holding plaintiff must show that a “biased recommendation” was followed and finding summary judgment appropriate where plaintiff 14 Capt. Taylor said she “probably” spoke with either Lt. Cherry or Sgt. Lee but could not recall with certainty. (Id. at 62:16–18.) She never said she might have spoken with both. failed to “present evidence that [the subordinate]’s recommendation was biased”
How later courts described this case
- holding plaintiff must show that a “biased recommendation” was followed and finding summary judgment appropriate where plaintiff 14 Capt. Taylor said she “probably” spoke with either Lt. Cherry or Sgt. Lee but could not recall with certainty. (Id. at 62:16–18.) She never said she might have spoken with both. failed to “present evidence that [the subordinate]’s recommendation was biased”
- employing Staub’s cat’s-paw analysis in a First Amendment retaliation case
- declining to apply cat’s paw to municipal liability
Written by the judges who cited it.
The opinion
Case: 14-13835 Date Filed: 06/04/2015 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13835
Non-Argument Calendar
________________________
D.C. Docket No. 2:13-cv-00244-WS-M
MORRIS POLION,
Plaintiff-Appellant,
versus
THE CITY OF GREENSBORO,
CHIEF WILLIE HUDSON,
MICHAEL HAMILTON,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(June 4, 2015)
Before HULL, JORDAN and JILL PRYOR, Circuit Judges.
PER CURIAM:
Case: 14-13835 Date Filed: 06/04/2015 Page: 2 of 10
Morris Polion, a former City of Greensboro police officer, appeals the
district court’s grant of summary judgment to the City of Greensboro
(“Greensboro”), the Chief of Police Willie Hudson, and the Assistant Chief of
Police Michael Hamilton (collectively “the Defendants”) on his 42 U.S.C. § 1983
claim of First Amendment retaliation. After review, we affirm. 1
I. BACKGROUND FACTS
In the summer of 2012, Plaintiff Polion was terminated from the police
department after a citizen complained. The citizen reported that Officer Polion,
while responding to a domestic violence call at her apartment, had taken her
television and would not return it. Defendant Chief Hudson conducted an
investigation into the citizen’s complaint and recommended Plaintiff Polion’s
termination. A three-member grievance committee conducted a pre-disciplinary
hearing, at which Plaintiff Polion, Defendant Chief Hudson, and the complaining
citizen all gave evidence. Afterward, the grievance committee recommended
unanimously that Plaintiff Polion be terminated, and the city council voted
unanimously to accept the grievance committee’s recommendation.
1
We review a district court’s summary judgment ruling de novo, applying the same legal
standards as the district court. Carter v. City of Melbourne, 731 F.3d 1161, 1166 (11th Cir.
2013). Summary judgment is appropriate when, viewing the evidence in the light most favorable
to the non-moving party, “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a), (c); Carter, 731 F.3d at 1166.
2
Case: 14-13835 Date Filed: 06/04/2015 Page: 3 of 10
In his § 1983 action, Plaintiff Polion claimed he was actually terminated in
retaliation for complaints he made about Defendants Chief Hudson and Assistant
Chief Hamilton. Specifically, Polion claimed that over a two year period, he
complained to Greensboro’s mayor and two city council members about
misconduct by Hudson and Hamilton, including obstructing justice, mishandling
contraband, and using excessive force. 2
The district court granted summary judgment, concluding, inter alia, that
Plaintiff Polion had not presented evidence from which a reasonable jury could
find that Polion’s complaints about Defendants Hudson and Hamilton were a
substantial motivating factor in the decision to terminate him. More particularly,
the district court determined that Polion’s evidence did not “create a jury issue as
to whether Hudson acted with a retaliatory motive” when Hudson recommended
that Polion be terminated and testified at the pre-disciplinary hearing.
II. DISCUSSION
Although a government employer may not discharge a public employee in
retaliation for speech protected under the First Amendment, a public employee’s
free speech right is not absolute. Carter v. City of Melbourne, 731 F.3d 1161,
2
In addition to a First Amendment retaliation claim, Plaintiff Polion’s complaint also
asserted Equal Protection and Due Process claims under § 1983 and claims of outrage and
negligent supervision, training, and retention under Alabama law. The district court granted
summary judgment as to all of the state law claims and to some, but not all, of the Equal
Protection and Due Process claims. Later, Plaintiff Polion voluntarily dismissed his remaining
Equal Protection and Due Process claims with prejudice. On appeal, Polion raises no issue as to
any of these claims except his First Amendment retaliation claim.
3
Case: 14-13835 Date Filed: 06/04/2015 Page: 4 of 10
1168 (11th Cir. 2013). In evaluating a First Amendment retaliation claim, we
apply a four-part test. Moss v. City of Pembroke Pines, 782 F.3d 613, 617-18
(2015). First, as a threshold matter, we consider “whether Plaintiff’s speech was
made as a citizen and whether it implicated a matter of public concern.” Id.
(quotation marks omitted). If so, “we then weigh Plaintiff’s First Amendment
interests against the City’s interest in regulating his speech to promote the
efficiency of the public services it performs through its employees.” Id. at 618
(quotation marks omitted). These first two elements raise questions of law decided
by the court and determine “whether Plaintiff’s speech is protected by the First
Amendment.” Id. Third, we consider whether the plaintiff has shown that his
protected speech “was a substantial motivating factor in his termination.” Id. 3 “If
Plaintiff is able to make this showing, the burden shifts to the City to prove that it
would have terminated Plaintiff even in the absence of his speech.” Id. The last
two parts of the test, which address causation, are questions of fact to be resolved
by the jury unless there is no factual dispute. Id.
Here, the district court concluded, and the parties do not dispute, that Polion
was speaking as a citizen about matters of public concern when he complained
3
The third prong is sometimes formulated as “whether the employee’s speech played a
‘substantial part’ in the government’s decision” to terminate the employee. See, e.g., Carter, 731
F.3d at 1168 (equating the showing that the speech played a “substantial part” with the showing
that the speech “was a substantial motivating factor in the state’s employment decision”); Bryson
v. City of Waycross, 888 F.2d 1562, 1565-66 (11th Cir. 1989) (doing same and citing Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 576 (1977)).
4
Case: 14-13835 Date Filed: 06/04/2015 Page: 5 of 10
about Defendants Chief Hudson and Assistant Chief Hamilton and that Polion’s
First Amendment interests in complaining outweighed Greensboro’s interest in
regulating his speech. This appeal thus addresses the third prong of the analysis—
whether Polion met his burden to present evidence that his complaints about
Hudson and Hamilton were a substantial motivating factor in the decision to
terminate him.
This Court has said that “it is neither possible nor desirable to fashion a
single standard” and that instead the court must “examine the record as a whole to
ascertain whether [the employee] presented sufficient evidence for a reasonable
jury to conclude that his protected speech was a ‘substantial’ motivating factor in
the decision to terminate him.” Stanley v. City of Dalton, 219 F.3d 1280, 1291
(11th Cir. 2000) (quotation marks omitted and alteration adopted). In Stanley v.
City of Dalton, we identified several relevant factors to consider, including: (1)
whether termination closely followed the protected speech; (2) whether the
employee showed that other explanations for the termination were pretextual;
(3) whether the employer made comments connecting the termination to protected
speech; (4) whether the employer provided varied explanations for the termination;
(5) who initiated termination proceedings against the employee; (6) whether there
was evidence of management’s hostility; and (7) whether the employer had a
5
Case: 14-13835 Date Filed: 06/04/2015 Page: 6 of 10
motive to retaliate. Id. at 1291 n.20. No one factor is outcome determinative, and
the employee’s burden is not a heavy one. Id.
Here, the district court did not err in concluding that Plaintiff Polion
presented insufficient evidence to create a jury question as to whether Polion’s
complaints about Defendants Hudson and Hamilton were a substantial motivating
factor for his termination. As the district court noted, Polion did not claim that
either the grievance committee or the city council harbored any retaliatory animus
when they voted unanimously to terminate him. Instead, Polion claimed that
Defendant Hudson’s retaliatory motive for investigating Polion and recommending
his termination infected the termination process, essentially a “cat’s paw”
argument. To show causation through a cat’s paw theory, the plaintiff must at a
minimum show that the ultimate decision-maker followed a biased
recommendation. See, e.g., Staub v. Proctor Hosp., 562 U.S. 411, ___, 131 S. Ct.
1186, 1193 (2011); Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1331 (11th
Cir. 1999). Here, Polion did not present evidence that Chief Hudson’s
recommendation was biased. Rather, it is undisputed that Chief Hudson’s
recommendation was based on his investigation, which was initiated in response to
a civilian complaint and uncovered evidence substantiating that complaint.
In particular, undisputed evidence in the record established that the civilian,
after several unsuccessful months of trying to get Polion to return her television,
6
Case: 14-13835 Date Filed: 06/04/2015 Page: 7 of 10
approached Assistant Police Chief Hamilton at a ballgame “on her own” and told
him about Polion, which triggered the investigation. While Polion testified at his
deposition that he believed Hudson wanted to find evidence of misconduct in order
to have Polion terminated and that Hamilton, acting as Hudson’s accomplice,
“motivated” the civilian to file the complaint against Polion, Polion offered no
admissible evidence to support these claims. 4
Furthermore, the evidence Chief Hudson uncovered when he investigated
the citizen’s complaint supported Hudson’s conclusion that Polion had engaged in
the alleged misconduct and was dishonest during the investigation. Specifically, it
was undisputed that during his investigation, Chief Hudson interviewed witnesses
and gathered evidence that: (1) Polion, in contravention of police department
policy, took the citizen’s television from her apartment even though she told Polion
it belonged to her; (2) Polion had an accompanying officer move the television to
an apartment rented in his own name, where it stayed for several months despite
the citizen’s repeated requests for its return; and (3) although during the
investigation Polion claimed that another officer lived in the apartment where the
4
Polion testified to several inadmissible hearsay statements about events for which he
clearly had no personal knowledge. For example, Polion claimed that “several people in the
community” said Hudson “was going around -- he’s pretty much known for that -- going around
saying, okay, I’m getting rid of these three officers [including Polion], they’re going to be gone.”
Polion also claimed he spoke with, and obtained a statement from, the civilian’s boyfriend in the
domestic dispute and that the boyfriend said police officers had “pulled [him] out of his vehicle,
placed [him] on the ground, asking him would he file charges against [Polion]” and that the
officers “had been trying to force him to say that it was not his TV.” Polion, however, did not
submit sworn statements from any of these individuals.
7
Case: 14-13835 Date Filed: 06/04/2015 Page: 8 of 10
television was ultimately found by Chief Hudson, the other officer did not in fact
live in that apartment. Indeed, although Polion denied the citizen’s version of
events, all of the other witnesses Chief Hudson interviewed about the television
incident contradicted Polion’s version of events.
In short, as the district court explained, the evidence that Chief Hudson’s
investigation revealed was “not so flimsy as to suggest Hudson did not truly
believe [Polion’s misconduct] had occurred,” and could reasonably have motivated
an employer to terminate an employee. In fact, when the grievance committee
heard both Polion’s and the civilian’s versions of the television incident, it also
believed the civilian and not Polion. The members of the grievance committee all
also averred that they voted to recommend Polion’s termination due to his
misconduct, and Polion presented no evidence that any of the grievance committee
members was aware of Polion’s complaints.
Considering the Stanley factors, Plaintiff Polion showed that Chief Hudson,
assuming he knew of Polion’s complaints, had a possible motive to retaliate and
was the person who initiated termination proceedings. 5 But, the problem for
Polion is that Hudson was not the person who filed the underlying misconduct
5
Polion did not present any evidence that Chief Hudson knew of Polion’s particular
complaints to the mayor and city council members. Rather, Polion presented evidence that after
Hudson became Chief of Police, he held a meeting and advised police officers that he was the
person they should talk to and that they should not talk to city council members because he
would be informed of what was said. The district court concluded that this evidence created “an
issue of fact as to whether Hudson was aware of the plaintiff’s complaints about him.”
8
Case: 14-13835 Date Filed: 06/04/2015 Page: 9 of 10
complaint. And, Polion presented no evidence that the reason for investigating and
terminating Polion—his misconduct in taking the television and his dishonesty
during the resulting investigation—was pretextual or had ever varied. Nor did
Polion present evidence that city officials, including Hudson and Hamilton, made
comments connecting Polion’s termination to his complaints or showed any
hostility to Polion. Finally, Polion also failed to show temporal proximity. Polion
admitted he had been complaining about Hudson for two years before he was
terminated, and he could not recall any dates (and very few timeframes) for his
conversations with the mayor and the city council members. Under the
circumstances, Polion did not present sufficient evidence for a reasonable jury to
find that Polion’s complaints about Hudson and Hamilton were a substantial
motivating factor in his termination.
Polion points to an affidavit of the city clerk, but that affidavit does not
create a jury issue as to whether Polion’s complaints were a substantial motivating
factor for his termination. In her affidavit, the city clerk stated that Chief Hudson
first learned of the television incident on June 14, 2012 and investigated, but then
states that the city mayor gave Polion notice of intent to terminate on June 12,
2012. 6 Polion argues that the dates in the city clerk’s affidavit show that Chief
6
In the district court, the Defendants sought permission to file an amended affidavit,
explaining that the June 14, 2012 date in the original affidavit was due to a scrivener’s error and
9
Case: 14-13835 Date Filed: 06/04/2015 Page: 10 of 10
Hudson decided to terminate him before investigating, but no juror could
reasonably rely on this discrepancy because the affidavit also stated that Hudson
investigated after he learned of the television incident.
For all these reasons, the district court correctly concluded that Polion
provided insufficient evidence that his complaints were a substantial motivating
factor in the decision to terminate him and did not err in granting summary
judgment to the Defendants on Polion’s First Amendment retaliation claim. 7
AFFIRMED.
should have stated June 4, 2012. The district court denied the motion because “doing so [would]
eliminate the fact issue created by the original.”
7
Because we affirm the district court’s entry of summary judgment as to all three
Defendants on the merits of the First Amendment retaliation claim, we do not address the district
court’s alternative rulings that, even if Polion’s evidence established a constitutional violation,
the individual defendants were entitled to qualified immunity and that the City of Greensboro
could not be subject to municipal liability under a cat’s paw theory of liability.
10