Agbor-Baiyee v. Washington State Department of Corrections et al
Filing
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ORDER GRANTING 23 DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. Case closed. Signed by Judge Thomas O. Rice. (CV, Case Administrator)
Case 2:21-cv-00054-TOR
ECF No. 38
filed 09/16/22
PageID.481 Page 1 of 12
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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
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Sep 16, 2022
SEAN F. MCAVOY, CLERK
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF WASHINGTON
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ENOW-TAMBONG AGBORBAIYEE, an individual,
NO. 2:21-CV-0054-TOR
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Plaintiff,
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v.
ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT
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WASHINGTON STATE
DEPARTMENT OF
CORRECTIONS, a department of the
State of Washington; JAMES KEY,
an individual; and MEGAN WOODS,
an individual,
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Defendants.
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BEFORE THE COURT is Defendants’ Motion for Summary Judgment
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(ECF No. 23). This matter was submitted for consideration without oral argument.
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The Court has reviewed the record and files herein and is fully informed. For the
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reasons discussed below, Defendants’ Motion for Summary Judgment (ECF No.
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23) is GRANTED.
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BACKGROUND
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This matter arises out of Plaintiff’s employment with the Washington
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Department of Corrections. See ECF No. 1-1. Plaintiff alleges Defendants
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violated federal and state law by discriminating and retaliating against him for his
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free speech activities. Id. Defendants move for summary judgment on all of
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Plaintiff’s claims. ECF No. 23. The following facts are not in dispute except
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where noted.
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Plaintiff began working for Defendant Department of Corrections (“DOC”)
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in May 2020. ECF No. 24 at 1, ¶ 1. After the employment on-boarding process,
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Plaintiff attended Core Academy training in Walla Walla, Washington. Id. at 2, ¶
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5. After training began at Core Academy, Plaintiff and all other students received
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a participant packet, which contained information on student expectations. Id. at
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¶¶ 11–12. Plaintiff read and signed the expectations. Id. at 3, ¶ 14. One of the
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expectations required students to wear the “uniforms provided per policy” during
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classroom sessions. Id. at ¶ 15. During Control Tactics training, the expectations
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permitted students to wear sweats, but prohibited certain other clothing, including
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“clothing with logos.” Id. at ¶ 16. The expectations also outlined the Academy’s
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cell phone policies. Id. at ¶ 17.
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Sometime in late May, one of the instructors for Core Academy wore a
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Police Lives Matter shirt to the Academy. Id. at 8, ¶ 65. On June 2, 2020, Plaintiff
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submitted an anonymous “debrief” to Defendant Woods, who was the Academy
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Coordinator, criticizing the instructor’s wearing of the Police Lives Matter shirt.
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ECF No. 32 at 3, ¶ 8. The purpose of the debriefs was to allow students to submit
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feedback about their instruction. ECF No. 24 at 8, ¶ 67. Debriefs were submitted
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anonymously, but Defendant Woods recalled later recognizing the handwriting as
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Plaintiff’s. Id. at ¶ 68; ECF No. 32 at 3, ¶ 10. No action was taken with regard to
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Plaintiff’s debrief. ECF Nos. 24 at 8, ¶ 71; 32 at 4, ¶ 12.
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Thereafter, some Core Academy students began wearing Police Lives
Matter/Blue Lives Matter shirts. ECF No. 24 at 8, ¶ 72. Plaintiff then wore a
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Black Lives Matter shirt. Id. at ¶ 73. At that point, instructors recognized that the
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competing messages of the shirts “were creating tension in the class and interfering
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with the learning environment.” Id. at 9, ¶ 74. Defendant Woods told Plaintiff his
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shirt was inappropriate, but she took no further action. ECF No. 36 at 7. Plaintiff
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testified that he walked away after her comment. Id. The next day, DOC enforced
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its no-logo policy and announced the policy enforcement to Plaintiff and his entire
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class. ECF No. 24 at 9, ¶¶ 75–78. Several students were required to change after
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the announcement. Id. at ¶ 78.
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Later in June, Plaintiff was called back from Core Academy training to meet
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with Assistant Superintendent Kay Heinrich. Id. at 10, ¶ 87. At the meeting,
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Plaintiff was informed his on-call employment at the DOC facility in Airway
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Heights was being terminated; Plaintiff was not provided a reason for the
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termination at the time. Id. at ¶¶ 88–89. The decision to terminate Plaintiff’s
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employment was made by Defendant Key, who is the final decisionmaker with
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respect to employment at the DOC facility in Airway Heights. Id. at 9, ¶ 81.
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Defendant Key based his decision to terminate Plaintiff on reports that Plaintiff
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had violated the cell phone policy at Core Academy on numerous occasions and
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had been involved in a traffic stop while in uniform. Id. at 9–10, ¶¶ 82–83; see
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also id. at 4, ¶¶ 24–32, at 5–6, ¶¶ 38–44, at 6–7, ¶¶ 49–55. Defendant Key was not
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aware of the Police Lives Matter/Black Lives Matter shirt incidents. Id. at 10, ¶
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84.
DISCUSSION
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I.
Legal Standard
The Court may grant summary judgment in favor of a moving party who
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demonstrates “that there is no genuine dispute as to any material fact and that the
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movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In ruling
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on a motion for summary judgment, the court must only consider admissible
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evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764 (9th Cir. 2002). The
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party moving for summary judgment bears the initial burden of showing the
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absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S.
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317, 323 (1986). The burden then shifts to the non-moving party to identify
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specific facts showing there is a genuine issue of material fact. See Anderson v.
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Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). “The mere existence of a scintilla
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of evidence in support of the plaintiff’s position will be insufficient; there must be
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evidence on which the jury could reasonably find for the plaintiff.” Id. at 252.
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For purposes of summary judgment, a fact is “material” if it might affect the
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outcome of the suit under the governing law. Id. at 248. Further, a dispute is
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“genuine” only where the evidence is such that a reasonable jury could find in
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favor of the non-moving party. Id. The Court views the facts, and all rational
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inferences therefrom, in the light most favorable to the non-moving party. Scott v.
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Harris, 550 U.S. 372, 378 (2007). Summary judgment will thus be granted
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“against a party who fails to make a showing sufficient to establish the existence of
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an element essential to that party’s case, and on which that party will bear the
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burden of proof at trial.” Celotex, 477 U.S. at 322.
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A. Section 1983, First Amendment Free Speech
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Plaintiff alleges Defendants Key and Woods violated 42 U.S.C. § 1983 by
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discriminating and retaliating against him after he engaged in First Amendment
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protected speech. ECF No. 1-1 at 5, ¶¶ 3.1–3.4. Defendants move for summary
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judgment on Plaintiff’s § 1983 claim on the grounds that Plaintiff has failed to
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articulate a prima facie case. ECF No. 23 at 10.
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“[A] governmental employer may impose certain restraints on the speech of
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its employees, restraints that would be unconstitutional if applied to the general
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public.” City of San Diego v. Roe, 543 U.S. 77, 80 (2004). To determine whether
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a public employee has alleged a violation of First Amendment rights as a result of
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retaliation for his speech, courts consider whether (1) the plaintiff spoke on a
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matter of public concern; (2) the plaintiff spoke as a private citizen or public
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employee; (3) the plaintiff's protected speech was a substantial or motivating factor
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in the adverse employment action; (4) the state had an adequate justification for
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treating the employee differently from other members of the general public; and
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(5) the state would have taken the adverse employment action even absent the
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protected speech. Clairmont v. Sound Mental Health, 632 F.3d 1091, 1103 (9th
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Cir. 2011). The plaintiff bears the burden of proof on the first three areas of
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inquiry, but the burden shifts to the government to prove the last two. Id.
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1. Matter of Public Concern
As to the first prima facie element, when determining whether an employee
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is speaking on a matter of public concern, courts look to the “content, form, and
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context of a given statement, revealed by the whole record.” Roe, 543 U.S. at 83
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(quoting Connick v. Myers, 461 U.S. 138, 146–47 (1983)); Ulrich v. City and
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County of San Francisco, 308 F.3d 968, 978 (2002). If the speech in question is a
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matter of public concern, courts apply the Pickering balancing test, which
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evaluates “restraints on a public employee's speech to balance ‘the interests of the
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[employee], as a citizen, in commenting upon matters of public concern and the
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interest of the State, as an employer, in promoting the efficiency of the public
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services it performs through its employees.’” Id. (quoting Pickering v. Board of
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Education of Township High School District 205 Will Cnty., Ill., 391 U.S. 563, 568
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(1968)).
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a. Content
If the content of the speech addresses issues about the operation of
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government and provides the public with information to facilitate making informed
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decisions, the speech may fall within the boundaries of public concern. Ulrich,
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308 F.3d at 978. Conversely, when a public employee speaks on matters of
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personal interest, “a federal court is not the appropriate forum in which to review
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the wisdom of a personnel decision taken by a public agency allegedly in reaction
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to the employee’s behavior.” Id.
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Here, Plaintiff contends his speech is a matter of public concern because the
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Black Lives Matter movement addresses social and political concerns about racial
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inequality. ECF No. 31 at 16. Defendants argue Plaintiff’s complaint about the
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Police Lives Matter shirt and subsequent decision to wear a Black Lives Matter
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shirt was in response to Defendants’ failure to enforce its no-logo policy, not in
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response to a broader matter of public concern. ECF No. 35 at 2.
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The Court agrees with Defendants. As Plaintiff notes, he submitted an
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internal debrief criticizing an instructor for wearing a Police Lives Matter shirt.
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ECF No. 32 at 2–4, ¶¶ 6–13. When no action was taken to enforce the no-logo
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attire requirement, and several students began wearing Police Lives Matter/Blue
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Lives Matter shirts, Plaintiff decided to wear a Black Lives Matter shirt. Id. at 4, ¶
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15. Plaintiff did not initiate a conversation about the issues on which the Black
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Lives Matter movement focuses but was acting in his own personal interest by
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responding to the failures of his workplace to conform to their own stated uniform
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policies. This element weighs against a finding that Plaintiff’s speech was a matter
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of public concern.
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b. Form and Context
As to form and context, courts look to the purpose of the speech, focusing on
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the employee’s motivation and the chosen audience. Ulrich, 308 F.3d at 978.
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Plaintiff’s complaint regarding the Police Lives Matter shirt was sent internally to
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the Academy coordinator using the Academy’s standard debrief evaluation
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process. ECF No. 32 at 3, ¶¶ 8, 9, 11. Plaintiff does not indicate he disseminated
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the complaint to the public or even to any other internal supervisors or staff.
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Plaintiff’s subsequent decision to wear the Black Lives Matter shirt was directed at
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Academy instructors and Defendant Woods after they failed to address Plaintiff’s
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complaint and failed to enforce the no-logo policy. Id. at 4, ¶¶ 15–16. Because
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Plaintiff’s motivation and chosen audience were isolated to his internal work
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environment, these factors also weigh against a finding that Plaintiff’s speech was
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a matter of public concern.
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Taken as a whole, the record for this matter reveals Plaintiff’s speech was
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not a matter of public concern because of its content, form, and context. Rather,
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Plaintiff was acting in personal interest and responding to his internal work
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environment. Plaintiff’s speech is more akin to “internal power struggles within
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the workplace,” which the Supreme Court and Ninth Circuit have consistently
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excluded from protected public employee speech. See e.g., Tucker v. State of Cal.
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Dep’t of Educ., 97 F.3d 1204, 1210 (9th Cir. 1996); National Treasury Employees
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Union v. Unites States, 990 F.2d 1271 (D.C. Cir. 1993), aff’d in relevant part,
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rev’d in part on other grounds, 513 U.S. 454 (1995).
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While a failure to meet one element of this prima facie case is fatal to
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Plaintiff’s case, the Court will briefly address the remaining elements for clarity.
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See Dahlia v. Rodriguez, 735 F.3d 1060, 1067 n.4 (9th Cir. 2013).
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2. Private Citizen or Public Employee
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Regarding whether Plaintiff was speaking as a private citizen or public
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employee, it is clear he was speaking as a public employee. Plaintiff’s speech was
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made internally to the Academy coordinator and his colleagues; his speech was
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directed at internal policies and the failure to uphold those policies; and Plaintiff
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followed the internal procedures for reporting his complaint. See Hagen v. City of
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Eugene, 736 F.3d 1251 (9th Cir. 2013) (finding the plaintiff spoke as a public
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employee where his concerns were directed to his coworkers and superiors, related
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to employee safety, and the speech occurred within the plaintiff’s chain of
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command).
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3. Substantial or Motivating Factor
Next, Plaintiff’s speech was not a substantial or motivating factor in the
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adverse employment action. Defendant Key is the final decisionmaker regarding
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employment actions at the DOC facility in Airway Heights. ECF No. 24 at 9, ¶ 81.
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Defendant Key was unaware of the Police Lives Matter and Black Lives Matter
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shirt incidents or of Plaintiff’s complaint filed with Ms. Woods. Id. at 9, ¶¶ 79–80.
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Accordingly, his decision to terminate Plaintiff’s employment could not have been
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motivated by Plaintiff’s speech activities.
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Viewing the evidence in a light most favorable to Plaintiff, no reasonable
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jury could find Plaintiff was engaged in protected public employee free speech.
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Plaintiff has failed to establish the necessary elements of the prima facie case. As
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such, Defendants are entitled to summary judgment on Plaintiff’s § 1983 claim for
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violation of the First Amendment. The Court need not reach Defendants’
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alternative theory of dismissal premised on qualified immunity.
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B. State Law Claims
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Plaintiff alleges two state law claims for violation of the Washington Law
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Against Discrimination, RCW 49.60 et seq. ECF No. 1-1 at 6, ¶¶ 4.1–5.3. A
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federal court has supplemental jurisdiction over pendent state law claims to the
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extent they are “so related to claims in the action within [the court’s] original
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jurisdiction that they form part of the same case or controversy . . . .” 28 U.S.C. §
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1367(a). “A state law claim is part of the same case or controversy when it shares
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a ‘common nucleus of operative fact’ with the federal claims and the state and
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federal claims would normally be tried together.” Bahrampour v. Lampert, 356
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F.3d 969, 978 (9th Cir. 2004) (citation omitted). Once the court acquires
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supplemental jurisdiction over state law claims, § 1367(c) provides that the court
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may decline to exercise jurisdiction if (1) the claim raises a novel or complex issue
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of State law, (2) the claim substantially predominates over the claim or claims over
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which the district court has original jurisdiction, (3) the district court has dismissed
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all claims over which it has original jurisdiction, or (4) in exceptional
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circumstances, there are other compelling reasons for declining jurisdiction. 28
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U.S.C. § 1367(c). Indeed, “[i]n the usual case in which all federal-law claims are
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eliminated before trial, the balance of factors . . . will point toward declining to
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exercise jurisdiction over the remaining state-law claims.” Carnegie–Mellon Univ.
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v. Cohill, 484 U.S. 343, 350 n.7 (1988), superseded on other grounds by statute as
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stated in Sanford v. MemberWorks, Inc., 625 F.3d 550, 561 (9th Cir. 2010); see
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also Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (en banc).
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Having dismissed the federal law claim asserted against Defendants, the
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Court declines to exercise jurisdiction over the remaining state law claims. 28
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U.S.C. § 1367(c)(3); Ove v. Gwinn, 264 F.3d 817, 826 (9th Cir. 2001) (finding that
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a district court did not abuse its discretion by declining to exercise supplemental
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jurisdiction over the remaining state law claims when federal claims were
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dismissed). The parties will not be prejudiced by the Court’s decision because the
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state law claims will be dismissed without prejudice; Plaintiff may refile in state
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court if he so chooses. Further, the period of limitation for Plaintiff’s remaining
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state law claims is tolled for thirty days after the claims are dismissed unless
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Washington law provides for a longer tolling period. See 28 U.S.C. § 1367(d).
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ACCORDINGLY, IT IS HEREBY ORDERED:
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1. Defendants’ Motion for Summary Judgment (ECF No. 23) is
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GRANTED. The federal claim asserted against Defendants James Key
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and Megan Woods is DISMISSED with prejudice.
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2. Any remaining state law claims are DISMISSED without prejudice.
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The District Court Executive is directed to enter this Order and Judgment
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accordingly, furnish copies to counsel, and CLOSE the file.
DATED September 16, 2022.
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THOMAS O. RICE
United States District Judge
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