GWINNETT

v.

SOUTHWEST FLORIDA REGIONAL PLANNING COUNCIL

Defendant. /

OPINION AND ORDER1

Before the Court is Defendant Southwest Florida Regional Planning Council’s (the “Council”) Motion to Dismiss (Doc. 14) and Plaintiff Nichole Gwinnett’s response in opposition (Doc. 17). The Court ordered supplemental briefing (Doc. 18), and those responses are here (Docs. 22; 23). For these reasons, the Court grants the Motion.

BACKGROUND2

This is a First Amendment retaliation case. (Doc. 1). The case is not about a citizen’s freedom of speech, rather it concerns a public employee’s right not to speak about private matters. (Doc. 1 at 5).

LEGAL STANDARD

A complaint must recite “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This pleading standard “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). A facially plausible claim allows a “court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. So the pleading must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

DISCUSSION

The Motion is broken into three parts: first, a jurisdictional challenge; second, argument related to an extrinsic document; and third, the 12(b)(6) attack.

A. Jurisdiction

First, the Council takes aim at jurisdiction. (Doc. 14 at 3-5). But it misses the mark. Because there is not diversity and Gwinnett fails to allege a sufficient claim, says the Council, there is no jurisdiction. Yet on its face, the Complaint invokes federal question jurisdiction by alleging a First Amendment violation under § 1983. Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg., 545 U.S. 308, 312 (2005) (“[F]ederal-question jurisdiction is invoked by and large by plaintiffs pleading a cause of action created by federal law (e.g., claims under 42 U.S.C. § 1983).”). So diversity is irrelevant. And the balance is an attack on the sufficiency of the claim under Rule 12(b)(6), not jurisdiction under Rule 12(b)(1). E.g., Howard v. Wilkinson, 305 F. Supp. 3d 1327, 1334 (M.D. Fla. 2018) (“A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the plaintiff’s complaint.”). To the extent the Council moves to dismiss for lack of jurisdiction, the Motion is denied.

B. Four Corners of the Complaint

Next, the Council points to Gwinnett’s formal grievance and a text message, which are outside the Complaint. (Doc. 14 at 5-8; 14-1). That is usually a no-no at the motion to dismiss stage. And this case is not an exception to the rule. A motion to dismiss typically transforms into summary judgment when a court considers matters outside the complaint. SFM Holdings, Ltd. v. Banc of Am. Sec., LLC, 600 F. 3d 1334, 1337 (11th Cir. 2010). There are limited exceptions—a “district court may consider an extrinsic document if it is (1) central to the plaintiff’s claim, and (2) its authenticity is not challenged.” Id. Yet these documents are neither central to Gwinnett’s claim nor undisputed. First, they are not central to the claim; the Complaint never even alludes to them. Cf. Hoffman-Pugh v. Ramsey, 312 F. 3d 1222, 1225-26 (11th Cir. 2002) (holding an entire book could be considered because it was referenced in the complaint and central to the defamation claim). And second, Gwinnett disputes their authenticity. (Doc. 17 at 11 (“[T]hese documents and their context are very much disputed.”)); see Harris v. Bd. of Trs. Univ. of Ala., 846 F. Supp. 2d 1223, 1239 (N.D. Ala. 2012) (“[B]ecause Defendant disputes its authenticity, the court cannot consider the exhibit without converting to the Rule 56 summary judgment standard.”). For both reasons, the Court does not consider these documents.

C. Sufficiency of the Claim

Finally, to state a claim for First Amendment retaliation, plaintiffs must plead (1) constitutionally protected speech; (2) an adverse consequence; (3) and a causal relationship between the protected speech and adverse conduct. Castle v. Appalachian Tech. Coll., 631 F. 3d 1194, 1197 (11th Cir. 2011). The parties mostly fight over the first prong. The Council asserts Gwinnett’s refusal to speak was unprotected. (Docs. 14 at 8-10; 22). Gwinnett disagrees and asks the Court to create a new test for public employee First Amendment retaliation cases. (Docs. 17 at 6-11; 23). The First Amendment protects “both the right to speak freely and the right to refrain from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714 (1977). Public employees are not stripped of those rights after accepting a job with the government. Lane v. Franks, 573 U.S. 228, 236 (2014). But the government can regulate the speech of its employees more than its citizens. E.g., Garcetti v. Ceballos, 547 U.S. 410, 418-19 (2006). This naturally creates a tension between the government’s need to control its own employees and those employees’ constitutional rights. Lane, 573 U.S. at 236-37. So courts balance those interests. Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cty., Ill., 391 U.S. 563, 568 (1968). And it all began over fifty years ago when a disgruntled teacher wrote a letter to his local newspaper—spawning a case called Pickering. Id. at 564. After decades of refinement, Pickering may protect public employee speech if it first crosses a constitutional threshold: the speech must be “as a citizen on a matter of public concern.” Garcetti, 547 U.S. at 418 (citing Pickering, 391 U.S. at 568). If not, “the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.” Id. (citing Connick v. Myers, 461 U.S. 138, 147 (1983)). In that event, the inquiry does not go to Pickering’s step-two balancing test. Alves v. Bd. of Regents of the Univ. Sys. of Ga., 804 F. 3d 1149, 1159-60, 1159 n.4 (11th Cir. 2015). The claim simply fails. E.g., Connick, 461 U.S. at 146-49. Speech is “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.” Lane, 573 U.S. at 241 (internal quotation marks and citation omitted). In short, the speech must be on “a subject of general interest and of value and concern to the public.” Id. (citation omitted). This “inquiry turns on the ‘content, form, and context’ of the speech.” Id. (quoting Connick, 461 U.S. at 147-48). Whether speech is of public concern is a question of law for courts to resolve. Alves, 804 F. 3d at 1159. Under a straightforward Pickering analysis, the Complaint is easily dismissed. It alleges Gwinnett refused to speak on a matter of private—not public—concern. (Doc. 1 at 4 (“Gwinnett’s refusal to speak on such private matters that were not work-related was her exercising her First Amendment rights.”); Doc. 1 at 5 (“Gwinnett’s [sic] refused to waive her First Amendment rights and speak on matters of private [sic] that did not involve her own job duties.”)). And Gwinnett repeatedly concedes this case is about “retaliation for not speaking on matters of private concern.” E.g., (Doc. 17 at 6). According to Gwinnett, she refused to speak about the assault because it was a private matter unrelated to work. (Doc. 1 at 3-5). So she did not need to disclose the intimate details the coworker entrusted with her. (Doc. 1 at 3-5). Clearly, the “main thrust” of Gwinnett’s refusal to speak was private in nature, specifically to keep the incident private. See Alves, 804 F. 3d at 1162, 1165-68 (“‘[T]he relevant inquiry is not whether the public would be interested in the topic of the speech at issue,’ it is ‘whether the purpose of the employee’s speech was to raise issues of public concern.’” (alteration accepted) (quoting Maggio v. Sipple, 211 F. 3d 1346, 1353 (11th Cir. 2000))). The refusal to speak, therefore, was unprotected by the First Amendment. Id. So the Complaint fails to state a claim. Ferrara v. Mills, 781 F. 2d 1508, 1512 (11th Cir. 1986) (“If the employee’s speech cannot fairly be characterized as constituting speech on a matter of public concern, the inquiry is at an end.”).³

In the next breath, Janus applied the Pickering framework to the agency fees at issue all the same. Id. at 2474-78. While the Court cannot “lightly cast aside” Supreme Court dicta, Janus does not change the result here. See Schwab v. Crosby, 451 F. 3d 1308, 1325 (11th Cir. 2006) (citation omitted) (“[T]here is dicta and then there is dicta, and then there is Supreme Court dicta.”). Janus differs because the union agency fees there were a blanket requirement for compelled speech on matters of public concern. Janus, 318 S. Ct. at

Here instead is the later refusal to speak to the supervisor on the matter as a private concern. 2472, 2474-77 (“[T]he union speech at issue in this case is overwhelmingly of substantial public concern.”). The case is both factually distinguishable (this case does not touch on blanket compelled speech through union dues) and legally distinguishable (this case involves compelled speech on a matter of private concern). And most important, whatever the extent of its impact on Pickering in compelled speech cases, Janus did not eliminate the public-concern requirement. In fact, much of the Supreme Court’s Pickering analysis there considered whether the agency fees amounted to speech on a matter of public concern. Id. at 2474-77. So neither Pickering nor its public-concern requirement suffered the same fate as Abood. See id. at 2486. Before Janus, courts applied Pickering to public employee compelled speech cases with little fanfare. See Nicholson v. Gant, 816 F. 2d 591, 593, 599-600 (11th Cir. 1987) (applying the Pickering framework when plaintiff objected to speech, was compelled to speak, and later fired due to the speech).⁴ Gwinnett tries to distinguish this line of cases, arguing they are limited to scenarios where the compelled speech related to performance of job duties. Even if accurate, which it is not, this misunderstands the public employee speech doctrine. Gwinnett only describes half of the threshold inquiry,

Pickering governs public employee speech cases, then—without discussion—it applied a standard for government-compelled citizen speech. Id. at *2-4. That case is not controlling, and the lack of analysis makes it unpersuasive. But also, Guardiola is distinguishable because, unlike here, the compelled speech there was on a matter of public concern. Id. at *2-4 (“Plaintiff was retaliated against because of his association with [a group] and the refusal of [the group’s] board members to publicly support the [school district].”). To the contrary, several post-Janus courts concluded Pickering still applies to compelled speech. See Meriwether v. Trs. of Shawnee State Univ., No. 1:18- cv-753, 2019 WL 4222598, at *13-17 (S.D. Ohio Sept.⁵, 2019) (applying Pickering to a compelled speech claim); Jordahl v. Brnovich, 336 F. Supp. 3d 1016, 1044-48 (D. Ariz. 2018) (same). Even if the Court reached Gwinnett’s proposed test, it is unavailing. Gwinnett proposes this new test: “(1) whether the public employer sought to compel speech, (2) to which the employee objects and (3) which is private speech unrelated to the discharge of the employee’s job duties.” (Doc. 23 at 5). To be sure, this is a creature of Gwinnett’s creation without citation to any authority. (Doc. 23 at 5-6). And the practical problems with such a test are endless. Take this for example. Say a nosey supervisor was keen on knowing what a public employee brought for lunch. After the supervisor presses the employee to divulge that private information, the employee refuses. So the supervisor threatens the employee to speak or be fired. Is that a First Amendment violation? Under Pickering, no because the public cares not whether a government employee brought turkey or ham for lunch.

Obviously, this would be a terrible reason to fire an employee. But at-will public employees can be fired for “a good reason, bad reason, or no reason at all,” just not for an unconstitutional reason. Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 606 (2008) (internal quotation marks and citation omitted). On the contrary, Gwinnett’s test would hold the public employer liable for that encounter as First Amendment retaliation. This would eschew decades of settled understanding that the First Amendment “does not empower [public employees] to ‘constitutionalize the employee grievance.’” Garcetti, 547 U.S. at 420 (quoting Connick, 461 U.S. at 154). And it contravenes the matter of public concern requirement first articulated in Pickering. Pickering, 391 U.S. at 574 (A public employee’s “exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal.”). Absent a contrary ruling from the Supreme Court or Eleventh Circuit, the Court must apply the Pickering framework to this case. Because the speech here is on a matter of private concern, it is not entitled to First Amendment protection. E.g., Alves, 804 F. 3d at 1165-68. On these facts, Gwinnett may have an employee grievance or some other action, but she has no First Amendment claim. To conclude otherwise ignores fifty years of Supreme Court precedent and turns countless disputes between public employees and employers into constitutional matters. While the Court appreciates Gwinnett presenting this “unique occasion” to “develop a proper test in a First Amendment compelled speech case,” there is no need to be the canary in that constitutional coal mine. (Doc. 23 at 1). Accordingly, it is now ORDERED: 1. Defendant’s Motion to Dismiss (Doc. 14) is GRANTED. 2. Plaintiff's Complaint (Doc. 1) is DISMISSED without prejudice. 3. Plaintiff may FILE an amended complaint on or before September 30, 2019. DONE and ORDERED in Fort Myers, Florida this 16th day of September, 2019.

UNITED STATES DISTRICT JUDGE

Copies: All Parties of Record