Starling v. BOARD OF COUNTY COM'RS

Decision Date06 April 2010
Docket NumberNo. 09-11168.,09-11168.
Citation602 F.3d 1257
PartiesRandolph STARLING, Plaintiff-Appellant, v. BOARD OF COUNTY COMMISSIONERS, Palm Beach County, Ken Fischer, in his official and individual capacity, Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Isidro M. Garcia, Garcia Law Firm, P.A., West Palm Beach, FL, for Starling.

Barry Seth Balmuth, Barry S. Balmuth, P.A., Andrew Marcus Pelino, Leonard Berger, West Palm Beach, FL, for Defendants-Appellees.

Before DUBINA, Chief Judge, KRAVITCH, Circuit Judge, and ALBRITTON,* District Judge.

KRAVITCH, Circuit Judge:

The primary question in this appeal is whether Palm Beach County and one of its Fire Department officers violated a firefighter's First Amendment right to intimate association when they demoted him for an extramarital affair with one of his subordinates. We conclude that they did not violate the Constitution because the County's interest in discouraging extramarital association between supervisors and subordinates is so critical to the effective functioning of the Fire Department that it outweighs the firefighter's interest in extramarital association with a subordinate, even if we assume arguendo that the First Amendment protects extramarital association as fundamental right.

I. Facts

Randolph Starling is a former firefighter in the Palm Beach County Fire Rescue Department. In May 2005, when he was a "rescue captain," he arranged to have Carolyn Smith, another firefighter, transferred to his fire station as his subordinate. Sometime during the next few months, Smith and Starling—then married but separated from his wife—began an intimate relationship. Starling's wife filed for divorce in July, and he moved in to Smith's house in October, although his divorce did not become final until April, 2006. Starling and Smith's cohabitation was common knowledge among their friends and coworkers, and they married in June 2006.

According to Starling, soon after moving in with Smith, he learned that Ken Fisher, his direct supervisor, had been using Smith's home for extramarital trysts with another married firefighter. When Smith told Starling that Fisher had once solicited her (through the other firefighter) for a three-person sexual encounter, Starling asked her to stop letting Fisher use her home. Starling alleges that this angered Fisher, who threatened him with disciplinary action and told him to end his relationship with Smith.

When Starling and Smith continued their association, Fisher allegedly began saying offensive things about their relationship and following Smith on the job, in an attempt to catch her doing something wrong. Starling requested transfers for Smith and himself, but those requests were denied. He also complained to his union representative. Starling claims that when Fisher learned of the union's involvement, he threatened to "see to it" that Starling would lose his "captain's bars." Fisher disputes these allegations in their entirety and alleges that Starling's relationship with Smith was damaging the effectiveness of his battalion.

On January 11, 2006, Fisher issued an Employee Development Form (EDF) stating that Starling's "preoccupation" with Smith was "causing a disruption for the station officer and for the crew" and urging Starling to "return his performance to its past level." The EDF also stated that Starling had delivered a package for Smith when he was supposed to be responding to a call, cancelled a training session to spend time with her, and helped her at night with her reports while he was on duty. Although the EDF was not designed for disciplinary purposes, it warned Starling that his failure to prioritize "making station rounds and being more consistent with his daily routine" could "lead to initiation of a special performance review or disciplinary action." Starling responded to the EDF, without denying any specific accusations, by complaining of the "hostile work environment" Fisher had created for him and Smith.

Within ten days, Starling learned that he faced potential disciplinary action for his conduct in three separate incidents during the previous year and a half. Starling claimed that Fisher misrepresented the seriousness of these incidents to punish him for continuing his relationship with Smith. Nevertheless, on February 13, Herman Brice, the County's Fire Rescue Administrator and the only person with the authority to discipline Department employees, demoted Starling from captain to "firefighter/paramedic." Starling accepted union representation and filed a grievance, which Brice denied after a hearing at which Starling had union representation. The union declined to pursue arbitration of the dispute—a decision left to its discretion under the terms of the collective-bargaining agreement—on the basis that Starling's claim lacked merit.

Starling sued Fisher and the County under 42 U.S.C. § 1983 for violating his First Amendment right to intimate association. Fisher denied playing any role in Starling's demotion. Brice denied having any knowledge of Starling's relationship with Smith until after the demotion. With these denials, and arguing that Starling had no First Amendment right to engage in an "adulterous" relationship with Smith, the defendants moved for summary judgment.

Starling opposed the defendants' motion, relying primarily on his mother's affidavit describing a conversation she had with Brice. During that conversation, Brice allegedly said that Fisher had repeatedly complained about Starling's relationship with Smith. Brice also said that he "typically followed his staff on disciplinary matters." Starling also disputed the defendants' assertion that the First Amendment did not protect his right to intimate association with Smith.

The district court granted the defendants' motion for summary judgment after concluding that there was no genuine issue of material fact as to whether Brice—who imposed the discipline—knew of Fisher's allegedly improper motives. In addition, the court ruled that Fisher was entitled to qualified immunity because Starling's First Amendment right to intimate association with Smith was not clearly established. The court did not resolve whether the First Amendment protected Starling's association with Smith. Starling appeals.

II. Discussion

We review the district court's summary judgment order de novo. Shuford v. Fid. Nat'l Prop. & Cas. Ins. Co., 508 F.3d 1337, 1341 (11th Cir.2007). Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

Starling challenges the district court's summary judgment order on several grounds, but we conclude that, regardless of the merits of these arguments, neither Fisher nor the County can be held liable for violating Starling's alleged constitutional rights. See Burton v. Tampa Hous. Auth., 271 F.3d 1274, 1277 (11th Cir.2001) ("A grant of summary judgment may be upheld on any basis supported by the record."). We reach this conclusion by applying the balancing test developed to assess the constitutionality of burdens on constitutional rights in the public-employment context from Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).1See Shahar v. Bowers, 114 F.3d 1097, 1103 (11th Cir.1997) (en banc) (applying Pickering in the intimate-association context). "Pickering balancing, in the public employment context, involves the weighing of the employee's interest in the exercise of a constitutional right against the employer's interest in maintaining an efficient workplace." Id. at 1112 (Tjoflat, J., concurring specially).

In this case, we conclude that the County's interest in discouraging intimate association between supervisors and subordinates is so critical to the effective functioning of its Fire Department that it outweighed Starling's interest in his relationship with Smith in the workplace. In reaching this conclusion, we do not address whether the First Amendment protects intimate, extramarital association.2 Instead, we assume arguendo that Starling's right to intimate, extramarital association with Smith is fundamental.3 See, e.g., Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 445, 108 S.Ct. 1319, 99 L.Ed.2d 534 (1988) ("A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.").

Our conclusion rests on our assessment of the County's interest in discouraging extramarital affairs between supervisors and subordinates in the Fire Department. "Operational efficiency" is a "vital government interest." United States v. Nat'l Treasury Employees Union, 513 U.S. 454, 473, 115 S.Ct. 1003, 130 L.Ed.2d 964. We therefore ask whether Starling's affair with his subordinate (1) "impaired discipline by superiors or harmony among co-workers," (2) "had a detrimental impact on close working relationships for which personal loyalty and confidence were necessary," or (3) "impeded the performance of the...

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