Opinion

Green v. Finkelstein

Court: District Court, S.D. Florida
Filed: Oct 11, 2021
Cited by: 0 cases
Authority: More cited than 20.1%

“Connick ‘requires us to look at the point of the speech in question: was it the employee’s point to bring wrongdoing to light? Or to raise other issues of public concern because they are of public concern? Or was the point to further some purely private interest?” (emphasis in original

How later courts described this case

“Connick ‘requires us to look at the point of the speech in question: was it the employee’s point to bring wrongdoing to light? Or to raise other issues of public concern because they are of public concern? Or was the point to further some purely private interest?” (emphasis in original
“[W]hether the speech at issue was communicated to the public or privately to an individual is relevant—but not dispositive.”
explaining it is not necessary “for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.”
“[W]e accept [the non-movant’s] version of the facts as true and draw all reasonable inferences in the light most favorable to him as the non- movant.”

Written by the judges who cited it.

The opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-cv-62160-BLOOM/Valle

RUBY GREEN,

Plaintiff,

HOWARD L. FINKELSTEIN, et al.,

Defendants.

______________________________/

OMNIBUS ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

THIS CAUSE is before the Court upon Plaintiff’s Motion for Partial Summary Judgment

as to Liability Against the Defendants, Howard Finkelstein, Individually, and in his Capacity as

Public Defender for Broward County, ECF No. [41] (Plaintiff’s Motion”), and Defendants’ Motion

for Final Summary Judgment or in the Alternative, Motion for Partial Summary Judgment, ECF

No. [44] (“Defendants’ Motion”) (collectively, “Motions”). The Court has carefully reviewed the

Motions, all opposing and supporting submissions, the record in this case, the applicable law, and

is otherwise fully advised. For the reasons set forth below, Plaintiff’s Motion is denied, and

Defendants’ Motion is granted.

I. BACKGROUND

On October 23, 2020, Plaintiff Ruby Green (“Plaintiff”) initiated this action against

Defendants1 alleging claims of First Amendment retaliation under 42 U.S.C. § 1983. See ECF No.

[1]. According to the Complaint, Plaintiff was previously employed as an assistant public defender

for Broward County. Id. ¶¶ 2, 5. During her employment with the Public Defender’s Office for

1 Howard Finkelstein, in both his individual and official capacities, and the Office of the Public Defender

for Broward County are collectively referred to as “Defendants”.

Broward County (the “Public Defender’s Office” or “Office”), Plaintiff campaigned for public

office to replace the retiring Public Defender, Defendant Finkelstein. Id. ¶¶ 2, 6. Plaintiff contends

that during her employment and while campaigning for office, she was actively engaged in

speaking about “social justice issues.” Id. ¶ 7. Specifically, Plaintiff publicly advanced her position

on the “equitable treatment of African American participants in the criminal justice system” by

engaging the community at large and participating in podcasts. Id. ¶¶ 7, 10, 16. The morning after

her unsuccessful election, Plaintiff received an e-mail and text message notifying Plaintiff of her

termination. Id. ¶ 8. That same morning, Defendant Finkelstein participated in an interview with

the South Florida Sun Sentinel, during which Defendant Finkelstein “admitted” to the reporter that

he personally made the decision to terminate Plaintiff, and that his decision was based on the

statements Plaintiff made during her campaign for public office. Id. Accordingly, the Complaint

asserts two counts for relief: (1) First Amendment Retaliation against Defendant Finkelstein in his

individual capacity; and (2) First Amendment Retaliation against Defendant Finkelstein in his

official capacity as Public Defender, and the Office of the Public Defender.

Regarding the instant Motions, Plaintiff filed her Motion, ECF No. [41], along with her

corresponding Statement of Undisputed Material Facts, ECF No. [41-7] (“Plaintiff’s SMF”).

Defendants filed their Response in Opposition to Plaintiff’s Motion, ECF No. [55] (Defendants’

MSJ Response”), and Response to Plaintiff’s SMF, ECF No. [54] (“Defendants’ SMF Response”).

Plaintiff also filed a Reply, ECF No. [58] (“Plaintiff’s MSJ Reply”).

Defendants filed their Motion, ECF No. [44], along with their corresponding Statement of

Undisputed Facts, ECF No. [42] (“Defendants’ SMF”). Plaintiff filed her Response/Objection to

Defendants’ Motion, ECF No. [53] (“Plaintiff’s MSJ Response”), together with her Statement of

Disputed Facts Responsive to Defendants’ SMF, ECF No. [53-1] (“Plaintiff’s SMF Response”).

Finally, Defendant filed a Reply in Support of their Motion, ECF No. [65] (“Defendants’ MSJ

Reply”). Both Motions, accordingly, are ripe for consideration.

II. MATERIAL FACTS

Based on the parties’ statements of material facts in support of and in opposition to the

Motions, along with the evidence in the record, the following facts are not genuinely in dispute

unless otherwise noted.2

A. The Public Defender’s Office

Defendant Finkelstein served as the elected Public Defender for Broward County from

2005 until his retirement in January 2021. ECF No. [43-1] at 1, ¶ 2. As the elected Public Defender,

Defendant Finkelstein was charged with the duty of representing any person “without additional

compensation, any person determined to be indigent under § 27.52[.]” Fla. Stat. § 27.51(1); see

also ECF No. [43-1] at 1, ¶ 3. During Defendant Finkelstein’s Administration, the Public

Defender’s Office maintained a Policy Manual (“Manual”), which was made available to all

2 On August 6, 2021, Plaintiff filed a motion seeking leave to file an amended response to Defendants’

SMF, ECF No. [62] (“Motion for Leave”). Plaintiff explains that, after timely filing her SMF Response,

she reviewed the Local Rules again and “determined that a separate filing of the Statement of Facts is/was

required.” Id. at 1. Plaintiff further states that the Amended SMF Response is longer because she edited the

submission “to specifically delineate the paragraphs responsive to the Defendants’ Statement of Undisputed

Facts which were admitted” and, apart from that change, “the Amended Statement is largely the same” as

her SMF Response. Id. at 1-2. Defendants oppose the Motion for Leave, ECF No. [64], arguing that the

Court already struck Plaintiff’s untimely Amended SMF Response, and “Plaintiff’s amendment was not to

correct a scrivener’s error,” and instead “seeks to dispute Defendants’ statements contained in paragraphs

19[-25], 28, 31, 33[-34], and 38.” Id. at 3-5; see also ECF No. [61]. Upon review of the parties’ submissions

and the record in this case, the Court does not find good cause to grant the relief sought. First, the Court’s

Scheduling Order, ECF No. [16], cautioned the parties that “strict compliance with Local Rule 56.1 is

mandated” and explicitly set forth the procedures for filing any statements of material fact. Id. at 3-5. The

Court reminds Counsel for Plaintiff that compliance with the Court’s Orders and the Local Rules is not an

option but a requirement. Thus, Counsel’s resulting failure to read or familiarize himself with the Court’s

Scheduling Order and Local Rules does not justify amendment. Additionally, contrary to Plaintiff’s

representation, the Amended SMF Response includes substantive amendments to Plaintiff’s SMF

Response. Compare ECF No. [53-1], with ECF No. [56]. Under these circumstances, the Court will not

permit amendment. Nonetheless, the Court will set forth the facts insofar as they are supported by evidence

in the record.

employees immediately upon being hired by the Public Defender’s Office. ECF No. [43-1] at 2,

¶ 5; see also id. at 8-38. According to the Manual, the mission of the Public Defender’s Office is

“to provide zealous and effective representation to persons who cannot afford to hire a lawyer.”

Id. at 11-12.

The Manual also sets forth several policies regarding the Office’s expectations of its

employees. Specifically, the Manual provides that “[t]he Public Defender expects each member of

this office to be professional, diligent and ethical” and that such “standards are necessary to fulfill

our constitutional and statutory duties to protect the rights of indigent person charged with

violating the law or facing involuntary civil commitment.” Id. at 11. Employees are also “expected

to be courteous, friendly and helpful in dealing with clients, their families, the public and fellow

employees.” Id. at 14. To the extent an employee observes another employee being “rude or

disrespectful,” the Manual further encourages the observing employee “to address the issue

privately with the offending party and if unable to do so or if the behavior continues then to” report

the issue “immediately to the employee’s supervisor or to the Public Defender.” Id.

Regarding communications with the media, employees are cautioned that “the Public

Defender and he alone, is answerable to the general public regarding the orderly administration of

the office and matters relating to office policy. Any inquiry relating to the administration of the

office, matters relating to office policy or general law matters should be referred to the Public

Defender.” Id. at 26. Lastly, the Manual instructs that the Public Defender’s Office “is committed

to the highest standards of moral and ethical behavior” and “[b]reaches of these standards,

especially through acts involving fraudulent, unethical, and other dishonest behavior, are not only

costly but they erode the public trust and confidence in the integrity of the agency.” Id. at 18.

To carry out its mission, the Office maintained a hierarchy of management, whereby three

Executive Chiefs assisted Defendant Finkelstein in overseeing the efficient operation of the Office,

and nine Assistant Chiefs oversaw all Assistant Public Defenders employed by the Office. Id. at

1, ¶ 4; see also id. at 7. Notwithstanding the hierarchy of management, each person employed by

the Office ultimately “serve[d] at the discretion of the Public Defender[,]” who could “terminate

an employee with or without cause.” Id. at 22.

B. The November 2020 Election

During his fourth term as Public Defender, Defendant Finkelstein announced that he was

retiring and would not be running for reelection in the November 2020 primary. ECF No. [41-4]

at 34:17-36:8. In November 2018, Plaintiff announced her candidacy for Public Defender. ECF

No. [43-2] at 64:21-24. Plaintiff began her employment with the Office as an Assistant Public

Defender on March 5, 2012. ECF No. [43-2] at 13:19-24; see also ECF No. [43-3] at 15-16, ¶ 1.

During her employment, Plaintiff received both annual promotions and pay increases. ECF No.

[43-3] at 19, ¶ 18. Defendant Finkelstein believed Plaintiff did a “good job” as Assistant Public

Defender, but he did not find her qualified to serve as the Public Defender. ECF No. [41-4] at

32:24-33:6, 42:25-43:23.

Before Plaintiff had declared her candidacy, Gordon Weekes (“Weekes”), who served as

one of three Executive Chiefs, entered the race and received Defendant Finkelstein’s endorsement.

ECF No. [43-2] at 64:7-10; see also ECF No. [41-4] at 36:10-37:4, 44:2-5. Plaintiff and Weekes,

both of whom are persons of color, represented two of the three candidates running to replace

Defendant Finkelstein in the November 2020 election. ECF No. [43-2] at 100:24-101:7.

On November 27, 2018, Defendant Finkelstein sent an office-wide email outlining his

policy regarding current employees campaigning for public office. ECF No. [43-1] at 40. The

email states, in pertinent part:

When I took office, I felt very strongly that the Law Office of the Public Defender

should not be a political machine and the employees should not feel compelled to

participate in politics, other than exercising their constitutional right to vote. I

allowed several employees to continue working while running for judge. Most

elected officials require employees to resign before running for office. My only

requirements have always been to follow campaign laws, submit vacation requests

for any campaigning during working hours, and refrain from using office computers

or supplies for any campaign purpose. My goal was to allow people to run for office

without violating any law or losing sight of our important job- to serve our clients.

Id. Defendant Finkelstein also sent an individual email to Plaintiff and Weekes, reiterating his

campaign policy, and explaining that their campaigns “have the potential of pulling the office apart

and distracting our employees from our very important mission.” Id. at 41. Defendant Finkelstein

further stated that he “worked too hard to de-politicize this office to allow it to devolve into chaos

before [he] retires” and that he trusts that both Plaintiff and Weekes “will conduct [themselves]

professionally. Id. at 41.

Both Plaintiff and Weekes were permitted to continue their employment with the Office

during their respective campaigns for Public Defender. ECF No. [43-2] at 64:21-65:20; see also

ECF No. [43-1] at 40-41. Defendant Finkelstein never told Plaintiff that she could not run for

Public Defender, ECF No. [43-2] at 76:4-14, 83:10-18, or that she had to support Weekes’

campaign, id. at 78:17-79:18. Plaintiff, however, contends that Defendant Finkelstein did not want

her to run for Public Defender because of his public endorsement, support, and contribution to

Weekes’ campaign. Id. at 76:15-77:9. Plaintiff also explains that she was implicitly told to support

Weekes’ campaign because she received office-wide emails to attend meetings and to perform

tasks associated with her opponent’s campaign. Id. at 79:17-82:12.

C. The Adams Brothers Podcast

On August 8, 2020, Plaintiff appeared as a guest on the Adams Brothers Podcast (the

“Podcast”). Id. at 92:23-93:2; see also ECF No. [41-1]. Once made aware of the Podcast,

Defendant Finkelstein sent Executive Chief Renee Dadowski (“Dadowski”) a link to the Podcast

for her review and commentary. ECF No. [41-4] at 52:4-54:5. Defendant Finkelstein also watched

the Podcast and determined that Plaintiff made a series of statements that were “untruthful,

personally and professionally offensive, and which had the ability to undermine and inhibit the

Office relations and ability of the Office to accomplish its Mission.” ECF No. [43-1] at 4-5, ¶¶ 19,

23; see also ECF No. [41-4] at 54:22-66:17, 70:8-76:5, 93:19-95:24. Specifically, Defendant

Finkelstein took issue with the following statements:

• “I was told as a supervisor -- as a supervisor and as a chief, not to go to the

courtroom, not to train our attorneys.” ECF No. [41-1] at 6:23-25.

• “Why would you as an administration not want to hire people who look, you know,

like the people that are filling the boxes?” Id. at 7:14-18.

• “He maybe comes to work maybe once or twice a week for maybe an hour or two,

doesn’t know people’s names, you know, stuff like that.” Id. at 9:22-25.

• “But I’m telling you, if you’re treated like trash in your own office, you know,

you’re -- you’re wanting someone to fight for you.” Id. at 12:3-5.

• “That’s why I’m saying, like, if you have -- if you see that the community is having

issues and, you know, especially with the representation of our clients and how

we’re being treated, black people are being arrested, disproportionately, you see

that, you know that, and you’ve advocated for that, so you say, and then you go out

on a limb and just tell the entire office that we can’t march in solidarity with Black

Lives Matter, when every single other office in the Brow- -- in state -- Florida, state

of Florida, was marching in solidarity with Black Lives Matter? That’s a concern.

That is a big concern.” Id. at 15:4-16

• “You tell me, if we were drug addicts and we used to come to court with cocaine

on their noses, you know, would we be able to be in a position that he would be

able to be in? No. There’s completely different sentiments about, you know, how

he chose to, you know, do his time as a public defender.” Id. at 18:17-23.

• “He hasn’t had any cases. Hasn’t had any – had nothing. Like no jail visits. I don’t

even think any jail calls, anything like that. It’s just you just get to go home and

play golf, and, you know, that is your day. And, you know, we don’t need that. It’s

time – it’s not time to be complacent. You know, it’s – it’s really not. And that’s

what we have had for quite a long time. Quit a long time. Complacency. MR.

WAYNE ADAMS: Well, that tells you white privilege is alive and well in Broward

County, Florida. MS. GREEN: Uh-huh. Yep.” Id. at 19:13-20:2.

• “I, you know, asked him to, you know, donate or come to an event that was, you

know, of blackness, and he basically said that he wouldn’t because he felt that -- or

he was mad that some of the people in that organization called him racist of -- you

know, for certain things, you know, back in the -- you know, back in the day.” Id.

at 41:10-16.

Id. ¶ 23 (emphasis in original) (collectively, “Defendants’ Designated Statements”).

Plaintiff does not dispute speaking on the above-referenced topics, but takes the position

that she could not campaign for Public Defender and advance the need for change without

informing the public of what was happening in the criminal justice system under Defendant

Finkelstein’s Administration. ECF No. [43-2] at 172:175:9, 180:17-182:12. Plaintiff also directs

the Court to a “sampling” of other statements made during the Podcast which address: (1) equal

protection in the criminal justice system for the minority community; (2) maintaining office morale

of public defenders; (3) securing proper job training for public defenders; (4) securing funding for

the Office; and (5) effectuating access to mental health and housing resources to the Office’s

clients. See ECF No. [41] at 5-7. The specific statements are as follows:

• We need change at the Broward County Public Defender’s Office, because a black

face in a high place doesn’t always want to advance the race. And I saw that at the

Broward County Public Defender’s Office. ECF No. [41-1] at 6:18-22.

• Why would you, as an administration, when George Floyd happened, why would

you tell the office not to march in solidarity with Black Lives Matters? Why would

you as an administration not want to hire people who look, you know, like the

people that are filling the boxes? Id. at 7:11-16.

• MR. DARREL ADAMS: What are the three biggest challenges facing the Public

Defender’s Office? MS. GREEN: One is funding; two is keeping our experienced

attorneys; and three is the morale. Id. at 8:9-14.

• It needs to stop. Like, we need a change. And, you know, it’s just a trickle effect.

We have attorneys at the office who, you know, once we get our experienced

attorneys that are out, then we have to move people up that may have been, you

know, in felony for a short time. And some of the attorneys don’t even feel

comfortable with representing their clients. You tell me, if you get an attorney that

has never tried a felony case -- and we have some attorneys, that are lead attorneys,

lead felony attorneys, that need to try felony cases, and they’ve never tried their

own felony cases. So if you are arrested for a crime that you could be facing life in

prison for, and you have an attorney that has never tried a felony case before, are

you going to feel comfortable with them representing you? Id. at 10:16-11:8.

• That’s why I’m saying, like, if you have -- if you see that the community is having

issues and, you know, especially with the representation of our clients and how

we’re being treated, black people are being arrested, disproportionately, you see

that, you know that, and you’ve advocated for that, so you say, and then you go out

on a limb and just tell the entire office that we can’t march in solidarity with Black

Lives Matter, when every single other office in the Brow -- in state -- Florida, State

of Florida, was marching in solidarity with Black Lives Matter? That’s a concern.

That is a big concern. Id. at 15:4-16.

• MR. DARREL ADAMS: --the Public Defender, how would you address the

problem of racial disparities in the criminal justice system? MS. GREEN: This --

that’s -- that’s one thing that we need to do. We need to make sure that we’re

tracking them. You know, racial disparity is apparent, and it has been that way for

many, many, years. We already know that the criminal justice system was a

mechanism that was relegated -- you know, that has relegated millions of people

of color into a second-class citizenship. You know, we’re basically second-class

citizens. And it has, you know, basically taken away rights of our clients, you

know, voting rights, housing, jobs. And so they’re stuck in this revolving door.

And that has been an issue. Id. at 21:6-22.

• So we need to make sure that we’re providing our clients with more access to

mental health treatment as well. Id. at 27:1-3.

• And I totally understand what the criminal justice system needs when it comes to

Broward County Public Defender’s Office. We need a holistic approach. And that

goes to making sure that our clients, as I stated before, has access to more treatment

-- mental health programs and beds, more substance abuse treatment programs and

beds, you know. Because a lot of people don’t understand that sometimes our --

our clients need inpatient treatment programs. There’s not a lot of beds, you know,

for our clients. We need to, you know, bridge that gap and build connections with

resources that have the ability to treat our clients without trying to charge them

astronomical fees. We need -- we need to link our resources with housing. You

know, some of our clients get out, and we have situations like, you know, you’re

in jail for a few days, and then all of a sudden you done lost your housing. You

know, it’s -- it’s crazy. Id. at 42:16-43:10.

(“Plaintiff’s Designated Statements”).

D. Plaintiff’s Termination

On August 10, 2020 at 7:23 a.m., Defendant Finkelstein sent an email to Dadowski and

Weekes, titled “ruby” which stated: “I am firing her today[.]” ECF No. [41-5] at 2. After receiving

no response, Defendant Finkelstein replied to his email stating:

Unless I hear something from you guys I plan to terminate her today. She attacked

me professionally and personally, the office and fellow pds. This language has the

ability to inhibit the ability to do our jobs. She lied and said we wouldn’t allow

people in the office to be involved with marching for blm.

Id. (errors in original). Subsequently, on August 15, 2020, Defendant Finkelstein sent another

email to Dadowski and Weekes outlining his plan to terminate Plaintiff:

I am thinking we send email and text to ruby cell at exactly 7pM and then

immediately shut off her office email and access card. Here is text and email I

propose:

Thank you for your service. Your services are no longer requested. Your

termination is immediate. Please call Chief Investigator mark Forman who will

facilitate the return of any Personal possessions in your office and receive from you

your access card. Laptop etc.

We should probably notify chiefs After it’s done. We can send them the link of the

radio show but my guess is they have already heard it. Her disrespect for me

personally and for the office and its lawyers prevents her from being part of our

office. It Inhibits us in Our ability to do our job. It brings disrepute down on us and

our clients. Her lack of truthfulness should prevent her from being a lawyer As well

but that is another issue for others[.]

ECF No. [41-6] at 2 (errors in original).

On August 19, 2020, the morning after Plaintiff’s unsuccessful election, Plaintiff received

a text message from Defendant Finkelstein notifying Plaintiff of her termination. ECF No. [41-3]

at 2. That same day, Defendant Finkelstein participated in an interview with Rafael Olmeda of the

South Florida Sun Sentinel, during which Finkelstein discussed his decision to terminate Plaintiff

based on her “unprofessional” and “[un]truthful” statements made during the Podcast. ECF No.

[41-4] at 83:4-25.

During her deposition, Plaintiff testified that she did not know which specific statements

led to her termination, ECF No. [43-2] 97:15-98:23, 103:17-104-7, 114:11-115:11, 128:12-129:20,

132:1-25, 156:16-157:2, and explained that she rests her First Amendment retaliation claim on the

“main” topics discussed during the Podcast, id. at 96:17-97:8; see also ECF No. [43-3] at 18, ¶ 14.

Plaintiff also testified that she did not watch or read the transcript of the Podcast. ECF No. [43-2]

at 89:23-90:8.

III. LEGAL STANDARD

The standard of review on cross-motions for summary judgment does not differ from the

standard applied when only one party files such a motion. See Am. Bankers Ins. Grp. v. United

States, 408 F.3d 1328, 1331 (11th Cir. 2005). A court may grant a motion for summary judgment

“if the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The parties may support their

positions by citations to materials in the record, including, among other things, depositions,

documents, affidavits, or declarations. See Fed. R. Civ. P. 56(c). An issue is genuine if “a

reasonable trier of fact could return judgment for the non-moving party.” Miccosukee Tribe of

Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is material if it “might affect the outcome of the

suit under the governing law.” Id. (quoting Anderson, 477 U.S. at 247-48).

A court views the facts in the light most favorable to the non-moving party, draws “all

reasonable inferences in favor of the nonmovant and may not weigh evidence or make credibility

determinations, which ‘are jury functions, not those of a judge.’” Lewis v. City of Union City, Ga.,

934 F.3d 1169, 1179 (11th Cir. 2019) (quoting Feliciano v. City of Miami Beach, 707 F.3d 1244,

1252 (11th Cir. 2013)); Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006); see also Crocker

v. Beatty, 886 F.3d 1132, 1134 (11th Cir. 2018) (“[W]e accept [the non-movant’s] version of the

facts as true and draw all reasonable inferences in the light most favorable to him as the non-

movant.”). “The mere existence of a scintilla of evidence in support of the [non-moving party’s]

position will be insufficient; there must be evidence on which a jury could reasonably find for the

[non-moving party].” Anderson, 477 U.S. at 252. “If more than one inference could be construed

from the facts by a reasonable fact finder, and that inference introduces a genuine issue of material

fact, then the district court should not grant summary judgment.” Bannum, Inc. v. City of Fort

Lauderdale, 901 F.2d 989, 996 (11th Cir. 1990). The Court does not weigh conflicting evidence.

See Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1140 (11th Cir. 2007) (quoting Carlin Comm’n,

Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352, 1356 (11th Cir. 1986)).

Initially, the moving party bears the “responsibility of informing the . . . court of the basis

for its motion, and identifying those portions of ‘the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes

demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986); see also Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). If a movant

satisfies this burden, “the nonmoving party ‘must do more than simply show that there is some

metaphysical doubt as to the material facts.’” Ray v. Equifax Info. Servs., LLC, 327 F. App’x 819,

825 (11th Cir. 2009) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986)). Instead, “the non-moving party ‘must make a sufficient showing on each essential

element of the case for which he has the burden of proof.’” Id. (quoting Celotex Corp., 477 U.S.

at 322). The non-moving party must produce evidence, going beyond the pleadings, and by its own

affidavits, or by depositions, answers to interrogatories, and admissions on file, designating

specific facts to suggest that a reasonable jury could find in the non-moving party’s favor. See

Shiver, 549 F.3d at 1343. Yet, even where a non-movant neglects to submit any alleged material

facts in dispute, a court must still be satisfied that the evidence in the record supports the

uncontroverted material facts proposed by the movant before granting summary judgment. Reese

v. Herbert, 527 F.3d 1253, 1268-69, 1272 (11th Cir. 2008); United States v. One Piece of Real

Prop. Located at 5800 S.W. 74th Ave., Miami, Fla., 363 F.3d 1099, 1103 n.6 (11th Cir. 2004)

(“One Piece of Real Prop.”). Indeed, even “where the parties agree on the basic facts, but disagree

about the factual inferences that should be drawn from those facts,” summary judgment may be

inappropriate. Warrior Tombigbee Transp. Co., Inc. v. M/V Nan Fung, 695 F.2d 1294, 1296 (11th

Cir. 1983).

Additionally, “cross motions for summary judgment may be probative of the nonexistence

of a factual dispute, but this procedural posture does not automatically empower the court to

dispense with the determination whether questions of material fact exist.” Ga. State Conf. of

NAACP v. Fayette Cnty. Bd. of Comm’rs, 775 F.3d 1336, 1345-46 (11th Cir. 2015). Indeed, even

where the issues presented on motions for summary judgment overlap, a court must consider each

motion on its own merits, “resolving all reasonable inferences against the party whose motion is

under consideration.” S. Pilot Ins. Co. v. CECS, Inc., 52 F. Supp. 3d 1240, 1243 (N.D. Ga. 2014)

(citing Am. Bankers Ins. Grp., 408 F.3d at 1331). In particular, where “the parties respond[] to

each respective summary judgment motion with disputes as to the ‘undisputed’ facts, add[]

‘material facts’ of their own, and then repl[y] with subsequent objections to the other party’s

additional facts,” the mere filing of cross motions for summary judgment is not conclusive. Id.

Thus, where the parties disagree as to the facts, summary judgment cannot be entered unless one

of the parties meets its burden of demonstrating that “there is no dispute as to any material facts

with the evidence and all inferences drawn therefrom viewed in the light most favorable” to the

non-moving party. Shook v. United States, 713 F.2d 662, 665 (11th Cir. 1983) (citing M/V Nan

Fung, 695 F.2d at 1296-97).

IV. DISCUSSION

As the instant action concerns a claim for First Amendment retaliation, the Court first sets

forth the relevant framework for addressing this claim. The Court will then turn to the respective

Motions.

A. First Amendment Retaliation

“A government employer may not demote or discharge a public employee in retaliation for

speech protected by the First Amendment.” Alves v. Bd. of Regents of the Univ. Sys. of Ga., 804

F.3d 1149, 1159 (11th Cir. 2015) (citing Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th

Cir. 1989)). While it is true that a citizen who enters public service “must accept certain limitations

on his or her freedom[,] . . . [t]he First Amendment limits the ability of a public employer to

leverage the employment relationship to restrict, incidentally or intentionally, the liberties

employees enjoy in their capacities as private citizens.” Garcetti v. Ceballos, 547 U.S. 410, 418-

19 (2006) (citing Waters v. Churchill, 511 U.S. 661, 671 (1994); Perry v. Sindermann, 408 U.S.

593, 597 (1972)); see also Lane v. Franks, 573 U.S. 228, 236 (2014) (“public employees do not

renounce their citizenship when they accept employment, and [the Supreme Court] has cautioned

time and again that public employers may not condition employment on the relinquishment of

constitutional rights” (citations omitted)). Thus, in the First Amendment context, courts must

“arrive at a balance between 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 employees.” Pickering v. Bd. of Educ. of Twp. High

Sch. Dist., 391 U.S. 563, 568 (1968).

The Court of Appeals for the Eleventh Circuit has set forth a four-part inquiry to determine

whether an employer’s actions constitute retaliation for protected speech in violation of the First

Amendment: (1) whether the employee’s speech involves a matter of public concern; (2) whether

the employee’s interest in commenting upon matters of public concern outweighs the employer’s

legitimate interest in promoting the efficiency of public service it performs through its employees;

(3) whether the employee’s speech played a substantial or motivating factor in the employer’s

decision to demote or discharge the employee; and (4) whether the employer would have taken the

same action against the employee even in the absence of the protected speech. See Bryson, 888

F.2d at 1565-66 (citations omitted) (“Bryson test”).

“The first two factors are questions of law designed to determine whether the First

Amendment protects the employee’s speech.” Anderson v. Burke Cnty., Ga., 239 F.3d 1216, 1219

(11th Cir. 2001) (citations omitted); see also Morales v. Stierheim, 848 F.2d 1145, 1148 (11th Cir.

1988) (citations omitted). “The second two factors are questions of fact designed to determine

whether the alleged adverse employment action was in retaliation for the protected speech.”

Anderson, 239 F.3d at 1219-20 (citations omitted). “If an employee satisfies her burden on the first

three steps, the burden then shifts to the employer to show by a preponderance of the evidence that

it would have made the same decision even in the absence of the protected speech.” Cook v.

Gwinnett Cnty. Sch. Dist., 414 F.3d 1313, 1318 (11th Cir. 2005) (citing Bryson, 888 F.2d at 1565-

66).

B. Plaintiff’s Motion

Plaintiff moves for partial summary judgment on the issue of liability for her retaliatory

discharge claim because, according to Plaintiff, she has demonstrated the absence of any genuine

issues of material fact that she was terminated for engaging in constitutionally protected speech.

See generally ECF No. [41]. In particular, Plaintiff argues that her statements made during the

Podcast are constitutionally protected because they were given in the context of a campaign-related

event and addressed matters of public concern, including: (1) “equal protection in the criminal

justice system for the minority community,” (2) “maintaining office morale of public defenders,”

(3) “securing proper job training for public defenders,” (4) “securing funding for the public

defender’s office,” and (5) “effectuating access to mental health and housing resources to clients

of the public defender’s office.” See ECF No. [41] at 6-7 (citing ECF No. [41-1] at 6:18-22, 8:8-

14, 7:11-16, 10:16-11:8, 15:4-16, 21:6-22, 27:1-3, 42:16-43:10); Plaintiff’s Designated

Statements, supra. Plaintiff further explains that there is no dispute of fact that she suffered an

adverse employment action by virtue of her termination or that she was terminated for statements

made during the Podcast. ECF No. [41] at 8-10.

Defendants respond that the Motion fails primarily because Plaintiff: (1) relies on

inapplicable case law in an attempt to establish that any statements made during a campaign for

public office are afforded “impervious constitutional protection[;]” (2) fails to carry her burden of

demonstrating that she engaged in speech that is constitutionally protected; and (3) ignores the

undisputed facts as to the statements which actually led to her termination, and therefore cannot

demonstrate a causal connection between her Designated Statements and Defendants’ employment

decision. See generally ECF No. [55].

Upon review of the record, the Court determines that Plaintiff is not entitled to judgment

as a matter of law. As Defendants correctly argue, there are several procedural and substantive

defects with Plaintiff’s Motion, which demonstrate that Plaintiff has failed to meet her burden at

this stage of the proceedings.

i. Constitutionally Protected Speech

To prevail on a claim for First Amendment retaliation, Plaintiff must first demonstrate that

her speech is constitutionally protected. See Bryson, 888 F.2d at 1565-66; see also Morales, 848

F.2d at 1148. There are two inquiries that guide the interpretation of constitutional protections

accorded to public employees. First, the public employee’s speech must be “fairly characterized

as constituting speech on a matter of public concern.” Bryson, 888 F.2d at 1565 (citations omitted).

“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 v.

Meyers, 461 U.S. 138, 147-48 (1983) (“Connick framework”). “In evaluating whether speech may

be fairly characterized as speech on a matter of public concern, ‘it is relevant to examine whether

the public interest is asserted on the basis of a vague and general assumption that the public would

be interested, versus an articulable, specific public interest.’” Natale v. Broward Cnty., 987 F.

Supp. 926, 933-34 (S.D. Fla. 1997) (quoting Peterson v. Atlanta Hous. Auth., 998 F.2d 904, 916

(11th Cir. 1993)).

If the public employee did not speak as a citizen on a matter of public concern, “the

employee has no First Amendment cause of action based on his or her employer’s reaction to the

speech.” Garcetti, 547 U.S. at 418 (citing Connick, 461 U.S. at 147). However, “[i]f the answer is

yes, then the possibility of a First Amendment claim arises. The [next] question becomes whether

the relevant government entity had an adequate justification for treating the employee differently

from any other member of the general public.” Id. (citing Pickering, 391 U.S. at 568) (“Pickering

balance”); see also Maggio v. Sipple, 211 F.3d 1346, 1351-52 (11th Cir. 2000) (“[T]o establish a

constitutional violation, [a public employee’s] speech must satisfy both elements of the Pickering-

Connick test.”). The Pickering balancing test “reflects the importance of the relationship between

the speaker’s expressions and employment. A government entity has broader discretion to restrict

speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech

that has some potential to affect the entity’s operations.” Garcetti, 547 U.S. at 418.

Plaintiff has designated eight statements which she believed formed the basis of her

termination. ECF No. [41] at 5-7; see Plaintiff’s Designated Statements, supra. Yet, Plaintiff has

remarkably failed to analyze any of her statements under the framework set forth in Connick to

determine the threshold inquiry of whether they implicate matters of public concern and warrant

constitutional protection. See ECF No. [41] at 4-8; see also Connick, 461 U.S. 138 at 147-48;

Boyce, 510 F.3d at 1343. Plaintiff instead suggests that she is automatically afforded constitutional

protections for her Designated Statements because they were made within the context of her

campaign event for public office. See, e.g., ECF No. [41] at 5 (“[T]he incontrovertible fact that the

speech at issue occurred within the context of a political campaign event—taken alone—gives rise

to the presumption that said speech was constitutionally protected.”). While it is certainly true that

political speech lies “at the core of the First Amendment[,]” the Court is unaware of, and Plaintiff

has failed to cite to, any authority to support Plaintiff’s position that any and all statements

advanced during a campaign for public office are afforded constitutional protection. See Carter v.

City of Melbourne, Fla., 731 F.3d 1161, 1169 (11th Cir. 2013) (citation omitted) (internal

quotation marks omitted) (analyzing the “public concern” framework set forth in Connick to an

employee’s political speech).

In support of Plaintiff’s position that her speech “triggers First Amendment protection[,]”

ECF No. [41] at 4, Plaintiff relies on a body of case law that is materially distinguishable and has

no application to the instant case.3 For example, in Randall, 610 F.3d at 710, the Eleventh Circuit

3 See ECF No. [41] at 4 (citing Randall v. Scott, 610 F.3d 701 (11th Cir. 2010); Terry v. Cook, 866 F.2d

373 (11th Cir. 1989); Epps v. Watson, 492 F.3d 1240 (11th Cir. 2007) (order of authority in original)).

addressed the degree of First Amendment protection for candidacy. The Eleventh Circuit

explained that “[p]recedent in the area of constitutional protection for candidacy can be described

as a legal morass[,]” but ultimately determined that the “decision to run for office enjoys some

First Amendment protection.” Id. 710, 715 (emphasis in original). Additionally, in Terry, 866 F.2d

at 376-377, the Eleventh Circuit addressed the First Amendment rights of employees discharged

due to their political patronage and stressed the importance of recognizing “the distinction

between actions that assert employees’ right of expression and actions that challenge discharge

based on political patronage.” Id.; see also Epps, 492 F.3d (political patronage). Critically, the

issue before this Court is whether Defendants’ decision to terminate Plaintiff following her

participation in the Podcast violated her First Amendment right to free speech. As such, this is the

quintessential employee speech case where the threshold public concern framework set forth in

Connick controls. At no point has Plaintiff alleged that she was terminated for her political

patronage, candidate support, or restrictions on candidacy and therefore Plaintiff’s reliance on

Randall, Terry, and Epps, is misplaced. Moreover, even if Plaintiff did, neither of the cited cases

would afford Plaintiff absolute protection for her speech. Instead, it would trigger a different

constitutional analysis.

Typically, when a party fails to cite legal authority in support of its position, that “suggests

either that there is no authority to sustain its position or that it expects the court to do its research.”

Goldberg for Jay Peak, Inc. v. Raymond James Fin., Inc., No. 16-21831-CIV, 2017 WL 7791564,

at *7 (S.D. Fla. Mar. 27, 2017) (Rapid Transit Lines, Inc. v. Wichita Developers, Inc., 435 F.2d

850, 852 (10th Cir. 1970)). The Court, however, declines the invitation to do Plaintiff’s research,

as there is certainly “no burden upon the district court to distill every potential argument that could

be made based upon the materials before it[.]” Resolution Tr. Corp. v. Dunmar Corp., 43 F.3d 587,

599 (11th Cir. 1995).

Based on the foregoing, Plaintiff has failed to satisfy her burden of demonstrating that her

Designated Statements warrant constitutional protection. Nonetheless, in order to fully address

Plaintiff’s Motion, the Court assumes that Plaintiff’s Designated Statements are constitutionally

protected.

ii. “Substantial” or “Motivating” Factor

To succeed on a First Amendment retaliation claim, Plaintiff must also demonstrate “that

[her] speech was a ‘substantial’ or ‘motivating’ factor in the allegedly retaliatory decision.” Gattis

v. Brice, 136 F.3d 724, 726 (11th Cir. 1998) (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274, 287 (1977)). At the summary judgment stage, Plaintiff must “make a showing

sufficient to permit a reasonable jury to find that [her] protected speech was a substantial or

motivating factor behind [her] [termination].” Gattis, 136 F.3d at 726.4

In her Motion, Plaintiff maintains that “there is absolutely no dispute of fact whatsoever”

that Defendant Finkelstein terminated Plaintiff for statements given during the Podcast. ECF No.

[41] at 9. In support of her position, Plaintiff relies on the following excerpt from Defendant

Finkelstein’s deposition, in which he explains that after watching the Podcast he had “already

decided what [he] was going to do. She was going to be terminated because the way and what she

said about [him] as a person was outrageous, wrong, it was untruthful, and [he] was really hurt.

[He] was really hurt professionally.” Id. (citing ECF No. [41-4] at 65:4-16); see also ECF No. [41-

4 The Court emphasizes that “[a]t the summary judgment stage, the district court [is] not required to accept

as true the allegations in [Plaintiff’s] complaint regarding the reason why [s]he was terminated.” Cox v.

Clayton Cnty. Sch. Dist., 763 F. App’x 817, 819 (11th Cir. 2019). Thus, while Plaintiff has alleged that she

was terminated for speaking on social justice issues, such as the “equitable treatment of African American

participants in the criminal justice system,” ECF No. [1] ¶¶ 7, 10, those allegations must be supported by

evidence in the record.

4] at 83:4-17 (testifying that he gave an interview about Plaintiff’s termination and made it “clear”

that he terminated her because “she was unprofessional” and “not truthful”).

Defendants do not dispute that Plaintiff was terminated for certain statements made during

the Podcast, but aver that she was terminated only for the “personally and professionally” offensive

statements made against Defendant Finkelstein.5 Defendants further explain that Plaintiff has

failed to set forth any evidence to establish that Plaintiff’s “non-offensive” Designated Statements

played a substantial or motivating factor in Defendants’ employment decision, or that Defendant

Finkelstein took issue with any of her Designated Statements. ECF No. [55] at 12.

As set forth in Waters, Plaintiff must come forward with evidence demonstrating that her

Designated Statements played a substantial or motivating factor in her termination. See Waters,

511 U.S. at 681 (explaining that “[a]n employee who makes an unprotected statement is not

immunized from discipline by the fact that this statement is surrounded by protected statements.”);

see also Mt. Healthy City Sch. Dist. Bd. of Educ., 429 U.S. at 287 (The burden is placed “upon

[the employee] to show that his conduct was constitutionally protected, and that this conduct was

a ‘substantial factor’ or to put it in other words, that it was a ‘motivating’ factor’ in the [employer’s]

decision”). If the record contains no direct evidence that Plaintiff suffered an adverse employment

action on account of her statements, “the question then becomes whether the record permits the

inference that the speech [at issue] played a role in [Defendants’] decision.” Gattis, 136 F.3d at

726.

Upon review of the record, Court agrees that Plaintiff has failed to make a showing

sufficient to permit a reasonable jury to conclude that her Designated Statements played a

“substantial” or “motivating” factor behind her termination. Indeed, during her deposition,

5 See Defendants’ Designated Statements, supra; see also ECF No. [43-1] ¶¶ 19, 23; see also ECF No. [41-

4] at 54:22-66:17, 70:8-76:5, 93:19-95:24; ECF No. [41-5] at 2; ECF No. [41-6] at 2.

Plaintiff repeatedly testified that she did not know which particular statements gave rise to her

termination, ECF No. [43-2] 97:15-98:23, 103:17-104-7, 114:11-115:11, 128:12-129:20, 132:1-

25, 156:16-157:2, and explained that she rests her First Amendment retaliation claim on the “main”

statements made during the Podcast, id. at 96:17-97:8; ECF No. [43-3] at 18, ¶ 14. Yet, the

evidence in the record demonstrates that Plaintiff was terminated only for those statements made

during the Podcast that offended Defendant Finkelstein “personally and professionally.” ECF No.

[43-1] ¶¶ 19, 23; see also ECF No. [41-4] at 54:22-66:17, 70:8-76:5, 93:19-95:24; ECF No. [41-

5] at 2; ECF No. [41-6] at 2. Plaintiff has not offered any evidence demonstrating that was not the

case, and the record does not permit the inference that Defendant Finkelstein took issue with any

of her Designated Statements.6 Notably, Defendant Finkelstein testified that he agreed with

Plaintiff that the Office needed more funding, ECF No. [41-1] at 72:17-20, 81:5-82:24, that

attorneys within the Office needed more training, id., and that the Office’s clients needed access

to mental health treatments, id. at 63:13-64:5. Additionally, the record is entirely devoid of any

evidence that Defendant Finkelstein opposed Plaintiff’s desire to change how people of color are

treated within the criminal justice system.

Simply put, even if Plaintiff may be entitled to some degree of First Amendment protection

for her Designated Statements, there is no evidence in the record from which a reasonable jury

could conclude that Plaintiff’s Designated Statements played a “substantial” or “motivating” factor

in Defendants’ employment decision. Accordingly, Plaintiff’s Motion is denied.7

6 Defendants do not dispute that one of the eight statements that Plaintiff has designated played a factor in

Defendant Finkelstein’s decision to terminate Plaintiff—to wit, Plaintiff’s speech regarding Defendant

Finkelstein’s position as it relates to the Office marching in solidarity with the Black Lives Matter

movement. As explained more fully below in addressing Defendants’ Motion, this statement is not

constitutionally protected.

7 Although there is no evidence in the record to support Plaintiff’s theory that her Designated Statements

played a substantial or motivating factor in Defendants’ employment decision, Defendants concede that

C. Defendants’ Motion

In their Motion, Defendants maintain that Plaintiff’s First Amendment retaliation claim

fails as a matter of law because the record evidence demonstrates that the statements which formed

the basis of Plaintiff’s termination are not constitutionally protected. See generally ECF No. [44].

Specifically, Defendants contend that Plaintiff was terminated “for the disparaging statements she

made [during the Podcast] regarding her employer, her supervisors and fellow employees” which

are not issues of public concern and therefore do not call for First Amendment protection. Id. at 9-

12. Defendants further maintain that even if the Court were to find that some of these statements

relate to matters of public concern, Defendants’ interest in promoting the efficiency of the Office

outweighs Plaintiff’s interest in commenting upon matters of alleged public concern. Id. at 12-14.

Alternatively, Defendant Finkelstein seeks partial summary judgment on qualified immunity

grounds, arguing that there is no evidence in the record demonstrating that Defendant Finkelstein

violated any clearly established law in terminating Plaintiff’s employment. Id. at 15-19.

Plaintiff responds that summary judgment in favor of Defendants is inappropriate because

Defendants improperly seek to recharacterize Plaintiff’s statements as mere employee grievances

rather than matters of public concern. As in her Motion, Plaintiff maintains that “there can be no

question as to the constitutionally-protected status of [Plaintiff’s] statements/speech” because they

were given in the context of a campaign event. ECF No. [53] at 4. Additionally, regarding the

Pickering balancing test, Plaintiff contends that Defendants have failed to provide evidence of

actual problems or disruptions caused by her statements and, therefore, Defendants’ interests in

Plaintiff was terminated as a result of certain statements made during the Podcast that offended Defendant

Finkelstein “personally and professionally.” See Defendants’ Designated Statements, supra. Thus, in

addressing Defendants’ Motion, the Court will analyze those remaining statements at issue.

promoting the efficiency of the public services it performs cannot possibly outweigh Plaintiff’s

interest in engaging in free speech. Id. at 12-14.

i. Statements at Issue

Before addressing Defendants’ Motion, the Court sets forth the specific statements at issue.

As explained above, while Plaintiff takes the position that she was terminated for her Designated

Statements, there is no evidence in the record from which a reasonable jury could conclude that

Plaintiff’s Designated Statements played a substantial or motivating factor in Defendants’

employment decision. The record before this Court conclusively demonstrates that Plaintiff was

terminated only for those statements made during the Podcast that offended Defendant Finkelstein

personally and professionally. See ECF No. [43-1] 4-5, ¶¶ 19, 23; see also ECF No. [41-4] at

54:22-66:17, 70:8-76:5, 93:19-95:24; ECF No. [41-5] at 2; ECF No. [41-6] at 2. The statements at

issue are as follows: