Agnew v. St. Louis County

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION

JENNIFER AGNEW, et al., )

)

Plaintiffs, )

)

v. ) Case No. 4:19-cv-03063-SEP

)

ST. LOUIS COUNTY, et al., )

)

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before the Court on Defendants St. Louis County, Sam Page, Spring

Schmidt, and Carole Baskin’s Motion to Dismiss or Alternative Motion for Summary Judgment.

Doc. [8]. The motion is fully briefed. For the reasons set forth below, the Motion to Dismiss

will be granted in part and denied in part, and the Motion for Summary Judgment will be denied.

FACTS AND BACKGROUND1

This is a First Amendment challenge to St. Louis County’s closure of a volunteer

program at a pet shelter. Plaintiffs Jennifer Agnew and Anne Cashel, who had been volunteers

with the program, filed suit on November 7, 2019, alleging that its closure was in retaliation for

their having publicly criticized the shelter. Doc. [1]. Defendants filed a Motion to Dismiss or

Alternative Motion for Summary Judgment on January 1, 2020. Doc. [8].

Defendants in this case include St. Louis County (the “County”); Sam Page, the County

Executive; Spring Schmidt, a County employee and Director of the Department of Public Health;

and Carole Baskin, a County employee and Director of the Department of Public Health.

St. Louis County Animal Care and Control (“ACC”) is a governmental office of the St.

Louis County Department of Health that maintains and operates the St. Louis County Pet

Adoption Center (the “Shelter”). Doc. [1] ¶¶ 11-12. The Shelter has a volunteer program where

1 The facts here are taken from the allegations set out in Plaintiff’s complaint. Doc. [1]. The Court

assumes their truth for purposes of its analysis of the Motion to Dismiss. See Ashcroft v. Iqbal, 556 U.S.

662, 678-79 (2009); Neitzke v. Williams, 490 U.S. 319, 326-27 (1989).

volunteers participate in various activities, such as walking and interacting with the animals,

assisting in adoptions, and performing other daily functions related to animal care. Id. ¶ 17.

Around October 25, 2019, Defendants terminated all 425 ACC volunteers, including Plaintiffs

Agnew and Cashel, who were both active members in the ACC volunteer program.

Plaintiffs allege they witnessed and documented various instances of Shelter

mismanagement, including “unnecessary euthanasia of otherwise adoptable animals;

mistreatment of the animals by staff; improper manipulation of euthanasia statistics . . . and

failures by staff and management to provide humane care and treatment to the Shelter animals.”

Id. ¶ 25. Plaintiff Agnew submitted open record requests to the County regarding the

management of the Shelter, and she made the records publicly available. Id. ¶ 26. Plaintiffs

Agnew and Cashel, as well as other ACC volunteers, voiced these concerns at Defendant St.

Louis County’s Animal Advisory Board meetings and County Council public meetings. Id. ¶ 27.

Plaintiffs also communicated with elected County officials, members of the media, and Shelter

management, including but not limited to Defendant Schmidt, Defendant Baskin, and Katrina

Utz. Id. Plaintiffs claim they engaged in these public acts of speech from December 2018 until

October 2019. According to Plaintiffs, after they publicly criticized the Shelter, Defendants

began to restrict the privileges of volunteers by denying access to certain rooms, restricting

access to animal information, and limiting contact with the animals. Id. ¶ 28.

Defendants have been the subject of negative media coverage criticizing the Shelter, its

management, and its “statistical sham.” Id. ¶¶ 29-30. At least two media outlets credited Shelter

volunteers as their information source. Id. ¶ 30. Plaintiffs claim that those journalists were

referring, at least in part, to Plaintiffs’ statements. Id. ¶ 30. Defendant Schmidt responded

publicly to the media’s statements, both to the press and before the County Council. Id. ¶ 33.

On or about October 9, 2019, the Riverfront Times published a lengthy article about the Shelter’s

mismanagement and poor conditions. Id. ¶ 36. The article reported it interviewed volunteers

and County officials, who offered “clashing viewpoints on who deserves the most fault.” Id.

¶ 38. On or about October 16, 2019—one week after the Riverfront Times article—Defendant

Baskin met with Shelter volunteers and stated that the County is not required to have volunteers,

which Plaintiffs understood to be a threat to the ACC volunteer program. Id. ¶¶ 40-41

On or about October 22, 2019, Plaintiff Agnew intervened to stop a dog fight when

Shelter employees’ attempts to resolve the situation violated Shelter procedure. Id. ¶ 42. As a

result of that intervention, Agnew was suspended. Id. Three days later, on October 25, 2019,

Plaintiff Agnew posted on her personal social media page about the Shelter’s mismanagement

and her suspension. Id. ¶ 46. Both Plaintiffs are affiliated with social media groups that are

critical of the Shelter, and both have made posts critical of the Shelter on personal pages and in

closed groups. Additionally, Plaintiffs Agnew and Cashel are affiliated with St. Louis County

SAVE, a not-for-profit which has publicly criticized the Shelter. Plaintiffs assert that Defendants

were “surreptitiously monitoring the social media postings and pages of the volunteers, both

personal and group pages,” and Plaintiffs cite Defendant Schmidt as stating she and other County

employees “had eyes on” the social media pages. Id. ¶¶ 55-56.

On or about October 25, 2019,2 Defendants terminated all Shelter volunteers,

approximately 425 people, including Plaintiffs Agnew and Cashel. Id. ¶ 57. The Shelter

explained that after this date, prospective volunteers had to submit an application, interview, and,

if accepted, attend a restructured orientation. Every volunteer was required to reapply to

continue volunteering. Id. ¶ 58. Plaintiffs allege that Defendants terminated the entire volunteer

staff “in order to chill and discourage future speech by any volunteer who would potentially seek

to return to the volunteer program.” Id. ¶ 72. They claim that volunteers under the rebooted

program are required to sign an unlawful non-disclosure agreement that obliges them to

surrender their cell phones before entering non-public areas of the Shelter to prevent

documentation of these areas and the animals. Id. ¶ 78.

Plaintiffs’ Complaint has ten Counts:

Count I: First Amendment Retaliation for the Exercises of Protected Speech

(Plaintiff Agnew against Defendant Schmidt)

Count II: First Amendment Retaliation for the Exercises of Rights to Freedom

of Association (Plaintiff Agnew against Defendant Schmidt)

Count III: First Amendment Retaliation for the Exercises of Protected Speech

(Plaintiff Agnew against Defendant Baskin)

Count IV: First Amendment Retaliation for the Exercises of Rights to Freedom

of Association (Plaintiff Agnew against Defendant Baskin)

2 The Complaint states Plaintiff Agnew’s social media post was on October 25, 2019. Doc. [1] ¶¶ 46, 53.

The Complaint later states that Defendants terminated all volunteers on October 25, 2019, and that this

was “a mere two (2) days after Plaintiff Agnew’s widely circulated social media post.” Id. ¶ 57. That

temporal discrepancy has no effect on the analysis herein. Therefore, the Court will use October 25,

2019, as the date of both the social media post and the termination of the volunteer program.

Count V: Unlawful Policy, Practice, or Custom (Plaintiff Agnew against

Defendants St. Louis County and Page)

Count VI: First Amendment Retaliation for the Exercises of Protected Speech

(Plaintiff Cashel against Defendant Schmidt)

Count VII: First Amendment Retaliation for the Exercises of Rights to Freedom

of Association (Plaintiff Cashel against Defendant Schmidt)

Count VII: First Amendment Retaliation for the Exercises of Protected Speech;

Plaintiff Anne Cashel against Defendant Carole Baskin

Count IX: First Amendment Retaliation for the Exercises of Rights to Freedom

of Association; Plaintiff Anne Cashel against Defendant Carole Baskin

Count X: Unlawful Policy, Practice, or Custom; Plaintiff Anne Cashel against

Defendants St. Louis County and Sam Page

Defendants move to dismiss all counts for lack of subject matter jurisdiction and for failure to

state a claim. See Fed. R. Civ. P. 12(b)(1), 12(b)(6). In the alternative, they claim to be entitled

to summary judgment on all counts. See Fed. R. Civ. P. 56.

LEGAL STANDARDS

I. Motion to Dismiss

A. Rule 12(b)(1)

Defendants move to dismiss Plaintiffs’ lawsuit under Federal Rule of Civil Procedure

12(b)(1) for lack of subject matter jurisdiction. See U.S. v. Morton, 467 U.S. 822, 828 (1984).

Federal subject matter jurisdiction requires the plaintiff to “demonstrate an actual, ongoing case

or controversy within the meaning of Article III.” Republican Party of Minn. v. Klobuchar, 381

F.3d 785, 789-90 (8th Cir. 2004). “A case or controversy requires a claim that is ripe and a

plaintiff who has standing.” Archdiocese of St. Louis v. Sebelius, 920 F. Supp. 2d 1018, 1023

(E.D. Mo. 2013). A claim is not ripe if the injury “rests upon contingent future events that may

not occur as anticipated.” KCCP Trust v. City of N. Kansas City, 432 F.3d 897, 899 (8th Cir.

2005).

To justify dismissal under Rule 12(b)(1), “the complaint must be successfully challenged

on its face or on the factual truthfulness” of its assertions. Titus v. Sullivan, 4 F.3d 590, 593 (8th

Cir. 1993); see also Archdiocese of St. Louis, 920 F. Supp. at 1023 (citing Osborn v. United

States, 918 F.2d 724, 729 n.6 (8th Cir. 1990)). In order to evaluate the challenge, the Court must

first identify the type of challenge brought by the defendant. Moynihan v. Gutierrez, No.

4:07CV00506 ERW, 2007 WL 2885342, at *2 (E.D. Mo. Sept. 27, 2007). In a factual challenge,

the defendant challenges the factual truthfulness of the assertions, and the Court may consider

matters outside the pleadings. Osborn, 918 F.2d at 729. In a facial challenge, the defendant

claims the complaint “fails to allege an element necessary for subject matter jurisdiction,” and

the Court presumes true “all of the factual allegations concerning jurisdiction.” Titus, 4 F.3d at

593.

B. Rule 12(b)(6)

The purpose of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) is to

test the legal sufficiency of a complaint. When considering a Rule 12(b)(6) motion, the Court

assumes all of a complaint’s factual allegations to be true and construes all reasonable inferences

in favor of the nonmoving party. See Neitzke v. Williams, 490 U.S. 319, 326-27 (1989).

Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain “a short

and plain statement of the claim showing that the pleader is entitled to relief.” To survive a

motion to dismiss, the complaint must allege facts supporting each element of the plaintiff’s

claims, and the claims cannot rest on mere speculation. Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 555 (2007). Specifically, the complaint “must allege more than ‘[t]hreadbare recitals

of the elements of a cause of action, supported by mere conclusory statements’” and instead must

“allege sufficient facts that, taken as true, ‘state a claim to relief that is plausible on its face.’”

K.T. v. Culver-Stockton Coll., 865 F.3d 1054, 1057 (8th Cir. 2017) (quoting Iqbal, 556 U.S. at

678). The issue in considering such a motion is not whether the plaintiff will ultimately prevail,

but whether the plaintiff is entitled to present evidence in support of the claim. See Twombly,

550 U.S. at 556.

II. Motion for Summary Judgment

Summary judgment is appropriate if “there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving

party bears the initial burden of demonstrating the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Farver v. McCarthy, 931 F.3d 808, 811 (8th

Cir. 2019). The burden then shifts to the non-movant to “present specific evidence, beyond

‘mere denials or allegations [that] . . . raise a genuine issue for trial.’” Farver, 931 F.3d at 811

(quoting Wingate v. Gage Cnty. Sch. Dist., 528 F.3d 1074, 1079 (8th Cir. 2008)).

“A court considering a motion for summary judgment must view the evidence and

inferences that may be reasonably drawn from the evidence in the light most favorable to the

nonmoving party.” Dryer v. Nat’l Football League, 814 F.3d 938, 941-42 (8th Cir. 2016). A

Court may not grant summary judgment if “the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

DISCUSSION

I. Motion to Dismiss

A. Rule 12(b)(1)

Defendants contend the Court lacks subject-matter jurisdiction because “Plaintiffs have

failed to plead sufficient facts to show that their claims are ripe for adjudication” by failing to

“establish that they have sought and been denied volunteer positions with the new ACC

volunteer program.” Doc. [18] ¶ 1. Defendants do not challenge the truthfulness of any fact;

they agree Plaintiffs were no longer part of the old ACC volunteer program as of October 25,

2019. Instead, Defendants contend that on the face of the Complaint, Plaintiffs have not

established a “case or controversy” because the alleged injury is not ripe for adjudication.

Plaintiffs state that the injury is their “actual termination,”3 Doc. [19] at 2, but

Defendants maintain that Plaintiffs have not been injured unless they have sought and been

denied volunteer positions with the new ACC program, Doc. [18] ¶ 1. Defendants argue that the

actual termination cannot be an injury because it arises out of the denial of a government

benefit—i.e., the ACC volunteer program—and citizens have no right to the existence of a

government benefit.4 See Perry v. Sinderman, 408 U.S. 593, 597 (1972); Cuffley v. Mickes, 208

3 Plaintiffs also state their injury as the “actual conditioning of any return to service upon signing a non-

disclosure agreement.” Doc. [9] at 2. Because the Court finds Plaintiffs’ alleged termination a sufficient

harm to confer standing, it need not address whether conditioning a government benefit on signing a non-

disclosure agreement also qualifies.

4 The Supreme Court in Perry v. Sinderman, 408 U.S. 593, 597 (1972), stated that legal entitlement to a

government position is not required for it to be considered a government benefit. In that case, the plaintiff

was an untenured teacher who claimed his contract was not renewed because he publicly criticized his

employer. This extends to government volunteers because volunteering for the government, like working

for it, is a benefit, and it is irrelevant whether there is a legal entitlement to the position. The Eighth

Circuit in Cuffley v. Mickes, 208 F.3d 702, 707-08, 708 n.5 (8th Cir. 2008), cites Perry when stating legal

entitlement is not required. The Eighth Circuit also states that at least two other circuits have directly

applied this analysis to volunteer government positions. Furthermore, Defendants do not dispute the

application of Perry to volunteer positions.

F.3d 702, 707-08, 708 n.5 (8th Cir. 2008) (citing Perry, 408 U.S. at 596-98). The injury,

therefore, must be Plaintiffs’ potential rejection from the rebooted program, which either will not

happen (as is the case for Plaintiff Cashel, who is currently a volunteer), or is too speculative (as

is the case for Plaintiff Agnew, who has not applied). But in Perry, the Supreme Court held that

even though there is no right to a government benefit, such a benefit still cannot be denied on a

basis that infringes a constitutionally protected interest. 408 U.S. at 597. Thus, if volunteers are

terminated from a government volunteer program in retaliation for the exercise of free speech or

association—which is what Plaintiffs’ Complaint alleges—that is an injury. Accordingly,

Plaintiffs have pleaded facts sufficient to establish subject matter jurisdiction, and the Rule

12(b)(1) motion will be denied.

B. Rule 12(b)(6)

Defendants’ Motion to Dismiss seeks dismissal of all ten counts in the Complaint for

failure to state a claim. Defendants contend that Plaintiffs failed to state an underlying

constitutional claim regarding the elimination of the ACC volunteer program, and that they did

not plead sufficient facts to show that but for their speech, the ACC volunteer program would not

have been rebooted. Doc. [8] ¶ 2. The Motion also seeks dismissal of Defendant Sam Page, who

was sued in his official capacity only.

In what follows, the Court will analyze substantively similar claims together.

i. Plaintiffs’ Free Speech Retaliation Claims

Plaintiffs bring four counts of First Amendment retaliation for the exercise of protected

speech, including: Count I, Plaintiff Agnew against Defendant Schmidt; Count III, Plaintiff

Agnew against Defendant Baskin; Count VI, Plaintiff Cashel against Defendant Schmidt; and

Count VIII, Plaintiff Cashel against Defendant Baskin. In those Counts, Plaintiffs allege that

Schmidt and Baskin retaliated against them for exercising their right to free speech, in violation

of 42 U.S.C. § 1983, by terminating them for publicly criticizing the Shelter. Plaintiffs bring

their retaliation claims against Schmidt and Baskin in their individual capacities.

Retaliation by a government actor in response to an exercise of free speech does qualify

as a basis for § 1983 liability. See Nieves v. Bartlett, 139 S. Ct. 1715, 1722 (2019); Pendleton v.

St. Louis Cnty., 178 F.3d 1007, 1011 (8th Cir. 1999). To establish a retaliation claim under

§ 1983, each Plaintiff must show: 1) “[s]he was engaged in activity protected by the First

Amendment,” 2) the “government official” took adverse employment action against [her],” and

3) “[her] protected speech was a substantial or motivating factor in the [government official’s]

decision to take the adverse employment action.” Davenport v. Univ. of Ark. Bd. of Trs. 553

F.3d 1110, 1113 (8th Cir. 2009).

The Court’s evaluation of the first and second elements is identical for all four free

speech retaliation claims, because both Plaintiffs alleged the same public speech and the same

adverse employment action in each Count. Therefore, the Court will address these elements

together for all four Counts and will then separately analyze the causation elements as to each

Defendant.

To determine whether a plaintiff engaged in speech protected by the First Amendment,

the Court engages in a two-step inquiry established in Garcetti v. Ceballos, 547 U.S. 410, 418

(2006). First, the Court determines whether the plaintiff made her comments “speaking as [a]

citizen[] about matters of public concern.” Garcetti, 547 U.S. at 419. If the first step is satisfied,

the Court balances the plaintiff’s right to speak against the interest of the government in

promoting efficiency by prohibiting her speech. See Hafley v. Lohman, 90 F.3d 264, 267 (8th

Cir. 1996) (citing Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)).

In relation to the first step of Garcetti, the Eighth Circuit has counseled that “[a] public

employee’s speech is not protected by the First Amendment if it ‘owes its existence’ to [the

employee’s] professional responsibilities,” McGee v. Pub. Water Supply Dist. No. 2, 471 F.3d

918, 921 (8th Cir. 2006) (quoting Garcetti, 547 U.S. at 411), because “a public employee does

not speak as a citizen if [she] speaks pursuant to [her] job duties.” Lindsey, 491 F.3d at 898;

accord Davenport., 553 F.3d at 1113. Further, “[a] public employee’s speech is pursuant to his

employment duties ‘if it is part-and-parcel’ of the employee’s concerns about his ability to

‘properly execute his duties.’” Groenewold v. Kelley, 888 F.3d 365, 371 (8th Cir. 2018) (citation

omitted). The proper judicial inquiry is a “practical one,” not controlled or limited by “[f]ormal

job descriptions.” Garcetti, 547 U.S. at 424.

Plaintiffs’ allegedly protected speech is public criticism of the “management, operations,

and conditions of the ACC shelter facility.” Doc. [13] at 1. Although such speech is related to

Plaintiffs’ work for the County, it was not pursuant to their job duties, which did not include

reporting wrongdoing at the shelter. See Davenport, 553 F.3d at 1113 (finding an employee’s

complaint about a supervisor’s misuse of resources to be protected speech where his “duties did

not include reporting either wrongdoing by a superior officer or lack of resources”). Plaintiffs

were speaking not in their capacities as ACC volunteers but as private citizens on a matter of

public concern. Their speech is therefore entitled to First Amendment protection.

Because Plaintiffs have adequately pleaded that they made their comments about the

alleged Shelter mismanagement as private citizens speaking on a matter of public concern, the

Court would normally proceed by balancing Plaintiffs’ alleged interest in speaking out against

the government’s interest in promoting efficiency. See Hafley, 90 F.3d at 267 (citing Pickering,

391 U.S. at 568). But Defendants make no argument that prohibiting Plaintiffs’ speech would

have promoted governmental efficiency, so the Court has nothing against which to balance

Plaintiffs’ interests. Under the circumstances, the Court finds that Plaintiffs have pleaded

sufficient interest in speaking out to satisfy Pickering. See Hafley, 90 F.3d at 267 (“The

Pickering balance understandably favors the plaintiff when the test is based solely on the

allegations in the complaint.”); cf. Lindsey, 491 F.3d at 900-01 (finding that the Pickering

balancing test is not triggered where there is no evidence that the speech at issue caused

disruption).

Plaintiffs also easily satisfy the second element in establishing a prima facie case of First

Amendment retaliation. Defendants did terminate them, which is an adverse employment action.

See e.g., Morris v. City of Chillicothe, 512 F.3d 1013, 1019 (8th Cir. 2008). Thus, Plaintiffs

Agnew and Cashel have pleaded sufficient facts to show 1) they engaged in protected speech,

and 2) Defendants Schmidt and Baskin took an adverse employment action against each of them.

To survive the Motion to Dismiss, then, Plaintiffs have only to show that they have sufficiently

pleaded that their “protected speech was a substantial or motivating factor” in each Defendant’s

decision to terminate them. Davenport, 553 F.3d at 1113.

a. Retaliation claims against Defendant Schmidt

The Court first addresses the causation allegations against Defendant Schmidt (Counts I

and VI). Once again, to satisfy this element, Plaintiffs must allege facts sufficient to establish

their speech was a “substantial or motivating factor” in their termination. Davenport, 553 F.3d at

1113. In the Complaint, Plaintiffs allege that their termination was “motivated at least in part by

Plaintiff [Agnew’s and Cashel’s] exercise of [their] rights to freedom of speech.” Doc. [1] ¶¶ 85,

131. Defendants contend that Plaintiffs did not establish the causation element of a retaliation

claim because Plaintiffs failed to show they would not have been terminated “but for” their

speech. Doc. [8] ¶ 4.

Defendants incorrectly state Plaintiffs’ burden at this stage in the litigation. First

Amendment claims are analyzed under a three-part burden shifting test. See Mt. Healthy City

School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). Initially, each Plaintiff must show

that her protected activity was a “substantial factor” or “motivating factor” in the Defendant’s

adverse employment action. Id. If that initial standard is met, the burden shifts to the employer

to “show a legitimate, nondiscriminatory reason for his or her actions.” Morris, 512 F.3d at

1019. If the employer meets that burden, only then does the burden shift back to the Plaintiff to

show that the employer’s actions were a “pretext for illegal retaliation.” Id. By insisting that

Plaintiffs plead facts showing that their speech was a “but for” cause of their termination,

Defendants attempt to put Plaintiffs to a heightened burden of proof prematurely. Initially, they

are required only to plead sufficient facts to support the allegation that it was “a substantial or

motivating factor.” Davenport, 553 F.3d at 1113.

Plaintiffs list several instances of their public speech, including at public meetings of the

County’s Council, public meetings of the Animal Advisory Board, oral and written

communications to elected County officials, oral and written communication to Shelter

management—including Defendants Schmidt and Baskin—and to members of the media, and on

social media. Doc. [1] ¶¶ 27, 46-48. Media sources published highly critical reports about the

Shelter based on statements from volunteers made during those public meetings. Id. ¶ 31. In

response, Defendant Schmidt “was forced to publicly respond both to the press and before

Defendant St. Louis County’s Council.” Id. ¶ 33.

Defendants contend that Plaintiffs failed to plead that Defendants “knew Plaintiffs

criticized the ACC shelter on social media.” Doc. [19] at 2. Defendants are mistaken. Plaintiffs

allege that Defendants “were aware of . . . posts critical of the Shelter” made by Plaintiffs, and

that Defendants were “surreptitiously monitoring” Plaintiffs’ social media pages. Id. ¶¶ 54-55.

Plaintiffs also claim that “Defendant Schmidt stated that she and other employees of Defendant

St. Louis County ‘had eyes on’ the volunteers’ social media pages and posts.” Id. ¶ 56. That

comment allegedly occurred right after Plaintiff Agnew’s October 25, 2019, social media post

regarding her suspension. While temporal proximity is not sufficient to prove retaliation, it can

be evidence of retaliation. Skalsky v. Indep. Sch. Dist. No. 743, 772 F.3d 1126, 1131 (8th Cir.

2014) (“Temporal proximity between protected activity and an adverse employment action can

constitute evidence the protected activity was a substantial or motivating factor.”). Therefore,

Plaintiffs have pleaded sufficient factual evidence that Defendants were aware of their comments

on social media.

Even if they had not, however, their retaliation claims would not fail. Plaintiff lists many

other instances of public speech, Doc. [1] ¶ 27, including media reports to which Defendant

Schmidt responded directly. Id. ¶ 33. Those facts are sufficient to support Plaintiffs’ allegation

that speech was a substantial or motivating factor in the termination of the ACC volunteers, even

without considering the social media speech.

Plaintiffs have pleaded sufficient facts to support all three elements of a retaliation claim

against Defendant Schmidt for purposes of a Rule 12(b)(6) challenge. Therefore, Plaintiffs’

Counts I and VI will survive Defendants’ Motion to Dismiss.

b. Retaliation claims against Defendant Baskin

Plaintiffs have also satisfied the causation prong of the retaliation standard as to

Defendant Baskin for the purposes of Counts III and VIII. As discussed above, to show

causation, Plaintiffs need to establish only that their speech was a “substantial or motivating

factor” in their termination. Davenport, 553 F.3d at 1113.

Plaintiffs both allege that their termination was “motivated at least in part by [their]

exercise of [their] rights to freedom of speech.” Doc. [1] ¶¶ 104, 141. In support of that claim,

they allege that they spoke to Defendant Baskin directly about their concerns with the Shelter’s

management and conditions, in addition to their many public statements to other people and

entities. Id. ¶ 27. They further allege that, on or about October 16, 2019, seven days after the

Riverfront Times article criticizing the Shelter, Defendant Baskin met with the volunteers and

said the County “was not required to have volunteers at all.” Id. ¶ 40. Plaintiffs pleaded that the

statement was a direct threat to the volunteers and the program. Id. ¶¶ 40-41. Assuming the

facts as alleged to be true and giving all reasonable inferences to Plaintiffs, the Court finds that

Plaintiffs have adequately alleged causation for the purposes of their retaliation claim against

Defendant Baskin. As stated above, temporal proximity is not enough to establish causation, but

it is evidence of such. Skalsky, 772 F.3d at 1131. Defendant Baskin’s statement, in addition to

the fact that she was aware of critical media reports that the media credited to volunteers, provide

sufficient evidence of causation to survive a motion to dismiss.

Plaintiffs have sufficiently alleged all three elements of a retaliation claim against

Defendant Baskin; therefore, Counts III and VIII will not be dismissed.

ii. Plaintiffs’ Freedom of Association Retaliation Claims

Plaintiffs bring four counts of First Amendment retaliation for the exercise of freedom of

association, including: Count II, Plaintiff Agnew against Defendant Schmidt; Count IV, Plaintiff

Agnew against Defendant Baskin; Count VII, Plaintiff Cashel against Defendant Schmidt; and

Count IX, Plaintiff Cashel against Defendant Baskin. In those counts, Plaintiffs allege that

Defendants retaliated against them for exercising freedom of association, in violation of 42

U.S.C. § 1983, by terminating them for associating with groups that were critical of the Shelter.

Plaintiffs make these claims against Schmidt and Baskin in their individual capacities.

The Eighth Circuit has held that the First Amendment restrains the government from

retaliating against a public employee based on an exercise of free speech or association. Davison

v. City of Minneapolis, Minn., 490 F.3d 648 (8th Cir. 2007). An association retaliation claim has

the same elements as a speech retaliation claim and uses the same three-part burden shifting

analysis. For each of these claims, the Plaintiff involved must again show that “(1) she engaged

in activity protected by the First Amendment; (2) the defendant took an adverse employment

action against her; and (3) the protected conduct was a substantial or motivating factor in the

defendant’s decision to take the adverse employment action.” Id. at 655. If Plaintiffs meet their

initial burden, Defendants must then demonstrate that they would have terminated Plaintiffs even

without their association. Id. (citing Mt. Healthy, 429 U.S. at 287).

In all four association retaliation counts, Plaintiffs allege the same associations, the same

adverse employment action, and the same facts supporting causation. Therefore, the Court will

address the claims together.

The Eastern District of Missouri has applied Garcetti’s holding—that a public

employee’s speech is protected only when speaking as a citizen—to a public employee claiming

retaliatory termination based on the exercise of free association. See Lloyd v. City of St. Charles,

Mo., 617 F. Supp. 2d 830, 834 (E.D. Mo. 2008). A public employee’s association is not

protected when she associates pursuant to her job duties. Here, Plaintiffs’ association with the

“certain organizations and groups” perceived to be critical of Defendants was not pursuant to

their job duties; therefore, they engaged in those associations as citizens, and the association is

protected. Doc. [1] ¶¶ 92-93.

Plaintiffs also satisfy the second and third elements in establishing a prima facie case of

First Amendment retaliation. The alleged adverse employment action is again their termination.

And for causation, the same three-part burden shifting test applies that the Court applied in the

context of free speech retaliation claims. At this stage, Plaintiffs must plead facts sufficient to

show that their association was a “substantial or motivating factor” in Defendant’s decision to

terminate them. Davison, 490 F.3d at 655. In each of the four freedom of association retaliation

counts, Plaintiffs allege that the Defendants’ decisions to terminate them “were motivated at least

in part by Plaintiff [Agnew’s and Cashel’s] exercise of [their] rights to freedom of association.”

Id. ¶¶ 95, 114, 141, 160. They also allege that Defendants were aware of Plaintiffs’

memberships in social media groups critical of the Shelter because Defendants were “monitoring

the social media postings and pages of the volunteers, both personal and group pages.” Doc. [1]

¶ 55. Defendant Schmidt’s statement that she “had eyes on” volunteer social media pages lends

further support to Plaintiffs’ claims.

Defendants contend that this is “not adequate to satisfy the rigorous pleading standard”

and that there are “more plausible explanations for the actions of Defendants.” Doc. [19] at 3.

The Court need not decide if there are more plausible explanations. To survive a motion to

dismiss, Plaintiffs only need to allege facts supporting each element of their claims. Twombly,

550 U.S. at 555. Because Plaintiffs have done so, their freedom of association retaliation claims,

Counts II, IV, VII, and IX, will survive the Motion to Dismiss.

iii. Unlawful Policy, Practice, or Custom Claims

In Counts V and X, each Plaintiff alleges that Defendants Sam Page and the County

violated § 1983 by adopting an unlawful policy, practice, or custom of terminating volunteers for

engaging in constitutionally protected speech and association. See Doc. [1] ¶¶ 120, 166.

Plaintiffs bring their § 1983 claims against Page in his official capacity only, rendering them

redundant of Plaintiffs’ claims against the County. See Veatch v. Bartels Lutheran Home, 627

F.3d 1254, 1257 (8th Cir. 2010) (“A suit against a government officer in his official capacity is

functionally equivalent to a suit against the employing governmental entity.”). Therefore,

Plaintiffs’ § 1983 claims against Page will be dismissed.

A municipality is not liable under § 1983 for the negligent acts of its employees or

officials. Russell v. Hennepin County, 420 F.3d 841, 846 (8th Cir. 2005) (citing Daniels v.

Williams, 474 U.S. 327, 330-31 (1986)). Liability will not attach to a municipality solely

because it employs an alleged tortfeasor. Monell v. Dep’t of Social Servs. of City of N.Y., 436

U.S. 658, 690-94 (1978). For a governmental entity to be liable under § 1983, the constitutional

deprivation must have been “committed pursuant to an official custom, policy, or practice,” or

the violation must be “so pervasive among non policymaking employees [sic] . . . ‘as to

constitute a custom or usage with the force of law.’” Granda v. City of St. Louis, 472 F.3d 565,

568 (8th Cir. 2007) (citation omitted).

Plaintiffs do not specify a legal theory for their municipal liability claim. Their

Complaint contends that the County has “adopt[ed] and/or maintain[ed] an unlawful policy,

pattern, or custom which resulted in the infringements of [Plaintiffs’] First Amendment rights.”

Doc. [1] ¶¶ 124, 170. And, in their opposition to the Motion to Dismiss, they identify two

allegedly “unconstitutional policies and/or practices”: 1) “the termination of the volunteers,” and

2) “conditioning of any return to volunteer service upon the signing of unlawful non-disclosure

agreements.” Doc. [13] at 14-15; see also Doc. [1] ¶¶ 120(a), 166(a). Their allegations invoke

the standards for municipal liability based on both an unconstitutional custom and an

unconstitutional policy. See Doc. [1] ¶¶ 5, 120, 121, 166, 167. Therefore, the Court will address

both possible bases for municipal liability.

The Eighth Circuit carefully differentiates between municipal liability claims based on an

unofficial “custom” and those based on an official “policy.” See Ware v. Jackson County, Mo.,

150 F.3d 873, 880 (8th Cir. 1998). To establish a claim for municipal liability based on a

custom, a plaintiff must plead:

1) The existence of a continuing, widespread, persistent pattern of

unconstitutional misconduct by the governmental entity’s employees;

2) Deliberate indifference to or tacit authorization of such conduct by the

governmental entity’s policymaking officials after notice to the officials of

that misconduct; and

3) That plaintiff was injured by acts pursuant to the governmental entity’s

custom, i.e., that the custom was a moving force behind the constitutional

violation.

Johnson v. Douglas Cnty. Med. Dep’t, 725 F.3d 825, 828 (8th Cir. 2013) (citation omitted).

Plaintiffs fail to state a claim for custom liability because they do not allege a

“continuing, widespread, persistent pattern of unconstitutional misconduct.” See Johnson, 725

F.3d at 828. The only governmental action the Complaint identifies as the basis for Plaintiffs’

municipal liability claims is “an official policy to terminate the entirety of the Shelter

volunteers . . . and subject any terminated volunteer to an application and interview process

designed to eliminate those who . . . had engaged in acts of protected speech that were critical of

Defendants . . . .” Doc. [1] ¶¶ 120(a), 166(a). Notwithstanding their claims that the reboot of the

ACC volunteer program was “undertaken pursuant to a policy, practice and custom,” they allege

no other instances of similar misconduct by any governmental authority. Devoid of such

allegations, the Complaint fails to state a claim for municipal liability based on an

unconstitutional custom. See McGautha v. Jackson Cty., Mo., Collections Dep’t, 36 F.3d 53, 56-

57 (8th Cir. 1994) (“Liability for an unconstitutional custom or usage . . . cannot arise from a

single act.”); see also Ball-Bey v. Chandler, No. 4:18-CV-01364-SPM, 2020 WL 6708516, at

*8-*10 (E.D. Mo. Nov. 16, 2020) (discussing the quality and quantity of allegations that past

courts have found to sufficiently plead a widespread, persistent custom of unconstitutional

misconduct).5

Unlike an unconstitutional “custom,” an unconstitutional “policy” may be inferred from a

single act. “A ‘policy’ is a ‘deliberate choice to follow a course of action . . . made from among

various alternatives by the official or officials responsible under state law for establishing final

policy with respect to the subject matter in question.’” Russell, 420 F.3d at 847 (quoting Hayes

v. Faulkner Cnty., 388 F.3d 669, 674 (8th Cir. 2004)). Although “[p]roof of a single incident of

unconstitutional activity is not sufficient to impose liability under Monell, an unconstitutional

government policy could be inferred from a single decision taken by the highest officials

responsible for setting policy in that area of the government’s business.” Davison, 490 F.3d at

659 (internal quotation marks and citations omitted); see also Pembaur v. City of Cincinnati, 475

U.S. 469, 481 (1986) (“[W]here action is directed by those who establish governmental policy,

the municipality is equally responsible whether that action is to be taken only once or to be taken

repeatedly.”); Angarita v. St. Louis Cnty., 981 F.2d 1537, 1547 (8th Cir. 1992) (“As a final

policymaker for the department, any action taken by [Defendant] constitutes the policy of St.

Louis County in these circumstances.”).

Lacking evidence of a continuing, widespread pattern of misconduct, then, Plaintiffs

might still make out a municipal liability claim based on an unconstitutional policy if they were

5 See also, e.g., Meier v. City of St. Louis, Mo., 934 F.3d 824, 828 (8th Cir. 2019) (finding that a jury

could find a “continuing, widespread, persistent practice” based on testimony from multiple sources that a

practice occurred “regularly” and was taught by the department’s training officer); Watson v. Boyd, 447 F.

Supp. 3d 924, 950 (E.D. Mo. 2020) (holding that seven complaints from citizens and three complaints

from employees regarding an official’s misconduct were sufficient evidence of a custom to defeat

summary judgment).

to allege a single unconstitutional decision “taken by the highest officials responsible for setting

policy.” Davison, 490 F.3d at 659. But Plaintiffs make no such allegation. They allege that

Defendant Page is the “final policymaking authority over the matters,” Doc. [1] ¶ 5; see also

Doc. [13] at 15, but that it was Defendants Schmidt and Baskin who terminated them, Doc. [1]

¶¶ 118, 164. According to the Complaint, Schmidt and Baskin have “managerial responsibility

and decision-making authority for [their] department.” Doc. [1] ¶¶ 15-16. Plaintiffs do not

allege that they have final policymaking authority. And as to those who do, they allege only

speculatively that “the policymaker(s) of Defendant St Louis County, including Defendant Page,

knew and/or should have known of [the policy].” Doc. [1] ¶ 120 (emphasis added). They do not

allege that Defendant Page—with his “final policymaking authority,” Doc. [1] ¶ 5— made the

decision or even participated in the decision-making in any way. Therefore, Plaintiffs fail to

state a claim for municipal liability based on an unconstitutional policy.

In their opposition to the Motion to Dismiss, Plaintiffs also argue that the “conditioning

of any return to volunteer service upon the signing of unlawful non-disclosure agreements” is an

unconstitutional policy, Doc. [13] at 15, but their Complaint provides nothing more than

conclusory allegations and speculation on that point. See Doc. [1] ¶¶ 75-78; Twombly, 550 U.S.

at 555 (“Factual allegations must be enough to raise a right to relief above the speculative

level.”). They allege, for example, “[o]n information and belief,” that the new agreement will

require volunteers to “surrender” their cell phones before entering non-public areas, and that the

County does not require employees in other departments to sign “such restrictive” agreements.

But they allege no facts to support any of the few allegations they make about the agreements,

nor do they even mention the agreements in the context of their municipal liability claims.

Therefore, the Court finds that Plaintiffs have not stated a claim for municipal liability under

§ 1983 based on any custom, policy, or practice of requiring new volunteers to sign non-

disclosure agreements.

Because Plaintiffs fail to plead any factual basis for municipal liability under § 1983,

Counts V and X against St. Louis County will be dismissed.

II. Motion for Summary Judgment

In Plaintiffs’ Response to Defendants’ Statement of Uncontroverted Material Facts,

Plaintiffs petition the Court for Rule 56(d) relief because they have not been provided the

opportunity to conduct depositions and other discovery. Doc. [14] at 1. As outlined above, First

Amendment retaliation claims are analyzed under a three-part burden shifting test. Morris, 512

F.3d at 1019. Once Plaintiffs have shown that their exercise of First Amendment rights was a

motivating factor in their termination, the burden shifts to Defendants to show a “legitimate,

nondiscriminatory reason” for the termination. /d. If satisfied, the burden shifts back to

Plaintiffs to prove that Defendants’ reason was a “pretext for illegal retaliation.” Jd. Regardless

of whether Defendants have met their burden, Plaintiffs have not had an opportunity to prove

that Defendants’ putative reason for the termination was merely pretextual, because they have

not had the chance to depose Defendants or other potential witnesses. Defendants’ Motion for

Summary Judgment will therefore be denied.

CONCLUSION

For the foregoing reasons,

IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss or Alternative Motion

for Summary Judgment (Doc. [8]), is GRANTED IN PART and DENIED IN PART.

IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss Counts V and X

against Defendants Sam Page and St. Louis County is GRANTED, and Counts V and X are

DISMISSED.

IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss is DENIED as to

Counts I, I, I, IV, VI, VU, VII, and IX.

IT IS FINALLY ORDERED that Defendants’ Motion in the alternative for Summary

Judgment is DENIED without prejudice.

An appropriate Order of Partial Dismissal will accompany this Memorandum and Order.

Dated this 30th day of November, 2020.

dhok C

SARAHE.PITLYK ——————™

UNITED STATES DISTRICT JUDGE

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