Greenfield v. City of Miami Beach, Fla.

• Decision Date: 18 December 1992
• Docket Number: No. 91-2728-CIV.,91-2728-CIV.
• Parties: Natalie GREENFIELD, Plaintiff, v. CITY OF MIAMI BEACH, FLORIDA, a municipal corporation, Diane W. Camber, Ernie Barham, and Carla Talarico, Defendants.
• Court: U.S. District Court — Southern District of Florida

844 F. Supp. 1519

Natalie GREENFIELD, Plaintiff, v. CITY OF MIAMI BEACH, FLORIDA, a municipal corporation, Diane W. Camber, Ernie Barham, and Carla Talarico, Defendants.

No. 91-2728-CIV.

United States District Court, S.D. Florida.

November 10, 1992.

Order Denying Rehearing December 18, 1992.

COPYRIGHT MATERIAL OMITTED

David V. Kornreich, Muller, Mintz, Kornreich, Caldwell, Casey Crosland and Bramnick, P.A., Miami, FL, for defendants City of Miami Beach et al.

George Ware Cornell Jr., G. Ware Cornell Jr. P.A., Fort Lauderdale, FL, for plaintiff.

ORDER GRANTING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING AS MOOT DEFENDANTS' MOTION FOR CLARIFICATION AND REQUEST FOR ATTORNEY'S FEES

HIGHSMITH, District Judge.

THIS CAUSE comes before the Court upon Defendants City of Miami Beach, Diane W. Camber, Ernie Barham and Carla Talarico's Motion for Partial Summary Judgment as to Counts I, III, IV and V of the complaint, filed May 26, 1992.

INTRODUCTION

Plaintiff NATALIE GREENFIELD filed a five-count Amended Complaint against Defendants CITY OF MIAMI BEACH ("Miami Beach") and three city employees, DIANE W. CAMBER, the executive director of the Bass Museum of Art, ERNIE BARHAM, the personnel director of Miami Beach, and CARLA TALARICO, the acting City Manager of Miami Beach. Greenfield asserts that: (1) the defendants abridged her first amendment rights to freedom of speech and free exercise of religion, in violation of 42 U.S.C. § 1983; (2) that Miami Beach engaged in religious discrimination, in violation of Title VII of the Civil Rights Act of 1964, Florida's Human Rights Act of 1977, and 42 U.S.C. § 1983; and (3) that Miami Beach fired her in retaliation for her decision to file a charge of discrimination with the Equal Employment Opportunity Commission, in violation of Title VII. The EEOC retaliatory firing allegation is not challenged in the Defendants' Motion for Partial Summary Judgment and will not be addressed by the Court.

STANDARD OF REVIEW

In deciding a summary judgment motion, a court must apply the standard in Fed. R.Civ.P. 56(c):

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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.

In applying this standard the Eleventh Circuit has stated that:

The party seeking summary judgment bears the exacting burden of demonstrating that there is no genuine dispute as to any material fact in the case. In assessing whether the movant has met this burden, the courts should view the evidence and all favorable inferences therefrom in the light most favorable to the party opposing the motion. All reasonable doubts about the facts should be resolved in favor of the non-movant.

Clemons v. Dougherty County, Ga., 684 F.2d 1365, 1368-69 (11th Cir.1982) (citations omitted). Moreover, "the party opposing the motion for summary judgment bears the burden of responding only after the moving party has met its burden of coming forward with proof of the absence of any genuine issues of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986).

The United States Supreme Court has provided significant additional guidance as to the evidentiary standard which trial courts should apply in ruling on a motion for summary judgment:

The summary judgment standard mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict. Brady v. Southern R. Co., 320 U.S. 476, 479-480 64 S.Ct. 232, 234, 88 L.Ed. 239 (1943).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The Court in Anderson further stated that "the mere existence of a scintilla of evidence in support of the position will be insufficient; there must be evidence on which the jury could reasonably find for the non-movant." Id. at 252, 106 S.Ct. at 2512. The evidence presented cannot consist of conclusory allegations, legal conclusions or evidence which would be inadmissible at trial. Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). "If the evidence is merely colorable ... or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-251, 106 S.Ct. at 2510-11.

UNDISPUTED FACTS

On May 14, 1990, Greenfield became an employee of Miami Beach as a clerk/typist for the Bass Museum of Art ("Bass Museum"). She immediately notified her supervisors that she was a practicing Orthodox Jew, and requested accommodation of her working hours and daily schedule for the Jewish Sabbath and High Holidays. (Amended Complaint, D.E. # 10, at ¶ 10). Melissa Cloud, Greenfield's supervisor, assured her that she would not need to work on any Jewish holidays, and that "flex-time" work rules available to department employees would provide her with an opportunity to make up lost hours. (Joint Pretrial Stipulation, D.E. # 24, at 3). A short time before the 1990 Jewish high holy days of Yom Kippur and Rosh Hashannah, however, Greenfield's supervisor advised her that she was no longer eligible for "flex-time" because she had abused the privilege. Greenfield admits that she came into work early without prior approval, even though she had been warned that this behavior was unacceptable. Id. These self-adjustments to her schedule resulted in weeks where she worked less than the required hours without loss of pay, followed by weeks where she worked in excess of forty hours so that she could accumulate overtime payments. Id. She was also advised that she was only eligible for religious holiday pay to the extent of her accumulated leave time, including three sick-leave days. These changes placed Greenfield on the same footing as all Miami Beach employees. (Affidavit of Joseph R. Pinon, D.E. # 18, at ¶ 8).

In December, 1990, Greenfield held several conversations with Sue Miller, the president of Friends of the Bass Museum. On May 24, 1991, Greenfield held a single conversation with Joyce Kaiser, the incoming president of the Friends of the Bass Museum. Greenfield's conversations with Miller and Kaiser were prefaced with complaints about efficiency and waste in the development office of the Bass Museum. She proceeded, however, to complain about her personal job evaluations and to assert her qualifications for better positions.

Greenfield was also assigned additional work prior to the Jewish high holy day of Yom Kippur, after she requested that she be able to leave work at 1:00 p.m. (D.E. # 17, at 278). Greenfield stayed until 3:00 p.m. to finish the work, even though she was not expressly asked to finish the work that afternoon, and she was able to leave work in time to celebrate the holiday without breaking any Jewish laws. Id. In addition, Greenfield was reprimanded for engaging in a telephone conversation with her rabbi about a religious problem that arose in the office. (D.E. # 18, at p. 7-8). Greenfield never explained to her superiors why she called her Rabbi and became hysterical during the telephone call while sitting at the front desk of the development office. Id.

In Fall, 1990, Greenfield received an employee evaluation report rating her as "satisfactory," but she received low scores in the categories of employee relations and quality of work. (Exhibit I, D.E. # 33). Then, Greenfield filed a charge of employment discrimination with the EEOC on January 3, 1991. Immediately after filing this charge, Greenfield missed several days of work. (D.E. # 10, at ¶ 17). Upon Greenfield's return to work five days later, Camber, the museum's executive director, asked Barham, the city's personnel director, to suspend Greenfield. On March 20, 1991, Greenfield received a three-day suspension for the following reasons: (1) conduct unbecoming an employee of the city; (2) display of an antagonistic attitude towards superiors and fellow employees; and (3) violation of a lawful and reasonable regulation or order or failure to follow the order of a superior. (Disciplinary Action Notice, D.E. # 33). Greenfield filed a second charge of discrimination with the EEOC on May 26, 1991. On June 28, 1991, Greenfield was terminated.

I. Freedom of Speech Claim: Count V

The state may not demote or discharge a public employee in retaliation for speech protected under the first amendment. Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir.1989). A public employee's right to freedom of speech, however, is not absolute. Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). To determine whether a public employer has violated the first amendment, a court must balance the employee's interest "as a citizen, in commenting upon matters of public concern, and the interest of the state, as an employer, in promoting the efficiency of the public services it performs through its employees." Id. at 384, 107 S.Ct. at 2896-97 (citing Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968)).

The threshold question for the Court, therefore, is whether Greenfield's speech may be "fairly characterized as constituting speech on a matter of public concern." Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983); Schneider v. Indian River Community College Found., Inc., 875 F.2d 1537, 1542 (11th Cir.1989). This inquiry requires an evaluation of the content, form, and context of Greenfield's statements, as revealed by the entire record. Connick, 461 U.S. at 147-48, 103 S.Ct. at 1690. "If the employee's speech cannot fairly be characterized as constituting speech on a matter of public concern, the inquiry is at an end." Ferrara v. Mills, 781 F.2d 1508, 1512 (11th Cir.1986).

Greenfield relies on her...