United States District Court, N.D. Georgia, Atlanta Division
Michael L. Brown United States District Judge
the Court is Gwinnett County Fire and Emergency Services'
Motion for Judgment on the Pleadings. (Dkt. 14).
are two firefighters currently or formerly employed by
Defendant, Gwinnett County Fire and Emergency Services.
Plaintiff Cahn was employed by Defendant for more than 29
years. Compl. ¶ 7. Plaintiff Pishock has been employed
by Defendant for over 15 years and remained employed by
Defendant at the time the lawsuit was filed. Id. at
¶ 10. On June 14, 2016, Plaintiffs filed their complaint
alleging First Amendment retaliation in connection with their
attendance at the Gwinnett County Board of Commissioner's
public budget proposal hearing in July 2014. Id. at
¶¶ 12, 14. Specifically, Plaintiffs allege that
“as a result of [their] attendance at the Board
meeting” (id. at ¶¶ 14(f), 14(n)),
Defendant “harass[ed] Plaintiffs and alleg[ed]
violations of workplace policies, ” as well as denied
them promotional opportunities. Id. at ¶ 18-20.
Plaintiffs seek lost wages and benefits associated with
promotions and other work opportunities they were allegedly
denied, compensatory damages, punitive damages, and
reasonable attorney's fees. Id. at ¶ 21.
filed its answer and then a motion to dismiss on the same
day. (Dkts. 4, 5). The Court denied the motion to dismiss
because it was filed after the responsive pleading, but noted
that “a re-filed motion for judgment on the pleadings
would not delay trial in any meaningful respect and would
afford Plaintiffs a proper opportunity to respond to
Defendant's arguments.” Dkt. 12 at 2. On March 17,
2017, Defendant filed the instant motion for judgment on the
STANDARD OF REVIEW
the pleadings are closed-but early enough not to delay
trial-a party may move for judgment on the pleadings, ”
pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. “Judgment on the pleadings is appropriate
where there are no material facts in dispute and the moving
party is entitled to judgment as a matter of law.”
Palmer & Cay, Inc. v. Marsh & McLennan Cos.,
Inc., 404 F.3d 1297, 1303 (11th Cir. 2005) (internal
quotation omitted). Thus, the standard of review for a motion
for judgment on the pleadings is “almost identical to
that used to decide motions to dismiss.” Doe v. Bd.
of Cnty. Comm'rs, 815 F.Supp. 1448, 1449 (S.D. Fla.
considering a motion for judgment on the pleadings, the Court
must accept all well-pleaded facts in the complaint as true
and draw all reasonable inferences in favor of the plaintiff,
the non-movant. Garfield v. NDC Health Corp., 466
F.3d 1255, 1261 (11th Cir. 2006). However, “the court
need not accept inferences drawn by plaintiffs if such
inferences are unsupported by the facts set out in the
complaint. Nor must the court accept legal conclusions cast
in the form of factual allegations.” Long v. Fulton
Cnty. Sch. Dist., 807 F.Supp.2d 1274, 1282 (N.D.Ga.
2011) (internal quotation omitted). A complaint will survive
judgment on the pleadings if it contains “sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Alt. Corp. v. Twombly, 550 U.S. 544, 555
Plaintiffs have failed to state a claim for First Amendment
state a First Amendment retaliation claim, a plaintiff must
allege three elements: “first, that [plaintiff's]
speech or act was constitutionally protected; second, that
the [government actor's] retaliatory conduct adversely
affected the protected speech; and third, that there is a
causal connection between the retaliatory action and the
adverse effect on speech.” Abella v. Simon,
522 Fed.Appx. 872, 874 (11th Cir. 2013) (quoting Bennett
v. Hendrix, 423 F.3d 1247, 1250 (11th Cir.2005)).
complaint alleges that Plaintiffs “attended the
Gwinnett County Board of Commissioner's public budget
proposal hearing; accompanied by fourteen (14) other
uniformed firefighters.” Dkt. 1 at ¶ 12. And,
“[d]uring the meeting, Plaintiffs neither interacted
with the Board of Commissioners nor interrupted the
functioning of the Board's discussions.”
Id. at ¶ 13. Plaintiffs then allege that
“[f]ollowing attendance of the Board meeting, ”
they began to experience workplace hostility. Id. at
¶ 14. Accordingly, the Complaint alleges that it was
Plaintiffs' attendance at the county commission meeting
that triggered Defendants' alleged retaliatory actions.
See id.; see also Id. at ¶ 14(n)
(“Plaintiff has continuously experienced frequent, and
unwarranted, corrective actions…as a result of
his attendance at the Board meeting.”)
(emphasis added). But, Plaintiffs have not sufficiently
alleged the first element of a retaliation claim - that their
attendance at the county board of commissioner's meeting
implicated constitutionally protected speech or acts.
determining whether a public employee's speech is
entitled to constitutional protection, we must first ask
‘whether the employee spoke as a citizen on a matter of
public concern [as opposed to speaking in his role as a
public employee]. If the answer is no, the employee has no
First Amendment cause of action based on his or her
employer's reaction to the speech.'” Battle
v. Bd. of Regents for Georgia, 468 F.3d 755, 760 (11th
Cir. 2006) (citing Garcetti v. Ceballos, 547 U.S.
410, 421 (2006) (internal citations omitted)). Even
statements made outside the scope of an employee's job
duties may be unprotected by the First Amendment “if
they are made in the role of an employee and not as
‘citizens who do not work for the
government.'” Edwards v. Gwinnett Cty. Pub.
Sch., No. 1:11-CV-2581-TWT, 2012 WL 12835877, at *2
(N.D.Ga. Feb. 23, 2012) (quoting Akins v. Fulton Cnty.,
Georgia, 278 Fed.Appx. 964, 971 (11th Cir. 2008)).
Plaintiffs do not allege that they attended the meeting or
engaged in protected speech in their capacities as citizens,
rather than as public employees. Nor do they plead facts to
plausibly suggest that they attended the meeting in their
capacities as citizens. There are no allegations about
whether Plaintiffs attended the meeting while on-duty or
off-duty. See, e.g., Cox v. Kaelin, 577
Fed.Appx. 306, 311 (5th Cir. 2014) (public employee spoke as
citizen where employee “specifically pleaded that he
never discussed his involvement with the PAC or the upcoming
election during work hours”); Beyer v.
Borough, 428 Fed.Appx. 149, 153 (3d Cir. 2011)
(Plaintiff “alleged facts that he was speaking as a
citizen, rather than as a public employee, ” including
having conducted hours of research “on his time, rather
than pursuant to his duties as a police officer” and
having “posted pseudonymously on an internet site and
not pursuant to his duties as a police officer.”).
There are no allegations about whether Plaintiffs were or
were not instructed by their supervisors to attend the
meeting as part of their official duties. There are no
allegations about how Plaintiffs traveled to the meeting,
whether by driving in their personal cars or in a government
vehicle. There are also no allegations about Plaintiffs'
purpose for attending the meeting, or more specifically,
Plaintiffs' intent to convey a certain message or engage
in certain expressive speech or conduct at the meeting. There
are simply no factual allegations regarding Plaintiffs'
conduct before, during, or after the meeting to permit any
plausible inference that they attended the meeting or spoke
as citizens; Plaintiffs allege only that they attended the
meeting and did not speak at it. Dkt. at ¶¶ 13, ...