Daniel Kang v. The Mayor and Alderman of the City of Savannah

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-12136

Non-Argument Calendar

____________________

DANIEL KANG,

Plaintiff-Appellant,

versus

THE MAYOR AND ALDERMAN OF THE CITY OF

SAVANNAH,

ROY W. MINTER, Jr.,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Southern District of Georgia

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2 Opinion of the Court 24-12136

D.C. Docket No. 4:21-cv-00111-RSB-CLR

____________________

Before ROSENBAUM, KIDD, and WILSON, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant Daniel Kang appeals the district court’s

grant of summary judgment for Defendant-Appellees the Mayor

and Alderman of the City of Savannah (the City) and Police Chief

Roy Minter. Kang argues that the district court erred when it

granted summary judgment for Minter on Kang’s First Amend-

ment retaliation and Equal Protection claims and for the City on

Kang’s First Amendment retaliation and procedural due process

claims. After careful review, we affirm.

I. Background

Kang, an Asian male, began working for the City with the

Savannah Police Department (SPD) in September 2012. He served

as a corporal as part of a team that served arrest warrants. In April

2020, Kang and other officers went to serve an arrest warrant on

Kahlil Kelly. During this attempt, Kang and other officers detained

Darryl Faitele, initially believing him to be Kelly. But shortly after

detaining Faitele, Kang obtained Faitele’s wallet and identification.

Yet Kang continued to detain Faitele, which resulted in Faitele

cursing repeatedly at Kang. Despite initially ignoring Faitele, Kang

lost his temper and began cursing back at Faitele. Kang admitted

that he spoke to Faitele in an unprofessional manner. Later, Kang

again lost his temper and postured like he planned to fight Faitele

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24-12136 Opinion of the Court 3

in response to a comment Faitele made. Kang sprinted towards

Faitele intending to get in Faitele’s face, but another officer inter-

vened and stopped Kang. Kang wanted to hit Faitele but “knew

that wouldn’t be appropriate.” Kang did not include his sprinting

at Faitele and his use of profane language in his report.

Later in the month, Kang was placed on paid administrative

leave because of complaints from Faitele about that incident. Kang

received written notice of the investigation. SPD Sergeant Richard

Wiggins interviewed Kang in connection with the investigation. In

June 2020, a Disciplinary Review Board (DRB) within SPD re-

viewed the allegations against Kang. The allegations accused Kang

of violating three SPD policies: (1) Conduct Unbecoming;

(2) Treatment of Others; and (3) Reporting a Police Response to

Aggression/Resistance/Force. The DRB sustained the allegations

and recommended a review of the incident with additional train-

ing, job reassignment, and a five-day suspension.

The next step was for Kang to attend a telephonic “mitiga-

tion hearing”1 with Police Chief Minter and the DRB. After the

mitigation hearing, Minter reviewed the body camera footage

from the incident, as well as Kang’s disciplinary history, awards,

and commendations. Minter sustained the DRB’s determination

that Kang violated those SPD policies but elected to deviate up-

ward from their recommendation and terminate Kang’s employ-

ment. Minter explained that he decided to terminate Kang’s

1 The mitigation hearing was a required procedure under a newly proposed

“draft” policy, but it was not required by the policy in effect at the time.

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4 Opinion of the Court 24-12136

employment because of Kang’s aggressive demeanor towards

Faitele, his use of foul language, Kang’s threatening to charge

Faitele with obstruction despite no evidence to support that

charge, and the fact that he had looked at Faitele’s identification

and knew he was not Kelly yet continued to detain him anyway.

In July 2020, Kang received a notice of suspension before dis-

missal, a form to appeal the dismissal, and a DVD with evidence

supporting the dismissal. The notice stated that the reason for

Kang’s dismissal was “Violation of City/Dept Policy,” and under

“Explanation,” it listed the three violations of SPD General Orders:

“Conduct Unbecoming,” “Treatment of Others,” and “Reporting a

Police Response to Aggression Resistance Force.” Per the notice,

Kang would be suspended with pay for a few days and then termi-

nated, unless he appealed the decision within twenty-four hours of

receipt.

Kang appealed his termination in writing the same day.

Kang met with Minter for an hour as part of the appeal process

where he had the opportunity to explain why Kang believed termi-

nation was not appropriate. Ultimately, Minter denied Kang’s ap-

peal, determining that terminating Kang’s employment was still

appropriate. Kang appealed to the City Manager, Patrick Chang

Monahan.

Kang obtained counsel for his appeal. At the appeal before

Monahan, Kang spoke about his prior work history, including the

lack of disciplinary record, and that he accepted responsibility for

the allegations against him. Kang told Monahan that he would

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accept a level of discipline for the charges, but that he did not think

that termination was appropriate. Monahan testified that he spent

about two hours reviewing the facts of the case before Kang’s ap-

peal hearing, including the body camera video and fact-finding re-

port. Ultimately, Monahan upheld Minter’s decision to terminate

Kang’s employment.

In April 2020, Kang had signed a group human resources

complaint (Group Complaint) against Minter and submitted an in-

dividual complaint to HR. The Group Complaint focused on

Minter’s leadership. Kang never discussed the complaints with

Minter. While Kang did not know if Minter ever saw the HR com-

plaints, Monahan testified that Minter was generally aware of the

Group Complaint and the Group Complaint received press cover-

age.

Kang sued the City and Minter. In his complaint, Kang al-

leged First Amendment retaliation claims against the City and

Minter, Equal Protection claims against the City and Minter, pro-

cedural due process claims against the City and Minter, and a sub-

stantive due process claim against the City. The City moved for

summary judgment on all Kang’s claims against it, arguing that

Kang had not shown a constitutional violation. Later, Minter

moved for summary judgment on all Kang’s claims against him,

arguing he was entitled to qualified immunity.

For the City, the district court granted summary judgment,

finding that Kang failed to show any constitutional violation by the

City. For Minter, the district court granted summary judgment

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because Kang failed to show any constitutional violation, so Minter

was entitled to qualified immunity. Kang timely appealed.

II. Standard of Review

“We review a district court’s decision on summary judgment

de novo and apply the same legal standard used by the district court,

drawing all inferences in the light most favorable to the non-mov-

ing party and recognizing that summary judgment is appropriate

only where there are no genuine issues of material fact.” Smith v.

Owens, 848 F.3d 975, 978 (11th Cir. 2017). “We may affirm the dis-

trict court’s judgment on any ground that appears in the record,

whether or not that ground was relied upon or even considered by

the court below.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361,

1364 (11th Cir. 2007) (per curiam).

III. First Amendment Retaliation Claims

Kang asserted a First Amendment retaliation claim against

Minter and the City. First Amendment retaliation claims are gov-

erned by a four-stage analysis. See Carter v. City of Melbourne, 731

F.3d 1161, 1168 (11th Cir. 2013) (per curiam).

First, we consider whether Plaintiff’s speech was

made as a citizen and whether it implicated a matter

of public concern. If this first threshold requirement

is satisfied, we then weigh Plaintiff’s First Amend-

ment interests against [Defendant’s] interest in regu-

lating his speech to promote the efficiency of the pub-

lic services it performs through its employees. The

above two issues are questions of law that are decided

by the court. The court’s resolution determines

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whether Plaintiff’s speech is protected by the First

Amendment.

If his speech is so protected, the third stage of the

analysis requires Plaintiff to show that it was a sub-

stantial motivating factor in his termination. If Plain-

tiff is able to make this showing, the burden shifts to

[Defendant] to prove that it would have terminated

Plaintiff even in the absence of his speech. Because

these final two issues, which address the causal link

between Plaintiff’s speech and his termination, are

questions of fact, a jury resolves them unless the evi-

dence is undisputed.

Moss v. City of Pembroke Pines, 782 F.3d 613, 617–18 (11th Cir. 2015)

(internal quotation marks and citations omitted).

a. Minter

As to Minter, the district court found that he was entitled to

qualified immunity on Kang’s First Amendment retaliation claim

because Kang failed to show a violation of his First Amendment

rights. To prevail on a qualified immunity defense, the officers

must establish that they were acting under their “discretionary au-

thority.” Est. of Cummings v. Davenport, 906 F.3d 934, 940 (11th Cir.

2018). To rebut this defense, the plaintiff must show both that “the

defendant’s conduct violated a statutory or constitutional right”

and the right was “clearly established.” Skop v. City of Atlanta, 485

F.3d 1130, 1137 (11th Cir. 2007) (internal quotation marks omitted).

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The district court found that Minter was acting in his discre-

tionary authority, and so the burden shifted to Kang to show a con-

stitutional violation. The district court held that Kang failed to

meet his burden on the first threshold requirement because Kang

was speaking as an employee on a private matter, criticizing Minter

about his leadership practices and routine employment decisions.

Kang disagrees with the district court and asserts that he was speak-

ing as a citizen on a matter of public concern.

First, as to speaking as a citizen, “[w]hen public employees

make statements pursuant to their official duties, the employees

are not speaking as citizens for First Amendment purposes.” Gar-

cetti v. Ceballos, 547 U.S. 410, 421 (2006). “The central inquiry is

whether the speech at issue owes its existence to the employee’s

professional responsibilities.” Moss, 782 F.3d at 618 (internal quo-

tation marks omitted). “Practical factors that may be relevant to,

but are not dispositive of, the inquiry include the employee’s job

description, whether the speech occurred at the workplace, and

whether the speech concerned the subject matter of the em-

ployee’s job.” Alves v. Bd. of Regents of the Univ. Sys. of Ga., 804 F.3d

1149, 1161 (11th Cir. 2015). Second, “[t]o 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.’” Id. (quot-

ing Connick v. Myers, 461 U.S. 138, 146 (1983)). The inquiry turns

on “the content, form, and context of a given statement, as re-

vealed by the whole record.” Connick, 461 U.S. at 147–48.

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Kang spoke as an employee, not as a public citizen. Kang’s

speech concerned the subject matter of the employee’s job and oc-

curred in his workplace. See King v. Bd. of Cnty. Comm’rs, 916 F.3d

1339, 1345 (11th Cir. 2019) (“The court determined that King spoke

as an employee, rather than a private citizen, for several reasons,

including that she did not speak publicly and that her ordinary job

duties were the motivation for her speech.”). As the district court

noted, the purpose of the Group Complaint was to address

“Minter’s leadership abilities, his treatment of his subordinates in

SPD, and how that has affected the job performance” of those who

signed the Group Complaint. The Group Complaint was also filed

with the City’s Human Resource Department, a part of Kang’s

workplace. While the media received a copy of the Group Com-

plaint, there is no evidence that Kang communicated with the pub-

lic about the Group Complaint.

And Kang was not speaking about a matter of public con-

cern. The Group Complaint focused on the officers’ views that

Minter was a poor boss and critiqued Minter’s leadership skills.

The Group Complaint was a statement by police officers about

their dissatisfaction and disagreement with how Minter ran the

SPD. Kang’s attempts to recast the Group Complaint as a matter

of public concern by characterizing it as being about how Minter

ran the SPD and the SPD’s ability to police the community lacks

merit. See Boyce v. Andrews, 510 F.3d 1333, 1344 (11th Cir. 2007)

(per curiam) (An employee cannot “transform a personal grievance

into a matter of public concern by invoking a supposed popular in-

terest in the way public institutions are run.”); see also Morris v.

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Crow, 142 F.3d 1379, 1381 (11th Cir. 1998) (per curiam) (“The fact

that such information may be of general interest to the public,

however, does not alone make it of ‘public concern’ for First

Amendment purposes.”). The Group Complaint focused on offic-

ers, including Kang’s private disagreement with how Minter ran

the SPD.

Kang has failed to show that he was a citizen speaking on a

matter of public concern, so he has not shown a First Amendment

violation. Thus, we affirm the district court’s grant of summary

judgment for Minter on Kang’s First Amendment retaliation claim.

b. The City

As to the City, the district court addressed its motion for

summary judgment before Minter’s motion for summary judg-

ment. In its order, the district court assumed without deciding that

Kang met the first threshold requirement that Kang was a citizen

speaking on a matter of public concern instead of an employee

speaking about practices of his boss. Even though the district court

did not address the first threshold requirement—likely because the

parties did not brief the issue as they did not here—we can still af-

firm for any reason in the record. Thomas, 506 F.3d at 1364. As

discussed above, Kang has failed to show that he was a citizen

speaking on a matter of public concern, so he has not shown a First

Amendment violation. Thus, we affirm the district court’s grant of

summary judgment for the City on Kang’s First Amendment retal-

iation claim.

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IV. Equal Protection

Although Kang asserted Equal Protection claims against the

City and Minter, Kang only appeals the district court’s decision as

to Minter on this claim.

To prevail on a race discrimination claim under the Equal

Protection Clause,2 the plaintiff can use either the McDonnell Doug-

las 3 burden shifting framework or show “a convincing mosaic of

circumstantial evidence that would allow a jury to infer intentional

discrimination by the decisionmaker.” Smith v. Lockheed-Martin

Corp., 644 F.3d 1321, 1327–28 (11th Cir. 2011) (alteration adopted).

Kang does not attempt to proceed under the McDonnell Douglas

burden-shifting framework. Instead, Kang argues that he has pre-

sented enough evidence under the “convincing mosaic” frame-

work for his claim to go to a jury.

“A plaintiff may establish a convincing mosaic by pointing

to evidence that demonstrates, among other things, (1) suspicious

timing, ambiguous statements, or other information from which

discriminatory intent may be inferred, (2) systematically better

treatment of similarly situated employees, and (3) pretext.” Jenkins

v. Nell, 26 F.4th 1243, 1250 (11th Cir. 2022) (internal quotation

marks omitted).

2 Claims brought under the Equal Protection Clause are analyzed under the

same framework as Title VII. See Bryant v. Jones, 575 F.3d 1281, 1296 n.20 (11th

Cir. 2009).

3 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973).

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To support his convincing mosaic argument, Kang points to:

(1) five African American officers who he says were systematically

treated better than he was but were not fired; and (2) the suspicious

timing of his firing because it was during the height of the Black

Lives Matter movement.

As to the five African American officers, Kang lists corre-

sponding infractions to show that they were treated better than he

was. But as part of this review, Kang must identify evidence to

show that the comparators are “similarly situated in all material re-

spects.” Lewis v. City of Union City, 918 F.3d 1213, 1218 (11th Cir.

2019) (en banc). Kang must show that the comparator “engaged in

the same basic conduct (or misconduct) as the plaintiff”; was “sub-

ject to the same employment policy, guideline, or rule”; had “the

same supervisor as the plaintiff”; and “share[d] the plaintiff’s em-

ployment or disciplinary history.” Id. at 1227–28. For four of the

officers, 4 they were subject to the same employment policy and su-

pervisor, but that is where the similarities end. The officers en-

gaged in different misconduct than Kang, and Kang produced no

evidence about the other officers’ disciplinary history. Thus, Kang

has failed to show how those officers were similarly situated to

him.

Taking out the comparators leaves Kang with only the tim-

ing of his firing as his convincing mosaic evidence. Kang explained

his termination occurred when the Black Lives Matter movement

4 One officer’s conduct did not occur when Minter was Police Chief.

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was in full swing, which provided “Minter with additional political

cover” to terminate Kang. But this is a conclusory statement. See

Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam)

(“[M]ere conclusions and unsupported factual allegations are le-

gally insufficient to defeat a summary judgment motion.”). Kang

did not present to the district court nor to this court any evidence

to infer that he was fired because of his race.

Kang has failed to meet his burden under the “convincing

mosaic” framework. Smith, 644 F.3d at 1327–28. Thus, we affirm

the district court’s grant of summary judgment for Minter on

Kang’s Equal Protection claim.

V. Procedural Due Process Claims

Although Kang asserted procedural due process claims

against the City and Minter, Kang only appeals the district court’s

decision as to the City on this claim.

The Due Process Clause of the Fourteenth Amendment re-

quires a hearing before a public employee with a property right in

his continued employment is terminated, but the hearing “need

not be elaborate” and “need not definitively resolve the propriety

of the discharge.” Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532,

545 (1986). The “employee is entitled to oral or written notice of

the charges against him, an explanation of the employer’s evidence,

and an opportunity to present his side of the story.” Id. at 546. “To

require more than this prior to termination would intrude to an

unwarranted extent on the government’s interest in quickly re-

moving an unsatisfactory employee.” Id.

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Kang argues that he did not receive notice of the allegations

supporting his termination. Specifically, Kang faults the City for

not detailing DRB’s investigation into the Faitele incident before

Minter went against DRB’s initial recommendations and found ter-

mination a more appropriate recommendation. But Kang focuses

on the wrong time frame. While the DRB’s investigation was rel-

evant to Minter’s decision to terminate Kang, the decision was not

made until later. And once the decision was made, Kang received

all the process he was due under Loudermill before his termination.

On July 17, 2020, Kang received a notice of suspension before dis-

missal, which stated that Kang was suspended for two days effec-

tive July 17, 2020, with dismissal being effective on July 21, 2020, if

no notice of appeal was filed. In the notice, the City explained why

it was terminating Kang’s employment—violation of City/Depart-

ment policy with references to which orders Kang had violated.

Kang was not terminated on that day or even the effective dismissal

date because Kang timely appealed that decision.

Kang received a DVD that identified the evidence that sup-

ported the decision to terminate Kang’s employment. Then Kang

had the opportunity to present his evidence to Minter, which in-

cluded a presentation highlighting what Kang believed to be flaws

in the reasons terminating him. And when Minter still decided that

termination was appropriate, Kang had the opportunity to present

his evidence to Monahan where he had counsel. Kang was termi-

nated on July 30, 2020, over thirteen days after the notice of sus-

pension after having two opportunities to address why termination

was not appropriate. We agree with the district court that Kang

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was given appropriate notice about the decision to terminate his

employment and ample “opportunity to present his side of the

story” to Minter and Monahan. Loudermill, 470 U.S. at 546.

Kang received all the pre-termination process required un-

der Loudermill. Thus, the district court properly granted summary

judgment for the City on Kang’s procedural due process claim.

VI. Conclusion

Thus, we affirm the district court’s grant of summary judg-

ment for the City and Minter.

AFFIRMED.