James C. Schuster v. Henry County, Georgia , 281 F. App'x 868 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
-------------------------------------------U.S. COURT OF APPEALS
No. 07-14270 ELEVENTH CIRCUIT
JUNE 10, 2008
Non-Argument Calendar
-------------------------------------------- THOMAS K. KAHN
CLERK
D.C. Docket No. 05-00239-CV-TWT-1
JAMES C. SCHUSTER,
Plaintiff-Appellant,
versus
HENRY COUNTY, GEORGIA,
LINDA ANGUS,
Defendants-Appellees.
------------------------------------------
Appeal from the United States District Court
for the Northern District of Georgia
-------------------------------------------
(June 10, 2008)
Before EDMONDSON, Chief Judge, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant James C. Schuster appeals the grant of summary
judgment in favor of his former employer, Defendant-Appellee Henry County, in
an action brought under section 1983, 42 U.S.C. § 1983, claiming Plaintiff’s
employment was terminated in retaliation for his exercising his First Amendment
rights. No reversible error has been shown; we affirm.
Plaintiff was the Director of Finance for Henry County, and later Henry
County’s Finance Officer for the Special Purpose Local Option Sales Tax
(“SPLOST”) department. According to Plaintiff’s complaint, Plaintiff’s duties as
Director of Finance included ensuring that disbursals from County accounts were
in compliance with County policy, generally accepted accounting principles, and
applicable law. Plaintiff claims he was demoted shortly after he challenged the
propriety under County law of a $40,000 loan made to newly hired County
Manager Linda Angus (provided for in her employment contract) and challenged
also the accounting treatment of a monthly disbursal to Angus of $500.00. About
the latter, Plaintiff argued that the disbursals should be characterized as salary and
made subject to withholding tax unless Angus submitted receipts documenting
actual expenses. Plaintiff also took issue with Angus’s submission of meal
reimbursement vouchers; Plaintiff contended these meals were not reimbursable
under County policy. Plaintiff objected directly to Angus; he took his concerns
also to a County staff attorney, other employees in the finance department, and the
County Commissioner.
2
Two months after the start of Angus’s employment, Angus transferred
Plaintiff to the position of Finance Officer for SPLOST. Plaintiff characterizes
this transfer as a demotion without cause. As SPLOST Finance Officer, Petitioner
voiced objections to the use of funds outside the budgeting process approved by
the Board of Commissioners. Petitioner was scheduled to present his concerns at a
public meeting of the Board of Commissioners; he was removed from the meeting
agenda. Petitioner’s continued efforts to get this matter redressed were defeated
when Angus informed Petitioner that his job had been “eliminated.”
Plaintiff filed this section 1983 complaint alleging that his transfer to
SPLOST and later termination without cause were done in retaliation for Plaintiff
speaking out about matters of public concern, including illegal, unethical and
inappropriate transactions involving County monies.1 The district court concluded
that no First Amendment protection applied.
To establish a claim of retaliation for protected speech under the First
Amendment, a public employee must show, among other things, that the employee
spoke as a citizen addressing a matter of public concern. See Garcetti v. Ceballos,
126 S. Ct. 1951, 1958 (2006). A government employee whose speech is made
1
Plaintiff also asserted state constitutional claims. The district court declined to accept
supplemental jurisdiction over these state claims; the state claims were dismissed without prejudice.
3
pursuant to official responsibilities enjoys no First Amendment protection upon
which a retaliation claim may be founded. See Garcetti, 126 S. Ct. at 1960 (“when
public employees make statements pursuant to their official duties, the employees
are not speaking as citizens for First Amendment purposes, and the Constitution
does not insulate their communications from employer discipline.”); see also
Battle v. Board of Regents for the State of Georgia, 468 F.3d 755, 760 (11th Cir.
2006). And whether the subject speech was made by the public employee
speaking as a citizen or as part of the employee’s job responsibilities is a question
of law that the court decides. See Morris v. Crow, 117 F.3d 449, 455 (11th Cir.
1997).
Plaintiff’s complaint described his job duties as Director of Finance to
include responsibility “for ensuring that disbursals from County accounts were in
compliance with County policy, generally accepted accounting principles, and
applicable law.” And in deposition testimony, Plaintiff explained why he
continued to raise his concerns about Angus’s financial transactions with the
County:
It is my job to make sure that the books are accurate,
credible, so that when we publish financial statements,
they are credible and that the public believes and it’s
properly reported to.
4
Plaintiff averred further:
I have an obligation, a stewardship function in the nature
of the job. I have an obligation as a CPA, as a finance
director, as a professional, to make sure the transactions
are classified properly so the records are accurate so they
maintain the credibility in the public’s eye.
The speech for which Plaintiff claims he suffered retaliation – complaints about
the disbursement of County funds to Angus and the accounting treatment of those
funds – falls within the umbrella of responsibilities Plaintiff identified as his job
duties as Director of Finance. And these complaints were made in the context of
his employment; we recognize that Plaintiff spoke at times outside his usual chain
of command. In the light of Plaintiff’s own statements about his job duties,
together with the context in which Plaintiff sought redress of the irregularities of
which he complained, we believe the district court concluded correctly that
Plaintiff was speaking in his capacity as an employee pursuant to his official
duties.
So too Plaintiff’s complaints about the failure to amend the budget before
reallocating and spending SPLOST funds fell within Plaintiff’s responsibilities as
SPLOST finance manager. Again, the district court concluded correctly that
Plaintiff had a job duty to report improprieties to the Board, even if the discovery
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of such improprieties was no part of the everyday job functions of the position.
See Battle, 468 F.3d at 762 n.6.
Plaintiff seeks to impose a broad exception for high-level accountants from
the constitutional analysis set out in Garcetti and its progeny. According to
Plaintiff, a high-level accountant answers to an higher authority than his nominal
supervisor: the public. But the Supreme Court recognized that a powerful
network of legislative enactments are available to those who seek to expose
wrongdoing; other checks exist on supervisors who might order unlawful or
inappropriate acts. Garcetti, 126 S. Ct. at 1962. We see no basis for excepting
accountants from the Garcetti-Battle analysis. Indeed, the Supreme Court rejected
expressly in Garcetti “the notion that the First Amendment shields from discipline
the expressions employees make pursuant to their professional responsibilities.”
126 S. Ct. at 1962.
Because we conclude that Plaintiff’s speech was speech as an employee
performing his job, his allegation of unconstitutional retaliation must fail.2
AFFIRMED.
2
In his reply appellate brief, Plaintiff waived his claim that he was retaliated against because of
his blogging activity.
6