11th Circuit tosses Fla. man’s retaliation suit

Thursday, December 4, 2008

Public employees who defend their job performances in e-mails may have no First Amendment protection even if they discuss other important issues in the messages because in writing them, they are acting primarily as employees, not citizens. That appears to be one of the lessons from the recent federal appeals court decision in Burton v. City of Ormond Beach, Fla.

The case involved a claim by H. Alan Burton, the director of leisure services for Ormond Beach, that he was fired in retaliation for an e-mail he sent in response to a harsh e-mail from a city commissioner. City Commissioner Bill Partington’s e-mail to the city manager and others suggested that the city manager should fire Burton for poor job performance and that “a strong re-organization is in order.”

Burton responded to the e-mail on July 25, 2005, by criticizing the city’s organizational and management structure, the performance of the city manager and other issues related to his job. In his e-mail, Burton also accused the city manager of violating the Florida Sunshine Law or open-meetings law.

City officials fired Burton on Aug. 1, one week after he sent the e-mail response, stating that he was an “at-will” employee who could be terminated at any time. An “at-will” employee is one who is covered by the general doctrine of employment-at-will, which means that either employers or employees can terminate the working relationship for almost any reason (unless there is discrimination or a violation of public policy).

After his firing, Burton sued in federal court, contending that he was retaliated against because of his speech on matters of public concern or importance. The city filed a motion for summary judgment, contending that Burton’s First Amendment suit had no merit because he was speaking as an employee, not a citizen, when he sent his critical e-mail. This citizen-employee distinction is crucial and often determines the outcome in First Amendment public-employee cases since the U.S. Supreme Court’s 2006 decision in Garcetti v. Ceballos. In Garcetti, the Supreme Court ruled that public employees have no First Amendment protection when they speak in the course of their official job duties.

The federal trial court denied the city’s motion for summary judgment, ruling that there were factual questions about whether Burton spoke more as a citizen or employee when he sent his e-mail. Thus, the case proceeded to trial. During the trial, Burton testified that when he sent the e-mail, he was speaking more as a citizen than an employee.

However, during the middle of the trial, the court granted the city a directed verdict, concluding after hearing Burton’s evidence that he failed to show that he spoke as a citizen. Instead, the district court concluded that he spoke primarily as an employee when he sent the e-mail.

Burton then appealed to the 11th U.S. Circuit Court of Appeals, which affirmed the lower court’s decision in a unanimous three-judge, per curiam opinion issued on Nov. 25, 2008. The appeals court also reasoned that the e-mail was primarily employee speech, not citizen speech. “The form and context in which Burton responded shows that he sent the e-mail for only one reason: to defend what he perceived as Commissioner Partington’s attack on Burton’s job performance as Leisure Services Director,” the court wrote. “The thrust of Burton’s e-mail was that Burton had been unfairly criticized for the work that he had done in his job.”

As for Burton’s allegation of the city manager violating the state open-meetings law, the 11th Circuit said that charge “was not the impetus” for the e-mail. The court concluded that Burton “failed to produce sufficient evidence that he spoke as a ‘citizen’ and not a ‘public employee.’”

The court’s opinion stands for the principle that a reviewing court will examine the basic purpose or “impetus” behind a public employee’s expression. Even if an employee includes important issues on matters of public importance in his or her communication, that expression may well not survive the reach of the Garcetti decision.

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