# Tempel v. School District of Waukesha

> District Court, E.D. Wisconsin · December 20, 2023

URL: https://www.frixlaw.com/law-library/cases/10719365

## Case

- **Court:** District Court, E.D. Wisconsin
- **Decided:** December 20, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

MELISSA TEMPEL,

Plaintiff,

v. Case No. 23-CV-1169

SCHOOL DISTRICT OF WAUKESHA and
JAMES SEBERT,

Defendants.

DECISION AND ORDER ON DEFENDANTS’ MOTION TO DISMISS

Melissa Tempel, a former first grade teacher for Heyer Elementary School in
Waukesha, Wisconsin, sues the School District of Waukesha (the “District”) and
Superintendent of Schools Dr. James Sebert (collectively “Defendants”) for allegedly
terminating her employment in retaliation for exercising her First Amendment rights, in
violation of 42 U.S.C. § 1983. Defendants move to dismiss Tempel’s complaint on the
grounds that it fails to state a claim upon which relief can be granted pursuant to Fed. R.
Civ. P. 12(b)(6). For the reasons that follow, Defendants’ motion to dismiss is denied.
BACKGROUND
Tempel began her employment with the District in 2018 and was employed as a first
grade dual-language educator at Heyer Elementary School. (Compl. ¶ 7, Docket # 1.) The
District has a Board Policy entitled “Controversial Issues in the Classroom” (“Board Policy
2240”), which states, in relevant part:
The Board believes that the consideration of controversial issues has a
legitimate place in the instructional program of the District.
Properly introduced and conducted, the consideration of such issues can help
students learn to identify important issues, explore fully and fairly all sides of
an issue, weigh carefully the values and factors involved, and develop
techniques for formulating and evaluating positions.

For purposes of this policy, a controversial issue is a topic

A. on which opposing points of view have been promulgated by
responsible opinion.
B. Which may be the subject of intense public argument,
disagreement or disapproval
C. Which may have political, social or personal impacts on
students and/or the community, and
D. Which is likely to arouse both support and opposition in the
community.

The Board will permit the introduction of controversial issues when use in the
instructional program:

A. is related to the instructional goals of the course of study
B. is appropriate for the age and maturity level of the students
engaged in the discussion.
C. does not tend to indoctrinate or persuade students to a
particular point of view;
D. encourages open-mindedness and is conducted in a spirit of
scholarly inquiry;
E. does not cause a substantial disruption in the school
environment.
F. does not create a hostile school environment.

(Id. ¶ 9.) In August 2021, Dr. Sebert announced that Board Policy 2240 would apply to ban
Black Lives Matter, Blue Lives Matter, Thin Blue Line, anti-racist, and other materials. (Id.
¶ 10.) Teachers were asked to remove all such materials from their classrooms. (Id.) The
District’s implementation of this policy garnered press attention and was the subject of
discussion at the September 15, 2021 Board meeting. (Id. ¶ 11.) Over the 2021-2022 school
year, Board Policy 2240 was applied by the District to ban LGBTQ+ Pride flags, safe space
signs, and displays of the District’s Nondiscrimination and Access to Equal Educational
Opportunity Policy (“Board Policy 2260”). (Id. ¶ 12.) The policy was also applied to signs
that stated, “This classroom is anti-racist” and “This school welcomes you.” (Id.)
Since Board Policy 2240 was implemented, the District was featured in the press no
less than 20 times in 2021 and 2022. (Id. ¶ 15.) On September 30, 2021, a Change.org

petition was started calling on the District to rescind signage bans and discriminatory
restrictions and follow policies and procedures that demonstrate a commitment to equity;
4,590 signatures have been added to this petition as of the date this complaint was filed. (Id.
¶ 16.) On October 14, 2021, the press reported on attendance at the October Board meeting,
including comments by 35 parents, relating to the District’s decision to apply Board Policy
2240 to remove signs supporting LGBTQ+ students. (Id. ¶ 17.) On October 27, 2021, 30
parents, students, teachers, and community members gathered to protest and deliver a letter
to Dr. Sebert objecting to the application of Board Policy 2240 to remove pro-LGBTQ+
signs. (Id. ¶ 18.) The letter was signed by the Alliance for Education in Waukesha

(“Alliance”), a parent/community group, along with 200 students, parents, teachers,
professional staff, and community members. (Id.) The press also covered this October 27,
2021 gathering and documented concerns of increased bullying and harassment directed
toward LGBTQ+ students within the District. (Id. ¶ 19.)
In November 2021, the press continued its coverage of the District’s removal of safe
space signs and LGBTQ+ Pride flags under Board Policy 2240. (Id. ¶ 21.) In December
2021, the District suspended a teacher without pay for pinning a Pride flag in her classroom
and refusing to take it down. (Id. ¶ 22.) On January 7, 2022, the Alliance sent a Notification
of Anticipated Actions & Statement of Remedial Intent to Dr. Sebert regarding the District’s

actions on equity, diversity, inclusion, and fairness and on March 25, 2022, the American
Civil Liberties Union (“ACLU”) submitted a public records request to the District regarding
its application of Board Policy 2240, to determine whether the District was violating
constitutional or other civils rights of students and teachers by creating a hostile work
environment for some groups of students. (Id. ¶¶ 23–24.) In June 2022, 54 teachers resigned

from the District. Several of those teachers testified publicly at the June 2022 Board meeting
that they were resigning because of the District’s application of Board Policy 2240;
specifically, the District’s removal of LGBTQ+ signage and the monitoring of teachers who
taught about race and diversity in their classrooms. (Id. ¶ 25.)
In early 2023, Heyer Elementary School planned to host a spring concert for
kindergarten and first graders, in which students historically sing songs for their families and
classmates. (Id. ¶ 29.) The elementary school’s music teacher traditionally selects the songs
that the students will sing at the spring concert. (Id. ¶ 30.) The music teacher selected the
song “Rainbowland” by Miley Cyrus and Dolly Parton for the 2023 spring concert. (Id.

¶ 31.) The music teacher notified Heyer Principal Mark Schneider of the teacher’s selection
of “Rainbowland” for the 2023 spring concert. (Id. ¶ 32.) On March 21, 2023, the District
advised the music teacher that the singing of “Rainbowland” by Miley Cyrus and Dolly
Parton at the 2023 Heyer spring concert was prohibited. (Id. ¶ 33.) The same day, Tempel
received an email from the music teacher advising her that the District would not allow
“Rainbowland” to be performed at the 2023 Heyer spring concert. (Id. ¶ 34.)
Tempel has a personal account on the social media platform “X,” formerly known as
Twitter, with the handle @melissatempel. (Id. ¶ 35.) On March 21, 2023 at 6:39 p.m.,
Tempel tweeted the following:
My first graders were so excited to sing Rainbowland for our spring concert
but it has been vetoed by our administration. When will it end?
@waukeshaschools @DollyParton @MileyCyrus @mileyworld @gsafewi
@CivilRights #publicschools
Where everything goes as planned
And | smile
‘Cause | know if we try, we could really make a difference
in this world
| won't give up, I'll sleep a wink
It's the only thought | think, you know where | stand
| believe we can start living in a Rainbowland A
Living in a Rainbowland Vv,
Wihere you and | go hand in hand
Oh, I'd be lying if | said this was fine ~
All the hurt and the hate going on here
Ve are rainbows, me and you > W <4
Every color, every hue
Let's shine on through
Together, we can start living in a Rainbowland
Living in a Rainbowland
The skies are blue and things are grand
Wouldn't it be nice to live in paradise
Where we're free to be exactly who we are
Let's all dig down deep inside
Brush the judgment and fear aside
Make wrong things right
And end the fight
‘Cause | promise ain't nobody gonna win (come on)
(Id. § 40.) In the days following, Tempel’s tweet gained national attention with news outlets
across the country reporting on the District’s decision to prohibit the singing of
“Rainbowland.” Ud. § 41.) On March 24, 2023, the District issued a public statement to the
media, advising that the Principal of Heyer and a central office administrator had reviewed
the song alongside Board Policy 2240. Ud. § 42.) The statement explained that the Principal
and the central office administrator determined that ‘“Rainbowland” could be deemed
controversial in accordance with Board Policy 2240. (/d.)
During spring break while school was not in session, Tempel was interviewed by
news outlets regarding the District’s “Rainbowland” decision, the application of Board
Policy 2240, and other related issues. Ud. § 44.) Between March 22, 2023, and March 31,
2023, news outlets also interviewed parents, community members, and Alliance for
Waukesha members about the District’s decision regarding “Rainbowland,” the application
of Board Policy 2240, and other related issues. (id. 4 45.) On March 31, 2023, Dr. Sebert

and Board President Kelly Piacsek issued a statement to School District of Waukesha
“Stakeholders” again advising that the Principal of Heyer and a central office administrator
reviewed “Rainbowland” relative to Board Policy 2240 and determined it would be
prohibited. (Id. ¶ 47.) The statement also announced that the matter should have been

handled differently by Tempel and that steps were being taken to address how Tempel had
chosen to address Heyer Elementary’s prohibition of “Rainbowland” during the spring 2023
concert. (Id.)
When Tempel returned to work after spring break on April 3, 2023, she was
informed that she was being placed on administrative leave effective immediately. (Id. ¶ 49.)
Tempel’s administrative leave garnered national attention. (Id. ¶ 53.) Dozens attended the
April 12, 2003 Board meeting to discuss the “Rainbowland” decision and a rally and sing-a-
long were held in support of Tempel. (Id.) Both events were covered by the press. (Id.)
Between April 3, 2023, and May 10, 2023, Human Resources investigated Tempel’s

conduct, and on May 10, the investigation concluded that Tempel violated Page 7 of the
Employee Handbook for Professional Staff Members, Board Policy 3179 (Employee
Concerns), Board Policy 3213 (Student Supervision and Welfare), and Board Policy 3310
(Employee Expressions in Non-Instructional Settings). (Id. ¶¶ 56–60.) In a letter dated May
15, 2023, Dr. Sebert informed Tempel that he would be recommending to the Board that
Tempel’s employment be terminated. (Id. ¶¶ 60–61.) Tempel requested a hearing to petition
the Board to reject Dr. Sebert’s recommendation. (Id. ¶ 62.) The Board held a hearing on
July 12, 2023, and voted unanimously to adopt Dr. Sebert’s recommendation. (Id. ¶ 64.)
Tempel’s employment was terminated effective July 12, 2023. (Id.)
Tempel sues the District and Dr. Sebert, alleging that her employment was
terminated in retaliation for exercising her First Amendment rights. (Id. ¶¶ 65–82.)
STANDARD OF REVIEW
A motion to dismiss under Fed. R. Civ. P. 12(b)(6) challenges the sufficiency of the

complaint on the basis that the plaintiff has failed to state a claim upon which relief can be
granted. A complaint must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Supreme Court has interpreted
this language to require that the plaintiff plead “enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). In Ashcroft v.
Iqbal, the Supreme Court elaborated further on the pleadings standard, explaining that a
“claim has facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged,”
though this “standard is not akin to a ‘probability requirement.’” 556 U.S. 662, 678 (2009).

The allegations in the complaint “must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555 (internal citation omitted).
When determining the sufficiency of a complaint, the court should engage in a two-
part analysis. See McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011). First, the
court must “accept the well-pleaded facts in the complaint as true” while separating out
“legal conclusions and conclusory allegations merely reciting the elements of the claim.” Id.
(citing Iqbal, 556 U.S. at 680). Next, “[a]fter excising the allegations not entitled to the
presumption [of truth], [the court must] determine whether the remaining factual allegations
‘plausibly suggest an entitlement to relief.’” Id. (citing Iqbal, 556 U.S. at 681). As explained

in Iqbal, “[d]etermining 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.” 556 U.S. at 679. All factual allegations and any reasonable inferences must
be construed in the light most favorable to the nonmoving party. Price v. Bd. of Educ. of City of
Chicago, 755 F.3d 605, 607 (7th Cir. 2014).

ANALYSIS
Tempel alleges that Defendants terminated her employment in retaliation for
exercising her First Amendment rights. Defendants argue that Tempel’s complaint fails to
plead sufficient facts to support a First Amendment retaliation claim. Defendants further
argue that Tempel’s complaint against Dr. Sebert in his individual capacity fails because Dr.
Sebert did not act under color of state law, there is no causal connection between Dr. Sebert
and the termination action, and Dr. Sebert is entitled to qualified immunity. I will address
each argument in turn.
1. First Amendment Retaliation Claim

The First Amendment, applicable to the states through the Fourteenth Amendment,
prohibits a public employer from retaliating against an employee for engaging in protected
speech. Milwaukee Deputy Sheriff’s Ass’n v. Clarke, 574 F.3d 370, 376 (7th Cir. 2009). To assert
a First Amendment retaliation claim under 42 U.S.C. § 1983, the plaintiff must allege that:
(1) she engaged in activity protected by the First Amendment; (2) she suffered a deprivation
that would likely deter First Amendment activity in the future; and (3) the First Amendment
activity was “at least a motivating factor” in the defendants’ decision to take the retaliatory
action. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). Defendants do not contend that
Tempel has insufficiently pled the second element; thus, I focus on whether Tempel’s

complaint sufficiently alleges elements one and three.
1.1 Protected Speech
Defendants argue that Tempel fails to sufficiently allege that she engaged in
protected speech. For a public employee’s speech to be protected under the First
Amendment, the employee must show that: (1) she made the speech as a private citizen, (2)

the speech addressed a matter of public concern, and (3) her interest in expressing that
speech was not outweighed by the state’s interests as an employer in “promoting effective
and efficient public service.” Swetlik v. Crawford, 738 F.3d 818, 825 (7th Cir. 2013) (internal
quotation and citation omitted). This last element is known as Pickering balancing, after
Pickering v. Board of Education, 391 U.S. 563 (1968). Id.
1.1.1 Speaking as a Private Citizen or Public Employee
Defendants argue that Tempel pleads insufficient facts demonstrating that she was
speaking as a private citizen, stating that she merely pleads conclusory legal assertions.
(Docket # 7 at 9.) Defendants argue that Tempel intentionally omitted her Twitter

username from her Complaint—“Maestra Melissa”—with “maestra” meaning “teacher” in
Spanish. (Id.) They argue that in the tweet, Tempel refers to “my first graders” and tags and
identifies the District. (Id.)
However, “the 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. 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.” Lane
v. Franks, 573 U.S. 228, 239–40 (2014). Tempel’s complaint sufficiently alleges that she was
speaking as a private citizen. She alleges that while employed by the District, she did not use

her personal Twitter account or any other social media account in the course of her official
duties as a District employee. (Compl. ¶¶ 38–39.) Tempel alleges that the tweet in question
was sent at 6:39 p.m., after school hours. (Id. ¶ 40.) Tempel alleges that interviews she gave
to news outlets regarding the “Rainbowland” decision were conducted off District premises
and during her personal, off-duty time, including during the District’s spring break from

March 27 through March 31, 2023. (Id. ¶¶ 43–45.) Defendants do not contend that Tempel
created the Twitter account at the behest of the District, nor do they assert that the District
controlled or directed Tempel’s use of the Twitter account or her interviews with the media.
Accordingly, the complaint sufficiently alleges that the speech in question was not
ordinarily within the scope of Tempel’s duties but was done during non-work hours on her
own initiative. That the speech in question concerns Tempel’s duties as a teacher does not
automatically transform it into non-citizen speech. Thus, dismissal is not appropriate on this
ground.
1.1.2 Speaking on a Matter of Public Concern

Defendants also argue that Tempel’s speech did not address a matter of public
concern. Whether a government employee’s speech addresses a matter of public concern
depends upon “the content, form, and context of [the speech] as revealed by the whole
record.” Gustafson v. Jones, 290 F.3d 895, 906–07 (7th Cir. 2002) (internal citation omitted).
Of the three factors, content is most important. Id. The “public concern” element is satisfied
if the speech can fairly be said to relate to a matter of political, social, or other concern to
the community, rather than merely a personal grievance of interest only to the employee. Id.
Defendants argue that Tempel’s alleged speech “must be considered as relating to classic
workplace issues,” i.e., that Tempel was upset that a song she wanted to be sung was
disallowed by the District. (Docket # 7 at 10.) Defendants assert that this issue was unique
to Tempel and concerned her own self-interest within her employment. (Id.)
Defendants’ position is difficult to reconcile with the actual allegations of the
complaint. Tempel alleges that the District’s application of Board Policy 2240 received

frequent attention in the press, precipitated the creation of a Change.org petition signed by
over 4,000 people, garnered increased attendance and press coverage of school board
meetings addressing the removal of pro-LGBTQ+ signs, caused the public to gather in
protest, and evoked the involvement of the ACLU, amongst other allegations. (Compl.
¶¶ 11, 15–19, 21, 24–26.) “Although . . . intense public interest . . . is not dispositive or
necessary to demonstrate public concern, where the public takes . . . an active interest in the
matter it is hard to argue that the speech was purely private.” Gustafson v. Jones, 117 F.3d
1015, 1019 (7th Cir. 1997) (internal quotation and citation omitted). The complaint
sufficiently alleges that this issue was not unique to Tempel, and the facts, as pled, do not

indicate that the situation was simply a personal gripe between employer and employee. For
these reasons, Tempel’s complaint sufficiently alleges that she engaged in activity protected
by the First Amendment.
1.1.3 Pickering Balancing Test
Defendants further argue that even if Tempel pled sufficient facts to support that she
engaged in constitutionally protected speech, she failed to plead facts sufficient to show that
her interest in speaking on the song choice outweighed the District’s interest in providing
effective and efficient education services. (Docket # 7 at 11–12.) In Pickering, the Supreme
Court explained that teachers may not constitutionally be compelled to relinquish the First
Amendment rights they would otherwise enjoy as citizens to comment on matters of public
interest in connection with the operation of the public schools in which they work. 391 U.S.
at 568. However, the Court also stated that the State, as an employer, does have an interest
in regulating the speech of its employees “that differ significantly from those it possesses in
connection with regulation of the speech of the citizenry in general.” Id. The Court

explained that the “problem in any case is to arrive at a balance between the interests of the
teacher, as a citizen, in commenting upon matters of public concern and the interest of the
State, as an employer, in promoting the efficiency of the public services it performs through
its employees.” Id. The Pickering balancing test includes such factors as: (1) whether the
speech would create problems in maintaining discipline or harmony among co-workers; (2)
whether the employment relationship is one in which personal loyalty and confidence are
necessary; (3) whether the speech impeded the employee’s ability to perform her
responsibilities; (4) the time, place and manner of the speech; (5) the context in which the
underlying dispute arose; (6) whether the matter was one on which debate was vital to

informed decisionmaking; and (7) whether the speaker should be regarded as a member of
the general public. Bonds v. Milwaukee Cnty., 207 F.3d 969, 981 (7th Cir. 2000).
Given the need to weigh these various factors, the Seventh Circuit has found that the
Pickering inquiry, “can seldom be done on the basis of the pleadings alone.” Delgado v. Jones,
282 F.3d 511, 517 (7th Cir. 2002). In fact, in Gustafson v. Jones, 117 F.3d 1015 (7th Cir.
1997), the court said that it “would be a rare case indeed where the pleadings as a whole
would permit judgment as a matter of law on this point, unless the plaintiff was relying on
speech that is wholly unprotected by the First Amendment or the defendant’s justifications
were frivolous.” Id. at 1019. Thus, the court found that, normally, “application of the
Pickering balancing test will be possible only after the parties have had an opportunity to
conduct some discovery.” Id.
Defendants argue for analysis of the Pickering factors on the basis of the pleadings
alone and to consider additional documents outside of the pleadings, namely, the

Investigation Report and Dr. Sebert’s recommendation letter to terminate Tempel’s
employment, in doing so. (Docket # 7 at 11–12.) They argue that because these documents
are central to Tempel’s claim and are partially quoted in her complaint, they may be
considered on a motion to dismiss without converting the motion to one of summary
judgment. (Id.) However, even if I were to consider the additional documents provided by
Defendants, they merely illustrate why it is improper to weigh the Pickering factors at this
juncture. For example, while the District contends that its internal investigation report
shows that Tempel’s tweet caused substantial disruption at school, this is, of course, the
District’s position. Tempel views the situation differently. Tempel alleges that the dispute

arose in the context of tremendous public disapproval of Board Policy 2240 and how it
affected LGBTQ+ students. (Compl. ¶¶ 16–28.) She alleges that the District failed to report
an incident of harassment towards an LGBTQ+ student and that students were articulating
that the District’s policies made them feel unwanted and scared. (Id. ¶¶ 20–21.) These are
the precise facts and issues that will need to be fleshed out in discovery and presented to the
Court for weighing at a later date. As such, dismissal is not appropriate at this juncture.
1.2 Motivating Factor
Defendants argue that Tempel’s complaint fails to plead sufficient facts to support
her conclusory allegation that the alleged First Amendment activity was a motivating factor

in terminating her employment. (Docket # 7 at 13–14.) The causal connection element can
be satisfied if a defendant sets in motion a series of events that he knew or reasonably should
have known would cause the constitutional deprivation. Conner v. Reinhard, 847 F.2d 384,
397 (7th Cir. 1988).
The crux of Defendants’ argument is that the recommendation letter, as cited in

Tempel’s complaint, unequivocally shows that Tempel was not terminated because of what
she said, but because of the manner, method, and means by which she expressed her
disagreement. (Docket # 13 at 7.) It is true that the letter, as quoted in the complaint, does
indeed state that while Tempel was entitled to disagree with the decision, “the manner in
which you chose to express your disagreement . . . was inappropriate, disruptive, and in
violation of various District policies.” (Compl. ¶ 60.) Tempel, however, alleges that the true
reason underlying the termination decision was retaliation for exercising her First
Amendment rights. (Id. ¶¶ 65–66.) Tempel alleges facts showing the investigation and
termination recommendation came on the heels of the tweet at issue. (Id. ¶¶ 40– 41, 44, 47,

49–50, 60–61.) Thus, Tempel alleges sufficient facts, including the context and timing of her
termination, to sufficiently allege that her First Amendment activity was a motivating factor
in her termination. For these reasons, dismissal of Tempel’s First Amendment retaliation
claim is not warranted.
2. First Amendment Retaliation Claim Against Dr. Sebert
Defendants also challenge Tempel’s complaint against Dr. Sebert in his individual
capacity, arguing that the claim fails because Tempel: (1) cannot allege Dr. Sebert acted
under color of state law; (2) cannot establish a causal connection between Dr. Sebert and the
termination action1; and (3) Dr. Sebert is entitled to qualified immunity.
2.1 Acting Under Color of State Law
To succeed on a claim under § 1983, a defendant must be acting under color of state

law. Honaker v. Smith, 256 F.3d 477, 484 (7th Cir. 2001). Not every action by a state official
or employee is to be deemed as occurring “under color” of state law. Hughes v. Meyer, 880
F.2d 967, 971 (7th Cir. 1989). “Acting under color of state law” requires that the defendant
in a § 1983 action “have exercised power possessed by virtue of state law and made possible
only because the wrongdoer is clothed with the authority of state law.” Walker v. Taylorville
Corr. Ctr., 129 F.3d 410, 413 (7th Cir. 1997) (internal quotation and citation omitted). A
defendant acts under color of state law “when he abuses the position given to him by the
State.” Id. Thus, “acts by a state officer are not made under color of state law unless they are
related in some way to the performance of the duties of the state office.” Honaker, 256 F.3d

at 485.
Defendants argue that Dr. Sebert was not acting under color of state law because he
did not take the official action terminating Tempel’s employment; the final authority of
whether to terminate an employee rests with the Board alone. (Docket # 13 at 8.) But
whether one acts “under color of state law” simply requires that the defendant’s actions be
related to the performance of his duties. The complaint alleges that Dr. Sebert announced
Board Policy 2240, that community members delivered a letter to Dr. Sebert objecting to the
application of Board Policy 2240 to remove pro-LGBTQ+ signs, that Dr. Sebert co-drafted a

1 Defendants raise an argument in Section II(C) of their brief under the heading “Third, the Facts as Alleged
Do Not Properly Establish a First Amendment Retaliation Claim.” (Docket # 7 at 20–21.) This section largely
mirrors Defendants’ previous arguments that Tempel’s activity was not protected by the First Amendment and
that the complaint fails to sufficiently allege the protected conduct was a motivating factor in the termination
decision. (Id.) For the reasons already explained in this decision, I reject these arguments.
letter to the District reprimanding Tempel, that Dr. Sebert directed the District to investigate
Tempel, and that Dr. Sebert wrote to Tempel informing her that he was adopting the
findings and conclusions of the investigation report and was recommending to the Board
that her employment be terminated. (Compl. ¶¶ 10, 18, 47, 56, 60–61.) The Board then

voted to adopt Dr. Sebert’s recommendation, resulting in Tempel’s termination. (Id. ¶ 64.)
Even if Dr. Sebert was not the final decisionmaker, he had authority to order an
investigation of Tempel and offer a recommendation that was considered and adopted by
the Board. It is therefore difficult to find that these facts as pled do not sufficiently
demonstrate that Dr. Sebert’s actions were related “in some way to the performance of the
duties of the state office.” See Honaker, 256 F.3d at 485. Dismissal is not warranted on this
ground.
2.2 Causal Connection
Defendants also argue that Tempel insufficiently pleads that Dr. Sebert was

personally responsible for the alleged deprivation of her constitutional rights. (Docket # 7 at
17–20.) Dr. Sebert is sued in his individual capacity, and to recover damages under § 1983,
Tempel must establish Dr. Sebert’s personal responsibility for the claimed deprivation of a
constitutional right. See Crowder v. Lash, 687 F.2d 996, 1005 (7th Cir. 1982). A defendant’s
“direct participation”; however, is not required. Id. Rather, an “official satisfies the personal
responsibility requirement of section 1983 if she acts or fails to act with a deliberate or
reckless disregard of plaintiff’s constitutional rights, or if the conduct causing the
constitutional deprivation occurs at her direction or with her knowledge and consent.” Id.
Although Tempel alleges that Dr. Sebert’s conduct was malicious or in reckless

disregard of her First Amendment rights (Compl. ¶ 66), Defendants argue that the facts, as
pled, do not show conduct rising to the level of maliciousness or recklessness, but rather
show reasonable actions (Docket # 7 at 18–20). Such argument is premature on a motion to
dismiss; it should be raised either on summary judgment or at trial. I cannot find, as a
matter of law, on the pleadings alone that Dr. Sebert’s conduct was not deliberate or in

reckless disregard of Tempel’s rights and was in fact reasonable. And again, Tempel alleges
multiple facts tying the alleged constitutional deprivation to Dr. Sebert’s actions. (Compl.
¶¶ 10, 18, 47, 56, 60–61.) Dismissal is not warranted on this ground.
2.3 Qualified Immunity
Lastly, Defendants argue that Dr. Sebert is entitled to qualified immunity. “The
doctrine of qualified immunity shields officials from civil liability so long as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Gill v. City of Milwaukee, 850 F.3d 335, 340 (7th Cir. 2017)
(internal quotations and citations omitted). To determine whether an official is entitled to
qualified immunity, a court considers whether the facts, taken in the light most favorable to

the plaintiff, make out a violation of a constitutional right, and whether that constitutional
right was clearly established at the time of the alleged violation. Id.
The Seventh Circuit has stated that a Rule 12(b)(6) motion is not “always (if ever)
the most suitable procedural setting to determine whether an official is qualifiedly immune,
because immunity may depend on particular facts that a plaintiff need not plead to state a
claim.” Hanson v. LeVan, 967 F.3d 584, 589 (7th Cir. 2020). The court went on to state that
“a complaint may be dismissed under Rule 12(b)(6) on qualified immunity grounds where
the plaintiff asserts the violation of a broad constitutional right that had not been articulated
at the time the violation is alleged to have occurred.” Id. at 590 (internal quotation and
citation omitted). The court stated that “[u]ltimately, dismissal under Rule 12(b)(6) is
appropriate based on qualified immunity only when the plaintiffs’ well-pleaded allegations,
taken as true, do not state a claim of violation of clearly established law.” Id.
Dismissal based on qualified immunity is not appropriate at this juncture. Tempel’s

complaint alleges a violation of a constitutional right and this right was clearly established at
the time of Defendants’ actions. See Pickering, 391 U.S. at 568 (“To the extent that the
Illinois Supreme Court’s opinion may be read to suggest that teachers may constitutionally
be compelled to relinquish the First Amendment rights they would otherwise enjoy as
citizens to comment on matters of public interest in connection with the operation of the
public schools in which they work, it proceeds on a premise that has been unequivocally
rejected in numerous prior decisions of this Court.”). For this reason, dismissal is not
appropriate based on qualified immunity at this time. See Hanson, 967 F.3d at 590 (“The
district court concluded that the plaintiffs stated a claim for a violation of a clearly

established right, barring qualified immunity at this point in the litigation.”).
CONCLUSION
Tempel alleges that the District and Dr. Sebert terminated her employment in
retaliation for exercising her First Amendment rights. While Defendants argue that
Tempel’s complaint fails to state a claim for First Amendment retaliation and that the
complaint fails as to the claim against Dr. Sebert, I find that Tempel’s complaint sufficiently
states a claim against both Defendants. Thus, dismissal is not warranted under Rule
12(b)(6). Defendants’ motion is denied.
ORDER
NOW, THEREFORE, IT IS ORDERED that Defendants’ Motion to Dismiss
(Docket # 6) is DENIED.

Dated at Milwaukee, Wisconsin this 20" day of December, 2023.

BY THE S
NANCY JOS#PH
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10719365. Public record. Not legal advice.