Lisa Wagner v. Lee County, Florida Board of C, et al

Filing

Opinion issued by court as to Appellant Lisa Wagner. Decision: Affirmed in part,Reversed in part, and Remanded. Opinion type: Non-Published. Opinion method: Signed. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.--[Edited 02/02/2017 by DC]

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10576
________________________
D.C. Docket No. 2:14-cv-00029-SPC-CM

LISA WAGNER, an individual,
Plaintiff - Appellant,
versus
LEE COUNTY, FLORIDA BOARD OF
COUNTY COMMISSIONERS,
GLEN SALYER,
an individual,
JAMES MOORE,
an individual,
CHRISTINE BRADY,
an individual,
JENNIFER BERG,
an individual,
Defendants - Appellees.

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________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 2, 2017)
Before HULL and MARTIN, Circuit Judges, and RESTANI, * Judge.
HULL, Circuit Judge:
Plaintiff Lisa Wagner appeals from the district court’s orders granting
defendants’ motions to dismiss and for summary judgment. After review of the
briefs and record and with the benefit of oral argument, we reverse in part, affirm
in part, and remand.
I. BACKGROUND
This appeal arises from an employment dispute. We first outline the
relevant facts and procedural history.
A.

Wagner’s Employment
From January 2012 to October 2013, Defendant Lee County, Florida Board

of County Commissioners (the “County”) employed Wagner in its Economic
Development Office (the “EDO”). The EDO is responsible for promoting,
coordinating, and monitoring economic development in the County. At the EDO,
Wagner worked as an Administrative Specialist, which is a salaried position for
*

Honorable Jane A. Restani, Judge for the United States Court of International Trade,
sitting by designation.
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which she was paid $1,269.23 on a biweekly basis. Susan Noe, the EDO’s
Manager of Business Assistance, hired Wagner and acted as Wagner’s direct
supervisor. In addition to Wagner, the EDO employed two other Administrative
Specialists and one Administrative Assistant. Performance reviews from 2012 and
2013 indicated that Wagner’s work exceeded expectations.
In her role as Administrative Specialist, Wagner performed tasks similar to
those typically performed by a secretary. 1 For example, Wagner was responsible
for attending meetings with County officials and investors, recording the meetings,
typing minutes for the meetings, and submitting the minutes for review. Wagner’s
other tasks included booking travel, maintaining files, assisting with website
updates, and working as a front desk receptionist.
Wagner also managed and maintained the EDO’s real estate database, which
served as a resource for businesses considering relocating to Lee County. Wagner
used this real estate database to perform property searches and find suitable
commercial real estate sites, and the EDO then used this information to prepare
proposals for companies relocating to the County. A work plan for Wagner
covering the 2012-13 fiscal year indicated that, with respect to the real estate
database, Wagner was responsible for training other administrative staff and
1

The parties presented conflicting evidence about the extent and nature of Wagner’s work
responsibilities. Wagner and Noe stated that Wagner had no independent decision making
authority or discretion and merely performed ministerial tasks. According to Glen Salyer,
however, who was the EDO’s Interim Director from September 2013 to January 2014, Wagner’s
position “relied heavily on discretion and independent judgment.”
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brokers on the maintenance and use of the database, creating maps as needed for
other EDO employees, coordinating with the County’s software developer
regarding necessary improvements, and coordinating with Florida Power and Light
to resolve issues that might arise from use of the database.
B.

Wagner’s Overtime Hours
The job posting for Wagner’s Administrative Specialist position listed her

working hours as 8:00 am to 5:00 pm Monday through Friday, but the posting also
noted that these hours could vary based on work needs. Wagner stated that she
worked more than forty hours a week on a regular basis—at least two or three
hours per week, but sometimes more. Noe confirmed that Wagner worked “a
tremendous amount of overtime on a regular basis – at least two (2) to three (3)
hours every week, but many times more than that as the amount of overtime
depended upon the project or assignment, such as after-hours meetings, which
were regular and frequent.” Noe stated, for example, that Wagner often typed
meeting minutes at home after regular work hours.
Several EDO employees testified that the County records did not accurately
reflect Wagner’s overtime work. Noe also stated that the County did not keep
track of any overtime worked by salaried employees. Both Eileen Schuman, who
worked as the EDO’s Office Manager and Fiscal Officer, and John Brock, who
worked as the EDO’s Research Analyst, stated that the County did not keep
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accurate records of overtime hours Wagner worked. Schuman and Brock also
confirmed that Wagner worked more than forty hours many weeks.
Throughout the period of her employment at the EDO, the County classified
Wagner as exempt from the overtime wages requirements of the Fair Labor
Standards Act (“FLSA”). The County’s employment records indicate that Wagner
did not work any overtime hours during her employment. Glen Salyer, who served
as the EDO’s Interim Director from September 2013 to January 2014, also said
that Wagner did not work more than forty hours during any week in September or
October 2013. Salyer did acknowledge, however, that he was aware of Wagner
staying at work past 5:00 pm on one occasion. Stephanie Figueroa, who worked as
EDO’s Manager of Human Resources during the months of September and
October 2013, stated that she was unaware of Wagner ever asking or complaining
about her FLSA exempt status during the time Wagner was employed at the EDO.
C.

EDO Audit
While working at the EDO, Wagner noticed what she perceived to be

potential illegal activity on the part of other EDO employees. For example,
Wagner noticed that the EDO was paying vendors for items that the County did not
receive and paying contractors for work that was not performed. Wagner reported
these issues to Noe.

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In 2013, the Lee County Clerk of Courts’ Internal Audit Department (the
“Internal Audit Department” or the “auditors”), which is an independent
organization unaffiliated with the EDO or County management, initiated an audit
of the EDO. James Moore, who was the EDO’s Director at the time, asked Noe to
oversee the audit and to respond to the Internal Audit Department’s questions.
Moore also asked Noe to “monitor” which EDO employees provided information
to auditors. According to Noe, there were five EDO employees, including
Wagner, who participated in the audit.
Noe stated that at some point during the audit, “the auditors asked [Noe] to
set up an appointment for [Wagner] to meet with [the auditors].” Noe further said
that she “directed [] Wagner to the auditors” and that “Wagner both spoke to [the
auditors] and provided a written statement.” In her deposition, Wagner was asked
whether she “[was] told that [she was] to participate anonymously in the audit,”
and Wagner replied: “I asked to and I now know that that [was not] done, but I did
ask. I did state that I was in fear of retaliation . . . and I did ask to remain
anonymous.” In her deposition, Noe also stated that she thought Wagner
participated in the audit anonymously. In the operative amended complaint,
Wagner alleged that her participation in the audit was voluntary.
During her meeting with the Internal Audit Department, Wagner disclosed
that she was asked by EDO employees to change official records, that some
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records were “stolen from [her] desk,” that EDO employees were “throwing out
materials that [the EDO] had paid thousands of dollars for,” that Wagner was
asked to hide certain materials, and that the EDO was “spending money on things
that just plain old [were not] done.”
On April 8, 2013, Wagner signed a document setting out a number of her
complaints regarding potential misconduct of EDO employees. Wagner’s written
complaint stated that her minute-taking recorder, which she used to take official
audio recordings of EDO meetings, was removed from her desk without her
permission. Wagner’s written complaint also explained that the recorder
reappeared on her desk three weeks later, but that the meeting minutes had been
deleted from the recorder. Wagner’s written complaint further noted how several
EDO-related records, some of which were confidential, were removed from her
desk without her permission.
As the County notes, Wagner’s written complaint is not addressed to anyone
and thus it is unclear from the face of Wagner’s written complaint whether Wagner
ever submitted it to the Internal Audit Department or anyone else. Noe did state,
however, that Wagner provided a written complaint to the Internal Audit
Department during the course of the audit. There is also some evidence indicating
that Wagner’s written complaint was found in the audit file.

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D.

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The Internal Audit Department Report
In August 2013, the Internal Audit Department released a report of its

findings (the “report”). Noe described this report as critical of the EDO.
For example, the report noted irregular activities within the Lee County
Industrial Development Authority (the “IDA”). Like the EDO, the IDA is a
County entity that works to enhance the County’s economic development. The
EDO provides office space and employees to the IDA. In 2010, the IDA approved
a loan in the amount of $75,000 to a business owned by the spouse of Jennifer
Berg, who worked as the EDO’s Marketing Manager. The report also stated that
County marketing business was routed to Berg’s husband’s company. These
transactions, according to the Internal Audit Department, were in violation of
Florida law regarding ethics and conflicts of interest.
In addition, the report indicated that the IDA disbursed approximately
$1,500,000 in County funds to a marketing firm, but that the marketing firm’s
invoices did not sufficiently itemize costs for the charges billed. The Internal
Audit Department was unable to find records of competitive bids associated with
this marketing contract. The report also noted that two EDO projects failed to
garner their expected job-development goals.
With respect to Wagner’s allegations regarding removal of records, the
report noted that “[r]ecords were removed from the desk of the employee who
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takes minutes of the IDA meetings,” that “[w]eeks later, the records were returned
with several minutes deleted,” and that “[o]ther confidential records were also
removed from the employee’s desk.”
Further, the Internal Audit Department’s confidential interviews with EDO
employees revealed morale issues within the EDO. The report did not identify by
name which EDO employees participated in the audit, but it did indicate that six
employees had participated and that one of them was the employee responsible for
taking meeting minutes. 2
E.

Moore’s Response to the Report
On July 19, 2013, Moore received a preliminary copy of the report, which

was previously leaked to the media. After receiving the report, Moore called a
meeting of the EDO staff and confronted them about their participation in the
audit. According to Wagner, during that meeting, Moore asked Wagner whether
she participated in the audit, and Wagner responded that she did. Noe stated,
however, that when Moore asked during this meeting who participated in the audit,
no one responded.

2

The report, which indicates that six employees participated in the audit, conflicts with
the testimony of Noe, who stated that five employees participated.
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On July 23, 2013, Moore submitted to Roger Desjarlais, the County
Manager, a memorandum regarding EDO budget reduction options for 2013-14. 3
The memorandum laid out a budget reduction goal for the 2013-14 fiscal year and
indicated that, for the EDO to meet its reduction goal, it would have to reduce its
number of staff. Moore suggested eliminating the following EDO staff positions:
Economic Research Analyst, Administrative Assistant, Business Development
Supervisor, Fiscal Officer, and Administrative Specialist. According to Noe, this
staff reduction proposal would have resulted in the termination of four of the EDO
employees who participated in the audit.
On July 26, 2013, the IDA held a meeting during which its members
discussed the audit. The minutes indicate that Wagner, Noe, Salyer, and Moore
were among those present for this meeting. The record contains both an audio
recording of this meeting and a transcript of the recording. When the topic of the
audit arose during this IDA meeting, someone made a comment or asked a

3

The County contends that this memorandum should not be considered on appeal because
it was not discussed in the briefing on the motions for summary judgment. But the County itself
introduced this memorandum into the summary judgment record as an attachment to its own
motion for summary judgment. Wagner also discussed this memorandum in her surreply to the
County’s motion for summary judgment. Because this evidence appears to be properly included
in the record, we see no reason not to consider it here.
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question regarding whether any EDO employees would be fired as a result of the
audit. 4
On August 5, 2013, Moore sent a response to the Internal Audit Department
regarding the report. Moore’s response addressed each of the findings in the
report.
F.

EDO Reorganization and Wagner’s Termination
On September 1, 2013, Moore retired from his position as the EDO’s

Director. On September 3, 2013, Salyer took over as the EDO’s Interim Director.
Around the time that he took over as Interim Director, Salyer met with Moore to
discuss “transitional matters.” When Moore and Salyer spoke about the audit, it
was clear to Salyer that Moore was unhappy about it.
The County asked Salyer to reorganize the EDO, taking into consideration
things like “workload assessment . . . what the core functions of the office were,
what level of service [the EDO would] provide, [and] budgetary restraints.”
Members of the County’s Human Resources staff, including Figueroa, helped

4

The parties submitted contradictory evidence regarding what was said during this
meeting and by whom. The transcript indicates that during the meeting, in reference to the audit,
Moore stated: “There are legs on this.” The transcript then indicates that, when asked by an
unidentified individual whether this meant that “[s]omebody [was] going to get fired,” Moore
responded: “No.” But according to Noe, who was present at the meeting and also reviewed the
audio tape, it was Moore who stated during this meeting that someone would get fired as a result
of the audit. Schuman and Brock also reviewed the audio tape and reached the same conclusion
as Noe.
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Salyer with this reorganization. Salyer had the ultimate authority to terminate
EDO employees.
On October 30, 2013, Salyer terminated Wagner from her employment with
the EDO. Salyer purportedly based this decision on several factors. Wagner was
one of three Administrative Specialists employed by the EDO and one of four total
administrative staff in the EDO. Salyer felt that there was insufficient workload to
justify the employment of this many administrative personnel. Of the
administrative employees working in the EDO, Wagner was the second-most
junior, and Salyer also terminated the most junior administrative employee. In
addition, the EDO was no longer using the real estate database on which Wagner
worked. Wagner’s position has not been refilled since her termination; her duties
have been eliminated or reassigned.
According to Salyer, Wagner’s termination was part of a larger effort to
reduce EDO expenditures. Salyer noted that in 2013, the County faced a multimillion dollar revenue deficit, and the County management directed the EDO to
reduce its spending. In connection with that budget reduction effort, in addition to
terminating Wagner, Salyer terminated three other EDO employees who had
participated in the audit.5 These were the same employees that Moore had

5

The other three terminated employees—Schuman, Brock, and Noe—filed a separate
lawsuit against the County, which resulted in a jury verdict in favor of all three plaintiffs. See
Schuman v. Lee Cty. Bd. of Cty. Comm’rs, No. 2:14-cv-121, 2016 WL 7232563 (M.D. Fla. June
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recommended terminating in his July 23, 2013 memorandum to the Desjarlais.
Salyer did not terminate any other EDO employees.
Noe stated, however, that there were no major budgetary issues at the time
of these terminations. According to Noe, the County had asked the EDO to reduce
its spending by only $70,000 and the EDO could have achieved that $70,000
reduction by eliminating one EDO position. In fact, Noe stated that the EDO’s
budget for the 2012-13 and 2013-14 fiscal years was already approved by County
management prior to Wagner’s termination and that the EDO’s funding actually
increased from the 2012-13 fiscal year to the 2013-14 fiscal year. County budget
records confirm that the “Economic Development” budget increased from
$1,220,913 in the 2012-13 fiscal year to $1,329,191 in the 2013-14 fiscal year.
Noe believed that there was no budgetary reason to terminate Wagner.
When asked whether he took the audit into account in making termination
decisions, Salyer stated that he did, but only to the extent that the report indicated
that the EDO failed to properly document certain payments it made. Salyer later
stated, however, that all of the audit findings were “of interest” to him. Salyer also
said, in relation to the audit, that he was aware of morale issues within the EDO—

14, 2016) (resolving various post-trial motions and ordering remittitur or a new trial on each
plaintiff’s damage award); see also Mem. Op. and Order, Schuman v. Lee Cty. Bd. of Cty.
Comm’rs, No. 2:14-cv-121 (M.D. Fla. Feb. 4, 2016), ECF No. 79 (denying the County’s motion
for summary judgment and noting that the Schuman case is related to Wagner’s case). To decide
this case, however, we rely solely on the record in this case.
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that there was “backstabbing and infighting” among employees and that employees
seemed “demoralized” by the audit outcome. In an effort to deal with the EDO’s
morale issues, Salyer and his team endeavored to bring the EDO employees
together as a more cooperative and cohesive group. Salyer felt that Wagner and
Noe were not ready, willing, or able to be productive team members.
Salyer maintains that he was unaware who participated in the audit or what
statements EDO employees made to the Internal Audit Department. Salyer
indicated that he “assumed that [all EDO employees] had participated in the audit,”
but that “this assumption was not based on fact.” Noe asserted that Salyer could
have determined from the audit report itself that Wagner was a participant—the
report identified the employee responsible for taking meeting minutes as an audit
participant and Wagner was the only employee responsible for taking such
minutes. Noe further stated that Salyer had a “close relationship” with Moore, who
had been vocal about his dissatisfaction with the audit.6

6

On November 22, 2013, Linda Doggett, the County Clerk of Courts, sent a letter to the
County Board of Commissioners voicing her concerns about the termination of Wagner and her
coworkers. Doggett noted that, if these employees were terminated because of their participation
in the audit, then the terminations could be in violation of Florida law.
Doggett’s letter was attached as an exhibit to Wagner’s surreply in opposition to the
County’s motion for summary judgment. The County contends that the letter should not be
considered on appeal because it is improper to introduce facts or arguments for the first time in a
reply brief. See Herring v. Sec’y, Dep’t of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005). Before
the district court ruled on the County’s motion for summary judgment, the County moved to
strike this letter from the record. The district court denied this motion to strike as moot in light
of its ruling on the cross-motions for summary judgment. We do not consider Doggett’s letter in
resolving this appeal.
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G.

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Procedural History
On January 21, 2014, Wagner filed her initial complaint against the County

and Salyer. On March 13, 2014, before any responsive pleading, Wagner filed an
amended complaint, this time naming the County, Salyer, Moore, Christine Brady,
and Berg as defendants.7 The amended complaint asserted the following claims:
deprivation of First Amendment rights under 42 U.S.C. § 1983 (Counts I, II, III,
IV, and V); civil violations of the Racketeer Influenced and Corrupt Organization
Act (“RICO”), 18 U.S.C. § 1964(c) (Counts VI, VII, and VIII); retaliation in
violation of Florida’s Public Whistleblowers Act (the “PWA”), Florida Statutes §
112.3187 et seq. (Count IX, asserted against only the County); and violation of the
FLSA overtime provisions, 29 U.S.C. § 207 (Count X, asserted against only the
County).
On May 12, 2014, defendants responded with a motion to dismiss. As to
Wagner’s First Amendment claims, the district court determined that these claims
failed because the allegations were insufficient to support the finding that Wagner
was speaking as a citizen when she complained about misconduct in the EDO. The

7

Brady was employed in the County’s Human Resources Department at the time of
Wagner’s termination. The claims at issue on appeal are only asserted against the County. The
individual defendants did not file briefs on appeal.
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district court accordingly dismissed Counts I, II, III, IV, and V of the amended
complaint.8
With respect to Wagner’s RICO claims, the district court determined that
Wagner insufficiently pled that defendants’ alleged racketeering activities
proximately caused her injuries. The district court thus dismissed Counts VI, VII,
and VIII of the amended complaint.
The district court denied the County’s motion to dismiss as to Wagner’s
PWA claim (Count IX) and FLSA claim (Count X), both of which Wagner
asserted against only the County. The litigation thus proceeded on Counts IX and
X of the amended complaint with the County as the sole remaining defendant.
On August 14, 2014, the County filed its first motion for summary
judgment as to Wagner’s FLSA claim. The district court denied this motion,
determining that there were genuine disputes of material fact regarding whether
Wagner’s work qualified as exempt from the FLSA’s overtime requirements.
On August 21, 2015, Wagner filed a motion for summary judgment as to
both her PWA claim and her FLSA claim. On September 4, 2015, the County filed
its own for summary judgment as to both claims. On January 27, 2016, the district
court denied Wagner’s motion and granted the County’s motion. On January 29,

8

On July 30, 2014, Wagner filed a motion seeking reconsideration of the district court’s
order to the extent that it dismissed Wagner’s First Amendment claims. The district court denied
this motion on August 21, 2014.
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2016, the district court entered judgment in favor of the County. On February 8,
2016, Wagner filed a Notice of Appeal.
On appeal, Wagner contends that the district court erred in granting
summary judgment in favor of the County on her PWA claim (Count IX) and her
FLSA claim (Count X). Wagner also argues that the district court improperly
dismissed her First Amendment claim against the County (Count I). We discuss
these claims in turn.9
II. PWA CLAIM (COUNT IX)
In Count IX of the amended complaint, Wagner claims that the County fired
her in retaliation for her participation in the audit, which constitutes a violation of
the PWA.
A.

Elements of a PWA Claim
Under Florida’s PWA, which prohibits retaliation against whistleblowers in

public employment, a municipal government entity may not take an adverse
9

We review de novo the district court’s grant of summary judgment, considering the
evidence and the inferences therefrom in the light most favorable to the nonmoving party. Ellis
v. England, 432 F.3d 1321, 1325 (11th Cir. 2005). Summary judgment is appropriate where the
evidence 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). There is a genuine dispute where
the evidence would allow a reasonable jury to find in favor of the nonmoving party. Ellis, 432
F.3d at 1325-26.
We also review de novo the district court’s grant of a motion to dismiss under Rule
12(b)(6), accepting the factual allegations as true and construing them in the light most favorable
to the plaintiff. Glover v. Liggett Grp., Inc., 459 F.3d 1304, 1308 (11th Cir. 2006). A formulaic
recitation of the elements of a claim is insufficient to survive a motion to dismiss. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007). The complaint survives a
motion to dismiss only where the factual allegations “plausibly suggest an entitlement to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 681, 129 S. Ct. 1937, 1951 (2009).
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personnel action against an employee in retaliation for the employee’s disclosure
of the municipal entity’s misconduct. Fla. Stat. § 112.3187. We analyze PWA
claims under the burden-shifting framework applicable to retaliation claims
brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e.
Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 950 (11th Cir. 2000); see
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801-05, 93 S. Ct. 1817, 182426 (1973). Thus, to prevail on a claim for retaliation under the PWA, the
employee must show (1) that she engaged in statutorily protected activity, (2) that
she suffered an adverse personnel action, and (3) that there is a causal connection
between the protected activity and the adverse personnel action. Olmsted v. Taco
Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998); see Rice-Lamar v. City of Fort
Lauderdale, 853 So.2d 1125, 1132-33 (Fla. Dist. Ct. App. 2003) (citing Siermenski
and holding that the Title VII retaliation framework applies in the context of a
PWA claim).
Once the plaintiff establishes a prima facie case of retaliation under the
PWA, the burden shifts to the employer to establish that there was a legitimate,
non-retaliatory reason for the termination. Sierminski, 216 F.3d at 950. The
burden then shifts back to the employee to show that the employer’s legitimate,
non-retaliatory reason is merely pretext for prohibited retaliation. Id.

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The parties do not dispute that Wagner’s termination constitutes an adverse
personnel action. See Fla. Stat. § 112.3187(3)(c) (providing that “adverse
personnel action” includes discharge). Below, we discuss whether the record
evidence creates jury issues as to whether Wagner engaged in protected activity
and whether a causal connection existed between Wagner’s protected activity and
her termination.
B.

Protected Activity
To establish that she engaged in protected activity under the PWA, Wagner

must show that she disclosed (1) protected information (2) to a protected recipient
(3) in a protected manner. See id. § 112.3187(5)-(7).
First, the information Wagner disclosed must fall within one of two
protected categories:
(a) Any violation or suspected violation of any federal, state, or local
law, rule, or regulation committed by an employee or agent of an
agency or independent contractor which creates and presents a
substantial and specific danger to the public's health, safety, or
welfare.
(b) Any act or suspected act of gross mismanagement, malfeasance,
misfeasance, gross waste of public funds, suspected or actual
Medicaid fraud or abuse, or gross neglect of duty committed by an
employee or agent of an agency or independent contractor.
Id. § 112.3187(5). The County does not dispute that the information Wagner
disclosed falls within the scope of protected information under the PWA. Given
that Wagner complained to Noe and the Internal Audit Department about the EDO
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paying for goods and services it did not receive, we conclude that the record
supports the finding that the information Wagner disclosed concerned suspected
“gross mismanagement, malfeasance, misfeasance, gross waste of public funds [or]
gross neglect of duty committed by an employee.” See id. Thus, a jury could find
that Wagner disclosed protected information under the statute.
Second, the information must be disclosed to a person or entity falling
within one of two protected categories:
[1] [A]ny agency or federal government entity having the authority to
investigate, police, manage, or otherwise remedy the violation or act,
including, but not limited to, the Office of the Chief Inspector
General, an agency inspector general or the employee designated as
agency inspector general under s. 112.3189(1) or inspectors general
under s. 20.055, the Florida Commission on Human Relations, and the
whistle-blower's hotline created under s. 112.3189 [or]
[2] [F]or disclosures concerning a local governmental entity,
including any regional, county, or municipal entity, special district,
community college district, or school district or any political
subdivision of any of the foregoing, the information must be disclosed
to a chief executive officer as defined in s. 447.203(9) or other
appropriate local official.
Id. § 112.3187(6) (emphasis added). Florida courts construe the term “other
appropriate local official” broadly to include a variety of governmental entities
“empowered to investigate complaints and make reports or recommend corrective
action.” See Rustowicz v. N. Broward Hosp. Dist., 174 So.3d 414, 423-25 (Fla.
Dist. Ct. App. 2015) (reviewing other Florida decisions and opinions issued by the
Florida Attorney General). The state appellate court in Rustowicz concluded that
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an internal audit department at a municipal hospital constituted an “appropriate
local official” within the meaning of the PWA. Id. at 416, 425.
Here, the record indicates that the Internal Audit Department is a
government entity within the Lee County Clerk of Courts’ office which is vested
with at least some authority to investigate complaints and make reports. We
accordingly conclude that a jury could find that Wagner made disclosures to a
protected recipient under the PWA.
Third, the disclosure must have been made in a protected manner. The PWA
provides that it protects, inter alia, employees (1) “who disclose information on
their own initiative in a written and signed complaint” or (2) “who are requested to
participate in an investigation, hearing, or other inquiry conducted by any agency
or federal government entity.” Fla. Stat. § 112.3187(7). The County contends that
the record does not support the findings that Wagner either made a voluntary
disclosure in a written, signed complaint or that Wagner was requested to
participate in the EDO audit. We disagree and conclude that the record evidence is
at least sufficient to indicate that there is a genuine dispute of material fact
regarding whether Wagner was requested to participate in the audit or whether
Wagner made a voluntary disclosure in a written, signed complaint.
The record reflects that Noe was the EDO employee responsible for
overseeing the audit and responding to the Internal Audit Department’s requests
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throughout the investigation. In addition, Noe stated that the Internal Audit
Department asked Noe to arrange for Wagner to meet with the auditors and that
Noe directed Wagner to the auditors. Though Wagner did aver that she asked to
participate in the audit anonymously, she did not aver that that she volunteered to
speak to the auditors in the first place. Wagner only alleged in the amended
complaint that her participation was voluntary. From the evidence submitted in
connection with the cross-motions for summary judgment, a reasonable jury could
conclude that Wagner was requested to participate in the audit.
Further, the record includes a written, signed complaint and Noe averred that
Wagner submitted a written complaint at some point during the investigation.
While the complaint was not addressed to any certain recipient, it was apparently
found in the audit file, thus creating jury issues as to what occurred.
We thus turn to the issue of whether there was a causal connection between
this protected activity and Wagner’s termination.
C.

Causal Connection
To establish a sufficient causal connection, Wagner must show that the

protected activity and the negative employment action are related. See Chapter 7
Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1260 (11th Cir. 2012) (quoting
Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1278 (11th Cir. 2008)). To
show that these two things are related, Wagner “must generally show that the
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decision maker was aware of the protected conduct at the time of the adverse
employment action.” Goldsmith, 513 F.3d at 1278 (quoting Brungart v. BellSouth
Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000)).
Close temporal proximity between the protected conduct and the termination
may be sufficient to create a genuine dispute of material fact regarding causation.
Brungart, 231 F.3d at 799. But where there is unrebutted evidence that the
decision maker was unaware of the protected activity, temporal proximity alone is
insufficient to create genuine dispute of material fact. Id.
Here, the record evidence is sufficient to create a genuine dispute of material
fact regarding the causal connection between Wagner’s participation in the audit
and her termination. It is true that Salyer himself was not involved in the audit and
that he stated that he was unaware of who participated in the audit. But this
evidence is not unrebutted. The audit report itself noted that the employee
responsible for taking meeting minutes participated, and Noe stated that Wagner
was the only employee responsible for taking such minutes. Though Salyer noted
that this assumption was not based on verifiable fact, Salyer did state that he
assumed that all EDO employees participated in the audit.
There is also evidence indicating that Moore was aware of Wagner’s
participation and that Moore and Salyer spoke about the audit when they met to
discuss transitional matters before Salyer took over as the EDO’s Interim Director.
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Salyer also heard Moore discuss the audit report and his negative impressions of it
in the July 26, 2013 IDA meeting. Moore recommended terminating the
employees who participated in the audit in his July 23, 2013 letter, just days after
receiving the audit report. Salyer terminated those same employees shortly after
taking over as Interim Director.
On this record, a jury could conclude that Wagner’s participation in the audit
and her termination were related. Because the evidence is sufficient to support the
elements of Wagner’s prima facie claim, we discuss the County’s proffered
legitimate, non-retaliatory reason for terminating Wagner.
D.

Legitimate, Non-Retaliatory Reasons
To carry its burden of showing that it terminated Wagner for a legitimate,

non-retaliatory reason, the County must only articulate a reason that “might
motivate” a reasonable employer to take the challenged employment action.
Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000). The County
proffers several such reasons.
The County produced evidence showing that County management tasked
Salyer with reducing EDO expenditures and that Wagner’s termination was in
furtherance of that effort. The evidence of record also shows that the EDO was no
longer using the real estate database on which Wagner worked and that the EDO’s

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administrative work needs were not sufficiently high to justify the employment of
four administrative employees.
These are non-retaliatory reasons that might have motivated a reasonable
employer to terminate Wagner. We thus consider whether the record evidence
indicates that these reasons were pretext for unlawful retaliation.
E.

Pretext
Because the evidence is sufficient to support the finding that the County

terminated Wagner for a legitimate, non-discriminatory reason, Wagner now bears
the burden of showing that these reasons were merely pretextual. To carry this
burden, Wagner must produce sufficient evidence from which a jury could
conclude that the proffered reasons did not actually motivate her termination. See
id. at 1024.
Wagner produced sufficient evidence to support the finding that the County
did not terminate her because of a need to reduce its expenditures. Noe stated that
the County in fact increased the EDO’s budget during the year of Wagner’s
termination and that the County had approved this budgetary increase before
Wagner’s termination. Noe also stated that the EDO could have achieved its
expenditure reduction goal by eliminating just one EDO employee. The record
shows that Salyer instead terminated several employees, which supports the
finding that the budget reduction was not the reason for Wagner’s termination.
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The evidence also supports the finding that Salyer was aware of the
Wagner’s audit participation and that Salyer’s predecessor was unhappy with the
audit and its results. Before retiring, Moore recommended terminating the
employees who participated in the audit and Salyer terminated those same
employees. Salyer assumed that all EDO employees participated in the audit and
he discussed the audit with Moore during their transitional meeting. Salyer was
also present at the July 26, 2013 IDA meeting during which the audit was
discussed. A reasonable jury could deduce, based on this evidence, that Wagner’s
audit participation was in fact the reason for her termination.
In sum, there are genuine disputes of material fact precluding summary
judgment on Wagner’s PWA claim. 10 We reverse the district court’s grant of
summary judgment to the County on Wagner’s PWA claim (Count IX) and remand
for further proceedings consistent with this opinion.
III. FLSA CLAIM (COUNT X)
In Count X of the amended complaint, Wagner claims that the County
violated the FLSA by failing to compensate her for time she worked in excess of
forty hours per week.
10

Because we conclude that there is a genuine dispute of material fact, we need not
address Wagner’s alternative argument that the district court erred by granting summary
judgment on grounds not raised in the cross-motions for summary judgment. We note, however,
that the County did argue in its summary judgment briefing that Wagner’s activity was not
protected both because Wagner did not submit a written, signed complaint to the auditors and
because Wagner volunteered to participate.
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Under the FLSA overtime provisions, where a covered employee works
more than forty hours in one week, the employer must pay the employee overtime
compensation for each excess hour at a rate equal to one and a half times the
employee’s regular rate of pay. 29 U.S.C. § 207(a)(1). To establish that she is
entitled to overtime pay under this provision, Wagner must show (1) that she
worked unpaid overtime and (2) that the County knew or should have known about
this overtime work. Allen v. Bd. of Pub. Educ., 495 F.3d 1306, 1314-15 (11th Cir.
2007). 11
Though the employee bears the initial burden of showing that she performed
overtime work for which she was not compensated, her burden is relaxed where
the employer failed to keep accurate time records. Lamonica v. Safe Hurricane
Shutters, Inc., 711 F.3d 1299, 1315 (11th Cir. 2013). Under those circumstances,
the employee carries her burden if she establishes that she performed work for
which she was not compensated and if she comes forward with “sufficient
evidence to show the amount and extent of that work as a matter of just and
reasonable inference.” Id. (quoting Anderson v. Mt. Clemens Pottery Co., 328
U.S. 680, 687, 66 S. Ct. 1187, 1192 (1946)). The burden then shifts to the
11

The FLSA also provides that the overtime-wages mandate does not apply for an
employee working in a bona fide administrative capacity. 29 U.S.C. § 213(a)(1). The employer
bears the burden of proving that this exemption applies. Abel v. S. Shuttle Servs., Inc., 631 F.3d
1210, 1212 (11th Cir. 2011). The district court never reached or ruled on the exemption issue,
and the County does not discuss exemption on appeal. Thus, we only address whether the
evidence supports the finding that Wagner adequately made out the elements of her prima facie
case. The exemption issue should be determined by the district court in the first instance.
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employer to produce evidence to establish the exact number of hours the employee
worked or to negate the reasonableness of the inference to be drawn from the
employee’s evidence. Id.
Here, the evidence indicates that the County failed to keep an accurate
record of Wagner’s overtime work. Those records do not suggest that Wagner
worked any overtime throughout her employment, but there is testimony tending to
show that she did work overtime on an almost weekly basis. Even Salyer admitted
to seeing Wagner stay past 5:00 pm on one occasion, but the County’s official
records indicate that Wagner never stayed past 5:00 pm.
Because the County records do not accurately reflect Wagner’s working
hours or the amount of overtime she worked, Wagner must only produce evidence
showing the amount of overtime she worked as a matter of reasonable and just
inference. Id. Wagner and Noe stated that Wagner worked at least two to three
hours of overtime each week. Noe, Brock, and Schuman all confirmed that
Wagner worked overtime on a regular basis and that the County did not keep track
of overtime hours Wagner worked. Noe testified, for example, that Wagner often
worked overtime completing meeting minutes from home. From this evidence, a
jury could find that Wagner worked two to three hours of overtime most weeks
during her employment and could arrive at a reasonable estimate of the total
number of overtime hours for which Wagner is due compensation. See id.
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Furthermore, the County failed to carry its burden of negating the reasonable
inference to be drawn from Wagner’s evidence. See id. Though Salyer did testify
that Wagner did not work overtime on a regular basis, this evidence merely creates
a genuine dispute of material fact regarding Wagner’s overtime. The County
records do not establish with any certainty whether Wagner worked overtime
hours, and the testimony of Salyer is directly contradicted by the testimony of
Wagner, Noe, Brock, and Schuman. If Wagner is not exempt, 12 there is at least a
genuine dispute of material fact regarding whether Wagner is due overtime
compensation under the FLSA, rendering summary judgment unavailable.
We accordingly reverse the judgment of the district court to the extent that it
granted summary judgment to the County on Wagner’s FLSA claim for failure to
identify the precise number of overtime hours worked. We remand to the district
court for further proceedings on this FLSA claim.
IV. FIRST AMENDMENT CLAIM (COUNT I)
In Count I of the amended complaint, Wagner claims, pursuant to 42 U.S.C.
§ 1983, that the County unlawfully discharged her in retaliation for exercising her
First Amendment free speech rights during the EDO audit. The district court
dismissed this claim pursuant to Rule 12(b)(6).

12

See note 11, supra.
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After review, we cannot say that the district court erred in dismissing
Wagner’s First Amendment claim. Wagner’s allegations only support the
conclusion that Wagner’s statements to the auditors were made “in accordance
with or in furtherance of the ordinary responsibilities of her employment.” See
Alves v. Bd. of Regents of the Univ. Sys. of Ga., 804 F.3d 1149, 1162 (11th Cir.
2015). Because Wagner made these statements in accordance with her ordinary
duties as an EDO employee, she was speaking in her capacity as an employee
rather than in her capacity as a citizen and thus cannot prevail on a claim for First
Amendment retaliation. See id. at 1160; see also Lane v. Franks, 573 U.S. __, __,
134 S. Ct. 2369, 2379 (2014); Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S. Ct.
1951, 1958 (2006). Accordingly, we affirm the district court’s dismissal of
Wagner’s First Amendment retaliation claim.
V. CONCLUSION
Based on the foregoing, we affirm in part, reverse in part, and remand. As to
the dismissal of Wagner’s First Amendment retaliation claim (Count I), we affirm.
With respect to the district court’s order granting summary judgment in favor of
the County on Wagner’s PWA claim (Count IX) and FLSA claim (Count X), we
reverse and remand for further proceedings consistent with this opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

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