Susan R. Kamensky v. Rogelio Dean , 148 F. App'x 878 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 14, 2005
No. 05-11653 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00105-CV-T-24MSS
SUSAN R. KAMENSKY,
Plaintiff-Appellant,
versus
ROGELIO DEAN,
HILLSBOROUGH COUNTY, FLORIDA,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 14, 2005)
Before BLACK, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Susan R. Kamensky appeals the district court’s grant of summary judgment
on her 42 U.S.C. § 1983 claims against Hillsborough County, Florida, and Rogelio
Dean, her former employer and supervisor, respectively, whom she alleged
retaliated against her for exercising her First Amendment right to freedom of
speech. After de novo review, we conclude the district court did not err and
affirm.1
Kamensky alleged she was terminated because she expressed concerns about
the propriety of a trip to Boston to view a proposed vendor’s facilities. Kamensky
asserts the district court erred in: (1) overlooking evidence showing any review of
Dean’s decision to reclassify her position and ultimately terminate her was merely
a “rubber stamp,” thus permitting a reasonable factfinder to impose liability on
Hillsborough County and on Dean, in his individual capacity; and (2) determining
there was insufficient evidence to create a jury question as to whether her speech
played a substantial part in her termination.
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We review de novo the district court’s grant of a motion for summary judgment, viewing
all evidence and factual inferences in the light most favorable to the nonmoving party. Turnes v.
AmSouth Bank, N.A., 36 F.3d 1057, 1060 (11th Cir. 1994).
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I. DISCUSSION
A. Rubber stamp argument
1. Dean
A “decisionmaker” is someone “who has the power to make official
decisions and, thus, be held individually liable.” Quinn v. Monroe County, 330
F.3d 1320, 1326 (11th Cir. 2003) (emphasis in original). A “decisionmaker” may
often be identified by a rule or by examining the statutory authority of the official
alleged to have made the decision. Id. at 1328. In the termination context, a
“decisionmaker” has the power to terminate an employee, not merely the power to
recommend termination. Id.
Kamensky concedes Dean’s reorganization proposal had to be reviewed by
the County’s Human Resources Director, the Assistant County Administrator, the
County Civil Service Board (County Board), and Dan Kleman, the County
Administrator. She further concedes county policy and procedure deemed Kleman
the decisionmaker regarding the elimination of Kamensky’s position. Thus, the
evidence indisputably shows Dean had no power to terminate Kamensky, but
rather only had the power to recommend her termination. Dean was not the
“official decisionmaker,” and thus cannot be held individually liable. See id.
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Nonetheless, Kamensky asks us to create a “rubber stamp” exception to
Quinn’s “decisionmaker” inquiry. In doing so, she cites cases dealing with
governmental, not individual, liability. See Holloman ex. rel. Holloman v.
Harland, 370 F.3d 1252, 1290–94 (11th Cir. 2004); Matthews v. Columbia County,
294 F.3d 1294, 1296–98 (11th Cir. 2002). We have not extended this line of cases
to individual liability, and refrain from doing so here.
2. Hillsborough County
In Quinn, we noted the distinction between a “decisionmaker,” as discussed
above, and a “policymaker,” “who takes actions that may cause the [governmental
entity] to be held liable for a custom or policy.” Quinn, 330 F.3d at 1326. Such an
inquiry exists because governmental entities cannot be held liable under § 1983 on
a theory of respondeat superior, but rather may be held liable only for the
execution of a governmental policy or custom. Id. at 1325. This liability “may
arise with regards to an employment decision, such as a termination, provided that
the decisionmaker ‘possesses final authority to establish . . . policy with respect to
the action ordered.’” Id. (emphasis in original) (citation omitted). “Only those . . .
officers who have final policymaking authority may by their actions subject the
government to § 1983 liability.” Matthews, 294 F.3d at 1297.
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A governmental employee is considered a “final policymaker” for
governmental liability purposes “only if his decisions have legal effect without
further action by the governing body, and if the governing body lacks the power to
reverse the . . . employee’s decision.” Holloman, 370 F.3d at 1292 (internal
citation omitted). “To determine if someone is a final policy maker, we look not
only to ‘state and local positive law,’ but also to ‘custom and usage having the
force of law.’” Id. (citations omitted).
The evidence demonstrated Dean, by definition, was not the “final
policymaker” over Kamensky’s termination. Dean’s reorganization plan had no
legal effect without further action by Kleman, and Kleman had the power to reject
Dean’s plan. See id. Kamensky, however, asserts Kleman merely “rubber
stamped” Dean’s recommendation, and that, absent meaningful review, the County
may be held liable.
In Quinn, we cited a Fifth Circuit case for the proposition a final
policymaker may serve as the conduit of a subordinate’s improper motive if he
merely “rubber stamps” the subordinate’s recommendation. Quinn, 330 F.3d at
1327 (citation omitted). In Quinn, however, we noted the plaintiff neither pointed
to a cognizable defect in the proceedings, nor provided evidence the reviewing
board approved any improper motive. Id. at 1326. More recently, we looked “to
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whether there is an actual ‘opportunity’ for ‘meaningful’ review” in determining
whether a governmental decisionmaker is a final policymaker. Holloman, 370
F.3d at 1292 (emphasis added). In Holloman, we found no opportunity for a
meaningful review by a school board in light of the practical difficulties of
administering a multi-step appellate process. Id. at 1293 (emphasis added).
Here, as in Quinn, Kamensky does not point to any cognizable defect in the
proceedings, nor does she provide evidence Kleman, or anyone else, approved an
improper motive. And, unlike in Holloman, in this case, there was an opportunity
for meaningful review. Indeed, Kleman testified that, when he approved Dean’s
reorganization plan, he was aware of the reorganization plan and its proposed
adverse affects on Kamensky’s position. Thus, Kamensky failed to introduce
sufficient evidence to show Dean was the “final policymaker” regarding her
termination. See Quinn, 330 F.3d at 1326.
B. Insufficient evidence for jury question
For a public employee to sustain a retaliation claim for protected speech
under the First Amendment, the employee must show, by a preponderance of the
evidence: (1) her speech is on a matter of public concern; (2) her free speech
interest outweighed her employer’s interest in promoting efficient public services;
and (3) her speech played a “substantial part” in the employer’s decision to
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discharge her. Anderson v. Burke County, Ga., 239 F.3d 1216, 1219 (11th Cir.
2001). The County concedes the first two factors, but disputes the third factor. As
to that factor, this Court has stated “‘it is neither possible nor desirable to fashion a
single standard for determining when an employee has met her initial burden of
demonstrating that a retaliatory intent was a ‘substantial’ or ‘motivating factor’
behind a government employment decision.’” Stanley v. City of Dalton, Ga., 219
F.3d 1280, 1291 (11th Cir. 2000) (citation omitted). Rather, a court must examine
the record as a whole to ascertain whether the plaintiff presented sufficient
evidence for a reasonable jury to conclude her protected speech was a substantial
motivating factor in the decision to terminate her. Id. “The plaintiff’s burden in
this regard is not a heavy one.” Id.
In Stanley, this Court identified several relevant factors to consider,
including: (1) the temporal proximity between the termination and the protected
activity; (2) whether any reasons for the termination were pretextual; (3) whether
any comments made, or actions taken, by the employer indicate the discharge was
related to the protected speech; (4) whether the asserted reason for the discharge
varied; and (5) any circumstantial evidence of causation, including such facts as
who initiated any internal investigations or termination proceedings, whether there
is evidence of management hostility to the speech in question, or whether the
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employer had a motive to retaliate. Id. at 1291 n.20. “There is no one factor that is
outcome determinative, but all factors must be taken into account.” Id.
As to temporal proximity, we have inferred causation “[w]here termination
closely follows protected activity.” Mize v. Jefferson City Bd. of Educ., 93 F.3d
739, 745 (11th Cir. 1996). However, we have rejected any per se rule as to the
length of time necessary to create such an inference. See Beckwith v. City of
Daytona Beach Shores, Fla., 58 F.3d 1554, 1566–67 (11th Cir. 1995). In Stanley,
219 F.3d at 1291–92, we refused to grant such an inference where there was almost
a four-year gap between the protected speech and the employee’s termination.
There was a one-year gap between Kamensky’s protected speech and Dean’s
initial staff analysis, an eighteen-month gap between her protected speech and his
initial reorganization proposal, and over a two-year gap between her protected
speech and her ultimate termination. As in Stanley, Kamensky cannot show an
inference of causation from temporal proximity.
As to pretext, Dean offered one primary reason for Kamensky’s termination,
the reorganization of the ITS department, but also referred to a second reason, her
poor performance. Kamensky offered no evidence to demonstrate these reasons
were pretextual. Rather, uncontroverted evidence indicated Dean presented his
reorganization plan based on a staff analysis he performed after receiving an
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operational analysis from an outside firm. Moreover, Dean testified as to
Kamensky’s unsatisfactory performance, and Kamensky admitted she had
performance problems.
As to the other Stanley factors, Kamensky offered no evidence any
comments were made, by anyone, indicating her termination was related to her
protected speech, and Dean expressly denied he made any such comments. As to
specific actions, Kamensky testified Dean reduced her responsibilities and gave her
a substandard evaluation after she expressed concerns about the Boston trip.
However, Kamensky also admitted that, prior to and during this time, her work
performance suffered.
Moreover, Kamensky did not offer any evidence Dean confronted her about
her protected speech, failed to notify her of his reorganization plan, failed to follow
departmental policy, reprimanded her, or singled her out in his plan. Rather, Dean
testified he followed departmental policy, notified her of his plan, advised her to
apply for a new position, would have hired her had she applied, and recommended
reclassification of another employee’s, Deborah Scarborough’s, position in his
plan. Kamensky also failed to introduce any evidence Dean’s asserted reasons for
her termination ever varied.
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Lastly, Kamensky failed to introduce sufficient circumstantial evidence of
causation. Although it is undisputed Dean initiated the reorganization plan
ultimately leading to Kamensky’s termination, Kamensky offered no evidence
these actions had anything to do with her speech. More importantly, Kamensky
offered no evidence of management hostility towards her speech, nor did she
provide any evidence Dean had a motive to retaliate against her. For instance, she
offered no evidence Dean came under scrutiny or otherwise suffered because of her
protected speech. We conclude Kamensky has failed to show her speech was a
motivating factor in her termination.
II. CONCLUSION
We find no merit to Kamensky’s “rubber stamp” argument. Additionally,
the district court did not err in determining there was insufficient evidence to create
a jury question as to whether Kamensky’s speech played a substantial part in her
termination. Thus, we affirm the district court’s grant of summary judgment to
Hillsborough County and Dean.
AFFIRMED.
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