Goldstein v. Chestnut Ridge , 218 F.3d 337 ( 2000 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SCOTT GOLDSTEIN,
Plaintiff-Appellant,
v.
THE CHESTNUT RIDGE VOLUNTEER
FIRE COMPANY; RICHARD YAFFEE;
No. 99-1089
ROSS MCCAUSLAND; HARRY KAKEL;
WILLIAM NEWBERREY, III; MICHAEL
FOX; EUGENE REYNOLDS; NICK
CORONEOS,
Defendants-Appellees.
SCOTT GOLDSTEIN,
Plaintiff-Appellee,
v.
THE CHESTNUT RIDGE VOLUNTEER
FIRE COMPANY; RICHARD YAFFEE;
No. 99-1180
ROSS MCCAUSLAND; HARRY KAKEL;
WILLIAM NEWBERREY, III; MICHAEL
FOX; EUGENE REYNOLDS; NICK
CORONEOS,
Defendants-Appellants.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CA-96-1483-JFM)
Argued: December 3, 1999
Decided: July 12, 2000
Before WILKINSON, Chief Judge, KING, Circuit Judge,
and BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Judgment affirmed by published opinion. Judge King wrote the opin-
ion for the Court, in which Senior Judge Butzner joined. Chief Judge
Wilkinson wrote a separate opinion concurring in part and concurring
in the judgment.
_________________________________________________________________
COUNSEL
ARGUED: Charles Grant Byrd, Jr., ALSTON & BYRD, Baltimore,
Maryland, for Appellant. Jo Anna Schmidt, LAW OFFICE OF HAR-
OLD A. MACLAUGHLIN, Baltimore, Maryland; Roger Norman
Powell, POWELL AND SORRELL, Pikesville, Maryland, for Appel-
lees.
_________________________________________________________________
OPINION
KING, Circuit Judge:
Plaintiff Scott H. Goldstein appeals the district court's entry of
summary judgment in favor of the Chestnut Ridge Volunteer Fire
Company ("Chestnut Ridge" or "the company") and the individual
members of its Executive Committee, the defendants below. Mr.
Goldstein alleges that he was suspended and later terminated from
Chestnut Ridge based on the substance of his speech, in violation of
the First Amendment. Inasmuch as Goldstein premises his cause of
action against this entity and these individuals upon the First Amend-
ment, we must first determine whether Chestnut Ridge's decisions to
suspend and to terminate him were under color of law for purposes
of 42 U.S.C. § 1983. If so, we then must ascertain whether the district
court properly concluded that Goldstein cannot establish a violation
of the First Amendment.
2
With respect to the first question, we hold that Chestnut Ridge, a
volunteer fire department in Maryland, is a state actor. We do so
because Chestnut Ridge is: (1) carrying out functions, exercising
powers, and benefitting from protections traditionally and exclusively
reserved to the state; (2) receiving substantial state assistance; (3) sub-
ject to extensive state regulation; and (4) considered to be a state actor
by the state itself. In the totality of the circumstances, Chestnut Ridge
is a state actor whose actions must comport with the First Amendment.1
However, in considering the second issue, we conclude that Gold-
stein cannot establish a prima facie violation of the First Amendment.
Although his speech incorporated matters of public concern, which is
protected speech, and although Chestnut Ridge's interests do not out-
weigh the public interest in the substance of Goldstein's protected
speech, Goldstein cannot establish that his protected speech was a
substantial factor in Chestnut Ridge's decisions to take adverse
employment actions against him. For that reason, we must affirm the
district court's award of summary judgment to the defendants.
I.
Mr. Goldstein was suspended from the company on March 15,
1996, by Richard Yaffee, President of Chestnut Ridge, and on March
21, 1996, his suspension was upheld by a vote of the Executive Com-
mittee. Goldstein's suspension followed his admitted failure to abide
by an agreement to bring complaints to Yaffee before submitting
them directly to the Executive Committee. On August 29, 1996, while
on suspension, Goldstein was terminated from the company, based on
_________________________________________________________________
1 U.S. Const. amend. I provides:
Congress shall make no law respecting an establishment of reli-
gion, or prohibiting the free exercise thereof; or abridging the
freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a
redress of grievances.
The First Amendment has been "incorporated" into the Fourteenth
Amendment and thereby made applicable against the states. Stromberg
v. California, 283 U.S. 359, 368 (1931); Cantwell v. Connecticut, 310
U.S. 296, 303 (1940).
3
his submission of allegedly false safety certifications on behalf of
other company members. On May 10, 1996, after his suspension but
before his termination, Goldstein filed this action in the District of
Maryland. The case proceeded through discovery and, following the
filing of motions and briefs, the district court granted Goldstein par-
tial summary judgment, holding that Chestnut Ridge is a state actor
for purposes of 42 U.S.C. § 1983.2 See Goldstein v. Chestnut Ridge
Volunteer Fire Co., 984 F. Supp. 367, 372 (D. Md. 1997).
The district court, on November 13, 1997, certified the state action
issue under 28 U.S.C. § 1292(b), but we declined Chestnut Ridge's
petition for an interlocutory appeal. The district court then considered
cross-motions for summary judgment on the merits and, on January
7, 1999, held that Goldstein's suspension and dismissal did not offend
the First Amendment. Accordingly, the court entered summary judg-
ment in favor of the defendants.
We possess jurisdiction over Goldstein's appeal pursuant to 28
U.S.C. § 1291. Before we may address the merits of Goldstein's First
Amendment claim, we first must ascertain whether Chestnut Ridge
acted under color of law within the meaning of 42 U.S.C. § 1983.
II.
We review the grant of summary judgment de novo. Myers v.
Finkle, 950 F.2d 165, 167 (4th Cir. 1991). Summary judgment is
appropriate only "if the pleadings, depositions, answers to interroga-
tories, and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact." Fed. R.
Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In
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2 On August 21, 1997, the district court entered an initial order relating
to the summary judgment motions, which both granted partial summary
judgment to Goldstein and certified the issue for interlocutory appeal
under 28 U.S.C. § 1292(b). Chestnut Ridge then moved to alter or amend
the initial order, in response to which the district court rescinded its order
insofar as it certified the case for interlocutory appeal. On November 13,
1997, the district court granted the motion to reconsider only to a limited
degree (irrelevant for these purposes), re-entered a summary judgment
order, and published its opinion.
4
determining whether a party is entitled to summary judgment, the evi-
dence is viewed in the light most favorable to the nonmoving party.
Myers, 950 F.2d at 167.
III.
A.
With few exceptions, constitutional guarantees, including those of
individual liberty and equal protection, "do not apply to the actions
of private entities." Edmonson v. Leesville Concrete Co., Inc., 500
U.S. 614, 619 (1991). While this limitation on the reach of the Consti-
tution is fundamental to our federal system, it is not without bounda-
ries. Indeed, were this limitation boundless, states, government
agencies, and government officials could avoid constitutional limits
and obligations by simply delegating core governmental functions to
private actors. This victory of form over substance is not permitted
under the guise of federalism; thus, where "governmental authority
. . . dominate[s] an activity to such an extent that its participants must
be deemed to act with the authority of the government[, the ostensibly
private participants are] subject to constitutional constraints." Id. at
620.
Mirroring this pragmatic scheme, section 1983 of Title 42 pro-
vides, in pertinent part, that
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . ., subjects, or
causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the depriva-
tion of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding
for redress.
42 U.S.C. § 1983. This statute, promulgated as part of the Civil
Rights Act of 1871,3 provides"the party injured" with a cause of
_________________________________________________________________
3 Ngiraingas v. Sanchez, 495 U.S. 182, 187 (1990) (" `Section 1983
was originally enacted as § 1 of the Civil Rights Act of 1871. The Act
was enacted for the purpose of enforcing the provisions of the Fourteenth
Amendment.'") (quoting Quern v. Jordan, 440 U.S. 332, 354 (1979)
(Brennan, J., concurring in judgment)).
5
action for violations of constitutional rights by"every person," that is,
both private persons and private entities, but liability is imposed only
for deprivations carried out under color of law. Flagg Bros., Inc. v.
Brooks, 436 U.S. 149, 156 (1978). "In cases construing section 1983,
`under color' of law has been treated consistently as equivalent to the
`state action' requirement under the Fourteenth Amendment." Haavis-
tola v. Community Fire Co. of Rising Sun, Inc., 6 F.3d 211, 215 (4th
Cir. 1993) (citing Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982)).
As the Supreme Court recently reaffirmed, two principles guide
state action determinations:
[S]tate action requires both an alleged constitutional depri-
vation "caused by the exercise of some right or privilege
created by the State or by a rule of conduct imposed by the
State or by a person for whom the State is responsible" and
that "the party charged with the deprivation must be a per-
son who may fairly be said to be a state actor."
American Manufacturers Mut. Ins. Co. v. Sullivan , 526 U.S. 40, 50
(1999) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937
(1982)).4 In this case, our analysis of state action turns on whether
Chestnut Ridge and the members of its Executive Committee "may
fairly be said to be . . . state actor[s]." American Manufacturers, 526
U.S. at 50.
A handful of contexts have been identified in which we can be con-
fident that the conduct of an ostensibly private actor is under color of
law for purposes of section 1983. The first exists where, "`in light of
all the circumstances,' . . . the Government did more than adopt a pas-
sive position toward the underlying private conduct." Skinner v. Rail-
way Labor Executives' Assoc., 489 U.S. 602, 614-15 (1989) (quoting
_________________________________________________________________
4 As noted by the Supreme Court in Lugar v. Edmondson Oil Co., Inc.,
457 U.S. 922, 937 (1982), the two principles "collapse into each other
when the claim of a constitutional deprivation is directed against a party
whose official character is such as to lend the weight of the State to his
decisions." As discussed below, the official character of Chestnut Ridge
and its Executive Committee members precipitates such a merger of
these principles here.
6
Coolidge v. New Hampshire, 403 U.S. 443, 487 (1971)); see also
Andrews v. Federal Home Loan Bank of Atlanta, 998 F.2d 214, 217
(4th Cir. 1993). In that situation, a "private party should be deemed
an agent or instrumentality of the Government." Skinner, 489 U.S. at
614; see also Peterson v. City of Greenville, 373 U.S. 244, 248 (1963)
(finding state action where restaurant excluded patrons based on their
race, in compliance with local ordinance); Adickes v. S.H. Kress &
Co., 398 U.S. 144, 171 (1970) (holding that private entity acts under
color of law if private action was "because of a state-enforced cus-
tom"). Second, if the state delegates its obligations to a private actor,
the acts conducted in pursuit of those delegated obligations are under
color of law. See West v. Atkins, 487 U.S. 42, 54 (1988) (holding that
physician, who treated inmates pursuant to part-time contract, was
fulfilling state's Eighth Amendment obligations and therefore acted
under color of state law); see also Andrews, 998 F.2d at 217. Third,
"[o]ne of the paradigmatic means by which a private party becomes
subject to section 1983 is through the government's conferral upon
that party of what is, at core, sovereign power." United Auto Workers
v. Gaston Festivals, Inc., 43 F.3d 902, 906 (4th Cir. 1995). In other
words, a private actor is responsible as a state actor if "the function
performed [is] traditionally the exclusive prerogative of the State." Id.
(quotation and citation omitted). Fourth, "private use of . . . chal-
lenged state procedures with the help of state officials constitutes state
action." Lugar, 457 U.S. at 933; see also Andrews, 998 F.2d at 217
("A private party can be deemed a state actor . .. when the state has
committed an unconstitutional act in the course of enforcing a right
of a private citizen.").
At bottom, the state action determination requires an examination
of all the relevant circumstances, in an attempt to evaluate "the degree
of the Government's participation in the private party's activities."
Skinner, 489 U.S. at 614 ("Whether a private party should be deemed
an agent or instrument of the Government for Fourth Amendment
purposes necessarily turns on the degree of the Government's partici-
pation in the private party's activities, a question that can only be
resolved in light of all the circumstances.") (quotations and citations
omitted); Evans v. Newton, 382 U.S. 296, 299-300 (1966) ("Only by
sifting facts and weighing circumstances can we determine whether
the reach of the Fourteenth Amendment extends to a particular case.")
(quoting Burton v. Wilmington Parking Authority , 365 U.S. 715, 722
7
(1961)); see also Hicks v. Southern Maryland Health Systems Agency,
737 F.2d 399, 402 n.3 (4th Cir. 1984) ("[T]here is no specific formula
for determining state action.") (quoting Howerton v. Gabica, 708 F.2d
380, 383 (9th Cir. 1983)). In this regard, we have also considered,
inter alia, (1) "whether the injury caused is aggravated in a unique
way by the incidents of governmental authority," Edmonson, 500 U.S.
at 622 (citing Shelley v. Kraemer, 334 U.S. 1 (1948)); (2) the extent
and nature of public assistance and public benefits accorded the pri-
vate entity, Edmonson, 500 U.S. at 621 (citing Tulsa Professional
Collection Services, Inc. v. Pope, 485 U.S. 478 (1988)); (3) the extent
and nature of governmental regulation over the institution, American
Manufacturers, 526 U.S. at 52; Haavistola , 6 F.3d at 215; and (4)
how the state itself views the entity, i.e., whether the state itself
regards the actor as a state actor. See Jackson v. Metropolitan Edison
Co., 419 U.S. 345, 352-53 (1974); Haavistola , 6 F.3d at 216-17. We
must underscore that none of these factors, in isolation, establishes
state action. However, in the totality of the circumstances, these fac-
tors inform our resolution of state action questions.
In short, "the Court has articulated a number of different factors or
tests in different contexts," and the facts "which would convert the
private party into a state actor [vary] with the circumstances of the
case." Lugar, 457 U.S. at 939.
B.
1.
Turning to this case, it is undisputed that Chestnut Ridge is a non-
profit Maryland corporation operating under its own constitution and
bylaws; it owns the land and building from which it operates; and it
holds title to the engines, hoses, and related equipment employed in
its fire suppression and rescue activities. In addition, the company
elects its own officers and directors, who are responsible for running
the company. These facts notwithstanding, there are numerous cir-
cumstances present in this case mandating our conclusion that Chest-
nut Ridge's personnel decisions are made under color of law.
8
2.
a.
We first consider the argument raised by Goldstein below: that
Chestnut Ridge is performing a function -- firefighting -- that is tra-
ditionally and exclusively a governmental function. Although the
Supreme Court has not specifically addressed whether fire protection
constitutes a traditional and exclusive state action per se, the Court's
treatment of the issue acknowledges, at the very least, "that fire pro-
tection may be an exclusive state function." Haavistola, 6 F.3d at 216
n.1. See Evans, 382 U.S. at 302 ("A park . . . is more like a fire
department or police department that traditionally serves the commu-
nity."); Flagg Bros., 436 U.S. at 163-64 ("[W]e would be remiss if we
did not note that there are a number of state and municipal functions
not covered by our election cases or governed by the reasoning of
Marsh[ v. Alabama, 326 U.S. 501 (1946),] which have been adminis-
tered with a greater degree of exclusivity by States and municipalities
than has the function of so-called `dispute resolution.' Among these
are such functions as education, fire and police protection, and tax
collection. We express no view as to the extent, if any, to which a city
or State might be free to delegate to private parties the performance
of such functions and thereby avoid the strictures of the Fourteenth
Amendment.").
In that vein, we have identified and discussed, on several occa-
sions, the unique role of firefighters -- without actually resolving
whether firefighting is traditionally and exclusively a governmental
function. See Adams v. Bain, 697 F.2d 1213, 1217-18 (4th Cir. 1982)
(reversing dismissal as premature because fact-specific determination
of whether volunteer fire department was state actor could not be
made on face of complaint); Kreiger v. Bethesda-Chevy Chase Rescue
Squad, 599 F. Supp. 770, 773-74 (D. Md. 1984) (noting that "fire-
fighting is traditionally an exclusively public function" but holding
that rescue squad was not "engaged in the public function of firefight-
ing"), aff'd, 792 F.2d 139 (4th Cir. 1986) (unpublished disposition);
Haavistola, 6 F.3d at 218-19, 222 (reversing summary judgment
granted "on unsubstantiated judicial notice" that volunteer fire depart-
ments in Maryland were not state actors and remanding for "fact-
9
intensive determinations");5 Goldstein v. Chestnut Ridge Volunteer
Fire Co., 1994 WL 233356, at *2 (4th Cir. 1994) (unpublished dispo-
sition) (holding that "the question whether fire fighting is traditionally
an exclusive governmental function in Maryland could not be prop-
erly decided as a matter of law on the record [there present], but
require[d] resolution of genuine issues of fact raised by conflicting
historical evidence").6 From these prior cases, we may distill two
themes: (1) whether firefighting is a traditionally and exclusively gov-
ernmental function is still an open question, and (2) the determination
of whether volunteer firefighting constitutes state action in Maryland
is a fact-specific inquiry. There is no doubt that, as the district court
noted, the current state of law on this issue might be characterized as
"perplexing."7 Goldstein, 984 F. Supp. at 369 n.2.
On one hand, it is difficult to conceive of a service associated more
closely with the state than the provision of fire protection services; on
the other hand, any private citizen may assist in the suppression of a
fire without being bound by the First Amendment. However, we need
not determine here whether firefighting, in the abstract, is a tradition-
ally exclusively governmental function, because Goldstein has sub-
mitted evidence sufficient to establish that firefighting has been
exclusively and traditionally the function of the government in Mary-
_________________________________________________________________
5 After remand in Haavistola , a trial was conducted in which a jury
returned a verdict finding that the volunteer fire department at issue there
was not a state actor. Goldstein, 984 F. Supp. at 368. The plaintiff did
not appeal the verdict, and we therefore had no opportunity to review the
issue.
6 This earlier case "was instituted by Ivan Goldstein, the father of [Scott
Goldstein,] the plaintiff in the present action. The case was voluntarily
dismissed by the plaintiff after remand." Goldstein, 984 F. Supp. at 368
n.1.
7 While we seek to clarify this point below, we pause to note that the
district court was correct to make this determination -- whether Chestnut
Ridge is a state actor -- as a matter of law. See Blum v. Yarestsky, 457
U.S. 991, 997 (1982) (describing "whether there is state action" as one
of "several issues of law"). Of course, this determination need not always
be made on summary judgment, nor do we mandate that factual disputes
underlying this decision be resolved by the court. Rather, the ultimate
resolution of whether an actor was a state actor or functioning under
color of law is a question of law for the court.
10
land. Among other things, Goldstein's expert -- whose opinion was
uncontradicted below -- maintained that "`within a reasonable degree
of Maryland historical certainty and probability that fire fighting was
traditionally an exclusive public function in Baltimore County, Mary-
land.'" Goldstein, 984 F. Supp. at 371. This expert supported his
opinion with "various historical facts," which the district court sum-
marized as follows:
First, prior to 1881 organized fire protection in the most
populous area of Baltimore County, known as "the Belt,"
had (with one exception) depended upon the services of Bal-
timore City units from contiguous areas. Second, in 1881
the Baltimore County Fire Department was established.
Third, the Waverly Fire Company, the exception just noted,
which had been created in 1878 when the county financed
the construction of its building and the purchase of its fire
equipment, turned over its property to the county's Fire
Commissioner when the County Fire Department was estab-
lished in 1881. Finally, in the years after its establishment
the County Fire Department rapidly grew.
Id. Under these facts, the State of Maryland was the exclusive pro-
vider of firefighting services until it effectively delegated that func-
tion to state-funded private actors. These uncontradicted facts and
expert testimony thus clearly establish the first element of the state
action determination: Chestnut Ridge has assumed a function -- fire-
fighting -- that has traditionally been the exclusive function of the
state.
b.
Insofar as the Supreme Court has admonished the lower courts to
examine the totality of the circumstances, see cases cited supra at 6-
7, those circumstances reinforce a finding of state action here. Thus,
to the extent that there could be any doubt that Chestnut Ridge is ful-
filling functions that have traditionally and exclusively been the prov-
ince of the state -- and we have none -- such doubts are assuaged
by the incidents of sovereignty that have been heaped upon Chestnut
Ridge. For example, the members of Chestnut Ridge have the author-
ity:
11
(1) to enter buildings "without liability for trespass" where
a fire is in progress or "there is reasonable cause to believe
a fire is in progress";
(2) to enter any building near a fire to protect it from fire;
(3) to order any person to leave any building or place in the
"vicinity of a fire or other emergency" to protect the person
from danger;
(4) to order that caravans of vehicles, crafts or railway cars
be detached in the interest of safety; and
(5) to maintain order in the "vicinity of a fire or other emer-
gency" by exerting police powers in the area.
See Md. Code Ann. art. 48, § 181 (1999). In addition, members of
Chestnut Ridge may be deputized as "deputy sheriffs" and thereby
"exercise the powers of such deputies at fires and on the way to and
from fires." See Md. Code Ann. art. 87,§ 49. Further, volunteer fire
companies -- including members of Chestnut Ridge-- are immune
from civil liability for acts taken in the performance of their duties.
Md. Code Ann., Cts. & Jud. Proc. § 5-604 (1999).
c.
Chestnut Ridge thus has been cloaked by the sovereign with immu-
nity and endowed with police powers traditionally reserved exclu-
sively to the state. A private party may not, on one hand, function in
the exclusive province of the state, exercise powers reserved to the
state, and benefit from protections reserved to the state, while on the
other hand, act without regard to the Constitution. We thus are confi-
dent that Chestnut Ridge is performing functions and exercising
"powers traditionally exclusively reserved to the State." Andrews, 998
F.2d at 218 (quoting Jackson, 419 U.S. at 352).
3.
In addition to the foregoing, there are other circumstances sur-
rounding the operation and function of Chestnut Ridge that reinforce
12
our finding that it is a state actor. For example, Chestnut Ridge
receives substantial assistance from, and is regulated extensively by,
the State of Maryland. Indeed, the district court thoroughly explained
this aspect of the case as follows:
Career and volunteer fire companies in Baltimore County
are dispatched to fire scenes by a central county dispatcher.
The factors considered by the dispatcher in determining
whom to call are the location and severity of the fire or
emergency event. At the fire scene, volunteer fire companies
are sometimes in command over career fire companies,
while on other occasions career and volunteer fire compa-
nies share command at the scene.
Chestnut Ridge (like all volunteer fire companies in Balti-
more County) is a member of the Baltimore County Volun-
teer Fire Association ("BCVFA"). The BCVFA requires that
volunteer firefighters have certain types of certification
and/or training before they fight a fire in the county. These
are the same types of certification and training that the Balti-
more County Fire Department requires of its career fire-
fighters. If a volunteer fire company's members fail to meet
those requirements, the volunteer company will be sus-
pended from the BCVFA. If the volunteer fire company is
suspended, the Baltimore County Fire Department will take
the volunteer fire company off its dispatch system and will
not dispatch that volunteer fire company to fight any fires
in the county.
***
Article 38A, section 7 of the Maryland Code establishes
the Office of the Fire Marshal, whose responsibilities
include "the establishment and enforcement of fire safety
practices throughout the State, preventive inspection and
correction activities, coordination of fire safety programs
with volunteer and paid fire companies, and other State
agencies and political subdivisions exercising enforcement
aspects, and critical analysis and evaluation of Maryland fire
loss statistics for determination of problems and solutions."
13
Md. Ann. Code art. 38A, § 7(b) (1997). In addition, the
Maryland State Firemen's Association, a state-funded asso-
ciation, conducts annual inspections of all fire and rescue
apparatus, equipment, and facilities. Md. Ann. Code art.
38A, § 46B.
State-funded training is required for volunteer fire com-
pany members, and is conducted by the Maryland Fire and
Rescue Institute at the University of Maryland, a state insti-
tution. Md. Code Ann., Educ. § 13-103 (1997) .. . . Chest-
nut Ridge's ambulance service is required to be licensed
under section 13-515 of Maryland's education code. State
grants and loans to volunteer fire companies, including
Chestnut Ridge, are made through the Emergency Assis-
tance Trust Fund and approved and monitored by State
agencies. Md. Ann. Code art. 38A, § 46A.
Volunteer fire departments, including Chestnut Ridge,
receive significant portions of their operating revenue from
the State of Maryland. For example, Chestnut [Ridge]
receives State funding that is appropriated by the State to
promote:
(1) The delivery of effective and high quality
fire protection, rescue, and ambulance services to
the citizens of this State;
(2) Increased financial support for fire, rescue,
and ambulance companies by local governments;
and
(3) The continued financial viability of volun-
teer fire, rescue, and ambulance companies given
the greatly increased costs of apparatus and other
types of equipment.
Md. Ann. Code art. 38A, § 45B. Payments under this statute
are made to each county for distribution to fire companies
for the purchase of equipment and rehabilitation of facilities.
14
Id. Funds distributed to fire companies under this statute are
conditioned upon compliance with a requirement that they
be audited and copies of the account be submitted to a State
agency. Md. Ann. Code art. 38A, §§ 45C-D. Chestnut Ridge
receives operating revenue from the State and Baltimore
County governments, and uses these funds for items such as
insurance, utilities and fuel.
Under Maryland and Baltimore County law, grants and
loans are also provided for volunteer fire companies. See,
e.g., Baltimore County Code §§ 15-161 et seq. (1988).
Members of volunteer fire companies are covered under
State and county benefit plans. See, e.g., Md. Ann. Code art.
38A, §§ 42-42B (disability benefits); Md. Code Ann., Lab.
& Empl. § 9-234 (1991 & Supp. 1996) (workers' compensa-
tion); Md. Ann. Code art. 48A, § 425 (1994) (group life
insurance); Baltimore County Code § 23-147 (pensions).
Volunteer firefighters are considered on duty for purposes of
the Public Safety Officer's Benefit Act. Md. Ann. Code art.
38A, § 45. Volunteer fire companies and firefighters receive
several tax benefits and exemptions, see, e.g., Md. Code
Ann., Tax-Prop. § 7-209 (1994), and are exempt from pay-
ing State and county fees that other private corporations are
required to pay. Md. Code Ann., Corps. & Ass'ns§ 1-203.1
(1993).
Goldstein, 984 F. Supp. at 369-70.
Of course, "receipt of state funds alone is insufficient to transform
private actions into state actions," and state regulation unrelated to the
alleged constitutional violation, even if extensive, is not sufficient, in
itself, to effect this transformation. Haavistola, 6 F.3d at 215 (quoting
Alcena v. Raine, 692 F. Supp. 261, 267 (S.D.N.Y. 1988)). Nonethe-
less, substantial state funding and extensive state regulation -- clearly
present in this case -- are factors that weigh in favor of a finding of
state action.
4.
Another factor relevant to the state actor determination is how the
state itself views the entity. In Jackson, 419 U.S. at 353, for example,
15
the Supreme Court relied upon, inter alia, Pennsylvania's view of the
function of an electric company in holding that the provision of elec-
tric service did not constitute state action. Similarly, we have recog-
nized that the determination of state action based on the actor's
adoption of a "traditionally exclusively government function" "hinges
on how a given state itself views the conduct of the function by the
private entity." Haavistola, 6 F.3d at 218.
In this area, Maryland authority is clear: the State of Maryland
regards Chestnut Ridge as a state actor. Maryland courts, for example,
have consistently recognized that "firefighting is a governmental
function to which immunity would attach if the appellee were a gov-
ernment agency . . . ." Utica Mut. Ins. Co. v. Gaithersburg-
Washington Grove Fire Dept., Inc., 455 A.2d 987, 991 (Md. Ct. Spec.
App. 1983), superseded by statute as stated in Chase v. Mayor and
City Council of Baltimore, 730 A.2d 239, 247-48 (1999). This recog-
nition was underscored in Potter v. Bethesda Fire Dept., 524 A.2d 61,
63 (Md. 1987), in which the Maryland Court of Appeals was called
upon to decide whether volunteer fire departments in Maryland were
"quasi-public corporation[s]." The Court of Appeals defined a quasi-
public corporation by reference to 1 W. Fletcher & C. Swearingen,
Cyclopedia of the Law of Private Corporations § 63 (1983 Rev. Vol.):
"[T]he nature of the business conducted [by a private corporation]
may . . . become so affected with a public interest that the corporation
thus becomes quasi-public." And, after examining the rights, duties,
and public assistance afforded volunteer fire companies, the Court of
Appeals concluded:
These examples of the supervision, oversight and control on
the part of the government clearly indicate the peculiarly
public nature of the duties performed by the "private" fire
corporations in Montgomery County[, Maryland]. They also
show that such corporations are, in fact, governmental in
nature.
Potter, 524 A.2d at 68-69. In other words, the State of Maryland itself
considers volunteer fire companies, like Chestnut Ridge, to be state
actors, and although not dispositive, this fact militates in favor of our
finding of state action.
16
5.
One final consideration, often arising in the resolution of state
action questions, is whether there must be a nexus between the indicia
of state action and the specific acts comprising the alleged constitu-
tional violation. That is, under some of the circumstances set forth
above, we have required that the plaintiff establish a connection
between the color of law and the alleged violation of the Constitution.
In Skinner, for example, a railroad's act of testing a group of employ-
ees for the presence of drugs or alcohol was held to be under color
of law because there was a direct nexus between the testing and fed-
eral regulations authorizing the railroad's testing. Skinner, 489 U.S.
at 615-16.
There are, however, different considerations at stake once it has
been determined that an actor is carrying out functions traditionally
and exclusively reserved to the state. We thus conclude that when it
has been established that the State has empowered, or is permitting,
a private actor to homestead on territory that has heretofore been the
exclusive, traditional province of the State, there need be no specific
demonstration of a nexus to the alleged constitutional violation. We
previously recognized that requiring such a nexus under these circum-
stances would represent an untoward leap of logic:"If the [actor]
were held to be performing a public function for purposes of state
action doctrine, then it would be difficult to conclude that personnel
decisions reached during the performance of that public function were
not subject to constitutional strictures." Andrews, 998 F.2d at 219 n.1;
see also supra note 4.
We believe the logic of Andrews -- that no nexus is required
under these circumstances -- is correct. The "public function" test is
so "carefully confined" that we need not worry that the absence of a
nexus requirement will subject actors to inappropriate liability as a
state actor. See Flagg Bros., 436 U.S. at 163. Indeed "[s]tate action
via the private exercise of public functions . . . has been found in only
narrow circumstances." Andrews, 998 F.2d at 218. Thus, Chestnut
Ridge may be held liable as a state actor without the demonstration
of a nexus -- a connection between the indicia of state action and the
specific acts comprising the alleged constitutional violation -- that
has been required in other contexts.
17
6.
We thus hold today that Chestnut Ridge, a volunteer fire depart-
ment in the State of Maryland, is a state actor. Our conclusion is con-
sistent with and supported by the holding of the Second Circuit in
Janusaitis v. Middlebury Volunteer Fire Dept., 607 F.2d 17, 25 (2d
Cir. 1979). There, our sister circuit held, under similar circumstances,
that a Connecticut volunteer fire department was a state actor for pur-
poses of section 1983. In that case, the Second Circuit carefully
examined all of the circumstances present, including: (1) the "indicia
of state involvement"; (2) the functions carried out by the actor; (3)
the nature of the relationship between the state and the actor; and (4)
the powers and authorities that had been conferred upon the actor by
the state. Id. at 20-25. In all the circumstances, and under several
then-articulated "test[s]," the court held that the volunteer fire depart-
ment was a state actor. Id. at 25. In short, the totality-of-the-
circumstances approach applied in Janusaitis is correct, and under
that approach, Chestnut Ridge is functioning under color of law.
We note that the Fifth Circuit applied a different rationale in reach-
ing a contrary holding in Yeager v. City of McGregor, 980 F.2d 337,
343 (5th Cir. 1993). There, the court conducted a"fact-specific
review" of the "history, tradition and local law surrounding volunteer
fire departments" in Texas, and it applied the"`exclusive' public
function" test in isolation before concluding that the volunteer fire
department at issue there was not a state actor. Id. at 340-41. We find
the Yeager decision to be distinguishable-- on both its apprehension
of the law and in its application of the law to the facts. First, the
Yeager court applied the "`exclusive' public function" test without
consideration of other indicia of state action. In other words, while
each of the tests, applied in isolation, may have been insufficient in
Yeager to satisfy the state action test, had the indicia been properly
viewed in their totality, the conclusion of that court may have been
different. Moreover, Yeager is distinguishable on its facts, inasmuch
as: (1) there was no evidence that firefighting had been exclusively
the province of the government in Texas; and (2) the authority in
Texas did not support the conclusion that Texas regarded firefighting
as an exclusively governmental function. We therefore do not find
Yeager to be persuasive authority.
18
To the contrary, where, as here, an actor: (1) carries out a function
-- firefighting -- that has traditionally and exclusively been the prov-
ince of a State; (2) is endowed with powers and protection, including
police powers and sovereign immunity, traditionally exclusively
reserved to the State; (3) is substantially funded by the state; (4) is
extensively regulated by the state; and (5) is considered to be a state
actor by the state itself, we conclude that the actor is a state actor. A
necessary corollary of our first conclusion -- that Chestnut Ridge's
personnel decisions are "under color" of law for purposes of section
1983 -- is our holding that those decisions must comport with the
First Amendment of the Constitution. We thus turn to the next issue
to be considered in this appeal: whether Mr. Goldstein can carry his
burden to establish a violation thereof.
IV.
A.
Mr. Goldstein joined Chestnut Ridge as a volunteer firefighter in
1985, and for the next ten years, he sought and was elected to a num-
ber of company offices. His rise to power in Chestnut Ridge was cur-
tailed in December 1995, when he lost the election for company
Captain. Before Goldstein lost this election, he had been a consistent
"letter writer"; that is, he was constantly writing to the leadership of
Chestnut Ridge with his concerns, worries, and complaints. Nonethe-
less, it is Goldstein's post-election correspondence to Chestnut Ridge
between December 1995 and March 1996 that forms the factual
underpinning of his appeal. Thus, we review that correspondence in
some detail.
1.
In his first relevant post-election correspondence, dated December
17, 1995, to the Executive Committee,8 Mr. Goldstein alleged that the
Captain was responsible for three errors that occurred during a rescue.
Among other things, Goldstein asserted that: (1) the Captain had
_________________________________________________________________
8 The members of the Executive Committee were Richard Yaffee, Ross
McCausland, Harry Kakel, William Newberrey, III, Michael Fox,
Eugene Reynolds, and Nick Coroneos.
19
"screamed at people to `stay back [at the station] and clean' rather
than appointing crews," with the result that the crew responding to the
emergency was "very inexperienced" and lacking in proper technical
knowledge; (2) the Captain left several emergency technicians behind
at the station, which "compromised patient care and caused an unnec-
essary personnel shuffle to attend to the patients"; and (3) the Captain
showed "favoritism" by failing to suspend someone who, in violation
of company operating procedures, "showed to the scene [of the emer-
gency]" rather than "proceeding to the Station," inasmuch as the Cap-
tain had suspended Goldstein for the same conduct. J.A. 827-28. This
letter concluded with a request for a formal investigation and a
demand for a written response to the three complaints.
Three days later, on December 20, 1995, Goldstein sent a memo-
randum to the Executive Committee identifying the Chestnut Ridge
firefighters who had: (1) permitted their cardiopulmonary resuscita-
tion ("CPR") certifications to lapse, and (2) failed to take training
required for drivers. Goldstein also maintained that firefighters on the
list should not be permitted to "ride the apparatus." J.A. 829.
On the same day, Goldstein sent a second memorandum to the
Executive Committee asserting that the Captain had committed sev-
eral errors on another emergency call. Specifically, Goldstein claimed
that the Captain had violated a County operating procedure and a
company bylaw by responding to an emergency call with a crew of
three, instead of a crew of four, and by failing to notify dispatch "that
the engine was responding short crew." J.A. 830. This letter also
requested a "full investigation" into the incident. Id.
Mr. Goldstein's next letter came two weeks later, on January 4,
1996, when he wrote to defendant Yaffee, President of the Executive
Committee. This letter responded to the Executive Committee's
apparent rejection of the allegations made in Goldstein's letter of
December 17, 1995. In response to that rejection, Goldstein asserted
that: (1) the Executive Committee's investigation of his allegations
was inadequate and failed to follow the required procedure for inves-
tigations; (2) his allegations of safety violations and favoritism were
substantiated; and (3) a full investigation should be conducted. Gold-
stein concluded this letter by underscoring his concern that the Execu-
20
tive Committee had "swept [the issues] under the table" instead of
giving his complaints the attention they deserved. J.A. 835.
One week later, on January 11, 1996, Mr. Goldstein sent another
letter to Yaffee listing problems Goldstein asserted he had noticed
during a recent blizzard. Among other things, Goldstein observed
that: "line officers" had failed to adequately stock medical and other
supplies; the equipment had been improperly stored; and the Cap-
tain's "aloof" response to Goldstein's complaints, coupled with Gold-
stein's lack of full access to the Engineer's Room (in contrast to other
officers who had been permitted access), evidenced favoritism by the
Captain. Mr. Goldstein emphasized that these problems were "a detri-
ment to the good of the Company, the safety of our crews/equipment,
and the image of the Company in the community." J.A. 832.
During the next week, on January 18, 1996, Mr. Goldstein sent yet
another letter to Yaffee raising myriad issues. First, Goldstein
requested an investigation into "Jamie Lloyd and Matt Moritz
approaching my goddaughter, Dena Gede, at school regarding Com-
pany business." J.A. 836. Second, Goldstein informed Yaffee that he
had discussed the conduct of the Captain during"the rescue at Park
Heights & Walnut Avenues" with representatives of the "Fire Rescue
Academy" and the "Volunteer Fireman's Association," and that both
representatives had concurred in Goldstein's charge that errors had
occurred. Id. Third, Goldstein highlighted some potential conse-
quences to the company if the issues relating to"gear and safety"
were not addressed promptly. Fourth, Goldstein noted his belief that
the rules were not being enforced fairly, inasmuch as his brothers (and
one other firefighter) had received warnings for conduct that had been
ignored when committed by other firefighters. Fifth, he inquired
whether there was any truth to rumors that Yaffee was considering
kicking Goldstein (and others) out of the company. Finally, Goldstein
requested that Yaffee investigate whether training requirements were
being met by the company. Mr. Goldstein ended this letter by noting
that company camaraderie was being undermined by the actions of
the newly elected officers, and he made the following request: "I
would appreciate it if you would handle this professionally + not
allow other members to read this letter." J.A. 837 (emphasis in origi-
nal).
21
Following transmission of the January 18, 1996 letter, Mr. Gold-
stein apparently spoke with Yaffee by phone, and on January 19,
1996, sent another letter to Yaffee confirming agreements made dur-
ing their phone conversation. Among other things, the January 19 let-
ter confirmed that the following steps would be taken: (1) "The
Company [would] consistently enforce[] all members taking and
using their turnout gear on all fires, rescues and other appropriate situ-
ations"; (2) Yaffee would "issu[e] a letter for Mrrs. [sic] Mortiz and
Lloyd regarding discussing Company business with my goddaughter";
(3) Yaffee would discuss with the Captain "uniformly enforcing all
Company policies"; and (4) Yaffee would address supply issues with
the "Line Officers." J.A. 838. In exchange, Mr. Goldstein agreed that
he would "bring any problems to [Mr. Yaffee's] attention for resolu-
tion before I resort to any other actions in the future." Id. (emphasis
added).
2.
On March 10, 1996, Mr. Goldstein sent a memorandum to Mr.
Yaffee regarding "Members riding illegally." J.A. 840. He noted that
"the Line Officers of the Company are ignoring established Baltimore
County Fire Department and Baltimore County Volunteer Fireman's
Association rules regarding mandatory training for riding members."
Id. Goldstein also noted that riding members were required to have
"a current CPR card; Hazardous Materials Operations; Bloodborne
Pathogens; and PAT Tags issued," and he asserted that several riding
members were not in compliance. Id. Goldstein requested that the
Captain be charged with violating the bylaws and that a written report
on compliance with the regulations be produced.
The next day, March 11, 1996, Mr. Goldstein sent a copy of this
same letter to the Executive Committee. Mr. Yaffee responded on
March 15, 1996, by suspending Mr. Goldstein for failing to abide by
his agreement, confirmed in Goldstein's January 19 letter (see supra
at 22) to bring further complaints to Yaffee's attention before resort-
ing to other actions, including further referrals to the Executive Com-
mittee. The Executive Committee affirmed the ninety-day suspension,
and, on Goldstein's motion, the entire company was presented an
opportunity to review and approve the suspension. On a vote of the
company, Mr. Goldstein's suspension was upheld.
22
3.
While on suspension, Mr. Goldstein was terminated in response to
certain actions relating to his instruction of CPR classes. Mr. Gold-
stein allegedly falsified a number of CPR records that he submitted
to Chestnut Ridge. Mr. Yaffee was the first to detect the records dis-
crepancy. After hearing the evidence, the Executive Committee voted,
on August 29, 1996, to terminate Goldstein.
B.
Based on the uncontested facts set forth above, Goldstein claims
that his suspension and subsequent termination abridged his First
Amendment rights. The basic First Amendment principles controlling
the issue here have long been established. "[A] state cannot condition
public employment on a basis that infringes the employee's constitu-
tionally protected interest in freedom of expression." Connick v. Mey-
ers, 461 U.S. 138, 142 (1983). "Our task . . . is to seek `a balance
between the interest of the employee, as a citizen, in commenting
upon matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services it per-
forms through its employees.'" Id. (quoting Pickering v. Board of
Education, 391 U.S. 563, 568 (1968)). Just as an employee has a right
to speak -- even at work -- public employers have the right to run
efficient, functional operations, and we must ensure the proper bal-
ance between these competing interests.
In that vein, a public employee must establish several elements to
state a claim for deprivation of First Amendment rights flowing from
an adverse employment action. "First, to trigger First Amendment
protection, the speech at issue must relate to matters of public inter-
est." Hanton v. Gilbert, 36 F.3d 4, 6 (4th Cir. 1994) (citing Connick,
461 U.S. at 146). Second, the "employee's interest in First Amend-
ment expression must outweigh the employer's interest in efficient
operation of the workplace." Hanton, 36 F.3d at 6-7 (citing Pickering,
391 U.S. at 568). Third, the employee must establish retaliation of
some kind -- that he was deprived of a valuable government benefit
or adversely affected in a manner that, at the very least, would tend
to chill his exercise of First Amendment rights. See Edwards v. City
of Goldsboro, 178 F.3d 231, 246 (4th Cir. 1999) ("[A] public
23
employer is prohibited from threatening to discharge a public
employee in an effort to chill that employee's rights under the First
Amendment."); Huang v. Board of Governors, 902 F.2d 1134, 1140
(4th Cir. 1990) ("[C]laimant must show that the alleged retaliatory
action deprived him of some valuable benefit."); DiMeglio v. Haines,
45 F.3d 790, 806-07 (4th Cir. 1995). Finally, the employee must
establish a causal relationship between the protected expression and
the retaliation: that the protected speech was a"substantial factor" in
the decision to take the allegedly retaliatory action." Edwards, 178
F.3d at 248; McVey v. Stacy, 157 F.3d 271, 277-78 (4th Cir. 1998).
"[T]he order of inquiry may vary with the circumstances of the
case." Daniels v. Quinn, 801 F.2d 687, 689 (4th Cir. 1986). Insofar
as the first three elements are ultimately questions of law that were
resolved by the district court in this case, we examine those questions
of law first. The fourth factor -- one of causation -- is one of fact,
and as such, it will serve as a basis for summary judgment only in
those instances when there are no causal facts in dispute. Therefore,
we review the issue of fact last.
1.
The first question of law before us is "whether the speech
[involved] a matter of legitimate public concern." Chestnut Ridge has
never contested that Mr. Goldstein has fulfilled this element. And, in
considering this issue, the district court held:"Because Goldstein crit-
icized the actions of public officials and questioned the propriety of
actions taken by a governmental entity, his letters involved a matter
of public concern. Indeed, his letters addressed a matter of public
safety, which is one of the foremost public concerns imaginable." J.A.
1344-45 (citation omitted). Although we agree with the district court
that Goldstein's speech involved matters of public concern, applica-
tion of the remaining elements mandates a closer examination of the
speech at issue.
"Whether an employee's speech addresses a matter of public con-
cern must be determined by the content, form, and context of a given
statement, as revealed by the whole record." Connick, 461 U.S. at
147-48. We must carefully review the entire record to ensure that
matters of internal policy, including mere allegations of favoritism,
24
employment rumors, and other complaints of interpersonal discord,
are not treated as matters of public policy:
To presume that all matters which transpire within a govern-
ment office are of public concern would mean that virtually
every remark -- and certainly every criticism directed at a
public official -- would plant the seed of a constitutional
case. While as a matter of good judgment, public officials
should be receptive to constructive criticism offered by their
employees, the First Amendment does not require a public
office to be run as a roundtable for employee complaints
over internal office affairs.
Id. at 149. In our inquiry, we seek to determine "whether the `public'
or the `community' is likely to be truly concerned with or interested
in the particular expression, or whether it is more properly viewed as
essentially a `private' matter between employer and employee." Ber-
ger v. Battaglia, 779 F.2d 992, 999 (4th Cir. 1985). This is a subtle,
qualitative inquiry; we use the content, form, and context as guide-
posts in the exercise of common sense, asking throughout: would a
member of the community be truly concerned with the employee's
speech?
We begin with the content of Goldstein's speech. Our de novo
review of the relevant communications evidences that during the rele-
vant period, the correspondence covered the following subjects:
- Twelve allegations of safety violations: J.A. 827-28 ((1) inexpe-
rienced crew and (2) insufficient technical training); J.A. 829
((3) lapsed CPR certificates and (4) inadequate training); J.A.
830 ((5) short crew); J.A. 833-35 ((6) insufficient investigation
of safety violations); J.A. 831-32 ((7) insufficient supplies and
(8) improperly stored equipment); J.A. 836-37 ((9) inadequate
gear on emergency call; (10) failure to stabilize vehicle during
emergency call; and (11) failure to enforce training require-
ments); J.A. 840-41 ((12) crewmembers riding to emergencies
without proper training).
- Three allegations related to favoritism by the Captain: J.A. 827
((1) Captain suspends Goldstein for conduct then later fails to
25
suspend another crewmember for same conduct); J.A. 831-32
((2) Goldstein denied access to "Engineers room"); J.A. 836-37
((3) gear policy enforced against some but not others).
- Other complaints: J.A. 836-37 ((1) Goldstein's goddaughter
contacted about company business and (2) rumors that Gold-
stein (and others) were to be terminated from the company).
Thus, Goldstein's "speech" between December 1995 and March 1996
contained three general substantive categories of communication: (1)
safety; (2) favoritism; and (3) miscellaneous expressions of other con-
cerns.
Matters relating to public safety are quintessential matters of "pub-
lic concern." See Edwards, 178 F.3d at 247 (noting that police offi-
cer's speech, relating to proper use and manner of handling concealed
weapons, affected public safety and involved matters of public con-
cern); Lee v. Nicholl, 197 F.3d 1291, 1295 (10th Cir. 1999) (holding
that employee's memoranda concerning traffic safety at particular
intersection was on matter of public concern); Kincade v. City of Blue
Springs, 64 F.3d 389, 396 (8th Cir. 1995) ("These statements con-
cerned potential danger to the community's citizens, which surely is
a matter of concern to the public and not of some personal interest
solely to the speaker."). While the content of Goldstein's speech
incorporated matters that were clearly of public concern -- including
allegations that safety regulations were being violated, the relevant
communications also incorporated matters that are not of public con-
cern, including matters of internal policy, favoritism, and other
employment-related matters.
In assessing whether the speech included matters of public concern,
we consider next the form of the speech. The speech with safety-related9
content was encompassed in letters Goldstein sent to the President
and Executive Committee of the company. Notably, Goldstein
included requests that his allegations of safety violations not be made
known throughout the company. See supra at 21. Perhaps more sig-
_________________________________________________________________
9 We have analyzed the "form" and "context" of the speech whose
"content" did not involve matters of public concern, and neither the form
nor the context converted those matters into public concerns.
26
nificantly, however, some of the complaints of safety violations were
delivered by Goldstein to the Executive Committee in violation of his
agreement not to complain directly to the Executive Committee with-
out permitting the company President to first address the concerns.
These circumstances notwithstanding, we find that the form of the
speech does not diminish the public concern encompassed in Gold-
stein's speech. We underscore that at the summary judgment stage,
we are compelled to view these facts in the light most favorable to
Goldstein, and in that light, Goldstein's letters might be seen as a vig-
orous attempt to press company leadership to address matters deeply
affecting public safety. Similarly, the fact that Goldstein did not make
his views publicly known does not, in any way, undermine the public
concern encompassed in his speech. Indeed, as we recently noted,
"[p]ublic employees do not forfeit the protection of the Constitution's
Free Speech Clause merely because they decide to express their views
privately rather than publicly." Cromer v. Brown, 88 F.3d 1315, 1326
(4th Cir. 1996). In short, the form of the speech does not detract from
the public concerns encompassed in Goldstein's public-safety related
speech.
Finally, we review this speech in the context in which it took place.
This correspondence was submitted in the wake of Goldstein's elec-
tion loss for the position of company Captain; indeed, the volume of
Goldstein's correspondence attacking the Captain's leadership
increased significantly following Goldstein's loss in the election for
that very position. One reaction to an election defeat of this kind
would be to recommit oneself to the company, seeking to establish a
record upon which a future election victory might be found. Another
possible reaction to a defeat of this kind is to undermine the victor,
thereby attempting to demonstrate for the electorate that an error was
made in selecting a less-than-worthy leader. The former reaction
seeks to better the company (and may involve matters of public con-
cern), while the latter reaction seeks to second-guess the leadership
(which is more likely to involve purely internal matters). Again, how-
ever, we are compelled to view this evidence in the light most favor-
able to Mr. Goldstein. In that light, we simply cannot conclude that
he had anything but a good-faith intent to identify safety violations.
In short, Mr. Goldstein's allegations relating to public safety, in the
form and context in which they were submitted, involved matters of
public concern.
27
2.
Having found that matters of public concern were involved in the
speech at issue here, we turn to the second question of law:
"[W]hether the degree of public interest in the employee's statement
was . . . outweighed by the employer's responsibility to manage its
internal affairs and provide `effective and efficient' service to the
public." Daniels, 801 F.2d at 690.
Here, we begin with Chestnut Ridge's claimed interest. Chestnut
Ridge argues that, as a general matter, its interests in managing its
internal affairs -- including promoting efficiency and camaraderie --
outweighs the public interest in this speech. The district court agreed:
Chestnut Ridge has a legitimate interest in maintaining an
orderly and safe work environment. The maintenance of
such an environment is itself essential to the public safety.
Although Goldstein's safety concerns may have been legiti-
mate -- and Yaffee indicated that some of them were -- the
manner in which he raised them was so disruptive to Chest-
nut Ridge's operation that the Executive Committee felt it
was necessary to suspend him for 90 days. "When close
working relationships are essential to fulfilling public
responsibilities, a wide degree of deference to the employ-
er's judgment is appropriate." Perhaps more than other pub-
lic entities, a fire company must have a cohesive work
environment. The Executive Committee's response was pro-
portionate to the harm that it reasonably perceived and
therefore, in my judgment, was constitutionally justified
under the circumstances.
J.A. 1346 (citations omitted). In this vein, Chestnut Ridge generally
asserts that it had "an over-riding interest in protecting the safety and
security of its members" and that Goldstein's complaints disrupted the
company and "put the company in turmoil." Br. for Appellee at 24,
26. Further, even if the actual disruptions, which are without specific
evidentiary support here, were not sufficient to justify suspension,
Chestnut Ridge claims that significant disruption would have resulted
from Mr. Goldstein's conduct. Because, Chestnut Ridge contends,
courts give "substantial deference" to a government employer's pre-
28
dictions of disruption, and state entities should not be sidetracked
with "less important concerns," we should resolve this balancing test
in Chestnut Ridge's favor. Br. for Appellee at 24-25. We agree that
volunteer fire companies have a strong interest in the promotion of
camaraderie and efficiency, and we thus accord Chestnut Ridge sub-
stantial weight for these articulated interests.
We next evaluate the weight to be given the public concern for
public safety expressed in Goldstein's speech. Among other things,
the substance of the public concern included allegations that some
emergency personnel lacked required training and certifications; that
the leadership of the company was overlooking violations of safety
regulations; and that the conduct of crewmembers was jeopardizing
the safety of the crew and of the public.10 These allegations were a
matter of the highest public concern, and as such, they were entitled
to the highest level of First Amendment protection. See Connick, 461
U.S. at 152 ("We caution that a stronger showing may be necessary
if the employee's speech more substantially involved matters of pub-
lic concern.").
In weighing these two concerns -- that of Chestnut Ridge and that
of the public -- however, we must reject the district court's analysis.
If a member of the public has knowledge that safety is being compro-
mised by emergency personnel, that person should not be discouraged
from so reporting. Therefore, to justify sanctions, including suspen-
sion from the company, based on the substance of these concerns,
Chestnut Ridge was required to make an extremely strong showing.
We agree that state actors -- like the firefighting company here --
have a strong interest in promoting internal harmony, trust, and cama-
raderie amongst its members. However, generalized and unsubstan-
tiated allegations of "disruptions," and predictions thereof, must yield
to the specific allegations made by Goldstein here, which related spe-
cifically to the safety of the public. Indeed, any complaint by one fire-
fighter that another firefighter is violating safety regulations is sure to
affect "camaraderie" in the general sense. However, to adopt the dis-
trict court's approach would permit fire companies-- and similarly
situated state actors -- to sanction the complaining firefighter based
_________________________________________________________________
10 The district court found that Chestnut Ridge's own representatives
had conceded that some of Goldstein's concerns were legitimate.
29
upon unsupported and generalized predictions of"disruptions" caused
by the complaints. In the context of a fire company, such a result
would effectively endorse a "red line of silence," whereby fire compa-
nies, police officers and other entities carrying out crucial public
functions are permitted to quash complaints affecting public safety
under the general aegis of "camaraderie" and the avoidance of disrup-
tions. We are unwilling to countenance such a blanket immunity;
indeed, as one commentator aptly observed:
[A] firefighter's ability to exercise her First Amendment
rights could prove crucial to the safety and welfare of a
community. If a company is not properly trained, is using
outdated equipment, or lacks adequate staffing, the commu-
nity needs to know about it. In the context of public employ-
ment, the Supreme Court has recognized a free-speech
easement in government workplaces to facilitate speech
concerning matters of public concern. Volunteer firefighters
subject to summary discharge or other forms of punishment
will think twice before speaking out about problems with
the local fire company.
Ronald J. Krotoszynski, Jr., Back to the Briarpatch: An Argument in
Favor of Constitutional Meta-Analysis in State Action Determina-
tions, 94 Mich. L. Rev. 302, 331-32 (1995). Although today we
resolve the balancing test in favor of Goldstein, we emphasize that the
inquiry is a particularized one. In other words, we do not hold that a
complainant's interest in voicing safety complaints will always out-
weigh a police or fire department's interest in maintaining morale and
efficiency within its ranks. We merely conclude that when the evi-
dence in this case is viewed in the light most favorable to Goldstein,
Chestnut Ridge's generalized and unsubstantiated interests, although
substantial, fail to outweigh the public's interest in being aware of
these safety violations. See Pickering, 391 U.S. at 570 ("[T]o the
extent that the Board's position here can be taken to suggest that even
comments on matters of public concern that are substantially correct
. . . may furnish grounds for dismissal if they are sufficiently critical
in tone, we unequivocally reject it.").
3.
We next consider whether Goldstein was deprived of a valuable
government benefit or adversely affected in a manner that, at the very
30
least, would tend to chill his exercise of First Amendment rights. We
need not dwell on this element because it is clearly satisfied here. The
Supreme Court has recognized that a failure to hire, a denial of pro-
motion, or denial of transfer may constitute the deprivation of a valu-
able governmental benefit. Rutan v. Republican Party of Illinois, 497
U.S. 62, 73-76 (1990). The clear import of this holding was that "an
adverse employment action did not have to be the substantial equiva-
lent of a dismissal to violate a public employee's rights under the First
Amendment." DiMeglio, 45 F.3d at 806. It also makes no difference
that Goldstein was a volunteer fireman; he has been stripped of the
powers, rights, and obligations heaped upon members of Chestnut
Ridge. See supra at 10-11. Thus, inasmuch as Goldstein was first sus-
pended and later terminated from Chestnut Ridge, we conclude that
this element has been satisfied.
4.
Finally, Goldstein bears the burden of demonstrating that his pro-
tected speech was a "substantial factor" in Chestnut Ridge's decision
to suspend him. Edwards, 178 F.3d at 248. The entry of summary
judgment necessitates that we review this factor de novo. Mr. Gold-
stein's burden is thus considerably lighter at this stage of the proceed-
ings, inasmuch as we resolve all factual disputes in his favor. See
Jones v. Dodson, 727 F.2d 1329, 1337 (4th Cir. 1984) (If the "`evi-
dence raises genuine issues as to the actual reason for an employee's
discharge,' the motivational issue must . . . be resolved by the trier
of fact.").
Notwithstanding this standard of review, we must affirm the dis-
trict court's ruling against Mr. Goldstein because he cannot satisfy his
burden of demonstrating that protected speech was a substantial factor
in his suspension. In this case, Mr. Goldstein has submitted no evi-
dence, even following the completion of extensive discovery, that the
substance of his protected speech was a substantial factor behind his
suspension. Left with mere conjecture to this effect, the district court
properly awarded summary judgment to the defendants.
At the outset, the record submitted in support of the summary judg-
ment motions clearly evidences that Goldstein was suspended, and
later terminated, for reasons unrelated to his allegations relating to
31
public safety. The Executive Committee members, each of whom
voted in favor of Goldstein's suspension, articulated a basis for the
suspension separate and independent from protected speech. For
example, Yaffee testified that he suspended Mr. Goldstein solely
because Goldstein sent the letter directly to the Executive Committee
on March 11, 1996, in violation of the agreement that Goldstein made
on January 19, 1996, under which Goldstein agreed to give Yaffee a
chance to remedy any problems before Goldstein would report them
to the Executive Committee. Similarly, the other members of the
Executive Committee -- Ross McAusland,11 Henry Kakel,12 William
Newberrey,13 Michael Fox,14 Eugene Reynolds,15 and Nick Coroneos16
-- each articulated reasons separate and distinct from Goldstein's
_________________________________________________________________
11 McAusland claimed that he voted to suspend Goldstein based on a
number of concerns, for which no formal charges were ever filed: (1)
sexual harassment liability; (2) expressions of company members who
felt unsafe working with Goldstein; (3) Goldstein's insubordination in
1994; (4) Goldstein's turning a mistake by the Captain into "a critique
and attack on the [C]aptain" (J.A. 888); (5) Goldstein driving another
President out of the company; (6) allegations of Goldstein's use of illegal
drugs; and (7) allegations that Goldstein had intimidated other members
of Chestnut Ridge.
12 Henry Kakel testified that his perception was that the company was
in a state of "turmoil," and he believed that some of the allegations were
"nitpick[y]" and untrue. J.A. 932.
13 In voting in favor of suspension as a member of the investigating
committee that recommended Goldstein's suspension, Newberrey had
"hop[ed] that in the 90-day period, that[Goldstein] would cool down a
little bit and get over the fact that he didn't make[C]aptain." J.A. 1205.
Newberrey also believed that Goldstein had "disrespect[ed] subordi-
nates," J.A. 1214, and "was disrespectful to the senior officers." J.A.
1217.
14 Fox could only remember that he voted to suspend in reliance on the
recommendations of the investigating committee. J.A. 958.
15 Reynolds stated that he had voted to suspend based on (1) "a pattern
of behavior that was disruptive to the company" (J.A. 963); and (2) on
the fact that "[t]he great bulk of the accusations were directed to the then
captain." J.A. 966.
16 Coroneos voted to suspend based, inter alia, on the "way [Mr. Gold-
stein] presented detrimental subjects to the good order of the company,"
and "his pattern of behavior." J.A. 954.
32
protected speech. The theme suggested by each of the voting Execu-
tive Committee members was that the substance of Goldstein's pro-
tected speech had nothing to do with his suspension.
Inasmuch as explanations legitimizing otherwise prohibited con-
duct can easily be conjured post hoc, we have reviewed these expla-
nations with a jaundiced eye. Thus, we have reviewed the record to
determine whether any reasonable jury could conclude that the articu-
lated reasons for Goldstein's suspension were a pretext for suspension
substantially motivated by Goldstein's protected speech; if a reason-
able jury could reach this conclusion, then we must remand the case
for trial. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248
(1986) (holding that summary judgment is not appropriate "if the evi-
dence is such that a reasonable jury could return a verdict for the non-
moving party"). We emphasize, however, that the Executive
Committee members need not have been correct in their apprehension
of the facts underlying the articulated justifications. On the other
hand, those beliefs must have been held honestly and in good faith,
and, at this stage of the proceedings, we must be able to discern that
the articulated, non-protected-speech-related justifications for the
adverse employment actions are not a pretext for retaliation substan-
tially caused by protected speech.
In this case, however, the articulated -- and constitutionally justi-
fied -- reasons for the Executive Committee members' individual
decisions to suspend Goldstein are substantiated by the balance of the
record on appeal. For example, it is uncontested that Goldstein's letter
of March 11, 1996, violated his agreement with Yaffee to bring all
further complaints to Yaffee before presenting them to the Executive
Committee. The violation of a prior employment agreement in this
manner furnished a clear justification for sanctions, and any such
sanction would have been unrelated to Goldstein's public safety
related complaints. Further, Goldstein's violation of his agreement
with Yaffee was the articulated reason behind the decision of several
Executive Committee members to vote in favor of Goldstein's sus-
pension. Thus, to the extent that the violation of his agreement with
Yaffee served as the basis of Goldstein's suspension, his suspension
would not have been substantially caused by his protected speech.
Similarly, the members of the Executive Committee plainly per-
ceived that Goldstein's complaints sought to undermine the newly
33
elected Captain's leadership instead of raising safety concerns in good
faith. On the record before us, this articulated justification is substan-
tiated. As noted above, Goldstein submitted a high volume of com-
plaints against the newly elected Captain immediately following the
election. See supra at 26-27. While this context does not vitiate the
public concern encompassed in Goldstein's speech, it does substanti-
ate the claim that "[t]he great bulk of he accusations were directed to
the captain," J.A. 966, and that Goldstein's complaints were "nitp-
ick[y]." J.A. 932.
The other facts surrounding Goldstein's suspension also support
Chestnut Ridge. Significantly, Goldstein was not sanctioned until he
violated his agreement with Yaffee. Further, Goldstein has never
alleged that Chestnut Ridge took any action with the intent of quash-
ing the substance of his complaints. To the contrary, Mr. Goldstein
concedes that Yaffee reacted to his numerous complaints by requiring
only that he (Yaffee) be given the first opportunity to respond to
future complaints. Had Goldstein's outlet for complaints been shut
off, or had there been no clear procedure for lodging such complaints,
then the manner in which Goldstein had submitted his public safety
related concerns could not have served as a basis for employment
sanctions. However, the facts present here -- including the notice of
a clear procedure for the lodging of future complaints -- only serve
to reinforce the conclusion that the substance of his complaints was
not the cause of the employment sanctions.
That the company actually took steps to remedy the problems
Goldstein had identified is another fact that supports Chestnut Ridge.
That is, as Goldstein concedes, "[a]fter Goldstein made his allega-
tions, Yaffee and Coroneos issued a memorandum to the Executive
Committee setting forth the training and/or certification needed by
certain members of Chestnut [Ridge]." Br. for Appellant at 21. Acting
to remedy the safety problems identified by Goldstein certainly rein-
forces the testimony of the Executive Committee members that the
substance of the Goldstein's allegations was unrelated to the sanctions
later imposed.
In response, Mr. Goldstein argues that two facts require reversal:
(1) that the letters sent to Chestnut Ridge between December 1995
and March 1996 were the cause of his suspension in March 1996 and
34
(2) that some of the allegations of safety violations contained in those
letters were accurate.17 Even if true, these allegations do not carry the
required burden. What Mr. Goldstein needed to produce was evidence
that the protected speech -- the allegations of safety violations --
was a "substantial factor" in his suspension or that the articulated jus-
tifications for his suspension were a pretext. He has submitted no evi-
dence to either effect. Instead, his argument is, at base, that because
some of his allegations were true, his suspension must have been sub-
stantially caused by the allegations. We reject this argument.
In this light, we conclude that no reasonable jury could find that
Goldstein's protected speech was a substantial factor in Chestnut
Ridge's decision to suspend him. The uncontroverted evidence estab-
lishes that Chestnut Ridge suspended Goldstein for other conduct.
5.
In short, having analyzed the "substance, form, and context" of the
speech at issue here, we conclude that the communications incorpo-
rated both matters of public concern and matters of purely internal
concern; that Chestnut Ridge could not have sanctioned Mr. Goldstein
for the substance of his protected speech; that he was, in fact,
deprived of a benefit; but that as a matter of law, no reasonable jury
could conclude that the substance of Mr. Goldstein's protected speech
was a substantial factor in the decision to suspend him.18
_________________________________________________________________
17 See, e.g., J.A. 1015-20, 1040-41 (Yaffee admitting some allegations
were true); J.A. 1104-09 (Coroneos admitting that members lacked
required training).
18 As for his dismissal, Mr. Goldstein argues that the allegations of fal-
sified records were a pretext, and that Chestnut Ridge actually dismissed
him based on his speech. The district court disagreed: "Of course if the
evidence upon which an employer discharged an employee was so weak
as to give rise to the inference that it was pretextual, there would exist
an issue of fact to be decided by the jury. That, however, is not the case
here where there is sufficient evidence from which the members of the
Executive Committee could properly find that Goldstein had falsified
records." J.A. 1347. Having concluded that Goldstein's suspension did
not violate the First Amendment, we also affirm the district court's find-
ing that there was substantial evidence upon which Goldstein could have
been terminated. We therefore affirm the entry of summary judgment on
this count.
35
V.
Having examined the incidents of sovereignty borne by Chestnut
Ridge, we conclude that this Maryland volunteer fire department is,
as a matter of law, a state actor. For that reason, Chestnut Ridge is
bound by the First Amendment. However, because Goldstein cannot
establish that protected speech was a substantial factor in his suspen-
sion or dismissal, we affirm the district court's entry of summary
judgment in favor of the defendants.
AFFIRMED
WILKINSON, Chief Judge, concurring in part and concurring in the
judgment:
I am pleased to concur in the majority's opinion except as to Part
IV.B.2. The district court correctly found that the fire department's
interests in maintaining order and discipline outweighed Goldstein's
speech interests under the second step of the Pickering balance. Gold-
stein went to great lengths to disrupt the department by launching a
blizzard of complaints immediately upon losing an election for the
department's captaincy. The district court properly recognized that
Goldstein's behavior was highly detrimental to Chestnut Ridge's abil-
ity to perform its essential function of ensuring public safety. I would
therefore not reject the district court's analysis on this point. Rather,
I would affirm the judgment without reservation.
Police and fire departments cannot effectively protect public safety
without some measure of order and discipline in their ranks. "When
close working relationships are essential to fulfilling public responsi-
bilities, a wide degree of deference to the employer's judgment is
appropriate." Connick v. Myers, 461 U.S. 138, 151-52 (1983). The
district court found that Chestnut Ridge's interests in maintaining an
orderly and safe working environment outweighed Goldstein's speech
interests.
A number of facts support the district court's conclusion on this
point. To begin with, the sheer volume and frequency of Goldstein's
complaints give them a scattershot quality. Goldstein submitted letters
36
detailing numerous grievances to President Yaffee or the Executive
Committee on at least nine occasions over a period of less than three
months. Moreover, this barrage of complaints came fast on the heels
of Goldstein's loss of the election for the department's captaincy in
December 1995. Further, as the majority recognizes, a number of
Goldstein's concerns related only marginally or not at all to safety.
For example, in his January 4, 1996, letter to Yaffee, Goldstein com-
plained about last-minute changes to meeting times and the potential
formation of "cliques" at the station, in addition to raising safety
issues. In his January 11, 1996, letter to Yaffee, Goldstein complained
about having been denied access to the "Engineers room" during his
prior tenure as first lieutenant. Indeed, Goldstein's letters were rife
with accusations of favoritism on the part of the newly elected cap-
tain. This sort of sniping reinforces the conclusion that Goldstein's
speech was directed toward disrupting the company and was moti-
vated in part by personal vendetta.
Contrary to the concerns expressed by the majority, the district
court's approach does not permit state actors to immunize themselves
from the First Amendment with reflexive appeals to"camaraderie."
Rather, the district court undertook a particularized examination of
the facts of this case, as Connick/Pickering requires. See, e.g.,
Connick, 461 U.S. at 142, 150, 154; Pickering v. Board of Educ., 391
U.S. 563, 568, 569 (1968). The district court considered the manner
in which Goldstein raised his complaints, as well as testimony con-
cerning the disruptive effect of Goldstein's behavior on the fire
department. While acknowledging the great importance of Gold-
stein's interest in speaking on matters of safety, the district court con-
cluded that, under these particular circumstances, the employer's
interests were paramount. Unlike the majority, I would endorse the
district court's conclusion on this point.
37