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King v. Board of County Commissioners

United States Court of Appeals, Eleventh Circuit

March 1, 2019

NANCY KING, et al., Plaintiffs - Appellants,
v.
BOARD OF COUNTY COMMISSIONERS, POLK COUNTY, FLORIDA, et al., Defendants - Appellees.

          Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:16-cv-02651-VMC-TBM

          Before ED CARNES, Chief Judge, MARTIN, and ROGERS, [*] Circuit Judges.

          ROGERS, Circuit Judge.

         Dr. Nancy King worked under contract for Polk County, Florida and for fifteen years was the primary person responsible for determining whether firefighter applicants were medically qualified. In 2014, the medical clearance process for one applicant was mishandled, and King had strong feelings about how the process should have gone and who should have been making clearance decisions. She aired these feelings to her colleagues and, in two private meetings, with a deputy county manager and with the county manager. Subsequently, her contract with the county was put out for bids, and her bid was not selected. King then sued the county and others, alleging that they violated her First Amendment rights by retaliating against her for engaging in protected speech. She did not engage in speech protected by the First Amendment, however, because she spoke as an employee and not as a private citizen.

         I.

         As we are reviewing a grant of summary judgment, the following facts are taken from the evidence and read in the light most favorable to King, who is the nonmoving party. See, e.g., Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1311 (11th Cir. 2018); Haynes v. McCalla Raymer, LLC, 793 F.3d 1246 (11th Cir. 2015).

         In 2014, King was working as the occupational health director for Polk County, Florida. King was first hired as medical director in 2000 under a contract between her and the county.[1] Among her various responsibilities, "one of the most important" was to determine whether persons who applied to be firefighters were medically fit for duty. According to King, her "responsibilities to the county had always been to ensure personnel were medically fit to perform their essential job duties." Ordinarily, King would rely on a national standard known as NFPA 1582 to determine whether the candidate was capable of performing the tasks of a firefighter, and she would then make a recommendation to the County.

         This case revolves around one applicant, "J," who is African-American, and who applied for a position with the Polk County Fire Department under a diversity initiative. Under this initiative, six promising candidates from socially-disadvantaged backgrounds are provided financial assistance and training to help them apply to be, and ideally become, Polk County firefighters. Unlike other firefighter applicants who go through fire school and then apply for a position, those hired through the diversity initiative get on the county payroll prior to completing their training.

         King did not perform J's initial preemployment screening. Rather, a physician assistant employed by King performed the exam and found several medical problems related to J's lungs, even though J had earlier stated that he did not have any lung problems. The assistant recommended that J see a personal physician to get these issues looked at. This resulted in a misunderstanding: as the physician assistant saw it, J was not medically qualified to become a firefighter; as J saw it, he just needed to get cleared to work by a personal physician. In addition to this misunderstanding, there was a mix-up: even though neither the physician assistant nor King had signed off on J's fitness, J was permitted to begin classroom instruction, which, because he was part of the diversity initiative, meant that he was placed on the county payroll in January 2014.

         In the following months, several medical professionals gave conflicting statements about J's medical fitness. Some of these professionals opined that J was medically fit to perform at least some tasks, while those associated with King's office maintained that J was not fit to work as a firefighter. The professionals who cleared J did not use, or were not even aware of, the NFPA standard. King, who ordinarily was the person tasked with making medical fitness recommendations, was not consulted on J's case until late 2014.

         King became involved when the then-director of risk management for the county, Mike Kushner, noticed J's case and asked King to review what was going on. In an email that Kushner sent to King, he stressed that King's clinic, Employee Health Services or "EHS," should "never relinquish control of the process" of clearing candidates. In November 2014, Kushner also asked King to render a medical opinion regarding J's fitness for duty.

         Following Director Kushner's request, King called Kandis Baker-Buford, the equal opportunity administrator who oversaw the diversity initiative, to notify her that King would be examining J. According to King's notes, Baker-Buford responded that it would be "inappropriate" for King to examine J because J had "already received medical clearance from his treating physician." King was "dumbfounded" because in the fifteen years she had served in this role she had never been refused the opportunity to examine an applicant.

         Despite Baker-Buford's request that King not physically examine J, Kushner asked King to review J's medical records and render an opinion. In his request, Kushner asked King for her "medical opinion as to whether Mr. J completed his physical intake questionnaire accurately." King was surprised because she had never been "asked to review an applicant's medical records for potentially false information." King completed her review of J's records in December 2014 and recommended getting a second opinion "given the contentious nature of this case." In her review, King had found multiple inconsistencies and "false information" provided by J in his medical records. King recommended that J "be evaluated by another Occupational Health physician with an expertise in pulmonary conditions," and Kushner set up an appointment for J to meet with a Dr. McCluskey. [King Aff. ¶ 26.] Baker-Buford was "fine" with the appointment, but was concerned about making J, an African-American diversity initiative applicant, go through more examination than other employees.

         In February 2015, County Manager Jim Freeman and Deputy County Manager Lea Ann Thomas became involved. Freeman had been "informed" of J's situation-that he had been a county employee for "over a year," but had "not obtained medical clearance from Dr. King's office," even if he had obtained some clearances from other physicians to perform some tasks. Freeman and Thomas met with Kushner and Baker-Buford in February. Freeman essentially asked Kushner and Baker-Buford to work out their differences regarding how the medical clearance process should work so this confusion would not arise in the future. The heart of the disagreement between Kushner and Baker-Buford was about the role of King and Employee Health Services: Kushner believed King and EHS should always be in control and have the final say on medical clearances, whereas Baker-Buford thought a clearance from a personal physician was sufficient.

         King continued to see Baker-Buford as unusually (and unnecessarily) involved in J's case. Baker-Buford had previously rescheduled J's appointment with Dr. McCluskey and questioned whether Dr. McCluskey was a pulmonologist. King stated in her affidavit that she "had never seen this level of involvement and intervention on behalf of any applicant or employee by a county official, including Ms. Baker-Buford." In March 2015, Dr. McCluskey told King that someone had called McCluskey's office and referred to J as "her client," leading Dr. McCluskey to think that J was represented by counsel in this matter. After King investigated, she learned that one of Baker-Buford's employees had called Dr. McCluskey.[2] King found this involvement by Baker-Buford's office "unusual." At one point, Baker-Buford referred in an email to King to some medical documentation; King was "shocked" and "astonished" that ...


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