Case 1:13-cv-01663-RWS Document 24 Filed 02/04/14 Page 1 of 30
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
`
`CIVIL ACTION NO.
`1:13-CV-01663-RWS
`
`:::::::::::::::
`
`REX DUKE,
`
`Plaintiff,
`
`v.
`
`BOBBY HAMIL, both
`individually and in his official
`capacity as the Chief of Police of
`Clayton State University, and the
`BOARD OF REGENTS OF THE
`UNIVERSITY SYSTEM OF
`GEORGIA,
`
`Defendants.
`
`ORDER
`
`This case comes before the Court on Defendant Bobby Hamil’s Motion
`
`to Dismiss [11], Defendant Board of Regents of the University System of
`
`Georgia’s Motion to Dismiss [12], Defendant Bobby Hamil’s Motion to
`
`Dismiss Plaintiff’s Amended Complaint [18], and Defendant Board of Regents
`
`of the University System of Georgia’s Motion to Dismiss Plaintiff’s Amended
`
`Complaint [19]. After reviewing the record, the Court enters the following
`
`Order.
`
`AO 72A
`(Rev.8/82)
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ATLANTA DIVISION
`
`CIVIL ACTION NO.
`1:13-CV-01663-RWS
`
`:::::::::::::::
`
`REX DUKE,
`
`Plaintiff,
`
`v.
`
`BOBBY HAMIL, both
`individually and in his official
`capacity as the Chief of Police of
`Clayton State University, and the
`BOARD OF REGENTS OF THE
`UNIVERSITY SYSTEM OF
`GEORGIA,
`
`Defendants.
`
`ORDER
`
`This case comes before the Court on Defendant Bobby Hamil’s Motion
`
`to Dismiss [11], Defendant Board of Regents of the University System of
`
`Georgia’s Motion to Dismiss [12], Defendant Bobby Hamil’s Motion to
`
`Dismiss Plaintiff’s Amended Complaint [18], and Defendant Board of Regents
`
`of the University System of Georgia’s Motion to Dismiss Plaintiff’s Amended
`
`Complaint [19]. After reviewing the record, the Court enters the following
`
`Order.
`
`AO 72A
`(Rev.8/82)
`
`
`
`Case 1:13-cv-01663-RWS Document 24 Filed 02/04/14 Page 2 of 30
`
`Background
`
`This case arises out of Plaintiff’s demotion following his posting of an
`
`image of the Confederate flag accompanied by the phrase, “It’s time for the
`
`second revolution,” on the social media website Facebook. At the time of the
`
`November 2012 posting, Plaintiff Rex Duke was a police officer with over
`
`thirty years of experience. (Compl., Dkt. [1] ¶ 7.) In 2008 he achieved the rank
`
`of Captain and became the Deputy Chief of Police of the Clayton State
`
`University Police Department (“CSU Police Department” or “Department”),
`
`where had been employed since May 1, 2004. (Id. ¶¶ 7-8.) In his eight years at
`
`the Department, he received positive performance reviews, had no significant
`
`history of discipline, and even served as Interim Chief of Police for eleven
`
`months in 2007. (Id. ¶¶ 9-10.)
`
`On November 6, 2012, shortly after the conclusion of the 2012
`
`presidential election, Plaintiff posted the aforementioned image and statement
`
`on his personal Facebook page. (Id. ¶ 11.) Plaintiff intended only those with
`
`direct access to his page, such as close friends and family, to view the post.
`
`(Id.) He was not on duty at the time, and neither the post nor Plaintiff’s
`
`Facebook profile referenced his employment at the CSU Police Department or
`
`2
`
`AO 72A
`(Rev.8/82)
`
`
`
`Case 1:13-cv-01663-RWS Document 24 Filed 02/04/14 Page 3 of 30
`
`his job as a police officer. (Id. ¶ 13.) He expressed no grievances related to the
`
`Department’s policies or his colleagues; instead he claims that “the intention
`
`behind the post was to express his general dissatisfaction with Washington
`
`politicians.” (Id. ¶ 12.) At the time, the Department had no social media policy
`
`that would have prevented the post. (Id. ¶ 15.)
`
`Plaintiff took down the post within an hour, but during that period
`
`someone provided an image of the post to Atlanta television station WSB. (Id.
`
`¶¶ 16-17.) A reporter contacted Plaintiff and CSU officials, and the station
`
`subsequently ran an evening news story discussing both the Facebook post and
`
`Plaintiff’s position as Deputy Chief the CSU Police Department. (Id. ¶ 17.)
`
`The Department received anonymous complaints against Plaintiff, prompting
`
`CSU officials to commence an official investigation. (Id. ¶ 18.) In the ensuing
`
`official report, Defendant Bobby Hamil, the Chief of Police of the CSU Police
`
`Department, recommended Plaintiff’s demotion and stated that the post “was
`
`inappropriate for someone in [Plaintiff’s] position[,] . . . [and] officers . . .
`
`should not espouse political beliefs in public.” (Id. ¶¶ 20-22.) Accordingly, on
`
`January 7, 2013, Plaintiff was demoted from the rank of Captain to Detective
`
`and was stripped of his duties as Deputy Chief, resulting in a $15,000 cut in
`
`3
`
`AO 72A
`(Rev.8/82)
`
`
`
`Case 1:13-cv-01663-RWS Document 24 Filed 02/04/14 Page 4 of 30
`
`pay. (Id. ¶ 20.) Finally, on April 22, 2013, Defendant Hamil reassigned
`
`Plaintiff from his day-shift patrol duties to the less desirable morning shift,
`
`which is typically assigned to less experienced officers, “in contravention of
`
`well-established customs and practices that seniority is a major factor in
`
`determining shift assignments.” (Id. ¶ 25.)
`
`On May 16, 2013, Plaintiff filed this action against Defendant Hamil in
`
`his official and individual capacities and against the Board of Regents of the
`
`University System of Georgia (“Board of Regents”), the state entity that
`
`operates CSU and other public universities in Georgia, alleging that they
`
`demoted Plaintiff in violation of the First Amendment as a means “to punish
`
`[him] for privately advocating for his personal political beliefs, and sought to
`
`restrain his ability to privately advocate for those personal beliefs.” (Id. ¶ 28.)
`
`Plaintiff states that his speech caused no disruption to the CSU Police
`
`Department’s law enforcement purposes or the educational purposes of CSU as
`
`a whole. (Id. ¶ 29.) Furthermore, Plaintiff alleges that Defendants’ actions
`
`have had “a chilling effect upon expression in general” at the Department. (Id.
`
`¶ 30.) As a result of his demotion and reassignment, Plaintiff experienced
`
`4
`
`AO 72A
`(Rev.8/82)
`
`
`
`Case 1:13-cv-01663-RWS Document 24 Filed 02/04/14 Page 5 of 30
`
`significant emotional distress and financial hardship, which in turn impacted his
`
`health by exacerbating a pre-existing heart condition. (Id. ¶ 26.)
`
`Plaintiff later filed an Amended Complaint [14] stating that he seeks
`
`relief against Hamil pursuant to both 42 U.S.C. § 1983 and the doctrine of Ex
`
`parte Young. (Am. Compl., Dkt. [14] ¶ 33.) Plaintiff also alleged for the first
`
`time that Defendants were liable for his ultimate termination, but Plaintiff
`
`subsequently clarified that he voluntarily resigned from the CSU Police
`
`Department after filing this action, and that the use of the word “termination” in
`
`the Amended Complaint [14] was a scrivener’s error. (Pl.’s Br. in Opp’n, Dkt.
`
`[20] at 3-4.) Thus, the only allegations of retaliation in this case pertain to
`
`Plaintiff’s demotion and reassignment.
`
`Finally, Plaintiff seeks a declaratory judgment stating that his First
`
`Amendment rights were violated; an injunction reinstating him to his prior rank,
`
`title, and pay grade; an injunction barring infringement of Plaintiff’s or other
`
`employees’ First Amendment rights; an injunction requiring Defendants to
`
`implement new First Amendment policies and to provide training to all Board
`
`of Regents employees; and compensatory and punitive damages.
`
`5
`
`AO 72A
`(Rev.8/82)
`
`
`
`Case 1:13-cv-01663-RWS Document 24 Filed 02/04/14 Page 6 of 30
`
`Defendants Hamil and Board of Regents each filed motions to dismiss on
`
`June 20, 2013, and July 3, 2013, respectively, and again filed motions to
`
`dismiss on July 29, 2013, after Plaintiff filed his Amended Complaint [14].
`
`Discussion
`
`As a preliminary matter, in light of Plaintiff’s Amended Complaint [14],
`
`Defendant Hamil’s Motion to Dismiss [11] and Defendant Board of Regents’
`
`Motion to Dismiss [12] are DENIED as moot. However, the Court considers
`
`arguments from Defendants’ earlier motions that pertain to the motions to
`
`dismiss the Amended Complaint [14].
`
`I.
`
`Motion to Dismiss Legal Standard
`
`Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a
`
`“short and plain statement of the claim showing that the pleader is entitled to
`
`relief.” While this pleading standard does not require “detailed factual
`
`allegations,” “labels and conclusions” or “a formulaic recitation of the elements
`
`of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
`
`(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In order to
`
`withstand a motion to dismiss, “a complaint must contain sufficient factual
`
`matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
`
`6
`
`AO 72A
`(Rev.8/82)
`
`
`
`Case 1:13-cv-01663-RWS Document 24 Filed 02/04/14 Page 7 of 30
`
`Id. (quoting Twombly, 550 U.S. at 570). A complaint is plausible on its face
`
`when the plaintiff pleads factual content necessary for the court to draw the
`
`reasonable inference that the defendant is liable for the conduct alleged. Id.
`
`At the motion to dismiss stage, “all-well pleaded facts are accepted as
`
`true, and the reasonable inferences therefrom are construed in the light most
`
`favorable to the plaintiff.” Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1273
`
`n.1 (11th Cir. 1999). However, the same does not apply to legal conclusions set
`
`forth in the complaint. Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260
`
`(11th Cir. 2009) (citing Iqbal, 556 U.S. at 678). “Threadbare recitals of the
`
`elements of a cause of action, supported by mere conclusory statements, do not
`
`suffice.” Iqbal, 556 U.S. at 678. Furthermore, the court does not “accept as
`
`true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at
`
`555.
`
`II.
`
`Board of Regents of the University System of Georgia’s Motion to
`Dismiss
`
`Plaintiff alleges that under 42 U.S.C. § 1983, “the Board [of Regents] is
`
`liable for Hamil’s official conduct as a final policymaker for the Board with
`
`respect to the employment practices of the CSU Police Department and the
`
`7
`
`AO 72A
`(Rev.8/82)
`
`
`
`Case 1:13-cv-01663-RWS Document 24 Filed 02/04/14 Page 8 of 30
`
`employment and ultimate [demotion] of Duke.” (Compl., Dkt. [14] ¶ 33.) “In
`
`order to prevail in a civil rights action under section 1983, ‘a plaintiff must
`
`make a prima facie showing of two elements: (1) that the act or omission
`
`deprived plaintiff of a right, privilege or immunity secured by the Constitution
`
`or laws of the United States, and (2) that the act or omission was done by a
`
`person acting under color of law.’ ” Marshall Cnty. Bd. of Educ. v. Marshall
`
`Cnty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993) (quoting Bannum, Inc.
`
`v. City of Ft. Lauderdale, 901 F.2d 989, 996-97 (11th Cir. 1990)). In this
`
`regard, the U.S. Supreme Court has held that “neither a State nor its officials
`
`acting in their official capacities are ‘persons’ under § 1983.” Will v. Michigan
`
`Dep’t of State Police, 491 U.S. 58, 71 (1989). On the contrary, states and their
`
`officials are immune from suit under § 1983 pursuant to the Eleventh
`
`Amendment, which, absent congressional abrogation,1 “protects a State from
`
`being sued in federal court without the State’s consent.” Manders v. Lee, 338
`
`F.3d 1304, 1308 (11th Cir. 2003). As a state institution, the Board of Regents is
`
`1 Congress did not abrogate Eleventh Amendment immunity for claims brought
`pursuant to § 1983. Quern v. Jordan , 440 U.S. 332, 338 (1979).
`
`8
`
`AO 72A
`(Rev.8/82)
`
`
`
`Case 1:13-cv-01663-RWS Document 24 Filed 02/04/14 Page 9 of 30
`
`therefore immune from suit.2 Consequently, Defendant Board of Regent’s
`
`Motion to Dismiss [19] is GRANTED.
`
`III. Bobby Hamil’s Motion to Dismiss
`
`Plaintiff brings his § 1983 claim against Defendant Hamil in both his
`
`official and individual capacities. He also seeks prospective relief from Hamil
`
`in his official capacity under Ex parte Young.
`
`A.
`
`Official-Capacity Claim and Sovereign Immunity
`
`Under 42 U.S.C. § 1983,
`
`Every person who, under color of any statute, ordinance,
`regulation, custom, or usage, of any State or Territory or the
`District of Columbia, subjects, or causes to be subjected, any
`citizen of the United States or other person within the jurisdiction
`thereof to the deprivation of any rights, privileges, or immunities
`secured by the Constitution and laws, shall be liable to the party
`injured in an action at law, suit in equity, or other proper
`proceeding for redress . . . .
`
`2 Plaintiff does not dispute that the Board of Regents is an arm of the state, but
`he does contend that the Board of Regents should remain a defendant if Hamil is
`found liable in his official capacity under Ex parte Young. As discussed more fully in
`Part III.A, infra, Plaintiff’s Ex parte Young claim against Hamil fails. Moreover,
`holding an official liable for prospective relief under Ex parte Young does not justify
`retaining the state as a defendant. See P.R. Aqueduct & Sewer Auth. v. Metcalf &
`Eddy, Inc., 506 U.S. 139, 146 (1993) (stating that Ex parte Young “has no application
`in suits against the States and their agencies, which are barred regardless of the relief
`sought” (citing Cory v. White, 457 U.S. 85, 91 (1982))); Grizzle v. Kemp, 634 F.3d
`1314, 1319 (11th Cir. 2001) (explaining that a suit against a state official in his
`official capacity pursuant to Ex parte Young is not considered a suit against the state).
`
`9
`
`AO 72A
`(Rev.8/82)
`
`
`
`Case 1:13-cv-01663-RWS Document 24 Filed 02/04/14 Page 10 of 30
`
`As stated above, “[i]n order to prevail in a civil rights action under section
`
`1983, ‘a plaintiff must make a prima facie showing of two elements: (1) that the
`
`act or omission deprived plaintiff of a right, privilege or immunity secured by
`
`the Constitution or laws of the United States, and (2) that the act or omission
`
`was done by a person acting under color of law.’” Marshall Cnty. Bd. of Educ.,
`
`992 F.2d at 1174 (quoting Bannum, Inc., 901 F.2d at 996-97).
`
`Official-capacity suits “generally represent only another way of pleading
`
`an action against an entity of which an officer is an agent.” Monell v. Dep’t of
`
`Social Servs., 436 U.S. 658, 690 n.55 (1978). Thus, suits against government
`
`officials in their official capacities should be treated as suits against the
`
`government. Kentucky v. Graham, 473 U.S. 159, 166 n.11 (1985). In this case,
`
`Plaintiff’s official-capacity claim against Defendant Hamil as Chief of the CSU
`
`Police Department is in reality a claim against the Board of Regents, his
`
`employer. For the reasons discussed in Part II, supra, the Board of Regents is
`
`immune under the Eleventh Amendment as an agency of the State of Georgia.
`
`
`
`AO 72A
`(Rev.8/82)
`
`10
`
`
`
`Case 1:13-cv-01663-RWS Document 24 Filed 02/04/14 Page 11 of 30
`
`Nevertheless, Plaintiff argues that he is entitled to prospective injunctive
`
`relief against Hamil as a state official.3 Pursuant to Ex parte Young, “a suit
`
`alleging a violation of the federal constitution against a state official in his
`
`official capacity for injunctive relief on a prospective basis is not a suit against
`
`the state, and, accordingly, does not violate the Eleventh Amendment.” Grizzle
`
`v. Kemp, 634 F.3d 1314, 1319 (11th Cir. 2011). “[This] doctrine applies only
`
`to ongoing and continuous violations of federal law.” Summit Med. Assocs.,
`
`P.C. v. Pryor, 180 F.3d 1326, 1337 (11th Cir. 1999); see also Papasan v. Allain,
`
`478 U.S. 265, 277-78 (1986) (“Young has been focused on cases in which a
`
`violation of federal law by a state official is ongoing as opposed to cases in
`
`which federal law has been violated at one time or over a period of time in the
`
`past, as well as on cases in which the relief against the state official directly
`
`ends the violation of federal law as opposed to cases in which that relief is
`
`intended indirectly to encourage compliance with federal law through
`
`3 While Plaintiff’s Amended Complaint broadly states that “Defendant Hamil is
`liable, both personally and in his official capacity under Section 1983 and pursuant to
`the doctrine of Ex Parte Young,” (Dkt. [14] ¶ 33), Plaintiff has since clarified that his
`claim against Defendant Hamil in his official capacity is limited to prospective relief
`only. (See Pl.’s Br. in Opp’n, Dkt. [20] at 8 (“To the extent Plaintiff is seeking any
`non-prospective injunctive relief, he seeks that relief against Hamil in his personal, not
`official capacity.”)).
`
`11
`
`AO 72A
`(Rev.8/82)
`
`
`
`Case 1:13-cv-01663-RWS Document 24 Filed 02/04/14 Page 12 of 30
`
`deterrence . . . .”). However, Ex parte Young does not apply in two situations:
`
`“(1) it cannot be used to compel an executive official to undertake a
`
`discretionary task; and (2) it cannot be used if the suit is, in reality, against the
`
`state.” Seminole Tribe of Fla. v. Florida, 11 F.3d 1016, 1028 (11th Cir. 1994).
`
`As the Supreme Court has instructed, to determine if the Ex parte Young
`
`exception applies, “a court need only conduct a straightforward inquiry into
`
`whether [the] complaint alleges an ongoing violation of federal law and seeks
`
`relief properly characterized as prospective.” Verizon Md., Inc. v. Pub. Serv.
`
`Comm’n of Md., 535 U.S. 635, 645 (2002) (internal quotation marks omitted).
`
`According to Plaintiff, “the injunctive relief sought . . . merely seeks to
`
`compel Hamil, as the head of the CSU Police Department, to respect the First
`
`Amendment Rights of his employees.” (Pl.’s Br. in Opp’n, Dkt. [20] at 5.)
`
`Specifically, in his Amended Complaint [14], Plaintiff asks the Court to do the
`
`following:
`
`c)
`
`d)
`
`Issue a mandatory, preliminary and permanent injunction
`barring Defendants from continuing to take actions that
`infringe upon the First Amendment rights of [Plaintiff] or
`any other employee;
`
`Issue a mandatory, preliminary and permanent injunction
`requiring Defendants to implement a rigorous policy
`
`12
`
`AO 72A
`(Rev.8/82)
`
`
`
`Case 1:13-cv-01663-RWS Document 24 Filed 02/04/14 Page 13 of 30
`
`protecting employees’ First Amendment rights and to
`provide meaningful training to all employees of the Board of
`Regents of the University System of Georgia regarding
`employees’ rights to freedom of expression and freedom of
`speech, as well as ways to avoid First Amendment violations
`and retaliation . . . .”
`
`(Am. Compl., Dkt. [14] at 3.) Thus, Plaintiff’s requested relief is aimed at both
`
`redressing the alleged ongoing violation of Plaintiff’s rights and preventing
`
`future violations of other employees’ First Amendment rights. Both sets of
`
`relief are prospective, and putting aside the underlying constitutional question,
`
`the Court examines each to determine if the alleged constitutional deprivation it
`
`redresses is ongoing.
`
`1.
`
`Relief Redressing Plaintiff’s Rights
`
`Assuming, without deciding, that Plaintiff’s demotion was a violation of
`
`his First Amendment rights, the Court finds that the violation is not ongoing
`
`because Plaintiff has since resigned. Plaintiff does not allege that he was
`
`terminated in retaliation for his speech, and “employee resignations are
`
`presumed to be voluntary” absent evidence that the employee was unable “to
`
`exercise free choice.” Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th
`
`Cir. 1995). Plaintiff has made no allegations that his resignation was forced or
`
`13
`
`AO 72A
`(Rev.8/82)
`
`
`
`Case 1:13-cv-01663-RWS Document 24 Filed 02/04/14 Page 14 of 30
`
`coerced. Therefore, there is no continuing constitutional violation based on his
`
`demotion because he has voluntarily terminated his employment.
`
`2.
`
`Relief Aimed at Protecting All Employees
`
`Plaintiff also contends that there is an ongoing constitutional violation
`
`against all employees because “the official actions of Hamil, on behalf of CSU
`
`as the head of the CSU Police Department, reflect a willingness to punish
`
`employees for the exercise of their rights under the First Amendment.” (Pl.’s
`
`Br. in Opp’n, Dkt. [20] at 7.) Other than alleging that “Defendants’ actions . . .
`
`have a chilling effect upon expression in general,” (Compl., Dkt. [1] ¶ 30),
`
`Plaintiff alleges no specific facts to show that Defendant Hamil has been
`
`suppressing the speech of his employees. Simply alleging that Plaintiff’s
`
`demotion has chilled others’ First Amendment rights fails to show a plausible
`
`constitutional violation, let alone one that is ongoing, and thus Ex parte Young
`
`is inapplicable. Consequently, Plaintiff’s official-capacity claim fails.
`
`B.
`
`Individual-Capacity Claim and Qualified Immunity
`
`Next, the doctrine of qualified immunity protects government officials
`
`performing discretionary functions from being sued in their individual
`
`capacities. Wilson v. Layne, 526 U.S. 603, 609 (1999). Officials are shielded
`
`14
`
`AO 72A
`(Rev.8/82)
`
`
`
`Case 1:13-cv-01663-RWS Document 24 Filed 02/04/14 Page 15 of 30
`
`“insofar as their conduct does not violate clearly established statutory or
`
`constitutional rights of which a reasonable person would have known.” Harlow
`
`v. Fitzgerald, 457 U.S. 800, 818 (1982). “To receive qualified immunity, a
`
`government official first must prove that he was acting within his discretionary
`
`authority.” Cottone v. Jenne, 326 F.3d 1352, 1357 (11th Cir. 2003). Once the
`
`government official has satisfied this initial burden, the burden shifts to the
`
`plaintiff to show that the official is not entitled to qualified immunity. Id. at
`
`1358.
`
`As a preliminary matter, Defendant Hamil was acting in his discretionary
`
`authority as Chief of Police of the CSU Police Department. A government
`
`employee acts in his discretionary authority when “(a) performing a legitimate
`
`job-related function . . . (b) through means that were within his power to
`
`utilize.” Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004).
`
`Demoting and assigning Department employees to shifts are legitimate
`
`functions of running a police force and are well within the Chief of Police’s
`
`power.
`
`Next, whether an official is entitled to qualified immunity is determined
`
`by a two-step inquiry. One inquiry is “whether the plaintiff’s allegations, if
`
`15
`
`AO 72A
`(Rev.8/82)
`
`
`
`Case 1:13-cv-01663-RWS Document 24 Filed 02/04/14 Page 16 of 30
`
`true, establish a constitutional violation.” Barnett v. City of Florence, 409 F.
`
`App’x 266, 270 (11th Cir. 2010) (citing Hope v. Pelzer, 536 U.S. 730, 736
`
`(2002)). “If the facts, construed . . . in the light most favorable to the plaintiff,
`
`show that a constitutional right has been violated, another inquiry is whether the
`
`right violated was ‘clearly established.’ ” Id. (citing Saucier v. Katz, 533 U.S.
`
`194, 201 (2001)). “Both elements of this test must be present for an official to
`
`lose qualified immunity, and this two-pronged analysis may be done in
`
`whatever order is deemed most appropriate for the case.” Id. (citing Pearson v.
`
`Callahan, 555 U.S. 223, 241 (2009)). The Court first examines the substantive
`
`constitutional question.
`
`1.
`
`First Amendment Retaliation
`
`To state a claim for retaliation in violation of the First Amendment,
`
`Plaintiff, as a government employee, must show that his speech was
`
`constitutionally protected and that the speech was a substantial or motivating
`
`factor in Defendant’s decision to demote him. Boyce v. Andrew, 510 F.3d
`
`1333, 1343 n.12 (11th Cir. 2007). Whether Plaintiff has made this showing is
`
`governed by the four-part Pickering4 analysis, under which the Court must find
`
`4 Pickering v. Bd. of Educ., 391 U.S. 563 (1968).
`
`16
`
`AO 72A
`(Rev.8/82)
`
`
`
`Case 1:13-cv-01663-RWS Document 24 Filed 02/04/14 Page 17 of 30
`
`that (1) Plaintiff’s speech involved a matter of public concern; (2) Plaintiff’s
`
`interest in speaking outweighed the government’s legitimate interest in efficient
`
`public service; and (3) the speech played a substantial part in the government’s
`
`challenged employment decision. Cook v. Gwinnett Cnty. Sch. Dist., 414 F.3d
`
`1313, 1318 (11th Cir. 2005) (citing Bryson v. Waycross, 888 F.2d 1562, 1565-
`
`66 (11th Cir. 1989)). If the employee can make the above showing, the burden
`
`shifts to the government to show that (4) it would have made the same
`
`employment decision even in the absence of the protected speech. Id. The first
`
`two prongs of this test are questions of law while the latter two are questions of
`
`fact. Id. In light of the Court’s conclusions presented below, only the first two
`
`prongs of this test must be considered.
`
`a.
`
`Did Plaintiff speak as a citizen on a matter of public
`concern?
`
`The government as employer has a stronger interest in regulating the
`
`speech of its employees than in regulating the speech of the citizenry in general.
`
`Connick v. Myers, 461 U.S. 138, 140 (1983). Nonetheless, it is well-settled
`
`that “[a] public employee does not relinquish First Amendment rights to
`
`comment on matters of public interest by virtue of government employment.”
`
`17
`
`AO 72A
`(Rev.8/82)
`
`
`
`Case 1:13-cv-01663-RWS Document 24 Filed 02/04/14 Page 18 of 30
`
`Id. Accordingly, the First Amendment protects government employee speech if
`
`the employee speaks “as a citizen upon matters of public concern.” Id. at 147.
`
`If, on the other hand, the employee speaks “as an employee upon matters only
`
`of personal interest,” the speech is not entitled to constitutional protection. Id.
`
`As part of this analysis, the Court must decide both (1) if Plaintiff spoke as a
`
`citizen, and (2) whether his speech was a matter of public concern. See Boyce,
`
`510 F.3d at 1342.
`
`For the first inquiry, a court must examine “whether a government
`
`employee’s speech relates to his or her job as opposed to an issue of public
`
`concern.” Boyce, 510 F.3d at 1343. “The ‘controlling factor’ is whether the
`
`expressions are made as an employee fulfilling his responsibility to his
`
`employer.” Springer v. City of Atlanta, No. 1:05-CV-0713-GET, 2006 WL
`
`2246188 at *3 (N.D. Ga. Aug. 4, 2006) (citing Garcetti v. Ceballos, 547 U.S.
`
`410, 421 (2006)). Here, Plaintiff posted the image and statement on his
`
`personal Facebook page, which did not identify his employment with the CSU
`
`Police Department. Nor did the statement refer to any of the Department’s
`
`policies, practices, or employees. There is thus no indication that Plaintiff
`
`spoke pursuant to his official duties in any way. As a result, the Court
`
`18
`
`AO 72A
`(Rev.8/82)
`
`
`
`Case 1:13-cv-01663-RWS Document 24 Filed 02/04/14 Page 19 of 30
`
`concludes that Plaintiff spoke as a citizen, not as an employee of the CSU
`
`Police Department.
`
`Second, the Court decides if the speech was in fact a matter of public
`
`concern based on “the content, form, and context of the employee’s speech.”
`
`Bryson, 888 F.2d at 1565. In Connick v. Myers, the U.S. Supreme Court
`
`characterized a matter of public concern as that “upon which ‘free and open
`
`debate is vital to informed decision-making by the electorate.’ ” 461 U.S. at
`
`145 (quoting Pickering, 391 U.S. at 571-72). Speech involves a matter of
`
`public concern when it can be “fairly considered as relating to any matter of
`
`political, social, or other concern to the community.” Id. at 146. Defendant
`
`argues that the phrase “ ‘It’s time for the second revolution’ is not itself a matter
`
`of ‘legitimate’ public concern.” (Hamil’s Br. in Supp. of His Mot. to Dismiss,
`
`Dkt. [11-1] at 7). However, the Court finds that Plaintiff’s speech can be fairly
`
`considered to relate to matters of political concern to the community because a
`
`Confederate flag can communicate an array of messages, among them various
`
`political or historical points of view. Combine this symbol with a statement
`
`calling for a revolution right after an election, and it is plausible that Plaintiff
`
`was expressing his dissatisfaction with Washington politicians. Even if
`
`19
`
`AO 72A
`(Rev.8/82)
`
`
`
`Case 1:13-cv-01663-RWS Document 24 Filed 02/04/14 Page 20 of 30
`
`Plaintiff had intended to convey a more radical message by using the
`
`Confederate flag and the word revolution, that message would also relate to
`
`political and social concerns of the community regardless of how unpopular or
`
`controversial that point of view may be. Plaintiff’s speech was thus a matter of
`
`public concern because it expressed disapproval of elected officials, certainly a
`
`topic “upon which ‘free and open debate is vital to informed decision-making
`
`by the electorate.’ ” Connick, 461 U.S. at 145 (quoting Pickering, 391 U.S. at
`
`571-72). In that regard, the First Amendment protects his speech unless the
`
`government’s countervailing interests outweigh his interest in speaking.
`
`b.
`
`Did Plaintiff’s interest in speaking outweigh the CSU Police
`Department’s countervailing interests?
`
`Under the second prong of the Pickering analysis, the Court must weigh
`
`Plaintiff’s First Amendment interests against the interest of the CSU Police
`
`Department, “as an employer, in promoting the efficiency of the public services
`
`it performs through its employees.” 391 U.S. at 568. This balancing test
`
`reflects the fact that government employers must be given “wide latitude in
`
`managing their offices, without intrusive oversight by the judiciary in the name
`
`of the First Amendment,” Connick, 461 U.S. at 146, and must be permitted to
`
`20
`
`AO 72A
`(Rev.8/82)
`
`
`
`Case 1:13-cv-01663-RWS Document 24 Filed 02/04/14 Page 21 of 30
`
`“take action against employees who engage in speech that ‘may unreasonably
`
`disrupt the efficient conduct of government operations.’ ” Reid v. City of
`
`Atlanta, No. 1:08-CV-1846-JOF, 2010 WL 1138456 at *9 (N.D. Ga. Mar. 22,
`
`2010) (quoting Tindal v. Montgomery County Comm’n, 32 F.3d 1535, 1540
`
`(11th Cir. 1994)). The government’s interest in efficient public service is
`
`particularly acute in the context of police departments, which “have more
`
`specialized concerns than a normal government office.” Id. Indeed, the
`
`Supreme Court has recognized the “need for discipline[,] esprit de corps, and
`
`uniformity” within the police force. Kelley v. Johnson 425 U.S. 238, 246
`
`(1976). The Eleventh Circuit has likewise recognized the unique needs of
`
`police departments, noting, “Order and morale are critical to successful police
`
`work: a police department is a ‘paramilitary organization, with a need to secure
`
`discipline, mutual respect, trust and particular efficiency among the ranks due to
`
`its status as a quasi-military entity different from other public employers.’ ”
`
`Hansen v. Soldenwagner, 19 F.3d 573, 577 (11th Cir. 1994) (quoting Bryson v.
`
`City of Waycross, No. CV588-017, 1988 WL 428478 at *9 (S.D. Ga. Nov. 1,
`
`1988), aff’d, 888 F.2d 1562 (11th Cir. 1989)). Moreover, police departments
`
`21
`
`AO 72A
`(Rev.8/82)
`
`
`
`Case 1:13-cv-01663-RWS Document 24 Filed 02/04/14 Page 22 of 30
`
`have a particular interest in maintaining “a favorable reputation with the
`
`public.” Busby v. City of Orlando, 931 F.2d 764, 775 (11th Cir. 1991).
`
`Several factors must be considered in determining whether the
`
`government’s legitimate interest in efficient public service outweighs the
`
`government employee’s interest in protected freedom of speech. Specifically,
`
`courts must assess “(1) whether the speech at issue impedes the government’s
`
`ability to perform its duties efficiently, (2) the manner, time and place of the
`
`speech, and (3) the context within which the speech was made.” Martinez v.
`
`City of Opa-Locka, 971 F.2d 708, 712 (11th Cir. 1992) (quoting Bryson, 888
`
`F.2d at 1567) (internal quotation marks omitted).
`
`Plaintiff alleges that “Duke’s advocacy did not cause any disruption to
`
`the law enforcement purposes of the Clayton State University Police
`
`Department, nor the educational purposes of Clayton State University in
`
`general.” (Compl., Dkt. [1] ¶ 29.) Even so, Defendant Hamil had an interest in
`
`preventing the speech from impeding the Department’s functions. As the
`
`Supreme Court stated in Connick,
`
`When close working relationships are essential to fulfilling public
`responsibilities, a wide degree of deference to the employer’s
`judgment is appropriate. Furthermore, we do not see the necessity
`
`22
`
`AO 72A
`(Rev.8/82)
`
`
`
`Case 1:13-cv-01663-RWS Document 24 Filed 02/04/14 Page 23 of 30
`
`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.
`
`461 U.S. at 151-52.
`
`After all, while the Court acknowledges that Plaintiff intended to express
`
`his disapproval of Washington politicians, on its face his speech could convey a
`
`drastically different message with different implications. Many of these
`
`messages are controversial, divisive, and prejudicial to say the least. Because
`
`these potentially offensive messages came from the Department’s second-in-
`
`command, Hamil did not have to wait to see if the controversy affected the
`
`discipline, mutual respect, or trust among the officers Plaintiff supervised
`
`before addressing it. See Gresham v. City of Atlanta, No. 1:10-CV-1301-RWS,
`
`2011 WL 4601020 (N.D. Ga. Sept. 30, 2011) (“[T]he fact that Defendants have
`
`not come forward with specific evidence of workplace disruption is not fatal to
`
`their argument.”). Given Plaintiff’s supervisory responsibilities, such speech
`
`could undermine “loyalty, discipline, [and] good working relationships among
`
`the [Department’s] employees” if left unaddressed. Busby, 931 F.2d at 774.
`
`In addition to possible internal disruption, the public attention the speech
`
`received also implicated the Department’s reputation and the public’s trust.
`
`23
`
`AO 72A
`(Rev.8/82)
`
`
`
`Case 1:13-cv-01663-RWS Document 24 Filed
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
