Smith v. Deal et al

Filing 22

ORDER granting Defendants' 13 Motion for Summary Judgment with respect to all claims. The Clerk is DIRECTED to close this case. Signed by Judge Lisa G. Wood on 2/27/2019. (ca)

Kit t|ie ?limte))i ^totesc Bisitnct Court
tor ttie ^ontl^ertt Btsctrict ot (fleorgta
i^rtttifietntcit Siibtieiton
ALIECHIA SMITH,

Plaintiff,
V.

CV 2:17-143

MIKE DEAL, Individually, and in
his official capacity as City
Manager of the City of Jesup,
Georgia; and DOUG LEWIS, Jesup
Police Department Chief,
individually.
Defendants.

ORDER

Plaintiff filed this action seeking damages pursuant to 42
U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, and 42
U.S.C. § 1985.

Dkt. No. 1.

Before the Court is Defendants Mike

Deal, in his individual and official capacities, and Doug Lewis's

Motion for Summary Judgment, dkt. no. 13, pursuant to Federal Rule
of Civil Procedure 56.

ripe for review.

The Motion has been fully briefed and is

For the reasons stated below. Defendants' Motion

is GRANTED.

BACKGROUND

Plaintiff

Aliechia

Smith

is an

African-American

female

who

worked as a police officer for the City of Jesup for fifteen years.
Dkt. No. 20-2 ^ 1.

A0 72A

(Rev. 8/82)

On May 16, 2017, around 11:30 p.m. Smith was

on duty taking a meal break at her house when she heard over her
radio that an officer needed another officer to assist him.

No. 14-2 at 94.

Dkt.

Soon after. Plaintiff received a phone call from

Jocelyn, who is the daughter of Plaintiff's longtime girlfriend
and who had lived with Plaintiff for a large part of her childhood.
Dkt. No. 20-2 Sli 3, 4.
Id. SI 4.

Plaintiff views Jocelyn as her own daughter.

Plaintiff did not answer Jocelyn's call but soon after

called Jocelyn back, and Jocelyn answered that call.
2

at

94-95.

Jocelyn

was ''hysterical

pretty

Dkt. No. 14-

much" and

told

Plaintiff that she had been stopped and that the officers wanted

to search Jocelyn's car.

Id. at 95.

Plaintiff responded that the

officers had no reason to search her car and told Jocelyn to tell

them "no."

Id.^

Jocelyn then told the deputy that she was "on

the phone with Sergeant Smith, and she told me not to allow y'all
to search the vehicle."

Dkt. No. 20-2 SI 13.

Soon after the phone call ended. Plaintiff heard dispatch ask
for a female officer to perform a search incident to Jocelyn's
traffic stop.

Id. SI 17.

Plaintiff responded to dispatch that she

was en route but that the suspect was like family and thus she

^ Plaintiff testified that immediately after making that statement
she heard the deputy say in the background that he did not need
Jocelyn's consent to search the car because drugs were found.
Plaintiff contends she then told Jocelyn that if that is true they
can search her car.
Dkt. No. 14-2 at 95.
Defendants argue that
this statement did not come out during the internal affairs
investigation into Plaintiff's conduct. Whether it did or did not
will not affect the determinations in this Order.

could not perform the search. Id. Dispatch responded to Plaintiff
with "10-22," meaning "[d]isregard, don't come."

96.

Dkt. No. 14-2 at

Plaintiff ignored the 10-22 command and drove to the traffic

stop.

Id.

While Plaintiff was en route, another City of Jesup

officer arrived at the scene of the traffic stop.

f 19.

Dkt. No. 20-2

The deputies instructed the other officer who had just

arrived to leave.

Id. 1 20.

When that officer told Plaintiff

that he was instructed to leave. Plaintiff, still en route, ordered

him to stay because Jocelyn was involved in the stop.

Id. 1 21.

Plaintiff finally arrived at the scene with the specific intent of

checking on Jocelyn.

Id. 1 22.

Plaintiff was told by a supervisor

that she needed to leave or stay on the other side of the street;

she complied by staying on the other side of the street.

Id.

23, 24.
When

Chief

of

Police

Glenn

Takaki

learned

of

Plaintiff's

behavior during the traffic stop, he placed her on administrative
leave so an investigation could be performed.

Id. SI 25.

Takaki

testified that in order to avoid possible conflicts of interest he

concurred with the internal affairs investigator's suggestion that

an

outside

actions.

agency

conduct

the

Dkt. No. 14-2 at 67.

investigation

into

Plaintiff's

After receiving the final report

of the investigation from the outside agency, Takaki concluded
that Plaintiff violated the police department's standard operating

procedure governing professional image and that she may also have

committed obstruction of the deputies involved in the traffic stop.
Dkt. No. 20-2 f 27.

Takaki subsequently met with Plaintiff three

separate times to discuss the problems with her actions, to try
and understand why Plaintiff took those actions, and to find an
alternative means of addressing her actions besides termination.
Id. 1 28.

Plaintiff, however, insisted in all three meetings that

her conduct was not improper.
Plaintiff

be

terminated

Id. I 29.

because

Takaki recommended that

Plaintiff

''would

not

[ac] knowledge that there was any hint of wrongdoing."

even

Dkt. No.

14-2 at 37.

The

City

Manager,

Defendant

Mike

Deal,

recommendation that Plaintiff be terminated.

adopted

Takaki's

Dkt. No. 15-2 at 38.

In Deal's words, his role in Plaintiff's firing was making "the
final determination."

Id. at 28.

Nevertheless, the City of Jesup

provides an avenue by which City employees can appeal any adverse
employment decision to the City Grievance Committee, which has the

authority to affirm or reverse any such decision.
SI 44.

Dkt. No. 20-2

The City Manager is required to notify an employee who is

terminated of her right to appeal.

Id. SI 45.

Plaintiff was

properly notified and appealed Deal's decision, as she was entitled
to do under the City of Jesup Employee Handbook.
An evidentiary hearing was held.
Jesup

Employee

Handbook

is

Id.
titled

Id. SISI 34, 46.

Section 12 of the City of
"Grievance

and

Appeal

Procedures."

Dkt. No. 14-1 at 11.

Sub-section B of Section 12 is

entitled ^'Grievance Coiranittee" and states in relevant part:

1. Establishment. There is hereby created a Grievance
Committee

for

the

City

of

Jesup,

Georgia,

to

hear

grievances and appeals from personnel regarding actions
taken by the city department heads or other supervisory
personnel of the city.

1.2

Powers.

The

Grievance

Committee

matters brought before it under

shall

hear

all

procedures set forth

below, and after a hearing may, by a majority vote of
the Committee take such action concerning an affected
employee

as

■limited

to:

compensation

it

deems

appropriate,

reinstatement

lost,

if

any,

with

including
or

reprimand,

but

without

suspension,

not
full

or

dismissal from the service of the city.
Id.

After the evidentiary hearing in which Takaki and Plaintiff,

among others,

testified at length,

the majority of the Grievance

Committee voted to uphold Plaintiff's termination.
1

Dkt. No.

20-2

36.
One

more

Approximately

incident

two

weeks

is

before

2 The Handbook is mis-numbered.
^^3."

not

^^1."

relevant

the

to

Plaintiff's

traffic

stop

claims.

incident.

This sub-part should be numbered

Defendant Doug Lewis, who at the time was the Chief Deputy of the
Wayne

County

Sheriff's

Office,

Plaintiff,

and

other

law

enforcement officers attended a crisis intervention training class

C'C.I.T.").

Dkt. No. 15-3 at 42.

Before the class started, Lewis

and two other men were outside conversing when one of the men began
discussing music that had recently been performed by the local

high school band.

Dkt. No. 20-2

47, 50.

The man then played

one of the songs that the band had recently performed.

Id. SI 51.

Lewis stated to the group, ''that sounds like rap music." Id. SI 52.
Plaintiff was standing nearby—no more than twelve to fifteen feet
away from the group.

Dkt. No. 15-1 at 15.

Plaintiff overheard

the comment and interjected that "there's going to be some changes
around here."

Id.

Plaintiff testified that Lewis then "grew red-

faced [and] visibly angry," dkt. no. 20-2 SI 54, and she "felt,"
based on how they looked at her, that Lewis and another member of
the group "got pretty mad," dkt. no. 15-1 at 15.

group verbally responded to Plaintiff's comment.

No one in the

Id. at 16.

That

was the end of the interaction, and Plaintiff did not have any

further interaction with Lewis that day.
Plaintiff filed

this

action

to

Id. at 17.

recover

damages

and

other

compensation, which Plaintiff claims is owed to her under 42 U.S.C.
§ 1983, Title VII of the Civil Rights Act of 1964, and 42 U.S.C.
§ 1985.

LEGAL STANDARD

Summary judgment is required where ^^the movant shows that
there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law."
56(a).
the

Fed. R. Civ. P.

A fact is ""material" if it ""might affect the outcome of

suit

under

FindWhat.com,

the

658

governing

F.3d

1282,

law."
1307

FindWhat
{11th

Inv^r
2011)

Cir.

Grp.

(quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

v.

A

dispute is ""genuine" if the ""evidence is such that a reasonable
jury could return a verdict for the nonmoving party."

Id.

In

making this determination, the court is to view all of the evidence
in the light most favorable to the nonmoving party and draw all
reasonable inferences in that party's favor.

Johnson v. Booker T.

Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000).

The moving party bears the initial burden of demonstrating
the absence of a genuine issue of material fact.
Catrett, 477 U.S. 317, 323 (1986).

Celotex Corp. v.

The movant must show the court

that there is an absence of evidence to support the nonmoving

party's case.
burden,

the

Id. at 325.
burden

shifts

If the moving party discharges this
to

the

nonmovant

to

go

beyond

the

pleadings and present affirmative evidence to show that a genuine
issue of fact does exist.

Anderson, 477 U.S. at 257.

The nonmovant may satisfy this burden in two ways.

First,

the nonmovant ""may show that the record in fact contains supporting

evidence, sufficient to withstand a directed verdict motion, which

was

^overlooked or ignored' by the moving party, who has thus

failed

to

evidence."

meet

the

initial

burden

of

showing

an

absence

of

Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th

Cir. 1993) (quoting Celotex Corp., 477 U.S. at 332 (Brennan, J.,

dissenting)).
additional

Second,

evidence

the

nonmovant

sufficient

to

^'may

come

withstand

a

forward

directed

verdict

motion at trial based on the alleged evidentiary deficiency."

at 1117.
with

with

Id.

Where the nonmovant attempts to carry this burden instead

nothing

more

'"than

a

repetition

of

his

conclusional

allegations, summary judgment for the [movant is] not only proper
but required."

Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir.

1981) (citing Fed. R. Civ. P. 56(e)).
DISCUSSION

I. Section 1983 First i^endment Retaliation Claims

Plaintiff's

first

claims,

set

forth

in

Count

I

of

the

Complaint, are against Defendants Mike Deal in his individual and
official capacity as City Manager of the City of Jesup, Georgia,
and Doug Lewis in his individual capacity.

Plaintiff avers that

she was suspended without pay and fired in retaliation for engaging
in

speech

protected

by

the

First

Amendment.

The

allegedly

protected speech was the statement she made to Jocelyn that the

police needed her consent to search her car, and her comment at
the C.I.T. class that ''there's going to be some changes around
8

here."

For the reasons stated below, Plaintiff's claims set forth

in Count I fail.

A. Elements of a First Amendment Retaliation Claim

^'To state a claim under . . . [§] 1983, a plaintiff must

allege that (1) the defendant deprived him [or her] of a right
secured under the United States Constitution or federal law and

(2)

such

deprivation

occurred

under

color

of

state

law."

Richardson v. Johnson, 598 F.Sd 734, 737 (11th Cir. 2010) (citing
U.S. Steel, LLC v. Tieco, Inc.^ 261 F.Sd 1275, 1288 (11th Cir.
2001);Arrington v. Cobb Cnty., 139 F.Sd 865, 872 (11th Cir. 1998)).

In employment retaliation claims, specifically, "'[fJor a public
employee to establish that an employer conditioned [his or] her

job in a way that burdened a constitutional right impermissibly,
the employee must first demonstrate that the asserted right is
protected

by the

Constitution

and

that

he

or

she

suffered

adverse employment action for exercising the right."

an

Akins v.

Fulton Cnty., Ga., 420 F.Sd 1293, 1300 (11th Cir. 2005) (internal
citation and quotation marks omitted).

Thus,

[F]or a public employee to establish a priraa facie case
of First Amendment retaliation, [he or] she must show:

1)

that

the

speech

can

be

fairly

characterized

as

relating to a matter of public concern, 2) that her
interests as a citizen outweigh the interests of the
State as an employer, and 3) that the speech played a

substantial

or

motivating

role

in

the

government's

decision to take an adverse employment action.

420 F.3d at 1303.
burden

shifts

''"If the plaintiff meets these requirements, the

to

the

employer,

who

must

demonstrate

by

a

preponderance of the evidence that it would have made the same
employment decision, even had the plaintiff never engaged in the
protected conduct."

Rodriguez v. City of Doral, 863 F.3d 1343,

1350 (llth Cir. 2017) (citations omitted).

Turning to the adverse employment action element, ''[t]o be
considered

an

retaliation

adverse

case,

employment

the

action

in

a

First Amendment

complained-of action must

involve

an

important condition of employment."

Stavropoulos v. Firestone,

361 F.3d 610, 619 (llth Cir. 2004).

""A public employee states a

case for

retaliation

when the alleged employment action

would

likely chill the exercise of constitutionally protected speech."
420 F.3d at 1300.

In Akins, the Eleventh Circuit noted that it

had ''decided that, as a matter of law, important conditions of

employment include

discharges,

promote, and reprimands."

demotions,

refusals to

Id. (citations omitted).

hire or

The Akins

court summed up this prong; "if an employer's conduct negatively
affects an employee's salary, title, position, or job duties, that
conduct constitutes an adverse employment action."

10

Id.

B. Deal in his Official Capacity is En-bitled to Suznmary Judgment

When a plaintiff sues an officer in his official capacity,
the action is not against the officer but against the entity of
which the officer is an agent; ''[s]uch suits against municipal

officers are therefore, in actuality, suits directly against the
city that the officer represents."

Busby v. City of Orlando, 931

F.2d 764, 776 (11th Cir. 1991).

Further, ^'[w]hen suing local

officials in their official capacities under § 1983, the plaintiff

has the burden to show that a deprivation of constitutional rights
occurred as a result of an official government policy or custom."
Cooper V. Dillon, 403 F.3d 1208, 1221 (11th Cir. 2005).

Plaintiff has not argued that the City of Jesup has a custom
related to this claim.

Instead, Plaintiff seeks to hold the City

liable by means of a policy.

policy is a decision that is

officially adopted by the municipality, or created by an official
of such rank that he or she could be said to be acting on behalf

of the municipality."

Id. (citation omitted).

When seeking to

hold a city liable under § 1983 by suing a city official in his or
her official capacity, the plaintiff must show that the official
who committed the allegedly unconstitutional act had final policy

making authority.

See Holloman ex rel. Holloman v. Harland, 370

F.3d 1252, 1291 (11th Cir. 2004) ("A municipal governing body may

be held liable for acts or policies of individuals to whom it
delegated final decisionmaking authority in a particular area.").
11

"A

member

or

employee

a final policy maker only

if

of

his

a

governing

decisions

have

body

legal

is

effect

without further action by the governing body, and if the governing

body lacks the power to reverse the member or employee's decision."
Id. at 1292 (citations omitted).

official

does

particular

not

subject

have

final

matter

In other words, ""a municipal

policymaking

when

that

authority

official's

subject to meaningful administrative review."

and

local

positive

law," to

decisions

a

are

Scala v. City of

Winter Park, 116 F.3d 1396, 1401 (11th Cir. 1997).

to ''state

over

The Court looks

determine

whether

the

official who allegedly undertook the unconstitutional act had the
authority to bind the city with regard to that act.

Id. (citation

omitted).

i. Deal was nob bhe Final Policy Maker
Plaintiff

has

averred

that

Defendant

Deal

in

his

official

capacity acted as the City's final policy maker when he allegedly
unconstitutionally fired Plaintiff in retaliation for her engaging
in speech protected by the First Amendment.

Defendant Deal in his

official capacity has responded that he was not the final policy
maker regarding the decision to terminate Plaintiff because the
City Grievance Committee had plenary review over that decision.
In support of this position. Defendant has produced the City of
Jesup Employee Handbook, which establishes a Grievance Committee
to hear "appeals from personnel regarding actions taken by the
12

city department heads or other supervisory personnel of the city."
Dkt. No. 14-1 at 11.

The Committee is vested with the power to

^^take such action concerning an affected employee as it deems
appropriate."

Id.

Indeed, Plaintiff attempted to take advantage

of the Committee's powers when she appealed Deal's termination
decision to the Committee.

uphold Plaintiff's firing.

The Committee, of course, voted to

Irrespective of the outcome, the point

is that the Committee had the power to overturn that decision and
to

^^take

such

appropriate."
Despite

reasonable

action

concerning

[Plaintiff]

as

it

deem[ed]

Id.
the

jury

Committee's

could

find

powers.

that

meaningful administrative review.

the

Plaintiff

argues

Committee

does

that

not

have

Plaintiff's argument is based

solely on two statements that Deal made in his deposition.

First,

Deal testified that ""[in] y role is the final determination."
No. 15-2 at 28.

a

Dkt.

Second, Deal characterized himself as the top of

the organizational structure of the Jesup Police Department.

Id.

at 49-50.

Plaintiff

misstates

the

nature

of

the

inquiry,

and

her

argument fails to overcome the inescapable conclusion that the
Grievance Committee provided meaningful administrative review of
Deal's

decision

to

fire

her.

First,

the

Supreme

Court

has

^^established that the final policymaker issue is a question of law

for the trial judge."

Scala, 116 F.3d at 1402 n.4 (citing Jett v.
13

Dallas Independent School District, 491 U.S. 701, 737 (1989)).

Second, the record provides undisputed evidence that the Grievance
Committee had the power to reverse Deal's decision to terminate
Plaintiff and to take any action it deemed appropriate regarding
that

decision.

meaningful.

Further,

the

review

by

the

committee

was

Plaintiff was provided with an adversarial hearing

that lasted hours.

At that hearing, she was represented by counsel

and able to present evidence and testimony by witnesses who were
under

oath.

committee's

Given

the

absolute

appropriate.
administrative

robust,

power

Deal's

to

take

decision

review.

adversarial

any

was

Accordingly,

hearing

action

subject

to

and

it

the

deemed

meaningful

Plaintiff's claim against

Deal in his official capacity must fail.
Notably,

while

on

the

subject.

Defendants

argue

that

Plaintiff's retaliation claim against Defendants Deal and Lewis in

their individual capacities must fail because neither are a final
policy maker.

For this proposition. Defendants cite to Scala.

Scala, however, only addresses the issue of whether a municipality
can be held liable for its agents acts when that agent is sued in
his or her official capacity.

Scala's focus on suits against

municipal officers in their official capacity makes sense because
the final policy maker doctrine only applies to claims of municipal
liability and, as such, is inapposite to claims against state
actors in their individual capacities.
14

For

these

reasons,^

Defendant

Deal's

Motion

for

Suinmary

Judgment with respect to Plaintiff s retaliation claim against
Deal in his official capacity. Count I, is due to be GRANTED.
C. Defendant Lewis in his Individual Capacity is Entitled to
Suinmary Judgment

Defendant Lewis argues that Plaintiff has failed to establish

any facts showing that he made the decision to take the two adverse
employment actions against her, i.e., her suspension without pay
and

her

termination.

Under

the

summary

judgment

framework.

Defendant has satisfied his burden of showing an absence of a

genuine issue of material fact on this element of Plaintiff s
claim.

Accordingly, the burden shifts to Plaintiff to show that

a genuine issue of material fact exists on this element.
Plaintiff cannot satisfy her burden.

Indeed, Plaintiff has

failed to allege in her Complaint let alone provide evidence in
the record of any actions taken by Lewis that could be construed
as an adverse employment action.

See Holloman v. Harland^ 370

F.Sd 1252, 1263 (11th Cir. 2004) (explaining that an individual is
generally

only

liable

under

§

1983

''for

his

own

personal

3 For the same reasons that Deal in his individual capacity is
entitled to summary judgment, set forth in Part I.D. infra, the
Court

finds

that

Plaintiffs

First

Amendment

retaliation

claims

against Deal in his official capacity fail even if Deal was the
final policy maker.
15

actions") .'^

Thus, Plaintiff has not satisfied her burden, and

Defendant Lewis is entitled to judgment as a matter of law on these
claims.

Accordingly,

Defendant

Lewis's

Motion

for

Summary

Judgment with respect to Plaintiff's First Amendment retaliation
claims is due to be GRANTED.

D. Defendant Deal in His Individual Capacity is Entitled to Summary
Judgment

Deal argues that he is entitled to summary judgment because
no reasonable jury can find for Plaintiff on her First Amendment
retaliation

claims

involvement in

against

him

for

multiple

Plaintiff's termination

was

reasons:

minimal;

Deal's

Plaintiff's

statement to Jocelyn during the traffic stop was not protected;
and Plaintiff's statement at the C.I.T. training did not play a
substantial or motivating role in her termination.

Turning
adverse

to

Defendant's

employment

action

first

argument.

Deal

did

against

Plaintiff

when

he

decision to terminate Plaintiff.
on

Chief

Takaki's

take
made

an
the

Although this decision was based

recommendation

and

could

be

appealed

and

overturned by the Grievance Committee, Deal made that decision.

^ Holloman also notes that under certain limited circumstances an

individual may be liable on a supervisory theory for the actions
of his subordinates.

sets

forth

no

Holloman^ 370 F.Sd at 1263.

evidence

that

could

liability for Defendant Lewis.
16

give

rise

Here, Plaintiff

to

supervisorial

which impacted Plaintiff's position.

Thus, he took an adverse

employment action against Plaintiff.

Turning to Plaintiff's statement to Jocelyn at the traffic
stop. Defendant argues that no reasonable jury could find that
Plaintiff's
Amendment.
for

statement

was

speech

protected

under

the

First

The Supreme Court has established a two-step inquiry

determining

whether

a

constitutionally protected.

public

employee's

speech

is

First, courts must determine ^'whether

the employee spoke as a citizen on a matter of public concern."
Alves V. Bd. of Regents of the Univ. Sys. of Georgia, 804 F.3d

1149, 1159 (11th Cir. 2015) (quoting Carcetti v. Ceballos, 547
U.S. 410, 418 (2006)).

is

not

protected.

If the employee did not, then the speech

Deal

argues

that

this

first

step

is

not

satisfied as a matter of law because Plaintiff's speech was not
made ""as a citizen" and was not ^'on a matter of public concern."
Dkt. No. 13-1 at 13 (quoting Alves, 804 F.3d at 1159).
'"As to the ^citizen' requirement, the Supreme Court has held
that

^when

public employees

make

statements

pursuant to their

official duties, the employees are not speaking as citizens for
First Amendment purposes, and the Constitution does not insulate
their communications from employer discipline.'"
(quoting 547 U.S. at 421).

804 F.3d at 1160

^^The critical question under Garcetti

is whether the speech at issue is itself ordinarily within the
scope of an employee's duties, not whether it merely concerns those
17

duties."

Lane v. Franks, 573 U.S. 228, 240 (2014).

''^After Lane,

the exception to First Amendment protection in Garcetti for ^speech
that

owes

its

existence

to

a

public

employee's

professional

responsibilities,' must be read narrowly to encompass speech that
an employee made in accordance

with

or in furtherance of the

ordinary responsibilities of her employment, not merely speech
that concerns the ordinary responsibilities of her employment."
804 F.Sd at 1162 (quoting Garcetti, 547 U.S. at 421-22).

Here, a reasonable jury could find that Plaintiff was speaking
as a private citizen when she told Jocelyn that she should not
allow

her

car

to

be

searched.

The

statement

was

not ""made

in

accordance with or in furtherance of the ordinary responsibilities

of her employment."

804 F.Sd at 1162.

Instead, Plaintiff was

giving advice to a close friend, who she viewed as a daughter.
Although the speech concerned the ordinary responsibilities of her
employment as a police officer, the speech did not further those

responsibilities.

In fact, the speech did the opposite because it

was made in contravention of her ordinary responsibilities, as the

internal investigation found.

Thus, the Court must turn to the

second question of whether the speech at issue was on a ^^matter of

public concern."
^'The second requirement—that the speech address a matter of
public concern—concerns the context of the speech and asks whether
the employee spoke on a matter of public concern or on matters of
18

only

personal

interest."

Id.

''Whether

an

employee's

speech

addresses a matter of public concern must be determined by the
content, form, and context of a given statement, as revealed by
the whole record."

Connick v. Myers, 461 U.S. 138, 147-48 (1983).

"To fall within the realm of 'public concern,' an employee's speech
must relate to 'any matter of political, social, or other concern

to the community.'"
at 146).

804 F.3d at 1162 {quoting Connick, 461 U.S.

Finally, courts are to look at the "main thrust" of the

speech, i.e., whether the speech is "essentially public in nature
or private."

Id. (citation omitted).

The main thrust of Plaintiff s speech was on a matter of
private

concern,

and

no

reasonable

jury could find

otherwise.

Plaintiff was trying to protect Jocelyn by advising her of her
rights.

Although

there

is

of

course

public

concern

in

the

protections of the Fourth Amendment, Plaintiff was not speaking to
these protections in relation to the community but was speaking to
these protections in the specific context of the police searching
Jocelyn's car.

Given this context, content, and the form of the

statement (over a private telephone call), no reasonable jury could

find that Plaintiff's speech addressed a matter of public concern.

Thus, Plaintiff has not satisfied her burden of creating a genuine
issue of material fact on the element of whether her speech to
Jocelyn during the traffic stop was protected under the

19

First

Amendment.

Accordingly, this claim against Deal in his individual

and official capacity must fail.

Turning to Plaintiff's statement at the C.I.T. training,
i.e., ^Mt]here's going to be some changes around here," dkt. no.

20-2 5 53, no reasonable jury could find a causal connection
between that statement and her suspension or termination.

Deal

argues that Lewis is the only Defendant who has been alleged to
have heard the comment, and that Plaintiff has not alleged ""that

Deal, or anyone else who had a part in the termination process,
knew of Smith's remark, let alone [set forth] any actual evidence
that

could

be

used

to

prove

termination decision."

that

the

remark

influenced

the

Dkt. No. 13-1 at 14.

Plaintiff

responds

that

circumstantial

evidence

to

the

record

establish

Plaintiff first points to Lewis and

contains

a

sufficient

causal

connection.

Deal's close

relationship

noting that the two have known each other since the early 1970s
and that Lewis testified he could simply call Deal if he wanted to
be the Jesup Police Chief after Chief Takaki retired.

Further,

Plaintiff argues that a reasonable inference can be drawn that
Deal

became

red-faced

Plaintiff's comment,
Finally,
regarding

Plaintiff
other

at

not

the

C.I.T.

because of a

points

to

the

training

in

purported

fact

personnel decisions that

that
he

response

health

Lewis

tells

to

issue.

testified

Deal who

he

wants, which. Plaintiff argues, raises the reasonable inference
20

that ^'Lewis also ran who he didn't want by the city manager."

Dkt.

No. 20-1 at 15.

Considering

this

evidence.

Plaintiff

falls

far

short

of

meeting her burden of showing a genuine issue of material fact as
to whether Plaintiff was suspended or fired on the basis of her

allegedly protected speech at the C.I.T. training.

Plaintiff's

circumstantial evidence establishes, at most, that Lewis had the

ability to influence Deal's decision to fire Plaintiff (Deal did
not have a role in Chief Takaki's decision to suspend Plaintiff).

Pertinently, there is no evidence that Lewis did in fact influence,
or attempt to influence. Deal.

Further, even if Lewis did ask

Deal to fire Plaintiff—to be clear, there is no evidence in the
record that he did—Plaintiff has not shown any evidence that he

sought Plaintiff's firing because of Plaintiff's speech.

For these

reasons, no reasonable jury could find a causal connection between
Plaintiff's statement at the C.I.T. training and her suspension or
firing.

For these reasons. Deal is entitled to summary judgment with

respect

to

Plaintiff's

First

Amendment

retaliation

claims.

Further, turning back to Deal in his official capacity, the reasons
that

Plaintiff's

retaliation

claims

fail

against

Deal

in

his

individual capacity are sufficient for a finding of the same for
these claims against Deal in his official capacity.

Accordingly,

Deal's Motion for Summary Judgment with respect to Plaintiff's
21

First Amendment retaliation claims against him in his individual
(and official) capacity is due to be GRANTED.

II. Title VII Disparate Treatment on the Basis of Race Claims
For these claims set forth in Count II of the Complaint,

Plaintiff argues that her suspension and firing were because of
her

race

as

an

African-American.

These

claims

are

against

Defendant Deal in his official capacity as the City Manager of the

City of Jesup, Georgia and not Deal in his individual capacity or
against Lewis.

''Individual capacity suits under Title VII are

similarly inappropriate. The relief granted under Title VII is
against the employer, not individual employees whose actions would
constitute a violation of the Act."

Busby v. City of Orlando, 931

F.2d 764, 772 (11th Cir. 1991).

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e2(a)(1) makes it unlawful for an employer "to fail or refuse to

hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms,
conditions,

or

privileges

of

employment,

because

of

such

individual's race." "This provision forbids 'disparate treatment'

of,

or

'intentional

discrimination'

basis of race or national origin."

against,

employees

on

the

Jefferson v. Sewon Am., Inc.,

891 F.3d 911, 920 (11th Cir. 2018) (quoting Equal Emp't Opportunity
Comm'n v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2032

(2015)).

To

be

successful,
22

an

employee

must

establish

"discriminatory

intent

circumstantial

evidence."

citation omitted).

through

either

Id.

direct

(internal

evidence

quotation

marks

or
and

The analysis for a disparate treatment claim

is different depending on whether the employee is attempting to
establish her claim by direct or circumstantial evidence.

Plaintiff

did

not

allege

in

her

Complaint

Here,

direct evidence

of

discrimination.

Further, Plaintiff has not set forth any direct

evidence in

response to this

her

Motion.

Thus,

Plaintiff is

proceeding on a theory of circumstantial evidence.

"Absent direct evidence, a plaintiff may prove intentional
discrimination through the familiar McDonnell Douglas paradigm for
circumstantial evidence claims."

E.E.O.C. v. Joe^s Stone Crab,

Inc., 220 F.3d 1263, 1286 (11th Cir. 2000).

Under that framework,

a plaintiff must first establish a prima facie case of racial
discrimination.

"To

make

out

a

prima

facie

case

of

racial

discrimination a plaintiff must show (1) she belongs to a protected
class; (2) she was qualified to do the job; (3) she was subjected
to

adverse

employment

action;

and

(4)

her

employer

treated

similarly situated employees outside her class more favorably."
Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008).

Here, the City only disputes whether Plaintiff can establish

the

final

element—that

the

City

of

Jesup

treated

situated, non-African-American employees more favorably.

23

similarly

As part of the Title VII plaintiff's prima facie case,
the

plaintiff

must

show

that

his

employer

treated

similarly situated employees outside his classification
more favorably than herself.
the

plaintiff s

treatment

employees,

the

plaintiff

employees

are

similarly

respects.

In

To make a comparison of
to

must

that
show

situated

determining

of

non-minority

that
in

whether

he

all

and

the

relevant

employees

are

similarly situated for purposes of establishing a prima
facie

case, it is

necessary to consider

whether the

employees are involved in or accused of the same or
similar conduct and are disciplined in different ways.
If a plaintiff fails to show the existence of a similarly
situated employee, summary judgment is appropriate where
no other evidence of discrimination is present.
Holifield v. Reno, 115 F.3d 1555, 1562 (llth Cir. 1997) (citations
omitted).

Defendants

argue

that

similarly situated employee.

Plaintiff

has

not

established

a

Under the summary judgment standard.

Defendant has met its burden of showing an absence of a genuine
issue of material fact as to whether Plaintiff can satisfy this
element of her claim.

The burden, then, shifts to Plaintiff to

provide evidence in the record showing that a genuine issue of
fact does exist on this issue.

Plaintiff has not met her burden.

24

Plaintiff

situated

has

comparator.

to

sufficiently

outside

employee

failed

of

her

show

protected

a

class,

similarly

i.e.,

a

The sole comparator that Plaintiff points to is Lewis.

The record evidence that Plaintiff sets forth to establish Lewis

as a comparator is Lewis's testimony that he once ^Vent through a

wreck that was involving my cousin."

Dkt. No. 15-3 at 31.

This

evidence is not enough to establish Lewis as a comparator because
it does

not

show

that

Lewis

same or similar conduct."

was ""involved

in

or

accused

of the

Holifield, 115 F.3d at 1562.

Here,

Plaintiff inserted herself in a traffic stop by instructing Jocelyn
via telephone to refuse a search of her vehicle, and then Plaintiff
drove to the traffic stop despite being commanded not to do so.
Plaintiff has not established that Lewis is similarly situated in
either of these two respects and has not attempted to establish

another similarly situated employee.
forth

no

Defendants'

other

evidence

Motion

for

of

Finally, Plaintiff has set

discrimination.

Summary

Judgment

with

Accordingly,
respect

to

Plaintiff's disparate treatment claims. Count II of the Complaint,
is due to be GRANTED.

III. Section 1985(3) Conspiracy to Violate Civil Rights Claim
""To establish a violation of § 1985(3), a plaintiff must
show: (1) a conspiracy; (2) for the purpose of depriving a person
or class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws; and (3) an act in
25

furtherance of the conspiracy (4) resulting in an injury to person

or property, or a deprivation of any right or privilege of a
citizen of the United States."

536

(11th

Cir.

2013).

''In

Pace v. Peters, 524 F. App'x 532,

order

to

establish

a

§

1985(3)

conspiracy claim, [a plaintiff] must show an agreement between
'two

or

more

persons'

to

deprive

him

of

his

civil

rights."

Dickerson v. Alachua Cty. Comm'n, 200 F.3d 761, 767 (11th Cir.
2000) (quoting 42 U.S.C. § 1985(3)).

Defendants have argued that Plaintiff has neither alleged nor

provided any evidence of an agreement between them in any capacity,
let alone an agreement to deprive Plaintiff of her civil rights.
Defendant has thus met its burden of demonstrating the absence of

a genuine issue of material fact on this element of Plaintiff s
claim.

Again, the burden shifts to Plaintiff to set forth evidence

in the record showing that a genuine issue of fact does exist.
Plaintiff has not satisfied this burden and has not attempted to.

Plaintiff's response brief to this Motion wholly ignores, i.e.,

does not address. Defendants' argument that the record contains no
evidence of an agreement to deprive Plaintiff of her civil rights.
Accordingly, Defendants' Motion for Summary Judgment with respect
to Plaintiff's conspiracy claim is due to be GRANTED.

26

CONCLUSION

For these reasons, Defendants' Motion for Summary Judgment,

dkt. no. 13, is GRANTED with respect to all claims.

The Clerk

of Court is DIRECTED to close this case.

SO ORDERED, this 27th day of February, 2019.

HON^IS:^ GGf5BEp WOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN

A0 72A

(Rev. 8/82)

27

DISTRICT OF GEORGIA