United States District Court, E.D. Virginia, Richmond Division
JOHN A GIBNEY, Jr., District Judge.
This matter comes before the Court on the defendant's motion to dismiss the amended complaint. (Dk. No. 9.) The amended complaint alleges violations of the free speech rights of the plaintiff and an unnamed third party. It also attempts to assert a violation of the plaintiff's Fourteenth Amendment liberty interests.
The Court will GRANT the defendant's Motion to Dismiss. The plaintiff has not engaged in protected speech, so her personal First Amendment claim fails. She lacks standing to enforce the rights of unnamed third parties, so her First Amendment claim on behalf of others fails. Lastly, her liberty interest claim fails because the defendant has not publicized harmful information about her nor did he make any harmful comments in conjunction with her termination.
I. Statement of Facts and Scope of Review
In ruling on a motion to dismiss, the Court must accept the plaintiff's factual allegations as true, but does not have to do the same with her legal conclusions. See De Sole v. United States, 947 F.2d 1169, 1171 (4th Cir. 1991). The Court, however, need not accept bare-bones factual conclusions. The complainant must offer more than "labels and conclusions' or a formulaic recitation of the elements of a cause of action' to overcome a motion to dismiss. Ashcroft v. lqbal, 556 U.S. 662, 678, 129 S.Ct. 1937 (2009) (quoting Bell Atl. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007)); Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255-56 (4th Cir. 2009).
Viewed under this standard, the Amended Complaint alleges the following facts:
The plaintiff, Yuvonka Lewis, worked as a deputy sheriff in the office of Richmond City Sheriff C.T. Woody, the defendant. (Dk. No. 8 at ¶ 6.) In September 2011, a local newspaper, the Richmond Times-Dispatch, began publishing a series of articles detailing nepotism in Sheriff Woody's practice of hiring family members. (Dk. No. 8 at ¶ 11.) Convinced that the information in the articles had come from within the Sheriffs Office, Woody began an investigation to find the leak. (Dk. No. 8 at ¶ 24.) As part of the investigation, Sheriff Woody interviewed Lewis about her potential involvement. (Dk. No. 8 at ¶ 28.) During her interview, Lewis repeatedly denied the allegations, going so far as to take a polygraph examination. (Dk. No. 8 at ¶ 32.) Several weeks after her interview, Woody sent Lewis, an at-will employee, a letter firing her. (Dk. No. 8 at ¶ 43.) The letter did not describe any specific behavior that had caused Lewis' termination, instead referring to a generic violation of "SOP 310." (Dk. No. 8 at ¶ 43.)
Lewis filed a charge of discrimination with the EEOC alleging wrongful termination. (Dk. No. 8 at 150.) During the investigation, the EEOC asked Woody to provide a list of his reasons for firing Lewis. (Dk. No. 8 at ¶ 51.) Woody's subsequent response contained several accusations of dishonesty. (Dk. No. 8 at ¶ 51.) The EEOC closed the investigation and gave Lewis a right to sue letter. Lewis eventually chose not to pursue a claim under Title VII, and, instead, brought this case. Woody's response to the charge of discrimination forms the basis of the plaintiff's liberty interest claim.
A. Count I: First Amendment Retaliation
1. Personal First Amendment Claim
Public employees do not shed their First Amendment rights by virtue of their employment with the government. Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684 (1983). As private citizens, they may make public statements about matters of public interest, without fear of retaliation. "At the most basic level, a public employer may not fire an employee simply because the employee spoke out publicly, whether the speech occurs at a meeting of the local governing body, in a letter to the editor, or on a street corner." Silverman v. Town of Blackstone, VA, 843 F.Supp.2d 628, 633 (E.D. Va. 2012)
Before a public employee can assert a retaliation claim under the First Amendment, however, she must have exercised her right of free speech. Goldsmith v. Mayor and City Council of Baltimore, 987 F.2d 1064, 1071 (4th Cir. 1993). Lewis says she never spoke to any reporters, and that some other unidentified person leaked the information. Essentially, she asks the Court to hold Woody liable because he fired her for someone else's public speech. The burden of showing that the First Amendment protects her speech falls on the plaintiff. Bland v. Roberts, 730 F.3d 368, 373-74, 386 (4th Cir. 2013). Unless the plaintiff specifically alleges that some sort of "expressive activity" occurred, the protections of the First Amendment do not apply. Smith v. Frye, 488 F.3d 263, 266 (4th Cir. 2007).
In Frye, the defendant, a county clerk, fired the plaintiff because he thought she planned to campaign for her son, the defendant's opponent in an upcoming election. Id. at 265-66. In upholding the district court's dismissal of her First Amendment retaliation claim, the Fourth Circuit held that "Ms. Smith's claim failed because she had not spoken or expressed herself in any way. We find no error in the district court's analysis on this issue...." Id. at ...