United States District Court, N.D. Florida, Tallahassee Division
ORDER GRANTING SUMMARY JUDGMENT IN PART
L. Hinkle United States District Judge.
plaintiff Timothy Butler is a correctional officer who made
statements about his employer, the Florida Department of
Corrections, in a television interview and in testimony to a
Florida Senate committee. He says he suffered a wide range of
adverse treatment in retaliation for the statements. He
asserts a claim under the First Amendment and 42 U.S.C.
§ 1983 against three defendants: his warden Christopher
Hodgson; another officer in the chain of command, Colonel
Torrey Johnson; and an investigator in the Inspector
General's office, Darryl Cherry.
defendants have moved for summary judgment. This order grants
summary judgment for Mr. Cherry but denies summary judgment
for Mr. Hodgson and Mr. Johnson. This order briefly sets out
the basis for the ruling. Trial is imminent. A more complete
description of the facts and governing law would serve no
four-stage analysis governs a public employee's First
Amendment claim. See, e.g., Moss v. City of
Pembroke Pines, 782 F.3d 613, 617-18 (11th Cir. 2015).
First, the court must determine whether the employee spoke as
a citizen on a matter of public concern. Id. at 617.
If so, then the court weighs “the employee's First
Amendment interests against the employer's interest in
regulating the employee's speech ‘to promote the
efficiency of the public services it performs through its
employees.' ” VanDeWalle v. Leon Cty.
Fla., No. 16-10129, 2016 WL 4709079, at *3 (11th Cir.
Sept. 9, 2016) (quoting Moss, 782 F.3d at 618.).
“These first two matters are questions of law that
determine whether the employee's speech is protected by
the First Amendment.” Id. (citing
Moss, 782 F.3d at 618.).
employee satisfies the first two stages, he must show that he
suffered an “adverse employment action” and that
his protected speech “was a substantial motivating
factor” in the employer's decision to take that
action. Id. at *3. “Once that showing has been
made, the burden then shifts to the employer to prove, by a
preponderance of the evidence, that it would have terminated
the employee even in the absence of [the] protected
this purpose-that is, for a retaliation claim as
distinguished from an original discrimination claim-an
“adverse employment action” is an action that
“well might have ‘dissuaded a reasonable worker
from making or supporting a charge of discrimination.'
” Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006) (quoting Rochon v.
Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)). Older
Eleventh Circuit cases adopting a more exacting standard are
no longer good law. See Nash-Utterback v. Sch. Bd. of
Palm Beach Cty., No. 11-cv-80513-JMH, 2012 WL 12865852,
*15 (S.D. Fla. June 8, 2012).
summary-judgment motion, disputes in the evidence must be
resolved, and all reasonable inferences from the evidence
must be drawn, in favor of the nonmoving party. The moving
party must show that, when the facts are so viewed, the
moving party “is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). A summary-judgment
motion cannot be used to resolve in the moving party's
favor a “genuine dispute as to any material
fact.” Fed.R.Civ.P. 56(a).
Butler plainly spoke on matters of public concern. His
purpose was to bring important issues to the attention of the
public and the Legislature. His interest in speaking
outweighed the Department's interest in controlling the
speech. In short, he engaged in protected speech.
the consequences Mr. Butler says he suffered do not rise to
the level of an adverse employment action. An example is Mr.
Cherry's investigation of Mr. Butler's alleged
insubordination. Any correctional officer who is
insubordinate may be investigated. The record establishes
without genuine dispute that Mr. Butler refused to answer a
superior officer's questions and thus was at least
arguably insubordinate; there were good grounds for an
investigation. The risk that acts of possible insubordination
may be investigated is present whether or not an officer
exercises First Amendment rights, so the risk of such an
investigation would not deter a reasonable officer from
speaking out. Mr. Cherry is entitled to summary judgment both
because conducting the investigation did not violate Mr.
Butler's rights and because the investigation was not an
adverse employment action.
when the record is properly viewed in the light most
favorable to Mr. Butler, the record would support a finding
that he suffered other consequences that do rise to
the level of an adverse employment action. He lost overtime.
He was not warned of an inmate's threat to attack him.
And when he called for backup during a disturbance, officers
were slow to respond.
Hodgson and Mr. Johnson caused these things to occur in
retaliation for Mr. Butler's protected speech, ...