# Mirll v. University of Central Oklahoma

> District Court, W.D. Oklahoma · June 4, 2020

URL: https://www.frixlaw.com/law-library/cases/10388312

## Case

- **Court:** District Court, W.D. Oklahoma
- **Decided:** June 4, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10388312

## How later opinions describe it (automated extraction)

- explaining that “after Garcetti, it is apparent that the Pickering analysis of freedom of speech retaliation claims is a five step inquiry” that will be referred to as “the Garcetti/Pickering analysis” (internal quotation marks omitted)

## Opinion text

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

TERESA MIRLL, )
)
Plaintiff, )
)
v. ) Case No. CIV-19-1143-G
)
STATE OF OKLAHOMA ex rel. )
UNIVERSITY OF CENTRAL )
OKLAHOMA et al., )
)
Defendants. )

ORDER
Plaintiff Teresa Mirll filed this lawsuit on November 6, 2019, alleging violations of
her federal and state constitutional rights against three individuals: Charlotte Simmons,
PhD, in her individual capacity as Vice President of Academic Affairs for the University
of Central Oklahoma (“UCO”); Darla Sherman, in her individual capacity as Tutoring
Center Manager for UCO; and Erika Cerda, in her individual capacity as Employee
Relations Director for UCO. See Pet. (Doc. No. 1-1). An amended complaint was filed on
January 7, 2020. See Am. Compl. (Doc. No. 4).1
Now before the Court is a Motion to Dismiss filed by Defendant Cerda (Doc. No.
8), as well as Plaintiff’s Response (Doc. No. 15) and Defendant Cerda’s Reply (Doc. No.
16). Also pending is a Motion to Dismiss filed jointly by Defendants Simmons and

1 All claims against a fourth defendant, State of Oklahoma ex rel. University of Central
Oklahoma, have been dismissed by separate order.
Sherman (Doc. No. 14), to which Plaintiff has responded (Doc. No. 17), and on which
Defendants have replied (Doc. No. 22).2
I. Plaintiff’s Allegations

In her Amended Complaint, Plaintiff alleges that Defendants violated her rights in
connection with her employment at UCO. Plaintiff alleges that she was hired by Defendant
Sherman in January 2014 as a Writing Tutor and was eventually promoted to the position
of Tutoring Center Administrative Assistant. See Am. Compl. ¶¶ 5-8.
Plaintiff alleges that after she began working as the Administrative Assistant she

discovered “numerous issues,” including the fact that a certain tutor “consistently reported
and was paid for time he did not work.” Id. ¶¶ 10-11. Plaintiff reported the tutor’s time
theft to Defendant Sherman, but Defendant Sherman “made clear that she had no intention”
of remedying the conduct. Id. ¶¶ 12-14. Plaintiff relayed her concerns to Defendant
Simmons, but “no remedial action was taken,” and Defendant Sherman again expressed

her desire not to take corrective measures. Id. ¶¶ 15-19.
On or about December 15, 2017, Plaintiff then “informed Defendant Cerda” that the
tutor “was fraudulently reporting his work hours, i.e., stealing public funds,” and that
nothing had been done despite Defendant Sherman’s and Defendant Simmons’ knowledge
of the issue. Id. ¶ 21. Later that same day, “Defendants Cerda and Simmons fired

Plaintiff.” Id. ¶ 23 (“Defendant Cerda said a collective decision was made, including [by]
Defendant Simmons, to terminate Plaintiff’s employment.”).

2 Because the same arguments are raised by both Motions, the Court cites only to the first-
filed Motion, Response, and Reply.
Plaintiff alleges that her “reports of unlawful activity” were identified as the reason
for her termination and that “the parties at issue admitted they were retaliating against
Plaintiff for her First Amendment protected activity.” Id. ¶ 24. “Specifically, Defendant

Cerda stated that Plaintiff spent too much time reporting [the tutor’s] misconduct, rather
than focusing on her own work.” Id. ¶ 25. Plaintiff alleges that her own work performance
had been satisfactory and that UCO’s guidelines were not followed in terminating Plaintiff.
See id. ¶ 26.
Plaintiff brings two claims, each against all three individual Defendants in their

individual capacities: (i) violation of Plaintiff’s First Amendment right to freedom of
speech, pursuant to 42 U.S.C. § 1983; and (ii) conspiracy to deprive Plaintiff of her
constitutional right to free speech, in violation of 42 U.S.C. § 1985(3). See id. ¶¶ 28-39.
Plaintiff seeks compensatory damages as well as punitive damages. See id. ¶ 42.
II. Standard of Review

In analyzing a motion to dismiss under Rule 12(b)(6), the court “accept[s] as true
all well-pleaded factual allegations in the complaint and view[s] them in the light most
favorable to the plaintiff.” Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231,
1235 (10th Cir. 2013). A complaint fails to state a claim on which relief may be granted
when it lacks factual allegations sufficient “to raise a right to relief above the speculative

level on the assumption that all the allegations in the complaint are true (even if doubtful
in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (footnote and citation
omitted); see Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (“[T]o withstand
a motion to dismiss, a complaint must contain enough allegations of fact to state a claim to
relief that is plausible on its face.” (internal quotation marks omitted)). Bare legal
conclusions in a complaint are not entitled to the assumption of truth; “they must be
supported by factual allegations” to state a claim for relief. Ashcroft v. Iqbal, 556 U.S.

662, 679 (2009).
III. Defendants’ Motions
A. Plaintiff’s First Amendment Claims
Defendants first argue that Plaintiff fails to state a viable claim for violation of her
First Amendment rights based on Defendants’ alleged conduct. “To state a claim under §

1983, a plaintiff must allege the violation of a right secured by the Constitution and laws
of the United States, and must show that the alleged deprivation was committed by a person
acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). Here, Defendants
do not dispute that they were acting under color of state law in connection with Plaintiff’s
termination from her position as Administrative Assistant. See id. at 50 (“[G]enerally, a

public employee acts under color of state law . . . while exercising his responsibilities
pursuant to state law.”). Defendants’ challenge is broadly aimed at whether Plaintiff can
show that, in doing so, Defendants “subject[ed]” Plaintiff, “or cause[d] [Plaintiff] to be
subjected,” “to a deprivation of . . . her lawful rights.” Porro v. Barnes, 624 F.3d 1322,
1327 (10th Cir. 2010) (internal quotation marks omitted).

A government employee “does not relinquish First Amendment rights to comment
on matters of public interest by virtue of government employment.” Connick v. Mvers,
461 U.S. 138, 140 (1983). “Rather, the First Amendment protects a public employee’s
right, in certain circumstances, to speak as a citizen addressing matters of public concern.”
Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). “However, the interests of public
employees in commenting on matters of public concern must be balanced with the
employer’s interests in promoting the efficiency of the public services it performs through

its employees.” Leverington v. City of Colo. Springs, 643 F.3d 719, 723 (10th Cir. 2011)
(internal quotation marks omitted).
Through two decisions—Pickering v. Board of Education, 391 U.S. 563, 568
(1968), and Garcetti, 547 U.S. at 417—the Supreme Court has articulated five factors to
be considered in analyzing public-employee free-speech cases. Leverington, 643 F.3d at

724 (explaining that “after Garcetti, it is apparent that the Pickering analysis of freedom
of speech retaliation claims is a five step inquiry” that will be referred to as “the
Garcetti/Pickering analysis” (internal quotation marks omitted)). The Tenth Circuit has
summarized these factors as follows:
(1) whether the speech was made pursuant to an employee’s official duties;
(2) whether the speech was on a matter of public concern; (3) whether the
government’s interests, as employer, in promoting the efficiency of the
public service are sufficient to outweigh the plaintiff’s free speech interests;
(4) whether the protected speech was a motivating factor in the adverse
employment action; and (5) whether the defendant would have reached the
same employment decision in the absence of the protected conduct.

Eisenhour v. Weber Cty., 744 F.3d 1220, 1227-28 (10th Cir. 2014) (internal quotation
marks omitted). “The first three elements are issues of law for the court to decide, while
the last two are factual issues typically decided by the jury.” Knopf v. Williams, 884 F.3d
939, 945 (10th Cir. 2018) (internal quotation marks omitted).
1. Whether the Speech Was Made Pursuant to Official Duties
Defendants contend, first, that Plaintiff’s alleged communications regarding the
tutor’s fraudulent activities were made not as a citizen but pursuant to her official duties,

such that First Amendment protection does not apply. See Hesse v. Town of Jackson, 541
F.3d 1240, 1249 (10th Cir. 2008) (“If the employee speaks pursuant to his official duties,
then there is no constitutional protection because the restriction on speech simply reflects
the exercise of employer control over what the employer itself has commissioned or
created.” (internal quotation marks omitted)).3

The Tenth Circuit takes a “broad view” of what constitutes speech that is pursuant
to an employee’s official duties, and speech may be so categorized “even if it deals with
activities that the employee is not expressly required to perform.” Thomas v. City of
Blanchard, 548 F.3d 1317, 1324 (10th Cir. 2008) (internal quotation marks omitted).
Courts examine the instances of speech on a case-by-case basis, “looking both to the

content of the speech, as well as the employee’s chosen audience, to determine whether the
speech is made pursuant to an employee’s official duties.” Rohrbough v. Univ. of Colo.
Hosp. Auth., 596 F.3d 741, 746 (10th Cir. 2010) (noting that courts focus on whether the
speech stemmed from and was of the type of work the employee was paid to do). “[T]he

3 Defendant Cerda attempts to rely upon a job posting that is attached to her Motion as
evidence of Plaintiff’s duties while employed at UCO. See Def. Cerda Mot. Ex. 1 (Doc.
No. 8-1). The Court has disregarded this document, which was not referenced in the
Amended Complaint, and has likewise disregarded a declaration submitted by Plaintiff
(Doc. No. 15-1) as matters outside the pleadings and, therefore, not properly reviewable in
determining a Rule 12(b)(6) motion. See Fed. R. Civ. P. 12(b)(6); Lowe v. Town of
Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998).
ultimate question is whether the employee speaks as a citizen or instead as a government
employee.” Id. (internal quotation marks omitted).
Here, the relevant pleading avers that Plaintiff was employed as a Tutoring Center

Administrative Assistant when she “discovered numerous issues,” including the tutor’s
time theft. Am. Compl. ¶ 11. When Plaintiff reported the misconduct, she explained to
her supervisor, but also to the Employee Relations Director and the Vice President of
Academic Affairs, that “based on [her] faculty training, time theft constituted
embezzlement and was unlawful.” Id. ¶ 14; see also id. ¶ 30 (“[Plaintiff’s] reports were

calculated to disclose impropriety and other malfeasance by Defendants.”). “Plaintiff’s
reports of unlawful activity were identified as the very reason for her termination,” and
“Defendant Cerda stated that Plaintiff spent too much time reporting Bilbrey’s misconduct,
rather than focusing on her own work.” Id. ¶¶ 24, 25 (emphasis added).
Viewing these factual allegations in the light most favorable to Plaintiff, Plaintiff

has pleaded, beyond mere speculation, that her reporting was made as a public citizen rather
than as an employee. Although Plaintiff sought action from several employees and alleges
that she eventually “escalated” her complaint, id. ¶ 21, the pleading does not demonstrate
that Plaintiff merely went up the chain of command in seeking resolution of the issue, as
Defendants argue. Cf. Rohrbough, 596 F.3d at 747 (“[S]peech directed at an individual or

entity outside of an employee’s chain of command is often outside of an employee’s
official duties.”). Similarly, although Defendants argue that such reporting was “part of
[Plaintiff’s] job duties,” Def. Cerda Reply at 3, at this stage the Court is limited to
reviewing the Amended Complaint only. The pleading in no way confirms that view. See
Lane v. Franks, 573 U.S. 228, 240 (2014) (noting that the “critical question” is “whether
the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether
it merely concerns those duties”).

For purposes of Rule 12(b)(6), Plaintiff has adequately and plausibly pleaded that
her speech was not made pursuant to her employment duties. See id. (“[T]he mere fact that
a citizen’s speech concerns information acquired by virtue of his public employment does
not transform that speech into employee—rather than citizen—speech.”); Lobato v. N.M.
Env’t Dep’t, 838 F. Supp. 2d 1213, 1227 (D.N.M. 2011) (“A court may find that an

employee spoke out as a citizen even where the expression was made at work, and involved
actions occurring in the workplace.”).
2. Whether the Speech Was on a Matter of Public Concern
To adequately plead this element, Plaintiff must allege that her speech “involve[d]
a matter of public concern and not merely a personal issue internal to the workplace.”

Moore v. City of Wynnewood, 57 F.3d 924, 931 (10th Cir. 1995). Defendants argue that
because Plaintiff’s complaints focused upon a single tutor’s malfeasance, and because
Plaintiff requested that remedial action be taken, the complaints “involved internal
employee disputes” rather than a matter of public concern. Def. Cerda Mot. at 7.
Although Plaintiff’s pleading does portray her complaints as focused upon a single

tutor, construed in her favor the allegations reflect that they nonetheless involved more
than a mere personal grievance. See, e.g., Am. Compl. ¶¶ 10 (alleging that Plaintiff
complained that the tutor was “mismanaging public funds”), 17 (alleging that Plaintiff
explained that the conduct “resulted in thousands of dollars of public funds being stolen
over the years). “Speech which discloses any evidence of corruption, impropriety, or other
malfeasance on the party of [government] officials, in terms of content, clearly concerns
matters of public import.” Conaway v. Smith, 853 F.2d 789, 796 (10th Cir. 1988). Plaintiff

therefore has adequately pleaded that her speech involved a matter of public concern for
purposes of the Garcetti/Pickering analysis.
3. Qualified Immunity
Defendants argue that they are entitled to qualified immunity on Plaintiff’s First
Amendment Claim. “Qualified immunity protects officials from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Thomas v. Kaven, 765 F.3d 1183, 1194
(10th Cir. 2014) (internal quotation marks omitted). “The relevant, dispositive inquiry in
determining whether a right is clearly established is whether it would be clear to a
reasonable officer that his conduct was unlawful in the situation he confronted.” Stewart

v. Beach, 701 F.3d 1322, 1330 (10th Cir. 2012) (internal quotation marks omitted).
While a defendant may assert the defense of qualified immunity in a motion to
dismiss, doing so “subjects the defendant to a more challenging standard of review than
would apply on summary judgment.” Thomas, 765 F.3d at 1194 (internal quotation marks
omitted). “At [the motion to dismiss] stage, it is the defendant’s conduct as alleged in the

complaint that is scrutinized for ‘objective legal reasonableness.’” Behrens v. Pelletier,
516 U.S. 299, 309 (1996) (emphasis omitted). “In resolving a motion to dismiss based on
qualified immunity, the court considers (1) whether the facts that a plaintiff has alleged
make out a violation of a constitutional right, and (2) whether the right at issue was clearly
established at the time of defendant’s alleged misconduct.” Keith v. Koerner, 707 F.3d
1185, 1188 (10th Cir. 2013) (internal quotation marks omitted); see Robbins, 519 F.3d at
1249.

Defendants’ assertion of qualified immunity rests upon their contentions of
inadequate pleading addressed above. See Def. Cerda Mot. 8-9. But as noted above, “the
facts that [Plaintiff] has alleged” do “make out a violation of a constitutional right.” Keith,
707 F.3d at 1188 (internal quotation marks omitted). Further, from the wide range of
authorities cited above it is clear that these First Amendment rights were clearly established

at the time of Plaintiff’s termination in December 2017. See supra; Am. Compl. ¶¶ 8, 20,
23; see also Prager v. LaFaver, 180 F.3d 1185, 1192 (10th Cir. 1999) (finding that prior
decisions “clearly established that an employee’s strong interest in disclosing
governmental corruption outweighs unsubstantiated assertions of workplace disruption and
put [the defendant] on notice that the conduct alleged in [the plaintiff’s] complaint [of

suspension and termination of employment] would violate the law”). Dismissal of these
claims is not warranted on this basis. See generally James W. Moore, 2 Moore’s Federal
Practice § 12.34[4][b] (3d ed. 2019) (noting that establishment of the defense of qualified
immunity ordinarily requires factual review and should not support dismissal for failure to
state a claim).4

4 This finding “does not foreclose Defendants from reasserting their entitlement to qualified
immunity on a motion for summary judg[]ment should [Plaintiff’s] allegations in the
complaint prove to be unfounded.” Seamons v. Snow, 84 F.3d 1226, 1238 (10th Cir. 1996)
(reversing a grant of qualified immunity on a motion to dismiss where it was “premature,
absent a factual record”). The Court makes no finding at this stage as to whether
Defendants will be able to show entitlement to qualified immunity when Plaintiff “can no
B. Plaintiff’s Conspiracy Claim
Plaintiff additionally alleges that Defendants “conspired to deprive Plaintiff of her
right to free speech.” Am. Compl. ¶ 36; see also id. ¶¶ 34-39 (citing 42 U.S.C. § 1985(3)).

Defendants argue that Plaintiff fails to state a claim pursuant to § 1985(3), because the
Amended Complaint lacks any allegation of class-based or racially discriminatory animus
or a factual basis to support such an allegation. See Def. Cerda Mot. at 9-10 (citing Bisbee
v. Bey, 39 F.3d 1096, 1102 (10th Cir. 1994) (“Here, plaintiff has made no allegations of
race or class-based animus. As such, he has not stated a claim under section 1985.”).

Plaintiff responds that she “intended to assert her conspiracy claim under § 1983,” not §
1985(3), and that she has sufficiently stated a claim under that statute. Pl.’s Cerda Resp.
at 14-15.
To adequately allege a conspiracy claim under § 1983, a plaintiff must allege
specific facts that show “a combination of two or more persons acting in concert” and “an

allegation of a meeting of the minds, an agreement among the defendants, or a general
conspiratorial objective.” Brooks v. Gaenzle, 614 F.3d 1213, 1227-28 (10th Cir. 2010);
see also Dixon v. City of Lawton, 898 F.2d 1443, 1449 (10th Cir. 1990). Plaintiff’s sole
relevant factual averment is the allegation that “Defendant Cerda said a collective decision
was made, including Defendant Simmons, to terminate Plaintiff’s employment.” Am.

Compl. ¶ 23; see Pl.’s Cerda Resp. at 15. This isolated statement does not allow a
reasonable inference to be drawn that these three Defendants “acted in concert to deprive

longer rest on the pleadings.” Thomas, 765 F.3d at 1194 (internal quotation marks
omitted).
[Plaintiff] of [her] constitutional rights.” Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504,
533 (10th Cir. 1998).°
CONCLUSION
As outlined herein, the Motions to Dismiss (Doc. Nos. 8, 14) are GRANTED IN
PART and DENIED IN PART. Plaintiff's § 1983 claims for violation of the First
Amendment shall proceed. Plaintiff's conspiracy claims are dismissed without prejudice
pursuant to Federal Rule of Civil Procedure 12(b)(6).
Defendants’ Motion to Strike (Doc. No. 25) is DENIED AS MOOT.
IT IS SO ORDERED this 4th day of June, 2020.

CHARLES B. GOODWIN
United States District Judge

> Plaintiff requests that the Court consider allowing her leave to amend in lieu of dismissal
of this claim but fails to adequately inform the Court how amendment would resolve these
deficiencies. Cf. LCvR 15.1 (requiring that the proposed pleading be submitted with a
motion to amend).

12

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10388312. Public record. Not legal advice.