Opinion
No. 1:05-cv-0713-GET.
August 4, 2006
ORDER
The above-styled matter is presently before the court on:
(1) Mayor Franklin's motion for partial summary judgment [docket no. 16];
(2) plaintiff's motion to continue [docket no. 21];
(3) Mayor Franklin's amended motion for protective order [docket no. 23];
(4) defendants' motion for leave to file motion for judgment on the pleadings [docket no. 29-1];
(5) defendants' motion for judgment on the pleadings [docket no. 29-2].
Plaintiff filed the instant action on March 15, 2005, alleging that he was not selected to be the director of the Atlanta Workforce Development Agency ("the Agency") and was terminated from his position as executive director for the Atlanta Workforce Development Board ("the Board") in violation of his right to freedom of speech. Plaintiff contends that the Agency, the Board and the City of Atlanta are his employers. On November 29, 2005, Mayor Franklin filed a motion for partial summary judgment and a motion to stay discovery. On January 5, 2006, plaintiff filed a motion to continue. On January 18, 2006, Mayor Franklin filed a motion for protective order. On June 23, plaintiff filed a motion for leave to file a motion for judgment on the pleadings, with the motion for judgment on the pleadings attached.
Discovery Motions
Mayor Franklin's motion for partial summary judgment contained a motion to stay discovery, in which Mayor Franklin requested the court to stay discovery until issuing an order on the motion for partial summary judgment. On January 5, 2006, plaintiff filed a motion to continue, seeking an order from the court permitting further discovery before ruling on the motion for partial summary judgment. On January 18, 2006, Mayor Franklin filed a motion for protective order, seeking a delay of three noticed depositions until after the court's ruling on the motion for partial summary judgment. On January 20, 2006, the parties filed a consent motion staying discovery until the court rules on the issue of qualified immunity. On January 23, 2006, the court issued an order which stayed discovery pending this court's ruling on the motion for partial summary judgment, and permitting thirty (30) days of discovery to commence when such order is issued. Accordingly, the portion of Mayor Franklin's motion for partial summary judgment [docket no. 16] requesting a discovery stay, plaintiff's motion to continue [docket no. 21], and Mayor Franklin's motion for protective order [docket no. 23] are hereby DENIED AS MOOT.
Motion for Leave to File Motion for Judgment on the Pleadings
Defendants filed a motion for leave to file a motion for judgment on the pleadings on June 23, 2006. Pursuant to LR 7.1(A)(2), all motions other than those specifically referenced must be filed within thirty (30) days of the close of discovery, without prior permission of the court. Defendants request the court's permission to file a motion for judgment on the pleadings based on a Supreme Court decision issued on May 30, 2006. Although plaintiff has filed a response to the motion for leave to file a motion for judgment on the pleadings, he argues the merits of the motion for judgment on the pleadings and does not address whether leave should be granted. The court has reviewed the Supreme Court case at issue and finds that a motion for judgment on the pleadings may be appropriate to address the developments in the law. Accordingly, defendants' motion for leave to file a motion for judgment on the pleadings [docket no. 29] is GRANTED.
Motion for Judgment on the Pleadings
Defendants have filed a motion for judgment on the pleadings arguing that defendant's claims are barred by a recently issued Supreme Court case.
Standard
"Judgment on the pleadings is appropriate only when the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Horsley v. Feldt, 304 F.3d 1125, 1131 (11th Cir. 2002). The allegations contained in the complaint must be accepted as true, and the facts and inferences construed in the light most favorable to the non-moving party.See Hawthorne v. Mac Adjustment, Inc., 140 F.3d 1367, 1370 (11th Cir. 1998).
Discussion
Plaintiff filed the instant action based on the claim that he was wrongfully fired from his position, and not hired into another position, because he reported mismanagement within the Agency. Plaintiff contends that the adverse employment actions violate his right to free speech because his reports were protected by the First Amendment to the United States Constitution pursuant to 42 U.S.C. § 1983. The parties' arguments in the motion for judgment on the pleadings are entirely based on whether plaintiff's speech was protected. If plaintiff's speech was not protected, it does not matter whether the employment actions taken were based on the speech. Accordingly, the court does not discuss allegations from the complaint relating to plaintiff's discharge or failure to be hired in another position.
Plaintiff bases his claim that he engaged in protected speech on the following allegations: Plaintiff was employed by defendants. He had last worked for defendants as Executive Director of the Board. Plaintiff's responsibilities included, but were not limited to, policy and system building, member support, external relations, administration and compliance. In 2002, plaintiff spoke out about the financial mismanagement of the Agency. From July 2002 through December 2002, plaintiff forwarded documents to the Mayor's Office and the City Law Department detailing gross financial mismanagement of federal funds, questionable personnel policies and unauthorized bank deposits by the Agency director and finance director. In January 2003, plaintiff met with the City Attorney, the Deputy Chief Operating Officer, and the Board Chairman to discuss the Mayor's response to plaintiff's disclosures.
Defendants assert that the recent Supreme Court decision inGarcetti v. Ceballos, 126 S. Ct. 1951 (2006), bars plaintiff's claim by a holding that requires a determination that plaintiff's speech is unprotected by the Constitution. Garcett 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 Constitut ion does not insulate their communications from employer discipline." Id. at 1960. Defendant contends that plaintiff was obligated to report Agency mismanagement as a part of his job and his fiduciary obligation to his employer. Plaintiff argues that his report of Agency mismanagement was not part of his "official duties," because the inquiry is limited to the employee's actual, day-to-day activities, and plaintiff's day-to-day activities do not include fiduciary obligations.
The proper inquiry into whether an employee is acting in the scope of his official duties is a practical determination, rather than one based on job description. Garcett at 1961-1962. The "controlling factor" is whether the expressions are made as an employee fulfilling his responsibility to his employer. Id. at 1960 ("controlling factor" is that employee's "expressions were made pursuant to his duties as an" employee in his specific job).Id. at 1961-2. However, the Supreme Court had "no occasion to articulate a comprehensive framework for defining the scope of an employee's duties" because the parties to the action stipulated that the plaintiff was acting pursuant to his official duties.Id.
The Eleventh Circuit Court of Appeals has addressed when an employee was speaking as an employee rather than citizen for first amendment purposes. The Eleventh Circuit has long considered the purpose of an employee's expression when evaluating first amendment claims by employees against their employers. See Morris v. Crow, 142 F.3d 1379, 1381 (11th Cir. 1998); Chesser v. Sparks, 248 F.3d 1117, 1122-1123 (11th Cir. 2001). If the employee spoke primarily in his role as a citizen, the court continued to the next step in analyzing whether the speech was protected. Morris, 142 F.3d at 1382;Chesser, 248 F.3d at 1123. However, speech that was "generated pursuant to [plaintiff's] official and customary duties" and made "primarily in the role of an employee" was not protected by the First Amendment. See Morris, 142 F.3d at 1382 (speech criticizing police officers involved in a collision that was reported in officer's accident report was not protected);Chesser, 248 F.3d at 1123 (speech that failure to pay overtime was unlawful by employee in charge of payroll was not protected). Accordingly, the Eleventh Circuit has established that speech made "pursuant to official duties" is speech made "primarily in plaintiff's role as an employee."
The court must therefore determine whether the allegations in plaintiff's complaint show that, as a matter of law, plaintiff's speech was made in his role as an employee. Plaintiff alleges that his responsibilities to defendants included, but were not limited to, policy and system building, member support, external relations, administration and compliance. Defendant argues that plaintiff's responsibilities also include fulfilling fiduciary obligations to his employer. Plaintiff has pointed to authority suggesting that at-will employees do not owe a fiduciary duty to their employer. See Tom's Amusement Co., Inc. v. Total Vending Serv's, 243 Ga. App. 294, 295-296 n. 6 (2000). However, Georgia law imposes on employees "a duty of loyalty, faithful service and regard for an employer's interest." Tom's Amusement Co. Inc., 243 Ga. App. at 295; Wilson v. Wilson, 277 Ga. App. 801, 805 (2004), cited in Glades Pharm., LLC v. Murphy, 2005 WL 3455857 (N.D. Ga. 2405). Part of an employee's duty includes doing whatever the employer might do in the protection of his master's property. DeKalb Collision Center, Inc. v. Foster, 254 Ga. App. 477 (2002) (worker entitled to worker's compensation when injured while protecting master's property).
Plaintiff was Executive Director of the Board, and was working for the Board, Agency, City of Atlanta and Mayor Franklin. Plaintiff's speech informed three of his employers, the Board through the Chairman, the City of Atlanta through Mayor Franklin, and Mayor Franklin, that officers of the Agency he worked for were engaged in wrongdoing that would harm the Agency, such as mismanagement of federal funds and unauthorized bank deposits. Accordingly, he spoke out of "regard for his employer's interest." Thus, defendant had an obligation as an employee to engage in the speech at issue. The expression fulfilled one of plaintiff's job responsibilities and was made in plaintiff's role as an employee.
Because plaintiff was acting "pursuant to his official duties" when, as executive director of the Board, he discussed Agency mismanagement with the Board Chairman and Mayor Franklin, defendants' motion for judgment on the pleadings [docket no. 29-2] is hereby GRANTED.
Motion for Partial Sunmary Judgment
The court finds that Mayor Franklin's motion for partial summary judgment on the grounds of qualified immunity is unnecessary based on the court's decision on defendants' motion for judgment on the pleadings. Accordingly, Mayor Franklin's motion for partial summary judgment [docket no. 16] is hereby DENIED AS MOOT.
Summary
(1) Mayor Franklin's motion for partial summary judgment [docked no. 16] is hereby DENIED as MOOT;
(2) plaintiff's motion to continue [docket no. 21] is DENIED AS MOOT;
(3) Mayor Franklin's amended motion for protective order [docket no. 23] is DENIED AS MOOT;
(4) defendants' motion for leave to file motion for judgment on the pleadings [docket no. 29-11 is GRANTED;
(5) defendants' motion for judgment on the pleadings [docket no. 29-2] is GRANTED.
SO ORDERED.