Daniel Gilroy v. R. Sean Baldwin

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 20-11458

Non-Argument Calendar

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D.C. Docket No. 2:16-cv-14521-JEM

DANIEL GILROY,

Plaintiff-Appellant,

versus

R. SEAN BALDWIN,

individually,

CITY OF FORT PIERCE, a Florida municipal

corporation,

Defendants-Appellees.

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Appeal from the United States District Court

for the Southern District of Florida

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(January 29, 2021)

Before LAGOA, BRASHER and MARCUS, Circuit Judges.

PER CURIAM:

Daniel Gilroy appeals the district court’s grant of summary judgment in favor

of the City of Fort Pierce (“the City) and its former police chief, R. Sean Baldwin,

on his 42 U.S.C. § 1983 claim that he was terminated from his position as a police

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officer in retaliation for exercising his First Amendment rights to speech and

association. Gilroy argues that the district court: (1) erred in deciding that he could

not show either that Baldwin was a decisionmaker subject to individual liability nor

that City Manager Robert Bradshaw and the City’s Civil Service Appeals Board

(“the Board”) were Baldwin’s cat’s paws; (2) erred in concluding that he could not

show that the City was subject to municipal liability under a policy or custom theory;

and (3) abused its discretion in declining to exercise supplemental jurisdiction over

his state-law claim. After thorough review, we affirm.

We review a district court grant of summary judgment de novo, viewing all

evidence and making all reasonable inferences in favor of the nonmovant. Vessels

v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005). Summary judgment

is appropriate when the record shows that there is no genuine issue as to any material

fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

A factual dispute exists where a reasonable factfinder could find by a preponderance

of the evidence that the nonmovant is entitled to a verdict. Kernel Records Oy v.

Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012). We review a district court’s refusal

to exercise supplemental jurisdiction for abuse of discretion. Amergi v. The

Palestinian Authority, 611 F.3d 1350, 1356 (11th Cir. 2010).

First, we are unpersuaded by Gilroy’s argument that the district court erred in

granting summary judgment on his First Amendment retaliation claim to the former

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police chief. Any person who, under color of law, deprives any citizen of any rights,

privileges or immunities secured by the Constitution and laws, shall be liable to the

party injured. 42 U.S.C. § 1983. The state may not discharge or demote a public

employee in retaliation for speech protected by the First Amendment. Bryson v.

City of Waycross, 888 F.2d 1562, 1565 (11th Cir. 1989). A public employee’s First

Amendment right to associate receives the same protection. D’Angelo v. Sch. Bd.

of Polk Cnty., Fla., 497 F.3d 1203, 1212 (11th Cir. 2007). An employee raising a

First Amendment retaliation claim must show by a preponderance of the evidence

that: (1) his speech is on a matter of public concern; (2) his First Amendment interest

in engaging in the speech outweighs the employer’s interest in prohibiting it; and (3)

his speech played a substantial part in the employer’s decision to demote or

discharge. Battle v. Bd. of Regents, 468 F.3d 755, 759-60 (11th Cir. 2006).

Independent of municipal liability, a decisionmaker inquiry “addresses who

has the power to make official decisions and, thus, be held individually liable” under

§ 1983. Quinn v. Monroe County, 330 F.3d 1320, 1326 (11th Cir. 2003). An official

or formal decisionmaker may, in the case of public employers, be identified “by

examining the statutory authority of the official alleged to have made the decision.”

Id. at 1328. We’ve explained that a defendant is a decisionmaker subject to

individual liability when he has the authority “not merely to recommend” the

plaintiff’s termination, “but to immediately effectuate” it. Id. (quotation omitted).

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At times, a discharge recommendation by a party without actual power to

discharge an employee may be actionable if the plaintiff proves the recommendation

“directly resulted in the employee’s discharge.” Stimpson v. City of Tuscaloosa,

186 F.3d 1328, 1331 (11th Cir. 1999). But this causation must be “truly direct” --

the plaintiff “must prove that the discriminatory animus behind the recommendation,

and not the underlying employee misconduct identified in the recommendation, was

an actual cause of the other party’s decision to terminate the employee.” Id.

One way of proving that the discriminatory animus behind a recommendation

caused a discharge is under the cat’s paw theory, which provides that a plaintiff may

establish causation by showing that the decisionmaker followed a biased

recommendation without independently investigating the complaint against the

employee. Id. at 1332 (recognizing the cat’s paw theory in the context of Title VII).

We’ve held that a plaintiff police officer failed to introduce any evidence showing

cat’s paw liability where the decisionmaking entity, in that case, a civil service

board: (1) had the “sole power and discretion to terminate police officers”; and (2)

conducted “a three day hearing to investigate the charges” where the plaintiff “was

represented by legal counsel and was allowed to put on defense evidence and

witnesses.” Id. We noted that it was “hard to imagine any other procedural device

that would ensure a more fair and independent decision.” Id.

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Florida law provides that a municipality must have a proposed municipal

charter that, among other things, prescribes the form of government and clearly

defines responsibility for legislative and executive functions. Fla. Stat. §

165.061(1)(e)(1). The City of Fort Pierce’s Charter provides that the City Manager:

(1) exercises “general supervision and control over all city departments, except the

office of city clerk, city attorney and city auditor”; and (2) has the power to remove

or suspend “all officers and employees” of the City except as otherwise provided by

the Charter or where the City Manager has authorized the head of a department or

office to do so. Fort Pierce, Fla., Code § 42(c) (2020). The Charter also establishes

a “civil service appeals board.” Id., § 82(a). The Board, among other things, must

“provide rules for the procedures and grounds for . . . dismissal of employees” and

hear appeals of any person in the classified service who is dismissed. Id. § 85(c)-

(d). In the event of an appeal, the Board “shall conduct [a] hearing” in which “the

affected employees and the city manager shall be given full opportunity to be heard

in person or with counsel.” Id. § 90(h). The “[B]oard’s findings and its decision []

shall be final” and “transmitted to the city manager and executed by him.” Id.

Here, the district court did not err in concluding, for purposes of summary

judgment, that Baldwin, the former police chief, was not the decisionmaker who

could effectuate Gilroy’s termination. Indeed, the only person authorized by statute

to terminate City employees was the City Manager, Robert Bradshaw. See Quinn,

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330 F.3d at 1328; Fort Pierce, Fla., Code § 42(c). Gilroy has pointed to no record

evidence to refute that statutory framework or to refute Baldwin’s interrogatory

testimony that the City Manager made the initial decision to terminate Gilroy and

that Baldwin merely recommended that Gilroy be terminated.

As for the cat’s paw theory -- assuming arguendo that it applies in the § 1983

context -- Gilroy also could not show that City Manager Bradshaw was Baldwin’s

cat’s paw. Indeed, Gilroy has provided no evidence about Bradshaw’s decision at

all, much less that Baldwin’s animus was its direct cause. Stimpson, 186 F.3d at

1331. Likewise, Gilroy could not show that the Board was Baldwin’s cat’s paw

because its proceedings were almost identical to those in Stimpson: a three-day

hearing in which Gilroy was represented by legal counsel and allowed to present

evidence and witnesses in his defense. Id. at 1332. Further, Gilroy fails to attribute

any retaliatory animus to the Board.

In short, we see no genuine issue of material fact that Baldwin was not liable

individually as a decisionmaker or that Bradshaw and the Board were not Baldwin’s

cat’s paws. Thus, the court did not err in granting summary judgment to Baldwin.

We also find no merit to Gilroy’s claim that the district court erred in granting

summary judgment to the City under Gilroy’s policy theory. A municipality may be

sued under § 1983 when execution of a government’s “policy or custom” inflicts the

injury. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). Municipal liability

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may arise in the termination context “provided that the decisionmaker possesses

final authority to establish municipal policy with respect to the action ordered.”

Quinn, 330 F.3d at 1325 (quotations and emphases omitted). Municipal liability

under § 1983 is precluded when “the final policymaker delegates decisionmaking

discretion” to a subordinate “but retains the power to review the exercise of that

discretion”; thus, “[f]inal policymaking authority over a particular subject area does

not vest in an official whose decisions in the area are subject to meaningful

administrative review.” Id. (quotations omitted). We’ve noted, in concluding that a

decisionmaker was not a policymaker, that a reviewing council had the power “to

reverse any termination decision made by” the decisionmaker and that the plaintiff

failed to “provide[] evidence” that the policymaking body “approved any improper

motive” that the decisionmaker may have had. Id. at 1326.

We’ve also held that two decisionmakers were not final policymakers where,

in relevant part, a city’s “governing documents provide[d] employees with an

opportunity for meaningful administrative review of termination decisions” with the

city’s civil service board, and there was “no evidence that the [b]oard merely rubber-

stamps the decisions of the appointing authorities.” Scala v. City of Winter Park,

116 F.3d 1396, 1402 (11th Cir. 1997). There, the plaintiff’s own prior experience

cut against his contrary argument “because [he] was able to convince the [b]oard to

reverse the demotion he had received in an earlier disciplinary proceeding.” Id. On

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this basis, we affirmed the grant of summary judgment in the city’s favor because

there was no evidence, and the plaintiff did not allege, that the board “approved any

improper motive” the decisionmakers may have had. Id. at 1403.

In this case, the district court did not err in holding that Gilroy could not

establish municipal liability under a policy theory. As the undisputed record reveals,

Baldwin was not the policymaker who could effectuate Gilroy’s termination, since

the Board had the statutory authority to reverse any decision like that. See Monell,

436 U.S. at 694; Quinn, 330 F.3d at 1325-26; Fort Pierce, Fla., Code § 90(h). Thus,

the Board was the final policymaker, and Gilroy could not attribute to it any

retaliatory animus; indeed, he affirmatively said he knew nothing about any Board

members or whether any of them even knew of his speech or association. See Scala,

116 F.3d at 1402; see also Hill v. Clifton, 74 F.3d 1150, 1152 (11th Cir. 1996)

(explaining that, even if a policymaker approved a decisionmaker’s actions, and

those actions were based on improper motives, the city would not be liable because

the plaintiff presented no evidence that the policymaker approved of those improper

motives). It is also undisputed that Baldwin, the person to whom Gilroy does

attribute retaliatory animus, had nothing to do with selecting the Board members.

And Gilroy’s arguments that the Board was not the policymaker because it merely

rubberstamped Baldwin’s purported decision is undermined by his own experience

-- the Board voted in his favor on only one of the two grounds for termination it

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reviewed. Accordingly, there is no genuine issue of material fact that Gilroy could

not establish municipal liability under a policy theory, and we affirm the district

court’s grant of summary judgment on this issue.

Similarly, we are unconvinced by Gilroy’s claim that the district court erred

in granting summary judgment to the City under Gilroy’s custom theory. A plaintiff

may prove the existence of a custom by proving the existence of a widespread

practice that, although not authorized by written law or express municipal policy, is

so permanent and well settled as to constitute a custom or usage with the force of

law. City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). “In other words, a

longstanding and widespread practice is deemed authorized by the policymaking

officials because they must have known about it but failed to stop it.” Brown v. City

of Fort Lauderdale, 923 F.2d 1474, 1481 (11th Cir. 1991). The plaintiff must show

that the municipality’s governing body had “actual or constructive knowledge” of

“a persistent and wide-spread practice.” Depew v. City of St. Marys, 787 F.2d 1496,

1499 (11th Cir. 1986). “[R]andom acts or isolated incidents are insufficient to

establish a custom or policy.” Id.

As the record reflects, the district court did not err in finding that Gilroy could

not establish municipal liability under a custom theory because he presented no

evidence that any policymaker had actual or constructive knowledge of any of

Baldwin’s purportedly anti-union behavior beyond an isolated incident. See Monell,

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436 U.S. at 694; Depew, 787 F.2d at 1499; Brown, 923 F.2d at 1481. In the one

incident Gilroy points to, Baldwin threatened to fire Gilroy during a meeting with a

city manager because Gilroy would not sign off on a furlough for all police officers.

However, Gilroy did not present any evidence that this meeting was more than an

isolated incident, nor that Baldwin’s anti-union animus was so permanent and well

settled that it had the force of law. See Praprotnik, 485 U.S. at 127. On this record,

there is no genuine issue of material fact that Gilroy could not establish municipal

liability under a custom theory. See Fed. R. Civ. P. 56(a); Monell, 436 U.S. at 694.

We affirm as to this issue as well.

Finally, we cannot conclude that the district court abused its discretion in

declining to exercise supplemental jurisdiction over Gilroy’s state-law claim that the

Board was improperly constituted under Fla. Stat. § 286.011. District courts have

supplemental jurisdiction over claims forming part of the same case or controversy

as those falling within its original jurisdiction. 28 U.S.C. § 1367(a). However, a

district court may decline to exercise supplemental jurisdiction if, in relevant part,

“the district court has dismissed all claims over which it has original jurisdiction.”

Id. § 1367(c)(3). In this event, courts may also consider additional factors, including

judicial economy, convenience, fairness to the parties, and whether all the claims

would be expected to be tried together. Amergi, 611 F.3d at 1366.

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Here, the district court did not abuse its discretion in declining to exercise

supplemental jurisdiction over Gilroy’s state-law claim because, as we’ve held, it

properly dismissed all the claims over which it had original jurisdiction. Therefore,

it was entitled to refuse supplemental jurisdiction over the state-law claim as the only

one remaining. Gilroy presents no argument that a contrary finding would be more

economic, convenient, or fair. See 28 U.S.C. § 1367(c)(3); Amergi, 611 F.3d at

1366. Accordingly, we affirm the district court’s decision in full. 1

AFFIRMED.

1

While Gilroy has raised challenges to the proceedings before the Board, they are not relevant to

the municipal liability inquiry; instead, they are the same as those he raised in support of his

Florida law claim for deprivation of property without due process. Notably, however, he does

not raise arguments about the district court’s dismissal of that claim on appeal and has

abandoned the argument. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008). Further,

his arguments about the Board’s composition are relevant only to his claim under Fla. Stat. §

286.011, which, as we’ve held, the district court properly dismissed.

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