Beckwith v. City of Daytona Beach Shores

United States Court of Appeals,

Eleventh Circuit.

No. 94-2621.

Bruce BECKWITH, Plaintiff-Appellant,

v.

CITY OF DAYTONA BEACH SHORES, FLORIDA, a municipal corporation;
Donald F. Large, individually and in his capacity as Mayor of the
City of Daytona Beach Shores, Florida; Charles McCool,
individually and in his capacity as City Manager of the City of
Daytona Beach Shores, Florida, Defendants-Appellees.

July 25, 1995.

Appeal from the United States District Court for the Middle
District of Florida. (No. 91-953-CIV-ORL-18), G. Kendall Sharp,
Judge.

Before DUBINA and BLACK, Circuit Judges, and COHILL*, Senior
District Judge.

BLACK, Circuit Judge:

Appellant alleges that Appellees: (1) violated his free

speech rights guaranteed by the First Amendment by disciplining and

terminating him in retaliation for his public and private

opposition to city policy; (2) violated his marriage, liberty, and

free association rights guaranteed by the First and Fourteenth

Amendments by disciplining him for not living with his wife and

family; (3) violated his substantive due process rights guaranteed

by the Fifth and Fourteenth Amendments by disciplining and

terminating him in an arbitrary and capricious manner and for

improper reasons; and (4) violated his procedural due process

rights guaranteed by the Fifth and Fourteenth Amendments by

*
Honorable Maurice B. Cohill, Jr., Senior U.S. District
Judge for the Western District of Pennsylvania, sitting by
designation.
disciplining and terminating him without providing necessary

procedural safeguards.1 Because the court believes that only

Appellant's First Amendment free speech claim has merit, we do not

discuss any other claims in this opinion.

On appeal we must decide whether Appellant states a valid

claim under the First Amendment and, if so, whether the district

court properly entered judgment as a matter of law against

Appellant. We conclude that Appellant has a valid claim, and

reverse and remand the district court's entry of judgment as a

matter of law.2

I. BACKGROUND

A. Facts

This case grows out of Appellant Bruce Beckwith's termination

as fire chief of Appellee City of Daytona Beach Shores, Florida

(City). Appellant served as fire chief from 1984 until his

termination in 1991. As a department head, Appellant reported

directly to the city manager and could be terminated only for "just

cause." Appellant consistently received above-average performance

evaluations from the city manager. The city manager answers to a

city council, which consists of five members including the Mayor,

Appellee Donald Large.

1
Appellant's complaint also contained pendent state claims
for intentional infliction of emotional distress and defamation.
He does not appeal the district court's dismissal of those
claims.
2
Our decision to remand makes it unnecessary to decide
whether the district court erred by denying Appellant's request
to recall ex-city manager Holmquist. After carefully considering
the other arguments raised on appeal, we conclude that they are
without merit and do not discuss them. See 11th Cir. R. 36-1.
 The dispute which Appellant claims led to his termination

began on August 1, 1990, when Appellant publicly opposed

budget-cutting proposals advanced by Mayor Large at a city council

meeting. Like most council meetings, the August 1 meeting was

poorly attended. Appellant expressed particular concern about a

proposal to discontinue the City's paramedic program. He

considered the paramedic proposal dangerous to the City's citizens,

visitors, and his own employees. After the meeting, Appellant

began mobilizing public opinion by discussing the proposed

paramedic cut with citizens, most notably the ex-mayor. Appellant

urged the people with whom he spoke to attend the next city council

meeting in order to oppose or support the proposed cuts.

The next city council meeting on August 8, 1990, was well

attended. When the paramedic proposal was raised, Mayor Large

retreated from his earlier position, stating that "[t]here's no

rescue being eliminated." When a citizen in the audience asked

when would the public be able to have an input on the proposal,

Mayor Large postponed further discussion until a budget workshop

scheduled for the next evening. At the August 9 budget workshop,

Mayor Large quickly dropped the proposal to eliminate the paramedic

program. In a letter mailed to city residents a few weeks later,

Mayor Large3 trumpeted the council's decision to "increase our
paramedic staff to meet the most important service needed by our

citizens—EMERGENCY MEDICAL SERVICE." (emphasis in original).

3
At trial Mayor Large claimed that, despite his signature,
the letter was the city manager Holmquist's idea. Appellant
stipulated that Holmquist, if recalled, would directly contradict
Mayor Large's testimony.
 Appellant also claims that his opposition to the City's public

safety officer (PSO) program motivated his termination. The PSO

program encourages police officers, firefighters, and paramedics to

cross-train and serve in other roles. The city government knew

about Appellant's opposition to the PSO program, and Appellant

publicly expressed doubts about it on at least one occasion. On

August 29, 1990, the city council voted to fund the PSO program

despite the city manager's protest that the pilot program was a

failure. Another goal of the PSO program was achieved on October

23, 1991—the same day the city council upheld Appellant's

termination—when the offices of fire chief and police chief were

combined into the office of public safety.

Considerable friction had developed between Appellant and a

majority of the city council 4 by the time the council held their

final budget meeting on August 29. Early in the meeting, Mayor

Large reprimanded Appellant for purportedly sarcastic remarks.

Another councilman suggested that "perhaps [the council] better

hear from brother Beckwith, because he's talked to everybody else
5
about [the budget]!" Near the end of the meeting, Appellant

confronted the council with rumors that "several of you have asked

that I be terminated from employment with the city because of

insubordination" and expressed his continued opposition to budget

cuts being made in his department. Mayor Large responded that:

4
Almost every action by the city council relevant to this
case was approved by a four-to-one vote. Generally, the majority
was Mayor Large and Councilmen Dannecker, Heller, and Marks;
Councilman Schulze was in dissent.
5
Appellant characterizes this remark as a sarcastic
reference to his public opposition to the paramedic proposal.
 One of the things that is done in business is respecting the
chain of command. And the first thing that you learn outside
in the true world is that you report directly to the boss over
you. And none of the employees have a policy making decision.
They don't feel, or they don't get involved with policy....
So for an employee to go out, and go past the city manager,
over the councilm[e]n's heads, to a citizen, to try to
influence that person, is to me total[ly] insubordinate. If
that were to happen to me, on my job, I would be fired.

After the paramedic budget dispute, Mayor Large commenced an

investigation of Appellant. The "Beckwith Investigation" focused

on whether Appellant's actions after the August 1 council meeting

were improper. City Manager Holmquist presented the

investigation's results to the city council on September 10, 1990,

and concluded that "nothing ... supports any form of

insubordination by the fire chief." The council voted to accept

the report, but Mayor Large and another councilman appeared

reluctant to accept Holmquist's conclusion.

Presenting the Beckwith Investigation to the city council was

one of Holmquist's last acts as city manager. He tendered his

resignation to the council at the same meeting. His resignation

letter, dated September 4, 1990, states:

Individual Councilmen have requested that I take actions
against two Department Heads. After gaining legal advice and
studying internal investigations, I believe such actions are
unwarranted, politically motivated, and would pose potential
liability to the city.

At trial, Holmquist testified that Appellant was one of the

department heads referred to in the letter. 6 He admitted having

had some problems with Appellant. He denied, however, that he

wanted to fire Appellant and stated that he considered Appellant to

6
Holmquist testified that the other department head was
chief building official Dwayne Manuel. The city council
eliminated Manuel's job on August 29, 1990.
be a competent and strong leader. According to Holmquist, Mayor

Large demanded Appellant's termination because of Appellant's

opposition to the paramedic proposal and PSO program. 7 Holmquist

testified that retaining his job was contingent on his firing

Appellant, and that he resigned rather than carry out the

termination. Mayor Large's testimony directly contradicts

Holmquist's. According to Mayor Large, Holmquist wanted to fire

Appellant in August 1990, and Mayor Large merely suggested that

Holmquist could fire Appellant if he wished. Mayor Large denied

making Holmquist's job contingent on firing Appellant.

The city council eventually hired Appellee Charles McCool to

replace Holmquist as city manager. The council must select the

city manager in public. Nevertheless, several councilmen expressed

a desire "to avoid the sunshine" during the selection process. The

council seemed to prefer interviewing the final city manager

candidates individually, in private. McCool admitted meeting

informally with several councilmen prior to his selection, but

denied discussing Appellant or the PSO program at these meetings.

Prior to his selection, McCool also attended a city council meeting

about the PSO program. After the meeting, he met briefly with

Mayor Large and the council and, according to McCool, superficially

discussed the PSO program. At trial, McCool categorically denied

being asked to terminate Appellant.

McCool began as city manager in early December 1990. His

7
Holmquist's testimony does not indicate that Mayor Large
clearly explained his reason for wanting to terminate Appellant,
but Holmquist appears to have understood that the paramedic
proposal and PSO program were the reason.
first trouble with Appellant occurred about one month later.

According to McCool, in December 1990, Appellant moved to his new

wife's residence outside the area specified in Appellant's job

description. On January 11, 1991, McCool placed Appellant on

sixty-day probation for allegedly violating the residency

requirement. McCool testified that, when confronted, Appellant

admitted living outside the residency area. But Appellant

testified that he was not living outside the residency area, and

that he so informed McCool. Appellant maintained that he continued

living within the residency area in order to care for his elderly

mother.

In March 1991, McCool extended Appellant's probation and

suspended him without pay for thirty days for a "willful and

voluntary violation of your job description." McCool explained

that Appellant's arrangement to stay at his mother's residence and

his wife's attempts to sell her residence and relocate did not

satisfy the residency requirement and warranted disciplinary

action. According to Appellant, McCool told him that the residency

requirement would not be satisfied until his family sold their home

and moved into the area. Appellant made no effort to appeal these

disciplinary decisions.

The final events leading to Appellant's termination began on

May 13, 1991, when McCool sent Appellant a memo asking whether the

City could use firefighter Charles Frost as a paramedic. The memo

suggested that because of Frost's emergency medical technician

training, "his skills should be utilized by the City, at the very

least on a "fill-in' or "replacement' basis and, as appropriate, be
utilized on a full time basis."

McCool met with Appellant on May 24, 1991, to discuss Frost's

opportunities. According to McCool, after listening to Appellant

for over an hour,8 he interrupted Appellant and directly asked

whether city policy might prevent using Frost as an additional

paramedic. McCool testified that Appellant told him in response

that no policy existed. He admitted that Appellant "probably" told

him that city policy allowed six paramedics, but insisted that

Appellant said nothing indicating that the number was limited to

six. McCool claimed that he learned about a policy limiting the

number of paramedics to six in July 1991 and lost confidence in

Appellant due to his failure to inform McCool of that policy.

Appellant disputes McCool's version of the May 1991 meeting. He

testified that McCool never asked him whether a city policy

regarding the number of paramedics existed and, therefore, denied

that he misinformed McCool.

The parties dispute the existence of a policy limiting the

City to six full-time paramedics. The city council discussed a

six-paramedic staffing level in January 1987, and McCool testified

that he relied on that policy when terminating Appellant.

Transcripts of that council meeting, however, do not indicate that

six was an absolute limit, and the discussion of paramedic staffing

never culminated in a vote.9 Moreover, although the budget

8
McCool's trial testimony contradicts a memo by McCool dated
August 6, 1991, stating that the meeting lasted about twenty
minutes.
9
The parties also dispute whether the absence of a formal
vote is significant.
developed in August 1990 funded six full-time paramedics, it is not

at all clear whether that decision represented official policy or

whether that decision set any limit. In fact, McCool testified

that the 1990-91 budget simply fulfilled the policy that he claims

was established in 1987.

Appellant maintains that recommending Frost as a seventh

paramedic violated no policy because the City routinely used

part-time paramedics, and the City government, at least as of

August 1, 1990, was aware of that practice. Nevertheless, at

Appellant's termination hearing, Mayor Large insisted that the

six-paramedic policy was an absolute limit. At trial, however,

McCool conceded that no policy limited the number of part-time

paramedics. In fact, McCool approved Frost's use as a part-time

paramedic on the day Appellant's termination became final, and the

day after Appellant's termination, the City was paying Frost as a

seventh, part-time paramedic.

McCool informed Appellant that he was contemplating

termination in a memo dated August 26, 1991. McCool testified that

he fired Appellant for failure to inform him about city policy.

The termination became effective on September 30, 1991. Following

termination, Appellant exercised his right to appeal to the city

council. They upheld the termination on October 23, 1991.

B. Procedural History

Appellant brought this 42 U.S.C. § 1983 suit in the Middle

District of Florida, advancing six federal and state bases for
liability.10 Following discovery, Appellees moved for summary

judgment on all claims. They argued that, even assuming

Appellant's speech was protected by the First Amendment, Appellant

had failed to produce evidence that this activity substantially

motivated the decision to terminate him. Mayor Large and McCool

also claimed that they were entitled to qualified immunity. The

district court denied Appellees' motions for summary judgment on

the federal claims, and this Court affirmed the district court's

denial of qualified immunity. Large v. Beckwith, 11 F.3d 167 (11th

Cir.1993).

The case went to trial before a jury in April 1994. Opening

statements and the presentation of Appellant's case took seven

days. The jury heard testimony from Beckwith, his wife, a city

firefighter, ex-city manager Holmquist, Mayor Large, and McCool.

The jury also heard tapes of the city council meetings discussing

the paramedic budget, the PSO program, Holmquist's resignation and

replacement, and Appellant's termination. Other evidence before

the jury included records of the Beckwith Investigation,

Holmquist's letter of resignation, McCool's memo requesting

information about Frost, and correspondence between Appellant and

McCool related to disciplinary actions and Appellant's ultimate

termination.

At the close of Appellant's case, the district court granted

Appellees' motion for judgment as a matter of law. In a

subsequently filed order, the district court found that the

10
Appellant amended his complaint twice. We take the
allegations from the second amended complaint.
evidence failed to show that First Amendment protected activity was

a substantial factor in the decision to terminate Appellant.

Noting that Appellant's opposition to the proposed paramedic cuts

occurred at least one year before his termination, and the fact

that McCool was not employed by the City when the paramedic dispute

arose, the district court found that "problems that arose with

Beckwith while McCool was city manager are separate and distinct

from the discussions concerning elimination of the paramedic

program ... and the implementation of the [PSO] Program." The

court found that Appellant "misinformed McCool about the maximum

number of full-time paramedics allowed." Thus, the district court

concluded that "McCool terminated Beckwith because McCool lost

complete confidence in Beckwith [and] the decision to terminate

Beckwith had nothing to do with Beckwith's opposition to the

elimination of the paramedic program or the implementation of the

[PSO] Program." This appeal follows.

II. STANDARD OF REVIEW

Marking the line between speech protected by the First

Amendment and speech which the state may legitimately regulate

presents a question of law. See New York Times v. Sullivan, 376

U.S. 254, 283-87, 84 S.Ct. 710, 728-29, 11 L.Ed.2d 686 (1964).

Courts "must "make an independent examination of the whole record'

" to ensure that no "forbidden intrusion on the field of free

expression" has occurred. Id. at 285, 84 S.Ct. at 729 (quoting

Edwards v. South Carolina, 372 U.S. 229, 234-36, 83 S.Ct. 680, 683,

9 L.Ed.2d 697 (1963)). Thus, where an employee claims that

government employment decisions were made in retaliation for the
exercise of First Amendment rights, we conduct a de novo review on

the question of whether the First Amendment protects the employee's

conduct. Connick v. Myers, 461 U.S. 138, 148 n. 7, 150 n. 10, 103

S.Ct. 1684, 1690 n. 7, 1692 n. 10, 75 L.Ed.2d 708 (1983); Goffer

v. Marbury, 956 F.2d 1045, 1049 (11th Cir.1992).

Although we review First Amendment questions de novo, issues

of causation in a retaliatory discharge claim present questions of

fact. In cases tried before a jury, the jury should decide

questions of motive and intent behind a government employment

decision. Bryson v. City of Waycross, 888 F.2d 1562, 1566 n. 2

(11th Cir.1989); Sykes v. McDowell, 786 F.2d 1098, 1104-05 (11th

Cir.1986). See also Pullman-Standard v. Swint, 456 U.S. 273, 288-

91, 102 S.Ct. 1781, 1790-91, 72 L.Ed.2d 66 (1982) (holding that the

issue of discriminatory intent in a race discrimination case is a

factual question for the trier of fact).

Where a district court resolves factual issues by entering

judgment as a matter of law, we review that decision de novo,

applying the same standards which bound the district court. Daniel

v. City of Tampa, 38 F.3d 546, 549 (11th Cir.1994), cert. denied,

1995 US LEXIS 3956, --- U.S. ----, --- S.Ct. ----, --- L.Ed.2d ----

(1995). A district court may enter judgment as a matter of law if

"a party has been fully heard on an issue and there is no legally

sufficient evidentiary basis for a reasonable jury to find for that

party on that issue." Fed.R.Civ.P. 50(a)(1). See Vulcan Painters,

Inc. v. MCI Constructors, Inc., 41 F.3d 1457, 1461 (11th Cir.1995).

When considering a motion for judgment as a matter of law, the

court must evaluate all the evidence, together with any logical
inferences, in the light most favorable to the non-moving party.

Walker v. Nationsbank of Florida, N.A., 53 F.3d 1548, 1555 (11th

Cir.1995).

III. DISCUSSION

The threshold legal question of whether the First Amendment

protects an employee's speech is central to, and often dispositive

of, most retaliatory discharge cases. See, e.g., Connick, 461 U.S.

at 154-56, 103 S.Ct. at 1694 (holding that employee's termination

did not violate the First Amendment); Morgan v. Ford, 6 F.3d 750,

755 (11th Cir.1993) (same), cert. denied, --- U.S. ----, 114 S.Ct.

2708, 129 L.Ed.2d 836 (1994); Bryson, 888 F.2d at 1567 (same);

Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1323 (11th

Cir.1989) (same). This case is unusual because the threshold

question of First Amendment protection is not disputed. Instead,

Appellees argue: (1) that Appellant lacks a First Amendment claim

after this Court's decision in McKinney v. Pate, 20 F.3d 1550 (11th

Cir.1994) (en banc), cert. denied, --- U.S. ----, 115 S.Ct. 898,

130 L.Ed.2d 783 (1995); and (2) that no reasonable jury could find

that First Amendment speech was a substantial factor in Appellees'

decision to terminate Appellant.

A. First Amendment Retaliatory Discharge Claims after McKinney v.
Pate

Appellees argue that McKinney v. Pate, 20 F.3d 1550, a

decision that "altered the legal landscape" of this Circuit, Tindal

v. Montgomery County Comm'n, 32 F.3d 1535, 1539 (11th Cir.1994),
precludes Appellant's First Amendment retaliatory discharge claim.11

11
This contention was not clearly raised until oral
argument. Generally, issues not clearly raised in the briefs are
We disagree.12
McKinney involved a county building official's § 1983 suit

against his immediate superior and members of the board of county

commissioners. McKinney, 20 F.3d at 1554. The plaintiff,

McKinney, was allegedly terminated for a variety of legitimate

reasons, generally depicting McKinney as a deficient worker. Id.

McKinney's federal claim "alleged that the various charges against

[him] were pretextual and that [the defendants] therefore fired

McKinney without reason." Id. at 1555. According to McKinney,

this "violated his "constitutional employment rights' and

consequently denied him substantive due process." Id.

The question presented to the en banc McKinney court was

"whether, under the Fourteenth Amendment, a government employee

possessing a state-created property interest in his employment

states a substantive due process claim, rather than a procedural

considered abandoned. See Allstate Ins. Co. v. Swann, 27 F.3d
1539, 1542 (11th Cir.1994). Nevertheless, we reach the issue
because Appellees' McKinney argument raises an important question
of law and the interest of substantial justice is at stake. See
Narey v. Dean, 32 F.3d 1521, 1526-27 (11th Cir.1994).
12
Tindal, while recognizing the importance of McKinney,
suggests that First Amendment retaliatory discharge claims
survived McKinney. In Tindal a sheriff's office employee claimed
that the defendants: (1) violated her substantive due process
rights guaranteed by the Fourteenth Amendment by terminating her
in an arbitrary and capricious manner; and (2) violated her free
speech rights guaranteed by the First Amendment by terminating
her in retaliation for participation in a suit charging the
former sheriff with sex and race discrimination. Tindal, 32 F.3d
at 1537. This Court held that McKinney foreclosed the
plaintiff's substantive due process claim, but partially affirmed
the denial of qualified immunity on the plaintiff's First
Amendment claim. Id. Tindal did not address whether McKinney
barred First Amendment claims, and nothing indicates that the
issue was raised. The result in Tindal, however, suggests that
McKinney did not affect First Amendment retaliatory discharge
claims.
due process claim, when he alleges that he was deprived of that

employment interest by an arbitrary and capricious non-legislative

government action." Id. at 1553. Analyzing the relevant Supreme

Court precedent, the Court concluded that "[b]ecause employment

rights are state-created rights and are not "fundamental' rights

created by the Constitution, they do not enjoy substantive due

process protection." Id. at 1560. The Court held "that, in

non-legislative cases, only procedural due process claims are

available to pretextually terminated employees. Thus, we conclude

that our prior decisions, which granted pretextually terminated

employees section 1983 causes of action premised on substantive due

process violations, are contrary to Supreme Court

jurisprudence...." Id. The Court was quick to add, however, that

"there continue to be rights that a state may not remove,

regardless of the process, as well as actions that can not be

countenanced, regardless of the appropriateness of the process."

Id. at 1560 n. 15.

Appellees' argument that this case is factually

indistinguishable from McKinney ignores a crucial distinction

between that case and the one before us: McKinney did not, and

probably could not, allege that his termination was in retaliation

for First Amendment protected activities. See id. at 1555. Thus,

the McKinney opinion says nothing about First Amendment retaliatory

discharge claims. Although "it is not unusual for a court to

change the law without emphasizing its departures from or

reinterpretation of precedent," United States v. Hollingsworth, 27

F.3d 1196, 1198 (7th Cir.1994) (en banc), it is difficult to
believe that McKinney narrowed state employees' rights to be free

from retaliatory discharge without discussing the First Amendment

or the Supreme Court's retaliatory discharge cases.13

More fundamentally, Appellees misunderstand the reasoning

behind McKinney. McKinney recognized that almost all § 1983 claims

rely on the substantive component of the Due Process Clause because

it is through that vehicle that fundamental rights are incorporated

against the states. McKinney, 20 F.3d at 1556. These fundamental

rights include most of the rights protected by the Bill of Rights,

and certain well-recognized, unenumerated rights. Id. McKinney

did not disturb a litigant's ability to vindicate fundamental

rights though the substantive component of the Due Process Clause.

Id. at 1556 n. 8. McKinney 's limitation on a state employee's

federally protected rights only affected areas "largely outside the

scope of substantive due process jurisprudence [like] tort law and

public employment law." Id. at 1556 (citations omitted). "In

short, areas in which substantive rights are created only by state

law (as is the case with tort law and employment law) are not

subject to substantive due process protection under the Due Process

Clause because "substantive due process rights are created only by

the Constitution.' " Id. (quoting Regents of Univ. of Mich. v.

Ewing, 474 U.S. 214, 229, 106 S.Ct. 507, 515, 88 L.Ed.2d 523 (1985)

(Powell, J., concurring)). Hence, because McKinney's suit was

13
The only Supreme Court precedent cited in McKinney which
discusses a First Amendment retaliatory discharge claim is Perry
v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570
(1972). The context of the Perry citation indicates that the
reference is to the procedural due process, not First Amendment,
portion of that opinion. McKinney, 20 F.3d at 1561 (citing
Perry, 408 U.S. at 597-98, 92 S.Ct. at 2698).
based upon his purported "constitutional employment rights," id. at

1555, which "are state-created rights and are not "fundamental'

rights created by the Constitution," they did not enjoy substantive

due process protection, id. at 1560. See also Bussinger v. City of

New Smyrna Beach, 50 F.3d 922, 925 (11th Cir.1995) (holding that

McKinney barred claim that plaintiff's termination deprived him of

a protected interest in his job).

Unlike McKinney, Appellant seeks to vindicate a right arising
14
from the First Amendment of the Constitution, not one which is

created by the state. A state employee does not need a protectable

property interest, or any other state-created right, in order to

maintain a First Amendment retaliatory discharge claim. In Rankin

v. McPherson, the Supreme Court explained that "[e]ven though [the

plaintiff] was merely a probationary employee, and even if she

could have been discharged for any reason or for no reason at all,

she may nonetheless be entitled to reinstatement if she was

discharged for exercising her constitutional right to freedom of

expression." 483 U.S. 378, 383-84, 107 S.Ct. 2891, 2896, 97

L.Ed.2d 315 (1987). In Mt. Healthy City School Dist. Bd. of Educ.

v. Doyle, the Court held that "[e]ven though [plaintiff] could have

been discharged for no reason whatever, and had no constitutional

right to a hearing prior to the decision not to rehire him, he may

nonetheless establish a claim to reinstatement if the decision not

to rehire him was made by reason of his exercise of

14
The First Amendment, incorporated against the states
through the Fourteenth Amendment, New York Times, 376 U.S. at
276-78, 84 S.Ct. at 724, requires that the government "make no
law ... abridging the freedom of speech," U.S. Const. amend. I.
constitutionally protected First Amendment freedoms." 429 U.S.

274, 284, 97 S.Ct. 568, 574, 50 L.Ed.2d 471 (1977) (citations

omitted). In Perry v. Sindermann, the Court held that the

plaintiff's lack of "a contractual or tenure right to

re-employment" did not defeat his First Amendment claim. 408 U.S.

at 597, 92 S.Ct. at 2697.

[E]ven though a person has no "right" to a valuable
governmental benefit and even though the government may deny
him the benefit for any number of reasons, there are some
reasons upon which the government may not rely. It may not
deny a benefit to a person on a basis that infringes his
constitutionally protected interests—especially, his interest
in freedom of speech.

Id. (emphasis added). Thus, although a retaliatory discharge claim

by a state employee involves the denial of the state-created

benefit of employment, the right upon which a retaliatory

government employment decision infringes is the right to free

speech, not the right to a job. McKinney has no impact on such

claims.

Finally, First Amendment retaliatory discharge claims do not

raise the same policy concerns which animated McKinney. Discussing

the protection of unenumerated rights, McKinney explains that "the

Court has always been reluctant to expand the concept of

substantive due process because guideposts for responsible

decisionmaking in this uncharted area are scarce and open-ended."

McKinney, 20 F.2d at 1556 (quoting Collins v. City of Harker

Heights, 503 U.S. 115, 125, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261

(1992)). In contrast, the First Amendment's text and two centuries

of free speech tradition and jurisprudence provide ample guideposts

for courts examining retaliatory discharge claims. The existence
of manageable First Amendment standards also explains why

retaliatory discharge claims do not raise the same "Monday morning

quarterbacking" problems associated with open-ended substantive due

process suits. See McKinney, 20 F.3d at 1564. Unlike a vague

standard examining whether the termination was "for an improper

motive ... pretextual, arbitrary and capricious, and ... without

any rational basis," Adams v. Sewell, 946 F.2d 757, 766 (11th

Cir.1991) (quoting Hearn v. City of Gainesville, 688 F.2d 1328,

1332 (11th Cir.1982)), the First Amendment retaliatory discharge

standard minimizes the danger that state employees will use § 1983

suits as a "sword" to force their employers to retain unsuitable

employees. See McKinney, 20 F.3d at 1564.

We hold that state employees retain a federal cause of action

under the First Amendment15 when they allege that government

employment decisions were taken in an attempt to chill expression

protected by the First Amendment. Appellant's suit states a valid

claim for relief.

B. The Retaliatory Discharge Claim

Appellant argues that the district court erred by resolving

factual disputes in favor of Appellees and ignoring evidence

creating a sufficient basis for a reasonable jury to find for

Appellant. Appellees respond that the district court correctly

found that the evidence, when viewed in the light most favorable to

Appellant, is legally insufficient for a reasonable jury to rule in

favor of Appellant.

The First Amendment protects government employees from some,

15
As incorporated by the Fourteenth Amendment.
but not all, restraints on their right of free expression. See,

e.g., United States v. National Treasury Employees Union, --- U.S.

----, ----, 115 S.Ct. 1003, 1012, 130 L.Ed.2d 964 (1995);

Pickering v. Board of Ed., 391 U.S. 563, 566-68, 88 S.Ct. 1731,

1734-35, 20 L.Ed.2d 811 (1968). This Circuit examines First

Amendment retaliatory discharge claims under the four part test

announced in Bryson v. City of Waycross, 888 F.2d 1562 (11th

Cir.1989). Tindal, 32 F.3d at 1539; Morgan, 6 F.3d at 754. The

Bryson test examines (1) whether the employee's speech involves a

matter of public concern, (2) whether the employee's interest in

speaking outweighs the government's legitimate interest in

efficient public service, (3) whether the speech played a

substantial part in the government's challenged employment

decision, and (4) whether the government would have made the same

employment decision in the absence of the protected conduct.

Bryson, 888 F.2d at 1565-66.

The first two elements of the Bryson test are questions of

law designed to determine whether the employee's speech is

protected by the First Amendment. Appellees do not argue that

Appellant's opposition to the paramedic cuts and PSO program are

not protected by the First Amendment, 16 and the record supports a
conclusion that this activity is protected. Appellant's speech

concerns political matters at the core of activity protected by the

First Amendment. See generally, McIntyre v. Ohio Election Comm'n,

--- U.S. ----, ---- - ----, 115 S.Ct. 1511, 1518-19, 131 L.Ed.2d

16
Appellees' failure to brief this issue abandons it for the
purposes of this appeal. See Allstate, 27 F.3d at 1542.
426 (1995) (explaining that speech on public issues "occupies the

core of the protection afforded by the First Amendment"). Few

subjects are of more public concern to the average citizen than the

provision of basic fire and rescue services. It is hard to imagine

any combination of government interests sufficient to outweigh

Appellant's strong interest in informing the public about policies

he believed were dangerous to the City's citizens. See, e.g.,

Connick, 461 U.S. at 150-54, 103 S.Ct. at 1692-93 (cautioning that

"a stronger showing [of government interests] may be necessary if

the employee's speech more substantially involved matters of public

concern"); Pickering, 391 U.S. at 570-72, 88 S.Ct. at 1736

(holding that the public's interest in school funding and teachers'

special knowledge of school spending make it "essential that

[teachers] be able to speak out freely on such questions without

fear of retaliatory dismissal").

The third and fourth elements of the Bryson test are

questions of fact designed to determine whether a retaliatory

motive was the legal cause of the challenged employment decision.

To get before the jury, Appellant had to present enough evidence

for a reasonable jury to conclude that his protected speech was a

"substantial" motivating factor in the decision to terminate him.

Appellees could still avoid liability, however, by convincing the

jury that Appellant would have been terminated in the absence of

First Amendment protected activity. See Mt. Healthy, 429 U.S. at

287, 97 S.Ct. at 576; Tindal, 32 F.3d at 1540; Bryson, 888 F.2d

at 1565. Nevertheless, if Appellant produced enough evidence for

a reasonable jury to conclude that a retaliatory animus
substantially motivated his termination, Appellees could only rebut

this showing by convincing the jury, not the court, that a

legitimate reason justified the decision. See Pullman-Standard,

456 U.S. at 288-91, 102 S.Ct. at 1790-91 (holding that issues of

discriminatory intent and actual motivation are questions of fact

for the trier of fact); Bell v. Birmingham Linen Service, 715 F.2d

1552, 1557 (11th Cir.1983) ("Once an [illegal] motive is proved to

have been a significant or substantial factor in an employment

decision, defendant can rebut only by proving by a preponderance of

the evidence that the same decision would have been reached even

absent the presence of that factor."), cert. denied, 467 U.S. 1204,

104 S.Ct. 2385, 81 L.Ed.2d 344 (1984).

It is neither possible nor desirable to fashion a single

standard for determining when an employee has met her initial

burden of demonstrating that a retaliatory intent was a

"substantial" or "motivating factor" behind a government employment

decision. See Mt. Healthy, 429 U.S. at 287, 97 S.Ct. at 576.

Nevertheless, Waters v. Churchill, --- U.S. ----, 114 S.Ct. 1878,

128 L.Ed.2d 686 (1994), suggests that an employee's burden is not

a heavy one. In Waters, Churchill brought a § 1983 claim against

a state hospital alleging that her termination was in retaliation

for protected speech. Id. at ---- - ----, 114 S.Ct. at 1882-83.

Briefly addressing the intent issue,17 the Court concluded that a
material issue of fact was created by evidence of Churchill's

17
Most of the Waters opinion concerns "whether the Connick
test should be applied to what the government employer thought
was said, or to what the trier of fact ultimately determines to
have been said." Id. at ----, 114 S.Ct. at 1882.
criticism of hospital policy, evidence of management "sensitivity"

about the criticisms, and evidence of conduct that, viewed in the

light most favorable to the plaintiff, showed management hostility

because of the criticisms. Id. at ----, 114 S.Ct. at 1891 (citing

Churchill v. Waters, 977 F.2d 1114, 1125-26 (7th Cir.1992)). The

Court relied on a sudden drop in Churchill's performance

evaluations, criticism of her relationship with a doctor, and a

supervisor's unusual ordering of Churchill out of an operating room

as significant evidence of management hostility. Id. at ----, 114

S.Ct. at 1891 (citing Churchill, 977 F.2d at 1125-26). Thus,

purely circumstantial evidence, taken in the light most favorable

to the plaintiff, can create a jury question on the issue of the

government's motive.

A de novo review of the record reveals that the district court

improperly resolved factual disputes in favor of Appellees. First,

the court found that Appellant "misinformed McCool about the number

of full-time paramedics allowed." Testimony before the jury leaves

doubt as to whether any misinformation occurred. According to

Appellant, McCool never directly asked about policy limits, and

even McCool admitted that Appellant "probably" told him something

about a six-paramedic policy. Second, the district court assumed

the existence of a six-paramedic limit. The evidence does not

justify that assumption. There was no written policy limit.

Instead, the vague discussions from January 1987, which never led

to a vote on the issue of paramedic staffing, were the best

evidence of any limit. Third, the district court found that

Appellant was validly on probation for violating the residency
requirement. Appellant disputed this conclusion, testifying

instead that he had continued living within the residency area. 18
Finally, the district court found that Mayor Large merely suggested

that Holmquist could fire Appellant after they discussed tension

between Holmquist and Appellant. This finding cannot be reconciled

with Holmquist's testimony that Mayor Large asked for Appellant's

termination and made the city manager's job contingent on taking

that action. Because the district court improperly resolved these

disputed issues of fact, we must ignore these factual conclusions

in reviewing the decision to enter judgment as a matter of law.

Review of the record uncovers sufficient evidence for a

reasonable jury to conclude that Appellant's speech was a

substantial factor leading to his termination. Ex-city manager

Holmquist's testimony is direct evidence of discriminatory motive

on the part of Mayor Large. Holmquist's testimony is corroborated

by his letter of resignation stating that the city council asked

him to take "unwarranted [and] politically motivated" action

against two department heads. Such direct evidence of

discriminatory motive, standing alone, is usually sufficient to

create a jury question on the issue of intent. See, e.g., Swint v.

City of Wadley, 51 F.3d 988, 1000 (11th Cir.1995) (holding that a

single witness's testimony about an officer's racist statement

created a genuine issue of material fact on the issue of intent to

discriminate).

18
We affirm the district court's entry of judgment as a
matter of law on Appellant's marriage, liberty, and association
rights claim. Nevertheless, a reasonable jury can still conclude
that McCool used the residency requirement as a pretext in order
to punish Appellant for the exercise of free speech rights.
 Appellant also produced copious circumstantial evidence which,

when viewed in the light most favorable to Appellant, supports a

reasonable conclusion that his termination was retaliatory. The

fact that Mayor Large initiated the Beckwith Investigation

certainly suggests a desire to punish Appellant for protected

speech. Although the city council took no official action

following the investigation, a reasonable jury could infer that the

investigation convinced the council that they had to take any

retaliatory action unofficially in order to avoid liability or

public reaction. Tapes of the August and September city council

meetings also support an inference that Mayor Large and the council

harbored retaliatory animus towards Appellant. After hearing Mayor

Large call Appellant's actions "insubordinate," a councilman make

a sarcastic reference to Appellant's public discussions, and the

council's reluctance to accept the Beckwith Investigation's

conclusion, a reasonable jury could conclude that the city council

was eager to take action against Appellant.

The district court erred by supporting its decision with the

undisputed fact that McCool was not the city manager when

Appellant's speech occurred. The evidence, viewed in a light most

favorable to Appellant, shows that Holmquist resigned rather than

terminate Appellant, depicts a city council uncomfortable with the

public process for selecting a new city manager, and reveals that

McCool had private, off-the-record meetings with the council before

he was hired. A reasonable jury could infer from this evidence

that McCool was a "hired gun" chosen, at least partially, because

he was willing to carry out the council's retaliatory plan. The
circumstantial nature of this evidence is not fatal; by

discounting evidence of McCool's possible motive, the district

court ignored the settled rule that the inherent difficulty of

proving discriminatory intent often requires reliance on

circumstantial evidence. See Allen v. County of Montgomery, 788

F.2d 1485, 1488 (11th Cir.1986). Thus, considered in a light most

favorable to Appellant, evidence that McCool was hired after the

paramedic budget dispute supports an inference of retaliatory

termination.

We reject Appellees' suggestion, echoed by the district court,

that it takes an "improbable leap over one year in time" to

conclude that Appellant's speech substantially motivated his

termination. As an initial matter, this argument fails to view

facts and make logical inferences in favor of Appellant when

considering the timing of Appellant's termination. The most

significant protected speech occurred in August 1990. Holmquist's

refusal to fire Appellant forced his resignation in September.

Holmquist's resignation and the Beckwith Investigation put the

council on notice that Appellant's speech was protected and that

firing him would expose the City to liability. Consequently, the

council had to find a city manager willing to illegally fire

Appellant in a way that would avoid liability. The council's

search ended in December 1990, when they hired McCool. In January

1991, McCool put Appellant on temporary probation. That

probationary status became permanent in March. In May 1991, McCool

solicited Appellant's advice on Frost. After the two previous

disciplinary actions, the Frost meeting gave McCool the pretext he
needed accomplish the council's wishes. By August 1991, McCool had

taken action to terminate Appellant, but the requirements of due

process delayed the completion of that procedure until October

1991. Viewed in this light, the sequence of events culminating in

Appellant's termination suggests a very deliberate strategy on the

part of Appellees. A reasonable jury could infer that Appellees,

on notice that their goal was illegal, used a relatively slow and

deliberate process to terminate Appellant.

Second, although Appellees disclaim any desire to create a per

se rule (Oral Arg.), their timing argument would replace a

fact-bound, common-sense inquiry with an artificial rule of law.

The critical question in this case is whether a retaliatory motive

was a substantial factor in Appellees' decision to terminate

Appellant. Resolving this question requires the careful

consideration of all the evidence and any logical inferences drawn

from that evidence. Undue focus on timing distorts this

well-established sufficiency of the evidence formula and would not

help resolve intent questions like the one before us. Cf. United

States v. Brown, 43 F.3d 618, 625 (11th Cir.1995) (rejecting a

fixed list of entrapment factors in favor of a fact-bound,

common-sense inquiry).

Third, a holding that the circumstances of this case make a

one-year gap sufficient to defeat retaliatory discharge claims as

a matter of law would give state actors a fail-safe recipe for

avoiding the command of the First Amendment. We believe that the

settled summary judgment and judgment as a matter of law standards

provide state employers with sufficient protection from frivolous
retaliatory discharge claims without resort to a

judicially-fashioned, quasi-per se rule based upon the amount of

time between speech and termination.19

Fourth and finally, a holding that the time gap in this case

insulates the government from the retaliatory discharge claim would

be inconsistent with this court's decision in Tindal, 32 F.3d 1535.

In Tindal, a terminated employee alleged that she was fired in

retaliation for giving affidavits and testimony protected by the

First Amendment. Id. at 1537. The plaintiff submitted an

affidavit supporting discrimination claims against her superior in

August 1988, and testified in the same case in February 1989. Id.

Yet the discipline leading to her termination only began in July

1989, and her termination was not final until October 1989. Id. at

1538. Thus, in Tindal there was an eleven-month gap between the

plaintiff's initial protected activity and the initial discipline,

and a fourteen-month gap between the initial activity and the final

termination. Nevertheless, the court held that "a trier of fact

could conclude that the Sheriff had no other cause for firing [the

plaintiff]." Id. at 1539. In the instant case only five months

separate the paramedic budget dispute and McCool's initial

discipline of Appellant. Twelve months separate the paramedic

dispute and the start of termination proceedings, and fourteen

months separate the paramedic dispute and Appellant's final

termination. As in Tindal, these gaps of time, standing alone, do

not preclude Appellant from producing enough evidence for a

19
The courts' duty to independently decide whether the
employee's speech is protected by the First Amendment provides an
additional safeguard against abuse.
reasonable jury to conclude that protected speech was a substantial

factor in the decision to terminate him.

We hold that the district court erred by granting Appellees'

motion for judgment as a matter of law. The district court

improperly resolved factual disputes in favor of Appellees, failed

to view evidence in the light most favorable to Appellant, and

ignored inferences that a reasonable jury could make in concluding

that Appellant's protected speech was a substantial factor in

Appellees' decision to terminate him.

IV. CONCLUSION

This case demonstrates the confusion caused by "shotgun

pleading." Appellant's complaint alleged six causes of action, and

he brought four of them before this Court. The resulting

difficulty in sorting through allegations almost drowns a

meritorious claim in a sea of marginal ones.20 The bar would be

better served by heeding this advice: "In law it is a good policy

never to plead what you need not, lest you oblige yourself to prove

what you cannot." Abraham Lincoln, Letter to Usher F. Linder,

February 20, 1848 in The Quotable Lawyer 241 (D. Shrager & E.

Frost, eds., 1986).

Appellant states a valid claim under the First Amendment. The

district court erred by entering judgment as a matter of law in

favor of Appellees because the record contains sufficient evidence

for a reasonable jury to rule in favor of Appellant.

AFFIRMED in part, REVERSED in part, and REMANDED.

20
For example, Appellant's argument that legislative acts of
the council violated his substantive due process rights borders
on frivolous. See McKinney, 20 F.3d at 1557 n. 9.