           Case: 13-14323    Date Filed: 07/02/2014   Page: 1 of 15


                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 13-14323
                          Non-Argument Calendar
                        ________________________

                   D.C. Docket No. 1:12-cv-01036-WSD


LORETTA J. BOONE,

                                                             Plaintiff-Appellant,

                                   versus


CITY OF MCDONOUGH,
a municipal corporation,
PRESTON DORSEY,

                                                          Defendants-Appellees.

                       ________________________

                 Appeal from the United States District Court
                    for the Northern District of Georgia
                       ________________________

                               (July 2, 2014)

Before MARCUS, FAY and KRAVITCH, Circuit Judges.

PER CURIAM:
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      Loretta J. Boone appeals from the district court’s grant of summary

judgment to defendants City of McDonough and McDonough Chief of Police

Preston Dorsey (collectively the defendants), as to Boone’s claims of

discrimination and retaliation, in violation of 42 U.S.C. § 1983 and Title VII of the

Civil Rights Act of 1964 (Title VII), and a related First Amendment claim brought

under 42 U.S.C. § 1983. For the reasons that follow, we affirm.

                                              I.

      Boone, a black female, was hired by the McDonough police department in

November 2002. In 2007, she was promoted to sergeant, a position she held until

her termination in January 2011.

      After Boone was promoted to sergeant, she worked under the supervision of

Lieutenant Cal Callahan. Boone and Callahan did not get along, and Callahan

informed Boone that he thought she was incompetent and unqualified for the

sergeant position. In 2009, Callahan disciplined her for insubordination.

      Following this disciplinary action, Boone wrote a grievance to Dorsey

outlining her difficulties with Callahan and responding to the disciplinary action.

Boone alleged that Callahan treated her differently than male officers and that he

harassed and bullied her, creating a hostile work environment. Dorsey turned the

grievance over to human resources manager Carla Tuck, who investigated Boone’s

allegations. At Tuck’s request, Boone submitted a memorandum detailing


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instances of discriminatory treatment in the department dating back to 2003. 1

Following her investigation, Tuck concluded that Boone and Callahan could not

work together, but that there was no evidence that Callahan engaged in race or

gender discrimination. As a result of Tuck’s investigation, Dorsey transferred

Callahan to a different shift.

       Although Tuck investigated Boone’s complaint against Callahan, the City

Administrator brought in David Archer to investigate Boone’s complaint that the

department as a whole suffered from racial animus. After interviewing numerous

officers, Archer concluded that, although there were some instances of misconduct,

there was no pattern of discrimination and that the earlier use of racially insensitive

language had been addressed by the department.

       In March 2009, while Archer’s investigation was underway, Henry County

Police Department (HCPD) Officer C.D. Goetz filed a complaint against Boone

wih Dorsey. According to Goetz, while he was investigating an attack on Boone’s

son and questioning another boy involved, Boone stood nearby to listen. Goetz

instructed Boone to return to his squad car and complete some paperwork, but she

refused.




1
  Specifically, Boone wrote that Sergeant Elkins made several discriminatory comments to a
black officer, Major Langley referred to black men as “boy,” and Officer Yarian used racial slurs
to another officer.


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       Dorsey turned the complaint over to Tuck and Archer. Although Archer

concluded that Boone had engaged in the alleged misconduct, he recommended

that Boone not be disciplined.

       In April 2010, the HCPD again filed a complaint about Boone with Dorsey.

Officer Joseph Plemons alleged that Boone berated him about the manner in which

he was handling an investigation. Dorsey turned the complaint over to internal

affairs, and although the investigation showed that Boone had acted improperly,

she again was not disciplined.

       In November 2010, HCPD filed a third complaint about Boone stemming

from a traffic stop. After Boone ran a red light and was pulled over by HCPD, she

got out of her car to ask HCPD Officer M. Stroud to show professional courtesy

and not issue her a citation. Stroud directed Boone to get back into her car at least

four times before she complied. At some point, HCPD Sergeant J. Valentine

arrived to provide backup. Stroud issued the citation to Boone, at which point

Stroud and Boone argued over whether her conduct constituted obstruction.

Stroud and Valentine eventually told Boone she could leave. As Boone was

driving off, Stroud and Valentine heard Boone call them “rednecks.” 2 Valentine

stopped Boone and asked her if she usually called people rednecks, to which

Boone responded: “When they’re rednecks! Yes! I certainly do, racist, yeah. I

2
  The audio tape of the stop did not record Boone’s statement. But the tape showed Valentine
stop Boone, and it recorded the conversation between Boone and Valentine.

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certainly do when they are.” Valentine asked if he and Stroud were racist, and

Boone responded by asking “are you?” When Valentine asked Boone for the name

of her supervisor, Boone told him to “find out on your own.”

         Dorsey turned this third complaint over to internal affairs. Major Ken Noble

investigated the complaint and concluded that Boone had directed a racial slur at

Stroud and Valentine and had committed obstruction by refusing to get back into

her car. Because this was the third incident in which a HCPD officer had filed a

complaint against Boone for her conduct, Boone was terminated. She appealed her

termination to the City Administrator, who asked Tuck to investigate Boone’s

allegation that her termination was retaliatory. After Tuck concluded that there

was no evidence to support Boone’s allegations, the City Administrator upheld the

termination decision. Boone then filed a charge with the EEOC, alleging race and

gender discrimination and retaliation stemming from her discharge. After she

received a right-to-sue letter, Boone filed her civil complaint in the district court.

         In her complaint, Boone raised three arguments that are relevant to this

appeal: (1) disparate treatment on account of race and gender; (2) a retaliatory

firing for filing a grievance complaining about race and gender discrimination; and

(3) a violation of her First Amendment right to complain about the discriminatory

conduct. 3


3
    Boone also raised a claim of ultra vires, but withdrew the claim during her deposition.

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      The defendants moved for summary judgment on all claims. They argued

that Boone failed to establish a prima facie case of discrimination because she had

not shown any similarly situated comparators who were treated differently.

Alternatively, they argued that Boone failed to show their legitimate non-

discriminatory reasons for terminating her were a pretext for discrimination. With

respect to Boone’s retaliation claim, the defendants argued that Boone could not

show a causal connection between her grievance and her termination two years

later. They noted that any possible connection was removed by the intervening act

of Boone’s repeated misconduct.

      In her response to the defendants’ motion, Boone claimed that she satisfied

the prima facie cases of discrimination and retaliation because she was treated

differently from the male officers and there was a direct link between her grievance

and her termination. She then asserted that the facts supported her claims of

harassment and a hostile work environment because racially-charged words were

repeatedly used without punishment, and the hostility to women was department-

wide. She did not discuss her First Amendment claim, but instead alleged that she

was seeking to hold Dorsey personally liable for the harassment and discrimination

under § 1983. Boone then submitted affidavits from three former female City of

McDonough police officers: (1) Erica Lewis, to whom Yarian had made racial

comments; (2) Wendy Stephens, who was denied assignments and training


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opportunities because of her gender, and who heard rumors of discriminatory

treatment; and (3) Tammy Cannon, who stated that the “good-old-boy” style of

working was common knowledge around the police department. The defendants

objected to these affidavits as vague, conclusory, and not based on personal

knowledge.

      A magistrate judge recommended that summary judgment be granted in

favor of the defendants. With respect to the affidavits Boone submitted, the

magistrate judge explained that the allegations were generally not appropriate for

consideration, but noted that he would have reached the same result even if he had

considered them. Addressing the discrimination and retaliation claims, the

magistrate judge found that Boone failed to show a similarly situated comparator,

and there was no causal connection between Boone’s grievance and her

termination. The magistrate judge further found that Boone failed to rebut the

defendants’ legitimate nondiscriminatory reasons for terminating her – her

misconduct with the HCPD. Thus, the discrimination and retaliation claims failed.

The magistrate judge determined that Boone had abandoned her First Amendment

claim by failing to argue it in her response to the summary judgment motion. He

also concluded that, to the extent Boone raised a § 1983 equal protection claim

against Dorsey in his personal capacity, the claim was the same as the Title VII




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claim against the City of McDonough, and thus failed for the same reasons.4

Finally, the magistrate judge found that the complaint failed to allege harassment

or hostile-work-environment claims, nor had Boone exhausted those claims

because she failed to raise them in her EEOC charge, and these allegations could

not reasonably be expected to grow out of her exhausted claims.

       The district court adopted the magistrate judge’s recommendation and

granted summary judgment in favor of the defendants. 5 This is Boone’s appeal.

                                                       II.

       We review de novo the district court’s grant of summary judgment.

Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010). Summary

judgment is proper “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “We draw all factual inferences in a light most favorable to the

nonmoving party.” Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). We

may affirm a decision of the district court on any ground supported by the record.

Bircoll v. Miami-Dade Cnty., 480 F.3d 1072, 1088 n.21 (11th Cir. 2007).

                                                III.


4
   The magistrate judge also found that the Title VII claims against Dorsey in his individual
capacity failed. Boone does not challenge this finding on appeal and has abandoned it. Holland
v. Gee, 677 F.3d 1047, 1066 (11th Cir. 2012) (explaining that issues not raised in the initial brief
are abandoned).
5
   Although the district court adopted the magistrate judge’s recommendation, it issued an order
addressing Boone’s objections to the recommendation.

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       On appeal, Boone raises three issues: First, she argues that she sufficiently

exhausted her equal protection 6 claims in her EEOC complaint by stating that she

had previously made internal complaints about race and gender discrimination.

Second, Boone argues that the district court improperly determined that Dorsey

was not liable for discrimination under § 1983 because he personally participated

in the alleged constitutional violations. Finally, Boone argues that the district court

erroneously granted summary judgment as to her claims of disparate treatment and

retaliation. She further contends that the district court improperly excluded the

affidavits of Lewis, Stephens, and Cannon from consideration. We address each

issue in turn.

               A. Exhaustion

       Boone argues that she sufficiently exhausted her equal protection claims,

and the lack of specificity in the EEOC charge was an error accountable to the

EEOC. Boone also states that she has not abandoned her First Amendment claim,

and she references a first amended complaint.7

       In her EEOC charge, Boone explained, “I had previously complained

internally about sex and race discrimination.” In her intake questionnaire, Boone

wrote that the discriminatory act of which she complained was her termination, and

6
  The reference to equal protection on appeal seems to arise in response to the magistrate judge’s
report in which he considered one of Boone’s claims to raise equal protection issues. It does not
appear that Boone raised an equal protection claim in her complaint.
7
   There is no first amended complaint in the record.

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she mentioned her grievance of “gender discrimination + hostile work

environment, which lead the city to launch an investigation into allegations of

improper managem’t of P.D. by the chief.”

      The district court found this language insufficient to exhaust Boone’s

hostile-work-environment claims. We need not reach this issue because, even if

we were to conclude that Boone exhausted her claims of harassment and hostile

work environment, she failed to raise either of them in her original complaint. In

order to successfully raise a claim for harassment or a hostile work environment, a

plaintiff must attempt to state such a claim in her original complaint. Maniccia v.

Brown, 171 F.3d 1364, 1367 n.1 (11th Cir. 1999). This rule is applicable even

where the plaintiff alleged such a claim in her administrative complaint and EEOC

charge. Id.

      Boone also failed to amend her complaint before, or even after, the

defendants filed their motion for summary judgment. It is well-settled that a

plaintiff may not amend her complaint through argument in a brief opposing

summary judgment. Miccosukee Tribe of Indians of Fla. v. United States, 716

F.3d 535, 559 (11th Cir. 2013). Instead, at the summary judgment stage, a plaintiff

seeking to assert a new claim must amend her complaint pursuant to Federal Rule

of Civil Procedure 15(a). Id. A court is barred from amending a plaintiff’s

complaint sua sponte because the court may not create the impression that it has


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become the plaintiff’s advocate. Id. Therefore, because Boone raised these claims

for the first time in her response to the defendants’ summary judgment motion,

these claims were not properly before the district court. Id.

      Additionally, Boone did not argue her First Amendment claim at the

summary judgment stage, and therefore she abandoned it. See Resolution Trust

Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (explaining that a

plaintiff cannot rely on her pleadings to avoid summary judgment and grounds

alleged in the complaint, but not relied upon at the summary judgment stage, are

deemed abandoned). Although Boone alleges that she raised a First Amendment

claim in an amended complaint, the record does not support her assertion. In any

event, Boone cannot rely upon her pleadings to avoid judgment against her. Id.

Accordingly, we affirm the grant of summary judgment with respect to the

harassment, hostile-work-environment, and First Amendment claims.

             B. Section 1983

      In her response to the summary judgment motion, Boone argued that Dorsey

was liable for the discrimination because he knew of and condoned racial

discrimination. Because she raised this issue for the first time in her response to

the summary judgment motion, and she did not amend her complaint, this issue

was not properly before the court, and summary judgment was proper. Miccosukee

Tribe of Indians of Fla., 716 F.3d at 559.


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       To the extent that Boone now argues that the defendants violated her First

Amendment right when she referred to the HCPD officers as “rednecks,” 8 she

raises this argument for the first time on appeal. Thus, we do not consider it.

Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).

              C. Discrimination and Retaliation

       Boone asserts that the evidence shows that she was treated differently with

respect to her benefits, her duties as a supervisor, and the discipline she received as

a black female. She alleges that white male officers who used racial slurs or acted

inappropriately while off duty were not punished as severely as she was.

       Under Title VII, when direct evidence of discrimination is not available, a

plaintiff may present circumstantial evidence of discrimination sufficient to create

a jury question. E.E.O.C. v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th

Cir. 2002). Where a party seeks to establish discrimination through circumstantial

evidence, we evaluate the claim under the framework established in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). Analysis of a disparate treatment

claim under § 1983 is identical to the analysis under Title VII where the facts on

which the claims rely are the same. Crawford v. Carroll, 529 F.3d 961, 970 (11th

Cir. 2008).


8
   It is not clear whether Boone intended to argue that her termination on this basis violated her
right to free speech or her right to complain of discrimination. She appears to use the arguments
interchangeably.

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      To establish a prima facie case of disparate treatment, the plaintiff must

show: (1) she is a member of a protected class; (2) she was subjected to an adverse

employment action; (3) her employer treated similarly situated employees more

favorably; and (4) she was qualified to do the job. Maniccia, 171 F.3d at 1368. To

establish a prima facie case of discriminatory retaliation, the plaintiff must show:

(1) she participated in a protected activity; (2) she suffered an adverse employment

action; and (3) there was a causal connection between her participating in the

protected activity and the adverse employment action. Goldsmith v. Bagby

Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008).

      Once the plaintiff makes the requisite showing of a prima facie case, and the

employer articulates a legitimate, nondiscriminatory reason for its actions, the

plaintiff must offer evidence that the employer’s alleged reason is a pretext for

discrimination. McDonnell Douglas Corp, 411 U.S. at 802-04. To show pretext,

the plaintiff must show that: (1) the offered reason was false; and (2) the decision

was motivated by some illegal purpose. Springer v. Convergys Customer Mgmt.

Grp. Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) (quotation omitted). A plaintiff

may not “recast an employer’s proffered nondiscriminatory reasons or substitute

[her] business judgment for that of the employer. Provided that the proffered

reason is one that might motivate a reasonable employer, an employee must meet




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that reason head on and rebut it. . . .” Chapman v. AI Transp., 229 F.3d 1012, 1030

(11th Cir. 2000) (en banc).

      Additionally, “establishing the elements of the McDonnell Douglas

framework is not, and never was intended to be, the sine qua non for a plaintiff to

survive a summary judgment motion in an employment discrimination case.”

Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). A

plaintiff may also defeat a summary judgment motion by presenting “a convincing

mosaic of circumstantial evidence” that “raises a reasonable inference that the

employer discriminated against her.” Id.

      Even assuming that Boone established prima facie cases of discrimination

and retaliation, the defendants have offered a legitimate, nondiscriminatory reason

for firing Boone. Boone has not shown, or even argued, that this reason was

pretextual. The defendants indicated that Boone was terminated for her

misconduct with HCPD officers. Because this proffered reason is “one that might

motivate a reasonable employer,” the defendants prevail under the McDonnell

Douglas framework. See Chapman, 229 F.3d at 1030. Additionally, although

Boone presented evidence to show instances of misconduct in the police

department, the circumstantial evidence is not strong enough to raise a reasonable

inference that the City of McDonough actually discriminated against her,

particularly in light of the intervening incidents with the HCPD.


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      As to Boone’s complaint that the district court erred in failing to consider the

affidavits she submitted, the record shows that the district court did consider them.

Even if the factual assertions in the affidavit were accepted as true, they would not

have affected the outcome of this case. Accordingly, we affirm the district court’s

grant of summary judgment.

      AFFIRMED.




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