Joseph MacUba v. Matthew Deboer, Michael Youseff, Charlotte Commissioners, Individually and in Their Official Capacities

permission, Macuba taining DeBoer’s BIRCH, Circuit Before TJOFLAT investigation leaked the results of BRIGHT**, Senior Circuit Judges, (an media, Spatz editor including Hugo Judge. newspaper concerned citizens “local TJOFLAT, Judge: Circuit who had often been critical publication”), media, administration. Joseph brought this Appellee turn, about the situ- questioned DeBoer (1994) money action U.S.C. ation. Charlotte, damages against the

** designation. Myron Bright, Cir- H. Senior U.S. Honorable Circuit, sitting by Judge Eighth cuit proposed departments not the first time that an the four be This was inves- e department, into on consolidated tigation resulted in conducted Macuba Development Department Community inquiries Jeffrey from the media. DeBoer (“CDD”); would save resources and inquiries unpleasant, found these and he provide and owners contractors with “one- feelings made his known to Macuba. De- stop” applications. shopping permit for frequent Boer knew Macuba had con- presented Winters to proposal the press, tacts with members the and at a Board of Commissioners at June 1995 point he told' some Macuba Macuba Board, Board'meeting. The with DeBoer either cut back on with his contacts the and voting, approved proposal Youseff the job. for

media or look another Macuba by a vote 5-0. At meeting, the same Frame, reported to DeBoer’s threat Tom Winters' announced that he had chosen County In then the Admihistrator. addi- CDD, Max to Forgey head the and he tion, complained he to Frame about De- asked the Board endorse his decision. The Board did so with a vote of 5-0. department. handling Boer’s overall of the Forgey began Winters and thereafter 1993, In July Jeffrey Frame fired De- working reorganization, eliminating brother, In Jeffrey’s appellant Boer. positions creating certain and others. DeBoer, Matthew ran for of the vacan- one Among changes, they other eliminated the County cies on the five-member Charlotte license-in- Department’s three Commissioners; he Board of was elected spector positions, including A Macuba’s. election, in November. Prior to his Mat- County’s personnel letter from the depart- anonymous an criticizing thew sent letter position Macuba informed the Macuba to Board of Commissioners.1 eliminated, had been but that he could apply position department. for a in the new Appellant Michael was Youseff elected September In at meeting of the County to the Board of Commissioners Commissioners, Board of Winters briefed 1992; term, he one November served until reorganiza- the Board on the status of the election, 1996. after his if not Soon be- positions being tion. the Among created forehand, Youseff developed dislike for Compliance were a new CDD Code who, Hugo Spatz, reporting on the local Supervisor position Compli- and five Code government, treated the adminis- applied ance positions. Officer for (in unfairly opinion). tration Youseffs In positions. both 1995,2 early late Youseff asked delegated responsibility Winters for Spatz obtaining he where was the informa- filling open positions all the CDD’ Spatz tion for his stories. revealed that to Forgey. Forgey delegated then principle Macuba was one of his sources. responsibility of and interviewing recom- February wrote Youseff the coun- mending applicants Compliance for Code ty attorney responsible Macuba was Supervisor Compliance and Code Officer Spatz’s for some of of the county, criticism subordinates, to two Socrates Shinas and government. They John Bennett. interviewed Macuba Super- but did not him the recommend In March the Board of Commis position. visor Out of applicants seven appointed sioners Jan Winters Ad positions, the five Officer Bennett ranked ministrator, Frame, replace Tom who (which Macuba fourth that he meant was had resigned. Shortly appoint after his qualified position) and Shinas ment, County’s Winters reviewed the four (which ranked him meant that seventh he departments: land use planning, zoning, not). settle question To building, development. and land All four Macuba was one the two least separately, administered but Robertson, applicants, Forgey asked Jock had overlapping some Acting Planning functions. Winters then Director record, respect 1. apparently The letter is not The record unclear with parties’ neither record nor the briefs date. indicate the nature criticisms. conduct, with the media. The defendants’ independent evalua- make County, to asserts, complaint infringed Macuba’s applicants and determine of all tion Fourteenth rights under the First and positions. the Officer qualified for two least classify Amendments and rendered the defendants each was instructed Robertson “Quali- to suit under 42 U.S.C. 1983.3 Qualified,” amenable “Very Well applicant as complaint Qualified.” alleged He Macuba’s also fied,” or “Not “Marginal,” to suit under Qualified” placed defendants were amenable “Not rated Macuba Act, the Florida Whistle-blower’s Fla. Stat. of the list. Based on him at the bottom (West 1992).4 Bennett, Shinas, §Ann. 112.3187 the recommendations Robertson, did offer Macu- answers, denied their defendants Supervisor or Offi- as either ba claims liability. Responding Macuba’s cer. and capacities, in their individual DeBoer 1995, defens- interposed of the Youseff the affirmative meeting at a In December (at Commissioners, immunity all times present- es of absolute Winters Board of qualified acting legislators) as and a final draft of the CDD the Board with ed (their immunity conduct did not violate approval. for structure organizational principle of First clearly established by the draft a vote of 5-0 approved Board law). votes). Winters, DeBoer and Youseff rat- Amendment appellants’ (including on the basis summary judgment moved for by Forgey, made subse- ifying the choices those affirmative defenses.5 positions by created filled the quently plan. motion, In on their the district passing rejected qualified and court considered brought this suit.

Macuba thereafter defense, concluding that the evi- county immunity complaint alleges Macuba’s dence, light in the most favorable abol- viewed DeBoer and Youseff appellants Macuba, established conduct violative Investigator position as License ished his dispositive In the First Amendment.6 its Department and denied Building in the motion, CDD, the court did denying the in the as either employment order immu- address the defense of absolute Supervisor or Code not Compliance Code Officer, though the defendants’ motion nity, of his whistle- even Compliance because Nonethe- part relied in on that defense. activity and his communication blowing Id. prohibited this section.” speech protections First the action free 3. The 112.3187(8)(c). § applicable have been made Amendment by incorporation against into the the states summary judg- moved for 5. The also Kansas, Amendment. See Fiske Fourteenth ment, contending consti- that both Macuba's 380, 386-87, 655, 657, 47 S.Ct. 274 U.S. pendent law claim tutional claim and his were meritless. The district state (1927). complaint, In his L.Ed. 1108 court denied the allege infringement specifically an did not ruling not county’s motion. The court’s is rights, it is Amendment but his Fourteenth appeal. us in this before alleging entity, that a state obvious he order, that it the district court stated In its government, violated his the federal qualified considering defense of im- was rights. light viewing munity the evidence in the after then went on most favorable agency prohibits or inde- ”[a]n 4. The statute disputed of material issues to observe "takfing] any ... pendent from contractor” present. apparently over- fact were The court employee personnel action adverse that, passing on the proposition looked the disclosing pursuant to the information summary immunity qualified on defense of prohibits also provision of this section” and any material judgment, the court eliminated "tak[ing] any affects the adverse action that viewing existed fact issues that have person retaliation rights or interests of a light in the most favorable the evidence plaintiff. By un- person's disclosure of information viewing in this the evidence Slat. Ann. section.” Fla. der this question way, the case to a the court reduced (b). 112.3187(4)(a), provides law; whether, The statute under the best-case-scenario created, "may, aggrieved person after exhaust- thereby that an the defen- plaintiff ing plaintiff's or administrative constitu- all available contractual dant's conduct violated Lomax, remedies, any bring right(s). Smith v. a civil action in court tional See Cir.1995). (11th days after n.7 competent jurisdiction within 180 less, Macuba’s case is based on two events. purposes appeal, of this we consid- rejected event of Macu- er the court to have the defense. first was abolition position Inspector as License in the ba’s appeal and Youseff now the dis- DeBoer Department. Macuba contends trict court’s denial of their motion for sum- that the Board of abolished Commissioners mary judgment. They contend that appellants this because wanted granted court should have them both abso- him; punish reorganize the need to immunity. qualified lute and departments simply pre- land use II. county’s text. The second event was the refusal to hire Macuba for either of the jurisdiction have to consider We newly-created positions two for which he interlocutory appeal. See Ellis v. Cof A, applied. subpart we conclude that Registrars, Bd. fee appellants immuni- are entitled to absolute Cir.1993) (“[D]enial of a ty respect with to the first event. immunity claim of absolute is an immedi B, subpart appellants are we conclude order.”); ately appealable interlocutory see immunity respect entitled to with also, Forsyth, Mitchell v. 472 U.S. to the refusal to hire. 2806, 2817, 105 S.Ct. 86 L.Ed.2d 411 (1985) (“[A] district court’s denial of a A. qualified immunity, claim of to the extent legislative enjoy Local bodies abso law, that it turns on an issue of immunity lute exercising when functions ”). appealable ‘final decision.’ Our review “ ‘in sphere legitimate legislative the novo, is de and we the take case the ” Scott-Harris, activity.’ Bogan v. 523 plaintiff. light most favorable to the See 44, 54, 966, 972, U.S. 118 S.Ct. 140 L.Ed.2d Caldwell, 1480, 85 F.3d Cottrell 1486 & (1998) Brandhove, (11th Cir.1996). (quoting Tenney 79 n. 3 Our initial task is to 367, 376, 788, 783, 341 U.S. 71 S.Ct. 95 determine whether DeBoer or Youseff re (1951)). Bogan, plaintiff 1019 L.Ed. taliated Macuba against because he exer job lost her as health and human services a First right. cised Amendment If either city administrator defendant did in a when the council elimi acting legisla so while capacity department, nated her of which tive as member of the Board of she Commissioners, employee. the sole Plaintiff he is entitled to absolute claimed immunity Country from suit. See Lake the council took this action at the urging Estates, Inc. v. the Reg’l Planning mayor president Tahoe and the council’s vice (who 391, 406, 1171, Agency, 440 U.S. 99 department) S.Ct. voted to eliminate her 1179, (1979). 59 401 If plaintiff L.Ed.2d either because had exercised a First defendant against right by filing complaint retaliated a Amendment non-legislative capacity, against response then we must de a co-worker. her pro damages § termine whether his conduct had been suit for under U.S.C. by Supreme vice-president scribed Court or Eleventh the council asserted the de precedent Circuit such that “a immunity. reasonable fense of absolute The district person appeals rejected [his] would have had court and court of the her Court, however, Supreme notice that his actions were unlawful.” defense. The Hammonds, 1066, 1070 upheld Mencer v. it. It concluded that members of a (11th Cir.1998); City city see also Redd v. council are entitled to the same abso (11th Enterprise, immunity Cir. lute Congress members of 1998). mind, principles With these we enjoy. and state assemblies Id. at view, consider against appel Macuba’s case at 970.7 In the act S.Ct. Court’s lants. “voting quin- for an ordinance ... [was] Gamel, regard county In Woods v. 132 F.3d 1417 conclusion with commis Cir.1998), which was a few announced sioners. Bogan, months before we came to the same tessentially legislative.” Id. at 118 ble for blowing the whistle on his brother Addressing plaintiffs S.Ct. at 973. Jeffrey and getting fired. Macuba argument the council vice-president also offered evidence that Youseff hated should not be immune from suit Macuba after he Spatz because learned from retaliate, she had acted with intent Macuba had leaking been the results of his (Macuba’s) Court, affirming holding Tenney, investigations its press. held that We assume for the “motive or intent” of sake of discussion that defendant is irrelevant evidence establishes determining appellants immunity applies. had the intent to absolute Id. at retaliate Macu- 54-55, 118 ba.8 shown, What Macuba at 973. has not S.Ct. howev- er, appellants is that had anything to do When DeBoer and Youseff voted to with Forgey’s decision not to hire him. reorganize departments, the land use they approved positions later when DeBoer’s and Youseff the CDD struc s as ture, county they were exercising “quintessen gave commissioners them no ex press authority tially legislative” personnel to make county’s function. The routine decisions—that authority Code invests the Board of was vested in Commissioners Administrator, County with “all legislative authority” Jan Winters. and “all See (Fla.) Charlotte County § powers Code 1-2- self-government of local not incon 80(H).9 assigned Forgey Winters sistent with the task general special law or law.” (Fla.) filling positions, new CDD Code, including Charlotte Home Rule Compliance Code Charter, 2.2(D). Supervisor and the five Art. II This includes Compliance positions. Code Officer power For to “take programs action on gey delegated job interviewing improvement and the welfare recommending posi candidates for these Therefore, of its residents.” Id. insofar as tions to Bennett and Shinas. Neither rec liability Macuba rests on the elimination of ommended Macuba for the Supervisor po position as a License Investigator, ap sition. When the two disagreed as to who pellants are entitled to immunity. absolute should fill the five Compliance posi Officer B. tions, Forgey brought an outside evalu ator, Robertson, who concluded that Macu that, Macuba contends in an effort to ba was the least qualified applicant. On punish him for exercising his First Amend- evaluation, the basis of Robertson’s and rights, DeBoer and persuad- Youseff Shinas’ and Bennett’s recommendations Forgey reject ed application to for jobs, Forgey rejected for both Macuba’s either newly-created Compli- Code application. positions. ance Macuba offered evidence that Winters, DeBoer hated Macuba Bennett, because De- Forgey, and Robert- Boer believed that responsi- Macuba was son all filed affidavits with the district parties significant 1998), Schwalbe, 8. The space devote in their Cir. and Walker v. Supreme (11th Cir.1997), briefs to the Court's recent decision 1132-33 which con Britton, consider, 523 U.S. cluded that a district court should Crawford-El (1998), qualified S.Ct. 140 L.Ed.2d immunity purposes, which for evidence of motive, rejected requirement plaintiff improper only that a in a but when motive is § produce part 1983 case convincing clear and of the constitutional claim. We decline because, proof improper motive when motive is an to address this issue here even if essential appellants element of the shown constitutional claim. has that dislike him, apparent disagreement par produced between he has not sufficient evidence whether, Crawford-El, they ties is after a district to establish him caused not to be hired. government court consider a official’s fact, determining intent or motive in county prohibit- if the official In commissioners are qualified is entitled immunity interfering employees super- when the ed from with claim is for First Amendment except retaliation. We vised administrator “for effect, any, have not decided purposes inquiry what if Craw and information.” Code, (Fla.) holdings, has on our such as Mencer Charlotte Home Rule ford-El Hammonds, Charter, 4.1(C). 1070-71 Art. II court, posal reorganize depart- the land use and all said that neither DeBoer nor spo- Leonard testified that he had those ments. selecting Youseff influenced them county employees Compliance ken with a number of posi- would fill the Code who heavily told him that Youseff was who spoke tions. Robertson said that no one reorganization involved of the de- or with him about his evalu- communicated partments. Forgey He told stated solely applicants. ations of the He relied “in [Forgey’s] him that Youseff was office description of applications on their and the put he felt should in a desk so much he sum, positions they seeking. and chair for Leonard also [Youseff].” Bennett, Shinas, Robertson, as to Ma- had a claimed DeBoer and Youseff produced cuba no evidence DeBoer Macuba, employees, including “hit list” of them or attempted Youseff contacted fired, whom wanted Youseff any way recommenda- to influence their depar- point (prior had at one to Leonard’s tions. Board) ture this hit list given from jury concluding that reasonable attempt father in an Leonard’s influence appellants could find that caused Macuba Leonard.10 Leonard also claimed that CDD, not to hired in the the district be Forgey told that Macuba was the primarily pieces court relied on two person in qualified Building most De- (besides affidavit). evidence Macuba’s partment, depart- and that the land use chart, organizational prepared first was an being reorganized ments were as a means “DRAFT,” stamped which Forgey executing plan Youseffs to have certain “possibility,” along listed Macuba as a with people, including fired. employee, position another current Most, all, testimony if not of Leonard’s Building suggests Director. This county’s regarding reorga- decisions to one time at considered Macuba (thus departments nize the land use elimi- Di- qualified nating position) reject Macuba’s and to rector; prove Forgey it does not found application Compli- Macuba’s for the Code (let him qualified alone more than CDD, positions ance is rank hear- applied) any posi- others who other say. The district court did not deal with event, In any Forgey delegated tions. problem when it considered Leonard’s responsibility selecting the Code Com- testimony; simply it factored the testimo- others, pliance positions to and when a be, ny ruling. may part, into its This in (Rob- arose, brought conflict in an outsider apparent because of in confusion the feder- ertson) to break the tie. It would not be al courts on the which hearsay extent to reasonable to infer from this evidence may be considered in on a motion ruling alone that DeBoer and Youseff influenced summary judgment. Forgey given not to hire solely acted on his subordinates’ general rule inadmissi recommendations. hearsay11 ble “cannot be considered on a heavily

The district court also relied on summary judgment.” motion for Garside (1st deposition Inc., 46, subsequent Drug, affidavit of v. Osco 895 F.2d 50 Leonard, Cir.1990) Circuits). (citing Richard a former com- cases from six 56(e) missioner. Leonard left the Board of Rule of the Federal Rules of Civil expired Commissioners when his term requires Procedure that “affidavits” that 1994; hence, he not a support oppose summary judgment member of the mo Board pro- personal when it entertained Winters’ tions “shall be made on knowl- statement, 10. presented purpose For reason not rec- estab- some disclosed ord, produce contents, Macuba did not an affidavit lishing the truth of statement’s Forgey’s opposing appellants’ from father in exception that does not fall within an summary judgment. motion for hearsay generally rule. See Fed.R.Evid. 801- 804. By (for hearsay pur- inadmissible we mean poses opinion only) an out-of-court

1323 1462, (M.D.Fla.1997). F.Supp. forth such facts as edge, [and] shall set 1466-67 would be admissible evidence.” This These courts have coined phrases these applies testimony given language rule also to on from appearing Supreme deposition. Catrett, See Randle v. LaSalle Tele Court’s Corp. decision Celotex v. comms., Inc., 563, 317, 2548, F.2d 570 n.4 477 876 U.S. 106 S.Ct. 91 L.Ed.2d Cir.1989). (1986),12 265 which held that a nonmoving party, in opposing summary a motion for courts, own, including appear Some our affidavits, judgment, produce need not but general to have restated the rule to hold may refer the district court to “pleadings, that a district court consider a hear depositions, interrogatories, answers to say passing statement on a motion for file,” provided and admissions on as summary judgment if the statement could 56(c).13 Fed.R.Civ.P. “reduced to be admissible evidence at tri al” or “reduced to admissible form.” See believe that the We courts have used the Wright Corp., phrases v. Southland 187 F.3d 1287 “reduced to admissible evidence at (11th Cir.1999); Pritchard Southern Co. trial” and “reduced to admissible form” to Servs., (11th Cir.1996); 1130, explain that the out-of-court statement Johnson, 1573, (the 56(c) McMillian v. made to the witness Rule affiant (11th Cir.1996); deposition 1584-85 Petruzzi’s or the deponent) IGA must be ad- Supermarkets, Darling-Delaware Inc. v. purpose. missible at trial for some For Co., Inc., (3d F.2d example, Cir. might statement be admissi- 1993); Ctr., Raby Baptist Med. 21 ble exception because it falls within an to (M.D.Ala. F.Supp.2d rule,14 hearsay 1353-54 n.9 or does not constitute 1998); Auth., (because Tampa Coker v. Port hearsay at all it is not offered to phrases quoted 12.The two problem in the text derive Court refers to the we have here— passages pas- from two hearsay in Celotex. The first statements contained sage deposition is: within Leonard's and affidavit would be admissible at trial were Leonard to nonmoving party We do not mean that the sought take the stand and Macuba to produce elicit must evidence in a form that those statements from him. would be admissible at trial order to summary judgment. Obviously, avoid Rule Celotex, 13. at documents issue in which require nonmoving party 56 does action, wrongful involved a death were “a 56(e) depose per- her own witnesses. Rule decedent, transcript deposition of a proper summary judgment amits motion to from letter an official of one of the decedent’s opposed by any be of the kinds of evidentia- employers petitioner planned former whom 56(c), ry except materials listed in Rule witness, call as a trial letter from an themselves, pleadings mere and it is from respondent’s company attorney.” insurance normally this list that one expect would 477 U.S. at 106 S.Ct. at 2551. Because nonmoving party showing to make Appeals the Court of had not addressed we which have referred. whether these documents sufficient to 477 U.S. at 106 S.Ct. at 2553. The genuine create a issue of material fact or (which later) passage second comes states whether the documents would be admissible Appeals that “the Court of declined to address trial, Supreme at the Court did not decide adequacy showing by either the made 326-27, either issue. Id. at 106 S.Ct. at respondent opposition petitioner's mo- 2554-55. summary judgment, question tion for the or 803, 804; 801(d), showing, Super whether such a if reduced to admis- 14. See Fed R. Evid. evidence, Marlinton, carry sible would be sufficient to market Inc. Meadow Gold of Dairies, Inc., (4th respondent's proof at at burden trial.” Id. 71 F.3d 126-28 Cir. 1995) (finding hearsay 106 S.Ct. at At 2554-55. no time does that fell under 804(b)(1) phrase exception, the Court use the "reducible to admis- and therefore should form,” phrase appeared by sible a that has have been considered district court in mo course, passage summary judgment). numerous decisions. In the first Of un tion above, Evidence, quoted merely noting the Court der the Federal Rules of the cate 56(c) 801(d) permits parties rely gories formally Rule the on sub- listed under are not (in "exceptions,” they that could not missions form are labeled even if function as court) presented exceptions hearsay pur to the be admitted into evi- to the rule for most passage, poses. dence at trial. In the second Johnson, asserted),15 hearsay rule. In McMillian v. prove the truth of the matter (11th Cir.1996), appellant 88 F.3d 1573 impeachment purposes solely or is used evidence).16 the district court disre- (and contended not as substantive garded Celotex and our decisions cases, drawing on one or both of Our Scientology and Avia- Church of Offshore quoted phrases, are not to the con- summary it judg- tion when excluded on trary. Aviation v. Transcon Offshore in an hearsay ment statements contained (11th Cir.1987), Lines, Inc., 831 F.2d 1013 According appellant, affidavit. to the admissibility of the out-of-court state- statements, although in “inadmissible ment, in a letter at- which was contained form,” presented in could be admissible deposition, was not contested. tached to panel form at trial. Id. at 1584. Moreover, panel it is unclear from the Celotex, It disagreed. read and our cases opinion deponent testified Celotex, oth- applying simply allowing “as (from personal knowledge) to the essence erwise admissible evidence to be submit- statement, the statement whether the ted in form at the summary inadmissible presented, hearsay. constituted rank as judgment stage, though at trial it must be Scientology Flag In Church Service Or- (em- submitted in admissible form.” Id. Clearwater, City Inc. ganization, added). Here, McMillian, phasis as in (11th Cir.1993), F.3d 1514 the out-of-court hearsay not statements were “otherwise materials, appeared in statements “various Finally, admissible.”17 Pritchard v. newspaper Id. at including articles.” 1530. Services, (11th Southern Co. 92 F.3d 1130 panel’s opinion does not reveal the Cir.1996), citing after Church Scientolo- statements; objected contents of the it gy proposi- Aviation for the Offshore only pre- states the materials tion that hearsay may “inadmissible some- City sented to show that the acted with a times be ruling considered court when Id. The “sectarian motivation.” court did motion,” summary judgment on a the court whether, trial, pass questions not at holding relied on McMillian in the materials would be inadmissible as challenged hearsay statements could not hearsay, non-hearsay, rank as admissible be “reducible to admissible form” at trial. exception or admissible under Id. at 1134.18 801(c). example, impeachment. disposed 15. "[i]f See Fed.R.Evid. For The court of the is- significance of an offered statement lies sue as follows: made, solely [wjhile in the fact that it was no issue is may the statements be admissible asserted, anything raised as to the truth of purpose, correctly for that the district court hearsay.” and the is not Fed. impeachment statement noted that such evidence is 801(c), Advisory R.Evid. Committee's Note. evidence of the truth substantive See, Q-L Invs., Inc., e.g., potential impeach- Akin v. statements.... Such (5th Cir.1992) evidence, therefore, (finding out-of-court state not be used reliance, prove genuine ments were offered to not for to create a issue of material fact for truth, trial. will [the] their and therefore should have been Because statements be ad- only impeachment missible at trial as evi- considered district court in motion for dence, genu- summaiy judgment). statements do not create a ine issue of fact for trial. however, possible, 88 F.3d at 1584. It is 607, 613; 16. See Fed.R.Evid. Firemen’s Fund case, depending on the circumstances of the Thien, Ins. Co. v. impeachment evidence could create Cir.1993) ("[Pjutting question ... evidence in genuine supra issue of material fact. See note through impeachment could defeat a motion summaiy judgment moving par- when the ty persuasion.”). has the burden of that, 18.Our research reveals for the most part, prop- district courts in this circuit have (in panel erly phrase 17. The McMillian also considered understood the to ad- "reducible question addition the to whether chal- missible form at trial” and adhered to the See, lenged principles e.g., statements could be introduced to we have set out above. contents) Ctr., prove Raby Baptist F.Supp.2d the truth their v. Med. of 21 (M.D.Ala.1998) district (considering only court should have considered the out- 1353-54 n.9 portions of-court deposition utterances because constituted those of a submitted

1325 mind, If decision not to hire him. Forgey’s in it principles With these prove appellants all Macuba can is that the district court apparent that should be First testimony angry because he exercised his hearsay considering erred that re- First, rights, Amendment all of the statements Leonard. jected constitution- application, him were then no made to Leonard claims were that al violation occurred. But this is all truth: that DeBoer for their being offered nothing he has shown. more than people a “hit Given had list” Youseff appel- showing, this we must conclude including departments, land use fired; immunity in Macuba was on lants are entitled to they wanted list;” purpose capacities. the sole their individual the “hit and that was to into the CDD reorganization IV. Second, none of the accomplish this. reasons, foregoing For the we reverse ad Leonard would be made to statements and in- summary judgment the denial of exception to the under an missible at trial judgment the district court to enter struct Finally, though even hearsay rule.19 and DeBoer their individual Youseff might Leonard be ad made to statements (if capacities on Macuba’s First Amendment he testi impeach Forgey missible to claim. fied), admissible as sub they would be McMillian, 88 F.3d

stantive evidence. See REVERSED. at BRIGHT, Judge, concurring Circuit sum, jury, for a In to make out a case dissenting part: part and appel- to demonstrate Macuba had majority in this case agree noise about I with the just than make lants did more qualified immunity him; except grant a causal had to establish disliking he I that issue dissent. feelings to the defendants. On appellants’ between connection certainly testify at personal could not . .. Plaintiffs doctor appear lo be. based on "which Planz, company an insurance said to 13 trial to what knowledge”); Marshall letter, because, (M.D.Ala.1998) (re from the plaintiff aside F.Supp.2d 1255-56 letter, personal would have no offering hearsay par doctor fusing when to consider declarant); knowledge court of that. What district provide ty affidavit from did not plaintiff had dem Bank, said was that should have F.Supp. Barnett Bush v. fact genuine issue of material onstrated a (M.D.Fla.1996) hearsay (refusing to consider (the testimony the doc submitting evidence any nonhearsay it did not "fall into because tor) given in an admissi are, which could later be exception hearsay category”). We trial). testifying at (by the doctor ble form however, concerned about Coker somewhat Authority, F.Supp. Tampa Port Coker, (M.D.Fla.1997). plaintiff excep had likely In candidates for'an 19. The most defendant, employer, with charged hearsay the statements rule are tion to former Leonard, might by Forgey with Disabilities which one a violation of the Americans made judg summary argue inter the issues at the the "statement Act. One of fall under 804(b)(3). plaintiff stage exception. was "dis See Fed.R.Evid. was whether est” hearsay to be admit purposes the Act. Plaintiff had statement order for abled” exception, "so far this it must be testimony physician, but ted under of his submitted pro pecuniary or contrary to the declarant’s defendant’s a letter from he also submitted ' interest, subject tended to prietary or so far company, plaintiff, written insurance liability ... civil reported declarant to or criminal "[y]our doctor has which stated that ‘ person in the declarant’s you completed treatment and reasonable have work, made the statement position would not have you will have some return to but that Forgey’s believing true.” Id. on-the-job- it to be impairment your unless permanent from Leonard, alleged while unflat it statements to The court held that accident.” Id. at 1466. Youseff, subjected to civil tering hardly hearsay because "there is could consider this p event, any liability. suggestion hearsay re or criminal that the statement no exce be unavail requires that declarant impairment tion garding plaintiff’s permanent able, Forgey submitted an affidavit and since form at trial reduced to admissible cannot be court, to believe this we have no reason testimony.” at 1467. through Id. the doctor’s 804(a). Fed.R.Evid. the case. See of the law. is not a correct statement This magistrate judge testimony the defen- corroborated the Plaintiffs denied summary judgment dants’ motion for regarding the set forth in the allegations following based on the statement of facts: Complaint. Mr. Leonard testified opposition deposition Mat- both his Youseff and and his affidavit thew DeBoer’s Summary Motion for he Forgey, was advised Max Elliott Judgment, plaintiff, Joseph Kampert, Ben Cotroneo and Paulette deposition filed his own affidavit and Horne that the reorganization of the basically which substantiated the state- planning, zoning, building and land de- in the Complaint ments filed in this velopment departments was orchestrat- depositions, cause. In his Macuba also ed Matthew DeBoer and Youseff. stated that the Director of Personal Re- Mr. Leonard advised that because of his lations, Ray DeArriba informed him that past county association with the as a due to Youseff and Matthew DeBoer’s county commissioner that the various influence, likely would ob- employees of felt comfortable position tain a compliance code be- in talking with him. Leonard testified Hugo Spatz cause of his association with that Mr. Forgey complained that Com- reporting and his wrongdoing missioner Youseff was his office so part Jeffrey Kir- DeBoer and Robert put often he felt he should in a desk by (employees in Building Depart- and chair for him. Mr. Leonard testi- ment), causing both those individuals to fied that he through learned various em- be terminated. ployees including the ones mentioned To position, further bolster his Macu- that both Youseff and Matthew DeBoer following ba attached the to his affida- employees had a hit list of copy report vits: a of his which caused po- wanted eliminated from their county Kirby resign Robert and Jeff DeBoer systematically po- sitions and used their terminated; to be copy a of Matthew personnel. sitions to eliminate those deposition DeBoer’s in which DeBoer Mr. Leonard testified that Commission- admitted to sending anonymous let- er Youseff went to the extreme of hav- ter to the Charlotte Commis- ing meeting with Leonard’s father sioners which was derogatory to Macuba while Richard Leonard was still a com- Frame; supervisor and to Macuba’s Tom gave missioner and his father a hit list copy of a news release and Charlotte things advised of various newspaper Sun Herald article in which he, do, Richard Leonard should other- Youseff admitted he forced resigna- wise jeopardy. his career could be in tion highly placed county employ- of five given spelled document to his father ees; and, copy organization- of a draft out people the removal of certain al prepared by Forgey, chart Max personnel. transfer of certain Mr. Planning Director for the new Commu- Leonard testified that he was so con- nity Development Department that re- cerned that he turned this document flects that Forgey was at one time con- over county attorney who turned sidering Macuba for the over a copy that to the Sheriffs De- (head building Director partment investigation. Mr. Leon- department) prior being to Macuba ter- ard testified that Commissioner Youseff as being minated the least em- Frame, stated that Mr. his administra- attachments, ployee. All of these cor- tion, his followers and his cronies were allegations roborate the set forth in the nothing but a complaint. amended bunch of idiots and that they all go. Finally, needed to Mr. Also, opposition to the Defendants’ during deposition Leonard testified Summary Motion for Judgment, Plaintiff that Mr. told him that filed the Joe Ma- deposition affidavit and of one Leonard, Richard cuba was qualified applicant a former the most Charlotte County Commissioner, testimony job prior whose that he had for the to the time contentions, Despite these accepted given knowledge. nor he was not upon reply Based all of the brief does not otherwise attack the position. available Indeed, Macuba and Leonard and testimony admissibility of the evidence. file, this and affidavits on the documents given some of the statements to Leonard there are determined that has by employees County may Court of the well have which are in facts this case material represented employee admissible state- prevent granting dispute and would ments, provable or otherwise be summary judgment. by at trial the individual mak- admissible However,

ing the statement. the record accepts following If incomplete the Court remains on foundation and the in a most favorable to the light facts manner which this evidence would be are material Plaintiff then there facts presented at trial. dispute regarding the retaliation. The sum total of evidence recited above an- that the Defendants were

facts are jury demonstrates that a issue exists relat- Plaintiff because the Plain- gry with the ing liability to defendants’ and that sum- report caused by investigative tiff on the mary judgment for defendants basis (Matthew DeBoer, Jeffrey DeBoer’s qualified immunity inappropriate is an Youseff) ally and an to have brother I Accordingly, resolution.1 dissent. employment terminated with the permitted district court should be to deter- County, that it known that the became in fur- mine what evidence is admissible concerning misman- publicity adverse proceedings pretrial and make ther corruption county offi- agement by rulings conformity trial to admissible by being press leaked to the cers evidence. Hugo Spatz, that through the Plaintiff ruling I would affirm the district court’s a hit list of of these Defendants had both qualified immunity rejecting the defense of separated employees wanted summary judg- on defendants’ motion for county, and that these Defen- from the ment, I case to the ánd would remand this power would use the of their office dants proceedings. district court for further employees those to be terminat- to cause A state of government ed. official’s

mind is a critical element first amend- retaliatory claims and must be Plain-

considered this case. Because genuine tiff has established a issue of Wayne TOMPKINS, Petitioner- retaliation, material fact as to it must be Appellant, the Defen- stage assumed at retaliate him for his dants did MOORE, Secretary, Flori- Michael W. speech. Corrections, Department da Appellants’ Initial Excerpts Record Respondent-Appellee. omitted). (citations Br., Tab 116 at 9-12 approved The district court confirmed No. 98-3367. magis- foregoing determination Appeals, States Court of United judge. trate Eleventh Circuit. brief, appellants DeBoer reply their 29, 1999. Oct. state- and Youseff refer to an “inaccurate by appellee,” and assert that

ment of facts furnished wit-

some information represent

ness Leonard did not first hand any, of Macuba as an argument appeal rested if to rid the 1. The defendants' on "objective of their ac- reasonableness” employee was irrelevant. intention, tion, subjective asserting their

Case Details

Case Name: Joseph MacUba v. Matthew Deboer, Michael Youseff, Charlotte Commissioners, Individually and in Their Official Capacities

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Oct 29, 1999

Citation: 193 F.3d 1316

Docket Number: 98-2651

Court Abbreviation: 11th Cir.