John \"Burt\" McAlpin v. Town of Sneads Florida ( 2023 )

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[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13278
____________________
JOHN "BURT" MCALPIN,
Plaintiff-Appellant,
versus
TOWN OF SNEADS, FLORIDA,
LYNDA BELL,
DANNY PETTIS,
DARYL JOHNSON,
HELEN GRICE,
SHERRI GRIFFIN,
Defendants-Appellees.
____________________
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2 Opinion of the Court 20-13278
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:19-cv-00292-TKW-MJF
____________________
Before WILLIAM PRYOR, Chief Judge, LAGOA, Circuit Judge, and
WATKINS,* District Judge.
LAGOA, Circuit Judge:
The Town of Sneads, Florida—nestled on the Florida-Geor-
gia border, about fifty miles northwest of Tallahassee—is a small
municipality of fewer than 2,000 people. John “Burt” McAlpin
served as the Chief of Police for the Sneads Police Department
from March 2006 until October 2018. From all indications in the
record, McAlpin had a pleasant working relationship with the
Town Council for much of these twelve years. However, this re-
lationship rapidly devolved with the election of new Councilmem-
bers in the 2017 and 2018 municipal elections. On October 9, 2018,
the five-member Town Council terminated McAlpin’s employ-
ment by a 4-to-1 vote. The Town Council did so under the charge
that McAlpin was disrespectful at best and insubordinate at worst.
McAlpin, on the other hand, claims his firing was in retaliation for
things he said, disclosed, and reported, all regarding various
*Honorable W. Keith Watkins, United States District Judge for the Middle
District of Alabama, sitting by designation.
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20-13278 Opinion of the Court 3
matters related to the newer Councilmembers with whom he had
a contentious relationship.
McAlpin filed this eight-count action against the Town of
Sneads, Town Manager Lynda Bell, Town Councilmembers
Danny Pettis and Daryl Johnson, Town Council President Helen
Grice, and Town Clerk Sherri Griffin (collectively, “Defendants”).
He brought unlawful-retaliation claims against the Town of Sneads
under the Florida Whistle-blower’s Act (“FWA”), see Fla. Stat.
§§ 112.3187–.31895 (2002), the Family and Medical Leave Act
(“FMLA”), see 29 U.S.C. § 2601, and the First Amendment to the
United States Constitution. And he brought identical retaliation
claims under the First Amendment against each of the five individ-
ual defendants. The district court granted summary judgment in
favor of Defendants on all eight counts, and McAlpin appealed. For
the reasons explained below, we affirm.
I. FACTUAL AND PROCEDURAL HISTORY
A. The Town of Sneads, Florida, and McAlpin’s Public Service
The governing body of the Town of Sneads is the Town
Council, composed of five members elected by the people of the
Town of Sneads. Among the five members of the Town Council
is the President of the Town Council, an individual charged with
presiding over Town Council meetings, enforcing Town Council
rules, and performing other duties prescribed by statute or ordi-
nance. Distinct from the Town Council is the unelected Town
Manager, who serves as “the chief executive officer and the head
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of the administrative branch of the town government.” The Town
Manager is “responsible to the Town Council for the proper ad-
ministration of all affairs of the city.”
The Town of Sneads has a relatively small police depart-
ment; it has five full-time officers, four full-time dispatchers, and
several part-time employees. The Town Council appoints the
Chief of Police, who “hold[s] his office at the pleasure of the coun-
cil.”
McAlpin has generational connections to the Town of
Sneads. He was born there, his two brothers are former law en-
forcement officers there, his father served as a Councilmember,
and his mother served as a deputy clerk. He also has a longstanding
commitment to public service. He became a certified police officer
in 1994, first serving in the Jackson County Sheriff’s Office. McAl-
pin joined the Sneads Police Department in March 2006, when the
Town Council appointed him Chief of Police.
The record shows that McAlpin was somewhat insubordi-
nate toward his supervisors while serving at the Jackson County
Sherriff’s Office. Shortly before McAlpin resigned from the Sher-
iff’s Office, Captain Joey Rabon noted in a report that “McAlpin has
repeatedly proven that he works on his own agenda, with little or
no concern of being insubordinate. His actions . . . indicate[] he has
flagrant disregard for authority and leadership.” However, the rec-
ord also shows that McAlpin had a pleasant and well-functioning
relationship with the Sneads Town Council from the time of his
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appointment in 2006 as Chief of Police until the 2017 local elections
and the election of several new Councilmembers.
B. Election of New Councilmembers
Beginning in 2017, two local elections resulted in changes to
the five-member Town Council. In April 2017, Danny Pettis, who
campaigned on the platform of reforming the Sneads Police De-
partment, was elected to the Town Council. Upon taking office,
Pettis talked of changes in shifts, compensation, and overtime prac-
tices in the police department. Rumors began to spread that Coun-
cilman Pettis wanted to disband the police department and out-
source its services to the Jackson County Sheriff’s Office. In April
2018, Daryl Johnson was elected to the Town Council, defeating
one of McAlpin’s Council allies. Johnson was perceived as aligning
with Councilman Pettis on law enforcement issues. With Pettis
and Johnson on the Town Council, rumors intensified that the po-
lice department was going to be disbanded, McAlpin fired, and the
Jackson County Sheriff’s Office retained to provide law-enforce-
ment services to the Town of Sneads.
With this new composition of the Town Council, the Coun-
cilmembers elected Helen Grice, who had served on the Town
Council since 2011, as Town President in April 2018. Upon her
election as Town President, Grice immediately began to consider
the appointment of either Pettis or Johnson to the position of “po-
lice liaison.”
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C. Deteriorating Relationship Between McAlpin and the
Town Council
The election of Councilmen Pettis and Johnson, the eleva-
tion of Councilwoman Grice to Town Council President, and the
impending appointment of Councilman Pettis to the position of
police liaison caused the relationship between McAlpin and mem-
bers of the Town Council to deteriorate.
1. Disclosure of Councilmen Pettis’s and Johnson’s Arrests
After McAlpin heard President Grice was considering either
Councilman Pettis or Councilman Johnson for the position of po-
lice liaison, he filed a public-records request with the Florida De-
partment of Law Enforcement (“FDLE”) as to the two Councilmen
because he and a sergeant at the police department, Adam Bowen,
were familiar with the activities of Pettis and Johnson prior to both
of them becoming Councilmembers and knew that Pettis and
Johnson both had criminal histories in their backgrounds. Indeed,
the public-records request revealed that Pettis and Johnson had
prior criminal convictions from 1991 for the battery of a mentally
handicapped inmate when they worked together at the Florida De-
partment of Corrections. In his attempt to, in his words, “keep ei-
ther one of those criminals from being a liaison of the police de-
partment,” McAlpin forwarded the public records to President
Grice on June 11, 2018. Despite this information and McAlpin’s
plea not to appoint either Pettis or Johnson, President Grice ap-
pointed Councilman Pettis to the police liaison position at a Town
Council meeting the next day.
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2. Voicing Concern Over Councilman Pettis’s Request to Re-
move an Employee’s Disciplinary Memorandum from Personnel
File
During that June 12, 2018, Town Council meeting, Council-
man Pettis made a motion to remove a disciplinary memorandum
from an employee’s personnel file. Although McAlpin sat quietly
at the public meeting, he confronted Pettis about three weeks later,
voicing his concern that the removal of anything from a personnel
file was potentially a violation of Florida’s public-records laws. Act-
ing on this concern, the Town Council decided to keep the memo-
randum in the employee’s personnel file. Of relevance discussed
below, McAlpin never provided any written complaint about this
incident.
3. Facebook Post on Proposed Changes to the Sneads Police
Department
Less than a month later, at the August 2, 2018, Town Coun-
cil meeting, the Town Clerk, Sherri Griffin, reported a budget def-
icit in excess of $20,000. In response, Councilman Greg Lewis sug-
gested the Sneads Police Department turn over its midnight-dis-
patch position to the Jackson County Sheriff’s Office and cut one
employee. McAlpin spoke up during the public-comments session,
voicing concern and insisting there were other ways to save
money. When asked by Councilmembers for ideas on alternative
ways to save money at another Town Council meeting a week
later, he responded that “the only solution . . . was to not hire a city
manager and for the council to forfeit their salaries each month.”
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McAlpin later took his advocacy to social media, posting on
his Facebook page a message “[t]o the citizens, residents, voters,
and taxpayers who live in the City limits of Sneads” of his “re-
sistance and total disagreement” with the idea put forward by
Councilman Lewis. He implored his readers to “[c]all or visit the
elected officials because remember they work for you and let your
voice be heard.”
4. The August 9, 2018, Memorandum
Immediately before a special Town Council meeting on Au-
gust 9, 2018, McAlpin hand-delivered a note to all the Town Coun-
cilmembers on official letterhead from the Sneads Police Depart-
ment, dated August 9, 2018. The August 9, 2018, Memorandum,
signed by McAlpin as Chief of Police, stated:
Town of Sneads Council members,
Let this communication serve as official notice of the
following. Within the past 30 days I, in good faith,
have disclosed information of suspected criminal con-
duct by a Town of Sneads official to Special Agents of
the Florida Department of Law Enforcement. I have
requested the agency deemed appropriate to conduct
an inquiry and investigation. I am enacting “Whistle-
blower’s Act” Protection. If any retaliatory action or
“Adverse personnel action” occurs it will be immedi-
ately addressed with my Attorney.
None of the Councilmembers understood the nature or content of
this note when McAlpin delivered it to them. It was through
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20-13278 Opinion of the Court 9
discovery in this litigation that they later learned Clerk Griffin was
allegedly involved in a theft, which was detailed in an undated, un-
sworn statement prepared by the police department’s dispatcher,
Connie Wright, and forwarded to the FDLE by McAlpin. From
the record evidence, it appears the FDLE never opened any inves-
tigation into Clerk Griffin or any other employee relating to mis-
handling or misappropriation of any moneys.
5. Sick Leave
McAlpin’s deteriorating relationship with the Town Council
only accelerated when the Town Council hired Lynda Bell as
Town Manager on August 20, 2018. Described as an “outsider,”
Manager Bell was originally from Miami-Dade County, and no one
in the Town of Sneads knew her before she applied and inter-
viewed for the position. She quickly became aware of the Town of
Sneads’s budget crisis and identified the significant accrual of
“comp time” by employees of the police department as one of the
most substantial problems. On August 21, 2018, Manager Bell
emailed the several department heads and stated that, “Please note,
effective immediately[,] there will be no overtime without the ex-
press approval of the City Manager. Due to budget constraints[,]
it is extremely important that all departments adhere to this pol-
icy.” She followed up with a second email, which stated: “In addi-
tion to the maximum time being accrued every effort must be
made to effectively use that time. This guarantees that the city pol-
icy is adhered to, and the town is kept solvent.”
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McAlpin met with Manager Bell the next day. She asked
McAlpin to reduce the police department’s expenses and overtime
and to have his employees work off their excess comp time. McAl-
pin and Bell have different recollections of the nature and tone of
the meeting. According to McAlpin, “Bell was extremely hostile
towards [him] from the outset . . . . [S]he was rude and demeaning.”
Bell recounted McAlpin’s “tone and demeanor” as “hostile and
threatening.” According to Bell, McAlpin stood up, “placed his
hands on Bell’s desk, leaned towards [her], and menacingly asked
if [she] had ever ‘run a police department[]’” before “slamm[ing]
the door with such force that [it] shook the building.”
The following week, Bell emailed McAlpin to inform him
that she was aware of “extreme overtime” used over the previous
weekend, despite her instructions to the contrary. She explained
again to McAlpin it was more cost effective to use part-time dis-
patchers than to pay employees overtime and reminded him that
the situation was at a “crisis point.” Two days later, she emailed
McAlpin again regarding the possibility of transferring the dispatch
services to the Jackson County’s Sheriff’s Office “instead of paying
the extreme overtime.” In the email, she included a plea: “Burt,
[p]lease know that we are in this together, I am not your enemy.
I’m simply trying to benefit this city and keep it from drowning in
financial debt.” Of note, in several of these emails from Manager
Bell to McAlpin, she asked him to provide her with dispatch logs,
police-activity reports, and the police department’s policy and pro-
cedures manual. At this point, McAlpin had not responded to any
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of these emails, as evidenced by Bell’s copying Councilman Pettis
and asking him to instruct McAlpin “to do what [she] asked since
[he did] not respond to [her] emails.”
Within two weeks of Bell’s hiring, McAlpin took sick leave
due to what he described as physical symptoms of anxiety and
stress. On September 5, 2018, he visited a medical clinic with chest
pain, cardiac issues, and generalized stress. According to McAlpin,
he was medically excused from work for two weeks, although he
never disclosed “the actual underlying cause of the need for leave
. . . , as that would violate HIPAA.” The clinic provided McAlpin
with a “Return to Work/School” note, which stated that he was
cleared to return to work on September 21, 2018. The note did not
indicate why he went to the clinic or why he was excused from
work, and it was signed by the clinic receptionist. After Bell
emailed McAlpin on September 10, 2018, advising the note was in-
sufficient because it did not contain a “statement of medical neces-
sity” and was not signed by a doctor, McAlpin submitted a second
note that was functionally identical to the first but signed by a nurse
practitioner rather than a receptionist. He submitted a third note
from the same clinic extending his excused time out of work to Oc-
tober 3, 2018, but that note still did not provide a medical reason.
On October 5, 2018, a former sergeant hand delivered a FMLA
form signed by McAlpin to Town Hall that indicated what his med-
ical conditions were and the probable duration of those conditions.
Prior to receiving the signed FMLA form from McAlpin, an
issue arose regarding McAlpin’s police-department truck. On
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September 20, 2018, Bell asked McAlpin to “ready” his police-de-
partment truck for pick up. McAlpin advised Bell that he was out
of town and told her that no one was authorized to enter his prop-
erty. Bell sent a follow-up email again requesting that McAlpin re-
turn his truck, which was the Town of Sneads’s property, indicat-
ing that she had been advised that he was “refusing to allow” the
truck to be picked up. McAlpin again responded in a confronta-
tional manner: “you should be aware I work for and answer to the
town council and the citizens of Sneads, you are not my supervisor
and cannot direct me to do anything improper.” Then, in a subse-
quent September 28, 2018, email to Bell, McAlpin asked her to ex-
plain why she had taken his “vacation time instead of sick leave.”
McAlpin’s defiance prompted Town President Grice to in-
tervene. Grice sent McAlpin a reminder that stated, “the Chief of
Police, Town Attorney, and Clerk work at the ‘Pleasure of the
Council.’” Grice requested that McAlpin return the Town’s truck
to the Police Department until he returned to work, citing an ex-
ample of another employee who asked to do the same and noting
that he had “ignored” her previous request. Grice also requested
that McAlpin return the “‘Town[’]s’ key to the Chief[’]s office back
to the Police Department until [he was] able to return to work.”
6. Contacting the Town Attorney
McAlpin contacted Town Attorney Guy Green. He con-
tends he did so in response to the Town Council’s action at its Sep-
tember 11, 2018, meeting, where the Council proposed placing
McAlpin under the direct supervision of Bell. The Town Council
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did so later that year. McAlpin believed this personnel decision vi-
olated the Town Charter. Green agreed with McAlpin and sent a
letter to the Town Council advising it that its action was improper.
President Grice responded to the letter from Green, stating that it
was “reprehensible” for McAlpin to contact Green. Green was ul-
timately terminated at the same meeting at which McAlpin was
terminated.
D. McAlpin’s Termination from the Sneads Police Depart-
ment
McAlpin returned the police-department truck on Septem-
ber 29, 2018, after another follow-up email from Bell, by parking in
front of a “no parking” sign, locking the truck, and keeping the
keys. McAlpin admitted that he instructed a colleague to return
the truck but to keep the keys and return them to him.
At an October 9, 2018, meeting, the Town Council voted 4-
to-1 to terminate McAlpin from the Sneads Police Department.
McAlpin’s formal termination form identified the reason for his
separation as “violating agency policy.” President Grice led the
motion to terminate McAlpin and gave the following reasons,
among others, in support of the motion: McAlpin’s refusal to stop
overtime and comp time; his “excessive” overspending by Police
Department and constant budget shortfalls; under his leadership,
questionable department purchases when the town has experi-
enced extreme budget shortfalls; consistent gross insubordination,
including asking the town’s attorney if he was required to follow
President Grice’s instructions; his refusal to comply with public-
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records law; and his dilatory behavior in refusing to return the
truck and, upon finally returning the truck, but refusing to return
the key. McAlpin, however, was not in attendance at the October
9 meeting.
Joining President Grice, Councilmen Pettis, Johnson, and
Lewis voted “yes” on the motion. In an affidavit filed during the
litigation, Councilman Pettis explained he voted “yes” because
McAlpin showed constant insubordination, refused to cooperate
with Manager Bell’s new overtime and comp time rules, and
showed no interest in having a working relationship with Pettis. In
a separate affidavit, Councilman Johnson offered similar reasons
for his “yes” vote as Councilman Pettis, adding that McAlpin had
shown no interest in working with the Town Council or accepting
the members as his superiors. For example, Johnson stated during
his deposition that McAlpin, in a discussion about the Town of
Sneads’s budget, told him, “I don’t care what y’all do about the
budget . . . . All I care about is the police department . . . . I haven’t
done anything [regarding the budget]. . . . I can tell you what to do,
y’all give up y’all checks and that will help the budget.”
E. McAlpin’s Lawsuit Against Defendants
McAlpin initially filed a two-count complaint in state court
against the Town of Sneads for retaliation under the FWA and for
retaliation and interference under the FMLA. McAlpin later
amended his complaint, adding the individual defendants and
bringing First Amendment retaliation claims against them and the
Town of Sneads under 42 U.S.C. § 1983. In total, McAlpin’s
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amended complaint alleged eight counts against Defendants: (1)
one count of FWA retaliation against the Town of Sneads; (2) one
count of FMLA retaliation and interference against the Town of
Sneads; and (3) six separate counts of First Amendment retaliation
under § 1983 against the Town of Sneads and the individual defend-
ants, Manager Bell, Councilman Pettis, Councilman Johnson, Pres-
ident Grice, and Clerk Griffin. The Town of Sneads removed the
action to the Northern District of Florida, and the district court de-
nied McAlpin’s motion to remand.
Defendants moved for summary judgment, and the district
court granted their motion as to all of McAlpin’s claims. The dis-
trict court summarized McAlpin’s FWA claim, noting that McAlpin
claimed he engaged in seven “protected activities”:
(1) he told Grice about Pettis’s and Johnson’s criminal
history and provided her supporting documents; (2)
he passed along Wright’s statement reporting Grif-
fin’s alleged theft to the FDLE; (3) he voiced concerns
about the midnight dispatch position at Town Coun-
cil meetings and on Facebook; (4) he told Pettis that
removal of a disciplinary memo violated the Public
Records Act; (5) he delivered a “whistleblower” letter
to the Town Council; (6) he emailed Bell about her
alleged improper accounting for his leave time; and
(7) he verbally complained to Town Attorney Green
that the Town Council “illegally” placed Bell over
him as his supervisor.
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The district court found, however, that none of these activities
were protected under the FWA “because most were oral (and not
in a signed written complaint) and the ones that were in writing
were not made to an appropriate local official and/or did not report
the type of information described in” Florida Statute § 112.3187(5).
And, as to the “whistleblower” letter, the district court explained
that it was not protected “because it did not identify the substance
of the suspected criminal conduct, there is no evidence that the
Town Council knew what conduct the letter was referring to, and
the underlying statement provided to the FDLE was written by
someone else.”
As to his FMLA claims, the district court granted summary
judgment on McAlpin’s claims of FMLA interference and retalia-
tion. The district court found that the “Return to Work/School”
notes McAlpin submitted from the medical clinic were insufficient
to trigger FMLA protection because he was required to specify the
medical reason for his absence. However, the district court found
that the Town of Sneads was given sufficient notice that McAlpin’s
leave was potentially FMLA-qualifying when he submitted a com-
pleted FMLA form several days before his termination. Turning to
whether the Town of Sneads had articulated a legitimate, nondis-
criminatory reason for the termination, the district court found
that the Town of Sneads had done so, i.e., that McAlpin was termi-
nated for being insubordinate and unhelpful to the Town of
Sneads’s efforts to address budgetary issues before he took his
leave. The district court further found that McAlpin’s argument
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that the Town of Sneads’s proffered reason was pretextual was re-
futed by the record evidence.
Finally, on his First Amendment retaliation claims, the dis-
trict court found “most of the speech . . . [was] not constitutionally
protected because it involved matters of private concern, not pub-
lic interest; it was communicated to private individuals, not the
public at large; or it was motivated by [McAlpin’s] self-interest or
was part of his official duties.” The district court did find two in-
stances of protected speech: (1) McAlpin’s Facebook post and (2)
his concerns raised at the Town Council meetings about the mid-
night dispatch position. However, the district court determined
that McAlpin could not meet his burden of proving that either of
these two instances of speech played a “substantial part” in Defend-
ants’ decision to terminate his employment. Specifically, as to the
Facebook post, it was undisputed that only one Councilmember—
Lewis, who was not a defendant—and possibly Manager Bell, who
was not a decisionmaker, were aware of the post at the time of the
termination. And as to the concerns raised by McAlpin about the
midnight dispatch position, the district court concluded that “the
undisputed evidence establishes that the Town would have made
the same [termination] decision” even if McAlpin had not spoken
up. Further, the district court ruled that his claims against Manager
Bell and Clerk Griffin failed because “(1) it is undisputed that the
Town Council (and not Bell or Griffin) made the decision to termi-
nate [McAlpin] . . . and (2) . . . there is no evidence that Bell ever
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even recommended that the Councilmembers remove [McAlpin]
from his position.”
McAlpin timely appealed.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de
novo. Carithers v. Mid-Continent Cas. Co., 782 F.3d 1240, 1245
(11th Cir. 2015). Summary judgment is appropriate if, based on
materials in the record, “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judg-
ment as a matter of law.” Fed. R. Civ. P. 56(a). We view all the
facts and reasonable inferences in the light most favorable to the
nonmoving party. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1303
(11th Cir. 2009).
III. ANALYSIS
A. Applicable Legal Standards
McAlpin presents no direct evidence of retaliatory and dis-
criminatory animus. Because he bases his claims on circumstantial
evidence, we must analyze his three substantive claims under the
applicable burden-shifting framework.
We analyze McAlpin’s FWA claim and FMLA retaliation
claim under the same burden-shifting framework set forth by the
United States Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 801–05 (1973). See Sierminski v. Transouth
Fin. Corp., 216 F.3d 945, 950 (11th Cir. 2000) (applying the burden-
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shifting framework of Title VII retaliation claims to FPWA claims);
Matamoros v. Broward Sheriff’s Office, 2 F.4th 1329, 1337 (11th
Cir. 2021) (applying McDonnell Douglas to FMLA claims). Under
this framework, the plaintiff bears the initial burden of proving his
prima facie case. Sierminski, 216 F.3d at 950. If the plaintiff suc-
cessfully establishes a prima facie case, “the burden shifts to the de-
fendant to proffer a legitimate reason for the adverse action.” Id.If the defendant can do so, “[t]he burden then shifts back to the
plaintiff to prove by a preponderance of the evidence that the ‘le-
gitimate’ reason is merely pretext for prohibited, retaliatory con-
duct.” Id. (quoting Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460
(11th Cir. 1998)); accord Matamoros, 2 F.4th at 1337.
In order to establish a prima facie case for either a FWA
claim or a FMLA retaliation claim, the plaintiff must show that: “(1)
he engaged in statutorily protected expression; (2) he suffered an
adverse employment action; and (3) there is some causal relation
between the two events.” Rice-Lamar v. City of Fort Lauderdale,
853 So. 2d 1125, 1132–33 (Fla. Dist. Ct. App. 2003) (FWA claims);
Sierminski, 216 F.3d at 950 (same); Schaaf v. Smithkline Beecham
Corp., 602 F.3d 1236, 1243 (11th Cir. 2010) (FMLA retaliation
claims).
In a FMLA interference claim, the plaintiff must prove that
he was “denied a benefit to which [he] was entitled under the
FMLA.” Schaaf, 602 F.3d at 1241 (quoting Martin v. Brevard Cnty.
Pub. Schs., 543 F.3d 1261, 1266-67 (11th Cir. 2008)). The ordinary
rule is that the employer’s “motives are irrelevant to an
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20 Opinion of the Court 20-13278
interference claim,” but in employment termination suits, an em-
ployer may defend against a FMLA interference claim by establish-
ing that the employee would have been terminated anyway. Bat-
son v. Salvation Army, 897 F.3d 1320, 1331 (11th Cir. 2018) (quot-
ing Strickland v. Water Works & Sewer Bd. of City of Birmingham,
239 F.3d 1199, 1208 (11th Cir. 2001)),
First Amendment retaliation claims are also assessed under
a burden-shifting framework, albeit a modified one, as set forth by
this Court in Bryson v. City of Waycross, 888 F.2d 1562, 1565–66
(11th Cir. 1989). First, the plaintiff must make a prima facie case by
showing, by a preponderance of the evidence, that:
(1) the employee’s speech is on a matter of public con-
cern; (2) the employee’s First Amendment interest in
engaging in the speech outweighs the employer’s in-
terest in prohibiting the speech to promote the effi-
ciency of the public services it performs through its
employees; and (3) the employee’s speech played a
“substantial part” in the employer’s decision to de-
mote or discharge the employee.
Anderson v. Burke County, 239 F.3d 1216, 1219 (11th Cir. 2001)
(quoting Bryson, 888 F.2d at 1565); Battle v. Bd. of Regents, 468
F.3d 755, 759–60 (11th Cir. 2006). If he or she can make a prima
facie showing, the burden shifts to the employer to show, by a pre-
ponderance of the evidence, that it would have reached the same
decision in the absence of the protected speech. Bryson, 888 F.2d
at 1566.
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20-13278 Opinion of the Court 21
B. McAlpin’s FWA Claim Against the Town of Sneads
The FWA prohibits a public employer from taking an ad-
verse personnel action against an employee “who reports to an ap-
propriate agency violations of law on the part of a public em-
ployer . . . that create a substantial and specific danger to the pub-
lic’s health, safety, or welfare.” Fla. Stat. § 112.3187(2); accord id.§ 112.3187(4)(a) (“An agency or independent contractor shall not
dismiss, discipline, or take any other adverse personnel action
against an employee for disclosing information pursuant to the pro-
visions of this section.”). Here, it is undisputed that McAlpin has
established the second prong of his prima facie case, i.e., that he
suffered an adverse employment action. See id. § 112.3187(3)(c)
(stating that discharge of employment is an adverse personnel ac-
tion under the FWA). Turning to the first prong of his prima facie
case, McAlpin must show that his speech and conduct were “statu-
torily protected.” Under the FWA, for the disclosure of infor-
mation to be a “statutorily protected activity,” the burden is on the
plaintiff to show that he disclosed (1) protected information (2) to
an individual or entity identified in the statute (3) in a protected
manner. See id. § 112.3187(5)–(7); Rice-Lamar, 853 So. 2d at 1133.
As discussed below, McAlpin has not established that he satisfied
all three of these requirements for each instance of his speech that
he claims was protected under the FWA.
1. Protected Information
Whether the FPWA protections apply in a given case de-
pends on the nature of the information disclosed. § 112.3187(5).
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22 Opinion of the Court 20-13278
Both the text and structure of the FWA make clear that protected
information is narrow in scope. The nature of the information dis-
closed “must include” the content enumerated in either Florida
Statute § 112.3187(5)(a) or (b):
(a) Any violation or suspected violation of any fed-
eral, state, or local law, rule, or regulation committed
by an employee or agent of an agency or independent
contractor which creates and presents a substantial
and specific danger to the public’s health, safety, or
welfare.
(b) Any act or suspected act of gross mismanagement,
malfeasance, misfeasance, gross waste of public
funds, suspected or actual Medicaid fraud or abuse, or
gross neglect of duty committed by an employee or
agent of an agency or independent contractor.
(Emphasis added).
McAlpin claims that he made the following protected re-
ports and disclosures under subsection (5). He contends that his
report about Clerk Griffin’s alleged theft constituted a disclosure of
a suspected violation of law and a suspected act of gross misfea-
sance and malfeasance and that his public opposition statements to
budget cuts in the police department were disclosures of gross mis-
management. Additionally, he asserts that he notified Pettis that
removing a disciplinary memorandum from an employee’s person-
nel file violated Florida’s public records laws and that his whistle-
blowing note to the Town Council referenced “criminal conduct.”
Further, he contends that his emails to Bell about his sick leave
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20-13278 Opinion of the Court 23
disclosed gross mismanagement and misfeasance and that his re-
port to Green that the Town Council had improperly and illegally
placed Bell over him are protected under subsection (5).
McAlpin additionally asks us to read the statute expansively
and argues that, in addition to these express enumerations in sub-
sections (5)(a) and (5)(b), the FWA’s broad wording provides for
something like a catch-all provision that includes “any other abuse”
as information that would be protected under the law. McAlpin
bases his argument on Florida Statute § 112.3187(2), claiming that
the FWA protects the disclosure of “improper use of governmental
office, gross waste of funds, or any other abuse or gross neglect of
duty on the part of an agency, public officer, or employee.” (em-
phasis added). And, based on subsection (2), he asserts that his dis-
closure of the criminal records of Pettis and Johnson, his report of
Griffin’s alleged involvement in a theft, his stated concerns about
cutting the midnight dispatch position, and his emails to Bell about
his sick leave were regarding “any other abuse” and, thus, were
protected information under the FWA.
We first address McAlpin’s subsection (2) argument. The
polestar of statutory interpretation is to begin (and end) with the
plain language of the statute. Octane Fitness, LLC v. ICON Health
& Fitness, Inc., 572 U.S. 545, 553 (2014). Nonetheless, relying on
Florida state court descriptions of the FWA as “remedial in nature”
and thus to be given “a liberal construction,” Nazzal v. Fla. Dep’t
of Corr., 267 So. 3d 1094, 1096 (Fla. Dist. Ct. App. 2019); accord
Irven v. Dep’t of Health & Rehab. Servs., 790 So. 2d 403, 405–06
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24 Opinion of the Court 20-13278
(Fla. 2001), McAlpin argues that we should read subsection (2) as a
catch-all provision to subsection (5)’s definition of protected infor-
mation under the FWA.
We conclude that McAlpin’s interpretation of the statute is
an illogical and atextual one. As the Town of Sneads correctly
point out, the phrase “any other abuse” derives from a subsection
clearly titled “Legislative Intent,” not from the subsection expressly
delineating the statutorily provided requirements for information
covered by the statute. Compare Fla. Stat. § 112.3187(2) (“It is fur-
ther the intent of the Legislature . . . to prevent agencies or inde-
pendent contractors from taking retaliatory action against any per-
son who discloses information . . . alleging improper use of govern-
mental office, gross waste of funds, or any other abuse . . . .”), with
id. § 112.3187(5) (“The information disclosed under this section
must include . . . .” (emphasis added)). When choosing whether to
follow the general statement of legislative intent in subsection (2)
or the specific directive about the content of the disclosure in sub-
section (5), we must follow the latter. See Antonin Scalia & Bryan
A. Garner, Reading Law: The Interpretation of Legal Texts § 28, at
183 (2012) (“If there is a conflict between a general provision and a
specific provision, the specific provision prevails.”). The alternative
approach would require us to ignore the mandatory language in
subsection (5). See id. § 26, at 174 (“If possible, every word and
every provision is to be given effect.”). And although the Florida
Supreme Court in Irven stated that the FWA “establishes a wide
scope of activity that may give rise to its protections,” see 790 So.
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20-13278 Opinion of the Court 25
2d at 406, and referred to subsection (2) as one example of the broad
statutory language used by the Florida Legislature, nothing in Ir-
ven requires (or even suggests) that we ignore subsection (5)’s spe-
cific directive about the content of the disclosure. The plain mean-
ing of “must include” is clear, and McAlpin’s request that we resort
to liberal construction of that language as an interpretive aid does
not permit us to disregard this legislative mandate and substitute
“may include” in its place. And McAlpin has not identified case law
from Florida courts reading subsection (2) as a category of pro-
tected information under subsection (5) of section 112.3187.
Accordingly, based on the unambiguous language and struc-
ture of the statute, McAlpin’s disclosures constitute “statutorily
protected activity” only if they satisfy either of the two enumerated
requirements of subsection (5). Reviewing the disclosures McAlpin
identifies, we hold that they do not satisfy subsection (5). Based on
the record evidence, the disclosures that McAlpin identifies did not
implicate either “[a]ny violation or suspected violation of any fed-
eral, state, or local law, rule, or regulation . . . which creates and
presents a substantial and specific danger to the public’s health,
safety or welfare,” id. § 112.3187(5)(a) (emphasis added), or “[a]ny
act or suspected act of gross mismanagement, malfeasance, misfea-
sance, gross waste of public funds, suspected or actual Medicaid
fraud or abuse, or gross neglect of duty,” id. § 112.3187(5)(b).
McAlpin’s most colorable argument relates to his disclosure of
Councilmen Pettis’s and Johnson’s 1991 arrests. There is nothing
in the record, however, to suggest that arrests which occurred over
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26 Opinion of the Court 20-13278
twenty-five years ago “create[] or present[] a substantial and spe-
cific danger to the public’s health, safety, or welfare.” See id.
§ 112.3187(5)(a).
2. Disclosure to an Individual or Entity Identified in
§ 112.3187(6)
Protected information must be disclosed to one of the indi-
viduals or entities identified in the statute. Id. § 112.3187(6). When
the disclosure concerns a local governmental entity, the plaintiff
must have disclosed the information “to a chief executive officer as
defined in [section] 447.203(9) or other appropriate local official.”
Id. Section 447.203(9) provides that “‘Chief executive officer’ for
the state shall mean the Governor and for other public employers
shall mean the person, whether elected or appointed, who is re-
sponsible to the legislative body of the public employer for the ad-
ministration of the governmental affairs of the public employer.”
Here, there is no dispute that the disclosure McAlpin made
to the FDLE does not satisfy the subsection (6) requirement ,be-
cause the FDLE is not “an appropriate local official” as contem-
plated by the statute. See Quintini v. Panama City Hous. Auth.,
102 So. 3d 688, 690 (Fla. Dist. Ct. App. 2012) (concluding that
“FDLE is a state agency, not a local official” for purposes of section
112.3187(6)). However, we do not address or determine whether
the recipients of McAlpin’s other disclosures qualify as “other ap-
propriate local official[s]” under subsection (6) of the statute since
McAlpin’s FWA claim fails for other reasons under the statute.
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20-13278 Opinion of the Court 27
3. Protected Manner
Finally, the FWA requires the plaintiff, when disclosing in-
formation on his own initiative, to have disclosed the information
“in a written and signed complaint.” Fla. Stat. § 112.3187(7). How-
ever, under subsection (7), the signed-writing requirement does
not apply to individuals “who are requested to participate in an in-
vestigation, hearing, or other inquiry conducted by any agency or
federal government entity.”
McAlpin argues that it does not matter that many of his dis-
closures were oral, claiming that he made those disclosures in an
“investigation” or “other inquiry” under subsection (7). We find
this argument without merit. There is no evidence suggesting that
the oral disclosures to FDLE, Grice, the Town Council, Pettis, or
Green were “requested” as part of “an investigation, hearing, or
other inquiry conducted by any agency or federal government en-
tity.” Id.Additionally, as the district court found, while McAlpin’s
August 9, 2018, Memorandum was in writing and signed, the un-
derlying statement provided to the FDLE was not written by McAl-
pin himself. But even assuming that Memorandum met subsection
(7)’s requirements, the disclosure failed to satisfy the requirements
of subsections 112.3187(5) and (6). Specifically, not only was it not
made to an individual or entity identified in the FWA, but it did not
contain protected information. As discussed, the record establishes
that none of the Councilmembers understood what the Memoran-
dum was referring to when McAlpin delivered it to them and the
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28 Opinion of the Court 20-13278
information that it involved an allegation of theft against Clerk
Griffin was only learned during discovery in the litigation.1
Because the record evidence does not establish a prima facie
case for retaliation under the FWA, we affirm the district court’s
grant of summary judgment on that claim.
C. McAlpin’s FMLA Claims Against the Town of Sneads
McAlpin also contends that the district court erred in granting
summary judgment on his claims of FMLA interference and retali-
ation. We disagree.
Absent direct evidence of retaliatory intent, to establish a
prima facie case of a FMLA retaliation claim, the plaintiff must
prove: (1) he engaged in a “statutorily protected activity”; (2) he
suffered an adverse employment action; and (3) there is some
causal relation between the two events. Schaaf, 602 F.3d at 1243.
Defendants concede that McAlpin’s medical leave for alleged phys-
ical ailments from stress and anxiety qualifies as protected activity
under the FMLA. And, as with the FWA claim, there is no dispute
that McAlpin’s termination satisfies the second prong of an FMLA
1 McAlpin also contends that the emails he sent to Bell, including one email in
which he complained about Bell taking his vacation time instead of allowing
him to use sick leave satisfied subsection (7) as he ended the email with the
signature, “Chief of Police, Burt McAlpin.” Even assuming those emails satis-
fied the FWA’s signed-writing requirement, those emails, as explained above,
were not protected because they did not disclose the types of wrongdoing
listed in section 112.3187(5).
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20-13278 Opinion of the Court 29
prima facie case. See Hurlbert v. St. Mary’s Health Care Sys., Inc.,
439 F.3d 1286, 1298 (11th Cir. 2006) (“[T]ermination is certainly an
adverse employment action”). Therefore, we limit our analysis to
the third prong—the causal connection between the two. The par-
ties agree that, for the causal connection requirement, the plaintiff
must prove only “that the protected activity and the negative em-
ployment action are not completely unrelated.” Olmsted, 141 F.3d
at 1460 (quoting EEOC v. Reichhold Chem., Inc., 988 F.2d 1564,
1571–72 (11th Cir. 1993)). While “[t]he burden of causation can be
met by showing close temporal proximity between the statutorily
protected activity and the adverse employment action[,] . . . mere
temporal proximity, without more, must be ‘very close.’” Thomas
v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (quot-
ing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)).
We first address the FMLA retaliation claim. Here, the dis-
trict court determined that “[t]he close temporal proximity be-
tween [the October 5, 2018,] FMLA request and his termination on
October 9, 2018, is sufficient to create a genuine issue of material
fact of causal connection.” The Town of Sneads, however, insists
McAlpin cannot make this showing because the extent of his evi-
dence is limited “only” to the temporal proximity of his protected
activity and his termination. We note that this is not entirely accu-
rate. McAlpin also points to Green’s firing as additional evidence,
contending that Green’s “siding with McAlpin in his interpretation
of the governing law” resulted in the Town Council terminating
Green’s employment at the same meeting as his own termination.
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30 Opinion of the Court 20-13278
Given McAlpin’s showing of temporal proximity, coupled with his
showing that the Town Council terminated Green around the
same time for related reasons, we will assume McAlpin established
a prima facie case for FMLA retaliation for purposes of summary
judgment.
As a result, the burden now shifts to the Town of Sneads to
“proffer a legitimate, non-retaliatory reason for the adverse em-
ployment action.” Olmsted, 141 F.3d at 1460. The record evidence
establishes that the Town of Sneads did so. According to the Town
Council’s and Manager Bell’s well-documented grievances against
McAlpin, the Town Council viewed McAlpin as insubordinate and
obstinate. For example, McAlpin refused to “work with” the Town
Council in addressing the Town of Sneads’s budget crisis.
Because the Town of Sneads has met its burden to proffer a
legitimate, nonretaliatory reason for McAlpin’s termination, the
burden shifts back to McAlpin to establish that the reasons prof-
fered by the Town of Sneads were false and merely a pretext for his
termination. Matamoros, 2 F.4th at 1337. A plaintiff can show pre-
text by demonstrating “weaknesses, implausibilities, inconsisten-
cies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could
find them unworthy of credence.” Id. (quoting Alvarez v. Royal
Atl. Devs., Inc., 610 F.3d 1253, 1265 (11th Cir. 2010)).
McAlpin argues that the record evidence shows “immediate
cause and effect” following his initial disclosure of Councilmen Pet-
tis’s and Johnson’s arrests up until his termination. He offers
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20-13278 Opinion of the Court 31
several arguments as to why the Town of Sneads stated reason for
terminating him is actually a pretext. First, McAlpin argues the
Town Council showed a “downward spiral of harassment, hostile
treatment, and retaliation” after his initial disclosure of Council-
men Pettis’s and Johnson’s arrests. He further contends that after
Bell’s hire, she “immediately began to target” him regarding comp
time, overtime, and leave requests. We find no support for this in
the record evidence. Indeed, Bell was hired as the “outsider” and
began tightening comp time and overtime policies in all depart-
ments on her second day in office.
Second, McAlpin argues that any claims by the Town of
Sneads that he was “insubordinate” are rebutted by the fact that he
ultimately returned his truck and that he intended to return to
work after his medical leave. However, the Sneads Police Depart-
ment’s Policy and Procedures define the term “insubordination” as
“any act of defiance, disobedience, dissension or resistance to au-
thority” and provide that “[a]ny form of insubordination . . . will be
subject to disciplinary action up to and including dismissal. And,
as detailed above, the record establishes that McAlpin took multi-
ple acts that the Town Council viewed as insubordinate, e.g., re-
fusing to follow Grice’s and Bell’s directives.
Third, McAlpin argues that the individual Councilmembers
“could not agree on the reasons for [his] termination” and that this
can be evidence of pretext. See Hurlbert, 439 F.3d at 1298 (stating
that “an employer’s failure to articulate clearly and consistently the
reason for an employee’s discharge may serve as evidence of
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32 Opinion of the Court 20-13278
pretext”). While it is true that the Councilmembers offered differ-
ing, nondiscriminatory examples as to how McAlpin was insubor-
dinate based on their own observations and experiences with
McAlpin, we hold that it is not evidence of pretext for an employer
to supply more than one “non-discriminatory basis for [McAlpin’s]
termination” where the reasons are not necessarily inconsistent.
Cf. Tidwell v. Carter Prods., 135 F.3d 1422, 1428 (11th Cir. 1998).
The record shows that a majority of the Town Council agreed that
McAlpin was insubordinate and should be terminated from his po-
sition. Those differing examples of insubordination do not estab-
lish that the nondiscriminatory reason the Town of Sneads pro-
vided for McAlpin’s termination—insubordination—was pre-
textual. See id.Finally, McAlpin contends that the fact that the Town Coun-
cil did not follow its “progressive discipline policy” in its Policy
Manual and instead moved directly to terminate him shows pre-
text. We disagree. The Town of Sneads’s discipline policy states
that “the most flagrant and serious acts of gross misconduct” can
provide grounds for “[i]immediate termination” and provides a
nonexclusive list of such acts. The discipline policy further explic-
itly lists “[i]nsubordination” as a ground for immediate termina-
tion. Thus, we conclude that McAlpin’s termination was not evi-
dence of pretext, as it did not violate the Town of Sneads’s standard
procedure to fire an employee, such as McAlpin, on the basis of
insubordination.”
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20-13278 Opinion of the Court 33
Because McAlpin did not meet his burden in establishing
that the Town of Sneads’s proffered legitimate, nondiscriminatory
reason for his termination was pretextual, we affirm the district
court’s grant of summary judgment as to the FMLA retaliation
claim.
We turn next to McAlpin’s interference claim under the
FMLA. To succeed under a FMLA interference claim, the plaintiff
must show only that he was “denied a benefit to which [he] was
entitled under the FMLA.” Schaaf, 602 F.3d at 1241 (quoting Mar-
tin v. Brevard Cnty. Pub. Schs., 543 F.3d 1261, 1266–67 (11th Cir.
2008)). Generally, “‘the employer’s motives are irrelevant’ to an
interference claim.” Batson, 897 F.3d 1320, 1331 (11th Cir. 2018)
(quoting Strickland, 239 F.3d at 1208). But “[w]here the claim is
based on an employee’s termination, . . . an employer may affirm-
atively defend against the claim by establishing that it would have
terminated the employee regardless of [his] request for or use of
FMLA leave.” Id. Because, as we have already explained, the rec-
ord evidence shows that the Town of Sneads terminated McAlpin
for insubordination, not his invocation of the FMLA, we conclude
that the district court’s grant of summary judgment as to McAlpin’s
FMLA interference claim was also proper and affirm.
D. McAlpin’s First Amendment Claims
McAlpin’s remaining claims are for First Amendment retali-
ation filed pursuant to § 1983. As a general principle, “public em-
ployees do not surrender all their First Amendment rights by rea-
son of their employment.” Garcetti v. Ceballos, 547 U.S. 410, 417
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34 Opinion of the Court 20-13278
(2006). Rather, they have a constitutional right, “in certain circum-
stances, to speak as a citizen addressing matters of public concern.”
Id. Stated plainly, the First Amendment safeguards a public em-
ployee’s right, as a citizen, to participate in discussions involving
public affairs; it does not empower public employees to “constitu-
tionalize” any grievances they have with their employers. Alves v.
Bd. of Regents of the Univ. Sys. of Ga., 804 F.3d 1149, 1160 (11th
Cir. 2015) (quoting Garcetti, 547 U.S. at 420).
Again, McAlpin must first make a prima facie showing, by a
preponderance of the evidence, that:
(1) the employee’s speech is on a matter of public con-
cern; (2) the employee’s First Amendment interest in
engaging in the speech outweighs the employer’s in-
terest in prohibiting the speech to promote the effi-
ciency of the public services it performs through its
employees; and (3) the employee’s speech played a
“substantial part” in the employer’s decision to de-
mote or discharge the employee.
Anderson, 239 F.3d at 1219 (quoting Bryson, 888 F.2d at 1565); ac-
cord Moss v. City of Pembroke Pines, 782 F.3d 613, 617–18 (11th
Cir. 2015). Here, we need only address the third prong of the anal-
ysis because, based on the record evidence, McAlpin cannot show,
as a matter of law, that his speech played a substantial part in the
Town Council’s termination decision. See Moss, 782 F.3d at 618(noting a court can resolve the issue of whether speech was a sub-
stantial motivating factor in a plaintiff’s termination where “the ev-
idence is undisputed”). Indeed, there is no evidence in the record
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20-13278 Opinion of the Court 35
that even suggests the Town Council terminated McAlpin because
of any First Amendment protected speech. Just as the record evi-
dence established Defendants’ legitimate, nonretaliatory reasons
for terminating McAlpin as to his FWA and FMLA claims, i.e., in-
subordinate actions, that evidence establishes that McAlpin’s
speech was not a substantial reason for his firing.
Accordingly, we conclude that McAlpin cannot make a
prima facie case as to his First Amendment retaliation claims
against Defendants and affirm the grant of summary judgment as
to those claims.
IV. CONCLUSION
For the reasons stated, summary judgment in favor of De-
fendants was proper, and we affirm the district court’s entry of
judgment for the Defendants.
AFFIRMED.