Glenn Michael O'Neal, Jr. v. City of Hiram

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-11327

Non-Argument Calendar

____________________

GLENN MICHAEL O'NEAL, JR.,

Plaintiff-Counter Defendant-Appellant,

versus

CITY OF HIRAM,

Defendant-Counter Claimant-Appellee,

JODY PALMER,

in his individual capacity,

Defendant-Appellee.

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2 Opinion of the Court 21-11327

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 4:19-cv-00177-TWT

____________________

Before NEWSOM, LUCK, and LAGOA, Circuit Judges.

PER CURIAM:

Glenn O’Neal, a former police officer in the City of Hiram,

Georgia, appeals the magistrate judge’s evidentiary rulings and the

district court’s grant of summary judgment on his various employ-

ment claims against the City and Jody Palmer, the City Manager.

O’Neal raises several issues on appeal.

First, he argues that the magistrate judge improperly denied

his motion for leave to file a sur-reply in opposition to the Defend-

ants’ motion for summary judgment. Second, he contends that the

magistrate judge improperly sustained the Defendants’ objections

that parts of his declaration are shams. Third, he asserts that the

district court erred by granting summary judgment to the Defend-

ants on his retaliation claims brought under the Age Discrimination

in Employment Act, 29 U.S.C. §§ 621–634, the Americans with Dis-

abilities Act, 42 U.S.C. § 12131 et seq., and the Rehabilitation Act,

29 U.S.C. § 794. Fourth, he argues that the district court erred by

granting the Defendants’ motion for summary judgment on his in-

terference claim under the Family Medical Leave Act, 29 U.S.C.

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21-11327 Opinion of the Court 3

§ 2601 et seq. Finally, he contends that the district court erred by

granting summary judgment on his 42 U.S.C. § 1983 First Amend-

ment retaliation claim. After careful review, we affirm in part and

vacate and remand in part.

I

Where a party fails to timely challenge a magistrate judge’s

non-dispositive order before the district court, the party waives his

right to appeal that order. Smith v. Sch. Bd. of Orange Cnty., 487

F.3d 1361, 1365 (11th Cir. 2007) (per curiam). Our Rule 3-1 pro-

vides that a party failing to object to a magistrate judge’s findings

or recommendations contained in a report and recommendation in

accordance with 28 U.S.C. § 636(b)(1) waives the right to challenge

on appeal the district court’s order based on unobjected-to factual

and legal conclusions. 11th Cir. R. 3-1.

Federal Rule of Civil Procedure 72 provides that, for pretrial

matters that are not dispositive of a party’s claim and are referred

to a magistrate judge, the magistrate judge must conduct the re-

quired proceedings and, when appropriate, issue a written order

explaining the decision. Fed. R. Civ. P. 72(a). A party may serve

and file objections to that order within 14 days after being served

with a copy of it, and a party may not assign as error a defect in the

order not timely objected to. Id.

Here, O’Neal waived the position that the magistrate judge

improperly denied his motion to file a sur-reply by failing to timely

object to the order denying the motion. His motion was denied on

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January 19, 2021, and he objected to the denial on March 15, 2021,

which was more than 14 days later. Accordingly, we affirm as to

this issue.

II

To obtain reversal of a district court judgment that is based

on multiple, independent grounds, an appellant must show that

every stated ground for the judgment against him is incorrect.

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.

2014). When an appellant fails to show that one ground is incor-

rect, it follows that the judgment is due to be affirmed. Id. (discuss-

ing abandonment of an alternative, independent ground).

When a district court grants a motion to strike supplemental

materials submitted in response to a motion for summary judg-

ment, we review the district court’s decision de novo. Tippens v.

Celotex Corp., 805 F.2d 949, 951–55 (11th Cir. 1986). An affidavit

may be disregarded as a sham when a party has given clear answers

to unambiguous questions that negate the existence of any genuine

issue of material fact and then attempts thereafter to create such an

issue with an affidavit that merely contradicts, without explana-

tion, previously given testimony. Id. at 954.

Northern District of Georgia Civil Rule 7.1 requires a party

opposing a motion to serve a response within a certain number of

days, and states that the failure to file a response shall indicate that

there is no opposition to the motion. N.D. Ga. Civ. R. 7.1(B).

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Here, we affirm the magistrate judge’s determination that

some of O’Neal’s declarations were shams. The magistrate judge

sustained the Defendants’ objections to his declarations on two in-

dependent, alternative bases: (1) on the merits and (2) because

O’Neal failed to respond to the Defendants’ notice of objection un-

der Northern District of Georgia Civil Rule 7.1(B). O’Neal’s objec-

tions to the R&R only challenged the magistrate judge’s merits de-

termination and did not challenge this alternative finding under

Rule 7.1, so O’Neal waived that argument on appeal. O’Neal,

therefore, cannot establish that one of the magistrate judge’s alter-

native grounds for striking portions of his declaration was errone-

ous. Accordingly, we also affirm as to this issue.

III

Issues not briefed are deemed abandoned. See Timson v.

Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam).

We review a district court’s grant of summary judgment de

novo, applying the same standards applied by the district court.

Baas v. Fewless, 886 F.3d 1088, 1091 (11th Cir. 2018). Summary

judgment is proper if there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law. Id.

The moving party bears the initial burden of demonstrating the ab-

sence of a genuine dispute of material fact. Id. We view all sub-

mitted evidence in the light most favorable to the non-moving

party. Id.

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The ADA provides that no person shall discriminate against

any individual because he has opposed any act or practice made

unlawful by the ADA. 42 U.S.C. § 12203(a). The Rehabilitation

Act incorporates the anti-retaliation provision of the ADA. See 29

U.S.C. § 794(d); 42 U.S.C. § 12203(a). The ADEA prohibits retalia-

tion against employees who opposed any practice made unlawful

by the ADEA, 29 U.S.C. § 623(d), and the requirements for proving

a case of retaliation under the ADEA and ADA are the same, com-

pare Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d

1278, 1287 (11th Cir. 1997), with Hairston v. Gainesville Sun Pub.

Co., 9 F.3d 913, 919–21 (11th Cir. 1993).

Here, although O’Neal raised many retaliation claims be-

low, he objected only to the R&R’s grant of summary judgment to

the Defendants on his termination-based retaliation claims, so any

other retaliation claims premised on different adverse actions are

waived. And on his termination-based retaliation claims, he ob-

jected below and argues now only that the magistrate judge erred

by determining that those claims were administratively barred—

despite the magistrate judge’s alternative finding that his termina-

tion-based claims failed on their merits. Because the magistrate

judge’s determination of his termination-based retaliation claims

relied on alternative, independent grounds, and O’Neal waived and

forfeited his challenge to one of those grounds, the judgment is due

to be affirmed. See Sapuppo, 739 F.3d at 680.

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IV

The FMLA confers the right to take 12 weeks of job leave

because of a serious health condition that makes the employee un-

able to perform the functions of his job. 29 U.S.C. § 2612(a)(1)(D).

If an employer interferes with an employee’s FMLA rights, the em-

ployee may sue for equitable relief or money damages. White v.

Beltram Edge Tool Supply, Inc., 789 F.3d 1188, 1191 (11th Cir.

2015). This FMLA claim is called an “interference claim,” and the

plaintiff must show (1) that he was entitled to a benefit under the

FMLA and (2) that his employer denied him that benefit. Id. A

plaintiff need not allege that his employer intended to deny the

benefit. Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d

1286, 1293 (11th Cir. 2006). And the plaintiff need not show that

he suffered only a loss of income, as the FMLA provides for equita-

ble remedies. Evans v. Books-A-Million, 762 F.3d 1288, 1296 (11th

Cir. 2014). But he must show that he was prejudiced by the viola-

tion in some way. Id. at 1295.

Here, O’Neal did not show that his employer denied him an

FMLA benefit because he voluntarily participated in the third-party

investigation of his grievances against his former police chief.

O’Neal admitted that no one from the City or Palmer told him to

participate in the investigation. O’Neal does not argue, and the

record does not show, that his minimal participation in the investi-

gation prejudiced him in any way. Accordingly, we also affirm as

to this issue.

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V

State actors can be liable for depriving persons of any rights

secured by the Constitution. 42 U.S.C. § 1983. Specifically, a state

employer may not retaliate against a public employee for speech

protected by the First Amendment. Oladeinde v. City of Birming-

ham, 230 F.3d 1275, 1291 (11th Cir. 2000).

A First Amendment retaliation claim is governed by a four-

part analysis. Moss v. City of Pembroke Pines, 782 F.3d 613, 617

(11th Cir. 2015). A court must: (1) determine whether the plain-

tiff’s speech was made as a citizen and whether it implicated a mat-

ter of public concern; (2) weigh the plaintiff’s First Amendment in-

terests against the City’s interest in regulating speech to promote

efficient public services; (3) determine whether the speech was a

substantial motivating factor in termination; and (4) determine

whether the plaintiff’s employer could show that it would have ter-

minated the plaintiff even absent his speech. Id. at 617–18. These

first two inquiries address whether the speech is constitutionally

protected and are questions of law; the second two are questions

of fact for the jury to resolve unless the evidence is undisputed. Id.

at 618.

Significantly here, the district court addressed only the first

prong, which we have analyzed as two separate components. See,

e.g., Alves v. Bd. of Regents of the Univ. Sys. of Ga., 804 F.3d 1149,

1159–68 (11th Cir. 2015). In clarifying our First Amendment anal-

ysis, Alves stated that “the first part of this circuit’s [] analysis now

asks whether the employee spoke as a citizen and whether the

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speech involved a matter of public concern.” Id. at 1159 n.4 (em-

phasis in original). Alves noted that these components are closely

intertwined and analyzed both even when one failed, so as to “bet-

ter serve the parties.” See id. at 1160–68 & n.5.

Whether a plaintiff’s speech is a matter a public concern de-

pends on whether it can be fairly considered as relating to any mat-

ter of political, social, or other concern to the community, or when

it is a subject of legitimate news interest. Lane v. Franks, 573 U.S.

228, 241 (2014). This determination requires analyzing the speech’s

content, form, and context as revealed by the whole record. Id.

Courts must analyze the context of the speech and ask whether the

employee spoke on a matter of public concern or on matters of

only personal interest. Alves, 804 F.3d at 1162. An employee’s

speech will rarely be entirely private or entirely public, so courts

must determine whether the main thrust of the speech in question

was essentially public or private. Id. For example, the Supreme

Court has held that speech regarding corruption and the misuse of

state funds involved matters of public concern. Lane, 573 U.S. at

241. The Supreme Court has also concluded that allegedly discrim-

inatory policies involved a matter of public concern. See Connick

v. Myers, 461 U.S. 138, 146 (1983). We have said that an employee

whose speech directly affects the public’s perception of the quality

of education in a given academic system could be protected, and

thus, a matter of public concern. See Maples v. Martin, 858 F.2d

1546, 1553 (11th Cir. 1988) (collecting cases).

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Further, a court may consider the employee’s attempt to

make his concerns public along with his motivation for speaking,

but failure to air concerns to the public is not dispositive. Alves,

804 F.3d at 1162; see, e.g., Akins v. Fulton Cnty., Ga., 420 F.3d 1293,

1304 (11th Cir. 2005) (noting that plaintiff’s request for a special

meeting with a public official—one of the members of the govern-

ing body of the county—indicated that his speech was public in na-

ture), and Cooper v. Smith, 89 F.3d 761, 765 (11th Cir. 1996) (af-

firming, in qualified immunity context, district court’s finding that

a plaintiff’s reports of corruption to law enforcement involved mat-

ters of public concern).

Here, the district court analyzed only whether O’Neal’s

speech addressed a matter of public concern, and it erred by stop-

ping there. Although O’Neal did complain about private matters

like scheduling, he also complained about workers’ compensation

fraud, discrimination, retaliation, the former police chief’s interfer-

ence with the third-party investigation, and alleged retaliation and

discrimination against Ricky Walraven, a City employee. These

subjects are matters of public concern, and that O’Neal made these

complaints public by voicing them to the Mayor and City Council,

among others, further indicates that his speech was on matters of

public concern. See Alves, 804 F.3d at 1162, 1166 (citing Maples,

858 F.2d at 1553); see also Akins, 420 F.3d at 1304. His complaint

regarding Walraven indicates that he was not furthering purely

personal interests. See Alves, 804 F.3d at 1162. Based on this, the

district court did not view the evidence in the light most favorable

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to O’Neal when determining that he did not speak on matters of

public concern. See Fewless, 886 F.3d at 1091. Accordingly, we

vacate and remand as to this issue. 1

AFFIRMED IN PART, VACATED AND REMANDED IN

PART.

1 We express no opinion on any other parts of the First Amendment retalia-

tion test and leave it to the district court to determine whether there is a gen-

uine issue of material fact as to those other parts.