Opinion
Case No.: 2:19-cv-295-FtM-38MRM
08-21-2019
NICHOLE GWINNETT, Plaintiff, v. SOUTHWEST FLORIDA REGIONAL PLANNING COUNCIL, Defendant.
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Before the Court is Defendant's Motion to Dismiss (Doc. 14) and Plaintiff's response in opposition (Doc. 17). This is a First Amendment retaliation case involving a public employee. (Doc. 1). Plaintiff claims a First Amendment violation because Defendant compelled her either to speak on private matters or be fired. (Doc. 1 at 3-5). In the Motion papers, the parties dispute which legal standard applies. So the Court requests supplemental briefing on the issue.
The touchstone case involving public employees' First Amendment rights is Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cty., Ill., 391 U.S. 563 (1968). Pickering, and its progeny, laid out a test that plaintiffs must satisfy to enjoy First Amendment protection. In part, an employee's speech must be "as a citizen on a matter of public concern." Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (citing Pickering, 391 U.S. at 568). If not, "the employee has no First Amendment cause of action based on his or her employer's reaction to the speech." Id. (citing Connick v. Myers, 461 U.S. 138, 147 (1983)). In the past, some courts applied Pickering to situations where—like here—a public employee was fired for refusing to speak. Lewis v. Cowen, 165 F.3d 154, 161-64 (2d Cir. 1999); Phillips v. Ingham Cty, 371 F. Supp. 2d 918, 928-29 (W.D. Mich. 2005); Coover v. Saucon Valley Sch. Dist., 955 F. Supp. 392, 399-401 (E.D. Pa. 1997); see also Berry v. Bailey, 726 F.2d 670, 673-76 (11th Cir. 1984) (applying Pickering and holding that a public employee's refusal to follow an order was unprotected); Sykes v. McDowell, 786 F.2d 1098, 1103-05 (11th Cir. 1986) (noting that Pickering provides some constraint on First Amendment jurisprudence).
Yet the Supreme Court just called Pickering into question as it relates to compelled speech. Janus v. Am. Fed'n of State, Cty., and Mun. Emps., Council 31, 138 S. Ct. 2448, 2473 (2018) ("[T]he Pickering framework fits much less well where the government compels speech."). In doing so, the Court said, "[i]f Pickering applies at all to compelled speech—a question that we do not decide—it would certainly require adjustment in that context." Id. Because the speech at issue here was compelled, Janus raises the question of whether Pickering applies and, if so, how it must be modified to this context. Id.
But Defendant's Motion only addresses Pickering without discussion of the development described above. And Plaintiff claims Pickering does not apply at all. While Plaintiff cites a compelled speech standard, Cressman v. Thompson, 798 F.3d 938 (10th Cir. 2015), that was not a public employment case so the Pickering framework was not at issue. See also Doe 1 v. Marshall, 367 F. Supp. 3d 1310, 1324-26 (M.D. Ala. 2019). For those reasons, the Court requests Defendant to file a supplemental brief on the matter, to which Plaintiff may respond.
Accordingly, it is now
ORDERED:
1. Defendant shall FILE a supplemental brief on the issues identified above on or before September 4, 2019. Afterward, Plaintiff shall file a response to Defendant's supplemental brief on or before September 11, 2019.
2. The Court will defer ruling on Defendant's Motion to Dismiss (Doc. 14).
DONE and ORDERED in Fort Myers, Florida this 21st day of August, 2019.
/s/ _________
SHERI POLSTER CHAPPELL
UNITED STATES DISTRICT JUDGE Copies: All Parties of Record