RECOMMENDED DECISION ON MOTION TO DISMISS
The defendant, Michael Povich, seeks dismissal of most of the claimsasserted against him in this action alleging federal constitutionalviolations arising out of workplace conduct. I recommend that the motionbe granted in part and denied in part.
I. Applicable Legal Standard
The motion to dismiss invokes Fed.R.Civ.P. 12(b)(1) and (b)(6).Defendant's Motion to Dismiss, etc. ("Motion") (Docket No. 5) at 1. Whena defendant moves to dismiss pursuant to Rule 12(b)(1), the plaintiff hasthe burden of demonstrating that the court has jurisdiction.Lundquist v. Precision Valley Aviation, Inc., 946 F.2d 8, 10(1st Cir. 1991); Lord v. Casco. Bay Weekly, Inc., 789 F. Supp. 32,33 (D. Me. 1992). The court does not draw inferences favorable to thepleader. Hogdon v. United States, 919 F. Supp. 37, 38 (D. Me.1996). For the purposes of a motion to dismiss under Rule 12(b)(1) only,the moving party may use affidavits and other matter to support themotion. The plaintiff may establish the actual existence of subject-matter jurisdiction throughextra-pleading material. 5A C. Wright & A. Miller, FederalPractice and Procedure § 1350 at 213 (2d ed. 199G); seeHawes v. Club Ecuestre el Comandante, 598 F.2d 698, 699 (1st Cir.1979) (question of jurisdiction decided on basis of answers tointerrogatories, deposition statements and an affidavit).1
In contrast, "[i]n ruling on a motion to dismiss [under Rule 12(b)(6)],a court must accept as true all the factual allegations in the complaintand construe all reasonable inferences in favor of the plaintiff."Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co.,267 F.3d 30, 33 (1st Cir. 2001). The defendant is entitled to dismissalfor failure to state a claim only if "it appears to a certainty that theplaintiff would be unable to recover under any set of facts." StateSt. Bank & Trust Co. v. Denman Tire Corp., 240 F.3d 83, 87 (1stCir. 2001); see also Wall v. Dion, 257 F. Supp.2d 316, 318 (D.Me. 2003).
II. Factual Background
The complaint includes the following relevant factual allegations.
The plaintiff was hired on December 14, 1999 to work as a victimwitness advocate in the office of the Hancock County District Attorney.Complaint and Demand for Jury Trial ("Complaint") (Docket No. 1) ¶ 6.The defendant, the elected district attorney for Hancock and WashingtonCounties, was her supervisor. Id. ¶ 3, 7. During theplaintiff's employment in this capacity, which continued until March 18, 2002, the defendant made several sexually suggestive comments tothe plaintiff. Id. ¶ 8-9. He also repeatedly referred tofemale crime victims as "bitches" or "whores." Id. ¶ 9. Hedid not engage in such conduct with male employees. Id. ¶10.
On March 20, 2002 the plaintiff filed a grievance with the HancockCounty board of commissioners, setting forth some of the conductdescribed in the complaint. Id. ¶ 15. The commissionersupheld the grievance and offered to find another position for theplaintiff as a county employee. Id. ¶ 16. The plaintiffaccepted a series of positions with the county that were not under thedefendant's direct supervision. Id. ¶ 17. The defendant"work[ed] to defeat plaintiffs reassignment as a County employee, suchthat some of the divisions to which plaintiff was reassigned refused toaccept her and other divisions made her working life quite difficult,leading to her constructive discharge on January 29, 2003." Id.¶ 18.
A. Official Capacity Claims
Both of the counts in the plaintiff's complaint appear to be allegedagainst the defendant in both his individual and official capacities.Count I alleges that the defendant violated the plaintiff's "substantiverights to equal protection of the law in violation of the FourteenthAmendment of the United States Constitution." Complaint ¶ 9. Count IIalleges that the defendant retaliated against the plaintiff "for herexercise of her right to petition the County Commissioners for a redressof her grievances." Id. ¶ 18. The defendant contends thatthe claims against him must be dismissed "[t]o the extent that theplaintiff seeks money damages from the defendant in his officialcapacity." Motion at 5.2 This is so, he asserts, because he is a"full-time officer of the State" and state officials acting in their officialcapacities are not subject to suit under 42 U.S.C. § 1983, thestatutory vehicle by which the plaintiff's constitutional claims are andmust be brought. Id.
The defendant relies on 30-A M.R.S.A. § 256, id., whichprovides, in relevant part, that "[a]ll district attorneys . . . arefull-time officers of the State." The plaintiff responds that thedefendant is nonetheless a "county official" for purposes of the claimsshe asserts against him in his official capacity. Opposition at 3-11.Since official-capacity claims "generally represent only another way ofpleading an action against an entity of which an officer is an agent,"Kentucky v. Graham, 473 U.S. 159, 165(1985); Burrell v.Hampshire County, 307 F.3d 1, 7 (1st Cir. 2002), it is curious thatthe plaintiff has not named the county as a party defendant in this case.Because the county's interests were potentially affected by theplaintiff's argument, I held a conference of counsel after which Iinvited counsel for the county to submit a memorandum of law on thisissue. Report of Conference of Counsel and Order (Docket No. 15). Thecounty has done so; in general, its position supports the defendant onthis issue. Hancock County's Response to the Assertion that an OfficialCapacity Claim Against the District Attorney Constitutes a Claim AgainstHancock County (Docket No. 19).
The plaintiff cites two decisions of the Maine Law Court which shecontends support her position, Withee v. Lane & Libby FisheriesCo., 113 A. 22 (Me. 1921), and Paine v. State, 258 A.2d 266(Me. 1969), and correctly points out that the Law Court in Ingrahamv. University of Maine, 441 A.2d 691, 692 (Me. 1982), decided onlythat district attorneys enjoy absolute immunity from suit under section1983 for actions taken in their prosecutorial capacities. While I am inclined to agree with the defendant and the county that thedefendant is a state official for purposes of the claims asserted here,it is not necessary to resolve that issue. If the defendant is a stateofficial, he clearly cannot be sued in federal court in his officialcapacity under section 1983. Buckhannon Bd. & Care Home, Inc. v.West Virginia Dep't of Health & Human Resources,532 U.S. 598, 609 n. 10 (2001) (damages); Will v. Michigan, 491 U.S. 58,71 n.10 (1989) (injunctive relief).3 If the defendant is a countyofficial, any claim against him in his official capacity is a claimagainst the county. The county may only be sued under section 1983 in anofficial-capacity action when the plaintiff alleges that a policy orcustom of the county played a part in the violation of federal law.Hafer v. Melo, 502 U.S. 21, 25 (1991); Burrell, 307F.3d at 7. The complaint in this action cannot reasonably be read toallege the existence of any such policy or custom. The defendant isaccordingly entitled to dismissal of all claims asserted against himin his official capacity.
B. Count II
The defendant contends that he is entitled to dismissal of the claimsasserted against him in his individual capacity in Count II because thecomplaint does not allege violation of a constitutional right or anadverse employment action and, in the alternative, he was entitled toqualified immunity. Motion at 6-15. That count alleges that the defendantretaliated against the plaintiff for her exercise of her First Amendmentrights in filing a grievance against him with the county commissioners.Complaint ¶ 18. In order to state a claim based on the First Amendment, the plaintiffmust show that her conduct was constitutionally protected and that theconduct was a substantial factor contributing to the alleged adverseemployment action. Mt. Healthy City Sch. Dist. Bd. of Educ. v.Doyle, 429 U.S. 274, 287 (1977); Tang v. State of Rhode Island,Dep't of Elderly Affairs, 163 F.3d 7, 12 (1st Cir. 1998). Thedefendant argues first that the plaintiff's grievance was not entitled toFirst Amendment protection because it did not relate to a matter ofpublic concern, as required by Connick v. Myers, 461 U.S. 138,146-47 (1983). Motion at 7. The plaintiff in response contends that "apattern of sexual harassment against the Plaintiff and others" is amatter of public concern and that the defendant's alleged repeatedreferences to female victims as "bitches" and "whores" is "clearly amatter of public concern." Opposition at 12.4
The complaint cannot reasonably be read to allege "a pattern of sexualharassment" against anyone other than the plaintiff. The First Circuithas not determined whether an employee's allegations of sexual harassmentagainst that employee alone constitute a matter of public concern. I findpersuasive on this issue the opinions of the circuit courts that haveheld that such allegations do not. E.g., David v. City & Countyof Denver, 101 F.3d 1344, 1356-57 (10th Cir. 1996); Saulpaugh v.Monroe Cmty. Hosp., 4 F.3d 134, 143 (2d Cir. 1993); Stewart v.Parish of Jefferson, 951 F.2d 681, 683 (5th Cir. 1992); Rice v.Ohio Dep't of Transp., 887 F.2d 716, 719-20 (6th Cir. 1989), rev'don other grounds 497 U.S. 1001 (1990). The complaint also alleges thatthe defendant "repeatedly referred to female victims as `bitches' and`whores,'" Complaint ¶ 9(f), and a reasonable inference may be drawnfrom the allegations in the complaint that this conduct was included in the grievance at issuein Count II, id. ¶ 15. The defendant's motion does not address thisassertion, which cannot be characterized as alleging sexual harassmentagainst the plaintiff. The plaintiff relies on this allegation in heropposition to the motion. Opposition at 15-16. The defendant respondsthat this allegation is not constitutionally protected because, if it wasincluded in the grievance, the grievance nonetheless "primarily relatedto [the plaintiff's] own working conditions." Defendant's Reply toPlaintiff's Opposition to Defendant's Motion to Dismiss ("Reply") (DocketNo. 18) at 4. He understandably cites no authority in support of thisargument to the effect that constitutional protection of speech dependson whether the speech at issue is expressed together with a greaternumber of words that are not protected. It is not the role of this courtin connection with a motion to dismiss to determine whether the statementat issue was actually included in the grievance. I conclude that theallegation concerning the defendant's repeated offensive characterizationof female victims does constitute speech on a matter of public concern.
The defendant next argues that the complaint fails to allege that thedefendant took adverse action against her. Motion at 8-9.5 This isso, he asserts, because the complaint does not allege that he himself"terminated the plaintiff, demoted the plaintiff, reduced her salary,failed to promote her, or divested her of significant jobresponsibilities." Motion at 10. The complaint alleges only that thedefendant" work[ed] to defeat plaintiff's reassignment as a Countyemployee, such that some of the divisions to which plaintiff wasreassigned refused to accept her and other divisions made her workinglife quite difficult, leading to her constructive discharge." Complaint¶ 18. The defendant contends that "such conduct falls short of the threshold necessary to establish an adverse employment action."Motion at 10. He also asserts that the plaintiff cannot hold him liablefor the actions of third parties under a respondeat superior theory.Id. at 11. Finally, he argues that the retaliation claim ingeneral "fails to meet the pleading standard established by the FirstCircuit in a First Amendment retaliation case." Id. at 12.
The complaint cannot reasonably be read to allege liability in Count IIon a theory of respondeat superior. It can be read to allege that thedefendant caused the constructive discharge of the plaintiff.Constructive discharge is an adverse employment action. See, e.g.,Paquin v. MBNA Marketing Sys., Inc., 233 F. Supp.2d 58, 68-69 (D. Me.2002). "[T]he standard for showing an adverse employment action is lowerin the First Amendment retaliation context that it is in other contexts."Rivera-Jimenez v. Pierluisi, 362 F.3d 87, 94 (1st Cir. 2004).While the court need not credit "bald assertions, unsupportableconclusions, and opprobrious epithets" in determining the sufficiency ofa First Amendment claim as pleaded, Campagna v. Massachusetts Dep'tof Envtl. Prot., 334 F.3d 150, 155 (1st Cir. 2003), the SupremeCourt has held that no heightened pleading standard may be applied toemployment discrimination suits, Swierkiewicz v. Sorema N.A.,534 U.S. 506, 515 (2002), and the First Circuit has expressly adopted thisholding for claims brought under section 1983, as is the case here,Pena-Borrero v. Estremeda, ___F.3d ___, 2004 WL 758426 (1st Cir.Apr. 9, 2004), at *2. See also Gorski v. New Hampshire Dep't ofCorrections, 290 F.3d 466, 473 (1st Cir. 2002). While the complaintin this case veers perilously close to expressing this element of theretaliation claim as a "bald assertion," I conclude that an adverseemployment action is adequately pleaded. The defendant's final attack on Count II as pleaded is an assertionthat he is entitled to qualified immunity against the claim. Motion at12-15.
For a plaintiff to overcome a qualified immunity defense, [s]he must show that h[er] allegations, if true, establish a constitutional violation; that the right was clearly established; and that a reasonable official would have known that his actions violated the constitutional right at issue.Mihos v. Swift, 358 F.3d 91, 98-99 (1st Cir. 2004) (FirstAmendment retaliation case). Here, I have already determined that thecomplaint alleges violation of a constitutional right. The defendantasserts that this right was not clearly established at the time of theevents giving rise to the complaint. Motion at 13-14. InRivera-Jiménez, the First Circuit held that theunconstitutionality of retaliation for a public employee's speech on amatter of public concern has been clearly established in this circuit atleast since 1993. 362 F.3d at 95. The defendant contends that this casenonetheless presents a situation in which the constitutional right wasnot clearly established because a "double" violation is alleged —that the defendant did not directly cause the constructive discharge butrather caused others to act in a manner that caused the constructivedischarge. Motion at 13-14. However, this argument deals with the mannerin which the violation of the right occurred, not the question whetherthe right itself was clearly established. There can be no doubt that theanswer to the question when properly posed is that the right itself wasclearly established.6
The defendant also contends that "[t]his is not a case in which areasonable district attorney would have known that the plaintiff'sinternal grievance was protected by the First Amendment or that he/shewas acting unconstitutionally by speaking to third parties, as theplaintiff apparently alleges." Motion at 14. This challenge to thecomplaint on the final element of a qualified immunity defense alsofails. A reasonable lawyer serving as a district attorney would have known in 2002 and2003 that retaliation for a public employee's exercise of her right tofree speech was not protected by the Constitution and that some internalgrievances are protected by the First Amendment. The complaint does notallege that the defendant acted unconstitutionally by speaking to others,although that may have been the means by which "working to defeatplaintiff's reassignment . . . leading to her constructive discharge,"Complaint ¶ 18, may possibly have been accomplished. It is theretaliation, not any alleged speech by the defendant, if it occurred,that is unlawful. The complaint need not allege what the defendant knewat the relevant time. Retaliation has been adequately alleged.
The defendant contends both that the constitutional right at issue inthis case could not have been clearly established and that he could notreasonably have known that that his alleged conduct violated that rightbecause the implicated First Amendment right "necessarily involves thebalancing of competing rights." Motion at 13. All of the case law citedby the defendant in his "balancing" argument arose in the context ofsummary judgment and was necessarily tied to the facts of each case.O'Connor v. Steeves, 994 F.2d 905, 906, 913-17 (1st Cir. 1993);Bartlett v. Fisher, 972 F.2d 911, 912, 916-18 (8th Cir. 1992);Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1322,1323-24 (11th Cir. 1989); Noyola v. Texas Dep't of HumanResources, 846 F.2d 1021, 1023-25 (5th Cir. 1988). It may well bethat the defendant is entitled to summary judgment based on the facts.The facts underlying the defense of qualified immunity are not before thecourt at this time, however. The only question before the court iswhether, based on the allegations in the complaint, the plaintiff wouldnot be able to recover under any set of facts due to the defendant'squalified immunity. That question must be answered in the negative.
IV. Conclusion For the foregoing reasons, I recommend that the defendant's motion todismiss be GRANTED as to any claims asserted against him in hisofficial capacity and as to any claims for injunctive relief andotherwise DENIED.
A party may file objections to those specified portions of amagistrate judge's report or proposed findings or recommended decisionsentered pursuant to 28 U.S.C. § 636(b)(1)(B) for whichde novo review by the district court is sought,together with a supporting memorandum and request for oral argumentbefore the districtjudge, if any is sought, within ten (10) days afterbeing served with a copy thereof. A responsive memorandum and anyrequest for oral argument before the district judge shall be filedwithin ten (10) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of theright to de novo review by the district court and to appeal thedistrict court's order.
1. The plaintiff contends that "the parties in the present caseshould be given the opportunity to do discovery and develop relevantfactual evidence before the court rules on [the question whether thedefendant is a state or county official]. This issue would be moreappropriately resolved on summary judgment." Plaintiffs Memorandum of Lawin Opposition to Defendant's Motion to Dismiss ("Opposition") (Docket No.17) at 7 n.3. In fact, this issue is appropriate for resolution in thecontext of a motion to dismiss, Rivera-Flores v. Puerto Rico. Tel.Co., 64 F.3d 742, 748 (1st Cir. 1995), and, given the fact that itis the plaintiffs burden to show subject-matter jurisdiction, theplaintiff must demonstrate what additional factual material is necessaryand can only be gleaned through discovery. See Jazini v. Nissan MotorCo., 148 F.3d 181 185 (2d Cir. 1998) (conclusory factual assertionsinsufficient when subject-matter jurisdiction challenged). The plaintiffhas not moved for leave to conduct discovery on this issue nor has sheprovided the necessary details about the discovery that she would pursue.She is not entitled to deferral of this issue on the showing made in herfootnote. See Berrios v. Department of the Army, 884 F.2d 28, 33(1st Cir. 1989).
2. The complaint also seeks "equitable relief enjoining defendantfrom such conduct in the future." Complaint at 3, 5. The defendant pointsout that the plaintiff does not seek reinstatement to employment with thecounty and that the complaint does not include any allegations ofwrongful conduct toward other employees. Motion at 2 n. 1. Nor does theplaintiff seek to represent a class of similarly-situated employees.Under these circumstances, no basis for injunctive relief is alleged.City of Los Angeles v. Lyons, 461 U.S. 95, 101-05 (1983). Thedefendant is entitled to dismissal of all claims for injunctive relief.The discussion in this recommended decision is accordingly limited tothat plaintiff's only other demand for relief, for compensatory andpunitive damages. Complaint at 3, 5.
3. The plaintiff asserts that she "does not concede Defendant'sEleventh Amendment argument," citing Nevada Dep't of Human Resourcesv. Hibbs, 538 U.S. 721, 123 S.Ct. 1972 (2003). Opposition at 3 n.2.However, she offers no suggestion of the manner in which Congress mayhave abrogated the states' Eleventh Amendment immunity for claims arisingunder the First and Fourteenth Amendments, the bases of her claims. 538U.S. at ___, 124 S.Ct. at 1976 ("Congress may . . . abrogate [EleventhAmendment] immunity in federal court if it makes its intention toabrogate unmistakably clear in the language of the statute. . . ."). Inthe absence of any developed argument, this legal assertion must bedeemed to have been waived. Graham v. United States,753 F. Supp. 994, 1000 (D. Me. 1990).
4. The plaintiff also contends that "[w]ithout having the specificcontent of the grievance before it, the Court cannot adequately addressthe issue of whether Plaintiffs grievance in fact addressed a matter ofpublic concern," and that the motion to dismiss should therefore bedenied "without prejudice to Defendant's right to later raise this issueon a motion for summary judgment." Opposition at 12. This argument againmisconstrues the role of a motion to dismiss. When the asserted basis fordismissal is Rule 12(b)(6), as is the case with this portion of thedefendant's motion, Motion at 1, the court considers only the allegationsin the complaint and construes them reasonably in favor of the plaintiff.In this case, I accordingly construe the allegations in the complaint toassert that any or all of the specific instances of allegedlydiscriminatory conduct by the defendant were included in the plaintiffsgrievance.
5. The plaintiff's first response, that "this is not a matter whichshould be decided on a motion to dismiss," Opposition at 16, againevinces a basic misunderstanding of the nature of a motion to dismiss.The sufficiency of the allegations in a complaint is the essence of thematter at issue when a motion to dismiss is filed.
6. See generally Rutan v. Republican Party of Illinois, 497 U.S. 62(1990), cited in Rivera-Jiménez, 362 F.2d at 95, in which theSupreme Court held that employment actions based on politicalaffiliation, directed by governor but carried out by others, violatedFirst Amendment.