was not allowed to take his
personal property, which was later stolen. Id. ¶ 142.
Two representatives of the District, a Ms. Kelly and a Mr. Quinn (the latter being an
attorney), interviewed Block “[d]uring the time [he was] off.” Id. ¶ 144. Quinn told Block that he
was a liar, and said that he would be fired if he did not resign. Id. ¶ 145. A union representative
(William Happy) and a union attorney also attended the meeting, which was recorded. Id. ¶ 146.
Happy told Block that Quinn was trying to intimidate him into quitting. Id. ¶ 147.
In January of 2023, “Superintendent Phung interview[ed] Kenneth [Block] and ask[ed] for
witness statements regarding [his] complaint about Mr. Essien’s retaliation, harassment, and
discrimination in the prior group meeting regarding Ms. [Gauthier].” Id. ¶ 148.
Stephanie Bealby, the HR officer who previously investigated Block’s dispute with Flora,
sent Block a letter in April of 2024 stating that the allegations of misconduct with a student in
2007 were accurate and supported by new evidence. Id. ¶ 149. In September of 2024, union
representative Happy sent the following email:
This message is intended for Kenneth Block. I am confirming that
during the investigation into Mr. Block during the 22-23 school year
did not question [sic] Mr. Block or find any new evidence that had
not already been addressed and litigated. Thank you.
William Happy
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Id. ¶ 150. Block alleges that “Defendant lost some of the prior records and there is no new
evidence.” Id. (emphasis omitted).
Block submitted two claims to the District in 2024, and asserts that the District failed to
respond within the time allowed. Id. ¶ 154. He attaches the District’s response letter, which is
dated September 12, 2024 and states that the District considered his claims untimely, or to the
extent that they might be timely, denied them. ECF No. 1 at 61–62. Block received right-to-sue
letters from the California Civil Rights Department and the U.S. Department of Justice. FAC
¶ 154 & Exs. 1, 3.
The First Amended Complaint does not address any employment action that the District
took after Bealby’s April 2024 letter. Block’s June 13, 2024 government claim letter attached to
the First Amended Complaint indicates that Bealby instructed him to return to work. ECF No. 1 at
49.
Block’s First Amended Complaint asserts the following claims: (1) discrimination based
on sex, age, race, color, and/or ancestry in violation of section 12940(a) of the California
Government Code, a provision of the Fair Employment and Housing Act (FEHA), FAC ¶¶ 155–
59; (2) harassment on account of the same protected classes in violation of section 12940(j) of the
Government Code, FAC ¶¶ 160–67; (3) retaliation in violation of section 12940(h) of the
Government Code, FAC ¶¶ 168–73; (4) failure to prevent discrimination, harassment, or
retaliation in violation of section 12940(k) of the Government Code, FAC ¶¶ 174–79; (5)
infringement of Block’s Fourteenth Amendment rights to equal protection and due process of law,
as well as statutory rights under Title VII of the Civil Rights Act of 1964, in violation of 42 U.S.C.
§ 1983, FAC ¶¶ 180–87; (6) defamation, FAC ¶¶ 188–94; (7) self-publication, FAC ¶¶ 195–201;
(8) discrimination and harassment on account of race and sex in violation of Title VII, FAC
¶¶ 202–08; and (9) retaliation in violation of Title VII, FAC ¶¶ 209–12.
Block’s fifth claim, under § 1983, is asserted against Essien. ECF No. 1 at 25 (heading).
The rest are less clear: claims one through four, six, and seven are asserted against “Defendant,”
and claims eight and nine are asserted against “Caltrans,” apparently in error. Id. at 22–29
(headings). The Court presumes that Block intended to assert all claims except for his § 1983
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claim against the District. See ECF No. 11 at 7 n.1 (Defendants’ Motion, noting that Block’s
counsel clarified that he intended to assert Title VII claims against the District).
Block’s prayer for relief includes, among other things, punitive damages and injunctive
relief. Id. at 29–30.
B. The Parties’ Arguments
1. Defendants’ Motion
Defendants argue that Block has not sufficiently alleged a Title VII claim because he does
not allege that he timely filed a discrimination charge with the Equal Employment Opportunity
Commissioner (EEOC). ECF No. 11 at 13. Defendants further argue that Block’s Title VII and
FEHA discrimination claims lack factual allegations that Defendants were motivated by his
membership in any protected class. Id. at 14–15. They also dispute whether many of the incidents
of purported mistreatment alleged in the First Amended Complaint constitute adverse employment
actions on which Block can base a discrimination claim. Id. at 14–16.
Defendants move to dismiss Block’s harassment claims to the extent they are based on age
and sex. Id. at 16. They do not address his harassment claims based on the other protected classes
he invokes (race, color, and ancestry). See id.; cf. FAC ¶¶ 161, 207.
Defendants contend that Block’s defamation and self-publication claims should be
dismissed for failure to identify a statutory basis to sue a governmental entity under California
law. ECF No. 11 at 17. Defendants argue that those claims are also untimely as to some of the
alleged statements at issue. Id. at 18. The only statements Defendants identify as falling within
the limitations period is Bealby’s alleged 2024 written notice that Block engaged in misconduct in
2007. Id. at 19. Defendants argue that Block has not alleged the contents of that statement with
the requisite specificity, and that her statements in the context of an internal investigation are
protected by both absolute privilege (as part of an official proceeding) and qualified common
interest privilege. Id.
With respect to the self-publication claim, Defendants contend that Block has not alleged
that he actually repeated any defamatory statement, much less that he was unduly pressured to do
so. Id.
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Defendants argue that Essien is entitled to qualified immunity on Block’s claim under
§ 1983, and that Block’s “extremely vague” allegations regarding Essien’s conduct do not show
that he violated any clearly established law. Id. at 20–21. To the extent Block asserts a due
process violation, Defendants argue that Block has not sufficiently alleged any infringement of a
liberty or property interest, or that any such infringement lacked due process. Id. at 22. To the
extent Block asserts an equal protection violation, Defendants contend that he fails to allege that
similarly situated employees were treated differently. Id. at 22–23. And to the extent Block
asserts a claim under § 1983 for violations of Title VII, Defendants argue that Block has not
alleged any personal conduct by Essien that could support such a claim. Id. at 23.
Defendants move to strike “Paragraphs 21-27, 29-37, 38-40, 41-48 concern[ing] Plaintiff’s
time at Malcolm X Elementary, Willie Brown Middle School, Washington High School and
Bayview Zone”7 as outside any applicable statute of limitations and unrelated to claims that might
arise from more recent alleged conduct. Id. at 24–26. They do not seek to strike Block’s
allegations regarding his experience in 2007 at Balboa High School, recognizing that “they relate
to the renewed student complaint for which [Block] alleges he was placed on administrative leave
in 2022.” Id. at 25 n.6. They also move to strike paragraphs 98 and 120 through 122, concerning
students Asoni Cooks and Urolee, as unrelated to Block’s claims. Id. at 26
Defendants move to strike Block’s prayer for punitive damages as unavailable against the
District and unsupported against Essien. Id. at 26–27. Defendants move to strike Block’s prayer
for injunctive relief as overly vague, an improper intrusion into state authority, and unavailable
where Block has not shown that money damages would be insufficient to redress any injury. Id. at
27–28.
2. Block’s Opposition Brief
Block’s opposition brief consists largely of extensive block quotes from practice guides,8
7 The First Amended Complaint does not include a paragraph 28, so Defendants effectively seek to
strike paragraphs 21 through 48.
8 Defendants assert that some of Block’s block quotes “span as long as five consecutive pages.”
ECF No. 18 at 5. That is not quite accurate. The longest uninterrupted block quote is four pages
long. ECF No. 14 at 13–16.
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with minimal analysis tying those points of law to the allegations and arguments in this case. See
generally ECF No. 14. It includes a number of errors of spelling, punctuation, and grammar.
Block is represented by counsel. Neither the opposition brief nor the First Amended Complaint
(which has many of the same deficiencies) meets the standards that this Court expects from a
licensed attorney.
Block contends that the First Amended Complaint and its attachments show that his
administrative charge was dual-filed with both the California Civil Right Department and the
EEOC. Id. at 11–12.
For his discrimination claims, Block argues:
When we consider the entirety of the complaint, general allegations,
and allegations in the EEOC cause of action [sic], we see ample facts
showing adverse employment actions, including, placed on
administrative leave, creating objectively intolerable working
conditions, badgering, harassing, and humiliating Kenneth [Block] to
quit, failing to protect him from racial discrimination and harassment,
an admission by Essien that Kenneth had been mistreated, Mr. Fechter
admitting lying about Kenneth, Kenneth repeatedly subjected to the
N-word and suggested he should accept it, told to be a tough “guy”—
no work comp, referred to as an “errand boy”, subjected to bogus
investigations and findings, and falsely accused for sexual
misconduct in 2007—and then told there was new evidence, when
there was not.
Id. at 17. He asserts that the First Amended Complaint “provide[s] ample direct and
circumstantial evidence that race, sex, age, color and ancestry were substantial factors in adverse
employment actions.” Id. at 18. According to Block, “facts and arguments supporting the EECC
[sic] discrimination claim support the FEHA claim as well.” Id. at 19. Block does not address
Defendants’ arguments regarding the statute of limitations.
With respect to his harassment claims, Block contends that the “chronological flow of the
complaint” demonstrates that “Defendants failed to prevent the harassment and allowed it to grow
and fester.” Id. at 21. He specifically notes:
that he was called an “errand boy,” called one of “those people,” he
didn’t “belong there,” “Whenever we meet we [sic] Mr. Block we
gotta have a union rep,” Essien’s false statement that Kenneth
verbally abused Ms. Goteay [sic], and in April, 2024, Kenneth
received a letter that falsely stated there was new evidence to support
wrongdoing in 2027 [sic].
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ECF No. 14 at 23.
For his claim under § 1983, Block begins—for reasons that are not clear—with a lengthy
block quote from a practice guide explaining that the statute generally does not apply to private,
non-governmental employers. Id. at 23. He then argues that Essien is not entitled to qualified
immunity because the District’s own investigation by Jelani Hironaka found that Block had been
retaliated against and not properly supported, and because “Essien admitted Kenneth was not
being treated right” and that Essien had “failed to personally address Kenneth’s complaint about
being called the N-word and delegated the matter merely to a teacher.” Id. at 24. According to
Block, he sufficiently alleges a “deprivation of property” based on having been placed on
administrative leave, and a deprivation of liberty based on the instruction to stay away from the
school. Id.
In response to Defendants’ Motion to Strike, Block contends that past conduct is relevant
to a continuing violation theory for his FEHA claims and his Title VII harassment claim. Id. at
24–25. He concedes that SFUSD cannot be held liable for punitive damages, but argues that he
sufficiently alleges “malice, oppression, and/or fraud to support punitive damages under Civil
Code section 3294” against Essien. Id. at 26. Block also argues that the Court should not strike
his prayer for injunctive relief because the statutes on which he bases his claims allow for such
relief. Id. at 26–27.
3. Defendants’ Reply
Defendants acknowledge in their Reply that Block filed an administrative charge with the
EEOC, but argue that his Title VII claims should nevertheless be dismissed because he does not
allege when he filed that charge. ECF No. 18 at 5–6.
As in their Motion, Defendants contends that Block has not sufficiently alleged either any
cognizable adverse employment action or a connection between such an action and any protected
class, both of which are necessary for his discrimination claims under Title VII and FEHA. Id. at
5–7. Defendants acknowledge that the District placing Block on administrative leave in 2022
“could possibly be considered an adverse employment action,” but argue that Block has not
offered allegations to suggest that Superintendent Han Phung was motivated by Block’s race, age,
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sex, color, or ancestry, or that any employee outside of those protected classes was treated
differently. Id. at 6–7.
Defendants again argue that Block’s claims for harassment based on age or sex are
insufficient. Id. at 7–8. They acknowledge allegations that students called Block an “old ass
man” and “old ass motherfucker,” but argue that Block’s allegations do not suggest that the
District responded unreasonably to those incidents. Id. Once again, Defendants do not address
Block’s claims for harassment to the extent that they are based on race, color, or ancestry. See id.
Defendants contend that Block’s opposition brief does not meaningfully defend the
sufficiency or timeliness of his defamation and self-publication claims, instead primarily seeking
leave to amend. Id. at 9–10. Defendants argue that Block has not identified how he could amend
those claims to salvage them, particularly with respect to the applicable statute of limitations. Id.
Defendants reiterate their previous arguments with respect to Block’s claim under § 1983,
arguing that Block alleges neither the necessary elements of a constitutional or statutory violation,
nor personal involvement by Essien in any such deprivation of Block’s rights. Id. at 10–12.
With respect to their Motion to Strike, Defendants argue that Block has not alleged a
sufficient connection between the various incidents recited in the First Amended Complaint to
establish a continuing violation. Id. at 12–13. Defendants also argue again that Block has not
alleged sufficiently wrongful conduct by Essien to support punitive damages, and that injunctive
relief would not be appropriate based on Block’s allegations. Id. at 13–15.
III. LEGAL STANDARDS
A. Motion to Dismiss
A complaint may be dismissed under Rule 12(b)(6) of the Federal Rules of Civil Procedure
“based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a
cognizable legal theory.” Godecke v. Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th Cir. 2019)
(citation and internal quotation marks omitted). A complaint generally must include a “short and
plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).
A court reviewing a 12(b)(6) motion must “accept all factual allegations in the complaint
as true and construe the pleadings in the light most favorable to the nonmoving party.” Outdoor
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Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007). “Threadbare recitals
of the elements of a cause of action . . . do not suffice,” however, and a court need not credit “legal
conclusions” or “mere conclusory statements.” See Ashcroft v. Iqbal, 556 U.S. 662, 678–79
(2009). The allegations in the complaint “must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must
demonstrate “facial plausibility” by pleading “factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678.
A court’s review under Rule 12(b)(6) is generally limited to the contents of a complaint,
with the exception of materials incorporated by reference in a complaint or materials subject to
judicial notice. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 2018).
A court generally should not dismiss a complaint with prejudice under Rule 12(b)(6) unless it is
clear the complaint cannot be saved by any amendment. See United States v. Corinthian Colleges,
655 F.3d 984, 995 (9th Cir. 2011). “[L]eave to amend should be freely granted ‘when justice so
requires.’” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Fed. R. Civ. P. 15(a)).
Generally, leave to amend may be denied only if allowing the amendment would unduly prejudice
the defendant, cause undue delay, or be futile, or if the plaintiff has acted in bad faith. Leadsinger,
Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008).
B. Motion to Strike
“The court may strike from a pleading an insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter” Under Rule 12(f) of the Federal Rules of Civil
Procedure. Fed. R. Civ. P. 12(f). “Motions to strike are generally regarded with disfavor because
of the limited importance of pleading in federal practice, and because they are often used as a
delaying tactic.” Mag Instrument, Inc. v. JS Prods., Inc., 595 F. Supp. 2d 1102, 1106 (C.D. Cal.
2008); see also Pollock v. Fed. Ins. Co., No. 21-cv-09975-JCS, 2022 WL 912893, at *5 (N.D. Cal.
Mar. 29, 2022). The purpose of Rule 12(f) is “to avoid the expenditure of time and money that
must arise from litigating spurious issues by dispensing with those issues prior to trial.”
Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973 (9th Cir. 2010). “Ultimately, whether to
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grant a motion to strike lies within the sound discretion of the district court.” Nguyen v. CTS Elecs.
Mfg. Sols. Inc., No. 13-cv-03679-LHK, 2014 WL 46553, at *3 (N.D. Cal. Jan. 6, 2014) (citing
Whittlestone, 618 F.3d at 973).
IV. ANALYSIS
The Court’s analysis addresses Block’s claims in the same order as the parties’ briefing,
which is not the same order they appear in Block’s First Amended Complaint. The Court begins
with Block’s discrimination claims under Title. VII.
A. Title VII Claims
Block’s eighth and ninth claims assert discrimination and retaliation (respectively) in
violation of Title VII. FAC ¶¶ 202–12. Title VII provides that it is unlawful “to discriminate
against any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-2(a)(1). Title VII also prohibits retaliation for opposing discrimination or for
participating in Title VII proceedings. Id. § 2000e-3(a).
1. Timeliness
Title VII requires a plaintiff to file an administrative charge no later than 180 days after an
alleged unlawful employment practice, except that where (as here) a plaintiff also pursues relief
through a state or local agency, that deadline is extended to 300 days. 42 U.S.C. § 2000e-5(e)(1).
Defendants move to dismiss Block’s Title VII claims as untimely because Block did not
specifically allege when he filed an administrative charge. ECF No. 11 at 13.
Block asserts in his opposition brief that he timely filed his administrative claim with the
EEOC because the same EEOC case number appears on communications from both the California
Civil Rights Division and the EEOC, thus indicating that the administrative complaint was cross-
filed with both agencies. ECF No. 14 at 11–12. Somewhat strangely for an argument about
timeliness, Block fails to address when he filed that administrative claim. An exhibit to Block’s
First Amended Complaint, however, indicates that he filed his administrative complaint with the
California Civil Rights Department on March 31, 2023. ECF No. 1 at 34–35. Drawing reasonable
inferences in Block’s favor, the Court infers for the purpose of the present Motion that Block’s
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administrative complaint was cross-filed with the EEOC the same day. See Laquaglia v. Rio
Hotel & Casino, Inc., 186 F.3d 1172, 1175 (9th Cir. 1999) (holding that, pursuant to commonly
used worksharing agreements between state agencies and the EEOC, “a charge filed with the state
agency before the 300-day filing deadline expires is deemed automatically filed with the EEOC on
that same day”).
The administrative complaint was therefore timely as to Title VII claims arising no earlier
than June 4, 2022, three hundred days before Block filed his administrative charge.9 The earlier
incident that Block alleges occurred within that time period is his October 2022 meeting with
Essien regarding students’ allegedly false reports that Block said “awful things” about Gauthier,
see FAC ¶ 123–33, followed by the meeting where Phung placed Block on administrative leave
for purported misconduct in 2007, id. ¶¶ 138–41.
2. Title VII Discrimination Claim
At summary judgment, a plaintiff alleging disparate treatment must establish a prima facie
case of discrimination under the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). That standard generally requires the plaintiff to show that he is a member of a protected
class, that he was qualified for his position or performing it adequately, that he was subjected to an
“adverse employment action,” and that other similarly situated employees outside his protected
class were treated more favorably—though the precise avenues available for plaintiffs to meet
their burden vary depending on circumstances. See Lui v. DeJoy, 129 F.4th 770, 777 (9th Cir.
2025).
The McDonnell Douglas framework does not, however, apply at the pleading stage.
Austin v. Univ. of Or., 925 F.3d 1133, 1136–37 (9th Cir. 2019) (citing Swierkiewicz v. Sorema
N.A., 534 U.S. 506 (2002)). Instead, a plaintiff simply “must include ‘sufficient, nonconclusory
allegations plausibly linking the [adverse] action to discrimination.’” Williams v. Wolf, No. 19-cv-
9 As Defendants acknowledge elsewhere in their Motion, ECF No. 11 at 25, FEHA has a longer
three-year statute of limitations to submit an administrative charge to the state Civil Rights
Department. Cal. Gov’t Code § 12960(e)(5); see, e.g., Lacy v. Elevance Health Cos., Inc., No.
2:22-cv-07841-FLA (ASx), 2024 WL 2106726, at *4 (C.D. Cal. Feb. 1, 2024).
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00652-JCS, 2020 WL 1245369, at *9 (N.D. Cal. Mar. 16, 2020) (quoting Austin, 925 F.3d at
1138).
To be cognizable as an adverse employment action, the action in question must have
“brought about some ‘disadvantageous’ change in an employment term or condition,” or with
respect to compensation or privileges of employment. See Muldrow v. City of St. Louis, 601 U.S.
346, 354 (2024) (citation omitted). A plaintiff need not show “that the harm incurred was
‘significant[,]’ . . . [o]r serious, or substantial, or any similar adjective suggesting that the
disadvantage to the employee must exceed a heightened bar.” Id. at 355.
In his opposition brief, Block lists the following purported adverse actions:
placed on administrative leave, creating objectively intolerable
working conditions, badgering, harassing, and humiliating Kenneth
[Block] to quit, failing to protect him from racial discrimination and
harassment, an admission by Essien that Kenneth had been
mistreated, Mr. Fechter admitting lying about Kenneth, Kenneth
repeatedly subjected to the N-word and suggested he should accept
it, told to be a tough “guy”—no work comp, referred to as an “errand
boy”, subjected to bogus investigations and findings, and falsely
accused for sexual misconduct in 2007—and then told there was new
evidence, when there was not.
ECF No. 14 at 17.
Many of those incidents fall outside the 300-day limitations period. Most of them are also
the type of conduct that might contribute to a theory of harassment or a hostile work environment.
A hostile work environment so intolerable that it effectively alters the terms and conditions of a
plaintiff’s employment is also actionable as “discrimination” under Title VII,10 but courts and
litigants typically address those theories separately. See id. (citing Nat’l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 105 (2002), which addresses how the statute of limitations applies
differently to those two theories). This Order follows that practice, addressing Block’s harassment
theory separately below.11
10 This differs from FEHA, where harassment is broken out in a different statutory provision from
discrimination. See Cal. Gov’t Code § 12940(a), (j).
11 Harassment and other mistreatment can also effectively lead to an adverse employment action
under a theory of constructive discharge, when an employee resigns due to intolerable working
conditions, as some of Block’s quotations from practice guides note. See, e.g., ECF No. 14 at 13–
14. But Block does not allege that he resigned or otherwise ceased working for the District, so
that theory is not applicable here.
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Setting aside the harassment theory for the moment, the only discrete adverse employment
action that Block alleges within the 300-day limitations period is having been placed on
administrative leave in October 2022. Unlike a theory of harassment, a theory of discrimination
under Title VII does not permit a plaintiff to rely on the “continuing violation” doctrine to include
related conduct predating the statute of limitations. See Morgan, 536 U.S. at 114–15, 122.
As Defendants correctly argue, Block has not offered “sufficient, nonconclusory
allegations plausibly linking [the October 2022 adverse] action to discrimination.’” See Austin,
925 F.3d at 1138. Block does not specifically allege that Phung, who placed him on leave, was
motivated by his race or sex—the protected classes he invokes in his Title VII discrimination
claim, FAC ¶ 207. Nor does he allege facts to support such a conclusion, like that other similarly
situated employees who were not Black or male were treated better under similar circumstances.
In an argument addressed to his § 1983 claim, Block asserts that the claim is supported by
his allegation that “Flora’s physical abuse of children was ignored while complaints against
Kenneth [were] given strict scrutiny.” ECF No. 14 at 24. While the allegation that Flora (who is
female and Filipina) hit students (FAC ¶ 68) is serious, it implicates different conduct from the
allegation that Block made inappropriate sexual comments and offers to a student (FAC ¶ 15).
Moreover, as far as the Court can discern from Block’s allegations (which are not always clear as
to time), the purported incidents appear to have occurred years apart, at different schools, with
different supervisory personal reviewing the complaints. Block alleges that the accusations
against him occurred at Balboa High School in 2007, that Erica Maggi and Principal Patricia Gray
initially conducted an investigation, and that Superintendent Phung and other personnel later
following up in 2022. FAC ¶¶ 14–19. In contrast, Block alleges that students reported Flora hit
them at MLK Middle School in 2019, and that Vice Principal Fechter failed to investigate. FAC
Ex. 2 (ECF No. 1 at 45). Though Block’s video call with Phung occurred in Fechter’s office, FAC
¶ 138, there is no allegation that Fechter played any role in investigating Block’s purported
misconduct or in the decision to place him on leave. Taking the allegations of Block’s First
Amended Complaint as a whole, Fechter’s alleged failure to investigate reports that Flora hit
students in 2019 does not support a plausible inference that Block was placed on leave in 2022
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(for purported sexual comments in 2007) because he is Black or male.
Accordingly, to the extent that Block’s Title VII discrimination claim is based on a theory
of discrete adverse employment action rather than a hostile work environment, it is DISMISSED
for failure to allege sufficiently that Block was subjected to any adverse employment action on
account of his race or sex. It is at least possible that Block may be able to cure that defect through
amendment. The Court therefore grants Block leave to amend this theory.
3. Title VII Harassment Theory
As noted above, a plaintiff may bring a Title VII discrimination claim “[w]hen the
workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently
severe or pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). “[C]onsideration of
the entire scope of a hostile work environment claim, including behavior alleged outside the
statutory time period, is permissible for the purposes of assessing liability, so long as an act
contributing to that hostile environment takes place within the statutory time period.” Morgan,
536 U.S. at 105.
The Ninth Circuit has held that an educational employer may be held liable for harassment
of its employees by students, but only if the employer failed to take appropriate corrective action
in response:
[Plaintiff] Campbell did also submit several referrals for offensive
comments that were, by their very terms, based on Campbell’s race
or sex, some of which were severe. But the students were not
Campbell’s employers. Thus, even if comments like the students’ are
sufficient to create a hostile work environment, [Defendant] the DOE
may be held liable for the students’ harassing conduct only to the
extent that it failed reasonably to respond to the conduct or to the
extent that it ratified or acquiesced in it. That is, the DOE may be held
to account for the students’ actions only if, after learning of the
harassment, it failed to take prompt corrective measures that were
“reasonably calculated to end the harassment.”
Campbell v. Hawaii Dep’t of Educ., 892 F.3d 1005, 1017 (9th Cir. 2018) (citations omitted).
Defendants’ Motion and Reply do not address Block’s harassment claims to the extent they
are based on race, color, or ancestry. The Court therefore concludes that Defendants have not
moved to dismiss those theories and declines to dismiss them. The Court notes that Block alleges
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at least one reference by Essien within the limitations period to students calling Block a racial slur,
FAC ¶¶ 131–32, and that Block also alleges earlier incidents where students used that slur and
Block did not believe the District responded appropriately, e.g., id. ¶¶ 92, 100–03. In the absence
of any argument why Block’s race-based harassment claim should be dismissed, the Court need
not and does not resolve whether Block’s allegations on that subject are sufficient to state a claim.
To the extent Block’s Title VII harassment theory is based on sex, however, the Court
agrees with Defendants that his allegations are insufficient. First, Block includes no allegations of
comments that in any way implicated his sex within the 300-day limitations period before he filed
his administrative charge, nor does he allege that non-male employees were treated better than he
was during that time. That alone is grounds for dismissal. The continuing violation doctrine
allows a plaintiff to rely in part on conduct predating the limitations period if the overall course of
conduct continued into the limitations period. It does not abolish the limitations period altogether
where a plaintiff fails to include any allegations that he was harassed on account of a protected
class within that period.
Even if the Court were to look beyond the limitations period, Block’s allegations of
gendered comments do not on their face reflect hostility based on gender. Block alleges that a
male coworker called him an “errand boy” sometime before 2013, FAC ¶ 43, and that Essien
called him a “tough guy” when he pressured Block not to file a workers’ compensation claim, id.
¶ 53. Those allegations potentially reflect mistreatment, but do not on their face reflect hostility
based on gender. These comments do not resemble the use of “perhaps the most offensive and
inflammatory racial slur in English,” on which Block bases (at least in part) his racial harassment
claims. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1116 (9th Cir. 2004) (citation
omitted).12
Block’s Title VII claim is therefore DISMISSED with leave to amend to the extent that it
12 The Court recognizes that this term can sometimes carry different connotations when used by
and among people who are Black. See FAC ¶ 103 (alleging Fechter’s dismissive attitude towards
Block’s complaints because the term was used by Black students). But as discussed above,
Defendants have not moved to dismiss Block’s harassment claims to the extent they are based on
race. The Court need not and does not reach any conclusion as to how the race of the students
might affect Block’s claim.
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rests on a theory of sex-based harassment, but may proceed to the extent it rests on a theory of
race-based harassment.
4. Title VII Retaliation Claim
Title VII’s anti-retaliation provision prohibits “discriminat[ion] against any individual . . .
because he has opposed any practice made an unlawful employment practice by this subchapter, or
because he has made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). That statute encompasses
retaliatory conduct that is “serious enough to ‘dissuade[] a reasonable worker from making or
supporting a charge of discrimination.’” Muldrow, 601 U.S. at 348 (quoting Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)).
Defendants’ briefs do not mention Block’s retaliation claims, which Block asserts only
against the District. Defendants’ only arguments regarding retaliation are in the context of
Block’s § 1983 claim against Essien, where Defendants contend that Block has not sufficiently
alleged Essien’s personal involvement in any retaliatory conduct. ECF No. 11 at 21, 23; ECF No.
18 at 10–11. Defendants thus have not moved to dismiss Block’s Title VII retaliation claim
against the District, which may proceed.
B. FEHA Claims
Block assert claims for discrimination, harassment, retaliation, and failure to prevent
discrimination, harassment, or retaliation under California’s FEHA statute. FAC ¶¶ 155–79
(citing Cal. Gov’t Code § 12940(a), (h), (j), (k)). FEHA imposes a substantially similar standard
to Title VII for claims against employers. Both state and federal “courts look to pertinent federal
precedent” interpreting Title VII when considering claims under FEHA. Guz v. Bechtel Nat’l Inc.,
24 Cal. 4th 317, 354 (2000); see also Rodriguez v. Airborne Express, 265 F.3d 890, 896 n.4 (9th
Cir. 2001). Such claims often rise or fall together.
Block’s brief includes a quotation from a practice guide asserting that “FEHA is broader
than Title VII” in that it “specifically prohibits ‘harassment’ (and retaliation) as well as
‘discrimination.’” ECF No. 14 at 20. But as discussed above, Title VII also explicitly prohibits
retaliation and implicitly prohibits harassment. Neither party here has argued or offered authority
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that the standards for those claims under the two statutes are materially different.
FEHA is broader than Title VII in at least two respects. First it provides a three-year rather
than 300-day statute of limitations to file an administrative charge with the state Civil Rights
Department. Cal. Gov’t Code § 12960(e)(5); see, e.g., Lacy v. Elevance Health Cos., Inc., No.
2:22-cv-07841-FLA (ASx), 2024 WL 2106726, at *4 (C.D. Cal. Feb. 1, 2024). Second, it protects
a broader range of classes, prohibiting discrimination or harassment based on “race, religious
creed, color, national origin, ancestry, physical disability, mental disability, reproductive health
decisionmaking, medical condition, genetic information, marital status, sex, gender, gender
identity, gender expression, age, sexual orientation, or veteran or military status.” Cal. Gov’t
Code § 12940(a), (j)(1). In addition to the theories of race and sex discrimination that he also
asserts under Title VII, Block further alleges discrimination based on age, color, and ancestry in
his FEHA claims. FAC ¶¶ 156, 161. Those distinctions do not materially change the outcome.
For substantially the same reasons discussed above with respect to his Title VII
discrimination claim, Block has not alleged facts supporting a plausible inference that any adverse
employment action (most notably, his 2022 administrative leave) was motivated in whole or in
part by his membership any protected class. His FEHA discrimination claim is therefore
DISMISSED with leave to amend.
For substantially the same reasons discussed above with respect to his Title VII harassment
theory, Block has not alleged harassment based on sex that either fell within the statute of
limitations or was “sufficiently severe or pervasive to alter the conditions of [his] employment and
create an abusive work environment.” See Lyle v. Warner Bros. Television Prods., 38 Cal. 4th
264, 279 (2006) (“California courts have adopted the [Title VII] standard for hostile work
environment . . . harassment claims under the FEHA.”). The same is true of harassment based on
age: Block alleges only that two students called him “old ass mother fucker” and “old ass man.”
FAC ¶¶ 92, 94, 100. He has not explained how those comments—by students, rather than
supervisors or coworkers—were so severe or pervasive as to alter the conditions of his
employment. Cf. Fried v. Wynn Las Vegas, LLC, 18 F.4th 643, 648–49 (9th Cir. 2021) (holding
three sexist comments by a manager and coworkers insufficiently severe and pervasive to support
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a claim, and citing authority reaching the same conclusion even with respect to more offensive
harassment). Though not entirely clear from Block’s First Amended Complaint, those incidents
also appear to have occurred before the 2020 COVID-19 pandemic, and thus more than three years
before Block’s March 31, 2023 administrative charge. See id. ¶ 109 (later alleging an incident
“During COVID”); ECF No. 1 at 34–35 (administrative complaint).13 There is no allegation that
other age-based harassment occurred during the statute of limitations.
Defendants do not address Block’s FEHA harassment claim to the extent that he asserts
harassment based on race, ancestry, or color. This claim may proceed on those theories, but is
DISMISSED with leave to amend to the extent that it is based on sex and age.
Defendants also move to dismiss Block’s “FEHA failure to prevent discrimination and
failure to prevent harassment based on sex or age,” ECF No. 14 at 8, though they do not address
that claim separately from the underlying discrimination and harassment claims in their
arguments. FEHA’s failure-to-prevent provision, Cal. Gov’t Code § 12940(k), requires, among
other elements, that “such discrimination or harassment actually occurred.” See, e.g., Achal v.
Gate Gourmet, Inc., 114 F. Supp. 3d 781, 804 (N.D. Cal. 2015) (quoting Trujillo v. N. Cnty.
Transit Dist., 63 Cal.App.4th 280, 289 (1998). Accordingly, Block’s failure-to-prevent claim is
DISMISSED with leave to amend to the extent it rests on underlying theories of discrimination
and harassment dismissed above. If Block does not further amend his complaint, his failure-to-
prevent claim shall proceed only to the extent that it is based on theories of harassment on account
of race, ancestry, and color.
Defendants do not address Block’s FEHA retaliation claim, which may proceed.
C. Defamation and Self-Publication
Defendants move to dismiss Block’s claims for defamation and self-publication. ECF No.
11 at 17–19. Under California law, the “elements of a defamation claim are (1) a publication that
is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes
13 Block’s administrative complaint appears to allege only racial harassment and retaliation. ECF
No. 1 at 34–35. Defendants have not moved to dismiss any claim as outside the scope of the
administrative charge, and the Court declines to address that issue sua sponte.
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special damage.” Laker v. Bd. of Trs. of Cal. State Univ., 32 Cal. App. 5th 745, 763 (2019).
The doctrine of self-publication is an exception to the usual rule that publication of a
defamatory statement must be done by the defendant. Tilkey v. Allstate Ins. Co., 56 Cal. App. 5th
521, 541 (2020). “For the exception to apply, the defamed party must operate under a strong
compulsion to republish the defamatory statement, and the circumstances creating the compulsion
must be known to the originator of the statement at the time he or she makes it to the defamed
individual.” Id. at 541–42.
Defendants argue that these claims should be dismissed for failure to identify a specific
statutory basis to impose liability on a government entity. ECF No. 11 at 17 (citing Searcy v.
Hemet Unified Sch. Dist., 177 Cal. App. 3d 792, 802 (1986); Lopez v. S. Cal. Rapid Transit Dist.,
40 Cal. 3d 780, 795 (1985)). Block does not address that argument. ECF No. 14 at 22–23.
Section 815 of the California Government Code requires that public entities may only be held
liable under state law as provided by statute, but section 815.2(a) of the Government Code makes
public entities vicariously liable for their employees’ conduct (within the scope of employment) to
the same extent as the employees themselves, and section 820(a) provides that public employees
are generally liable to the same extent as private persons. Under that statutory framework, a
public entity would generally be liable for defamation by its employees within the scope of their
employment. Defendants contend that California caselaw requires pleading the statutory basis for
liability specifically, but state law does not govern the pleading standard in federal court. “The
Federal Rules of Civil Procedure ‘do not countenance dismissal of a complaint for imperfect
statement of the legal theory supporting the claim asserted’ so long as the complaint includes
sufficient factual allegations to support a plausible claim.” Cook v. City of Fremont, No. 20-cv-
02704-JCS, 2020 WL 6318712, at *10 (N.D. Cal. Oct. 28, 2020) (declining to dismiss a
negligence claim against a government entity for failure to allege a statutory basis for liability)
(quoting Johnson v. City of Shelby, 574 U.S. 10, 10–11 (2014)). The Court therefore declines to
dismiss this claim under section 815 of the Government Code.
Defendants move to dismiss Block’s defamation and self-publication claims as untimely.
Again, Block ignores that argument entirely in his opposition brief. ECF No. 14 at 22–23. The
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statute of limitations for a defamation claim under California law is one year from publication of a
false statement. Shively v. Bozanich, 31 Cal. 4th 1230, 1246 (2003); Cal. Civ. Proc. Code
§ 340(c). Because self-publication is merely an exception to a usual limitation on defamation
claims, it is (if anything) a type of defamation claim, and the same limitations period applies.
Block filed this action on September 25, 2024. ECF No. 1 (Notice of Removal), ¶ 1. To the
extent his defamation and self-publication claims are based on statements earlier than September
25, 2023, they are DISMISSED as untimely. Because it is at least conceivable that Block might
be able to allege some basis for tolling the statute of limitations, such dismissal is with leave to
amend.
The only statement after that date that Block identifies as purportedly defamatory is
Bealby’s April 2024 letter “stating that the alleged wrongdoing in 2007 occurred and indicat[ing]
new evidence supported the finding.” FAC ¶ 149. As Block appears to acknowledge, however,
statements made in the course of “a public entity’s internal investigation” are protected by
California’s “absolute litigation privilege” as part of an “official proceeding.” Laker v. Bd. of Trs.
of Cal. State Univ., 32 Cal. App. 5th 745, 770, (2019); see ECF No. 14 at 23 (Block’s opposition
brief, block-quoting a practice guide discussing Laker for this principle). The District therefore
cannot be held liable under California law for Bealby’s letter stating the results of the District’s
investigation. To the extent that Block’s defamation and self-publication claims are based on that
letter—or any other statements in the course of the investigation—they are DISMISSED with
prejudice.
D. Section 1983
Section 1983 provides a cause of action against any person who, under color of state law,
deprives another person of “rights, privileges, or immunities secured by the Constitution and laws”
of the United States. 42 U.S.C. § 1983. The Supreme Court has established the doctrine of
qualified immunity as a defense to suit under § 1983, requiring a plaintiff to show that a
defendant’s conduct violated a right that “was clearly established at the time of the alleged
misconduct.” Gordon v. Cnty. of Orange, 6 F.4th 961, 968 (9th Cir. 2021). Block bases his
§ 1983 claim against Essien on purported violations of Block’s constitutional rights to due process
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and equal protection, as well as rights under Title VII. FAC ¶¶ 184–86.
As a starting point, though not addressed by the parties, “every circuit to consider this
exact question has held that, while a plaintiff may use § 1983 ‘as a vehicle for vindicating rights
independently conferred by the Constitution,’ Title VII . . . statutory rights cannot be vindicated
through § 1983.” Williams v. Penn. Hum. Rels. Comm’n, 870 F.3d 294, 300 (3d Cir. 2017)
(footnotes omitted); see also, e.g., Janvier v. City of Oakland, No. 22-cv-02330-SK, 2022 WL
14813900, at *5 (N.D. Cal. Oct. 25, 2022). “Allowing pure Title VII and ADA claims under
§ 1983 would thwart Congress’s carefully crafted administrative scheme by throwing open a back
door to the federal courthouse when the front door is purposefully fortified” by Title VII’s
requirement for administrative exhaustion and limitation of liability to “employers.” Williams,
870 F.3d at 299–99. To the extent Block’s § 1983 claim is based on violations of Title VII, it is
therefore DISMISSED with prejudice. Because the parties did not brief this issue, however, Block
may file a motion for reconsideration no later than two weeks from the date of this Order if he
believes the Court has wrongly applied Williams to dismiss this aspect of his § 1983 claim.
That leaves Block’s constitutional claims for violation of due process and equal protection.
Block’s First Amended Complaint offers little explanation of those claims beyond his assertion
that “Essien acted under color of state law and the authority of state law to repeatedly violate
[Block’s] federal constitutional rights to equal protection and due process of the law.” FAC ¶ 184.
“In order to state a [procedural due process] claim under the fourteenth amendment, the
complainant must allege facts showing not only that the State has deprived him of a liberty or
property interest but also that the State has done so without due process of law.” Gearhart v.
Thorne, 768 F.2d 1072, 1073 (9th Cir. 1985). “[O]nce a court determines that a protected property
interest has been taken, ‘the question remains what process is due,’” which “is more easily asked
than answered.” Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 983 (9th
Cir. 1998) (citation omitted).
The Fourteenth Amendment also protects certain interests in substantive due process, but
“most courts have rejected the claim that substantive due process protects the right to a particular
public employment position.” Engquist v. Or. Dep’t of Agric., 478 F.3d 985, 996–97 (9th Cir.
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2007), aff’d, 553 U.S. 591 (2008). Even if such a right might exist, Essien would therefore “be
shielded from such [a] claim[] by the doctrine of qualified immunity . . . because the conduct
alleged would not violate a ‘clearly established’ constitutional right.” Garrett v. Governing Bd. of
Oakland Unified Sch. Dist., 583 F. Supp. 3d 1267, 1280 (N.D. Cal. 2022). Substantive due
process may protect a public employee from a “government blacklist” or similar action that wholly
prevents them from pursuing their chosen profession, as opposed to merely a specific job.
Engquist, 478 F.3d at 997–98. Notwithstanding Block’s conclusory assertion in his opposition
brief that he “has been effectively ‘blacklisted,’” ECF No. 14 at 24, no allegations in the First
Amended Complaint indicate that Essien prevented Block from working as a security guard for
other employers.
“The central inquiry in an Equal Protection Clause claim is whether a government action
was motivated by a discriminatory purpose.” Ballou v. McElvain, 29 F.4th 413, 422 (9th Cir.
2022). Such a claim may be based on discrimination against a protected class. See id. In some
contexts, it may also be based on a “‘class of one,’ where the plaintiff alleges that she has been
intentionally treated differently from others similarly situated and that there is no rational basis for
the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Both
parties devote arguments to that theory. ECF No. 11 at 22–23 (citing Vill. of Willowbrook, 528
U.S. 562); ECF No. 14 at 24 (citing N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th
Cir. 2008)). Both overlook that the Supreme Court has squarely held “that the class-of-one theory
of equal protection does not apply in the public employment context.” Engquist, 553 U.S. 591 at
598 (emphasis added).
Block asserts his § 1983 claim only against Essien. FAC ¶¶ 180–87. “Liability under
section 1983 arises only upon a showing of personal participation by the defendant.” Taylor v.
List, 880 F.2d 1040, 1045 (9th Cir. 1989). In his opposition brief, Block cites his placement on
administrative leave and his instruction to stay away from MLK Middle School as supporting his
constitutional claims. ECF No. 14 at 24. But Block alleged that Phung placed him on leave and
instructed him to stay away—not Essien. FAC ¶ 140. He also refers vaguely to a lack of support
from Essien, purported retaliation, an alleged admission that Block “was not being treated right,”
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and Essien’s failure to address Block’s complaints sufficiently, but does not meaningful connect
those allegations to the constitutional frameworks of due process or equal protection. ECF No. 14
at 24. It is thus not clear from either the First Amended Complaint or Block’s opposition brief
what conduct by Essien purportedly violated Block’s rights to equal protection or due process,
much less any such conduct that violated clearly established law.14
Block’s § 1983 claim is therefore DISMISSED with leave to amend, except that Block
may not amend this claim to reassert a § 1983 claim based on violations of Title VII.
E. Motion to Strike Factual Allegations
Defendants move to strike paragraphs 21 through 48, 50 through 56, 98, and 120 through
122 of the First Amended Complaint as irrelevant. According to Defendants, many of those
allegations describe events falling outside the statute of limitations and lack a sufficient
connection to any timely claim to be relevant under a theory of continuing violation. ECF No. 11
at 24–26; ECF No. 18 at 12–13. Defendants concede, however, that some older allegations, such
as those regarding accusations of misconduct in 2007, are sufficiently related to subsequent events
not to warrant a motion to strike. ECF No. 11 at 25 n.6. Block argues that the “litany of
employment abuses he has suffered going back to 2007 . . . are all fair game because they are part
of a continuing violation.” ECF No. 14 at 25.
The only federal case Defendants cite for striking allegations predating a statute of
limitations involved different circumstances from the case at hand. See ECF No. 11 at 24 (citing
McCauley v. Stanford Univ. Med. Ctr., No. C07-01784 JF (HRL), 2007 WL 2070326 (N.D. Cal.
July 17, 2007)); cf. id. at 25; ECF No. 18 at 12–13 (citing only California appellate authority
addressing the scope of the continuing violation doctrine). In that case, the court determined that
the plaintiff’s judicial complaint was untimely with respect to her first administrative charge,
which included the conduct at issue. McCauley, 2007 WL 2070326, at *2. The scope of the
14 If Block amends to pursue this claim, he should also be prepared to address whether the conduct
at issue falls within the applicable two-year statute of limitations, an issue not briefed by either
party on the present Motion. See, e.g., Pumphrey v. Battles, No. 21-cv-09005-JSC, 2023 WL
1769185, at *1 (N.D. Cal. Feb. 3, 2023) (citing Butler v. Nat’l Cmty. Renaissance of Cal., 766
F.3d 1191, 1198 (9th Cir. 2014)) (discussing the applicable statute of limitations for a § 1983
claim, as borrowed from California law).
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plaintiff’s civil action was therefore limited to a second administrative charge, which “specifically
indicated in the designated box that the earliest date of discrimination was May 12, 2004” and did
not encompass a theory of “continuing action.” Id. at *3. The court therefore struck allegations
predating that date. Id.
McCauley indicates that a motion to strike may be appropriate where it is legally
impossible for a plaintiff to rely on allegations of conduct preceding a particular date. It does not
stand for a rule that allegations predating a statute of limitations should be stricken unless a
plaintiff alleges facts demonstrating conclusively their relevance. That said, where a plaintiff fails
to identify even potential relevance of an allegation, a court can reasonably conclude that it is
“immaterial” or “impertinent.” See Fed. R. Civ. P. 12(f).
As discussed above, Defendants have not moved to dismiss Block’s claims for retaliation
and for harassment based on race, ancestry, and color under Title VII and FEHA. Allegations that
Block reported discrimination (even outside the statute of limitations) may be relevant to his
claims that he later faced retaliation, and allegations that he experienced harassment based on race
(even outside the statute of limitations) may be relevant to his harassment claims under a
continuing violation theory. That is not to say that all such allegations will ultimately prove
relevant, that they could support viable claims in themselves, or that Block has alleged sufficient
connections between them and his timely claims to render them actionable despite the statute of
limitations. This Order should not be construed as resolving the substantive scope of the
continuing violation doctrine. But taking into account the general “disfavor” towards motions to
strike and “the limited importance of pleading in federal practice,” the Court declines to strike
allegations that overtly relate to the topics of racial harassment and reports of discrimination,
which Block might (or might not) ultimately be able to connect to his surviving claims at a later
stage of the case. See Mag Instrument, 595 F. Supp. 2d at 1106.
Applying those principles, Defendants’ Motion to Strike is DENIED as to paragraphs 41
through 48 of the First Amended Complaint, which relate to an alleged incident and report of
racial harassment. The Motion is GRANTED as to paragraphs 21 through 40, 50 through 56, 98,
and 120 through 122, which are hereby stricken. Those paragraphs do not overtly allege protected
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conduct for the purpose of Block’s retaliation claims or harassment based on race, and Block’s
opposition brief does not specifically explain their relevance. See ECF No. 14 at 25–26. This
Order is without prejudice to Block reasserting the stricken allegations in an amended complaint if
he can allege a connection between them and any timely claim. If Block does not amend,
however, Defendants need not respond to the stricken allegations in their answer.
F. Motion to Strike Prayers for Relief
The remainder of Defendants’ Motion to Strike targets two of the remedies sought in
Block’s Complaint: punitive damages and injunctive relief. ECF No. 11 at 26–28. Though not
addressed by any party here,15 this Court has previously summarily denied a motion to strike
particular remedies in Well v. County of Alameda—there, attorneys’ fees and injunctive relief.
Well, No. 25-cv-01894-LJC, 2025 WL 1223553. (N.D. Cal. Apr. 28, 2025). The Court relied
primarily on the Ninth Circuit’s holding in Whittlestone “that Rule 12(f) of the Federal Rules of
Civil Procedure does not authorize a district court to dismiss a claim for damages on the basis it is
precluded as a matter of law.” Whittlestone, 618 F.3d at 976.
Whittlestone addressed a motion to strike a plaintiff’s request for lost profits and
consequential damages as precluded by law. Id. at 973. The Ninth Circuit compared such relief to
the categories specified in Rule 12(f), and determined Plaintiffs requests for remedies were not
“insufficient defenses,” “redundant,” “immaterial,” “impertinent,” or “scandalous,” even if they
might be precluded by law. Id. at 974. The Ninth Circuit also noted that the standard for review
on appeal differs between motions to strike (which are reviewed for abuse of discretion) and
motions to dismiss (which are reviewed de novo), suggesting that motions to strike are not
properly directed to substantively limit a plaintiff’s claims. Id. The Ninth Circuit therefore
reversed the district court’s order granting the motion to strike without reaching the question of
whether the remedies at issue were available to the plaintiff—except in a footnote discussing the
outcome “[e]ven if [the panel] were to examine the district court’s actions under Rule 12(b)(6).”
See id. at 975 n.2. Whittlestone therefore bars Defendants’ Motion to Strike Block’s requests for
15 The Court notes that Defendants in this case are represented by the same law firm as the
defendant in Well, though not by the same specific attorneys.
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remedies.
Even if that were not so, questions of whether Essien’s conduct might support punitive
damages, or whether any form of injunctive relief is warranted, “raise issues better addressed at a
later stage of the case.” Well, 2025 WL 1223553, at *1 (noting that, like here, the defendant’s
“arguments regarding injunctive relief involve[d] questions of the potential for irreparable injury,
the sufficiency of money damages, and the ‘proper balance between state and federal authorities,’
which are difficult to evaluate at the beginning of a case and without a factual record” (citation
omitted)). The Court notes the parties’ agreement that Block cannot recover punitive damages
against the District, but does not discern any practical value that would result from memorializing
that agreement by striking any portion of the First Amended Complaint. Accordingly, even if
Ninth Circuit precedent did not require the Court to deny Defendants’ Motion to Strike with
respect to particular remedies, the Court would reach the same result as a matter of discretion.
“To be clear, the Court does not hold that [Block] can or will recover any [punitive
damages] or obtain any injunctive relief. The Court holds only that [Defendants have] not met
[their] burden to show that those requests should be stricken under Rule 12(f) at this early stage of
the case.” See Well, 2025 WL 1223553, at *2.
V. CONCLUSION
For the reasons discussed above, Defendants’ Motion is GRANTED in part and DENIED
in part. Defendants did not move to dismiss Block’s claims for retaliation and for harassment
based on race, ancestry, and color under Title VII and FEHA, so those claims shall proceed.
Block’s failure-to-prevent-harassment claim under FEHA may shall also proceed to the extent that
it rests on harassment based on race, ancestry, or color. All other claims are DISMISSED. Such
dismissal is with leave to amend, except that: (1) Block cannot pursue a defamation or self-
publication claim based on Stephanie Bealby’s 2024 letter or any other statements made in the
course of the District’s internal investigation; and (2) Block cannot pursue a § 1983 claim based
on violations of Title VII, unless he first seeks and obtains reconsideration of the relevant portion
of this Order.
Paragraphs 21 through 40, 50 through 56, 98, and 120 through 122 of the First Amended
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Complaint are STRICKEN as immaterial and impertinent, with leave to amend.
If Block wishes to pursue any of the dismissed claims or stricken allegations, he may file a
second amended complaint no later than January 20, 2026.
A further case management conference shall occur by videoconference on February 26,
2026 at 1:30 PM. The parties shall file an updated joint case management statement no later than
February 19, 2026.
IT IS SO ORDERED.
Dated: December 29, 2025
LISA J. CISNEROS
United States Magistrate Judge
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