Terry Joyner v. City of Atlanta

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FOR PUBLICATION

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-13728

____________________

TERRY JOYNER,

Plaintiff-Appellant,

versus

CITY OF ATLANTA,

CHIEF GEORGE TURNER,

VAN HOBBS,

in their individual capacities,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:16-cv-01780-RDC

____________________

Before BRANCH, GRANT, and ED CARNES, Circuit Judges.

ED CARNES, Circuit Judge:

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2 Opinion of the Court 22-13728

Terry Joyner worked as a police officer with the City of At-

lanta Police Department (APD). He was denied a promotion to

Captain in December 2014, and he was moved from a flexible to a

fixed schedule in October 2015. He filed a lawsuit claiming that the

City through his former supervisors — Police Chief George

Turner, Major Earnest Finley, and Major Van Hobbs — engaged in

racial discrimination and retaliation in violation of Title VII, 42

U.S.C. § 2000e, et seq.; that Turner and Hobbs retaliated against

him in violation of the First Amendment; and that the City through

Turner and Hobbs retaliated against him in violation of the Geor-

gia Whistleblower Act, Ga. Code Ann. § 45-1-4.

Joyner lost all of his claims on summary judgment or at trial.

This is his appeal from the judgment against him. He loses it, as

well, except that we reverse the grant of summary judgment to

Turner and Hobbs on his First Amendment retaliation claim.

I. FACTS AND PROCEDURAL HISTORY

A. The Facts

Joyner was hired as a police officer with the APD in 1992.

APD officers rank in the following ascending order: Police Officer,

Senior Police Officer, Investigator, Sergeant, Lieutenant, Captain,

Major, Deputy Chief, Assistant Chief, and Chief. Joyner was pro-

moted to Investigator in 1999, Sergeant in 2001, and Lieutenant in

2007. He was not promoted again.

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Joyner worked in the APD’s Field Operations Division

(FOD), which, while he was working in it, was divided into six ge-

ographic patrol zones. Each zone was led by one Captain and one

Major.

1. In February 2008, Joyner Reported

Allegations of Racial Discrimination.

In February 2008, Joyner, who is White, was working in

Zone 3 under Major Earnest Finley, who is Black.1 On February

12, 2008, Joyner met with Finley to inform him that some White

officers had told Joyner that they believed Finley was treating them

less favorably than he was treating Black officers. Joyner testified

during his deposition that Finley was so angry when Joyner told

him that “[Joyner] felt like [Finley] was about to hit [him],” and that

Finley screamed something like, “Why are you doing this?”

Finley requested that Joyner investigate those allegations

and send any documentation directly to Finley. But Joyner under-

stood from a friend with the Office of Professional Standards

(OPS) that he needed to refer the matter to that office instead of

investigating it himself. So Joyner informed OPS of the allegations,

and at a second meeting sometime later in February he told Finley

that he was involving that office. Finley admitted in his deposition

1 The record sometimes uses racial identifiers like “White” and “Cau-

casian” interchangeably, and “Black” and “African-American” interchangea-

bly. For consistency, except when quoting the record, we will use the terms

“White” and “Black,” instead of any synonyms.

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that Joyner “did the right thing” in this situation, that the complaint

“should have been forwarded to OPS right away.”

Also present at both of Joyner’s February meetings with Fin-

ley was Lieutenant Scott Lyle, the assistant commander of Zone 3.

Joyner testified that after the second meeting, Lieutenant Lyle told

him: “[Y]ou really need to watch your back, because [Finley is]

someone that holds a grudge, and he’s going to come after you for-

ever.”

2. Between February and March 2008, Finley Changed

Joyner’s Schedule to Night Watch, but Joyner Re-

quested and Received a Transfer to a New Zone.

On or about February 20, 2008, Finley changed Joyner’s

schedule, transferring him from patrol day watch to patrol evening

watch, effective February 28.

Unhappy with that schedule change, Joyner filed an internal

grievance against Finley with Deputy Chief Peter Andresen assert-

ing that the schedule change was unlawful retaliation. Joyner tes-

tified that Andersen said his grievance was a “slam dunk” because

the schedule change never should have happened. To resolve the

grievance, Andresen allowed Joyner to transfer out of Zone 3 and

into Zone 2. That did resolve the matter. Because Joyner was

moved out of Zone 3, the schedule change Finley had ordered that

Joyner did not want never went into effect.

3. Between 2010 and 2014, Joyner’s Supervisors

Saw Problems with his Performance.

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Over the next couple of years, Joyner had some performance

problems. In 2010 he failed to appear for court when he was sub-

poenaed to testify against a suspect.

In February 2012, George Turner, the Police Chief at the

time, appointed Joyner to lead the fugitive squad. Erika Shields was

Deputy Police Chief while Joyner held that position. She testified

that Turner put Joyner in charge of that unit because “he wanted

to give Joyner an opportunity to shine.” Turner similarly testified

that he appointed Joyner to this position “because I really believed

that he was on the right track, that we needed him to show his

professionalism, his ability to accomplish a task in a very challeng-

ing assignment.”

But Joyner let them down. Joyner and Shields attended the

weekly Command Operating Briefing to Revitalize Atlanta (acro-

nym: COBRA) meetings, where Joyner gave updates on his unit’s

status and productivity. Shields testified that the fugitive squad was

underperforming under Joyner, who was often unprepared for

those meetings. Turner similarly testified that he had been “an ad-

vocate for Lieutenant Joyner,” but that he “was absolutely disap-

pointed [with him]” based on his work with the fugitive squad.

In December 2012 Joyner used his work email account to

email a man who was having an affair with Joyner’s wife. He told

the man: “I hope you’re having fun f ’ing my wife.” The APD inves-

tigated the incident and cited Joyner for sending that email from

his work email address.

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In June 2014 Joyner received a performance rating of 3.9/5,

which meant his performance was “effective,” but not either of the

two higher performance ratings: “highly effective” or “outstand-

ing.” Shields testified that “effective” was “pretty much” the lowest

evaluation that officers generally received.

Turner testified that other commanders wanted him to

move Joyner out of the fugitive squad. Because of Joyner’s perfor-

mance, in August 2014 he was transferred out of that unit and back

into Field Operations Division Zone 2.

After returning to Zone 2, Joyner did not get along with Van

Hobbs, the Major in charge of it. Without being asked, Joyner in-

formed Hobbs that he was not going to run Hobbs’s criminal in-

vestigation division unit for him because he had already served as

the unit’s commander in that Zone twice. Hobbs did not like that;

he thought it was arrogant of Lieutenant Joyner to tell a Major

what to do with his Zone.

Hobbs testified at trial that while serving as a Lieutenant in

Zone 2, Joyner made some decisions that caused “issues.” Specifi-

cally, Zone 2 was large (40 square miles), and it was divided into

two geographic “sectors.” Officers were assigned to patrol only

one sector. Joyner flipped those assignments; he “transitioned all

the A sector officers into B sector and all the B sector officers into

A sector.” Because the officers were less familiar with their new

areas within the large Zone and didn’t know the back streets, their

response times to crimes increased. Hobbs informed Turner that

Joyner’s decision was the reason for the increased response times.

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4. In December 2014, Turner Promoted Four Lieutenants

to Captain, and Joyner Was Not One of Them.

On December 24, 2014, Chief Turner signed a personnel or-

der appointing four Lieutenants to Captain, effective January 1,

2015. At that time, there were about 70 qualified Lieutenants and

a total of only six Captain positions, one for each patrol Zone.

Joyner was not promoted to Captain.

As Police Chief, Turner was the sole decisionmaker under

the Atlanta City Code for appointments to Captain or higher. He

personally appointed every person who reached those positions

during his time as Chief. He testified at trial that when considering

officers for promotions, he took into account “their education,

their work performance, their level of engagement throughout the

entire police department, and their ability to accomplish a certain

task that [he] was trying to fill.”

Turner did not use an application process or conduct inter-

views when deciding whom to appoint to higher-ranking positions.

But he had “regular conversations” with Lieutenants and Sergeants

about their career goals. For example, another man testified that

because he was interested in being promoted from Lieutenant to

Captain, he scheduled a meeting with Turner to go over his re-

sume. And he received the promotion in the December 2014 per-

sonnel order, the one involved in this case. Joyner, by contrast, was

not that proactive. He did not reach out to Turner to show his

interest in being appointed to Captain.

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Some parts of Chief Turner’s testimony at trial indicate that

he took into account the races of officers under consideration for

promotions. Turner agreed that when replacing the “select num-

ber” of Captain positions that were occupied by an African Amer-

ican Captain, he was “looking for the most qualified African-Amer-

ican lieutenant.” In those cases, a “white officer” would be “ex-

cluded from consideration.” Similarly, if he was “replacing a white

captain,” then “an African-American lieutenant was excluded from

consideration.” In that way, Turner “reserved a number of captain

positions in Zones 1 through 6, the field zones, for white officers.”

And others for Black officers.

Turner testified that in December 2014, Zone 2 had an Afri-

can-American Captain in office, and so “he or she was going to be

replaced by a well-qualified African-American officer.” Turner’s

practice “excluded from consideration people of every other race”

but African-Americans for that position. Turner never considered

Joyner, who was White, for the position of Captain in Zone 2.

But Turner also testified at trial that he did not exclude any

candidates from appointment to Captain based on their race. He

repeatedly pushed back on Joyner’s counsel’s use of the word “re-

served” to describe how race influenced his selections. He clarified:

“You keep using the word ‘reserved.’ I had the sole discretion to

change the major to a white or a black commander, which I did on

multiple occasions.” And he stated: “I will not say I reserved a po-

sition for any race or gender.”

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Instead, Turner testified, his “intent was to make sure that

we had the best individual for each rank at every appointment.” In

his own words, he explained that he had maintained “a long-stand-

ing practice that we were represented at all ranks and races through

our department.” He tried to “keep a balance” of three Black and

three White Captains, though at least at one point there were four

White and two Black Captains.

Turner was adamant that he had replaced outgoing officers

with new appointees of different races on “[m]ultiple occasions.”

For example, in the December 2014 personnel order that Joyner

challenges, Turner replaced Major Finley, who is Black, with a

White person. And he testified that when Assistant Chief An-

dresen, who is White, retired, Turner promoted a Black com-

mander to that position.

Other testimony also shows that Turner did not always re-

place outgoing officers with people of the same race. Joyner him-

self testified that he had seen Chief Turner replace a Black Captain

or Major with a White Captain or Major. And Joyner’s own wit-

ness, Lieutenant Azie Horne, admitted that in Zone 6, he had ob-

served that Chief Turner replaced a White Major with a Black Ma-

jor.

Turner added that he had a practice of moving new Captain

appointees out of the Zones in which they had previously been

working so that they would not be supervising their former peers.

Joyner, who was in Zone 2 at the time of the personnel order he is

challenging in this case, was aware of that practice.

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5. On or Around October 15, 2015, Joyner Reported

Allegations of “Ticket Fixing” to OPS and the FBI.

In August of 2015, Officer Tom Coxe pulled over the grand-

son of Andrew Young (the former Mayor of Atlanta and former

Ambassador to the United Nations). Coxe issued him three traffic

citations. According to Chief Turner’s testimony, the grandson

then called Turner (with whom he had a personal relationship) and

reported that Coxe had given him unclear instructions during the

traffic stop. Turner asked Major Hobbs to check on the incident.

Hobbs and Coxe discussed the matter, and Coxe decided to void

the tickets.

Then Joyner got involved. He testified that Coxe told him

that Coxe had “been asked to change some tickets” to warnings,

and to do it for Hobbs and Turner. Joyner understood that, during

Coxe’s conversation with Major Hobbs, Coxe felt like he was being

“threatened” with the risk of losing his “off days” or “being trans-

ferred” if he did not downgrade the tickets. (Turner and Hobbs

insist that they never asked Coxe to void the tickets and their only

purpose in questioning Coxe about the traffic stop was to find out

what had happened.)

On or around October 20, 2015, Joyner reported Hobbs and

Turner to the FBI and OPS for “fixing” the tickets. He alleged that

Hobbs improperly instructed Coxe to “take the tickets back.”

Turner and Hobbs were aware Joyner had filed the OPS re-

port against them. Hobbs was “frustrated” that Joyner had done

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that. Zone 2 Captain Sharonne Steed recalled Hobbs “being upset

about the complaint.”

6. On October 27, 2015, Hobbs took

away Joyner’s “flextime.”

Before October 2015, Joyner had been able on occasion to

start work early and at other times to work late, thereby

“chang[ing] [his] schedule to accommodate what [he] need[ed] to

do.” But Joyner was stopped from doing that just one week after

he had filed the ticket-fixing report. On October 27, 2015, at the

direction of Hobbs, Captain Steed notified Joyner that from then

on he would be required to work a shift from 10:00 a.m. to 6:00

p.m. In that way he was put on a “fixed” schedule and taken off a

“flexible” schedule or “flextime” as it is sometimes called.

Joyner emailed Steed on that same day to ask when his new

schedule would begin, explaining that: “I need to re-arrange an ex-

tra Job and the schedule with my kids.” Steed responded that the

schedule change was “effective immediately.”

Joyner testified that when Steed told him about the schedule

change, she also said: “I don’t know what’s going on with you and

the City, and I don’t want to have anything to do with it. This is

coming down from above me . . . .”

Joyner testified that the ability of officers ranked Lieutenant

(as he was) or higher to work a flexible schedule was a “custom that

goes on” and had “been going on” in the APD for years. Other

testimony supported that fact. Steed agreed that there was an “in-

formal” flextime policy, and that officers ranking Lieutenant or

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higher could use it to “[b]alanc[e] the hours out” and work extra

jobs if they wanted to. She herself used flextime to “cut out early”

and pick up her daughter or accompany her elderly parents to ap-

pointments. Major Daniel Rasmussen similarly testified that Lieu-

tenants were sometimes “allow[ed] . . . to alter their hours” and

“come in later” in order to work other jobs. He said that holding

an extra job is a “privilege” at the APD.

Joyner himself had been using his flexible schedule to sup-

plement his income by working an additional job in the afternoon

as an off-duty patrol officer for a private security company. By the

time of the schedule change, Joyner had held that second job for at

least twelve years. He testified that the elimination of his flextime

cut his income by causing his second job wages to be reduced by at

least two-thirds.

Joyner also testified that his superiors “knew that [he] had to

be at [his second job] at a certain time in the afternoon,” and he

had “a permit” (a written document signed by his “commanders”)

allowing him to work that position. That’s consistent with the de-

partment’s Standard Operating Procedures, which require that an

employee obtain written permission from the Chief or the Chief’s

designee before the employee can “engage in any employment out-

side the Department.”

Joyner testified that his loss of flextime also disrupted his

ability to pick up his young children (ages 5 and 9 at the time) from

school. Picking them up then was both a personal commitment

and, under a divorce decree, a legal obligation. After his flextime

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schedule was taken away, Joyner told his supervisors he had to have

more flexibility to take care of his kids, and he received permission

to end his workday at 4:00 p.m. twice a week to pick up his children

from school.

But even with that partial dispensation, Joyner was still una-

ble to fulfill his legal obligation to pick up his children after school

three times a week every other week. More specifically, he was left

unable to fulfill the terms of his divorce decree once every two

weeks. And if some “important” issue “came up” with his children,

Joyner lacked the flexibility to deal with it. He testified that if

“something came up where [he] needed to go get them,” he would

now have to “call [his] supervisor and take of[f ] from work and

clock out and go do it.”

On November 3, 2015, Joyner emailed Captain Steed about

his loss of flextime to “put on the record that this is an unwanted

shift change” and to state that he “firmly believe[d] [it was] retalia-

tory and directly related to [his] complaint(s) and not the needs of

the department.” Steed responded in part: “The change to you hav-

ing more set hours are [sic] not in any way related to legal action

you have ongoing with the City of Atlanta. . . . The set hours are

for more awareness when you will be at work and physically avail-

able to your unit personnel and citizens, as with all lieutenants un-

der Zone 2 command.”

Major Hobbs and Chief Turner deny that the schedule

change was retaliatory. Hobbs testified that it “had nothing to do

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with the OPS investigation” of him and that he gave the OPS inves-

tigation “no consideration whatsoever” when he put Joyner on a

fixed schedule. Instead, he asserts that he changed Joyner’s hours

in response to issues with Joyner’s accessibility. Hobbs testified that

Joyner was not returning missed calls. Hobbs added that on one

occasion after he had been unable to reach Joyner, he sent him an

email saying, “this is the third time you’ve been unavailable by your

cell phone.” (That email is not in the record.)

Hobbs admitted that “a month or two” passed between that

email and the change in Joyner’s schedule. He suggested that some

unspecified event finally pushed him to take away Joyner’s flextime,

explaining: “I gave him another opportunity and after that last op-

portunity that’s when I told Captain Steed since I can’t find him,

tell him he is on a fixed schedule, Monday through Friday, 10 a.m.

to 6 p.m.” Hobbs did not provide any detail about the one “last

opportunity” he gave Joyner and how Joyner failed to take ad-

vantage of it.

In his testimony Joyner admitted that Major Hobbs had told

him he was “having difficulty contacting” him. But in Joyner’s tell-

ing, the communication issue was not entirely his fault. Joyner re-

membered two occasions before October 27, 2015 (the day his flex-

time was removed) when Hobbs had struggled to contact him. On

one of those occasions Joyner was at home, and he had made it

“very clear” to Hobbs that it was difficult to reach him at home due

to cell service issues in the area. On the second occasion Joyner

recalled Hobbs having trouble reaching him, Joyner had been on

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duty at Lenox Mall, where it is difficult to get a cell phone signal or

even “get a police radio to work.”

Joyner, against his wishes, worked the fixed schedule for a

period of eight or nine months, until he was transferred to Zone 5,

outside of Hobbs’s chain of command. Once in Zone 5, Joyner

was again allowed to work a flexible schedule. So the claimed re-

taliatory harm allegedly resulting from his reporting ticket fixing

was the loss of his ability to work a flextime schedule for a period

of eight or nine months.

B. The Pretrial Proceedings

Joyner filed a lawsuit asserting four claims that are relevant

to this appeal. One was a Title VII racial discrimination claim, see

42 U.S.C. § 2000e-2(m), against the City of Atlanta, Chief Turner,

and Major Finley, based on the theory that Joyner was denied a

Captain position in 2014 because Turner had a policy of replacing

outgoing Black and White captains with captains of the same race.

The district court granted the motion to dismiss that claim against

Finley and Turner because Title VII grants relief only against em-

ployers, not against employees. That dismissal is not challenged on

appeal. The court did not dismiss the Title VII claim against the

City itself; that claim proceeded to trial.

The other three claims in the lawsuit were based on allega-

tions of retaliation: (1) a claim under Title VII, see 42 U.S.C.

§ 2000e-3, against the City alleging that it denied Joyner a Captain

position in 2014–15 because of his 2008 complaint of racial discrim-

ination; (2) a First Amendment claim under 42 U.S.C. § 1983 against

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Turner and Hobbs alleging that they took away his ability to work

flextime because he reported ticket fixing to the FBI and the Office

of Professional Standards; and (3) a Georgia Whistleblower Act, see

Ga. Code Ann. § 45-1-4, claim against the City alleging that the

same loss of a flextime schedule was retaliation based on Joyner’s

report of ticket fixing.

The City, Turner, and Hobbs moved for summary judgment.

A magistrate judge issued a report recommending that the court

deny the motion for summary judgment on Joyner’s Title VII racial

discrimination claim, but that it grant the motion on Joyner’s three

retaliation claims. The district court determined that Joyner’s ob-

jections to the magistrate judge’s report and recommendation had

“no merit.” It concluded that Joyner’s Title VII retaliation claim

failed because there was no causal connection between his 2008

complaint of racial discrimination and the decision not to appoint

him Captain in 2014–15. The court also concluded that Joyner’s

§ 1983 First Amendment and Georgia Whistleblower claims failed

because he had not shown an “adverse employment action.” The

district court approved the report and recommendation and

adopted it as the judgment of the court.

C. The Trial and Post-Trial Proceedings Involving

the Title VII Discrimination Claim

Joyner’s Title VII racial discrimination claim — and that

claim alone — proceeded to trial. On the second-to-last day of the

four-day trial (not including jury deliberations), after Joyner had

presented his case and before he rested, he moved under Federal

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Rule of Civil Procedure 15(b)(2) to amend the pleadings to con-

form to the evidence. He sought to add an equal protection claim

2

under 42 U.S.C. § 1983 and a 42 U.S.C. § 1981 claim. The court

allowed Joyner to add the equal protection claim, but not the § 1981

claim.

Right after he moved to amend the pleadings, Joyner moved

for judgment as a matter of law under Rule 50(a). Pointing to Chief

Turner’s testimony that he “reserved” certain positions for people

of certain races, Joyner moved the court to direct a verdict for him

on the Title VII claim. The court denied that motion.

The first two questions on the verdict form asked the jury to

enter findings by a preponderance of the evidence on two ques-

tions. One: did the City “den[y]” Terry Joyner an appointment to

Captain? Two: if so, was race a “motivating factor” in that deci-

sion?

Joyner objected to the first question on the verdict form, the

one asking whether the City had “denied” him a promotion. He

argued that was not an independent element of his Title VII claim

2

Title 42 U.S.C. § 1981(a) states: “All persons within the jurisdiction of

the United States shall have the same right in every State and Territory to

make and enforce contracts, to sue, be parties, give evidence, and to the full

and equal benefit of all laws and proceedings for the security of persons and

property as is enjoyed by white citizens, and shall be subject to like punish-

ment, pains, penalties, taxes, licenses, and exactions of every kind, and to no

other.” The statute’s prohibitions include “racial discrimination against white

persons.” McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 287 (1976).

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because it did “not reference in any way . . . that race was a factor

in the denial of the appointment.” The court overruled the objec-

tion.

Before the jury got the case, the parties had stipulated that

the APD’s “promotion process” is set forth in the City’s Code of

Ordinances (stipulated fact #4). And they had stipulated that ac-

cording to that Code, “Chief Turner was the sole decision-maker

for appointments to the positions of Captain or higher” (stipulated

fact #5). During deliberations, the jury asked to “see the City of

Atlanta Charter that grants authority to [the] Police Chief for ap-

pointments,” citing stipulated fact #4. (No one disputes that by

“Charter,” the jury meant the Code.) The court provided the jury

with the part of the Code which explained that certain appoint-

ments, including Captain appointments, are made at the discretion

of the Police Chief.

Joyner also requested that the court provide the jury with

the part of the Code that included the City’s anti-discrimination

employment policy. He based that request on the Rule of Com-

pleteness and asserted that statements made by the City’s attorney

during closing arguments had confused the jury about whether

Chief Turner was subject to those laws. This is the part of the ar-

gument to the jury by the City’s attorney that Joyner was talking

about:

You know, if [Turner] has that practice [of replacing

outgoing Black Captains with officers of the same

race], he ain’t alone. . . . And it happens at the highest

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levels of government you have to do this. That is why

George H.W. Bush nominated Thurgood Marshall to

replace Clarence Thomas on the Supreme Court.

First black Supreme Court Justice replaced by a black

Supreme Court Justice.

(Of course, the City’s attorney got it backwards. Justice Thomas

was appointed to the seat vacated by Justice Marshall, not the other

way around.) The court denied Joyner’s request to provide the jury

with the part of the Code containing the anti-discrimination policy.

The jury returned a verdict in favor of the City on Joyner’s

Title VII discrimination claim. The jury answered “no” to the ques-

tion of whether the City had denied Joyner an appointment to Cap-

tain (the question to which Joyner had objected). As we’ll discuss,

the City’s explanation for the jury’s finding is that Chief Turner

never had a reason to consider Joyner for that position, because

Joyner had failed to put himself forward as a candidate and also be-

cause of his unsatisfactory performance in other roles. The jury did

not reach the other question on the verdict form.

Following trial, Joyner filed a motion for judgment as a mat-

ter of law under Rule 50(b) and for a new trial under Rule 59. His

motion challenged the court’s decisions (1) not to direct a verdict

as to liability on the Title VII claim, (2) to overrule Joyner’s objec-

tion to the first question on the jury verdict form, and (3) not to

send the jury the part of the Code containing the City’s anti-dis-

crimination policy in response to its question about Chief Turner’s

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20 Opinion of the Court 22-13728

appointment authority. The district court denied the motion. This

is Joyner’s appeal.

Joyner challenges the grants of summary judgment to Chief

Turner, Major Hobbs, and the City on his retaliation claims. He

also challenges rulings the district court made involving the trial of

his claim that racial discrimination was a motivating factor behind

the City’s failure to promote him to captain in 2014–15.

II. DISCUSSION

We will start by reviewing the district court’s grant of sum-

mary judgment on Joyner’s three retaliation claims and then review

the trial and post-trial rulings on his discrimination claim, which

survived summary judgment but not the jury trial.

A. The Grants of Summary Judgment Against

Joyner on His Three Retaliation Claims

The three retaliation claims Joyner brought were: (1) a claim

under Title VII that he had been retaliated against in 2014 for com-

plaining in 2008 about racial discrimination against white employ-

ees; (2) a claim under 42 U.S.C. § 1983 that he had been retaliated

against for reporting ticket fixing; and (3) a Georgia Whistleblower

claim that he had been retaliated against for reporting ticket fixing.

1. The Grant of Summary Judgment on

the Title VII Retaliation Claim

Title VII makes it unlawful “for an employer to discriminate

against any of his employees . . . because [that employee] has op-

posed any practice made an unlawful employment practice.” 42

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22-13728 Opinion of the Court 21

U.S.C. § 2000e-3(a). The word “because” is key. Unless the plain-

tiff establishes that element, a Title VII retaliation claim cannot sur-

vive. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362

(2013) (“[A] plaintiff making a retaliation claim under § 2000e–3(a)

must establish that his or her protected activity was a but-for cause

of the alleged adverse action by the employer.”); Gogel v. Kia Motors

Mfg. of Ga., Inc., 967 F.3d 1121, 1135 (11th Cir. 2020) (en banc) (“[A]

plaintiff must prove that had she not engaged in the protected con-

duct, she would not have [suffered the adverse action].”) (alteration

adopted) (quotation marks omitted).

Joyner’s claim alleged that in December 2014 he was denied

a promotion to Captain because nearly seven years earlier, in Feb-

ruary 2008, he had complained about racial discrimination. The dis-

trict court granted summary judgment against Joyner after deter-

mining that he had not created a genuine issue of fact about

whether his 2008 complaint about racial discrimination was the

reason the City did not promote him in 2014. The court was right

to do so.

To prevail on a Title VII retaliation claim, the causation ele-

ment requires a plaintiff to show that the decisionmaker was aware

of the protected conduct, which in this case is the complaint Joyner

had made about racial discrimination six years earlier. See McCann

v. Tillman, 526 F.3d 1370, 1376 (11th Cir. 2008); Goldsmith v. City of

Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993) (“At a minimum, a

plaintiff must generally establish that the employer was actually

aware of the protected expression at the time it took [the] adverse

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22 Opinion of the Court 22-13728

action.”); see also Hudson v. S. Ductile Casting Corp., 849 F.2d 1372,

1376 (11th Cir. 1988) (affirming grant of summary judgment to the

defendant on retaliatory discharge claim where there was uncon-

tradicted evidence the decisionmakers did not know of the plain-

tiff’s protected conduct); McCollum v. Bolger, 794 F.2d 602, 610–11

(11th Cir. 1986) (affirming judgment for defendant and holding that

the plaintiff failed to prove a prima facie case of retaliation where

the evidence showed that the decisionmaker did not know that the

plaintiff was engaging in protected conduct). There is an exception

for “cat’s paw” situations, see Crawford v. Carroll, 529 F.3d 961, 979

n.21 (11th Cir. 2008), but there is no evidence of a paw, whether a

cat’s or otherwise, in this case.

Chief Turner was the sole decisionmaker on the question of

who would get the 2014 promotion. Major Finley was the person

to whom Joyner had made the complaint about racial discrimina-

tion in 2008. Finley testified in his deposition that he never said

anything to Chief Turner about Joyner’s complaint. And Chief

Turner testified in his deposition that Finley never told him that

Joyner had made any complaints of racial discrimination. Their

testimony was unrefuted. Joyner presented no evidence that any-

one had ever informed Chief Turner of Joyner’s 2008 complaint.

None.

Joyner urges us not to credit Chief Turner’s unrefuted, “self-

serving testimony” that he didn’t know Joyner had complained

about discrimination. Joyner argues that we should instead infer

Turner knew about Joyner’s complaints because Finley knew

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22-13728 Opinion of the Court 23

about them, and Joyner considers it “obvious[]” that Finley was at-

tempting to suppress allegations of racial discrimination on

Turner’s behalf. But Joyner’s judgment about what is obvious is

not evidence.

And we have held that the fact sworn statements are self-

serving does not permit us to disregard them at the summary judg-

ment stage. Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253

(11th Cir. 2013) (“To be sure, Feliciano’s sworn statements are self-

serving, but that alone does not permit us to disregard them at the

summary judgment stage.”); see also id. at 1246 (“As Logan Bleck-

ley, one of Georgia’s greatest judges, explained more than a cen-

tury ago: ‘Interest and truth may go together.’”).

Alternatively, in Joyner’s view, Turner “could have found

out about Joyner’s complaint [alleging there was racial discrimina-

tion] from OPS, Lt. Lyle, or a number of other sources.” But what

could have happened is not evidence that creates a genuine issue of

fact about what did happen; it’s speculation, conjecture, and wish-

ful thinking that doesn’t stand a chance against unrefuted testi-

mony going the other way. See Cordoba v. Dillard’s, Inc., 419 F.3d

1169, 1181 (11th Cir. 2005) (“Speculation does not create a genuine

issue of fact; instead, it creates a false issue, the demolition of which

is a primary goal of summary judgment. . . . [S]ummary judgment

was appropriate because there was no evidence that the decision-

maker was aware of the plaintiff’s [protected status].”) (quotation

marks omitted); Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d

1287, 1294 (11th Cir. 2013) (explaining that on summary judgment,

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24 Opinion of the Court 22-13728

“[a]ll reasonable inferences arising from the undisputed facts

should be made in favor of the nonmovant, but an inference based

on speculation and conjecture is not reasonable”) (quotation marks

omitted).

After the City presented evidence in the form of sworn tes-

timony from Turner that he was not told Joyner had reported alle-

gations of racial discrimination, the burden shifted to Joyner to

“come forward with sufficient evidence to rebut this showing,”

which required “relevant and admissible evidence,” not mere “con-

clusory allegations.” Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir.

1991). Because Joyner didn’t do that he failed to meet his burden

of presenting evidence to rebut the defendants’ evidence, which

entitled the defendants to summary judgment. See Brungart v. Bell-

South Telecomms., Inc., 231 F.3d 791, 800 (11th Cir. 2000) (affirming

the grant of summary judgment to an employer on a retaliation

claim because “the evidence [was] unrefuted that . . . the decision

maker[] did not know” the employee had engaged in protected ac-

tivity, so the employee “failed to create a genuine issue of fact as to

a causal connection between” the protected activity and the ad-

verse action). That is enough to defeat a Title VII retaliation claim.

See McCann, 526 F.3d at 1376; Goldsmith, 996 F.2d at 1163.

Sometimes a “close temporal proximity” between the pro-

tected conduct and the adverse action is enough to bolster a causal

link between the two. See McCann, 526 F.3d at 1376 (quotation

marks omitted) (concluding that an employee made out a prima

facie case where five days passed between the employer’s receipt

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22-13728 Opinion of the Court 25

of the employee’s grievance and the retaliation). But the proximity

here is not even close to close. More than six years –– over 2,500

days –– passed between Joyner’s complaint about racial discrimina-

tion in February 2008 and Chief Turner’s decision not to promote

him to Captain in December 2014. Nothing in the record allows us

to infer that those two distantly spaced events were in any way re-

lated.

Not giving up easily, Joyner argues that he suffered “a pat-

tern of antagonism” following his protected conduct in 2008 that

bridges the six-year delay between his protected conduct and the

retaliation he alleges. He points to: (1) Major Finley’s angry re-

sponse in 2008 when he was told about the accusations of racial

discrimination; (2) Finley’s act of changing Joyner’s schedule to pa-

trol night watch 14 days after Joyner instigated an OPS investiga-

tion into the complaints of racial discrimination in February–

March of 2008; (3) Lyle’s statement to Joyner that Finley would

“never forget” Joyner’s complaint (February 2008); and (4) the

City’s failure to promote Joyner over the next several years. The

first three of those events involve Finley who was not the deci-

sionmaker, instead of Chief Turner who was. And all three of

those events occurred in early 2008, so there’s still a six-year gap.

The three events cannot support an inference that Joyner suffered

discrimination six years later, when he was not promoted to Cap-

tain based on a choice made by someone other than Finley.

Nor does the fact that the City did not promote Joyner dur-

ing that six-year period indicate a long simmering resentment over

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26 Opinion of the Court 22-13728

his 2008 complaint. Joyner has failed to identify any particular po-

sitions in specific zones to which he should have been promoted at

any particular times during those six years or any position he re-

quested to be considered for. And his theory of simmering resent-

ment against him is contradicted by the fact that Chief Turner gave

him the opportunity to lead an elite unit — the fugitive squad —

between 2012 and 2014. Turner put Joyner in that position because

Turner believed at that time Joyner was “on the right track” and he

wanted to give Joyner an opportunity to prove himself. He didn’t

prove himself, at least not in a positive way. Joyner’s argument does

not deal with the fact that he had multiple performance issues dur-

ing those six years, see supra at 4–6, which runs counter to any ar-

gument that he deserved to be promoted.

Joyner relies on two decisions from our Court where em-

ployees’ retaliation claims survived summary judgment despite

multi-month temporal gaps between protected conduct and retali-

atory act. Instead of helping him, those two decisions highlight

why the necessary causal link is lacking in his own case.

In one of those cases, Simmons v. Camden County Board of Ed-

ucation, 757 F.2d 1187 (11th Cir. 1985), high school teachers sued

their Board of Education, alleging that they were fired in retaliation

for filing complaints of discrimination. Id. at 1188. Their discrim-

ination complaints were filed the summer before their February

terminations. Id. at 1189. We held that the plaintiffs had made out

a prima facie Title VII retaliation case because of what the deci-

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22-13728 Opinion of the Court 27

sionmaker had done during those eight months. He had made “re-

marks . . . demonstrating his displeasure” with the investigation

that resulted from their complaints and he had commented that he

“associate[d]” one of the plaintiffs with the investigation. Id. That

was enough to present a genuine issue of fact about whether the

plaintiffs’ complaints were a cause of the adverse action.

Three factors distinguish the Simmons case from this one.

First, eight months is not 82 months (February 2008 to December

2014). Second, not only did Chief Turner not make any remarks

about the protected conduct during that time, the unrefuted evi-

dence is that he did not even know about it. Third, unlike the de-

cisionmaker in Simmons, during the period between protected con-

duct and alleged retaliation Turner gave Joyner the opportunity to

prove himself. Because of those differences, Simmons is readily dis-

tinguishable from this case.

Joyner also points to our decision in Stanley v. City of Dalton,

219 F.3d 1280 (11th Cir. 2000). There we concluded that an officer’s

First Amendment retaliation claim survived summary judgment

despite “an almost four year gap between his protected speech and

his termination.” Id. at 1291. But the plaintiff in Stanley presented

evidence of ongoing unfair treatment during those four years, in-

cluding being “confronted . . . about his [protected] statements,”

“transferred” against his will, and “reprimanded.” Id. at 1292.

Joyner has failed to show that he suffered any similar mistreatment

during the six-year gap in his case. See supra at 4–6.

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28 Opinion of the Court 22-13728

A six-year gap without any alleged mistreatment during that

time is not a four-year gap with discriminatory treatment during

the time. We noted in Stanley that the almost four-year gap in that

case “arguably defeat[ed] causation,” and thought it was “a close

call” whether the plaintiff had presented enough evidence to create

a genuine dispute on causation. 219 F.3d at 1291–92. By contrast,

the six-year gap free of discriminatory acts in this case does not

present a close call, or even a close call about whether there is a

close call. There isn’t. Because Joyner has failed to show a genuine

issue of fact about whether there was a causal connection between

his protected activity in 2008 and his not getting a promotion in

2014, we affirm the grant of summary judgment to the City. See

Crawford, 529 F.3d at 970.

2. The Grant of Summary Judgment on the

First Amendment Retaliation Claim

When an official asserts a qualified immunity defense, and

it’s established, as it is here, that he was acting within the scope of

his discretionary authority, the plaintiff must make two showings.

See Acosta v. Miami-Dade Cnty., 97 F.4th 1233, 1239 (11th Cir. 2024).

One is that the official “violated a statutory or constitutional right”

and the other is “that the right was clearly established at the time

of the challenged conduct.” Id. (quotation marks omitted). We’re

free to address “the merits and clearly-established prongs in either

order, and an official is entitled to qualified immunity if the plaintiff

fails to establish either.” Id. (quotation marks omitted); see also

Huebner v. Bradshaw, 935 F.3d 1183, 1187 (11th Cir. 2019) (“We may

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22-13728 Opinion of the Court 29

address the two parts in either order.”); see also Pearson v. Callahan,

555 U.S. 223, 236–42 (2009); Jarrard v. Sheriff of Polk Cnty., 115 F.4th

1306, 1323 (11th Cir. 2024); Piazza v. Jefferson Cnty., 923 F.3d 947,

951 (11th Cir. 2019); Gaines v. Wardynski, 871 F.3d 1203, 1208 (11th

Cir. 2017). We will start with the merits.

a. The Claim on the Merits

Joyner’s First Amendment retaliation claim, procedurally

enabled by 42 U.S.C. § 1983, is against Major Hobbs and Chief

Turner. It alleges that their decision to no longer allow Joyner to

work a flexible schedule was made in retaliation for his reports to

the FBI and OPS about ticket fixing.3

To establish a First Amendment retaliation claim, a plaintiff

must “demonstrate that the asserted right is protected by the Con-

stitution and that he . . . suffered an adverse employment action for

exercising the right.” Akins v. Fulton Cnty., 420 F.3d 1293, 1300 (11th

Cir. 2005) (quotation marks omitted). There is no dispute that

Joyner’s conduct in filing a report with the FBI and OPS alleging

that Hobbs and Turner engaged in ticket fixing is protected by the

First Amendment. Nor is there any dispute that a week after he

filed that report the privilege of working flextime was taken away

3 Neither Hobbs nor Turner has argued that we should treat them dif-

ferently for purposes of assessing Joyner’s First Amendment claim. Hobbs

gave the order to put Joyner on a fixed schedule. Turner testified that he was

aware that Hobbs was doing that. He did nothing to prevent it. Turner does

not argue that he wasn’t involved in the decision to remove Joyner from a

flextime schedule. He and Hobbs travel together on this issue.

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30 Opinion of the Court 22-13728

from him, requiring him to work a fixed-hours schedule. The ques-

tion is whether Joyner’s loss of a flextime schedule was material for

retaliation purposes.

Built into the adverse action element of an anti-retaliation

claim is a requirement of injury or harm. See Burlington Northern

& Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) (holding that Title

VII’s anti-retaliation provision “protects an individual not from all

retaliation, but from retaliation that produces an injury or harm”).

The Supreme Court has explained that, “We speak of material ad-

versity because we believe it is important to separate significant

from trivial harms.” Id. at 68; see also id. at 69–70 (“By focusing on

the materiality of the challenged action and the perspective of a

reasonable person in the plaintiff’s position, we believe this stand-

ard will screen out trivial conduct while effectively capturing those

acts that are likely to dissuade employees from complaining or as-

4

sisting in complaints about discrimination.”).

That makes sense not only in Title VII retaliation cases but

also in First Amendment retaliation cases like this one because the

purpose of all prohibitions against retaliation is to prevent those

4

One other point: to the extent that First Amendment retaliation

claims have an “important condition of employment” requirement but Title

VII claims don’t, that does not matter here. It doesn’t matter because the loss

of flextime, or viewed from a different direction, the imposition of a fixed

schedule, can involve an important condition of employment. And here it

does, as we explain in the text discussing the materiality of the change to an

employee in Joyner’s circumstances. See infra at 34–40.

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22-13728 Opinion of the Court 31

who would engage in protected conduct or speech from being de-

terred, dissuaded, or chilled from doing so by the fear of reprisals.

Their purpose is not to get the judiciary bogged down in ref-

ereeing workplace squabbles involving “those petty slights or mi-

nor annoyances that often take place at work and that all employees

experience.” Burlington Northern, 548 U.S. at 68; See Akins, 420 F.3d

at 1302 (rejecting First Amendment claim to the extent it was based

on an employer’s action that did not “rise to that level of substan-

tiality required by our caselaw”); Stavropoulos v. Firestone, 361 F.3d

610, 621 (11th Cir. 2004) (concluding that the asserted employer

action was “not substantial enough to be actionable” under the

First Amendment), abrogated on other grounds by Burlington Northern,

548 U.S. 53; see also Kelly v. Omaha Hous. Auth., 721 F.3d 560, 562

(8th Cir. 2013) (“Reviewing whether an adverse employment ac-

tion occurred [in support of a First Amendment retaliation claim],

a court must distinguish petty slights or minor annoyances from a

material change in the conditions or terms of employment.”) (quo-

tation marks and citations omitted); Wrobel v. Cnty. of Erie, 692 F.3d

22, 31 (2d Cir. 2012) (“[D]e minimis slights and insults do not

amount to retaliation. It would trivialize the First Amendment to

hold that harassment for exercising the right of free speech was al-

ways actionable no matter how unlikely to deter a person of ordi-

nary firmness from that exercise.”) (quotation marks and citation

omitted).

The First Amendment and Title VII standards for the ad-

verse action element of a retaliation claim are not always phrased

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32 Opinion of the Court 22-13728

identically. See Akins, 420 F.3d at 1301 n.2; see also Stavropoulos, 361

F.3d at 619–20. A plaintiff asserting a Title VII retaliation claim

“must show that a reasonable employee would have found the

challenged action materially adverse, which in this context means

it well might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.” Burlington Northern, 548

U.S. at 68 (quotation marks omitted). And, as we will discuss, a

public employee asserting a First Amendment retaliation claim

must show that the employer’s action involved an “important con-

dition of employment” and “would likely chill the exercise of con-

stitutionally protected speech.” Akins, 420 F.3d at 1300 (quotation

marks omitted).

Notwithstanding any semantic differences, we have ob-

served that the Title VII and First Amendment standards for ad-

verse actions are “consonant.” Id. at 1301 n.2; Stavropoulos, 361

F.3d at 619. Each standard “inform[s]” the other. Akins, 420 F.3d

at 1301 n.2 (“[W]e regularly use First Amendment cases to inform

our analysis of Title VII retaliation claims.”); Stavropoulos, 361 F.3d

at 619 (“[W]e regularly draw cases applying [the requirement that

a plaintiff asserting a First Amendment retaliation claim establish

an important condition of employment] to inform our analysis of

Title VII retaliation claims.”). That is why we have cited Title VII

retaliation decisions, including Burlington Northern, when analyzing

First Amendment retaliation claims. See, e.g., Akins, 420 F.3d at

1301 n.2 (explaining why “we cite some Title VII cases to inform

our [First Amendment] analysis”); Booth v. Pasco Cnty., 757 F.3d

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22-13728 Opinion of the Court 33

1198, 1212 (11th Cir. 2014) (citing Burlington Northern and recogniz-

ing the similar purpose of Title VII and First Amendment anti-re-

taliation principles). And why we are doing it here.

Other circuits have done the same. See Zelnik v. Fashion Inst.

of Tech., 464 F.3d 217, 227 (2d Cir. 2006) (“Our standard for First

Amendment retaliation claims has always been the equivalent to

the standard set forth in Burlington Northern.”); Feminist Majority

Found. v. Hurley, 911 F.3d 674, 697 n.12 (4th Cir. 2018) (“The stand-

ard for proving a materially adverse action in the Title VII retalia-

tion context . . . is similar to the standard for demonstrating an ad-

verse action in the First Amendment retaliation context.”) (citing

Burlington Northern, 548 U.S. at 68); Couch v. Bd. of Trs. of the Mem’l

Hosp. of Carbon Cnty., 587 F.3d 1223, 1237–38 (10th Cir. 2009) (“The

test in Burlington Northern is also consonant with our First Amend-

ment employment retaliation cases. . . . Additionally, the test in

Burlington Northern is analogous to the standard articulated by sev-

eral other circuits in the First Amendment context.”).

We have recognized that “as a matter of law, important con-

ditions of employment include discharges, demotions, refusals to

hire or promote, and reprimands,” as well as “any other conduct

that alters the employee’s compensation, terms, conditions, or priv-

ileges of employment.” Akins, 420 F.3d at 1300 (emphasis added)

(quotation marks omitted). Any of that type can satisfy the adverse

action element if they are material. The most relevant here is “priv-

ileges of employment.”

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34 Opinion of the Court 22-13728

It is undisputed that for more than a decade, Joyner had used

his flextime schedule to work a second job with a private security

company, which supplemented his income. Not having a fixed

schedule of hours had also enabled him to pick up his young chil-

dren (ages 5 and 9) from school, which was both a personal com-

mitment and a legal obligation under his divorce decree. The loss

of flextime prevented him from picking them up on Fridays. And

if “something came up where [he] needed to go get them” from

school, without flextime he would have to “call [his] supervisor and

take of[f ] from work and clock out and go do it.” Not only that

but the loss of his flextime privilege meant Joyner could not work

as many hours at his second job, which reduced his wages at that

job by at least two-thirds.

We believe that, for Title VII purposes at least, it is bounti-

fully clear that the type of loss Joyner suffered because his work

schedule was changed from flextime to a fixed schedule of hours

is material for materiality purposes. In discussing the difference

between minor and material employment-related changes, the

Court in Burlington Northern stated that the significance of any

given act of retaliation will often depend upon the particular cir-

cumstances. 548 U.S. at 69. The Court gave this example: “A sched-

ule change in an employee’s work schedule may make little differ-

ence to many workers, but may matter enormously to a young

mother with school-age children.” Id.

By the same token, it matters a lot to a father with school-

age young children for whom he not only felt a personal obligation

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22-13728 Opinion of the Court 35

to pick them up from school but was also legally obligated to do so

under the terms of a court decree. An “act that would be immate-

rial in some situations is material in others.” Id. (quotation marks

omitted). The loss of a privilege of employment like the one

Joyner suffered is one that would deter, dissuade, or chill a reason-

able employee in his circumstances from engaging in protected ac-

tivity. See Akins, 420 F.3d at 1300; Burlington Northern, 548 U.S. at

67–70.

The facts construed in Joyner’s favor persuaded the district

court, as they persuade us, that Turner and Hobbs violated his con-

stitutional rights. But the district court was persuaded that they

were entitled to summary judgment on qualified immunity

grounds. We are not.

b. The Qualified Immunity Defense

Although the facts viewed in Joyner’s favor show that Turner

and Hobbs violated his First Amendment rights, they would be en-

titled to qualified immunity if they were “performing discretionary

functions” (which is not disputed) and if “their conduct [did] not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Stanley, 219 F.3d

at 1285 (quotation marks omitted). The district court concluded

that their conduct didn’t, which is why it ruled that Hobbs and

Turner were entitled to qualified immunity-based summary judg-

ment on the First Amendment claim.

We recognize three ways in which a plaintiff can demon-

strate a violation of clearly established law: (1) “he can point us to

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36 Opinion of the Court 22-13728

a materially similar case that has already been decided”; (2) “he can

point us to a broader, clearly established principle that should con-

trol the novel facts of the situation”; or (3) “the conduct involved

in the case may so obviously violate the Constitution that prior

case law is unnecessary.” Echols v. Lawton, 913 F.3d 1313, 1324

(11th Cir. 2019) (alterations adopted) (quotation marks). Under

any approach, “we look for fair warning to officers that the conduct

at issue violated a constitutional right.” Gaines, 871 F.3d at 1208

(quotation marks omitted); see Hope v. Pelzer, 536 U.S. 730, 741

(2002). “The relevant, dispositive inquiry in determining whether

a right is clearly established is whether it would be clear to a rea-

sonable state official that his conduct was unlawful in the situation

he confronted.” Leslie v. Hancock Cnty. Bd. of Educ., 720 F.3d 1338,

1345 (11th Cir. 2013) (alteration adopted) (quotation marks omit-

ted) (emphasis omitted).

The broad principle of law approach applies to the particular

circumstances of this case. See Echols, 913 F.3d at 1324. At the time

of the alleged misconduct, it was clearly established that govern-

ment officials cannot lawfully strip an employee of “privileges of

[his] employment” where those privileges are important enough to

the employee that taking them away would chill his expression of

protected speech. See Akins, 420 F.3d at 1300 (quotation marks

omitted). With the facts viewed in the light most favorable to

Joyner, that’s exactly what Hobbs and Turner did by taking away

from him the privilege of his flextime benefit.

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22-13728 Opinion of the Court 37

Working a flexible schedule was a privilege that the APD ex-

tended to all officers who had reached the rank of Lieutenant.

Joyner testified in his deposition it was an APD “custom” to give

that privilege to Lieutenants. Captain Steed testified that “flex-

time” was an “informal way” to allow Lieutenants and higher-

ranked officers to “[b]alanc[e] the hours out” and work extra jobs.

One APD major explained in his deposition that Lieutenants could

“alter their hours” to work other jobs, and he said that holding an

extra job is a “privilege.”

Joyner’s use of his flextime benefit while he had it shows its

importance to police officers like him. For over twelve years he had

used flextime to work a second job for a private security company.

His supervisors knew that Joyner worked that second job on a reg-

ular schedule. They knew it was a source of additional income for

him. The loss of that privilege diminished the hours Joyner could

work at his second job and thereby reduced his income. It reduced

his total income just as a reduction in his pay at the police depart-

ment by the same amount would have. And Joyner also used flex-

time to pick up his young children from school, which was his legal

obligation under a divorce decree.

Any reasonable supervisor would know that flextime was a

“privilege[] of employment” important enough to Joyner that if he

engaged in protected speech, as he did, taking that privilege away

would chill his, and any reasonable officer’s, expression of speech

in the future. See Akins, 420 F.3d at 1300 (quotation marks omit-

ted).

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38 Opinion of the Court 22-13728

Our precedent on transfers reinforces that conclusion. Strip-

ping away a privilege held by a class of higher-ranked employees is

similar to transferring an individual to a less desirable position.

And this Court has long held that a transfer to a less desirable posi-

tion can constitute an adverse action supporting a First Amend-

ment claim. See, e.g., Cook v. Gwinnett Cnty. Sch. Dist., 414 F.3d

1313, 1316–18, 1321 (11th Cir. 2005) (affirming the denial of sum-

mary judgment to a school district on a bus driver’s First Amend-

ment retaliation claim where she was “transferred” to a new group

of drivers, meaning she lost her “team leader” position and the

“prestige and office responsibilities” that came with it); McCabe v.

Sharrett, 12 F.3d 1558, 1559, 1564 (11th Cir. 1994) (concluding that

a plaintiff employee established an adverse action on summary

judgment based on the employer police chief “transferring her

from her job as secretary to the police chief to a less desirable job”);

Waters v. Chaffin, 684 F.2d 833, 835 & n.5, 837 n.9, 840 (11th Cir.

1982) (concluding an officer who was placed “in another depart-

ment within [the same county] at an appropriately lower graded

classification” with a salary “as nearly comparable as possible” had

established a First Amendment violation; also listing authorities for

the proposition that a “transfer” can support a First Amendment

claim); Patton v. King, 544 F.2d 827, 829–30 (5th Cir. 1977) (reversing

the grant of summary judgment to an employer where there was a

genuine dispute of material fact as to whether the employee

teacher’s “reassignment” from teaching one group of students to

another group required “different skills . . . to teach each category”

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22-13728 Opinion of the Court 39

5

and whether the transition could be made “easily”). All of those

cited decisions existed before the defendants took away Joyner’s

flextime benefit.

Although Joyner’s supervisors did not reduce the salary he

received from the APD, they did reduce the total amount of the

salaries he received from the APD and his outside employer and in

that way reduced his total income. Money is fungible and total in-

come is what pays the bills. To argue that total income from total

employment does not count when measuring adverse action is to

argue against the basic economics of working life.

The decision to strip Joyner of the privilege of working flex-

time effectively reduced his total income because it resulted in a

reduction of hours, and hence a reduction of income, from his sec-

ond job. We have long held that “if an employer’s conduct nega-

tively affects an employee’s salary” and “would likely chill the exer-

cise of constitutionally protected speech,” it is an adverse action for

purposes of a First Amendment retaliation claim. And that is true

whether the negative effect is directly or indirectly caused by the

employer’s conduct. See Akins, 420 F.3d at 1300; see also Cook, 414

F.3d at 1318 (concluding plaintiff’s loss of a position “which had

guaranteed her forty hours of work per week” was an adverse ac-

tion where she lost that guaranteed number of hours and with it

5

Decisions by the former Fifth Circuit handed down before October

1, 1981, are binding on this Court. Bonner v. City of Prichard, 661 F.2d 1206,

1207 (11th Cir. 1981) (en banc).

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40 Opinion of the Court 22-13728

the guarantee she could earn the same amount of money); Walker

v. Schwalbe, 112 F.3d 1127, 1130–31 (11th Cir. 1997) (holding that a

salary reduction along with a demotion was an adverse action);

McCabe, 12 F.3d at 1564 (concluding that a transfer to another posi-

tion was an adverse action where the plaintiff lost some “eligibility

for salary increases” although “her salary ha[d] not decreased”).

Even though Joyner’s employer did not directly reduce his APD sal-

ary, the loss of flextime was an action that would likely chill his

speech because it had the materially adverse effect of reducing the

total of his salaries. See Crawford, 529 F.3d at 973 (“Under the hold-

ing of Burlington, the type of employer conduct considered action-

able has been broadened from that which adversely affects the

plaintiff’s conditions of employment or employment status to that

which has a materially adverse effect on the plaintiff, irrespective of

whether it is employment or workplace-related.”). A reduction in

total income is a reduction in total income, and that is clearly ad-

verse.

When they revoked his flextime benefit, Joyner’s supervisors

knew he worked a second job, which was an additional source of

income for him, and that without the flextime benefit at the APD,

the hours he worked at that second job and the added income that

came with it would be reduced. Given these circumstances, Bur-

lington Northern, 548 U.S. at 68, and our precedent, every reasonable

official standing in the shoes of Turner and Hobbs would know

that taking away Joyner’s flextime privilege would “alter[] . . . priv-

ileges of [his] employment” and “would likely chill the exercise of

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22-13728 Opinion of the Court 41

[his] constitutionally protected speech.” Akins, 420 F.3d at 1300

(quotation marks omitted).

In another argument, Hobbs and Turner contend they are

entitled to qualified immunity because they removed Joyner’s flex-

time — at least in part — for lawful reasons. See Foy v. Holston, 94

F.3d 1528, 1535 (11th Cir. 1996) (holding that a “defendant is enti-

tled to [qualified] immunity” under a clearly-established law analy-

sis “[w]here the facts assumed for summary judgment purposes . . .

show mixed motives (lawful and unlawful motivations)”); Stanley,

219 F.3d at 1296 (“A defendant is entitled to qualified immunity un-

der the Foy rationale only where, among other things, the record

indisputably establishes that the defendant in fact was motivated,

at least in part, by lawful considerations.”). And, they say the evi-

dence shows they would have made the same decision even absent

Joyner’s protected speech. See Harris v. Shelby Cnty. Bd. of Educ., 99

F.3d 1078, 1086 (11th Cir. 1996) (concluding there was insufficient

evidence to support a jury verdict in favor of a plaintiff on a First

Amendment claim where the defendant officials “presented over-

whelming evidence” that they would have taken the same action

“even in the absence of [the plaintiff’s] speech”).

But the evidence construed in the light most favorable to

Joyner, as it must be at the summary judgment stage, would allow

a jury to find that Hobbs and Turner took away Joyner’s flextime

privilege entirely for an unlawful, retaliatory purpose. See supra at

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42 Opinion of the Court 22-13728

34–37. They can, of course, attempt to establish at trial that those

6

are not the actual facts.

3. The Georgia Whistleblower Act Retaliation Claim

Joyner’s Georgia Whistleblower Act claim relies on the

same theory as his First Amendment claim: that the removal of his

flextime benefits was retaliation for his filing a report with the OPS

and FBI. The Whistleblower Act claim is against the City, not

Turner and Hobbs. And it has different elements from the First

Amendment claim.

To get past summary judgment with a Georgia Whistle-

blower claim a plaintiff must create a genuine issue of material fact

that he reported or disclosed “a violation of or noncompliance with

a law, rule, or regulation to either a supervisor or government

agency.” Ga. Code Ann. § 45-1-4(d)(2). The statute defines “law,

rule, or regulation” as “any federal, state, or local statute or ordi-

nance or any rule or regulation adopted according to any federal,

state, or local statute or ordinance.” Id. § 45-1-4(a)(2).

6

Turner and Hobbs may still assert a qualified immunity case at trial,

in which case the district court should “use special verdicts or written inter-

rogatories to the jury to resolve disputed facts [relevant to] . . . the qualified-

immunity question.” Cottrell v. Caldwell, 85 F.3d 1480, 1487 (11th Cir. 1996)

(quotation marks omitted); see also Butler v. Smith, 85 F.4th 1102, 1118 n.6 (11th

Cir. 2023) (“Of course, [the defendant] can raise qualified immunity at trial,

urge the jury to view the record as she has framed it, seek special interrogato-

ries to resolve the historical facts underlying her immunity argument, and

then resubmit the issue to the district court for decision.”).

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22-13728 Opinion of the Court 43

If the alleged misconduct reported by the employee is not a

violation of or noncompliance with “a law, rule, or regulation” as

defined in the statute, the employee’s claim fails. For example, in

Edmonds v. Bd. of Regents of the Univ. Sys. of Ga., 689 S.E.2d 352 (Ga.

Ct. App. 2009), the Georgia Court of Appeals concluded that uni-

versity-associated employers were entitled to judgment as a matter

of law on an employee’s claim under the Whistleblower Act that

the university’s laboratory failed to “adhere to accepted ‘biosafety

rules.’” Id. at 357, disapproved of on other grounds by Wolfe v. Bds. of

Regents of the Univ. Sys. of Ga., 794 S.E.2d 85, 92 n.5 (Ga. 2016). That

was not enough to state a claim because an accepted biosafety rule

is not “a law, rule, or regulation” under the Act. See id.

The City argues that Joyner’s complaint to the Office of Pro-

fessional Standards about alleged ticket fixing did not involve the

violation of a “law, rule, or regulation.” Joyner stresses that his

“complaint was about [Major] Hobbs unlawfully threatening [Of-

ficer] Coxe if he did not change the tickets or ‘take them back.’”

But Joyner’s briefs to the district court and this Court do not specify

which law, rule, or regulation doing that allegedly violated. Nor

does his complaint. Nor does his amended complaint. The police

department’s memorandum summarizing Joyner’s OPS complaint

does not indicate that Joyner alleged the violation of any specific

rule, regulation, or law, nor does it indicate that he explicitly ac-

cused anyone of doing anything “illegal” or “unlawful.”

During his deposition, Joyner discussed his call to the FBI,

but he never identified any relevant rule, regulation, or law that was

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44 Opinion of the Court 22-13728

allegedly violated. He acknowledged there is nothing “improper

or illegal” about changing a traffic citation to a warning, which is

within the discretion of the officer who wrote the citation. And he

admitted that it wasn’t “improper” for a superior to ask an officer

to change a traffic citation to a warning.

As in Edmonds, Joyner’s failure to specify the law, rule, or

regulation that was allegedly violated is fatal to his claim. 689

S.E.2d at 357. We affirm the grant of summary judgment to the

City on Joyner’s Whistleblower Act claim.

B. Joyner’s Challenge to Rulings Made in Connection

With the Trial of the Title VII Discrimination Claim

As we’ve stated, the only claim that went to trial was Joyner’s

Title VII racial discrimination claim. He lost a jury verdict on it,

and the court entered judgment against him. Attempting to have

that part of the judgment reversed, Joyner raises four issues: (1)

whether the district court abused its discretion in denying in part

his motion to amend the complaint; (2) whether the court abused

its discretion in its response to a request from the jury; (3) whether

the jury verdict form accurately reflected the elements of the claim;

and (4) whether Joyner is entitled to judgment as a matter of law

in his favor on the claim.

1. Denial in Part of the Motion to Amend the Complaint

At trial, after presenting his evidence, Joyner moved under

Rule 15 to amend his complaint to add two claims: an equal pro-

tection claim and a 42 U.S.C. § 1981 claim. The court allowed

Joyner to add the equal protection claim, but not the § 1981 claim.

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22-13728 Opinion of the Court 45

Joyner considers it “mysterious[]” that the district court allowed

him to add the first claim but not the second. He argues that “the

direct and circumstantial evidence which supported adding an

equal protection claim, without question supported adding said

Section 1981 claim.” In particular, he emphasizes Chief Turner’s

testimony, which he views as “direct evidence” of racial discrimi-

nation.

Under Rule 15, “[w]hen an issue not raised by the pleadings

is tried by the parties’ express or implied consent, it must be treated

in all respects as if raised in the pleadings.” Fed. R. Civ. P. 15(b)(2).

And “[a] party may move — at any time, even after judgment — to

amend the pleadings to conform them to the evidence and to raise

an unpleaded issue.” Id. “[I]mplied consent under Rule 15(b) will

not be found if the defendant will be prejudiced; that is, if the de-

fendant had no notice of the new issue, if the defendant could have

offered additional evidence in defense, or if the defendant in some

other way was denied a fair opportunity to defend.” Cioffe v. Morris,

676 F.2d 539, 541–42 (11th Cir. 1982).

When the trial started, the only claim to be tried was

Joyner’s claim for racial discrimination under Title VII. Discrimi-

nation claims under Title VII and 42 U.S.C. § 1981 “have the same

requirements of proof and use the same analytical framework.”

Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1256–57 (11th Cir.

2012) (quotation marks omitted); see also Lewis v. City of Union City,

918 F.3d 1213, 1220 n.5 (11th Cir. 2019) (en banc) (applying the

“same analysis” to Title VII and § 1981 discrimination claims).

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46 Opinion of the Court 22-13728

But “[a] § 1981 claim differs in two relevant ways from a Ti-

tle VII claim — there is no cap on damages and the causation stand-

ards are higher.” Tynes v. Fla. Dep’t of Juv. Just., 88 F.4th 939, 943

(11th Cir. 2023); see also Comcast Corp. v. Nat’l Ass’n of Afr. Am.-

Owned Media, 589 U.S. 327, 337–41 (2020) (explaining that a Title

VII plaintiff can prevail by “show[ing] that discrimination was even

a motivating factor,” while a § 1981 plaintiff must show “but for”

causation).

The City insists it “did not expressly or impliedly agree to try

a Section 1981 claim” and would be prejudiced by the mid-trial ad-

dition of that claim. Noting that § 1981 has no damages cap, the

City asserts it would have been “more aggressive” on the issue of

damages if it had known that § 1981 was at issue. And the City

points out that by the time Joyner made his Rule 15 motion, Horne,

Joyner, and Turner had already testified.

We agree with the City that it would have been prejudiced

by the mid-trial addition of a claim with a new causation standard

and no damages cap after key witnesses had already testified. For

that reason, the district court did not abuse its discretion in denying

Joyner’s Rule 15 motion. See Cioffe, 676 F.2d at 541–42.

Not only that, but Joyner also loses on the Rule 15 issue for

another reason: the verdict against him on the Title VII discrimina-

tion claim dooms his § 1981 claim. The jury specifically found that

the City had not denied Joyner a promotion to Captain in 2014, as

his complaint had alleged. See supra at 19. We are affirming that

verdict. Given that Joyner was not denied the promotion, he cannot

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22-13728 Opinion of the Court 47

have been denied it on racial discrimination grounds. Especially

not since the causation standard for a § 1981 claim is more difficult

for a plaintiff to meet than the causation standard for a Title VII

claim. See Comcast, 589 U.S. at 337–41; Tynes, 88 F.4th at 943. Joyner

has not shown (and has barely made any effort to show) that the

district court abused its discretion in denying his motion to amend

his pleadings. 7 It didn’t.

2. Response to the Jury’s Request

During closing argument, Halima Horton White, who was

counsel representing the City of Atlanta, compared Chief Turner’s

power to appoint Captains to the president’s power to nominate

Supreme Court justices. She said, “Let’s talk a little bit about this

practice,” referring to Turner’s admitted practice of taking race

into account when he appointed Captains. “You know, if he has

that practice, he ain’t alone.” She went on to tell the jury: “[W]hen

7 Joyner’s briefs to this Court do not address any of the City’s argu-

ments about why his motion to amend the pleadings was properly denied. He

merely asserts that the evidence for his Title VII claim “supports” a § 1981

claim. He does not discuss the City’s point that it would have been prejudiced

by the belated addition of a new claim. And he does not discuss how the ver-

dict on his Title VII discrimination claim affects his § 1981 claim. We could

hold that Joyner has abandoned these issues. See Sapuppo v. Allstate Floridian

Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“[A]n appellant abandons a claim

when he either makes only passing references to it or raises it in a perfunctory

manner without supporting arguments and authority.”). But since there are

two other good reasons to affirm the district court’s denial of his motion to

amend the pleadings, we will leave it at that.

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48 Opinion of the Court 22-13728

they don’t have diverse leadership in these government organiza-

tions, public confidence is not going to be there. . . . That is why

George H.W. Bush nominated Thurgood Marshall to replace Clar-

ence Thomas on the Supreme Court. First black Supreme Court

Justice replaced by a black Supreme Court Justice.” (Counsel’s

statement, probably inadvertently, flipped what she meant to say

about who was nominated to replace whom, but the point of it was

nonetheless clear.)

In this appeal the City, whose lead counsel is Ms. White, in-

sists that her remarks were “not likening Chief Turner’s appoint-

ment authority to the President’s appointment authority.” But that

is exactly what her “he ain’t alone” remarks did. Otherwise, what

was the point of the statement? The strong implication of her

statement was that, if Turner did make appointments based on

race, he did only what others have done, and that implication was

offered in the hope that the jury could be persuaded that it was

somehow excusable for Turner to base employment decisions on

race — just like it would be for a president to consider race in

choosing who to nominate to fill a Supreme Court vacancy.

Of course, as counsel well knew, the Constitution expressly

vests in the president the power to “nominate, and by and with the

Advice and Consent of the Senate, . . . appoint . . . Judges of the

supreme Court.” U.S. Const. art. II, § 2, cl. 2. Chief Turner is not

president. His authority to promote lieutenants to captains in the

Atlanta Police Department comes from the City Code, not from

the United States Constitution. Counsel was well aware that in

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22-13728 Opinion of the Court 49

making promotion decisions Chief Turner is subject to Title VII’s

prohibition against discriminating on the basis of race. And under

Title VII, the City can be called to account in damages for any de-

cision of his to discriminate in promotions based on race. See Qui

v. Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1236 (11th Cir. 2016).

Continuing her representation of the City, counsel told us

that the point of her argument to the jury was that punitive dam-

ages were improper because Chief Turner, if he did consider race

when making appointments, was “not a bad person” doing some-

thing “horrible.” The record does not support that interpretation

of her argument. In her closing argument, she did not link her im-

proper remarks to punitive damages or damages in general, or even

mention damages –– not that her remarks would have been proper

if she had done so.

It was improper for the City of Atlanta, through its lead

counsel at trial, to represent to its citizens in a Title VII action that

a Police Chief who made appointments based on race was simply

following in the footsteps of others. There isn’t a “he ain’t alone”

or “everybody does it” defense to a Title VII discrimination claim,

nor is such an assertion relevant to damages.

But while Joyner’s counsel objected to other parts of the de-

fense’s closing argument, he didn’t object to these improper re-

marks. He didn’t raise the issue as part of a request for a mistrial,

or a new trial, or as a separate basis for reversal in this appeal. The

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50 Opinion of the Court 22-13728

impropriety of the remarks comes to us only because they are re-

lated to another issue he has raised, an issue about the court’s re-

sponse to the jury’s request to see a document.

During deliberations, the jury asked to “see the City of At-

lanta Charter that grants authority to [the] Police Chief for ap-

pointments.” The jury’s request specifically referred to item num-

ber four from the stipulated facts that had been read to them dur-

ing the trial. Stipulated facts number four and number five, which

had been read to the jury during presentation of the defense case,

state:

4. From 2010 through 2016, APD’s promotion process

is set forth in the Police, Fire, and Corrections Promo-

tional Rules and Regulations, which are codified in

the City’s Code of Ordinance (“Atlanta City Code”).

5. From 2010 through the time he retired as Chief, and

per the Atlanta City Code, Chief Turner was the sole

decision-maker for appointments to the positions of

Captain or higher and himself appointed every indi-

vidual that made the rank of Captain or higher.

In response to the jury’s request, the court did not provide it

with the entire City Code. Instead, it provided the jury with the

subdivision titled “Police, Fire and Corrections Promotions.” The

“Definitions” part (Section 114-227) of that subdivision states: “Dis-

cretionary ranks means ranks . . . to which appointments can be

made at the discretion of the police chief . . . .” And Section 144-

230 states that the “rank of police captain” is “a discretionary rank.”

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22-13728 Opinion of the Court 51

Joyner’s counsel asked the court to send the jury another

part of the Code: Section 114-166, which sets forth the City’s writ-

ten “Equal Opportunity and Nondiscrimination” employment pol-

icy. He was concerned about opposing counsel’s reference during

closing argument to the president’s appointment power, and he ar-

gued that “those decisions of the President to nominate a member

of the Supreme Court are not subject to Title VII and . . . equal

opportunity laws,” while “Chief Turner is.” He “speculat[ed]” that

the jury’s question indicated it was confused by defense counsel’s

reference to the president’s appointment power. To cure that con-

fusion, counsel for Joyner requested that the jury also be sent the

part of the Code that “makes it clear that the appointment author-

ity of Chief Turner is in fact subject to Title VII and equal oppor-

tunity laws.” The court denied his request. It noted that the part

of the Code about discretionary ranks was “in evidence already,”

while the anti-discrimination policy that Joyner wanted to send the

jury would have been “new evidence” that the court didn’t want to

introduce at the deliberation stage.

In his post-trial motions under Rules 50 and 59, Joyner chal-

lenged the court’s decision not to provide more of the Code to the

jury, and the district court rejected that challenge.

Joyner contends that the district court abused its discretion

by not providing the jury with the part of the Code containing the

City’s written anti-discrimination employment policy. His counsel

colorfully argues that providing the jury with that material would

be “a cure for the evidentiary harpoon” defense counsel launched

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52 Opinion of the Court 22-13728

by “liken[ing] Turner’s appointment authority to that of the U.S

President’s authority.”

Joyner points to Broaddus v. Florida Power Corp., 145 F.3d

1283 (11th Cir. 1998). In that case we ordered a new trial on a claim

under the Age Discrimination in Employment Act (ADEA), 29

U.S.C. § 621, et seq., after the district court failed to adequately re-

spond to a jury question. See 145 F.3d at 1285, 1288. The jury heard

evidence during trial that the plaintiff “had made substantial claims

on the company’s medical policies.” Id. at 1287. That evidence

was relevant to one of the plaintiff’s other claims, but not to his

ADEA claim. See id. After the other claim was dismissed, the jury

asked the court about the “significance” of that evidence. Id. We

held in Broaddus that the question revealed that the jury was “con-

fused,” and it “should have alerted the court that the jury was fo-

cusing on a non-issue and possibly did not understand the precise

burden of proof under the ADEA for proving age discrimination.”

Id. But instead of alleviating that confusion, the district court’s re-

sponse had been to “inform[] the jury that it could give the evi-

dence in question whatever weight it deemed appropriate.” Id. at

1287–88. That was grounds for a new trial, we concluded, because

we were “left with a substantial doubt as to whether the jury was

properly guided in its deliberations.” Id. at 1288.

The cases are distinguishable. Unlike in Broaddus, in this case

there was nothing in the jury’s request to see a specific document

that indicated it was confused about how to weigh any evidence.

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22-13728 Opinion of the Court 53

As the district court explained, instead of signaling prejudicial con-

fusion, it “seem[ed] more likely that the jury, diligently surveying

the evidence, wished to review for itself an item referenced by the

parties but not otherwise introduced.”

Joyner insists that, given opposing counsel’s improper re-

marks, the jury may have thought Chief Turner was not subject to

anti-discrimination laws. But the court specifically instructed the

jury: “An employer may not discriminate against an employee be-

cause of the employee’s race . . . .” And “[a] jury is presumed to

follow its instructions.” Weeks v. Angelone, 528 U.S. 225, 234 (2000).

We have no reason to doubt that the jury did so.

Joyner also argues that the jury being sent only two pages of

the Code, without the Code’s anti-discrimination employment pol-

icy, violated the Rule of Completeness. But what the jury asked

for was the part of the Code that “grants authority to [the] Police

Chief for appointments.” And that’s exactly what the court sent

back to them. Under the Rule of Completeness, “[i]f a party intro-

duces all or part of a statement, an adverse party may require the

introduction, at that time, of any other part — or any other state-

ment — that in fairness ought to be considered at the same time.”

Fed. R. Evid. 106. Even assuming that the rule applies when a jury

asks to see a specific part of a document, we don’t think a district

court abuses its discretion by not sending the jury more of a docu-

ment than the jury asked to see, at least not when fairness does not

require it to do so. And here it doesn’t.

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54 Opinion of the Court 22-13728

As we have explained, “after introduction of part of a docu-

ment, Rule 106 does not automatically make the entire document

admissible.” United States v. Mosquera, 886 F.3d 1032, 1049 (11th

Cir. 2018) (quotation marks omitted). Instead, it allows “additional

admissions from a writing . . . when relevant and necessary to qualify,

explain, or place into context the portion already introduced.” Id. (alter-

ation adopted) (quotation marks omitted) (emphasis added).

Given that the jury only requested to see the part of the Code giv-

ing the Police Chief the power to make appointments, the part stat-

ing that the chief was subject to anti-discrimination laws was not

relevant or necessary to that request. At least not where separate

jury instructions had already instructed the jury that he was subject

to them. See id.

As we have mentioned, Joyner’s counsel did not object to

the improper remarks of opposing counsel during closing argu-

ments. He was in the courtroom, he heard the remarks, and he

could judge for himself whether they were likely to sway the jury.

He did object to some other parts of opposing counsel’s remarks,

but not to the remarks in question. And the judge clearly instructed

the jury that an employer may not discriminate against an em-

ployee based on race. The judge was there, heard the remarks, and

had a better perspective than we do about their effect. Given all of

the circumstances, the court did not abuse its discretion by not

sending the jury more of the City Code provisions than it had re-

quested, which is how the issue has been presented to us.

3. Challenge to the Verdict Form

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22-13728 Opinion of the Court 55

A mixed-motive Title VII racial discrimination claim, like

the one that went to the jury in this case, has two elements: “(1) the

defendant took an adverse employment action against the plaintiff;

and (2) a protected characteristic was a motivating factor for the

defendant’s adverse employment action.” Quigg, 814 F.3d at 1239

(alteration adopted) (quotation marks omitted). “An employee can

succeed on a mixed-motive claim by showing that illegal bias . . .

‘was a motivating factor for’ an adverse employment action, ‘even

though other factors also motivated’ the action.” Id. at 1235 (quot-

ing 42 U.S.C. § 2000e–2(m)).

These are the first two questions as they appeared on the

verdict form:

1. Do you find by a preponderance of the evidence

that Defendant the City of Atlanta denied Terry

Joyner an appointment to Captain on December 24,

2014?

2. Do you find by a preponderance of the evidence

that Plaintiff Terry Joyner’s race was a motivating fac-

tor in the City of Atlanta’s decision not to appoint

Joyner to Captain on December 24, 2014?

The jury answered “no” to the first question, so it did not reach the

second one.

Before closing argument, Joyner had objected to the first

question on the verdict form, asserting:

[I]t does not reference in any way . . . that race was a

factor in the denial of the appointment, which we

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56 Opinion of the Court 22-13728

think is the very essence of Title VII, the race discrim-

ination clause. It basically says was he denied an ap-

pointment, as though this is some sort of employ-

ment case . . . .

Counsel for the City responded that for a Title VII racial discrimi-

nation claim, “You first have to establish that there is an adverse

employment action, and then as the second factor you look at

whether race was a motivating factor in that adverse employment

action.” The court overruled Joyner’s objection, and it rejected the

same argument in his post-trial motion under Rules 50 and 59.

Joyner’s argument to us is the same one he presented to the

district court. He says that the first question on the verdict form is

“completely divorced from controlling law because the question

made zero attempt to ascertain, from the jury, the essential answer

— regarding liability — of whether the jury believed race played a

role/motivating factor in the decision [not] to appoint Joyner to the

position of Captain.” In his view, whether he would have been de-

nied an appointment to captain despite any consideration of race

is merely a defense through which the City might mitigate dam-

ages under the “same decision” rule.

The inquiry when verdict form interrogatories are chal-

lenged is whether the jury was misled, or whether the questions

“accurately reflect the law.” McNely v. Ocala Star-Banner Corp., 99

F.3d 1068, 1072 (11th Cir. 1996) (quotation marks omitted). It

wasn’t, and they do. Joyner had to prove two elements to prevail

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22-13728 Opinion of the Court 57

on this claim. See Quigg, 814 F.3d at 1239. One was that the de-

fendants denied him the promotion to captain in 2014. Id. Only if

the jury had found he was denied the promotion would it have

been called on to determine if race had been a motivating factor in

that denial. See id. Logically, if there were no denial, race cannot

have motivated the nonexistent denial. It makes no sense to ask

what motivated something to happen that did not happen.

The district court did not err in rejecting Joyner’s challenges

to the verdict form at trial.

4. Motions for Judgment as a Matter

of Law and for a New Trial

After Chief Turner testified at trial about how race factored

into his employment decisions, Joyner moved under Rule 50(a) for

judgment as a matter of law on liability for his Title VII claim. The

court denied that motion. After trial, Joyner again moved for judg-

ment as a matter of law on liability (now under Rule 50(b)) and for

a new trial on damages under Rule 59, and the court again denied

his motions.

Joyner contends before this Court that he was entitled to

judgment as a matter of law as to liability on his Title VII racial

discrimination claim. He says that Turner “testified, unambigu-

ously, . . . [that he] reserved a certain number of seats for particular

races, to the exclusion of all other races,” so to Joyner there is “zero

question” that the City had a practice of appointing officers that

was motivated at least in part by race, in violation of Title VII. See

Qui, 814 F.3d at 1236, 1240 (explaining that for liability under Title

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58 Opinion of the Court 22-13728

VII a protected category such as race must be a motivating factor

for an unlawful employment practice but need not be the only mo-

tivating factor); 42 U.S.C. § 2000e–2(m).

A party is entitled to judgment as a matter of law on an issue

when there is “no legally sufficient evidentiary basis” for a reason-

able jury to find for the nonmoving party on that issue. Cleveland

v. Home Shopping Network, Inc., 369 F.3d 1189, 1192 (11th Cir. 2004);

see Fed. R. Civ. P. 50. “Credibility determinations, the weighing of

the evidence, and the drawing of legitimate inferences from the

facts are jury functions, not those of a judge.” Cleveland, 369 F.3d

at 1193 (quoting Reeves v. Sanderson Plumbing Prods., 530 U.S. 133,

150 (2000)); see also EEOC v. Massey Yardley Chrysler Plymouth, Inc.,

117 F.3d 1244, 1250 (11th Cir. 1997) (explaining that judgment as a

matter of law should be awarded to the party bearing the burden

of proof “only when the evidence favoring [that party] is so one-

sided as to be of overwhelming effect”). As for Joyner’s motion for

a new trial under Rule 59, a court may grant such a motion “for

any reason for which a new trial has heretofore been granted in an

action at law in federal court.” Fed. R. Civ. P. 59(a)(1)(A). We re-

view the district court’s denial of Joyner’s Rule 59 motion for abuse

of discretion. EEOC v. W&O, Inc., 213 F.3d 600, 610 (11th Cir.

2000).

By focusing exclusively on his theory that Turner made an

employment decision based on race, Joyner again ignores a neces-

sary element he was required to prove to prevail under Title VII.

The district court properly denied Joyner’s motions for judgment

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22-13728 Opinion of the Court 59

as a matter of law on liability because there was a legally sufficient

basis for the jury to find that he did not suffer an adverse action.

See Quigg, 814 F.3d at 1239.

To establish an adverse employment action for a Title VII

discrimination claim, the plaintiff must either show an “ultimate

employment decision . . . such as termination, failure to hire, or de-

motion,” or demonstrate he “suffered a serious and material change

in the terms, conditions, or privileges of employment.” Crawford,

529 F.3d at 970–71 (quotation marks omitted).

When, as here, the purported adverse action is the em-

ployer’s failure to promote, relevant considerations include

whether the employee was “qualified” for the promotion but was

rejected “despite qualifications.” See Vessels v. Atlanta Indep. Sch.

Sys., 408 F.3d 763, 768 (11th Cir. 2005); see also Turlington v. Atlanta

Gas Light Co., 135 F.3d 1428, 1434 (11th Cir. 1998) (concluding that

the plaintiff had failed to make out a prima facie discrimination case

under the Age Discrimination in Employment Act of 1967,

“[b]ecause he was rejected so early in the decision making process,

[he] has failed to demonstrate his qualifications for the job”). And

where, as here, “an employer does not formally announce a posi-

tion, but rather uses informal and subjective procedures to identify

a candidate,” the trier of fact can consider whether “the employer

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60 Opinion of the Court 22-13728

had some reason to consider [the plaintiff] for the post.” See Vessels,

8

408 F.3d at 768.

There was sufficient evidence for a jury to find (as it did) that

Turner did not take an adverse employment action against Joyner

8 While Joyner is challenging a jury’s verdict, Vessels and Turlington

were decided at the summary judgment stage. See Vessels, 408 F.3d at 765; Tur-

lington, 135 F.3d at 1437. In those two cases, we applied the McDonnell Douglas

burden-shifting framework, see Vessels, 408 F.3d at 767–68; Turlington, 135 F.3d

at 1432, which requires the plaintiff to make out a prima facie case, and then

gives the defendant a chance to provide a legitimate, non-discriminatory rea-

son for its decision. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973). That framework does not apply in a mixed-motive discrimination case

like this one, where an employer can be liable even if it was partially motivated

by non-discriminatory purposes. See Qui, 814 F.3d at 1236, 1240; see also 42

U.S.C. § 2000e–2(m). Anyway, once a “case [is] fully tried on the merits,” it’s

irrelevant whether a plaintiff has made out a prima facie case; at that point, the

McDonell Douglas framework “drops from the case,” and the factual question

is whether the employer took an adverse employment action against the plain-

tiff on the basis of a protected characteristic. U.S. Postal Serv. Bd. of Governors

v. Aikens, 460 U.S. 711, 713–15 (1983); see Collado v. United Parcel Serv., Co., 419

F.3d 1143, 1151 (11th Cir. 2005) (“After the defendant has met its burden of

production by offering other legitimate reasons for its employment decision,

however, the presumption raised by the prima facie case is rebutted, and . . .

the presumption of discrimination that arose when the plaintiff made his

prima facie showing drops from the case . . . .”) (quotation marks omitted).

Vessels and Turlington provide insight on what factors a fact-finder can

consider in this mixed-motive Title VII case because, like a plaintiff making a

prima facie case for discrimination, Joyner was required to show he suffered

an adverse employment action. See Vessels, 408 F.3d at 768; Quigg, 814 F.3d at

1239. Whether Joyner met that burden is informed by whether he was quali-

fied for the job and whether the decisionmaker had reason to consider him.

See Vessels, 408 F.3d at 768.

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22-13728 Opinion of the Court 61

when he did not promote him to Captain in 2014. For one thing,

the jury heard evidence that Joyner was not qualified because of

various performance issues. He failed to appear for court when he

was subpoenaed to testify against a criminal defendant. He disap-

pointed his supervisors as the head of the fugitive squad by show-

ing up at meetings unprepared, and he was ultimately removed

from that position because of his performance. He was disciplined

for sending an unprofessional and profane email from his work

email account. He received a performance rating that Shields

(Deputy Police Chief at the time) testified was “pretty much” the

lowest evaluation that officers generally received. He gave his su-

pervisor, Major Hobbs, the impression that he was arrogant (by

preemptively refusing to run the criminal investigation division

unit in Zone 2) and that he was not managing his staff efficiently

(by reassigning all A sector officers to B sector and all B sector of-

ficers to A sector, causing a delay in response time). All of those

instances of underperformance or malperformance easily could

lead a jury to reasonably conclude that Joyner was not qualified for

promotion to Captain. See Vessels, 408 F.3d at 768; Turlington, 135

F.3d at 1434.

Not only that, but Joyner never asked to be considered for a

promotion. Chief Turner testified that open positions for Captain

were “public knowledge within the police department.” But

Joyner never reached out to Turner to discuss his interest in a

higher-ranked position. His apparent lack of interest and failure to

take the initiative to obtain a promotion contrasts with another

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62 Opinion of the Court 22-13728

Lieutenant who actively sought out and obtained a promotion to

Captain.

That other Lieutenant testified that he proactively scheduled

a meeting with Chief Turner to express his interest and go over his

resume. He did get promoted to Captain under the same order

that Joyner thinks should have resulted in him being promoted.

Given Joyner’s failure to put himself forward as a candidate, it is no

wonder that Turner testified that Joyner was “never” under consid-

eration for the promotion. Based on the evidence, a jury could ra-

tionally conclude the absence of a promotion was not an adverse

employment action. See Turlington, 135 F.3d at 1434.

Additionally, of the four open Captain positions at the end

of 2014, Turner’s testimony supported a finding that only one was

potentially “reserved” for a Black officer because the preceding of-

ficer was Black. That was the Zone 2 Captain position. But Joyner

was already in Zone 2. And Turner testified without contradiction

that he had a practice of moving new Captain appointees out of

the Zones in which they had previously been working so they

would not be supervising former peers. Joyner was aware of that

practice. So there was evidence that Joyner (for reasons independ-

ent of his race) was never under consideration for an appointment

to the one position that was potentially, under his theory of the

case, reserved for a Black officer.

The jury determined that Joyner had not been denied a Cap-

tain appointment. We cannot say that that decision had “no legally

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22-13728 Opinion of the Court 63

sufficient evidentiary basis.” Cleveland, 369 F.3d at 1192. The dis-

trict court did not err by denying Joyner’s motion for judgment as

a matter of law. And because Joyner lost on the issue of liability, it

was no abuse of discretion for the court to deny his motion for a

new trial on the issue of damages. See W&O, 213 F.3d at 610.

III. CONCLUSION

We affirm the judgment of the district court, except that we

reverse the part of it that granted summary judgment on qualified

immunity grounds for Chief Turner and Major Hobbs on the First

Amendment retaliation claim. We remand the case for further pro-

ceedings on that claim.

AFFIRMED IN PART, REVERSED IN PART, AND

REMANDED.