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Zimmerman v. University of Utah

United States District Court, D. Utah

August 14, 2017

JUDITH PINBOROUGH ZIMMERMAN, Plaintiff,
v.
UNIVERSITY OF UTAH and WILLIAM MCMAHON, Defendants.

          MEMORANDUM DECISION AND ORDER GRANTING SUMMARY JUDGMENT ON PLAINTIFF'S SEVENTH CAUSE OF ACTION

          Jill N. Parrish United States District Court Judge

         Before the court is a Motion for Partial Summary Judgment filed by Defendants University of Utah and William McMahon. (Docket No. 103). Defendants ask this court to enter summary judgment as to Plaintiff Judith Pinborough Zimmerman's Seventh Cause of Action, a claim of retaliation in violation of the First Amendment to the United States Constitution. As explained below, the court finds the Motion to be well-taken and holds that Defendants are entitled to summary judgment and dismissal of Plaintiff's Seventh Cause of Action.

         BACKGROUND

         This lawsuit arises from a long-simmering employment dispute that eventually resulted in the termination of Plaintiff, Dr. Judith Pinborough Zimmerman, from her position as a Research Assistant Professor in the Department of Psychiatry at the University of Utah. Prior to her termination, Plaintiff was employed by the University's School of Medicine not only as a researcher, but also as director of the Utah Registry of Autism and Developmental Disabilities (“URADD”), a database of medical and educational data related to autism and other developmental disorders gathered from various clinics, hospitals, schools, and special education programs. Plaintiff was evidently instrumental in the creation of URADD prior to her employment at the University of Utah and was hired to maintain and develop the database once the University began housing the data. URADD was intended as a repository for research-ready data relating to autism and other developmental disorders as well as a starting point for the dissemination of useful public health information. As director of URADD for the University, Plaintiff oversaw the maintenance of data then currently stored within the database and developed the database by negotiating new agreements with outside entities to provide additional data. Plaintiff also executed and ensured URADD's compliance with various confidentiality agreements with data sources, including the Jordan School District and various other medical and educational entities.

         The database itself is the product of overlapping interests and extensive collaboration between numerous state and national entities. The State of Utah's Department of Health (“UDOH”) originally authorized URADD's development, supervised its continued operation, regulated access to data, and owned all of the data stored in the database. The University of Utah maintained URADD's data on a campus-based computer network administered by the University's information technology organization and was therefore subject to the University's internal security and privacy regulations, state laws regarding security and privacy of confidential data, as well as oversight by the State of Utah's Department of Technology Services. The U.S. Centers for Disease Control and Prevention (“CDC”) provided the vast majority of the funding for the database. Because the data stored in URADD included confidential medical and educational information, it was subject to certain federal laws and regulations-namely, the Health Information Portability and Accountability Act of 1996 (“HIPPA”) and the Family Educational Rights and Privacy Act of 1974 (“FERPA”)-administered by the U.S. Department of Health and Human Services and the U.S. Department of Education.

         During the course of Plaintiff's employment, her relationship with her direct supervisor, Defendant Dr. William McMahon, and certain other researchers, including Drs. Amanda Bakian and Deborah Bilder, was often characterized by significant friction. During 2011, 2012, and early 2013, Plaintiff filed numerous complaints to multiple individuals and entities regarding Drs. McMahon, Bakian, and Bilder, alleging unauthorized access to confidential URADD data, disruption of her grant-related work, plagiarism, and other misconduct. Plaintiff's Seventh Cause of Action revolves around her allegation that these complaints triggered significant retaliation from Dr. McMahon and other individuals, culminating Plaintiff's removal as director of URADD and her eventual termination from employment at the University. Plaintiff alleges that this retaliation was in direct violation of her First Amendment rights and accordingly seeks both injunctive and monetary relief.

         On November 29, 2016, Defendants filed the instant Motion for summary judgment on Plaintiff's Seventh Cause of Action, arguing that all of her reports and communications were made pursuant to her official duties and were therefore not actionable under the First Amendment. (Docket No. 103). Plaintiff filed a memorandum in opposition to the Motion on January 17, 2017. (Docket No. 107). Defendants replied on January 30, 2017. (Docket No. 108). The court heard argument on the Motion on June 8, 2017. (Docket No. 113). The court now considers the arguments of the parties under jurisdiction granted by 28 U.S.C. § 1331.

         STANDARD

         Rule 56 provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In applying this standard, the court must “construe the evidence and the reasonable inferences drawn therefrom in the light most favorable to the nonmovant.” Sally Beauty Co. v. Beautyco, Inc., 304 F.3d 964, 972 (10th Cir. 2002); see also Water Pik, Inc. v. Med-Sys., Inc., 726 F.3d 1136, 1143 (10th Cir. 2013) (“The nonmoving party is entitled to all reasonable inferences from the record.”). However, the nonmoving party “is entitled to only those inferences that are ‘reasonable.'” See Hornady Mfg. Co. v. Doubletap, Inc., 746 F.3d 995, 1004 (10th Cir. 2014). “A fact is ‘material' if, under the governing law, it could have an effect on the outcome of the lawsuit. A dispute over a material fact is genuine if a rational jury could find in favor of the nonmoving party on the evidence presented.” Tabor v. Hilti, Inc., 73 F.3d 1206, 1215 (10th Cir. 2013) (quoting E.E.O.C. v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000)).

         “[T]he movant bears the burden of showing the absence of a genuine issue of material fact, [but] the movant need not negate the nonmovant's claim.” Jenkins v. Wood, 81 F.3d 988, 990 (10th Cir. 1996). “[A] movant may make its prima facie demonstration by pointing out to the court a lack of evidence on an essential element of the nonmovant's claim.” Libertarian Party of N.M. v. Herrera, 506 F.3d 1303, 1309 (10th Cir. 2007). Once the movant meets this initial burden, the “nonmovant may not rest on its pleadings, but must bring forward specific facts showing a genuine issue for trial as to those dispositive matter for which it carries the burden of proof.” Jenkins, 81 F.3d at 990. The court also recognizes that “conclusory allegations without specific supporting facts have no probative value” and that a conclusory affidavit is “insufficient to support summary judgment.” Fitzgerald v. Corrections Corp. of Am., 403 F.3d 1134, 1145 (10th Cir. 2005) (internal citations and quotations omitted). Ultimately, “the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

         Here, Plaintiff purports to dispute approximately twelve of Defendants' statements of undisputed material fact. However, many of Plaintiff's disputes are plainly not material to the outcome of this Motion. See Birch v. Polaris Indus., Inc., 812 F.3d 1238, 1251 (10th Cir. 2015) (“Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.”). These include Plaintiff's assertion that she was in fact a “principal investigator” and not a “co-principal investigator.” (Docket No. 107, at 2).

         The remaining disputes are mostly disagreements with Defendants' characterization of certain facts or assertions that Defendants have failed to list certain relevant communications. In particular, Plaintiff argues that many of her reports of potential misconduct were not concerned solely with “privacy” but with “plagiarism” or other misconduct. (See, e.g., Docket No. 107, at 3). These are not genuine disputes of fact, but rather inferences drawn from material facts that the court will evaluate in more detail below. Additionally, the court notes that Defendants do not appear to dispute that Plaintiff made certain additional reports beyond what they term “privacy concerns, ” including a report of financial misconduct by Plaintiff's supervisor and coworkers. Accordingly, the court treats all of the facts recited in this decision-stripped of both parties' characterizations and legal arguments-as undisputed for purposes of this Motion.

         As there is “no genuine issue as to any material fact, ” the court need only apply the relevant substantive law to the undisputed facts[1] in order to determine if Defendants are entitled to summary judgement as a matter of law. See Fed. R. Civ. P. 56(a); BancOklahoma Mortg. Corp. v. Capital Title Co., 194 F.3d 1089, 1097 (10th Cir. 1999) (indicating that, under Rule 56, district courts must determine “whether any genuine issue of material fact [is] in dispute, and, if not, whether the moving party [is] entitled to judgment as a matter of law”).

         DISCUSSION

         The relevant substantive law in this instance arises from the First Amendment's guarantee of the right of the citizenry to “freedom of speech.” See U.S. Const. amend. I. Plaintiff's Seventh Cause of Action alleges that Defendants retaliated against her “because she engaged in speech that addressed a matter of public concern. Specifically, [Plaintiff] spoke out and identified her concerns about . . . privacy issues and unauthorized access to secure data at the University.” (Docket No. 32, at 24-25). As a public employee, Plaintiff did “not relinquish First Amendment rights to comment on matters of public interest by virtue of [her] government employment.” Connick v. Myers, 461 U.S. 138, 140 (1983). At the same time, “the State's interests as an employer in regulating the speech of its employees ‘differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.'” Id. (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)). In other words, “while the First Amendment invests public employees with certain rights, it does not empower them to constitutionalize the employee grievance.” Garcetti v. Ceballos, 547 U.S. 410, 420 (2006). In order to balance these competing interests, the court employs the “Garcetti/Pickering analysis, ” Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1202 (10th Cir. 2007), an analytical approach based on the Supreme Court's twin opinions in Garcetti v. Ceballos, 547 U.S. at 410, and Pickering v. Bd. of Educ., 391 U.S. at 563. The analysis which determines whether a public employee's speech is protected from employer retaliation by the First Amendment consists of five steps:

(1) whether the speech was made pursuant to an employee's official duties; (2) whether the speech was on a matter of public concern; (3) whether the government's interests, as employer, in promoting the efficiency of the public service are sufficient to outweigh the plaintiff's free speech interests; (4) whether the protected speech was a motivating factor in the adverse employment action; and (5) whether the defendant would have reached the same employment decision in the absence of the protected conduct.

Dixon v. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir. 2009). The only step at issue in the instant Motion is the first-“whether the speech was made pursuant to [Plaintiff's] official duties.” See id.

         I.EMPLOYEE SPEECH PURSUANT TO OFFICIAL DUTY

         The first step of the Garcetti/Pickering analysis is an issue of law “to be resolved by the district court, ” see Brammer-Hoelter, 492 F.3d at 1203, which requires “review [of] disputed facts . . . in the light most favorable to the non-moving party at the summary judgment stage, ” Rohrbough v. Univ. of Colo. Hosp. Auth., 596 F.3d 741, 746 (10th Cir. 2010). This step is based on a seemingly simple premise: “[W]hen public employees speak ‘pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.'” Casey v. W. Las Vegas Indep. Sch. Dist., 473 F.3d 1323, 1328 (10th Cir. 2007) (quoting Garcetti, 547 U.S. at 421); Brammer-Hoelter, 492 F.3d at 1202 (quoting Garcetti, 547 U.S. at 422) (“If the employee speaks pursuant to [her] official duties, then there is no constitutional protection because the restriction on speech ‘simply reflects the exercise of employer control over what the employer itself has commissioned or created.'”). Neither the Supreme Court nor the Tenth Circuit has “developed a set of bright line rules to determine when an employee speaks pursuant to her official duties.” Rohrbough, 596 F.3d at 746. But the Tenth Circuit has “taken a broad view of the meaning of speech that is pursuant to an employee's official duties, ” Thomas v. City of Blanchard, 548 F.3d 1317, 1324 (10th Cir. 2008) (quotations omitted), and has characterized the first step as a “heavy barrier” to claims of First Amendment retaliation by public employees, see Casey, 473 F.3d at 1331.

         The official duties of a government employee may be explicitly spelled out in an employment contract or otherwise specifically delineated by the employer. See Id. at 1329 (citing Garcetti, 547 U.S. at 419-21) (indicating that speech concerning a matter within the employee's “portfolio” is made “pursuant to her official duties”). Nevertheless, “[a]n employee's official job description is not dispositive, . . . because speech may be made pursuant to an employee's official duties even if it deals with activities that the employee is not expressly required to perform.” Brammer-Hoelter, 492 F.3d at 1203. Even speech that “concerns an unusual aspect of an employee's job that is not part of [her] everyday functions” may be made “pursuant to official duties if it is generally consistent with ‘the type of activities [the employee] was paid to do.'” Id. (alterations added and in original) (citing Green v. Bd. of Cty. Comm'rs, 472 F.3d 794, 801 (10th Cir. 2007)). Ultimately, the court must determine “‘whether the employee speaks as a citizen or instead as a government employee.'” Rohrbough v. Univ. of Colo. Hosp. Auth., 596 F.3d 741, 746 (10th Cir. 2010) (quoting Brammer-Hoelter, 492 F.3d at 1203). To this end, the Tenth Circuit has prescribed a “case-by-case approach, looking both to [1] the content of the speech, as well as [2] the employee's chosen audience, to determine whether the speech is made pursuant to an employee's official duties.” Id.

         A. CONTENT OF EMPLOYEE SPEECH

         In keeping with this approach, the court must first evaluate whether the content of the speech indicates that it was made pursuant to the employee's official duties. Id. In making this evaluation, the court “must take a practical view of all the facts and circumstances surrounding the speech and the employment relationship.” Brammer-Hoelter, 492 F.3d at 1204. The Tenth Circuit has explained that “if an employee engages in speech during the course of performing an official duty and the speech reasonably contributes to or facilitates the employee's performance of the official duty, the speech is made pursuant to the employee's official duties.” Id. at 1203. However, the Tenth Circuit also cautioned that “not all speech that occurs at work is made pursuant to an employee's official duties. Nor is all speech about the subject matter of an employee's work necessarily made pursuant to the employee's official duties.” Id. at 1204 (internal citations and footnote omitted) (citing Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 693 (5th Cir. 2007); Garcetti, 547 U.S. at 419-423). Nevertheless, as noted above, speech may “be considered within the scope of an employee's official duty even if ‘the speech concerns an unusual aspect of an employee's job that is not part of [her] everyday functions.'” Rohrbough, 596 F.3d at 749 (quoting Brammer-Hoelter, 492 F.3d at 1203).

         In the context of an employee's report of alleged wrongdoing, the fact that the content of the report deals with the employee's work may not be dispositive. In Thomas, for example, the Tenth Circuit held that a city home inspector was not acting pursuant to his official duties when he reported suspected fraudulent inspection certificates to a state oversight board. The Thomas court reasoned that, although the alleged wrongdoing was technically related to the inspector's job, he “was not hired to detect fraud in connection with the issuance of certificates of occupancy; he was hired to inspect houses.” 548 F.3d at 1324. His independent report to a state agency therefore “went well beyond his official responsibilities.” Id. Thus, a finding that “the employee's job responsibilities d[o] not relate to reporting wrongdoing” suggests that the employee's report was not made pursuant to official duties. See Reinhardt v. Albuquerque Pub. Schs. Bd. of Educ., 595 F.3d 1126, 1135-36 (10th Cir. 2010); id. at 1136 (finding that a teacher's filing of a state complaint regarding federal regulatory compliance in public schools was not pursuant to her official duties because “she was not hired to ensure . . . compliance, ” but to “provide speech and language services . . . to students”); Casey, 473 F.3d at 1332-33 (finding that director of an educational program was not acting pursuant to her official duties when she reported a school board's alleged violation of the Open Meetings Act to a state attorney general because she had no official “responsibility for the [b]oard's meeting practices”).

         At the same time, a finding that an employee's duties implicated the reporting of wrongdoing or noncompliance suggests that any reports of wrongdoing or noncompliance are made pursuant to official duties. See Casey, 473 F.3d at 1330-31. In Casey, the Tenth Circuit held that the director of a state educational program acted pursuant to official duties when she reported a school board's potential violations of certain federal regulations. As will be explored in more detail below, the Casey court explained that the director's “responsibilities . . . included a duty to report the [school] [d]istrict's noncompliance to federal authorities because she would be held legally responsible for having knowledge of” potential violations and failing to report them to proper authorities. Id. at 1330 (quotations omitted). Although not explicitly a part of the director's duties, such reporting arose naturally from the position she held and was therefore implicitly required of her as director of the educational program. See Id. at 1330-31. Such an evaluation reflects the “practical view of all the facts and circumstances surrounding the speech and the employment relationship” that courts must take when evaluating a government employee's claim to First Amendment protection. See Brammer-Hoelter, 492 F.3d at 1204.

         B. EMPLOYEE'S CHOSEN AUDIENCE

         Next, the court must evaluate whether the “employee's chosen audience, or chosen method of disseminating speech” indicates that the speech was made pursuant to the employee's official duties. Rohrbough, 596 F.3d at 747. A useful example of this evaluation arose in Brammer-Hoelter, where the Tenth Circuit found that some of the plaintiff teachers' speech regarding teacher salaries and staffing levels was not made pursuant to their official duties and was therefore entitled to First Amendment protection. 492 F.3d at 1205. In reaching that conclusion, the court emphasized that the speech was directed at “ordinary citizens and parents” and occurred after school hours and off school grounds. Id. Although the content of the speech was clearly related to the teachers' official duties and had significant bearing on their day-to-day work, the speech was not made pursuant to their official duties because of their chosen audience and the circumstances of the communication. Id. Similarly, the Garcetti Court explained that “[e]mployees who make public statements outside the course of performing their official duties retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government.” 547 U.S. at 423. Thus, “communicating with newspapers or . . . legislators” regarding work-related issues or participating in “some similar activity afforded citizens” is likely not a part of the employee's official duties. See Green, 472 F.3d at 800. By contrast, speech is less likely to be protected “when there is ‘no relevant analogue to speech by citizens who are not government employees.'” Rohrbough, 596 F.3d at 746 (quoting Garcetti, 547 U.S. at 424).

         In the context of an employee's reports of alleged wrongdoing, “speech directed at an individual or entity within an employee's chain of command is often found to be pursuant to that employee's official duties.” Id. at 747 (emphasis added); see also Davis v. McKinney, 518 F.3d 304, 313 (5th Cir. 2008) (“Cases from other circuits are consistent in holding that when a public employee raises complaints or concerns up the chain of command at his workplace about his job duties, that speech is undertaken in the course of performing his job.”). At the same time, “speech directed at an individual or entity outside of [the] employee's chain of command is often outside of [the] employee's official duties.” Rohrbough, 596 F.3d at 747 (emphasis added) (citing Thomas, 548 F.3d at 1325; Casey, 473 F.3d at 1332-33). Indeed, “it would be going too far to hold that every time a public employee discovers alleged wrongdoing related to [her] job and brings it to the attention of law enforcement or other outside parties, the speech is unprotected.” Thomas, 548 F.3d at 1324. Nevertheless, “an employee's decision to go outside [her] ordinary chain of command does not necessarily insulate [her] speech.” Rohrbough, 596 F.3d at 747; see also Chavez-Rodriguez v. Santa Fe, 596 F.3d 708, 716 (10th Cir. 2010) (explaining that Tenth Circuit case law has not “establish[ed] a per se rule that speaking outside the chain of command is protected”). Instead, the court must ultimately decide “whether the speech ‘stemmed from and was of the type that the employee was paid to do, ' regardless of the exact role of the individual or entity to which the employee has chosen to speak.” Rohrbough, 596 F.3d at 747 (alterations omitted) (quoting Green, 472 F.3d at 798).

         II. SCOPE OF PLAINTIFF'S OFFICIAL DUTIES

         With this legal standard in mind, the court first examines Plaintiff's official duties as a researcher and as director of URADD. As a researcher, Plaintiff was expressly expected to orchestrate “new studies of autism and other developmental disabilities, ” and “collaborate in the development of new research grant applications and contracts.” (Docket No. 103-6, at 2). As the director of URADD, Plaintiff was to “maintain and develop” the database. (Id.). Plaintiff also appears to concede that these URADD-related responsibilities included maintaining the integrity and confidentiality of protected health and educational information stored in the database and ensuring general compliance with grant requirements, federal and state privacy laws, as well as the terms of data-sharing and confidentiality agreements.

         However, at oral argument and in briefing, Plaintiff insisted that her undisputed duties to maintain URADD and to preserve the privacy of protected health and educational data stored therein did not include any duty to report suspected data breaches or privacy violations to appropriate authorities. Plaintiff urged that there was no written evidence in the record that indicated such reporting was within Plaintiff's official duties as director of URADD. (See Docket No. 107, at 11). But “[a]n employee's official job description is not dispositive . . . because speech may be made pursuant to an employee's official duties even if it deals with activities that the employee is not expressly required to perform.” Brammer-Hoelter, 492 F.3d at 1203. Instead, when “an employee engages in speech during the course of performing an official duty and the speech reasonably contributes to or facilitates the employee's performance of the official duty, the speech is made pursuant to the employee's official duties.” Id.

         Here, the reporting of privacy violations and data breaches to proper authorities did far more than “reasonably contribute[] to or facilitate[]” Plaintiff's “performance of [her] official duties”-the reporting was absolutely crucial to her work as a researcher and as director of URADD. Indeed, the security and confidentiality of data was essential to the continuance of Plaintiff's research and the ongoing viability of URADD itself. Plaintiff herself explained in one version of her complaint:

As principal investigator [(“PI”)] . . . on a Centers for Disease Control and Prevention . . . autism surveillance grant, PI on a contract with the Utah State Office of Education, and director of the Utah Registry of Autism and Development Disabilities (URADD)[, ] I have committed to [data] grantors nondisclosure of identifiable health and education data and adherence to strict security and confidentiality agreements . . . . Personnel and co-investigators are required to sign non-disclosure statements and are granted access to data on a need to know basis.

(Docket No. 103-6, at 50 (emphasis added)).

         Plaintiff could not possibly uphold her contractual obligations to protect confidential research data as a principal investigator or preserve the integrity and security of URADD while failing to properly address data breaches or other privacy violations. Failure to address data breaches or other privacy violations would necessarily undermine Plaintiff's efforts to secure additional data or maintain the data she already had. In other words, it cannot seriously be argued that Plaintiff could keep such issues to herself and keep her job. See Hornady Mfg. Co., 746 F.3d at 1004 (“On summary judgment . . . a nonmovant is entitled to only those inferences that are reasonable.”); cf. Casey, 473 F.3d at 1330 (“[A]t the time these events took place, individuals, like Ms. Casey, with knowledge of financial irregularities risked civil and criminal liability by remaining silent in the face of such knowledge.”). Thus, as a general matter, any reports of privacy issues and unauthorized data access made to proper authorities necessarily “stemmed from and were the type of activities that [Plaintiff] was paid to do.” See Green, 472 F.3d at 801. Accordingly, the court finds that Plaintiff had an official duty to report suspected data breaches and privacy violations related to her research and URADD to proper authorities as a matter of law.

         With this affirmative duty in mind, the court can easily identify a handful of communications alleged by Plaintiff that were indisputably made “in . . . her professional capacity.” See Garcetti, 547 U.S. at 424. Specifically, (1) Plaintiff's various communications with the Utah Department of Health (“UDOH”), (2) her report to the University Information Security and Privacy Office (“UISP”), and (3) her complaint to the University's Institutional Review Board were all made pursuant to her official duty as director of URADD as a matter of law. This conclusion is evinced by both the content and the chosen audience of these communications. See Rohrbough, 596 F.3d at 746-47.

         As to content, Plaintiff testified that her reports to UDOH dealt with her concerns “[r]elated to privacy and URADD and the data, ” (Docket No. 103-2, at 56). Likewise, her initial report to the University's Institutional Review Board was entitled “Privacy [C]oncern” and dealt with a potential “breach of confidentiality or privacy” by Drs. McMahon and Baikan related to URADD data. (Docket No. 103-6, at 52). And Plaintiff's complaint to the UISP similarly revolved around an allegation “that Dr. . . . McMahon had accessed data in violation of HIPPA, HITECH, and FERPA regulations.” (Docket No. 103-6, at 6). Each of these concerns fell squarely within Plaintiff's duty to maintain the security of URADD data and to report potential breaches of privacy related to that data, strongly indicating that these communications were made pursuant to Plaintiff's official duties.

         As to her chosen audience, Plaintiff made these reports to UDOH, an entity to which she had independent obligations to maintain the privacy of identifiable data, (see Docket No. 103-1, at 19-20 (indicating that URADD data was the property of UDOH)); the UISP, an entity tasked with overseeing data security and privacy in the University, (see Docket No. 103-6, at 6-7 (outlining the UISP's findings after its investigation of Plaintiff's allegation)); and the University's Institutional Review Board, an entity that apparently has administrative oversight of research conduct at the University, (see Docket No. 107-1, at 43-44 (detailing Plaintiff's reports to this entity)). The evidence in the record indicates that all of these entities were within Plaintiff's ordinary chain of command. See Rohrbough, 596 F.3d at 747 (“[S]peech directed at an individual or entity within an employee's chain of command is often found to be pursuant to that employee's official duties.”); Thomas, 548 F.3d at 1325 n.1 (explaining that outside agencies may nonetheless be within an employee's “ordinary chain of command” if the employee has independent reporting obligations to those agencies). The fact that these communications were directed to entities tasked with overseeing Plaintiff's professional obligations also strongly indicates that the communications were made pursuant to Plaintiff's official duties. See Rohrbough, 596 F.3d at 747.

         In sum, both the content of these communications and the audience to which they were directed plainly indicate that Plaintiff acted according to her official duties in reporting these concerns. Moreover, Plaintiff does not appear to dispute these findings in her briefing. Accordingly, the court finds that these particular communications were made pursuant to her official duties and are not protected speech under the First Amendment as a matter of law.

         Though it appears that the vast majority of Plaintiff's remaining claims to First Amendment protection are fatally undermined by the finding that she had an official duty to report to proper authorities any suspected data breaches and privacy violations related to her research and URADD, see Rohrbough, 596 F.3d at 746-47 (“The court has also noted that speech pursuant to an employee's duty to report a particular activity is usually within that employee's official duties.”), specific application of this finding to Plaintiff's arguments requires some additional analysis.

         III. ...


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