United States District Court, D. Colorado
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE
matter is before the Court on Defendants' motion to
dismiss (ECF No. 16). Plaintiff brought this action under 42
U.S.C. § 1983, alleging Defendants retaliated against
him in violation of his First Amendment rights. Defendants
contend the complaint fails to state a claim and that
Defendant Abrego is entitled to qualified immunity. In his
response (ECF No. 17), Plaintiff abandons part of one of his
claims. Defendant has filed a reply. (ECF No. 18.) The Court
has reviewed the pleadings, case file, and applicable law.
For the reasons stated below, the motion is denied.
evaluating a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
court must accept as true all well-pleaded factual
allegations in the complaint, view those allegations in the
light most favorable to the plaintiff, and draw all
reasonable inferences in the plaintiff s favor. Brokers
> Choree of Am., Ine. v. NBC Universal,
Inc., 757 F.3d 1125, 1136 (10th Cir. 2014); Mink v.
Knox, 613 F.3d 995, 1000 (10th Cir. 2010). The complaint
must allege a "plausible" right to relief. Bell
Ail Corp. v. Twombly, 550 U.S. 544, 569 n.14 (2007);
see also Id. at 555 ("Factual allegations must
be enough to raise a right to relief above the speculative
level."). Conclusory allegations are insufficient,
Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th
Cir. 2009), and courts "are not bound to accept as true
a legal conclusion couched as a factual allegation,"
Twombly, 550 U.S. at 555 (quotation omitted). To
determine whether a claim is plausible, a court considers
"the elements of the particular cause of action, keeping
in mind that the Rule 12(b)(6) standard doesn't require a
plaintiff to set forth a prima facie case for each
element." George v. Urban Settlement Servs.,
833 F.3d 1242, 1247 (10th Cir. 2016) (quotation omitted).
However, if the allegations "are so general that they
encompass a wide swath of conduct, much of it innocent,"
the plaintiff has not "nudged [his] claims across the
line from conceivable to plausible." Khalikv. United
Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)
immunity shields individual defendants named in § 1983
actions unless their conduct was unreasonable in light of
clearly established law. Estate of Booker v. Gomez,
745 F.3d 405, 411 (10th Cir. 2014). "[W]hen a defendant
asserts qualified immunity, the plaintiff carries a two-part
burden to show: (1) that the defendant's actions violated
a federal constitutional or statutory right, and, if so, (2)
that the right was clearly established at the time of the
defendant's unlawful conduct." Id.
(quotation omitted). "Asserting a qualified immunity
defense via a Rule 12(b)(6) motion . . . subjects the
defendant to a more challenging standard of review than would
apply on summary judgment." Peterson v. Jensen,
371 F.3d 1199, 1201 (10th Cir. 2004).
following facts are taken from the complaint and, for present
purposes, viewed in the light most favorable to Plaintiff.
Plaintiff was an employee of Adams County School District No.
14 and held the position of Post-Secondary/Work Readiness
& Family Engagement Specialist at Lester Arnold High
School. (ECF No. 3 at ¶ 55.) Plaintiff was also a board
member of INSPIRE, a Colorado nonprofit organization with a
mission "to ignite, train, and invest in youth to become
Change Agents in their schools, families and
communities." (Id. at ¶ 29.) Since 2014,
INSPIRE has contracted with the District to work with
students at various schools. (Mat¶30.)
the District's poor performance over a number of years,
the state board of education began planning to take over
certain aspects of it. (Id. at ¶ 13.) Community
members, parents, and students staged multiple protests
directed at Defendants' mismanagement of the District,
including a student-led walkout at Adams City High School in
April 2018 and formation of a group calling for the removal
of Defendant Abrego as superintendent. At some protests,
students wore INSPIRE t-shirts. (Id. at ¶¶
18-20.) Although INSPIRE did not encourage students to
protest or to wear the t-shirts, it did encourage them to
attend school board meetings, tell Defendants their stories,
and work with school administrators. (Id. at
¶¶ 32-34, 38.)
2018, the executive director of INSPIRE met with
administrators from Adams City to discuss their concerns that
INSPIRE students were protesting the administration.
(Id. at ¶ 38.) The administrators stated that
they would not continue to contract with INSPIRE unless its
board members provided letters of support for the
administration. About a week later, INSPIRE's contract
with Adams City was cancelled.
following month, Plaintiff was notified by letter that his
position at Lester Arnold had been eliminated. (Id.
at 58.) The District's letter states: "We have
decided to discontinue [the District's] contract with
INSPIRE and as a result, your at[-]will position at Lester
Arnold is eliminated effective June 22, 2018."
(Id. at ¶ 59.) But according to Lester
Arnold's website, Plaintiffs former position was soon
held by another person. (Id. at ¶¶ 63-64.)
INSPIRE continued its program at Lester Arnold, but the
principal there received a written reprimand from the
District. (Id. at ¶¶ 47-51.) That letter
states: "No entering into a contract with INSPIRE."
alleges Defendants violated his First Amendment rights by
firing him in retaliation for his association with INSPIRE
and for not writing a letter in support of the District.
1983 provides a remedy for people, including public
officials, if an individual violates their federal rights
while acting under color of state law. Cillo v. City of
Greenwood Village, 739 F.3d 451, 459 (10th Cir. 2013).
Public employee retaliation claims based on protected First
Amendment activity are subject to the four-part test derived
from Pickering v. Board of Education, 391 U.S. 563
(1968), and Connick v. Myers, 461 U.S. 138 (1983).
Id. at 460. The Pickenng/Connick test
requires a plaintiff to show that "(1) his First
Amendment activity involved a matter of public concern; (2)
his interests in the protected activity outweighed the
employer's interest in regulating it; and (3) the
protected activity was a substantial motivating factor in the
employer's decision to take adverse action against
him." Id. at 461. If the plaintiff does so, the
employer can escape liability by showing that (4) it would
have taken the same action in the absence of the protected
Freedom of ...