11th Circuit Rejects Cobb County Firefighter’s First Amendment Claims

The 11th Circuit has ruled that a firefighter who was disciplined for calling an elected official to complain about apparatus being out-of-service, was not engaging in protected speech. Cobb County firefighter Scott Millspaugh filed suit last year claiming his “demotion” from Firefighter III to Firefighter II was retaliation for his having called County Commissioner Keli Gambrill’s office.

Millspaugh, who was serving as an aide to a battalion chief, called Gambrill’s office to speak to one of her assistants, Ryan Williams. He left a voicemail stating:

“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.”

After Millspaugh was demoted, he filed suit claiming the voicemail was protected speech under the First Amendment. He also sought protection as a whistleblower. The district court rejected the First Amendment claims, concluding (1) that because he was on duty the voicemail was in the performance of his duties and (2) because the officials who ordered the discipline were entitled to qualified immunity. The court rejected the whistleblower claims because he was not reporting the violation of a “law, rule or regulation.”

Millspaugh appealed the district court ruling to the 11th Circuit Court of Appeals arguing the First Amendment claims only. The 11th Circuit affirmed the district court. Quoting from the decision:

  • 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 clearly established First Amendment rights.
  • 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.
  • Generally, whether a plaintiff speaks as a citizen depends on whether the speech itself is ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.
  • Speech made pursuant to an employee’s job duties is not speech made as a citizen and is, therefore, not protected by the First Amendment.
  • 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.
  • Relevant, but nondispositive, factors include: the employee’s job description, whether the speech occurred at the workplace, and whether the speech concerned the subject matter of the employee’s job.
  • 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 citizen or an employee.
  • And, in analyzing the content, form, and context of his speech as revealed by the whole record, we conclude that Millspaugh spoke pursuant to his official duties and his speech owes its existence to his official responsibilities.
  • Accordingly, the district court did not err in determining that Millspaugh’s voicemail arose within the scope of his professional responsibilities and was not protected by the First Amendment.
  • 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 interest in the speech.
  • But even if Millspaugh’s voicemail [was made as a private citizen] the district court correctly determined that the Defendants’ interest in promoting the efficiency of fire suppression services outweighed Millspaugh’s interest in the speech.
  • 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.
  • As Millspaugh concedes, 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 protected 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.
  • Accordingly, the district court did not err in determining that the Individual Defendants were entitled to qualified immunity, and we need not proceed further.

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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