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Eleventh Circuit Court of Appeals affirms dismissal of Broward County deputy’s civil rights lawsuit, finds that deputy’s suspension with pay following his comments criticizing the Sheriff’s COVID-19 response did not constitute an “adverse action” by the Sheriff

On August 2, 2021, in Bell v. Sheriff of Broward County, No. 20-11958, the Eleventh Circuit Court of Appeals affirmed a dismissal of a 42 U.S.C. § 1983 civil rights lawsuit. The plaintiff, a deputy with the Broward County Sherriff’s Office, alleged in his complaint that his suspension with pay for five days was an adverse action undertaken by the Sheriff retaliating for the deputy’s public statements criticizing the Sheriff for his response to the COVID-19 pandemic. The district court dismissed the complaint under Fed. R. Civ. P. 12(b)(6)because it determined that the plaintiff had not alleged an adverse employment action. The Eleventh Circuit agreed, noting that while the First Amendment prohibits government officials from subjecting an individual to retaliatory actions for engaging in protected speech, and that a public employer retaliates in violation of the First Amendment when it takes an adverse employment action that is likely to chill the exercise of constitutionally protected speech, see Stavropoulos v. Firestone, 361 F.3d 610, 618 (11th Cir. 2004), the suspension with pay pending an investigation did not constitute adverse employment action for purposes of a First Amendment retaliation claim. The Eleventh Circuit cited decisions in other Circuits supporting this position. See Breaux v. City of Garland, 205 F.3d 150, 158 (5th Cir. 2000); Sensabaugh v. Halliburton, 937 F.3d 621, 629 (6th Cir. 2019). However, the Eleventh Circuit declined to broadly rule that a public employee’s suspension never constitutes an adverse action for purposes of a First Amendment retaliation claim, noting that the Ninth Circuit Court of Appeals has found an adverse action under slightly different circumstances. See Dahlia v. Rodriguez, 735 F.3d 1060, 1078-79 (9th Cir. 2013) (en banc) (holding that placement on administrative leave was an adverse action because the police officer was not allowed to take a sergeant’s exam, forfeited holiday pay, and lost investigative experience).