BUTLER v. JOHNSON et al
Filing
81
ORDER GRANTING SUMMARY JUDGMENT IN PART RE 56 . Signed by JUDGE ROBERT L HINKLE on 1/9/17. (sms)
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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
TIMOTHY BUTLER,
Plaintiff,
v.
CASE NO. 4:16cv222-RH/CAS
TORREY JOHNSON et al.,
Defendants.
__________________________________/
ORDER GRANTING SUMMARY JUDGMENT IN PART
The plaintiff Timothy Butler is a correctional officer who made statements
about his employer, the Florida Department of Corrections, in a television
interview and in testimony to a Florida Senate committee. He says he suffered a
wide range of adverse treatment in retaliation for the statements. He asserts a claim
under the First Amendment and 42 U.S.C. § 1983 against three defendants: his
warden Christopher Hodgson; another officer in the chain of command, Colonel
Torrey Johnson; and an investigator in the Inspector General’s office, Darryl
Cherry.
Case No. 4:16cv222-RH/CAS
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The defendants have moved for summary judgment. This order grants
summary judgment for Mr. Cherry but denies summary judgment for Mr. Hodgson
and Mr. Johnson. This order briefly sets out the basis for the ruling. Trial is
imminent. A more complete description of the facts and governing law would
serve no purpose.
I
A four-stage analysis governs a public employee’s First Amendment claim.
See, e.g., Moss v. City of Pembroke Pines, 782 F.3d 613, 617-18 (11th Cir. 2015).
First, the court must determine whether the employee spoke as a citizen on a matter
of public concern. Id. at 617. If so, then the court weighs “the employee’s First
Amendment interests against the employer’s interest in regulating the employee’s
speech ‘to promote the efficiency of the public services it performs through its
employees.’ ” VanDeWalle v. Leon Cty. Fla., No. 16-10129, 2016 WL 4709079, at
*3 (11th Cir. Sept. 9, 2016) (quoting Moss, 782 F.3d at 618.). “These first two
matters are questions of law that determine whether the employee’s speech is
protected by the First Amendment.” Id. (citing Moss, 782 F.3d at 618.).
If the employee satisfies the first two stages, he must show that he suffered
an “adverse employment action” and that his protected speech “was a substantial
motivating factor” in the employer’s decision to take that action. Id. at *3. “Once
that showing has been made, the burden then shifts to the employer to prove, by a
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preponderance of the evidence, that it would have terminated the employee even in
the absence of [the] protected speech.” Id.
For this purpose—that is, for a retaliation claim as distinguished from an
original discrimination claim—an “adverse employment action” is an action that
“well might have ‘dissuaded a reasonable worker from making or supporting a
charge of discrimination.’ ” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 68 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir.
2006)). Older Eleventh Circuit cases adopting a more exacting standard are no
longer good law. See Nash-Utterback v. Sch. Bd. of Palm Beach Cty., No. 11-cv80513-JMH, 2012 WL 12865852, *15 (S.D. Fla. June 8, 2012).
II
On a summary-judgment motion, disputes in the evidence must be resolved,
and all reasonable inferences from the evidence must be drawn, in favor of the
nonmoving party. The moving party must show that, when the facts are so viewed,
the moving party “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A summary-judgment
motion cannot be used to resolve in the moving party’s favor a “genuine dispute as
to any material fact.” Fed. R. Civ. P. 56(a).
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III
Mr. Butler plainly spoke on matters of public concern. His purpose was to
bring important issues to the attention of the public and the Legislature. His
interest in speaking outweighed the Department’s interest in controlling the speech.
In short, he engaged in protected speech.
Most of the consequences Mr. Butler says he suffered do not rise to the level
of an adverse employment action. An example is Mr. Cherry’s investigation of Mr.
Butler’s alleged insubordination. Any correctional officer who is insubordinate
may be investigated. The record establishes without genuine dispute that Mr.
Butler refused to answer a superior officer’s questions and thus was at least
arguably insubordinate; there were good grounds for an investigation. The risk that
acts of possible insubordination may be investigated is present whether or not an
officer exercises First Amendment rights, so the risk of such an investigation
would not deter a reasonable officer from speaking out. Mr. Cherry is entitled to
summary judgment both because conducting the investigation did not violate Mr.
Butler’s rights and because the investigation was not an adverse employment
action.
But when the record is properly viewed in the light most favorable to Mr.
Butler, the record would support a finding that he suffered other consequences that
do rise to the level of an adverse employment action. He lost overtime. He was not
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warned of an inmate’s threat to attack him. And when he called for backup during
a disturbance, officers were slow to respond.
If Mr. Hodgson and Mr. Johnson caused these things to occur in retaliation
for Mr. Butler’s protected speech, their actions violated the First Amendment.
IV
Qualified immunity applies to damages claims against public officers and
protects “all but the plainly incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335, 341 (1986). See generally Mullenix v. Luna, 136 S.
Ct. 305 (2015); Carroll v. Carman, 135 S. Ct. 348 (2014); Hope v. Pelzer, 536
U.S. 730 (2002); Harlow v. Fitzgerald, 457 U.S. 800 (1982). Thus a public officer
may be held individually liable only if the officer’s conduct violates clearly
established law.
Whether a public employee’s speech is protected is often unclear. Here,
though, Mr. Butler’s legislative testimony was a paradigm of protected speech. His
television interview was also protected as a matter of clearly established law.
The denial of pay—in this case, overtime—is an adverse employment
action. This is so as a matter of clearly established law. See, e.g., Shannon v.
BellSouth Telecomms., Inc., 292 F.3d 712, 716 (11th Cir. 2002) (holding that the
denial of overtime was an adverse employment action); Bass v. Bd. of Cty.
Comm’rs, 256 F.3d 1095, 1118 (11th Cir.2001), overruled in part on other
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grounds by Crawford v. Carroll, 529 F.3d 961 (11th Cir. 2008) (stating, in a case
involving the denial of overtime and other actions, that “conduct that alters an
employee’s compensation . . . does constitute an adverse action.”).
Similarly, nobody could reasonably assert that it is permissible to retaliate
for an officer’s protected speech by ignoring the officer’s legitimate call for
backup during a disturbance or by withholding from an officer information about
an inmate’s threat to injure the officer. The defendants have acknowledged that
Department policies called for notice to Mr. Butler of the threat.
The record presents a substantial dispute about whether backup was delayed
and about whether Mr. Hodgson or Mr. Johnson had a role in any of this. The
record presents a substantial dispute about whether any of this occurred in
retaliation for Mr. Butler’s protected speech. These are disputes that cannot
properly be resolved by summary judgment.
V
For these reasons,
IT IS ORDERED:
1. The defendants’ summary-judgment motion, ECF No. 56, is granted in
part and denied in part.
2. Summary judgment is granted for Mr. Cherry.
3. Summary judgment is denied against Mr. Hodgson and Mr. Johnson.
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4. I do not direct the entry of judgment under Federal Rule of Civil
Procedure 54(b).
SO ORDERED on January 9, 2017.
s/Robert L. Hinkle
United States District Judge
Case No. 4:16cv222-RH/CAS
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