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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-10218
Non-Argument Calendar
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D.C. Docket No. 4:17-cv-00565-RH-CAS
CLINTON O. SMITH,
Plaintiff-Appellant,
versus
CITY OF TALLAHASSEE,
ROBERT E. MCGARRAH,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(October 16, 2019)
Before ED CARNES, Chief Judge, ROSENBAUM, and BRANCH, Circuit
Judges.
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PER CURIAM:
Clinton Smith filed a complaint in Florida state court against the City of
Tallahassee and Robert McGarrah, alleging retaliation in violation of the First
Amendment and the Florida Whistleblower Act (FWA). The City and McGarrah
removed the action to the Northern District of Florida and filed a motion for
summary judgment, which the district court granted as to each claim. The district
court also denied Smith’s motion to remand the FWA claim to the state court. This
is Smith’s appeal.
I.
The facts are as follows.1 The City’s Electric Utility Department provides
electrical services to residents in and near Tallahassee. The Electric Utility
Department originally had two divisions: the Power Engineering division and the
Transmission and Distribution division (T&D). Power Engineering had 25 to 30
employees, and T&D had around 120 employees. McGarrah was the general
manager of both divisions.
In 2015 the City hired Smith as the assistant general manager of the Power
Engineering division. Smith was selected for that position over another applicant,
Richard Ash, because Smith appeared to have a more flexible management style.
1
While the “facts” as accepted for purposes of summary judgment may not be the actual
facts of the case, we conduct our analysis based on the evidence viewed in the light most
favorable to Smith. We must accept that view of the facts at this stage of the proceedings.
Feliciano v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013).
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From 2016 to 2017 Smith complained to McGarrah at least nine times about
issues within the Electric Utility Department. Several of his complaints centered
on what he viewed as improper favoritism and nepotism. He complained several
times about his coworkers. He accused Ash of having diverted electrical crews
from a hospital during the recovery effort following a hurricane. He also reported
to the Parks and Recreation department that — contrary to the Electric Utility
Department’s official stance — a transmission line above a city park was causing
park users to be shocked by the playground equipment. When McGarrah learned
that Smith had contradicted the Electric Utility Department’s official stance, he
told Smith that he wished he had not expressed his personal opinion about what
caused the shocks.
As of 2017 the City’s general budget had been operating on a deficit for
several years. Due to that deficit, certain departments tried to “identify any
organizational changes or operational efficiencies” that could be implemented to
cut expenses and improve “service delivery” to customers. City Manager Rick
Fernandez asked the Deputy City Manager, Reese Goad, to “find efficiency”
within the City departments. Fernandez instructed the heads of other departments
to make their “best professional recommendations” on how to make the City’s
services more efficient. As part of the effort to increase efficiency, the City
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combined three departments (but not the Electric Utility Department) into others,
which led to the termination of three department heads.
In May 2017 McGarrah met with Goad to recommend that the City merge
the Power Engineering and T&D divisions. Unlike the general City budget, the
Electric Utility Department had been operating on a surplus for the last two years
and was projected to have another surplus in 2018. Despite that surplus, McGarrah
testified that he believed the merger was necessary to promote efficiency because
of historical tensions between the divisions. He testified that the tension between
the divisions was apparent during the hurricane recovery. Goad agreed with
McGarrah’s recommendation to merge the Power Engineering and T&D divisions.
In July 2017 the City merged the divisions and kept Ash on as assistant general
manager of the newly combined division. The City eliminated Smith’s position
and terminated his employment.
McGarrah testified that he recommended that the City hire Ash for the
assistant general manager position instead of Smith because of Ash’s experience
and tenure with the City. Ash had worked for the City since September 2012. He
was promoted to assistant general manager of T&D in 2016, where he supervised
around 120 people, as compared to the 20 or 30 people Smith supervised. Before
his employment with the City, Ash held a similar position with a public utility for
27 years. At that job, Ash supervised the line crews and engineering personnel.
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Smith had worked for another public utility as well, but only for seven years.
McGarrah believed that Ash had a better working relationship with his peers than
Smith. So McGarrah decided that Ash was better suited for the new job and that
Smith would have to be discharged.
Before the merger Smith talked to McGarrah and other department leaders
about the reorganization effort. Smith testified that he did not recall McGarrah
ever discussing any “legitimate” organizational or budget reasons for merging the
divisions. It was Smith’s view that the merger was a way to get rid of “people that
had pissed [McGarrah] off.” Smith believed that he in particular had angered
McGarrah when he voiced his opinion about the transmission line over the city
park. Before Smith expressed his concerns about the transmission line, he and
McGarrah had gone to lunch two to three times a week. After he did so, they had
lunch together less often. Two employees approached Smith and asked him what
he had done to “piss off” McGarrah.
As a result of the reorganization, some Electric Utility Department
employees received raises. The City promoted one employee, Jess Gerrell, to a
supervisor position within the new division. His promotion made him responsible
for the “Line Crews, Service Team and Vegetation Management.” The City’s
layoff policy prevented terminated employees from displacing a permanent
employee. But if a terminated employee applied to a vacant position for which he
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or she was qualified, the department with the vacancy was required to interview
the employee. Smith did not apply for the position that was filled by Gerrell.
II.
Smith challenges the district court’s grant of summary judgment to the
defendants, which we review de novo. Vessels v. Atlanta Indep. Sch. Sys., 408
F.3d 763, 767 (11th Cir. 2005). Summary judgment is appropriate when the record
demonstrates 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).
Government employers may not discharge public employees in retaliation
for speech protected by the First Amendment. Alves v. Bd. of Regents, 804 F.3d
1149, 1159 (11th Cir. 2015). To establish a prima facie case of First Amendment
retaliation, the employee must show that (1) his speech relates to a matter of public
concern, (2) his free speech interests outweigh the public employer’s interest in
efficiently fulfilling its responsibilities, and (3) the speech played a substantial or
motivating role in the employer’s decision to take the adverse action. See Akins v.
Fulton Cty., 420 F.3d 1293, 1303 (11th Cir. 2005). Once the employee makes that
showing, the burden shifts to the employer to prove by a preponderance of the
evidence that it would have made the same employment decision absent the
protected speech. Cook v. Gwinnett Cty. Sch. Dist., 414 F.3d 1313, 1318 (11th
Cir. 2005). The employer must show that, regardless of the speech, it would have
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terminated the employee “in light of its knowledge, perceptions, and policies at the
time of the termination.” Stanley v. City of Dalton, 219 F.3d 1280, 1293 (11th Cir.
2000) (quotation marks and alterations omitted). We use a case by case approach
to determine if an employer has made that showing. Id. at 1294. We do so without
second guessing the business decisions of the employer. Rowell v. Bellsouth
Corp., 433 F.3d 794, 798 (11th Cir. 2005).
The FWA prohibits retaliation against whistleblowers in public employment.
See Fla. Stat. § 112.3187(2). We analyze FWA claims under the burden-shifting
framework applicable in cases brought under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e. See Sierminksi v. Transouth Fin. Corp., 216 F.3d 945,
950 (11th Cir. 2000) (applying the burden-shifting framework to a claim brought
under Florida’s private whistleblower act, Fla. Stat. § 448.102); see also
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801–05 (1973) (establishing a
burden-shifting test for claims brought under Title VII); Griffin v. Deloach, 259
So. 3d 929, 931 (Fla. 5th DCA 2018) (applying the Title VII burden-shifting
framework to the plaintiff’s FWA claim). The employee first must make a prima
facie case of retaliation by showing that (1) he engaged in statutorily protected
activity, (2) he suffered an adverse personnel action, and (3) there is a causal
connection between the protected activity and the adverse personnel action.
Olmstead v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998). After the
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employee makes that showing, the burden shifts to the employer to show that there
was a legitimate, nonretaliatory reason for the adverse action. Id. The burden then
shifts back to the employee to show that the employer’s legitimate, nonretaliatory
reason is merely pretext for prohibited retaliation. Id. In doing so, the employee
must rebut the employer’s reason “head on.” Chapman v. AI Transp., 229 F.3d
1012, 1030 (11th Cir. 2000) (en banc). The employee cannot succeed simply by
disputing the wisdom of that reason. Id. “To show pretext, [the employee] must
demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could find them unworthy of credence.” Alvarez v. Royal
Atl. Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010) (quotation marks
omitted).
Even if we assume that Smith has made out a prima facie case of retaliation
under the First Amendment and FWA, he still must show pretext. See id.
(assuming that the plaintiff established a prima facie case of discrimination under
Title VII but affirming the grant of summary judgment to the defendant because
the plaintiff failed to show pretext). In order to overcome summary judgment,
Smith needed to create a genuine issue of material fact as to whether he would
have been fired regardless of his speech and whether the reasons for his discharge
were pretext for unlawful retaliation. See id. (“It matters not whether [the plaintiff]
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has made out a prima facie case if [he] cannot create a genuine issue of material
fact as to whether [the defendant’s] proffered reasons for firing [him] are pretext
masking discrimination.”). He has not done so.
As to Smith’s First Amendment claim, the evidence shows that he would
have lost his job because of the reorganization effort, regardless of any protected
speech. Cook, 414 F.3d at 1318. For several years before Smith’s discharge, the
City sought to “identify any organizational changes or operational efficiencies”
that could improve its customer service. To achieve efficiency, it consolidated
three departments and terminated the heads of those departments. When the City
consolidated the Electric Utility Department in 2017, it did so with the dual goals
of making its services more efficient and eliminating tensions between the Power
Engineering and T&D divisions that impacted productivity. We do not second
guess the wisdom of those goals. Rowell, 433 F.3d at 798. Smith has not shown a
genuine issue of material fact that his complaints led to his termination and that the
consolidation based on the restructuring of the Electric Utility Department was just
a pretext for retaliating against him. Stanley, 219 F.3d at 1293; Cook, 414 F.3d at
1318. The defendants were entitled to summary judgment on Smith’s First
Amendment claim.
Turning to the FWA claim, Smith has failed to rebut “head on” the
defendants’ legitimate, nonretaliatory reasons for terminating him. See Chapman,
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229 F.3d at 1030. He argues that the defendants’ proffered reasons are pretextual
because the Electric Utility Department had a budget surplus and did not need to
consolidate the divisions. But while the Electric Utility Department had a budget
surplus, the City had been operating on a deficit for several years. Recognizing
that, Fernandez asked the department heads to find ways to operate more
efficiently. One of the ways they believed they could increase efficiency was to
consolidate departments, which could lead to cost savings. So consolidating the
Electric Utility Department was a way to improve the general City budget
situation. And even aside from the City’s budget concerns, McGarrah testified that
saving money was not the sole reason for combining the divisions. He believed
that combining Power Engineering and T&D would resolve historical tensions
between the divisions and allow the Electric Utility Department to work more
efficiently. The fact that the Electric Utility Department had a surplus does not
rebut these legitimate reasons for consolidating the divisions, which led to the
termination of Smith’s position. Id.
Smith also contends that the defendants’ reasons for hiring Ash instead of
him to head the consolidated division are pretextual because Ash was less qualified
for the job. He argues that the fact that McGarrah was “pissed” at him after he
expressed his opinion about the transmission line issue shows that the defendants
fired him in retaliation for his speech. See Sierminski, 216 F.3d at 950. Those
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arguments lack merit. The evidence does not show that Smith was more qualified
than Ash for the position. Although Smith had been an assistant general manager
for longer than Ash, Ash had worked for the City longer. As assistant general
manager for T&D, Ash supervised around 120 employees, while Smith supervised
only 25 to 30 employees in the Power Engineering division. Before working for
the City, Ash had been a supervisor with a public utility for 27 years. Smith had
worked at a public utility for only seven years before working for the City.
McGarrah believed that Ash’s role as the assistant general manager of T&D
made him well suited to supervise the larger, consolidated division. McGarrah
also believed that Ash had a better working relationship with his peers. That Smith
instead of Ash had been chosen to serve as the assistant general manager of the
Power Engineering division, does not mean that Smith was more qualified to
supervise the newly consolidated division. And the fact that McGarrah allegedly
was “pissed” at Smith because he expressed his personal opinion about the
transmission line issue does not rebut the defendants’ reasons for choosing Ash to
lead the new division. Chapman, 229 F.3d at 1030. There is no genuine issue of
material fact about whether the defendants made a business decision that Ash was
better for the new job, and we do not act as a “super-personnel department” and
second guess that decision. See id. (quoting Elrod v. Sears, Roebuck & Co., 939
F.2d 1466, 1470 (11th Cir. 1991)).
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Finally, Smith contends that he should have been offered the supervisor
position that was given to Gerrell. If he had applied for and had been qualified for
it, he would have been guaranteed an interview under the City’s layoff policy. But
Smith failed to show that he was qualified for the position, which involved
supervising line crews, the service team, and vegetation management. More
importantly, he never applied for the job. We cannot say that the City’s failure to
offer Smith a new supervisor position that he did not apply for showed that its
legitimate reason for discharging him from the other position was “unworthy of
credence.” Alvarez, 610 F.3d at 1265. Smith has failed to show that the
defendants’ reasons were pretext for unlawful retaliation. We affirm the district
court’s grant of summary judgment to the defendants on Smith’s First Amendment
and FWA claims.
III.
Smith also challenges the district court’s denial of his motion to remand his
FWA claim to the state court. We review the district court’s denial of Smith’s
motion to remand de novo and its decision to exercise supplemental jurisdiction
over the state law claim for abuse of discretion. Parker v. Scrap Metal Processors,
Inc., 468 F.3d 733, 738 (11th Cir. 2006); Henderson v. Wash. Nat. Ins. Co., 454
F.3d 1278, 1281 (11th Cir. 2006).
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A party may remove a state court action to federal court when the relevant
federal court has diversity or federal question jurisdiction. See 28 U.S.C.
§ 1441(a). A federal court has supplemental jurisdiction over state law claims
when they “are so related to claims in the action within such original jurisdiction
that they form part of the same case or controversy under Article III of the United
States Constitution.” 28 U.S.C. § 1367(a). But a district court may decline to
exercise its supplemental jurisdiction when (1) the state law claim raises a novel or
complex issue of state law, (2) the claim substantially predominates over any
claims that the district court has original jurisdiction over, (3) the court has
dismissed all the other claims that it has original jurisdiction over, or (4) there are
other compelling reasons for declining jurisdiction. Id. § 1367(c)(1)–(4). The
court should consider “judicial economy, convenience, fairness, and comity” in
exercising its supplemental jurisdiction. Rowe v. City of Fort Lauderdale, 279
F.3d 1271, 1288 (11th Cir. 2002).
The district court did not abuse its discretion by deciding the FWA claim on
the merits and denying Smith’s motion to remand the action to state court after
disposing of the federal claim. Henderson, 454 F.3d at 1281; Parker, 468 F.3d at
738. The First Amendment and FWA claims involved the same facts, making the
FWA claim “so related” to the First Amendment claim that it was “part of the same
case or controversy.” 28 U.S.C. § 1367(a).
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Smith argues that the FWA claim should have been remanded to the state
court because the FWA is “unique and contains discrete multiple parts.” That
argument lacks merit. Florida courts analyze FWA claims under the McDonnell
Douglas burden-shifting framework. See Griffin, 259 So. 3d at 931. That
standard, which was developed by the Supreme Court in the Title VII context, is
routinely used by federal courts. See McDonnell Douglas Corp., 411 U.S. at 801–
05. The district court did not have to dive deep into the state law to resolve the
FWA claim. Because the FWA claim involved the same facts as the First
Amendment claim and the familiar burden-shifting framework applied, judicial
economy favored the court’s consideration of the FWA claim in its summary
judgment order. Rowe, 279 F.3d at 1288. The district court acted within its
discretion in exercising supplemental jurisdiction.
AFFIRMED.
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