Williams v. Trotwood Madison City Schools et al

Filing 12

ENTRY AND ORDER granting 9 Defendant's Partial Motion to Dismiss for Failure to State a Claim. Signed by Judge Thomas M. Rose on 12-7-2016. (de)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

NYRTISTENE WILLIAMS,

Plaintiff,
v.

Case No. 3:16-CV-00207
Judge Thomas M. Rose

TROTWOOD MADISON
CITY SCHOOLS, et al.,

Defendants.

ENTRY AND ORDER GRANTING DEFENDANTS’ PARTIAL MOTION
TO DISMISS PLAINTIFF’S COMPLAINT (DOC. 9)
______________________________________________________________________________
Plaintiff Nyrstistene Williams filed a lawsuit against Trotwood Madison City Schools,
Eddie Sample, Kevin Bell, Tracey Mallory, and Jody McCurdy (collectively “Defendants”) for
violation of §504 of the Rehabilitation Act and First Amendment retaliation. (Doc. 1) Pending
before the Court is Defendants’ Partial Motion to Dismiss Plaintiff’s Complaint. (Doc. 9).
Therein Defendants request the Court dismiss Plaintiff’s asserted First Amendment retaliation
claim for failure to state a claim upon which relief can be granted pursuant to Federal Rule of
Civil Procedure 12(b)(6). Because Plaintiff has not presented sufficient allegations to support a
First Amendment retaliation claim against Defendants, the Court will grant the Partial Motion to
Dismiss.

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I.

Background
When considering a motion to dismiss pursuant to 12(b)(6), a court must construe the

complaint in the light most favorable to the plaintiff and accept all well-pleaded material
allegations as true. Tackett v. M&G Polymers, USA, LLC, 561 F.3d, 478, 488 (6th Cir. 2009).
The complaint includes the following factual allegations:
On or about the time of July 2013, Plaintiff Nyrtistene Williams began working for
Defendant Trotwood Madison City School District as an Intervention Specialist for the fourth
grade at Madison Park Elementary. (Doc. 1, ¶ 10-11). Plaintiff alleges Defendant School
District did not provide her with adequate support to properly educate as required by the
students’ Individual Education Plans (“IEP”). (Id. at ¶ 14).
Plaintiff further alleges several of her students were not being educated in the Least
Restricted Environment (“LRE”) as provided for under the Rehabilitation Act, specifically
Student A. (Id. at ¶ 17). Over the course of a year, Plaintiff allegedly had multiple meetings
with Student A, Student A’s guardian, Student A’s IEP team, as well as Defendants Eddie
Sample, Jody McCurdy, and Tracey Mallory. (Id. at ¶ 18). On one specific occasion, Plaintiff
alleges Defendant Sample requested Plaintiff backdate information regarding Student A’s IEP.
(Id.). Additionally, Plaintiff alleges she was contacted by school counselor Deborah Nunley
regarding a second student, Student B, wherein she was asked to backdate a document in the
student’s records regarding the date of an IEP meeting, which allegedly never took place. (Id. at
¶ 19). Plaintiff alleges she refused to backdate the record and reported Nunley and Defendant
Sample’s behavior to Defendant Superintendent Kevin Bell and Director of Human Resources
Gerald Cox. (Id. at ¶ 20).

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Thereafter, Plaintiff was placed on paid administrative leave and her contract was not
renewed the following year. (Id. at ¶ 22). Plaintiff alleges the reasons for the non-renewal of her
contract were founded on her report of Defendants’ conduct, allegedly in violation of federal
law, her continued advocacy for her students, and for her attention to the needs of her students.
(Id. at ¶ 23). Plaintiff alleges Defendants intentionally did not provide her students adequate
scheduling, equipment, facilities, or other support, to properly teach, consult, coach, or supervise
the instruction of disabled students. (Id. at ¶ 24). Plaintiff alleges that, as a result of her reports
of these incidents, Defendants intentionally retaliated against her. (Id. at ¶ 26).
Plaintiff states two claims for relief in her Complaint. Plaintiff’s first claim is for a
violation of §504 of the Rehabilitation Act. Plaintiff claims she is within the zone of interest of
§504’s requirements for the benefit of her disabled students, that Defendants coerced her to
violate §504, and that Defendants retaliated against her.

Second, Plaintiff asserts a First

Amendment Retaliation claim. She alleges that her statements and complaints regarding her
students’ education were matters of public concern, protected under the First Amendment of the
United States Constitution and through their actions, Defendants allegedly attempted to restrain
Plaintiff’s speech.
II.

Failure to State a Claim – 12(b)(6)
A. Legal Standard
To conclude a plaintiff has failed to state a claim upon which relief can be granted

pursuant to Rule 12(b)(6), “a district court must (1) view the complaint in the light most
favorable to the plaintiff and (2) take all well-pleaded factual allegations as true.” Tackett 561
F.3d at 488. A court, however, need not accept as true the legal assertions of the plaintiff. Id.
Rather, “to survive a motion to dismiss, a complaint must contain (1) ‘enough facts to state a

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claim to relief that is plausible,’ (2) more than ‘a formulaic recitation of a cause of action’s
elements,’ and (3) allegations that suggest a ‘right to relief above a speculative level.’” Id.
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 569, 545, 555 (2007)). In addition to the
complaint, the court “must consider . . . other sources . . . in particular, documents incorporated
into the complaint by reference . . .” Tellabs, Inc. v. Makor Issues & Rights, Ltd, 551 U.S. 308,
322-23 (2007).
B. Analysis
A claim will be dismissed when it does not “contain either direct or inferential allegations
respecting all the material elements necessary to sustain recovery under some viable legal
theory.” Twombly, 550 U.S. at 562 (citation omitted). A court, however, is not required to
accept “legal conclusions” or “conclusory statements” as true. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). Thus, a complaint “should be dismissed for failure to state a claim where ‘it appears
beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief.’” Monette v. Electronic Data Sys. Corp., 90 F.3d 1173, 1189 (6th Cir.
1996) quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
A plaintiff alleging unconstitutional retaliation in violation of the First Amendment’s
guarantee of freedom of speech must establish:
(1) that the plaintiff was engaged in a constitutionally protected
activity; (2) that the defendant’s adverse action caused the plaintiff
to suffer an injury that would likely chill a person of ordinary
firmness from continuing to engage in that activity; and (3) that the
adverse action was motivated at least in part as a response to the
exercise of plaintiff’s constitutional rights.
Bloch v. Ribar, 156 F.3d 673, 678 (6th Cir. 1998).
In order for a government employee’s speech to warrant First Amendment protection, the
employee: (1) must have spoken “as a citizen,” and (2) “must have address[ed] a matter of public
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concern.”

Weisbarth v. Geauga Park Dist., 499 F.3d 538, 542 (6th Cir. 2007) (quoting

McMurphy v. City of Flushing, 802 F.2d 191, 197 (6th Cir. 1986).

However, “[w]hen public

employees make statements pursuant to their official duties; the employees are not speaking as
citizens for First Amendment purposes.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).
Additionally, “even employee speech addressing a matter of public concern is not protected if
made pursuant to the employee’s official duties.” Weisbarth, 499 F.3d at 545 (citing Garcetti,
547 U.S. at 421). If plaintiff’s speech is deemed to be a matter of public concern, the court must
then balance the plaintiff’s free-speech interests against the government’s interest as an
employer. Id. at 145, 149-54; Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).
Where statements are made pursuant to one’s position as a public employee, rather than
as a private citizen, the speech is not entitled to First Amendment Protection. Garcetti v.
Ceballos, 547 U.S. 410, 413 (2006). In Garcetti, the plaintiff, a deputy district attorney, wrote a
disposition memorandum explaining his concerns regarding an affidavit used to obtain a search
warrant. Id. at 410. Thereafter, plaintiff alleged his supervisors retaliated against him based on
the memorandum. Id. The court held that because plaintiff drafted the memorandum pursuant to
his official duties, he was not speaking as a citizen for First Amendment purposes and the
Constitution does not protect communications from employer discipline. Id. at 421-22.
Where a teacher complains to her supervisors regarding classroom conditions, her speech
is not protected under the First Amendment. Fox v. Traverse City Area Pub. Schs. Bd. of Educ.,
605 F.3d 345, 351 (6th Cir. 2010). In Fox, a special education teacher filed a retaliation claim
against her former employer, the school district.

Id. at 345.

Plaintiff was hired under a

probationary contract for two years. Id. At the conclusion of the two years, she was notified her
contract would not be renewed for the following year based on performance deficiencies. Id. In

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turn, plaintiff argued her performance was satisfactory, rather she was terminated for voicing
concerns to her supervisors regarding the size of her teaching caseload. Id. The court concluded
that because plaintiff’s statements were directed solely to her supervisor, they were made as a
public employee rather than a citizen and, therefore do not merit First Amendment protection. Id.
at 348.
In Connick, the Supreme Court described that speech touches upon matters of public
concern where it can “be fairly considered as relating to any matter of political, social, or other
concern of the community.” Connick v. Myers, 461 U.S. 138, 146 (1983). “Whether an
employee’s speech addresses a matter of public concern must be determined by the content,
form, and context of a given statement as revealed by the whole records.” Id. at 147-48. The
Court explained the difference between an employee’s speech that touches upon matters of
public concern and speech that only interests the speaker. The Court held that where speech is
that of particular interest only to the speaker cannot be the basis of a First Amendment retaliation
lawsuit. Id. at 147.
Here, Plaintiff was not speaking as a citizen addressing matters of public concern. When
Plaintiff communicated to her supervisors regarding inadequate support to properly educate, she
was acting within her official employment duties, therefore she was not speaking as a citizen for
First Amendment purposes.

Similar to the Plaintiff in Fox who was dissatisfied with her

classroom size, the subject matter to which Plaintiff alleges she complained to her supervisors
about falls squarely within the duties of her employment as an Intervention Specialist.
Specifically, Plaintiff alleges that she spoke to her supervisors regarding the need for additional
resource room time and that students receiving federal funds under the Rehabilitation Act were
not being educated in the least restrictive environment.

Furthermore, because Plaintiff’s

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complaints were directed exclusively to her supervisors, rather than the general public, they may
not serve as a basis for a First Amendment retaliation claim.
In viewing the complaint in the light most favorable to Plaintiff, and by taking all wellpleaded factual allegations as true, the complaint does not contain, either direct or inferential,
allegations that could support an inference Plaintiff spoke to her supervisors as a citizen
regarding a matter of public concern, and thereafter was retaliated against.

Instead, the

complaint merely alleges Plaintiff communicated with her supervisors regarding her classroom
and employment as an Intervention Specialist. Because these statements were made pursuant to
Plaintiff’s official duties, they are not protected by the First Amendment and as a result may not
stand as a basis for a retaliation claim. Therefore, based on the foregoing, Defendants’ Partial
12(b)(6) Motion to Dismiss is granted.
III.

Conclusion
Because Plaintiff’s alleged communications with her supervisors were not about matters

of public concern, but made pursuant to her official duties as a school employee, they cannot
serve as a basis for a First Amendment retaliation claim. Therefore Plaintiff’s claim does not
contain sufficient factual allegations to state a claim for relief that is plausible on its face.
Defendants’ Partial Motion to Dismiss Plaintiff’s Complaint for failure to state a claim upon
which relief can be granted pursuant to Rule 12(b)(6) is GRANTED.1
DONE and ORDERED in Dayton, Ohio, this Tuesday, November 1, 2016.

s/Thomas M. Rose
_______________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE
1

The Court acknowledges the valuable contribution and assistance of judicial extern Samantha M. D’Anna in
drafting this opinion.

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