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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-10218
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 4:17-cv-00565-RH-CAS



CLINTON O. SMITH,

                                                            Plaintiff-Appellant,


                                  versus


CITY OF TALLAHASSEE,
ROBERT E. MCGARRAH,

                                                        Defendants-Appellees.

                       ________________________

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

                            (October 16, 2019)

Before ED CARNES, Chief Judge, ROSENBAUM, and BRANCH, Circuit
Judges.
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PER CURIAM:

       Clinton Smith filed a complaint in Florida state court against the City of

Tallahassee and Robert McGarrah, alleging retaliation in violation of the First

Amendment and the Florida Whistleblower Act (FWA). The City and McGarrah

removed the action to the Northern District of Florida and filed a motion for

summary judgment, which the district court granted as to each claim. The district

court also denied Smith’s motion to remand the FWA claim to the state court. This

is Smith’s appeal.

                                              I.

       The facts are as follows.1 The City’s Electric Utility Department provides

electrical services to residents in and near Tallahassee. The Electric Utility

Department originally had two divisions: the Power Engineering division and the

Transmission and Distribution division (T&D). Power Engineering had 25 to 30

employees, and T&D had around 120 employees. McGarrah was the general

manager of both divisions.

       In 2015 the City hired Smith as the assistant general manager of the Power

Engineering division. Smith was selected for that position over another applicant,

Richard Ash, because Smith appeared to have a more flexible management style.

       1
          While the “facts” as accepted for purposes of summary judgment may not be the actual
facts of the case, we conduct our analysis based on the evidence viewed in the light most
favorable to Smith. We must accept that view of the facts at this stage of the proceedings.
Feliciano v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013).
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      From 2016 to 2017 Smith complained to McGarrah at least nine times about

issues within the Electric Utility Department. Several of his complaints centered

on what he viewed as improper favoritism and nepotism. He complained several

times about his coworkers. He accused Ash of having diverted electrical crews

from a hospital during the recovery effort following a hurricane. He also reported

to the Parks and Recreation department that — contrary to the Electric Utility

Department’s official stance — a transmission line above a city park was causing

park users to be shocked by the playground equipment. When McGarrah learned

that Smith had contradicted the Electric Utility Department’s official stance, he

told Smith that he wished he had not expressed his personal opinion about what

caused the shocks.

      As of 2017 the City’s general budget had been operating on a deficit for

several years. Due to that deficit, certain departments tried to “identify any

organizational changes or operational efficiencies” that could be implemented to

cut expenses and improve “service delivery” to customers. City Manager Rick

Fernandez asked the Deputy City Manager, Reese Goad, to “find efficiency”

within the City departments. Fernandez instructed the heads of other departments

to make their “best professional recommendations” on how to make the City’s

services more efficient. As part of the effort to increase efficiency, the City




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combined three departments (but not the Electric Utility Department) into others,

which led to the termination of three department heads.

      In May 2017 McGarrah met with Goad to recommend that the City merge

the Power Engineering and T&D divisions. Unlike the general City budget, the

Electric Utility Department had been operating on a surplus for the last two years

and was projected to have another surplus in 2018. Despite that surplus, McGarrah

testified that he believed the merger was necessary to promote efficiency because

of historical tensions between the divisions. He testified that the tension between

the divisions was apparent during the hurricane recovery. Goad agreed with

McGarrah’s recommendation to merge the Power Engineering and T&D divisions.

In July 2017 the City merged the divisions and kept Ash on as assistant general

manager of the newly combined division. The City eliminated Smith’s position

and terminated his employment.

      McGarrah testified that he recommended that the City hire Ash for the

assistant general manager position instead of Smith because of Ash’s experience

and tenure with the City. Ash had worked for the City since September 2012. He

was promoted to assistant general manager of T&D in 2016, where he supervised

around 120 people, as compared to the 20 or 30 people Smith supervised. Before

his employment with the City, Ash held a similar position with a public utility for

27 years. At that job, Ash supervised the line crews and engineering personnel.


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Smith had worked for another public utility as well, but only for seven years.

McGarrah believed that Ash had a better working relationship with his peers than

Smith. So McGarrah decided that Ash was better suited for the new job and that

Smith would have to be discharged.

      Before the merger Smith talked to McGarrah and other department leaders

about the reorganization effort. Smith testified that he did not recall McGarrah

ever discussing any “legitimate” organizational or budget reasons for merging the

divisions. It was Smith’s view that the merger was a way to get rid of “people that

had pissed [McGarrah] off.” Smith believed that he in particular had angered

McGarrah when he voiced his opinion about the transmission line over the city

park. Before Smith expressed his concerns about the transmission line, he and

McGarrah had gone to lunch two to three times a week. After he did so, they had

lunch together less often. Two employees approached Smith and asked him what

he had done to “piss off” McGarrah.

      As a result of the reorganization, some Electric Utility Department

employees received raises. The City promoted one employee, Jess Gerrell, to a

supervisor position within the new division. His promotion made him responsible

for the “Line Crews, Service Team and Vegetation Management.” The City’s

layoff policy prevented terminated employees from displacing a permanent

employee. But if a terminated employee applied to a vacant position for which he


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or she was qualified, the department with the vacancy was required to interview

the employee. Smith did not apply for the position that was filled by Gerrell.

                                           II.

      Smith challenges the district court’s grant of summary judgment to the

defendants, which we review de novo. Vessels v. Atlanta Indep. Sch. Sys., 408

F.3d 763, 767 (11th Cir. 2005). Summary judgment is appropriate when the record

demonstrates that there is no genuine dispute as to any material fact, and the

movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

      Government employers may not discharge public employees in retaliation

for speech protected by the First Amendment. Alves v. Bd. of Regents, 804 F.3d

1149, 1159 (11th Cir. 2015). To establish a prima facie case of First Amendment

retaliation, the employee must show that (1) his speech relates to a matter of public

concern, (2) his free speech interests outweigh the public employer’s interest in

efficiently fulfilling its responsibilities, and (3) the speech played a substantial or

motivating role in the employer’s decision to take the adverse action. See Akins v.

Fulton Cty., 420 F.3d 1293, 1303 (11th Cir. 2005). Once the employee makes that

showing, the burden shifts to the employer to prove by a preponderance of the

evidence that it would have made the same employment decision absent the

protected speech. Cook v. Gwinnett Cty. Sch. Dist., 414 F.3d 1313, 1318 (11th

Cir. 2005). The employer must show that, regardless of the speech, it would have


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terminated the employee “in light of its knowledge, perceptions, and policies at the

time of the termination.” Stanley v. City of Dalton, 219 F.3d 1280, 1293 (11th Cir.

2000) (quotation marks and alterations omitted). We use a case by case approach

to determine if an employer has made that showing. Id. at 1294. We do so without

second guessing the business decisions of the employer. Rowell v. Bellsouth

Corp., 433 F.3d 794, 798 (11th Cir. 2005).

      The FWA prohibits retaliation against whistleblowers in public employment.

See Fla. Stat. § 112.3187(2). We analyze FWA claims under the burden-shifting

framework applicable in cases brought under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e. See Sierminksi v. Transouth Fin. Corp., 216 F.3d 945,

950 (11th Cir. 2000) (applying the burden-shifting framework to a claim brought

under Florida’s private whistleblower act, Fla. Stat. § 448.102); see also

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 801–05 (1973) (establishing a

burden-shifting test for claims brought under Title VII); Griffin v. Deloach, 259

So. 3d 929, 931 (Fla. 5th DCA 2018) (applying the Title VII burden-shifting

framework to the plaintiff’s FWA claim). The employee first must make a prima

facie case of retaliation by showing that (1) he engaged in statutorily protected

activity, (2) he suffered an adverse personnel action, and (3) there is a causal

connection between the protected activity and the adverse personnel action.

Olmstead v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998). After the


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employee makes that showing, the burden shifts to the employer to show that there

was a legitimate, nonretaliatory reason for the adverse action. Id. The burden then

shifts back to the employee to show that the employer’s legitimate, nonretaliatory

reason is merely pretext for prohibited retaliation. Id. In doing so, the employee

must rebut the employer’s reason “head on.” Chapman v. AI Transp., 229 F.3d

1012, 1030 (11th Cir. 2000) (en banc). The employee cannot succeed simply by

disputing the wisdom of that reason. Id. “To show pretext, [the employee] must

demonstrate 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.” Alvarez v. Royal

Atl. Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010) (quotation marks

omitted).

      Even if we assume that Smith has made out a prima facie case of retaliation

under the First Amendment and FWA, he still must show pretext. See id.

(assuming that the plaintiff established a prima facie case of discrimination under

Title VII but affirming the grant of summary judgment to the defendant because

the plaintiff failed to show pretext). In order to overcome summary judgment,

Smith needed to create a genuine issue of material fact as to whether he would

have been fired regardless of his speech and whether the reasons for his discharge

were pretext for unlawful retaliation. See id. (“It matters not whether [the plaintiff]


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has made out a prima facie case if [he] cannot create a genuine issue of material

fact as to whether [the defendant’s] proffered reasons for firing [him] are pretext

masking discrimination.”). He has not done so.

      As to Smith’s First Amendment claim, the evidence shows that he would

have lost his job because of the reorganization effort, regardless of any protected

speech. Cook, 414 F.3d at 1318. For several years before Smith’s discharge, the

City sought to “identify any organizational changes or operational efficiencies”

that could improve its customer service. To achieve efficiency, it consolidated

three departments and terminated the heads of those departments. When the City

consolidated the Electric Utility Department in 2017, it did so with the dual goals

of making its services more efficient and eliminating tensions between the Power

Engineering and T&D divisions that impacted productivity. We do not second

guess the wisdom of those goals. Rowell, 433 F.3d at 798. Smith has not shown a

genuine issue of material fact that his complaints led to his termination and that the

consolidation based on the restructuring of the Electric Utility Department was just

a pretext for retaliating against him. Stanley, 219 F.3d at 1293; Cook, 414 F.3d at

1318. The defendants were entitled to summary judgment on Smith’s First

Amendment claim.

      Turning to the FWA claim, Smith has failed to rebut “head on” the

defendants’ legitimate, nonretaliatory reasons for terminating him. See Chapman,


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229 F.3d at 1030. He argues that the defendants’ proffered reasons are pretextual

because the Electric Utility Department had a budget surplus and did not need to

consolidate the divisions. But while the Electric Utility Department had a budget

surplus, the City had been operating on a deficit for several years. Recognizing

that, Fernandez asked the department heads to find ways to operate more

efficiently. One of the ways they believed they could increase efficiency was to

consolidate departments, which could lead to cost savings. So consolidating the

Electric Utility Department was a way to improve the general City budget

situation. And even aside from the City’s budget concerns, McGarrah testified that

saving money was not the sole reason for combining the divisions. He believed

that combining Power Engineering and T&D would resolve historical tensions

between the divisions and allow the Electric Utility Department to work more

efficiently. The fact that the Electric Utility Department had a surplus does not

rebut these legitimate reasons for consolidating the divisions, which led to the

termination of Smith’s position. Id.

      Smith also contends that the defendants’ reasons for hiring Ash instead of

him to head the consolidated division are pretextual because Ash was less qualified

for the job. He argues that the fact that McGarrah was “pissed” at him after he

expressed his opinion about the transmission line issue shows that the defendants

fired him in retaliation for his speech. See Sierminski, 216 F.3d at 950. Those


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arguments lack merit. The evidence does not show that Smith was more qualified

than Ash for the position. Although Smith had been an assistant general manager

for longer than Ash, Ash had worked for the City longer. As assistant general

manager for T&D, Ash supervised around 120 employees, while Smith supervised

only 25 to 30 employees in the Power Engineering division. Before working for

the City, Ash had been a supervisor with a public utility for 27 years. Smith had

worked at a public utility for only seven years before working for the City.

      McGarrah believed that Ash’s role as the assistant general manager of T&D

made him well suited to supervise the larger, consolidated division. McGarrah

also believed that Ash had a better working relationship with his peers. That Smith

instead of Ash had been chosen to serve as the assistant general manager of the

Power Engineering division, does not mean that Smith was more qualified to

supervise the newly consolidated division. And the fact that McGarrah allegedly

was “pissed” at Smith because he expressed his personal opinion about the

transmission line issue does not rebut the defendants’ reasons for choosing Ash to

lead the new division. Chapman, 229 F.3d at 1030. There is no genuine issue of

material fact about whether the defendants made a business decision that Ash was

better for the new job, and we do not act as a “super-personnel department” and

second guess that decision. See id. (quoting Elrod v. Sears, Roebuck & Co., 939

F.2d 1466, 1470 (11th Cir. 1991)).


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      Finally, Smith contends that he should have been offered the supervisor

position that was given to Gerrell. If he had applied for and had been qualified for

it, he would have been guaranteed an interview under the City’s layoff policy. But

Smith failed to show that he was qualified for the position, which involved

supervising line crews, the service team, and vegetation management. More

importantly, he never applied for the job. We cannot say that the City’s failure to

offer Smith a new supervisor position that he did not apply for showed that its

legitimate reason for discharging him from the other position was “unworthy of

credence.” Alvarez, 610 F.3d at 1265. Smith has failed to show that the

defendants’ reasons were pretext for unlawful retaliation. We affirm the district

court’s grant of summary judgment to the defendants on Smith’s First Amendment

and FWA claims.

                                        III.

      Smith also challenges the district court’s denial of his motion to remand his

FWA claim to the state court. We review the district court’s denial of Smith’s

motion to remand de novo and its decision to exercise supplemental jurisdiction

over the state law claim for abuse of discretion. Parker v. Scrap Metal Processors,

Inc., 468 F.3d 733, 738 (11th Cir. 2006); Henderson v. Wash. Nat. Ins. Co., 454

F.3d 1278, 1281 (11th Cir. 2006).




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      A party may remove a state court action to federal court when the relevant

federal court has diversity or federal question jurisdiction. See 28 U.S.C.

§ 1441(a). A federal court has supplemental jurisdiction over state law claims

when they “are so related to claims in the action within such original jurisdiction

that they form part of the same case or controversy under Article III of the United

States Constitution.” 28 U.S.C. § 1367(a). But a district court may decline to

exercise its supplemental jurisdiction when (1) the state law claim raises a novel or

complex issue of state law, (2) the claim substantially predominates over any

claims that the district court has original jurisdiction over, (3) the court has

dismissed all the other claims that it has original jurisdiction over, or (4) there are

other compelling reasons for declining jurisdiction. Id. § 1367(c)(1)–(4). The

court should consider “judicial economy, convenience, fairness, and comity” in

exercising its supplemental jurisdiction. Rowe v. City of Fort Lauderdale, 279

F.3d 1271, 1288 (11th Cir. 2002).

      The district court did not abuse its discretion by deciding the FWA claim on

the merits and denying Smith’s motion to remand the action to state court after

disposing of the federal claim. Henderson, 454 F.3d at 1281; Parker, 468 F.3d at

738. The First Amendment and FWA claims involved the same facts, making the

FWA claim “so related” to the First Amendment claim that it was “part of the same

case or controversy.” 28 U.S.C. § 1367(a).


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      Smith argues that the FWA claim should have been remanded to the state

court because the FWA is “unique and contains discrete multiple parts.” That

argument lacks merit. Florida courts analyze FWA claims under the McDonnell

Douglas burden-shifting framework. See Griffin, 259 So. 3d at 931. That

standard, which was developed by the Supreme Court in the Title VII context, is

routinely used by federal courts. See McDonnell Douglas Corp., 411 U.S. at 801–

05. The district court did not have to dive deep into the state law to resolve the

FWA claim. Because the FWA claim involved the same facts as the First

Amendment claim and the familiar burden-shifting framework applied, judicial

economy favored the court’s consideration of the FWA claim in its summary

judgment order. Rowe, 279 F.3d at 1288. The district court acted within its

discretion in exercising supplemental jurisdiction.

      AFFIRMED.




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