Maloy v. Ballori-Lage

• Decision Date: 07 March 2014
• Docket Number: No. 12–1979.,12–1979.
• Court: U.S. Court of Appeals — First Circuit
• Parties: Michelle MALOY, Plaintiff, Appellant, v. Eduardo BALLORI–LAGE, et al, Defendants, Appellees.

744 F.3d 250

Michelle MALOY, Plaintiff, Appellant,

v.Eduardo BALLORI–LAGE, et al, Defendants, Appellees.

No. 12–1979.

United States Court of Appeals, First Circuit.

March 7, 2014.

Jane Becker Whitaker, for appellant.

Rosa Elena Pérez–Agosto, with whom Margarita Mercado–Echegary was on brief, for appellees.

Before THOMPSON, LIPEZ, and KAYATTA, Circuit Judges.

KAYATTA, Circuit Judge.

Michelle Maloy claims that the Puerto Rico Real Estate Examining Board denied her a license in retaliation for her public criticism of the Board, thereby violating her rights under the First Amendment of the United States Constitution. The district court granted the Board's motion to dismiss Maloy's complaint under Federal Rule of Civil Procedure 12(b)(6). We vacate the judgment, because we find that Maloy's allegations plausibly state a claim under 42 U.S.C. § 1983.

I. Background

Because this appeal follows the dismissal of Maloy's claim, we take as true the facts presented in her complaint and draw all reasonable inferences in her favor. A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir.2013). In addition to the complaint, we consider three documents, which we would normally not consider, see Watterson v. Page, 987 F.2d 1, 3 (1st Cir.1993), that the parties without objection submitted in briefing the motion to dismiss below.¹

Plaintiff–Appellant Maloy is a real estate broker in Puerto Rico who has been a vocal critic of the Puerto Rico Real Estate Examining Board, a government body responsible for regulating the real estate industry. Defendant–Appellees include the Board and several individuals associated with it.

Since at least 2009, Maloy has sought to combat what she perceives as corruption within the Board. Maloy has publicly accused the Board of mishandling millions of dollars and of soliciting her participation in an illegal price-fixing scheme, among other charges. On August 4, 2009, Maloy denounced alleged corruption during “public and executive hearings with various members” of a division of the Puerto Rico Assembly. After August 4, Maloy continued to meet with Puerto Rico legislators, as well as the Puerto Rico Justice Department and the Federal Bureau of Investigation, to discuss her criticisms of the Board.

On February 26, 2010, between six and seven months after her public and repeated castigations of the Board, Maloy visited the Board's offices, where she spoke with a Board employee, María Díaz Ogando. Maloy told Díaz Ogando that she wanted to apply for a license to establish a bilingual real estate school. Díaz Ogando gave Maloy a copy of a previously posted public notice stating that the deadline for such applications was that very day, February 26, 2010, and that a hearing regarding applications would be held on March 25, 2010. Díaz Ogando informed Maloy that she “could not fill out an application as it also required a school proposal, course, programs and licensing permits.”

Maloy returned to the Board's offices on March 23, 2010, two days before the scheduled public hearing, with an application meeting Díaz Ogando's specifications. Maloy then attended the hearing, where she was interviewed by Board members on the substance of her proposal. Two months later, Maloy received a letter denying her application on the grounds that it was not filed by February 26, 2010.

In September 2010, Maloy filed suit against the Board and several individuals associated with it, seeking relief under 42 U.S.C. § 1983 for a violation of her First Amendment rights.² The district court dismissed Maloy's First Amendment claim with prejudice in July 2011, reasoning that the Board had a legitimate non-discriminatory reason—the tardiness of her application—for rejecting the application. Maloy then filed a motion for reconsideration, which the court denied. This appeal followed. We have jurisdiction over Maloy's appeal of the district court's orders under 28 U.S.C. § 1291.

II. Standard of Review

We review de novo the district court's dismissal of Maloy's complaint. A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir.2013). In deciding whether the district court properly dismissed a claim, we ask whether the complaint “state[s] a claim to relief that is plausible on its face,” accepting the plaintiff's factual allegations and drawing all reasonable inferences in the plaintiff's favor. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To cross the plausibility threshold, the plaintiff must “plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

III. Analysis

To hold the Board liable for unconstitutional retaliation, Maloy must show that “her conduct was constitutionally protected” and that “this conduct was a substantial factor or a motivating factor driving the allegedly retaliatory decision.” Air Sunshine, Inc. v. Carl, 663 F.3d 27, 35–36 (1st Cir.2011) (internal citations and quotation marks omitted). To survive a motion to dismiss, then, Maloy must have alleged facts sufficient to allow the court to draw the reasonable inference that her constitutionally protected activity was a substantial or motivating factor in the Board's denial of her subsequent application. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

Indisputably, Maloy's allegations are adequate, if believed, to show that she engaged in constitutionally protected activity. Maloy testified publicly about alleged government corruption, a quintessential exercise of the rights to speak freely and to petition the government. See Pickering v. Board of Ed., 391 U.S. 563, 573, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (explaining that “the core value of the Free Speech Clause” is the “public interest in having free and unhindered debate on matters of public importance”). Maloy's comments at meetings with government officials also qualify for First Amendment protection. See Borough of Duryea v. Guarnieri, ––– U.S. ––––, 131 S.Ct. 2488, 2495, 180 L.Ed.2d 408 (2011) (“The right to petition allows citizens to express their ideas, hopes, and concerns to their government and their elected representatives....”).

Maloy's complaint also permits a reasonable inference that at least some of the Board's members and employees had become aware of her accusations by the time she attempted to apply for a license in the spring of 2010. Maloy alleged that the Board's president publicly stated in June 2010 that Maloy had pressed false accusations against the Board, supporting a plausible conclusion that he and his colleagues were aware of those accusations several months earlier. Moreover, in assessing the plausibility of Maloy's claim, we must draw on our “judicial experience and common sense.” Iqbal, 556 U.S. 662 at 679, 129 S.Ct. 1937. Here, because Maloy spoke publicly and vehemently against the Board, common sense supports a reasonable inference that at least some Board members and employees likely learned of it. Cf. García–Catalán v. United States, 734 F.3d 100, 103 (1st Cir.2013) (relying on “common sense” to assess the plausibility of the plaintiff's claim).

This troika drawn by protected speech, plausible motive, and a rejection of what the plaintiff alleges is an application complying with all lawful requirements would normally be enough to carry a complaint across the starting line in the face of a Rule 12(b)(6) motion. See Grajales v. P.R. Ports Auth., 682 F.3d 40, 49–50 (1st Cir.2012) (reversing dismissal in a political discrimination case where the plaintiff alleged that he was subject to illegitimate employment actions by officials who knew he was a member of an opposing party). Indeed, because “smoking gun proof [of unconstitutional retaliation] is rarely available, especially at the pleading stage,” we demand only “telltale clues ... from the circumstances” as pled in the complaint. Id. at 49. Typically, too, an assessment of a plaintiff's complaint does not entail consideration—much less require rebuttal—of the defendant's explanation for its action, see, e.g., Garnier v. Rodríquez, 506 F.3d 22, 27 (1st Cir.2007), except in the unusual case where the complaint itself points to another explanation that is so obviously correct...