Case: 15-11595 Date Filed: 07/19/2017 Page: 1 of 26
Case: 15-11595 Date Filed: 07/19/2017 Page: 1 of 26
Case: 15-11595 Date Filed: 07/19/2017 Page: 1 of 26
[PUBLISH]
No. 15-11595
_________________________
ANTHONY RODRIGUEZ,
Plaintiff-Appellant,
versus
CITY OF DORAL,
JUAN CARLOS BERMUDEZ,
Defendants-Appellees.
__________________________
*
The Honorable Eugene E. Siler, Jr., United States Court of Appeals for the Sixth
Circuit, sitting by designation.
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A wise man once said a true history of the world is a history of great
political conversations, wherever they might have occurred. And great political
conversations could not exist in the absence of the First Amendment. So the First
exercising his rights to free speech and association, including supporting the
police officer with Defendant-Appellee City of Doral, alleges that Doral and its
Rodriguez filed suit under 42 U.S.C. 1983, claiming violation of his First
Amendment rights.
Though the district court concluded that Rodriguez had engaged in protected
activity, it nonetheless granted summary judgment for Doral and Bermudez. In the
district courts view, Rodriguez had not suffered an adverse employment action
1
Tyrion Lannister, speaking of himself. Oathbreaker, Game of Thrones (2016), as
quoted by http://m.imdb.com/title/tt4131606/quotes?item=qt2914807 (last visited June 20,
2017).
2
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because he had voluntarily left his position with Doral when he agreed to resign
conclude that Rodriguez did not voluntarily leave his employment with Doral but
rather was effectively terminated. For this reason, we now reverse the entry of
I. 2
The City of Doral is situated in Miami-Dade County and lies one mile from
20, 2017). A relative newcomer to independent city status, Doral was incorporated
as a municipality in 2003.
In 2007, Doral decided to create its own police department. Towards this
end, it hired Ricardo Gomez as its first chief of police. Gomez served as the chief
2
Defendants in this case contest some of the facts as set forth in this section. But for
purposes of our review of the summary-judgment order, we must accept the facts as the plaintiff
portrays them, to the extent that a reasonable jury could find that evidence in the record supports
those alleged facts. Fils v. City of Aventura, 647 F.3d 1272, 1287 (11th Cir. 2011). We likewise
must make all justifiable inferences from the facts in the plaintiffs favor. Id. For this reason,
we do not identify the facts that Defendants controvert where sufficient evidence exists in the
record to allow a reasonable jury to accept Rodriguezs version.
3
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needed to hire officers for its police force. So in January 2008, Doral offered and
At first, things at the Doral Police Department went along uneventfully for
Rodriguez. But at some point during his service with Doral, Rodriguez began
local politics and Rodriguezs involvement in them. Rodriguez first met Sandra
Ruiz when he was employed as a police officer for the City of Hialeah. At the
time, Ruiz was a member of the Doral City Council, and she encouraged
Rodriguez decided to spend some time learning about how things operated in the
City of Doral, so he began attending Doral City Council meetings. Over time, he
developed a friendship with Ruiz and would walk in public with her to her office.
Dorals mayor. Rodriguez asserts that Bermudez and Diaz were political
4
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while Bermudez is a Republican. And when Ruiz ran for election to the State
house and later for the Doral City Council, Bermudez supported her opponent on
both occasions.
friendship with Ruiz grew into a political affinity for her as well. As a result,
Rodriguez volunteered his time for Ruiz and attended public and private gatherings
with her or for her. He also educated her about issues of importance to law-
matters at City Council meetings. Rodriguez did these things because he knew that
Ruiz intended to run for mayor at some point, and he wanted to support her in that
endeavor.
Bermudez had told Purrinos not to hire Rodriguez because Bermudez did not
5
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Bermudez said in a very loud, very angry tone that Gomez needed to deal with
this asshole Tony, or Bermudez would. When Montgomery asked Gomez about
the conversation, Gomez said, The Mayor wants me to get rid of somebody. So
and Gomez responded, Well it doesnt matter; Ill take care of the situation. In a
that Bermudez and Gomez believed that Rodriguez was passing information to a
Bermudezs, had given him. Vera told Rodriguez that Bermudez advised that he
was giving Tony a hard time because hes associated with Sandra Ruiz.
Gomez referred to himself as an evil person and that [Rodriguez] did not want to
see the evil side of him. During this same discussion, Rodriguez said, Gomez
warned Rodriguez, Its your responsibility to be loyal to me and the mayor, and
no one else. In addition, Gomez explained that Gomez did not want Rodriguez
6
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picked up Cabrera in his car. As Cabrera entered the car, he heard Bermudez
having a very loud, hostile phone conversation with someone. Since Cabrera
caught only the end of it, he asked Bermudez what the call was about. Bermudez
explained that he was speaking with Gomez about Rodriguez, whom Bermudez
described as [Ruizs] spy in the police department and . . . the one that gets her all
her information.
But Bermudez had a plan for dealing with the situation, Cabrera testified.
person and vowing that if she ran for a higher office, he would make it his
As proof that the targeting was not just talk, Rodriguez relies on four
7
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Rodriguez describes as bogus disciplinary action against him. Of these, the first
concerned Rodriguezs alleged unauthorized use of his police vehicle for personal
business on the way home from work. At Gomezs direction, Rodriguezs direct
Rodriguez had violated City policy. Gulla determined that Gomez had authorized
Rodriguez to stop at a fitness center on his way home and that Rodriguez had
complied with Department policy by locking his weapons and other valuables in
change the outcome of the report to find that Rodriguez had violated City policy.
Against his will, Gulla did so. Rodriguez received written counseling as a result of
the incident.
In his capacity as the Internal Affairs investigator, Gulla also conducted the
sustain the allegations against Rodriguez. So Gulla prepared a report to this effect
and sent it to Gomez. But once again, Gomez took issue with Gullas report and
8
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ordered Gulla to reverse his findings and find Rodriguez guilty of some policy
violation. And once again, against his will, Gulla did so.
evaluation became final, however, Gomez instructed Gulla to remove the narrative
Department and to lower Rodriguezs score to 34, which was the minimum score
that would still allow Rodriguez to receive a raise. Gomez provided Gulla with no
The ultimate alleged targeting incident occurred on January 29, 2009, when
Gomez, Gulla, and Alfaro were present. Gomez gave Rodriguez a letter
Jorleen Aguiles, was copied on the letter, she declined to be involved in the
termination process because Gomez refused to disclose to Aguiles any reason for
Rodriguezs termination.
Nor would Gomez give Rodriguez a reason for his termination when
Rodriguez asked. Instead, Gomez said, I dont have to give you a reason. This is
9
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an at-will police department. I didnt sign the termination letter; the city manager
Rodriguez the option to resign instead, allowing Rodriguez five minutes to leave
the room to think about it. Rodriguez used the time to call the Police Benevolent
termination.
Rodriguez returned to Gomezs office and after a short time, was presented
3
with a resignation letter that Doral had prepared. Rodriguez, who was very
upset and distraught, began crying and signed the letter under what he describes
as duress. At that time, Rodriguez thought he had no choice. On the day of the
About an hour later, Rodriguez called the PBA again. This time counsel
instructed Rodriguez to prepare a letter rescinding his resignation letter and fax it
to the city manager, so he did. But after Rodriguez submitted it, he received a
3
The resignation letter stated, Effective Immediately, I hereby resign from my position
as Police Officer for the City of Doral Police Department. I would like to take this time to
express my appreciation for the opportunity given to me to serve the City of Doral.
10
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letter from City Manager Yvonne Soler-McKinley denying his request to rescind
Though Rodriguez sent letters to Gulla, Gomez, and Soler-McKinley, Doral denied
II.
Rodriguez filed this case under 42 U.S.C. 1983, alleging that Doral and
him and terminating his employment after he began actively and prominently
with Ruiz.
judgment. The district court granted the motions. Though the district court
dismissal of Rodriguez for reasons of his political affiliation would have violated
Rodriguezs 1983 retaliation claim failed. In the district courts view, Rodriguez
11
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Rodriguez first asserted that the district court had resolved a material issue of fact
improperly against him in concluding that Rodriguez had voluntarily resigned his
position. And second, Rodriguez contended that the district court erred as a matter
of law when it determined that he did not suffer an adverse employment action.
Rodriguez now appeals both the entry of summary judgment and the denial
III.
all inferences and reviewing all evidence in the light most favorable to the non-
moving party. Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318
(11th Cir. 2012); Crawford v. Carroll, 529 F.3d 961, 964 (11th Cir. 2008). We do
Bozeman v. Orum, 422 F.3d 1265, 1267-68 (11th Cir. 2005) (per curiam),
12
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2466 (2015). A district court should grant summary judgment only if the movant
we review that for an abuse of discretion. Richardson v. Johnson, 598 F.3d 734,
740 (11th Cir. 2010) (per curiam). A court abuses its discretion if it incorrectly
applies the law. Fla. Assn of Rehab. Facilities, Inc. v. State of Fla. Dept of
Health and Rehab. Servs., 225 F.3d 1208, 1218 (11th Cir. 2000).
IV.
expression. Elrod v. Burns, 427 U.S. 347, 357 (1976) (plurality opinion) (quoting
Court has explained, [F]reedom to associate with others for the common
protected by the First and Fourteenth Amendments.4 Id. (citations and internal
quotation marks omitted). And a persons right to associate with the political party
of his choice is an integral part of this basic constitutional freedom. Id. (citation
association, the Supreme Court has held that a government may not fire a public
4
The Fourteenth Amendment incorporates the First Amendments limitations and makes
them applicable to Defendants. See Elrod, 427 U.S. at 356 n.10.
13
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employee solely because of his political association or beliefs unless the hiring
the effective performance of the public office involved. Branti v. Finkel, 445
U.S. 507, 518 (1980); see also Elrod, 427 U.S. at 362 (plurality opinion); id. at 375
(Stewart, J., concurring); McKinley v. Kaplan, 262 F.3d 1146, 1149 (11th Cir.
2001) (citing McCabe v. Sharrett, 12 F.3d 1558, 1565-67 (11th Cir. 1994)).
at issue; the parties agree that these considerations are irrelevant to Rodriguezs
constitutionally protected political beliefs, and (2) his protected conduct was a
substantial or motivating factor in the decision to take adverse action against the
plaintiff. Holley v. Seminole Cty. Sch. Dist., 755 F.2d 1492, 1500 (11th Cir. 1985)
(citing Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). If the
14
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plaintiff meets these requirements, the burden shifts to the employer, who must
demonstrate by a preponderance of the evidence that it would have made the same
employment decision, even had the plaintiff never engaged in the protected
conduct. Id. (citing Mt. Healthy, 429 U.S. at 287; Paschal v. Fla. Pub. Empt
Relations Commn, 666 F.2d 1381, 1384 (11th Cir.), cert. denied, 457 U.S. 1109
(1982)).
protected activityis not at issue in this appeal. The district court found that he
Rather, the district court rested its entry of summary judgment for
Defendants on its finding that Rodriguez had failed to establish part of the second
McCabe, 12 F.3d at 1563. But in Defendants and the district courts view,
disagree.
adverse employment action. First, he claims that his employment was terminated
effective immediately when Gomez handed him the termination letter. Second,
15
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but to resign since he would have been fired, anyway, and had no choice to fight
for his job. And third, Rodriguez asserts that he tendered his resignation under
upon receipt of the termination letter. Rodriguez recounts that when he reported to
Gomezs office on January 29, 2009, Gomez handed him a letter that stated,
Please be advised that effective immediately, your employment with the City of
terminated his employment, and the fact that he later had the option to resign does
not alter the fact that he had already been fired, effective immediately upon
after Gomez conveyed the letter to Rodriguez, the parties discussed the possibility
5
Rodriguez asserts that the district court improperly chose between two plausible
versions of the facts, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, (1986), by
concluding that Rodriguezas opposed to Gomezsuggested the option to resign. In fact,
though, the district court expressly did not determine who suggested resignation because it found
the issue to be immaterial to resolution of Rodriguezs claim. As the district court stated,
Rodriguez had a choice between termination and resigning. It does not matter who suggested
the options, which is subject to dispute. It matters only that Rodriguez had an alternative to
resigning. We agree that who suggested resignation is irrelevant. We consider only whether
Rodriguez chose to resign of his own free will. See infra at Section IV.
16
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termination. As a matter of fact, then, the record does not bear out Rodriguezs
contention that he was actually terminated when he received the termination letter.6
Instead, the events that happened after Gomez gave Rodriguez the
6
Our colleague suggests that the words effective immediately in the termination letter
in and of themselves create an issue of fact concerning whether an involuntary termination
occurred at the time Gomez originally handed him the termination letter. See J. Jordan Opinion
at 24. We respectfully disagree. First, Judge Jordans concurrence states that [t]he majority
says that everything that happened after Mr. Rodriguez was given the letter by Chief Gomez
(including Mr. Rodriguezs subsequent decision to resign) shows that the letter did not constitute
a termination. Id. at 25. To be clear, though, that is not our position. Rather, we conclude only
that we cannot tell by looking at the letter alone whether Rodriguezs termination was
involuntary under our caselaw. Judge Jordans concurrence suggests that the words effective
immediately in the termination letter, in and of themselves, are enough to involuntarily end
employment, regardless of all surrounding events. We think not. No magic words alone can tell
us whether a termination was voluntary or involuntary. Rather, as we discuss above, caselaw
teaches that we must look to the context of what occurred. That, in turn, requires us to consider
Rodriguezs second and third arguments for why his termination was involuntary. We also
respectfully disagree with Judge Jordans concurrence for another reason. He suggests that
under Rodriguezs version of events, Gomez possibly may not have had authority from the city
manager when he offered Rodriguez the option to resign. But Rodriguez never argued that
Gomez may not have had authority to offer resignation after delivering the letter to Rodriguez.
While we certainly view the evidence in favor of the non-moving party and draw all reasonable
inferences from that evidence, we are not the non-moving partys lawyer; Defendants have never
had the opportunity to confront this new argument; and the district court never had the chance to
consider it. So we cannot conclude that summary judgment was wrongly entered on the basis of
an argument that Rodriguez never made.
17
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retaliation claim. See Hargray v. City of Hallandale, 57 F.3d 1560, 1567 (1995)
Amendment retaliation is involved. But we can see no reason why the test for
voluntariness that applies in the context of due-process claims would not also
establish that the resignation was involuntarily extracted. Id. at 1568 (citation and
coercion or duress; or (2) where the employer obtains the resignation by deceiving
Rodriguez relies on the first of these two methods to show that his
resignation was not voluntary; he contends that he was under duress, and
18
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coercion, we take into account whether, under the totality of the circumstances,
When we speak of the first factorwhether the employee was given some
alternative to resignationwe are talking about whether the employee had any
termination does not, in and of itself, render that option something less than a real
where the only alternative to resignation is facing possible termination for cause or
resignation is not voluntary where the employer actually lacked good cause to
believe that grounds for the termination and the criminal charges existed. Id.
19
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alternative. And it also shows how the other enumerated factors bear on the
chose resignation, the criminal investigation would be closed and the city would
First, Hargray knew for weeks that he was being investigated, and he
received advance notice of the charges that might be brought against him. Id. at
1569.
hard about his possible alternatives: he had time to decide whether he would
pat and fight, even if it meant criminal charges being pressed. Id.
Third, though Hargray had to make his decision to resign under time
pressure and he did so without counsel, we observed that the circumstances under
which Hargray signed his resignation at the police station were, nonetheless, not
20
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coercive: Hargray was free to leave; he knew the charges against him; he knew the
sources of the allegations; he never asked for more time or to speak with his
at that time revealed a casual atmosphere, during which Hargray at times even
And fourth, we noted that good cause supported the citys criminal
substantial benefit as a result of his decision: the city agreed to cease pursuing
did not save him from investigation or criminal proceedings. In fact, Gomez
refused to tell Rodriguez at all why he was being fired, so Rodriguez could not
And while Defendants suggest that, had Rodriguez elected not to resign, he
could have appealed his termination, its difficult to imagine how when he was not
told why he was being terminated. But even setting aside this practical problem, as
Dorals appeal process applicable to only employees who are terminated for
violating the Employee Code of Conduct. Rule 9.5 of Chapter IX of the Manual
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sets forth the procedure for terminated employees who may take advantage of the
(Emphasis added). When an employee is not fired for cause, termination is not
disciplinary in nature. So because Rodriguez was not fired for violating Dorals
Code of Conduct, the appeal process does not appear to have applied to Rodriguez
at all.
resignation only confirm that his resignation was not voluntary. Unlike Hargray,
who had weeks to consider how to deal with a potential termination, Rodriguez did
not learn of his firing until the moment that he received his letter of termination.
Then he had a mere five minutes to agree to submit his resignationa letter that
Doral wroteor accept his termination. And while Rodriguez testified at his
deposition that he spoke with staff counsel at the PBA in those five minutes before
signing the letter of resignation, under the circumstances of this case, five minutes
was simply not enough to allow Rodriguez to explain his situation to counsel and
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employee submits a resignation. But that is not the law: the law requires us to
conclude that Rodriguezs resignation was not, we find that Rodriguez presented
when his employment with Doral ended abruptly on January 29, 2009.
V.
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discussion of why that is so. But I would not be so quick to dismiss the
termination letter that Chief Gomez handed to Mr. Rodriguez on January 29, 2009.
Dillard Dept. Stores, Inc., 116 F.3d 1432, 1434 (11th Cir. 1997). The first
paragraph of the letter, signed by the City Manager, was unmistakably direct and
the City of Doral is hereby terminated. D.E. 85-3. In Doral the City Manager has
the power to hire and fire, see D.E. 87-1 at 22, and when an employer tells an at-
understood by a reasonable person to mean that employment is over the instant the
English Language 877 (4th ed. 2009) (defining immediately as without delay).
At the very least, a reasonable jury could find that the delivery of the letter ended
Mr. Rodriguezs job. Cf. Brantley v. Smith, 400 So. 2d 443, 444 (Fla. 1981) (a
submission to the proper authority). And if the letter terminated his employment
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with the City, how could Mr. Rodriguez subsequently resign from a non-existent
position?
The majority says that everything that happened after Mr. Rodriguez was
given the letter by Chief Gomez (including Mr. Rodriguezs subsequent decision to
resign) shows that the letter did not constitute a termination. See Maj. Op. at 17
19. I am not sure, however, that we can make such a blanket determination on this
record and would allow the jury to decide the effect of the letter.
instead of being terminated, and once he chose resignation, Chief Gomez called the
City Manager and obtained approval for the resignation. See D.E. 97-7 at 11; D.E.
83-2 at 13; D.E. 82 at 29-30. But Mr. Rodriguez had a different version of
events. Mr. Rodriguez testified that he did not make the initial request to resign,
and that it was Chief Gomez who offered him the option of resigning right after
handing him the termination letter, apparently without seeking or obtaining the
City Managers approval. See D.E. 122-1 at 4 (He then gave me the option to
D.E. 97-1 at 15 (After having terminated me, Chief Gomez gave me the option
to resign instead and gave me five minutes to go out and think about it.).
as well as the reasonable inferences that can be drawn from it, so I do not think it is
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possible to say definitively that Chief Gomez had the City Managers approval
when he offered Mr. Rodriguez the option of resigning. If a jury were to find that
Chief Gomez did not have the City Managers blessing, then maybe everything
that took place after the delivery of the letter to Mr. Rodriguez was just sound and
scene 5 (1606).
26