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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-15398
Non-Argument Calendar
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D.C. Docket No. 4:16-cv-00069-MW-CAS
DARRYL NEWMAN,
GWENDOLYN FOREHAND,
Plaintiffs-Appellants,
DOYAL HESTER,
Plaintiff,
versus
CONSOLIDATED DISPATCH AGENCY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Florida
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(June 13, 2018)
Before MARCUS, JULIE CARNES, and HULL, Circuit Judges.
PER CURIAM:
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Plaintiffs-Appellants Darryl Newman and Gwendolyn Forehand appeal from
the district court’s grant of summary judgment in favor of Consolidated Dispatch
Agency (“CDA”). The Appellants had worked as public safety communications
officers (“PSCO”) at CDA, and had been involved in the dispatch of first
responders to a house fire. The responders had been given no warning that the
homeowner previously had threatened to shoot law enforcement officers on his
property, and upon arriving, a county sheriff’s deputy was fatally shot by the
owner. Thereafter, the Appellants were fired. The Appellants and Doyal Hester1
brought this action under 42 U.S.C. § 1983, alleging that when CDA fired them, it
violated the Equal Protection Clause of the Fourteenth Amendment and their
substantive due process rights under Article I, § 9 of the Florida Constitution. On
appeal, the Appellants argue that: (1) the district court erroneously held that their
substantive due process claim failed because they did not have a property interest
in their employment; and (2) genuine disputes of material fact exist about whether
they were denied substantive due process. After careful review, we affirm.
The essential, undisputed facts are these. Newman and Forehand began
working as communications officers for the City of Tallahassee Police Department
(“TPD”) in 1994. In 2012, TPD and the Leon County Sheriffs’ Office (“LCSO”)
consolidated their individual dispatch operations into one agency, CDA. CDA
1
Hester filed a separate notice of appeal, but he later withdrew it. He does not join in
this appeal.
2
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opened in April 2013, and PSCOs like Newman and Forehand processed and
dispatched emergency calls within Leon County. During the consolidation,
Newman and Forehand did not receive additional training on their job duties, but
they were trained in how to use CDA’s dispatch software, which differed from the
software program that TPD had used. The software allowed CDA supervisors to
pin premises and officer safety information to particular addresses, and dispatchers
could view the information while taking or dispatching calls by clicking on the
“premises hazard” tab. The information contained in the tab was not always
critical or related to officer safety. Newman and Forehand knew how to access
information in the “premises hazard” tab by clicking on it. They also knew that
first responder safety was the top priority of emergency dispatchers, and an officer
safety threat would be pertinent to first responders.
On November 8, 2014, a sergeant from the LCSO asked a CDA supervisor
to warn first responders that Curtis Holley had threatened to shoot any law
enforcement officer that came to his home at 3722 Caracas Court. The CDA
supervisor entered the information in the “premises hazard” tab for the address.
Two weeks later, on November 22, 2014, CDA received a call about a house fire at
3722 Caracas Court. Hester answered the call and sent it to fire department and
law enforcement dispatchers without accessing the “premises hazard” tab for the
address. Newman sent the call to the fire department, and Forehand supervised a
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trainee in forwarding the call to law enforcement. Neither Newman nor Forehand
accessed the “premises hazard” tab for 3722 Caracas Court while performing their
duties. First responders from the Tallahassee Fire Department and the LCSO were
sent to the property with no warning of Holley’s threats.
At 3722 Caracas Court, Holley shot at first responders, killing one sheriff’s
deputy, wounding another, and missing several firefighters. Newman and
Forehand were placed on administrative leave the same day. After an internal
investigation, Newman and Forehand were fired. Hester was allowed to retire.
The Appellants and Hester initiated this action, alleging violations of the
U.S. Constitution and the Florida Constitution. The district court granted summary
judgment, holding that the substantive due process claim failed because the
Appellants and Hester had no property interest in their jobs. The court also
rejected the equal protection claim because the Appellants and Hester did not
identify valid comparators or show purposeful discrimination, and CDA had a
rational basis for its employment decisions. This appeal followed.
We review the district court’s grant of summary judgment de novo.
McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir. 2004). Summary judgment is
proper when, viewing the evidence in the light most favorable to the nonmovant,
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. Fed. R. Civ. P. 56(a). We may
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affirm for any reason supported by the record, even if not relied upon by the
district court. United States v. Chitwood, 676 F.3d 971, 975 (11th Cir. 2012).
Even assuming that the Appellants had a property interest in their continued
employment under Florida law, 2 we are unpersuaded by their claim that genuine
disputes of material fact remain as to whether they were denied substantive due
process. “[T]he basic principle of substantive due process is the protection of the
individual from an abusive exercise of governmental powers.” Polakoff v. Dep’t
of Ins. & Treasurer, 551 So. 2d 1223, 1225 (Fla. App. 1989). The Appellants
concede that this case does not involve a fundamental right. Where no
fundamental rights are involved, the test is essentially the same for both equal
protection and substantive due process analysis. United Yacht Brokers, Inc. v.
Gillespie, 377 So. 2d 668, 671 (Fla. 1979); State v. Walker, 444 So. 2d 1137, 1138
(Fla. App. 1984). The state’s action can be sustained by a showing that it was
rationally and reasonably related to some legitimate purpose and was not arbitrarily
or capriciously imposed. United Yacht Brothers, Inc., 377 So. 2d at 670. The
2
Under Article I, § 9 of the Florida Constitution, “[n]o person shall be deprived of life,
liberty or property without due process of law.” The Appellants argue that they had property
interests in their jobs because the policies in the City of Tallahassee Personnel Manual, imposed
upon CDA by interlocal agreement, created a legitimate expectation of continued employment.
We look to state law to determine the existence of a property right, see Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 538 (1985), and Florida courts have recognized that a property
interest can be created by policies and practices of an institution that support claims of
entitlement, see Metro. Dade Cty. v. Sokolowski, 439 So. 2d 932, 934 (Fla. App. 1983). But we
need not decide whether the City of Tallahassee Personnel Manual establishes policies and
practices that support claims of entitlement because, as we explain in detail, CDA’s termination
decisions did not violate the Appellants’ rights to substantive due process.
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burden is on the party attacking the government’s action to show that “there is no
conceivable factual predicate which would rationally support” the action. Silvio
Membreno & Fla. Ass’n of Vendors, Inc. v. City of Hialeah, 188 So. 3d 13, 25
(Fla. App. 2016) (quotation and citation omitted) (emphasis in original).
The undisputed record shows that the Appellants had 20 years of experience
in emergency dispatching and knew the importance of first responder safety, the
pertinence of threats to first responders, and the method for checking the “premises
hazard” tab that contained that information. There is no dispute that the
information about Holley’s threats was available in the tab on November 22, 2014.
There is also no dispute that first responders went to 3722 Caracas Court with no
warning that Holley had threatened to shoot law enforcement, and a sheriff’s
deputy was fatally shot. The Appellants’ termination was rationally and
reasonably related to the legitimate purposes of disciplining a fatal exercise of poor
judgment and deterring other PSCOs from making similar choices. United Yacht
Brothers, Inc., 377 So. 2d at 670.
We are unpersuaded by the Appellants’ argument that their termination was
arbitrary because there was no CDA protocol requiring them to check the
“premises hazard” tab, they were never warned of a requirement to look at
“premises hazards,” and no other PSCOs had been fired for failure to access the
tab. Even if clicking on the tab was discretionary, the Appellants were
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nevertheless required to gather and disseminate pertinent information, pertinent
information was available to them, and they failed to access it. They were aware
of this responsibility based on their two decades of experience, and they knew how
to access the “premises hazard” tab. Moreover, there is no evidence that any other
PSCO’s failure to open the tab resulted in the death of a first responder.
The Appellants also argue that their termination was the result of an
improper motive because the CDA’s claimed reason for its employment decision
was the Appellants’ violation of CDA protocols, but no protocol required
accessing the “premises hazard” tab, no specific protocols were named until after
the fact, and CDA developed a “premises hazard” protocol only after the 3722
Caracas Court incident. We remain unconvinced. Assuming that CDA’s cited
reason for the Appellants’ termination can be refuted, the Appellants still have not
shown that there is no conceivable set of facts to support CDA’s employment
decision. Silvio Membreno, 188 So. 3d at 25. Similarly, their argument that
evidence shows that their termination was meant to shift blame away from the
CDA itself is unconvincing. Even if CDA needed to improve its policies and
procedures, the Appellants still exercised poor judgment, despite knowledge and
years of experience, to fatal results. The CDA’s termination decisions had rational
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bases and were not arbitrary or capricious. United Yacht Brothers, Inc., 377 So. 2d
at 670. 3
Accordingly, the order of the district court granting summary judgment in
favor of CDA is affirmed.
AFFIRMED. 4
3
CDA argues that the Appellants’ substantive due process claim is barred by our holding
in McKinney v. Pate, 20 F.3d 1550, 1560 (11th Cir. 1994) (en banc) (“[I]n non-legislative cases,
only procedural due process claims are available to pretextually terminated employees.”). This
Court and the Florida courts have not decided whether the McKinney bar applies to substantive
due process claims under the Florida Constitution, but we need not decide that question because
the instant claim fails even if it is not barred.
4
CDA moves for sanctions under Fed. R. App. P. 38, 28 U.S.C. § 1927, and our inherent
authority. That motion is DENIED.
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