McGee v. Walters

UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

CHERYL MCGEE, )

)

Plaintiff, )

)

v. ) Case No. CIV-23-475-G

)

RYAN WALTERS et al., )

)

Defendants. )

ORDER

Plaintiff Cheryl McGee herein brings claims for wrongful and retaliatory

termination in violation of the First Amendment, pursuant to 42 U.S.C. § 1983, against

Defendant Ryan Walters and Defendant Matt Langston, in both their official and individual

capacities. See Compl. (Doc. No. 1).

Defendants have jointly filed a Motion to Dismiss the official-capacity claims (Doc.

No. 7) pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.

Plaintiff has responded (Doc. No. 12), and Defendants have replied (Doc. No. 19).

Defendants also have jointly filed a Rule 12(b)(6) Motion to Dismiss the individual-

capacity claims (Doc. No. 9). Plaintiff has filed a Response (Doc. No. 13), and Defendants

have filed a Reply (Doc. No. 18). Accordingly, both motions are at issue.

I. Summary of the Pleadings

In the Complaint, Plaintiff alleges the following facts:

Plaintiff was employed by the Oklahoma State Department of Education (“OSDE”)

as Executive Director of School Based Mental Health from August of 2019 until she was

terminated on May 25, 2023. Compl. ¶ 5 (Doc. No. 1). Defendant Walters is

Superintendent of Public Instruction for the State of Oklahoma. Id. ¶ 2(A). Defendant

Langston is the Chief Policy Advisor of Administrative Services for OSDE. Id. ¶ 2(B).

On May 25, 2023, Defendant Walters caused an email to be sent threatening all

OSDE employees with termination if any employee “leaked” internal documents to the

press. Id. ¶ 8. The email closed by stating: “To recap, any employee found leaking

information to the press will face immediate termination.” Id. The email was prepared

and signed by Defendant Langston. Id. Defendant Langston publicly stated that he

prepared this email (the “Keep Quiet Email”) in a format that would allow him to trap

employees who shared the email to the press or to other third parties. Id. ¶ 9.

According to Plaintiff, there were two purposes for the Keep Quiet Email. See id.

¶ 10. The first was to intimidate and chill the First Amendment rights of employees. Id.

¶¶ 10, 19 (describing the email as “a direct threat”). The second was to retaliate against

employees who shared information about matters of public concern in the OSDE with

members of the press or outside officials. Id. ¶ 10.

On May 25, 2023, Defendant Walters terminated Plaintiff’s employment for the

reason that Plaintiff had supposedly shared confidential information (the Keep Quiet

Email) with the press. Id. ¶ 11. The letter terminating Plaintiff’s employment read:

We regret to inform you that your employment with the Oklahoma State

Department of Education (OSDE) is being terminated immediately. This

decision[] has been made due to a breach of confidentiality by leaking

internal agency emails to the media.

Our media[] policy clearly outlines employees should not engage with the

media directly but instead redirect inquiries to the designated press secretary.

Despite these clear guidelines and a prior email communication explicitly

stating the leaking agency emails would result in termination, we have

confirmed that you have violated these policies by disclosing internal agency

emails to the press without authorization.

Id.

Defendant Walters is the sole decisionmaker regarding the hiring and firing of

OSDE employees. Id. ¶¶ 6, 18. Defendant Langston also “directly and personally

participated in” Plaintiff’s termination by “devising and setting up an email trap to find

employees who disseminated information to persons outside [OSDE]” and “by personally

threatening the termination of any employee who violated this policy.” Id. ¶ 18.

II. Discussion

A. Plaintiff’s Claims Against Defendants in Their Official Capacities

In Count One, Plaintiff seeks prospective declaratory and equitable relief against

both Defendants in their official capacities. See id. ¶¶ 19-22. Specifically, Plaintiff

requests that the Court declare the Keep Quiet Email “an unlawful and overly broad

restraint on the First Amendment rights” of OSDE employees and “prospectively enjoin .

. . Defendants from future enforcement of the policies described therein.” Id. at 4-5.1

Defendants seek dismissal of Count One for lack of subject-matter jurisdiction,

arguing in relevant part that Plaintiff lacks Article III standing to pursue these claims. See

Defs.’ O-C Mot. (Doc. No. 7) at 1-2; Defs.’ O-C Reply (Doc. No. 19) at 2-5. In response,

Plaintiff concedes that her request for injunctive relief cannot be sustained but maintains

1 Under Ex parte Young, “a plaintiff may bring suit against individual state officers acting

in their official capacities if the complaint alleges an ongoing violation of federal law and

the plaintiff seeks prospective relief.” Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159,

1166 (10th Cir. 2012).

that the claim for declaratory relief is properly before the Court. See Pl.’s O-C Resp. (Doc.

No. 12) at 6-11, 6 n.1.

1. Relevant Standard

A motion to dismiss for lack of subject-matter jurisdiction pursuant to Rule 12(b)(1)

of the Federal Rules of Civil Procedure takes one of two forms: a facial attack or a factual

attack. Pueblo of Jemez v. United States, 790 F.3d 1143, 1148 n.4 (10th Cir. 2015). Here,

Defendants make a facial attack on the sufficiency of the allegations contained in the

Complaint. See Defs.’ O-C Mot. at 1-2. In reviewing a facial attack, a district court

confines its analysis to the pleadings and must accept the allegations in the complaint as

true. See Pueblo of Jemez, 790 F.3d at 1148 n.4. As the party asserting federal jurisdiction,

Plaintiff bears “the burden of alleging the facts essential to show jurisdiction.” U.S. ex rel.

Stone v. Rockwell Int’l Corp., 282 F.3d 787, 797 (10th Cir. 2002) (internal quotation marks

omitted).

2. Analysis

“Article III of the United States Constitution only extends federal judicial power to

cases or controversies.” United States v. Meyers, 200 F.3d 715, 718 (10th Cir. 2000).

“Article III standing is a jurisdictional requirement for a plaintiff to plead and prove, and a

lack of standing may be challenged by a motion under Rule 12(b)(1).” Altstatt v. Bd. of

Cnty. Comm’rs for Okla. Cnty., No. CIV-22-811-D, 2023 WL 6208550, at *2 (W.D. Okla.

Sept. 22, 2023). To have standing to sue, a plaintiff must properly allege: (1) it “ha[s]

suffered an injury in fact—an invasion of a legally protected interest”—“that is (a) concrete

and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury

is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed

to merely speculative, that the injury will be redressed by a favorable decision.” Lujan v.

Defs. of Wildlife, 504 U.S. 555, 560 (1992) (internal quotation marks omitted); New

England Health Care Emps. Pension Fund v. Woodruff, 512 F.3d 1283, 1288 (10th Cir.

2008).

Defendants assert that Plaintiff’s claim for prospective declaratory relief fails to

establish injury or redressability for standing purposes because the request is directed at

remedying harms faced by current OSDE employees, and Plaintiff is not such an employee.

The Court agrees.

Plaintiff alleges in relevant part that the Keep Quiet Email “would chill employees

from the exercise of their First Amendment rights” and “threaten[] the employment of

persons with [OSDE].” Compl. ¶¶ 20-21. Plaintiff, however, is no longer an OSDE

employee and thus is not so threatened or chilled. It follows that Plaintiff has not

sufficiently alleged an injury to herself that is likely to be redressed by the requested

declaratory relief—i.e., a declaration that the Keep Quiet Email is unlawful as to OSDE

“employees.” Compl. at 4-5; see Simon v. E. Ky. Welfare Rts. Org., 426 U.S. 26, 38 (1976)

(“[W]hen a plaintiff’s standing is brought into issue the relevant inquiry is whether . . . the

plaintiff has shown an injury to himself that is likely to be redressed by a favorable

decision.” (emphasis added)); cf. V-1 Oil Co. v. Utah State Dep’t of Pub. Safety, 131 F.3d

1415, 1422 (10th Cir. 1997) (“[T]he Eleventh Amendment does not permit judgments

against state officers declaring they violated federal law in the past.” (internal quotation

marks omitted)).

Plaintiff objects that Defendants ignore the potential injury caused by Defendants’

“gag order” to “Plaintiff’s on-going right to receive uncensored information from [OSDE]

employees in the future” Pl.’s O-C Resp. at 12. But Count One, even if accepted as true,

does not plausibly allege a claim premised upon the violation of such a right of a member

of the public to receive information from an employee. See Compl. ¶¶ 19-22. The Court

may not “declare principles or rules of law which cannot affect the matter in issue in the

case before it.” Mills v. Green, 159 U.S. 651, 653 (1895).

Plaintiff also cites the damages claims raised in Count Two as a basis for allowing

the declaratory-judgment claim to stand. While entirely plausible that Plaintiff could seek

some type of declaratory relief in connection with her Count Two claims, Plaintiff may not

obtain relief for her termination in the form of a judgment stating that OSDE’s policy is

currently chilling the speech of other persons who remain OSDE employees. “[P]laintiffs

must demonstrate standing for each claim that they press and for each form of relief that

they seek (for example, injunctive relief and damages).” TransUnion LLC v. Ramirez, 594

U.S. 413, 431 (2021).

Plaintiff’s official-capacity claims therefore shall be dismissed for lack of subject-

matter jurisdiction pursuant Rule 12(b)(1) of the Federal Rules of Civil Procedure.

B. Plaintiff’s Claims Against Defendants in Their Individual Capacities

In Count Two, Plaintiff seeks actual and punitive damages against Defendants in

their individual capacities based upon her unlawful termination from OSDE. See Compl.

¶¶ 23-26. Plaintiff alleges that her termination, which “was the direct result of supposedly

violating Defendants’ prohibition against sharing internal communications with members

of the press,” violated Plaintiff’s rights under the First Amendment. Id. ¶ 24. Citing Rule

12(b)(6) of the Federal Rules of Civil Procedure, Defendants argue that they are entitled to

qualified immunity on Count Two. See Defs.’ I-C Mot. at 3-7.

1. Relevant Standard

In analyzing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil

Procedure, 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). “[T]o withstand a Rule

12(b)(6) motion to dismiss, a complaint must contain enough allegations of fact, taken as

true, ‘to state a claim to relief that is plausible on its face.’” Khalik v. United Air Lines,

671 F.3d 1188, 1190 (10th Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). While the Rule 12(b)(6) standard does not require that a plaintiff establish a

prima facie case in the pleading, the court discusses the essential elements of each alleged

cause of action to better “determine whether [the plaintiff] has set forth a plausible claim.”

Id. at 1192.

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).”

Twombly, 550 U.S. at 555 (footnote and citation 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).

2. Analysis

Defendants argue that they are entitled to qualified immunity on Plaintiff’s First

Amendment claims. “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).

“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 Executive

Director of School Based Mental Health. Defendants’ challenge is broadly aimed at

whether Plaintiff can show that, in terminating Plaintiff, 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).

The First Amendment “forbids abridgment of the freedom of speech.” Janus v. Am.

Fed’n of State, Cnty., & Mun. Emps., 585 U.S. 878, 891-92 (2018). 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 Cnty., 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).

a. Whether Plaintiff Adequately Alleged Protected Speech

Defendants first assert that Plaintiff has not sufficiently presented an instance of

speech by a public employee, so as to implicate the Garcetti/Pickering analysis, because

the Complaint alleges that Plaintiff was terminated based upon Defendants’ belief that

Plaintiff shared the Keep Quiet Email, rather than affirmatively pleading that Plaintiff

engaged in protected speech by disseminating the email. See Defs.’ I-C Mot. at 5-6.

The Tenth Circuit “recognize[s] a First Amendment right against retaliation for

perceived speech.” Avant v. Doke, No. 21-7031, 2022 WL 2255699, at *6 (10th Cir. June

23, 2022). As explained by the Tenth Circuit, what matters is not whether the employer

“‘ma[de] a factual mistake’” in believing that the public employee engaged in

constitutionally protected activity, but only whether the employer held such a belief when

demoting or terminating the employee. Bird v. W. Valley City, 832 F.3d 1188, 1212 (10th

Cir. 2016) (emphasis omitted) (quoting Heffernan v. City of Paterson, 578 U.S. 266, 273

(2016)).

Here, Plaintiff has adequately alleged that Defendants’ motive for termination was

“a desire to prevent [Plaintiff] from engaging in” allegedly protected speech. Heffernan,

578 U.S. at 273. Dismissal is not warranted on this basis.

b. Whether the Speech Was on a Matter of Public Concern

Defendants next argue that Plaintiff fails to plausibly allege that the perceived

disclosure of the Keep Quiet Email implicated “a matter of public concern,” as required to

be entitled to First Amendment protection. Eisenhour, 744 F.3d at 1227 (internal quotation

marks omitted); see Defs.’ I-C Mot. at 6-7.

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).

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. The inquiry

turns on the “content, form, and context” of the speech.

Lane v. Franks, 573 U.S. 228, 241 (2014) (quoting Connick, 461 U.S. at 147). Courts also

consider the motive of the speaker: “[w]as the speech calculated to redress personal

grievances or did it have some broader public purpose?” Eisenhour, 744 F.3d at 1228.

As noted above, Plaintiff alleges that she was terminated for purportedly forwarding

Defendants’ May 25, 2023 email, which threatened all OSDE employees with termination

if they “leaked” internal documents to the press. Compl. ¶ 8 (“To recap, any employee

found leaking information to the press will face immediate termination.”). Defendants

argue that the Keep Quiet Email was merely “provid[ing] clarification on [OSDE’s]

media[] policy” and such policies are not “of interest to the community.” Defs.’ I-C Mot.

at 7. Plaintiff, however, contends that it is “the nature of the policy” that determines

whether it is of public concern. Pl.’s I-C Resp. at 4 (asserting there was “wide-spread and

intense news interest in Defendants’ threats to fire employees who talked to the news

media”). Plaintiff additionally alleges that OSDE “is a public, constitutional agency of the

State of Oklahoma,” “charged with advancing education of students in the State of

Oklahoma.” Id. ¶ 13.

At this early pleading stage, the Court is unable to, and need not, definitively

identify the “content, form, and context” of the Keep Quiet Email or ascertain Plaintiff’s

motive for transmission (if so transmitted). Connick, 461 U.S. at 147; see Eisenhour, 744

F.3d at 1228. Construed in Plaintiff’s favor, the Complaint’s allegations plausibly reflect

that Plaintiff’s perceived distribution of the email constituted speech relating to a concern

to the community and/or “a subject of legitimate news interest,” involving more than a

personal grievance or “a routine intraoffice communication.” Lane, 573 U.S. at 241

(internal quotation marks omitted); Defs.’ I-C Reply at 5; see also Iqbal, 556 U.S. at 679

(“Determining whether a complaint states a plausible claim for relief will . . . be a context-

specific task that requires the reviewing court to draw on its judicial experience and

common sense.”). Plaintiff therefore has adequately pleaded that her protected speech

involved a matter of public concern for purposes of the Garcetti/Pickering analysis.

c. Conclusion

Defendants’ assertion of qualified immunity rests upon their contentions of

inadequate pleading addressed above. But as set forth herein, “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 authorities cited above it is clear that

this First Amendment right was clearly established at the time of Plaintiff’s termination in

May 2023. See supra; Avant, 2022 WL 2255699, at *6-7 (holding that Heffernan and Bird

clearly establish a First Amendment right against retaliation for perceived speech).

Dismissal of these claims is not warranted on this basis.2

CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss (Doc. No. 7) is

GRANTED. The claims raised against Defendants in their official capacities by Count

One of the Complaint are DISMISSED without prejudice pursuant to Federal Rule of Civil

Procedure 12(b)(1).

IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss (Doc. No. 9) is

DENIED. Plaintiff’s 42 U.S.C. § 1983 claims raised against Defendants in their individual

capacities for violation of the First Amendment remain pending.

2 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

longer rest on the pleadings.” Thomas, 765 F.3d at 1194 (internal quotation marks

omitted).

IT IS SO ORDERED this 12th day of August, 2024.

CHARLES B. GOODWIN

United States District Judge

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