Gainer v. City of Winter Haven, Fla.

• Decision Date: 08 November 2000
• Docket Number: No. 8:00-CV-1098-T-17A.,8:00-CV-1098-T-17A.
• Citation: 134 F.Supp.2d 1295
• Parties: R. Brock GAINER and Marie F. Gainer, Plaintiffs, v. CITY OF WINTER HAVEN, FLORIDA, Defendant.
• Court: U.S. District Court — Middle District of Florida

Page 1295

134 F.Supp.2d 1295

R. Brock GAINER and Marie F. Gainer, Plaintiffs, v. CITY OF WINTER HAVEN, FLORIDA, Defendant.

No. 8:00-CV-1098-T-17A.

United States District Court, M.D. Florida, Tampa Division.

November 8, 2000.

COPYRIGHT MATERIAL OMITTED

Thomas J. Pilacek, Thomas J. Pilacek & Associates, Maitland, FL, for Plaintiffs.

Robert Joseph Antonello, Law Office of Robert J. Antonello, Winter Haven, FL, Donald T. Ryce, Hogg, Ryce & Hudson, Miami Beach, FL, for Defendant.

ORDER ON MOTION TO STRIKE AND ON MOTION TO DISMISS

KOVACHEVICH, District Judge.

This cause is before the Court on Defendant, City of Winter Haven's, Motion to Strike portions of Plaintiffs' Memorandum in Opposition to Defendant's Motion to Dismiss, (Dkt.14), Plaintiffs, R. Brock Gainer and Marie F. Gainer's, response thereto, (Dkt.17), Defendant's Motion to Dismiss, (Dkt.3), and Plaintiffs' response thereto, (Dkt.11).

I. Factual Background

Plaintiffs both reside within Polk County, Florida, and were both employed by Defendant. (Dkts.1, 7). Plaintiff, Brock Gainer, worked for Defendant within its Department of Leisure Services, and held the title of Ground Maintenance Supervisor. (Dkts.1, 7). Plaintiff, Brock Gainer, began his employment with Defendant on, or about, October 12, 1987, and was terminated from employment by Defendant on May 3, 2000. (Dkts.1, 7). Plaintiff, Marie Gainer, worked for Defendant within its Department of Leisure Services, and held the title of Assistant to the Director. (Dkts.1, 7). Plaintiff, Marie Gainer, began her employment with Defendant on, or about, October 6, 1975, and was terminated from employment by Defendant on May 3, 2000. (Dkts.1, 7). R. Carl Cheatham [hereinafter Cheatham] was employed by Defendant and held the appointed position of City Manager. (Dkts.1, 7). Robert G. Sheffield [hereinafter Sheffield] was employed by Defendant and held the position of Director of Defendant's Leisure Services Department. (Dkts.1, 7). Both Cheatham and Sheffield were initially named as parties in this action; however, this Court entered an order granting the dismissal of Cheatham and Sheffield, (Dkt.10), as named Defendants. (Dkt.12). This is an action arising under the First and Fourteenth Amendments to the United States Constitution, brought pursuant to 42 U.S.C. § 1983, as well as a Petition Seeking Issuance of a Writ of Certiorari under Rule 9.100 of the Florida Rules of Appellate Procedure. (Dkt.1).

Plaintiffs claim that, at all times during their respective employment careers with Defendant, Plaintiffs performed their duties in a competent and exemplary fashion, and also received very good performance evaluations and corresponding pay raises. (Dkt.1). Defendant denies these claims. (Dkt.7). Plaintiffs claim that all of the conduct complained of was committed under color of the laws of the State of Florida. (Dkt.1).

Plaintiffs were suspended with pay by Defendant on November 17, 1999, pending an investigation into Plaintiffs' alleged violations of Defendant's employment policies. (Dkt. 1, exhibits E and F). Defendant commenced an investigation into the possible misconduct committed by both Plaintiffs. (Dkt. 1, exhibits G and H). Sheffield sent letters to Plaintiffs individually, on January 31, 2000, informing Plaintiffs that they were being suspended without pay, pending final resolution of the alleged violations of Defendant's policies. (Dkt. 1, exhibits G and H).

Plaintiffs were each given an opportunity to respond to Defendant's letters, with respect to the charges asserted. Plaintiffs each individually responded to Defendant's allegations by letter, on February 9, 2000. (Dkt. 1, exhibits I and J). As a result, Plaintiffs each received letters from Sheffield, dated February 11, 2000, on behalf of Defendant, reiterating the continuation of their suspensions without pay, and also stating that Sheffield was recommending that Plaintiffs be terminated from employment with Defendant, and that Plaintiffs would be afforded a due process hearing after Defendant issued a formal complaint against Plaintiffs. (Dkt. 1, exhibits K and L).

Sheffield sent formal complaints to Plaintiffs, individually, on March 3, 2000, setting forth, with particularity, the policies that Plaintiffs respectively violated, and also stating that Plaintiffs were being recommended for termination pending the final decision of Cheatham, City Manager, at the due process hearing. (Dkt. 1, exhibits M and N). A due process hearing was conducted over the span of nine (9) days from March 30, 2000, through April 26, 2000. (Dkt.1). Plaintiffs were both terminated from employment with Defendant on May 3, 2000. (Dkt. 1, exhibits O and P).

Plaintiffs allege that they were involuntarily terminated by Defendant. (Dkt.1). Plaintiffs allege numerous reasons for their involuntary termination, including that:

(1) Sheffield had a mysterious dislike of Plaintiff, Brock Gainer;

(2) Sheffield was frequently absent from his office and designated that Plaintiff, Marie Gainer, be in charge of the Leisure Services Department, despite Plaintiff, Marie Gainer's, insistence that she did not want to be used as an intermediary for directives given from Sheffield to Plaintiff, Brock Gainer, because she was aware of Defendant's nepotism policy;

(3) Sheffield insisted on continuing to send messages, memoranda, and other directives directed at Plaintiff, Brock Gainer, to Plaintiff, Marie Gainer;

(4) Sheffield harbored animosity towards Plaintiff, Brock Gainer;

(5) Sheffield showed favoritism to other employees;

(6) Sheffield made promises to Plaintiffs and never fulfilled them;

(7) Plaintiff, Marie Gainer, assisted with Plaintiff, Brock Gainer's, weekly reports for his crew, and that another employee also handled the payroll issues for her husband without any repercussions;

(8) Defendant's attorney never took affirmative steps to meet with Plaintiffs to address the alleged concerns that Defendant had with Plaintiffs' job performance;

(9) Plaintiffs were never informed of the charges or given specific examples of violations until January 31, 2000, when Plaintiffs were notified they were being suspended without pay;

(10) Plaintiffs were never given written reprimands, nor were Plaintiffs asked to sign any acknowledgement of perceived wrongdoing prior to their respective suspensions with pay on November 17, 1999;

(11) Plaintiff, Marie Gainer, was not aware that Plaintiff, Brock Gainer, used Defendant's vehicle for personal use, in violation of Cheatham's order that the vehicle only be used at work;

(12) Sheffield falsely presumed that Plaintiffs were the source of the information provided to the news media, regarding his illegal storage of his personal boat on Defendant's property, an action for which Sheffield received a written reprimand;

(13) Sheffield told Plaintiff, Brock Gainer, that he would not be disciplined, even though Plaintiff's crew was not properly recording their time on their time cards;

(14) Plaintiffs were not given prior notice of their suspensions with pay, and were also not provided reasons, or explanations, for Defendant's decision to suspend their employment;

(15) Sheffield sought to terminate Plaintiffs' employment immediately after Sheffield had been reprimanded for the illegal storage of his boat on Defendant's property;

(16) Plaintiffs were only given seven (7) days to respond to the charges in the letters dated January 31, 2000;

(17) Prior to the due process hearing, Sheffield distributed copies of the formal allegations against Plaintiffs to other employees within the Department of Leisure Services;

(18) Cheatham, who made the final decision as to Plaintiffs' terminations during the due process hearing, was prejudiced against Plaintiffs, and upheld Sheffield's recommendations as to their terminations because Cheatham hired Sheffield;

(19) There was a pattern of abuses by Defendant, within the Department of Leisure Services;

(20) Defendant's reasons for terminating Plaintiffs' employment were false and not supported by competent or substantial evidence;

(21) The due process hearing was a sham, and the decision to terminate Plaintiffs had already been made prior to the due process hearing; and

(22) Defendant's false reasons for Plaintiffs' terminations were a pretext for the real reason to silence and retaliate against Plaintiffs, and to deprive them of their constitutionally protected right to free speech and procedural due process. (Dkt.1).

Defendant, in turn, alleges that, as a result of a pattern and practice of Plaintiffs' continuous violations of Defendant's policies, Plaintiffs were terminated for cause. (Dkt. 1, exhibits O and P). In support of this contention, Defendant argues that:

(1) Plaintiff, Brock Gainer, violated the following policies and procedures:

(a) § 2.01(B) and (E), Standards of Conduct;

(b) § 2.12, Use of City Property;

(c) § 4.15(D)(8), discourtesy to persons while in performance of duties;

(d) § 4.15(D)(16), failure to comply with departmental rules or standards of conduct;

(e) § 4.19(3), threatening, intimidating, coercing, or interfering with fellow employees or supervisors, including use of abusive language.

(f) § 4.19(9), unauthorized modification of time sheets; and

(g) § 4.19(10), insubordination or refusal to comply with instructions of a supervisor. (Dkt. 1, exhibit O).

(2) Plaintiff, Marie Gainer, violated the following policies and procedures:

(a) § 2.01(B) and (E), Standards of Conduct;

(b) § 2.12, Use of City Property;

(c) § 4.15(D)(2), leaving assigned work area during working hours without permission;

(d) § 4.15(D)(4), productivity or workmanship not up to required standards;

(e) § 4.15(D)(8), discourtesy to persons while in performance of duties;

(f) § 4.15(D)(16), failure to comply with departmental rules or standards of conduct;

(g) § 4.19(3), threatening, intimidating, coercing, or interfering with fellow employees or supervisors, including use of abusive...