                                                              [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                 NOV 25, 2008
                                 No. 07-15489                  THOMAS K. KAHN
                             Non-Argument Calendar                 CLERK
                           ________________________

                  D. C. Docket No. 06-00701-CV-ORL-19JGG

H. ALAN BURTON,


                                                                Plaintiff-Appellant,

                                      versus

CITY OF ORMOND BEACH, FLORIDA,

                                                               Defendant-Appellee.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                        _________________________

                               (November 25, 2008)

Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

      H. Alan Burton (“Burton”) appeals the district court’s grant of the City of

Ormond Beach, Florida’s (“the City”) Federal Rule of Civil Procedure 50(a)
motion for judgment as a matter of law following Burton’s case-in-chief at trial.

Having thoroughly reviewed the record, we affirm.

                                   BACKGROUND

      From May 28, 1996 to August 1, 2005, the City employed Burton as its

Director of Leisure Services to generally manage the City’s recreation programs

and athletic field maintenance. Burton’s more specific duties included supervising

the City’s Recreation Manager, Recreation Supervisors, and several other

employees; planning for parks and facilities; preparing the department’s budget;

addressing citizen groups’ (such as the youth baseball and soccer leagues that

utilized the City’s recreation facilities) concerns about the ballfields; and serving as

the liaison to the Recreation Advisory Board (“RAB”), a group of citizens

appointed by the City Commission to advise the City on issues related to recreation

and the athletic fields. Burton reported to the Assistant City Manager, and

Burton’s interaction with the City Commission was essentially limited to

responding to a Commissioner’s request for information.

      The City’s organizational structure assigned the maintenance of the

recreation and athletic facilities to both Leisure Services and another department,

Public Works. Leisure Services oversaw the City’s athletic fields “inside the

fences,” but Public Works controlled the parks and maintenance “outside the



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fences.” Generally, if a citizen expressed to Burton a maintenance concern within

Public Works’s purview, Burton was to submit a work order to Public Works.

      In 2005, the City had undertaken review of the entire parks and recreation

system. For years, Burton had internally advocated for an integrated system that

unified the functions of Leisure Services and Public Works (as opposed to the

“hybrid” system in place). But he never advocated a unified system in his official

capacity because his duties obligated him to “adhere to the [City’s] official

position” to retain the hybrid system. In June 2005, the City Manager requested

that Burton provide him with a planning recommendation for a forty-acre park in

the newly developing Ormond Crossings area. Because Burton believed that the

request was improper and exceeded a parks and recreation “master plan” already

prepared by outside consultants, Burton did not comply with the request.

      On July 24, 2005, Stan Stockhammer (“Stockhammer”), an Ormond Beach

resident and director of a baseball league, emailed Burton (and another City

employee) and requested that the City do something to prevent foul baseballs from

flying into overgrown underbrush near the City’s “Nova Field 5” ballfield.

Stockhammer suggested the installation of netting to cure the problem. Burton

responded by email on July 25 that he would be glad to include the request for

netting in the next year’s fiscal budget and forward the underbrush issue to Public



                                          3
Works for a work order. Another constituent copied on the emails, Doug Wigley

(“Wigley”), responded to Burton’s email and stated that the underbrush was a

maintenance issue that should be addressed. Burton responded that he would work

order the task to Public Works and grounds maintenance.

      Later on July 25, John “Rick” Boehm (“Boehm”), a member of the RAB

whom Burton copied on his email to Wigley, added his thoughts to the discussion.

In an email to Burton, Stockhammer, Wigley, the City Commission, the City

Manager and Assistant Manager, and numerous other citizens, Boehm referred to

the prior emails between Burton and Stockhammer, criticized the City for under-

funding recreation projects and neglecting its sports facilities, and specifically

stated that the City’s “facilities [we]ren’t what they should be.” Boehm directly

expanded on Burton’s original response to Stockhammer that no funding was

available to refurbish Nova Field 5 within the next five years.

      Concerned about Boehm’s email, City Manager Isaac Turner (“Turner”),

Assistant City Manager Ted MacLeod (“MacLeod”), and Burton met on July 26 to

discuss maintenance of the athletic fields. At the meeting, Turner also expressed

anger about Burton’s failure to complete the requested recommendation on the

Ormond Crossings park. That same day, City Commissioner Bill Partington

(“Partington”) emailed Turner, suggested that Turner fire Burton, and requested



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Turner’s permission to respond to Boehm’s email, to which Turner agreed. On

July 27, Partington emailed everyone who had received Boehm’s email and

suggested that Burton was responsible for the City’s mishandling of the funding

and maintenance issues that Boehm had raised. Partington also felt that Burton had

the authority to address Stockhammer’s concerns and failed to do so, instead

giving a citizen “the run-a-round from staff.” Burton’s response to Stockhammer

caused Partington to “lose faith in the abilities of the current leadership in leisure

services.” Lastly, Partington concluded that “a strong re-organization is in order.”

      On July 29, Burton sent a lengthy responsive email to Partington, the other

City Commissioners, Turner, Boehm, Stockhammer, and the other individuals

copied on Partington’s email. Burton sent the email because “he believed he

needed to explain the Leisure Services organization and how it worked; how the

City government worked; and how the City actually operated; . . . and to explain

how [he] was attempting to improve the system.” (Appellant’s Br. at 9). The

email criticized the City’s organizational structure and management and, according

to Burton, covered many topics both pertaining to and outside his job function.

      The email pointedly noted a “qualitative managerial difference” between

Leisure Services and Public Works. Burton mentioned that he was passed over for

several promotions, criticized City Manager Turner’s performance, and raised the



                                            5
notion that Turner had violated the Florida Sunshine Laws. Burton added that

Turner failed to support him as Leisure Services Director and this might be

Burton’s only chance to speak on the subject as his “opinion ha[d] been muzzled

and intimidated by the current City Manager.” Burton also stated that Turner’s

request of Burton to provide the Ormond Crossings recommendation eliminated

public participation, betrayed other professionals, and made Burton feel dishonest.

Describing Nova Field 5 as “disgraceful and unsafe and nearly unplayable,” Burton

advised that he had shared his concerns with the City Manager but that “planning

for a safe and playable field did not make it on the funded list.” Burton concluded

the email by stating that the requested work on Nova Field 5 was being performed

that day, and that he agreed with a structural re-organization of the entire park and

recreation system.

      After discussing Burton’s email, Turner and MacLeod placed Burton on paid

administrative leave. The City terminated him on August 1, 2005, and the

termination letter stated only that Burton was an “at-will” employee who could be

terminated at any time. Alleging that he was fired for exercising his First

Amendment right to freedom of speech on matters of public concern in the July 29,

2005 email, Burton sued the City under 42 U.S.C. § 1983 for retaliation. In

denying the City’s summary judgment motion, the district court found that



                                           6
Burton’s speech addressed a matter of public concern but that a genuine factual

issue remained as to whether Burton spoke as a “citizen” or as a “public employee”

in the email to Partington.

      At trial, Burton testified that the email was a “personal email” expressing his

belief in a unified park system regardless of who was in charge, that he was trying

to improve the system, and that he mentioned Turner’s possible Sunshine Law

violation because it disturbed him. Concluding that Burton failed to present

sufficient evidence that he spoke as a citizen and not as a public employee, the

district court granted the City’s mid-trial motion for a directed verdict, from which

Burton appeals.

                                    DISCUSSION

      We review a district court’s grant of a “motion for judgment as a matter of

law de novo, considering only the evidence that may properly be considered and

the reasonable inferences drawn from it in the light most favorable to the

nonmoving party.” Rossbach v. City of Miami, 371 F.3d 1354, 1356 (11th Cir.

2004) (per curiam). “Where no legally sufficient evidentiary basis exists for a

reasonable jury to find for that party on that issue, judgment as a matter of law is

proper.” Id. (citation and quotations omitted).

      “[W]hen public employees make statements pursuant to their official duties,



                                           7
the employees are not speaking as citizens for First Amendment purposes, and the

Constitution does not insulate their communications from employer discipline.”

Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S. Ct. 1951, 1960, 164 L.Ed.2d 689

(2006). Following Garcetti, we “modified the analysis of the first step . . . for

analyzing alleged government employer retaliation to determine if an employee’s

speech has constitutional protection by deciding at the outset (1) if the government

employee spoke as an employee or citizen and (2) if the speech addressed an issue

relating to the mission of the government employer or a matter of public concern.”

Boyce v. Andrew, 510 F.3d 1333, 1342 (11th Cir. 2007) (per curiam) (citation and

footnote omitted). Whether an employee spoke as a citizen is a question of law

for the court. See id. at 1343 (“A court must . . . discern the purpose of the

employee’s speech.”); Battle v. Bd. of Regents for the St. of Ga., 468 F.3d 755, 760

(11th Cir. 2006) (per curiam) (whether the employee spoke as a citizen on a matter

of public concern is a threshold legal question); Morris v. Crow, 117 F.3d 449, 455

(11th Cir. 1997) (per curiam).

      Garcetti instructs that the inquiry into whether an employee spoke as a

citizen “is a practical one.” Boyce, 510 F.3d at 1342 (internal quotation marks and

citation omitted). We consider whether the public employee was acting as a

government agent at the time of the speech, and whether the speech “owes its



                                           8
existence to a public employee’s professional responsibilities.” Garcetti, 547 U.S.

at 421, 126 S. Ct. at 1960. Essential is whether Burton made his statements to the

Commissioner in the capacity of a citizen who did not work for the government.

See Akins v. Fulton County, Ga., 278 Fed Appx 964, 970-71 (11th Cir. 2008) (per

curiam) (discussing Garcetti’s distinction between public employee and citizen).

      Although Burton invites us to provide a framework for defining the scope of

an employee’s professional duties, no “serious debate” exists here about the

genesis of Burton’s email. The form and context in which Burton responded

shows that he sent the email for only one reason: to defend what he perceived as

Commissioner Partington’s attack on Burton’s job performance as Leisure Services

Director. Partington’s email neither required nor prohibited a response from

Burton. Both shocked and hurt by Partington’s criticism, and wanting to inform

Partington about how he had been trying to improve the system, Burton chose to

defend himself against an expression of displeasure with Burton’s handling of an

issue directly within his job responsibilities. The thrust of Burton’s email was that

Burton had been unfairly criticized for the work he had done in his job.

      Indeed, the first paragraph of Burton’s email to Partington addresses head-on

Stockhammer’s inquiry about Nova Field 5 and the work order Burton issued to

Public Works. Burton also discusses the work being completed on several fields



                                          9
“as I write” and his personal observation of such work—all responses to

allegations of his deficient job performance. Throughout, Burton refers to himself

as “your park and recreation professional” and closes the email by signing “H.

Alan Burton, Certified Park and Recreation Professional.” (Pl.’s Ex. 4). Burton

also mentions Ormond Crossings and the “professional opinion” that was asked of

him regarding this project. It is clear that Burton intended to defend his

performance directly to Commissioner Partington and the people with whom

Burton worked, including the RAB members.

      Burton’s email also systematically explains how Leisure Services operates

within the City’s internal structure and system of how athletic fields are

maintained. He disagrees with the budgeting process, the organization of the

City’s departments, and his perceived unfair treatment by the City Manager. And

most of these issues Burton had raised internally for many years in his official

capacity. We also agree with the district court that Burton’s copying of people

outside City employment is unpersuasive, as they were not included on his original

email chain and his response was clearly directed toward City leadership.

      Lastly, it is clear that Turner’s possible Sunshine Law violation was not the

impetus for Burton’s email. Admittedly, Burton responded to Stockhammer,

Wigley, and Boehm in his capacity as Leisure Services Director, and the subjects



                                          10
of those emails were part of Burton’s official duties. Those emails triggered

Partington’s attack on Burton’s job performance, which Burton defended. We

therefore agree with the district court that Burton failed to produce sufficient

evidence that he spoke as a “citizen” and not a “public employee.”

      AFFIRMED.




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