SMITH, District Judge.
In this case we must consider the First Amendment rights of a speech and language therapist working as a state contractor.
Plaintiff Ellen H. Decotiis brought suit against Child Development Services-Cumberland County ("CDS-Cumberland"), Lori Whittemore individually and in her official capacity as Director of CDS-Cumberland, and Debra Hannigan in her official capacity as State Director of Child Development Services ("CDS") (collectively the "Defendants") pursuant to 42 U.S.C. § 1983. Decotiis alleges that she was retaliated against in violation of her First Amendment free speech rights for expressing her opinion to parents that CDS-Cumberland was not in compliance with state regulations and urging parents to contact advocacy organizations to address this problem. She seeks a declaration that the non-renewal of her CDS-Cumberland contract was a violation of her First Amendment rights, injunctive relief to reinstate her contract and to prevent future retaliation based on protected speech, and attorney's fees. She also seeks compensatory and punitive damages from Whittemore, and compensatory damages from CDS-Cumberland.
The district court dismissed the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On appeal Decotiis argues that the district court erred in holding that her speech was not protected by the First Amendment under the principle enunciated in Garcetti and in holding that Whittemore is entitled to qualified immunity. We affirm the district court's judgment dismissing the complaint against Whittemore, because she is entitled to qualified immunity in her individual capacity and the suit against Whittemore in her official capacity is redundant of the suit against CDS-Cumberland. However, we conclude that the complaint sufficiently alleges a constitutional violation, particularly in light of two holdings of this Court that came after the district court's ruling
On review of a grant of a motion to dismiss, we state the facts as set forth in the complaint, drawing all reasonable inferences in favor of the plaintiff, the nonmoving party. Cunningham v. Nat'l City Bank, 588 F.3d 49, 51 (1st Cir.2009).
CDS is a system of intermediate educational units
Decotiis is a speech and language therapist licensed by the state of Maine who over the previous eighteen years, and at the time of the events giving rise to this action, had contracts with various regional CDS sites to provide speech and language therapy and evaluations for children.
In May 2008, Chapter 101 of the Maine Unified Special Education Regulation ("Unified Rule 101") was adopted. Prior to its adoption, eligible children generally received services for the full calendar year, in accordance with their Individualized Family Service Plans ("IFSP") or Individualized Education Plans ("IEP"). Unified Rule 101, however, limited these services for children aged three to five years old to the school year (September through June). As a result, services were not provided to children over the summer unless they were deemed eligible for extended school year services ("ESY services"). In response to this new regulation, the state CDS adopted a policy offering ESY services as "the exception and not the rule." (Compl. ¶ 22.) That is, ESY services were to be provided only when a child's IEP team decided that the services were necessary to give the child a free and appropriate public education under IDEA. According to the complaint, Unified Rule 101 and CDS's new policy generated a stir; the CDS regional sites, service providers, and parents of children with disabilities throughout Maine were confused and concerned. This concern stemmed particularly from the absence of a clear procedure outlining the objective standards that would support eligibility determinations for ESY services.
In the spring of 2008, Decotiis was working under contracts with three regional CDS sites, including CDS-Cumberland, to provide speech and language services to children. It was around this time that Whittemore, case managers at CDS-Cumberland, and parents of children served by CDS-Cumberland informed Decotiis about CDS-Cumberland's approach to ESY-service determinations. Specifically, Decotiis
After learning about CDS-Cumberland's approach to ESY services, Decotiis approached Hannigan about the discrepancy between the practices of the different regional sites. Hannigan responded that she had no insight into these differences. Subsequently, Decotiis contacted two advocacy groups in Maine, which advised her that CDS-Cumberland did not appear to be in compliance with state and federal law.
Shortly thereafter, Decotiis "informed parents of children she was treating that she was confused and concerned about the criteria CDS-Cumberland was using for eligibility for [ESY] services and that parents should contact [advocacy organizations] for guidance concerning their rights under IDEA." (Id. ¶ 42.) She also posted a notice in her office with the names and telephone numbers of the advocacy organizations for the benefit of parents, because she believed that CDS-Cumberland had given parents the incorrect number for one of the organizations.
In a letter dated July 29, 2008, CDS-Cumberland informed Decotiis that her contract, due to expire on September 1, 2008, would not be renewed.
We review de novo the district court's dismissal under Rule 12(b)(6). Cook v. Gates, 528 F.3d 42, 48 (1st Cir. 2008). The Court is not "wedded to the lower court's rationale" and may affirm the district court's order of dismissal "on any ground made manifest by the record." Roman-Cancel v. United States, 613 F.3d 37, 41 (1st Cir.2010).
On a motion to dismiss, "we accept as true all well-pleaded facts in the complaint and draw all reasonable inferences in favor of the plaintiff[ ]." Gargano
Decotiis first argues on appeal that the district court erred in holding that she did not speak as a citizen. Though the question is a close one, we agree that the district court erred in so holding, particularly when we consider our recent decisions interpreting Garcetti. Viewing the facts set forth in the complaint in the light most favorable to Decotiis, we conclude that she has alleged facts that form the basis of a plausible constitutional violation for which relief may be granted.
We begin with some fundamentals. Government employees undoubtedly walk a tight rope when it comes to speaking out on issues that touch upon their fields of work and expertise. It is well settled that "as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions. . . for speaking out." Mercado-Berrios v. Cancel-Alegria, 611 F.3d 18, 25-26 (1st Cir.2010) (quoting Hartman v. Moore, 547 U.S. 250, 256, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006)) (internal quotation marks and citations omitted). This right is not absolute, however; while public employees do not forfeit all of their First Amendment rights by undertaking public employment, "in recognition of the government's interest in running an effective workplace, the protection that public employees enjoy against speech-based reprisals is qualified." Id. at 26.
To determine whether an adverse employment action
The Court must first determine whether the speech touched upon a matter of public concern.
In Garcetti, the Supreme Court held that public employees do not speak as citizens when they "make statements pursuant to their official duties," and that accordingly, such speech is not protected by the First Amendment. 547 U.S. at 421, 126 S.Ct. 1951. In Garcetti itself, there was no dispute about whether the speech in question had been made pursuant to the plaintiff's employment duties, and so the Court noted that it had "no occasion to articulate a comprehensive framework for defining the scope of an employee's duties in cases where there is room for serious debate." Id. at 424, 126 S.Ct. 1951. The Court did, however, provide some guidance as to how such a determination should be made. In describing speech made pursuant to employment duties, the Court included "speech that `owes its existence to a public employee's professional responsibilities', speech that the employer `has commissioned or created', speech that the employee `was paid to' make, speech that the employee's `duties . . . required him to' make, speech that amounts to the employee's `work product', and speech that is an `official communication[ ].'" Mercado-Berrios, 611 F.3d at 27 n. 9 (quoting Garcetti, 547 U.S. at 421-23, 126 S.Ct. 1951) (alteration and omission in original) (citations omitted).
At the time of the district court's order, this Court had not yet had occasion to consider the application of Garcetti, and particularly the question of what it means to speak "pursuant to" one's employment duties. We recently considered the application of Garcetti in two cases, Foley v. Town of Randolph, 598 F.3d 1 (1st Cir. 2010), and Mercado-Berrios, 611 F.3d 18, both of which inform the analysis.
In Mercado-Berrios, we again considered the character of public employee speech. Mercado-Berrios was a transitory employee of the Puerto Rico Tourism Company, a public corporation charged with "regulating, investigating, overseeing, intervening and imposing sanctions" on persons providing tourism-related ground transportation in Puerto Rico. 611 F.3d at 20. After she and her colleagues were told to "hold your horses" and cease issuing citations to certain luxury vehicles, Mercado-Berrios complained to three other employees, two shift supervisors and an attorney. Id. at 21. Shortly thereafter, she applied for a permanent position but was passed over. Id. at 21-22. On the heels of this rejection, she brought suit alleging retaliation. Id. at 22.
In Mercado-Berrios we emphasized the importance of the two-step, context-specific inquiry needed to determine whether speech is "made pursuant to the employee's official duties." Id. at 26. First, a court must ask, "what are the employee's official responsibilities?," and second, "was the speech at issue made pursuant to those responsibilities?" Id. After undertaking this two-part inquiry, we concluded that both sides had strong arguments and affirmed the district court's decision in Mercado-Berrios's favor because the defendant had failed to adequately brief the issue. Id. at 27-28.
The instant case presents what may be a not uncommon scenario: a public employee who is hired to perform certain specific functions believes her employer is not complying with the law and suggests to constituents a method to exert pressure on the public agency to encourage compliance. The question presented by such a case is: when does the public employee take off her employee hat and put on her citizen hat?
In identifying Plaintiff's official responsibilities, "the proper inquiry is `practical' rather than formal, focusing on `the duties an employee actually is expected to perform,'" and not merely those formally listed in the employee's job description. Id. at 26 (quoting Garcetti, 547 U.S. at 424-25, 126 S.Ct. 1951). It appears that the bulk of Decotiis's official duties related to evaluating and providing services to clients and participating in IFSP/IEP meetings.
Once the employment duties have been identified, the next question is: "was the speech at issue made pursuant to those responsibilities?" Id. at 26. Decotiis alleges retaliation for speech that occurred when she "informed parents of the children she was treating that she was confused and concerned about the criteria CDS-Cumberland was using for eligibility for [ESY] services and that parents should contact [advocacy groups] for guidance concerning their rights under the IDEA."
Applying these factors, we identify some common ground between the parties: Decotiis was not literally authorized or instructed to make the speech at issue. Indeed, the facts are quite the contrary; Decotiis's speech was "not made `pursuant to' her job duties in the most literal sense." Mercado-Berrios, 611 F.3d at 27. Nothing in the complaint suggests that CDS-Cumberland authorized or commissioned Decotiis to urge parents to contact advocacy groups. Her speech may have been related to the subject matter of her job, but it was not, strictly speaking, among her enumerated duties to make such
Beyond this, the analysis becomes more difficult, in part due to the posture of the case. Our review on a motion to dismiss is confined to the face of the complaint, and while Decotiis has stated facts sufficient to establish citizen speech, many other facts that would lend context to her speech are not available. For example, there is no indication where Decotiis advised her clients' parents. She may very well have been in her office (as the district court presumed); but viewing the facts in the light most favorable to Decotiis, she also could have spoken to parents in the grocery store on a Sunday afternoon, or from home on the telephone after hours, or at any sort of social event where people encounter one another in a small community.
It is also not apparent from the complaint whether the speech was made during Plaintiff's work hours, or perhaps more relevantly, during a therapy session. Although the district court presumed "that the speech at issue here occurred during therapy sessions and/or evaluations conducted by the Plaintiff on behalf of CDS-Cumberland," Decotiis, 680 F.Supp.2d at 269, we find no basis for this conclusion within the four corners of the complaint. Such facts may prove true as this litigation unfolds, but based only on the facts alleged in the complaint, such a presumption is inappropriate.
Furthermore, indulging all inferences in favor of Decotiis, we cannot conclude that her speech bore the appearance of official status or significance. The complaint states that she spoke to the parents of her clients, and it is true that speech made to an audience to which an employee only has access through her job is generally less akin to citizen speech.
Here, the complaint does not reveal whether Decotiis's speech was confined to information she had obtained through her employment, that is, whether her speech reflected "special knowledge" attributable to her work. See Williams, 480 F.3d at 694 (concluding that speech was not protected when the employee's knowledge was derived from his position, he spoke to other employees, and the speech concerned the subject matter of his employment). The complaint states that Unified Rule 101 and CDS's related policies had generated consternation among service providers and parents throughout the state. In light of this, it is reasonable to infer that such concern was the subject of public discussion and that Decotiis's knowledge was therefore publically available and not unique to her and those in her employment position.
Finally, we look to whether there is a so-called citizen analogue to Decotiis's speech. See Garcetti, 547 U.S. at 423, 126 S.Ct. 1951 (holding that public-employee speech may be protected when it is "the kind of activity engaged in by citizens who do not work for the government"). Plaintiff argues that her speech was analogous to the speech of other citizens; she says that parents of children, advocacy groups, therapists, professional associations, and lawyers were all discussing the issues about which she spoke. Viewing the facts alleged in the complaint in the light most favorable to Decotiis, her speech appears to have been sufficiently analogous to the speech of other citizens in the community troubled by the new regulation and policy.
In short, while we cannot conclusively say that Plaintiff's speech was made as a
Defendants argue alternatively that even if Decotiis was speaking as a citizen on a matter of public concern, her speech was nevertheless unprotected under the Pickering test. The Pickering test attempts to "balance the value of an employee's speech—both the employee's own interests and the public's interest in the information the employee seeks to impart—against the employer's legitimate government interest in `preventing unnecessary disruptions and inefficiencies in carrying out its public service mission.'" Guilloty Perez v. Pierluisi, 339 F.3d 43, 52 (1st Cir.2003) (quoting O'Connor v. Steeves, 994 F.2d 905, 915 (1st Cir.1993)); see also Pickering, 391 U.S. at 568, 88 S.Ct. 1731 ("The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.").
In assessing the government's interest in allaying disruption and inefficiencies in the workplace, a court should include in its considerations (1) "the time, place, and manner of the employee's speech," and (2) "the employer's motivation in making the adverse employment decision." Davignon v. Hodgson, 524 F.3d 91, 104 (1st Cir.2008). As with the Garcetti analysis, the Pickering balancing test requires a hard look at the facts of the case, including the nature of the employment and the context in which the employee spoke. See id.
The district court noted that Plaintiff's speech was likely not protected under Pickering because she addressed only those with whom she came in contact through her job, and not a wider audience. Decotiis, 680 F.Supp.2d at 271. Taking the district court's conclusion one step further, Defendants argue that CDS-Cumberland has a strong interest in restricting Decotiis's speech to prevent her from interfering with its ability to effectively communicate with the vulnerable population it serves. In their view, CDS's mission was undermined when Decotiis urged parents to contact advocacy agencies and planted seeds of doubt as to the legality of CDS-Cumberland's policies. Decotiis responds that Defendants' bald assertions of workplace disruption are insufficient to meet the Pickering standard.
On Defendants' side, the complaint does not reveal the exact time, place, and manner of Decotiis's speech, but it does state that Decotiis spoke to her clients' parents. While questioning the legality of CDS-Cumberland's policies in the presence of its clients' parents could result in significant disruption and inefficiency, with only the facts in the complaint before us, we cannot say that such a risk of disruption and inefficiency outweighs the important interests served by Decotiis's speech.
The district court held that Defendant Whittemore, in her individual capacity, is entitled to qualified immunity because the law was not so clearly established as to put Whittemore on fair notice that she would be violating Decotiis's First Amendment rights by not renewing her contract. Decotiis, 680 F.Supp.2d at 274. We agree with the district court.
"The qualified immunity doctrine provides defendant public officials an immunity from suit and not a mere defense to liability." Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir.2009). To prevent the unnecessary litigation of claims from which public officials are immune, "immunity is to be resolved at the earliest possible stage in litigation." Id. A plaintiff may overcome qualified immunity by first making out the violation of a constitutional right, and second, establishing that the "right was `clearly established' at the time of the defendant's alleged violation." Id. at 268-69 (quoting Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). The "clearly established" step comprises two subparts: first, whether "the contours of the right [were] sufficiently clear that a reasonable official would understand that what he is doing violates that right," and second, "whether in the specific context of the case, `a reasonable defendant would have understood that his conduct violated the plaintiffs' constitutional rights.'" Mosher v. Nelson, 589 F.3d 488, 493 (1st Cir.2009).
A right is considered clearly established if viewed objectively "at the time the defendant acted, he was on clear notice that what he was doing was unconstitutional." Costa-Urena v. Segarra, 590 F.3d 18, 29 (1st Cir.2009); see also Philip v. Cronin, 537 F.3d 26, 34 (1st Cir.2008) (citing Harlow v. Fitzgerald, 457 U.S. 800, 819, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).
At the time of Whittemore's alleged retaliatory action, the Supreme Court's decision in Garcetti was the only controlling case in the First Circuit, and even Garcetti stated that its analysis was not to be mistaken for "a comprehensive framework for defining the scope of an employee's duties in cases where there is room for serious debate." 547 U.S. at 424, 126 S.Ct. 1951. There were no decisions in this circuit explaining the scope of a public employee's employment duties and what it means to speak pursuant to those duties, nor was there a body of decisions from other circuits that could be said to have put Whittemore on clear notice. Even though the broad constitutional rule, as set forth in Garcetti, may have been clearly established, the contours of the right were still cloudy.
This is illuminated by the analysis of the parties and the district court. The two cases the parties rely on most heavily in arguing that the Garcetti analysis must be resolved in their respective favor, Green, 472 F.3d 794 (relied on by Defendants), and Reinhardt v. Albuquerque Pub. Sch. Bd. of Ed., 595 F.3d 1126 (10th Cir.2010) (relied on by Decotiis), reveal the muddiness of this area of the law. Both decisions came from the Tenth Circuit; they are thoughtful and compatible with one another; they concern somewhat similar factual situations; but neither makes the outcome of this case clear. What is more, Reinhardt had not been decided at the time of Whittemore's alleged retaliation. As our discussion above of the alleged constitutional violation makes pellucid, even in light of the recent developments in this area of the law, this is a close case.
Furthermore, though we conclude that Decotiis stated a plausible claim for relief, the district court's opinion was a well-reasoned
We therefore hold that regardless of whether Whittemore did in fact violate Plaintiff's First Amendment rights, which is yet to be determined, a reasonable person in Whittemore's position could have believed that she was not violating Decotiis's constitutional rights by not renewing her contract. As such, qualified immunity is available to Whittemore in her individual capacity.
In light of its conclusion that Decotiis had failed to make out a constitutional claim against Whittemore, the district court dismissed the supervisory liability claim against Hannigan, along with the claim against CDS-Cumberland based on practice, custom, or policy, and adequate employee training. The district court did not reach Defendants' Eleventh Amendment immunity argument, but it noted that dismissal on those grounds was "likely appropriate" as to CDS-Cumberland and Hannigan. Decotiis, 680 F.Supp.2d at 275 n. 6.
We vacate the dismissal of the claims against Hannigan and CDS-Cumberland because our conclusion that Decotiis adequately pled a constitutional violation as to Whittemore nullifies the district court's grounds for dismissal as to Hannigan and CDS-Cumberland. Because the parties did not brief the sufficiency of Decotiis's claims against Hannigan or CDS-Cumberland under these circumstances, we leave the issues for the district court's determination, if necessary, on remand. Similarly, the parties did not address in their briefing or arguments whether Defendants are entitled to Eleventh Amendment immunity, and so we do not express an opinion on the matter.
For the foregoing reasons, we affirm the judgment of the district court as to Defendant Whittemore, vacate the judgment of the district court as to Defendants Hannigan and CDS-Cumberland, and remand for further proceedings consistent with this opinion. Each party shall bear its own costs.
So ordered.
Although this case is somewhat similar to Green the Tenth Circuit based its decision on material facts that are distinguishable from the facts alleged here—for example, it was clear that the technician was speaking in the laboratory, to clients, and even interacting with other agencies (the Department of Human Services and the outside hospital) in her capacity as an employee. Drawing all reasonable inferences in favor of Decotiis, as we must do at this stage of the litigation, the facts here are not truly analogous to Green.