Richard Moss v. City of Pembroke Pines

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11240
________________________
D.C. Docket No. 0:11-cv-62595-WJZ
RICHARD MOSS,
Plaintiff-Appellant,
versus
CITY OF PEMBROKE PINES, a Municipality, BOARD OF COMMISSIONERS
FOR THE CITY OF PEMBROKE PINES, JOHN PICARELLO,
Defendants-Appellees,
FRANK C. ORTIS, individually, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 31, 2015)
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Before HULL, JULIE CARNES, and WALKER, * Circuit Judges.
JULIE CARNES, Circuit Judge:
Plaintiff appeals the district court’s order granting defendants judgment as a
matter of law on Plaintiff’s First Amendment retaliation claim. Plaintiff asserted
the claim after being terminated from his position as Assistant Fire Chief of the
City of Pembroke Pines (“the City”). Plaintiff was terminated after the City
eliminated the Assistant Fire Chief position for what the City said were budgetary
reasons. Plaintiff contends, however, that he was terminated in retaliation for his
speaking out about the City’s handling of budget and pension issues. After a trial,
the district court held that Plaintiff had failed to show that his speech was protected
by the First Amendment or that his interest in the speech outweighed the City’s
interest in avoiding dissension within the fire department. Accordingly, the district
court granted judgment as a matter of law. After a careful review of the record,
and with the benefit of oral argument, we affirm.
BACKGROUND
The City hired Plaintiff as a firefighter in 1988. Over the next 18 years,
Plaintiff steadily moved up the ranks in the City’s fire department until he was
promoted to the Assistant Fire Chief position in 2006. As the Assistant Fire Chief,
Plaintiff was second in command to Fire Chief John Picarello and involved in
*
Honorable John Walker, Jr., United States Circuit Judge for the Second Circuit, sitting
by designation.
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every aspect of running the fire department. In addition to his regular duties in the
fire department, Plaintiff was elected in 2004 to serve on the City’s pension board.
He remained on the board until he was terminated. Plaintiff’s job on the board was
to ensure that the pension plan was administered in accordance with the City’s
ordinance.
During all relevant times, the City’s fire department, police department, and
general employees had separate collective bargaining agreements between
respective unions and the City. Plaintiff joined and was active in the firefighter
union between 1989 and 2004, serving on the executive board and then as
president of the union in 2003. Throughout this time period, Plaintiff was a
member of the fire department’s bargaining unit and had rights under the collective
bargaining agreement. That ceased, however, when he accepted the Assistant Fire
Chief position. As a managerial position, the Assistant Chief position did not
permit membership in the bargaining unit or provide for rights under its collective
bargaining agreement.
In September 2009, the City approved a budget for the upcoming year that
was insufficient to fund the various collective bargaining agreements. The City
subsequently sought pension concessions and pay cuts from its employees,
claiming that it needed to renegotiate the collective bargaining agreements on the
ground of “fiscal urgency.” Although he was not directly affected, Plaintiff was
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critical of the City’s handling of the budget and collective bargaining agreement
negotiations. Plaintiff claims that he voiced his criticism to Chief Picarello,
various fire department employees, and other community members, when he
commented on several occasions between January and May 2010 that the City had
manufactured the fiscal urgency and was negotiating with employees in bad faith.
The Assistant Fire Chief position was eliminated in June 2010, and Plaintiff
was terminated. Plaintiff contends that the manner of his termination was
unprecedented, as the City had never eliminated a position from the fire
department except by attrition. In addition, Plaintiff claims that he was not
allowed to apply for a vacancy in the fire department in spite of his history of
exemplary evaluations and obvious qualification for the position. Based on these
facts, Plaintiff alleges that he was terminated in retaliation for his speech.
Following his termination, Plaintiff filed this § 1983 action against the City,
the Board of Commissioners, and Chief Picarello. The district court dismissed
Plaintiff’s claim against the Board as duplicative of his claim against the City, and
dismissed his claim against Picarello on the ground of qualified immunity.
Plaintiff did not challenge those rulings, and does not raise any arguments
concerning the Board or Picarello on appeal.
Plaintiff’s claim against the City proceeded to trial. At the close of the
evidence, the City renewed its previously filed motion for judgment as a matter of
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law. In support of its motion, the City argued that (1) Plaintiff’s speech was not
protected by the First Amendment because it was made pursuant to his official
duties and (2) the City’s interest in avoiding dissension within the fire department
outweighed Plaintiff’s interest in the speech. After hearing arguments, the district
court announced that it would grant the renewed motion in a written order to
follow.
In its written order, the district court found that Plaintiff had failed to present
evidence that he spoke in his capacity as a private citizen rather than as a fire
department employee. Accordingly, the court held that Plaintiff’s speech was not
protected by the First Amendment. Alternatively, the court held that the City’s
interest in restricting Plaintiff’s speech outweighed Plaintiff’s First Amendment
interests. As to the latter, the court’s holding was based on Chief Picarello’s
testimony that although he had instructed his staff not to get involved in the
collective bargaining agreement controversy, Plaintiff admitted that he had refused
to follow this directive. According to the court, this evidence supported the City’s
theory that Plaintiff’s speech threatened dissension within the fire department and,
as a result, First Amendment protection was not warranted.
DISCUSSION
I. Standard of Review
We review de novo the district court’s ruling on a motion for judgment as a
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matter of law. Hubbard v. BankAtlantic Bancorp., Inc., 688 F.3d 713, 723 (11th
Cir. 2012). In conducting our review, we consider all of the evidence presented at
trial and resolve any material factual disputes in favor of the nonmoving party. Id.
at 724. So viewing the evidence, the Federal Rules permit the entry of judgment as
a matter of law if “a reasonable jury would not have a legally sufficient evidentiary
basis to find for the [nonmoving] party.” Fed. R. Civ. P. 50(a)(1).
II. Analysis
Plaintiff’s First Amendment claim is governed by a four-stage analysis. See
Carter v. City of Melbourne, Fla., 731 F.3d 1161, 1168 (11th Cir. 2013). First, we
consider whether Plaintiff’s speech was made as a citizen and whether it
implicated “a matter of public concern.” Id. at 1168-69 (quoting Rankin v.
McPherson, 483 U.S. 378, 384 (1987)) (internal quotation marks omitted). If this
first threshold requirement is satisfied, we then weigh Plaintiff’s First Amendment
interests against the City’s interest in regulating his speech to promote “the
efficiency of the public services it performs through its employees.” Id. (quoting
Pickering v. Bd. of Educ., 391 U.S. 563 (1968)) (internal quotation marks omitted).
The above two issues are questions of law that are decided by the court. Battle v.
Bd. of Regents for Ga., 468 F.3d 755, 760 (11th Cir. 2006). The court’s resolution
determines whether Plaintiff’s speech is protected by the First Amendment. Id.
If his speech is so protected, the third stage of the analysis requires Plaintiff
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to show that it was a substantial motivating factor in his termination. Id. If
Plaintiff is able to make this showing, the burden shifts to the City to prove that it
would have terminated Plaintiff even in the absence of his speech. Id. Because
these final two issues, which address the causal link between Plaintiff’s speech and
his termination, are questions of fact, a jury resolves them unless the evidence is
undisputed. Id.
The present appeal concerns only the first two steps of the analysis: (1)
whether the speech at issue met the citizen-public concern requirement and (2)
whether the City’s interest in restricting that speech outweighed the employee’s
wish to be heard. Because the district court determined, as a matter of law, that
Plaintiff had failed to show that his speech was made in his capacity as a citizen or
that his First Amendment rights outweighed the City’s interest, it was unnecessary
for the court to submit to the jury the causation question encompassed by the last
two prongs of the analysis.
A. Plaintiff’s speech is not protected under Garcetti.
In Garcetti v. Ceballos, 547 U.S. 410 (2006), the Supreme Court addressed
the first prong of the First Amendment analysis, clarifying that speech made
pursuant to an employee’s job duties is not speech made as a citizen and is
therefore not protected by the First Amendment. Id. at 421. Since Garcetti, this
Court has emphasized that a public employee cannot meet the threshold for
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proving a First Amendment violation merely by showing that the speech at issue
addressed a subject of public concern. He must also show that he spoke in his
capacity as a citizen, rather than as an employee. See Hubbard v. Clayton Cnty.
Sch. Dist., 756 F.3d 1264, 1267 (11th Cir. 2014). The City does not challenge the
district court’s holding that Plaintiff spoke on a topic of public concern. The issue
on appeal then is the capacity in which he spoke.
Garcetti declined to provide a “comprehensive framework” for deciding this
question, because the plaintiff there admitted that he spoke pursuant to his official
duties. Garcetti, 547 U.S. at 424. Nevertheless, Garcetti provided some general
guidance. The central inquiry is whether the speech at issue “owes its existence”
to the employee’s professional responsibilities. Id. at 421. Factors such as the
employee’s job description, whether the speech occurred at the workplace, and
whether the speech concerns the subject matter of the employee’s job may be
relevant, but are not dispositive. Id. at 420-21, 424. Garcetti instructed that “[t]he
proper inquiry is a practical one.” Id. at 424.
1. Plaintiff’s Job Duties
The evidence presented at trial established that Plaintiff’s job duties as
Assistant Fire Chief encompassed every aspect of running the fire department. As
the Fire Chief’s second-in-command, Plaintiff was responsible for assuming all of
the Chief’s duties in his absence. On a day-to-day basis, Plaintiff supervised the
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Division Chiefs directly below him and served as a liaison between the Fire Chief
and employees down the chain of command. Plaintiff directly participated in
preparing and trying to find savings in the budget, hiring, training, and
management of employees, dispatch, and logistics. He had additional duties
arising from his service on the pension board and on several committees, including
a committee designed to foster cooperation between labor and management.
Plaintiff testified that his overarching responsibility as Assistant Fire Chief was to
ensure that the fire department provided the best service possible, from its receipt
of an emergency call to the conclusion of its response.
2. Plaintiff’s Speech
Plaintiff relies on four categories of speech to support his claim:
(1) Statements made at a February 2010 pension board meeting during
which Plaintiff told City Risk Manager Daniel Rotstein that his calculation of the
percentage of payroll required to fund the pension was inaccurate;
(2) Statements made at a May 2010 staff meeting during which Plaintiff
disagreed with his boss, Chief Picarello, that the City’s decision to outsource its
general employees did not impact the fire department and also suggested that the
City had both created a fiscal urgency and was not negotiating in good faith;
(3) Comments Plaintiff made in April and May 2010 to various fire
department employees, including Union President and Fire Captain Garcia,
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Division Chief Whitworth, and Assistant Division Chief Cunningham, that the City
was lying and negotiating in bad faith with respect to a proposal that employees
agree to pension concessions or take a 6% pay cut and to a subsequent proposal
that employees agree to concessions or take a 30% pay cut; and
(4) General conversations with “community members,” such as Plaintiff’s
family and friends, about the budget and collective bargaining agreement issues.
3. Garcetti Analysis
Plaintiff testified that all of his speech was motivated by his belief that the
City’s actions would negatively impact the fire department’s provision of services.
Plaintiff thought the collective bargaining agreement negotiations and proposed
benefit concessions would affect the fire department’s ability to attract and retain
the quality employees needed to maintain a high level of service. Plaintiff’s
witness, Assistant Division Chief Cunningham, conceded that Plaintiff’s speech
related to the fire department’s provision of services, particularly its ability to
attract and retain personnel. This testimony does not help Plaintiff, however,
because it confirms that Plaintiff’s speech was made in furtherance of his self-
described responsibilities as the City’s Assistant Fire Chief, and not as a private
citizen. See D’Angelo v. Sch. Bd. of Polk Cnty., Fla., 497 F.3d 1203, 1210-11
(11th Cir. 2007) (holding that a high school principal’s charter conversion efforts
were made in furtherance of his responsibility to obtain the best educational
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outcome for his students).
Specifically, Plaintiff attended the February 2010 pension board meeting as
a representative of the fire department and pursuant to his duties as a pension board
trustee. On their face, his comments about the costs to fund the pension were in
furtherance of his official responsibility to ensure that the pension was
administered in accordance with its governing ordinance. Likewise, Plaintiff’s
participation in the May 2010 staff meeting was one of his assigned duties, and his
comments at that meeting primarily concerned the impact of the City’s actions on
the regular operations of the fire department for which Plaintiff was admittedly
responsible. Thus, Plaintiff’s speech at the pension board and staff meeting clearly
does not qualify for First Amendment protection under Garcetti.
Neither are Plaintiff’s statements to other fire department employees during
April and May 2010 protected under this Court’s post-Garcetti precedent. These
statements relate to the City’s proposal that fire department employees accept
pension concessions or agree to a 6% pay cut, and its later proposal increasing the
pay cut to 30%. Many employees, including Garcia, Whitworth, and Cunningham,
went to Plaintiff for guidance on the concession/pay cut issue. They did so
because of Plaintiff’s experience and leadership role in the department and on the
pension board. Plaintiff’s statements in response were made in accordance with
his role as a liaison between the Fire Chief and employees down the chain of
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command. In addition, Plaintiff’s position as Assistant Fire Chief gave his
statements legitimacy. Further, Plaintiff emphasized in his statements that the
City’s demand for concessions impacted the day-to-day operations of the fire
department, which Plaintiff was responsible for overseeing.
That Plaintiff was not required to provide the requested guidance—in fact,
he had been instructed to keep his opinions about the collective bargaining
agreement issue to himself—is not determinative. See Abdur-Rahman v. Walker,
567 F.3d 1278, 1284 (11th Cir. 2009) (noting that an employee may speak
pursuant to his official duties even when his duties do not mandate the particular
speech at issue); Battle, 468 F.3d at 761 n. 6 (identifying the relevant issue as
whether a public employee was speaking pursuant to an official duty, not whether
that duty was part of the employee’s everyday job functions). We have rejected
“narrow, rigid descriptions of official duties urged upon us to support an inference
that public employees spoke as private citizens.” Abdur-Rahman, 567 F.3d at
1284. And we have held, in an analogous situation, that a high-ranking
employee’s broad administrative responsibilities rendered his speech unprotected.1
1
The district court put some emphasis on the source of the information underlying
Plaintiff’s speech: that is, the fact that Plaintiff learned about the details of the pension and
budget issues during the course of his job duties. Our decision is not based on the source of
Plaintiff’s knowledge about the subject matter of his speech. See Lane v. Franks, 134 S. Ct.
2369, 2378 (2014) (holding that a public employee’s testimony, compelled by subpoena, but
given outside of the course of his ordinary job duties, is protected by the First Amendment even
when it concerns information learned during the course of the employee’s job). Rather, it is
based on our conclusion that Plaintiff spoke in furtherance of his many self-described duties as
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See D’Angelo, 497 F.3d at 1210.
Finally, with regard to Plaintiff’s conversations with other community
members, we agree with the district court that the slim evidence he offered is
insufficient to make Plaintiff’s threshold First Amendment showing. Plaintiff’s
testimony as to these conversations was limited to a few sentences in which he
stated generally that he spoke to various friends and family members about the
budget and collective bargaining agreement issues. Plaintiff provided a list of
people that he allegedly discussed these issues with, and he indicated that these
conversations occurred on the phone, in his driveway, in restaurants, and at similar
places. None of the community members identified by Plaintiff testified at trial.
Contrary to Plaintiff’s argument, the district court did not make an improper
credibility determination as to his testimony concerning this speech. Rather, the
court held that Plaintiff’s testimony failed to establish that his conversations with
community members were protected under Garcetti. To apply Garcetti, we have
to consider the “content, form, and context” of the allegedly protected speech in
light of the plaintiff’s job duties. Abdur-Rahman, 567 F.3d at 1283 (quoting Vila
v. Padron, 484 F.3d 1334, 1340 (11th Cir. 2007)) (quotation marks omitted).
Plaintiff did not provide sufficient information to draw any conclusions about the
“context and form” of his community member speech, and he only described its
the Assistant Fire Chief.
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content in the most general terms. Moreover, there is no evidence to suggest that
the City was aware of this speech, which, from Plaintiff’s vague description,
appears to have been made merely in private discussions with family members and
friends.
B. Plaintiff’s speech is not protected under Pickering.
The district court’s alternative holding concerned the second stage of the
First Amendment analysis, known as the Pickering balancing test. See Pickering v.
Bd. of Educ. of Township High Sch. Dist. 205, Will Cty., 391 U.S. 563 (1968). The
Pickering test seeks to arrive at a balance between the employee’s interest in
commenting on matters of public concern and his employer’s interest in efficiently
providing public services. Leslie v. Hancock Cnty. Bd. of Educ., 720 F.3d 1338,
1346 (11th Cir. 2013) (citing Pickering, 391 U.S. at 568). The “manner, time, and
place” of the challenged speech and “the context” in which it arose are relevant to
the Pickering balance. Id. (quoting Rankin v. McPherson, 483 U.S. 378, 388
(1987)) (quotation marks omitted). Other pertinent considerations are whether the
statement:
impairs discipline by superiors or harmony among co-workers, has a
detrimental impact on close working relationships for which personal
loyalty and confidence are necessary, or impedes the performance of
the speaker’s duties or interferes with the regular operation of the
enterprise.
Id. (quoting Rankin, 483 U.S. at 388) (quotation marks omitted). Indeed, we have
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recognized a heightened need for order, loyalty, and harmony in a quasi-military
organization such as a police or fire department. See Anderson v. Burke Cnty.,
Ga., 239 F.3d 1216, 1222 (11th Cir. 2001).
Applying the above analysis, the district court held that the City’s interest in
avoiding dissension and discord in the fire department, particularly during the very
sensitive and volatile negotiations with its employees, outweighed Plaintiff’s
interest in expressing his opposition. Its holding is well-supported by the trial
transcript. Plaintiff conceded that the budget issues and collective bargaining
agreement negotiations were divisive topics among City employees. In particular,
the City required 100% agreement to either pension concessions or a pay cut;
employees disagreed on the more desirable option, depending on where they were
in their career; and tension arose between employees who wanted to accept
concessions and those who preferred to take a pay cut. Plaintiff, himself, admitted
that the tension over concessions escalated to violence among employees in the
police department. Under the circumstances, Chief Picarello had a right to insist
that Plaintiff, who was his Assistant Fire Chief and second-in-command, refrain
from commenting on the budget and collective bargaining agreement issues.
Plaintiff refused to do so.
Plaintiff’s argument that the City failed to show that Plaintiff’s speech had
any actual negative impact on the fire department is irrelevant. The government’s
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legitimate interest in avoiding disruption does not require proof of actual
disruption. Anderson, 239 F.3d at 1220-21. Reasonable possibility of adverse
harm is all that is required. Id. at 1221 (a public employer “need not wait for
disruption or disturbance to occur before acting”). The trial transcript contains a
wealth of evidence to support such a showing, including Plaintiff’s own testimony.
CONCLUSION
In summary, the district court correctly ruled that the speech by Plaintiff at
issue on this appeal was not protected by the First Amendment. Alternatively,
even if the speech were so protected, the City’s interest in restricting that speech
outweighed Plaintiff’s desire to express his opposition. For these reasons, the
district court correctly granted the City judgment as a matter of law on Plaintiff’s
claim that he was terminated from his position in retaliation for the exercise of his
First Amendment rights.
Therefore, we AFFIRM the judgment of the district court.
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