468 F.3d 1276 (11th Cir. 2006), 05-12207, Mitchell v. Hillsborough County

Docket Nº:05-12207.
Citation:468 F.3d 1276
Party Name:Gary MITCHELL, Plaintiff-Appellant, v. HILLSBOROUGH COUNTY, a political subdivision of the State of Florida, Defendant-Appellee.
Case Date:October 31, 2006
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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468 F.3d 1276 (11th Cir. 2006)

Gary MITCHELL, Plaintiff-Appellant,


HILLSBOROUGH COUNTY, a political subdivision of the State of Florida, Defendant-Appellee.

No. 05-12207.

United States Court of Appeals, Eleventh Circuit.

October 31, 2006

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Luke Charles Lirot, Luke Lirot, P.A., Clearwater, FL, for Mitchell.

Robert Eric Brazel, Tampa, FL, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida, D.C. Docket No. 03-00822-CV-T-27-TGW

Before TJOFLAT and KRAVITCH, Circuit Judges, and JORDAN, [*] District Judge.

TJOFLAT, Circuit Judge

Gary Mitchell, a former part-time employee of Hillsborough County ("the County"),

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appeals the district court's entry of judgment in favor of the County after a bench trial on his First Amendment retaliation claims brought pursuant to 42 U.S.C. § 1983. We are asked to decide whether distasteful comments made by Mitchell before the Hillsborough County Board of County Commissioners ("BOCC") touched on a matter of public concern and, if so, whether the County was nonetheless justified in terminating Mitchell's employment. Because we find that Mitchell's comments did not touch on a matter of public concern and, in any event, the County was justified in terminating Mitchell's employment, we affirm.

In part I of this opinion, we lay out the undisputed factual events that precipitated Mitchell's firing and subsequent lawsuit. In part II, we discuss why Mitchell's comments to the BOCC did not touch on a matter of public concern, and thus could not support a retaliation claim. Part III then discusses why, even if Mitchell's comments could be considered protected First Amendment speech, the County's interests in the orderly and efficient operation of its communication services overrides Mitchell's negligible interest in the speech at issue. Part IV briefly concludes.


The parties do not dispute the underlying facts in this case. From September 1999 through April 18, 2002, Mitchell worked in the Hillsborough County Communications Department as a cameraman for the Department's television station, Hillsborough Television ("HTV"). The County owns and operates HTV, and its primary function is to provide live coverage of public BOCC hearings and meetings.1 In addition to being employed part-time by HTV, Mitchell was a volunteer producer of television programs for the independent public access television station in Tampa, which is run by Speak Up Tampa Bay Public Access Television, Inc., a non-profit corporation ("Public Access").2 Public Access receives partial funding from the County's general budget through a contract with the County.3 Public Access operates separately from HTV, however, and the County has no control over its programming content.4

At the time of his termination, Mitchell was a camera operator for HTV who worked on the twenty-eighth floor of the County building, twenty-six floors above the BOCC's meeting room. Mitchell's job was to operate remotely four cameras located at fixed sites in the BOCC meeting room. As a cameraman, he positioned, framed and focused these cameras. His job did not require any regular interaction with BOCC members, as they relayed any requests or complaints directly to the HTV

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floor director located in the BOCC room.5

Mitchell was terminated by the County as a result of comments he made referencing Commissioner Rhonda Storms during an afternoon BOCC meeting on April 17, 2002. Mitchell attended the meeting on his own behalf, and not as a representative of the County. His comments were made during the time period set aside for open public discussion.6

While the parties dispute whether Mitchell's comments touched on a matter of public concern, they agree that at the time of Mitchell's remarks, a public controversy had developed regarding the County's continued funding for Public Access. The Public Access debate began in earnest at an April 3, 2002 meeting of the BOCC. At that meeting, Storms questioned whether Public Access had violated its contract with the County by airing a program containing adult content. Public Access had aired the program without including a warning that it was meant for "mature audiences." Storms argued that this constituted a breach of contract and, as a consequence, the County should discontinue its Public Access funding.

The program in question, entitled "The Happy Show," had depicted a man reading a children's book aloud interspersed with scenes of nudity.7 It is undisputed that the subject of this particular program, and the resulting debate over continued County funding for Public Access, had been the subject of numerous news media reports prior to Mitchell's termination two weeks later.

In accordance with the BOCC's usual practices, the next meeting, held on April 17, included a time set aside for open public comment. Commissioner Pat Frank opened up the meeting for public discussion by stating: "Now, we are going to discuss public access. We've spent a lot of time on this particular issue." Mitchell was the first to speak. He stood at the podium and made the following comments:

Gary Mitchell, 808 East Chelsea. And I am here representing the Thunderheads, you see? [indicating a lightning bolt taped to his beret] The Thunderheads is a political support group, and we are looking for more people to support, such as yourselves; therefore,

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I've come to address you all, letting you know our services are available to you. Right at the moment we are in full complete support of Ms. Storms. She is wonderful in every way. We have the highest regard for her. We think she is correct in all of her thinking. I think there's a lot of people here that agree with me on that. Yes.


The only problem we have, Ms. Storms, is that our meetings since you brought up this preoccupation you have with other women's vaginas, we are – the meetings are degenerating into one side wanting to call you Vagi, and the other side are [sic] saying Gina, Gina [pronounced ji-nah]. My position is Gina, I think that's probably much more appropriate, okay? But I would like some time for you to make this clear to us which you would prefer to be called, Vagi or Gina, okay? Now, we're liable – we're happy to work with all of you for the rest of this. We love you. We love you. Do you mind if I call you Vagi or would you prefer me call you Gina? I prefer Gina. Anyway, we are the Thunderheads, and the reason we're called Thunderheads is because storm clouds, you know, Thunderheads, storm clouds, yes. And we even – we even have our own special thunder wave, and we saved this for our best loving people. Now, we go [Mitchell stuck out his tongue and wiggled it] – like that, and that's only a sign of great respect and love. Now, of course, we have the thunder spring showers, which is the highest form, which is [Mitchell performed a raspberry] – okay. Fine. We wonder where the wave came from. Actually, it's –8

At this point, the bell indicating time was lapsing went off, and Commissioner Frank told Mitchell his time had expired.9 There is no indication in the record as to how Storms or the other commissioners reacted to Mitchell's speech.

Michael Foerster, the Director of the County's Communications Department, Mitchell's ultimate boss, heard Mitchell's comments as he made them. He was in his office on the twenty-eighth floor watching the meeting on television. He testified that he had no idea what Mitchell was talking about, and that he did not connect the speech to the Public Access issue in any way. He construed Mitchell's speech to be a personal attack on Storms and was "deeply shocked and dismayed" by the remarks. Foerster decided immediately to terminate Mitchell.

Within an hour of Mitchell's comments, Foerster held a meeting with HTV station manager Greg Vawter10 and production manager Steve McClure. Foerster instructed

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Vawter to fire Mitchell because "someone who comports himself in such a manner has lost my confidence as a director and certainly would lose the confidence of the entire staff[.]"11 Vawter then went to McClure's office, where Mitchell was summoned and told that his services were no longer needed at HTV. Mitchell was informed that the termination was a result of his comments at the April 17, 2002 meeting.12 Mitchell did not immediately take issue with his termination, instead simply nodding and leaving the office.

Mitchell filed this § 1983 suit in the Hillsborough County Circuit Court in April 2003. He alleged that the County violated his civil rights, in that his statements were meant to criticize the BOCC's "anti-First Amendment violations as it [sic] related to the public access television issue [.]" Mitchell claimed that his comments to the BOCC were protected speech; therefore, his termination as a result of those comments constituted retaliation by the County for the exercise of his First Amendment rights. This retaliation, Mitchell asserted, entited him to relief under § 1983. Mitchell further argued that the County had no reasonable interest in firing him, since his position merely called for taking direction from the technical director, and involved no interaction with BOCC members.13 Mitchell sought declaratory relief and damages, including reinstatement to his part-time position with HTV. The County removed the case to the district court and the parties consented to a bench trial before a magistrate judge.14

After considering the parties' submissions, the district court held that Mitchell's

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speech before the BOCC did not touch on a matter of public concern, and accordingly, was not protected by the First Amendment for purposes of Mitchell's retaliation claim. Moreover...

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