Rice-Lamar v. City of Fort Lauderdale

• Citation: 54 F.Supp.2d 1137
• Decision Date: 25 November 1998
• Docket Number: No. 97-7007-CIV.,97-7007-CIV.
• Parties: Deborah RICE-LAMAR, Plaintiff, v. CITY OF FORT LAUDERDALE, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

54 F.Supp.2d 1137

Deborah RICE-LAMAR, Plaintiff, v. CITY OF FORT LAUDERDALE, et al., Defendants.

No. 97-7007-CIV.

United States District Court, S.D. Florida.

November 25, 1998.

COPYRIGHT MATERIAL OMITTED

Joel Hirschhorn, Joel Hirschhorn, P.A., Coral Gables, FL, Reginald John Clyne, Simmons & Clyne, Coral Gables, FL, for plaintiff.

Carmen Sirkin Johnson, Kelly Cheary, Muller Mintz Kornreich Caldwell Casey Crosland & Bramnick, Miami, FL, for defendants.

ORDER GRANTING FINAL SUMMARY JUDGMENT FOR DEFENDANTS

DIMITROULEAS, District Judge.

THIS CAUSE is before the Court upon the following motions:

1. Defendant John Panoch's Motion for Summary Judgment [DE 135];

2. Defendant Bruce Larkin's Motion for Summary Judgment [DE 137];

3. Defendant Pete Witschen's Motion for Summary Judgment [DE 139];

4. Defendant George Hanbury's Motion for Summary Judgment [DE 141]; and

5. The Defendant City of Fort Lauderdale's Motion for Summary Judgment [DE 143].

The Court has carefully considered the motions and is otherwise fully advised in the premises.

I. BACKGROUND

The plaintiff, Deborah Rice-Lamar ("Lamar"), an African-American female, brought the present action pursuant to the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Civil Rights Act of 1991 ("Title VII"), and 42 U.S.C. §§ 1981, 1983 and 1985(3) against her former employer, the City of Fort Lauderdale ("the City"), and against her former supervisors, George Hanbury ("Hanbury"), the City Manager, Pete Witschen ("Witschen"), the Assistant City Manager, Bruce Larkin ("Larkin"), the Director of Administrative Services, and John Panoch ("Panoch"), the Director of Personnel, in their individual capacities (collectively referred to as the individual defendants). Lamar had worked for the City as its Affirmative Action Specialist from June 20, 1988 until her employment was terminated on October 21, 1996. In her twelve count Second Amended Complaint, Lamar has asserted the following claims: (1) violation of Title VII by the City (Count I); (2) violation of 42 U.S.C. § 1983 by all of the defendants (Counts II through VI); (3) violation of 42 U.S.C. § 1985(3) by all of the defendants (Count VII); and violation of 42 U.S.C. § 1981 by all of the defendants (Counts VIII through XII). The essence of Lamar's complaint is that she was retaliated against for exercising her freedom of speech rights and she was discriminated against based upon her race and gender.

II. FACTS

The Court notes that the material facts are not in dispute.¹ Specifically, prior to January 1995, Lamar had never been the subject of any disciplinary action and had always received above average performance evaluations. Sometime during 1995, Lamar prepared the City's official 1995 Affirmative Action Report (hereinafter "Affirmative Action Report" or "Report") which indicated that the City needed to take a new direction to end the systemic discrimination within the City government. The Report contained Lamar's own personal commentary and conclusions, which Lamar honestly believed accurately reflected the situation at the City. Lamar, however, alleges her supervisors told to her to only publish the statistical numbers, which she claimed hid the City's discriminatory practices.

On January 19, 1995, Lamar received a Written Reprimand from Panoch for, inter alia: (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 (hereinafter "MBE/WBE Directory") for the City Commission which was due December 22, 1994. Lamar later received a one-day suspension for failure to meet the January 31, 1995 deadlines for completing the 1995 Affirmative Action Report. Lamar did not appeal this disciplinary action to the City's autonomous Personnel (Civil Service) Board.

Lamar again failed to produce the 1995 Affirmative Action Report by the revised deadlines of March 1995. A five day suspension was recommended. Lamar appealed the recommendation, and the suspension was reduced to four days for records purposes only. Lamar did not further appeal this disciplinary action.

In February 1996, a City employee shot several co-workers and also committed suicide. The employee left a suicide note that allegedly stated his attack was to punish his former co-workers for the unfair and racist treatment that he received. As a result of the shootings, the City hired Crisis Management International, Inc. ("CMI") to provide psychological services. During this time period, various meetings were held related to the shooting incident. Lamar was excluded from these meetings. At times, however, Lamar would invite herself to the crisis management meetings. 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 immediate supervisors.

On June 19, 1996, Lamar presented the 1996 Affirmative Action Report, which she had prepared, to the department head meeting. As with the 1995 Report, Lamar included her own commentary and conclusions in the Report which she honestly believed to be the truth. In particular, the "narrative section of this first draft plainly stated that `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.'" Plaintiff's Opposition Brief [DE 159 at 4] (quoting Excerpt First Draft of 1996 Affirmative Action Report, Plaintiff's Appendix, Exhibit M [DE 68]). Lamar alleges that senior management was not receptive to the report and that each of the named individual defendants requested that she make various substantive changes to the report. Lamar refused to make the changes.

On July 22, 1996, Lamar left her own revised copy of the 1996 Report in the offices of Larkin and Panoch for review with the message that it was ready for printing and distribution. On July 26, 1996, Larkin met with Lamar and offered her the opportunity to resign. On July 29, 1996, Lamar distributed her own revised version of the 1996 Affirmative Action Report, without being reviewed, to City Manager Hanbury and all but one of the other department heads. On July 29, 1996, Lamar also distributed the MBE/WBE Directory.

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. On August 11, 1996, Lamar was notified of possible disciplinary action based, inter alia, upon the delinquent MBE/WBE Directory and the unauthorized distribution of the directory and revised 1996 Affirmative Action Report. The City Manager eventually approved Lamar's discipline which was to dismiss her effective October 21, 1996.

The crux of Lamar's complaint is that she was reprimanded, suspended and discharged allegedly due to her opinions and due to her race and gender. Lamar's principal argument is that her "attempt to publish her report was a substantial motivating factor in her discharge, as the timing of her discharge and immediate expulsion from the City showed that her superiors want to squelch her from communicating her opinions further." Opposition Brief [DE 159 at 5-6].

III. DISCUSSION

The defendants have filed the present motions for summary judgment asserting the following arguments: (1) Lamar's speech was not protected by the First Amendment; (2) Lamar cannot establish a prima facie case of discrimination and cannot establish that the City's legitimate, non-discriminatory reasons for its actions were pretextual; and (3) the individual defendants are entitled to qualified immunity. The Court will address each of the defendant's arguments in turn.

A. Summary Judgment Standard

The Court may grant summary judgment "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." Fed.R.Civ.P. 56(c). The stringent burden of establishing the absence of a genuine issue of material fact lies with the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986). The Court should not grant summary judgment unless it is clear that a trial is unnecessary, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and any doubts in this regard should be resolved against the moving party, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

The movant "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp., 477 U.S. at 323, 106 S.Ct. 2548. To discharge this burden, the movant must point out to the Court that there is an absence of evidence to support the nonmoving party's case. Id. at 325, 106 S.Ct. 2548.

After the movant has met its burden under Rule 56(c), the burden of production shifts and the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Electronic Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). According to the plain language of Fed. R.Civ.P. 56(e), the non-moving party "may not rest upon the mere allegations or denials of the adverse party's pleadings," but instead must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 587, 106 S.Ct. 1348.

Essentially, so long as the non-moving party has had an ample opportunity to conduct...