Owens v. Propes

601 F.Supp.3d 1360

William OWENS, Plaintiff,

v.Logan PROPES, R.V. Watts, and the City of Monroe, Defendants.

CASE NO. 3:21-CV-84 (CDL)

United States District Court, M.D. Georgia, Athens Division.

Signed April 13, 2022

David C. Will, Lawrenceville, GA, for Plaintiff.

John D. Bennett, Atlanta, GA, Jacob T. McClendon, Atlanta, GA, Timothy Michael Boughey, Atlanta, GA, for Defendants.

ORDER

CLAY D. LAND, UNITED STATES DISTRICT COURT JUDGE

William Owens, the City of Monroe's former fire chief, claims that Defendants terminated him from his job in retaliation for exercising his First Amendment Rights and for reporting unlawful acts by City officials. Owens also asserts that Defendants illegally accessed the Apple watch of someone with whom he had an "intimate" relationship and violated Owens's right to privacy. Defendants moved to dismiss all of Owens's claims. For the reasons set forth below, the motion to dismiss (ECF No. 17) is granted as to all of Owens's claims except his First Amendment public speech claim against the City and Logan Propes and his Georgia Whistleblower Act claim against the City.

MOTION TO DISMISS STANDARD

"To survive a motion to dismiss" under Federal Rule of Civil Procedure 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). The complaint must include sufficient factual allegations "to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. In other words, the factual allegations must "raise a reasonable expectation that discovery will reveal evidence of" the plaintiff's claims. Id. at 556, 127 S.Ct. 1955. But " Rule 12(b)(6) does not permit dismissal of a well-pleaded complaint simply because ‘it strikes a savvy judge that actual proof of those facts is improbable.’ " Watts v. Fla. Int'l Univ. , 495 F.3d 1289, 1295 (11th Cir. 2007) (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).

FACTUAL ALLEGATIONS

William Owens was the City of Monroe's fire chief. Logan Propes is Monroe's city administrator, and R.V. Watts is the City's police chief. The City offered a program called "Shop with a Hero," which was started by a group of local realtors but was under Propes's control. Am. Compl. ¶¶ 39, 42, ECF No. 14. The program included fire department personnel and other first responders. In light of citizen inquiries about how program funds were used, Owens publicly suggested that the program be run by a private non-profit organization, not the City. Id. ¶ 41. After Owens made these comments, Propes, who was Owens's direct supervisor, recommended that the City terminate Owens from his position as fire chief, and the City did so. Id. ¶ 45. Owens alleges that his public comments about the "Shop with a Hero" program were a motivating factor behind this decision. Id.

During the same timeframe, Watts and Propes learned that Owens had a relationship with K.I. Owens does not allege any specific facts about his relationship with K.I.—only that he had a "professional and personal relationship with K.I." and that the relationship was "intimate." Id. ¶ 11. Owens and K.I. had regular electronic communications via their personal electronic devices, including K.I.’s Apple watch. In May 2020, K.I. was in the hospital for surgery, and K.I.’s son accessed K.I.’s Apple watch and discovered communications between Owens and K.I. K.I.’s son shared the communications from the Apple watch with Watts and Propes. Watts and Propes later shared the communications with other individuals. K.I.’s son asked Propes to terminate Owens from his position as fire chief based on the communications he found on the Apple watch. Propes later demanded that Owens resign and threatened that if he did not, Owens would be terminated for "conduct unbecoming" based on his relationship with K.I. Id. ¶ 25. Owens advised the City of the actions taken by Watts and Propes with regard to K.I.’s Apple watch. Soon after that, Owens was terminated from his job as fire chief.

DISCUSSION

Owens asserts three claims against Watts, Propes, and the City pursuant to 42 U.S.C. § 1983 : (1) First Amendment claim that Defendants retaliated against him for commenting on the "Shop with a Hero" program, (2) First Amendment claim that Defendants interfered with his right to associate with K.I., and (3) Fourth Amendment claim based on accessing the electronic communications on K.I.’s Apple watch. Owens also contends that when Watts and Propes accessed the stored communications on K.I.’s Apple watch, they violated the federal Stored Communications Act, as well as Georgia law. Finally, Owens claims the City retaliated against him in violation of the Georgia Whistleblower Protection Act after he reported Watts and Propes for accessing and disclosing stored communications on K.I.’s Apple watch. The Court addresses each claim in turn.

I. First Amendment Public Speech Claim

Owens alleges that his public comments on the "Shop with a Hero" program were a motivating factor behind his termination. The Supreme Court "has made clear that public employees do not surrender" their free speech rights entirely "by reason of their employment." Garcetti v. Ceballos , 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). The First Amendment still provides some protection for a public employee who speaks (1) "as a citizen" (2) "addressing matters of public concern." Id. If the employee speaks as a citizen addressing matters of public concern, the Court must determine whether the employee's speech merits protection under the balancing test established in Pickering v. Board of Education , 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). Garcetti , 547 U.S. at 418, 126 S.Ct. 1951.

Defendants do not dispute that Owens addressed a matter of public concern when he proposed a management change for the "Shop with a Hero" program in light of missing funds and questions about how the program's funds were being spent. As the Supreme Court recognized, "[e]xposing governmental inefficiency and misconduct is a matter of considerable significance." Garcetti , 547 U.S. at 425, 126 S.Ct. 1951. Defendants argue, however, that Owens was not speaking as a "citizen." An employee does not speak as a citizen if his speech "owes its existence to" his "professional responsibilities." Garcetti , 547 U.S. at 421–22, 126 S.Ct. 1951 (concluding that an internal memorandum prepared by a prosecutor in the course of his ordinary job responsibilities was not speech "as a citizen"). But the fact that a person's "speech concerns information acquired by virtue of his public employment does not transform that speech into employee—rather than citizen—speech." Lane v. Franks , 573 U.S. 228, 240, 134 S.Ct. 2369, 189 L.Ed.2d 312 (2014). Instead, the critical question "is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties." Id. at 239-240, 134 S.Ct. 2369 (noting that testimony in a criminal trial, compelled by subpoena, is speech outside the employee's ordinary job responsibilities—thus citizen speech—even if it relates to his public employment).

Owens's complaint contains no details about the context of his public comments regarding the "Shop with a Hero" program. His brief in opposition to the pending motion to dismiss explains that he commented on the program during a public meeting. The complaint also omits any allegations that Owens had any role in the "Shop with a Hero" program as part of his job as the fire chief or that the program was part of his ordinary job responsibilities. Rather, he alleges that while fire department personnel and other first responders could participate in the program, the program was started by realtors and administered by the City administrator. Owens's complaint also makes no allegation that he learned about funding issues regarding the program in his capacity as fire chief but that citizen inquiries regarding the program's finances led him to recommend that the program be administered by someone other than the City administrator. Taking the allegations of the complaint as true and drawing all reasonable inferences in Owens's favor, as the Court must do at this stage in the litigation, Owens adequately alleges that the purpose of his speech was to raise issues of public concern, not to air a private employee grievance. Thus, Owens sufficiently alleged that he spoke as a "citizen" and that his speech was eligible for constitutional protection.

The next question is whether Owens's speech as alleged in the amended complaint merits protection under the Pickering balancing test. The "government has an interest in preventing speech that is disruptive to the efficient rendering of public services." Akins v. Fulton Cnty. , 420 F.3d 1293, 1304 (11th Cir. 2005). Defendants argue that this concern—particularly the reputation of the City's fire department—is paramount here and that Owens's comments about a program run by the City administrator could cause the public to lose confidence in the fire department. In support of this argument, Defendants cite Busby v. City of Orlando , where a police department employee reported malfeasance by her supervisors and the department sought to delay (but not prevent) her access to a public forum until after the internal affairs division could investigate her complaints, since her allegations would disrupt the efficient operation of the police department. 931 F.2d 764, 774 (11th Cir. 1991) (per curiam). Importantly, Owens's alleged speech here did not implicate the efficient operation of the fire department. Furthermore, there is no allegation that an investigation of the program was pending at the time Owens made his comments and thus no indication his comments disrupted a pending...