United States District Court, D. Nevada
LLOYD D. GEORGE, District Judge.
The plaintiffs, Valerie Hirata, Whitnie Taylor and Angela Jones, have brought suit against their former employer, the Southern Nevada Health District ("SNHD"), as well as twelve of their former co-workers and supervisors, claiming that each violated 42 U.S.C. § 1983, by using the plaintiffs' protected speech as a basis for harassment and retaliation. The plaintiffs further allege that such harassment constituted both a negligent and an intentional infliction of emotional distress, and that the harassment was so intolerable that each plaintiff's resignation amounted to a constructive discharge. Finally, the plaintiffs allege that the harassment by each defendant in their individual capacity was part of a civil conspiracy to violate the plaintiffs' rights. Eight of the defendants moved to dismiss the final claim (#20), a motion ultimately joined by the remaining five defendants (#30). The latter five defendants additionally moved to dismiss the first four claims contained in the complaint (#27). The plaintiffs oppose both motions (##33, 43), except as applied to their negligent infliction of emotional distress claim, to which the plaintiffs support dismissal (#45, 13:20). The Court will deny the first motion, and will grant the second motion in part and deny the second motion in part.
Motion to Dismiss
The defendants' motions to dismiss, brought pursuant to Fed.R.Civ.P. 12(b)(6), challenge whether the plaintiffs' complaint states "a claim upon which relief can be granted." In ruling upon these motions, the Court is governed by the relaxed requirement of Rule 8(a)(2) that the complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief." As summarized by the Supreme Court, a plaintiff must allege sufficient factual matter, accepted as true, "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Nevertheless, while a complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555 (citations omitted). In deciding whether the factual allegations state a claim, the court accepts those allegations as true, as "Rule 12(b)(6) does not countenance... dismissals based on a judge's disbelief of a complaint's factual allegations." Neitzke v. Williams, 490 U.S. 319, 327 (1989). Further, the court "construe[s] the pleadings in the light most favorable to the nonmoving party." Outdoor Media Group, Inc. v. City of Beaumont, 506 F3.d 895, 900 (9th Cir. 2007).
However, bare, conclusory allegations, including legal allegations couched as factual, are not entitled to be assumed to be true. Twombly, 550 U.S. at 555. "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679. Thus, this court considers the conclusory statements in a complaint pursuant to their factual context.
To be plausible on its face, a claim must be more than merely possible or conceivable. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]'-that the pleader is entitled to relief." Id. (citing Fed. R. Civ. Proc. 8(a)(2)). Rather, the factual allegations must push the claim "across the line from conceivable to plausible." Twombly, 550 U.S. at 570. Thus, allegations that are consistent with a claim, but that are more likely explained by lawful behavior, do not plausibly establish a claim. Id. at 567.
The plaintiffs, Valerie Hirata, Whitnie Taylor and Angela Jones, each worked with the Southern Nevada Health District (SNHD) for approximately 10 to 11 years, before each resigned between September and December of 2012 (#1, ¶¶ 5-7). The defendants include the SNHD, as well as its former employees and directors, including an environmental health director, environmental health supervisors, environmental health specialists, environmental health trainers, human resource administrators, human resource supervisors, human resource analysts and the chief health officer (#1, ¶¶ 8-19).
The plaintiffs allege that the Pool Plan Review Program, of which they were a part, instituted a variety of policy changes that would, in their opinion, lead to inadequate and unsafe pool inspections and approvals (#1, ¶ 33). In response, the plaintiffs, both individually and with other coworkers, filed a variety of complaints with their union representatives, as well as with a variety of supervisors and managers within SNHD. The plaintiffs allege further that each of the defendants, individually and as part of a concerted effort to protect SNHD from accusations of malfeasance, retaliated against the plaintiffs through a variety of harassments and punishments (#1, ¶¶ 29, 501). Although two plaintiffs initially sought resolution of their concerns through their unions, each plaintiff ultimately resigned from her position, citing variously the "toxic, " "hostile, unhealthy and retaliatory, " and "intolerable" work environment (#1, ¶¶ 419, 440 & 489).
Claim 1 - § 1983 Civil Rights Violation
The plaintiffs allege that the defendants violated 42 U.S.C. § 1983 by depriving them of their First Amendment rights to free speech. They allege that "the harassing, threatening and retaliatory conduct of the defendants was the result of the plaintiffs raising concerns within SNHD and to outside federal and state agencies and local officials regarding the unethical, unsafe practices of SNHD." (#1, ¶ 24). Therefore the Court must first determine whether the speech at issue was constitutionally protected. If the speech is protected, the Court must then determine whether the defendants' alleged threats and retaliation amounted to a § 1983 violation.
The controlling Supreme Court decision is Garcetti v. Ceballos, which held "that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). The Ninth Circuit has provided a further test in order to determine when a public employee's speech receives First Amendment protection: "First, the plaintiff bears the burden of showing that the speech addressed an issue of public concern.... Second, the plaintiff bears the burden of showing the speech was spoken in the capacity of a private citizen and not a public employee.... Third, the plaintiff bears the burden of showing the state took adverse employment action and that the speech was a substantial or motivating factor in the adverse action.... Fourth, if the plaintiff has passed the first three steps, the burden shifts to the government to show that... the state's legitimate administrative interests outweigh the employee's First Amendment rights.... Fifth and finally, if the government fails the [above] balancing test, it alternatively bears the burden of demonstrating that it would have reached the same adverse employment decision even in the absence of the employee's protected conduct." Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009) (quotations and citations omitted).
The defendants' motion to dismiss focuses on the second and third inquiry (#27, 19-21). They argue that the plaintiffs have failed to plausibly allege that the contested speech was not made in their role as public employees, and that they have failed to plausibly allege that the contested speech was a substantial or motivating factor in the adverse employment action.
The defendants contend that although "[p]laintiffs raised the issue over and over, verbally, through memoranda and formal grievances... [a]ll of those issues were raised within the scope of Plaintiffs' professional duties in the Pool Plan Review unit" (#27, 19:14-17). The central determination therefore becomes whether or not part of the plaintiffs' employment duties included making such grievances. The Ninth Circuit has held that this issue is "a mixed question of fact and law." See Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1129 (9th Cir. 1008). The Court finds that for the ...