Johnston v. Borders
| Decision Date | 09 June 2022 |
| Docket Number | 18-14808, No. 19-13269 |
| Parties | Jacquelyn JOHNSTON, Plaintiff-Appellee, v. Gary S. BORDERS, individually and in his official capacity as Sheriff of Lake County, Florida, Jennifer Ferguson, Defendants-Appellants. Jacquelyn Johnston, Plaintiff-Appellee-Cross Appellant v. Gary S. Borders, individually and in his official capacity as Sheriff of Lake County, Florida, Jennifer Ferguson, Defendants-Appellants-Cross Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Jason Gordon, Law Offices of Jason Gordon, PA, Hollywood, FL, Angelena M. Conant, Angelena M. Root, PA, Ft. Lauderdale, FL, for Plaintiff-Appellee.
Brian Koji, Allen Norton & Blue, PA, Tampa, FL, Mark E. Levitt, Marc Aaron Sugerman, Matthew Christian Neff, Allen Norton & Blue, PA, Winter Park, FL, for Defendants-Appellants.
Brian Koji, Allen Norton & Blue, PA, Tampa, FL, for Defendant-Appellant Lake County Sheriff's Office.
Before Jordan, Newsom, and Tjoflat, Circuit Judges.
These appeals involve two conceptually different causes of action against separate defendants. These claims were pled together and tried to a jury empaneled for each claim. In one claim, the plaintiff, an at-will employee of a sheriff's office, sued the sheriff, alleging that he made false and stigmatizing statements in terminating her employment that deprived her of a liberty interest in her reputation without affording her a post-termination hearing to clear her name in violation of the Due Process Clause of the Fourteenth Amendment. In the other claim, the plaintiff alleged that a sheriff's office co-employee, whom she supervised, defamed her in violation of state tort law. The jury found for the plaintiff on both claims.
The defendants appeal the judgments entered pursuant to the jury's verdicts in No. 18-14808. In No. 19-13269, the sheriff appeals the judgment awarding the plaintiff an attorney's fee on the claim brought against him. Having considered the parties’ briefs and with the benefit of oral argument, we affirm the judgments in No. 18-14808 and vacate and remand for further proceedings the judgment for attorney's fee in No. 19-13269.
In October 2014, Gary S. Borders, Sheriff of Lake County, Florida (the "Sheriff"), took control of the Lake County Animal Shelter from the Board of County Commissioners amidst public outcry over high euthanasia rates.1 The Sheriff intended eventually to run the shelter as a "no-kill" or "low-kill" shelter. The terms are interchangeable, but "no-kill" is a misnomer—it simply refers to any shelter that maintains a euthanasia rate of no more than 10 percent for at least a year. The Sheriff's plan to achieve "no-kill" status was simple: the shelter would not euthanize animals merely to create space for other animals.
On October 1, 2014, the Sheriff hired Jacquelyn Johnston as Director of Animal Services. Before being hired, she was interviewed by the Sheriff and Major Wayne Longo—who oversaw the animal services division of the Sheriff's Office. Both Major Longo and the Sheriff told Johnston that the shelter's euthanasia practices had been under "public scrutiny" and that the goal was to reduce euthanasia rates. The Sheriff also told Johnston that he "wanted to make sure that all adoptable pets had the opportunity to be adopted," and that he "was interested in moving toward no-kill." At the same time, the Sheriff let Johnston know that he "understood that there would still be issues regarding public safety in cases of dangerous [ ] or aggressive dogs ... [or animals] that came in very injured or ill."
On her first day of work, Johnston met with her immediate supervisors—Major Longo and Captain Todd Luce—who told her to review the governing policies that the Sheriff's Office had inherited from Lake County. Among the policies Johnston reviewed was one governing when animals would be eligible for euthanasia. The gist was that euthanasia was permitted only for animals that were not adoptable, and animals would generally be considered adoptable unless they were dangerous, sick, or injured. Even for unadoptable animals, euthanasia was not permitted unless alternatives—such as returning the animal to its owner or transferring the animal to a rescue facility—would be unavailable.
Major Longo and Captain Luce also introduced Johnston to Jennifer Ferguson, who would be Johnston's immediate supervisee. Because Ferguson had been working at the shelter for five months and was acting interim director before Johnston was hired, Major Longo and Captain Luce told Johnston that she would be a useful resource in learning shelter policies and practices.
After a staff meeting on October 9, 2014, Ferguson told Johnston that the shelter had received two dogs that were being kept outside because there was no room for them in the shelter. Johnston asked Ferguson whether she had contacted any rescue facilities or foster homes to house the dogs, and Ferguson replied that she had, but that they were "all full."
Johnston then did a "walkthrough" of the shelter to see whether she could find space for the dogs. The shelter was divided into two areas—the "adoption area," which was open to the public, and the "isolation area," which was not. An animal's location in either the adoption or isolation areas did not indicate whether the animal was fit for adoption. Each animal had a "kennel card" with information about the animal, and Johnston noticed "about 10 to 15 kennel cards" in the adoption area indicating that the animals had either "bitten or attacked another animal [ ] or had other behavior notes." In the isolation area, by contrast, Johnston observed only one dog that had behavioral notes on its kennel card; otherwise, the isolation area contained several "friendly and young dogs." Johnston judged that the 10 or 15 dogs in the adoption area with kennel cards indicating aggression were unadoptable under the governing policy.
Johnston asked Ferguson how she ordinarily dealt with such situations, and Ferguson replied that she would usually euthanize the animals in the isolation area. Because Johnston thought euthanizing the animals in the isolation area would be contrary to shelter policy, she ordered Ferguson to "re-evaluate the dogs that were [i]n the adoption [area] since, according to [Sheriff's Office] policies and according to the notes on the kennel card[s], many of those dogs were not adoptable[.]"
Johnston left work around noon that day to attend evening classes in Miami.2 Before she left, she told Ferguson to use Facebook to connect with rescue facilities and to try to "get some pets placed that way." And while she "understood that there were some unadoptable animals that were going to have to be euthanized," she admonished Ferguson to "follow our policies as written ... and to euthanize no more than necessary." Johnston did not tell Ferguson how many animals to euthanize or which animals to euthanize.
After Johnston left for Miami, Ferguson selected 23 or 24 animals for euthanization. Diane Hagan and Melanie Hollis, two euthanasia techs at the shelter, then proceeded to euthanize 20 of the animals but spared the rest because they saw no legitimate reason to euthanize them.
Hagan filled out a euthanasia log listing the reason why each animal was euthanized. She recorded that six animals were euthanized for "no space," 10 for aggression toward other animals, two for illness or injury, and two for a combination of space and health issues. Five of the notations of "no space" were written over whiteout. Hagan testified she had originally written "behavior" as the reason for those five and that she did not remember changing them to "no space."
Later that day, Ferguson had a conversation with a shelter volunteer named Whitney Boylston. She told Boylston that she had been "directed to pull or euthanize any number of animals that had been [at the shelter] over a certain amount of time." Boylston asked her why she obeyed the direction, and Ferguson replied that she feared she would lose her job if she went outside her chain of command.
The next day, Johnston received a phone call from Major Longo asking her to report to the shelter. Major Longo told Johnston that "people were complaining" that adoptable pets had been euthanized and that "the sheriff wasn't happy and somebody was going to have to answer for what happened." Johnston indicated she was willing to "review each animal case by case and do a full investigation." But Major Longo told her she "was not going to be allowed to investigate, [ ] was not going to be allowed to review any records, [and] [ ] was not going to be allowed to talk to any of the[ ] [animal-rights] advocates or investigate what happened." Major Longo then told Johnston she was fired.
Later that evening, the Sheriff's Office issued the following press release with the Sheriff's approval:
On October 14, 2014, Johnston's attorney, Angelena Root, sent a letter to the Sheriff's Office requesting "a meeting to discuss a resolution of the current situation." The letter called the October 10 press release a "wholly fabricated version of events" which "wrongfully and publicly vilified" Johnston. In fact, it was Ferguson...
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