DARRIN P. GAYLES, UNITED STATES DISTRICT JUDGE.
In this First Amendment action, the Plaintiffs, Alberto T. Fernandez, Henny Cristobol, and Patricia Ramirez, all current employees of the Miami-Dade County School District (the "District"), allege that the Defendant, the School Board of Miami-Dade County (the "School Board"), unlawfully took adverse employment action against them in retaliation for their attempt to convert Neva King Cooper Educational Center ("Neva King") — a school at which the Plaintiffs all formerly held positions — from a public school to a charter school (an attempt that ultimately failed). Before the Court is the School Board's Motion to Dismiss the Plaintiffs' Second Amended Complaint [ECF No. 31]. The Court has carefully considered the pleadings, the operative Complaint, and the applicable law. For the reasons that follow, the School Board's motion shall be denied.
1. Charter Conversion Attempt
According to the allegations in the Second Amended Complaint, in 2011, Plaintiff
When Fernandez called his supervisor (unnamed in the Complaint) immediately following the EESAC vote to inform him of the prospective conversion, his supervisor warned him that "repercussions would follow." Id. ¶ 12. The next day, and for every day thereafter until the Plaintiffs were ultimately removed from the school, a District administrator was dispatched to Neva King to "monitor activities at the school." Id. ¶ 13. "District administrators" then instructed Fernandez to call a staff meeting to discuss the conversion recommendation. Id. ¶ 14. The meeting was attended by approximately fifteen "high-level officials, including members of the Superintendent's Cabinet." Id. These officials gave Neva King staff members "misleading and one-sided information about the prospective conversion that was contrary to Florida law." Id. "School District officials" threw out several more hurdles; for example, Assistant Superintendent Milagros Fornell prohibited Fernandez from rescheduling the conversion vote after the District's Chief Budget Officer provided incomplete information to Fernandez regarding Neva King's revenues. Id. ¶¶ 16-17. Ultimately, "District Administrators" decided to terminate the conversion ballot procedure. Id. ¶¶ 18-19.
2. The District's Investigation of Fernandez and Cristobol
After the conversion attempt failed, the District informed Fernandez and Cristobol that they would be subject to an investigation by the District's Civilian Investigative Unit, led by investigator Terri Chester and her superior, Julio Miranda, for allegedly attempting to influence the outcome of the conversion vote, using District time and resources to facilitate the conversion, and arranging for an unauthorized individual to address school faculty and staff regarding the conversion. Id. ¶¶ 20-21. Fernandez and Cristobol were later informed that they were "prohibited" from speaking with complainants or witnesses during the course of the investigation. Id. ¶ 21. On April 26, 2012, Chester sent a letter to select Neva King employees informing them that she had been assigned the responsibility of investigating Fernandez and Cristobol for alleged violations of School Board policies and instructing them that they were "not to contact any subject(s) or witnesses, with the intent to interfere with the investigation." Id. ¶ 22.
During the investigation, Chester interviewed Ava Goldman, the Administrative Director, Fernandez and Cristobol's supervisor, and the most frequent District administrator sent to monitor activities at Neva King. Id. ¶ 23. In that interview, Goldman stated that Fernandez and Cristobol "were not authorized to utilize District time and resources to research, plan, and direct staff to present and ask for a vote to convert" Neva King into a charter school. Id. Further, she stated that Fernandez and Cristobol were instructed not to use District time and resources to conduct those activities. Id.
On June 22, 2012, the investigation concluded with a finding of probable cause that Fernandez and Cristobol violated several School Board policies: Standards of
The School Board disposed of its disciplinary proceeding against Cristobol with the issuance of a written reprimand. Id. ¶ 34. The School Board removed Cristobol from alternate assignment status (discussed more fully infra, subection I.A.4), and continued his placement at South Dade Senior High School as assistant principal. Id. The School Board transferred Cristobol to an assistant principalship at TERRA Environmental Research Institute in June 2013. Id.
As for Fernandez, he was informed by letter in February 2013 that the School Board was rescinding his provisional reappointment and that a failure by Fernandez to request a meeting within fifteen days would result in the termination of his employment with the School Board effective March 8, 2013. Id. ¶ 35. The letter also informed him that his non-reappointment "precluded his future employment in any capacity by Miami-Dade County Public Schools." Id. Fernandez requested a meeting to contest this decision, and at that meeting, where his requests to have counsel and a court reporter present were denied, he was told that the School Board would "get back with" him regarding the possible termination of his employment. Id. ¶ 36. Not until the Florida Department of Education issued a notice to the Superintendent that there were reasonable grounds to suspect that Fernandez had been retaliated against did the School Board determine that it would not impose a written reprimand or any other formal discipline. Id. ¶ 37. On June 19, 2013, the School Board closed its disciplinary proceeding and appointed Fernandez "ESE [Exceptional Student Education] Principal of Instruction System-wide." Id.
3. The District's Investigation of Ramirez
On May 7, 2012, Goldman told Ramirez that she was also under investigation for her involvement in the conversion exploration. Id. ¶ 24. Miranda sent Ramirez a letter notifying her that the School Board was conducting an investigation and alleging that she used school time and resources to conduct "non-school related business." Id. The investigation into Ramirez concluded in July, and Ramirez received a letter informing her that based on the investigation, there was probable cause to establish that she violated several School Board policies (Standards of Ethical Conduct, Code of Ethics, Staff Network and Internet Acceptable Use and Safety, and Staff Electronic Mail) by using School Board email and resources to conduct "non-school business," i.e., using email to communicate with Fernandez, Cristobol, and other staff regarding the conversion. Id. ¶¶ 29-30.
A Conference for the Record was held on August 2, 2012, to address Ramirez's alleged violations. Id. ¶ 31. The summary of the conference stated that converting Neva King into a charter conversion school
4. The Plaintiffs' Alternative Assignments and Gag Orders
During the pendency of the investigations and disciplinary processes — beginning on May 2, 2012, for Fernandez and Cristobol and May 7, 2012, for Ramirez — each Plaintiff was reassigned from Neva King to remote District offices and given menial tasks to perform. Id. ¶¶ 38-42. The Plaintiffs were instructed not to "contact, visit, or engage in any type of communication with staff, parents, or community members from" Neva King. Id. ¶ 39. But the individuals the Plaintiffs were not to contact were never identified, which resulted in the Plaintiffs being "closed off from virtually all of the friends, colleagues, parents, business partners, and community members they had known and worked with for a number of years." Id. ¶ 43. When the investigations concluded, the gag orders were not lifted. Id. ¶ 44. A few weeks later, on July 10, 2012, legal counsel stated in an email to the Plaintiffs that the gag orders had expired and the Plaintiffs were free to speak to anyone. Id. ¶ 45. But in a reply to Fernandez's personal email account, Ana Rasco, Administrative Director of the Office of Professional Standards, instructed Fernandez that he was to adhere to the May 2, 2012, directives, which included the gag orders. Id. The District confirmed the gag orders were still in effect on July 19, 2012, during the Conference for the Record. Id. ¶ 46. In a letter dated October 26, 2012, to School Board attorney Walter J. Harvey, the Plaintiffs' counsel asked again whether the gag orders had been lifted; he received no response. Id. ¶ 47.
5. The School Board's Response to Neva King Inquiries
On May 3, 2012 — the day after Fernandez and Cristobol were removed from Neva King — Keyla Martinez, a member of Neva King's EESAC, sent an email to the School Board, in which she stated: "[T]he principal and vice-principal were removed from the school and are being treated like criminals by the Miami-Dade County Public School Board." Id. ¶ 50. She further stated that "the PTA requested an emergency meeting and the School Board has denied their entry into the school and [told the parents] that a PTA meeting would be scheduled in the near future. The parents want to know what is going on and what is going to happen with the future of their kids." Id.
On May 15, 2012, Tony Peterle, a parent of a Neva King student, appeared before the School Board, informed it about the events at Neva King, and asked it to allow the charter discussion to continue. Id. ¶ 51. A few days later, Peterle sent an email to each member of the School Board expressing his concern about the actions of the District administrators regarding the conversion attempt at Neva King. Id. ¶ 52. According to the Plaintiffs, Peterle expressed that "high ranking school officials stationed at the school spread misinformation against the conversion and presented opposing viewpoints from being discussed." Id. He also stated that at the sole parent information meeting called during the conversion attempt, only District personnel were permitted to speak. Id. He ultimately asked the School Board to prevent
On June 18, 2012, Peterle met with Dr. Marta Perez, a member of the School Board, and Walter Harvey, the School Board's attorney. Id. ¶ 53. During this meeting, Dr. Perez "admitted that the actions of the District administrators were against the law and another example of the District's `anti-charter bias.'" Id. The School Board, however, took no action. Id. ¶ 54.
6. The School Board's History of Opposition to Conversion Charter Schools
The Plaintiffs allege that the "moving force behind the School Board's response (or lack thereof)" to the Neva King conversion attempt is the School Board's "unwritten, long standing, and widespread custom against the creation of conversion charter schools." Id. ¶ 57. They contend that the Neva King events are "part of a pattern of conduct to prevent the establishment of conversion charter schools within Miami-Dade County" and that "[s]chool officials will take any measure, including violating civil rights, to support the custom in place." Id.
There are currently no conversion charter schools in Miami-Dade County. Id. ¶ 58. In 2001, Snapper Creek Elementary was the first district school in Miami-Dade County to submit an application to convert to charter status. Id. ¶ 59. At a November 14, 2001, meeting, the School Board discussed the merits of this conversion; School Board members stated "there will be no conversions," "conversions should only be for inner-city schools," "conversions should only occur in D and F rated schools," and allowing a conversion charter school was "opening a can of worms." Id. ¶¶ 60-61. The School Board then denied Snapper Creek Elementary's application to become a charter school. Id. ¶ 62. The school appealed the denial, the Governor's cabinet remanded the denial to the School Board for reconsideration, and the School Board again denied the application. Id.
On January 8, 2013, two parents with children enrolled at Key Biscayne K-8 Center, a Miami-Dade County public school, sent an email to the school's principal requesting her to facilitate a vote to convert the school into a conversion charter school. Id. ¶ 63. In response, the District sent a letter stating that the school principal had not authorized the use of her name in connection with the conversion effort, and that District officials, rather than the principal, would schedule the vote. Id. ¶ 64. District officials then dominated the conversion effort at that school, disseminating flyers regarding the prospective conversion that "presented misleading and incorrect information about funding, employee benefits, and available resources if the school converted to a charter school." Id. ¶ 65. At a parent information session convened to discuss the conversion, District officials again dominated the question-and-answer session, and proponents of the conversion were not permitted to speak. Id. ¶ 66. The District then conducted a teacher and parent vote, and both groups voted not to convert. Id. ¶ 67.
Finally, in May 2012, after the Plaintiffs were removed from Neva King, Miami-Dade County School District Superintendent Alberto Carvalho made an unannounced visit to Neva King. Carvalho said in the presence of office staff, "[T]his school is a Miami-Dade County Public School and it is going to remain a Miami-Dade County Public [S]chool and anybody who wants to change that will have to go through me." Id. ¶ 68.
1. Unlawful Reprisal Proceedings
During the course of the District's investigation of the Plaintiffs, Marian
The DOAH's final administrative hearing took place in January and February 2014. At its conclusion, the administrative law judge entered a recommended order finding that the District committed an unlawful reprisal against each Plaintiff in violation of Fla. Stat. § 1002.33(4). Id. ¶ 45. The Department of Education adopted the recommended order entirely, finding that the "Miami-Dade County School Board violated section 1002.33(4)(a)" with respect to each Plaintiff. Id. Fernandez was awarded out-of-pocket expenses and lost bonuses totaling over $10,000, but neither Cristobol nor Ramirez were awarded monetary relief. Id. The Plaintiffs were awarded costs and attorneys' fees, and the administrative action was remanded to DOAH for a hearing on these issues. Id.; see also generally Def.'s Mot. Ex. A (the Department's "Final Order").
2. Proceedings in this Court
The Plaintiffs filed a complaint in this Court on May 20, 2015 [ECF No. 1], and amended that complaint on July 9, 2015 [ECF No. 11]. In their First Amended Complaint, the Plaintiffs brought a single claim for violation of their First Amendment rights under 42 U.S.C. § 1983, alleging that the School Board infringed on their freedoms of speech and association and subjected them to adverse employment actions. The School Board filed a motion to dismiss on July 22, 2015, arguing, inter alia, that the Plaintiffs failed to state a claim for liability under the strictures of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) [ECF No. 14]. On December 29, 2015, the Court granted the School Board's motion and dismissed the First Amended Complaint without prejudice, concluding that the Plaintiffs' allegations did not meet the requirements of Monell, because they "read as an attempt to hold the School Board liable for the actions of District employees and officials in unlawfully retaliating against them for attempting to convert a public school into a charter school." Fernandez v. Sch. Bd., No. 15-21915, 2015 WL 9474616, at *4 (S.D.Fla. Dec. 29, 2015).
Plaintiffs filed their Second Amended Complaint on January 25, 2016 [ECF No. 31]. In response, the School Board has again moved to dismiss. The School Board, as it did before, raises four arguments: (1) this action is barred by res judicata; (2) this action is barred by collateral estoppel; (3) the Plaintiffs fail to state a Section 1983 claim for municipal liability against the School Board; and (4) the Plaintiffs fail to state a claim for a violation of their First Amendment rights. The Plaintiffs oppose the motion.
II. LEGAL STANDARD
To survive a motion to dismiss, a claim "must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face,'" meaning that it must contain "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662,
The School Board first argues that the doctrine of res judicata applies to bar the Plaintiffs' claims. It contends that the Plaintiffs are attempting to relitigate the claims of retaliation that were already decided on the merits by the DOAH in the unlawful reprisal action.
The doctrine of res judicata (or claim preclusion) "prohibits successive litigation of the very same claim by the same parties." Whole Woman's Health v. Hellerstedt, ___ U.S. ___, 136 S.Ct. 2292, 2305, 195 L.Ed.2d 665 (2016) (citation and internal quotation marks omitted). This prohibition bars "the parties or their privies from relitigating issues that were or could have been raised" in an action that resulted in a final judgment on the merits. Allen v. McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). In the Eleventh Circuit, a party seeking to invoke this doctrine bears the burden to establish its propriety by satisfying four initial elements: "(1) the prior decision must have been rendered by a court of competent jurisdiction; (2) there must have been a final judgment on the merits; (3) both cases must involve the same parties or their privies; and (4) both cases must involve the same causes of action." Kaiser Aerospace & Elecs. Corp. v. Teledyne Indus., Inc. (In re Piper Aircraft Corp.), 244 F.3d 1289, 1296 (11th Cir.2001). If the party raising res judicata satisfies these elements, the court next determines whether the claim in the new suit was or could have been raised in the prior action; if yes, res judicata applies. Id.
That said, "[i]f even one of these elements is missing, res judicata is inapplicable." Id. The Court, therefore, need not undergo an analysis of every element, because it agrees with the Plaintiffs that they did not raise their Section 1983 claim alleging civil damages in the unlawful reprisal proceeding, nor could they have. "Administrative agencies are creatures of statute and have only such powers as statutes confer." State ex rel. Greenberg v. Fla. State Bd. of Dentistry, 297 So.2d 628, 634 (Fla. 1st DCA 1974). The statute governing unlawful reprisal, Fla. Stat. § 1002.33, provides, first, that "[n]o district school board ... shall take unlawful reprisal against another district school board employee because that employee is either directly or indirectly involved with an application to establish a charter school." Fla. Stat. § 1002.33(4)(a). Should such an unlawful reprisal be alleged to have occurred (including disciplinary or corrective action, adverse transfer or reassignment, suspension, demotion, dismissal, reduction in pay or benefits, etc.), the statute directs that an employee file a complaint with the Department of Education. Id. If the Department determines that the complaint demonstrates
The DOAH has self-described its power (and the limits of its power) thusly:
Fla. Elec. Comm'n v. Davis, No. 08-6413, 2009 WL 2009215, at *1 (Fla. Div. Admin. Hrgs. July 9, 2009), aff'd, 44 So.3d 1211 (Fla. 1st DCA 2010). Under the Florida Constitution, only the Florida Legislature can confer on executive branch entities the power to levy civil penalties. See Fla. Const. art. I § 18 ("No administrative agency, except the Department of Military Affairs in an appropriately convened court-martial action as provided by law, shall impose a sentence of imprisonment, nor shall it impose any other penalty except as provided by law."). The Florida Legislature
Because the DOAH does not possess the power to preside over civil actions, the Plaintiffs' Section 1983 claims necessarily could not have been raised in the unlawful reprisal proceeding. Res judicata, therefore, does not attach, and the motion to dismiss on this ground is denied.
The School Board also contends that the Plaintiffs are collaterally estopped from asserting a claim alleging unlawful retaliation based on the fact that the claim was litigated and decided in the unlawful reprisal proceeding. The Court disagrees.
Collateral estoppel (otherwise known as issue preclusion) "serves to bar relitigation of identical issues that have already been fully and fairly litigated." United States v. Robinson, No. 12-20319, 2012 WL 3984786, at *5 (S.D.Fla. Sept. 11, 2012) (citing Quinn v. Monroe County, 330 F.3d 1320, 1328 (11th Cir.2003)). On this issue, Robinson, relied upon by the Plaintiffs, is instructive. There, the United States government filed a case in this District against the defendant physician for civil penalties for violations of the Controlled Substances Act, 21 U.S.C. §§ 801-904. The government had previously instituted administrative proceedings before the DEA to revoke the defendant's DEA registration, claiming that he violated recordkeeping requirements of the Act. After an administrative hearing, the ALJ issued a decision that recommended against revoking the registration but rather that it be maintained on a conditional basis. The defendant moved to dismiss the civil suit, arguing that it was barred by res
Id. at *6.
This Court sees no reason to depart from the reasoned analysis in Robinson. The Court has just determined that the Section 1983 claim at issue in this case could not be adjudicated before the DOAH and res judicata did not attach. If collateral estoppel applied at all, it would apply only to the relitigation of the factual issues that were determined by the ALJ and adopted by the Department — namely, that the School Board committed an unlawful reprisal against the Plaintiffs. This would serve only to support the Plaintiffs' position that the School Board violated their First Amendment rights. Accordingly, the motion to dismiss on the basis of collateral estoppel is denied.
Next, the School Board argues that the Plaintiffs have again failed to state a claim against it for municipal liability under Section 1983. The Court provided the operative legal framework in its decision on the School Board's first motion to dismiss:
Fernandez, 2015 WL 9474616, at *3-4. In their First Amended Complaint, the Plaintiffs' allegations in support of their custom theory appeared only in a single paragraph.
First Am. Compl. ¶ 49. The Court found that such a conclusory assertion, unsupported by factual allegations, could not survive Twombly and Iqbal scrutiny. Fernandez, 2015 WL 9474616, at *4. The First Amended Complaint alleged "specific actions taken by the Superintendent's cabinet, other District officials and employees, or `the District' (in general terms), but it allege[d] no facts involving actions taken by the actual School Board itself, the only entity with final policymaking authority for the purposes of stating a claim for relief under Monell." Id. (citing Andrade v. Miami Dade County, No. 09-23220, 2011 WL 4345665, at *8 ("The mere mention of policy, practice or custom is not enough, for a plaintiff must do something more than simply allege that such an official policy [or custom] exists.")). Furthermore, the Court admonished the Plaintiffs for failing to allege "that the School Board reviewed and ratified the decisions of any of the
The School Board forcefully argues that the allegations pertaining to the Snapper Creek conversion could have no bearing on whether a prohibited custom exists. But if the School Board's alleged "anti-charter bias" is as pervasive as the Plaintiffs contend, the fear of reprisal from the School Board could have chilled any number of potential conversion efforts. The Court will certainly not penalize the Plaintiffs by dismissing their claim simply due to the fact that attempts to convert a public school into a charter school in Miami-Dade County have been exceedingly rare. Consequently, the Court finds that the Plaintiffs have sufficiently alleged that a custom exists.
Even had the Plaintiffs not established the existence of a custom, their allegations pertaining to their own situation state a claim under a ratification theory, as well. See Garvie, 366 F.3d at 1189 (holding that a municipal entity, "by actively endorsing or approving the conduct of its employees or officials, may be held responsible for it"). After Fernandez and Cristobol were removed from Neva King, Keyla Martinez of the Neva King EESAC sent an email to the School Board stating that they were "being treated like criminals" by the School Board. Second Am. Compl. ¶ 50. Martinez also claimed that the School Board denied parents entry into Neva King who wished to hold an emergency PTA meeting to discuss the fallout from the removal of the principal and vice-principal from their children's school. Id. Even more damning against the School Board are the allegations regarding Tony Peterle, the Neva King parent who appeared personally before the School Board, informed it about the events at Neva King, and asked that it allow the charter discussion to continue. Id. ¶ 51. He also emailed the School Board members individually to express his concern about the District administrators' conduct at Neva King. Id. ¶ 52. And he met with Dr. Perez, a School Board member, who admitted, in the presence of School Board counsel, "that the actions of the District administrators were against the law." Id. ¶ 53. Accepting these well-pleaded allegations as true, the Court is satisfied that the Plaintiffs have plausibly alleged that the School Board actively endorsed or approved the conduct of its employees or officials who punished the Plaintiffs.
The Plaintiffs have met their burden at this stage of the litigation to "demonstrate
Finally, the School Board argues that the Plaintiffs have failed to state a claim for violations of their free speech rights. "Speech by citizens on matters of public concern lies at the heart of the First Amendment." Lane v. Franks, ___ U.S. ___, 134 S.Ct. 2369, 2377, 189 L.Ed.2d 312 (2014). "Government regulation of employees' speech differs from its regulation of the speech of its citizenry," however, because the government, "[a]cting as an employer,... is afforded broad discretion in its employment decisions." Boyce v. Andrew, 510 F.3d 1333, 1341 (11th Cir.2007) (per curiam). But "[a] government employer may not demote or discharge a public employee in retaliation for speech protected by the First Amendment," as a public employee "does not `relinquish the First Amendment rights he would otherwise enjoy as [a citizen] to comment on matters of public interest.'" Alves v. Bd. of Regents of Univ. Sys., 804 F.3d 1149, 1159 (11th Cir. 2015) (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)), cert. denied, ___ U.S. ___, 136 S.Ct. 1838, 194 L.Ed.2d 829 (2016); see also Lane, 134 S.Ct. at 2377 ("[P]ublic employees do not renounce their citizenship when they accept employment, and [the Supreme Court] has cautioned time and again that public employers may not condition employment on the relinquishment of constitutional rights.").
As they are public employees, the Plaintiffs' First Amendment claims are subject to a four-stage analysis. Moss v. City of Pembroke Pines, 782 F.3d 613, 617 (11th Cir.2015). First, the Court must consider whether their speech was made as a citizen and whether it implicated a matter of public concern. Id. If this requirement is satisfied, the Court must weigh the Plaintiffs' First Amendment interests against the School Board's interest in regulating their speech to promote "the efficiency of the public services it performs through its employees." Id. at 618 (quoting Carter v. City of Melbourne, 731 F.3d 1161, 1168 (11th Cir.2013)). These two questions are questions of law for the Court to decide. Id. If the Court finds that the speech is protected, the analysis proceeds to stage three, which requires the Plaintiffs to show that their speech was a substantial motivating factor in the School Board's adverse employment action. Id. And if the Plaintiffs make this showing, the burden shifts to the School Board to prove that it would have reached the same decision even in the absence of the protected speech. Id. Because these final two questions, which address the casual link between the Plaintiffs' speech and the alleged adverse employment actions, are questions of fact, a jury must resolve them unless the evidence is undisputed. Id.
The School Board's motion to dismiss raises only the first part of the first stage of the analysis — whether the Plaintiffs' speech pertaining to the Neva King
Carollo v. Boria, 833 F.3d 1322, 1329 (11th Cir.2016) (emphases added) (footnote omitted). In Garcetti, the Supreme Court explained that a court must make a "practical" inquiry to determine whether speech "owes its existence to" an employee's professional duties. 547 U.S. at 424, 126 S.Ct. 1951. Practical factors that may be relevant to, but not dispositive of, that inquiry include the employee's job description, whether the speech occurred at the workplace, and whether the speech concerned the subject matter of the employee's job. Moss, 782 F.3d at 618.
The Court is unable to undergo such an inquiry at this juncture for several reasons. First, even had the Plaintiffs alleged the content of their respective job descriptions (which they have not), or had the School Board submitted those job descriptions in a form the Court could consider in ruling on a motion to dismiss (which it has not), "[i]t is not appropriate at the motion to dismiss stage for [a court] to interpret" an employee's job description. Carollo, 833 F.3d at 1330; see also Garcetti, 547 U.S. at 424-25, 126 S.Ct. 1951 ("Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform."). Second, because the record has not yet been developed, the Court cannot know whether the speech occurred at the workplace and, regardless, cannot make any inference detrimental to the Plaintiffs or their claims at this stage by assuming that all of the speech took place at Neva King. Third, the Second Amended Complaint does not allege the specific content of the Plaintiffs' speech,
And finally, the subject matter of the Plaintiffs' jobs has not yet been defined, so the Court cannot determine whether any speech was made "in accordance with or in furtherance of the ordinary responsibilities of [the Plaintiffs'] employment" or if the speech merely "concerns the ordinary responsibilities of [their] employment." Alves, 804 F.3d at 1162. In Garcetti, the Supreme Court declined to "articulate a comprehensive framework for defining the scope of an employee's duties in cases where there is room for serious debate" as to what those duties are. 547 U.S. at 424, 126 S.Ct. 1951. There is such "room for serious debate" here. Indeed, the Court need look no further for justification of a debate than several statements made by the District's own administrators during the Plaintiffs' disciplinary investigations: (1) Fernandez and Cristobol's Conference for the Record summary stated that "converting Neva King ... into a charter conversion school
The School Board contends that the Plaintiffs' First Amendment claims must fail because "the issue of whether an employee's involvement in activities in furtherance of a school conversion (during working hours) is part of the employee's duties has been settled in the affirmative by" the Eleventh Circuit's decision in D'Angelo v. School Board of Polk County, 497 F.3d 1203 (11th Cir.2007). Def.'s Reply at 7. In D'Angelo, the plaintiff, D'Angelo, was hired as the principal of Kathleen High School, a struggling school in Polk County, Florida. After D'Angelo engaged in a failed attempt to convert Kathleen High to a charter school, the school district elected not to renew his contract, thus ending his employment. D'Angelo filed a complaint in federal court alleging that the Polk County School Board terminated him in retaliation for his exercise of rights protected by the First Amendment. Id. at 1206-07. At trial, D'Angelo testified that charter conversion was not "one of [his] assigned duties," but admitted that "[i]t was incumbent upon [him] to investigate Charter and to move towards Charter for the betterment of the students at Kathleen High School." Id. at 1206 (alterations in original). He further explained that his "number one duty, and the duty of any principal, [wa]s to do whatever [he could] for the kids." Id. (alterations in original). After the close of his case-in-chief, the school board moved for judgment as a matter of law. The district court granted the motion, concluding that, under Garcetti, D'Angelo's speech was not protected by the First Amendment.
Thus, what was dispositive in D'Angelo was the fact that D'Angelo
The School Board also argues, based on D'Angelo, that
The Court disagrees. The critical distinction between D'Angelo and this case, for purposes of this motion, is the posture of the two cases. The Eleventh Circuit in
* * *
Given that this case is in its earliest stages; given that the Court must presently view the allegations in the complaint in the light most favorable to the Plaintiffs, Bishop, 817 F.3d at 1270; given that there is "room for serious debate" as to the scope of the Plaintiffs' employment duties, Garcetti, 547 U.S. at 424, 126 S.Ct. 1951; given that the District and School Board have potentially conflicting interpretations of the scope of the Plaintiffs' duties; given that it is presently unclear to the Court what exactly the Plaintiffs' speech entailed; and given that undergoing Garcetti's practical inquiry into the Plaintiffs' duties would require a much more developed factual record than is presently before the Court, it would be inappropriate for the Court to conclude at this stage, as a matter of law, that the Plaintiffs did not speak as citizens.
"Discovery will illuminate exactly" what speech the Plaintiffs' engaged in and what their responsibilities were, which will enable the Court to make an informed determination at a later stage of the litigation. Carollo, 833 F.3d at 1330. Thus, "with respect to the only question before [the Court] under Rules 8(a) and 12(b)(6) — whether, taking the factual allegations in the complaint as true, the complaint states a claim — [the Court] find[s] it plausible under Iqbal and Twombly," id., that the Plaintiffs spoke as citizens and not pursuant to, in accordance with, or in furtherance of their ordinary job responsibilities when they engaged in speech regarding the Neva King conversion effort.
Because the School Board's motion raises no other issue for consideration regarding the substance of the Plaintiffs' First Amendment claims, the Court's analysis need not proceed further. Accordingly, the motion to dismiss on this final ground is denied.
Based on the foregoing, it is
"In general, [courts] do not consider anything beyond the face of the complaint and documents attached thereto when analyzing a motion to dismiss under Rule 12(b)(6)." Fuller v. SunTrust Banks, Inc., 744 F.3d 685, 695 (11th Cir.2014) (citation and internal quotation marks omitted). Specifically in this instance, "[a]n amended pleading supersedes the former pleading; the original pleading is abandoned by the amendment and is no longer a part of the pleader's averments against his adversary." Pintando v. Miami-Dade Hous. Agency, 501 F.3d 1241, 1243 (11th Cir.2007). Although courts, under certain conditions, may consider outside evidence, such as complaints filed in
That said, the rule governing amended pleadings superseding former pleadings is a "general" one. Pintando, 501 F.3d at 1243. The Court looks to several decisions from courts in the Second Circuit, which have held that courts "[i]n rare circumstances ... will consider prior pleadings ... when the plaintiff directly contradicts the facts set forth in his original complaint." 2002 Lawrence R. Buchalter Alaska Trust v. Phila. Fin. Life Assur. Co., 96 F.Supp.3d 182, 206 (S.D.N.Y.2015). In Colliton v. Cravath, Swaine & Moore, LLP, for example, the court accepted the facts as alleged in the plaintiff's original complaint as true for the purposes of a motion to dismiss where the plaintiff made a "transparent attempt... to amend his pleading[s] in order to avoid a dispositive defense" raised by the defendant and the amended complaint directly contradicted the original complaint. No. 08-0400, 2008 WL 4386764, at *6 (S.D.N.Y. Sept. 24, 2008), aff'd, 356 Fed.Appx. 535 (2d Cir.2009) (per curiam). In these "rare occasion[s]," a court may "disregard the contradictory and manipulated allegations of an amended pleading." Barris v. Hamilton, No. 96-9541, 1999 WL 311813, at *2 (S.D.N.Y. May 17, 1999).
Here, the Plaintiffs' Complaint (Compl. ¶¶ 29, 43-45) and First Amended Complaint (First Am. Compl. ¶¶ 29, 43-45) contain allegations regarding the unlawful reprisal proceedings before the Florida Department of Education. In response to both versions of the complaint, the School Board moved to dismiss, arguing (in part) that the Plaintiffs' claims were barred by the doctrines of res judicata and collateral estoppel, based on the unlawful reprisal proceedings. The Second Amended Complaint inexplicably removes all allegations regarding the unlawful reprisal proceedings — allegations that are, of course, integral to the School Board's argument that the Plaintiffs' claims are barred by res judicata and collateral estoppel. As the court found in Colliton, this Court finds that the removal of those allegations is a similarly transparent attempt to amend the complaint (in this circumstance, to avoid the res judicata and collateral estoppel defenses raised by the School Board). And while the allegations in the Second Amended Complaint do not explicitly