Alexander Metz v. Kevin Sasser
Filing
Opinion issued by court as to Appellant Alexander Metz. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. Motion for attorney's fees filed by Appellee Kevin Sasser is DENIED. [7726310-2]. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.
Case: 15-14709
Date Filed: 11/30/2016
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-14709
Non-Argument Calendar
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D.C. Docket No. 3:14-cv-00090-MCR-CJK
ALEXANDER METZ,
Plaintiff-Appellant,
versus
KEVIN SASSER,
in his official capacities as Chief, Destin Fire Control District,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
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(November 30, 2016)
Before WILLIAM PRYOR, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
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Alexander Metz, a former employee of the Destin Fire Control District,
appeals the summary judgment against his complaint of retaliation in violation of
his rights under the First and Fourteenth Amendments. 42 U.S.C. § 1983. Metz
complained that the District Chief, Kevin Sasser, fired him based on his mother’s
protected speech. The district court ruled that Metz failed to establish a prima facie
case of retaliation and, in the alternative, that Sasser provided legitimate,
nonretaliatory reasons for Metz’s termination that Metz failed to rebut as
pretextual. We affirm.
We review a summary judgment de novo and view the evidence in the light
most favorable to the nonmoving party. Starling v. Bd. of Cty. Comm’rs, 602 F.3d
1257, 1260 (11th Cir. 2010). Summary judgment is appropriate “if the movant
shows that 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). We can affirm on
any ground supported by the record. Thomas v. Cooper Lighting, Inc., 506 F.3d
1361, 1364 (11th Cir. 2007).
To establish a prima facie case of retaliatory termination for exercising a
right protected under the First Amendment, an employee must prove that he
engaged in a protected activity that played a substantial role in the adverse
employment action. See Starling, 602 F.3d at 1260 & n.1 (intimate association);
Boyce v. Andrew, 510 F.3d 1333, 1342–43 & n.12 (11th Cir. 2007) (freedom of
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speech). The employee can rely on evidence that his termination was the “intended
means” of retaliating for another employee’s protected conduct. See Thompson v.
N. Am. Stainless, LP, 562 U.S. 170, 178 (2011). We consider circumstantial
evidence in determining whether a protected activity is a substantial or motivating
factor in the employer’s conduct, including who initiated the termination
proceedings; whether the employer’s remarks connect the termination to the
protected activity; whether the employer had a motive to retaliate; whether the
termination followed on the heels of the protected activity; whether the employer
provided varied explanations for the termination; and whether the employee
established the reasons proffered for termination were pretextual. See Stanley v.
City of Dalton, Ga., 219 F.3d 1280, 1291 & n.20 (11th Cir. 2000).
Metz failed to offer any evidence that he was fired based on any retaliatory
animus. The record establishes that Sasser fired Metz because he was arrested for
driving while intoxicated on February 1, 2010, he failed to appear for work under
the false pretense that he was sick, and he embarrassed the District when a local
newspaper published damaging details about his arrest. After the District provided
him a written notice of termination, Metz responded by cursing at Sasser and Joe
D’Agostino.
Metz presented no evidence that his firing was related to constitutionally
protected activity by his mother. See Straub v. Proctor Hosp., 562 U.S. 411, 417–
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23 (2011). Metz’s mother, who also worked for the District, denounced local
officials, Sasser, and D’Agostino for violating the Florida open meetings law, after
which Sasser appointed Metz to a full-time position with the District. Following
Metz’s arrest three months later, D’Agostino called Metz a “milkman” and
commented that he did not work for his paycheck. Those remarks reflected
D’Agostino’s opinion that Metz had a poor work ethic and did not concern his
mother’s protected speech. And D’Agostino’s remarks did not contribute to Metz’s
termination. See id. at 418–19. Metz testified that he was terminated by Sasser, and
Sasser stated that he fired Metz because he had been arrested and had disparaged
his superior officers.
Metz also failed to present any circumstantial evidence that he was
terminated because of his mother’s protected speech. The accusations that Metz’s
mother made on September 21, 2009, were too remote to D’Agostino’s comments
in February 2010, or to Metz’s termination on March 5, 2010, to establish
causation based on temporal proximity. See Thomas, 506 F.3d at 1364. Metz’s
mother declared that she “engaged in protected conduct on several occasions” and
“made ongoing complaints” about officials’ misconduct, but she never stated that
she engaged in protected speech after Metz’s appointment to the full-time position
in October 2009. Sasser never mentioned the accusations to Metz, nor did Sasser’s
explanation for Metz’s termination ever vary. Despite Metz’s failure to disclose his
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offense immediately to his superiors and his misuse of sick leave, Sasser consulted
with legal counsel before disciplining Metz. And, even then, Sasser’s decision was
not final. As stated in the written notice of termination, the District “inten[ded] to
terminate” Metz, but he could appear before Sasser the next morning “to explain
why [he] should not be terminated.” Metz’s termination became final only after he
cursed at Sasser and D’Agostino.
Sasser had legitimate reasons to fire Metz that were wholly unrelated to his
mother’s protected speech. Metz’s offense eroded the ability of the District to
ensure it “maintain[ed] public confidence . . . [that it could] carry out its public
safety mission,” and his disparagement of his superior officers put in peril their
ability to “secure discipline, mutual respect, trust and particular efficiency among
the ranks.” See Anderson v. Burke Cty., Ga., 239 F.3d 1216, 1222 (11th Cir. 2001)
(internal quotations and citations omitted).
Metz also failed to prove that other District employees had been treated
more favorably than him. The four employees Metz identified were not similarly
situated to him. See Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316
(11th Cir. 2003). Unlike the other employees, Metz was serving a six-month
probationary period when he committed his offense, and he was the only employee
who was insubordinate to his superior officers. Three employees were cited for
driving while intoxicated, but their offenses were not reported to the public. And of
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those three employees, two were cited while working for Sasser’s predecessor, and
Sasser fired the third employee on learning of his misconduct. See Jones v.
Gerwens, 874 F.2d 1534, 1541 (11th Cir. 1989) (“[D]isciplinary measures
undertaken by different supervisors may not be comparable.”). A fourth employee,
whose theft of a pelican was reported in the newspaper, did not embarrass the
District by being identified as a District employee. See Burke-Fowler v. Orange
Cty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006) (“[T]he quantity and quality of [a]
comparator’s misconduct [must] be nearly identical” to evidence discriminatory
discipline.).
The district court did not err by entering summary judgment against Metz’s
complaint. Metz failed to establish a prima facie case of retaliation based on the
First and Fourteenth Amendments. Metz presented no evidence that connected his
termination to his mother’s protected speech.
We AFFIRM the summary judgment in favor of Sasser.
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