The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-16370 MAY 3, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 03-00060-CV-WLS-1
BARRY RICHARDSON,
Plaintiff-Appellant,
versus
DOUGHERTY COUNTY, GA,
OFFICE OF SHERIFF, DOUGHERTY COUNTY, GEORGIA,
JAMIL SABA, individually and in his official
capacity as Sheriff of Dougherty County, Georgia,
DOUGLAS MCGINLEY, individually and is his
official capacity as Colonel for Office of Sheriff
of Dougherty County, Georgia,
MARK SHIRLEY, individually and in his official
capacity as Major for the Office of Sheriff of
Dougherty County, Georgia,
JOHN FIELDS, individually and in his official
capacity as Captain for the Office of Sheriff
of Dougherty County, Georgia,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(May 3, 2006)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Barry Richardson appeals the summary judgment in favor of the Office of
the Sheriff for Dougherty County, Georgia, and several individual defendants in
their official and individual capacities and against Richardson’s complaint for
religious discrimination and retaliation under federal law and Georgia law, and
claims of libel, tortious interference with an employment relationship, negligent
retention, intentional infliction of emotional distress, breach of contract, and
violations of due process under Georgia law. We affirm in part and reverse and
remand in part.
I. BACKGROUND
Richardson, a Seventh Day Adventist, was employed from 1995 to 2002 as a
deputy with the Sheriff’s Office of Dougherty County. In June 2001, Richardson
advised his employer that he was a member of the Seventh Day Adventist Church
and, according to his religious beliefs, he could not work on the Sabbath, from
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sundown on Friday until sundown on Saturday. Richardson requested an
accommodation to permit him not to work on the Sabbath. Richardson submitted a
written request on July 30, 2001. On August 10, 2001, the Sheriff’s Office
provided Richardson with two alternative accommodations: Richardson could
swap shifts with other deputies or take annual leave.
In October 2001, Richardson applied for and received a position as a deputy
in Central Control. After his transfer, Richardson notified his new supervisors of
his request for religious accommodation. Richardson was again informed that he
could take annual leave or swap shifts when he was assigned to work on the
Sabbath. Richardson was also advised that other departments might be able to
offer greater flexibility to accommodate him. From June 2001 until his termination
in June 2002, Richardson did not work on the Sabbath.
In May 2002, the Sheriff’s Office became aware of allegations that several
jailors had been involved in sexual misconduct while on duty. Lillie Green, a
deputy, alleged that she had sex with Richardson and had engaged in sexual
activity with five other deputies while at work and on duty. Richardson denied the
allegations. Three of the deputies admitted the allegations.
After an investigation, during which polygraph tests were taken, the
Sheriff’s Office determined that the allegations of sexual misconduct were truthful.
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The deputies, including Richardson, were given the opportunity to resign or face
disciplinary action. All of the deputies, except Richardson, resigned.
Richardson’s supervisor then recommended that Richardson be terminated
and a personnel review hearing was held. The review board unanimously
supported the recommendation to terminate Richardson, and the Sheriff concurred.
Richardson was terminated in June 2002. Following his termination, Richardson
filed a charge of discrimination with the EEOC and received a right to sue letter.
Richardson filed suit against the Sheriff’s Office and several officials and alleged
multiple claims. The district court entered summary judgment against
Richardson’s complaint.
II. STANDARD OF REVIEW
We review the grant of summary judgment de novo. Lubetsky v. Applied
Card Systems, Inc., 296 F.3d 1301, 1304 (11th Cir. 2002). “Under this standard,
we view all facts and inferences reasonably drawn from the facts in the light most
favorable to the nonmoving party.” Id. Summary judgment is appropriate “if the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.
Civ. P. 56(c).
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III. DISCUSSION
On appeal, Richardson makes five arguments: (1) the district court erred
when it denied his motion to strike the affidavits of three witnesses because the
affidavits relied in part on polygraph test results; (2) the district court erred when it
granted summary judgment against his complaint of religious discrimination
because there was no admissible evidence to support the legitimate non-
discriminatory reason proffered by the Sheriff’s Office; (3) the district court erred
when it ignored direct evidence of discrimination; (4) the district court erred when
it granted summary judgment against his complaint of retaliation; and (5) the
district court erred when it granted summary judgment against his claims under
state law on the ground of sovereign immunity when the defendants had liability
insurance. Because Richardson does not make any argument regarding other
aspects of the summary judgment, those arguments are abandoned or waived.
Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1308 n.43
(11th Cir. 1998).
A. The Motion to Strike was Properly Denied.
Richardson argues that the district court erred when it denied his motion to
strike three affidavits filed by the Sheriff’s Office. Richardson argues that the
affiants relied on polygraph test results, which were not admissible evidence. This
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argument fails.
The affiants mentioned the results of a polygraph test not to prove the truth
of those results, but as an explanation of the investigation by the Sheriff’s Office.
The conclusion reached by the Sheriff’s Office following that investigation was the
legitimate non-discriminatory reason for Richardson’s termination proffered by the
Sheriff’s Office. The district court did not rely on the affidavits for any other
purpose.
The district court did not conclude that the allegations against Richardson
were truthful. The district court concluded that the Sheriff’s Office fired
Richardson because it believed the allegations were truthful. That conclusion was
a legitimate non-discriminatory reason.
B. The District Court Correctly Granted Summary Judgment on
Richardson’s Discrimination and Retaliation Claims.
Richardson argues that the summary judgment against his claims of religious
discrimination was erroneous because there was direct evidence of discrimination
and no admissible evidence to establish a legitimate non-discriminatory reason for
his discharge. Richardson argues several theories of discrimination, and we
address each theory. The analysis is same under both Title VII and section 1983.
See Lee v. Russell County Bd. of Educ., 684 F.2d 769, 773 (11th Cir. 1982).
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1. Direct Evidence
Richardson argues that there is direct evidence of discrimination on the basis
of three statements. First, Richardson alleges that the defendants told him they
were not going to accommodate him and that he needed to find another religion or
another job. Second, Richardson alleges that the defendants stated “You want
every Saturday off. We’re sick of this. I wish you would find another job.” Third,
Richardson alleges that he was referred to as a “preacher man,” a “minister,” and
was told he was “too preachy.” Richardson’s argument about these statements
fails.
“[D]irect evidence is ‘evidence, which if believed, proves [the] existence of
[a] fact in issue without inference or presumption.’” Akouri v. Fla. Dept. of
Transp., 408 F.3d 1338, 1347 (11th Cir. 2005) (quoting Burrell v. Bd. of Trs. of
Ga. Military Coll., 125 F.3d 1390, 1393 (11th Cir. 1997) (alteration in original).
“[W]e have defined direct evidence as evidence which reflects a discriminatory or
retaliatory attitude correlating to the discrimination or retaliation complained of by
the employee. . . . [O]nly the most blatant remarks, whose intent could mean
nothing other than to discriminate on the basis of some impermissible factor
constitute direct evidence of discrimination. If the alleged statement suggests, but
does not prove, a discriminatory motive, then it is considered circumstantial
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evidence.” Id. (internal quotation marks and citations omitted). Because the
statements about which Richardson complains allow an inference of
discrimination, but do not prove a discriminatory motive in any employment
action, the statements are circumstantial evidence.
2. Failure to Accommodate
Second, Richardson argues that the defendants discriminated against him
because they failed to accommodate him. To establish a prima facie case of
discrimination based on a failure to accommodate religious beliefs, Richardson
was required to present evidence that “(1) he had a bona fide religious belief that
conflicted with an employment requirement; (2) he informed his employer of his
belief; and (3) he was discharged for failing to comply with the conflicting
employment requirement.” Beadle v. Hillsborough County Sheriff’s Dept., 29
F.3d 589, 592 n.5 (11th Cir. 1994). If a prima facie case is established, the burden
shifts to the employer to present evidence either that it offered to accommodate the
plaintiff or that it could not reasonably accommodate him. Id. at 592.
Richardson failed to establish a prima facie case. Richardson produced no
evidence to support his contention that he was fired for his inability to work on the
Sabbath. The record is undisputed that the Sheriff’s Office offered Richardson at
least two accommodations. In the year after Richardson requested the
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accommodation until his termination, Richardson never worked on the Sabbath.
3. Disparate Treatment
Third, Richardson argues that he was treated differently than other
employees who did not request a religious accommodation. “In evaluating
disparate treatment claims supported by circumstantial evidence, we use the
framework established by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.2d 668 (1973), and Texas
Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67
L. Ed.2d 207 (1981).” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th
Cir. 2004). Under this framework, the plaintiff must first establish a prima facie
case of discrimination by presenting evidence that he was a member of a protected
class and was subjected to an adverse employment action in contrast with similarly
situated employees outside the protected class. Id. If the plaintiff establishes a
prima facie case, the employer must articulate a legitimate non-discriminatory
reason for its actions. Id. Finally, “[i]f the employer satisfies its burden by
articulating one or more reasons, then the presumption of discrimination is
rebutted, and the burden of production shifts to the plaintiff to offer evidence that
the alleged reason of the employer is a pretext for illegal discrimination.” Id.
Richardson’s claim regarding his termination fails for at least two reasons.
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First, Richardson did not establish a prima facie case of discrimination because he
did not present evidence that employees outside of his protected class were treated
more favorably than him. The deputies accused of sexual misconduct, all of whom
were outside of Richardson’s protected class, were, like Richardson, given the
option of resigning or termination. Second, the Sheriff’s Office articulated a
legitimate non-discriminatory reason for Richardson’s discharge, and Richardson
failed to offer any evidence to rebut head-on that legitimate reason. Richardson’s
argument about the accuracy of the investigation against him does not question
whether his employer actually relied on the results of that investigation to
discharge him.
Richardson’s other allegations of disparate treatment—that he was not
promoted because of religion and other employees were permitted to take time off
for school—fail. Although Richardson alleged that he was denied a promotion, for
which he was qualified, and the successful candidate for the promotion was outside
of his protected class, that evidence was not enough to establish a prima facie case.
Richardson failed to present evidence that the selected candidate was equally or
less qualified for the job. Id. at 1089. Richardson’s argument that other employees
were granted time off for school fails, because there is no evidence that the
accommodations other employees requested were comparable to the religious
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accommodation Richardson requested.
4. Retaliation
To establish a prima facie case of retaliation under Title VII, Richardson
must present evidence that he engaged in statutorily protected expression, was
subject to an adverse employment action, and that there is a causal link between the
protected expression and the adverse action. Taylor v. Runyon, 175 F.3d 861, 868
(11th Cir. 1999). If Richardson establishes a prima facie case, the Sheriff’s Office
must present a legitimate reason for its employment actions. Id. After the
Sheriff’s Office proffers a legitimate reason, Richardson must rebut that reason.
Id.
The district court concluded that, because a year passed between the time
Richardson requested an accommodation and his termination, Richardson could
not establish a causal link between his protected expression and his termination.
Because Richardson alleges that he engaged in protected expression by
complaining about discrimination as late as May 2002, we assume that he
established a prima facie case, but Richardson failed to rebut the legitimate
nondiscriminatory reason for his termination, which was sexual misconduct. We
affirm the summary judgment on that alternative ground.
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5. Hostile Work Environment
To establish a prima facie case for hostile work environment, Richardson
had to present evidence that (1) he belongs to a protected class, (2) he was subject
to unwelcome harassment, (3) the harassment was based on his religion, (4) the
harassment was sufficiently severe and pervasive to alter the terms of his
employment and create an abusive working environment, and (5) a basis for
holding the employer liable. Johnson v. Booker T. Washington Broad. Serv., Inc.,
234 F.3d 501, 508 (11th Cir. 2000). “Harassment is subjectively severe and
pervasive if the complaining employee perceives the harassment as severe and
pervasive, and harassment is objectively severe and pervasive if a reasonable
person in the plaintiff’s position would adjudge the harassment severe and
pervasive.” Id. at 509. To determine the objective severity of harassment, “courts
consider ‘the frequency of the conduct,’ ‘the severity of the conduct,’ ‘whether the
conduct is physically threatening or humiliating, or a mere offensive utterance,’
and ‘whether the conduct unreasonably interferes with the employee’s job
performance.’” Id.
Richardson alleges that he was subject to a hostile work environment
because his supervisor referred to him as “preacher man” more than fifty times and
other employees made comments regarding his religion and request for
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accommodation. The district court correctly concluded that these allegations do
not rise to the level of severe and pervasive harassment. The alleged harassment
of which Richardson complains was not objectively severe or pervasive. The
conduct was not threatening or more than an offensive utterance, and the conduct
did not interfere with Richardson’s job performance.
C. The District Court Improperly Granted Immunity to the County, Sheriff and
Deputies in Their Official Capacities on Richardson’s State Law Claims.
Richardson argues that the district court erroneously granted immunity to the
County, Sheriff and deputies in their official capacities on his state law claims
because the defendants had liability insurance. Richardson is correct. Georgia
courts have “repeatedly held that liability insurance protection purchased or created
by a governmental entity to insure against its own liability waives that entity’s
sovereign immunity.” Gilbert v. Richardson, 264 Ga. 744, 751, 452 S.E.2d 476,
482 (Ga. 1994). Because it is undisputed that the defendants have liability
insurance that would cover a judgment in this case, sovereign immunity is waived.
The summary judgment regarding Richardson’s claims against the County and its
officers, under Georgia law, is reversed. On remand, the district court may, in its
discretion, either exercise supplemental jurisdiction over Richardson’s remaining
claims, under Georgia law, or dismiss those claims without prejudice.
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IV. CONCLUSION
The summary judgment against Richardson is
AFFIRMED IN PART AND REVERSED AND REMANDED IN
PART.
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