            Case: 14-11240    Date Filed: 03/31/2015   Page: 1 of 16


                                                                       [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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