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Walsh v. City of Ocala

United States District Court, M.D. Florida, Ocala Division

June 17, 2019

CASEY E. WALSH, Plaintiff,
v.
CITY OF OCALA, REUBEN GUINN, MARY SUE RICH, JAY MUSLEH, MATTHEW WARDELL, BRENT MALEVER, JAMES HILTY, KENNETH GRAHAM, WILLIAM WOODS, MICHAEL BALKEN and LOUIS BIONDI, Defendants.

          REPORT AND RECOMMENDATION [1]

          PHILIP R. LAMMENS UNITED STATES MAGISTRATE JUDGE.

         There is conduct that occurs in the workplace that shouldn't occur. Indeed, never should it ever occur. Courts, however, have consistently attempted to prevent the judiciary from serving as a super-personnel agency, one charged with regulating all degrees of offensive conduct. Simply because something is offensive, even sexually suggestive, doesn't necessarily mean it rises to the level of sexual harassment under the existing law. We might hope that it wouldn't occur, and we certainly expect that when it does, and is reported, it stops, and that no efforts are made to retaliate against the reporter.

         To ensure that employees feel free to report misconduct - whether that misconduct is itself actionable or not - the law does recognize a claim for retaliation. One who reports conduct that the employee found offensive cannot in turn be retaliated against in an effort to punish her or discourage her or others. Plaintiff Casey E. Walsh, a former police officer in the Ocala Police Department, alleges exactly that. She claims that she was subjected to sexual harassment by her Chief, which occurred because the City, as well as the Mayor and City Council members, allowed it to occur, and that she was then retaliated against by the City and others for complaining.

         Plaintiff thus brings this civil rights action against the City of Ocala, Chief of Police Kenneth Graham, Mayor Reuben Guinn, members of the Ocala City Council (James Hilty, Brent Malever, Jay Musleh, Mary Sue Rich, Matthew Wardell), Marion County Sheriff William Woods, OPD Deputy Chief Michael Balken, and OPD Captain Louis Biondi. The Court previously dismissed most of Plaintiff's Complaint because she failed to allege a plausible claim for hostile environment sexual harassment. She has now filed an Amended Complaint and Defendants have again filed motions to dismiss (Docs. 73, 74, 78, 79, and 80), which have been referred to me.

         Despite her efforts to correct the deficiencies previously noted, I submit that Plaintiff again has failed to state a plausible claim for hostile environment sexual harassment and that her only viable claims are those for retaliation against the City under Title VII (Count VIII) and the Florida Civil Rights Act (Count X), neither of which are currently challenged by the defendants now. Whether she can establish that the treatment she received after her reporting occurred because of the reporting is still to be decided. But, as noted in the Court's prior Order, she's at least alleged enough for those claims to survive. I explain below why I submit that the others don't.

         I. Background

         On August 3, 2009, Plaintiff was hired by the Ocala Police Department (“OPD”) as a police officer. In January 2012, Graham was rehired by the City as the Chief of Police. Plaintiff alleges that since Graham was rehired, she, an openly gay female, has been subjected to sexually charged comments regarding her appearance, sexuality, and romantic partners. She alleges eight occasions in which Chief Graham made sexually charged and offensive comments to her. (Amended Complaint at ¶¶ 29-55). According to Plaintiff, she complained about Chief Graham's actions informally to her superior officer, formally through official police union channels, and through the filing of a complaint with the EEOC. (Complaint at ¶¶ 65, 66).

         On September 15, 2016, the City of Ocala hired a law firm to investigate Chief Graham's conduct. (Complaint at ¶ 67). During the pendency of the investigation, Chief Graham was permitted to go on administrative leave instead of being suspended. (Complaint at ¶ 85). Plaintiff takes issue with the handling of the investigation by the law firm and alleges improper conduct by Mayor Guinn and the City Council members. (Complaint at ¶¶ 68-96). The law firm ultimately delivered a favorable finding and Graham was reinstated in January 2017. (Complaint at ¶ 97-99).

         Plaintiff alleges that after Chief Graham's reinstatement she was subjected to retaliation by Chief Graham and his friends. Specifically, she alleges that Sheriff Woods suddenly and without explanation rescinded her deputy status with the Marion County Sheriff's Department, Deputy Chief Balken elevated disciplinary proceedings unnecessarily, and Captain Biondi initiated baseless investigations. (Complaint at ¶¶ 104-). Plaintiff alleges that this all culminated in her constructive discharge on July 14, 2017. (Complaint at ¶ 137).

         In her Amended Complaint, Plaintiff alleges eleven counts: (1) a hostile environment sexual harassment claim against Chief Graham under 42 U.S.C. § 1983 for violating her right to equal protection under the 14th Amendment to the U.S. Constitution; (2) a § 1983 hostile environment sexual harassment claim against Mayor Guinn and City Council members because they allegedly knew of Graham's conduct but failed to prevent it; (3) a claim for municipal liability under § 1983 against the City based on the City's alleged policy, practice, or custom that caused the deprivation of her rights by Graham; (4) a § 1983 ratification claim against City for allegedly approving of Graham's conduct; (5) a § 1983 retaliation claim against Chief Graham, Sheriff Woods, Deputy Chief Balken, and Captain Biondi for subjecting her to adverse employment action when she complained; (6) a § 1983 conspiracy claim against Chief Graham, Sheriff Woods, Deputy Chief Balken, and Captain Biondi to deprive her of equal protection; (7) a Title VII hostile environment sexual harassment claim against City; (8) a Title VII retaliation claim against the City; (9) a state law claim for hostile environment sexual harassment under the FCRA against the City; (10) a FCRA retaliation claim against the City; and (11) a claim for hostile environment constructive discharge against the City. The defendants have all filed motions to dismiss (Docs. 73, 74, 78, 79, and 80), to which Plaintiff has responded.

         II. Standard of Review

         “A pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). While detailed factual allegations are not required, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). The court must view the allegations of the complaint in the light most favorable to the plaintiff, consider the allegations of the complaint as true, and accept all reasonable inferences therefrom. La Grasta v. First Union Sec., Inc., 358 F.3d 840, 845 (11th Cir. 2004). In considering the sufficiency of the complaint, the court limits its “consideration to the well-pleaded factual allegations, documents central to or referenced in the complaint, and matters judicially noticed.” Id.

         The Eleventh Circuit utilizes a two-pronged approach in its application of the holding in Ashcroft and Twombly. First, the Court must “eliminate any allegations in the complaint that are merely legal conclusions, ” and then, “where there are well-pleaded factual allegations, ‘assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.'” American Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1949).

         A well-pled complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and “that a recovery is very remote and unlikely.” Twombly, 550 U.S. at 556. The issue to be decided when considering a motion to dismiss is not whether the claimant will ultimately prevail, but “whether the claimant is entitled to offer evidence to support the claims.” S ...


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