Buker v. Howard Cnty.

KEVIN PATRICK BUKER, et al., Plaintiffs v. HOWARD COUNTY, et al., Defendants

CIVIL ACTION NO. MJG-13-3046

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

May 27, 2015

(Consolidated with MJG-13-3747)

MEMORANDUM DECISION RE: SUMMARY JUDGMENT AS TO PLAINTIFF GRUTZMACHER

In the Order Re: Summary Judgment Motions, [Document 45], pertaining to Plaintiffs' § 1983 claims,¹ the Court granted the Defendants summary judgment as to Plaintiff Kevin Patrick Buker ("Buker") and denied the Defendants summary judgment as to Plaintiff Mark Grutzmacher ("Grutzmacher").

The instant Memorandum Decision states the grounds for denying summary judgment with regard to Grutzmacher. By separate Memorandum Decision Re: Summary Judgment as to Plaintiff Buker issued herewith, the Court states the grounds for granting Defendants summary judgment with regard to Buker.

I. BACKGROUND

In January 2013, Grutzmacher was an unpaid volunteer with the Howard County, Maryland Department of Fire and Rescue Services (the "Fire Department") who responded to ambulance calls as an emergency medical technician ("EMT"). On January 20, 2013, Buker, a Battalion Chief in the Emergency Services Bureau, posted a statement on his Facebook wall to which Grutzmacher responded.² Grutzmacher, by his Complaint,³ contends that his volunteer service was terminated in retaliation for his January 20, 2013 postings in violation of his First Amendment free speech rights.

By their [First] Motion for Summary Judgment [Document 28],⁴ Defendants sought summary judgment on Plaintiffs' First Amendment retaliation claims pursuant to Federal Rule of Civil Procedure 56.

II. SUMMARY JUDGMENT STANDARD

A motion for summary judgment shall be granted if the pleadings and supporting documents "show[] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).

The well-established principles pertinent to summary judgment motions can be distilled to a simple statement: The Court may look at the evidence presented in regard to a motion for summary judgment through the non-movant's rose-colored glasses, but must view it realistically. After so doing, the essential question is whether a reasonable fact finder could return a verdict for the non-movant or whether the movant would, at trial, be entitled to judgment as a matter of law. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Shealy v. Winston, 929 F.2d 1009, 1012 (4th Cir. 1991).

Thus, in order "[t]o defeat a motion for summary judgment, the party opposing the motion must present evidence of specific facts from which the finder of fact could reasonably find for him or her." Mackey v. Shalala, 43 F. Supp. 2d 559, 564 (D. Md. 1999) (emphasis added). However, "self-serving, conclusory, and uncorroborated statements are insufficient to create a genuine issue of material fact." Int'l Waste Indus. Corp. v. CapeEnvtl. Mgmt., Inc., 988 F. Supp. 2d 542, 558 n.11 (D. Md. 2013); see also Wadley v. Park at Landmark, LP, 264 F. App'x 279, 281 (4th Cir. 2008).

When evaluating a motion for summary judgment, the Court must bear in mind that the "[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed 'to secure the just, speedy and inexpensive determination of every action.'" Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1).

III. DISCUSSION

A. "Facts"⁵

1. Fire Department's Social Media Guidelines

On November 5, 2012, the Fire Department issued its Social Media Guidelines (the "Policy"). [Document 28-4]. The Policy states, in pertinent part:

3.4 Personnel are prohibited from posting or publishing any statements, endorsements, or other speech, information, images or personnel matters that could reasonably be interpreted to represent or undermine the view or positions of the Department, Howard County, or officials acting on behalf of the Department or the County . . . .

. . . . 3.6 Personnel shall refrain from posting or publishing statements, opinions or information that might reasonably be interpreted as discriminatory, harassing, defamatory, racially or ethnically derogatory, or sexually violent when such statements, opinions or information, may place the Department in disrepute or negatively impact the ability of the Department in carrying out its mission.

. . . .

3.8 Personnel are prohibited from posting on any social media site or electronically transmitting messages, images, comments or cartoons displaying threatening or sexually-explicit material, epithets or slurs based on race, ethnic or national origins, gender, religious affiliation, disability, sexual orientation, or harassing, offensive, discriminatory, or defamatory conduct.

[Document 28-4] at 4.

The Policy applies to Fire Department personnel "whether on or off duty." Id. at 1. As a Fire Department volunteer, Grutzmacher was subject to the Policy. Anuszewski Dep. 13:4-13. Defendant Assistant Chief William Anuszewski ("Anuszewski") testified at his deposition that "[t]here's no rank associated with county volunteers who are at the firefighter level." Anuszewski Dep. 12:19-24. Anuszewski also testified that volunteers cannot rise above the firefighter level. Id. 12:25-13:3.

2. January 20, 2013⁶ Facebook Posts

The Policy covers Fire Department personnel activity on social networking sites, including Facebook. [Document 28-4] at 1. At all times relevant hereto, Grutzmacher maintained an account with Facebook. He was Facebook "friends" with employees of the Fire Department and other public safety agencies.

On the afternoon of Sunday, January 20, Buker was in his office at the Second Battalion at the Fire Department working and watching news coverage of the gun control debate. [Document 28-16] at 1. At 2:33 PM, Buker posted the following statement on his Facebook page:

My aide had an outstanding idea . . lets (sic) all kill someone with a liberal . . . then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal to death with another liberal . . . its (sic) almost poetic . . .

[Document 28-11] at 2; [Document 28-16] at 1.

Twenty minutes later, at 2:53 PM, Grutzmacher wrote the following comment on Buker's Facebook wall:

But . . . was it an "assault liberal"? Gotta pick a fat one, those are the "high capacity" ones. Oh . . . pick a black one, those are more "scary". Sorry had to perfect on a cool Idea!

[Document 28-11] at 3-4.

At 2:59 PM, Buker "liked" Grutzmacher's comment and posted the following statement: "Lmfao![⁷] Too cool Mark Grutzmacher!" [Document 28-11] at 4.

3. Reactions to the January 20 Facebook Posts

On January 22, First Battalion Chief Robert Utz sent a screenshot of Buker's initial Facebook post to Defendant Assistant Chief John Jerome ("Jerome") with a message stating: "Chief, not sure this is something that should be displayed from one of our battalion chiefs." [Document 28-11] at 1.

Jerome forwarded the message to Anuszewski and Defendant Deputy Chief John S. Butler ("Butler"). [Document 28-12] at 1. Butler emailed the screenshot to Defendant Fire Chief William F. Goddard, III ("Goddard"), who responded "Let's make sure we snapshot their posts." [Document 28-12] at 4. Butler informed Goddard via email that "Many other inappropriate comments were made re Buker's posting, by others from within the [fire] dept. No one above the FF [firefighter] rank though." [Document 28-12] at 4.

Members of the Phoenix Sentinels, the Howard County affiliate of the International Association of Black Professional Firefighters, contacted Battalion Chief Louis Winston ("Winston") after seeing the January 20 Facebook posts. WinstonDep. 30:13-31:12. Winston called Butler because a senior member of the Phoenix Sentinels had expressed concern that Grutzmacher's "comment of picking a black one referred to a black person." Winston Dep. 30:15, 34:10-21.

On January 23, Buker removed the initial January 20 Facebook post from his Facebook page, which automatically removed all of the comments to that post, including Grutzmacher's comment. See [Documents 28-13, 28-14]; Grutzmacher Aff. ¶ 4.

4. Termination of Grutzmacher's Volunteer Service

In a letter dated February 12, Anuszewski informed Grutzmacher that "you are hereby immediately dismissed from the County Volunteer program." [Document 28-22]. The letter did not give any further explanation for the dismissal.

Anuszewski testified at his deposition that Grutzmacher was dismissed "[f]or his postings on Facebook with racial overtones," which violated the Fire Department's "code of conduct, [and] social media policy." Anuszewski Dep. 14:11-22. Goddard testified at his deposition that "Mr. Grutzmacher was terminated because of the - of his posting that I considered to be detrimental to the Howard County Department Fire and Rescue Services and the community that we serve." Goddard Dep. 157:10-14.

Joseph Calo ("Calo"), Battalion Chief for the Administrative Services Bureau of the Fire Department, testified at his deposition that other factors influenced the decision to dismiss Grutzmacher as a volunteer. Calo mentioned two past incidents when Grutzmacher's name "came up" - specifically, "issues at Clarksville" and "issues here [in Howard County] with radio reference."⁸ Calo Dep. 160:19-21. He testified that with Grutzmacher's "name coming up a third time [in connection with the January 20 Facebook posts], the [fire] department just felt like it wasn't worth it[, so] the department made the decision to sever ties." Id. 160:21-161:3.

B. Legal Standard

Grutzmacher contends that the Defendants - specifically the Fire Department, Anuszewski, and Goddard - terminated his volunteer service in retaliation for his exercising his First Amendment right to free speech.

Speech by public employees receives less constitutional protection than speech by private citizens.⁹ See ...