Scott Millspaugh v. Randy Crider

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-10132

Non-Argument Calendar

____________________

SCOTT MILLSPAUGH,

Plaintiff-Appellant,

versus

COBB COUNTY FIRE AND

EMERGENCY SERVICES,

Defendant,

RANDY CRIDER,

KEVIN GROSS,

in their individual capacities,

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2 Opinion of the Court 22-10132

COBB COUNTY, GEORGIA,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:20-cv-03314-WMR

____________________

Before WILSON, LUCK, and LAGOA, Circuit Judges.

LAGOA, Circuit Judge:

Scott Millspaugh appeals the district court’s order granting

summary judgment for Cobb County, Georgia (the “County”);

Cobb County Director of Public Safety, Randy Crider, in his indi-

vidual capacity; and Deputy Chief of Fire and Emergency Services,

Kevin Gross, in his individual capacity (collectively “the Defend-

ants”), in his suit alleging First Amendment retaliation under 42

U.S.C. § 1983. He argues that the district court erred in granting

summary judgment for the Defendants because (1) he spoke as a

citizen when leaving a voicemail with Cobb County Commissioner

Keli Gambrill, and (2) Crider and Gross (“the Individual Defend-

ants”) were not entitled to qualified immunity. After careful con-

sideration, we hold that Millspaugh spoke as a public employee

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22-10132 Opinion of the Court 3

when leaving his voicemail and that his voicemail was not pro-

tected by the First Amendment. We also hold that the Individual

Defendants were entitled to qualified immunity. We, therefore,

affirm the district court’s order granting summary judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

On August 20, 2020, Millspaugh filed an amended complaint

alleging that his First Amendment rights were violated under 42

U.S.C. § 1983. In the amended complaint, he alleged that he was a

former firefighter for the Cobb County Fire Department (“the De-

partment”) and that he was demoted after leaving a voicemail with

Gambrill’s office regarding five non-operational firetrucks in Polit-

ical District One (“the District”), which Gambrill represented.

According to Millspaugh, he was a Firefighter III, who as-

sisted with the scheduling of staff in Battalion Four. He regularly

discussed staffing with his Battalion Chief, John Graham, as part of

his job duties. Millspaugh sometimes received notifications from

other firefighters regarding their use of leave, and Millspaugh was

responsible for finding another firefighter to fill their scheduled

shifts. He also helped call firefighters to work overtime if they were

needed to cover a shift. Millspaugh was required to notify Graham

of any staffing shortages within Battalion Four. In turn, Graham

reported to Fire Department District One Chief, Scott White.

White reported to the Deputy Chief of Response, Kevin Gross,

who reported to the Fire Chief, Randy Crider.

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4 Opinion of the Court 22-10132

On the morning of May 2, 2019, Millspaugh left a voicemail

with Gambrill’s assistant, Ryan Williams. In the voicemail, he

stated, “[h]ey, Ryan, this is Scott. . . . I was wanting to know if you

guys knew why there was five fire trucks not operational today in

[Political] District One. Thank you very much.” Millspaugh was

at the fire station, in uniform, and on duty when he left the

voicemail. He left the voicemail in hopes of scheduling a meeting

to discuss staffing issues in more detail. Millspaugh did not get a

call back from Gambrill’s office. This instance was the first time

Millspaugh called Gambrill’s office.

According to Millspaugh, he became concerned after re-

viewing the Department’s status board, which showed the non-op-

erational status of various fire-related vehicles. Ordinary citizens

of the District did not have real time access to the information on

the status board. A screenshot of the status board from May 2,

2019, reflected that six fire vehicles within District were out of ser-

vice. On the day he called Gambrill’s office, Millspaugh did not

raise his staffing concerns with anybody in his chain of command

at the Department. Prior to leaving the voicemail, Millspaugh did

not tell any manager or supervisor of the Department that he in-

tended to contact Gambrill’s office.

Rather than responding to Millspaugh, Gambrill’s office

contacted Crider to confirm that the fire-related vehicles were not

operational. Shortly after, Crider called Millspaugh to discuss the

voicemail. Later in the day, Graham ordered Millspaugh to go to

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22-10132 Opinion of the Court 5

the headquarters to discuss the voicemail. At some point on or af-

ter May 2, 2019, Millspaugh told Graham that he called Gambrill’s

office because of inadequate staffing. At the headquarters, Mill-

spaugh met in Crider’s office with Crider, Gross, White, and Gra-

ham. On July 19, 2019, Millspaugh again met with Crider, Gross,

White, and Graham. At that meeting, Millspaugh was notified that

he was being demoted from Firefighter III to Firefighter II. He was

told that he was being disciplined for making poor decisions, vio-

lating the chain of command, and making inaccurate or misleading

statements in his voicemail to Gambrill’s office. The demotion re-

sulted in a ten percent reduction in Millspaugh’s pay. Millspaugh’s

annual performance evaluation was changed from exceeds expec-

tations to meets expectations because of his voicemail to Gambrill.

The reduction of his performance evaluation negatively affected

the percentage of pay raise for which he was eligible the following

year.

In the amended complaint, Millspaugh asserted a First

Amendment retaliation claim under § 1983, arguing that his

voicemail was speech protected by the First Amendment and a mo-

tivating factor in the Defendants’ retaliatory adverse employment

actions. Millspaugh also stated a claim under Georgia’s whistle-

blower law, but he does not raise that claim on appeal.

The Defendants moved for summary judgment, arguing

that Millspaugh’s First Amendment claim failed because he was on

duty and acting as an employee when he conveyed his concerns

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6 Opinion of the Court 22-10132

about staffing to Gambrill’s office. The Defendants argued that be-

cause his speech fell within his ordinary duty of securing staffing,

he spoke as an employee, and his speech was not protected by the

First Amendment. The Defendants also argued that even if he

spoke as a citizen, the County had a stronger interest in promoting

the efficiency of public fire suppression services than Millspaugh

had in the speech. They argued that their expert witnesses, Gordon

Henderson and Tim Milligan, testified that a firefighter should only

circumvent the chain of command in a life-threatening situation

and that breaking the chain of command impacts the level of trust

between firefighters and their supervisors. The Defendants also ar-

gued that the Individual Defendants were entitled to qualified im-

munity because they acted within the scope of their discretionary

authority when the allegedly wrongful act occurred. Lastly, the

Defendants argued that the Individual Defendants did not violate a

clearly established constitutional right.

In support of their motion for summary judgment, the De-

fendants attached several transcripts, including the transcript from

Millspaugh’s deposition. Responding to questions from the De-

fendants’ attorneys, Millspaugh testified that a fire department is a

work environment that relies particularly on trust between em-

ployees in emergency situations. Millspaugh also testified that he

understood that, on May 2, 2019, he had the duty to notify his su-

pervisors of urgent matters by following the chain of command.

Millspaugh further testified the Department was a paramilitary or-

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22-10132 Opinion of the Court 7

ganization that operated under a rank system. The chain of com-

mand established a route of communication from the lowest

ranked firefighter up to the Fire Chief. He conceded that a break

in the chain of command could cause communication-related prob-

lems.

The Defendants also attached Crider’s deposition. Crider

testified that Millspaugh was demoted from Firefighter III to Fire-

fighter II because of the voicemail. Crider told Millspaugh that

leaving the voicemail with Gambrill’s office was a violation of

trust. Crider also testified that shortly after Millspaugh left the

voicemail with Gambrill’s office, Millspaugh stated that he left the

voicemail because he was concerned about staffing in the District

and the safety of people that lived in the District due to inadequate

coverage. Crider testified that Millspaugh’s voicemail disrupted

the Department’s operations because he and Graham had to take

the time to meet with Millspaugh and decide whether it was appro-

priate to discipline Millspaugh for the voicemail.

The Defendants additionally attached Gross’s deposition.

According to Gross, he oversaw the day-to-day operation of all fire-

fighters in all stations within the Department. Gross authored a

report recommending to Crider that Millspaugh be demoted be-

cause Millspaugh’s assertion that five firetrucks were non-opera-

tional on May 2, 2019, was misleading and inaccurate. Gross also

testified that after the May 2, 2019, meeting, Gross called Mill-

spaugh into his office and asked him why he left the voicemail with

Gambrill’s office. Millspaugh did not respond, and that instance

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8 Opinion of the Court 22-10132

was the only time in Gross’s disciplinary investigation that Gross

discussed the voicemail with Millspaugh. On Millspaugh’s annual

review prepared in October 2019, Gross recommended changing

Millspaugh’s overall evaluation from exceeds expectations to

meets expectations and including a note under the evaluation cat-

egory for judgment and decision-making stating that Millspaugh

was disciplined for contacting Gambrill’s office without permis-

sion.

And the Defendants attached Graham’s deposition. On May

2, 2019, Graham and Millspaugh discussed concerns about fire-

trucks being out of service due to a lack of staffing, and Graham

sent Millspaugh to another fire station to meet the minimum staff-

ing requirements to keep a truck in service. Graham did not recall

discussing safety concerns with Millspaugh until after he learned of

Millspaugh’s voicemail to Gambrill’s office. He felt that Mill-

spaugh undermined his authority by calling Gambrill’s office in-

stead of giving him a chance to address the staffing shortage. Gra-

ham also testified that leading up to May 2, 2019, it was generally

known that staffing was an ongoing problem, due to a change in

overtime hiring practices requiring battalion chiefs to wait to hire

overtime staff until the day before the needed shift. Graham dis-

cussed the change with his direct superiors, expressing concern that

the difficulty in staffing would affect the safety of Cobb County res-

idents. Graham prepared Millspaugh’s performance evaluation in

2019. Graham originally evaluated Millspaugh’s overall perfor-

mance as exceeds expectations but was instructed to decrease the

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22-10132 Opinion of the Court 9

evaluation to meets expectations. Graham disagreed with the de-

cision to demote Millspaugh and believed a written reprimand was

a more appropriate form of discipline. He expressed his disagree-

ment to his superiors, but Millspaugh was still demoted.

In response to the Defendants’ motion for summary judg-

ment, Millspaugh argued that his voicemail was not within the or-

dinary scope of his job’s duties but merely concerned his ordinary

duties. Millspaugh asserted that he contacted Gambrill’s office as

an informed constituent to offer ideas on how to solve the staffing

problems. He also argued that the Individual Defendants were not

entitled to qualified immunity because they knowingly violated his

First Amendment rights. In support, Millspaugh attached his own

declaration, in which he stated that his goal in reaching out to Gam-

brill’s office was to offer ideas on long-term compensation policies

that could improve the retention of firefighters and alleviate staff-

ing concerns.

In reply, the Defendants reasserted their argument that Mill-

spaugh spoke as an employee when he left the voicemail with

Gambrill’s office. The Defendants also maintained that Mill-

spaugh’s interest in the voicemail did not outweigh their interest in

protecting the Department’s ability to provide fire protection to

Cobb County. Finally, the Defendants reiterated their argument

that the Individual Defendants were entitled to qualified immun-

ity.

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10 Opinion of the Court 22-10132

On October 5, 2021, the district court held a hearing on the

motion for summary judgment. The Defendants argued that Mill-

spaugh’s call to Gambrill’s office was directly related to his review

of the status board, which was part of his official job responsibili-

ties. The district court asked Millspaugh what role his declaration

should play in the litigation, and Millspaugh argued that the decla-

ration explained his motivation in leaving the voicemail with Gam-

brill’s office. The district court stated that the declaration appeared

to be self-serving because it was an after-the-fact explanation of his

reasoning that was unavailable to the Defendants when they de-

cided to demote him. The district court stated that the declaration

was relevant to some matters, but the after-the-fact reasoning for

leaving the voicemail was irrelevant in evaluating the Defendants’

actions.

After the hearing, the district court granted summary judg-

ment for the Defendants on all of Millspaugh’s claims. The district

court found that Millspaugh left the voicemail with Gambrill’s of-

fice while on duty, shortly after discussing staffing issues with Gra-

ham, and in direct response to information he acquired while per-

forming his job as a Firefighter III. Therefore, the voicemail in-

volved the subject matter of his job duties and was not protected

by the First Amendment. The district court also determined that

the County’s interest in the efficiency of the Department out-

weighed Millspaugh’s interest in the speech. Trust is particularly

important in providing effective emergency services to the public,

and the voicemail undermined the trust Millspaugh’s superiors had

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22-10132 Opinion of the Court 11

in him. Finally, the district court determined that the Individual

Defendants were entitled to qualified immunity. The district court

concluded that because Millspaugh did not engage in constitution-

ally protected speech, he could not prove that the Individual De-

fendants violated his constitutional rights.

This appeal ensued.

II. STANDARDS OF REVIEW

We review the grant of summary judgment de novo.

Thomas v. Cooper Lighting Inc., 506 F.3d 1361, 1363 (11th Cir.

2007). “Summary judgment is appropriate when ‘there is no gen-

uine issue of material fact and . . . the moving party is entitled to a

judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)).

Summary judgment may be affirmed if there exists any adequate

ground for doing so, regardless of whether it is the one on which

the district court relied. Fitzpatrick v. City of Atlanta, 2 F.3d 1112,

1117 (11th Cir. 1993). In addition, we review the grant of qualified

immunity de novo. Courson v. McMillian, 939 F.2d 1479, 1486

(11th Cir. 1991).

III. ANALYSIS

On appeal, Millspaugh sets forth two overarching argu-

ments for why the district court erred in granting summary judg-

ment. First, Millspaugh argues that his voicemail was protected by

the First Amendment because he left the voicemail as a citizen, not

an employee. Second, he argues that the Individual Defendants

were not entitled to qualified immunity because they violated his

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12 Opinion of the Court 22-10132

clearly established First Amendment rights. We address each argu-

ment in turn.

A. Millspaugh’s Speech Was Not Protected by the First

Amendment

Millspaugh argues the district court erred in determining

that he left the voicemail as an employee, rather than a citizen, be-

cause it misapplied the framework set forth in Garcetti v. Ceballos,

547 U.S. 410 (2006), and its progeny. He argues that the district

court misapplied the five factors in determining whether a public

employee is speaking as an employee or a citizen: “(1) speaking

with the objective of advancing official duties; (2) harnessing work-

place resources; (3) projecting official authority; (4) heeding official

directives; and (5) observing formal workplace hierarchies.” Fer-

nandez v. Sch. Bd. of Miami-Dade Cnty., 898 F.3d 1324, 1332 (11th

Cir. 2018).

As to the first factor, Millspaugh argues that the district court

erroneously relied on Alves v. Board of Regents of the University

System of Georgia, 804 F.3d 1149 (11th Cir. 2015), because, unlike

Alves, he contacted Gambrill’s office not to complain about the

workplace—specifically, the staffing shortages—but to ensure pub-

lic safety. He argues that the district court improperly construed

facts in the Defendants’ favor by concluding that the voicemail was

offered pursuant to his job duties and improperly declined to con-

sider his declaration as self-serving despite corroborating evidence

indicating he left the voicemail out of concern for the safety of cit-

izens. As to the second factor, Millspaugh argues that he did not

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22-10132 Opinion of the Court 13

use official channels or harness the Department’s resources in con-

tacting Gambrill’s office. As to the third factor, Millspaugh argues

that he did not present himself as a figure of authority or even rep-

resent that he was a firefighter. As to the fourth and fifth factors,

he contends that he did not follow official directives or observe for-

mal workplace hierarchies since he had no obligation to report

non-operational vehicles to Gambrill.

Millspaugh also argues that the district court erred in finding

that even if his speech were protected, the County’s interest in ef-

ficiency outweighed his interest in that protected speech. He ar-

gues that the district court ignored the balancing requirement in

Pickering v. Board of Education, 391 U.S. 563 (1968), and effec-

tively created an “absolute bar” against public safety employees

from speaking outside the chain of command by allowing an asser-

tion of loss of trust to outweigh the employee’s speech interest. He

also argues that the record does not reflect a disruption in the work-

place or a loss of trust because (1) Graham disagreed with his de-

motion and rated him highly in his annual evaluation, (2) the issue

of understaffing was already well known to the Defendants, and (3)

Crider conceded that the voicemail did not disrupt the Depart-

ment’s service provision.

Relatedly, Millspaugh argues that the district court’s Picker-

ing analysis failed to appreciate the minimal weight that is typically

assigned to a fire department’s interest in efficiency. While para-

military organizations generally have a strong interest in efficiency,

Millspaugh cites several cases in which firefighters reporting public

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14 Opinion of the Court 22-10132

safety concerns weighed heavily in the interest of the protected

speech because few subjects are of greater concern to the average

citizen than the provision of basic fire and rescue services. See, e.g.,

Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554 (11th Cir.

1995); Porter v. Califano, 592 F.2d 770 (5th Cir. 1979); Abad v. City

of Marathon, 472 F. Supp. 2d 1374 (S.D. Fla. 2007); Rodin v. City of

Coral Springs, 229 F. App’x 849 (11th Cir. 2007). Millspaugh sub-

mits that a fire department’s paramilitary status is relevant only in

a few extreme situations that are not applicable here. Finally, Mill-

spaugh argues that the Defendants’ expert witnesses, who stated

that firefighters should not go outside the chain of command unless

there is a life-threatening situation, make it impossible for firefight-

ers to engage in protected speech because life-threatening situa-

tions only arise in the scope of their duties.

In response, the Defendants argue that the district court cor-

rectly held that Millspaugh was speaking as an employee and not

as a private citizen. They first argue that to determine whether an

individual is speaking as an employee or a citizen, the Court must

consider the “content, form, and context” of the speech. See Moss

v. City of Pembroke Pines, 782 F.3d 613, 621 (11th Cir. 2015). Based

on the content, context, and form of the voicemail, the Defendants

argue, Millspaugh’s speech owed its existence to, and was in fur-

therance of, his official job duties. Specifically, as to the voicemail’s

contents, the Defendants note that Millspaugh only mentioned the

purported “not operational” status of five firetrucks on that partic-

ular day due to a perceived lack of staffing, which coincided with

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22-10132 Opinion of the Court 15

his duty to report staffing concerns to Graham. While Millspaugh

did not indicate that he was a firefighter in the voicemail, there was

similarly no indication that he was speaking as a citizen. Next, the

Defendants contend that Millspaugh’s official duties in staffing var-

ious stations and monitoring the status board, which ordinary citi-

zens cannot access in real time, led Millspaugh—who was on duty,

in uniform, and at the fire station—to leave the voicemail. Thus,

the context indicates that he left the voicemail as an employee. Fi-

nally, the Defendants assert that the form in which Millspaugh

made the speech indicates he was speaking as an employee because

he left a voicemail at Gambrill’s office, instead of speaking to the

broader public in a public forum.

The Defendants also argue that the motive behind Mill-

spaugh’s voicemail is irrelevant because courts generally consider

the motive for one’s speech only when determining whether the

speech is a matter of public concern—not when determining

whether the speaker is speaking as a citizen. They additionally ar-

gue that Millspaugh’s decision to speak outside the chain of com-

mand does not weigh in favor of finding that he was speaking as a

citizen, as his failure to follow instructions does not change the fact

that the speech arose in the course of his job responsibilities.

The Defendants also argue that even if Millspaugh spoke as

a citizen, the district court correctly concluded under Pickering

that the County’s interest in promoting the efficiency of public ser-

vices outweighed Millspaugh’s interest in his speech. They argue

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16 Opinion of the Court 22-10132

that this Court must consider the Department’s status as a paramil-

itary organization and give deference to the state’s heightened in-

terest in regulating the conduct of employees and that the cases

that Millspaugh relies on are inapposite. Finally, the Defendants

argue that the record reflects that Millspaugh’s superiors lost trust

in him because of the voicemail, causing a disruption within the

Department. They note that Millspaugh’s superiors were pulled

from other job responsibilities to handle the situation caused by

Millspaugh’s voicemail and that Millspaugh himself acknowledged

the potential harm of deviating from the chain of command.

Millspaugh’s arguments are unavailing. State actors may be

held liable for depriving persons of any rights secured by the Con-

stitution. 42 U.S.C. § 1983. A § 1983 First Amendment retaliation

claim requires a four-part analysis. Moss, 782 F.3d at 617–18. First,

we determine whether the plaintiff’s speech “was made as a citizen

and whether it implicated ‘a matter of public concern.’” Id. (quot-

ing Carter v. City of Melbourne, 731 F.3d 1161, 1168 (11th Cir.

2013)). Second, if the plaintiff’s speech was made as a citizen and

implicated a matter of public concern, then we weigh the plaintiff’s

interests in free speech against the government’s interest in regu-

lating speech “to promote ‘the efficiency of the public services it

performs through its employees.’” Id. at 618 (quoting Carter, 731

F.3d at 1168–69). These first two inquiries inform whether the

plaintiff’s speech is protected speech under the First Amendment.

Id. Third, if the plaintiff’s speech is protected speech, the plaintiff

must show that his speech was a “substantial motivating factor” in

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22-10132 Opinion of the Court 17

the alleged adverse employment action. Id. Finally, if the plaintiff

makes this showing, then the burden shifts to the government to

prove that it would have performed the adverse action even in the

absence of the plaintiff’s speech. Id.

The first part of the four-part analysis requires that the em-

ployee meet two elements: (1) that he spoke as a citizen and (2) that

the speech addressed matters of public concern. Boyce v. Andrew,

510 F.3d 1333, 1342–43 (11th Cir. 2007). If the plaintiff cannot make

this showing, then there can be no First Amendment issue, and the

constitutional inquiry ends. Id. at 1343. These two elements are

questions of law that the district court must decide. Vila v. Padron,

484 F.3d 1334, 1339 (11th Cir. 2007).

Generally, whether a plaintiff speaks as a citizen depends on

whether the speech itself is ordinarily within the scope of an em-

ployee’s duties, not whether it merely concerns those duties. Lane

v. Franks, 573 U.S. 228, 240 (2014). Speech made pursuant to an

employee’s job duties is not speech made as a citizen and is, there-

fore, not protected by the First Amendment. Moss, 782 F.3d at 618;

see also Boyce, 510 F.3d at 1342 (explaining that where public em-

ployees make statements pursuant to their official duties, they are

not speaking as citizens for First Amendment purposes). There is

no comprehensive framework for this analysis; rather, courts must

inquire into whether, as a practical matter, the speech “owes its

existence” to the employee’s professional responsibilities. Moss,

782 F.3d at 618 (quoting Garcetti, 547 U.S. at 421). Relevant, but

nondispositive, factors include: “the employee’s job description,

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18 Opinion of the Court 22-10132

whether the speech occurred at the workplace, and whether the

speech concerned the subject matter of the employee’s job.” Id.

Formal job descriptions do not control the inquiry because they

may bear little resemblance to the duties an employee is actually

expected to perform, and employers may craft broad descriptions

to restrict the rights of employees under the First Amendment.

Garcetti, 547 U.S. at 424–25. Instead, “we look to the ‘content,

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

record.’” Vila, 484 F.3d at 1340 (quoting Connick v. Myers, 461

U.S. 138, 146 (1983)).

Additionally, to determine “whether the purpose of the em-

ployee’s speech was to raise issues of public concern or to further

her own private interest, . . . ‘[w]e ask whether the main thrust of

the speech in question is essentially public in nature or private.”

Alves, 804 F.3d at 1162 (quoting Vila, 484 F.3d at 1340); accord

Boyce, 510 F.3d at 1344; see also, e.g., Mitchell v. Hillsborough

County, 468 F.3d 1276, 1285–86 (11th Cir. 2006) (“Thus, if [the

plaintiff’s] speech, when context, form and motivation are

weighed, truly did act as a satire or parody, and the point of that

satire or parody was to express a viewpoint in the Public Access

debate, the speech could touch on a matter of public concern.”).

If we determine that the plaintiff spoke as a citizen and on a

matter of public concern, we then weigh the plaintiff’s interest in

his speech against the defendant’s interest in promoting the effi-

ciency of the public services it performs through its employees.

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22-10132 Opinion of the Court 19

Pickering, 391 U.S. at 568. In making this determination, we con-

sider the “manner, time, and place” of the speech, as well as the

context in which it arose. Moss, 782 F.3d at 621 (quoting Leslie v.

Hancock Cnty. Bd. of Educ., 720 F.3d 1138, 1346 (11th Cir. 2013)).

Other relevant factors include whether the statement “impairs dis-

cipline by superiors or harmony amongst co-workers, has a detri-

mental impact on close working relationships for which loyalty and

confidence are necessary, or impedes the performance of the

speaker’s duties or interferes with the regular operation of the en-

terprise.” Id. (quoting Leslie, 720 F.3d at 1346). The government’s

interest in avoiding disruption does not require proof of actual dis-

ruption, and proof of a reasonable possibility of adverse harm is

sufficient. Id. at 622. In applying the Pickering test, we consider

the special concerns inherent to managing paramilitary organiza-

tions, such as fire departments or police departments. Oladeinde

v. City of Birmingham, 230 F.3d 1275, 1293 (11th Cir. 2000); Moss,

782 F.3d at 621.

In this case, it is undisputed that Millspaugh’s speech ad-

dressed matters of public concern. Indeed, Millspaugh’s voicemail

concerned the staffing and availability of fire suppression services,

which are important issues for the safety of the community, and

therefore, matters of public concern.

We thus must determine whether Millspaugh spoke as a cit-

izen or an employee. And, in analyzing the content, form, and con-

text of his speech as revealed by the whole record, we conclude

that Millspaugh spoke pursuant to his official duties and his speech

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20 Opinion of the Court 22-10132

owes its existence to his official responsibilities. We proceed by

tracking Millspaugh’s arguments based on the factors set forth in

Fernandez. See 898 F.3d at 1332.

As for the first Fernandez factor of whether Millspaugh was

speaking with the objective of advancing his official duties, id., it is

undisputed that ensuring adequate staffing within his battalion was

squarely within Millspaugh’s job responsibilities and that he often

had conversations with Graham about finding adequate staff to

keep their vehicles in operation. Millspaugh’s job duties also in-

cluded receiving calls from firefighters who were missing a shift

and calling other firefighters to work overtime to cover missed

shifts. His voicemail, in which he stated, “[h]ey, Ryan, this is Scott

. . . I was wanting to know if you guys knew why there was five fire

trucks not operational today in [Political] District One[,]” sought to

advance his professional responsibilities of securing more staff to

operate firetrucks. Millspaugh’s attempt to draw a distinction be-

tween his day-to-day responsibility in assigning staff to firetrucks

and his voicemail purportedly seeking to address a public safety cri-

sis is unpersuasive given the content of the voicemail itself. He

plainly did not reference any staffing shortages beyond that partic-

ular day, broader public safety concerns, or other policy issues. We

therefore conclude this factor weighs against Millspaugh speaking

as a citizen.

As to the second factor of whether Millspaugh harnessed

workplace resources, id., Millspaugh’s uncontested testimony re-

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22-10132 Opinion of the Court 21

veals that before leaving the voicemail, he harnessed the Depart-

ment’s resources by reviewing the status board, which is unavaila-

ble to ordinary citizens. And we find Millspaugh’s argument that

his use of the status board does not amount to a harnessing of

workplace resources because he only used workplace resources to

inform, not communicate, unpersuasive. As to the third factor of

whether Millspaugh projected official authority, id., while Mill-

spaugh is correct in that he did not present himself as a figure of

authority, it is also evident that he did not state that he was a citi-

zen, and he conveyed information to which only a firefighter

would have access. We thus conclude that the second and third

factors weigh against Millspaugh speaking as a citizen.

Finally, while the fourth and fifth Fernandez factors may

weigh in favor of Millspaugh because he did not follow official di-

rectives or observe formal workplace hierarchies, see id., we con-

clude they do not overcome the first three factors, which indicate

that, as a practical matter, Millspaugh’s voicemail owes its exist-

ence to his professional responsibilities. Cf. Alves, 804 F.3d at 1163

(holding that plaintiffs expressing their concerns to persons “well

outside” their chain of command did not mean that they were

speaking as citizens rather than employees). We also note that

Millspaugh testified that he left the voicemail while he was on duty,

at the fire station, and in direct response to checking the status

board to see which vehicles were in service. While none of these

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22 Opinion of the Court 22-10132

factors are dispositive, the factors ultimately weigh in favor of find-

ing that Millspaugh was not speaking as a citizen but as an em-

ployee. See Moss, 782 F.3d at 618.

Further, Millspaugh’s argument that the Defendants’ focus

on the content, form, and context of the speech must be analyzed

“as revealed by the whole record,” while correct, does not advance

his case. Vila, 484 F.3d at 1340. Viewing the record as a whole, the

content, form, and context of the voicemail reveal that Millspaugh

was speaking as an employee, not a citizen. Chronic staff shortages

reflected in the record buttress the finding that the content of the

voicemail was to further Millspaugh’s official duties in securing

staffing for his battalion. Viewing the record as a whole, the con-

text of the voicemail also indicates that Millspaugh was speaking as

a public employee: Millspaugh was at the fire station, in uniform,

and on duty when he left the voicemail. The form of the speech

also supports the finding that Millspaugh spoke as an employee

since he left a voicemail for Gambrill’s office and did not speak to

the broader public in a public forum. Millspaugh provides no legal

support for his contention that his form of speech indicates that he

was speaking as a citizen because Gambrill could have made his

voicemail public.

Millspaugh argues that we should consider his declaration

and contemporaneous explanation for the voicemail on May 2,

2019, but we disagree. As a preliminary matter, the Defendants

argue that motive is relevant only in determining whether the

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22-10132 Opinion of the Court 23

speech is a matter of public concern. While we have examined mo-

tive to determine whether the speech in question is a matter of

public concern, the Defendants’ cited cases do not establish that

motive is relevant only in determining public concern. See Alves,

804 F.3d at 1162; Boyce, 510 F.3d at 1344; Mitchell, 468 F.3d at

1285–86. Rather, as Millspaugh rightly argues, we have considered

motive in determining whether the speech was made as a citizen

or employee. See Moss, 782 F.3d at 619 (considering the plaintiff’s

testimony regarding motive in determining whether the plaintiff

spoke as an employee or citizen). Motive is thus relevant for both

inquiries.

Nonetheless, Millspaugh’s reliance on his declaration and his

contemporaneous explanation is misplaced. First, the district court

correctly determined that his declaration was immaterial because

it was an after-the-fact explanation of his reasoning that was una-

vailable to the Defendants at the time. Second, Millspaugh’s con-

temporaneous explanation for the voicemail on May 2, 2019, indi-

cates that the purpose of the voicemail was, at least in part, to en-

sure “adequate coverage in District 1” by increasing staffing. Fur-

ther, Millspaugh repeatedly testified that he left the voicemail be-

cause of understaffing. As noted above, securing additional staffing

directly furthered Millspaugh’s duties in overseeing staffing on a

day-to-day basis and ensuring sufficient staffing for his battalion.

Thus, Millspaugh’s own contemporaneous explanation indicates

that his voicemail was intended to advance his official duties.

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24 Opinion of the Court 22-10132

Accordingly, the district court did not err in determining

that Millspaugh’s voicemail arose within the scope of his profes-

sional responsibilities and was not protected by the First Amend-

ment. Because the district court did not err, this Court need not

consider whether the Defendants’ interest in promoting efficiency

in providing fire suppression services outweighs Millspaugh’s inter-

est in the speech. See Boyce, 510 F.3d at 1343 (“If the government

employee, however, was speaking as an employee, then there can

be no First Amendment issue, and the constitutional inquiry ends

with no consideration of the Pickering test.”).

But even if Millspaugh’s voicemail were protected speech

under the First Amendment, the district court correctly deter-

mined that the Defendants’ interest in promoting the efficiency of

fire suppression services outweighed Millspaugh’s interest in the

speech. See Pickering, 391 U.S. at 568. As an initial matter, while

Millspaugh relies on several cases to argue that we should not give

deference to the fact that the Department is a paramilitary organi-

zation with a heightened interest in regulating employees, we do

not find these cases instructive. First, in Beckwith, 58 F.3d at 1564,

the question of whether the plaintiff’s speech was protected was

not disputed, and we have since held that the part of the Beckwith

holding that Millspaugh relies on is dicta, see Anderson v. Burke

County, 239 F.3d 1216, 1220 (11th Cir. 2001). Second, Millspaugh’s

reliance on Porter, 592 F.2d 770, is unpersuasive as Porter did not

involve a paramilitary organization. Third, Abad, 472 F. Supp. 2d

1374, is a non-binding district court decision in which the district

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22-10132 Opinion of the Court 25

court relied on the aforementioned dicta in Beckwith. Finally, Ro-

din, 229 F. App’x 849, is inapposite because the unpublished opin-

ion concerned the issue of whether the speech was of public con-

cern, not whether the speaker was speaking as an employee or cit-

izen. Meanwhile, we have consistently held that fire departments

are paramilitary organizations with a heightened interest in regu-

lating the conduct of employees. Moss, 782 F.3d at 621; Anderson,

239 F.3d at 1222. Further, in Moss, we recognized the heightened

interest of the fire department even though the case did not involve

an extreme situation, thereby establishing that the heightened in-

terest that fire departments have as a paramilitary organization is

not limited to extreme situations as Millspaugh argues. Moss, 782

F.3d at 616.

With this heightened interest in mind, we find that the un-

disputed testimonies of several individuals establish that Mill-

spaugh’s voicemail damaged his superiors’ trust in him and thereby

undermined the Department’s heightened interest in promoting

the efficiency of fire suppression services. Crider testified that Mill-

spaugh’s voicemail violated his trust, and Graham testified that he

felt undermined by Millspaugh’s conduct. Millspaugh himself tes-

tified that fire departments rely on trust among employees when

providing emergency services to the public. Millspaugh also ad-

mitted that breaking the chain of command could cause issues be-

tween a firefighter and his superiors. Given such undisputed testi-

mony, even after viewing the evidence in the light most favorable

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26 Opinion of the Court 22-10132

to Millspaugh, the record reflects that there was at least a reasona-

ble possibility of adverse harm to Millspaugh’s working relation-

ships with his superiors to tilt the Pickering analysis in the Defend-

ants’ favor. See Moss, 782 F.3d at 622 (holding that proof of a rea-

sonable possibility of adverse harm is sufficient).

Accordingly, Millspaugh’s speech was not protected by the

First Amendment.

B. Crider and Gross Were Entitled to Qualified Immunity

Millspaugh further argues that the district court erred in

granting qualified immunity to the Individual Defendants because

he engaged in speech that was protected by the First Amendment.

He claims that the law is clearly established that he is entitled to

First Amendment protections, the Individual Defendants did not

articulate any risk to the efficiency of their operations, and the In-

dividual Defendants knowingly violated the First Amendment by

retaliating against him. In response, the Defendants argue that

Millspaugh’s First Amendment rights were not violated for the rea-

sons discussed above and that even if there were a First Amend-

ment violation, the specific right was not clearly established.

We review the grant of qualified immunity de novo.

Courson, 939 F.2d at 1486. Qualified immunity is an affirmative

defense that entitles a government actor not to stand trial or face

the burdens of litigation in civil damages suits when he was en-

gaged in discretionary conduct that did not violate clearly estab-

lished statutory or constitutional rights that a reasonable person

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22-10132 Opinion of the Court 27

would have known. Koch v. Rugg, 221 F.3d 1283, 1294 (11th Cir.

2000). To be entitled to qualified immunity, the defendant must

establish that “he was acting within the scope of his discretionary

authority.” Gaines v. Wardynski, 871 F.3d 1203, 1208 (11th Cir.

2017). Once this threshold inquiry is met, the burden shifts to the

plaintiff to establish that qualified immunity is not appropriate. Id.

The plaintiff must show that: (1) the defendant violated his consti-

tutional rights, and (2) that, at the time of the violation, those rights

were clearly established. Id.

Millspaugh’s arguments are unavailing. As Millspaugh con-

cedes, qualified immunity turns on whether Millspaugh’s

voicemail is protected by the First Amendment. For the reasons

stated above, we find that Millspaugh’s voicemail was not pro-

tected by the First Amendment. And because Millspaugh’s

voicemail was not protected by the First Amendment, he fails to

meet his burden of proving that the Individual Defendants violated

any constitutional rights. See id. Accordingly, the district court did

not err in determining that the Individual Defendants were entitled

to qualified immunity, and we need not proceed further.

IV. CONCLUSION

For the reasons stated, we affirm the district court’s order.

AFFIRMED.