Opinion
No C-03-3542 VRW.
February 14, 2005
ORDER
Before the court is defendants' motion for summary judgment. Doc #40. For the reasons that follow, the court GRANTS defendants' motion, thus adjudicating plaintiffs' claims for retrospective relief. The court sua sponte dismisses plaintiff's claims for prospective relief for lack of jurisdiction.
I
Plaintiffs Regina Rederford ("Rederford") and Robin Christy ("Christy") bring suit pursuant to 42 USC § 1983 and other statutes for violations of various putative rights in the course of the removal of a flyer they had posted around their office in the Oakland Community and Economic Development Agency (CEDA). The flyer, which promoted their unincorporated association, the Good News Employee Association (GNEA), called on readers to "Preserve Our Workplace With Integrity," and explained that GNEA "is a forum for people of Faith to express their views on contemporary issues of the day. With respect for the Natural Family, Marriage and Family values." Melaugh Decl (Doc #43) Ex D. Plaintiffs contend in their complaint (Doc #1) that the removal of this flyer violated their rights under the United States Constitution, the California Constitution and municipal law.
Named as defendants are Joyce Hicks ("Hicks"), who was a deputy executive director in CEDA, Robert Bobb ("Bobb"), who was Oakland's City Manager, and the City of Oakland (the "City") itself. Defendants filed a motion pursuant to FRCP 12(b)(6) to dismiss plaintiff's complaint for failure to state a claim (Doc #13) and a motion pursuant to FRCP 41(b) to dismiss the case for failure to prosecute (Doc #25). By order dated March 16, 2004, the court granted both motions in part. Doc #32. Remaining in the case is a claim against Hicks and Bobb, in both their individual and official capacities, for violation of plaintiffs' right to freedom of speech under the First Amendment to the United States Constitution. Plaintiffs seek both retrospective and prospective relief. Defendants now move for summary judgment. Doc #40.
The facts are not in material dispute. GNEA's stated purposes are "[t]o celebrate our Faith and Liberties by preserving the integrity of the Natural Family, Marriage and Family values"; "[t]o provide a forum for people of faith to express their views on contemporary issues of the day"; and "[t]o oppose all views that seek to redefine the Natural Family and Marriage." Melaugh Decl (Doc #43) Ex D. In its "Statement of Faith," GNEA explains that "we believe the Natural Family is defined as a man and a women their children by birth or adoption, or the surviving remnant thereof (including single parents)"; that "[w]e believe Marriage is defined by a union between a man and a woman according to California state law"; and that "[w]e believe in Family Values that promote abstinence, marriage, fidelity in marriage and devotion to our children." Id. Plaintiffs' deposition testimony confirms the anti-homosexual import of their definitions of "natural family," "marriage" and the meaning of the flyer's exhortation to "preserve our workplace with integrity." See, e g, Melaugh Decl (Doc #43) Ex A (Rederford Depo) at 8:8-22, 9:3-6, 37:1-41:1, 48:25-49:10, 135:22-136:13, 146:22-147:6, 194:1-4; id Ex C (Christy Depo) at 19:1-19, 24:14-21, 38:2-18.
The flyer came to the attention of Judith Jennings ("Jennings"), a lesbian employee in CEDA who used the copy machine near which the flyer was posted. Jennings Decl (Doc #41) ¶ 6; Melaugh Decl (Doc #43) Ex A (Rederford Depo) at 130:21-131:6. Jennings felt "targeted" and "excluded." Jennings Decl (Doc #41) ¶ 7. Shortly after seeing the flyer, Jennings spoke with Rederford, whose name and phone number (along with Christy's) appeared on the flyer. Id ¶ 8. This conversation left Jennings "feeling anxious about working in the same office as [plaintiffs]" and she "could not believe that [she] worked with someone who condemned homosexuals like [her] so much." Id ¶ 9. Jennings and Rederford worked near one another and spoke with some frequency. Id ¶¶ 3, 8, 11; Melaugh Decl (Doc #43) Ex A (Rederford Depo) at 75:15-25. After the conversation, Jennings was "scared," did not talk to Rederford any more and their "relationship really changed." Id at 78:8-17, 130:24-131:6; Jennings Decl (Doc #41) ¶ 9. Jennings decided to complain to the city attorney's office. Id ¶ 10. She complained not only about the flyer, but also about earlier episodes of distribution of anti-homosexual materials, at least one of which involved plaintiffs. Id ¶¶ 4-5.
Jennings' complaint was investigated by Joanne Braddock ("Braddock"), who was the administrative services manager in CEDA, and Calvin Wong ("Wong"), who was the director of building services in CEDA. Braddock Decl (Doc #4) ¶¶ 2-3. They interviewed Jennings, who seemed "upset and distraught" and "visibly nervous and shaken," id ¶ 3, and Braddock discovered the flyer posted in several locations other than near the copier, id ¶ 4. "After the investigation was complete, [Braddock] received an order from the City Attorney's office to take the * * * flyer down. The Plaintiffs' flyer violated AI 71." Id ¶ 5. "AI 71" is an abbreviation for "Administrative Instruction 71," a personnel policy promulgated by the City Manager of Oakland, entitled "Equal Employment Opportunity/Anti-Discrimination/Non-Harassment Policy and Complaint Procedure." Lively Decl (Doc #52) Ex 1.13.
Plaintiffs acknowledge that they have alternative channels open to them to communicate their message. For example, Rederford acknowledges that she was not restricted from expressing her views on marriage or gay rights outside the workplace, over lunch or on a break. Melaugh Decl (Doc #43) Ex A (Rederford Depo) at 141:5-18. Nor were plaintiffs prohibited from organizing GNEA, and Rederford acknowledges that she was told "she could announce [her] group" through the City's e-mail system if she removed "verbiage that could be offensive to gay people" from her announcement. Id at 141:19-142:21. See also Melaugh Decl (Doc #43) Ex C (Christy Depo) at 27:10-21.
Defendants' roles in the removal of the flyer were minmal. Bobb, as City Manager, was the final authority responsible for approving administrative instructions, including AI 71. Melaugh Decl (Doc #43) Ex E (Bobb Depo) at 10:5-20. Bobb does not know and has never met plaintiffs. Id Ex A (Rederford Depo) at 72:24-25; id Ex C (Christy Depo) at 26:18-19; id Ex E (Bobb Depo) at 14:9-16. There is no evidence that Bobb participated in removal of the flyer.
Hicks may have spoken once to Rederford in casual conversation; she does not know Christy and Christy does not know her. Id Ex A (Rederford Depo) at 71:6-72:2; id Ex C (Christy Depo) at 26:22-23; id Ex F (Hicks Depo) at 8:20-25. Hicks believes that Wong ordered that the flyer be taken down, id at 35:8-25; Hicks does not recall that she ordered that the flyer be taken down, id at 36:1-2; and plaintiffs provide no evidence to contradict this account. Indeed, it appears that the flyer was removed on January 3, 2003, and Hicks, who was on vacation at the time, did not return to the office until Monday, January 6, 2003. Id at 168:21-169:5. Although as a matter of heirarchy, Braddock and Wong reported to Hicks, who in turn reported to Bobb, there is no evidence that Bobb or Hicks directed or influenced Braddock's, Wong's or the City Attorney's actions or decisions with respect to taking the flyer down.
There were some conversations following removal of the flyer, but there is no evidence of any formal appeal by plaintiffs of Braddock and Wong's removal of the flyer. Hicks participated in a January 17, 2003, meeting (along with a representative from the city attorney's office) to discuss Jennings' feelings of harassment due to her sexual orientation, but Hicks declined to discuss at her deposition the contents of that meeting on the ground of attorney-client privilege, and plaintiffs have not interposed a formal objection to that claim of privilege. Hicks also discussed the flyer "with regard to Administrative Instruction 71" with Wong "[s]ometime in January of 2003." In late February 2003, Hicks transmitted a copy of AI 71 to all CEDA employees accompanied by a memorandum that described "recent * * * incidents" where "flyers were placed in public view which contained statements of a homophobic nature and were determined to promote sexual orientation based harassment," and noted that violation of AI 71 could result in "discipline up to and including termination." Compl (Doc #1) Ex 1; Melaugh Decl (Doc #43) Ex F (Hicks Depo) at 59-63 (discussing memo).
II
In reviewing a summary judgment motion, the court must determine whether genuine issues of material fact exist, resolving any doubt in favor of the party opposing the motion. "[S]ummary judgment will not lie if the dispute about a material fact is `genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party."Anderson v. Liberty Lobby, 477 US 242, 248 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. And the burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp v. Catrett, 477 US 317, 322-23 (1986). When the moving party has the burden of proof on an issue, the party's showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party. Calderone v. United States, 799 F2d 254, 258-59 (6th Cir 1986). Summary judgment is granted only if the moving party is entitled to judgment as a matter of law. FRCP 56(c).
The nonmoving party may not simply rely on the pleadings, however, but must produce significant probative evidence supporting its claim that a genuine issue of material fact exists. TW Elec Serv v. Pacific Elec Contractors Ass'n, 809 F2d 626, 630 (9th Cir 1987). The evidence presented by the nonmoving party "is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 US at 255. "[T]he judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id at 249.
The evidence presented by both parties must be admissible. FRCP 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. Thornhill Publishing Co, Inc v. GTE Corp, 594 F2d 730, 738 (9th Cir 1979). Hearsay statements found in affidavits are inadmissible. Japan Telecom, Inc v. Japan Telecom America Inc, 287 F3d 866, 875 n1 (9th Cir 2004).
III
Plaintiffs' complaint prays specifically for prospective declaratory and injunctive relief; it does not specifically seek damages. But the court assumes that plaintiffs also seek retrospective relief, for they seek a declaration "that the actions of Defendants in refusing to grant Plaintiffs the right to * * * inform * * * on private employee time are invalid and unconstitutional," Compl (Doc #1) at 12, and a major heading in their opposition to defendants' motion for summary judgment is "defendants are not immune from damages in this case." Pls Opp (Doc #46) at 17:2. Accordingly, the court will consider whether retrospective relief is available as against the named defendants. Defendants are named in both their individual and official capacities. As this distinction is significant for awards of retrospective relief, the court will consider individual capacity liability first and then turn to official capacity liability.
A
"Government officials sued in their individual capacities under § 1983 may raise the affirmative defense of qualified immunity * * *. Qualified immunity generally protects government officials in the course of performing the discretionary duties of their offices." Butler v. Elle, 281 F3d 1014, 1021 (9th Cir 2002) (citing Harlow v. Fitzgerald, 457 US 800, 818 (1982)). The question of qualified immunity is a question of law to be determined by the trial court. Siegert v. Gilley, 500 US 226 (1991). "The first step in evaluating a qualified immunity defense is to determine whether the plaintiff has shown that the action complained of constituted a violation of his or her constitutional rights."Butler, 281 F3d at 1021 (citing Sonoda v. Cabrera, 255 F3d 1035, 1040 (9th Cir 2001)). If the court is satisfied that a constitutional violation occurred, "the second step is to determine: (1) whether the violated right was clearly established, and (2) whether a reasonable public official could have believed that the particular conduct at issue was lawful." Id.
The court need not reach the second prong of the qualified immunity inquiry because, even assuming that someone violated plaintiffs' First Amendment rights, Hicks and Bobb — the only named defendants in this suit — are not responsible for such a violation. Supervisory officials are not liable under 42 USC § 1983 for the actions of subordinates under any theory of vicarious liability. Hansen v. Black, 885 F2d 642, 645-46 (9th Cir 1989) (citing Pembauer v. City of Cincinnati, 475 US 469, 479 (1986)). "A supervisor may be liable if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." Id (citing Thompkins v. Belt, 828 F2d 298, 303-04 (5th Cir 1987). The former option is foreclosed because plaintiffs have come forward with no evidence establishing the personal involvement of Hicks or Bobb in the removal of the flyer. The latter option is the appropriate inquiry in an official capacity suit, and to this the court now turns.
B
As the Hansen court explained:
Supervisory liability exists even without overt personal participation in the offensive act if the supervisory officials implement a policy so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation.
Id (citing Thompkins, 828 F2d at 304) (internal quotation marks omitted). It is primarily on this "policymaker" theory of liability that plaintiffs rest their case. A suit against Hicks and Bobb in their official capacities as policymakers (which the court accepts that they are for purposes of this motion) is in effect a suit against the City, the municipality for which they make policy. See Hawaii v. Gordon, 373 US 57, 58 (1963).
In the seminal case establishing municipal liability under § 1983, the Supreme Court explained "it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell v. Dep't of Social Services, 436 US 658, 694 (1978). Though plaintiffs attempt artfully to argue around the rule that § 1983 does not recognize the common law tort doctrine of respondeat superior, see Pls Opp (Doc #46) at 18-20, the Supreme Court has repeatedly held that Monell "rejected the use of the doctrine of respondeat superior." City of Saint Louis v. Praprotnik, 485 US 112, 121 (1988).
Following Monell, the concept of policymaker liability was refined somewhat, and the court should at this point distinguish between two flavors of policymaker liability. There are, on the one hand, policies that are developed ex ante, approved by the lawmaking or other policymaking authority, and then applied prospectively. See, e g, Monell, 436 US at 660-61 ("The gravamen of the complaint was that the Board and the Department had as a matter of official policy compelled pregnant employees to take unpaid leaves of absence before such leaves were required for medical reasons."). On the other hand, there are suits in which the defendant, in his capacity as policymaker, has made a one-time decision — as, for example, when a plaintiff has sought redress through an appeal, which terminates with the policymaker's decision, cf Praprotnik, 485 US 112, 127 ("[W]hen a subordinate's decision is subject to review by the municipality's authorized policymakers, they have retained the authority to measure the official's conduct for conformance withtheir policies."), or when the policymaker made some other decision tailored to plaintiff's situation, see, e g, Pembauer, 475 US at 476-77 (rejecting a court of appeals decision that a "single, discrete decision" made by a prosecutor and sheriff "on * * * one occasion" was insufficient to establish official capacity liability).
This distinction is significant, because plaintiffs cannot rest their case on the Pembauer and Praprotnik line of cases: Bobb and Hicks had no involvement at the time of the flyer's removal, nor is there evidence that they later, at plaintiffs' urging, reviewed and approved the propriety of removing the flyer. The only policymaking action plaintiffs can point to is the promulgation of AI 71 as prospective policymaking. As a threshold matter, the court observes that Hicks does not seem to have had the authority to make policy like AI 71, and accordingly cannot be held liable as a policymaker. See Praprotnik, 485 US 139-40 (citing Pembauer, 475 US 481-83) (discussing a hypothetical official who is a policymaker with respect to some matters and not others). But the court will assume, arguendo, that Hicks and Bobb are both properly regarded as policymakers with respect to the promulgation of AI 71.
As the Hansen court explained, for a policy to be a violation of a plaintiff's constutional rights, it must be "so deficient that the policy itself is a repudiation of constitutional rights and is the moving force of the constitutional violation." 885 F2d at 646 (quoting Thompkins, 828 F2d at 304). This requirement was announced even in Monell, which noted that in that case "official policy" had been established "as the moving force of the constitutional violation." 436 US at 694. The Ninth Circuit has explained that "to be a moving force behind [an] injury, * * * the identified deficiency in the [policy must be] closely related to the ultimate injury. The plaintiff's burden is to establish that the injury would have been avoided" had the policy been different. Gibson v. County of Washoe, 290 F3d 1175, 1196 (9th Cir 2002) (internal quotation marks and citations omitted). This question of causation is a matter for the jury, see id, and may not be well-suited to resolution on summary judgment. Accordingly, the court will assume (for purposes of this motion only) that AI 71 bears the required nexus to the violation plaintiffs claim.
The question, then, is whether plaintiffs' rights were in fact violated. As the court discussed at length in its order on defendants' motion to dismiss, Doc #32, this is a case about speech by a government employee, and accordingly, it is controlled by Pickering v. Board of Education, 391 US 563 (1968), and its progeny. The court assumes familiarity with its prior order and the law discussed therein. The court concluded that the speech in question — i e, the message of the flyer — touches on a matter of public concern and was a substantial or motivating factor in the removal of the flyer. 3/16/04 Order at 20:16-22:18. Defendants do not dispute those conclusions and the court sees no reason to revisit them.
The court next concluded that the remaining issue in thePickering test — "whether defendants have [shown] that their interests as employers outweigh plaintiffs' interests in making the speech" — was "close," but, recognizing that the question was presented in the context of a motion to dismiss, "agree[d] with plaintiffs that defendants have not met their burden, at least at this stage of the proceedings." Id at 22:19-23:2. Now that the case has progressed to summary judgment, the court may undertake a better-informed analysis of this question of law. The court set out the legal standard in some detail in its prior order:
[Employee] speech [on a matter of public concern] must be analyzed by "the Pickering balance[, which] requires full consideration of the government's interest in the effective and efficient fulfillment of its responsibilities to the public." [Connick v. Myers, 461 US 138, 151 (1938)]. The Court, quoting Justice Powell's separate opinion in Arnett v. Kennedy, 416 US 134, 168 (1974), stated that:
[T]he Government, as an employer, must have wide discretion and control over the management of its personnel and internal affairs. This includes the prerogative to remove employees whose conduct hinders efficient operation and to do so with dispatch. Prolonged retention of a disruptive or otherwise unsatisfactory employee can adversely affect discipline and morale in the work place, foster disharmony, and ultimately impair the efficiency of an office or agency.
Connick, 461 US at 151. In evaluating the government's interest in preventing workplace disruption, the Court considered the impairment of "close working relationships," the "manner, time, and place in which [the message] is delivered" and whether the employee's speech "arises from an employment dispute concerning the * * * application of [office] policy to the speaker * * *." Id at 151-53. The Court also emphasized that the government employer did not need "to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action." Id at 152. Taking these factors into consideration, the Court concluded that Myers' interest in being able to ask the question regarding political pressure was outweighed by the government's considerable interest in proscribing behavior that "would disrupt the office, undermine [its] authority, and destroy close working relationships." Id at 154.
Subsequently, the Ninth Circuit has interpreted Pickering and Connick to require the governmental employee to show that: (1) her speech was on a matter of public concern and thus was constitutionally protected; and (2) that the speech in question was a "substantial or motivating factor" for the adverse employment action. Pool v. Vanrheen, 297 F3d 899, 906 (9th Cir 2002). If the employee fails to demonstrate that the speech addresses a matter of public concern, then the claim should be dismissed without further inquiry. See Moran v. State of Washington, 147 F3d 839, 846 (9th Cir 1998). Should the employee make the first two showings, the employer then must show that its "legitimate administrative interests" in promoting workplace efficiency outweigh the employee's interest in freedom of speech. Pool, 297 F3d at 906. The inquiry into the protected status of speech is one of law, not of fact. Id.
3/16/04 Order at 18:14-19:28 (some alterations in original).
On plaintiffs' side of the balance is their interest in speaking. This interest is slight, as the restriction placed on their speech under the facts at bar was quite limited: Plaintiffs were prohibited from posting a particular flyer on an office bulletin board. Plaintiffs themselves acknowledge that no restriction has been placed on their speech outside of work (by, for example, threatening them with termination if they speak outside the workplace). They further acknowledge that they can discuss their views with co-workers as they wish at appropriate times (at lunch, on a break).
Plaintiffs further acknowledge that they were told they would be permitted to broadcast the existence of their group, subject to certain editorial restrictions. There are in addition a wide variety of alternative channels available to plaintiffs, and defendants' policy appears to be the sort of "manner, time and place" limitation that the Court implicitly approved inConnick. 461 US at 152.
Plaintiffs press the argument that their speech was chilled by Hicks' circulation to all CEDA employees in late February of AI 71 and a memo reminding them that noncompliance could result in discipline. This, however, does not amount to an adverse employment action and would be germane only to the question of prospective relief. Accordingly, the court finds that, for purposes of retrospective relief, plaintiffs have a limited interest in the suppressed speech.
Defendants' countervailing interest is also modest. As the court's recitation of the law makes clear, workplace disruption is the touchstone of the employer's interest in the Pickering balance. Here, there is no dispute that Rederford and Christy's co-worker Jennings was disturbed by the flyer, nor is there dispute that removal of the flyer was the direct result of the investigation of Jennings' complaint. But whether the particular sensitivity of a single coworker amounts to cognizable workplace disruption under Pickering is far from clear. Furthermore, the bulk of Jennings' disquiet appears to have stemmed from her conversation with Rederford, an event that may have been precipitated by the flyer, but was nonetheless separate from the flyer. That said, the flyer appears to have been the root of a dust-up of sorts in the office — a Pickering disruption writ small.
The investigation of Jennings' complaint of harassment may conceivably be a form of workplace disruption. There is little detail in the record about the extent (in hours, for example) to which this disrupted Braddock and Wong in the performance of their normal duties, but it is undisputed that their investigation required at least an interview with Jennings, contact with the city attorney and drafting of a brief memorandum report. Of course, this sort of work — smoothing over employee grievances to maintain workplace harmony — is part of a supervisor's job description. In a sense, Braddock and Wong's efforts were "all in a day's work."
Defendants also urge that the City has an interest in enforcing its anti-harassment policies and complying with state and local anti-harassment law. While these policies doubtless serve noble purposes, the court is not convinced that these policies are independent interests weighing in the public employer's favor in the Pickering balance, for four reasons. First, the status of AI 71 as official policy pursuant to state law is irrelevant; it should go without saying that the First Amendment is a federal constitutional provision to which state and local laws must yield. See US Const Art VI cl 2. Second, the notion of enforcing a policy or law for its own sake is foreign to the Pickering analysis, which requires the court to focus on reasonable predictions of workplace disruption. It may be that the policy or law is aimed at avoiding workplace disruption; but if that is so, then the efficacy of the policy or law — not its simple existence — is the interest that a defendant brings to the court. Third, it is bootstrapping to argue that a public employer has a legitimate interest in enforcing the very policy or law a plaintiff attacks as unconstitutional in its application to him. Indeed, if the policy or law is unconstitutional in some application, the state has no legitimate interest in enforcing it in that context. And fourth, had plaintiffs' flyer been removed in the absence of actual or predicted workplace disruption — i e, if defendants' justification was enforcement of AI 71, standing alone — this case would more clearly present as a case of state enforcement of ideological orthodoxy. But as it stands, there is an element of maintaining a reasonably harmonious workplace in the face of strongly held opposing beliefs.
Having laid out plaintiffs' and defendants' competing interests, the court must strike the balance called for byPickering. Neither side has presented a strong case. But, the facts being undisputed, the court must resolve the question of law posed by Pickering. The interests on both sides are slight: On the one hand, defendants' restriction of plaintiffs is far from a wholesale muzzling, but on the other hand, the suppressed speech was not patently inflammatory "fighting words." To be sure, it caused friction in the workplace, but there is a difference between episodes of friction — which are the daily incidents of life in a pluralistic society — and disruption — which impairs the government's ability to discharge its duties to its citizens. The City must tread carefully when it exercises its authority to suppress its employees' speech.
Because the flyer plainly addresses a matter of public concern, it is defendants' burden to show that the City's interest outweighs plaintiffs' interest. Pool, 297 F3d at 906. This balance must be resolved in the City's favor for two reasons. First, plaintiffs' interest in this particular channel of communication is vanishingly small. It is undisputed that plaintiffs may promote GNEA outside of work and may do so even at work under proper conditions. Plaintiffs do not have a privileged First Amendment interest in communicating their message to their officemates, for their First Amendment rights derive from their status as citizens, not their status as employees. Their right to speak to their coworkers at CEDA is no greater than the right of a citizen at large to speak his message to CEDA employees — which is to say, plaintiffs have little rights at all in the particular channel they chose.
The second reason that defendants prevail is that their response to Jennings' complaint — removal of the flyer without any adverse employment action against plaintiffs — was a narrowly tailored and proportionate response to the actual workplace disruption or, perhaps better described, distraction. An actual adverse employment action against plaintiffs would very likely not be justified on these facts, and the City would be well to consider this for the future. But the City does have an "administrative interest" in avoiding situations that distract employees from their jobs. See Pool, 297 F3d at 906.Pickering counsels that public employers must, of necessity, be afforded some leeway in fixing their employees' attention on their tasks, free from upset stemming from public controversies having no bearing on the work of the employer.
Finally, the court addresses an argument for equal treatment that plaintiffs press — albeit without offering support in the case law. See, e g, Pls Opp (Doc #46) at 5:17-23 (complaining of "double standards"; the refusal to treat "exclusionary slurs such [as] `homophobes'" as violations of AI 71; and a failure "to accommodate views concerning homosexuality [held] by * * * religious adherents"). Plaintiffs' disparate treatment argument, while superficially appealing, is simply not recognized byPickering and its progeny, and with good reason: Intervention by a court in restrictions on employee speech under Pickering's balancing test already carries a substantial risk of interference with government operations; to inquire further into allegations of disparate treatment in restrictions of different employees' speech would remit the disciplinary operations of public agencies to the micromangement of the courts. In other words, Pickering draws a line: So long as a public employee's speech is restricted only when the employer presents an overbalancing concern of workplace disruption, a court will defer to the employer's decision, irrespective whether the employer has responded in kind to similar speech.
In sum, the court concludes that plaintiffs' First Amendment rights were not abridged by the removal of the flyer.
IV
Plaintiffs also seek prospective relief, specifically, an "[i]njunction restraining Defendants from prohibiting Plaintiffs from * * * communicating at their workplace" and a declaration of "the rights and other legal relations of the parties to the subject matter here in controversy." Compl (Doc #1) at 12-13. In essence, plaintiffs want guidance about what they can and cannot post around the office. The court does not dispense this sort of advice.
The only concrete controversy plaintiffs have presented to the court is the controversy over the flyer in the copy room. On the undisputed facts of that incident — considering plaintiffs' alternative channels of communication, the form of their speech and the ensuing events in their workplace — the court has concluded that plaintiffs' First Amendment rights were not violated. To the extent that plaintiffs seek to put other scenarios before the court, their challenge is unripe: Plaintiffs offer no details of the flyers they wish to post or other workplace speech they wish to make, and they offer no evidence regarding the workplace disruption that might (or might not) ensue. At most, plaintiffs point to Hicks' memo of February 20, 2003, as a threat of termination, but a reminder in a widely circulated memo that compliance with policy is a condition of employment can hardly be taken as a concrete and imminent chill on protected expression or an individually directed threat of adverse employment action. Moreover, defendants have both moved on to other jobs, and plaintiffs offer no evidence that defendants' successors would take the same view of the application of AI 71.
Relatedly, the court doubts that it could craft any generalized equitable or declaratory relief in this area of the law. For better or worse, Pickering requires case-by-case analysis that turns on fact-intensive inquiries into a plaintiff's interest in speaking and the public employer's interest in efficient workplace operations. Cf Moran, 147 F3d at 847 (noting that because the Pickering analysis is so context-sensitive, defendants will typically have a strong argument for qualified immunity).
To be sure, matters at the extremes are clear. On one extreme, stifling of every expressive channel available to plaintiffs without any showing of workplace disruption would likely be a violation of their First Amendment rights; on the other extreme, a limited restriction closely tailored to actual and severe workplace disruption would likely not violate plaintiffs' First Amendment rights. Much as plaintiffs might hope otherwise, the gray area within this vast and multidimensional constitutional continuum is not reducible to the language of an injunction. This further confirms the court's view that no concrete actual controversy is before it with regard to plaintiffs' claim for prospective relief.
Accordingly, the court concludes that plaintiffs' claim for equitable and prospective declaratory relief is nonjusticiable and sua sponte dismisses that claim under FRCP 12(h)(3).
V
In sum, the court GRANTS defendants' motion for summary judgment (Doc #40) with respect to plaintiffs' claims for retrospective relief, and sua sponte dismisses plaintiffs' claims for prospective relief pursuant to FRCP 12(h)(3). The clerk is DIRECTED to close the file and terminate all motions.
IT IS SO ORDERED.