Cobb County Prevails in First Amendment and Whistleblower Suit

A Georgia firefighter who was disciplined after contacting a county commissioner to voice concerns about apparatus being place out of service, has lost a lawsuit contesting the discipline on First Amendment and whistleblower grounds. Cobb County firefighter Scott Millspaugh filed suit last year claiming his “demotion” from Firefighter III to Firefighter II was retaliation for his having called Commissioner Keli Gambrill.

The suit alleged the phone call was made under the following circumstances:

  • On the morning of May 2, 2019, Plaintiff reported to work as a FFIII assigned to Battalion 4 In his capacity as FFIII, Plaintiff “was essentially a deputy to the Fourth Battalion Chief, John Graham.
  • As a de facto deputy to BC Graham, Plaintiff was tasked with “lead[ing] and coordinat[ing] daily work activities of assigned crew or co-workers…[and] assist[ing] with scheduling of staff…”
  • At around 7:00 a.m. on the morning of May 2, 2019, Plaintiff and BC Graham noted that several firefighters had “called out” of work unexpectedly while others were on duty but attending training.
  • In light of the firefighter call outs, BC Graham directed certain personnel to move from one location to another to address the needs of the respective stations. Plaintiff himself was moved to a different fire station, Station 24.
  • Sometime after arriving at Station 24, Plaintiff called the office of Cobb County Commissioner Keli Gambrill and left a voicemail for her assistant, Ryan Williams.
  • In that voicemail, Plaintiff stated: “Hey Ryan, this is Scott. If you can give me a call back at [Plaintiff’s cell phone number], I was wanting to know if you guys knew why there was five fire trucks not operational today in district one? Thank you very much.”
  • Before making the call, Plaintiff did not inform BC Graham or anyone else in his chain of command that he had planned on calling the Commissioner’s office.

Millspaugh’s voicemail was forwarded to Public Safety Director Randy Crider, leading to his ultimate “demotion.” Millspaugh filed suit contending his communication was protected by the First Amendment, and that the discipline violated the Georgia Whistleblower Act. The suit was originally brought in Cobb County Superior Court, but removed by to US District Court by the defendants due to the Constitutional claims.

In ruling in favor of Cobb County on the First Amendment claim, the court held:

  • As a threshold matter, a public employee’s speech is constitutionally protected only if that employee spoke (1) as a citizen and (2) on a matter of public concern.  Unless both requirements are satisfied, the claim fails.
  • Defendants have conceded that Plaintiff’s speech constitutes a “matter of public concern.”
  • The question, then, is whether Plaintiff “spoke as a citizen” when he called the County Commissioner’s Office and left the voicemail at issue.
  • In considering whether a plaintiff’s speech was made in his capacity as a citizen, rather than as a public employee, the proper inquiry is a practical one that focuses on “whether the speech at issue ‘owes its existence to’ the employee’s professional responsibilities.”
  • Here, Plaintiff called Commissioner Gambrill’s office while on duty at his workplace.
  • He called within hours of discussing general staffing difficulties with BC Graham.
  • Furthermore, the record suggests that the call was made in direct response to information Plaintiff acquired while performing one of his ordinary duties as FFIII—monitoring the digital status board to assist BC Graham with staffing the fire stations in Battalion 4.
  • While none alone are dispositive, each of these facts supports a finding that Plaintiff was speaking “pursuant to his official duties,” rather than as a citizen.
  • Plaintiff attempts to artificially distinguish his official responsibilities from his inquiry into the availability of fully staffed firetrucks in District One by pointing out that he lacked authority to increase personnel and by emphasizing that his authority was limited to the inter-battalion assignment of existing personnel.
  • Plaintiff’s attempt to remedy long-term staffing shortages is an issue that directly interfered with Plaintiff’s ordinary duties of overseeing day-to-day staffing, which only bolsters a finding that the voicemail was left in furtherance of those duties.
  • Furthermore, the record supports the conclusion that the Plaintiff’s speech involved the subject matter of his job because Plaintiff admits that “[h]e contacted his commissioner after he and Graham had extensively discussed the staffing shortages internally through the chain of command prior to May 2, 2019 without success.”
  • Because the Court finds that Plaintiff’s speech was made in furtherance of his official duties, Plaintiff’s speech is not entitled to First Amendment protection and his retaliation claim must fail.

As for the whistleblower allegations:

  • The four elements of a prima face case of retaliation under the Whistleblower Act are as follows: (1) the employer is a public employer; (2) the employee disclosed a violation of or noncompliance with a law, rule, or regulation to a supervisor or government agency, (3) the employee experienced retaliation, and (4) there is a causal relation between the disclosure and the adverse employment decision.
  • However, because Plaintiff fails to establish the second element of a prima facie case of retaliation, his claim must fail.
  • Plaintiff did not disclose a “violation of or noncompliance with a law, rule, or regulation” to Commissioner Gambrill.
  • Because Plaintiff is unable to establish the second element of a prima facie retaliation claim under the Whistleblower Act, this Court need not address elements three and four, and Defendant Cobb County is entitled to summary judgment on Count II.

Here is a copy of the decision:

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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