Shea Rebecca Brown v. Rudolph Davis, Sr. , 684 F. App'x 928 ( 2017 )

Case: 15-15693 Date Filed: 04/11/2017 Page: 1 of 23
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-15693
________________________
D.C. Docket No. 3:13-cv-00915-MMH-MCR
SHEA REBECCA BROWN,
Plaintiff - Appellant,
versus
RUDOLPH DAVIS, SR.,
Individually,
CARLTON TUNSIL,
Individually,
CITY OF LAKE CITY,
Florida,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 11, 2017)
Case: 15-15693 Date Filed: 04/11/2017 Page: 2 of 23
Before TJOFLAT, HULL, and O’MALLEY, * Circuit Judges.
HULL, Circuit Judge:
Plaintiff Shea Brown appeals the district court’s grant of summary judgment
in favor of defendants Rudolph Davis, Carlton Tunsil, and the city of Lake City,
Florida. Brown brought suit against the defendants under 42 U.S.C. §§ 1981 and
1983, alleging that she was unlawfully terminated from her employment on the
basis of her race and gender.
After review, and with the benefit of oral argument, we affirm.
I. BACKGROUND
A. The Parties
Plaintiff Brown is a Caucasian female who, from March 2008 to August
2009, worked as a law enforcement officer for the Lake City, Florida Police
Department (“LCPD”). Defendant Tunsil is an African-American male who, from
June 2009 to September 2009, served as the Interim Chief of the LCPD. Defendant
Davis is an African-American male who, from 1990 to November 2009, worked as
a law enforcement officer for the LCPD. During Tunsil’s term as Interim Chief,
Davis served as the second-in-charge for the LCPD.
*
Honorable Kathleen M. O’Malley, United States Circuit Judge for the Federal Circuit,
sitting by designation.
2
Case: 15-15693 Date Filed: 04/11/2017 Page: 3 of 23
B. LCPD Work Environment
During the course of plaintiff Brown’s employment, Brown alleged that she
heard comments among her peers about Davis not liking women. For example, in
2008, when the LCPD hired Brown, defendant Davis purportedly disapproved of
Brown’s hiring and expressed his preference that the LCPD hire his friend Greg
Williams, an African-American male, instead. Davis allegedly objected to the
hiring of another white female law enforcement officer on the same day. John
Blanchard, an LCPD sergeant who served during Brown’s employment, testified
that he heard Davis “say some things about females” that led him to believe that
Davis had “issues with women that had authority.” According to Blanchard, Davis
“felt basically [that] women were not appropriate in law enforcement” and would,
from time to time, make statements to that effect.
C. Evidence Destruction
On April 23, 2009, LCPD officer Jason Golub asked plaintiff Brown to meet
him to transport an arrestee—King David Bradley— to jail on a violation of
probation charge. At that time, Golub was ending his shift, and Brown was
beginning her shift. Golub and Brown met at the police station to transport
Bradley. At the station, Golub gave Brown separate bags containing pills and
marijuana that he had found on Bradley during the course of Bradley’s arrest.
Golub had weighed the marijuana at the police station and determined that it only
3
Case: 15-15693 Date Filed: 04/11/2017 Page: 4 of 23
constituted a misdemeanor amount. When Golub handed the marijuana to Brown,
Golub allegedly told Brown, “[d]o what you want with this.”
According to plaintiff Brown, the LCPD maintained an unwritten policy that
allowed LCPD officers to use their discretion about whether to charge someone for
possession of a misdemeanor amount of marijuana. If the officer decided not to
charge the suspect, the officer could destroy it in the presence of another officer.
Brown testified that she had seen seven other LCPD officers exercise this policy in
practice. Defendants Davis and Tunsil deny that such a policy ever existed.
After receiving the marijuana and the pills from Golub, Brown transported
Bradley to the jail without incident. Brown threw away the pills, which she
determined to be water pills, but retained possession of the marijuana.
After leaving the jail, but while still in possession of the marijuana, plaintiff
Brown had dinner with fellow LCPD officer Ivan Useche. Brown and Useche
drove their separate patrol cars to an undeveloped subdivision to eat dinner. Before
eating her dinner, and with Useche watching, Brown took out the marijuana and
destroyed it by rubbing it into the ground with her boot. Brown did not inform
Useche about the source of the marijuana or that she was destroying it pursuant to
the unwritten policy. Following this incident, Brown never filed a report or
affidavit with the LCPD regarding her handling of Bradley or her destruction of the
4
Case: 15-15693 Date Filed: 04/11/2017 Page: 5 of 23
marijuana. Brown heard nothing concerning her destruction of the marijuana for
several weeks.
D. Brown’s First Domestic Dispute
On May 5, 2009, plaintiff Brown called LCPD corporal Paul Kash about a
family dispute that was occurring with her husband. As Brown was trying to leave
her residence, her husband refused to give her the keys to her automobile. Brown
called Kash to help her get the keys because she worried that the situation was
going to escalate and that she would become the victim of domestic violence. Kash
came to Brown’s home and helped Brown obtain her keys and leave the home
without violence.
Following the incident, Kash wrote an internal report regarding the events.
Plaintiff Brown supported Kash writing the report. Following Kash’s report,
defendant Davis learned of the incident and called Brown into his office. Davis
asked Brown to write a statement against her husband to be handed over to the
Columbia County Sheriff’s Office, where her husband was employed. Brown
refused to write a statement against her husband because she did not know Davis’s
intent, which led to an argument. Davis threated to write Brown up for
insubordination. Following this meeting, Davis wrote up Brown for
insubordination, but nothing came of Davis’s complaint.
5
Case: 15-15693 Date Filed: 04/11/2017 Page: 6 of 23
E. Investigations Into Brown’s Conduct and Brown’s Arrest
On May 12, 2009, an Assistant State Attorney for the State of Florida
contacted the LCPD concerning a missing “affidavit or offense report” on Bradley.
This prompted a conversation between the Florida State Attorney’s Office and the
LCPD, which revealed that Brown had not filed an arrest affidavit on Bradley for
the marijuana charge. Eventually, Skip Robert Jarvis, State Attorney for the Third
Judicial Circuit, learned of this fact and requested that the Florida Department of
Law Enforcement (“FDLE”) conduct a criminal investigation into Brown
concerning possible improper destruction of evidence. On May 14, 2009, Gary
Laxton, then LCPD’s Chief, informed Brown that she was under investigation by
the FDLE for tampering with evidence in relation to her handling of the marijuana.
Brown later testified that nobody from the LCPD, including defendants Davis or
Tunsil, was involved in either Jarvis’s request or in the ensuing FDLE
investigation.
The FDLE eventually cleared Brown of “any wrongdoing” and informed
State Attorney Jarvis that it “didn’t have anything to proceed with.”
Notwithstanding the FDLE’s recommendation, Jarvis conducted an additional
investigation of Brown on his own. Again, this investigation was conducted
without any LCPD involvement. On July 7, 2009, State Attorney Jarvis filed an
6
Case: 15-15693 Date Filed: 04/11/2017 Page: 7 of 23
information charging Brown with tampering with evidence, a third-degree felony. 1
The State Attorney’s Office issued a “capias” for Brown’s arrest, and Brown
voluntarily turned herself into the Columbia County, Florida jail. Following
Brown’s arrest, LCPD officers posted bond for Brown’s immediate release.
On July 8, 2009, defendant Tunsil, as acting LCPD Interim Chief, placed
Brown on administrative leave without pay. Tunsil asked defendant Davis to keep
the LCPD updated on the criminal investigation of Brown. Davis would monitor
investigative reports generated by the State Attorney’s Office on Brown and then
pass the developments on to Tunsil.
At some point thereafter (not specified by the parties), defendant Tunsil met
with Wendell Johnson, City Manager for Lake City, and Carrie Correia, Human
Resources Director for Lake City, at Lake City’s City Hall to discuss Brown’s
situation. Defendant Davis was also present at this meeting. According to Tunsil,
Johnson and Correia stated at the meeting that, if Brown had been arrested, Tunsil
would be required to “get rid of her.” Johnson and Correia clarified that Tunsil
would be required to do so merely if Brown were arrested, as opposed to being
convicted on a later charge. Davis separately testified that, over the course of his
LCPD career, he had never seen an LCPD officer remain employed by the LCPD
1
A jury trial was held on the state’s third degree charge against Brown, which resulted in
a mistrial. Later, the State Attorney’s Office failed to meet a retrial deadline, and the retrial was
ultimately barred by the Speedy Trial Act.
7
Case: 15-15693 Date Filed: 04/11/2017 Page: 8 of 23
following a felony arrest. Davis testified that the LCPD terminated at least one
particular male officer (whose race is not specified) under this policy for that
officer’s arrest resulting from off-duty conduct.
F. Internal Affairs Investigations Into Brown
On July 10, 2009, defendant Tunsil ordered Blanchard to conduct the
LCPD’s own Internal Affairs (“IA”) investigation, IA09-07, into the destruction-
of-marijuana incident and Brown’s resulting arrest and criminal prosecution. After
the investigation, Blanchard recommended to defendant Tunsil that violations of
“On/Off Duty Conduct,” “Neglect of Duty,” “Felonies,” and “Recovered
Property/Evidentiary Material” be sustained against Brown. Blanchard
recommended that a violation of “Untruthfulness” not be sustained against Brown
for the destruction-of-marijuana incident because her account of being told to do
what she wanted with the marijuana was “backed up by [another officer’s]
statement.”
Defendant Davis asked Blanchard to conduct additional IA investigations
into Brown’s conduct. On one occasion, Davis ordered Blanchard to conduct an IA
investigation about Brown’s allegedly causing property damage to her work
computer. A few of the keys from the keyboard were missing, and Davis stated
that he believed Brown had damaged the computer intentionally. Brown testified
that the damage resulted from an issue with the computer stand that the LCPD
8
Case: 15-15693 Date Filed: 04/11/2017 Page: 9 of 23
provided. Brown testified that she returned the two keys—which had “popped
off”—back with the computer.
On July 22, 2009, defendant Davis directed Blanchard to complete another
IA investigation on Brown, this time regarding certain speeding tickets that Brown
had issued earlier that year. According to Blanchard, during the course of the IA
investigation, defendant Davis allegedly threatened to initiate an IA investigation
against Brown’s supervisor because the supervisor “wasn’t giving [Davis] the
statement he wanted” about Brown’s pending investigation. Blanchard testified
that Davis’s threat “shocked” him.
G. Brown’s Second Domestic Dispute and Termination
On August 14, 2009, another domestic dispute occurred between Brown and
her husband. Davis ordered LCPD officer Larry Shallar, who responded to the
incident, to complete an arrest affidavit. Davis threatened to initiate an IA
investigation against Shallar if he did not complete the affidavit. Shallar completed
the arrest affidavit, but Brown was not arrested.
On August 25, 2009, defendant Davis recommended to Tunsil that the
LCPD terminate Brown’s employment. Tunsil gave Brown notice of the
termination recommendation and offered Brown the opportunity for a hearing. A
hearing was held on August 28, 2009.
9
Case: 15-15693 Date Filed: 04/11/2017 Page: 10 of 23
On August 31, 2009, defendant Tunsil signed a letter on behalf of the LCPD
terminating Brown. In support of Brown’s termination, the LCPD offered five
reasons:
1) You had several complaints (4) filed against you in a short time
span.
2) You had several serious policy violations which were sustained.
3) Your arrest and actions brought discredit to you and this agency.
4) You had two domestic disturbances at your residence within 4
months.
5) Your behavior creates a liability for the City of Lake City.
The termination letter explained that any of the five listed reasons, “individually or
in any combination, constitutes just cause for your termination.”
On August 31, 2009, the same day that the LCPD terminated Brown’s
employment, it hired Greg Williams, the African-American male for whom
defendant Davis had previously expressed a preference. Williams had previously
worked for the LCPD from 1995 to 2007 before leaving for the Lake City Sheriff’s
Office. Before Brown’s termination and Williams’s hiring, Williams had re-
applied to the LCPD, completed the interview process, and been recommended to
City Manager Johnson for re-employment.
Following Brown’s termination, her criminal case proceeded to trial.2 In
December 2009, a mistrial was declared due to a speedy trial violation. Although
2
On November 16, 2009, the LCPD administratively terminated Davis due to his alleged
differences of opinion with a new acting LCPD Chief. Davis sued the LCPD in the United States
10
Case: 15-15693 Date Filed: 04/11/2017 Page: 11 of 23
State Attorney Jarvis’s office voiced its intention to re-try Brown, the state court
ultimately dismissed all charges against Brown.
H. Davis’s 2013 Letter to Brown
On February 10, 2013, approximately three and a half years after Brown’s
termination from the LCPD, defendant Davis wrote Brown a letter. In the letter,
Davis wrote that he would “swear to” the following facts: “I was directed by City
Manager Wendell Johnson to fire Officer Brown, after enough evidence was
gathered to justify firing her, and because of this I wrote her up for any incident,
where she was involved.” Davis wrote that “[t]he State Attorney, Robert Skip
Jarvis, [sic] filing of criminal charges against Officer Brown appeared to be
vindictive because there appeared to be no evidence of wrongdoing by Officer
Brown, but just a miscommunication between Officer Brown and Officer Jason
Golub.” Davis stated that, “[a]s the former captain at the [LCPD], I believe Officer
Brown was treated unfairly, and not equal, compared to what other officers have
done at the [LCPD].”
In an April 6, 2015 deposition, defendant Davis later testified that he wrote
the February 10, 2013 letter because he was “trying to help [Brown] get
District Court for the Middle District of Florida on a retaliation theory, pursuant to Title VII, 42
U.S.C. § 2000e. See Davis v. City of Lake City, 553 F. App’x 881, 882 (11th Cir. 2014)
(unpublished). The United States District Court for the Middle District of Florida granted
summary judgment in favor of the LCPD. Id. at 885. This Court affirmed the judgment on
appeal. Id. at 888.
11
Case: 15-15693 Date Filed: 04/11/2017 Page: 12 of 23
employment.” Davis stated that the letter “could have been worded differently and
it’s not totally correct [as] to what really happened.” Brown’s counsel asked Davis
how he would reword the letter. Davis replied that he would “take out the word
that [Johnson] directed [him] to do something because . . . [Johnson] didn’t direct
[him] to do it.” Davis also testified that any investigations that Brown had been
placed under were “justified, according to policy.” As to the statements about
Jarvis’s investigation, Davis testified: “The statement that I made about [Jarvis] is
an incorrect statement because at that time . . . I had no information about what he
was doing because FDLE was investigating.” As to the statement about Brown’s
unequal treatment, Davis testified: “I take issue with [that] because for me to say
that she was treated unfairly would mean that I treated her unfairly . . . . She was
treated just like any other officer under the same circumstances would have been
treated . . . . It was just a statement that was made at the time, like I say, and
basically trying to make it not look as bad as it actually was.” Davis concluded his
testimony concerning the February 10, 2013 letter by stating that “the whole letter
is improperly worded and not correct.”
I. Procedural History and District Court Findings
On May 14, 2014, plaintiff Brown filed an amended complaint—the
operative complaint for this appeal—against defendants Tunsil, Davis, and the city
of Lake City, Florida. The defendants moved for summary judgment.
12
Case: 15-15693 Date Filed: 04/11/2017 Page: 13 of 23
On November 24, 2015, the district court granted the defendants’ motions
for summary judgment. In reviewing Brown’s claims, the district court assumed,
without deciding, that Brown had presented a prima facie case of discrimination
based on her race and gender. The district court then reviewed the defendants’ five
proffered reasons for Brown’s termination, as listed in the August 31, 2009
termination letter, to determine whether they were pretext for discriminatory
conduct. The district court determined that Brown presented evidence “creating a
genuine issue of material fact as to the question of pretext with regard to the
Internal Affairs investigations, the sustained policy violations, . . . the domestic
violence incidents,” and her “behavior creat[ing] a liability for the City” as reasons
for her termination.
However, the district court determined that Brown failed to present evidence
that one of the listed reasons—that Brown’s “arrest and actions” brought “discredit
to [her], and th[e] agency”—constituted pretext. Because Brown thus failed to
rebut each purportedly legitimate reason for her termination, the district court
granted summary judgment in favor of the defendants. See Chapman v. AI
Transport, 229 F.3d 1012, 1024-25 (11th Cir. 2000); see also Cobb v. City of
Roswell, 533 F. App’x 888, 895-96 (11th Cir. 2013) (unpublished).
On December 17, 2015, Brown filed a motion for reconsideration of the
district court’s summary judgment order. On December 23, 2015, Brown filed a
13
Case: 15-15693 Date Filed: 04/11/2017 Page: 14 of 23
timely notice of appeal. On April 29, 2016, the district court denied Brown’s
motion for reconsideration of the summary judgment order.
II. APPLICABLE LAW
A. Standard of Review
“This court reviews de novo summary judgment rulings and draws all
inferences and reviews all evidence in the light most favorable to the non-moving
party.” Craig v. Floyd Cty., 643 F.3d 1306, 1309 (11th Cir. 2011); see also
Edwards v. Shanley, 666 F.3d 1289, 1292 (11th Cir. 2012); Am. Bankers Ins. Grp.
v. United States, 408 F.3d 1328, 1331 (11th Cir. 2005).
B. Summary Judgment Standard
Summary judgment is appropriate “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.” Davila v. Gladden, 777 F.3d 1198, 1203 (11th Cir. 2015) (quoting
Fed. R. Civ. P. 56(a)). “The moving party bears the initial burden to show . . . that
there are no genuine issues of material fact that should be decided at trial.” Clark v.
Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). “Only when that burden
has been met does the burden shift to the non-moving party to demonstrate that
there is indeed a material issue of fact that precludes summary judgment.” Id.“When a moving party has discharged its burden, the non-moving party must then
go beyond the pleadings, and by its own affidavits, or by depositions, answers to
14
Case: 15-15693 Date Filed: 04/11/2017 Page: 15 of 23
interrogatories, and admissions on file, designate specific facts showing that there
is a genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 593-
94 (11th Cir. 1995) (citation omitted) (internal quotation marks omitted).
“When reviewing a grant of summary judgment, [this Court] may affirm if
there exists any adequate ground for doing so, regardless of whether it is the one
on which the district court relied.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1117
(11th Cir. 1993).
C. Discrimination Standards
This Court recognizes “an equal protection right to be free from employment
discrimination [including] . . . various race- and gender-based employment
decisions by public officials, including those concerning discipline, promotions,
transfers, reclassifications, and termination.” Williams v. Consol. City of
Jacksonville, 341 F.3d 1261, 1268 (11th Cir. 2003). Where, as here, the plaintiff
bases an employment discrimination claim on circumstantial evidence, this Court
applies the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411
U.S. 792, 804-06, 93 S. Ct. 1817, 1825-26 (1973).
Under this framework, the plaintiff bears the initial burden to establish a
prima facie case of discrimination by alleging that “(1) she is a member of a
protected class; (2) she was subjected to an adverse employment action; (3) her
employer treated similarly situated employees outside of her protected class more
15
Case: 15-15693 Date Filed: 04/11/2017 Page: 16 of 23
favorably than she was treated; and (4) she was qualified to do the job.” Burke-
Fowler v. Orange Cty., 447 F.3d 1319, 1323 (11th Cir. 2006); see also EEOC v.
Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002). When the defendant
“fails to persuade the district court to dismiss the action for lack of a prima facie
case and responds to the plaintiff’s proof by offering evidence of a non-
discriminatory reason for its actions,” this step of the analysis “drops from the
case.” Joe’s Stone Crabs, 296 F.3d at 1273 (citation omitted).
If the plaintiff establishes a prima facie case, the burden shifts to the
employer to produce evidence showing a legitimate, non-discriminatory reason for
the adverse employment action. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 254, 101 S. Ct. 1089, 1094 (1981). If the employer produces such
evidence, the burden shifts back to the plaintiff to “demonstrate[] ‘such
weaknesses [or] implausibilities . . . in the employer’s proffered legitimate reason[]
for [the] action that a reasonable factfinder could find them unworthy of
credence.’” Silvera v. Orange Cty. Sch. Bd., 244 F.3d 1253, 1258 (11th Cir. 2001)
(quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)); see
also Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1332 (11th Cir. 1998). A
plaintiff may satisfy this burden “either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by showing
16
Case: 15-15693 Date Filed: 04/11/2017 Page: 17 of 23
that the employer’s explanation is unworthy of credence.” Burdine, 450 U.S. at
256, 101 S. Ct. at 1095.
D. Qualified Immunity in the Employment Discrimination Context
Where the defendant employer is also a state official acting under color of
state law, the plaintiff must also overcome the defendant employer’s qualified
immunity defense, where raised. See Keating v. City of Miami, 598 F.3d 753, 762
(11th Cir. 2010) (“Once an officer raises the defense of qualified immunity, the
plaintiff bears the burden to show that the officer is not entitled to it.”). To
overcome qualified immunity, the plaintiff must show that: (1) the defendant
violated a constitutional right, and; (2) this right was clearly established at the time
of the alleged violation. See Morris v. Town of Lexington, 748 F.3d 1316, 1322
(11th Cir. 2014); see also Wilson v. Layne, 526 U.S. 603, 609, 119 S. Ct. 1692,
1697 (1999). A court may begin the qualified immunity analysis with either prong,
at its discretion. Pearson v. Callahan, 555 U.S. 223, 236, 129 S. Ct. 808, 818
(2009).
In the employment discrimination context, the “clearly established”
requirement provides that a state official “can be motivated, in part, by a dislike or
hostility toward a certain protected class to which a citizen belongs and still act
lawfully” where “the record shows they would have acted as they, in fact, did act
even if they had lacked discriminatory intent.” Rioux v. City of Atlanta, 520 F.3d
17Case: 15-15693 Date Filed: 04/11/2017 Page: 18 of 23
1269, 1283 (11th Cir. 2008) (quoting Foy v. Holston, 94 F.3d 1528, 1534 (11th
Cir. 1996)). “Unless it, as a legal matter, is plain under the specific facts and
circumstances of the case that the defendant’s conduct—despite his having
adequate lawful reasons to support the act—was the result of his unlawful motive,
the defendant is entitled to immunity.” Foy, 94 F.3d at 1535. “Where the facts
assumed for summary judgment purposes in a case involving qualified immunity
show mixed motives (lawful and unlawful motivations) and pre-existing law does
not dictate that the merits of the case must be decided in plaintiff’s favor, the
defendant is entitled to immunity.” Id.III. DISCUSSION
On appeal, plaintiff Brown argues that the district court erred in finding that
Brown’s arrest was a non-pretextual reason for her LCPD termination. First,
Brown asserts that the district court failed to credit Davis’s February 10, 2013
letter, in which Davis stated that the filing of charges against her was vindictive.
Second, Brown highlights that her arrest arose from the same incident—Brown’s
destruction of the marijuana—that led the LCPD to conduct an IA investigation
into Brown’s conduct. Because the district court found this IA investigation to be a
pretext for Brown’s termination, Brown asks this Court to infer that the “closely
intertwined” arrest, resulting from the same factual incident, is sufficiently
“suspicious” to create a disputed issue of material fact.
18
Case: 15-15693 Date Filed: 04/11/2017 Page: 19 of 23
On the first point, the district court did not err in finding Davis’s letter and
statements insufficient to raise a material dispute on the issue of pretext. Even
assuming arguendo3 that Davis was the final decisionmaker with respect to
Brown’s employment, Brown’s attempt to draw parallels to this court’s decisions
in Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1310 (11th Cir. 2012), and
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079 (11th Cir. 2004), is still
unpersuasive. Those cases both involved statements and admissions from final
decisionmakers that actually contradicted the proffered reason for employment
action. In Kragor, the proffered reason for termination was that the employee had
“violated . . . the company’s conduct policies,” and yet there was evidence that the
final decisionmaker stated “she had done nothing wrong.” Kragor, 702 F.3d at
1310. In Wilson, the plaintiff was not promoted allegedly because another
employee was “more qualified,” and yet the final decisionmaker stated that the
plaintiff was “the obvious choice” and the “most qualified.” Wilson, 376 F.3d at
1079.
Here, Davis’s letter does nothing to contradict the fact of Brown’s arrest,
which was itself the reason given for termination. Whether or not Brown’s arrest
was legitimate, fair, or justified is not relevant insofar as she has failed to rebut the
3
Although Davis noted that he and Tunsil would “confer” with Johnson on the
termination of LCPD officers, Davis testified that Johnson had final authority with regard to all
terminations of LCPD employees.
19
Case: 15-15693 Date Filed: 04/11/2017 Page: 20 of 23
defendants’ evidence that no other officers have been permitted to continue their
employ after being arrested. She does not challenge that fact on appeal, and did not
below: “Indeed, Brown failed to identify any officer in the history of LCPD that
was arrested and not terminated . . . .” 4 The district court correctly recognized that
simply being arrested (particularly for a felony), without looking into the actual
merits of that arrest, was a plausible policy for termination of a police officer—i.e.,
to avoid bringing “discredit” to the police agency (and any future actions by that
officer) in the eyes of the public. See McMullen v. Carson, 568 F. Supp. 937, 944
(M.D. Fla. 1983), aff’d, 754 F.2d 936 (11th Cir. 1985) (recognizing that police
departments have an important governmental interest in maintaining public
confidence in the police force and public respect for its officers). Brown “does not
dispute” that none of the current defendants “had anything to do with the State
Attorney’s Office’s decision to criminally investigate, charge, and arrest her.”
Hence, to “quarrel[] with the wisdom of that reason” for termination, and analyze
whether or not the decision to terminate an officer after such an arrest is prudent or
justified, would be overstepping the bounds of judicial review. Joseph v. Columbus
Bank & Trust Co., 447 F. App’x 110, 112 (11th Cir. 2011) (unpublished).
4
Defendant Davis provided unrebutted testimony that, over the course of his twenty year
LCPD career, no other LCPD officer who was arrested for a felony remained employed by the
LCPD following such an arrest.
20
Case: 15-15693 Date Filed: 04/11/2017 Page: 21 of 23
On the second point, Brown cites to Woodard v. Fanboy, LLC, 298 F.3d
1261, 1267 (11th Cir. 2002), and Holland v. Gee, 677 F.3d 1047 (11th Cir. 2012),
in support of her argument. In Woodard, Brown observes, there were two proffered
non-discriminatory reasons for eviction: (1) that the inside of the plaintiff’s
apartment was dirty; and (2) that the plaintiff had allowed trash to accumulate
outside of the apartment. The plaintiff rebutted the first justification directly with
testimony that the inside of the apartment was always clean, but did not contest
that trash had accumulated outside the apartment; instead, the combination of the
defendant’s untruthfulness regarding the inside of the apartment and testimony
suggesting that other sources might be causing the trash outside allowed for the
plaintiff to survive summary judgment. Woodard, 298 F.3d at 1267. Likewise, in
Holland, there were two proffered non-discriminatory reasons for termination: (1)
that the plaintiff suffered from poor work performance; and (2) that she used her
father’s relationship with the employer to “get away” with her failure to adequately
perform her duties. The plaintiff rebutted the first justification directly with
testimony that her work performance was not deficient, and as a result the court
found the second justification “fishy and suspicious as well.” Holland, 677 F.3d at
1060.
Neither Woodard nor Holland is analogous to the case at hand. In Woodard,
both of the proffered reasons involved the cleanliness and sanitation of the
21
Case: 15-15693 Date Filed: 04/11/2017 Page: 22 of 23
plaintiff’s apartment—the fact that the plaintiff kept the inside of their apartment
clean logically cast suspicion on whether she was the source of any external mess.
Likewise, in Holland, both of the proffered reasons involved the plaintiff’s work
quality—the fact that the plaintiff did not exhibit poor work performance logically
cast suspicion on whether she had used her family connection to “get away” with
that performance. Here, Brown’s arrest was itself the reason proffered for
termination—not the conduct underlying that arrest.
Put differently, Brown has offered no evidence (or even allegation) that she
would not have been terminated if she had been arrested for any other reason than
the destruction of evidence.5 She cannot, therefore, argue that the arrest reason is
closely linked to the other proffered reasons for purposes of McDonnell Douglas;
even if all other proffered reasons were pretextual, that would not logically
undercut the fact that Brown was terminated for having been arrested. Brown’s
suspicion alone—with no logical nexus—is not enough to rebut a proffered non-
discriminatory reason. Applying Woodard and Holland to the facts of this case
would have the practical effect of undermining the requirement that plaintiffs must
rebut each non-discriminatory reason proffered by the defendant in order to
withstand summary judgment—a requirement acknowledged and recognized by
5
In fact, it is undisputed that City Manager Johnson and Human Resources Director
Correia told Tunsil—in a meeting in which Davis was also present—that the LCPD would be
required to terminate Brown’s employment if she was arrested. Thus, the defendants received
instruction that they had to terminate Brown if a facially neutral event occurred.
22
Case: 15-15693 Date Filed: 04/11/2017 Page: 23 of 23
the district court and all parties to this case. In any given case, the list of reasons
for employment action will have some similar and overlapping factual bases—but
two reasons must actually share the same logical predicate for Woodard and
Holland to be operative. 6
IV. CONCLUSION
For all of these reasons, we affirm the district court’s grant of summary
judgment in favor of the defendants.
AFFIRMED.
6
Because plaintiff Brown fails to carry her burden under McDonnell Douglas, we need
not and do not decide the merits of her prima facie discrimination case and defendants’ qualified
immunity defense. Cf. Joe’s Stone Crabs, 296 F.3d at 1273; see also Turnes v. AmSouth Bank,
N.A., 36 F.3d 1057, 1061 (11th Cir. 1994) (assuming, without deciding, the plaintiff’s
establishment of her prima facie case where not necessary to resolve the appeal). We also need
not decide alternative bases for summary judgment offered by defendants, such as defendant
Davis’s assertion that he lacked the power to effect Brown’s termination.
23