M. CASEY RODGERS, Chief District Judge.
Plaintiff Harry A. Laird, IV, brought this suit against his former employer, the Board of County Commissioners of Walton County, Florida, and two individuals, Larry Jones and Cindy Meadows, claiming that he was terminated in retaliation for exercising his First Amendment rights, 42 U.S.C. § 1983, and in violation of Florida's Public Employee Whistleblower Statute, Fla. Stat. § 112.3187, et seq. Each Defendant has filed a Motion for Summary Judgment. Having fully reviewed the matter, the Court finds that the motions are due to be granted, with the exception of the whistle-blower retaliation claim against the County.
Harry A. Laird, IV, was employed for ten years by the Walton County Board of County Commissioners (the "County"), most recently as Flood Plain Manager in the Department of Planning and Management. The County Administrator, Larry Jones, terminated Laird's employment for insubordination on July 21, 2015. The undisputed facts reflect the following.
Laird's employment with the County began in 2005. He was a Planner in the Planning Department with responsibility for building permit review.
Laird's immediate supervisor was Wayne Dyess, Planning Director. Dyess reported to the County Administrator, Larry Jones, who was the head of all County departments.
In January 2015, while reviewing files for purposes of identifying whether subdivisions were in compliance with coastal dune lake requirements, Laird came across a memo in a file related to the Blue Mountain subdivision. The memo was drafted in 2008 by another Planner in the Department, Melissa Ward, and in the memo, Ward took responsibility for a "decimal point error," which she acknowledged had resulted in a billing error in 2005. The memo explained that instead of billing the Blue Mountain subdivision the required recreational impact fee of $614,000, Ward had billed only $614, and she did not notice the error before recording the final plat. Laird knew Ward and said she had been terminated in 2011 for improper permitting.
Laird testified that during the investigation, Mr. Jones and Mr. Davis held a department-wide meeting in which they encouraged employees to cooperate with the investigation. ECF. No. 48-1, at 47 (Laird Dep. at 187-88). Several County employees, including Laird, were questioned by the State Attorney's Office in voluntary interviews. Laird was questioned on two occasions, once in March 2015 and again in late-April or May 2015. Laird never told anyone what he was asked in his interview with the State Attorney or what he had said, although it is clear from the record that he did not know anything about this incident aside from finding the memo in the file. The County department heads were generally aware that he and others were being interviewed. The investigation resulted in significant media coverage, which Laird said gave the County "a black eye" and was a source of embarrassment to the County, and "I'm the guy who found it" (meaning the memo). ECF No. 48-1, at 4 (Laird Dep. at 15).
Jones terminated Laird's employment on July 21, 2015, citing insubordination based on Laird's response to the County Administrator's request for a written explanation regarding an incident where Laird had approved a 15-foot setback in a permit without taking the matter to the Board of Adjusters for approval. ECF No. 48-2, at 5-6. The setback issue came to light on June 30, 2015, when Commissioner Cindy Meadows received an email from a constituent, Tony Cook, the Secretary of the Sugarwood Homeowners' Association ("Sugarwood HOA"), requesting a meeting "as soon as possible" about "some unusual actions by Code enforcement and the Planning Department regarding construction in our development." ECF No. 48-3, at 13; ECF No. 55-23. On July 2, 2015, Meadows met with Cook and Dave Erickson, President of the Sugarwood HOA, and they expressed concern over a five-foot reduction to the setback requirement that one property owner in their development had received. This property owner was allowed a 15-foot setback requirement, instead of the 20-foot setback requirement that applied to the rest of the neighborhood, and the Sugarwood HOA representatives questioned why one lot owner did not have to comply with the same rules that applied to the rest of the development. Concerned that a permit had been erroneously or illegally issued in violation of the County's LDC, Commissioner Meadows asked County Administrator Jones and County Attorney Davis, who were in the area that day, to look into the matter.
After meeting with the Sugarwood HOA representatives, Jones and Davis also met with Laird to ask for an explanation. According to Laird, he explained to them that he made the determination to approve the setback in the same manner he has done throughout his time as Flood Plain Manager, stating that his supervisor Dyess allowed him to make hardship exceptions pursuant to Chapter 8 of the Land Development Code, which provides an exception from the variance process. Jones also asked Laird to provide a written explanation, which Laird does not dispute, and Laird provided one two weeks later by email. However, according to Laird, he also spoke with County Attorney Davis a few days later on July 8, and Davis indicated that nothing else was needed; consequently, Laird thought the matter was settled. But when Jones did not receive a written explanation and two weeks had passed, Jones mentioned it to Dyess (Laird's supervisor), and Dyess told Laird he should provide a written explanation to Jones. Laird sent Jones the brief written explanation by email on July 16, 2015.
Jones was unhappy with the delay and with Laird's explanation, which Jones felt was inadequate. He signed a termination notice on July 21, 2015, stating that Laird had violated County Policy 18.2 by engaging in conduct that was "disruptive, insubordinate, antagonistic, offensive or injurious to the County;" for failing to perform his job in a satisfactory manner; and for "[i]ncompetence, inefficiency, negligence, or failure to follow orders," as detailed in an attachment. ECF No. 46-2. Attached to the form was a statement by Jones describing the incident involving the Sugarwood HOA complaint and setback that Laird had approved, along with Jones's statement that Laird had failed to provide a timely and adequate written explanation when directed to do so. According to Jones, this amounted to "failure to perform job duties and insubordination." ECF No. 46-2, at 2. By deposition, Jones explained that he made the decision to terminate Laird because his act of bypassing the Board of Adjustment proceeding was unusual, because Laird failed to provide an adequate reason for granting the setback and none appeared in the file, and also, because Laird failed to timely provide a written explanation when directed to do so, and Jones thought Laird's email response was insufficient. Jones also said that Dyess reported that Laird "didn't think it was a big deal." Also in his deposition, Jones referenced incidents of other complaints the County had received about Laird, but these were not included in the termination notice.
Laird's employee evaluations from 2013 and 2014 show that his job performance met or exceeded expectations, and the only official discipline in his personnel file was a 2009 written warning he received for participating in an office sports pool during work hours, for which he received a "formal counseling." ECF No. 55-9. Laird testified that he was surprised at being terminated over the Sugarwood setback incident because he felt that he had authority under Chapter 8 of the LDC and from Dyess to grant a hardship exception in certain instances.
According to Laird, Commissioner Meadows was behind the termination decision.
Commissioner Meadows stated that she did not have the authority to hire or fire employees other than her own assistant, and she denied having any part in the decision terminate Laird. Meadows said she also did not urge Jones to fire Laird. She said that she knew of Laird only because the County had received several complaints about him. In addition to the Sugarwood HOA setback incident, the record includes two emails sent to Meadows by constituents in July 2014, reporting delays they experienced in waiting for permits and that Laird displayed a negative attitude and used disrespectful language (telling one constituent she was "screwed" due to a Code change). Additionally, there was a telephone complaint about Laird from another constituent, Patricia Helms, in June 2015, which was discussed in interoffice emails.
In his Complaint, Laird states that after he discovered the "decimal point memo" and participated in the State Attorney's investigation, Jones and Meadows "openly questioned his professional judgment." To support this allegation, he testified that he applied for a transfer from Flood Plain Manager to Beach Maintenance Manager and did not receive an interview, although he did not know when the position was filled or how many people applied, and he only assumed that the person awarded the position was less qualified than he. He testified to an instance in May 2015 when an RV was improperly parked on a lot by a temporary power pole, and, instead of asking the Planning Department whether they had issued a permit, Meadows posted it on Facebook and asked generally if anyone knew anything about it. Laird took this as a personal insult and said he was then questioned about it by his supervisor. None of the statements by Meadows or the comments by citizens reference Laird. When asked what connection this had to his termination, Laird candidly answered, "I don't see any."
One other example Laird offered to show that his judgment was questioned related to an email entitled, "Counseling," that he received from his supervisor, Dyess, on June 30, 2015. The brief email from Dyess memorialized an incident that had occurred the previous day; the email provided no details except to say that "it is highly inappropriate to contact a customer to inquiry why they called a Commissioner." He urged Laird not to let it happen again. According to Meadows and emails by her assistant, on June 29, 2015, a constituent, Mrs. Helms, had called to complain about Laird, saying he was rude and "irate" with her for lodging a complaint about him with the Commissioner. Laird does not dispute that the incident occurred but disputes Meadows's characterization of it. He responded to the "Counseling" email by offering a written explanation, stating, while he had called Mrs. Helms back to explain the reason for the delay of her inspection, he was not rude or irate but had "merely helped [her] acknowledge the fact that calling in a complaint about someone who is not at fault in any way has repercussions." ECF No. 55-22. In his verified declaration, Laird said that he did not scold Mrs. Helms for calling the Commissioner's office.
A Grand Jury convened in June 2015. After Laird's termination on July 21, 2015, he was called to testify before the Grand Jury, either in late July or mid-August, although he had received the subpoena before his termination. The Grand Jury's sealed report was issued on September 4, 2015, the same day Laird filed this suit.
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "The moving party bears the initial burden of informing the court of the basis for its motion and of identifying those materials that demonstrate the absence of a genuine issue of material fact." Rice-Lamar v. City of Ft. Lauderdale, 232 F.3d 836, 840 (11th Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In response, the nonmoving party must "go beyond the pleadings" and identify competent record evidence showing the existence of a genuine, material factual dispute for trial. Celotex Corp., 477 U.S. at 324. An issue of fact is material if, under the governing substantive law, it might affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a motion for summary judgment, the Court views the evidence, and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party, see Hairston v. Gainesville Sun Publ'g Co.. 9 F.3d 913, 918 (11th Cir. 1993), and credibility determinations are impermissible, see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000). Where reasonable minds could differ regarding inferences to be drawn from undisputed facts, summary judgment will be denied. See Miranda v. B & B Case Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust Co. v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). Ultimately, the question is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Ziegler v. Martin Cty. Sch. Dist., 831 F.3d 1309, 1318 (11th Cir. 2016) (quoting Anderson, 477 U.S. at 251-52).
"Speech by citizens on matters of public concern lies at the heart of the First Amendment . . . ." Lane v. Franks, 134 S.Ct. 2369, 2377 (2014). It is beyond dispute that, although public employees accept certain limitations on their freedoms, they retain a clearly established right to speak as citizens on matters of public concern. See, e.g., id.; Garcetti v. Ceballos, 547 U.S. 410, 420 (2006); Connick v. Myers, 461 U.S. 138, 151 (1983); Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). It is also beyond dispute that a public employer may not retaliate against public employees for speech that is protected by the First Amendment. See Rankin v. McPherson, 483 U.S. 378, 383 (1984); see also Alves v. Board of Regents of the Univ. Sys. of Ga., 804 F.3d 1149, 1159 (11th Cir. 2015). However, the First Amendment does not permit public employees "to `constitutionalize the employee grievance,'" Garcetti, 547 U.S. at 420 (quoting Connick, 461 U.S. at 154); moreover, speech that "owes its existence" to the public employee's professional responsibilities is not constitutionally protected, id. at 421; Moss v. City of Pembroke Pines, 782 F.3d 613, 618 (11th Cir. 2015).
To strike the proper balance between a public employee's First Amendment interests in free speech and the public employer's legitimate interests in efficiently discharging governmental functions, courts conduct a four-factor analysis and ask: (1) whether the employee engaged in speech as a citizen on a matter of public concern, and (2) whether the employee's First Amendment interests outweigh the public employer's efficiency interests; if so, (3) whether the speech was a "substantial motivating factor" in the termination decision, and (4) whether the employer can show that it would have terminated the employee even without the protected speech. See Moss, 782 F.3d at 617-18. Through the first two factors, the Court determines whether the employee's speech is constitutionally protected. See id. at 618. The final two inquiries, which "address the causal link" between protected speech and the termination decision, are questions of fact, "unless the evidence is undisputed."
Laird claims he was terminated for disclosing the decimal point memo and interviewing with the State Attorney's Office. The County asserts that disclosure of the memo was within the ordinary course of Laird's job duties because he was reviewing the file for LDC compliance, and therefore, his speech disclosing the contents of the file to his supervisor, is not protected. The Supreme Court stated in Garcetti and further explained in Lane that, "when public employees make statements pursuant to their official duties," they are not speaking as citizens, and the First Amendment does not insulate their communications from discipline. Lane, 134 S. Ct. at 2378; see also Garcetti, 547 U.S. at 421 (finding the views expressed by a public employee were not protected because they were expressed in a memo that was part of his ordinary job duties). "The critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's duties, not whether it merely concerns those duties." Lane, 134 S. Ct. at 2379 (finding that truthful testimony given under oath by a public employee, which was outside the scope of his ordinary job duties, was speech as a citizen, even though "the testimony relates to his public employment or concerns information learned during that employment").
Laird did not draft the memo or express any opinion on its contents. He found it in a file he was reviewing for compliance issues, indisputably within the ordinary course of his job duties, and immediately disclosed it to his supervisor. Laird's job duties included reviewing this existing subdivision file for compliance issues and obtaining his supervisor's interpretation. Laird argues that the scope of his duties did not include investigating potential fraud or reviewing recreational impact fees to determine whether the fees had been properly billed or paid. Nonetheless, his compliance review told him that something his department was responsible for was amiss, and it was something his supervisor should see. Garcetti instructs that the inquiry into whether a public employee is speaking as a citizen "is a practical one." 547 U.S. at 424 (noting that the employee's actual job duties are more indicative of the nature of speech than a job description alone); see also Moss, 782 F.3d at 618 (noting that factors such as the job description, where the speech occurred, and whether the speech concerned the employee's job are relevant but that no one factor is dispositive). Because Laird's disclosure of the error and potential wrongdoing to his supervisor was made in accordance with his ordinary duties of searching for and reporting compliance issues to his supervisor, and he followed the chain of command by immediately notifying Dyess, the disclosure is properly considered employee speech. See Wagner v. Lee Cty., No. 16-10576, 2017 WL 456430, at *11 (11th Cir. Feb. 2, 2017) (unpublished)
Moreover, Laird's conduct of submitting to voluntary interviews with the State Attorney's office during the investigation cannot be construed as protected speech. There is no indication in the record of what Laird was asked or what he said or communicated; there is nothing in the record to show that he knew anything other than what the decimal point memo said (which the County had already disclosed to the State Attorney); and there is certainly no indication that Jones or Meadows knew what Laird said in the interviews, even if they knew he attended them. His conduct of attending voluntary interviews, which the County encouraged him to do, is not itself protected speech.
However, even assuming that Laird's disclosure of the decimal point memo could be considered speech by a citizen on a matter of public concern,
Laird also relies on a handful of incidents that he asserts show that Jones and Meadows questioned his judgment after his disclosure of the memo, suggesting that this shows a retaliatory motive. Again, the Court disagrees. The record does not support this argument. Every additional incident Laird mentioned as showing that his judgment had been questioned is wholly unconnected to the disclosure of the memo and occurred either in 2014, before he disclosed the memo, or late in June 2015, nearly six months after the protected conduct (assuming disclosure of the memo was protected). Also, the record shows that all but the RV incident were instigated by citizen complaints, as documented in emails, not manufactured by Jones or Meadows.
The RV incident involved Meadows posting a question on Facebook, "What's up with the RV on the side of the road on 395?" This occurred in May 2015, which is still four months after Laird's disclosure of the memo—too long to raise a connection between this incident and the disclosure of the memo. Moreover, it reflects no retaliatory intent. Neither Meadows's comments nor any of the citizen comments on the post reference Laird, and he was not reprimanded for any conduct related to the incident. Laird testified only that his supervisor questioned him about it.
The record reflects that Jones made the termination decision based on Laird's failure to respond promptly and adequately about the setback when directed to do so in July 2015. Jones and Laird's supervisor Dyess signed the termination notice. Laird does not deny that the incident occurred. Whether termination was the correct or fair response in light of Laird's explanation or whether his supervisor was consulted in the decision is not at issue. See Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010) (noting courts "do not sit as super-personnel department[s]"). Whether Jones thought Meadows wanted Laird fired is also not at issue because nothing in the record suggests that Meadows wanted Laird fired due to his protected speech in January 2015. Assuming Laird's testimony and evidence as true, Meadows had wanted him fired since 2014 when she sent a "spy" from Code Enforcement, Anna Reichart, to watch for violations. When Laird was asked during his deposition what Meadows did to retaliate against his speech, he answered that he did not know. Laird also conceded that he knew of no connection between his conduct of disclosing the decimal point memo and Meadows, and he knew of no reason she would be irritated because he found it. There is simply no basis in the record to "constitutionalize" Laird's grievances over these additional incidents.
Laird also raises a public employee whistle-blower's retaliation claim against the County. Fla. Stat. § 112.3187, et seq. ("Whistle-blower's Act"). In relevant part, the Whistle-blower's Act protects public employees "who disclose information on their own initiative in a written and signed complaint," or "who are requested to participate in an investigation." Fla. Stat. § 112.3187(7). Retaliation claims under the Whistle-blower's Act require proof (1) that the employee engaged in statutorily protected activity; (2) that the employee suffered an adverse employment action; and (3) that a causal connection exists between the protected activity and the averse action. See Wagner, 2017 WL 456430, at *7. Public employee whistle-blower claims are analyzed under the familiar burden-shifting framework applicable in Title VII cases. See id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-805 (1973)); see also Rustowicz v. N. Broward Hosp. Dist., 174 So.3d 414, 419 (Fla. 4th DCA 2015). Thus, Laird must first establish by a preponderance of the evidence that he engaged in protected activity, at which point the burden shifts to the County to produce evidence of a legitimate, nondiscriminatory reason for the adverse employment action. If the County does so, Laird has the opportunity to demonstrate a question of fact as to pretext, that is, to show that the proffered reason was merely a pretext for retaliation. See Rustowicz, 174 So. 3d at 419-20. Also, the Act is remedial, "and should be liberally construed in favor of granting access to protection from retaliatory actions." Igwe v. City of Miami, 208 So.3d 150, 155 (Fla. 3d Dist. App. 2016) (citing Irven v. Dep't of Health & Rehabilitative Servs., 790 So.2d 403, 406 (Fla. 2001) (stating that "[section 112.3187(2)] could not have been more broadly worded")).
The County argues that Laird did not engage in protected activity because the "disclosure" consisted of him giving the "decimal point memo," drafted by Ward, to Laird's supervisor, Dyess, which does not satisfy the Act's disclosure requirements. To show he engaged in the protected activity of disclosure, Laird must have disclosed (1) protected information, (2) to a protected recipient, (3) in a protected manner. Wagner, 2017 WL 456430, at *7 (citing Fla. Stat. § 112.3187(5)-(7)). A jury could find that Laird disclosed protected information because the memo involved a suspected violation of law, gross mismanagement, or malfeasance. However, the County argues that Laird did not make the disclosure to a protected recipient because his supervisor, Dyess, was the Planning Director and not a chief executive officer or an "other appropriate local official" under the statute. Fla. Stat. § 112.3187(6); see also Stanton v. Fla. Dep't of Health, 129 So.3d 1083, 1084 (Fla. 1st DCA 2013) (noting "disclosure" to supervisor was not sufficient without showing the supervisor "possessed the necessary authority to investigate"). The Court agrees. Although Florida courts construe the term "other appropriate local official" broadly to include government entities empowered "to investigate complaints and make reports or recommend corrective action," Wagner, 2017 WL 456430, at *7 (citing Rustowicz, 174 So.3d at 423-25 (including an internal audit department)), Dyess was head of the Planning Department, which was not an investigative office. Also, Laird did not make a written and signed complaint, as required under Fla. Stat. § 112.3187(7) (protecting employees who disclose information in a written and signed complaint). Thus, Laird's act of finding the decimal point memo, drafted by Ward, and giving it to Dyess, is not a disclosure of protected information, to a protected recipient, in a protected manner under the Act.
Nevertheless, protected conduct under the statute also includes situations where employees "are requested to participate in an investigation" about any act or suspected act of gross mismanagement or malfeasance. Fla. Stat. § 112.3187(7). Laird is correct that the County does not address this prong of the statute. The record, viewed in favor of Laird, shows that he was twice interviewed at the request of the State Attorney during the investigation about the decimal point error memo. Laird voluntarily participated in the investigation. Thus, a jury could find that Laird engaged in conduct protected by the Act. Also, there is no dispute that Laird suffered an adverse employment action.
The County offered a legitimate nonretaliatory reason for Laird's termination. Laird, in turn, has offered evidence that that his termination was a pretext for retaliation, relying on the temporal proximity between his protected activity and the termination. To establish a causal connection, a plaintiff must show that the protected activity and the adverse action "are not completely unrelated." Rice-Lamar v. City of Fort Lauderdale, 853 So.2d 1125, 1133 (Fla. 4th DCA 2003) (quoting Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998)). Also, "the plaintiff must generally show that the decision maker was aware of the protected conduct at the time of the adverse employment action." Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1278 (11th Cir. 2008); see also Wagner, 2017 WL 456430, at *9. The County argues that Laird cannot raise an inference of retaliation or pretext because the memo was disclosed in January 2015, and Laird was not terminated until over seven months later, on July 21, 2015. But the County overlooks the interviews.
For purposes of the Whistle-blower's Act, Laird's interviews with the State Attorney are considered protected conduct, and the second interview occurred as late as May 2015, which was only approximately two months prior to Laird's termination. This close proximity is sufficient to create a genuine dispute of material fact, unless there is unrebutted evidence that the decision-maker was unaware of the protected activity. The record is not unrebutted on this issue. There is evidence that Jones was aware of the investigation generally, that Jones and Dyess spoke about it, and that Jones encouraged County employees to cooperate in the investigation. While a jury could find that this, together with the legitimate reason offered for termination, in fact, proves that Jones did not have a retaliatory motive, a jury could draw a contrary inference from Jones's knowledge of the State Attorney's interviews, the proximity of the termination decision to the State Attorney's interviews of Laird, and possible inconsistencies, such as the lack of supervisor input or progressive discipline for an employee with solid performance evaluations. Construing the Whistle-blower's Act broadly, and construing every inference in the record in Laird's favor, the Court finds that he has raised material questions of fact that preclude entry of summary judgment on this claim.
Accordingly:
1. The Board of County Commissioners of Walton County, Florida's Motion for Summary Judgment, ECF No. 45, is
2. Larry Jones's Motion for Summary Judgment, ECF No. 54, is
3. Cindy Meadows's Motion for Summary Judgment, ECF No. 48, is
4. Trial on Count I will be scheduled by separate Order.
