Mike Fitzpatrick v. City of Frankfort, Kentucky

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 08a0785n.06

Filed: December 24, 2008

No. 07-6484

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

MIKE FITZPATRICK,

Plaintiff-Appellant,

v. On Appeal from the United

States District Court for the

CITY OF FRANKFORT, KENTUCKY; WALLACE Eastern District of Kentucky

POSSICH, Individually and in his official capacity as at Frankfort

City of Frankfort Fire Chief,

Defendants-Appellees.

/

Before: GUY and GRIFFIN, Circuit Judges; and WATSON, District Judge.*

RALPH B. GUY, Jr., Circuit Judge. Plaintiff Mike Fitzpatrick appeals from the

entry of summary judgment in favor of defendants, the City of Frankfort, Kentucky, and its

Fire Chief Wallace Possich, on plaintiff’s claim of retaliation in violation of his First

Amendment rights. 42 U.S.C. § 1983.1 Plaintiff argues that it was error to conclude that he

could not state a claim under Pickering’s two-part test for First Amendment retaliation claims

*

The Honorable Michael H. Watson, United States District Judge for the Southern District of Ohio,

sitting by designation.

1

Plaintiff does not separately challenge the decision to decline to exercise supplemental jurisdiction

over his state law claims for constructive discharge, outrageous conduct, and punitive damages.

No. 07-6484 2

by public employees. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968); Connick v. Myers,

461 U.S. 138, 149-55 (1983). The district court found that although plaintiff engaged in at

least some protected activity, his interests were outweighed by the defendants’ interests in

promoting the efficiency of the public services provided by fire department employees. After

review of the record and the applicable law, we affirm.

I.

Mike Fitzpatrick was employed from July 1989 until May 31, 2006, as a firefighter

and EMT/paramedic with the Frankfort Fire Department. Plaintiff helped organize the

Firefighter’s Local 1017 in 1997, although the union is not recognized by the City for

collective bargaining purposes. Plaintiff served as union president from 1997 until 2000.

Wallace Possich was appointed Fire Chief with the support of the union in 1998.

Plaintiff described himself as a “strong and vocal advocate of the civil service system,

a vocal and active participant in the union, and a proponent of issues related to firefighter

safety and job security.” The district court more pointedly characterized this action as “the

unfortunate culmination of a very difficult working relationship.” Summarizing, the district

court explained that:

From 1996 on, Fitzpatrick brought numerous complaints to the Fire

Department’s attention challenging department policies and personnel matters,

raising allegations of discrimination and preferential treatment of department

employees, critiquing the department’s treatment of the firefighter’s union, and

advocating for greater inclusion of the civil service system in the department

hierarchy. These complaints were variously brought through official written

grievances, problem resolution forms, and letters to officials of the Fire

Department and the City of Frankfort, as well as through statements during

department and union meetings.

No. 07-6484 3

The district court also observed that Fitzpatrick’s employment record revealed “a generally

antagonistic and uncooperative attitude towards his superiors and department policies, and

that this attitude [was] exhibited throughout his tenure at the Fire Department.”

Among the many complaints were: plaintiff’s objections to his being required to do

additional training in 1996; his grievance about the decision to eliminate age-based

differences in physical agility standards in 1996; and his questioning of changes to the fitness

test and job description in 1997. In 1998, plaintiff initiated a complaint alleging abusive

conduct by Lt. Larry Tucker against another firefighter and the failure of the chain of

command to act. Chief Possich’s investigation concluded, among other things, that

plaintiff’s complaints were unfounded and not based upon personal knowledge. Possich

added that plaintiff had “demonstrated an uncooperative and antagonistic attitude during a

meeting to attempt to resolve this issue.” Plaintiff also persisted in complaints regarding the

decision to exempt two “grandfathered” firefighters from ambulance “ride time” hours.

Fitzpatrick takes credit for the subsequent change in that policy, as well as for the fact that

those firefighters later became certified EMTs. None of these complaints, however, were

identified as protected speech or as motivation for the alleged retaliation.

Rather, plaintiff argues that he engaged in protected speech in challenging the

decisions concerning the positions of EMS Director, EMS Shift Supervisor, Emergency

Preparedness Coordinator, and Assistant Fire Chief over the course of several years

preceding his retirement. The district court concluded that, at least with respect to the

proposal to remove the Assistant Fire Chief position from the civil service, plaintiff’s speech

No. 07-6484 4

touched on matters of public concern. As is discussed later, the district court also assumed

for purposes of summary judgment that plaintiff’s speech concerning the duties of the

Emergency Preparedness Coordinator, a position created outside the civil service, addressed

matters of public concern. Defendants do not challenge the district court’s conclusions or

assumptions in this regard, nor does plaintiff appeal from the determination that much of the

speech involved internal personnel disputes that did not touch on matters of public concern.

Three specific instances of alleged retaliation were identified by plaintiff: an oral

reprimand in July 2005; a change in supervisors in November 2005; and a written reprimand

in May 2006. Apart from these actions, plaintiff was also disciplined for falling behind in

the required “ride time” hours during the summer of 2005. In September 2005, the matter

was resolved by allowing plaintiff to drop from primary to secondary paramedic status

without having to make up the missed “ride time” or return the premium pay he had

collected. This discipline, however, was not alleged to have been retaliatory.2

The first incident of alleged retaliation occurred in July 2005, when Possich called

plaintiff into the fire station’s kitchen, asked plaintiff what his “problem” was with Deron

Rambo, and threatened to charge him with insubordination when plaintiff claimed ignorance.

It was later revealed that another employee had made the inquiry about Rambo that prompted

this exchange, and the matter was dropped. Still, the district court noted that plaintiff

2

This resulted in a complaint by another firefighter, who characterized plaintiff’s shortfall in hours

as a result of a failure of supervision, accused Possich of giving plaintiff preferential treatment, and

complained that this resolution further undermined already poor morale. Possich acknowledged these

concerns as legitimate, but stood by the determination that it was best if plaintiff no longer worked as a

primary paramedic.

No. 07-6484 5

claimed to have been repeatedly scolded and verbally reprimanded for questioning Rambo’s

appointment as Emergency Preparedness Coordinator.

The second allegedly retaliatory act was the decision in November 2005 to change the

supervisor on plaintiff’s crew while plaintiff and a few other firefighters were away helping

with Hurricane Katrina relief. The decision to transfer plaintiff’s supervisor, Lt. Ray Travis,

to an open vacancy on another crew was allegedly made over Travis’s objections and

contrary to the department’s past practice of assigning a newly promoted supervisor to the

existing vacancy. Plaintiff was told that the newly promoted Lt. Ben Boggs announced on

his first day that he had been “sent down here to straighten Mike Fitzpatrick out . . . [with]

the blessing of the Chief.” Boggs denied making this statement, while Possich testified that

the transfer decision was jointly made based on the recommendation that Boggs would be

“best at Station 2.” Someone else allegedly told Battalion Chief John Unger, who was one

of the decisionmakers, that Boggs and Fitzpatrick did not get along, and Unger allegedly

responded, “I know, it’s great, it won’t last a day.” Unger denied making that statement,

however. Recognizing that the facts were disputed, the district court viewed the evidence

in the light most favorable to plaintiff and assumed that the change in supervisors was made

with plaintiff’s protected activity in mind.

Third, the reprimand in May 2006 involved plaintiff’s use of leave time. Plaintiff

requested permission to attend the three-month state legislative session during January,

February, and March 2006 to lobby on behalf of the Kentucky Professional Firefighters.

Chief Possich granted the request, with the stipulation that plaintiff work on the crew

No. 07-6484 6

whenever possible and maintain the required monthly training hours. When the legislative

session concluded, plaintiff took vacation for most of the month of April, worked one shift

on April 24, and then called in sick for the next three shifts for which he was scheduled to

work (April 27, April 30, and May 1). Even with this time off, plaintiff managed to voice

objections to the proposal that the Assistant Fire Chief position be removed from the civil

service. Plaintiff also prepared and distributed a response to another firefighter’s resignation

from the union with what the district court appropriately referred to as a “call to arms” to

union members to fight the department’s “assaults” on the civil service.

Possich prepared a written reprimand on May 4, 2006, charging plaintiff with abuse

of sick leave and requiring, by way of discipline, that plaintiff provide a physician’s

statement in order to use sick time in the future. In addition, because plaintiff had taken an

excessive amount of time off work during the previous 16-month period, Possich notified

plaintiff that he would not be approved for any further trade time, vacation, or holiday leave

for the remainder of the year.3 Plaintiff was called in on May 4, presumably to receive the

reprimand, but he refused and then did not report for his next shift on May 9. Possich and

another firefighter delivered the reprimand to plaintiff’s home on May 10, after which

plaintiff filed a lengthy complaint alleging retaliation and harassment. Plaintiff retired May

3

Possich reported, and plaintiff does not dispute, that although scheduled for 122 days in 2005,

plaintiff only worked 23 full duty shifts (8 of which were doing Hurricane Katrina relief work) and 16 partial

duty shifts during that year. Over the previous 16 months, plaintiff worked a total of 29 full duty and 17

partial duty shifts.

No. 07-6484 7

31, 2006, and filed this action in state court on June 2, 2006.4

After removal of the case to federal court and an opportunity for discovery, defendants

moved for summary judgment on several grounds. On October 3, 2007, the district court

granted defendants’ motions, entered summary judgment in favor of defendants on the First

Amendment claim, and declined to exercise supplemental jurisdiction over the state law

claims. Plaintiff filed a timely motion to alter or amend judgment, which was denied in

orders entered on November 7 and 13, 2007. This appeal followed.

II.5

Summary judgment is appropriate when there are no genuine issues of material fact

in dispute and the moving party is entitled to judgment as a matter of law. F ED. R. C IV. P.

56(c). In deciding a motion for summary judgment, the court must view the factual evidence

and draw all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). When an appeal is from the grant of

summary judgment and the denial of a Rule 59(e) motion to reconsider that decision, our

review of both decisions is de novo. Smith v. Wal-Mart Stores, Inc., 167 F.3d 286, 289 (6th

Cir. 1999); Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir. 1997).

To state a prima facie case of retaliation in violation of the First Amendment, a

4

It appears that plaintiff had decided to retire sometime before April 27, 2006, but it is not clear when

Possich became aware of it.

5

Possich also argued that he was entitled to qualified immunity because the plaintiff’s First

Amendment rights were not clearly established at the time. Concluding, as the district court did, that plaintiff

cannot demonstrate a constitutional violation, we do not reach this issue. Saucier v. Katz, 533 U.S. 194, 201

(2001). The first step in the qualified-immunity analysis is to determine whether the facts, viewed in the light

most favorable to the plaintiff, show that a constitutional violation occurred. Feathers v. Aey, 319 F.3d 843,

848 (6th Cir. 2003).

No. 07-6484 8

plaintiff must show that he engaged in constitutionally protected speech, that he was

subjected to adverse action or was deprived of some benefit, and that the speech was a

substantial or motivating factor in the adverse action. Brandenberg v. Hous. Auth. of Irvine,

253 F.3d 891, 897 (6th Cir. 2001) (citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,

429 U.S. 274, 287 (1977)). A public employee must meet additional standards to establish

that the speech is constitutionally protected. Leary v. Daeschner, 349 F.3d 888, 897 (6th Cir.

2003). Specifically, the public employee plaintiff must demonstrate (1) that he was speaking

as a citizen addressing matters of public concern; and (2) that his interest in addressing those

matters of public concern outweighs his employer’s interest “in promoting the efficiency of

the public services it performs through its employees.” Pickering v. Bd. of Educ., 391 U.S.

563, 568 (1968); see also Connick v. Myers, 461 U.S. 138, 143 (1983). Although there may

be factual questions about what expression occurred, we have recognized that both the issue

of whether the speech addresses a matter of public concern and the application of the

balancing test are questions of law that we review de novo. Leary, 349 F.3d at 898; Farhat

v. Jopke, 370 F.3d 580, 589 (6th Cir. 2004).

A. Matter of Public Concern

In general, speech addresses a matter of public concern when it “involves ‘issues

about which information is needed or appropriate to enable the members of society to make

informed decisions about the operation of their government.’” Brandenberg, 253 F.3d at 898

(citation omitted). This is in contrast with internal personnel disputes or complaints about

an employer’s actions. Id. (citing Brown v. City of Trenton, 867 F.2d 318, 322 (6th Cir.

No. 07-6484 9

1989)). “Whether an employee’s speech addresses a matter of public concern must be

determined by the content, form, and context of a given statement, as revealed by the whole

record.” Connick, 461 U.S. at 147-48. While motivation is relevant, “the pertinent question

is not why the employee spoke, but what he said.” Farhat, 370 F.3d at 591.6

This court has assumed that the classification of positions in public employment

within or outside the civil service is a matter of public concern. Dotson v. Abramson, No.

93-6542, 1995 WL 9267 (6th Cir. Jan. 10, 1995) (unpublished). Indeed, in Connick, the

Court noted the “demonstrated interest in this country that government service should depend

upon meritorious performance rather than political service.” 461 U.S. at 149. While

defendants have not challenged the district court’s findings in this regard, a brief summary

is helpful in weighing the competing interests under Pickering.

We turn first to the speech concerning the EMS Director and EMS Shift Supervisor

positions, which the district court found did not touch on matters of public concern. In early

2003, it appeared that the EMS Director position might be filled by Deron Rambo. Plaintiff

raised a number of objections to Rambo’s eligibility for the position, and applied for the

position himself. Plaintiff was interviewed, but no one was selected at that time. The

position ultimately went to Greg Moore, a member of the union. As the district court found,

the written documentation revealed that “Fitzpatrick’s concerns were primarily over the

6

The Supreme Court has clarified that a public employee does not speak as a citizen on matters of

public concern when the expressions are made “pursuant to his or her official responsibilities.” Garcetti v.

Ceballos, 547 U.S. 410, 424 (2006). Here, defendants conceded that the speech at issue was not made

pursuant to the official duties of plaintiff’s employment. Compare Weisbarth v. Geauga Park Dist., 499 F.3d

538, 542-47 (6th Cir. 2007) (holding that plaintiff’s comments made to a consultant hired by the employer

to perform a departmental evaluation were not made as a citizen as required for First Amendment protection).

No. 07-6484 10

perceived bias in favor of Rambo specifically, not over the future of the position within the

civil service.”

Similarly, the district court found that the objections plaintiff voiced concerning the

designation of three EMS Shift Supervisors did not mention civil service concerns. The

Board of Commissioners ultimately rejected plaintiff’s complaint, explaining that Shift

Supervisor was only a temporary duty assignment. The district court added that even if civil

service concerns underpinned plaintiff’s objections, those concerns could not be objectively

perceived to be the point of the grievances plaintiff brought.

Next, Possich created the position of Emergency Preparedness Coordinator outside

the classified civil service, and selected Rambo to serve in that capacity. Plaintiff explained

in his deposition that he never complained about the decision to create the position, only that

Rambo was allowed to perform firefighting duties. This dispute, however, was also included

in the letter that was the “call to arms” to defend the civil service. As a result, the district

court assumed that plaintiff’s speech regarding this position touched on matters of public

concern.

Plaintiff’s opposition to the proposal that the Assistant Fire Chief position be removed

from the civil service was the only speech specifically found to address a matter of public

concern. In a March 2006 letter resigning from the union, Greg Moore charged that the

union was pressing “mainly personal agenda items often tearing at our department.”

Plaintiff’s response, set forth in the open letter already mentioned, restated the disputes

regarding the EMS Director and Shift Supervisor positions, defended the union’s objections

No. 07-6484 11

to the scope of the duties of the Emergency Preparedness Coordinator, and characterized the

proposed change to the Assistant Chief position as an “assault” on the civil service system.

Finally, a public employee’s speech, activity, or association does not address a matter

of public concern merely because it is union related. Boals v. Gray, 775 F.2d 686, 692 (6th

Cir. 1985). Here, plaintiff does not contest the district court’s determination that even when

his speech addressed union issues, it was directed at personnel or internal policy issues rather

than a matter of public concern. While plaintiff’s union membership was recognized as

expressive conduct protected by the First Amendment, claims of retaliation for expressive

association are analyzed under Pickering’s two-part balancing test as well. Id.; see also

Akers v. McGinnis, 352 F.3d 1030, 1036 (6th Cir. 2003).

B. Pickering Balancing Test

Once it is determined that at least some speech or association is protected, Pickering

instructs us to balance Fitzpatrick’s interest in addressing these matters or associating with

the union against the City’s interest in promoting efficiency and maintaining discipline in the

public service. Connick, 461 U.S. 150; Pickering, 391 U.S. at 568. The Court has explained

that the government “must have wide discretion and control over the management of its

personnel and internal affairs,” including “the prerogative to remove employees whose

conduct hinders efficient operation,” because “[p]rolonged retention of a disruptive or

otherwise unsatisfactory employee can adversely affect discipline and morale in the work

place, foster disharmony, and ultimately impair the efficiency of an office or agency.” 461

U.S. at 151 (internal quotation marks and citation omitted). These interests have particular

No. 07-6484 12

resonance in the context of public safety departments, where loyalty, discipline, and

workplace harmony are especially important. See, e.g., Brown v. City of Trenton, 867 F.2d

318, 322-23 (6th Cir. 1989); McMurphy v. City of Flushing, 802 F.2d 191 (6th Cir. 1986).

The district court, referring to these interests as “esprit de corps” concerns, found plaintiff’s

protected expression was disruptive to discipline and workplace harmony such that

defendants were justified in taking the actions plaintiff alleges were retaliatory. See Meyers

v. City of Cincinnati, 934 F.2d 726, 730 (6th Cir. 1991) (“[W]e look for evidence of the

impact of the statement on the city’s legitimate organizational interests.”).

Plaintiff argues on appeal that it was clear error to find his speech and association

impaired the “esprit de corps” of the department. In support, plaintiff relies on testimony

from several superiors, including: the statement from plaintiff’s captain that he never had

cause to reprimand or discipline plaintiff; the opinion of Lt. Travis that plaintiff was a team-

oriented person who was good in the station and with the public; and the acknowledgment

by Possich and Unger that many of the issues raised were valid concerns about safety that

involved staffing levels, equipment upgrades, and policies and procedures. This evidence,

however, does not undermine the district court’s finding that the protected speech and

association undermined Possich’s authority and impaired the “esprit de corps” of the

department.

The government’s burden to show adequate justification for its acts varies depending

on the nature of the employee’s protected expression. Connick, 461 U.S. at 150. That is, the

greater the extent to which the speech involves matters of public concern, the stronger the

No. 07-6484 13

employer’s showing must be. Id. It is not necessary, however, “for an employer to allow

events to unfold to the extent that the disruption of the office and the destruction of working

relationships is manifest before taking action.” Id. at 152.

We agree with the district court’s assessment that the record reflects the disruptive

nature of plaintiff’s repeated objections and grievances concerning Rambo’s position as

Emergency Preparedness Coordinator and the proposal to remove the Assistant Fire Chief

position from the civil service. Plaintiff testified that he brought these issues up in union

meetings and got the union to support his complaints. With plaintiff’s later distribution of

the “call to arms” letter to union membership in the workplace, plaintiff’s speech openly

encouraged dissension by inciting the union membership to “fight” the department’s

decisions on these issues. Plaintiff’s letter announced that the union was seeking legal advice

about blocking the change to the Assistant Chief position. It is also beyond dispute that

plaintiff used his association with the union as a vehicle for voicing opposition to Possich’s

decisions. The district court did not err in finding that this showing met defendants’ burden.

Connick, 461 U.S. at 153 (emphasizing that “‘the employing agency’s institutional efficiency

may be threatened not only by the content of the employee’s message but also by the manner,

time, and place in which it is delivered’”) (citation omitted).

Further, we can not ignore evidence of dissension in the department, disharmony

between coworkers, and impairment of discipline reflected in the opposing letters sent in the

wake of plaintiff’s “call to arms.” In early April 2006, an unsigned letter on union stationary

was written to the Board of Commissioners to express the union’s “extreme displeasure” with

No. 07-6484 14

the leadership provided by Possich and asking that they intervene on behalf of the

firefighters.7 That letter complained specifically that there were firefighters working in

supervisory roles without testing through the civil service process. This “no confidence”

letter summarized by saying that Possich’s inaction on several issues “has produced feelings

of distrust and disrespect throughout the ranks of the department and the inconsistencies in

his leadership have caused a severe lack of confidence in his future capacities to take the

department forward progressively and professionally.” A response dated April 21, 2006, was

sent to commissioners and city officials to express confidence in Possich’s leadership and

attribute the “latest attack” on Possich to a few disgruntled employees. This letter also

blamed the drop in union membership to fewer than half of the firefighters on “several

[other] letters of similar tone and nature.”

Finally, plaintiff argues that the district court erred in granting summary judgment to

defendants because there is a “classic genuine issue of material fact” regarding the

motivation for the change in supervisors. Plaintiff specifically emphasizes that Possich,

Boggs, and Unger denied making the statements relied upon to draw the inference of

retaliation. This argument misapprehends the issue. While it is true that the evidence was

disputed on this point, we, like the district court, have assumed that there was a

“manipulation” of the supervisory assignments in retaliation for plaintiff’s protected speech

or association. This is clear from the district court’s conclusion that if the assignment of

Boggs to supervise plaintiff’s crew was motivated by a “desire to ‘straighten Fitzpatrick out,’

7

Plaintiff denied authoring this letter, but admitted to having reviewed a draft.

No. 07-6484 15

i.e., suppress his disruptive speech, then it is clear that the Defendants reasonably relied on

the ‘esprit de corps’ objective in authorizing the transfer.” If the decision was made, as

Unger apparently suggested, only to more effectively supervise plaintiff’s “ride time” and

training hours, that would not be actionable retaliation for First Amendment purposes.8

AFFIRMED.

8

Similarly, to the extent that plaintiff may argue that the reprimand in May 2006 was not driven by

a retaliatory motive, the disciplinary action is irrelevant to this retaliation claim. The district court reasoned

that if plaintiff’s allegations about selective withholding of leave time are accurate, then the reprimand

restricting and denying plaintiff leave may be seen as punishment intended to curtail plaintiff’s disruptive

speech. The district court explained that: “The fact that these reprimands did not explicitly focus on limiting

the scope of Fitzpatrick’s speech does not cast doubt on the “esprit de corps” motivations. When an

employer decides to discipline an employee in the hope of reducing the employee’s disruptive behavior, and

thus promote workplace harmony, the employer may pursue the discipline in many different ways. It is not

the duty of the courts to require government employers to utilize the most optimal, or even the most obvious,

ways of promoting ‘esprit de corps.’ Instead, the courts are instructed to defer to government employers’

judgment on their disciplinary and personnel decisions.”