Case Information
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Before K ANNE W ILLIAMS T INDER Circuit Judges . W ILLIAMS Circuit Judge . Bryan self published short adult relationship advice entitled Fault.” And when say “adult,” we mean it every sense word—in book, repeatedly dis cusses sexually provocative themes uses sexually explic terminology. Eventually, employer, located Chicago’s south suburbs, learned publica tion Craig’s book and decided terminate employ ment because it. sued the school district, the school board, several board members under U.S.C. § alleging they improperly retaliated against him en gaging speech protected by the First Amendment. The district court dismissed the suit failure state claim because, its view, Fault” did address concern entitled protection.
While we respectfully disagree with district court’s assessment “public concern” issue, we ultimately up hold dismissal Craig’s claim alternative basis. While full objectionable content, Craig’s deals adult relationship dynamics, issue large segment concerned. However, affirm district court’s dismissal because allegations Craig’s complaint documents he relies upon support claim establish school district’s interest ensuring effective delivery counseling services outweighed interest. school district reasonably predicted would disrupt learning environment school students, both female male, who learned book’s hypersexualized content reluctant seek out advice. has effectively pled himself out court asserting allegations incor porating documents sufficient establish district’s restricting outweighed terest publishing book. therefore affirm court’s judgment. *3 3
I. BACKGROUND
Until recently, Bryan Craig tenured guidance coun selor Rich Central High School Chicago’s south sub urbs. In addition to advising students, Craig served as coach for Rich Central’s women’s varsity, junior varsity, and freshmen basketball teams. July 2012, while employed Central, Craig self
published entitled which collec tion relationship advice for women. As Craig tells it, while “counseling people all ages and races [he] found himself saying same things over over women dur ing sessions.” Over course “provid[ing] counseling thousands students, parents, clients, friends,” discovered “a trail popcorn leading back it being her fault.” During these encounters female advice seekers, determined “that women act based emotion alone instead emotion plus intellect” which leads women be ing unable to obtain type of relationship they want. By publishing book, Craig hoped to give women “the road map to having upper hand in relationship with man.”
Parts of contain garden variety relationship advice. For example, Craig highlights need discretion between partners develop trust relationship. According Craig, “our biggest downfall relationships is sharing too much information friends or associates.” Craig writes importance being good listener instructs women “[p]ay very close attention con tent when having serious conversations your man.”
But all advice is mundane. Much dedicated exploring provocative topics. For example, Craig devotes one chapter informing women effectiveness using sex appeal obtain power relationship. Craig instructs way example:
Fellas, you ever notice how nice your girl around payday, how your d—k feels even better them when they need something? Noooooo, most men don’t notice, so, women, keep using skill.
Such tactics effective, mind, all “[m]en have sexual radar,” including himself. Despite being “beyond highest caliber men,” nevertheless con fesses “a weakness cleavage” other portions woman’s anatomy. another part book, encourages female
readers engage “a certain level promiscuity before marriage[:]”
Don’t go hoeing around world, but experience things. Women: discover different penis sizes, differ ent races and ethnicities … Discover what you like so you can prepare yourself before going into won derful world marriage.
Craig uses sexually explicit terminology throughout Fault.” One particularly graphic passage relates argument women must submit their male partners order prevent them from being unfaithful:
Let[’]s enter wonderful world submissiveness. Yeah I know ladies, you all hate s ‐‐ t. However, must place us feel type power. Say more “yes” lot less “no.” He’s your man, go ahead let him turn you every which way … [g]ive him oral sex without making “ugh” face. So what if you’re tired, ask him if he wants meal. In another part book, Craig delves into comparative analysis female genitalia various races goes into an excruciating degree graphic detail.
Craig references his employment Central throughout Fault.” introduction, estab lishes qualifications advice giver relating significant amount time he has spent interacting with women. Aside from relations female family mem bers, cites dealings women when “coach[ing] girls basketball, work[ing] office where I am only male counselor, [being] responsible roughly high students year, about half whom females.” referenced counseling students ac knowledgments section, thanking “students clients who consistently reach out me during rough times world relationships: Keep listening learning.” More over, another Rich Central teacher, Kylie Gregor, identified herself the author of the foreword “It’s Her Fault” and vouched for the value Craig’s advice.
Eventually, board officials became aware Fault.” On September 14, 2012, the Superintendent the Rich Township High School District Donna Leak, sent Craig a letter informing him that the District had re ceived “concerns from members School District com munity” regarding book. Leak attached two documents, list Charges and Bill Particulars (collectively, “Charges”), and notified Craig she planned recom mend Board Education Township High School District (the “Board”) he discharged. Among other considerations, Charges stated that: (1) publication “ha[d] caused disruption, con cern, distrust confusion among members School District community;” (2) violated School Board’s Policy “prohibit[ing] conduct creates ‘an intimidating, hostile, offensive educational environment;” (3) “Craig failed present [himself as] positive role model failed properly comport himself accordance professional obligations teacher.” On Sep tember Board adopted Charges issued resolution finding cause for discharge. filed suit against District, Board, Leak,
various Board members (collectively, “Defendants”) under U.S.C. § In complaint, alleges dis charge was retaliation protected exercise First rights. district court dismissed complaint failure state claim. its ruling, court concluded entitled *7 7 Amendment protection because it did not address a matter public concern. Instead, district court found that was “little more than a lurid account plaintiff’s own sexual preferences exploits.” now appeals.
II. ANALYSIS
On appeal, argues that district court incorrectly dismissed First Amendment retaliation suit failure state a claim. “We review de novo a district court’s dismissal under Rule 12(b)(6), construing factual allegations any reasonable inferences light most favorable plain tiff.” Scott v. Chuhak & Tecson, P.C. F.3d (7th Cir. 2013).
A. Fault” Addresses a Matter Public Con cern contends that court erred concluding not entitled Amendment
protection did involve matter public con cern. An actionable “First retaliation claim by employee requires, minimum, speech be ing retaliated against be constitutionally protected, means speech must involve matter ‘public con cern.’” Kristofek Vill. Orland Hills (7th 2013). Whether employee’s implicates concern question law “must be deter mined by content, form, context given state ment, revealed whole record.” Connick Myers (1983).
Despite its lofty terminology, “matter con cern” inquiry does require relate issue exceptional significance entitled prima *8 8 13 1398 facie First Amendment protection. “[P]ublic concern is thing that is a subject of legitimate news interest; that is, a subject of general interest of value concern the public the time of publication.” City of San Diego v. Roe , 543 U.S. 77, 83 84 (2004) (per curiam). But the speech need not address a topic of great societal importance, or even pique the interest of a large segment of the public, order safeguarded the First Amendment. Dishnow v. Sch. Dist. of Rib Lake F.3d (7th Cir. 1996) (holding need not address “matter[] of transcendent importance, such origins of the universe or the merits constitutional monarchy[,]” relate matter public concern). Rather, employee who “participat[es] public dialogue matters public” will “place speech, prima facie, within protection First Amendment.” Id. ; see Eberhardt O’Malley F.3d (7th 1994) (“[I]t is not case only expression which protects is expres sion deals ‘matters public concern,’ unless this formula understood mean any matter which there is potentially public.”). “That was not large, issues were global significance … d[oes] not place [] outside orbit protection.” Dishnow Moreover, “[t]he inappropriate controversial charac ter statement irrelevant question whether deals concern.” Rankin McPherson (1987). *9 9 13 ‐ 1398 Our opinion Dishnow provides a good example of this principle action. case, school guidance counselor tected speech when public employee speaks out about her employer’s policies, conduct, or other issues more directly related to her public em ployment. See, e.g., Connick , 461 U.S. at 144 ‐ 147 (evaluating whether questionnaire submitted by assistant district attorney requesting input on various attorney’s office policies involved public concern “matters only of personal interest”); Pickering Bd. of Educ. of Twp. High Sch. Dist. Will Cnty. , 391 U.S. 574 (1968) (holding teacher’s letter to the editor regarding employer board’s funding decisions was an “issue[] of public importance” entitled to pro tection); Kristofek F.3d (evaluating whether police officer addressed matter of public concern discussing superiors’ handling of politically connected resident’s arrest). When the employee’s expression centers on topic intimately related to her job, the public concern formu la helps courts to distinguish between (1) an employee’s purely personal gripe about how the employer’s policy affects the employee (generally entitled protection); (2) an employee’s attempt to notify the public of work related issue about the public is concerned (gen erally entitled protection). Eberhardt F.3d
When an employee speaks out about her public employer’s actions, the public concern inquiry focuses the court’s attention on “the point of the speech question: was the employee’s point bring wrongdoing light? Or raise other issues concern, they of pub lic concern? Or the point further purely private interest?” Linhart Glatfelter (7th 1985). subject matter expression relevant this analysis. doubt, example, employee’s letter editor concerning her dislike color paint walls her office qualify matter concern based public’s lack topic. But subject matter just one many factors court consider context. generally Connick (“Whether em ployee’s addresses concern must deter mined by content, form, context given statement, revealed whole record.”). ‐ “was fired because he had written certain articles, which board considered scandalous disreputable, for a local newspaper.” Dishnow at 196. One article, in stallment a series called “Rib Lake High School Counse lor’s Corner,” referenced plaintiff’s previous alcohol con sumption cigarette smoking. Id. 198. concluded this article (as well as others written other topics) re lated a matter public concern even though they were not “vital survival Western civilization.” Id.
While book arguably contains more provocative content than article issue Dishnow we think both works relate matters public concern. The district court correctly observed parts Fault,” such description own sexual exploits, relate a matter public interest if viewed isolation. But respectfully disagree court’s ultimate conclusion just happened “touch[] a matter public (relationships between men women) does mean addresses concern.” That precisely what public concern means—speech directed need only address “matter[] might be interested” eligible protection. Id . Viewed whole, addresses adult relationship dy namics, subject interests significant segment public. proliferation advice columns dealing precisely topic testament its newsworthiness. See, e.g., Amy Dickinson, Ask Amy: Wife May Seek Answers Else where Sexual Drought Marriage D ENVER P OST Oct. http://www.denverpost.com/askamy/ci_24242904/dear amy ife may seek ‐ answers ‐ elsewhere ‐ sexual; Carolyn Hax, Carolyn Hax: When Partners Don’t Share Same Idea Comforta ‐ ble W ASHINGTON P OST Oct. http://www.washingtonpost.com/lifestyle/style/carolyn ‐ hax when ‐ partners ‐ dont ‐ share ‐ same ‐ idea ‐ of ‐ comfortable/2013/ 10/01/a0679166 253c ‐ 11e3 ‐ ad0d ‐ b7c8d2a594b9_story.html. The fact Craig’s dealt with subject of general in terest public was enough establish prima facie protection. Eberhardt at 1026. We be lieve district court erred concluding otherwise. district court reasoned dismissal of Craig’s claim warranted because Fault” was similar Supreme Court determined did not relate concern City San Diego Roe (2004) (per curiam). disagree with comparison. Roe dealt with police officer’s creation sexually explicit videos depicting officer “stripping off police uniform masturbating.” Id. at 78. Whatever one may think Craig’s book, fundamentally different character from “debased parody” issue Roe . Id. 82. Craig’s book, though provocative, does address structure adult relationships, issue segment interested. Roe’s video did concern any issue any sort, much less “a subject general value concern public.” Id. By equating Roe’s video Craig’s book, court did ac count fundamental differences between two ex pressions.
B. Defendants’ Interests Restricting Outweighed Speech Interest Even though implicated issue concern, Defendants argue can still affirm dis missal claim Defendants’ interests re *12 12 13 1398 stricting speech outweighed interest mak ‐ ing views known. may affirm court’s dis ‐ missal order on any basis supported by record. Crich ton v. Golden Rule Ins. Co. , 576 F.3d 392, 399 n.2 (7th Cir. 2009).
An employer does necessarily violate by discharging an employee that speaks out on matter concern. “The government is entitled restrict speech addresses matter concern ‘if can prove interest employee citizen commenting on outweighed government employer promoting effective effi cient service.’” Chaklos v. Stevens , F.3d (7th Cir. 2009) (quoting McGreal Ostrov (7th 2004)). employer bears burden justify ing its restriction on its employee’s speech. Connick U.S. 150.
As initial matter, argues Defendants’ bur den particularly rigorous case speech occurred outside work on topic unrelated employment. In support, cites Supreme Court’s decision United States Nat’l Treasury Employees Union (“NTEU”) (1995). In NTEU Court con fronted prospective prohibition low level federal employees’ receipt payment topics totally unrelated their employment. Id. 59. rejecting ban, Court held employer must provide justifi cation “far stronger than mere speculation” re strict employee “has nothing do their jobs.” Id.
NTEU no help to he took “deliberate steps link” his his work guidance counse ‐ lor at Rich Central. Roe U.S. at (holding reliance NTEU “was seriously misplaced” when plaintiff deliberately linked speech employment). ‐ cluded number references his job high school guidance counselor within pages his book: (1) introduction, he informs reader “I coach girls bas ketball, work office where I am only male counse lor, and am responsible roughly high students year, about half whom females;” (2) acknowl edgments, he thanks “students and clients who consistently reach out me during rough times world relation ships: Keep listening and learning;” (3) another Rich Central teacher, Kylie Gregor, wrote foreword; (4) he de scribes experiences “counseling people all ages races” “provid[ing] counseling thousands students, parents, clients, friends.” Because conscious choice connect counseling position Central, relates employment NTEU does apply.
Instead, Connick Pickering balancing test determines whether Defendants’ interests disciplining out weighed rights. “[T]he proper balance these competing interests question law.” Chaklos 715. evaluating Defendants’ asserted interests under rubric, “focus[] effective func tioning employer’s enterprise. Interference work, personnel relationships, speaker’s job perfor mance can detract from employer’s function; avoiding such interference can strong state interest.” Rankin disruption need come pass *14 14 13 1398 order the employer take action; “give substantial weight government employers’ reasonable predictions disruption.” Crue v. Aiken , 370 F.3d 668, 685 (7th Cir. 2004); see also Khuans Sch. Dist. 110 , 123 F.3d 1014 (7th Cir. 1997) ( “Where employee speech carries the potential be disruptive, the employer must have the ability move quickly” discipline the employee). But an employ ‐ er’s assessment the possible interference caused the speech must be reasonable—“the predictions must be ‘sup ‐ ported an evidentiary foundation be more than mere speculation.’” Chaklos , 560 F.3d at 715 (quoting Gazarkiewicz Town Kingsford Heights , F.3d (7th 2004)).
The degree disruption potential disruption neces sary justify the restriction varies depending number factors. One consideration the content the speech: “[A] stronger showing may be necessary when employ ee’s speech more substantially involves matters concern.” McGreal F.3d at 82. Conversely, “[t]he less serious, portentous, political, significant the genre expres sion, less imposing justification government must put forth permitted suppress ex pression.” Eberhardt 1026. Courts must also con sider nature employee’s responsibilities. An em ployer may have more leeway restricting speech employee whose position requires contact public. Rankin U.S. manner, time, place employee’s relevant analysis; “[e]mployee transpires entirely em ployee’s own time … bring[s] different factors into Picker ing calculus.” Connick n.13.
After reviewing Craig’s complaint and other docu ‐ ments that he relies upon establish his claim for relief (i.e., his book Charges), we conclude that Defendants’ in terests in remedying potential disruption caused by his book outweighed interest. Essentially, Charges reflect Defendants based their decision ter minate employment a prediction Fault” would “create[] intimidating … educational envi ronment” Rich Central. Defendants’ assessment how students, particularly his female students, would respond upon reading hearing about hypersexualized content looms large our analysis. fact works closely with students public as counselor confers upon him inordinate amount trust authority. generally Edwards Aguillard (1987) (“Families entrust public schools educa tion their children … Students such institutions im pressionable their attendance involuntary.”); see Melzer Bd. Educ. City Sch. Dist. City New York (2d 2003) (“[W]e note conduct our evaluation appellant’s rights versus govern mental bearing mind position teacher school. This position its very nature requires de gree trust found many other positions employment.”). Particularly guidance counselor, must maintain safe space for students ensure they remain willing come him advice. If fails create appropriate environment stu dents, they will approach him he cannot do job. think Defendants reasonably predicted interfere learning environment Central. For starters, Defendants reasonably inferred that some Rich Central students and parents were aware, would soon become aware, content Craig’s book. book self published and allegations do sug ‐ gest any age restriction that would prevent students from accessing book. In addition, Craig’s complaint quotes letter from District Superintendent cited “concerns from members School District community regarding publication your book.” Compl. ¶ Moreover, Craig anticipated students would read Fault”— why else would he thank “students clients who con ‐ sistently reach out me during rough times world relationships” encourage them “[k]eep listening learning”?
When faced inevitability becom ing common knowledge Rich Central, Defendants reason ably gauged how students’ response would impact condi tions school. For example, can easily see how fe male students may feel uncomfortable seeking advice from Craig given professed inability refrain from sexualiz ing females. book, confesses “weakness cleavage” another portion woman’s anatomy admits momentarily distracts him during en counters women. Knowing tendency objectify women, Defendants could reasonably anticipate some female students would feel uncomfortable reaching out advice. Indeed, students may forego receiv ing school’s counseling services entirely rather than take risk view them person but stead object. Defendants had terminating employment ensure effective delivery counseling services female students Central.
Moreover, Defendants reasonably expected that some students would be apprehensive about asking Craig for help given views on women. For example, asserts that women do not succeed relationships of their ten dency to “act based on emotion alone instead of emotion plus intellect.” Is it unreasonable to think female Rich Cen tral student who learned that believed women not inclined to rational thought may decide against visiting office for career other advice? think not. Nor would be unreasonable believe high school girl would keep her relationship problems herself knowing stressed book importance of woman’s sexual “submis siveness” her male partner. These portions of addressed subjects inextricably related issues female high student may seek advice her guidance counselor. Defendants reasonably concluded these students, knowing Craig’s views these topics, would decline ask help.
Defendants’ interests protecting integrity coun seling services Central dwarfed Craig’s publishing Fault.” Although Craig’s touched concern, view relationships sort topic expression Defendants require compelling reason restrict. Eberhardt (“The less serious, portentous, political, significant genre expression, less imposing justification government must put forth permitted sup press expression.”). light minimal weight interest, conclude Defendants’ inter ests preventing likely disruption their guidance coun seling service sufficient justify discharge. termination did offend Amendment. 13 1398
Craig argues upholding his termination based on the reaction students parents amount an impermissible “heckler’s veto” unpopular is silenced by the possibility the community’s reaction it. generally Feiner v. New York , (1951) (“We are well aware the ordinary murmurings objections hostile audience cannot be allowed silence speak ‐ er.”). But this argument does not account unique rela tionship between students at Rich Central nature speech; students are not “outsiders seek ing heckle [Craig] into silence, rather they participants education, without whose cooperation edu cation practical cannot function.” Melzer F.3d 199. Given nature this case, we think appropriate consider Defendants’ interests preserving safe coun seling environment Central part our analysis. also maintains cannot affirm dismissal suit on this ground record devel oped enough weigh Defendants’ respective interests. have previously noted this analysis “can seldom be done basis pleadings alone.” Delgado Jones F.3d (7th Cir. 2002); see Gustafson Jones F.3d (7th 1997) (“Normally, applica tion Pickering balancing test will be possible only after parties have had opportunity conduct dis covery.”). But one those rare “case[s] where plain tiff, pleading too much, has pled [him]self out court.” Khuans By incorporating Charges into allegations, provided us adequate basis perform Pickering balancing test. While most retaliation claims will amenable resolution pleadings, complaint supporting documents place case category exception rather than rule.
III. CONCLUSION court’s judgment A FFIRMED .
[1] When reviewing motion dismiss, court generally considers factual allegations complaint any reasonable inferences can drawn from those allegations. See Gessert United States F.3d (7th Cir. 2013). But court may examine information from documents referenced complaint plaintiff relies upon support its claim. Williamson Curran (7th 2013) (“What makes appropriate us consider documents … [plaintiff] only cited them body her complaint, but she has, degree, relied their contents as support her claims.”). Consistent these principles, our factual summary includes infor mation drawn from documents mentioned complaint upon claim depends: book, letter from superintendent Donna Leak, well Charges Bill Particu lars Leak attached her letter. See, e.g. Compl. ¶¶
[2] note case does present set facts courts have typically applied “matter concern” analysis. test designed help courts distinguish between protected unpro (continued…)