The Court next considers Plaintiff's First Amendment retaliation claims.
C. Plaintiffs' First Amendment Claims
The law is well-established that the State may not demote or discharge a public employee in retaliation for speech protected under the First Amendment. Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir. 1989). This First Amendment right, however, is not absolute. Id. In cases where the State denies
[Page 13]
discharging an employee because of speech, the Court engages in a four-stage analysis first set out in Pickering v. Board of Educ., 391 U.S. 563 (1968). To state a prima facie case of First Amendment retaliation, a plaintiff must show that (1) the plaintiff spoke "as a citizen" on speech that can fairly be categorized as a matter of public concern, D'Angelo v. School Bd. of Polk County, Fla., 497 F.3d 1203, 1209 (11th Cir 2007); and (2) the plaintiff's First Amendment interests as a citizen outweigh the interests of the State as an employer in promoting efficient public services. Bryson, 888 F.2d at 1565; Pickering, 391 U.S. at 568. The first two questions are questions of law for the Court. Cook v. Gwinnett County School Dist., 414 F.3d 1313, 1318 (11th Cir. 2005). If the employee prevails on the balancing test, the fact-finder then determines if (3) the employee's speech played a substantial motivating role in the government's decision to demote or discharge the employee. Bryson, 888 F.2d at 1565-66; Mt. Healthy City School Dist. Board of Educ. v. Doyle, 429 U.S. 274 (1977). "If any employee satisfies her burden on the first three steps, the burden then shifts to the employer to show by a preponderance of the evidence that [4] it would have made the same decision even in the absence of the protected speech." Cook, 414 F.3d at 1318; accord Mt. Healthy, 429 U.S. at 286. "[T]he final two steps are ‘questions of fact designed to
[Page 14]
determine whether the alleged employment action was in retaliation for the protected speech.'" Cook, 414 F.3d at 1318 (quoting Anderson v. Burke County, Ga., 239 F.3d 1216, 1219-20 (11th Cir. 2001)).
The threshold question in First Amendment retaliation cases is whether the employee spoke both on a matter of public concern and as a citizen. The Supreme Court established these dual requirements in its 2006 decision in Garcetti v. Ceballos, 547 U.S. 410 (2006). In that case, the respondent-plaintiff was employed as a calendar deputy district attorney for the Los Angeles County District Attorney's Office. Based on contact with a defense attorney and his own independent investigation, the plaintiff filed two memos with his supervisors detailing what he perceived to be material inaccuracies in an affidavit used to obtain a crucial search warrant in a case. The plaintiff filed a Section 1983 First Amendment action after he received what he perceived to be retaliatory treatment in response to his memos. Id. at 414-15.
In upholding the district court's grant of summary judgment in favor of the defendants, the Supreme Court held that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications
[Page 15]
from employer discipline." Id. at 421. The Supreme Court noted that the plaintiff wrote his memos "because that is part of what he, as a calendar deputy, was employed to do." Id. The Court did not, however, articulate a formal framework for defining the scope of an employee's duties in First Amendment cases. "The proper inquiry is a practical one. Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and the listing of a given task in an employee's written job description is neither necessary nor sufficient to demonstrate that conducting the task is within the scope of the employee's professional duties for First Amendment purposes." Id. at 424-25. The Eleventh Circuit has since applied Garcetti's "speech as a citizen" requirement in its decisions. D'Angelo, 497 F.3d at 1209; Vila v. Padron, 484 F.3d 1334, 1339 (11th Cir. 2007); Phillips v. City of Dawsonville, 499 F.3d 1239, 1241 (11th Cir. 2007). The Eleventh Circuit has also affirmatively cited the Supreme Court's statements in Garcetti that the inquiry of what falls into an employee's official duties is pragmatic and is not disposed of solely through analysis of an employee's formal job duties. D'Angelo, 497 F.3d at 1211; Phillips, 499 F.3d at 1242; Khan v. Fernandez-Rundle, No. 06-15259, 2007 WL 2859803, at *3 (11th Cir. Oct. 3, 2007).
[Page 16]
The Court must therefore assess whether the Plaintiffs in this case conducted their alleged speech activities "pursuant to their official duties." The Court is required to limit its consideration to the Plaintiffs' allegations in their Amended Complaint and to admissions by the Defendants. Plaintiffs allege that they were hired to write FOG codes for DeKalb County, and that initially their job responsibilities "did not require them to evaluate SSO data." Am. Compl. ¶ 16; accord id. ¶¶ 18, 19. Defendants admit those allegations. Answer to Am. Compl. ¶¶ 16, 18, 19. Plaintiffs also allege, however, that they researched SSO data "so as to ascertain ‘SSO hotspots' in DeKalb County in order to write a better and more effective FOG code." Am. Compl. ¶ 16. Plaintiffs also allege that beginning in 2005, their "job duties were expanded to include investigating SSO's in order to determine whether grease was the cause of the SSO's." Am. Compl. ¶ 24. The Defendants admit this allegation as well. Answer to Am. Compl. ¶ 24. Plaintiffs allege they investigated two specific SSOs – at Panthersville Road and at Fairlake Drive – in January and February 2005. Am. Compl. ¶¶ 38, 39. Finally, Plaintiffs allege that it was not part of their job duties to determine, remediate, post or report any SSOs in DeKalb County, nor was it their responsibility to monitor DeKalb
[Page 17]
County's compliance with applicable federal or state laws regarding SSOs. Am. Compl. ¶ 25.
As the Supreme Court has expressed, and the Eleventh Circuit has favorably cited, the determination of "official duties" is a pragmatic question not determined by recitation of an employee's enumerated duties. "Restricting speech that owes its existence to a public employee's professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created." Garcetti, 547 U.S. at 421-22. By this standard, the Plaintiffs' speech in this case "owed its existence" to their professional responsibilities as Compliance Inspectors with DeKalb County. As Plaintiffs allege, they investigated SSOs initially in order to write better FOG code – or put different, in order to better perform the job they were hired to do. Am. Compl. ¶ 16. In early 2005, Plaintiffs allege that their official job duties were in fact "expanded to include investigating SSO's." Id. ¶ 24. Indeed, the only two specific SSOs Plaintiffs allege to have investigated were investigated after their official job duties were expanded to include investigating SSOs.
[Page 18]
Plaintiffs contend that because their official job duties did not include determining, remediating, posting, or reporting SSOs, their speech activities are constitutionally protected. This argument is unpersuasive. First, Plaintiffs do not allege that they determined, remediated, posted, or reported SSOs, either formally or informally. Plaintiffs instead allege that they requested SSO data from their superiors and conducted independent investigations in order to better perform their enumerated jobs. Second, the Supreme Court has made clear that specific job functions are not dispositive. What matters instead is a pragmatic inquiry into the full scope of the Plaintiffs' duties. In this case, Plaintiffs repeatedly allege that SSO data was, or could be, used to improve their performance in writing FOG codes. Even assuming the Plaintiffs also became concerned about DeKalb County's reporting obligations under federal law for SSOs, and communicated those concerns to their superiors, this does not change the fact that they learned of SSOs because of and while performing their official job responsibilities. The Court determines that the Plaintiffs conducted their speech activities largely to fulfill their professional responsibilities. Under Garcetti, Plaintiffs did not speak as
[Page 19]
"citizens" on a matter of public concern, and the Defendants' motion for judgment on the pleadings must be granted.6
III. CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that the Defendants' Renewed Motion for Judgment on the Pleadings [32] is GRANTED.
SO ORDERED this 31st day of March 2008.
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE
[ENDNOTES]
1 On March 25, 2008, Defendants filed a Suggestion of Death advising the Court that Defendant Walker died on October 20, 2007 [38].
2 The Court accepts as true Plaintiffs' allegation that "when an SSO occurred in DeKalb County and reached a state waterway, the County was required to report that SSO within 24 hours to the Georgia EPD, including providing such information as the location of the SSO, the number of gallons involved in the spill, whether there was a fish kill, whether the site was posted, and the affected state waterway." Am. Compl. ¶ 24.
3 The Court accepts as true Plaintiffs' allegation that, "On November 20, 2006 DeKalb County and the Georgia EPD entered into a Consent Order, No. EPD-WQ-4628 regarding spills that had occurred in DeKalb County through March 2006 . . . . The Consent Order directed DeKalb County to pay a fine of $265,875.00." Id. ¶ 42.
4 Plaintiffs do not assert any claims under the citizen-suit provision of the CWA. Further, although the whistleblower provision authorizes judicial review of administrative actions conducted before the Department of Labor in certain circumstances, 33 U.S.C. § 1367(b), the Plaintiffs have not sought judicial review of Administrative Law Judge Morgan's decision and order, which remains on appeal before the Administrative Review Board of the Department of Labor.
5 Plaintiffs also urge the Court to find an implied private right of action inthe CWA, pointing to the general statements about private rights of action in AT&T Wireless PCS, Inc. v. City of Atlanta, 210 F.3d 1322, 1328 (11th Cir. 2000), opinion vacated on reh'g en banc, 260 F.3d 1320 (11th Cir. 2001). Plaintiffs have not identified any Eleventh Circuit (or any other Circuit) decision finding an implied private right of action in the CWA, and in any event, the Eleventh Circuit vacated its opinion in AT&T.
6 The Defendants also argue that they are entitled to qualified immunity from suit in this case because the right the Plaintiffs seek to vindicate was not "clearly established" at the time of their termination. Saucier v. Katz, 533 U.S. 194, 201-02 (2001); Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1208-09 (11th Cir. 2007). Because the Court has already determined that Plaintiffs fail to state a prima facie case of First Amendment retaliation, the Court need not, and does not, consider whether the Defendants should also be immune from suit.