Decotiis v. Whittemore

• Decision Date: 24 March 2011
• Docket Number: No. 10–1242.,10–1242.
• Parties: Ellen H. DECOTIIS, Plaintiff, Appellant,v.Lori WHITTEMORE, individually and in her official capacity as Director of Child Development Services–Cumberland; Child Development Services–Cumberland; Debra Hannigan, State Director of Child Development Services, Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

635 F.3d 22

31 IER Cases 1823

Ellen H. DECOTIIS, Plaintiff, Appellant,

v.Lori WHITTEMORE, individually and in her official capacity as Director of Child Development Services–Cumberland; Child Development Services–Cumberland; Debra Hannigan, State Director of Child Development Services, Defendants, Appellees.

No. 10–1242.

United States Court of Appeals, First Circuit.

Heard Oct. 4, 2010.Decided March 24, 2011.

Rufus E. Brown, with whom Brown & Burke, Zachary L. Heiden, and MCLU Foundation, were on brief for appellant.Sarah A. Forster, Assistant Attorney General, with whom Janet T. Mills, Attorney General, and Paul Stern, Deputy Attorney General, were on brief for appellees.Before TORRUELLA and LIPEZ, Circuit Judges, and SMITH,^* District Judge.SMITH, District Judge.

In this case we must consider the First Amendment rights of a speech and language therapist working as a state contractor.¹ Navigating the shoals of the standard articulated by the Supreme Court in Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), has proven to be tricky business, and particularly so in the context of a motion to dismiss, because the inquiry is so highly fact intensive and context specific.

Plaintiff Ellen H. Decotiis brought suit against Child Development Services–Cumberland County (“CDS–Cumberland”), Lori Whittemore individually and in her official capacity as Director of CDS–Cumberland, and Debra Hannigan in her official capacity as State Director of Child Development Services (“CDS”) (collectively the “Defendants”) pursuant to 42 U.S.C. § 1983. Decotiis alleges that she was retaliated against in violation of her First Amendment free speech rights for expressing her opinion to parents that CDS–Cumberland was not in compliance with state regulations and urging parents to contact advocacy organizations to address this problem. She seeks a declaration that the non-renewal of her CDS–Cumberland contract was a violation of her First Amendment rights, injunctive relief to reinstate her contract and to prevent future retaliation based on protected speech, and attorney's fees. She also seeks compensatory and punitive damages from Whittemore, and compensatory damages from CDS–Cumberland.

The district court dismissed the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On appeal Decotiis argues that the district court erred in holding that her speech was not protected by the First Amendment under the principle enunciated in Garcetti and in holding that Whittemore is entitled to qualified immunity. We affirm the district court's judgment dismissing the complaint against Whittemore, because she is entitled to qualified immunity in her individual capacity and the suit against Whittemore in her official capacity is redundant of the suit against CDS–Cumberland. However, we conclude that the complaint sufficiently alleges a constitutional violation, particularly in light of two holdings of this Court that came after the district court's ruling and limned the contours of the Garcetti doctrine. We therefore vacate the judgment dismissing the complaint against Hannigan and CDS–Cumberland, and remand for proceedings consistent with this opinion.

I.

On review of a grant of a motion to dismiss, we state the facts as set forth in the complaint, drawing all reasonable inferences in favor of the plaintiff, the non-moving party. Cunningham v. Nat'l City Bank, 588 F.3d 49, 51 (1st Cir.2009).

CDS is a system of intermediate educational units ² created under state and federal law to provide early intervention and special education services under the Individuals with Disabilities Education Act (“IDEA”) for children with disabilities from birth to five years old. It is supervised by the Maine Department of Education. At the time the complaint was filed, fifteen regional sites, including CDS–Cumberland, comprised the system. Defendant Whittemore is the director of CDS–Cumberland and is alleged to be personally responsible for the retaliation against Decotiis. Defendant Hannigan is the state director of CDS.

Decotiis is a speech and language therapist licensed by the state of Maine who over the previous eighteen years, and at the time of the events giving rise to this action, had contracts with various regional CDS sites to provide speech and language therapy and evaluations for children.

In May 2008, Chapter 101 of the Maine Unified Special Education Regulation (“Unified Rule 101”) was adopted. Prior to its adoption, eligible children generally received services for the full calendar year, in accordance with their Individualized Family Service Plans (“IFSP”) or Individualized Education Plans (“IEP”). Unified Rule 101, however, limited these services for children aged three to five years old to the school year (September through June). As a result, services were not provided to children over the summer unless they were deemed eligible for extended school year services (“ESY services”). In response to this new regulation, the state CDS adopted a policy offering ESY services as “the exception and not the rule.” (Compl. ¶ 22.) That is, ESY services were to be provided only when a child's IEP team decided that the services were necessary to give the child a free and appropriate public education under IDEA. According to the complaint, Unified Rule 101 and CDS's new policy generated a stir; the CDS regional sites, service providers, and parents of children with disabilities throughout Maine were confused and concerned. This concern stemmed particularly from the absence of a clear procedure outlining the objective standards that would support eligibility determinations for ESY services.

In the spring of 2008, Decotiis was working under contracts with three regional CDS sites, including CDS–Cumberland, to provide speech and language services to children. It was around this time that Whittemore, case managers at CDS–Cumberland, and parents of children served by CDS–Cumberland informed Decotiis about CDS–Cumberland's approach to ESY-service determinations. Specifically, Decotiis was told that it was unlikely that children would receive ESY services unless they were considered severely disabled, and that children who received a single service (for example, only speech therapy) would not qualify for ESY services. Moreover, Decotiis was told that eligibility determinations were being made without the benefit of IEP meetings and that IEP meetings discussing children's eligibility for ESY services were only held at the insistence of parents. Decotiis also learned that Whittemore no longer trusted her clinical judgment as a result of what Whittemore perceived to be Decotiis's high rate of ESY-service recommendations, and that Whittemore would no longer accept her recommendations. In contrast to the practices of CDS–Cumberland, at the other two regional CDS sites for which Decotiis worked, Decotiis submitted quarterly reports for her caseload, including her recommendations for ESY services; she would then be notified of IEP meetings; and at these meetings, the team would review her recommendations and make decisions about ESY services.

After learning about CDS–Cumberland's approach to ESY services, Decotiis approached Hannigan about the discrepancy between the practices of the different regional sites. Hannigan responded that she had no insight into these differences. Subsequently, Decotiis contacted two advocacy groups in Maine, which advised her that CDS–Cumberland did not appear to be in compliance with state and federal law.

Shortly thereafter, Decotiis “informed parents of children she was treating that she was confused and concerned about the criteria CDS–Cumberland was using for eligibility for [ESY] services and that parents should contact [advocacy organizations] for guidance concerning their rights under IDEA.” ( Id. ¶ 42.) She also posted a notice in her office with the names and telephone numbers of the advocacy organizations for the benefit of parents, because she believed that CDS–Cumberland had given parents the incorrect number for one of the organizations.

In a letter dated July 29, 2008, CDS–Cumberland informed Decotiis that her contract, due to expire on September 1, 2008, would not be renewed.³ As of August 7, 2009, the date of the complaint, Decotiis was still working under contract at two other regional CDS sites.⁴ Defendants moved to dismiss the complaint. The district court granted that motion, without a hearing, on January 28, 2010. Decotiis now appeals.

II.

We review de novo the district court's dismissal under Rule 12(b)(6). Cook v. Gates, 528 F.3d 42, 48 (1st Cir.2008). The Court is not “wedded to the lower court's rationale” and may affirm the district court's order of dismissal “on any ground made manifest by the record.” Roman–Cancel v. United States, 613 F.3d 37, 41 (1st Cir.2010).

On a motion to dismiss, “we accept as true all well-pleaded facts in the complaint and draw all reasonable inferences in favor of the plaintiff[ ].” Gargano v. Liberty Int'l Underwriters, Inc., 572 F.3d 45, 48–49 (1st Cir.2009). The Federal Rules of Civil Procedure require a complaint to set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). To survive a motion to dismiss, this short, plain statement must “give the defendant fair notice of what the ... claim is and the grounds upon which it rests,” and allege “a plausible entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 559, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). This plausibility standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, ––– U.S. ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Applying the plausibility standard is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 1950.

A. First Amendment Claim

Decotiis first...