Sims v. Metropolitan Dade County

• Decision Date: 18 September 1992
• Docket Number: No. 91-5932,91-5932
• Citation: 972 F.2d 1230
• Parties: , 7 IER Cases 1289 Willie E. SIMS, Jr., Individually and in his capacity as a Minister of the Gospel and as a classified employee of Metropolitan Dade County, Florida, Plaintiff-Appellee, v. METROPOLITAN DADE COUNTY, Defendant, Joaquin Avino, Individually and as County Manager, Ari Sosa, Individually and as Director of the Department of Community Affairs and Lloyd Major, Individually and as Assistant Director of the Department of Community Affairs, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1230

972 F.2d 1230

61 USLW 2203, 7 IER Cases 1289

Willie E. SIMS, Jr., Individually and in his capacity as a Minister of the Gospel and as a classified employee of Metropolitan Dade County Florida, Plaintiff-Appellee, v. METROPOLITAN DADE COUNTY, Defendant Joaquin Avino, Individually and as County Manager, Ari Sosa Individually and as Director of the Department of Community Affairs and Lloyd Major, Individually and as Assistant Director of the Department of Community Affairs Defendants-Appellants.

No. 91-5932.

United States Court of Appeals, Eleventh Circuit.

Sept. 18, 1992.

Lee Kraftchick, Asst. Co. Atty., Miami, Fla., for defendants-appellants.

Jesse J. McCrary, Jr., McCrary & Dove, Miami, Fla., for plaintiff-appellee.

Mark King Leban, Miami, Fla., amicus-ACLU of Florida.

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

Before KRAVITCH and HATCHETT, Circuit Judges, and BROWN ^*, Senior Circuit Judge.

BROWN, Senior Circuit Judge:

Willie Sims filed this action pursuant to 42 U.S.C. § 1983 alleging that he was unlawfully suspended from government employment for exercising his First Amendment rights. He sued his employer, Metropolitan Dade County, and three supervisory employees of Dade County, Joaquin Avino, Ari Sosa, and Lloyd Major, in their individual and official capacities. Avino, Sosa, and Major, exclusively in their individual capacities, moved for summary judgment based on qualified immunity. The district court denied the motion without prejudice to the Defendants' right to reassert the defense at trial. Avino, Sosa, and Major now appeal, in their individual capacities, from the district court's denial of their motion for summary judgment. For the following reasons, we reverse the order of the district court and remand for resolution of the remaining claims asserted by Sims.

I. FACTS

Willie Sims is a Black man who, for more than ten years, has worked for the Dade County Department of Community Affairs (the "Department"), which serves the Greater Miami, Florida area. The Department's function is to foster mutual understanding and tolerance among all of Miami's ethnic groups. As a former member and coordinator of the Department's Crisis Prevention and Response Team, and as a current member of the Department's Office of Black Affairs, Sims' position requires that he investigate concerns of the Miami community's various ethnic groups and attempt to ease the tensions among such groups. His job requires that he work to promote harmonious community relations.

During 1984, Sims became a preacher. By 1989, he had become a pastor, and he currently serves in that capacity for the Greater New Faith Missionary Baptist Church. In his capacity as pastor, Sims ministers to the spiritual and, he alleges, the secular needs of his congregation. During his sermons, he sometimes comments upon current nonreligious issues of concern to his parishioners and to members of the Black community in general. In his capacity as a pastor and a citizen, Sims occasionally has made remarks that his supervisors at the Department felt were inappropriate in view of his position with the Department.

During July of 1988, Dr. Aristides Sosa, Sims' superior in the Department, counseled Sims after Sims publicly complained about what he perceived to be the Metro-Dade Police Department's racially discriminatory practices. In the early part of the summer of 1990, racial tensions mounted in Miami after the perceived snubbing of Nelson Mandela during his visit to the United States. At a community meeting called to discuss the situation, Miami Mayor Xavier Suarez indicated that Mandela was not honored with a key to Miami because of Mandela's support for Fidel Castro. Upon hearing this, Sims called Mayor Suarez an "idiot," a description he later repeated on the radio. Sosa again counseled Sims for his contentious remarks.

After the Mandela incident and in reaction thereto, segments of the Black community commenced a boycott. Sims made the statements that gave rise to this action during a December 16, 1990 sermon. Sims contends that he made the following remarks while discussing the boycott:

We are now entering the second phase of the boycott known as "Rediscovering Black Miami." You should not spend your money with any business that does not hire Blacks or who have [sic] not shown any sensitivity toward us in the past and you should support Black businesses or those who have a history of hiring Blacks. Sometimes we are made to feel like foreigners in our own homeland because of the way Spanish is spoken in many of our public facilities and businesses, such as restaurants, that we frequent.

The Defendants contend that Sims said he felt like a "foreigner in my own land," that he was "frustrated at having to speak Spanish in Miami, especially in restaurants," and that it was time for Blacks to stop doing business with White and Hispanic establishments.

Sims' statements, as reported in Spanish in the El Nuevo Herald, ¹ infuriated members of the Hispanic community. County Manager Joaquin Avino directed Sosa to conduct an investigation of Sims' comments and to take disciplinary action if appropriate. Sims, Sosa, and Lloyd Major, Assistant Director of the Department of Community Affairs, met and discussed the statements. Sims contended that the Department had no right to control what he said from his pulpit. As he later told reporters, "I'm appalled that in America we would question what a clergyman would say from his pulpit.... [I]n my pulpit ... I'm large and I'm in charge." Noting that Sims previously had been counseled to control his off-duty speech, Sosa and Major imposed a three-day suspension, without pay, for the remarks. They also offered to help Sims obtain a transfer to another County position that would not limit his speech, but Sims declined the offer.

In response to the three-day suspension, Sims brought this action under 42 U.S.C. § 1983. He alleged that his suspension, for comments made while he was off-duty and in the pulpit, violated his rights to freedom of speech and religion under the First and Fourteenth Amendments. ² After taking Sims' deposition, Avino, Sosa, and Major, in their individual capacities, moved for summary judgment based on qualified immunity. The district court, without elaboration, denied the motion, "without prejudice to the individual Defendants' right to reassert a defense of qualified immunity at the trial of this cause." Avino, Sosa, and Major brought this appeal.

II. DISCUSSION

The Defendants appeal from an order denying a motion for summary judgment based on qualified immunity. To the extent that an order denying summary judgment based on qualified immunity turns on an issue of law, it is an appealable order. See Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817-18, 86 L.Ed.2d 411, 427 (1985). Because our jurisdiction over such an order is limited to issues of law, we review de novo. See Hutton v. Strickland, 919 F.2d 1531, 1536 (11th Cir.1990).

A.

As noted supra, the district court denied the Defendants' motion for summary judgment "without prejudice to the individual Defendants' right to reassert a defense of qualified immunity at the trial of this cause." Both sides contend that the court's ruling constituted error, although they dispute the appropriate remedial measures.

The Defendants point out that, by denying their motion without prejudice, the district court failed to resolve the qualified immunity issue prior to trial. They contend that the qualified immunity defense should provide them with more than a defense against monetary liability; it should shield them from the burdens of pretrial preparation and trial. The district court, they point out, effectively deferred its ruling upon the issue until trial. At a minimum, they conclude, we should remand the case to the district court for a resolution of the qualified immunity issue prior to the completion of pretrial discovery and trial.

Sims responds that the district court, in effect, made a final ruling on the motion for summary judgment. The district court's error, he contends, lies in its "suggestion" that the Defendants may reassert the defense, based on the record, at trial. Sims contends, therefore, that the "without prejudice" language should be ignored because, under established law, the Defendants cannot do what the ruling apparently would allow them to do.

The American Civil Liberties Union ("A.C.L.U."), as amicus curiae, contends that the district court may properly deny, without prejudice, a motion for summary judgment based on qualified immunity. It concludes that this court should proceed to the merits of the First Amendment issue.

Qualified immunity is an immunity from suit and is effectively lost if a case is erroneously permitted to go to trial. See Mitchell, 472 U.S. at 526, 105 S.Ct. at 2815-16. The denial of a motion for summary judgment based on qualified immunity implies one of two possible conclusions: (1) taking the official's version of the facts as true, the district court concluded that the official's actions violated clearly established law; or (2) assuming the plaintiff's version of the facts to be true, the district court concluded that the official's alleged actions violated clearly established law. See Ansley v. Heinrich, 925 F.2d 1339, 1348 (11th Cir.1991).

Under the first conclusion, nothing in the subsequent course of the district court's proceedings could alter its holding. Under the second conclusion, however, unresolved factual issues may prevent the early disposition of the defense. Thus, under the second conclusion, a district court may be forced to deny a pretrial motion for summary judgment and decide the issue on a motion for directed verdict. Cf. Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir.), cert. denied --- U.S. ----, 111 S.Ct. 431, 112 L.Ed.2d 414 (1990). In such a situation, it would be appropriate to deny a motion for summary...