Florida District Chief’s Wrongful Termination Suit Facing Dismissal

A Florida district chief who was terminated in 2022, has been given one final opportunity to refile an amended complaint before his wrongful termination suit is dismissed. Palm Beach County District Chief Christopher DeVito claims he was wrongfully terminated ostensibly over a risqué texting relationship he had with a subordinate.

Chief DeVito filed suit in federal court on May 1, 2023 alleging wrongful termination, race discrimination, gender discrimination, and retaliation. He filed an amended complaint on July 12, 2023. The county moved to dismiss the suit, prompting the court to allow him to file another amendment compliant on October 16, 2023 to correct the deficiencies.

Following the October 16, 2023 complaint, the county again moved to dismiss the suit. In a decision handed down yesterday, US Magistrate William Matthewman granted the county’s motion, but gave Chief Devito one additional opportunity to amend his complaint.

The factual allegations are complex and lengthy. They also predate the 2022 texting problem. In  2020 Chief DeVito was accused of making a discriminatory statement. He claims he was cleared of the accusations, assured by the fire chief that he believed his explanation, yet received a written warning. As explained in the amended complaint:

  • This is a case about a hyper-politically-correct fire/rescue department….
  • Chief DeVito was falsely accused in June 2020 by Jonathan Forrester — a Haitian-heritage firefighter recruit who is married to a woman of Mexican heritage — of stating “you speak that trash” within the hearing of himself and Firefighter Sebastian Alvarado, as Firefighter Forrester was bilingually registering Spanish-speaking patients at a COVID-19 testing site.
  • Chief DeVito was actually speaking on his cell phone with Tony Tozzi, a battalion chief who was suggesting that he had enjoyed being away from PBCFR while on vacation so much that he was considering leaving, to which Chief DeVito responded “quit talking that garbage.”
  • Reginald Duren, the then-Fire Chief, told Chief DeVito at a Step 3 Grievance hearing that he did not believe that Chief DeVito had said anything discriminatory.
  • Chief Duren, who is Black, nonetheless issued a written warning to Chief DeVito about the incident, which therefore became public record as part of Chief DeVito’s personnel file.
  • Captain Jeffery Newsome, who was then a vice president of the fire-fighters’ union … quoted Chief Duren as saying to Chief DeVito that if he did not discipline Chief DeVito, there would be “backlash.”
  • Although a written reprimand is the lowest form of discipline… It is a public record that… falsely informed the fire-fighters and officers whom Chief DeVito commanded – a significant number of whom are either Black or Hispanic – that PBCFR had concluded that Chief DeVito had made a racially discriminatory statement.
  • It made Chief DeVito vulnerable pursuant to PBCFR’s progressive-discipline policy for an escalation of punishment for any violation he might commit.
  • As a direct, natural and proximate result of Palm Beach County’s public-record declaration that Chief DeVito had engaged in racially discriminatory speech, Chief DeVito’s reputation as a District Chief was damaged, which caused him a loss of prestige, a diminished employment record and emotional distress — for all of which he is entitled to damages.
  • Chief DeVito is entitled by 42 U.S.C. § 1988(b) to recover his attorney’s fees and litigation expenses for suing pursuant to § 1983 to vindicate his Fourteenth Amendment right to be free from racial discrimination.
  • Palm Beach County terminated Chief DeVito August 23, 2022, based on his participation in a consensual, year-long flirting/texting relationship with … a female fire fighter/paramedic who [d]id not complain about the texts going back-and-forth between the two….
  • The termination of Chief DeVito because of the texting relationship in which he … engaged (until she asked him to stop, which he did) violated Chief DeVito’s Fourteenth Amendment rights.

Magistrate Mathewman’s ruling rejected Chief DeVito’s most recent amended complaint. Quoting from the decision:

  • The Court previously found that Amended Complaint failed to sufficiently allege a convincing mosaic of circumstantial evidence… that Defendant’s claimed reasons for firing Plaintiff were merely a pretext for discrimination.
  • The Court concludes that dismissal with prejudice is appropriate in light of Plaintiff’s failure to cure the deficiencies in his pleadings after being put on notice of the same.
  • The Court previously determined that Plaintiff’s Amended Complaint was confusing and improper as then pled.
  • It is clear that Counts III and IV of the SAC do not sufficiently allege that Plaintiff’s employer treated similarly situated employees outside his class more favorably or that the misconduct for which Plaintiff was discharged was the same or similar to what a similarly situated employee engaged in, but that the employer did not discipline the other employee similarly.
  • Thus, neither a disparate treatment nor a disparate discipline claim has been properly pled. Finally, to the extent Plaintiff is relying on evidence outside of the four corners of the SAC, this is improper at the motion to dismiss stage.
  • Based on the foregoing, Counts III and IV are due to be dismissed.
  • While the Court finds it unlikely that Plaintiff can amend Counts III and IV in compliance with the applicable law… the Court, in an abundance of caution, will give him one more chance to do so.
  • Counts I, III, and IV of the Second Amended Complaint are DIMISSED WITHOUT PREJUDICE. Plaintiff shall file a third amended complaint on or before January 17, 2024.
  • Plaintiff is hereby put on notice that this will be his last opportunity to cure any deficiencies in Counts I, III, and IV.

Here is a copy of the decision:

Here is a copy of the Amended Complaint:

About Curt Varone

Curt Varone has over 45 years of fire service experience and 35 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014, 4th ed. 2022) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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