LAIRD v. BOARD OF COUNTY COMMISSIONERS, WALTON COUNTY et al
Filing
58
ORDER granting in part and denying in part 45 Motion for Summary Judgment by Walton County; granting 48 Motion for Summary Judgment by Cindy Meadows; and granting 54 Motion for Summary Judgment by Larry Jones. Signed by CHIEF JUDGE M CASEY RODGERS on March 26, 2017. (aow)
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION
HARRY A. LAIRD, IV,
Plaintiff,
v.
Case No. 3:15cv394-MCR-CJK
BOARD OF COUNTY COMMISSIONERS,
WALTON COUNTY FLORIDA, et al.,
Defendants.
__________________________________/
ORDER
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.
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I.
Background1
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.2 From 2010
through 2012, he worked as a communications coordinator in the County
Administration Department. He became a certified floodplain administrator and
began working as Flood Plain Manager in 2012. As Flood Plain Manager, Laird was
responsible for reviewing building permit applications to determine whether they
complied with the County’s Land Development Code (“LDC”), the County’s
Comprehensive Plan, and the flood plain requirements of the FEMA (Federal
Emergency Management Act).
His duties as Flood Plain Manager included
1
For the limited purposes of this summary judgment proceeding, the Court views “the
evidence and all reasonable inferences drawn from it in the light most favorable to the nonmoving
party,” which in this case is the Plaintiff. Martin v. Brevard County Pub. Sch., 543 F.3d 1261,
1265 (11th Cir. 2008) (internal marks omitted).
2
See ECF No. 55-32, at 14-15 (Dep. of Mac Carpenter, Planning Manager, at 13-14). Mac
Carpenter, Planning Manager, reported to Dyess and had been Laird’s supervisor in the Planning
Department when Laird was a Planner.
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reviewing proposed building plans of projects impacting conditions related to
floodplains, wetlands, coastal dunes, and coastal dune lakes, and determining
whether the County’s height, setback, and parking requirements were met. He also
reviewed files of subdivisions that were developed before the County’s LDC was
enacted for the purpose of determining whether they were in compliance with flood
plain and coastal dune lake requirements.
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.
A.
The Decimal Point Memo
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
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for improper permitting.3 Laird did not have personal knowledge of this incident
and did not suspect Ward of wrongdoing. Nonetheless, because of the large amount
of the error reported in the 2008 memo, he wondered whether someone senior to
Ward might have benefitted, and so he gave the memo to his supervisor, Dyess.4
Dyess told Laird to put it in the file, and he would take care of it. Dyess then asked
the County Attorney Mark Davis to look into the matter and also forwarded the
memo to the County’s finance department.
The County contacted the State
Attorney’s Office, which began an investigation into the matter that concluded in
September 2015. 5
Laird testified that during the investigation, Mr. Jones and Mr. Davis held a
department-wide meeting in which they encouraged employees to cooperate with
3
The record reflects that Dyess (who did not work for the County in 2008) recommended
the termination of Ward’s employment in September 2011 on grounds that she had engaged in
improper permitting procedures, stating that she “knowingly issued approvals without following
proper protocol,” citing the Board of County Commissioner’s Policy 18.2 (insubordination, failure
to perform in a satisfactory manner and incompetence or negligence). ECF No. 55-10.
4
Laird testified that a review of this type of fee ordinarily would be handled by the Planner
and the Project Manager, and he would not typically be involved. However, Laird’s review of the
file that day was pursuant to his duties, i.e., to determine whether the subdivision had been
approved in error or whether the lots would be impacted by the LDC in a manner that would require
an interpretation or review by his supervisor, Dyess.
5
Ultimately, on September 4, 2015, a Grand Jury indicted a former Planning Director for
perjury during the investigation process. As to the memo itself, the Grand Jury found only that
the loss of revenue was due to error and that the failure to collect this fee and another fee attributed
to a similar error totaled almost $800,000. The Grand Jury found that this was “egregious and
unacceptable” and recommended that the Planning Department implement various levels of review
and be permitted to purchase software to calculate and track fees accurately.
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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).
B.
Laird’s Termination
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
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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 fivefoot 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. 6 None of them had seen a variance issued outside of a Board
of Adjustment process and without notice to adjoining property owners.
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
6
Laird admits that there is a document showing that someone had made a complaint about
the setback. Laird said Stephanie Manning from Code Enforcement had spoken to him about the
complaint, although it is unclear from the record when that occurred. According to Laird, he had
explained to her that Chapter 8 of the LDC authorized a hardship exception in this circumstance.
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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. 462. Attached to the form was a statement by Jones describing the incident involving
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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. 7
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
7
For instance, Jones mentioned an incident when Laird had told a constituent they were
“screwed,” and the person had written to complain; an incident when Jones learned from
constituents of an issue regarding an RV in which Laird may have given advice contrary to the
Code; and another incident of a house permitted with a second floor that extended into setbacks
and the owners had to request a variance. Jones testified that these incidents reflected a pattern of
disregard, contrary to the County’s best interests.
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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.8 Dyess
testified that he had encouraged the Planning Department employees to use their
professional judgment to interpret the Code themselves when dealing with permits.9
Although Dyess suggested he might have been more lenient than Jones, he signed
the termination notice as Laird’s direct supervisor and acknowledged it was Jones’s
decision and that Jones had the authority to terminate Laird.
According to Laird, Commissioner Meadows was behind the termination
decision.10 He testified that Stephanie Manning, who worked in Code Enforcement
at the time, told him that Meadows had sent another Code Enforcement officer, Anna
Reichart, to “spy” on Laird in late 2014, searching for a reason to have him fired.
8
The County Attorney Davis testified that this setback incident is when he learned that
“variances were being granted by staff,” and he issued an opinion that hardship exceptions also
must proceed through the Board of Adjustment process, like variances.
9
A former employee, Jonathan Bilby, had worked as Flood Plain Manager in the Planning
Department with Dyess before Laird took the position. Bilby testified that that the Walton County
LDC includes provisions that allow staff to grant setback reductions as a hardship exception in
certain instances without going through the formal variance procedure. Bilby said he had done
this from time to time while Dyess was supervisor and was never disciplined or fired for doing so.
10
Notably, Laird testified that he did not know of any connection between his finding the
“decimal point memo” and Meadows.
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Manning offered hearsay testimony that Reichart told her Laird and Dyess “were on
their way out the door. They were going to be fired.” ECF No. 55-4, at 55. Manning
believed that Meadows sent Reichart to “spy” on them. According to Laird, another
County Commissioner, Celia Jones, told him that she was sorry about his termination
and said Mr. Jones wished he wouldn’t have done it, except that he knew Meadows
wanted Laird terminated, so he took the opportunity to do so with the setback issue.
Commissioner Jones (no relation to the County Administrator, Mr. Jones) confirmed
this in her own testimony, saying she had spoken with Mr. Jones about the
termination because she felt that his evaluation of Laird was harsh.11 She testified
that Mr. Jones told her Meadows “had been wanting to get rid of Hal [Laird] for a
long time. I remember that exactly.” ECF No. 55-7, at 6 (Celia Jones Dep. at 5).
She testified, however, that the termination decision was made by Mr. Jones, not
Meadows.
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.
11
She expressed the opinion that, “if you terminate someone, you need to make sure that
you don’t, you know, that it’s not so harsh that they can’t get a job somewhere else and I did tell
Larry that I remember.” ECF No. 55-7.
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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.
C.
Additional Incidents
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
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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
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No. 55-22. In his verified declaration, Laird said that he did not scold Mrs. Helms
for calling the Commissioner’s office.
D.
Grand Jury Proceedings
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 midAugust, 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.12 The Grand Jury indicted Patsy Blackshear (who had been Melissa Ward’s
supervisor) with two counts of perjury for lying during the investigation and to the
Grand Jury. The Grand Jury also issued a report, which was unsealed on September
24, 2015. In the report, the Grand Jury addressed various other internal matters and
offered recommendations for changes that needed to be made in administration; in
organizing, following the chain of command, and management of the Planning
Department; and in the LDC and the auditing process. The report also included
concerns about the roles of Mr. Jones and Commissioner Meadows, who were
criticized for being directly involved in day to day county operations, including their
12
Laird received the subpoena before his termination but did not actually testify before the
Grand Jury until after his employment had been terminated. The Grand Jury report issued on
September 4, 2015.
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involvement in the hiring and firing of Planning Department employees and
allowing direct supervisors little input. The report states that the Grand Jury heard
testimony that Meadows was involved in a code enforcement issue in which normal
procedures were not followed and that Meadows and Jones terminated a Planning
Department employee with little or no input from the department director and
without following the County’s progressive disciplinary procedures: “Evidence
indicates that Commissioner Meadows wanted this employee terminated and that
Larry Jones directly ordered the termination.” ECF No. 55-26. The report
recommended Jones and Meadows be reprimanded for not following chain of
command and department policies. Laird felt that he was the employee referenced
who was terminated without the proper progressive disciplinary procedures as
described in the report. 13
II.
Discussion
A.
Summary Judgment Standard
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
13
Testimony by Jones confirmed that Laird is the only person that Jones directly
terminated.
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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
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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).
B.
First Amendment Retaliation Claims
“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).
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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.”14 Id.
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
14
In the ordinary First Amendment retaliation context, where speech by a public employee
is not involved, a plaintiff must prove (1) that his “speech was constitutionally protected; (2) that
he “suffered adverse conduct that would likely deter a person of ordinary firmness from engaging
in such speech;” and (3) that a “causal relationship” existed “between the adverse conduct and the
protected speech.” Castle v. Appalachian Tech. Coll., 631 F.3d 1194, 1197 (11th Cir. 2011).
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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
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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)15 (finding that speech—voluntarily disclosing
potentially illegal conduct of co-employees to an auditor—by an employee of the
15
While unpublished opinions are not considered binding, they may be considered as
persuasive authority. See 11th Cir. R. 36-2; see also United States v. Futrell, 209 F.3d 1286, 1289
(11th Cir. 2000).
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Economic Development Office, who regularly performed secretarial tasks, was part
of her job and not protected); see also Phillips v. City of Dawsonville, 499 F.3d 1239,
1242-43 (11th Cir. 2007) (finding no protected speech where a city clerk disclosed
misconduct by the mayor; although the clerk’s enumerated duties did not include
reporting misconduct of the mayor, it was within her official duties to inquire about
potentially inappropriate use of city resources). The undisputed record shows that
“the main thrust” or reason for Laird’s disclosure of the memo to Dyess, Alves, 804
F.3d at 1166, was that he felt it important to disclose the memo to his supervisor
because it showed a noncompliance issue regarding the subdivision he was
reviewing, and the error involved a large amount of public money. 16 In doing so, he
engaged in speech with his supervisor within his ordinary duties as a public
employee, not citizen speech.
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
16
The Grand Jury report later criticized the Planning Department for not always following
the chain of command and not implementing appropriate supervisory review (which led to this
decimal point error going undiscovered for ten years), and thus, Laird’s conduct is in full
accordance with how the Grand Jury recommended the Department should function.
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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, 17 and that,
under the second inquiry of Moss, 782 F.3d at 617-18, there is no County interest in
efficiency that would outweigh the speech, then the question would turn on the
causal link. The Court finds alternatively that the claim fails at this third inquiry
because the record is devoid of any causal link between Laird’s speech and his
termination. Laird relies on temporal proximity to establish causation, and to do so,
he points to his interviews with the State Attorney. Close temporal proximity
between protected conduct and an adverse employment action ordinarily can supply
17
There is no dispute that the subject of the memo was a matter of public concern, as it
showed a mistake that impacted public funds, implicated potential mismanagement by the County,
and suggested the possibility of malfeasance by a County employee. See Bryson v. Waycross, 888
F.2d 1562, 1566 (11th Cir. 1989) (“[A] core concern of the [F]irst [A]mendment is the protection
of the ‘whistle-blower’ attempting to expose government corruption.”). However, “the relevant
inquiry is not whether the public would be interested in the topic of the speech at issue, it is whether
the purpose of the employee’s speech was to raise issues of public concern” as a citizen. Alves,
804 F.3d at 1167 (internal quotation and alteration omitted).
Case No.: 3:15cv394-MCR-CJK
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sufficient circumstantial evidence to create a genuine issue of material fact as to the
necessary causal link. See Brungart v. BellSouth Tele., Inc., 231 F.3d 791, 799 (11th
Cir. 2000). “But mere temporal proximity, without more, must be ‘very close.’”
Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (quoting
Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). Here, as the County
argues, seven months passed between the disclosure of the decimal point memo and
Laird’s termination, and the Court finds this span of time too great to raise an
inference of retaliation. See id. at 1364 (noting a three to four month difference is
not enough to raise an inference of retaliation). Also, it is clear on the record that the
County itself disclosed the memo to the investigatory authorities in January 2015.
Laird’s assertion that his interview with the State Attorney supplies the necessary
temporal proximity for the First Amendment claim fails because the Court has found
that the conduct of attending the interview is not protected speech.
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
Case No.: 3:15cv394-MCR-CJK
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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 superCase No.: 3:15cv394-MCR-CJK
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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. 18 See Garcetti, 547 U.S. at 420. Laird has shown no evidence that his
termination was based on or substantially motivated by protected speech, and thus,
even assuming his speech was protected, the analysis fails at the third factor. See
Carter v. City of Melbourne, Fla., 731 F.3d 1161, 1170 (11th Cir. 2013) (finding
18
Again, the question is not whether Laird was a good employee, whether he had a good
reason for the setback exception, or whether Jones’s termination decision was fair or mistaken.
Nor is the question whether Meadows had a reason to want Laird terminated, in the absence of any
evidence that she wanted him terminated due to speech. The Court “does not sit as a superpersonnel department” and it is not the Court’s role “to second-guess wisdom of an employer’s
business decisions . . . as long as those decisions were not made with a [retaliatory] motive.”
Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010) (internal
quotations omitted). The sole question boils down to whether Laird was terminated for protected
speech, which there is no evidence of.
Case No.: 3:15cv394-MCR-CJK
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that the third prong of the free speech analysis was not met where the employee
could not show “that the disciplinary and personnel decisions against him were
motivated by his speech activities, rather than the misconduct with which he was
charged”).19
C.
Florida Public Employee’s Whistle-blower’s Act
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, 801805 (1973)); see also Rustowicz v. N. Broward Hosp. Dist., 174 So. 3d 414, 419 (Fla.
19
Because Laird’s First Amendment claim fails, the Court finds it is unnecessary to reach
the qualified immunity issue.
Case No.: 3:15cv394-MCR-CJK
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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.
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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).
Case No.: 3:15cv394-MCR-CJK
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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.” RiceLamar 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.
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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.
Case No.: 3:15cv394-MCR-CJK
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Accordingly:
1.
The Board of County Commissioners of Walton County, Florida’s
Motion for Summary Judgment, ECF No. 45, is DENIED as to the Public Employee
Whistle-blower Claim (Count I) and GRANTED as to the First Amendment
Retaliation Claim (Count III).
2.
Larry Jones’s Motion for Summary Judgment, ECF No. 54, is
GRANTED.
3.
Cindy Meadows’s Motion for Summary Judgment, ECF No. 48, is
GRANTED.
4.
Trial on Count I will be scheduled by separate Order.
DONE AND ORDERED this 26th day of March, 2017.
M. Casey Rodgers
M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE
Case No.: 3:15cv394-MCR-CJK
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