SLAY v. HESS et al
Filing
8
ORDER granting 2 Motion to Dismiss for Failure to State a Claim. Plaintiff's Amended Complaint is DISMISSED with prejudice. The Clerk is directed to close this case. Signed by JUDGE RICHARD SMOAK on 11/6/2014. (jcw)
Page 1 of 6
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
TAMMY SLAY,
Plaintiff,
v.
CASE NO. 5:14-cv-264-RS-GRJ
GLENN HESS, et al.,
Defendants.
_________________________________/
ORDER
Before me are Defendants’ Motion to Dismiss Amended Complaint (Doc.
2), and Plaintiff’s Memorandum in Opposition (Doc. 7). The relief requested in
Defendants’ Motion to Dismiss Amended Complaint (Doc. 2) is GRANTED.
STANDARD OF REVIEW
To overcome a motion to dismiss, a plaintiff must allege sufficient facts to
state a claim for relief that is plausible on its face. See Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007). Granting a motion to dismiss is appropriate if it is
clear that no relief could be granted under any set of facts that could be proven
consistent with the allegations of the complaint. Hishon v. King & Spalding, 467
U.S. 69, 104 S. Ct. 2229, 2232 (1984).
The Supreme Court has clarified the specificity of pleading required to
survive a motion to dismiss:
Page 2 of 6
Federal Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is entitled to
relief.” Specific facts are not necessary; the statement need only
“‘give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)).
Erickson v. Pardus, 551 U.S. 89, 93 (2007). A complaint thus “does not need
detailed factual allegations.” Bell Atlantic Corp., 550 U.S. at 555.
On the other hand, a conclusory recitation of the elements of a cause of
action is insufficient. A complaint must include more than “labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Bell Atlantic Corp., 550 U.S. at 555. A complaint must include “allegations
plausibly suggesting (not merely consistent with)” the plaintiff’s entitlement to
relief. Id. at 557.
BACKGROUND
While considering a motion to dismiss, I must construe all allegations in the
complaint as true and in the light most favorable to the plaintiff. Shands Teaching
Hosp. and Clinics, Inc. v. Beech Street Corp., 208 F.3d 1308, 1310 (11th Cir.
2000) (citing Lowell v. American Cyanamid Co., 177 F.3d 1228, 1229 (11th Cir.
1999)).
In Plaintiff’s Amended Complaint, Plaintiff alleges that from March 1997 to
October 2013, Plaintiff worked as a Victim Advocate for the State Attorney
Page 3 of 6
Office. Doc. 1. According to Plaintiff, in November 2012, an email was sent to the
Victim Advocates for the entire 14th Judicial Circuit, informing them that their
timesheets needed to reflect 100% time spent on the VOCA Grant. Id. Despite this
direction, Plaintiff refused to reflect that 100% of her time was spent on the grant.
Id.
Plaintiff alleges that subsequent to the November email, a non-party
employee from Defendants’ business office wrote on her timesheet1, and on March
27, 2013, this employee sent Plaintiff another email requesting that she certify that
she had spent 100% of her time on the VOCA Grant. Id. In response, Plaintiff
communicated her concerns about being asked to falsify her timesheets, and
requested an opportunity to speak to Defendant Wilson about the issue. Id.
On April 2, 2013, Plaintiff and Defendant Wilson had a telephone meeting.
Id. During that phone meeting, Plaintiff again discussed concerns about being
asked to falsely represent the amount of time she spent working on the VOCA
Grant. Id. According to Plaintiff, Defendant Wilson made the statement during the
meeting that perhaps Washington County did not need a full time Victim
Advocate. Id.
Plaintiff continued to indicate on her timesheets that she was working only
75% on the VOCA Grant. Id. Then, about six months after the phone meeting,
1
In Plaintiff’s Amended Complaint, Plaintiff does not allege what was written on her timesheet,
just that there was writing. Doc. 1.
Page 4 of 6
Plaintiff was informed that the Washington County Victim Advocate position was
being eliminated. Id. Defendants informed her that she could transfer to the Bay
County office as their new Victim Advocate, or she could stay in Washington
County as a receptionist and take a $7,000 cut in pay. Id. In October 2013,
Plaintiff resigned. Id.
ANALYSIS
In Defendants’ motion to dismiss, Defendants argue that Plaintiff cannot
establish a prima facie case of First Amendment retaliation. Doc. 2. Alternatively,
Defendants claim they are entitled to qualified immunity. Id. In response, Plaintiff
claims she has established a prima facie case of First Amendment retaliation. Doc.
7.
In Boyce v. Andrew, the Eleventh Circuit articulated the elements required
for a plaintiff employed by the government to establish a prima facie case of a First
Amendment violation. Boyce v. Andrew, 510 F.3d 1333, 1341-42 (11th Cir. 2007).
First, the employee must have spoken as a citizen rather than a public employee.
Id. Second, the main thrust of the speech must address matters of public concern
and not about matters of private concern. Id. Although the Supreme Court of the
United States has clearly established that public employment cannot be
conditioned on a basis that infringes on an employees’ First Amendment right to
freedom of expression, “. . . when public employees make statements pursuant to
Page 5 of 6
their official duties, the employees are not speaking as citizens for First
Amendment purposes, and the Constitution does not insulate their communications
from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951,
1960, 164 L.Ed.2d 689 (2006).
To determine the first prong, a District Court must identify the purpose of
the employee’s speech – “whether she spoke on behalf of the public as a citizen, or
whether the employee spoke for herself as an employee.” Boyce, 510 F.3d at 1343.
A public employee speaks as an employee if the speech “relates to his or her job as
opposed to an issue of public concern[.]” Id. Thus, speech is not protected by the
First Amendment if the employee makes the statement about her official duties.
See Garcetti, 547 U.S. 410. In order to determine if a statement is made pursuant to
an employee’s official duties, I must consider “the content, form, and context of a
given statement . . . .” Boyce, 510 F.3d at 1343 (citing Connick v. Myers, 461 U.S.
138, 147–48 (1983)).
In Plaintiff’s Amended Complaint, Plaintiff alleges that during a phone
meeting with a management employee, Defendant Wilson, she discussed concerns
about being asked to falsify her timesheets in order to reflect that she spent 100%
of her time on the VOCA Grant. Although Plaintiff argues that it was not her job or
within her job duties to report misspending or the improper allocation of wages
under the grant, it was Plaintiff’s job to fill out her timesheets. See doc. 7. A public
Page 6 of 6
employee speaks as an employee, and not as a private citizen, if the speech relates
to her job and addresses matters connected with her job. See Boyce, 510 F.3d at
1343.
Plaintiff’s concerns with filling out her employee timesheet, which she
communicated internally to Defendants, relate and are connected to her job as a
Victim Advocate. Therefore, taking the allegations in the complaint as true,
Plaintiff has failed to establish a prima facie case of First Amendment retaliation.
CONCLUSION
The relief requested in Defendants’ Motion to Dismiss Amended Complaint
(Doc. 2) is GRANTED. Plaintiff’s Amended Complaint is DISMISSED with
prejudice. The Clerk is directed to close this case.
ORDERED on November 6, 2014.
/s/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?