Federal Criminal Law Opinions

MICHAEL BRYANT, JOHN DRAKE, BECKY KELLEY, HERBERT LOWE, Plaintiffs-Appellees, v. CEO DEKALB CO. VERNON JONES, MARILYN BOYD DREW, MORRIS WILLIAMS, RICHARD STOGNER, in their individual capacities and in their official capacities, Defendants-Appellants, JOE STONE, Defendant. 11th Circuit. Case No. 06-16591. July 31, 2009. Appeals from the U.S. District Court for the Northern District of Georgia (No. 04-02462-CV-WSD).

(Before TJOFLAT, ANDERSON and COX, Circuit Judges.)

(TJOFLAT, Circuit Judge.) In 2001, DeKalb County, Georgia embarked on a wholesale plan to replace its white county managers with African Americans. Three white managers, Becky Kelley, Michael Bryant, and John Drake, proceeding under 42 U.S.C. § 1983, sued the county’s Chief Executive Officer, Vernon Jones, who devised the plan and monitored its execution, and three subordinates who assisted him, Marilyn Boyd Drew, Morris Williams, and Richard Stogner, for discriminating against them on account of their race in violation of 42 U.S.C. § 19811 and the Equal Protection Clause of the Fourteenth Amendment. A fourth manager, Herbert Lowe, an African American, also joined the suit, alleging that the defendants retaliated against him because he refused to assist them in carrying out Jones’s plan of racial discrimination.

All defendants claimed as an affirmative defense that they were entitled to qualified immunity; Stogner additionally asserted that he was entitled to legislative immunity. The defendants moved the district court for summary judgment, basing their motions on these immunity defenses. The court denied the defendants’ motions, and they appeal.2 We now affirm the district court’s rulings on qualified immunity but reverse the court’s denial of Stogner’s defense of legislative immunity.

I.

A.3
In November 2000, Vernon Jones was elected DeKalb County’s Chief Executive Officer (“CEO”).4 Jones was both the youngest person elected as CEO of the county and also the first African American elected to the position. After assuming office on January 1, 2001, Jones publicly announced plans to make the employees of DeKalb County “look like DeKalb County.” Jones later explained that this meant bringing a “darker administration” to “the new DeKalb County.” To accomplish this goal, Jones and his administration implemented an aggressive restructuring program of the county’s government.5 One part of this reorganization focused on the management of the county’s Parks and Recreation Department (“Parks Department”).

Jones’s policy initiatives, which he specifically aimed at the Parks Department, were implemented by members of the county’s senior management who were positioned either within DeKalb County generally or the Parks Department specifically. These managers included Richard Stogner, a white male who served as Jones’s executive assistant; Morris Williams, a black male who served as an Assistant County Administrator; and Marilyn Boyd Drew, a black female who initially served as the Parks Department’s Director of Recreation Services but was soon promoted to the position of Acting Director of the Parks Department and later named permanent director of the department.

At the time Jones assumed office, Becky Kelley, a white female who had been employed by DeKalb County since 1976, was Director of the Parks Department — a position she had held since 1992. Kelley exercised authority over the department’s operations and programs. Michael Bryant, a white male, was Deputy Director of Revenue Management and Support in the Parks Department, and he reported to Kelley. Bryant had served in the position since 2000. John Drake, a white male who was first employed by the county in 1975, was serving as the Assistant Director of the Purchasing and Contracting Department. Herbert Lowe, an African American male, was hired on September 16, 2002, as the Deputy Director of Strategic Management and Development of the Parks Department.

Kelley, Bryant, and Drake allege that, as a result of Jones’s plan to create a “darker administration,” they were discriminated against and exposed to a hostile work environment on account of their race. Jones’s goal, they claim, was to force them to terminate their employment so he could replace them with African American managers. Lowe, on the other hand, claims that he refused to cooperate in Jones’s plan to force out white managers, leading Jones and his administration to eliminate his job in retaliation.

B.

1.
During her nine years of service as Parks Department Director, Kelley had performed her duties without complaint. Kelley claims, however, that from the instant Jones became CEO he was openly hostile toward her. For instance, during a phone call, Jones became very angry and confrontational with her. On a second occasion, while in a private meeting in Jones’s office, Jones screamed at Kelley and approached her in a menacing way, leading her to fear that he was going to strike her.

Jones also began imposing restrictions on Kelley’s job duties by prohibiting her from communicating with members of the press and DeKalb County’s Board of Commissioners. When Kelley expressed concern over her treatment to Stogner, he replied that “she didn’t understand the geopolitical issues in DeKalb County and that she could not relate to powerful black men.”6

Kelley’s job responsibilities were further limited when Jones prohibited her from interviewing employment candidates unless Williams was present. Consistent with this new policy, Kelley and Williams interviewed candidates for the position of Parks Department Deputy Director of Recreation Services. After conducting several interviews, Kelley, based on her years of experience in the Parks Department, determined that a white male was the top candidate. Williams, however, told Kelley that they could not recommend the candidate to Jones because Jones would not accept a white candidate for the position. Stogner later directed Kelley to recommend Drew, a less qualified African American candidate, for the position so that Kelley could “get in good” with Williams. Drew was hired on April 30, 2001.

After Drew was hired, Jones and Williams continued to narrow the scope of Kelley’s responsibilities by excluding her from all discussions and decisions regarding the operations of the Parks Department. Instead, Jones and Williams began to coordinate with Drew, who was Kelley’s subordinate. Kelley was also excluded from participating in the Parks Department’s hiring process. According to Stogner, Kelley was shut out of the Parks Department’s decision making process because Jones wanted “to showcase black parks and showcase black employees.”

Without warning or explanation, Jones issued an executive order on February 12, 2002, which Stogner drafted, removing Kelley as Parks Department Director and reassigning her to the county’s Greenspace Program.7 Jones then appointed Drew to serve as Acting Director of the Parks Department. Although Kelley’s reassignment did not affect her salary or benefits, it did bring about a significant change in her duties and authority. For instance, Kelley had no title, and she reported to an Assistant County Administrator8 rather than the CEO’s office. Drew also attempted to move Kelley to a windowless office that had previously been used as a storage area.9 While in the Greenspace Program, Kelley found that any input she offered concerning the program was ignored, causing her to conclude that she had no authority or responsibility — in fact, she described her job as “coloring maps.”10 On September 25, 2002, seven months after her reassignment, Kelley submitted her resignation, effective October 9, 2002.

2.
After Drew became Parks Department Director, Bryant alleged that she, at Jones’s urging, began making numerous changes within the department that adversely affected him.11 For instance, Drew began assigning Bryant, who served as the Deputy Director of Revenue Management and Support, duties ordinarily performed by the Deputy Director of Recreation Services. Also, in March 2002, after Bryant complained to Drew about what he considered to be excessive expenditures made by a black contractor who had been hired to perform services at the county golf course, Drew reassigned fiscal and contracting oversight for golf and tennis contracts from Bryant to Drake. Drew assigned operational responsibilities for golf and tennis contracts to Detrick Stanford, a black employee who reported to Drew.

Approximately sixty days after Drew changed Bryant’s duties, she moved him from the Parks Department’s primary office in Decatur to a satellite office in Tucker, Georgia. Bryant claims that he made numerous requests for personnel and equipment to assist him, but these requests were denied. Drew also excluded him from making decisions and participating in meetings concerning matters for which he was responsible while she sought greater input from African American managers. Drew also required Bryant and other white managers to schedule appointments if they wanted to meet with her while allowing African American managers open access.

During this time, Drew repeatedly threatened to terminate or suspend Bryant and drafted letters to that effect, which she left in plain sight for Bryant and others to see. She, however, never submitted the letters, and Bryant was never suspended or terminated.12 Bryant continues to serve as Deputy Director of Revenue Management and Support Services but only performs the limited duties assigned to him by Drew.13

3.
After Jones removed Kelley as Parks Department Director, he had Drake, who had been with DeKalb County for over twenty-five years, transferred from the Purchasing and Contracting Department, where he had been the Assistant Director, to the Parks Department, where he was again to serve as Assistant Director. Drake told Stogner that he was interested in becoming the new Parks Department Director, but Stogner told him that, although he was qualified for the position, Drew, a black female, would be given the position because Jones had made “too many political commitments.”14 Jones and Stogner nevertheless wanted Drake transferred to the Parks Department to “prop up” Drew.15

After Drake’s transfer to the Parks Department, Drew eliminated all of the duties that he would typically perform as Assistant Director, relegating him to performing tasks usually assigned to lower-level employees. Drew also modified the organizational hierarchy by requiring Deputy Directors to report directly to her rather than Drake. Drew also removed Drake as the Parks Department’s representative to the county bond program group, of which he had been a member since 1986, and excluded him from discussions concerning the department’s operations. Drake continues to work as Assistant Director of the Parks Department.

4.
Lowe, an African American male and, at one time, a personal friend of Jones, began working as the Parks Department’s Deputy Director of Strategic Management and Development on September 16, 2002. Lowe claimed that he was told by Joe Stone, DeKalb County’s Director of Human Resources and an African American, that Jones was aggressively seeking to increase the number of African American managers in the county.16 According to Lowe, Stone further revealed that, pursuant to Jones’s edict, white applicants would never be considered for Lowe’s position and that “white folks” were generally ineligible for positions in DeKalb County. Lowe stated that Jones, along with Drew and Williams, informed him of his broad plan to eliminate white managers and replace them with African Americans. Jones told Lowe that he wanted him to be a “team player.” Detailing his plan, Jones revealed that “we don’t fire people around here; we eliminate their position.” When Drew welcomed Lowe to the Parks Department, she reiterated that Jones wanted white managers forced out of the department and replaced with African Americans, and she expressed her unequivocal support of Jones’s policies and her intent to comply with his wishes.

Jones also sought Lowe’s assistance in executing his agenda to create a “darker administration.” During their conversations, Lowe claimed that Jones referred to Bryant as a “white bastard” and expressed his wish to force Kelley, Bryant, and Drake out of the Parks Department. Singling Kelley out, Jones stated that he wanted to eliminate her from the Parks Department because she had previously terminated African Americans and, in his view, had allowed white associations to control the parks. To accomplish Jones’s goal of eliminating white managers, Drew instructed Lowe to “dig up dirt” on all white employees within the department and ensure that white employees were not placed in highly visible positions. In particular, Drew directed Lowe not to speak with Drake about important issues, hoping that, by keeping him in the dark, Drake would become frustrated and ultimately fail in his position. Drew also revealed to Lowe that she had transferred Bryant to a position for which he had no experience in the hopes that it would create the appearance that Bryant was incapable of performing his job. Another tactic Drew employed to further Jones’s plan was to antagonize white managers during meetings; thus, there were several instances where Drew met with Lowe to discuss how she could frame issues and questions to annoy and embarrass Bryant and Drake. In the end, according to Lowe, Jones, Drew, and Williams hoped that by creating a negative and hostile work environment for the white managers, and limiting their opportunities for responsibility and advancement, the white managers would resign.

Lowe refused to participate in the plan and failed to carry out any orders designed to discriminate against whites. Jones told Lowe that by refusing to assist in executing his plan he was not being a “team player” and did not fully appreciate and understand what Jones was trying to accomplish. Lowe reiterated that he did not want to be a part of Jones’s scheme, and he requested a transfer out of the Parks Department. Lowe stated that if he was not reassigned, he would resign.

Soon after this exchange with Jones, Lowe was moved to an office in Jones’s executive suite. While Lowe continued to work for the Parks Department, he also began working on several projects directly assigned to him by Jones. On July 23, 2003, Drew hired Marvin Billups, an African American, as the Parks Department Deputy Director of Strategic Management and Development, the same position held by Lowe. Billups’s employment was characterized as “time-limited,” meaning that the appointment was temporary. Because it was time-limited, the position did not have to be publicly advertised and was not open to a competitive hiring process. Before the position expired, Billups was named Deputy Director of Recreation Services. Despite the title change, Billups continued to perform the same tasks typically assigned to the Deputy Director of Strategic Management and Development.

Jones later submitted to the County Board of Commissioners the 2004 proposed budget, which Stogner developed and drafted with Drew’s assistance. A feature of the proposed budget was the elimination of funding for Lowe’s Deputy Director position. On January 27, 2004, the Board of Commissioners approved the budget, and Lowe’s position was dissolved. Out of 600 positions listed on the budget, Lowe’s was the only position eliminated. Billups, who had been transferred out of the abolished position, continued working for DeKalb County performing the same tasks previously assigned to the Deputy Director of Strategic Management and Development but under the new job title of Deputy Director of Recreation Services. Soon thereafter, Stogner offered Lowe the position of Parks Maintenance Coordinator, a job that came with less responsibility and a lower salary. Lowe refused the offer and resigned.

Lowe appealed the Board’s decision to eliminate his position to the DeKalb County Human Resources Department. Although he was provided a hearing, Lowe did not attend because Stone convinced him that there was “no use” to appeal.

C.
On August 24, 2004, Kelley, Bryant, Drake, and Lowe filed a six-count complaint against Jones, Drew, Stogner, and Williams.17 Counts I, II, and IV, each brought under 42 U.S.C. § 1983, prayed for compensatory and punitive damages. Count I alleged that the defendants discriminated against Kelley, Bryant, and Drake on account of their race in violation of the Equal Protection Clause of the Fourteenth Amendment by subjecting them to hostile work environments, and, in Kelley’s case, to a constructive discharge. Count II alleged that the discrimination Kelley, Bryant, and Drake sustained in Count I also infringed their rights under 42 U.S.C. § 1981. Count IV alleged that the defendants retaliated against Lowe, in violation of 42 U.S.C. § 1981, for refusing to participate in the defendants’ scheme to discriminate against white managers.

The defendants individually answered the plaintiffs’ complaint by denying liability and asserting as an affirmative defense that they were entitled to qualified immunity. Stogner, in responding to Count IV, also asserted legislative immunity as a defense. After discovery closed, the defendants separately moved for summary judgment, relying principally on their qualified and legislative immunity defenses. In an order entered on November 10, 2006, the district court denied the defendants qualified immunity, stating that it did “not believe the law allows a public official defendant to engage in calculated racial discrimination costumed in a racially neutral garb of administrative actions so it can masquerade as a qualified immunity defense.” The court also rejected Stogner’s defense of legislative immunity.18 We now consider the merits of the defendants’ appeals.

II.
We review de novo a district court’s ruling granting or denying qualified immunity, resolving all issues of material fact in favor of the non-moving party. See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002) [15 Fla. L. Weekly Fed. C329a].19

A.
The doctrine of qualified immunity shelters government officials performing discretionary functions “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982); see also Anderson v. Creighton, 483 U.S. 635, 638-639, 107 S. Ct. 3034, 3038-39, 97 L. Ed. 2d 523 (1987); Wood v. Kesler, 323 F.3d 872, 877 (11th Cir. 2003) [16 Fla. L. Weekly Fed. C381a]. The doctrine “balances two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. ___, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565 (2009) [21 Fla. L. Weekly Fed. S588a].

To receive qualified immunity, the public official must establish that he was engaged in a “discretionary function” at the time he committed the allegedly unlawful act. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1263-64 (11th Cir. 2004) [17 Fla. L. Weekly Fed. C593a]; see 1 H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 162 (Tent. Ed. 1958) (“Discretion” is “the power to choose between two or more courses of action each of which is thought of as permissible.”). If the official demonstrates that he was engaged in a discretionary function, the burden shifts to the plaintiff to prove that the official is not entitled to qualified immunity. Cottone v. Jenne, 326 F.3d 1352, 1358 (11th Cir. 2003) [16 Fla. L. Weekly Fed. C511a]. This requires plaintiff to satisfy the two-part test prescribed by the Supreme Court in Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001) [14 Fla. L. Weekly Fed. S361a]. Under Saucier, a plaintiff must first show that the defendant violated a constitutional right and then demonstrate that the constitutional right was clearly established at the time of the alleged wrongful act. 533 U.S. at 201, 121 S. Ct. at 2156. If a court, after viewing all the evidence in the light most favorable to the plaintiff and drawing all inferences in his favor, determines that the plaintiff has satisfied these two requirements, the defendant may not obtain qualified immunity. Holloman, 370 F.3d at 1264.

While Saucier mandated this two-part order of battle, the Supreme Court, upon realizing the inefficiency of such an inelastic approach, recently retreated from this protocol, finding that “[t]he judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. __, 129 S. Ct. at 818. The Supreme Court noted, however, that its “decision does not prevent the lower courts from following the Saucier procedure; it simply recognizes that those courts should have the discretion to decide whether that procedure is worthwhile in particular cases.” Pearson, 555 U.S. __, 129 S. Ct. at 821.

In this case, the officials argue — with respect to each claim the plaintiffs asserted — that, as a matter of law, (1) they were engaged in a discretionary function when they committed the acts at issue, (2) the acts did not violate a statutory or constitutional right, and (3) if their acts did violate a statutory or constitutional right, the right was not clearly established at the time.

1.
We need not tarry long in resolving the first issue — whether defendants Jones, Williams, Drew, and Stogner, were engaged in a discretionary function when they allegedly violated the plaintiffs’ constitutional and statutory rights — as we note that the plaintiffs failed to raise the issue before the district court; therefore, the issue is not properly before us. See Johnson v. United States, 340 F.3d 1219, 1228 n. 8 (11th Cir. 2003) (“Arguments not raised in the district court are waived.”); Hurley v. Moore, 233 F.3d 1295, 1297-98 (11th Cir. 2000) (same).

Resolving the second and third issues, on the other hand, requires extended discussion. Our task is to determine whether the defendants’ actions violated Kelley, Bryant, and Drake’s federal rights, and, if so, whether those rights were clearly established. See Wood v. Kesler, 323 F.3d 872, 877 (11th Cir. 2003) [16 Fla. L. Weekly Fed. C381a]. We understand the defendants to argue that they are entitled to qualified immunity because, as a matter of law, Kelley, Bryant, and Drake failed to present sufficient evidence to establish that their federal rights to be free from racial discrimination in their employment were violated. Specifically, the defendants aver that Kelley, Bryant, and Drake failed to make out a hostile work environment claim and that Kelley failed to establish her constructive discharge claim. We turn first to the hostile work environment claims.

2.
To establish a hostile work environment claim under the Equal Protection Clause and 42 U.S.C. § 1981, an employee (or former employee) must show harassing behavior “sufficiently severe or pervasive to alter the conditions of [his or her] employment.” Pa. State Police v. Suders, 542 U.S. 129, 133, 124 S. Ct. 2342, 2347, 159 L. Ed. 2d 204 (2004) [17 Fla. L. Weekly Fed. S391a]. This requires that the employee prove the following:

(1) that he [or she] belongs to a protected group; (2) that he [or she] has been subject to unwelcome harassment; (3) that the harassment [was] based on a protected characteristic of the employee, such as national origin; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) that the employer is responsible for such environment under either a theory of vicarious or of direct liability.

Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) [15 Fla. L. Weekly Fed. C172a].20

The defendants concede the first element and focus on the next three, arguing that Kelley, Bryant, and Drake failed, as a matter of law, to show that the harassment they experienced, if any, “was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment.” Id.

As we noted in Miller, this element contains both subjective and objective components; that is, “to be actionable, [the harassment] must result in both an environment that a reasonable person would find hostile or abusive and an environment that the victim subjectively perceive[s] to be abusive.” Miller, 277 F.3d at 1276 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S. Ct. 367, 370-71, 126 L. Ed. 2d 295 (1993)). Because defendants advance no argument concerning whether Kelley, Bryant, and Drake subjectively believed they were suffering abuse on account of their race, we focus on the objective component of the inquiry.

While it is true that the objective element is not subject to mathematical precision, we can infer that an environment is “hostile” or “abusive” from the circumstantial facts viewed in their proper context. Harris, 510 U.S. at 21-22, 114 S. Ct. at 370-71. This requires that we look to factors such as “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. at 23, 114 S. Ct. at 371; see also Allen v. Tyson Foods, 121 F.3d 642, 647 (11th Cir. 1997).

The plaintiffs presented evidence that Jones, upon taking office, boldly implemented a plan to create a “darker administration” by refusing to hire whites for open managerial positions, demoting or transferring already employed white managers, and filling the positions they had been occupying with blacks. Jones, employing the assistance of Drew, Williams, and Stogner, targeted Kelley, Bryant, and Drake and endeavored to force them out of their positions by adversely altering their job responsibilities and otherwise undermining their authority. The record contains several examples of the tactics Jones and his subordinates used.

On several occasions, Jones angrily confronted Kelley. On one occasion, he approached her in a physically threatening manner. Following this incident, Kelley was forbidden to speak to the press or to communicate with the Board of Commissioners, even though this was part of her job as Director of the Parks Department. Jones stripped Kelley of her hiring authority, requiring her to interview candidates for vacancies with Williams. After she and Williams conducted interviews for the position of Deputy Director of Recreation Services, Williams ignored her suggestion that a white male should be chosen because Jones wanted an African American in the position, irrespective of qualifications. After complaining about the manner in which she was being treated, Stogner told Kelley that she failed to comprehend the overall political environment and could not understand or relate to “powerful black men.” Signaling Jones’s intention to replace her with a black manager, Stogner told Kelley that Jones wanted “to showcase black parks and black employees.” Eventually, Kelley was demoted (and subsequently replaced by Drew) and reassigned to the county’s Greenspace program, where her responsibilities were further curtailed. She ultimately resigned.

Bryant showed that Drew, after Jones installed her as Director of the Parks Department, openly treated him differently from black employees. Drew’s actions were assuredly in accordance with Jones’s diktat to force out and replace white managers with African American managers. The record indicates that Drew (1) excluded Bryant from meetings and declined to allow him input into matters for which he was responsible, while seeking increased input from African American managers; (2) failed to provide him adequate support staff and equipment to perform his job; and (3) required white managers to make appointments to speak with her, while maintaining an open-door policy for African American managers. In addition, on several occasions, Drew drafted letters stating that Bryant was being terminated or suspended and left them in plain view so that Bryant and other employees could see them. Drew, however, never submitted the letters to Human Resources or delivered them to Bryant.

Jones precluded Drake from applying for the position of Director of the Parks Department because Jones had made “too many political commitments.” Presumably, this meant that Jones had made too many commitments to the black community to permit a white person to occupy the position. Stogner told Drake that his primary duty while in the Parks Department, was to “prop up” Drew. Also, Drew, in keeping with Jones’s policy, removed Drake from his responsibilities as Assistant Director of the Parks Department and assigned him to perform the duties of a lower-level deputy director. Drew also (1) told department deputy directors to report to her, rather than Drake; (2) removed Drake as the Park Department’s representative to the bond program, of which he had been a member since 1986; (3) prevented him from speaking to the media; and (4) excluded him from having any input into the Department’s operations.

We find that these facts establish a pattern of harassing behavior “sufficiently severe or pervasive to alter the conditions of [the plaintiffs'] employment.” Suders, 542 U.S. at 133, 124 S. Ct. at 2347.

3.
We likewise find, based on the facts as stated in part II.A.2, supra, that Kelley has established her constructive discharge claim against defendants Jones, Williams, and Stogner.21 “Constructive discharge occurs when an employer deliberately makes an employee’s working conditions intolerable and thereby forces him to quit his job.” Munday v. Waste Mgmt. of North America, Inc., 126 F.3d 239, 244 (4th Cir. 1997); accord Young v. Southwestern Savings and Loan Ass’n, 509 F.2d 140, 144 (5th Cir. 1975) (“The general rule is that if the employer deliberately makes an employee’s working conditions so intolerable that the employee is forced into an involuntary resignation, then the employer has encompassed a constructive discharge and is as liable for any illegal conduct involved therein as if it had formally discharged the aggrieved employee.”).22 A plaintiff must show “the work environment and conditions of employment were so unbearable that a reasonable person in that person’s position would be compelled to resign.” Virgo v. Riviera Beach Assoc., Ltd., 30 F.3d 1350, 1363 (11th Cir. 1994); see also Poole v. Country Club of Columbus, Inc., 129 F.3d 551, 553 (11th Cir. 1997); Kilgore v. Thompson & Brock Mgmt., Inc., 93 F.3d 752, 754 (11th Cir. 1996). Establishing a constructive discharge claim is a more onerous task than establishing a hostile work environment claim. Landgraf v. USI Film Prods., 968 F.2d 427, 430 (5th Cir. 1992) (“To prove constructive discharge, the plaintiff must demonstrate a greater severity or pervasiveness of harassment than the minimum required to prove a hostile working environment.”), aff’d, 511 U.S. 244, 114 S. Ct. 1483, 128 L. Ed. 2d 229 (1994); see also Steele v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316-18 (11th Cir. 1989) (affirming district court’s finding that plaintiffs established that they were subjected to a hostile work environment but were not constructively discharged); Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 905-06 (11th Cir. 1988) (same).

“An employer may defend against [a constructive discharge claim] by showing both (1) that it had installed a readily accessible and effective policy for reporting and resolving complaints of [discrimination], and (2) that the plaintiff unreasonably failed to avail herself of that employer-provided preventive or remedial apparatus.” Suders, 542 U.S. at 134, 124 S. Ct. at 2347. A defendant cannot avail himself of this defense, however, “if the plaintiff quits in reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation, for example, a humiliating demotion, extreme cut in pay, or transfer to a position in which she would face unbearable working conditions.” Id. Since Kelley has introduced convincing evidence of a humiliating demotion in this case, Defendants may not assert this defense.

Although we are careful not to gild the lily, Kelley has introduced shocking evidence of an overt and unabashed pattern of discrimination. Jones was abusive to Kelley on numerous occasions, including an interaction where he appeared ready to assault Kelley physically. Additionally, from Williams’s refusal to hire a white candidate, to Stogner’s condescending and racially charged comments that Kelley couldn’t relate to black men or that she was too ignorant or idealistic to understand racial politics in DeKalb County, it was clear that Kelley was not welcome to continue working for DeKalb County on account of her being white, and a reasonable person in her position would have had no choice but to resign. See Virgo, 30 F.3d at 1363. Kelley has, accordingly, established her claim.

4.
Although Kelley, Bryant, and Drake provided sufficient evidence to satisfy the “severe and pervasive” element of the hostile work environment claim, and Kelley has successfully made out a case of constructive discharge, Jones argues that the district court erred in concluding that he could be held accountable in his supervisory capacity for the alleged discrimination. In other words, he claims that the court erred in finding that his actions were a proximate cause of the hostile work environment alleged by Kelley, Bryant, and Drake, and of Kelley’s constructive discharge. We disagree.

It is well established that liability in § 1983 cases cannot be premised solely upon a theory of respondeat superior. Crawford v. Carroll, 529 F.3d 961, 978 (11th Cir. 2008) [21 Fla. L. Weekly Fed. C758a]; Braddy v. Florida Dep’t of Labor & Employment Security, 133 F.3d 797, 801 (11th Cir. 1998). In Brown v. Crawford, 906 F.2d 667 (11th Cir. 1990), we observed that supervisory liability

occurs either when the supervisor personally participates in the alleged constitutional violation or when there is a causal connection between actions of the supervising official and the alleged constitutional deprivation. The causal connection can be established when a history of widespread abuse puts the responsible supervisor on notice of the need to correct the alleged deprivation, and he fails to do so. The deprivations that constitute widespread abuse sufficient to notify the supervising official must be obvious, flagrant, rampant, and of continued duration, rather than isolated occurrences.

Id. at 671. Additionally, a “supervisor” is not merely a person who possesses authority to oversee plaintiff’s job performance but a person with the power directly to affect the terms and conditions of the plaintiff’s employment. See Andonissamy v. Hewlett-Packard Co., 547 F.3d 841, 848 (7th Cir. 2008).

The evidence before the district court established that Jones contrived a broad plan to eliminate white managers and replace them with black managers so as to create a “darker administration.” As a means of implementing this scheme, Jones and his administration would “eliminate” the white managers’ positions rather than simply firing the white managers. His discriminatory intent was further made plain by his open expressions of racial animus, calling Bryant a “white bastard” and declaring that he wanted to terminate Kelley because he felt she let “whites” control the parks. Furthermore, his assertion that his actions were unconnected to Kelley’s constructive discharge claim, considering that he issued the executive order that stripped her of her position as Director of the Parks Department, is especially farcical. In sum, this evidence showed compellingly that Jones, as the CEO, was the architect of a racially discriminatory scheme, a scheme that was designed to produce the overt discrimination the plaintiffs suffered. Unquestionably, he spawned the claims the plaintiffs have brought against him.

B.
Having found that Kelley, Bryant, and Drake presented evidence sufficient to sustain their several claims, we take the next step in the qualified immunity analysis and determine whether their rights to be free of the sort of discrimination they endured were clearly established at the time of the defendants’ discriminatory acts. See Wood, 323 F.3d at 877-78. We have often noted the “patently obvious illegality of racial discrimination in public employment.” Smith v. Lomax, 45 F.3d 402, 407 (11th Cir. 1995); see also Yeldell v. Cooper Green Hosp., Inc., 956 F.2d 1056, 1064 (11th Cir. 1992) (finding it beyond question that laws proscribing intentional race discrimination in the work place were clearly established); Brown v. City of Fort Lauderdale, 923 F.2d 1474, 1478 (11th Cir. 1991) (same). The defendants argue, however, that since specific plaintiffs failed to file complaints concerning the specific discriminatory acts that occurred, they were not afforded adequate notice that their behavior was unlawful. This argument is meritless.

In Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982), the Supreme Court eliminated any subjective feature of its test for qualified immunity, finding that considerations of the official’s state of mind while committing the allegedly unlawful acts have proven incompatible with its “admonition . . . that insubstantial claims should not proceed to trial.” Id. at 815-16, 102 S. Ct. at 2737. This is so because individualized questions concerning an official’s state of mind are inherently fact-based and are thus inappropriate for resolution on summary judgment. See id. at 816, 102 S. Ct. at 2737. Accordingly, the question is not whether the defendants actually knew, or should have known, that their actions were unlawful, but, rather, whether reasonable officials occupying their positions would have known that their actions were unlawful. Id. at 818, 102 S. Ct. at 2738. Because a reasonable official would have known that discriminating against county managers on account of their race was unlawful, the district court ruled correctly in denying the defendants qualified immunity.

III.
We turn now to Lowe’s claim that Stogner and Drew retaliated against him for refusing to participate in the achievement of Jones’s discriminatory goal. Lowe contends that he was discriminated against on account of his race because, as an African American, he refused to go along with Jones’s plan.23 As a starting point, defendants argue that Lowe’s claim fails because 42 U.S.C. § 1981(a) does not provide a private right of action for retaliation. The Supreme Court recently dispensed with this argument in CBOCS West, Inc. v. Humphries, __ U.S. __, 128 S. Ct. 1951, 1961, 170 L. Ed. 2d 864 (2008) [21 Fla. L. Weekly Fed. S266a], finding that “42 U.S.C. § 1981 encompasses claims of retaliation.”24 Recognizing that Lowe has a private right of action, we consider the merits of defendants’ other affirmative defenses.

A.
Stogner and Drew first assert that the district court erred by concluding that Lowe’s retaliation claim was not precluded by the earlier administrative adjudication of his claim. They stress that Lowe was afforded an administrative hearing to allow him to challenge the elimination of his position, and, because the hearing officer issued a ruling adverse to him, Lowe is barred from relitigating the issue. Lowe’s response is two-fold. First, he argues the preclusion issue cannot be raised here because the district court denied the defendants’ motion to certify the issue for appellate review pursuant to 28 U.S.C. § 1292(b). Second, even if the issue is properly before this court, the district court was correct in holding that it was not bound by the administrative decision because the retaliation issue was not before the hearing officer.

After the district court rejected their qualified immunity defenses, Stogner and Drew moved the court, pursuant to 28 U.S.C. § 1292(b),25 to enter an order certifying for appellate review the issue of whether Lowe’s retaliation claim was barred by the administrative adjudication. The district court denied the motion. Although the district court declined to certify the issue, we may nevertheless exercise pendent appellate jurisdiction and consider it so long as the issue is “inextricably intertwined with an appealable decision or when review of the former decision is necessary to ensure meaningful review of the latter.” Tamiami Partners, Ltd. v. Miccosukee Tribe of Indians, 177 F.3d 1212, 1221 (11th Cir. 1999) (internal quotation marks omitted). Exercising pendent jurisdiction over the preclusion issue is warranted in this case. The issue is “inextricably intertwined” with the qualified immunity issues because resolution of the preclusion issue in favor of the defendants will necessarily dispense of any need to pass on the immunity issues. Also, if we decline to decide the preclusion issue and later find that the defendants are not entitled to qualified immunity, Lowe’s retaliation claim will proceed to trial. If a jury finds in favor of Lowe and, on appeal from final judgment, we hold that Lowe was procedurally barred from bringing his claim, our interlocutory review of the qualified immunity issue will be rendered nugatory, thereby frustrating the interests of judicial economy. See Schmelz v. Monroe County, 954 F.2d 1540, 1543 (11th Cir. 1992) (per curiam) (exercising pendent appellate jurisdiction over merits of case along with qualified immunity question so as to dispense with all federal issues).

Satisfied that the preclusion issue is properly before us, we proceed to the question of whether Lowe’s claim is barred by the decision of the DeKalb County administrative adjudication. In Travers v. Jones, 323 F.3d 1294 (11th Cir. 2003) [16 Fla. L. Weekly Fed. C405a], we encountered this very issue. In Travers, the plaintiff appealed his thirty-day suspension from the fire department for insubordination and unbecoming conduct during a demonstration in which he engaged his superiors in a heated verbal exchange. A hearing officer upheld the suspension after finding that the facts surrounding the events “did not indicate any non-job-related factor or any errors of fact” warranting reversal of the suspension. Id. at 1296. The plaintiff then brought suit in federal court claiming he had been disciplined for engaging in protected union activity and that his First and Fourteenth Amendment rights were violated. On appeal, we found that the plaintiff was bound by the hearing officer’s findings. We concluded that the findings were binding because “the employee received a full and fair opportunity to present his case in the administrative hearing.” Id. We went on to explain that “[w]hen a state agency, acting in a judicial capacity, resolves disputed issues of fact properly before it that the parties have had an adequate opportunity to litigate, federal courts must give the agency’s fact finding the same preclusive effect to which it would be entitled in the State’s court.” Id.

The facts of this case, however, distinguish it from Travers. The record shows that, under DeKalb County’s administrative procedures, Lowe could only appeal the decision of the Board of Commissioners to eliminate his job by arguing that the Commissioners could not a establish a lack of funding or lack of work to justify their decision.26 Lowe could not challenge the underlying discriminatory conduct he contends was the fountainhead of his termination because the hearing officer lacked the authority to consider that issue. Moreover, the hearing officer made very narrow and perfunctory factual findings tailored solely around his limited jurisdiction. His findings were as follows:

The undersigned finds, in the instant case, that, in fact, the DeKalb County Board of Commissioners voted not to appropriate funding for the position of Deputy Director, Strategic Management, Park[s] and Recreation Department.

Plainly, the issue before the hearing officer was distinct from the issue presented to the district court, which was not whether Lowe’s job was eliminated because of a true shortage of funding but whether Lowe’s job was abolished in retaliation for his refusal to participate in a scheme to discriminate against white managers. Furthermore, aside from the administrative adjudication bar, traditional concepts of collateral estoppel, or issue preclusion, do not bind this court. Collateral estoppel’s operation requires that (1) an identical issue was presented in the prior proceeding; (2) the issue was a critical and necessary part of the prior proceeding; (3) the issue was fully and fairly litigated in the previous proceeding; (4) the parties in the two proceedings were identical; and (5) a final decision was rendered by a court of competent jurisdiction. See Wingard v. Emerald Venture Fla. LLC, 438 F.3d 1288, 1293 (11th Cir. 2006) [19 Fla. L. Weekly Fed. C267a]; see generally Brown v. R.J. Reynolds Tobacco Co., 576 F. Supp. 2d 1328, 1340-41 (M.D. Fla. 2008). On their face, the hearing officer’s findings relate solely to the issue of whether the Board of Commissioners voted to abolish Lowe’s job. Therefore, Lowe’s retaliation claim is not barred, as the administrative adjudication did not dispose of the allegations and arguments underpinning Lowe’s retaliation claim.

B.
For his part, Stogner argues that the district court erred in failing to grant him absolute legislative immunity for developing the 2004 budget, which provided for the elimination of Lowe’s position as Deputy Director of Strategic Management and Development of the Parks Department.27 Lowe, in response, argues that Stogner was not engaging in legitimate legislative activities when crafting the 2004 budget with respect to Lowe’s position. Instead, according to Lowe, Stogner used the proposed budget as an artifice for what was in fact a retaliatory personnel decision.28 In resolving this matter, we bifurcate our analysis by first examining the broad principles underlying legislative immunity and then considering their application to the case before us.

1.
The Speech or Debate Clause of our Constitution provides that, “for any Speech or Debate in either House, [Senators and Representatives] shall not be questioned in any other place.” U.S. Const. art. I, § 6, cl. 1. By its terms, the Clause is limited to members of Congress. See Lake Country Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 404, 99 S. Ct. 1171, 1179, 59 L. Ed. 2d 401 (1979). Nevertheless, state and local legislators, and their surrogates, enjoy a parallel immunity from civil liability for their legislative acts. See Gravel v. United States, 408 U.S. 606, 618, 92 S. Ct. 2614, 2623, 33 L. Ed. 2d 583 (1972).29

Doctrinally, legislative immunity emanates from the well-spring of the federal common law; nevertheless, it is similar in scope and object to the immunity provided federal legislators under the Speech or Debate Clause. Indeed, when the Supreme Court initially recognized state legislative immunity as a constituent of the federal common law, it looked to its Speech or Debate Clause jurisprudence for guidance anent the contours of the doctrine. See Tenney v. Brandhove, 341 U.S. 367, 376-79, 71 S. Ct. 783, 788-90, 95 L. Ed. 1019 (1951). In later decisions, the Court acknowledged that the legislative immunity federal and state legislators enjoy are essentially coterminous. See Supreme Court of Va. v. Consumers Union of the U.S., Inc., 446 U.S. 719, 732-33, 100 S. Ct. 1967, 1974-75, 64 L. Ed. 2d 641 (1980). By analogy, these principles afford legislators at the regional level similar protection to the extent they act in a capacity comparable to that of state legislators. See Lake Country Estates, Inc., 440 U.S. at 404, 99 S. Ct. at 1179; Ellis, 981 F.2d at 1194. Furthermore, in this circuit, we have extended this immunity to local legislators, Woods v. Gamel, 132 F.3d 1417, 1419 (11th Cir. 1998) (citing Hernandez v. City of Lafayette, 643 F.2d 1188, 1193 (5th Cir. Unit A May 1981), and their adjuncts, see Ellis, 981 F.2d at 1192. Hence, our consideration of Stogner’s legislative immunity claim begins with a distillation of principles extracted from federal constitutional jurisprudence.

The Speech or Debate Clause finds its origin in a similar provision of the English Bill of Rights of 1689.30 See Tenney, 341 U.S. at 372, 71 S. Ct. at 786; United States v. Johnson, 383 U.S. 169, 177-78, 86 S. Ct. 749, 753-54, 15 L. Ed. 2d 681 (1966). The Clause is designed to reinforce the independence of the legislative branch and ensure that it will be able to perform the whole of the legislative function ceded to it by the Constitution free of undue interference. See Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 502, 95 S. Ct. 1813, 1820, 44 L. Ed. 2d 324 (1975). To that end, the Clause protects officials “from inquiry into legislative acts or the motivation for actual performance of legislative acts,” United States v. Brewster, 408 U.S. 501, 509, 92 S. Ct. 2531, 2536, 33 L. Ed. 2d 507 (1972), “from the burden of defending” certain suits, Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S. Ct. 1425, 1427, 18 L. Ed. 2d 577 (1967) (per curiam), and “from the consequences of litigation’s results,” id.; see generally Consumers Union, 446 U.S. at 731-32,100 S. Ct. at 1974, Eastland, 421 U.S. at 502-03, 95 S. Ct. at 1820-21; Johnson, 383 U.S. at 179, 86 S. Ct. at 755.

While the Court has given the Clause broad application, its protections are carefully tailored to its purposes. See Eastland, 421 U.S. at 501-02, 95 S. Ct. at 1820-21. Officials claiming protection “must show that such immunity is justified for the governmental function at issue.” Hafer v. Melo, 502 U.S. 21, 28-29, 112 S. Ct. 358, 363, 116 L. Ed. 2d 301 (1991). Accordingly, the privilege enures only to legislators engaging in actions considered “an integral part of the deliberative and communicative processes by which [legislators] participate in . . . proceedings with respect to the consideration and passage or rejection of proposed legislation.” Smith v. Lomax, 45 F.3d 402, 405 (11th Cir. 1995) (quoting Gravel, 408 U.S. at 625, 92 S. Ct. at 2627) (alteration in original). The Clause does not confer absolute immunity “simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators.” Brewster, 408 U.S. at 507, 92 S. Ct. at 2535.

2.
Turning to the matter here, Stogner initially asserts that the district court’s analysis is flawed because it improperly focused on his position as Executive Assistant to the Chief Executive Officer (Jones).31 We agree. In basing its denial of legislative immunity to Stogner on the fact that he “is not an officer or employee of a legislative body” but, rather, “an executive assistant of someone who is serving in an executive position,” the district court erred by grounding its decision on Stogner’s title rather than upon the function in which he was engaged that gave rise to Lowe’s claim. Because the applicability of legislative immunity necessarily focuses on particular acts or functions, not on particular actors or functionaries, immunity also extends to legislative acts performed by executive officials and other non-legislators. See Eastland, 421 U.S. at 507, 95 S. Ct. at 1823 (declining to draw a distinction between the members of a congressional subcommittee and the subcommittee’s counsel when the latter’s actions were within the sphere of legitimate legislative activity); Gravel, 408 U.S. at 618, 92 S. Ct. at 2623 (holding that “the Speech or Debate Clause applies not only to a Member but also to his aides insofar as the conduct of the latter would be a protected legislative act if performed by the Member himself.”). To be sure, when determining entitlement to the immunity, the position held by the official seeking immunity is not dispositive, as the “immunity is justified and defined by the functions it protects and serves, not by the person to whom it attaches.” Forrester v. White, 484 U.S. 219, 227, 108 S. Ct. 538, 544, 98 L. Ed. 2d 555 (1988) (emphasis in original); see Yeldell, 956 F.2d at 1062 (“It is the nature of the act which determines whether legislative immunity shields the individual from suit.”).

By preparing the 2004 budget proposal, which Jones approved and submitted to the Board of Commissioners, Stogner argues that he necessarily acted in a legislative capacity and is deserving of absolute immunity. As part of his argument, Stogner seeks to have us adopt a per se rule that would provide an executive official immunity any time he drafts a proposal that is later submitted to a legislative body. We decline to adopt such a rule as it cuts too broadly and is inapposite to the principle that our inquiry is not bound by officials’ titles and the characterizations officials place on their own activities. Instead, we examine the facts of each case to determine “whether the [official] in the instant case [was] engaging in legislative activity.” Espanola Way Corp. v. Meyerson, 690 F.2d 827, 829 (11th Cir. 1982), cert. denied, 460 U.S. 1039, 103 S. Ct. 1431, 75 L. Ed. 2d 791 (1983).

We now evaluate whether Stogner was engaging in legitimate legislative activity when he developed and drafted the 2004 budget, which eliminated Lowe’s position. In doing so, we are careful to limit our decision to this narrow issue and decide “only what is necessary to the disposition of the immediate case.” Whitehouse v. Ill. Cent. R.R. Co., 349 U.S. 366, 373, 75 S. Ct. 845, 850, 99 L. Ed. 1155 (1955). Generally, absolute immunity applies to “prospective, legislative-type rules” that have general application. See Alexander v. Holden, 66 F.3d 62, 67 (4th Cir. 1995). “Employment decisions generally are administrative except when they are accomplished through traditional legislative functions such as policymaking and budgetary restructuring that strike at the heart of the legislative process.” Acevedo-Garcia v. Vera-Monroig, 204 F.3d 1, 8 (1st Cir. 2000) (internal quotations omitted).

Relying on Bogan v. Scott-Harris, 523 U.S. 44, 118 S. Ct. 966, 140 L. Ed. 2d 79 (1998), Stogner characterizes his behavior as a legitimate legislative act by virtue of his developing and drafting the budget proposal that was later adopted by the Board of Commissioners. Implicit within this characterization is the assertion that the elimination of Lowe’s position (Deputy Director of Strategic Management and Development Parks and Recreation Department) arose out of broad policy and budget considerations and did not stem from specific facts as they related to Lowe. We agree.

In Bogan, the plaintiff alleged that her discharge, which was accomplished through an ordinance eliminating a city department (of which she was the sole employee), was motivated by racial animus and was in retaliation for filing a complaint against another employee who had used racial and ethnic slurs. 523 U.S. at 46-47, 118 S. Ct. at 969. The Supreme Court found that absolute immunity should apply because the ordinance “bore all the hallmarks of traditional legislation.” Id. at 55, 118 S. Ct. at 973. According to the Court, the ordinance “reflected a discretionary, policymaking decision implicating the budgetary priorities of the city,” and it had prospective impact because it eliminated a department rather than a single employee. Id. at 55-56, 118 S. Ct. at 973. Put differently, the alleged retaliation had a substantial nexus to the legislative process.

Lowe, however, attempts to cast this case as merely an employment action masked by the legislative process. He argues that legislative immunity is unavailable where, as here, the legislation adversely impacted a single individual. The argument is unavailing. Ordinarily, the decision to terminate an individual’s employment is characterized as an administrative action, see In re Montgomery County, 215 F.3d 367, 376 (3d Cir. 2000) (finding the decision to eliminate a particular employee rather than employee’s position constitutes an administrative, rather than legislative act); Acevedo-Garcia, 204 F.3d at 8 (holding that selective layoffs of particular employees do not constitute legislative acts); Canary v. Osborn, 211 F.3d 324, 330-31 (6th Cir. 2000) (same), but Lowe’s employment was not terminated in this case. The Board of Commissioners chose to adopt the 2004 budget, which abolished the position of Deputy Director of Strategic Management and Development, Parks and Recreation Department. This distinction proves dispositive.

Unlike employee personnel decisions, the elimination of a public employment position does constitute a legislative act. In Bogan, the Supreme Court noted that the elimination of a public employment position — as compared to the firing of a single individual — is a quintessential legislative act. See Bogan, 523 U.S. at 55-56, 118 S. Ct. at 973. Unlike the termination of an individual employee, the elimination of a public employment position “may have prospective implications that reach well beyond the particular occupant of the office.” Id. at 56, 118 S. Ct. at 973. Here, the decision to abolish the position — and Stogner’s involvement in preparing the budget proposal — is properly construed as embodying a policy decision with prospective implications.

Lowe further argues that legislative immunity does not attach to Stogner because Stogner developed the 2004 budget as a continuation of Jones’s racially discriminatory policy to eliminate managers through reorganizations rather than firings. Lowe notes that prior to his developing and drafting the 2004 budget proposal, Drew had hired Billups into the exact position Lowe held. And for approximately five months, Billups performed the same job functions. Then, by sleight of hand, Billups was given another job title while still performing the same functions as Lowe, thereby rendering Lowe’s position and title unnecessary. Lowe also points out that, of 600 positions in the Parks Department, his position was the only one eliminated. This, according to Lowe, demonstrated that Stogner’s actions were not directed at legitimate legislative goals but, rather, were aimed at punishing him for refusing to participate in Jones’s scheme to eliminate white managers.

While these facts obviously suggest an improper motive, “[t]he claim of an unworthy purpose does not destroy the privilege.” Tenney, 341 U.S. at 377, 71 S. Ct. at 788. Surely, the privilege “would be of little value if [legislators] could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury’s speculation as to motives.” Id. Moreover, it simply is “not consonant with our scheme of government for a court to inquire into the motives of legislators.” Id. Therefore, we need not examine Stogner’s motives in drafting the 2004 budget, as the inquiry is simply “whether, stripped of all considerations of intent and motive, [Stogner's] actions were legislative.” Bogan, 523 U.S. at 55, 118 S. Ct. at 973.

In fine, we find that Stogner is entitled to absolute legislative immunity against any claims, including Lowe’s retaliation claim, arising from actions directly related to his preparing and drafting the 2004 budget proposal.

C.
Having found that Stogner possesses legislative immunity with respect to Lowe’s retaliation claim, we next consider whether Drew is entitled to qualified immunity regarding that claim. We begin by noting that, since Lowe failed to raise in the district court the issue of whether Drew was performing a discretionary function when committing the discriminatory acts, the issue is not before us. See Johnson, 340 F.3d at 1228 n.8. Turning to the qualified immunity question, we first look to whether Lowe has established a violation of his statutory or constitutional rights. Absent direct evidence of discrimination, when analyzing claims for race-based retaliation brought under § 1981, we employ the tripartite analytical framework developed by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and subsequently modified in Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). See Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S. Ct. 2363, 2377-78, 105 L. Ed. 2d 132 (1989) superceded in part by Civil Rights Act of 1991, Pub. L. No. 102-166, § 101, 105 Stat. 1071, 1071-72 (codified at 42 U.S.C. § 1981); Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) (stating that Title VII and § 1981 “have the same requirements of proof and use the same [McDonnell Douglas/Burdine]analytical framework”). Under this framework, a plaintiff alleging retaliation must first establish a prima facie case by showing that: (1) he engaged in a statutorily protected activity; (2) he suffered an adverse employment action; and (3) he established a causal link between the protected activity and the adverse action. Raney v. Vinson Guard Serv. Inc., 120 F.3d 1192, 1196 (11th Cir. 1997); Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993). These three elements create a presumption that the adverse action was the product of an intent to retaliate. Once a plaintiff establishes a prima facie case of retaliation, the burden of production shifts to the defendant to rebut the presumption by articulating a legitimate, non-discriminatory reason for the adverse employment action. See Goldsmith, 996 F.2d at 1163. “If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted,” Burdine, 450 U.S. at 255, 101 S. Ct. at 1094-95, and “drops from the case,” id. at 255 n.10, 101 S. Ct. at 1095 n.10. After the defendant makes this showing, the plaintiff has a full and fair opportunity to demonstrate that the defendant’s proffered reason was merely a pretext to mask discriminatory actions. See Raney, 120 F.3d at 1196.

Initially, Drew argues that the district court erred by finding she waived any argument on summary judgment that Lowe failed to establish a prima facie case of retaliation because she failed to develop the argument in her motion for summary judgment until filing her reply brief. Drew asserts that, by stating the elements of the required prima facie showing in her initial summary judgment pleading, she preserved the argument. We disagree. It is well established in this circuit that, absent extraordinary circumstances, legal theories and arguments not raised squarely before the district court cannot be broached for the first time on appeal. See, e.g., Millennium Partners, L.P. v. Colmer Storage, LLC, 494 F.3d 1293, 1304 (11th Cir. 2007); Solantic, LLC v. City of Neptune Beach, 410 F.3d 1250, 1256 n.6 (11th Cir. 2005). An insignificant recitation of black letter law is not tantamount to raising an issue for adjudication. Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (finding that a party waives an issue by failing to make any substantive arguments with respect to that issue). Thus, Drew is procedurally barred from raising the issue on appeal and has conceded any argument that Lowe failed to establish a prima facie case of retaliation.

Drew also argues that Lowe failed to present evidence capable of establishing that her non-discriminatory explanation for recommending the abolishment of Lowe’s position was pretextual. Before the district court, Drew explained that she recommended that Lowe’s position be eliminated because it was no longer needed and other employees were performing duties originally assigned to it. To establish that Drew’s explanation was merely a pretext for discrimination, Lowe had to “present concrete evidence in the form of specific facts which show[ed] that the defendant’s proffered reason [was] mere pretext. Mere conclusory allegations and assertions w[ould] not suffice.” Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990).

As the district court noted, the “complicated assignment process” suggested that Drew’s explanation was pretextual. After Lowe refused to be a “team player,” Drew moved his office to the same floor as Jones’s office, presumably so that Jones could monitor Lowe’s activities. Jones again told Lowe that if he wanted to work for DeKalb County, he would have to become a “team player.” Because Lowe continued to refuse to participate in Jones’s plan, Drew hired Billups into the same position as Lowe’s and gave him duties once assigned to Lowe. Although Lowe and Billups continued to perform the same duties, Drew changed Billups’s job title to Deputy Director of Recreation Services. Drew then recommended to Stogner that Lowe’s position be abolished, and the 2004 budget provided for its abolition. These facts suggest that Drew participated in a scheme to make Lowe’s position redundant and effectively terminate him because he refused to participate in Jones’s plan to eliminate white managers.

Drew next argues that her alleged acts of retaliation did not violate clearly established law because the availability of a claim for retaliation brought under 42 U.S.C. § 1981 was not well-established. Drew contends that the district court’s error lies in its finding that the right to be free from discriminatory retaliation was clearly established under Title VII and that its failing to consider whether the right also was clearly established under § 1981. Therefore, according to Drew, because Lowe’s claim is grounded in § 1981, any reliance the district court placed on Title VII cases for the proposition that a discriminatory retaliation cause of action was clearly established under § 1981 was error. This argument strains credulity.

The Supreme Court has explained that a constitutional right is “clearly established” when the “contours of the right [are] sufficiently clear [such] that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 3039, 97 L. Ed. 2d 523 (1987). Under this standard, a plaintiff need not show that the government official’s conduct specifically has been held unlawful, but rather that “in the light of pre-existing law the unlawfulness [was] apparent.” Id. Amplifying this principle, the Court noted that “ ‘general statements of the law are not inherently incapable of giving fair and clear warning, and in other instances a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has [not] previously been held unlawful.’ ” Hope v. Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 2516, 153 L. Ed. 2d 666 (2002) (quoting United States v. Lanier, 520 U.S. 259, 271, 117 S. Ct. 1219, 1227, 137 L. Ed. 2d 432 (1997)) (internal citation omitted; alteration in original). This precedent makes clear that a right may be clearly established irrespective of whether courts have specifically deemed the cause of action as being available under a particular legal theory. Accordingly, the question is not whether a reasonable officer would know that a discriminatory retaliation claim was available under Title VII or § 1981; rather, the salient question is whether the state of the law at the time provided officials fair warning that their discriminatory retaliatory conduct was unlawful. See Hope, 536 U.S. at 741, 122 S. Ct. at 2516.

Furthermore, even if Drew’s misguided interpretation of the “clearly established” prong of the qualified immunity test was correct, it is well-established in this circuit that claims for retaliation are cognizable pursuant to § 1981. See Butler v. Ala. Dep’t of Transp., 536 F.3d 1209, 1212-13 (11th Cir. 2008) [21 Fla. L. Weekly Fed. C962a]; Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008) [21 Fla. L. Weekly Fed. C316a]; Jackson v. Ala. State Tenure Comm’n, 405 F.3d 1276, 1279 (11th Cir. 2005) [18 Fla. L. Weekly Fed. C425a]; Andrews v. Lakeshore Rehab. Hosp., 140 F.3d 1405, 1411-13 (11th Cir. 1998); Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1007 (11th Cir. 1997).32 Consequently, Drew may not find shelter under the doctrine of qualified immunity.33

IV.
For the reasons stated above, the judgment of the district court is REVERSED, to the extent it denied Stogner legislative immunity. The judgment of the district court is AFFIRMED in all other respects. The case is REMANDED for further proceedings not inconsistent with this opinion.

SO ORDERED.

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Appendix

DeKalb County Government Hierarchy

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1We have held that § 1981 does not provide an implicit cause of action against state actors; therefore, § 1983 constitutes the exclusive federal remedy for violation by state actors of the rights guaranteed under § 1981. See Butts v. County of Volusia, 222 F.3d 891, 894-95 (11th Cir. 2000).

2We have jurisdiction over this interlocutory appeal under 28 U.S.C. § 1291 and the collateral order doctrine. See Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-47, 69 S. Ct. 1221, 1225-26, 93 L. Ed. 1528 (1949) (holding that interlocutory review of non-final judgments is available where the order (1) conclusively determines the disputed question; (2) resolves an important issue completely separate from the merits of the action; and (3) is effectively unreviewable on appeal from a final judgment); Mitchell v. Forsyth, 472 U.S. 511, 528, 105 S. Ct. 2806, 2816, 86 L. Ed. 2d 411 (1985) (finding that district court’s order denying a defendant’s motion for summary judgment based on qualified immunity is an immediately appealable order).

3The facts provided here largely track those recited by the district court in its thoroughgoing opinion. See Bryant v. Jones, 464 F. Supp. 2d 1273 (N.D. Ga. 2006).

4In the appendix, we provide an organizational chart to assist in understanding the hierarchy of the DeKalb County government.

5Under DeKalb County’s Organizational Act, the CEO is vested with exclusive authority to supervise and direct the administration of the county government, including the power to set hiring policy and abolish any department, agency, or office. See http://www.co.dekalb.ga.us/boc/pdf/ORGANIZATIONALACT.pdf (last visited June 25, 2009).

6As an example of the general racial hostility aimed at Kelley specifically, and whites in general, in the DeKalb County government, a County Commissioner revealed to a colleague that he “was not going to work with that little white woman [Kelley].”

7The DeKalb County Greenspace Program is part of a statewide initiative to retain parks, natural preserves, and recreational centers for the purpose of curbing the deleterious effects of urban sprawl in and around the Atlanta region. See https://dklbweb.dekalbga.org/

Greenspace/greenspace.asp (last visited June 12, 2009).

8It is unclear from the record whether Kelley continued to report to Williams or another Assistant County Administrator.

9Kelley objected to being moved into the new office space and was not moved.

10Kelley stated that she found the transfer “personally and professionally humiliating” and considered it a demotion. She asserted that she was “taken from a position of great stature and prominence and placed into a highly subordinate role where [she] moved from personally managing a $10 to $20 million [sic.] bond budget to having no financial oversight, from [having responsibility over 600 positions] to having quasi oversight over three people.”

11Jones had previously stated that Bryant was a “white bastard who’s nothing more than a racist and need[s] to go.”

12Before this lawsuit was brought, Bryant filed a hostile work environment complaint against Drew with the DeKalb County Human Resources Department. Bryant thereafter sent several e-mails to the County EEO Manager, Curtis LeBlanc, inquiring about the status of his complaint, but LeBlanc never responded. LeBlanc interviewed all the witnesses listed in the complaint, except Lowe, who refused to testify, apparently out of fear of retribution from the defendants. Nine months after Bryant filed the complaint, LeBlanc submitted his findings to Stone, Director of Human Resources. The report indicated some problems with respect to Drew and Bryant’s relationship, but it did not conclude that the problems were racially based. Both Joe Stone and Stogner reviewed the report and concluded that no discrimination occurred. The Human Resources Department failed to contact Bryant to inform him of its decision.

13Marvin Billups, a black male, was hired as Deputy Director of Recreation Services in October 2003. However, Bryant continues to perform the tasks included within the Deputy Director of Recreation Services job description that Drew assigned him.

14In fact, Jones prevented Drake from competing for the position of Director of the Parks Department. Jones accomplished this by designating the position as an intra-departmental promotion, meaning that only Parks Department employees could apply. And, because February 25, 2002 to March 8, 2002 was the designated application period, Jones made Drake’s transfer effective March 16, 2002; as such, Drake, as an employee of the Purchasing and Contracting Department, could not apply for the position until eight days after the application period had ended.

15Stogner admitted that he did not carefully review Drew’s qualifications. He did not call any of her references, and he could not recall whether he so much as looked over her résumé.

16Statistically, Jones’s plan seemed to be succeeding. When Jones became CEO in January 2001, there were 98 managerial employees at the county pay grade 33, which were positions over which the CEO had sole hiring authority. At that time, of those 98 managers, 61 were Caucasian and 33 were African American. Four years later, in August 2005, there were 122 managers at pay grade 33. Of those 122 managers, 58 were Caucasian and 60 were African American. Thus, the number of African American county managers almost doubled from 2001 to 2005, while the total number of Caucasian managers decreased slightly during the same time period.

17The defendants were sued in both their official and individual capacities. This appeal is limited to the claims brought against them in their individual capacities. The complaint also named Stone as a defendant. He has been dismissed from the case; hence, in referring to the defendants, we omit his name.

18The November 10 order also disposed of other issues not relevant here.

19Plaintiffs argue that we lack jurisdiction to consider the present appeal because the defendants have failed to offer an appealable issue of law; instead, according to the plaintiffs, the defendants merely argue that the record provides insufficient evidence to support plaintiffs’ allegations. Plaintiffs’ argument is incorrect, as the defendants advance an appealable issue. The issue of whether a defendant is entitled to qualified immunity is purely a legal question; as such, an appellate court reviewing a defendant’s denial of qualified immunity considers the facts as presented by the plaintiff in the light most favorable to him, and juxtaposes that set of facts with relevant case law to determine whether those facts support a claim that defendant violated a right based on an earlier articulated ruling or clearly established legal principle, or a principle so closely analogous to an established legal concept that we can conclude that the emanating right was itself “clearly established.” See Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002) [15 Fla. L. Weekly Fed. S511a]; Koch v. Rugg, 221 F.3d 1283, 1296 n.28 (11th Cir. 2000) (“When we, like the district judge, view the facts for summary judgment purposes most favorably to the plaintiff, a pure issue of law is created.”) (citation and quotations omitted). While the Supreme Court in Johnson v. Jones, 515 U.S. 304, 115 S. Ct. 2151, 132 L. Ed. 2d 238 (1995), held that appellate courts do not possess jurisdiction over every interlocutory appeal based on a denial of qualified immunity, it narrowly defined the proscribed class of cases as those where a defendant merely contests the merits of the plaintiff’s underlying action. Id. at 308, 115 S. Ct. at 2154. In other words, we do not have jurisdiction to entertain such appeals when the defendant’s argument is merely, “I didn’t do it.” We are not here presented with such a case.

20We pause to note that discrimination claims, including hostile work environment claims, brought under the Equal Protection Clause, 42 U.S.C. § 1981, or Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, are subject to the same standards of proof and employ the same analytical framework. Tademy v. Union Pacific Corp., 520 F.3d 1149, 1170 (10th Cir. 2008) (citations omitted) (“The elements of a hostile work environment claim under § 1981 are the same as those under Title VII.”); Cross v. Alabama, 49 F.3d 1490, 1507-08 (11th Cir. 1995) (noting, in the context of evaluating the merits of an equal protection claim, that “[w]hen section 1983 is used as a parallel remedy for [a] violation of . . . Title VII . . ., the elements of the two causes of action are the same.”).

21The district court granted Drew’s motion for summary judgment with respect to Kelley’s constructive discharge claim on grounds that there was an insufficient causal nexus between Drew’s actions and Kelley’s constructive discharge. See Bryant, 464 F. Supp. 2d at 1309.

22In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court adopted as binding precedent the decisions of the former Fifth Circuit handed down prior to October 1, 1981.

23Lowe also brought his retaliation claim against Jones, but the district court dismissed the claim as to Jones on legislative immunity grounds.

24Moreover, and as the Court observed in CBOCS West, Inc. v. Humphries, several courts of appeals, including this court in Andrews v. Lakeshore Rehabilitation Hosp., 140 F.3d 1405, 1411-13 (11th Cir. 1998), had reached the same conclusion — that § 1981 encompasses claims of retaliation. Humphries, ___ U.S. at ___, 128 S. Ct. at 1957.

2528 U.S.C. § 1292(b) provides:

When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.

26Under Personnel Code of DeKalb County § 20-195, a hearing officer’s authority is limited to deciding “whether the dismissal was in fact due to lack of work, lack of funds, lack of appropriation of funds, abolishment of the position or for other material changes in the duties of the position or the organization of the department.”

27Denials of legislative immunity are subject to de novo review. Yeldell v. Cooper Green Hosp., Inc., 956 F.2d 1056, 1060 (11th Cir. 1992).

28We possess jurisdiction to review the district court’s rejection of Stogner’s claim of legislative immunity under the “collateral order” doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949). Nixon v. Fitzgerald, 457 U.S. 731, 102 S. Ct. 2690, 73 L. Ed. 2d 349 (1982) (authorizing immediate appellate review of a denial of legislative immunity); see supra note 2; see also Harris v. Deveaux, 780 F.2d 911, 913 (11th Cir. 1986) (“Absolute immunity is meant to protect not only from liability, but from going to trial at all.”).

29We have recognized that “efficient operation of contemporary government necessitates adjuncts performing responsibilities traditionally executed by the legislators.” Ellis v. Coffee County Bd. of Registrars, 981 F.2d 1185, 1194 (11th Cir. 1993); see also Gravel, 408 U.S. at 616-17, 92 S. Ct. at 2623 (“[I]t is literally impossible, in view of the complexities of the modern legislative process, with . . . matters of legislative concern constantly proliferating, for Members of Congress to perform their legislative tasks without the help of aides and assistants; that the day-to-day work of such aides is so critical to the Members’ performance that they must be treated as the latter’s alter egos . . . .”).

30The English version provides: “That the Freedom of Speech, and Debates or Proceedings in Parliament, ought not to be impeached or questioned in any Court or Place out of Parliament.” 1 Wm. & Mary, Sess. 2, ch. II (1689) (quoted in Tenney, 341 U.S. at 373, 71 S. Ct. at 786). For thorough expositions on the historical antecedents of the Clause, see Justice Frankfurter’s majority opinion in Tenney, 341 U.S. at 372-75, 71 S. Ct. at 786-87, and Justice Harlan’s opinion for the Court in Johnson, 383 U.S. at 177-83, 86 S. Ct. at 753-57.

31The district court found that Jones was entitled to legislative immunity because he introduced the 2004 budget proposal to the Board of Commissioners.

32We further reject Drew’s contention that, since the Supreme Court had not addressed the issue before the alleged discrimination occurred, we cannot find that the right had been clearly established at that time. We have said that, in the absence of Supreme Court authority, we may look to the decisions of this court when deciding whether the contours of a right have been clearly established. Marsh v. Butler County, Ala., 268 F.3d 1014, 1032 n.10 (11th Cir. 2001) (en banc) (finding that, when courts in this Circuit must look to case law in order to discern whether a right has been clearly established, we look to decisions of the U.S. Supreme Court, the Court of Appeals for the Eleventh Circuit, and the highest court of the pertinent state). As the cases in the text reveal, the right to be free from racially motivated retaliation under § 1981 had been clearly established in this circuit when Lowe’s discriminatory retaliation claim arose.

33Drew also argues that she cannot be held individually liable because she did not make the ultimate decision to eliminate Lowe’s position. This argument misses the point. Lowe is not bringing a Title VII claim for discriminatory discharge in which he is attempting to impute Drew’s racial animus to her employer, DeKalb County, see Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1331-32 (11th Cir. 1999) (per curiam); rather, he is bringing a § 1981 claim for retaliation, arguing that Drew actively participated in a scheme to retaliate against him due to his refusal to be a “team player” and assist in discriminating against white managers.

* * *

PROUDFOOT CONSULTING COMPANY, a Delaware corporation, Plaintiff-Appellee, v. DERRICK GORDON, Defendant-Appellant. 11th Circuit. Case No. 08-14075. July 30, 2009. Appeal from the U.S. District Court for the Southern District of Florida (No. 06-80959-CV-LRJ).

(Before BARKETT and FAY, Circuit Judges, and TRAGER,* District Judge.)

(TRAGER, District Judge.) This case arises out of an employment agreement (“Agreement”) between appellant Derrick Gordon (“Gordon” or “appellant”) and appellee Proudfoot Consulting Company (“Proudfoot” or “Proudfoot North America” or “appellee”) that contains a number of restrictive covenants. The Agreement prevents Gordon, for six months after his employment with Proudfoot ends, from working for a direct competitor or client of Proudfoot, contacting Proudfoot’s clients and soliciting Proudfoot’s employees. The Agreement also bars Gordon from using or disclosing Proudfoot’s confidential information and from retaining Proudfoot materials after his employment ends. After Gordon left Proudfoot in June 2006 to work for the Highland Group (“Highland”), a direct competitor, Proudfoot brought suit to enforce the restrictive covenants.

Following a bench trial, the district court held that all of those restrictions (“Restrictive Covenants”) were enforceable under Florida law. Based on Gordon’s breaches of the Restrictive Covenants, the district court concluded that Proudfoot was entitled to a statutory presumption of irreparable harm. Because Gordon failed to rebut that presumption, the district court entered an injunction against Gordon, preventing him, for six months, from working for Highland and from soliciting Proudfoot’s clients and employees. Since the district court’s decision was handed down over a year-and-a-half after Gordon began working at Highland, in order to grant this injunctive relief, the district court had to rely on a tolling provision in the Agreement, which provides that the six-month restrictive period is to be tolled during any period where Gordon is in breach of the non-compete and non-solicitation covenants. The district court found that Gordon’s continuous work for Highland, which breached the Agreement’s bar against employment with a direct competitor, justified tolling the six-month restrictive period. In addition to granting injunctive relief, the district court also awarded Proudfoot attorney’s fees and $1,659,000 in damages stemming from a project performed by Highland for Bombardier, a Proudfoot client that Gordon both worked on and helped solicit for Highland.

On appeal, Gordon seeks to reverse the damages award. In addition, although Gordon has not appealed the attorney’s fees award, he challenges the validity of the injunction, which has expired, in the hope of revisiting the attorney’s fees award before the district court if the injunction is invalidated. For the reasons explained below, we conclude that the injunction was not improper. However, we reverse the damages award. Proudfoot failed to establish that Gordon’s solicitation of Bombardier for Highland resulted in Proudfoot’s loss of the project that was the basis of the damages award.

I. BACKGROUND

(1)
Proudfoot North America is a management consulting firm that provides consulting services to improve clients’ work processes by eliminating redundancies, streamlining processes and implementing systems of management. Proudfoot North America, which is headquartered in West Palm Beach, Florida and has offices in Atlanta and New York, operates and markets its services in the United States and Canada and has clients located in both countries. Management Consulting Group (“Proudfoot Global”), a publicly-traded company based in the United Kingdom, is the parent company of a number of Proudfoot affiliates across the globe, including an affiliate in Europe (“Proudfoot Europe”) as well as Proudfoot North America.

Gordon worked at Proudfoot North America from March 1999 through May 2006. From March 1999 though October 2001, Gordon was a Senior Process Consultant. Process Consultants, who are supervised by a Project Manager, work directly with a client’s first- and second-level supervisors. From October 2001 through January 2005, Gordon was a Project Manager. As a Project Manager, Gordon had overall responsibility for a specific client project and supervised five to ten Process Consultants. Project Managers are responsible for achieving results for a client, obtaining repeat business from a client and convincing a client to provide referrals and to serve as a reference.

From January 2005 through May 2006, Gordon worked as a Project Director. As a Project Director, he supervised two to four Project Managers at a time and was responsible for multiple client projects. A Project Director is responsible for managing client relationships and is the most senior Proudfoot employee who interacts with individual clients on an ongoing basis. Project Directors report to the Vice President of Business Delivery.

On April 18, 2006, Gordon was offered a position by Highland, an operational management consulting firm that competes directly with Proudfoot. After Gordon tendered his resignation from Proudfoot on May 1, 2006, Proudfoot CEO Luiz Carvalho (“Carvalho”) met with Gordon. At this meeting, Gordon lied to Carvalho about the offer that he had received, stating that the offer was from a private equity firm and never mentioning Highland. After Carvalho offered Gordon the position of Vice President of Business Delivery for Proudfoot Europe, Gordon accepted that position and withdrew his resignation. Vice President of Business Delivery is a critical position that has ultimate responsibility for all aspects of delivering services to clients and for defining strategy for each client account. While in this position, Gordon’s office was located in London.

On June 12, 2006, Gordon again notified Proudfoot that he was resigning. This time he did not withdraw his resignation, which was voluntary and became effective on June 23, 2006. Gordon never informed Proudfoot that he was leaving to work for Highland.

During his tenure at Proudfoot North America, Gordon worked on many client projects in the United States and on a client project in Mexico. The district court found that Gordon traveled to a Proudfoot client project in Canada.1 The district court also found that during Gordon’s tenure at Proudfoot North America, his “territory” included the United States and Canada.2

At Proudfoot, Gordon had access to, and received, information in various forms about specific Proudfoot clients and projects, as well as about Proudfoot’s operations generally. Gordon received hard copies of a number of Proudfoot materials, including training manuals and videos from the numerous training sessions he attended, a list of Proudfoot Europe’s employees, business cards of Proudfoot clients for whom he had worked, and a Proudfoot employee newsletter. Gordon retained these materials after leaving Proudfoot, but insisted that he did so unintentionally.

While at Proudfoot, Gordon also had access to information beyond the specific hard-copy materials that he retained. He had access to information about Proudfoot’s clients, including pricing information.3 Moreover, during his tenure as Vice President of Business Delivery for Proudfoot Europe, Gordon conducted high-level reviews of the company’s client projects in Europe and received information about those projects. In addition, Gordon also had access to information about Proudfoot’s operations. At trial, he admitted, generally, that he had “access to confidential information about Proudfoot’s business.” Moreover, the district court concluded that Gordon was exposed to Proudfoot’s “methodology for [providing] operational management consulting services” as well as to Proudfoot’s “products and offerings and tools.”

In addition, during his tenure at Proudfoot, Gordon accessed and downloaded information from the Knowledge Management database, a project database that contains information about all of Proudfoot’s client projects, from around the world, dating back to the 1980s and other information about Proudfoot’s business operations. Tools, studies, questionnaires and diagnostics from past projects are included in the Knowledge Management database so that Proudfoot employees can use that information “for other clients in similar situations anywhere around the world.”

On June 26, 2006, Gordon started working at Highland. Highland, whose headquarters are located in the United States, does business and maintains offices in North America and Europe. At Highland, Gordon served as a Project Manager responsible for day-to-day delivery and execution of client projects and the direct supervision of process consultants. Gordon was promoted to Director of Operations in June 2007.

At Highland, Gordon worked on projects for different clients; one of those clients was Bombardier, who was also a client of Proudfoot Europe. In September 2006, Highland assigned Gordon to a project for Bombardier called “Bombardier Interiors.” In February 2007, eight months after leaving Proudfoot, Gordon helped solicit a different Bombardier project for Highland called “Bombardier Logistics.” Gordon was the Project Manager for that project until his promotion in June 2007.4 In addition to his specific client assignments, in the fall of 2006, Gordon was given the responsibility of training other Highland employees and coordinating the development of written training materials. Gordon performed this function for approximately “eight weeks.” Also, around the time of trial, Gordon was put in charge of developing a new model for reviewing the operations phase of Highland’s client projects.

(2)
The Agreement Gordon signed with Proudfoot contains four Restrictive Covenants. Three of the Restrictive Covenants are found in a “Noncompetition and Nonsolicitation” clause, which restricts Gordon from engaging in certain activities for six months after his employment with Proudfoot ends (“six-month restrictive period”). First, the non-compete provision prevents Gordon from “[s]erv[ing] as an employee . . . or consultant for . . . any business which is a Direct Competitor” (“competitor non-compete covenant” or “competitor non-compete clause”). “Direct Competitor” is defined as “any person or entity engaged in the business of providing professional services to advise clients as to the design and installation of systems and processes to improve the productivity and efficiency of their business operations.” Second, the non-compete provision also prevents Gordon from “[s]erv[ing] as an employee . . . or consultant for . . . any business which is . . . a Client” (“client non-compete covenant” or “client non-compete clause”). “Client” is defined as “a person or organization, which at any time within the three years preceding the date of termination of Employee’s employment has received a proposal or bid from [Proudfoot], or has received any services from [Proudfoot]. . . .” Third, under a non-solicitation provision, Gordon is prohibited from “contact[ing] any client of [Proudfoot]” or soliciting any Proudfoot employees (“non-solicitation covenant” or “non-solicitation clause”). The Agreement also provides that the six-month restrictive period “shall be tolled during any period in which Employee is in violation of this Noncompetition and Nonsolicitation provision.”

In addition, fourth, the Agreement also includes a clause concerning confidential information (“confidential information clause”) that is distinct from the Noncompetition and Nonsolicitation clause. The confidential information clause defines what constitutes confidential information5 and requires Gordon to return all Proudfoot documents and materials to the company upon the termination of his employment. Unlike the six-month time limit of the other three covenants described above, this clause prevents Gordon from disclosing or using this information “at all times after the termination of [his] employment.”

II. PROCEDURAL HISTORY
On August 23, 2006, Proudfoot filed suit against Gordon in Florida Circuit Court seeking injunctive relief and alleging breach of contract. Gordon, a citizen of Georgia, removed the case to the United States District Court for the Southern District of Florida on the basis of diversity jurisdiction. Pursuant to the consent of the parties, the case was tried in January 2008 before Magistrate Judge Linnea R. Johnson (“district court”). After a three-day bench trial, the parties submitted proposed findings of fact and conclusions of law (“Proposed Findings”). Proudfoot’s Proposed Findings offered three alternative damages proposals, which sought an award based on: (1) Highland’s profits for all projects that Gordon worked on; (2) Highland’s profits for the Bombardier project that Gordon helped solicit; or (3) the total compensation Gordon received while working at Highland.

On April 15, 2008, the district court adopted, with few modifications, Proudfoot’s Proposed Findings and Proudfoot’s second damages proposal. That same day, the district court entered a final judgment awarding Proudfoot $1,659,000 in damages and enjoining Gordon, for six months, from: (1) working in North America or Europe for Highland or any other direct competitor; (2) contacting any client of Proudfoot; and (3) soliciting any Proudfoot employees. Gordon was also enjoined from possessing, using or disclosing any confidential information of Proudfoot and was directed to return any such information in his possession to Proudfoot. The portion of the injunction preventing Gordon from using or disclosing Proudfoot’s confidential information did not include a time limitation. On appeal, Gordon challenges the district court’s grant of the injunction and the damages award.

After Gordon filed a notice of appeal, the district court entered a separate judgment against Gordon, awarding Proudfoot $335,050.55 in attorneys’ fees and costs under Fla. Stat. § 542.335(1)(k). No notice of appeal was filed from this award.

III. DISCUSSION
A. Standard Of Review

After a bench trial, we review the district court’s conclusions of law de novo and the district court’s factual findings for clear error. Renteria-Marin v. Ag-Mart Produce, Inc., 537 F.3d 1321, 1324 (11th Cir. 2008) [20 Fla. L. Weekly Fed. D875a]. “A factual finding is clearly erroneous ‘when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Morrissette-Brown v. Mobile Infirmary Med. Ctr., 506 F.3d 1317, 1319 (11th Cir. 2007) [21 Fla. L. Weekly Fed. C158b] (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 573, (1985)). “The clear error standard does not change when the district court adopts verbatim the findings of one of the parties, but the practice is strongly disapproved.” Lykes Bros., Inc. v. U.S. Army Corps of Eng’rs, 64 F.3d 630, 634 n.4 (11th Cir. 1995).

B. Enforceability And Breach Of The Restrictive Covenants

1. The Relevant Law — Fla. Stat. § 542.335

In 1996, Florida adopted Fla. Stat. § 542.335, which “contains a comprehensive framework for analyzing, evaluating and enforcing restrictive covenants contained in employment contracts.” Envtl. Servs., Inc. v. Carter, 9 So.3d 1258, 1262 (Fla. Dist. Ct. App. 2009). For a restrictive covenant to be valid, “[t]he person seeking enforcement of [the] restrictive covenant shall plead and prove the existence of one or more legitimate business interests justifying the restrictive covenant.” Fla. Stat. § 542.335(1)(b). Section (1)(b) of the statute enumerates a non-exhaustive list of “legitimate business interest[s].” Among these are: (1) “[v]aluable confidential business or professional information that otherwise does not qualify as trade secrets”; (2) “[s]ubstantial relationships with specific prospective or existing customers, patients, or clients”; and (3) “[e]xtraordinary or specialized training.”

In addition, to be enforceable, restrictive covenants must be reasonable with regard to time, area and line of business. Fla. Stat. § 542.335(1). Once an employer establishes a prima facie case that the contractually specified restraint is “reasonably necessary to protect the legitimate business interest[s] . . . justifying the restriction,” the burden of proof shifts to the employee to show that “the contractually specified restraint is overbroad, overlong, or otherwise not reasonably necessary to protect the established legitimate business interest[s].” Fla. Stat. § 542.335(1)(c). If the court finds that the “contractually specified restraint is overbroad, overlong, or otherwise not reasonably necessary to protect the legitimate business interest[s],” the court is required to “modify the restraint and grant only the relief reasonably necessary to protect such interest or interests.” Id.

“The violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant.” Fla. Stat. § 542.335(1)(j). This presumption, however, is rebuttable. JonJuan Salon, Inc. v. Acosta, 922 So. 2d 1081, 1084 (Fla. Dist. Ct. App. 2006) [31 Fla. L. Weekly D838a].

2. The District Court’s Decision

The district court found that Proudfoot established three legitimate business interests, a prerequisite under the statute for any form of relief. These interests are: (1) Gordon’s receipt of the information outlined earlier, which the district court found was valuable and confidential; (2) Proudfoot’s substantial relationships with specific prospective and existing customers; and (3) the extraordinary and specialized training provided to Gordon.

After finding that those interests justified the Restrictive Covenants, the district court had to determine whether the geographic scope of the competitor non-compete covenant was overbroad or otherwise not reasonably necessary to protect Proudfoot’s legitimate business interests.6 At the outset, the district court found that the Agreement provided “in plain fashion, that the covered area is North America and any other territory to which Gordon is assigned during his employment.” That finding was erroneous as the competitor non-compete clause in the Agreement contains no such explicit geographic limitation. However, Gordon concedes that because the competitor non-compete covenant did not include a geographic limitation, it was permissible for the district court to supply a reasonable geographic scope. Here, the district court found that, even if the Agreement were silent, North America and Europe would be a reasonable geographic area because Proudfoot conducts its operations in that territory and Gordon was assigned to that territory.

Once the district court determined that the Restrictive Covenants were enforceable and defined the geographic scope of the competitor non-compete clause, the district court concluded that Gordon breached all four Restrictive Covenants. The district court found that Gordon’s employment by Highland breached the competitor non-compete covenant. The district court also found that Gordon’s solicitation of Bombardier and his work on projects for Bombardier violated both the non-solicitation clause and the client non-compete covenant. Finally, the district court determined that Gordon’s retention of Proudfoot materials after his employment ended breached the confidential information clause, which required Gordon to return these materials to Proudfoot. Based on these breaches, the district court concluded that Proudfoot was entitled, under Fla. Stat. § 542.335(1)(j) to a presumption of irreparable injury, which the district court found Gordon failed to rebut.

The district court concluded that Gordon’s breach of the competitor non-compete covenant, based on his employment with Highland, tolled the six-month restrictive period from the time he began working for Highland in June 2006 through the date of the district court’s judgment. The district court used this violation to toll not only the six-month restrictive period for the competitor non-compete covenant, but also the six-month restrictive periods for the client non-compete covenant and the non-solicitation clause.7 This tolling allowed the district court both to grant the injunction and to award Proudfoot damages, which were based on Gordon’s work for, and solicitation of, Bombardier in February 2007 and occurred more than six months after Gordon left Proudfoot.

In attacking the injunction and damages award, Gordon argues that the competitor non-compete clause should not have been enforced because the training he received did not rise to the level of a legitimate business interest and because he did not intentionally retain any confidential Proudfoot materials. Gordon also contends that, even if the competitor non-compete covenant were enforceable, his work for Highland in Canada should not have been considered a violation of that covenant because Canada should not have been included in the geographic scope of that covenant. Finally, Gordon asserts that even if he breached the competitor non-compete clause, that breach should have been disregarded because it was not intentional.

Although we have doubts about some of the district court’s factual findings and legal conclusions, Gordon’s arguments ultimately do not persuade us that the district court erred in concluding that: (1) the confidential information which Gordon had was a legitimate business interest and justified the competitor non-compete covenant; (2) Gordon’s work for Highland in Canada breached that covenant; and (3) Gordon’s breach could be used to toll the six-month restrictive period even if that breach was not intentional. Accordingly, the grant of injunctive relief was not improper.8

3. Enforceability Of The Competitor Non-Compete Covenant

The district court found that all three of Proudfoot’s legitimate business interests — confidential information, training and client relationships — justified the competitor non-compete clause. Although Gordon argues that Proudfoot failed to establish a legitimate business interest in his training, it is unnecessary to address that challenge because Proudfoot was only required to establish one legitimate business interest to justify the non-compete covenant and we conclude that the district court did not err in finding this covenant was justified by, and reasonably necessary to protect, Proudfoot’s legitimate business interest in its confidential information.9

The district court found that, while at Proudfoot, Gordon received information about Proudfoot’s clients and business operations, including training materials, pricing information, information about Proudfoot’s methodology for providing operational management consulting services and information about Proudfoot’s products, offerings and tools. The district court concluded that this information constituted “valuable confidential business information” and that “the confidentiality of that . . . information is at risk so long as [Gordon] is employed by Proudfoot’s direct competitor.”10 Citing Autonation v. O’Brien, 347 F. Supp. 2d 1299 (S.D. Fla. 2004), the district court reasoned that “when an employee has access to confidential business information crucial to the success of an employer’s business, that employer has a strong interest in enforcing a covenant not to compete.”

Gordon does not dispute that he received valuable confidential information during his tenure at Proudfoot.11 His only argument related to Proudfoot’s confidential information is that he did not intentionally breach the confidentiality clauses’s restriction against the retention of Proudfoot materials because he unknowingly kept certain Proudfoot materials after leaving Proudfoot and never used or disclosed those materials while working at Highland.

Gordon mistakenly assumes that Proudfoot’s interest in its confidential information would only have justified the enforcement of the competitor non-compete covenant if Proudfoot could establish that he breached the confidential information clause by improperly retaining and using Proudfoot materials. Gordon, however, ignores the fact that the information that he received was clearly not limited to the physical materials he retained. Gordon admitted that he had access to confidential information about Proudfoot’s business, including pricing information. In addition, Gordon was exposed to Proudfoot’s methodology for providing operational management consulting services as well as to Proudfoot’s products, offerings and tools. Although the testimony on these points could have been more detailed, Gordon does not challenge the district court’s findings on these points and does not contest that he could use this information in his new position at Highland to compete unfairly against Proudfoot. Even if it is assumed that Gordon’s accidental retention of Proudfoot materials should not be considered a material breach of the confidential information clause, the district court’s conclusion that Gordon’s employment with Highland endangered the information that he received at Proudfoot (a conclusion that Gordon does not challenge) provides a basis to enforce the competitor non-compete covenant.12 Moreover, nothing raised by Gordon in his argument regarding the Proudfoot materials that he retained undermines that conclusion.13 As such, Gordon has failed to show that the district court clearly erred in finding that Proudfoot’s confidential information constituted a legitimate business interest that justified the competitor non-compete covenant.

4. Geographic Scope Of The Competitor Non-Compete Covenant

Gordon asserts that Canada should have been excluded from the geographic scope of the competitor non-compete covenant and that, if excluded, there would be no breach of the competitor non-compete covenant. In arguing for the exclusion of Canada, he points out that Proudfoot’s complaint limited the geographic scope of that covenant to the United States and urges that even apart from the complaint, including Canada was not reasonably necessary to protect Proudfoot’s business interests and, therefore, an exclusion covering Canada should not be enforceable.

Gordon claims that the inclusion of Canada is critical because he testified that, during the first six months of his tenure at Highland, he worked exclusively in Canada. If this conduct were not a breach of the competitor non-compete covenant, Gordon contends that the six-month restrictive period should not have been tolled. Because this tolling was necessary to both the grant of the injunction and the damages award, Gordon urges that both the injunction and the damages award were not valid.14

a. Geographic Scope Alleged In Proudfoot’s Complaint

Gordon argues that Proudfoot should be bound by the allegation in its Verified Complaint that the geographic scope of the competitor non-compete covenant is limited to the United States.15 When Gordon raised this issue at trial during an oral motion for judgment on partial findings, Proudfoot’s counsel responded that the pre-trial stipulation expanded the scope of the territory outlined in the complaint.16 After denying Gordon’s motion, the district court explicitly stated that the impact of the pre-trial stipulation on the complaint was still an open issue. However, in his Proposed Findings, Gordon never argued that the allegations in Proudfoot’s complaint conclusively determined that the competitor non-compete covenant’s geographic scope did not encompass Canada. Moreover, not only did the evidence at trial include admissions by Gordon that his territory included Canada and that he attended weekly meetings that discussed every project in North America, but Gordon has not even argued that the allegation in Proudfoot’s complaint prejudiced him either during discovery or at trial. The trial court was, therefore, fully justified in relying on the evidence offered rather than on what clearly appeared to be a mistake in Proudfoot’s pleadings.

b. Reasonableness Of The Geographic Scope Of The Competitor Non-Compete Covenant

“Whether a non-compete covenant is reasonable or overly broad is a question of fact for the trial court.” Whitby v. Infinity Radio Inc., 951 So. 2d 890, 897 (Fla. Dist. Ct. App. 2007) (holding that trial court erred in granting summary judgment without conducting an evidentiary hearing to hear and receive evidence regarding covenant’s reasonableness and scope and noting that trial court had previously assured employee that she would be allowed to present such evidence). As explained below, the district court did not clearly err in including Canada in the geographic scope of the competitor non-compete.

As an initial matter, we reject Gordon’s argument that Proudfoot failed to show that it competes in the Canadian market because no evidence was introduced identifying specific Proudfoot clients in Canada. Carvalho, Proudfoot’s CEO, testified that Proudfoot has clients “all over” the United States and Canada, and markets itself throughout both countries. Aside from the testimony of Carvalho, Gordon admitted that he: (1) visited one Proudfoot client project in Canada; “covered a territory that included the United States, Canada and Mexico”; and attended weekly meetings that discussed Proudfoot’s projects in “North America.” Notably, Gordon offered no contrary evidence suggesting that Proudfoot does not compete in the Canadian market.

With regard to the issue of the appropriate geographic scope, Gordon’s sole argument related to Proudfoot’s confidential information is that there was no evidence that Proudfoot’s Knowledge Management database contained any information about any specific Canadian clients, and that, even if it did, there was no evidence he accessed any such information. Underlying Gordon’s argument is the assumption that the confidential information he received at Proudfoot is relevant only to specific clients and to the United States market. However, if a restriction preventing Gordon from working for a direct competitor anywhere in the United States was reasonably necessary to protect the confidential information Gordon received, a point that Gordon does not contest, it is unclear why that information would not be equally relevant to the Canadian market. Even if Gordon never accessed confidential information about specific Canadian clients17, Gordon points to no evidence showing that the confidential information he did receive was only relevant to the United States and could not be used by a competitor to compete unfairly against Proudfoot in the Canadian market. As such, we cannot say that the district court clearly erred in including Canada in the geographic scope of the competitor non-compete covenant. See AutoNation v. Maki, No. 03-18896 CACE (03), 2004 WL 1925479, at *6, 9 (Fla. Cir. Ct. Aug. 25, 2004) [11 Fla. L. Weekly Supp. 990b] (enjoining former employee from competing within 50 miles of his former auto dealership and within 10 miles of any other dealerships owned by his former employer anywhere in the United States where employer established interests in confidential information and training and former employee failed to show that geographic area was overbroad), aff’d, 895 So. 2d 453 (Fla. Dist. Ct. App. 2005) (per curiam); AutoNation v. Hankins, No. 03-14544 CACE (05), 2003 WL 22852206, at *12, 16 (Fla. Cir. Ct. Nov. 24, 2003) [11 Fla. L. Weekly Supp. 35a] (same)18; Autonation, Inc. v. O’Brien, 347 F. Supp. 2d 1299, 1307-08 (S.D. Fla. 2004) [18 Fla. L. Weekly Fed. D171a] (finding reasonable geographic restriction preventing employee from “working in any geographic space in which [employer] operates” where employer had interest in confidential information); see also Intermetro Indus. Corp. v. Kent, No. 07-cv-0075, 2007 WL 1140637, at *7 (M.D. Pa. Apr. 17, 2007) (“When the employer’s protected interests include information that may be competitively harmful to the employer in any area it competes, then it is reasonable for a non-compete to extend to all areas the employer competes.”).

5. Intent To Breach The Competitor Non-Compete Covenant

Gordon also argues that because he had a good-faith reasonable belief that his work for Highland in Canada did not violate the Agreement, the district court should not have relied on his breach of the competitor non-compete covenant in granting the injunction and tolling the six-month restrictive period. According to Gordon, his belief was based on the fact that the competitor non-compete covenant did not explicitly include a geographic scope and that his territory at Proudfoot did not include Canada. In arguing that Proudfoot had to show that he intentionally breached the competitor non-compete covenant, Gordon relies on Milner Voice and Data, Inc. v. Tassy, 377 F. Supp. 2d 1209 (S.D. Fla. 2005) [18 Fla. L. Weekly Fed. D699a], which required the plaintiff to prove that the defendants intentionally breached the restrictive covenants at issue in order to receive injunctive relief, id. at 1214 (citing Sarasota Beverage Co. v. Johnson, 551 So. 2d 503, 508 (Fla. Dist. Ct. App. 1989)).

As an initial matter, Gordon assumes that if Florida law requires an intentional breach of a restrictive covenant in order to grant an injunction, his breach of the competitor non-compete covenant would not trigger the Agreement’s tolling provision unless that breach was intentional. However, all of the decisions that Gordon cites to in arguing that Florida law requires an intentional breach discuss intentional breach in the context of parties seeking a preliminary injunction. Although it is unclear if Gordon is correct in assuming that the same standard would also govern the tolling provision, it is unnecessary to resolve that question because we are not persuaded that, in a case governed by Fla. Stat. § 542.335, Florida law would refuse to grant injunctive relief if an employee reasonably believed that his conduct did not violate the restrictive covenants at issue.

Some older Florida intermediate appellate court decisions have stated that a plaintiff must prove that the defendant intentionally breached the restrictive covenant in order to be entitled to a preliminary injunction, see, e.g., Sarasota Beverage, 551 So. 2d at 508 (Fla. Dist. Ct. App. 1989); Silvers v. Dis-Com Secs., Inc., 403 So. 2d 1133, 1136 (Fla. Dist. Ct. App. 1981). Although these decisions refer, in what is arguably dicta, to an “intent” element, none of these decisions have held that a preliminary injunction should be denied if a plaintiff fails to prove that the defendant intentionally breached the restrictive covenant at issue. Nor do these decisions discuss or even mention the notion that a preliminary injunction should be denied if a defendant has a good-faith reasonable belief that his conduct did not violate the restrictive covenant at issue. In addition, these decisions are questionable precedent because they appear to misconstrue prior authority.19 Moreover, all of the Florida state court decisions referring to an “intent” element were decided under the earlier statute, Fla. Stat. § 542.33(2)(a), which does not apply to the Agreement, Fla. Stat. § 542.331.

Fla. Stat. § 542.335(1)(h), which governs this case, states that “[t]he violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant.” Nothing in the statute suggests that intentional breach is a precondition to relief, and no Florida state court decisions under this statute have required plaintiffs to prove intentional breach in order to benefit from the statutory presumption of irreparable injury.20 The only decision discussing an intent element under the new statute is Milner Voice and Data, Inc. v. Tassy, 377 F. Supp. 2d 1209, 1214 (S.D. Fla. 2005), a federal district court decision that relies on Sarasota Beverage, 551 So. 2d at 508, a case decided under the prior statute.

In addition, Fla. Stat. § 542.335(1)(h) states that:

A court shall construe a restrictive covenant in favor of providing reasonable protection to all legitimate business interests established by the person seeking enforcement. A court shall not employ any rule of contract construction that requires the court to construe a restrictive covenant narrowly, against the restraint, or against the drafter of the contract.

This section was added to Fla. Stat. § 542.335 in order to “legislatively discard[ ] prior Florida decisions that invoked and applied such doctrines in restrictive covenant cases.” Grant & Steele at 55. The approach proposed by Gordon, which would not even consider the employer’s legitimate business interests, would undermine the policy behind this section. It would make little sense for a court to follow this section’s mandate and construe a restrictive covenant broadly only to turn around and conclude that the defendant’s breach of the covenant should nonetheless be excused because the defendant may have reasonably interpreted the covenant more narrowly.21

Even assuming that intent would, in some circumstances, be relevant under Florida law and that Gordon’s belief was reasonable, we fail to see why such a belief should have prevented the district court from using Gordon’s breach as a basis to toll the six-month restrictive period and to enjoin prospectively Gordon from working for Highland. The fact that Gordon may have reasonably erred in determining the scope of the competitor non-compete covenant does not grant him a license to work for a competitor in violation of the Agreement.

C. Damages

The district court’s damages award is overturned because there was no showing that Gordon’s breach caused the claimed damage. The $1,659,000 damages award against Gordon was based on Gordon’s contact with Bombardier in February 2007, which led to Highland obtaining the “Bombardier Logistics” project. Although the district court made certain factual findings regarding Bombardier, those findings do not support the award and, in addition, fail to make findings on a number of critical details from the trial testimony. Those details, which appear to be undisputed, are noted below.

During the first half of 2006, Proudfoot was first introduced to, and began its sales process with, Bombardier. Carvalho’s testimony suggests that Proudfoot Europe was the specific Proudfoot entity involved in this sales process. Proudfoot submitted a proposal or bid to Bombardier in late May or early June 2006 while Gordon was still employed by Proudfoot.22 After its proposal was accepted, Proudfoot conducted a business review for Bombardier starting in mid-June 2006. After the business review ended, Bombardier hired Proudfoot to conduct a productivity-related project for Bombardier that included work focusing on lead times, productivity gains and procurement. Carvalho testified that this project was performed in the United Kingdom by Proudfoot Europe. In February 2007, Bombardier interrupted the project, two months prior to its scheduled completion. At trial, Carvalho admitted that Gordon did not work on Proudfoot’s project for Bombardier.

While at Highland, Gordon worked on two projects for Bombardier in Canada. In September 2006, Gordon was assigned to a project for Bombardier called “Bombardier Interiors,” which had begun prior to Gordon joining Highland. In February 2007, Gordon was personally involved in the “design and discovery” phase of a second project for Bombardier called “Bombardier Logistics.” During the “design and discovery” phase, Highland would do an initial analysis for a client in the hopes of convincing the client to hire Highland for an implementation project. Gordon attended all the formally scheduled meetings with Bombardier and all of the meetings where Highland made presentations to Bombardier about the proposed project. At these meetings, Gordon explained the benefits of the proposed project to Bombardier. Bombardier elected to hire Highland for the proposed project, which ultimately generated $2,600,000 in revenue for Highland. The initial “design and discovery” phase of this second project generated an additional $165,000 in revenue for Highland.

The district court made no findings about the details of either of Highland’s projects for Bombardier. At trial, however, Gordon testified that the Bombardier Interiors project involved helping Bombardier pass FAA certification for “burn tests” concerning the interiors of an aircraft. Gordon also testified that the Bombardier Logistics project, which involved a different division at Bombardier that builds different types of aircraft, was similar to the first project in that the primary objective for both projects was “look[ing] at ways in which they could better produce the aircraft to meet FAA guidelines in a faster fashion and mitigate some of the snags that they were having problems with.” As noted earlier, the only evidence about Proudfoot Europe’s Bombardier project was that it was a productivity-related project that included work focusing on lead times, productivity gains and procurement. Thus, based on this sparse record, it is impossible to determine if Highland’s Bombardier projects were even similar to Proudfoot’s Bombardier project. Also, there is no evidence suggesting any link between the interruption of Proudfoot Europe’s Bombardier project and Highland’s “Bombardier Logistics” project.

After finding that Gordon’s contact with, and solicitation of, Bombardier in February 2007 violated the non-solicitation clause and client non-compete covenant, the district court concluded that this breach entitled Proudfoot to $1,659,000 in damages, “an amount equal to the profits Gordon helped to generate for Highland from [the 2007] Bombardier project . . . .” The district court explained that “[s]uch ill-gotten profits are inextricably linked to Gordon’s breach of the Restrictive Covenants.” In justifying this finding, the district court, citing First Miami Secs., Inc. v. Bell, 758 So. 2d 1229, 1230 (Fla. Dist. Ct. App. 2000) [25 Fla. L. Weekly D1254c] (per curiam), noted that “[w]hen a former employee solicits clients in violation of a restrictive covenant, at least one Florida court has calculated the former employer’s losses by looking to the revenues earned as a result of the solicitation.”

Fla. Stat. § 542.335(1)(j) states that “[a] court shall enforce a restrictive covenant by any appropriate and effective remedy, including, but not limited to, temporary and permanent injunctions.” Thus, Proudfoot may seek damages for any breaches of the enforceable restrictive covenants in the Agreement, but “[a]n award of damages for breach of contract is intended to place the injured party in the position he or she would have been in had the breach not occurred.” Mnemonics, Inc. v. Max Davis Assocs., Inc., 808 So. 2d 1278, 1280 (Fla. Dist. Ct. App. 2002) [27 Fla. L. Weekly D559a]. As one court has explained:

To recover damages for lost profits in a breach of contract action, a party must prove a breach of contract, that the party actually sustained a loss as a proximate result of that breach, that the loss was or should have been within the reasonable contemplation of the parties, and that the loss alleged was not remote, contingent, or conjectural and the damages were reasonably certain.

Frenz Enters., Inc. v. Port Everglades, 746 So. 2d 498, 504 (Fla. Dist. Ct. App. 1999) [24 Fla. L. Weekly D2654a] (emphasis added); see also W.W. Gay Mech. Contractor, Inc. v. Wharfside Two, Ltd., 545 So. 2d 1348, 1351 (Fla. 1989) (per curiam) (stating that in order to recover lost profits a plaintiff must prove that “the defendant’s action caused the damage”). Thus, Proudfoot bears the burden to prove both that it sustained a loss and that “its lost profits were a direct result of” Gordon’s breaches of the client non-compete covenant and non-solicitation clause. Whitby v. Infinity Radio Inc., 951 So. 2d 890, 898 (Fla. Dist. Ct. App. 2007) (applying these principles in the context of a covenant not to compete under Fla. Stat. § 542.335).

Although, under Florida law, “uncertainty as to the precise amount of the lost profits will not defeat recovery so long as there is a reasonable yardstick by which to estimate the damages,” causation must be “proved with reasonable certainty.”23 Nebula Glass Intern., Inc. v. Reichhold, Inc., 454 F.3d 1203, 1213, 1217 (11th Cir. 2006) [19 Fla. L. Weekly Fed. C750a] (citing W.W. Gay, 545 So. 2d at 1350-51); see also TruGreen Cos., L.L.C. v. Mower Bros., Inc., 199 P.3d 929, 932-33 (Utah 2008) (surveying cases involving covenants not to compete in the employment context and holding that although a defendant’s profits may be relevant in measuring the amount of a plaintiff’s lost profits, plaintiff must still prove the “fact of damages”). One of the reasons why injunctions are a favored remedy for breaches of restrictive covenants is that it is “inherently difficult” to determine “what damage actually is caused by the employee’s breach of [of a restrictive covenant].” Capraro v. Lanier Bus. Prods., Inc., 466 So.2d 212, 213 (Fla. 1985) (citation omitted).

The district court erred, as a matter of law, in awarding Proudfoot damages for Gordon’s solicitation of Bombardier because the district court never found that absent Gordon’s breach, Proudfoot would have obtained the Bombardier Logistics project. Moreover, even if the district court had made such a finding, neither the underlying facts found by the district court nor any evidence in the record could support such a conclusion. The fact that Highland’s “profits are inextricably linked to Gordon’s breach of the Restrictive Covenants” is irrelevant absent a finding that Gordon’s solicitation of Bombardier caused Proudfoot to lose business. Damages for breach of a non-compete are intended to make the prior employer whole, not to punish employees.

The cases relied on by Proudfoot and the district court do not hold that Proudfoot can recover damages without having to prove that it suffered a loss caused by Gordon’s breach. Rather, these cases, which do not explicitly discuss the issue of causation, simply suggest that if Proudfoot could show that it lost the Bombardier Logistics project due to Gordon’s breach, the amount of Proudfoot’s lost profits could be calculated by looking at Highland’s profits.

In First Miami, 758 So. 2d 1229, the defendant employee had used confidential information to solicit customers from his former employer, resulting in some of the accounts being transferred to his new employer. The trial court had concluded, based on various records regarding the transferred accounts, that “damages can be readily calculated from the commissions derived by Defendant at his new place of employment.” Id. at 1230. While First Miami never explicitly discusses causation, the decision clearly implies that but for the defendant’s solicitation, the transferred accounts would have stayed at the former employer. Under such circumstances, it may be reasonable to assume that, absent the defendant’s solicitation, those accounts would have generated the same amount of commissions if they had remained with the former employer.

Similarly, in Litwinczuk v. Palm Beach Cardiovascular Clinic, L.C., 939 So. 2d 268, 272 (Fla. Dist. Ct. App. 2006) [31 Fla. L. Weekly D2590a], where a doctor began seeing patients from his former employer, causation was not at issue. In Litwinczuk, the court merely implied that the former employer’s losses may have been “calculable” based on what the doctor was currently billing those patients. Moreover, the cases from other jurisdictions cited to in the district court’s decision all involve similar scenarios where there was no dispute that the loss suffered was caused by the breach.

Here, however, there is simply insufficient direct or circumstantial evidence in the record from which it could reasonably be inferred that Proudfoot lost the Bombardier Logistics Project to Highland. Contrary to Proudfoot’s claim, the fact that Proudfoot would have been able to perform the work on the Bombardier Logistics project does not, standing alone, show that Proudfoot would have obtained the project absent the involvement of Highland (or, more specifically, of Gordon).

Proudfoot chose not to call any witnesses from Bombardier to testify about the Bombardier Logistics project. While Proudfoot may have had sound business reasons to avoid embroiling a client in this litigation, without such testimony the record is devoid of any evidence that Proudfoot lost the Bombardier Logistics project to Highland. See Nebula Glass, 454 F.3d at 1215 (finding evidence sufficient to show that defective component provided by defendant caused plaintiff to lose customers where, inter alia, two customers testified that they stopped purchasing plaintiff’s product because of the defective component). Moreover, Proudfoot did not provide any records indicating that it had made a proposal in connection with the Bombardier Logistics project and offered no evidence that it had any, even embryonic, plans for proposing a similar project to Bombardier. Nor was there any testimony that Proudfoot would have eventually pitched this project to Bombardier.

Furthermore, the district court found few facts concerning the origin of the Bombardier Logistics project. The district court simply found that in February 2007, Gordon was personally involved in the “design and discovery” phase of this project. Without knowing how Highland secured this project, it is impossible to infer that Proudfoot ever even had a chance at obtaining the project. Similarly, there is little evidence about the origin of Proudfoot Europe’s own Bombardier project and no evidence about Bombardier’s process for awarding consulting projects. It should be noted that Gordon testified that Highland obtained the Bombardier Logistics project because of an internal Bombardier referral based on the successful delivery of the Bombardier Interiors project.24 The district court never found that this testimony was not credible and there was no competing evidence offered by Proudfoot to explain the origins of the Bombardier Logistics project.

In addition, given the scant details about both the Bombardier project performed by Proudfoot Europe and Highland’s Bombardier projects, it is impossible to infer that Proudfoot Europe’s work for Bombardier would have necessarily led to Proudfoot securing the Bombardier Logistics project. The record also shows that Highland’s Bombardier projects were performed in Canada, whereas Proudfoot Europe’s project occurred in the United Kingdom. Notably, there is no evidence that Proudfoot ever even sought to perform any projects for Bombardier in Canada.

Finally, we note that the use of the term “ill-gotten profits,” which is found in both the district court’s decision and throughout Proudfoot’s brief, reveals what Proudfoot is truly seeking — not damages it suffered — but simply disgorgement of Highland’s profits. Yet, Proudfoot conspicuously avoids explicitly raising this argument and cites to no authority showing that Florida law permits disgorgement of profits for breach of contract.25 While Proudfoot points to the equitable principle that “ ‘no one shall be permitted to profit by his own fraud, or take advantage of his own wrong, or found any claim upon his own iniquity, or profit by his own crime,’ ” Cabrerizo v. Fortune Intern. Realty, 760 So. 2d 228, 229 (Fla. Dist. Ct. App. 2000) [25 Fla. L. Weekly D1178a] (quoting Ashwood v. Patterson, 49 So. 2d 848, 850 (Fla. 1951)), Proudfoot cites to no authority applying this principle to award disgorgement of profits as damages in a breach of contract case. As this Court has recognized, under Florida law, disgorgement of profits earned is not a remedy for breach of contract.26 Burger King Corp. v. Mason, 710 F.2d 1480, 1494 (11th Cir. 1983). Moreover, even if disgorgement were an appropriate remedy, Proudfoot seeks the “ill-gotten profits” of Highland, who is not even a party to this litigation.

Proudfoot alternatively argues that we should remand this case back to the district court for a damages finding pursuant to an alternative methodology. In Proudfoot’s Proposed Findings, Proudfoot presented two alternative damages proposals. First, Proudfoot argued that it is entitled to the total profits that Highland earned on all projects that Gordon worked on for Highland through the date of trial. This theory is untenable for many of the same reasons that we reverse the district court’s damages award. Second, Proudfoot argues that, “as a matter of equity,” Gordon should be “required to disgorge” to Proudfoot the total compensation that he received while employed at Highland. The authority relied on by Proudfoot does not persuade us that Florida law would permit such relief in this context. For example, Proudfoot cites to Phillips Chem. Co. v. Morgan, 440 So. 2d 1292 (Fla. Dist. Ct. App. 1983), which required disgorgement where the employee received kick-backs in breach of his fiduciary duty to his employer. That circumstance is clearly dissimilar. As such, we find no reason to remand the damages issue back to the district court.27

IV. CONCLUSION
Although Gordon has failed to establish that the injunction was inappropriate, we reverse the damages award. Proudfoot did not establish that it would have obtained the Bombardier Logistics project were it not for Gordon’s breach; accordingly, Proudfoot has failed to establish that it suffered any financial loss. REVERSED.

__________________

*Honorable David G. Trager, United States District Judge for the Eastern District of New York, sitting by designation.

1Gordon argues that this trip, which occurred in 1999, was part of his orientation and that he did not do any work on that project.

2Although Gordon maintains on appeal that his territory did not include Canada, at trial, he was impeached with a deposition answer where he admitted that prior to being transferred to Europe, he “covered a territory that included the United States, Canada and Mexico.” At trial, Gordon tried to explain that this only meant that he worked for Proudfoot North America, whose territory encompassed those countries. It should, however, be noted that Gordon stated during trial that at Proudfoot, “we would have meetings on a weekly basis where we would literally go through and discuss every project within North America, and I was aware of all the projects . . . .”

3It is somewhat unclear from Gordon’s trial testimony whether the pricing information that he had access to was relevant only to specific clients or whether this information had broader relevance to any potential client that Proudfoot might seek to obtain. Carvalho, however, testified that Proudfoot employees have access to “pricing mechanisms,” which would appear to be generally applicable.

4The details of Gordon’s work for, and solicitation of, Bombardier are addressed more fully in the discussion of Gordon’s appeal of the damages award.

5The Agreement defines “confidential information” as

(i) Client and prospective client names, needs, structures, organizations, data profiles, preferences, attitudes, idiosyncracies, and all other information concerning the business and operations of clients of the Company;

(ii) All of the Company’s applications, operating systems, techniques, methods, procedures and approaches, including diagnostic instruments, drawings, designs, graphs, charts, tapes, diagrams, films, specifications and software;

(iii) The Company’s fee structures, and procedures and arrangements and all financial information pertaining to the Company;

(iv) Inventions, and research and development activities of the Company; and

(v) All other materials and information concerning the Company’s business and its conduct which the Company treats as proprietary and confidential which is not generally known to others.

6The district court never discussed a geographic limitation for the covenants that restrict Gordon from contacting or working for Proudfoot clients.

7Although the district court also found that Gordon breached the client non-compete clause and the non-solicitation covenant by working on a project for Bombardier in September 2006 and by working on, and soliciting, a project for Bombardier in February 2007, the district court did not explicitly rely on those breaches as a basis for tolling the six-month restrictive period.

8Except for the portion of the injunction restricting the use or disclosure of Proudfoot’s confidential information, which has no temporal limitation, the remainder of the injunction, which ran for six months, has long since expired. It is unclear if the attorney’s fees award would prevent Gordon’s appeal of the injunctive relief from being moot, particularly as Gordon has not appealed that award.

Nonetheless, some of the same issues, such as, for example, the enforceability of the competitor non-compete clause and the tolling of the six-month restrictive period, underlie both the injunction and the damages award. Therefore, those issues are not moot. See Medtronic, Inc. v. Janss, 729 F.2d 1395, 1398-99 (11th Cir. 1984) (holding that even though injunction had expired, issues concerning enforceability and breach of restrictive covenants were not moot where damages claim, which was bifurcated from trial of injunctive relief, was still pending).

Although the question of whether the district court was correct in enjoining Gordon from using or disclosing Proudfoot’s confidential information for an indefinite period of time is not moot, Gordon has not challenged that determination on appeal. It should, however, be noted that similar covenants regarding confidential information have been found to be presumptively unreasonable under Fla. Stat. § 542.335(1)(d)1 where the restriction has a duration of more than two years. See Re/Max Intern., Inc. v. Citimaxx Corp., No. 08-cv-2554, 2009 WL 1883035 (M.D. Fla. Jun 30, 2009).

9We doubt that Proudfoot’s interest in Gordon’s training could justify the competitor non-compete clause. Proudfoot did not establish that Gordon’s training went “beyond what is usual, regular, common, or customary” in the consulting industry. Hapney v. Cent. Garage, Inc., 579 So. 2d 127, 132 (Fla. Dist. Ct. App. 1991), disapproved on other grounds, Gupton v. Village Key & Saw Shop, Inc., 656 So. 2d 475 (Fla. 1995). In addition, Gordon’s training, which appears to have involved general management, sales and consulting skills, would only seem to be “specialized” in the sense that it was geared to Proudfoot’s own methodologies, practices and procedures.

We also have doubts whether Proudfoot’s interest in its substantial client relationships would justify the competitor non-compete clause. Proudfoot’s legitimate business interest in its client relationships includes the relationships that Gordon established with Proudfoot clients as well as the client-specific confidential information known to Gordon. Although the covenants that prevent Gordon from contacting or working for Proudfoot clients would be reasonably necessary to prevent Gordon from exploiting any relationships that he developed with Proudfoot clients, we do not see why the broad competitor non-compete covenant, which bars Gordon from working for a competitor irrespective of which clients he is serving, would be reasonably necessary to protect Proudfoot’s interest in the relationships that Gordon developed with its clients. See Envtl. Servs., Inc. v. Carter, 9 So.3d 1258, 1263-64 (Fla. Dist. Ct. App. 2009) [34 Fla. L. Weekly D836c] (finding that non-compete agreement that prevented former employee from performing services for customers of former employer “with whom the Employee had any business-related contact . . . during his/her employment” was justified by former employer’s legitimate business interest in its substantial relationships with those customers). Moreover, a broad prohibition against work for a competitor may not be reasonably necessary to protect client-specific confidential information known to an employee if restrictions that prevent the employee from contacting, or working for, those clients would be sufficient to protect that information. Gordon, however, has not contended that his access to confidential information was limited to information that was only relevant to specific clients.

10The district court found that Gordon’s “employment by a direct competitor, no matter in what capacity, necessarily endangers Proudfoot’s confidential information.” Although this broad statement suggests that the district court believed that Gordon’s position at Highland was irrelevant, it must be stressed that, prior to making this statement, the district court had previously found that Gordon was in a position at Highland “that competes” with Proudfoot.

11The district court’s findings regarding the confidentiality and value of the information that Gordon had access to are somewhat troubling. For example, the district court found, without further explanation, that Proudfoot’s “valuable confidential business information” included the mere identity of Proudfoot’s clients as well as the pricing terms related to the company’s projects. Such information may not be sufficient to justify a restrictive covenant. See Deloitte & Touche USA LLP v. Lamela, No. Civ. A. 1542-VCP, 2007 WL 1114075, at *7-8 (Del. Ch. Apr. 6, 2007) (rejecting, under Fla. Stat. § 542.335, former employer’s attempt to apply non-solicitation clause to certain clients where employee did not have any relationship with those clients and former employer failed to establish it had any special pricing arrangement with those clients and did not allege “with any specificity that [the employee] had access to nonpublic pricing information or strategies of [the former employer] that would give [the employee] an unfair competitive advantage in dealing with” those clients). The district court’s findings illustrate why verbatim adoption of one party’s proposed findings are “strongly disapproved.” Lykes Bros., 64 F.3d at 634 n.4. That said, at trial, Gordon admitted that Proudfoot’s pricing information and the identity of Proudfoot’s clients were confidential. Moreover, before the district court, Gordon did not contest that he had access to confidential information while at Proudfoot and instead attempted to argue that Proudfoot’s interest in its confidential information did not justify the Restrictive Covenants because there was no evidence that he ever used that information or misappropriated any confidential Proudfoot materials.

12It is unclear under Florida law when confidential information will justify a broad restriction that prevents an employee from working for a competitor. There are two potentially conflicting strands of authority on this issue. Under the approach adopted by the district court, such covenants should be enforced where an employee is in a position at her new employer to use her former’s employer’s confidential information. Other authorities suggest a second, slightly different standard that would enforce such covenants where it is established that disclosure of the confidential information by the employee would be inevitable in the employee’s new position.

In following the first approach, the district court relied on an earlier federal case, Autonation v. O’Brien, 347 F. Supp. 2d 1299, 1305-08 (S.D. Fla. 2004) [18 Fla. L. Weekly D171a], which held that the employee’s access to confidential information, which included the former employer’s strategic plan, market analyses, forecasts, sales trends, and best practices, justified a restriction against work for a competitor where the employee was in a position at his new employer to use that information to unfairly compete against his former employer. Some Florida state court decisions also appear to have adopted this approach. See Open Magnetic Imaging, Inc. v. Nieves-Garcia, 826 So. 2d 415, 417, 419 (Fla. Dist. Ct. App. 2002) [27 Fla. L. Weekly D1785a] (per curiam) (holding that physician relations representative’s knowledge of confidential database of physicians, which was created as part of “confidential strategic marketing plan,” was a legitimate business interest that justified non-compete clause where employee was hired by competitor as a marketing representative); Austin v. Mid State Fire Equip. of Cent. Florida, Inc., 727 So. 2d 1097, 1098 (Fla. Dist. Ct. App. 1999) [24 Fla. L. Weekly D605b] (holding that restriction against work for a competitor was not reasonably necessary to protect pricing information known to the employee because the employee, who worked as a service technician, “does not set up service runs or set prices; he merely executes the service runs as instructed by his employer”).

A law review article co-authored by the Senate sponsor of Fla. Stat. § 542.335 implies that a second standard should govern. See John A. Grant & Thomas Steele, Restrictive Covenants: Florida Returns to the Original “Unfair Competition” Approach to the 21st Century, 70 Fla. B. J. 53, 53-56 (Nov. 1996) (hereinafter “Grant & Steele”). Grant & Steele, which has been cited by numerous Florida decisions, see, e.g., Univ. of Florida, Bd. of Trustees v. Sanal, 837 So. 2d 512, 516 (Fla. Dist. Ct. App. 2003) [28 Fla. L. Weekly D363b], suggest that in determining whether an employee’s knowledge of confidential information justifies a restriction against work for a competitor, courts should look to the definition of threatened misappropriation used in trade secrets law. See Grant & Steele at 54-55, 54 n.15; Fla. Stat. §§ 688.002-688.003. As other jurisdictions have recognized, under trade secrets law, threatened misappropriation can be enjoined where, based on the details of the trade secrets at issue and the employee’s position at the new employer, disclosure of the trade secrets would be inevitable. See Pepsico, Inc. v. Redmond, 54 F.3d 1262 (7th Cir. 1995) (enjoining employee from working for competitor based on inevitable disclosure of trade secrets even though employee did not enter into non-compete agreement); Payment Alliance Intern., Inc. v. Ferreira, 530 F. Supp. 2d 477, 482 (S.D.N.Y. 2007) (enforcing restriction against work for a competitor and noting factors to consider in determining whether there is a risk of inevitable disclosure). One Florida decision enforced a non-compete agreement based on this theory of inevitable disclosure. Fountain v. Hudson Cush-N-Foam Corp., 122 So. 2d 232, 234 (Fla. Dist. Ct. App. 1960) (finding that employee’s “knowledge of the trade secrets would be so entwined with his employment” that “it would seem logical to assume that his employment by a competitor . . . would eventually result in a disclosure of this information”).

Although the principle of inevitable disclosure would appear to impose a higher standard than the approach set out in O’Brien, it is unclear if, in practice, the application of those two standards would produce different results. It is, however, unnecessary for us to resolve this uncertain issue of Florida law because Gordon, whose argument on appeal addresses only the materials he retained, has not challenged the district court’s reliance on O’Brien or the district court’s findings about the other confidential information that he received.

13A few matters raised by Gordon are potentially relevant to the issue of whether the confidential information he received justified enforcement of the competitor non-compete clause. First, Gordon cites Johnson Controls, Inc. v. Rumore, No. 07-cv-1808, 2008 WL 203575 (M.D. Fla. Jan 23, 2008). However, Johnson Controls refused to enjoin an employee with confidential information from working for a competitor because his new position was located outside of the non-compete covenant’s geographic scope. Thus, Johnson Controls is consistent with the approach taken in O’Brien and is factually distinguishable from the instant case. Second, as discussed in n.12, even Grant & Steele, on whom Gordon relies, acknowledge that threatened disclosure of confidential information can justify the enforcement of a restrictive covenant. Third, to the extent that Gordon suggests that there must be evidence that he intended to use Proudfoot’s confidential information, that argument fails to persuade us that the competitor non-compete covenant was not enforceable. Both of the approaches outlined in n.12 appear to focus on objective facts regarding the employee’s new position and the confidential information at issue. See AutoNation v. Maki, No. 03-18896 CACE (03), 2004 WL 1925479, at *5 (Fla. Cir. Ct. Aug. 25, 2004) [11 Fla. L. Weekly Supp. 990b] (stating that analysis of whether an employee has the ability to use confidential information to compete unfairly against a former employer is “an objective one”), aff’d, 895 So. 2d 453 (Fla Dist. Ct. App. 2005) (per curiam); Payment Alliance Intern., 530 F. Supp. 2d at 482 (stating that “even if [defendant employee] acted with the best of intentions, ‘he may unintentionally transmit information gained through his association with [his former employer] during his day to day contact’ with his new employer” (quoting Global Telesystems, Inc. v. KPNQwest, N.V., 151 F. Supp. 2d 478, 482 (S.D.N.Y. 2001))). Even if Gordon’s subjective intent were considered, given the district court’s findings regarding Gordon’s deception during his departure from Proudfoot, one could doubt Gordon’s willingness to faithfully abide by the restrictions in the confidential information clause. See Pepsico, 54 F.3d at 1270-71 (holding that district court did not abuse its discretion in finding that employee’s lack of candor regarding acceptance of new job demonstrated employee’s willingness to misuse former employer’s trade secrets).

14Proudfoot argues that even if Canada were excluded from the geographic scope of the competitor non-compete covenant, Gordon’s company-wide work for Highland (such as his training role) would still constitute a breach of the competitor non-compete covenant even if Gordon was physically located in Canada when he performed that work because it benefitted Highland in the United States. Given that Gordon had certain company-wide duties, his mere physical situs may not be dispositive. However, because we conclude that the district court did not err in including Canada in the geographic scope of the competitor non-compete clause, it is unnecessary to address this point.

15If Gordon were to prevail on this argument, both Canada and Europe would have to be excluded from the geographic scope of the competitor non-compete covenant. It should be noted that Gordon also argues that the geographic scope of the competitor non-compete clause should not have included Europe because only Proudfoot Europe operates in Europe and neither Proudfoot Europe nor Proudfoot Global are parties to this action. Gordon first raised this argument in a motion under Federal Rules of Civil Procedure 52(b) and 59(e) after the district court issued its Findings of Fact and Conclusions of Law. This motion also argued that Proudfoot should not have been able to recover damages based on Gordon’s solicitation of Bombardier because Bombardier was only a client of Proudfoot Europe. The district court, which interpreted Gordon’s motion as raising a standing argument, denied the motion, finding that: (1) Gordon waived this argument under Rules 52(b) and 59(e); (2) Gordon waived this argument under Florida substantive law; and (3) Gordon’s argument failed on the merits. On appeal, Gordon contests the latter two rationales, but raises no argument challenging the district court’s finding of waiver under Federal Rules 52(b) and 59(e). As such, we decline to address Gordon’s challenges to the district court’s alternative grounds for denying the motion.

16In the Joint Pre-Trial Stipulation, Proudfoot’s “Statement of the Case” asserts that “Gordon was employed by Proudfoot from 1999 to 2006 and worked primarily in North America.”

17Although there is no direct evidence that Gordon accessed information about any Canadian clients through Proudfoot’s Knowledge Management database, Gordon admitted attending weekly meetings that discussed “every project within North America.”

18In both Maki and Hankins, the competitors that the former employees went to work for were within fifty miles of the employees’ former dealership and within ten miles of other dealerships owned by the former employer. However, the injunctions issued in both those cases did not simply prevent the former employees from working for those specific competitors, but covered the broader geographic territory identified above.

19The first Florida decision to discuss intentional breach in the context of a restrictive covenant is Hunter v. N. Am. Biologicals, Inc., 287 So. 2d 726 (Fla. Dist. Ct. App. 1974). In Hunter, the court affirmed a trial court’s refusal to dismiss a complaint that alleged: “(a) [t]he contract (b) [t]he [employee's] intentional direct and material breach thereof [and] (c) [n]o adequate remedy except by injunctive relief.” Id. at 728. The court in Hunter held that those “allegations are sufficient to state a cause of action under the statute.” Id. Subsequently, in Silvers, 403 So. 2d at 1136, the court stated that “in [Hunter],we said that in order to state a cause of action to enforce a covenant falling within the purview of the statute it was necessary only to allege” the three elements cited in Hunter, including “intentional direct and material breach.” (Emphasis added). Thus, Silvers, the first decision to suggest that intent was a required element, clearly misconstrues Hunter, which held that such allegations were sufficient, but never found that they were necessary. We have found no Florida decisions prior to Hunter suggesting that intentional breach must be shown in a restrictive covenant case.

20Prior to 1990, Fla. Stat. § 542.33(2)(a) stated that certain restrictive covenants “may, in the discretion of a court of competent jurisdiction, be enforced by injunction.” The statute had been interpreted to establish a presumption of irreparable injury upon proof that a valid restrictive covenant had been breached. See Capraro v. Lanier Bus. Prods., Inc., 466 So. 2d 212 (Fla. 1985). In 1990, the statute was amended to only allow a presumption of irreparable injury in specific situations, such as “use of specific trade secrets, customer lists, or direct solicitation of existing customers.” All of the decisions referring to an intent element were decided under the pre-1990 version of the statute. When Fla. Stat. § 542.335 was passed in 1996, the sentence “[t]he violation of an enforceable restrictive covenant creates a presumption of irreparable injury to the person seeking enforcement of a restrictive covenant” was included in order to “re-establish[ ] the pre-1990 amendment rule of [Capraro].”Grant & Steele at 55. The codification of the “pre-rule 1990 amendment rule,” however, does not include any reference to an intent requirement.

21The cases relied upon by Gordon would survive if this section only applied to monetary damages. There is, however, no indication that this section was intended to be so limited. Such a limitation would make little sense as both the statute and Florida case law acknowledge that injunctions are the primary tool to enforce restrictive covenants against employees. See Fla. Stat. § 542.335(1)(j) (“A court shall enforce a restrictive covenant by any appropriate and effective remedy, including, but not limited to, temporary and permanent injunctions.”); Capraro, 466 So. 2d at 213 (“[Although a] “court may award damages for breach of contract . . . the normal remedy is to grant an injunction . . . . because of the inherently difficult, although not impossible, task of determining just what damage actually is caused by the employee’s breach of the agreement.” (quoting Miller Mechanical, Inc. v. Ruth, 300 So. 2d 11, 12 (Fla. 1974))). Not only can it be difficult to prove damages in such cases, but the fact that defendant employees often have limited funds may render any damages remedy less than adequate.

22Because we reverse the damages award, it is unnecessary to address Gordon’s alternative argument that Carvalho’s testimony regarding the timing of Proudfoot’s proposal to Bombardier was insufficient to establish that Bombardier qualified as a “client” under the Agreement.

23Even though plaintiffs have some leeway in estimating the amount of damages, calculating damages may still be difficult, which no doubt explains why many restrictive covenants have liquidated damages clauses.

24The district court based the damages award solely on Gordon’s solicitation of the Bombardier Logistics project, never mentioning the Bombardier Interiors project in its discussion of damages. As noted earlier, Highland began working on the Bombardier Interiors project before Gordon joined Highland.

25If the violation of a restrictive covenant also involves misappropriation of trade secrets, a court is empowered to grant relief beyond ordinary contract damages. See Fla. Stat. § 688.004 (allowing court to award unjust enrichment beyond actual loss caused by misappropriation or “a reasonable royalty for a misappropriator’s unauthorized disclosure or use of a trade secret.”). The instant case does not involve trade secrets.

26In the specific context of contracts to purchase real property, the Florida Supreme Court has held that “[a] seller will not be permitted to profit from his breach of a contract with a buyer, even absent proof of fraud or bad faith, when the breach is followed by a sale of the land to a subsequent purchaser.” Coppola Enters., Inc. v. Alfone, 531 So. 2d 334, 335-36 (Fla. 1988). We have found no Florida authority suggesting that this principle permits disgorgement of profits in an ordinary breach of contract action.

27As Proudfoot has never clearly raised a claim of unjust enrichment or restitution, it is unnecessary to determine whether such claims would be actionable in this context. Even if Proudfoot had pursued such relief, one element of an unjust enrichment claim is that “it would be inequitable for the defendant to retain the benefit without paying fair value for it.” Banks v. Lardin, 938 So.2d 571, 577 (Fla. Dist. Ct. App. 2006) [31 Fla. L. Weekly D2412a] (emphasis added), review denied, 959 So.2d 718 (Fla. 2007). We fail to see how the amount of total compensation earned by Gordon at Highland would be indicative of the value of any benefits that Proudfoot may have conferred upon him. Although Gordon received a raise when he joined Highland, it is difficult to understand how Proudfoot could even attempt to quantify the portion of that increase that is attributable to Gordon’s knowledge of Proudfoot’s confidential information. In any event, that question is purely academic as Proudfoot has made no such attempt.

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