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Butler v. Johnson

United States District Court, N.D. Florida, Tallahassee Division

January 9, 2017

TORREY JOHNSON et al., Defendants.


          Robert L. Hinkle United States District Judge.

         The 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.

         The 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 purpose.


         A 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.).

         If the 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 speech.” Id.

         For 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).


         On a 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).


         Mr. 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.

         Most of 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.

         But 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.

         If Mr. Hodgson and Mr. Johnson caused these things to occur in retaliation for Mr. Butler's protected speech, ...

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