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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 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, 12 No. CV-12-921-PHX-GMS ORDER Plaintiffs, 13 v. 14 Wynette Reed, individually and in her capacity as City of Peoria Personnel Director; City of Peoria, a municipality, 15 16 Defendants. 17 18 19 20 Pending before the Court is Defendant Reed’s Motion to Dismiss. (Doc. 5). For the reasons stated below, the motion is granted. 21 22 BACKGROUND 23 Plaintiff Lebbon is a police officer employed by the City of Peoria. Plaintiffs 24 Peoria Police Officer’s Association Charities (“PPOAC”) and the Peoria Police Officer’s 25 Association (“PPOA”) are non-profit corporations of which he is a member. (Doc. 1-1 26 27 ¶ 6). Acting in his capacity as president of PPOA, Plaintiff Lebbbon engaged in an 28 adversarial relationship with supervisory employees of Defendant City of Peoria (the 1 “City”). (Doc. 1-1 ¶ 11). In particular, Plaintiff Lebbon had met with Chief Ratcliff of the 2 City’s Police Department regarding Plaintiffs’ claims that Lieutenant Walls of the City’s 3 Police Department had violated the Fair Labor Standards Act (“FLSA”) among other 4 5 laws. According to the Complaint, Lieutenant Walls, in an act of “self-preservation,” 6 wrote a memo to the chief of police defaming Plaintiffs’ character. (Doc. 1-1 ¶ 13). The 7 City thereafter commenced an investigation against Plaintiffs, which culminated when 8 Defendant Reed, the City’s Director of Personnel, published a document “which 9 10 contained outright lies about the Plaintiffs and thereby defamed the good reputation of 11 the Plaintiffs.” (Doc. 1-1 ¶ 19). 12 Plaintiffs filed this suit in Maricopa County Superior Court against the City and 13 14 Reed, seeking damages under 42 U.S.C. § 1983 for violation of their First Amendment 15 rights. (Doc. 1-1). The suit also included various state law claims, including violations of 16 the Arizona Constitution, defamation, and intentional infliction of emotional distress. 17 18 19 (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). 20 21 DISCUSSION I. Legal Standard 22 23 To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil 24 Procedure 12(b)(6), a complaint must contain more than “labels and conclusions” or a 25 “formulaic recitation of the elements of a cause of action”; it must contain factual 26 27 28 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 -2- 1 detailed factual allegations . . . it must plead ‘enough facts to state a claim to relief that is 2 plausible on its face.’” Clemens v. DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 3 2008) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the 4 5 plaintiff pleads factual content that allows the court to draw the reasonable inference that 6 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 663 7 (2009) (citing Twombly, 550 U.S. at 556). The plausibility standard “asks for more than a 8 sheer possibility that a defendant has acted unlawfully.” When a complaint does not 9 10 “permit the court to infer more than the mere possibility of misconduct, the complaint has 11 alleged—but it has not shown—that the pleader is entitled to relief.” Iqbal, 556 U.S. at 12 679 (internal quotation omitted). 13 14 II. Analysis 15 A. State Law Claims 16 Defendant Reed is a public employee, and any person asserting state-law claims 17 18 against a public employee must serve a notice of claim before bringing suit and within 19 280 days of the accrual of the cause of action. Arizona Revised Statutes (“A.R.S.”) § 12- 20 821.01. Plaintiffs concede that they have not served Defendant Reed with a notice of 21 claim, and consent to dismissal of all state-law claims against her. (Doc. 9 at 7). All state- 22 23 24 25 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 26 27 28 (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. -3- 1 (Doc. 9). 2 A § 1983 plaintiff seeking relief against a government official who retaliated 3 against him in violation of the First Amendment must prove that: “(1) he engaged in 4 5 constitutionally protected activity; (2) as a result, he was subjected to adverse action by 6 the defendant that would chill a person of ordinary firmness from continuing to engage in 7 protected activity; and (3) there was a substantial causal relationship between the 8 constitutionally protected activity and the adverse action.” Blair v. Bethel School Dist., 9 10 608 F.3d 540, 543 (9th Cir. 2010). Defendant Reed does not dispute that Plaintiffs’ 11 complaints about Lieutenant Walls were constitutionally protected activity. Instead she 12 argues that Plaintiffs have not pled that there was any substantial causal relationship 13 14 15 16 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 17 18 memo that included false attacks against them. They claim that the city attorney launched 19 an investigation “based upon the false allegations in the complaint lodged by Lieutenant 20 Bruce Walls,” and that when the investigation was complete, Defendant Reed “published 21 the City of Peoria memorandum, a public document, which contained outright lies about 22 23 the Plaintiffs.” (Doc. 1-1 ¶¶ 17, 20). The complaint states that the investigation was a 24 “vicious, retaliatory and unlawful investigation” which the Peoria City Attorney and 25 Defendant Reed “conspired to launch.” (Doc. 1-1, ¶ 16). As noted above, however, the 26 27 28 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 -4- 1 Attorney launched the investigation as part of a conspiracy, rather than in response to Lt. 2 Walls’s complaint, is therefore conclusory. The complaint instead provides an “obvious 3 alternative explanation” for Reed’s participation in the investigation, from which it is not 4 5 plausible to infer “purposeful, invidious discrimination.” Iqbal, 556 U.S. at 682 (quoting 6 Twombly 550 U.S. at 567). There is no non-conclusory allegation tying the Defendant to 7 the investigation itself, and therefore the complaint does not properly allege that she 8 provided a “substantial causal relationship” between the protected activity and the alleged 9 10 11 12 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 13 14 a “proximity in time between the protected action and the allegedly retaliatory 15 employment decision” from which a jury can infer a connection, it can introduce 16 evidence that the employer “expressed opposition to his speech, either to him or to 17 18 others,” or it can introduce evidence that the “employer’s proffered explanations for the 19 adverse employment action were false and pre-textual.” Coszalter v. City of Salem, 320 20 F.3d 968, 977 (9th Cir. 2003). Plaintiffs state that Reed issued a memorandum that 21 “contained outright lies.” (Doc. 1-1 ¶ 19). According to the complaint, this memorandum 22 23 was issued after an outside company had conducted an independent investigation 24 following Lieutenant Walls’s complaint. (Doc. 1-1 ¶ 18). Plaintiffs note that the 25 investigation followed relatively quickly after their complaints, but attribute all of the 26 27 28 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 -5- 1 Kemp to initiate and conduct this investigation is conclusory in nature. Plaintiffs state in 2 their response that they “have alleged sufficient facts in their Complaint to support a 3 plausible claim of retaliation against their constitutionally protected speech.” (Doc. 9). 4 5 6 7 8 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. 9 CONCLUSION 10 11 12 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 13 14 in the complaint, even accepted as true, do not suggest a causal relationship between 15 Plaintiffs’ protected First Amendment activity and the adverse employment action. The 16 First Amendment complaint against Defendant Reed is therefore dismissed. 17 18 19 20 21 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. 22 23 Dated this 16th day of July, 2012. 24 25 26 27 28 -6-

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