161 F.3d 1290 (11th Cir. 1998), 97-2952, Gonzalez v. Lee County Housing Authority

Docket Nº:97-2952.
Citation:161 F.3d 1290
Party Name:Luz GONZALEZ, Plaintiff-Appellee, v. LEE COUNTY HOUSING AUTHORITY, Defendant, Patricia Moran, individually and in her official capacity as Executive Director of the Lee County Housing Authority, Defendant-Appellant.
Case Date:December 02, 1998
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 1290

161 F.3d 1290 (11th Cir. 1998)

Luz GONZALEZ, Plaintiff-Appellee,

v.

LEE COUNTY HOUSING AUTHORITY, Defendant,

Patricia Moran, individually and in her official capacity as

Executive Director of the Lee County Housing

Authority, Defendant-Appellant.

No. 97-2952.

United States Court of Appeals, Eleventh Circuit

December 2, 1998

Page 1291

Gregory W. Hootman, Sarasota, FL, for Defendant-Appellant.

Christine Elizabeth Larson, Florida Rural Legal Services, Cathy L. Lucrezi, Fort Myers, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before HATCHETT, Chief Judge, BLACK, Circuit Judge, and KRAVITCH, Senior Circuit Judge.

KRAVITCH, Senior Circuit Judge:

After being fired from her job at the Lee County Housing Authority ("LCHA"), Luz

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Gonzalez ("Gonzalez") brought suit against the LCHA and against Patricia Moran ("Moran"), the LCHA Executive Director, in her individual and official capacities, pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 3617, a provision of the Fair Housing Act, 42 U.S.C. §§ 3601-3619, 3631. Moran moved for summary judgment in her individual capacity on the basis of qualified immunity. The district court denied this motion, and Moran filed an interlocutory appeal. 1

We reverse the district court's judgment as to Gonzalez's First Amendment claim brought under 42 U.S.C. § 1983. Even viewing the evidence in the light most favorable to Gonzalez, a reasonable person in Moran's position would not have known that Gonzalez's letter of September 28, 1995, constituted speech on a matter of public concern. See infra Part III. On the other hand, we affirm the district court's judgment as to Gonzalez's claim brought under 42 U.S.C. § 3617. Viewing the evidence in the light most favorable to Gonzalez, a reasonable person in Moran's position would have known that her termination of Gonzalez's employment was unlawful. See infra Part IV.

I.

The record, for purposes of summary judgment, reveals the following: Gonzalez worked for the LCHA from October 1993 to October 1995. She began as an Administrative Clerk and assumed the position of Property Manager in May 1995. Her duties as Property Manager included overseeing the day-to-day operations of the Low Income Housing Program and the Rural Community Economic Development Rural Housing Program. At all times, she worked under Moran.

According to Gonzalez, Moran directed her to engage in certain actions that, in Gonzalez's view, violated the anti-discrimination laws that apply to public housing programs. 2 For example, Moran complained when Gonzalez attempted to place a white woman with a black child in a vacant apartment, and Moran told Gonzalez that she did not want a black person placed in a vacant elderly housing unit. 3 Moran's efforts to force Gonzalez to discriminate were a central cause of the arguments that arose between Gonzalez and Moran. 4 Finally, during August and September 1995, Gonzalez "confront[ed]" Moran about the fact that Moran wanted Gonzalez to take certain actions that violated the rules and regulations of the U.S. Department of Housing and Urban Development ("HUD"). 5 These confrontations concerned, inter alia, Moran's desire to discriminate against specific potential tenants: two white women with black children and an elderly black man. 6

On September 20, 1995, Moran called Gonzalez into Moran's office and criticized Gonzalez

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for failing to fill apartment vacancies at the LCHA during the prior two months. 7 An argument ensued, in which Gonzalez raised her voice. 8 On September 21, Moran presented Gonzalez with a letter that stated in part: "This is to advise you that under no circumstance will I ever again tolerate your violent outburst of yesterday.... [I]f anything like that occurs again you will be terminated immediately." 9 Gonzalez refused to sign the letter.

According to Gonzalez's complaint, Gonzalez called a member of the LCHA Board of Commissioners (the "LCHA Board") on September 27 to complain about, inter alia, discriminatory rental practices at the LCHA. 10 On the same day, Gonzalez phoned an employee at the HUD office in Jacksonville, Florida, to lodge the same complaint. 11 Gonzalez also called the Chairman of the LCHA Board, James Puccio ("Puccio"), to report the alleged discrimination. 12 Gonzalez does not claim that Moran knew about these phone calls.

On September 28, Gonzalez wrote Moran a four-page letter, reproduced as Appendix A, infra. In the letter, Gonzalez complained about various aspects of Moran's management, including Moran's discriminatory directives, and stated that Moran's efforts to force Gonzalez to discriminate were a central cause of the arguments between them. 13

On October 2, Moran fired Gonzalez. In the termination letter given to Gonzalez, Moran stated that Gonzalez had exhibited "offensive or antagonistic conduct toward superiors, fellow employees, or the public; criticism of orders, rules and policies, or conduct interfering with proper cooperation of employees, or which impairs the efficiency of the Authority." 14

On October 4, according to Gonzalez's affidavit testimony, she and other LCHA employees met with Puccio to discuss "problems [they] saw at the housing authority and with the practices of Ms. Moran." 15 On October 9, Gonzalez sent a letter to Puccio in which she requested that the LCHA Board review her termination. 16 The LCHA Board did not reverse Moran's decision.

Gonzalez then filed suit against the LCHA and against Moran in her official and individual capacities. Gonzalez claimed that Moran, in her individual capacity, violated: (1) Gonzalez's First Amendment rights by terminating Gonzalez's employment in retaliation for her "objections and complaints about the operations of the Defendants," giving rise to a claim under 42 U.S.C. § 1983; 17 and (2) 42 U.S.C. § 3617 by terminating Gonzalez's employment in retaliation for her "complaints and refusal to participate in the discriminatory rental practices of the Defendants." 18

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Moran moved for summary judgment in her individual capacity on both claims. The district court, without elaboration, ruled that "issues of material fact" precluded the court from granting summary judgment in Moran's favor. 19 Moran appeals the district court's denial of that motion.

II.

A.

This court lacks interlocutory jurisdiction to review a district court's denial of summary judgment where the moving party appeals based solely on the argument that the district court erred in evaluating evidentiary sufficiency. See Cottrell v. Caldwell, 85 F.3d 1480, 1484 (11th Cir.1996) (citing Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 2156, 132 L.Ed.2d 238 (1995)). We do have interlocutory jurisdiction to review the denial of summary judgment in qualified immunity cases, however, where our review requires a determination of the clearly established law that existed at the time of the allegedly unlawful acts. See Cottrell, 85 F.3d at 1484 (citing Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985)). In the latter case, we have jurisdiction even if the district court, as it did here, simply ruled that "issues of material fact" precluded summary judgment. See Cottrell, 85 F.3d at 1484-85 (citing Behrens v. Pelletier, 516 U.S. 299, 304, 116 S.Ct. 834, 838, 133 L.Ed.2d 773 (1996)).

B.

We review de novo the district court's denial of a defendant's summary judgment motion that is based on the affirmative defense of qualified immunity. See Walker v. Schwalbe, 112 F.3d 1127, 1130 (11th Cir.1997), cert. denied, --- U.S. ----, 118 S.Ct. 1794, 140 L.Ed.2d 935 (1998). In exercising interlocutory jurisdiction in such cases, we have the discretion to accept the district court's findings of fact, if they are adequate. See Cottrell, 85 F.3d 1480, 1486. Where, as here, the district court has made no specific findings of fact, we must make such findings ourselves after full review of the record.

A party seeking summary judgment must demonstrate that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of informing the court of the basis for its motion and of identifying those materials that demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). When the non-moving party bears the burden of proof on an issue at trial, the moving party need not "support its motion with affidavits or other similar material negating the opponent's claim," id. at 323, 106 S.Ct. at 2553, in order to discharge this initial responsibility. Instead, the moving party simply may " 'show[ ]'--that is, point[ ] out to the district court--that there is an absence of evidence to support the nonmoving party's case." Id. at 325, 106 S.Ct. at 2554 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S.Ct. 1598, 1609, 26 L.Ed.2d 142 (1970)).

In response to a properly supported motion for summary judgment, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). If the non-moving party fails to "make a sufficient showing on an essential element of her case with respect to which she has the burden of proof," then the court must enter summary judgment for the moving party. See Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. In determining whether genuine issues of material fact exist, we resolve all ambiguities and draw all justifiable inferences in favor of the non-moving party. See...

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