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Harnishfeger v. United States

United States District Court, S.D. Indiana, Indianapolis Division

March 29, 2018

UNITED STATES OF AMERICA, LOUIS LOPEZ in his official capacity as the Indiana State Director for the AmeriCorps VISTA Program and his individual capacity, EMILY KUBISZEWSKI in her official capacity as Program Officer for the AmeriCorps VISTA Program and her individual capacity, and COL. LISA KOPCZYNSKI in her official capacity as Family Programs Director of the Indiana National Guard and in her individual capacity, Defendants.



         This matter is before the Court on a Motion to Dismiss filed by Defendants, Louis Lopez (“Lopez”), Emily Kubiszewski (“Kubiszewski”) and Col. Lisa Kopczynski (“Kopczynski”) (collectively, the “Individual Defendants”) (Filing No. 20); and a Motion to Dismiss, or in the Alternative, for Summary Judgment filed by Defendant United States of America (the “Government”) (collectively with the Individual Defendants, the “Defendants”), (Filing No. 22) . Also pending is a Motion for Partial Summary Judgment filed by Plaintiff Amy Harnishfeger (“Harnishfeger”) (Filing No. 27). On November 6, 2016, Harnishfeger filed a Complaint for Declaratory and Injunctive Relief and Damages. She alleges violation of her First Amendment rights after she was terminated as a result of her publication of a book describing disturbing conversations that she had with men while she was employed a phone-sex operator. In their Motions, the Defendants assert that they cannot be liable for violating Harnishfeger's First Amendment rights because Harnishfeger did not speak on a matter of public concern and because her interests in speaking as a public employee did not outweigh the Defendants' interests in promoting the efficient provision of government services (Filing No. 21 at 17-21; Filing No. 23 at 23-36; Filing No. 32 at 31-50). Additionally, the Defendants assert that even if Harnishfeger could demonstrate that they violated her First Amendment rights, she had no cause of action through which she could hold any of the Individual Defendants or the Government liable (Filing No. 21 at 7-26; Filing No. 23 at 12-17). In contrast, Harnishfeger contends that she is entitled to summary judgment-on all issues other than damages-because her speech was not related to her public role, was on a matter of public concern, and did not negatively affect the efficiency of governmental operations enough to justify suppression (Filing No. 28 at 24-60). For the following reasons, the Court GRANTS the Individual Defendants' Motion to Dismiss and the Government's Motion to Dismiss, or in the Alternative, Motion for Summary Judgment, and DENIES Harnishfeger's Motion for Partial Summary Judgment.

         I. BACKGROUND

         A. The Parties

         The United States of America is named as a defendant pursuant to the Administrative Procedures Act, 5 U.S.C. § 701, et seq. (the “APA”). The APA is the federal statute that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations. Lopez is the Indiana State Director for the AmeriCorps VISTA Program. Kubiszewski is a duly appointed Indiana State Program Officer for the AmeriCorps VISTA Program. Kopczynski is the duly appointed State Family Programs Director for the Indiana National Guard. Noelle Butler is a duly appointed Family Advocacy Specialist for the Indiana National Guard.

         B. Factual Background

         In June 2016, Harnishfeger was selected by the federal Corporation for National and Community Service (“CNCS”) to participate as a volunteer in the AmeriCorps Volunteers in Service to America Program (“VISTA”) (Filing No. 27-1 at 3). VISTA is a national service program designed to fight poverty in the United States (Filing No. 27-1 at 3). Under the program, persons apply to participate directly with CNCS and, if selected by CNCS as a VISTA volunteer, the person applies separately to work at public or nonprofit organizations located in communities across America. (Filing No. 27-1 at 3.) As benefits for their work, VISTA volunteers receive a living allowance, professional development training, federal non-competitive eligibility status for federal employment, and an additional educational stipend or cash bonus upon the conclusion of their service.[1]

         On June 24, 2016, Harnishfeger was placed with the Indiana National Guard (the “National Guard”) through VISTA to work as part of the National Guard's State Family Programs office (Filing No. 27-1 at 3-4, 6). The National Guard's State Family Programs (the “Family Programs”) provides a variety of services to members of the National Guard and their families, including financial services, deployment readiness programs, youth programs, and aid to sexual and domestic violence victims. Family Resources, Indiana National Guard (March 21, 2018 9:33 AM), Although it required her to move from Tennessee to Indianapolis, Indiana, Harnishfeger sought placement with the National Guard because she had always wanted to work with veterans and their families (Filing No. 27-1 at 3-4). Harnishfeger's responsibilities largely consisted of data entry tasks, including populating a database of local food banks, shelters, and other non-profit organizations that could be resources for veterans and their families through the Family Program website (Filing No. 27-1 at 4). While most of the information she needed was already available to her, Harnishfeger occasionally had to contact organizations directly to acquire the necessary information for the Family Program's database (Filing No. 27-1 at 4). Harnishfeger generally contacted such organizations over the telephone, but in instances where no contact information was available, she reached out to these organizations using her personal Facebook account (Filing No. 27-1 at 4-5; Filing No. 23-4). Specifically, Harnishfeger would use her personal Facebook account, which listed her employment status as “Military and Veteran Resource Outreach at Indiana National Guard, ” to comment or post directly onto the organizations' Facebook pages (Filing No. 21-3; Filing No. 27-1 at 5).

         Prior to beginning her work as a VISTA volunteer, Harnishfeger worked as a phone sex operator for several different companies (Filing No. 27-1 at 1). In May 2016, one month before being placed with the National Guard, Harnishfeger self-published a short book entitled “Conversations with Monsters: 5 chilling, depraved and deviant phone sex conversations” (“Conversations with Monsters”) under the pseudonym “A.M. Raddatz” (Filing No. 21-2). Conversations with Monsters provides recitations of five phone sex conversations, each of which describes fantasies involving sexual abuse, sexual assault, or violence directed towards children (Filing No. 21-2; Filing No. 27-1 at 1-2). Harnishfeger concedes that the conversations themselves are vile, disturbing and uncomfortable to read: each concerns pedophilic fantasies, several incestual, and two describe public masturbation. Id. She also incorporates some commentary into the conversations to provide context and to describe her feelings about the conversations (Filing No. 21-2). The conversations are titled: (1) Weekend Daddy and his “date” to McDonalds; (2) Drugging, raping and killing his 9 year old; (3) Jacking off under cape getting haircut; (4) Middle School DJ-pop, drop and lock it; and (5) Female caller-raping her daughter to have a baby. (Filing No. 23-2 at 4.)

         In addition to the conversations themselves, Harnishfeger included an introduction and a conclusion in Conversations with Monsters to describe her thoughts and motivations for writing the book. In her introduction, Harnishfeger stated that she does not know “what quite possessed [her] to write” Conversations with Monsters (Filing No. 21-2 at 6). She proposed that perhaps she was motivated to write the book as “a purge of sorts or maybe … just to let others know about the monsters that may reside next door or ones that you may even live with” (Filing No. 21-2 at 6). She also wrote that Conversations with Monsters may be meant “to rip the rose colored glasses off of the phone sex industry” and to encourage people to watch men around them more carefully (Filing No. 21-2 at 7). Furthermore, Harnishfeger postulated, “Did I write this to scare you? Perhaps, but I more than likely I [sic] wrote it because it scares me” (Filing No. 21-2 at 7). In her conclusion, Harnishfeger contemplated whether phone sex operators, like herself, in some way encourage individuals with such fantasies to carry them out or whether they instead fill a need for such individuals and prevent them from acting on their thoughts (Filing No. 21-2 at 34-35).

         On June 2, 2016, Harnishfeger wrote a post on her personal Facebook page stating that she had finished and published Conversations with Monsters and that people could purchase her book through a link she provided to (Filing No. 21-3; Filing No. 27-1 at 2). At all relevant times, Harnishfeger's personal Facebook account was set to private and only allowed members of the general public to view limited information about her (Filing No. 27-1 at 2, 5). Under this privacy setting, only Harnishfeger's Facebook friends could view her individual posts, and anyone wishing to see her individual posts would have to submit a request and be accepted as one of Harnishfeger's Facebook friends (Filing No. 27-1 at 2).

         In September 2016, Harnishfeger's direct supervisor with the National Guard, Noelle Butler (“Butler”), requested to be Harnishfeger's Facebook friend (Filing No. 1 at 5; Filing No. 27-1 at 6). Based on their working relationship, Harnishfeger felt compelled to, and did, accept Butler's friend request (Filing No. 27-1 at 6). After becoming one of Harnishfeger's Facebook friends, Butler discovered Harnishfeger's June 2, 2016 Facebook post advertising Conversations with Monsters and informed Kopczynski, the State Family Programs Director for the National Guard, about the book (Filing No. 1 at 5; Filing No. 27-1 at 6).

         On September 29, 2016, Kopczynski set up a meeting with Harnishfeger and Butler to discuss Conversations with Monsters (Filing No. 27-1 at 6). During that meeting, Kopczynski told Harnishfeger that Conversations with Monsters reflected poorly on the National Guard and the Family Program, which often worked with victims of domestic violence and abuse, and that she was being removed from her placement with the National Guard (Filing No. 27-1 at 6). Kopczynski formally requested Harnishfeger's removal on September 28, 2016, stating that Harnishfeger's Conversations with Monsters contained graphic content “in direct contrast with the Indiana National Guard's Domestic Violence Prevention and Response Plan” and that Harnishfeger's “public displays on social media do not reflect a positive image” of the National Guard (Filing No. 23-5 at 2-3).

         On September 29, 2016, Harnishfeger received a letter from Lopez via email, the CNCS Indiana State Program Director, informing her she had been removed from the National Guard effective as of that day (Filing No. 27-1 at 7, 34). The letter stated that when a sponsoring organization [the National Guard] requests the removal of a VISTA member from a project, CNCS complies. (See Filing No. 1-2 at 1.) Lopez's letter further notified Harnishfeger that she would be placed in Administrative Hold status for no longer than thirty days and that she would continue to receive her regular living allowance while in Administrative Hold status (Filing No. 27-1 at 34).

         On October 6, 2016, Kubiszewski, a CNCS State Program Officer, sent a letter to Harnishfeger, indicating that CNCS was required to honor the National Guard's removal request.[2]Harnishfeger was informed that she had until October 25, 2016 to secure another VISTA assignment (Filing No. 27-1 at 35). Kubiszewski also included a list of twenty-three other VISTA sponsored organizations in Indiana with which Harnishfeger could seek reassignment (Filing No. 27-1 at 35-37). Several of the sponsoring organizations were located in Indianapolis. Id. at 37. Kubiszewski warned Harnishfeger that if she could not secure a suitable assignment by October 25, 2016, she would be terminated from VISTA for lack of suitable assignment (Filing No. 27-1 at 36).

         Harnishfeger found most of the organizations from the list provided by Kubiszewski unappealing because they did not involve work with veterans, nonetheless, she contacted five of the listed organizations (Filing No. 27-1 at 8-9). Of those five organizations, she received a response from only one organization located in Bloomington, Indiana (Filing No. 27-1 at 9). However, Harnishfeger determined that this organization did not provide a “realistic alternative” for her because she could not afford to commute from Indianapolis to Bloomington for that position (Filing No. 27-1 at 9). Because Harnishfeger did not secure a new placement within the thirty days she was allotted, VISTA terminated her volunteer status on October 25, 2016 (Filing No. 27-1 at 38).

         Harnishfeger initiated this lawsuit on November 6, 2016, alleging that the Defendants violated her First Amendment rights by removing her from the National Guard and subsequently terminating her from VISTA (Filing No. 1). Harnishfeger further alleged that, to the extent her termination from VISTA constitutes a “final agency action, ” the termination was ...

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