Rice-Lamar v. City of Fort Lauderdale

• Decision Date: 17 September 2003
• Docket Number: No. 4D01-1934.,4D01-1934.
• Citation: 853 So.2d 1125
• Parties: Deborah RICE-LAMAR, Appellant, v. CITY OF FORT LAUDERDALE, a municipality, Appellee.
• Court: Florida District Court of Appeals

853 So.2d 1125

Deborah RICE-LAMAR, Appellant, v. CITY OF FORT LAUDERDALE, a municipality, Appellee.

No. 4D01-1934.

District Court of Appeal of Florida, Fourth District.

September 17, 2003.

Reginald J. Clyne and Donnise A. Desouza of Clyne & Self, P.A., Coral Gables, for appellant.

Gordon D. Rogers and Kelly Cheary Sulzberger of Muller Mintz, P.A., Miami, for appellee.

ON MOTION FOR REHEARING AND/OR CLARIFICATION

SHAHOOD, J.

We deny appellee's motion for rehearing and grant the motion for clarification. We withdraw our previously issued opinion and substitute the following in its place.

This appeal arises from an action by Deborah Rice-Lamar (Lamar) against the City of Fort Lauderdale (City) pursuant to the Florida Whistleblower Act, section 112.3187, Florida Statutes (Supp.1996). Lamar alleged that she was fired from her position as the City's Affirmative Action Specialist because she attempted to express her opinion regarding the City's alleged discriminatory practices in the City's official affirmative action report to the City Commission. The trial court entered final summary judgment against Lamar and in favor of the City, based on collateral estoppel. Following the denial of her motion for reconsideration, she filed this appeal raising four issues.

This state-court action follows a prior action brought by Lamar against the City and her former supervisors in federal court. In that action, Lamar sought damages for violations of Title VII of the Civil Rights Act of 1964, as amended in 42 U.S.C. § 2000e, et. seq., 42 U.S.C. §§ 1981, 1983 and 1985, the First and Fourteenth Amendments to the United States Constitution, and various state claims, including a whistleblower claim pursuant to the Florida Whistleblower Act, section 112.3187, Florida Statutes (Supp. 1996). See Rice-Lamar v. City of Fort Lauderdale (Lamar I), 54 F.Supp.2d 1137, 1140 (S.D.Fla.1998),

affirmed, Rice-Lamar v. City of Fort Lauderdale (Lamar II), 232 F.3d 836, 838 (11th Cir.2000). The facts and circumstances leading up to these two actions, many of which are set forth in the opinions of the federal district and circuit courts, are the following.

Facts

Lamar is an African-American female who was employed by the City as its Affirmative Action Specialist from June 20, 1988 through October 21, 1996. She was responsible for planning, directing and implementing a variety of internal equal employment opportunity and affirmative action programs within established policies and guidelines and recommending new policies and procedures. In addition, she was to advise departmental and personnel officials, as well as the City Manager, on potential Equal Employment Opportunity (EEO) liabilities, recommend strategies for achieving long-term affirmative action goals, and prepare annual affirmative action reports. Her work was to be reviewed by an administrative supervisor through conferences, periodic reports and observations of results achieved. Her supervisors were the City Manager, George Hanbury ("Hanbury"), the Assistant City Manager, Pete Witschen ("Witschen"), the Director of Administrative Services, Bruce Larkin ("Larkin"), and the Director of Personnel, John Panoch ("Panoch"). Her direct supervisor was Panoch.

Prior to January 1995, Lamar's employment record was unblemished and her performance was considered to be "above average." See Lamar I, 54 F.Supp.2d at 1140. Sometime during 1995, she prepared the City's official 1995 Affirmative Action Report which indicated that the City needed to take a new direction to end the systemic discrimination within the City government. See id. The report contained Lamar's own personal commentary and conclusions concerning the situation at the City. See id. According to Lamar, she was instructed by her supervisors to publish only the statistical numbers which, she claimed, concealed the City's discriminatory practices. See id.

On January 19, 1995, Lamar received a written reprimand from Panoch for, among other things, (1) failure to complete the 1995 Affirmative Action Report by the due date of December 2, 1994 and (2) failure to complete the Minority/Women's Business Enterprise Directory ("MBE/WBE Directory") for the City Commission, which was due December 22, 1994. Lamar was given until January 31, 1995 to complete both projects and later received a one-day suspension for failure to meet the second deadline. See id. Lamar did not appeal this disciplinary action. See id.

The deadline was revised a second time and extended to March 1995. Again, Lamar failed to meet the deadline. When she forwarded her final draft, in March 1995, the report still contained her personal narrative (regarding the correlation between high crime rate in the inner city and the failure to hire a sufficient number of police officers), which she had been directed to remove. A five-day suspension was recommended. Lamar appealed the recommendation, and the suspension was reduced to four days. She did not appeal this disciplinary action. See id. at 1140.

In February 1996, a City employee, Clifton McCree (McCree) shot several co-workers and committed suicide. He left a suicide note stating that his attack was to punish his former co-workers for the unfair and racist treatment he received. As a result of the shootings, the City hired Crisis Management International, Inc., to provide psychological services. During this time period, various meetings were held, which related to the shooting incident. Lamar was excluded from these meetings. In e-mails to Panoch, she took issue with the crisis management team's conclusion that racism did not appear to be an issue amongst the African-American employees interviewed following the fallout from the shooting. Lamar believed that the City was suppressing or denying the issue. Panoch advised Lamar that they would wait and see if the team advised them that racism was an issue, but, at that time, there was no evidence to support Lamar's personal views on the matter. Larkin, the Director of Administrative Services expressed displeasure at the fact that Lamar never completed her report for the last fiscal year and requested that she spend her time completing her specific assignments. Lamar was eventually told that it would be insubordination for her to speak to anyone without first directing her statements through Panoch and Larkin, her other immediate supervisor. See id.

On June 19, 1996, Lamar presented the 1996 Affirmative Action Report at the department head meeting. As with the 1995 Report, Lamar included her own commentary and conclusions in the Report. She commented, "we are still a City plagued with racism, glass ceilings for women and brick walls for people of color, a tolerance for the perceptions of unfairness and a proverbial silence about it all." See id. Lamar continued, "[h]owever, differences must first be acknowledged before either tolerated or valued. Recommendations on the City's diversity initiative are forthcoming; however, I will take this opportunity to foretell that they will acknowledge our need to address some basic problems of `ism' while moving toward an environment which values diversity and manages diversity for the betterment of all." Lamar II,232 F.3d at 838.

All four of Lamar's supervisors expressed serious reservations about the content of the report and requested that she make various substantive changes before the report was delivered to the City Commission. See id. In particular, she was directed to remove the personal commentary and to draft a report which focused on the statistical data collected on minority and female representation in the City workplace. See id. Lamar refused to make most of the changes. See Lamar I, 54 F.Supp.2d at 1140; Lamar II, 232 F.3d at 838.

On July 22, 1996, Lamar delivered a revised copy of the 1996 report to Larkin and Panoch with a note that the report was ready for printing and distribution. On July 26, 1996, Larkin met with Lamar and offered her the opportunity to resign; she refused, stating that the report honestly and objectively outlined racial problems and tensions in the City. See Lamar II, 232 F.3d at 838. Three days later, Lamar distributed the revised version of the 1996 Affirmative Action Report, which had not yet been approved, to City Manager Hanbury and to all but one of the other department heads. She also distributed the MBE/WBE Directory. See Lamar I, 54 F.Supp.2d at 1141.

On August 5, 1996, Lamar responded to Larkin's request for her resignation, blaming the delay in producing the required reports on computer problems and also claiming that Larkin and Panoch were harassing her in an attempt to have her suppress her affirmative action analysis in her reports. See id. One week later, Lamar was notified of possible disciplinary action for incompetent performance based, among other things, on the delinquent and unauthorized distribution of the MBE/ WBE Directory and the unauthorized distribution of the revised 1996 Affirmative Action Report. The City Manager eventually approved the disciplinary action, which was to dismiss Lamar effective October 21, 1996.

Federal Court Proceedings

Approximately one year after she was terminated, Lamar filed a twelve-count federal action against the City and her former supervisors. See Lamar I, 54 F.Supp.2d at 1139. The essence of Lamar's complaint was that she was retaliated against for exercising her freedom of speech rights and was discriminated against based on race and gender when she attempted to express her personal opinion regarding the City's alleged discriminatory practices in the City's official 1995 Affirmative Action Report. See id. at 1140. The federal district court, sua sponte, declined to exercise its supplemental jurisdiction over the state claims and dismissed them, but the federal claims proceeded.¹

Afer discovery and the filing of a joint pretrial stipulation, the district court granted final summary judgment in favor of the City and the four...