Randolph Starling v. Board of County Comm'rs

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APR 6, 2010
JOHN LEY
CLERK
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 09-11168
________________________
D. C. Docket No. 08-80008-CV-DTKH
RANDOLPH STARLING,
Plaintiff-Appellant,
versus
BOARD OF COUNTY COMMISSIONERS,
PALM BEACH COUNTY,
KEN FISCHER,
in his official and individual capacity,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(April 6, 2010)
Before DUBINA, Chief Judge, KRAVITCH, Circuit Judge, and ALBRITTON,*
District Judge.
Honorable W. Harold Albritton III, United States District Judge for the Middle District*
of Alabama, sitting by designation.

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KRAVITCH, Circuit Judge:
The primary question in this appeal is whether Palm Beach County and one
of its Fire Department officers violated a firefighter’s First Amendment right to
intimate association when they demoted him for an extramarital affair with one of
his subordinates. We conclude that they did not violate the Constitution because
the County’s interest in discouraging extramarital association between supervisors
and subordinates is so critical to the effective functioning of the Fire Department
that it outweighs the firefighter’s interest in extramarital association with a
subordinate, even if we assume arguendo that the First Amendment protects
extramarital association as fundamental right.
I. Facts
Randolph Starling is a former firefighter in the Palm Beach County Fire
Rescue Department. In May 2005, when he was a “rescue captain,” he arranged to
have Carolyn Smith, another firefighter, transferred to his fire station as his
subordinate. Sometime during the next few months, Smith and Starling—then
married but separated from his wife—began an intimate relationship. Starling’s
wife filed for divorce in July, and he moved in to Smith’s house in October,
although his divorce did not become final until April, 2006. Starling and Smith’s
cohabitation was common knowledge among their friends and coworkers, and they
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married in June 2006.
According to Starling, soon after moving in with Smith, he learned that Ken
Fisher, his direct supervisor, had been using Smith’s home for extramarital trysts
with another married firefighter. When Smith told Starling that Fisher had once
solicited her (through the other firefighter) for a three-person sexual encounter,
Starling asked her to stop letting Fisher use her home. Starling alleges that this
angered Fisher, who threatened him with disciplinary action and told him to end
his relationship with Smith.
When Starling and Smith continued their association, Fisher allegedly began
saying offensive things about their relationship and following Smith on the job, in
an attempt to catch her doing something wrong. Starling requested transfers for
Smith and himself, but those requests were denied. He also complained to his
union representative. Starling claims that when Fisher learned of the union’s
involvement, he threatened to “see to it” that Starling would lose his “captain’s
bars.” Fisher disputes these allegations in their entirety and alleges that Starling’s
relationship with Smith was damaging the effectiveness of his battalion.
On January 11, 2006, Fisher issued an Employee Development Form (EDF)
stating that Starling’s “preoccupation” with Smith was “caus[ing] a disruption for
the station officer and for the crew” and urging Starling to “return [his]
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performance to its past level.” The EDF also stated that Starling had delivered a
package for Smith when he was supposed to be responding to a call, cancelled a
training session to spend time with her, and helped her at night with her reports
while he was on duty. Although the EDF was not designed for disciplinary
purposes, it warned Starling that his failure to prioritize “mak[ing] station rounds
and be[ing] more consistent with [his] daily routine” could “lead to initiation of a
special performance review or disciplinary action.” Starling responded to the EDF,
without denying any specific accusations, by complaining of the “hostile work
environment” Fisher had created for him and Smith.
Within ten days, Starling learned that he faced potential disciplinary action
for his conduct in three separate incidents during the previous year and a half.
Starling claimed that Fisher misrepresented the seriousness of these incidents to
punish him for continuing his relationship with Smith. Nevertheless, on February
13, Herman Brice, the County’s Fire Rescue Administrator and the only person
with the authority to discipline Department employees, demoted Starling from
captain to “firefighter/paramedic.” Starling accepted union representation and filed
a grievance, which Brice denied after a hearing at which Starling had union
representation. The union declined to pursue arbitration of the dispute—a decision
left to its discretion under the terms of the collective-bargaining agreement—on the
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basis that Starling’s claim lacked merit.
Starling sued Fisher and the County under 42 U.S.C. § 1983 for violating his
First Amendment right to intimate association. Fisher denied playing any role in
Starling’s demotion. Brice denied having any knowledge of Starling’s relationship
with Smith until after the demotion. With these denials, and arguing that Starling
had no First Amendment right to engage in an “adulterous” relationship with
Smith, the defendants moved for summary judgment.
Starling opposed the defendants’ motion, relying primarily on his mother’s
affidavit describing a conversation she had with Brice. During that conversation,
Brice allegedly said that Fisher had repeatedly complained about Starling’s
relationship with Smith. Brice also said that he “typically followed his staff on
disciplinary matters.” Starling also disputed the defendants’ assertion that the First
Amendment did not protect his right to intimate association with Smith.
The district court granted the defendants’ motion for summary judgment
after concluding that there was no genuine issue of material fact as to whether
Brice—who imposed the discipline—knew of Fisher’s allegedly improper motives.
In addition, the court ruled that Fisher was entitled to qualified immunity because
Starling’s First Amendment right to intimate association with Smith was not
clearly established. The court did not resolve whether the First Amendment
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protected Starling’s association with Smith. Starling appeals.
II. Discussion
We review the district court’s summary judgment order de novo. Shuford v.
Fid. Nat’l Prop. & Cas. Ins. Co., 508 F.3d 1337, 1341 (11th Cir. 2007). Summary
judgment is appropriate “if the pleadings, the discovery and disclosure materials on
file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(c).
Starling challenges the district court’s summary judgment order on several
grounds, but we conclude that, regardless of the merits of these arguments, neither
Fisher nor the County can be held liable for violating Starling’s alleged
constitutional rights. See Burton v. Tampa Hous. Auth., 271 F.3d 1274, 1277 (11th
Cir. 2001) (“A grant of summary judgment may be upheld on any basis supported
by the record.”). We reach this conclusion by applying the balancing test
developed to assess the constitutionality of burdens on constitutional rights in the
public-employment context from Pickering v. Board of Education, 391 U.S. 563
(1968). See Shahar v. Bowers, 114 F.3d 1097, 1103 (11th Cir. 1997) (en banc)1
The Pickering balancing test was initially developed to assess the constitutionality of1
burdens on free speech in the public-employment context. The test in the intimate-association
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(applying Pickering in the intimate-association context). “Pickering balancing, in
the public employment context, involves the weighing of the employee’s interest in
the exercise of a constitutional right against the employer’s interest in maintaining
an efficient workplace.” Id. at 1112 (Tjoflat, J., concurring specially).
In this case, we conclude that the County’s interest in discouraging intimate
association between supervisors and subordinates is so critical to the effective
functioning of its Fire Department that it outweighed Starling’s interest in his
relationship with Smith in the workplace. In reaching this conclusion, we do not
address whether the First Amendment protects intimate, extramarital association.2
Instead, we assume arguendo that Starling’s right to intimate, extramarital
association with Smith is fundamental. See, e.g., Lyng v. Nw. Indian Cemetery3
Protective Ass’n, 485 U.S. 439, 445 (1988) (“A fundamental and longstanding
context is identical, except the intimate association does not have to be of public concern. See
Hatcher v. Bd. of Pub. Educ., 809 F.2d 1546, 1558 (11th Cir. 1987). However, the test still
requires (1) an adverse employment action in which (2) protected association was a “substantial”
or “motivating” factor in the employer’s decision. Id. In this case, neither party disputes that
Starling’s demotion was an adverse employment action, and there is evidence in the record
suggesting that Starling’s relationship with Smith was a motivating factor in his demotion.
Thus, we do not reach the question whether the district court erred by concluding that a2
right to intimate, extramarital association was not clearly established under the First
Amendment.
Intimate association involves “choices to enter into and maintain certain intimate human3
relationships.” Roberts v. U. S. Jaycees, 468 U.S. 609, 617-18 (1984). The First Amendment
protects these choices to differing degrees against “undue intrusion by the State because of the
role of such relationships in safeguarding the individual freedom that is central to our
constitutional scheme.” Id.
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principle of judicial restraint requires that courts avoid reaching constitutional
questions in advance of the necessity of deciding them.”).
Our conclusion rests on our assessment of the County’s interest in
discouraging extramarital affairs between supervisors and subordinates in the Fire
Department. “[O]perational efficiency” is a “vital government interest.” United
States v. Nat’l Treasury Employees Union, 513 U.S. 454, 473. We therefore ask
whether Starling’s affair with his subordinate (1) “impair[ed] discipline by
superiors or harmony among co-workers,” (2) “ha[d] a detrimental impact on close
working relationships for which personal loyalty and confidence [were]
necessary,” or (3) “impede[d] the performance of the [employee’s] duties or
interfere[d] with the regular operation of the enterprise,” Rankin v. McPherson,
483 U.S. 378, 388 (1987). In analyzing these factors, “the manner, time, and place
of the employee’s expression are relevant, as is the context in which the dispute
arose.” Id. Furthermore, the more Starling’s demotion is necessary to the
“effective functioning” of the Fire Department, “the more the [demotion] becomes
justifiable, and thus the more likely it is that a court will find the [demotion]
constitutionally permissible by finding the employer’s interest to outweigh the
employee’s interest in the Pickering balance.” McCabe v. Sharrett, 12 F.3d 1558,
1570 (11th Cir. 1994).
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In the “quasi-military” context, which includes both fire departments and
police stations, see Anderson v. Burke County, 239 F.3d 1216, 1222 (11th Cir.
2001), we have afforded public employers greater latitude to burden an employee’s
rights, particularly when the exercise of that right impacts discipline, morale,
harmony, uniformity, and trust in the ranks. See Oladeinde v. City of Birmingham,
230 F.3d 1275, 1293 (11th Cir. 2000). For instance, we held that a police chief
could burden his secretary’s fundamental right to marry because her marriage to a
subordinate in the office could undermine her loyalty, particularly when she might
be working on matters that directly affected her husband. McCabe, 12 F.3d 1558.
Loyalty and confidentiality, we explained, are absolutely critical to the effective
functioning of a police department: “[T]he police chief’s office cannot function
effectively unless the police chief’s secretary is loyal to him and able to maintain
the confidentiality of the office.” Id. at 1572. Thus, even though there was no
evidence that the secretary’s marriage had actually caused a breach of loyalty or
confidentiality and the “likelihood of such a breach occurring may not have been
overwhelming,” her demotion was constitutionally permissible because any such
breach “would likely cause serious damage to office functioning.” Id. at 1573.
In this case, the County has a strong interest in regulating intimate
relationships between supervisors and their subordinates in the Fire Department.
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The Palm Beach County Operational Procedure “strongly discourages” romantic
relationships between supervisors and subordinates because there is always a
“potential for abuse of power” and “sexual harassment” in those relationships. The
County’s interest in discouraging such behavior is heightened in the Fire
Department, which has a special “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.” Anderson, 239 F.3d at 1222. For instance,
Starling’s battalion worked 24-hour shifts that required him and his subordinates to
sleep and work in close proximity. Intimate, extramarital relationships between
subordinates and supervisors in this environment can be particularly destructive to
the chain of command by weakening trust and discipline and threatening
harmonious interpersonal relationships.
The mere potential for this kind of disruption in the Fire Department would
likely justify a burden on a fundamental right to intimate association. See McCabe,
12 F.3d at 1573. This case, however, does not require such extrapolation: the
undisputed record evidence shows that Starling’s relationship with Smith was
damaging operational efficiency. First, the relationship was impairing internal
discipline in Starling’s battalion. For instance, the EDF expressly stated that
Starling’s special attention for Smith—including their late night association—was
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threatening the “harmony” of the shift. Second, the record also shows that Starling
was affording Smith special favoritism, behavior which can undermine personal
loyalty and confidence in impartial leadership. Fisher’s affidavit and the EDF
suggested that Starling had cancelled a training shift to work exclusively with
Smith. Third, the record also shows that Starling’s relationship with Smith
distracted him from his responsibilities and impeded his overall performance at
work. In particular, the EDF stated that Starling was failing to coordinate with
other Fire Rescue personnel to develop a better procedure for emergency medical
service reports because of his preoccupation with Smith.
Starling argues that the County could have promoted efficiency without
burdening his right by granting his requests to transfer Smith out of his battalion.
Starling’s relationship with Smith, however, had already damaged his battalion’s
effectiveness, and there is no guarantee that her transfer would have ended these
disruptions. Thus, this argument does not alter our conclusion that the County’s
interests in an efficient Fire Department outweighed Starling’s interest in
intimately associating with Smith. See Rankin, 483 U.S. at 309 (“[T]he very nature
. . . [of] the state interest element of the test focused on the effective functioning of
the public employer’s enterprise.”).
The district court’s order of summary judgment is therefore
AFFIRMED.
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