Maria Gresham v. City of Atlanta, Georgia, et al

Filing

Opinion issued by court as to Appellant Maria Gresham. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 12-12968

Date Filed: 10/17/2013

Page: 1 of 6

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12968
________________________
D. C. Docket No. 1:10-cv-01301-RWS
MARIA GRESHAM,
Plaintiff -Appellant,
versus
CITY OF ATLANTA,
MAJOR PERDUE,
official capacity,
CHIEF GEORGE TURNER,
individual and official capacities,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 17, 2013)
Before PRYOR and ANDERSON, Circuit Judges, and RESTANI, Judge.∗
PER CURIAM:
∗

Honorable Jane A. Restani, United States Court of International Trade Judge, sitting by
designation.

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In this appeal, Plaintiff appeals the judgment of the district court granting
summary judgment in favor of Defendants, the City of Atlanta and its police chief,
dismissing Plaintiff’s § 1983 First Amendment suit. Plaintiff claimed that the
chief’s failure to promote her was in retaliation for a comment she posted on
Facebook criticizing another law enforcement officer of the department,
Investigator Barbara Floyd. Plaintiff’s Facebook comment criticized Floyd for
interfering in an unethical manner with the investigation of a person Plaintiff had
arrested for fraud and financial identity theft. Plaintiff’s Facebook page was “set to
private,” but was available for viewing by an unknown number of Plaintiff’s
“friends,” who of course could potentially distribute the comment more broadly.
When alerted to the Facebook comment, the Department’s Office of Professional
Standards opened an investigation of Plaintiff for her alleged violation of the
Department’s work rule requiring that any criticism of a fellow officer “be directed
only through official Department channels, to correct any deficiency, and . . . not be
used to the disadvantage of the reputation or operation of the Department or any
employees.”
While the investigation was pending, promotions for which Plaintiff would
have been eligible occurred, but Plaintiff was not promoted. Plaintiff argues that
she was not promoted in retaliation for her First Amendment Facebook speech.
Defendants, on the other hand, argue that Plaintiff was not eligible for promotion
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because of the pending investigation; there was a policy not to consider candidates
for promotion if they had disciplinary investigations pending against them.
The issue before us is whether a police officer can be disciplined for violating
this work rule under these circumstances. The appropriate analysis is well
established. Under the four-part Pickering 1 analysis, the court must determine
whether (1) Plaintiff’s speech involved a matter of public concern; (2) Plaintiff’s
interest in speaking outweighed the government’s legitimate interest in efficient
public service; and (3) the speech played a substantial part in the government’s
challenged employment decision. If Plaintiff establishes the foregoing, then she
would prevail unless Defendants prove that (4) they would have made the same
employment decision even in the absence of the protected speech. The first two
prongs of the analysis are questions of law, while the latter two are questions of
fact. Like the district court, we assume, arguendo, that Plaintiff’s speech implicated
a matter of public concern, and we turn to the second prong in which we balance
the plaintiff’s interest in speaking against the government’s legitimate interest in the
efficient operation of the police department.
In conducting this balancing process, the law is well established that
maintaining discipline and good working relationships amongst employees is a
legitimate governmental interest. See Rankin v. McPherson, 483 U.S. 378, 388,

1

Pickering v. Bd. of Educ., 391 U.S. 563, 88 S. Ct. 1731 (1968).
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107 S. Ct. 2891, 2899 (1987) (recognizing that whether a plaintiff’s speech
“impairs discipline by superiors or harmony among co-workers, [or] has a
detrimental impact on close working relationships” is an important factor in the
Pickering balance). Also, it is well established that a police department is a quasimilitary organization and that “comments concerning co-workers’ performance of
their duties and superior officers’ integrity can directly interfere with the
confidentiality, espirit de corps and efficient operation” of the department. Busby
v. City of Orlando, 931 F.2d 764, 774 (11th Cir. 1991) (internal quotation marks
omitted).
Plaintiff’s sole argument on appeal is that Defendants adduced no evidence at
all of such disruption, and therefore the Pickering balance clearly tilts in her favor.2
Plaintiff’s argument lacks support both in the law and on the facts. The case law is
clear that the government’s legitimate interest in avoiding disruption does not
require proof of actual disruption. As the district court noted, the Supreme Court in
Connick v. Myers expressly held:
When close working relationships are essential to fulfilling public
responsibilities, a wide degree of deference to the employer’s
2

Plaintiff also vaguely suggests that there was no violation of the work rule at all
because Plaintiff made several attempts to seek redress within the Department for Floyd’s
interference, but her efforts were unsuccessful. We agree with the district court that,
notwithstanding this allegation by Plaintiff, she adduced no evidence in support thereof.
Moreover, Plaintiff’s Facebook comment occurred only seven days after Floyd’s interference,
which is insufficient time to conclude that pursuing the matter through channels as required by the
work rule was futile. We readily conclude that Defendants were amply reasonable in their
perception that an investigation of the apparent violation of the work rule was appropriate.
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judgment is appropriate. Furthermore, we do not see the necessity for
an employer to allow events to unfold to the extent that the disruption
of the office and the destruction of working relationships is manifest
before taking action.
461 U.S. 138, 151-52, 103 S. Ct. 1684, 1692 (1983). Rather, we have held that “the
reasonable possibility of adverse harm will generally be enough to invoke the full
force of judicial solicitude for a police department’s internal morale and discipline.”
Waters v. Chaffin, 684 F.2d 833, 839 (11th Cir. 1982).
Plaintiff is also wrong on the facts. It is undisputed that Plaintiff violated the
work rule requiring criticism of the Department or fellow officers to be directed
only through Department channels. If the Department’s investigation thereof were
deemed First Amendment retaliation, that would have a tendency to render such a
rule unenforceable and would encourage employees to circumvent the
Department’s investigation processes, thus impeding the Department’s
investigations and ability to correct problems. In addition, common experience
teaches that public accusations of unethical conduct against fellow officers would
have a natural tendency to endanger the espirit de corps and good working
relationships amongst the officers. Thus, we conclude that there is actual evidence
in this record of a reasonable possibility of disruption of the legitimate interests of
the Department.
We also agree with the district court that these legitimate interests of the
Department outweigh Plaintiff’s interest in speaking in this manner. In this regard,
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we note that the context of Plaintiff’s speech is not one calculated to bring an issue
of public concern to the attention of persons with authority to make corrections, nor
was its context one of bringing the matter to the attention of the public to prompt
public discussion to generate pressure for such changes. Rather, we agree with the
district court that the context was more nearly one of Plaintiff’s venting her
frustration with her superiors. Thus, we conclude that Plaintiff’s speech interest is
not a strong one, a factor which the Supreme Court has indicated is appropriate to
consider in the balancing process. See, e.g., Connick, 461 U.S. at 148, 154, 103 S.
Ct. at 1691, 1693-94 (striking the Pickering balance in favor of the government
after finding that the employee’s speech mainly reflected her own personal
displeasure with the decisions of her superiors and that her speech interest therefore
was not sufficiently strong to outweigh the government’s interests). Moreover,
even if Plaintiff’s speech interests were somewhat stronger, we conclude that the
Department’s interest is considerable, and that the balance clearly tilts in favor of
the Department.
Accordingly, the judgment of the district court is
AFFIRMED.

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