Rogers v. Miller

United States Court of Appeals,

Eleventh Circuit.

No. 94-2112.

T. Dexter ROGERS, Robert Aoun, Gregory Shea, Burton "Jimmy"
Brown, Plaintiffs-Appellees,

v.

C.W. MILLER, individually and in his capacity as Brevard County
Sheriff; Ron Clark, individually and in his capacity as a Chief
Deputy in the Brevard County Sheriff's Office; Jimmy Jackson,
individually and in his capacity as a Lieutenant in the Brevard
County Sheriff's Office; Thomas Edwards, individually and in his
capacity as a Commander in the Brevard County Sheriff's Office;
Vernon Weekly, individually and in his capacity as a Commander in
the Brevard County Sheriff's Office; Thomas M. Robinson,
individually and in his capacity as an Inspector in the Brevard
County Sheriff's Office, Defendants, Cross-Claim Defendants-
Appellants,

James Donn, etc., et al., Defendants-Cross-Claim Defendants,

Brevard County, Defendant-Cross-Claimant.

June 22, 1995.

Appeal from the United States District Court for the Middle
District of Florida. (No. 92-983-CIV-ORL-19), Patricia C. Fawsett,
Judge.

Before HATCHETT, Circuit Judge, HENDERSON, Senior Circuit Judge,
and YOUNG*, Senior District Judge.

PER CURIAM:

The appellants in this case, various members of the Brevard

County, Florida Sheriff's Department ("Department"), seek review of

an order entered in the United States District Court for the Middle

District of Florida, denying their motions for summary judgment

grounded upon qualified immunity in an action filed pursuant to 42

*
Honorable George C. Young, Senior U.S. District Judge for
the Middle District of Florida, sitting by designation.
U.S.C. § 1983.1 We reverse the denial of qualified immunity and

remand the case for further proceedings.

I. BACKGROUND

At the time of the events giving rise to the complaint, the

plaintiffs, T. Dexter Rogers, Robert Aoun, Gregory Shea and Burton

"Jimmy" Brown, were members of the Department's "D-Squad." During

the 1992 political campaign for the Office of Sheriff, they

supported George DeRise, the opponent of the incumbent sheriff,

C.W. Miller. Prior to the November 1992 election, the plaintiffs

filed this § 1983 action alleging that Miller and nine other

supervisory members of the Department (James Donn, Ron Clark, Jimmy

Jackson, Tommy Edwards, Vernon Weekley, John Cappolla, Thomas M.

Robinson, Thomas Fair and Michael Wong), infringed on their First

Amendment rights by taking adverse employment action against them

in retaliation for their political support of DeRise. The

plaintiffs sued the defendants in their individual and official

capacities and sought damages, unspecified injunctive relief, costs

and attorney's fees. After the lawsuit was instituted, Miller, who

was reelected, directed that the plaintiffs be transferred, to the

extent practicable, to positions in which they would not be under

the direct supervision of the above named defendants. The

1
Section 1983 provides in relevant part:

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory ... subjects, or causes to be subjected,
any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress.
resulting transfers did not involve demotions in pay or rank for

any of the plaintiffs, but did cause them alleged hardship or loss

of supervisory responsibilities.2 The plaintiffs thereafter

amended the complaint to include, inter alia, allegations that the

new assignments were retaliatory and constituted constructive

discharges from their former positions.3

The defendants subsequently sought summary judgment, both on

the merits and on qualified immunity grounds. The district court

granted judgment to all the defendants in their official capacities

except for Miller. It also dismissed the constructive discharge

claims because the plaintiffs failed to show that their working

conditions after the transfers were such that a reasonable person

would have felt compelled to resign. With respect to the First

Amendment cause of action against the defendants in their

individual capacities, the court granted judgment on the merits to

Donn, Cappolla, Fair and Wong, finding there was no evidence that

these defendants participated in any adverse employment conduct

against the plaintiffs due to their political support of DeRise.

The court denied judgment on the merits to Miller, Clark, Jackson,

Robinson, Edwards and Weekley, and also held that they were not

entitled to qualified immunity from damages. Those defendants

2
Shea was transferred from the relief shift to the day
shift, which put him to the trouble and expense of having to
enroll his children in day care. Aoun contends that after he was
transferred, he was deprived of his duties as a Field Training
Officer. All of the plaintiffs allege that the changes imposed
an inconvenience on their daily routines.
3
The constructive discharge claims were filed on behalf of
Brown, Rogers and Aoun, who resigned after they were transferred.
appeal only the denial of their qualified immunity defense.

II. DISCUSSION

Although the district court did not resolve all of the issues

pending in the case, the appellate court has jurisdiction, under

the collateral order doctrine, to review the denial of the motion

for summary judgment grounded on qualified immunity. Mitchell v.

Forsyth, 472 U.S. 511, 524-30, 105 S.Ct. 2806, 2814-17, 86 L.Ed.2d

411, 424-27 (1985). Qualified, or "good faith" immunity shields

government officials from liability for civil damages arising out

of the performance of their discretionary functions "insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known."4 Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,

2738, 73 L.Ed.2d 396, 410 (1982). That the defendants' actions

fell within the scope of their discretionary duties is without

dispute. Thus, our inquiry is confined to whether the record,

taken in the light most favorable to the plaintiffs, reveals

violations of clearly established law. Bennett v. Parker, 898 F.2d

1530, 1532 (11th Cir.1990), cert. denied, 498 U.S. 1103, 111 S.Ct.

1003, 112 L.Ed.2d 1085 (1991); see also id. at 1535 n. 2 (when

evaluating the qualified immunity defense in the context of a

motion for summary judgment, the court must consider all facts

fairly inferable from the record in favor of the plaintiff, even if

4
The qualified immunity defense has no application to
charges asserted against government actors in their official
capacities, or to attempts to gain injunctive relief. Lassiter
v. Alabama A & M Univ., 28 F.3d 1146, 1149 n. 2 (11th Cir.1994).
The sole issue before us is whether the district court erred by
denying the defense with respect to the alleged liability of the
defendants in their individual capacities.
in dispute, and decide whether, under those facts, the defendant's

conduct violated law clearly established at the time) (Tjoflat,

C.J., concurring). This is purely a question of law, which we

review de novo. Elder v. Holloway, 510 U.S. ----, ----, 114 S.Ct.

1019, 1023, 127 L.Ed.2d 344, 351 (1994).

This court has observed that "defendants who allegedly violate

public employees' First Amendment freedoms rarely act within

"clearly established' contours of law[.]" Hansen v. Soldenwagner,

19 F.3d 573, 575 (11th Cir.1994).

The Supreme Court has never established a bright-line standard
for determining when the State as an employer may take action
adverse to an employee in response to that employee's speech.
Instead, the Court has balanced the interest of the employee
in commenting on matters of public concern against the
interest of the employer in performing public services
efficiently. The court must necessarily balance these
interests on a case-by-case basis. Because of this
case-by-case approach, "[t]here will rarely be a basis for
[an] a priori judgment that the termination or discipline of
a public employee violated "clearly established'
constitutional rights." Because no bright-line standard puts
the reasonable public employer on notice of a constitutional
violation, the employer is entitled to immunity except in the
extraordinary case where [the] Pickering balancing [test]
would lead to the inevitable conclusion that the [adverse
action] was unlawful.

Dartland v. Metropolitan Dade County, 866 F.2d 1321, 1323 (11th

Cir.1989) (referring to Pickering v. Board of Educ., 391 U.S. 563,

88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)) (footnote and citations

omitted) (alterations added and in the original) (emphasis added).

Under the Pickering balancing test, the court first

determines whether the speech in question involves a matter of

public concern warranting First Amendment protection. Bryson v.

City of Waycross, 888 F.2d 1562, 1565 (11th Cir.1989). If so, the

court then weighs the employee's interest in speaking out, "against
"the interest of the state, as an employer, in promoting the

efficiency of the public services it performs through its

employees.' " Id. (quoting Pickering, 391 U.S. at 568, 88 S.Ct. at

1734-35, 20 L.Ed.2d at 817). Because entitlement to qualified

immunity is fact specific, before engaging in this analysis we must

examine in detail the contentions and inferences arising from the

record regarding each of the defendants' conduct.

A. Weekley

On September 15, 1992, Weekley informed Aoun that Miller was

extremely upset over the plaintiffs' political views and asked him

whether the plaintiffs were exerting pressure on the other members

of "D-Squad" to support DeRise. Weekley told Aoun he did not want

to see Aoun get hurt and advised him to avoid politics. That same

day, Weekley spoke with Rogers because Rogers' name was on a list

of contributors to the DeRise campaign. Weekley advised Rogers

that he heard that Rogers might have violated a prohibition against

on-duty campaigning by purchasing stamps for the DeRise campaign

during working hours and warned him, "you're not prepared for the

grief you're going to have ... more grief than you can stand[,]"

because of his support of DeRise.5

B. Jackson

5
The plaintiffs also advanced claims in connection with
conversations between Weekley and Rogers about Rogers' plan to
move into the house of friend who was embroiled in a property
dispute with a neighbor and had threatened to sue the Department
for failing to enforce a resulting restraining order. According
to the complaint, Weekley prohibited Rogers from moving in with
the friend because "it was not a good year to embarrass the
Sheriff." It is undisputed that all of this took place before
Weekley had knowledge of Rogers' affiliation with DeRise. These
contentions are therefore irrelevant to the First Amendment
retaliation charges.
 On August 19, 1992, Jackson telephoned Shea and advised him,

as a friend, to reevaluate his support for DeRise and to stay out

of politics. Shea did not regard Jackson's comments as threatening

and understood that Jackson was expressing his personal opinion.

On September 18, 1992, Jackson addressed a training class attended

by the plaintiffs and others. He informed those present that

Miller had demoted him in the past because he refused to fire a

deputy who had openly supported one of Miller's political

opponents. He advised the members of the class to "keep their

political opinions to themselves until [they were] in the voting

booth."

C. Robinson

The allegations against Robinson concern a tour of the Sharpes

Correctional Facility, which was arranged for the benefit of Shea

on September 28, 1992. The tour was in response to a telephone

call Shea made to a television talk show during an appearance by

Miller and DeRise. Shea asked the candidates whether the minimum

security section of the jail was being fully staffed and utilized.

In Robinson's opinion, Shea's question had the potential to

jeopardize a pending bond referendum for jail expansion, which

could adversely affect the morale of the facility's staff. He

believed Shea should have expressed his concerns privately through

the chain of command rather than publicly. Robinson conducted the

tour in a manner which Shea felt was designed to embarrass him and

reminded Shea that he owed his loyalty to Miller.

D. Clark

In September 1992, Clark learned that Brown made derogatory
comments about Clark and Miller while dining at a local restaurant

with members of the DeRise campaign. In response, Clark instructed

Weekley to tell Brown "that the Sheriff is a politician and is fair

game, but I am not. I know what he said about me at Perkins

Restaurant last week and, if it happens again, I will deal with him

personally."

E. Edwards

In January 1993, Edwards classified Rogers as chronically

absent, which, under Department rules, rendered him ineligible for

transfers and tuition reimbursement for six months and required him

to produce a doctor's note for future sick days. It is clear that

between November 1992 and January 1993, Rogers was not present for

twenty-three of his fifty-three scheduled work days. Rogers

contends that most of his absences were due to work-related stress

or illnesses, therefore, they should not have been counted against

him. He failed to offer this excuse at the time of the absences,

however, and he made no attempt to administratively appeal the

chronic absentee decision.

F. Miller

The plaintiffs contend that Miller either directed or ratified

the foregoing course of conduct in order to chill their speech

rights and in retaliation for their support of DeRise. He also

instructed Clark to transfer the plaintiffs after some of the

defendants expressed discomfort with exercising supervisory roles

during the pendency of the present litigation. Pursuant to

Miller's order, Rogers was transferred from Weekley's command in

the central precinct to Edwards' supervision in the north precinct.
Although Edwards was a party to the lawsuit, at that time the
6
complaint contained no allegations against him. Brown and Aoun

were transferred from the central precinct to the south precinct,

where none of the defendants worked. Shea remained in the central

precinct, but was switched from the relief shift to the day shift

in order to reduce his contact with the defendants.

In denying qualified immunity, the district court held that

this court's decision in Stough v. Gallagher, 967 F.2d 1523 (1992),

should have put the defendants on notice that their actions were

unlawful. The Stough case arose out of the 1988 political campaign

for the Office of Sheriff in Orange County, Florida. After the

incumbent sheriff announced he would not seek reelection, Walter J.

Gallagher, a captain and sector commander, sought the post.

Stough, also a captain and sector commander, was a vocal supporter

of Gallagher's opponent, Terry James. Gallagher won the election

and subsequently demoted Stough to the rank of sergeant despite

Stough's thirteen years of service on the force. Gallagher later

assigned Stough the duties of a lieutenant, but refused to confer

that title upon him or to authorize the salary and benefits

commensurate with the position. Stough filed a § 1983 action

against Gallagher in which he alleged that the demotion and

subsequent withholding of promotion were in retaliation for his

political speech in favor of James. The district court denied

Gallagher's motion for summary judgment based upon qualified

immunity and he appealed.

6
A specific claim was not lodged against Edwards until after
he placed Rogers on the chronic absentee list in January 1993.
 In applying the Pickering balancing test, a panel of this

court recognized that political speech, which addresses public

issues or candidates running for public office, "occupies the

"highest rung of the hierarchy of First Amendment values' entitling

it to special protection." Id. at 1529 (quoting Connick v. Myers,

461 U.S. 138, 145, 103 S.Ct. 1684, 1689, 75 L.Ed.2d 708, 718

(1983)). It was necessary, therefore, to balance Stough's interest

in speaking out against Gallagher's concerns for promoting the

efficiency of the public services of the Sheriff's Office. In

Stough's favor the court pointed out that his speech took place

during off-duty hours, on a public platform to potential voters who

were seeking information with respect to Gallagher's qualifications

for office and at a time before Gallagher became the Sheriff. The

court also noted that Stough's campaigning never occurred on

official premises or at official functions and his speech was not

rude or insulting to Gallagher. In his defense, Gallagher

contended that Stough's views detrimentally impacted close working

relationships within the Sheriff's Office for which personal

loyalty and confidence were necessary. But, he presented no

evidence to support this assertion. To the contrary, the record

established that after Gallagher's election, Stough assured

Gallagher of his support and commitment to work harmoniously under

Gallagher's command. Gallagher had no complaint with Stough's

performance and agreed with evaluations which rated him highly and

recommended promotion. Furthermore, according to official policy

set by Gallagher, personal political loyalty to the sheriff was not

a prerequisite for officers holding the rank of captain. Balancing
these factors, this court concluded that a reasonable official in

Gallagher's place would have known that demoting Stough violated

clearly established First Amendment law. Id.

The precise nature of the time, place, manner and content of

the plaintiffs' political speech in the present case is not evident

from the record. For purposes of this appeal, we will presume

that, like Stough's, it encompassed matters of public concern

entitled to First Amendment protection. The similarity between the

two cases, however, begins and ends there.

It has long been clearly established, through Stough and

other cases that, generally speaking, government employees may not

be demoted or discharged because of their political speech or party

affiliation. See Rutan v. Republican Party, 497 U.S. 62, 110 S.Ct.

2729, 111 L.Ed.2d 52 (1990);7 Bryson, 888 F.2d at 1565. Neither

Stough, nor any other case we have found dictates, however, that a

plaintiff in a § 1983 lawsuit may not be transferred to a position

involving no loss of pay or rank, to alleviate the concerns of

supervisors named as defendants, who reasonably believe that their

ability to effectively direct and discipline a subordinate

plaintiff has been compromised because of the litigation. This is

particularly true in the law enforcement context, where concerns

for order, loyalty, morale and harmony are at a premium. See

Hansen, 19 F.3d at 577. Moreover, the record in this case supports

7
There are exceptions to this general rule in certain
compelling circumstances, where political loyalty is necessary
for the effective functioning of the enterprise. For example, a
governmental entity may condition the employment of high-level
officials on party affiliation when required to implement policy.
See Rutan, 497 U.S. at 74, 110 S.Ct. at 2737, 111 L.Ed.2d at 66.
the defendants' position that the lawsuit affected the efficient

operation of the Department. For example, after the action was

filed, Weekley observed Rogers and Aoun taking an overly long

break, but did not reprimand them for fear of being accused of

retaliatory harassment. This is not a case in which Pickering

balancing leads to the inevitable conclusion that transferring the

plaintiffs was unlawful. We consequently hold that the defendants

are entitled to qualified immunity from damages arising from the

transfers.8

That the defendants should have known that the remaining

conduct of which they are accused was impermissible under the First

Amendment is likewise unclear under preexisting law. To prevail on

a claim for damages, the plaintiffs must demonstrate that they

suffered "adverse employment action" because of their political

support of DeRise, McCabe v. Sharrett, 12 F.3d 1558, 1563 (11th

Cir.1994), and that the contours of such prohibited retaliation

were clearly established at the time, Lassiter v. Alabama A & M

Univ., 28 F.3d 1146, 1149 (11th Cir.1994). " "Adverse employment

action' is broadly defined and as a matter of law includes not only

discharges, but also demotions, refusals to hire, refusals to

promote, and reprimands." McCabe, 12 F.3d at 1563. The plaintiffs

point to no cases, however, in which warnings of the type involved

here or attempts to sway a government coworker's political views

have been held actionable under § 1983. To summarize, Weekley did

8
It is not clear from the pleadings whether the transfer
claims are asserted against all of the defendants, or only
Miller. To prevent any confusion, we hold that none of the
defendants may be held liable for the transfers in their
individual capacities.
nothing more than advise Aoun to avoid politics and tell Rogers

that he was suspected of on-duty campaigning. Jackson urged Shea

to reevaluate his support of DeRise and counseled the members of a

training class to keep a low political profile. Robinson may have

embarrassed Shea on a jail tour and prevailed upon him to back

Miller. Clark warned Brown to leave his name out of political

discussions because he was not a politician. Edwards placed

Rogers' name on a chronic absentee list, which temporarily

restricted Rogers' eligibility for transfers and promotions, after

Rogers missed almost fifty percent of his scheduled work days over

a two-month period of time.

We voice no opinion on whether, under these facts, the

plaintiffs might be able to establish a violation of their First

Amendment rights. We hold only that the defendants are immune from

damages because no caselaw existing at the time of these events

clearly established that such conduct, under the circumstances,

constituted "adverse employment action" prohibited under the First

Amendment. See Lassiter, 28 F.3d at 1151 (entitlement to qualified

immunity is separate and distinct from the merits of the case).9

Contrary to the district court's conclusion, the defendants

9
We are cognizant of Rogers' contention that his political
speech, rather than his chronic absences, caused him to be placed
on the absentee list. Based on our review of the record, we
seriously doubt his ability to carry the initial burden of
showing that his speech was a "substantial factor" in the
decision. See McCabe, 12 F.3d at 1565 n. 5. The substantive
merits of the claim do not concern us, however. It is sufficient
for purposes of the qualified immunity issue to recognize that a
reasonable superior officer in Edwards' position should not have
felt constrained by prior caselaw from taking this action. See
Lassiter, 28 F.3d at 1150 (public officials are not obligated to
be creative or imaginative in drawing analogies from settled
caselaw while performing their discretionary duties).
should not have been aware that their actions were unlawful based

on Stough. The alleged warnings and reprisals to which the

plaintiffs were subjected do not compare in severity to the

demotion suffered by Stough. Also, the speech which the defendants

in the present case allegedly sought to suppress concerned an

acting sheriff rather than a nonincumbent candidate, as in Stough.

Statements critical of the commanding officer of a paramilitary

group such as the office of a county sheriff, carry with them the

real potential for damaging cohesion and morale. See Busby v. City

of Orlando, 931 F.2d 764, 774 (11th Cir.1991) ("In quasi-military

organizations such as law enforcement agencies, comments concerning

co-workers' performance of their duties and superior officers'

integrity can "directly interfere[ ] with the confidentiality,

esprit de corps and efficient operation of the [police

department].' ") (alterations in the original) (citation omitted).

As with the transfers, Pickering balancing does not lead to the

inevitable conclusion that the defendants' actions were unlawful.

They are therefore entitled to qualified immunity from damages in

their individual capacities.

III. CONCLUSION

In accordance with the foregoing analysis, we REVERSE the

rejection of the defendants' motions for summary judgment based on

qualified immunity. The claims against Miller in his official

capacity and for injunctive relief remain pending. We therefore

REMAND the case to the district court for further proceedings

consistent with this opinion.