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holding that alleged series of retaliatory acts raised a plausible inference of causation at the motion-to-dismiss stage, notwithstanding nearly four-year gap between the plaintiff's alleged protected activity and his termination
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CASE NO. 19-24212-CIV-ALTONAGA/Goodman
01-15-2020
Jean Paul DIPIETRO, Plaintiff, v. CITY OF HIALEAH, et al., Defendants.
Jacob Karl Auerbach, Gallup Auerbach, Coral Springs, FL, Dana Mason Gallup, Gallup Auerbach, Hollywood, FL, for Plaintiff. David Clayton Miller, Ranjiv Sondhi, Bryany Miller Olive P.A., Miami, FL, Lourdes Espino Wydler, Oscar Edmund Marrero, Marrero & Wydler, Coral Gables, FL, for Defendant.
Jacob Karl Auerbach, Gallup Auerbach, Coral Springs, FL, Dana Mason Gallup, Gallup Auerbach, Hollywood, FL, for Plaintiff.
David Clayton Miller, Ranjiv Sondhi, Bryany Miller Olive P.A., Miami, FL, Lourdes Espino Wydler, Oscar Edmund Marrero, Marrero & Wydler, Coral Gables, FL, for Defendant.
ORDER
CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE
THIS CAUSE is before the Court on Defendant, City of Hialeah's ("City['s]") Motion to Dismiss Complaint [ECF No. 24]. Plaintiff filed a Response [ECF No. 32] to the Motion, to which the City filed a Reply [ECF No. 33]. The Court has carefully considered the Complaint [ECF No. 1], written submissions, the record, and applicable law. For the following reasons, the Motion is granted in part and denied in part.
I. BACKGROUND
This action involves a public employee's retaliation claims against his government employer and supervisors. (See generally Compl.). Plaintiff, Jean Paul DiPietro, is a former City employee. (See id. ¶¶ 8, 30). The City is a public municipality located in Miami-Dade County. (See id. ¶ 7). Defendant, Sergio Velazquez, named in his individual capacity, is the City's Chief of Police; Defendant, Carlos Hernandez, also named in his individual capacity, is its Mayor. (See id. ¶¶ 5–6).
Plaintiff was hired as a uniform City police officer in 2003. (See id. ¶ 8). In 2010, Plaintiff was promoted to the rank of sergeant and worked under the supervision of Chief Velazquez. (See id. ¶¶ 9–10).
In February 2016, Patrol Officer Juan Iglesias sued the City, alleging it violated the Florida Public Whistleblower's Act by retaliating against him while he was employed with the City. (See id. ¶ 11). Officer Iglesias brought attention to the City's traffic citation quota, an unlawful practice under section 316.640(8)(b), Florida Statutes. (See id. ).
See generally Fla. Stat. § 112.3187.
The City's unlawful traffic citation quota actuates Plaintiff's retaliation claims. (See generally id. ). Plaintiff was ordered to discipline Officer Iglesias on two occasions for failing to meet the quota. (See id. ¶ 12). Plaintiff refused to discipline Officer Iglesias and other employees. (See id. ¶ 13). As a result, Plaintiff was subjected to several disciplinary actions by the City, Chief Velazquez, and Mayor Hernandez, and was ultimately terminated. (See id. ¶¶ 13–19, 23–30).
In October and December 2015, Plaintiff was reprimanded for refusing to discipline Officer Iglesias and for recommending Iglesias be removed from his probationary action plan. (See id. ¶¶ 14–15). In January 2016, Plaintiff received a written reprimand from Chief Velazquez for failing to discipline a subordinate officer. (See id. ¶ 16). In June 2016, Plaintiff received a second written reprimand from Chief Velazquez for failing to discipline Officer Iglesias. (See id. ¶ 17). Plaintiff was instructed to discipline officers who "showed a lack of traffic safety and self-initiated activity during said month[s]." (Id. ¶¶ 16–17 (alteration added; internal quotation marks omitted)). Plaintiff states this language was used to indicate the officers failed to meet the unlawful traffic citation quota. (See id. ¶ 18).
In July 2017, Plaintiff was subpoenaed to provide testimony in Officer Iglesias's civil suit against the City. (See id. ¶ 20). Plaintiff testified Officer Iglesias performed his job well and that the City enforced an unlawful traffic citation quota. (See id. ). Plaintiff contradicted the City, Chief Velazquez, and Mayor Hernandez's position the City never had an unlawful traffic citation quota. (See id. ). Plaintiff made clear that on multiple occasions he was ordered to discipline Officer Iglesias and other officers for their failures to meet the quota. (See id. ¶ 21). Defendants retaliated against Plaintiff for his involvement and participation in the deposition. (See id. ¶ 22).
In September 2017, the police department underwent a bidding process for shift location assignments. (See id. ¶ 23). Plaintiff attempted to select a shift assignment through the bidding process but was unable to. (See id. ). A junior sergeant subordinate to Plaintiff received Plaintiff's shift assignment despite Plaintiff's seniority. (See id. ).
Plaintiff was subsequently reassigned to a new location. (See id. ). This reassignment resulted in significant hardship because he was a new father and needed a shift assignment closer to home. (See id. ¶ 24). Plaintiff wrote his supervisor complaining about the new assignment and requesting a transfer back to his original assignment. (See id. ). Plaintiff's request went unanswered. (See id. ). In September 2018, Plaintiff was transferred back to his preferred assignment. (See id. ¶ 25).
In March 2019, Plaintiff was pulled from active duty, and Chief Velazquez recommended he be terminated. (See id. ¶ 26). The City cited (1) Plaintiff's tardiness on two occasions and his failure to document same; (2) and Plaintiff's failure to document hours spent at Hialeah police and fire stations, which related to his two incidents of tardiness. (See id. ¶ 27). According to the City, Plaintiff failed to supervise his subordinates while he remained at the police and fire stations. (See id. ).
In June 2019, Chief Velazquez recommended Plaintiff for termination. (See id. ¶ 28). On July 25, 2019, Plaintiff attended a meeting with Mayor Hernandez to discuss potential discipline. (See id. ¶ 29). Despite only receiving minor disciplinary actions and being next in line for promotion to lieutenant, Mayor Hernandez terminated Plaintiff's employment on July 30, 2019. (See id. ¶¶ 30–32). Plaintiff claims retaliation was the real reason behind his termination. (See generally id. ).
Plaintiff points to the treatment of multiple officers who were not terminated or disciplined even though those officers engaged in the same or more egregious violations than Plaintiff. (See id. ¶ 33). Plaintiff also points to his employee performance appraisals. (See id. ¶¶ 34–35). In his 2017-2018 appraisal, Plaintiff's work was described as above average, and he was considered a professional and responsible supervisor who was available and willing to assist and guide his subordinates. (See id. ¶ 34). Similarly, in 2018-2019, Plaintiff's appraisal reflected his work was excellent; he was attentive to his radio; he took paternity leave from October 2018 to January 2019; and he was relieved from duty in March 2019. (See id. ¶ 35).
On October 11, 2019, Plaintiff filed his Complaint asserting three claims: Florida whistleblower retaliation claim against the City (Count I) (see id. ¶¶ 39–47); First Amendment retaliation claim, brought under 42 U.S.C. section 1983, against the City and the individual Defendants (Count II) (see id. ¶¶ 48–57); and wrongful termination in violation of section 92.57, Florida Statutes against the City (Count III) (see id. ¶¶ 58–68). The City moves to dismiss the claims against it. (See generally Mot.).
The individual Defendants filed separate answers and affirmative defenses. (See Def. Sergio Velazquez's Answer & Affirmative Defenses [ECF No. 27]; Def. Carlos Hernandez Answer & Affirmative Defenses [ECF No. 25] ). Rather confusingly, the City includes the following request in its Motion: "[T]he City and Mayor request that this Court dismiss all claims, and because amendment would be futile, dismiss all claims with prejudice." (Mot. 3 (alteration and emphasis added)). Mayor Hernandez filed his Answer and Affirmative Defenses the same day as the City's Motion. (See Def. Carlos Hernandez Answer & Affirmative Defenses). "[B]ecause a responsive pleading — an answer — ha[s] been filed, under the plain language of Rule 12(b), a motion to dismiss ... [is] inappropriate." Skrtich v. Thornton , 280 F.3d 1295, 1306 (11th Cir. 2002) (alterations added). Mayor Hernandez has not moved to join the Motion nor would it be appropriate given his responsive pleading. The Court thus only addresses Plaintiff's claims against the City.
II. LEGAL STANDARD
"To survive a motion to dismiss [under Rule 12(b)(6) ], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (alteration added) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Although this pleading standard "does not require ‘detailed factual allegations,’ ... it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (alteration added) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). Pleadings must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). Indeed, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).
To meet this "plausibility standard," a plaintiff must "plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937 (alteration added) (citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). "The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss." Sinaltrainal v. Coca-Cola Co. , 578 F.3d 1252, 1261 (11th Cir. 2009) (citation omitted), abrogated on other grounds by Mohamad v. Palestinian Auth. , 566 U.S. 449, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012).
When reviewing a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and take the factual allegations therein as true. See Brooks v. Blue Cross & Blue Shield of Fla., Inc. , 116 F.3d 1364, 1369 (11th Cir. 1997) (citing SEC v. ESM Grp., Inc. , 835 F.2d 270, 272 (11th Cir. 1988) ).
III. DISCUSSION
The City argues Counts I and II must be dismissed because Plaintiff fails to state a claim under the Florida Whistleblower's Act and for First Amendment retaliation under 42 U.S.C. section 1983. The Court addresses each argument in turn.
The City also moves to dismiss Count III on the basis of sovereign immunity. (See Mot. 14–19). Plaintiff agrees Count III should be dismissed. (See Resp. 3 ("Plaintiff concedes that sovereign immunity appears to be a bar to relief under Fla. Stat. [section] 92.57 and, thus, does not object to the Court granting Defendant's motion as to Count III." (alteration added))). The Court thus only addresses Counts I and II.
A. Count I: Florida Whistleblower's Act ("FWA")
The City raises two principal arguments in support of its request for dismissal of Plaintiff's FWA claim. First, the City contends Plaintiff fails to adequately allege a causal connection between the protected activity he engaged in and his subsequent termination. (See Mot. 4–7; Reply 1–4). Second, the City contends Plaintiff's election of remedies precludes Plaintiff from pursuing an independent FWA claim in court. (See Mot. 7–9; Reply 4–6).
The FWA prohibits state and local agencies from retaliating against an employee "who refuse[s] to participate in any adverse action prohibited by [ section 112.3187 ]." Fla Stat. § 112.3187(7) (alterations added). The FWA is "remedial and should be given a liberal construction." Irven v. Dep't of Health & Rehab. Servs. , 790 So. 2d 403, 405 (Fla. 2001) (citations omitted). To state a claim for retaliatory discharge under the FWA, Plaintiff must allege: "(1) he engaged in statutorily protected expression; (2) he suffered a materially adverse action of a type that would dissuade a reasonable employee from engaging in statutorily protected activity; and (3) there was some causal relation between the events." Batz v. City of Sebring , 794 F. App'x 889, 901, 2019 WL 6769671, at *10 (11th Cir. Dec. 12, 2019) (citations omitted); see Shaw v. Town of Lake Clarke Shores , 174 So. 3d 444, 446 (Fla. 4th DCA 2015) (setting forth elements of FWA claim (citation omitted)). The City challenges the causation element of Plaintiff's FWA claim, stating the Complaint reveals no causal connection between Plaintiff's termination — the alleged adverse action — and his refusal to participate in the claimed illegal activity — disciplining officers for not meeting the traffic citation quota. (See Mot. 4–7). Specifically, the City faults Plaintiff for not establishing a close temporal proximity between the protected activity and his termination. (See id. ). To this, Plaintiff explains the causal connection between the protected activity and termination is evidenced by the City's intervening retaliatory acts and other circumstantial evidence. (See Resp. 3–6). Plaintiff insists temporal proximity is but one of many circumstances he can rely on to sufficiently allege causation at the motion to dismiss stage. (See id. 4). The Court agrees with Plaintiff.
As to the first two elements — whether Plaintiff engaged in statutorily protected activity and suffered an adverse employment action — Plaintiff alleges: (1) Plaintiff engaged in protected activity by refusing to participate in adverse action prohibited by the FWA; and (2) Plaintiff's employment was terminated due to his refusal to participate. (See Compl. ¶¶ 40–41). The City does not dispute the sufficiency of Plaintiff's allegations as to these elements. (See generally Mot.).
"To establish a causal connection, a plaintiff must show that the decision-makers were aware of the protected conduct, and that the protected activity and the adverse actions were not wholly unrelated." Shannon v. Bellsouth Telecomms., Inc. , 292 F.3d 712, 716 (11th Cir. 2002) (internal quotations marks and citation omitted). The Court construes the causal link requirement broadly. See Pennington v. City of Huntsville , 261 F.3d 1262, 1266 (11th Cir. 2001) (citation omitted). A plaintiff may establish causation "by showing close temporal proximity between the statutorily protected activity and the adverse employment action." Thomas v. Cooper Lighting, Inc. , 506 F.3d 1361, 1364 (11th Cir. 2007) (citation omitted). And if there is no other evidence showing causation, the temporal proximity must be "very close." Id. (internal quotation marks and citation omitted); see also Drago v. Jenne , 453 F.3d 1301, 1308 (11th Cir. 2006) ("[I]n the absence of any other evidence of causation, a three and one-half month proximity between a protected activity and an adverse employment action is insufficient to create a jury issue on causation." (alteration added; citation omitted)).
Plaintiff alleges in January and June 2016, Chief Velazquez reprimanded him for refusing to discipline officers who did not meet the unlawful traffic citation quota — the protected activity. (See Compl. ¶¶ 16–17). The City does not dispute the decision-makers were aware of the protected conduct; instead, the City challenges the second prong — whether the protected activity and the adverse action are related. (See Mot. 6).
"The Eleventh Circuit has recognized the correctness of applying Title VII case law in actions brought under the FWA because Title VII is the federal equivalent of the FWA." Griffin v. Sun N' Lake of Sebring Improvement Dist. , 16-cv-14062, 2017 WL 3835878, at *3 n.3 (S.D. Fla. Mar. 23, 2017) (internal quotation marks and citation omitted).
The City asserts Plaintiff fails to present a prima facie case connecting his 2015 and 2016 refusals to discipline officers who did not meet the traffic citation quota and his July 2019 termination. (See Mot. 4–7). According to the City, Count I must be dismissed because the adverse action is too far removed from Plaintiff's protected activity. (See id. 6). Certainly, there is a nearly four-year gap between Plaintiff's alleged protected activity and his termination. But contrary to the City's insistence, temporal proximity is not the only basis for Plaintiff's retaliation claim.
As to causation, the City's Motion primarily — if not entirely — substantively relies on the extended time gap as the basis for dismissal. (See Mot. 4–7; see also id. 4 (beginning its discussion with the following title: "The lapse of years between Plaintiff's alleged protected activity and his termination is fatal to his ability to draw a causal connection between the two, as he is required to under the Whistle-blower Act." (block letters omitted))). But that is not the question before the Court; the question is whether Plaintiff sufficiently alleges the protected activity and adverse action are not completely unrelated. As explained, Plaintiff does so.
Plaintiff points to a series of retaliatory acts taken by the City and other circumstances to establish a causal link. See Boyland v. Corr. Corp. of Am. , 390 F. App'x 973, 974–75 (11th Cir. 2010) ("In the absence of close temporal proximity between the protected activity and the employer's adverse action, a plaintiff may be able to establish causation where intervening retaliatory acts commenced shortly after the plaintiff engaged in a protected activity." (citation omitted)). Plaintiff alleges: (1) in October and December 2015, he was disciplined for refusing to reprimand Officer Iglesias and for recommending Officer Iglesias's removal from his probationary action plan; (2) in January 2016, Plaintiff received a written reprimand from Chief Velazquez for refusing to discipline a subordinate officer who failed to meet the unlawful traffic citation quota; (3) in June 2016, Plaintiff again received a written reprimand from Chief Velazquez for refusing to discipline Officer Iglesias for his non-participation in the unlawful traffic citation quota; (4) the City retaliated against Plaintiff for his refusal to participate in the unlawful traffic citation quota; (5) in September 2017, Plaintiff was reassigned to a less desirable shift assignment; (6) in March 2019, Plaintiff was pulled from active duty and recommended for termination; (7) in June 2019, Chief Velazquez formally recommended Plaintiff for termination; (8) in July 2019, Mayor Hernandez terminated plaintiff; (9) Plaintiff had no disciplinary issues, save for minor infractions, prior to engaging in the protected activity; (10) Plaintiff was terminated even though he consistently received positive performance appraisals, including being commended for his leadership and quality of work; and (11) the City acted inconsistently given other officers committed the same or more egregious violations as Plaintiff and yet the other officers were not disciplined or terminated. (See generally Compl.).
These allegations raise a plausible inference of causation at the motion-to-dismiss stage. Although "a substantial delay between the protected expression and the adverse action may be fatal to a retaliation claim, it would be premature for the Court to dismiss Plaintiff's retaliation claim on this ground without the Parties having the benefit of discovery, as lack of temporal proximity only defeats a retaliation claim in the absence of other evidence tending to show causation." Matamoros v. Broward Sheriff's Office , No. 18-cv-62813, 2019 WL 4731931, at *4 (S.D. Fla. June 8, 2019) (internal quotation marks and citation omitted); see also id. (denying motion to dismiss despite substantial delay where the plaintiff alleged facts that could be considered other evidence of retaliation); El-Saba v. Univ. of S. Ala. , No. cv 15-00087, 2015 WL 5849747, at *15 (S.D. Ala. Sept. 22, 2015), report and recommendation adopted as modified , 2015 WL 5882977 (S.D. Ala. Oct. 7, 2015) (recommending denial of motion to dismiss despite two-year time gap between protected activity and termination, and noting "discovery might unearth evidence of retaliation such that at summary judgment or trial, the plaintiff will not have to rely heavily on the temporal proximity between protected conduct and adverse actions to prove her case." (internal quotations marks and citation omitted)).
The City only briefly addresses whether Plaintiff's allegations of retaliatory acts and other circumstances raise a plausible inference of causation, asserting the "alleged supporting circumstantial evidence is not enough overcome the extreme attenuation in time between the protected activity and the adverse action." (Reply 3). In doing so, the City relies entirely on attorney argument and cites no authority in support of its contention Plaintiff's other allegations are insufficient to establish a causal link at the motion-to-dismiss stage. (See id. 2–4). The City's Reply advances the following arguments: Plaintiff's circumstantial evidence is "weak"; and the extended temporal gap "corroborates the City's stated reasons for termination" and "negates the alleged circumstantial evidence." (Id. 2–4; see also Mot. 4–7).
The City directs the Court's attention to cases holding dismissal is warranted where an extended gap exists between the alleged protected conduct and the retaliatory act, absent other evidence . (See Reply 4). By way of example, the City cites Shabazz v. Morales , No. 17-cv-648, 2019 WL 4737585 (M.D. Fla. Sept. 27, 2019), where the court found an eight-month temporal gap "too remote to be attributable to a retaliatory motive" and did so because the plaintiff did not articulate a causal connection between the protected conduct and the adverse action. Id. at *6. Contrary to the City's insistence, the cited cases do not stand for the proposition Plaintiff is required to establish temporal proximity to state a claim for retaliation at the motion-to-dismiss stage. While temporal proximity is an appropriate consideration in the causation inquiry, the Court is not convinced it should dismiss Count I as a matter of law simply because of the extended temporal gap and the City's contention Plaintiff's circumstantial evidence is "weak."
"In deciding a motion to dismiss under [Rule] 12(b), a court must consider the legal sufficiency of the complaint, not the weight of evidence which might be offered at trial." Al-Ghena Int'l Corp. v. Radwan , No. 13-61557-Civ, 2014 WL 12729283, at *4 (S.D. Fla. Apr. 15, 2014) (alteration added; internal quotation marks and citation omitted)); see also Almendarez v. City of Hollywood , 0:16-cv-61175, 2016 WL 10540360, at *3 n.3 (S.D. Fla. Nov. 21, 2016) (refusing to weigh evidence at the motion-to-dismiss stage). The Court will not dismiss Count I on the basis of the reasons advanced by the City; the City's arguments are better suited for the trier of fact at trial.
The City next argues the FWA claim must be dismissed because of Plaintiff's election of remedies, citing sections 112.3187(11) and 447.401, Florida Statutes. (See Mot. 7–8). According to the City, Plaintiff is precluded from re-litigating his FWA claim because he previously elected to actively and affirmatively pursue the adverse action under the collective bargaining agreement between the union representing Hialeah police officers and the City. (See id. 8). In support, the City directs the Court's attention to Exhibit 1 to its Motion, titled "City of Hialeah Grievance Initiation." (Notice Filing Ex., Ex. 1, Grievance Initiation [ECF No. 26-1] (block letters omitted)).
Section 112.3187(11), Florida Statutes, states the FWA does "not diminish the rights, privileges, or remedies of an employee under any other law or rule or under any collective bargaining agreement or employment contract; however, the election of remedies in [section] 447.401 also applies to whistle-blower actions." Id. (alteration added).
Section 447.401, Florida Statutes, provides career service employees with various options to pursue grievances. A career service employee has "the option of utilizing the civil service appeal procedure, an unfair labor practice procedure, or a grievance procedure established under this section, but such employee is precluded from availing himself or herself to more than one of these procedures." Id. A grievance procedure established under this section involves "the interpretation or application of a collective bargaining agreement." Id.
The Court declines the City's invitation to consider its election-of-remedies argument on a motion to dismiss, especially given the scant record. The City's three-page "City of Hialeah Grievance Initiation " provides little (if any) guidance as to whether Plaintiff actively and affirmatively pursued a remedy under the collective bargaining agreement. (Grievance Initiation (emphasis added)). What is more, the City cites no authority supporting its position Plaintiff's initial grievance filing warrants dismissal of his FWA claim. See City of Jacksonville, Jacksonville Sheriff's Office v. Cowen , 973 So. 2d 503, 509 (Fla. 1st DCA 2007) (collecting section 447.401 cases and interpreting those cases "to mean that section 447.401 precludes resort to a second method for resolution of a labor dispute where the aggrieved employee has actively and affirmatively labored in the pursuit of a particular remedy with the demonstrable anticipation of achieving a result."); Depaola v. Town of Davie , 872 So. 2d 377, 382 (Fla. 4th DCA 2004) (plaintiff permitted to pursue independent civil action even though he submitted initial grievance because his employer refused to participate in the grievance process); Bass v. Metro Dade Cty. Dep't of Corr. & Rehab. , 798 So. 2d 835, 836 (Fla. 3d DCA 2001) (holding the plaintiff was not entitled to bring independent circuit court action after instituting and fully pursuing civil administrative remedies).
Plaintiff claims the City's position is "fatally flawed" for many reasons. (Resp. 6). Plaintiff first contends section 447.401 applies only in limited circumstances — namely, the interpretation and application of a collective bargaining agreement. (See id. 7). Plaintiff next claims section 447.401 does not mention a "civil suit in court to pursue a statutory remedy," and thus, he is not precluded from pursing the underlying FWA claim. (Id. 7). Plaintiff also argues his grievance addresses a completely distinct issue unrelated to the FWA claim. (See id. 8–9). Plaintiff's grievance addresses the issue of whether the City violated the collective bargaining agreement by terminating Plaintiff without proper cause, while the Complaint asks whether the City violated the FWA. (See id. 9). And finally, Plaintiff states the City's Exhibit supports his position section 447.401 is limited in scope. (See id. 10). Because the Court is unconvinced by the City's election-of-remedies argument at this juncture, it need not address Plaintiff's position nor express an opinion as to the merits of his arguments.
The City primarily relies on Taylor v. Public Employees Relations Commission , 878 So. 2d 421 (Fla. 4th DCA 2004). There, the court affirmed an order dismissing the employee's whistleblower complaint because the employee had affirmatively pursued a collective-bargaining grievance procedure through three steps. See generally id. Contrary to the City's insistence, Taylor does not stand for the proposition Plaintiff's initial grievance application precludes the present FWA claim. Nor do the City's selective quotations from Bresee v. School Board of Union County , No. 13-cv-1022, 2014 WL 12628615 (M.D. Fla. Feb. 10, 2014), persuade. See id. , report and recommendation adopted , No. 3:13-cv-1022, 2014 WL 12625972 (M.D. Fla. Mar. 20, 2014). In Bresee , the court simply discussed the interplay between sections 112.3187(11) and 447.401 and thereafter declined to expand section 447.401's election-of-remedies requirement to non-union members. See id. at *4.
In sum, Count I survives the City's Motion.
B. Count II: First Amendment Retaliation
Plaintiff asserts a First Amendment retaliation claim under section 1983 against the City. (See Compl. ¶¶ 48–57). "Retaliation against the exercise of First Amendment rights is a well-established basis for section 1983 liability." O'Boyle v. Sweetapple , 187 F. Supp. 3d 1365, 1370 (S.D. Fla. 2016) (citations omitted). Under the First Amendment, a government "employer may not retaliate against an employee for an employee's exercise of constitutionally protected speech." Cook v. Gwinnett Cty. Sch. Dist. , 414 F.3d 1313, 1318 (11th Cir. 2005) (citations omitted). To state a First Amendment retaliation claim, Plaintiff must allege: "(1) the speech involved a matter of public concern; (2) the employee's free speech interests outweighed the employer's interest in effective and efficient fulfillment of its responsibilities; and (3) the speech played a substantial part in the adverse employment action." Id. (citation omitted).
"Separate from the elements of a First Amendment retaliation claim, all plaintiffs who sue a municipality under [ section] 1983 must show that execution of the municipality's policy or custom caused the alleged injury." DeMartini v. Town of Gulf Stream , 942 F.3d 1277, 1307 n.21 (11th Cir. 2019) (alteration added; citing Monell v. Dep't of Soc. Servs. of New York , 436 U.S. 658, 694–95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) ; other citation omitted). "It is well established that a municipality may be held liable under [ section] 1983 only when the deprivation at issue was undertaken pursuant to city custom or policy, and not simply on the basis of respondeat superior ." Brown v. City of Fort Lauderdale , 923 F.2d 1474, 1479 (11th Cir. 1991) (alteration added; internal quotation marks and citations omitted). The City contends Plaintiff's claim fails because Plaintiff does not allege any municipal policy or custom. (See Mot. 11–12).
The City also argues: (1) Plaintiff cannot establish a causal connection between his protected speech and his subsequent termination (see Mot. 9–11); and (2) Plaintiff fails to allege his protected activity was a substantial motivating factor in the City's decision to terminate his employment (see id. 13–14). Because the Court finds Plaintiff fails to adequately allege a municipal policy or custom, it declines to address the City's alternative grounds for dismissal.
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A plaintiff has two methods to establish a city's policy: "identify either (1) an officially promulgated [city] policy or (2) an unofficial custom or practice of the [city] shown through the repeated acts of a final policymaker for the [city]." Grech v. Clayton Cty., Ga. , 335 F.3d 1326, 1329 (11th Cir. 2003) (alterations added; citations omitted). "Because a [city] rarely will have an officially-adopted policy of permitting a particular constitutional violation, most plaintiffs ... must show that the [city] has a custom or practice of permitting it and that the [city]'s custom or practice is the moving force [behind] the constitutional violation." Id. at 1330 (fifth alteration in original; internal quotation marks and citations omitted).
Under either theory, a plaintiff must show the city "has authority and responsibility over the governmental function in issue and must also identify those officials who speak with final policymaking authority for that local governmental entity concerning the act alleged to have caused the particular constitutional violation in issue." Knight through Kerr v. Miami-Dade Cty. , 856 F.3d 795, 819 (11th Cir. 2017) (internal quotations marks and citation omitted). To establish municipal liability, a plaintiff may show "the City's final policymakers acquiesced in a longstanding practice or custom which constituted the standard operating procedure of the City, or that a longstanding and widespread practice [was] deemed authorized by the policymaking officials because they must have known about it but failed to stop it," or "that the City's final policymakers adopted or ratified the unconstitutional conduct or decision made by a subordinate official." Smart v. City of Miami , 740 F. App'x 952, 961 (11th Cir. 2018) (alteration in original; internal quotation marks and citations omitted); see also DeMartini , 942 F.3d at 1307 n.21 (identifying ways a plaintiff may establish municipal liability (citation omitted)).
According to the City, the Complaint fails to allege a widespread practice, policy, or custom that was a moving force behind Plaintiff's termination. (See Mot. 11–12). The City states the section 1983 claim is based on Plaintiff's deposition testimony in Officer Iglesias's civil case, and one isolated incident is insufficient to impose municipal liability. (See id. 11).
Plaintiff insists the City had an unofficial custom or practice of retaliating against officers who failed to comply with and/or spoke out against unlawful practices. (See Resp. 10–11). Plaintiff states the Complaint identifies "at least one other officer" who was disciplined and suspended and describes Chief Velazquez and Mayor Hernandez's involvement in the retaliation. (Id. 12). Plaintiff claims these allegations clearly demonstrate "the final policymakers of the City were engaged in the repeated acts of retaliation." (Id. ). The Court disagrees.
Plaintiff contends paragraphs 11, 20, 22, 28–31, and 53 contain sufficient allegations to state a plausible claim for municipal liability. (See id. 11 (citing these paragraphs)). Plaintiff alleges: (1) Iglesias was subjected to retaliation in the form of disciplinary action and suspension after bringing attention to the City's unlawful traffic citation quota; (2) the City, Chief Velazquez, and Mayor Hernandez retaliated against Plaintiff for his involvement in Officer Iglesias's civil suit; (3) Chief Velazquez recommended Plaintiff for termination; (4) Mayor Hernandez terminated Plaintiff; and (5) during his deposition in Officer Iglesias's civil suit, Plaintiff contradicted Chief Velazquez and Mayor Hernandez's position the City did not enforce an unlawful traffic citation quota. (See Compl. ¶¶ 11, 20, 22, 28–31, 53).
Plaintiff's allegations are clearly deficient. "To establish the existence of a custom, the plaintiff must show a longstanding and widespread practice." Marantes v. Miami-Dade Cty. , 649 F. App'x 665, 672 (11th Cir. 2016) (internal quotation marks omitted; quoting Craig v. Floyd Cty. , 643 F.3d 1306, 1310 (11th Cir. 2011) ). Thus, "[a] single incident of a constitutional violation is insufficient to prove a policy or custom even when the incident involves several employees of the municipality." Craig , 643 F.3d at 1311 (alteration added). Rather, "considerably more proof than [a] single incident [is] necessary." City of Okla. City v. Tuttle , 471 U.S. 808, 824, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985) (alterations added).
Plaintiff does not allege other instances in which Chief Velazquez and Mayor Hernandez acted in a similar manner, and the Court refuses to infer repeated acts from the conclusory allegation "Iglesias was subjected to retaliation in the form of disciplinary action and suspension." (Compl. ¶ 11; see also id. ¶¶ 20, 22, 28–31, 53). Plaintiff has alleged no facts separate from the incident at issue and the conclusory allegation Iglesias was subject to retaliation to establish an unofficial custom or practice sufficient for municipal liability. See Tuttle , 471 U.S. at 823–24, 105 S.Ct. 2427 ("Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell , unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker."); see also Grider v. Cook , 590 F. App'x 876, 882 (11th Cir. 2014) (affirming dismissal where the plaintiff's allegations "involved only [the plaintiff] himself and not a widespread practice or custom" and were conclusory as to repeated acts (alteration added)).
Plaintiff's allegations fall woefully short of demonstrating the City's practice of retaliating against officers "constitute[s] the sort of occurrence that is obvious, flagrant, rampant and of continued duration that would establish a causal connection between actions of the supervising official and the alleged constitutional violation." Whitaker v. Miami-Dade Cty. , 126 F. Supp. 3d 1313, 1321 (S.D. Fla. 2015) (alteration added; internal quotation marks omitted; quoting Hartley v. Parnell , 193 F.3d 1263, 1269 (11th Cir. 1999) ).
Plaintiff's allegations of an unofficial policy or custom have a further deficiency. Plaintiff does not plead either the chief of police or mayor is the final policymaker of the City concerning the act alleged to have caused the constitutional violation; nor does the Complaint contain any allegation the chief of police or mayor endorsed an unofficial policy or custom. See Mitchell v. City of Bartow , No. 8:18-cv-1088, 2019 WL 7193878, at *3 (M.D. Fla. Dec. 26, 2019) (dismissing section 1983 claim where the plaintiff failed to plead either chief of police or vice-mayor was a final policymaker of the city concerning the act alleged to have been the constitutional violation).
Consequently, the claim in Count II against the City is dismissed without prejudice.
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED AND ADJUDGED that Defendant, the City of Hialeah's Motion to Dismiss Complaint [ECF No. 24] is GRANTED in part and DENIED in part as follows:
1. The Motion is GRANTED as to Counts II and III. Count II remains against the individual Defendants.
2. The Motion is DENIED as to Count I.
DONE AND ORDERED in Miami, Florida, this 15th day of January, 2020.