Weinberger v. Navarro

957 F. Supp. 220, 1997 U.S. Dist. LEXIS 3709, 1997 WL 144960
CourtDistrict Court, S.D. Florida
DecidedMarch 14, 1997
DocketNo. 94-6561-CIV.
StatusPublished

This text of 957 F. Supp. 220 (Weinberger v. Navarro) is published on Counsel Stack Legal Research, covering District Court, S.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Weinberger v. Navarro, 957 F. Supp. 220, 1997 U.S. Dist. LEXIS 3709, 1997 WL 144960 (S.D. Fla. 1997).

Opinion

ORDER

K. MICHAEL MOORE, District Judge.

THIS CAUSE came before the Court upon Defendant’s Motion to Dismiss the Second Amended Complaint (D.E.41).

I. Factual Background1

Plaintiff Scott Weinberger was employed as a Deputy Sheriff of Broward County, Florida.2 In addition to his law enforcement activities, plaintiff purportedly had an ongoing business and personal relationship with Mohammad Ali. During the course of this relationship, Weinberger had arranged for several appearances by Mr. Ali in Broward County. In 1992, then-Sheriff Nick Navarro ran for re-election. Navarro asked Wein-berger to arrange for Mr. Ali to participate in a fund-raiser for Navarro’s re-election campaign. Weinberger refused, stating that Mr. Ali would participate in events for children or charity, but not in political events. Navarro allegedly contacted Weinberger shortly thereafter to inform him that Navarro had arranged for the event to be a charitable fund-raiser. According to Weinberger, however, all funds raised, at the event would be diverted and directed to Navarro’s reelection campaign. Weinberger again refused to contact Mr. Ali. As a result of this refusal, Navarro purportedly engaged in a course of conduct intended to result in Wein-berger’s termination. This included alleged utilization of illegal tape recordings, coercion of testimony, and threatening Weinberger with arrest. Weinberger claims that he resigned his position as deputy sheriff because of this conduct.

II. Legal Standards

When considering a motion to dismiss, the court must construe the complaint in the light most favorable to the plaintiff and accept the factual allegations as true. See S.E.C. v. ESM Group, Inc., 835 F.2d 270, 272 (11th Cir.), cert. denied sub nom Peat Marwick Main & Co. v. Tew, 486 U.S. 1055, 108 S.Ct. 2822, 100 L.Ed.2d 923 (1988). The court should not grant a motion to dismiss “unless it appears beyond doubt that the [222]*222plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957) (citations omitted). “When a federal court reviews the sufficiency of a complaint, before the reception of any evidence ..., its task is necessarily a limited one. The issue is not whether the claimant will ultimately prevail but whether the claimant is entitled to offer evidence in support of the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). Consideration of matters beyond the four corners of the complaint is improper. Milbum v. United States, 734 F.2d 762 (11th Cir.1984); Thomas v. Burlington Industries, Inc., 769 F.Supp. 368, 370 (S.D.Fla.1991).

III. Discussion

Plaintiff alleges that defendant forced him to resign from his position as deputy sheriff, violating his rights of free speech and of free association under the First Amendment to the United States Constitution.3

A. Free Speech

To prevail because of a dismissal in retaliation for the exercise of free speech, the plaintiff must establish that (1) the expression addressed a matter of public concern; (2) the employee’s first amendment interests outweigh the interests of the employer in preserving the efficiency of government services; and (3) the employee’s conduct was a substantial or motivating factor in the government’s discharge decision. Martinez v. City of Opa-Locka, Fla., 971 F.2d 708, 712 (11th Cir.1992). Once the plaintiff has made this showing, the burden shifts to the defendants to prove by a preponderance of the evidence that it would have reached the same decision to terminate the plaintiffs employment even absent the protected conduct. Martinez, 971 F.2d at 712 (citations omitted). To be protected, the speech must be on a matter of public concern and the employee’s interest in expressing himself on that matter must not be outweighed by any injury the speech could cause to “‘the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.’ ” Waters v. Churchill, 511 U.S. 661, 668, 114 S.Ct. 1878, 1884, 128 L.Ed.2d 686 (1994) (citing Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 1687, 75 L.Ed.2d 708 (1983) (quoting Pickering v. Board of Ed. of Township High School Dist., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968))). Whether the plaintiffs speech addressed a matter of public concern depends upon the content, form and context of the statement considered in light of the entire record. Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 2896-97, 97 L.Ed.2d 315 (1987).

Defendants point out, correctly, that plaintiff has alleged no such protected speech in his second amended complaint. In opposition to defendant’s motion to dismiss, plaintiff asserts that his use of quotations around the word “fund-raiser” indicates a protected conversation (PI. Mem. ¶ 3A). Plaintiff further argues that his speech related to Navarro’s re-election, which was a matter of public concern and therefore merits constitutional protection. Navarro’s re-election may have been a matter of public concern, but a conversation between a sheriff and his deputy about a celebrity’s possible attendance at a fund-raiser does not rise to the level of protected First Amendment speech. The lack of such protected speech is fatal to plaintiffs First Amendment free speech claim. Plaintiff has, therefore, failed to plead facts sufficient to support a prima facie case for a constitutional violation of his right to free speech.4

[223]*223B. Freedom of Association

In McCabe v. Sharrett, 12 F.3d 1558 (11th Cir.1994), the Eleventh Circuit set forth the analysis a court must use in determining whether an adverse employment action infringes on a public employee’s freedom of association:

In order for a public employee to establish that an employer conditioned his or her job in a way that burdened impermissibly a constitutional right, the employee must first demonstrate that the asserted right is protected by the Constitution and that he or she suffered ‘adverse employment action’ for exercising that right. Upon making these two showings, the employee is entitled to prevail if the adverse employment action was taken in such a way as to infringe the constitutionally protected right.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Conley v. Gibson
355 U.S. 41 (Supreme Court, 1957)
Scheuer v. Rhodes
416 U.S. 232 (Supreme Court, 1974)
Connick Ex Rel. Parish of Orleans v. Myers
461 U.S. 138 (Supreme Court, 1983)
Rankin v. McPherson
483 U.S. 378 (Supreme Court, 1987)
Gersten v. Rundle
56 F.3d 1389 (Eleventh Circuit, 1995)
Waters v. Churchill
511 U.S. 661 (Supreme Court, 1994)
Gersten v. Rundle
833 F. Supp. 906 (S.D. Florida, 1993)
White v. Fl. Hwy. Patrol, Div. of Fl. Dept. of Hwy.
928 F. Supp. 1153 (M.D. Florida, 1996)
Susanno v. Lee County Board of County Commissioners
852 F. Supp. 980 (M.D. Florida, 1994)
Thomas v. Burlington Industries, Inc.
769 F. Supp. 368 (S.D. Florida, 1991)
Peat Marwick Main & Co. v. Tew
108 S. Ct. 2822 (Supreme Court, 1988)
McCabe v. Sharrett
12 F.3d 1558 (Eleventh Circuit, 1994)
Terry v. Cook
866 F.2d 373 (Eleventh Circuit, 1989)
Cates v. International Telephone & Telegraph Co.
486 U.S. 1055 (Supreme Court, 1988)
Peat Marwick Main & Co. v. Tew
486 U.S. 1055 (Supreme Court, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
957 F. Supp. 220, 1997 U.S. Dist. LEXIS 3709, 1997 WL 144960, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weinberger-v-navarro-flsd-1997.