Rowe v. Benjamin et al

Filing 33

ORDER granting 9 Motion to Dismiss without prejudice as to defendant Stephen K. Benjamin Signed by Honorable Joseph F Anderson, Jr on 10/25/12.(mflo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
COLUMBIA DIVISION
Peter J. Rowe,

C/A No.: 3:12-cv-01201-JFA
Plaintiff,

vs.

ORDER ON MOTION TO DISMISS

Stephen K. Benjamin, Larry Knightner,
Jacqueline Roundtree, and Bernie Mazyck,
Defendants.

This matter comes before the Court on defendant Stephen K. Benjamin’s motion to
dismiss under Rule 12(b)(6).

(ECF No. 9).

The Court has reviewed the record and the

memoranda of counsel and considered the arguments presented at a hearing held on September
4, 2012. For the reasons set forth below, the defendant’s motion to dismiss is granted.
I.

FACTUAL AND PROCEDURAL HISTORY
The following facts set forth in the complaint are taken as true for the purpose of this

motion.

Plaintiff Peter J. Rowe worked as the Director of Community Planning and

Development in the Columbia Field Office of the United States Department of Housing and
Urban Development (HUD) between December of 2010 and November of 2011.

His job

involved administering approximately $170 million in HUD funds dispersed through various
community planning and development programs in South Carolina.

In the course of his

employment, however, Rowe identified waste, possible misappropriation, and abuse of the
federal funds disbursed to the City of Columbia (the City). Rowe repeatedly brought these
irregularities to the attention of appropriate HUD employees, including defendant Larry
Knightner, the Director of the Columbia Field Office, and defendant Jacqueline Roundtree, the
Director in Chief of Labor Relations at HUD. According to Rowe, HUD employees did nothing
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to address his concerns and in fact implied that he should terminate his investigation into the
City. Rowe further sought a forensic audit of HUD funds disbursed to the City, also to no avail.
In one particular incident, “[i]n his job as the Director of Community Planning and
Development,” Rowe determined that certain HUD funds allocated to a project known as “The
Village at River’s Edge” (River’s Edge project) were unaccounted for or were the subject of an
investigation. Defendant Benjamin, the elected mayor of the City, was an investor and initial
developer of this project.

In April of 2011, defendant Knightner indicated to Rowe that

Knightner had received a call asking why Rowe was “picking on Columbia’s first minority
mayor.” Knightner threatened that Rowe should “lay off Columbia or else,” indicating that he
was passing on the threat “from a high level official with the City of Columbia.” Rowe alleges
that this high level official was Benjamin. Also, both defendant Roundtree and defendant
Mazyck, the President of the South Carolina Association of Community Development
Corporations, threatened Rowe’s employment and family after this incident.
At about the same time, HUD determined that a large sum disbursed to the City for a
Community Development Block Grant (CDBG) had not been spent in a timely fashion, and as a
result HUD indicated that it would reduce future funding as a penalty. The City and defendant
Benjamin argued to HUD that the failure to timely spend funds was beyond the City’s control
and could not have been prevented, but Rowe stated in a letter to HUD that the opposite was
true. Rowe detailed additional irregularities in the use of HUD funding in this letter. The threat
of losing funding prompted Benjamin and other City officials to travel to Washington, D.C. to
confer with HUD in an attempt to stop the reduction. Rowe participated in the conference by
telephone and heard Benjamin inform HUD that the City had in fact planned to spend the large
sum on the River’s Edge project.

Rowe believed this to be inappropriate because other,

previously disbursed HUD funds were allocated for this project.
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In addition to voicing his concerns to HUD employees, Rowe states that he complained
to others outside his “jurisdiction,” including to City employees and to the public. For example,
Rowe notified the City that federal CDBG funds were being used improperly to pay internal
salaries of City Community Development staff. Also, at “public speaking engagements,” Rowe
told attendees that certain missing and potentially misappropriated funds may deprive needy
citizens of affordable housing. Moreover, Rowe held “numerous conversations with third parties
including private citizens and high level state employees” regarding his concerns.
In November of 2011, HUD terminated Rowe’s employment, ostensibly based on
“disrespectful and confrontational” behavior toward members of his staff and on alleged threats
made to a subordinate.

However, Rowe alleges that this basis was a pretext for the real

motivation behind his firing: to halt his investigation and silence his exposure of waste and
potential misappropriation of HUD funds administered within the City.

Rowe claims that

because of Rowe’s internal and external efforts to uncover and document waste with regard to
HUD funds disbursed to the City, defendant Benjamin conspired with the other defendants to
have Rowe terminated from his employment with HUD in violation of his First Amendment
rights.
Rowe filed a complaint in this Court on May 4, 2012, originally asserting claims for civil
conspiracy and violation of his First Amendment rights against Defendants Benjamin, Knightner,
and Roundtree. Rowe also asserted a claim of civil conspiracy against Defendant Mazyck. Each
of the defendants filed motions to dismiss, and the parties stipulated to the dismissal with
prejudice of Rowe’s claims against defendants Knightner, Roundtree, and Mazyck. (See ECF
Nos. 21, 23). Further, the parties stipulated to the dismissal with prejudice of Rowe’s civil
conspiracy claim against Benjamin. (ECF No. 27). Therefore, the sole remaining issue is
whether Rowe’s First Amendment claim against Benjamin may proceed.
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In his motion to dismiss, Benjamin advances two primary arguments as to why the Court
should reject Rowe’s claim.1 First, Benjamin asserts that Rowe has not pleaded facts sufficient
to show an actionable First Amendment claim. Further, Benjamin is a public official—the
elected mayor of the City. Thus, in a second argument, Benjamin asserts that he is entitled to
qualified immunity.
The Court held a hearing on Benjamin’s motion to dismiss on September 4, 2012. Two
important issues argued at this hearing were the viability of Rowe’s First Amendment claim in
light of the United States Supreme Court’s decision in Garcetti v. Ceballos, 547 U.S. 410 (2006),
and whether defendant Benjamin is entitled to qualified immunity as a public official. Following
the hearing, the Court directed the parties to submit supplemental briefing on Garcetti’s
applicability to the allegations of the instant case, including the significance of the fact that
defendant Benjamin is not alleged to have been plaintiff’s employer. The parties also briefed the
question of qualified immunity in light of this fact. (See ECF No. 29).
II.

LEGAL STANDARD
When considering a motion to dismiss under Rule 12(b)(6), courts must accept as true the

facts alleged in the complaint and view them in the light most favorable to the plaintiff.
Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir. 1999). The United States Supreme Court has
stated, however, that “[t]o survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows

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Rowe asserts his First Amendment claim against Benjamin under 42 U.S.C. § 1983, which creates a cause of
action against any person who, acting “under color of” state law, abridges rights created by the Constitution and
laws of the United States. In this regard, Benjamin also asserts that Rowe failed to plead facts sufficient to show
that Benjamin acted under color of state law. Because Rowe’s claim is disposed of on other grounds, however, it is
unnecessary for the Court to address this argument.

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the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. Although “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
need detailed factual allegations,” a pleading that merely offers “labels and conclusions,” or “a
formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
Likewise, “a complaint [will not] suffice if it tenders ‘naked assertion[s]’ devoid of ‘further
factual enhancements.’” Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 557).
Accordingly, Plaintiff must put forth claims that cross “the line from conceivable to plausible.”
Id. at 1950–51 (internal quotation marks omitted).
III.

DISCUSSION
As a general matter, it is well settled that for a public employee to state a claim for First

Amendment retaliation, the employee must show both that his or her speech is protected under
the First Amendment and that the government’s restriction of the speech is justified. The
Supreme Court recently summarized the Court’s precedent in this regard in Garcetti v. Ceballos,
547 U.S. 410 (2006), noting that two inquiries “guide interpretation of the constitutional
protections accorded to public employee speech.” Id. at 418. In particular, the “first requires
determining whether the employee spoke as a citizen on a matter of public concern.” Id.
(emphasis added). If a court answers this inquiry in the negative, “the employee has no First
Amendment cause of action based on his or her employer’s reaction to the speech.”

Id.

However, “[i]f the answer is yes, then the possibility of a First Amendment claim arises. The
question becomes whether the relevant government entity had an adequate justification for
treating the employee differently from any other member of the general public.” Id.
Garcetti considered the question “whether the First Amendment protects a government
employee from discipline based on speech made pursuant to the employee’s official duties.” Id.
at 413. The Supreme Court recognized that “public employees do not surrender all their First
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Amendment rights by reason of their employment” and that “the First Amendment protects a
public employee’s right, in certain circumstances, to speak as a citizen addressing matters of
public concern.” Id. at 417. Still, the Court noted that “[g]overnment employers, like private
employers, need a significant degree of control over their employees’ words and actions; without
it, there would be little chance for the efficient provision of public services.” Id. at 418. In other
words, it is important to both “promote the individual and societal interests that are served when
employees speak as citizens on matters of public concern” and “respect the needs of government
employers attempting to perform their important public functions.” Id. at 420. In light of these
considerations, the Court held that “when public employees make statements pursuant to 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.” Id. at 421.
Thus, Garcetti appears to have clarified the first inquiry set forth above. Specifically, if
the employee speech at issue is made as part of the employee’s job, the employee is not speaking
as a citizen and the speech is not protected. Although Rowe originally disputed that his speech
was made pursuant to his official duties, in his supplemental memorandum on Benjamin’s
motion to dismiss, Rowe now acknowledges this to have been the case. (See ECF No. 32, at p.
5–6, 8–10). As such, the Garcetti holding would appear to readily dispose of Rowe’s First
Amendment retaliation claim because Rowe was not speaking as a citizen, but rather as a public
employee.

Undeterred, Rowe contends that Garcetti does not apply to his case because

Benjamin was not his employer. Said another way, Rowe argues that Garcetti does not apply to
cases where a public employee plaintiff alleges that a non-employer defendant has retaliated
against the plaintiff in violation of the plaintiff’s First Amendment rights.
Rowe cites several cases from outside of the Fourth Circuit as support for his position.
See Leverington v. City of Colorado Springs, 643 F.3d 719, 728–32 (10th Cir. 2011); Fairley v.
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Andrews, 578 F.3d 518, 524 (7th Cir. 2009); Stokes v. City of Mount Vernon, 2012 WL 3536461,
at *6–*7 (S.D.N.Y. Aug. 14, 2012); Leavey v. City of Detroit, 719 F. Supp. 2d 804, 812–13 (E.D.
Mich. 2010), aff’d 467 Fed. App’x 420 (6th Cir. 2012) (unpublished); Lewis v. Mills, 2009 WL
3669745, at *3–*5 (C.D. Ill. Nov. 3, 2009). Generally speaking, these courts have distinguished
or questioned the applicability of Garcetti in cases involving non-employer defendants by
pointing out that the reasoning in Garcetti focuses only on “the justification of a particular
defendant: the government employer” in curtailing speech and that the acts of non-employer
defendants may not have the same justification. Fairley, 578 F.3d at 524. Thus, for example,
the Seventh Circuit noted that “it is conceivable that the Court might hold the same speech ‘not
protected’ vis-à-vis the employer, but ‘protected’ vis-à-vis co-workers.” Id.
Indeed, the cases Rowe cites argue that extending Garcetti’s holding to bar retaliation
claims against non-employer third parties risks giving “such a third party an impermissible veto
over the employer’s personnel or contractual decisions.” Leverington, 643 F.3d at 729; see also
Fairley, 578 F.3d at 524 (noting that if the “plaintiffs’ speech is categorically not protected, any
state actor can punish plaintiffs in any way he wishes without incurring liability under the first
amendment”). Thus, as one court recognized, “the government’s needs as an employer should
not insulate the actions of state actors who do not have an employment relationship with a public
employee asserting a First Amendment violation.” Lewis, 2009 WL 3669745, at *5.
Even if this employer/non-employer distinction is a viable one, however, it is far from
clear that these cases provide Rowe with a cause of action. The only two appellate decisions
which discuss the issue are arguably distinguishable from the instant case. In Leverington, for
example, the speech at issue did not fall within the context of the plaintiff’s job duties. Rather,
the plaintiff was a cardiac nurse for a public hospital, and the speech for which she was allegedly
fired arose from an encounter with a police officer at a traffic stop. Leverington, 643 F.3d at
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722. Further, in Fairley, although the speech was within the context of the plaintiffs’ job duties,
the Seventh Circuit reserved judgment as to whether Garcetti applied to bar the claims against
the non-employer defendants. Fairley, 578 F.3d at 524.
Only the three district court opinions mentioned above found Garcetti inapplicable in
cases involving speech made in the course of the plaintiff’s job duties. See Stokes, 2012 WL
3536461, at *7; Leavey, 719 F. Supp. 2d at 812; Lewis, 2009 WL 3669745, at *5. Moreover, in
an unpublished decision on appeal in one of these cases, the Sixth Circuit Court of Appeals
appeared to decide the case under Garcetti, making no mention of the district court’s
employer/non-employer distinction. Leavey v. City of Detroit, 467 Fed. App’x 420 (6th Cir.
2012). In particular, in affirming the denial of the plaintiff’s First Amendment claims, the court
of appeals discussed Garcetti and noted that even if the plaintiff’s speech was on a matter of
public concern, the plaintiff spoke as an employee and “not as a concerned citizen.” Id. at 427–
29. This provided an independent basis for denying constitutional protection to plaintiff’s
speech. Id. at 429. Thus, these nonbinding authorities provide only limited support for Rowe’s
claim.
Additionally, and apparently contrary to Rowe’s position, an earlier Sixth Circuit opinion
has applied Garcetti to bar a plaintiff’s First Amendment retaliation claim against a nonemployer defendant. See Weisbarth v. Geauga Park Dist., 499 F.3d 538 (6th Cir. 2007). In this
case, a former park ranger sued the county park district and various individual defendants,
including a third party consultant, for retaliation based on comments she made to the consultant
during a departmental evaluation. Id. at 539–40. In reviewing the district court’s dismissal of
the plaintiff’s complaint, the Sixth Circuit emphasized that in order “for a government
employee’s speech to warrant First Amendment protection, the Supreme Court’s Connick and
Pickering decisions have long imposed the threshold requirements that the employee (1) must
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have spoken ‘as a citizen,’ and (2) must have ‘address[ed] matters of public concern.’” Id. at
542. Then, because the plaintiff did not speak as a citizen within the meaning of Garcetti during
her comments to the consultant, id. at 543, the court found that the district court properly
dismissed her complaint, id. at 546.
Notably, in doing so, the court rejected a distinction similar to the one Rowe proposes
here—i.e., that the plaintiff’s speech arose in the context of “addressing inquiries of a third party
consultant hired by her employer.” Id. at 545. The court explained that “the determinative factor
[is] not where the person to whom the employee communicated fit within the employer’s chain
of command, but rather whether the employee communicated pursuant to his or her official
duties.” Id. Acknowledging that “taking action against a public employee for speech made
pursuant to official duties might give rise to antidiscrimination, whistleblower, or labor-contract
claims,” the court affirmed that doing so “does not violate the First Amendment.” Id. at 546. It
likewise makes no difference that the speech is on a matter of public concern. Id. at 546–47.
Furthermore, although the Fourth Circuit does not appear to have squarely addressed this
issue, the court of appeals has suggested in dicta that a public employee plaintiff’s First
Amendment retaliation claim against a non-employer defendant would fail if the plaintiff’s
speech was in the course of her job duties. Campbell v. Galloway, 483 F.3d 258 (4th Cir. 2007).
In Campbell, a female police officer sued both employer and non-employer defendants
(including the chief of police and a fellow officer, respectively) alleging in part that they
retaliated against her for filing sexual harassment complaints. Id. at 265. In determining
whether the plaintiff had demonstrated a violation of her First Amendment rights, the court of
appeals cited Garcetti and noted that “speech made by a public employee pursuant to the
employee’s official duties is not protected by the First Amendment.” Id. at 266 n.3. However,
Garcetti was decided after the trial court proceedings concluded, and the defendants did not
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argue that the plaintiff’s speech was pursuant to her employment duties on appeal. Id. Because
the court of appeals also found that the defendants were entitled to qualified immunity on this
claim, remand for factual development was unnecessary. Id.
Importantly, though, the Fourth Circuit stated that “a determination that her speech was
pursuant to official duties would simply provide an additional basis for rejecting Campbell’s
First Amendment claims” against both defendants. Id. In other words, in finding that she would
not be able to state a claim for retaliation based on speech made in the course of her job duties,
the opinion did not draw a distinction between the employer and non-employer defendants. Still,
it was not necessary to decide the issue, id., and it is not clear how the Fourth Circuit would rule
in another case with similar facts.
In sum, the law is at best unsettled as to whether a public employee plaintiff may bring a
First Amendment retaliation claim against a non-employer defendant for speech made pursuant
to the employee’s job duties. Importantly, though, it is not necessary for the Court to resolve this
conflict and determine whether the facts alleged in this case make out a violation of a
constitutional right. The above discussion makes plain that the First Amendment right Rowe
asserts, if it even exists, cannot have been clearly established at the time of the statements at
issue.
In this regard, the “doctrine of qualified immunity protects government officials ‘from
liability for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan,
555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Courts
considering whether to dismiss a complaint based on qualified immunity should consider both
“whether the facts that a plaintiff have alleged . . . make out a violation of a constitutional right”
and “whether the right at issue was clearly established at the time of defendant’s alleged
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misconduct.” Id. at 232 (citations omitted). Notably, courts considering this issue may “exercise
their sound discretion in deciding which of the two prongs of the qualified immunity analysis
should be addressed first in light of the circumstances of the particular case at hand.” Id. at 236.
A right is clearly established if “[t]he contours of the right” are “sufficiently clear that a
reasonable official would understand that what he is doing violates that right.” Anderson v.
Creighton, 483 U.S. 635, 640 (1987).
Based on the above, the Court finds that it was not clearly established that Rowe was
engaging in constitutionally protected activity at the time of the statements at issue. As a result,
Benjamin is entitled to qualified immunity.
IV.

CONCLUSION
Rowe’s speech in this case—speech critical of governmental waste and abuse of public

funds—lies at the core of the First Amendment and thus is undoubtedly speech of public
concern. However, Rowe acknowledges that he made this speech pursuant to his official duties
as the Director of Community Planning and Development in the Columbia Field Office of HUD.
Although the Supreme Court in Garcetti recognized that speech “[e]xposing governmental
inefficiency and misconduct is a matter of considerable significance,” it nevertheless rejected
“the notion that the First Amendment shields from discipline the expressions employees make
pursuant to their professional duties.” Garcetti, 547 U.S. at 425–26.
Rowe argues that the Supreme Court did not intend for Garcetti’s holding to bar First
Amendment retaliation claims against non-employer defendants, even where the plaintiff made
the speech at issue pursuant to his or her job duties. Although he might be correct, as some
courts outside the Fourth Circuit have held, the law is far from clear on this point. Indeed, the
Fourth Circuit in Campbell suggested that Garcetti would bar such a claim. Thus, it is this
Court’s opinion that even if such a free speech right exists, it was not clearly established at the
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time of the misconduct alleged in this case. Consequently, Benjamin is entitled to qualified
immunity.
Benjamin’s Motion to Dismiss is hereby granted, and this case is dismissed without
prejudice.

IT IS SO ORDERED.

October 26, 2012
Columbia, South Carolina

Joseph F. Anderson, Jr.
United States District Judge

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