Kirkpatrick v. Geneva County Board of Education et al

Filing 69

OPINION. An appropriate judgment will be entered granting Birdsongs dismissal motion and dismissing her. Signed by Honorable Judge Myron H. Thompson on 10/6/2015. (dmn, )

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, SOUTHERN DIVISION DONNA KIRKPATRICK, Plaintiff, v. GENEVA COUNTY BOARD OF EDUCATION, et al., Defendants. ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 1:14cv171-MHT (WO) OPINION Plaintiff Donna Kirkpatrick brought this action against three defendants: the Geneva County Board of Education, former superintendent William David Snell, and current superintendent Becky Birdsong. Kirkpatrick asserts violations of her First Amendment rights to freedom of speech and association (as enforced through 42 U.S.C. § 1983) and violations of her rights under Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. §§ 1981a & 2000e, et seq.), and the Family and Medical Leave Act (FMLA) (29 U.S.C. § 2601, et seq.). Subject-matter jurisdiction is proper under 28 U.S.C. §§ 1331 rights). The (federal question) case now is and before 1343 this (civil court on Birdsong’s motion to dismiss in which she asserts the defense of ‘qualified immunity.’ follow, the dismissal motion For the reasons that will be granted and Birdsong dismissed. I. LEGAL STANDARD In considering a defendant’s motion to dismiss, the court accepts the plaintiff’s allegations as true, Hishon v. King & Spalding, 467 U.S. 69, 73 (1984), and construes the complaint in the plaintiff’s favor, Duke v. Cleland, 5 F.3d 1399, 1402 (11th Cir. 1993). issue is not whether a plaintiff will “The ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” 416 U.S. 232, 236 (1974). Scheuer v. Rhodes, To survive a motion to dismiss, a complaint need not contain “detailed factual allegations,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 2 545 (2007), “only enough facts to state a claim to relief that is plausible on its face.” Id. at 574. II. BACKGROUND Kirkpatrick administrator Education. the is a special employed by education the teacher Geneva and County of In this lawsuit, she claims primarily that county superintendent school board, Snell and along with current former superintendent Birdsong, retaliated against her in various ways for protected activity. the complaint and The following facts are drawn from taken as true in considering Birdsong’s motion to dismiss. Kirkpatrick has been employed by the school board since 1994. She has advanced degrees in special education and is a tenured teacher, having served as a special education teacher at Samson Elementary School for ten years. She became principal of Samson in 2009; her contract for that position was for three years, beginning with the 2009-2010 school year. 3 In the fall of 2009, at the beginning of her term as principal, Kirkpatrick applied to the school board for the position of Special Education Coordinator. She was not selected; according to the complaint, a less qualified man was given the job. Kirkpatrick then filed a charge with the Equal Employment Opportunity Commission (EEOC). Kirkpatrick contends that the board and Snell began to retaliate against her in 2010. says that they issued her an Specifically, she unwarranted reprimand letter in January and that in May they rejected her recommendations for teachers to hire. Principals’ recommendations would normally receive deference. In October 2010, another employee of the school board, Sonja Harrison, asked Kirkpatrick to testify on her behalf Harrison’s testified at EEOC an arbitration charge. regarding her hearing Kirkpatrick own allegations discrimination against the board. 4 regarding agreed of and gender In January 2011, while on maternity leave, Kirkpatrick was reprimanded for visiting the school, although she is unaware of any policy prohibiting visits. In February 2011, while still on maternity leave, she was not consulted about a reprimand issued to one of the teachers at her school. Snell criticized student award. about Kirkpatrick’s Also in 2011 determination about a He claimed to have received complaints Kirkpatrick’s performance, but, on the recommendation of a school-board member, would not let Kirkpatrick see the complaints. The school board again departed from the practice of deferring to principal recommendations in several occasions. hiring staff for her school on Among the candidates recommended by Kirkpatrick but not hired was Harrison, on whose behalf Kirkpatrick had testified. The board also permitted the transfer of a teacher working under Kirkpatrick without following the normal protocol of notifying the principal. In January 2012, Snell accused Kirkpatrick 5 of violating a federal privacy statute, but later admitted that she had not done so. In February 2012, Kirkpatrick took time off to care for her sick father. Kirkpatrick’s March 10 and was buried March 13. called Kirkpatrick work. Kirkpatrick to ask said when she father died on On March 14, Snell she would planned to return return to the following week, but Snell said that was unacceptable and told her to return the following day, March 15, 2012. On March 15, Snell presented Kirkpatrick with a performance review unjustifiably decision school negative, not principal. that to renew Kirkpatrick allegedly as contends pretext Kirkpatrick’s was for contract a as On March 19, Snell and counsel for the board informed Kirkpatrick that recommended her contract not be renewed. Snell had According to the complaint, this was the earliest opportunity the board had to decline to renew the contract following Kirkpatrick’s EEOC charge and testimony. 6 Kirkpatrick also cites Snell for chastising her for taking a legitimate personal day and baselessly accusing her of acting unprofessionally, as well as his continued refusal to honor her hiring recommendations. Further, she made 11 requests for transfers to different positions within the district between June 2012 and August 2013, and the defendants denied them all. Snell and Birdsong called her about the first request, and asked if she was interested in the position and if she would agree not to contest the decision to Kirkpatrick non-renew said she her could contract not as discuss principal. the latter issue, and her request for a transfer was ultimately denied. Kirkpatrick filed a second EEOC charge on November 6, 2013. She filed the original lawsuit on March 14, 2014. complaint in this Kirkpatrick then received her right-to-sue letter in August 2014 and filed an amended complaint on November 20, 2014, with the letter 7 attached. In response, Birdsong filed the motion to dismiss that is now before the court. III. DISCUSSION Kirkpatrick violated her association. board alone claims First that Amendment all three right to defendants freedom of She also claims that the county school violated her First Amendment right to freedom of speech1 and her rights under the FMLA and Title VII.2 With her motion to dismiss, Birdsong argues 1. Kirkpatrick initially sued Snell and Birdsong on her free-speech claim as well, but stipulated to the dismissal of that claim against them. See Pf. Supp. Br. (doc. no. 35); Order (doc. no. 41). 2. Kirkpatrick also sued Birdsong in her official capacity on these claims against the school board. “The Supreme Court has said that official capacity suits represent ‘only another way of pleading an action against an entity of which an officer is an agent,’ and a victory against a named individual in an official capacity suit is ‘a victory against the entity that employs him.’” Hobbs v. Roberts, 999 F.2d 1526, 1530 (11th Cir. 1993) (quoting Kentucky v. Graham, 473 U.S. 159, 167-68 (1985)). Because Kirkpatrick has apparently conceded this point, the court views her free-speech, FMLA, and Title VII claims to be against only the school board. (continued...) 8 that the only claim Kirkpatrick has against her--that Birdsong violated Kirkpatrick’s right to freedom of association--should be dismissed based on the defense of qualified immunity. A. The court will first discuss the nature of the qualified-immunity defense. “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). In deciding It also appeared that Kirkpatrick made a claim arising out of the school board’s decision not to hire her as Special Education Coordinator in 2009. Kirkpatrick has indicated that she is making no such claim, but only pleaded facts related to that decision as background for her retaliation claim. 9 whether an official is entitled to this immunity, courts analyze (1) whether the plaintiff has shown an actual violation of her right and (2), if so, whether the right at issue was clearly established at the time it was violated. Pearson, 555 U.S. at 232. “Qualified immunity protects government officials, in their individual capacities, from suit unless the law preexisting the defendant official’s supposedly wrongful act was already established to such a high degree that every objectively reasonable official standing in the defendant’s place would be on notice that what the defendant official was doing would be clearly unlawful given the circumstances.” Pace v. Capobianco, 283 F.3d 1275, 1282 (11th Cir. 2002). this court has explained: “[The requirement that a right be clearly established] is fundamentally a question of fair notice: If the law does not make the officer aware that his ‘conduct would be clearly unlawful,’ then he is protected by qualified immunity, Saucier v. Katz, 533 U.S. 194, 202 (2001); however, if the plaintiff can show that ‘a materially similar case has already 10 As been decided’ in his favor, then fair notice exists and qualified immunity does not attach. Mercado v. City of Orlando, 407 F.3d 1152. 1159 (11th Cir. 2005).” Schultz v. City of Brundidge, 2012 WL 705358 at *5 (M.D. Ala. 2012) (Thompson, J.); see also Mercado v. City of Orlando, 407 F.3d 1152, 1159 (11th Cir. 2005) (discussing ways to demonstrate that a right was clearly established). Kirkpatrick contends that a qualified-immunity analysis is premature, but she is incorrect. immunity is routinely raised and Qualified addressed at the motion-to-dismiss stage, see, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 672 (2009), and its “basic thrust ... is to free officials from the concerns of litigation, including avoidance of disruptive discovery.” 685 (internal quotation marks omitted). doctrine is properly raised at this stage. B. 11 Id. at Thus, the The court will now determine whether the qualified-immunity defense defeats Kirkpatrick’s claim against Birdsong Public employees’ claims based on freedom of association and freedom of speech are analyzed almost identically. To set forth a free-speech claim, “a public employee must show: (1) she was speaking as a citizen on a matter of public concern; (2) her interests as a citizen outweighed the interests of the State as an employer; substantial or and (3) motivating employment action.” the role speech in played the a adverse Vila v. Padron, 484 F.3d 1334, 1339 (11th Cir. 2007); see also Lane v. Franks, 134 S. Ct. 2369, 2378 (2014). In analyzing employee’s freedom-of-association claim, Circuit Court (substituting exception: the case not need of Appeals applies association plaintiff show for in that a the the public the Eleventh same speech), analysis with one freedom-of-association associative related to a matter of public concern. 12 a activity See Cook v. Gwinnett Cnty. Sch. Dist., 414 F.3d 1313, 1320 (11th Cir. 2005); D'Angelo v. Sch. Bd. of Polk Cnty., Fla., 497 F.3d 1203, 1212 (11th Cir. 2007). Kirkpatrick contends that Birdsong violated her right to freedom of association by retaliating against her for her association with--in the form testimony on behalf of--Sonja Harrison. Lane v. Franks, the Supreme Court of her In 2014 in announced that: “Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is speech as a citizen for First Amendment purposes. even when the testimony relates to That is so his public employment or concerns information learned during that employment.” 134 S. Ct. at 2378. Birdsong decision, she argues that, is despite entitled to the qualified 2014 Lane immunity because, at the time she acted in 2012 and 2013, the law did not clearly establish that she was violating Kirkpatrick’s free-association agrees. 13 rights. The court At the time Birdsong acted, it was, as a general matter, “clearly established that public employees have a First Amendment right to engage activity without retaliation.” Sch. Dist., 414 F.3d in associative Cook v. Gwinnett Cnty. 1313, 1320 (11th Cir. 2005) (citing Hatcher v. Board of Pub. Educ. & Orphanage for Bibb County, 809 F.2d 1546, 1558 (11th Cir. 1987)). Kirkpatrick relies on Hatcher, a 1987 case, to show that her 2013. claim was clearly established in 2012 and In Hatcher, a former school principal claimed that the school board denied her a new job “because she brought her minister and a school board member to her meeting with the assistant superintendent.” 809 F.2d at constitutes 1557. The court constitutionally concluded protected Hatcher, that “this associational activity,” id., reversed the district court’s grant of summary judgment further findings. However, the for the board, and remanded for Id. at 1559. requirements freedom-of-association claim 14 for have establishing evolved a since Hatcher. Relying on the distinction drawn in Garcetti v. Ceballos, 547 U.S. 410 (2006), a public-employee free-speech case, the Eleventh Circuit held that a public employee bringing claim must show that her a in 2007 free-association associational activity was undertaken as a “citizen” rather than as an employee. D’Angelo, 497 F.3d at 1212. cases interpreting that And the Eleventh Circuit’s distinction before the 2014 Lane decision were less than clear. Abdur-Rahman v. Walker, 567 F.3d 1278, 1283 (11th Cir. 2009), abrogated in part by Lane, 134 S. Ct. at 2376, a whether free-speech the case, turned public-employee citizens or employees. on the plaintiffs issue spoke of as In holding that plaintiffs’ speech was unprotected, the Eleventh Circuit focused on language from Garcetti indicating that “speech that owes its existence to a public employee’s professional responsibilities” constitutes unprotected speech as an employee. Id. (internal quotation marks omitted). In her dissent, Judge Barkett took issue with this reading 15 of Garcetti, pointing out that, properly understood, that case indicated that “an employer commissions or creates speech when an employee speaks pursuant to official duties, not when that employee speaks outside of those commissioned duties.” J., dissenting). Id. at 1289 (Barkett, Indeed, Judge Barkett’s reading of Garcetti was vindicated in 2014 in Lane. See Lane, 134 S. Ct. at 2379 (“The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.”); id. at 2383 (Thomas, J., concurring) (“The petitioner in this case did not speak ‘pursuant to’ his ordinary job duties because his responsibilities did not include testifying in court proceedings, and no party has suggested that he was subpoenaed as a representative of his employer.”) (citations omitted). Nonetheless, at the time of Birdsong’s conduct in this case, Abdur-Rahman was still good law, and the line between engaging in associative 16 activity as a citizen rather than as an employee remained ill-defined in the Eleventh Abdur-Rahman, Circuit. Birdsong Arguably, reasonably in could light have of seen Kirkpatrick’s testimony for her colleague at the EEOC hearing about constituting existence events that associative to a occurred activity public at “that employee’s work owes as its professional responsibilities,” Abdur-Rahman, 567 F.3d at 1283, and therefore was undertaken not as a citizen, but as an employee. Because the distinction between employee and citizen at issue in Abdur-Rahman applies as well to a freedom-of-association claim, see D’Angelo, 497 F.3d at 1212, and because that doctrine was developed after the decision in Hatcher on which Kirkpatrick relies, the court concludes that the “landscape of Eleventh Circuit precedent,” Lane, 134 S. Ct. at 2382, failed to give fair notice that the conduct alleged in this case would violate Kirkpatrick’s rights. Thus, the court will grant qualified immunity to Birdsong on this claim. 17 *** For the foregoing reasons, an appropriate judgment will be entered granting Birdsong’s dismissal motion and dismissing her. DONE, this the 6th day of October, 2015. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

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