Lucas v. City of Delray Beach

692 F.Supp.3d 1271

Nicole Ofsowitz LUCAS, Plaintiff, v. CITY OF DELRAY BEACH, a Florida Municipal Corporation, Defendant.

CASE NO. 21-cv-80469-ALTMAN/Matthewman

United States District Court, S.D. Florida

Filed September 15, 2023

Signed September 14, 2023

William Robert Amlong, Jennifer E. Daley, Karen Coolman Amlong, Amlong & Amlong, PA, Fort Lauderdale, FL, for Plaintiff.

Alen H. Hsu, Lindsay Marie Massillon, Weiss Serota Helfman Cole & Bierman, P.L., Boca Raton, FL, Brett Jeremy Schneider, Weiss Serota Helfman Cole Bierman & Popok, P.L., Fort Lauderdale, FL, Christopher J. Stearns, Jr., Johnson Anselmo Murdoch Burke Piper & Hochman PA, Fort Lauderdale, FL, D. Porpoise Evans, Weiss Serota Helfman Cole & Bierman, P.L., Coral Gables, FL, Marice Guzman, Miami, FL, for Defendant.

ORDER ON SUMMARY JUDGMENT

ROY K. ALTMAN, UNITED STATES DISTRICT JUDGE

On June 2, 2020, our Plaintiff, Nicole Lucas, an officer with the City of Delray Beach Police Department published an expletive-laden rant about Black Lives Matter on her Facebook page and invited anyone who disagreed with her to "unfriend" her. After several members of the public brought Lucas's angry post to the attention of the Police Department, Javaro Sims (the City's Police Chief) initiated disciplinary proceedings against her—at the end of which the Police Department issued her a written reprimand. Lucas now claims that this reprimand cost her a chance to serve as an undercover agent for the DEA.

Under an agreement the Police Department had signed with the DEA, the Department could recommend one of its officers for a detail assignment on a DEA task force. Of course, the DEA—not the Police Department—had the final say over any applicant. When she wrote the incendiary post at issue here, Lucas was being considered for that special assignment. But, after it asked for a copy of Lucas's internal-affairs file, the DEA passed her over. Seeing the Police Department's hand in this decision, Lucas sued our Defendant—the City of Delray Beach—alleging one count of First Amendment retaliation under 42 U.S.C. § 1983 (Count I) and one count of sex discrimination, also under § 1983 (Count II). After we denied the City's motion to dismiss, the parties engaged in substantial discovery and have now asked us to resolve this case at summary judgment. While Lucas has moved for summary judgment only on her First Amendment claim, see generally Plaintiff's Rule 56 Motion for Partial Summary Judgment ("Lucas's MSJ") [ECF No. 96], the City asks for judgment on both counts, see generally Defendant's Motion for Summary Judgment ("City's MSJ") [ECF No. 97]. Having carefully reviewed the parties' briefs,¹ the record, and the governing law, we now GRANT the City's MSJ and DENY Lucas's MSJ.

THE FACTS²

By June of 2020, Nicole Ofsowitz Lucas had been "an undercover narcotics agent" in the Delray Beach Police Department's "Vice, Intelligence[,] and Narcotics Unit since 2017 or 2018[.]" Plaintiff's Local Rule 56.1(a) Statement of Material Facts in Support of Motion for Summary Judgment ("Lucas's SOF") [ECF No. 95] ¶ 2 (citing Dec. 15, 2021 Deposition of Nicole Ofsowitz Lucas ("Lucas Dec. Dep.") [ECF No. 98-3] at 22:16-18); see also Defendant's Response to Plaintiff's Statement of Material Facts ("City's Response SOF") [ECF No. 101] ¶ 2 ("Undisputed."). In those days, the City had a standing agreement with the DEA, under which the City would "detail one experienced officer [from the Police Department] to the DEA West Palm Beach Task Force for minimum two-year periods, during which time the officer is [ ] under the direct supervision and control of DEA supervisory personnel assigned to Task Force." City's Statement of Material Facts ("City's SOF") [ECF No. 98] ¶ 65 (citing the Program-Funded State and Local Task Force Agreement [ECF No. 98-19] at 1); see also Plaintiff's Amended Response to the Defendant's Statement of Material Facts in Support of the Motion for Summary Judgment ("Lucas's Response SOF") [ECF No. 105] ¶ 65 ("Not disputed, but not relevant to summary judgment.").³ But the decision to accept an officer into the Task Force has always been reserved to the "DEA's discretion." City's SOF ¶ 66; see also Lucas's SOF ¶ 66 ("Not disputed[.]").

At the same time, the City is "responsible for establishing the salary and benefits, including overtime, of the officers assigned to the Task Force[.]" City's SOF ¶ 67; see also Lucas's SOF ¶ 67 ("Not Disputed[.]"). And the City "does not change the salary or benefits of officers detailed to the Task Force . . . and would not have changed the salary or benefits of Lucas had she been detailed to the Task Force." City's SOF ¶ 68; see also Lucas's SOF ¶ 68 ("Not Disputed[.]"). The Task Force also "doesn't guarantee an officer any particular amount of overtime pay, including more overtime pay than that which the officer would ordinarily receive while not on the Task Force." City's SOF ¶ 69; see also Lucas's SOF ¶ 69 ("See response to ¶ 68, which Ms. Lucas adopts in response to this paragraph.").⁴

On June 2, 2020, Lucas—still a police officer with Delray Beach and hoping to join the DEA Task Force—posted the following statement on her private Facebook page:

Fuck everyone who says black lives matter. I can't take your fucking bullshit anymore. ALL LIVES MATTER! BLM encourages racial divide, violence and hate. Look at all the officers killed and injured for trying to protect people & property they don't even know. Officers are being killed every fucking day & now even more so and no one riots or wears shirts that say POLICE LIVES MATTER. If you don't agree with my feelings PLEASE do not comment. If you don't like me now then just unfriend me. But know ALL LIVES MATTER TO ME, AND I GO ABOVE AND BEYOND TO HELP ALL PEOPLE.

City's SOF ¶ 1 (quoting Facebook Post [ECF No. 98-1] at 1 (errors in original)); see also Lucas's SOF ¶ 1 ("Plaintiff posted the statement that the City of Delray Beach quotes in ¶ 1.").

Word of Lucas's post quickly spread. Indeed, just one day after the post was published, Javaro Sims, the Chief of the Police Department, heard about it twice. First, "on June 3, 2020," Chief Sims "received a copy of Lucas'[s] Facebook post in a text message from Sharon Edmonds." City's SOF ¶ 7; see also Lucas's Response SOF ¶ 7 ("Admitted."). Edmonds, who "became friends with [Lucas] approximately 18 years ago when Lucas was a probation officer," City's SOF ¶ 10; see also Lucas's Response SOF ¶ 10 ("Admitted[.]"), was also "Facebook friends with Lucas," City's SOF ¶ 11; see also Lucas's Response SOF ¶ 11 ("Admitted."). "Edmonds later unfriended Lucas" on Facebook. City's SOF ¶ 12; see also Lucas's Response SOF ¶ 12 ("Admitted[.]").

Second, later that same day, at a "We Can't Breathe" rally "concerning the murder of George Floyd and police reform," City's SOF ¶ 13; see also Lucas's Response SOF ¶ 13 ("Admitted[.]"), "an anonymous individual approached Chief Sims and informed him of Lucas'[s] Facebook post, showing it to him on a cell phone," City's SOF ¶ 17; see also Lucas's Response SOF ¶ 17 ("Plaintiff objects to ¶ 17 as inadmissible hearsay." (citing Hammond v. Hall, 586 F.3d 1289, 1319 (11th Cir. 2009) ("Anonymous tips are not admissible into evidence to prove the truth of the matter stated in the tip."))).⁵

After reading the Facebook post, Chief Sims worried that it "was a violation of [the Police Department's] General Order 1917," Videoconference Deposition of Chief Javaro Sims ("Sims Dep.") [ECF No. 98-5] at 40:25-41:12, which prohibits employees from posting "racist, prejudice [sic], offensive, homophobic, sexist comments or hate speech," Delray Beach Police Department General Order 1917 ("General Order 1917") [ECF No. 98-14] at 3; see also City's SOF ¶ 18 ("Upon seeing Lucas'[s] Facebook post, Sims concluded it likely violated one or more Department policies."); Lucas's Response SOF ¶ 18 ("Not Disputed."). Chief Sims was also concerned that the post was "contrary to the Police Department's mission statement and values, and he perceived it as inflammatory, offensive, possibly racist, and likely to contribute to a hostile work environment." City's SOF ¶ 19; see also Lucas's Response SOF ¶ 19 ("Not disputed[.]"). Finally, Sims thought that "Lucas'[s] post could cause a ruckus and that it could undermine the Police Department's efforts to maintain trust and legitimacy in the eyes of the public." City's SOF ¶ 20; see also Lucas's Response SOF ¶ 20 ("Not disputed[.]").⁶ Chief Sims therefore "shared the post with Assistant Chief Sapino and Lieutenant Scott Privitera (who at the time was in charge of Internal Affairs)." City's SOF ¶ 21; see also Lucas's Response SOF ¶ 21 ("Not disputed[.]").

Both officers found Lucas's Facebook post problematic. "Lieutenant Privitera found the post 'derogatory' and concerning, given the climate at the time." City's SOF ¶ 23 (quoting Deposition of Scott M. Privitera ("Privitera Dep.") [ECF No. 98-8] at 13:1-3); see also Lucas's Response SOF ¶ 23 ("Not disputed[.]"). As he put it, " 'I think the opening line says it all. When she says "Fuck everyone who says black lives matter," I think that lacks sincerity. I think that's, in a sense, not a very well-thought-out thing to say, given the time when the officer was just charged with murder of George Floyd, the entire Midwest was up in arms over that.' " City's SOF ¶ 23 (quoting Privitera Dep. at 37:15-21); see also Lucas's Response SOF ¶ 23 ("Not disputed[.]"). And Assistant Chief Sapino worried that Lucas wouldn't make " 'sound judgment decisions' " with respect to " 'decisions that can ultimately end up taking someone's freedom or life, and if she can't take this bullshit anymore, that shows me there's an issue with her mental clarity.' " City's SOF ¶ 26 (quoting Deposition of Gene D. Sapino ("Sapino Dep.") [ECF No. 98-10] at 27:3-11, 45:11-13); see also Lucas's Response SOF ¶ 26 ("Not disputed[.]").

Agreeing that Lucas's post might violate the Police Department's policies, Chief Sims ...