Goldstein v. Chestnut Ridge Volunteer Fire Co.

Thе attor- said on witness stand. has from this case heard the order

ney in

court, by telling prospective witness witness, prior testimony

about

attorney directly the court’s order. violated

Ill Judge the reasons Chief given

For

Wilkinson, I find that the district court’s testimony of excluding

order Alexan- an abuse of

der did constitute discre- Parks, Jerry See F.2d at

tion. 342-43. I

Accordingly, would affirm.

I am authorized to indicate Chief joins opinion Wilkinson in this

Judge joins Parts I Judge Traxler and II opinion affirming a violation of the sequestration court’s order.

district GOLDSTEIN, Plaintiff-

Scott

Appellant,

v.

THE CHESTNUT RIDGE VOLUN COMPANY;

TEER FIRE Richard

Yaffee; McCausland; Harry Ross

Kakel; Newberrey, III; William Mi Fox; Reynolds; Eugene

chael Nick

Coroneos, Defendants-Appellees. Goldstein, Plaintiff-Appellee,

Scott

The Chestnut Volunteer Fire

Company; Yaffee; Richard Ross

McCausland; Kakel; Harry William

Newberrey, III; Fox; Eugene Michael

Reynolds; Coroneos, Nick Defen

dants-Appellants. 99-1089,

Nos. 99-1180. of Appeals,

United States Court

Fourth Circuit.

Argued Dec. July

Decided Jr., Byrd,

ARGUED: Grant Charles Al- Baltimore, Byrd, Maryland, ston & for Ap- Schmidt, pellant. Jo Anna Law Office Baltimore, Harold A. MacLaughlin, Mary- land; Powell, Roger Norman Powell and Sorrell, Pikesville, Maryland, for Appel- lees. WILKINSON,

Before Chief Judge, KING, BUTZNER, Judge, Circuit Senior Circuit Judge.

OPINION KING, Judge: Circuit Plaintiff appeals Scott H. Goldstein entry district court’s of summary judg- ment favor Chestnut Ridge Vol- (“Chestnut unteer Company Ridge” Fire or “the company”) and individual mem- Committee, of its bers Executive the de- fendants below. Mr. Goldstein alleges that he suspended and later terminat- ed from Chestnut based on the sub- speech, of his violation of stance First Inasmuch Amendment. as Goldstein premises against his cause action entity upon and these individuals the First Amendment, must we first determine Ridge’s whether Chestnut decisions to sus- him and to terminate pend under color of law for of 42 purposes U.S.C. so, § 1983. If then must ascertain we court properly whether the district con- cluded that Goldstein cannot establish violation of Amendment. the First respect question, first With Ridge, hold that a volunteer fire Chestnut department Maryland, is a state actor. (1) We do so because Chestnut is: functions, cаrrying exercising powers, out protections and benefitting from tradition- state; ally exclusively reserved to the assistance; receiving substantial state suspension his but before after subject regulation; to extensive state termination, filed this action by his Goldstein to be a state actor considered Maryland. The case in the District of totality In the the state itself. and, discovery follow- circumstances, proceeded through Ridge is state briefs, filing with the of motions comport ing actor whose actions must partial Goldstein granted district court Amendment.1 First holding that Chestnut summary judgment, However, second is- considering of 42 purposes actor for Ridge is state sue, cannot es- we conclude Goldstein § 1988.2 See U.S.C. First prima facie violation of the tablish Co., F.Supp. Fire Ridge Volunteer incor- Although speech Amendment. (D.Md.1997). concern, which is porated matters of speech, although and Chestnut protected 13, court, November The district on outweigh pub- interests do not Ridge’s 1997, under the state action issue certified lic in the substance of Goldstein’s interest 1292(b), § but we declined 28 U.S.C. cannot estab- protected speech, Goldstein Ridge’s petition for an interlocu- Chestnut protected speech that his sub- lish then con- tory appeal. The district court Ridge’s deci- stantial factor Chestnut judg- summary sidered cross-motions employment to take adverse actions sions 7, and, January on on the merits ment reason, him. we must against For 1999, suspension and held Goldstein’s affirm the district court’s award of sum- offend the First Amend- dismissal did not to the defendants. mary judgment the court entered Accordingly, ment. summary judgment favor of the defen-

I. dants. suspended Mr. Goldstein was from jurisdiction over possess 15, 1996, by Richard company on March § pursuant to 28 1291. Be- appeal U.S.C. Yaffee, Ridge, President of and fore we address the merits of Gold- 21, 1996, suspension on March claim, Amendment we first stein’s First the Executive Commit- upheld by vote of must ascertain whether Chestnut followed his suspension tee. Goldstein’s law within the mean- acted under color of agreement failure to abide an admitted § 42 ing of U.S.C. 1983. bring complaints to Yaffee before sub- directly to the Executive mitting them II. 1996, 29, August while on Committee. On grant summary judg- suspension, Goldstein was terminated from We review the Finkle, Myers de novo. v. 950 F.2d company, based on his submission ment (4th Cir.1991). 165, Summary judg- 167 allegedly false certifications be- “if May appropriate only pleadings, ment is half of other members. On Const, 21, 1997, August provides: 2. On the district court en- 1. U.S. amend. I summary relating to the tered an initial order Congress respecting shall make no law an motions, granted partial religion, prohibiting judgment which both establishment or thereof; abridging the free exercise or free- summary judgment to Goldstein and certified press; right speech, or the dom of or of the interlocutory appeal 28 the issue for under assemble, people peaceably to and to 1292(b). § U.S.C. then petition the Government for redress order, to alter or amend the initial moved grievances. response to which the district court rescinded "incorporat- First Amendment has been The it certified the case for its order insofar as ed” Fourteenth and into the Amendment 13, interlocutory appeal. On November thereby applicable against made the states. 1997, granted court the motion to the district 359, 368, California, Stromberg v. 283 U.S. 51 (irrelevant only degree reconsider to a limited 532, (1931); S.Ct. Connecticut, 75 L.Ed. 1117 Cantwell v. summary purposes), for these re-entered a 296, 303, 900, 310 U.S. 60 S.Ct. order, opinion. judgment published its (1940). 84 L.Ed. 1213

341 depositions, interrogatories, subjected, any answers to causes to be citizen of the file, together admissions on with the United or person States other within the affidavits, jurisdiction any, if show that there is no thereof to the deprivation of genuine any any rights, privileges, issue as to material fact.” or immunities se- 56(c); laws, Corp. Fed.R.Civ.P. Celotex Ca cured the Constitution and shall trett, 2548, party injured U.S. S.Ct. be liable to the in an ac- (1986). law, determining tion at in equity, L.Ed.2d 265 suit or prop- other party summary whether a is entitled to er proceeding redress.

judgment, evidence is viewed statute, § 42 U.S.C. 1983. This promul light nonmoving par most favorable gated part Rights the Civil Act of ty. F.2d Myers, 950 at 167. 1871,3 injured” provides party “the awith

cause of action for violations of constitu III. rights by is, tional “every person,” private entities, both persons private A. liability but imposed only for depriva exceptions, few constitutional With tions carried out under color of law. Bros., guarantees, including Brooks, those of individual Flagg Inc. v. 436 U.S. liberty equal protection, apply “do not L.Ed.2d 185 private to the actions of entities.” Ed “In cases construing section ‘under Co., Inc., monson v. Leesville Concrete 500 cоlor’ of law consistently has been treated 614, 619, 2077, 111 114 U.S. S.Ct. L.Ed.2d as equivalent require to the ‘state action’ this 660 While limitation on the ment under the Fourteenth Amendment.” reach of the Constitution fundamental to Haavistola v. Community Fire Co. Ris of system, Sun, Inc., (4th 211, our federal it is not without bound ing 6 F.3d 215 Cir. Indeed, 1993) Kohn, aries. were this limitation bound (citing Rendell-Baker v. 457 less, states, 830, 838, government agencies, gov 2764, U.S. 102 S.Ct. 73 L.Ed.2d (1982)). ernment officials could avoid constitutional 418 obligations by simply delegating limits and Supreme recently As the Court reaf- governmental core to private functions ac firmed, principles guide two state action victory tors. This of form over substance determinations: permitted is not guise under the of federal requires [S]tate action both an alleged ism; thus, “governmental authority where deprivation by constitutional “caused ... activity an to such an ex dominate^] right exercise of some privilege or creat- tent participants that its must be deemed ed a rule State or of conduct to act authority govern with the of the imposed by the by person State or a ment[, ostensibly private participants responsible” whom the State is and that subject to are] constitutional constraints.” party charged deprivation “the with the 620, Id. at 111 S.Ct. 2077. person may fairly must be a who said be scheme, to be a state actor.” Mirroring this pragmatic sec- 42 provides, pertinent tion 1983 Title American Mut. Ins. Co. v. Manufacturers part, that Sullivan, 40, 50, 977, 526 119 U.S. S.Ct. who, Every person any under color of (quoting Lugar 143 L.Ed.2d 130 v. statute, ordinance, custom, Co., 922, 937, 102 regulation, or Edmondson Oil 457 U.S. (1982)).4 ..., 2744, usage, any subjects, State or 73 L.Ed.2d ‍‌‌​​‌​‌‌​‌‌​​‌‌‌​​‌‌‌​​‌​‌​‌​‌‌​​‌​​‌‌‌‌​‌​​‌‌‌​‍In S.Ct. 482 Sanchez, 187, Quern 182, Jordan, 332, 354, Ngiraingas (quoting v. 495 U.S. v. 440 U.S. 1139, 1737, (1979) (Bren- 110 99 S.Ct. 59 L.Ed.2d 358 S.Ct. 109 L.Ed.2d 163 nan, J., (" concurring judgment)). originally § ‘Section 1983 was enacted as 1 Rights of the Civil Act The Act was purpose enforcing pro- enacted for the Supreme Lugar 4. As noted Court in v. Co., Inc., 922, 937, Amendment.’") visions of Fourteenth Oil 457 U.S. Edmondson 342 case, by which analysis paradigmatic our of state action turns of the means “[o]ne subject mem- private party

on whether and the a becomes to section “may fair- of its Executive Committee through government’s bers 1983 is confer ... Amer- ly is, core, actor[s].” be said to be state upon party ral of what at sov 50, Manufacturers, 119 ican 526 U.S. ereign power.” Auto v. United Workers S.Ct. 977. Festivals, Inc., 43 F.3d Gaston (4th Cir.1995). words, private other A have been handful of contexts if responsible actor is as a state actor “the can identified which we be confident performed traditionally function [is] ostensibly private that the conduct of an prerogative exclusive Id. State.” law purposes actor is under color of “ omitted). Fourth, (quotation and citation where, ‘in section 1983. The first exists ... “private challenged proce use of state circumstances,’ ... light of all the with the help dures of state officials con adopt passive did more than Government Lugar, stitutes state action.” 457 U.S. at position underlying private toward the 933, 102 Andrews, 2744; S.Ct. see also Railway v. Labor Ex conduct.” Skinner (“A private party at 217 can be Assoc., 602, 614-15, F.2d ecutives 489 U.S. deemed a state ... when the actor state (quot 103 L.Ed.2d 639 S.Ct. an act in has committed unconstitutional ing Coolidge Hamрshire, v. New 403 U.S. enforcing right private 29 L.Ed.2d 564 the course of of a citizen.”). (1971)); see also Andrews Federal Atlanta, Home Loan Bank 998 F.2d bottom, At the state action deter (4th Cir.1993). situation, 214, 217 In that mination an all requires examination of an “private party should be deemed circumstances, relevant in an attempt agent instrumentality or of the Govern degree evaluate “the of the Government’s Skinner, ment.” 489 U.S. at party’s participation private activi 1402; City see also Peterson v. S.Ct. Skinner, 614, ties.” 489 at 109 U.S. S.Ct. Greenville, 244, 248, 373 U.S. 83 S.Ct. (“Whether private party 1402 a should be (1963) 1119, (finding 10 L.Ed.2d 323 state agent deemed an or instrument of the action restaurant patrons where excluded pur Government for Fourth Amendment race, in compliance based on their with poses necessarily degree turns on the ordinance); local v. Adickes S.H. Kress & participation pri Government’s Co., 144, 171, 1598, 398 U.S. 90 S.Ct. 26 activities, party’s vate a question that can (1970) (holding private L.Ed.2d 142 that only light be resolved of all the circum entity acts under of law if private color stances.”) (quotations and citations omit a action was “because of state-enforced ted); Newton, 296, Evans v. 382 299- custom”). U.S. Second, if the delegates state 300, 486, (1966) 86 S.Ct. 15 L.Ed.2d 373 actor, obligations private its to a the acts (“Only by sifting weighing facts and cir pursuit conducted in of those delegated cumstances can we determine whether the are color obligations under of law. See Atkins, 42, 54, reach the Fourteenth Amendment ex West v. 487 U.S. 108 S.Ct. case.”) 2250, (1988) a particular (quoting tends to (holding 101 L.Ed.2d 40 that Bur Wilmington ton v. Parking Authority, 365 physician, pursuant who treatеd inmates 856, contract, part-time fulfilling U.S. 81 S.Ct. 6 L.Ed.2d 45 state’s (1961)); Eighth see also v. obligations Mary Amendment and there Hicks Southern law); fore Systems Agency, acted under color of state see land Health 737 F.2d (4th Andrews, Third, 399, Cir.1984) (“[T]here also 998 F.2d at 217. 402 n. 3 is no 2744, (1982), below, 102 S.Ct. 73 L.Ed.2d 482 to his decisions.” As discussed principles "collapse two into each other when character official of Chestnut and its deprivation the claim of a constitutional precipitates Executive Committee members against directed party whose official charac- merger principles such a of these here. ter weight is such as to lend State

343 ac determining company. formula for state These facts specific notwithstand- tion.”) Gabica, v. (quoting ing, Howerton 708 there are numerous circumstances (9th Cir.1983)). 380, In re F.2d 383 present mandating in this case our conclu- considered, alia, have inter gard, we also Ridge’s personnel sion deci- (1) injury aggravat “whether the caused is sions are made under color of law. unique way by in a ed incidents Edmonson, governmental authority,” 500 622, 111 (citing Shelley U.S. at S.Ct. 2077 a. Kraemer, 1, 836, 68 92 334 U.S. S.Ct. (1948)); L.Ed. 1161 the extent and We first argument consider the raised public nature of assistance and ben by Goldstein below: private entity, efits accorded the Edmon performing firefighting— function— son, 621, 500 at 111 (citing U.S. S.Ct. 2077 traditionally that is exclusively gov- Services, Tulsa Collection Professional ernmental Although function. the Su- 478, 1340,

Inc. v. Pope, 485 U.S. 108 S.Ct. preme Court not specifically has addressed (1988)); 99 extent L.Ed.2d 565 and whether fire protection constitutes a tradi- governmental regulation nature of over the se, tional and per exclusive state action institution, Manufacturers, American 526 Court’s treatment of the issue acknowl- Haavistola, 52, 977; U.S. at 119 S.Ct. 6 least, edges, very at the “that protec- fire 215; F.3d at how the state itself tion be an exclusive state function.” ie., entity, views the whether the state Haavistola, Evans, 6 F.3d at 216 n. 1. See regards itself the actor as a state actor. (“A 382 at park U.S. 86 S.Ct. 486 ... Co., Metropolitan See Jackson v. Edison is more like a department police fire or 345, 352-53, 419 U.S. 95 42 S.Ct. department traditionally serves Haavistola, (1974); L.Ed.2d 477 at F.3d Bros., community.”); Flagg U.S. 216-17. We must underscore that none of (“[W]e 163-64, 98 S.Ct. 1729 would be factors, isolation, these establishes state if remiss we did not note that there are However, totality action. municipal number state and functions circumstances, inform these factors our not covered our election gov- cases or questions. resolution of state action reasoning erned of Marsh Ala- [v. short, “the Court articulated a has bama, U.S. 90 L.Ed. number of different factors or tests (1946),] which have been administered contexts,” different and the facts “which greater degree exclusivity by with a private party would convert into a municipalities States and than has the [vary] state actor with the circumstances function of so-called ‘dispute resolution.’ of the case.” 457 at Lugar, U.S. 102 Among are such edu- these functions as 2744. cation, fire and police protection, and tax express collection. no view as to the

B. extent, if any, city to which a or State might delegate private parties be freе to 1. performance of such functions and case, Turning to this it undisput is thereby avoid the strictures of the Four- non-profit ed that a is Amendment.”). teenth Maryland corporation operating under its vein, bylaws; own constitution and it In that owns we have identified and dis- cussed, occasions, land and from it building operates; unique which on several hoses, and it title the engines, firefighters actually holds and role of re- —without equipment related employed sup solving firefighting traditionally its fire whether is addition, pression and activities. In and a exclusively governmental rescue function. Bain, F.2d 1217- company elects its own officers and See Adams 697 (4th Cir.1982) directors, responsible running (reversing who are 18 dismissal as 344 hand, one it is difficult to conceive of

premature fact-specific because determi On closely associated more with the depart nation of whether volunteer fire service provision protection actor could not be made state than the of fire ment was state services; hand, complaint); Krieger any private face v. Bethes on the other may da-Chevy Squad, suppression Chase Rescue 599 citizen assist (D.Md.1984) being without bound the First F.Supp. (noting 773-74 fire However, an we need not de- “firefighting traditionally that exclu Amendment. in the sively public holding firefighting, function” but that termine here whether abstract, “engaged traditionally exclusively gov- was not is a squad rescue function, public firefighting”), aff'd, function of 792 ernmental because Goldstein has (4th Cir.1986) evidence (unpublished F.2d 139 dis submitted sufficient establish Haavistola, 218-19, firefighting exclusively that hаs been position); 6 F.3d at traditionally govern- the function of the (reversing summary judgment granted Maryland. Among things, ment in judicial other “on unsubstantiated notice” expert opinion was un- departments Maryland volunteer fire —whose contradicted “ below—maintained remanding were not state actors and determinations”);5 degree Maryland ‘within reasonable “fact intensive Gold certainty probability historical stein v. Chestnut Volunteer Fire (4th fighting traditionally fire an Cir.1994) exclusive Co., 233356, at *2 1994 WL County, Mary- function in Baltimore (unpublished disposition) (holding that ” Goldstein, land.’ at F.Supp, question fighting “the whether fire is tra This expert supported opinion with ditionally governmental an exclusive func facts,” “various historical which the district Maryland properly tion in could not be court summarized as follows: decided as a matter of law on the record First, present], require[d] prior but resolution organized pro- [there fire genuine issues of fact raised conflict tection in the populous most area of evidence”).6 Belt,” ing County, historical From these Baltimore known as “the (with cases, prior distill two had one exception) depended upon themes: firefighting traditionally City whether is a the services of Baltimore from units governmental Second, exclusively contiguous function is still areas. in 1881 the open question, an County Department determina Baltimore Fire Third, firefighting tion of whether volunteer con established. the Waverly Fire noted, Maryland Company, just action in exception stitutes state fact- that, specific inquiry. There is no doubt which had been created 1878 when noted, county as the district court the current financed the construction of might building purchase state of law on this issue be charac its and the of its fire Goldstein, “perplexing.”7 terized as equipment, property turned over its n. F.Supp. county’s Fire Commissioner when Haavistola, 5. After remand in a trial con- correct to make this determination —whether jury ducted in which a a verdict returned Ridge Chestnut is a state actor—as ‍‌‌​​‌​‌‌​‌‌​​‌‌‌​​‌‌‌​​‌​‌​‌​‌‌​​‌​​‌‌‌‌​‌​​‌‌‌​‍a matter finding department the that volunteer fire at 991, Yaretsky, of law. See Blum v. 457 U.S. Goldstein, issue there was not a state actor. (1982) 102 S.Ct. 73 L.Ed.2d 534 F.Supp. plaintiff at 368. The did not (describing "whether there is state action” as verdict, appeal the and we therefore had no course, law”). of "several one issues of Of opportunity to review the issue. always this determination need not be made summary judgment, do we nor mandate by 6. This earlier case "was instituted Ivan factual, disputes underlying that this decision Goldstein, Goldstein,] [Scott father of Rather, by be resolved the court. the ulti- plaintiff present in the action. The case was mate resolution of whether an actor was a voluntarily by plaintiff dismissed after re- functioning state actor or under color of law Goldstein, F.Supp. mand.” at 368 n. 1. question of law is for the court. below, clarify 7. While point we seek to this pause to note that the district court was County Department Fire was estab- ties at fires and on way to and from Finally, years in the § lished 1881. fires.” See Md.Code Ann. art. County Further, Fire after its establishment companies volunteer fire —includ- Department rapidly grew. ing members of Ridge Chestnut im- —are from liability mune civil for acts taken facts, the Mary- Id. Under these State of performance of their duties. Md.Code provider land was the exclusive of fire- Ann., § Cts. & Jud. Proc. 5-604 until it fighting effectively services dele- gated private that function to state-funded

actors. These uncontradicted facts and c. expert testimony clearly thus establish the Ridge Chestnut thus has been cloaked first element of the state action determina- sovereign with immunity and en- Ridge tion: Chestnut has assumed a func- with police powers traditionally dowed re- firefighting—that traditionally has tion— exclusively served A private state. been the exclusive function of the state. not, hand, party may on one function in the b. state, province exclusive of the exercise state, powers reserved to the as the and benefit Supreme

Insofar Court has ad- state, from protections reserved to the monished the lower courts to examine the circumstances, hand, totality while on the other act of the see cases without re- 341-42, gard to supra cited those circumstances the Constitution. are We thus state finding Ridge reinforce action here. confident that Chestnut perform- Thus, to the any ing extent that there could be and exercising “powers functions tradi- doubt that Ridge fulfilling tionally exclusively Chestnut reserved to the State.” Andrews, functions that traditionally have and exclu- (quoting 998 F.2d at 218 Jack- son, 449). sively province been the the state —and 419 U.S. at 95 S.Ct. assuaged we have none—such doubts are

by the incidents of sovereignty have heaped upon beеn Chestnut Ridge. For

example, Ridge of Chestnut members In addition to the foregoing, there are authority: have the other circumstances surrounding oper- (1) buildings liability to enter ation and function of “without trespass” reinforce our progress finding where a fire is it is a state or “there actor. For example, is reasonable cause to believe re- from, progress”; a fire is in ceives substantial assistance and is regulated extensively by, the State of Ma- any building enter near a fire to Indeed, ryland. the district court thor- fire; protect it from oughly explained aspect case any any to order person to leave follows: building place “vicinity or in the of a fire or emergency” protect per- other Career and volunteer companies fire from danger; son County Baltimore are dispatched vehicles, to order that caravans of county dispatch- fire scenes a central crafts railway or cars be detached er. The factors considered the dis- of safety;

interest patcher in determining whom to call are (5) to maintain “vicinity order severity the location and fire or fire or emergency” by exerting other scene, emergency At event. the fire police powers the area. volunteer fire companies are sometimes (1999). 48, § See Md.Code Ann. art. over companies, command career fire addition, In Ridge members of Chestnut while on other occasions career and vol- may be deputized “deputy as sheriffs” and cоmpanies unteer fire share command at thereby powers depu- “exercise the of such the scene. (like Maryland’s code. all volunteer fire 13-515 of education

Chestnut County) grants in Baltimore is and loans to volunteer fire companies State County including Ridge, of the Baltimore Volun- Chestnut companies, member (“BCVFA”). through Emergency Fire The Assis- teer Association are made fire- requires approved that volunteer tance Trust Fund and and BCVFA fighters types agencies. have certain of certifica- monitored Md. Ann. State they fight 38A, § training tion before art. 46A. Code and/or fire meet those volunteer fire Marshal, whose “the State, preventive inspection and correc- requires Department company the Baltimore Code establishes fire types of BCVFA. company Article suspended, fight any ^[*] dispatch establishment safety practices off its ^[*] 38A, certification and will be If county. its career fires requirements, that volunteer fire will take the volunteer fire the volunteer fire the Baltimore company’s section 7 of the County dispatch system ^[*] responsibilities suspended and enforcement of These Office of the firefighters. Hi Fire county. throughout members the volunteer are the training County Department Hi Maryland from the company company and will include fail to same Fire Fire If a ^[*] that is the State mote: tions of their Chestnut Chestnut types Volunteer lance fire, rescue, high quality creased costs of of this of volunteer and ambulance services to the citizens local appropriated by The The Increased financial cоmpanies given State; [Ridge] Ridge, governments; equipment. continued fire departments, delivery Maryland. and ambulance operating fire, rescue, and fire receive receives State apparatus protection, financial of effective and the State to and significant por- revenue from For example, support greatly companies and other including viability funding rescue, ambu- pro- for in- 38A, § Payments Md. Ann.Code art. 45B. activities, tion coordination of fire county under this are made to statute each programs paid with volunteer and fire companies for distribution to fire for the companies, agencies and other State and purchase equipment and rehabilitation political exercising subdivisions enforce- of facilities. Id. Funds fire distributed to analysis and critical aspects, ment and companies under this statute are condi- Maryland evaluation of fire statis- loss upon compliance requirement tioned with a problems tics for determination of they copies be audited and solutions.” agency. account be submitted to State 7(b) (1997). 38A, § Md. AnmCode art. 38A, §§ Md. AnmCode art. 45C-D. addition, Maryland State Fire- operating receives reve- Association, a men’s state-funded associ- County nue from the State and Baltimore ation, inspections conducts annual of all governments, and uses these funds apparatus, equipment, fire and rescue insurance, such items utilities and fuel. 38A, art. facilities. Md. Ann.Code § 46B. Maryland Under and Baltimore Coun- law, training required ty grants provid- and loans are also

State-funded members, See, companies. volunteer fire and is ed for volunteer fire §§ Maryland e.g., County conducted Baltimore Fire Code 15-161 University seq. Rescue Institute at the et Members of volunteer Maryland, companies a state institution. Md.Code fire are covered under State (1997).... See, Ann., county plans. e.g., § Educ. benefit Md. 13-103 (disabili- 38A, §§ Ridge’s ambulance service is art. 42-42B Ann.Code benefits); Ann., required ty to be licensed under Md.Code Lab. & section

347 (1991 consistently Supp.1996) example, recognized for have § 9-234 & Empl. (workers’ a func “firefighting governmental Md. Ann.Code compensation); 48A, attach if (group immunity § 425 life insur- tion to which would art. ance); § County 23-147 appellee government agency....” Baltimore Code were a firefighters Gaithersburg- are (pensions). Volunteer Mut. Ins. Co. v. Utica Inc., purposes of the duty on Fire 53 Md. Washington Dept., considered Grove Safety 589, 987, (1983), Benefit Act. Md. Public Officer’s App. super 455 A.2d 991 38A, § art. 45. Volunteer Ann.Code seded statute as stated in Chase v. companies firefighters Baltimore, receive fire Mayor City Council 126 of see, exemptions, (1999). tax benefits and 427, 239, several A.2d 247-48 Md.App. 730 Ann., § Tax-Prop. 7-209 e.g., Md.Code recognition was underscored in Potter This (1994), paying exempt and are from 347, Md. 524 Dept., v. Bethesda Fire 309 private county fees that other State (1987), in Maryland A.2d which the pay. are Md. corporations required Appeals upon of was called to decide Court Ann., § Corps. & Ass’ns 1-203.1 Code departments volunteer fire in Ma whether corporation^].” ryland “quasi-public quasi- Goldstein, Appeals The Court of defined F.Supp. at 369-70. to 1 public corporation by reference W. course, “receipt of state funds Of Swearingen, Cyclopedia Fletcher & C. of private insufficient to transform alone is § Corporations Law of Private actions,” regu actions into state and state (1983 Vol.): Rev. nature of the busi “[T]he alleged unrelated to the constitu lation [by private corporation] ness conducted violation, extensive, if is not tional even become so affected with ... sufficient, itself, to effect this transfor corporation that the thus becomes interest Haavistola, (quot 6 F.3d at 215 mation. And, examining after quasi-public.” Raine, ing F.Supp. Alcena v. duties, and afford rights, public assistance (S.D.N.Y.1988)). Nonetheless, substantial ed volunteer fire the Court of companies, regula funding state and extensive state Appeals concluded: clearly present in this ease—are fac tion— supervision, examples These weigh finding in favor of a of tors part and control on the oversight state action. clearly pe- indicate the government the duties culiarly public nature of corpo- fire performed “private” to the state ac- Another factor relevant County[, Mary- Montgomery rations in is how the state itself tor determination that such cor- They also show land]. Jackson, In 419 U.S. at entity. views are, fact, governmental porations example, 95 S.Ct. Su- nature. alia, Penn- preme upon, Court relied inter an elec- sylvania’s view of the function of Potter, words, 524 A.2d at 68-69. In other holding provision

tric that the vol- Maryland itself considers State not of eleсtric service did constitute state like Chestnut companies, unteer fire Similarly, recognized have action. actors, although Ridge, to be state based on the determination of state action dispositive, ‍‌‌​​‌​‌‌​‌‌​​‌‌‌​​‌‌‌​​‌​‌​‌​‌‌​​‌​​‌‌‌‌​‌​​‌‌‌​‍this fact militates favor adoption “traditionally the actor’s of a ex- action. finding our state clusively government “hinges function” conduct given how a state itself views the of, entity.” the private the function consideration, arising final often One

Haavistola, 6 F.3d at 218. action questions, the resolution state area, a nexus between Maryland authority is clear: whether there must be specific indicia of state action and Maryland regards the State courts, comprising alleged constitutional Maryland actor. acts Ridge as state 348 is, some of the cir- tion the indicia of state action and

violation. That under between above, comprising alleged we have specific cumstances set forth re- the acts the a connec- quired plaintiff that the establish constitutional violation—that has been re- of law and the quired tion between the color in other contexts.

alleged violation of the Constitution.

Skinner, example, a railroad’s act of testing group employees pres- a for the today hold that Chestnut We thus alcohol was held to be drugs ence of or Ridge, department a volunteer fire the of law there was a

under color because a Maryland, State of is state actor. Our testing direct nexus between the and fed- supported conclusion is consistent with and authorizing regulations eral thе railroad’s holding the of the Second Circuit in Skinner, 615-16, testing. 489 U.S. at 109 Middlebury v. Volunteer Fire Janusaitis S.Ct. 1402. (2d Cir.1979). Dept., 607 F.2d 25 are, however, different consider-

There There, held, circuit simi- our sister under ations at stake once it has been deter- circumstances, lar a that Connecticut vol- carrying mined that an out func- actor is department a unteer fire state actor traditionally exclusively tions reserved case, purposes of section 1983. In that to the state. We thus conclude that when carefully all Second Circuit examined it has been established the State has present, including: of the circumstances empowered, permitting, private or is a ac- (2) involvement”; the “indicia of state territory that tor to homestead on has actor; carried out functions exclusive, been the traditional heretofore relationship the nature of the between the State, province of the there need be no actor; powers state and the specific demonstration of a to the nexus and authorities that had been conferred previ- alleged constitutional violation. upon the actor the state. Id. at 20-25. ously recognized that a nex- requiring such circumstances, In all the and under several repre- us under would these circumstances “test[s],” then-articulated the court held “If leap logic: sent an untoward that the department volunteer fire was a performing public [actor] were held be short, state actor. Id. at 25. In the totali- purposes function for of state actiоn doc- ty-of-the-circumstances approach applied trine, then it would be difficult to conclude correct, Janusaitis under that that personnel during decisions reached approach, functioning performance public of that function under color of law. subject were not to constitutional stric- applied We note that the Fifth Circuit Andrews, 1; tures.” 998 F.2d at 219 n. see reaching contrary different rationale in supra also note holding Yeager McGregor, City of (5th Cir.1993). There, logic

We believe the of Andrews— F.2d that no cir required nexus is under these court conducted a review” “fact-specific “public cumstances—is correct. The func the “history, tradition and local law sur- “carefully rounding departments” “ tion” test is so confined” that we volunteer fire Texas, worry need not that the absence of a nexus it applied pub- ‘exclusive’ subject requirement inappro will actors to lic function” test isolation before con- priate liability Flagg as a state actor. See cluding department the volunteer fire Bros., 436 U.S. at 1729. In issue there was not a state actor. Id. at deed via private Yeager “[s]tate action exer 340-41. We find the decision to be ... public cise of functions been found its distinguishable apprehension has both —on Andrews, in only application narrow circumstances.” of the law and in its of the law Thus, First, Yeager F.2d at 218. to the court ap- facts. “ may be plied held liable as a state actor without ‘exclusive’ function” test indicia demonstration of nexus—-a connec- without consideration of other action; words, writer”; is, In other while each of consistent “letter he state isolation, tests, constantly writing leadership have applied concerns, worries, Ridge Chestnut with his satisfy in Yeager been insufficient to the Nonetheless, test, complaints. and it is Gold- state action had the been indicia post-election stein’s correspondence to totality, in properly viewed their the con- Ridge Chestnut between December 1995 have clusion of that been differ- court and March 1996 that forms the factual Moreover, Yeager distinguishable ent. is Thus, (1) underpinning appeal. of his facts, re- on its inasmuch as: there nowas that correspondence view in some detail. evidence that had exclu- firefighting been sively government, the of the province 1..

Texas; (2) authority and in Texas did support post-election his first relevant conclusion Texas re- corre- 17, 1995, spondence, an dated garded firefighting exclusively gov- as December to Committee,8 the Executive ernmental function. We therefore do not Mr. Goldstein alleged that Yeager Captain responsible find to be was persuasive authority. for during three errors that occurred a where, here, To the contrary, as an ac- Among rescue. other things, Goldstein as- (1) tor: out a firefight- carries function' — (1) Captain serted that: had ing has traditionally exclusively and —that “screamed at people ‘stay to back [at (2) State; province been- the of a is en- and clean’ appointing station] rather than powers protection, dowed with and includ- crews,” with the result that the crew re- ing police powers sovereign immunity, and sponding emergency “very inex- traditionally exclusively reserved to the perienced” lacking and in proper technical (3) State; substantially is funded (2) knowledge; Captain left several (4) state; extensively regulated by emergency technicians behind at the sta- (5) state; and considered be a state tion, which “compromised patient and care itself, actor the state we conclude that an unnecessary personnel caused shuffle to the actor is a A necessary state actor. patients”; attend to the the Cap- corollary of our first conclusion—that by failing tain showed “favoritism” to sus- Ridge’s personnel Chestnut decisions are who, pend someone in violation company purposes “under color” of law for sec- operating procedures, “showed to the tion 1983—is our holding those deci- the emergency]” [of scene rather than sions must with the comport First Amend- Station,” “proceeding to the inasmuch as ment of the thus turn Constitution. We Captain suspended had Goldstein the next issue to be considered this the same conduct. J.A. 827-28. This let- appeal: carry whether Mr. Goldstein can ter with a a request concluded formal burden to establish a violation thereof. investigation and a demand for written response complaints. the three IV. later, days Three on December A. Goldstein sent a memorandum to the Ex- joinеd Mr. identifying Goldstein ecutive Committee the Chest- firefighter Ridge firefighters per- volunteer and for the nut who had: years, sought next ten he cardiopulmonary was elected mitted their resuscitation (“CPR”) lapse, number of offices. His rise certifications to power curtailed take training required failed to for drivers. firefighters December when he lost the elec- Goldstein also maintained that for company Captain. permitted tion Before Gold- on the list should not be to “ride election, apparatus.” stein lost he had been J.A. Kakel, III, ry Newberrey,

8. The members of the Executive Committee William Michael Yaffee, McCausland, Fox, Eugene Reynolds, were Richard Ross Har- Coroneos. Nick crews/equipment, image and the day, sent a sec- On the same Goldstein community.” Company Executive J.A. memorandum to the Com- ond Captain had asserting mittee week, January During the next several errors on another committed another yet Mr. Goldstein sent letter Specifically, call. Goldstein emergency First, myriad raising to Yaffee issues. had violated a Captain claimed that requested investigation an into County operating procedure compa- and a Lloyd approach- and Matt Moritz “Jamie emergency to an ny bylaw by responding Gede, ing Dena school my goddaughter, three, call a crew of instead of a crew with regarding Company business.” J.A. 836. four, by notify dispatch failing and to Second, Yaffee that he Goldstein informed engine responding “that was short Captain had discussed the conduct of the request- 830. This letter crew.” J.A. also during Heights “the rescue at Park & into incident. investigation” ed a “full representatives with Walnut Avenues” Id. Academy” the “Fire Rescue and the “Vol- Association,” that next letter came two unteer Fireman’s Mr. Goldstein’s later, 4, 1996, January representatives weeks on when he both had concurred Yaffee, that had oc- charge wrote to defendant President of Goldstein’s errors Third, re- Id. highlighted the Executive Committee. This letter curred. Goldstein ap- potential consequences compa- the Executive some sponded to Committee’s if parent rejection allegations ny relating “gear of the made in the issues and safe- Fourth, ty” promptly. letter of December 1995. were not addressed Goldstein’s rejection, to that Goldstein Goldstein noted his belief that the rules response (1) being fairly, asserted that: the Executive were not enforced inasmuch Commit- (and firefighter) investigation allegations tee’s of his was as his brothers one other warnings had for inadequate and failed to follow the re- received conduct (2) quired procedure investigations; ignored by his had been when committed- oth- Fifth, er allegations safety firefighters. inquired violations and favorit- he whether (3) substantiated; any ism were a full in- there was truth to that Yaffee rumors (and vestigation considering kicking should be conducted. Gold- was Goldstein others) by underscoring company. Finally, concluded this letter out of the stein Gold- requested investigate his concern that the Executive Committee stein that Yaffee “swept training rеquirements being had under the table” whether [the issues] giving complaints by company. instead of the atten- met Mr. Goldstein ended tion they by noting deserved. J.A. 835. this letter camara- derie being undermined the actions later, 11, 1996, January week on One officers, newly elected and he made Mr. sent another letter to Goldstein Yaffee following “I request: appreciate would listing problems Goldstein asserted he had you professionally it if would handle this during Among noticed a recent blizzard. + not allow other members to read this things, other Goldstein observed that: (emphasis original). letter.” J.A. 837 to adequately “line officers” had failed Following January stock and other supplies; medical transmission stored; letter, equipment improperly had been Mr. Goldstein apparently Captain’s response spoke phone, and the “aloof’ with Yaffee and on Janu- Gold- 19, 1996, complaints, coupled ary stein’s with sent another letter Yaffee Engineer’s confirming agreements during lack of full access to the Room made their (in phone Among things, contrast to other had been conversation. other officers who access), permitted January evidenced favoritism 19 letter confirmed that the steps “The Captain. emphasized following Mr. Goldstein would be taken: consistently all problems Company [would] ] these were “a detriment to enforce[ good taking using members their turnout Company, of our fires, company, suspension Mr. Goldstein’s appro- and other on all rescues gear situations”; upheld. Yaffee would priate Mortiz and [sic] a letter for Mrrs.

“issu[e] Company busi-

Lloyd regarding discussing (3) Yaffee my goddaughter”; with ness suspension, While on Mr. Goldstein was “uniformly Captain discuss with the would response terminated certain actions enforcing Company policies”; all relating to his instruction of CPR classes. with supply would address issues Yaffee Mr. allegedly falsified number In' ex- the “Line Officers.” J.A. of CPR records that he submitted to Goldstein, agreed Mr. that he change, Mr. Yaffee Ridge. was the first “bring any problems [Mr. would Yaf- discrepancy. to detect the records After I re- attention resolution fee’s] before evidence, the hearing the Executive Com- any sort to other actions future.” voted, August mittee to termi- added). (emphasis Id. nate Goldstein. B. 10, 1996, March Mr. Goldstein sent a On Based on the uncontested facts set regarding to Mr. Yaffee memorandum above, claims forth Goldstein that his sus He riding illegally.” “Members J.A. 840. pension subsequent termination noted that “the Line Officers Com- abridged rights. his 'First Amendment ignoring are established Baltimore pany principles The basic First Amendment and Baltimore County Department Fire here controlling long the issue have been County Volunteer Fireman’s Association cannot condition “[A] established. state mandatory training for regarding rules a in public employment on basis riding members.” Id. Goldstein also noted fringes employee’s constitutionally pro the riding required to members expression.” in freedom of tected interest card; have “a current CPR Hazardous 138, 142, Myers, Connick v. 461 U.S. 103 Operations; Materials Bloodborne Patho- 1684, S.Ct. 75 L.Ed.2d 708 “Our issued,” gens; Tags and PAT and he as- ... ‘a the task to sеek balance between riding serted that several members were citizen, employee, of as a in interest the Id. compliance. request- upon public matters of con commenting charged that the be with violat- Captain ed State, an cern and the interest of the ing bylaws report the and that a written efficiency the of employer, promoting compliance regulations pro- with the be performs through the it its public services duced. ” Pickering employees.’ (quoting Id. v. next Mr. day, The March Gold- Education, 568, 563, 88 Board 391 U.S. copy stein sent a of this same letter to the (1968)). 1731, 20 L.Ed.2d 811 Just S.Ct. Executive Committee. Mr. Yaffee re- right speak has a to employee as an —even 1996, 15, by suspending on March sponded public employers right at have work— run failing Mr. Goldstein for abide efficient, operations, functional agreement, confirmed in Goldstein’s Janu- be proper we must ensure the balance (see 351) ary supra bring at 19 letter competing tween these interests. complaints further to Yaffee’s attention be- actions, vein, public employee a resorting including fore to other a referrals to Executive must establish several elements to state further Commit- deprivation The affirmed claim for of First Amendment tee. Executive Committee and, employ from an adverse ninety-day suspension, rights flowing on Gold- “First, motion, trigger ment action. stein’s First entire at issue presented opportunity protection, speech an to review and Amendment public a relate to matters of interest.” approve suspension. On vote of must (4th Gilbert, 36 F.3d has never contested that Mr. Gold- Hanton v. Cir. 1994) And, Connick, stein has fulfilled this element. (citing 461 U.S. at 1684). Second, issue, considering this the district in court “employee’s held: “Because Goldstein criticized the ac- expression terest First Amendment of public questioned tions officials and outweigh employer’s interest must ‍‌‌​​‌​‌‌​‌‌​​‌‌‌​​‌‌‌​​‌​‌​‌​‌‌​​‌​​‌‌‌‌​‌​​‌‌‌​‍propriety by governmen- of actions taken a operation workplace.” efficient entity, tal Hanton, his letters involved a matter of (citing Pickering, F.3d at 6-7 Indeed, his 1731). public concern. letters ad- Third, the 391 U.S. at 88 S.Ct. safety, which public dressed matter must employee establish retaliation public imag- one of the foremost concerns he was deprived some kind—that of valu (citation omitted). inable.” J.A. 1344-45 government adversely able benefit or af Although agree with the district court that, least, very in a manner at the fected speech that Goldstein’s involved matters of would tend to chill his exercise of First concern, public application of the remain- rights. City Amendment See Edwards examina,- ing elements mandates closer (4th Goldsboro, 178 F.3d Cir. speech tion of the at issue. 1999) (“[A] public employer is prohibited from threatening discharge public em an employee’s speech “Whether ployee employee’s an effort to chill that addresses a matter of concern must Amendment.”); rights under the First content, form, be determined Governors, Huang v. Board 902 F.2d statement, given context of a as revealed (4th Cir.1990) (“[Claimant 1134, 1140 must Connick, by the whole record.” 461 U.S. alleged retaliatory show thаt action 147-48, 103 S.Ct. 1684. We must care benefit.”); deprived him of some valuable fully review the entire record to ensure Haines, 790, DiMeglio v. 45 F.3d 806-07 that policy, including matters of internal (4th Cir.1995). Finally, the employee favoritism, allegations mere employment of relationship “must establish a causal be rumors, and complaints interper other of protected expression tween the and discord, sonal are not treated as matters of protected speech retaliation: that the was public policy: ‘substantial factor’ the decision to take presume To that all matters which tran- allegedly retaliatory action.” Ed spire government within a office are of wards, 248; McVey Stacy, 178 v. F.3d public concern virtually would mean that (4th Cir.1998). 271, 157 F.3d 277-78 every certainly every remark —and criti- inquiry may of vary

“[T]he order with public cism directed at a official'—would the circumstances of the case.” v. Daniels plant the seed of a constitutional case. (4th Cir.1986). Quinn, 687, 801 F.2d 689 good judgment, While as a matter of Insofar as first three elements are public receptive officials should be ultimately questions of law that re- were constructive criticism offered their case, solved the district court employees, the First Amendment does questions examine those of law first. The require public office to be run as a fourth factor —one of causation—is one of employee complaints roundtable for over fact, such, and it will serve as a basis internal office affairs. for summary judgment only in those in- Id. at inquiry, 103 S.Ct. 1684. In our stances when there аre no causal facts in we seek ‘public’ to determine “whether the Therefore, dispute. we review the issue of likely or the ‘community’ truly to be

fact last. with concerned or interested the partic- ular expression, or whether it is more properly essentially ‘private’ viewed as question

The first law before us matter employer employee.” of between (4th speech Berger Battaglia, is “whether the a matter v. 779 F.2d [involved] Cir.1985). subtle, legitimate public qualitative concern.” Chestnut This is a in- content, form, relating public safety con- Matters are we use the quiry; quintessential “public com- matters of concern.” in the exercise of guideposts text as Edwards, at 247 sense, (noting 178 F.3d throughout: would See asking mon speech, relating proper officer’s truly police con- community be member handling and manner of concealed use speech? employee’s cerned with the safety and in weapons, public affected the content of Goldstein’s begin with concern); public Lee v. volved matters of the rele- Our de novo review speech. (10th Nicholl, 197 F.3d Cir. during evidences that vant communications 1999) memoranda (holding employee’s correspondence period, the relevant safety at in concerning particular traffic following subjects: covered the matter con public tersection was on (cid:127) allegations safety violations: Twelve cern); City Springs, Blue Kincade 28((1)inexperienced crew and J.A. 827— (8th Cir.1995) (“These F.3d state (2) training); J.A. insufficient technical potential- danger ments concerned (4) 829((3) certificates and lapsed CPR citizens, community’s surely which is a 830((5) training); short inadequate J.A. public matter of concern to the and not of 35((6) crew); in- J.A. insufficient 833— personal solely speak some interest violations); safety vestigation of J.A. er.”). While the content of Goldstein’s 32((7) supplies insufficient 831— incorporated matters that were speech equipment); J.A. improperly stored clearly public including allega concern— 836-37((9) gear on emer- inadequate being regulations tions call; vehi- gency failure to stabilize violated, the relevant communications also call; during emergency cle public that are not of incorporated matters training require- failure to enforce concern, of internal including poli matters 840-41((12) ments); crewmembers J.A. favoritism, cy, employment-re and other emergencies proper without riding lated matters. training). assessing speech whether the includ- (cid:127) related to favoritism allegations Three concern, ed matters of we consider 827((1) Captain: Captain J.A. speech. speech The next the form of the then suspends Goldstein conduct safety-related9 content was encom- with suspend later fails to another crew- sent passed in letters Goldstein conduct); member for same J.A. 831- and Executive Committee of the President 32((2) to “En- Goldstein denied access included re- company. Notably, Goldstein 836-37((3) room”); gear gineers J.A. allegations safety viola- quests against some but not policy enforced throughout be made known the tions not others). Perhaps company. supra See (cid:127) 836-37((l) complaints: J.A. Other however, of the significantly, more some contacted goddaughter Goldstein’s deliv- complaints safety violations were (2) ru- company about business the Executive Com- ered Goldstein to (and others) were mors that Goldstein agreement in of his not to mittee violation company). from the to be terminated complain directly to the Executive Com- Thus, company the permitting De- mittee without “speech” Goldstein’s between to first address the concerns. and March 1996 contained President cember 1995 we notwithstanding, categories of These circumstances general three substantive (2) favoritism; the does not speech find that the form of safety; communication: encompassed public concern expressions of other diminish and miscellaneous underscore that speech. concerns. Goldstein’s converted those matters analyzed and "context” form nor the context 9. We have the "form” speech did involve whose "content” public into concerns. concern, public and neither matters of submitted, they involved matters of summary judgment stage, at the we are concern. light public compelled to view these facts Goldstein, and in that most favorable to '2. might be seen as a

light, Goldstein’s letters Having public found that matters of con- attempt company leader- vigorous press speech cern were involved at issue affecting ship deeply to аddress matters here, turn question we to the second public safety. Similarly, the fact degree in- public law: “[WJhether publicly did not make his views ... employee’s terest in the statement was not, any way, does undermine known outweighed by employer’s responsibili- in his public encompassed concern ty manage its internal affairs and pro- Indeed, noted, recently speech. as we efficient’ vide ‘effective and service to pro- not forfeit the “[pjublic employees do Daniels, public.” 801 F.2d at 690. Speech Free tection of Constitution’s merely they to ex- Clause because decide Here, begin with Chestnut than press privately their views rather claimed interest. Ridge’s Brown, publicly.” Cromer v. 88 F.3d that, matter, argues general as a its inter (4th Cir.1996). short, the form of managing ests in its internal affairs —in speech pub- not detract does from cluding promoting efficiency and camara encompassed lic concerns in Goldstein’s -outweighs interest derie-— public-safety speech. related district court speech. agreed: The legitimate has a interest Finally, speech we review this maintaining orderly an and safe work place. context in which it This corre- took environment. The maintenance of such spondence was in the wake submitted an environment is itself essential to the position Goldstein’s election loss for the public safety. Although Goldstein’s indeed, Captain; volume of concerns legiti have been correspondence attacking the mate—and Yaffee indicated that some of Captain’s leadership significantly increased them manner in which he were—the following Goldstein’s loss in the election disruptive raised them was so to Chest very position. One reaction to an Ridge’s operation nut that the Executive election defeat of this kind would be to necessary Committee felt it was to sus company, seeking recommit oneself to the him pend days. for 90 “When close upon establish record future which working relationships are essential victory might election be found. Another fulfilling public responsibilities, a wide reaction kind possible to defeat of this degree employer’s of deference to the victor, thereby to undermine the attempt- judgment appropriate.” Perhaps is ing to for the that demonstrate electorate entities, public more than other a fire an error in selecting was made less-than- company must have a cohesive work en worthy leader. former The reaction seeks vironment. The Executive Committee’s (and company to better the involve response proportionate to the harm concern), public matters of while the latter reasonably perceived that it and there second-guess reaction seeks to the leader- fore, my judgment, in was constitutional (which ship likely purely is more to involve justified ly under the circumstances. matters). however, Again, internal we are (citations omitted). vein, compelled light to view this in the In evidence J.A. 1346 most favorable Mr. that Ridge generally to In Chestnut asserts that it Goldstein. light, simply overriding protecting cannot conclude that he had “an interest in anything safety had but a good-faith security intent to the and of its members” short, identify safety complaints violations. In Mr. and that disrupted Goldstein’s allegations relating public company “put company Goldstein’s and in in safety, Appellee the form and context which turmoil.” Br. for at 26. Fur- extremely strong showing. agree that ther, which We disruptions, actual even if the firefighting company evidentiary support state actors—like specific without are here, justify suspen- strong promoting not sufficient to here —have interest were trust,- sion, signifi- claims that and Ridge harmony, internal camaraderie Chestnut However, from general- would have resulted members. disruption amongst cant its Because, conduct. Chest- allegations Mr. ized and unsubstantiated Goldstein’s contends, thereof, courts “substan- Ridge give nut “disruptions,” predictions and employer’s a government deference” to yield specific allegations tial to the made must and state entities disruption, here, predictions specifical- which related im- with “less Indeed, should not be sidetracked any ly safety public. of the concerns,” resolve this we should portant complaint by firefighter one that another Ridge’s favor. balancing test firefighter violating safety regulations is is 24-25. that Appellee agree Br. for at We general sure to affect “camaraderie” companies strong have a volunteer fire However, adopt sense. the district promotion of cаmaraderie interest approach permit compa- court’s would fire efficiency, we thus accord Chest- and similarly nies—and situated state actors—(cid:127) ar- weight nut for these substantial complaining firefighter to sanction the ticulated interests. upon unsupported generalized based predictions “disruptions” caused weight given to be

We next evaluate In the context of a fire com- public safety complaints. ex public concern Among effectively a result would en- speech. pany, such pressed silence,” whereby a “red line of fire public the substance of the dorse things, other enti- companies, police that some officers and other allegations concern included required carrying' public lacked ties out crucial functions emergency personnel certifications; permitted quash complaints leader are affect- training and that the ing public safety general aegis under the company overlooking viola ship of the and the avoidance of dis- safety and that of “camaraderie” regulations; tions of are to countenance jeopardizing ruptions. unwilling conduct of crewmembers was indeed, immunity; one public.10 crew and of the such a blanket safety of the observed: aptly were a matter of the commentator allegations These concern, such, they and as highest public ability exercise her firefighter’s [A] highest entitled level of First rights prove could First Amendment Connick, protection. Amendment Sеe safety welfare of a crucial to the (‘We caution U.S. 103 S.Ct. proper- community. If a is showing may necessary be stronger trained, ly using equipment, outdated employee’s if the more substantial speech staffing, the communi- adequate or lacks concern.”). ly public involved matters about it. In the con- ty needs to know Supreme public employment, text of these two concerns—that of weighing recognized free-speech has ease- Court public— workplaces to facili- government ment however, reject district we must speech concerning public tate matters of analysis. If a court’s member subject firefighters concern. Volunteer knowledge being com- has summary discharge or other forms of promised by emergency personnel, will think twice before punishment from so person discouraged should not be with speaking problems out about Therefore, sanctions, justify reporting. company. local fire company, from the including suspension Jr., concerns, Krotoszynski, Back to of Ronald J. based on the substance these Favor Briarpatch: Argument make an required An legiti- concerns were that some of Goldstein's 10. The district court found that Chestnut Ridge's representatives own had -conceded mate. Stat¡e Meta^-Analysis Constitutional Ridge, nated from Chestnut we conclude Determinations, Action 94 Mich. L. Rev. that this element has been satisfied. (1995). Although today 331-32 we balancing resolve the test in favor Gold- 4. stein, emphasize inquiry that the is a Finally, Goldstein bears the burden of words, pаrticularized one. In other we do demonstrating that protected speech his not hold that a complainant’s interest awas “substantial factor” in Chestnut safety complaints will voicing always out- Ridge’s decision to suspend him. Ed- police department’s or fire weigh interest wards, 178 F.3d at entry 248. The maintaining efficiency morale and within summary judgment necessitates that we merely ranks. its conclude that when review this factor de novo. Mr. Gold- the evidence in this case is viewed in the stein’s burden is thus considerably lighter Goldstein, light most favorable to stage at this proceedings, inasmuch Ridge’s generalized and unsubstantiated all disputes we resolve factual in his interests, substantial, although fail to out- Dodson, favor. See Jones v. 727 F.2d weigh public’s being interest in aware “ (4th Cir.1984) (If 1329, 1337 the ‘evidence of these violations. Pickering, See genuine raises issues as to the actual rea- (“[T]o 391 U.S. at 88 S.Ct. 1731 employee’s son for an discharge,’ the moti- extent that the Board’s position here can vational issue ... must be resolved be suggest taken to that even comments fact.”). trier of public on matters of concern that are sub- stantially may correct ... grounds furnish Notwithstanding this standard of for dismissal if they sufficiently are critical review, we must affirm the district court’s tone, it.”). we unequivocally reject ruling against Mr. Goldstein because he satisfy cannot his burden of demonstrating that protected speech was a substantial We next consider whether Gold- case, factor in his suspension. In this Mr. stein deprived govern of a valuable evidence, Goldstein has submitted no evеn ment adversely benefit or affected in a following completion of extensive dis that, least, manner very would tend covery, that the protected substance of his to chill his exercise of First Amendment speech was a substantial factor behind his rights. We need not dwell on this element suspension. conjecture Left with mere because it is clearly satisfied here. The effect, this the district court properly Supreme recognized Court has that a fail summary awarded judgment to the defen hire, ure to a denial of promotion, or denial dants. transfer constitute the deprivation governmental of a valuable outset, benefit. Ru At the the record submitted Illinois, Republican tan v. Party 497 support of the summary judgment motions 62, 73-76, 110 U.S. clearly 111 L.Ed.2d evidences that Goldstein was sus- import The clear holding pended, terminated, and later for reasons was that “an employment adverse action unrelated to allegations relating did not have to be the substantial equiva public safety. The Executive Committee members, lent of a dismissal to violate a em each of whom voted in favor of ployee’s rights under the First Amend suspension, articulated a basis ment.” DiMeglio, 45 F.3d at It also for the suspension separate and indepen- makes no difference that Goldstein was a protected dent from speech. example, For fireman; volunteer stripped he has been of Yaffee suspended testified that he Mr. powers, rights, and obligations heaped solely because Goldstein sent the upon members of Chestnut Ridge. See letter directly to the Executive Committee Thus, supra at 344-45. inasmuch as Gold- on March in violation of the stein suspended was first and later agreement termi- that Goldstein made on Janu- a ver- jury could return that a reasonable 19,1996, agreed Goldstein under which ary any remedy non-moving party”). to We em- Yaffee a dict for give to chance report however, would problems before Goldstein that the Executive phasize, Committee. Simi- to the Executive them members need have been Committee not of the Executive the other members larly, apprehension in their of the facts correct McAusland,11 Henry Committee —Ross underlying justifications. articulated Newberrey,13 Michael Kakel,12 William hand, other those must beliefs On Fox,14 Nick Co- Eugene Reynolds,15 and faith, honestly good held and in have been sepa- articulated reasons róneos16—each and, stage proceedings, at this of the we protect- and distinct from Goldstein’s rate that be able discern the articulat- must by each suggested The theme speech. ed ed, justifica- non-protected-speech-related mem- voting Executive Committee of the employment actions tions for adverse that the substance Goldstein’s bers was pretext for are not retaliation substan- with nothing to do protected speech had speech. tially by protected caused suspension. his case, however, the articulated'— In this explanations legitimizing as Inasmuch justified for constitutionally and —reasons eаsily be prohibited conduct can otherwise indi- Executive members’ Committee hoc, these post have reviewed conjured we suspend are vidual decisions to Goldstein Thus, jaundiced eye. with a explanations by the balance of the record substantiated record to have reviewed the determine example, For it uncontested appeal. on jury con any could whether reasonable 1996, 11, letter of March that Goldstein’s for that the articulated reasons clude agreement with Yaffee violated suspension were for pretext Goldstein’s be- complaints to Yaffee bring all further substantially motivated suspension them to the Executive presenting fore a reason protected speech; if Goldstein’s em- prior violation of a The Committee. conclusion, then could jury able reach . fur- in this manner agreement ployment See the case for trial we must remand sanctions, justification a clear nished Inc., Lobby, 477 U.S. Liberty Anderson have been any such sanction would and 91 L.Ed.2d 202 106 S.Ct. public safety relat- (1986) to Goldstein’s summary is unrelated (holding judgment that Further, viola- Goldstein’s complaints. “if the is such ed appropriate evidence 90-day period, ”hop[ed] that he to sus- had that McAusland voted 11. claimed bit cool down a little of con- would pend that[Goldstein] Goldstein based on number cerns, get fact he didn’t charges ever over that formal were and make[C]aptain.” which no (2) Newberrey (1) also J.A. 1205. liability; ex- sexual harassment filed: ”disrespect[ed] that had believed Goldstein company felt un- pressions members who subordinates,” Goldstein; (3) "was disre- J.A. working with Goldstein's safe J.A. 1217. 1994; (4) spectful to the senior officers.” turn- Goldstein’s insubordination critique Captain “a ing a mistake into (J.A. 888); (5) [C]aptain” attack only remember that he voted 14. Fox could driving out of suspend another President on the recommendations reliance (6) company; allegations of use investigating J.A. 958. of the committee. drugs; allegations Gold- illegal intimidated other stein had members to sus- Reynolds stated that he had voted 15. Ridge. pattern pend "a of behavior based on 963); (J.A. disruptive company” Henry perception great bulk "[t]he testified that his on the fact Kakel 12. cap- directed then was in a of "tur- was that moil,” state accusations alle- and he that some of the tain.” J.A. 966. believed "nitpick[y]” J.A. gations were and untrue. based, suspend inter 16. Coroneos voted alia, presented "way [Mr. Goldstein] on the good suspension subjects to the order voting in a mem- detrimental favor of pattern behavior.” company,” recom- and "his investigating committee that ber of Newberrey suspension, J.A. 954. mended Goldstein’s agreement of his with Yaffee the complaints tion was the substance of his not articulated reason behind the decision of employment cause of the sanctions. several Executive Committee members to actually steps That the took suspension. vote favor of Goldstein’s remedy problems Goldstein had identi- Thus, to the extent that the violation of his supports fied is another fact that Chestnut agreement with Yaffee served as the basis concedes, is, Ridge. That as Goldstein of Goldstein’s his suspension, suspension allegations, “[a]fter Goldstein made his substantially would not have been caused Yaffee and Coroneos issued a memoran- his protected speech. dum setting to the Executive Committee Similarly, the members Executive forth training need- certification and/or plainly perceived Committee that Gold- ed by certain members Chestnut complaints sought stein’s undermine the [Ridge].” Appellant Acting Br. at for newly Captain’s leadership elected instead remedy safety problems identified raising safety in good concerns faith. us, certainly the record Goldstein reinforces testi- On before this articulated justification is mony substantiated. As noted of the Executive mem- Committee above, high Goldstein submitted a volume bers that the substance of the Goldstein’s complaints against newly elected allegations was unrelated to the sanctions Captain following immediately the election. imposed. later supra at See 353-54. While this context In response, Mr. Goldstein that argues does not vitiate concern encom- require two facts reversal: that passed it speech, Goldstein’s does sub- letters sent to Chestnut between great stantiate the claim “[t]he that bulk of December March he accusations 1995 and 1996 were the were directed to the cap- tain,” J.A. and that com- cause of suspension Goldstein’s his March were plaints “nitpick[y].” J.A. 932. that the allegations safety some of violations cоntained those were letters The other surrounding facts Goldstein’s true, if accurate.17 Even these allegations suspension also support Chestnut Ridge. do carry required burden. What Significantly, Goldstein was not sanctioned Mr. produce Goldstein evi- until he needed agreement violated his with Yaf- Further, dence that protected speech fee. has never alle- alleged Goldstein —the that Chestnut Ridge any gations took action with “sub- violations—was a the intent of quashing the substance of his stantial suspension factor” in his that or complaints. contrary, To the Mr. Gold- justifications articulated for sus- his stein concedes that Yaffee reacted to his pension pretext. were a He has submitted complaints by numerous requiring only Instead, no evidence to either effect. his (Yaffee) he given that be opportu- first is, base, argument that because some nity respond complaints. to future Had true, his allegations suspension were Goldstein’s outlet complaints for been shut must have substantially been caused off, or had there no procedure been clear the allegations. reject argument. this lodging such complaints, then the man- light, we conclude that no reason- ner which Goldstein had submitted his jury able pro- could find public safety related concerns could not tected speech was substantial factor have served as a for employment basis However, Ridge’s decision to him. suspend sanctions. present facts The including the notice of a clear uncontroverted evidеnce establishes proce- here— dure for the lodging complaints— Ridge suspended of future only serve to reinforce the conclusion other conduct. See, 1015-20, (Yaffee e.g., (Coroneos J.A. 1040-41 admitting ad- 1104-09 that members true); mitting allegations some required training). J.A. lacked losing an for the de- ately upon election

5. captaincy. The district court partment’s short, “sub- having analyzed the that be- recognized Goldstein’s properly stance, form, speech at and context” to highly was detrimental Chestnut havior here, the that communi- we conclude issue perform its ability to essential Ridge’s matters both of incorporated cations ensuring I public safety. function of purely matters internal of concern the reject therefore not district would concern; not that Chestnut could Rather, I point. on this analysis court’s sub- sanctioned Mr. Goldstein have judgment affirm the without reser- would he speech; that protected of his stance vation. fact, benefit; was, of but that deprived law, jury a matter of no reasonable departments fire ef- Police and cannot Mr. that the substance of could conclude fectively protect public without a sub- speech protected Goldstein’s discipline measure of order and some to suspend in the stantial factor decision working ranks. close rela- their “When him.18 fulfilling public essential to tionships are degree a wide of deference responsibilities,

V. judgment appropri- employer’s to v. Myers, ate.” Connick U.S. incidents Having examined the of sover- 151-52, 75 L.Ed.2d Ridge, con- borne Chestnut we eignty thаt district court found The fire Maryland that volunteer clude this maintaining Ridge’s interests law, is, as a matter of a state department orderly working safe environment an arid reason, For actor. that interests. outweighed speech Goldstein’s First Amendment. Howev- bound er, because cannot establish Goldstein support A facts the district number of factor was a substantial protected speech point. begin on this To court’s conclusion dismissal, suspension in his or we affirm with, frequency the sheer volume and of summary judg- of entry the district court’s complaints give them a scatter- Goldstein’s of the defendants. ment favor letters quality. Goldstein submitted shot AFFIRMED. detailing grievances Presi- numerous to dent Yaffee or Executive Committee WILKINSON, Judge, concurring Chief a period over on at least nine occasions judgment: part concurring Moreover, this than months. less three barrage complaints came fast on pleased majority’s

I to concur in the am the election for dis- heels of Goldstein’s loss of as to Part IV.B.2. The opinion except captaincy December correctly department’s court the fire trict found Further, majority recognizes, as the maintaining interests in or- 1995. department’s related number Goldstein’s concerns outweighed discipline der safety. all only marginally or at to step under the not speech interests second January letter example, in his Pickering went For balance. Goldstein Yaffee, last- disrupt department by complained about lengths to Goldstein great meeting times and the changes immedi- minute launching complaints blizzard dismissal, from which the argues there is sufficient evidence As for Mr. Goldstein could the Executive Committee allegations records were members of falsified had rec- Ridge actually properly dis- find that Goldstein falsified pretext, that Chestnut Having concluded that speech. on his The district ords.” J.A. missed him based suspension did violate disagreed: "Of if the evidence Goldstein's court course Amendment, discharged affirm the district employer em- First also upon an an which evi- finding that was substantial give court’s there ployee so weak as to rise to upon could been pretextual, which Goldstein have it was there would dence inference that entry of affirm the jury. terminated. therefore exist an issue of fact be decided That, however, summary count. judgment is not case here where potential formation of “cliques” the sta- Tony Neyshea CHAMBERS,

tion, in raising safety addition to issues. Petitioner-Appellant, Yaffee, January In his ‍‌‌​​‌​‌‌​‌‌​​‌‌‌​​‌‌‌​​‌​‌​‌​‌‌​​‌​​‌‌‌‌​‌​​‌‌‌​‍letter complained having about been “Engineers denied access to the room” JOHNSON, Gary Director, L. Texas De during prior his tenure as first lieutenant. Justice, partment of Institu Criminal Indeed, letters rife with Division, Respondent-Appellee. tional part accusations favoritism the No. 99-40896. newly captain. elected of sniping This sort reinforces conclusion that Goldstein’s Appeals, United States Court of speech disrupting was directed toward Fifth Circuit. part by was motivated in June personal vendetta. As Modified on Denial of Rehearing Contrary to the expressed by concerns July majority, approach court’s district permit

does not state actors to immunize

themselves from the First Amendment

with appeals reflexive to “camaraderie.”

Rather, the district court undertook a par

ticularized examination of the facts

case, See, Connick/Pickering as requires. Connick,

e.g., 142, 150, 154, 103 U.S. 1684; Educ., Pickering

S.Ct. v. Board of 563, 568, 569,

391 U.S.

L.Ed.2d 811 The district court the manner in

considered which Goldstein complaints,

raised testimony well as

concerning disruptive effect of Gold- department.

stein’s behavior on the fire

While acknowledging great importance in speaking Goldstein’s interest on mat safety,

ters of the district court concluded

that, particular circumstances, under these

the employer’s paramount. interests were

Unlike I majority, would endorse the

district court’s point. conclusion on this

Case Details

Case Name: Goldstein v. Chestnut Ridge Volunteer Fire Co.

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jul 12, 2000

Citation: 218 F.3d 337

Docket Number: 99-1089, 99-1180

Court Abbreviation: 4th Cir.