Martinez v. City of Opa-Locka, Fla.

• Decision Date: 10 September 1992
• Docket Number: OPA-LOCK,A,No. 90-6057,FLORID,90-6057
• Citation: 971 F.2d 708
• Parties: Melanie MARTINEZ, Plaintiff-Appellant, Cross-Appellee, v. The CITY OFMunicipal Corporation, Defendant-Appellee, Marcia L. Connor, Individually, Defendant-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 708

971 F.2d 708

23 Fed.R.Serv.3d 856

Melanie MARTINEZ, Plaintiff-Appellant, Cross-Appellee, v. The CITY OF OPA-LOCKA, FLORIDA, A Municipal Corporation Defendant-Appellee Marcia L. Connor, Individually, Defendant-Appellee, Cross-Appellant.

No. 90-6057.

United States Court of Appeals Eleventh Circuit.

Sept. 10, 1992.

James H. Greason, Miami, Fla., for plaintiff-appellant.

Robert I. Buchsbaum, Harriet Lewis, Hollywood, Fla., for defendants-appellees.

Appeals from the United States District Court for the Southern District of Florida.

Before HATCHETT, Circuit Judge, JOHNSON ^*, and HENDERSON, Senior Circuit Judges.

PER CURIAM:

Melanie Martinez brought this action against the City of Opa-Locka, Florida ("the City") and Marcia L. Connor in the United States District Court for the Southern District of Florida, alleging that her civil rights under the first and fourteenth amendments and 42 U.S.C. § 1983 were violated when she was fired from her position with the City in retaliation for her exercise of free speech. The jury returned a verdict against both defendants and awarded damages. The City and Connor filed motions for judgment notwithstanding the verdict ("judgment n.o.v."), or in the alternative, for new trial. The court denied Connor's motion and entered final judgment on the jury verdict for liability and damages, but granted the City's motion for judgment n.o.v. on liability. Connor appeals the denial of her motion for judgment n.o.v. Martinez cross-appeals from the entry of judgment n.o.v. in favor of the City. The issues presented are (1) whether the district court erred in denying Connor's motion for judgment n.o.v.; (2) whether Connor was entitled to the defense of qualified immunity; and (3) whether the district court erroneously granted judgment n.o.v. to the City. We affirm in part and reverse in part.

I. FACTS AND PROCEDURAL HISTORY

The City operates under a charter that establishes a "commission-manager" form of municipal government. The charter grants the City Commission general legislative and policy-making authority. The City Manager serves as the City's chief executive officer and head of the administrative branch of the municipal government. The charter authorizes the City Manager to create administrative departments, each of which is headed by a director who reports directly to the City Manager.

In 1985, Martinez signed an employment contract with the City to become Director of the Purchasing Department. She was responsible for ensuring that all of the City's purchases conformed to the bid procedures set forth in the City's Code of Ordinances. On March 26, 1988, the Commission, sitting as a Board of Inquiry, subpoenaed Martinez to testify concerning the purchasing practices of the City. In appearances before the Board of Inquiry in April and May 1988, Martinez testified that City Manager Connor violated the prescribed bid procedures for the purchase of approximately one hundred thousand dollars worth of furniture for City Hall. Martinez gave a similar statement to an investigator from the State Attorney's office for Dade County, Florida.

Martinez' father, Brian Hooten, was a Commissioner who served on the Board of Inquiry. He was defeated in his bid for re-election to his Commission seat on November 11, 1988. On November 14, 1988, on her first day back in her office after an out-of-town trip, Connor terminated Martinez' employment with the City. Afterward, Martinez filed this three-count complaint against the City and Connor individually. She alleged in count I that her first and fourteenth amendment rights of free speech were violated when she was discharged in retaliation for her testimony before the Board of Inquiry and her statement to the State Attorney's office. She sought relief pursuant to 42 U.S.C. §§ 1983 ¹ and 1988 ² in the form of compensatory damages, punitive damages against Connor, reinstatement and back-pay. In count II, she asserted a pendent state claim for breach of contract and sought compensatory damages. ³

At trial, Connor testified that she fired Martinez solely for nonperformance of her duties. She denied that her actions were motivated by Martinez' testimony before the Board of Inquiry or her statements to the State Attorney's office. The jury, however, found that Martinez' exercise of her first amendment rights was a substantial or motivating factor in her firing, and that her dismissal infringed upon those rights. On March 12, 1990, the district court entered a final amended judgment awarding Martinez (1) $101,000.00 in compensatory damages against the City and Connor, jointly; (2) $35,000.00 in punitive damages against Connor; and (3) $5,280.27 for breach of contract against the City. ⁴ The City and Connor filed a joint motion for judgment n.o.v., or in the alternative, for new trial, on March 21, 1990. The district court granted the City's motion after concluding that Connor lacked final policymaking authority in personnel matters, and therefore could not subject the City to § 1983 liability for Martinez' dismissal. It denied Connor's motion after determining that there was sufficient evidence to support the jury's finding that her actions violated Martinez' civil rights. As stated, Connor appeals the district court's denial of her motion for judgment n.o.v., and Martinez cross-appeals the district court's entry of judgment n.o.v. in favor of the City.

II. JURISDICTION

As a preliminary matter, Martinez challenges the jurisdiction of this court to entertain Connor's appeal. Final judgment was filed in this case on March 2, 1990. An amended final judgment was filed on March 7, 1990, and entered on the docket sheet on March 12, 1990, to correct a clerical error in the March 2, 1990 judgment. Connor's motion for judgment n.o.v. was filed on March 21, 1990. Martinez contends that Connor's motion for judgment n.o.v. was untimely because it was filed more than ten days after the filing of the amended final judgment. ⁵ However, the "entered-on-docket" date, in this case March 12, 1990, triggers the start of the period for filing post-judgment motions. Therefore, Connor's motion for judgment n.o.v. was timely filed within ten days of entry of the amended final judgment, and we have jurisdiction to entertain the appeal.

III. CONNER'S APPEAL

In reviewing the grant or denial of a motion for judgment n.o.v., we adopt the same standard as that followed by the district court. Miles v. Tennessee River Pulp and Paper Co., 862 F.2d 1525, 1528 (11th Cir.1989). All the evidence must be considered "in the light and with all reasonable inferences most favorable to the party opposed to the motion." Id. (quoting Boeing Co. v. Shipman, 411 F.2d 365, 374-75 (5th Cir.1969). The motion should be granted only if the evidence points so overwhelmingly in favor of one party that no reasonable person could draw a contrary conclusion. Where reasonable people could differ on the basis of substantial, conflicting evidence, the motion should be denied. Simon v. Shearson Lehman Bros., Inc., 895 F.2d 1304, 1310 (11th Cir.1990).

A.

"Although the law is well-established that the state may not demote or discharge a public employee in retaliation for speech protected under the first amendment, a public employee's right to freedom of speech is not absolute." Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir.1989) (citation omitted). To prevail because of a dismissal in retaliation for the exercise of free speech, the plaintiff must establish that (1) the expression addressed a matter of public concern; (2) the employee's first amendment interests outweigh the interests of the employer in preserving the efficiency of government services; and (3) the employer's conduct was a substantial or motivating factor in the government's discharge decision. Id. Once the plaintiff makes this showing, the burden shifts to the defendant to prove by a preponderance of the evidence that it would have reached the same decision to terminate the plaintiff's employment "even in the absence of the protected conduct." Id. at 1566 (quoting Mt. Healthy City School Dist. Board of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977)).

Because the first two elements of the plaintiff's prima facie case constitute matters of law, we review them de novo. See Bryson, 888 F.2d at 1566 n. 2; Allen v. Scribner, 812 F.2d 426, 430 n. 8 (9th Cir.1987). Whether the plaintiff's speech addressed a matter of public concern depends upon the content, form and context of the statement considered in light of the entire record. Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 2897, 97 L.Ed.2d 315 (1987). The content of Martinez' statements before the Board of Inquiry and to the State Attorney's office provided information concerning the expenditure of public funds in violation of City's Code of Ordinances. The form of her expression was testimony before the City's legislative body and statements to an investigator of the State Attorney's office. She made her statements in the context of an examination into the activities of City personnel by officials with authorized investigatory powers. As stated in Allen:

[S]peech that concerns 'issues about which information is needed or appropriate to enable the members of society' to make informed decisions about the operation of their government merits the highest degree of first amendment protection.

Allen, 812 F.2d at 431 (citation omitted). Under these circumstances, we conclude that Martinez' testimony was speech that clearly affected a matter of public concern.

Several factors must also be considered in assessing whether the City's interest in promoting efficient government services outweighs Martinez' interest in protected freedom of speech, including "(1) whether the speech at issue impedes the government's ability to perform its duties efficiently, (2) the manner, time and place of the speech, and (3) the context within which the speech...