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Moss v. City of Pembroke Pines

United States Court of Appeals, Eleventh Circuit

March 31, 2015

RICHARD MOSS, Plaintiff-Appellant,
v.
CITY OF PEMBROKE PINES, a Municipality, BOARD OF COMMISSIONERS FOR THE CITY OF PEMBROKE PINES, JOHN PICARELLO, Defendants-Appellees, FRANK C. ORTIS, individually, et al., Defendants

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Southern District of Florida. D.C. Docket No. 0:11-cv-62595-WJZ.

For Richard Moss, Plaintiff - Appellant: Elliot Burt Kula, Kula & Associates, PA, North Miami, FL; Gina M. Cadogan, Cadogan Law, Plantation, FL; William Aaron Daniel, Kula & Samson, LLP, Aventura, FL.

For City of Pembroke Pines, Board of Commissioners, City of Pembroke Pines, Defendants - Appellees: Edmund Bruce Johnson, Michael Thomas Burke, Hudson Carter Gill, Johnson Anselmo Murdoch Burke Piper & Hochman, PA, Fort Lauderdale, FL.

For John Picarello, Defendant - Appellee: Hudson Carter Gill, Johnson Anselmo Murdoch Burke Piper & Hochman, PA, Fort Lauderdale, FL.

Before HULL, JULIE CARNES, and WALKER,[*] Circuit Judges.

OPINION

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JULIE CARNES, Circuit Judge

Plaintiff appeals the district court's order granting defendants judgment as a matter of law on Plaintiff's First Amendment retaliation claim. Plaintiff asserted the claim after being terminated from his position as Assistant Fire Chief of the City of Pembroke Pines (" the City" ). Plaintiff was terminated after the City eliminated the Assistant Fire Chief position for what the City said were budgetary reasons. Plaintiff contends, however, that he was terminated in retaliation for his speaking out about the City's handling of budget and pension issues. After a trial, the district court held that Plaintiff had failed to show that his speech was protected by the First Amendment or that his interest in the speech outweighed the City's interest in avoiding dissension within the fire department. Accordingly, the district court granted judgment as a matter of law. After a careful review of the record, and with the benefit of oral argument, we affirm.

BACKGROUND

The City hired Plaintiff as a firefighter in 1988. Over the next 18 years, Plaintiff steadily moved up the ranks in the City's fire department until he was promoted to the Assistant Fire Chief position in 2006. As the Assistant Fire Chief, Plaintiff was second in command to Fire Chief John Picarello and involved in every aspect of running the fire department. In addition to his regular duties in the fire department, Plaintiff was elected in 2004 to serve on the City's pension board. He remained on the board until he was terminated. Plaintiff's job on the board was to ensure that the pension plan was administered in accordance with the City's ordinance.

During all relevant times, the City's fire department, police department, and general employees had separate collective bargaining agreements between respective unions and the City. Plaintiff joined and was active in the firefighter union between 1989 and 2004, serving on the executive board and then as president of the union in 2003. Throughout this time period, Plaintiff was a member of the fire department's bargaining unit and had rights under the collective bargaining agreement. That ceased, however, when he accepted the Assistant Fire Chief position. As a managerial position, the Assistant Chief position did not permit membership in the bargaining unit or provide for rights under its collective bargaining agreement.

In September 2009, the City approved a budget for the upcoming year that was insufficient to fund the various collective bargaining agreements. The City subsequently sought pension concessions and pay cuts from its employees, claiming that it needed to renegotiate the collective bargaining agreements on the ground of " fiscal urgency." Although he was not directly affected, Plaintiff was critical of the City's handling of the budget and collective bargaining agreement negotiations. Plaintiff claims that he voiced his criticism to Chief Picarello, various fire department employees, and other community members, when he commented on several occasions between January and May 2010 that the City had manufactured the fiscal urgency

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and was negotiating with employees in bad faith.

The Assistant Fire Chief position was eliminated in June 2010, and Plaintiff was terminated. Plaintiff contends that the manner of his termination was unprecedented, as the City had never eliminated a position from the fire department except by attrition. In addition, Plaintiff claims that he was not allowed to apply for a vacancy in the fire department in spite of his history of exemplary evaluations and obvious qualification for the position. Based on these facts, Plaintiff alleges that he was terminated in retaliation for his speech.

Following his termination, Plaintiff filed this ยง 1983 action against the City, the Board of Commissioners, and Chief Picarello. The district court dismissed Plaintiff's claim against the Board as duplicative of his claim against the City, and dismissed his claim against Picarello on the ground of qualified immunity. Plaintiff did not challenge ...


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