Eschert v. City of Charlotte
Filing
92
ORDER denying 89 Motion for Judgment as a Matter of Law. Signed by Chief Judge Frank D. Whitney on 6/2/17. (clc) (Main Document 92 replaced on 6/2/2017) (clc).
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:16-cv-295-FDW-DCK
CRYSTAL ESCHERT,
Plaintiff,
vs.
CITY OF CHARLOTTE,
Defendant.
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ORDER
THIS MATTER is before the Court on Defendant, City of Charlotte’s Motion for Judgment
as a Matter of Law (Doc. No. 89) and supporting memorandum (Doc. No. 90). Plaintiff filed a
memorandum in opposition (Doc. No. 91), and the matter is ripe for review. The Court finds that
a hearing is not necessary to resolve the issues and, for the reasons that follow, DENIES
Defendant’s Motion.
I. BACKGROUND
In the interests of judicial economy, the Court declines to provide a thorough recitation of
the testimony, evidence, and arguments presented at the six-day trial before a jury in this matter.
In sum, the causes of action centered on Defendant’s termination of Plaintiff, a fire investigator
for the Charlotte Fire Department (“CFD”). Defendant contended that it terminated Plaintiff
because she violated its social media policy by posting two racially inflammatory comments on
Facebook (“Facebook Posts”). Plaintiff, on the other hand, claimed that Defendant actually fired
her because she complained to her father-in-law and City Councilwoman Claire Fallon about
health and safety issues in a new CFD building and about Defendant’s mismanagement of money
related to that building (“Building Complaints”).
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Relevant here, Plaintiff brought two causes of action against Defendant alleging that
Defendant retaliated against her for exercising her First Amendment right to free speech (“First
Amendment Retaliation”): one claim was based on her Facebook Posts, and the other claim was
based on her Building Complaints.1 At the close of all evidence, Defendant moved for judgment
as a matter of law. The Court granted Defendant’s motion concerning her claim for First
Amendment Retaliation based on the Facebook Posts. The Court ruled that the Facebook Posts
were not protected by the First Amendment because Plaintiff failed to establish that her interest in
that speech outweighed Defendant’s interest in providing effective and efficient services to the
public. (Doc. No. 91-1, pp. 28-31). The Court deferred ruling on Plaintiff’s claim for First
Amendment Retaliation based on the Building Complaints and submitted that and other remaining
issues to the jury.
With regard to Plaintiff’s claim for First Amendment Retaliation based on the Building
Complaints, the Court asked the jury five questions, including two special interrogatories to assist
the Court in determining whether the Building Complaints constituted protected speech. The jury
returned a verdict in favor of Plaintiff, finding that (a) Plaintiff’s Building Complaints were a
motivating factor in Defendant’s decision to terminate her employment, (b) Defendant would not
have terminated Plaintiff’s employment in the absence of the Building Complaints, and (c)
Plaintiff was entitled to $309,692 on that claim. (Doc. No. 86). The jury further found that (d) it
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Plaintiff also brought two identical causes of action under the North Carolina Constitution. The parties agreed both
at summary judgment and at trial that the law for a First Amendment Retaliation claim also applies to a free speech
claim under the State Constitution. Accordingly, for purposes of this Order, the Court’s reference to Plaintiff’s First
Amendment Retaliation claims incorporates her State Constitution claims as well.
Also, in addition to her free speech claims, Plaintiff alleged causes of action for gender discrimination and retaliation
in violation of state and federal laws. After Plaintiff rested her case-in-chief, the Court granted Defendant’s Rule
50(a) motion for judgment as a matter of law on Plaintiff’s Title VII retaliation claim.
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was reasonable to believe that Plaintiff’s Building Complaints caused, or could have caused,
disharmony or disruption in the workplace, (e) but it was not reasonable to believe they impaired
her ability to perform her duties. (Doc. No. 86).2
Defendant renewed its motion for judgment as a matter of law, arguing that the Court
should rule that the Building Complaints were not protected by the First Amendment, a question
of law that the Court must answer before judgment can be entered in this case. The Court ordered
the parties to brief the matter. Discussion of other background information and evidence is set
forth more fully below as needed to explain the Court’s decision.
II. STANDARD OF REVIEW
A party that moved for judgment as a matter of law under Fed. R. Civ. P. 50(a) before the
case is submitted to the jury may renew its motion after trial under Fed. R. Civ. P. 50(b). A Rule
50(b) motion is properly granted “if the nonmoving party failed to make a showing on an essential
element of his case with respect to which he had the burden of proof.” Wheatley v. Wicomico
Cnty., Md., 390 F.3d 328, 332 (4th Cir. 2004) (quoting Singer v. Dungan, 45 F.3d 823, 827 (4th
Cir. 1995)). The Court views the evidence in the light most favorable to the nonmoving party.
Dennis v. Columbia Colleton Med. Ctr., 290 F.3d 639, 645 (4th Cir. 2002).
III. ANALYSIS
The legal principles governing First Amendment claims by public employees are wellsettled. “A state cannot condition public employment on a basis that infringes the employee’s
constitutionally protected interest in freedom of expression.” Connick v. Myers, 461 U.S. 138,
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The jury also returned a verdict in favor of Plaintiff on her two State wrongful discharge claims in violation of the
North Carolina Retaliatory Employment Discrimination Act and North Carolina public policy and awarded her
$464,538 for each of those claims. (Doc. No. 86). It did not find Defendant liable for gender discrimination.
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142 (1983). Courts must “seek ‘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.’” Connick v.
Myers, 461 U.S. 138, 142 (1983) (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968));
Grutzmacher v. Howard Cnty., 851 F.3d 332, 341 (4th Cir. 2017) (“Protection of the public interest
in having debate on matters of public importance is at the heart of the First Amendment.” (quoting
McVey v. Stacy, 157 F.3d 271, 277 (4th Cir. 1998))). In that vein, public employees do not
surrender their First Amendment right to speak on matters of public concern simply because they
are employed by the government. Grutzmacher, 851 F.3d at 341. To the contrary, because
“government employees are often in the best position to know what ails the agencies for which
they work,” the Supreme Court “has repeatedly underscored the considerable value of
encouraging, rather than inhibiting, speech by public employees.” Id. (quoting Hunter v. Town of
Mocksville, 789 F.3d 389, 396 (4th Cir. 2015) (internal quotation marks omitted); but see Connick,
461 U.S. at 138 (“[T]he First Amendment does not require a public office to be run as a roundtable
for employee complaints over internal office affairs”).
With these principles in mind, the Fourth Circuit recently reaffirmed that to state a claim
for First Amendment retaliation, a plaintiff must satisfy the three-prong test set forth in McVey by
showing that: (1) she was a “public employee . . . speaking as a citizen upon a matter of public
concern;” (2) her “interest in speaking upon the matter of public concern outweighed the
government’s interest in providing effective and efficient services to the public;” and (3) her
“speech was a substantial factor in the employer’s termination decision.” Grutzmacher, 851 F.3d
at 342 (quoting McVey, 157 F.3d at 277-78)). The first two prongs, which determine whether the
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speech is protected by the First Amendment, are questions of law for the Court, while the third
prong is a question of fact for a jury. Lane v. Anderson, 660 F. App’x 185, 191 (4th Cir. 2016).
A.
The first question of law is whether Plaintiff, a public employee, spoke as a private citizen
upon a matter of public concern. The Fourth Circuit has instructed that:
[i]n determining whether speech addresses matters of public
concern, “we examine the content, context, and form of the speech
at issue in light of the entire record.” Urofsky v. Gilmore, 216 F.3d
401, 406 (4th Cir. 2000) (en banc). “Speech involves a matter of
public concern when it involves an issue of social, political, or other
interest to a community.” Id. This “public-concern inquiry centers
on whether ‘the public or the community is likely to be truly
concerned with or interested in the particular expression.’ ” Kirby
v. City of Elizabeth City, 388 F.3d 440, 446 (4th Cir. 2004) (quoting
Arvinger v. Mayor of Baltimore, 862 F.2d 75, 79 (4th Cir. 1988)).
Grutzmacher, 851 F.3d at 343. “[M]atters relating to public safety are quintessential matters of
‘public concern,’” Goldstein v. Chestnut Ridge Volunteer Fire Co., 218 F.3d 337, 353 (4th Cir.
2000), whereas “personal grievances [and] complaints about conditions of employment” are not,
Campbell v. Galloway, 483 F.3d 258, 267 (4th Cir. 2007) (quoting Stroman v. Colleton Cnty. Sch.
Dist., 981 F.2d 152, 156 (4th Cir. 1992)).
In addition, a public employee speaks as a private citizen when she “make[s] public
statements outside the course of performing [her] official duties,” as opposed to “speak[ing]
pursuant to employment responsibilities.” Garcetti v. Ceballos, 547 U.S. 410, 423-24 (2006)
(concluding that “the First Amendment does not prohibit managerial discipline based on an
employee’s expressions made pursuant to official responsibilities”).
Here, Plaintiff’s Building Complaints addressed matters of public concern. Plaintiff sent
two separate e-mails containing her Building Complaints to City Councilwoman Claire Fallon, an
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elected public official. The e-mails included Plaintiff’s allegations that CFD was mismanaging
public funds related to a new CFD building and that the new building was not safe. (Doc. No. 913). For example, Plaintiff wrote that “Our $1.9 million for our building has fluctuated and at one
time we only had a few hundred thousand to work with! No one could figure out where allllllll
that money went.” (Doc. No. 91-3). In a more detailed list, Plaintiff expressed concern that the
building was not ADA compliant, would not pass building or electrical inspections, and had
“questionable” air quality. (Doc. No. 91-3). Considering Plaintiff and City Councilwoman Fallon
testified that members of the public could visit the new building for tours and meetings (Doc. No.
90, Ex. B, p. 18, ll. 2-5; Doc. No. 90-4, p. 13, ll. 2-13), it is reasonable to infer that Plaintiff was
concerned not just for her own conditions of employment, but for the safety of any person who
could enter the space, including members of the public.
It is commonsensical that members of the community would be truly concerned with
Plaintiff’s allegations that the City of Charlotte was mismanaging taxpayer dollars and that a new
fire department building was unsafe for both fire department employees and members of the
public. Whether Plaintiff’s allegations were actually true is irrelevant. Liverman v. City of
Petersburg, 844 F.3d 400, 410 (4th Cir. 2016) (“Whether plaintiffs were correct or not in their
views is not the issue.”).
The Building Complaints went beyond personal grievances and
complaints about conditions of employment and addressed matters of public concern.
Moreover, Plaintiff spoke as a private citizen when making these Building Complaints.
Plaintiff testified that her job as a fire investigator was to investigate the cause of fires and write
reports of her findings. (Doc. No. 91-4, p. 8, ll. 14-21). She also assisted fire educators with their
fire education program. (Doc. No. 91-4, p. 8, ll. 23-24). Her Building Complaints, which she sent
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to an elected public official with no employment authority over her, were outside the course of her
official duties and employment responsibilities. Accordingly, because Plaintiff established as a
matter of law that she was speaking as a private citizen on a matter of public concern, she satisfied
the first prong of the McVey test.
B.
Under the McVey test’s second prong, commonly referred to as the Connick/Pickering
balancing test, the Court must determine whether Plaintiff’s interest in speaking upon those matters
outweighed Defendant’s interest in providing effective and efficient services to the public. The
Court “must ‘consider the context in which the speech was made, including the employee’s role
and the extent to which the speech impair[ed] the efficiency of the workplace.’” Grutzmacher,
851 F.3d at 345 (quoting Smith v. Gilchrist, 749 F.3d 302, 309 (4th Cir. 2014).
Factors relevant to this inquiry include whether a public employee’s
speech (1) impaired the maintenance of discipline by supervisors;
(2) impaired harmony among coworkers; (3) damaged close
personal relationships; (4) impeded the performance of the public
employee’s duties; (5) interfered with the operation of the
institution; (6) undermined the mission of the institution; (7) was
communicated to the public or to coworkers in private; (8)
conflicted with the responsibilities of the employee within the
institution; and (9) abused the authority and public accountability
that the employee’s role entailed.
Id. (quoting Ridpath v. Bd. of Governors Marshall Univ., 447 F.3d 292, 317 (4th Cir. 2006)). “[A]
government employer need not prove that the employee’s speech actually disrupted efficiency, but
only that an adverse effect was reasonably to be apprehended.” Id. (quotation marks and citations
omitted).
Defendant argues as a general matter that its interest in the promotion of camaraderie and
efficiency as well as internal harmony and trust outweighs the public interest in Plaintiff’s speech.
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Defendant contends that the jury determined that “the balancing test tipped in [Defendant’s] favor”
by finding it was reasonable to believe the Building Complaints caused, or could have caused,
disharmony or disruption. (Doc. No. 90, p. 10). That argument is not only legally incorrect, in
that the Court, not the jury, balances the competing interests, but it is also factually incorrect, as
Defendant entirely ignores the jury’s additional finding that the Building Complaints did not
impair Plaintiff’s ability to perform her duties, a factor that weighs in Plaintiff’s favor.
In balancing the parties’ interests here, the Court acknowledges that “fire companies have
a strong interest in the promotion of camaraderie and efficiency.” Goldstein, 218 F.3d at 355.
That strong interest, however, even when accorded “substantial weight,” does not necessarily
outweigh a public employee’s interest in the speech. Id. at 356. While this Court accords
substantial weight to CFD’s interest in promoting camaraderie and efficiency, Defendant fails to
point to any specific evidence of actual or potential disruption or disharmony caused by Plaintiff’s
speech. Perhaps that is because it insisted throughout the trial that it was unconcerned with the
Building Complaints and that those in Plaintiff’s chain of command were unaware Plaintiff made
the complaints.
On the other hand, the speech at issue here involved specific allegations of a government’s
mismanagement of public funds as well as issues of health and safety concerns in a building used
by public employees and visited by members of the public. Even if Plaintiff’s allegations were
ultimately untrue, they involved matters of the utmost public concern. When a member of the
public has knowledge that a public building is unsafe or that a government is wasting taxpayer
money, “that person should not be discouraged from so reporting.” Id. at 354. Thus, even though
the jury found that the Building Complaints caused, or could have caused, disruption or
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disharmony in the workplace, Plaintiff’s interest in the speech outweighed Defendant’s
generalized interest in promoting effective and efficient services to the public. Id. at 356
(“[Generalized and unsubstantiated allegations of ‘disruptions’, and predictions thereof, must yield
to the specific allegations made by [the plaintiff] here, which related specifically to the safety of
the public.”). Accordingly, because Plaintiff satisfied the first and second prongs of the McVey
test, the Court concludes that her speech was protected by the First Amendment as a matter of law.
C.
Once a plaintiff establishes that her speech is protected, she must show by a preponderance
of the evidence that the protected speech was a substantial factor in the defendant’s decision to
discharge her. This is a question of fact, and an employer may rebut the showing by establishing
that “it would have discharged the plaintiff ‘even in the absence of the protected [speech].’”
Stroman, 981 F.2d at 156 (quoting Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287
(1977).
Here, the jury specifically found that (1) Plaintiff’s Building Complaints were a
motivating factor in Defendant’s decision to terminate her employment and (2) Defendant would
not have terminated Plaintiff’s employment in the absence of the Building Complaints. (Doc. No.
86). That ends the inquiry.
Defendant nevertheless contends that in dismissing Plaintiff’s claim for First Amendment
Retaliation based on the Facebook Posts, the Court effectively ruled that Defendant would have
fired Plaintiff absent the Building Complaints and that, therefore, the jury’s verdict is inconsistent
with the Court’s prior ruling. (Doc. No. 90, pp. 5-6). First, this issue is not properly before the
Court at this time, as the Court only ordered briefing on the first two prongs of McVey. Regardless,
Defendant wholly misconstrues the Court’s ruling on the Facebook Posts claim. In dismissing that
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claim at the close of all evidence, the Court first ruled as a matter of law that Plaintiff’s Facebook
Posts involved a matter of public concern. (Doc. No. 91-1, p. 28, ll. 17-18). The Court then stated:
“Second, as to the balancing tests, even if the [Facebook Posts] were a motivating factor in
defendant’s decision to terminate plaintiff . . . , the Court concludes as a matter of law that the
plaintiff has not established that [Defendant’s] interest . . . outweighed the plaintiff’s interest . . . .”
(Doc. No. 91-1, pp. 28-29, ll. 19-25, 1-2). At no point did the Court decide whether the Facebook
Posts were a motiving factor in the decision to terminate Plaintiff, nor was the Court required to
do so. See Grutzmacher, 851 F.3d at 348 (declining to reach the third prong of the McVey test
after concluding the plaintiff’s speech was not protected).
Accordingly, the Court rejects
Defendant’s argument and concludes that, based on the jury’s verdict, Plaintiff satisfied the third
prong of the McVey test.3
IV. CONCLUSION
For the reasons explained above, the Court concludes as a matter of law that Plaintiff’s
Building Complaints constituted protected speech under the First Amendment.
IT IS, THEREFORE, ORDERED that Defendant, City of Charlotte’s Motion for Judgment
as a Matter of Law (Doc. No. 89) is DENIED.
Defendant also appears to argue that the evidence does not support the jury’s finding that Defendant would not have
terminated Plaintiff absent her Building Complaints; however, that argument is more appropriate in a post-judgment
motion.
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The Clerk of Court is respectfully directed to enter judgment in this case consistent with
the jury’s verdict.
IT IS SO ORDERED.
Signed: June 2, 2017
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