Gonzalez v. City of Hialeah
Order on Motion to Dismiss granting in part and denying in part 31 Motion to Dismiss. Signed by Judge Robert N. Scola, Jr on 8/9/2017. (lan)
United States District Court
Southern District of Florida
Frank Gonzalez, Plaintiff,
City of Hialeah, Defendant.
) Civil Action No. 17-20128-Civ-Scola
Order on Motion to Dismiss
This matter is before the Court on the Defendant’s motion to dismiss (ECF
No. 31). The Plaintiff Frank Gonzalez responded (ECF No. 39), and the Defendant
replied (ECF No. 20). After reviewing the fourth amended complaint, the parties’
arguments, the record, and legal authority, the Court grants the motion as to
Counts 1 and 2, and remands Counts 3, 4, and 5 to the Circuit Court for the
Eleventh Judicial Circuit of Florida in and for Miami-Dade County (ECF No. 31).
Gonzalez filed this action raising five counts against the Defendant, the City
of Hialeah (“City”). (Fourth Am. Compl., ECF No. 24.) Gonzalez alleges two federal
claims under 42 U.S.C. § 1983 for violations of the procedural due process clause
of the Fourteenth Amendment: (1) Count 1 for deprivation of employment; and (2)
Count 2 for deprivation of property interest in promotion eligibility. (Id. at 11–15.)
Gonzalez then alleges three state-law claims: (1) Count 3 seeks rescission and
cancellation of a settlement agreement; (2) Counts 4 and 5 raise claims for
violations of the Florida Constitution. (Id. at 15–24.)
Gonzalez served as a law enforcement officer for the City of Hialeah from
April 3, 2000, through April 16, 2007, when Gonzalez resigned. (Id. ¶¶ 12–13.)
The City reemployed Gonzalez on May 5, 2008, from a certified reemployment list
as a classified service personnel under Rule VIII, § 6(c) of the Hialeah Civil Service
Rules and Regulations (“the CSRR”), subject to a probationary period. (Id. ¶¶ 1920.) The City’s sworn police officers’ Collective Bargaining Agreement (“CBA”)1
The City attached some portions of the CBA to its motion to dismiss, and Gonzalez attached
additional portions of the CBA to his response. The Court may consider the CBA in ruling on the
motion to dismiss because it is central to Gonzalez’s claim and undisputed. See M.C. Dean, Inc. v.
City of Miami Beach, Florida, 199 F. Supp. 3d 1349, 1352 (S.D. Fla. 2016) (Altonaga, J.) (“In
addressing a Rule 12(b)(6) motion, the Court considers the allegations of the complaint, exhibits
attached or incorporated by reference, and exhibits attached to the motion to dismiss if they are
central to the plaintiff’s claim and undisputed.”); Crawford’s Auto Ctr., Inc. v. State Farm Mut.
Auto. Ins. Co., No. 614CV6016ORL31TBS, 2016 WL 3144103, at *1 (M.D. Fla. June 6, 2016)
(noting that this premise “logically extends to documents attached to a plaintiff’s response”)
(internal citation and quotations omitted).
defines the “probationary period” as “a period of one (1) year from the date of
swearing in by the Mayor, if the employee is previously certified by the State of
Florida, as a Police Officer . . . .” (Resp. Ex. 1 at 24, ECF No. 39.) Further, the
Charter of the City of Hialeah (“City Charter”) provides that the personnel board
must establish probationary periods for new employees of “not more than 12
months . . . or as otherwise provided in collective bargaining agreements.” (Fourth
Am. Compl. Ex. A at 40.)
In June or July 2008, while still in his probationary period, Gonzalez
applied to take the Sergeant’s exam to be given on October 27, 2008. (Fourth Am.
Compl. ¶ 30.) According to Rule V, § 8(b)(1) of the CSRR, eligibility for the exam
requires “4 years of continuous satisfactory employment in classified service as a
sworn police officer with the Hialeah Police Department.” (Id. Ex. C at 110.) The
City denied Gonzalez’s application to take the promotional exam, apparently
finding that Gonzalez was not an eligible candidate. (Id. ¶ 31.)
In August 2008, the City began an internal investigation of a matter
involving Gonzalez. (Id. ¶ 34.) That investigation culminated in November 2008 in
a disposition of “sustained.” (Id. ¶ 35–36; Id. Ex. I at 150.) Ultimately, on January
6, 2009, Gonzalez attended a pre-disciplinary meeting with the Chief of Police,
who recommended termination and placed Gonzalez on administrative leave with
pay pending a final determination from the City. (Fourth Am. Compl. Ex. E at
135–36.) Apparently upon Gonzalez’s inquiry, the City informed Gonzalez that
“the Mayor did not have to give a probationary employee a pre-disciplinary
meeting.” (Id. at 135.) Gonzalez alleges, however, that the City informed him that
he “did not have a right to a pre-disciplinary hearing with [the] Mayor . . . .”
(Fourth Am. Compl. ¶ 36.) The City terminated Gonzalez’s employment, effective
on January 9, 2009, informing him in a termination letter from the Mayor that
the “City has the right to discharge a probationary employee at any time, without
providing any explanation . . . .” (Id. Ex. F at 139.) The termination letter also
explained that “as a courtesy to you, I am notifying you that my decision was
derived, in part, based on what I consider to be your lapse of judgment relating to
the events and findings described in Professional Compliance Bureau
Investigation 2008-91.” (Id.)
2. Legal Standard
When considering a motion to dismiss under Rule 12(b)(6) of the Federal
Rules of Civil Procedure, the Court must accept all of the complaint’s well-pleaded
factual allegations as true, construing them in the light most favorable to the
plaintiff. Pielage v. McConnell, 516 F.3d 1282, 1284 (11th Cir. 2008). Under Rule
8(a)(2) of the Federal Rules of Civil Procedure, a pleading need only contain “a
short and plain statement of the claim showing that the pleader is entitled to
relief.” Though the Rule does not require detailed factual allegations, it does
require “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 (2009) (internal
citation and quotations omitted). "A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged." Id. (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 556 (2007)). "Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice." Iqbal,
556 U.S. at 678
A. Count 1: Deprivation of Employment without Procedural Due Process
In Count 1, Gonzalez claims the City violated 42 U.S.C. § 1983 when it
deprived him of his “right to procedural due process of law . . . by terminating
[his] legitimate employment property . . . without first providing Mr. Gonzalez a
meaningful pre-termination hearing and without providing Mr. Gonzalez a posttermination hearing.” (Fourth Am. Compl. ¶84.) The City asserts that Gonzalez
fails to state a claim as to Count 1 because Gonzalez had no property interest in
his employment. (Mot. at 4–5, ECF No. 31.)
A civil rights action under § 1983 requires the deprivation of a federally
protected right by a person acting under color of state law. 42 U.S.C. § 1983; Polk
County v. Dodson, 454 U.S. 312 (1981); Myers v. Bowman, 713 F.3d 1319, 1329–
30 (11th Cir. 2013); Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir.
2001). In order to state a claim, a plaintiff must establish (1) he was deprived of a
right secured by the Constitution and laws of the United States, and (2) the
alleged deprivation was committed under color of state law. 42 U.S.C. § 1983;
Dodson, 454 U.S. at 312; see Almand v. DeKalb County, Ga., 103 F.3d 1510, 1513
(11th Cir. 1997).
Gonzalez cannot state a § 1983 claim because he can allege no facts to give
rise to the deprivation of a Constitutional right based on the manner in which the
City terminated him from his position as a police officer. “Generally, a public
employee has a property interest in continued employment if state or local
ordinance in any way limits the power of the appointing body to dismiss an
employee.” Ross v. Clayton County, 173 F.3d 1305, 1307 (11th Cir. 1999)
(internal quotations omitted). Even so, and independent from limitations on the
power to dismiss, “probationary employees [typically] are thought to lack property
interests in their employment because they are ‘at will’ employees without a
legitimate claim of entitlement to continued employment.” Id. at 1308. Some
circumstances do exist, however, where a probationary employee “may
nevertheless enjoy a property interest in their employment.” Id. To determine
whether there is a property interest, the Court must look at the relevant state and
local rules “in their entirety.” Blanton v. Griel Memorial Psychiatric Hospital, 758
F.2d 1540, 1543 (11th Cir. 1985) (“The section governing probationary employees
was clearly designed to offer a lesser expectation of continued employment than
that offer to permanent employees.”).
Here, three documents contain the relevant local rules: (1) the CBA; (2) the
CSRR; and (3) the City Charter. Each distinguishes between employees in the
probationary period and employees who have completed the probationary period,
and each provides fewer rights to the former than the latter. See CSRR Rule VIII,
§ 4, and Rule X, §1 (Fourth Am. Compl. Ex. C at 118, 120); CBA art. 25, § 3.d
(Mot. Ex. A at 9); compare City Charter art. IV, § 4.07(b)(4)a.1 and a.2 with City
Charter art. IV, § 4.07(b)(4)a.3 (Fourth Am. Compl. Ex. A at 41). The CBA, the
CSRR, and the City Charter all include provisions that allow the City to terminate
probationary employees with or without cause.
Specifically, the CBA allows for termination of a probationary employee “as
provided by the [CSRR], with or without cause, by the City.” (Mot. Ex. A at 9.) The
CSRR states that a “probationary employee may be discharged . . . at any time
with or without cause and . . . has no civil service rights . . . .” (Fourth Am.
Compl. Ex. C at 118, 120.) The City Charter distinguishes between general
probationary employees, who may be terminated with or without cause, and
probationary employees hired from a certified reemployment list, who may be
terminated for cause after written notice. (Charter art. IV, § 4.07(b)(4)a.1 and a.2,
Fourth Am. Compl. Ex. A at 41.)
On the other hand, employees that have completed the probationary period
receive certain procedural entitlements not available to probationary employees.
For example, the CBA generally provides employees an expedited hearing process
after termination and an appeal process for suspensions. (CBA art. 25, § 3.c and
3.d, Mot. Ex. A at 9.) The CSRR requires a permanent employee to receive
“written notice with sufficient information to allow the employee to explain or
rebut the . . . removal . . . .” (CSRR Rule X, § 1, Fourth Am. Compl. Ex. C at 120.)
Finally, the Charter requires that a permanent employee receive “written notice
of . . . removal, together with reasons and effective date . . . .” (Charter art. IV,
§ 4.07(b)(4)a.3, Fourth Am. Compl. Ex. A at 41.) Five days after receipt of notice of
termination, the permanent employee “may appeal in writing to the personnel
board for a hearing.” Id. Then, “the personnel board shall set a public hearing
date for the employee or officer to appear and be heard . . . .”Id.
Thus, the “entirety” of the local rules clearly establishes “a lesser
expectation of continued employment” for probationary employees. Blanton, 758
F.2d at 1543. As a result, Gonzalez can only allege a legitimate interest in his
employment if he can allege that he was a permanent employee. Id., Ross, 173
F.3d at 1307.
Gonzalez argues that he was “not a probationary employee within the
meaning of the” CBA and the CSRR because the Mayor did not swear him in for
his reemployment––someone else performed the swearing in. (Resp. at 6–7.)
Therefore, according to Gonzalez, he already fulfilled his probationary period after
the Mayor swore him in during his first employment. (Id.)
Gonzalez’s argument contains several flaws. First, Gonzalez specifically
alleges that the City placed him in a probationary period upon reemployment in
2008. (Id. ¶ 20.) Next, neither logic nor the allegations in the Complaint support
that Gonzalez remained continually employed by the City after his first swearingin. Gonzalez alleges that he resigned on April 16, 2007, and became reemployed
on May 5, 2008. (Fourth Am. Compl. ¶¶ 13, 19.) Gonzalez cannot have remained
a sworn police officer after tendering his resignation in 2007, and certainly the
City could not have “reemployed” Gonzalez if he already was employed.
Further, Gonzalez also claims that the term “initial probationary period” in
Article 25, § 3.d of the CBA, refers to a probationary period upon Gonzalez’s
original employment in 2000. The City Charter plainly recognizes, however, that
an employee “appointed from the certified reemployment . . . list” will commence
employment in a probationary period. (Charter art. IV, § 4.07(b)(4)a.3, Fourth Am.
Compl. Ex. A at 41.) Gonzalez specifically alleges that he was
“reemployed . . . from a certified reemployment list . . . .” (Fourth Am. Compl.
¶ 19.) Notwithstanding any allegations or arguments in contradiction of the plain
language of the CBA, CSRR, and the City Charter, at the time of his termination
Gonzalez was a probationary employee without a legitimate claim of entitlement
to continued employment.
But even if Gonzalez somehow fell into that class of probationary employees
that might have a legitimate property interest in employment, see Ross, 173 F.3d
at 1307, Gonzalez’s § 1983 claim fails because he was not deprived of that right
without the process afforded by the local rules and regulations. See Zinermon v.
Burch, 494 U.S. 113, 125 (1990) (“In procedural due process claims, the
deprivation by state action of a constitutionally protected interest in ‘life, liberty,
or property’ is not in itself unconstitutional; what is unconstitutional is the
deprivation of such an interest without due process of law.”). Here, assuming
without deciding that the Charter—which provides the highest level of process
among the three relevant documents—controls the process allegedly due to
Gonzalez, that process requires nothing more than written notice. (Charter art.
IV, § 4.07(b)(4)a.2, Fourth Am. Compl. Ex. A at 41.) Gonzalez had no right to a
hearing and no right to any appeal to the personnel board. Further, Gonzalez
alleges that he received notice of his termination “through a letter . . . sent to
[him] by email.” (Fourth Am. Compl. ¶ 37.) What is more, Gonzalez attaches the
written notice to his Complaint. (Id. Ex. F at 139.)
Accordingly, the Court dismisses with prejudice Count 1 of the Complaint
for failure to state a cause of action.
B. Count 2: Deprivation of Property Interest to Promotional Eligibility
without Procedural Due Process of Law
Gonzalez alleges that the City deprived him of a “legitimate property
interest in taking the Sergeant Exam as an eligible candidate without first
providing [him] a fair and meaningful pre-denial hearing . . . .” (Fourth Am.
Compl. ¶ 92.) Again, in order for Gonzalez to state his second § 1983 claim, he
must allege that (1) he was deprived of a right secured by the Constitution and
laws of the United States, and (2) the alleged deprivation was committed under
color of state law. See 42 U.S.C. § 1983; Dodson, 454 U.S. at 312.
The City argues that Gonzalez cannot have a property interest in taking the
promotional exam for two interconnected reasons: (1) because courts generally do
not recognize a property interest in a promotion, much less a promotional exam;
and (2) because irrespective of whether such an interest exists, Gonzalez failed to
meet the eligibility requirements for taking the promotional exam. (Mot. at 8–9.)
Gonzalez contends that he has a property interest in taking the exam, even if he
does not have such an interest in the promotion itself. (Resp. at 11–12.) Gonzalez
further alleges that the City has allowed one other officer to take the exam
without meeting the eligibility requirements. (Id.)
As with Count 1, Gonzalez cannot state a § 1983 claim because he can
allege no facts to give rise to the deprivation of a Constitutional right based on the
City denying him access to the promotional exam. First, the Eleventh Circuit does
not recognize a general property interest in a promotion. Wu v. Thomas, 847 F.2d
1480, 1485 (11th Cir. 1988) (“[A] prospective promotion is not a property or
liberty interest protected by the fourteenth amendment.” (citing Doyle v.
University of Alabama in Birmingham, 680 F.2d 1323, 1326 (11th Cir. 1982))).
And certainly, the promotional exam at issue here only has value insofar as it
serves as a prerequisite to promotional eligibility. McMenemy v. City of Rochester,
241 F.3d 279, 287 (2d Cir. 2001) (“An examination is not an end in itself; it has
value only because it may lead to something valuable.”); see also Bigby v. City of
Chicago, 766 F.2d 1053, 1056 (7th Cir. 1985), cert. denied sub nom. Thoele v. City
of Chicago, 474 U.S. 1056 (1986) (“[I]t is not the examination that the applicant is
interested in—no one likes taking tests—but the job.”).
Local and state law, of course, could create a property interest in taking the
promotion exam. Tyndol v. Alabama Dep’t of Revenue, No. 2:13-CV-92-WKW,
2016 WL 5662010, at *6 (M.D. Ala. Sept. 29, 2016) (“Property interests . . . are
created and their dimensions are defined by existing rules or understandings that
stem from an independent source such as state law—rules or understandings
that secure certain benefits and that support claims of entitlement to those
benefits.” (quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577
(1972))). Rule V, § 8(b) of the CSRR delineates the eligibility requirements for
taking the promotional exam at issue. (Fourth Am. Compl. Ex. C at 109–10.)
Specifically, the Rule requires “4 years of continuous satisfactory employment . . .
as a sworn Police Officer with the Hialeah Police Department” or, if the candidate
has other educational degrees or law enforcement experience, “3 years of
continuous satisfactory employment . . . as a sworn Police Officer with the
Hialeah Police Department.” (Id.) Thus, whether Gonzalez met the eligibility
requirements determines to some degree whether he holds a property interest in
taking the promotional exam.
Gonzalez clearly did not meet the eligibility requirements as established by
the relevant local rules. A mere month or two after Gonzalez’s reemployment in
May 2008, Gonzalez applied to take the promotional exam, which would be
administered on October 27, 2008. (Fourth Am. Compl. ¶¶ 19, 30.) Regardless of
Gonzalez’s educational degrees, any previous service with another law
enforcement agency, or any other criteria, Gonzalez simply cannot allege that he
served the requisite years of continuous satisfactory employment. Gonzalez
appears to argue that the Court should interpret “continuous” to include
Gonzalez’s years of employment before he resigned in 2007. (Resp. at 11.) But
Gonzalez’s entire support for this argument rests on his assertion that the City
allowed another officer to take the promotional exam without the requisite years
of continuous satisfactory employment. This purported incident does not change
the plain language of Rule V, § 8(b) of the CSRR and does not change Gonzalez’s
failure to meet the express eligibility requirements.
The Court must look to the entirety of the local and state rules. See
Blanton, 758 F.2d at 1543. Other provisions of the CSRR support the exclusion of
Gonzalez’s pre-2008 employment from the calculation of years of continuous
satisfactory employment. For example, Rule VIII, § 6(c) of the CSRR describes the
reappointment requirements with the term “prior employee.” (Fourth Am. Comp.
Ex. C at 119.) Rule VIII, § 6(c)(5) also points out that reappointment must occur
“within 4 years after previous separation.” (Id.) These terms––“separation” and
“prior employee”––indicate a break in continuity for reappointed employees.
Gonzalez cannot allege eligibility to take the promotional exam and thus,
even if the Eleventh Circuit were to recognize a property interest in a promotion,
Gonzalez cannot allege the deprivation of a property interest. Accordingly, the
Court dismisses with prejudice Count 2 of the Complaint for failure to state a
cause of action.
C. State Claims (Counts 3, 4, & 5)
Count 3 alleges a Florida common law claim, seeking rescission and
cancellation of a contract––specifically rescission of a post-termination settlement
agreement between Gonzalez and the City entered into on April 5, 2012. (Fourth
Am. Compl. ¶¶ 51, 99–119.) In Count 4, Gonzalez seeks a declaration that Rule
VIII, § 6(c) of the CSRR violates the Florida Constitution, and in Count 5,
Gonzalez seeks a declaration that the City has violated Florida Statues and the
Florida Constitution by filling the positions of Police Commander and Police Major
without first administering a competitive promotional test. (Id. ¶¶ 120–58.)
The Court initially exercised its supplemental jurisdiction over these state
claims because no exception existed to the Court’s mandatory supplemental
jurisdiction over state claims “that are so related to claims in the action within
such original jurisdiction that they form part of the same case or
controversy . . . .” 28 U.S.C. § 1367(a). However, upon closer examination,
Gonzalez’s state claims are not “so related” to his federal claims. Further, the
Court “has dismissed all claims over which it has original jurisdiction,” which
allows this Court the discretion to cease exercising supplemental jurisdiction over
Gonzalez’s state claims. See 28 U.S.C. § 1367(c)(3).
“State courts, not federal courts, should be the final arbiters of state law.”
Baggett v. First Nat. Bank of Gainesville, 117 F.3d 1342, 1353 (11th Cir. 1997).
Because Gonzalez’s remaining claims depend on determinations of state law, the
Court declines to retain jurisdiction. 28 U.S.C. § 1367(c)(3). The Court therefore
remands Gonzalez’s remaining claims to state court, from where this case
originated. See Pace v. Peters, 524 F. App’x 532, 538 (11th Cir. 2013).
Accordingly, the Court grants in part the City’s motion to dismiss (ECF No.
31) as to Counts 1 and 2, and denies in part the City’s motion to dismiss as to
Counts 3, 4, and 5 (ECF No. 31). The Court dismisses with prejudice Counts 1
and 2 and remand Counts 3, 4, and 5. The Clerk shall close this matter, and
take all necessary steps to ensure the prompt remand of this action and transfer
this file back to the Circuit Court for the Eleventh Judicial Circuit of Florida in
and for Miami-Dade County. Any pending motions are denied as moot.
Done and ordered, at Miami, Florida, on August 9, 2017.
Robert N. Scola, Jr.
United States District Judge
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