Stinebaugh v. City of Wapakoneta

ROGERS, Circuit Judge,

dissenting.

It is hard to imagine that the director of a small agency cannot implicitly expect one of his select principal subordinates, with whom the director has discussed a major policy proposal, to consult with the director before secretly contacting members of the decision-making body to oppose the proposal. The analysis in Pickering precludes such an anomalous result, at least— as in this case — where the subordinate is not alleging any wrongdoing or corruption. This case appears to involve the type of pure backstabbing that will destroy any close working relationship. The First Amendment does not protect such activity from adverse employment action.

Tom Stinebaugh’s interest in speaking with three city council members about the purchase of a heavy rescue engine was plainly outweighed by the City’s interest in promoting the efficiency of the Wapakoneta fire department. Pickering v. Bd. of Educ., 391 U.S. 563, 568 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968). A contrary conclusion could only be reached by ignoring Stinebaugh’s leadership position in the fire department, the internal channels through which he could have expressed his views, and the distrust and agitation among his colleagues that his comments engendered. Because Stinebaugh’s speech is unprotected, Kendall Krites and William Rains are entitled to summary judgment on Stinebaugh’s First Amendment retaliation claim.

Stinebaugh’s leadership position within the department at the time of his comments weighs against him in the Pickering balancing analysis. In assessing the interests of the employer and the speaker, courts must consider “the responsibilities of the employee within the agency.” Rankin v. McPherson, 483 U.S. 378, 390 , 107 S.Ct. 2891 , 97 L.Ed.2d 315 (1987). Employees — like Stinebaugh — who are in positions of “authority and public accountability” must generally exercise greater caution in speaking, since “the danger to [an] agency’s successful functioning” is greater when a leader or policymaker airs his opinions to the public. Id. at 390-91 , 107 S.Ct. 2891 . Stinebaugh was a Fire Captain when he spoke with the council members. According to the department’s standard operating guidelines, the Captain “is an important part of the department’s management team and is responsible for the overall direction, coordination, and evaluation of [his] crew.” Krites’ deposition testimony that the Captain “carries] out the organization, the plans, [and] the guidelines of the department” further underscores the Captain’s leadership role in day-to-day operations.

These responsibilities make clear that Stinebaugh served a leadership and policy-making role rather than a role like that in Rankin , where the employee “serve[d] no confidential, policymaking, or public contact role.” 483 U.S. at 390-91 , 107 S.Ct. 2891 . Stinebaugh’s position — which was only below the Fire Chief in the chain of command — imbued his comments with a disruptive potential that would not typically accompany the' comments of an employee serving in a clerical capacity. Stine-baugh’s position therefore diminished his speech interest and strengthened the City’s interest in regulating the manner in which Stinebaugh spoke. This distinguishes this case from cases like Pickering v. Board of Education, 391 U.S. 563 , 88 S.Ct. 1731 , 20 L.Ed.2d 811 (1968), which involved comments by a teacher who did not serve in an administrative capacity, and Rankin v. McPherson, 483 U.S. 378 , 107 S.Ct. 2891 , 97 L.Ed.2d 315 (1987), which involved comments by an employee whose job consisted of entering data into a computer.

*533 Also undercutting Stinebaugh’s claim is the fact that he could have easily expressed his concerns through internal channels. Doing so would have minimized disruption within the fire department at little cost to Stinebaugh. Government employees undoubtedly have an interest in questioning the wisdom of government expenditures. See Garcetti v. Ceballos, 547 U.S. 410, 425 , 126 S.Ct. 1951 , 164 L.Ed.2d 689 (2006); Pickering, 391 U.S. at 572 , 88 S.Ct. 1731 . An employee’s decision to comment on government spending does not, however, immunize his speech. This is because the balancing analysis requires courts to consider “the manner, time, and place of the employee’s expression” in addition to the subject of the speech. Rankin, 483 U.S. at 388 , 107 S.Ct. 2891 . In considering this factor, other circuits have noted that an employee’s failure to avail himself of less disruptive channels of communication before speaking to the public diminishes the protection that his speech enjoys. See, e.g., Deschenie v. Bd. of Educ., 473 F.3d 1271, 1281 (10th Cir.2007); Greer v. Amesqua, 212 F.3d 358, 371-72 (7th Cir.2000); Foster v. Ripley, 645 F.2d 1142, 1149 (D.C.Cir.1981).

Stinebaugh had several internal channels at his disposal. He could have, for example, followed the chain of command and met with Chief Krites, his immediate supervisor. Besides the intuitive logic of this course of action, this is implicitly required by the department’s guidelines, which provide for a “chain of command type structure” and require “[ejmployees ... to strictly adhere to the chain of command.” Stinebaugh could have also raised his concerns at the meeting in which Krites announced the proposal to buy the engine to all of the department’s employees. Likewise, Stinebaugh could have communicated his views at any of the monthly staff meetings at which Krites, Stinebaugh, and two other captains discussed the operations of the department. Finally, Stinebaugh’s beef with the City’s use of tax dollars was not the type of concern — such as, for instance, a suspicion about a superior’s drinking on the job where the drinking could endanger others — that might be more appropriately raised outside the chain of command. Therefore, although the failure to use internal channels is not a per se bar to First Amendment protection, this weighs against holding that Stinebaugh’s speech is protected.

The final consideration is that by circumventing Krites, Stinebaugh undermined the trust and harmony among colleagues that is especially important for firefighters. The Supreme Court has recognized the direct pertinence in Pickering balancing of “whether the statement impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.” Rankin, 483 U.S. at 388 , 107 S.Ct. 2891 (citing Pickering, 391 U.S. at 570-73 , 88 S.Ct. 1731 ); see also Williams v. Kentucky, 24 F.3d 1526, 1536 (6th Cir.1994).

The record makes clear that Stine-baugh’s private communications with the council members impaired harmony and trust within the department. For example, Krites asserted at his deposition that he considered Stinebaugh’s actions to be “backstabbing,” and “disrespectful [and disjloyal to the department.” Rains, the department’s Safety Service Director, testified that Stinebaugh “had circumvented the chain of command and that is a grievous thing in a paramilitary organization.” Tony Stinebaugh, Stinebaugh’s brother, recognized that “there was a stir [in the department] over things that had happened with the engine and Tom,” and that “things were brewing and ... it was prob *534 ably going to become an issue.” Several other firefighters, including Alan McClin-tock, Don Wright, and Zach Heinfeld, also revealed during an investigation of the department that they were upset about the communications or felt that Stinebaugh’s actions were wrong. These grumblings more than suffice to show that Stine-baugh’s comments negatively impacted the discipline and morale in the work place.

The Tenth Circuit’s persuasive analysis in Belcher v. City of McAlester, 324 F.3d 1203 (10th Cir.2003) is directly on point. In that case, a firefighter asked four members of the city council not to approve the purchase of a new fire engine. Id. at 1205 . Like Stinebaugh, Belcher did not raise his concerns about the purchase with his superiors, and like Stinebaugh, Belcher was disciplined for his speech. Id. at 1205-06 . In holding that Belcher’s speech was not protected, the court observed that Belcher could have easily voiced his concerns internally, the policies of the city and the fire department required Belcher to refrain from contacting city council members, and Belcher’s speech caused “actual disruption” among firefighters. Id. at 1208-09 .

The reasoning in Belcher is sound. Fire chiefs must be able to expect that the leaders of their department will be “team players.” The trust and harmony essential to the relationships among firefighters requires employers to have a means of reprimanding a captain who secretly circumvents the chain of command to criticize a proposal about the use of departmental resources. It makes no difference that the city in Belcher had an express policy of prohibiting employees from contacting council members and that the fire department had a rule prohibiting a firefighter’s unauthorized contact with a legislative body, because Stinebaugh’s communicar tions were subject to similar restrictions. Such a policy would be implicit in any close working arrangement between an administrator and his small group of immediate subordinates with whom he consults on policy.

In any event, as an employee, Stine-baugh was expected “to use the chain of command upward, downward, and laterally.” The department’s guidelines also required Stinebaugh, as a Captain, to be “involved in management, planning and problem solving activities for the department” and to “fully utilize the chain of command.” Even if the guidelines do not specifically forbid firefighters from talking with council members without prior approval, a 2001 letter from a former Fire Chief to Stinebaugh — which reprimanded Stinebaugh for talking to council members without the Chiefs approval — makes clear that this was the department’s policy. Like the restrictions in Belcher , the fire department’s policies served to channel communications about department affairs in a way that minimizes workplace disruption.

The district court should have entered summary judgment for the defendants.