Anderson v. Florida Department of Environmental Protection
Filing
88
OPINION ORDER granting 72 Defendant's Motion for Summary Judgment. Signed by Judge Daniel T. K. Hurley on 7/1/13. (lr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 12-80931-CV-HURLEY/HOPKINS
LENNON ANDERSON,
Plaintiff,
v.
JILL S. CREECH,
Defendant.
_________________________________/
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court upon Defendant’s Motion for Summary Judgment [ECF
No. 72]. The motion is fully briefed, and is ripe for adjudication. For the reasons to follow, the
Court will grant the motion and enter judgment in Defendant’s favor.
I. BACKGROUND
This case arises from the termination of Plaintiff’s employment at the Southeast District of
the Florida Department of Environmental Protection (“DEP”) on August 13, 2012. Plaintiff alleges
that Defendant Jill Creech’s decision to terminate his employment was impermissibly motivated by
racial animus. Defendant denies this claim and asserts that her decision to terminate was a justified
personnel action based on her belief that Plaintiff lacked adequate management skills.
A.
Events Leading Up to Plaintiff’s Termination
Plaintiff began working at the DEP on November 2, 1992, eventually being appointed the
Program Administrator (“PA”) for the Air Program in the Southern District on January 4, 2009. As
PA, Plaintiff led the program and supervised its staff of approximately ten employees. Defendant,
meanwhile, became the Director of the Southeast District on May 31, 2011, in which role she
supervised Plaintiff.
In response to government initiatives indicating a need for increased efficiency, in early 2012
Plaintiff designed and implemented an “SED Air Dashboard” as a means to measure and evaluate
his subordinates’ use of time. The Dashboard required workers to log their time—weekly, at first,
and then daily for increments of fifteen minutes or more—to account for every task while at work.
Plaintiff then reviewed the logs to determine whether any time was unaccounted for and whether
workers were spending appropriate amounts of time on each task.
It was around this time, in early 2012, that Air Program staff began to voice complaints about
Plaintiff’s management style and accountability programs to human resources representatives
(specifically, Nancy Delosantos) and Plaintiff’s superiors (specifically, Kevin Claridge, who was at
that time the assistant director of the Southeast District). Claridge responded to these complaints
by working with Plaintiff to improve his management style—e.g., by encouraging him to relax the
time-tracking requirements and to communicate in person rather than in “long strings of
unproductive e-mails.” Motion Ex. G, 2-3 [ECF No. 72-3, at 12-13]. Claridge was eventually
promoted to another position on June 25, 2012.
Throughout July of 2012, Plaintiff questioned two of his subordinates—Lee Hoefert and
Nicole Stallings—about their use of time in fulfilling job responsibilities and determining whether
they were up to date on their Dashboard accountability reports.
In response to Plaintiff’s
questioning, Hoefert and Stallings complained to the main human resources department in
Tallahassee on July 24, 2012. Response Ex. 2, ¶ 4 [ECF No. 72-2]. The complaint was assigned
2
to Geraldine Austin, who performed a preliminary investigation that consisted of discussing the
matter with the complainants, speaking with Claridge, and reviewing the circumstances surrounding
the departures of four of Plaintiff’s former subordinates who had left during his tenure. Austin’s
initial assessment was that Plaintiff had “tak[en] micro-managing to a new level.” Id. at 9.1 Before
her investigation was complete, Austin notified another human resources officer, Robert Wilson, of
Austin’s preliminary findings. Id. ¶ 4. Wilson then contacted Defendant to report that Human
Resources had received the complaint and conducted an investigation that “substantiated the
existence of management problems . . . that were affecting employee morale, their ability to
effectively perform their work duties and had caused some employees to leave.” Response, Ex. 4,
¶ 11 [ECF No. 72-4]. Faced with these issues and in light of her prior efforts to help Plaintiff
improve his management skills, Defendant decided to terminate Plaintiff. Id. When Austin learned
this, she decided it was unnecessary to complete her investigation, but by that time she had already
concluded that a stressful environment existed and that Plaintiff’s time-reporting requirements were
too rigid and no longer necessary. Response Ex. 2, ¶ 4-5 [ECF No. 72-2].
During the time Austin was conducting her investigation and before Defendant had
determined to fire Plaintiff, friction continued to exist between Plaintiff and Hoefert and Stallings.
On July 26, Plaintiff e-mailed Hoefert to state that he would be issuing Hoefert an official oral
reprimand. On the same day, Stallings responded to one of Plaintiff’s e-mails asking her about her
use of time in a manner Plaintiff perceived as discourteous. Plaintiff sought advice on how to handle
1
This citation refers to the page number in the header at the top of the documents generated
by CM/ECF rather than to the internal page numbers at the bottom, which are inconsistent.
3
Hoefert and Stallings’ perceived insubordination from a fellow PA, who stated he did not want to
get involved, and from Defendant, who directed Plaintiff to schedule a meeting.
The meeting took place on July 30 and was attended by Plaintiff, Defendant, Hoefert, and
another employee.2 Defendant advised the Air Program employees to resolve the problems they had
been having because they would not like the outcome if she had to resolve them herself. 2d Am.
Compl. ¶ 98-99 [ECF No. 67]; 2d Am. Compl. Ex. 72 [ECF No. 67-3, at 37]. However, Plaintiff
continued to experience problems with Hoefert and Stallings, and on August 1 he met with
Delosantos to discuss disciplinary options. Plaintiff first stated that he intended to terminate
Stallings, but Delosantos encouraged him to wait until Stallings returned from maternity leave.
Plaintiff then decided to issue Letters of Concerns to both Stallings and Hoefert, which is a low form
of discipline3 that falls below issuing an official reprimand. Plaintiff drafted the letters and
submitted them to Delosantos and Human Resources Consultant Jessica Cherry in Tallahassee for
review.
On August 9, before Plaintiff could issue the Letters of Concern, Defendant scheduled a
meeting with Plaintiff and Delosantos for August 13. At the meeting, Defendant informed Plaintiff
he was being let go because of his poor leadership skills, his decision to contact Tallahassee about
disciplinary action after Defendant had told him to resolve the problems in his program internally,
and the departure or desire to leave of several of his subordinates.
2
Stallings was unable to attend but met with Plaintiff and Defendant later that day and
received the same message.
3
In fact, Plaintiff states that under DEP guidelines, a letter of concern is not officially
considered “disciplinary action.”
4
B.
Incidents Prior to 2012
Although Plaintiff generally received satisfactory reviews prior to Creech’s arrival as Director
of the Southeast District in May of 2011 and received several awards (e.g., employee of the month),
Plaintiff was involved in several incidents regarding his performance.
In August 2010, after then-Director Jack Long and Assistant Director Claridge confronted
Plaintiff about having encountered one of Plaintiff’s subordinates sleeping at his desk, Long objected
to the tone of Plaintiff’s e-mail response. Response Ex. 3-F1 [ECF No. 73-3, at 4]. In October 2010,
Long expressed disappointment in Plaintiff’s handling of a “sensitive” permit request because
Plaintiff failed to talk to Long first as requested. Response Ex. 3-F2 [ECF No. 72-3, at 7]. Long also
commented on Plaintiff’s lack of judgment in sending an e-mail.4 Finally, in April of 2011, Claridge
told Plaintiff that he found a comment in an e-mail he wrote to a departing employee to be “sarcasm,
unnecessary, and unproductive,” and Jessica Cherry stated that she found the comment “rude,
condescending and . . . unnecessary.” Response Ex. 3-F3 [ECF No. 73-3, at 8-9].
In September 2011, shortly after Defendant was appointed as Director of the Southeast
District, she placed Plaintiff on a performance improvement plan to address his interpersonal and
communication skills. At that time she also encouraged Plaintiff to consider other employment
options that would emphasize technical over soft skills. After a few months, Plaintiff was removed
from the improvement plan. Response Ex. 4, ¶ 5 [ECF No. 72-4].
4
The e-mail was sent at 8:06 a.m. on October 7, 2010 to someone called Cindy Phillips, but
no other details appear in the record.
5
C.
The Instant Lawsuit and Motion for Summary Judgment
Shortly after Plaintiff was terminated, he commenced this action arguing that his termination
was impermissibly motivated by racial bias in violation of the Equal Protection Clause of the
Fourteenth Amendment of the Constitution.
Plaintiff originally sued the Florida DEP but
subsequently amended his claim to name Jill Creech individually as the sole defendant. Plaintiff
sues under 42 U.S.C. § 1983, which provides a monetary remedy to an individual who has been
deprived of a constitutional right by someone acting under color of law. Defendant then filed the
instant Motion for Summary Judgment arguing that she is entitled to qualified immunity and that
Plaintiff has failed to state a claim for a constitutional violation.
II. JURISDICTION
The Court has subject matter jurisdiction over this action under 28 U.S.C. § 1331, as it is an
action arising under the Constitution of the United States. Venue is proper because the acts
underlying Plaintiff’s claims took place in this district. 28 U.S.C. § 1391(b)(2).
III. DISCUSSION
Summary judgment is warranted if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue of material
fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c);
Celotex Corp. v. Cattrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of meeting
this exacting standard. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). In determining
whether summary judgment is appropriate, facts and inferences from the record are viewed in the
light most favorable to the non-moving party, and the burden is placed on the moving party to
6
establish both the absence of a genuine issue of material fact and its entitlement to judgment as a
matter of law. See Matsuhita Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986).
Defendant argues that she is entitled to summary judgment based on the doctrine of qualified
immunity. Qualified immunity offers “protection for government officials sued in their individual
capacities as long as their conduct violates no clearly established statutory or constitutional rights
of which a reasonable person would have known.” Lee v. Ferraro, 284 F.3d 1188, 1193-94 (11th
Cir. 2002). Thus, the first step in evaluating an assertion of qualified immunity is to determine
whether the defendant is a public official who was acting within the scope of her discretionary
authority in performing the allegedly wrongful acts. Id. at 1194. If the defendant makes this
showing, the burden shifts to the plaintiff to show that the defendant (a) deprived him of a
constitution right and (b) that the right was clearly established at the time of the violation. Id.
In the instant case, the parties do not dispute that the threshold requirement—i.e., that
Defendant is a public official who acted within the scope of her authority in firing Plaintiff—is met.
The question therefore becomes whether Plaintiff can show that Defendant deprived him of a
constitutionally protected right that was clearly established at the time.
The constitutional right Plaintiff asserts is his Fourteenth Amendment right to be free from
racially-based employment discrimination. To prove employment discrimination under the Equal
Protection Clause, a plaintiff must show either direct evidence of discrimination or circumstantial
evidence under the McDonnell-Douglas analysis. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). The Court has previously determined that Plaintiff had not alleged direct evidence of
7
discrimination, see Order Granting Def.’s Mot. Dismiss [ECF No. 59], and Plaintiff has not added
any new allegations that would serve as direct evidence. The Court will therefore evaluate whether
Plaintiff’s amended pleadings allege circumstantial evidence of discrimination.
Under McDonnell-Douglas, a plaintiff must show that (a) he is a member of a protected class,
(b) he was subjected to an adverse employment action, (c) he was qualified for the job, and (d) the
employer treated similarly-situated employees outside of the protected group more favorably. BurkeFowler v. Orange Cnty., Fla., 447 F.3d 1319 (11th Cir. 2006). Then the burden shifts to the
defendant to show a legitimate, non-discriminatory justification for its treatment of the plaintiff, and
then, if it does so, the burden shifts back to the plaintiff to prove that the defendant’s justification
is merely a pretext for discrimination. Id.
For the purposes of the instant motion, Defendant concedes all but the last prong of the prima
facie case—i.e., whether Plaintiff can show that Defendant treated similarly-situated employees
outside of his racial group more favorably. Plaintiff has attempted to meet this requirement by
pointing to three fellow supervisors who, he asserts, are valid comparators. Before turning to these
individuals, the Court notes that, to be a valid comparator, the person must have engaged in “nearly
identical” conduct to the conduct that precipitated the plaintiff’s adverse employment action.
Maniccia v. Brown, 171 F.3d 1364, 1368-69 (11th Cir. 1999) (“We require that the quantity and
quality of the comparator's misconduct be nearly identical to prevent courts from second-guessing
employers' reasonable decisions and confusing apples with oranges.”). If “[n]on-discriminatory
differences just as readily explain the difference in treatment,” which is to say if the Plaintiff and the
proffered comparators were treated differently because the employer believed they did, in fact,
8
engage in different conduct, no inference of discrimination is created.
See Nix v. WLCY
Radio/Rahall Commc’ns, 738 F.2d 1181, 1186-87 (11th Cir. 1984) (citing Chescheir v. Liberty Mut.
Ins. Co., 713 F.2d 1142, 1148 (5th Cir. 1983). Although the “nearly identical” standard is often
difficult to meet, absent “conduct [that is] so unfairly discriminatory that no reasonable person would
find it non-actionable,” Plaintiff must meet this standard in order to establish a prima facie case.
McCann v. Tillman, 526 F.3d 1370, 1374 n.4 (11th Cir. 2008).
A.
Relevant Conduct
It is equally important to identify the relevant conduct that serves as the basis for comparison
between Plaintiff and the proffered comparators. In a typical employment discrimination case, the
plaintiff/employee who was terminated or suffered an adverse employment action will point to other
employees of a different race who engaged in the same conduct as the plaintiff/employee but
received less severe discipline. Quite often, the complained of conduct is a discrete, easily-identified
incident. In the case at bar, however, Defendant asserts that Plaintiff was terminated for an overall
assessment of deficient management skills. Competent leadership is a critical component for any
organization and the Court fully recognizes that “[a]n employer’s decision may properly be based
on subjective factors,” Allison v. W. Union Tele. Co., 680 F.2d 1318, 1322 (11th Cir. 1982), and that
“[a]bsent evidence that [the] subjective . . . criteria were used as a mask for discrimination,” these
decisions will be upheld. Denney v. City of Albany, 247 F.3d 1172, 1185 (11th Cir. 2001). As the
Eleventh Circuit explained in Chapman v. AI Transport,
[S]ubjective evaluations of a job candidate are often critical to the decision making
process, and if anything, are becoming more so in our increasingly service-oriented
economy. . . . Personal qualities also factor heavily into employment decisions
concerning supervisory or professional positions. Traits such as common sense, good
9
judgment, originality, ambition, loyalty, and tact often must be assessed primarily in
a subjective fashion, yet they are essential to an individual’s success in a supervisory
or professional position.
229 F.3d 1012, 1033-34 (11th Cir. 2000) (internal quotations and citations omitted). Thus, to avoid
second guessing an employer’s permissible business decisions by “confusing apples with oranges,”
it is especially crucial for Plaintiff in the instant case to show valid comparators who engaged in
“nearly identical conduct” as Plaintiff. Mannicia, 171 F.3d at 1368; see also Burke-Fowler, 447 F.3d
at 1322 n.2. In attempting to identify suitable comparators, courts have drawn distinctions based on
the quantity and quality of the alleged misconduct, Mannicia, 171 F.3d at 1369, and various other
significant details of the comparators’ characteristics. See, e.g., Burke-Fowler, 447 F.3d at 1325 (the
plaintiff “pursued a romantic relationship with an incarcerated person shortly after he left her direct
supervision,” while the comparators “had relationships with people who subsequently became
incarcerated”); Chapman, 229 F.3d at 1035 (distinguishing the plaintiff from other interview
candidates on the basis of the employer’s subjective opinion that the other candidates offered
“sharper” answers, gave a better presentation of their work histories, and took a more “aggressive
approach in asking . . . questions about the position”).
While allowing for subjective criteria, the Eleventh Circuit has held that an employer’s
explanation of its reasoning “‘must be clear and reasonably specific.’” Chapman, 229 F.3d at 1034
(quoting Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 258 (1981)). The specific
explanation articulated by Defendant of the essential factors contributing to Plaintiff’s termination
were that she had to intervene to address problems in Plaintiff’s program, that employees were
leaving his program, that he had previously had issues regarding his management, and that his
10
employees had complained to Tallahassee and that the ensuring investigation revealed that
management problems existed. See 2d Am. Compl. Ex. 84, 2-3 [ECF No. 67-4, at 14-15]; Motion,
Ex. 4, ¶¶ 4, 11-12 [ECF No. 72-4].
As an initial matter, Defendant has suggested that valid comparators be limited to program
administrators or others with an equivalent position in the DEP hierarchy. The Court rejects this
criterion as too narrow and, instead, will consider whether a proffered comparator exercised a level
of supervisory authority similar to that held by the Plaintiff. See Lathem v. Dept. of Children &
Youth Servs., 172 F.3d 786, 793 (11th Cir. 1999) (“The relevant inquiry is not whether the
employees hold the same job titles . . . .”).
Also, while Defendant in her termination rationale cited the fact that Plaintiff had been the
subject of complaints to Tallahassee, the Court views the substantive issue to be whether the
complaints were indicative of valid underlying management problems. See Motion, Ex. 4, ¶¶ 11
[ECF No. 72-4] (“Mr. Wilson’s office had conducted an investigation which substantiated the
existence of management problems in [Plaintiff’s] program . . . .”).
The record evidences the following history of problems with Plaintiff’s management style:
(a) Plaintiff’s previous supervisors had criticized his management style; (b) Defendant had
previously placed Plaintiff on a performance improvement plan relating to his management and
leadership skills; (c) the central human resources office in Tallahassee had conducted a preliminary
investigation and confirmed there were problems with Plaintiff’s management style; and (d)
Plaintiff’s management style had caused discord within his program. Against the record background,
the Court will now evaluate whether the proffered comparators have sufficiently similar conduct that
11
more favorable treatment would create an inference of discrimination under McDonnell-Douglas.
B.
Comparators
Plaintiff’s three proposed comparators are Jennifer Smith, a white female program
administrator, Paul Wierzbicki, a white male who served as a supervisor of waste cleanup, and John
Armstrong, a white male engineering supervisor. Plaintiff emphasizes that, like him, each of the
proposed comparators proposed to undertake some form of disciplinary action regarding one or more
of their subordinates. The Court, however, has concluded that in focusing on actual or proposed
disciplinary actions, Plaintiff has too narrowly focused on one aspect of a manager’s responsibility
without addressing the legitimacy or necessity for the supervisor’s act and without any consideration
of the comparators’ history of leadership or management problems. Whether a proposed comparator
intended to or did discipline a subordinate does not address whether they had leadership or
management problems, and this is what Plaintiff is required to show in order to demonstrate “nearly
identical” conduct. This is a fatal flaw in Plaintiff’s effort to identify valid comparators.
1. Jennifer Smith
Jennifer Smith, a white female, is the Program Administrator of the Environmental Program
in the Southeast District. Like Plaintiff, Smith sought to discipline a subordinate by issuing an
official reprimand to Rachel Osborne for poor performance and insubordination on February 24,
2012 for being late on seven occasions and for speaking negatively about a superior other than Smith
after he had left the room. 2d Am. Compl. Ex. 88 [ECF No. 67-4, at 39]. However, unlike Plaintiff,
Smith had not been placed on an improvement plan regarding her management and communication
skills. In addition, the central human resources department in Tallahassee had not investigated
12
Smith’s management techniques and conclude that a problem existed that Defendant would have to
resolve personally. Finally, while Smith also had a number of her subordinates voluntarily leave her
program, ten compared to only five for Plaintiff, Defendant points out that Smith’s program included
twenty-five employees compared to only nine in Plaintiff’s. Thus, when viewed in proportion, there
was less reason to believe that Smith’s leadership style was causing high turnover among her staff
relative to Plaintiff.
Considering the foregoing, the Court concludes that Smith does not qualify as a valid
comparator because she did not have the same history of problems with her management style, nor
had a finding been reported to Defendant that a current problem existed in Smith’s department that
Defendant would have to address. Because of this, regardless of whether Smith is comparable in
terms of her supervisory authority, personnel movement, or use of disciplinary measures, Smith was
not involved in the “nearly identical” conduct required to serve as a valid comparator.
2. Paul Wierzbicki
Paul Wierzbicki, a white male, is a Waste Cleanup Supervisor in the Waste Program. As a
supervisor, he reports to the Program Administrator and is thus one level below Plaintiff in the DEP
hierarchy. Response, Ex. 4, ¶ 8 [ECF No. 72-4]. Wierzbicki apparently contemplated issuing a
written reprimand to one of his subordinates based on unprofessional comments to another
employee, see 2d Am. Compl. Ex. 99 [ECF No. 67-5, at 22], but Defendant points out that this
reprimand was never actually issued. Response, Ex. 1, ¶ 4 [ECF No. 72-1]. Regardless whether or
not this qualifies as a similarity, Wierzbicki is otherwise distinguishable in that he was never placed
13
on a performance improvement plan regarding his management or communication skills,5 nor had
Tallahassee found a problem between him and his subordinates that would require Defendant’s
involvement as the director of the Southeast Region. In addition, Defendant argues that a significant
distinction can be drawn from disciplinary measures addressing problems between a subordinate and
a third party, as in Wierzbicki’s case, and the disciplinary measures Plaintiff intended to take to
address a problem between his subordinates and himself. Again, considering the totality of
Wierzbicki’s characteristics, the Court finds that he does not qualify as a valid comparator. He
simply did not have the same history of questions regarding his management style or an ongoing
issue in his department as Plaintiff did when he was terminated.
3. John Armstrong
John Armstrong, a white male, is a Professional Engineer Supervisor in the Water Program.
Armstrong issued an official reprimand to a subordinate on June 20, 2012 for “conduct unbecoming
a public employee.” 2d Am. Compl. Ex. 104 [ECF No. 67-5]. In addition, Armstrong was
previously put on an a performance improvement plan regarding his “interpersonal skills,” and
Defendant admits that he had “similar interpersonal difficulties as did [Plaintiff].” Response Ex. 4,
¶ 7 [ECF No. 72-4]. The crucial distinction between Plaintiff and Armstrong is that while
Armstrong does have a history of issues regarding his interpersonal skills, there is no indication in
the record that his management style caused the level of discord as existed among Plaintiff’s
5
Although nothing in the record suggests that Wierzbicki was placed on a performance
improvement plan regarding his management skills, Plaintiff does allege that, at the time of
Plaintiff’s dismissal, both he and Wierzbicki “were on a performance improvement plan designed
to improve accountability, efficiency and performance.” 2d Am. Compl. ¶ 171 [ECF No. 67]. This
allegation is not supported by a citation to any evidence in the record.
14
subordinates. Thus he too fails to qualify as a valid comparator.
C. Conclusion
Because Plaintiff has not identified an appropriate comparator, he has failed to establish a
prima facie case for employment discrimination, and his claim fails. Of course, the Court takes no
position on the wisdom of Defendant’s decision to terminate Plaintiff, who had a very long career
with the Florida DEP and appears to have been successful at least for a large portion of his tenure
there. The Court’s role is not to second guess the management decisions of the DEP officials. See
Maniccia, 171 F.3d at 1368. Rather, the Court can only ask whether Plaintiff has shown that the
Defendant’s decision was improperly motivated by racial discrimination using the rubric established
by case law. Because he has not, the Court must grant Defendant’s motion.
While the foregoing is sufficient to justify granting Defendant’s motion, the Court notes that
even if Plaintiff had established a prima facie case, the burden would merely have shifted to
Defendant to “articulate a legitimate, non-discriminatory reason for the challenged employment
action.” Morgan v. Orange Cnty., Fla., 477 F. App’x 625, 628 (11th Cir. 2012). Without doubt,
the rationale articulated by the Defendant and recounted herein—specifically, the continuing issues
regarding Plaintiff’s management skills—is adequate for this purpose. The burden would then shift
back to the plaintiff to “demonstrate that the employer’s proffered reason is a pretext” for
discriminatory animus. Id. “Provided that the proffered reason is one that might motivate a
reasonable employer, an employee must meet that reason head on and rebut it, and the employee
cannot succeed by simply quarreling with the wisdom of that reason.” Chapman, 229 F.3d at 1030.
Suffice to say that Plaintiff has failed to do this as well. This analysis provides further confirmatory
support for the Court’s resolution of the instant motion.
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Order Granting Defendant’s Motion for Summary Judgment
Anderson v. Creech
Case No. 12-cv-80931-DTKH
IV. CONCLUSION
In light of the foregoing and keeping in mind that it is appropriate to apply the affirmative
defense of qualified immunity “at the earliest possible stage in litigation,” the Court will grant
Defendant’s motion for summary judgment and enter judgment in Defendant’s favor. Pearson v.
Callahan, 555 U.S. 223, 232 (2009); Marsh v. Butler Cnty., Ala., 268 F.3d 1014, 1022 (11th Cir.
2001) (en banc).
It is hereby ORDERED and ADJUDGED that:
1.
Defendant’s Motion for Summary Judgment [ECF No. 72] is GRANTED.
2.
Pursuant to Federal Rule of Civil Procedure 58(a), the Court will enter final judgment
in Defendant’s favor by separate order.
DONE and SIGNED in chambers at West Palm Beach, Florida, this 1st day of July, 2013.
____________________________
Daniel T. K. Hurley
United States District Judge
Copies provided to counsel of record and all pro se parties
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