Michael P. Brannon, Psy. D. v. Howard Finklestein

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-15988
________________________
D.C. Docket No. 0:10-cv-61813-DLG
MICHAEL P. BRANNON, PSY.D., individually; MICHAEL P. BRANNON,
PSY.D., P.A., a Florida professional services corporation; and THE INSTITUTE
FOR BEHAVIORAL SCIENCES AND THE LAW, LLC, a Florida limited liability
company,
Plaintiffs-Appellants,
versus
HOWARD FINKELSTEIN, in his official capacity as Broward County Public
Defender,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(June 18, 2014)
Before MARCUS, DUBINA, and WALKER, * Circuit Judges.
*
Honorable John M. Walker, Jr., United States Court of Appeals for the Second Circuit, sitting by
designation.
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WALKER, Circuit Judge:
Plaintiff Michael P. Brannon filed suit in the district court alleging that
defendant Howard Finkelstein reduced and ultimately terminated Brannon’s
consulting work as a forensic psychologist for the Broward County Public
Defender’s office in retaliation for Brannon’s constitutionally protected testimony
about a Florida state court judge. The United States District Court for the Southern
District of Florida (Donald L. Graham, Judge) granted summary judgment to the
defendant. We VACATE in part, AFFIRM in part, and REMAND.
BACKGROUND
We are mindful that this case comes before us on an appeal from a grant of
summary judgment in favor of the defendant and that the facts must be taken in the
light most favorable to the plaintiff. See Allen v. Tyson Foods, Inc., 121 F.3d 642,
646 (11th Cir. 1997).
Michael Brannon is a forensic psychologist and the sole owner of Michael P.
Brannon, Psy.D., P.A., which owns fifty percent of the Institute for Behavioral
Sciences and the Law, LLC (collectively, the “plaintiffs”). The other fifty percent
is owned by Brannon’s business partner, Dr. Sherrie Bourg Carter. Until 2009,
plaintiffs performed forensic psychology work for the office of the Broward County
Public Defender, Howard Finkelstein.
On December 6, 2007, Brannon testified before the Florida Judicial
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Qualifications Committee that was convened to investigate charges that the Hon.
Cheryl Aleman had mistreated a criminal defendant appearing before her. Brannon
testified in Judge Aleman’s favor to the effect that she was never hostile to him
during his appearances before her as a witness. The parties do not dispute that this
testimony is protected speech under the First Amendment.
Although Finkelstein was not present during the Aleman hearing, he testified
that he was “surprised” and “extremely disappointed” upon learning of Brannon’s
testimony. Shortly after the Aleman hearing, Finkelstein ran into Michael Gottlieb,
a private attorney who worked with Brannon. Gottlieb testified that Finkelstein
“expressed dissatisfaction” with Brannon’s testifying on Judge Aleman’s behalf
because Finkelstein felt, as Gottlieb put it, that nobody from the defense community
should “support such a person who was essentially a prosecutor in a robe.” Gottlieb
testified that “people thought of Judge Aleman as an evil witch,” but he did not
ascribe this statement to Finkelstein. According to Gottlieb, his conversation with
Finkelstein was centered on “how could anybody testify on behalf of that evil
witch.”
Gottlieb “quickly” called Brannon to tell him what Finkelstein had said
because, as Gottlieb put it, Gottlieb was concerned that Finkelstein was going to
curtail Brannon’s work. Brannon testified that after speaking to Gottlieb, he felt
that he was “being or going to be discriminated against.” After Brannon’s
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testimony at the Aleman hearing, Finkelstein stopped exchanging pleasantries with
Brannon and Bourg Carter.
Following his December 2007 testimony about Judge Aleman, Brannon’s
practice received less consulting work from the Public Defender’s office. In fiscal
year 2006-2007, plaintiffs were paid $608,757.50 by the Public Defender’s office;
in fiscal year 2007-2008, they were paid $390,212.00; and in 2008-2009, the first
full fiscal year following Brannon’s testimony at the Aleman hearing, plaintiffs
were only paid $170,612.00. During this period, however, the Public Defender’s
office was sharply reducing its budget for hiring mental health experts. Over the
four fiscal years running from July 2005 to June 2009, Brannon received roughly
the same portion of the total budget spent by the Public Defender’s office to hire
mental health experts: 28.2%, 31.32%, 29.26%, and 30.35%, respectively.
Brannon also testified that starting in December 2007, following his
testimony at the Aleman hearing, he had troubling conversations with at least six
Assistant Public Defenders who in the past had routinely hired him. Although
Brannon could not remember the exact words used, he testified that the substance of
their remarks was that the Public Defender’s office was angry at him and that,
whereas previously any assistant Public Defender could hire him, now they could
not hire him without approval from Finkelstein’s top assistants. Brannon testified,
however, that these Assistant Public Defenders were not told directly by Finkelstein
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that Brannon was being disfavored because of his testimony at the Aleman hearing.
Additionally, Bourg Carter testified that Melisa McNeill, an Assistant Public
Defender, said sometime “after the Aleman testimony” but “way before” the
present lawsuit was filed in September 2010 that she had been told that she could
not hire Bourg Carter or Brannon “because of what was going on with Dr.
Brannon.”
As of March 1, 2009, the Public Defender’s office began using a wheel
rotation system to hire mental health experts instead of allowing Assistant Public
Defenders to directly retain experts. Brannon testified at deposition that he thought
that the wheel rotation system “was a horrific idea that reinforces mediocrity,” and
that “shortly after [it] was put in,” he freely shared this opinion with “[e]very single
person that would listen.” On June 23, 2009, while being deposed in a case against
Barnard Joseph, a client of the Public Defender’s office, Brannon gave testimony
that was critical of the Public Defender’s office for putting in the wheel rotation
system because it risked reducing his referral work. He also took issue with the
demotion of an Assistant Public Defender from his position as head of homicide.
On July 7, 2009, in response to Brannon’s concerns, Finkelstein told Brannon
in an email that Brannon was included in the wheel rotation system. On the same
day, however, Finkelstein sent an email to one of his top assistants stating that
Finkelstein wanted Brannon to professionally suffer “death by [] 1000 invisible
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cuts. [W]ithering on the vine, pinned and wriggling on the wall with no target or
issue or martyrdom for him to seek sanctuary.”
On July 28, 2009, after reviewing Brannon’s testimony at the Joseph
deposition, Finkelstein ordered that Brannon be removed from the wheel rotation
system because of his demonstrable hostility and animosity toward the Public
Defender’s office. Finkelstein testified that Brannon’s testimony in the Joseph
deposition was the basis for his decision. As a result, in fiscal year 2009-2010,
plaintiffs received only $12,800 of consulting work from the Public Defender’s
office.
On September 29, 2010, the plaintiffs filed this suit in the District Court for
the Southern District of Florida, alleging that Finkelstein reduced and ultimately
terminated Brannon’s consulting work for the Public Defender’s office in retaliation
for Brannon’s constitutionally protected speech at the Aleman hearing. On October
16, 2012, the district court granted summary judgment to defendants. Brannon v.
Finkelstein, No. 10-cv-61813-DLG (S.D. Fla. Oct. 16, 2012), ECF No. 137. In
substance, the district court concluded that the Public Defender’s office had not
taken any adverse action against Brannon prior to removing him from the wheel
rotation system and that there was no causal nexus between that removal in July
2009 and Brannon’s testimony at the Aleman hearing in December 2007. Id.Plaintiffs appeal.
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DISCUSSION
I. Summary Judgment
We review a district court’s ruling on summary judgment de novo and apply
the same legal standard used by the district court. Shiver v. Chertoff, 549 F.3d
1342, 1343 (11th Cir. 2008) (per curiam). “Summary judgment is appropriate
where ‘there is no genuine issue as to any material fact and . . . the moving party is
entitled to judgment as a matter of law.’” Id. (alteration in original) (quoting Fed.
R. Civ. P. 56(c)). In making this determination, “[w]e draw all factual inferences in
a light most favorable to the non-moving party.” Id.“To establish a First Amendment retaliation claim, a plaintiff must show that
(1) her speech was constitutionally protected; (2) she suffered adverse conduct that
would likely deter a person of ordinary firmness from engaging in such speech; and
(3) there was a causal relationship between the adverse conduct and the protected
speech.” Castle v. Appalachian Technical Coll., 631 F.3d 1194, 1197 (11th Cir.
2011). Because the parties do not dispute that Brannon’s testimony at the Aleman
hearing was constitutionally protected, we must determine whether, taking the
evidence in the light most favorable to Brannon, a fair-minded jury could conclude
that Brannon suffered adverse conduct and that there was a causal relationship
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between the adverse conduct and his Aleman testimony.
A. Adverse Conduct
Finkelstein does not dispute that removing Brannon from the wheel rotation
system in 2009 amounted to adverse conduct. Finkelstein argues, however, that
Brannon’s lost work immediately following his testimony at the Aleman hearing
cannot amount to adverse conduct because of the overall budget reductions that
took place. We do not believe that this issue can be resolved in Finkelstein’s favor
on summary judgment.
Brannon has established that his total work from the Public Defender’s office
dropped from the 2006-2007 fiscal year ($608,757.50) to fiscal years 2007-2008
($390,212.00) and 2008-2009 ($170,612.00). Brannon’s work from the Public
Defender’s office thus decreased approximately 72% over the course of two fiscal
years. This is plainly not a “trivial” or “de minimus inconvenience” to Brannon.
Bennett v. Hendrix, 423 F.3d 1247, 1253 (11th Cir. 2005).
Finkelstein points to the budget reductions as obviating Brannon’s claim of
adverse conduct; but that conflates the issue of adverse conduct with its cause. At
this step, we need not ask whether the reduction in Brannon’s work was caused by
Brannon’s protected speech or by the budget reductions. All we need conclude, as
we do here, is that a jury could find that such a drastic decrease in business, if it
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resulted from retaliation, “would likely deter a person of ordinary firmness from the
exercise of First Amendment rights.” Bennett, 423 F.3d at 1254. 1
B. Causation
As relevant here, causation asks whether Finkelstein, in taking actions that
were adverse to Brannon, was subjectively motivated either to reduce Brannon’s
work beginning in 2007 or to remove Brannon from the wheel rotation system in
July 2009 because Brannon engaged in constitutionally protected speech by
testifying at the Aleman hearing. See Smith v. Mosley, 532 F.3d 1270, 1278 (11th
Cir. 2008). This subjective motivation issue is addressed through the Mt. Healthy
burden-shifting analysis:
[O]nce the plaintiff has met his burden of establishing that his protected
conduct was a motivating factor behind any harm, the burden of production
shifts to the defendant. If the defendant can show that he would have taken
the same action in the absence of the protected activity, he is entitled to
prevail on [his motion for judgment as a matter of law or prior to trial on]
summary judgment.
Id. (second alteration in original) (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 399
(6th Cir. 1999)); see Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S.
274, 287 (1977).
1
The district court also granted summary judgment to the defendant on Brannon’s claim
that the Public Defender’s office objected to Brannon being appointed by the state court or hired
by the State Attorney’s office in cases involving clients of the Public Defender’s office. Brannon
v. Finkelstein, No. 10-cv-61813, slip op. at 13 (S.D. Fla. Oct. 16, 2012). Construing the
arguments in Brannon’s brief liberally, Brannon has not raised this issue on appeal and he is thus
deemed to have abandoned it. See Allstate Ins. Co. v. Swann, 27 F.3d 1539, 1542 (11th Cir.
1994).
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1. Reduction in work beginning in 2007
Brannon contends that Finkelstein was subjectively motivated to reduce his
work because of his testimony at the Aleman hearing. In support, Brannon points
to Finkelstein’s testimony that he was “surprised” and “extremely disappointed” at
Brannon’s testimony at the hearing. There was also evidence that months later,
Finkelstein admitted in an email that he wanted Brannon to suffer “death by [] 1000
invisible cuts,” which could be interpreted to relate back to reductions in his referral
work.
Brannon received substantially more work from the Public Defender’s office
during July through December of 2007, when he received $288,875, as compared to
the first six months in 2008 immediately following his testimony at the Aleman
hearing, when he received only $125,792.50. The record also establishes that in the
eleven months prior to Brannon’s testimony at the Aleman hearing, Brannon’s
office received on average $47,448 of work per month from the Public Defender’s
office, while in the twelve months following his testimony, the monthly average
dropped to $19,418. Where adverse action “closely follows protected activity, it is
usually reasonable to infer that the activity was the cause of the adverse action.”
Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 745 (11th Cir. 1996).
Finkelstein argues that, even if these numbers are accurate, his office
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drastically curtailed its budget for hiring expert witnesses like Brannon during this
period of time and reduced Brannon’s work in proportion to the overall reductions.
Over the four fiscal years running from July 2005 through June 2009, Brannon
continued to receive approximately the same portion of the office’s total spending
on due process mental health experts: 28.2%, 31.32%, 29.26%, and 30.35%,
respectively. In other words, Brannon’s share of the Public Defender’s office’s
work following his testimony at the Aleman hearing in December 2007 until he was
removed from the wheel in July 2009 remained about the same. Finkelstein thus
contends that Brannon’s work would have been reduced regardless of Brannon’s
Aleman hearing testimony.
We believe that, based on the evidence in the record, a reasonable fact-finder
could find that Finkelstein was subjectively motivated to reduce and did reduce
Brannon’s work because of his Aleman hearing testimony. On the other hand, a
reasonable fact-finder could, but would not be required to, find that Finkelstein
would have reduced Brannon’s work in any event because of the Office’s budget
reductions. See Smith, 532 F.3d at 1279 (holding that summary judgment was
appropriate where a jury “would have to find that the defendants would have [taken
the adverse conduct] even in the absence of the protected conduct” (internal
quotation marks omitted)). With two permissible views of this evidence, summary
judgment was improperly granted to the defendant.
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2. Removal from the wheel rotation system in 2009
Brannon argues that his testimony at the Aleman hearing was also a
motivating factor behind Finkelstein removing him from the wheel rotation system
in 2009. Three pieces of evidence support Brannon’s argument.
First, Brannon testified at deposition that shortly after the Aleman hearing at
least six Assistant Public Defenders told him that they could not retain him as an
expert because Finkelstein was angry at Brannon. Brannon testified that they told
him that whereas he could previously be retained by any Assistant Public Defender,
now he could not be hired without approval from Finkelstein’s top assistants.
Although Brannon could not recall the specific words used in each conversation, he
recalled the names of the Assistant Public Defenders with whom he spoke. 2
Second, Bourg Carter testified that Assistant Public Defender Melisa McNeill
said sometime “after the Aleman testimony” but “way before” this lawsuit was filed
in September 2010 that she had been told that she could not hire Bourg Carter or
Brannon because of the animosity the Public Defender’s office had toward
Brannon.
2
Even if Brannon’s testimony regarding what the Assistant Public Defenders told him is
hearsay, as the district court found, it should be considered on summary judgment here because it
can be reduced to an admissible form at trial. See Jones v. UPS Ground Freight, 683 F.3d 1283,
1294 (11th Cir. 2012) (stating that the “most obvious way that hearsay testimony can be reduced
to admissible form is to have the hearsay declarant testify directly to the matter at trial”).
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Third, as noted earlier, on July 7, 2009, three weeks before Brannon’s
removal from the wheel, Finkelstein said in an email to one of his employees that
he wanted Brannon to professionally suffer “death by [] 1000 invisible cuts.
[W]ithering on the vine, pinned and wriggling on the wall with no target or issue or
martyrdom for him to seek sanctuary.”
Notwithstanding this evidence, Finkelstein argues that he would have
removed Brannon from the wheel regardless of Brannon’s Aleman hearing
testimony because Brannon publicly had expressed animosity towards the Public
Defender’s office. Brannon admitted at deposition that, “shortly after the wheel
system” was implemented in March 2009, he publicly criticized the Public
Defender’s office’s use of the wheel, calling it a “horrific idea that reinforces
mediocrity” because it “makes an assumption that everybody who has . . . a Ph.D.
or Psy.D. is of equal skill and talent in all areas. We all know that’s not the truth.”
Brannon further testified that he expressed this opinion to “[e]veryone who would
listen. Both chief judges. . . . Every single person that would listen to me.”
Moreover, on June 23, 2009, Brannon testified in a deposition related to a case
against a client of the Public Defender’s office, Barnard Joseph, that he had
concerns with the office, including that he was receiving less work under the wheel
rotation system and that he disagreed with the demotion of an Assistant Public
Defender from the position as head of homicide.
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We reject Brannon’s contention that his statements made against the Public
Defender’s office’s policies cannot be used to justify removal from the wheel
because he was provoked by Finkelstein into making them. Brannon relies on
NLRB v. Mueller Brass Co., where the Fifth Circuit stated that “[a]n employer
cannot provoke an employee to the point where she commits such an indiscretion
. . . and then rely on this to terminate her employment.” 501 F.2d 680, 686 (5th Cir.
1974). Although there is evidence here that Finkelstein was personally hostile to
Brannon, there is no evidence that the Public Defender’s office provoked him prior
to the statements he made against the office’s policies. Brannon spoke freely and
without provocation when he testified at the Joseph deposition and when he
criticized the wheel system starting in March 2009 to “[e]veryone who would
listen.”
Finkelstein argues that Brannon was treated no worse from the time of the
Aleman hearing to the Joseph deposition and that no decision was made to remove
Brannon from the wheel prior to July 28, 2009, the date that Finkelstein reviewed
Brannon’s testimony at the Joseph deposition.
As with Brannon’s reduced referral work discussed above, we believe that a
reasonable fact-finder could come to different conclusions as to why Brannon was
removed from the wheel. Finkelstein could have removed Brannon from the wheel
solely because of Brannon’s disparaging remarks about the Public Defender’s office
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regardless of his protected testimony at the Aleman hearing and any consequent
hostility that Finkelstein harbored. See Castle, 631 F.3d at 1197 (defendant is not
liable if he “would have taken the same action in the absence of the protected
conduct”). On the other hand, a reasonable jury could find that Brannon’s
testimony at the Aleman hearing caused the removal. We thus conclude that, as to
Brannon’s removal from the wheel rotation system, summary judgment was
improperly granted to Finkelstein.
II. Qualified Immunity
Prior to ruling on defendant’s motion for summary judgment, the district
court granted qualified immunity to Finkelstein in his individual capacity on
Brannon’s claim that Finkelstein violated his constitutional rights by reducing and
ultimately terminating his work as an expert witness for the Public Defender’s
office. Brannon v. Finkelstein, No. 10-cv-61813 slip op. at 11 (S.D. Fla. Oct. 3,
2011), ECF No. 30. The district court held that the balancing of interests of the
employee versus the State employer required by Pickering v. Board of Education,
391 U.S. 563 (1968), would not conclusively show that Finkelstein deliberately
violated Brannon’s First Amendment rights. This was so because Finkelstein could
reasonably believe that Brannon was biased against the Public Defender’s office
and thus “may very well have reasonably believed that legal ethics required his
actions.” Brannon, ECF No. 30, slip op. at 11.
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We affirm the grant of qualified immunity. We do so, however, on
somewhat different grounds because we now have the benefit of discovery
unavailable to the district court at the motion to dismiss stage.
“Qualified immunity provides protection for government officials performing
discretionary functions and sued in their individual capacities as long as their
conduct violates no clearly established statutory or constitutional rights of which a
reasonable person would have known.” Storck v. City of Coral Springs, 354 F.3d
1307, 1313 (11th Cir. 2003) (internal quotation marks omitted). Put another way,
the official is entitled to such immunity unless he both (1) violates clearly
established law and (2) was aware or reasonably should have been aware that he
was doing it.
First, the court must be convinced “that the legal norms allegedly violated by
the defendant were clearly established at the time of the challenged actions or the
law clearly proscribed the actions the defendant took.” Dartland v. Metro. Dade
Cnty., 866 F.2d 1321, 1322 (11th Cir. 1989) (internal quotation marks and
alterations omitted). And, second, we ask “whether a reasonable person in the
position of the defendant would have known that he was violating clearly
established law.” Hansen v. Soldenwagner, 19 F.3d 573, 578 (11th Cir. 1994).
In the context of a First Amendment retaliation claim, we have recognized
that a defendant “will only rarely be on notice that his actions are unlawful”
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because applying the Pickering balancing “involves legal determinations that are
intensely fact-specific and do not lend themselves to clear, bright-line rules.”
Maggio v. Sipple, 211 F.3d 1346, 1354 (11th Cir. 2000) (internal quotation marks
and alteration omitted). Likewise, in determining contested issues of causation, the
defendant is entitled to qualified immunity “[w]here the facts assumed for summary
judgment purposes . . . 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.” Foy v. Holston, 94 F.3d 1528, 1535 (11th Cir. 1996).
As we have noted earlier, when Brannon’s work was reduced following his
testimony at the Aleman hearing, the Public Defender’s office simultaneously
drastically reduced its overall budget for hiring expert witnesses like Brannon. The
evidence also suggests that while Brannon’s referrals dropped in absolute terms, his
proportional share of the Public Defender’s office’s work remained constant. And
it is not disputed that, when Finkelstein removed Brannon from the wheel rotation
system, Brannon had recently and publicly expressed his ill-will towards the Public
Defender’s office. Brannon was thus susceptible to cross-examination on the
subject whenever he testified on a Public Defender’s client’s behalf, which in turn
could compromise the effectiveness of his testimony.
Under the specific facts and circumstances of this case, in which there exists
evidence of both lawful and unlawful motivations for Finkelstein’s actions, “pre-
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existing law does not dictate that the merits of the case must be decided in
[Brannon’s] favor.” Id. Thus Finkelstein is entitled to qualified immunity in his
individual capacity on the retaliation claim.
CONCLUSION
For the reasons stated above, we VACATE the judgment of the district court
granting summary judgment to the defendant, AFFIRM the judgment of the district
court granting qualified immunity to defendant Finkelstein in his individual
capacity, and REMAND for further proceedings consistent with this opinion.
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