IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PANAMA CITY DIVISION

TOLBERT P. SEIFFERT,

Plaintiff, 

vs. CASE NO. 5:11-cv-130/RS-GRJ

FLORIDA DEPARTMENT OF

CORRECTIONS,

Defendant. 

__________________________________/ 

ORDER

Before me are Defendant’s Motion for Summary Judgment (Doc. 41), Memorandum in 

Support (Doc. 44), and Statement of Facts (Doc. 43), and Plaintiff’s Response in Opposition 

(Doc. 52) and Statement of Facts (Doc. 51). 

Plaintiff has brought a two count complaint alleging causes of action under Florida’s 

Whistleblower Act, and federal retaliation statute. (See Doc. 1). 

Background

Plaintiff is an employee with Defendant Florida Department of Corrections (“DOC”). On

March 17, 2008, Plaintiff testified in a sexual harassment suit filed by a fellow employee. He 

claims that Defendant retaliated against him for this protected activity. On November 3, 2008, 

Plaintiff was suspended for a period of ten days. Plaintiff filed an appeal with the Public 

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Employee Relations Committee (“PERC”) which resulted in a January 2009 settlement 

agreement. (Doc. 37, Attach. 1&2). 

On August 13, 2009, Defendant terminated Plaintiff’s employment. (Doc. 32, Attach. 

11). Plaintiff contends that the termination was caused by Plaintiff’s disclosures of misfeasance, 

malfeasance, and gross misconduct which is protected by Florida’s whistleblower statute. 

(Compl., ¶ 14). Plaintiff appealed his termination to PERC pursuant to FLA. STAT. §110.227. 

This process resulted in a December 2009 order that Defendant was to “reinstate [Plaintiff] to his 

former position or a position having the same degree of responsibility as his former position.” 

Defendant was also ordered to pay Plaintiff back pay and benefits. Id. 

Standard of Review

Summary judgment is appropriate when “there is no genuine issue as to any material fact 

and . . . the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56 (c). In other 

words, the basic issue before the court is “whether the evidence presents a sufficient 

disagreement to require submission to a jury or whether it is so one-sided that one party must 

prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S. Ct. 2505, 

2512 (1986). The moving party has the burden of showing the absence of a genuine issue as to 

any material fact, and in deciding whether the movant has met this burden, the court must view 

the movant’s evidence and all factual inferences arising from it in the light most favorable to the 

nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Fitzpatrick v. City of 

Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). Thus, if reasonable minds could differ on the 

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inferences arising from undisputed facts, then a court should deny summary judgment. Miranda 

v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank 

& Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)). However, a mere 

‘scintilla’ of evidence supporting the nonmoving party's position will not suffice; there must be 

enough of a showing that the jury could reasonably find for that party. Walker v. Darby, 911 

F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 251). 

Analysis

Whistleblower Act

The parties agree that Plaintiff cannot recover for damages for his August 2009 

termination. (See Doc. 52, p.2). This would result in a double recovery as the PERC has already 

made Plaintiff whole for his termination. Plaintiff contends that his whistleblower retaliation 

claim seeks to redress alleged violations that occurred after the PERC’s order. (Doc. 52, p.2). 

Namely, Plaintiff claims that Defendant illegally placed Plaintiff at Holmes Correctional 

Institution, rather than the Northwest Florida Reception Center (“NWFRC”) which harmed his 

career and increased his travel expenses. Id. Because these allegations occurred subsequent to 

the PERC order, they are not barred, and summary judgment is inappropriate. 

Retaliation 

The parties agree that Plaintiff cannot recover for damages for his November 3, 2008,

suspension because of the January 2009 settlement agreement. (Doc. 52, p.4). Plaintiff 

contends that his retaliation claim seeks to redress alleged violations that occurred after the 

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settlement agreement. (Doc. 52, p.4). These post-settlement allegations are appropriate for 

consideration. Defendant nevertheless asserts that Plaintiff has not stated a viable claim. 

To establish a prima facie case of retaliation under Title VII, 42 U.S.C. § 2000e et seq., 

Plaintiff must show that (1) he engaged in statutorily protected expression; (2) he suffered an 

adverse employment action; and (3) the adverse action was causally related to the protected 

activity. Webb-Edwards v. Orange County Sheriff's Office, 525 F.3d 1013, 1028 (11th Cir. 

2008). 

Defendant claims that Plaintiff cannot show causation. (Doc. 44, p.15). Specifically, 

Defendant claims that Major John Godwin and Warden Samuel Culpepper were not employed at 

NWFRC while Plaintiff testified in the sexual harassment suit. Id. at 16. Godwin and Culpepper 

deny any knowledge of Plaintiff’s involvement in that case. Id. Further, Defendant claims that 

the first alleged retaliatory event occurred almost four months after Plaintiff testified, which is

sufficiently long duration to defeat causation. 

Plaintiff has raised sufficient allegations to make it a question of fact whether the 

decision-makers had knowledge of his protected activities. He claims that it is implausible that 

they would not know because of their relationship with other DOC management officials. (Doc. 

52, p.9-10).

Turning to the timing of events, “in the absence of any other evidence of causation, a three 

and one-half month proximity between a protected activity and an adverse employment action is 

insufficient to create a jury issue on causation.” Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 

Fla. 2006) (citing Wascura v. City of South Miami, 257 F.3d 1238, 1248 (11th Cir. 2001)). 

Here, Plaintiff claims that the first alleged retaliatory events occurred within weeks after 

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his testimony. (Doc. 51, ¶45). Plaintiff claims that he was transferred to a different post and 

moved from the day shift to the third shift. Id. It is unclear from the facts alleged whether these

acts constitute adverse employment action. See Collado v. UPS, 419 F.3d 1143, 1159 (11th Cir. 

2005). Adverse employment action “constitutes significant change in employment status such 

as hiring, firing, failing to promote, reassignment with significantly different responsibilities or a 

decision causing a significant change in benefits." Webb-Edwards, F.3d at 1031 (citing 

Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)). Plaintiff has merely alleged that he 

had earned his post through seniority, and that the change in shift was against his wishes. (Doc. 

51, ¶44). He has not demonstrated that these actions created significantly different 

responsibilities or a change in benefits. Therefore, they cannot be considered in the context of 

causation. 

The first verifiable averse action, a written reprimand, was issued to Plaintiff on July 7, 

2008. This is nearly four months after his March 17, 2008 testimony.

1

Plaintiff contends that a 

host of other adverse action occurred after his testimony and before his termination. (Doc. 52, 

p.14). He now seeks to recover for those acts which occurred after the settlement agreement 

including improper discipline, and failure to reinstate his position at NWFRC. (Doc. 52, p.6). 

These post-settlement actions are at least a year removed from his testimony. Alone, the timeline 

of events would not be enough to establish causation. However, Plaintiff contends that 

statements by other employees buttress his causation argument. Sergeant Christopher Christmas 

stated he expected retaliation by Defendant for his testimony in this case. (Doc. 50, Attach. 18, p. 

 

1

Plaintiff may not recover for these events which precede the settlement agreement. However, Plaintiff argues that these 

early actions show that the chain of adverse actions, including those occurring after the settlement agreement, are causally 

related. 

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11-12). His expectations were based upon his observations regarding Defendant’s actions 

towards Plaintiff.2 Id. Taken together, Plaintiff has brought forth sufficient questions of 

material fact to make his prima facie case. 

Pretext

“Once plaintiff establishes a prima facie case by proving only that the protected activity 

and the negative employment action are not completely unrelated, the burden shifts to 

the defendant to proffer a legitimate reason for the adverse action.” Sierminski v. Transouth Fin. 

Corp., 216 F.3d 945, 950 (11th Cir. 2000). Here, Defendant contends that Plaintiff’s poor 

performance was the reason for its actions. This is a legitimate non-retaliatory reason. The 

burden now “shifts back to the Plaintiff to prove by a preponderance of the evidence that the 

‘legitimate’ reason is merely pretext for prohibited, retaliatory conduct. Sierminski, 216 F.3d at 

950. 

“A plaintiff can establish pretext by demonstrating such weaknesses, implausibilities, 

inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons 

for its action that a reasonable factfinder could find them unworthy of credence.” Hill v. Emory 

Univ., 346 Fed. Appx. 390, 394 (11th Cir. 2009) (unpublished) (citing Combs v. Plantation 

Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)). “A plaintiff is entitled to survive summary 

judgment, and judgment as a matter of law, if there is sufficient evidence to demonstrate the 

 

2

The affidavit of Thomas Brown, a former employee of Defendant, stated that he had observed a pattern of 

retaliatory action against officers who reported unlawful activity. (Doc. 50, Attach. 23, ¶4). However, Mr. Brown did not 

provide any specific details about Plaintiff’s case which demonstrates the motives for the adverse actions taken. His 

statement are not relevant for causation in this case. 

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existence of a genuine issue of fact as to the truth of each of the employer's proffered reasons for 

its challenged action.” Combs, 106 F.3d at 1529. 

Here, Plaintiff claims that he has refuted each and every performance deficiency alleged 

against him. And, Plaintiff claims and has provided some evidence that other similarly-situated 

co-workers were treated differently. (Doc. 52, p.18-20). Plaintiff’s contentions are sufficient to 

meet his burden. 

Entitlement to Damages

The parties agree that Plaintiff cannot recover for back pay. He also may not recover for 

the events leading to his termination or for any of the “facts or circumstances” which gave rise to 

the settlement agreement. (Doc. 37, Attach. 2). 

Finally, should this case go to trial, I do not intend to allow Plaintiff to re-litigate all of the 

events covered by the PERC order and the settlement agreement. While those events may serve 

as background to the current claims, their relevance may be outweighed by the potential to 

confuse the jury. 

The Motion for Summary Judgment (Doc. 41) is DENIED. 

ORDERED on December 8, 2011. 

/S/ Richard Smoak 

RICHARD SMOAK

UNITED STATES DISTRICT JUDGE 

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