USCA11 Case: 21-13189 Date Filed: 12/02/2022 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13189
Non-Argument Calendar
____________________
THURMAN GOODMAN, JR.,
Plaintiff-Appellant,
versus
FLORIDA POP, LLC,
d.b.a. Popeyes Louisiana Kitchen,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cv-00340-MSS-AAS
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2 Opinion of the Court 21-13189
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Before JORDAN, ROSENBAUM, and NEWSOM, Circuit Judges.
PER CURIAM:
Thurman Goodman, Jr., appeals the district court’s entry of
summary judgment for his former employer, Florida Pop, LLC,
d/b/a Popeyes Louisiana Kitchen (“Florida Pop”), in a Florida
workers’ compensation retaliation action brought under
Fla. Stat.
§ 440.205. Because we agree with Goodman that the district court
improperly granted summary judgment on grounds not raised by
the parties without affording notice and an opportunity to respond,
we vacate and remand for further proceedings.
I.
In the light most favorable to Goodman, these are the rele-
vant facts. From November 2015 to July 2016, Goodman worked
as a cook at a Popeyes restaurant owned and operated by Florida
Pop in Riverview, Florida. In March 2016, Goodman reported an-
other cook, Jason Lismore, for drinking on the job. On the night
of March 31, 2016, Goodman left the Popeyes and walked to a 7-
Eleven across the street. Lismore then entered the 7-Eleven and
asked why he had “snitch[ed] on him to corporate.”
Lismore, Travis Green, and two other persons began as-
saulting Goodman, who lost consciousness during the attack. Alt-
hough Goodman recognized Lismore, he did not realize that
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21-13189 Opinion of the Court 3
Green, a shift supervisor at Popeyes, had assaulted him until over
a year later, when he viewed the 7-Eleven surveillance footage.
The day after the attack, Goodman called the Popeyes em-
ployee hotline to report that Lismore “beat him up because he re-
ported [Lismore] several time[s] for drinking while working.”
Goodman also claimed that he had “obtained [an] attorney.” Pop-
eyes suspended Lismore the same day Goodman reported the at-
tack. Lismore was fired five days later. Goodman never informed
Popeyes that Green had attacked him, and there is no evidence that
Popeyes learned of Green’s role during Goodman’s tenure. Good-
man continued to work alongside Green at the Popeyes after the 7-
Eleven attack and had no problems with him.
At some point in April 2016, Goodman spoke with the store
manager, Bernard Robinson, about seeking workers’ compensa-
tion for the injuries he had sustained during the 7-Eleven attack.
Robinson told Goodman that Florida Pop “wasn’t going to do an-
ything, so [he] might as well retain an attorney.” Goodman re-
tained at attorney to help him obtain workers’ compensation at
some point after he left his job at Popeyes in July 2016. Robinson
was the only Popeyes employee at the Riverview location with
whom Goodman discussed filing a claim for workers’ compensa-
tion.
On April 6, 2016, Goodman called the employee hotline
again. He reported that Lismore had returned to the Popeyes to
pick up a “family box” of fried chicken from shift supervisor Liz
Smith, who was Lismore’s girlfriend at the time. Goodman told
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4 Opinion of the Court 21-13189
the hotline that he did “not feel safe returning to work.” Robinson
testified that he remembered “a couple incidents” where Lismore
returned to the Popeyes following the attack at the 7-Eleven.
Goodman called the employee hotline a third time on April
25, 2016. This time, he claimed that Lismore had returned to the
Popeyes and “pulled a gun” on shift supervisor Kayla Maldonado.
Goodman also reported that “he feared for his family and [his own]
safety,” and that he “did not feel comfortable about his return be-
cause he felt that [Lismore] may return to harm him.” The write-
up of this call was forwarded to Alan Levine, the district manager
responsible for the Popeyes where Goodman worked, who
claimed that Goodman was a “[f]ormer employee making up lies.”
Goodman ultimately decided to quit working at Popeyes in
July 2016 because of a phone call he received from Green. During
the call, Green told Goodman that Lismore, along with a man
named “T-Pain,” “was at [the] Popeyes with a gun” looking for
him.
II.
Goodman sued Florida Pop in February 2020 alleging, as rel-
evant here, a claim of workers’ compensation retaliation under
Florida law. According to the operative second amended com-
plaint, Florida Pop intimidated, coerced, and constructively dis-
charged him by permitting its employees, Lismore and Green, to
violently attack him outside of their workplace on March 31, 2016.
Florida Pop “then acted recklessly and maliciously by exposing
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21-13189 Opinion of the Court 5
Goodman to Lismore and Green after it knew, at minimum, that
Lismore had significantly harmed” him, and it exhibited “callous
behavior toward [him] after the attack.” Goodman “believed that
Lismore’s continued employment was an effort by [Florida Pop] to
intimidate him, coerce him, and otherwise frighten him” against
pursuing worker’s compensation and to constructively discharge
him.
After discovery, Florida Pop moved for summary judgment
and submitted supporting evidence. Florida Pop argued that
Goodman could not establish a workers’ compensation retaliation
claim for two reasons: (1) no adverse employment action dissuaded
him from making or supporting a claim arising from the March 31
attack; and (2) no causal connection existed between the protected
conduct and the alleged retaliatory conduct, including “the contin-
ued employment of Mr. Green,” “Defendant’s failure to stop Mr.
Lismore from coming to the store,” and “Mr. Lismore’s presence
at the store with a gun.”
Goodman responded that genuine issues of material fact re-
mained as to both elements of his claim. He contended that Florida
Pop’s “failure to stop Lismore from coming to the Popeye’s, com-
bined with shift-supervisor Green’s scaring Goodman with the idea
of Lismore coming to the store with a gun, was nothing short of
intimidation” and caused his constructive discharge. He further ar-
gued that a causal connection, for purposes of a prima facie case,
was evidenced by Florida Pop’s “callous disregard” for his safety
after the attack, including failing to stop Lismore from coming to
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6 Opinion of the Court 21-13189
the restaurant, and the temporal proximity between his final report
to the employee hotline on April 25, 2016, and his final day of em-
ployment on July 13, 2016.
Florida Pop replied in part that Goodman asserted a new
claim of constructive discharge based on Green’s phone call to him
about Lismore. Florida Pop pointed out that, in the operative com-
plaint, Goodman’s theory of constructive discharge was based on
“Lismore’s continued employment,” and that Goodman’s alleged
constructive discharge was several months after Lismore’s termi-
nation.
The district court granted summary judgment to Florida
Pop. In starting its analysis, the court noted that Goodman “ad-
vance[d] two principal theories of retaliation” in response to the
motion for summary judgment: (1) Popeyes failed to prevent Lis-
more from visiting the Riverview Popeyes after his termination;
and (2) Green intimated and retaliated against him by informing
him that Lismore was armed and looking for him at the Popeyes.
While the defendants had argued that the first theory failed on the
merits and the second theory was not properly raised, the court
seemingly took the reverse course.
The district court declined to consider the first theory be-
cause, in the court’s view, it was not raised in the second amended
complaint. The court noted that the operative complaint had al-
leged retaliation based on “continued employment.” It did not, ac-
cording to the court, “advance the theory . . . that Popeyes retali-
ated against [Goodman] by failing to ensure that Lismore did not
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21-13189 Opinion of the Court 7
return to the Popeyes after Lismore was fired.” The court noted
“as an aside, that Goodman also fails to offer any evidence that Lis-
more was an agent of Popeyes such that his continued appearances
at the store could be imputed to Popeyes.” So “the claim would
fail if it had been properly preserved.”
As to the second theory, the district court concluded that
“Goodman’s attempt to premise his retaliation claim on Green’s
phone call fails because there is no evidence that Green ever
learned of Goodman’s efforts to seek workers’ compensation.”
Without evidence that Green was aware of the protected conduct,
the court stated, “no reasonable jury could find that Green retali-
ated against Goodman because of Goodman’s attempts to seek
workers’ compensation.”
III.
We review de novo a district court’s grant of summary judg-
ment, “viewing all the evidence, and drawing all reasonable factual
inferences, in favor of the nonmoving party.” Amy v. Carnival
Corp.,
961 F.3d 1303, 1308 (11th Cir. 2020) (quotation marks omit-
ted). Summary judgment is appropriate when the record evidence
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). “But it is improper if a reasonable jury could find for the
non-moving party.” Amy, 961 F.3d at 1308.
Districts courts may grant summary judgment on grounds
not raised by a party only “[a]fter giving notice and a reasonable
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8 Opinion of the Court 21-13189
time to respond.” Fed. R. Civ. P. 56(f)(2); Amy, 961 F.3d at 1310.
Thus, a court errs by granting summary judgment on unraised
grounds where the nonmovant lacks adequate notice and an op-
portunity to address the issue. See Amy, 961 F.3d at 1310–11 (va-
cating the grant of summary judgment due to lack of notice and
opportunity to respond).
Here, the district court granted summary judgment to Flor-
ida Pop based on grounds not raised by the parties, without provid-
ing notice and an opportunity to respond, so we vacate and remand
for further proceedings. We therefore need not consider Good-
man’s other arguments, including that the court improperly shifted
the burden at summary judgment.
In granting summary judgment, the district court first ruled
that Goodman waived his theory about Florida Pop’s failure to pro-
tect him from Lismore after Lismore’s termination. But Florida
Pop’s motion for summary judgment never asserted that Good-
man’s testimony about Lismore’s post-termination conduct was
outside the scope of the second amended complaint. Rather, the
motion treated that testimony as part of the merits to be resolved,
arguing that no causal connection was established between the
protected conduct and both “Defendant’s failure to stop Mr. Lis-
more from coming to the store” and “Mr. Lismore’s presence at
the store with a gun.” In addition, we note that the operative com-
plaint’s theory of retaliation included not just Lismore’s “continued
employment,” but also that Florida Pop allegedly “expos[ed] Good-
man to Lismore and Green after it knew, at minimum, that
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21-13189 Opinion of the Court 9
Lismore had significantly harmed” him and that Popeyes exhibited
“callous behavior toward [him] after the attack.”
While Florida Pop’s reply brief at summary judgment ac-
cused Goodman of offering a “new theory of constructive dis-
charge” not raised in the complaint, that assertion was directed at
Goodman’s argument “that Mr. Green’s alleged phone call to
Plaintiff informing him that Mr. Lismore was allegedly at the store
with a gun is now the cause of his constructive discharge.” In con-
trast to the other theories of retaliation, including the failure to stop
Lismore from coming to the Riverview Popeyes, Florida Pop had
not addressed that particular theory in its motion for summary
judgment.
Even so, the district court determined, as a second ground
for granting summary judgment, that any theory of retaliation
based on Green’s phone call failed because there was no evidence
Green knew of Goodman’s efforts to seek workers’ compensation.
Again, though, Florida Pop did not raise that ground at summary
judgment, nor does it defend the court’s analysis on appeal. Florida
Pop also makes no more than a bare assertion that its “Motions and
subsequent Answers and Affirmative Defenses, which referenced
the omissions in Goodman’s complaint,” afforded proper notice of
that ground. It cites nothing in the record to show, and we do not
see any clear sign, that Goodman had adequate notice of and an
opportunity to address the ground on which the court based its
judgment. See Amy, 961 F.3d at 1310–11.
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10 Opinion of the Court 21-13189
For these reasons, we conclude that the district court erred
in granting summary judgment on grounds not raised by the par-
ties. 1 We vacate the court’s order granting summary judgment
and remand for further proceedings consistent with this opinion.
VACATED AND REMANDED.
1 We decline to affirm on the alternative ground offered by the district court
with respect to Goodman’s theory of retaliation based on Florida Pop’s failure
to protect from Lismore, because that theory does not appear to require Lis-
more to be Florida Pop’s agent. We also decline to address Florida Pop’s al-
ternative arguments for affirmance on appeal. See Waldron v. Spicher,
954
F.3d 1297, 1303 (11th Cir. 2020) (“prefer[ring] that the district court address
[an issue] in the first instance” at summary judgment).
