Filed: Feb. 19, 2014
Latest Update: Mar. 02, 2020
Summary: Case: 13-11885 Date Filed: 02/19/2014 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-11885 Non-Argument Calendar _ D.C. Docket No. 5:10-cv-00415-MMH-PRL LAZARO CABRERA, Plaintiff-Counter Defendant-Appellant, GEORGIA L. DAVIS, Plaintiff-Appellant, CHRIS MULLEN, Plaintiff, versus TOWN OF LADY LAKE, FLORIDA, Defendant-Counter Claimant-Appellee. _ Appeal from the United States District Court for the Middle District of Florida _ (February 19, 201
Summary: Case: 13-11885 Date Filed: 02/19/2014 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 13-11885 Non-Argument Calendar _ D.C. Docket No. 5:10-cv-00415-MMH-PRL LAZARO CABRERA, Plaintiff-Counter Defendant-Appellant, GEORGIA L. DAVIS, Plaintiff-Appellant, CHRIS MULLEN, Plaintiff, versus TOWN OF LADY LAKE, FLORIDA, Defendant-Counter Claimant-Appellee. _ Appeal from the United States District Court for the Middle District of Florida _ (February 19, 2014..
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Case: 13-11885 Date Filed: 02/19/2014 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-11885
Non-Argument Calendar
________________________
D.C. Docket No. 5:10-cv-00415-MMH-PRL
LAZARO CABRERA,
Plaintiff-Counter
Defendant-Appellant,
GEORGIA L. DAVIS,
Plaintiff-Appellant,
CHRIS MULLEN,
Plaintiff,
versus
TOWN OF LADY LAKE, FLORIDA,
Defendant-Counter
Claimant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 19, 2014)
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Before TJOFLAT, PRYOR and JORDAN, Circuit Judges.
PER CURIAM:
Lazaro Cabrera and Georgia L. Davis appeal the summary judgment in favor
of their former employer, the Town of Lady Lake, Florida. We affirm.
Cabrera, a police officer and canine handler, filed a complaint against the
Town to recover unpaid overtime compensation under the Fair Labor Standards
Act. Later, the Town opened an internal affairs investigation to determine whether
Cabrera had violated policies of the Town while managing its canine training
school. The Town also investigated Davis’s role in the training school.
After the investigation commenced, Davis took sick leave to recover from an
eye surgery and entered the Communications Center of the police department to
review video recordings made by internal surveillance cameras. The Town fired
Davis for viewing the videotapes, and she then joined Cabrera’s action as a
plaintiff. The Town also fired Cabrera when he was unable to return to work
because of a medical condition.
Cabrera and Davis filed a second amended complaint containing additional
claims that the Town had opened the internal affairs investigation against Cabrera
in retaliation for his complaint about overtime pay; the Town had made Davis a
subject of the investigation and fired her in retaliation for offering to testify for
Cabrera and for joining him as a co-plaintiff; and the Town had fired Davis to
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interfere with and retaliate for taking leave under the Family and Medical Leave
Act. The Town moved for summary judgment and attached to its motion the
depositions of Cabrera, Davis, and the Town Manager; Cabrera’s employment
contract; Davis’s response to her notice of termination; Davis’s termination letter;
and memoranda and emails from Cabrera, the Chief of Police, and the Town
Manager. Cabrera and Davis moved to strike the pleadings filed by the Town as a
sanction for allegedly tampering with a witness, Officer Richard Parrish.
The district court entered summary judgment against Cabrera and Davis’s
second amended complaint. The district court ruled that Cabrera and Davis failed
to establish a prima facie case of retaliation under the Fair Labor Standards Act, or
in the alternative, to establish that the legitimate reason proffered for the internal
investigation was pretextual. The district court also ruled that Davis failed to
establish a prima case of interference or retaliation under the Family and Medical
Leave Act. The district court dismissed as moot Cabrera and Davis’s motion to
strike the pleadings filed by the Town.
The district court did not err by entering summary judgment against
Cabrera’s and Davis’s claims of retaliation under the Fair Labor Standards Act.
Cabrera and Davis failed to establish that they were subjects of the internal affairs
investigation because of Cabrera’s complaint for overtime compensation. See
Wolf v. Coca-Cola Co., 200 F.3d 1337, 1343 (11th Cir. 2000). The Town
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submitted testimony from Davis and an affidavit from the Town Manager
establishing, without dispute, that the Town opened its investigation after learning
that Cabrera had violated Town policies by conducting training sessions outside of
town and by including civilians in those sessions and that Davis had undergone
training despite being denied permission to do so by the Chief of Police. Cabrera
and Davis submitted an affidavit from Corporal Hicks that the Chief of Police had
remarked a few months before opening the investigation that “there were problems
. . . that he was working on” involving Cabrera and Davis, but that affidavit failed
to create a genuine factual dispute about the legitimacy of the investigation. See
Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000). Even if the Chief
had intended to terminate Cabrera and Davis before he knew of irregularities in the
canine school, his statement did not suggest that the investigation was connected to
Cabrera’s suit for overtime pay. See Smith v. Lockheed-Martin Corp.,
644 F.3d
1321, 1328 & n.25 (11th Cir. 2011). Davis also failed to establish that the
legitimate reason proffered for her termination was pretextual. See Elrod v. Sears,
Roebuck and Co.,
939 F.2d 1466, 1470 (11th Cir. 1991). Davis admitted that she
was fired because she used the department video surveillance system, and she
presented no evidence to dispute that the Chief of Police genuinely believed that
Davis violated several departmental rules prohibiting the personal use of police
video equipment.
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The district court also did not err by entering summary judgment against
Davis’s claims of interference and retaliation under the Family Medical Leave Act.
Davis’s termination was unrelated to her use of leave under the Act. See Martin v.
Brevard Cnty. Public Sch., 543 F.3d 1261, 1267 (11th Cir. 2008). Although Davis
was fired while on sick leave, the undisputed evidence established that she was
fired for violating departmental rules.
The district court also did not abuse its discretion by denying as moot
Cabrera and Davis’s motion to strike the defenses of the Town. “[T]he abuse of
discretion standard allows a range of choice for the district court, so long as that
choice does not constitute a clear error of judgment.” Cook ex rel. Estate of
Tessier v. Sheriff of Monroe Cnty., Fla., 402 F.3d 1092, 1103–04 (11th Cir. 2005)
(internal quotation marks and citations omitted). Cabrera and Davis accused the
interim Chief of Police of tampering with witness Officer Parrish, but Parrish’s
deposition, which Cabrera and Davis attached to their motion, established that the
Chief had not committed any wrongdoing. Cabrera and Davis also accused Officer
Shane Barrett of attempting to influence Parrish’s testimony, but the district court
was entitled to find that “the evidence [did] not support” Cabrera and Davis’s
accusation. The undisputed evidence established that Barrett told Parrish to “tell
the whole truth” and advised him that, “when the smoke clear[ed], [he would] be
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ok.” We cannot say that the district court made a clear error of judgment by
denying Cabrera and Davis’s motion to strike as moot.
Cabrera argues that he is entitled to overtime compensation for the time that
he tended to his police dog while he was on vacation, but that argument is not
properly before this Court. In his second amended complaint, Cabrera alleged that
he was entitled to overtime pay for time he had spent during the workweek tending
to his police dog and that he was entitled to have 68 hours returned to his leave
account because he had to care for his police dog while he was on vacation. We
will not consider a claim for overtime compensation that Cabrera did not present to
the district court. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331
(11th Cir. 2004).
We AFFIRM the summary judgment in favor of the Town of Lady Lake.
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