Lebbon et al v. Reed et al

Filing 19

ORDER granting Defendant Reed's 5 Motion to Dismiss; Defendant Reed is dismissed from this lawsuit; all claims against the City survive. Signed by Judge G Murray Snow on 7/16/12.(REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Cameron Lebbon, a married man; Peoria
Police Officer's Association Charities, a
non-profit charitable corporation; Peoria
Police Officer's Association, a non-profit
corporation,

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No. CV-12-921-PHX-GMS
ORDER

Plaintiffs,

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v.

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Wynette Reed, individually and in her
capacity as City of Peoria Personnel
Director; City of Peoria, a municipality,

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Defendants.

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Pending before the Court is Defendant Reed’s Motion to Dismiss. (Doc. 5). For
the reasons stated below, the motion is granted.

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BACKGROUND

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Plaintiff Lebbon is a police officer employed by the City of Peoria. Plaintiffs

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Peoria Police Officer’s Association Charities (“PPOAC”) and the Peoria Police Officer’s

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Association (“PPOA”) are non-profit corporations of which he is a member. (Doc. 1-1

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¶ 6). Acting in his capacity as president of PPOA, Plaintiff Lebbbon engaged in an

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adversarial relationship with supervisory employees of Defendant City of Peoria (the

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“City”). (Doc. 1-1 ¶ 11). In particular, Plaintiff Lebbon had met with Chief Ratcliff of the

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City’s Police Department regarding Plaintiffs’ claims that Lieutenant Walls of the City’s

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Police Department had violated the Fair Labor Standards Act (“FLSA”) among other

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laws. According to the Complaint, Lieutenant Walls, in an act of “self-preservation,”

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wrote a memo to the chief of police defaming Plaintiffs’ character. (Doc. 1-1 ¶ 13). The

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City thereafter commenced an investigation against Plaintiffs, which culminated when

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Defendant Reed, the City’s Director of Personnel, published a document “which

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contained outright lies about the Plaintiffs and thereby defamed the good reputation of

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the Plaintiffs.” (Doc. 1-1 ¶ 19).

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Plaintiffs filed this suit in Maricopa County Superior Court against the City and

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Reed, seeking damages under 42 U.S.C. § 1983 for violation of their First Amendment

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rights. (Doc. 1-1). The suit also included various state law claims, including violations of

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the Arizona Constitution, defamation, and intentional infliction of emotional distress.

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(Id.). Defendants removed this action to federal court pursuant to 28 U.S.C. § 1446(a).
(Doc. 1). Defendant Reed now seeks dismissal of all claims against her. (Doc. 5).

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DISCUSSION
I.

Legal Standard

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To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil

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Procedure 12(b)(6), a complaint must contain more than “labels and conclusions” or a

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“formulaic recitation of the elements of a cause of action”; it must contain factual

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allegations sufficient to “raise a right to relief above the speculative level.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). While “a complaint need not contain
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detailed factual allegations . . . it must plead ‘enough facts to state a claim to relief that is

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plausible on its face.’” Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir.

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2008) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the

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plaintiff pleads factual content that allows the court to draw the reasonable inference that

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the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663

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(2009) (citing Twombly, 550 U.S. at 556). The plausibility standard “asks for more than a

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sheer possibility that a defendant has acted unlawfully.” When a complaint does not

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“permit the court to infer more than the mere possibility of misconduct, the complaint has

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alleged—but it has not shown—that the pleader is entitled to relief.” Iqbal, 556 U.S. at

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679 (internal quotation omitted).

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II.

Analysis

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A.

State Law Claims

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Defendant Reed is a public employee, and any person asserting state-law claims

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against a public employee must serve a notice of claim before bringing suit and within

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280 days of the accrual of the cause of action. Arizona Revised Statutes (“A.R.S.”) § 12-

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821.01. Plaintiffs concede that they have not served Defendant Reed with a notice of

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claim, and consent to dismissal of all state-law claims against her. (Doc. 9 at 7). All state-

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law claims are therefore dismissed with regards to Defendant Reed.
B.

First Amendment Claim

Although the Complaint identifies Count One as “Title VII, 42 U.S.C. § 1983

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(Freedom of Association),” Plaintiffs do not mention Title VII in their response and argue
only that the claim seeks relief through § 1983 for violations of the First Amendment.
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(Doc. 9).

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A § 1983 plaintiff seeking relief against a government official who retaliated

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against him in violation of the First Amendment must prove that: “(1) he engaged in

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constitutionally protected activity; (2) as a result, he was subjected to adverse action by

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the defendant that would chill a person of ordinary firmness from continuing to engage in

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protected activity; and (3) there was a substantial causal relationship between the

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constitutionally protected activity and the adverse action.” Blair v. Bethel School Dist.,

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608 F.3d 540, 543 (9th Cir. 2010). Defendant Reed does not dispute that Plaintiffs’

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complaints about Lieutenant Walls were constitutionally protected activity. Instead she

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argues that Plaintiffs have not pled that there was any substantial causal relationship

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between the constitutionally protected activity and any adverse action taken by Reed.
(Doc. 5 at 5–6).
Plaintiffs state that after they complained about Lieutenant Walls, he wrote a

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memo that included false attacks against them. They claim that the city attorney launched

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an investigation “based upon the false allegations in the complaint lodged by Lieutenant

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Bruce Walls,” and that when the investigation was complete, Defendant Reed “published

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the City of Peoria memorandum, a public document, which contained outright lies about

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the Plaintiffs.” (Doc. 1-1 ¶¶ 17, 20). The complaint states that the investigation was a

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“vicious, retaliatory and unlawful investigation” which the Peoria City Attorney and

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Defendant Reed “conspired to launch.” (Doc. 1-1, ¶ 16). As noted above, however, the

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complaint also states that the investigation was launched by city employees in response to
Walls’s memorandum. (Doc. 1-1 ¶ 17). The allegation that Defendant Reed and the City
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Attorney launched the investigation as part of a conspiracy, rather than in response to Lt.

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Walls’s complaint, is therefore conclusory. The complaint instead provides an “obvious

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alternative explanation” for Reed’s participation in the investigation, from which it is not

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plausible to infer “purposeful, invidious discrimination.” Iqbal, 556 U.S. at 682 (quoting

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Twombly 550 U.S. at 567). There is no non-conclusory allegation tying the Defendant to

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the investigation itself, and therefore the complaint does not properly allege that she

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provided a “substantial causal relationship” between the protected activity and the alleged

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retaliation. Blair, 608 F.3d at 543.
The Ninth Circuit has stated that a plaintiff can show a causal nexus between
protected speech activity and an adverse employment action. It can introduce evidence of

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a “proximity in time between the protected action and the allegedly retaliatory

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employment decision” from which a jury can infer a connection, it can introduce

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evidence that the employer “expressed opposition to his speech, either to him or to

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others,” or it can introduce evidence that the “employer’s proffered explanations for the

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adverse employment action were false and pre-textual.” Coszalter v. City of Salem, 320

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F.3d 968, 977 (9th Cir. 2003). Plaintiffs state that Reed issued a memorandum that

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“contained outright lies.” (Doc. 1-1 ¶ 19). According to the complaint, this memorandum

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was issued after an outside company had conducted an independent investigation

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following Lieutenant Walls’s complaint. (Doc. 1-1 ¶ 18). Plaintiffs note that the

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investigation followed relatively quickly after their complaints, but attribute all of the

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investigative decisions to non-party Steve Kemp, the city attorney, rather than to
Defendant Reed. As noted above, the allegation that Defendant Reed conspired with
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Kemp to initiate and conduct this investigation is conclusory in nature. Plaintiffs state in

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their response that they “have alleged sufficient facts in their Complaint to support a

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plausible claim of retaliation against their constitutionally protected speech.” (Doc. 9).

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Whether or not that statement is true, they have not done so against Defendant Reed.
Claim One against Defendant Reed is dismissed.
The City has not filed a motion to dismiss, and all claims alleged against it
survive.

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CONCLUSION

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Plaintiffs concede that they have failed to file a notice of claim with regards to
Defendant Reed, so all state claims against her are dismissed. The non-conclusory facts

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in the complaint, even accepted as true, do not suggest a causal relationship between

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Plaintiffs’ protected First Amendment activity and the adverse employment action. The

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First Amendment complaint against Defendant Reed is therefore dismissed.

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IT IS THEREFORE ORDERED:
1.

Defendant Reed’s Motion to Dismiss (Doc. 5) is granted, and Defendant

Reed is dismissed from this lawsuit.
2.

All claims against the City survive.

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Dated this 16th day of July, 2012.

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