McCullars v. Maloy
Filing
24
ORDER denying 13 Defendant Grant Maloy's Motion to Dismiss. Defendant Grant Maloy, individually, shall answer the Complaint no later than April 16, 2018. Signed by Judge Paul G. Byron on 4/2/2018. (JRJ)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
B. STANLEY MCCULLARS,
Plaintiff,
v.
Case No: 6:17-cv-1587-Orl-40GJK
GRANT MALOY,
Defendant.
/
ORDER
This cause comes before the Court on Defendant Grant Maloy’s Motion to Dismiss
(Doc. 13), filed October 6, 2017. Plaintiff responded in opposition on November 6, 2017.
(Doc. 22). With briefing complete, the matter is ripe for review.
I.
BACKGROUND 1
This action centers on Defendant Grant Maloy’s (“Maloy”) termination of Plaintiff
B. Stanley McCullars’ (“McCullars”) employment with Seminole County, Florida, because
of an online post by McCullars. On April 4, 2016, McCullars was hired as Assistant
Financial Director for the Clerk of Court and Comptroller of Seminole County, Florida.
(Doc. 1, ¶ 9). At all times relevant to this action, Maloy was the Seminole County Clerk of
Court. (Id. ¶ 11).
Plaintiff’s online post was apparently precipitated by a March 16, 2017, press
conference held by Orange/Osceola County State Attorney Aramis Ayala (“Ayala”). (Id. ¶
1
This account of the facts is taken from the Complaint (Doc. 1). The Court accepts
these factual allegations as true when considering motions to dismiss. See Williams
v. Bd. of Regents, 477 F.3d 1282, 1291 (11th Cir. 2007).
14). At the press conference, Ayala announced that her office would not seek the death
penalty under any circumstances in any case. (Id.). Ayala’s statements received local and
national media coverage, triggered intense public commentary, and led Florida Governor
Rick Scott to reassign all capital cases previously assigned to Ayala to a different state
attorney. (Id. ¶ 15).
The social media post at issue was dispatched after 10:00 p.m. on Sunday, March
19, 2017. (Id. ¶¶ 17, 19). McCullars’ post (the “Post”) stated: “maybe she [Ayala] should
get the death penalty,” and “she should be tarred and feathered if not hung from a tree.”
(Id. ¶ 17). The next day, at 7:00 a.m., the Post was deleted. (Id. ¶ 19). However, before it
was deleted, someone had taken a screen image of the Post and shared it with other third
parties. (Id. ¶ 20). That same day, March 20, Maloy told McCullars that the Post “was
clearly a First Amendment issue,” and assured McCullars that his job was safe. (Id. ¶ 21).
Notwithstanding these assurances, McCullars was placed on administrative leave
approximately an hour later. (Id. ¶ 22). On March 21, 2017, Maloy directed the human
resources manager to terminate McCullars based solely upon the Post. (Id. ¶ 23). After
his termination, McCullars was “instructed that he should provide a resignation letter,
which he did,” allegedly involuntarily. (Id. ¶ 26). At the time of the Post, Defendants did
not have a social media policy in place. (Id. ¶ 27).
The Complaint asserts two 42 U.S.C. § 1983 claims against Defendant Maloy (in
his official and individual capacities), alleging that Maloy violated McCullars’ First
Amendment rights when he terminated McCullars for engaging in protected speech.
2
II.
STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency of the plaintiff’s
complaint. To survive the motion, the complaint must “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
plausible on its face when the plaintiff alleges enough facts to “allow[] the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). The mere recitation of the elements of a claim is not
enough, and the district court need not give any credence to legal conclusions that are
unsupported by sufficient factual material. Id. District courts must accept all well-pleaded
allegations within the complaint and any documents attached thereto as true and must
read the complaint in the light most favorable to the plaintiff. Hunnings v. Texaco, Inc., 29
F.3d 1480, 1484 (11th Cir. 1994) (per curiam).
III.
DISCUSSION
Defendant Maloy moves to dismiss Count I based on qualified immunity. (Doc. 13).
His motion is due to be denied.
Qualified immunity protects government officials “from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). To receive qualified immunity, a government official “must first prove
that he was acting within the scope of his discretionary authority when the allegedly
wrongful acts occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal
quotation marks omitted). Plaintiffs do not dispute this first step. (Doc. 22, p. 5.)
“Once the defendant establishes that he was acting within his discretionary
3
authority, the burden shifts to the plaintiff to show that qualified immunity is not
appropriate.” Lee, 284 F.3d at 1194. To do so, the plaintiff must make a two-part showing.
The plaintiff must allege that the facts of the case, if proven to be true, would make out a
constitutional violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009); Beshers v.
Harrison, 495 F.3d 1260, 1265 (11th Cir. 2007). The plaintiff must also allege that the
constitutional right was “clearly established” at the time of the alleged misconduct.
Pearson, 555 U.S. at 232. Because qualified immunity provides a complete defense from
suit, “courts should ascertain the validity of a qualified immunity defense as early in the
lawsuit as possible.” Gilmore v. Hodges, 738 F.3d 266, 272 (11th Cir. 2013).
Courts are not required to conduct the qualified immunity analysis in any particular
order. Rather district courts are “‘permitted to exercise their sound discretion in deciding
which’ prong of the inquiry to address first.” Festa v. Santa Rosa Cnty. Fla., 413 F. App’x
182, 185 (11th Cir. 2011) (per curiam) (quoting Pearson v. Callahan, 555 U.S. 223, 236
(2009)). The Court will first address the “clearly established” question, before moving to
the constitutional violation analysis.
A.
“Clearly Established” Law
Maloy’s actions were prohibited by “clearly established” law. “For a constitutional
right to be clearly established, its contours ‘must be sufficiently clear that a reasonable
official would understand that what he is doing violates that right.’” Hope v. Pelzer, 536
U.S. 730, 739 (2002) (quoting Anderson v. Creignton, 483 U.S. 635, 640 (1987)). Even
in novel factual circumstances, “officials can still be on notice that their conduct violates
established law . . . .” Id. at 741 (rejecting a requirement that previous cases have
“materially similar” facts to give officials notice). Therefore, the Court must decide whether
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a reasonable official would understand that terminating McCullars’ employment because
of the Post would violate McCullars’ First Amendment rights.
The government generally enjoys “broad discretion in its employment decisions.”
Boyce v. Andrew, 510 F.3d 1333, 1341 (11th Cir. 2007) (per curiam). However, the First
Amendment affords public employees protection for certain kinds of speech. “[F]or a
government employee’s speech to have First Amendment protection, the employee must
have (1) spoken as a citizen and (2) addressed matters of public concern.” Id. A public
employee is only entitled to First Amendment protection when speaking as a citizen in
regards to a matter of public concern—thus the First Amendment is not implicated by
statements made pursuant to the employee’s official duties. Id. at 1342–43.
Where relevant speech is made as a citizen on a matter of public concern, courts
are to consult a balancing test to determine whether the First Amendment affords
protection. Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). “[T]he interests of the
government employee, as a citizen, in commenting upon matters of public concern must
be balanced with the interests of the State, as an employer, in promoting the efficiency of
the public services it performs through its employees.” Boyce, 510 F.3d at 1343 (alteration
accepted) (internal quotation marks omitted) (quoting Pickering, 391 U.S. at 568).
McCullars asserts that Maloy’s alleged actions were proscribed by “clearly
established” law. (Doc. 22, pp. 15–17). McCullars contends that the First Amendment
protects public employees from being “fired in retaliation for speaking on matters of public
concern except where the government’s interest in the proper functioning of the agency
outweighed the employee’s First Amendment rights[.]” (Doc. 22, p. 15 (citing Pickering v.
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Bd. of Ed., 391 U.S. 563, 568 (1967); Connick v. Myers, 461 U.S. 138 (1982); Rankin v.
McPherson, 483 U.S. 378 (1987); and Berdin v. Duggan, 701 F.2d 909 (11th Cir. 1983))).
Pickering and its progeny establish that a government entity “may not discharge
an employee on a basis that infringes that employee’s constitutionally protected interest
in freedom of speech.” Rankin, 483 U.S. at 383. Courts are to employ the Pickering
balancing test to discern whether a public employee’s speech is entitled to First
Amendment protection. Before balancing interests, the threshold question is whether the
employee’s speech may be “fairly characterized as constituting speech on a matter of
public concern.” Rankin, 483 U.S. at 384–85 (quoting Connick, 461 U.S. at 146)
(“Whether an employee’s speech addresses a matter of public concern must be
determined by the content, form, and context of a given statement, as revealed by the
whole record.”). 2 If so, Pickering instructs courts to balance the employee’s “interest in
making [the] statement against ‘the interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its employees.” 3 Id. at 388 (quoting
Pickering, 391 U.S. at 568). “In striking this balance, we consider these factors: ‘(1)
whether the speech at issue impedes the government’s ability to perform its duties
efficiently, (2) the manner, time, and place of the speech, and (3) the context within which
the speech was made.’” Stanley v. City of Dalton, 219 F.3d 1280, 1289 (11th Cir. 2000)
(quoting Bryson v. City of Waycross, 888 F.2d 1562, 1567 (11th Cir. 1989)). “The
2
See also id. at 387 (“The inappropriate or controversial character of a statement is
irrelevant to the question whether it deals with a matter of public concern.”).
3
See also id. at 384 (“This balancing is necessary in order to accommodate the dual
role of the public employer as a provider of public services and as a government entity
operating under the constraints of the First Amendment.”).
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disciplining of a public employee, for exercising his first amendment right to speak, clearly
contravenes established law.” Berdin v. Duggan, 701 F.2d 909, 913 (11th Cir. 1983).
McCullars cites various other principles to support his assertion that Maloy’s
conduct was proscribed by clearly established law. (Doc. 22, pp. 15–16). First, the First
Amendment protects speech regardless of its social worth or whether the idea
communicated is mainstream. Stanley v. Georgia, 394 U.S. 557, 564–66 (1969). Second,
the Supreme Court has declared that a government employee may not be discharged “for
any expression inconsistent with the goals of” their employing agency solely due to their
position as a government employee. Rankin, 483 U.S. at 391 n.17 (emphasis added).
Third, “Where . . . an employee serves no confidential, policymaking, or public contact
role, the danger to the agency’s successful functioning from that employee’s private
speech is minimal.” Id. at 391.
In conclusion, McCullars contends that “[a]ny reasonable government officer would
have known under reasoning of the cases discussed above” that Maloy’s actions were
constitutionally infirm. (Doc. 22, p. 16). Moreover, McCullars emphasizes that the
Complaint does not allege a colorable state interest in promoting efficient public service, 4
therefore, McCullars’ firing obviously violated his First Amendment rights. (Id. (citing
Tindal v. Montgomery Cty. Comm’n, 32 F.3d 1535, 1540 (11th Cir. 1994) (where the “state
interest half of the [Pickering] balance . . . is empty,” the plaintiff’s speech interests
outweighed the state interest in promoting efficient public service))).
4
Instead, the Complaint affirmatively alleges that “[t]he Post had not affected the
efficiency of the Defendant Clerk’s office, and no disruption of the workplace existed
that could justify terminating McCullars’ employment on account of McCullars
exercising his First Amendment right. (Doc. 1, ¶ 25).
7
Maloy offers Stanley v. City of Dalton, 219 F.3d 1280 (11th Cir. 2000), to rebut
McCullars’ contention that his termination was proscribed by clearly established law.
(Doc. 13, p. 16.) There, the Eleventh Circuit affirmed the principle that “because Pickering
requires a balancing of competing interests on a case-by-case basis, our decisions tilt
strongly in favor of immunity by recognizing that only in the rarest of cases will reasonable
government officials truly know that the termination or discipline of a public employee
violated ‘clearly established’ federal rights.” Stanley, 219 F.3d at 1298 (alteration
accepted).
Viewing the Complaint in the light most favorable to Plaintiff, this is allegedly one
of those “extraordinary” cases where “Pickering balancing would lead to the inevitable
conclusion that” McCullars’ firing was unconstitutional, precluding Maloy’s claim of
qualified immunity. See Dartland v. Metro. Dade Cty., 866 F.2d 1321, 1323 (11th Cir.
1989). The Complaint alleges that McCullars’ employment with Seminole County was
terminated after he engaged in speech on a matter of public concern, implicating the
Pickering balancing test. The government’s side of the Pickering balance is empty, as the
Complaint is devoid of allegations that the Post impacted on Defendant Maloy’s “need to
maintain loyalty, discipline[,] and good working relationships among those he supervises.”
See id. at 1324; Tindal, 32 F.3d at 1540. Defendant’s arguments to the contrary invoke
facts outside of the Complaint, and are therefore premature at this stage of the
proceedings.
On McCullars’ side of the Pickering balance is his interest in free expression. The
speech at issue touched on a matter of public concern, thus it “occupies the highest rung
of the hierarchy of First Amendment values, and is entitled to special protection.” Connick,
8
461 U.S. at 145 (internal quotation marks omitted). Although McCullars disputes Maloy’s
contention that the statements in the Post had racial connotations, 5 the Court has little
difficulty finding that the statements made in the Post were “rude and insulting,” lessening
his interest in making them to some degree. See Dartland, 866 F.2d at 1324.
Nonetheless, the First Amendment protects “vehement, caustic, and sometimes
unpleasantly sharp” speech. New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). 6
McCullars’ statements in the Post therefore merit First Amendment protection.
Indeed, it has been clearly established since at least 1986 “that a State may not
discharge an employee on a basis that infringes that employee’s constitutionally protected
interest in freedom of speech.” See Rankin, 483 U.S. at 383. Defendant’s invocation of
Stanley is inapposite. In Stanley, the result of a Pickering balancing was unclear, as both
the government and plaintiff had substantial interests to be weighed against each other.
219 F.3d at 1298. Here, the allegations of the Complaint do not reveal any government
interest affected by the Post, but do reveal McCullars’ interest in speaking as a citizen on
5
The Post suggested that “maybe [Ayala] should get the death penalty” and “she should
be tarred and feathered if not hung from a tree.” (Doc. 1, ¶ 17). Maloy’s Motion to
Dismiss characterizes the Post as offensive and “implicitly racist,” noting that Ayala is
a black woman. (Doc. 13, pp. 2, 13, 15). McCullars goes to great lengths to
demonstrate that “tar and feather” is an olden figure of speech that lacks racial
connotations. (Doc. 15, p. 22 n.3). Tellingly, he spends less time tracing the history
and evolution of the “hung from a tree” statement. Notwithstanding the obvious racial
connotations of that statement, McCullars is correct that the Complaint does not allege
Ayala’s race, so the Court will save a more searching analysis of the Post for another
day.
6
See also Bond v. Floyd, 385 U.S. 116, 136 (1966) (“Just as erroneous statements
must be protected to give freedom of expression the breathing space it needs to
survive, so statements criticizing public policy and the implementation of it must be
similarly protected.”).
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a matter of public concern. Accordingly, McCullars has met his burden of pleading that
Maloy’s conduct was proscribed by clearly established law.
B.
Constitutional Violation
Having resolved the “clearly established” prong in favor of McCullars, the Court
has little difficulty finding that the Complaint alleges a constitutional violation. See
Pearson v. Callahan, 555 U.S. 223, 232 (2009). To state a claim for unconstitutional
“retaliation for protected speech in violation of the First Amendment,” a complaint must
satisfy a four-part test. See Bryson v. City of Waycross, 888 F.2d 1562, 1565–66 (11th
Cir. 1989). The Complaint states a plausible claim for retaliation in contravention of the
First Amendment.
The first part of the Bryson test asks “whether [McCullars’] speech may be ‘fairly
characterized as constituting speech on a matter of public concern.’” See Tindal, 32 F.3d
at 1539 (quoting Bryson, 888 F.2d at 1565). The Complaint sufficiently alleges that the
Post constituted speech on a matter of public concern. (Doc. 1, ¶¶ 14–18). The second
part of the Bryson test demands a Pickering balance, asking “whether [McCullars’]
interest in h[is] speech . . . outweighed the state’s interest in promoting efficient public
service.” See Tindal, 32 F.3d at 1540 (quoting Bryson, 888 F.2d at 1565). As discussed
more fully above, the Complaint adequately alleges that the Pickering balancing test
favors McCullars. The third and fourth parts ask whether McCullars’ speech “played a
substantial role in” his firing, and whether Maloy “has demonstrated that he would have
terminated [McCullars] regardless of” his protected speech, respectively. See Tindal, 32
F.3d at 1540. Accepting the allegations of the Complaint as true, McCullars has likewise
met these requirements. (Doc. 1, ¶¶ 35–39).
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IV.
CONCLUSION
For the aforementioned reasons, it is ORDERED AND ADJUDGED that
Defendant Grant Maloy’s Motion to Dismiss (Doc. 13) is DENIED. Defendant, Grant
Maloy, individually, shall answer the Complaint no later than April 16, 2018.
DONE AND ORDERED in Orlando, Florida on April 2, 2018.
Copies furnished to:
Counsel of Record
Unrepresented Parties
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