Macuba v. Deboer

Decision Date29 October 1999
Docket NumberNo. 98-2651,98-2651
Citation193 F.3d 1316
Parties(11th Cir. 1999) Joseph MACUBA, Plaintiff-Appellee, v. Matthew DEBOER, Michael Youseff, Charlotte Commissioners, individually and in their official capacities, Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Appeal from the United States District Court for the Middle District of Florida. (No. 96-63-CIV-FTM-17D), Richard A. Lazara, Judge.

Before TJOFLAT and BIRCH, Circuit Judges, and BRIGHT*, Senior Circuit Judge.

TJOFLAT, Circuit Judge:

Appellee Joseph Macuba brought this 42 U.S.C. 1983 (1994) action for money damages against the County of Charlotte, Florida, and two members of its Board of Commissioners, appellants Matthew DeBoer and Michael Youseff, for infringement of his First Amendment rights. Macuba sought relief against the two Commissioners in both their official and individual capacities. Macuba alleges that the defendants abolished his position with the county (by reorganizing four of its administrative departments) and denied him employment in another position because of his whistle-blowing activities and frequent contact with the press. Following some discovery, DeBoer and Youseff moved for summary judgment on Macuba's claim against them in their individual capacities; they contended that they were immune from suit under the doctrines of absolute and qualified immunity. The district court denied their motion, and they brought this interlocutory appeal. We reverse.


Joseph Macuba was, until 1995, employed as a License Investigator in Charlotte County's Building Department. Part of his job was to investigate complaints against builders and the failure of his co-workers to enforce county building codes. In October 1992, the County received a complaint from a couple named Sam and Harriot Cimaroli alleging that the builder of their home had violated various building codes. Jeffrey DeBoer, the Building Director (and head of the department), reviewed the complaint and asked Macuba to investigate. Macuba concluded that the builder had failed to comply with several code provisions and recommended that the builder be disciplined by the "Construction Industry Licensing Board." Without obtaining DeBoer's permission, Macuba leaked the results of his investigation to the media, including Hugo Spatz (an editor of a "local concerned citizens newspaper publication"), who had often been critical of the county administration. The media, in turn, questioned DeBoer about the situation.

This was not the first time that an investigation conducted by Macuba resulted in inquiries from the media. Jeffrey DeBoer found these inquiries unpleasant, and he made his feelings known to Macuba. DeBoer knew that Macuba had frequent contacts with members of the press, and at some point he told Macuba that Macuba either cut back on his contacts with the media or look for another job. Macuba reported DeBoer's threat to Tom Frame, then the County Administrator. In addition, he complained to Frame about DeBoer's overall handling of the department.

In July 1993, Frame fired Jeffrey DeBoer. In 1994, Jeffrey's brother, appellant Matthew DeBoer, ran for one of the vacancies on the five-member Charlotte County Board of Commissioners; he was elected in November. Prior to his election, Matthew sent an anonymous letter criticizing Macuba to the Board of Commissioners.1

Appellant Michael Youseff was elected to the Board of County Commissioners in November 1992; he served one term, until 1996. Soon after his election, if not beforehand, Youseff developed a dislike for Hugo Spatz, who, in reporting on the local government, treated the county administration unfairly (in Youseff's opinion). In late 1994 or early 1995,2 Youseff asked Spatz where he was obtaining the information for his stories. Spatz revealed that Macuba was one of his principle sources. In February 1995, Youseff wrote the county attorney that Macuba was responsible for some of Spatz's criticism of the county government.

In March 1995, the Board of Commissioners appointed Jan Winters County Administrator, to replace Tom Frame, who had resigned. Shortly after his appointment, Winters reviewed the County's four land use departments: planning, zoning, building, and land development. All four were administered separately, but they had some overlapping functions. Winters proposed that the four departments be consolidated into one department, the Community Development Department ("CDD"); this would save resources and provide owners and contractors with "one-stop" shopping for permit applications. Winters presented his proposal to the Board of Commissioners at a June 1995 meeting of the Board. The Board, with DeBoer and Youseff voting, approved the proposal by a vote of 5-0. At the same meeting, Winters announced that he had chosen Max Forgey to head the CDD, and he asked the Board to endorse his decision. The Board did so with a vote of 5-0.

Winters and Forgey thereafter began working on the reorganization, eliminating certain positions and creating others. Among other changes, they eliminated the Building Department's three license-inspector positions, including Macuba's. A letter from the County's personnel department informed Macuba that his position had been eliminated, but that he could apply for a position in the new department.

In September 1995, at a meeting of the Board of Commissioners, Winters briefed the Board on the status of the reorganization. Among the positions being created in the new CDD were a Code Compliance Supervisor position and five Code Compliance Officer positions. Macuba applied for both positions.

Winters delegated the responsibility for filling all of the open positions in the CDD to Forgey. Forgey then delegated the responsibility of interviewing and recommending applicants for Code Compliance Supervisor and Code Compliance Officer to two subordinates, Socrates Shinas and John Bennett. They interviewed Macuba but did not recommend him for the Supervisor position. Out of seven applicants for the five Officer positions, Bennett ranked Macuba fourth (which meant that he was qualified for the position) and Shinas ranked him seventh (which meant that he was not). To settle the question whether Macuba was one of the two least qualified applicants, Forgey asked Jock Robertson, then Acting Planning Director for the County, to make an independent evaluation of all applicants and determine the two least qualified for the Officer positions. Robertson was instructed to classify each applicant as "Very Well Qualified," "Qualified," "Marginal," or "Not Qualified." He rated Macuba "Not Qualified" and placed him at the bottom of the list. Based on the recommendations of Shinas, Bennett, and Robertson, Forgey did not offer Macuba a position as either Supervisor or Officer.

In December 1995, at a meeting of the Board of Commissioners, Winters presented the Board with a final draft of the CDD organizational structure for approval. The Board approved the draft by a vote of 5-0 (including appellants' votes). Winters, ratifying the choices made by Forgey, subsequently filled the positions created by the plan.

Macuba thereafter brought this suit. Macuba's complaint alleges that the county and appellants DeBoer and Youseff abolished his position as a License Investigator in the Building Department and denied him employment in the CDD, as either Code Compliance Supervisor or Code Compliance Officer, because of his whistle-blowing activity and his communication with the media. The defendants' conduct, the complaint asserts, infringed Macuba's rights under the First and Fourteenth Amendments and rendered the defendants amenable to suit under 42 U.S.C. 1983 (1994).3 Macuba's complaint also alleged that the defendants were amenable to suit under the Florida Whistle-blower's Act, Fla. Stat. Ann. 112.3187 (West 1992).4

In their answers, the defendants denied liability. Responding to Macuba's claims in their individual capacities, DeBoer and Youseff interposed the affirmative defenses of absolute immunity (at all times they were acting as legislators) and qualified immunity (their conduct did not violate a clearly established principle of First Amendment law). DeBoer and Youseff moved for summary judgment on the basis of those affirmative defenses.5

In passing on their motion, the district court considered and rejected the qualified immunity defense, concluding that the evidence, viewed in the light most favorable to Macuba, established conduct violative of the First Amendment.6 In its dispositive order denying the motion, the court did not address the defense of absolute immunity, even though the defendants' motion relied in part on that defense. Nonetheless for purposes of this appeal, we consider the court to have rejected the defense.

DeBoer and Youseff now appeal the district court's denial of their motion for summary judgment. They contend that the court should have granted them both absolute and qualified immunity.


We have jurisdiction to consider this interlocutory appeal. See Ellis v. Coffee County Bd. of Registrars, 981 F.2d 1185, 1189 (11th Cir.1993) ("[D]enial of a claim of absolute immunity is an immediately appealable interlocutory order."); Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985) ("[A] district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable 'final decision.' "). Our review is de novo, and we take the case in the light most favorable to the plaintiff. See Cottrell v. Caldwell, 85 F.3d 1480, 1486 & n. 3 (11th Cir.1996). Our initial task is to determine whether DeBoer or Youseff retaliated against Macuba because he exercised a First Amendment right. If either defendant did so while acting in a legislative capacity as a member of the Board of Commissioners, he is entitled to absolute immunity from suit. See Lake Country Estates, Inc. v. Tahoe Reg'l Planning...

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