Johnston v. Borders, 17-10642
| Decision Date | 09 February 2018 |
| Docket Number | No. 17-10642,17-10642 |
| Parties | JACQUELYN JOHNSTON, Plaintiff-Appellant, v. GARY S. BORDERS, individually and in his official capacity as Sheriff of Lake County, Florida, JENNIFER FERGUSON, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[DO NOT PUBLISH]
Non-Argument Calendar
D.C. Docket No. 6:15-cv-00936-PGB-DCI
Appeal from the United States District Court for the Middle District of Florida
Before ED CARNES, Chief Judge, WILSON, and JORDAN, Circuit Judges.
Jacquelyn Johnston appeals the district court's grant of summary judgment in favor of Sheriff Gary Borders. Because this is an appeal from summary judgment, we recount the evidence below in the light most favorable to Johnston, the non-movant. See Buxton v. Plant City, 871 F.2d 1037, 1040 (11th Cir. 1989).
In August 2014, Lake County decided to transfer control of its Animal Services Shelter to the Lake County Sheriff's Office. Johnston was hired as Director of the Sherriff's Office Animal Services Division, which runs the Shelter.
On her first day, Johnston reported to Major Wayne Longo. Longo gave Johnston "stacks of paperwork," including a copy of Shelter policies, and told her to review those policies over the coming weeks with an eye toward reducing euthanasia rates. Longo told Johnston to take her time learning Shelter policies and to defer questions to Jennifer Ferguson, the kennel supervisor, who was familiar with those policies. Longo mentioned that Ferguson might be unreceptive toward Johnston because Ferguson had wanted the Director position.
About one week later, Ferguson informed Johnston that the Shelter was at capacity. She told Johnston that two dogs were waiting outside in dangerously hot conditions and could not be admitted until space was made. Johnston asked Ferguson whether she had reached out to rescue organizations, volunteers, and fosters for animal placement, in keeping with an informal protocol that the Sheltercalled the "last chance warning." Ferguson said that she had, but none had space. Johnston instructed Ferguson to follow protocol and proceed as she would have prior to Johnston's arrival. Johnston told Ferguson that if euthanasia was necessary, she should document the reason why each animal was euthanized.
Ferguson ordered twenty animals to be euthanized that day. Ferguson initially chose the animals with the help of Diane Hagan, a euthanasia technician. Hagan testified that she "was under the impression we were going to pull animals that were sick, had behavior issues or had been there for a length of time." Halfway through the selection process, however, Ferguson began to choose dogs on her own. Hagan testified that Ferguson appeared angry and snatched kennel cards from cages seemingly at random, dooming those dogs to die.
Ferguson and Hagan euthanized the chosen animals with the help of Melanie Hollis, another euthanasia technician. At one point, Hollis protested euthanizing a dog named Harry. "No, you can't take that dog," Hollis exclaimed. "It's one of the volunteers' favorites, and it has $300 worth of donations towards its heartworm treatment." Ferguson replied "I don't give a shit," knelt beside Harry, and held him still while Hagan euthanized him.
Ferguson eventually left the room, leaving the remaining live animals for Hagan and Hollis. By that time, Hollis was in tears. Hagan and Hollis refused to euthanize three dogs that Ferguson had selected. Hagan testified that they"couldn't bring [them]selves to euthanize a six-month old puppy," an eight-month old puppy, and another "nice dog" who was in fine health.
Public outrage ensued. The Sheriff's Office received emails, phone calls, and Facebook messages complaining about the large number of animals that were euthanized. One commentator said that "[n]o rescues were notified [and] no posts online gave a last chance warning."
The next day, Longo asked Johnston to meet with him and a human resources assistant. Longo presented to Johnston a list of the euthanized animals and explained that citizens were angry. According to Johnston, this was the first time she heard that any animals were euthanized. Johnston was fired that evening.
After Johnston's termination, Sheriff Borders directed the Sheriff's Office to release three press statements in response to the public outcry. On October 10, the same day Johnston was fired, the Sheriff's Office issued the following statement:
On October 10, 2014 the director of the Lake County Sheriff's Office Animal Services division was terminated from her employment. Ms. Jacquelyn Johnston was hired by the Sheriff's Office as Animal Services Director . . . on October 1, 2014. On October 9th Sheriff's Office administration became aware that several animals were euthanized under now former Director Johnston's direction and outside of the Sheriff's Office policy of utilizing euthanasia as a last resort.
The next day, the Sheriff's Office released another statement, which said that some of the euthanized animals were neither sick nor injured. A few days later, on October 13, the Sheriff's Office released a third, more damning statement:
Johnston was terminated after [the Sheriff's Office] learned that 147 animals were euthanized during her time as Director, including two (2) cats and eighteen (18) dogs in one day. All but six of those animals were put down for legitimate reasons . . . . Some of the animals were put down prematurely because the shelter was not yet at capacity even though Johnston gave the reason for euthanizing the animals as limited space. Johnston did not exhaust all the resources to save the animals and exercised bad judgment. Borders wants the shelter to be as close to a no-kill shelter as possible. Because the killings happened on Johnston's watch, it was her responsibility. Johnston made a bad call and euthanized some dogs that could have made good pets for people.
Media across the United States and London reported on the story and published Johnston's photograph. Johnston received several death threats, some of which targeted her daughter. Johnston claims that the press releases ruined her career.
Through counsel, Johnston sent a complaint letter to the Sheriff's Office denying statements made in the press releases. It explained that Johnston had instructed Ferguson to follow protocol, but that Ferguson "went completely rogue" by lying about the Shelter being at capacity and euthanizing more animals than necessary. The Sheriff's Office never directly responded to Johnston's letter, but it did release the letter without comment in response to a media request.
Johnston filed suit against Sheriff Borders, both individually and in his official capacity as Sheriff of Lake County, and Jennifer Ferguson. She asserted a 42 U.S.C. § 1983 claim against Sheriff Borders, alleging that he violated her procedural due process rights by publishing false and stigmatizing statements inconnection with her termination without giving her an opportunity to clear her name. She also alleged state law defamation claims against the defendants.
Following discovery, Sheriff Borders moved for summary judgment on Johnston's § 1983 claim. The district court found that Johnston did not seek available state court remedies before bringing suit in federal court. Citing McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994), the court noted that employees can petition Florida courts for certiorari to review employment termination cases and remedy due process violations. Because Johnston failed to pursue that remedy, the court dismissed Johnston's § 1983 claim and declined to exercise supplemental jurisdiction over her state law claims. This is Johnston's appeal.1
We review de novo the district court's grant of summary judgment. Byars v. Coca-Cola Co., 517 F.3d 1256, 1263 (11th Cir. 2008). Summary judgment is appropriate when no genuine dispute of material fact exists and the movant is entitled to judgment as a matter of law. Buxton, 871 F.2d at 1040.
Johnston's § 1983 claim alleges a liberty interest deprivation. That claim is actionable if: (1) Sheriff Borders deprived Johnston of a liberty interest; and (2) adequate state remedies were not available to cure the deprivation. Zinermon v. Burch, 494 U.S. 113, 125-26, 110 S. Ct. 975, 983 (1990).
Due process requires public employers who publish stigmatizing information about an employee "to provide the opportunity for a post-termination name-clearing hearing" and to give "[n]otice of the right to such a hearing." Buxton, 871 F.2d at 1042-43. To establish that Sheriff Borders deprived her of a liberty interest, Johnston must prove: "(1) a false statement (2) of a stigmatizing nature (3) attending [her] discharge (4) made public (5) by [her] government employer (6) without a meaningful opportunity for employee name clearing." Id. The parties dispute whether the press releases were false and stigmatizing and whether Johnston had a meaningful opportunity to clear her name.
Construing the evidence in Johnston's favor, id. at 1040, several statements in the press releases are false and are stigmatizing. The first press release states that "several animals were euthanized under now former Director Johnston's direction and outside of the Sheriff's Office policy of utilizing euthanasia as a last resort." By contrast, Johnston and Hagan testified that Ferguson directed the animals to be euthanized and that the Sheriff's Office had no formal policy against euthanasia. The third press release states that "[s]ome of the animals were put down prematurely because the shelter was not yet at capacity even though Johnston gave the reason for euthanizing the animals as limited space." Yet Johnston and Hagan testified that Ferguson, not Johnston, "gave the reason foreuthanizing the animals as limited space." And there is no doubt that the press releases were stigmatizing. The third press release said "Johnston made a bad call and euthanized some dogs that could have made good pets for people."...
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