HERMAN FAILS v. THE BOARD OF TRUSTEES OF THE UNIVERSITY OF WEST FLORIDA (2023)

ORDER GRANTING SUMMARY JUDGMENT

This case is before the Court based on Defendants' motions for summary judgment (Doc. 47, 52). Upon due consideration of the motions, Plaintiff's responses in opposition (Doc. 57, 61), Defendants' reply (Doc. 65), and the evidence submitted by the parties (attachments to Docs. 46, 50, 51, 55, and 56) the Court finds that the material facts are not in dispute and that Defendants are entitled to judgment as a matter of law.

I. Facts

Plaintiff worked as a law enforcement officer for the University of West Florida (UWF) Police Department from January 1994 to April 2020. The UWF Police Department is a relatively small agency, with a total of only twenty-six employees and twenty sworn law enforcement officers.

Plaintiff was thirty-four years old when he was hired, and he was over the age of 40 at the time of all the events described below.

Plaintiff suffers from back issues, a learning disability, and chronic respiratory issues. The respiratory issues started after Plaintiff responded to a chemical fire in 2001 while on duty.

Plaintiff was promoted multiple times over the course of his career, achieving his highest rank, sergeant, by December 2007. As a sergeant, Plaintiff was responsible for supervising a “shift”¹ of officers who patrolled UWF's campus.

There were three ranks above sergeant in the UWF Police Department's hierarchy: captain, assistant chief, and police chief. For the last few years of Plaintiff's employment, Defendant David Faircloth was the captain, Defendant Deborah Fletcher was the assistant chief, and Defendant Marc Cossich was the police chief.

Beginning in 2008, Plaintiff began to believe that he was being passed over for promotions in favor of Fletcher, who was approximately twenty years his junior. In 2008, Fletcher was promoted to lieutenant,² and in 2016, she was promoted to assistant chief, despite Plaintiff having spent more time with the UWF Police Department than her.

In response to Fletcher's 2008 promotion to lieutenant, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), alleging that UWF was committing sex discrimination, age discrimination, and nepotism. Plaintiff would go on to file five more EEOC charges against UWF—two before the end of his employment (in May 2018 and September 2018) and three after his employment ended (in June 2020,³ August 2020, and January 2022).

Plaintiff also availed himself of other federal and state employment rights during the course of his employment at UWF—he made three different reasonable accommodation requests under the Americans with Disabilities Act (ADA) (two of which were granted in full); he requested (and received) five different periods of leave under the Family Medical Leave Act (FMLA);⁴ and he filed twelve ⁵ worker's compensation claims (seven of which were granted).

After Fletcher was promoted to lieutenant in 2008—and even more so after she was promoted to assistant chief in 2016—Plaintiff began to experience what he perceived as negative changes in his working conditions that he attributed to some sort of animus on Fletcher's part.⁶

The most significant change occurred in November 2017 when Plaintiff was reassigned from his duties as patrol sergeant to a role in dispatch where he would be answering 911 calls and coordinating officer responses. This change occurred shortly after Plaintiff was approved to take a year of intermittent FMLA leave to accommodate periodic doctor's appointments and was made even though Plaintiff's doctor never ordered that he be reassigned.

The reassignment to dispatch was a demotion insofar as Plaintiff lost the supervisory authority that he held as a patrol sergeant. Working in dispatch was also a less desirable position for Plaintiff because his learning disability also made the reading-heavy duties in dispatch difficult, and his respiratory issues were irritated by the cigarette smoke that often lingered in the dispatch office.

When Plaintiff voiced his dissatisfaction with the dispatch position, he was reassigned to the role of a security guard. That position had only menial security duties and did not have the supervisory authority Plaintiff enjoyed as a sergeant.

UWF claims that Plaintiff was reassigned for the duration of his intermittent FMLA leave because the unpredictability of his schedule during that period would have made it difficult to ensure that there was always a sergeant assigned to each patrol shift. The record contains no contradictory evidence on this issue.

Plaintiff's pay and title were not changed during the time that he was reassigned to the dispatch and security guard positions, and he was reinstated as a patrol sergeant upon the expiration of his year of intermittent FMLA leave.

After Plaintiff returned to his sergeant position, UWF outfitted the police department's patrol cars with mobile laptops so patrol officers could complete reports while in the field. Shortly thereafter, Captain Faircloth instructed all patrol officers that that they were to complete their reports exclusively on the laptops, rather than on the desktop computers in the police department's offices.

Plaintiff was concerned that completing reports in his patrol car would aggravate his back injuries, so he requested that he be allowed to continue completing his reports at the office desktop computers as he had done prior to the issuance of the laptops.

A representative from UWF's human resource department, in consultation with the police department's leadership, informed Plaintiff that he was welcome to remove his mobile laptop from his vehicle to complete reports, but he would not be allowed to complete reports inside the office. She explained that it was necessary to keep officers in the field while they completed reports in order to maintain police visibility on campus.

About a year later, during a mandatory firearm training on October 15, 2019, Plaintiff witnessed what he perceived to be violations of UWF Police Department policies when an officer who was not a certified firearms instructor conducted a portion of the training and another officer prematurely discharged his firearm at the firing range.⁷ Plaintiff was concerned about these incidents and the way that they were handled, so on October 21, 2019, he emailed a four-page, single-spaced memorandum titled “ ‘Whistleblower and Retaliation’ Letter of Disappointment at the Firing Range” (the “October 2019 Memorandum”) to thirty-nine UWF email addresses, including the entire UWF Police Department.

The October 2019 Memorandum detailed the incidents that occurred during the October 15 firearms training and provided other critiques of the UWF Police Department's current leadership. It also alleged that the UWF Police Department was forced to travel to the further-away Santa Rosa County firing range, rather than the closer Escambia County firing range, because a UWF police officer, Officer Montoya, had been “banned” from the Escambia County range for past misconduct.

Chief Cossich instructed Captain Faircloth to investigate the claims in the October 2019 Memorandum shortly after Plaintiff circulated it. Captain Faircloth's investigation determined that incidents described by Plaintiff in the October 2019 Memorandum were either untrue or did not amount to a policy violation.

Captain Faircloth also investigated the accuracy of Plaintiff's claim that Officer Montoya had been banned from the Escambia County firing range. Captain Faircloth concluded after his investigation that Officer Montoya had not been banned from the Escambia County firing range and that the UWF Police Department was only using the Santa Rosa County firing range because the Escambia County range was closed for renovations.

On November 1, 2019, Plaintiff sent a follow-up email in the same thread he used to circulate the October 2019 Memorandum in which he apologized to Officer Montoya for claiming that she had been “banned” from the Escambia County firing range. He stated in the email that he “had no actual written fact or personal knowledge of that to be true or not.”

After Plaintiff's email admitting that he had no support for his allegation about Officer Montoya, Chief Cossich directed Captain Faircloth to investigate whether Plaintiff had violated a UWF Police Department policy prohibiting defamation of a fellow officer. Captain Faircloth informed Defendant that he was the subject of an internal investigation and attempted to schedule an interview with him, but Plaintiff left work on FMLA leave before the two could meet.⁸

On March 31, 2020, while still on FMLA leave, Plaintiff sent Chief Cossich a letter titled “Letter of Separation into Civilian Life” in which he announced his “retirement” effective the following day—April 1, 2020. Plaintiff claimed in the letter that he was forced into an early retirement—which he referred to as a “constructive discharge”—because Chief Cossich (1) opened an investigation into his alleged defamation of Officer Montoya and (2) and failed to assure him that the UWF Police Department would implement appropriate COVID-19 precautions.

Captain Faircloth completed his investigation after Plaintiff retired. He concluded that Plaintiff's unfounded claim that Officer Montoya had been banned from the Escambia County firing range violated various policies, but Plaintiff was not subjected to any discipline because he was no longer employed by the UWF Police Department.

In October 2020, Plaintiff was found to be permanently and totally disabled by the Social Security Administration. He applied for these benefits in January 2020—several months before he was allegedly “constructively discharged.”

II. Procedural Background

In March 2022, Plaintiff filed suit against UWF and three individual defendants (Chief Cossich, Assistant Chief Fletcher, and Captain Faircloth) alleging a multitude of claims under state and federal law. Defendants removed the case to this Court based on federal question jurisdiction under 28 U.S.C. § 1331 and responded to the complaint with a motion to dismiss. Plaintiff responded to the motion to dismiss with an amended complaint, and in due course, he filed the operative second amended complaint (Doc. 22), which Defendants answered.

The second amended complaint alleges fourteen counts: disability discrimination against UWF in violation of the Florida Civil Rights Act (FCRA) (Count I), ADA (Count II), and Rehabilitation Act (Count VIII); age discrimination against UWF in violation of the FCRA (Count V) and the Age Discrimination in Employment Act (ADEA) (Count VI); retaliation against UWF in violation of the FCRA (Count III), ADA (Count IV), ADEA (Count VII), Florida worker's compensation law (Count XI), and the First Amendment (Count X); retaliation in violation of the First Amendment against Assistant Chief Fletcher (Count XI), Captain Faircloth (Count XII), and Chief Cossich (Count XIII) in their individual capacities; and retaliation against an unspecified “Defendant” (presumably UWF) in violation of the FCRA (Count XIV).

The parties engaged in an extended period of discovery after which Defendants filed a joint motion for summary judgment on all claims asserted in the second amended complaint. The individual defendants filed a separate motion for summary judgment arguing that they were entitled to qualified immunity on the claims against them in their individual capacities.

The motions are fully briefed and ripe for rulings. No hearing is needed to rule on the motions.

III. Standard of Review

“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). An issue of fact is “material” if it would change the outcome of the litigation, and a dispute about a material fact is “genuine” if the evidence is such that it could lead a reasonable factfinder to find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court's role at the summary judgment stage is not to weigh the evidence, but rather to “conclude whether [the evidence] is so one-sided that the result of any trial is inevitable.” Turner v. Phillips, 2022 WL 458238, at *4 (11th Cir. Feb. 15, 2022); see also Anderson, 477 U.S. at 252 (explaining that when ruling on a motion for summary judgment, “the judge must ask himself ․ whether a fair-minded jury could return a verdict for the [non-moving party] on the evidence presented”).

IV. Analysis

The fourteen claims asserted in the second amended complaint can be grouped into three broad categories—discrimination (Counts I, II, V, VI, and VIII),⁹ failure to provide reasonable accommodations (Counts I, II, and VIII), and retaliation (Counts III, IV, VII, and IX through XIV). The Court will address each category in turn.

A. Discrimination

Plaintiff asserts his claims for age and disability discrimination under four statutory headings: the FCRA,¹⁰ ADA, ADEA and Rehabilitation Act. “Disability and age-related discrimination actions under the FCRA are analyzed under the same frameworks as the ADA and ADEA, respectively,” Mazzeo v. Color Resolutions Int'l, LLC, 746 F.3d 1264, 1266 (11th Cir. 2014), and the same standards govern claims under the ADA and the Rehabilitation Act, Silberman v. Miami, 927 F.3d 1123, 1133 (11th Cir. 2019).

The prima facie cases for the age discrimination claims and the disability discrimination claims are similar in that they require Plaintiff to show that his protected status (i.e., age or disability) was the “but-for” cause of any adverse employment action he suffered. See McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1077 (11th Cir. 1996) (“The ADA imposes a ‘but-for’ liability standard.”); Liebman v. Metro. Life Ins. Co., 808 F.3d 1294, 1298 (11th Cir. 2015) (“To assert an action under the ADEA, an employee must establish that his age was the ‘but-for’ cause of the adverse employment action.”).

Here, among other arguments,¹¹ Defendants contends that Plaintiff has not presented evidence sufficient to create a jury question on but-for causation for any of his discrimination claims. The Court agrees.

The most common method of proving causation is through circumstantial evidence is identifying a comparator (i.e., a fellow employee who is similarly situated to the plaintiff but outside of his protective class) who was not subject to the same adverse employment actions as the plaintiff. See Sailboat Bend Sober Living, LLC v. City of Fort Lauderdale, Fla., 46 F.4th 1268, 1275-76 (11th Cir. 2022) (discussing comparators in ADA cases); Connor v. Bell Microproducts-Future Tech, Inc., 492 F. App'x 963, 965 (11th Cir. 2012) (same for ADEA case); see also Lewis v. City of Union City, Ga., 918 F.3d 1213, 1218 (11th Cir. 2019) (explaining that comparators in employment discrimination cases must be “similarly situated in all material respects” to the plaintiff.). However, a plaintiff may also survive summary judgment by “presenting a ‘convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker.’ ” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011).

Here, Plaintiff relies exclusively on the “convincing mosaic” theory to establish causation. See Doc. 61 at 23-25. Apart from his recitation of the relevant legal standards, Plaintiff's convincing mosaic argument consists of a single paragraph:

This is text-book [sic] case of a convincing mosaic of discrimination. There is ample evidence proffered by Plaintiff that Defendant discriminated against him, including, but not limited to, Fletcher's refusal to approve [Plaintiff's] ADA request for accommodation that would have allowed him to continue to complete his report at his desk using the computer equipment that worked best for his learning disability and Fletcher's decision to move [Plaintiff] to the position in Dispatch that was not a law enforcement position with supervisory authority and subjected him to considerable difficult breathing and associated health damages. As such, summary judgment must be denied.

Id. at 25.

That argument does not present a mosaic of discrimination, much less a convincing one. Plaintiff merely recounts two of the challenged employment actions and concludes, without citing any evidence of discriminatory intent,¹² that discrimination must have motivated these actions.

The fact that certain employment actions may have exacerbated Plaintiff's disabilities does not mean that they were motivated by Plaintiff's disabilities. And worse yet, Plaintiff does not even attempt to tie any of the alleged adverse employment actions to his age.

Typical convincing mosaic evidence consists of “suspicious timing,” “ambiguous statements,” “systemically better treatment of similarly situated employees,” “pretext,” or “other information from which discriminatory intent may be inferred.” See Jenkins v. Nell, 26 F.4th 1243, 1250 (11th Cir. 2022). Plaintiff has not presented any of that. Because Plaintiff has completely failed to adduce any evidence of but-for causation, summary judgment is due to be granted on all of Plaintiff's discrimination claims.

B. Failure to Provide Reasonable Accommodations

The ADA requires employers to provide “reasonable accommodations” to disabled employees to ensure that the employees can perform the essential functions of their job. See Holly v. Clairson Indus., LLC, 492 F.3d 1247, 1256 (11th Cir. 2007). “An accommodation is ‘reasonable’ and necessary under the ADA ․ only if it enables the employee to perform essential functions of the job.” Id.

“[T]he ADA does not require the employer to eliminate an essential function of the plaintiff's job” to accommodate his disability. Id. (quoting D'Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1229 (11th Cir. 2005)). Rather, “the ADA may require an employer to restructure a particular job by altering or eliminating some of its marginal functions.” Id. (emphasis in original) (quoting Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1260 (11th Cir. 2001)).

An employer's failure to provide a reasonable accommodation upon a disabled employee's request “constitutes discrimination under the ADA.” Id. at 1262. To prevail on a failure to accommodate claim, “[t]he employee has the burden of identifying an accommodation and demonstrating that it is reasonable.” Frazier-White v. Gee, 818 F.3d 1249, 1255-56 (11th Cir. 2016).

Here, it is undisputed that UWF granted two of Plaintiff's three accommodation requests (providing air purification in dispatch and uploading voice-to-text software to Plaintiff's computer) in full.¹³ However, Plaintiff argues that UWF's failure to grant his third accommodation request (allowing him to complete reports in his office rather than in his patrol car) violated the ADA. UWF argues that its partial accommodation of this request—allowing Plaintiff to complete reports outside of his patrol car but not secluded in his office—was sufficient, and that Plaintiff's request to complete reports in his office was unreasonable. The Court agrees with UWF.

As noted above, a requested accommodation is unreasonable under the ADA if it would eliminate an essential function of the disabled employee's job. See Holly, 492 F.3d at 1256. UWF contends that remaining visible on campus during his patrol was an essential function of Plaintiff's job and that allowing Plaintiff to complete reports in his office would interfere with that function. Plaintiff disputes the essentiality of remaining visible on campus.

“[E]ssential functions ‘are the fundamental job duties of a position that an individual with a disability is actually required to perform.’ ” Id. at 1257 (quoting Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000)). In determining whether a function is essential, “the employer's view is entitled to substantial weight,” but “this factor alone may not be conclusive.” Id. at 1258 (cleaned up); accord 42 U.S.C. § 12111(8) (“[C]onsideration shall be given to the employer's judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job”). Other factors that can be considered in determining essentiality include “[t]he amount of time spent on the job performing the function” and “[t]he consequences of not requiring the incumbent to perform the function.” 29 C.F.R. § 1630.2(n)(3).

Here, UWF submitted evidence showing that, in its judgment as an employer, presence and visibility on campus was an essential function of Plaintiff's job as a police sergeant. For example, the “essential functions” section of the written job description for “law enforcement sergeant” identifies on-the-scene law enforcement duties (e.g., conducting arrests, investigations, crowd control, etc.), combined with report preparation, as accounting for 35% of a sergeant's time on the job—which confirms that a significant portion of Plaintiff's job must be spent on campus in the field.

The Court did not overlook that a patrol sergeant must balance his on-the-scene law enforcement with report preparation, but the reason UWF issued laptops to its patrol officers was to allow officers to remain in the field (and increase their visibility on campus) while performing their report-writing duties. Indeed, in a memorandum issued to all patrol officers on February 14, 2019, Captain Faircloth explained that:

[a] significant amount of resources have been dedicated to the acquisition and implementation of laptops for Patrol. Laptops allow officers/supervisors to stay in-service in the patrol zones without having to return to the station just to complete, review and approve reports. This is important in our efforts toward community oriented policing.

Doc. 51-69 at 33. This was the same reason that UWF gave to Plaintiff for denying his request to complete reports in his office. See Doc. 51-39 at 1 (“[T]he ․ directive to utilize mobile laptops and remain in the field ․ must be adhered to ․ The goal of utilizing the mobile laptops is to offer consistent visible officer presence in the field.”).

Plaintiff has not identified any countervailing evidence that calls into question UWF's judgment that being in the field while completing reports was an essential part of Plaintiff's job. Thus, there is no issue of material fact to submit to a jury on this issue. See Kendall v. Sec'y, Dep't of Veterans Affs., 682 F. App'x 761, 766 (11th Cir. 2017) (affirming grant of summary judgment against failure to accommodate claim where “[Plaintiff] did not present evidence contradicting the employer's judgment or evidence about any of the other factors” because “[t]hough the employer's judgment is not the only factor to be considered, in this case, it was the only factor about which any evidence was presented.”).

The Court did not overlook Plaintiff's argument that “there is no evidence that [completing reports in the office rather than on the laptop] would have decreased Plaintiff's total time on patrol being visible,” Doc. 61 at 27-28, but the Court rejects that argument as a matter of common sense. A law enforcement officer using a laptop in the field is obviously more visible than he would be sitting in an office, and any time that Plaintiff spent in his office completing reports would be time that he would not be in the field.

Moreover, Plaintiff does not explain why UWF's proffered comprise—i.e., allowing him to complete reports outside of his patrol car but not in the isolation of his office—was not a reasonable accommodation. The reason for Plaintiff's accommodation request was to alleviate back pain caused by the awkward twisting required to complete reports on the laptop in the patrol car, but allowing Plaintiff to complete the reports on the laptop outside of his patrol car would have presumably ameliorated this problem just as well as Plaintiff's preferred accommodation. See Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F.3d 1278, 1286 (11th Cir. 1997) (“[U]nder the ADA a qualified individual with a disability is ‘not entitled to the accommodation of [his] choice, but only a reasonable accommodation.’ ”) (quoting Lewis v. Zilog, Inc., 908 F. Supp. 931, 948 (N.D. Ga. 1995)).

In sum, because the undisputed evidence cited in the parties' briefing shows that maintaining a visible presence on campus was an essential function of Plaintiff's job, Plaintiff has not carried his burden to show that his requested accommodation was reasonable. Likewise, based on the evidence presented, Plaintiff has not shown that UWF's proposed accommodation was unreasonable. Accordingly, UWF is entitled to summary judgment on Plaintiff's failure to accommodate claim.

C. Retaliation

Plaintiff alleges that Defendants subjected him to retaliatory adverse employment actions in response to (1) his reports of disability discrimination, (2) his reports of age discrimination, (3) his ADA accommodation requests, (4) his filing worker's compensation claims, (5) his filing FMLA leave requests, and (6) his exercise of his First Amendment Rights. The Court will discuss each category of retaliation in turn, although the Court will discuss the first four categories together because they are subject to the same basic legal standard.

1. Retaliation for Reports of Discrimination, Reasonable Accommodation Requests, and Worker's Compensation Claims

Although Plaintiff's claims of retaliation for reporting discrimination, requesting ADA accommodations, and requesting worker's compensation arise under different laws (i.e., the ADA, the ADEA, the FCRA, and the Florida Worker's Compensation Law), they all require proof of the same basic elements: (1) Plaintiff engaged in a protected activity (whether that is reporting discrimination, requesting ADA accommodations, or filing a claim for worker's compensation), (2) Plaintiff suffered an adverse employment action, and (3) there is a causal connection between the two. See Brillinger v. City of Lake Worth, 317 F. App'x 871, 877 n. 5 (11th Cir. 2008) (FCRA and ADEA retaliation); Davis v. Orange Cnty., 2023 WL 4743586, at *6 (M.D. Fla. Jul. 25, 2023) (ADA retaliation); Juback v. Michaels Stores, Inc., 143 F. Supp. 3d 1195, 1203 (M.D. Fla. 2015) (worker's compensation retaliation).

Logically, identifying a distinct protected activity as the trigger for a particular adverse employment action is essential to determining whether there is a causal connection between the two. Plaintiff makes almost no attempt to do this. Instead, he merely points out that, over the course of nearly two decades, he filed six charges of discrimination with the EEOC, he requested three ADA accommodations, he filed for worker's compensation twelve times, and he was subjected to fifteen ¹⁴ supposed adverse employment actions. Then, he leaves it to the Court to connect the causation dots between those thirty-six discrete events. This presents several problems.

First, when a plaintiff does not tie specific protected activity to specific adverse actions, there are several steps of the analysis that the Court simply cannot perform. For example, a plaintiff cannot establish a retaliation claim unless he can prove that the decisionmaker responsible for the adverse employment action was aware of the protected activity at the time the adverse action was imposed. See Patterson v. Georgia Pac., LLC, 38 F.4th 1336, 1351 (11th Cir. 2022). If no particular protected activity or adverse action is specifically identified, then no relevant decisionmaker is specifically identified, and the Court cannot perform this analysis.

Second, where there is no direct evidence of retaliation (and here there is none), the temporal proximity between the protected activity and the adverse action is often offered as circumstantial evidence of a retaliatory motive. See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). But where there is no proposed link between certain protected activities and certain adverse actions, the Court cannot determine if the two happened near-in-time.

Third, Plaintiff has the ultimate burden to prove that his protected activities were the “but-for” cause of his adverse employment actions, Tolar v. Bradley Arant Boult Commings, LLP, 997 F.3d 1280, 1294 (11th Cir. 2021), but if the plaintiff does not identify which protected activity triggered which adverse action, there can be no but-for causation analysis. For example, was Plaintiff's alleged retaliatory reassignment to dispatch in 2017 caused by an ADA accommodation request? A worker's compensation request? An EEOC charge? Two out of three? All three? Plaintiff does not say.¹⁵

A plaintiff cannot carry his burden to prove a retaliation claim if his argument is too vague to even analyze. See A.L. v. Jackson Cnty. Sch. Bd., 635 F. App'x 774, 787 (11th Cir. 2015) (“[T]he onus is upon the parties to formulate arguments ․”) (quoting Resol. Tr. Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.)); Selman v. CitiMortgage, Inc., 2013 WL 838193, at *15 n. 24 (S.D. Ala. Mar. 5, 2013) (“At best, plaintiffs have offered a vague, shadowy allegation ․ [A district court] cannot and will not fill in the blanks for an argument that plaintiffs have not developed.”).

Here, the Court would have to make Plaintiff's argument for him and link particular adverse actions to particular protected activities before it could even consider Plaintiff's claims. The Court will not do so. See Reaves v. Sec'y, Fla. Dep't of Corrs., 872 F.3d 1137, 1149 (11th Cir. 2017) (“It is not [the Court's] job, especially in a counseled civil case, to create arguments for someone who has not made them or to assemble them form assorted hints and references scattered through the brief.” (internal quotation marks omitted) (quoting Yeomalakis v. FDIC, 562 F.3d 56, 61 (1st Cir. 2009))).

That said, the Court did not overlook Plaintiff's truistic argument that if he had not made ADA accommodation requests or worker's compensation requests, there would have been nothing to deny, suggesting that perhaps the denial of benefits was retaliation for requesting those benefits. That, however, is not how retaliation claims work.

As discussed above, a failure to provide reasonable accommodations under the ADA is a direct discrimination claim, not a retaliation claim. And the relevant worker's compensation statue makes it unlawful to “discharge, threaten to discharge, intimidate or coerce” an employee who makes a worker's compensation claim, § 440.205, Fla. Stat.—i.e., to take some adverse employment action outside of the worker's compensation process. In either case, denying a valid request may be a violation of law, but it is not “retaliation” for making the request.

The Court also did not overlook Plaintiff's vague suggestion that his “constructive discharge” in March 2020 was retaliation for all of his protected activities over the years. However, even if Plaintiff was constructively discharged,¹⁶ none of his ADA accommodation requests, EEOC charges, or worker's compensations requests were close enough in time to suggest a retaliatory motive, at least not without some other kind of evidence (of which there is none). The closest ADA accommodation request to Plaintiff's alleged constructive discharge was in February 2019 (over a year before), the closest EEOC charge was in September 2018 (a year and a half before), and the closest worker's compensation request was in May 2019 (10 months before)—and, all of those time gaps are significantly longer than the temporal proximity that can support an inference of causation. See Thomas, 506 F.3d at 1364 (explaining that “mere temporal proximity, without more, must be very close” and holding that “[a] three to four month disparity between the statutorily protected expression and the adverse employment action is not enough [to support an inference of causation]”)

Accordingly, for the reasons stated above, UWF is entitled to summary judgment on Plaintiff's ADA, ADEA, FCRA, and worker's compensation retaliation claims.

2. FMLA Retaliation

Plaintiff's response to Defendants' motion for summary judgment suggests that some of the adverse actions taken against him were retaliation for his various FMLA leave requests. See Doc. 61 at 45 (“Plaintiff asks for FMLA leave, Defendants humiliate him by reassigning him to non-sworn law enforcement positions ․”). However, FMLA retaliation is a separate cause of action arising under the FMLA statute, Strickland v. Water Works & Sewer Bd. of City of Birmingham, 239 F.3d 1199, 1206 (11th Cir. 2001), and Plaintiff did not plead a claim for FMLA retaliation in the second amended complaint. Accordingly, Plaintiff cannot pursue an unpled FMLA retaliation claim at this stage of the case. See Austin v. City of Montgomery, 196 F. App'x 747, 753 (11th Cir. 2006) (“A party cannot amend [his] complaint to add a new claim through argument in a brief opposing summary judgment” (citing Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314-15 (11th Cir. 2004))).

3. First Amendment Retaliation

Plaintiff's First Amendment retaliation claim is his most developed retaliation claim in that he argues that Defendants violated the First Amendment by opening an internal investigation against him (which led to his alleged constructive discharge) in retaliation for his circulation of the October 2019 Memorandum.¹⁷ Defendants respond that Plaintiff's speech in the October 2019 Memorandum was not protected by the First Amendment. The Court agrees with Defendants.¹⁸

“[T]he First Amendment safeguards a public employee's right, as a citizen, to participate in discussions involving public affairs; it does not empower public employees to ‘constitutionalize’ any grievances they have with their employers.” McAlpin v. Town of Sneads, 61 F.4th 916, 934 (11th Cir. 2023). Courts consider two questions when determining whether a public employee has a First Amendment claim:

First [the court] determin[es] whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the employee has no First Amendment cause of action based on his or her employer's reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question [then] becomes whether the relevant governmental entity had an adequate justification for treating the employee differently from any other member of the general public.

Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (internal citations omitted). The second question requires an evaluation of whether “the employee's First Amendment interest in engaging in the speech outweighs the employer's interest in prohibiting the speech to promote the efficiency of the public services it performs through its employees.” McAlpin, 61 F.4th at 934 (quoting Anderson v. Burke Cnty., 239 F.3d 1216, 1219 (11th Cir. 2001)).

Here, Defendants argue that Plaintiff's claims can be resolved at the first step of the analysis because the summary judgment record establishes that Plaintiff wrote the October 2019 Memorandum as a disgruntled employee, not a citizen speaking on a matter of public concern. The Court agrees.

To have a First Amendment potentially viable claim, Plaintiff must prove that he spoke (1) as a citizen, and (2) on a matter of public concern in the October 2019 Memorandum. See Alves v. Bd. of Regents of the Univ. Sys. of Ga., 804 F.3d 1149, 1160 (11th Cir. 2015). Both elements are questions of law for the Court. Id. at 1159.

On the first element (speech as a citizen), the Court looks to the role occupied by the speaker, being aware that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes.” Id. at 1160 (quoting Garcetti, 547 U.S. at 421). The “central inquiry is whether the speech at issue owes its existence to the employee's professional responsibilities,” and the Court considers “practical factors” such as “the employee's job description, whether the speech occurred at the workplace, and whether the speech concerned the subject matter of the employee's job.” Id. at 1161 (cleaned up); see also Fernandez v. Sch. Bd. of Miami-Dade Cnty., Fla., 898 F.3d 1324, 1332 (11th Cir. 2018) (identifying factors of “(1) speaking with the objective of advancing official duties; (2) harnessing workplace resources; (3) projecting official authority; (4) heeding official directives; and (5) observing formal workplace hierarchies”). Moreover, although “speech that an employee made in accordance with or in furtherance of the ordinary responsibilities of [his] employment” is not speech as a citizen, that does not necessarily mean that “speech that [merely] concerns the ordinary responsibilities of [his] employment” is so limited. Alves, 804 F.3d at 1162 (emphasis added).

On the second element (matter of public concern), the Court looks to “the content, form, and context of a given statement” to determine if the speech relates to a matter of public concern or one of only personal interest. Id. (quoting Connick v. Myers, 461 U.S. 138, 147-48 (1983)). “[T]he relevant inquiry is not whether the public would be interested in the topic of the speech at issue, it is whether the purpose of the employee's speech was to raise issues of public concern.” Id. at 1167 (cleaned up; emphasis in original). “To fall within the realm of ‘public concern,’ an employee's speech must relate to ‘any matter of political, social, or other concern to the community.’ ” Id. at 1162 (quoting Connick, 461 U.S. at 146). However, because “an employee's speech will rarely be entirely private or entirely public,” id. (quoting Akins v. Fulton Cnty., 420 F.3d 1293, 1304 (11th Cir. 2005)), the Court reviews the whole record to determine “whether the main thrust of the speech in question is essentially public in nature of private.” Id. (quoting Vila v. Padrón, 484 F.3d 1334, 1340 (11th Cir. 2007)) (emphasis added).

Here, the evidence establishes that Plaintiff wrote the October 2019 Memorandum in his capacity as a disgruntled UWF employee, not a concerned citizen. Importantly, the October 2019 Memorandum arose out of a mandatory firearm training for UWF police officers, which was one of Plaintiff's “ordinary responsibilities.” Plaintiff attempts to draw a distinction between participating in the training (within his responsibilities) and vocalizing concerns over how that training was conducted (outside of his responsibilities), but “in reporting conduct that interfered with [his] ordinary job duties, [Plaintiff] spoke pursuant to those duties.” Id. at 1165. Moreover, the October 2019 Memorandum is written from the perspective of a seasoned member of the UWF police force upset at a perceived failure of leadership and lack of procedural compliance during a firearms training he personally attended, and the stated objective of the letter “is to inform and implement immediate change [at the UWF police force], both in operational policies and in personnel.” Those are the unique perspectives and goals of an employee, not a citizen.¹⁹

Even if Plaintiff was speaking as a citizen, he was not speaking on a matter of public concern. See Alves, 804 F.3d at 1166 n. 5 (explaining that where a court finds that a plaintiff was not speaking as a private citizen, it need not address the “public concern” inquiry, but best practice is to analyze both prongs). This conclusion follows for three reasons.

First, although the October 2019 Memorandum opens by briefly mentioning public safety, the discussion of that subject does not extend beyond the first paragraph. See King v. Board of Cnty. Comm's, 916 F.3d 1339, 1347 (11th Cir. 2019) (explaining that merely “mention[ing], or allud[ing] to,” topics of public concern is not enough to “convert ․ employee speech into a First Amendment-protected complaint.”). Instead, when the October 2019 Memorandum is read in full, it is apparent that its “main thrust” is to air Plaintiff's personal grievances with individual members of the UWF Police Department and their approach to administration. See Boyce v. Andrew, 510 F.3d 1333, 1344 (11th Cir. 2007) (“A ‘public employee may not transform a personal grievance into a matter of public concern by invoking a supposed popular interest in the way public institutions are run.’ ”) (quoting Ferrara v. Mills, 781 F.2d 1508, (11th Cir. 1986)). Indeed, most of the issues raised in the October 2019 Memorandum relate to perceived personal slights, and all of the issues pertain to the internal workplace dynamic at the UWF Police Department—not matters of general public concern.²⁰ Moreover, even if the issues raised in the Memorandum could have some tangential effect on the public, Plaintiff's purpose of raising those issues—as evidenced by its tone and explicit demands for changes in the police department's personnel—was “to further [Plaintiff's] own employment interest,” not to “raise issues of public concern.” See Boyce, 510 F.3d at 1344, 1345 (cleaned up).

Second, the two points raised in the October 2019 Memorandum that could be considered safety concerns (the use of a non-certified instructor and the premature discharge of a firearm during the training) related to workplace safety, not public safety. See Royster v. Robins, No. 20-14877, 2021 WL 5105810, at *4 (11th Cir. Nov. 3, 2021) (concluding that plaintiff's complaint of a “strong chemical smell” in her work area, which plaintiff characterized as concerning “workplace safety,” was not a matter of public concern). Moreover, as explained above, these safety concerns were not even the “main thrust” of the October 2019 Memorandum —they took a noticeable backseat to Plaintiff's complaints of personal mistreatment and perceived mismanagement of the UWF Police Department.

Third, Plaintiff only circulated the October 2019 Memorandum internally to UWF personnel,²¹ rather than making it public. See Alves, 804 F.3d at 1162 (“[W]hether the speech at issue was communicated to the public or privately to an individual is relevant [to the matter of public concern analysis] ․”). “[A] court cannot determine that an utterance is not a matter of public concern solely because the employee does not air the concerns to the public,” id. (cleaned up; emphasis in original), but this factor, when combined with the other two mentioned above, supports the conclusion that Plaintiff was not speaking on a matter of public concern in the October 2019 Memorandum.

In sum, because Plaintiff was speaking as an employee on employment matters in the October 2019 Memorandum (and not as a citizen on matters of public concern), his speech was not protected by the First Amendment and could not serve as the basis for a retaliation claim. Thus, even if the October 2019 Memorandum played a substantial part in Plaintiff's alleged constructive discharge (and the Court is skeptical that a jury could find that it did), Defendants are entitled to summary judgment on Plaintiff's First Amendment retaliation claims.

V. Conclusion

In sum, for the reasons stated above, it is ORDERED that:

1. Defendants' motions for summary judgment (Docs. 47, 52) are GRANTED.

2. The Clerk shall enter judgment in favor of Defendants and close the case file.

DONE and ORDERED this 1st day of September, 2023.

FOOTNOTES

1.   During the relevant time frame, there were four patrol shifts within the UWF Police Department, each consisting of a sergeant, a corporal, and two officers.

2.   This position was eventually reclassified to become the captain position.

3.   The June 2020 charge falsely stated (under penalty of perjury) that Plaintiff is “currently employed” by UWF, see Doc. 51-69 at 44, even though he had resigned two months earlier.

4.   Plaintiff took extended periods of “continuous” FMLA leave in 2008 (27 days), 2014 (48 days), 2019 (15 days), and 2021 (82 days), and he also took “intermittent” FMLA leave between November 2017 and November 2018.

5.   The Court derived this number from the summary chart (Doc. 50-1) prepared by Defendants that listed every on-the-job injury Plaintiff reported. Not every one of these reported injuries—which include things as trivial as bruised wrists—resulted in a formal worker's compensation claim, so the only chart entries that the Court counts in this number are those which show that worker's compensation benefits were actually “granted” or “denied” with respect to the particular injury.

6.   The Court does not endeavor to list every particular alleged adverse action that Plaintiff contends Fletcher took against him—partly because many of them are trivial in nature and Plaintiff did not bother to clearly articulate them in his summary judgment briefing, but mostly because listing each individual action is not necessary to the Court's analysis.

7.   There is conflicting evidence as to whether there actually was a premature discharge at the range, but that factual dispute is immaterial to the disposition of the motions for summary judgment.

8.   Plaintiff was out on FMLA leave from January 8 through March 31, 2020.

9.   When the Court refers to the “discrimination” claims, it means “traditional” adverse employment action discrimination—i.e., the employer took some adverse action (failure to promote, termination, demotion, etc.) against an employee because of his protected status (age, disability, etc.). The Court is aware that the failure to provide reasonable accommodations is technically a form of disability discrimination, see Holly v. Clairson Indus., LLC, 492 F.3d 1247, 1256 (11th Cir. 2007), but the Court analyzes the failure to accommodate claims separately from the “traditional” discrimination claims because different legal standard apply and Plaintiff appears (as best the Court can tell) to be alleging both types of disability discrimination.

10.   Defendants make a compelling argument that Plaintiff's FCRA claims are barred because the Florida Commission on Human Relations (FCHR) issued “no cause” determinations on three of the four charges of discrimination filed by Plaintiff, see § 760.11(7), Fla. Stat., but as Plaintiff points out, FCHR did not issue a timely “cause” or “no cause” determination on one of the charges (filed in June 2020) so the FCRA claims asserted in that charge are not barred. See Woodham v. Blue Cross & Blue Shield of Fla., Inc., 829 So. 2d 891, 897 (Fla. 2002). That said, any discrete alleged adverse employment actions that occurred more than 365 days before the date the June 2020 charge was filed are not actionable under the FCRA. See § 760.11(1), Fla. Stat. Moreover, it is not entirely clear what adverse employment actions Plaintiff was complaining about in the June 2020 charge because it only generally alleged that “Plaintiff has been and continues to be subjected to disparate treatment, different terms and conditions of employment, and held to a different standard” because of his age, disability, and complaints of discrimination. See Doc. 51-69 at 44. Nevertheless, because all of Plaintiff's FCRA (and other) claims are due to be denied on the merits, the Court need not decide which, if any, of his FCRA claims are barred by the “no cause” determinations or because the occurred more than 365 days before a charge of discrimination was filed. Likewise, because all of Plaintiff's federal claims are due to be denied on the merits, the Court need not consider whether some or all of those claims are time-barred to the extent they were raised in EEOC complaints for which “right to sue” letters were issued more than ninety days before this suit was filed in March 2022.

11.   Defendants also argue that Plaintiff has not met other elements of his prima facie case and that he has not rebutted the legitimate non-discriminatory reasons proffered by UWF for the employment actions taken against Plaintiff over his career, but the Court need not address those arguments because summary judgment is plainly warranted based on Plaintiff's failure to establish “but-for” causation.

12.   Because Plaintiff failed to specifically cite any evidence in support of his convincing mosaic theory, the Court will not go digging through the 2,300-page summary judgment record to find potentially helpful evidence for him. See Vinson v. Macon-Bibb Cnty., 2020 WL 2331242, *12 (M.D. Ga. May 11, 2020) (“[The plaintiffs] dedicate nearly three pages of their brief to explain how a ‘convincing mosaic’ analysis works, but they never present the evidentiary tiles to construct the mosaic ․ It is not the court's burden to comb through extensive records ․ to develop arguments in a parties' favor ․”); Cigainero v. Carnival Corp., 426 F. Supp. 3d 1299, 1301 (S.D. Fla. 2019) (“The Court has no obligation to go digging through the record to find the support that Plaintiff has omitted ․”); N.D. Fla. Loc. R. 56.1(F) (“The Court may, but need not, consider [summary judgment] record evidence that has not been properly cited”).

13.   The Court did not overlook Plaintiff's cursory argument that, even though these two requests were granted eventually, UWF's delay in providing the accommodations still amounts to a violation of the ADA. See Doc. 61 at 26. However, Plaintiff does not develop this argument by identifying the length of the alleged delay or applying law to the facts to illustrate why any delay violated the ADA. Id. Thus, the Court will not consider this argument. See U.S. Steel Crop. v. Astrue, 495 F.3d 1272, 1287 n. 13 (11th Cir. 2007) (refusing to consider a “perfunctory and underdeveloped argument.”).

14.   Plaintiff's argument is so scattershot that the Court cannot even be sure that this is the correct number of alleged adverse actions—at one place in his brief, he lists fifteen adverse actions, some of which are duplicative, see Doc. 61 at 14-16; in another, he lists four, id. at 18; in another, he lists two, id. at 25; and by the Court's count, there are roughly eleven listed in the complaint. The Court adopts the number fifteen here because it is ultimately inconsequential, and the Court will not put more effort into identifying the correct number than Plaintiff has.

15.   The transfer occurred around the same time as Plaintiff's FMLA leave request, but as discussed below, Plaintiff did not plead a FMLA retaliation claim.

16.   That is a big “if” because proving constructive discharge is an “onerous task” that requires a plaintiff to show that his employer intentionally made “the work environment and conditions of employment ․ so unbearable that a reasonable person in [the plaintiff]'s position would be compelled to resign.” Bryant v. Jones, 575 F.3d 1281, 1298 (11th Cir. 2009); see also Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1231 (11th Cir. 2001) (explaining that the standard for showing a constructive discharge “is higher than the standard for proving a hostile work environment”). Here, although the Court need not definitively decide the issue, the Court is skeptical that Plaintiff has shown that UWF made his work environment so intolerable that he effectively had no choice but to resign when he did. See Jones v. Allstate Ins. Co., 707 F. App'x 641, 646 (11th Cir. 2017) (“Plaintiff's decision to voluntarily resign in the face of possible termination is not a constructive discharge. A resignation is voluntary as long as the plaintiff had a choice, even if the alternatives are unpleasant.”) (citing Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir. 1995)); Fla. Dep't of Child. & Families v. Askew, 2023 WL 4223238, at *3-4 (Fla. 1st DCA June 28, 2023) (same).

17.   The Court did not overlook Plaintiff's passing suggestion that perhaps other “speech” he made at different times (such as requesting FMLA leave, reporting mismanagement by Fletcher, etc.) was also protected by the First Amendment, and perhaps other adverse actions were taken in retaliation for those other instances of protected speech. See, e.g., Doc. 61 at 4-15 (listing four different categories of “free speech” in the “Statement of Disputed Facts” section). As with much of Plaintiff's analysis, however, the Court finds that argument woefully underdeveloped—Plaintiff does not attempt to apply the First Amendment analysis to anything other than the October 2019 Memorandum, and the Court will not either. Moreover, the First Amendment retaliation counts in the second amended complaint only incorporate the factual allegations pertaining to the October 2019 Memorandum and subsequent internal investigation. See Doc. 22 at ¶¶146, 166, 183, 200.

18.   The individual defendants also argue that they are entitled to qualified immunity even if they violated Plaintiff's First Amendment rights because they were acting within their discretionary authority and the rights they allegedly violated were not clearly established. The Court need not consider that argument because, as discussed below, the Court finds that Plaintiff's First Amendment rights were not violated. See Myrick v. Fulton Cnty., 69 F.4th 1277, 1297 (11th Cir. 2023) (“For a plaintiff to overcome a claim of qualified immunity, both questions [whether a constitutional right was violated and whether the right was clearly established] must be answered affirmatively. If the answer to one is ‘no,’ the court need not reach the other.”).

19.   The Court did not overlook Plaintiff's argument that reporting the incident at the firearms training could not have been a part of his ordinary job responsibilities because none of the other officers present felt compelled to do so. But that argument ignores the fact that Plaintiff, as a sergeant, had a supervisory interest in the way that trainings were administered to his subordinates, and that interest was not shared by junior officers present at the training. It also overlooks the fact that at least one of the other officers did report similar concerns to Assistant Chief Fletcher the day after the firearms training, and Fletcher and Captain Faircloth were investigating the incident before Plaintiff circulated the October 2019 Memorandum.

20.   For example, the October 2019 Memorandum notes that Plaintiff has “been accused of being a ‘distraught,’ employee”; references “Fletcher and all of her cronies”; accuses another officer of “clucking like a little chicken”; insinuates that Plaintiff and a fellow African-American officer were being treated differently than others; bemoans that “[e]verything applies towards me, but a few things applies [sic] toward others”; accuses Fletcher of nepotism and undermining Plaintiff's authority; complains that the way the firearms training was conducted “stripped [Plaintiff] of [his] rank”; posits that failures of leadership have led to officer attrition; criticizes Chief Cossich for spending time coaching flag football instead of communicating with subordinates; accuses his superiors of micromanagement; and complains that Plaintiff was not allowed to complete the firearms training with a matchstick in his mouth.

21.   The October 2019 Memorandum was addressed to the Florida Department of Law Enforcement (FDLE), but it is undisputed that Plaintiff never actually sent it to the FDLE.

T. KENT WETHERELL, II UNITED STATES DISTRICT JUDGE