Deborah RICE-LAMAR, Plaintiff-Appellant, v. CITY OF FORT LAUDERDALE, FLORIDA, a municipality, George Hanbury, individually, Pete Witschen, Asst. City Attorney, individually, Bruce Larkin, individually, John Panoch, individually, Defendants-Appellees.
No. 99-12951.
United States Court of Appeals, Eleventh Circuit.
Nov. 8, 2000.
232 F.3d 836
For the reasons stated above, Appellants’ convictions and sentences are affirmed.
AFFIRMED.
Reginald J. Clyne, Clyne & Self, P.A., Coral Gables, FL, for Plaintiff-Appellant.
John A. Walker, Debra M. Leder, Gordon D. Rogers, Muller, Mintz, Kornreich, Caldwell, Casey, Crosland & Bramnick, P.A., Miami, FL, for Defendants-Appellees.
Before TJOFLAT, MARCUS and CUDAHY*, Circuit Judges.
TJOFLAT, Circuit Judge:
I.
A.
The City Manager‘s Office (the “CMO“) in the City of Ft. Lauderdale, Florida,
The City Manager serves at the pleasure of an elected City Commission. In order to ensure racial, ethnic, and gender diversity in the City‘s hiring рractices, the Ft. Lauderdale City Commission requested that the CMO prepare annual reports detailing the City‘s progress in hiring and retaining minority employees. The CMO assigned this task to the Affirmative Action Specialist, who reports to the Director of Personnel in the Administrative Services Department.
On June 20, 1988, Deborah Rice-Lamar, an African-American female, was hired to be the City‘s Affirmative Action Specialist. Rice-Lamar‘s job description stated that one of her principal tasks was to “advise[] departmental and personnel officials as well as the City Manager on potential EEO liabilities and on strategies for achieving long term [affirmative action] goals.”1 Though her “work [was to be] performed with considerable independent judgment, discretion and initiative,” the job description made clear that it was also to be “reviewed by an administrative superior through conferences, periodic reports, and observation of results achieved.” Rice-Lamar presеnted the 1996 Affirmative Action Report at a Department meeting on June 19, 1996. Entitled “Economic Integration: Affirmative Action for the
[W]e are still a City plagued with racism, glass ceilings for women and brick walls for people of color, a tolerance for perceptions of unfairness and a proverbial silence about it all. We make plans for valuing and managing diversity initiatives within the City which shоuld create an environment where differences are valued as an advantage[,] not just tolerated. However, differences must first be acknowledged before either tolerated or valued. Recommendations on the City‘s diversity initiative are forthcoming; however, I will take this opportunity to foretell that they will acknowledge our need to address some basic problem of “ism” while moving toward an environment which values diversity and manages diversity for the betterment of all.
Also included wеre statistical graphs indicating the number of African-American, Hispanic, and female City employees in management and professional positions.
George Hanbury, the City Manager, Pete Witschen, an Assistant City Manager, Bruce Larkin, the Director of the Administrative Services Department, and John Panoch, the Director of the Personnel Division of the Administrative Services Department, all expressed serious reservations about the content of the report, and requested that Rice-Lаmar make various substantive changes before the report was delivered to the City Commission. In particular, Rice-Lamar‘s superiors directed her to remove the personal commentary, and to draft a report that focused on the statistical data collected on minority and female representation in the City workforce. Rice-Lamar refused to alter the report substantially. On July 22, 1996, she left a revised copy of the report in Larkin‘s and Panoch‘s respective offices, with a message that it was ready for printing and distribution. The report still contained much of the personal commentary that her superiors had directed her to remove.2
On July 26, Larkin met with Rice-Lamar and offered her the opportunity to resign. She refused, stating in a letter to Larkin that
[t]he Affirmative Action Report ... honestly and objectively outlines racial problems and tensions in the City. Apparently, your concern over public image have [sic] led you to suppress the publication of my report and request my resignation.
On July 29, without Larkin‘s review or approval, Rice-Lamar distributed the report to Hanbury, and all but one of the Department heads. On August 12, Rice-Lamar was notified by memorandum from Panoch of possible disciplinary action against her, based, in part, on the fact that “numerous deadlines [had been] missed and instructions [were] not followed” with regard to the “Affirmative Action presentation and report.” After affording Rice-Lamar an opportunity to be heard, Larkin reсommended to the City Manager that she be discharged. The City Manager accepted the recommendation and discharged her effective October 21, 1996.
B.
Rice-Lamar brought this suit against the City of Ft. Lauderdale, Hanbury, Witschen, Larkin, and Panoch in the United States District Court for the Southern District of Florida. In a twelve-count complaint,3 she sought money damages and, alternatively, reinstatement and back pay, against the City and the individual defendants for discriminating against her on account of her race and sex, in violation of the Fourteenth Amendment, Title VII of the Civil Rights Act of 1964,
In their answers to Rice-Lamar‘s complaint, the defendants denied liability and the individual defendants claimed qualified immunity from suit.
Following discovery, the defendants moved for summary judgment. The district court granted their motions, concluding that Rice-Lamar fаiled to make out a case under any of her theories of liability. The court also concluded that the individual defendants were immune from suit under the doctrine of qualified immunity. We now affirm the court‘s judgment. We do so on the basis that the record before the district court was insufficient as a matter of law to establish any of Rice-Lamar‘s claims for relief. (We therefore do not reach the question whether any individual defendant is entitled to qualified immunity.)
II.
We review de novo orders granting a motion for summary judgment. Warren v. Crawford, 927 F.2d 559, 561 (11th Cir. 1991). “The district court‘s conclusion[s] of law [are] subjeсt to complete and independent review by this court.” In re Sure-Snap Corp., 983 F.2d 1015, 1017 (11th Cir.1993).
A party seeking summary judgment must demonstrate that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
In response to a properly supported motion for summary judgment, “an adverse party may not rest upon the mere allegations or denials of the adverse party‘s pleadings, but ... must set forth sрecific facts showing that there is a genuine issue for trial.”
III.
We first address Rice-Lamar‘s First Amendment free speech claim. Second, we address hеr claim that she was discriminated against on the basis of her race and sex.
A.
It is well established that a state may not discharge a public employee in retaliation for public speech. Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). This circuit employs a four-part test to determine whether a state (or, as in this case, a city) has done so.
First, a court must determine whether the employee‘s speech may be fairly characterized as constituting speech on a matter of public concern. Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708 (1983); Rankin, 483 U.S. at 384, 107 S.Ct. at 2896; Morgan v. Ford, 6 F.3d 750, 754 (11th Cir. 1993), cert. denied, 512 U.S. 1221, 114 S.Ct. 2708, 129 L.Ed.2d 836 (1994) (citing Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir.1989)). Speech addresses a matter of public concern when the speech can be “fairly considered as relating to any matter of political, social, or other concern to the community.” Connick, 461 U.S. at 146, 103 S.Ct. at 1690....
Second, a court must weigh the employee‘s “[F]irst [A]mendment interests” against the interest of the City, as an employer, “in promoting the efficiency of the public services it performs through its employees.” Morgan, 6 F.3d at 754. In performing this balancing test, a court must consider several factors: (1) whether the speech at issue impeded the government‘s ability to perform its duties effectively; (2) the manner, time and place of the speech; and (3) the context within which the speech was made. Connick, 461 U.S. at 151-55, 103 S.Ct. at 1692-94; Morales v. Stierheim, 848 F.2d 1145, 1149 (11th Cir.1988), cert. denied, 489 U.S. 1013, 109 S.Ct. 1124, 103 L.Ed.2d 187 (1989)....
Third, a court must determine whether the speech in question played a “substantial part” in the government‘s decision to discharge the employee....
Fourth, if the employee shows that the speech was a substantial motivating factor in the decision to discharge him, the City must prove by a preponderance of the evidence that it would have reached the same decision in the absence of the protected conduct. Fikes v. City of Daphne, 79 F.3d 1079, 1083-85 (11th Cir.1996).
We will assume without deciding that Rice-Lamar‘s expression constitutes speech on a matter of public concern, and dispose of the issue on the ground that her First Amendment interests are outweighed by the City‘s interest, as an employer, “in promoting the efficiency of the public services it performs through its employees.” Morgan, 6 F.3d at 754 (internal quotation marks omitted).9
[I]n weighing the State‘s interest in [disciplining] an еmployee based on any claim that the content of a statement made by the employee somehow undermines the mission of the public employer, some attention must be paid to the responsibilities of the employee within the agency. The burden of caution employees bear with respect to the words they speak will vary with the extent of authority and public accountability the employee‘s role entails.
Rankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 2899, 97 L.Ed.2d 315 (1987). In the instant case, one of Rice-Lamar‘s primary responsibilities within the Ft. Lauderdale Department of Administrative Services was to write an annual Affirmative Action Report to be presented to the City Commission. Although her job description stated that Rice-Lamar was to perform her job “with considerable independent judgment,” all of her work was ultimately to be “reviewed by an administrative superior through conferences, periodic reports, and observation of results achieved.” Because Rice-Lamar refused to alter the report in accordance with her superiors’ instructions, any First Amendment interest she may have had in publishing her views is outweighed by the City‘s interest in producing an official document that conformed to the City‘s expectations.
As Justice Brennan stated in his dissent in Connick,
[p]erhaps the simplest example of a statement by a public employee that would not be protected by the First Amendment would be answering “No” to a request that the employee perform a lawful task within the scope of his duties. Although such a refusal is “speech,” which implicates First Amendment interests, it is also insubordination, and as such it may serve as the basis for a lawful dismissal.
Connick, 461 U.S. at 163 n. 3, 103 S.Ct. at 1699 n. 3 (Brennan, J., dissenting). Contrary to Rice-Lamar‘s perception, her job with the City did not involve utilizing the City‘s resources to crusade for her personal vision of social justice; her job was to follow her superiors’ lawful instructions. By declining to alter the Affirmative Action Report after she was given a direct order to do so, Rice-Lamar flatly refused to perform a lawful task within the scope of her duties. “Such refusal to abide by a valid order is closely connected with, and can be classified as insubordination.” Hankard v. Town of Avon, 126 F.3d 418, 423 (2d Cir.1997) (holding that employees could be fired for refusing to obey government employer‘s order to alter a report concerning racial discrimination allegedly committed by another employee).
In a very real sense, the report cannot even be classified as Rice-Lamar‘s speech at all. The report was the City‘s document. Although Rice-Lamar collectеd the statistics and wrote the words contained in the report, she did so at the behest of her employer; and the report was subject to her superiors’ approval before it could be distributed to the City Commission. Just as a government employer has only a limited right to control its employees’ speech, employees also have very little right to control the content of their employer‘s speech.10
We caution that this would be a different case if Rice-Lamar had used a means of communication that was not under the exclusive control of her employer. Although we intimate no view concerning the outcome of such a case, different considerations would obviously come to the fore if Rice-Lamar had, for example, written an editorial for a local newspaper, or even if she had attempted to communicate her concerns privately to the City Commission. In the instant case, however, Rice-Lamar attempted tо publish her personal views in a document that was both under the control, and vested with the authority, of her employer, the City of Ft. Lauderdale. Civil servants cannot cry foul when they attempt to use their government employers as stage dummies, and are then disciplined for it.
B.
Rice-Lamar also contends that the district court erred in granting summary judgment to all the defendants on her claims of discrimination under Title VII of the Civil Rights Act of 1964, and
Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), a plaintiff can establish a prima facie case that she was discriminated against in violation of Title VII by showing: (1) she is a member of a protected class; (2) she was subjected to adverse employment action; (3) her employer treated similarly situated employees who are not members of the plaintiff‘s class more favorably; and (4) she was
the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff‘s rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity.... [The plaintiff] now must have the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the еmployer or indirectly by showing that the employer‘s proffered explanation is unworthy of credence.
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255-56, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1981).11
In the instant case, the district court found that even though there are genuine issues of material facts with respect to whether [Rice-Lamar] has established her prima facie case ... [,] there are no genuine issues of material facts as to whether the City‘s stated legitimate, nondiscriminatory reasons for its actions were pretextual....
[I]t is undisputed that [Rice-Lamar] was disciplined for refusing to follоw her supervisors’ instructions. Although the subject matter of the dispute between [Rice-Lamar] and her supervisors involved race and gender discrimination, the City‘s actions with respect to [Rice-Lamar] herself were not due to her race or gender. Rather, they were due to her insistence on including her own conclusions in the Affirmative Action Reports against her supervisors’ wishes.
Rice-Lamar v. City of Ft. Lauderdale, 54 F.Supp.2d 1137, 1146 (S.D.Fla.1998) (footnote omitted).
Rice-Lamar does not dispute that she refused to alter substantially the Affirmative Action Report, and she has failed tо present any evidence indicating that other insubordinate employees were treated more favorably. Cf. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2107, 147 L.Ed.2d 105 (2000) (finding error in grant of judgment as a matter of law to defendant in an age discrimination claim, in part because plaintiff “made a substantial showing that [defendant‘s] explanation [for the adverse employment action] was false“). In response to a properly supported motion for summary judgment, “an adverse party may not rest upon the mere allegations or deniаls of the adverse party‘s pleadings, but ... must set forth specific facts showing that there is a genuine issue for trial.”
IV.
For the foregoing reasons, we AFFIRM the district court‘s grant of summary judgment to the defendants on all claims.
AFFIRMED.