HUSSEY v. CITY OF MARIANNA, FLORIDA
Filing
38
AMENDED ORDER granting in part and denying in part 18 Motion for Summary Judgment. Count II is Dismissed with Prejudice. All claims for ADA retaliation are Dismissed to the extent the Amended Complaint alleges ADA Retaliation. Plaintiff's remaining counts are allowed to proceed. Signed by JUDGE RICHARD SMOAK on 8/1/2011. (jcw)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
CARL EVERETT HUSSEY,
Plaintiff,
vs.
CASE NO. 5:10-cv-322/RS-CJK
CITY OF MARIANNA, FLORIDA,
Defendant.
__________________________________/
AMENDED ORDER
Before me are Defendant‟s (“the city”) Motion for Summary Judgment (Doc. 18),
Statement of Facts in Support (Doc. 19), and Memorandum (Doc. 20), and Plaintiff‟s Response in
Opposition (Doc. 28) and Statement of Facts in Opposition (Doc. 27).
Plaintiff has brought a three count amended complaint alleging causes of action under
Florida‟s Whistleblower Act, federal and state retaliation statutes, and Florida‟s disability statute
(See Doc. 1, Attach. 3).
Standard of Review
Summary judgment is appropriate when “there is no genuine issue as to any material fact
and . . . the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56 (c). In other
words, the basic issue before the court is “whether the evidence presents a sufficient
disagreement to require submission to a jury or whether it is so one-sided that one party must
prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S. Ct. 2505,
2512 (1986). The moving party has the burden of showing the absence of a genuine issue as to
any material fact, and in deciding whether the movant has met this burden, the court must view
the movant‟s evidence and all factual inferences arising from it in the light most favorable to the
nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). Thus, if reasonable minds could differ on the
inferences arising from undisputed facts, then a court should deny summary judgment. Miranda
v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank
& Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, a mere
„scintilla‟ of evidence supporting the nonmoving party's position will not suffice; there must be
enough of a showing that the jury could reasonably find for that party. Walker v. Darby, 911
F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 251).
Analysis
Whistleblower Act
The Whistleblower Act, FLA. STAT. § 112.3187, “should be liberally construed in favor
of granting access to the remedy.” Irven v. Dep't of Health & Rehabilitative Servs., 790 So. 2d
403, 405 (Fla. 2001). The fact that Plaintiff allegedly reported violations of the Defendant‟s
personnel policy manual, rather than a violation of law is of no moment. The Act specifically
includes “violations or suspected violations of any . . . local law, rule, or regulation.” Fla. Stat. §
112.3187(5)(a) (emphasis added). The Act also protects reports of “gross mismanagement”
which includes “a continuous pattern of managerial abuses, wrongful or arbitrary and capricious
actions.” Id. at 112.3187 (3)(e) and (5)(b). At a minimum, a city‟s personnel policies guide a
city‟s personnel decisions. Straying from those policies may be an indication of managerial
abuse and because of the policy in favor of a broad interpretation of the statute, employees are
afforded protection for reporting suspected violations of those policies.
Retaliation
Plaintiff cites three basis for his retaliation claim—Title VII retaliation, 42 U.S.C. §
2000e; Title I of the Civil Rights Act, 42 U.S.C. §1981a; and the Florida Civil Rights Act
(“FCRA”), Fla. Stat. § 760. In response to the Motion for Summary Judgment, Plaintiff has
agreed to not proceed with the ADA retaliation claim. (See Doc. 28, p. 6). However, on its
face, the Amended Complaint does not actually allege ADA retaliation under 42 U.S.C. §
12203(a). I construe this response to mean that Plaintiff does not allege that he was retaliated
against because of any actions taken with regard to his disability. Rather, the Amended
Complaint alleges that Plaintiff is a member of a “protected class because he reported unlawful
employment practices and was a victim of retaliation thereunder.” (Doc. 1, Attach. 3, p. 6).1
To establish a prima facie case of retaliation under Title VII, 42 U.S.C. § 2000e - 3(a),
Plaintiff must show that (1) he engaged in statutorily protected expression; (2) he suffered an
adverse employment action; and (3) the adverse action was causally related to the protected
activity. Webb-Edwards v. Orange County Sheriff's Office, 525 F.3d 1013, 1028 (11th Cir.
2008). Here, Plaintiff‟s claim necessarily implies that the protected expression was Plaintiff‟s
1
Plaintiff‟s retaliation claim is unclear. Count II refers to the Plaintiff as “she” and “her” when Plaintiff is a male. This
cut-and-paste section is formulaic and does not adequately allege a cause of action for retaliation.
report of the city not following the personnel manual. However, protected expression under 42
U.S.C § 2000e, et seq., is limited to when an employee opposes “a practice forbidden under Title
VII . . . (the opposition clause), or has made a charge, testified, assisted, or participated in a Title
VII investigation, proceeding, or hearing (the participation clause).” Churchill v. City of Pan.
City Beach, 2009 U.S. Dist. LEXIS 69017, 19-20 (N.D. Fla. 2009), aff’d, 395 Fed. Appx. 531,
532 (11th Cir. 2010). Title VII prohibits discrimination based upon “race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a)(1). Plaintiff does not allege that he was retaliated
against because of some action he took against these categories discrimination. Rather, his
general whistleblower claim, which does not involve a protected class, is not statutorily protected
expression and does not support a Title VII claim. Plaintiff‟s claim likewise is not supported
under the Florida Civil Rights Act (“FCRA”), Fla. Stat. § 760. See Jones v. United Space
Alliance, LLC, 494 F.3d 1306, 1310 (11th Cir. 2007) (“Because the FCRA is modeled on Title
VII, Florida courts apply Title VII caselaw when they interpret the FCRA.)” And, while 42
U.S.C. § 1981a provides additional relief for Title VII suits, it is not an independent ground for
recovery. See Galliher v. Rubin, 969 F. Supp. 1329, 1330 (S.D. Ga. 1997). It does not expand
recovery to acts related to general whistleblower claims without some nexus to race, sex,
disability or some other statutorily recognized discrimination. In the light most favorable to
Plaintiff, the Amended Complaint does not allege that the city retaliated against Plaintiff based
upon his purported disability, rather they retaliated against him for reporting violations of the
personnel manual. (See Doc. 28, p.5).
Disability Discrimination
As for the state disability discrimination claim, Fla. Stat. § 760 et seq., Plaintiff has
brought forth sufficient evidence that he has a learning disability which makes him handicapped.
Plaintiff has sufficiently alleged that others, including Defendant‟s employees, knew of
Plaintiff‟s disability.
Reasons for Discharge and Pretext
“Once plaintiff establishes a prima facie case by proving only that the protected activity
and the negative employment action are not completely unrelated, the burden shifts to
the defendant to proffer a legitimate reason for the adverse action.” Sierminski v. Transouth Fin.
Corp., 216 F.3d 945, 950 (11th Cir. 2000). Here, Defendant contends that Plaintiff was
terminated because of multiple violations of the City‟s policies and procedures over the course of
four months. (Doc. 20, p. 14). As evidence, Defendant notes the verbal reprimand and three
written reprimands that Plaintiff received for his violations of policy which included several
instances of leaving the work area, using his cellular phone for personal communications during
work hours, and instructing another employee to leave a city truck running and unattended.
(Doc. 20, p. 14-18). Defendants have proffered legitimate reasons for terminating Plaintiff‟s
employment. The burden now “shifts back to the Plaintiff to prove by a preponderance of the
evidence that the „legitimate‟ reason is merely pretext for prohibited, retaliatory conduct.
Sierminski, 216 F.3d at 950.
“A plaintiff can establish pretext by demonstrating such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons
for its action that a reasonable factfinder could find them unworthy of credence.” Hill v. Emory
Univ., 346 Fed. Appx. 390, 394 (11th Cir. 2009) (unpublished) (citing Combs v. Plantation
Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)). “A plaintiff is entitled to survive summary
judgment, and judgment as a matter of law, if there is sufficient evidence to demonstrate the
existence of a genuine issue of fact as to the truth of each of the employer's proffered reasons for
its challenged action.” Combs, 106 F.3d at 1529.
Here, Plaintiff alleges that other employees frequently performed work duties outside of
what their supervisor assigned, did not always follow instructions, and would use their cellular
phones for personal use while not on break. These employees did not suffer the same adverse
actions as Plaintiff. (See Doc. 27, p, 18). These allegations are circumstantial evidence of an
inconsistent application of discipline which a reasonable jury could find as more creditable than
Defendant‟s legitimate reasons for taking action.
IT IS ORDERED:
1. The Motion for Summary Judgment (Doc. 18) is GRANTED in part, and DENIED in
part.
2. Count II is Dismissed with Prejudice. All claims for ADA retaliation are Dismissed to
the extent the Amended Complaint alleges ADA Retaliation.
3. Plaintiff‟s remaining counts are allowed to proceed.
ORDERED on August 1, 2011.
/S/ Richard Smoak
RICHARD SMOAK
UNITED STATES DISTRICT JUDGE
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