Decotiis v. Whittemore

United States Court of Appeals

For the First Circuit

No. 10-1242

ELLEN H. DECOTIIS,

Plaintiff, Appellant,

v.

LORI WHITTEMORE, individually and in her official capacity as

Director of Child Development Services—Cumberland; CHILD

DEVELOPMENT SERVICES-CUMBERLAND; DEBRA HANNIGAN, State Director

of Child Development Services,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Torruella and Lipez, Circuit Judges,

and Smith,* District Judge.

Rufus E. Brown, with whom Brown & Burke, Zachary L. Heiden,

and MCLU Foundation, were on brief for appellant.

Sarah A. Forster, Assistant Attorney General, with whom Janet

T. Mills, Attorney General, and Paul Stern, Deputy Attorney

General, were on brief for appellees.

March 24, 2011

* Of the District of Rhode Island, sitting by designation.

SMITH, District Judge. In this case we must consider the

First Amendment rights of a speech and language therapist working

as a state contractor.1 Navigating the shoals of the standard

articulated by the Supreme Court in Garcetti v. Ceballos, 547 U.S.

410 (2006), has proven to be tricky business, and particularly so

in the context of a motion to dismiss, because the inquiry is so

highly fact intensive and context specific.

Plaintiff Ellen H. Decotiis brought suit against Child

Development Services-Cumberland County ("CDS-Cumberland"), Lori

Whittemore individually and in her official capacity as Director of

CDS-Cumberland, and Debra Hannigan in her official capacity as

State Director of Child Development Services ("CDS") (collectively

the "Defendants") pursuant to 42 U.S.C. § 1983. Decotiis alleges

that she was retaliated against in violation of her First Amendment

free speech rights for expressing her opinion to parents that CDS-

Cumberland was not in compliance with state regulations and urging

parents to contact advocacy organizations to address this problem.

She seeks a declaration that the non-renewal of her CDS-Cumberland

contract was a violation of her First Amendment rights, injunctive

1

Though we recognize that Plaintiff is a government

contractor, for ease of reference, we generally refer to

"government employees" or "public employees" throughout our

discussion of First Amendment principles, noting explicitly where

Plaintiff's status as a government contractor affects the analysis.

See Bd. of Cnty. Comm'rs v. Umbehr, 518 U.S. 668, 678 (1996)

(noting that the existing First Amendment framework for government-

employee speech can accommodate differences between government

employees and contractors).

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relief to reinstate her contract and to prevent future retaliation

based on protected speech, and attorney's fees. She also seeks

compensatory and punitive damages from Whittemore, and compensatory

damages from CDS-Cumberland.

The district court dismissed the complaint pursuant to

Rule 12(b)(6) of the Federal Rules of Civil Procedure. On appeal

Decotiis argues that the district court erred in holding that her

speech was not protected by the First Amendment under the principle

enunciated in Garcetti and in holding that Whittemore is entitled

to qualified immunity. We affirm the district court's judgment

dismissing the complaint against Whittemore, because she is

entitled to qualified immunity in her individual capacity and the

suit against Whittemore in her official capacity is redundant of

the suit against CDS-Cumberland. However, we conclude that the

complaint sufficiently alleges a constitutional violation,

particularly in light of two holdings of this Court that came after

the district court's ruling and limned the contours of the Garcetti

doctrine. We therefore vacate the judgment dismissing the

complaint against Hannigan and CDS-Cumberland, and remand for

proceedings consistent with this opinion.

I.

On review of a grant of a motion to dismiss, we state the

facts as set forth in the complaint, drawing all reasonable

inferences in favor of the plaintiff, the non-moving party.

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Cunningham v. Nat'l City Bank, 588 F.3d 49, 51 (1st Cir. 2009).

CDS is a system of intermediate educational units2

created under state and federal law to provide early intervention

and special education services under the Individuals with

Disabilities Education Act ("IDEA") for children with disabilities

from birth to five years old. It is supervised by the Maine

Department of Education. At the time the complaint was filed,

fifteen regional sites, including CDS-Cumberland, comprised the

system. Defendant Whittemore is the director of CDS-Cumberland and

is alleged to be personally responsible for the retaliation against

Decotiis. Defendant Hannigan is the state director of CDS.

Decotiis is a speech and language therapist licensed by

the state of Maine who over the previous eighteen years, and at the

time of the events giving rise to this action, had contracts with

various regional CDS sites to provide speech and language therapy

and evaluations for children.

In May 2008, Chapter 101 of the Maine Unified Special

Education Regulation ("Unified Rule 101") was adopted. Prior to

its adoption, eligible children generally received services for the

full calendar year, in accordance with their Individualized Family

2

The term is not defined in the complaint, but "intermediate

educational unit" is defined by the Education title of the Code of

Federal Regulations as "any public authority, other than [a local

education agency], that is under the general supervision of a State

educational agency, that is established by State law for the

purpose of providing free public education on a regional basis, and

that provides special education and related services to children

with disabilities within that State." 34 C.F.R. § 222.50.

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Service Plans ("IFSP") or Individualized Education Plans ("IEP").

Unified Rule 101, however, limited these services for children aged

three to five years old to the school year (September through

June). As a result, services were not provided to children over

the summer unless they were deemed eligible for extended school

year services ("ESY services"). In response to this new

regulation, the state CDS adopted a policy offering ESY services as

"the exception and not the rule." (Compl. ¶ 22.) That is, ESY

services were to be provided only when a child's IEP team decided

that the services were necessary to give the child a free and

appropriate public education under IDEA. According to the

complaint, Unified Rule 101 and CDS's new policy generated a stir;

the CDS regional sites, service providers, and parents of children

with disabilities throughout Maine were confused and concerned.

This concern stemmed particularly from the absence of a clear

procedure outlining the objective standards that would support

eligibility determinations for ESY services.

In the spring of 2008, Decotiis was working under

contracts with three regional CDS sites, including CDS-Cumberland,

to provide speech and language services to children. It was around

this time that Whittemore, case managers at CDS-Cumberland, and

parents of children served by CDS-Cumberland informed Decotiis

about CDS-Cumberland's approach to ESY-service determinations.

Specifically, Decotiis was told that it was unlikely that children

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would receive ESY services unless they were considered severely

disabled, and that children who received a single service (for

example, only speech therapy) would not qualify for ESY services.

Moreover, Decotiis was told that eligibility determinations were

being made without the benefit of IEP meetings and that IEP

meetings discussing children's eligibility for ESY services were

only held at the insistence of parents. Decotiis also learned that

Whittemore no longer trusted her clinical judgment as a result of

what Whittemore perceived to be Decotiis's high rate of ESY-service

recommendations, and that Whittemore would no longer accept her

recommendations. In contrast to the practices of CDS-Cumberland,

at the other two regional CDS sites for which Decotiis worked,

Decotiis submitted quarterly reports for her caseload, including

her recommendations for ESY services; she would then be notified of

IEP meetings; and at these meetings, the team would review her

recommendations and make decisions about ESY services.

After learning about CDS-Cumberland's approach to ESY

services, Decotiis approached Hannigan about the discrepancy

between the practices of the different regional sites. Hannigan

responded that she had no insight into these differences.

Subsequently, Decotiis contacted two advocacy groups in Maine,

which advised her that CDS-Cumberland did not appear to be in

compliance with state and federal law.

Shortly thereafter, Decotiis "informed parents of

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children she was treating that she was confused and concerned about

the criteria CDS-Cumberland was using for eligibility for [ESY]

services and that parents should contact [advocacy organizations]

for guidance concerning their rights under IDEA." (Id. ¶ 42.) She

also posted a notice in her office with the names and telephone

numbers of the advocacy organizations for the benefit of parents,

because she believed that CDS-Cumberland had given parents the

incorrect number for one of the organizations.

In a letter dated July 29, 2008, CDS-Cumberland informed

Decotiis that her contract, due to expire on September 1, 2008,

would not be renewed.3 As of August 7, 2009, the date of the

complaint, Decotiis was still working under contract at two other

regional CDS sites.4 Defendants moved to dismiss the complaint.

The district court granted that motion, without a hearing, on

January 28, 2010. Decotiis now appeals.

II.

We review de novo the district court's dismissal under

Rule 12(b)(6). Cook v. Gates, 528 F.3d 42, 48 (1st Cir. 2008).

3

Though Decotiis refers to the termination of her employment

in some paragraphs of her complaint, it appears clear on appeal

that the alleged retaliatory action was in fact the non-renewal of

her contract with CDS-Cumberland.

4

Decotiis alleges additional facts in the complaint supporting

her claim that the non-renewal of her contract was in retaliation

for her speech. These facts have been omitted because they are not

relevant to our discussion here. See infra note 7 (noting that

Defendants do not contend that Plaintiff inadequately pled

retaliation).

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The Court is not "wedded to the lower court's rationale" and may

affirm the district court's order of dismissal "on any ground made

manifest by the record." Roman-Cancel v. United States, 613 F.3d

37, 41 (1st Cir. 2010).

On a motion to dismiss, "we accept as true all well-

pleaded facts in the complaint and draw all reasonable inferences

in favor of the plaintiff[]." Gargano v. Liberty Int'l

Underwriters, Inc., 572 F.3d 45, 48-49 (1st Cir. 2009). The

Federal Rules of Civil Procedure require a complaint to set forth

"a short and plain statement of the claim showing that the pleader

is entitled to relief." Fed. R. Civ. P. 8(a)(2). To survive a

motion to dismiss, this short, plain statement must "give the

defendant fair notice of what the . . . claim is and the grounds

upon which it rests," and allege "a plausible entitlement to

relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 559

(2007). This plausibility standard "asks for more than a sheer

possibility that a defendant has acted unlawfully." Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1949 (2009). Applying the plausibility

standard is "a context-specific task that requires the reviewing

court to draw on its judicial experience and common sense." Id. at

1950.

A. First Amendment Claim

Decotiis first argues on appeal that the district court

erred in holding that she did not speak as a citizen. Though the

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question is a close one, we agree that the district court erred in

so holding, particularly when we consider our recent decisions

interpreting Garcetti. Viewing the facts set forth in the

complaint in the light most favorable to Decotiis, we conclude that

she has alleged facts that form the basis of a plausible

constitutional violation for which relief may be granted.

We begin with some fundamentals. Government employees

undoubtedly walk a tight rope when it comes to speaking out on

issues that touch upon their fields of work and expertise. It is

well settled that "as a general matter the First Amendment

prohibits government officials from subjecting an individual to

retaliatory actions . . . for speaking out." Mercado-Berrios v.

Cancel-Alegria, 611 F.3d 18, 25-26 (1st Cir. 2010) (quoting Hartman

v. Moore, 547 U.S. 250, 256 (2006)) (internal quotation marks and

citations omitted). This right is not absolute, however; while

public employees do not forfeit all of their First Amendment rights

by undertaking public employment, "in recognition of the

government's interest in running an effective workplace, the

protection that public employees enjoy against speech-based

reprisals is qualified." Id. at 26.

To determine whether an adverse employment action5

5

For purposes of a First Amendment retaliation claim, the

non-renewal of an employee's contract constitutes an adverse

employment action. See Barton v. Clancy, 632 F.3d 9, 26 (1st Cir.

2011) ("First Amendment protections apply with equal force whether

the public employee is terminated from a position or not

reappointed.").

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against a public employee violates her First Amendment free speech

rights, this Court has articulated a three-part inquiry. See

Rodriguez-Garcia v. Miranda-Marin, 610 F.3d 756, 765-66 (1st Cir.

2010). First, a court must determine "'whether the employee spoke

as a citizen on a matter of public concern.'" Curran v. Cousins,

509 F.3d 36, 45 (1st Cir. 2007) (quoting Garcetti, 547 U.S. at

418). Second, the court must "balance . . . the interests of the

[employee], 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. at 44 (quoting Pickering v. Bd. of Educ., 391 U.S.

563, 568 (1968)) (omission in original). Third, the employee must

"show that the protected expression was a substantial or motivating

factor in the adverse employment decision." Id. at 45. If all

three parts of the inquiry are resolved in favor of the plaintiff,

the employer may still escape liability if it can show that "it

would have reached the same decision even absent the protected

conduct." Rodriguez-Garcia, 610 F.3d at 765-66 (citing Mt. Healthy

City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).

The Court must first determine whether the speech touched

upon a matter of public concern.6 Where speech relates to a matter

of inherent public concern, such as official malfeasance or the

neglect of duties, this inquiry is confined to the subject matter

6

Defendants do not pursue this issue on appeal.

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of the speech. See Curran, 509 F.3d at 46; Jordan v. Carter, 428

F.3d 67, 73 (1st Cir. 2005). Here, Decotiis informed the parents

of children receiving speech and language services from CDS-

Cumberland, the public agency charged with providing these

services, that CDS-Cumberland may have been withholding certain

services to which the children were legally entitled. She also

urged the parents to contact advocacy groups for guidance on the

matter. The subject matter of her speech plainly relates to a

matter of inherent concern, and we therefore easily conclude that

Decotiis's speech touched upon a matter of public concern.

However, whether Decotiis was speaking as a citizen, and the merits

of the Pickering balancing test, are up for debate.7

1. Garcetti Analysis

In Garcetti, the Supreme Court held that public employees

do not speak as citizens when they "make statements pursuant to

their official duties," and that accordingly, such speech is not

protected by the First Amendment. 547 U.S. at 421. In Garcetti

itself, there was no dispute about whether the speech in question

had been made pursuant to the plaintiff's employment duties, and so

the Court noted that it had "no occasion to articulate a

comprehensive framework for defining the scope of an employee's

duties in cases where there is room for serious debate." Id. at

7

We do not reach the issue of retaliation (i.e., whether the

speech was a substantial or motivating factor in the adverse

employment action), because Defendants do not allege that it was

inadequately pled.

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424. The Court did, however, provide some guidance as to how such

a determination should be made. In describing speech made pursuant

to employment duties, the Court included "speech that 'owes its

existence to a public employee's professional responsibilities',

speech that the employer 'has commissioned or created', speech that

the employee 'was paid to' make, speech that the employee's

'duties . . . required him to' make, speech that amounts to the

employee's 'work product', and speech that is an 'official

communication[].'" Mercado-Berrios, 611 F.3d at 27 n.9 (quoting

Garcetti, 547 U.S. at 421-23) (alteration and omission in original)

(citations omitted).

At the time of the district court's order, this Court had

not yet had occasion to consider the application of Garcetti, and

particularly the question of what it means to speak "pursuant to"

one's employment duties. We recently considered the application of

Garcetti in two cases, Foley v. Town of Randolph, 598 F.3d 1 (1st

Cir. 2010), and Mercado-Berrios, 611 F.3d 18, both of which inform

the analysis.8

In Foley, the chief of the town's fire department brought

a First Amendment retaliation claim alleging that the town and town

officials suspended him for publicly criticizing the fire

department's lack of funding and staffing during a press conference

8

Foley was decided after the district court's decision now on

review, but was discussed by the parties in their briefs to this

Court. Mercado-Berrios was issued after briefing closed in this

appeal.

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he gave at the scene of a fatal fire. 598 F.3d at 2-4. In

concluding that the fire chief's speech took on the character of an

"official communication" rather than that of citizen speech, we

stressed the importance of context in applying the Garcetti test,

noting that it was not determinative that the plaintiff "was not

required to speak to the media." Id. at 6-7 (emphasis in

original). Specifically, we found three contextual factors

significant: the fire chief "spoke while in uniform and on duty; he

spoke from the scene of a fire where he had been in command as the

Chief of the Fire Department; and his comments were bookended by

those of another official — the State Fire Marshal." Id. at 8.

The fire chief's speech was moreover "entirely related to matters

concerning the Fire Department." Id. The combination of these

contextual factors gave the appearance that the comments had the

fire department's imprimatur and were not citizen speech. Id.

In Mercado-Berrios, we again considered the character of

public employee speech. Mercado-Berrios was a transitory employee

of the Puerto Rico Tourism Company, a public corporation charged

with "regulating, investigating, overseeing, intervening and

imposing sanctions" on persons providing tourism-related ground

transportation in Puerto Rico. 611 F.3d at 20. After she and her

colleagues were told to "hold your horses" and cease issuing

citations to certain luxury vehicles, Mercado-Berrios complained to

three other employees, two shift supervisors and an attorney. Id.

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at 21. Shortly thereafter, she applied for a permanent position

but was passed over. Id. at 21-22. On the heels of this

rejection, she brought suit alleging retaliation. Id. at 22.

In Mercado-Berrios we emphasized the importance of the

two-step, context-specific inquiry needed to determine whether

speech is "made pursuant to the employee's official duties." Id.

at 26. First, a court must ask, "what are the employee's official

responsibilities?," and second, "was the speech at issue made

pursuant to those responsibilities?" Id. After undertaking this

two-part inquiry, we concluded that both sides had strong arguments

and affirmed the district court's decision in Mercado-Berrios’s

favor because the defendant had failed to adequately brief the

issue. Id. at 27-28.

The instant case presents what may be a not uncommon

scenario: a public employee who is hired to perform certain

specific functions believes her employer is not complying with the

law and suggests to constituents a method to exert pressure on the

public agency to encourage compliance. The question presented by

such a case is: when does the public employee take off her employee

hat and put on her citizen hat?

In identifying Plaintiff's official responsibilities,

"the proper inquiry is 'practical' rather than formal, focusing on

'the duties an employee actually is expected to perform,'" and not

merely those formally listed in the employee's job description.

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Id. at 26 (quoting Garcetti, 547 U.S. at 424-25). It appears that

the bulk of Decotiis's official duties related to evaluating and

providing services to clients and participating in IFSP/IEP

meetings.9 Neither party argues that she was expected to perform

duties substantially different from these formal job duties;

however, Defendants argue that the job description presumed

communication with parents.

Once the employment duties have been identified, the next

question is: "was the speech at issue made pursuant to those

responsibilities?" Id. at 26. Decotiis alleges retaliation for

speech that occurred when she "informed parents of the children she

was treating that she was confused and concerned about the criteria

CDS-Cumberland was using for eligibility for [ESY] services and

that parents should contact [advocacy groups] for guidance

concerning their rights under the IDEA."10 (Compl. ¶ 42.) To

9

The contract between Decotiis and CDS-Cumberland also

required Decotiis to "comply with all applicable CDS policies

communicated to the Contractor, as well as with Maine Department of

Education Rules and Regulations, applicable Professional Standards

of Practice, and any applicable State and/or Federal statute, rule

or regulation, including but not limited to compliance with the

Individuals with Disabilities Education Act (IDEA 2004), and the

Americans with Disabilities Act (ADA)." (Contract at 3, Ex. B to

Defs.' Reply Mem. in Supp. of Mot. to Dismiss.) It is reasonable

for us to presume that the speech at issue was not made in an

attempt to satisfy these obligations.

10

The district court referred to a statement in Decotiis's

complaint that she "posted information for advocacy groups in her

office for the benefit of [her clients'] parents." Decotiis v.

Whittemore, 680 F. Supp. 2d 263, 269 (D. Me. 2010) (quotation marks

and citation omitted). The complaint does not, however, allege

that Decotiis was retaliated against for this posting; rather, she

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determine whether such speech was made pursuant to official

responsibilities, the Court must take a hard look at the context of

the speech. Foley, 598 F.3d at 7. Although no one contextual

factor is dispositive, we believe several non-exclusive factors,

gleaned from the case law, are instructive: whether the employee

was commissioned or paid to make the speech in question, Garcetti,

547 U.S. at 421; the subject matter of the speech, id. at 421

(citing Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 414

(1979)); whether the speech was made up the chain of command, see

id. at 420; whether the employee spoke at her place of employment,

see Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192,

1205 (10th Cir. 2007); whether the speech gave objective observers

the impression that the employee represented the employer when she

spoke (lending it "official significance"), Foley, 598 F.3d at 7-8

& n.9; whether the employee's speech derived from special knowledge

obtained during the course of her employment, see Williams v.

Dallas Ind. Sch. Dist., 480 F.3d 689, 694 (5th Cir. 2007); and

whether there is a so-called citizen analogue to the speech,

Garcetti, 547 U.S. at 423.

Applying these factors, we identify some common ground

between the parties: Decotiis was not literally authorized or

alleges retaliation for giving advice to parents. Accordingly, we

limit our discussion to this allegation. The district court did

correctly note, however, that Decotiis never asserts that she was

retaliated against for reaching out to advocacy groups. Id. at 269

n.3. Therefore, like the district court, we do not include that in

our analysis.

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instructed to make the speech at issue. Indeed, the facts are

quite the contrary; Decotiis's speech was "not made 'pursuant to'

her job duties in the most literal sense." Mercado-Berrios, 611

F.3d at 27. Nothing in the complaint suggests that CDS-Cumberland

authorized or commissioned Decotiis to urge parents to contact

advocacy groups. Her speech may have been related to the subject

matter of her job, but it was not, strictly speaking, among her

enumerated duties to make such speech.11 That being said, it is not

determinative that an employee was not required to make the speech

at issue. Foley, 598 F.3d at 6. An employee's job description is

neither necessary nor sufficient to dictate the bounds of speech

made pursuant to her employment duties. Garcetti, 547 U.S. at 425.

By the same token, it is not dispositive that Decotiis's speech

"concerned the subject matter of [her] employment." See id. at

420-21. Nothing in Garcetti or the decisions interpreting it can

fairly be read to suggest that all speech tangentially or broadly

relating to the work of a public employee is per se unprotected.

Beyond this, the analysis becomes more difficult, in part

due to the posture of the case. Our review on a motion to dismiss

is confined to the face of the complaint, and while Decotiis has

stated facts sufficient to establish citizen speech, many other

11

Decotiis's speech also could not honestly be characterized

as her "work product," as it was discussed in Garcetti. Whereas in

Garcetti the speech at issue was a memorandum written by an

attorney at the request of his supervisor, 547 U.S. at 414, the

speech here was not of the sort Decotiis was expected to make in

the course of delivering therapeutic services.

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facts that would lend context to her speech are not available. For

example, there is no indication where Decotiis advised her clients'

parents. She may very well have been in her office (as the

district court presumed); but viewing the facts in the light most

favorable to Decotiis, she also could have spoken to parents in the

grocery store on a Sunday afternoon, or from home on the telephone

after hours, or at any sort of social event where people encounter

one another in a small community.12

It is also not apparent from the complaint whether the

speech was made during Plaintiff's work hours, or perhaps more

relevantly, during a therapy session. Although the district court

presumed "that the speech at issue here occurred during therapy

sessions and/or evaluations conducted by the Plaintiff on behalf of

CDS-Cumberland," Decotiis, 680 F. Supp. 2d at 269, we find no basis

for this conclusion within the four corners of the complaint. Such

facts may prove true as this litigation unfolds, but based only on

the facts alleged in the complaint, such a presumption is

12

This is not to imply that all speech made within one's

office or workspace is necessarily unprotected. See Garcetti, 547

U.S. at 420 (citing Givhan, 439 U.S. at 414) ("Employees in some

cases may receive First Amendment protection for expressions made

at work."). Rather, it is only to point out that the more

intertwined the speech is with the employee's work station the less

likely it is that the speech is protected as citizen speech. Cf.

Brammer-Hoelter, 492 F.3d at 1205 (holding that the teachers'

speech was citizen speech because it occurred after hours and

outside of the workplace, the teachers "had no supervisory

responsibility and no duty to report with regard to any of the

problems being discussed," and the discussion included members of

the public).

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inappropriate.

Furthermore, indulging all inferences in favor of

Decotiis, we cannot conclude that her speech bore the appearance of

official status or significance. The complaint states that she

spoke to the parents of her clients, and it is true that speech

made to an audience to which an employee only has access through

her job is generally less akin to citizen speech.13 See, e.g.,

Foley, 598 F.3d at 7 & n.9 (noting that the fact that the fire

chief was "in uniform and on duty" at the time of the speech was

not determinative but "relevant and important to the inquiry");

Tabb v. District of Columbia, 605 F. Supp. 2d 89, 95 (D.D.C. 2009)

13

In part because of Decotiis's audience, the district court

and Defendants both analogize this case to Green v. Bd. of Cnty.

Comm'rs, 472 F.3d 794 (10th Cir. 2007). In that case, a drug-

laboratory technician, concerned that her laboratory did not have

a confirmation-testing policy, arranged for an outside hospital to

perform a confirmation test for a client who repeatedly advised the

technician that she was not using drugs. Id. at 796. The outside

test revealed a false positive, and her employer adopted a

confirmation-testing policy in response. Id. Subsequently, the

technician was subject to adverse employment action. Id. After

considering many of the contextual factors we have delineated here,

the Tenth Circuit concluded that the technician's speech was made

pursuant to her employment duties because it "stemmed from and

[was] the type of activit[y] that she was paid to do," and it

reflected "the types of communications that would be attributable"

to the laboratory, among other things. Id. at 800-01.

Although this case is somewhat similar to Green the Tenth

Circuit based its decision on material facts that are

distinguishable from the facts alleged here — for example, it was

clear that the technician was speaking in the laboratory, to

clients, and even interacting with other agencies (the Department

of Human Services and the outside hospital) in her capacity as an

employee. Drawing all reasonable inferences in favor of Decotiis,

as we must do at this stage of the litigation, the facts here are

not truly analogous to Green.

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("If plaintiff was generally responsible for presenting the public

face of the agency . . . and if she expressly spoke in that

capacity . . . then, under Garcetti . . . these statements likely

are not protected."). However, the complaint does not suggest, for

example, that parents were led to believe that Decotiis was

speaking on behalf of CDS-Cumberland, or that Decotiis used her

position of authority and trust, as the children's therapist, to

lend her advice greater credence or persuasiveness. Therefore,

drawing all reasonable inferences in Decotiis's favor, as we must,

we conclude that Decotiis's speech did not create the appearance of

CDS-Cumberland's approval or official significance.

Here, the complaint does not reveal whether Decotiis's

speech was confined to information she had obtained through her

employment, that is, whether her speech reflected "special

knowledge" attributable to her work. See Williams, 480 F.3d at 694

(concluding that speech was not protected when the employee's

knowledge was derived from his position, he spoke to other

employees, and the speech concerned the subject matter of his

employment). The complaint states that Unified Rule 101 and CDS's

related policies had generated consternation among service

providers and parents throughout the state. In light of this, it

is reasonable to infer that such concern was the subject of public

discussion and that Decotiis's knowledge was therefore publically

available and not unique to her and those in her employment

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position.14

Finally, we look to whether there is a so-called citizen

analogue to Decotiis's speech. See Garcetti, 547 U.S. at 423

(holding that public-employee speech may be protected when it is

"the kind of activity engaged in by citizens who do not work for

the government"). Plaintiff argues that her speech was analogous

to the speech of other citizens; she says that parents of children,

advocacy groups, therapists, professional associations, and lawyers

were all discussing the issues about which she spoke. Viewing the

facts alleged in the complaint in the light most favorable to

Decotiis, her speech appears to have been sufficiently analogous to

the speech of other citizens in the community troubled by the new

regulation and policy.

In short, while we cannot conclusively say that

Plaintiff's speech was made as a citizen, the scope of our review

on a motion to dismiss does not demand as much; it is sufficient

that the complaint alleges facts that plausibly set forth citizen

speech. See Sepulveda-Villarini v. Dep't. of Educ. of P.R., 628

F.3d 25, 30 (1st Cir. 2010) (Souter, J.) ("A plausible but

inconclusive inference from pleaded facts will survive a motion to

dismiss . . . ."). We conclude that Decotiis has surmounted this

bar, and therefore the district court's dismissal for failure to

14

Defendants argue that Decotiis's speech exploited not only

special knowledge but also confidential information, in violation

of federal law. Such an inference would not be reasonable based on

the allegations in the complaint.

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state a claim was in error.15

2. The Pickering Test

Defendants argue alternatively that even if Decotiis was

speaking as a citizen on a matter of public concern, her speech was

nevertheless unprotected under the Pickering test. The Pickering

test attempts to "balance the value of an employee's speech — both

the employee's own interests and the public's interest in the

information the employee seeks to impart — against the employer's

legitimate government interest in 'preventing unnecessary

disruptions and inefficiencies in carrying out its public service

mission.'" Guilloty Perez v. Pierluisi, 339 F.3d 43, 52 (1st Cir.

2003) (quoting O'Connor v. Steeves, 994 F.2d 905, 915 (1st Cir.

1993)); see also Pickering, 391 U.S. at 568 ("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

15

This result may lead one to question whether a defendant

could ever prevail on a motion to dismiss where the parties contest

whether the employee spoke as a citizen. We can only note that

there are reported cases in which dismissal for failure to state a

claim was held to be appropriate. See Abcarian v. McDonald, 617

F.3d 931, 937 (7th Cir. 2010) (affirming the grant of a motion to

dismiss, in part on the grounds that a "natural reading of the

allegations" in the complaint led to the conclusion that the

employee spoke pursuant to his employment duties). It is also

true, however, that much like the Pickering balancing test, the

fact-intensive nature of the Garcetti analysis does not easily lend

itself to dismissal on a Rule 12(b)(6) motion. Cf. Jordan v.

Carter, 428 F.3d 67, 73 (1st Cir. 2005) (noting that, on a motion

to dismiss, the court had little on which to base the

"particularized" inquiry envisioned by Pickering).

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efficiency of the public services it performs through its

employees.").

In assessing the government's interest in allaying

disruption and inefficiencies in the workplace, a court should

include in its considerations (1) "the time, place, and manner of

the employee's speech," and (2) "the employer's motivation in

making the adverse employment decision." Davignon v. Hodgson, 524

F.3d 91, 104 (1st Cir. 2008). As with the Garcetti analysis, the

Pickering balancing test requires a hard look at the facts of the

case, including the nature of the employment and the context in

which the employee spoke. See id.

The district court noted that Plaintiff's speech was

likely not protected under Pickering because she addressed only

those with whom she came in contact through her job, and not a

wider audience. Decotiis, 680 F. Supp. 2d at 271. Taking the

district court's conclusion one step further, Defendants argue that

CDS-Cumberland has a strong interest in restricting Decotiis's

speech to prevent her from interfering with its ability to

effectively communicate with the vulnerable population it serves.

In their view, CDS's mission was undermined when Decotiis urged

parents to contact advocacy agencies and planted seeds of doubt as

to the legality of CDS-Cumberland's policies. Decotiis responds

that Defendants' bald assertions of workplace disruption are

insufficient to meet the Pickering standard.

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The posture of the case makes such a "particularized"

inquiry relatively uninformed, especially when assessing the

government's interests. See Jordan, 428 F.3d at 73. Considering

Plaintiff's interests first, the value of the employee's speech

appears significant. In addition to Decotiis's interest in her own

speech, the public also had a non-trivial interest in the

information Decotiis sought to convey, i.e., that a state-

supervised agency may have been illegally denying special education

services to the children it was charged with serving.

On Defendants' side, the complaint does not reveal the

exact time, place, and manner of Decotiis's speech, but it does

state that Decotiis spoke to her clients' parents. While

questioning the legality of CDS-Cumberland's policies in the

presence of its clients' parents could result in significant

disruption and inefficiency, with only the facts in the complaint

before us, we cannot say that such a risk of disruption and

inefficiency outweighs the important interests served by Decotiis's

speech.16 This is especially so because we must consider the

motivation underlying the non-renewal. Accepting the complaint's

16

Decotiis argues that her status as a government contractor,

rather than a government employee, abates Defendants' interest in

controlling her speech. See Umbehr, 518 U.S. at 684 ("Independent

government contractors are similar in most relevant respects to

government employees, although both the speaker's and the

government's interests are typically — though not always — somewhat

less strong in the independent contractor case."). But we need not

consider this argument because we conclude that the balancing

weighs in Decotiis's favor even if she were a government employee

and not a contractor.

-24-

well-pleaded facts as true, the sole motivation behind the non-

renewal was retaliation, not the furtherance of governmental

interests. Having concluded that the Pickering balancing test tips

in Plaintiff's favor, we hold that the complaint alleges a

plausible constitutional violation.

B. Qualified Immunity

The district court held that Defendant Whittemore, in her

individual capacity, is entitled to qualified immunity because the

law was not so clearly established as to put Whittemore on fair

notice that she would be violating Decotiis's First Amendment

rights by not renewing her contract. Decotiis, 680 F. Supp. 2d at

274. We agree with the district court.

"The qualified immunity doctrine provides defendant

public officials an immunity from suit and not a mere defense to

liability." Maldonado v. Fontanes, 568 F.3d 263, 268 (1st Cir.

2009). To prevent the unnecessary litigation of claims from which

public officials are immune, "immunity is to be resolved at the

earliest possible stage in litigation." Id. A plaintiff may

overcome qualified immunity by first making out the violation of a

constitutional right, and second, establishing that the "right was

'clearly established' at the time of the defendant's alleged

violation." Id. at 268-69 (quoting Pearson v. Callahan, 555 U.S.

223 (2009)). The "clearly established" step comprises two

subparts: first, whether "the contours of the right [were]

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sufficiently clear that a reasonable official would understand that

what he is doing violates that right," and second, "whether in the

specific context of the case, 'a reasonable defendant would have

understood that his conduct violated the plaintiffs' constitutional

rights.'" Mosher v. Nelson, 589 F.3d 488, 493 (1st Cir. 2009).17

The second step in the inquiry, "while requiring a legal

determination, is highly fact specific." Estrada v. Rhode Island,

594 F.3d 56, 63 (1st Cir. 2010) (quoting Nelson v. Kline, 242 F.3d

33, 35 n.2 (1st Cir. 2001)).

A right is considered clearly established if viewed

objectively "at the time the defendant acted, he was on clear

notice that what he was doing was unconstitutional." Costa-Urena

v. Segarra, 590 F.3d 18, 29 (1st Cir. 2009); see also Philip v.

Cronin, 537 F.3d 26, 34 (1st Cir. 2008) (citing Harlow v.

Fitzgerald, 457 U.S. 800, 819 (1982)).18 For a constitutional right

to be clearly established there does not need to be a prior case

with factually identical circumstances finding such a right.

Mosher, 589 F.3d at 493. Rather, "notable factual differences may

17

In Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009),

we formally abandoned our use of the three-step analysis and

adopted the Supreme Court's two-part test; however, here, we spell

out the two subparts of the second prong because, as we noted, it

is "faithful to the substance" of the Supreme Court's test. Id.

18

The complaint states that Whittemore was "motivated by

actual malice" or that malice could be implied from her conduct.

(Compl. ¶ 57.) This does not affect our analysis, because an

allegation of malice does not defeat qualified immunity. Brown v.

Ives, 129 F.3d 209, 211 (1st Cir. 1997).

-26-

exist between prior cases and the circumstances at hand as long as

the state of the law at the time gave the defendant 'fair warning'

that his action or inaction was unconstitutional." Id. (quoting

Hope v. Pelzer, 536 U.S. 730, 741 (2002)). In other words, for the

right to be clearly established, the plaintiff must point to

controlling authority or a body of persuasive authority, existing

at the time of the incident, that can be said to have provided the

defendant with "fair warning." See Wilson v. Layne, 526 U.S. 603,

617 (1999).

At the time of Whittemore's alleged retaliatory action,

the Supreme Court's decision in Garcetti was the only controlling

case in the First Circuit, and even Garcetti stated that its

analysis was not to be mistaken for "a comprehensive framework for

defining the scope of an employee's duties in cases where there is

room for serious debate." 547 U.S. at 424. There were no

decisions in this circuit explaining the scope of a public

employee's employment duties and what it means to speak pursuant to

those duties, nor was there a body of decisions from other circuits

that could be said to have put Whittemore on clear notice. Even

though the broad constitutional rule, as set forth in Garcetti, may

have been clearly established, the contours of the right were still

cloudy.

This is illuminated by the analysis of the parties and

the district court. The two cases the parties rely on most heavily

-27-

in arguing that the Garcetti analysis must be resolved in their

respective favor, Green, 472 F.3d 794 (relied on by Defendants),

and Reinhardt v. Albuquerque Pub. Sch. Bd. of Ed., 595 F.3d 1126

(10th Cir. 2010) (relied on by Decotiis), reveal the muddiness of

this area of the law. Both decisions came from the Tenth Circuit;

they are thoughtful and compatible with one another; they concern

somewhat similar factual situations; but neither makes the outcome

of this case clear. What is more, Reinhardt had not been decided

at the time of Whittemore's alleged retaliation. As our discussion

above of the alleged constitutional violation makes pellucid, even

in light of the recent developments in this area of the law, this

is a close case.

Furthermore, though we conclude that Decotiis stated a

plausible claim for relief, the district court's opinion was a

well-reasoned exposition reflecting a thoughtful analysis of the

law as it existed at the time. This lends support to the

conclusion that the state of the law at the time of the alleged

constitutional violation was not clear enough in the circuits

generally, and in this circuit particularly, to put Whittemore on

fair notice that her actions constituted a constitutional

deprivation. Cf. Wilson, 526 U.S. at 618 ("If judges thus disagree

on a constitutional question, it is unfair to subject police to

money damages for picking the losing side of the controversy.").

We therefore hold that regardless of whether Whittemore

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did in fact violate Plaintiff's First Amendment rights, which is

yet to be determined, a reasonable person in Whittemore's position

could have believed that she was not violating Decotiis's

constitutional rights by not renewing her contract. As such,

qualified immunity is available to Whittemore in her individual

capacity.19

C. Claims against Hannigan and CDS-Cumberland

In light of its conclusion that Decotiis had failed to

make out a constitutional claim against Whittemore, the district

court dismissed the supervisory liability claim against Hannigan,

along with the claim against CDS-Cumberland based on practice,

custom, or policy, and adequate employee training. The district

court did not reach Defendants' Eleventh Amendment immunity

argument, but it noted that dismissal on those grounds was "likely

appropriate" as to CDS-Cumberland and Hannigan. Decotiis, 680 F.

Supp. 2d at 275 n.6.

We vacate the dismissal of the claims against Hannigan

and CDS-Cumberland because our conclusion that Decotiis adequately

pled a constitutional violation as to Whittemore nullifies the

19

The district court dismissed the action against Whittemore

in her official capacity as redundant given that CDS-Cumberland is

also a defendant to this suit. See Kentucky v. Graham, 473 U.S.

159, 166 (1985) ("As long as the government entity receives notice

and an opportunity to respond, an official-capacity suit is, in all

respects other than name, to be treated as a suit against the

entity."); Surprenant v. Rivas, 424 F.3d 5, 19 (1st Cir. 2005) ("A

suit against a public official in his official capacity is a suit

against the governmental entity itself."). Plaintiff does not

challenge this dismissal on appeal.

-29-

district court's grounds for dismissal as to Hannigan and CDS-

Cumberland. Because the parties did not brief the sufficiency of

Decotiis's claims against Hannigan or CDS-Cumberland under these

circumstances, we leave the issues for the district court's

determination, if necessary, on remand. Similarly, the parties did

not address in their briefing or arguments whether Defendants are

entitled to Eleventh Amendment immunity, and so we do not express

an opinion on the matter.

III.

For the foregoing reasons, we affirm the judgment of the

district court as to Defendant Whittemore, vacate the judgment of

the district court as to Defendants Hannigan and CDS-Cumberland,

and remand for further proceedings consistent with this opinion.

Each party shall bear its own costs.

So ordered.

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