Keller v. City of Tallahassee

• Decision Date: 23 November 2015
• Docket Number: Case No. 4:14cv590-MW/CAS
• Parties: Frank Keller, Plaintiff, v. City of Tallahassee, et al., Defendants.
• Court: U.S. District Court — Northern District of Florida

181 F.Supp.3d 934

Frank Keller, Plaintiff,

v.City of Tallahassee, et al., Defendants.

Case No. 4:14cv590-MW/CAS

United States District Court, N.D. Florida, Tallahassee Division .

Signed November 23, 2015

James Garrity, Marie A. Mattox, Marie A. Mattox PA, Tallahassee, FL, for Plaintiff.

Hetal Harshad Desai, Michael Patrick Spellman, Todd Cameron Hunter, Jr., Sniffen & Spellman PA, Tallahassee, FL, Ginger Barry Boyd, Lacey Delori Corona, Broad & Cassel, Destin, FL, for Defendants.

ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Mark E. Walker, United States District Judge

If you resign from public employment in order to avoid the stigma of being fired but your government employer subsequently reports you as having been fired anyway, do you have any recourse under federal law? Under the circumstances of this case—really, under the circumstances of this case as presented in admissible form in the record—the answer is "no."

Frank Keller was hired by the Tallahassee Police Department ("TPD") in October of 2013. Keller had rocky relationships with two of his training officers, Mark Lewis and Darrell Begault, and aired many of his gripes with them in two purportedly anonymous critiques that he submitted as part of his training. The critiques contained allegations that Lewis and Begault had lied about certain incidents in daily observation reports ("DORs") submitted in connection with their training of Keller. The lieutenant in charge of the training program, Steve Outlaw, determined that it was Keller who had written the critiques and asked Keller to prepare a document setting out in more detail Lewis's and Begault's alleged misrepresentations. Keller then proceeded to struggle in the later stages of the training program—struggles that Keller claims were due to retaliatory actions on the part of Lewis and others—leading Outlaw to make the decision to remove him from the program and recommend his termination to the Chief of the TPD, Michael DeLeo. Keller retained the services of Stephanie Webster, a lawyer with the Police Benevolent Association ("PBA"), and met with Chief DeLeo twice in an effort to convince DeLeo not to terminate him. Keller eventually resigned on May 9, 2014, believing that his resignation would be better for his future career prospects than termination.

In his Second Amended Complaint, ECF No. 38, Keller brings claims against the City of Tallahassee ("City"), Chief DeLeo in his individual and supervisory capacities, Lt. Outlaw in his individual and supervisory capacities, and Officer Lewis in his individual capacity. In Count I, Keller alleges that the City retaliated against him for reporting various violations of rules and regulations, thus violating Florida's whistleblower statutes. In Counts II and III, Keller alleges that Defendants retaliated against him for engaging in speech protected by the First Amendment. In Counts IV and V, Keller alleges that Defendants violated his due process rights by denying him a name clearing hearing and abusing their power. Defendants moved for summary judgment on all counts, ECF No. 54, and Keller filed a memorandum in opposition, ECF No. 60. For the reasons set forth below, Defendants' motion is granted as to Counts II, III, IV, and V of the Second Amended Complaint. This Court declines to exercise supplemental jurisdiction over the remaining state-law claim (Count I), and so Keller's Second Amended Complaint is dismissed without prejudice as to that claim.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is "genuine" if the record is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). "Material" facts are those that might affect the outcome of the case under the governing substantive law. Id.

While this Court must review the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor, Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), "[i]nferences based upon speculation are not reasonable," Solliday v. Fed. Officers , 413 Fed.Appx. 206, 207 (11th Cir. 2011). Failure by the nonmoving party to prove an essential element of its case, for which it has the burden of proof at trial, entitles the moving party to summary judgment. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

FACTUAL BACKGROUND¹

Frank Keller was hired by TPD as a recruit officer in late October of 2013. ECF No. 57-1, at 36. He began the field training portion of his training in January of 2014. ECF No. 51-13, at 8. The field training program at TPD consists of four phases. During Phase 1, a recruit officer is paired with a field training officer ("FTO") and "spend[s] four weeks learning basics of the job as well as skills that are considered necessary because of the exposure to potential danger and/or liability." ECF No. 51-14, at 14. In phases 2 and 3, each of which lasts four weeks, the recruit officer is paired with different FTOs and is "introduced to progressively more difficult and advanced tasks." Id. Phase 4 lasts only two weeks and requires the recruit to take the lead—the FTO wears civilian clothing and "will not take any action [unless] necessary to avoid liability, injury or violation of policy." Id. at 15. Throughout training, the FTO documents the recruit officer's performance each day in a daily observation report ("DOR"), which includes numerical ratings in a number of categories. ECF No. 51-14, at 21.

Keller's FTO during Phase 1 was Officer Mark Lewis. ECF No. 51-13, at 1–2 ¶ 4. It was not a happy relationship; still, Keller was passed on to Phase 2, where he was paired with FTO Darrell Begault. ECF No. 51-15, at 1 ¶ 3. Keller and Begault had a less unhappy relationship, though Keller felt that Begault was lazy and unprofessional. ECF No. 57-1, at 122–23. Keller moved on to Phase 3 in early March of 2014. ECF No. 51-15, at 1 ¶ 3.

Keller had a better experience in Phase 3 with FTO Michele Yown. Keller felt she was an improvement over Lewis and Begault and had few problems with her. ECF No. 57-1, at 117–18. When Yown was out one day during Phase 3, Keller was assigned to FTO Jordan Larremore. Id. at 131. Larremore told Keller that he had heard that Keller was lazy, which naturally upset Keller. Id. Keller persisted in trying to learn more from Larremore about his reputation among the training officers, which prompted a meeting with Sersgeant Tina Haddon, Larremore, and FTO Yown. Id. at 131–32. During that meeting, Haddon told Keller that Lewis had been saying negative things about him: that he was lazy; that he didn't have a good work ethic; and that he wasn't fighting for a job. Id. at 129. Keller shared some of his gripes about Lewis and discussed in more general terms his concerns about his reputation. Id. at 129; ECF No. 51-17, at 71. Keller also alleged for the first time that "Lewis was not completely truthful" on the DORs during Phase 1. ECF No. 51-1, at 2.

Keller continued in Phase 3 with Larremore as his FTO. ECF No. 57-1, at 112. On April 3, 2014, just before the end of Phase 3, Keller and Haddon had a long conversation in which Keller again voiced his concerns about Lewis and the training program in general. Id. at 62–63; ECF No. 51-17, at 4–5 ¶ 9. Haddon learned during this meeting (or the next day) that Keller had not completed the required critiques—evaluations of the training program, including evaluations of the FTOs—for Phases 1 and 2 and made him fill out these critiques. ECF No. 57-1, at 63–64; ECF No. 51-17, at 5 ¶ 12. The critiques were supposed to be anonymous and, according to Keller, were not supposed to even be looked at by higher-ups until the end of the training program. ECF No. 57-1, at 88–89. Keller included in his critiques allegations that Lewis and Begault had included false information on DORs. ECF No. 51-14, at 37–40. Keller then moved on to Phase 4, where he was once again paired with Lewis. Id. at 1–2 ¶ 4.

On April 8, Lt. Outlaw received the critiques and deduced that they were written by Keller. Id. at 4 ¶ 13. Two days later, Outlaw met with Keller and Sergeant Melissa Yown,² who was Keller's field training sergeant in Phase 4. ECF No. 57-1, at 136–37; ECF No. 51-16, at 1 ¶ 2. Outlaw informed Keller that he was going to switch his FTO from Lewis to Officer Beth Bascom based on the critiques. ECF No. 57-1, at 136–37. Outlaw also told Keller that he needed to look into the allegations contained in the critiques, and that he would contact Keller. Id. at 137. Following the meeting, Outlaw shared "the substance of [Keller's] allegations with" various higher-ups, including Chief DeLeo. ECF No. 51-14, ¶ 15.

Keller did not hear from Outlaw for a few days, prompting him to contact Outlaw and set up a meeting. ECF No. 57-1, at 160–61. On April 16, Keller met with Outlaw. Keller first brought up the topic of changing squads; Outlaw rejected this suggestion. Id. at 167–68. Keller then brought up the critiques. According to Keller, Outlaw responded as follows:

"He said, ‘You need to really re-evaluate what you're stating here, Officer Keller. Officers can lose their certifications. That is an important FDLE document.’ " ... And I told him it seemed intimidating to me to say, ‘Well, I'll re-evaluate it.’ "

Id. at 169. Outlaw eventually accepted that Keller was "sticking to his story" and asked him to prepare a pair of documents—"rebuttals"—detailing Lewis's and Begault's lies in greater detail. Id. at 170. Following the meeting, Keller prepared the rebuttals. Id. at 178–79. He did not send them to Outlaw, but rather e-mailed them to himself in addition to saving a copy on his laptop. Id. at 179.

The following day, Keller was "reph...