Case 8:03-cv-00451-EAK-EAJ Document 27 Filed 06/21/05 Page 1 of 10 PageID 191
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`UNITED STATES DISTRICT COURT
`nllDDLE DISTRICT OF FLORIDA
`T.ARIIPA DIVISION
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`LARRY CARPENTER
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`Plaintiff,
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`VS.
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`CITY OF TAMPA
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`Defendant.
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`CASE NO. 8103-CV-451-T-17-EAJ
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`This cause is before the Court on Defendant's Motion for Summary Judgment,
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`liled on December 22, 2005 (Dkt. 13), and response thereto. filed January 21, 2005 (Dkt.
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`ORDER
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`22).
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`BACKGROUND
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`Plaintiff, Larry Carpenter, was employed as a Traffic Maintenance Specialist in
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`the Public Works Department by the City of Tampa. Carpenter began work for the City
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`of Tampa on August 1, 1996, and worked until his employtnent was terminated on
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`September 11,2002. Carpenter was a ~iiember of the Sons of Confederatc Veterans. As
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`a result of his involven~ent in this organization, Plaintiff chose to display a Confederate
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`flag license plate on his Ford pickup truck.
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`While employed by Defendant City, Plaintiff displayed a Confederate flag license
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`plate on the front of his personal vehicle. The truck was never used in any official
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`capacity by the City of Tampa. Plaintiff always parked his ti-uck in Defendant's parking
`lot on the corner of 12th Street and Twiggs in the downtown Ta~npa area. This parking
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`lot is traditionally used by City of Tampa employees, temporary employees, and guests.
`Carpenter ncver personally received any complaints from his coworkers that his
`license plate was offensive; however, Transportation Department Head Elton Smith
`stated that a complaint was made to Plaintiff's supervisors about the license tag. On
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`January 24, 2002. Carpenter's immediate supervisor, Brian Eddings, verbally ordered the
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`Case 8:03-cv-00451-EAK-EAJ Document 27 Filed 06/21/05 Page 2 of 10 PageID 192
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`removal of the license plate from the front of Carpenter's vehicle, but Plaintiff refused to
`comply. On January 25,2002, Eddings asked Carpenter to sign a written account of his
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`verbal warning to remove the Confederate flag. The ~ilccting was not a formal hearing
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`behveen Eddings and Carpenter. Plaintiff was a member of the Amalgamated Transit
`Union (ATU), Local Union 1464, and asked for a representative of the union to be
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`present at the meeting. This request was denied and as a result, Plainti ff refi~sed to sign
`any docunientation.
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`On February 4, 2002, Plaintiff filed a written grievance protesting the order to
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`remove his license plate and objecting to a lack of union representation at the informal
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`mceting with Eddings. There is no written response to the grievance docunicnted in
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`evidence, but it is apparent that the order to remove his tag was not withdrawn. On
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`February 24. 2002. Plaintiff appealed the order demanding the removal of his license
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`plate. In rcsponse to this appeal, a grievance hearing was held on April 29,2002, and
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`Plaintiffs appeal was denied. The Department Head, Elton Smith, also wrote an official
`response to the grievance reflecting the outcome of the hearing.
`In the response, Smith
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`statcd that the City prohibits behavior found to be offensive or disruptive to olher
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`cniployees; however, tlic City of Tampa has no official written policy against the display
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`of flags, signs. license plates, or other affiliations on vehicles owned by enlployees.
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`Srnilh also told Carpenter, "If you wish to pursue your clai~n that the Confederate flag is
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`not an oft'cnsive synibol and that your rights are being infringed upon, then you sliould
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`continue to do so tlu-ough the grievance process. However, in the interim, you should do
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`as your supervisors have instructed and remove the flag."
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`Due to his failurc to comply will1 the order, Plaintiff was repeatedly disciplined.
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`011 May 11,2002. Plaintiff received a written reprimand. On June 11, 2002, he received
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`negative conments on his yearly employee evaluation, only for the refi~sal to remove the
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`tag. Between June and July 2002, Plaintiff was also suspended without pay on three
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`occasions, each for a longer length of time. Plaintiff informed his superiors, Brian
`Eddings and Buddy Stokes, that he would not seek redress through the standard
`grievance procedure. In a letter sent to his inmediate supervisors 011 July 7, 2002.
`Caqxnter stated, "1 lee1 that there will be no justice in the Grievance procedure as
`Employee relations is siding with Management." In a similar letter written July 22. 2002,
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`Case 8:03-cv-00451-EAK-EAJ Document 27 Filed 06/21/05 Page 3 of 10 PageID 193
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`Plaintiff wrote, "I do not concur with the last three Disciplinary Actions. Management
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`and Employee Relations have already discussed this and I feel tliat a grievance is not
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`necessaty as justice will not be sewed." Defendant terminated Plaintiffs employment
`on Septeniber 1 1, 2002.
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`After his termination, Plaintiff filed for unemployment benefits and was initially
`denied benefits. The Uneniploynient Compensation C l a i m Adjudicator Sound that the
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`Plaintiff was discharged for employee misconduct. At an appeal hearing, however, tlie
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`Uncniploynient Compensation Appeals Referee found that his refilsal to remove the
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`license plate was not nlisconduct and the City's order violated Plaintiffs First
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`Amendment rights. Plaintiff then received unemployment benefits. As a result of these
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`events. Plaintiff filed an action against the City of Tanlpa claiming both a violation of his
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`First Amendment rights under 42 U.S.C. tj 1983 and a violation of the Florida
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`Constitution Article 1 Section 4.
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`Defendant City now moves for a summary judgment clainiing that the City of
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`Tanipa does not have an official policy against the display of Confederate flags and that
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`the order to remove the license plate was not a violation of Plaintifrs First Amendment
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`right.
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`STANDARD OF REVIEW
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`A federal district court will grant a sulnlnaiy judgment if there are no genuinc
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`issues of material fact and the moving party is entitled to a judgment as a matter of law.
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`Fed. R. Civ. P. 56 (c). Issues of fact are genuine "only if a reasonable jury considering
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`the evidence presented could find for the non-moving party." Anderson v. Libertv Lobby
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`Inc., 477 U.S 242, 249 (1986). Material facts are those tliat would affect the outconie of
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`the trial. u. at 248.
`Rule 56 further requires the entry of summary judgment against a party who fails
`to establish the existence of an element essential to that party's case, and on which that
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`party will bear the burden of proof at trial. The moving party must state the basis for its
`niotion. and must identify the portions of tlie record tliat show tlie absence oSa genuine
`issue oS malerial fact.
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`The burden can be discharged by "showing.. .that tlicre is an absence of evidence
`to support the nonmoving party's case." Celotex Coru. v. Catrett, 477 U.S 3 17,323
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`Case 8:03-cv-00451-EAK-EAJ Document 27 Filed 06/21/05 Page 4 of 10 PageID 194
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`(1986). All doubt as to the existence of a genuine issue of material fact must be resolved
`against the nioving party. Hayclen v. First Nat'l Bank of Mt. Pleasant, 595 F. 2d 994,
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`996-997 (5th Cir. 1979).
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`DISCUSSION
`Plaintiff's display of a Confederate Flag license plate on the front of his personal
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`vehicle is speech protected under the First Amendment. To state a claini under 42 U.S.C.
`5 1983, a plaintiff must allege: (I) that a right secured by the Constilution or laws of the
`United States was infringed and (2) that the violation was conimitted by a person acting
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`under the color of state law. Focus on the Familv v. Pinellas Suncoast Transit Authority,
`344 F. 3d 1263, 1276-1277 (1 1 th Cir. 2003). Carpenter's complaint clearly meets these
`requirements as the relevant "speech" is clearly protected under the First Amendment
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`and the violation was allegedly committed by thc City of Tampa.
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`The City of Tampa argucs that display of a Confederate flag on Carpenter's
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`license plate was not protected speech. The Eleventh Circuit has established a four part
`test to detemiine whether a city has discharged a public crnployee in retaliation for
`protected speccli. Morgan v. Ford, 6 F.3d 750, 754 ( 1 It11 Cis. 1993); see also Rice
`Lamar v. City of Fort Lauderdale, 232 F.3d 836, 841 (1 1 th Cir. 2000); Fikes v. Citv of
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`Daphne, 79 F.3d 1079, 1084- 1085 (1 1 th Cir. 1996). According to the test, the court
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`must: 1) determine if the speech addresses a matter of public conceni; 2) weigh the
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`employee's First Amendment rights against the government's interest in maintaining a
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`productivc working cnvironment; 3) decide whether the speech played a critical role in
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`the government's decision to ternlinate the employee; and 4) if the government did use
`the employee's speech as a reason to discharge the employee, the government then has
`the burden to prove by the preponderance of the evidence that it would havc been
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`reached the samc decision in the absence of protected conduct. M o r ~ a n , 6 F.3d at 754.
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`The court must first decide whcther the speech constituted a matter of public
`conceni. Id. In Connick v. Myers, 461 U.S. 138 (1983) the Supreme Court held that
`speech addresses a matter of public concern when it can be "fairly considered as relating
`to any ~nalter of political, social, or other conccrn to the community." 1<1. at 146. The
`display of a Confederate flag was a vivid symbol expressing a political ~\iid/or social idea
`of Carpenter. Further, in Dixon v. Coburg Dairv. Inc. 330 F. 3d 250 (4th Cis. 2003)
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`Case 8:03-cv-00451-EAK-EAJ Document 27 Filed 06/21/05 Page 5 of 10 PageID 195
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`orl otlret.gi.orr~~cls by 2004 W.L 11 52827 (4th Cis. May 25, 2005) (en banc). the
`~ l ~ c t ~ t e i l
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`Fourth Circuit lieltl that "the act of displaying a Confedcratc flag is plainly within the
`purview of tlic First Amcndment." Id. at 262. The court went on to say that a pcrson
`had ''a constitutionally protected right to fly the Confederatc battle flag from his home,
`car, or truck." Id. Thus, Carpenter's display of a Confederate flag constiti~tcd a matter of
`public concern and was clearly protccted by the First A~iiendment.
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`Second, the court must weigh the employee's First Amendment rights against the
`interest of the city, as an employer. in promoting a conducive the work place. Mornan. 6
`F. 3d at 754. In performing this balancing test. a court must consider: (1) whether the
`speech at issue impeded the government's ability to perform its duties effectively; (2) the
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`manner, time, and place of the speech; and (3) the context in which the speech was made.
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`Id. The City of Tampa has an interest in preventing disruptive material from permeating
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`the work place environment. However, the City of Tampa has not proved that the display
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`of a Confederate flag on Carpenter's liccnse plate caused such a disruption to justify the
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`order to remove his tag. During his entire employment for the City of Taliipa, Plaintiff
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`displayed a Confederate flag on the license plate of his truck. Until this incident, a
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`complaint was ncvcr made about the flag. The display of the flag did not impcde
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`Carpenter's own work as he still received excellent marks on his e~nployee evaluation
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`sheet. Further, the time, manner, and place of speech were not disruptive to the \vorking
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`environment. Carpenter displayed the flag on his personal vehicle, which remained
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`parked in the city lot for the duration of the work day. He did not speak about the flag or
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`what he thought it represented inside the work place or during work hours. Finally, the
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`speech was made in the context of purely personal expression and was not overtly
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`harmful to the City of Tampa's working environment.
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`Third, the court must determine whether the speech in question played a
`substantial role in the City's decision to discharge the employee. Id. In this case, the
`City of Tampa cited no other reason for terminating Carpenter's employment other than
`the display of the Confederatc flag on his pickup truck. In all other areas regarding his
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`employment, Carpcntcr was an exemplary employee, which is proven by the high marks
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`lie received on his cmployce evaluation shect. The only causc stated for the termination
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`oCCarpentcr is his insubordination in refi~sing to remove the Confedcratc flag license
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`Case 8:03-cv-00451-EAK-EAJ Document 27 Filed 06/21/05 Page 6 of 10 PageID 196
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`plate or parking in another area. Thus, his speech was the primary, if not the only. reason
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`for firing Carpenter.
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`The last requirement of the Tot~r part test requires that if the employce can show
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`that speech was a substantial motivating factor in the decision to teminate, the burden
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`falls on the city to prove that it would still have reached the same decision even in the
`absence of protected conduct. Id. The City of Tanlpa has not met this burden. The City
`provides no other reason for the termination of Carpenter unrelated to the display of his
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`license tag. Carpenter's employl~cnt evaluation docs not reflect any cause for which he
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`should have been fired. Further, the testimony of Carpenter's immediate supervisor
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`suggests that Carpenter was a loyal and obedient employee. The City of Tampa had no
`other reason to fire Carpenter other than his refusal to remove his license plate. If this
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`incident had not occurred, Carpenter would not have bccn fired.
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`The display of the Confederate flag on Carpenter's personal vehicle is a protected
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`expression of speech for which he was wronghlly ternlinated. However, "a municipality
`cannot be held liable under $ 1983 on a I-esponderrt srrperior theory." Monell v. Dept. of
`Social Services, 436 U.S. 658,691 (1978). A local govcrnment may not be sued under 5
`1983 for an injury inflicted solely by its employees. Id. Only when an illjury occurs due
`to an execution of govemnxnt policy will the local govenment as an entity be
`responsible. Id. at 694. In Sewell v. Town of Lake Hamilton, 117 F. 3d 488, the
`Eleventh Circuit defined a policy as "a decision that is ofijcially adopted by the
`municipality," and a custom as "a practice so well settled and permanent that it takes on
`the force of law." Id. at 489. The official policy requirement distinguishes acts of the
`municipality from acts of municipal employees, and clearly limits nliinicipal liability to
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`actions for which the municipality is actually responsible. Pembaur v. Citv of Cincinnati,
`475 U.S. 469,479 (1986).
`The City of Tampa docs not have an official policy banning the display of
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`Confederate flags in city parking lots. Plaintiff testified and produced documentation
`that other unidentified city employees also parked in the city lot and displayed
`Confederate flags. These employees were not reprimanded by the City of Tampa nor
`instructed to remove the articles iiom their vehicles. In Tact, Plaintiff suggested as a
`remedy that the City of Tampa refuse to allow all synlbolic representation on
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`Case 8:03-cv-00451-EAK-EAJ Document 27 Filed 06/21/05 Page 7 of 10 PageID 197
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`automobiles parked in the city lot. Such evidence suggests that the City of Tampa does
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`not have an official policy of banning Confederate signs and symbols fro111 autoniobiles.
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`The Eleventh Circuit "has interpreted Monell's policy or custom requiremcnt to
`preclude 8 1983 municipal liabi lity for a subordinate official's decisions when the final
`policymaker delegates decisionmaking discretion to the subordinate, but retains the
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`power to review the exercise of that discretion." Scala v. Citv of Winter Park, 116 F. 3d
`1396. 1399 (1 1th Cir. 1997); see also Quinn v. Monroe County, 330 F. 3d 1320. 1325-
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`I326 (1 1 th Cir. 2003) (holding that because the decision to tennillate an employcc was
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`subject to meaningful administrative review by the Career Service Council, the County
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`Adniinistrator was not the official policy maker.) Because linal policymaking authority
`does not vest in an official whose decisions are subjecl to n~eaningful review, w, 116
`F.3d at 1401 the summary judgment will only be denied if Carpenter can show that his
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`termination was either made by official policymakers or it was not subject to ~neaningful
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`rewe!\.
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`The document terniinating Carpenter's employment was signed by his immediate
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`supervisor, Brian Ecldings, who works as the Service Crew Supervisor. Eddings clearly
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`is not an official policy niakcr of the City of Tampa. In his deposition, Eddings stated
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`that Scott Shaw gave the directive for Eddings to discipline Carpenter. Eddings claimed
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`that eventually Shaw ordered hi111 to teimii~iate his employment. Scott Shaw works as a
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`Traffic Operations Chief for the City of Tarnpa. He is responsible for supervising five
`operating arms of the city and oversees approximately a hundred city employees. In his
`testimony, Shaw stated that he received support and guidance for his decision to fire
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`Carpenter from the Dcpartmcnt of Public Works Administration and other nlembcrs of
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`the City of Tampa Employee Relations. Elton Smith, the Depai-tment Head of
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`Transportation, signed all disciplinary action and approved the ternlination. Shaw.
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`Eddings, and Smith are primarily responsible for the termination of Carpenter's
`employment, as each had the authority to choose not to fire him. Although these men
`were the official decision makers, they were clearly not final policymakers.
`The issue then turns on whether Carpenter's termination was subject to
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`meaningful review. There is no dispute of fact that Carpenter's termination was clearly
`subject to review. The ATU and the City of Tampa developed an agreement outlining
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`Case 8:03-cv-00451-EAK-EAJ Document 27 Filed 06/21/05 Page 8 of 10 PageID 198
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`the procedures by which employment disputes would be resolved. Article 6.4 of the
`agreement stales the official grievance procedure. At step one of the procedures an
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`employee files a grievance with his immediate supervisor, which is to bc answered in
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`five days after receipt of the written grievance. If the employee is not satisfied with the
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`response, he can present the grievance to the Department Head who shall meet with the
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`en~ployee and a union representative at a hearing, iinless the meeting is waived by the
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`employee. After the hearing, the deparlnient head must write a response to the grievance.
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`If the employee is still not satisfied, he can present another g-ievance to the Director of
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`Administration who again will conduct a hearing and write a response. If employee
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`dissatisfaction persists beyond the grievance process, the dispute can be referred to
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`binding arbitration. Further, any tei-mination of a city employee is subject to review by
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`the Civil Service Board. Thus, the City of Tampa has an established procedure to review
`the decisions of Brian Eddings, Scott Shaw, and the members of City of Tampa
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`Employee Relations and Public Works Administration.
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`Although Carpenter adniits that his termination was subject to review, he claims
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`that the review was not n~eaningfi~l. Caspenter argues that the City did not follow its own
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`official procedures for two primary reasons: failing to provide union representation at the
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`meeting between Eddings and Carpenter. and failing to ensure that members of employee
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`relations were present at the disciplinary hearing.
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`Carpenter cites the denial of his request for union representation at the initial
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`infoniial meeting between Carpenter and Eddings as evidence of the City's deviance
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`from established disciplinary guidelines. In the written response to Carpenter's
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`grievance, Smith infom~ed Carpenter that Ernployce Relations would grant union
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`representation if a fornlal notice of disciplinary action or a grievance is involved, and the
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`illlion representative received at least 24 hours noticc of the scheduled hearing. The
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`meeting between Carpenter and Brian Eddings in which Carpenter claims he was denied
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`union representation was not a formal hearing. Since it did not involve official
`disciplinary action or a grievance, union representation is not required or even expected.
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`The ATU should not be expected to provide a union representative for every infornlal
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`meeting that a supervisor has with an employee regarding employee co~iduct.
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`Case 8:03-cv-00451-EAK-EAJ Document 27 Filed 06/21/05 Page 9 of 10 PageID 199
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`Carpenter also testified that the members of Enlployee Relations should have
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`appeared at the formal hearing conducted April 29,2002, to discuss his disciplinary
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`action because of the "open door policy" that the members espoused. He contends that
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`their absence reflects the City's iunwillingness to con~ply with their own disciplinary
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`procedures. However, there is no requirenlent that the members of Employee Relations
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`be present at the hearing. The second step of the standard grievance procedures require
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`only that the Department Director, the employee, and a union representative conduct a
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`hearing concerning the grievance.
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`From the evidence presented, Carpenter filed a single grievance with the City of
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`Tainpa complaining of the order to remove his license plate. It appears that Carpenter's
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`grievance bypassed the first step of the procedure and was elevated to a level two review.
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`Department I-Iead Elton Smith reviewed the grievance and a hearing was conducted at
`which the ATU President was present. Carpenter was dissatisfied with union
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`representation and the outcome of the hearing in which he was ordered to comply with
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`his supervisor's instruction to remove the license plate.
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`Carpenter argues that the City of Tampa failed to follow the procedures and that
`upper officials simply "i-ubber stamped" the decision to terminate his employment.
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`Carpenter contends that any review by the City of Tampa officials would not have been
`nleaningful because Employee Relations, senior management, and the ATU would
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`corroborate and never fairly evaluate the reasons behind his tennination. Due to his
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`feelings that the City's review policy was inadequate, Carpenter abandoned the
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`procedure. After the step two disciplinary hearing and denial of his grievance, Ca~yenter
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`could have filed additional grievances with the Director of Administration. Further,
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`Carpenter could have sought redress tluoi~gh arbitration or he could of have sought
`review by the Civil Service Board. I-Iowever, because he believed seelting such relief
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`was "pointless." Carpenter did not bother with the standard procedures.
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`Carpenter was clearly dissatisfied with the grievance process and, according to
`of the State of Florida, 457 U.S. 496
`the Supreme Court in Patsv v. Board of Regents
`(1982), he is not required to exhaust the city review process before filing a $ 1983 claim
`in federal court. Id. at 502. However, unless Carpenter can provide some evidence that
`the adininistrative review was not meaningful, sunmaiy judgment should be granted.
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`Standing alone. Carpenter's own decision not to use the review process is not enough to
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`prove that thc review would have been inadequate. 111 Ksclner v. Chemical Const. Cons,
`456 U.S. 461 (1982), the Supreme Court found that an employee's choice not use the
`state remedies does not mean that they are inadequate. u. at 485. Carpenter has not
`offered any other evidence to suggest that the review process would not have been
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`meaningful other than his failure to use it. In the absence of silch evidence, this Court
`must grant the summary judg~nent.
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`Carpenter has no evidence to show a genuine issue of material fact that the City
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`of Tampa has an established policy against the display of Confederatc flags. The
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`officials who terminated Carpenter's employnlcnt were not official policymakers and
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`their decisions were subject to meaningfid review. In the absence of evidence tending to
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`show the establishment of a policy or custom, the motion for summary judgment should
`be gsanted.
`Having dismissed the claim arising i~nder 42 U.S.C.
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`1983, this Court declines to
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`extend supplcn~ental jurisdiction established in 28 U.S.C. $ 1367 over the accoi~lpailyillg
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`claim under the Florida Constitution Article 1 Section 4. The state law claim is
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`dismissed without prejudice for re-filing in state court.
`ORDERED that the Defendant's Motion for Suinmary Judgment (Dkt. 13) be
`GRANTED, the Clerk of Coui-t being DIRFK'TED to enter judgment for the Defendant
`and close the case.
`DONE and ORDERED in Chambers, in Tampa. Florida, on this 21st day of
`June, 2005.
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`Copies to: All parties and counsel ofreco