Firefighter Loses Free Speech Lawsuit Over Voicemail

Written on 01/05/2023

Scott Millspaugh was a firefighter for Cobb County, Georgia. Millspaugh assisted with the scheduling of staff in his battalion and regularly discussed staffing with his Battalion Chief, John Graham, as part of his job duties. Millspaugh sometimes received notifications from other firefighters regarding their use of leave, and Millspaugh was responsible for finding another firefighter to fill scheduled shifts. He also helped call firefighters to work overtime if they were needed to cover a shift.

On the morning of May 2, 2019, Millspaugh left a voicemail with the assistant for County Commissioner Keli Gambrill. In the voicemail, he stated, “I was wanting to know if you guys knew why there were five fire trucks not operational today in District One. Thank you very much.” Millspaugh was at the fire station, in uniform, and on duty when he left the voicemail. He left the voicemail in hopes of scheduling a meeting to discuss staffing issues in more detail. Millspaugh did not get a call back from Gambrill’s office. This instance was the first time Millspaugh called Gambrill’s office.

In response, the Department demot­ed Millspaugh from Firefighter III to Firefighter II, resulting in a 10% reduction in Millspaugh’s pay. Millspaugh’s annual performance evaluation was changed from “exceeds expectations to meets expectations” because of his voicemail to Gambrill. The reduction of Millspaugh’s performance evaluation negatively affect­ed the percentage of pay raise for which he was eligible the following year.

Millspaugh sued, alleging that his voicemail was speech protected by the First Amendment and a motivating factor in the Defendants’ retaliatory adverse employment actions. The federal 11th Circuit Court of Appeals rejected the lawsuit.

The Court found that “a First Amend­ment retaliation claim requires a four-part analysis. First, we determine whether the plaintiff’s speech was made as a citizen and whether it implicated a matter of public concern. Second, if the plaintiff’s speech was made as a citizen and implicated a matter of public concern, then we weigh the plaintiff’s interests in free speech against the government’s interest in regulating speech to promote the efficiency of the public services it performs through its employees. Third, if the plaintiff’s speech is protected speech, the plaintiff must show that his speech was a substantial motivating factor in the alleged adverse employment action. Finally, if the plaintiff makes this showing, then the burden shifts to the government to prove that it would have performed the adverse action even in the absence of the plaintiff’s speech.

“In this case, it is undisputed that Millspaugh’s speech addressed matters of public concern. Indeed, Millspaugh’s voicemail concerned the staffing and Public Safety Labor News. .7 availability of fire suppression services, which are important issues for the safety of the community, and therefore, matters of public concern.

“We thus must determine whether Millspaugh spoke as a citizen or an em­ployee. And, in analyzing the content, form, and context of his speech as re­vealed by the whole record, we conclude that Millspaugh spoke pursuant to his official duties and his speech owes its existence to his official responsibilities. It is undisputed that ensuring adequate staffing within Millspaugh’s battalion was squarely within his job responsibili­ties and that he often had conversations with supervisors about finding adequate staff to keep their vehicles in operation.

“His voicemail sought to advance his professional responsibilities of securing more staff to operate firetrucks. Mill­spaugh’s attempt to draw a distinction between his day-to-day responsibility in assigning staff to firetrucks and his voicemail purportedly seeking to address a public safety crisis is unpersuasive given the content of the voicemail itself. He plainly did not reference any staffing shortages beyond that particular day, broader public safety concerns, or other policy issues. We therefore conclude this factor weighs against Millspaugh speaking as a citizen.

“Millspaugh harnessed the Depart­ment’s resources by reviewing the status board, which is unavailable to ordinary citizens. And we find Millspaugh’s argu­ment that his use of the status board does not amount to a harnessing of workplace resources because he only used workplace resources to inform, not communicate, unpersuasive. Millspaugh did not state that he was a citizen, and he conveyed information to which only a firefighter would have access.

“Millspaugh’s voicemail arose within the scope of his professional responsibilities and was not protected by the First Amendment.”

Millspaugh v. Cobb County Fire and Emergency Services, 2022 WL 17101337 (11th Cir. 2022).

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