              Case: 18-14057    Date Filed: 05/14/2019    Page: 1 of 28


                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 18-14057
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 6:17-cv-00327-PGB-GJK



MARCOS R. LOPEZ,

                                                                   Plaintiff-Appellant,

                                       versus

RUSSELL GIBSON,
in his official capacity as Sheriff of Osceola County, Florida,

                                                                  Defendant-Appellee.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                   (May 14, 2019)

Before TJOFLAT, JORDAN and HULL, Circuit Judges.

PER CURIAM:
              Case: 18-14057     Date Filed: 05/14/2019   Page: 2 of 28


      Plaintiff Marcos R. Lopez, a deputy employed by the Sheriff’s Office of

Osceola County, Florida, appeals the district court’s grant of summary judgment to

Defendant Sheriff Russell Gibson in his official capacity on Lopez’s 42 U.S.C.

§ 1983 claim that Sheriff Gibson demoted him in retaliation for Lopez’s exercising

his First Amendment rights. After review, we affirm because: (1) Lopez’s suit

against Sheriff Gibson in his official capacity as Sheriff of Osceola County is a suit

against Osceola County itself; (2) Sheriff Gibson in his official capacity was not

the final policymaker as to Lopez’s demotion; and (3) Osceola County itself cannot

be liable under a theory of respondeat superior.

                          I. FACTUAL BACKGROUND

      Plaintiff Lopez is a deputy with the Sheriff’s Office of Osceola County

(“Sheriff’s Office”). In early 2016, Plaintiff Lopez was promoted to the rank of

sergeant, but he was later demoted to deputy status due to his several conduct

violations. Plaintiff Lopez alleges that his demotion was unlawful retaliation for

his protected First Amendment speech on Facebook during Lopez’s 2016

campaign for Sheriff of Osceola County. The only defendant here is the current

Sheriff, Russell Gibson, in his official capacity.

      The district court granted summary judgment in favor of the defendant

Sheriff Gibson. The district court concluded that Sheriff Gibson in his official

capacity was not a final policymaker with respect to Plaintiff Lopez’s demotion


                                           2
               Case: 18-14057    Date Filed: 05/14/2019   Page: 3 of 28


because the Career Service Appeals Board’s review of Lopez’s intended discipline

was meaningful, and its determination was the final decision as to Lopez’s

demotion.

        We first recount the events leading to Plaintiff Lopez’s demotion and then

the decision by the Career Service Appeals Board before the demotion took place.

The parties generally agree as to these facts.

A.      Lopez’s Employment Under Sheriff Hansell

        In 2003, Plaintiff Lopez was hired as a communications dispatcher by the

Sheriff’s Office. After attending the law enforcement academy and obtaining his

law enforcement certification, Lopez became a deputy in 2005. Lopez was

assigned to road patrol until 2009, when he applied for and was selected for the

community response team.

        After a few years on the community response team, Plaintiff Lopez applied

to be promoted to the rank of sergeant, which involves a written examination and

an oral review board. After failing the written examinations in 2012 and 2014,

Lopez passed in 2016 and went before the oral review board. Lopez was placed on

the promotional list and was promoted to the rank of sergeant effective June 6,

2016.

        Throughout 2016, the Sheriff of Osceola County was Robert Hansell, who

notified Lopez of his promotion. Sheriff Hansell served as Sheriff of Osceola


                                          3
              Case: 18-14057    Date Filed: 05/14/2019    Page: 4 of 28


County from January 2005 through January 2, 2017. Hansell did not run for

reelection in 2016, and his term expired on January 2, 2017. Most of the events

took place during Sheriff Hansell’s tenure.

      In November 2016, Defendant Gibson was elected as the Sheriff of Osceola

County, and he took office on January 3, 2017. After Sheriff Gibson took office,

the only relevant event was Plaintiff Lopez’s final appeal to the Career Service

Appeals Board in January and February 2017.

B.    Lopez’s 2016 Campaign for Sheriff of Osceola County

      Two days after being promoted to the rank of sergeant on June 6, 2016,

Plaintiff Lopez announced his campaign to become the next Sheriff of Osceola

County. Lopez registered with the Supervisor of Elections of Osceola County, ran

as a non-party affiliated candidate, and did not have to participate in the primary

election. After the primary election, Lopez’s two opponents were Dave Sklarek

and Defendant Gibson. During the general election in November 2016, both

Sklarek and Gibson already had retired from the Sheriff’s Office and were no

longer employees of the Sheriff’s Office.

C.    Lopez’s Facebook Activity and the First 2016 Investigation

      On June 8, 2016, Plaintiff Lopez announced his candidacy for Sheriff on

Facebook. During the relevant time period, Plaintiff Lopez maintained two

Facebook accounts: a “community cop” page and a personal page. Lopez


                                            4
             Case: 18-14057     Date Filed: 05/14/2019   Page: 5 of 28


announced his candidacy on his “community cop” page and then used that page as

a campaign page. Throughout the opinion, we refer to Lopez’s Facebook page at

issue as his “community cop” page.

      Lopez’s campaign platform emphasized the need for change at the Sheriff’s

Office to reflect the diverse community that it served. In response to Lopez’s

announcement, two employees of the Sheriff’s Office—Sergeant John Pearce and

Detective Albert Vazquez—posted negative comments about his candidacy on

Lopez’s “community cop” page on Facebook.

      On June 17, 2016, Plaintiff Lopez responded by filing an internal complaint

with Sheriff Hansell’s office about Sergeant Pearce’s and Detective Vazquez’s

inappropriate social media posts. After receiving Lopez’s internal complaint,

Captain Keith Parsons made an initial inquiry and determined that an internal

affairs investigation should be conducted.

      Lieutenant Ryan Berry performed the internal affairs investigation.

Lieutenant Berry found that Plaintiff Lopez himself had also participated in the

negative exchange with his fellow law enforcement officers. Lieutenant Berry

informed Lopez that the internal investigation now included a review of Lopez’s

own Facebook posts.

      On September 23, 2016, Lieutenant Berry completed the investigation and

submitted his report. The investigative report concluded that both Plaintiff


                                         5
              Case: 18-14057     Date Filed: 05/14/2019    Page: 6 of 28


Lopez’s and Sergeant Pearce’s Facebook posts had violated the Sheriff’s Office’s

Standard of Conduct § 341.0(4)(A)(41) regarding courtesy and respect to agency

members. Standard of Conduct § 341.0(4)(A)(41) provides that “[m]embers will

be courteous and respectful to all agency members, and members of the public.”

The investigative report’s findings were based upon the following Facebook posts:

      Pearce to Lopez: “You have got to be kidding me! Marcos you struggle
      as a deputy and you expect to fill the shoes of the Sheriff!”

      Pearce to Lopez: “After 14 [years] you just barely became a Sergeant
      but you think you can become Sheriff.”

      Lopez to Pearce: “You are a Sergeant and a supervisor shame on you
      for being ignorant. What have I ever done to you but give you respect?”

      Lopez to Pearce: “I just received the first ignorant comment from a
      Sergeant [P]earce at the . . . Sheriff’s Office.”

As a result of their violations, both Plaintiff Lopez and Sergeant Pearce received

written reprimands.

D.    Lopez’s Facebook Activity and the Second 2016 Investigation

      Meanwhile, in August 2016, Sheriff Hansell issued a directive to all the

Sheriff’s Office’s employees, prohibiting them from campaigning in uniform or

from using the Sheriff’s Office’s property in pictures or on social media for

political purposes.

      Also, during August 2016, Sheriff Hansell and other employees were

informed that Plaintiff Lopez publicly criticized the Sheriff’s Office in a series of


                                           6
              Case: 18-14057     Date Filed: 05/14/2019    Page: 7 of 28


posts on his “community cop” page on Facebook. On August 12, 2016, Sheriff

Hansell initiated a new internal affairs investigation into Plaintiff Lopez’s

Facebook posts led by Sergeant Steve Moser. As part of the investigation,

Sergeant Moser interviewed Lopez and Lieutenant David Boisclair (Lopez’s

supervisor) and reviewed Lopez’s Facebook posts. Lopez’s Facebook posts that

were reviewed included the following:

      June 11, 2016: “Greetings to my people, my name is Marco Lopez and
      [I] present my candidacy to be the new sheriff of the county of Osceola
      Kissimmee . . . My mission is to diversify the department . . . This way
      to regain the confidence of our residents of the Osceola County . . . .”

      August 1, 2016: “Why in the past 12 years under candidate Dave
      Sklarek leadership was there never created a CITIZEN’S ADVISORY
      BOARD for Use of Force complaints? Simply out of touch with the
      WHOLE community! Orange County Sheriff Office has one. Orlando
      Police Department has one. Seminole County Sheriff Office has one.
      #change #riggedsystem”

      August 6, 2016: “To rebuild the trust between law enforcement and the
      community in BVL, Poinciana and other DIVERSE community in the
      county. We must create a SHERIFF’S CITIZEN ADVISORY BOARD
      #change #diversitytrumpssklarek”

      August 8, 2016: “I’ve been contacted by minority business owners
      about a candidate visiting their establishment[s] with uniformed folks
      using bullying tactics to pressure them to put signs on their businesses,
      buses etc. Team Sklarek, big brother is watching. Govern yourself
      accordingly.”

      August 10, 2016: post included photographs of Sheriff Hansell’s
      administration referencing them as “Dave Sklarek’s Osceola County
      Sheriff’s Administration,” when the individuals pictured in the post did
      not work for Sklarek. Lopez indicated that the administration was “out
      of touch with their community. #change #rigged system”
                                           7
             Case: 18-14057     Date Filed: 05/14/2019   Page: 8 of 28


      August 12, 2016: “Good Morning Friends, On November 8th we as
      residents of Osceola County must make a decision on the future of our
      community. Do we continue with the ‘status quo’ Good Ole Boy
      Network law enforcement agency that will eventually lead us to a
      Ferguson and[/]or a Baltimore or we move to a new horizon with a
      DIVERSE law enforcement agency. #change #riggedsystem”

      August 26, 2016: “On day 1 of a Marco Lopez administration at the
      . . . Sheriff’s Office, I will implement mandatory Cultural Diversity
      training for every single sworn deputy employed by the county. It will
      help us unify as one community. Under the current administration[,] it
      can cost millions in liability to ALL residents of the county . . . .”

      August 28, 2016: Photo of Lopez in uniform sitting in his patrol car that
      was posted on his “community cop” Facebook page.

      Multiple: Lopez referred to the Sheriff’s Office as a “#riggedsystem”

      Sergeant Moser’s investigative report found that (1) Plaintiff Lopez posted

numerous posts on his “community cop” Facebook page criticizing the Sheriff’s

Office and implying that the Osceola County community did not trust the Sheriff’s

Office, and (2) Lopez disobeyed Sheriff Hansell’s directive prohibiting Lopez from

wearing his uniform in campaign-related social media posts. During his interview

with Sergeant Moser, Plaintiff Lopez admitted that the picture he posted of himself

in uniform was posted after he received direction from Lieutenant Boisclair to

refrain from campaigning in uniform or from using the Sheriff’s Office’s property

in pictures or on social media for political purposes. According to Sergeant Moser,




                                         8
                Case: 18-14057       Date Filed: 05/14/2019       Page: 9 of 28


Lopez also acknowledged that he violated Sheriff Hansell’s order by posting a

photo of himself in uniform on his “community cop” page.1

       In total, Sergeant Moser’s investigative report concluded that Plaintiff Lopez

violated three Standards of Conduct of the Sheriff’s Office. First, Lopez violated

Standard of Conduct § 341.0(4)(A)(34) regarding criticism. Standard of Conduct

§ 341.0(4)(A)(34) provides that “[m]embers shall not publicly criticize or ridicule

the Sheriff’s Office, its policies, or other members by speech, writing, or other

expression, where such speech, writing or other expression is defamatory, obscene,

unlawful, undermines the effectiveness of the Sheriff’s Office, interferes with the

maintenance of discipline, or is made with reckless disregard for truth or falsity.”

The investigative report determined that Lopez openly criticized in writing (and

through speech) the Sheriff’s Office, Sheriff Hansell and his administration, the

promotional process, the community relationship between the citizens of Osceola

County and the Sheriff’s Office, the citizens’ trust in their community, and the

diversity of the Sheriff’s Office. The investigative report concluded that Lopez’s

open criticisms undermined the effectiveness of the Sheriff’s Office and were

made with reckless disregard for truth or falsity.




       1
         In his deposition, Plaintiff Lopez denied that he admitted to Sergeant Moser that he
violated Sheriff Hansell’s order because the photo of himself in uniform was originally posted to
his personal Facebook page and then later posted on his “community cop” page. Lopez stated
that he had removed the photo of himself in uniform from his “community cop” page.
                                                9
             Case: 18-14057     Date Filed: 05/14/2019   Page: 10 of 28


      Second, Plaintiff Lopez violated Standard of Conduct § 341.0(4)(A)(6)

regarding the violation of rules. Standard of Conduct § 341.0(4)(A)(6) states that

“[m]embers will obey the policies, procedures, instructions, orders, and directives

of the Sheriff.” The investigative report found that, although Lopez admitted that

he violated the Sheriff’s order for his photo that was taken in his uniform, the

picture remained on his “community cop” page.

      Third, Plaintiff Lopez violated Standard of Conduct § 341.0(4)(A)(7)

regarding unbecoming conduct. Standard of Conduct § 341.0(4)(A)(7) provides

that “[m]embers shall conduct themselves at all times, both on and off duty, in

such manner as to reflect most favorably on the Sheriff’s Office. [Unbecoming

conduct] shall include that which brings the Sheriff’s Office into disrepute or

reflects discredit upon the members of the Sheriff’s Office, or that which impairs

the operation or efficiency of the Sheriff’s Office or members.” The investigative

report determined that Lopez was the only Sheriff’s Office supervisor to violate

Sheriff Hansell’s direct order regarding social media during the political season.

The investigative report concluded that Lopez’s actions interfered with the

maintenance of discipline and impaired the Sheriff’s Office’s efficiency.

      On November 28, 2016, Plaintiff Lopez received a notice of disciplinary

action from Sheriff Hansell’s administration stating that the intended discipline

was a demotion to the rank of deputy and a 40-hour suspension without pay. The


                                          10
             Case: 18-14057    Date Filed: 05/14/2019    Page: 11 of 28


notice expressly provided Lopez the right to accept or appeal the disciplinary

action.

E.    Lopez’s 2016 Appeal to the Disciplinary Appeals Board

      Upon being informed of Sheriff’s Hansell’s intended discipline, Plaintiff

Lopez voluntarily requested an appeal through the Disciplinary Appeals Board

(“Disciplinary Board”) to appeal both the findings and severity of his discipline.

The Disciplinary Board consists of three members appointed by the Sheriff, who

was still Sheriff Hansell at this time. See 2000 Fla. Laws Ch. 2000-388 § 2(3)(a).

The members typically were the rank of lieutenant or above. The three officials

selected in Lopez’s appeal were Lieutenant Lori Mingione, Captain Fred

McCrimon, and Dave Synder. The Disciplinary Board held a hearing and Lopez

was present to plead his case. See id. Following the hearing, the Disciplinary

Board upheld both Lopez’s demotion and 40-hour suspension without pay.

F.    Lopez’s Appeal to the Career Service Appeals Board

      On December 28, 2016, Plaintiff Lopez requested an appeal of his discipline

to the Career Service Appeals Board (“Appeals Board”), which is created by

Florida law for the Sheriff’s Office of Osceola County. See 2000 Fla. Laws

Ch. 2000-388 §§ 3(1), 4(1). Under Florida law, the creation and procedures of the

Appeals Board are part of the Civil Service Act that applies to the Sheriff’s Office

of Osceola County. See id. §§ 1(1), 3, 4. The Florida law provides that the


                                         11
                 Case: 18-14057   Date Filed: 05/14/2019   Page: 12 of 28


Appeals Board “shall be appointed . . . for the purposes of hearing appeals of

Career Services members [the rank of lieutenant or below] arising from

disciplinary actions brought under the [S]heriff’s rules, procedures, or policies

which result in dismissal, suspension, demotion, or reduction in pay.” See id.

§§ 1(1)(a), 3(1). In effect, the Appeals Board affords the Sheriff’s Office’s

employees, the rank of lieutenant or below, a formal right to appeal disciplinary

actions by the Sheriff of Osceola County. See id.

       After a Sheriff’s Office employee requests an appeal, the Appeals Board

holds a hearing to resolve the employee’s appeal. See id. § 4(1). During the

hearing, the employee has the right to be heard publicly, to be represented by an

individual of his choice, other than an elected or appointed official of Osceola

County or an attorney licensed to practice law in Florida, and to present any

evidentiary facts in the employee’s behalf presented during the Sheriff’s Office’s

investigation. See id. § 4(2)(a). The Appeals Board has “the power to administer

oaths, issue subpoenas, compel the attendance of witnesses, and require the

production of books, records, accounts, papers, documents, and testimony.” See

id. § 4(2)(c).

       The Appeals Board “shall, by majority vote, dispose of the appeal by

making findings of fact and issuing a written decision to the [S]heriff and the

[employee].” See id. § 4(3)(a). The Appeals Board’s decision shall either sustain


                                           12
             Case: 18-14057     Date Filed: 05/14/2019   Page: 13 of 28


or not sustain the employee’s discipline and may modify any disciplinary action

which was the subject of the appeal. See id. §§ 4(3)(b)-(c). The Florida law

requires that the Appeals Board’s decision “shall be final and binding on the

[employee] and the [S]heriff.” See id. § 4(3)(e).

      The Florida law further provides that the Appeals Board shall consist of five

members—two members selected by the Sheriff, two members selected by the

employee appealing the discipline, and those four individuals select the fifth

member, who is the chairperson of the Appeals Board. See id. § 3(2)(a)-(c). To be

appointed, the Appeals Board members must be full-time law enforcement officers

from an agency within Osceola County. See id.

      For the Appeals Board, as to his discipline, Plaintiff Lopez chose Regis

McCue and Bert McCue. By the time of Plaintiff Lopez’s selection, Sheriff

Gibson had now taken office on January 3, 2017. Sheriff Gibson selected Jeff

Curtis and Alex Guevara. At a public hearing held on January 13, 2017, the four

members met, looked through a list of possible applicants, and unanimously

selected Will Englert as the fifth member and chairperson of the Appeals Board.

All five members selected were employees of the Sheriff’s Office.

      Prior to his hearing, Plaintiff Lopez supplied the Appeals Board with a reply

to the Sheriff’s Office’s disciplinary action in which he advocated for his position




                                         13
             Case: 18-14057     Date Filed: 05/14/2019    Page: 14 of 28


and raised First Amendment arguments. Lopez’s counsel wrote the reply with

Lopez’s assistance.

      The Appeals Board members held additional public hearings on January 20,

2017, and January 25, 2017, to discuss whether the Appeals Board wished to issue

subpoenas, compel attendance of witnesses, or require the production of books,

records, accounts, papers, documents, and testimony.

      On February 2, 2017, the Appeals Board members held the final public

hearing. First, the Appeals Board allowed Sergeant Moser to testify for a

maximum of 20 minutes. Sergeant Moser’s testimony outlined the facts of the

second internal affairs investigation back in 2016.

      Next, the Appeals Board allowed Plaintiff Lopez to testify for a maximum of

20 minutes. Lopez explained that he believed that Sheriff Hansell’s administration

had begun the internal affairs investigation in retaliation for his campaign platform

and exercise of his First Amendment rights. Lopez also testified that he had

allowed his campaign manager and Facebook campaign page administrator, Ruben

DeJesus, to post on his Facebook page, and Lopez claimed that he therefore was

not responsible for the posts that violated the Sheriff’s Office’s policies and the

Sheriff’s orders. According to Lopez, the majority of the posts were made by

DeJesus. During his campaign, Lopez gave several individuals involved in his

campaign the ability to post on his behalf as an administrator to his “community


                                          14
             Case: 18-14057      Date Filed: 05/14/2019   Page: 15 of 28


cop” page. However, Lopez admitted that once he gave these individuals the

ability to post on Facebook on his behalf, any posts from them that were placed on

Lopez’s page would appear to be coming from Lopez himself.

      The Appeals Board then called Lieutenant Boisclair, Sergeant Daryl

Cunningham, and DeJesus to testify. Lieutenant Boisclair testified that he had

advised Lopez of Sheriff Hansell’s direct order prohibiting any member of the

Sheriff’s Office to engage in any form of politicking while on duty, in uniform, or

with any agency-owned equipment. Sergeant Cunningham testified that he had

numerous conversations on Facebook, which he believed were with Lopez, and he

had no reason to believe the posts were made by DeJesus. DeJesus testified that he

was responsible for about 95% of the posts made on Lopez’s Facebook

“community cop” page. All of the witnesses were placed under oath before

providing testimony to the Appeals Board. All of the Appeals Board members

asked the witnesses questions.

      Sergeant Moser and Plaintiff Lopez then each had two minutes for final

arguments. Lopez asked the Appeals Board to believe that he had no knowledge of

and did not monitor the Facebook posts on his “community cop” page. Lopez did

not provide any other evidence showing who posted which posts on his Facebook

“community cop” page.




                                          15
              Case: 18-14057     Date Filed: 05/14/2019    Page: 16 of 28


      Following the testimony, the Appeals Board held an open deliberation and

then voted whether to sustain each of Plaintiff Lopez’s violations of the Sheriff’s

Office’s Standards of Conduct. By a majority vote, 3 of the 5 members voted to

sustain each of Lopez’s three violations. In its written decision, the Appeals Board

made detailed findings of fact as to each of Lopez’s violations. First, as to Lopez’s

violation of Standard of Conduct § 341.0(4)(A)(34) regarding criticism, the

Appeals Board found that Lopez maintained a public Facebook page for campaign

purposes. Based on the information in the internal affairs investigation and the

testimony in its hearing, the Appeals Board found that Lopez knowingly allowed

the posting of items which criticized the Sheriff’s Office, its practices, and other

employees. The Facebook posts, in part, defamed members of the chain of

command and administration, undermined the Sheriff’s Office’s effectiveness, and

interfered with the Sheriff’s Office’s confidentiality, esprit de corps, and efficient

operation. The Appeals Board also found that the Facebook posts were made with

reckless disregard for truth or falsity.

      Second, as to Plaintiff Lopez’s violation of Standard of Conduct

§ 341.0(4)(A)(6) regarding violation of rules, the Appeals Board based its findings

on the information, interviews, and documents contained in the internal affairs

investigation, as well as the testimony provided during the final hearing held on

February 2, 2017. The Appeals Board found that the evidence showed that a


                                           16
                 Case: 18-14057        Date Filed: 05/14/2019       Page: 17 of 28


photograph of Lopez in his Sheriff’s Office uniform was posted on his Facebook

“community cop” page after he received a direct order from Sheriff Hansell to

refrain from campaigning in uniform or from using Sheriff’s Office property in

pictures or on social media for political purposes.

      Third, as to Plaintiff Lopez’s violation of Standard of Conduct

§ 341.0(4)(A)(7) regarding unbecoming conduct, the Appeals Board found that

Lopez allowed public posts on his Facebook “community cop” page. The Appeals

Board stated that Lopez’s action or inaction in allowing posts on his political and

public Facebook page directly contradicted a direct order and violated Sheriff’s

Office policy with their content. The Appeals Board found that this conduct was

unbecoming of a Sheriff’s Office supervisor2 and sent a clear message to

subordinates that supervisors were disobeying policies, rules, and direct orders.

The Appeals Board stated that there was a heightened need for order, loyalty,

morale, and harmony among officers employed by the Sheriff’s Office.

      Although the Appeals Board sustained Plaintiff Lopez’s conduct violations,

the Appeals Board, by a majority vote, did not sustain all of the Sheriff’s intended

discipline. Instead, a majority of the Appeals Board voted to uphold Lopez’s




      2
          It is undisputed that Plaintiff Lopez, with the rank of sergeant, was a supervisor.
                                                  17
              Case: 18-14057      Date Filed: 05/14/2019     Page: 18 of 28


demotion but to overturn the 40-hour suspension without pay. 3 The Appeals

Board’s February 2, 2017, decision was final and binding on Lopez and Sheriff

Gibson, who had taken office on January 3, 2017. See 2000 Fla. Laws,

Ch. 2000-388 § 4(3)(e).

       In accordance with the Appeals Board’s decision, on February 3, 2017,

Sheriff Gibson demoted Plaintiff Lopez from the rank of sergeant to deputy.

Plaintiff Lopez’s demotion became effective on February 3, 2017. Lopez

continues to be employed by the Sheriff’s Office as a deputy in road patrol.

G.     42 U.S.C. § 1983 Lawsuit

       On February 24, 2017, Plaintiff Lopez instituted this federal action against

Sheriff Gibson in his official capacity under 42 U.S.C. § 1983 for violating his

First Amendment rights. Lopez claimed that he was demoted from sergeant to

deputy because of his political speech expressed on his Facebook “community

cop” page during his 2016 campaign for Sheriff. Lopez alleged that the Sheriff’s

Office’s discipline and demotion, ultimately imposed by Defendant Sheriff Gibson

in 2017, violated the First Amendment and that he was entitled to § 1983 damages

caused by the unlawful demotion and to reinstatement to the rank of sergeant,

among other things.


       3
       The two Appeals Board members that Plaintiff Lopez selected voted against Lopez’s
demotion and suspension. The fifth member was in favor of demotion but not suspension. The
two members chosen by Sheriff Gibson were in favor of demotion and suspension.
                                            18
               Case: 18-14057       Date Filed: 05/14/2019       Page: 19 of 28


       Sheriff Gibson in his official capacity filed a motion for summary judgment,

which the district court granted. 4 The district court concluded that Sheriff Gibson

in his official capacity was not a final policymaker with respect to Plaintiff Lopez’s

demotion because the Appeals Board’s review was meaningful and its decision

was the final one. Further, the district court ruled that Lopez failed to show that

the Appeals Board had defective procedures, rubber-stamped the Sheriff’s

decision, or merely ratified the Sheriff’s decision and improper motive.

       Plaintiff Lopez appealed.5

                                     II. DISCUSSION

       Plaintiff Lopez pursues his § 1983 claim for violation of his First

Amendment rights against Sheriff Gibson in his official capacity as Sheriff of

Osceola County, Florida.6 A suit against a municipal officer in his official



       4
        Plaintiff Lopez also filed a motion for summary judgment, which the district court
denied. In his brief on appeal, Lopez does not appeal the denial of his motion for summary
judgment. Rather, Lopez requests that this Court reverse the district court’s grant of summary
judgment in favor of Defendant Sheriff Gibson and order a trial on the merits of his First
Amendment retaliation claim.

       5
         In addition to a First Amendment retaliation claim, Plaintiff Lopez’s complaint also
asserted an Equal Protection claim under § 1983. In Lopez’s response in opposition to Sheriff
Gibson’s motion for summary judgment, Lopez indicated that he agreed that his Equal Protection
Claim could be dismissed. The district court granted summary judgment as to the Equal
Protection claim. On appeal, Lopez raises no issue as to any claim except his First Amendment
retaliation claim.
       6
        We review de novo a district court’s summary judgment ruling, applying the same legal
standards as the district court. Carter v. City of Melbourne, 731 F.3d 1161, 1166 (11th Cir.
2013). Summary judgment is appropriate when, viewing the evidence in the light most favorable
                                               19
               Case: 18-14057       Date Filed: 05/14/2019       Page: 20 of 28


capacity is effectively a suit against the government entity that the officer

represents. Cook ex. rel Estate of Tessier v. Sheriff of Monroe Cty., 402 F.3d

1092, 1115 (11th Cir. 2005). Thus, Plaintiff Lopez’s suit is against Osceola

County itself. Lopez’s suit therefore attempts to hold Osceola County liable for

Sheriff Gibson’s action in demoting Plaintiff Lopez. A municipality, such as

Osceola County, cannot be liable under § 1983 on a theory of respondeat superior.

Monell v. Dep’t of Soc. Servs. of New York, 436 U.S. 658, 691, 98 S. Ct. 2018,

2036 (1978).

       A plaintiff suing a municipality can recover under § 1983 only if “action

pursuant to official municipal policy of some nature caused a constitutional tort.”

Id.; see Cook, 402 F.3d at 1116 (stating that § 1983 liability exists only when the

constitutional violation was the result of an official municipal policy). “Municipal

liability under 42 U.S.C. § 1983 may be premised upon a single illegal act by a

municipal officer only when the challenged act may fairly be said to represent

official policy, such as when that municipal officer possesses final policymaking

authority over the relevant subject matter.” Morro v. City of Birmingham, 117

F.3d 508, 510 (11th Cir. 1997); see also Pembaur v. City of Cincinnati, 475 U.S.

469, 481, 106 S. Ct. 1292, 1299 (1986); Scala v. City of Winter Park, 116 F.3d




to the non-moving party, “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a), (c); Carter, 731 F.3d at 1166.
                                               20
             Case: 18-14057     Date Filed: 05/14/2019   Page: 21 of 28


1396, 1397 (11th Cir. 1997). “[W]hether a particular official has ‘final

policymaking authority’ is a question of state law.” City of St. Louis v. Praprotnik,

485 U.S. 112, 123, 108 S. Ct. 915, 924 (1988) (emphasis in original). Therefore,

in order for Lopez to prevail on his § 1983 claim, Sheriff Gibson must have been

the final policymaker with regard to Lopez’s demotion.

      An official is not a final policymaker where his decisions are subject to

“meaningful administrative review.” Scala, 116 F.3d at 1401. Generally, the

existence of a reviewing body suffices to find that an official whose decisions are

subject to review was not a final policymaker. See, e.g., Morro, 117 F.3d at 514

(collecting cases). This Court has found meaningful administrative review where

there was review by a Career Service Council with the authority to order

reinstatement or otherwise amend, alter, sustain, or reverse the decision of the

employer. See Quinn v. Monroe Cty., 330 F.3d 1320, 1322-24, 1326 (11th Cir.

2003) (concluding that county administrator was not the final policymaker with

respect to county library director’s termination, as required to hold county liable

for library director’s First Amendment retaliation claim under § 1983, because the

county administrator’s termination decision was subject to meaningful

administrative review by the Career Service Council). Also, this Court has found

meaningful administrative review where there was review by a Civil Service Board

with power to reverse an employer’s termination decision. See Scala, 116 F.3d at


                                          21
                Case: 18-14057   Date Filed: 05/14/2019   Page: 22 of 28


1397-98, 1402-03 (holding that city manager and public safety director’s decision

to terminate fire department employee was subject to meaningful administrative

review by the Civil Service Board and thus they were not final policymakers, as

required for city to be liable under § 1983 for employee’s claim that his

termination was in violation of his First Amendment rights to free speech and free

association).

      However, a plaintiff can attempt to demonstrate that the reviewing body’s

administrative review is not meaningful, such that the official should be considered

the final policymaker. See Quinn, 330 F.3d at 1326; Scala, 116 F.3d at 1402. To

succeed in such an argument, the plaintiff needs to show that the reviewing body

has defective procedures, merely “rubber stamps” the official’s decision, or ratifies

the official’s decision and improper motive. See Quinn, 330 F.3d at 1326; Scala,

116 F.3d at 1402.

      It is the plaintiff’s burden to show that the official is a final policymaker.

See Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 636-37 (11th Cir. 1991). If

the defendant is not a final policymaker, the plaintiff’s § 1983 claim fails against a

defendant in his official capacity. See Celotex Corp. v. Catrett, 477 U.S. 317,

322-23, 106 S. Ct. 2548, 2552 (1986) (noting that summary judgment is proper

when a plaintiff fails to adequately prove an essential element of his claim). The

dispositive issue in this appeal is whether Sheriff Gibson is a final policymaker


                                          22
             Case: 18-14057     Date Filed: 05/14/2019    Page: 23 of 28


with respect to employment demotions of employees working for the Osceola

County Sheriff’s Office.

A.    Final Policymaker

      On appeal, Plaintiff Lopez argues that in 2017 Sheriff Gibson in his official

capacity was the final policymaker because he had absolute authority over Lopez’s

demotion. Lopez contends that Sheriff Gibson has absolute authority over the

deputies and the interpretation and application of the Sheriff’s Office’s policies.

He argues that the Appeals Board did not establish any government policy or

determine the constitutionality of Sheriff Gibson’s interpretation of the conduct

policies.

      Plaintiff Lopez acknowledges that the Sheriff’s Office’s Standards of

Conduct prohibit publicly criticizing the Sheriff’s Office, where such speech is

defamatory, obscene, unlawful, undermines the effectiveness of the Sheriff’s

Office, interferes with the maintenance of discipline, or is made with reckless

disregard for truth or falsity. Lopez does not challenge the constitutionality of the

conduct standards vel non. Rather, Lopez contends that Sheriff Gibson should not

have applied the existing standards to his conduct and demoted him because it was

protected political speech. We need not address whether Lopez’s posts on his

“community cop” page on Facebook were protected speech or not because Sheriff

Gibson was not the final policymaker in regards to Lopez’s demotion in any event.


                                          23
             Case: 18-14057     Date Filed: 05/14/2019   Page: 24 of 28


      As the district court concluded, Sheriff Gibson was not the final policymaker

with respect to Lopez’s demotion because Florida law specifically delegated that

authority to the Career Service Appeals Board. See 2000 Fla. Laws, Ch. 2000-388

§ 4(3)(e). Plaintiff Lopez elected to pursue his right to appeal through the

discipline appeal process provided by the Appeals Board. See id. § 4(1). As

recounted above, the Appeals Board had the power to review and reverse the

Sheriff’s discipline, and the Sheriff was bound by the Appeals Board’s decision.

See id. §§ 4(3)(b)-(c), (e). Further, Sheriff Gibson’s demotion of Lopez was

subject to meaningful administrative review by the Appeals Board, which heard

witnesses, deliberated, and issued its own fact findings and decision. See Quinn,

330 F.3d at 1326; Scala, 116 F.3d at 1402-03. The district court thus did not err in

concluding that Sheriff Gibson in his official capacity was not the final

policymaker as to Lopez’s demotion.

B.    Shared Policymaking Authority

      Alternatively, Plaintiff Lopez argues that, even if Sheriff Gibson in his

official capacity was not the final policymaker, Sheriff Gibson shared

policymaking responsibility with the Appeals Board. Lopez contends that Sheriff

Gibson could have rescinded his demotion due to Sheriff Gibson’s extensive

control and authority in other areas of the Sheriff’s Office. Further, Lopez




                                         24
             Case: 18-14057     Date Filed: 05/14/2019   Page: 25 of 28


contends that Sheriff Gibson could have rescinded his demotion to admit “that

[the] demotion was unconstitutional and restor[ed] [Lopez] to his former position.”

      As an initial point, Plaintiff Lopez’s complaint lacks a separate cause of

action for Sheriff Gibson’s failure to re-promote Lopez after the Appeals Board’s

decision. Also, as explained above, Florida law is clear that the Appeals Board’s

decision is final and binding on both Sheriff Gibson and Lopez. See 2000 Fla.

Laws, Ch. 2000-388 § 4(3)(e). Sheriff Gibson did not have the authority to rescind

Lopez’s demotion after the Appeals Board issued its written decision affirming

Lopez’s demotion and overturning his 40-hour suspension without pay. See id.

      As to Plaintiff Lopez’s argument regarding Sheriff Gibson’s general

authority over the Sheriff’s Office, final policymaking authority in one sphere of

decision making does not automatically establish final policymaking authority in

another. “Municipal liability attaches only where the decisionmaker possesses

final authority to establish municipal policy with respect to the action ordered.”

Pembaur, 475 U.S. at 481, 106 S. Ct. at 1299. Neither Sheriff Gibson’s general

authority over other aspects of the Sheriff’s Office’s operations nor his authority to

promote is relevant to whether he had final policymaking authority with respect to

the specific disciplinary action at issue in this case—Lopez’s demotion.




                                          25
             Case: 18-14057     Date Filed: 05/14/2019   Page: 26 of 28


C.    Appeals Board’s Procedures and Review

      Plaintiff Lopez also contends that Sheriff Gibson was a final policymaker

because the Appeals Board’s procedures were defective and did not provide him

with meaningful administrative review. Lopez argues he was not provided with

meaningful administrative review because: (1) he was not allowed to be

represented by an attorney licensed to practice law in Florida; (2) he was not

afforded a full evidentiary hearing, as direct and cross-examination of witnesses

was limited to 20 minutes each; (3) he was prohibited from presenting evidence or

calling witnesses that the Sheriff’s Office did not interview during the internal

affairs investigation; (4) he was limited to a two minute closing argument; (5) the

Appeals Board’s hearing lasted only two and one half hours; (6) the five panel

members were Sheriff Gibson’s employees; and (7) the Appeals Board did not

substantively review the record and reasons for Lopez’s demotion.

      Despite Plaintiff Lopez’s complaints, the record shows that the Appeals

Board exercised meaningful administrative review over whether to demote and

suspend Lopez. Lopez has not shown that the Appeals Board had defective

procedures, rubber-stamped the Sheriff’s discipline, or merely ratified the Sheriff’s

discipline and improper motive.

      Plaintiff Lopez has not cited any authority supporting his assertions that the

Appeals Board proceeding was defective. In fact, under the Appeals Board’s


                                          26
             Case: 18-14057     Date Filed: 05/14/2019   Page: 27 of 28


procedure prescribed by Florida law, Lopez handpicked two of the five panelists,

personally testified, introduced evidence, examined witnesses, provided argument

at a two-and-a-half-hour final hearing open to the public, and ultimately succeeded

in overturning part of the discipline, specifically his 40-hour suspension without

pay. See 2000 Fla. Laws, Ch. 2000-388 §§ 3(2)(b), 4(2)(a). Lopez had the right to

be heard publicly, to be represented by an individual of his choice (other than an

elected or appointed official of Osceola County or an attorney licensed to practice

law in Florida), and to present any evidentiary facts in his behalf that were

presented during Sheriff Hansell’s investigation. See id. § 4(2)(a).

      Also, the Appeals Board did not rubber-stamp Sheriff Gibson’s discipline or

impermissibly ratify either the Sheriff’s decision to demote Plaintiff Lopez or the

alleged unconstitutional motivation for the Sheriff’s decision. Indeed, the Appeals

Board found by a majority vote that part of the Sheriff’s intended discipline was

not sustained, as it overturned the 40-hour suspension without pay. There is no

evidence that the Appeals Board’s decision approved any alleged improper motive

that Sheriff Gibson had for Lopez’s demotion. In addition, the Appeals Board’s

written decision shows that the Appeals Board affirmed Lopez’s demotion and

overturned his suspension based on its own considered review of the witnesses’

testimony and evidence. Despite Lopez’s argument that the Appeals Board’s

decision was based on Sheriff Gibson’s interpretation and application of the


                                          27
               Case: 18-14057       Date Filed: 05/14/2019       Page: 28 of 28


Sheriff’s Office’s policies, the Appeals Board made its own detailed findings of

fact regarding each one of Lopez’s alleged violations and explained what evidence

it relied on in making its findings. After making its own fact findings, the Appeals

Board considered and applied those facts to Lopez’s case and the majority

concluded that Lopez violated three of the Sheriff’s Office’s Standards of Conduct.

                                    III. CONCLUSION

       For all these reasons, the district court properly concluded that the defendant

Sheriff Gibson in his official capacity was not a final policymaker with respect to

Plaintiff Lopez’s demotion, which is necessary to support the municipal liability of

Osceola County under § 1983. The district court did not err in granting summary

judgment in favor of Sheriff Gibson in his official capacity on Lopez’s First

Amendment retaliation claim. 7

       AFFIRMED.




       7
          To be clear, nothing herein addresses the merits of Plaintiff Lopez’s First Amendment
retaliation claim or whether or not the Sheriff’s Office’s policies—such as forbidding certain
derogatory speech and conduct by its employees—violates an employee’s First Amendment
Rights. Lopez has not challenged the existence of the policies in the first instance.
                                               28
