Kevin Buker v. Howard County

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2066
MARK GRUTZMACHER,
Plaintiff,
and
KEVIN PATRICK BUKER,
Plaintiff – Appellant,
v.
HOWARD COUNTY; CHIEF WILLIAM F. GODDARD, III; JOHN JEROME;
JOHN S. BUTLER,
Defendants – Appellees.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge. (1:13−cv−03046−MJG)
Argued: December 7, 2016 Decided: March 20, 2017
Before GREGORY, Chief Judge, and WYNN and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Wynn wrote the opinion, in which Chief Judge
Gregory and Judge Thacker joined.
ARGUED: Edward Scott Robson, ROBSON & ROBSON, PC, King of Prussia,
Pennsylvania, for Appellant. Cynthia G. Peltzman, HOWARD COUNTY OFFICE OF
LAW, Ellicott City, Maryland, for Appellees. ON BRIEF: David G.C. Arnold, LAW
OFFICE OF DAVID ARNOLD, King of Prussia, Pennsylvania, for Appellant. Gary W.
Kuc, County Solicitor, Faith R. Adelman, Senior Assistant County Solicitor, HOWARD
COUNTY OFFICE OF LAW, Ellicott City, Maryland, for Appellees.
2
WYNN, Circuit Judge:
Plaintiff Kevin Patrick Buker is a former Battalion Chief with the Howard County,
Maryland Department of Fire and Rescue Services (the “Department”). Defendants are
Howard County, Maryland; former Howard County Fire Chief William F. Goddard, III
(“Chief Goddard”); former Howard County Deputy Chief John Butler (“Deputy Chief
Butler”); 1 and Howard County Assistant Chief John Jerome (“Assistant Chief Jerome,”
and collectively with Howard County, Chief Goddard, and Deputy Chief Butler,
“Defendants”).
Plaintiff brought this matter in the District Court for the District of Maryland, at
Baltimore, alleging that Defendants retaliatorily fired him for exercising his First
Amendment free-speech rights and, second, that the Department’s social media policy,
which played a role in Plaintiff’s termination, was facially unconstitutional under the
First Amendment. This appeal arises from the district court’s orders granting summary
judgment in favor of Defendants on Plaintiff’s First Amendment retaliation claim and
dismissing as moot Plaintiff’s facial challenge to the social media policy. On review, we
affirm the judgment of the district court.
I.
A.
1
Butler was appointed as Fire Chief in January 2015, following Fire Chief
Goddard’s retirement.
3
The Department employed Plaintiff as a paramedic for the Howard County Fire
Department from 1997 through 2012. In 2012, Chief Goddard promoted Plaintiff to the
rank of battalion chief and assigned Plaintiff to the second battalion as its commander.
According to Chief Goddard, as a battalion chief, Plaintiff was responsible for
“manag[ing] the day-to-day operations of the field,” as well as “ensur[ing] . . . the
policies and procedures as written in the department are complied with.” J.A. 139.
As a paramilitary-type organization, the Department executes the enforcement of
its orders in a hierarchical manner that requires employees to strictly follow a chain-of-
command. At the top of the Department’s chain-of-command is the fire chief, followed
by deputy fire chiefs, assistant chiefs, battalion chiefs, and, lastly, first responders.
Although positioned at the lower end of the chain-of-command, Chief Goddard described
the rank of battalion chief as “the most critical leadership position in the organization,” as
battalion chiefs directly supervise first responders. J.A. 138.
In 2011, Chief Goddard, along with the Department’s public information officer,
began drafting a social media policy for the Department, partially in response to national
debate about the use of social media within fire and emergency services departments.
The Department’s decision to develop a social media policy also stemmed from an
incident involving a Howard County volunteer firefighter posting to Facebook a
photograph of a lynching, depicted by a noosed, brown beer bottle surrounded by white
beer cans with paper cones for hoods. In a comment accompanying the photograph, the
volunteer firefighter said that he “[w]ant[ed] to go fishing for mud sharks / there are way
to many here in Maryland. They are not good to eat though, I hear they taste like
4
decayed chicken.” J.A. 835; Dist. Ct. Dkt. 40-4, at 5; Dist. Ct. Dkt. 40-7, at 3; Dist. Ct.
Dkt. 40-24. Throughout the drafting process, the Department provided internal
stakeholders—including Plaintiff, as well as all of the other battalion chiefs—
opportunities to review and comment on the forthcoming policy.
On November 5, 2012, the Department issued General Order 100.21, entitled
“Social Media Guidelines,” which set forth the Department’s policy regarding the use of
social media by Department personnel. Under the Social Media Guidelines, the
Department prohibited personnel “from posting or publishing any statements,
endorsements, or other speech, information, images or personnel matters that could
reasonably be interpreted to represent or undermine the views or positions of the
Department, Howard County, or officials acting on behalf of the Department or County.”
J.A. 32. The Social Media Guidelines also barred Department employees “from posting
or publishing statements, opinions or information that might reasonably be interpreted as
discriminatory, harassing, defamatory, racially or ethnically derogatory, or sexually
violent when such statements, opinions or information, may place the Department in
disrepute or negatively impact the ability of the Department in carrying out its mission.”
J.A. 32. Additionally, the Social Media Guidelines prohibited Department personnel
from “post[ing] any information or images involving off-duty activities that may impugn
the reputation of the Department or any member of the Department.” J.A. 32.
Further, on December 6, 2012, the Department issued General Order 100.22,
entitled “Code of Conduct,” which was “aimed at ensuring members of the Department
maintain the highest level of integrity and ethical conduct both on and off duty.” J.A. 34.
5
In relevant part, the Code of Conduct prohibited Department personnel from
“intentionally engag[ing] in conduct, through actions or words, which are disrespectful
to, or that otherwise undermines the authority of, a supervisor or the chain of command”
and “publicly criticiz[ing] or ridicul[ing] the Department or Howard County government
or their policies.” J.A. 38–39. The Code of Conduct also required “[m]embers [to]
conduct themselves at all times, both on and off duty, in such a manner as to reflect
favorably on the Department.” J.A. 38. The Code of Conduct further prohibited
Department employees from engaging in “[c]onduct unbecoming” to the Department,
which it defined as “any conduct that reflects poorly on an individual member, the
Department, or County government, or that is detrimental to the public trust in the
Department or that impairs the operation and efficiency of the Department.” J.A. 38.
On January 20, 2013, Plaintiff was watching news coverage of a gun control
debate in his office and posted the following statement to his Facebook page while on-
duty2:
My aide had an outstanding idea . . lets all kill someone with a liberal . . . then
maybe we can get them outlawed too! Think of the satisfaction of beating a
liberal to death with another liberal . . . its almost poetic . . .
J.A. 82–83 (ellipses in original). Twenty minutes later, Mark Grutzmacher, a county
volunteer paramedic, replied to Plaintiff’s earlier post with the following comment:
2
We reproduce the Facebook posts and comments as they appear in the record and
without the benefit of editing.
6
But . . . . was it an “assult liberal”? Gotta pick a fat one, those are the “high
capacity” ones. Oh . . . pick a black one, those are more “scary”. Sorry had to
perfect on a cool idea!
J.A. 84 (ellipses in original). Six minutes later, Plaintiff “liked” Grutzmacher’s comment
and replied, “Lmfao! Too cool Mark Grutzmacher!” J.A. 85.
Two Department employees subsequently forwarded Plaintiff’s and
Grutzmacher’s Facebook posts to another battalion chief within the Department. On
January 22, 2013, that battalion chief sent a screenshot of Plaintiff’s initial Facebook post
to Assistant Chief Jerome with a text message stating, “Chief, not sure this is something
that should be displayed from one of our battalion chiefs.” J.A. 82. Assistant Chief
Jerome then contacted his direct supervisor, Deputy Chief Butler, along with another
assistant chief, regarding Plaintiff’s Facebook posts. Later that day, the three chiefs met
to discuss whether Plaintiff’s posts violated the Social Media Guidelines or Code of
Conduct and, if so, what corrective measures the Department would take. Following
their meeting, Assistant Chief Jerome emailed Plaintiff, directing him to review his recent
Facebook posts and to remove anything inconsistent with the Department’s social media
policy. Though Plaintiff maintained that he was in compliance with the social media
policy, Plaintiff removed the January 20 posts.
On January 23—a few hours after Plaintiff informed Assistant Chief Jerome that
he had removed the posts—Plaintiff posted the following to his Facebook “wall”:
To prevent future butthurt and comply with a directive from my supervisor, a
recent post (meant entirley in jest) has been deleted. So has the complaining party.
If I offend you, feel free to delete me. Or converse with me. I’m not scared or
ashamed of my opinions or political leaning, or religion. I’m happy to discuss any
7
of them with you. If you’re not man enough to do so, let me know, so I can delete
you. That is all. Semper Fi! Carry On.
J.A. 96. One of Plaintiff’s Facebook friends then replied, “As long as it isn’t about the
[Department], shouldn’t you be able to express your opinions?” J.A. 96. Plaintiff
responded:
Unfortunately, not in the current political climate. Howard County, Maryland, and
the Federal Government are all Liberal Democrat held at this point in time. Free
speech only applies to the liberals, and then only if it is in line with the liberal
socialist agenda. County Governement recently published a Social media policy,
which the Department then published it’s own. It is suitably vague enough that
any post is likely to result in disciplinary action, up to and including termination of
employment, to include this one. All it took was one liberal to complain . . . sad
day. To lose the First Ammendment rights I fought to ensure, unlike the WIDE
majority of the Government I serve.
J.A. 96 (ellipses in original). Another of Plaintiff’s Facebook friends then commented,
“Oh, your gonna get in trouble for saying that too.” J.A. 96. “Probably . . .,” Plaintiff
replied. J.A. 96.
The following day, January 24, a captain in the Department emailed Chief
Goddard a screenshot of Plaintiff’s January 23 Facebook posts. The captain also emailed
Deputy Chief Butler and an assistant chief a “summary of the Buker issue,” in which he
noted the “racial overtones” of Grutzmacher’s comment on Plaintiff’s January 20
Facebook post. J.A. 101. The captain stated that by replying to the comment, Plaintiff
“endorsed” Grutzmacher’s racially charged statement. J.A. 101. The captain also
characterized Plaintiff’s January 23 posts as “insubordinate toward [management].” J.A.
101. The captain suggested treating the incidents “like any other investigation” and
determining any disciplinary action “after the conclusion of the investigation.” J.A. 101.
8
The next day, the Department moved Plaintiff out of field operations to an administrative
assignment pending the results of an internal investigation.
Approximately three weeks later, on February 17, 2013, Mike Donnelly, a
member of a Department-affiliated volunteer company, posted to his own Facebook page
a picture of an elderly woman with her middle finger raised. Overlaid across the picture
was the following caption: “THIS PAGE, YEAH THE ONE YOU’RE LOOKING AT
IT’S MINE[.] I’LL POST WHATEVER THE FUCK I WANT[.]” J.A. 100. Above the
picture, Donnelly wrote, “for you Chief.” J.A. 100. Plaintiff, who was one of Donnelly’s
Facebook friends, “liked” the photograph.
Chief Goddard served Plaintiff with charges of dismissal on February 25. The
charges referenced Plaintiff’s: (1) January 20 and January 23 Facebook posts; (2) “like”
of and reply to Grutzmacher’s January 20 comment; (3) replies to comments on
Plaintiff’s January 23 post; and (4) “like” of Donnelly’s February 17 post. 3 The charges
asserted that these posts violated the Department’s Code of Conduct and Social Media
3
We observe that the act of “liking” a Facebook post makes the post attributable
to the “liker,” even if he or she did not author the original post. See Bland v. Roberts,
730 F.3d 368, 386 (4th Cir. 2013), as amended (Sept. 23, 2013) (“[C]licking on the ‘like’
button literally causes to be published the statement that the User ‘likes’ something,
which is itself a substantive statement. . . . That a user may use a single mouse click to
produce that message . . . instead of typing the same message with several individual key
strokes is of no constitutional significance.”).
Accordingly, for ease of reference, we refer to Plaintiff’s various Facebook posts,
comment replies, and “likes,” collectively, as Plaintiff’s “Facebook activity” or “speech.”
9
Guidelines. In particular, the charging document asserted, among other things, that
Plaintiff’s Facebook activity improperly:
• “[A]dopted” and “approv[ed]” Grutzmacher’s comment, which “had racial
overtones and was insensitive and derogatory in nature”;
• Reflected a “[f]ailure to grasp the impact and implications of [the] comments” on
Plaintiff’s “leadership position within the Department as a Battalion Chief,” in
which Plaintiff was “responsible for enforcing Department policies and taking
appropriate action for violations of those policies by the people [he] supervise[d]”;
• Demonstrated “repeated insolence and insubordination” by replacing the January
20 post “with another posting tirade mocking the Chain-of-Command, the
Department, and the County”; and
• “[I]nterfered with Department operations” and caused “disruption [in] the
Department’s Chain-of-Command and authority.”
J.A. 105.
Chief Goddard provided Plaintiff with an opportunity to rebut the specific charges
at a pre-termination meeting held on March 8. Following that meeting, on March 14,
2013, Chief Goddard terminated Plaintiff’s employment with the Department.
B.
On October 12, 2013, Plaintiff brought an action under 42 U.S.C. § 1983 in
federal district court seeking reinstatement and damages. Plaintiff alleged that his
Facebook posts were a substantial motivation for his termination and that, by terminating
him, the Department impermissibly retaliated against Plaintiff for exercising his First
Amendment rights. Plaintiff also alleged that the Department’s Social Media Guidelines
and Code of Conduct, as drafted and applied to Plaintiff, violated the First Amendment
by impermissibly restricting Department employees’ ability to speak on matters of public
10
concern. The district court later construed the second of Plaintiff’s claims as a facial
challenge to the Department’s Social Media Guidelines and Code of Conduct.
Following discovery, Defendants moved for summary judgment, arguing that
Plaintiff’s Facebook activity did not involve matters of public concern and that Plaintiff’s
interest in speaking did not outweigh the Department’s interest in minimizing disruption.
Defendants later filed a second motion for summary judgment as to Plaintiff’s facial-
challenge claims, arguing that the Department’s policies were not unconstitutionally
overbroad or vague and did not constitute prior restraints.
The district court granted Defendants’ first summary judgment motion on March
30, 2015. Buker v. Howard County., Nos. MJG–13–3046, MJG–13–3747, 2015 WL
3456750 (D. Md. May 27, 2015). In doing so, the district court concluded that Plaintiff’s
January 20 Facebook posts and “like” were unprotected speech because they were
“capable of impeding the [Fire Department]’s ability to perform its duties efficiently.”
Id. at *13 (alteration in original) (internal quotation marks omitted) (quoting Duke v.
Hamil, 997 F. Supp. 2d 1291, 1302 (N.D. Ga. 2014)). The district court further
concluded that Plaintiff’s January 23 posts and February 17 “like” similarly did not
amount to protected speech because Plaintiff failed to show that he was speaking as a
citizen on a matter of public concern. Id. at *13–14. The district court’s memorandum
decision and order did not, however, address Defendants’ second motion for summary
judgment, leaving unresolved Plaintiff’s facial challenge.
On June 22, 2015, the Department replaced its Social Media Guidelines and Code
of Conduct policies with revised versions. The revised version of the Social Media
11
Guidelines eliminated many of the earlier version’s prohibitions on Department
personnel’s private use of social media. And the revised Code of Conduct did not include
any of the provisions in the previous version that Plaintiff had challenged. Highlighting
these changes, Defendants moved to dismiss Plaintiff’s facial challenge as moot, arguing
that the Department’s revised policies did not contain the provisions Plaintiff challenged
as overbroad, void for vagueness, or prior restraints. The district court thus denied
Defendants’ earlier motion for summary judgment as moot and granted Defendants’
motion to dismiss on August 12, 2015.
Plaintiff timely appealed the district court’s (1) award of summary judgment in
favor of Defendants on Plaintiff’s First Amendment retaliation claim and (2) dismissal on
mootness grounds of Plaintiff’s facial challenge to the Social Media Guidelines and Code
of Conduct.
II.
A.
On appeal, Plaintiff first argues that the district court erred in granting summary
judgment in favor of Defendants on his First Amendment retaliation claim. Summary
judgment is appropriate “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). “We review a district court’s decision to grant summary judgment de novo,
applying the same legal standards as the district court and viewing all facts and
reasonable inferences therefrom in the light most favorable to the nonmoving party.”
12
Smith v. Gilchrist, 749 F.3d 302, 307 (4th Cir. 2014) (quoting T-Mobile Ne. LLC v. City
Council of Newport News, 674 F.3d 380, 384–85 (4th Cir. 2012)).
From the outset, we point out that “[t]he First Amendment ‘was fashioned to
assure unfettered interchange of ideas for the bringing about of political and social
changes desired by the people.’” Connick v. Myers, 461 U.S. 138, 145 (1983) (quoting
Roth v. United States, 354 U.S. 476, 484 (1957)). “Protection of the public interest in
having debate on matters of public importance is at the heart of the First Amendment.”
McVey v. Stacy, 157 F.3d 271, 277 (4th Cir. 1998) (citing Pickering v. Bd. of Educ., 391
U.S. 563, 573 (1968)).
To resolve Plaintiff’s appeal, we start by considering the First Amendment rights
of public employees. Public employees do not “relinquish First Amendment rights to
comment on matters of public interest by virtue of government employment.” Connick,
461 U.S. at 140. To the contrary, the Supreme Court has long recognized
that public employees are often the members of the community who are likely to
have informed opinions as to the operations of their public employers, operations
which are of substantial concern to the public. Were they not able to speak on
these matters, the community would be deprived of informed opinions on
important public issues.
City of San Diego v. Roe, 543 U.S. 77, 82 (2004) (per curiam) (citing Pickering, 391 U.S.
at 572). To that end, the Supreme Court has repeatedly “underscored the ‘considerable
value’ of ‘encouraging, rather than inhibiting, speech by public employees. For
government employees are often in the best position to know what ails the agencies for
which they work.’” Hunter v. Town of Mocksville, 789 F.3d 389, 396 (4th Cir. 2015)
(quoting Lane v. Franks, 134 S. Ct. 2369, 2377 (2014)). As such, we do not take lightly
13
“[o]ur responsibility . . . to ensure that citizens are not deprived of fundamental rights by
virtue of working for the government.” Connick, 461 U.S. at 147.
“That being said, precedent makes clear that courts must also consider ‘the
government’s countervailing interest in controlling the operation of its workplaces.’”
Hunter, 789 F.3d at 397 (quoting Lane, 134 S. Ct. at 2377). Just as there is a “public
interest in having free and unhindered debate on matters of public importance,”
Pickering, 391 U.S. at 573, “[t]he efficient functioning of government offices is a
paramount public interest,” Robinson v. Balog, 160 F.3d 183, 189 (4th Cir. 1998).
Therefore, a public employee “by necessity must accept certain limitations on his or her
freedom.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). In particular, under the
balancing test developed by the Supreme Court in Pickering and Connick, “the First
Amendment does not protect public employees when their speech interests are
outweighed by the government’s interest in providing efficient and effective services to
the public.” Lawson v. Union Cty. Clerk of Court, 828 F.3d 239, 247 (4th Cir. 2016).
Regarding Plaintiff’s retaliation claim, “a public employer contravenes a public
employee’s First Amendment rights when it discharges . . . ‘[the] employee . . . based on
the exercise of’ that employee’s free speech rights.” Ridpath v. Bd. of Governors
Marshall Univ., 447 F.3d 292, 316 (4th Cir. 2006) (alteration in original) (quoting Suarez
Corp. Indus. v. McGraw, 202 F.3d 676, 686 (4th Cir. 2000)). To state a claim under the
First Amendment for retaliatory discharge, a plaintiff must satisfy the three-prong test set
forth in McVey v. Stacy, 157 F.3d 271 (4th Cir. 1998). In particular, the plaintiff must
show: (1) that he was a “public employee . . . speaking as a citizen upon a matter of
14
public concern [rather than] as an employee about a matter of personal interest;” (2) that
his “interest in speaking upon the matter of public concern outweighed the government’s
interest in providing effective and efficient services to the public;” and (3) that his
“speech was a substantial factor in the employer’s termination decision.” 157 F.3d at
277–78.
The district court found that Plaintiff’s January 20 speech failed on the second
prong of the McVey test, and that Plaintiff’s January 23 and February 17 speech failed on
the first McVey prong. Buker, 2015 WL 3456750, at *9–14. Plaintiff urges us to reverse
the district court’s grant of summary judgment to Defendants and, in doing so, makes two
arguments. First, Plaintiff argues that the district court erred in granting summary
judgment when there remained a factual dispute regarding whether Plaintiff could meet
his burden under the McVey test’s second prong. Specifically, Plaintiff maintains that his
January 20 speech did not disrupt the Department or cause a reasonable apprehension of
disruption, such that the Department’s interest in maintaining an efficient workplace
outweighed Plaintiff’s interest in speaking. Second, Plaintiff argues that the district court
erred in finding that his January 23 and February 17 posts and “like” were not on a matter
of public concern and, therefore, failed McVey’s first prong. For the reasons below, we
hold that the district court properly granted summary judgment to Defendants.
1.
We first address whether Plaintiff’s Facebook posts and “likes” addressed matters
of public concern. In determining whether speech addresses matters of public concern,
“we examine the content, context, and form of the speech at issue in light of the entire
15
record.” Urofsky v. Gilmore, 216 F.3d 401, 406 (4th Cir. 2000) (en banc). “Speech
involves a matter of public concern when it involves an issue of social, political, or other
interest to a community.” Id. This “public-concern inquiry centers on whether ‘the
public or the community is likely to be truly concerned with or interested in the particular
expression.’” Kirby v. City of Elizabeth City, 388 F.3d 440, 446 (4th Cir. 2004) (quoting
Arvinger v. Mayor of Baltimore, 862 F.2d 75, 79 (4th Cir. 1988)); see also Goldstein v.
Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 352–53 (4th Cir. 2000) (“This is a
subtle, qualitative inquiry; we use the content, form, and context as guideposts in the
exercise of common sense, asking throughout: would a member of the community be
truly concerned with the employee’s speech?”).
Conversely, “[i]n the absence of unusual circumstances, a public employee’s
speech ‘upon matters only of personal interest’ is not afforded constitutional protection.”
Seemuller v. Fairfax Cty. Sch. Bd., 878 F.2d 1578, 1581 (4th Cir. 1989) (quoting
Connick, 461 U.S. at 147); see also Jurgensen v. Fairfax County, 745 F.2d 868, 879 (4th
Cir. 1984) (“If the speech relates primarily to a matter of ‘limited public interest’ and . . .
center[s] instead on matters primarily, if not exclusively ‘of personal interest’ to the
employee . . . that fact must be weighed in determining whether a matter of true public
concern is involved . . . .”). To that end, “[t]he Supreme Court has warned us to guard
against ‘attempt[s] to constitutionalize the employee grievance.’” Brooks v. Arthur, 685
F.3d 367, 373 (4th Cir. 2012) (second alteration in original) (quoting Connick, 461 U.S.
at 154). Accordingly, “[p]ersonal grievances[ and] complaints about conditions of
employment . . . do not constitute speech about matters of public concern.” Campbell v.
16
Galloway, 483 F.3d 258, 267 (4th Cir. 2007) (internal quotation marks omitted) (quoting
Stroman v. Colleton Cty. Sch. Dist., 981 F.2d 152, 156 (4th Cir. 1992)). Likewise, we
must also “ensure that matters of internal policy, including mere allegations of favoritism,
employment rumors, and other complaints of interpersonal discord, are not treated as
matters of public policy.” Goldstein, 218 F.3d at 352.
Set against this backdrop, at least some of Plaintiff’s Facebook activity referenced
in the Department’s charging document touched on issues of public concern. In
particular, Plaintiff’s and Grutzmacher’s January 20, 2013, discussion about “liberal[s]”
and “assault liberal[s]” was, according to an expert report submitted by Plaintiff, a
commentary on gun control legislation using “a lexicon that is extremely common in
contemporary American gun culture.” J.A. 566–71. The report maintains that Plaintiff’s
and Grutzmacher’s exchange reflects a “well-known meta-narrative” under which
“‘liberal’ . . . is a collectivist ideologue, a statist, who believes in the absolute power of
government even at the expense of individual autonomy and rights, including an
individual’s right to own, carry and use firearms.” J.A. 567–68. Courts have long
recognized that “[t]he debate over the propriety of gun control legislation is . . . a matter
of public concern.” Thomas v. Whalen, 51 F.3d 1285, 1290 (6th Cir. 1995).
Consequently, the “liberal” and “assault liberal” post and comment implicated a matter of
public concern.
Likewise, Plaintiff’s January 23, 2013, post describing the Department’s Social
Media Guidelines and expressing concern that those guidelines infringed on Plaintiff’s
First Amendment rights also addressed a matter of public concern. As explained above,
17
the public employee speech doctrine recognizes the unique role government employees—
individuals who “are often in the best position to know what ails the agencies for which
they work”—play in keeping the electorate informed about the operations of public
employers. See Liverman v. City of Petersburg, 844 F.3d 400, 408 (4th Cir. 2016)
(internal quotation marks omitted) (quoting Waters v. Churchill, 511 U.S. 661, 674
(1994) (plurality opinion)). To that end, the interest advanced by the public employee
speech doctrine “is as much the public’s interest in receiving informed opinion as it is the
employee’s own right to disseminate it.” Roe, 543 U.S. at 82 (emphasis added); see also
Garcetti, 547 U.S. at 419 (“The Court has acknowledged the importance of promoting the
public’s interest in receiving the well-informed views of government employees engaging
in civic discussion.”); United States v. Nat’l Treasury Emps. Union, 513 U.S. 454, 470
(1995) (“The large-scale disincentive to Government employees’ expression also imposes
a significant burden on the public’s right to read and hear what the employees would
otherwise have written and said.”). Because the public has an interest in receiving the
“informed” opinions of public employees, it necessarily also has an interest in
information about policies that circumscribe public employees’ speech and public
employees’ opinions of such policies.
However, we also acknowledge that some of the Facebook activity prompting
Plaintiff’s termination did not implicate matters of public concern. For instance,
Plaintiff’s “like” of the image depicting an elderly woman raising her middle finger and
entitled “for you Chief”—on the heels of the Department’s investigation into Plaintiff’s
18
January 20 and 23 Facebook activity—“amounted to no more than an employee
grievance not protected by the First Amendment.” Stroman, 981 F.2d at 157.
When “a single expression of speech” encompasses both matters of public concern
and matters of purely personal interest, “the proper approach is to consider [the
speech] . . . in its entirety.” Id. Whether a series of related posts and “likes” over a
several-week period to a dynamic social networking platform—like the posts and “likes”
that prompted Plaintiff’s termination—constitute “a single expression of speech” is an
open question. Rather than resolve that unsettled question—and because at least some of
Plaintiff’s speech addressed matters of public concern—we will “weigh whatever public
interest commentary may be contained in [Plaintiff’s Facebook activity] against the
[Department’s] dual interest as a provider of public service and employer of persons
hired to provide that service.” Id. at 158 (citing Pickering, 391 U.S. at 568). We note
that this approach accords with the Department’s decision to terminate Plaintiff, which
was based on the “public statements [Plaintiff] made over a number of days (not simply
one incident—one day)” and “the totality of the circumstances [of] his violations.” J.A.
119, 242.
2.
Having concluded that at least some of the Facebook activity prompting Plaintiff’s
termination implicated matters of public concern, we now must determine “whether
[Plaintiff’s] interest in speaking upon the matter[s] of public concern outweighed the
[Department’s] interest in providing effective and efficient services to the public.”
19
McVey, 157 F.3d at 277. 4 “Whether [an] employee’s interest in speaking outweighs the
government’s interest is a question of law for the court.” Smith, 749 F.3d at 309. In
balancing these interests, we must “consider the context in which the speech was made,
including the employee’s role and the extent to which the speech impairs the efficiency of
the workplace.” Id. (citing Rankin v. McPherson, 483 U.S. 378, 388 (1987)).
Factors relevant to this inquiry include whether a public employee’s speech
(1) impaired the maintenance of discipline by supervisors; (2) impaired harmony
among coworkers; (3) damaged close personal relationships; (4) impeded the
performance of the public employee’s duties; (5) interfered with the operation of
the institution; (6) undermined the mission of the institution; (7) was
communicated to the public or to coworkers in private; (8) conflicted with the
responsibilities of the employee within the institution; and (9) abused the authority
and public accountability that the employee’s role entailed.
Ridpath, 447 F.3d at 317 (citing McVey, 157 F.3d at 278).
To demonstrate that an employee’s speech impaired efficiency, a government
employer need not “prove that the employee’s speech actually disrupted efficiency, but
only that an adverse effect was ‘reasonably to be apprehended.’” Maciariello v. Sumner,
973 F.2d 295, 300 (4th Cir. 1992) (quoting Jurgensen, 745 F.2d at 879); see also Durham
v. Jones, 737 F.3d 291, 302 (4th Cir. 2013) (“While [it] is correct that ‘concrete evidence’
of an actual disruption is not required, there must still be a reasonable apprehension of
such a disruption.”). Additionally, this Court has previously recognized that “[a] social
4
Although the district court concluded that Plaintiff’s January 23 and February 17
Facebook activity did not address matters of public concern, Buker, 2015 WL 3456750,
at *13–14, “[o]ur review is not limited to the grounds the district court relied upon, and
we may affirm ‘on any basis fairly supported by the record,’” Lawson, 828 F.3d at 247
(quoting Eisenberg v. Wachovia Bank, N.A., 301 F.3d 220, 222 (4th Cir. 2002)).
20
media platform amplifies the distribution of the speaker’s message—which favors the
employee’s free speech interests—but also increases the potential, in some cases
exponentially, for departmental disruption, thereby favoring the employer’s interest in
efficiency.” Liverman, 844 F.3d at 407.
For several reasons, we conclude that the Department’s interest in efficiency and
preventing disruption outweighed Plaintiff’s interest in speaking in the manner he did
regarding gun control and the Department’s social media policy. First, Plaintiff’s
Facebook activity interfered with and impaired Department operations and discipline as
well as working relationships within the Department. “[F]ire companies have a strong
interest in the promotion of camaraderie and efficiency” as well as “internal harmony
[and] trust,” and therefore we accord “substantial weight” to a fire department’s interest
in limiting dissension and discord. Goldstein, 218 F.3d at 355; see also Janusaitis v.
Middlebury Volunteer Fire Dep’t, 607 F.2d 17, 26 (2d Cir. 1979) (“When lives may be at
stake in a fire, an esprit de corps is essential to the success of the joint endeavor. Carping
criticism and abrasive conduct have no place in a small organization that depends upon
common loyalty—‘harmony among coworkers.’” (quoting Pickering, 391 U.S. at 570)).
Here, Plaintiff’s Facebook activity led to “dissension in the [D]epartment” and
resulted in “[n]umerous” conversations between at least one battalion chief and lower-
level employees in which the battalion chief “had to[,] . . . as a supervisor[,] justify[] that
it’s okay for anybody to say or do anything against the policy.” J.A. 550. Additionally,
at least one lieutenant perceived Grutzmacher’s comment regarding “picking a black
one,” which Plaintiff “liked,” as “referr[ing] to a black person.” J.A. 337. Three
21
African-American employees within the Department approached the president of the
Phoenix Sentinels—the Howard County affiliate of the International Association of Black
Professional Firefighters, a constituent group representing African-American and other
minority firefighters—about the posts, with one member stating, “I don’t want to work
for [Plaintiff] anymore. I don’t trust him.” 5 J.A. 240. Accordingly, we accord
“substantial weight” to Defendants’ interest in preventing Plaintiff from causing further
dissension and disharmony.
Second, Plaintiff’s Facebook activity significantly conflicted with Plaintiff’s
responsibilities as a battalion chief. Courts have long recognized that “[t]he expressive
activities of a highly placed supervisory . . . employee will be more disruptive to the
operation of the workplace than similar activity by a low level employee with little
authority or discretion.” McEvoy v. Spencer, 124 F.3d 92, 103 (2d Cir. 1997) (citing
authorities); see also Brown v. Dep’t of Transp., 735 F.2d 543, 547 (Fed. Cir. 1984)
(“[Plaintiff’s] position as a supervisor . . . weighs heavily on the agency’s side.”). As a
leader within the Department, Plaintiff was responsible for acting as an impartial
decisionmaker and “enforcing Departmental policies and taking appropriate action for
violations of those policies.” J.A. 105. The record demonstrates that Plaintiff’s actions
5
Although Plaintiff maintains that this testimony is inadmissible hearsay and that
the district court should not have considered it, the district court did not rely on the
statement for the truth of the matter asserted, but relied on it to illustrate the disruptive
effect of Plaintiff’s speech. See United States v. Pratt, 239 F.3d 640, 644 (4th Cir. 2001)
(finding that an out-of-court statement not intended to prove the truth of the matter
asserted is not hearsay and, thus, is not excluded by the hearsay rule). Thus, the district
court did not err in considering this testimony.
22
led to concerns regarding Plaintiff’s fitness as a supervisor and role model, and concerns
that Plaintiff’s subordinates would not take him seriously if Plaintiff tried to discipline
them in the future. By flouting Department policies he was expected to enforce, Plaintiff
“violated the trust [his inferiors] have in him to be in his administrative role as a battalion
chief, because people count on him to be fair.” J.A. 226–27. Accordingly, Plaintiff’s
managerial position also weighs in the Department’s favor.
Third, Plaintiff’s speech frustrated the Department’s public safety mission and
threatened “community trust” in the Department, which is “vitally important” to its
function. J.A. 284–85. “[T]he more the employee’s job requires . . . public contact, the
greater the state’s interest in firing her for expression that offends her employer.”
McEvoy, 124 F.3d at 103 (alteration in original) (internal quotation marks omitted)
(quoting Craig D. Singer, Comment, Conduct and Belief: Public Employees’ First
Amendment Rights to Free Expression and Political Affiliation, 59 U. Chi. L. Rev. 897,
901 (1992)). “[F]irefighters . . . are quintessentially public servants. As such, part of
their job is to safeguard the public’s opinion of them, particularly with regard to a
community’s view of the respect that . . . firefighters accord the members of that
community.” Locurto v. Giuliani, 447 F.3d 159, 178–79 (2d Cir. 2006).
Here, Plaintiff’s January 20 post, made while he was on-duty and in his office,
“advocat[ed] violence to certain classes of people” and “advocated using violence to
[e]ffect a political agenda.” J.A. 183, 646. Additionally, the Department reasonably was
concerned that Plaintiff’s Facebook activity—particularly his “like” of Grutzmacher’s
comment regarding “black one[s]”—could be interpreted as supporting “racism” or
23
“bias,” J.A. 283, and thereby “interfere with the public trust of [Plaintiff] being able to
make fair decisions for everybody,” J.A. 231; see also Locurto, 447 F.3d at 182–83
(“[E]ffective police and fire service presupposes respect for the members of [African-
American and other minority] communities, and the defendants were permitted to
account for this fact in disciplining the plaintiffs.”). The potential for Plaintiff’s
statements to diminish the Department’s standing with the public further weighs in favor
of the Department.
Fourth, Plaintiff’s speech—particularly his “like” of the image depicting a woman
raising her middle finger—“expressly disrespect[ed] [his] superiors.” LeFande v. District
of Columbia, 841 F.3d 485, 495 (D.C. Cir. 2016). A public employee’s interest in
speaking on matters of public concern “does not require that [a public] employer[]
tolerate associated behavior that [it] reasonably believed was disruptive and
insubordinate.” Dwyer v. Smith, 867 F.2d 184, 194 (4th Cir. 1989); see also Connick,
461 U.S. at 154 (“The limited First Amendment interest involved here does not require
that Connick tolerate action which he reasonably believed would disrupt the office,
undermine his authority, and destroy close working relationships.”). Here, Plaintiff’s
“continued unrestrained conduct” after already being reprimanded “‘smack[ed] of
insubordination.’” See Graziosi v. City of Greenville, 775 F.3d 731, 740 (5th Cir. 2015)
(quoting Nixon v. City of Houston, 511 F.3d 494, 499 (5th Cir. 2007)). Employees within
the Department viewed Plaintiff’s “like” of Donnelly’s Facebook picture of an older
woman with her middle finger raised as a “sparring match between the battalion chief and
an assistant chief [that publicly] escalated to the level of telling the fire chief to fuck off.”
24
J.A. 297–98. Therefore, the disrespectful and insubordinate tone of Plaintiff’s relevant
Facebook activity also weighs in the Department’s favor.
Lastly, we observe that the record is rife with observations of how Plaintiff’s
Facebook activity, subsequent to Assistant Chief Jerome’s request that Plaintiff remove
any offending posts, disregarded and upset the chain of command upon which the
Department relies. Fire departments operate as “paramilitary” organizations in which
“discipline is demanded, and freedom must be correspondingly denied.” Maciariello,
973 F.2d at 300. Accordingly, we afford fire departments “greater latitude . . . in dealing
with dissension in their ranks.” Id. Although the Department’s status as a paramilitary
organization is not dispositive of the Pickering analysis, see Liverman, 844 F.3d at 408, it
does further tip the scale in the Department’s favor.
By contrast, though we recognize that at least some of Plaintiff’s speech addressed
matters of public concern—gun control and the Department’s Social Media Guidelines—
the public’s interest in Plaintiff speaking on those matters of public concern does not
outweigh the significant governmental interests set forth above. In particular, we have
recognized that a public safety official’s interest in speaking on matters of public concern
is sufficient to outweigh the compelling government interests set forth above when, for
example, the official’s speech is “grounded . . . in specialized knowledge [or] expresse[s]
a general ‘concern about the inability of the [Department] to carry out its vital public
25
mission effectively.’” 6 Liverman, 844 F.3d at 410 (third alteration in original) (quoting
Cromer v. Brown, 88 F.3d 1315, 1325–26 (4th Cir. 1996)). For instance, in Liverman,
we found statements by veteran police officers raising “[s]erious concerns regarding
officer training and supervision” were sufficient to overcome the government’s interest in
preventing workplace disruption. Id. at 411; see also Durham, 737 F.3d at 302 (“Serious,
to say nothing of corrupt, law enforcement misconduct is a substantial concern that must
be met with a similarly substantial disruption in the calibration of the controlling
balancing test.”); Goldstein, 218 F.3d at 355 (“[T]he substance of the public concern
included allegations that some emergency personnel lacked required training and
certifications; that the leadership of the company was overlooking violations of safety
regulations; and that the conduct of crewmembers was jeopardizing the safety of the crew
and of the public. These allegations were a matter of the highest public concern, and as
such, they were entitled to the highest level of First Amendment protection.” (footnote
omitted)). Plaintiff’s Facebook activity is not of the same ilk as the speech at issue in
Liverman, Durham, and Goldstein, which this Court found sufficient to outweigh the
types of significant governmental interests at issue here.
In sum, we conclude the Department’s interest in workplace efficiency and
preventing disruption outweighed the public interest commentary contained in Plaintiff’s
6
By identifying speech grounded in a public employee’s specialized knowledge or
raising questions about public safety as examples of public employee speech warranting
the highest level of First Amendment protection, we do not suggest that those are the only
two categories of public employee speech warranting such protection.
26
Facebook activity. In reaching this conclusion, we emphasize that this balancing test is a
“particularized” inquiry. Goldstein, 218 F.3d at 356. Therefore, although we resolve the
balancing test in favor of the Department, we expressly caution that a fire department’s
interest in maintaining efficiency will not always outweigh the interests of an employee
in speaking on matters of public concern. See id.
Because the Department’s interest in managing its internal affairs outweighs the
public interest in Plaintiff’s speech, we need not reach the third prong of the McVey test.
As such, we conclude that the district court properly granted summary judgment in favor
of Defendants on Plaintiff’s First Amendment retaliation claim.
B.
Plaintiff also contends that the district court improperly dismissed his facial
challenge to the Department’s Social Media Guidelines and Code of Conduct as moot.
When a plaintiff challenges a government policy “for vagueness or overbreadth, the
Supreme Court has concluded that [he] ha[s] standing to assert the rights of third parties
whose protected speech may have been impermissibly curtailed by the challenged
prohibition, even though as applied to the plaintiff[], the [policy] only curtailed
unprotected expression.” Brandywine, Inc. v. City of Richmond, 359 F.3d 830, 835 (6th
Cir. 2004) (citing Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 59 n.17 (1976)).
Because we find the district court properly granted Defendants’ motion for summary
judgment against Plaintiff, we decline to review Plaintiff’s as-applied facial challenge
and review only the district court’s determination regarding Plaintiff’s third-party facial
challenge.
27
“We review the district court’s mootness determination de novo.” S.C. Coastal
Conservation League v. U.S. Army Corps of Eng’rs, 789 F.3d 475, 482 (4th Cir. 2015).
A claim becomes moot “when the issues presented are no longer ‘live’ or the parties lack
a legally cognizable interest in the outcome.” County of Los Angeles v. Davis, 440 U.S.
625, 631 (1979) (internal quotation marks omitted) (quoting Powell v. McCormack, 395
U.S. 486, 496 (1969)).
On appeal, Defendants contend that the district court’s mootness finding was
proper because the Department has repealed the previous Social Media Guidelines and
Code of Conduct in operation at the time of Plaintiff’s termination; the revised policies
did not include any of the provisions Plaintiff challenged in the prior iterations of the
policies; and the Department “did not intend to readopt or enforce the challenged prior
versions of either policy.” Appellees’ Br. at 17. Conversely, Plaintiff argues that the
Department’s subsequent actions have not mooted his facial challenge, as the Department
is free to “re-enact the unconstitutional provisions of the old policies.” Appellant’s Br. at
36. We reject Plaintiff’s contention.
“It is well established that a defendant’s ‘voluntary cessation of a challenged
practice’ moots an action only if ‘subsequent events made it absolutely clear that the
allegedly wrongful behavior could not reasonably be expected to recur.’” Wall v. Wade,
741 F.3d 492, 497 (4th Cir. 2014) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs., Inc., 528 U.S. 167, 189 (2000)). Here, in addition to adopting a new Social Media
Policy and revised Code of Conduct, current Fire Chief Butler submitted a sworn
affidavit that, “[a]s head of the Fire Department, [he] fully intend[s] to operate under the
28
newly issued [policies] and do[es] not intend to re-issue the original versions.” J.A. 924.
Additionally, Defendants’ counsel declared at oral argument that the Department has no
intent to reenact the offending policies. And from the record, we discern “no hint” that
the Department has any intention of reinstituting the prior policies. See Troiano v.
Supervisor of Elections, 382 F.3d 1276, 1284–85 (11th Cir. 2004). Based on these
formal assurances and the absence of any evidence to the contrary, Defendants have met
their “heavy burden of persuad[ing]” this Court that they will not revert to the challenged
policies. Wall, 741 F.3d at 497 (alteration in original) (internal quotation marks omitted)
(quoting Laidlaw, 528 U.S. at 189); see Winsness v. Yocom, 433 F.3d 727, 736 (10th Cir.
2006) (finding that public officials’ alteration of challenged policy, coupled with sworn
affirmation that they would not revert to policy previously in effect, rendered plaintiff’s
challenge moot). Thus, the district court properly dismissed Plaintiff’s third-party facial
challenge as moot.
III.
For these reasons, the judgment of the district court is
AFFIRMED.
29