William v. May v. Kevin Sasser

Case: 15-15766 Date Filed: 11/15/2016 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 15-15766

Non-Argument Calendar

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D.C. Docket No. 3:14-cv-00256-MCR-CJK

WILLIAM V. MAY,

Plaintiff-Appellant,

versus

KEVIN SASSER,

Defendant-Appellee,

DESTIN FIRE CONTROL DISTRICT,

Defendant.

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Appeal from the United States District Court

for the Northern District of Florida

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(November 15, 2016)

Case: 15-15766 Date Filed: 11/15/2016 Page: 2 of 5

Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

After termination as a firefighter in the Destin Fire Control District, William

V. May sued both the fire district and Kevin Sasser, chief of the district. Arguing

that the defendants retaliated against him for statements he made during a public

meeting hosted by the Board of Fire Commissioners, May sued under 42 U.S.C.

§ 1983 alleging a violation of the First Amendment. On appeal, May argues that

the district court erred by granting summary judgment in favor of Sasser and the

fire district. We affirm the summary judgment for Sasser and against May.

However, because the district court dismissed the complaint without resolving the

action against the fire district, we affirm in part and remand in part.

I.

We review de novo a grant of a motion for summary judgment, viewing the

evidence in the light most favorable to the non-moving party. Wilson v. B/E

Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). Summary judgment is

appropriate when there is no genuine issue of material fact. Fed. R. Civ. P. 56(a).

The First Amendment prohibits a public employer from retaliating against

an employee for exercising his protected free speech rights. Bryson v. City of

Waycross, 888 F.2d 1562, 1565 (11th Cir. 1989). “In cases where [a public

employer] denies discharging the employee because of speech,” we apply a

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“four-stage analysis.” Id. In the first stage of the analysis, we consider “whether

the employee’s speech may be ‘fairly characterized as constituting speech on a

matter of public concern.’” Carter v. City of Melbourne, 731 F.3d 1161, 1168

(11th Cir. 2013) (per curiam) (quoting Bryson, 888 F.2d at 1565).

A de novo review of the record reveals that, even before May spoke at the

public meeting, the defendants planned to terminate six firefighters, including

May, who lacked seniority. More importantly, May spoke at the meeting because

he feared termination, and his comments concerned the prospect of his termination.

Consequently, May’s speech concerned a personal employment matter, and cannot

“be fairly characterized as constituting speech on a matter of public concern.”

See Bryson, 888 F.2d at 1565 (internal quotation marks omitted). A “public

employee may not transform a personal grievance into a matter of public concern

by invoking a supposed popular interest in the way public institutions are run.”

Boyce v. Andrew, 510 F.3d 1333, 1344 (11th Cir. 2007) (per curiam) (quoting

Ferrara v. Mills, 781 F.2d 1508, 1516 (11th Cir. 1986)). Because May fails the

first stage of the “four-stage analysis,” we need not consider the remaining stages.1

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May argues that the district court erred in denying his motion for reconsideration based

on newly discovered evidence that another firefighter, Donald Watson, was not terminated in

spite of “substantially more egregious behavior.” This argument assumes that May wins the

third stage of the “four-stage analysis”—that “the employee’s speech played a ‘substantial part’

in the government’s decision to demote or discharge the employee.” Bryson, 888 F.2d at 1565.

Because May fails the first stage, we need not consider the remaining stages and decline to

assume May’s success on the third stage.

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See Carter, 731 F.3d at 1168. We affirm the summary judgment for Sasser and

against May.

II.

In a footnote in the order granting summary judgment for Sasser, the district

court implied that the complaint fails to state a claim against the fire district

because the complaint contains no claim “that a policy or custom of the [fire

district] caused [May] harm.” Then, instead of sua sponte dismissing the action

against the fire district or requiring May to amend the complaint, 2 the district court

determined that May intended to sue only Sasser and not the fire district. The

footnote justifies this determination by noting that May sued Sasser in both his

individual and official capacities and by stating, “An official-capacity suit is no

more than a suit against the governmental entity.”

May failed to realize that the district court had used the “policy or custom”

argument to extinguish his action against the fire district. Instead, he mistakenly

believed that in the footnote the district court criticized him for failing to assert the

argument against Sasser in his official capacity. Moving for reconsideration of the

Also, May argues that the district court erred in concluding that Sasser is entitled to

qualified immunity. Because we determine that May fails in his claim under the First

Amendment, we need not consider whether Sasser is entitled to qualified immunity, an inquiry

that involves a determination of whether Sasser’s conduct violated “clearly established statutory

or constitutional rights of which a reasonable person would have known.” Maggio v. Sipple,

211 F.3d 1346, 1350 (11th Cir. 2000) (internal quotation marks omitted)).

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Also, the district court failed to discuss whether May can sue a fire district rather than

the municipality within which the fire district is located.

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order that contains the footnote, May argued for an opportunity to assert that

argument. The district court declined to clarify the footnote and denied the motion

for reconsideration. Citing the footnote, May on appeal argues that “the district

court erred by dismissing defendant in his official capacity.”

The plaintiff is the master of the complaint. And the complaint names both

Sasser and the fire district as defendants. See Caterpillar Inc. v. Williams,

482 U.S. 386, 394–95, 107 S. Ct. 2425, 2431 (1987) (“It is true that

respondents . . . could have brought suit under § 301. As masters of the complaint,

however, they chose not to do so.”). The district court cannot assume knowledge

of May’s intention in naming the fire district as a defendant and must either

dismiss the action against the fire district for failure to state a claim or offer May

an opportunity to amend the complaint. Therefore, we vacate the summary

judgment as to the fire district and remand for reconsideration.

AFFIRMED IN PART AND REMANDED IN PART.

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