Todd v. Navarro

• Decision Date: 31 March 1988
• Docket Number: No. 87-6151-CIV.,87-6151-CIV.
• Parties: Francine TODD, Plaintiff, v. Nick NAVARRO, Sheriff, et al., Defendants.
• Court: U.S. District Court — Southern District of Florida

698 F. Supp. 871

Francine TODD, Plaintiff, v. Nick NAVARRO, Sheriff, et al., Defendants.

No. 87-6151-CIV.

United States District Court, S.D. Florida.

March 31, 1988.

Ronald T. Spann, Ft. Lauderdale, Fla., for plaintiff.

Gordon D. Rogers, Miami, Fla., Alexander Cocalis, Ft. Lauderdale, Fla., for defendants.

ORDER ON DEFENDANTS' MOTION TO DISMISS OR FOR SUMMARY JUDGMENT, DEFENDANTS', NAVARRO AND LEE, SUPPLEMENTAL MOTION TO DISMISS OR FOR SUMMARY JUDGMENT

PAINE, District Judge.

This cause comes before the court upon Defendants' Motion to Dismiss or for Summary Judgment (DE 32), Defendants', NAVARRO and TODD, Supplemental Motion to Dismiss or for Summary Judgment (DE 34), Plaintiff's Response to NAVARRO and TODD's Supplemental Motion (DE 46) and Plaintiff's Cross Motion for Summary Judgment (DE 54). The court, having reviewed the motions, submissions of the parties and the relevant authorities, renders the following order.

Facts

On February 27, 1987, Plaintiff, FRANCINE TODD, filed a complaint (DE 1) in this court seeking a declaratory judgment, temporary and permanent restraining orders, compensatory damages, punitive damages and attorney's fees and costs. The complaint alleges that Plaintiff was employed as a Deputy Sheriff by the Broward Sheriff's Office of Broward County for approximately two and one half years. In her capacity as a Deputy Sheriff, Plaintiff served as a corrections officer at the Main Detention Facility of the Broward County Jail. The Defendants are NICK NAVARRO, the Sheriff of Broward County, thirteen (13) individual employees of the Broward Sheriff's Office¹ and "ANY AND ALL PERSONS ACTING IN ACTIVE CONCERT WITH THE ABOVE DEFENDANTS,"² all sued individually and in their official capacities.

Plaintiff is, by her own admission, a lesbian. Plaintiff alleges that, while employed by the Broward Sheriff's Office, she maintained simultaneous lesbian relationships with Defendants CERRITO and YOUNG. CERRITO and YOUNG, according to the Plaintiff, eventually became aware that the Plaintiff was involved with both of them when previously each had believed that her relationship with the Plaintiff was exclusive. Plaintiff claims that as a result of this discovery, CERRITO and YOUNG entered a conspiracy with Defendants, CERRONE and ITAYIM, to publish throughout the Broward Sheriff's Office not only certain false statements but also the fact Plaintiff is a lesbian. This resulted in ITAYIM filing disciplinary charges against Plaintiff which contained not only allegations that Plaintiff was a lesbian but also allegations regarding instances of misconduct which Plaintiff claims are untrue. Plaintiff next alleges that Defendant, CHILDS, conspired with CERRITO, YOUNG, ITAYIM and CERRONE and, at an informal hearing concerning the charges against Plaintiff, testified that the charges were true. As a result Plaintiff was suspended without pay for fourteen (14) days and transferred to a lower classification. Plaintiff states that she was not given sufficient notice of the hearing nor the opportunity to consult with counsel, confront her accusers nor call witnesses on her behalf. Defendant, MATTHEWS, presided over the hearing. It is at this point, according to the Plaintiff, that he entered the conspiracy "to ultimately terminate the employment of the plaintiff with the Broward Sheriff's Office ... solely because she was a lesbian." Plaintiff next claims that Defendants, DODD and ROBERTS, signed the final order disciplining the Plaintiff after joining the conspiracy to terminate her employment.

Upon returning to work after her suspension, Plaintiff claims that Defendants, CLARKE, HENCH and KNORR, joined with those already mentioned to harass and verbally abuse the Plaintiff in an effort to coerce her to voluntarily resign from her job. Also, it is alleged that CERRONE and KNORR "maliciously published" the fact that Plaintiff was a lesbian to prisoners at the facility in which Plaintiff worked, at which point Plaintiff claims to have begun to fear for her personal safety.

At some point after the events above Plaintiff received notice that her dismissal had been recommended. Plaintiff alleges that the recommendation was issued by Defendant, ELKINS, and was based on false charges of absenteeism, malingering and failure to perform. When Plaintiff inquired about the charges, she alleges that she was informed that she had already been dismissed and was notified of a hearing to be held on February 23, 1987. She attended the hearing with her attorney at which time she alleges that, after inquiry by her attorney, she was again informed that she had already been dismissed. Defendants, DODD, ROBERTS and DELPRETE, were present at the hearing.

Equal Protection

Plaintiff alleges that the Defendants have deprived her of her right to equal protection of the law, as guaranteed by the fifth and fourteenth amendments of the Constitution, in violation of 42 U.S.C. §§ 1983 and 1985(3). Plaintiff bases this claim upon her belief that she was fired solely because she is a lesbian. Defendants assert that Plaintiff's dismissal was based upon several specific instances of misconduct involving Plaintiff's alleged former lovers, CERRITO and YOUNG, malingering and excessive absenteeism, not homosexuality. However, Defendants argue that, because Plaintiff does not belong to a protected class of individuals, even if her homosexuality was the reason for her dismissal, their actions need only to be rationally related to a legitimate governmental purpose. Therefore, they argue that unless Plaintiff can show that Defendants actions were arbitrary and irrational, they are entitled to judgment in their favor as a matter of law.

To make out a prima facie case for discrimination on the basis of sex, Plaintiff must show that she is a member of a protected class. Garner v. Wal-Mart Stores, Inc., 807 F.2d 1536, 1538 (11th Cir. 1987). If the plaintiff is not a member of one those groups considered "suspect" for equal protection purposes, the governmental action in question need only be rationally related to a legitimate purpose. See Kelley v. Johnson, 425 U.S. 238, 96 S.Ct. 1440, 47 L.Ed.2d 708 (1976); Dronenburg v. Zech, 741 F.2d 1388 (D.C.Cir.1984).

A number of courts have declined to extend "suspect class" status to homosexuals. See Padula v. Webster, 822 F.2d 97 (D.C.Cir.1987); Dronenburg, 741 F.2d at 1388; National Gay Task Force v. Board of Educ. 729 F.2d 1270 (10th Cir.1984); DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327 (9th Cir.1979). Cf. Smith v. Liberty Mut. Ins. Co., 569 F.2d 325 (5th Cir. 1978) (Plaintiff did not make out a case for sex discrimination under the Civil Rights Act when he claimed that he had not been hired on the basis his being "effeminate.") In Padula, the court based its refusal to extend protected class status to homosexuals upon two recent decisions, Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) and Dronenburg, 741 F.2d at 1388.

Hardwick did not address an equal protection claim. Rather, the Court was asked to rule upon the constitutionality of Georgia's criminal sodomy statute in the context of the plaintiff's right of privacy. In upholding the statute, the court found that a right to engage in consensual homosexual relations is not constitutionally protected as a fundamental right. Hardwick, 478 U.S. at 190-192, 106 S.Ct. at 2844. Similarly in Dronenburg, the court of appeals for the District of Columbia focused primarily on the right to privacy of a naval officer who had been discharged for engaging in homosexual conduct. However, unlike Hardwick, the plaintiff in Dronenburg also raised an equal protection claim. In that regard, the court found that since there is no constitutional right to engage in homosexual conduct, "appellant's right to equal protection is not infringed unless the navy's policy is not rationally related to a permissible end." Dronenburg, 741 F.2d at 1391 & 1397.

Based upon Hardwick and Dronenburg the court in Padula reasoned as follows:

We therefore think the court's reasoning in Hardwick and Dronenburg forecloses appellant's efforts to gain suspect class status for practicing homosexuals. It would be quite anomalous, on its face, to declare status defined by conduct that states may constitutionally criminalize as deserving of strict scrutiny under the equal protection clause.

Padula, 822 F.2d at 103.

In DeSantis the court analyzed a sex discrimination claim in the context of both Title VII of the Civil Rights Act and 42 U.S.C. § 1985(3). Citing its earlier decision in Holloway v. Arthur Andersen & Co., 566 F.2d 659 (9th Cir.1977), the court noted that both the apparent Congressional intent and the cases interpreting the Civil Rights Act have restricted the notion of "sex" to its traditional meaning. DeSantis, 608 F.2d at 329. The Act was intended to place women on equal footing with men. Id. With respect to the § 1985(3) claim, the court found that "the courts have not designated homosexuals as a `suspect' or `quasi-suspect classification'...." This court agrees with the reasoning of the authorities cited above and finds that homosexuals are not a suspect class accorded strict scrutiny under the equal protection clause.

Defendants argue that since homosexuals are not a suspect class, their actions relating to Plaintiff's dismissal from her job need only be rationally related to a legitimate purpose. In the context of both military and law enforcement personnel, dismissal for homosexuality has been found rationally related to a permissible end. Dronenburg, 741 F.2d at 1398; Childers v. Dallas Police Dept., 513 F.Supp. 134 (N.D.Tex.1981) aff'd mem. 669 F.2d 732 (5th Cir.1982) (In finding a police department's refusal to hire a homosexual was rationally related to a legitimate government end, the court concluded "that the government's interests far outweigh any interest the plaintiff had in constitutional protection for his homosexual behavior." Id....