Submitted March 12, 2015
Appeal from United States District Court for the Eastern District of Missouri - St. Louis.
For Stevon Anzaldua, Plaintiff - Appellant: Brandy B. Barth, Newton & Wright, Saint Louis, MO; Lynette Marie Petruska, Pleban & Petruska, Saint Louis, MO.
For Northeast Ambulance and Fire Protection District, Derek Mays, in his individual capacity, Robert Lee, in his individual capacity, Quentin Randolph, in his individual and offical capacity as the Northeast Ambulance and Fire Protection District Fire Chief, Kenneth Farwell, in his individual and official capacity as the Northeast Ambulance and Fire Protection District Battalion Cheif, Defendants - Appellees: Gregg M. Lemley, Erin E. Williams, Ogletree & Deakins, Saint Louis, MO.
Before MURPHY and SHEPHERD, Circuit Judges, and HARPOOL, District Judge.
SHEPHERD, Circuit Judge.
Stevon Anzaldua worked for the Northeast Ambulance and Fire Protection District (" Fire District" ) as a full-time paramedic and firefighter. After the Fire District suspended Anzaldua for purportedly failing to respond to a directive issued by Chief Kenneth Farwell, Anzaldua emailed a newspaper reporter expressing concerns about the Fire District and about Chief Farwell in particular. The email " shocked" and " angered" many of Anzaldua's co-workers. Two battalion chiefs noted it " fostered division between Anzaldua and his co-workers, and between the District firefighters and [Chief] Farwell." As a result, the Fire District terminated Anzaldua.
Anzaldua brought this action in federal district court, alleging that the Fire District and the individuals involved in his termination violated his First Amendment right to free speech by retaliating against him for emailing the reporter and that Chief Farwell and Anzaldua's ex-girlfriend violated federal and state computer privacy laws by accessing his email account and obtaining his emails. The defendants moved to dismiss Anzaldua's complaint under Federal Rule of Civil Procedure 12(b)(6). The district court denied the motion in part and granted the motion in part, allowing some of Anzaldua's First Amendment claims to proceed but dismissing all his other claims with prejudice. The district court subsequently denied Anzaldua leave to amend his computer privacy law claims. The remaining defendants then moved for summary judgment on the basis of qualified immunity. Anzaldua moved to defer ruling on summary judgment or to grant additional time to conduct discovery. The district court denied the motion to defer and then granted summary judgment to the defendants on Anzaldua's First Amendment claims. Anzaldua now appeals.
After careful review, we affirm the district court's grant of summary judgment to the defendants on Anzaldua's First Amendment claims. We also affirm the denial of leave to amend Anzaldua's federal computer privacy law claims. We reverse the district court's denial of leave to amend Anzaldua's state computer privacy law claims.
Anzaldua began working for the Fire District as a part-time paramedic in 2008. In April 2011, he accepted a position as a full-time paramedic and firefighter. Following standard practice established in its collective bargaining agreement with the firefighters union (" Fire District CBA" ), the Fire District subjected Anzaldua to a one-year probationary period. In April 2012, before the probationary period expired, Chief Farwell issued Anzaldua a written reprimand for neglect of equipment and neglect of property after the Fire District found a hole in the interior wall of an ambulance Anzaldua had worked in. Anzaldua signed the reprimand but denied responsibility for the hole and stated he disagreed with the disciplinary action. In conjunction with the reprimand, the Fire District extended Anzaldua's probationary period six months for " professional misconduct and general behavior." J.A. 243. It also warned him that " [a]ny further reprimands, verbal or written, or any conduct of disciplinary action will subject you to immediate termination." J.A. 243. The Fire District CBA permitted the Fire District to terminate probationary employees with or without cause.
On July 21, 2012, a Fire District lieutenant wrote Chief Farwell a memorandum stating that Anzaldua and his partner had responded to a call but that their report for the call was inexplicably missing from the Fire District's reporting system. The lieutenant copied Anzaldua on the memorandum. The Fire District suspended Anzaldua's partner, who was responsible for filing the report, but did not discipline Anzaldua.
On July 24, 2012, Anzaldua drafted an email on his personal Gmail account to Dr. David Tan, a university professor who provided medical oversight for the Fire District but was not employed by the Fire District or within its chain of command. The email stated, in pertinent part, " I am making you aware that there are some major issues with the EMS side of operations. In starting, not everyone in this department is operating under the same rules." J.A. 246. Anzaldua claims he saved the email as a draft but never sent it.
Nevertheless, the email was sent from Anzaldua's Gmail account to Dr. Tan on July 24, 2012. A week later, on July 31, 2012, a copy of the Dr. Tan email was forwarded from Anzaldua's Gmail account to Chief Farwell. After learning of the email, Fire Chief Quinten Randolph directed Chief Farwell to investigate Anzaldua's concerns. On July 31, 2012, Chief Farwell sent an email to Anzaldua's Gmail account stating he was " concerned and obligated to inquire and investigate your concerns," and ordering Anzaldua to " provide for me in writing the Where, When, How, What, and Who of your concerns by the end of the day on Aug 2, 2012." J.A. 245. Anzaldua did not provide Chief Farwell the requested information. Anzaldua maintains this is because he never received Chief Farwell's email.
On August 7, 2012, the Fire District Board of Directors ordered Anzaldua to appear at a disciplinary hearing on August 13, 2012. The Board explained:
On July 24, 2012, you forwarded an email to Dr. David K. Tan suggesting that " major issues" existed within the District's EMS Division. You went on to suggest that the District was engaging in " rule" bending for certain employees. Dr. Tan is not within your department chain of command and he does not handle interdepartmental grievances. Your public statements therefore appear to be divisive, inflammatory, and without merit. When provided an opportunity by [Chief Farwell] to elaborate on your statements, you failed to do so within the time allotted. Such failure strengthened the belief that your statements were intentionally perverse and improperly motivated. Such behavior, if deemed true, is a direct violation of the District's code of conduct. The Board is hereby providing you an opportunity to be heard on this matter before deciding whether disciplinary action is warranted.
J.A. 249-50. Though the Fire District CBA did not provide probationary employees a right to union representation at disciplinary hearings, the Board advised Anzaldua he would be allowed union representation if he desired, and Anzaldua accepted the assistance of EMS Lieutenant and Shop Steward Jennifer Barbarotto.
At the disciplinary hearing, Anzaldua explained to the Board that he did not respond to Chief Farwell's directive because he never received Chief Farwell's email. He told the Board that command staff typically issued directives through the Fire District's separate email system. He also explained the concerns he expressed in the Dr. Tan email. However, the Board told Anzaldua the disciplinary hearing would focus on his failure to respond to Chief Farwell's directive, and not on his underlying concerns. On August 20, 2012, the Board found Anzaldua " failed to respond to a directive issued by a chief officer," a failure it deemed " unacceptable," and unanimously voted to suspend Anzaldua for 10 days for conduct unbecoming of a Fire District employee. J.A. 253. The union agreed with the suspension. The Fire District also warned Anzaldua " that any future misconduct, without regard to the severity, will result in your immediate termination." J.A. 254.
On August 23, 2012, Anzaldua sent an email to Elizabethe Holland, a reporter for the St. Louis Post-Dispatch. The email stated:
You have covered the Northeast Ambulance and Fire protection district before on a variety of issues. I am currently employed there as a Full-Time Firefighter/Paramedic. I am coming to you hoping to remain anonymous. There are several issues that are new. Some pertain to pension issues. Others pertain to public safety. I have tried to reach out to the directors only to be disciplined for 10 days for an email sent to the medical director with critical concerns regarding the service we provide citizens as it pertains to medical emergencies. Any time a stand is taken on this issue it leads to something punitive in the form of suspension or termination. I have been employed there for almost 4 years now we have new problems.
We have been shutting down Pumpers (Fire Apparatus) due to staffing mishaps (Resulting from the CMO). We have SCBA's (Self-contained Breathing Apparatus) that are not compliant with NFPA (National Fire Protection Association) 1971. This is a guideline to safe practices, policies and equipment. We are told on the floor (The workers actually responding to the calls) that we do not have the money. We have 6-7 WORKING SCBA's right now in the department. This is after 2 new Chevy Suburbans were purchased for command staff. The vehicles totaled somewhere around 100000.00 after the addition of things like Light-Bars and Sirens were added. One of these Command vehicles is Administrative (Chiefs Vehicle). The other vehicle is used on shift and DOES respond to calls and assumes command. This is a " Working" vehicle. There was nothing wrong with the Chief's vehicle prior to this. In fact, That old Chief's is now the " Triage" vehicle equipped with ALS (Advanced Life Support) equipment which is staffed by the Chief Medical Officer running at 4707 (Call sign). This vehicle is " suppose" to respond to calls during the CMO's duty hours. If you call North Central dispatch (314-428-1133) you can actually get the numbers of 4707 (Command Vehicle) responses. This point is simple. The safety of the men is secondary to command vehicles. We are already understaffed and short on working SCBA's which are not NFPA Sec. 1971 compliant which means the district assumes legal liability if any Death/Disability occurs as a result of a structure fire/Fire. This is a safety issue to ALL of my Peers on the floor. These Vehicles somehow managed to be a priority over our safety.
I would like to address the issue of the Chief Medical Officer and his vehicle. The vehicle leaves the district (Normandy) everyday with him to go home (O'Fallon 30 miles away). This vehicle does NOT respond to calls when he is gone. The numbers will show that. This Vehicle has actually been parked outside of his bar. I have multiple photo's time-stamped and dated of the vehicle parked behind his bar (Da Elite Bar/Grill). This District vehicle was being used for personal business conducted at a bar with Tax-Payer gas. IT has since been parked in the back of the firehouse. The CMO (Chief Medical Officer) deals with the EMS (Emergency Medical Services) or Ambulance side of operations. He has been sending out text discussing his bar specials via district telephone. As of August 22nd, The DEA has pulled our controlled substances because the CMO Failed to renew the license for these substances. Now we have a PUBLIC safety issue. This affects the people we serve as well as the Paramedics ability stabilize medical emergencies such as seizures. No pain meds for Chest pain or fractures prior to immobilization of the injury.
So you may ask why I come to you with this. I was recently suspended for 10 days as a result of an email I was going to send Medical Director (This is a Doctor) discussing supply issues. The CMO was made aware of this email and put me in front of the board charged with conduct unbecoming. He also charged me with breaking the chain of command. I am currently serving my suspension. They (CMO and a Bat. Chief) have extended my probation and written me up and tried to fire me 3 times. They can do this because I am still currently on probation and not entitled to union legal counsel or representation even though I am a member. I have been a Paramedic going on 13 years. I have been in the field for 15 years total. They have circumvented my shift supervisor and gone directly to disciplinary action. My Shift supervisors have saved my job. I love my job and Co-workers. I figure if I get terminated and these problems get fixed to provide a better safer service to the people and the firefighter/paramedics...then it was worth it. I would prefer for this to stay confidential. There is more to this if you have any additional questions please reply if you see this as something you could help change[.]
After Anzaldua sent the email to Holland, a copy of the email was forwarded from Anzaldua's Gmail account to Chief Farwell. The email was subsequently passed around the Fire District, although the record does not make clear by whom. Several Fire District employees reported their negative reactions to the Holland email. Lieutenant Barbarotto " was shocked both by the content of the email, which contained numerous false statements, and that [Anzaldua] would send such an email." J.A. 259. She stated " Anzaldua's decision to send such an email angered many of his co-workers, as we were concerned that it would make us a public laughing stock. We knew he had written it for personal reasons and considered it to be a slap in the face to the rest of us, and were troubled that he would put his own personal agenda above the other firefighters in the District." J.A. 259. Daniel Newberry, a battalion chief, explained " [t]he email shocked and irritated many firefighters in the District (several of whom expressed this sentiment in my presence) and fostered division between Anzaldua and his co-workers, and between the District firefighters and [Chief] Farwell." J.A. 262. Philip Boling, another battalion chief, observed an identical reaction to the Holland email. J.A. 266.
On September 13, 2012, the Board ordered Anzaldua to appear at a disciplinary hearing scheduled for September 24, 2012. It explained:
On August 23, 2012, it is believed that you circulated a personal email publicly defaming and denigrating the District. More significant is the fact that it contained false and misleading statements. Such statements appeared to be intentionally divisive, inflammatory, and without just cause. It is believed that such statements were also purposefully perverse and improperly ...