Gerard Oblek v. City of Wildwood, FL ( 2021 )

USCA11 Case: 20-13075 Date Filed: 04/05/2021 Page: 1 of 19
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-13075
Non-Argument Calendar
________________________
D.C. Docket No. 5:19-cv-00138-JSM-PRL
GERARD OLBEK,
ASHLEY ROGERS,
Plaintiffs-Appellants,
versus
CITY OF WILDWOOD, FL,
JASON MCHUGH,
Manager, City of Wildwood,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 5, 2021)
USCA11 Case: 20-13075 Date Filed: 04/05/2021 Page: 2 of 19
Before LAGOA, BRASHER, and ED CARNES, Circuit Judges.
PER CURIAM:
According to Gerard Olbek and Ashley Rogers, there was mold and asbestos
in the City of Wildwood Police Department’s building where they worked. Olbek
wrote and circulated to the head of Human Resources a memorandum requesting
that employees be tested for mold and asbestos exposure. He also sent a copy to
every employee of the police department. Rogers proofread the memorandum
before it was circulated. Claiming that the memo caused the City to retaliate by
constructively discharging them, Olbek and Rogers sued the City and its manager,
raising 42 U.S.C. § 1983 claims of First Amendment retaliation as well as
violations of the Florida Public Whistle-blower’s Act. The district court granted
summary judgment to the defendants. Olbek and Rogers appeal the judgment
against them on their claims against the City, abandoning those against the city
manager.
I.
When the Wildwood Police Department building caught fire in October
2018, it sparked a series of events that led to this lawsuit. 1 There were three people
who were primarily involved. Olbek was the Deputy Chief of Police, the second
1
We view the evidence in the light most favorable to Olbek and Rogers because they lost
in the district court. As a result, what we accept as facts for present purposes may not be the
actual facts. See Feliciano v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013).
2
USCA11 Case: 20-13075 Date Filed: 04/05/2021 Page: 3 of 19
highest ranking officer in the police department. His job was largely
administrative, and it included “the daily operations of the agency” and attending
any “management type events” that the Chief of Police could not attend. Rogers
was the Captain of Professional Compliance, and his job duties included internal
affairs and the revision of department policy. Jason McHugh was the city
manager.
A.
The October 2018 fire caused “extensive damage” to the police department’s
building, forcing a relocation of its employees. A few days after the fire, McHugh,
Olbek, and a handful of others did a walkthrough of the building. After they exited
and were standing outside in the parking lot, McHugh commented that he wanted
to clean up the building quickly so the employees could return to it. Olbek raised a
concern about mold in the building, but McHugh did not want to discuss it. He
told Olbek: “We are not using the M word and we are not talking about this.”
After Olbek reiterated his concern, McHugh again told him, “We are not talking
about this.” According to McHugh, he did not want to discuss any mold issues at
the time because a volunteer police officer was with them and they were in public,
and having the public hear the discussion might have raised liability issues for the
City.
3
USCA11 Case: 20-13075 Date Filed: 04/05/2021 Page: 4 of 19
Olbek was unsatisfied with what he felt was McHugh’s dismissive response
to the mold problem. He waited a few weeks for McHugh to come to him to
discuss it. When McHugh did not, Olbek decided to take action. He drafted a
memorandum, which we’ll call the “Mold Memo.” Rogers did not help Olbek
draft the memo and did not put his name on it, but he did proofread it.
Olbek wrote the memo on official Wildwood Police Department letterhead
with his name and Deputy Chief of Police title at the top. He gave it the subject
line “Employee health testing.” In its entirety, the memo stated:
Over the past 15 years or so there have been numerous complaints to
the city about the mold issues and the air quality leading to congestion,
colds, migraines and general employee health issues. The city has
bleached mold off of the walls on numerous occasions, we have
replaced walls and constantly battled moisture and there was testing and
some type of mitigation some time possibly around 2009-2010 however
the employees were not provided any information as to the results but
air filtration units were purchased after the results.
We just recently moved filing cabinets in September in an office to
reveal a wall full of mold which the city later bleached. Recent
information confirms bleach does not kill mold on porous surfaces such
as drywall, which has been the city’s means of mold mitigation. It is
my understanding that recent tests have shown the building contains
asbestos as well as mildew/mold, my question/request is can you please
look into employee exposure testing options for mold and asbestos
exposure for all police department personnel as soon as possible.
Before doing anything with the memo, Olbek asked his supervisor, Chief of
Police Paul Valentino, for permission to send it directly to the Human Resources
Director, Melissa Tuck. Valentino told Olbek that he could do so because Olbek
4
USCA11 Case: 20-13075 Date Filed: 04/05/2021 Page: 5 of 19
had a direct line of communication to HR. And on November 13, 2018, Olbek
emailed the Mold Memo to HR Director Tuck. He also sent it to every other police
department employee. He testified he believed that he was authorized to do that
because: “I know I have a direct [line of] communication to my employees with
the police department. They are my subordinates.”
McHugh, who was about to leave for his wedding and honeymoon when he
learned of the Mold Memo, was furious. Within an hour of the memo being sent,
he called Chief Valentino and told him that he wanted to discipline Olbek for
insubordination. Valentino told McHugh that he should not do that because they
may have a whistleblower situation. By the end of the phone call, McHugh had a
“lot better demeanor.” But then, according to Valentino, about a week after
McHugh returned to work –– the honeymoon was over –– he told Valentino that he
wanted Olbek “gone.”
McHugh did not, however, take any disciplinary action against Olbek or
give Valentino any instructions to do so. In fact, up until at least December 4,
2018, McHugh planned to keep Olbek and Rogers in their positions until after
Chief Valentino left the police department, which was in January 2019, and to keep
them in their positions at least until a new Chief of Police was hired. That plan
was evident because, on December 4, McHugh proposed to City Commissioners an
organizational chart that showed a vacancy in the Chief of Police position, Olbek
5
USCA11 Case: 20-13075 Date Filed: 04/05/2021 Page: 6 of 19
as the Deputy Chief for Administration, and Rogers as the Temporary Deputy
Chief for Operations. Under that structure, the Chief of Police’s duties would be
split between Olbek and Rogers until a new Chief was hired.
In response to the Mold Memo and another similar memo from a different
police officer, HR Director Tuck sent three of her own memoranda. Taken
together, her memoranda announced, among other things, that: Tuck would be
investigating the mold issues and would provide a report to McHugh; the police
department evidence locker would be relocated from the old building; entry into
the old building “for any other purpose” than moving the evidence locker was
“strictly prohibited unless authorized by” Tuck; and all officers were encouraged to
get tested at the City’s medical clinic for mold and asbestos exposure, with no
appointment needed and with the City paying for it.
Sometime in the next few weeks, Olbek and Rogers decided to take further
action. Rogers suggested to Olbek that they should take samples of drywall from
the old building to have them tested for mold. They thought they should do that
because they feared the City would demolish the building or otherwise cover up
the mold problem. Olbek told Rogers to take the samples, or, in Olbek’s words, he
gave the “order” to do so.
And Rogers did as he was ordered. He had Detective Christopher Smalt, a
subordinate, remove pieces of drywall for sampling. Smalt did not know that
6
USCA11 Case: 20-13075 Date Filed: 04/05/2021 Page: 7 of 19
Olbek had told Rogers to remove the drywall, and Smalt was unaware that Olbek
knew about the plan. None of them had authorization from HR Director Tuck to
enter the old building, which she had strictly forbidden absent authorization from
her; nor did they have authorization from anyone else, either. What day Smalt
went in and took the samples is not clear.
It is clear, however, when the City found out about it. On December 5,
2018, Assistant City Attorney Joshua Bills, Public Works Director Jeremy
Hockenbury, and an inspector went to the old police department building to
coordinate the City’s plan to test it for mold. To their surprise, they found that
pieces of the walls had been cut out. Bills called City Manager McHugh, telling
him, “you’re not going to believe this . . . someone’s cut holes out of the wall and
they’ve completely trashed the building.” McHugh then went to see for himself,
and he, Bills, and the city attorney Ashley Hunt, went into the building to see what
happened.
They exited the building upset about what they had seen and asked a group
of officers nearby what had happened. The group, which included Smalt, all
denied any knowledge. Chief Valentino also denied having any knowledge of
what had happened.
McHugh decided to have an outside party conduct an investigation. He did
not want the Wildwood Police Department to do the investigation because he
7
USCA11 Case: 20-13075 Date Filed: 04/05/2021 Page: 8 of 19
thought he had lost control of the department based on the group of officers and
Chief Valentino all denying knowledge. McHugh believed an investigation was
needed because he thought somebody had taken the drywall to set the City up “for
a giant lawsuit” and to “hurt the City, [to] get a payday.” The outside party that the
City asked to conduct the investigation was the Sumter County Sheriff’s
Department. (Sumter County is the county in which the City of Wildwood is
located.)
The investigation was a criminal one, and Hunt instructed Assistant City
Attorney Bills to sign an intent to prosecute document. Hunt opted for a criminal
investigation because it was easier to convert a criminal investigation into an
internal one than the other way around. Because the City did not know who had
taken the drywall or why, Hunt wanted to keep the options open. McHugh, for his
part, did not want to criminally prosecute anyone but wanted to find out who had
done it.
The sheriff’s department investigated the drywall removal as a criminal
mischief offense, which possibly could have risen to the felony level depending on
the value of the drywall taken. The City, as the victim of the crime, told the
sheriff’s department that the estimated property value was $500; criminal mischief
involving that amount is a misdemeanor of the second degree. See Fla. Stat.
§ 806.13(b)(2). Nobody told the sheriff’s department what crime to investigate,
8
USCA11 Case: 20-13075 Date Filed: 04/05/2021 Page: 9 of 19
though — any arrest decision would be up to that department, and any prosecution
decision would be up to the State Attorney, not to the City, the city attorney, or
McHugh.
Neither Rogers nor Olbek returned the investigator’s phone calls and
voicemails. But an unidentified confidential informant told the investigators that
Rogers had personally cut the drywall. That was not entirely accurate. Smalt cut
the drywall and took pieces of it at the direction of Rogers.
Smalt, for his part, did not tell the sheriff’s department investigators
anything, despite their interviewing him. He did, however, talk to City Attorney
Hunt. He told Hunt that Rogers had directed him to take the drywall samples; he
didn’t mention to Hunt any involvement by Olbek because he didn’t know that
Olbek had any involvement. Smalt also told the City’s mayor what happened, but
the mayor did not relay the information to Hunt or McHugh.
While the investigation was ongoing, Chief Valentino and McHugh had a
series of conversations. Valentino told McHugh that he wanted the sheriff’s
department’s investigation to end. He also told McHugh that he wouldn’t “find out
who did it if [McHugh was] going to hold these criminal sanctions over
somebody.” The conversations led to McHugh making a simple offer to Valentino
on December 7, 2018: The City would drop the investigation if whoever was
responsible for removing the drywall resigned.
9
USCA11 Case: 20-13075 Date Filed: 04/05/2021 Page: 10 of 19
During that time, McHugh did not know of Olbek’s involvement in the
removal of the drywall. Initially, only Rogers knew, and the record does not show
that he told anyone. On December 7, however, Olbek told Valentino that he was
the one who had instructed Rogers to take the drywall. The record evidence is
contradictory as to whether Valentino shared that information with McHugh.
Valentino testified that he never told it to McHugh, and further that he never told
the sheriff’s department about it. McHugh, however, testified in his deposition and
swore in an affidavit that Valentino told him about Olbek’s involvement — but
only after McHugh had told Valentino that the investigation would end if whoever
was responsible resigned.
Valentino, knowing Olbek and Rogers were responsible for removing the
drywall, relayed to them that McHugh said the City would drop the investigation if
the person responsible resigned. Olbek and Rogers both decided to resign. Before
the sheriff’s department’s investigation concluded, they submitted letters of
resignation; Rogers on Friday, December 7, 2018, and Olbek on the following
Monday, December 10. They resigned to save their accrued vacation and sick
leave pay, fearing that they would lose that money if they were arrested. The City
promptly notified the sheriff’s department that it no longer wanted to pursue any
charges or investigation, and the investigation was dropped.
10
USCA11 Case: 20-13075 Date Filed: 04/05/2021 Page: 11 of 19
B.
Olbek and Rogers sued the City and McHugh claiming First Amendment
retaliation and violations of the Florida Public Whistle-blower’s Act. The City and
McHugh moved for summary judgment, which the district court granted. It noted
“[p]reliminarily” that the “alleged retaliation against [Olbek and Rogers] for
exercising their right to free speech did not involve [their] speech. Rather, [their]
resignations were because of a criminal investigation concerning an unauthorized
entry into and the defacement of the police department building.”
Even if their resignations were because of their speech, however, the court
determined that neither had suffered an adverse employment action because they
had voluntarily resigned. In addition, it determined that Olbek did not speak as a
citizen on a matter of public concern. And it also determined that not only had
Rogers not engaged in any speech, but McHugh did not know Rogers had any
involvement with the Mold Memo. On their Whistle-blower’s Act claim, the court
reiterated that neither of the two had suffered an adverse employment action, and
there was no “existing misconduct” by the City for the Mold Memo to have blown
a whistle about.
The court layered it on by summarizing that Olbek’s and Rogers’
“resignations were not because of [their] exercise of free speech, but because of a
criminal investigation concerning an unauthorized entry into and defacement of the
11
USCA11 Case: 20-13075 Date Filed: 04/05/2021 Page: 12 of 19
police department building.” And that “[e]ven if the resignations were related to
the exercise of free speech,” neither spoke as a citizen on a matter of public
concern and neither suffered an adverse employment action.
II.
Olbek and Rogers argue that the district court got it wrong. They insist that
the City did retaliate against them for speech that was protected by the First
Amendment and that it violated the Whistle-blower’s Act.2 The retaliation that
they allege is constructive discharge, which they say was caused by the
investigation into who removed the drywall. That investigation, according to
them, forced them to involuntarily resign. The speech that they claim was
protected by the First Amendment and the Whistle-blower’s Act is Olbek’s Mold
Memo. In other words, their theory is that the investigation into non-speech
conduct — the unauthorized damage to and removal of City property — was really
caused by and was a pretext for McHugh’s secret intent to fire them or force their
resignations in retaliation for the Mold Memo.
We review de novo the grant of summary judgment, applying the same legal
standards as the district court. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d
1253, 1263 (11th Cir. 2010). “We will affirm if, after construing the evidence in
the light most favorable to the non-moving party, we find that no genuine issue of
2
We will refer to the Act by the short title it assigns itself. See Fla. Stat. § 112.3187(1).
12
USCA11 Case: 20-13075 Date Filed: 04/05/2021 Page: 13 of 19
material fact exists and the moving party is entitled to judgment as a matter of
law.” Id. at 1263–64. Although we draw justifiable inferences in the non-moving
party’s favor, “unsupported speculation does not meet a party’s burden of
producing some defense to a summary judgment motion” because it “does not
create a genuine issue of fact.” Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181
(11th Cir. 2005) (cleaned up). Speculation instead “creates a false issue, the
demolition of which is a primary goal of summary judgment.” Id. (quotation
marks omitted). We can affirm on any basis supported by the record. Big Top
Koolers, Inc. v. Circus-Man Snacks, Inc., 528 F.3d 839, 844 (11th Cir. 2008).
A.
To succeed on a First Amendment retaliation claim, a public sector
employee plaintiff must show, among other things, that he spoke as a private
citizen. Alves v. Bd. of Regents of the Univ. Sys. of Ga., 804 F.3d 1149, 1160
(11th Cir. 2015). If instead of speaking as a citizen he spoke as an employee in
furtherance of his ordinary job duties, his speech was not protected by the First
Amendment and his claim fails. Id. at 1161–62. Whether the plaintiff spoke as an
employee is a “practical” inquiry and a few of the non-dispositive factors that we
consider are his “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.
13
USCA11 Case: 20-13075 Date Filed: 04/05/2021 Page: 14 of 19
Olbek spoke as an employee. He “spoke pursuant to [his] official job duties,
the purpose of [his] speech was work-related, and [he] never spoke publicly.”
King v. Bd. of Cnty. Comm’rs, 916 F.3d 1339, 1345 (11th Cir. 2019). Olbek’s job
duties included “broad administrative responsibilities,” and we’ve repeatedly held
that when “the employee speaks pursuant to those duties, then the speech is not
protected by the First Amendment.” Fernandez v. School Bd. of Miami-Dade
Cnty., Fla., 898 F.3d 1324, 1334 (11th Cir. 2018). Olbek wrote the Mold Memo as
the Deputy Chief of Police, used official Wildwood Police Department letterhead
with his title on it, received approval from his supervisor to send it, emailed the
memo from his office during work hours, sent it directly to HR, and in it he
requested only that employees be tested. See id. at 1332 (noting as relevant
considerations whether the plaintiff “[spoke] with the objective of advancing
official duties,” “harness[ed] workplace resources,” “project[ed] official authority,”
“heed[ed] official directives,” and “observ[ed] formal workplace hierarchies”). Of
the things that usually indicate employee speech, Olbek “checked virtually every
relevant box.” Id.As is clear from Olbek’s deposition testimony, his purpose in sending the
Mold Memo was to protect the safety of City employees, people he viewed as
being his employees and subordinates. See id. (using the plaintiff’s deposition
testimony and other statements when determining his ordinary job duties). For
14
USCA11 Case: 20-13075 Date Filed: 04/05/2021 Page: 15 of 19
example, in the context of explaining why he sent the Mold Memo to HR, Olbek
testified: “First and foremost my concern is my employees.” And he said that any
of the City’s liability issues “don’t ever outweigh employee health.”3 Clearly,
Olbek’s “perspective was that of an employee protecting the scope of [his] job
responsibilities” and those he viewed as working with him. King, 916 F.3d at
1349; see also Moss v. City of Pembroke Pines, 782 F.3d 613, 619 (11th Cir. 2015)
(holding that plaintiff’s testimony “that all of his speech was motivated by his
belief that the City’s actions would negatively impact the fire department’s
provision of services” served to “confirm[] that [his] speech was made in
furtherance of his self-described responsibilities”).
Even if in some attenuated sense Olbek’s Mold Memo might have had “a
sheen of civic-minded purpose,” it was not transformed into citizen speech since
the “main thrust or purpose of [the] speech” was work-related. King, 916 F.3d at
1348–49. The main thrust, if not the entire thrust, of the Mold Memo is a simple
one: its subject line is “Employee health testing” and the memo requests that
employees be tested for mold and asbestos exposure. The background information
about mold in the building that is contained in the memo is a prelude to and
3
Olbek downplays these comments as just indicating that his “perceived ethical or moral
concerns as a citizen overrode whatever the City might claim were his administrative duties.”
We have rejected that kind of argument before, and we reject it now. See Fernandez, 898 F.3d at
1334 (citing D’Angelo v. School Bd. of Polk Cnty., 497 F.3d 1203, 1210 (11th Cir. 2007)).
15
USCA11 Case: 20-13075 Date Filed: 04/05/2021 Page: 16 of 19
support for the request it contains. It is a “textbook work-related” request and the
“impetus for [it] was frustration at work, not fear for public safety or the public
purse.” Id. at 1349 (emphasis added).
Not only that, but Olbek never spoke publicly. Instead, he sent the memo to
the HR Director and to police department employees, not to the media. To be sure,
the media obtained a copy of the memo, but Olbek insists that he had nothing to do
with that and does not know how it happened. See King, 916 F.3d at 1349 (“[The
plaintiff] did nothing to communicate with the public. In fact, she did nothing to
communicate with anyone outside of those who would ordinarily be involved with
this process.”). That is another relevant factor indicating he spoke as an employee.
See id.
“When viewed together, these factors paint a clear picture of a person
speaking as an employee and not as a private citizen.” Id. at 1345. Even if writing
memoranda like the Mold Memo was not something Olbek usually did, frequency
is not required. What counts is that it was done to promote the safety of police
department employees whom he viewed as being his employees and subordinates,
and it was undoubtedly within his ordinary duties. See id. at 1333–34 (“[W]e ask
not whether the speech itself is made ordinarily and regularly. Rather, we inquire
whether the speech falls within an ordinary duty.”). Olbek’s Mold Memo “owes
its existence to [his] professional responsibilities, and it cannot reasonably be
16
USCA11 Case: 20-13075 Date Filed: 04/05/2021 Page: 17 of 19
divorced from those responsibilities.” Alves, 804 F.3d at 1165 (quotation marks
and citation omitted). Because he spoke as an employee, Olbek’s First
Amendment retaliation claim fails and we need not address any other elements of
it. See id. at 1166 n.5.
Rogers’ claim also fails. The plaintiff generally must show that the
employer was actually aware of the protected expression. See Raney v. Vinson
Guard Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997). Rogers cannot do so. He
has presented no evidence that McHugh or the City knew that he proofread the
Mold Memo or that he was in any way involved with it. Indeed, both Rogers and
Olbek testified that they had no reason to think McHugh knew of Rogers’
involvement. There is no genuine issue of fact about their unawareness of his role.
B.
The Whistle-blower’s Act prohibits a municipal government entity from
taking an “adverse personnel action” against an employee in retaliation for the
employee’s disclosure of the municipal entity’s misconduct. See Fla. Stat.
§ 112.3187(3)(c), (4)(a). To succeed on a Whistle-blower’s Act claim, one of the
elements a plaintiff must show is “a causal relation between” protected activity and
the “adverse personnel action.” See Griffin v. Deloach, 259 So. 3d 929, 931 (Fla.
5th DCA 2018).
17
USCA11 Case: 20-13075 Date Filed: 04/05/2021 Page: 18 of 19
The only potential “adverse personnel actions” that Olbek and Rogers can
point to are the investigation into who removed the drywall and McHugh saying
that the City would drop the investigation if whoever was responsible resigned.
According to their argument, those actions taken together were constructive
discharge. Even if we assume that theory is valid –– which we seriously, seriously
doubt –– neither plaintiff can create a genuine issue of material fact on causation.
Rogers’ claim fails because, as we’ve discussed, there is no genuine issue of
material fact about the City’s unawareness about his involvement with the Mold
Memo. A fact that is unknown to an actor cannot motivate his action. Simple as
that.
Olbek, on the other hand, was known to be the author of the Mold Memo.
He put his name and official title at the top of it. Still, there is no genuine issue of
material fact that his memo caused the City to force him to leave, as Olbek
contends. The record does not support a reasonable inference that City Manager
McHugh knew of Olbek’s involvement in the removal of the drywall, either at the
time of the decision to investigate or at the time that McHugh told Chief Valentino
that the City would drop the investigation if whoever was responsible resigned. It
would not be reasonable to infer that an investigation into something Olbek was
not suspected of doing was intended to retaliate against him for doing it.
18
USCA11 Case: 20-13075 Date Filed: 04/05/2021 Page: 19 of 19
Although the sheriff’s department’s investigation had identified Rogers’
involvement in the drywall removal, there is no evidence that the investigators had
reason to suspect that Olbek had been involved. Even Smalt, who physically took
the drywall samples and who told the city attorney and mayor about what
happened, did not know about Olbek’s involvement. It is true that on December 7,
2018 Olbek privately told Chief of Police Valentino about his involvement. But
Valentino testified that he never told McHugh that. Further, McHugh’s testimony
was that he did not learn Olbek was involved until after he had told Valentino that
whoever was responsible could resign. Though McHugh testified that it was
Valentino who told him, and Valentino testified that he never told McHugh, any
conflict between Valentino’s and McHugh’s testimony is immaterial because either
way it is resolved is consistent with the conclusion that McHugh did not know of
Olbek’s involvement at the time that resignation was proposed.
Olbek offers only speculation contradicting that conclusion and speculation
that the City somehow, some way knew he was involved in the removal of the
drywall. Because speculation cannot create a genuine issue of material fact, it
cannot defeat summary judgment. See Cordoba, 419 F.3d at 1181.
AFFIRMED.
19