         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                          No. 1D16-2499
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MALCOLM GAINEY,

    Appellant,

    v.

WASHINGTON COUNTY, FLORIDA,

    Appellee.
                  _____________________________

On appeal from the Circuit Court for Washington County.
Wade Mercer, Judge.

                         August 1, 2018


                ON MOTION FOR CLARIFICATION

PER CURIAM.

    We grant Appellee’s motion for clarification, withdraw our
previously-issued opinion and substitute the following revised
opinion.

     Malcolm Gainey was a systems administrator for Washington
County from 2002 until his position was eliminated by a 3-2 vote
of the county commission in September 2013, in the midst of
budgetary difficulties. Gainey was involved in an ongoing dispute
with County Commissioner, Lynn Gothard. He complained about
indecorous and increasingly improper treatment by Gothard,
whom he believed wanted to get him fired, in part, due to his
relationship with two male commissioners on the five member
body. Gainey filed a written complaint with the county, which
outlined the conflict between him and Commissioner Gothard,
including the remarks about his job performance, his gender, and
his unwillingness to comply with her request to look further into
live-streaming county commission meetings.

     Gainey sued, claiming a Florida whistleblower violation
against the county for its retaliatory action against him after his
disclosure of Gothard’s behavior. After discovery was complete,
the county moved for summary judgment, which the trial court
granted in its favor, finding that Gainey failed to establish a causal
connection between his dismissal and his whistleblower report and
that the commission’s action was supported by a legitimate, non-
retaliatory reason, that being the county’s budgetary problems.

     On appeal, no dispute exists that Gainey engaged in a
protected activity and that he “suffered an adverse employment
action,” which are the first two parts of the three-part
whistleblower test. Florida Dep’t. of Children and Families v.
Shapiro, 68 So. 3d 298, 305-06 (Fla. 4th DCA 2011). The third part
of the test is whether a causal relationship existed between
Gainey’s protected activity and his termination. This is in dispute.
Gainey’s termination occurred in reasonable temporal proximity to
the time where evidence existed that the commissioners may have
become aware of the whistleblower complaint. Such evidence
appears to be sufficient to allow a jury to make the determination
of causation. Id at 306.

     Gainey thus presented a prima facie case, for which the
commission could avoid liability by showing a legitimate,
nondiscriminatory reason for elimination of Gainey’s position. The
county claimed that Gainey’s termination was due solely to
budgetary problems, which is a legally sufficient justification,
shifting to Gainey the responsibility of presenting evidence that
those problems were pre-textual. The record, however, contains
sufficient evidence from which a jury may determine that the
elimination of Gainey’s job was pre-textual. For instance, after
Gainey was terminated, the majority voted to deny him the full
amount of accrued annual and sick leave when the prior common
practice had been to approve full payment. In addition, remarks
were made to an outside company that Gainey was being forced to

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retire rather than that his position was being eliminated for
budget concerns.        Other evidence concerning the actual
seriousness of the budget crisis was presented, including
alternative proposals from the budget committee which would not
have eliminated Gainey’s position. Gainey presented evidence
sufficient to permit a jury to disbelieve the proffered explanations,
making summary judgment inappropriate because “issues of fact
and sufficiency of evidence are properly reserved for the jury.”
Combs v. Plantation Patterns, 106 F. 3d 1519, 1530 (11th Cir.
1997); see also Damon v. Fleming Supermarkets of Fla., Inc., 196
F. 3d 1354, 1362-63, n.2 (11th Cir. 1999) (a jury can reasonably
infer discriminatory animus from circumstantial evidence).

     Because Gainey established a prima facie case and produced
evidence of pretext that may rebut the County’s claim that his
position was eliminated for budgetary reasons, summary
judgment was improper.

    We affirm, without comment, the trial court’s award to
Appellee of attorney fees and costs associated with the Motion for
Protective Order.

    AFFIRMED in part, REVERSED in part.

WOLF, MAKAR, and M.K. THOMAS, JJ., concur.
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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Marie A. Mattox of Marie A. Mattox, P.A., Tallahassee, for
Appellant.

Margaret Philips Zabijaka and Jack R. Wallace of Constangy,
Brooks, Smith & Prophete, LLP, Jacksonville, for Appellee.




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