Labor & Employment – Firefighter Fired for Social Media Violations

Grutzmacher v. Howard County (Lawyers Weekly No. 001-074-17, 29 pp.) (Wynn, J.) No. 15-2066, March 20, 2017; USDC at Baltimore, Md. (Garbis, J.) 4th Cir.

Holding: Plaintiff, a county fire department battalion chief terminated for activity on his personal Facebook page the department said “had racial overtones and was insensitive and derogatory in nature” and showed “repeated insolence and insubordination,” in violation of the department’s social media policy, is not entitled to a trial of his First Amendment retaliation claim; the 4th Circuit affirms summary judgment for the department in plaintiff’s suit under 42 U.S.C. § 1983.

Public Concern

At least some of plaintiff’s Facebook activity referenced in the department’s charging document touched on issues of public concern. In particular, plaintiff’s Jan. 20, 2013, discussion of “liberal[s]” and “assault liberal[s]” was, according to an expert report submitted by plaintiff, a commentary on gun control legislation using a “lexicon that is extremely common in contemporary American gun culture.” The report maintains that plaintiff’s exchange reflects a “well-known meta-narrative” under which “liberal” is a “collectivist ideologue, a statist, who believes in the absolute power of government even at the expense of individual autonomy and rights, including an individual’s right to own, carry and use firearms.” Courts have long recognized that the debate over the propriety of gun control legislation is a matter of public concern.

Likewise, plaintiff’s Jan. 23, 2013, post describing the Department of Social Media Guidelines and expressing concern that those guidelines infringed on plaintiff’s First Amendment rights also addressed a matter of public concern. Because the public has interest in receiving the “informed” opinions of public employees, it necessarily also has an interest in information about policies that circumscribe public employees’ speech and public employees’ opinions of such policies.

Private Grievance

However, we also acknowledge that some of the Facebook activity prompting plaintiff’s termination did not implicate matters of public concern. For instance, plaintiff’s “like” of the image depicting an elderly woman raising her middle finger and entitled “for you Chief” – on the heels of the department’s investigation into plaintiff’s Jan. 20 and Jan. 23 Facebook activity – amounted to no more than an employee grievance not protected by the First Amendment.

Whether a series of related posts and “likes” over a several-week period to a dynamic social networking platform – like the posts and “likes” that prompted plaintiff’s termination – constitute “a single expression of speech” is an open question. Rather than resolve that unsettled question, we will weigh whatever public interest commentary may be contained in plaintiff’s Facebook activity against the department’s dual interest as a provider of public service whose employees are hired to provide that service.

Balancing Interests

We conclude that the department’s interest in efficiency and preventing disruption outweighed plaintiff’s interest in speaking in the manner he did regarding gun control and the department’s social media policy. His Facebook activity interfered with and impaired department operations and discipline as well as working relationships within the department. Three African-American employees within the department approached the president of the Howard County affiliate of the International Association of Black Professional Firefighters about the posts, with one stating, “I don’t want to work for [plaintiff] any more. I don’t trust him.”

Plaintiff’s Facebook activity also significantly conflicted with his responsibilities as a battalion chief, which required that he act as an impartial decision maker. The record demonstrates that plaintiff’s actions led to concerns regarding plaintiff’s fitness as a supervisor and role model. By flouting department policies he was expected to enforce, plaintiff violated his employees’ trust. His speech also frustrated the department’s public safety mission and threatened “community trust” in the department.

Plaintiff’s Jan. 20 post, made while he was on duty and in his office, advocated violence to certain classes of people and advocated using violence to effect a political agenda. The department reasonably was concerned that plaintiff’s Facebook activity – particularly his “like” of a volunteer paramedic’s comment regarding “black ones” as potential targets of violence – could be interpreted as supporting racism or bias. Plaintiff’s speech – particularly his “like” of the image depicting a woman raising her middle finger, expressly disrespected his superiors. The disrespectful and insubordinate tone of plaintiff’s relevant Facebook activity also weighs in the department’s favor.

We conclude the department’s interest in workplace efficiency and preventing disruption outweighed the public interest commentary on gun control and the department’s social media policy contained in plaintiff’s Facebook activity.

We affirm the dismissal of plaintiff’s facial challenge to the social media policy, which the department revised to remove many of the earlier version’s prohibitions.