Pereyra-Diaz v. City of Doral

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 24-20286-Civ-BECERRA/TORRES

YAMILETH PEREYRA-DIAZ,

Plaintiff,

v.

CITY OF DORAL, a municipal corporation

and BARBARA HERNANDEZ, an individual,

Defendants.

___________________________________________/

REPORT AND RECOMMENDATION ON

DEFENDANTS’ MOTION TO DISMISS

This matter is before the Court on Defendants’, the City of Doral’s (“the City”)

and Barbara Hernandez’s (“Ms. Hernandez”) (collectively, “Defendants”) Motion to

Dismiss Plaintiff’s, Yamileth Pereyra-Diaz’s (“Plaintiff” or “Ms. Diaz”), Amended

Complaint. [D.E. 19]. Plaintiff has responded to the motion [D.E. 28], to which

Defendants replied. [D.E. 31]. The motion, therefore, is ripe for disposition.1 After

careful review of the briefing and relevant authorities, and for the reasons set forth

below, Defendants’ motion should be DENIED.

1 On September 3, 2024, the Honorable Jacqueline Becerra referred this motion to

the Undersigned Magistrate Judge for a Report and Recommendation. [D.E. 36].

I. BACKGROUND

This case revolves around Plaintiff’s two separate employment tenures with

the City; as to the former, Plaintiff alleges a breach of contract, and as to the latter,

Plaintiff alleges 42 U.S.C. § 1983 violations.

Originally, the City employed Plaintiff as a Legal Office Manager/Paralegal

until Plaintiff’s resignation in December of 2022. After her resignation, Plaintiff

accepted a severance of seven-weeks’ pay in exchange for a general release. Plaintiff

alleges, however, that the City paid her only six weeks of severance and refuses to

pay her the seventh week as agreed. The unpaid seventh week of severance is thus

the basis for Plaintiff’s breach of contract claim.

A few months later, on May 13, 2023, Plaintiff applied to serve as Legislative

Analyst for the City (more specifically, for Doral Councilwoman Digna Cabral). In

that application, Plaintiff admittedly “neglected to mention that she had been

employed for a few weeks with the Village of Key Biscayne.” [D.E. 15 at ¶ 11].

Ten days later, on May 23, 2023, the City informed Plaintiff that her

application had been rejected because she failed to disclose her employment with Key

Biscayne. On the same day, Plaintiff received another call from the City Manager,

Defendant Hernandez, together with Councilwoman Cabral. On that call, Ms.

Hernandez allegedly “grilled” Plaintiff for failing to disclose her employment with

Key Biscayne. [Id. at ¶ 14]. But Councilwoman Digna Cabral stated during the call

that she nonetheless wished to hire Plaintiff as her Legislative Analyst.

Nevertheless, three days later on May 26, 2023, the City still hired Plaintiff

for the Legislative Analyst position to begin on May 30, 2023. One week later, on

June 6, 2023, Ms. Hernandez suddenly emailed Plaintiff a termination letter that

terminated Plaintiff for her failure to disclose her prior job with Key Biscayne. The

City’s termination letter did not include an opportunity for “any name-clearing

hearing” nor an opportunity to “appeal … the adverse decision made … by

Hernandez.” [Id. at ¶ 22; 24].

After her termination, Plaintiff filed this lawsuit against the City and Ms.

Hernandez. The Complaint includes three counts:

• Count I: Deprivation of Property Interest Without Due Process of Law

(against the City and Ms. Hernandez);

• Count II: Deprivation of Liberty Interest Without Due Process of Law

(against the City and Ms. Hernandez); and

• Count III: Breach of Severance Agreement (against only the City).

In the pending motion, Defendants seek to dismiss each count for failure to

state a claim. Defendant also argues that Ms. Hernandez cannot be sued under

qualified immunity.

II. APPLICABLE LAW AND PRINICPLES

Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a claim

for failure to state a claim upon which relief can be granted. “To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Conclusory

statements, assertions or labels will not survive a 12(b)(6) motion to dismiss. Id. “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.; see also Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th Cir. 2010)

(setting forth the plausibility standard). “Factual allegations must be enough to raise

a right to relief above the speculative level[.]” Twombly, 550 U.S. at 555 (citation

omitted). Additionally:

Although it must accept well-pled facts as true, the court is not required

to accept a plaintiff's legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009) (noting “the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal

conclusions”). In evaluating the sufficiency of a plaintiff's pleadings, we

make reasonable inferences in Plaintiff's favor, “but we are not required

to draw plaintiff’s inference.” Aldana v. Del Monte Fresh Produce, N.A.,

Inc., 416 F.3d 1242, 1248 (11th Cir. 2005). Similarly, “unwarranted

deductions of fact” in a complaint are not admitted as true for the

purpose of testing the sufficiency of plaintiff's allegations. Id.; see also

Iqbal, 556 U.S. at 681 (stating conclusory allegations are “not entitled

to be assumed true”).

Sinaltrainal v. Coca-Cola, 578 F.3d 1252, 1260 (11th Cir. 2009), abrogated on other

grounds by Mohamad v. Palestinian Auth., 566 U.S. 449, 453 n.2 (2012). The

Eleventh Circuit has endorsed “a ‘two-pronged approach’ in applying these principles:

1) eliminate any allegations in the complaint that are merely legal conclusions; and

2) where there are well-pleaded factual allegations, ‘assume their veracity and then

determine whether they plausibly give rise to an entitlement to relief.’” American

Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 556

U.S. at 679).

III. ANALYSIS

Defendants move to dismiss the entirety of Plaintiff’s Amended Complaint.

Specifically, Defendants argue that Plaintiff has not established a protected property

interest for purposes of due process; has not suffered from constitutionally inadequate

process; has not adequately alleged a false statement to support her “stigma plus”

claim (and therefore has not suffered deprivation of a liberty interest); and has not

stated a claim for breach of contract under Florida law. Additionally, Defendant

asserts that Ms. Hernandez should be entitled to qualified immunity, which would

prevent her from being sued as to Counts I and II.

Plaintiff, in response, asserts that she has alleged adequate facts to render

each of her claims plausible. Additionally, Plaintiff argues that Ms. Hernandez is not

entitled to qualified immunity because her actions do not satisfy the Eleventh

Circuit’s requirements. We will first turn to Defendants’ due process arguments,

before analyzing qualified immunity and the breach of contract claim.

A. Plaintiff’s Property Interest Claim

Defendant moves to dismiss Plaintiff’s first procedural due process claim on

two separate bases: first, that Plaintiff had no valid property interest because she

had no expected interest in her continued employment with the City, and second, that

Plaintiff did not suffer from unconstitutional process because Plaintiff could have

sought state review of her termination.

1. Valid Property Interest

“Whether an employee has a property interest in his job is determined by

reference to state law.” Hollis v. W. Acad. Charter, Inc., 782 F. App'x 951, 957 (11th

Cir. 2019) (citing Bishop v. Wood, 426 U.S. 341, 344, 96 S.Ct. 2074, 48 L.Ed.2d 684

(1976)). In Florida, “an ‘at-will’ employee has no property right in continued

employment.” Noles v. Wakulla Cnty. Bd. of Cnty. Comm'rs, No. 4:12CV79-RS/CAS,

2012 WL 3230499, at *3 (N.D. Fla. May 31, 2012), report and recommendation

adopted, 2012 WL 3206220 (N.D. Fla. Aug. 6, 2012) (citing Blanton v. Griel Memorial

Psychiatric Griel Memorial Psychiatric Hosp., 758 F.2d 1540, 1542 (11th Cir. 1985)).

But, “a public employee has a property interest in continued employment if state law

or local ordinance in any way limits the power of the appointing body to dismiss an

employee.” Gonzalez v. City of Hialeah, 744 F. App'x 611, 614 (11th Cir. 2018)

(quoting Ross v. Clayton Cnty., Ga., 173 F.3d 1305, 1307 (11th Cir. 1999)).

Here, Defendant argues that Plaintiff was purely an at-will employee and,

therefore, had no property interest in her job. In support, Defendant avers that the

City Charter does not contain any language that confers upon Plaintiff an expected

continued employment interest. That is, under the City Charter, Plaintiff is merely

an at-will employee.

Plaintiff, meanwhile, has a different interpretation of the City Charter. Under

the City Charter, a City Manager (i.e., Ms. Hernandez) has the power to terminate

employees if that termination is “reasonable,” and if that termination “involves

violations of the City’s laws and policies, and only if advance notice of the action is

given to the Councilmember to whom the impacted staff member reports.” [D.E. 28

at 4–5]. Plaintiff interprets this language as “cause”; i.e., that Plaintiff was not an

“at-will” employee because there were restrictions placed on the City Manager’s

ability to terminate her. Accordingly, Plaintiff argues that she had a property

interest in her employment.

Upon review of the City Charter, we agree with Plaintiff that, at this stage,

she plausibly alleges a valid property interest in her employment. The City Charter

confers upon the City Manager the power of “hiring, supervis[ing], and removal of all

City employees, except as otherwise limited in Section 4.02 here.” [D.E. 28-2 at 2].

Section 4.02, meanwhile, states the following in pertinent part:

The City Manager shall retain the right to enforce reasonable discipline

[of] the Councilmembers’ staff, including termination, for violating the

City’s laws and policies. The City Manager must provide advanced

notice to Councilmember to whom the staff member reports.

[D.E. 28-1 at 2]. Based on this plain language, Plaintiff’s view that she may be

terminated by the City Manager only “for cause” is plausible. That is, the City

Charter’s language that the City Manager’s right to terminate employees is

limited to instances where an employee “violat[es] the City’s laws and policies”

can be reasonably understood as “for cause” termination.

Guiding our conclusion is the principle that “a public employee has a

property interest in continued employment if state law or local ordinance in

any way ‘limits the power of the appointing body to dismiss an employee.’”

Ross, 173 F.3d at 1307 (emphasis added) (quoting Barnett v. Housing Auth. of

City of Atlanta, 707 F.2d 1571, 1577 (11th Cir. 1983)). Here, by placing even

somewhat restrictive language on the City Manager’s ability to terminate

Councilmembers’ staff, Plaintiff plausibly alleges that she is not a purely “at-

will” employee. See Nelson v. Mustian, 502 F. Supp. 698, 706 (N.D. Fla. 1980)

(holding that the plaintiff could be fired only for cause and therefore had a

property interest in his employment where the relevant handbook language

stated that: “Any failure to live up to the rules or any conduct that affects the

efficient service of the Hospital gives cause for censure and possible

dismissal.”); Metro. Dade Cnty. v. Sokolowski, 439 So. 2d 932, 934 (Fla. 3d DCA

1983) (finding that the plaintiff-police officers could be fired only for cause and

therefore had a property interest in their employment based on the following

excerpt from the county code: “Any employee may be suspended or reduced in

grade or dismissed ... for any cause which will promote the efficiency of the

service.”); Brown v. Georgia Dep't of Revenue, 881 F.2d 1018, 1028 (11th Cir.

1989) (interpreting virtually identical Georgia law and finding that the

plaintiff-employee had a property interest in his employment because “[a]s a

whole, the [governing] regulations provided that an employee is entitled to

believe he will have a job unless he does something to disentitle himself to it”);

cf. Rico v. Sch. Bd. of Miami-Dade Cnty. Pub. Sch., 733 F. Supp. 2d 1319, 1329

(S.D. Fla. 2010) (holding that the plaintiff-employee’s employment was “at-

will” because the relevant language of the handbook was titled “Termination

for No Cause,” and unambiguously “allowed the School Board to terminate

Rico's employment at ‘any time’”).

Yet Defendant insists that, because the City Charter does not

specifically confer upon Plaintiff (or her position) a constitutionally-protected

employment right, no such right exists. But such an exact and precise reference

is not required. Rather, the constitutionally-protected property interest is

created when, as interpreted by state law, the employee can be fired only “for

cause.” See Brown v. Georgia Dep't of Revenue, 881 F.2d 1018, 1025 (11th Cir.

1989) (noting that “as a matter of federal law a property interest is created

whenever a public employee can only be fired ‘for cause’” and “[s]tate law

determines whether a particular employee is terminable at will or only for

cause”).

Here, a reasonable and plausible inference can be drawn that the City

Charter, as interpreted by Florida law principles, only permits the City

Manager to terminate Plaintiff “for cause.” Under Eleventh Circuit precedent,

that is all that is required to create a plausible property interest in

employment.

Accordingly, Plaintiff has alleged facts to support a reasonable inference

that she could be terminated by the City Manager only “for cause.” As to this

argument, then, Defendants’ motion should be denied.

2. Adequate Process

Next, Defendants argue that Plaintiff fails to plausibly allege that she

was provided constitutionally inadequate process.

A “procedural due process violation is not complete ‘unless and until the

State fails to provide due process.’” McKinney v. Pate, 20 F.3d 1550, 1557 (11th

Cir. 1994) (quoting Zinermon v. Burch, 494 U.S. 113, 123 (1990)). If a

constitutional deprivation takes place, “the state may cure a procedural

deprivation by providing a later procedural remedy; only when the state

refuses to provide a process sufficient to remedy the procedural deprivation

does a constitutional violation actionable under section 1983 arise.” Id. The

Eleventh Circuit has interpreted the process due as “not only that employed

by the board, agency, or other governmental entity whose action is in question,

but also … the remedial process state courts would provide if asked.” Horton

v. Bd. of Cnty. Comm'rs of Flagler Cnty., 202 F.3d 1297, 1300 (11th Cir. 2000).

Defendants conclude that “the Complaint is devoid of any allegations

that Plaintiff ever substantively pursued any state law avenue to challenge the

purported deprivation of a purported property interest.” [D.E. 19 at 4]. Thus,

because Plaintiff did not pursue state court review prior to filing this federal

lawsuit, her procedural due process claim must fail.

Plaintiff, conversely, maintains that she received no pre- or post-

termination hearing at all. As a result, Plaintiff asserts that the state cannot

cure its due process violation via a state court remedy because the violation

was complete upon the City’s failure to provide a hearing. Thus, in Plaintiff’s

view, because she received no termination hearing, she had no duty to initiate

state court review.

We agree with Plaintiff. The Supreme Court has recognized that “‘the

root requirement’ of the Due Process Clause” is “‘that an individual be given

an opportunity for a hearing before he is deprived of any significant property

interest.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985)

(quoting Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780, 786, 28 L.Ed.2d

113 (1971)).

Defendants do not dispute the allegation that the City failed to provide

Plaintiff with a pre- or post-termination hearing. Under these undisputed

facts, then, the Court turns to Galbreath v. Hale County, Ala. Comm’n, 754

Fed. App’x 820 (11th Cir. 2018). In Galbreath, the employer argued that the

plaintiff’s procedural due process claim should have failed “because she could

have sought a state-court hearing on her termination.” Id. at 827. The plaintiff,

however, “received no [pre- or post-termination] hearing at all.” Id. at 828.

Thus, “the District Court correctly ruled [that the plaintiff’s] claim, which is

based on the ‘complete lack of a pretermination hearing,’ is not barred by

McKinney.” Id. That is, because the plaintiff received no pre- or post-

termination hearing, McKinney’s requirement that the plaintiff seek state

court review had no application.

Thus, Galbrath makes clear that, under Loudermill, a state employee

with a property interest in her employment is entitled to a termination

hearing. Where a termination hearing is provided in some form, it is possible

for the state to cure any inadequate process through state court intervention.

But where no hearing is provided—as here and as in Galbrath—a plaintiff’s

failure to petition to the state court does not bar her procedural due process

claim. See id. (“Properly understood, McKinney’s holding that a state ‘may cure

a procedural deprivation by providing a later procedural remedy’ is true only

where post-deprivation procedures satisfy due process. But, where a due

process violation is already complete because no hearing was held as required

by Loudermill, McKinney has no application.”).

Thus, we reject Defendant’s argument that Plaintiff’s claim fails because

she did not seek redress in state court and recommend that Defendants’ motion

be denied on this score. See, e.g., Ortiz v. City of Miami, No. 20-25132-CIV,

2021 WL 5759700, at *4 (S.D. Fla. Dec. 3, 2021) (rejecting the defendant’s

argument under McKinney that the plaintiff’s procedural due process claim

should be dismissed for failure to seek redress in state court because the

plaintiff “was deprived of both a pre-determination and post-determination

hearing,” and thus the plaintiff’s “claim [was] not barred by McKinney”).

B. Plaintiff’s Liberty Interest Claim

Defendant also moves to dismiss Plaintiff’s claim for deprivation of a liberty

interest; i.e., Plaintiff’s “stigma plus” claim.

To establish a liberty interest claim, Plaintiff must establish: “(1) a false

statement; (2) of a stigmatizing nature; (3) attending a governmental employee's

discharge; (4) made public; (5) by the governmental employer; and (6) without a

meaningful opportunity for a name clearing hearing.” Buxton v. City of Plant City,

Fla., 871 F.2d 1037, 1042-43 (11th Cir. 1989). In connection with a “stigma-plus”

claim, the Eleventh Circuit has found that “when reputational damage is sustained

in connection with a termination of employment, it may give rise to a procedural due

process claim for deprivation of liberty which is actionable under section 1983.”

Cotton v. Jackson, 216 F.3d 1328, 1330 (11th Cir. 2000). “[T]he ‘stigma-plus’ standard

requires a plaintiff to show that the government official’s conduct deprived the

plaintiff of a previously recognized property or liberty interest in addition to

damaging the plaintiff's reputation.” Cypress Ins. Co. v. Clark, 144 F.3d 1435, 1436

(11th Cir. 1998).

Here, Defendants attack only the first two elements: that Plaintiff has not

plausibly alleged that Defendants have published “a false statement of a stigmatizing

nature.” Buxton, 871 F.2d at 1042. To that end, Defendants assert that Plaintiff’s

termination letter contained no false, stigmatizing, disparaging, or misleading facts

or omissions. Thus, in Defendants’ view, Plaintiff’s “stigma plus” claim must fail as a

matter of law.

Conversely, Plaintiff argues that the termination letter does in fact contain

false factual statements, as well as material omissions, which paint Plaintiff as

dishonest. Specifically, Plaintiff argues that the termination letter incorrectly states

that Plaintiff “provided false information during the hiring process” relating to her

Key Biscayne employment. [D.E. 28 at 12]. Further, Plaintiff asserts that the

termination letter omits crucial facts surrounding Plaintiff’s termination; namely,

that Ms. Hernandez and Councilwoman Cabral were fully aware of Plaintiff’s Key

Biscayne employment before hiring Plaintiff. Thus, as a result of these allegedly false

statements of fact and material omissions, Plaintiff argues that she has stated a

plausible “stigma plus” claim.

Turning to Plaintiff’s Amended Complaint, she alleges that, before being hired

by the City to work for Councilwoman Cabral, she informed the City that “she had

only been [at Key Biscayne] a very short time and had not received any experience

that would be relevant to the applied-for position.” [D.E. 15 at ¶ 12]. Then, on the

same day, Plaintiff alleges that she confirmed with the City “that she had worked for

Key Biscayne for just a few weeks and explained her reason for not adding the

information on the employment application.” [D.E. 15 at ¶ 14]. Plaintiff also alleges

that the decision to hire Plaintiff was made after these conversations took place; thus,

Plaintiff alleges, the City was fully aware of Plaintiff’s Key Biscayne employment

before hiring her.

Based on the language of the termination letter combined with Plaintiff’s

allegations, we reject Defendant’s argument that Plaintiff has not adequately alleged

a false, stigmatizing statement and/or omission. The termination letter states that by

failing to disclose the Key Biscayne job in her application and during the hiring

process, Plaintiff “provided false information during the hiring process” which

constituted “a serious breach of trust that cannot be overlooked.” [D.E. 15-4 at 3]. At

this stage, accepting all of Plaintiff’s allegations as true, it is at least plausible that

this statement is false and stigmatizing.

More specifically, Plaintiff’s allegations (taken as true) can plausibly render

false the termination letter’s proclamation that she was “dishonest” during the hiring

process. That is, while it remains possible that the trier of fact will find that Plaintiff

was indeed dishonest, it is at least plausible that Plaintiff’s representations fell short

of per se falsehoods. This is especially true considering (1) Plaintiff’s alleged

explanation of the Key Biscayne employment being left off of her application; (2)

Plaintiff allegedly nonetheless disclosing that employment “during the hiring

process”; and (3) that Defendants allegedly hired Plaintiff after learning about her

apparent dishonesty.

These facts, taken together and accepted as true, produce a reasonable

inference that Defendants’ statement that Plaintiff was “dishonest during the hiring

process” is false. These plausible allegations, paired with Defendants failure to

provide any factually-similar authority that supports the adoption of their position,

leads us to reject Defendants’ argument.

To be clear, we do not hold that Defendants did make a false, stigmatizing

representation in the termination letter. But we cannot find at this stage, and as a

matter of law, that Plaintiff’s allegations that the termination letter contains false,

stigmatizing statements is unplausible. Accordingly, we recommend that Defendants’

motion be denied as to this claim.

C. Unconstitutional Policy or Custom

Further, Defendants move to insulate the City from liability as to both counts

I and II of Plaintiff’s Amended Complaint on the grounds that Plaintiff has not

alleged that an unconstitutional custom or practice of the City caused her ostensible

injury.

A local government or municipality may be sued under section 1983 “when

execution of a government's policy or custom, whether made by its lawmakers or by

those whose edicts or acts may fairly be said to represent official policy, inflicts the

injury that the government as an entity is responsible under § 1983.” Monell v. Dep't

of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). A plaintiff, therefore,

“must show that [the City] ha[d] a custom or practice of permitting it and that [City’s]

custom or practice [was] ‘the moving force [behind] the constitutional violation.’”

Craig v. Floyd Cnty., Ga., 643 F.3d 1306, 1310 (11th Cir. 2011) (quoting Grech v.

Clayton Cnty., Ga., 335 F.3d 1326, 1329 (11th Cir. 2003) (en banc)).

“Municipal liability may also attach if final policymakers have acquiesced in a

longstanding practice that constitutes the entity's standard operating procedure.”

Hoefling v. City of Miami, 811 F.3d 1271, 1279 (11th Cir. 2016) (citing Bd. of Cty.

Commissioners v. Brown, 520 U.S. 397, 403–04 (1997)). In instances where the

plaintiff alleges a single decisionmaker engaged in the constitutional violation,

“‘liability may arise from ‘a course of action tailored to a particular situation and not

intended to control decisions in later situations,’ provided that ‘the decisionmaker

possesses final authority to establish municipal policy with respect to the action

ordered.’” Scala v. City of Winter Park, 116 F.3d 1396, 1399 (11th Cir. 1997) (quoting

Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)). Additionally, “identifying

and proving that a final policymaker acted on behalf of a municipality is an

evidentiary standard, and not a pleading requirement.” Hoefling, 811 F.3d at 1280.

Defendants argue that Plaintiff’s Amended Complaint “is devoid of substantive

factual allegations establishing any long-standing custom of violating City employees’

purported procedural due process or liberty interest rights.” [D.E. 19 at 7].

Defendants further argue that Plaintiff has pleaded no facts that suggest such a

policy, even if it existed, was the moving force behind Plaintiff’s alleged constitutional

depravations.

In response, Plaintiff argues that under the “single-decision-by-a-municipal-

policymaker theory,” Plaintiff has plausibly alleged that Ms. Hernandez was the final

policy making authority with respect to terminating City employees, and was also the

individual who terminated Plaintiff. This is evidenced, asserts Plaintiff, by the fact

that the City Charter does not contemplate administrative review of Ms. Hernandez’s

termination decisions. Thus, Plaintiff argues that she has alleged sufficient facts to

impose municipal liability as to Counts I and II.

Indeed, Plaintiff does allege that “Hernandez, as Doral’s City Manager, … had

final policymaking authority and was the final decision maker regarding [Plaintiff’s]

termination ….” [D.E. 15 at ¶ 26]. And it is true, based on the City Charter excerpts

that Plaintiff relies upon in the Amended Complaint, that there exists (or at least,

Plaintiff has plausibly alleged) no administrative review for Ms. Hernandez’s

termination decisions. See Scala, 116 F.3d at 1401 (noting that “[f]inal policymaking

authority over a particular subject area does not vest in an official whose decisions in

the area are subject to meaningful administrative review”).

At this stage, then, Plaintiff’s allegations seem to fit within the “single-

decision-by-a-municipal-policymaker theory” and survive Defendants’ motion to

dismiss. See Perez v. City of Opa-Locka, 629 F. Supp. 3d 1164, 1189 (S.D. Fla. 2022)

(holding the plaintiff “plausibly allege[d] that a final policymaker” deprived the

plaintiff of constitutional rights where the decisionmaker’s actions plausibly resulted

in a constitutional violation and were plausibly alleged to not be subject to

meaningful administrative review); see also Davis v. City of Apopka, 734 F. App'x 616,

620 (11th Cir. 2018) (holding that the plaintiff plausibly alleged municipal liability

via “a single decision by a municipal policymaker” because “[t]he complaint clearly

alleged that Manley, as Chief of Police, personally directed the warrantless search of

the Davis home. The complaint did not expressly state that Manley was a final

policymaker, but that is in no way fatal to Davis's claim because whether an

individual is a final policymaker is a question of law, not fact. Complaints must allege

facts; they are not required to allege conclusions of law.”).

We acknowledge Defendants’ concerns that Plaintiff’s allegations do not

necessarily have evidentiary support at this stage. But that is not required. Indeed,

the Eleventh Circuit has clarified that “identifying and proving that a final

policymaker acted on behalf of a municipality is ‘an evidentiary standard, and not a

pleading requirement.’” Hoefling, 811 F.3d at 1280 (quoting Swierkiewicz v. Sorema,

N.A., 534 U.S. 506, 510 (2002)).

Surely, Defendants may wish to disprove Plaintiff’s allegations that Ms.

Hernandez was the final decisionmaker or that Ms. Hernandez has final

policymaking authority. To that end, Defendants may pursue discovery and assert

their evidentiary findings at summary judgment and/or trial. But at the pleading

stage, Plaintiff has plausibly alleged that Ms. Hernandez—the City Manager working

under a City Charter that does not provide for pre- or post-termination hearings—is

a final policymaking authority whose decisions are not subject to meaningful

administrative review. That states a plausible claim. See, e.g., Congleton v. Gadsden

Cnty., Fla., No. 4:11-CV-00097-SPM, 2011 WL 2174350, at *3 (N.D. Fla. June 1, 2011)

(“This Court is not deciding whether Lawler had final policymaking authority, only

whether Congleton alleged sufficient facts to make it plausible that Lawler had such

authority. On the basis of Congleton's allegations, it is reasonable for this Court to

draw the inference that Gadsden County is liable for the actions of Lawler, who

plausibly has official authority to act for the county.”).

Accordingly, on this score, Defendants’ motion should be denied.

D. Qualified Immunity

We turn to Defendants’ argument that qualified immunity should insulate Ms.

Hernandez from liability as a matter of law.

“Qualified immunity protects government officials performing discretionary

functions ... from liability if their conduct violates no clearly established statutory or

constitutional rights of which a reasonable person would have known.” Jacoby v.

Baldwin Cnty., 835 F.3d 1338, 1343–44 (11th Cir. 2016) (quoting Foy v. Holston, 94

F.3d 1528, 1532 (11th Cir. 1996)). Where the public official is acting in her

discretionary capacity, “the burden shifts to the plaintiff[ ] to show that qualified

immunity is inappropriate.” Terrell v. Smith, 668 F.3d 1244, 1250 (11th Cir. 2012)

(citing Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)).

To satisfy this burden, Plaintiff faces a two-part test. “First, the plaintiff[ ]

must allege facts that establish that the officer violated [the plaintiff’s] constitutional

rights; and second, the plaintiffs must also show that the right involved was ‘clearly

established’ at the time of the putative misconduct.” Id. at 1250 (quoting Pearson v.

Callahan, 555 U.S. 223, 232 (2009)). This doctrine aims to “protect[ ] from suit ‘all

but the plainly incompetent or one who is knowingly violating the federal law.’” Lee,

284 F.3d at 1194 (quoting Willingham v. Loughnan, 261 F.3d 1178, 1187 (11th Cir.

2001)). A constitutional right is “clearly established” for qualified immunity purposes

if the state actor had “fair warning” that her conduct was unconstitutional via

precedent from “the United States Supreme Court, the Eleventh Circuit, or the

highest court of the state where the [conduct] took place.” Mikko v. City of Atlanta,

Ga., 857 F.3d 1136, 1146 (11th Cir. 2017) (internal citations omitted).

Here, Plaintiff does not meaningfully dispute that Ms. Hernandez acted within

her discretionary capacity. Further, we have already found that Plaintiff has

plausibly alleged constitutional deprivations. Thus, our analysis will center on

whether Plaintiff’s allegedly violated rights (i.e., her liberty interest and her property

interest) were clearly established for qualified immunity purposes.

Defendants argue that Plaintiff has failed to adequately allege that, when Ms.

Hernandez exercised her discretionary duties, Ms. Hernandez knowingly violated

Plaintiff’s constitutional rights. Further, Defendants aver that Plaintiff has not

established that Ms. Hernandez acted so incompetently, and without regard for

Plaintiff’s constitutional rights, as to expose her to suit and liability.

Plaintiff, meanwhile, argues that at the time of her termination, both her

property interest in her employment and her liberty interest in her reputation were

clearly established under Eleventh Circuit precedent. Thus, Plaintiff argues that

because Ms. Hernandez had “fair warning” of Plaintiff’s relevant rights, Plaintiff’s

allegations plausibly stave off qualified immunity.

1. Liberty Claim

As to the liberty deprivation claim, Plaintiff has plausibly alleged that Ms.

Hernandez had “fair warning” that she, by publishing plausibly-false, stigmatizing

information and not providing Plaintiff with a name-clearing hearing, was violating

Plaintiff’s constitutional rights. Indeed, it is beyond debate that it is unconstitutional

for a state-actor employer to publish false, stigmatizing information without

providing a name-clearing hearing either pre- or post-termination; indeed, published

Eleventh Circuit opinions have held so in clear terms. See Buxton, 871 F.2d at 1046

(“We hold that a public employer is required to provide the opportunity for a post-

termination name-clearing hearing when stigmatizing information is made part of

the public records, or otherwise published. Notice of the right to such a hearing is

required.”).

In support of their contrary argument, Defendants both fail to cite to any

authority presenting factually similar scenarios in which qualified immunity was

applied, and fail to grapple with the persuasive caselaw presented by Plaintiff—

namely, Johnston v. Borders, 724 F. App’x 762 (11th Cir. 2018). There, a sheriff

sought qualified immunity after publishing allegedly stigmatizing information in the

plaintiff’s personnel files. The court refused to apply qualified immunity, because

“[s]everal of [this Circuit’s] published decisions gave Sheriff Borders ‘fair warning’

that his conduct was unconstitutional.” Id. at 768. Specifically, this Circuit has “held

that government employees are entitled to a meaningful opportunity for a name

clearing hearing after an employer places allegedly false and stigmatizing

information in their personnel files.” Id. (citing Cotton v. Jackson, 216 F.3d 1328 (11th

Cir. 2000) and (Buxton, 871 F.2d at 1038). Thus, the sheriff was not entitled to

qualified immunity.

Here, nearly identically, Plaintiff has plausibly alleged that Ms. Hernandez

terminated Plaintiff and published false, stigmatizing information in her personnel

file without an opportunity for hearing. We see no reason to stray from the analysis

in Johnson, which relies on published opinions in this Circuit that held that an

opportunity for hearing is required under these facts. Thus, because, as Johnston

points out, Ms. Hernandez had “fair warning” that her actions were unconstitutional,

we find that Plaintiff’s allegations should stave off the application of qualified

immunity.

Thus, Ms. Hernandez should not be entitled to qualified immunity as to

Plaintiff’s “stigma plus” liberty claim.

2. Property Claim

As to the property deprivation claim, it is similarly well established by

Eleventh Circuit precedent that state employees who are not “at-will” have a

continued property interest in their employment. See Barnes v. Zaccari, 669 F.3d

1295, 1303 (11th Cir. 2012) (quoting Logan v. Zimmerman Brush Co., 455 U.S. 422,

430 (1982)) (“The hallmark of property ... is an individual entitlement grounded in

state law, which cannot be removed except ‘for cause.’”); Hearn v. City of Gainesville,

688 F.2d 1328, 1332 (11th Cir. 1982) (citing Laney v. Holbrook, 150 Fla. 622 (1942))

(“Where a statute or ordinance lists specific grounds for discharge of a public

employee or states that a public employee can only be terminated for just cause,

Florida courts hold that the employee has a property right of which he cannot be

deprived without due process.”); Taylor v. Bd. of Regents of Univ. Sys. of Georgia, No.

1:20-CV-5048-SEG, 2022 WL 4857906, at *16 (N.D. Ga. Oct. 3, 2022) (quoting Barnes,

669 F.3d at 1307) (“It is, to be sure, clearly established that ‘when a government

benefit cannot be removed except ‘for cause,’ an individual has a property interest in

that benefit[.]’”).

Here, Defendants offer no reason or authority as to why Ms. Hernandez—the

City Manager—would not have “fair warning” of the laws governing her conduct.

More specifically, Defendants have not persuaded us that, when (taking Plaintiff’s

allegations as true) Ms. Hernandez allegedly terminated Plaintiff “for cause” and

failed to provide a pre- or post-termination hearing, she was reasonably unaware of

the constitutional infirmities. Accordingly, having found that Plaintiff has plausibly

alleged a constitutional violation of which Ms. Hernandez should have had “fair

warning,” we find Defendants’ conclusory argument to be unpersuasive. See Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982) (“If the law was clearly established, the

immunity defense ordinarily should fail, since a reasonably competent public official

should know the law governing his conduct.”); Barnes, 669 F.3d at 1308 (affirming

the denial of qualified immunity defense because “(1) Barnes had a protected property

interest and that (2) he was due some predeprivation process before VSU could

deprive him of that interest. Because Barnes received no predeprivation process, we

affirm the district court's denial of Zaccari's motion for summary judgment grounded

on qualified immunity”).

Thus, at this stage, Defendants’ request for qualified immunity should be

denied without prejudice. Ms. Hernandez, of course, is free to raise this issue again

at summary judgment or trial.

E. Breach of Contract Claim

Lastly, the City moves to dismiss Plaintiff’s breach of contract claim for

allegedly-unpaid severance. The City paid Plaintiff six weeks of severance rather

than the seven weeks that was agreed to in the parties’ general release agreement.

After the general release was executed, the City contends, it learned that the

severance provision violated Florida law (§ 215.425(4)(b), Fla. Stat) because a general

release agreement cannot provide for a severance payment that exceeds six weeks.

Thus, the City asserts that its hands are tied: it would violate Florida law for the City

to pay a seventh week of severance, and therefore Plaintiff’s breach of contract claim

should be dismissed with prejudice.

Plaintiff responds that § 215.425(4)(b) does not apply because the release

agreement did not settle “an employment dispute” between the parties. Rather,

Plaintiff alleges that she resigned voluntary and no employment dispute preceded

that resignation. And, Plaintiff argues, because the severance did not settle “an

employment dispute,” § 215.425(4)(b)’s six-week cap has no application. Accordingly,

Plaintiff contends, there is no six-week cap on severance payments and Defendants

only argument fails.

This issue hinges on whether § 215.425(4)(a) or § 215.425(4)(b) should apply.

If subsection (b) applies (that is, if the severance pay “represents the settlement of an

employment dispute”), only six weeks of severance is permitted and Defendants’

motion succeeds. But if the severance pay does not “represent the settlement of an

employment dispute,” then subsection (a) applies; that subsection permits twenty

weeks of severance, and thus Defendants’ motion would fail.

Plaintiff pleads (which we must accept as true at this juncture) that she

voluntarily resigned—not that she resigned as the result of an “employment dispute.”

While it may appear odd that the City would voluntarily pay Plaintiff seven weeks of

severance despite their being no dispute, Defendants have not meaningfully argued

that any employment dispute existed. Thus, we (1) have plausible allegations that

undermine the application of § 215.425(4)(b) (i.e., that the severance pay did not

necessarily “represent the settlement of an employment dispute”), and (2) no helpful

argument (and no authority) from the City that § 215.425(4)(b) should apply in spite

of Plaintiff’s presumably veracious allegations.

Thus, in light of the motion to dismiss standard and Plaintiff’s allegations that

no employment dispute preceded her voluntary resignation, we conclude that the

City’s motion to dismiss this claim should be denied. Perhaps there exists evidence

that an employment dispute did in fact precede Plaintiff’s resignation; we make no

finding either way. Indeed, that finding is best suited for summary judgment or trial

after the parties have had an opportunity to conduct discovery and develop a record

on the matter. But based on the current record, we find that Plaintiff’s allegations

plausibly allege the non-existence of an employment dispute preceding her

resignation, and thus Plaintiff plausibly staves off, for the moment, application of

§ 215.425(4)(b).

Thus, Defendants’ motion to dismiss as to Count III should also be denied.

IV. CONCLUSION

For the reasons set forth above, we recommend that Defendants’ Motion to

Dismiss [D.E. 19] be DENIED.

Pursuant to Local Magistrate Rule 4(b) and Fed. R. Civ. P. 73, the parties have

fourteen (14) days from service of this Report and Recommendation within which to

file written objections, if any, to the District Judge. Failure to timely file objections

shall bar the parties from de novo determination by the District Judge of any factual

or legal issue covered in the Report and shall bar the parties from challenging on

appeal the District Judge’s Order based on any unobjected-to factual or legal

conclusions included in the Report. 28 U.S.C. § 636(b)(1); 11th Cir. Rule 3-1; see, e.g.,

Patton v. Rowell, 2017 WL 443634 (11th Cir. Feb. 2, 2017); Cooley v. Commissioner

of Social Security, 2016 WL 7321208 (11th Cir. Dec. 16, 2016).

DONE AND SUBMITTED in Chambers at Miami, Florida, this 23rd day of

September, 2024.

/s/ Edwin G. Torres

EDWIN G. TORRES

Chief United States Magistrate Judge