Jamie Marquardt v. Nicole Carlton

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 25, 2023
• Docket: 21-3832
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 23a0054n.06

Case No. 21-3832

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

FILED Jan 25, 2023 ) DEBORAH S. HUNT, Clerk JAMIE MARQUARDT, ) Plaintiff-Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE NORTHERN DISTRICT OF NICOLE CARLTON, et al. ) OHIO Defendants-Appellees. ) ) OPINION

Before: GILMAN, BUSH, and READLER, Circuit Judges.

CHAD A. READLER, Circuit Judge. When a Cleveland police officer shot and killed

twelve-year-old Tamir Rice, protests erupted in Cleveland, capturing the nation’s attention.

Almost fourteen months later, two posts appeared on the Facebook page of Jamie Marquardt, a

Cleveland Emergency Medical Service Captain. The posts expressed the author’s wish that he had

been the one to shoot Rice. When an investigation determined that Marquardt authored the posts,

he was fired. He sued the EMS Commissioner and the City of Cleveland, alleging that the speech

reflected in the Facebook posts was protected by the First Amendment. The district court granted

summary judgment to defendants and Marquardt appealed. Although we acknowledge the many

freedoms that the First Amendment guarantees, in this unique circumstance, defendants had an

overriding interest in preserving the public’s trust in Cleveland EMS’s capacity to serve the public.

On that basis, the district court was correct to grant summary judgment to defendants. We affirm. Case No. 21-3832, Marquardt v. Carlton, et al.

I.

Eight years ago, twelve-year-old Tamir Rice was shot and killed by a police officer. What

happened that day has been well documented. A 911 caller reported a “guy in the park with a

pistol” that was “probably fake.” Dispatchers informed officers that there was a male sitting on a

swing pointing a gun at people. Officers responded to the report. Within seconds of arriving at

the park, one officer shot Rice. Rice’s “pistol” was later determined to be an airsoft gun with the

orange toy markings removed. Cleveland EMS responded and transported Rice to the hospital.

He died the next day from his injuries. Protestors, decrying the use of lethal force, flooded

Cleveland’s streets. The controversy over the shooting did not end in its immediate aftermath.

Some fourteen months later, the event was once again the focus of national scrutiny when news

broke that Cleveland EMS billed Rice’s family $500 for his ambulance ride. Marquardt v.

Carlton, 971 F.3d 546, 550 (6th Cir. 2020) (citing Christine Hauser, Cleveland Drops Attempt

to Collect $500 From Tamir Rice Family, N.Y. Times (Feb. 11, 2016),

https://www.nytimes.com/2016/02/12/us/cleveland-500-bill-tamir-rice-shooting.html (last

accessed Jan. 23, 2023)).

Just days later, two posts referring to the shooting appeared on the private Facebook page

of Jamie Marquardt, a Cleveland EMS Captain. One stated, “Let me be the first on record to have

the balls to say Tamir Rice should have been shot and I am glad he is dead. I wish I was in the

park that day as he terrorized innocent patrons by pointing a gun at them walking around acting

bad. I am upset I did not get the chance to kill the little criminal fucker.” The other said, “How

would you feel if you were walking in the park and some ghetto rat pointed a gun in your

face? Would you look to him as a hero? Cleveland sees this felony hood rat as a hero.” Marquardt

denied making the posts, deleted them, and created a new post disavowing their content.

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Two of Marquardt’s co-workers, paramedics, saw the posts the morning they appeared.

Both contacted EMS Captain Michael Threat. They expressed worry about Marquardt’s well-

being and the risk of “potential civil unrest” should the posts be seen by the public because there

was already “a lot in the media” addressing the Rice incident.

The reports made their way to EMS Commissioner Nicole Carlton. Carlton requested that

the City’s Office of Integrity Control investigate. During the investigation, Marquardt remained

on the job, denying that he authored the posts.

Within three days of the posts appearing on Marquardt’s Facebook page, they caught the

eye of the Cleveland NAACP President, who condemned them in an article on Cleveland.com.

By then, Marquardt acknowledges, the posts had become a national story.

Roughly a month later, Carlton fired Marquardt, attributing authorship of the posts to him.

By making those posts, Carlton concluded, Marquardt violated a host of policies—from EMS’s

mission statement, pledge to the community, and social media policy to the City’s civil service

commission rules. Marquardt’s termination letter stated that the posts were inflammatory, caused

disruption (emphasizing that Marquardt’s co-workers “expressed concern for their own welfare

and safety”), and cast the EMS division as “disrespectful of the tragedy.”

Marquardt disagreed with Carlton’s conclusions. Invoking 42 U.SC. § 1983, Marquardt

sued Carlton and the City for wrongful termination. Of the many claims asserted by Marquardt,

three are at issue here: (1) his claim that defendants terminated him in retaliation for his protected

speech; (2) his facial overbreadth challenge to the EMS social media policy, which he asserted

entitled him to reinstatement and back pay; and (3) his Monell claim that the City failed to properly

train Carlton.

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The parties filed cross-motions for summary judgment. In resolving those motions, the

district court agreed with Marquardt that the EMS social media policy was facially overbroad and

enjoined the City from enforcing the policy, but declined to award Marquardt reinstatement with

back pay. As to Marquardt’s retaliation claim, the district court held that Marquardt’s Facebook

posts did not address a matter of public concern, meaning that defendants had not violated

Marquardt’s First Amendment rights by terminating his employment. And because defendants

committed no constitutional violation, the district court added, Marquardt’s Monell claim also

failed.

Marquardt appealed. We remanded the case back to the district court for further

proceedings on the basis that Marquardt’s posts did address a matter of public concern: whether

the police officer was justified in shooting Rice, leading to his death. Marquardt, 971 F.3d at 553.

On remand, the district court, applying the balancing test announced in Pickering v. Board of

Education, 391 U.S. 563 (1968), held that defendants were nonetheless entitled to summary

judgment on Marquardt’s First Amendment claim because the City’s interest as an employer

outweighed Marquardt’s free speech interest. The district court also granted summary judgment

to the City on the Monell failure-to-train claim and denied Marquardt’s request for back pay and

reinstatement. Marquardt appealed once again.

II.

We review the district court’s grant of summary judgment de novo, drawing all reasonable

inferences in Marquardt’s favor. From that perspective, we must determine whether Carlton and

the City showed an absence of a genuine dispute of material fact such that they are entitled to

judgment as a matter of law. Marquardt, 971 F.3d at 548–59; Fed. R. Civ. P. 56(a).

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A. Marquardt alleges that Carlton and the City violated the First and Fourteenth

Amendments by retaliating against him for the speech in his Facebook posts. To resolve that

claim, we ask three questions: first, whether Marquardt engaged in protected speech; second,

whether his termination would discourage an individual of “ordinary firmness” from engaging in

the activity that led to his discipline; and third, whether his protected speech was a “motivating

factor” behind his termination. Marquardt, 971 F.3d at 549.

1. Today’s case can be resolved by answering the first question, which has multiple

components. The first is whether Marquardt’s speech was made as a private citizen addressing a

matter of public concern, thereby garnering greater protection under the First Amendment. Id.

We previously ruled that his speech so qualified. Id. That being the case, we turn to the next

inquiry, the balancing test articulated in Pickering, which is a matter of law for the Court to decide.

Gillis v. Miller, 845 F.3d 677, 684 (6th Cir. 2017) (citation omitted). Pickering balancing requires

us to assess whether Marquardt’s free speech interests outweighed the interests of the City as an

employer. Marquardt, 971 F.3d at 549 (quoting Rorrer v. City of Stow, 743 F.3d 1025, 1047 (6th

Cir. 2014)). Generally speaking, in deciding the degree of protection an employee’s speech

warrants, the public employer’s “burden in justifying a particular discharge varies depending upon

the nature of the employee’s expression.” Bennett v. Metro. Gov’t of Nashville & Davidson

County, 977 F.3d 530, 538 (6th Cir. 2020) (quoting Connick v. Myers, 461 U.S. 138, 150 (1983)).

We begin with Marquardt’s interest in his speech. It receives significant First Amendment

weight for two reasons: its general content and the context in which it was made. Start with the

content. See Connick, 461 U.S. at 152. In his posts, Marquardt expressed the view that Rice

“deserved to be shot because he was waving a gun at other people.” Marquardt, 971 F.3d at 551.

That speech cannot be restricted merely because it is troubling to others. See, e.g., Snyder v.

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Phelps, 562 U.S. 443, 458, 461 (2011) (explaining that the First Amendment protects “hurtful

speech on public issues to ensure that we do not stifle public debate”). To the contrary, upsetting

speech on public issues still can occupy “the highest rung of the hierarchy of First Amendment

values.” Connick, 461 U.S. at 145 (citing Carey v. Brown, 447 U.S. 455, 467 (1980)). That fairly

describes Marquardt’s posts, which referenced a high-profile public event in distasteful language.

Next, take the time and place of his speech. Rankin v. McPherson, 483 U.S. 378, 388

(1987). Marquardt was terminated for posts made on his private Facebook page while he was at

home and not working. That the City seeks to limit his “off-the-job” speech “raises more First

Amendment red flags,” and confirms Marquardt’s recognized interest in speaking freely on these

subjects. See Bennett, 977 F.3d at 551 (Murphy, J., concurring).

We then proceed to balance Marquardt’s interest against the City’s interest as an employer.

Assessing the City’s interest obliges us to consider whether Marquardt’s speech (1) impairs

discipline by superiors or harmony among co-workers, (2) has a detrimental impact on close

working relationships for which confidence and personal loyalty are necessary, (3) impedes the

performance of Marquardt’s duties or interferes with regular operations of the enterprise, or (4)

undermines the City’s mission. Id. at 540 (citing Rodgers v. Banks, 344 F.3d 587, 602 (6th Cir.

2003)). Together, these factors center on the City’s effective functioning as a public agency. Id.

(citing Rankin, 483 U.S. at 388).

Commissioner Carlton testified that she believed City services would be disrupted if

Marquardt was identified as the author of the posts. Her conclusion, she explained, was informed

by earlier “civil unrest within the City of Cleveland related to the Tamir Rice incident.” Any

visceral reaction to Marquardt’s posts, Carlton predicted, would lead to further “protest[s],”

“disharmony amongst EMS staff,” and employees “refus[ing] to work with Mr. Marquardt.”

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Her conclusion is well taken. Marquardt’s posts were made in an environment where

public reaction to the shooting had been explosive. Those posts, it bears adding, appeared just

days after the City came under fire for billing Rice’s family for his ambulance transport. At the

time of the posts, in other words, the Rice shooting had not faded from the public eye, or the

public’s ire. And in the midst of that uneasy atmosphere, Marquardt’s posts prompted co-workers

to express their concerns to supervisors and sparked a critical statement from the Cleveland

NAACP President that ran in the local news. See Bennett, 977 F.3d at 542. All things considered,

Carlton’s predictions about the controversy that would follow from Marquardt being identified as

the author were grounded in the already-bubbling disturbance.

Carlton’s finding that the posts could undermine EMS’s pledge to “treat[] our patients with

dignity and respect” by portraying the unit as “insensitive” and “uncaring” was also a reasonable

view. Recall that Marquardt’s posts called Rice (who had been an EMS patient) a “little criminal

fucker” and “ghetto rat.” Those statements are at odds with EMS constituents’ “need to believe

that those meant to help them in their most dire moments are fair-minded, unbiased, and worthy

of their trust.” Bennett, 977 F.3d at 538, 542–44 (explaining that a 911 operator’s use of the word

“niggaz” in a Facebook post could lead to “damaged public perception” and cause “many ills” for

an agency that “serves the public directly”) (citation omitted).

In sum, both the City and Marquardt have important interests on their respective sides of

the scale. How, then, do we balance them? This “Solomonic weighting of interests,” we

acknowledge, seemingly is in tension with our “interpretive tradition” of considering the

Constitution’s text, structure, and history. Id. at 553 (Murphy, J., concurring) (quoting Luis v.

United States, 136 S. Ct. 1083, 1101 (2016) (Thomas, J., concurring in the judgment). But we

must apply the law as it is. When we do, context and precedent leads us to the conclusion that the

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City’s interest in preventing the disintegration of public trust in Cleveland EMS’s ability to carry

out its public service mission overrides Marquardt’s interest. An EMS Captain in the very division

that transported Rice (a twelve-year-old shot by the police) to the hospital called the boy a “ghetto

rat” and expressed a desire to have been the one to kill him. These comments were made in the

wake of a gripping national media storm that had reignited just days earlier. In instances like this,

where “close working relationships are essential to fulfilling public responsibilities” like the

emergency medical services at issue here, we should cede to the employer’s decision. Connick,

461 U.S. at 151–52. Doing so honors “‘the importance of deference’ . . . when speech threatens

to undermine the functions of organizations charged with maintaining public safety.” Gillis, 845

F.3d at 684. All told, the charged speech at issue and its actual and predicted disruptive effect on

the City’s services tip the Pickering balance in its favor.

2. Marquardt resists this conclusion on two grounds. He first emphasizes that there was

no evidence of actual disruption to the City—no interference with discipline or with harmony

among co-workers, no effect on Marquardt’s performance or duties, and no actual disruption to

EMS services. Even assuming Marquardt is correct, a public employer does not always have to

show actual disruption to prevail under the Pickering balancing test. Gillis, 845 F.3d at 687.

Rather, the City may “reasonably predict that the employee speech would cause disruption, . . . in

light of ‘the manner, time, and place’ the speech was uttered, as well as ‘the context in which the

dispute arose.’” Id. (quoting Rankin, 483 U.S. at 388). And, as already explained, we see no

reason to question the City’s prediction of future disruption. Id. True, as Marquardt notes, the

City waited a month after the posts were made to terminate him. Yet during that time, Marquardt

maintained that he did not author the posts. When the City confirmed that he did, he was fired.

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Marquardt also urges us not to rely on Bennett. There, we held that the City’s interest as

an employer outweighed a 911 operator’s interest in using racially offensive language in a

Facebook comment. See Bennett, 977 F.3d at 545. Distinguishing Bennett, Marquardt notes that

Bennett’s Facebook profile was public-facing, while Marquardt’s was not, and that Bennett

identified herself as a city employee, while Marquardt did not. See id. at 533. But that accounting

ignores the fact that—despite whatever privacy setting Marquardt had on his Facebook page—his

posts were not kept private and eventually captured the attention of the Cleveland NAACP

President and of Marquardt’s co-workers. And although Bennett (unlike Marquardt) was placed

on leave the day after her posts appeared, Marquardt was allowed to continue working because he

denied that he made the posts. Once the City ultimately concluded that Marquardt had made the

posts, he, like Bennett, was deemed unfit to serve in his government position. See id. at 535.

B. This conclusion resolves the remainder of Marquardt’s appeal. Our holding that

Marquardt was not terminated in violation of the First Amendment moots his Monell claim against

the City, which centered on the City’s purported failure to train its workforce against

impermissibly restricting employee speech. See Scott v. Clay County, 205 F.3d 867, 878–79 (6th

Cir. 2000) (no Monell liability without an underlying constitutional violation). Marquardt’s

request for reinstatement with back pay due to the City’s purportedly overbroad social media

policy also fails. The City discharged Marquardt for violating eight other regulations as a result

of his Facebook posts—none of which the district court found were unconstitutional. If the social

media policy did not exist, in other words, the City would have “reached the same decision as to”

Marquardt’s employment. Cf. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,

286–87 (1977) (noting that an adverse employment action based in part on conduct protected by

the First Amendment does not necessarily amount to a violation justifying remedial action if the

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protected conduct was not a but-for cause of the adverse action). As a result, the City’s overbroad

social media policy would not make Marquardt’s termination unlawful when that decision was

justified under numerous other policies. And because we affirm the district court on the merits,

Marquardt’s request to vacate the district court’s fees and costs order is moot.

* * * * *

We affirm the judgment of the district court.