Robert Sharman, Jr. v. City of Tallahassee, et al.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 20-1 0063
Non-Argument Calendar
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D.C. Docket No. 4:18-cv-00231-MW-CAS
ROBERT SHARMAN, JR.,

Plaintiff-Appellant,

versus

CITY OF TALLAHASSEE,
MIKE TADROS,
Individually,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Florida
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(October 14, 2020)
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and BRASHER, Circuit
Judges.

PER CURIAM:
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Robert Sharman Jr., a former construction crew chief in the Wastewater
Treatment Division of the Underground Utilities and Public Infrastructure
Department for the City of Tallahassee, appeals the summary judgment against his
amended complaint against the City, and the Manager of the Department, Mike
Tadros. Sharman complained that the City and Tadros fired him in retaliation for
exercising his right to free speech under the First Amendment by refusing to sign
an oath of loyalty and by sending a supervisor photographs of wastewater workers
violating safety rules. 42 U.S.C. § 1983. Sharman also complained that the City
fired him in retaliation for sending the photographs in violation of the Florida
Public Employee Whistleblower Act, Fla. Stat. § 112.3187, and because of his age
in violation of the Florida Civil Rights Act, id. § 760.10(1)(a). The district court
ruled that Sharman’s complaints of retaliation failed because no “causal link
existe[d] between his termination and either his refusal to sign a loyalty oath or his
texting of workplace safety violation photos” and because “a reasonable jury could
only find that the Defendants would have terminated [him] even in the absence of
these activities.” The district court also rejected Sharman’s claim of discrimination
on the ground that “no record evidence—other than the fact that a 49-year-old
assumed [his] job functions once his position was eliminated—. . . [established]
that [the City] discriminated against [him] based on [his] age” of 54. Because
Sharman failed to prove that the legitimate business reason the City proffered for
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eliminating his position in the Division was a pretext for unlawful retaliation or
discrimination, we affirm.
The City hired Sharman in 1991, and through promotions, he eventually
served as one of two construction crew chiefs at a water reclamation station. On
July 20, 2017, the Manager of the Wastewater Treatment Division, Joseph
Cheatham, fired Sharman, his fellow crew chief Danny Brown, and two other
employees at the reclamation station. Cheatham told Sharman that the City
eliminated the positions to make the Division more efficient and cost-productive.
Troy Kinsey, a mechanic who had served more than 6 years as a pump station
foreman at the reclamation station, assumed Sharman’s and Brown’s duties.
Sharman alleged that the City and Tadros fired him, in large part, based on
two past events. The first event occurred in November 2014 when Sharman refused
to sign a written oath to act professionally and honestly as a public servant and
instead wrote on the form, “I signed at start date.” The second event occurred in
September 2015 when Sharman texted to Michael Corrigan, a safety specialist in
the human resources department, photographs taken by another city employee that
showed three wastewater workers in raw sewage at a pump station wearing hard
hats when the situation required a full scuba suit. Corrigan emailed the
photographs to his supervisor, Jennifer Hill, who forwarded the photographs to
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Tadros. Sharman alleged that testimony from himself, Corrigan, and Kinsey
concerning Tadros’s response to the photographs evidenced his retaliatory animus.
After the City and Tadros moved for summary judgment, Sharman
submitted a response to which he attached new evidence to support his complaint
of age-based discrimination. Sharman’s new evidence consisted of charges filed
with the Equal Employment and Opportunity Commission and lawsuits filed
against the City by nine City employees.
The City and Tadros moved to strike Sharman’s evidence of the employment
actions against the City and to strike certain deposition testimony concerning
Tadros. The City and Tadros sought to exclude the evidence about other
employment actions based on their belated disclosure, see Fed. R. Civ. P. 26, 37,
and on their unsworn allegations, see Gordon v. Watson, 622 F.2d 120, 123 (5th
Cir. 1980). They also sought to exclude as inadmissible hearsay the second- and
third-hand statements by Sharman, Corrigan, and Kinsey concerning Tadros’s
outrage about the photographs, his demands to unmask the photographer and the
distributor, and his desire to dismiss Sharman. See Fed. R. Evid. 801(c), 802, 805.
The district court granted the motion “to the extent it sought to strike evidence not
‘reducible to admissible form’ at trial.”
Sharman has abandoned any challenge he could have made to the adverse
evidentiary ruling. “[A]n appellant abandons a claim when he . . . raises it in a
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perfunctory manner without supporting arguments and authority.” Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 682 (11th Cir. 2014); see , e.g., Fed. R.
App. P. 28(a)(8)(A). Sharman makes a cursory argument that, “[t]o the extent the
District Court excluded any testimony . . . detailed in [his] statement of facts, . . .
all such referenced hearsay is either reduceable to admissible form, or was not
offered to prove its own truth.” Because Sharman fails to identify what hearsay
testimony is admissible or to discuss how the district court erred, we deem
abandoned any argument that Sharman might have made to use the second- and
third-hand statements that he, Corrigan, and Kinsey made about Tadros. We also
deem abandoned any argument that Sharman might have made that the district
court erred by excluding his records of other employment actions against the City.
We review a “summary judgment de novo, viewing the evidence in the light
most favorable to the non-moving party,” Sharman. Gogel v. Kia Motors Mfg. of
Ga., Inc., 967 F.3d 1121, 1134 (11th Cir. 2020) (en banc) (alteration adopted and
internal quotation marks omitted). As movants, the City and Tadros must “show[]
that there is no genuine dispute as to any material fact and [that they are] entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). Sharman cannot defeat
summary judgment with a “mere scintilla of evidence,” Gogel, 967 F.3d at 1134
(quoting Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990)), or with self-
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serving allegations not supported by personal knowledge, Stewart v. Booker T.
Washington Ins., 232 F.3d 844, 851 (11th Cir. 2000).
Sharman complained of retaliation for speech protected by the First
Amendment, 42 U.S.C. § 1983, and made as a whistleblower in public
employment in Florida, Fla. Stat. § 112.3187, and of discrimination based on his
age, id. § 760.10(1). Federal law prohibits employers from firing employees in
retaliation for engaging in speech protected by the First Amendment. Alves v. Bd.
of Regents, 804 F.3d 1149, 1159 (11th Cir. 2015). In Florida, the Whistleblower
Act prohibits a government entity from dismissing an employee to retaliate for his
disclosure of information concerning “[a]ny act or suspected act of gross
mismanagement, malfeasance, misfeasance . . . or gross neglect of duty committed
by an employee of an agency.” Fla. Stat. § 112.3187(4)(b), (5)(b). Florida law also
makes it unlawful for an employer to discharge an employee because of his age. Id.
§ 760.10(1)(a).
We apply two separate burden-shifting tests for Sharman’s complaints. With
respect to Sharman’s complaint of retaliation in violation of the First Amendment,
if Sharman establishes that his speech is protected and that his speech played a
substantial role in the decision to discharge him, the burden shifts to the City to
prove by a preponderance of the evidence that it would have made the same
employment decision absent Sharman’s protected speech. See Akins v. Fulton Cty.,
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420 F.3d 1293, 1303 (11th Cir. 2005). As to his complaints of retaliation in
violation of the Whistleblower Act and of age-based discrimination in violation of
the Florida Civil Rights Act that are based on circumstantial evidence, we apply a
version of the burden-shifting test provided in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Under that test, if Sharman establishes a prima facie case of
retaliation or discrimination, his employers are given an opportunity to offer
nonretaliatory or nondiscriminatory reasons for his termination, and then he bears
the ultimate burden of proving that the reasons proffered are pretextual. See Griffin
v. Deloach, 259 So. 3d 929, 931–32 (Fla. Dist. Ct. App. 2018) (Whistleblower
Act); Lin v. Demings, 219 So. 3d 124, 125 (Fla. Dist. Ct. App. 2017) (Florida Civil
Rights Act).
Undisputed evidence established that the City and Tadros eliminated
Sharman’s position as part of restructuring the Division to perform more
efficiently. City officers Reese Goad, Ricardo Fernandez, and Robert Wigden
testified that the City began a reorganization program in 2015 that continued
through 2017. Wigden stated that Tadros, the Manager of the Utilities and
Infrastructure Department, envisioned merging the Public Works and Utilities
Divisions, and personnel forms showed that, in July 2016, Tadros hired Lynn
Coller as the Manager of Wastewater Operations to streamline the Department.
Official records reflected that, for fiscal year 2017, the City eliminated 49
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positions, 11 of which were vacant. The idea to eliminate Sharman’s position
originated in an email that Coller sent to his supervisor, Cheatham, in May 2017
that proposed eliminating the four construction crew chiefs in the Division and “to
accomplish all maintenance functions” with two foremen to supervise and to
supplement the work of three wastewater treatment mechanics. Cheatham and
Tadros recalled that Cheatham agreed with Coller’s plan and submitted it to
Tadros, who approved the plan after confirming that the restructuring would not
affect operations at Sharman and Brown’s reclamation station.
Even if we assume that Sharman established prima facie cases of retaliation
for both acts that he identifies as speech protected by the First Amendment and of
retaliation in violation of the Whistleblower Act, he failed to prove that the reason
proffered for his termination was pretextual. The City and Tadros established that,
regardless of Sharman’s refusal to sign the employee oath and his forwarding of
photographs, his position would have been eliminated to achieve the goal of having
a more productive and cost-effective workforce. See Akins, 420 F.3d at 1303.
Sharman argues that a budget shortfall was a false excuse for his dismissal because
Wigden testified that the restructuring was not a “budgetary exercise,” but Wigden,
Goad, and Fernandez testified that City officials ordered managers to find ways to
save their departments money and the officials acknowledged that might require a
reduction in the workforce. Coller, Cheatham, and Tadros testified consistently that
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eliminating an unnecessary layer of supervision made the Division more effective
and efficient. Sharman argues that the City and Tadros used the restructuring plan
to eliminate employees they deemed troublemakers, but Sharman identifies no
evidence that the architect of the plan, Coller, knew of protected activities engaged
in by any City employee, much less of Sharman’s deeds, which preceded Coller’s
employment with the City. Sharman also argues that the restructuring was a pretext
because he was not offered an alternative position with the City, but Sharman
submitted no evidence that, when he was fired, a position was available for which
he was qualified or that he had, as required by the City layoff policy, requested an
alternative position. Sharman argues to infer pretext from the hearsay evidence of
Tadros’s outrage at the photographs, but we will not consider second- and third-
hand statements and rumors that the district court excluded and that Sharman does
not dispute is inadmissible hearsay. See Sapuppo, 739 F.3d at 682. Because no
material factual dispute exists about the reason for Sharman’s termination, the
district court did not err by entering summary judgment against his complaints of
retaliation.
Sharman also failed to prove that his termination was a pretext for
discrimination based on his age. “A reason is not pretext for discrimination unless
it is shown both that the reason was false, and that discrimination was the real
reason.” Brooks v. Cty. Comm’n of Jefferson Cty., Ala., 446 F.3d 1160, 1163 (11th
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Cir. 2006) (internal quotation marks and emphasis omitted). Sharman offered no
direct evidence that he was discriminated against based on his age. In fact, he
testified that no one who worked for the City ever commented on his age. Sharman
argues that he was dismissed because his job responsibilities were assumed by a
less qualified man, but Sharman “cannot prove pretext by simply arguing or even
by showing that he was better qualified than the person who received the position
he coveted,” id. (quoting Alexander v. Fulton Cty., 207 F.3d 1303, 1339 (11th Cir.
2000)). Sharman assumed that his age was the cause for his termination because a
list he saw reflected that most of the employees fired in 2017 were over the age of
40, but his speculation and belief are insufficient to prove pretext. See Furcron v.
Mail Centers Plus, LLC, 843 F.3d 1295, 1313 (11th Cir. 2016) (“Conclusory
allegations of discrimination, without more, are not sufficient to raise an inference
of pretext.”). And Sharman’s assumption that eliminations were based on age is
negated by his testimony that his successor, Kinsey, was between 49 and 50 years
old. Sharman’s theory about age-based discrimination also was belied by a report
from an expert for the City, Dr. Benjamin Shippen, stating that, because roughly
three-quarters of City employees were over the age of 40, no significant
“difference [existed] between the actual and expected number of terminations for
employees age 40 and older.” Sharman mentions in passing his evidence of other
employment actions against the City, but the district court stuck that evidence. See
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Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). The district court did not
err by entering summary judgment against Sharman’s complaint of age-based
discrimination because no material factual dispute existed about whether the
reasons for Sharman’s termination were nondiscriminatory or legitimate.
We AFFIRM the summary judgment in favor of the City and Tadros.
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