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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-13030
Non-Argument Calendar
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D.C. Docket No. 5:14-cv-00315-MTT
LORIE POTTER,
Plaintiff-Appellee,
versus
DON WILLIFORD,
in his individual and official capacities,
Defendant-Appellant.
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No. 16-15743
Non-Argument Calendar
________________________
D.C. Docket No. 5:14-cv-00315-MTT
LORIE POTTER,
Plaintiff-Appellee,
versus
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THE ESTATE OF LUCIUS VAN PEAVY,
Defendant-Appellant.
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Appeals from the United States District Court
for the Middle District of Georgia
________________________
(October 5, 2017)
Before WILSON, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Don Williford and the Estate of Lucius Van Peavy (Van Peavy)
(collectively, the Appellants) appeal the district court’s denial of their joint motion
for summary judgment based on qualified immunity in Lorie Potter’s action
alleging (1) race discrimination in violation of the Equal Protection Clause against
Williford in his individual capacity, pursuant to 42 U.S.C. §§ 1981, 1983; and (2)
retaliation for political association in violation of the First Amendment against Van
Peavy, pursuant to 42 U.S.C. § 1983. On appeal, the Appellants argue that the
district court should have granted summary judgment in their favor on Potter’s
claims against Williford and Van Peavy, because both were entitled to qualified
immunity.
I. Race Discrimination Claim Against Williford
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We review de novo a district court’s denial of summary judgment based
upon qualified immunity. See Sherrod v. Johnson, 667 F.3d 1359, 1363 (11th Cir.
2012) (per curiam). In doing so, we “resolv[e] all issues of material fact in favor
of the plaintiff.” Id.
Qualified immunity completely protects individual public officers from
liability when performing their “discretionary functions[, so long] as their conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person in their position would have known.” See id. (internal quotation
marks omitted). Generally, whether an official is entitled to qualified immunity is
analyzed by looking to (1) whether the plaintiff established the violation of a
constitutional right, and (2) whether that right was clearly established. See
Pearson v. Callahan, 555 U.S. 223, 232, 129 S. Ct. 808, 815–16 (2009).
A right is clearly established when it was “earlier [] developed in such a
concrete and factually defined context to make it obvious to all reasonable
government actors, in the defendant’s place, that [the defendant was] violat[ing]
federal law.” See Sherrod, 667 F.3d at 1363 (internal quotation marks omitted).
The Equal Protection Clause right to be free from race discrimination in public
employment is clearly established. See Smith v. Lomax, 45 F.3d 402, 407 (11th
Cir. 1995). Discrimination claims under the Equal Protection Clause are subject to
the “same analytical framework” as intentional discrimination claims brought
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under Title VII and § 1981. See Bryant v. Jones, 575 F.3d 1281, 1296 n.20 (11th
Cir. 2009). Accordingly, a plaintiff may satisfy the burden to produce evidence of
race discrimination and establish a prima facie case by showing that: (1) she is a
member of a protected class; (2) she was qualified and applied for a promotion; (3)
she “was rejected in spite of h[er] qualifications;” and (4) “the individual who
received the promotion is not a member of the protected group and had lesser or
equal qualifications.” See Carter v. Three Springs Residential Treatment, 132 F.3d
635, 642 (11th Cir. 1998). After the plaintiff establishes a prima facie case, “[t]he
burden then shifts to the employer to articulate legitimate nondiscriminatory
reasons for the failure to promote.” Id. at 643. Satisfying this burden shifts the
burden back to the plaintiff to show that the employer’s articulated reasons are
pretextual. Id. An employer may not use subjective evaluations, but only
objective criteria, to show that a plaintiff failed to illustrate that she was qualified
for the position as part of her prima facie case. See Vessels v. Atlanta Indep. Sch.
Sys., 408 F.3d 763, 768–69 (11th Cir. 2005) (per curiam).
The district court properly denied summary judgment to Williford based on
qualified immunity as to Potter’s race discrimination claim, because Potter showed
that, drawing all factual determinations in her favor, Williford violated her
constitutional rights to be free from racial discrimination in public employment.
See Sherrod, 667 F.3d at 1363; Smith, 45 F.3d at 407. First, Potter met her burden
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to present a prima facie case because she met the objective qualifications for the
full-time EMT position. See Carter, 132 F.3d at 642. Williford’s argument that
Potter was not qualified for a full-time position fails because Williford’s
conclusion that Potter had a negative relationship with other EMTs is a subjective
evaluation, which is irrelevant to the prima facie element of being qualified for the
position. See Vessels, 408 F.3d at 768–69.
Potter also presented genuine issues of material fact as to whether
Williford’s reason for the promotion of Woodson over Potter–– that the other
EMTs disliked Potter––was a pretext for race discrimination. See Carter, 132 F.3d
at 643. Williford’s own statements to Potter that the decision was based on the
need to “diversify the department” and that he would hire a Hispanic EMT next
time “to cover all the bases” rebuts Williford’s insistence that his decision was
based on the other EMTs negative impressions of Potter.
Finally, the district court was correct to hold that the Equal Protection
Clause’s protection against race discrimination in public employment is clearly
established, so Williford is not entitled to qualified immunity.
II. First Amendment Retaliation Claim Against Van Peavy
We have held that it is clearly established that public officials may not
retaliate against private citizens for exercising their First Amendment rights. See
Bennett v. Hendrix, 423 F.3d 1247, 1255 (11th Cir. 2005). To establish retaliation
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in violation of the First Amendment, a private-citizen plaintiff must show that (1)
her speech or act was constitutionally protected; (2) the defendant’s retaliatory
conduct was likely to “deter a person of ordinary firmness from the exercise of
their First Amendment rights;” and (3) “there is a causal connection between the
retaliatory conduct and the adverse effect on the speech.” Id. at 1250–51 (internal
quotation marks omitted). Even when the deterrent is small, the retaliation may
still be actionable. See id. at 1254.
The district court properly denied summary judgment to Van Peavy based on
qualified immunity as to Potter’s First Amendment retaliation claim, because
Potter showed that, drawing all factual determinations in her favor, Van Peavy
violated her constitutional right to be free from retaliation for exercising her First
Amendment right to political association. See id. at 1250–51, 1254–55. Van
Peavy did not challenge that Potter engaged in protected political speech when she
supported Williams’s campaign to replace Van Peavy as Sheriff. Potter presented
a genuine issue of material fact as to whether Van Peavy’s actions were likely to
deter a person from exercising their First Amendment rights because she presented
evidence that when Van Peavy banned her from the Law Enforcement Center, it
created a negative atmosphere at her workplace, and even a small deterrent effect
can create a genuine issue of material fact. See id. at 1254. Potter also presented a
genuine issue of material fact that Van Peavy’s asserted reason for the ban––that
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Potter had an incident of inappropriate behavior––was not legitimate because
another EMT was also listed as engaging in the exact same conduct as Potter in the
incident report, but was not banned. Resolving all disputed facts in favor of Potter,
the district court was correct to conclude a reasonable jury could find that Van
Peavy’s asserted reason for the ban was not based, even in part, on a legitimate
reason. Finally it is clearly established that public officials may not retaliate
against private citizens for exercising their First Amendment rights, so the district
court was correct to deny Van Peavy qualified immunity. See id. at 1250, 1254–
55.
In conclusion, because Potter sufficiently showed that Williford violated her
constitutional right to be free from race discrimination in public employment, Van
Peavy violated her constitutional right to be free from retaliation for exercising her
First Amendment right to political association, and those rights were both clearly
established, we affirm.
AFFIRMED.
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