Cochran v. City of Atlanta

• Decision Date: 20 December 2017
• Docket Number: CIVIL ACTION NO. 1:15–CV–0477–LMM
• Citation: 289 F.Supp.3d 1276
• Parties: Kelvin J. COCHRAN, Plaintiff, v. CITY OF ATLANTA, GEORGIA and Mayor Kasim Reed, in his individual capacity, Defendants.
• Court: U.S. District Court — Northern District of Georgia

289 F.Supp.3d 1276

Kelvin J. COCHRAN, Plaintiff,

v.CITY OF ATLANTA, GEORGIA and Mayor Kasim Reed, in his individual capacity, Defendants.

CIVIL ACTION NO. 1:15–CV–0477–LMM

United States District Court, N.D. Georgia, Atlanta Division.

Signed December 20, 2017

Christiana M. Holcomb, Alliance Defending Freedom, Washington, DC, David Andrew Cortman, J. Matthew Sharp, Rory Thomas Gray, Alliance Defending Freedom, Lawrenceville, GA, Douglas G. Wardlow, Jeana Hallock, Jeremy D. Tedesco, Jonathan A. Scruggs, Kenneth J. Connelly, Kevin Hayden Theriot, Samuel D. Green, Alliance Defending Freedom, Scottsdale, AZ, Garland Raphael Hunt, Hunt & Associates, Alpharetta, GA, Jonathan Dean Crumly, Sr., Taylor English Duma LLP, Atlanta, GA, for Plaintiff.

David E. Gevertz, Hannah Elizabeth Jarrells, Kathryn Joann Hinton, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC, Atlanta, GA, for Defendants.

ORDER

Leigh Martin May, United States District Judge

This case comes before the Court on Defendants City of Atlanta, Georgia, and Mayor Kasim Reed's Motion for Summary Judgment [105] and Plaintiff's Motion for Partial Summary Judgment [107].¹ This matter concerns whether the City could fire the Fire Chief of the Atlanta Fire and Rescue Department ("AFRD") for publishing a book to be used as a religious guide for men that contains passages identifying those who engage in homosexual and extramarital sex as "naked"—or "wicked," "un-Godly" sinners—whose deaths will be celebrated. See Cochran Dep., Dkt. No. [154] at 176:24–178:15. Plaintiff contends that he was fired because of his religious speech—which is grounded in conservative Christian principles—in violation of the Constitution, while Defendants contend that he was fired because he did not comply with the City's pre-clearance rules for outside employment and for facilitating a massive public relations campaign against the Mayor and the City. Defendants also contend that Plaintiff's speech made the City potentially vulnerable to employment discrimination claims and substantial disruption.

1. Factual Background

Plaintiff Kelvin J. Cochran was first appointed Fire Chief of the Atlanta Fire Rescue Department ("AFRD") in 2008. Defs.' Resp. to Pl.'s Stm't of Facts, Dkt. No. [141] ¶ 5. In 2009, Plaintiff left the AFRD to serve as Administrator of the United States Fire Administration, but he returned ten months later. Id. ¶¶ 6, 9. Plaintiff remained the AFRD Fire Chief until January 6, 2015. Id. ¶ 129.

Plaintiff is also a devout evangelical Christian who holds "historic Christian beliefs" and is a member and Deacon at Elizabeth Baptist Church. Id. ¶¶ 16, 18. Plaintiff's Christian views compel him to "honor God in all aspects of his work by doing everything with excellence throughout his job," and "compel him to treat all fire department staff under his command, and all members of the community he serves, with dignity, justice, equity, and respect, regardless of their personal traits, characteristics, and beliefs." Id. ¶¶ 17, 20.

Plaintiff was generally regarded as an excellent Fire Chief. Id. ¶¶ 29–30. In 2008, when Plaintiff became Atlanta's Fire Chief, he set out to assemble a group of firefighters within the AFRD who represented diverse backgrounds, characteristics, and beliefs. Id. ¶ 23. Plaintiff knew at least two LGBT employees were members of this group. Id. ¶ 24. Plaintiff also had experienced racial discrimination in his early years in fire service, so he worked diligently to ensure that no one in his command would be mistreated because of his or her membership in a particular group. Id. ¶ 28.

In late 2013, Plaintiff wrote and self-published a book entitled "Who Told You That You Were Naked?: Overcoming the Stronghold of Condemnation." Id. ¶¶ 38, 44. Plaintiff's book was inspired by a men's Bible study at Plaintiff's church, which included a unit on God's question to Adam, "Who told you that you were naked?" Id. ¶¶ 31–33.² Plaintiff's book was written primarily for Christian men and is intended to help them fulfill God's purpose for their lives. Id. ¶ 38. According to Plaintiff, one of the book's goals is to guide men to live faith-filled, virtuous lives. Id. ¶ 39.

The book includes passages indicating that sex was created for procreation and marital pleasure in holy matrimony, and that sex outside of the confines of marriage between a man and woman—including fornication, homosexual acts, and all other types of non-marital sex—is contrary to God's will. Id. ¶¶ 40–41. The book also categorizes the following as equally "unclean"—or "whatever is the opposite of purity": "sodomy, homosexuality, lesbianism, pederasty, bestiality, and all other forms of sexual perversion." Book, Dkt. No. [106–3] at 20. Plaintiff claims this list originated from his study of Galatians 5:19–21, which lists 17 "works of the flesh." Cochran Dep., Dkt. No. [154] at 192:1–6. The City has admitted that "[t]hese teachings are consistent with the Bible and historic Christian teaching." Defs.' Resp. to Pl.'s Stm't of Facts, Dkt. No. [141] ¶ 42.

The basic premise of the book is the dichotomy between being "naked" and "clothed" in the Bible. Pl. Resp. to Defs.' Stm't of Facts, Dkt. No. [144] ¶ 33. According to Plaintiff, a "naked" man is one who lacks a working relationship with God, and a "clothed" man is one who enjoys a working relationship with God because he has accepted Jesus Christ as his Lord and Savior. Id. ¶ 34. To become "clothed," one must be a born-again Christian. Cochran Dep., Dkt. No. [154] 174:9–10. Essentially, per Plaintiff, "naked means that you're a sinner, and clothed means you're righteous." Id. at 176:2–4.

Plaintiff writes that the Bible teaches the following are synonyms for nakedness: "wicked," "un-Godly," "evildoers," "deceitful," "mischievous," and "loathsome." Id. at 176:24–178:23. Citing Proverbs, Plaintiff writes that when the naked die, there is joy and celebration. Id. at 177:16–178:15. And there are not gradations of nakedness—every person, if naked, is equally sinful. Pl.'s Resp. to Defs.' Stm't of Facts, Dkt. No. [144] ¶ 36. But a clothed person can still transgress; Plaintiff states that he wrote his book to assist clothed men in avoiding "issues" with these works of the flesh through their desire to please God. Cochran Dep., Dkt. No. [154] at 194:20–195:1, 199:1–3.

Plaintiff also wrote a section entitled, "You Need to Talk to My Husband." Book, Dkt. No. [107–9] at 25. It opens with a hypothetical that discusses what would have happened if Eve had, instead of eating the forbidden fruit, first told the serpent that he needed to talk to her husband. Id. Plaintiff suggests that had Eve first come and spoken to her husband, the Fall³ would not have occurred. Id. Plaintiff believes those

words coming from Eve would have empowered and emboldened Adam as the protector of Eve and the Garden. He would have responded with righteous indignation and killed the serpent on the spot—even cut off his head. The scriptural account could have possibly been, "And the Spirit of the Lord came upon Adam, and he cut off the serpent's head and they lived happily ever after."

Id. Plaintiff states that "[u]nfortunately, that's not what happened." Id. Rather, Eve ate the fruit and gave some to her husband. Id.

Plaintiff maintains that this book is not intended for women, so he was not concerned with including examples of virtuous, biblical women in his book. Instead, women were used as an "issue" or "challenge" that men "wrestle with." Cochran Dep., Dkt. No. [154] at 189:5–190:2. In the "About the Author" section of the book, Plaintiff states that he is "currently serving as the Fire Chief of the City of Atlanta Fire Rescue Department (GA)." Pl.'s Resp. to Defs.' Stm't of Facts, Dkt. No. [144] ¶ 40.

The City maintains three pre-clearance rules which require the AFRD Chief to seek permission from the Board of Ethics and his or her supervisors prior to beginning any outside employment (hereinafter, "Pre–Clearance Rules").⁴ Plaintiff never sought or received permission from the Board of Ethics to sell his book, and he never discussed his plan to sell his book with either of his supervisors, Mayor Reed or Chief Operating Officer Michael Geisler. Id. ¶¶ 42–43; Defs.' Resp. to Pl.'s Stm't of Facts, Dkt. No. [141] ¶ 90. However, on October 31, 2012, Plaintiff called Nina Hickson, the City of Atlanta Ethics Officer, for advice about a "non-city-related" book he was authoring. Id. ¶ 35. It is disputed what was said during this conversation, including whether Plaintiff discussed the book's subject matter or if Hickson indicated Plaintiff would need Board of Ethics approval for such a book. Id. ¶ 44.⁵

In early 2014, after the book was published, Plaintiff provided book copies to between 9 and 12 of his Christian subordinates at the AFRD, all of whom were either: (1) close personal friends who asked for a copy before it was finished; (2) employees who asked about the book once they learned of its publication; or (3) men who Plaintiff gave an unsolicited copy of the book. Cochran Dep., Dkt. No. [154] at 140:2–141:15, 142:11. These subordinates included all four of his Deputy Chiefs and four of the six Assistant Chiefs. Id. at 216:21–217:18. Plaintiff also contends that he provided Mayor Reed with a copy via Mayor Reed's assistant, though Mayor Reed disputes that fact. Defs.' Resp. to Pl.'s Stm't of Facts, Dkt. No. [141] ¶ 46. From the time the book was published until late 2014, the City did not receive any complaints about the book. Id. ¶ 49.

In November 2014, Assistant Chief Wessels—one of Plaintiff's subordinates and one of the individuals who had received a copy of the book from Plaintiff during a work event—brought Plaintiff's book to the attention of Stephen Borders, the President of the local firefighter's union. Id. ¶¶ 50–51. Wessels had received the book in June or July 2014, but had only just read it. Wessels told Borders that some passages were disturbing to him—especially because Plaintiff referred to himself as the...