GRIFFIN v. UNIVERSITY OF MAINE SYSTEM

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

PATRICIA GRIFFIN, )

)

Plaintiff, )

)

v. ) No. 2:22-cv-00212-JDL

)

UNIVERSITY OF MAINE SYSTEM, )

et al., )

)

Defendants. )

ORDER ON PARTIAL MOTION TO DISMISS

Plaintiff Patricia Griffin’s employment as a Professor of Marketing at the

University of Southern Maine was terminated by the University of Maine System

(“the University”) in September 2021. In her First Amended Complaint (ECF No.

15), dated October 14, 2022, against the University and Glenn Cummings, the

President of the University of Southern Maine,1 Griffin asserts that her termination

was unlawful retaliation for her having spoken out against the University’s facemask

and vaccination policies adopted in response to the COVID-19 pandemic. Griffin

seeks relief for violations of her rights under the First Amendment’s guarantee of

Free Speech (Count One), and the Fourteenth Amendment’s guarantees of Equal

Protection and Due Process (Count Two). She further alleges that the University

violated her rights under Title VII of the Civil Rights Act for Discrimination Based

on Sex, 42 U.S.C.A. § 2000e-2(a) (West 2023) (Count Three), and under the Maine

1 The parties have stipulated to the dismissal of the University of Southern Maine as a Defendant

(ECF No. 12).

Human Rights Act for Discrimination Based on Sex, 5 M.R.S.A. § 4572 (West 2023)

(Count Four).

The Defendants have filed a Partial Motion to Dismiss (ECF No. 17) pursuant

to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) seeking dismissal of Counts One and Two in

their entirety and dismissal of Griffin’s claims for punitive damages under Title VII

of the Civil Rights Act and the Maine Human Rights Act. In response, Griffin does

not object to the dismissal of Count One as to the University and does not object to

the dismissal of Count Two in its entirety. Griffin also does not object to the dismissal

of her claim for punitive damages in Counts Three and Four. Accordingly, this Order

addresses only Griffin’s claims in Count One brought against Cummings in his official

and individual capacities. For the reasons that follow, I grant in part and deny in

part the Defendants’ Partial Motion to Dismiss.

I. FACTUAL BACKGROUND

This factual background is drawn both from the Amended Complaint and from

“documents incorporated by reference into the complaint, matters of public record,

and facts susceptible to judicial notice.”2 Butler v. Balolia, 736 F.3d 609, 611 (1st Cir.

2013) (quoting Haley v. City of Bos., 657 F.3d 39, 46 (1st Cir. 2011)).

2 The Defendants attached four Exhibits to their motion: the University’s Environmental and Safety

Policy, which directs the Chancellor of the University of Maine System to take all actions necessary to

comply with federal and state health and safety regulations and to review and implement health and

safety policies on individual campuses; an email sent by the Chancellor to University faculty, staff,

and students regarding the University’s mandatory masking policy, which also referenced the

University’s vaccination requirement; an email that Griffin sent to the Dean of the College of

Management and Human Service; and a letter that Griffin sent to the Dean. Because these documents

are specifically referenced in the Amended Complaint or are central to Griffin’s allegations, and

because Griffin has not objected to the Court’s consideration of the documents or disputed their

authenticity, I treat them as incorporated into the pleadings. See Alt. Energy Inc. v. St. Paul Fire and

Marine Ins., Co., 267 F.3d 30, 33 (1st Cir. 2001); Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993)

Griffin was a Professor of Marketing at the University of Southern Maine who

received “tenure status” or “just cause” status on June 25, 2021. ECF No. 15 at 2, ¶¶

6, 12. On August 18, 2021, in preparation for the University’s fall semester, the

Chancellor of the University of Maine System announced a mandatory mask policy

(the “Policy”). On August 24, Griffin participated in a luncheon meeting via Zoom at

which Cummings was a speaker. She alleges that during the event, Cummings did

not wear a mask.3 On the same day, Griffin sent an email to the Dean of the College

of Management and Human Service pertaining to the University’s recently

implemented mask and vaccine policies. The email reads in pertinent part:

I first want to say how much I love teaching at [the

University of Southern Maine] as well as working with

such a great faculty. It really has been the highlight of my

career and I owe a lot to you for sticking with me. The

reason for this email is because I have been following the

science, data, and evidence regarding SARS-CoV-2 and

searching for anything that will support wearing a mask

while indoors as well as vaccinating an entire school

population as the optimal method for stopping the

transmission of the virus. The reality is that my research

has found no evidence to support these measures. I wanted

to share the information I gathered and relied upon when

making my decision regarding these mandates before the

start of classes next Monday to see that my decisions are

science, evidence, and data based. However, I do not want

to cause any issues, especially for you, if I come to campus

on Monday morning to teach my one face to face class so I

wanted to give you enough time.

(recognizing that courts may consider “documents the authenticity of which are not disputed by the

parties; . . . documents central to plaintiffs’ claims; or . . . documents sufficiently referred to in the

complaint” at the motion to dismiss stage).

3 Griffin does not specify whether Cummings attended the lunch in person or whether he spoke via

Zoom. Based on the nature of her allegations, I infer that he was present in person. In any event,

whether Cummings appeared in person or by Zoom is not material to the issues decided in this Order.

ECF No. 17-3 at 1.

Griffin attached a separate letter to her email, also addressed to the Dean,

summarizing the results of her research on the effectiveness of mask mandates and

vaccines. She concluded the letter as follows:

In conclusion, I have followed the science, data, and

evidence and cannot find any overwhelming support for the

wearing of masks nor the mandating of vaccines, especially

since the overall survival rate is 99.7% if infected with

Covid. And finally, from a legal perspective, asking for my

vaccination status is a violation of HIPAA.

My expectation is the University of Southern Maine will

appreciate a faculty member who embraces critical

thinking and applies both inductive and deductive

reasoning rather than emotions when making decisions. I

am teaching three courses this fall, two online and one face

to face. I welcome any evidence you can provide to the

contrary of what I have found which will convince me that

my conclusions about the efficacy of wearing a mask and

vaccinating an entire population are wrong.

ECF No. 17-4 at 3-4.

On August 25, Griffin met with the Dean via Zoom, where she reiterated her

request for data supporting the University’s Policy and vaccination requirement and

asserted her view that Cummings had violated the Policy at the luncheon. Griffin

alleges that she never refused to wear a mask and never stated that she would violate

the Policy.

Griffin asserts that immediately following the Zoom meeting, her fall semester

courses— one face-to-face class and two asynchronous online classes—were removed

from the fall class list. Two days later, University administrators convened a pre-

disciplinary conference at which Griffin was present and at which she reiterated her

request for data supporting the Policy. The administrators allegedly told her that

she would not be allowed to teach courses 100% online unless she resigned and

accepted a part-time position. Griffin alleges that “other male professors were

allowed to teach their classes 100% online.” ECF No. 15 at 4, ¶ 24.

On September 8, 2021, Griffin received a letter from Cummings suspending

her and informing her that the University would be moving to terminate her

employment. Griffin alleges that the letter falsely asserted that her email to the

Dean had indicated that she refused to comply with the Policy, and that the letter

included additional false assertions about her refusal to wear a mask and her

intention to violate the Policy. She alleges that the letter caused her severe emotional

distress and that it was sent in retaliation for her earlier communications with the

Dean. University administrators scheduled a Grievance Hearing, and Griffin learned

that Cummings would attend the hearing. Because she had previously filed a Human

Resources complaint alleging that Cummings had created a hostile work

environment, Griffin asserts that she felt intimidated by Cummings’s presence and

did not feel comfortable attending the hearing. The hearing went forward in Griffin’s

absence, resulting in the termination of her employment effective September 22,

2021.

II. LEGAL ANALYSIS

A. Standard of Review

In reviewing a Fed. R. Civ. P. 12(b)(6) motion to dismiss for failure to state a

claim, a court must “accept as true all well-pleaded facts alleged in the complaint and

draw all reasonable inferences therefrom in the pleader’s favor.” Rodríguez-Reyes v.

Molina-Rodríguez, 711 F.3d 49, 52-53 (1st Cir. 2013) (quoting Santiago v. Puerto Rico,

655 F.3d 61, 72 (1st Cir. 2011)). Similarly, “[w]hen a district court considers a Rule

12(b)(1) motion, it must credit the plaintiff's well-pled factual allegations and draw

all reasonable inferences in the plaintiff’s favor.” Merlonghi v. United States, 620

F.3d 50, 54 (1st Cir. 2010). A court may also consider “implications from documents

incorporated into the complaint[] and concessions in the complainant’s response to

the motion to dismiss.” Arturet-Vélez v. R.J. Reynolds Tobacco Co., 429 F.3d 10, 13

n.2 (1st Cir. 2005).

To survive a motion to dismiss, a complaint “must contain sufficient factual

matter to state a claim to relief that is plausible on its face.” Rodríguez-Reyes, 711

F.3d at 53 (quoting Grajales v. P.R. Ports Auth., 682 F.3d 40, 44 (1st Cir. 2012)). To

assess a complaint’s adequacy, courts apply a “two-pronged approach.” Ocasio-

Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011). First, the court must

“isolate and ignore statements in the complaint that simply offer legal labels and

conclusions or merely rehash cause-of-action elements,” and, second, the court will

“take the complaint’s well-pled (i.e., non-conclusory, non-speculative) facts as true,

drawing all reasonable inferences in the pleader’s favor, and see if they plausibly

narrate a claim for relief.” Schatz v. Republican State Leadership Comm., 669 F.3d

50, 55 (1st Cir. 2012). “The make-or-break standard . . . is that the combined

allegations, taken as true, must state a plausible, not a merely conceivable, case for

relief.” Sepúlveda–Villarini v. Dep’t of Educ. of P.R., 628 F.3d 25, 29 (1st Cir. 2010).

Determining the plausibility of a claim is “a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense.” Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009).

When faced with a motion to dismiss based on multiple grounds, “the First

Circuit advises lower courts to consider jurisdictional arguments first.” Justin v.

JPMorgan Chase Bank, Nat’l Ass’n, No. 2:20-cv-00164-LEW, 2020 WL 4677294, at *1

n.1 (D. Me. Aug. 12, 2020). See Ne. Erectors Ass’n of BTEA v. Sec’y of Labor,

Occupational Safety & Health Admin., 62 F.3d 37, 39 (1st Cir. 1995) (“When faced

with motions to dismiss under both 12(b)(1) and 12(b)(6), a district court, absent good

reason to do otherwise, should ordinarily decide the 12(b)(1) motion first.”). However,

the Court may address the merits of a claim prior to resolving Eleventh Amendment

immunity issues. See Parella v. Ret. Bd. of R.I. Emps.’ Ret. Sys., 173 F.3d 46, 56 (1st

Cir. 1999). As to the Defendants’ qualified immunity defense, the Court may also

decide the merits of Griffin’s constitutional claim prior to reaching the “clearly

established” prong of the qualified immunity analysis. See Pearson v. Callahan, 555

U.S. 223, 236 (2009). Accordingly, I address the merits of Griffin’s First Amendment

claim before turning to the Defendants’ affirmative defenses.

B. First Amendment Claim: Retaliation for Protected Speech

Griffin asserts that she engaged in protected speech when she made her

requests to the Dean seeking data supporting the University’s COVID-19 policies,

and that she was speaking as a citizen on a matter of public concern. Accordingly,

she contends that the Defendants violated her First Amendment rights by

terminating her employment in retaliation for that speech.

To establish a prima facie case of retaliation under the First Amendment, a

plaintiff must show that: “(1) she engaged in protected conduct; (2) she suffered an

adverse employment action; and (3) . . . ‘a causal nexus exists between the protected

[conduct] and the adverse action.’” Garayalde–Rijos v. Mun. of Carolina, 747 F.3d

15, 24 (1st Cir. 2014) (quoting Ponte v. Steelcase Inc., 741 F.3d 310, 321 (1st Cir.

2014)). The “threshold inquiry” to determine whether a public employee engaged in

protected speech is “whether [the employee] spoke as a citizen on a matter of public

concern.” O'Connell v. Marrero-Recio, 724 F.3d 117, 123 (1st Cir. 2013). If the answer

is no, the employee has no First Amendment retaliation claim. If the answer is yes,

then the possibility of a First Amendment claim arises. Garcetti v. Ceballos, 547 U.S.

410, 418 (2006). “In order to survive a motion to dismiss, a plaintiff need not

conclusively establish that her speech was made as a citizen; ‘it is sufficient that the

complaint alleges facts that plausibly set forth citizen speech.’” Cannell v. Corizon,

LLC, No. 1:14-cv-405-NT, 2015 WL 8664209, at *8 (D. Me. Dec. 11, 2015)

(quoting Decotiis v. Whittemore, 635 F.3d 22, 34-35 (1st Cir. 2011)).

The Defendants contend that Griffin was speaking within the scope of her

employment, and not as a citizen addressing a matter of public concern, in her written

communications to the Dean. It is, they contend, “axiomatic that as an employee of

UMS, [Griffin’s] duties and responsibilities in a practical sense included compliance

with UMS policies and rules.” ECF No. 17 at 8. Further, citing Garcetti, 547 U.S. at

422, they argue that her communications to the Dean were “those of an employee

contesting her employer’s rules and policies, not an activity of speaking as a citizen

on a matter of public concern.” ECF No. 17 at 9. Thus, the focus of the Defendants’

argument is that Griffin’s speech is not protected because she was speaking in her

capacity as an employee, and not as a private citizen.

Griffin responds that her email and letter are protected speech because they

involved mandatory mask and vaccine policies which are “perhaps the most

controversial political and social concerns in the community over the past two years.”

ECF No. 18 at 6. Griffin also invokes Garcetti for the proposition that the “controlling

factor” for purposes of a public employee’s protected speech is whether the statements

were “made pursuant to the [employee’s] duties.” 547 U.S. at 421. She contends that

because she was not employed by the University to “question University Policy on

masks or vaccinations,” and was instead employed “to teach students, and to prepare

lectures and course materials,” ECF No. 18 at 7, her statements fall outside the scope

of what she was employed to do.

1. Whether Griffin’s speech pertained to a matter of public concern

“Speech involves matters 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; that is, a subject of general interest

and of value and concern to the public.”’” Lane v. Franks, 573 U.S. 228, 241 (2014)

(quoting Snyder v. Phelps, 562 U.S. 443, 453 (2011)). The Defendants argue that

Griffin’s speech “was not plausibly lodged on a matter of public concern . . . [but] was

lodged as a complaint regarding her employer’s policy.” ECF No. 22 at 3. However,

the Defendants do not meaningfully dispute that the underlying subject matter of

Griffin’s speech—the COVID-19 pandemic and the response of public institutions to

it—has generated significant public debate and controversy in Maine and elsewhere

over the last three years. Thus, the decisive question here is the other element of the

threshold inquiry: whether Griffin’s speech was made in her capacity as a public

employee or as a private citizen.

2. Whether Griffin spoke as a public employee or as a private citizen

For purposes of the First Amendment, public employees do not speak as

citizens when they “make statements pursuant to their official duties.” Decotiis, 635

F.3d at 30 (quoting Garcetti, 547 U.S. at 421). This inquiry requires the Court to

determine “the employee’s official responsibilities” and whether “the speech at issue

[was] made pursuant to those responsibilities.” Id. at 31 (quoting Mercado–Berrios

v. Cancel–Alegría, 611 F.3d 18, 26 (1st Cir. 2010)). The analysis of an employee’s

professional responsibilities is “‘practical’ rather than formal, focusing on ‘the duties

an employee actually is expected to perform.’” Id. (quoting Mercado–Berrios, 611 F.3d

at 26). Speech that is made pursuant to an employee’s official duties includes, but is

not limited to, “speech that ‘owes its existence to a public employee’s professional

responsibilities.’” Mercado–Berrios, 611 F.3d at 27 n.9 (quoting Garcetti, 547 U.S. at

421). “[A] public employee’s speech ‘can be pursuant to’ [her] ‘official job duties even

though it is not required by, or included in, [her] job description’” and “speech may be

‘pursuant to’ an employee’s official duties when it is ‘part-and-parcel of’ the

employee’s concerns about [her] ability to properly execute [her] duties.” Shara v.

Maine-Endwell Cent. Sch. Dist., 46 F.4th 77, 83 (2d Cir. 2022) (quoting Weintraub v.

Bd. of Educ., 593 F.3d 196, 203 (2d Cir. 2010)).

The Supreme Court has recognized that not all speech that “simply relates to

public employment or concerns information learned in the course of public

employment” is deprived of First Amendment protections. Lane, 573 U.S. at 239.

This is because certain speech—for example, a public employee’s sworn testimony

related to misuse of public funds—has “special value precisely because [an]

employee[] gains[s] knowledge of matters of public concern through their

employment.” Id. at 240. Speech by public employees related to their employment

holds “special value” because “[g]overnment employees are often in the best position

to know what ails the agencies for which they work,” id. at 236 (alteration in original)

(quoting Waters v. Churchill, 511 U.S. 661, 674 (1994) (plurality opinion)), and

because they “‘are uniquely qualified to comment’ on ‘matters concerning government

policies that are of interest to the public at large,’” id. at 240 (quoting City of San

Diego v. Roe, 543 U.S. 77, 80 (2004) (per curiam)).

Accordingly, the fact that the speech at issue here related to Griffin’s

employment is not dispositive of whether she was speaking pursuant to her official

duties as a public employee. Instead, as set forth by the First Circuit in Decotiis,

several non-dispositive factors must be evaluated:

[(1)] [W]hether the employee was commissioned or paid to

make the speech in question; [(2)] the subject matter of the

speech; [(3)] whether the speech was made up the chain of

command; [(4)] whether the employee spoke at her place

of employment; [(5)] whether the speech gave objective

observers the impression that the employee represented

the employer when she spoke (lending it “official

significance”); [(6)] whether the employee’s speech derived

from special knowledge obtained during the course of her

employment; and [(7)] whether there is a so-called citizen

analogue to the speech.

Decotiis, 635 F.3d at 32 (citations omitted). The factors suggest that the context in

which a public employee speaks bears heavily on whether the employee was speaking

pursuant to her or his official job responsibilities.

As applied to the allegations of Griffin’s Amended Complaint,4 an evaluation

of the first two Decotiis factors—whether the employee was commissioned or paid to

make the speech in question, and the subject matter of the speech—produces a mixed

result. Because Griffin was employed to teach students, and not to analyze and

assess the University’s health and safety policies, her speech can fairly be treated as

outside the ordinary scope of her duties and instead merely related to her duties. See

Lane, 573 U.S. at 240. Viewed in this light, although Griffin’s email and letter were

related to her employment at the University, that is, without more, insufficient to

deprive her speech of First Amendment protections under Lane. On the other hand,

a practical inquiry into her employment duties, beyond her official job description,

suggests otherwise. The subject matter of her email and letter concerned what she

might do in the classroom and expressed concerns regarding the University’s internal

policies and the conditions the University had imposed on her in-person teaching

responsibilities, thus bearing directly on matters within the scope of her employment.

The third and fourth Decotiis factors—whether the speech was made up the

chain of command, and whether the employee spoke at her place of employment—

support the conclusion that Griffin’s speech was communicated in her capacity as an

employee and not as private citizen. All of the speech at issue was communicated by

4 I do not address the fifth factor, as there were no objective observers of Griffin’s speech.

Griffin directly up the chain of command to the Dean of the College of Management

and Human Services. Further, the speech was communicated exclusively within the

channels of her employment via her official work email account and at face-to-face

meetings with the Dean and other university administrators. As addressed in Gilbert

v. City of Chicopee, 915 F.3d 74, 83 (1st Cir. 2019), a complaint or concern “made up

the chain of command . . . is the quintessential example of speech that owes its

existence to a public employee’s official responsibilities.” See also O'Connell, 724 F.3d

at 123.

The sixth Decotiis factor—whether the employee’s speech is derived from

special knowledge that she obtained during the course of her employment—weighs

against concluding that Griffin spoke as a private citizen. Griffin does not allege that

she was “uniquely qualified,” see Lane, 573 U.S. at 240, to share information about

the effectiveness of mask mandates and vaccine requirements as a result of her

employment, nor did she obtain special information regarding the Policy through her

position. Accordingly, Griffin’s speech does not hold that “special value” of protected

speech that pertains to an employee’s official responsibilities as was contemplated by

the Supreme Court in Lane.

The seventh Decotiis factor—whether there is a so-called citizen analogue to

the speech—ultimately weighs in favor of a finding that Griffin’s speech was made

outside the scope of her employment. On one hand, unlike a letter to a newspaper

or other “kind[s] of activit[ies] engaged in by citizens who do not work for the

government,” Garcetti, 547 U.S. at 423-24, Griffin’s email and letter were sent

directly to her superior through her University email account and pertained to her

disagreement with the Policy and its impact on her face-to-face teaching conditions.

See Weintraub, 593 F.3d at 204 (discussing citizen analogues in the context of union

grievances and noting that “[t]he lodging of a union grievance is not a form or channel

of discourse available to non-employee citizens, as would be a letter to the editor or a

complaint to an elected representative or inspector general”). Similarly, the

communication that occurred during Griffin’s meeting with the Dean was plainly a

private, employment-related encounter. Moreover, Griffin states in her email that

she had made a “decision regarding these mandates,” ECF No. 17-3 at 1, from which

one could fairly infer that she was informing her employer that she might not comply

with the Policy based on her research.

However, at the motion to dismiss stage I must draw all reasonable inferences

in Griffin’s favor. In that light, it is also possible to infer that Griffin’s “decision”

represented the conclusion or conclusions she had drawn regarding the Policy and its

efficacy, and not a final decision not to comply with it. The substance of Griffin’s

email and letter also communicated her concerns about the University’s response to

the pandemic and the efficacy of mask mandates on college campuses. Viewed in this

manner, Griffin’s speech could be considered “sufficiently analogous to the speech of

other citizens in the community troubled,” Decotiis, 635 F.3d at 34, by facemask and

vaccine policies implemented by public institutions during the COVID-19 pandemic,

thus warranting a conclusion that there is a plausible citizen analogue to Griffin’s

speech.

Assessing the allegations of Griffin’s Amended Complaint in relation to the

Decotiis factors produces an uncertain result. However, accepting all of Griffin’s

factual allegations as true, the question that I must ultimately decide at this

preliminary juncture is whether the Complaint has provided “enough facts to state a

claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). A “well-pleaded complaint may proceed even if it appears ‘that a recovery

is very remote and unlikely.’” Id. at 556 (quoting Scheuer v. Rhodes, 416 U.S. 232,

236 (1974)). Plausible “means something more than merely possible,” Schatz, 669

F.3d at 55, and “[a] plausible but inconclusive inference from pleaded facts will

survive a motion to dismiss . . . .” Sepúlveda–Villarini, 628 F.3d at 30.

Here, Griffin has pleaded sufficient facts to make it more than merely possible

that once fully developed, the facts will support the conclusion that although Griffin’s

speech related to her official duties as a public employee, the subject matter of her

speech pertained to a matter of great public concern and was outside the scope of her

duties as a professor of marketing. Whether the same conclusion may be true after

the parties have completed discovery is another matter for another day. “[I]t is

entirely possible that additional facts might show” that Griffin is not entitled to the

relief that she seeks, but “absent factual development, dismissal is unwarranted” at

this stage. Lowe v. Mills, 68 F.4th 706, 715-16 (1st Cir. 2023). Accordingly, Griffin

has stated a plausible First Amendment claim upon which relief could be granted.

Thus, I turn to the Defendants’ affirmative defenses.

C. Eleventh Amendment Immunity

The Defendants argue that Cummings cannot be held liable for damages in his

official capacity because he is not a “person” for the purposes of a section 1983 action.

Although they concede that there are limited circumstances under which state

officials may be sued for prospective injunctive relief, they contend that the relief that

Griffin seeks is not prospective in nature and that she has not alleged an ongoing

violation of federal law. Griffin counters that “because President Cummings was an

authorized decisionmaker for UMS, his actions are fairly said to be that of UMS and

accordingly, Plaintiff’s official capacity claims against Cummings are valid.”5 ECF

No. 18 at 10.

States and their agents, including a state university, Wang v. N. H. Bd. Of

Registration in Med., 55 F.3d 698, 700 (1st Cir. 1995), are not “persons” subject to

suits for monetary damages under section 1983. Brown v. Newberger, 291 F.3d 89,

92 (1st Cir. 2002) (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)).

This is because the Eleventh Amendment generally bars suits against the state, arms

of the state, or a state’s agent absent “consent, waiver, or abrogation” of immunity.

Irizarry–Mora v. Univ. of P. R., 647 F.3d 9, 11 n.1 (1st Cir. 2011).

Notwithstanding Eleventh Amendment immunity, the Ex parte Young

doctrine allows “suit[s] challenging the constitutionality of a state official’s action”

and permits federal courts to grant prospective injunctive relief against a state official

“to prevent a continuing violation of federal law.” Green v. Mansour, 474 U.S. 64, 68

(1985) (citing Ex parte Young, 209 U.S. 123, 155-56, 159 (1908)). Accordingly, in “a

[section] 1983 action . . . a federal court’s remedial power, consistent with the

5 This appears to be an argument based on municipal liability standards from Monell v. Dep’t of Soc.

Servs., 436 U.S. 658 (1978). Griffin also cites multiple cases that address municipal liability standards,

see e.g., Bd. of Comm’rs of Bryan Cty. v. Brown, 520 U.S. 397, 403-04 (1997). Monell is intended to

“directly address[] ‘monetary, declaratory, or injunctive relief’” in the context of municipal liability.

Dirrane v. Brookline Police Dep't, 315 F.3d 65, 71 (1st Cir. 2002) (quoting Monell, 436 U.S. at 690).

Because Cummings is a state official, the appropriate inquiry as to whether he may be held liable in

his official capacity is whether the Eleventh Amendment bars the particular relief sought by Griffin.

Eleventh Amendment, is necessarily limited to prospective injunctive relief, and may

not include a retroactive award which requires the payment of funds from the state

treasury.” Quern v. Jordan, 440 U.S. 332, 338 (1979) (second alteration in original)

(quoting Edelman v. Jordan, 415 U.S. 651, 677 (1974)). The Ex parte Young exception

may apply if a “complaint alleges an ongoing violation of federal law and seeks relief

properly characterized as prospective.” Verizon Md., Inc. v. Pub. Serv. Comm'n of

Md., 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur d'Alene Tribe of Idaho, 521

U.S. 261, 296 (1997)).

Griffin has not asserted arguments pertaining to the Eleventh Amendment,

stating only that her official capacity claim against Cummings and her request for

reinstatement are proper. Accordingly, she has waived any argument that the relief

she requested—with the exception of reinstatement—is not barred by the Eleventh

Amendment. See, e.g., Olympic Mills Corp. V. Rivera Siaca (In re Olympic Mills

Corp.), 477 F.3d 1, 17 (1st Cir. 2007) (concluding that plaintiff’s damages claim was

waived because “the argument was fatally undeveloped . . . [with] no analysis

whatsoever”); Collins v. Marina-Martinez, 894 F.2d 474, 481 n.9 (1st Cir. 1990) (“It

is settled beyond peradventure that issues mentioned in a perfunctory manner,

unaccompanied by some effort at developed argumentation, are deemed waived.”).

Despite the absence of any argument on this issue, I nonetheless address whether

Griffin’s claims for relief, brought against Cummings in his official capacity, are

barred by the Eleventh Amendment.

First, Griffin’s requests for retroactive benefits and salary, and compensatory

damages for, among other things, lost wages, benefits, and pension monies, are

clearly foreclosed by the Eleventh Amendment bar on retrospective relief and

prospective relief that would have more than an ancillary impact on the state

treasury. See Camacho-Morales v. Caldero, 68 F. Supp. 3d 261, 274 (D.P.R. 2014)

(“An award of damages . . . would obviously require the Commonwealth to open its

coffers. Back pay, which ‘compensates plaintiffs for lost wages and benefits between

the time of the discharge and the trial court judgment,’ would have the same effect.”

(quoting Johnson v. Spencer Press of Me., Inc., 364 F.3d 368, 379 (1st Cir. 2004))).

Second, Griffin’s requests for (1) a declaratory judgment that the “Defendants’

acts . . . have violated” her constitutional rights, and (2) a declaratory judgment “that

the disciplinary action taken against [her], including termination, shall be null and

void,” ECF No. 15 at 6-7, are foreclosed to the extent that they constitute “judgments

against state officers declaring that they violated federal law in the past.” P. R.

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993).

Third, Griffin’s request for reinstatement, which is fairly treated as a request

for prospective injunctive relief, is generally considered an appropriate form of

prospective injunctive relief under Ex parte Young. See Doe v. Lawrence Livermore

Nat’l Lab’y, 131 F.3d 836, 841 (9th Cir. 1997) (collecting cases); Lane v. Cent. Ala.

Cmty. Coll., 772 F.3d 1349, 1351 (11th Cir. 2014); Jones v. Tex. Juv. Just. Dep’t, 646

F. App’x 374, 376 (5th Cir. 2016). The Defendants do not argue otherwise, instead

acknowledging that “seeking reinstatement may fit within the Ex [p]arte Young

paradigm in certain circumstances,” but that Griffin’s accompanying requests for

monetary relief are barred by the Eleventh Amendment. ECF No. 22 at 5.

Accordingly, Griffin’s requests for retrospective and prospective monetary

damages, as well as retrospective declaratory relief, brought against Cummings in

his official capacity, are barred by the Eleventh Amendment. However, because

Griffin’s request for reinstatement is not barred, the Defendants’ motion as to

Griffin’s official capacity claim is denied.

D. Qualified Immunity

As to the claim brought against Cummings in his individual capacity, the

Defendants argue that Cummings is entitled to qualified immunity because Griffin

has not alleged a plausible constitutional violation. They also contend that it would

not have been clear to Cummings that terminating Griffin’s employment would

violate a clearly established right: “the relevant question for qualified immunity

purposes is whether . . . [Griffin] had a clearly established right to advocate against

and seek the justifications for a university’s indoor masking policy in the midst of a

global pandemic such that it would have been clear to Cummings that he could not

take adverse employment actions for such conduct by an employee.” ECF No. 17 at

13. “Given the circumstances of the alleged violation and the state of the law during

the pandemic, it is not at all clear that Cummings should have known, let alone

obviously understood, that taking such actions would be a violation of the law.” ECF

No. 17 at 13.

Griffin counters that the Defendants mischaracterize the constitutional right

at issue, arguing that “in a nearly identical circumstance in Givhan, [the Supreme

Court] held that a teacher has a First Amendment right to raise concerns and

questions to her employer regarding school policies she disagreed with.” ECF No. 18

at 11. She asserts that “President Cummings should have obviously understood that

terminating [her] for simply requesting data and raising concerns with the Policy was

a violation of her First Amendment rights.” ECF No. 18 at 11-12.

“Government officials sued in their individual capacities are immune from

damages claims unless ‘(1) they violated a federal statutory or constitutional right,

and (2) the unlawfulness of their conduct was “clearly established at the time.”’” Irish

v. Fowler, 979 F.3d 65, 76 (1st Cir. 2020) (quoting Dist. of Columbia v. Wesby, 583

U.S. 48, 62-63 (2018)). “Qualified immunity gives government officials breathing

room to make reasonable but mistaken judgments about open legal questions. When

properly applied, it protects ‘all but the plainly incompetent or those who knowingly

violate the law.’” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v.

Briggs, 475 U.S. 335, 341 (1986)).

In determining whether a government official is entitled to qualified immunity,

the Court may exercise its discretion in determining which prong of the qualified

immunity test to address first. Pearson, 555 U.S. at 236. Assuming that Griffin has

plausibly stated a First Amendment violation, I proceed to the clearly established

prong of the analysis.

The clearly established prong of the analysis is comprised of two parts. First,

the Court must inquire “whether the precedent is ‘clear enough that every reasonable

official would interpret it to establish the particular rule the plaintiff seeks to apply.’”

Irish II, 979 F.3d at 76 (quoting Wesby, 583 U.S. at 63). The precedent must be

“dictated by ‘controlling authority’ or ‘a robust “consensus of cases of persuasive

authority.”’” Wesby, 583 U.S. at 63 (quoting al-Kidd, 563 U.S. at 741-42). See

Decotiis, 635 F.3d at 37 (“[F]or the right to be clearly established, the plaintiff must

point to controlling authority or a body of persuasive authority, existing at the time

of the incident, that can be said to have provided the defendant with ‘fair warning.’”

(quoting Hope v. Pelzer, 356 U.S. 730, 741 (2002))). Although a general statement of

law or broad constitutional rule may be sufficient to give “fair and clear warning” to

a public official, the state of pre-existing law must make “the unlawfulness [of their

conduct . . .] apparent.” French v. Merrill, 15 F.4th 116, 126-27 (1st Cir. 2021) (first

quoting United States v. Lanier, 520 U.S. 259, 271 (1987), then quoting White v.

Pauly, 580 U.S. 73, 79-80 (2017) (per curiam)). “A rule is too general, however, ‘if the

unlawfulness of the officer’s conduct “does not follow immediately from the conclusion

that [the rule] was firmly established.”’” Id. at 127 (quoting Wesby, 583 U.S. at 64).

Second, the Court must ask “whether ‘[t]he rule’s contours [were] so well

defined that it [would be] clear to a reasonable [official] that his conduct was unlawful

in the situation he confronted.’” Irish II, 979 F.3d at 76 (first and second alterations

in original) (quoting Wesby, 583 U.S. at 63-64). “[A] defendant cannot be said to have

violated a clearly established right unless the right’s contours were sufficiently

definite that any reasonable official in the defendant’s shoes would have understood

that he was violating it.” Plumhoff v. Rickard, 572 U.S. 765, 778-79 (2014). “[I]t is

important to emphasize that this inquiry ‘must be undertaken in light of the specific

context of the case, not as a broad general proposition.’” Maldonado v. Fontanes, 568

F.3d 263, 269 (1st Cir. 2009) (quoting Brosseau v. Haugen, 543 U.S. 194, 198 (2004)).

Accordingly, under this inquiry, Griffin is not required to point to a case that

is “directly on point,” but she must at least point to a body of authority that places

“the . . . constitutional question beyond debate” under the particularized facts of the

case. French, 15 F.4th at 126 (quoting White, 580 U.S. at 79). A plaintiff bears the

“heavy burden” of demonstrating that the law was clearly established at the time of

the official’s allegedly unconstitutional actions. Lachance v. Town of Charlton, 990

F.3d 14, 20 (1st Cir. 2021) (quoting Mitchell v. Miller, 790 F.3d 73, 77 (1st Cir. 2015)).

For reasons I will explain, Griffin has not carried that burden here.

1. Whether controlling authority or persuasive precedent placed

Griffin’s constitutional right “beyond debate”

Relying solely on Givhan, Griffin asserts that “President Cummings should

have obviously understood that terminating [her] for simply requesting data and

raising concerns with the Policy was a violation of her First Amendment rights.” ECF

No. 18 at 11-12. Griffin’s reliance on Givhan is unpersuasive for three reasons, and

thus Griffin has not met her burden of showing that her right was clearly established

at the time that her employment was terminated.

First, contrary to Griffin’s argument that her case is “identical” to Givhan, ECF

No. 18 at 8, the speech at issue in Givhan related to a teacher’s opposition to what

she believed were racially discriminatory hiring policies which did not directly impact

her position. See Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 412-13 (1979).

It is exceedingly unlikely that a 1979 Supreme Court decision, with facts bearing

little relation to those presented here, would have given fair warning to a public

official that terminating Griffin in response to her privately communicated emails

would violate her constitutional rights.

Second, even if the factual circumstances were similar, Givhan stands for the

specific proposition that freedom of speech under the First Amendment is not “lost to

the public employee who arranges to communicate privately with his employer rather

than to spread his views before the public.” Givhan, 439 U.S. at 415-16. See also

King v. Maine Dep’t of Corr., No. 1:13-cv-00163-JDL, 2015 WL 2092526, at *5 n.6 (D.

Me. May 5, 2015) (“[Givhan] supports the proposition that statements made only

inside the workplace may support a claim even though they are not shared with the

general public.”). The fact that the private nature of a public employee’s speech does

not foreclose First Amendment protections is insufficient to give fair warning to a

reasonable official that terminating an employee for privately speaking about their

employer’s health and safety policies would violate a clearly established right.

And third, Givhan did not analyze the considerations subsequently articulated

by the Supreme Court in Garcetti and Lane as to when a public employee’s speech is

made pursuant to their official responsibilities. See Lyons v. Vaught, 875 F.3d 1168,

1176 (8th Cir. 2017) (holding that pre-Garcetti cases were not instructive to the

qualified immunity analysis because those decisions “did not address whether the

speech at issue was made pursuant to the [professor]’s job duties, an issue that would

have changed the analysis and perhaps the result in each case”). These more recent

decisions require the Court to inquire into “the duties an employee actually is

expected to perform” and not just the employee’s title or job description, Garcetti, 547

U.S. at 424-25, and “whether the speech at issue is itself ordinarily within the scope

of an employee’s duties, not whether it merely concerns those duties,” Lane, 573 U.S.

at 240. Thus, it would not have been clear to every reasonable official in Cummings’s

position—based solely on Givhan—that Griffin spoke outside the scope of her

employment, let alone that she had a clearly established right to privately email the

Dean her concerns about the University’s mask and vaccine policies.

Turning to other controlling authority on this issue, First Amendment

decisions like Givhan, Lane, and Garcetti set forth “broad constitutional rule[s]” that

are clearly established. Decotiis, 635 F.3d at 37. More specifically, Lane sets forth

the general rule that speech merely relating to a public employee’s duties is not

deprived of First Amendment protections. Lane, 573 U.S. at 239. However, these

broad rules do not, without more, clearly establish that Griffin had a constitutionally

protected right to privately communicate her concerns about the University’s COVID-

19 policies to her superiors. This is particularly true in light of the fact-intensive

inquiry required to determine whether a public employee’s speech was made within

the scope of their employment, or whether they spoke as a private citizen.

Accordingly, I do not conclude—nor does Griffin point to any precedent that suggests

otherwise—that her right to speak privately to her superior regarding her concerns

about the University’s internal health and safety policies was clearly established at

the time that Cummings terminated her employment.

2. Whether Cummings had fair warning that his conduct would

violate a clearly established right under the particular factual

circumstances

Even if I were to conclude that, as posited in her opposition to the Motion to

Dismiss, Griffin’s right was clearly established, a reasonable official would not have

had fair warning that terminating Griffin’s employment under these particular

factual circumstances would violate her constitutional rights. The context and

content of Griffin’s speech, as analyzed under the Decotiis factors, produce a mixed

result as to whether Griffin was speaking within the scope of her employment and

hence entitled to constitutional protection. Although I have concluded, at this

preliminary stage, that Griffin has stated a plausible claim for relief, the contours of

Griffin’s right to privately communicate her concerns about the University’s COVID-

19 policies and request additional data was not sufficiently clear such that Cummings

would have had fair warning that his conduct would violate that right.

The private nature of Griffin’s speech—communicated through her employer-

provided email account directly to a superior—could have led a reasonable official to

believe that terminating Griffin’s employment would not violate a clearly established

right. Notably, in Roy v. Correct Care Solutions, LLC, the First Circuit explained

that “[s]ignificantly, [the plaintiff] only complained internally. And, although the

Supreme Court has established that form is never ‘dispositive’ of the public concern

question, it has sometimes seen a plaintiff's failure ‘to inform the public’ about her

concerns as cutting against First Amendment protection.” 914 F.3d 52, 73 (1st Cir.

2019) (citations omitted) (first quoting Garcetti, 547 U.S. at 420, then quoting

Connick v. Myers, 461 U.S. 138, 148 (1983)). The First Circuit concluded that

“[r]easonable officials in [the defendants’] positions, then, could have deemed Roy’s

complaints unprotected” and thus, were entitled to qualified immunity. Id. Here,

similarly, it would have been objectively reasonable for Cummings to believe, due to

the private nature of Griffin’s speech, that his conduct would not violate her First

Amendment rights.

Furthermore, in light of the content of Griffin’s speech, it would not have been

plainly obvious to every reasonable official in Cummings’s position whether Griffin’s

speech was constitutionally protected, or whether her speech merely amounted to a

privately communicated employee grievance. The state of the law when Cummings

terminated Griffin’s employment would have suggested that Griffin did not have a

constitutionally protected right to raise private employee grievances to her superiors.

See, e.g., Connick, 461 U.S. at 147 (“[W]hen a public employee speaks . . . 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.”); Weinstein v. Univ. of Conn., 753 F. App'x 66, 68 (2d Cir. 2018)

(concluding that a university dean was entitled to qualified immunity because “given

the context of [the former professor]’s comments, at a minimum, officials ‘of

“reasonable competence could disagree” on’ whether” the professor’s privately filed

complaint about nepotistic behavior and a labor grievance were private, employee

grievances related to his employment or “protected by the First Amendment” (quoting

Walczyk v. Rio, 496 F.3d 139, 154 (2d Cir. 2007))). And as this Court has previously

emphasized, although a public employee’s personal interest in speaking out on an

issue of public concern does not foreclose First Amendment protections, public

employees may not constitutionalize their personal grievances. See, e.g., King, 2015

WL 2092526, at *5 ; Gardner v. Thomas, No. 1:13-cv-331-GZS, 2014 WL 916397, at

*8-9 (D. Me. Mar. 10, 2014) (“Speech ‘calculated to redress personal grievances’ will

not support a [F]irst [A]mendment retaliation claim.” (quoting Ruotolo v. City of New

York, 514 F.3d 184, 189 (2d Cir. 2008))). Griffin’s email and attached letter—which

were comprised of complaints about Cummings’s comments at the Zoom luncheon

regarding COVID-19 vaccines, the new conditions that were being imposed on her in-

person teaching routine, and whether she could be persuaded to comply with the

University’s Policy—could have led a reasonable official to believe that she was

communicating personal grievances about her work environment to her superiors.

It also would not have been clear to a reasonable official whether Griffin’s

speech was made within the scope of her employment as a public employee and thus

not entitled to constitutional protection. Controlling precedent at the time could have

led a reasonable official in Cummings’s position to believe that Griffin did not have a

constitutionally protected right to the speech at issue, which was communicated

privately to her superior and pertained to various employment-related concerns

about the conditions imposed on her teaching responsibilities. See, e.g., O’Connell,

724 F.3d at 123 (concluding that an employee’s speech was “the quintessential

example of speech that owes its existence to a public employee’s professional

responsibilities” and was thus unprotected because it “consisted exclusively of several

instances in which [the plaintiff] communicated to [her superiors] her reluctance to

undertake personnel-related actions that she deemed either illegal or unethical . . .

[and thus] solely focused on events at her workplace and was made exclusively to

fulfill her responsibilities as [the agency]’s Human Resources Director”); Charette v.

St. John Valley Soil & Water Conservation Dist., 332 F. Supp. 3d 316, 364 (D. Me.

2018) (“This context [of complaints made to her supervisors] demonstrates that in

voicing her concerns about [her employer’s misuse of funds], Plaintiff was speaking

pursuant to her official duties. Indeed, Plaintiff herself explicitly stated that in

refusing to do anything illegal she was saying how she was going to ‘do [her] job.’”

(third alteration in original)).

Accordingly, regardless of whether Cummings did in fact violate Griffin’s First

Amendment rights—which is yet to be determined—a reasonable University official

in Cummings’s position could have reasonably believed that he was not violating

Griffin’s constitutional rights by terminating her employment. Thus, because

controlling authority or a consensus of persuasive authority would not have placed

the constitutional question beyond debate under the particular factual circumstances

of this case, and because Cummings would not have had fair warning that his conduct

would violate a clearly established right, Cummings is entitled to qualified immunity.

III. CONCLUSION

For the reasons stated above, the Defendants’ Partial Motion to Dismiss (ECF

No. 17) is GRANTED IN PART and DENIED IN PART as follows:

1. Granted as to Count One brought against Cummings in his individual

capacity, and denied as to Count One brought against Cummings in his

official capacity;

2. Granted as to Count One against the University in its entirety;

3. Granted as to Count Two in its entirety; and

4. Granted as to the punitive damages claims arising under Counts III and

IV.

It is further ORDERED that the Amended Complaint (ECF No. 15) is

DISMISSED IN PART as to Count One against the University, Count One against

Cummings in his individual capacity, Count Two in its entirety, and the claims for

punitive damages arising under Counts III and IV.

SO ORDERED.

Dated: August 23, 2023

/s/ Jon D. Levy

CHIEF U.S. DISTRICT JUDGE