Duffy v. Los Banos Unified School District et al

Filing 33

ORDER RE: Defendants' 15 Motion to Dismiss signed by Magistrate Judge Erica P. Grosjean on 10/28/2015. (Martinez, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Plaintiff,

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ORDER RE: DEFENDANTS’ MOTION TO
DISMISS

v.
LOS BANOS UNIFIED SCHOOL
DISTRICT; STEVE TIETJEN; RYAN
HARTSOCH; DANIEL SUTTON; VELI
GURGEN; and DOES 1-10,

(ECF No. 15)

Defendants.

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Case No. 1:15-cv-00423-EPG

MARK DUFFY,

I.

INTRODUCTION
In his Complaint, teacher Mark Duffy (“Plaintiff”) claims he suffered retaliation from

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Defendants, the Los Banos Unified School District, its superintendent, and the principal and vice
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principals of Los Banos High School, for speaking out against the superintendent at a community
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meeting held by the school board. Defendants moved to dismiss on the bases of sovereign
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immunity and qualified immunity. While Defendants are correct that the school district is
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protected by sovereign immunity, they are not correct when it comes to the individuals who
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allegedly retaliated against Plaintiff for his speech at the public meeting.
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Contrary to Defendants‟ argument, the law governing the school officials‟ conduct is

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clearly established. As the U.S. Supreme Court held in Pickering v. Board of Education, 391 U.S.
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563, 572 (1968), “[t]eachers are, as a class, the members of a community most likely to have

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informed and definite opinions . . . [I]t is essential that they be able to speak out freely on such

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questions without fear of retaliat[ion].” The Ninth Circuit has, consequently, repeatedly

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reaffirmed “the importance of allowing teachers to speak out on school matters.” Settlegoode v.

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Portland Pub. Schs., 371 F.3d 503, 514 (9th Cir. 2004); see also Eng v. Cooley, 552 F.3d 1062

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(9th Cir. 2009). While it remains to be seen if Plaintiff can prove his allegations and whether

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Defendants have any valid defense, there is no question that Plaintiff has alleged of violation of

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his First Amendment right to free speech.

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II.

BACKGROUND
This case arises out of statements Plaintiff made at a school board meeting in 2012.

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According to the Complaint, Plaintiff has been employed as an English teacher at Los Banos

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High School in Los Banos, California for nine years. Before the 2012 meeting, Plaintiff received

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positive performance reviews and his students demonstrated success in objective testing metrics.

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He also received “Teacher of the Year” awards from the student body for six out of his first seven

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years as a teacher at the high school. Plaintiff suffered a heart attack in 2008, but returned to work

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with a rest period accommodation.

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In 2007, Defendant Steve Tietjen became superintendent of the Los Banos Unified School

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District (the “School District”). Tietjen was perceived as a “poor administrator and Machiavellian

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who bullied and divided staff.” (Complaint ¶ 11, ECF No. 2.) Tietjen also had a reputation for

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retaliating against those who opposed him by firing, demoting, or transferring teachers who raised

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objections to his decisions.

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In August 2012, Tietjen announced that he would be transferring Daniel Martin, the

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principal of Los Banos High School. Martin, who had been a popular principal at the high school

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for six years, had expressed opposition to Tietjen and was to be transferred to an administrative

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position at the “school bus barn.” Id. at ¶ 12. This transfer was perceived as a demotion; the high

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school position was viewed as a significantly more prestigious post.

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The transfer raised concerns within the community to the point that a community meeting
was convened. The meeting, which was overseen by the Board of the School District, was held on
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August 9, 2012. Many members of the general public, as well as school district employees and

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students, were present at the meeting. The meeting was also televised on the local public access

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channel.

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Plaintiff delivered a speech at the meeting criticizing Tietjen in which he stated that:
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The public should “hold Dr. Tietjen to „the same low standard‟ when his position
came up for review”; and,

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Tietjen was a “punk” who was “bushwacking” Martin;

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Tietjen would “engag[e] in personal attacks,” hold “faculty members‟ jobs over
their heads,” and “encourage[e] faculty members to report one another”;

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Under Tietjen, “fear was „the standard operating procedure‟” of the School District
and “everyone in the district „walked on eggshells‟”;

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“[T]hose who spoke out against Dr. Tietjen did so at their own peril and that
repercussions and intimidation would ensue”;

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Tietjen‟s regime was like “Nazi Germany.”

Id. at ¶ 14. Tietjen was displeased with Plaintiff‟s statements.

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After the meeting, Defendants engaged in a pattern of conduct designed to intimidate and
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harass Plaintiff.1 Specifically:

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Defendants began disciplining Plaintiff for minor issues (while ignoring the same
issues for those who supported Tietjen); and,

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Defendants began monitoring the classes Plaintiff taught and questioned his
students about his teaching practices;

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Defendants rescinded the medical accommodation Plaintiff had received since the
return from his heart attack;

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Defendants transferred Plaintiff out of the Advance Placement English class he
had taught for several years and into a class for students with academic and
behavioral difficulties;

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Defendants began stating that Plaintiff was harassing them after Plaintiff had
several chance encounters with the individual Defendants in and around town.

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In September 2013, Plaintiff suffered a second heart attack. In response, Tietjen launched an

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investigation to determine whether Plaintiff had faked his heart attack. As part of that

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Defendant Ryan Hartsoch became principal of Los Banos High School in November 2012. Defendants Daniel
Sutton and Veli Gurgen are vice principals at Los Banos High School.

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investigation, he sent a school nurse to the emergency room to confirm that Plaintiff had been

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admitted.
Plaintiff received written reprimands shortly thereafter and was accused of “trying to

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intimidate” Defendants Sutton and Gurgen multiple times over the next two months. Defendant

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Hartsoch also claimed that Plaintiff “harassed and followed” him over the Thanksgiving holiday

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in November 2013, although Plaintiff was out of town. In December 2013, Plaintiff received a 15

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day unpaid suspension.

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On June 30, 2014, Defendants filed a petition for a workplace violence restraining order
seeking protection for Defendant Hartsoch and his family. A temporary restraining order was

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granted on July 1, 2014 and Defendants served Plaintiff with a notice of unprofessional conduct

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on July 11, 2014. The notice advised Plaintiff that his employment would be terminated if his

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conduct did not improve in the next 45 days.2 On July 22, 2014, Merced County Superior Court

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issued a restraining order protecting Defendant Hartsoch from Plaintiff, purportedly based on

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evidence manufactured by Defendants. Defendants publicized the restraining order in local media

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outlets.

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On October 9, 2014, Defendants informed Plaintiff that he would be administratively

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terminated effective October 22, 2014 for exhausting his family medical leave. On October 17,

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2014, Plaintiff was placed on paid administrative leave and was prohibited from contacting any

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School District employees, students, or parents of students. On October 31, 2014, the School

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District contacted Plaintiff and informed him that he would be required to sit for an interview on

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November 6, 2014 as part of an investigation into his “misconduct.” Plaintiff refused.

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On November 8, 2014, Tietjen claimed in local media outlets that Plaintiff had sent

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harassing letters to Tietjen‟s wife. Plaintiff alleges that this was done to influence the outcome of

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elections to the Los Banos Unified School District Board, whose support Tietjen relied upon for

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his position. On November 28, 2014, Defendants informed Plaintiff that his employment would

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be terminated based on their investigation. Defendants once again informed local media. Plaintiff

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Plaintiff was on medical leave at this time.

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contends that the “misconduct” alleged in the termination notice is wholly fabricated. Defendants

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served Plaintiff with a second notice of intended termination on December 19, 2014.

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Plaintiff now alleges three causes of action against Defendants:
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First Cause of Action (against Defendants Tietjen, Hartsoch, Sutton, and Gurgen),
alleging retaliation for the exercise of Plaintiff‟s First Amendment rights under 42
U.S.C. § 1983;

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Second Cause of Action (against Defendant Los Banos Unified School District),
alleging Monell liability under 42 U.S.C. § 1983; and,

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Third Cause of Action (against Defendant Los Banos Unified School District), for
injunctive relief under 28 U.S.C. § 2201.

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On May 19, 2015, Defendants Los Banos Unified School District, Steve Tietjen, Ryan

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Hartsoch, Daniel Sutton, and Veli Gurgen (“Defendants”) filed a Motion to Dismiss Plaintiffs‟

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Complaint pursuant to Federal Rules of Civil Procedure 12 (b)(1) and 12(b)(6) (the “Motion”).

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(ECF No. 15.) Plaintiff Mark Duffy filed a timely opposition to the Motion.

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The Court has reviewed the papers and determined that this matter is suitable for decision
without oral argument pursuant to Local Rule 230(g).
After a review of the pleadings and the for the reasons set forth below, Defendants‟

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Motion is GRANTED IN PART and DENIED IN PART.

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III.

LEGAL STANDARDS

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Defendants state that the Motion is brought under Federal Rules of Civil Procedure

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12(b)(2) and 12(b)(6) and the Motion provides the legal standard for a motion to dismiss based on

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a factual challenge under Federal Rule of Civil Procedure 12(b)(1), but the issues raised by the

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Motion—sovereign immunity and qualified immunity—are properly brought under Rule 12(b)(1)

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and Rule 12(b)(6), respectively. Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015); Jensen v.

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City of Oxnard, 145 F.3d 1078, 1082 (9th Cir. 1998). Because Defendants‟ 12(b)(1) Motion is a

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facial challenge to the Court‟s subject matter jurisdiction, rather than a factual challenge, the

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Court applies the 12(b)(6) legal standard. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014)

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(“The district court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6):

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Accepting the plaintiff‟s allegations as true and drawing all reasonable inferences in the plaintiff‟s

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favor, the court determines whether the allegations are sufficient as a legal matter to invoke the
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court‟s jurisdiction”).

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To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must plead “only enough

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facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

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544, 570 (2007). This “plausibility standard,” however, “asks for more than a sheer possibility

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that a defendant has acted unlawfully,” and “[w]here a complaint pleads facts that are „merely

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consistent with‟ a defendant‟s liability, it „stops short of the line between possibility and

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plausibility of entitlement to relief.‟” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court must

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“accept all factual allegations in the complaint as true and construe the pleadings in the light most

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favorable to the nonmoving party.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d

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895, 899-900 (9th Cir. 2007). Legally conclusory statements, when unsupported by actual factual

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allegations, need not be accepted. Ashcroft, 556 U.S. at 678-79.

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IV.

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DISCUSSION
Defendants assert that portions of the Complaint should be dismissed on two grounds.

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First, they argue that both of Plaintiff‟s § 1983 claims (the first two causes of action) are barred

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by sovereign immunity created by the Eleventh Amendment to the U.S. Constitution. Second,

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they claim that Defendants Tietjen, Hartsoch, Sutton, and Gurgen should be protected by

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qualified immunity because Plaintiff did not enjoy a right “to be free from increased supervision

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and possible termination after making shocking public statements likening the school

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superintendent to Adolf Hitler.” (Motion to Dismiss 6:11-12, ECF No. 16.)

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A. Eleventh Amendment Sovereign Immunity
The Eleventh Amendment “prohibits actions for damages against state agencies when

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Congress has failed to express a contrary intent.” Belanger v. Madera Unified Sch. Dist., 963 F.2d

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248, 250 (9th Cir. 1992), citing Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 242 (1985). In

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California, school districts are “state agencies” within the definition of the Eleventh Amendment.

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Id. at 254. This bar does not, however, apply to “suits to impose „individual and personal liability‟

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on state officials under § 1983.” Hafer v. Melo, 502 U.S. 21, 31 (1991). Nor does it apply to suits

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for prospective declaratory and injunctive relief against state officials sued in their official

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capacities. Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1045 (9th Cir.
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2000) (“courts have recognized an exception to the Eleventh Amendment bar for suits for

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prospective declaratory and injunctive relief against state officers, sued in their official capacities,

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to enjoin an alleged ongoing violation of federal law”).
Plaintiff concedes that the School District “is a state agency for purposes of retrospective

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damages suits” and acknowledges that the damage claim against the School District “is now

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subject to dismissal.” (Opposition to Motion to Dismiss ¶5, ECF No. 23.) Plaintiff‟s Second

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Cause of Action, a Monell claim for compensatory damages against the School District, must thus

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be dismissed.
Defendants are incorrect, however, that Plaintiff‟s First Cause of Action, alleging First

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Amendment retaliation, should be similarly barred. The Eleventh Amendment does not bar

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actions against state officials sued in their individual capacities. Hafer, 502 U.S. at 31. Each of

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the targets of the First Cause of Action—Tietjen, Hartsoch, Sutton, and Gurgen—is being sued in

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their individual capacities. (Complaint ¶¶ 5-8, ECF No. 2.) Plaintiff‟s First Cause of Action may

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thus proceed, even in the face of the School District‟s sovereign immunity.

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B. Qualified Immunity
Defendants next argue that Plaintiff‟s First Cause of Action is barred because the

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individual Defendants are protected by qualified immunity. A public official acting within the

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scope of her employment receives qualified immunity unless her conduct violates “clearly

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established statutory or constitutional rights of which a reasonable person would have known.”

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Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Fogel v. Collins, 531 F.3d 824, 829 (9th Cir.

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2008). If such an official receives qualified immunity, she is afforded absolute immunity from a

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law suit challenging those actions. See Saucier v. Katz, 533 U.S. 194, 200-201 (2001), overruled

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on other grounds by Pearson v. Callahan, 555 U.S. 223, 242 (2009) (qualified immunity affords

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“an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is

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effectively lost if a case is erroneously permitted to go to trial”) (emphasis in original). The

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central intent behind qualified immunity is to provide “ample protection to all but the plainly

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incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341

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(1986).
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To determine whether an official is protected by qualified immunity, courts must ask: (1)

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whether “the facts the plaintiff alleges show a violation of a constitutional right”; and, (2) whether

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that right was “‟clearly established‟ at the time of the alleged misconduct.” Carillo v. Cnty. of Los

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Angeles, 798 F.3d 1210, 1218 (9th Cir. 2015), citing City & Cnty. of San Francisco v. Sheehan,

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___ U.S. ___, 135 S.Ct. 1765, 1774 (2015) (“An officer cannot be said to have violated a clearly

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established right unless the right's contours were sufficiently definite that any reasonable official

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in his shoes would have understood that he was violating it, meaning that existing precedent

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placed the statutory or constitutional question beyond debate”). If the public official violated a

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clearly established constitutional right, she does not receive qualified immunity for her actions.

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1. The right was clearly established at the time of the alleged misconduct.

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The First Amendment embodies a “profound national commitment to the principle that

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debate on public issues should be uninhibited, robust, and wide-open, and that it may well include

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vehement, caustic, and sometimes unpleasantly sharp attacks on government and public

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officials.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), citing Whitney v.

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California, 274 U.S. 357, 375-376 (1927) (“Those who won our independence believed . . . that

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order cannot be secured merely through fear of punishment for its infraction; that it is hazardous

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to discourage thought, hope and imagination; that fear breeds repression; that repression breeds

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hate; that hate menaces stable government; that the path of safety lies in the opportunity to

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discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil

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counsels is good ones”).

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The U.S. Supreme Court long ago established that teachers enjoy the First Amendment

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right to “comment on matters of public interest in connection with the operation of the public

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schools in which they work.” Pickering v. Bd. of Ed. of Twp. High Sch. Dist., 391 U.S. 563, 568

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(1968). The Ninth Circuit Court of Appeals has repeatedly agreed with this application of the

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First Amendment to educators. Settlegoode v. Portland Pub. Schs., 371 F.3d 503, 514 (9th Cir.

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2004) (“We have long recognized „the importance of allowing teachers to speak out on school

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matters,‟ because „[t]eachers are, as a class, the members of a community most likely to have

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informed and definite opinions‟ on such matters”); Lambert v. Richard, 59 F.3d 134 (9th Cir.
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1995) (fact that library supervisor “treated employees in an abusive and intimidating manner”

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implicated employee‟s “Constitutional right—and perhaps a civic duty” to give speech criticizing

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supervisor in public forum); see also Eng v. Cooley, 552 F.3d 1062, 1075 (9th Cir. 2009) (“There

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could be no confusion, however, that when Eng „comment[ed] upon matters of public concern‟

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„as a citizen‟ and not pursuant to his job responsibilities, his speech was protected by the First

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Amendment—that rule had long been the law of the land”) (emphasis in original).

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Defendants contend that there is no clearly established right to “be free from increased

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supervision and possible termination after making shocking public statements likening the school

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superintendent to Adolf Hitler.” (Motion to Dismiss 6:11-12, ECF No. 16.) But such a framing of

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Plaintiff‟s allegations is misleading and does not address the underlying issue. Case law expressly

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protects the First Amendment rights of educators to criticize their superiors, particularly when it

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occurs at the appropriate time and place (i.e., a public school board meeting). Lewis v. Harrison

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Sch. Dist. No. 1, 805 F.2d 310, 316 (8th Cir. 1986) (“The public and all teachers had a right to be

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informed over these events. Speech is not unprotected under the Constitution just because it is

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critical, even when its criticism is bluntly worded and directed at specific governmental

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officials”).

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Defendants also cite a number of cases for the proposition that employers do not violate

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educators‟ First Amendment rights by disciplining them for racist or anti-Semitic comments made

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in public. (Motion to Dismiss 7:12-8:3, ECF No. 16, citing Jeffries v. Harleston, 52 F.3d 9 (2d

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Cir. 1994); Locurto v. Giuliani, 447 F.3d 159, 183 (2d Cir. 2006); Pappas v. Giuliani, 290 F.3d

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143, 145 (2d Cir. 2002).) But there is a distinction between invidiously discriminatory comments

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directed at an entire ethnic or religious group and critical comments directed at the management

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style of a particular individual. Even if there is no clearly established right to make the former, the

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latter falls within the realm of First Amendment protection. Settlegoode v. Portland Pub. Schs.,

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371 F.3d 503, 514 (9th Cir. 2004), citing Connick v. Myers, 461 U.S. 138, 162 (1983).

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2. The facts alleged show a violation of a constitutional right.

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Plaintiff has also adequately alleged a violation of his First Amendment rights. To find a

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claim for a violation of First Amendment rights under a theory of retaliation, the Court must
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examine: “(1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff

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spoke as a private citizen or public employee; (3) whether the plaintiff's protected speech was a

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substantial or motivating factor in the adverse employment action; (4) whether the state had an

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adequate justification for treating the employee differently from other members of the

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general public; and (5) whether the state would have taken the adverse employment action even

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absent the protected speech.” Dahlia v. Rodriguez, 735 F.3d 1060, 1067 (9th Cir. 2013); see also

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Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003) (reformulating the elements to say

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that “an employee must show (1) that he or she engaged in protected speech; (2) that the

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employer took „adverse employment action‟; and (3) that his or her speech was a „substantial or

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motivating‟ factor of the adverse employment action”).
Some of these factors may rely on questions of fact that have not yet been resolved or

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explored at this stage in the litigation. In particular, (4) and (5) will turn on evidence put forward

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by Defendants. Because Defendants have chosen to assert qualified immunity in a motion to

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dismiss under Rule 12(b)(6), however, the Court must construe all factual allegations as true and

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in favor of Plaintiff. There are inadequate facts in the Complaint to suggest either that: (1)

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Defendants had a legitimate, non-retaliatory reason for subjecting Plaintiff to adverse

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employment actions; or (2) Defendants had an adequate (and legitimate) justification for treating

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Plaintiff differently from other members of the public. As a result, the Court will only consider

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the first three factors in deciding whether a constitutional violation has occurred.

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Here, Plaintiff has adequately alleged that he spoke on a topic of public concern at the

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August 2012 school board meeting, which was convened for the purpose of public comment.

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Comments by educators about “whether students are receiving the type of attention and education

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that they deserve” are of public importance. Settlegoode, 371 F.3d at 514 (“Whether or not

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Settlegoode‟s assertions were accurate, or were communicated in the best manner possible, it is

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clear that the subject matter of her expression was of public importance”). Even comments critical

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of school personnel decisions or criticizing school leadership are matters of public concern.

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Lewis, 805 F.2d at 314 (“The superintendent of schools was proposing to transfer a teacher and

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varsity coach. Because teachers and coaches in a public school district can deeply impact
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children‟s lives, school personnel assignments obviously are of considerable concern to those

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children, their parents, and others in the community”); Wasson v. Sonoma Cnty. Jr. Coll. Dist., 4

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F.Supp.2d 893, 904 (N.D. Cal. 1997) (“The letters for which Wasson was disciplined comment

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upon Agrella‟s fitness to be president of the college, a matter that is clearly of public concern”).

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Here Plaintiff alleges that his comments occurred at a public community meeting convened by the

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school board to discuss the impending transfer of an “extremely popular and effective principal”

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from Los Banos High School. (Complaint ¶ 12, ECF No. 2.) Because the transfer--and Tietjen,

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the individual responsible for the transfer--were subjects of public concern, the Court sees little

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reason that Plaintiff‟s comments on those topics should be considered otherwise.

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Similarly, the facts alleged indicate that Plaintiff was speaking in his capacity as a private

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citizen, rather than as a public employee, at the August 2012 meeting. No facts in the Complaint

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indicate that Plaintiff was required to appear at the meeting, which was open to the general

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public, as part of his job duties, nor was he ever instructed by any supervisors to appear at the

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meeting. Moreover, the allegations that Plaintiff was harassed by his supervisors after his speech

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strongly suggest that his speech was not in the fulfillment of his job duties. Dahlia, 735 F.3d at

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1075 (“the fact that an employee is threatened or harassed by his superiors for engaging in a

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particular type of speech provides strong evidence that the act of speech was not, as a „practical‟

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matter, within the employee‟s job duties”), citing Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).

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The allegations in the Complaint are also adequate to conclude that Plaintiff suffered

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adverse employment actions and that his protected activity was a substantial or motivating factor

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in those actions. Plaintiff alleges that, among other things, he was reassigned to teach a less

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desirable course, placed on unpaid suspension, and served with multiple notices of his termination

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after his speech at the August 2012 meeting. Any of these would be sufficient to demonstrate that

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Plaintiff has suffered an adverse employment action. Burlington N. & Santa Fe Ry. Co. v. White,

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548 U.S. 53 (2006) (“the EEOC has consistently found „[r]etaliatory work assignments‟ to be a

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classic and „widely recognized‟ example of „forbidden retaliation‟”); Raad v. Fairbanks N. Star

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Borough Sch. Dist., 323 F.3d 1185, 1196 (9th Cir. 2003) (teacher “suffered an adverse

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employment action when the District issued its disciplinary suspension”); Coszalter v. City of
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Salem, 320 F.3d 968, 976-977 (9th Cir. 2003) (adopting EEOC guidelines to define “adverse

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employment action” and applying those guidelines to find that “some, perhaps all, of the

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following acts, considered individually, were adverse employment actions for purposes of

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plaintiffs‟ First Amendment retaliation suit: the transfer to new duties (# 2); an unwarranted

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disciplinary investigation (# 4); an unwarranted assignment of blame (# 6); a reprimand

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containing a false accusation (# 8); a criminal investigation (# 15); repeated and ongoing verbal

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harassment and humiliation (# 15); the circulation of a petition at the encouragement of

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management (# 16); a ten-day suspension from work (# 17); a threat of disciplinary action (# 20);

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an unpleasant work assignment (# 21); a withholding of customary public recognition (# 26); an

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unwarranted disciplinary action (# 30); and two consecutive ninety-day “special” reviews of work

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quality (# 29 and # 31)”).

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Finally, Plaintiff has adequately alleged that his protected speech was a substantial or

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motivating factor in the adverse employment actions. Prevailing case law has held that plaintiffs

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may “show that retaliation was a substantial or motivating factor behind a defendant‟s adverse

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employment actions” by, among other things: (1) “introduc[ing] evidence regarding the

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„proximity in time between the protected action and the allegedly retaliatory employment

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decision‟”; (2) “introduc[ing] evidence that „his employer expressed opposition to his speech”; or,

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(3) “introduc[ing] evidence that „his employer‟s proffered explanations for the adverse

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employment action were false and pre-textual.‟” Coszalter, 320 F.3d at 977, quoting Keyser v.

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Sacramento City Unified Sch. Dist., 265 F.3d 741, 751 (9th Cir. 2001). Plaintiff has alleged all

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three in the Complaint: the adverse employment actions began shortly following his speech at the

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August 2012 meeting, Defendant Tietjen was “visibly enraged” by Plaintiff‟s speech, and

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Defendants “trumped up allegations” of harassment against Plaintiff. (Complaint ¶¶ 15, 16, 17,

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ECF No. 2.) Indeed, rather than contest the allegations that the adverse employment actions were

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the result of Plaintiff‟s protected activity, Defendants argue that they should have retaliated even

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further against Plaintiff. (Motion to Dismiss 8:6-11 (“. . . any reasonable school official would

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have every reason to believe that increasing supervision of a teacher who publicly likened school

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officials to Adolf Hitler and unabashedly stated discontent for school officials in a small town
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using „colorful and challenging‟ language on multiple occasions would not only be appropriate,

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but that more severe punishment, such as termination, was likely warranted”), ECF No. 16.)

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Plaintiff has sufficiently alleged a violation of his First Amendment rights. Accepting all

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allegations as true, he has also demonstrated that his rights, as alleged, were clearly established

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and that Defendants are not entitled to qualified immunity. In at least one case, the Ninth Circuit

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Court of Appeals has found similarly. In Lambert v. Richard, 59 F.3d 134 (9th Cir. 1995),

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plaintiff was an employee of the public library system in Santa Ana, California. Plaintiff appeared

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at a local city council meeting and delivered a speech that was sharply critical of defendant, the

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Library Director who managed the public library system. In her speech, she told everyone present

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at the meeting that the library was “barely” functioning and that the employees at the library were

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performing their duties “devoid of zest, with leaden hearts and wooden hands,” as a result of

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defendant‟s leadership. Id. at 136.

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Shortly after plaintiff‟s speech, the defendant in Lambert issued a letter of reprimand to

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plaintiff. Plaintiff sued, alleging that her First Amendment rights had been violated and that she

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had been subjected to retaliatory treatment for her protected speech. In evaluating plaintiff‟s

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claims, the Ninth Circuit easily concluded that plaintiff‟s remarks were “clearly protected” and

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that defendant was “not entitled to qualified immunity.” Id. at 137. Citing the public nature of the

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forum in which plaintiff gave the speech, the contents of her criticism, and the importance of the

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information she was providing to the public, the court held that a reasonable public official

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“would have recognized that [his] conduct was unlawful.” Id.

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The Court sees little reason to depart from the Lambert court‟s reasoning and finds that

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reasonable public officials in Defendants‟ positions would have recognized that the conduct

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alleged in the Complaint was unlawful. Defendants are not entitled to qualified immunity.

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C. Declaratory Relief
Defendants argue that Plaintiff‟s Third Cause of Action, requesting declaratory judgment,

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is predicated solely on Plaintiff‟s § 1983 claims. Because those claims are barred by sovereign

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and qualified immunity, Defendants assert, the Third Cause of Action must be dismissed, as well.

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As explained above, however, at least one of the § 1983 claims survives Defendants‟ qualified
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and sovereign immunity challenges. Moreover, even sovereign immunity, which applied to

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Plaintiff‟s Second Cause of Action, does not preclude a claim for declaratory judgment. Nat’l

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Audubon Soc., Inc. v. Davis, 307 F.3d 835, 847 (9th Cir. 2002) (“we have long held that the

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Eleventh Amendment does not generally bar declaratory judgment actions against state officers”).

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Plaintiff‟s Third Cause of Action thus survives the Motion to Dismiss.

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V.

ORDER
For the reasons set forth above, the Court GRANTS IN PART and DENIES IN PART

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Defendants‟ Motion to Dismiss the Complaint (ECF No. 15). Accordingly, IT IS HEREBY

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ORDERED:
1) Defendants‟ Motion to Dismiss Plaintiff‟s First Cause of Action (alleging

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retaliation for the exercise of Plaintiff‟s First Amendment rights under 42 U.S.C. §

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1983) is DENIED;
2) Defendants‟ Motion to Dismiss Plaintiff‟s Second Cause of Action (alleging

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Monell liability under 42 U.S.C. § 1983) is GRANTED;
3) Defendants‟ Motion to Dismiss Plaintiff‟s Third Cause of Action (for declaratory

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relief under 28 U.S.C. § 2201) is DENIED.

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IT IS SO ORDERED.

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Dated:
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October 28, 2015

/s/
UNITED STATES MAGISTRATE JUDGE

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