Sims v. Metropolitan Dade County

HATCHETT, Circuit Judge,

dissenting:

I respectfully dissent. The district court properly considered the county officials’ qualified immunity based summary judgment motion and did not err in denying it without prejudice.

The majority approaches this case as though the determinative factor is what Sims said. Obviously, under the Pickering balancing test, what Sims said is not as important as is the effect of what he said. It is difficult to understand how the majority, without a fact record, can determine the effects of Sims’s statements on the Department and on his ability to serve the Department. Not one bit of evidence is referred to in the majority opinion on this subject. No such evidence is referred to in the majority opinion because it does not exist. The district court correctly ruled that it would decide the qualified immunity issue once facts were developed. From that ruling springs a majority opinion, based not on the effects of the public employee’s statements, but on the employee’s job title and the statement the employee made. Such an analysis is heretofore unknown to First Amendment jurisprudence. Under the majority’s new employer-employee-political-speech rule, cases will be easy. The majority says: consider the employee’s job title and the statement; if the statement is inconsistent with the job title the speech is not protected. After this majority opinion, public employees in the Eleventh Circuit may only engage in political speech which the employer approves of, even if no evidence indicates that the speech harmed the employer’s mission. Controversial speech is now presumed to be harmful to the employer’s mission.

*1239 I. FACTUAL MATTERS

After an all white jury acquitted several Metro Dade police officers of charges stemming from the brutal beating and death of an African-American insurance executive, Arthur McDuffie, members of Dade County’s African-American community took to the streets to express their outrage through violence and destruction, which has become known as “the McDuffie riot.” Shortly after the McDuffie riot, Metropolitan Dade County hired Willie Sims, an African-American community leader, to work in the Dade County Department of Community affairs (the Department). The Department placed Sims on the crisis prevention and response team and charged him with identifying and cooling down anger in the African-American community. Generally, the Department’s principal function was to investigate the concerns of the community’s various ethnic and racial groups and to take steps to ease the tension among such groups. The Community Relations Board (CRB) is comprised of volunteers the Dade County Commission appoints and has a principal function similar to that of the Department and works in conjunction with the Department. Because the county hired Sims in 1980 as a community relations specialist, he has been working with the CRB.

In 1984, the Department promoted Sims to the position of crisis prevention and response coordinator where he served as a liaison between the African-American community and the government. Sims was highly effective during the turbulent 1980s, a time in which Dade County experienced four riots resulting from the acquittal of officers charged with fatally shooting or beating African-Americans. For his work in the African-American community, Sims received an award from the United States Department of Justice.

After the Department promoted Sims to the position of coordinator of the crisis prevention and response team, the New Hope Missionary Baptist Church ordained him as a minister. Sims helped organize a new church, the Greater New Faith Missionary Baptist Church, under the parent New Hope Missionary Baptist Church and became pastor of the newly organized church. In his role as pastor, Sims gave sermons and ministered to the needs of his congregation addressing all the problems the church members faced in their daily lives, including political issues. This wide scope of concerns is traditional in African-American church activities.

In November of 1990, Ali Sosa as the Director of the Department, and the assistant director, Lloyd Major, moved Sims to the Office of Black Affairs, a less visible position in the county government, because his position on several issues affecting African-Americans had made him controversial in other Dade County communities. In this new position, Sims was expected to express the views of the African-American community.

On December 16, 1990, Sims delivered a sermon at his church concerning the city of Miami’s refusal to officially welcome Nelson Mandela, the great hero of anti-apartheid in South Africa. The controversy over the city’s treatment of Nelson Mandela prompted the African-American community to boycott stores in Miami which did not show sensitivity towards African-Americans. In his sermon, Sims stated:

We are now entering the second phase of the boycott known as ‘Rediscovering Black America.’ You should not spend your money with any business that does not hire blacks or who have not shown any sensitivity towards us in the past and you should support black businesses or those who have a history of hiring blacks. Sometimes we are made to feel like foreigners in our own homeland because of the way Spanish is spoken in many of our public facilities and businesses, such as restaurants that we frequent.

A newspaper reporter who was in attendance at Sims’s church reported that Sims had called for African-American citizens to stop doing business with white and Hispanic establishments. 1 As a result of this report, leaders of Dade County’s Hispanic *1240 community swiftly rebuked Sims. The County Manager, Joaquin Avino, learned of the controversy and directed Sosa to investigate the matter and to take disciplinary action if necessary.

Sosa and Major met with Sims to discuss the incident. At the meeting, Sims disagreed with the media’s characterization of his statements and insisted that the statements made from the pulpit of his church, while acting in his capacity as a pastor, were beyond the concern of any of his county supervisors, regardless of their content. Sims also made it clear at the meeting that he would not tolerate limitations upon his off-duty speech, especially speech made in connection with his role as a minister. 2 Sosa and Major assumed that the media’s account of Sims’s statements was accurate and suspended Sims for three days to impress upon him their belief that his statements detracted from the credibility of the Department and adversely affected his ability to perform his job.

II. PROCEDURAL HISTORY

Pursuant to 42 U.S.C. § 1983 , Sims filed an action for damages, alleging that Metropolitan Dade County and several of its officials violated his First and Fourteenth Amendment rights. Avino, Sosa, and Major, as individual defendants, moved for summary judgment based on qualified immunity. The district court denied the motion for summary judgment without prejudice to the individual defendants’ right to reassert the defense of qualified immunity at the trial of the cause.

III. DISCUSSION

Avino, Sosa, and Major (collectively “the county officials”) contend that the district court erred when, instead of resolving their qualified immunity based summary judgment motion, it denied the motion “without prejudice to the individual defendants’ right to reassert a defense of qualified immunity at the trial of this cause.” Specifically, the county officials contend that their entitlement to qualified immunity must be resolved before trial, and if possible before discovery is permitted. In Harlow v. Fitzgerald, 457 U.S. 800 , 102 S.Ct. 2727 , 73 L.Ed.2d 396 (1982), the Supreme Court held that “government officials generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow, 457 U.S. at 818 , 102 S.Ct. at 2738 .

A. The Proper Time for Qualified Immunity

The Supreme Court created the doctrine of qualified immunity to “avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment.” Harlow, 457 U.S. at 818 , 102 S.Ct. at 2738 . In order to ensure that insubstantial claims were decided at the summary judgment phase, the Supreme Court held in Mitchell v. Forsyth, 472 U.S. 511 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985) that “a district court’s denial of a claim of qualified immunity to the extent that it turns on an issue of law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291 notwithstanding the absence of a final judgment.” Mitchell, 472 U.S. at 530 , 105 S.Ct. at 2817 . The Supreme Court noted in Mitchell that the entitlement of qualified immunity “is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.” Mitchell, 472 U.S. at 526 , 105 S.Ct. at 2815 .

In Ansley v. Heinrich, 925 F.2d 1339 (11th Cir.1991), this court followed the Supreme Court’s “immunity from suit” rationale in holding that

qualified immunity is a question of law that may be asserted in three ways: (1) on a pretrial motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim; (2) as an affirmative defense in the request for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c); or (3) on a summary judgment motion pur *1241 suant to Federal Rule of Civil Procedure 56(e). All three motions precede the trial and require the district court to rule as a matter of law, whether the official is entitled to the defense of qualified immunity.

Ansley, 925 F.2d at 1347 (citations omitted.) This court concluded in Ansley that “[t]he Supreme Court’s qualified immunity precedent aims at one goal: to keep the public official out of the courtroom, free to exercise discretionary duties under clearly established law without the constant threats of lawsuits.” Ansley, 925 F.2d at 1345 . ' ■

If public officials lose at the summary judgment phase, they lose their entitlement not to stand trial. Public officials, however, do not necessarily lose their entitlement to be immune from liability. See Hamm v. Powell, 874 F.2d 766, 770-71 (11th Cir.1989), aff'd on reh’g, 893 F.2d 293 (11th Cir.1990). Although the district court should decide the legal issue of qualified immunity before trial, the district court can, of course, correct or modify its summary judgment ruling for error of law during the trial on a directed verdict motion or after the trial on a motion for judgment notwithstanding the verdict. See Zim-mem v. United States, 298 U.S. 167, 169-70 , 56 S.Ct. 706, 706-07 , 80 L.Ed. 1118 (1936).

Unresolved factual issues may also prevent the district court from disposing of the qualified immunity claim at the summary judgment phase; In such a situation, the district court may allow the ultimate finder of facts to resolve conflicting versions of the facts through the use of special interrogatories. See Warren v. Dwyer, 906 F.2d 70, 76 (2d Cir.1990). Qualified immunity, however, cannot be argued to the jury as a defense to liability. See Ansley, 925 F.2d at 1347-48 . Thus, qualified immunity is more related to whether a public official must stand trial than whether the public official may successfully defend against the plaintiff’s claims.

In this case, the district court correctly considered the qualified immunity claim before trial. The district court’s order suggests that the resolution of the defense was thwarted because of a factual dispute which can be resolved through further discovery or the submission of the different factual versions to the ultimate finder of facts. The district court correctly reasoned that after further factual development, the county officials in this case may still be entitled to qualified immunity during the trial on a directed verdict motion, or after the trial on a motion for judgment notwithstanding the verdict.

B. The Defense of Qualified Immunity

The • county officials Contend that they are entitled to summary judgment on the basis of qualified immunity. This court has held that in order to demonstrate that summary judgment is warranted on the basis of qualifiéd immunity, a public official must “establish both that he is entitled to summary judgment as a matter of law ... and that there are no genuine issues of material fact pertinent to those questions of law.” Rich v. Dollar, 841 F.2d 1558, 1562 (11th Cir.1988). In Hutton v. Strickland, 919 F.2d 1531 (11th Cir.1990), this court held that “the presence of genuine issues concerning material facts relating to the implicated legal issue indicates that the district court properly denied summary judgment and that we are without jurisdiction because the case must be tried for resolution of the factual questions.” Hutton, 919 F.2d at 136 (citing Hudgins v. City of Ashbum, Georgia, 890 F.2d 396, 403 (11th Cir.1989)).

1. Genuine Issues of Material Fact

In this case, the county officials are not entitled to summary judgment based on qualified immunity because a genuine issue of material fact exists concerning whether Sims’s statements impaired his ability to carry out his duties as a liaison for the Black Affairs Unit. The majority wrongly limits the relevant inquiry to whether a reasonable official might think that Sims’s statements diminished both his and the Department’s credibility among members of the Hispanic community. Based on this limited inquiry, the majority concludes that *1242 a genuine issue of material fact did not exist as to whether a reasonable official could believe that the statements diminished Sims’s ability to perform his job and the Department’s ability to accomplish its purpose. The majority’s limited inquiry, however, ignores the dynamics of Miami’s mul-ti-ethnic community and misapprehends the nature of Sims’s duties.

The majority fails to realize that at the time Sims made the statements in question he was no longer the coordinator for the crisis response team which attempted to foster mutual understanding among all ethnic groups and acted as a conciliator in disputes among the various ethnic communities. At the time Sims made his statements, he had been assigned to the Office of Black Affairs under the Department’s Division of Community Relations. The Department’s Community Relations Division also contained an Office of Latin Affairs and an Office of Handicapped Opportunities. Sims’s new responsibilities in the Office of Black Affairs consisted primarily of providing a vehicle that would allow the African-American community to access Dade County government in order to voice opinions and concerns over issues affecting the African-American community. Sims’s new position relieved him of the responsibility of attempting to foster a mutual understanding among all ethnic groups and limited his responsibility to dealing with the African-American community. 3

Sims contends that his statements enhanced his ability to perform his job in that they preserved his credibility in the African-American community. Sims pointed out to the county officials that in order to serve as a liaison between the African-American community and the Dade County government, he had to maintain his credibility as a leader in the African-American community and actively represent the concerns of African-Americans. Additionally, Sims noted that in maintaining his credibility with the African-American community, sometimes he would be called upon to address controversial issues and express opinions in which other ethnic communities did not concur. 4 Thus, Sims argues that without respect and admiration in the African-American community, he cannot effectively function as a liaison between the African-American community and the Dade County government.

Sims also contends that his statements were not in conflict with the primary mission of the Department of Community Affairs. Specifically, Sims contends that his statements quite properly addressed the issues and concerns affecting the African-American community, served to identify public concerns within that community, and directly addressed community issues and problems within the Dade County community as a whole.

The majority wrongly focuses on the Hispanic community instead of considering the dynamics of Miami’s multi-ethnic community. The majority fails to realize that the Department must deal with the concerns of all segments of the community in order to foster mutual understanding and tolerance among all of Dade County’s ethnic groups. Additionally, the majority misapprehends the nature of Sims’s job and what allows him to effectively perform his duties. Sims established a genuine issue of material fact upon which a question, of law must turn, and thus, the district court correctly denied *1243 the county officials’ motion for summary judgment based on qualified immunity. See Hutton, 919 F.2d at 1536 . This court is without jurisdiction because the case must be tried for resolution of the factual questions. See Hutton, 919 F.2d at 1536 .

2. Assuming the Plaintiffs Facts

For purposes of qualified immunity, the county officials may take the position that Sims’s allegations are true in order to eliminate the genuine issue of material fact. In other words, the county officials may assume that Sims’s statements did not adversely affect his ability to perform his duties nor adversely affect the Department’s mission in fostering mutual understanding between the ethnic groups in Miami. The county officials may allow the court to consider in the light most favorable to Sims all facts fairly inferable from the record, regardless of the existence of factual disputes, and decide whether, under those facts, their conduct violated the law clearly established at the time. See Bennett v. Parker, 898 F.2d 1530 , 1535 n. 2 (11th Cir.1990) (Tjoflat, C.J., concurring).

3. The Qualified Immunity Standard

The Supreme Court has held that qualified immunity affords protection to “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341 , 106 S.Ct. 1092, 1096 , 89 L.Ed.2d 271 (1986). In applying the standard for qualified immunity, this court must “conduct its review through the eyes of an objective, reasonable government official.” Nicholson v. Georgia Dept. of Human Resources, 918 F.2d 145, 147 (11th Cir.1990). In Nicholson , we held that the relevant inquiry is “could a reasonable official have believed his or her action to be lawful in light of clearly established law and the information possessed by the official at the time the conduct occurred.” Nicholson, 918 F.2d at 147 . The Supreme Court refined its objective standard for qualified immunity in Anderson v. Creighton, 483 U.S. 635, 640 , 107 S.Ct. 3034, 3039 , 97 L.Ed.2d 523 (1987), by defining the term “clearly established” as used in the language of Harlow . The Supreme Court stated that

[t]he contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful, but it is to say that in the light of preexisting law, the unlawfulness must be apparent.

Anderson, 483 U.S. at 640 , 107 S.Ct. at 3039 (citations omitted). In accord with Anderson , this court has stated that

the plaintiff must draw the court’s attention to a more particularized and fact specific inquiry. Under this inquiry, the plaintiff need not point to one or more cases that resolve the precise factual issues at issue in his or her case. Although the standard is fact specific, it is not one of factual rigidity.

Nicholson, 918 F.2d at 147 (citations omitted). The Supreme Court’s holding in Anderson , adopted in Nicholson , strikes a balance between unnecessarily burdening officials with the responsibility of divining the meaning of general constitutional and statutory terms and unreasonably failing to assess liability unless the specific action has been found unlawful. See Anderson, 483 U.S. at 639-40 , 107 S.Ct. at 3038-39 . Public officiáls are required to relate established law to analogous factual settings.' See People of Three Mile Island v. Nuclear Regulatory Commissioners, 747 F.2d 139, 144 (3d Cir.1984).

The objective standard for qualified immunity is to be applied through the use of the following two-part analysis: .

(1) the defendant public official must first prove that ‘he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.’

(2) Once the defendant public official satisfies his burden of moving forth with the evidence, the burden shifts to. the plaintiff to show lack of good faith on the defendant’s part. This burden is met by proof demonstrating that the defen *1244 dant public official’s actions ‘violated clearly established constitutional laws.’

Rich v. Dollar, 841 F.2d 1558, 1563-64 (11th Cir.1988) (quoting Zeigler v. Jackson, 716 F.2d 847, 849 (11th Cir.1983) (per cu-riam)). After establishing the two-prong objective test for qualified immunity, this court noted in Rich that the second prong of the test poses two questions of law which must be answered: (1) What was the clearly established law at the time of the public official’s actions, and (2) whether the public official’s conduct violated that clearly established law. Rich, 841 F.2d at 1564 . In order to determine whether, at the time of this incident, Sims had a clearly established right not to be suspended for his off-duty speech, the court must look to the established law in the area. See Greason v. Kemp, 891 F.2d 829, 833 (11th Cir.1990).

a. The Scope of Discretionary Authority

In applying an objective standard to the county officials’ conduct of suspending Sims, this court must determine initially if the county officials acted within the scope of their discretionary authority. We noted in Rich that “a government official can prove he acted within the scope of his discretionary authority by showing ‘objective circumstances which would compel the conclusion that his actions were undertaken pursuant to the performance of his duties and within the scope of his authority.’ ” Rich, 841 F.2d at 1564 (quoting Barker v. Norman, 651 F.2d 1107, 1121 (5th Cir. Unit A 1981)). The county officials were clearly acting within the scope of their discretionary authority because the county officials’ duties included considering complaints about the conduct of employees under their supervision and administering discipline to those employees when appropriate. The county officials’ action of suspending Sims for his off-duty speech was undertaken pursuant to their duty of disciplining employees and was thus within the scope of their discretionary authority.

b. Lack of Good Faith

This court must next apply the second part of the Rich analysis in order to determine if the county officials are entitled to qualified immunity. We must determine whether Sims has established that the county officials’ action of suspending him for three days lacked good faith because the actions violated clearly established First Amendment law. See Rich, 841 F.2d at 1563-64 . In applying the second part of the Rich analysis, we begin with determining the clearly established law.

(1) Clearly Established First Amendment Law

In Connick v. Myers, 461 U.S. 138 , 103 S.Ct. 1684 , 75 L.Ed.2d 708 (1983), the Supreme Court held that “it has been settled that a state cannot condition public employment on a basis that infringes the employees’ constitutionally protected interest in freedom of expression.” Connick, 461 U.S. at 142 , 103 S.Ct. at 1687 . The Supreme Court did note, however, that this protection is not absolute because “the state has interest as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general.” Pickering v. Board of Education, 391 U.S. 563, 568 , 88 S.Ct. 1731, 1734 , 20 L.Ed.2d 811 (1968). In Pickering , the Supreme Court held that courts must “arrive at a balance between the interest of the [public official], 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, 391 U.S. at 568 , 88 S.Ct. at 1734-35 ; see Rankin v. McPherson, 483 U.S. 378, 383 , 107 S.Ct. 2891, 2896 , 97 L.Ed.2d 315 (1978). The Supreme Court noted in Rankin that “vigilance is necessary to ensure that public employers do not use authority over employees to silence discourse, not because it hampers public functions but simply because superiors disagree with the content of employees’ speech.” Rankin, 483 U.S. at 384 , 107 S.Ct. at 2897 .

The Supreme Court also noted in Rankin that “the threshold question in applying [the Pickering] balancing test is whether [Sim’s] speech may be ‘fairly characterized *1245 as constituting speech on a matter of public concern.’ ” Rankin, 483 U.S. at 384 , 107 S.Ct. at 2897 (quoting Connick, 461 U.S. at 146 , 103 S.Ct. at 1689 ). The majority correctly recognized that Sims’s statements addressed a matter of public concern. Sims’s statements addressed the African-American community’s boycott of businesses in the Miami area. Sims’s speech invited the unfettered interchange of ideas and was part of an attempt to bring about political and social changes which the people desired, and thus addressed a matter of public concern. See Roth v. United States, 354 U.S. 476, 484 , 77 S.Ct. 1304, 1308-09 , 1 L.Ed.2d 1498 (1957); see also Connick, 461 U.S. at 145 , 103 S.Ct. at 1689 .

The Supreme Court noted in Rankin that after a court establishes the threshold issue that the speech in question is a matter of public concern,

the statement [or speech] will not be considered in a vacuum; the manner, time, and place of the employee’s expression are relevant, as is the context in which the dispute arose.... pertinent considerations [are] whether the statement impairs discipline by superiors or harmony among coworkers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise.

Rankin, 483 U.S. at 388 , 107 S.Ct. at 2899 (citations omitted). The Supreme Court did not announce a general standard against which employee speech is to be judged, and thus, this court must balance these competing interests on a case-by-case basis. See Dartland v. Metropolitan Dade County, 866 F.2d 1321 (11th Cir.1989). We must determine, in light of Pickering, Connick, and Rankin , whether a reasonable county official could have believed that his or her actions were lawful.

(2) Violating the Clearly Established Law

In Maples v. Martin, 858 F.2d 1546 (11th Cir.1988), this court held that after a court has determined that an employee’s speech can be fairly characterized as implicating a matter of public concern, the plaintiff employee must demonstrate that “the speech was a ‘substantial or motivating factor’ in the employment decision. Maples, 858 F.2d at 1552 . Additionally, this court held that “when both these showings have been made, the court will apply the balancing test set out in Pickering ... to determine ‘whether the adverse employment decision was justified.’ Maples, 858 F.2d at 1552 (quoting Ferrara v. Mills, 781 F.2d 1508, 1512 (11th Cir.1986)). In addition to admitting that Sims’s speech addressed matters of public concern, the county officials admit that Sims’s speech was a “substantial or motivating factor” in their decision to suspend him for three days. Thus, this court can apply the balancing test set out in Pickering. See Maples, 858 F.2d at 1552 .

In Dartland v. Metropolitan Dade County, 866 F.2d 1321 (11th Cir.1989), this court set out the test for determining whether a reasonable public official’s actions were lawful in light of Pickering and its progeny. In Dartland , the court stated:

[b]ecause no bright-line standard puts the reasonable public employer on notice of a constitutional violation, the employer is entitled to immunity except in the extraordinary case where Pickering balancing would lead to the inevitable conclusion that the discharge of the employee was unlawful.

Dartland, 866 F.2d at 1323 . We need not decide the precise result of applying the Pickering balancing test in this case, because the Pickering balance must lead to the inevitable conclusion that the county official’s action of suspending Sims for his off-duty speech was unlawful. Dartland, 866 F.2d at 1324 . Thus, this court must decide only whether the result of such a balancing would be so clearly in favor of protecting Sims’s right to speak that reasonable officials in the county officials’ position would necessarily know that suspending Sims for engaging in his speech violated Sims’s constitutional rights. Dart-land, 866 F.2d at 1324 ; see also Busby v. City of Orlando, 931 F.2d 764, 774 (11th *1246 Cir.1991). On Sims’s side of the Pickering scale is his interest in making statements which represent “the unfettered interchange of ideas for the bringing about of political and social changes desired by the people” — a type of speech occupying the highest rung of the hierarchy of First Amendment values. See Roth v. United States, 354 U.S. 476, 484 , 77 S.Ct. 1304, 1308-09 , 1 L.Ed.2d 1498 (1957); see also Connick, 461 U.S. at 145 , 103 S.Ct. at 1689 .

The manner, time, and place of Sims’s speech also greatly tips the Pickering balancing scale in his favor. Sims’s speech was made from the pulpit of his church during a Sunday morning sermon before his congregation of African-American citizens. In his role as pastor of the church, Sims delivered his sermon to inform his congregation about matters affecting their daily lives.

On the county officials’ side of the Pickering scale is their interest in promoting the efficiency of the public services their offices perform through their employees. See Pickering, 391 U.S. at 568 , 88 S.Ct. at 1734-35 . The county officials, however, have failed to demonstrate ' that Sims’s speech adversely affected this important interest. Assuming the facts as Sims has alleged them for purposes ■ of the county officials’ qualified immunity based summary judgment motion, Sims’s speech did not adversely affect the ability of the county officials to discipline subordinates, nor did his speech disturb the harmony among co-workers. Additionally, ■ under the facts as Sims has alleged them, his speech did not impede the performance of his duties nor adversely affect the Department’s mission of fostering mutual understanding between ethnic groups' in Miami. As noted earlier, Sims submitted evidence that his statements enhanced his ability to perform his job and enhanced the Department’s goal of maintaining open lines of communication in order to be fair and responsive to all members of the community. For purposes of evaluating the qualified immunity based summary judgment motion, this evidence stands uncontradicted.

Under Pickering , it is clear that the county officials’ action of suspending Sims for engaging in constitutionally protected speech violated clearly established First Amendment law. Reasonable public officials in the county officials’ position could not have believed that in light of the holdings and rationale of Pickering , and Con-nick, and Rankin', suspending Sims under the facts he alleged did not violate the First Amendment. Thus, the county officials are not entitled to summary judgment on the basis of qualified immunity.

IV. CONCLUSION

In this case, the district court correctly reasoned that after further factual development, the county officials may still be entitled to qualified immunity during the trial on a directed verdict motion or after the trial on a motion for judgment notwithstanding the verdict. The district court also correctly considered the county officials’ qualified immunity based summary judgment motion and did not err in denying the motion without prejudice. Additionally, the district court properly reasoned that the county officials are not entitled to summary judgment based on qualified immunity because a genuine issue of material fact exists concerning whether Sims’s statements impaired his ability to carry out his duties as a liaison for the Black Affairs Unit and the Department’s ability to provide its services to the county’s multi-ethnic community. Assuming the facts as Sims alleged them for the purposes of qualified immunity, the county officials’ actions violated clearly established law and they are not entitled to qualified immunity.

. No claim is made that Sims initiated the boycott.

. The district court ruling is not based on these claims.

. I would not be dissenting in this case if I could bring the majority to the realization that Sims, at the time of the sermon, was not in the "peace-making” role he formerly occupied. The record makes this absolutely clear.

. To emphasize this fact, Sims pointed out that while he coordinated the crisis response team, sometimes members of the African-American community did not perceive him as representing their interests. As an example, Sims points to a rally at a Miami Church where leaders of the African-American community met to oppose the appointment of a person as superintendent of the Dade County School Board. Sims notes that he and a member of the U.S. Department of Justice Community Relations Service, were attacked verbally at this meeting because of their positions. Members of the African-American community questioned, "Who the hell are you Uncle Toms representing here? If you are here as a representative of an agency, we want to ask you to leave. If you are here as concerned blacks, you can remain. Are you a pastor today or are you a member of the Community Relations Board?”