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Employee’s Testimony Constitutes Protected Activity

Brannon, et. al. v. Finklestein (June 2014) involved an appeal of granting summary judgment in favor of the employer as to Brannon’s claims of retaliation for his constitutionally protected testimony about a state judge. Brannon was employed as a forensic psychologist for the Broward County Public Defender’s office, working for the Public Defender, Finklestein. In 2007, Brannon testified regarding charges against Judge Aleman, and allegations that she mistreated a criminal defendant. He testified Judge Aleman was not hostile toward him as a witness. Finklestein testified he was disappointed upon learning of Brannon’s testimony. Brannon then began receiving less work from the Public Defender’s office. Finklestein sent an email to an assistant in 2009 that Brannon would professional suffer “death by 1000 invisible cuts. Withering on the vine, pinner and wriggling on the wall with no target or issue or martyrdom for him to seek sanctuary.” Finklestein then ordered Brannon was removed from expert selection. Vacating the district court’s grant of summary judgment, the 11th Circuit held a reasonable fact-finder could conclude that Finklestein was subjectively motivated to reduce Brannon’s hours, and did so, because of his testimony. The 11th Circuit affirmed the judgment by the district court that Finklestein had qualified immunity in an individual capacity.

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* Cathleen Scott is licensed to practice in Florida only.

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