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, )
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.
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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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