Decotiis v. Whittemore

680 F.Supp.2d 263

Ellen H. DECOTIIS, Plaintiff,

v.Lori WHITTEMORE, et al., Defendants.

No. 09-cv-354-P-S.

United States District Court, D. Maine.

Decided: Jan. 28, 2010.

COPYRIGHT MATERIAL OMITTED

Rufus E. Brown, Brown & Burke, Zachary L. Heiden, Maine Civil Liberties Union, Portland, ME, for Plaintiff.

Sarah A. Forster, Assistant Attorney General, Augusta, ME, for Defendants.

ORDER ON MOTION TO DISMISS

GEORGE Z. SINGAL, District Judge.

Before the Court is the Motion to Dismiss by Defendants Lori Whittemore Child Development Services-Cumberland and Debra Hannigan. As explained herein, the Court GRANTS the motion and DISMISSES Plaintiffs Complaint.

I. LEGAL STANDARD

A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) tests the "legal sufficiency" of a complaint. Gomes v. Univ. of Me Sys., 304 F.Supp.2d 117, 120 (D.Me.2004). The general rules of pleading require "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). This short and plain statement need only "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal quotation and alteration omitted). However, "[t]o survive a motion to dismiss a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal,-U.S.-, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (internal quotation omitted).

The Court must accept as true all wellpleaded factual allegations in the Complaint and draw all reasonable inferences in Plaintiffs favor. Gargano v. Liberty Int'l Underwriters, Inc., 572 F.3d 45, 48 (1st Cir.2009). In distinguishing sufficient from insufficient pleadings, which is "a context-specific task," the Court must "draw on its judicial experience and common sense." Iqbal, 129 S.Ct. at 1950.

II. FACTUAL BACKGROUND

Defendant Debra Hannigan is the State Director of the Child Development Services of Maine ("CDS"). The CDS system is comprised of fifteen regional CDS sites around the State of Maine. Defendant CDS-Cumberland is one of the regional sites. Defendant Lori Wittemore is Director of CDS-Cumberland.

CDS services are generally provided by contract with individual providers. Plaintiff Ellen Decotiis is a speech-language pathologist and speech-language therapist who provided speech and language therapy and evaluations under contracts with various regional sites for eighteen years. In 2008, Plaintiff was under contract with CDS-Cumberland, CDS-York, and CDSNorway to provide speech and language therapy and evaluations for children with disabilities between the ages of three and five.

Among the services provided by CDS is Free Appropriate Public Education ("FAPE"), a program supervised by the Maine Department of Education in which children with disabilities between the ages of three and five years old are provided with therapy for physical, cognitive, communication, social, emotional, and adaptive development. In 2008, the Maine legislature passed Unified Rule 101, which changed the way FAPE services were administered for children between the ages of three and five. Prior to Unified Rule 101, services were provided on a yearround basis. Unified Rule 101 provided that services would be offered on a schoolyear basis (September 1-June 30), and that a child would be entitled to services in July and August only if they qualified for Extended School Year Services ("ESY").¹The State CDS adopted a policy that ESY services would be the exception and not the rule, and that ESY services would be provided only if the team consulting on a child's IEP determined, on an individualized basis, that the services were necessary to comply with federal law.

Following the adoption of Unified Rule 101, there was "confusion and concern" among the regional CDS sites, providers of services, and parents of children with disabilities. (Complaint, Court Doc. 1, ¶23.) In early 2008, CDS-York and CDS-Norway informed Plaintiff of the procedure by which requests for ESY services would be evaluated in their regions. CDS-Cumberland gave Plaintiff no such guidance.

In March 2008, Plaintiff completed her routine quarterly reports for her caseload of children covered by CDS-Cumberland. These reports included her recommendations for ESY services. Based on her experience with CDS-York and CDS-Norway, Plaintiff expected that CDS-Cumberland would then notify her of an IEP meeting for each client, during which she expected that a decision would be made with regard to that client's eligibility for ESY services. CDS-Cumberland did not contact Plaintiff to schedule IEP review meetings regarding ESY services.

Plaintiff became concerned that CDSCumberland was acting unlawfully by not complying with federal standards regarding the provision of ESY services. Plaintiff contacted Defendant Hannigan regarding the difference between how eligibility for ESY services was being handled by CDS-York and CDS-Norway on the one hand, and CDS-Cumberland on the other.

Hannigan informed Plaintiff that she could not account for the inconsistency. Plaintiff then contacted Southern Maine Parents Awareness ("SMPA"), a private advocacy group giving support to parents with children with disabilities, and the Disability Rights Center ("DRC"), a federally funded, statewide advocacy group for people with disabilities. Plaintiff was informed by these organizations that CDS-Cumberland did not appear to be complying with state and federal laws in how it was determining eligibility for ESY services.

After receiving feedback from the advocacy groups, Plaintiff informed the parents of her CDS-Cumberland clients that she was "confused and concerned" about the criteria CDS-Cumberland was using for determining eligibility for ESY services. (Complaint ¶42.) She urged those parents to contact SMPA and DRC for guidance with regard to their rights under state and federal laws. Plaintiff also posted the name and telephone number of the SMPA and DRC in her office for the benefit of her clients' parents.

In May 2008, Defendant Whittemore contacted Plaintiff to complain that Plaintiff was "out to get her." (Complaint ¶ 43.) On July 29, 2008, Plaintiff was informed by CDS-Cumberland that it would not renew her annual contract, which was set to expire on September 1, 2008.

III. DISCUSSION

Plaintiff brings a claim for retaliation in violation of her First Amendment rights against Defendant Whittemore individually and in her official capacity as director of CDS-Cumberland. Plaintiff also brings a claim against CDS-Cumberland for an unconstitutional policy, custom or procedure and for failure to train Whittemore. Plaintiffs final claim is against Defendant Hannigan in her official capacity as Director of CDS and alleges that Hannigan failed to adequately supervise Whittemore. Plaintiff seeks a declaration that the nonrenewal of her contract violated her First Amendment rights, compensatory and punitive damages, the reinstatement of her contract with CDS-Cumberland, injunctive relief to prevent further retaliation based on protected speech, and attorney's fees. Each of Plaintiffs claims will be addressed in turn below.

A. Plaintiffs Claims against Defendant Whittemore (Count I)

Plaintiff brings a First Amendment retaliation claim against Defendant Whittemore in her individual capacity and in her official capacity as director of CDS-Cumberland. Initially, the Court notes that Plaintiffs claim against Whittemore in her official capacity is redundant because Plaintiff has also named CDS-Cumberland as a Defendant. See Surprenant v. Rivas 424 F.3d 5, 19 (1st Cir.2005) ("A suit against a public official in his official capacity is a suit against the governmental entity itself."). Accordingly, Plaintiffs claim against Defendant Whittemore in her official capacity is dismissed.

As to Plaintiffs claims against Defendant Whittemore in her individual capacity, Defendant Whittemore has asserted the defense of qualified immunity. "Qualified immunity is a judge-made construct that broadly protects public officials from the threat of litigation arising out of their performance of discretionary functions." Bergeron v. Cabral, 560 F.3d 1, 5 (1st Cir.2009). The qualified immunity analysis generally follows a two-step approach which asks: "(1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was 'clearly established' at the time of the defendant's alleged violation." Maldonado v. Fontanes 568 F.3d 263, 269 (1st Cir.2009).

1. Does Plaintiffs Compliant sufficiently allege a constitutional violation?

"Public employees do not lose their First Amendment rights to speak on matters of public concern simply because they are public employees." ² Curran v Cousins, 509 F.3d 36, 44 (1st Cir.2007) (citing Connick v. Myers, 461 U.S. 138 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). These rights, however, are not absolute. "When a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom." Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). To prevail on a First Amendment retaliation claim, a plaintiff must show: (1) that she spoke as a citizen on a matter of public concern; (2) that her interest in commenting upon these matters outweighed the defendant's interest in the efficient performance of its public services; and (3) that the protected speech was a substantial or motivating factor in the defendant's adverse employment action. Lewis v. City of Boston, 321 F.3d 207, 218-19 (1st Cir. 2003). The first two...