Green v. Finkelstein

RUBY GREEN, Plaintiff, v. HOWARD L. FINKELSTEIN, et al., Defendants.

Case No. 20-cv-62160-BLOOM/Valle

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

February 3, 2021

OMNIBUS ORDER

THIS CAUSE is before the Court upon two Motions filed by the named Defendants in this case.¹ See ECF Nos. [17] & [19] (collectively, the "Motions"). Howard Finkelstein, in his official capacity as the Broward County Public Defender ("Public Defender"), and the Office of the Public Defender for Broward County ("Public Defender's Office") (collectively, "Official Defendants") filed a Motion to Dismiss Complaint and Motion to Strike Plaintiff's Claim for Punitive Damages. ECF No. [17]. Additionally, Howard Finkelstein, in his individual capacity ("Defendant Finkelstein"), filed a Motion to Dismiss Complaint, ECF No. [19].² The Court has carefully reviewed the Motions, all opposing and supporting submissions, the record in this case, the applicable law, and is otherwise fully advised. For the reasons set forth below, the Motions are denied.

I. BACKGROUND

On October 23, 2020, Green initiated this action against Defendants alleging claims of First Amendment retaliation under 42 U.S.C. § 1983. See ECF No. [1]. According to the Complaint, Green was previously employed as an assistant public defender for Broward County. Id. ¶¶ 2, 5. During her employment with the Public Defender's Office, Green campaigned for public office to replace the retiring Public Defender, Defendant Finkelstein. Id. ¶¶ 2, 6. Green contends that during her employment and while campaigning for office, she was actively engaged in speaking about "social justice issues." Id. ¶ 7. Specifically, Green publicly advanced her position on the "equitable treatment of African American participants in the criminal justice system" by engaging the community at large and participating in podcasts. Id. ¶¶ 7, 10, 16. The morning after her unsuccessful election, Green received an e-mail and text message notifying Green of her termination. Id. ¶ 8. That same morning, Defendant Finkelstein participated in an interview with the South Florida Sun Sentinel, during which Defendant Finkelstein purportedly "admitted" to the reporter that he personally made the decision to terminate Green, and that his decision was based on the statements Green made during her campaign for public office. Id. Accordingly, the Complaint asserts two counts for relief: (1) First Amendment Retaliation against Defendant Finkelstein; and (2) First Amendment Retaliation against the Official Defendants.

On December 14, 2020, and December 16, 2020, Defendants filed their respective Motions. See ECF Nos. [17] & [19]. Defendants argue that Green fails to state a plausible claim for First Amendment retaliation because the Complaint is devoid of any facts or substantive allegations concerning her protected speech.³ Additionally, the Official Defendants move to strike Green'sclaim for punitive damages. Green timely filed a Response to each Motion, see ECF Nos. [21] & [22], and Defendants subsequently filed their respective Replies, see ECF Nos. [25] & [26].

The Motions, accordingly, are ripe for consideration.

II. LEGAL STANDARD

A pleading in a civil action must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although a complaint "does not need detailed factual allegations," it must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining that Rule 8(a)(2)'s pleading standard "demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation"). Nor can a complaint rest on "'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

When reviewing a motion under Rule 12(b)(6), a court, as a general rule, must accept the plaintiff's allegations as true and evaluate all plausible inferences derived from those facts in favor of the plaintiff. See Miccosukee Tribe of Indians of Fla. v. S. Everglades Restoration Alliance, 304 F.3d 1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co. v. Infinity Fin. Grp., LLC, 608 F. Supp. 2d 1349, 1353 (S.D. Fla. 2009). However, this tenet does not apply to legal conclusions, and courts "are not bound to accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cnty. Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir. 2006). Moreover, "courts may infer from the factual allegations in the complaint 'obvious alternative explanations,' which suggest lawful conduct rather than the unlawful conduct the plaintiff would ask the court to infer." Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556 U.S. at 682).

A court, in considering a Rule 12(b)(6) motion, "may consider only the complaint itself and any documents referred to in the complaint which are central to the claims." Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009) (citing Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1369 (11th Cir. 1997)); see also Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 n.3 (11th Cir. 2005) ("[A] document outside the four corners of the complaint may still be considered if it is central to the plaintiff's claims and is undisputed in terms of authenticity." (citing Horsley v. Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002))).

III. DISCUSSION

A. First Amendment Retaliation

The crux of Green's claims is that she was terminated by Defendants in retaliation for her public statements on social justice issues, and that this retaliatory termination violated her First Amendment rights. In the Motions, Defendants first seek dismissal of the Complaint on the grounds that, absent Green specifically pleading what she said, when she said it, and to whom she was speaking, she cannot establish that the speech for which she was terminated was constitutionally protected. ECF No. [17] at 6; ECF No. [19] at 8. Stated differently, Defendants suggest that the Complaint must "set forth [Green's] actual words." ECF No. [25] at 3-4; ECF No. [26] at 2-3. However, the Court's analysis under § 1983 is guided by Rule 8(a)(2), and not a heightened pleading standard. See Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010) ("After Iqbal it is clear that there is no 'heightened pleading standard' as it relates to cases governed by Rule 8(a)(2), including civil rights complaints. All that remains is the Rule 9 heightened pleading standard."). It is through the lens of Rule 8(a)(2) that the Court considers the Motions and the parties' arguments.

"A government employer may not demote or discharge a public employee in retaliation for speech protected by the First Amendment." Alves v. Bd. of Regents of the Univ. Sys. of Ga., 804 F.3d 1149, 1159 (11th Cir. 2015) (citing Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir. 1989)). While it is true that a citizen who enters public service "must accept certain limitations on his or her freedom[,] . . . [t]he First Amendment limits the ability of a public employer to leverage the employment relationship to restrict, incidentally or intentionally, the liberties employees enjoy in their capacities as private citizens." Garcetti v. Ceballos, 547 U.S. 410, 418-19 (2006) (citing Waters v. Churchill, 511 U.S. 661, 671 (1994); Perry v. Sindermann, 408 U.S. 593, 597 (1972)); see also Lane v. Franks, 573 U.S. 228, 236 (2014) ("public employees do not renounce their citizenship when they accept employment, and [the Supreme Court] has cautioned time and again that public employers may not condition employment on the relinquishment of constitutional rights" (citations omitted)). Thus, in the First Amendment context, courts must "arrive at a balance between the interests of the [employee], 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." Pickering v. Bd. of Educ. of Twp. High Sch. Dist., 391 U.S. 563, 568 (1968); see also Garcetti, 547 U.S. at 418 (the Pickering balancing test "reflects the importance of the relationship between the speaker's expressions and employment. A government entity has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the entity's operations.").

The Court of Appeals for the Eleventh Circuit has set forth a four-part inquiry to determine whether an employer's actions constitute retaliation for protected speech in violation of the First Amendment: (1) whether the employee's speech involves a matter of public concern; (2) whetherthe employee's interest in commenting upon matters of public concern outweighs the employer's legitimate interest in promoting the efficiency of public service it performs through its employees; (3) whether the employee's speech played a substantial or motivating factor in the employer's decision to demote or discharge the employee; and (4) whether the employer would have taken the same action against the employee even in the absence of the protected speech. See Bryson, 888 F.2d at 1565-66. "The first two steps are questions of law; the final two steps are 'questions of fact designed to determine whether the alleged adverse employment action was in retaliation for the protected speech.'" Cook v. Gwinnett Cnty. Sch. Dist., 414 F.3d 1313, 1318 (11th Cir. 2005) (quoting Anderson v. Burke Cnty., Ga., 239 F.3d 1216, 1219-20 (11th Cir. 2001)).

To state a claim for First Amendment retaliation, a government employee must allege facts showing: "(1) [she] engaged in speech or an act that was constitutionally...