Sharman v. City of Tallahassee

ROBERT SHARMAN, JR., Plaintiff-Appellant, v. CITY OF TALLAHASSEE, MIKE TADROS, Individually, Defendants-Appellees.

No. 20-10063

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

October 14, 2020

[DO NOT PUBLISH]

Non-Argument Calendar

D.C. Docket No. 4:18-cv-00231-MW-CAS

Appeal from the United States District Court for the Northern District of Florida

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and BRASHER, Circuit Judges.

PER CURIAM:

Robert Sharman Jr., a former construction crew chief in the Wastewater Treatment Division of the Underground Utilities and Public Infrastructure Department for the City of Tallahassee, appeals the summary judgment against his amended complaint against the City, and the Manager of the Department, Mike Tadros. Sharman complained that the City and Tadros fired him in retaliation for exercising his right to free speech under the First Amendment by refusing to sign an oath of loyalty and by sending a supervisor photographs of wastewater workers violating safety rules. 42 U.S.C. § 1983. Sharman also complained that the City fired him in retaliation for sending the photographs in violation of the Florida Public Employee Whistleblower Act, Fla. Stat. § 112.3187, and because of his age in violation of the Florida Civil Rights Act, id. § 760.10(1)(a). The district court ruled that Sharman's complaints of retaliation failed because no "causal link existe[d] between his termination and either his refusal to sign a loyalty oath or his texting of workplace safety violation photos" and because "a reasonable jury could only find that the Defendants would have terminated [him] even in the absence of these activities." The district court also rejected Sharman's claim of discrimination on the ground that "no record evidence—other than the fact that a 49-year-old assumed [his] job functions once his position was eliminated—. . . [established] that [the City] discriminated against [him] based on [his] age" of 54. Because Sharman failed to prove that the legitimate business reason the City proffered foreliminating his position in the Division was a pretext for unlawful retaliation or discrimination, we affirm.

The City hired Sharman in 1991, and through promotions, he eventually served as one of two construction crew chiefs at a water reclamation station. On July 20, 2017, the Manager of the Wastewater Treatment Division, Joseph Cheatham, fired Sharman, his fellow crew chief Danny Brown, and two other employees at the reclamation station. Cheatham told Sharman that the City eliminated the positions to make the Division more efficient and cost-productive. Troy Kinsey, a mechanic who had served more than 6 years as a pump station foreman at the reclamation station, assumed Sharman's and Brown's duties.

Sharman alleged that the City and Tadros fired him, in large part, based on two past events. The first event occurred in November 2014 when Sharman refused to sign a written oath to act professionally and honestly as a public servant and instead wrote on the form, "I signed at start date." The second event occurred in September 2015 when Sharman texted to Michael Corrigan, a safety specialist in the human resources department, photographs taken by another city employee that showed three wastewater workers in raw sewage at a pump station wearing hard hats when the situation required a full scuba suit. Corrigan emailed the photographs to his supervisor, Jennifer Hill, who forwarded the photographs toTadros. Sharman alleged that testimony from himself, Corrigan, and Kinsey concerning Tadros's response to the photographs evidenced his retaliatory animus.

After the City and Tadros moved for summary judgment, Sharman submitted a response to which he attached new evidence to support his complaint of age-based discrimination. Sharman's new evidence consisted of charges filed with the Equal Employment and Opportunity Commission and lawsuits filed against the City by nine City employees.

The City and Tadros moved to strike Sharman's evidence of the employment actions against the City and to strike certain deposition testimony concerning Tadros. The City and Tadros sought to exclude the evidence about other employment actions based on their belated disclosure, see Fed. R. Civ. P. 26, 37, and on their unsworn allegations, see Gordon v. Watson, 622 F.2d 120, 123 (5th Cir. 1980). They also sought to exclude as inadmissible hearsay the second- and third-hand statements by Sharman, Corrigan, and Kinsey concerning Tadros's outrage about the photographs, his demands to unmask the photographer and the distributor, and his desire to dismiss Sharman. See Fed. R. Evid. 801(c), 802, 805. The district court granted the motion "to the extent it sought to strike evidence not 'reducible to admissible form' at trial."

Sharman has abandoned any challenge he could have made to the adverse evidentiary ruling. "[A]n appellant abandons a claim when he . . . raises it in aperfunctory manner without supporting arguments and authority." Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 682 (11th Cir. 2014); see, e.g., Fed. R. App. P. 28(a)(8)(A). Sharman makes a cursory argument that, "[t]o the extent the District Court excluded any testimony . . . detailed in [his] statement of facts, . . . all such referenced hearsay is either reduceable to admissible form, or was not offered to prove its own truth." Because Sharman fails to identify what hearsay testimony is admissible or to discuss how the district court erred, we deem abandoned any argument that Sharman might have made to use the second- and third-hand statements that he, Corrigan, and Kinsey made about Tadros. We also deem abandoned any argument that Sharman might have made that the district court erred by excluding his records of other employment actions against the City.

We review a "summary judgment de novo, viewing the evidence in the light most favorable to the non-moving party," Sharman. Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1134 (11th Cir. 2020) (en banc) (alteration adopted and internal quotation marks omitted). As movants, the City and Tadros must "show[] that there is no genuine dispute as to any material fact and [that they are] entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Sharman cannot defeat summary judgment with a "mere scintilla of evidence," Gogel, 967 F.3d at 1134 (quoting Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990)), or with self-serving allegations not supported by personal knowledge, Stewart v. Booker T. Washington Ins., 232 F.3d 844, 851 (11th Cir. 2000).

Sharman complained of retaliation for speech protected by the First Amendment, 42 U.S.C. § 1983, and made as a whistleblower in public employment in Florida, Fla. Stat. § 112.3187, and of discrimination based on his age, id. § 760.10(1). Federal law prohibits employers from firing employees in retaliation for engaging in speech protected by the First Amendment. Alves v. Bd. of Regents, 804 F.3d 1149, 1159 (11th Cir. 2015). In Florida, the Whistleblower Act prohibits a government entity from dismissing an employee to retaliate for his disclosure of information concerning "[a]ny act or suspected act of gross mismanagement, malfeasance, misfeasance . . . or gross neglect of duty committed by an employee of an agency." Fla. Stat. § 112.3187(4)(b), (5)(b). Florida law also makes it unlawful for an employer to discharge an employee because of his age. Id. § 760.10(1)(a).

We apply two separate burden-shifting tests for Sharman's complaints. With respect to Sharman's complaint of retaliation in violation of the First Amendment, if Sharman establishes that his speech is protected and that his speech played a substantial role in the decision to discharge him, the burden shifts to the City to prove by a preponderance of the evidence that it would have made the same employment decision absent Sharman's protected speech. See Akins v. Fulton Cty.,420 F.3d 1293, 1303 (11th Cir. 2005). As to his complaints of retaliation in violation of the Whistleblower Act and of age-based discrimination in violation of the Florida Civil Rights Act that are based on circumstantial evidence, we apply a version of the burden-shifting test provided in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that test, if Sharman establishes a prima facie case of retaliation or...