Opinion
A-20-CV-1081-RP
01-10-2023
JASON DUSTERHOFT, Plaintiff, v. CITY OF AUSTIN, and BRIAN MANLEY, Individually and in his Official Capacity, and JUSTIN NEWSOM, Individually and in his Official Capacity, and TROY GAY, Individually and in his Official Capacity, Defendants.
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
MARK LANE UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE:
Before the court is Defendants' Rule 12(c) Motion to Dismiss (Dkt. #40). Having considered the parties' written submissions, the pleadings, the relevant case law, as well as the entire case file, the undersigned submits the following Report and Recommendation to the District Court.
The motion was referred by United States District Judge Robert Pitman to the undersigned for a Report and Recommendation as to the merits pursuant to 28 U.S.C. § 636, Rule 72 of the Federal Rules of Civil Procedure, and Rule 1 of Appendix C of the Local Rules of the United States District Court for the Western District of Texas.
I. Background
The following factual recitation is taken directly from the Second Amended Original Complaint, Dkt. #24 (SAC), and all well-pleaded facts are accepted as true at this stage of the case.
Jason Dusterhoft brings suit claiming he was terminated from his role within the Austin Police Department in retaliation for exercising his First Amendment rights to criticize the Department. Dusterhoft pleads that on July 14, 2017, he met with then Austin Police Chief Manley and Assistant City Manager (“ACM”) Arellano in which Manley informed Dusterhoft he was being demoted for “[t]wo non policy issues.” Dkt. #24 (SAC) at ¶ 4.3. “Dusterhoft then chose to speak up to advise both Chief Manley and ACM Arellano in [sic] what he believed were numerous criminal and serious policy violations being committed by Austin police officers and Chief Manley himself.” Id. Dusterhoft contends that ACM Arellano was outside his chain of command and therefore he was speaking as a private citizen about matters of public concern. Id. ¶¶ 4.16, 5.4. Dusterhoft was then asked to leave the room so Chief Manley and ACM Arellano could speak. Id. ¶ 4.22. When he returned, he was told he was not going to be demoted. Id. However, three days later Chief Manley informed him he had changed his mind and demoted him as of July 30, 2017. Id. Dusterhoft was assigned to the patrol division, which is “not a sought after Commander position.” Id. ¶ 4.23. Dusterhoft contends this was done in retaliation for his reporting the alleged violations to ACM Arellano. Id.
The “two non policy issues” were not described in the Second Amended Original Complaint. Although it is not expressly pleaded, it appears Dusterhoft was being demoted from an Assistant Chief to a Commander. SAC at ¶ 4.22.
Dusterhoft alleges that Chief Manley “was finally given the opportunity to punish [him] further for blowing the whistle on him to the City” in August 2018 when Dusterhoft's ex-girlfriend made false domestic-violence accusations against him. Id. ¶ 4.38. Dusterhoft alleges that in December 2018 he was disciplined and terminated by Chief Manley, even though Chief Manley knew the allegations were false. Id. ¶ 4.41.
Dusterhoft challenged his termination through arbitration. Id. ¶ 4.42. Dusterhoft alleges that Newsom and Gay had relevant information about the investigation into him but were allowed to avoid compliance with subpoenas issued during the arbitration. Id. ¶¶ 4.44, 4.45, 4.50, 4.54.
Former Assistant Chief Justin Newsom was Dusterhoft's supervisor, and the Chief of Staff Troy Gay was next in Dusterhoft's chain of command. SAC at ¶ 4. 45
Dusterhoft asserts retaliation and conspiracy to retaliate claims against Chief Manley, Newsom, Gay, and the City of Austin, alleging they retaliated against him for exercising his First Amendment right to free speech. Id. ¶ 5.3. He contends that “[a]s a result of Plaintiff's protected speech, Defendants took an adverse employment action against Plaintiff, specifically, first demoting him, then terminating his employment and continuing to pursue his termination throughout the arbitration process and refus[ing] to comply with lawful subpoenas.” Id. ¶ 5.6. He also contends that because “Chief Manley is a final policymaker for the City of Austin and APD[,] therefore the City of Austin is liable for the actions of Chief Manley in retaliating against Dusterhoft.” Id. ¶ 5.9.
Defendants now move for judgment on the pleadings. Dusterhoft opposes on the merits and argues the motion is procedurally improper.
B. Procedural Issue
Dusterhoft argues this motion is procedurally improper under Federal Rule of Civil Procedure 12(g)(2) because Defendants previously filed a Rule 12(b)(6) motion. However, Rule 12(g)(2) does not prevent a party from filing a Rule 12(c) motion after filing a Rule 12(b)(6) motion. See FED. R. CIV. P. 12(H)(2)(B); Sparling v. Doyle, 2014 WL 12489990, at *4 (W.D. Tex. Oct. 23, 2014) (citing cases); see also Mandawala v. Baptist Sch. of Health Pros., 2022 WL 17835056, at *3 (W.D. Tex. Dec. 21, 2022); Mullenix v. Univ. of Tex. at Austin, 2021 WL 2172835, at *2 (W.D. Tex. March 30, 2021). Accordingly, the court will consider the motion.
II. Standard of Review
“A motion for judgment on the pleadings under Rule 12(c) is subject to the same standard as a motion to dismiss under Rule 12(b)(6).” Ackerson v. Bean Dredging LLC, 589 F.3d 196, 209 (5th Cir. 2009). When evaluating a motion to dismiss for failure to state a claim under Rule 12(b)(6) the complaint must be liberally construed in favor of the plaintiff and all facts pleaded therein must be taken as true. Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). Although Federal Rule of Civil Procedure 8 mandates only that a pleading contain a “short and plain statement of the claim showing that the pleader is entitled to relief,” this standard demands more than unadorned accusations, “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual enhancement.” Bell Atl. v. Twombly, 550 U.S. 544, 555-57 (2007). Rather, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Id. at 570. The Supreme Court has made clear this plausibility standard is not simply a “probability requirement,” but imposes a standard higher than “a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The standard is properly guided by “[t]wo working principles.” Id. First, although “a court must ‘accept as true all of the allegations contained in a complaint,' that tenet is inapplicable to legal conclusions” and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678. Second, “[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679. Thus, in considering a motion to dismiss, the court must initially identify pleadings that are no more than legal conclusions not entitled to the assumption of truth, then assume the veracity of well-pleaded factual allegations and determine whether those allegations plausibly give rise to an entitlement to relief. If not, “the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. at 679 (quoting Fed.R.Civ.P. 8(a)(2)).
III. Analysis
To state a First Amendment retaliation claim, Dusterhoft must allege facts sufficient to show: (1) he suffered an adverse employment action; (2) he spoke as a citizen on a matter of public concern; (3) his interest in the speech outweighed the government's interest in efficient provision of public services; and (4) the speech precipitated the adverse employment action suffered. Anderson v. Valdez, 913 F.3d 472, 476-77 (5th Cir. 2019). Whether a statement is made as an employee or as a citizen and whether the speech at issue is on a matter of public concern are both questions of law. Graziosi v. City of Greenville Miss., 775 F.3d 731, 736, 740 (5th Cir. 2015); Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 184 (5th Cir. 2005).
Defendants contend that Dusterhoft's claim fails because his speech at the 2017 meeting with Chief Manley and ACM Arellano was not as a private citizen on a matter of public concern and because he failed to sufficiently allege a causal connection between the speech and any adverse employment action.
A. Speech
Dusterhoft acknowledges that “an employee's communications that relate to his own job up the chain of command are not protected” and argues that his speech was protected because ACM Arellano was not in his chain of command. Dkt. #44 at 7-8. He relies on facts he pleaded that ACM Arellano is not in his chain of command. Id. at 9-12 (quoting SAC at ¶¶ 4.3, 4.14-.20). Dusterhoft's argument ignores that this issue is decided as a question of law.
The court first addresses whether Dusterhoft spoke as a citizen or as an employee. In this determination, courts consider whether the speech was within the ordinary scope of the plaintiff's job description and whether the plaintiff took his concerns to persons outside the workplace. Gibson v. Kirkpatrick, 838 F.3d 476, 482 (5th Cir. 2016). When public employees speak pursuant to their official duties, they are not speaking at citizens and their speech is not constitutionally protected. Harrison v. Lilly, 854 Fed.Appx. 554, 556 (5th Cir. 2021) (citing Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)). “Official duties” are tasks that employees are required to perform as part of their job responsibilities. Garcetti, 547 U.S. at 421-22. In determining whether a public employee's speech was within the scope of his official duties, courts consider whether a certain task is listed in a formal job description, whether the speech concerns the subject matter of employment, and whether the speech occurs inside the office. Id. at 420-21. Furthermore, the Fifth Circuit has found speech unprotected where the speech was not explicitly required under the employee's official duties but nonetheless is related to those duties or reflected “special knowledge” gleaned from their position. Harrison, 854 Fed.Appx. at 557 (citing cases).
Given their overlap, some courts collapse the questions of whether the speech was made in the plaintiff's role as employee or as a citizen with whether the speech involved a matter of public concern. Gibson v. Kirkpatrick, 838 F.3d 476, 481 n.1 (5th Cir. 2016). But see Harrison v. Lilly, 854 Fed.Appx. 554, 556 (5th Cir. 2021) (“As a threshold inquiry, we must determine whether the employee spoke as a private citizen or pursuant to her public job before asking whether the subject matter of the speech is a topic of public concern.”).
Dusterhoft argues he was actually prohibited from informing ACM Arellano of the matters he raised at the July 2017 meeting. But, the content of Dusterhoft's speech was primarily-if not entirely-information he learned through his role as an Assistant Chief. SAC at ¶¶ 4.4-.12. What he communicated to ACM Arellano was “special knowledge” he gained through his role. Id. Although the meeting took place at City Hall, ACM Arrellano's presence at the demotion meeting contradicts Dusterhoft's position that ACM Arellano is external to his chain of command. See Id. ¶¶ 4.3, 4.13. Additionally, the facts that ACM Arellano and Chief Manley sent Dusterhoft out the room after he made his statement and then (temporarily) rescinded Dusterhoft's demotion also contradict Dusterhoft's argument. See id. ¶¶ 4.3, 4.13. While it may be true that ACM Arellano is technically outside of Dusterhoft's chain of command, it is not practically true. Further, Dusterhoft alleged that he reported directly and only to Chief Manley, SAC at ¶ 4.14, but Chief Manley reported to ACM Arellano. Dkt. #40-1 (City of Austin organizational chart); Colonial Oaks Assisted Living Lafayette, L.L.C. v. Hannie Dev., Inc., 972 F.3d 684, 688 (5th Cir. 2020) (“[W]e may take judicial notice of matters of public record . . . when ruling upon a Rule 12(b)(6) motion.”). Accordingly, Dusterhoft was speaking as an employee at the July 2017 meeting.
Available online at: https://www.austintexas.gov/sites/default/files/files/Communications/COAOrgChart112020-FNL.pdf.
“Matters of public concern are those which can be ‘fairly considered as relating to any matter of political, social, or other concern to the community.'” Branton v. City of Dallas, 272 F.3d 730, 739 (5th Cir. 2001) (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)). In determining whether a plaintiff spoke primarily on a matter of public concern or on a matter of personal interest, a court must consider “the content, form, and context of a given statement, as revealed by the whole record.” Salge, 411 F.3d at 186 (citing Connick, 461 U.S. at 147-48). These factors “must be considered as a whole package, and [their] significance . . . will differ depending on the circumstances of the particular situation.” Moore v. City of Kilgore, 877 F.2d 364, 370 (5th Cir. 1989).
Dusterhoft's statements were made in the context of a demotion meeting and only after he had been informed of the demotion. SAC at ¶ 4.13. The content of Dusterhoft's speech was of a personal nature to Dusterhoft. The court acknowledges that malfeasance within a police department can be a matter of public concern, but in this instance Dusterhoft's speech specifically reflected poorly on Chief Manley, who had just informed Dusterhoft that he was being demoted. Finally, the form of the speech-a verbal retelling of Chief Manley's wrongdoings, without any documentary evidence, also suggests the speech was private in nature. Taken together, the content, form, and context of the speech strongly indicates the speech was not protected.
Accordingly, the undersigned finds Dusterhoft was speaking as a public employee-in a desperate effort to save his job-rather than as a private citizen on matters of public concern. As such, his speech was not constitutionally protected and all claims based on First Amendment retaliation fail.
B. All Other Issues
Defendants raise numerous other issues in their motion, some of which Dusterhoft did not respond to and waived. Although the court agrees with Defendants' other arguments, analysis of them is not needed because Dusterhoft has failed to state a constitutional violation as a matter of law. Accordingly, the undersigned will recommend Dusterhoft's claims be dismissed with prejudice and judgment be entered in Defendants' favor.
These include that limitations bar any claim based on the July 2017 demotion and that the domestic violence investigation of him and Defendants' behavior in arbitration are not actionable adverse employment actions.
IV. Recommendation
For the reasons given above, the undersigned RECOMMENDS that the District Court GRANT Defendants' Rule 12(c) Motion to Dismiss (Dkt. #40).
V. Objections
The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. See Battles v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996)(en banc).