Burden et al v. City of Opa Locka et al

Filing 121

ORDER granting in part and denying in part 106 Motion for Summary Judgment. Please see Order for details. Signed by Judge Robin S. Rosenbaum on 10/7/2012. (RSR)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 11-22018-CIV-ROSENBAUM/SELTZER

ADAM BURDEN, LARRY RILEY,
VINCENT ROBINSON, TAMIKA MILLER,
TARA LAZIER, and GUITHELE
RUIZ-NICOLAS
Plaintiffs,
v.
CITY OF OPA LOCKA,
Defendant.
/
ORDER
This matter is before the Court upon Defendant City of Opa Locka’s Motion for Summary
Judgment [D.E. 106]. The Court has reviewed Defendant’s Motion for Summary Judgment, all
supporting and opposing filings, and the record in this case. For the reasons that follow, the Court
GRANTS IN PART and DENIES IN PART Defendant’s Motion for Summary Judgment.
I. INTRODUCTION
This case arises out of the claims of six current and former employees of the City of Opa
Locka, Florida (“City”). On February 22, 2012, Plaintiffs Adam Burden, Larry Riley, Vincent
Robinson, Tamika Miller, Tara Lazier, and Guithele Ruiz-Nicolas filed their sixteen-count Fourth
Amended Complaint alleging various violations of federal and Florida law committed by the City.
D.E. 27. The Complaint can be subdivided into five categories: violations of 42 U.S.C. § 1983
(Counts I, III, V, IX, XI, and XV, filed by all Plaintiffs); violations of Florida’s public-sector
Whistle-blower’s Act, Fla. Stat. §§ 112.3187-112.31895 (Counts II, IV, VI, X, XII, XVI, filed by all

Plaintiffs); violations of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2612, et seq.
(Counts VII, filed by Robinson, and XIII, filed by Lazier); a failure-to-promote claim under Title VII
of the Civil Rights Act (Count VIII, filed by Robinson); and a failure-to-notice claim under the
Consolidated Omnibus Budget Reconciliation Act (“COBRA”), 29 U.S.C. § 1166 (Count XIV, filed
by Lazier). The six § 1983 claims were previously dismissed by the Honorable Jose E. Martinez
on June 25, 2012, but the other ten counts survived. D.E. 97.
On July 9, 2012, Defendant properly1 filed its Motion for Summary Judgment as to all claims
by all Plaintiffs and supported its Motion with a Statement of Material Facts and various affidavits
and exhibits. D.E. 106-108. Plaintiffs filed their Response in Opposition, along with the required
rebuttal Statement of Material facts and supporting documents.2 Thereafter, Defendant submitted
its Reply brief. The Motion is now ripe for consideration.

1
In May 2012, Defendant originally filed separate motions for summary judgment against
each Plaintiff individually, in violation of S.D. Fla. L.R. 7.1(c)(2). Subsequently, the motions,
associated statements of fact, Plaintiffs’ responses, and Defendant’s replies were all stricken
from the docket sua sponte. Defendant properly refiled a single Motion for Summary Judgment
on July 9, 2012, supporting it with the same affidavits used earlier. The importance of this point
will be discussed below.

2
Unfortunately, Plaintiffs’ Response generally fails to comply with this Court’s Local
Rules. Specifically, Plaintiffs rarely cite to specific evidence to support their position that
material facts are in controversy. Instead, Plaintiffs cite to irrelevant evidence or to depositions
as a whole, leaving the Court to scour entire depositions to determine whether they include
evidence of discreet points. These problems, which are sufficient to warrant this Court’s striking
of Plaintiffs’ Response under the Local Rules, significantly increased the burden on the Court in
resolving this Motion. The parties are cautioned that the Court will not hesitate in the future to
strike or impose appropriate sanctions, or both, for filings that fail to comport with this Court’s
Local Rules.

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II. BACKGROUND
Plaintiffs are each current or former employees of the City of Opa Locka. Burden was
formerly employed as Deputy Chief of Police for the Opa Locka Police Department (“OLPD”).
Robinson, Lazier, and Riley were each formerly employed as police officers. Miller was at one time
a “crime analyst” with the OLPD but is currently employed as the City’s Director of Code
Enforcement. Ruiz-Nicolas was formerly employed as the City’s Director of Human Resources.
Confidential Inquiry
The Plaintiffs’ whistle-blower claims are based on Plaintiffs’ allegations of various incidents
of mismanagement, misfeasance, malfeasance, or neglected duty within the OLPD or the City’s
management. Many of Plaintiffs’ whistle-blower complaints stem from Plaintiffs’ allegations that
they were retaliated against for participating in a “Confidential Inquiry” initiated in January 2011.
After receiving various concerns and complaints about the OLPD, then-City Manager
Clarance Patterson initiated the Confidential Inquiry to investigate the charges that had been levied
against and within the OLPD. Patterson directed Assistant City Manager David Chiverton and
Director of Human Resources (and current Plaintiff) Ruiz-Nicolas to conduct the actual
investigation. Burden, Robinson, Lazier, and Miller were each interviewed as part of the Inquiry.
Chiverton and Ruiz-Nicolas finished the Inquiry in February 2011 and provided a report to Patterson
on March 7, 2011. The report itself does not name the contributors of information, nor does it levy
accusations against any specific individual. As will be discussed below, however, some of the
statements made by Plaintiffs to the Confidential Inquiry did directly or indirectly list concerns about
specific individuals, particularly OLPD Chief Cheryl Cason.

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Statements to the Confidential Inquiry
During Burden’s interviews with the Inquiry, he expressed concerns that the OLPD was
disorganized, its procedures were outdated, and discipline was inconsistently handled. Burden
apparently attributed these problems to Cason’s alleged poor administration.
In Robinson’s interviews with the Inquiry, he asserted several direct complaints against
Cason. He noted that Cason had told him to pay out of pocket for a traffic ticket that had been issued
to former Mayor John Riley after Robinson had failed to “fix” the ticket under Cason’s earlier
instructions. He also commented that Cason’s secretary had been digging around his office and may
have removed files, that he had discovered Miller crying in Cason’s office, that he was ordered to
work on Christmas so that another officer could be with his family, and that Cason had failed to
discipline and was protecting Officer Marcos Gonzalez despite numerous allegations of Gonzalez’s
abusive behavior.
Lazier claims protection for three statements she made to the Inquiry concerning inconsistent
discipline and incompetence in the OLPD. Specifically, Lazier revealed that a Corporal Faulkner,
who had fallen asleep on the night shift and was then transferred to day shift, was not otherwise
punished for falling asleep on duty, while Lazier was ordered to replace him on the night shift; that
an Officer Holborow drove two intoxicated women home in his personal car; and that an Officer
Gonzalez was rude and should have been disciplined.
During the Confidential Inquiry, Miller made four statements concerning Cason’s
mismanagement for which she seeks protection. Specifically, Miller reported that two officers
engaged in horseplay with a taser that resulted in medics being called, but that neither officer was
disciplined by Cason; that Cason ordered an officer to drive his patrol car to purchase alcohol for
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another officer’s baby shower; that Cason ordered Miller to complete the work of another officer
while Miller was at home on maternity leave; and that Cason refused to punish an officer who had
stolen Miller’s laptop computer.
Cason’s Suspension, Burden’s Other Whistle-blower Statements, and Burden’s Termination
In February 2011, Cason was involved in a motor-vehicle accident while driving her Cityissued vehicle. Cason apparently failed to report the accident, attempted to repair the damage, and
ordered a patrol officer to prepare an “after-the-fact” incident report. When he learned what had
happened, Patterson instructed Burden to gather information and obtain documents related to the
accident and report back to him. Based on this incident, Patterson suspended Cason from February
18, 2011 through March 7, 2011. Burden’s whistle-blower claim lists his participation in this
investigation as an activity protected by the statute.
Additionally, while Cason was suspended, Burden served as Acting Chief of Police. In this
role, Burden advised Patterson that the Federal Bureau of Investigation (“FBI”) was investigating
corruption in the City of Opa Locka. Burden decided to inform Patterson of the investigation
because he did not want Patterson to be surprised by any arrests. This information is the basis of
Burden’s third whistle-blower claim.
After Cason returned to work following her suspension, she informed Patterson that she no
longer had confidence in Burden as her second-in-command. As City Manager, Patterson was the
final decision maker with regard to the employment of city officials.

Based on Cason’s

recommendation, Patterson terminated Burden’s employment on March 22, 2011.

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Ruiz-Nicolas’s Whistle-Blower Statements
In addition to her involvement in preparing the Confidential Inquiry report, Ruiz-Nicolas
claims whistle-blower protection for three other statements she made. Specifically, she seeks
protection for telling Patterson that the City was providing three employees with life-insurance
benefits inconsistent with the City’s standard benefits package; for advising Patterson that the Mayor
had pressured her into extending the application period for police officers; and for informing
Patterson that she had been instructed by the City’s Civil Service Board (“CSB”) to hire an
individual she believed was unqualified for the position.
Riley’s Whistle-Blower Statements and Termination
Riley did not participate in the Confidential Inquiry. Instead, Riley claims whistle-blower
protection for three verbal statements that he made to City officials. Specifically, Riley seeks
protection for letting Patterson know that he was investigating allegations of corruption levied
against a City code-enforcement officer and that he believed that it was necessary to involve the FBI
in the investigation. Further, after Burden was terminated, Riley began reporting directly to Cason.
As part of his duties, he advised Cason of ongoing Internal Affairs investigations and about the FBI’s
corruption investigation. Riley seeks whistle-blower protection for these reports. Finally, Riley was
instructed by Ruiz-Nicolas to permit the Mayor of Opa Locka’s son to complete an application for
police employment after the deadline had passed. Riley objected to Ruiz-Nicolas about making an
exception for the Mayor’s son, but he did not report the incident further.
After Burden was terminated, Cason requested that Patterson terminate Riley because of
Riley’s prior close relationship with Burden. Cason believed that because of his past connections
with Burden, Riley would attempt to undermine Cason’s authority. Accordingly, on Cason’s
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recommendation, Patterson terminated Riley on April 13, 2011.
Barrett Is Appointed Acting Police Chief Instead of Robinson
Following the termination of Burden, Cason sought to promote a new individual to the
Deputy Police Chief position. While a search was conducted for a permanent replacement, Evelyn
Barrett, an African-American woman who had worked with the City since 1981 was selected by
Cason to be the Acting Deputy Chief of Police. Robinson, a Caucasian man who had been with the
City since 1996, also sought the acting position but was rejected by Cason. Barrett filled the role of
acting deputy from March 25, 2011, until January 14, 2012, when Antonio Sanchez was appointed
to the Deputy Police Chief position on a permanent basis.
Permanent supervisory positions with the OLPD have a minimum educational requirement.
Robinson meets this prerequisite, while Barrett does not. The parties disagree on whether the
educational requirement applies to acting positions, however. The selection of Barrett over
Robinson provides the basis of Robinson’s Title VII claim.
Robinson’s FMLA Leave and Termination
Based on a letter from Robinson’s doctor, the City placed Robinson on medical leave
pursuant to the FMLA. The City granted Robinson the statutory maximum twelve weeks of leave,
extending from May 16, 2011, to August 15, 2011. The parties disagree, however, on whether
Robinson returned to work as required at the expiration of his leave, and whether he was
subsequently excused from work due to ongoing health concerns. Based on the assertion by Acting
Chief Barrett that Robinson failed to return to work following his FMLA leave, she requested that

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now-City Manager Bryan Finnie3 terminate Robinson’s employment. Finnie terminated Robinson
on August 25, 2011.
Lazier’s Internal Affairs Investigation, FMLA Leave, and Termination
In April 2011, Lazier was working in the Internal Affairs Department of the OLPD, a
restricted area open only to Internal Affairs personnel. On or about April 20, 2011, Lazier permitted
Defendant Miller access to the Internal Affairs’ spaces, in violation of the orders governing Internal
Affairs access, and an investigation was opened against her. On or about July 7, 2011, Lazier was
granted leave under the FMLA for work-related stress and anxiety. Shortly thereafter, OLPD officers
were sent to her home to retrieve her badge and firearm, but Lazier refused to turn over the weapon
at that time. A few days later, Lazier herself returned the weapon to a civilian City employee.
Additionally, while still on FMLA leave, Lazier appeared on an August 16, 2011, television
interview and criticized the way she had been treated by the OLPD. Lazier had not sought prior
approval for the appearance from any City or OLPD supervisor.
Based on these incidents, Barrett, who was serving as acting Chief of Police while Cason was
on medical leave, recommended that Finnie terminate Lazier’s employment. After Finnie reviewed
Lazier’s file, he terminated her effective August 22, 2011, while Lazier was still on FMLA leave.
In Finnie’s termination letter, dated August 25, 2011, he noted that Lazier’s health benefits would
be terminated August 31, 2011, but that her benefits may be continued through COBRA.
Ruiz-Nicolas’s Termination
Shortly after Finnie began his tenure as City Manager, he learned that Ruiz-Nicolas had failed
to keep confidential an investigation of theft by a City employee. Specifically, Ruiz-Nicolas had
3

Finnie replaced Patterson as City Manager in June 2011.
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apparently revealed to the suspect the identity of the accuser. According to Finnie, such a breach of
confidentiality was unacceptable behavior for the City’s Human Resources Director. Finnie
terminated Ruiz-Nicolas’s employment with the City on June 28, 2011.
III. STANDARD OF REVIEW
A. Summary Judgment Standard
Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(C). An issue is genuine if “a
reasonable trier of fact could return judgment for the non-moving party.” Miccosukee Tribe of
Indians of Fla. v. United States, 516 F.3d 1235, 1243 (11th Cir. 2008) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact is material if it “might affect the outcome of the
suit under the governing law.” Id. (quoting Anderson, 477 U.S. at 247-48).
On a motion for summary judgment, the Court views the evidence, including all reasonable
inferences drawn from it, in the light most favorable to the non-moving party and resolves all
reasonable doubts against the movant. Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir.
2008); Johnson v. City of Mobile, 321 F. App’x 826, 830 (11th Cir. 2009). The Court does not
weigh conflicting evidence. Skop v. City of Atlanta, 485 F.3d 1130, 1140 (11th Cir. 2007), reh’g and
reh’g en banc denied, 254 F. App’x 803 (11th Cir. 2007). Nor does the Court determine the
credibility of witnesses. Jones v. UPS Ground Freight, 683 F.3d 1283, 1292 (11th Cir. 2012)
(citation omitted). “Cases in which the underlying issue is one of motivation, intent, or some other
subjective fact are particularly inappropriate for summary judgment, as are those in which the issues
turn on the credibility of the affiants.” Ala. Farm Bureau Mut. Cas. Co., Inc. v. Am. Fid. Life Ins.
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Co., 606 F.2d 602, 609 (5th Cir. 1979) (quoting Slavin v. Curry, 574 F.2d 1256, 1267 (5th Cir.
1978). Upon discovering a genuine material dispute, the Court must deny summary judgment and
proceed to trial. Jones, 683 F.3d at 1292.
The moving party shoulders the initial burden of showing the absence of a genuine issue of
material fact. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). Once the moving party
satisfies this burden, “the nonmoving party ‘must do more than simply show that there is some
metaphysical doubt as to the material facts.’” Ray v. Equifax Info. Servs., L.L.C., 327 F. App’x 819,
825 (11th Cir. 2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986)). Instead, “the non-moving party ‘must make a sufficient showing on each essential
element of the case for which he has the burden of proof.’” Id. (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986)). Accordingly, the non-moving party must produce evidence, going
beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories, and
admissions on file, designate specific facts suggesting that a reasonable jury could find in his favor.
Shiver, 549 F.3d at 1343.
Local Rule 56.1, S.D. Fla., further factors into this Court’s consideration of a motion for
summary judgment. Under Local Rule 56.1, a party moving or opposing summary judgment must
submit a “statement of the material facts as to which it is contended that there does not exist a
genuine issue to be tried or there does exist a genuine issue to be tried, respectively.” S.D. Fla. L.R.
56.1(a). The rules require these statements be supported by “specific references” to evidence on the
record. S.D. Fla. L.R. 56.1(a)(2). The Local Rules expressly caution, “[a]ll material facts set forth
in the movant’s statement filed and supported as required above will be deemed admitted unless
controverted by the opposing party’s statement, provided that the Court finds that the movant’s
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statement is supported by evidence in the record.” S.D. Fla. L.R. 56.1(b). But even where an
opposing party neglects to submit any alleged material facts in controversy, the court must still
satisfy itself that all the evidence on the record supports the uncontroverted material facts that the
movant has proposed. Reese v. Herbert, 527 F.3d 1253, 1268-69, 1272 (11th Cir. 2008); United
States v. One Piece of Real Prop. Located at 5800 S.W. 74th Ave., Miami, Fla., 363 F.3d 1099, 1103
n.6 (11th Cir. 2004).
B. Status of Defendant’s Affidavits
Before this Court can address the merits of the summary-judgment motion, it must first
resolve an issue concerning the admissibility of Defendant’s supporting affidavits. Plaintiffs base
a great deal of their opposition to summary judgment on their suggestion that all of the affidavits
submitted by Defendant in support of its Motion should be excluded because of a failure to disclose
those affidavits as requested during discovery. D.E. 114 at 3-5; see also Fed. R. Civ. P. 56(c)(2)
(allowing a party to object to the admissibility of evidence cited in a summary judgment motion).
Plaintiffs assert that they requested “[a]ny written or recorded statements, or reports or affidavits of
any person related to the subject matter of this action” in an interrogatory and that Defendant did not
provide any affidavits in its initial response. Plaintiffs further contend that Defendant violated Rule
26(e), Fed. R. Civ. P., by failing to supplement its response with the affidavits it eventually used to
support its motion. Id. Defendant’s affidavits were executed on May 18, 2012 (Patterson), May 23,
2012 (Cason, Barrett, Finnie, and Luznilda Natal), and June 5, 2012 (Finnie). D.E. 108. Discovery
in this matter closed on May 25, 2012. D.E. 39.
Defendant responds to Plaintiffs’ contentions by noting that it objected to the original
interrogatory, and Plaintiffs never sought to enforce their discovery request with this Court; that each
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of the affiants had been identified in the exchange of witness lists; and that each of the affidavits
were executed only a few days before Defendant filed its original summary judgment motion on May
29, 2012. D.E. 118, ¶ 118.
As noted, “[t]he party moving for summary judgment ‘bears the initial responsibility of
informing the district court of the basis for its motion.” Josendis v. Wall to Wall Residence Repairs,
Inc., 662 F.3d 1292, 1314-15 (11th Cir. 2011) (quoting Celotex, 477 U.S. at 323). Affidavits
supporting a summary judgment motion must be “based on personal knowledge and must set forth
facts that would be admissible at trial.” Id. at 1315 (citing Macuba v. Deboer, 193 F.3d 1316, 132223 (11th Cir. 1999); see also Fed. R. Civ. P. 56(c)(4). If a party fails to comply with its discovery
obligations under Rule 26(a) or 26(e), the information or witness testimony at issue may be excluded
from trial under Rule 37(c)(1). Fed. R. Civ. P. 37(c)(1). Consequently a court has the discretion to
strike affidavits on summary judgment that provide information that would be inadmissible at trial
due to Rule 37(c)(1) sanctions. See Cooper v. Southern Co., 390 F.3d 695, 728 (11th Cir. 2004),
overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006). If the failure to
comply is harmless or is substantially justified, however, then the testimony or information may be
admitted by the court. See Fed. R. Civ. P. 37(c)(1).
Although this Court has found no Eleventh Circuit cases analyzing the failure to provide
affidavits during discovery as a basis for Rule 37(c)(1) sanctions, guidance does exist related to the
failure to disclose a witness in a timely manner. When deciding whether to exclude a witness under
Rule 37(c)(1), courts consider “(1) the importance of the testimony; (2) the reason for the appellant’s
failure to disclose the witness earlier; and (3) the prejudice to the opposing party if the witness had
been allowed to testify.” Bearint ex rel. Bearint v. Dorell Juvenile Group, Inc., 389 F.3d 1339, 1353
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(11th Cir. 2004). Important testimony should not be excluded absent some showing of prejudice.
See Murphy v. Magnolia Elec. Power Ass’n, 639 F.2d 232, 235 (5th Cir. Mar. 1981) (finding an
abuse of discretion when trial judge excluded “essential” testimony in the absence of any prejudice).
In this case, obviously, the affidavits in question are important. Defendant rests large
portions of its Motion for Summary Judgment on them, and their contents are central to the issues
presented in this case. Id.
As for Defendant’s reasons for failing to provide Plaintiffs with the affidavits during
discovery and the issue of prejudice, the Court first notes that Defendant objected to the discovery
request and Plaintiffs chose not to pursue it. Thus, Plaintiffs appear to have waived their right to
demand better responses to the discovery request at issue.
But even assuming, arguendo, that Defendant lacked a valid objection and should have
produced the affidavits in response to the production request, at worst, the failure to provide them
was harmless. Perhaps most significantly, the identities of four of the five affiants (Cason, Patterson,
Finnie, and Natal) were contained not only in Defendant’s Rule 26(a)(3) witness list [D.E. 32]
provided on March 15, 2012, but were also listed in Plaintiffs’ own Rule 26(a)(3) witness list [D.E.
34] as witnesses Plaintiffs intended to call. To the extent that Plaintiffs knew two months prior to
the execution of the affidavits and more than two months before the close of discovery that these
four individuals would be witnesses called by the Defense, Plaintiffs cannot credibly claim that they
did not have an opportunity to depose these individuals as to their “personal knowledge and other
biases.” D.E. 114 at 4. And, to the extent that Plaintiffs themselves intended to call these witnesses
during trial, any claims of surprise that Defendant would rely upon their testimony in a summary
judgment motion are entirely without merit. Accordingly, given the importance of the affidavits and
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the lack of any demonstrable prejudice, this Court will include the affidavits of Cason, Patterson,
Finnie, and Natal in its consideration of the Motion for Summary Judgment.
Only slightly more problematic is the affidavit of Evelyn Barrett. Barrett was not included
in the parties’ original or supplemental witness lists. See D.E. 32; D.E. 34; D.E. 36. Rather, the first
indication in the record that Barrett would provide testimony appeared when Defendant filed its
original motions for summary judgment on May 29, 2012. Nevertheless, Plaintiffs are unable to
demonstrate that the failure to provide them with Barrett’s affidavit was not harmless. First,
Plaintiffs’ Fourth Amended Complaint4 [D.E. 27] references Barrett as the individual who was
promoted over Robinson in his Title VII claim. D.E. 27, ¶ 116. Second, Plaintiffs’ Complaint
mentions Barrett as among the individuals who allegedly requested Miller to sign supposedly invalid
disciplinary form in retaliation for participating in the Confidential Inquiry. D.E. 27, ¶¶ 129, 132-33.
Consequently, Plaintiffs’ own Complaint suggests that Barrett may have possessed relevant
information and thus may have been called upon by Defendant to provide testimony.
Moreover, the delay caused by the striking of the original summary judgment motions
provided Plaintiffs with ample notice and time to raise separately with the Court the issue of
Defendant’s failure to provide the affidavits during discovery. Assuming5 that Defendant improperly
(or even properly) objected to the affidavit interrogatory under Rule 33(b)(4), Fed. R. Civ. P.,
Plaintiffs could have sought to resolve the issue then by filing a motion to compel or seeking other
appropriate relief from this Court. They did not do so. On the other hand, if Defendant objected in

4
For convenience, this Order refers to the Fourth Amended Complaint as the
“Complaint.”

5
The Court is required to make this assumption because neither party has provided actual
copies of the interrogatory or objection at issue here.

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such a way that would have led Plaintiffs to reasonably believe the existence of future affidavits was
not possible, Plaintiffs did receive the Barrett affidavit on May 29. In Plaintiffs’ response to the
original summary judgment motion, they make the same attack that they make here on all the
affidavits. The first of those responses was filed on June 8. With extensions, Plaintiffs’ Response
to the current Motion for Summary Judgment was filed on August 1. In the intervening two months,
instead of seeking relief over the existence of an affidavit that they had become aware of, Plaintiffs
chose to provide a nearly verbatim renewal of the same objections they raised to the original
motions.
To put it another way, Defendant could have theoretically complied with the interrogatory
and provided Plaintiffs with the Barrett affidavit on the same day it was executed, May 23. Plaintiffs
contend that they could have conducted a deposition of Barrett (and the other affiants) in the two
days between the execution and the close of discovery on May 25, but because they did not receive
the affidavits until May 29, Plaintiffs were prejudiced by not being able to depose the affiants. Yet,
in the span of two months between learning of the Barrett affidavit on May 29 and filing their
Response on August 1, Plaintiffs did not seek to reopen discovery or take depositions of any affiant.
Accordingly, this Court is unconvinced that Plaintiffs, who have had two months’ notice of the
Barrett affidavit and have failed to act on it, would be unfairly prejudiced by consideration of the
affidavit in the summary judgment motion.
Relatedly, Plaintiffs also object to various statements in Defendant’s affidavits as being based
on external documents not in the record. See, e.g., D.E. 115, ¶¶ 101, 102, 104, 105. Rule 56(c)(4)
requires that affidavits rely on “personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.
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R. Civ. P. 56(c)(4). Other than blanketly complaining that various statements make reference to or
assert facts based on external documents, Plaintiffs do not specifically address how the statements
at issue are not, in fact, based on personal knowledge, do not elaborate under what theory they would
be inadmissible at trial, and do not even suggest what specific or generic types of documents are
actually involved.6 See, e.g., D.E. 115, ¶¶ 101, 102, 104, 105. Therefore, to the extent that the
affidavit statements comply with Rule 56(c)(4), they will be considered by the Court in disposing
of the summary-judgment motion.
In conclusion, Plaintiffs have failed to demonstrate any reason that the affidavits submitted
by Defendant should be disregarded by the Court. To the extent, therefore, that Plaintiffs’
objections to Defendant’s various statements of material facts relied solely on excluding the
affidavits, Plaintiffs will be deemed to have admitted those facts. S.D. Fla. L.R. 56.1(b). However,
the Court must still satisfy itself that all the evidence on the record supports the uncontroverted
material facts that Defendant has proposed. Id.; Reese, 527 F.3d at 1268-69.
IV. ANALYSIS
A. Florida Whistle-Blower’s Act Claims
Florida’s Whistle-blower’s Act (“FWA” or “the Act”) was enacted with the intent to prevent
retaliatory action against employees and persons who disclose government wrongdoing to the
appropriate officials. See Fla. Stat. § 112.3187(2). The Act sets forth several specific requirements
regarding the types of disclosures protected, to whom those disclosures must be made, who is

6

For example, Plaintiffs complain about Finnie’s statement that “Lazier’s decision to
apply for and accept FMLA leave was never a part of my considerations in deciding to terminate
her,” in his affidavit. D.E. 115, ¶ 101; D.E. 108-19, ¶ 15. There is nothing objectionable about
this statement under Rule 56(c)(4) or any other rule. To the contrary, it is a statement of personal
knowledge, as contemplated by Rule 56(c)(4).
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protected, and the manner in which a remedy must be sought. Id. § 112.3187(5)-(8). Under Florida
law, before a local public employee can file a Whistle-blower’s Act lawsuit, that employee must
“first exhaust all administrative remedies” under §112.3187(8)(b), Fla. Stat. Williams v. City of
Miami, 87 So. 3d 91, 92 (Fla. 3d DCA 2012). Local government authorities, including any
municipal entity, may establish an administrative procedure for handling FWA complaints. Fla. Stat.
§ 112.3187(8)(b). If a local governmental authority has not established an administrative procedure
or otherwise contracted with the Florida Division of Administrative Hearings to hear such
complaints, local government employees may bring suit within 180 days of suffering a prohibited
action. Id. Other individuals protected by the Act are required to exhaust “all available contractual
or administrative remedies” before bringing suit. Fla. Stat. § 112.3187(8)(c).
If a plaintiff complies with the exhaustion requirements, the inquiry then proceeds to the
substance of the FWA claims. In a motion for summary judgment under the Act, a court applies the
burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Rice-Lamar v. City of Fort Lauderdale, 853 So. 2d 1125, 1132-33 (Fla. 4th DCA 2003); see also
Rutledge v. SunTrust Bank, 262 F. App’x 956, 957-58 (11th Cir. 2008) (applying framework to
summary judgment under Florida’s private-sector whistle-blower’s statute). Thus, a plaintiff
alleging a violation of the FWA has the initial burden to establish a prima facie case that (1) he or
she engaged in a protected activity, (2) he or she suffered an adverse employment action, and (3) a
causal link exists between the two events. Rice-Lamar, 853 So. 2d at 1132. If the plaintiff
establishes a prima facie case, the burden shifts to the employer to articulate a legitimate reason for
the employment action. Id. at 1132-33. If a legitimate reason is set forth, the burden shifts back to
the plaintiff to show that the employer’s reason was pretextual. Id.
-17-

Under the relevant portions of the FWA, a protected activity must disclose “[a]ny act or
suspected act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds . . .
or gross neglect of duty committed by an employee or agent of an agency.”

Fla. Stat. §

112.3187(5)(b). The Act defines “[g]ross mismanagement” to mean “a continuous pattern of
managerial abuses, wrongful or arbitrary and capricious actions, or fraudulent or criminal conduct
which may have a substantial adverse economic impact.” Fla. Stat. § 112.3187(3)(e). Neither
malfeasance nor misfeasance is defined in the statute, but Florida courts have construed malfeasance
to mean “the doing of an act which a person ought not do at all” and misfeasance to be “the improper
doing of an act which a person might lawfully do.” Rosa v. Dep’t of Children & Families, 915 So.
2d 210, 212 (Fla. 1st DCA 2005) (citing Irven v. Dep’t of Health & Human Servs., 790 So. 2d 403,
405 (Fla. 2001)). For purposes of summary judgment, under Florida law, if the content of a
disclosure could create reasonable inferences of gross mismanagement, malfeasance, or misfeasance,
the issue of whether it has done so presents a factual matter for the jury. See id.
The disclosure itself must be made by employees “on their own initiative in a written or
signed complaint” or when “requested to participate in an investigation, hearing, or other inquiry
conducted by any agency or federal government entity.” Fla. Stat. § 112.3187(7). In the localgovernment context, such disclosures must be made “to a chief executive officer as defined in
[section] 447.203(9) or other appropriate local official.” Fla. Stat. § 112.3187(6).
1. Initial Procedural Issues
a. Exhaustion of Administrative Remedies: Robinson, Lazier, and Miller
Defendant first alleges that Plaintiffs Robinson, Lazier, and Miller have each failed to
exhaust their administrative remedies as required under §112.3187(8)(c), by not appealing to Opa
-18-

Locka’s Civil Service Board (“CSB”). D.E. 106 at 3. Plaintiffs do not dispute the fact that
Robinson, Lazier, and Miller never appealed to the CSB. D.E. 107, ¶ 168; D.E. 115, ¶ 168. Instead,
Plaintiffs suggest that they are covered by § 112.3187(8)(b), not § 112.3187(8)(c). Instead, they
argue that the CSB does not meet the requirements of §112.3187(8)(b) and that Opa Locka has not
established any other qualified administrative procedure to hear whistle-blower claims, thus allowing
Plaintiffs to proceed directly to court. D.E.114 at 8-9.
To the extent that Defendant relies on paragraph (c) of §112.3187(8) to impose an exhaustion
requirement on Plaintiffs, the Court disagrees. The plain language of § 112.3187(8) identifies three
distinct classes of persons who may file a whistle-blower’s complaint: state employees (addressed
by paragraph (a)), local employees (addressed by paragraph (b)), and “other persons” (addressed by
paragraph (c)). See Univ. of Cent. Fla. Bd. of Trustees v. Turkiewicz, 21 So. 3d 141, 143-44 & n.3
(Fla. 5th DCA 2009); see also Fla. Stat. § 112.3187(8)(c) (“Any other person protected by this
section . . . .” (emphasis added)). Robinson, Lazier, and Miller are or were municipal employees of
the City of Opa Locka, and thus squarely are covered under § 112.3187(8)(b). D.E. 107, ¶ 1; D.E.
115, ¶ 1; Fla. Stat. § 112.3187(8)(b) (“For the purpose of this paragraph, the term ‘local
governmental authority’ includes any . . . municipal entity . . . .”). Because they are covered by
paragraph (b), they do not fall into the catch-all category of “other person[s]” addressed by paragraph
(c).7 See, e.g., United States. v. Fuentes-Rivera, 323 F.3d 869, 872 (11th Cir. 2003); Tug Allie-B,
Inc. v. United States, 273 F.3d 936, 948 (11th Cir. 2001). Presumably for these reasons, the cases
relied on by Defendant clearly apply the terms of paragraph (b) to the local employee plaintiffs.
Williams, 87 So. 3d at 92; Browne v. City of Miami, 948 So. 2d 792, 793-94 (Fla. 3d DCA 2006).

7

Otherwise, paragraph (b) would be surplusage.
-19-

Therefore, Robinson, Lazier, and Miller are bound only by the exhaustion requirements under
paragraph (b).
The question remains, though, whether Opa Locka had established a qualified administrative
procedure for handling whistle-blower complaints via the CSB. Any administrative procedure for
handling whistle-blower complaints must be created by ordinance and must provide for the
complaint to be heard by a panel of impartial persons, properly appointed by the local authority, who
are empowered to “make findings of fact and conclusions of law for a final decision by the local
governmental authority.” Fla. Stat. § 112.3187(8)(b); see also City of Miami v. Del Rio, 723 So. 2d
299, 300-01 (Fla. 3d DCA 1998). Whether a municipality’s administrative procedure suffices under
the Act presents a question of law. Dinehart v. Town of Palm Beach, 728 So. 2d 360, 361 (Fla. 4th
DCA 1999).
In contesting the adequacy of the CSB, Plaintiffs’ argument rests on the proposition that the
CSB was not specifically established to handle whistle-blower complaints. D.E. 114 at 9. Plaintiffs
do not contend that the CSB was not created by ordinance, or that it is not composed of properly
appointed, impartial persons empowered to make findings of fact and conclusions of law for a final
decision by local authorities. See id. Instead, they rely on Del Rio, which found the City of Miami’s
Civil Service Board adequate for the preceding reasons and because it was “authorized by section
40-128, Miami, Fla. Code (formerly section 40-103), to handle whistle-blower complaints.” Del Rio,
723 So. 2d at 300-01.
The Court agrees with Plaintiffs that the ordinance creating the CSB does not sufficiently
establish a qualified administrative procedure for handling whistle-blower complaints under §
112.3187(8)(b). Robinson, Lazier, and Miller were thus not required to exhaust remedies at the CSB
-20-

before bringing this lawsuit.
The Opa Locka City Ordinance establishing the CSB invests it with the power to:
....
(4) Hear appeals in case any officer or employee in the classified
service is suspended, reduced or removed, and report in writing to the
chief administrative officer of the city its findings and
recommendations;
....
Opa Locka, Fla., Code of Ordinances pt. I, art. XIII, § 183(4). An appeal under this section must be
lodged with the CSB within five days after receiving written notice of the suspension, reduction in
pay or class, or removal. Id. § 192. Neither party has identified any other applicable provision of
the City’s code.8
The FWA requires that a local government’s administrative procedure be established by
ordinance to hear whistle-blower complaints, i.e., complaints that a local government entity has
dismissed, disciplined, or taken “any other adverse personnel action” against a local employee in
retaliation for disclosing information protected by the FWA. Fla. Stat. § 112.3187(8)(b); see Fla.
Stat. § 112.3187(4)(b). “Adverse personnel action” includes “discharge, suspension, transfer, or
demotion of any employee or the withholding of bonuses, the reduction in salary or benefits, or any
other adverse action taken against an employee within the terms and conditions of employment.”
Fla. Stat. § 112.3187(3)(c) (emphasis added). The Act also gives employees sixty days to file an
administrative complaint. Fla. Stat. § 112.3187(8)(b).

8
The City adopted and incorporated verbatim the Florida Whistle-blower’s Act into its
city code. Opa Locka, Fla., Code of Ordinances pt. II, ch. 2, art. III, div. 1, § 2-99. Beyond the
verbatim incorporation, the Court can find nothing in the City’s code that implements the terms
of the Act into the operating procedures of the CSB or any other city board.

-21-

The CSB’s authorizing ordinance falls short of the requirements contemplated in the FWA.
More specifically, the CSB is empowered to hear appeals only in cases of suspension, reduction in
pay or class, or removal. While each of these is an adverse action covered by the statute, the FWA
describes many more types of adverse action that apparently would not be appealable to the CSB.
Further, a CSB appeal must be filed within five days, whereas an administrative complaint under the
FWA can be filed within sixty days. Because the FWA is a remedial statute that “should be
construed liberally in favor of granting access to the remedy,” Hutchison v. Prudential Ins. Co. of
Am., Inc., 645 So. 2d 1047, 1049 (Fla. 3d DCA 1994) (citation omitted), the Court finds the CSB’s
mandate is too narrow to satisfy the requirements of the FWA.
The administrative board found adequate in Del Rio is readily distinguishable from CSB in
this case. The Miami city ordinance at issue in Del Rio empowered that board to hear complaints
raised by “[a]ny employee who is aggrieved by reason of what he/she considers a violation of this
article to his/her detriment or who has a grievance concerning his/her employment under this article.”
Del Rio, 723 So. 2d at 301 n.3. The Miami board’s broad mandate easily encompasses all the
adverse actions contemplated by the FWA, while Opa Locka’s CSB’s limited mandate of
suspension, reduction, and removal appeals does not.
b. Appropriate Local Officials Under the FWA
Defendant also attacks statements made to the Confidential Inquiry as not being covered by
the FWA because the statements made in the course of the Inquiry were made to Human Resources
Director Ruiz-Nicolas and Assistant City Manager Chiverton and not to City Manager Patterson, the
chief executive officer of the city. D.E. 106 at 6. Plaintiffs do not dispute that the Inquiry statements
were not made directly to Patterson. They respond instead by claiming that Ruiz-Nicolas and
-22-

Chiverton are appropriate local officials to whom protected disclosures can be directed. The Court
finds that Ruiz-Nicolas and Chiverton are indeed appropriate officials under the FWA to whom
protected disclosures could have been addressed.
The FWA requires eligible information concerning a local government entity “be disclosed
to a chief executive officer as defined in [Fla. Stat.] § 447.203(9) or other appropriate local official”
in order to qualify as a protected disclosure. Fla. Stat. § 112.3187(6) (emphasis added). Although
this Court cannot find any Florida case law analyzing who qualifies as an “appropriate local official,”
the Florida Attorney General’s Office has issued several advisory opinions on the topic. In those
opinions, the Florida Attorney General has found a transit authority’s board of directors, a county’s
inspector general, and a town’s ethics commission to qualify as “other appropriate local official[s]”
under the Act. Op. Att’y Gen. Fla. 2012-20 (2012); Op. Att’y Gen. Fla. 99-07 (1999); Op. Att’y
Gen. Fla. 96-40 (1996). Significantly, the Attorney General has found individuals to be “appropriate
local officials” where they are empowered to investigate complaints and make reports or recommend
corrective action. See Op. Att’y Gen. Fla. 99-07. A federal court construing Florida law has
similarly concluded that the supervisor of a local employee qualifies as an appropriate local official.
Saunders v. Hunter, 980 F. Supp. 1236, 1246 (M.D. Fla. 1997). Finally, the Attorney General’s
opinions note that the confidentiality provisions of the Whistle-blower’s Act permit complaints to
be shared with an official’s staff and still retain their confidentiality. Op. Att’y Gen. Fla. 2012-20;
Fla. Stat. §112.3188(1).
Defendant cites two cases for the proposition that Ruiz-Nicolas and Chiverton should not be
considered appropriate officials. The first case is not really instructive, as the court concluded in one
sentence that the personnel did not fall within the scope of the statute without identifying who those
-23-

individuals were or analyzing the individuals’ positions under the FWA. See Cummins v. Lake
County Bd. of County Comm’rs, 671 So. 2d 893, 893 (Fla. 5th DCA 1996). Nor is Defendant’s
second case on point, as it did not concern a local government entity (to which the appropriate local
official language applies), but rather an independent state Medicaid contractor. Kelder v. ACT Corp.,
650 So. 2d 647, 648 (Fla. 5th DCA 1995).
In light of the relevant legal authorities and the liberal construction afforded to the FWA, the
Court finds that Ruiz-Nicolas and Chiverton qualify as “other appropriate local officials.” It is
undisputed that City Manager Patterson directed and empowered Ruiz-Nicolas and Chiverton to
investigate concerns in the OLPD and to issue a report on their findings. D.E. 107, ¶¶ 2-3. Given
the breadth of similarly empowered, non-chief-executive individuals who were deemed to qualify
as other appropriate local officials according to the Florida Attorney General, the Court finds that
Ruiz-Nicolas and Chiverton were qualified to receive protected disclosures under the FWA during
the Confidential Inquiry.
2. Burden’s FWA Claims
a. Protected Activities
Plaintiff Burden asserts that he engaged in three protected activities under the FWA: (i)
giving information to the Confidential Inquiry; (ii) making statements to Patterson concerning Chief
Cason’s car accident; and (iii) advising Patterson of a secret FBI investigation.9 D.E. 27, ¶¶ 29, 48.
Beginning with the last statement, the FWA requires a disclosure of a “violation or suspected

9
Plaintiffs’ Complaint lists only the FBI issue as a disclosure under Plaintiff Riley’s FWA
Count, but the Complaint mentions Burden and Riley together, and Defendant has treated
Burden’s statements concerning the FBI investigation as part of Burden’s FWA claim as well.
Therefore, the Court will treat the FBI claim as one of the bases for Burden’s FWA claim.

-24-

violation of . . . law, rule, or regulation” or an “act or suspected act of gross mismanagement,
malfeasance, misfeasance, gross waste of public funds . . . or gross neglect of duty.” Fla. Stat. §
112.3187(5). Merely disclosing the existence of a law-enforcement investigation to a City official
is not the same as reporting a violation of law and is therefore not a protected activity under the
FWA. Because the statements about the existence of the FBI investigation do not constitute
protected activity, Burden cannot establish a prima facie whistle-blower case on this basis.
Consequently, Defendant is entitled summary judgment on any whistle-blower claim arising from
Burden’s statement concerning the FBI investigation.
Burden’s other two statements, however, do establish a prima facie case for a protected
activity under the FWA. The FWA protects individuals who make a disclosure of eligible
information when “requested to participate in an investigation, hearing, or other inquiry conducted
by any agency.”10 Fla. Stat. § 112.3187(7). Contrary to Defendant’s suggestion, disclosures made
pursuant to an investigation or inquiry need not be made via written and signed complaints or on the
initiative of the one disclosing.
It is undisputed by the parties that Patterson requested that Burden investigate Chief Cason’s
accident, and in response, Burden provided Patterson with a repair invoice and a rental-car invoice.
D.E. 107, ¶¶ 11-13; D.E. 115, ¶¶ 11-13. Under Rosa, a reasonable jury could draw the inference
that these invoices represented misfeasance or malfeasance on the part of Chief Cason. As such, a
triable issue of fact exists as to whether providing these invoices amounts to a protected activity, and

10
Under the FWA, an “agency” is defined to include, among other things, “any official” or
“officer.” § 112.3187(3)(a). Patterson is therefore an “agency” for the purposes of the FWA.

-25-

summary judgment would be inappropriate. See 915 So. 2d at 212. For the purposes of the burdenshifting analysis, this suffices to establish a prima facie case for protected activity.
Finally, during Burden’s participation in the Confidential Inquiry, he made the following
undisputed11 assertions: the department was completely disorganized, the department’s policies and
procedures were outdated, and discipline was delivered in an inconsistent manner. D.E. 107, ¶ 9;
D.E. 115, ¶ 9. Burden also described Cason as a poor administrator. Under Rosa, a reasonable jury
could draw the inference that Burden’s statements to the Confidential Inquiry were evidence of a
pattern of managerial abuses that amounted to gross mismanagement by Cason. Therefore, a triable
issue of fact exists as to whether these statements amounted to a protected activity, and summary
judgment would be inappropriate. See 915 So. 2d at 212. For the purposes of the burden-shifting
analysis, this is sufficient to establish a prima facie case for protected activity.
b. Causation

2

1

To establish a prima facie whistle-blower’s case, a plaintiff also needs to show a causal link
between the protected activity and the adverse action. Rice-Lamar, 853 So. 2d at 1132-33. To
establish causation, “a plaintiff need only show that the protected activity and the adverse action
were not wholly unrelated.” Fla. Dep’t of Children & Families v. Shapiro, 68 So. 3d 298, 306 (Fla.

11

Plaintiffs agree with Defendant’s characterization of Burden’s statements to the
Confidential Inquiry, but also add that Burden told the Inquiry about the incident where Cason
improperly ordered Robinson to pay a traffic ticket. Plaintiffs cite to “App 2 P76” in support of
this proposition. However, nothing on page 76 of Appendix 2 deals with the traffic-ticket
incident or its disclosure during the Confidential Inquiry. A search of Plaintiffs’ 196-page
Appendix finds the traffic-ticket incident discussed on pages 94-95 and pages 134-35. D.E. 1162 at 94-95, 134-35. But in his deposition, Burden expressly states that he never reported the
traffic-ticket incident to anyone, including the Confidential Inquiry. D.E. 116-2 at 135:15.
12
Neither party disputes that Burden suffered an adverse action, i.e., being terminated.
D.E. 107, ¶ 116; D.E. 115, ¶ 116.

-26-

4th DCA 2011) (quoting Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir.
2000)). Plaintiffs can establish prima facie causation in a whistle-blower’s suit by demonstrating
close temporal proximity — that, is, showing that the decision maker was aware of the protected
conduct at the time of the adverse action — or by way of a “cat’s paw” theory where “the decision
maker acts in accordance with the harasser’s decision when the decision maker fails to conduct an
independent investigation, and instead rubber stamps the recommendations of the harasser.” Id. at
306 (citing Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249 (11th Cir. 1998).
Regarding both protected activities, Burden has established a prima facie case for causation.
First, with respect to Cason’s auto accident, Burden made his protected disclosure sometime between
February 15 and February 18, 2011. D.E. 108-1, ¶¶ 16-17; D.E. 108-1, ¶¶ 14-16. Cason was
suspended from February 18 to March 7, 2011. D.E. 108-1, ¶¶ 14-16. It is not clear, however, if
Cason returned to work on March 7 or March 20, 2011. Compare id. (noting date Cason was
cleared, but not when she returned) with D.E. 27, ¶ 25 (alleging Cason returned on or about March
20). Nevertheless, on March 21, 2011, Cason sent Patterson a memorandum requesting Burden’s
termination. D.E. 108-3, ¶ 112. Patterson terminated Burden the next day without conducting an
independent investigation of Cason’s accusations. D.E. 27, ¶ 27; D.E. 108-1, ¶¶ 9-11. Thus, Burden
was terminated a little more than a month after his alleged protected activity regarding Cason’s car
accident. This by itself suffices to establish prima facie causation by temporal proximity. Padron
v. BellSouth Telecomms., Inc., 196 F. Supp. 2d 1250, 1256 (S.D. Fla. 2002) (assuming one to two
months could establish causation); Castillo v. Roche Labs., Inc., 467 F. App’x 859, 862 (11th Cir.
2012) (one month satisfies causation while three-month interval does not); Donnellon v. Freuhauf

-27-

Corp., 794 F.2d 598 (11th Cir. 1986) (one month between protected activity and discharge was
sufficient to establish causation).
Burden has also demonstrated prima facie causation between his statements to the
Confidential Inquiry and his termination. According to Burden’s deposition, Burden stated that upon
Cason’s return to duty from suspension, she specifically told Burden that she knew what Burden had
told the Confidential Inquiry and commented that Burden “shouldn’t have said those things.” D.E.
108-2 at 31:14-19. The record thus indicates that Cason was aware of Burden’s protected activity
and that she asked Patterson to terminate Burden, which he did the very next day. Under a “cat’s
paw” theory, these facts establish prima facie causation.
c. Legitimate Reasons and Pretext
Defendant has described a number of incidents contributing to Cason’s recommending of the
termination of Burden’s employment, all of which lead up to its proffered overarching legitimate
reason for termination: Cason had lost confidence in Burden as a second-in-command of the OLPD.
D.E. 107, ¶¶ 112, 114. Defendant, however, supports these incidents and this reason with only an
affidavit provided by Cason, and Plaintiffs dispute the facts surrounding Cason’s proffered
incidents.13 D.E. 115, ¶ 114.

13
The Court nonetheless notes that Plaintiffs’ citations to the record reference portions of
Burden’s deposition that have nothing to do with Cason’s proffered reasons for losing
confidence. See, e.g., D.E. 116-1 at 22-25 (discussing Burden’s salary and employment goals).
Thus, it cannot be fairly said that Plaintiff has properly disputed Defendant’s facts concerning
Cason’s reasons for wanting to remove Burden. Nevertheless, for this Court to grant summary
judgment in favor of Defendant, it must satisfy itself that the evidence on the record supports the
undisputed material facts that the movant has proposed. Reese, 527 F.3d at 1269. For the
reasons set forth above, the Court cannot do that with respect to this “legitimate reason” that is
proffered.

-28-

When issues of motivation or fact turn on the credibility of an affiant, summary judgment
is particularly inappropriate, as the court must not weigh credibility. Ala. Farm Bureau, 606 F.2d
at 609; Jones, 683 F.3d at 1292; see also Carlin Comm., Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d
1352, 1360 (11th Cir. 1986) (“[A] court should be wary of placing too much reliance on the
testimony of the movant regarding facts in its exclusive knowledge in granting a motion for summary
judgment . . . .”). Here, Defendant points only to Cason’s affidavit in describing the events that led
her to lose confidence in Burden; it provides no other evidence supporting those events, and Burden
challenges Cason’s version of what happened. He further notes the timing of his dismissal in
relation to the report and Cason’s return from suspension. Under these circumstances, an issue of
material fact concerning the reason for Burden’s termination exists, and the Court must deny
summary judgment to Defendant.
3. Robinson’s FWA Claims
a. Protected Activities
Robinson made the following statements to the Confidential Inquiry14: (i) Cason ordered
Robinson to pay out-of-pocket for a traffic ticket received by a former city official; (ii) Cason’s
secretary had been “digging” around Robinson’s office and may have removed files; (iii) Robinson
had observed Tamika Miller crying in Cason’s office and escorted Miller away; (iv) Cason had
ordered Robinson to work on Christmas Eve and Christmas day so that another officer could be with
his family; (v) Officer Gonzalez, an officer under Robinson’s supervision, had been subject to
complaints for being abusive towards others. D.E. 107, ¶¶ 20-38; D.E. 115, ¶¶ 20-38.

14

Plaintiffs “dispute” only paragraph 36 of Defendant’s Statement of Material Facts
concerning Robinson’s Inquiry statements but fail to elaborate at all or to cite to anything to
support their dispute. D.E. 115, ¶ 36.
-29-

Each of the first four statements directly addresses Cason and her management of the OLPD.
Robinson’s deposition testimony about Officer Gonzalez also makes clear that although, on paper,
Robinson supervised Gonzalez, Gonzalez reported directly to and was protected by Cason, despite
the complaints against Gonzalez. D.E. 116-3 at 119:8-11, 120:9-12. Under Rosa, a reasonable jury
could draw from these statements an inference of a continuous pattern of managerial abuses
constituting gross mismanagement, misfeasance, or malfeasance on the part of Chief Cason.
Therefore, a triable issue of fact exists as to whether these statements amount to a protected activity.
As a result, summary judgment would be inappropriate. See 915 So. 2d at 212. For purposes of the
burden-shifting analysis, Robinson has established a prima facie case of protected activity.
Defendant also objects that the FWA precludes Robinson’s statement about paying the traffic
ticket because he initially had agreed to look into removing the ticket from the system and thus had
“intentionally participated” in the violation for which whistle-blower protection is being sought.
D.E. 106 at 9; see Fla. Stat. § 112.3187(7). Defendant fails to distinguish, however, between the acts
of actually “fixing” the ticket in the system and the inference of managerial abuse that could be
drawn from Cason’s ordering of Robinson to reimburse an individual out-of-pocket for a traffic
ticket that had not been “fixed.”
b. Adverse Action
Next, the Court considers whether Robinson has made a prima facie case of suffering adverse
employment action. Robinson’s initial Complaint indicates that after his participation in the
Confidential Inquiry, he was stripped of his title, assigned to a unit slated for disbandment, physically
relocated to offices outside the OLPD and provided no logistical support, locked out of his office for
a “prolonged period,” and placed on night patrol. D.E. 27, ¶¶ 66-69. All of these actions took place
-30-

before Robinson took leave under the FMLA (discussed below). D.E. 27, ¶¶ 73-74. Robinson was
terminated on August 25, 2011. D.E. 107, ¶ 134.
Plaintiffs point out that Defendant’s Motion for Summary Judgment has failed to address
these non-termination adverse actions taken against Robinson. D.E. 114 at 16. The FWA defines
“adverse personnel action” to include, among other things, “the . . . transfer . . .of any employee . .
. or any other adverse action taken against an employee within the terms and conditions of
employment.” Fla. Stat. § 112.3187(3)(c). Given the liberal construction of the FWA and the
absence of any contention by Defendant that these actions against Robinson do not amount to an
adverse personnel action, Robinson has met his burden of establishing that he suffered an adverse
personnel action both in termination and non-termination respects.
c. Causation, Legitimate Reasons, and Pretext
Like Burden, Robinson alleges that Cason told him that she was aware of what Robinson had
reported to the Confidential Inquiry. D.E. 116-3 at 132:15-16. This contention establishes causation
for the non-termination adverse actions he suffered. However, Robinson cannot establish a prima
facie case for causation for his termination under the FWA. Not only did his termination occur more
than seven months after his protected activity, but Robinson has pointed to no evidence that Finnie,
the City Manager at the time Robinson was terminated, was aware of the information he provided
to the Confidential Inquiry or that Cason influenced Finnie under a “cat’s paw” theory to terminate
him in retaliation for that information.
Because Defendant has not addressed the non-termination adverse action, and thus not
provided legitimate reasons for those actions, Defendant is not entitled to summary judgment on
those claims. Defendant is entitled to summary judgment, however, to the extent that Robinson
-31-

claims that he was terminated in retaliation for protected activity under the FWA.
3. Lazier’s FWA Claims
Unlike Burden and Robinson, Lazier fails to make a prima facie case for retaliation under
the FWA. Specifically, Lazier fails to establish that she engaged in a protected activity. It is
undisputed that Lazier made the following three statements to the Confidential Inquiry: (i) a Corporal
Faulkner, who had fallen asleep on night shift and was then transferred to the day shift, was not
otherwise punished for falling asleep on duty, but Lazier was ordered to replace him on the night
shift and chose not to do so; (ii) an Officer Holborow drove two intoxicated women home in his
personal car; and (iii) Officer Gonzalez was rude and should have been disciplined. D.E. 107, ¶¶
39-49.
The FWA, however, requires that a protected disclosure provide information on “[a]ny act
or suspected act . . . committed by an employee or agent . . . .” Fla. Stat. § 112.3187(5)(b). Unlike
in the cases of Burden and Robinson, Lazier does not accuse Cason or any other city employee
specifically of being responsible for these managerial problems, nor do Plaintiffs point to any facts
from which a reasonable jury could infer that Cason or another specific individual was responsible.
In fact, Lazier specifically testified in her deposition that she was not complaining about Cason
during the Confidential Inquiry. See D.E. 116-5 at 101:16-21 (“Q: You weren’t complaining about
Chief Cason’s conduct there? Correct? A: No. Q: It was related to general officer morale? A:
Exactly.”); 138:4-8 (Q: Okay. And you agree with me that you didn’t say anything bad about
[Cason] in the Inquiry? Correct? A: No, I didn’t. I didn’t say anything at all bad about her.”).
Similarly, Lazier testified that her statements to the inquiry were intended to improve employee
morale generally, but not to accuse anyone specifically of mismanagement, misfeasance, or
-32-

malfeasance. See D.E. 116-5 at 106:15-107:24. Accordingly, Lazier has failed to make a prima
facie case for whistle-blower retaliation, and Defendant is entitled to summary judgment on Lazier’s
FWA claims.
4. Miller’s FWA Claims
a. Protected Activities
Miller asserts that she made four15 protected statements to the Confidential Inquiry: (i) two
officers engaged in horseplay with a taser that resulted in the calling of medics, but neither officer
was disciplined by Cason; (ii) Cason ordered an officer to drive his patrol car to purchase alcohol
for another officer’s baby shower; (iii) Cason assigned the work of another officer to be completed
at home by Miller while she was on maternity leave; and (iv) Cason refused to punish an officer who
had stolen Miller’s laptop computer. D.E. 107, ¶¶ 50-64; D.E. 116-7 at 86-120. Each of these four
statements directly addresses Cason and her management decisions. Under Rosa, a reasonable jury
could draw from these statements a continuous pattern of managerial abuses constituting gross
mismanagement, misfeasance, or malfeasance on the part of Cason. As such, a triable issue of fact
exists as to whether these statements amount to a protected activity, and summary judgment would
be inappropriate. See 915 So. 2d at 212. For purposes of the burden-shifting analysis, Miller has
established a prima facie case of protected activity under the FWA.
b. Adverse Action

15
In Defendant’s Statement of Material Facts, Miller’s being asked to perform the work of
another and to do so on maternity leave are treated as two separate “statements,” D.E. 107, ¶¶ 5659, but essentially are the same complaint and are acknowledged as such in Miller’s deposition.
D.E. 116-7 at 106:9.

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It is undisputed16 that Miller was voluntarily transferred from the OLPD to the Department
of Code Enforcement in June 2011 and that Miller was promoted to Director of the Department of
Code Enforcement on February 27, 2012. D.E. 107, ¶¶ 161, 167; D.E. 115, ¶¶ 161, 167. Plaintiffs
maintain, however, that in the space of time between Miller’s protected disclosures in January or
February 2011 and her voluntary transfer in June 2011, Miller was subject to various non-termination
adverse personnel actions, including unfavorable assignments, restrictions from earning overtime,
and relocation to a building without adequate logistical support. See, e.g., D.E. 27, ¶¶ 123 -125; D.E.
116-7 at 134:16-17.
Plaintiffs point out that Defendant’s Motion for Summary Judgment fails to address these
adverse actions taken against Miller. D.E. 114 at 16. The FWA defines “adverse personnel action”
to include, among other things, “the . . . transfer . . .of any employee . . . or any other adverse action
taken against an employee within the terms and conditions of employment.”

Fla. Stat. §

112.3187(3)(c). In light of the liberal construction due the FWA and the absence of any contention
by Defendant that these actions against Miller do not amount to an adverse personnel action, Miller
has met her burden of establishing that she suffered non-termination adverse personnel action prior
to her voluntary transfer in June 2011.
c. Causation
Like Burden and Robinson, Miller has alleged that Cason told her that she was aware of what
Miller had told the Confidential Inquiry. D.E. 116-7 at 115:21-116:15. This establishes causation

16
Plaintiffs’ only objections to Defendant’s facts surrounding Miller’s voluntary transfer
relate to the discovery and external document objections discussed previously. D.E. 115, ¶¶ 161,
164. Plaintiffs point to no other facts on the record that would contradict Defendant’s
characterization of these facts.

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for the non-termination adverse actions she suffered. Because Defendant has not provided legitimate
reasons for the non-termination adverse actions that took place prior to June 2011, Defendant is not
entitled to summary judgment on Miller’s FWA claims.
5. Riley’s FWA Claims
Riley claims three protected activities under the FWA: (i) Riley informed Patterson of an
issue involving a code-enforcement officer and a citizen and his opinion that the FBI should be
called in to investigate; (ii) Riley advised Cason about two internal affairs investigations; and (iii)
Riley was instructed to allow the Mayor’s son to complete a late job application. None of these
activities qualify for protection under the FWA.
The first statement, to the extent that it may have disclosed a violation of law, was made only
verbally to Patterson. D.E. 107, ¶ 79. Since Plaintiffs have pointed to no facts indicating that Riley
was instructed to participate in a relevant investigation or inquiry, this complaint was required to be
in writing. See Fla. Stat. § 112.3187(7); Walker v. Fla. Dep’t of Veterans’ Affairs, 925 So. 2d 1149,
1150 (Fla. 4th DCA 2006).
The second statement also fails to qualify as a protected activity. As was the case with
Burden’s informing of Patterson about the FBI investigation, Riley was just briefing Cason about
the status of the two investigations, not reporting any act or violation or suspected act or violation
that would be protected by the FWA. Finally, regarding the third activity, although Riley was
instructed to participate in something that, for the sake of argument only, could be construed as
misfeasance, he never disclosed that misfeasance to anyone as required by the statute. See Fla. Stat.
§ 112.3187(4)(a). Instead, Riley objected to Ruiz-Nicolas only when she instructed him to allow the
application, but he did not disclose the conduct to anyone after the fact. Moreover, even assuming
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Riley’s objections amounted to sufficient “disclosure,” they too were not made in writing as is
required by the FWA. D.E. 107, ¶ 79; see Fla. Stat. § 112.3187(7). Accordingly, Defendant is
entitled to summary judgment on Riley’s FWA claims.
6. Ruiz-Nicolas’s FWA Claims
Ruiz-Nicolas asserts that she engaged in four protected activities: (i) she told Patterson that
the city was providing three city employees with life-insurance benefits inconsistent with the city’s
standard benefits package; (ii) she told Patterson that the Mayor had pressured her into extending
the application period for police officers; (iii) she told Patterson that she had been instructed by the
CSB to hire an individual whom she believed was unqualified; and (iv) she participated in
conducting the Confidential Inquiry and preparing the Inquiry report. D.E. 107, ¶¶ 65-78; D.E. 115,
¶¶ 65-78. The first three of these activities do not constitute protected activity because Ruiz-Nicolas
did not provide her complaints in a written form, and they were not made in response to her
participation in any investigation. D.E. 107, ¶¶ 67, 69, 72; see Walker, 925 So. 2d at 1150.
As for Ruiz-Nicolas’s participation in the Confidential Inquiry and preparation of the Inquiry
report, Ruiz-Nicolas’s claim fails to demonstrate a causal link between her preparation of the report
in January to February 2011 and her termination by Finnie on June 28, 2011. The time span
precludes establishing prima facie causation by temporal proximity. And, unlike in the case of
Burden and Robinson, Plaintiffs have pointed to no evidence on the record17 — and the Court can
find none — that raises a question of material fact regarding whether Finnie knew of Ruiz-Nicolas’s

17

Plaintiffs’ only objections to Defendant’s facts surrounding Ruiz-Nicolas’s termination
relate to the discovery and external document objections previously discussed. D.E. 115, ¶¶ 149160. Plaintiffs point to no other facts on the record regarding her termination and fail to attach
any relevant evidence (such as Ruiz-Nicolas’s complete deposition) to their own opposition
memorandum. See D.E. 116.
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protected activity or whether any other individual was aware of Ruiz-Nicolas’s protected activity and
instructed Finnie to terminate her under a “cat’s paw” theory. Accordingly, Defendant is entitled to
summary judgment on Ruiz-Nicolas’s FWA claims.
B. Family and Medical Leave Act Claims
Plaintiffs Robinson and Lazier also claim that they were terminated in retaliation for their
use of the self-care provisions of the FMLA, 29 U.S.C. § 2612(a)(1)(D). The FMLA provides that
a qualified employee is entitled in any twelve-month period to take a maximum of twelve weeks’
leave and return to the same or an equivalent position. 29 U.S.C. §§ 2612(a)(1), 2614(a)(1);
McGregor v. Autozone, Inc., 180 F.3d 1305, 1308 (11th Cir. 1999) (“The statute provides for only
12 weeks of leave. . . . The statute does not suggest that the 12 week entitlement may be extended.”
(citations omitted)).
As in the case of FWA and Title VII claims, FMLA retaliation claims are analyzed under the
McDonnell Douglas burden-shifting framework. Strickland v. Water Works & Sewer Bd. of City of
Birmingham, 239 F.3d 1199, 1207 (11th Cir. 2001).18 A plaintiff must establish that (1) he engaged
in a protected activity, (2) he suffered an adverse employment decision, and (3) the adverse action
was causally linked to the protected activity. Id.

18
Defendant asserts that Plaintiffs “face the increased burden of showing that the City’s
actions ‘were motivated by an impermissible retaliatory or discriminatory animus.’” D.E. 106 at
16. Defendant is correct that Plaintiffs have an “increased burden” to prove “impermissible
animus” in an FMLA retaliation claim as opposed to an interference claim. To the extent that
Defendant suggests “impermissible animus” is an additional factor, beyond the McDonnell
Douglas framework, that is required in FMLA cases, the Court disagrees. The McDonnell
Douglas framework is how a plaintiff proves “impermissible animus” in the absence of direct
evidence of the employer’s intent. See Lee v. U.S. Steel Corp., 450 F App’x 834, 838 (11th Cir.
2012); Strickland, 293 F.3d at 1206-07.

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If a prima facie case is established, an employer must proffer legitimate reasons for the
termination. Bently v. Orange County, Fla., 445 F. App’x 306, 310 (11th Cir. 2011); see DavisDietz v. Sears, Roebuck & Co., 284 F. App’x 626, 630 (11th Cir. 2008) (citing McDonnell Douglas,
411 U.S. at 802-03). If an employer does so, the burden shifts to the plaintiff to prove that the
employer’s reasons are pretext for retaliation. See Davis-Dietz, 284 F. App’x at 630 (quoting Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). To survive summary judgment, a
“plaintiff must present significant and probative evidence of pretext.” Id. (citing Mayfield v.
Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996)). The evidence must establish a question
of pretext “either directly by persuading the court that a discriminatory reason more likely motivated
the employer or indirectly by showing that the employer’s proffered explanation is unworthy of
credence.” Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006)
(quoting Jackson v. Ala. State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005)). To
demonstrate pretext, plaintiffs must show that a proffered reason is false and that the true reason for
the termination was unlawful. Lee v. U.S. Steel Corp., 450 F App’x 834, 839 (11th Cir. 2012);
Brooks, 446 F.3d at 1160.
1. Robinson’s FMLA Claim
At the outset, Plaintiff has established that a disputed issue of material fact exists concerning
whether Robinson was engaged in a protected activity. While it is undisputed that Robinson was
due to return to work on August 15, 2011, after his twelve-week leave period had expired, D.E. 107,
¶ 93; D.E. 115, ¶ 93, Defendant asserts that Robinson did not return to work. D.E. 107, ¶93.
Robinson, on the other hand, claims that he was instructed to report to the City Manager’s office on
August 15 and did so. D.E. 115, ¶ 93; D.E. 116-4 at 209:23-210:11. This dispute alone raises a
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question of fact regarding whether Robinson returned to work in compliance with the terms of his
FMLA leave. Consequently, Defendant is not entitled to summary judgment on Robinson’s FMLA
claim. 91
2. Lazier’s FMLA Claim
Lazier is unable to sustain her claim for retaliation under the FMLA because she cannot
demonstrate a dispute of material fact over whether the City’s reasons for terminating her are pretext.
Assuming, for the sake of argument, that Lazier has satisfied the burden of establishing a prima facie
case of retaliation under the FMLA, the City has proffered several legitimate, non-FMLA reasons
for Lazier’s termination. Specifically, the City states that an Internal Affairs investigation found that
Lazier compromised OLPD Internal Affairs files, was insubordinate, and exhibited conduct
unbecoming a police officer; that Lazier appeared on television ridiculing the City in violation of the
City’s policies; and that Lazier gave a city-issued firearm to an unqualified civilian employee. D.E.
107, ¶¶ 142-148.
At the outset, Plaintiffs do not dispute20 that Lazier gave a firearm to an unqualified civilian
employee. D.E. 115, ¶146. In fact, Lazier’s own testimony confirms that she gave her weapon to
a civilian human-resources employee. D.E. 116-6 at 54:16-18. This alone is a sufficient justification
for Lazier’s termination. Because Plaintiffs have not identified a dispute of material fact regarding

19

There are also likely disputed material facts regarding Robinson’s subsequent physical
examination and absence from work, as well as regarding the events surrounding Robinson’s
FDLE certification. D.E. 115, ¶¶ 92-97. Because the Court disposes of the summary-judgment
motion on the return-to-work issue, however, the Court does not analyze these other disputes or
consider whether they are even applicable to an FMLA claim of this nature.
20
Plaintiffs dispute this fact only by raising the previously discussed affidavit and external
document objections, but point to no specific evidence on the record.

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the veracity of the firearm incident, Plaintiffs cannot establish this reason as pretext, and Defendant
is entitled to summary judgment on Lazier’s FMLA claim.
Further, Plaintiffs have failed to demonstrate that the other two justifications for Lazier’s
termination are false. Plaintiffs contend that the Internal Affairs investigation, referenced as IA0005, was conducted in violation of the requirements of Florida’s “Law Enforcement Officers’ Bill
of Rights,” Fla. Stat. §§ 112.532-.534. D.E. 114 at 23-24. Plaintiffs, however, do not dispute the
accuracy of the investigation’s findings, namely, that Lazier disobeyed a direct order and permitted
an unauthorized individual access to the Internal Affairs spaces. See D.E. 116-5 at 47:10-15, 48:816. It was upon these facts that Finnie relied when making his termination decision, after
independently reviewing the file. D.E. 107, ¶ 144. Because no factual dispute exists over Lazier’s
insubordination, Plaintiffs cannot establish this reason as pretext.
Additionally, Plaintiffs have produced an August 23, 2011, letter from Barrett informing
Lazier that Internal Affairs investigation IA-0014 had been opened and sustained against Lazier for
contacting WSVN Channel 7 News. D.E. 116-11. Plaintiffs contend that this demonstrates pretext
regarding the television-appearance rationale because the letter says that the investigation was
opened on May 24, 2011, more than two months before Lazier actually appeared on television on
August 16, 2011. While the Court finds the discrepancy curious, it is nonetheless unavailing to
Plaintiffs because they have failed to dispute, and the record confirms, the material fact that Lazier

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appeared on television without prior approval while still employed by the City.21 D.E. 116-5 at
129:6-130:22. Thus, Plaintiffs cannot establish this reason as pretext, either.
Finally, in addition to not demonstrating a dispute of material fact regarding the falsity of
Defendant’s reasons for terminating Lazier’s employment, Plaintiffs also fail to demonstrate that the
true reason for the City’s action was unlawful retaliation or even that retaliation more likely than not
motivated the City’s termination decision.
Specifically, Lazier does not point to any fact that indicates that the City’s reasons were a
pretext for retaliation under the FMLA. In her deposition, Lazier makes only conclusory allegations
of FMLA retaliation and blends them with allegations of retaliation for, among other things,
participating in the Confidential Inquiry. See, e.g., D.E. 116-6 at 175:16-177:24. This is insufficient
to raise an issue of material fact as to pretext for FMLA retaliation. See Bently, 445 F. App’x at 310
(“Conclusory allegations or unsupported assertions of discrimination ‘are not sufficient to raise an
inference of pretext . . . .’” (omission in original) (quoting Mayfield, 101 F.3d at 1376-77)); see also
Schaaf v. Smithkline Beecham Corp., 602 F.3d 1236, 1244 n.3 (11th Cir. 2010) (noting that showing
pretext alone is insufficient and that a plaintiff must show an employer’s reasons were “pretext for
discrimination”(emphasis in original)). Accordingly, Defendant is entitled to summary judgment
on Lazier’s FMLA claim.

21

Plaintiffs also contend in their brief that Lazier had been constructively terminated prior
to her August 16, 2011, television appearance, and thus the City’s regulations did not apply. This
contention is problematic for several reasons. Although Plaintiffs’ brief claims that the City
ceased paying Lazier in the first week of August, D.E. 114 at 24, Lazier herself only mentions
not being paid on August 19, after her television appearance. D.E. 116-6 at 16:3-18:11. Further,
Lazier herself says that she was still an employee of the city when she made her appearance.
D.E. 116-5 at 129:6-9. Accordingly, the record does not support the contention that Lazier was
constructively terminated before August 16, 2011.
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C. Robinson’s Title VII Claim
Robinson also asserts a claim under Title VII for failing to promote him to “acting” Deputy
Police Chief following the termination of Burden in March 2011.22 To make a prima facie case for
discrimination in a failure-to-promote case under Title VII, “a plaintiff must prove: (1) that he is a
member of a protected class; (2) that he was qualified for and applied for the promotion; (3) that he
was rejected; and (4) that other equally or less qualified employees who were not members of the
protected class were promoted.” Denney v. City of Albany, 247 F.3d 1172, 1183 (11th Cir. 2001)
(quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1539 n.11 (11th Cir. 1997)). Robinson, a
white male, alleges that he was discriminated against in favor of Barrett, a black female, who did not
possess the educational requirements necessary for the position. D.E. 27, ¶¶ 117-118. Defendant
maintains that educational requirements do not apply to “acting” positions and that Barrett was
appointed on the basis of her seniority. D.E. 107, ¶103.
Upon review of the record, the Court finds that a question of material fact exists concerning
whether there is an educational requirement for “acting” supervisory positions in the OLPD. Both
sides agree that permanent supervisory positions do have a minimum educational requirement. D.E.
114 at 26; D.E. 107, ¶ 104. Defendant has not disputed that Robinson meets these educational
requirements. Both sides similarly appear to acknowledge that Barrett lacks the educational
prerequisites needed for a permanent supervisory position. D.E. 107, ¶ 105. Thus, Plaintiffs seem

22

Robinson’s Complaint asserts that he should have been promoted to Deputy Police
Chief. D.E. 27, ¶ 114. All of Robinson’s arguments, though, concern why he should have been
chosen instead of Barrett, who filled the position in an “acting” capacity only. D.E 107, ¶ 103.
Robinson does not make any complaints about the selection of Antonio Sanchez, who was placed
in the position permanently in January 2012. D.E. 107, ¶ 106. Accordingly, the Court construes
Robinson’s Title VII complaint to focus solely on the selection of the “acting” Deputy Police
Chief.
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to suggest that the same educational requirements applicable to the permanent position apply to the
acting position, while the City contends that they do not.
To support its view of the policy, Defendant has offered only the affidavit of Luznilda Natal,
who holds the position of “Human Resources Specialist / Safety & Risk” with the City. D.E. 108-13,
¶ 2. In the affidavit, Natal conclusorily states that the educational requirements “do not apply to an
individual who is appointed to an ‘acting’ position.” Id. ¶ 4. Although Natal attests that she has
personal knowledge, she has set forth absolutely no basis in the affidavit for her conclusions about
the applicability of educational requirements to temporary positions. Accordingly, to establish the
existence or nonexistence of a policy concerning the applicability of educational requirements to
“acting” positions, the Court would be required to improperly weigh the credibility of Natal’s
affidavit against Plaintiffs’ denials. Unless the actual policy can be established as a fact beyond
dispute, the Court cannot properly analyze the qualifications aspects of a Title VII prima facie case.
Accordingly, Defendant is not entitled to summary judgment on Robinson’s Title VII claim.
D. Lazier’s COBRA Claim
Finally, Lazier presents a claim under the Comprehensive Omnibus Budget Reconciliation
Act (“COBRA”), asserting that Defendant failed to comply with the notice requirements of 29
U.S.C. § 1166(a)(4)(A) following her termination. However, Lazier does not dispute that in her
termination letter, dated August 25, 2011, Finnie advised her that her benefits would cease after
August 31, 2011, and that she would have the option to continue coverage through COBRA.
D.E.115, ¶ 108. Further, Lazier does not dispute that Coventry Health Care of Florida, the City’s
health insurance provider, mailed a letter to her regarding the procedure for obtaining her COBRA
benefits. D.E.115, ¶ 111.
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The crux of Plaintiffs’ attempt to raise a material dispute of fact regarding notice rests on the
assertion that Lazier never received letters from Finnie or Coventry. In Lazier’s deposition
testimony, she claimed to never have received a letter from Finnie. D.E. 116-5 at 78:1-25. The fact
that Finnie’s letter went unclaimed is confirmed by a print-out from the United States Postal Service
noting that the letter had been processed on August 27, 2011, and was unclaimed as of September
13, 2011. D.E. 108-19 at 14.
The Eleventh Circuit has apparently never addressed the issue of whether COBRA’s notice
requirements are satisfied if an employer mails a notice but it is never received. Other courts that
have confronted the issue find that an employer’s duty is discharged when it in good faith mails the
notice via certified or first class mail to the employee’s last known address. See, e.g., Hearst v.
Progressive Foam Techs., Inc., 641 F.3d 276, 281 (8th Cir. 2011); Holmes v. Scarlet Oaks Ret.
Cmty., 277 F. Supp. 2d 829, 834-35 (S.D. Ohio 2003) (unclaimed certified mail sufficient); Myers
v. King’s Daughters Clinic, 912 F. Supp. 233, 236 (W.D. Tex. 1996); Truesdale v. Pac. Holding
Co./Hay Adams Div., 778 F. Supp. 77, 81-82 (D.D.C 1991). Here, Finnie’s letter was sent via
certified mail to Lazier’s last known address.24 Plaintiffs have pointed to no evidence of bad faith
on the part of Finnie or anyone else concerning the COBRA notice. Therefore, as a matter of law,
Defendant complied with its duty under COBRA and is entitled to summary judgment on Lazier’s
COBRA claim.
Plaintiffs also attempt to raise a number of other issues regarding Lazier’s health benefits,
but none of them are relevant to the underlying COBRA notice claim. Plaintiffs argue in their

24
This is, in fact, her current address, as confirmed by Lazier in her deposition. D.E. 1165 at 78:4-7.

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Response Brief that there is a dispute concerning the actual date of Lazier’s termination. D.E. 114
at 28. But Plaintiffs do not point to any facts in the record that support the disputed date of
termination. D.E. 115, ¶ 147; see Note 21, supra. (finding insufficient evidence in the record to
support Lazier’s contention of a constructive termination prior to her actual termination).
Regardless, even assuming, arguendo, that Lazier was terminated at the beginning of August,
Finnie’s August 25 letter falls within the notice time frame provided by the statute.25
Plaintiffs also appear to claim in their Response Brief that Lazier’s benefits and pay were
impermissibly stopped at the beginning of August before her employment was terminated. D.E. 114
at 27-28. Such claims are irrelevant to the COBRA notice claim. They would probably be more
appropriately characterized as claims under the Employee Retirement Income Security Act
(“ERISA”) or Fair Labor Standards Act (“FLSA”), but regardless, were not pleaded by Plaintiffs.
It is improper for Plaintiffs to raise new claims in their response brief to a summary judgment
motion. Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004).
Finally, Plaintiffs dispute the City’s assertion that it extended Lazier’s health benefits through
September 30, 2011. D.E. 107, ¶ 109. Lazier claims that she learned that her benefits ceased on
August 31, 2011, during an August or September 2011 doctor’s visit. D.E. 115, ¶ 109 (citing D.E.
116-5 at 119). Nevertheless, whether the City chose to extend Lazier’s benefits through September
30, 2011, is immaterial to the issue of whether the City provided proper notice under COBRA.

25
The statute provides that an employer must notify a plan administrator within 30 days,
and a qualified beneficiary within 14 days after that. 29 U.S.C. § 1166(a)(2), (c). In cases of
termination, such as Lazier’s, the covered employee is considered a qualifying beneficiary. Id. §
1167(3)(B).

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V. CONCLUSION
Accordingly, for the foregoing reasons, the Court DENIES IN PART and GRANTS IN
PART Defendant City of Opa Locka’s Motion for Summary Judgment [D.E. 106]. The Motion is
DENIED with respect to Counts II, VI, VII, VIII, and X. The Motion is GRANTED with respect
to Counts IV, XII, XIII, XIV and XVI. Further the Motion is GRANTED with respect to Burden’s
claim for whistle-blower protection on statements he made to Patterson concerning the FBI
investigation and Robinson’s claim that he was terminated in retaliation for his statements to the
Confidential Inquiry.
DONE and ORDERED at Fort Lauderdale, Florida this 7th day of October 2012.

___________________________________
ROBIN S. ROSENBAUM
UNITED STATES DISTRICT JUDGE
Copies:
Counsel of record

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