Florida Record

Thursday, September 19, 2019

Appeals Court sides with Volusia County in termination of beach officer over Facebook posts

By David Hutton | Sep 27, 2017

A Volusia County Beach Safety officer has lost his appeal before the U.S. Court of Appeals for the 11th Circuit in an effort to keep his job after he was fired for racially charged comments he made on social media about Trayvon Martin.

Michael Todd Snipes appealed a decision from U.S. District Court for the Middle District of Florida to the U.S. Court of Appeals, which handed down its opinion on Aug. 21.

In the wake of his termination as a beach safety officer, Snipes filed the federal lawsuit in 2014, claiming violations of his First Amendment and other constitutional rights.

Former Volusia County Beach Safety Officer Michael Todd Snipes has lost an appeal of his termination.

Volusia County officials fired Snipes after he made several racially insensitive comments on his Facebook page and in a group text message.

The district court granted summary judgment for the county, and Snipes appealed.

Circuit Judges Frank M. Hull, R. Lanier Anderson and Charles R. Wilson heard the appeal.

The day after the Zimmerman verdict was announced, Snipes—in a comment he conceded was in reference to Martin—posted the following on his Facebook page: “Another thug gone! Pull up your pants and act respectful. Bye bye thug rip!”

On the same day, Snipes initiated a nine-person group text message, to which he sent a picture of Paula Deen with a racially charged comment. One of the members of that group text responded with a picture of Martin and the caption “Those skittles were to die for,” to which Snipes responded “Lol.”

Similarly, Snipes responded “LOL nice!” to a picture of the Zimmerman jury with Paula Deen’s head superimposed on their bodies.

Snipes ended the text thread by sending a picture of Martin and Zimmerman in which Zimmerman was depicted as an African-American and Martin was depicted as a Caucasian.

Snipes was not on duty when he made the Facebook post, but he was on duty when he sent each of the text messages. Three of the recipients of the text messages were fellow beach patrol employees.

Another of the recipients of Snipes’ text messages was a recent retiree from the Beach Patrol, who reported them to Snipes’ supervisor and subsequently provided copies of both the messages and the Facebook post to an internal affairs investigator.

Snipes’ Facebook post was provided to a local newspaper by an unidentified individual, which ran an article publishing its content.

After an internal investigation, Snipes was fired. He appealed his termination internally, seeking a review of the decision by a five-member board, which had recommended a lesser punishment.

The Volusia County Manager—acting within his authority— rejected that recommendation and upheld Snipes’ termination.

Citing Rankin v. McPherson, the appellate panel noted that as a rule, a “state employer can not retaliate against a state employee for engaging in speech constitutionally protected under the First Amendment.”

"However, in determining what speech is protected, our case law recognizes that 'the state has an interest as an employer in regulating the speech of its employees and attempts to balance the competing interests of the public employee and the state,'” according to the appellate judges' decision.

In arriving at their opinion, the judges focused on several key points, including whether Snipes’ speech was made as a citizen and whether it implicated a matter of public concern.

The appeals court then weighed Snipes’ First Amendment interests against the city’s interest in regulating his speech to promote the efficiency of the public services it performs through its employees.

Moreover the judges wrote that courts have “routinely afforded substantial deference to public employers when disciplining an employee whose speech threatens to disrupt the efficient functioning of either the employer in general or the employee’s department more specifically... We have held that 'a government’s legitimate interest in avoiding disruption does not require proof of actual disruption,'” the court wrote in the opinion.

The appeals court noted that the county met its burden.

Snipes argued on appeal, as he did before the district court, that the county did not receive any complaints or demands that he be fired and that no rallies or protests were actually held.

“Whether or not this is true, the county needed to demonstrate only a reasonable possibility that such disruptions would occur,” the court wrote.

Moreover, the appeals court also has held that maintaining the public’s confidence in local fire and rescue services is a compelling and legitimate government interest.

Lastly, the court also considered the context in which the comments by Snipes were made, noting it occurred at a time when racial tensions were already running high in the area.

The appeals court noted that the lower court concluded that Snipes’ comments were phrased in an inflammatory manner that was seemingly designed to increase those tensions.

Snipes maintained on appeal that the district court was wrong to “infer” such an intent from his statements, particularly at the summary judgment stage.

The appellate judges, however, maintain that Snipes should have been aware that racial tensions in the county were already high, that the Beach Patrol’s image had been severely damaged by an unrelated recent scandal and that public trust in the county was already low.

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U.S. Court of Appeals for the Eleventh Circuit