Amos v. Kalama School District

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 LINDSAY AMOS, CASE NO. 3:24-cv-05335-DGE 11 Plaintiff, ORDER GRANTING IN PART 12 v. AND DENYING IN PART MOTION FOR SUMMARY 13 KALAMA SCHOOL DISTRICT et al., JUDGMENT (DKT. NO. 22) 14 Defendant. 15 16 I. INTRODUCTION 17 Plaintiff Lindsay Amos brings this action against her former employer Kalama School 18 District and several District employees alleging that she is a whistleblower who was retaliated 19 against for exposing unlawful practices. She brings claims under the First Amendment, the 20 Washington Local Government Whistleblower Protection Act, and state common law. Before 21 the Court is Defendants’ motion for summary judgment. The Court GRANTS the motion in part 22 and DENIES in part. Specifically, the Court holds that the speech Plaintiff claims was the basis 23 for the retaliation is protected under the First Amendment, and that there is a material question of 24 1 fact as to whether the speech was a substantial or motivating factor of her involuntary transfer, 2 precluding summary judgment. However, the Court finds that Plaintiff’s claim under the 3 Washington Local Government Whistleblower Protection Act is barred or abandoned, and grants 4 summary judgment as to that claim. As to Plaintiff’s claim of constructive, wrongful discharge 5 in violation of public policy, Defendant only argued for summary judgment on that claim in a 6 reply brief. Therefore, the Court will give Plaintiff an opportunity to respond before ruling on 7 that issue. 8 II. PROCEDURAL HISTORY 9 Plaintiff initiated this action on May 3, 2024 (see Dkt. No. 1), but no motion to dismiss 10 was filed. Accordingly, this motion for summary judgment is the first time this Court is 11 reviewing Plaintiff’s claims. 12 Plaintiff had a prehearing conference on her state law whistleblower act claim set before 13 an Administrative Law Judge (“ALJ”) on October 10, 2023. (Dkt. No. 23-1 at 77.) Plaintiff 14 failed to appear. The ALJ then held her in default. (Id.) Plaintiff then moved to vacate that 15 default, which the ALJ denied. (Id. at 82–84.) The ALJ explained that the reason Plaintiff failed 16 to appear—“mistaken calendaring control by failure of [counsel’s] iPhone alarm to notify him of 17 the prehearing conference time”—was not a circumstance beyond the counsel’s control and did 18 not establish good cause for failure to appear. (Id. at 84.) 19 III. RELEVANT FACTS 20 Plaintiff Lindsay Amos began working for the Kalama School District (“KSD”) as a 21 classroom teacher in 2014, at the Kalama Elementary School. (Dkt. No. 22 at 2.) In 2016, she 22 became a reading specialist. (Id.) Being a reading specialist was her “dream job.” (Dkt. No. 26 23 at 2.) 24 1 Problems began to arise between Plaintiff and her employer starting in the 2022–2023 2 school year. In December 2022, Defendant Principal Billina Dolezal and Assistant Principal 3 Tiffany Fechter told Plaintiff to stop using a particular reading curriculum, Fountas & Pinnell, 4 and switch to a different system. (Dkt. Nos. 22 at 3, 23-1 at 7–8.) Plaintiff expressed “shock” 5 about the lack of communication regarding this change and “concern” about the new program. 6 (Dkt. No. 23-1 at 7–8.) 7 Starting in January 2023, Plaintiff began providing Learning Assistance Program 8 (“LAP”) instruction to a student, referred to by Plaintiff as “Girl #1.” (Dkt. No. 25 at 2.) LAP is 9 distinct from an Individualized Education Program (“IEP”); to provide the latter, a teacher must 10 be trained in Specialty Designated Instruction (“SDI”), which Plaintiff was not. (See id.) 11 Plaintiff became concerned that Defendants were not properly implementing the IEP by counting 12 her LAP instruction time towards Girl #1’s IEP; in other words, Plaintiff was concerned that Girl 13 #1 was not receiving the full amount of IEP instruction that she was entitled to. (See id. at 2, 4– 14 5; Dkt. No. 26 at 2.) Also in January 2023, Plaintiff was newly tasked with creating 15 paraeducator schedules for reading interventions. (Dkt. No. 22 at 3.) But around the same time, 16 Principal Dolezal apparently grew displeased with Plaintiff’s job performance. Dolezal, Fechter, 17 and Plaintiff had a meeting (entitled “growth goal meeting”) which grew contentious when 18 Dolezal questioned Plaintiff’s understanding of the LAP program and asked why Fechter had to 19 do aspects of Plaintiff’s job. (Id; Dkt. No. 23-1 at 23–25.) Dolezal also accused Plaintiff of “not 20 supporting para[educators] or teachers” and Plaintiff pushed back on those concerns. (Dkt. No. 21 23-1 at 29.) Plaintiff felt “personally attacked,” but the meeting “ended on a positive note” when 22 Plaintiff was asked to cover transitional kindergarten specialist time. (Id. at 25.) After the 23 meeting, it was agreed by email that Fechter would assist Plaintiff in preparing materials and 24 1 there would be weekly monitoring. (Dkt. Nos. 22 at 3; 23-1 at 47.) Plaintiff spoke with her 2 union representative and then with Dolezal about a new evaluation plan. (Dkt. No. 23-1 at 25– 3 26.) 4 In March 2023, conditions escalated. On March 15, Plaintiff had a meeting with special 5 education teacher Elizabeth Sheldon and other colleagues, where they discussed IEP issues. 6 (Dkt. No. 25 at 1–2.) During that meeting, it was agreed that Plaintiff would no longer be 7 serving Girl #1, memorialized in an email from Sheldon. (Dkt. No. 23-1 at 31; 29-1 at 78.) 8 Plaintiff characterized it as a “great meeting, very positive.” (Dkt. No. 23-1 at 31.) But after 9 reaching the agreement that Plaintiff would no longer be serving that student, Sheldon asked 10 (according to Plaintiff) “how am I going to account for those IEP minutes?” (Id.) For Plaintiff, 11 “my red flag went off, like, whoa, whoa, whoa, whoa, whoa” because “when I was serving [the 12 student], I was unaware that her core instructional minutes were counting towards her IEP. And 13 that cannot happen in LAP because I did not have any SDI from Ms. Sheldon.” (Id.)1 After 14 leaving the meeting, Plaintiff stated that she spoke with a school psychiatrist named Austin 15 Smith, who shared her concerns, and she called a co-worker after school, Teresa Burns, who also 16 shared her concerns. (Id. at 32; see also Dkt. No. 26 at 2–3.) Plaintiff stated that “at this point, I 17 did not feel comfortable going to Billina [Dolezal] or Tiffany [Fechter] because things had gone 18 south for so long,” so she instead “did what teachers are allowed to do, and that's contact 19 OSPI”—the Washington Office of Superintendent of Public Instruction. (Dkt. No. 23-1 at 33.) 20 Plaintiff characterized OSPI as a “go-to for seeking information,” akin to an “insurance person” 21 22 1 Sheldon was asked in deposition if “when Lindsay was added on to [redacted’s] team, IEP team in January 2023, it was your understanding that [redacted] would be getting her – would be 23 getting some of her IEP minutes from Lind[s]ay Amos; correct?” and Sheldon responded “correct” and further stated this understanding came from Fechter. (Dkt. No. 29-1 at 37–38.) 24 1 seeking advice from “the insurance commissioner.” (Id.) Plaintiff also stated she was never told 2 not to contact OSPI. (Id. at 38.) 3 Plaintiff sent an email to OSPI on March 16, 2023 at 12:12 p.m., which stated: “I am 4 seeking clarification about IEP service minutes. If a child is on an IEP and it states that they are 5 to receive 60 minutes of reading, do LAP services count towards those minutes? Or are the LAP 6 minutes in addition to the 60 minutes? I want to make sure we are in compliance with all of 7 this.” (Dkt. No. 23-1 at 52.) The next day, Plaintiff received a response from Jaimee Kidder of 8 OSPI, who explained that a student with an IEP could receive SDI in an LAP group, but only if 9 the instructor was appropriately qualified. (See id.) Plaintiff believed this confirmed her 10 suspicions; LAP instruction provided by Plaintiff could not count towards a student’s IEP time, 11 because Plaintiff was not a certified instructor. (See Dkt. No. 26 at 3.) Plaintiff shared this 12 information with Burns sometime between March 18 and 21. (Id.at 5.) Plaintiff stated she had 13 no objection to “double-dosing,” meaning providing a student with both IEP and LAP time, but 14 her concern was that the students at issue were “not considered double-dosed” and so their time 15 was not being properly accounted for. (See Dkt. No. 23-1 at 34.) 16 On March 27, 2023, Burns stopped by Plaintiff’s room and asked her to forward a copy 17 of the OSPI email to her, which Plaintiff did that morning at 11:15 a.m. (Dkt. Nos. 26 at 5; 29-1 18 at 73.) Burns then forwarded it on to Fechter, the same day at 12:27 p.m. (Dkt. No. 29-1 at 74.) 19 At 2:05 p.m. Fechter sent it on to Plaintiff’s union representative Flowers, writing “I checked and 20 the students in LAP are not being served their IEP minutes there according to Lizzie” [apparently 21 a reference to Elizabeth Sheldon] and at 3:24 p.m. Fechter followed up: “To clarify they are 22 being served their IEP minutes with Lizzie but not in LAP. That is an extra intervention they are 23 receiving to support their needs.” (Dkt No. 29-1 at 62.) Earlier on the same day, at 7:40 a.m., 24 1 Dolezal began drafting a letter to Plaintiff involuntarily transferring her from reading specialist 2 to a first-grade classroom teaching position. (Dkt. Nos. 22 at 5; 23-1 at 58.) Dolezal worked on 3 the letter between March 27 and March 30, sharing it with Fechter and a union representative, 4 Kendi Flowers, both on March 27. (Dkt. Nos. 22 at 5; 23-1 at 58–63.) 5 On March 29, Plaintiff states she was called into a meeting with Dolezal, Fechter, and 6 Burns, which “was unexpectedly very hostile” and the reassignment of Girl #1 was reversed; 7 Plaintiff raised concerns about counting her LAP minutes for this student’s IEP time, but the 8 content of the OSPI email was not discussed. (Dkt. Nos. 26 at 5–6; 29-1 at 77.) Dolezal 9 acknowledged that she did ask Plaintiff why she went first to OSPI rather than discussing the 10 issue with Sheldon, because it was “staff norms” to “seek clarification when we are confused,” 11 but stated that it was “[n]ot that [Plaintiff] couldn’t go to OSPI.” (Dkt. No. 31-1 at 28–29.) 12 Dolezal denied being upset about Plaintiff talking to OSPI, rather Dolezal was “seeking 13 clarification.” (Id.) 14 On March 30, Plaintiff received the involuntary transfer letter. (Dkt. No. 23-1 at 68.) 15 The same day, Plaintiff was called into a meeting with Dolezal and her union representative 16 Flowers, where the news was delivered. (Dkt. Nos 26 at 6; 28 at 5.) The letter is signed by 17 Dolezal and states that while “I have respect for you as an educator and appreciate the work you 18 have put into our school . . . . [o]ver this past year it has become evident that your vision for LAP 19 programing and the requirements of LAP laid out by OSPI differ fundamentally.” (Dkt. No. 23- 20 1 at 68.) It further states that “we are still hearing that you are requesting the lowest students be 21 served outside of LAP, or not served at all,” and that Plaintiff failed to collaborate with other 22 staff as requested. (Id.) The letter acknowledged that the action was an involuntary transfer. 23 (Id.) However, the move maintained her same level of salary. (Dkt. No. 22 at 5.) KSD 24 1 superintendent Eric Nerison approved the transfer. (Dkt. No. 23-1 at 72.) Plaintiff filed a 2 grievance alleging retaliation, but Nerison’s successor, Jennifer McCallum, declined to reverse 3 his decision. (Id. at 75; Dkt. No. 26 at 7.) About 10 days after receiving the letter, Plaintiff took 4 FMLA leave through the end of the school year and did not return. (See Dkt. No. 25 at 4.) She 5 later resigned her position. (Dkt. No. 29-1 at 71.) 6 Defendants contest that Plaintiff’s email to OSPI was the cause of her involuntary 7 transfer. They state that the timing of the email and the drafting of the involuntary transfer letter 8 makes it impossible that the email was the cause of the transfer. (See Dkt. No. 22 at 5, 8.) In 9 deposition, Defendants Dolezal and Fechter offered alternative reasons for the involuntary 10 transfer. Fechter testified that Plaintiff “did not want to serve certain students because, either 11 they were multilingual, she felt that other kids – other staff members could serve them or that 12 they were low – too low.” (Dkt. No. 31-1 at 5.) Fechter also stated that Plaintiff gave 13 “pushback” to giving students a “double dose,” meaning reading support through both IEP and 14 LAP. (See id.) Plaintiff “complained about students” and other matters and refused to do data 15 entry and paraeducator support—forcing others to take on those tasks. (Id. at 9.) Because of 16 Plaintiff’s refusal to work with “low” students, paraeducators were taking on that work, and 17 Plaintiff allegedly suggested—improperly in Fechter’s view—that these students should be 18 assigned to “life skills”—a program more appropriate for “kids learning how to eat . . . kids 19 learning how to go to the bathroom . . . kids with feeding tubes.” (Id. at 12–13.) There was a 20 particular multilingual student Fechter was concerned Plaintiff would not serve. (Id. at 14.) 21 Dolezal gave very similar testimony, stating that Plaintiff “was often refusing to work with 22 students that were very low” despite her supervisors’ requests for her to serve those students. 23 (Id. at 19.) She raised the same concerns about not working with the multilingual student or 24 1 others, not helping paraeducators, and passing work off onto other staff. (Id. at 21–23, 25.) 2 Dolezal stated that as far back as January she “started having conversations with Eric Nerison, 3 specifically, about a move for Ms. Amos” and Plaintiff’s refusals to serve students “were 4 bringing me to that conclusion.” (Id. at 26.) Dolezal stated it was her “right” under the CBA to 5 transfer Plaintiff. (Id. at 26–27; see also Dkt. No. 29-1 at 66 (employment contract stating that 6 employees are “subject to assignment or reassignment of duties by the Superintendent . . . subject 7 to the limitations specified by statute.”)). 8 Plaintiff denied refusing to serve students and denied that Dolezal or Fechter raised the 9 issue with her. (Dkt. No. 23-1 at 30.) She received a written performance evaluation in which 10 she was rated “proficient” in most categories, including “[h]elps others involved with the 11 student(s);” she was rated “distinguished” in categories including “[r]ecognizes and utilizes the 12 unique characteristics of each student,” but she was rated “basic” in “[a]ssists teachers and 13 administrators” and other areas. (See Dkt. No. 23-1 at 49–50.) 14 IV. SUMMARY JUDGMENT STANDARD 15 Summary judgment is proper only if the pleadings, the discovery and disclosure materials 16 on file, and any affidavits show that there is no genuine issue as to any material fact and that the 17 movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party is 18 entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient 19 showing on an essential element of a claim in the case on which the nonmoving party has the 20 burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue 21 of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find 22 for the non moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 23 (1986)(nonmoving party must present specific, significant probative evidence, not simply “some 24 1 metaphysical doubt.”). See also Fed.R.Civ.P. 56(e). Conversely, a genuine dispute over a 2 material fact exists if there is sufficient evidence supporting the claimed factual dispute, 3 requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty 4 Lobby, Inc., 477 .S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors 5 Association, 809 F.2d 626, 630 (9th Cir. 1987). 6 The determination of the existence of a material fact is often a close question. The court 7 must consider the substantive evidentiary burden that the nonmoving party must meet at trial – 8 e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, T.W. Elect. 9 Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor 10 of the nonmoving party only when the facts specifically attested by that party contradict facts 11 specifically attested by the moving party. The nonmoving party may not merely state that it will 12 discredit the moving party’s evidence at trial, in the hopes that evidence can be developed at trial 13 to support the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson, supra). 14 Conclusory, non specific statements in affidavits are not sufficient, and “missing facts” will not 15 be “presumed.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888–889 (1990). 16 V. ANALYSIS 17 A. A Material Question of Fact Precludes Summary Judgment as to the First 18 Amendment Claim 19 Defendants argue they are entitled to summary judgment on the First Amendment 20 retaliation claim because Plaintiff was not speaking on a matter of public concern in her OSPI 21 email. (Dkt. No. 22 at 7–8.) In any event, they say, “[t]he evidence shows that the Defendant 22 administrators were planning to transfer her before even having any knowledge of the OSPI 23 email.” (Id. at 2.) On reply, Defendants advance the argument that Plaintiff was acting within 24 1 the scope of her job duties when she sent the OSPI email, so she is not entitled to First 2 Amendment protection. (Dkt. No. 30 at 7.) They again argue that she was not speaking on a 3 matter of public concern, and that the email was not a motivating factor in her involuntary 4 transfer. (Id. at 8–9.) Plaintiff argues her speech was on a matter of public concern, that she was 5 not acting within her job duties commenting on IEP because she was not an IEP instructor, and 6 the email was a motivating factor. (Dkt. No. 25 at 6–9.) 7 The Ninth Circuit applies a five-factor test to First Amendment retaliation claims brought 8 by public employees, the first three of which are Plaintiff’s burden: 9 First, the plaintiff bears the burden of proof at trial of showing (1) that she spoke on a matter of public concern; (2) that she spoke as a private citizen rather than a public 10 employee; and (3) that the relevant speech was “a substantial or motivating factor in the adverse employment action.” If the plaintiff establishes such a prima facie case, the 11 burden of proof shifts to the government to show that (4) “the state had an adequate justification for treating the employee differently from other members of the general 12 public”; or (5) “the state would have taken the adverse employment action even absent the protected speech.” 13 Coomes v. Edmonds Sch. Dist. No. 15, 816 F.3d 1255, 1259 (9th Cir. 2016) (quoting Eng v. 14 Cooley, 552 F.3d 1062, 1070–1072 (9th Cir. 2009)) (internal citations omitted). All five factors 15 must be satisfied. Id. at 1260. Further, “the determination whether the speech in question was 16 spoken as a public employee or a private citizen presents a mixed question of fact and law” and 17 “the question of the scope and content of a plaintiff's job responsibilities is a question of fact.” 18 Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1129–1130 (9th Cir. 2008). 19 On the first two factors, the Court finds Plaintiff’s speech related to a matter of public 20 concern, and that it was made outside the scope of her job duties, and therefore it is protected. 21 On the third factor, the Court finds that there is a material question of fact as to whether the 22 23 24 1 speech was a substantial or motivating factor behind the adverse employment action, and 2 therefore, summary judgment must be denied.2 3 1. Legal Standard: Does Garcetti or Pickering Apply? 3 4 In general, First Amendment retaliation claims by public employees are governed by 5 Garcetti v. Ceballos, 547 U.S. 410 (2006). Under the Garcetti test, the first question is if the 6 employee was speaking on a matter of public concern. See id. at 419. If yes, the second 7 question is if the employee was speaking within the scope of their job duties. If yes, the speech 8 is not protected. Id. at 421 (“when public employees make statements pursuant to their official 9 duties, the employees are not speaking as citizens for First Amendment purposes, and the 10 Constitution does not insulate their communications from employer discipline.”) If no, First 11 Amendment protection applies. See id. at 422. Formal job descriptions do not control the 12 analysis, because they “often bear little resemblance to the duties an employee actually is 13 expected to perform.” Id. at 424–425. 14 But at the outset, the Court notes that the Parties failed to brief a threshold question: does 15 Garcetti apply to this dispute? Embedded within Garcetti is an important exception. Because 16 “expression related to academic scholarship or classroom instruction implicates additional 17 constitutional interests that are not fully accounted for by this Court's customary employee- 18 19 2 Defendants do not appear to contest that the involuntary transfer was an adverse employment action, only that the motive for it was retaliatory. (See Dkt. No. 22 at 2.) 20 3 Defendants’ moving brief failed to cite a single federal case for the relevant First Amendment standard, instead citing state cases that summarized federal law. (Dkt. No. 22 at 7–8). Plaintiff’s 21 response cited the Ninth Circuit Model Jury Instruction 9.9 for the elements of the claim, but not the caselaw discussed in that instruction. (See Dkt. No. 25 at 5.) Neither party engaged with the 22 question of how the First Amendment standard differs in academic contexts versus other areas of public employment. Ultimately, the Parties are reminded that “it is not the responsibility of the 23 Court to conduct the legal research for the parties[.]” Env’t Furniture Inc. v. Bina, No. CV 09- 7978 PSG (JCX), 2010 WL 11549403, *9 (C.D. Cal. Aug. 10, 2010). 24 1 speech jurisprudence” the Garcetti Court limited its opinion in that context: “[w]e need not, and 2 for that reason do not, decide whether the analysis we conduct today would apply in the same 3 manner to a case involving speech related to scholarship or teaching.” Id. at 425. The Ninth 4 Circuit has filed this void, holding that the more deferential legal standard that applied before 5 Garcetti, that of Pickering v. Board of Education., 391 U.S. 563 (1968), continues to apply in the 6 academic context. Demers v. Austin, 746 F.3d 402, 406 (9th Cir. 2014). 7 In Pickering, a schoolteacher who wrote a letter to a newspaper opposing the way in 8 which the school district handled revenues was dismissed. 391 U.S. at 564. The Court 9 implemented a test balancing “the interests of the teacher, as a citizen, in commenting upon 10 matters of public concern and the interest of the State, as an employer, in promoting the 11 efficiency of the public services it performs through its employees.” Id. at 568. Applying that 12 test, the speech was protected because “[t]eachers are, as a class, the members of a community 13 most likely to have informed and definite opinions as to how funds allotted to the operations of 14 the schools should be spent.” Id. at 572. Broadly, “a teacher's exercise of his right to speak on 15 issues of public importance may not furnish the basis for his dismissal from public employment.” 16 Id. at 574. 17 The Ninth Circuit explained how these two standards now coexist. It held that “academic 18 employee speech not covered by Garcetti is protected under the First Amendment, using the 19 analysis established in Pickering.” Demers, 746 at 412. Further, the court took an expansive 20 view of what counts as academic: 21 [P]rotected academic writing is not confined to scholarship. Much academic writing is, of course, scholarship. But academics, in the course of their academic duties, also write 22 memoranda, reports, and other documents addressed to such things as a budget, curriculum, departmental structure, and faculty hiring. Depending on its scope and 23 character, such writing may well address matters of public concern under Pickering. 24 1 Id. at 416. But in some cases concerning retaliation against teachers or school staff, the Ninth 2 Circuit has applied Garcetti, including, of particular relevance here, as applied to a teacher who 3 complained about an IEP program. Coomes, 816 F.3d at 1259; see also Posey, 546 F.3d at 1123 4 (applying Garcetti to a school security officer’s retaliation claim). 5 Under either standard, the Court must make a determination as to whether Plaintiff’s 6 speech covers a matter of public concern, which is a threshold inquiry under both Garcetti and 7 Pickering. If yes, Plaintiff has two paths to First Amendment protection: either her speech is 8 outside the scope of her employment, so it is protected under Garcetti, or it is within the scope of 9 her employment—and then it is still protected under Pickering if it is academic. See Demers, 10 746 at 412; see also Kennedy v. Bremerton Sch. Dist., 597 U.S. 507, 527–528 (2022) (both 11 Pickering and Garcetti “suggest proceeding in two steps” where the first is official duties, and 12 the second is interest balancing). Here, the Court finds that Plaintiff’s speech was both on a 13 matter of public concern and outside the scope of her regular job duties, so it would be protected 14 even under Garcetti. 15 2. Plaintiff Spoke On A Matter of Public Concern 16 At the first step of the analysis, the Court finds that Plaintiff’s OSPI email covered a 17 matter of public concern. In the Ninth Circuit, “public interest is ‘defined broadly.’” Demers, 18 746 F.3d at 415 (quoting Ulrich v. City & Cnty. of S.F., 308 F.3d 968, 978 (9th Cir. 2002)). 19 “Speech involves a matter of public concern when it can fairly be considered to relate to ‘any 20 matter of political, social, or other concern to the community.’” Id. (quoting Johnson v. 21 Multnomah Cnty., 48 F.3d 420, 422 (9th Cir. 1995)). The “essential question is whether the 22 speech addressed matters of public as opposed to personal interest.” Id. (quoting Desrochers v. 23 City of San Bernardino, 572 F.3d 703, 709 (9th Cir.2009)). “Even if only ‘a relatively small 24 1 segment of the general public’ might have been interested in the subject of [plaintiff’s] posts, that 2 is sufficient.” Hernandez v. City of Phoenix, 43 F.4th 966, 978 (9th Cir. 2022). By contrast, 3 “speech deals with individual personnel disputes and grievances” such that “the information 4 would be of no relevance to the public's evaluation of the performance of governmental 5 agencies” is not a matter of public concern. McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th 6 Cir. 1983). In this inquiry, the court considers: “the content, form, and context of a given 7 statement, as revealed by the whole record” and of these, content is most important. Demers, 8 746 F.3d at 415 (quoting Connick v. Myers, 461 U.S. 138, 147–148 (1983)). 9 Recall the content of the speech at issue: 10 I am seeking clarification about IEP service minutes. If a child is on an IEP and it states that they are to receive 60 minutes of reading, do LAP services count towards those 11 minutes? Or are the LAP minutes in addition to the 60 minutes? I want to make sure we are in compliance with all of this. 12 (Dkt. No. 23-1 at 52.) The content of the message is concerned with whether the school 13 complied with legal requirements governing individualized education programs for students with 14 learning disabilities. Although the specifics of how certain minutes of instruction time are 15 counted towards an IEP may be a niche issue, the overall subject matter of the school district’s 16 implementation of special education programs is undoubtedly a matter of “political, social, or 17 other concern to the community.” Demers, 746 F.3d at 415. The content of the message does 18 not mention Plaintiff’s personal grievances with the school district or the terms of her 19 employment, but rather special education programs, which would be of interest to at least a 20 segment of the broader community. 21 Defendants argue that “the email was not a whistleblower complaint, was not to report 22 illegal activity, was regarding one singular student, and was not regarding a matter of public 23 concern.” (Dkt. No. 22 at 8.) The argument is not persuasive. The email was intended to clarify 24 1 whether Defendants were complying with the law. And although Plaintiff was writing in 2 reference to her experience with one student: a) Defendants cite no authority holding that the 3 treatment of a particular student cannot be a matter of public concern, and b) the text of the email 4 asks about IEP implementation in general, with no reference to the student.4 5 This result is consistent with other cases on matters of public concern. In Posey, the 6 Ninth Circuit held that a letter written by a school security officer to the school’s chief 7 administrative officer and superintendent covered matters of public concern, where it alleged 8 various security shortcomings that needed correcting “before someone gets seriously hurt.” 546 9 F.3d at 1124, 1129. The allegations were a matter of public concern because they were “relevant 10 to the public’s evaluation of the performance of the school's administration.” Id. at 1130 11 (cleaned up). In Demers, the Ninth Circuit found that a plan a professor circulated for 12 reorganization in a communications school was a matter of public concern, rejecting the idea that 13 it was “of no interest to anyone outside a narrow ‘bureaucratic niche.’” 746 F.3d at 416. More 14 recently, the Ninth Circuit held that a math professor’s criticism of changes to a math curriculum 15 was a matter of public concern. Jensen v. Brown, 131 F.4th 677, 687 (9th Cir. 2025). The Court 16 gleans from these precedents that critiques of how school administrators execute programs and 17 policies generally touch on matters of public concern. That, together with the Ninth Circuit’s 18 instruction to take a “liberal construction of what an issue of public concern is under the First 19 Amendment,” Demers, 745 F.3d at 415, is enough at this step of the analysis. 20 21 4 Defendants’ reply states that Plaintiff “has conceded that she was not writing on a matter of public concern” but cites no evidence. (Dkt. No. 30 at 8.) Plaintiff was asked in deposition “are 22 you alleging that the inquiry that you sent to OSPI in March was a whistleblower complaint?” and responded “[t]hat was not my intent of the email.” (Dkt. No. 23-1 at 43.) But there is no 23 legal requirement that Plaintiff needed to have the subjective intent to send a “whistleblower complaint” at the time she sent her email. 24 1 3. Plaintiff’s Email Fell Outside Her Job Duties 2 When Plaintiff emailed OSPI, she went outside of her chain of command to address her 3 concerns with school administration. Under Ninth Circuit precedent, that takes her speech 4 outside the scope of her job duties. “When a public employee communicates with individuals or 5 entities outside of his chain of command, it is unlikely that he is speaking pursuant to his duties.” 6 Dahlia v. Rodriguez, 735 F.3d 1060, 1074 (9th Cir. 2013). “If . . . a public employee takes his 7 job concerns to persons outside the work place in addition to raising them up the chain of 8 command at his workplace, then those external communications are ordinarily not made as an 9 employee, but as a citizen.” Id. In Dahlia, the court commented that a police officer who took 10 his concerns to internal affairs “very well may have acted outside his chain of command,” and 11 drew an inference in his favor. Id. at 1077. In Freitag v. Ayers, the court held that a corrections 12 officer acted outside the scope of her job duties when she complained about being sexually 13 harassed by male officers to a State Senator and the state Inspector General, writing “[i]t was 14 certainly not part of her official tasks to complain to the Senator or the IG about the state’s 15 failure to perform its duties properly[.]” 468 F.3d 528, 545 (9th Cir. 2006). These cases stand in 16 contrast to Garcetti, where a deputy in the Los Angeles County District Attorney’s office 17 complained to his supervisors that he believed a deputy sheriff’s affidavit was false, and that fell 18 within his job duties. 547 U.S. at 421. 19 Coomes presents an important caveat to this chain of command rule. In that case, the 20 Ninth Circuit held that the director of a school’s Emotional/Behavioral Disorders (“EBD”) 21 program did not speak in a private capacity when she emailed parents of EBD students to express 22 concern with their EBD placements. 816 F.3d at 1264. That was because “communicating with 23 parents about students’ IEPs and their progress in the EBD program was part and parcel of 24 1 Coomes’s job.” Id. In fact, in one of the emails, Commes stated “[a]s case manager, it is my 2 role to talk with parents about developments at school.” Id. Coomes also raised concerns about 3 the EBD program with her supervisors within the chain of command, and that was part of her job 4 too. Id. at 1263–1264. Although Coomes is similar to this case in that both concern IEP 5 programs, the Court finds it is distinguishable.5 Here, Plaintiff went outside the chain of 6 command not to parents, or to others with whom she might ordinarily communicate as part of her 7 regular duties, but to a state regulator. See Minkley v. Eureka City Sch., No. 17-CV-3241-PJH, 8 2017 WL 4355049, at *13 (N.D. Cal. Sept. 29, 2017) (denying a motion to dismiss a special 9 education teacher’s retaliation claim and distinguishing Coomes where plaintiff pled that she 10 contacted “not only parents, but also the Director of [a regional special education entity], the 11 County Coordinator for the [teacher support] program, the Board, and her union.”). Whereas 12 Coomes found that there was no triable fact question as to whether communication with 13 plaintiff’s supervisors and parents fell within her job duties, see 816 F.3d at 1264, the Court 14 cannot say the same here with respect to Plaintiff’s outreach to OSPI. 15 The content of the email and how it relates to Plaintiff’s responsibilities is of course 16 relevant as well. Plaintiff was a “reading specialist,” and generally her job was to help students 17 advance their reading skills. (See Dkt. Nos. 26 at 2; 23-1 at 3–4, 49.) Figuring out how to 18 account for time to ensure that a student received their full allotment of IEP with other 19 instructors was not, on this record, so clearly within Plaintiff’s ordinary responsibilities that 20 Defendants are entitled to judgment as a matter of law on this point. In Coomes, plaintiff was 21 “part of the IEP team,” and in fact directed the EBD program, so her complaints about IEP 22 implementation were part of her job duties, 816 F.3d at 1261–1262. But here, Plaintiff contends 23 5 Notably, neither party cited Coomes and Defendants did not argue that it controls here. 24 1 she was not part of the IEP team and IEP implementation was not her job. (See Dkt. No. 26 at 8) 2 (“School IEP policies and procedures were not part of my job duties as a teacher at KES. I had 3 nothing to do with creation, planning, or assignment of IEP.”). In fact, Plaintiff’s animating 4 concern in sending the email was that she was not a qualified IEP educator, so her LAP 5 instruction time could not count towards an IEP. (See id. at 3.) Moreover, the email was not “a 6 routine report, pursuant to normal departmental procedure” but addressed more “broad concerns” 7 with how the school was implementing these programs. Dahlia, 735 F.3d at 1075. See also 8 Marable v. Nitchman, 511 F.3d 924, 932 (9th Cir. 2007) (complaining about “allegedly corrupt 9 overpayment schemes” not part of job duties for Washington State Ferry engineer); Freitag, 468 10 F.3d at 545 (complaining about sexual harassment not part of job duties). 11 Thus, the Court finds that Plaintiff’s communication fell outside the scope of her job 12 duties. 13 4. Disputed Questions of Fact Preclude Summary Judgment on Retaliation 14 The Court now turns to the third factor of First Amendment retaliation against public 15 employees: whether the protected speech was a substantial or motivating factor. As with the first 16 two factors, Plaintiff bears the burden on factor three. Coomes, 816 F.3d at 1259. The protected 17 speech need not have been the sole factor animating Defendants’ decision, so long as it was a 18 “substantial or motivating factor.” See id.; Hernandez, 43 F.4th at 976. 19 Plaintiff relies on the fact that school administrators learned of her email to OSPI on the 20 same day that they started drafting the involuntary transfer letter. (Dkt. No. 25 at 8–9.) In 21 Plaintiff’s telling, these events were “nearly simultaneous.” (Id. at 3.) Defendants argue that 22 they could not haver retaliated on the basis of the OSPI email, because Dolezal started drafting 23 the transfer letter at 7:40 a.m. on March 27 and Burns did not forward the email to Fechter and 24 1 Dolezal until 12:27 p.m. that day. (See Dkt. No. 22 at 5, 8.) Plaintiff argues that regardless, 2 these events are close enough in proximity that for summary judgment purposes, a jury could 3 draw an inference that they were related, and the email at least contributed to the transfer 4 decision. (See Dkt. No. 25 at 8–9.) Plaintiff relies on Coszalter v. City of Salem, in which the 5 Ninth Circuit stated “a plaintiff can introduce evidence regarding the proximity in time between 6 the protected action and the allegedly retaliatory employment decision,’ from which a jury 7 logically could infer [the plaintiff] was terminated in retaliation for his speech.” 320 F.3d 968, 8 977 (9th Cir. 2003) (internal quotations omitted). However, in that case, the adverse action took 9 place after the employer was aware of the protected speech at issue. Id. at 970–972, 977; see 10 also Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 507 (9th Cir. 2000) 11 (“when adverse employment decisions are taken within a reasonable period of time after 12 complaints of discrimination have been made, retaliatory intent may be inferred”). 13 Nonetheless, the timeline of events would allow a reasonable jury to infer that the OSPI 14 email was a substantial or motivating factor in the transfer decision. Plaintiff states in her sworn 15 declaration that she told Burns about the OSPI email between March 18 and 21. (Dkt. No. 26 at 16 5.) Dolezal began drafting the involuntary transfer letter at 7:40 a.m. on March 27. (Dkt. No. 17 23-1 at 58, 63.) Plaintiff forwarded the email to Burns at 11:15 a.m. on the 27th, and Burns then 18 forwarded it to Fechter and Dolezal the same day, at 12:27 p.m. (Dkt. Nos. 26 at 5; 29-1 at 73, 19 83.) It does not appear, from the materials submitted, that Burns was directly asked whether she 20 spoke with Fechter or Dolezal about the OSPI email before forwarding it to them, which is a 21 significant gap in the record. (See generally Dkt. No. 31-1 at 35–46.) Burns did state that “I 22 know that when [Plaintiff] got the e-mail, she forwarded it to me, and I forwarded it to admin as 23 I would with any information coming from OSPI”—suggesting she would pass information 24 1 regarding OSPI to the administration promptly. (See id. at 38.) What the record does make clear 2 is that Dolezal knew of the OSPI email before finalizing the transfer decision. Dolezal 3 acknowledged that at a meeting on March 29 she asked Plaintiff why she reached out to OSPI 4 instead of talking to Sheldon first, as reflected in meeting minutes. (See Dkt. Nos. 31-1 at 28– 5 29; 29-1 at 77.) One day after that meeting, and three days after receiving the email, on March 6 30, Dolezal informed Plaintiff of the involuntary transfer. (Dkt. Nos. 23-1 at 68; 26 at 6; 28 at 7 5.) A reasonable jury could find that even if Dolezal had started forming an intent to transfer 8 Plaintiff as early as January, she did not act on that intent until the day she received the email, 9 and did not finalize the decision until after she knew of the email. On these facts, and viewed in 10 the light most favorable to the non-movant, a reasonable jury ultimately could find the email 11 played a substantial or motivating factor in the transfer decision conveyed to Plaintiff on March 12 30. 13 As to the remaining two factors of the claim, for which Defendants bear the burden, 14 Coomes, 816 F.3d at 1259, Defendants have proffered evidence of alternative non-retaliatory 15 justifications for their decision to transfer Plaintiff, see supra Section III, but this likewise 16 presents a disputed question of fact as to Defendants’ motives. 17 5. Defendants Are Not Entitled to Qualified Immunity 18 Finally, Defendants argue they are entitled to qualified immunity. In the qualified 19 immunity analysis, the Court must not “frame the issues presented at “too high a level of 20 generality,” and must “adequately adjust[ ] to account for [Defendants’] interests in avoiding 21 disruption to [the school's] operations under the Pickering test.” Dodge v. Evergreen Sch. Dist. 22 #114, 56 F.4th 767, 783–784 (9th Cir. 2022). Because the public employee free-speech analysis 23 (under Pickering) “requires a fact-sensitive, context-specific balancing of competing interests,” 24 1 qualified immunity is often appropriate. Id. at 784. (quoting Brewster v. Bd. of Educ. of 2 Lynwood Unified Sch. Dist., 149 F.3d 971, 980 (9th Cir. 1998)). Even still, plaintiff need not 3 produce “a case directly on point” and “it is enough to show that ‘the contours of a right are 4 sufficiently clear’ that every ‘reasonable official would have understood that what he is doing 5 violates that right.’” Id. (cleaned up). 6 Here, the Court asks whether it was clearly established that Defendants could not retaliate 7 against Plaintiff for raising concerns with their implementation of special education programs 8 outside her chain of command. The Court finds that it was clearly established at the time that 9 Defendants could not do so, as the Ninth Circuit and Supreme Court have repeatedly held that 10 educators and school employees can criticize school district policies and practices outside of 11 their normal job duties and chain of command. See Pickering, 391 U.S. at 574; Demers, 746 12 F.3d at 412; Dahlia, 735 F.3d at 1074; Posey, 546 F.3d at 1129–1131; see also Jensen, 131 F.4th 13 at 694 (“by the time of the alleged retaliation, Pickering had established that ‘the preferable 14 manner of operating the school system . . . clearly concerns an issue of general public 15 interest.’”). Defendants’ brief does not engage with any of these precedents and merely asserts 16 that the right was not clearly established. (See Dkt. No. 22 at 11–12.)6 Accordingly, the Court 17 finds Defendants are not entitled to qualified immunity. 18 For all these reasons, summary judgment is DENIED as to Plaintiff’s First Amendment 19 Retaliation claim. 20 B. Plaintiff’s State Whistleblower Claim is Abandoned and Defaulted 21 6 In fact, Defendants’ moving brief names the wrong parties in the qualified immunity analysis, 22 arguing that “no reasonable reading of that law could have put Scholz, Hill, or Jewell on notice that their conduct was unconstitutional”—three individuals who, it does not appear from the 23 record, have anything to do with this case. (See Dkt. No. 22 at 12.) This boilerplate recitation, perhaps copy and pasted from a brief in another matter, is insufficient. 24 1 Plaintiff’s complaint invokes Washington Revised Code § 42.41 et seq, the Local 2 Government Whistleblower Protection Act (“LGWPA”). (Dkt. No. 1 at 17.) For at least two 3 independent reasons, the Court grants summary judgment on this claim. 4 First, Plaintiff’s response to the motion for summary judgment casts doubt on whether 5 she is pursuing a claim under Section 42.41 at all. She states that “Plaintiff is not suing the 6 District for a violation of [the Whistleblower Act], but using the local government whistleblower 7 statute as a “public policy” that employees have a right to question governmental actions.” (Dkt. 8 No. 25 at 14.) This appears to be a reference to the “public policy” aspect of a common-law 9 claim for “wrongful discharge against public policy,” Rose v. Anderson Hay & Grain Co., 358 10 P.3d 1139, 1141 (2015). In any event, Plaintiff’s response to the motion for summary judgment 11 on the Section 42.41 claim is that she is not pursuing the claim, so the Court has no basis to deny 12 the motion. 13 Second, Plaintiff had an opportunity to be heard on her state whistleblower claim in front 14 of an Administrative Law Judge, and she defaulted. (See Dkt. No. 23-1 at 77–86.) Under state 15 law, “[t]he final decision of the administrative law judge is subject to judicial review under the 16 arbitrary and capricious standard.” Wash. Rev. Code § 42.41.040(9). Plaintiff has not asked this 17 Court to review or reverse the default nor argued that the ALJ’s decision was arbitrary and 18 capricious, and so the Court will not do so. 19 Defendants further argue that they are exempt from the requirements of the LGWPA 20 because they have promulgated their own whistleblower policy, and under Washington Revised 21 Code § 42.41.050 “[a]ny local government that has adopted or adopts a program for reporting 22 alleged improper governmental actions and adjudicating retaliation resulting from such reporting 23 shall be exempt from this chapter if the program meets the intent of this chapter.” (See Dkt. No. 24 1 22 at 14.) However, the Washington Court of Appeals has held that a local whistleblower 2 ordinance fails to “meet the intent” of the chapter when it fails to provide remedies that are 3 required by state law. See City of Seattle v. Swanson, 373 P.3d 342, 351–352 (Wash. Ct. App. 4 2016). Under KSD’s policy, an employee who reports an “improper governmental action” and 5 believes they have been subject to retaliation has the right to request a hearing before an ALJ. 6 (See Dkt. No. 23-1 at 89–90.) 7 Here, the Court finds it unnecessary to determine whether KSD’s policy “meets the 8 intent” of the LGWPA, because Plaintiff received the same process she would have been entitled 9 to under either the state law or the local policy: a hearing before an ALJ. As already noted, she 10 defaulted in that hearing and has not asked this Court to review that decision. Thus any 11 distinction between KSD’s policy and the LGWPA is of no practical effect in this case, and the 12 outcome is the same either way—Plaintiff has no further recourse in this Court. 13 For all these reasons, the Court grants summary judgment as to the Local Government 14 Whistleblower Protection Act claim. 15 C. The Court Reserves Judgment as to Constructive Discharge, And Orders 16 Plaintiff to Brief Why Summary Judgment Should Not Be Granted on That 17 Claim 18 Plaintiff pleads a claim of “constructive discharge” under state law. (See Dkt. No. 1 at 19 17.) This appears to be a reference to a claim of constructive, wrongful discharge in violation of 20 public policy under Washington common law. See Snyder v. Med. Serv. Corp. of E. Washington, 21 35 P.3d 1158, 1161 (Wash. 2001) (en banc) (“Washington law does not recognize a cause of 22 action for constructive discharge; rather the law recognizes an action for wrongful discharge 23 which may be either express or constructive.”). Generally, employment is terminable at-will, but 24 1 there is an exception “where the discharge contravenes a ‘clear mandate of public policy.’” Id. 2 (quoting Roberts v. Dudley, 993 P.2d 901 (Wash. 2000)). Plaintiff alleges that the policies 3 violated include the Local Government Whistleblower Protection Act, see supra, and the 4 Washington Constitution, Article I, Section 5 (Freedom of Speech). (See Dkt. No. 1 at 17.) But 5 proving a violation of policy is not the end of the inquiry. As the Washington Court of Appeals 6 explained, 7 To establish constructive discharge, an employee must show that an employer engaged in a deliberate act, or a pattern of conduct, that made working conditions so intolerable that 8 a reasonable person would have felt compelled to resign. This is an objective standard and an employee’s subjective belief that he had no choice but to resign is irrelevant. 9 Barnett v. Sequim Valley Ranch, LLC, 302 P.3d 500, 505 (Wash. Ct. App. 2013) (cleaned up); 10 see also Wash. Pattern Jury Instructions 330.51, 330.52. 11 Plaintiff notes that Defendants’ moving brief failed to move for summary judgment on 12 this issue. (Dkt. No. 25 at 14–15.) Defendants only raised the issue on reply. (Dkt. No. 30 at 13 10–11.) As such, Plaintiff did not have sufficient opportunity to respond in her responsive brief. 14 See also Fed. R. of Civ. P. 56(f) (allowing courts to grant summary judgment on grounds not 15 raised by a party after “notice and a reasonable time to respond”). Therefore, the Court will 16 order supplemental briefing on this issue, per the terms provided in the Order below. 17 VI. ORDER 18 Defendants’ Motion for Summary Judgment (Dkt. No. 22) is DENIED as to Plaintiff’s 19 First Amendment Retaliation claim and GRANTED as to her Local Government Whistleblower 20 Protection Act claim. 7 21 22 7 Plaintiff also pled claims under § 1983 of unlawful policy or practice (see Dkt. No. 1 at 16–17), 23 but states in her responsive brief that she is no longer pursuing those claims (Dkt. No. 25 at 9), so summary judgment is GRANTED as to those claims as well. 24 1 Plaintiff is ORDERED to file a supplemental brief, not to exceed 2,100 words explaining 2 why summary judgment should not be granted as to wrongful, constructive discharge in violation 3 of public policy, with citations to the record. The brief shall be filed no later than June 20, 2025. 4 The Clerk is directed to calendar this event. 5 6 Dated this 30th day of May, 2025. 7 8 9 a 10 David G. Estudillo 11 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24