Cochran v. City of Atlanta

• Decision Date: 16 December 2015
• Docket Number: CIVIL ACTION NO. 1:15-CV-0477-LMM
• Citation: 150 F.Supp.3d 1305
• 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

150 F.Supp.3d 1305

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 16, 2015

David Andrew Cortman, J. Matthew Sharp, Rory Thomas Gray, Alliance Defending Freedom, Lawrenceville, GA, Garland Raphael Hunt, Hunt & Associates, Alpharetta, GA, Jeremy D. Tedesco, Jonathan A. Scruggs, Kevin Hayden Theriot, Alliance Defense Fund, Scottsdale, AZ, Jonathan Dean Crumly, Sr., Maner Crumley Chambliss, LLP, Atlanta, GA, for Plaintiff.

Robert N. Godfrey, Timothy M. Boughey, Y. Soo Jo, City of Atlanta Law Department, 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 to Dismiss [11]. Following a review of the record, a hearing on the matter, and due consideration, the Court enters the following Order.

I. Factual Background

The facts relied upon in this Order are taken from the Complaint. As required on a motion to dismiss, the Court has accepted all facts pleaded therein as true and has viewed all inferences in a light most favorable to Plaintiff. The facts recited in the following paragraphs are those directly from the Complaint.

Plaintiff Kelvin J. Cochran worked as the Fire Chief of the Atlanta Fire and Rescue Department (“AFRD”) beginning in 2008. Compl., Dkt. No. [1] ¶ 51. In 2009, Plaintiff left the AFRD to serve as Administrator of the United States Fire Administration in Washington, D.C., but he returned ten months later. Id. ¶¶ 52, 570. Plaintiff remained the Fire Chief of AFRD until January 6, 2015. Id. ¶ 59.

Plaintiff is also a devout evangelical Christian and is a member and Deacon at Elizabeth Baptist Church in Atlanta, Georgia. Id. ¶¶ 23, 67–68. In late 2013, Plaintiff wrote and self-published a book entitled Who Told You That You Were Naked?: Overcoming the Stronghold of Condemnation . Id. ¶¶ 91–92. The 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. ¶ 83–85. The book was written primarily for men and is intended to help them fulfill God's purpose for their lives. Id. ¶ 93. According to the Plaintiff, the primary goal of the book is to guide men on how to overcome the stronghold of condemnation, to walk in the fullness of salvation, and to live a faith-filled, virtuous life. Id. ¶ 94. The book includes passages indicating 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. ¶¶ 95–96, 100. The Complaint alleges this teaching is consistent with the Bible and historic Christian teaching. Id. ¶ 99.

When Plaintiff set out to write the book, he contacted Nina Hickson, the City of Atlanta Ethics Officer and asked whether a currently serving city official could write a non-work-related, faith-based book. Id. ¶¶ 105–06. Ms. Hickson responded that he could write the book, so long as the subject matter of the book was not the city government or fire department. Id. ¶ 108. When Plaintiff was close to completing the book, he asked Ms. Hickson whether he could state he was Atlanta's Fire Chief in the “About the Author” section, and she responded in the affirmative. Id. ¶¶ 110–11. Therefore, Plaintiff included a phrase in that section stating he “is currently serving as Fire Chief of the City of Atlanta Fire Rescue Department (GA).” Id. ¶ 112.

In January 2014, after the book was published, Plaintiff provided copies of the book to City of Atlanta Mayor Kasim Reed and three Atlanta City Council members. Id. ¶¶ 117–23. He also gave copies of the book to 10 AFRD employees he contends were Christians, knew he was writing the book, and had requested to receive copies of it upon completion. Id. ¶ 127. He subsequently gave away copies to a few AFRD employees as a free gift, to 3–5 employees who requested a copy, and to 3 employees who had previously shared their Christian faith with him. Id. ¶¶ 126, 128–30. The last time Plaintiff gave a free copy of the book to an AFRD employee was in October 2014. Id. ¶ 133. Plaintiff did not convey to any AFRD employees who received his book that reading or following the teachings of his book was in any way relevant to their status or advancement within AFRD. Id. ¶ 135.

In November 2014, an AFRD member apparently showed the passages of the book concerning its views on sexual morality to City Councilmember Alex Wan and told Councilmember Wan that the passages were contrary to his beliefs on the subject. Id. ¶¶ 138–39, 141. This complaint to Councilmember Wan precipitated discussion of the matter among the City's upper management. Id. ¶¶ 142–44. The consensus of that discussion was that a meeting with Mayor Reed was necessary and that a recommendation would be made for Plaintiff's termination. Id. ¶ 144. On November 24, 2014, Plaintiff received a letter from the City advising him that he was suspended for 30 days without pay. Id. ¶¶ 145, 148. The letter stated that Plaintiff's suspension was due to his “performance of an action that constitutes a ‘cause of action’ as outlined in Section 114–528 of the Code of Ordinances City of Atlanta.” Id. ¶ 150. Section 114–528(b) provides 21 ways in which a City employee can commit a “cause of action,” but the City's letter did not provide any details regarding the grounds for Plaintiff's suspension. Id. ¶¶ 149, 151–53.

Plaintiff contends that he was suspended because of the religious views expressed in his book. Id. ¶ 146. In a statement issued November 24, 2014, concerning Plaintiff's suspension, Mayor Reed stated that he “was surprised and disappointed to learn of this book on Friday.” Id. ¶ 154. Specifically, Mayor Reed stated “I profoundly disagree with and am deeply disturbed by the sentiments expressed in the paperback regarding the LGBT community,” and “I want to be be clear that the material in Chief Cochran's book is not representative of my personal beliefs, and is inconsistent with the Administration's work to make Atlanta a more welcoming city for all of her citizens—regardless of their sexual orientation, gender, race and religious beliefs.”

Id. ¶¶ 157–58. Mayor Reed's Facebook page stated that “the contents of the book do not reflect the views of Mayor Reed or the Administration.” Id. ¶ 159. City Councilmember Wan made a statement to the Atlanta Journal Constitution that “I respect each individual's right to have their own thoughts, beliefs and opinions, but when you're a city employee, and those thoughts, beliefs and opinions are different from the city's, you have to check them at the door.” Id. ¶ 167.

On January 6, 2015, the day Plaintiff's unpaid suspension ended, the City fired Plaintiff. Id. ¶ 169. Plaintiff has never been accused of discriminating against anyone based on race, gender, sexual orientation, or any other protected characteristic. Id. ¶ 168. Plaintiff contends that he complied with all Atlanta Ordinances and policies, including Section 2–820(d), which provides that City department heads, inter alia,

shall not engage in any private employment or render any services for private interests for remuneration, regardless of whether such employment or service is compatible with or adverse to the proper discharge of the official duties of such employee. However, [department heads] may engage in private employment or render services for private interests only upon obtaining prior written approval from the board of ethics.

Id. ¶¶ 170–71. Plaintiff alleges Section 2–820(d) does not apply to an employee's self-publication of a non-work-related, religious book. Id. ¶ 172.

Plaintiff asserts nine claims under 42 U.S.C. § 1983 against the City of Atlanta and Mayor Reed for violation of his constitutional rights. Specifically, Plaintiff's claims are for violation of the First Amendment right to freedom of speech: retaliation (Count I); violation of the First Amendment right to freedom of speech: viewpoint discrimination, overbreadth, prior restraint and unbridled discretion, and unconstitutional conditions (Count II); violation of the First Amendment right to the free exercise of religion and the No Religious Tests clause of Article VI, ¶ 3 of the Constitution (Count III); violation of the First Amendment right to freedom of association (Count IV); violation of the First Amendment right to avoid religious hostility: establishment (Count V); violation of the Fourteenth Amendment right to equal protection of the laws (Count VI); violation of the Fourteenth Amendment right to due process: vagueness (Count VII); violation of the Fourteenth Amendment right to due process: liberty interest (Count VIII); violation of the Fourteenth Amendment right to due process: procedure (Count IX). Defendants move to dismiss Plaintiff's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). Defs.' Mot. to Dismiss, Dkt. No. [11] at 1.

II. Legal Standards

Defendants generally invoke Federal Rule of Civil Procedure 12(b)(6) as the basis for their motion to dismiss. However, one of Defendants' grounds for dismissal is lack of standing pursuant to Article III, which is a challenge to subject matter jurisdiction under Rule 12(b)(1). Stalley ex rel. U.S. v. Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir.2008) (quoting Cone Corp. v. Fla. Dep't of Transp., 921 F.2d 1190, 1203 n. 42 (11th Cir.1991) ).

A complaint may be dismissed under a Rule 12(b)(6) motion to dismiss if the facts as pled do not state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.”); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561–62, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (...