Melton v. City of Roanoke

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ADAM MELTON, )

)

Plaintiff, )

)

v. ) Case No. 2:22-cv-00411-NAD

)

CITY OF ROANOKE, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER GRANTING

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

For the reasons stated below and on the record in the motion hearing, the court

GRANTS Defendant City of Roanoke’s motion for summary judgment (Doc. 22).

The City is entitled to judgment as a matter of law because there is no genuine

dispute of material fact for trial with respect to causation on Plaintiff Adam Melton’s

Title VII retaliation claim. Separately, the court will enter final judgment.

BACKGROUND

Plaintiff Melton was the Chief of Police for the City of Roanoke from 2004

until 2020, when Defendant Jill Patterson Hicks was elected Mayor of Roanoke and

selected someone else to replace Melton as police chief. Patterson Hicks ran for

mayor in part because of the community controversy that resulted after another

member of the Roanoke Police Department—Lieutenant Derek Farr—had posted an

allegedly racist message on his personal Facebook account. Patterson Hicks and

Farr were friends, and Melton had recommended that the former mayor discipline

Farr on account of the Facebook post.

A. Procedural background

Melton initiated this action, alleging two claims for relief: (1) a retaliation

claim against Defendant Patterson Hicks (the Mayor of Roanoke), in her individual

capacity, pursuant to 42 U.S.C. § 1981; and (2) a Title VII retaliation claim against

the City of Roanoke (Melton’s former employer), pursuant to 42 U.S.C. § 2000e-

3(a). Doc. 1 at 1, 15–20. The parties consented to magistrate judge jurisdiction.

Doc. 10; 28 U.S.C. § 636(c); Fed. R. Civ. P. 73; N.D. Ala. Local Rule 72.2.

After the close of discovery, Defendant Mayor Patterson Hicks filed a motion

for judgment on the pleadings. Doc. 19. Melton filed a response, “consent[ing] to

the dismissal of his claim under 42 U.S.C. § 1981 against Defendant Mayor

Patterson” Hicks. Doc. 21. Consequently, the court granted that motion, and

dismissed Melton’s § 1981 claim against Patterson Hicks. Doc. 25.

Melton’s Title VII retaliation claim against the City remained pending.

The City then filed this summary judgment motion (Doc. 22), with a

supporting brief (Doc. 24), and evidentiary material (Doc. 23). The parties fully

briefed the summary judgment motion. Doc. 26 (Melton’s evidentiary material);

Doc. 27 (Melton’s opposition); Doc. 28 (City’s reply). And the court held a motion

hearing. See minute entry, entered: 08/16/2023; Doc. 29 (order setting hearing).

After the motion hearing, the parties submitted supplemental briefing on the

causation issue of Mayor Patterson Hicks’ knowledge of Melton’s alleged protected

activity. Doc. 30 (Melton’s supplemental brief); Doc. 31 (City’s supplemental

brief); Doc. 32 (order on supplemental briefing).

B. Legal background

Title VII’s anti-retaliation provision prohibits an employer from retaliating

against an employee “because [the employee] has opposed any practice made an

unlawful employment practice” by Title VII. 42 U.S.C. § 2000e-3(a); see Gogel v.

Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1134 (11th Cir. 2020).1 With respect

to this “opposition” clause, the term “oppose” carries its ordinary meaning.

Crawford v. Metropolitan Gov. of Nashville & Davidson Cty., Tenn., 555 U.S. 271,

276 (2009).

A plaintiff can prove a Title VII retaliation claim with direct or circumstantial

evidence. Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1310 (11th Cir. 2016);

1 This provision is known as the “opposition” clause. While § 2000e-3(a) also

includes a “participation” clause, Melton’s retaliation claim in this case arises only

from the “opposition” clause quoted above in text. See, e.g., Doc. 27 at 17–18

(arguing that Melton “engaged in protected opposition activity,” and discussing the

opposition clause); Doc. 24 at 14–15 n.4 (City’s argument that the complaint “does

not appear to allege any claims of retaliation under the participation clause”); see

also 42 U.S.C. § 2000e-3(a) (prohibiting an employer from retaliating against an

employee “because [the employee] has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing” under Title

VII (participation clause)).

Rioux v. City of Atlanta, 520 F.3d 1269, 1274 (11th Cir. 2008).

“Direct evidence is evidence that, if believed, proves the existence of

discriminatory intent without inference or presumption.” Jefferson v. Sewon Am.,

Inc., 891 F.3d 911, 921 (11th Cir. 2018) (cleaned up). “Only 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.” Todd v.

Fayette Cty. Sch. Dist., 998 F.3d 1203, 1215 (11th Cir. 2021) (citing Fernandez v.

Trees, Inc., 961 F.3d 1148, 1156 (11th Cir. 2020)). For example, a decision-

maker’s statement that he planned to terminate an employee because the employee’s

deposition was the “most damning to the company” would be direct evidence of

retaliatory intent. Merritt v. Dillard Paper Co., 120 F.3d 1181, 1182 (11th Cir.

1997).

“In contrast, circumstantial evidence only ‘suggests—but does not prove—a

discriminatory motive.’” Jefferson, 891 F.3d at 921 (quoting Burrell v. Board of

Trs., 125 F.3d 1390, 1393 (11th Cir. 1997)).

Where a plaintiff bases his retaliation claim on circumstantial evidence, the

Eleventh Circuit “has primarily relied on the McDonnell Douglas framework to

evaluate circumstantial-evidence-based employment claims at summary judgment.”

Yelling v. St. Vincent’s Health Sys., 82 F.4th 1329, 1337 (11th Cir. 2023) (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)) (other citations and

quotation marks omitted). “Under that familiar framework, a plaintiff must first

make out a prima facie case by showing (1) she engaged in a statutorily protected

activity, (2) she experienced an adverse employment action, and (3) causation.” Id.

(citation omitted).

However, just last month (in December 2023), the Eleventh Circuit explained

what the McDonnell Douglas framework is and what it is not: “Properly

understood, McDonnell Douglas is an evidentiary framework that shifts the burden

of production between the parties to figure out if the true reason for an adverse

employment action was [discrimination]. It is not a set of elements that the

employee must prove—either to survive summary judgment or prevail at trial.”

Tynes v. Florida Dep’t of Juv. Just., 88 F.4th 939, 941 (11th Cir. 2023).

In Tynes, the Eleventh Circuit reiterated that the McDonnell Douglas

framework “is ‘only one method by which the plaintiff can prove discrimination by

circumstantial evidence.’ A plaintiff who cannot satisfy this framework may still

be able to prove her case with what [the Eleventh Circuit] ha[s] sometimes called a

‘convincing mosaic of circumstantial evidence that would allow a jury to infer

intentional discrimination by the decisionmaker.’” 88 F.4th at 946 (quoting Vessels

v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 n.3 (11th Cir. 2005)) (other citations

omitted). Accordingly, “in deciding motions for summary judgment,” the court

“look[s] beyond the prima facie case to consider all relevant evidence in the record

to decide the ultimate question of intentional discrimination.” Tynes, 88 F4th at 947.

But, regardless what Tynes may have said about a Title VII claim based on

circumstantial evidence, Tynes did not disturb or even discuss the causation standard

for a Title VII retaliation claim. See 88 F.4th at 943 (“A § 1981 claim differs in two

relevant ways from a Title VII claim—there is no cap on damages and the causation

standards are higher.”); see also id. at 942 (similar); infra Legal Standard, B.

Thus, even on the convincing mosaic approach, “[a]t the end of the day, a

retaliation plaintiff’s ‘mosaic’ of evidence must still be enough to allow a reasonable

jury to infer but-for causation.” Yelling, 82 F.4th at 1342 (citation omitted); see

also Reeves v. Columbus Consol. Gov’t, 2024 U.S. App. LEXIS 116, at *5 (11th Cir.

Jan. 3, 2024) (similar). “While the ‘convincing mosaic’ approach is more flexible

than the McDonnell Douglas framework, it is not a separate legal test. . . . The

‘convincing mosaic’ framework is rather a recognition ‘that courts must consider the

totality of a plaintiff’s circumstantial evidence’ before granting summary judgment.”

Reeves, 2024 U.S. App. LEXIS 116, at *5 (quoting Yelling, 82 F.4th at 1342).

C. Factual background

The following facts are undisputed, with all evidence and reasonable

inferences construed in Melton’s favor:

Melton began working for the Roanoke Police Department in 1989, and was

first appointed as Chief of Police in 2004; Melton is a white male. Doc. 24 at 5–6;

Doc. 27 at 7; Doc. 23-1 at 3. Melton remained Chief of Police until 2020. Doc.

24 at 5; Doc. 27 at 7; Doc. 23-1 at 3.

In May 2020, Derek Farr was a Roanoke police officer reporting to Melton;

Farr is a white male. Doc. 27 at 7; Doc. 24 at 6. On May 30, 2020, Farr posted a

message on his personal Facebook account commenting on protests related to the

death of George Floyd. Doc. 24 at 6; Doc. 27 at 7; Doc. 23-14. The post stated:

“Protesting? Yea right! More like thugs being thugs. It[’s] kind of hard to get

people to believe that you’re living in fear. Just saying . . .” Doc. 24 at 6; Doc. 27

at 8; Doc. 23-14.

Melton learned of Farr’s post when Roanoke City Council member Mack Bell

texted Melton a screenshot of Farr’s post. Doc. 24 at 6; Doc. 27 at 8; Doc. 23-4 at

5.

Melton testified in his deposition that “there was a stack of complaints about

what he said [i.e., Farr’s Facebook post] from the public that was probably that high

(indicating),” and that Farr’s Facebook post “was taken by multiple members of the

community as being racist.” Doc. 23-1 at 18–19 (Melton depo.).

Melton also received a letter from the Randolph County Branch of the

National Association for the Advancement of Colored People (NAACP), “on behalf

of . . . concerned citizens of Roanoke and surrounding area,” stating that Farr’s post

represented “hate speech.” Doc. 26-1 at 2; Doc. 27 at 8. The NAACP letter

included signatures from more than 35 “undersigned members of the community,”

and stated that the community members found “such rhetoric inflammatory, racially

insensitive, offensive and unprofessional.” Doc. 26-1 at 2; see Doc. 26-1 at 3–4

(signatures of community members). The NAACP letter also stated that “[i]t ha[d]

been reported to [the NAACP] that Mr. Farr has had a history of racist ‘hate

speech.’” Doc. 26-1 at 2.

On June 2, 2020, Melton placed Farr on administrative leave. Doc. 24 at 7;

Doc. 27 at 9; Doc. 23-1 at 6; Doc. 23-9. In the letter notifying Farr that he had been

placed on leave, Melton stated that “a complaint ha[d] been filed on [Farr] from the

NAACP regarding a Facebook post that [Farr] made regarding the ongoing protests

throughout the country.” Doc. 23-9.

Melton and Investigator Lorenzo Foster (along with another investigator)

investigated Farr’s Facebook post, and “gathered the statements.” Doc. 23-1 at 17.

Melton “hoped” to “put an end to any kind of even appearance that we had racial

bias inside [the] police department.” Doc. 23-1 at 17; see Doc. 24 at 7–8; Doc. 27

at 10. That investigation was completed by June 5, 2020. Doc. 23-1 at 17.

On June 9, 2020, Farr was issued a letter of discipline. Doc. 23-11. The

discipline letter stated that Melton had been investigating allegations made against

Farr for “Offenses of Abusive Personnel Conduct or Language Toward the Public

or Fellow Employees” and “Disgraceful Conduct which reflects unfavorably on the

City as an employer,” and that the investigation had shown that these allegations

were “well founded.” Doc. 23-11 at 1; Doc. 27 at 12.

The discipline letter listed by name more than 20 “members of the public”

who had submitted “statements of witnesses,” and who “had taken as abusive and

offensive” Farr’s “Facebook Post on Social Media.” Doc. 23-11 at 1–2.

The discipline letter stated that “[t]his has resulted from the negative

comments that [Farr] made whether intended or not toward members of this

community that has caused racial tensions between the police department, The City,

and the public.” Doc. 23-11 at 2.

The discipline letter also stated that Farr would be suspended without pay for

two weeks, and that he would be demoted from Lieutenant to “the position of

Dispatch[er]/Jailer.” Doc. 23-11 at 3. The letter was signed by the Mayor of

Roanoke at that time—Mike Fisher—but stated that Farr’s suspension and demotion

were made “upon the recommendation of the Chief of Police [i.e., Melton].” Doc.

23-11 at 3; Doc. 24 at 9; Doc. 27 at 12.

The discipline letter stated further that “there were many members of the

Roanoke Police Department that were offended by your [i.e., Farr’s] social media

post and are hurt by those comments from you.” Doc. 23-11 at 2.

During the summer of 2020, Patterson Hicks decided to run for Mayor of

Roanoke because she “didn’t like the way Roanoke was going”; Patterson Hicks is

a white female. Doc. 23-2 at 5 (Patterson Hicks depo.); Doc. 24 at 9. Patterson

Hicks considered Farr a friend, and she sometimes attended a church where Farr was

the pastor. Doc. 23-2 at 6; Doc. 24 at 9; Doc. 27 at 13. Farr married Patterson

Hicks and her husband, and christened her child. Doc. 23-2 at 6; Doc. 23-3 at 6

(Farr depo.).

Patterson Hicks was aware that members of the community were offended by

Farr’s Facebook post, and that members of the community had complained about

Farr’s Facebook post being racist. Doc. 23-2 at 10, 21; Doc. 31 at 2. Patterson

Hicks also was aware that Farr had been disciplined. Doc. 23-2 at 21; Doc. 24 at

11; Doc. 27 at 15.

Patterson Hicks did not think that Farr’s Facebook post was racist. Doc. 23-

2 at 10. Patterson Hicks organized a rally in support of Farr, and started a

“GoFundMe” account for Farr. Doc. 23-2 at 10; Doc. 23-3 at 30.

Patterson Hicks disagreed with Melton’s recommendation to suspend and

demote Farr because she did not think that Farr had done anything wrong. Doc. 23-

2 at 23.

But Patterson Hicks was not aware that Melton had conducted an internal

investigation to determine whether Farr had created a potentially hostile work

environment in the Roanoke Police Department. Doc. 23-2 at 13 (Q. “Well, did

[Melton] himself bring [the NAACP letter] to City Hall? Are you aware of the fact

he started an investigation internally?” A. “No.”); Doc. 23-2 at 21 (Q. “I want to go

back in time when you were just a citizen. Okay? Did you even know they

investigated Farr?” A. “No.”); Doc. 23-2 at 22 (Q. “When did you first learn that

members of the police department were offended by his social media post?” A. “This

case.” Q. “All right. When did you first know that citizens in the community were

offe[nd]ed by the social media post?” A. “The summer of 2020.”).

Patterson Hicks won the election, and on November 2, 2020, she was sworn

in as the new Mayor of Roanoke. Doc. 23-1 at 12; Doc. 24 at 9; Doc. 27 at 13.

After Patterson Hicks was sworn in as mayor, she met with Melton on

November 3, 2020. Doc. 23-2 at 17. During that meeting, Patterson Hicks “let

[Melton] know that he would no longer be the Chief of Police.” Doc. 23-2 at 35;

Doc. 24 at 10; Doc. 27 at 13. Patterson Hicks told Melton that she was

“appreciative of his years with the City and that he probably would not be

reappointed chief.” Doc. 23-2 at 17; Doc. 24 at 10.

Patterson Hicks believed that Melton no longer was qualified to be police

chief based on conversations she had with the previous mayor—Fisher—about

“[t]he way [Melton] handled . . . Farr and the Facebook post.” Doc. 23-2 at 13.

The Roanoke Personnel Policy states that the City “shall fill job/positions with

the most qualified eligible applicants.” Doc. 26-9 at 2; Doc. 27 at 16. Under that

personnel policy, the police chief position is an unclassified employee role, meaning

the “employee’s tenure of service is at the pleasure of the Mayor and City Council.”

Doc. 26-9 at 7; see Doc. 26-9 at 9 (“The Mayor is designated as the individual who

appoints and employ[s] all necessary employees for the municipality; except that

those positions in the unclassified service will be filled by the City’s Governing

Body and Mayor.”); see also Doc. 24 at 6 (“In Roanoke, the Mayor and five City

Councilpersons comprise the appointing authority and make appointments for

positions such as Police Chief.”).

After speaking with Patterson Hicks, Melton submitted a “letter of retirement”

that was dated November 3, 2020, and that was addressed to Patterson Hicks and the

City Council. Doc. 23-8.

Melton’s retirement letter stated as follows: “On November 3rd, the Mayor

[Patterson Hicks] asked me to submit my retirement effective before the November

16th City Council Meeting. At this meeting the council would be appointing

someone else as police chief and that I was being told in advance so that I wouldn’t

be surprised. I therefore see no other option but to submit my letter of retirement

. . . .” Doc. 23-8 at 1.

On November 16, 2020, Patterson Hicks and the City Council met for an

organizational meeting. Patterson Hicks had selected a new police chief—Jonathan

Caldwell—who was nominated based on her recommendation and then appointed.

Doc. 23-12; Doc. 23-1 at 15; Doc. 24 at 10–11; Doc. 27 at 16.

LEGAL STANDARD

A. Summary judgment

Summary judgment is appropriate when the movant establishes that “there is

no genuine dispute as to any material fact,” and that the movant “is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). A material fact is one that might affect the outcome of

the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).2 And a

dispute about a material fact is “genuine,” if “the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Id.

To avoid summary judgment, the nonmovant must go beyond mere

allegations to offer specific facts creating a genuine dispute for trial. Celotex, 477

U.S. at 324–25. The court’s responsibility is not to “weigh the evidence and

determine the truth of the matter but to determine whether there is a genuine issue

for trial.” Anderson, 477 U.S. at 249. The court must construe all evidence and

draw all reasonable inferences in favor of the nonmovant. Centurion Air Cargo,

2 Accord, e.g., Celotex, 477 U.S. at 322–23 (“[T]he plain language of Rule 56(c)

mandates the entry of summary judgment, after adequate time for discovery and

upon motion, against a party who fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial. In such a situation, there can be ‘no genuine issue

as to any material fact,’ since a complete failure of proof concerning an essential

element of the nonmoving party’s case necessarily renders all other facts

immaterial.”).

Inc. v. UPS Co., 420 F.3d 1146, 1149 (11th Cir. 2005).

Where there is no genuine dispute of material fact for trial, the movant is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a), (c).

B. Title VII retaliation—but-for causation, and the decision-maker’s

actual knowledge of the plaintiff’s alleged protected activity

As noted above, where a plaintiff bases a Title VII retaliation claim on

circumstantial evidence, the plaintiff must show causation. “Even if an employee

can establish statutorily protected activity and a materially adverse action, he still

must show a causal connection between them.” Ceus v. City of Tampa, 803 F.

App’x 235, 248 (11th Cir. 2020) (citing Alvarez v. Royal Atl. Developers, Inc., 610

F.3d 1253, 1268 (11th Cir. 2010)); Yelling, 82 F.4th at 1342 (“[A] retaliation

plaintiff’s ‘mosaic’ of evidence must still be enough to allow a reasonable jury to

infer but-for causation.”).

Recently (in October 2023), the Eleventh Circuit twice analyzed and clarified

the causation standard for a Title VII retaliation claim. In Yelling v. St. Vincent’s

Health System, the Eleventh Circuit explained that, “to succeed on [a] retaliation

claim, [the plaintiff] must show that her ‘protected activity was a but-for cause of

the alleged adverse action.’” 82 F.4th at 1338 (quoting University of Tex. Sw. Med.

Ctr. v. Nassar, 570 U.S. 338, 362 (2013)) (other citation omitted).

That but-for causation standard “asks whether ‘a particular outcome would

not have happened “but for” the purported cause.’” Yelling, 82 F.4th at 1338

(quoting Bostock v. Clayton Cty., 140 S. Ct. 1731, 1739 (2020)). “‘Stated another

way, a plaintiff must prove that had’” he not engaged in the alleged protected activity

“‘[he] would not have been fired.’” Id. (quoting Jefferson, 891 F.3d at 924).

The Eleventh Circuit in Yelling reviewed the Supreme Court’s 2020 decision

in Bostock, and reasoned that “sometimes ‘events have multiple but-for causes.’”

Yelling, 82 F.4th at 1339 (quoting Bostock, 140 S. Ct. at 1739–40). In Bostock, the

Supreme Court “articulated the longstanding traditional test for but-for causation:

‘a but-for test directs us to change one thing at a time and see if the outcome

changes.’” Id. (quoting Bostock, 140 S. Ct. at 1739).3 “If there are multiple but-

for causes, the removal of any one would change the outcome.” Id. Each but-for

cause “would be a necessary condition for the outcome, regardless of whether there

was another such necessary condition. Each could be viewed as the straw that broke

the camel’s back.” Id. (citations and quotation marks omitted); see also Nassar,

570 U.S. at 360 (“Title VII retaliation claims must be proved according to traditional

principles of but-for causation . . . .”).

A Title VII retaliation claim “requires ‘proof that the desire to retaliate was

3 The “but-for test ‘directs us to change one thing at a time and see if the outcome

changes.’ If it does, the isolated factor is a but-for cause. And if it does not, the

isolated factor is not a but-for cause, and all of the other factors, taken together, are

sufficient.” Lapham v. Walgreen Co., 88 F.4th 879, 894 (11th Cir. 2023) (quoting

Bostock, 140 S. Ct. at 1739, and discussing causation standard for retaliation claims

under Family and Medical Leave Act (FMLA) and Florida’s Private Sector

Whistleblower Act (FWA)).

the but-for cause of the challenged employment action.’” Yelling, 82 F.4th at 1340

(quoting Nassar, 570 U.S. at 352). So, “a plaintiff with evidence of only a tagalong

‘forbidden consideration’ cannot meet h[is] summary judgment burden because [he]

cannot show ‘that the unlawful retaliation would not have occurred in the absence

of the alleged wrongful action or actions of the employer.’” Id. (quoting Nassar,

570 U.S. at 360).

Where a plaintiff alleges that an employer took an alleged “adverse action

because of unlawful retaliation and because of other lawful reasons,” the plaintiff

still has an “obligation to show an unlawful but-for cause resulted in the alleged

wrongful action.” Yelling, 82 F.4th at 1340 (emphasis in original).

And, for sake of clarity, where the evidence shows that “there were two but-

for causes—unlawful retaliation and a lawful factor—[the plaintiff] could have a

claim if the two combined to result in an adverse action that would not have occurred

without that combination.” Yelling, 82 F.4th at 1340. In such a situation, the

“retaliation would be a but-for cause because the adverse action would not have

occurred without it,” and the “fact that a lawful consideration was also a necessary

factor would not defeat [the plaintiff’s] claim.” Id. (citing Bostock, 140 S. Ct. at

1739).4

4 “Though available for Title VII discrimination claims, it is well-established that

the mixed-motive framework does not apply to Title VII retaliation claims.”

Yelling, 82 F.4th at 1338 (citing Nassar, 570 U.S. at 360). The Eleventh Circuit

Likewise, in Berry v. Crestwood Healthcare LP (also decided in October

2023), the Eleventh Circuit confirmed: “Our precedents are consistent with

Bostock.” 84 F.4th 1300, 1308 (11th Cir. 2023) (discussing pretext with respect to

a Title VII retaliation claim). According to the Eleventh Circuit, “Bostock explains

that ‘events [can] have multiple but-for causes.’” Id. (citing Bostock, 140 S. Ct. at

1739). But an “employee[] alleging multiple but-for causes must ‘show an unlawful

but-for cause resulted in the alleged wrongful action.’” Id. (quoting Yelling, 82

F.4th at 1340, in a parenthetical).

Moreover, for a Title VII retaliation plaintiff to show causation, the Eleventh

Circuit also requires evidence that the decision-maker had actual knowledge of the

plaintiff’s alleged protected activity. “In order to establish a causal connection, a

plaintiff must show that the decision-maker was aware of the protected activity.”

Ceus, 803 F. App’x 235, 248 (citing Shannon v. Bellsouth Telecomms., Inc., 292

F.3d 712, 716 (11th Cir. 2002))5; accord, e.g., Zarza v. Tallahassee Hous. Auth., 686

F. App’x 747, 754 (11th Cir. 2017) (“[W]ithout evidence of [the decision-maker’s]

actual knowledge” of the alleged protected activity, a retaliation plaintiff’s claim

“use[s] the term ‘mixed motive’ to refer to claims based on the ‘motivating-factor’

standard applicable in Title VII discrimination claims.” Id. at 1338 n.4.

5 See Ceus, 803 F. App’x at 250 (reasoning that the plaintiff “argues that summary

judgment would be improper because the [record facts], taken collectively, establish

a ‘convincing mosaic’ of evidence that the decisionmaker intentionally

discriminated against him,” and that “[t]his argument also fails”).

fails); Stevenson v. City of Sunrise, No. 20-12530, 2021 U.S. App. LEXIS 30858, at

*29 (11th Cir. Oct. 15, 2021) (affirming the district court’s dismissal of a Title VII

retaliation claim and concluding that “as a matter of law [the plaintiff] did not

demonstrate causation,” because the plaintiff had “presented no evidence that [the

decision-maker] knew [the plaintiff] had complained of discrimination,” and

because the decision-maker instead had “testified that he did not know” of the

alleged protected activity (emphasis in original)); see also Walker v. Prudential

Prop. & Cas. Ins. Co., 286 F.3d 1270, 1274 (11th Cir. 2002) (Title VII

“[d]iscrimination is about actual knowledge, and real intent, not constructive

knowledge and assumed intent. When evaluating a charge of employment

discrimination, then, we must focus on the actual knowledge and actions of the

decision-maker” (citations and quotation marks omitted)).

DISCUSSION

Based on the controlling law, and the undisputed record evidence (construed

in Melton’s favor), there is no genuine dispute of material fact for trial with respect

to causation on Melton’s Title VII retaliation claim. There is no direct evidence

based on which a jury reasonably could find retaliation or a causal connection.

And, with respect to the circumstantial evidence, even if Melton can show protected

activity and an adverse action, there is no evidence based on which a reasonable jury

could infer that his alleged “protected activity was a but-for cause of the alleged

adverse action.” Yelling, 82 F.4th at 1338 (quotation marks omitted); see id. at 1342

(but-for causation on convincing mosaic approach).

As a preliminary matter, Melton’s theory of the case—under the opposition

clause, see supra Legal background—is that Patterson Hicks retaliated against him

because of his “opposition to Farr’s racist Facebook post and [Melton’s] actions to

address the resulting hostile work environment” in the Roanoke Police Department.

See, e.g., Doc. 27 at 17. According to Melton, his “investigation of Farr’s racist

Facebook post and his discipline of Farr for that post . . . constitute[d] protected

activity.” Doc. 27 at 17.

Practically speaking, the problem is that there is no evidence from which a

reasonable jury could find or infer that Patterson Hicks ever even knew that Melton

had conducted an internal investigation to determine whether Farr had created a

potentially hostile work environment in the police department, until after she already

had selected a new police chief to replace Melton in November 2020.

Consequently, no jury reasonably could find but-for causation—i.e., that Patterson

Hicks retaliated against Melton because of his internal investigation into and

opposition to a potentially hostile work environment in the police department.

Stated otherwise (on the plain language of the statute), no jury could find that

Patterson Hicks retaliated against Melton “because [Melton] ha[d] opposed any

practice made an unlawful employment practice.” 42 U.S.C. § 2000e-3(a).

First, there is no direct evidence based on which a jury reasonably could find

retaliation or a causal connection. According to Melton, Patterson Hicks’

deposition testimony—that she did not recommend Melton for reappointment as

police chief because of “[t]he way [Melton] handled . . . Farr and the Facebook post,”

Doc. 23-2 at 13—constitutes direct evidence of retaliation and of a causal connection

between Melton’s alleged protected activity and the alleged adverse action. See

Doc. 27 at 33–34. But, even “if believed,” that deposition testimony does not prove

discriminatory or retaliatory intent “without inference or presumption.” Jefferson,

891 F.3d at 921.

As explained above, Melton’s retaliation claim is based on the opposition

clause, which prohibits an employer from retaliating against an employee “because

[the employee] has opposed any practice made an unlawful employment practice.”

42 U.S.C. § 2000e-3(a).

In this regard, Patterson Hicks’ deposition testimony cannot constitute direct

evidence because, without more (i.e., without some inference or presumption), no

reasonable jury could find that Farr’s Facebook post was an unlawful employment

practice, or that “[t]he way [Melton] handled . . . Farr and the Facebook post” (Doc.

23-2 at 13) “opposed any practice made an unlawful employment practice” (42

U.S.C. § 2000e-3(a)).

As the Eleventh Circuit has said, “not every uncalled for, ugly, racist

statement by a co-worker is an unlawful employment practice,” particularly where

the relevant “incident occurred away from work.” Butler v. Alabama Dep’t of

Transp., 536 F.3d 1209, 1213 (11th Cir. 2008).

Among other things, there is no evidence that Farr’s Facebook post was

directed at Melton or any other member of the police department. So, without more,

any opposition to Farr’s Facebook post could “not constitute opposition to an

unlawful employment practice as a matter of law,” and Patterson Hicks’ deposition

testimony cannot constitute direct evidence because “[t]he opposition must be

directed at an unlawful employment practice of an employer, not an act of

discrimination by a private individual.” See Little v. United Techs., 103 F.3d 956,

959–60 (11th Cir. 1997). A “racially derogatory remark by a co-worker, without

more, does not constitute an unlawful employment practice under the opposition

clause.” Id. at 961.

Second, there is no circumstantial evidence based on which a reasonable jury

could infer but-for causation. In this regard, the court has “look[ed] beyond the

prima facie case to consider all relevant evidence in the record to decide the ultimate

question of intentional discrimination [i.e., retaliation].” Tynes, 88 F.4th at 947.

Again (as explained above, see supra Legal Standard, B), the Eleventh Circuit

repeatedly has recognized in the retaliation context that, “[a] decision maker cannot

have been motivated to retaliate by something unknown to him.” Brungart v.

BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000).6

Patterson Hicks’ undisputed deposition testimony is unequivocal: Before

she selected a new police chief (Caldwell) to replace Melton, Patterson Hicks did

not know that Melton had conducted an internal investigation into a potentially

hostile work environment in the police department; in fact, she did not know until

this case was filed. Doc. 23-2 at 20–21 (Q. “Okay. Now, there was an investigation

into Derek Farr started by Adam Melton. Did you have any involvement in that at

all?” A. “No.” Q. “Did you review the investigation in any way?” A. “I remember

getting documents up for the case, but --” Q. “No, no. You are talking about for this

case?” A. “Uh-huh.” Q. “I want to go back in time when you were just a citizen.

Okay? Did you even know they investigated Farr?” A. “No.”); Doc. 23-2 at 13 (Q.

“Are you aware of the fact he started an investigation internally?” A. “I am not.”).7

Likewise, Patterson Hicks’ undisputed deposition testimony is unequivocal

6 “Though Brungart concerns retaliation under the [FMLA],” the Eleventh Circuit

“has noted that FMLA and Title VII retaliation are analyzed under the same

standards.” Zarza, 686 F. App’x at 754 n.5.

7 Doc. 23-2 at 13 (Q. “What did you understand he [i.e., Mike Fisher, the prior

mayor] was trying to tell you that [Melton] should have done that he didn’t do?” A.

“That [Melton] brought it to him, that he should have handled everything internally

instead of it coming to City Hall, the complaint.” Q. “Okay. Who brought the

complaint to City Hall?” A. “I don’t know.” Q. “Are you aware that the NAACP

brought a complaint to City Hall and started a whole mess for lack of a better word?”

A. “I didn’t know they brought it to City Hall or to the police department.” Q. “Well,

did [Melton] himself bring it to City Hall? Are you aware of the fact he started an

investigation internally?” A. “I am not.”).

that she did not know that any “members of the police department were offended”

by Farr’s Facebook post, much less about any potentially hostile work environment

in the police department, until this case was filed. Doc. 23-2 at 22 (Q. “At some

point, did you become aware of that, that in addition to the citizens of the

community, the members of the police department -- some members of the police

department were offended by the social media post? Did you become aware of that?”

A. “No.” Q. “Is now the first time you have realized that I have shown this [i.e., the

June 9, 2020 discipline letter issued to Farr] to you?” A. “Oh, I thought you were

talking -- yes, I [have] seen this and I was aware.” Q. “And when you became mayor,

did you learn about all of this in November of 2020?” A. “No.” Q. “When did you

first learn that members of the police department were offended by his social media

post?” A. “This case.”).

The only record evidence is that Patterson Hicks did not know about the

NAACP letter until this case was filed, and did not know about the June 9, 2020

discipline letter issued to Farr until this case was filed. Doc. 23-2 at 21 (Q. “Were

you familiar with the NAACP letter that was sent in concerning their position on

what he [i.e., Farr] had posted back in 2020?” A. “No.”); Doc. 23-2 at 21–22

(testimony regarding discipline letter, quoted above).

In addition, until this case was filed, Patterson Hicks did not know about any

of the facts that form the basis of the alleged potentially hostile work environment

in the police department that Melton allegedly opposed. For instance, Patterson

Hicks did not know about Johnnie Henderson’s complaint regarding Farr’s

Facebook post. See Doc. 27 at 10, 28.8 Patterson Hicks did not know about

Yolanda Watkins’ EEOC charge. Doc. 27 at 10, 28.9 And Patterson Hicks did not

know that Lorenzo Foster had overheard Farr saying the n-word; Foster never

reported it. Doc. 27 at 10, 28; see Doc. 23-5 at 32 (Foster depo.).

Furthermore, the undisputed record evidence is that Patterson Hicks was the

decision-maker in selecting Caldwell to replace Melton as police chief. The

minutes for the November 16, 2020 meeting of the Mayor and City Council show

that Patterson Hicks “read the retirement letter of Adam Melton.” Doc. 23-12 at 1.

After a motion to appoint Caldwell was made and seconded, “Council member [John

Frank] Houston asked if this appointment is seniority or do you [i.e., Patterson

Hicks] just hire who you want.” Doc. 23-12 at 2. “Mayor [Patterson Hicks]

8 Doc. 23-2 at 26 (Q. “Well, [Henderson] says, ‘I filed a verbal complaint in October

2020 with Chief of Police Adam Melton regarding a racially discriminatory social

media post made by one of the department’s white officer[s].’ Were you aware of

that?” . . . A. “No.” Q. “You never knew about this?” A. “Prior to this, no.”).

9 Doc. 23-2 at 26 (Q. “Any other EEOC charges filed against the City in any

department?” A. “Since I have been mayor?” Q. “Yes.” A. “No.” Q. “How about

before you were mayor?” A. “Yes.” Q. “Who filed charges?” A. “Yolanda Watkins.”

Q. “Who else?” A. “Nobody else that I know of.” Q. “Have you seen Watkins’

[complaint]?” A. “I have not seen it, no. The attorney asked for it yesterday and we

got it for him. I don’t know what it said.” Q. “Were you mayor when it was filed?”

A. “No.” Q. “Did you find it?” A. “Yes.” Q. “Did you read it?” A. “I didn’t.” Q.

“Who was mayor when that charge was filed?” A. “Mike Fisher.”).

advised appointments are not based on seniority but on her selection for

appointment.” Doc. 23-12 at 2; see also Doc. 26-9 at 9 (police chief position “will

be filled by the City’s Governing Body and Mayor” under the City’s personnel

policy).

Council member Mike Parmer testified in his deposition that under the City’s

personnel policy “the Mayor recommends and the Council appoints” the police

chief, and that Caldwell was appointed because Patterson Hicks had “recommended

one name.” Doc. 23-6 at 18 (Parmer depo.).10

In her deposition, Patterson Hicks testified, “I didn’t ask for [Melton’s]

resignation”; instead, she told him he would not be reappointed as police chief.

Doc. 23-2 at 16 (Q. “What did you ask for? Did you tell him he’s not get[ting]

10 Doc. 23-6 at 17–19 (Q. “So what happens, a name comes forward -- you have got

one name and some[one] says, okay, I nominate this name --” A. “Yes.” Q. “--

whoever the name is to move things along?” A. “A second and then a vote.” Q. “And

that’s it; right?” A. “Yes.” Q. “Okay. So the only name there was -- you need a chief;

right?” A. “Yes.” Q. “The only name put forth was --” A. “Caldwell.” Q. “Only

Caldwell’s name. Was the Mayor the person that recommends to the Council the

name?” A. “I mean, I brought it up. I was the one that made the nomination should

I say.” Q. “How was his name the name in front of you?” A. “He come

recommended.” Q. “By the Mayor?” A. “Yes.” Q. “I’ve read the policy. The way it

works, the Mayor recommends and the Council appoints?” A. “Yes.” Q. “Okay. So

Mayor recommended one name and that was --” A. “Yes.” Q.“-- Caldwell?” A.

“Caldwell.” Q. “And y’all need a chief --” A. “Yes.” Q. “-- and so here is the name,

let’s move things along you say, okay, I vote to nominate Caldwell --” A. “Yes.” Q.

“-- somebody seconded it --” A. “And it went to a vote.” Q. “-- went to a vote, and

he gets nominated?” A. “Yes.” Q. “And that’s the end of it; right, your

involvement?” A. “Yes.”).

reappointed as chief?” A. “Yes.” Q. “When you told him he wasn’t getting

reappointed as chief was [that] because you didn’t recommend him, you were not

going to recommend him as chief; right?” A. “Right.” Q. “You were going to

recommend somebody else; right?” A. “Right.” Q. “And so his chief job was over?”

A. “Right.” Q. “And at that point, he had no job?” A. “He could have asked for an

open position that was at the police department.”).11

Likewise, Melton asserts that “Mayor Patterson [Hicks] selected [Melton’s]

replacement” as police chief (Doc. 27 at 15 (subheading emphasis omitted)), and

that under the City’s personnel policy “the mayor recommends the person and the

council appoints the person according to the Mayor’s recommendation” (Doc. 27 at

16).

Melton’s November 3, 2020 retirement letter also stated that Patterson Hicks

had “asked [him] to submit [his] retirement,” that “the council would be appointing

11 Accord Doc. 23-2 at 17 (Q. “Do you remember telling [Melton] you would take

his retirement that day and his retirement had to be effective before November

16th?” A. “That’s not what I said.” Q. “Okay. What did you say?” A. “I told him

that I was appreciative of his years with the City and that he probably would not be

reappointed chief, and I was going to let him decide what he wanted to do.” Q. “Well,

you weren’t going to recommend him. If you didn’t recommend him he wouldn’t be

reappointed; right?” A. “Yes.”); Doc. 23-2 at 27–28 (“Once you became mayor, you

let Mr. Melton know you were not going to recommend him to in the Council to be

chief; correct?” A. “Yes.” Q. “And therefore his time as chief was over; correct?”

A. “Yes.” Q. “And that’s how it works, to be the chief, you have to recommend the

person to be chief; right?” A. “It’s a vote.” Q. “You have to recommend them to get

them to vote on it; right?” A. “Right.” Q. “And so you didn’t recommend Melton,

so he was not going to be chief; correct?” A. “Right.” Q. “Am I correct?” A. “Yes.”).

someone else as police chief,” and that—in light of his meeting with Patterson

Hicks—Melton “s[aw] no other option but to submit [his] letter of retirement.”

Doc. 23-8 at 1.

Given that Patterson Hicks was the decision-maker who decided to select a

new police chief to replace Melton, Melton cannot create a jury question based on

what any city council member may have known about Melton’s internal

investigation or a potentially hostile work environment in the police department.

Council member Tammi Holley testified in her deposition that she personally spoke

with numerous African-American employees in the police department who “didn’t

feel comfortable being under [Farr] [as] a supervisor” because of his Facebook post.

Doc. 23-7 at 7–8 (Holley depo.). When asked why Patterson Hicks “force[d]

[Melton] to resign,” Holley responded, “In a sense retaliation, I would say. I would

use the wor[d] retaliation.” Doc. 23-7 at 5.12 But there is no evidence that

Patterson Hicks knew Holley had discussed an alleged potentially hostile work

12 Doc. 23-7 at 5 (Q. “Who forced him to resign?” A. “The Mayor.” Q. “Mayor

[Patterson] Hicks?” A. “Yes.” Q. “What is your understanding of why she force[d]

him to resign?” A. “I don’t think she liked the way it was handled with Derek Farr.”

Q. “Meaning what?” A. “I say demotion, but he wasn’t really demoted, I don’t think.

He kept his title, he kept his money, but she had this thing going -- it was a

GoFundMe on Facebook and all these people rallying behind [Farr], and I think they

had [a] rally downtown.” Q. “Yes, ma’am.” A. “She was a big backer, and so I guess

it was like -- I don’t know, but I’ll get your back, something like that.” Q. “To Mr.

Melton?” A. “Yes.” Q. “For?” A. “In a sense retaliation, I would say. I would use

the wor[d] retaliation.”).

environment with any police department employee, and nothing in Holley’s

testimony could be used to create a genuine dispute for trial with respect to Patterson

Hicks’ testimony that she did not know about Melton’s internal investigation into an

alleged potentially hostile work environment in the police department.

Melton seems to suggest that a jury could discredit Patterson Hicks’ testimony

that she did not know about Melton’s internal investigation into an alleged

potentially hostile work environment in the police department. But (again), the

Eleventh Circuit repeatedly has required that, “to establish a causal connection,” a

retaliation plaintiff “must show that the decision-maker was aware of the protected

activity.” Ceus, 803 F. App’x at 248 (citing Shannon, 292 F.3d at 716). So,

Melton is the party who needs to identify evidence based on which a jury reasonably

could find or infer that Patterson Hicks “was aware of the protected activity” (id.);

and he has not done so.

As explained above, Patterson Hicks’ deposition testimony in this respect is

undisputed; there is no fact dispute for trial, no evidence to challenge her credibility

on this point, and no evidence from which a jury could find or infer that she “was

aware of the protected activity” (id.). The only evidence is that Patterson Hicks was

not aware.

Melton also seems to suggest that, even if Patterson Hicks did not know about

Melton’s internal investigation into an alleged potentially hostile work environment,

she should have known. But that is not the law. See, e.g., Walker, 286 F.3d at

1274 (Title VII “[d]iscrimination is about actual knowledge, and real intent, not

constructive knowledge and assumed intent” (citations and quotation marks

omitted)).

Regardless, there is no evidence based on which a reasonable jury could find

or infer that—from Patterson Hicks’ perspective, at the time that she selected a new

police chief to replace Melton—Melton’s investigation into Farr’s Facebook post

was anything other than a public and/or political community issue. Melton points

to two text messages Patterson Hicks sent to Farr after she was elected mayor: In

the first, which was dated October 28, 2020, Patterson Hicks stated, “I also feel it’s

not the right time for you [i.e., Farr, to be police chief]. You being chief will cause

Roanoke to have a racial war,” Doc. 26-6 at 12, 1313; and, in the second, which was

dated November 9, 2020, she stated, “I haven’t changed my mind and I whole

heartedly agree you got a raw deal. There is still legal issues that I was unaware of

. . . ,” Doc, 26-2 at 17.14 But nothing in those text messages provides any fact basis

13 Doc. 23-2 at 9 (Q. “Did you think electing him [Farr] would cause a race war

putting him in the chief job?” A. “Potentially, yes.” Q. “Why do you think that?” A.

“There was just too much controversy with the post.” Q. “With the Facebook post

that he did?” A. “Yes.”).

14 Doc. 23-2 at 36 (Q. “What are you talking about, a raw deal with what?” A. “I

don’t remember.” Q. “Was it him being demoted and taken out of his job?” A. “Yes.”

Q. “‘There’s legal issues that I was unaware of.’ What legal issues?” A. “I don’t

know.” Q. “Are you just saying that or --” A. “I don’t.” Q. “-- were there legal --”

for a reasonable inference that Patterson Hicks knew or should have known that

Melton had conducted an internal investigation into an alleged potentially hostile

work environment in the police department; that would be jury speculation,

particularly in light of Patterson Hicks’ undisputed testimony that she did not know.

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 . . . .”

(emphasis in original)).

For sure, the record evidence shows that, when she selected a new police chief

to replace Melton, Patterson Hicks knew that people in the Roanoke community had

been offended and upset by Farr’s Facebook post. Doc. 23-2 at 22 (Q. “When did

you first learn that members of the police department were offended by his social

media post?” A. “This case.” Q. “All right. When did you first know that citizens in

the community were offe[nd]ed by the social media post?” A. “The summer of

2020.”).15

A. “I don’t know.” Q. “What had you promised him?” A. “Nothing.”).

15 Patterson Hicks did not review any of the community complaints until after this

case was filed. Doc. 23-2 at 21 (“It was pretty quickly after the post came to light

and the community started raising a ruckus; right?” A. “Yes.” Q. “In June of 2020,

did you review some of the e-mails and statements that came in expressing the

outrage of the African-Americans in the community about the post?” A. “No.” Q.

“Is the first time you reviewed that when this case got started --” A. “Yes.” . . . Q.

“So you knew he put out this Facebook post and you knew the people in the

community were upset with him; right?” A. “Yes.”).

The record evidence also shows that, when she selected a new police chief to

replace Melton, Patterson Hicks knew that Melton had recommended that Farr be

disciplined—i.e., suspended and demoted. Doc. 23-2 at 23.16

But—after she was elected mayor—Patterson Hicks was free to select a new

police chief to replace Melton for public reasons, for political reasons, for (vengeful)

personal reasons, or for “no reason at all,” so long as her decision was “not for a

discriminatory [or retaliatory] reason.” Phillips v. Legacy Cabinets, 87 F.4th 1313,

1325 (11th Cir. 2023) (quoting Flowers v. Troup Cty., Ga., Sch. Dist., 803 F.3d

1327, 1336 (11th Cir. 2015)) (quotation marks omitted).17

In this regard, the undisputed record evidence shows that Patterson Hicks did

not think that Farr’s Facebook post was racist, did not think that Farr had done

anything wrong, and disagreed with Melton’s recommendation to suspend and

demote Farr. Doc. 23-2 at 10, 23.

16 See also Doc. 23-2 at 15 (“Had Mr. Melton investigated -- set up an investigation

for somebody that engaged in what apparently was race discrimination -- making a

race-discriminatory Facebook post; right?” A. “What are you asking?” Q. “I’m

asking were you aware of the fact that Mr. Melton set up an investigation concerning

Mr. Farr’s Facebook post to determine whether it was racially an inappropriate

Facebook post that would violate City policy?” A. “Yes.” Q. “And you were aware

of that at the time you did not reappoint him as chief; right?” A. “Yes.”).

17 As the Eleventh Circuit “repeatedly has recognized, ‘employers are free to fire

their employees for a good reason, a bad reason, a reason based on erroneous facts,

or for no reason at all, as long as its action is not for a discriminatory reason.’”

Phillips, 87 F.4th at 1325 (quoting Flowers, 803 F.3d at 1338).

The undisputed record evidence also shows that Patterson Hicks had decided

to run for mayor in the summer of 2020, had organized a rally in support of Farr,

and had started a “GoFundMe” account for Farr. Doc. 23-2 at 10; Doc. 23-3 at 30.

The undisputed record evidence shows further that Patterson Hicks considered

Farr a friend, and sometimes had attended a church where Farr was the pastor; and

Farr had married Patterson Hicks and her husband, and christened her child. Doc.

23-2 at 6; Doc. 24 at 9; Doc. 27 at 13; Doc. 23-3 at 6.

What the record doesn’t show is any basis for a jury reasonably to find or infer

that, until this case was filed, Patterson Hicks knew anything about Melton’s internal

investigation into—or opposition to—an alleged potentially hostile work

environment in the police department, or that Melton’s recommended discipline of

Farr had anything to with any such internal investigation.

“‘The critical decision that must be made is whether the plaintiff has create[d]

a triable issue concerning the employer’s discriminatory [or retaliatory] intent.’”

Phillips, 87 F.4th at 1325 (quoting Flowers, 803 F.3d at 1336). “‘Title VII

functions only as a bulwark against unlawful discrimination [and retaliation]; it does

not substitute the business judgment of federal courts for any other

nondiscriminatory reason.’” Id. (quoting Flowers, 803 F.3d at 1330).

In this case, Melton “must prove that had” he not conducted an internal

investigation into an alleged potentially hostile work environment in the police

department “[he] would not have been [replaced]” as police chief. Yelling, 82 F.4th

at 1338 (citation and quotation marks omitted). On the undisputed record evidence,

Melton cannot do so. Until this case was filed, Patterson Hicks didn’t even know

about Melton’s internal investigation into an alleged potentially hostile work

environment in the police department, let alone that Melton’s recommended

discipline of Farr had anything to with any such internal investigation.

The Eleventh Circuit’s but-for causation standard “asks whether a particular

outcome would not have happened but for the purported cause,” and instructs the

court to “change one thing at a time and see if the outcome changes.” Yelling, 82

F.4th at 1338–39 (citation and quotation marks omitted). Here, changing the one

thing—i.e., taking Melton’s internal investigation into an alleged potentially hostile

work environment in the police department as the “isolated factor,” and removing

it—shows that all of the evidence and the only reasonable inference is that the

outcome would not have changed: Patterson Hicks still would have selected

someone else to replace Melton as police chief, whether for public, political, or

personal reasons. See Lapham, 88 F.4th at 894 (reasoning that, if changing the one

thing does not change the outcome, “the isolated factor is not a but-for cause, and all

of the other factors, taken together, are sufficient”). Thus, Melton’s internal

investigation cannot be a “necessary condition” to Patterson Hicks’ decision to select

someone else to replace Melton as police chief, and cannot be “viewed as the straw

that broke the camel’s back.” Yelling, 82 F.4th at 1339 (citation and quotation

marks omitted).

CONCLUSION

For the reasons stated above, Defendant City of Roanoke’s summary

judgment motion (Doc. 22) is GRANTED. The court separately will enter final

judgment.

DONE and ORDERED this January 31, 2024.

AG A. DANELLA

UNITED STATES MAGISTRATE JUDGE

34