Steven Dunbar, a District Chief for the Houston Fire Department (HFD), made a post in a private social media group for HFD firefighters in July 2019. Discussing a transfer opportunity HFD had posted the month before, he wrote: “If you are thinking about putting in for a spot in District 64 on C-shift you better have your sh** together. Wanna play games like previously-assigned members? You will be miserable…promise.”
Under HFD’s transfer guidelines, “No member will communicate with a member requesting a transfer, including the incoming officer, to promote or influence the candidacy of a member or to discourage a member from applying for a posted or anticipated vacancy. Any violation of this directive will result in disciplinary action.” A similar statement was included in the memorandum announcing the transfer opportunity.
HFD Assistant Fire Chief Robert Garcia saw Dunbar’s post and expressed concern about it to HFD Fire Chief Samuel Peña, which ultimately led to Dunbar being transferred to an administrative position in another district. The transfer form filled out by Garcia explained that Dunbar was being transferred because his “social media posts meant to discourage members from transferring to their district compromises the integrity of the HFD transfer policy.”
Soon after Dunbar was transferred, Garcia also asked the HFD Professional Standards Office to investigate Dunbar for creating a hostile work environment through his social media post. The investigation resulted in Dunbar being suspended for three days for violating the transfer guidelines, a suspension that was later reduced to one day. Dunbar has since been assigned to a post as District Chief in a different district.
Dunbar sued Garcia and Peña in their official capacities under 42 U.S.C. § 1983 in federal district court, alleging that they violated his First Amendment speech rights and that HFD’s transfer guidelines are unconstitutional. When a trial court dismissed his lawsuit, Dunbar appealed to the federal Fifth Circuit Court of Appeals.
The Court upheld the dismissal of Dunbar’s suit. The Court began by observing that “to be protected against adverse employment action in retaliation for speech, a public employee must speak in the employee’s ‘capacity as a citizen,’ rather than pursuant to the employee’s ‘official duties,’ and the employee must address a matter of public concern. Otherwise, the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech.
“In this case, Dunbar’s post did not address a matter of public concern. As evidenced by it being posted in a private group for HFD firefighters, Dunbar’s comment on potential transferees’ applications to a particular HFD district was relevant only to HFD employees who might have been considering such a transfer, not to the public generally. Although the post’s subject matter could, in different circumstances, have been the topic of a communication to the public that might be of general interest, it was not under these circumstances.
“For similar reasons, Dunbar’s broader challenge to the constitutionality of the HFD transfer guidelines also fails. A public employer like HFD can adopt policies restricting its employees from speaking on issues that are not of public concern so long as those policies do not unduly restrict other, protected speech. On their face, the transfer guidelines here prohibit only employee-to-employee communications that influence potential transferees’ applications to vacant positions. Dunbar does not argue that HFD’s transfer guidelines prohibit HFD employees from commenting on any public-facing aspects of HFD transfers, such as transfers made to hide corruption within HFD. Because Dunbar has not plausibly alleged that the transfer guidelines prohibit HFD employees from speaking on matters of public concern, the district court properly dismissed Dunbar’s facial challenge to the constitutionality of the transfer guidelines.”
Dunbar v. Pena, 2020 WL 5550994 (5th Cir. 2020).
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