Dunbar v. Pena, et al

United States Court of Appeals
for the Fifth Circuit

No. 20-20087
Summary Calendar

Steven M. Dunbar,

Plaintiff—Appellant,

versus

Samuel Pena, in his official capacity as Houston Fire Chief;
Robert I. Garcia, in his official capacity as Houston Assistant
Fire Chief,

Defendants—Appellees.

Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-3337

Before Haynes, Willett, and Ho, Circuit Judges.
Per Curiam:*
In July 2019, Steven Dunbar, a District Chief for the Houston Fire
Department (“HFD”), made a post in a private social media group for HFD
firefighters. Discussing a transfer opportunity HFD had posted the month

*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
September 16, 2020

Lyle W. Cayce
Clerk
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No. 20-20087
2
before, he wrote: “If you are thinking about putting in for a spot in District
64 on C-shift you better have your sh** together. Wanna play games like
previously-assigned members? You will be miserable...promise.”
Under HFD’s transfer guidelines, “No member will communicate
with [a] member requesting [a] transfer, including the incoming officer, to
promote or influence the candidacy of a member or to discourage a member
from applying for a posted or anticipated vacancy. Any violation of this
directive will result in disciplinary action.” A similar statement was included
in the memorandum announcing the transfer opportunity.
HFD Assistant Fire Chief Robert Garcia saw Dunbar’s post and
expressed concern about it to HFD Fire Chief Samuel Peña, which ultimately
led to Dunbar being transferred to an administrative position in another
district. The transfer form filled out by Garcia explained that Dunbar was
being transferred because his “[s]ocial media posts meant to discourage
members from transferring to their district compromises the integrity of the
HFD Transfer policy.”
Soon after Dunbar was transferred, Garcia also asked the HFD
Professional Standards Office to investigate Dunbar for creating a hostile
work environment through his social media post. The investigation resulted
in Dunbar being suspended for three days for violating the transfer
guidelines, a suspension that was later reduced to one day. Dunbar has since
been assigned to a post as District Chief in a different district.
Dunbar, filing pro se, sued Garcia and Peña in their official capacities
under 42 U.S.C. § 1983 in federal district court, alleging that they violated
his First Amendment speech rights and that HFD’s transfer guidelines are
unconstitutional. He sought a declaratory judgment and injunctive relief.
The district court dismissed the case with prejudice under Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim. Dunbar timely appealed.
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We review de novo a dismissal under Rule 12(b)(6), applying the same
standard as the district court and viewing well-pleaded facts in the light most
favorable to the plaintiff. See McLin v. Ard, 866 F.3d 682, 688 (5th Cir. 2017).
The general rule for a pleading is that they “must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and
citation omitted). Although pro se litigants are entitled to liberal
construction of their pleadings, they must still “state a plausible claim to
relief.” See EEOC v. Simbaki, Ltd., 767 F.3d 475, 484 (5th Cir. 2014).
Public employees are entitled to circumscribed constitutional
protections in connection with their governmental duties, but they “do not
surrender all their First Amendment rights by reason of their employment.
Rather, the First Amendment protects a public employee’s right, in certain
circumstances, to speak as a citizen addressing matters of public concern.”
Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). Therefore, to be protected
against adverse employment action in retaliation for speech, a public
employee must speak in the employee’s “capacity as a citizen,” rather than
pursuant to the employee’s “official duties,” and the employee must address
a matter of public concern. Id. at 417, 421. Otherwise, “the employee has no
First Amendment cause of action based on his or her employer’s reaction to
the speech.” Id. at 418.
A public employee speaks on a matter of public concern when the
speech “can be fairly considered as relating to any matter of political, social,
or other concern to the community, or when it is a subject of legitimate news
interest; that is, a subject of general interest and of value and concern to the
public.” Snyder v. Phelps, 562 U.S. 443, 453 (2011) (internal quotation marks
and citations omitted). For example, “a teacher’s letter to the editor of a
local newspaper concerning a school budget constitute[s] speech on a matter
of public concern.” Lane v. Franks, 573 U.S. 228, 237 (2014) (citing Pickering
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v. Bd. of Ed. of Twp. High Sch. Dist. 205, 391 U.S. 563, 571 (1968)). So does a
public employee’s subpoenaed testimony on “corruption in a public program
and misuse of state funds.” Lane, 573 U.S. at 241. By contrast, employee-
to-employee communications concerning particular transfer decisions
generally do not implicate matters of public concern. See Connick v. Myers,
461 U.S. 138, 148–49 (1983) (holding that a public employee’s questionnaire
drafted in connection with a transfer decision did not address a matter of
public concern because “the questionnaire, if released to the public, would
convey no information at all other than the fact that a single employee [wa]s
upset with the status quo”). Similarly, we have held that a police officer’s
public social media posts expressing displeasure with a police chief’s decision
not to send a representative to the funeral of an officer did not implicate a
matter of public concern. Graziosi v. City of Greenville, 775 F.3d 731, 738–40
(5th Cir. 2015).
1

In this case, Dunbar’s post did not address a matter of public concern.
As evidenced by it being posted in a private group for HFD firefighters,
Dunbar’s comment on potential transferees’ applications to a particular
HFD district was relevant only to HFD employees who might have been
considering such a transfer, not to the public generally. See Connick, 461 U.S.
at 148–49; Graziosi, 775 F.3d at 738–40. Although the post’s “subject matter
could, in different circumstances, have been the topic of a communication to
the public that might be of general interest,” it was not under these
circumstances. Connick, 461 U.S. at 148 n.8. Indeed, Dunbar did not assert
that he was speaking on a matter of public concern in his complaint or brief.

1
Although the posts were made on a public social media page, they primarily
concerned dissatisfaction with internal department decision-making and were therefore
unprotected. Graziosi, 775 F.3d at 739.
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Accordingly, Dunbar cannot sustain a First Amendment claim against Garcia
and Peña for their response to his post.
For similar reasons, Dunbar’s broader challenge to the
constitutionality of the HFD transfer guidelines also fails. A public employer
like HFD can adopt policies restricting its employees from speaking on issues
that are not of public concern so long as those policies do not unduly restrict
other, protected speech. See, e.g., Commc’ns Workers of Am. v. Ector Cty.
Hosp. Dist., 467 F.3d 427, 437–39 (5th Cir. 2006) (en banc) (concluding that
a public employer’s policy prohibiting the adornment of hospital uniforms
did not violate hospital workers’ First Amendment rights in large part
because the policy primarily limited speech on matters not of public
concern). On their face, the transfer guidelines here prohibit only employee-
to-employee communications that influence potential transferees’
applications to vacant positions. See Connick, 461 U.S. at 153. Dunbar does
not argue that HFD’s transfer guidelines prohibit HFD employees from
commenting on any public-facing aspects of HFD transfers, such as transfers
made to hide corruption within HFD. Because Dunbar has not plausibly
alleged that the transfer guidelines prohibit HFD employees from speaking
on matters of public concern, the district court properly dismissed Dunbar’s
facial challenge to the constitutionality of the transfer guidelines.
In sum, Dunbar failed to state a claim against Garcia and Peña, he was
not entitled to declaratory or injunctive relief, and the district court properly
dismissed his complaint.
2

AFFIRMED.

2
We reject Dunbar’s argument that an arbitration ruling in another case involving
a different plaintiff barred HFD from transferring or suspending him for his private social
media post. Dunbar offers no reason why that arbitration ruling precludes HFD from
sanctioning him for violating the transfer guidelines.
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