Drago v. Jenne
| Decision Date | 27 June 2006 |
| Docket Number | No. 05-11276.,No. 05-14866.,05-11276.,05-14866. |
| Citation | 453 F.3d 1301 |
| Parties | Robert DRAGO, Plaintiff-Appellant, v. Ken JENNE, Sheriff of Broward County, Florida, Broward County Sheriff's Office, Defendants-Appellees. Robert Drago, Plaintiff-Appellant, v. Ken Jenne, Sheriff of Broward County, Florida, Broward County Sheriff's Office, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Carmen Maria Rodriguez, Palmetto Bay, FL, for Defendants-Appellees.
Appeals from the United States District Court for the Southern District of Florida.
Before BLACK, PRYOR and COX, Circuit Judges.
Robert Drago appeals the district court's grant of summary judgment to the Broward County Sheriff's Office and Sheriff Ken Jenne (collectively, BSO) on Drago's claims under the Family and Medical Leave Act (FMLA), 29 U.S.C. § 2601 et seq., the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., and the Florida Civil Rights Act (FCRA), Fla. Stat. §§ 760.01-760.11. Drago also appeals the district court's denial of his Federal Rule of Civil Procedure 59(e) motion to alter or amend the judgment. We affirm.
Beginning in July 2000, Drago was a captain in BSO, assigned to District 11, Area 1. In that position, Drago supervised over one hundred and twenty people and was accountable to his superiors for Area 1's operational performance. He was responsible for making periodic presentations to those superiors as part of the Powertrac Rating System. In August 2000, after his first Powertrac presentation, Drago's superiors expressed concerns about the presentation and his district's performance. After Drago's Powertrac presentation in January 2001, one superior commented that Drago "was not as familiar as he should be with investigations" and recommended "more preparation and organization." (R.2-53, Ex. 1 at 4.)
In March 2001, Major Rick Frey became Drago's direct supervisor. Shortly thereafter, Frey formed the opinion that Drago was insubordinate, disruptive to the command, and undermined Frey's authority as the district chief. In April of that same year, Frey threatened to demote Drago for insubordination and "for not knowing the answer to [Frey's] questions in the morning meetings and [for Drago's] inability to respond." (R.2-55, Ex. 6 at 2.) On July 6, 2001, Frey advised Drago in writing of Drago's performance deficiencies and advised Drago that he had five weeks "to effect some drastic change." (R.2-56, Ex 4.) Later that summer, other evaluators characterized Drago's attitude during his August 2001 Powertrac presentation as "argumentative," "defensive," "cocky," "irritating," and "borderline disrespectful," particularly when deficiencies were brought to his attention. (R.2-53, Ex. 2.)
On September 18, 2001, Drago gave another Powertrac presentation, during which he again received negative comments about his performance. Lt. Colonel John G. Auer told Drago, "Your district is succeeding and doing very well in spite of you." (R.2-55 at 33-34.) Immediately after the presentation, Frey told Drago that they needed to meet about Drago's performance deficiencies. Rather than meeting with Frey, however, Drago went to breakfast alone and did not return to the command. Because Drago had not communicated to anyone at his command that he would not be reporting to work that day and because no one was able to reach him by telephone or pager, BSO sent a patrolman to Drago's home, where the patrolman found Drago's BSO-issued car in the driveway. After breakfast, Drago had returned home to change his clothes and then had attended an emergency appointment with a psychologist.
On September 19, 2001, Frey recommended to his superior, Lt. Colonel Danny Wright, that Drago be demoted for his repeated performance deficiencies, for the problems noted during his Powertrac presentation the previous day, and for failing to meet with Frey as requested, instead disappearing from the command following the presentation. Frey stated that Drago had "failed to demonstrate the basic leadership abilities required of a Captain within the Broward Sheriff's Office" and that he was immediately relieving Drago of his command and replacing him with another captain. (R.2-56, Ex. 9.)
Later, on the same day, Wright was successful in contacting Drago by telephone. Wright informed Drago that Wright and others at BSO were concerned because they had not heard from Drago since he left the Powertrac presentation the previous day. During that conversation, Drago said that he needed time off from work and was requesting leave; he did not indicate the anticipated length of his absence. After his conversation with Wright, Drago requested an FMLA application from BSO's Human Resources department.
On October 3, 2001, Drago returned to work unannounced. He brought with him a completed FMLA application (signed by his treating psychologist) but no Return to Work Authorization form. Frey and Wright met with Drago and told Drago that they were upset with him for leaving the command without notifying anyone. They threatened to terminate him if he went out on leave again without notice. They also told him that, to officially return from leave, he should have a Return to Work Authorization form signed by the psychologist.
After obtaining the psychologist's signature on the Return to Work Authorization form, Drago returned to work on October 8, 2001. That day, he was reinstated to the position he held prior to his FMLA leave, with no change in rank, pay, or benefits. Drago's request for FMLA leave was retroactively approved on October 11, 2001. Drago was paid for every day of the leave.
On October 8, 2001, the same day he officially returned to work, Drago filed an internal complaint with BSO's Equal Employment Opportunity (EEO) department, on which he checked "age discrimination" and "harassment" as the reasons for the complaint. The EEO complaint stated that Frey was hostile toward Drago and demeaned him, but it did not include any explanation of why Drago believed that treatment was related to Drago's age or how BSO had interfered with Drago's FMLA rights. In November 2001, EEO concluded that Drago's complaint was not meritorious.
By Drago's own account, after he returned from FMLA leave, he continued to receive criticisms of his performance similar to those he had received before the leave. In November 2001, he applied for a position with the Kissimmee Police Department. He was told by his superiors in BSO that he would not be demoted during the pendency of his application with the Kissimmee department but that, if he did not receive the position with Kissimmee, he would be demoted to lieutenant.
Drago did not receive the position with the Kissimmee department and, in January 2002, he was demoted to the rank of lieutenant within BSO. After the January 2002 demotion, Drago did not experience any other change to his rank, title or pay.
In July 2003, Drago filed this lawsuit against the Broward County Sheriff's Office and Sheriff Ken Jenne, in his official capacity, seeking to recover damages from BSO for interference with his FMLA rights and retaliation for exercising his rights under the FMLA, the ADEA and the FCRA. The district court granted summary judgment to BSO. Drago then moved, pursuant to Federal Rule of Civil Procedure 59(e), to alter or amend the judgment. The district court denied the motion. Drago's appeal challenges both the summary judgment for BSO and the denial of his Rule 59(e) motion.
Drago contends that the district court erred in finding that there were no genuine issues of material fact to support his claims that BSO interfered with his rights under the FMLA or retaliated against him for exercising his FMLA, ADEA and FCRA rights. Specifically, Drago takes issue with the district court's findings that he received all the benefits that the FMLA guaranteed him and that he had not shown that his demotion was causally connected to any protected conduct. Drago also contends that the district court erred in denying his Rule 59(e) motion, which motion sought reconsideration of the district court's summary judgment.
BSO contends that the district court correctly granted summary judgment on all of Drago's claims and that it did not abuse its discretion in denying Drago's Rule 59 motion.
Review of an order granting summary judgment is de novo. We apply the same legal standards that bound the district court, "viewing all facts and reasonable inferences in the light most favorable to the nonmoving party." See Strickland v. Water Works and Sewer Bd. of the City of Birmingham, 239 F.3d 1199, 1203 (11th Cir.2001). Summary judgment is appropriate when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).
The decision to alter or amend a judgment is committed to the sound discretion of the district court. Lockard v. Equifax, Inc., 163 F.3d 1259, 1267 (11th Cir.1998) (citing O'Neal v. Kennamer, 958 F.2d 1044, 1047 (11th Cir.1992)). Therefore, this court reviews the denial of a Rule 59 motion for an abuse of discretion. Id.
Strickland, 239 F.3d at 1206. To state a FMLA interference claim, a plaintiff must demonstrate that h...
To continue reading
Request your trial
-
McNorton v. Georgia Dept. of Transp.
...between the protected activity and the subsequent adverse employment action does not suffice to show causation." Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir.2006); Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1232 (11th Cir.2006) (no causal connection when supervisor i......
-
Hicks v. City of Tuscaloosa
...with FMLA leave, a plaintiff must demonstrate that she was entitled to a benefit under the FMLA, which was denied. Drago v. Jenne, 453 F.3d 1301, 1306 (11th Cir. 2006); 29 U.S.C. § 2615(a)(1) (prohibiting any employer from "interfer[ing] with, restrain[ing] or deny[ing] the exercise of or t......
-
Willmore-Cochran v. Wal-Mart Assocs., Inc.
...demonstrate by a preponderance of the evidence that she was entitled to a benefit that was denied by the employer. Drago v. Jenne, 453 F.3d 1301, 1306 (11th Cir.2006); O'Connor v. PCA Family Health Plan, Inc., 200 F.3d 1349, 1353–54 (11th Cir.2000); King v. Preferred Technical Group, 166 F.......
-
Rollins v. Alabama Cmty. Coll. Sys.
...(11th Cir.2009) (no causal connection where adverse employment action occurred before protected activity); see also Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir.2006) (“[I]n a retaliation case, when an employer contemplates an adverse employment action before an employee engages in protect......
-
Family and Medical Leave Act
...for a retaliation claim where the employer contemplated a demotion before the employee’s exercise of protected rights. Drago v. Jenne, 453 F.3d 1301 (11th Cir. 2006). Compare Stephenson v. Nokia, Inc., 2008 U.S. Dist. LEXIS 36574 (N.D. Tex. 2008) (temporal proximity of 3 days meets causatio......
-
Table of cases
...Dozier v. Texas Employment Comm’n , 41 S.W.3d 304, 310-11 (Tex. App.—Houston [14th Dist.] 2001, no pet.), §1:6.C.2 Drago v. Jenne, 453 F.3d 1301 (11th Cir. 2006), §25:7 Drake v. Wilson N. Jones Medical Center , 259 S.W.3d 386 (Tex. App.—Dallas 2008, pet. denied), §3:5.B.3 Draper v. United S......
-
Family and Medical Leave Act
...for a retaliation claim where the employer contemplated a demotion before the employee’s exercise of protected rights. Drago v. Jenne, 453 F.3d 1301 (11th Cir. 2006). Compare Stephenson v. Nokia, Inc., 2008 U.S. Dist. LEXIS 36574 (N.D. Tex. 2008) (temporal proximity of 3 days meets causatio......
-
Table of cases
...Dozier v. Texas Employment Comm’n , 41 S.W.3d 304, 310-11 (Tex. App.—Houston [14th Dist.] 2001, no pet.), §1:6.C.2 Drago v. Jenne, 453 F.3d 1301 (11th Cir. 2006), §25:7 Drake v. Wilson N. Jones Medical Center , 259 S.W.3d 386 (Tex. App.—Dallas 2008, pet. denied), §3:5.B.3 Draper v. United S......