The opinion of the court was delivered by: Richard Smoak United States District Judge
Before me are Defendant's Motion for Summary Judgment (Doc. 41), Memorandum in Support (Doc. 44), and Statement of Facts (Doc. 43), and Plaintiff's Response in Opposition (Doc. 52) and Statement of Facts (Doc. 51).
Plaintiff has brought a two count complaint alleging causes of action under Florida's Whistleblower Act, and federal retaliation statute. (See Doc. 1).
Plaintiff is an employee with Defendant Florida Department of Corrections ("DOC"). On March 17, 2008, Plaintiff testified in a sexual harassment suit filed by a fellow employee. He claims that Defendant retaliated against him for this protected activity. On November 3, 2008, Plaintiff was suspended for a period of ten days. Plaintiff filed an appeal with the Public Employee Relations Committee ("PERC") which resulted in a January 2009 settlement agreement. (Doc. 37, Attach. 1&2).
On August 13, 2009, Defendant terminated Plaintiff's employment. (Doc. 32, Attach. 11). Plaintiff contends that the termination was caused by Plaintiff's disclosures of misfeasance, malfeasance, and gross misconduct which is protected by Florida's whistleblower statute. (Compl., ¶ 14). Plaintiff appealed his termination to PERC pursuant to FLA. STAT. §110.227. This process resulted in a December 2009 order that Defendant was to "reinstate [Plaintiff] to his former position or a position having the same degree of responsibility as his former position." Defendant was also ordered to pay Plaintiff back pay and benefits. Id.
Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56 (c). In other words, the basic issue before the court is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S. Ct. 2505, 2512 (1986). The moving party has the burden of showing the absence of a genuine issue as to any material fact, and in deciding whether the movant has met this burden, the court must view the movant's evidence and all factual inferences arising from it in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). Thus, if reasonable minds could differ on the inferences arising from undisputed facts, then a court should deny summary judgment. Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, a mere 'scintilla' of evidence supporting the nonmoving party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 251).
The parties agree that Plaintiff cannot recover for damages for his August 2009 termination. (See Doc. 52, p.2). This would result in a double recovery as the PERC has already made Plaintiff whole for his termination. Plaintiff contends that his whistleblower retaliation claim seeks to redress alleged violations that occurred after the PERC's order. (Doc. 52, p.2). Namely, Plaintiff claims that Defendant illegally placed Plaintiff at Holmes Correctional Institution, rather than the Northwest Florida Reception Center ("NWFRC") which harmed his career and increased his travel expenses. Id. Because these allegations occurred subsequent to the PERC order, they are not barred, and summary judgment is inappropriate.
The parties agree that Plaintiff cannot recover for damages for his November 3, 2008, suspension because of the January 2009 settlement agreement. (Doc. 52, p.4). Plaintiff contends that his retaliation claim seeks to redress alleged violations that occurred after the settlement agreement. (Doc. 52, p.4). These post-settlement allegations are appropriate for consideration. Defendant nevertheless asserts that Plaintiff has not stated a viable claim.
To establish a prima facie case of retaliation under Title VII, 42 U.S.C. § 2000e et seq., Plaintiff must show that (1) he engaged in statutorily protected expression; (2) he suffered an adverse employment action; and (3) the adverse action was causally related to the protected activity. ...