Gwinnett v. Southwest Florida Regional Planning Council

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

NICHOLE GWINNETT,

Plaintiff,

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

SOUTHWEST FLORIDA REGIONAL

PLANNING COUNCIL,

Defendant.

/

OPINION AND ORDER1

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).

1 Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or

websites. These hyperlinks are provided only for users’ convenience. Users are

cautioned that hyperlinked documents in CM/ECF are subject to PACER fees. By

allowing hyperlinks to other websites, this Court does not endorse, recommend, approve,

or guarantee any third parties or the services or products they provide on their websites.

Likewise, the Court has no agreements with any of these third parties or their websites.

The Court accepts no responsibility for the availability or functionality of any hyperlink.

Thus, the fact that a hyperlink ceases to work or directs the user to some other site does

not affect the opinion of the Court.

2 Below are the facts as pled in the Complaint (Doc. 1), which the Court accepts as true.

Chandler v. Sec’y of Fla. Dep’t of Transp., 695 F.3d 1194, 1198-99 (11th Cir. 2012).

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

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (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). 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.

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 (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 (1977). Public employees

are not stripped of those rights after accepting a job with the government. Lane v. Franks,

573 U.S. 228, 236 (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 (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. So courts balance

those interests. Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cty., Ill., 391

U.S. 563, 568 (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.

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 (citing Pickering, 391 U.S. at 568). 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 (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.

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 (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). 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 (11th Cir. 2000))). The refusal to speak, therefore, was

unprotected by the First Amendment. Id. So the Complaint fails to state a claim. Ferrara

v. Mills, 781 F.2d 1508, 1512 (11th Cir. 1986) (“If the employee’s speech cannot fairly be

characterized as constituting speech on a matter of public concern, the inquiry is at an

end.”).3

3 Curiously, Gwinnett alleges she made statements about the incident to the police as a

citizen on a matter of public concern. (Doc. 1 at 3). But those statements are not at issue.

Gwinnett argues, however, a recent Supreme Court decision threw a wrench in the

works: Janus v. Am. Fed’n of State, Cty., and Mun. Emps., Council 31, 138 S. Ct. 2448

(2018). In Janus, the Supreme Court considered whether certain public-sector agency

fees amounted to compelled speech that violated the First Amendment. Id. at 2460.

Overall, the Court held states and public-sector unions cannot extract agency fees from

nonconsenting employees without violating the First Amendment, overruling Abood v.

Detroit Bd. of Educ., 431 U.S. 209 (1977), which held otherwise. Janus, 138 S. Ct. at

2486. In doing so, the Court addressed Pickering. Id. at 2471-78. Janus held, where

relevant, that Pickering did not apply in that scenario and Abood was not based on

Pickering. Id. at 2471-72 (citing Harris v. Quinn, 573 U.S. 616 (2014)). In dicta the Court

continued, explaining why the Pickering framework did not fit neatly in the agency-fee

context. Id. at 2472-74. One part of that discussion called Pickering into question in

compelled speech cases. Id. at 2473 (“If Pickering applies at all to compelled speech—

a question that we do not decide—it would certainly require adjustment in that context.”).

In the next breath, Janus applied the Pickering framework to the agency fees at issue all

the same. Id. at 2474-78.

While the Court cannot “lightly cast aside” Supreme Court dicta, Janus does not

change the result here. See Schwab v. Crosby, 451 F.3d 1308, 1325 (11th Cir. 2006)

(citation omitted) (“[T]here is dicta and then there is dicta, and then there is Supreme

Court dicta.”). Janus differs because the union agency fees there were a blanket

requirement for compelled speech on matters of public concern. Janus, 318 S. Ct. at

Here instead is the later refusal to speak to the supervisor on the matter as a private

concern.

2472, 2474-77 (“[T]he union speech at issue in this case is overwhelmingly of substantial

public concern.”). The case is both factually distinguishable (this case does not touch on

blanket compelled speech through union dues) and legally distinguishable (this case

involves compelled speech on a matter of private concern). And most important,

whatever the extent of its impact on Pickering in compelled speech cases, Janus did not

eliminate the public-concern requirement. In fact, much of the Supreme Court’s Pickering

analysis there considered whether the agency fees amounted to speech on a matter of

public concern. Id. at 2474-77. So neither Pickering nor its public-concern requirement

suffered the same fate as Abood. See id. at 2486.

Before Janus, courts applied Pickering to public employee compelled speech

cases with little fanfare. See Nicholson v. Gant, 816 F.2d 591, 593, 599-600 (11th Cir.

1987) (applying the Pickering framework when plaintiff objected to speech, was

compelled to speak, and later fired due to the speech).4 Gwinnett tries to distinguish this

line of cases, arguing they are limited to scenarios where the compelled speech related

to performance of job duties. Even if accurate, which it is not, this misunderstands the

public employee speech doctrine. Gwinnett only describes half of the threshold inquiry,

4 See also Jackler v. Byrne, 658 F.3d 225, 234-42 (2d Cir. 2011) (applying the Pickering

framework to a compelled speech case); Vaughn v. Lawrenceburg Power Sys., 269 F.3d

703, 715-19 (6th Cir. 2001) (same); Lewis v. Cowen, 165 F.3d 154, 161-64 (2d Cir. 1999)

(same); Padilla v. S. Harrison R-II Sch. Dist., 181 F.3d 992, 996-97 (8th Cir. 1999) (same);

Tunnell v. Crosby, 657 F. Supp. 2d 1263, 1264-65 (N.D. Fla. 2009) (same); Miller v. Davis,

123 F. Supp. 3d 924, 940-42, 941 n.12 (E.D. Ky. 2015) (same); Marsilio v. Vigluicci, 924

F. Supp. 2d 837, 848-55 (N.D. Ohio 2013) (same); Phillips v. Ingham Cty., 371 F. Supp.

2d 918, 928-29 (W.D. Mich. 2005) (same); see also Berry v. Bailey, 726 F.2d 670, 673-

76 (11th Cir. 1984) (applying the Pickering framework to a case involving a public

employee’s refusal to follow an order); Sykes v. McDowell, 786 F.2d 1098, 1103-05 (11th

Cir. 1986) (concluding that employee’s refusal to speak was protected, relying on Berry,

Connick, and another case that applied Pickering).

relating to whether an employee spoke as a citizen or employee. See Garcetti 547 U.S.

at 421 (“[W]hen public employees make statements pursuant to their official duties, the

employees are not speaking as citizens for First Amendment purposes, and the

Constitution does not insulate their communications from employer discipline”); Lane, 573

U.S. at 238-41. But it ignores the other half, public concern, which has been the

touchstone of public employee speech cases for decades. E.g., Connick, 461 U.S. at

154 (“[T]he First Amendment’s primary aim is the full protection of speech upon issues of

public concern, as well as the practical realities involved in the administration of a

government office.”).

Still, Gwinnett believes Janus changed everything and Pickering does not apply

because this is a case of compelled speech. Without citing a single authority that says

as much, Gwinnett instead relies on distinguishable cases in which the government was

regulating or compelling speech of its citizens.5 She also points to a different

circumstance where a state conditioned employment on taking an oath. Cole v.

Richardson, 405 U.S. 676 (1972) (plurality opinion) (holding an oath to oppose a forceful,

violent, or illegal overthrow of the government was constitutional). None of those

situations though control this public employee speech case because it is black-letter law

5 W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (compelling students to

salute and recite Pledge of Allegiance); Frazier v. Alexandre, 555 F.3d 1292 (11th Cir.

2009) (Barkett, J., dissenting) (compelling students to recite Pledge); Wooley v. Maynard,

430 U.S. 705 (1977) (compelling citizens to bear political message on license plates);

Cressman v. Thompson, 798 F.3d 938 (10th Cir. 2015) (same); Riley v. Nat’l Fed’n of the

Blind of N.C., Inc., 487 U.S. 781 (1988) (regulating certain charitable contributions

violated the First Amendment); Pac. Gas and Elec. Co. v. Pub. Utilities Comm’n of Cal.,

475 U.S. 1 (1986) (plurality opinion) (compelling speech in bills from a private company

to its customers); Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000) (compelling Boy Scouts

to admit individuals violated their right of association).

that the calculus is different when the government acts as employer. E.g., Garcetti, 547

U.S. at 418 (“A government entity has broader discretion to restrict speech when it acts

in its role as employer.”). One recent case did not apply Pickering to public employee

compelled speech. Guardiola v. Adams Cty. Sch. Dist. No. 14, No. 1:18-cv-03230-RM-

NRN, 2019 WL 1763245 (D. Colo. Apr. 22, 2019). In Guardiola, a court recognized that

Pickering governs public employee speech cases, then—without discussion—it applied a

standard for government-compelled citizen speech. Id. at *2-4. That case is not

controlling, and the lack of analysis makes it unpersuasive. But also, Guardiola is

distinguishable because, unlike here, the compelled speech there was on a matter of

public concern. Id. at *2-4 (“Plaintiff was retaliated against because of his association

with [a group] and the refusal of [the group’s] board members to publicly support the

[school district].”). To the contrary, several post-Janus courts concluded Pickering still

applies to compelled speech. See Meriwether v. Trs. of Shawnee State Univ., No. 1:18-

cv-753, 2019 WL 4222598, at *13-17 (S.D. Ohio Sept. 5, 2019) (applying Pickering to a

compelled speech claim); Jordahl v. Brnovich, 336 F. Supp. 3d 1016, 1044-48 (D. Ariz.

2018) (same).

Even if the Court reached Gwinnett’s proposed test, it is unavailing. Gwinnett

proposes this new test: “(1) whether the public employer sought to compel speech, (2) to

which the employee objects and (3) which is private speech unrelated to the discharge of

the employee’s job duties.” (Doc. 23 at 5). To be sure, this is a creature of Gwinnett’s

creation without citation to any authority. (Doc. 23 at 5-6). And the practical problems

with such a test are endless.

Take this for example. Say a nosey supervisor was keen on knowing what a public

employee brought for lunch. After the supervisor presses the employee to divulge that

private information, the employee refuses. So the supervisor threatens the employee to

speak or be fired. Is that a First Amendment violation? Under Pickering, no because the

public cares not whether a government employee brought turkey or ham for lunch.

Obviously, this would be a terrible reason to fire an employee. But at-will public

employees can be fired for “a good reason, bad reason, or no reason at all,” just not for

an unconstitutional reason. Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 606 (2008)

(internal quotation marks and citation omitted). On the contrary, Gwinnett’s test would

hold the public employer liable for that encounter as First Amendment retaliation. This

would eschew decades of settled understanding that the First Amendment “does not

empower [public employees] to ‘constitutionalize the employee grievance.’” Garcetti, 547

U.S. at 420 (quoting Connick, 461 U.S. at 154). And it contravenes the matter of public

concern requirement first articulated in Pickering. Pickering, 391 U.S. at 574 (A public

employee’s “exercise of his right to speak on issues of public importance may not furnish

the basis for his dismissal.”).

Absent a contrary ruling from the Supreme Court or Eleventh Circuit, the Court

must apply the Pickering framework to this case. Because the speech here is on a matter

of private concern, it is not entitled to First Amendment protection. E.g., Alves, 804 F.3d

at 1165-68. On these facts, Gwinnett may have an employee grievance or some other

action, but she has no First Amendment claim. To conclude otherwise ignores fifty years

of Supreme Court precedent and turns countless disputes between public employees and

employers into constitutional matters. While the Court appreciates Gwinnett presenting

this “unique occasion” to “develop a proper test in a First Amendment compelled speech

case,” there is no need to be the canary in that constitutional coal mine. (Doc. 23 at 1).

Accordingly, it is now

ORDERED:

1. Defendant’s Motion to Dismiss (Doc. 14) is GRANTED.

2. Plaintiff's Complaint (Doc. 1) is DISMISSED without prejudice.

3. Plaintiff may FILE an amended complaint on or before September 30, 2019.

DONE and ORDERED in Fort Myers, Florida this 16th day of September, 2019.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record