ERICA P. GROSJEAN, Magistrate Judge.
In his Complaint, teacher Mark Duffy ("Plaintiff") claims he suffered retaliation from Defendants, the Los Banos Unified School District, its superintendent, and the principal and vice principals of Los Banos High School, for speaking out against the superintendent at a community meeting held by the school board. Defendants moved to dismiss on the bases of sovereign immunity and qualified immunity. While Defendants are correct that the school district is protected by sovereign immunity, they are not correct when it comes to the individuals who allegedly retaliated against Plaintiff for his speech at the public meeting.
Contrary to Defendants' argument, the law governing the school officials' conduct is clearly established. As the U.S. Supreme Court held in Pickering v. Board of Education, 391 U.S. 563, 572 (1968), "[t]eachers are, as a class, the members of a community most likely to have informed and definite opinions . . . [I]t is essential that they be able to speak out freely on such questions without fear of retaliat[ion]." The Ninth Circuit has, consequently, repeatedly reaffirmed "the importance of allowing teachers to speak out on school matters." Settlegoode v. Portland Pub. Schs., 371 F.3d 503, 514 (9th Cir. 2004); see also Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009). While it remains to be seen if Plaintiff can prove his allegations and whether Defendants have any valid defense, there is no question that Plaintiff has alleged of violation of his First Amendment right to free speech.
This case arises out of statements Plaintiff made at a school board meeting in 2012. According to the Complaint, Plaintiff has been employed as an English teacher at Los Banos High School in Los Banos, California for nine years. Before the 2012 meeting, Plaintiff received positive performance reviews and his students demonstrated success in objective testing metrics. He also received "Teacher of the Year" awards from the student body for six out of his first seven years as a teacher at the high school. Plaintiff suffered a heart attack in 2008, but returned to work with a rest period accommodation.
In 2007, Defendant Steve Tietjen became superintendent of the Los Banos Unified School District (the "School District"). Tietjen was perceived as a "poor administrator and Machiavellian who bullied and divided staff." (Complaint ¶ 11, ECF No. 2.) Tietjen also had a reputation for retaliating against those who opposed him by firing, demoting, or transferring teachers who raised objections to his decisions.
In August 2012, Tietjen announced that he would be transferring Daniel Martin, the principal of Los Banos High School. Martin, who had been a popular principal at the high school for six years, had expressed opposition to Tietjen and was to be transferred to an administrative position at the "school bus barn." Id. at ¶ 12. This transfer was perceived as a demotion; the high school position was viewed as a significantly more prestigious post.
The transfer raised concerns within the community to the point that a community meeting was convened. The meeting, which was overseen by the Board of the School District, was held on August 9, 2012. Many members of the general public, as well as school district employees and students, were present at the meeting. The meeting was also televised on the local public access channel.
Plaintiff delivered a speech at the meeting criticizing Tietjen in which he stated that:
Id. at ¶ 14. Tietjen was displeased with Plaintiff's statements.
After the meeting, Defendants engaged in a pattern of conduct designed to intimidate and harass Plaintiff.
In September 2013, Plaintiff suffered a second heart attack. In response, Tietjen launched an investigation to determine whether Plaintiff had faked his heart attack. As part of that investigation, he sent a school nurse to the emergency room to confirm that Plaintiff had been admitted.
Plaintiff received written reprimands shortly thereafter and was accused of "trying to intimidate" Defendants Sutton and Gurgen multiple times over the next two months. Defendant Hartsoch also claimed that Plaintiff "harassed and followed" him over the Thanksgiving holiday in November 2013, although Plaintiff was out of town. In December 2013, Plaintiff received a 15 day unpaid suspension.
On June 30, 2014, Defendants filed a petition for a workplace violence restraining order seeking protection for Defendant Hartsoch and his family. A temporary restraining order was granted on July 1, 2014 and Defendants served Plaintiff with a notice of unprofessional conduct on July 11, 2014. The notice advised Plaintiff that his employment would be terminated if his conduct did not improve in the next 45 days.
On October 9, 2014, Defendants informed Plaintiff that he would be administratively terminated effective October 22, 2014 for exhausting his family medical leave. On October 17, 2014, Plaintiff was placed on paid administrative leave and was prohibited from contacting any School District employees, students, or parents of students. On October 31, 2014, the School District contacted Plaintiff and informed him that he would be required to sit for an interview on November 6, 2014 as part of an investigation into his "misconduct." Plaintiff refused.
On November 8, 2014, Tietjen claimed in local media outlets that Plaintiff had sent harassing letters to Tietjen's wife. Plaintiff alleges that this was done to influence the outcome of elections to the Los Banos Unified School District Board, whose support Tietjen relied upon for his position. On November 28, 2014, Defendants informed Plaintiff that his employment would be terminated based on their investigation. Defendants once again informed local media. Plaintiff contends that the "misconduct" alleged in the termination notice is wholly fabricated. Defendants served Plaintiff with a second notice of intended termination on December 19, 2014.
Plaintiff now alleges three causes of action against Defendants:
On May 19, 2015, Defendants Los Banos Unified School District, Steve Tietjen, Ryan Hartsoch, Daniel Sutton, and Veli Gurgen ("Defendants") filed a Motion to Dismiss Plaintiffs' Complaint pursuant to Federal Rules of Civil Procedure 12 (b)(1) and 12(b)(6) (the "Motion"). (ECF No. 15.) Plaintiff Mark Duffy filed a timely opposition to the Motion.
The Court has reviewed the papers and determined that this matter is suitable for decision without oral argument pursuant to Local Rule 230(g).
After a review of the pleadings and the for the reasons set forth below, Defendants' Motion is GRANTED IN PART and DENIED IN PART.
Defendants state that the Motion is brought under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6) and the Motion provides the legal standard for a motion to dismiss based on a factual challenge under Federal Rule of Civil Procedure 12(b)(1), but the issues raised by the Motion—sovereign immunity and qualified immunity—are properly brought under Rule 12(b)(1) and Rule 12(b)(6), respectively. Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015); Jensen v. City of Oxnard, 145 F.3d 1078, 1082 (9th Cir. 1998). Because Defendants' 12(b)(1) Motion is a facial challenge to the Court's subject matter jurisdiction, rather than a factual challenge, the Court applies the 12(b)(6) legal standard. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014) ("The district court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6): Accepting the plaintiff's allegations as true and drawing all reasonable inferences in the plaintiff's favor, the court determines whether the allegations are sufficient as a legal matter to invoke the court's jurisdiction").
To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must plead "only enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This "plausibility standard," however, "asks for more than a sheer possibility that a defendant has acted unlawfully," and "[w]here a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line between possibility and plausibility of entitlement to relief.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court must "accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899-900 (9th Cir. 2007). Legally conclusory statements, when unsupported by actual factual allegations, need not be accepted. Ashcroft, 556 U.S. at 678-79.
Defendants assert that portions of the Complaint should be dismissed on two grounds. First, they argue that both of Plaintiff's § 1983 claims (the first two causes of action) are barred by sovereign immunity created by the Eleventh Amendment to the U.S. Constitution. Second, they claim that Defendants Tietjen, Hartsoch, Sutton, and Gurgen should be protected by qualified immunity because Plaintiff did not enjoy a right "to be free from increased supervision and possible termination after making shocking public statements likening the school superintendent to Adolf Hitler." (Motion to Dismiss 6:11-12, ECF No. 16.)
The Eleventh Amendment "prohibits actions for damages against state agencies when Congress has failed to express a contrary intent." Belanger v. Madera Unified Sch. Dist., 963 F.2d 248, 250 (9th Cir. 1992), citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985). In California, school districts are "state agencies" within the definition of the Eleventh Amendment. Id. at 254. This bar does not, however, apply to "suits to impose `individual and personal liability' on state officials under § 1983." Hafer v. Melo, 502 U.S. 21, 31 (1991). Nor does it apply to suits for prospective declaratory and injunctive relief against state officials sued in their official capacities. Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1045 (9th Cir. 2000) ("courts have recognized an exception to the Eleventh Amendment bar for suits for prospective declaratory and injunctive relief against state officers, sued in their official capacities, to enjoin an alleged ongoing violation of federal law").
Plaintiff concedes that the School District "is a state agency for purposes of retrospective damages suits" and acknowledges that the damage claim against the School District "is now subject to dismissal." (Opposition to Motion to Dismiss ¶5, ECF No. 23.) Plaintiff's Second Cause of Action, a Monell claim for compensatory damages against the School District, must thus be dismissed.
Defendants are incorrect, however, that Plaintiff's First Cause of Action, alleging First Amendment retaliation, should be similarly barred. The Eleventh Amendment does not bar actions against state officials sued in their individual capacities. Hafer, 502 U.S. at 31. Each of the targets of the First Cause of Action—Tietjen, Hartsoch, Sutton, and Gurgen—is being sued in their individual capacities. (Complaint ¶¶ 5-8, ECF No. 2.) Plaintiff's First Cause of Action may thus proceed, even in the face of the School District's sovereign immunity.
Defendants next argue that Plaintiff's First Cause of Action is barred because the individual Defendants are protected by qualified immunity. A public official acting within the scope of her employment receives qualified immunity unless her conduct violates "clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Fogel v. Collins, 531 F.3d 824, 829 (9th Cir. 2008). If such an official receives qualified immunity, she is afforded absolute immunity from a law suit challenging those actions. See Saucier v. Katz, 533 U.S. 194, 200-201 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223, 242 (2009) (qualified immunity affords "an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial") (emphasis in original). The central intent behind qualified immunity is to provide "ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986).
To determine whether an official is protected by qualified immunity, courts must ask: (1) whether "the facts the plaintiff alleges show a violation of a constitutional right"; and, (2) whether that right was "`clearly established' at the time of the alleged misconduct." Carillo v. Cnty. of Los Angeles, 798 F.3d 1210, 1218 (9th Cir. 2015), citing City & Cnty. of San Francisco v. Sheehan, ___ U.S. ___, 135 S.Ct. 1765, 1774 (2015) ("An officer cannot be said to have violated a clearly established right unless the right's contours were sufficiently definite that any reasonable official in his shoes would have understood that he was violating it, meaning that existing precedent placed the statutory or constitutional question beyond debate"). If the public official violated a clearly established constitutional right, she does not receive qualified immunity for her actions.
The First Amendment embodies a "profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), citing Whitney v. California, 274 U.S. 357, 375-376 (1927) ("Those who won our independence believed . . . that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones").
The U.S. Supreme Court long ago established that teachers enjoy the First Amendment right to "comment on matters of public interest in connection with the operation of the public schools in which they work." Pickering v. Bd. of Ed. of Twp. High Sch. Dist., 391 U.S. 563, 568 (1968). The Ninth Circuit Court of Appeals has repeatedly agreed with this application of the First Amendment to educators. Settlegoode v. Portland Pub. Schs., 371 F.3d 503, 514 (9th Cir. 2004) ("We have long recognized `the importance of allowing teachers to speak out on school matters,' because `[t]eachers are, as a class, the members of a community most likely to have informed and definite opinions' on such matters"); Lambert v. Richard, 59 F.3d 134 (9th Cir. 1995) (fact that library supervisor "treated employees in an abusive and intimidating manner" implicated employee's "Constitutional right—and perhaps a civic duty" to give speech criticizing supervisor in public forum); see also Eng v. Cooley, 552 F.3d 1062, 1075 (9th Cir. 2009) ("There could be no confusion, however, that when Eng `comment[ed] upon matters of public concern' `as a citizen' and not pursuant to his job responsibilities, his speech was protected by the First Amendment—that rule had long been the law of the land") (emphasis in original).
Defendants contend that there is no clearly established right to "be free from increased supervision and possible termination after making shocking public statements likening the school superintendent to Adolf Hitler." (Motion to Dismiss 6:11-12, ECF No. 16.) But such a framing of Plaintiff's allegations is misleading and does not address the underlying issue. Case law expressly protects the First Amendment rights of educators to criticize their superiors, particularly when it occurs at the appropriate time and place (i.e., a public school board meeting). Lewis v. Harrison Sch. Dist. No. 1, 805 F.2d 310, 316 (8th Cir. 1986) ("The public and all teachers had a right to be informed over these events. Speech is not unprotected under the Constitution just because it is critical, even when its criticism is bluntly worded and directed at specific governmental officials").
Defendants also cite a number of cases for the proposition that employers do not violate educators' First Amendment rights by disciplining them for racist or anti-Semitic comments made in public. (Motion to Dismiss 7:12-8:3, ECF No. 16, citing Jeffries v. Harleston, 52 F.3d 9 (2d Cir. 1994); Locurto v. Giuliani, 447 F.3d 159, 183 (2d Cir. 2006); Pappas v. Giuliani, 290 F.3d 143, 145 (2d Cir. 2002).) But there is a distinction between invidiously discriminatory comments directed at an entire ethnic or religious group and critical comments directed at the management style of a particular individual. Even if there is no clearly established right to make the former, the latter falls within the realm of First Amendment protection. Settlegoode v. Portland Pub. Schs., 371 F.3d 503, 514 (9th Cir. 2004), citing Connick v. Myers, 461 U.S. 138, 162 (1983).
Plaintiff has also adequately alleged a violation of his First Amendment rights. To find a claim for a violation of First Amendment rights under a theory of retaliation, the Court must examine: "(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiff's protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech." Dahlia v. Rodriguez, 735 F.3d 1060, 1067 (9th Cir. 2013); see also Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003) (reformulating the elements to say that "an employee must show (1) that he or she engaged in protected speech; (2) that the employer took `adverse employment action'; and (3) that his or her speech was a `substantial or motivating' factor of the adverse employment action").
Some of these factors may rely on questions of fact that have not yet been resolved or explored at this stage in the litigation. In particular, (4) and (5) will turn on evidence put forward by Defendants. Because Defendants have chosen to assert qualified immunity in a motion to dismiss under Rule 12(b)(6), however, the Court must construe all factual allegations as true and in favor of Plaintiff. There are inadequate facts in the Complaint to suggest either that: (1) Defendants had a legitimate, non-retaliatory reason for subjecting Plaintiff to adverse employment actions; or (2) Defendants had an adequate (and legitimate) justification for treating Plaintiff differently from other members of the public. As a result, the Court will only consider the first three factors in deciding whether a constitutional violation has occurred.
Here, Plaintiff has adequately alleged that he spoke on a topic of public concern at the August 2012 school board meeting, which was convened for the purpose of public comment. Comments by educators about "whether students are receiving the type of attention and education that they deserve" are of public importance. Settlegoode, 371 F.3d at 514 ("Whether or not Settlegoode's assertions were accurate, or were communicated in the best manner possible, it is clear that the subject matter of her expression was of public importance"). Even comments critical of school personnel decisions or criticizing school leadership are matters of public concern. Lewis, 805 F.2d at 314 ("The superintendent of schools was proposing to transfer a teacher and varsity coach. Because teachers and coaches in a public school district can deeply impact children's lives, school personnel assignments obviously are of considerable concern to those children, their parents, and others in the community"); Wasson v. Sonoma Cnty. Jr. Coll. Dist., 4 F.Supp.2d 893, 904 (N.D. Cal. 1997) ("The letters for which Wasson was disciplined comment upon Agrella's fitness to be president of the college, a matter that is clearly of public concern"). Here Plaintiff alleges that his comments occurred at a public community meeting convened by the school board to discuss the impending transfer of an "extremely popular and effective principal" from Los Banos High School. (Complaint ¶ 12, ECF No. 2.) Because the transfer—and Tietjen, the individual responsible for the transfer—were subjects of public concern, the Court sees little reason that Plaintiff's comments on those topics should be considered otherwise.
Similarly, the facts alleged indicate that Plaintiff was speaking in his capacity as a private citizen, rather than as a public employee, at the August 2012 meeting. No facts in the Complaint indicate that Plaintiff was required to appear at the meeting, which was open to the general public, as part of his job duties, nor was he ever instructed by any supervisors to appear at the meeting. Moreover, the allegations that Plaintiff was harassed by his supervisors after his speech strongly suggest that his speech was not in the fulfillment of his job duties. Dahlia, 735 F.3d at 1075 ("the fact that an employee is threatened or harassed by his superiors for engaging in a particular type of speech provides strong evidence that the act of speech was not, as a `practical' matter, within the employee's job duties"), citing Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
The allegations in the Complaint are also adequate to conclude that Plaintiff suffered adverse employment actions and that his protected activity was a substantial or motivating factor in those actions. Plaintiff alleges that, among other things, he was reassigned to teach a less desirable course, placed on unpaid suspension, and served with multiple notices of his termination after his speech at the August 2012 meeting. Any of these would be sufficient to demonstrate that Plaintiff has suffered an adverse employment action. Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) ("the EEOC has consistently found `[r]etaliatory work assignments' to be a classic and `widely recognized' example of `forbidden retaliation'"); Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1196 (9th Cir. 2003) (teacher "suffered an adverse employment action when the District issued its disciplinary suspension"); Coszalter v. City of Salem, 320 F.3d 968, 976-977 (9th Cir. 2003) (adopting EEOC guidelines to define "adverse employment action" and applying those guidelines to find that "some, perhaps all, of the following acts, considered individually, were adverse employment actions for purposes of plaintiffs' First Amendment retaliation suit: the transfer to new duties (# 2); an unwarranted disciplinary investigation (# 4); an unwarranted assignment of blame (# 6); a reprimand containing a false accusation (# 8); a criminal investigation (# 15); repeated and ongoing verbal harassment and humiliation (# 15); the circulation of a petition at the encouragement of management (# 16); a ten-day suspension from work (# 17); a threat of disciplinary action (# 20); an unpleasant work assignment (# 21); a withholding of customary public recognition (# 26); an unwarranted disciplinary action (# 30); and two consecutive ninety-day "special" reviews of work quality (# 29 and # 31)").
Finally, Plaintiff has adequately alleged that his protected speech was a substantial or motivating factor in the adverse employment actions. Prevailing case law has held that plaintiffs may "show that retaliation was a substantial or motivating factor behind a defendant's adverse employment actions" by, among other things: (1) "introduc[ing] evidence regarding the `proximity in time between the protected action and the allegedly retaliatory employment decision'"; (2) "introduc[ing] evidence that `his employer expressed opposition to his speech"; or, (3) "introduc[ing] evidence that `his employer's proffered explanations for the adverse employment action were false and pre-textual.'" Coszalter, 320 F.3d at 977, quoting Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 751 (9th Cir. 2001). Plaintiff has alleged all three in the Complaint: the adverse employment actions began shortly following his speech at the August 2012 meeting, Defendant Tietjen was "visibly enraged" by Plaintiff's speech, and Defendants "trumped up allegations" of harassment against Plaintiff. (Complaint ¶¶ 15, 16, 17, ECF No. 2.) Indeed, rather than contest the allegations that the adverse employment actions were the result of Plaintiff's protected activity, Defendants argue that they should have retaliated even further against Plaintiff. (Motion to Dismiss 8:6-11 (". . . any reasonable school official would have every reason to believe that increasing supervision of a teacher who publicly likened school officials to Adolf Hitler and unabashedly stated discontent for school officials in a small town using `colorful and challenging' language on multiple occasions would not only be appropriate, but that more severe punishment, such as termination, was likely warranted"), ECF No. 16.)
Plaintiff has sufficiently alleged a violation of his First Amendment rights. Accepting all allegations as true, he has also demonstrated that his rights, as alleged, were clearly established and that Defendants are not entitled to qualified immunity. In at least one case, the Ninth Circuit Court of Appeals has found similarly. In Lambert v. Richard, 59 F.3d 134 (9th Cir. 1995), plaintiff was an employee of the public library system in Santa Ana, California. Plaintiff appeared at a local city council meeting and delivered a speech that was sharply critical of defendant, the Library Director who managed the public library system. In her speech, she told everyone present at the meeting that the library was "barely" functioning and that the employees at the library were performing their duties "devoid of zest, with leaden hearts and wooden hands," as a result of defendant's leadership. Id. at 136.
Shortly after plaintiff's speech, the defendant in Lambert issued a letter of reprimand to plaintiff. Plaintiff sued, alleging that her First Amendment rights had been violated and that she had been subjected to retaliatory treatment for her protected speech. In evaluating plaintiff's claims, the Ninth Circuit easily concluded that plaintiff's remarks were "clearly protected" and that defendant was "not entitled to qualified immunity." Id. at 137. Citing the public nature of the forum in which plaintiff gave the speech, the contents of her criticism, and the importance of the information she was providing to the public, the court held that a reasonable public official "would have recognized that [his] conduct was unlawful." Id.
The Court sees little reason to depart from the Lambert court's reasoning and finds that reasonable public officials in Defendants' positions would have recognized that the conduct alleged in the Complaint was unlawful. Defendants are not entitled to qualified immunity.
Defendants argue that Plaintiff's Third Cause of Action, requesting declaratory judgment, is predicated solely on Plaintiff's § 1983 claims. Because those claims are barred by sovereign and qualified immunity, Defendants assert, the Third Cause of Action must be dismissed, as well. As explained above, however, at least one of the § 1983 claims survives Defendants' qualified and sovereign immunity challenges. Moreover, even sovereign immunity, which applied to Plaintiff's Second Cause of Action, does not preclude a claim for declaratory judgment. Nat'l Audubon Soc., Inc. v. Davis, 307 F.3d 835, 847 (9th Cir. 2002) ("we have long held that the Eleventh Amendment does not generally bar declaratory judgment actions against state officers"). Plaintiff's Third Cause of Action thus survives the Motion to Dismiss.
For the reasons set forth above, the Court GRANTS IN PART and DENIES IN PART Defendants' Motion to Dismiss the Complaint (ECF No. 15). Accordingly, IT IS HEREBY ORDERED:
