[DO NOT PUBLISH]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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