Scott Millspaugh v. Randy Crider, et al.

[DO NOT PUBLISH]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 W ILSON, L UCK , and LAGOA , Circuit Judges.
L AGOA , 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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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.
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