                                                         [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT                      FILED
                      ________________________          U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                            September 14, 2005
                             No. 05-11653                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                D. C. Docket No. 04-00105-CV-T-24MSS

SUSAN R. KAMENSKY,


                                                           Plaintiff-Appellant,

                                  versus

ROGELIO DEAN,
HILLSBOROUGH COUNTY, FLORIDA,


                                                        Defendants-Appellees.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________
                          (September 14, 2005)


Before BLACK, CARNES and MARCUS, Circuit Judges.

PER CURIAM:
       Susan R. Kamensky appeals the district court’s grant of summary judgment

on her 42 U.S.C. § 1983 claims against Hillsborough County, Florida, and Rogelio

Dean, her former employer and supervisor, respectively, whom she alleged

retaliated against her for exercising her First Amendment right to freedom of

speech. After de novo review, we conclude the district court did not err and

affirm.1

       Kamensky alleged she was terminated because she expressed concerns about

the propriety of a trip to Boston to view a proposed vendor’s facilities. Kamensky

asserts the district court erred in: (1) overlooking evidence showing any review of

Dean’s decision to reclassify her position and ultimately terminate her was merely

a “rubber stamp,” thus permitting a reasonable factfinder to impose liability on

Hillsborough County and on Dean, in his individual capacity; and (2) determining

there was insufficient evidence to create a jury question as to whether her speech

played a substantial part in her termination.




       1
          We review de novo the district court’s grant of a motion for summary judgment, viewing
all evidence and factual inferences in the light most favorable to the nonmoving party. Turnes v.
AmSouth Bank, N.A., 36 F.3d 1057, 1060 (11th Cir. 1994).

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                                  I. DISCUSSION

A. Rubber stamp argument

      1. Dean

      A “decisionmaker” is someone “who has the power to make official

decisions and, thus, be held individually liable.” Quinn v. Monroe County, 330

F.3d 1320, 1326 (11th Cir. 2003) (emphasis in original). A “decisionmaker” may

often be identified by a rule or by examining the statutory authority of the official

alleged to have made the decision. Id. at 1328. In the termination context, a

“decisionmaker” has the power to terminate an employee, not merely the power to

recommend termination. Id.

      Kamensky concedes Dean’s reorganization proposal had to be reviewed by

the County’s Human Resources Director, the Assistant County Administrator, the

County Civil Service Board (County Board), and Dan Kleman, the County

Administrator. She further concedes county policy and procedure deemed Kleman

the decisionmaker regarding the elimination of Kamensky’s position. Thus, the

evidence indisputably shows Dean had no power to terminate Kamensky, but

rather only had the power to recommend her termination. Dean was not the

“official decisionmaker,” and thus cannot be held individually liable. See id.




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      Nonetheless, Kamensky asks us to create a “rubber stamp” exception to

Quinn’s “decisionmaker” inquiry. In doing so, she cites cases dealing with

governmental, not individual, liability. See Holloman ex. rel. Holloman v.

Harland, 370 F.3d 1252, 1290–94 (11th Cir. 2004); Matthews v. Columbia County,

294 F.3d 1294, 1296–98 (11th Cir. 2002). We have not extended this line of cases

to individual liability, and refrain from doing so here.

      2. Hillsborough County

      In Quinn, we noted the distinction between a “decisionmaker,” as discussed

above, and a “policymaker,” “who takes actions that may cause the [governmental

entity] to be held liable for a custom or policy.” Quinn, 330 F.3d at 1326. Such an

inquiry exists because governmental entities cannot be held liable under § 1983 on

a theory of respondeat superior, but rather may be held liable only for the

execution of a governmental policy or custom. Id. at 1325. This liability “may

arise with regards to an employment decision, such as a termination, provided that

the decisionmaker ‘possesses final authority to establish . . . policy with respect to

the action ordered.’” Id. (emphasis in original) (citation omitted). “Only those . . .

officers who have final policymaking authority may by their actions subject the

government to § 1983 liability.” Matthews, 294 F.3d at 1297.




                                           4
      A governmental employee is considered a “final policymaker” for

governmental liability purposes “only if his decisions have legal effect without

further action by the governing body, and if the governing body lacks the power to

reverse the . . . employee’s decision.” Holloman, 370 F.3d at 1292 (internal

citation omitted). “To determine if someone is a final policy maker, we look not

only to ‘state and local positive law,’ but also to ‘custom and usage having the

force of law.’” Id. (citations omitted).

      The evidence demonstrated Dean, by definition, was not the “final

policymaker” over Kamensky’s termination. Dean’s reorganization plan had no

legal effect without further action by Kleman, and Kleman had the power to reject

Dean’s plan. See id. Kamensky, however, asserts Kleman merely “rubber

stamped” Dean’s recommendation, and that, absent meaningful review, the County

may be held liable.

      In Quinn, we cited a Fifth Circuit case for the proposition a final

policymaker may serve as the conduit of a subordinate’s improper motive if he

merely “rubber stamps” the subordinate’s recommendation. Quinn, 330 F.3d at

1327 (citation omitted). In Quinn, however, we noted the plaintiff neither pointed

to a cognizable defect in the proceedings, nor provided evidence the reviewing

board approved any improper motive. Id. at 1326. More recently, we looked “to


                                           5
whether there is an actual ‘opportunity’ for ‘meaningful’ review” in determining

whether a governmental decisionmaker is a final policymaker. Holloman, 370

F.3d at 1292 (emphasis added). In Holloman, we found no opportunity for a

meaningful review by a school board in light of the practical difficulties of

administering a multi-step appellate process. Id. at 1293 (emphasis added).

      Here, as in Quinn, Kamensky does not point to any cognizable defect in the

proceedings, nor does she provide evidence Kleman, or anyone else, approved an

improper motive. And, unlike in Holloman, in this case, there was an opportunity

for meaningful review. Indeed, Kleman testified that, when he approved Dean’s

reorganization plan, he was aware of the reorganization plan and its proposed

adverse affects on Kamensky’s position. Thus, Kamensky failed to introduce

sufficient evidence to show Dean was the “final policymaker” regarding her

termination. See Quinn, 330 F.3d at 1326.

B.    Insufficient evidence for jury question

      For a public employee to sustain a retaliation claim for protected speech

under the First Amendment, the employee must show, by a preponderance of the

evidence: (1) her speech is on a matter of public concern; (2) her free speech

interest outweighed her employer’s interest in promoting efficient public services;

and (3) her speech played a “substantial part” in the employer’s decision to

                                          6
discharge her. Anderson v. Burke County, Ga., 239 F.3d 1216, 1219 (11th Cir.

2001). The County concedes the first two factors, but disputes the third factor. As

to that factor, this Court has stated “‘it is neither possible nor desirable to fashion a

single standard for determining when an employee has met her initial burden of

demonstrating that a retaliatory intent was a ‘substantial’ or ‘motivating factor’

behind a government employment decision.’” Stanley v. City of Dalton, Ga., 219

F.3d 1280, 1291 (11th Cir. 2000) (citation omitted). Rather, a court must examine

the record as a whole to ascertain whether the plaintiff presented sufficient

evidence for a reasonable jury to conclude her protected speech was a substantial

motivating factor in the decision to terminate her. Id. “The plaintiff’s burden in

this regard is not a heavy one.” Id.

      In Stanley, this Court identified several relevant factors to consider,

including: (1) the temporal proximity between the termination and the protected

activity; (2) whether any reasons for the termination were pretextual; (3) whether

any comments made, or actions taken, by the employer indicate the discharge was

related to the protected speech; (4) whether the asserted reason for the discharge

varied; and (5) any circumstantial evidence of causation, including such facts as

who initiated any internal investigations or termination proceedings, whether there

is evidence of management hostility to the speech in question, or whether the


                                            7
employer had a motive to retaliate. Id. at 1291 n.20. “There is no one factor that is

outcome determinative, but all factors must be taken into account.” Id.

      As to temporal proximity, we have inferred causation “[w]here termination

closely follows protected activity.” Mize v. Jefferson City Bd. of Educ., 93 F.3d

739, 745 (11th Cir. 1996). However, we have rejected any per se rule as to the

length of time necessary to create such an inference. See Beckwith v. City of

Daytona Beach Shores, Fla., 58 F.3d 1554, 1566–67 (11th Cir. 1995). In Stanley,

219 F.3d at 1291–92, we refused to grant such an inference where there was almost

a four-year gap between the protected speech and the employee’s termination.

      There was a one-year gap between Kamensky’s protected speech and Dean’s

initial staff analysis, an eighteen-month gap between her protected speech and his

initial reorganization proposal, and over a two-year gap between her protected

speech and her ultimate termination. As in Stanley, Kamensky cannot show an

inference of causation from temporal proximity.

      As to pretext, Dean offered one primary reason for Kamensky’s termination,

the reorganization of the ITS department, but also referred to a second reason, her

poor performance. Kamensky offered no evidence to demonstrate these reasons

were pretextual. Rather, uncontroverted evidence indicated Dean presented his

reorganization plan based on a staff analysis he performed after receiving an

                                          8
operational analysis from an outside firm. Moreover, Dean testified as to

Kamensky’s unsatisfactory performance, and Kamensky admitted she had

performance problems.

      As to the other Stanley factors, Kamensky offered no evidence any

comments were made, by anyone, indicating her termination was related to her

protected speech, and Dean expressly denied he made any such comments. As to

specific actions, Kamensky testified Dean reduced her responsibilities and gave her

a substandard evaluation after she expressed concerns about the Boston trip.

However, Kamensky also admitted that, prior to and during this time, her work

performance suffered.

      Moreover, Kamensky did not offer any evidence Dean confronted her about

her protected speech, failed to notify her of his reorganization plan, failed to follow

departmental policy, reprimanded her, or singled her out in his plan. Rather, Dean

testified he followed departmental policy, notified her of his plan, advised her to

apply for a new position, would have hired her had she applied, and recommended

reclassification of another employee’s, Deborah Scarborough’s, position in his

plan. Kamensky also failed to introduce any evidence Dean’s asserted reasons for

her termination ever varied.




                                           9
      Lastly, Kamensky failed to introduce sufficient circumstantial evidence of

causation. Although it is undisputed Dean initiated the reorganization plan

ultimately leading to Kamensky’s termination, Kamensky offered no evidence

these actions had anything to do with her speech. More importantly, Kamensky

offered no evidence of management hostility towards her speech, nor did she

provide any evidence Dean had a motive to retaliate against her. For instance, she

offered no evidence Dean came under scrutiny or otherwise suffered because of her

protected speech. We conclude Kamensky has failed to show her speech was a

motivating factor in her termination.

                                 II. CONCLUSION

      We find no merit to Kamensky’s “rubber stamp” argument. Additionally,

the district court did not err in determining there was insufficient evidence to create

a jury question as to whether Kamensky’s speech played a substantial part in her

termination. Thus, we affirm the district court’s grant of summary judgment to

Hillsborough County and Dean.

      AFFIRMED.




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