6 F.4th 1374
11th Cir.2021Background
- Deputy Jeffery Bell, a 20-year BSO deputy and full-release union president for Local 6020, wrote an opinion piece criticizing the Sheriff’s COVID-19 response and PPE shortages.
- Four days later Bell sent a statutory "whistleblower" letter to the Sheriff and was suspended with pay pending an Internal Affairs investigation; the suspension required daily IA check-ins and removed him from law-enforcement duties.
- Bell sued the Sheriff in his official capacity under 42 U.S.C. § 1983 five days after the suspension, seeking declaratory and injunctive relief for First Amendment retaliation (no damages).
- The district court assumed Bell spoke as a citizen on a matter of public concern and that Pickering balancing favored Bell, but dismissed under Rule 12(b)(6) for failure to allege an adverse employment action because the suspension was with pay and he did not plausibly suffer a negative employment consequence.
- On appeal the Eleventh Circuit affirmed, holding that a five-day suspension with pay pending investigation—authorized by the collective bargaining agreement—did not constitute an adverse action that would objectively chill protected speech.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether paid suspension pending investigation is an "adverse employment action" for First Amendment retaliation | Five-day suspension prevented performance of union-related and law-enforcement duties and would chill speech | Short, paid administrative suspension authorized by CBA is not an adverse employment action | Not adverse; five-day paid suspension pending investigation fails to plausibly show chilling/deterrence; dismissal affirmed |
| Whether Bell spoke as a citizen on a matter of public concern | Op-ed and whistleblower letter were citizen speech about public-health and PPE shortages | (Defendant argued speech could be employee-related) | Court agreed Bell spoke as a citizen on a matter of public concern and Pickering balancing favored Bell, but claim failed for lack of adverse action |
| Whether removal from “full-release” position impaired union presidency | Bell argued suspension precluded discharge of full-release union duties | Sheriff and record showed CBA did not require full-release status for union presidency and presidency remained intact | Bell abandoned this theory on appeal; removal from full-release status did not establish adverse action |
| Prior restraint theory raised on appeal | Bell contended the suspension constituted a prior restraint | Theory not raised in complaint or below | Court declined to consider it as forfeited on appeal |
Key Cases Cited
- Pickering v. Bd. of Educ., 391 U.S. 563 (1968) (balancing government interest v. employee speech on public concern)
- Stavropoulos v. Firestone, 361 F.3d 610 (11th Cir. 2004) (public-employee adverse employment action standard)
- Bennett v. Hendrix, 423 F.3d 1247 (11th Cir. 2005) (objective "person of ordinary firmness" adverse-action standard for private-citizen retaliation)
- Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (Title VII retaliation adverse-action standard may deter reasonable worker)
- Breaux v. City of Garland, 205 F.3d 150 (5th Cir. 2000) (paid suspension pending investigation not adverse action)
- Sensabaugh v. Halliburton, 937 F.3d 621 (6th Cir. 2019) (paid suspension did not amount to adverse action under Bennett)
- Dahlia v. Rodriguez, 735 F.3d 1060 (9th Cir. 2013) (administrative leave with pay can be adverse under some circumstances)
- Nieves v. Bartlett, 139 S. Ct. 1715 (2019) (government officials may not retaliate for protected speech)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard on Rule 12(b)(6) review)