Court Upholds Palm Beach County Harassment and Discrimination Policies

A Palm Beach County district chief who was terminated based on allegations he sexually harassed a female subordinate, has lost his lawsuit challenging the constitutionality of the policies he was charged with violating. Former District Chief Christopher DeVito claimed the county’s policies were unconstitutionally overbroad and unconstitutionally vague so as to infringe on his First Amendment rights.

Chief DeVito was accused of sexting a subordinate, in violation of Palm Beach County Fire Rescue Policy FR-A-107 on Discrimination Harassment and Retaliation, and Palm Beach County Policy CW-P-029 on Discrimination, Harassment, Reasonable Accommodation, and Retaliation in the Workplace. He was also charged with conduct unbecoming. He was terminated in August, 2022.

Chief DeVito grieved the termination through the collective bargaining agreement, while at the same time filing the current suit in US District Court for the Southern District of Florida to challenge the constitutionality of both policies.  The court granted the County’s motion to dismiss reasoning as follows:

• Plaintiff has identified very specific portions of a County Policy and a Fire Rescue Policy which he claims to be unconstitutionally overbroad.
• Fire Rescue Policy FR-A-107 states in relevant part that personnel are prohibited from “[s]exting or texting which may be offensive to others.”
• Additionally, Fire Rescue Policy FR-A-107 and County Policy CW-P-0129 both state that:
  • Sexual harassment may occur among co-workers or when a person who is in a position to control, influence, or affect another individual’s job or career standing uses this power to either coerce the subordinate into sexual relationships or punish a refusal to participate in sexual activity.
  • Consenting relationship may constitute sexual harassment under this policy when a professional power differential exists between Fire Rescue personnel and a romantic or sexual relationship develops. There is a potential for abuse of power, even in relationships of apparent mutual consent. Fire Rescue strongly discourages sexual relationships between a supervisor and a subordinate.
• Upon careful review of the policy excerpts, the applicable law, and the parties’ arguments in their papers, the Court finds that Plaintiff has not met his burden of demonstrating from the text of the Policies that substantial overbreadth exists.
• Moreover, he has not shown that there is any realistic danger that the Policies will significantly compromise any recognized First Amendment protections of Fire Rescue or County employees not before the Court.
• All of the allegations made in the Third Amended Complaint and Plaintiff’s papers relate to the Policies’ effect on Plaintiff’s personal right to associate and his right to free speech.
• Additionally, the sections of the Policies regarding relationships between supervisors and subordinates do not directly affect the speech of personnel; rather, they affect the conduct of personnel.
• The Court also reiterates that, while Plaintiff does cite case law in his papers, he never completes any actual analysis as to how those cases apply with regard to Plaintiff’s unconstitutional overbreadth assertions in the case at hand. Instead, Plaintiff improperly poses rhetorical questions to the Court about the application of the Policies to the specific facts in this case.
• In sum, Plaintiff has not met his burden here, the Policies are not unconstitutionally overbroad on their face, and summary judgment must be entered in Defendant’s favor on this issue.
• [As for the Overly Vague argument] It is a “basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.”
• A law “can be impermissibly vague for either of two independent reasons.
• First, if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits. Second, if it authorizes or even encourages arbitrary and discriminatory enforcement.”
• “In the public employment context, the Supreme Court has reiterated that the vagueness doctrine is based on fair notice that certain conduct puts persons at risk of discharge.”
• “Such standards are not void for vagueness as long as ordinary persons using ordinary common sense would be notified that certain conduct will put them at risk of discharge.”
• Put another way, Plaintiff alleges that the “sexual harassment policy is schizophrenically vague …  by expressly permitting ‘sexting’ in its sexual harassment policy, but outlawing it only if it ‘may be offensive to others.'”
• Regardless, the Court… finds that the policy language at issue does provide people of ordinary intelligence a reasonable opportunity to understand the conduct which is prohibited and that it does not authorize or encourage arbitrary or discriminatory enforcement. The policy seemingly prohibits all “sexting” and “texting which may be offensive to others.” And, the term “offensive” is not vague in that it is widely accepted in common parlance and by the courts.
• Final Judgment is hereby entered in favor of Defendant Palm Beach County, and against Plaintiff Christopher DeVito. Plaintiff Christopher DeVito shall take nothing from Defendant Palm Beach County.
• The Clerk of Court is directed to CLOSE this case.

According to the ruling, Chief DeVito’s grievance is still pending. Here is a copy of the decision: