Opinion
CIVIL ACTION FILE NO. 1:22-CV-2313-MHC
2023-07-06
Rhonda MOORE, Plaintiff, v. CITY OF ROSWELL, GEORGIA, and Gary Palmer, individually and in his official capacity only as City Administrator of Roswell, Georgia, Defendants.
Regan E. Keebaugh, Jake Knanishu, Radford & Keebaugh, LLC, Decatur, GA, for Plaintiff. Jacob T. McClendon, Michael McDonnell Hill, Freeman Mathis & Gary, LLP, Atlanta, GA, for Defendants City of Roswell, Georgia.
Regan E. Keebaugh, Jake Knanishu, Radford & Keebaugh, LLC, Decatur, GA, for Plaintiff. Jacob T. McClendon, Michael McDonnell Hill, Freeman Mathis & Gary, LLP, Atlanta, GA, for Defendants City of Roswell, Georgia. ORDER MARK H. COHEN, United States District Judge
This case comes before this Court on Defendants' Motion to Dismiss Amended Complaint ("Defs.' Mot. to Dismiss") [Doc. 16]. I. BACKGROUND
Because this case is before the Court on a motion to dismiss, the facts are presented as alleged in the First Amended Complaint ("Am. Compl.") [Doc. 12]. See Silberman v. Miami Dade Transit, 927 F.3d 1123, 1128 (11th Cir. 2019) (citation omitted).
Plaintiff Rhonda Moore ("Moore") was employed by the City of Roswell Police Department ("RPD"), where she held the position of Senior Communications Officer at the time of the incident in this case. Am. Compl. ¶ 7; Formal Investigation Report [Doc. 12-2] at 1, 7. On or about June 11, 2020, Moore shared two images on her personal Facebook page. Am. Compl. ¶ 8. The first post contained the caption, "If this symbol represents racism in America . . ." followed by an image of the Confederate flag, followed by the caption "SO DO THESE[,]" followed by a number of logos of organizations such as the NAACP, the Black Entertainment Television network, the Democratic Party, and a flag labeled "Black History Month." Facebook Posts [Doc. 1-1] at 2. The second post contains an image of a street that has been painted with the phrase "Black Lives Matter[,]" and has the caption, "ONLY IN AMERICA CAN AN ETHNIC GROUP HAVE BLACK AWARENESS MONTH, A BLACK HOLIDAY, BLACK ONLY COLLEGES, BLACK ONLY DATING SITES, BLACK ONLY BARS AND CLUBS . . . AND TURN AROUND AND CALL EVERYONE ELSE RACIST." Id., at 3.
"[D]ocuments attached to a complaint or incorporated in the complaint by reference can generally be considered by a federal court in ruling on a motion to dismiss under Rule 12(b)(6)." Saunders v. Duke, 766 F.3d 1262, 1270 (11th Cir. 2014); see also FED. R. CIV. P. 10(c) ("A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes."). Moore attaches to her Amended Complaint the Formal Investigation Report, the two Facebook posts that were the subject of the adverse employment action, and the relevant policies under which she was eventually terminated, all of which can be considered by this Court for purposes of resolving Defendants' Motion to Dismiss.
According to the Formal Investigation Report, on June 12, 2020, RPD's Communications Officer Akira Cooke ("Cooke") received from a former RPD communications officer the two Facebook posts that had been shared by Moore. Formal Investigation Report at 2, 4. Cooke showed the screen shots to RPD Communications Officer Kenya Brooks ("Brooks"), and at the end of their shifts they spoke with RPD Communications Officer Amber Darby ("Darby") about the posts, and Darby said she would speak to RPD's 911 Director Melissa Alterio ("Alterio") about them. Id. On June 15, 2020, Alterio informed Charles Greco, Captain of the RPD Office of Professional Standards, of Moore's shared Facebook posts, which began a formal investigation. Id. at 2.
After RPD learned about the Facebook posts, Moore was placed on administrative leave with pay on June 16, 2020. Am. Compl. ¶ 9. Interviews were conducted with Cooke and Darby by the RPD Office of Professional Standards on June 17, 2020. Formal Investigation Report at 4. Cooke told the investigator that she thought that Moore's posts were insensitive, her feelings were hurt, and she was "offended" and "in shock" that Moore would post these matters, and was not aware of Moore making other similar comments or showing bias. Id. at 4-5. Darby expressed surprise at Moore's posts and that she did not recall any other comments Moore made about racism, although she noted that Moore spoke with an "undertone" at times, but was unable to provide any examples of any racist comments Moore has made. Id. at 5. Brooks was interviewed on June 23, 2020, said she viewed Moore as a friend but, after seeing the posts, felt conflicted and surprised that Moore shared the posts which she found "unsettling." Id.
On June 24, 2020, Moore was interviewed and admitted that she shared the post with the Confederate flag on Facebook but did not recall sharing the second post, although she may have "liked" it. Id.
She said that this post did fit into her beliefs and thoughts. She said she believes the comment in the "Black Lives Matter" picture is "true". She expanded on her thoughts by saying that if whites were to have their own scholarships or colleges; they would be referred to as racists. She made the comment, "we can't say white pride or whatever you want to call it because we could be deemed as racist".Id. at 5-6. Moore alleges that her posts were made to her private Facebook page, did not identify her as an employee of RPD, produced no internal disruption in her office, and did not affect her ability to get along with her co-workers. Am. Compl. ¶¶ 27-31. Moore stated in her interview that the Facebook posts she shared were her thoughts and beliefs. Formal Investigative Report at 6.
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Moore said that the shares were her thoughts and beliefs. She said that the "rebel" flag is not racist and it is a symbol of southern heritage. She did admit that she knows that the confederate flag is seen as a racist symbol but did not take that into consideration when sharing the post. She said that she did not take it into consideration because she posted it on her "private" Facebook page. She stated she did not have any intention on offending anybody when she shared the posts and she did not mean any harm in sharing those posts.
The Investigative Report found that the shared postings violated the following policies: City of Roswell Human Resource ("HR") Policy § 2.19.4 (Employee Personal Social Media Use) [Doc. 12-3 at 43-45]; and Roswell Police Department Policy §§ 45.2 (Department Internet/Social Media Policy) [Doc. 12-4 at 2-4], and 16.82 (Conduct Unbecoming - On/Off Duty Conduct). Formal Investigation Report at 7-8. The applicable policies, in relevant part, state as follows:
City of Roswell HR Policy
2.19 Social Media Policy
2.19.4 Employee Personal Social Media Use
It is essential for every employee of the City of Roswell to recognize that the proper functioning of any government agency relies upon the public's confidence and trust in the individual employees and the City of Roswell to carry out the public function. Therefore, any matter which brings individual employees or the City of Roswell into disrepute has the corresponding effect of reducing public confidence and trust in the City, thus, impeding the ability to work with and serve the public.
Professionalism is the most significant factor in high level performance which in turn builds public confidence and trust. Employees have the right to use personal/social networking pages or sites; however, as public employees of the City of Roswell, they are held to a
higher standard than the general public with regard to standards of conduct and ethics.
The policy of the City of Roswell is to maintain a level of professionalism in both on-duty and off-duty conduct that fulfills the mission of the City. Any publication, through any medium which is potentially adverse to the operation, reputation or efficiency of the City of Roswell will be deemed a violation of this policy. When considering if an employee's social media post is potentially adverse to the City, the City will consider the following factors (but not at the exclusion of other factors):
• Is the speech made pursuant to the employee's official duties;
• Is the speech is a matter of public concern;
• Is the City's interests, as an employer, in promoting the efficiency of the public service it renders sufficient to outweigh the employee's speech interests;
• Is the speech a motivating factor in an adverse employment action; and
• Would the City have reached the same employment decision based on the absence of the speech.
The Internet, blogs, Twitter, social networking sites and any other medium of electronic communication will not be used in a manner which is detrimental to the mission and function of the City of Roswell.
The following is a list of the types of communication medium this policy is addressing. The list provides examples but is not limited to:
• Social networking sites such as: Facebook, My Space, MyLOL, BlackPlanet, Four Square . . . .
Roswell Police Department Policies
16.82 Conduct Unbecoming—On/Off Duty Conduct
Engaging in conduct on or off duty which adversely affects the efficiency of the Department, and has a tendency to destroy public respect for the employee or the Department, or destroys confidence in the operation of the City service is conduct unbecoming and is prohibited.
45.2 Department Internet/Social Media Policy
A. DEPARTMENT RIGHTS AND RESPONSIBILITIES
1. The unique responsibilities and public trust afforded employees of the Roswell Police Department require that the use of good judgment, decency, and common sense in professional and personal public actions that reflect on the Department. The Department is responsible for establishing standards of conduct and for the oversight of such actions.
2. This responsibility extends to any employee participation in Internet postings and networking where individuals identify themselves as Department employees either overtly (by voice or in print) or covertly (through photographs or videos depicting individuals in uniform, in Department vehicles, etc.). Examples of such forums include but are not limited to personal web pages, social networking cites and chat rooms, web logs (blogs) and dating services. City and Department sponsored forums are exempt.
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B. RESTRICTIONS
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3. Employees will not identify themselves directly or indirectly as an employee of the Roswell Police Department
on any personal webpage, blog, or social networking site without prior Departmental approval.Formal Investigation Report at 8; City of Roswell Human Resources Policies and Procedures [Doc. 12-3] at 42-3.
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C. LIMITATIONS
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2. Employees shall not post any material on the Internet that brings discredit to, or may adversely affect the efficiency, professionalism, or integrity of the Department.
Based on these findings, Roswell Police Chief James Conroy demoted Moore from Senior Communications Officer to Communications Officer on July 16, 2020. Am. Compl. ¶ 18. Following her demotion, Moore returned to work from administrative leave on or about July 16, 2020. Id. ¶ 19. Moore appealed her demotion to the City of Roswell's Director of Human Resources, who upheld the demotion. Id. ¶¶ 21-22. Moore next appealed her demotion to Defendant Gary Palmer ("Palmer"), the former Roswell City Administrator, who decided to terminate Moore's employment effective September 11, 2020. Id. ¶¶ 6, 23-24.
Moore's Amended Complaint is brought under 42 U.S.C. § 1983, and raises two claims: a claim against the City of Roswell ("the City") and Palmer in his official capacity, alleging that she was wrongfully terminated in violation of her right to free speech under the First Amendment (Count 1), and a claim against the City and Palmer in his official and individual capacities, alleging that the implementation and enforcement of "overbroad speech restrictions" in City of Roswell HR Policy § 2.19.4 and RPD Policy § 45.2 violates the First Amendment (Count 2). Id. ¶¶ 34-47. Moore requests back pay and reinstatement, or front pay if reinstatement is not possible, as well as damages for pain and suffering, punitive damages, and attorney's fees and costs of litigation. Id. at 10. Moore also seeks an order finding the challenged policies unconstitutional and requiring them to be redrafted to comply with the First Amendment. Id. at 9-10.
The Amended Complaint does not challenge the constitutionality of RPD Policy § 16.82, which was a separate ground for Moore's termination.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Under Federal Rule of Civil Procedure 12(b)(6), a claim will be dismissed for failure to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Supreme Court has explained this standard as follows:
A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully.Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citation omitted). Thus, a claim will survive a motion to dismiss only if the factual allegations in the pleading are "enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 127 S.Ct. 1955.
At the motion to dismiss stage, the court accepts all well-pleaded facts in the Plaintiffs' Complaint as true, as well as all reasonable inferences drawn from those facts. McGinley v. Houston, 361 F.3d 1328, 1330 (11th Cir. 2004); Lotierzo v. Woman's World Med. Ctr., Inc., 278 F.3d 1180, 1182 (11th Cir. 2002). Not only must the court accept the well-pleaded allegations as true, but these allegations must also be construed in the light most favorable to the pleader. Powell v. Thomas, 643 F.3d 1300, 1302 (11th Cir. 2011). However, the court need not accept legal conclusions, nor must it accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Thus, evaluation of a motion to dismiss requires the court to assume the veracity of well-pleaded factual allegations and "determine whether they plausibly give rise to an entitlement to relief." Id. at 679, 129 S.Ct. 1937.
III. DISCUSSION
A. First Amendment Wrongful Termination Claim (Count 1)
1. Moore Fails to State a Valid Claim Against Defendants for Wrongful Termination in Violation of the First Amendment.
"It is well established that section 1983 itself creates no substantive rights; it merely provides a remedy for deprivations of federal rights established elsewhere." Wideman v. Shallowford Cmty. Hosp., Inc., 826 F.2d 1030, 1032 (11th Cir. 1987) (citing City of Okla. City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)). To sustain a cause of action based on section 1983, a litigant must establish two elements: (1) that she suffered a deprivation of a right, privilege or immunity protected by the U.S. Constitution or federal law, and (2) that the act or omission causing the deprivation was committed by a person acting under color of state law. Arrington v. Cobb Cnty., 139 F.3d 865, 872 (11th Cir. 1998); Emory v. Peeler, 756 F.2d 1547, 1554 (11th Cir. 1985). "[S]ection 1983 imposes liability only 'for violations of rights protected by the Constitution, not for violations of duties of care arising out of tort law.' " Wideman, 826 F.2d at 1032 (quoting Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). Accordingly, "[i]n any § 1983 action, a court must determine 'whether the Plaintiff has been deprived of a right secured by the Constitution and laws of the United States.' " Glenn v. Brumby, 663 F.3d 1312, 1315 (11th Cir. 2011) (quoting Baker, 443 U.S. at 140, 99 S.Ct. 2689). "Absent the existence of an underlying constitutional right, no section 1983 claim will lie." Wideman, 826 F.2d at 1032.
In her free speech wrongful termination claim, Moore asserts that her private Facebook posts were constitutionally protected public speech on a matter of public concern and that Defendants violated the First Amendment by demoting her and terminating her employment based upon those posts. Am, Compl. ¶¶ 36-37. Defendants contend that this claim should be dismissed because (1) Moore's Facebook posts were not speech on a matter of public concern, and (2) any interest that Moore has in making her Facebook posts is outweighed by the City's interest in the efficient and effective operation of its police department. Defs.' Mot. to Dismiss at 7-16. In response, Moore argues that her Facebook posts "pertain[ ] to a subject of legitimate news interest—namely, affirmative action," which is a matter of public concern, and that the posts did nothing to impede or disrupt Defendants' interest in providing efficient or effective law enforcement services. Pl.'s Br. in Opp'n to Defs.' Mot. to Dismiss ("Pl.'s Resp.") [Doc. 20] at 6-17.
A public employer may not terminate a public employee in retaliation for speech protected by the First Amendment. Alves v. Bd. of Regents of the Univ. Sys. of Ga., 804 F.3d 1149, 1159 (11th Cir. 2015) (citing Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir. 1989)). Although a citizen "must accept certain limitations on her freedom" upon entering government service, id. (quoting Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)) (internal punctuation omitted), she does not "relinquish the First Amendment rights she would otherwise enjoy as a citizen to comment on matters of public interest." Id. (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)) (internal punctuation omitted). The goal is to "arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. 1731.
The Supreme Court employs a four-part test, based on Pickering and its progeny, to determine whether a public employee states a claim for retaliation in violation of the First Amendment. Cook v. Gwinnett Cnty. Sch. Dist., 414 F.3d 1313, 1318 (11th Cir. 2005). The employee must first show that she spoke "as a citizen on a matter of public concern." Garcetti, 547 U.S. at 418, 126 S.Ct. 1951. If she does so, the Court then weighs her First Amendment interest against the interest of the governmental employer "in promoting the efficiency of the public services it performs through its employees." Pickering, 391 U.S. at 568, 88 S.Ct. 1731. Both of these first two steps are questions of law. Cook, 414 F.3d at 1318. If the employee's interest outweighs the government's interest, a factfinder must determine whether the employee's speech played a substantial part in the government's decision to discharge the employee and whether the government would have reached the same decision absent the protected speech. Id.
a. Did Moore's Speech Involve a Matter of Public Concern?
The government as employer has a stronger interest in regulating the speech of its employees than in regulating the speech of the citizenry in general. Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). Nevertheless, "[a] public employee does not relinquish First Amendment rights to comment on matters of public interest by virtue of government employment." Id. (citing Pickering). The First Amendment protects government employee speech if the employee speaks "as a citizen upon matters of public concern." Id. at 147, 103 S.Ct. 1684. However, if the employee speaks "as an employee upon matters only of personal interest," the speech is not constitutionally protected. Id. Therefore, the Court must decide (1) if Plaintiff spoke as a citizen, and (2) whether her speech was a matter of public concern. Boyce v. Andrew, 510 F.3d 1333, 1342 (11th Cir. 2007) (citing Connick and Pickering).
For the first inquiry, the Court must examine whether Moore was speaking within the scope of her official duties as RPD Senior Communications Officer or as a citizen. Id. at 1343. "The 'controlling factor' is whether the expressions are made as an employee fulfilling his responsibility to his employer." Springer v. City of Atlanta, No. 1:05-CV-0713-GET, 2006 WL 2246188, at *3 (N.D. Ga. Aug. 4, 2006) (citing Garcetti, 547 U.S. at 421, 126 S.Ct. 1951). Here, Moore shared the two Facebook posts on her private Facebook page, and there is no evidence before the Court that she identified herself as an employee of the RPD or took any other action at her place of employment in conjunction with that private activity. Indeed, Defendants do not contend that Moore's sharing of the Facebook posts were made pursuant to her official duties in any manner. The Court finds that the facts as set forth in the Amended Complaint, which must be accepted as true upon consideration of Defendants' Motion to Dismiss, show that Moore spoke as a citizen, not as an employee of the RPD.
Next, in making the public concern determination, the Court examines " 'the content, form, and context' of the speech, 'as revealed by the whole record.' " Carter v. City of Melbourne, 731 F.3d 1161, 1168 (11th Cir. 2013) (quoting Connick, 461 U.S. at 147-48, 103 S.Ct. 1684). A public employee's speech involves a matter of public concern if it can "be fairly considered as relating to any matter of political, social, or other concern to the community." Cook, 414 F.3d at 1319 (quoting Connick, 461 U.S. at 146, 103 S.Ct. 1684). Public concern "is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication." City of San Diego v. Roe, 543 U.S. 77, 83-84, 125 S.Ct. 521, 160 L.Ed.2d 410 (2004). However, when the purpose of the speech is to further the speaker's own private interest, as opposed to raising a matter of public concern, there is no constitutional protection. Morgan v. Ford, 6 F.3d 750, 754 (11th Cir. 1993).
Moore asserts that the Facebook posts she shared concern affirmative action, which is a matter of public concern, and that "[t]he posts do not lament a specific instance of Ms. Moore's own exclusion from some event or service because of her race. Rather, they only comment on affirmative action as a whole, positing that it [is] a kind of, rather than cure for, racial oppression." Pl.'s Resp. at 9-10. Although this Court agrees that, in the abstract, the issue of affirmative action would be a matter of public concern, see Meyers v. City of Cincinnati, 934 F.2d 726, 730 (6th Cir. 1991), nothing in the two Facebook posts shared by Moore involved a commentary on affirmative action. The first post argued that if the Confederate flag is perceived as racist, then other symbols which are associated with Black Americans are also symbols of racism. The second post was a critique of Black Americans as "an ethnic group" who use Black-themed expressions and monikers such as "Black Lives Matter," "Black Awareness Month," and "Black Only Dating Sites" while they call others "racist." The posts had nothing to do with the public policy of affirmative action but a personal critique of purported racism in actions taken by Black Americans.
In Lawrenz v. James, 852 F. Supp. 986 (M.D. Fla. 1994), aff'd, 46 F.3d 70 (11th Cir. 1995), the plaintiff was a correctional officer who attended an outdoor barbecue and wore a t-shirt that contained a swastika and the words "White Power." Id. at 989. The officers at the barbecue criticized the department's affirmative action program and, after another officer fired off an AK-47 rifle into the air, he was arrested, and the plaintiff explained to the arresting office that they "were wearing the White Power t-shirts to commemorate Martin Luther King's Day." Id. The plaintiff was terminated from his employment because of his wearing the t-shirt, and the plaintiff sued, contending that "his wearing of the White Power t-shirt was symbolic speech entitled to First Amendment protection." Id. at 989, 991. The district court disagreed.
With regard to Plaintiff's symbolic expression, the issue is not whether wearing the White Power t-shirt is entitled to First Amendment protection in the abstract. Rather, the critical issue is whether Plaintiff's expression was a
matter of public concern. The Court holds that under the test established in Connick, Plaintiff's beliefs relating to the swastika and the strength or power of white people are purely matters of personal interest, not matters of public concern.Lawrenz v. James, 852 F. Supp. at 992 (citations omitted).
Similarly, in this case, Moore's sharing of posts that allege racism on behalf of Black Americans relate to a matter of her personal interest as opposed to any matter of public concern. The fact that Moore's shared Facebook posts did not involve a matter of public concern is also supported by her own statements during RPD's investigation, when she stated that the Facebook posts she shared fit her own beliefs and that "we can't say white pride or whatever you want to call it because we could be deemed as racist." Formal Investigation Report at 5-6. "Courts have been particularly skeptical in cases where plaintiffs have sought to justify patently hateful and inflammatory speech in terms of 'public concern.' " Pappas v. Giuliani, 118 F. Supp. 2d 433, 444-46 (S.D.N.Y. 2000) (citing cases and concluding that the plaintiff's racist mailings in response to solicitations were not speech related to matters of public concern "including race, taxation, religion and historical events such as the Holocaust," and any disciplinary action taken based on those mailings did not violate the plaintiff's First Amendment rights); see also Maggio v. Sipple, 211 F.3d 1346, 1353 (11th Cir. 2000) (internal quotation and citation omitted) ("[T]he relevant inquiry is not whether the public would be interested in the topic of the speech at issue but rather is whether the purpose of [the plaintiffs] speech was to raise issues of public concern."). Contrary to her contention, Moore's posts are not "very popular criticisms of affirmative-action events and organizations," Pl.'s Resp. at 8, but accusations of racism directed by the Black American community based on the general acceptance of Black-related cultural, historical, and educational logos and expressions. The thrust of the two posts shared by Moore were not expressions of public concern but remarks that facilitated Moore's own personal grievance about the manner in which American society allows Black Americans to promote their heritage. As such, they are not protected expression under the First Amendment for purposes of her wrongful termination claim against Defendants.
b. Even if Moore's Speech Related to a Matter of Public Concern, Was Her Interest Outweighed by Defendants' Interest in Promoting the Efficiency of Government Services It Performs?
Assuming arguendo that Moore engaged in protected free speech by sharing the two Facebook posts, the Court would still have to consider whether the City's interest in regulating Moore's speech to promote the efficiency of the RPD's services that it performs outweighs Moore's First Amendment interests. In weighing those interests, the Court also would have to consider "(1) whether the speech at issue impedes the government's ability to perform its duties efficiently, (2) the manner, time and place of the speech, and (3) the context within which the speech was made." Martinez v. City of Opa-Locka, 971 F.2d 708, 712 (11th Cir. 1992) (quoting Bryson, 888 F.2d at 1567 (citations and emphasis omitted)). The Court may also look to whether the speech "impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker's duties or interferes with the regular operation of the enterprise." Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987) (citing Pickering, 391 U.S. at 570-73, 88 S.Ct. 1731). The Eleventh Circuit has recognized that an organization like a police department has special concerns and "a need to secure discipline, mutual respect, trust and particular efficiency among the ranks due to its status as a quasimilitary entity different from other public employers." Hansen v. Soldenwagner, 19 F.3d 573, 577 (11th Cir. 1994) (citation and quotation omitted); see also Cotriss v. City of Roswell, No. 19-12747, 2022 WL 2345729, at *9 (11th Cir. June 29, 2022) ("Indeed, we have recognized a heightened need for order, loyalty, and harmony in a quasi-military organization such as a police or fire department.") (quoting Moss v. City of Pembroke Pines, 782 F.3d 613, 621 (11th Cir. 2015)). Thus, Defendants "need not provide proof of actual disruption to their duties and operations; rather, they must show that the speech has the reasonable possibility of causing harm." Id. at *9 (citing Moss, 782 F.3d at 622).
Even if Moore's speech related to a matter of public concern, which this Court holds it does not, the balancing of interests favors Defendants in this case. With respect to whether the speech at issue impeded the RPD's ability to perform its duties efficiently, there is undisputed evidence that Moore's sharing of the Facebook posts not only had the reasonable possibility of causing harm to the RPD but caused actual disruption. Moore's shared Facebook posts were viewed by a former RPD Communications Officer who shared them with Cooke, a currently employed RPD Communications Officer, whose concern led her to share them with two other RPD Communications Officers, all of whom expressed concern about the posts, relating that they were "offended" and "unsettled." Because Moore was a Senior RPD Communications Officer, "such speech could undermine loyalty, discipline, and good working relationships among the Department's employees if left unattended." Duke v. Hamil, 997 F. Supp. 2d 1291, 1302 (N.D. Ga. 2014) (quoting Busby v. City of Orlando, 931 F.2d 764, 774 (11th Cir. 1991) (internal punctuation omitted)). And Moore shared the Facebook posts publicly such that at least one former member of the RPD who knew her status as a member of the RPD saw them. In addition, Moore's public postings were certain to draw controversy within the RPD if not elsewhere, given her usage of the Confederate flag and sharing of sweeping generalizations about racism by Black Americans. Duke, 997 F. Supp. 2d at 1303 (finding that such symbolism "could convey a host of opinions that many would find offensive, especially when associated with a senior law enforcement official[.]"). Moreover, these posts were made prior to a large protest in Roswell during the summer of 2002 after several highly publicized instances of alleged police misconduct involving Balck Americans. See Formal Investigative Report at 4 n. 2. Because Moore's Facebook posts at least had the reasonable possibility of causing harm to the operation of the RPD and appears to have caused actual disruption to its efficient operation, this factor weighs against Moore.
With respect to the manner, time, and place of Moore's speech, Moore made the post while she was off duty, at home, and using her personal computer. These facts weigh in her favor. However, Moore admittedly shared the posts on her Facebook page which others were able to access, and at least one person formally affiliated with the RPD did access her posts. The manner, time, and place analysis is, at best for Moore's perspective, neutral.
Finally, the Court looks at the context in which the speech was made. Moore's posts open with a photo of the Confederate flag contending that if the flag represents racism in America then so do symbols such as the logos for Black Entertainment Television, the NAACP, the Democratic Party, and Black History Month. This is followed by a post of a street painted with the phrase, "Black Lives Matter," with the comment that "only in America can an ethnic group" have references to Black celebrations, colleges, holidays, and social activities and not be called racist themselves. The actual context of the Facebook posts lends to being a source of controversy and disruption, and this factor weighs against Moore.
On balance, the Court concludes that Defendants' interests in efficient public service outweighed Moore's interest in making her race-based comments. "When close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer's judgment is appropriate." Connick, 461 U.S. at 151-52, 103 S.Ct. 1684. The Court concludes that, even if Moore's speech was related to a matter of public interest, that interest was outweighed by Defendants' interest in promoting the efficiency of the public services the RPD performs through its employees.
Because Moore has failed to carry her burden that she spoke on a matter of public concern or, even if it could be argued she did, that her free speech interest outweighed the City's interest in efficient public service, Moore's claim for First Amendment wrongful termination fails. Accordingly, Defendants' Motion to Dismiss Count 1 of the Amended Complaint is GRANTED.
B. First Amendment Overbreadth Claim
In Count 2 of the Amended Complaint, Moore contends that City of Roswell HR Policy § 2.19.4 and RPD Policy § 45.2 are unconstitutionally overbroad "because these policies restrict a substantial amount of constitutionally protected speech without sufficient justification for doing so." Am. Compl. ¶¶ 42-43. In their Motion to Dismiss, Defendants reference the allegations in the Amended Complaint which refer to both City of Roswell HR Policy § 2.19.4 and RPD Policy § 45.2, Defs.' Mot. at 18 (citing Am. Compl. ¶¶ 14, 17), and contend that the City's Policy tracks the factors of the Pickering balancing test and is not facially overbroad, id. at 16-20. Significantly, Defendants conclude by stating, "[P]laintiff's facial overbreadth claim fails because she cannot show the city's social media policies were overbroad or that the city's concerns in adopting or enforcing the social media policies were merely conjectural." Id. at 19-20 (emphasis added). In her response, Moore asserts that City of Roswell HR Policy § 2.19.4 is akin to the policy that was declared to be overbroad in O'Laughlin v. Palm Beach Cnty., 30 F.4th 1045 (11th Cir. 2022), but fails to mention RPD Policy § 45.2. Pl.'s Resp. at 17-21. Moore does reference RPD Policy § 16.82 in her response, id. at 19, but she does not challenge the constitutionality of that policy in her Amended Complaint. See Am. Compl. ¶¶ 12-17, 33, 42-43, 46-47.
A plaintiff "cannot amend [her] complaint through argument made in [her] brief in opposition to the defendant's motion . . . ." Miccosukee Tribe of Indians of Fla. v. United States, 716 F.3d 535, 559 (11th Cir. 2013); see also Brannen v. United States, No. 4:11-CV-135-HLM, 2011 WL 8245026, at *5 (N.D. Ga. Aug. 26, 2011) ("Plaintiffs cannot amend their Complaint through their brief in response to the motion to dismiss.").
In determining whether a public employer's policy that prospectively restricts speech is unconstitutionally overbroad, courts apply a modified version of
the Pickering-Connick test. That test places a heavy burden on the government to "show that the interests of [the] potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression's necessary impact on the actual operation of the Government." United States v. Nat'l Treasury Emps. Union, 513 U.S. 454, 468 [115 S.Ct. 1003, 130 L.Ed.2d 964] (1995) (quotation marks omitted).O'Laughlin, 30 F.4th at 1054. In O'Laughlin, two firefighters were disciplined by their county fire department based on Facebook posts in which they accused union officials of conspiring with management to misuse paid time off. Id. at 1048. The firefighters were disciplined in accordance with a social media policy that prohibited the dissemination of "content that could be reasonably interpreted as having an adverse effect upon Fire Rescue morale, discipline, operations, the safety of staff, or perception of the public." Id. at 1049, 1054. In concluding that the policy was unconstitutionally overbroad, the Eleventh Circuit found that the conduct sought to be prohibited "could be just about anything." Id. at 1055. The Eleventh Circuit cited with approval the decision of the Fourth Circuit in Liverman v. City of Petersburg, 844 F.3d 400 (4th Cir. 2016), which ruled as overbroad a social media policy that prohibited "negative comments about the operation of the Bureau" and the dissemination of information "that would tend to discredit or reflect unfavorably" upon the department, because there could be "no doubt" that the policy prohibited protected speech. Id. at 1054 (quoting Liverman, 844 F.3d at 404).
Moore contends that City of Roswell HR Policy § 2.19.4 is "almost exactly like" the policy declared overbroad in O'Laughlin. Pl.'s Resp. at 18. The Court finds that § 2.19.4 is distinguishable from the policy in O'Laughlin. Although the City's policy contains a broad statement that "any matter which brings individual employees or the City of Roswell into disrepute has the corresponding effect of reducing public confidence and trust in the City, thus impeding the ability to work with and serve the public," it provides the following test to determine whether a social media post is sanctionable:
The policy of the City of Roswell is to maintain a level of professionalism in both on-duty and off-duty conduct that fulfills the mission of the City. Any publication, through any medium which is potentially adverse to the operation, reputation or efficiency of the City of Roswell will be deemed a violation of this policy. When considering if an employee's social media post is potentially adverse to the City, the City will consider the following factors (but not at the exclusion of other factors):City of Roswell HR Policy § 2.19.4. Rather than a flat ban on speech which "could be interpreted" as having an adverse effect on morale or operations, the policy provides guidance as to the factors to be considered in order to determine when a social media post would be disruptive to the City's operations. Because the policy requires the City to apply the Pickering factors to determine whether the social media post negatively impacted the City's operations, the policy prohibits only the types of speech that would tilt the Pickering balance in the City's favor, so it is not overbroad. Thus, Defendant's Motion to Dismiss the portion of Count 2 of the Amended Complaint which asserts that City of Roswell HR Policy § 2.19.4 is overbroad is GRANTED.
• Is the speech made pursuant to the employee's official duties;
• Is the speech is a matter of public concern;
• Is the City's interests, as an employer, in promoting the efficiency of the public service it renders sufficient to outweigh the employee's speech interests;
• Is the speech a motivating factor in an adverse employment action; and
• Would the City have reached the same employment decision based on the absence of the speech.
However, that still leaves Moore's overbreadth challenge to RPD Policy § 45.2, which provides that "[e]mployees shall not post any material on the Internet that brings discredit to, or may adversely affect the efficiency, professionalism, or integrity of the Department." Although Defendants mention the RPD policy, Defs.' Mot. at 18, they do not discuss why it is not overbroad, instead relying on City of Roswell Policy § 2.19.4's list of specific factors the City considers to determine whether the social media post is impermissible under the City's policy. But the factors in City of Roswell Policy § 2.19.4 do not appear to apply to RPD Policy § 45.2. Consequently, Defendants have not presented any argument as to why RPD Policy § 45.2 is not overbroad and its motion to dismiss must be DENIED as to that portion of Count 2 of the Amended Complaint.
C. Claims Against Gary Palmer
1. Official Capacity Claim
Moore sues Palmer in his official capacity for wrongful termination in Count 1 of the Amended Complaint and for implementation of the alleged overbroad speech restrictions in Count 2 of the Amended Complaint. Am. Compl. at 7-8. Defendants contend that because Palmer is no longer the City Administrator, see Am. Compl. ¶ 6 (alleging that Palmer "is Roswell's former City Administrator"), and any such claim against him in his official capacity is duplicative of the claim against the City, Palmer should be dismissed as a defendant. Defs.' Mot. at 7. With respect to her claims against Palmer in his official capacity, Moore indicates she sued him "only for the purpose of identifying the specific office this Court should order to effect the prospective relief Ms. Moore seeks, as required under the doctrine of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)." Id. at 21 n.3.
As this Court has concluded that Moore's First Amendment wrongful termination claim in Count 1 fails as against the City, the claim necessarily fails against Palmer as City Administrator, not to mention the fact that suing Palmer is duplicative of suing the City of Roswell. See Cooper v. Dillon, 403 F.3d 1208, 1221 n.8 (11th Cir. 2005) ("We note that a suit against Dillon in his official capacity is the same as a suit against the municipality of the City of Key West.") (citation omitted); Busby, 931 F.2d at 776 ("suits against a municipal officer sued in his official capacity and direct suits against municipalities are functionally equivalent."). Moreover, to the extent there is a portion of Count 2 still remaining in this case, based upon the allegations of the Amended Complaint, Palmer is no longer in a position to effectuate any relief that could be ordered by this Court assuming that the Court finds RPD Policy § 45.2 to be constitutionally overbroad.
Defendants' Motion to Dismiss Palmer in his official capacity is therefore GRANTED.
2. Individual Capacity Claim
Moore also sues Palmer in his individual capacity in Count 2 of the Amended Complaint. Defendants contend that this claim should be dismissed based upon the doctrine of qualified immunity because the decision to terminate Moore was within Palmer's discretionary authority and he violated no clearly established right. Defs.' Mot. at 20-25. Moore agrees that this action was within Palmer's discretionary authority but argues that Pickering clearly establishes that Palmer's action was unconstitutional. Pl.'s resp. at 22-24.
Qualified immunity shields officials who are acting within their discretionary authority from liability when their conduct does not violate a federal statutory or constitutional right that was clearly established at the time of the challenged action. Williams v. Aguirre, 965 F.3d 1147, 1156 (11th Cir. 2020). If the official is acting within the scope of her discretionary authority when she commits the allegedly unlawful actions, the plaintiff must prove "that qualified immunity is not appropriate." Penley [v. Eslinger], 605 F.3d [843,] 849 [(11th Cir. 2010)] (quoting [Lee v.] Ferraro, 284 F.3d [1188,] 1194 [(11th Cir. 2002)]). "We are required to grant qualified immunity to a defendant official unless the plaintiff can demonstrate two things: (1) that the facts, when construed in the plaintiff's favor, show that the official committed a constitutional violation and, if so, (2) that the law, at the time of the official's act, clearly established the unconstitutionality of that conduct." Singletary v. Vargas, 804 F.3d 1174, 1180 (11th Cir. 2015).Jiles v. Lowery, No. 22-13245, 2023 WL 2017354, at *3 (11th Cir. Feb. 15, 2023).
Because the parties agree that the termination of Moore's employment was within Palmer's discretionary authority, the burden shifts to Moore to overcome Palmer's qualified immunity. This Court has ruled that the action terminating Moore's employment was not a constitutional violation, so the first prerequisite for Moore to avoid the application of qualified immunity (that the official violated a constitutional right) as to Palmer is absent. That alone defeats Moore's claim against Palmer in his individual capacity. See Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) (finding that lower courts have the discretion to decide which of the two prongs of qualified immunity to tackle first). And because this Court finds no constitutional violation with respect to Moore's termination based upon the first and second prong in Pickering, there is no clearly established constitutional right that Palmer violated. Therefore, Defendants' Moton to Dismiss the claims against Palmer in his individual capacity is also GRANTED.
IV. CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Defendants City of Roswell, Georgia and Gary Palmer's Motion to Dismiss Amended Complaint [Doc. 16] is GRANTED IN PART and DENIED IN PART. The Motion is GRANTED as to Count 1 in its entirety and as to Count 2 as to the constitutional overbreadth challenge to City of Roswell Human Resources Policy § 2.19.4 but DENIED as to the overbreadth challenge to Roswell Police Department Policy § 45.2.
It is further ORDERED that Gary Palmer is DISMISSED as a Defendant in this case.
IT IS SO ORDERED this 6th day of July, 2023.