Case 9:21-cv-80469-RKA Document 151 Entered on FLSD Docket 09/15/2023 Page 1 of 53
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` UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
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`CASE NO. 21-cv-80469-ALTMAN/Matthewman
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`NICOLE OFSOWITZ LUCAS,
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`Plaintiff,
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`v.
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`CITY OF DELRAY BEACH, a Florida
`Municipal Corporation,
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`Defendant.
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`________________________________/
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`ORDER ON SUMMARY JUDGMENT
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`On June 2, 2020, our Plaintiff, Nicole Lucas, an officer with the City of Delray Beach Police
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`Department published an expletive-laden rant about Black Lives Matter on her Facebook page and
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`invited anyone who disagreed with her to “unfriend” her. After several members of the public brought
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`Lucas’s angry post to the attention of the Police Department, Javaro Sims (the City’s Police Chief)
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`initiated disciplinary proceedings against her—at the end of which the Police Department issued her
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`a written reprimand. Lucas now claims that this reprimand cost her a chance to serve as an undercover
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`agent for the DEA.
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`Under an agreement the Police Department had signed with the DEA, the Department could
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`recommend one of its officers for a detail assignment on a DEA task force. Of course, the DEA—
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`not the Police Department—had the final say over any applicant. When she wrote the incendiary post
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`at issue here, Lucas was being considered for that special assignment. But, after it asked for a copy of
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`Lucas’s internal-affairs file, the DEA passed her over. Seeing the Police Department’s hand in this
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`decision, Lucas sued our Defendant—the City of Delray Beach—alleging one count of First
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`Amendment retaliation under 42 U.S.C. § 1983 (Count I) and one count of sex discrimination, also
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`under § 1983 (Count II). After we denied the City’s motion to dismiss, the parties engaged in
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`substantial discovery and have now asked us to resolve this case at summary judgment. While Lucas
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`has moved for summary judgment only on her First Amendment claim, see generally Plaintiff’s Rule 56
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`Motion for Partial Summary Judgment (“Lucas’s MSJ”) [ECF No. 96], the City asks for judgment on
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`both counts, see generally Defendant’s Motion for Summary Judgment (“City’s MSJ”) [ECF No. 97].
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`Having carefully reviewed the parties’ briefs,1 the record, and the governing law, we now GRANT
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`the City’s MSJ and DENY Lucas’s MSJ.
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`THE FACTS2
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`By June of 2020, Nicole Ofsowitz Lucas had been “an undercover narcotics agent” in the
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`Delray Beach Police Department’s “Vice, Intelligence[,] and Narcotics Unit since 2017 or 2018[.]”
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`Plaintiff’s Local Rule 56.1(a) Statement of Material Facts in Support of Motion for Summary Judgment
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`(“Lucas’s SOF”) [ECF No. 95] ¶ 2 (citing Dec. 15, 2021 Deposition of Nicole Ofsowitz Lucas (“Lucas
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`Dec. Dep.”) [ECF No. 98-3] at 22:16–18); see also Defendant’s Response to Plaintiff’s Statement of
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`Material Facts (“City’s Response SOF”) [ECF No. 101] ¶ 2 (“Undisputed.”). In those days, the City
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`had a standing agreement with the DEA, under which the City would “detail one experienced officer
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`1 Both motions are fully briefed and ripe for adjudication. See Defendant’s Response to the Plaintiff’s
`Motion for Summary Judgment (“City’s Response MSJ”) [ECF No. 100]; Plaintiff’s Response to the
`Defendant’s Motion for Summary Judgment (“Lucas’s Response MSJ”) [ECF No. 108]; Plaintiff’s
`Reply to the Defendant’s Response re: Plaintiff’s Motion for Summary Judgment (“Lucas’s Reply
`MSJ”) [ECF No. 115]; Defendant’s Reply in Support of its Motion for Summary Judgment (“City’s
`Reply SOF”) [ECF No. 122].
`2 “The facts are described in the light most favorable to the non-moving party.” Plott v. NCL Am.,
`LLC, 786 F. App’x 199, 201 (11th Cir. 2019); see also Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir.
`2002) (“[F]or summary judgment purposes, our analysis must begin with a description of the facts in
`the light most favorable to the [non-movant].”). We accept these facts for summary-judgment
`purposes only and recognize that “[t]hey may not be the actual facts that could be established through
`live testimony at trial.” Snac Lite, LLC v. Nuts ‘N More, LLC, 2016 WL 6778268, at *1 n.1 (N.D. Ala.
`Nov. 16, 2016); see also Cox Adm’r US Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th Cir. 1994)
`(“[W]hat we state as ‘facts’ in this opinion for purposes of reviewing the rulings on the summary
`judgment motion may not be the actual facts. They are, however, the facts for present purposes[.]”
`(cleaned up)).
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`2
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`[from the Police Department] to the DEA West Palm Beach Task Force for minimum two-year
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`periods, during which time the officer is [ ] under the direct supervision and control of DEA
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`supervisory personnel assigned to Task Force.” City’s Statement of Material Facts (“City’s SOF”)
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`[ECF No. 98] ¶ 65 (citing the Program-Funded State and Local Task Force Agreement [ECF No. 98-
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`19] at 1); see also Plaintiff’s Amended Response to the Defendant’s Statement of Material Facts in
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`Support of the Motion for Summary Judgment (“Lucas’s Response SOF”) [ECF No. 105] ¶ 65 (“Not
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`disputed, but not relevant to summary judgment.”).3 But the decision to accept an officer into the
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`Task Force has always been reserved to the “DEA’s discretion.” City’s SOF ¶ 66; see also Lucas’s SOF
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`¶ 66 (“Not disputed[.]”).
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`At the same time, the City is “responsible for establishing the salary and benefits, including
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`overtime, of the officers assigned to the Task Force[.]” City’s SOF ¶ 67; see also Lucas’s SOF ¶ 67
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`(“Not Disputed[.]”). And the City “does not change the salary or benefits of officers detailed to the
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`Task Force . . . and would not have changed the salary or benefits of Lucas had she been detailed to
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`the Task Force.” City’s SOF ¶ 68; see also Lucas’s SOF ¶ 68 (“Not Disputed[.]”). The Task Force also
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`“doesn’t guarantee an officer any particular amount of overtime pay, including more overtime pay
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`than that which the officer would ordinarily receive while not on the Task Force.” City’s SOF ¶ 69;
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`3 Most of Lucas’s responses to the City’ SOF repeat this bizarre phrase: “Not disputed, but not relevant
`to summary judgment.” Lucas’s Response SOF ¶ 65 (emphasis added). Since Lucas’s legal conclusion that
`a fact is “not relevant to summary judgment” does nothing to dispute the asserted fact, we’ll accept
`these facts as established. See FED. R. CIV. P. 56(c)(1) (“A party asserting that a fact cannot be or is
`genuinely disputed must support the assertion by: citing to particular parts of materials in the record, including
`depositions, documents, electronically stored information . . . [.]” (emphasis added)); see also S.D. FLA.
`L.R. 56.1(b)(2)(C) (“If an opponent’s Statement of Material Facts disputes a fact in the movant’s
`Statement of Material Facts, then the evidentiary citations supporting the opponent’s position must
`be limited to evidence specific to that particular dispute.”). And, since Lucas’s caveat (“but not relevant
`to summary judgment”) isn’t at all relevant to the question of whether a properly asserted fact has
`been genuinely disputed, we’ll omit this inapposite caveat going forward.
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`3
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`see also Lucas’s SOF ¶ 69 (“See response to ¶ 68, which Ms. Lucas adopts in response to this
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`paragraph.”).4
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`On June 2, 2020, Lucas—still a police officer with Delray Beach and hoping to join the DEA
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`Task Force—posted the following statement on her private Facebook page:
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`Fuck everyone who says black lives matter. I can’t take your fucking bullshit anymore.
`ALL LIVES MATTER! BLM encourages racial divide, violence and hate. Look at all
`the officers killed and injured for trying to protect people & property they don’t even
`know. Officers are being killed every fucking day & now even more so and no one
`riots or wears shirts that say POLICE LIVES MATTER. If you don’t agree with my
`feelings PLEASE do not comment. If you don’t like me now then just unfriend me.
`But know ALL LIVES MATTER TO ME, AND I GO ABOVE AND BEYOND
`TO HELP ALL PEOPLE.
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`City’s SOF ¶ 1 (quoting Facebook Post [ECF No. 98-1] at 1 (errors in original)); see also Lucas’s SOF
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`¶ 1 (“Plaintiff posted the statement that the City of Delray Beach quotes in ¶ 1.”).
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`Word of Lucas’s post quickly spread. Indeed, just one day after the post was published, Javaro
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`Sims, the Chief of the Police Department, heard about it twice. First, “on June 3, 2020,” Chief Sims
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`“received a copy of Lucas’[s] Facebook post in a text message from Sharon Edmonds.” City’s SOF ¶
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`7; see also Lucas’s Response SOF ¶ 7 (“Admitted.”). Edmonds, who “became friends with [Lucas]
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`approximately 18 years ago when Lucas was a probation officer,” City’s SOF ¶ 10; see also Lucas’s
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`Response SOF ¶ 10 (“Admitted[.]”), was also “Facebook friends with Lucas,” City’s SOF ¶ 11; see also
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`4 Lucas’s response to paragraph 68 doesn’t adequately dispute any material fact. That response, in full,
`says only this: “Not disputed, but not relevant to summary judgment. However, historically Delray
`Beach Police Department officers assigned to the DEA task force earn substantial overtime during
`that assignment.” Lucas’s Response SOF ¶ 68. This may or may not have been a relevant fact if it had
`been properly supported. But it wasn’t. As our quotation makes plain, Lucas has chosen, in this
`paragraph, not to cite a single piece of evidence at all. And, as we’ve said, a party must rely on evidence
`(not argument or supposition) to survive summary judgment. See FED. R. CIV. P. 56(c)(1) (“A party
`asserting that a fact cannot be or is genuinely disputed must support the assertion by: citing to particular
`parts of materials in the record, including depositions, documents, electronically stored information . . . [.]”
`(emphasis added)).
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`4
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`Lucas’s Response SOF ¶ 11 (“Admitted.”). “Edmonds later unfriended Lucas” on Facebook. City’s
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`SOF ¶ 12; see also Lucas’s Response SOF ¶ 12 (“Admitted[.]”).
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`Second, later that same day, at a “We Can’t Breathe” rally “concerning the murder of George
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`Floyd and police reform,” City’s SOF ¶ 13; see also Lucas’s Response SOF ¶ 13 (“Admitted[.]”), “an
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`anonymous individual approached Chief Sims and informed him of Lucas’[s] Facebook post, showing
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`it to him on a cell phone,” City’s SOF ¶ 17; see also Lucas’s Response SOF ¶ 17 (“Plaintiff objects to
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`¶ 17 as inadmissible hearsay.” (citing Hammond v. Hall, 586 F.3d 1289, 1319 (11th Cir. 2009)
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`(“Anonymous tips are not admissible into evidence to prove the truth of the matter stated in the
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`tip.”))).5
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`After reading the Facebook post, Chief Sims worried that it “was a violation of [the Police
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`Department’s] General Order 1917,” Videoconference Deposition of Chief Javaro Sims (“Sims
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`Dep.”) [ECF No. 98-5] at 40:25–41:12, which prohibits employees from posting “racist,
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`prejudice [sic], offensive, homophobic, sexist comments or hate speech,” Delray Beach Police
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`Department General Order 1917 (“General Order 1917”) [ECF No. 98-14] at 3; see also City’s SOF ¶
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`18 (“Upon seeing Lucas’[s] Facebook post, Sims concluded it likely violated one or more Department
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`5 Again, Lucas fails to dispute this point properly. The City, after all, isn’t offering this quote for the
`truth of the matter asserted. It’s simply using it (1) to highlight the state of mind of the individual in
`the crowd and (2) to explain how Chief Sims came to see the post for the second time. It thus isn’t
`hearsay and is admissible at summary judgment. See United States v. Valdes-Fiallo, 213 F. App’x 957, 960
`(11th Cir. 2007) (“Evidence that is not offered to prove the truth of the matter asserted is not hearsay.”
`(citing FED. R. EVID. 801(c)); see also Wills v. Walmart Assocs., Inc., 592 F. Supp. 3d 1203, 1219 (S.D. Fla.
`2022) (Altman, J.) (“In a half-hearted attempt to conjure up a genuine dispute, Wills contends that the
`anonymous tip is inadmissible hearsay . . . . First, the employee’s anonymous complaint isn’t hearsay.
`Hearsay is ‘a statement that: (1) the declarant does not make while testifying at the current trial or
`hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.’”
`(first quoting FED. R. EVID. 801(c); and then citing Wright v. Farouk Sys., Inc., 701 F.3d 907, 910 (11th
`Cir. 2012) (“Hearsay is an out-of-court statement offered to prove the truth of the matter asserted in
`the statement . . . and is generally not admissible except as provided in the Rules of Evidence or a
`federal statute[.]”))).
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`5
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`policies.”); Lucas’s Response SOF ¶ 18 (“Not Disputed.”). Chief Sims was also concerned that the
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`post was “contrary to the Police Department’s mission statement and values, and he perceived it as
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`inflammatory, offensive, possibly racist, and likely to contribute to a hostile work environment.” City’s
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`SOF ¶ 19; see also Lucas’s Response SOF ¶ 19 (“Not disputed[.]”). Finally, Sims thought that “Lucas’[s]
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`post could cause a ruckus and that it could undermine the Police Department’s efforts to maintain
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`trust and legitimacy in the eyes of the public.” City’s SOF ¶ 20; see also Lucas’s Response SOF ¶ 20
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`(“Not disputed[.]”).6 Chief Sims therefore “shared the post with Assistant Chief Sapino and Lieutenant
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`Scott Privitera (who at the time was in charge of Internal Affairs).” City’s SOF ¶ 21; see also Lucas’s
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`Response SOF ¶ 21 (“Not disputed[.]”).
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`Both officers found Lucas’s Facebook post problematic. “Lieutenant Privitera found the post
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`‘derogatory’ and concerning, given the climate at the time.” City’s SOF ¶ 23 (quoting Deposition of
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`Scott M. Privitera (“Privitera Dep.”) [ECF No. 98-8] at 13:1–3); see also Lucas’s Response SOF ¶ 23
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`(“Not disputed[.]”). As he put it, “‘I think the opening line says it all. When she says “Fuck everyone
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`who says black lives matter,” I think that lacks sincerity. I think that’s, in a sense, not a very well-
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`thought-out thing to say, given the time when the officer was just charged with murder of George
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`6 Lucas’s responses to paragraphs 19 and 20 of the City’s SOF do nothing at all. Both follow a familiar
`pattern: “Not disputed,” paragraph 19 says, “but not relevant to summary judgment, i.e., it does not
`establish that it was reasonably probable to feel that Ms. Lucas’s private Facebook page would be
`reasonably likely to ‘contribute to a hostile work environment.’” Paragraph 20 is very similar: “Not
`disputed, but not relevant to summary judgment, i.e., it does not establish that it was reasonably
`probable to perceive Ms. Lucas’s private Facebook page would be reasonably likely to ‘cause a
`ruckus[.]’” Again, however, she doesn’t challenge any of these factual assertions with evidence of her
`own. So, while she may be right that the post wasn’t offensive, racist, homophobic, etc., she’s done
`nothing to dispute the City’s proffered fact, which is that Chief Sims thought the post might interfere
`with one or another City policy or objective. See FED. R. CIV. P. 56(c)(1) (“A party asserting that a fact
`cannot be or is genuinely disputed must support the assertion by: citing to particular parts of materials in
`the record, including depositions, documents, electronically stored information . . . [.]” (emphasis
`added)); see also S.D. FLA. L.R. 56.1(b)(2)(C) (“If an opponent’s Statement of Material Facts disputes a
`fact in the movant’s Statement of Material Facts, then the evidentiary citations supporting the
`opponent’s position must be limited to evidence specific to that particular dispute.”).
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`6
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`Floyd, the entire Midwest was up in arms over that.’” City’s SOF ¶ 23 (quoting Privitera Dep. at 37:15–
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`21); see also Lucas’s Response SOF ¶ 23 (“Not disputed[.]”). And Assistant Chief Sapino worried that
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`Lucas wouldn’t make “‘sound judgment decisions’” with respect to “‘decisions that can ultimately end
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`up taking someone’s freedom or life, and if she can’t take this bullshit anymore, that shows me there’s
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`an issue with her mental clarity.’” City’s SOF ¶ 26 (quoting Deposition of Gene D. Sapino (“Sapino
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`Dep.”) [ECF No. 98-10] at 27:3–11, 45:11–13); see also Lucas’s Response SOF ¶ 26 (“Not disputed[.]”).
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`Agreeing that Lucas’s post might violate the Police Department’s policies, Chief Sims
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`“instructed Lieutenant Privitera and Sergeant Ferreri to place Agent [Lucas] on administrative leave”
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`pending an internal investigation. City’s SOF ¶ 30 (“Chief Sims instructed Lieutenant Privitera and
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`Sergeant Ferreri to place Lucas on administrative leave pending an internal investigation.”); see also
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`Lucas’s Response SOF ¶ 30 (“Not Disputed[.]”). Pursuant to “the Internal Affairs policy,” Lieutenant
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`Privitera and Sergeant Ferreri “went to Lucas’[s] residence and notified Lucas [that] she was placed on
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`paid administrative leave [ ] and took away her badge and gun[.]” City’s SOF ¶ 31; see also Lucas’s
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`Response SOF ¶ 31 (“Not disputed[.]”). Notably, though, Lucas “continued to receive her full salary
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`and benefits” during the pendency of the investigation. City’s SOF ¶ 33; see also Lucas’s Response SOF
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`¶ 33 (“Not disputed[.]”).
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`At the end of the investigation, “Lieutenant Anthony Martinez and Captain Mager
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`recommended the discipline of a written reprimand.” City’s SOF ¶ 41; see also Lucas’s Response SOF
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`¶ 41 (“Not disputed[.]”). The written reprimand “was the only discipline the City imposed upon Lucas
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`based on the Facebook post.” City’s SOF ¶ 59; see also Lucas’s Response SOF ¶ 59 (“See response to
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`¶ 56, which Ms. Lucas adopts in response to this paragraph.”).7 The City never “demote[d] or
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`7 Again, paragraph 56 says nothing salient: “Not disputed,” Lucas writes here, “but not relevant to
`summary judgment other than to establish that Chief Sims issued Ms. Lucas a written warning because
`of her private Facebook post[.]” Lucas’s Response SOF ¶ 56 (emphasis in original).
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`7
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`terminate[d] Lucas.” City’s SOF ¶ 61; see also Lucas’s Response SOF ¶ 61 (“Not disputed[.]”). It also
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`never “reduce[d] Lucas’[s] salary or benefits or any other term or conditions of her employment.”
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`City’s SOF ¶ 60; see also Lucas’s Response SOF ¶ 60 (“Not disputed[.]”).
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`While the investigation was pending, two things were going on in the background. One, Lucas’s
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`Facebook post was becoming “well known throughout the police department,” City’s SOF ¶ 39; see
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`also Lucas’s Response SOF ¶ 39 (“Not disputed[.]”), and among the public generally, see City’s SOF ¶
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`40 (Privitera testifying that, “‘after a newspaper article came out,’” he “‘got quite a few calls’” about
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`Lucas’s Facebook post (quoting Privitera Dep. at 45:19–22)); see also Lucas’s Response SOF ¶ 40
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`(“Objection to anonymous hearsay.”).8 Two, as we’ve discussed, “Lucas was under consideration for a
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`position with the DEA West Palm Beach Task Force.” City’s SOF ¶ 62; see also Lucas’s Response SOF
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`¶ 62 (“Not disputed[.]”).
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`On October 8, 2020, “nine days after Lucas was served with her written reprimand—Captain
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`Russ Mager wrote a memorandum to Assistant Chief Sapino, recommending Lucas be selected for
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`the DEA Task Force.” City’s SOF ¶ 70 (citing Delray Beach Police Department Memorandum
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`(“Recommendation”) [ECF No. 98-20] at 1); see also Lucas’s Response SOF ¶ 70 (“Not disputed, but
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`her nomination had been anticipated[.]”). Both Chief Sims and Assistant Chief Sapino “signed and
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`approved Captain Mager’s” recommendation “that Lucas be selected for the DEA task force.” City’s
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`SOF ¶ 71; see also Lucas’s Response SOF ¶ 71 (“See response to ¶ 70, which Ms. Lucas adopts in
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`response to this paragraph.”).
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`But, despite the Police Department’s recommendation, Lucas didn’t get the job. On
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`November 30, 2020, DEA Agent Ian McVane “e-mailed Lieutenant Anthony Martinez, notifying him
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`8 Again, these comments from members of the public aren’t inadmissible hearsay because they’re not
`offered to prove the truth of the matter asserted; they’re only meant to show the state of mind of
`people in the community.
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`8
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`that ‘[a]fter a thorough review of the Internal Affairs investigation for Agent Nicole Lucas, the DEA
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`. . . would like to respectively [sic] pursue another . . . candidate for the available Task Force Officer
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`position.’” City’s SOF ¶ 77; see also Lucas’s SOF ¶ 77 (“Not disputed[.]”). About three weeks before
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`he relayed this message, Agent McVane had requested “copies of documents constituting Lucas’[s]
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`Internal Affairs investigation file,” and Lieutenant Privitera had “e-mailed him” those copies. City’s
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`SOF ¶ 75; see also Lucas’s Response SOF ¶ 75 (“Not disputed[.]”). Notably, “[n]either Chief Sims nor
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`Sapino” ever “notified the DEA about Lucas’[s] Internal Affairs file.” City’s SOF ¶ 73; see also Lucas’s
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`SOF ¶ 73 (“Not disputed[.]”). And there’s no dispute that it was “[t]he DEA, not the City,” who
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`“made the decision not to select Lucas for the Task Force.” City’s SOF ¶ 79; see also Lucas’s SOF ¶ 79
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`(“Not disputed[.]”). Ultimately, the DEA “selected Officer Barry Kopplin for the Task Force, the only
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`other officer in the VIN Unit who was qualified and who showed interest in the position.” City’s SOF
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`¶ 81; see also Lucas’s Response SOF ¶ 81 (“Not disputed[.]”).
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`THE LAW
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`Summary judgment is appropriate when “there is no genuine dispute as to any material fact
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`and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). “By its very terms,
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`this standard provides that the mere existence of some alleged factual dispute between the parties will
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`not defeat an otherwise properly supported motion for summary judgment; the requirement is that
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`there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
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`An issue of fact is “material” if it might affect the outcome of the case under the governing law. Id. at
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`248. A dispute about a material fact is “genuine” if the evidence could lead a reasonable jury to find
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`for the non-moving party. See ibid.
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`At summary judgment, the moving party bears the initial burden of “showing the absence of
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`a genuine issue as to any material fact.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997);
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`see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (“[A] party seeking summary judgment always
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`9
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`bears the initial responsibility of informing the district court of the basis for its motion [ ] and
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`identifying those portions of [the record] which it believes demonstrate the absence of a genuine issue
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`of material fact.”). Once the moving party satisfies its initial burden, the burden then shifts to the non-
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`moving party to “come forward with ‘specific facts showing there is a genuine issue for trial.’” See
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`Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith
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`Radio Corp., 475 U.S. 574, 587 (1986) (emphasis omitted)).
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`The Court, in ruling on a motion for summary judgment, “need consider only the cited
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`materials, but it may consider other materials in the record.” FED. R. CIV. P. 56(c)(3); see also Green v.
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`Northport, 599 F. App’x 894, 895 (11th Cir. 2015) (“The district court could consider the record as a
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`whole to determine the undisputed facts on summary judgment.”); HRCC, Ltd. v. Hard Rock Cafe Int’l
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`(USA), Inc., 703 F. App’x 814, 817 (11th Cir. 2017) (noting that a “court may decide a motion for
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`summary judgment without undertaking an independent search of the record” (quoting FED. R. CIV.
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`P. 56 advisory committee’s note to 2010 amendment)). In any event, on summary judgment, the Court
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`must “review the facts and all reasonable inferences in the light most favorable to the non-moving
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`party.” Pennington v. City of Huntsville, 261 F.3d 1262, 1265 (11th Cir. 2001).
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`In sum, if there are any genuine issues of material fact, the Court must deny summary judgment
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`and proceed to trial. Whelan v. Royal Caribbean Cruises Ltd., 2013 WL 5583970, at *2 (S.D. Fla. Aug. 14,
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`2013) (Ungaro, J.). On the other hand, the Court must grant summary judgment if a party “has failed
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`to make a sufficient showing on an essential element of her case.” Celotex, 477 U.S. at 323; see also Lima
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`v. Fla. Dep’t of Children & Families, 627 F. App’x 782, 785–86 (11th Cir. 2015) (“If no reasonable jury
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`could return a verdict in favor of the nonmoving party, there is no genuine issue of material fact and
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`summary judgment will be granted.” (quoting Beal v. Paramount Pictures Corp., 20 F.3d 454, 459 (11th
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`Cir.1994))).
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`10
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`ANALYSIS
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`In Count I of her Amended Complaint, Lucas asserts a retaliation claim under 42 U.S.C. §
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`1983 “for Violation of her First Amendment Right to Free Speech.” First Amended Complaint for
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`Damages and Injunctive Relief (“Am. Compl.”) [ECF No. 25] at 1. Since both parties are moving for
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`summary judgment on this count,9 we’ll start here. After that, we’ll address Count II—Lucas’s claim
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`under § 1983 for “Violation of her Clearly Established Fourteenth-Amendment Right Against Sex
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`Discrimination.” Lucas’s MSJ at 13.
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`I. The First Amendment Retaliation Claim
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`The First Amendment to the U.S. Constitution “prohibits government officials from
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`subjecting an individual to retaliatory actions for engaging in protected speech.” Nieves v. Bartlett, 139
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`S. Ct. 1715, 1722 (2019) (cleaned up). While “a public employee ha[s] no right to object to conditions
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`placed upon the terms of employment—including those which restricted the exercise of constitutional
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`rights, . . . [t]hat dogma has been qualified in important respects.” Garcetti v. Ceballos, 547 U.S. 410, 417
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`(2006) (citing Connick v. Myers, 461 U.S. 138, 143 (1983)). As relevant here, for instance, “public
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`employees do not surrender all their First Amendment rights by reason of their employment.” Ibid.
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`(emphasis added). “Although the law is well-established that the state may not demote or discharge a
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`public employee in retaliation for speech protected under the first amendment, a public employee’s
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`right to freedom of speech is not absolute.” Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir.
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`1989) (citing Rankin v. McPherson, 483 U.S. 378 (1987)).
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`9 See Lucas’s MSJ at 10 (“Nicole Osfowitz Lucas [ ] respectfully requests this Court to enter summary
`judgment in her favor on Count I of the complaint.”); see also City’s MSJ at 2 (“[Lucas] brings two
`counts under 42 U.S.C. § 1983: Count I claiming the City violated her free speech rights under the
`First Amendment . . . . As demonstrated below, judgment should be entered as a matter of law in the
`City’s favor for at least four reasons.”).
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`11
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`Case 9:21-cv-80469-RKA Document 151 Entered on FLSD Docket 09/15/2023 Page 12 of 53
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`We analyze a public employee’s First Amendment retaliation claim under the test laid out in
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`“Pickering v. Board of Education—the pathmarking case governing public employees’ free-speech-
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`rights[.]” O’Laughlin v. Palm Beach Cnty., 30 F.4th 1045, 1050 (11th Cir. 2022) (citing Pickering v. Bd. of
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`Ed. of Twp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563 (1968)); see also Bryson, 888 F.2d at 1565 (“In
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`Pickering, the landmark case concerning a public employee’s first amendment rights, the Supreme
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`Court held that a public employee’s interests are limited by the state’s need to preserve efficient
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`governmental functions.”). The “Pickering test,” Moss v. City of Pembroke Pines, 782 F.3d 613, 621 (11th
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`Cir. 2015), goes something like this:
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`First, the plaintiff must make a prima facie case by showing, by a preponderance of
`the evidence, that: (1) the employee’s speech is on a matter of public concern; (2) the
`employee’s First Amendment interest in engaging in the speech outweighs the
`employer’s interest in prohibiting the speech to promote the efficiency of the public
`services it performs through its employees; and (3) the employee’s speech played a
`substantial part in the employer’s decision to demote or discharge the employee. If he
`or she can make a prima facie showing, the burden shifts to the employer to show, by
`a preponderance of the evidence, that it would have reached the same decision in the
`absence of protected speech.
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`McAlpin v. Sneads, 61 F.4th 916, 928 (11th Cir. 2023) (quoting Anderson v. Burke Cnty., 239 F.3d 1216,
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`1219 (11th Cir. 2001) (cleaned up)). “The first two inquiries are questions of law for the court.” Green
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`v. Finkelstein, 73 F.4th 1258, 1263 (11th Cir. 2023) (citing Moss, 782 F.3d at 617–18). In cases where
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`the employee wasn’t “demote[d] or discharge[d],” we ask, at the third step of the prima-facie inquiry,
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`whether the employee’s speech played a substantial part in the “alleged adverse employment action.”
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`Millspaugh v. Cobb Cnty. Fire & Emergency Servs., 2022 WL 17101337, at *6 (11th Cir. Nov. 22, 2022)
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`(“Third, if the plaintiff’s speech is protected speech, the plaintiff must show that his speech was a
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`substantial motivating factor in the alleged adverse employment action.” (emphasis added & cleaned up));
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`see also Smith v. City of Tallahassee, 789 F. App’x 783, 786–87 (11th Cir. 2019) (“To establish a prima
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`facie case of First Amendment retaliation, the employee must show . . . (3) the speech played a
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`substantial or motivating role in the employer’s decision to take the adverse action.” (emphasis added));
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`12
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`Case 9:21-cv-80469-RKA Document 151 Entered on FLSD Docket 09/15/2023 Page 13 of 53
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`Valdes v. City of Doral, 662 F. App’x 803, 811 (11th Cir. 2016) (“Assuming Plaintiff’s speech is
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`protected, the third stage of the analysis requires him to show that it was a substantial motivating
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`factor in an adverse employment action taken against him.” (emphasis added)). We thus aren’t only
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`concerned with demotions or discharges at this third step. See, e.g., Akins v. Fulton Cnty., Ga., 420 F.3d
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`1293, 1300 (11th Cir. 2005) (“In addition, any other conduct that alters the employee’s compensation,
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`terms, conditions, or privileges of employment, deprives him or her of employment opportunities, or
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`adversely affects his or her status as an employee qualifies as an adverse employment action.” (cleaned
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`up)).
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`
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`The first step is easy because the parties agree that Lucas’s speech was “on a matter of public
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`concern.” See Lucas’s MSJ at 1 (“Lucas’s [Facebook] post about Black Lives Matter was speech
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`protected by the First Amendment—speech in her role as a private citizen about a matter of public
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`concern.” (emphasis added)); see also City’s MSJ at 12 (“Assuming Lucas’[s] speech involved a matter of
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`public concern . . . .”). Still, Lucas’s First Amendment claim fails at the second and third steps. At the
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`second step, Lucas cannot show that her interest in speaking out about Black Lives Matter outweighed
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`the Police Department’s interest in promoting “the efficiency of the public services it performs
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`through its employees.” McAlpin, 61 F.4th at 928 (quoting Anderson, 239 F.3d at 1219 (cleaned up)).
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`At the third step, Lucas cannot establish that the City took any adverse actions against her. Because
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`it’ll allow our analysis to flow more smoothly, we’ll address these two points in reverse order.
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`a. Adverse Employment Actions
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`i. The Law of Adverse Actions
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`Our Circuit’s standard for determining whether, in the context of the First Amendment, an
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`employer has engaged in an adverse action is, to borrow the Circuit’s own words, “a bit muddled.”
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`Bell v. Sheriff of Broward Cnty., 6 F.4th 1374, 1377 (11th Cir. 2021). To help us explain how we got here—
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`and why we think Lucas’s claim fails either way—we’ll the trace the standard’s evolution back to 2004,
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`13
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`Case 9:21-cv-80469-RKA Document 151 Entered on FLSD Docket 09/15/2023 Page 14 of 53
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`when the Eleventh Circuit “held that a ‘public employer r