Boglin v. The Board of Trustees of Alabama Agricultural & Mechanical University et al

Filing 29

MEMORANDUM OPINION and ORDER granting 19 MOTION to Dismiss filed by Yvette Clayton, Alabama Agricultural & Mechanical University; As stated within the Defendants' Motion, 19 , is GRANTED; Boglin's claims against Alabama A& M, the board, and the individual members of the board in their official capacities, are DISMISSED WITH PREJUDICE; The official capacity claim against Clayton is DISMISSED WITHOUT PREJUDICE; Finally, although Boglin's individual capacity claims a gainst Clayton and the board, as currently pleaded fail, Boglin has requested a opportunity to amend before the court dismissed these claims, and the court will allow Boglin this opportunity; Any such amendment must be filed within 14 days of the entry of this order. Signed by Judge Abdul K Kallon on 2/6/2018. (KBB)

FILED
2018 Feb-06 PM 04:30
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
DEBORAH A. BOGLIN,
Plaintiff,

vs.
THE BOARD OF TRUSTEES OF
ALABAMA AGRICULTURAL &
MECHANICAL UNIVERSITY, et
al.,

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)
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)
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)
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)

Civil Action Number
5:17-cv-01487-AKK

Defendants.

MEMORANDUM OPINION AND ORDER
Deborah Boglin brings a single First Amendment retaliation claim pursuant
to 42 U.S.C. § 1983 against Alabama Agricultural and Mechanical University
(Alabama A&M); Alabama A&M’s Board of Trustees; each individual member of
the Board of Trustees, in both their official and individual capacities; and Yvette
Clayton, the Director of Career Development Services (CDS) at Alabama A&M, in
both her official and individual capacity. The Defendants have now filed a motion
to dismiss, doc. 19, pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal
Rules of Civil Procedure asserting Eleventh Amendment immunity and arguing
that Boglin has failed to plead a plausible First Amendment retaliation claim. That

1

motion is now fully briefed, docs. 20 and 27, and ripe for decision.1

After

carefully reviewing the parties’ excellent briefs, the applicable law, and the
complaint, the court finds that the Defendants’ motion is due to be granted. The
court will allow Boglin an opportunity, however, to replead her claims against
Clayton and her individual capacity claims against the board.
II. STANDARD OF REVIEW
Typically, immunity issues are construed as challenges to the subject-matter
jurisdiction of a federal court properly raised under Rule 12(b)(1), at least where,
as here, the jurisdictional challenge does not implicate the underlying merits of the
case. See Garrett v. Talladega Cty. Drug & Violent Crime Task Force, 983 F.
Supp. 2d 1369, 1373 (N.D. Ala. 2013); Harris v. Bd. of Trs. Univ. of Ala., 846 F.
Supp. 2d 1223, 1231 (N.D. Ala. 2012). A 12(b)(1) challenge may take the form of
1

The Defendants have also filed a reply brief and supporting exhibits, doc. 28, which the court
STRIKES sua sponte based on the Defendants’ failure to follow the page limitations of this
court’s Uniform Initial Order available on the website for the United States District Court for the
Northern District of Alabama at http://www.alnd.uscourts.gov/content/judge-abdul-k-kallon.
Counsel for the Defendants are experienced practitioners in this District and the court is
confident they are aware of the existence of this order which, among other things, strictly limits
reply briefs to a maximum of five pages. The Defendants’ reply brief, not counting exhibits, is
over 27 pages long, nearly twice the length of its initial brief, and consists of well over 5,000
words. Accordingly, the court relies solely on the Defendants’ initial brief and Boglin’s response
to rule on the Defendants’ motion. The court places counsel for the Defendants on notice that
the court’s orders are not instruments of fiction that parties can ignore. Instead, the court’s
uniform initial order is critical in enabling it “to maintain control over its docket . . . [a] power
[that] is necessary for the court to administer effective justice and prevent congestion.” Young v.
City of Palm Bay, 358 F.3d 859, 864 (11th Cir. 2004); see also United States v. W.R. Grace, 526
F.3d 499, 509 (9th Cir. 2008) (explaining that “‘[a]ll federal courts are vested with inherent
powers enabling them to manage their cases and courtrooms effectively and to ensure obedience
to their orders’”) (quoting Aloe Vera of Am., Inc. v. United States, 376 F.3d 960, 964–65 (9th
Cir. 2004)). The court will make a note internally and will impose sanctions in the future if
counsel engages in similar conduct.
2

a facial or factual attack on the complaint.

McElmurray v. Consol. Gov’t of

Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007). A facial attack
“‘require[s] the court merely to look and see if [the] plaintiff has sufficiently
alleged a basis of subject matter jurisdiction, and the allegations in [her] complaint
are taken as true for the purposes of the motion.’” Id. (quoting Lawrence v.
Dunbar, 919 F.2d 1525, 1529 (11th Cir. 1990)). On the other hand, a factual
attack challenges “‘the existence of subject matter jurisdiction in fact, irrespective
of the pleadings, and matters outside the pleadings . . . are considered.’” Id.
(quoting Lawrence, 919 F.2d at 1529). In such an instance, the court may hear
conflicting evidence and decide the factual issues bearing on jurisdiction. Colonial
Pipeline Co. v. Collins, 921 F.2d 1237, 1243 (11th Cir. 1991). In their initial brief,
the Defendants do not reference the existence of any facts beyond the pleadings
bearing on this court’s jurisdiction.

Accordingly, the court construes the

Defendants’ 12(b)(1) motion as a facial attack.2
In addition to meeting this court’s jurisdictional requirements, Federal Rule
of Civil Procedure 8(a)(2) requires a pleading to contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” “[T]he
2

This ruling renders academic any debate regarding whether a motion to dismiss on Eleventh
Amendment grounds is properly brought under Rule 12(b)(1) or Rule 12(b)(6). In either case,
the procedural safeguards enjoyed by the plaintiff are the same. See, e.g., Lawrence v. Dunbar,
919 F.2d 1525, 1529 (11th Cir. 1990) (noting that a facial attack on jurisdiction under 12(b)(1)
and a motion to dismiss for failure to state a claim under 12(b)(6) both require the deciding court
to consider the allegations in the complaint as true).
3

pleading standard Rule 8 announces does not require ‘detailed factual allegations,’
but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). Mere “‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action’” are insufficient. Id.
(quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders
‘naked assertion[s]’ devoid of ‘further factual enhancement.’”

Id. (quoting

Twombly, 550 U.S. at 557).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to comply with Rule 8(a)(2) or does not otherwise state a claim
upon which relief can be granted. When evaluating a motion brought under Rule
12(b)(6), the court accepts “the allegations in the complaint as true and constru[es]
them in the light most favorable to the plaintiff.” Hunt v. Aimco Props., L.P., 814
F.3d 1213, 1221 (11th Cir. 2016). However, “[t]o survive a motion to dismiss, a
complaint must . . . ‘state a claim to relief that is plausible on its face.’” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 570). A complaint states a facially
plausible claim for relief “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. In other words, the complaint must establish “more than
a sheer possibility that a defendant has acted unlawfully.” Id.; see also Twombly,
4

550 U.S. at 555 (emphasizing that “[f]actual allegations [included in the complaint]
must be enough to raise a right to relief above the speculative level”). Ultimately,
the line between possibility and plausibility is a thin one, and making this
determination is a “context-specific task that requires the reviewing court to draw
on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.
III. FACTS
Boglin worked as a senior secretary for CDS at Alabama A&M. Doc. 1 at 3.
In this position, she had no supervisory duties and instead provided general office
assistance to the department. Id. In October 2014, Boglin learned that other CDS
employees, including her direct supervisor Yvette Clayton, were, among other
things, manipulating Alabama A&M’s leave system and following improper
reimbursement procedures for grants and contract work.

Id. As part of her

ordinary office responsibilities, Boglin processed various requisition requests and
other forms reflecting these improper practices. Id. Boglin also alleges that
Clayton asked her to sign off on purportedly fraudulent reimbursement requests
even though this task was beyond the ordinary scope of Boglin’s duties. Id. at 4.
Concerned by this conduct, Boglin showed some of the improperly
completed documents to another CDS employee. Id. She also twice verbally
reported the issues in CDS to Alabama A&M’s Vice President of Student Affairs
Dr. Bennie McMorris.

Id.

When Clayton learned about the reports to Dr.
5

McMorris, she retaliated by verbally humiliating Boglin, treating Boglin more
harshly than other CDS employees, and, ultimately, by discharging Boglin. Id. As
a result, Boglin filed this lawsuit alleging that she was retailed against in violation
of the First Amendment.
IV. DISCUSSION
In their motion to dismiss, the Defendants argue that (1) Boglin’s claims are
barred by the Eleventh Amendment (except for the individual capacity claims
against Clayton and the Alabama A&M board members); and (2) that Boglin has
failed to allege sufficient facts to plausibly state a claim for retaliation under the
First Amendment. The court will address each argument in turn.
A. Eleventh Amendment Immunity
“‘The Eleventh Amendment prohibits a federal court from exercising
jurisdiction over a lawsuit against a state, except where the state has consented to
be sued or waived its immunity, or where Congress has overridden the state’s
immunity.’” Cross v. Ala. Dep’t of Mental Health & Mental Retardation, 49 F.3d
1490, 1502 (11th Cir. 1995) (quoting Lassiter v. Ala. A&M Univ., Bd. of Trs., 3
F.3d 1482, 1485 (11th Cir. 1993) rev’d on other grounds 28 F.3d 1146 (11th Cir.
1994)).

Here, neither exception applies since Alabama has not waived its

immunity, Alabama A&M University v. Jones, 895 So. 2d 867, 873 (Ala. 2004),
and § 1983 does not represent an abrogation of the Eleventh Amendment. See
6

Carr v. City of Florence, 916 F.2d 1521, 1525 (11th Cir. 1990). Thus, “[t]o
receive Eleventh Amendment immunity, [the] defendant[s] . . . need only be acting
as . . . ‘arm[s] of the State,’ which includes [the State’s] agents and
instrumentalities.”

Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir. 2003).

Significantly, “[t]his jurisdictional bar applies regardless of the nature of the relief
sought.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984). In
other words, the state, along with its agents and instrumentalities, is immune from
suit in federal court regardless of whether the plaintiff is seeking legal or equitable
relief. See id.
However, the Supreme Court’s decision in Ex parte Young, 209 U.S. 123
(1908) provides a narrow exception to this general rule when a “suit alleg[es] a
violation of the federal constitution against a state official in [her] official capacity
for injunctive relief on a prospective basis.” Grizzle v. Kemp, 634 F.3d 1314, 1319
(11th Cir. 2011). To determine whether a suit falls within the Ex parte Young
exception for prospective relief, “a court need only conduct a ‘straightforward
inquiry into whether [the] complaint alleges an ongoing violation of federal law
and seeks relief properly characterized as prospective.’” Verizon Md. Inc. v. Pub.
Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur d’Alene
Tribe of Idaho, 521 U.S. 261, 296 (1997) (O’Connor, J., concurring)).

7

Notably, the Ex parte Young exception does not allow a plaintiff “to
adjudicate the legality of past conduct.” Summit Med. Assocs., P.C. v. Pryor, 180
F.3d 1326, 1337 (11th Cir. 1999).

Therefore, “Ex parte Young requires the

allegation of an ongoing and continuous violation of federal law.” Id. at 1338.
Moreover, Ex parte Young cannot “operate as an exception to . . . sovereign
immunity where no defendant has any connection to the enforcement of the
challenged law at issue.” Id. at 1341. Thus, before the exception applies, the
“state officer [named as a defendant in her official capacity must have] the
authority to enforce an unconstitutional act in the name of the state.” Id.
Boglin expressly concedes that Alabama A&M is not a legal entity capable
of being sued and that the Eleventh Amendment otherwise bars her claims for
money damages and retrospective equitable relief against both the individual
members of A&M’s Board of Trustees and Boglin’s supervisor, Yvette Clayton, in
their official capacities.

Doc. 27 at 4 n.2.3

She argues, however, that her

complaint does contain a request for reinstatement, and that this specific claim falls

3

Boglin does not concede that her claims against the board, as a distinct entity, are barred by the
Eleventh Amendment. However, it is well established that the boards governing state
universities in Alabama are considered arms of the state for Eleventh Amendment purposes. See,
e.g., Lassiter v. Ala. A&M Univ., Bd. of Trs., 3 F.3d 1482, 1485 (11th Cir. 1993) (finding that
Alabama A&M’s Board of Trustees is entitled to immunity from suit under the Eleventh
Amendment), rev’d on other grounds 28 F.3d 1146 (11th Cir. 1994); Harden v. Adams, 760 F.2d
1158, 1164 (11th Cir. 1985) (noting that the Alabama Supreme Court has already “determined
that the Board of Trustees of a state university is entitled to sovereign immunity as an
instrumentality of the state”). Thus, all of her claims against the board are also subject to
dismissal, a point which Boglin does not explicitly contest.
8

within the Ex parte Young exception.

The Defendants seek to defeat this

conclusion by arguing, in part, that Boglin’s termination constituted a discrete act
that occurred in the past.

Accordingly, absent any allegations establishing a

continuing violation of Boglin’s constitutional rights, the Defendants argue that Ex
parte Young does not apply. Alternatively, the Defendants contend that even if
reinstatement qualified as prospective relief, both the Trustees and Clayton lack the
ability to rehire Boglin and are consequently still entitled to Eleventh Amendment
protection in their official capacities.
1. Whether Boglin has Pleaded a Continuing Violation of her Constitutional
Rights
The Eleventh Circuit has repeatedly held that a request for reinstatement is
cognizable via the Ex parte Young exception. See, e.g., Lane v. Cent. Ala. Cmty.
Coll., 772 F.3d 1349, 1351 (11th Cir. 2014) (holding that “[w]e have determined
previously that requests for reinstatement constitute prospective injunctive relief
that fall[s] within the scope of the Ex parte Young exception”); Lassiter, 3 F.3d at
1485 (classifying reinstatement as prospective relief “not barred by the Eleventh
Amendment”). Nor is such a conclusion unusual. In fact, “almost every circuit
court has reached the same result.” Nelson v. Univ. of Tex. at Dallas, 535 F.3d
318, 322 (5th Cir. 2008) (collecting cases “treating reinstatement as an acceptable
form of prospective relief that may be sought through Ex parte Young”). As these
out-of-circuit decisions explain, even though a discharge is an act that occurred in
9

the past, it continues to “harm [the plaintiff] by preventing [her] from obtaining the
benefits of [state] employment.” Coakley v. Welch, 877 F.2d 304, 307 n.2 (4th Cir.
1989); see also Carten v. Kent State Univ., 282 F.3d 391, 396 (6th Cir. 2002)
(rejecting “the defendants’ argument that reinstatement does not constitute
prospective relief designed to end a continuing violation of federal law”). Both
logic and this solid wall of precedent compels the conclusion that reinstatement
neither offends the principal harm the Eleventh Amendment was enacted to guard
against, “an illegitimate award of retroactive damages” against the state, Coakley,
877 F.2d at 307 n.2, nor represents an unusual circumstance “where the state’s
sovereign interests would be affected in a degree fully as intrusive as almost any
conceivable retroactive levy upon funds in its Treasury.” Lane, 772 F.3d at 1351
(quotation omitted); see also Edelman v. Jordan, 415 U.S. 651, 663 (1974)
(explaining that the Eleventh Amendment protects the state from suits by “private
parties seeking to impose a liability which must be paid from public funds in the
state treasury”).

In light of this precedent, and absent any contrary binding

authority presented by the Defendants, the court finds that Boglin’s request for
reinstatement would, in the usual case, be cognizable via Ex parte Young.
2. Whether the Trustees have the Authority to Reinstate Boglin
Unfortunately for Boglin, this is not the usual case. As mentioned above,
the Ex parte Young exception only applies in instances where “the state officer
10

[named as a defendant in her official capacity] has the authority to enforce an
unconstitutional act in the name of the state.” Summit Med., 180 F.3d at 1341.
Here, the complaint fails to allege that Clayton, the board, or the individual board
members had the authority to reinstate Boglin’s employment.4 In fact, under Ala.
Code § 16-49-23, the Alabama Legislature has explicitly provided that “[t]he board
shall not engage in activity that interferes with the day-to-day operation of the
university.” This section goes on to define the primary responsibility of the “board
of trustees [as setting] policy for the university and [prescribing] rates of tuition
and fees.” Ala. Code § 16-49-23. Thus, Alabama law is clear on its face that dayto-day University operating decisions, such as the hiring and firing of University
staff, are under the control of the president, a conclusion confirmed by the
Alabama Supreme Court which recently explained that “[e]mployment decisions
are clearly within the job description of the president of the University.” Ex parte
Hugine, No. 1130428, 2017 WL 1034467, at *11 (Ala. Mar. 17, 2017) (citing Ala.
Code § 16-49-23). When, as here, “the plain reading of a statute produces an
unambiguous and reasonable definition of a term, [the court] will not look past that
plain reading and read into the text of the statute an unstated purpose.” In re
4

The court notes in this respect that Boglin relies entirely on the statutory scheme governing
Alabama A&M to establish the contours of the board’s authority over hiring and firing decisions.
However, as discussed infra, this statutory framework grants operational powers directly to the
president of the university—leaving the board only the power to review those operational
decisions and to set policy goals. Moreover, Boglin’s complaint fails to allege that, in practice,
the board exerts greater power over university operations than the Alabama Code suggests.
11

Tennyson, 611 F.3d 873, 877 (11th Cir. 2010). Moreover, Alabama law provides
that “[w]hen the legislature has made clear its intent that one public official is to
exercise a specified discretionary power, the power is in the nature of a public trust
and may not be exercised by others in the absence of statutory authorization.”
McGlathery v. Ala. A&M Univ., 105 So. 3d 437, 443 (Ala. Civ. App. 2012)
(quotation omitted). Thus, absent explicit statutory authorization, the grant of
statutory hiring authority to the president operates as a bar to the participation of
the board in the hiring and firing university employees.
Boglin resists this interpretation by arguing that Ala. Code § 16-49-24
provides that “the [Trustees] . . . shall have exclusive jurisdiction, power, and
authority with regard to the supervision, management and control of Alabama
[A&M],” and that Ala. Code § 16-49-23 establishes that the president’s actions are
“subject to [the] review and concurrence of the [Trustees].” This myopic reading,
however, ignores additional language in the statute explaining that the board’s
powers over Alabama A&M are limited as provided elsewhere in the code. See
Ala. Code § 16-49-24. Indeed, one of those explicit areas of limitation is the dayto-day operation of the University which the Alabama legislature has expressly
exempted from the board’s control. See Ala. Code § 16-49-23. Under Alabama’s
statutory scheme, the board’s supervisory and management authority over the
University is limited to setting policy and tuition rates, hiring the president, and
12

reviewing and approving the president’s decisions to “regulate, alter, and modify
the organization of the university.” See id. Even if this language conclusively
established the board’s power to review and approve a decision to hire a
departmental secretary, which it does not, the power to approve an action plainly
does not encompass the power to take that action in the first instance. Therefore,
because the discretionary powers provided to an official may not be exercised by
another official absent statutory authorization, see McGlathery, 105 So. 3d at 443,
the court finds that Boglin has failed to plead, or to otherwise establish as a matter
of law, that the individual members of the board are able to directly provide the
injunctive relief she requests. As such, the individual board members are entitled
to sovereign immunity and Boglin’s claims against them, in their official capacity,
are subject to dismissal on that basis.
B. No Plausible First Amendment Claim
The Defendants also attack the substantive basis of Boglin’s claim
contending that she has failed to plausibly allege a First Amendment violation
because her speech does not qualify for First Amendment protection.

It is

hornbook law that “[a] government employer may not demote or discharge a
public employee in retaliation for speech protected by the First Amendment.”
Alves v. Bd. of Regents of the Univ. Sys. of Ga., 804 F.3d 1149, 1159 (11th Cir.
2015). However, a government employee, by virtue of her public service, “must
13

accept certain limitations on [her] freedom[s].” Garcetti v. Ceballos, 547 U.S.
410, 418 (2006). The law in this arena seeks to strike “a balance between the
interests of the [employee], 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.” Pickering v. Bd. of Educ.
of Twp. High Sch. Dist. 205, 391 U.S. 563, 568 (1968).
The court’s inquiry into whether a public employee’s speech is protected by
the First Amendment has two parts. Alves, 804 F.3d at 1159. At the outset, the
court must determine “whether the employee spoke as a citizen on a matter of
public concern. . . . If the answer is no, the employee has no First Amendment
cause of action based on . . . her employer’s reaction to the speech.” Garcetti, 547
U.S. at 418. If the answer is yes, however, the court must determine “whether the
relevant government entity had an adequate justification for treating the employee
differently from any other member of the general public.” Id. In short, “[t]he First
Amendment will step in to safeguard a public employee’s right, as a citizen, to
participate in discussions involving public affairs, but ‘it [will] not empower [her]
to constitutionalize [an] employee grievance.’” Alves, 804 F.3d at 1160 (quoting
Garcetti 547 U.S. at 420).
Here, the Defendants’ motion is based solely on the first prong of the
Garcetti inquiry, i.e. the Defendants argue that Boglin’s complaint does not
14

plausibly allege that she was speaking as a citizen on a matter of public concern
when she internally reported misconduct in her department. As described above,
the First Amendment only protects Boglin’s speech if it was made “(1) as a citizen
and (2) on a matter of public concern.” Id. As a threshold matter, “when public
employees make statements pursuant to their official duties, the employees are not
speaking as citizens for First Amendment purposes.” Garcetti, 547 U.S. at 421.
The primary inquiry into whether a public employee spoke as a citizen is “whether
the speech at issue ‘owes its existence’ to the employee’s professional
responsibilities.” Moss v. City of Pembroke Pines, 782 F.3d 613, 618 (11th Cir.
2015) (citation omitted).

In making this determination, the court considers a

variety of factors “such as the employee’s job description, whether the speech
occurred at the workplace, and whether the speech concerns the subject matter of
the employee’s job.” Id. Critically, “the mere fact that a citizen’s speech concerns
information acquired by virtue of [her] public employment does not transform that
speech into employee . . . speech.” Lane v. Franks, 134 S. Ct. 2369, 2379 (2014).
In other words, Garcetti requires the court to resolve “whether the speech is itself
ordinarily within the scope of an employee’s duties, not whether it merely concerns
those duties.” Id.
The second requirement for constitutional protection—that the speech
addresses a matter of public concern— emphasizes “the context of the speech and
15

asks whether the employee spoke on a matter of public concern or on matters of
only personal interest.” Alves, 804 F.3d at 1162. Under Supreme Court precedent,
speech is considered on a matter of public concern if it relates to “any matter of
political, social, or other concern to the community.” Connick v. Myers, 461 U.S.
138, 146 (1983). Recognizing that “[a]n employee’s speech will rarely be entirely
private or entirely public,” Morgan v. Ford, 6 F.3d 750, 755 (11th Cir. 1993), the
court must examine “the content, form, and context of a given statement, as
revealed by the whole record.” Connick, 461 U.S. at 147–48. If “‘the main thrust
of the speech in question is essentially public,’” it qualifies for First Amendment
protection. Alves, 804 F.3d at 1162 (quoting Vila v. Padron, 484 F.3d 1334, 1340
(11th Cir. 2007)). While a court may not rely solely on whether the employee’s
speech was aired to the public, both this factor and the employee’s motivation for
speaking, are pertinent to the inquiry. Id. However a “public employee may not
transform a personal grievance into a matter of public concern by invoking a
supposed popular interest in the way public institutions are run.” Ferrara v. Mills,
781 F.2d 1508, 1516 (11th Cir. 1986). In general, “‘courts have found speech that
concerns internal administration of the educational system and personal grievances
will not receive constitutional protection.’” Alves, 804 F.3d at 1166 (quoting
Maples v. Martin, 858 F.2d 1546, 1552 (11th Cir. 1988)).

16

With these principles in mind, the court turns now to the specific allegations
in Boglin’s complaint.
1. Whether Boglin Spoke as a Citizen or a Public Employee
It is evident from the complaint that Boglin’s verbal reports of CDS
misconduct owed their existence to Boglin’s professional responsibilities.
Boglin’s reports were exclusively made at the workplace and directed toward other
Alabama A&M employees. Moreover, it is apparent from the complaint that both
of Boglin’s verbal reports concerned the routine details of her job duties. Doc. 1 at
3–4. Indeed, processing various forms related to requisitions and travel requests
was one of Boglin’s basic professional responsibilities, id. at 3, and her internal
reports directly relate to the content of those forms and the misconduct their
processing purportedly revealed. Id. at 3–4. The complaint further suggests that
Boglin’s internal reports of misconduct were motivated directly by Boglin’s
supervisor’s decision to ask Boglin to approve certain, purportedly fraudulent,
documents, a responsibility beyond the scope of Boglin’s ordinary duties, as
pleaded. Id. at 4. In short, Boglin was concerned about the duties she was asked to
perform and whether her duties were being properly carried out. The complaint is
clear that these issues with the routine performance of Boglin’s professional
responsibilities were the only problems Boglin’s internal reports plausibly raised
either to her coworker or to A&M’s Vice President of Student Affairs. Id. at 3–4.
17

Unfortunately for Boglin, these are precisely “the type of on-the-job, jobrelated exchanges that ‘cannot reasonably be divorced from [job] responsibilities.’”
Keller v. City of Tallahassee, 181 F. Supp. 3d 934, 954 (N.D. Fla. 2015) (quoting
Alves, 804 F.3d at 1165). Finding, as Boglin wants, that uncovering fraud or
making a report of malfeasance constitutes citizen speech because those activities
are not, as a formal matter, within her job description “would disregard the actual
activities [Boglin] engaged in . . . as well as the purpose served by [her
complaints].” Alves, 804 F.3d at 1164. Instead, as pleaded, the subject matter of
Boglin’s verbal reports, the request that Boglin perform extra duties and
improperly complete requisition and travel request forms, directly relate to
Boglin’s ability to perform her ordinary secretarial functions. Doc. 1 at 3–4. The
court therefore concludes that because this speech “was an attempt to ensure
proper implementation of [Boglin’s duties] . . . [it] was therefore offered pursuant
to [those] job duties,” Winder v. Erste, 566 F.3d 209, 215 (D.C. Cir. 2009), and
notably Boglin has provided no other allegations enabling this court to disentangle
her speech from its overwhelmingly professional context.
In any event, Boglin’s contention that because her formal job description did
not mandate verbal reporting for misconduct, she had no formal, affirmative
obligation to report the alleged fraud or Clayton’s misconduct is unavailing
because the Supreme Court has said that “[f]ormal job descriptions often bear little
18

resemblance to the duties an employee actually is expected to perform, and the
listing of a given task in an employee’s written job description is neither necessary
nor sufficient” to indicate that the task is a part of an employee’s professional
duties. Garcetti, 547 U.S. at 424–25. Instead, the court undertakes “a functional
review of an employee’s speech” and asks “whether a public employee was
speaking pursuant to an official duty, not whether that duty was part of the
employee’s everyday job functions.” Abdur-Rahman v. Walker, 567 F.3d 1278,
1285 (11th Cir. 2009) (quotation omitted). Moreover, the Eleventh Circuit has
repeatedly emphasized that “[a]ctivities undertaken in the course of performing
one’s job are activities undertaken ‘pursuant to employment responsibilities.’”
Alves, 804 F.3d at 1164 (citation omitted).
As discussed previously, Boglin’s performance of her regular job
responsibilities, processing requisition and travel requests and following her
supervisor’s directives, involved her in the allegedly fraudulent and improper
conduct engaged in by her co-workers.

Doc. 1 at 3–4.

While reporting

mismanagement and malfeasance may not formally be part of Boglin’s duties,
implicit in her role as a Senior Secretary “is the duty to inform . . . those that would
appear to have the most need to know and the best opportunity to investigate and
correct the barriers to [Boglin’s] performance.”

Alves, 804 F.3d at 1165.

Therefore, as the Eleventh Circuit has repeatedly found, an employee who makes
19

internal reports regarding mismanagement and fraud generally speaks pursuant to
her professional duties rather than as a citizen. See, e.g., id. at 1164–65 (finding
that a memorandum detailing repeated mismanagement of a student health center
was not citizen speech because it represented an internal report of conduct
interfering with the authors’ job responsibilities); Abdur-Rahman, 567 F.3d at 1285
(explaining that “[s]peech that owes its existence to the official duties of public
employees is not citizen speech even if those duties can be described so narrowly
as not to mandate the act of speaking”); Phillips v. City of Dawsonville, 499 F.3d
1239, 1242–43 (11th Cir. 2007) (finding that even though reporting financial
misconduct was not an enumerated duty it was still made “pursuant” to the
reporting employee’s official duties and thus unprotected by the First
Amendment). The court therefore concludes Boglin was not speaking as a citizen
when she made her internal complaints and, as such, her speech was not protected
by the First Amendment.
2. Whether Boglin’s Speech Involved a Matter of Public Concern
Alternatively, the Defendants’ motion is due to be granted because Boglin
has failed to adequately allege that her speech was on a matter of public concern.
The complaint focuses primarily on two verbal reports of misconduct Boglin made
to Dr. Bennie McMorris, the then Vice President of Student Affairs at Alabama
A&M. Doc. 1 at 4. Although the complaint contains no specific allegations
20

regarding the details of those verbal reports, it generally alleges that Boglin
approached Dr. McMorris due to her concerns about being asked to sign off on
fraudulent reimbursement forms, a task outside the scope of her usual duties, and
the improper completion of various forms which Boglin was required to process.
Id. at 3–4. This type of complaint does not reflect any particular political or civic
concerns Boglin may have had with respect to the behavior of her supervisor or
coworkers.

Nor is it the type of speech that generally qualifies for First

Amendment protection as “directly affect[ing] the public’s perception of the
quality of education in a given academic system.” Maples, 858 F.2d at 1553.
Instead, the main thrust of the speech reflects only Boglin’s concern with the
internal operation and management of the department where she works, a topic of
private rather than public concern.

See id. at 1552–53 (collecting cases and

explaining that “speech that concerns internal administration of the educational
system . . . will not receive constitutional protection”).
Simply because speech touches upon the general public interest in efficiently
functioning public institutions does not “‘transform a personal grievance into a
matter of public concern.’” Boyce v. Andrew, 510 F.3d 1333, 1345 (11th Cir.
2007) (quoting Ferrara, 781 F.2d at 1516). Instead, the critical inquiry is whether
“the purpose of [Boglin’s] speech was to raise issues of public concern.” Maggio
v. Sipple, 211 F.3d 1346, 1353 (11th Cir. 2000) (quotation omitted). Here, there is
21

no basis in the complaint before the court to support a plausible inference that
Boglin’s verbal reports to Dr. McMorris, although ostensibly intertwined with
matters of public concern, were intended to raise the issue of Clayton’s
mismanagement for the public’s benefit. See, e.g., Boyce, 510 F.3d at 1344–45
(noting that even though public employees’ speech was “intermingled” with the
important public issue of child safety there was no showing that that the speech
“intended to address matters of public concern from the perspective of a citizen”);
see also White Plains Towing Corp. v. Patterson, 991 F.2d 1049, 1059 (2d Cir.
1993) (explaining that “[e]ven as to an issue that could arguably be viewed as a
matter of public concern, if the employee has raised the issue solely in order to
further his own employment interest, [her] First Amendment right to comment . . .
is entitled to little weight”).
This conclusion is buttressed by the fact that Boglin does not allege that she
ever sought to publicize her concerns regarding Clayton’s purported malfeasance.
See Morgan, 6 F.3d at 754 (explaining that courts “may consider the employee’s
attempts to make the concerns public”). Indeed, the complaint reveals that the
issues Boglin brought to the attention of Dr. McMorris were raised and discussed
only within the confines of Alabama A&M, doc. 1. at 4. See Alves, 804 F.3d at
1168 (noting that the means by which the plaintiff “communicated [her] concerns
further supports that this was a private employee grievance”). Moreover, there is
22

no indication from the complaint that Boglin was concerned about anything other
than her ability to properly perform her duties, and she does not allege that she
intended her internal complaints to alert the public to wrongdoing on the part of
state officials.

As pleaded, the court lacks any basis to infer that Boglin’s

complaints were primarily motivated by a public purpose, i.e. a concern over the
potential waste of taxpayer funds. Instead, the plain inference from the complaint
is that Boglin was concerned about acting outside of her usual job responsibilities
and her inability to properly process various internal documents because of the
allegedly fraudulent activities occurring in her department. The First Amendment,
simply does not empower public employees to “constitutionalize [their] employee
grievance[s]” in this manner. Connick, 461 U.S. at 154.
Boglin is certainly correct that “complaints about the misuse of public funds
can be a matter of public concern.” Boyett v. Troy State Univ. at Montgomery, 971
F. Supp. 1403, 1416 (M.D. Ala. 1997). However, her complaint, as pleaded, fails
to provide any plausible basis to infer that the main thrust of her speech implicated
a social, political, or other civic concern rather than an unprotected grievance with
respect to interference with her professional responsibilities. See Connick, 461
U.S. at 146. Likewise, the complaint does not support Boglin’s contention in her
brief that her reports of misconduct “constituted speech protected by the First
Amendment . . . [as] speech of a private citizen on a matter of public concern.”
23

Doc. 27 at 13–14. While the court appreciates Boglin’s attempts to characterize
her speech, “it is the province of the court to determine whether [the speech
constitutes] an employee grievance” or protected speech. Alves, 804 F.3d at 1166
n.6. Because the allegations in the complaint, evaluated as a whole, demonstrate
that Boglin’s workplace complaints were not intended to raise a matter of public
concern, the court finds that her speech constituted a mere employee grievance
unprotected by the First Amendment. See Maggio, 211 F.3d at 1353 (explaining
that the “the relevant inquiry is not whether the public would be interested in the
topic of the speech at issue . . . [instead it is] whether the purpose of [the
employee’s] speech was to raise issues of public concern”) (quotation omitted).5
V. CONCLUSION AND ORDER
To survive a motion to dismiss for failure to state a claim, Boglin must
provide sufficient factual allegations to allow “the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.
at 678.

Boglin has failed to demonstrate that her speech is constitutionally

protected under Garcetti’s threshold inquiry and consequently her complaint does

5

It is true, as Boglin points out, that she alleges that her “complaints and disclosures . . . were
speech of a private citizen on a matter of public concern.” Doc. 1 at 5. However, this statement
represents a mere legal conclusion and it is not entitled to a presumption of truth at the pleading
stage. See Franklin v. Curry, 738 F.3d 1246, 1251 (11th Cir. 2013) (explaining that these types
of statements are “conclusory legal allegations” that “carry no weight”). Instead, to survive a
motion to dismiss Boglin must plead “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. She
has failed to do so here.
24

not allege a plausible First Amendment violation.6 Therefore, the Defendants’
motion, doc. 19, is GRANTED. Boglin’s claims against Alabama A&M, the
board, and the individual members of the board in their official capacities, are
barred by the Eleventh Amendment and are accordingly DISMISSED WITH
PREJUDICE.

The official capacity claim against Clayton is DISMISSED

WITHOUT PREJUDICE.7 Finally, although Boglin’s individual capacity claims
against Clayton and the members of the board, as currently pleaded, fail, Boglin
has requested an opportunity to amend before the court dismisses these claims,
doc. 27 at 12 n.5, and the court will allow Boglin this opportunity. Any such
amendment must be filed within fourteen (14) days of the entry of this order.
DONE the 6th day of February, 2018.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

6

Boglin also briefly argues that a ruling on whether her speech was entitled to First Amendment
protection is premature at this juncture because to make such a determination the court must
examine “the content, form, and context of a given statement as revealed by the whole record.”
Connick, 461 U.S. at 147–48. However, when ruling on a motion to dismiss, the court simply
asks whether, taking all of the factual allegations contained in the complaint as true and viewing
them in the light most favorable to the plaintiff, the complaint has alleged a plausible claim. As
explained above, Boglin has failed to do so here and, accordingly, her complaint cannot survive a
motion to dismiss.
7
Although Boglin never argues or pleads that Clayton possesses the delegated authority from the
president to reinstate Boglin to her former position, perhaps this failing was an oversight given
that she pleaded that Clayton had the authority to discharge her. To the extent that Clayton had
hiring and firing authority, then the official capacity claims against her are not barred by the
Eleventh Amendment as she would have the authority “to enforce an unconstitutional act in the
name of the state.” Summit Med., 180 F.3d at 1341.
25