Jeffery R. Bell v. Sheriff of Broward County

6 F.4th 1374

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 2, 2021
• Docket: 20-11958
• Status: Published

Opinion

USCA11 Case: 20-11958 Date Filed: 08/02/2021 Page: 1 of 11

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-11958 ________________________

D.C. Docket No. 0:20-cv-60772-AHS

JEFFERY R. BELL,

Plaintiff-Appellant,

versus

SHERIFF OF BROWARD COUNTY,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(August 2, 2021)

Before JORDAN, BRASHER, and ANDERSON, Circuit Judges.

JORDAN, Circuit Judge:

Deputy Jeffery Bell sued his employer, the Sheriff of Broward County, under

42 U.S.C. § 1983 for declaratory and injunctive relief. He alleged that the Sheriff USCA11 Case: 20-11958 Date Filed: 08/02/2021 Page: 2 of 11

retaliated against him for exercising his First Amendment rights by suspending him

with pay pending an investigation into his conduct.

The district court dismissed the suit under Rule 12(b)(6) because Deputy Bell

had failed to allege that he suffered an adverse employment action. Following oral

argument and a review of the record, we affirm.

As explained below, Deputy Bell sued the Sheriff only five days after he was

suspended with pay in accordance with the governing collective bargaining

agreement. We agree with the district court that a five-day suspension with pay does

not constitute adverse action for purposes of a First Amendment retaliation claim.

I

As this case comes to us from a Rule 12(b)(6) dismissal, we accept the factual

allegations of Deputy Bell’s complaint as true. See Manhattan Cmty. Access Corp.

v. Halleck, 139 S. Ct. 1921, 1927 (2019). The complaint tells the following story.

On April 6, 2020, Deputy Bell wrote an opinion piece in the South Florida

Sun Sentinel. At that time, he worked for the Broward County Sheriff’s Office (he

had been with the BSO for over 20 years) and served as the elected president of the

International Union of Police Associations Local 6020 (the union which represents

member deputies and sergeants employed by the BSO).

The collective bargaining agreement between the Sheriff and Local 6020

recognized that Deputy Bell held a “full release position” at the BSO. This meant

2 USCA11 Case: 20-11958 Date Filed: 08/02/2021 Page: 3 of 11

that Deputy Bell was “released” from his traditional law enforcement duties so that

he could serve as Local 6020’s full-time president. In his capacity as president of

Local 6020, Deputy Bell spoke with union members about their concerns, handled

membership requests, sent communications to members, hired legal counsel for

members, processed grievances regarding alleged unfair labor practices, represented

members at disciplinary hearings, worked on membership benefits, and acted as the

public voice of the union.

In his Sun Sentinel opinion piece, Deputy Bell—writing in his capacity as the

president of Local 6020—criticized the Sheriff for his response to the COVID-19

pandemic. For example, he complained that the Sheriff had failed to provide a

sufficient supply of personal protective equipment to BSO employees. He also

maintained that the Sheriff was unprepared for the pandemic and that his public

statements to the contrary were false.

Four days later, on April 10, 2020, Deputy Bell drafted a “whistleblower”

letter pursuant to Fla. Stat. § 112.3187(6) and sent it to the Sheriff by email. He did

this in an effort to curtail threats made by the Sheriff against him and to obtain a

face-to-face meeting with the Sheriff about the issues relating to personal protective

equipment.

On the same day, the Sheriff suspended Deputy Bell with pay. The Sheriff

asserted that Deputy Bell had made false statements and engaged in “conduct

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unbecoming” a BSO employee. BSO Internal Affairs advised Deputy Bell that he

was the subject of an investigation due to his possible violation of certain BSO

policies, included those related to truthfulness, corrupt practices, and conduct

unbecoming an employee.

The suspension, according to the BSO, required Deputy Bell to lose his “full

release position.” It also prevented him from acting as a law enforcement officer,

even when off-duty, and required him to report to Internal Affairs daily.

Invoking 42 U.S.C. § 1983, Deputy Bell sued the Sheriff in his official

capacity on April 15, 2020, five days following his suspension with pay. He alleged

that the Sheriff had retaliated against him in violation of his First Amendment rights.

He sought a declaratory judgment that the suspension violated the Constitution, and

an injunction setting aside the suspension, but no damages. The Sheriff moved to

dismiss the complaint under Rule 12(b)(6).

Taking the facts in the complaint as true, and viewing them in the light most

favorable to Deputy Bell, the district court ruled that he had spoken as a citizen, and

not as a BSO employee, in his Sun Sentinel opinion piece. See D.E. 22 at 5-6. It

also concluded that Deputy Bell had spoken about a matter of public concern—the

allegedly inadequate supplies of personal protective equipment provided to BSO

employees—and that his First Amendment interests outweighed those of the Sheriff

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under the balancing test established in cases like Pickering v. Bd. of Educ. of

Township High School Dist., 391 U.S. 563, 568-69 (1968). See D.E. 22 at 7-9.

The district court nevertheless dismissed the First Amendment retaliation

claim because Deputy Bell had not alleged an adverse employment action. First,

nothing in the collective bargaining agreement required the president of Local 6020

to be on “full release” status with the BSO, and Deputy Bell’s removal from a “full

release position” had no bearing on his position as union president. See id. at 8-9.

Second, Deputy Bell had not offered any allegations of a negative employment

consequence. The suspension was with pay, and caselaw indicated that such a

suspension, without more, does not constitute an adverse employment action. See

id. at 10-11. As a result, Deputy Bell had not alleged, and could not “at this time”

allege, an adverse employment action. See id. at 11.

II

As noted, the district court dismissed the complaint under Rule 12(b)(6) due

to Deputy Bell’s failure to allege an adverse employment action. Our review of the

dismissal order is plenary. See Lane v. Philbin, 835 F.3d 1302, 1305 (11th Cir.

2016).

III

“[A]s a general matter the First Amendment prohibits government officials

from subjecting an individual to retaliatory actions for engaging in protected

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speech.” Nieves v. Barlett, 139 S. Ct. 1715, 1722 (2019) (internal quotation marks

and citation omitted). Because this case is here on a Rule 12(b)(6) dismissal, the

question is whether Deputy Bell plausibly alleged that the Sheriff took adverse

action against him. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556-67 (2007). 1

A

Our caselaw on the adverse action of a First Amendment retaliation claim

brought by a public employee is a bit muddled. We therefore discuss our precedents

before addressing Deputy Bell’s situation.

In 2004, we held that a “public employer retaliates [in violation of the First

Amendment] when [it] takes an adverse employment action that is likely to chill the

exercise of constitutionally protected speech.” Stavropoulos v. Firestone, 361 F.3d

610, 618 (11th Cir. 2004), abrogated as to Title VII standard by Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). An “adverse employment

action,” we explained in Stavropoulos, is an action that “involve[s] an important

condition of employment,” and we listed as examples “discharges, demotions,

refusals to hire or promote, and reprimands.” Id. at 619. See also Akins v. Fulton

Cnty., 420 F.3d 1293, 1300-02 (11th Cir. 2005) (applying Stavropoulos and holding

1 For the first time on appeal, Deputy Bell claims that the Sheriff’s actions also constituted a prior restraint on his speech. He did not, however, raise this theory in his complaint, his motion for a preliminary injunction, or his opposition to the Sheriff’s motion to dismiss. We therefore will not consider it for the first time on appeal. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). 6 USCA11 Case: 20-11958 Date Filed: 08/02/2021 Page: 7 of 11

that constructive discharge is an adverse employment action but that reprimands,

negative evaluations, threats of job loss and suspensions without pay, exclusions

from meetings, and removal of job duties—even in the aggregate—are not).

A year later, in 2005, we addressed the adverse action standard for First

Amendment retaliation claims brought by private citizens. Adopting the view of the

majority of the circuits, we held that the standard is an objective one: “a plaintiff

suffers adverse action if the defendant’s allegedly retaliatory conduct would likely

deter a person of ordinary firmness from the exercise of First Amendment rights.”

Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005) (internal quotation marks

and citation omitted). In so doing, we distinguished Stavropoulos: “The defendants’

reliance on retaliation cases in the public employment context is misplaced, because

different interests are at stake there. In the employment context, the required adverse

action is ‘adverse employment action.’ Plainly, private citizens cannot suffer

adverse employment actions at the hands of public officials who are not their

employers.” Id. at 1252 (quoting Stavropoulos, 361 F.3d at 616). See also Smith v.

Mosley, 532 F.3d 1270, 1276 (11th Cir. 2008) (applying Bennett to the First

Amendment retaliation claim of a prisoner).

So far, so good. But in a 2016 case involving the First Amendment retaliation

claim of a police officer, we applied Bennett without mentioning Stavropoulos. See

Bailey v. Wheeler, 843 F.3d 473, 477, 480-81 (11th Cir. 2016). Deputy Bell does

7 USCA11 Case: 20-11958 Date Filed: 08/02/2021 Page: 8 of 11

not rely on Bennett or Wheeler by name, but he asks us to apply the adverse action

standard enunciated in those decisions and in Burlington Northern, 548 U.S. at 68,

a Title VII retaliation case. If we saw no way out of the precedential conundrum,

we would have to apply Stavropoulos as the earlier decision, see Corley v. Long-

Lewis, Inc., 965 F.3d 1222, 1231 (11th Cir. 2020), unless we concluded that it has

been abrogated by Burlington Northern. Because Deputy Bell loses under both the

Stavropoulos and Bennett standards, we do not need to confront the question of what

prior decision to apply, and mention the potential intra-circuit conflict to flag the

matter for litigants, attorneys, and future panels.2

2 This may be a good time to point out that Stavropoulos may be ripe for re-examination. Stavropoulos explained that the Title VII and First Amendment adverse action standards “are consonant.” Stavropoulos, 316 F.3d at 619. Two years after we decided Stavropoulos, the Supreme Court held that under Title VII’s anti-retaliation provision the adverse action requirement is satisfied if the challenged action “might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Burlington N., 548 U.S. at 68. We have since ruled that “the standard applicable to all Title VII retaliation claims is the Burlington Northern ‘might well have dissuaded’ standard[.]” Monaghan v. Worldpay, Inc., 955 F.3d 855, 862 (11th Cir. 2020).

If the adverse action standard has changed in Title VII retaliation cases, it might be time to re- evaluate Stavropoulos with respect to public employees alleging retaliation in violation of the First Amendment. In such cases some of our sister circuits employ a standard that is similar, if not identical, to that announced in Bennett and Burlington Northern. See, e.g., Alter v. Spiegel, 988 F.3d 564, 575 (1st Cir. 2021); Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 227 (2d Cir. 2006); Coszalter v. City of Salem, 320 F.3d 968, 975-76 (9th Cir. 2003); Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982). Cf. DePree v. Saunders, 588 F.3d 282, 287-88 (5th Cir. 2009) (noting that the Fifth Circuit has not decided the effect, if any, of Burlington Northern on the First Amendment retaliation claims of public employees). 8 USCA11 Case: 20-11958 Date Filed: 08/02/2021 Page: 9 of 11

B

In his initial brief, Deputy Bell argued that the five-day suspension with pay

“precluded” him from carrying out his duties as president of Local 6020, and that

the district court erred by not considering that effect in analyzing the adverse action

requirement. See Appellant’s Br. at 12. In his reply brief, however, he agrees with

the Sheriff that his role as union president remains intact and he no longer claims an

adverse action in that respect. See Appellant’s Reply Br. at 1-2. See also Appellant’s

Suggestion of Mootness at 1 (“[T]he Sheriff’s response has mooted the relief

requested in the complaint, by clarifying the terms of [Deputy] Bell’s suspension

and his right to speak freely as a citizen on matters of public concern.”).3

As a result, we need only consider whether the suspension with pay from law-

enforcement activities constituted an adverse action. Like the district court, our

answer is no.

The Fifth Circuit, which applies an adverse employment action standard that

is consistent with Stavropoulos, has held that a public employee’s suspension with

pay pending an investigation does not constitute adverse employment action for

purposes of a First Amendment retaliation claim. See Breaux v. City of Garland,

205 F.3d 150, 158 (5th Cir. 2000). The Sixth Circuit, though applying the Bennett

3 We declined to find the appeal moot because Deputy Bell’s complaint sought an injunction reversing the suspension in all respects. 9 USCA11 Case: 20-11958 Date Filed: 08/02/2021 Page: 10 of 11

standard in the public employee context, has come to the same conclusion. See

Sensabaugh v. Halliburton, 937 F.3d 621, 629 (6th Cir. 2019). The Ninth Circuit,

also applying the Bennett standard, has ruled that placing a public employee on

administrative leave with pay can, “under some circumstances,” constitute adverse

action in a First Amendment retaliation claim. See Dahlia v. Rodriguez, 735 F.3d

1060, 1078-79 (9th Cir. 2013) (en banc) (holding that placement on administrative

leave was an adverse action because the police officer was not allowed to take a

sergeant’s exam, forfeited holiday pay, and lost investigative experience).

We need not issue a broad ruling about whether a public employee’s

suspension with pay always constitutes or never constitutes an adverse action for

purposes of a First Amendment retaliation claim. Deciding the case narrowly on the

complaint before us, we hold only that Deputy Bell’s five-day suspension with pay

pending an investigation into his conduct is not an adverse action. We come to this

conclusion under both the Stavroupoulos and Bennett formulations of the adversity

standard. Although the two formulations of adversity are qualitatively different,

they nevertheless share a common element: both ask whether the challenged conduct

would, objectively, chill or deter the exercise of constitutionally protected speech.

See Stavropoulos, 361 F.3d at 619; Bennett, 423 F.3d at 1250.

Deputy Bell’s suspension with pay was less than a week old when suit was

filed, and we do not think that such a temporally-limited suspension pending an

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investigation into alleged misconduct would deter a reasonable person from

exercising his First Amendment rights. Indeed, the suspension was authorized by

the collective bargaining agreement between Local 6020 and the BSO, which

incorporated the Sheriff’s Policy and Procedures Manual and Florida’s Law

Enforcement Officers’ Bill of Rights, Fla. Stat. § 112.351 et seq. See D.E. 1-7, Art.

32.1.; Appellant’s Suggestion of Mootness, Exh. A. at § 9.5.6. 4

We affirm the district court’s dismissal of Deputy Bell’s complaint.

AFFIRMED.

4 At oral argument, the parties informed us that Deputy Bell was still suspended with pay, and that the Internal Affairs investigation was ongoing. We express no view on whether the current state of affairs can provide the basis for the adverse action element of a First Amendment retaliation claim. 11