USCA11 Case: 21-11093 Date Filed: 01/03/2022 Page: 1 of 19
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11093
Non-Argument Calendar
____________________
YVETTE GOMEZ,
Plaintiff-Appellant,
versus
CITY OF DORAL,
MAYOR JUAN CARLOS BERMUDEZ,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:20-cv-20389-JLK
____________________
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2 Opinion of the Court 21-11093
Before JILL PRYOR, NEWSOM, BRANCH, Circuit Judges.
PER CURIAM:
Yvette Gomez is a former police officer for the City of Doral.
In this action against the City and its mayor, Juan Carlos Bermudez,
Gomez alleges that she experienced discrimination on the basis of
sex and was also retaliated against for supporting Councilwoman
Sandra Ruiz, one of Mayor Bermudez’s political adversaries.
Gomez raises a number of claims: (1) sex discrimination in viola-
tion of Title VII and the Florida Civil Rights Act (FCRA), (2) crea-
tion of a hostile work environment by Mayor Bermudez, (3) in-
fringement on Gomez’s First Amendment right to freedom of as-
sociation, (4) infringement on her First Amendment right to free
speech, and (5) intentional infliction of emotional distress. The dis-
trict court dismissed Gomez’s complaint in its entirety for failure
to state a claim upon which relief could be granted. After careful
consideration, we vacate the district court’s judgment in part, af-
firm it in part, and remand this case for further proceedings.
I
We review a district court’s dismissal for failure to state a
claim de novo, accepting all well-pleaded factual allegations as true.
Leib v. Hillsborough Cnty. Pub. Transp. Comm’n, 558 F.3d 1301,
1305 (11th Cir. 2009). To survive a motion to dismiss, a complaint
must set forth “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); see
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21-11093 Opinion of the Court 3
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Although the complaint
need not make “detailed factual allegations,” it must provide “more
than labels and conclusions, and a formulaic recitation of the ele-
ments of a cause of action will not do.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). “Nor does a complaint suffice if it tenders
naked assertions devoid of further factual enhancement.” Iqbal,
556 U.S. at 678 (cleaned up). Instead, the plaintiff’s complaint
“must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Id. (quoting Twombly,
550 U.S. at 570). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Id.
II
We turn first to Gomez’s Title VII and FCRA claims, for
which our analysis is the same. See Harper v. Blockbuster Ent.
Corp., 139 F.3d 1385, 1387 (11th Cir. 1998). Title VII and the FCRA
make it unlawful for an employer “to discharge any individual, or
otherwise to discriminate against any individual with respect to
[her] compensation, terms, conditions, or privileges of employ-
ment, because of such individual’s . . . sex.” 42 U.S.C. § 2000e-
2(a)(1); see also Fla. Stat. § 760.10(1)(a).
Gomez claims that the City violated these laws by subjecting
her, in a “male-dominated work environment,” to the following
forms of disparate treatment: (1) failing to give her promotions
and commendations and treating her “disrespectfully and
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4 Opinion of the Court 21-11093
differently” from her male coworkers, (2) refusing to accommo-
date her scheduling requests after the birth of her child while grant-
ing similar requests to men, (3) reprimanding her for wearing jeans
on the weekend while allowing men to do the same, (4) using sur-
veillance cameras to spy on her without doing the same to any
male officers, (5) reassigning her to the midnight shift while per-
mitting a man to work her previous day shift, (6) placing a tracker
on her police car, (7) increasing the length of her shifts from ten to
twelve hours to interfere with her childcare schedule, (8) refusing
to pay her overtime, and (9) advising her that she should resign
“before she was discriminatorily terminated.” Gomez further al-
leges that termination would have “permanently jeopardize[d] her
ability to ever work in another law enforcement agency” due to the
policies of many Florida police departments. So, faced with the
prospect of termination and a “working environment [that] grew
incredibly hostile, discriminatorily abusive, and intolerable,”
Gomez claims that she “was constructively terminated and forced
to resign.”
The district court held that Gomez’s complaint was deficient
because she “failed to explain how” any other male officers refer-
enced in her complaint were “similarly situated to her ‘in all mate-
rial respects.’” Doc. 17 at 3–4 (quoting Lewis v. City of Union City,
918 F.3d 1213, 1218 (11th Cir. 2019) (en banc)). But, as Gomez ar-
gued both here and below, that wasn’t a valid reason to dismiss her
complaint. To be sure, one way for a plaintiff “to survive summary
judgment” is to satisfy “the burden-shifting framework set out in
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21-11093 Opinion of the Court 5
McDonnell Douglas,” whereby the plaintiff shows “that her em-
ployer treated ‘similarly situated’ employees outside her class more
favorably.” Lewis, 918 F.3d at 1220–21 (emphasis added); see
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). “The
prima facie case under McDonnell Douglas, however, is an eviden-
tiary standard, not a pleading requirement.” Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 510 (2002); see Twombly, 550 U.S. at
569–70. After all, “the McDonnell Douglas framework does not
apply in every employment discrimination case.” Swierkiewicz,
534 U.S. at 511; see Lewis, 918 F.3d at 1220 n.6. And it is “incon-
gruous” to demand that a plaintiff “plead more facts than [she] may
ultimately need to prove to succeed on the merits.” Swierkiewicz,
534 U.S. at 511–12. Thus, following Supreme Court precedent, we
have held that a plaintiff’s “complaint ‘need not allege facts suffi-
cient to make out a classic McDonnell Douglas prima facie case’”
to survive a motion to dismiss. Surtain v. Hamlin Terrace Found.,
789 F.3d 1239, 1246 (11th Cir. 2015) (per curiam) (quoting Davis v.
Coca-Cola Bottling Co. Consol., 516 F.3d 955, 974 (11th Cir. 2008)).
Yet that’s precisely what the district court required Gomez
to allege. In doing so, it “did not use the Iqbal/Twombly plausibil-
ity standard” that our precedents—and those of the Supreme
Court—demand. Id.; see Swierkiewicz, 534 U.S. at 511 (holding
that, in Title VII cases, “the ordinary rules for assessing the suffi-
ciency of a complaint apply”). Those decisions make clear that
Gomez “need not prove [her] case on the pleadings.” Speaker v.
United States HHS CDC & Prevention, 623 F.3d 1371, 1386 (11th
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6 Opinion of the Court 21-11093
Cir. 2010). Hence, by faulting Gomez for failing to “ma[ke] out a
prima facie case of [sex] discrimination under McDonnell Doug-
las,” the district court erred as a matter of law. Surtain, 789 F.3d at
1246; see Swierkiewicz, 534 U.S. at 508.
The pertinent question, as always, is whether Gomez’s com-
plaint “provide[s] ‘enough factual matter (taken as true) to suggest’
intentional [sex] discrimination.” Davis, 516 F.3d at 974 (quoting
Twombly, 550 U.S. at 556). In other words, her complaint “must
merely provide enough factual material to raise a reasonable infer-
ence, and thus a plausible claim,” that her employer violated Title
VII and the FCRA. Speaker, 623 F.3d at 1386. If so, she may pro-
ceed to discovery on her claims. See Iqbal, 556 U.S. at 678–79.
Having set forth the appropriate standard, we decline to
consider how it applies at this juncture. Because the district court
failed to conduct the proper inquiry—and because the defendants
followed suit in their appellate briefing—we think it more prudent
for the parties to present their arguments to the district court in the
first instance. We therefore vacate the dismissal of Gomez’s Title
VII and FCRA claims and remand for reconsideration under the
correct standard. See Surtain, 789 F.3d at 1246. 1
1 In remanding, we express no view on whether Gomez has alleged sufficient
facts to support a constructive discharge theory of sex discrimination as well.
Though unclear from its order, the district court’s rejection of this separate,
“aggravated” theory of sexual harassment, Pa. State Police v. Suders, 542 U.S.
129, 146 (2004), seems to have been premised on Gomez’s failure to identify
male comparators that were similarly situated to her in all material respects.
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21-11093 Opinion of the Court 7
III
Moving along to Gomez’s hostile work environment
claim—which was brought under 42 U.S.C. § 1983—she asserts
that Mayor Bermudez discriminated against her on the basis of sex.
This, she claims, violated her rights under the Equal Protection
Clause. 2
“To establish a hostile work environment claim under the
Equal Protection Clause,” a public employee “must show harassing
behavior ‘sufficiently severe or pervasive to alter the conditions of
[her] employment.’” Bryant v. Jones, 575 F.3d 1281, 1296 (11th Cir.
2009) (quoting Pa. State Police v. Suders, 542 U.S. 129, 133 (2004)).
That is, the district court viewed such comparators as mandatory to support
any theory of liability under Title VII, even at the pleading stage. As explained
above, that premise was faulty. The parties may argue—and the district court
may reevaluate—Gomez’s constructive discharge theory on remand, using
the correct plausibility standard.
2 To the extent Gomez seeks to hold Mayor Bermudez liable in his individual
capacity under Title VII, this argument fails. Our court has held “that ‘relief
under Title VII is available against only the employer and not against individ-
ual employees whose actions would constitute a violation of the Act.’” Martin
v. Fin. Asset Mgmt. Sys., 959 F.3d 1048, 1051 n.2 (11th Cir. 2020) (quoting
Dearth v. Collins, 441 F.3d 931, 933 (11th Cir. 2006) (per curiam)). In any
event, “the analysis of disparate treatment claims under § 1983 is identical to
the analysis under Title VII where the facts on which the claims rely are the
same.” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). So, whichever
statutory vehicle Gomez is attempting to use with respect to Mayor Bermu-
dez, we would reject Gomez’s theory of hostile work environment for the
reasons described in text.
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8 Opinion of the Court 21-11093
This unwelcome harassment, moreover, must be “based on a pro-
tected characteristic of the employee,” such as the employee’s sex.
Id. (quoting Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269,
1275 (11th Cir. 2002)).
Like the district court, we conclude that the instant com-
plaint doesn’t allege any facts from which we might plausibly infer
that the Mayor—him being the sole defendant on this count—har-
assed Gomez based on her sex. Simply put, Gomez’s conclusory
assertion that the Mayor harassed her on this basis is insufficient to
withstand a motion to dismiss. See Cox v. Nobles, 15 F.4th 1350,
1357 (11th Cir. 2021) (“A district court may properly dismiss a com-
plaint if it rests only on conclusory allegations, unwarranted factual
deductions or legal conclusions masquerading as facts.” (quotation
marks omitted)). In fact, Gomez’s speculative theory is contra-
dicted by the factual allegations in her complaint, which suggest
that the Mayor targeted Gomez for a different reason—her support
for the Mayor’s political rival, Councilwoman Ruiz. See Edwards
v. Prime, Inc., 602 F.3d 1276, 1301 (11th Cir. 2010). Absent “more
by way of factual content” suggesting that the Mayor personally
harassed Gomez because of her sex, we conclude that Gomez
hasn’t nudged this claim “across the line from conceivable to plau-
sible.” Iqbal, 556 U.S. at 683 (quotation marks omitted).
In so holding, we do not decide whether Gomez has alleged
a hostile work environment more generally, or whether the City
can be held responsible under Title VII for the allegedly discrimi-
natory conduct of its employees. But in § 1983 suits, “a plaintiff
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21-11093 Opinion of the Court 9
must plead that each Government-official defendant, through the
official’s own individual actions, has violated the Constitution.” Iq-
bal, 556 U.S. at 676. Again, Gomez brought her equal protection
claim only against Mayor Bermudez. Her claim thus fails for the
simple reason that no factual allegations reasonably imply that the
Mayor harbored any sex-based animus in taking the actions that he
did.
IV
Next, we turn to Gomez’s freedom of association claim.
“The First Amendment protects political association as well as po-
litical expression.” Rodriguez v. City of Doral, 863 F.3d 1343, 1349
(11th Cir. 2017) (quotation omitted). As such, the government may
not take adverse action against a public employee “solely because
of [her] political association or beliefs.” Id. at 1350.
Gomez argues that she was treated improperly due to her
political affiliation with Councilwoman Ruiz, and she seeks to hold
the City liable for the treatment she faced. However, as the district
court rightly observed, “a local government may not be sued under
§ 1983 for an injury inflicted solely by its employees or agents.”
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). Instead,
“recovery from a municipality is limited to acts that are, properly
speaking, acts ‘of the municipality’—that is, acts which the munic-
ipality has officially sanctioned or ordered.” Pembaur v. City of
Cincinnati, 475 U.S. 469, 480 (1986). To impose § 1983 liability on
the City, then, Gomez must show that her constitutional rights
were violated by the City itself through some unconstitutional
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10 Opinion of the Court 21-11093
policy or custom that is attributable to the City. See id.; McDowell
v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). 3
Gomez “has two methods by which to establish [the City’s]
policy: identify either (1) an officially promulgated [City] policy or
(2) an unofficial custom or practice of the [City] shown through the
repeated acts of a final policymaker for the [City].” Grech v. Clay-
ton County, 335 F.3d 1326, 1329 (11th Cir. 2003) (en banc). Lacking
anything official, Gomez turns to option two, arguing that the City
had a practice or custom of punishing anyone that supported
Councilmember Ruiz.
We disagree. “In order for a plaintiff to demonstrate a policy
or custom, it is generally necessary to show a persistent and wide-
spread practice.” McDowell, 392 F.3d at 1290 (quotation marks
omitted). “Moreover, actual or constructive knowledge of such
customs must be attributed to the governing body of the munici-
pality.” Depew v. City of St. Marys, 787 F.2d 1496, 1499 (11th Cir.
1986); see Khoury v. Miami-Dade Cnty. Sch. Bd., 4 F.4th 1118, 1131
3 In her complaint, Gomez brought the same freedom of association claim
against Mayor Bermudez. But the district court construed this claim as one
brought against the Mayor in his official capacity. Gomez doesn’t dispute the
district court’s characterization on appeal. As a result, we too will analyze the
claim as one against the Mayor in his official capacity. Our analysis for that
claim is accordingly the same as that for Gomez’s § 1983 claim against the City.
See Hafer v. Melo, 502 U.S. 21, 25 (1991) (“Because the real party in interest in
an official-capacity suit is the governmental entity and not the named official,
the entity’s policy or custom must have played a part in the violation of federal
law.” (quotation marks omitted)).
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21-11093 Opinion of the Court 11
(11th Cir. 2021). Here, Gomez has failed to plausibly allege that
Mayor Bermudez’s meddling in employment-related affairs gives
rise to municipal liability. For one thing, she didn’t allege that Ber-
mudez had final policymaking authority to hire, fire, or supervise
the City’s police officers. Indeed, by the City’s charter, that author-
ity is explicitly vested elsewhere—in the City Manager. See Doral
Municipal Charter, art. III, § 3.04 (“The [City] Manager
shall . . . [b]e responsible for the hiring, supervision and removal of
all City employees . . . .”). In addition, rather than suggest that
Mayor Bermudez possessed the “[a]uthority to make municipal
policy” in this area, Pembaur, 475 U.S. at 483, Gomez’s complaint
alleges the opposite—that Mayor Bermudez “violated” the City
Charter and overstepped his authority.
It doesn’t matter that the Mayor may have had significant
power to act for the City in other respects. To impose municipal
liability, the challenged action must have been taken pursuant to a
policy adopted by the official or officials responsible under local law
for making policy “in a particular area, or on a particular issue.”
McMillian v. Monroe County, 520 U.S. 781, 785 (1997); see Pem-
baur, 475 U.S. at 481 (“Municipal liability attaches only where the
decisionmaker possesses final authority to establish municipal pol-
icy with respect to the action ordered.”); Manor Healthcare Corp.
v. Lomelo, 929 F.2d 633, 638 (11th Cir. 1991) (“[N]o matter how
much power an official has, no municipal liability exists if that offi-
cial does not set the policy at issue.” (quotation omitted)). Only
then can it be said that the rogue official is “acting on behalf of the
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12 Opinion of the Court 21-11093
municipality,” such that the city can be held responsible. Sewell v.
Town of Lake Hamilton, 117 F.3d 488, 489 (11th Cir. 1997). That’s
not the case here. To hold otherwise would in essence subject the
City to vicarious liability. And that we cannot do. See Monell, 436
U.S. at 691.
Likewise, Gomez has failed to allege that the maltreatment
of officers who supported Councilwoman Ruiz amounted to a
“custom” of the City—a practice “so widespread as to have the
force of law.” Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397,
404 (1997). In such a scenario, the “longstanding and widespread
practice is deemed authorized by the policymaking officials be-
cause they must have known about it but failed to stop it.” Brown
v. City of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991); see
City of St. Louis v. Praprotnik, 485 U.S. 112, 130 (1988) (plurality
op.). Yet we don’t find that theory plausible either. Gomez says
that several officers received adverse treatment on the job—pur-
portedly because of their affiliation with Councilmember Ruiz.
But, with the exception of Detective Rodriguez, Gomez provides
no facts to support her bald and conclusory allegations. See Iqbal,
556 U.S. at 678. Left with a single instance of an alleged constitu-
tional violation, Gomez hasn’t stated a plausible claim against the
City. Even construed in the light most favorable to Gomez, her
complaint doesn’t exhibit “a series of constitutional violations from
which deliberate indifference can be inferred” on the part of the
City’s policymakers. Craig v. Floyd County, 643 F.3d 1306, 1311
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21-11093 Opinion of the Court 13
(11th Cir. 2011) (quotation omitted); see Weiland v. Palm Beach
Cnty. Sheriff’s Off., 792 F.3d 1313, 1328–29 (11th Cir. 2015).
Accordingly, Gomez hasn’t plausibly stated a claim that the
City violated her First Amendment right to freedom of association.
V
We now move to Gomez’s First Amendment retaliation
claim. Gomez believes that City officials retaliated against her for
providing a sworn statement to the Florida Department of Law En-
forcement (FDLE) during its investigation into the criminal activity
of the local police chief and his command staff.
The Supreme Court “has made clear that public employees
do not surrender” their free speech rights entirely “by reason of
their employment.” Garcetti v. Cabellos, 547 U.S. 410, 417 (2006).
In particular, the First Amendment still provides some protection
for a public employee who speaks (1) “as a citizen” (2) “addressing
matters of public concern.” Id.; see Alves v. Bd. of Regents of the
Univ. Sys. of Ga., 804 F.3d 1149, 1160 (11th Cir. 2015). If both these
requirements are met, then a court is to “balance” the interests of
the employee, “as a citizen, in commenting upon matters of public
concern and the interest of the State, as an employer, in promoting
the efficiency of the public services it performs through its employ-
ees.” Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968); see Con-
nick v. Myers, 461 U.S. 138, 150 (1983).
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14 Opinion of the Court 21-11093
A
We first address whether Gomez was speaking as a citizen.
As the Court in Garcetti explained, an employee does not speak “as
a citizen” if her speech “owes its existence to [the] public em-
ployee’s professional responsibilities.” 547 U.S. at 421–22. In mak-
ing this determination, though, the “critical question” is “whether
the speech at issue is itself ordinarily within the scope of an em-
ployee’s duties, not whether it merely concerns those duties.”
Lane v. Franks, 573 U.S. 228, 240 (2014). Speech that “simply re-
lates to public employment or concerns information learned in the
course of public employment” remains eligible for First Amend-
ment protection. Id. at 239.
So it is here. Gomez’s speech may have concerned infor-
mation that she learned on the job. But construing the complaint
in the light most favorable to Gomez, she wasn’t “simply perform-
ing . . . her job duties” when she rendered a sworn statement to the
FDLE. Garcetti, 547 U.S. at 423. After all, Gomez worked for a
municipality, the City of Doral. And the FDLE is a distinct law-
enforcement agency of the State of Florida, not her employer. See
Fla Stat. §§ 20.04, 20.201. Gomez’s speech also occurred at an
FDLE office, rather than at work. And nothing from the face of the
complaint suggests that Gomez’s “ordinary job responsibilities” as
a detective were implicated by this outside investigation into a pub-
lic corruption scandal. Carollo v. Boria, 833 F.3d 1322, 1330 (11th
Cir. 2016). Like any other private citizen who possessed infor-
mation relevant to an investigation, it is at least plausible that
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21-11093 Opinion of the Court 15
Gomez’s sworn statement to the FDLE was provided as an ordi-
nary witness—as a citizen—and not as a detective. See Cooper v.
Smith, 89 F.3d 761, 765 (11th Cir. 1996); Lane, 573 U.S. at 238
(“Truthful testimony under oath by a public employee outside the
scope of [her] ordinary job duties is speech as a citizen for First
Amendment purposes.”).
B
On to the public-concern inquiry. “To fall within the realm
of ‘public concern,’ an employee’s speech must relate to ‘any mat-
ter of political, social, or other concern to the community.’” Alves,
804 F.3d at 1162 (quoting Connick, 461 U.S. at 146). “Whether an
employee’s speech addresses a matter of public concern must be
determined by the content, form, and context of a given statement,
as revealed by the whole record.” Connick, 461 U.S. at 147–48. But
the “most important factor” is the content of the speech. Mitchell
v. Hillsborough County, 468 F.3d 1276, 1284 (11th Cir. 2006).
Applying this test, we conclude that some—but not all—of
Gomez’s speech touched on a matter of public concern. See Con-
nick, 461 U.S. at 149. In the context of an investigation into the
“impropriety and criminal activity” of a local police chief, Gomez
(1) discussed problems she had with the chief that were “adminis-
trative in nature,” and (2) provided information to facilitate the
criminal investigation. Only the latter speech is protected. The
former is “speech that concerns internal administration” of the po-
lice department “and personal grievances,” which renders it ineli-
gible for constitutional protection. Maples v. Martin, 858 F.2d
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16 Opinion of the Court 21-11093
1546, 1552 (11th Cir. 1988); see Morgan v. Ford, 6 F.3d 750, 755
(11th Cir. 1993) (per curiam). But, to the extent Gomez recounted
her “personal knowledge of information relevant to the investiga-
tion” or directed the FDLE to others who she believed had “infor-
mation about alleged criminal activity involving the Chief of Police
and certain members of his command staff,” such speech regarded
a matter of public concern. “Exposing governmental . . . miscon-
duct is a matter of considerable significance.” Garcetti, 547 U.S. at
425; see Lane, 573 U.S. at 241. And “[t]here can be no doubt that
corruption in a police department is an issue of public concern.”
Cooper, 89 F.3d at 765. Moreover, the “point of the speech in ques-
tion” was to help “bring [this] wrongdoing to light.” Alves, 804
F.3d at 1167 (quoting Linhart v. Glatfelter, 771 F.2d 1004, 1010 (7th
Cir. 1985)); see Connick, 461 U.S. at 148. Finally, the form and con-
text of the speech—a sworn statement to the FDLE that could help
produce criminal charges—fortify our conclusion that Gomez has
plausibly alleged that she was speaking on a matter of public con-
cern. See Lane, 573 U.S. at 241. As such, Gomez has successfully
alleged that her speech was eligible for constitutional protection.
See, e.g., Cooper, 89 F.3d at 765 (holding that a county deputy’s
cooperation with a GBI investigation into corruption in the Sher-
iff’s Department constituted speech on a matter of public concern);
Stanley v. City of Dalton, 219 F.3d 1280, 1288–89 (11th Cir. 2000)
(similar); Fikes v. City of Daphne, 79 F.3d 1079, 1084 (11th Cir.
1996) (similar).
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21-11093 Opinion of the Court 17
C
Having concluded that Gomez’s speech facilitating the crim-
inal investigation implicates the First Amendment, two questions
remain. First, has Gomez plausibly shown that her “free speech
interests outweighed the employer’s interest in effective and effi-
cient fulfillment of its responsibilities”? Cook v. Gwinnett Cnty.
Sch. Dist., 414 F.3d 1313, 1318 (11th Cir. 2005). Second, if the bal-
ance does favor Gomez, has she plausibly alleged that the protected
speech “played a substantial part in [an] adverse employment ac-
tion”? Id. The district court did not address either question. Nor
have the parties briefed these issues on appeal. Thus, we think it
inappropriate to reach out and decide them ourselves. We will in-
stead vacate the district court’s opinion with respect to Gomez’s
First Amendment retaliation claim and allow the parties to raise
these arguments—if they so choose—on remand.
VI
Finally, we turn to Gomez’s IIED claim against Mayor Ber-
mudez. To state such a claim under Florida law, a plaintiff must
allege (1) intentional or reckless conduct (2) that is outrageous and
(3) causes the victim emotional distress (4) that is severe. Kim v.
Jung Hyun Chang, 249 So. 3d 1300, 1305 (Fla. Dist. Ct. App. 2018).
The district court held that, as a matter of law, the allegations
against Mayor Bermudez were “not sufficiently ‘outrageous’ to
support a claim for IIED.” Doc. 17 at 7.
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18 Opinion of the Court 21-11093
We agree. To show outrageousness, the plaintiff must al-
lege conduct that is “so outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized commu-
nity.” Metro. Life Ins. Co. v. McCarson, 467 So. 2d 277, 278–79
(Fla. 1985) (citing Restatement (Second) of Torts § 46 (1965)). It is
not enough “that the defendant has acted with an intent which is
tortious or even criminal, or that he has intended to inflict emo-
tional distress, or even that his conduct has been characterized by
‘malice,’ or a degree of aggravation which would entitle the plain-
tiff to punitive damages for another tort.” Williams v. City of Min-
neola, 575 So. 2d 683, 691 (Fla. Dist. Ct. App. 1991) (quotation omit-
ted). Nor will liability “extend to mere insults, indignities, threats,
or false accusations.” Williams v. Worldwide Flight Servs. Inc., 877
So. 2d 869, 870 (Fla. Dist. Ct. App. 2004) (per curiam); see also
Lopez v. Target Corp., 676 F.3d 1230, 1236 (11th Cir. 2012) (“Flor-
ida courts have been reluctant to find claims for [IIED] based solely
on allegations of verbal abuse.” (quotation omitted)).
The conduct alleged by Gomez doesn’t rise to the level of
outrageousness required by Florida law. Bermudez’s actions of
publicly disparaging Gomez, wrongly accusing her of reporting
misconduct, and lodging a complaint that caused her to have a
tracker placed on her police car may have been inappropriate. But
those actions were not “beyond all possible bounds of decency.”
McCarson, 467 So. 2d. at 279. Indeed, Florida courts have repeat-
edly held that conduct far worse than that alleged here is
USCA11 Case: 21-11093 Date Filed: 01/03/2022 Page: 19 of 19
21-11093 Opinion of the Court 19
insufficient to maintain a claim for IIED. See, e.g., Worldwide
Flight, 877 So. 2d at 870 (pattern of harassment at work, including
(1) supervisor making racial epithets in front of plaintiff and to oth-
ers over the work radio, (2) creating “false disciplinary related inci-
dents” to justify termination, (3) falsely accusing plaintiff of theft,
(4) refusing to allow plaintiff to work with other African Ameri-
cans, (5) repeatedly threatening to terminate plaintiff, and (6) forc-
ing plaintiff to work in “dangerous” conditions); Diamond v.
Rosenfeld, 511 So. 2d 1031, 1033–36 (Fla. Dist. Ct. App. 1987) (pat-
tern of harassment to make plaintiffs’ lives “as miserable as possi-
ble,” including (1) threatening to shoot their dog, (2) directing anti-
Semitic remarks toward plaintiffs, (3) falsely accusing one plaintiff
of attempted rape, (4) making repeated “threatening and/or har-
assing telephone calls” to plaintiffs, (5) cursing plaintiffs and their
children, and (6) directing “prayers for the dead” against plaintiffs
and their children); see also Mundy v. S. Bell Tel. & Tel. Co., 676
F.2d 503, 505–06 (11th Cir. 1982) (per curiam) (collecting employ-
ment-related cases denying IIED claims).
Thus, we hold that the district court correctly dismissed
Gomez’s IIED claim.
* * *
For the foregoing reasons, we VACATE the district court’s
judgment with respect to Gomez’s Title VII, FCRA, and First
Amendment retaliation claims (Counts I, II, and VI), AFFIRM the
dismissal of all other claims, and REMAND this case to the district
court for further proceedings.