Civil Action No. 03-3582 Section: I/4.
September 9, 2004
ORDER AND REASONS
This matter is before the Court pursuant to a motion, filed on behalf of defendants, Dr. Brad O'Hara ("O'Hara") and Dr. Randy Moffett ("Moffett"), seeking dismissal of plaintiff's civil rights claims pursuant to 12(b)(6) on the ground that defendants are entitled to qualified immunity. Plaintiff, Jill Landesberg-Boyle, opposes the motion. For the following reasons, defendants' motion to dismiss is DENIED.
FACTS AND PROCEDURAL HISTORYOn December 23, 2003, plaintiff filed this action alleging claims against defendant, the State of Louisiana through the University of Louisiana Systems, Southeastern Louisiana University ("SLU"), pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and claims against defendants, O'Hara and Moffett, in their official and individual capacities pursuant to 42 U.S.C. § 1983. Additionally, plaintiff alleged a state law claim for intentional infliction of emotional distress against O'Hara and Moffett.
On February 18, 2004, defendants filed a motion pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6) asserting that (1) pursuant to Louisiana law, SLU is not an entity that may be sued and, therefore, plaintiff's Title VII claims against it must be dismissed; (2) that this court lacked subject matter jurisdiction over any claim brought pursuant to § 1983 for damages against O'Hara and Moffett in their official capacities; and (3) plaintiff's § 1983 claims against O'Hara and Moffett in their individual capacities should be dismissed on the ground of qualified immunity. Alternatively, O'Hara and Moffett moved for an order requiring plaintiff to file a reply or a more definite statement addressing their assertion of qualified immunity.
On July 6, 2004, this Court entered an order and reasons dismissing plaintiff's Title VII claims against SLU, dismissing plaintiff's § 1983 claims against O'Hara and Moffett brought against them in their official capacities, and granting defendants' motion for a more definite statement pursuant to Fed.R.Civ.P. 7 and Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995). Pursuant to that order, the Court deferred a decision on defendants' motion to dismiss on the basis of qualified immunity pending plaintiff's submission of a more definite statement. On August 3, 2004, plaintiff timely filed a supplemental and amending complaint pursuant to this Court's order.
Rec. Doc. No. 15.
Rec. Doc. No. 20, supplemental and amending complaint ("Supp. Comp.").
Plaintiff is a Jewish female who was hired by SLU on July 1, 1997, to fill the position of Dean of Student Affairs at Southeastern Louisiana University. During the time period relevant to plaintiff's claims, O'Hara was plaintiff's immediate supervisor. During the same time period, Moffett was the SLU Provost.
Id. at ¶ 4.
Id. at ¶ 7.
Id. at ¶ 9.
Plaintiff's complaint alleges an ongoing pattern of conduct from September, 1998, through December, 2002, whereby her attempts to report and investigate allegations of sexual abuse and harassment of students and other employees were consistently ignored and/or actively thwarted by O'Hara and Moffett. For example, plaintiff alleges that in February, 2001, a third in a series of sexual assaults occurred on the SLU campus. The alleged assault was reported to O'Hara while plaintiff was on maternity leave, but O'Hara allegedly failed to initiate an investigation into the assault. On April 8, 2001, plaintiff was contacted by law enforcement and advised that the alleged female victim of the February, 2001, assault committed suicide. When plaintiff contacted O'Hara, she alleges that he admitted that he had been aware of the assault, but he had taken no action with regard to the incident.
Id. at ¶¶ 9-34. Plaintiff does not allege that she personally was ever sexually harassed or abused by anyone.
The complaint and supplemental complaint contain factually specific allegations regarding numerous instances of sexual abuse and sexual harassment occurring on the SLU campus and plaintiff's efforts to address those occurrences with O'Hara and Moffett. A sampling of plaintiff's allegations suffice to demonstrate that her complaint is sufficiently particularized.
Comp., ¶ 14.
Id., ¶ 15.
According to her complaint, plaintiff began an investigation into the February, 2001, assault. Plaintiff asserts that upon the initiation of the investigation, O'Hare and Moffett advised her that she was not allowed to bring any university charges against the alleged assailant, that she should not investigate the matter, and that she was not allowed to take any action against a certain fraternity alleged to have been involved in the assault. Plaintiff alleges that when she advised O'Hare and Moffett that the fraternity involved in the February, 2001, incident was the same fraternity involved in a prior sexual assault, O'Hara and Moffett directly threatened plaintiff with termination of her employment if she pursued further investigation into the matter. According to plaintiff, O'Hara and Moffett advised her that she should not speak to anyone regarding the investigation or the fraternity link between the sexual assaults in 1998 and 2001 because SLU was "bringing back football and that the fraternities [were] needed to support football."
Id., ¶ 16.
Id., ¶ 16.
In the spring of 2001, after having received additional information pertaining to the fraternity's involvement in the alleged sexual assault, plaintiff alleges that she again approached O'Hare and Moffett to discuss moving forward with formal charges against the alleged perpetrator and the fraternity which charges she contends were required to be filed pursuant to SLU policy and federal law. She alleges that defendants again chastised her for continuing her investigation into the incident. Plaintiff alleges that O'Hara and Moffett overrode her recommendation of suspension for the fraternity alleged to have been involved and, instead, O'Hara and Moffett placed the fraternity on probation and dropped the university charges against the alleged perpetrator. When the plaintiff protested these actions, she asserts that the defendants again threatened to terminate her if she spoke about the alleged assaults and the fraternity's involvement in those assaults.
Supp. Comp., ¶ 16(c).
Plaintiff alleges that on August 19, 2002, she advised O'Hara that the university could be fined for failing to investigate the February, 2001, sexual assault. On August 20, 2001, she requested a formal meeting with O'Hara and Moffett in order to address their alleged refusal to pursue a resolution to the assaults and other instances of sexual harassment, and that request was denied. On August 21, 2002, plaintiff asserts that O'Hara and Moffett removed her from supervising the counseling center which receives complaints pertaining to sexual assaults. Over the course of the next month, plaintiff alleges that she repeatedly advised O'Hara and Moffett that the university's failure to properly handle complaints of sexual assault was in violation of the law.
Supp. Comp., ¶ 21a.
See id., ¶¶ 22a, 27a.
Plaintiff also alleges that in the fall of 2001, O'Hara and Moffett instructed her to change the process for electing the homecoming court because the homecoming court was becoming "too dark." She alleges that when she refused to change the process, O'Hara and Moffett approached one of her subordinates and requested that certain changes be made to the election process. After receiving complaints that the changes in the election process were racially discriminatory, plaintiff alleges that she reported such complaints to O'Hara and Moffett. Upon learning of the complaints, plaintiff alleges that O'Hara and Moffett advised her not to take any action with respect to the complaints, that they would handle changing the process to "insure less black participation," and that she "had better leave the situation alone or else."
Comp., ¶ 17.
Supp. Comp., ¶ 17a.
According to plaintiff, on October 2, 2002, O'Hara informed her that her position as Dean of Student Affairs would no longer exist at SLU and that she would be terminated effective January 6, 2003. Plaintiff asserts that O'Hara and Moffett advised her that they had decided to create a new position, the Assistant to the Vice President of Student Affairs, and that the person hired to fill that position would assume all of the duties previously assigned to plaintiff in her role as the Dean of Student Affairs.
Id. at ¶ 28.
See Supp. Comp., ¶ 28a. Additionally, plaintiff alleges that various employees, including her prior supervisor, made derogatory statements with respect to her religion and that SLU had excluded representation of the Jewish faith in university activities and student groups. However, plaintiff's allegations pertaining to religious discrimination and retaliation for her reports of religious discrimination are directed primarily at SLU and appear to be alleged in support of her Title VII religious discrimination and retaliation claim against the university. See Comp., ¶¶ 29-34, 46. In plaintiff's amended and supplemental complaint, the allegations detailing O'Hara and Moffett's conduct center primarily around their alleged retaliation in response to her attempts to report sexual abuse and harassment on the SLU campus. See Supp. Comp., ¶ 17a, 21a, 22a, 28b. However, there are also particularized allegations that plaintiff reported instances of alleged racial and religious discrimination to O'Hare and Moffett. It is unclear whether plaintiff advances the latter category of allegations in support of her § 1983 claims against O'Hare and Moffett.
Plaintiff claims that O'Hara's and Moffett's harassment of her and their participation in her termination constitutes unlawful retaliation against her for her exercise of her First Amendment right to report sexual abuse, sexual harassment and other instances of unlawful discrimination occurring at SLU.
Id. at ¶¶ 35-44.
LAW AND ANALYSISI. Standard of Review on a 12(b)(6) Motion
A district court cannot dismiss a complaint, or any part of it, for failure to state a claim upon which relief can be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). This Court will not look beyond the factual allegations in the pleadings to determine whether relief should be granted. See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In assessing the complaint, a court must accept all well-pleaded facts in the complaint as true and liberally construe all factual allegations in the light most favorable to the plaintiff. Spivey, 197 F.3d at 774; Lowry v. Texas AM University System, 117 F.3d 242, 247 (5th Cir. 1997). "However, `[i]n order to avoid dismissal for failure to state a claim, a plaintiff must plead specific facts, not mere conclusory allegations. . . .'" Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992) (quoting Elliott v. Foufas, 867 F.2d 877, 881 (5th Cir. 1989)) (alteration in original). "`[C]onclusory allegations and unwarranted deductions of fact are not admitted as true' by a motion to dismiss." Id. (quoting Associated Builders, Inc. v. Alabama Power Co., 505 F.2d 97, 100 (5th Cir. 1994)). Moreover, "`legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss.'" Blackburn, 42 F.3d at 931 (quoting Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993)). "[T]he complaint must contain either direct allegations on every material point necessary to sustain a recovery . . . or contain allegations from which an inference fairly may be drawn that evidence on these material points will be introduced at trial." Campbell v. City of San Antonio, 43 F.3d 973, 975 (5th Cir. 1995) (internal quotation and citation omitted).
II. The Qualified Immunity Doctrine
In Harlow v. Fitzgerald, the United States Supreme Court established that "government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). When a defendant invokes qualified immunity, the burden is on the plaintiff to demonstrate the inapplicability of the defense. McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002) (citation omitted). Because qualified immunity constitutes an immunity from a lawsuit, rather than a mere defense to liability, the defense is intended to give public officials immunity from disruptive and burdensome pretrial matters such as discovery. Id. Therefore, adjudication of qualified immunity claims should occur "`at the earliest possible state in litigation.'" Id. (quoting Hunter v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 536, 116 L.Ed.2d 589 (1991). However, the Fifth Circuit has explained:
"[T]he legally relevant factors bearing upon the Harlow question will be different on summary judgment than on an earlier motion to dismiss." Behrens v. Pelletier, 516 U.S. 299, 309, 116 S.Ct. 834, 133 L.Ed.2d 773 (1996). At the earlier stage, "it is the defendant's conduct as alleged in the complaint that is scrutinized for `objective legal reasonableness.'" Id. "On summary judgment, however, the plaintiff can no longer rest on the pleadings . . . and the court looks to the evidence before it (in the light most favorable to the plaintiff) when conducting the Harlow inquiry." Id.McClendon 305 F.3d at 323 (emphasis in original).
A claim of qualified immunity requires this Court to engage in a well-established two-step inquiry. Simmons v. City of Paris, Texas, 378 F.3d 476, 479 (5th Cir. 2004); Sanchez v. Swyden, 139 F.3d 464, 466 (5th Cir. 1998); Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir. 1998). As stated by the Fifth Circuit:
First, we must determine whether a public official's conduct deprived a § 1983 plaintiff of a "clearly established" constitutional or statutory right. The constitutional right must be sufficiently clear to put a reasonable [public official] on notice that certain conduct violates that right. The Supreme Court has warned against vague or general assertions of constitutional rights and has required a § 1983 plaintiff to state with specificity the constitutional right that has been allegedly violated — otherwise, liability could be imposed in every case.
. . .
Second, a public official may successfully assert the defense of qualified immunity even though the official violates a person's civil rights, provided the official's conduct was objectively reasonable. Whether an official's conduct is objectively reasonable depends upon the circumstances confronting the official as well as clearly established law in effect at the time of the official's actions. The subjective intent of the public official is irrelevant, and the official's knowledge of the relevant law need not rise to the level of a constitutional scholar.Sanchez, 139 F.3d at 466-67 (alteration supplied).
In order to state a First Amendment retaliation claim, a public employee must allege facts supporting four elements: (1) an adverse employment action; (2) speech involving a matter of public concern; (3) the employee's interest in speaking outweighs the employer's interest in efficiency; and (4) the speech must have precipitated the adverse employment action. Kennedy v. Tangipahoa Parish Library Bd. of Control, 224 F.3d 359, 366 (5th Cir. 2000) (citing Teague v. City of Flower Mound, Texas, 179 F.3d 377, 380 (5th Cir. 1999)).
The Fifth Circuit has also set forth the elements of a public employee's First Amendment retaliation claim in a three-part test:
First, the relevant speech must involve a matter of public concern. Second, her interest in commenting on the matter of public concern must outweigh her employer's interest in promoting efficiency. And third, her protected speech must have motivated her public employer's decision to fire her.Warnock v. Pecos County, Texas, 116 F.3d 776, 780 (5th Cir. 1997) (citing Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687, 75 L. Ed.2d 708 (1983) (citation omitted); Wallace v. Texas Tech Univ., 80 F.3d 1042, 1050 (5th Cir. 1996); Thompson v. City of Starkville, 901 F.2d 456, 460 (5th Cir. 1990)).
With respect to the first step of the qualified immunity analysis, O'Hare and Moffett correctly concede that plaintiff has sufficiently alleged a violation of a clearly established First Amendment right, i.e., plaintiff's right as a public employee to report and protest to her employer, without fear of retaliation, instances of sexual abuse and harassment, racial discrimination, and religious discrimination on the SLU campus. See Ghivan v. Western Line Consolidated Sch. Dist., 439 U.S. 410, 415-16, 99 S.Ct. 693, 696-97, 58 L.Ed.2d 619 (1979) (holding that First Amendment protection applies when a public employee protests privately to her employer regarding allegedly racially discriminatory policies); Mandell v. County of Suffolk, 316 F.3d 368, 382-83 (2d Cir. 2003) (noting that the First Amendment protects public employee's speech criticizing a public employer's "systemic racism and anti-Semitism"); Wilson v. UT Health Center, 973 F.2d 1263, 1268-79 (5th Cir. 1992) (holding that a public employer's retaliation for an employee's reports of workplace sexual harassment to her superiors represents a violation of a clearly established right). Furthermore, plaintiff clearly possessed a First Amendment right to report sexual harassment and abuse "regardless of whether her reports also coincided with her job responsibilities." Id. at 1270; see also Warnock, 116 F.3d at 782 (noting that a county auditor had a stake as an individual citizen in reporting the fiscal irresponsibility of the county notwithstanding that such reports coincided with her job duties as an auditor).
Subsequent to Ghivan, the Supreme Court clarified that "[a]lthough the subject-matter of Mrs. Ghivan's statements were not the issue before the Court, it is clear that her statements concerning the school district's allegedly racially discriminatory policies involved a matter of public concern" and, therefore, such statements were protected by the First Amendment. Connick v. Myers, 461 U.S. 138, 146, 103 S. Ct. 1684, 1689-90, 75 L. Ed.2d 708 (1983).
With respect to the second prong of the qualified immunity analysis, the question for this Court is "whether the defendants' conduct was objectively reasonable in light of `clearly established' law at the time of the alleged violation." Kennedy, 224 F.3d at 377 (citations omitted). "Clearly established law will not defeat qualified immunity if `an objectively reasonable view of the facts' might lead an official not to realize that he was breaking the law." Warnock, 116 F.3d at 776.
Defendants contend that their conduct was not objectively unreasonable in light of plaintiff's clearly established rights because plaintiff's protected speech did not in fact motivate them to terminate her and because, as an employee at will, plaintiff had no expectation of continued employment. Defendants assert that they possessed an unqualified right, with the consent of the Board, to eliminate the position of Dean of Student Affairs based upon organizational changes occurring at SLU.
Defendants' attempt to raise a fact issue with respect to causation is misplaced. At this stage of the litigation, "it is the defendant's conduct as alleged in the complaint that is scrutinized for `objective legal reasonableness.'" McClendon, 305 F.3d at 323(emphasis in original) (internal quotation and citation omitted). Additionally, this Court may not look beyond the pleadings and must accept the facts alleged in the complaint as true. See Spivey, 197 F.3d at 774. Furthermore, a public official's subjective intent is irrelevant to the question of whether the official's conduct is "objectively reasonable" for purposes of the qualified immunity analysis. Sanchez, 139 F.3d at 467. As the Fifth Circuit has noted, whether an employee's speech on a matter of public concern was a "substantial or motivating factor in an employer's decision to take action against the employee is a question of fact" that will often preclude a summary disposition in a First Amendment retaliation case. See Click v. Copeland, 970 F.2d 106, 113 (5th Cir. 1992) (citing Brawner v. City of Richardson, Tex., 855 F.2d 187, 193 (5th Cir. 1988)).
To the extent that defendants are challenging the sufficiency of plaintiff's factual allegations with respect to the issue of causation, the Court finds that plaintiff's complaint and supplemental complaint are sufficiently particularized to support an inference that her speech was a "substantial or motivating factor" in O'Hare's and Moffett's decision to eliminate her position. In Warnock, 116 F.3d at 781, the Fifth Circuit held that a county auditor's factually detailed allegations pertaining to fiscal wrongdoing and violations of the law by county officials and her efforts to report such wrongdoing to county judges were sufficient to raise an inference that her protected speech was a substantial or motivating factor in the judges' subsequent decision not to re-appoint her. Id. The court noted that the resolution of the causation issue "may turn on whether the district judges had reason to prefer a less inquisitive auditor" and held that plaintiff's complaint could not be dismissed because, inter alia, it could be inferred that the judges' decision may have been motivated by a preference for a "less aggressive advocate for county fiscal responsibility." Id.
In light of defendants' concession that plaintiff adequately alleged the elements of a violation of a clearly established First Amendment right, defendant's argument with respect to causation in support of their qualified immunity defense directly contradicts that concession. Nevertheless, the Court will address the argument as if it were a challenge to whether the complaint alleges sufficient facts from which an essential element of plaintiff's cause of action may be inferred.
The Warnock court's reasoning applies in this case. Plaintiff has alleged repeated attempts to bring to light alleged violations of the law at SLU by reporting such alleged violations to O'Hare and Moffett. Moreover, plaintiff has alleged that O'Hare and Moffett repeatedly warned her to cease her investigations of numerous sexual assaults occurring on campus and her speech pertaining to those assaults because they were concerned about the potential effect such investigations could have on SLU's effort to revitalize its football program. According to plaintiff's complaint, her repeated protests intensified in the months immediately prior to the October, 2001, meeting, at which O'Hare and Moffett informed plaintiff that they had decided to eliminate her position and assign all of her job responsibilities as Dean of Student Affairs to the person in the newly-created position of Assistant to the Vice President of Student Affairs. The Court finds that if, upon discovery, plaintiff can support her allegations with evidence, such evidence would circumstantially support an inference that O'Hare and Moffett may have preferred a "less aggressive" or "less inquisitive" Dean of Student Affairs and that such a preference was a motivating factor in their decision to eliminate her position. See Warnock, 116 F.3d at 781; see also Fowler v. Smith, 68 F.3d 124, 127 (5th Cir. 1995) ("[D]irect evidence in proving illegitimate intent is not required to avoid summary judgment in unconstitutional retaliations claims; circumstantial evidence will suffice.") (citing Tompkins v. Vickers, 26 F.3d 603, 608-09 (5th Cir. 1994)). Furthermore, although public employers "undoubtedly have broad authority and discretion to discipline employees whose speech impairs the smooth and efficient operation of government offices," Kennedy, 224 F.3d at 377, the law at the time O'Hare and Moffett made their decision to eliminate the Dean of Student Affairs was clearly established that "public officials must `engage in McBee-Pickering-Connick balancing before taking disciplinary action." Warnock, 116 F.3d at 782; see also Kennedy, 224 F.3d at 377. As noted by the Fifth Circuit:
The McBee-Pickering-Connick balancing test considers "whether [a public employee's] speech (1) was likely to generate controversy and disruption, (2) impeded the department's general performance and operation, and (3) affected working relationships necessary to the department's proper functioning." Kennedy, 224 F.3d at 378.
This test requires full consideration of the government's interest in the effective and efficient fulfillment of its responsibilities to the public, but nevertheless remains the minimum a government employer must do before deciding to discipline an employee for speaking on a matter of public concern.Kennedy 224 F.3d at 377.
Defendants have made no argument that plaintiff's protected speech disrupted the "effective and efficient fulfillment of its responsibilities to the public," id., nor do the facts as alleged in the complaint create any inference that plaintiff's speech caused any such disruption. At this stage of the proceedings, this Court cannot conclude that the university's interest in effective and efficient fulfillment of its responsibilities to the public outweighed plaintiff's clearly established right to speak on matters of public concern. Absent any facts or argument to suggest that O'Hare and Moffett engaged in any balancing of SLU's interest in efficient functioning against plaintiff's interest in reporting sexual assaults and harassment as well as instances of alleged racial and religious discrimination, defendants' argument with respect to their actual motivation in eliminating plaintiff's position, "while important for the question of causation, is fatal to [their] claim of qualified immunity." Click v. Copeland, 970 F.2d 106, 112-13 (5th Cir. 1992) (rejecting a claim of qualified immunity when McBee-Pickering-Connick balancing favored plaintiffs and defendants had argued only that their decision to fire plaintiff was motivated solely by personnel changes occurring at a public workplace); see also Kennedy, 224 F.3d at 378-79 (holding that fact issues pertaining to the McBee-Pickering-Connick balancing test preclude summary judgment on the issue of whether a public employer's decision to terminate plaintiff was "objectively reasonable").
The Court also finds unpersuasive defendant's argument that their conduct was objectively reasonable because the university possessed an unqualified right to eliminate any position for administrative reasons and because plaintiff, as an employee at will, did not have any expectation of continued employment. At the time O'Hare and Moffett allegedly made the decision to eliminate plaintiff's position, the law was clearly established that the precise form of a "termination," whether it be by firing, failure to re-hire, or declining to re-appoint, is immaterial to the question of whether a public employee has been impermissibly terminated in retaliation for engaging in speech protected by the First Amendment. See Warnock, 116 F.3d at 779 n. 1 (citing cases for the proposition that for purposes of assessing a First Amendment retaliation claim, "there is no difference between firing and declining to re-appoint"); see; McBee v. Jim Hogg County, 730 F.2d 1009, 1015 (5th Cir. 1984) (en banc) ("[T]he fact that the deputies were terminated by a `failure to rehire' rather than a `dismissal' is irrelevant to the question of whether they were impermissibly terminated for exercising First Amendment rights." (footnote omitted)). Moreover, the United States Supreme Court has consistently rejected the argument that First Amendment rights cannot be infringed when public employees are "employees at will with no legal entitlement to continued employment." Rutan v. Republican Party of Ill., 497 U.S. 62, 72, 110 S. Ct. 2729, 2735, 111 L. Ed.2d 52 (1990); cf. Branti v. Finkel, 445 U.S. 507, 512 n. 6, 100 S. Ct. 1287, 1291 n. 6, 63 L. Ed.2d 574 (1980) ("[T]he lack of a reasonable expectation of continued employment is not sufficient to justify a dismissal based solely on an employee's private political beliefs.") (citing Elrod v. Burns, 427 U.S. 347, 360 n. 13, 96 S.Ct. 2673, 2683 n. 13, 49 L. Ed.2d 547 (1976)). Elaborating on that principle, the Supreme Court stated:
In Perry [ v Sindermann, 408 U.S. 593, 596-598, 92 S.Ct. 2694, 2696-2697, 33 L. Ed.2d (1972)], we held explicitly that the plaintiff teacher's lack of a contractual or tenure right to re-employment was immaterial to his First Amendment claim. We explained the viability of his First Amendment claim as follows:
"For at least a quarter-century, this Court has made clear that even though a person has no `right' to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests — especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to `produce a result which [it] could not command directly.' Speiser v. Randall, 357 U.S. 513, 526 [ 78 S.Ct. 1332, 1342, 2 L.Ed.2d 1460 (1958)]. Such interference with constitutional rights is impermissible." Id., 408 U.S., at 597, 92 S.Ct., at 2697 (emphasis added).
Likewise, we find the assertion here that the employee petitioners and cross-respondents had no legal entitlement to promotion, transfer, or recall beside the point.Rutan, 497 U.S. at 72, 110 S.Ct. at 2735 — 2736.
Although Rutan addressed only political patronage, the Fifth Circuit has applied it to cases "involving public employer retaliation for employees' exercise of their right of free speech." Brady v. Fort Bend County, 145 F.3d 691, 703 (5th Cir. 1998) (citing Pierce v. Texas Dep't of Criminal Justice, Institutional Div., 37 F.3d 1146, 1149-50 (5th Cir. 1994)); Click, 970 F.2d at 110-11 (5th Cir. 1992)).
As noted, plaintiff's complaint and supplemental complaint adequately allege facts that, if proven, would support a finding that plaintiff's protected speech was a "substantial or motivating factor" in their decision to eliminate the position of Dean of Student Affairs. Additionally, plaintiff alleges that her position was not eliminated, but merely renamed and subsequently filled by a less qualified non-Jewish female. Viewing the factual allegations in plaintiff's complaints in the light most favorable to plaintiff, the Court concludes that at the time O'Hare and Moffett allegedly made the decision to eliminate the position of Dean of Student Affairs, a reasonable public official would have known that the elimination of plaintiff's job in response to her protected speech would violate the law notwithstanding that plaintiff was an employee at will.
Supp. Comp., ¶ 28a.
Although none of the cases cited involved the precise factual scenario presented in this case, i.e., the elimination and re-designation of a set of particular job duties motivated by a public employee's protected speech, it was undoubtedly clearly established that the precise form of an employment action does not, in and of itself, preclude a First Amendment violation. As noted by the Fifth Circuit:
Qualified immunity should not be denied unless the law is clear in the more particularized sense that reasonable officials should be "on notice that their conduct is unlawful." Saucier v. Katz, 533 U.S. 194, 206, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The central concept is that of "fair warning": The law can be clearly established "despite notable factual distinctions between the precedents relied on and the cases then before the Court, so long as the prior decisions gave reasonable warning that the conduct then at issue violated constitutional rights." Hope [ v. Pelzer, 536 U.S. 730, 740, 122 S.Ct. 2508, 153 L. Ed.2d 666] (internal quotation marks omitted).Kinney v. Weaver, 367 F.3d 337, 350 (5th Cir. 2004).
The Court holds that, taking all of plaintiff's allegations as true, plaintiff has adequately plead an objectively unreasonable violation of plaintiff's clearly established First Amendment rights. Such allegations, if true, would defeat the defense of qualified immunity. In 2001, a reasonable public official would have known that a public employee's position could not be eliminated because she attempted to report unlawful discrimination. Therefore, defendant's claim of qualified immunity cannot be sustained at this stage of the proceedings.
Accordingly, and for the above and foregoing reasons,
IT IS ORDERED that defendants' motion to dismiss plaintiff's individual capacity claims brought pursuant to 42 U.S.C. § 1983 against defendants, Dr. Brad O'Hara and Dr. Randy Moffett, is DENIED.