United States District Court, S.D. West Virginia, Huntington Division
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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
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.
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.
Claims Against Todd Alexander
Count One: Coercing Durstein to Terminate her Twitter
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.
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).
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.
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.”
“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.
The First Amendment
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.
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