[ PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 12

- 15988

________________________ D.C. Docket No. 0: 10

- cv - 61813

- DLG MICHAEL P. BRANNON, PSY.D. , individually ; MICHAEL P. BRANNON, PSY.D., P.A. , a Florida professional services corporation ; and THE INSTITUTE FOR BEHAVIORAL SCIENCES AND THE LAW, LLC , a Florida limited liability company , Plaintif fs

- Appellants,

versus HOWARD FINKELSTEIN, in his official capacity as Broward County Public Defender , Defendant

- Appellee

.

________________________ Appeal from the United States District Court for the Southern District of Florida

_________________________ (June 18, 2014) Before MARCUS , DUBINA, and WALKER, * Circuit Judges

.

* Honorable John M. Walker, Jr. , United States Court of Appeals for the Second Circuit, sitting by designation. Case: 12-15988 Date Filed: 06/18/2014 Page: 1 of 182 WALKER, Circuit Judge : Plaintiff Michael P. Brannon filed suit in the district court alleging that defend ant Howard Finkelstein reduced and ultimately terminated Brannon’s consulting work as a forensic psych ologist for the Broward County Public Defender’s office i n retaliation for Brannon ’s constitutionally protected testimony about a Florida state court judge . The United States District Court for the Southern District of Florida ( Donald L. Graham , Judge ) granted summary judgment to the defendant. We VACATE in pa rt, AFFIRM in part, and REMAND

. BACKGROUND We are mindful that this case comes before us on an appeal from a grant of summary judgment in favor of the defendant and that the facts must be taken in the light most favorable to the plaintiff. See Allen v. Tyson Foods, Inc. , 121 F.3d 642, 646 (11th Cir. 1997)

. Michael Brannon is a forensic psychologist and the sole owner of Michael P. Brannon, Psy.D., P.A., which owns fifty percent of t he Institute for Behavioral Sciences and the Law, LLC (collectively, the “ plaintiffs ” ). The other fifty percent is owned by Brannon’s business partner, Dr. Sherrie Bourg Carter. Until 2009, plaintiffs performed forensic psychology work for the office of the Broward County Public Defender, Howard Finkelstein. On December 6, 2007, Brannon testified before the Florida Judicial Case: 12-15988 Date Filed: 06/18/2014 Page: 2 of 183 Qualifications Committee that was convened to investigate charges that the Hon. Cheryl Aleman had mistreated a criminal defendant appearing before her. Brannon testified in Judge Aleman ’s favor to the ef fect that she was never hostile to him during his appearances before her as a witness. The parties do not dispute that this testimony is protected speech under the First Amendment. Although Finkelstein was not present during the Aleman hearing, he testif ied that he was “surprised” and “extremely disappointed” upon learning of Brannon’s testimony. Shortly after the Aleman hearing, Finkelstein ran into Michael Gottlieb, a private attorney who worked with Brannon. Gottlieb testified that Finkelstein

“ expre ssed dissatisfaction ” with Brannon ’s testifying on Judge Aleman’s behalf because Finkelstein felt , as Gottlieb put it, that nobody from the defense community should “support such a person who was essentially a prosecutor in a robe.” Gottlieb testified tha t “people thought of Judge Aleman as an evil witch,” but he did not ascrib e this statement to Finkelstein. According to Gottlieb, his conversation with Finkelstein was centered on “how could anybody testify on behalf of that evil witch.” Gottlieb “quickly ” called B rannon to tell him wh at Finkelstein had said because, as Gottlieb put it, Gottlieb was concerned that Finkelstein was going to curtail Brannon’s work. Brannon testified that after speaking to Gottlieb, he felt that he was “being or going to be discriminated against.” After Brannon’s

Case: 12-15988 Date Filed: 06/18/2014 Page: 3 of 184 testimony at the Aleman hearing, Finkelstein stopped exchanging pleasantries with Brannon and Bourg Carter.
F ollowing his December 2007 testimony about Judge Aleman, Brannon’s practice receive d less consulting work from the Public Defender’s office. I n fiscal year 2006

- 20 07, plaintiffs were paid $608,757 .5 0 by the Public Defender ’s office ; in fiscal year 2007

- 2008, they were paid $390,212 .00 ; and in 2008

- 20 09, the first full fiscal year following Brannon’s testimony at the Aleman hearing , plaintiffs were only paid $170,612 .00

. During this period , however, the Public Defender’s office was sharply reducing its budget for hiring mental health experts

. O ver the four fiscal years running from July 2005 to June 2009, Brannon received roughly the same portion of the total budget spent by the Public Defender’s office to hire mental health experts : 28.2%, 31.32%, 29.26%, and 30.35%, respectively

. Brannon also testified that starting in December 2007, following his testimony at the Aleman hearing, he had troubling conversations with at least six Assistant Public Defender s who in the past had routinely hired him. Although Brannon could not remember the exact words used, he testified that t he substance of their remarks was that the Public Defender ’s office was angry at him and that , whereas previously any assistant Public Defender could hire him, now the y could
not hire him without approval from Finkelstein’s top assistants. Brannon testified , however, that these Assistant Public Defenders were not told directly by Finkelstein

Case: 12-15988 Date Filed: 06/18/2014 Page: 4 of 185 that Brannon was being disfavored beca use of his testimony at the Aleman hearing. Additionally, Bourg Carter testified that Melisa McNeil l , an Assistant Public Defender , said sometime “ after the Aleman testimony” but “way before” the present lawsuit was filed in September 2010 that she had be en told that she could not hire Bourg Carter or Brannon “ because of what was going on with Dr.
Brannon.” As of March 1, 2009, the Public Defender ’ s office began using a wheel rotation system to hire mental health experts instead of allowing Assistant Public Defenders to directly retain experts

. Brannon testified at deposition that he thought that the wheel rotation system “was a horrific idea that reinforces mediocrity,” and that “shortly after [it] was put in ,” he freel y shared this opinion with “[e]very single person that would listen

. ” On June 23, 2009, while being deposed in a case against Barnard Joseph, a client of the Public Defender’s office, Brannon gave testimony that was critical of the Public Defender’s offic e for putting in the wheel rotation system because it risked reducing his referral work. He also took issue with the demotion of an Assistant Public Defender from his position as head of homicide. On July 7, 2009, in response to Brannon’s concerns, Finkelstein told Brannon in an email that Brannon was included in the wheel rotation system. On the same day , however, Finkelstein sent an email to one of his top assistants stating that Finkelstein wanted Brannon to professionally suffer “death by [] 100 0 invisible

Case: 12-15988 Date Filed: 06/18/2014 Page: 5 of 186 cuts. [W] ithering on the vine, pinned and wriggling on the wall with no target or issue or martyrdom for him to seek sanctuary.”
O n July 28, 2009 , after reviewing Brannon’s testimony at the Joseph deposition , Finkelstein ordered that Brannon be removed from the wheel rotation system because of his demonstrable hostility and animosity toward the Public Defender ’s office. Finkelstein testified that Brannon’s testimony in the Joseph deposition was the basis for his decision. A s a r esult, in fiscal year 20 0 9

- 20 10, plaintiffs received only $12,800 of consulting work from the Public Defender ’s office. On September 29, 2010, the plaintiffs filed this suit in the District Court for the Southern District of Florida , alleging that F inkelst ein reduced and ultimately terminated Brannon’s consulting work for the Public Defender ’s office in retaliation for Brannon ’s constitutionally protected speech at the Aleman hearing. On October 16, 2012 , the district court granted summary judgment to defendants

. Brannon v. Finkelstein , No. 10

- cv - 61813

- DLG (S.D. Fla. Oct. 16, 2012) , ECF No. 137

. In substance, t he district court concluded that the Public Defender’s office had not taken any adverse action against Brannon prior to removing him from the w heel rotation system and that there was no causal nexus between that removal in July 2009 and Brannon’s testimony at the Aleman hearing in December 2007

. Id

. Plaintiffs appeal. Case: 12-15988 Date Filed: 06/18/2014 Page: 6 of 187 DISCUSSION
I. Summary Judgment We review a district court’s ruling on summary judgment de novo and apply the same legal standard used by the district court. Shiver v. Chertoff , 549 F.3d 1342, 1343 (11th Cir. 2008) (per curiam) . “Summary judgment is appropriate where ‘there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.’” Id. (alteration in original) (quoting Fed. R. Civ. P. 56(c)). In making this determination, “[w] e draw all factual inferences in a light most favorable to th e non - moving party.” Id. “To establish a First Amendment retaliation claim, a plaintiff must show that (1) her speech was constitutionally protected; (2) she suffered adverse conduct that would likely deter a person of ordinary firmness from engaging in such speech; and (3) there was a causal relationship between the adverse conduct and the protected speech.” Castle v. Appalachian Technical Coll

. , 631 F.3d 1194, 1197 (11th Cir. 2011). Because t he parties do not dispute that Brannon’s testimony at the A leman hearing was constitutionally pro tected, we must determine whether, taking the evidence in the light most favorable to Brannon, a fair

- minded jury could conclude that Brannon suffered adverse conduct and that there was a causal relationship

Case: 12-15988 Date Filed: 06/18/2014 Page: 7 of 188 between th e adverse conduct and his Aleman testimony.

A. Adverse Conduct Finkelstein does not dispute that removing Brannon from the wheel rotation system in 2009 amounted to adverse conduct. Finkelstein argues, however, that
Brannon ’s lost work immediately following his testimony at the Aleman hearin g cannot amount to adverse conduct because of the overall budget reductions that took place. We do not believe that this issue can be resolved in Finkelstein’s favor on summary judgment

. Brannon has establish ed that his total work from the Public Defender ’s office dropped from the 2006

- 20 07 fiscal year ($608,757 .50 ) to fiscal years 2007

- 2008 ($390,212 .00 ) and 2008

- 20 09 ($170,612 .00 ). Brannon’s work from the Public Defender’s office thus decreased approximatel y 72% over the course of two fiscal years. This is plainly not a “trivial” or “ de minimus inconvenience” to Brannon. Bennett v. Hendrix , 423 F.3d 1247, 1253 (11th Cir. 2005). Finkelstein points to the budget reductions as obviating Brannon’s claim of

a dverse conduct; but that conflates the issue of adverse conduct with its cause. At this step, we need not ask whether the reduction in Brannon’s work was caused by Brannon’s protected speech or by the budget reductions . All we need conclude, as we do here, is that a jury could find that such a drastic decrease in business , if it

Case: 12-15988 Date Filed: 06/18/2014 Page: 8 of 189 resulted from retaliation, “ would likely deter a person of ordinary firmness from the exercise of First Amendment rights. ” Bennett , 423 F.3d at 1254. 1
B. Causation As relevant here, c ausation asks whether Finkelstein , in taking actions that were adverse to Brannon, was subjectively motivated either to reduce Brannon’s work beginning in 2007 or to remove Brannon from the wheel rotation system in July 2009 because Brannon engaged in constitutionally protected speech by testifying at the Aleman hearing. See Smith v. Mosley , 532 F.3d 1270, 1278 (11th Cir. 2008). This subjective motivation issue is addressed through the Mt. Healthy burden

- shifting analysis: [ O ] nce the plaintiff has met his burden of establishing that his protected conduct was a motivating factor behind any harm, the burden of production shifts to the defendant. If the defendant can show that he would have taken the same action in the absence of the protected activity, he is entitled to prevail on [his motion for judgment as a matter of law or prior to trial on] summary judgment. Id. ( second alteration in original) ( quoting Thaddeus

- X v. Blatter , 175 F.3d 378, 399 (6th Cir. 1999) ); see M t. Hea lthy City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 287 (1977).

1 The district court also granted summary judgment to the defendant on Brannon’s claim that the Public Defender’ s o ffice objected to Brannon being appointed by the state court or hired by the State Attorney’s o ffice in cases involving clients of the Public Defender’ s o ffice. Brannon v. Finkelstein , No. 10

- cv - 61813 , slip op. at 13 (S.D. Fla. Oct. 16, 2012). Construing the arguments in Brannon’s brief liberally, Brannon has not raised this issue on appeal and he is thus deemed to have abandoned it

. See Alls tate Ins. Co. v. Swann , 27 F.3d 1539, 1542 (11th Cir. 1994). Case: 12-15988 Date Filed: 06/18/2014 Page: 9 of 1810 1. Reduction in work beginning in 2007 Brannon contends that Finkelstein was subjectively motivated to reduce his work because of his testimony at the Aleman hearing. In support, Branno n points to Finkelstein’s testimony that he was “surprised” and “extremely disappointed” at Brannon’s testimony at the hearing. There was also evidence that months later, Finkelstein admitted in an email that he wanted Brannon to suffer “ death by [] 1000 invisible cuts ,” which could be interpreted to relate back to reductions in his referral work.
B rannon received substantially more work from the Public Defender’s office during July through December of 2007, when he received $288,875, as compared to
the first six months in 2008 immediately following his testimony at the Aleman hearing, when he received only $125,792.50. The record also establishes that in the eleven mont hs prior to Brannon’s testimony at the Aleman hearing, Brannon’s office received on average $47,448 of work per month from the Public Defender’s office , while in the twelve months following his testimony, the monthly average dropped to $19,418. Where adve rse action “closely follows protected activity, it is usually reasonable to infer that the activity was the cause of the adverse action .” Mize v. Jefferson City Bd. of Educ. , 93 F.3d 739, 745 (11th Cir. 1996). Finkelstein argues that , even if these number s are accurate, his office Case: 12-15988 Date Filed: 06/18/2014 Page: 10 of 1811 drastically curtailed its budget for hiring expert witnesses like Brannon during this period of time and reduced Brannon’s work in proportion to the overall reductions

. O ver the four fiscal years running from July 2005 through J une 2009, Brannon continued to receive approximately the same portion of the office’s total spending on due process mental health experts: 28.2%, 31.32%, 29.26%, and 30.35%, respectively. In other words, Brannon’s share of the Public Defender’s office ’s

w ork following his testimony at the Aleman hearing in December 2007 until he was removed from the wheel in July 2009 remained about the same. Finkelstein thus contends that Brannon’s work would have been reduced regardless of Brannon’s Aleman hearing testi mony. W e believe that, based on the evidence in the record , a reasonable fact

- finder could find that Finkelstein was subjectively motivated to reduce and did reduce Brannon’s work because of his Aleman hearing testimony. On the other hand, a reasonable fact

- finder could, but would not be required to, find that Finkelstein would have reduced Brannon’s work in any event because of the Office’s budget reductions. See Smith , 532 F.3d at 1279 (holding that summary judgment was appropriate where a jury “would have to find that the defendants would have [taken the adverse conduct] even in the absence of the protected conduct” (internal quotation marks omitted)) . With two permissible views of this evidence, s ummary judgment was improperly granted to the defenda nt.

Case: 12-15988 Date Filed: 06/18/2014 Page: 11 of 1812 2. Removal from the wheel rotation system in 2009 Brannon argues that his testimony at the Aleman hearing was also a motivating factor behind Finkelstein r emoving him from the wheel rotation system in 2009

. Three pieces of evidence support Brannon’s argument. First, Brannon testified at deposition that shortly after the Aleman hearing at least six Assistant Public Defenders told him that they could not retain him as an expert because Finkelstein was angry a t Brannon

. Brannon testified that they told
him that whereas he could previously be retained by any Assistant Public Defender,

now he could not be hired without approval from Finkelstein’s top assistants

. Although Brannon could not recall the specific wo rds used in each conversation, he
recalled the names of the Assistant Public De fenders with whom he spoke

. 2 Second, Bourg Carter testified that Assistant Public Defender Melisa McNeil l said sometime “after the Aleman testimony” but “way before” this lawsuit was filed in September 2010 that she had been told that she could not hire Bourg Carter or Brannon because of the animosity the Public Defender’s office had toward
Brannon.

2 Even if Brannon’s testimony regarding what the Assistant Public Defenders told him is hearsay, as the district court found, it should be considered on summary judgment here because it can be reduced to an admissible form at trial. See Jones v. UPS Ground Freight , 683 F.3d 1283, 12 94 (11th Cir. 2012) (stating that the “most obvious way that hearsay testimony can be reduced to admissible form is to have the hearsay declarant testify directly to the matter at trial” ).

Case: 12-15988 Date Filed: 06/18/2014 Page: 12 of 1813 Third, as noted earlier, on July 7, 2009 , three weeks before Brannon’s

re moval from the wheel, Finkelstein said in an email to one of his employees that he wanted Brannon to professionally suffer “death by [] 1000 invisible cuts. [W]ithering on the vine, pinned and wriggling on the wall with no target or issue or
mart yrdom for him to seek sanctuary. ” Notwithstanding this evidence, Finkelstein argues that he would have removed Brannon from the wheel regardless of Brannon’s Aleman hearing testimony because Brannon publicly had expressed animosity towards the Public Defender’s office

. Brannon admitted at deposition that , “shortly after the wheel system” was implemented in March 2009 , he publicly criticized the Public Defender’s office ’s use of the wheel , calling it a “horrific idea that reinforces mediocrity ” because it “makes an assumption that everybody who has . . . a Ph.D. or Psy.D. is of equal skill and talent in all areas. We all know that’s not the truth.” Brannon further testified that he expressed this opinion to “[e]veryone who would listen. Both chief judges. . . . Every single person that would listen to me.” Moreover, on June 23, 2009, Brannon testified in a deposition related to a case against a client of the Public Defender’s office , Barnard Joseph, that he had concerns with the office, inclu ding that he was receiving less work under the wheel rotation system and that he disagreed with the demotion of an Assistant Public Defender from the position as head of homicide.

Case: 12-15988 Date Filed: 06/18/2014 Page: 13 of 1814 We reject Brannon ’s conten tion that his statements made against the Public Defender’s office ’s policies cannot be used to justify removal from the wheel because he was provoked by Finkelstein into making them. Brannon relies on NLRB v. Mueller Brass Co. , where the Fifth Circuit stated that “[a]n employer cannot provoke an employ ee to the point where she commits such an indiscretion

. . . and then rely on this to terminate her employment.” 501 F.2d 680, 686 (5th Cir. 1974). Although there is evidence here that Finkelstein was personally hostile to Brannon, there is no evidence t hat the Public Defender’s office provoked him prior to the statements he made against the office’s policies. Brannon spoke freely and without provocation when he testified at the Joseph deposition and when he criticized the wheel system starting in March 2009 to “[e]veryone who would list en.” Finkelstein argues that Brannon was treated no worse from the time of the Aleman hearing to the Joseph deposition and that no decision was made to remove Brannon from the wheel prior to July 28, 2009, the date that Finkelstein reviewed Brannon’s testimony at the Joseph deposition

. As with Brannon’s reduced referral work discussed above, we believe that a reasonable fact

- finder could come to different conclusions as to why Brannon was removed from the wheel. Finke lstein could have removed Brannon from the wheel solely because of Brannon’s disparaging remar ks about the Public Defender’s office

Case: 12-15988 Date Filed: 06/18/2014 Page: 14 of 1815 regardless of his protected testimony at the Aleman hearing and any consequent hostility that Finkelstein harbored. See Cas tle , 631 F.3d at 1197 (defendant is not liable if he “ would have taken the same action in the absence of the protected conduct ”). On the other hand, a reasonable jury could find that Brannon’s testimony at the Aleman hearing caused the removal. We thus c onclude that , as to Brannon’s removal from the wheel rotation system, summary judgment was improperly granted to Finkelstein

. II. Qualified Immunity Prior to ruling on defendant’s motion for summary judgment, the district court granted qualified immunity to Finkelstein in his individual capacity on Brannon’s claim that Finkelstein violated his constitutional rights by reducing and ultimately terminatin g his work as an expert witness for the Public Defender’s office

. Brannon v. Finkelstein , No. 10

- cv - 61813 slip op. at 11 (S.D. Fla. Oct. 3, 2011) , ECF No. 30

. The district court held that the balancing of interests of the employee versus the State employ er required by Pickering v. Board of Ed ucation , 391 U.S. 563 (1968) , would not conclusively show that Finkelstein deliberately violated Brannon’s First Amendment rights . This was so because Finkelstein could reasonably believe that Brannon was biased agai nst the Public Defender’s office and thus “may very well have reasonably believed that legal ethics required his actions.” Brannon , ECF No. 30, slip op. at 11.

Case: 12-15988 Date Filed: 06/18/2014 Page: 15 of 1816 We affirm the grant of qualified immunity

. We do so , however, on somewhat different grounds because we now have the benefit of discovery unavailable to the district court at the motion to dismiss stage

.

“ Qualified immunity provides protection for government officials performing discretionary functions and sued in their individual capacities as lo n g as their conduct violates no clearly established statutory or constitutional rights of which a

reas onable person would have known.” Storck v. City of Coral Springs , 354 F.3d 1307, 1313 (11th Cir. 2003) (internal quotation marks omitted). Put another way, the official is entitled to such immunity unless he both (1) violates clearly established law and (2) was aware or reasonably should have been aware that he was doing it. First, the court must be convinced “ that the legal norms alleged ly violated by the defendant were clearly established at the time of the challenged actions or the law clearly proscribed the actions the defendant took.” Dartland v. Metro

. Dade Cnty. , 866 F.2d 1321, 1322 (11th Cir. 1989) (internal quotation marks and al terations omitted). And, second, w e ask “whether a reasonable person in the position of the defendant would have known that he was violating clearly established law.” Hansen v. Soldenwagner , 19 F.3d 573, 578 (11th Cir. 1994). In the context of a First Amendment retaliation claim, w e have recognized that a defendant “will only rarely be on notice that his actions are unlawful”

Case: 12-15988 Date Filed: 06/18/2014 Page: 16 of 1817 because applying the Pickering balancing “involves legal determinations that are intensely fact

- specific and do not lend themselv es to clear, bright

- line rules.” Maggio v. Sipple , 211 F.3d 1346, 1354 (11th Cir. 2000) (internal quotation marks and alteration omitted). Likewise, in determining contested issues of causation , the defendant is entitled to qualified immunity “[w] here th e facts assume d for summary judgment purposes . . . show mixed motives (lawful and unlawful motivations) and
pre - existing law does not dictate that the merits of the ca se must be decided in plaintiff’ s favor. ” Foy v. Holston , 94 F.3d 1528, 1535 (11th Cir. 1996). As we have noted earlier , when Brannon’s work was reduced following his testimony at the Aleman hearing, the Public Defender’s office simultaneously drastically reduced its overall budget for hiring expert witnesses like Brannon. T he evidence also suggests that while Brannon’s referrals dropped in absolute terms, his proportional share of the Public Defender’s office’s work remained constant. And it is not disputed that, w hen Finkelstein removed Brannon from the wheel rotation system, Brannon had recently and publicly expressed his ill

- will towards the Public Defender’s office. Brannon was thus susceptible to cross

- examination on the subject whenever he testified on a Public Defender’s client’s behalf, which in turn could compromise the effect iveness of his testimony. Under the specific facts and circumstances of this case, in which there exists evidence of both lawful and unlawful motivations for Finkelstein’s actions, “pre

Case: 12-15988 Date Filed: 06/18/2014 Page: 17 of 1818 existing law does not dictate that the merits of the case must be de cided in [Brannon’s] favor.” Id . Thus Finkelstein is entitled to qualified immunity in his individual capacity on the retaliation claim. CONCLUSION For the reasons stated above, we VACATE the judgment of the district court granting summary judgment to the defendant , AFFIRM the judgme nt of the district court granting qualified immunity to defendant Finkelstein in his individual capacity, and REMAND for further proceedings consistent with this opinion

.

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