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Durstein v. Alexander

United States District Court, S.D. West Virginia, Huntington Division

December 13, 2019




         Pending are motions to dismiss by defendants Todd Alexander, the Board of Education of Cabell County Schools, and the State Superintendent of Schools of the West Virginia Department of Education. ECF Nos. 28, 26, 24. For the reasons below, the Court DENIES Defendant Todd Alexander's Motion to Dismiss Amended Complaint, ECF No. 28. The Court GRANTS IN PART as to Count Two and DENIES IN PART as to Count Four Defendant Board of Education Cabell County Schools' Motion to Dismiss Amended Complaint, ECF No. 26. Lastly, the Court GRANTS State Superintendent of Schools' Motion to Dismiss Amended Complaint, ECF No. 24.

         I. BACKGOUND

         In her Amended Complaint, Mary Durstein alleges the following facts. ECF No. 20. Durstein worked as a full-time teacher for Cabell County Schools from November 2001 until her termination on March 6, 2017. Id. ¶ 4. During the 2016-2017 school year, Durstein taught World Studies at Huntington High School. Id. ¶ 5. She operated a Twitter account viewable by the public and often posted about political issues. Id. ¶ 17-18. A journalism student at Marshall University gathered several of Durstein's tweets, and the student or a friend of the student shared the tweets with Cabell County Schools and local news organizations. Id. ¶ 23.

         On January 9, 2017, Huntington High School Principal Jody Cunningham called Durstein into his office to meet with him and Todd Alexander, an assistant superintendent for Cabell County Schools. Id. ¶ 21-22, 6. At this meeting, Alexander and Cunningham discussed three of Durstein's tweets with her. Id. ¶ 24. The first, posted on July 16, 2015, is a retweet of conservative commentator Ann Coulter containing a photograph of two men and five women, some of whom are wearing hijabs. Id. ¶ 25; ECF No. 20-1. One of the men in the photo is Mohammad Youssuf Abdulazeez, who had opened fire on two military installations in Tennessee. ECF No. 20 ¶ 25. A caption above the photo reads “Deport them.” ECF No. 20-1. The second tweet, also from July 16, 2015, states “Who cares if we offend Muslims at least they keep their heads on tact. They're the enemy!” ECF No. 20 ¶ 26; ECF No. 20-2. In the third tweet, posted on May 28, 2016, Durstein responds “Exactly !!!!!!!!!” to a meme calling President Barack Obama a “Muslim douchebag.” ECF No. 20 ¶ 28; ECF No. 20-3.

         After discussing these tweets, Alexander told Durstein three times to immediately shut down her Twitter account. ECF No. 20 ¶ 29. Cunningham told Durstein to sit at his desk and use his computer to shut down the account. Id. ¶ 31. Durstein did not know how to deactivate her account, so another school employee helped her shut it down while Alexander watched. Id. ¶ 31- 32. Alexander then told Durstein “[y]ou're not to speak to the media” and placed her on administrative leave with pay. Id. ¶ 34-35.

         On January 24, 2017, the Superintendent of Cabell County Schools suspended Durstein without pay. Id. ¶ 42. On March 6, 2017, the Board of Education of Cabell County Schools voted to terminate Durstein. Id. ¶ 45; ECF No. 20-12. Durstein appealed, but the West Virginia Education and State Grievance Board upheld her termination on September 22, 2017. ECF No. 20 ¶ 46. On December 11, 2017, Durstein received notice that the State Superintendent of Schools was investigating whether to revoke her teaching certificates. Id. ¶ 50; ECF No. 20-13. As of the filing of her Amended Complaint, Durstein had not received a decision from this investigation. ECF No. 20 ¶ 51.

         Durstein filed her Complaint on January 8, 2019, and her Amended Complaint on February 28, 2019. ECF Nos. 1, 20. The Amended Complaint includes five counts. Count One is a 42 U.S.C. § 1983 claim against Alexander for violating the First Amendment by coercing Durstein to terminate her Twitter account. ECF No. 20 ¶ 53-65. Count Two is a § 1983 claim against the Board of Education for its alleged custom of coercing employees to terminate their social media accounts. Id. ¶ 66-73. Count Three is a § 1983 claim against Alexander for violating the First Amendment by commanding Durstein not to speak to the press. Id. ¶ 74-82. Count Four is a § 1983 claim against the Board of Education for terminating Durstein's employment based on polices that violate the First Amendment. Id. ¶ 83-98. Count Five is a § 1983 claim seeking a declaratory judgment that the First Amendment bars the State Superintendent of Schools from revoking Durstein's teaching certificates based on her tweets. Id. ¶ 99-105.


         To survive a motion to dismiss, a plaintiff's complaint must contain “a short and plain statement of the claim showing [the plaintiff] is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The facts contained in the statement need not be probable, but the statement must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has facial plausibility when “the plaintiff pleads 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, 678 (2009) (citation omitted). In considering the plausibility of a plaintiff's claim, the Court must accept all factual allegations in the complaint as true. Id.


         A. Claims Against Todd Alexander

         1. Count One: Coercing Durstein to Terminate her Twitter Account

         Title 42 U.S.C. § 1983 subjects to civil liability anyone who, acting under color of state law, deprives an individual of her constitutional or federal rights. Durstein alleges Alexander violated the First Amendment by coercing her to terminate her personal Twitter account. ECF No. 20 ¶ 53-65. Alexander argues qualified immunity applies and that, even if qualified immunity does not apply, the claim is not viable under the First Amendment. ECF Nos. 29, 50.

         a. Qualified Immunity

         Although qualified immunity is expansive, a government official “who performs an act clearly established to be beyond the scope of his discretionary authority” is not entitled to a qualified immunity defense. In re Allen, 106 F.3d 582, 593 (4th Cir. 1997). The issue is not whether an official's actions were a proper or legal exercise of his discretionary authority. Id. at 594 (“If these were the relevant inquiries, any illegal action would, by definition, fall outside the scope of an official's authority.”) (citation omitted). Rather, the Court must ask whether a reasonable official in the defendant's position would have known that the conduct was clearly established to be beyond the scope of his authority. Id. The Court determines the scope of an official's authority by analyzing the statutes or regulations controlling the official's duties. Id. at 595 (citations omitted). To gain qualified immunity, the defendant bears the burden of demonstrating his conduct falls within the scope of his official duties. Id. at 594 (citations omitted).

         Applying Allen, the relevant consideration here is not simply whether Alexander had authority to discipline employees for their out-of-work speech. This easily falls within Alexander's authority. See, e.g., Sims v. Metro. Dade Cty., 972 F.2d 1230, 1236 (11th Cir. 1992) (holding public employer acted within discretionary authority when disciplining employee for out-of-work statements). Instead, the issue is whether Alexander's authority included the ability to censure employees' social media accounts. Although Alexander bears the burden of showing this, he offered nothing helpful. In re Allen, 106 F.3d at 594. Alexander cites W.Va. Code § 21-5H-1(b)(4) as allowing an employer to require an employee to cooperate in an investigation, but Alexander omits the subsequent explanation narrowing this subsection to cases of employees improperly transferring employers' information. See ECF No. 50, at 3. Alexander also cites § 21-5H-1(c)(1) as precluding employer liability under the statute unless the employer accesses private information. Id. However, Alexander ignores that this subsection only applies to cases of employers inadvertently receiving employees' authentication information. Neither of these two cited subsections are relevant here.

         Most glaringly, Alexander ignores that the cited statute expressly prohibits the conduct Alexander allegedly engaged in. Section 21-5H-1(a)(2) provides that an employer cannot “[r]equest, require or coerce an employee or a potential employee to access the employee or the potential employee's personal account in the presence of the employer . . . .” Section 21-5H-1(e) then defines “personal account” as “an account, service or profile on a social networking website that is used by an employee or potential employee for personal communications unrelated to any business purposes of the employer.”

         Although “public officials seldom use their offices to engage in conduct that is entirely beyond their discretionary authority, ” the Amended Complaint alleges conduct that West Virginia law states is outside the authority of public employers. In re Allen, 106 F.3d at 594; see Woods v. Town of Danville, W.V., 712 F.Supp.2d 502, 509-10 (S.D. W.Va. 2010) (holding officer who drove outside of city limits in response to a call from a neighboring police department acted beyond the scope of his authority under West Virginia law). To be sure, § 21-5H-1(a)(2) alone does not preclude qualified immunity because a reasonable official in Alexander's position may not have known the alleged conduct was clearly established to be beyond the scope of his authority. In re Allen, 106 F.3d at 594. However, Alexander pointed to no statutes, manuals, directives, or other authorities that would suggest to Alexander that directly censoring employees' social media accounts was within his authority as an assistant superintendent. Therefore, the Court cannot dismiss Count One at this stage on qualified immunity grounds.

         b. The First Amendment

         Alexander also argues the Court must dismiss Count One because Durstein's claim has no merit under the First Amendment. ECF No. 29, at 6-9. In cases involving the suppression of public employees' speech, courts apply the Pickering standard. Pickering v. Board of Ed., 391 U.S. 563 (1968). The Court must first assess whether the employee spoke as a citizen (not pursuant to her official duties) on a matter of public concern. Id. at 568; Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). Speech deals with matters of public concern when it relates “to any matter of political, social, or other concern to the community” or when it “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public.” Snyder v. Phelps, 562 U.S. 443, 453 (2011) (citations omitted). If the employee did speak as a citizen on a matter of public concern, the Court must balance “the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering, 391 U.S. at 568.

         Here, Durstein did not speak pursuant to her official duties when she voiced her own opinions on her personal social media account while at home using her own electronic devices. ECF No. 20 ¶ 20. Furthermore, no serious argument can be made that Durstein's tweets were not related to matters of public concern. The three tweets discussed in the meeting with Alexander and Cunningham concerned the alleged culprit of two public shootings, immigration, relations between Muslims and non-Muslims, and the actions of President Obama. ECF Nos. 20-1, 20-2, 20-3. These are quintessentially “matter[s] of political, social, or other concern to the community.” Snyder, 562 U.S. at 453. Durstein's tweets were also of obvious “legitimate news interest” because WSAZ-TV, The Herald-Dispatch, and The Charleston Gazette-Mail reported on them. Id.; ECF Nos. 4-8, 16. The controversial character of Durstein's speech ...

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