Brown v. City of Tulsa.
No. 23-5133. 1/7/2025. N.D.Okla. Judge Federico. Government Employer—Social Media Policy—Employee Termination—First Amendment—Fourteenth Amendment—“Class of One” Claim—Fed. R. Civ. P. 12(b)(6).
January 7, 2025
Brown was employed as a police officer with the Tulsa Police Department (TPD). Before and during his employment, he maintained a Facebook page. A Tulsa activist posted commentary on Facebook criticizing Brown’s social media posts as offensive and made TPD aware of Brown’s posts. Brown was thereafter advised that his employment was being terminated because he had violated TPD’s social media policy by posting offensive social media posts on his private Facebook page. Brown brought two claims under 42 USC § 1983 and a wrongful discharge claim under Oklahoma law against the City of Tulsa (city) and TPD Chief Jordan, individually and in his official capacity as TPD’s police chief. The city and Chief Jordan each separately moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). The district court dismissed the claims against Chief Jordan in his official capacity as duplicative of the claims against the city; dismissed Brown’s First Amendment claim against the city for failure to state a claim, concluding that the city’s interest in maintaining a reputable police force outweighed his free speech rights; and dismissed the same claim against Chief Jordan in his individual capacity, affording him qualified immunity. The court also dismissed Brown’s Equal Protection claim against both the city and Chief Jordan for failure to state a claim, determining that Brown alleged a “class-of-one” theory of Equal Protection that was foreclosed. And after dismissing the federal claims, the district court declined to exercise supplemental jurisdiction over Brown’s state law claim.
As an initial matter on appeal, the Tenth Circuit determined that the district court correctly dismissed the claims against Chief Jordan in his official capacity as duplicative of the claims against the city, as Brown sued the city and Chief Jordan, in both his individual capacity and official capacity, seeking declaratory and injunctive relief and monetary damages from both defendants. The Tenth Circuit also determined that Brown’s claims against Chief Jordan in his individual capacity for declaratory and injunctive relief are non-cognizable and were thus also properly dismissed.
Brown argued on appeal that the district court erred in dismissing his First Amendment claim against the city for failure to state a claim under Rule 12(b)(6) because it concluded that the city’s interest in maintaining a police force that instills public confidence and discourages partisanship in law enforcement outweighed Brown’s free speech rights; and in affording Chief Jordan, in his individual capacity, qualified immunity. The First Amendment applies to state or local government employers through the Fourteenth Amendment. In assessing government employers’ interests against their employees’ First Amendment rights, courts must balance the employee’s interests as a citizen in commenting on matters of public concern against the employer’s interest in promoting efficiency in the public services it performs through its employees. As relevant here, to prevail on his First Amendment retaliation claim, a public employee must establish that (1) their speech was not made pursuant to their official duties; (2) their speech was about a matter of public concern; (3) the government’s interests as the employer in promoting the efficiency of the public services it provides do not outweigh the plaintiff’s free speech interests; (4) the plaintiff’s speech was a substantial or motivating factor in the adverse employment action against them; and (5) without the plaintiff’s speech, the government would not have reached the same employment decision. Here, only the third element, which requires the court to balance the employee’s free speech right against the government’s interests as an employer, is at issue. But in the Rule 12(b)(6) motion to dismiss context, such a balancing test is inappropriate because the claim evaluation is based solely on the plaintiff’s pleadings, and—without conducting discovery—the plaintiff cannot reasonably be expected to allege facts on this element. Similarly, qualified immunity usually cannot be afforded at the motion to dismiss stage either. In this case, in its motion to dismiss, the city introduced several facts to support its burden under the third element that Brown did not plead. In relying on those facts, which were outside the four corners of Brown’s complaint, the district court erred. And the district court further erred by construing Brown’s allegations against him, rather than in his favor, as required by the Rule 12(b)(6) standard. Brown successfully stated a First Amendment retaliation claim, and the district court erred in dismissing this claim against the city and in granting Chief Jordan qualified immunity and dismissing the claim against him in his personal capacity.
Brown also contended that the district court erred by incorrectly classifying his Fourteenth Amendment Equal Protection claim as a “class-of one” claim. He maintained that defendants selectively enforced their policies against him because of their arbitrary desire to discriminate against him due to his political beliefs. A “class-of-one” theory is not cognizable in the public employment context. Here, Brown did not allege that he is a member of a particular class that is being treated differently from other groups of individuals. Rather, he asserted that defendants singled him out and intentionally treated him differently without a rational basis. Brown has thus asserted a “class-of-one” Equal Protection claim. Accordingly, the district court did not err in recognizing his claim as such and dismissing this claim against both the city and Chief Jordan in his individual capacity.
Brown further argued that the district court erred by declining to exercise supplemental jurisdiction over his state law claim after dismissing the federal claims. Because the Tenth Circuit concluded that the district court erred in dismissing Brown’s First Amendment claim, it reversed its decision to decline supplemental jurisdiction over the state law claim.
The dismissal of Brown’s Fourteenth Amendment Equal Protection claim against both the city and Chief Jordan in his individual capacity was affirmed. The dismissal of Brown’s First Amendment free speech claim against both the city and Chief Jordan in his individual capacity, and the district court’s decision to decline exercising supplemental jurisdiction over Brown’s state law claim, were reversed. The case was remanded for further proceedings.