WILLINGHAM v CITY OF VALPARAISO FLORIDA
ORDER GRANTING IN PART AND DENYING IN PART JUDGMENT AS A MATTER OF LAW : The Citys motion for judgment as a matter of law, ECF Nos. 303 - 305 , is GRANTED in part and DENIED in part. The City is entitled to judgment as a matter of law on Mr.Willinghams political association claim. The verdict in favor of Mr.Willinghams frees speech claim stands. Signed by JUDGE MARK E WALKER on 3/19/2015. (dac)
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
MATTHEW JAMES WILLINGHAM,
Case No. 3:11cv542-MW/CJK
CITY OF VALPARAISO,
ORDER GRANTING IN PART AND DENYING IN PART
JUDGMENT AS A MATTER OF LAW
This is a civil rights case. Plaintiff Matthew Willingham sued the City of
Valparaiso for discharging him in retaliation for exercising his First Amendment
rights. Mr. Willingham specifically alleges that City Mayor John Arnold fired him
because he expressed constitutionally protected speech and for his political
After Mr. Willingham was fully heard at trial and before the case was
submitted to the jury, the City moved for judgment as a matter of law on various
issues. ECF No. 289 at 145.1 The motion was denied and the jury returned both
counts in Mr. Willingham’s favor.
The City now renews its motion for judgment as a matter of law or, in the
alternative, motion for a new trial. ECF Nos. 303-305. After considering the
parties’ arguments, the motion is granted in part and denied in part.
In May 2006, Mr. Willingham was hired as Police Captain by the City’s
police department. See ECF No. 291 at 76; ECF No. 290 at 236. His job
responsibilities included enforcing certain City codes. ECF No. 291 at 83-84. No
one, not even Mayor Arnold, has ever disputed that Mr. Willingham overall was a
Mr. Willingham concurrently owned and operated a personal seafood
business, “Willingham Seafood.” The shop was a local watering hole where
townsfolk, including various City employees and officials, would purchase food
and often discuss City politics. See, e.g., ECF No. 290 at 297.
Among them was Douglas Wyckoff, the City Attorney. He and Mr.
Willingham were friends until they had a falling out when Mr. Willingham
The City technically moved for a “directed verdict.” ECF No. 289 at 145. This
constitutes a motion for judgment as a matter of law. See Fed. R. Civ. P. 50 advisory
committee’s note to 1991 amendment.
This is a summary of the pertinent facts in the light most favorable to Mr. Willingham,
the nonmoving party.
informed him that he was no longer welcome at Willingham Seafood. Mr.
Willingham accused him of having a drinking problem. The City Attorney would
later become Mr. Willingham’s enemy.
Commissioner Brent Smith was another regular at Willingham Seafood. Id.
He and Mr. Willingham were close friends. This was well known. Commissioner
Smith disagreed with the Mayor on various issues. Constantly challenging Mayor
Arnold produced what Commissioner Smith described as a “strained” relationship.
Id. at 291.
Commissioner Smith intended to dethrone Mayor Arnold. After an
unsuccessful bid for mayor in 2006, he ran again in March 2010. Id. at 290.
Commissioner Smith announced his candidacy sometime in the fall of 2009. Mr.
Willingham failed to show that this announcement occurred before he was
terminated. Mayor Arnold, for his part, acknowledged that he assumed that
Commissioner Smith would likely run against him and that Mr. Willingham
supported him. See ECF No. 289 at 130-31. There is no evidence, however, that
Mayor Arnold was aware that Commissioner Smith officially announced sometime
in fall 2009. See ECF No. 290 at 316-17.
There also is no evidence that prior to his termination, Mr. Willingham
actively campaigned and supported Commissioner Smith in the 2010 mayoral race.
Commissioner Smith, for example, testified that in spring 2008 he hosted a
political rally for which he used Willingham Seafood’s catering services. Id. at
339-341. This rally took place more than a year and a half before Mr. Willingham
was disciplined and was completely unrelated to the mayoral race. See id. at 34344. At the time of his termination, Mr. Willingham’s “participation” in
Commissioner Smith’s campaign was limited to discussing political issues at
Willingham Seafood. Additionally, there is no evidence that Mayor Arnold was
aware of any active participation by Mr. Willingham in Commissioner Smith’s
The City hired Carl Scott as City Administrator in 2009. ECF No. 288 at
25-26. He revamped code enforcement in the City, setting out to bring the City
into compliance with state regulations. His task included assessing the proper
zoning of properties in the City and filing a report.
City Administrator Scott also sought to enforce certain previously
unenforced City codes. Id. at 27-31. At the time, the City’s police was partially
responsible for code enforcement.3 ECF No. 291 at 83. On October 4, 2009, Mr.
Willingham, as Captain, met with Chief of Police Joe Hart and City Administrator
Scott to discuss a list of pending building code violations. City Administrator
Scott wanted Mr. Willingham to enforce certain codes. ECF No. 288 at 32. Mr.
The police generally did not inspect buildings. Instead, they responded to complaints
about ordinance violations. Violations of some codes, such as those related to electrical systems,
were outside their purview. When citizens lodged complaints concerning those codes, the City
would outsource its response.
Willingham expressed reservations about both the use of police to inspect property
for building code violations and the sudden enforcement of previously unenforced
code provisions against existing businesses. The three agreed to take the issue to
the City Commission at its upcoming meeting. ECF No. 291 at 124.
The next day, October 5, 2009, City Administrator Scott gave Mr.
Willingham a letter citing his seafood business for multiple code violations. See
id. at 95-96; ECF No. 288 at 39-45 (describing the alleged violations). This added
a dimension to Mr. Willingham’s perception of the code enforcement strategy
proposed by City Administrator Scott. Following the citation, Mr. Willingham
counted himself among the businesses he felt were subject to the sudden and unfair
application of previously unenforced code provisions.
Mr. Willingham attended a City Commission meeting on October 12, 2009.
See Mr. Willingham’s Trial Ex. 46. During the Commission’s discussion of a
pending resolution to designate Carl Scott as a “code enforcement officer,” Mr.
Willingham asked for an opportunity to address the Commission. Mr. Willingham,
who went in plain clothes, identified himself as a business owner and provided the
address of Willingham Seafood. He did not attend as “Captain Willingham,” nor
did he speak on behalf of the police department. See id.
Mr. Willingham started out by explaining that he did not think the City
Administrator should be given enforcement responsibility. He then discussed his
own negative experiences with the City Administrator acting as code enforcer. He
concluded by offering his general concerns with empowering the City
Administrator with code enforcement authority. See id.
Mr. Willingham testified that he addressed the Commission because he was
“concerned about the aggressive approach that [City Administrator Scott] was
about to take on a bunch of businesses in [the City].” ECF No. 291 at 97. He
believed that widespread citations like the one against Willingham Seafood would
“have a major financial impact in [the] community.” Id. Although Mr.
Willingham referenced his own citation as an example in his message to the
Commission, his overarching objection was to enforcement actions against
businesses within the City.
In a letter dated October 14, 2009, Mayor Arnold informed Mr. Willingham
that he was “considering” his termination. Then, by letter dated October 28, 2009,
Mayor Arnold terminated Mr. Willingham, stating that Mr. Willingham’s code
violations constituted “illegal conduct” and that his conduct was “even more
shocking and abhorrent given [his] employment as a Captain in the Valparaiso
Police Department in charge of Code Enforcement.” Mr. Willingham’s Trial Ex.
39, at 2. Mayor Arnold concluded by telling Mr. Willingham that he had the right
to appeal the termination, which he did.4 Id. at 3.
Mr. Willingham attempted to have his termination reviewed by the City
Commission on November 9, 2009. See Mr. Willingham’s Trial Ex. 48. On the
day’s agenda was a resolution to reinstate Mr. Willingham. Commissioner Brent
Smith, who had placed the item on the agenda, introduced the issue and confronted
Mayor Arnold about the termination. Commissioner Smith specifically asked the
Mayor why he unilaterally discharged Mr. Willingham, as opposed to letting Chief
Hart handle the issue. See id.
The Mayor explained that the City Charter gave him authority over police
department personnel problems and that he had “discharged” that duty. Mayor
Arnold also stated that it was improper to discuss the merits of the termination
because Mr. Willingham had appealed the matter internally. City Attorney
Wyckoff reinforced the Mayor’s position and advised the Commission that
because Mr. Willingham “opted” to pursue an appeal through the internal
grievance process, it would be “inappropriate” to discuss the termination. Both the
Mayor and the City Attorney thus took the position that appealing through the
Mr. Willingham initially appealed Mayor Arnold’s decision through the police
department’s internal grievance process. As this Court repeatedly noted on the record, it is
unclear whether the internal grievance process applies to decisions made by the Mayor pursuant
to his authority under the City Charter.
internal grievance process and directly to the Commission were mutually exclusive
Mr. Willingham, from the gallery, exclaimed that he had attempted to appeal
the termination directly to the Commission. The Mayor responded that Mr.
Willingham’s appeal to the Commission was “denied” because he was responsible
for “personnel” actions. The Mayor, in other words, had also previously taken the
position—which he maintained at the meeting—that a direct appeal to the
Commission was unavailable to Mr. Willingham.5
Mr. Willingham’s attorney, in attempt to resolve the mutual exclusivity
problem, stood up and withdrew the appeal. In what amounts to nothing more than
a bait-and-switch, City Attorney Wyckoff then interjected and explained that since
the internal appeal had been withdrawn, there was nothing for the Commission to
review.6 Ignoring this comment, Commissioner Smith seized the opportunity and
moved, pursuant to the City Charter, to override the Mayor’s decision and reinstate
Mr. Willingham as Police Captain. Another commissioner seconded the motion.
As this exchange reveals, Mr. Willingham had previously invoked his right to appeal his
decision directly to the Commission with the Mayor. The Mayor, however, denied the direct
appeal on the basis that such appeal was unavailable. Mr. Willingham did not accept the Mayor’s
decision. He persisted in his assertion and went directly to the Commission.
To the extent there were allegations that the jury found in Mr. Willingham’s favor
solely because of City Attorney Wyckoff’s conduct, this Court notes that it gave the jury specific
instructions that the City could not be held liable for the actions of the City Attorney.
At this point, Mayor Arnold stated that the motion was not in order because
the City Charter did not apply to his decisions. Seeking clarification,
Commissioner Smith asked if Mayor Arnold was refusing to call his motion to
question. Mayor Arnold indeed was refusing. Then, using his power as chairman,
the Mayor began to move on to the next item.
At that moment, Mr. Willingham’s attorney interrupted and asked to be
recognized. The attorney, relying on the plain meaning of Article IV of the City
Charter, argued that Mr. Willingham was entitled to review by the Commission. In
response, City Attorney Wyckoff reiterated his position that Article IV of the City
Charter did not provide Mr. Willingham direct review of his termination with the
Commission. Mayor Arnold agreed and moved to the next item.
Under Federal Rule of Civil Procedure 50, judgment as a matter of law is
proper when “a reasonable jury would not have a legally sufficient evidentiary
basis to find for [a] party on [an] issue.” Although the evidence is viewed in the
light most favorable to the nonmoving party, that party must “put forth more than a
mere scintilla of evidence suggesting that reasonable minds could reach differing
verdicts.” Abel v. Dubberly, 210 F.3d 1334, 1337 (11th Cir. 2000).
Mr. Willingham seeks to hold the City liable for Mayor Arnold’s actions.
The City first retorts that it cannot, as a matter of law, be held liable for the actions
of Mayor Arnold. Second, the City contends that Mr. Willingham did not exercise
constitutionally protected speech. If Mr. Willingham’s speech is not protected, the
City reasons, firing him for it is not actionable under section 1983.
Finally, the City attacks the evidentiary basis for the verdict, maintaining
that Mr. Willingham failed to present sufficient evidence from which a reasonable
juror could conclude that Mayor Arnold terminated Mr. Willingham because he
exercised constitutionally protected speech and because of his political association
with Commissioner Brent Smith.7
The threshold issue is whether the City can be held liable for Mayor
Arnold’s termination of Mr. Willingham. Under section 1983, municipalities “may
be held liable only for the execution of a governmental policy or custom,”
Kamensky v. Dean, 148 F. App’x 878, 880 (11th Cir. 2005), and not simply
Notably, although the City did argue at the close of Mr. Willingham’s case-in-chief that
he failed to prove “each and every element of [his] cause of action,” ECF No. 289 at 145, the
City has not renewed a “sufficiency of the evidence” argument as to Mr. Willingham’s free
speech claim, compare ECF No. 304 (attacking only whether Mr. Willingham’s speech at the
October 12, 2009, City Commission meeting concerns a “matter of public concern”), with ECF
No. 305 (assailing the sufficiency of the evidence supporting each element of Mr. Willingham’s
freedom of association claim). This Court, out of an abundance of caution, nevertheless
addresses whether there was a legally sufficient evidentiary basis to find for Mr. Willingham on
his free speech claim.
because they employ a tortfeasor, see Monell v. Dep’t of Soc. Servs. of City of New
York, 436 U.S. 658, 691 (1978).
“Municipal liability . . . may be premised upon a single illegal act by a
municipal officer only when the challenged act may fairly be said to represent
official policy . . . .” Morro v. City of Birmingham, 117 F.3d 508, 510 (11th Cir.
1997). Thus, “liability may arise with regards to an employment decision, such as
a termination, provided that the decisionmaker possesses final authority to
establish . . . policy with respect to the action ordered.” Quinn v. Monroe Cnty.,
330 F.3d 1320, 1325 (11th Cir. 2003) (internal quotation marks omitted); see also
Gattis v. Brice, 136 F.3d 724, 725 n.2 (11th Cir. 1998) (“If a county official holds
final policymaking authority for the county in the subject area of the alleged
constitutional violation, that official’s decisions may constitute county policy.”).
A municipal employee generally is “considered a ‘final policymaker’ for
governmental liability purposes ‘only if his decisions have legal effect without
further action by the governing body, and if the governing body lacks the power to
reverse the . . . employee’s decision.’ ” Kamensky, 148 F. App’x at 880 (alteration
in original) (quoting Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1292
(11th Cir. 2004)). “A municipal official is not a final policymaker,” however,
“when his or her decisions are subject to meaningful administrative review.”
Maschmeier v. Scott, 269 F. App’x 941, 943 (11th Cir. 2008).
Accordingly, the inquiry focuses on whether there was “an actual
‘opportunity’ for ‘meaningful’ review.” Holloman, 370 F.3d at 1292; see also
Oladeinde v. City of Birmingham, 230 F.3d 1275, 1295 (11th Cir. 2000)
(emphasizing that there must be an actual “opportunity” for “meaningful
administrative review”). To make this determination, courts “look not only to
‘state and local positive law,’ but also ‘custom and usage having the force of
law.’ ” Holloman, 370 F.3d at 1292.
In this case, Mr. Willingham attempts to hold the City liable for Mayor
Arnold’s decision to terminate him. The City, in response, claims that Mr.
Willingham failed to allege in his amended complaint that Mayor Arnold had been
delegated final policymaking authority. See ECF No. 303 at 14. The City also
contends that Mayor Arnold is not the final policymaker because his employment
decisions were subject to review by the City Commission. Id. at 12.
As a preliminary matter, the argument concerning Mr. Willingham’s
purported failure to allege delegation is a nonstarter. The City essentially claims
that a failure to allege the specific theory of municipal liability—here, delegation to
a final policymaker—fails the Federal Rules of Civil Procedure’s pleading
As this Court will explain, this argument is meritless. This superfluous argument is
representative of both parties’ litigation strategy. This entire case is marred with redundant,
unnecessary filings that fail to advance the central issues.
The law does not support such a heightened pleading 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.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). In the municipal liability context, facts tailored to the specific
theory of liability are unnecessary so long as a reasonable inference can be drawn
from the allegations that “municipal policy or custom directly caused the
complained-of constitutional injury.” Edwards v. City of Kingston, No. 1:08-CV803 LEKRFT, 2010 WL 3761892, at *7 (N.D.N.Y. Sept. 20, 2010); see also
Barnhart v. Town of Parma, 252 F.R.D. 156, 162-63 (W.D.N.Y. 2008) (holding
that the plaintiffs’ complaint sufficed “[a]lthough [the] factual allegations . . . [did]
not readily reveal [the] theory for imposing municipal liability against the
The amended complaint contains sufficient facts from which the reasonable
inference can be drawn that the City’s policy or custom caused the alleged
violation. See ECF No. 77. Indeed, contrary to the City’s assertion, Mr.
Willingham’s factual allegations reveal a final policymaker theory of liability. For
instance, the amended complaint reads:
[T]he City Commission followed a practice of allowing its City
attorney to guide the Mayor in taking actions such that together they
set City policy in the [employment context]. The City Commission
often tacitly ratified or by inaction allowed City policy to be set by the
Mayor . . . .
Id. at 2 (emphasis added). From these facts, the City was on notice that Mr.
Willingham believed it liable for the actions of the Mayor, whom the City allowed
to set municipal policy. Mr. Willingham therefore sufficiently pled that Mayor
Arnold was the final policymaker for the City. In any event, the City tried the
issue by consent by filing several motions attacking municipal liability on the
merits. See, e.g., ECF No. 80.
This Court now turns to the substance of the dispute. The City can be held
liable if Mayor Arnold is a final policymaker in the employee-discipline context.
“State and local positive law,” as well as “custom and usage having the force of
law,” are dispositive of whether Mayor Arnold is a final policymaker. Holloman,
370 F.3d at 1292 (internal quotation marks omitted).
The City Charter is the starting point. It grants the Mayor general
supervisory powers over the City’s police department. Valparaiso, Fla., City
Charter art. VI, § 1, ECF No. 80-5 at 53. Such powers are subject to the City
Commission, which “at all times” has the “power to overrule any act of a
commissioner in carrying on his department” by a majority vote. Valparaiso, Fla.,
City Charter art. VI, § 1, ECF No. 80-5 at 44. Thus, the City Charter on its face
vests final power over employment decisions with the City Commission.
This codified authority is not in dispute. Mr. Willingham, for example,
concedes that Mayor Arnold’s employment decision “was theoretically subject to
review by the City Commission.” ECF No. 311 at 4. The parties instead disagree
on the effect of such authority.
The City would have this Court rest its decision solely on the Charter’s
allocation of power. It contends that because the City Charter authorizes the
Commission to overturn the Mayor’s employment decisions, the Commission, and
not the Mayor, is the final policymaker. ECF No. 303 at 12-14. Mr. Willingham,
in response, cites a line of Eleventh Circuit cases for the proposition that “the
existence, on paper, of a review mechanism does not prevent a municipal decisionmaker . . . from being deemed the final policymaker, with respect to a particular
decision.” ECF No. 311 at 3.
In Holloman, a high school principal summoned a student, Michael
Holloman, to his office for refusing to recite the Pledge of Allegiance. 370 F.3d at
1261. The principal decided to punish Holloman by requiring that he serve three
days’ detention before receiving his high school diploma. Id. “Since graduation
was [in less than three days], there was not enough time left in the school year for
Holloman to serve his detentions while still being able to receive his diploma on
graduation day.” Id. Rather than not receive his diploma, Holloman agreed to be
paddled as substitute punishment. Id.
On appeal, the Eleventh Circuit determined that the school board could be
held liable because the principal acted as a final policymaker in the discipline
context despite the existence of a “formal multi-step appellate process that was
theoretically available on paper.” Id. at 1293. The court notably reached its
conclusion by considering how the circumstances surrounding the principal’s
actions deprived Holloman of the opportunity for meaningful review.
Imposing a three-day detention, by itself, did not convert the principal into a
final policymaker. Had graduation not been looming, Holloman could have
employed the review process before serving his detention. This presumably would
have stripped the principal of final policymaking authority. However, the time it
would take to serve the detentions, coupled with the principal’s refusal to stay
them until after graduation, meant that Holloman could not, “as a practical matter,
take advantage” of the review process without some aspect of the punishment—
missing graduation—becoming irreversible. Id. Similarly, the alternative,
paddling, could not be undone with an ex post review by the school board. Id.
The codified review process in Holloman did not foreclose a finding that
Holloman lacked the opportunity for meaningful review. Here too, the City
Charter’s review mechanism is not dispositive. Rather, as Holloman teaches,
circumstances can convert an otherwise functional review process into one which
fails to provide an opportunity for meaningful review. See Maschmeier, 269 F.
App’x at 944 (explaining that to establish that a reviewing entity’s review is not
meaningful, the plaintiff “would need to show that the [entity] has defective
procedures, merely ‘rubber stamps’ the official’s decisions, or ratified the official’s
decision and improper motive”).
As a prefatory point, it is important to understand that Mr. Willingham’s
sole avenue for review was a direct appeal to the City Commission. In its motion
for judgment as a matter of law, the City does not argue that Mayor Arnold’s
decision was subject to review through the internal grievance process. See ECF
No. 303 at 16-17. This likewise was not the City’s position at trial. In fact, as this
Court previously explained on the record, Mr. Willingham arguably had no right to
appeal via the grievance process but was limited to seeking review by the City
Commission because Mayor Arnold terminated Mr. Willingham pursuant to his
powers under the City Charter. See ECF No. 149 at 4 n.3.
The proper analysis, therefore, is whether Mr. Willingham was deprived of
the opportunity for meaningful review set forth by the City Charter. The evidence
demonstrates that a defective execution of the City Charter’s procedures deprived
Mr. Willingham of the opportunity for meaningful review of his termination.
The Mayor first attempted to thwart review by instructing the Commission
that discussing Mr. Willingham’s termination would be improper in light of the
pending internal appeal. There is no question that Article IV of the City Charter
authorizes the Commission to review the Mayor’s personnel actions at any time.
Nowhere does that provision condition the Commission’s authority on there not
being a pending internal appeal. Nevertheless, Mr. Willingham acquiesced and
withdrew his internal appeal.9
This proved fruitless. Even after two commissioners moved to reinstate Mr.
Willingham and after Mr. Willingham’s attorney explained to the commissioners
why the plain reading of Article IV authorized review, the Mayor, undeterred,
refused to call a vote, closed discussion and moved to the next agenda item.
This is not a case where the Commission summarily rejected Mr.
Willingham’s appeal. Likewise, the commissioners did not willingly refrain from
voting. The commissioners instead either did not understand that they had the
power to review the Mayor’s decision—as they had been told by their attorney—
or, after the Mayor ignored the motion by some commissioners to reinstate Mr.
Willingham, felt powerless to force a vote. There is no way that Mr. Willingham
could have, “as a practical matter, take[n] advantage” of the review mechanism set
by the City Charter when both the Mayor, as chairman, and the City Attorney,10
through his legal advice, sabotaged the entire process. Holloman, 370 F.3d at 1293
Additionally, and viewed from a different angle, the review mechanism
itself is internally unworkable, at least as applied to actions by the Mayor. In
situations where the Commission is tasked with reviewing the Mayor’s decisions,
This should have resolved the purported obstacle to review erroneously conjured by the
Mayor and the City Attorney.
See generally Mr. Willingham’s Trial Ex. 48 passim.
the Charter positions the perpetrator as chairman of the reviewing entity and allows
him to avoid review by directing the Commission’s procedures.11 See Valparaiso,
Fla., City Charter art. IV, § 8, ECF No. 80-5 at 45 (providing that a chairman pro
tem acts in the Mayor’s absence). Consequently, under either viewpoint, the
Mayor is insulated from review and Mr. Willingham is deprived of the opportunity
for meaningful review. This transforms Mayor Arnold into the City’s final
This conclusion is not at odds with the precedent cited by the City. The
Eleventh Circuit in Quinn held that a city official was not a final policymaker
because the official’s decision to terminate the plaintiff was “subject to meaningful
administrative review by the [reviewing entity].” 330 F.3d at 1326. Crucial to the
court’s holding, however, was that the plaintiff could “point to no cognizable
defect in the [review] proceedings” undertaken by the reviewing entity. Id.
In that case, the reviewing entity conducted a “full adversarial and
evidentiary hearing, which lasted three days and during which the parties were
each represented by counsel and had the opportunity to present and cross-examine
James Madison’s famous exhortation comes to mind: “[n]o man is allowed to be a
judge in his own cause, because his interest would certainly bias his judgment, and, not
improbably, corrupt his integrity.” The Federalist No. 10. (James Madison); see also The
Federalist No. 80 (Alexander Hamilton) (“No man ought certainly to be a judge in his own
cause, or in any cause in respect to which he has the least interest or bias.”); cf. Swann v.
Charlotte-Mecklenburg Bd. of Ed., 431 F.2d 135, 137 (4th Cir. 1970) (explaining that a federal
district judge may not sit on an appellate panel reviewing his own decision).
witnesses.” Id. Here, the proceedings before the City Commission are a far cry
from those in Quinn. From the moment the agenda item to reinstate Mr.
Willingham came up, Mayor Arnold denounced any attempt to review his decision
and quelled all discussion on the matter. As the chairman, he was in a unique
position to do so. Furthermore, given the City Attorney’s advice, the remaining
commissioners reasonably believed that they lacked the authority to review the
termination. Therefore, unlike in Quinn, Mr. Willingham has pointed to a
cognizable defect in the review proceedings.
Similarly, in Scala v. City of Winter Park, the Eleventh Circuit found that
two officials were not final policymakers because the city’s “governing documents
provide employees with an opportunity for meaningful administrative review of
termination decisions . . . and [because] there is no evidence that the [reviewing
entity] merely rubber-stamps the decisions of the appointing authorities.” 116 F.3d
1396, 1402 (11th Cir. 1997) (emphasis added). Because “rubber-stamping” is a
variety of procedural defect, Scala effectively also directs courts to examine the
execution of a codified review process.
When an entity “rubber-stamps” a decision, at the very least it masquerades
as a legitimate review. In the instant case, with the exception of the Mayor, who
put on his chairman mask, the Commission was not even able to put on a show.
The Mayor bluntly denied Mr. Willingham review and pronounced that Article IV
of the Charter—which the City now contends immunizes it from liability—did not
apply to his personnel decisions.
The City further claims that these purported deficiencies do not justify
liability because Mr. Willingham “could have invoked the equitable jurisdiction of
a State court to compel Mayor Arnold to call the motion for vote.” ECF No. 303 at
18. Stated differently, since the judiciary could have compelled review, Mr.
Willingham allegedly never lost the opportunity for meaningful review by the
This argument is unavailing for several reasons. First and foremost, the
Eleventh Circuit has explicitly stated that to divest a municipal official of final
policymaking authority, her decisions must be subject to meaningful
“administrative” review. See, e.g., Scala, 116 F.3d at 1401 (“[Eleventh Circuit] . .
. decisions have consistently recognized . . . that a municipal official does not have
final policymaking authority over a particular subject matter when that official’s
decisions are subject to meaningful administrative review.”). Judicial review
simply does not constitute administrative review. Had the Eleventh Circuit
intended judicial review to suffice, it would have said so.
It also makes no sense to insulate municipalities from liability because the
judiciary possesses the power to compel review. Under the delegation theory of
liability, the question is whether the municipality has delegated authority such that
an employee’s actions can be fairly said to represent official policy. A court order
compelling review of an action taken pursuant to delegated authority does not undo
the delegation at the time of the deprivation.
Moreover, because the judiciary exists independently from municipal
entities, a court order is not a municipality’s own “review” of the authority it has
delegated. Were that the case, courts could serve as the backstop to all delegation
of authority. That would invariably insulate municipalities from liability for the
actions of its final policymakers.
To conclude, the City of Valparaiso endeavors to insulate itself from liability
for the constitutional deprivations caused by Mayor Arnold. The City claims that
it is not liable for the Mayor’s unlawful termination of Mr. Willingham because the
City Charter vests final policymaking authority in the City Commission. On paper,
this is true. Here, however, the Charter’s process broke down and Mr. Willingham
was deprived of the opportunity for meaningful review by the Commission.
This breakdown occurred in several ways. First, despite their current
position, the City Attorney and the Mayor told members of the Commission that
they lacked the authority to review the termination. The evidence indicates that
some commissioners reasonably relied on their attorney’s advice and did not
understand that they in fact had the power to review the termination.
Second, the Mayor, in response to two commissioners that disregarded the
City Attorney’s advice, refused to call a vote on a motion to reinstate Mr.
Willingham. He procedurally barred the commissioners from reviewing his
actions. Thus, even if some commissioners believed that they had the power to
review the Mayor, they were unable to execute the review.
Finally, the Mayor’s actions alone did not deprive Mr. Willingham of the
opportunity for meaningful review. The Charter’s review process contains internal
deficiencies that also contributed to Mr. Willingham’s plight. The Mayor serves as
chairman of the Commission. He directs the Commission’s actions by controlling
its procedures. The Charter uniquely positions him to preclude review. Thus, the
codified review mechanism falters when applied to decisions by the Mayor.
This Court holds that Mr. Willingham lacked the opportunity for meaningful
review of his termination. Mayor Arnold therefore functioned as the City’s final
policymaker. Accordingly, the City can be held liable for his decision.
Mr. Willingham addressed the City Commission on October 12, 2009. He
alleges that Mayor Arnold fired him for doing so, in violation of his First
Amendment right to freedom of speech. The City contends that Mr. Willingham’s
comments are not constitutionally protected speech. See ECF No. 304 at 8. The
question is whether Mr. Willingham expressed constitutionally protected speech at
the City Commission meeting.
“[W]hether a public employee’s speech is constitutionally protected turns
upon whether the speech related to matters of public concern or to matters of
merely personal interest to the employee.” Ferrara v. Mills, 781 F.2d 1508, 1512
(11th Cir. 1986) (emphasis added). “A public employee’s speech involves a matter
of public concern if it can be fairly considered as relating to any matter of political,
social, or other concern to the community.” Cook v. Gwinnett Cnty. Sch. Dist., 414
F.3d 1313, 1319 (11th Cir. 2005) (quoting Connick v. Myers, 461 U.S. 138, 146
(1983)). To make this determination, courts must analyze the “content, form, and
context of a given statement, as revealed by the whole record.” Connick, 461 U.S.
The City claims that Mr. Willingham’s comments should be categorized as
either concerning City Administrator Scott’s citation of Willingham Seafood or
related to certain code violations that the City Administrator asked Mr. Willingham
to enforce in his capacity as Police Captain. ECF No. 304 at 10. Either category,
argues the City, places Mr. Willingham’s speech outside the ambit of the First
The critical evidence to determining whether Mr. Willingham’s comments
are constitutionally protected is a DVD containing footage of the October 12,
2000, meeting. See Mr. Willingham’s Trial Ex. 46.12 The recording reveals that
the City’s “categories” are a cramped take on Mr. Willingham’s speech.
In constructing its first category, the City overemphasizes the role played by
the citation against Willingham Seafood. Mr. Willingham did not focus solely on
the citation against his business. Rather, properly placed in context, Mr.
Willingham’s speech was an attempt to influence a political decision in part by
sharing a personal story. See ECF No. 166 at 3.
The citation against Willingham Seafood served as anecdotal evidence of the
City Administrator’s aggressive enforcement of City codes. Such aggressive and
pernicious tactics had been the focus of the commissioners’ debate just minutes
before. Mr. Willingham’s private interest in his business may have animated his
speech, but that does not mean the comments did not touch on a public concern.
At the very least, the intended effect—convincing the commissioners to vote down
the Mayor’s proposal—was certainly thought to be representative of the interests
of the greater business community.
The City’s second reason for why Mr. Willingham’s speech is not protected
is that it relates to a “conversation [Mr. Willingham had] with Carl Scott and Chief
Hart several days earlier in which they purportedly agreed to ‘table’ Carl Scott’s
code enforcement efforts and to seek guidance from the City Commission.” ECF
This is the same evidence the Court relied on at summary judgment when it held that
Mr. Willingham’s comments touched on a matter of public concern. See ECF No. 166.
No. 304 at 9. According to the City, Mr. Willingham’s purpose for addressing the
City Commission was to seek guidance on a matter related to his duties as a law
enforcement officer. This personal employment grievance, the City contends, is
not a matter of public concern.
This second category is misleading. First, Mr. Willingham repeatedly
emphasized his qualms as a private business owner, not a law enforcement officer.
His private interest in his business has nothing to do with the conditions of his
employment. Second, the City overlooks a key intervening event between the
October 4th gathering involving Messrs. Willingham, Scott and Hart and the
October 12th City Commission meeting—the citation issued against Willingham
Seafood. Even if the original stated reason for attending the meeting was work
related, Mr. Willingham’s motives surely changed after receiving his citation on
The desire to inquire about the tabled issue is at most one of various motives
potentially held by Mr. Willingham. As this Court previously explained,
subdividing Mr. Willingham’s speech is improper if the overarching message
touched on a matter of public concern. ECF No. 166 at 4. This Court holds that,
viewing the record as a whole, the “content, form and context” of Mr.
Willingham’s statements can be fairly considered as relating to a public concern.
The comments are therefore afforded the protections of the First Amendment.
At issue is whether Mr. Willingham presented sufficient evidence from
which a reasonable juror could conclude that Mayor Arnold terminated Mr.
Willingham because of his statements to the City Commission on October 12,
This Court instructed the jury that Mr. Willingham had to prove the
following facts by a preponderance of the evidence:
First: Mayor Arnold’s actions were “under color” of state law;13
Second: [Mr. Willingham] engaged in constitutionally-protected
speech when he, as a private citizen, made certain comments at the
October 12, 2009 City Commission meeting alleging sudden and
arbitrary code enforcement;
Third: Mayor Arnold discharged [Mr. Willingham] from employment;
Fourth: [Mr. Willingham’s] comments at the October 12, 2009 City
Commission meeting alleging sudden and arbitrary code enforcement
was a motivating factor in Mayor Arnold’s decision to discharge [Mr.
Fifth: [Mr. Willingham] suffered damages because of [Mayor
ECF No. 288 at 165-66.14
The parties stipulated to this element.
The Eleventh Circuit’s pattern jury instructions served as the template. See Pattern
Jury Instructions, Civil Cases, Eleventh Circuit § 4.1 (2013 revision).
Mr. Willingham unquestionably proved the second, third and fifth elements.
He presented footage of his speech at the October 12, 2009, City Commission
meeting and produced documents evincing his termination. The evidence also
demonstrated that Mr. Willingham suffered damages, including lost wages, due to
his allegedly unlawful termination.
The dispute principally concerns whether Mr. Willingham presented
sufficient evidence of causation. This Court finds that he did. For example, Mayor
Arnold terminated Mr. Willingham roughly two weeks after he spoke at the City
Commission meeting. It is well-established that such close temporal proximity
between the protected speech and adverse employment action constitutes
circumstantial evidence of causation. Cf. Constable v. Agilysis, Inc., No. 8:10-CV01778-EAK, 2011 WL 2446605, at *6 (M.D. Fla. June 15, 2011) (holding, in a
discrimination case, that a “close temporal proximity sufficient to survive summary
judgment” existed where the challenged employment action occurred one month
after the protected activity).
Other evidence suggested that Mayor Arnold, whom some witnesses
suggested was somewhat difficult, had developed a sense of authoritative
entitlement after holding office for nearly half a century. See ECF No. 289 at 151;
see also ECF No. 77 at 8. Designating City Administrator Scott as “code
enforcement officer” was partially Mayor Arnold’s idea. See Mr. Willingham’s
Trial Ex. 46 (showing the Mayor introducing, explaining and defending the
proposal). Mr. Willingham clearly opposed the Mayor’s proposal. It is therefore
not unreasonable to find that Mayor Arnold could have retaliated against anyone
who dared oppose his proposal.
Accordingly, this Court finds that Mr. Willingham furnished a legally
sufficient evidentiary basis by which a reasonable juror could find in his favor.
This Court must decide whether Mr. Willingham produced sufficient
evidence from which a reasonable juror could find that Mayor Arnold terminated
him due to his political association with mayoral contender Brent Smith. This
Court grants judgment as a matter of law on the political association claim for two
reasons. First, this Court concludes that at the time of his termination, Mr.
Willingham’s relation with Commissioner Smith was not a “political association”
within the meaning of the law. Second, even if it was, Mr. Willingham failed to
present sufficient evidence from which a reasonable juror could find that the
alleged political association motivated the termination. Before elaborating on this
ruling, however, this Court revisits the issue of whether Mr. Willingham
adequately pled a political association claim.
The truth is that Mr. Willingham’s political association claim always
teetered on the brink of inadequacy. The first time this Court looked at the
amended complaint, ECF No. 77, it determined that Mr. Willingham had not met
the Federal Rules’ pleading standards. ECF No. 149 at 6. But upon
reconsideration, this Court found that Mr. Willingham sufficiently pled that he
engaged in “expressive association” with Mayor Arnold’s political opponents,
which the Mayor knew about and for which the Mayor terminated him. See ECF
No. 180 at 3.
That ruling, admittedly, is nearly untenable. The most glaring deficiency in
Mr. Willingham’s amended complaint is his failure to plead that his support of
Commissioner Smith in the 2010 mayoral race was a “motivating factor” in Mayor
Arnold’s decision to terminate him. Indeed, the only way to raise the causation
element above the speculative level is to draw multiple inferences from separate
general allegations. See ECF No. 77 at 8, 16. Because multiple, stacked
inferences of that sort are unreasonable, this Court holds that Mr. Willingham
never sufficiently pled his political association claim.
To be clear, to the extent Mr. Willingham has alleged any political
association claim, it is that Mayor Arnold terminated him for supporting
Commissioner Smith for mayor in the 2010 campaign.15 Mr. Willingham never
The record contains references to the F-35 fighter jet. See, e.g., ECF No. 291 at 129.
For a while, the planned introduction of the F-35 at Eglin Air Force Base, located near the City
of Valparaiso, divided the community. There is no evidence to suggest that Mayor Arnold fired
Mr. Willingham because they disagreed on the topic. There likewise is no evidence that Mr.
Willingham voiced his support outside the confines of his seafood business. See id. (testifying
that Mr. Willingham’s involvement with the F-35 issue was limited to “conversation[s] at [his]
alleged that Mayor Arnold discharged him for additional political reasons nor
because of other expressive associations. See ECF No. 289 at 145-167 (describing
Mr. Willingham’s attempt to expand and reinvent his political association claim);
see also ECF No. 311 at 16-17 (arguing, in opposition to the City’s motion for
judgment as a matter of law, that the F-35 issue is intertwined with the political
Assuming Mr. Willingham adequately alleged his political association
claim, the City nonetheless is entitled to judgment as a matter of law. First, at the
time of his termination, Mr. Willingham was not politically associated with
Commissioner Smith. Second, even if he was, Mr. Willingham failed to establish
that it was a “motivating factor” in Mayor Arnold’s decision.16
The right of expressive association protects activities concomitant to the
substantive rights enshrined in the First Amendment. It is “the freedom to
associate for the purpose of engaging in activities protected by the First
deck”). Thus, in addition to Mr. Willingham failing to allege any expressive association claim
related to the F-35, this Court holds that Mr. Willingham’s support of the F-35, which was
limited to private conversations at his business, does not amount to an expressive association.
Even if it does, Mr. Willingham failed to present sufficient evidence from which a
reasonable juror could find that Mayor Arnold terminated Mr. Willingham because of his
different opinion. Notably, there is no evidence that Mayor Arnold knew of Mr. Willingham’s
position on the matter. The record only shows that the Mayor knew of Mr. Willingham’s
personal friendship with Commissioner Smith, who did hold opposing views.
The elements for the political association cause of action are identical to those of the
freedom of speech action, modified to the particulars of each claim. See Pattern Jury
Instructions, Civil Cases, Eleventh Circuit § 4.2 (2013 revision). Mr. Willingham specifically
failed to produce sufficient evidence of causation.
Amendment, such as speech, assembly, petition for the redress of grievances, and
the exercise of religion.” McCabe v. Sharrett, 12 F.3d 1558, 1563 (11th Cir.
There is absolutely no evidence that, prior to his termination, Mr.
Willingham associated with Commissioner Smith “for the purpose” of supporting
him in the March 2010 mayoral election. McCabe, 12 F.3d at 1563 (emphasis
added). Everyone testified that the two hung out, talked politics in the privacy of
Mr. Willingham’s business, and went out to lunch together. While they were
clearly were friends, the evidence depicts a personal “association” unrelated to
Commissioner Smith’s bid for mayor. It does not, in other words, establish a
Mr. Willingham at most demonstrated that he had previously associated with
Commissioner Smith to support his candidacy for office. Mr. Willingham cites,
for example, a political rally held at Willingham Seafood in March 2008 as
evidence of his political support. See ECF No. 311 at 21. Even if this rally
constitutes political association, the rally occurred a year and a half before the
Mayor terminated Mr. Willingham. Moreover, there is no evidence that in
providing these services Willingham Seafood intended it as anything other than a
business transaction. Given the enormous temporal gap, it would be unreasonable
to find that such association motivated the Mayor’s action, especially when the
rally in question had nothing to do with the 2010 mayoral race.
Even if Mr. Willingham’s association with Commissioner Smith is
protected, Mr. Willingham also failed to demonstrate a causal connection between
the alleged political association and the termination. The primary deficiency is a
lack of evidence that Mayor Arnold knew that Commissioner Smith was running
for mayor in March 2010 and that he and Mr. Willingham were actively
campaigning before October 28, 2009, when the Mayor terminated Mr.
Mr. Willingham elicited testimony from Mayor Arnold that he had assumed
that Commissioner Smith, “in all probability, intended to run” for mayor in March
2010. ECF No. 289 at 227. The Mayor also admitted that he assumed Mr.
Willingham was in Commissioner Smith’s “camp.” Id. at 128-131. Other than
that, the only other evidence is that Mayor Arnold knew that Mr. Willingham and
Commissioner Smith were friends. Because it is inconceivable that knowing the
identity of a political opponent and her supporters is enough to establish a causal
connection, this Court finds that a reasonable juror could not draw the highly
attenuated inference that Mayor Arnold discharged Mr. Willingham on the basis of
the alleged political association. Accordingly, the City is entitled to judgment as a
matter of law on Mr. Willingham’s political association claim.
The jury in this case found that Mayor Arnold of the City of Valparaiso fired
Mr. Willingham because of certain comments he made at a City Commission
meeting and because of his political association with the Mayor’s political
opponent. The City moved for judgment as a matter of law on several grounds.
The City contends that it cannot be held liable for the actions of Mayor Arnold
because he, unlike the City Commission, is not the City’s final policymaker. The
City also claims that Mr. Willingham did not express constitutionally protected
speech and that, as a result, his free speech action fails. Finally, the City maintains
that Mr. Willingham did not produce sufficient evidence from which a reasonable
juror could find either count in his favor.
This Court holds that Mayor Arnold acted as the final policymaker for the
City when he discharged Mr. Willingham. Critical to this holding, Mr.
Willingham did not have the opportunity for meaningful review of his termination
by the City Commission. This Court further concludes that Mr. Willingham made
constitutionally protected statements at the City Commission meeting held on
October 12, 2009, because the comments related to a matter of public concern.
Lastly, this Court determines that although there was sufficient evidence from
which a reasonable juror could find in Mr. Willingham’s favor on the free speech
claim, the same cannot be said for the evidence supporting the political association
claim. As to that claim, the City is entitled to judgment as a matter of law.
For these reasons,
IT IS ORDERED:
The City’s motion for judgment as a matter of law, ECF Nos. 303305, is GRANTED in part and DENIED in part.
The City is entitled to judgment as a matter of law on Mr.
Willingham’s political association claim. The verdict in favor of Mr.
Willingham’s frees speech claim stands.
SO ORDERED on March 19, 2015.
s/Mark E. Walker
United States District Judge
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