Gwinnett v. Sw. Fla. Reg'l Planning Council

• Decision Date: 16 September 2019
• Docket Number: Case No.: 2:19-cv-295-FtM-38MRM
• Parties: Nichole GWINNETT, Plaintiff, v. SOUTHWEST FLORIDA REGIONAL PLANNING COUNCIL, Defendant.
• Court: U.S. District Court — Middle District of Florida

407 F.Supp.3d 1273

Nichole GWINNETT, Plaintiff,

v.SOUTHWEST FLORIDA REGIONAL PLANNING COUNCIL, Defendant.

Case No.: 2:19-cv-295-FtM-38MRM

United States District Court, M.D. Florida, Fort Myers Division.

Signed September 16, 2019

Benjamin H. Yormak, Yormak Disability Law Group, Bonita Springs, FL, for Plaintiff.

Robert Ernest Johnson, GrayRobinson, PA, Tampa, FL, for Defendant.

OPINION AND ORDER ¹

SHERI POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE

Before the Court is Defendant Southwest Florida Regional Planning Council's (the "Council") Motion to Dismiss (Doc. 14) and Plaintiff Nichole Gwinnett's response in opposition (Doc. 17). The Court ordered supplemental briefing (Doc. 18), and those responses are here (Docs. 22; 23). For these reasons, the Court grants the Motion.

BACKGROUND²

This is a First Amendment retaliation case. (Doc. 1). The case is not about a citizen's freedom of speech, rather it concerns a public employee's right not to speak about private matters. (Doc. 1 at 5).

Before last year, Gwinnett worked at the Council without incident. (Doc. 1 at 3). Then, Gwinnett and a coworker went to an out-of-town work conference. (Doc. 1 at 3). After the conference ended, the coworker was assaulted. (Doc. 1 at 3). She confided the details of the incident to Gwinnett before contacting the police. (Doc. 1 at 3). When the police arrived, Gwinnett's supervisor from the Council called and insisted on an explanation of the incident. (Doc. 1 at 3). But Gwinnett refused, directing the supervisor to the police. (Doc. 1 at 3). The supervisor continued pressing Gwinnett for information without success. (Doc. 1 at 4). Eventually, the supervisor demanded Gwinnett disclose the intimate details of the incident or be fired. (Doc. 1 at 4). Still, Gwinnett refused to speak because it was a private matter unrelated to work. (Doc. 1 at 4). At that point, Gwinnett resigned. (Doc. 1 at 4).

Now, Gwinnett sues the Council for First Amendment retaliation under 42 U.S.C. § 1983. (Doc. 1 at 5-6).

LEGAL STANDARD

A complaint must recite "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). This pleading standard "does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "To 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.’ " Id. (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). A facially plausible claim allows a "court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. So the pleading must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955.

DISCUSSION

The Motion is broken into three parts: first, a jurisdictional challenge; second, argument related to an extrinsic document; and third, the 12(b)(6) attack.

A. Jurisdiction

First, the Council takes aim at jurisdiction. (Doc. 14 at 3-5). But it misses the mark. Because there is not diversity and Gwinnett fails to allege a sufficient claim, says the Council, there is no jurisdiction. Yet on its face, the Complaint invokes federal question jurisdiction by alleging a First Amendment violation under § 1983. Grable & Sons Metal Prods., Inc. v. Darue Eng'g & Mfg. , 545 U.S. 308, 312, 125 S.Ct. 2363, 162 L.Ed.2d 257 (2005) ("[F]ederal-question jurisdiction is invoked by and large by plaintiffs pleading a cause of action created by federal law (e.g. , claims under 42 U.S.C. § 1983 )."). So diversity is irrelevant. And the balance is an attack on the sufficiency of the claim under Rule 12(b)(6), not jurisdiction under Rule 12(b)(1). E.g. , Howard v. Wilkinson , 305 F. Supp. 3d 1327, 1334 (M.D. Fla. 2018) ("A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the plaintiff's complaint."). To the extent the Council moves to dismiss for lack of jurisdiction, the Motion is denied.

B. Four Corners of the Complaint

Next, the Council points to Gwinnett's formal grievance and a text message, which are outside the Complaint. (Doc. 14 at 5-8; 14-1). That is usually a no-no at the motion to dismiss stage. And this case is not an exception to the rule.

A motion to dismiss typically transforms into summary judgment when a court considers matters outside the complaint. SFM Holdings, Ltd. v. Banc of Am. Sec., LLC , 600 F.3d 1334, 1337 (11th Cir. 2010). There are limited exceptions—a "district court may consider an extrinsic document if it is (1) central to the plaintiff's claim, and (2) its authenticity is not challenged." Id. Yet these documents are neither central to Gwinnett's claim nor undisputed. First, they are not central to the claim; the Complaint never even alludes to them. Cf. Hoffman-Pugh v. Ramsey , 312 F.3d 1222, 1225-26 (11th Cir. 2002) (holding an entire book could be considered because it was referenced in the complaint and central to the defamation claim). And second, Gwinnett disputes their authenticity. (Doc. 17 at 11 ("[T]hese documents and their context are very much disputed.")); see Harris v. Bd. of Trs. Univ. of Ala. , 846 F. Supp. 2d 1223, 1239 (N.D. Ala. 2012) ("[B]ecause Defendant disputes its authenticity, the court cannot consider the exhibit without converting to the Rule 56 summary judgment standard.").

For both reasons, the Court does not consider these documents.

C. Sufficiency of the Claim

Finally, to state a claim for First Amendment retaliation, plaintiffs must plead (1) constitutionally protected speech; (2) an adverse consequence; (3) and a causal relationship between the protected speech and adverse conduct. Castle v. Appalachian Tech. Coll. , 631 F.3d 1194, 1197 (11th Cir. 2011). The parties mostly fight over the first prong. The Council asserts Gwinnett's refusal to speak was unprotected. (Docs. 14 at 8-10; 22). Gwinnett disagrees and asks the Court to create a new test for public employee First Amendment retaliation cases. (Docs. 17 at 6-11; 23).

The First Amendment protects "both the right to speak freely and the right to refrain from speaking at all." Wooley v. Maynard , 430 U.S. 705, 714, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977). Public employees are not stripped of those rights after accepting a job with the government. Lane v. Franks , 573 U.S. 228, 236, 134 S.Ct. 2369, 189 L.Ed.2d 312 (2014). But the government can regulate the speech of its employees more than its citizens. E.g. , Garcetti v. Ceballos , 547 U.S. 410, 418-19, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). This naturally creates a tension between the government's need to control its own employees and those employees' constitutional rights. Lane , 573 U.S. at 236-37, 134 S.Ct. 2369. So courts balance those interests. Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cty., Ill. , 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). And it all began over fifty years ago when a disgruntled teacher wrote a letter to his local newspaper—spawning a case called Pickering . Id. at 564, 88 S.Ct. 1731.

After decades of refinement, Pickering may protect public employee speech if it first crosses a constitutional threshold: the speech must be "as a citizen on a matter of public concern." Garcetti , 547 U.S. at 418, 126 S.Ct. 1951 (citing Pickering , 391 U.S. at 568, 88 S.Ct. 1731 ). If not, "the employee has no First Amendment cause of action based on his or her employer's reaction to the speech." Id. (citing Connick v. Myers , 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) ). In that event, the inquiry does not go to Pickering 's step-two balancing test. Alves v. Bd. of Regents of the Univ. Sys. of Ga. , 804 F.3d 1149, 1159-60, 1159 n.4 (11th Cir. 2015). The claim simply fails. E.g. , Connick , 461 U.S. at 146-49, 103 S.Ct. 1684.

Speech is "of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest." Lane , 573 U.S. at 241, 134 S.Ct. 2369 (internal quotation marks and citation omitted). In short, the speech must be on "a subject of general interest and of value and concern to the public." Id. (citation omitted). This "inquiry turns on the ‘content, form, and context’ of the speech." Id. (quoting Connick , 461 U.S. at 147-48, 103 S.Ct. 1684 ). Whether speech is of public concern is a question of law for courts to resolve. Alves , 804 F.3d at 1159.

Under a straightforward Pickering analysis, the Complaint is easily dismissed. It alleges Gwinnett refused to speak on a matter of private—not public—concern. (Doc. 1 at 4 ("Gwinnett's refusal to speak on such private matters that were not work-related was her exercising her First Amendment rights."); Doc. 1 at 5 ("Gwinnett's [sic] refused to waive her First Amendment rights and speak on matters of private [sic] that did not involve her own job duties.")). And Gwinnett repeatedly concedes this case is about "retaliation for not speaking on matters of private concern." E.g. , (Doc. 17 at 6). According to Gwinnett, she refused to speak about the assault because it was a private matter unrelated to work. (Doc. 1 at 3-5). So she did not need to disclose the intimate details the coworker entrusted with her. (Doc. 1 at 3-5). Clearly, the "main thrust" of Gwinnett's refusal to speak was private in nature, specifically to keep the incident private. See Alves , 804 F.3d at 1162, 1165-68 (" ‘[T]he relevant inquiry is not whether the public would be interested in the topic of the speech at issue,’ it is ‘whether the purpose of the employee's speech was to raise issues of public concern.’ " (alteration accepted) (quoting Maggio v. Sipple , 211 F.3d 1346, 1353 (...