Barry Richardson v. Dougherty County, GA

[DO NOT PUBLISH]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 JUNE 5, 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

_________________________

(June 5, 2006)

ON PETITION FOR REHEARING

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

On May 23, 2006, Dougherty County, Georgia, filed a petition for rehearing.

We grant the petition. We vacate our previous opinion and substitute it with the

following opinion.

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.

I. BACKGROUND

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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

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

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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.

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 Sys., 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

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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).

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).

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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

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

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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).

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. Dep’t 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

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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 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

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 Dep’t, 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

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Sabbath. The record is undisputed that the Sheriff’s Office offered Richardson at

least two accommodations. In the year after Richardson requested the

accommodation until his termination, Richardson never worked on the Sabbath.

3. Disparate Treatment

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. “If 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

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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.

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—also 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

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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 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

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nondiscriminatory reason for his termination, which was sexual misconduct. We

affirm the summary judgment on that alternative ground.

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) there exists a

basis for holding the employer liable. Johnson v. Booker T. Wash. 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.

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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

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 Properly Granted Summary

Judgment on Richardson’s State Law Claims Based on

Sovereign Immunity.

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’s argument fails.

Although Richardson is correct that, under Georgia law, the purchase of liability

insurance by a county waives its sovereign immunity for certain claims, see

O.C.G.A. § 33-24-51(b), this provision applies only to claims “arising from the use

of a motor vehicle.” Gilbert v. Richardson, 452 S.E. 2d 476, 480 (Ga. 1994); see

also Woodard v. Laurens County, 456 S.E. 2d 581, 583 (Ga. 1995) (“OCGA § 33-

24-51(B) does not apply because the liability of appellees is not predicated upon

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their alleged negligent use of an insured motor vehicle.”). Because the alleged

liability of the county officials does not arise from their use of a motor vehicle,

section 33-24-51(b) does not impair their ability to assert the defense of sovereign

immunity. Woodard, 456 S.E. 2d at 583. The district court correctly granted

summary judgment based on sovereign immunity.

IV. CONCLUSION

The summary judgment against Richardson is

AFFIRMED.

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