Watts v. Florida Intern. University

• Decision Date: 17 August 2007
• Docket Number: No. 05-13852.,05-13852.
• Citation: 495 F.3d 1289
• Parties: John WATTS, Plaintiff-Appellant, v. FLORIDA INTERNATIONAL UNIVERSITY, Board of Regents of the State of Florida, Modesto Maidique, Psychiatric Institute of Delray, a Florida corporation, Karen Sowers-Hoag, Phyllis Singerman, Joseph Salluzzi, FIU Board of Trustees, Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

495 F.3d 1289

John WATTS, Plaintiff-Appellant, v. FLORIDA INTERNATIONAL UNIVERSITY, Board of Regents of the State of Florida, Modesto Maidique, Psychiatric Institute of Delray, a Florida corporation, Karen Sowers-Hoag, Phyllis Singerman, Joseph Salluzzi, FIU Board of Trustees, Defendants-Appellees.

No. 05-13852.

United States Court of Appeals, Eleventh Circuit.

August 17, 2007.

Edward Scott Golden, Atty. at Law, Fort Lauderdale, FL, for Plaintiff-Appellant.

Oscar E. Marrero, Lourdes Espino Wydler, Law Offices of Oscar E. Marrero, Coral Gables, FL, Justin C. Fineberg, Lash & Goldberg, LLP, Weston, FL, Alicia Lyons Laufer, Rubinton & Laufer, LLC, Ft. Lauderdale, FL, Alan D. Lash, Lorelei J. Van Wey, Lash & Goldberg, LLP, Miami, FL, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT, CARNES and HILL, Circuit Judges.

CARNES, Circuit Judge:

This is an appeal by John Watts from the dismissal under Fed.R.Civ.P. 12(b)(6) of his amended complaint claiming, among other things, that because of his religious beliefs he was terminated from a practicum position, which led to his dismissal from a seminar and prevented him from earning his master's degree at a state university.

I.

Given the procedural posture of the case, we view the allegations in the amended complaint in the light most favorable to Watts. While the true facts may be other than those alleged, for present purposes it does not matter. The allegations, construed favorably to Watts, are what count.

In 1995 Watts enrolled in the Master of Social Work program at Florida International University, a state university. He was scheduled to graduate in May of 1997. To complete the program and earn his degree, Watts had to take a course called "Field Practicum II." According to FIU's graduate catalog, Field Practicum II was a "516-clock hour supervised educational experience in an agency setting designed to provide the student with an opportunity to develop and practice social work skills in the student's area of concentration." Watts registered for the course, paid his tuition, and was assigned to Fair Oaks Hospital, a private psychiatric institution affiliated with FIU for purposes of the practicum. While in the practicum Watts worked under the supervision of Phyllis Singerman, an FIU graduate field instructor and advisor, and Joseph Salluzzi. Salluzzi was also a field instructor, but it is unclear whether he worked for FIU or Fair Oaks. In the spring of 1997, Watts was counseling a patient at Fair Oaks who "lacked a diagnosis." After questioning the patient, Watts, consistent with his training, recommended that the patient join a bereavement support group. The patient asked where she could find such a group. Watts, who had noticed on the patient's assessment form that she was Catholic, included "church" in the options he told her about. Nothing he said violated any guidelines or requirements of the MSW program.

Shortly thereafter, Watts received a letter on Fair Oaks letterhead which was signed by Salluzzi and Singerman, terminating him from the practicum. This is what it said:

This letter has been drafted in order to make John Watts aware of his practicum termination at Fair Oaks Hospital on 4/1/97.

The decision has been based on inappropriate behavior related to patients, regarding religion. This is the second such incident where personal boundaries have intruded into professional conduct.

The first counseling was verbal, and included Phyllis L. Singerman (Graduate Field Instructor) and Joseph Salluzzi (Field Instructor).

Salluzzi and Singerman also orally informed Watts that "his termination was due to his religious speech." As a result of his termination from the practicum, Watts later received another letter dismissing him from "Field Practicum II," the related course in which he was enrolled at FIU. Because he was kicked out of the practicum and the course, Watts could not earn his master's degree at FIU.

According to Watts, Fair Oaks and Salluzzi "acted in such close concert with the state, and the state approved their actions, that their actions are fairly attributable to the state and they are deemed to be state actors for the purposes of 42 U.S.C. § 1983."¹

II.

Watts filed a lawsuit against FIU, the Board of Regents, the Board of Trustees for FIU, the corporate entity that owns Fair Oaks, Singerman, Salluzzi, and some others. The complaint asserted under 42 U.S.C. § 1983 three claims that the defendants' actions had violated Watts' constitutional rights to free speech, free exercise of religion, and procedural due process. It also put forward twelve state law claims.

In granting the defendants' motion to dismiss, the district court did not address their assertion that Fair Oaks and Salluzzi were not state actors for purposes of the federal claims. Instead, the court ruled that the allegations failed to state a claim for violation of federal law regardless of state action. As for the state law claims, the court declined to exercise supplemental jurisdiction over them and dismissed them without prejudice. Well, more or less. More about that at the end of this opinion, but for now we turn to the federal claims.

III.

The district court reached its conclusion that Watts' free speech claim should be dismissed by applying the employee speech case of Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968), and its progeny. The Pickering decision recognized that government "has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general." Id. at 568, 88 S.Ct. at 1734. Still, the Supreme Court "unequivocally rejected" the notion that government employees relinquish their right to comment on matters of public concern. Id. Because Pickering had spoken on an issue of public importance and there was no evidence that he had knowingly or recklessly made false statements, the Court held that the school board had infringed on his First Amendment rights by dismissing him from public employment. Id. at 574, 88 S.Ct. at 1738.

By contrast, when public employees speak on matters of private concern, the First Amendment protection is not as extensive. See generally Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). In the Connick case the Court explained that while the state generally is prohibited from punishing the expression of private sentiments:

when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.

Id. at 147, 103 S.Ct. at 1690. The district court rightly found that Watts spoke on a matter of private concern. His speech provided private counsel to a single patient within the confines of a counseling session. If Pickering is the appropriate yardstick, Watts loses.

Watts argues, however, that the standard to apply is not the Pickering test but the one governing student speech that is set out in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), and its progeny. In that case the Supreme Court famously proclaimed that neither students nor teachers "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Id. at 506, 89 S.Ct. at 736. Less famously, the Court said that the First Amendment rights of students and teachers must be "applied in light of the special characteristics of the school environment." Id. In that special light, school officials may be justified in prohibiting particular expressions where there is a showing that engaging in the forbidden conduct would "materially and substantially interfere with . . . appropriate discipline in the operation of a school." Id. at 509, 89 S.Ct. at 738 (quotation marks omitted). Watts argues that because he was a student, the state can only regulate his conduct under the Tinker test, which limits the government's power more than the Pickering test does.

The assumption underlying Watts' contention is that because the state has some power to regulate his speech as a student of FIU, it cannot also exercise its power to regulate his speech as an employee of Fair Oaks. Tinker gives the state a limited power to restrict speech that materially and substantially interferes with the operation of a school. Id. Pickering, as modified by Connick, provides the state a broader power to regulate the private speech of its employees. Connick, 461 U.S. at 147, 103 S.Ct. at 1690. Had Watts not been a student as well as a government employee, the state plainly would have been entitled to the greater leeway the Pickering test affords it. The fact that the state could have attempted to assert its authority over Watts as a student, subject to the Tinker restrictions, does not prevent it from asserting authority over him as an employee, subject to the Pickering test instead. In any event, once Watts the employee was terminated from his employment in the practicum, Watts the student could not complete the course which included the practicum. Without that course he could not earn his degree. The action that led to the results about which Watts complains is his termination from employment in the practicum, and to that pivotal action the Pickering test applies.

As we have already indicated, judged under Pickering, the termination of Watts from the practicum because of what he said during the private counseling session does not violate the Free Speech Clause of the First Amendment. The district court correctly dismissed that claim.

IV.

The district court was also correct in...