          Case: 18-12497   Date Filed: 02/25/2019   Page: 1 of 10


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-12497
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:17-cv-00159-SCJ



CLARENCE COX,

                                             Plaintiff - Appellant,

versus

CLAYTON COUNTY SCHOOL DISTRICT,

                                             Defendant - Appellee.

                      ________________________

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

                           (February 25, 2019)

Before MARCUS, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:
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      Clarence Cox sued his former employer, the Clayton County School District,

alleging that he was fired because of his candidacy for county sheriff in violation of

his First Amendment rights. See 42 U.S.C. § 1983. The district court granted

summary judgment to the School District, and Mr. Cox now appeals. After

reviewing the record and the parties’ briefs, we affirm.


                                          I


      Under Georgia Law, the Clayton County School District makes its

employment decisions through a governing board. At all times relevant to this

appeal, the board consisted of nine members. Every year, the board must decide

whether to tender a new contract for the ensuing year for each professional employee

of the school district. See O.C.G.A. § 20-2-211.

      In 2013, the School District hired Mr. Cox to serve as Director of Safety and

Security, on the recommendation of then-School Superintendent Luvenia Jackson.

The board then voted to renew Mr. Cox’s contract several times over the following

years. On January 26, 2016, Mr. Cox announced at a meeting of his staff that he

intended to run for Clayton County Sherriff. On February 1, 2016, the board

members held a meeting and reviewed pending contract renewals. They decided not

renew Mr. Cox’s contract.




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      Mr. Cox brought a claim under 42 U.S.C. § 1983, arguing that the board’s

decision to terminate his contract was motivated by the fact that he was running for

sheriff, and therefore violated his right to free speech under the First and Fourteenth

amendments. The district court granted the school district’s motion for summary

judgment, finding that there was no evidence that any board member was motivated

by Mr. Cox’s candidacy when voting to terminate him.

                                          II


      We review the district court’s order granting summary judgment de novo,

applying the same legal standards as the district court, and viewing all facts and

reasonable inferences in the light most favorable to Mr. Cox, the non-moving party.

See Atheists of Florida, Inc. v. City of Lakeland, 713 F.3d 577 (11th Cir. 2013).


                                         III


      Mr. Cox first argues that the district court erred by evaluating his claim under

the four-step analysis ordinarily applied when a government employee alleges that

his termination violated his First Amendment rights. See, e.g., Moss v. City of

Pembroke Pines, 782 F.3d 613, 617 (11th Cir. 2015). We have long applied this

analysis in cases, like this one, “where the state denies discharging the employee

because of speech.” Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir.

1989). See also Carter v. City of Melbourne, 731 F.3d 1161, 1168 (11th Cir. 2013).

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First, we consider whether the plaintiff’s speech was made as a citizen, rather than

as an employee, and whether it implicated a matter of public concern. See Moss, 782

F.3d at 617-18. “If this threshold requirement is met, we then weigh Plaintiff’s First

Amendment interests against the [government]’s interest in regulating his speech.”

Id. at 618. “The[se] first two elements are questions of law designed to determine

whether the First Amendment protects the employee’s speech.” Battle v. Bd. of

Regents for Georgia, 468 F.3d 755, 760 (11th Cir. 2006). At the third stage, we

consider whether the plaintiff’s speech was a substantial motivating factor in his

dismissal. See Anderson v. Burke County, Ga., 239 F.3d 1216, 1219 (11th Cir. 2001).

If the plaintiff succeeds in showing the first three factors, the burden shifts to the

government to show, by a preponderance of the evidence, that it would have

terminated the plaintiff absent the protected speech. See id.


      Here, the district court concluded that Mr. Cox’s claim failed at the third stage

of the analysis, because there was no evidence that the board’s decision was

motivated by his speech. Indeed, the court was doubtful whether any board member

was even aware of Mr. Cox’s candidacy; eight out of the nine board members

provided affidavits explaining that their votes were unrelated to any political

expression on the part of Mr. Cox and were instead motivated by concerns about his

job performance.



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      Mr. Cox contends that, rather than applying this four-step analysis, the district

court should instead have looked to Randall v. Scott, 610 F.3d 701 (11th Cir. 2010).

Randall concerned a § 1983 claim brought by an employee of a district attorney’s

office. The plaintiff alleged that he had been terminated because he was running

against the district attorney’s husband for chairman of the Clayton County Board of

Commissioners. See id. at 714. Because Randall was an appeal from the grant of a

motion to dismiss, we accepted as true the plaintiff’s allegations regarding the

reasons why he was fired. See id. at 705. We held that candidacy is a form of

expression entitled to some degree of First Amendment protection. See id. at 710.

And we reversed the district court’s dismissal of the plaintiff’s claim because,

assuming the plaintiff had indeed been fired for his candidacy, “the state ha[d] no

interest in preventing [him] from running for office.” Id. at 714.


      This case, unlike Randall, comes to us on a motion for summary judgment.

At the summary judgment stage, the district court was not required to accept as true

the allegations in Mr. Cox’s complaint regarding the reason why he was terminated.

And although Randall makes clear that Mr. Cox’s candidacy was entitled to some

degree of First Amendment protection, it does not resolve the central defect in his

claim—namely, the lack of evidence that his termination was motivated by that

candidacy.



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       Mr. Cox also urges us to rely on Underwood v. Harkins, 698 F.3d 1335 (11th

Cir. 2012). Underwood concerned an elected superior court clerk’s decision to

terminate a deputy clerk, who had the same statutory duties and powers as the

superior court clerk and who had run against her in a primary election. “Our holding

. . . [wa]s that an elected official may dismiss an immediate subordinate for opposing

her in an election without violating the First Amendment if the subordinate, under

state or local law, has the same duties and powers as the elected official.” Id. at 1343.

Even if we assume that Underwood is of relevance here, it does not help Mr. Cox.

Again, he did not present any evidence allowing a jury to find that he was terminated

because of his candidacy.

       In sum, we disagree with Mr. Cox that the district court failed to properly

analyze his claim. 1

                                                IV


       Mr. Cox also argues that the district court erred by failing to view the record

in the light most favorable to him, as it was required to do in reviewing the school

district’s motion for summary judgment.



1
 The district court stated in its order that Mr. Cox had to show that the board’s conduct violated a
clearly established right in order to overcome qualified immunity. See D.E. 37 at 13. This was
error. A local government entity like the board is not entitled to assert qualified immunity. See
Owen v. City of Independence, 445 U.S. 622, 649-50 (1980). The error is harmless, however,
because there is no triable issue as to whether the termination was based on Mr. Cox’s candidacy.
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      A district court “shall grant summary judgment 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). The moving party bears the initial burden

of showing that there is no genuine dispute as to any material fact, and may discharge

this burden “by pointing out to the district court . . . that there is an absence of

evidence to support the nonmoving party’s case.” Celotex Corp. v. Cartrett, 477 U.S.

317, 323 (1986). The nonmoving party then has the burden of coming forward with

specific facts showing a genuine dispute. Matsushita Elec. Indus. Co. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986).


      Here, the school district pointed out the absence of evidence that any board

member was aware that Mr. Cox was running for office when the board voted to

terminate him on February 1, 2016. The school district also highlighted the

testimony of the eight board members, who filed affidavits denying that their vote

was motivated by Mr. Cox’s candidacy and enumerating various problems with Mr.

Cox’s job performance. These included Mr. Cox’s general handling of department

funds, his efforts to involve school district police officers in Atlanta-area drug

surveillance activities, complaints from school administrators about Mr. Cox’s

handling of certain security issues, and an increase in the department’s annual budget

under his watch from about $1.5 million to about $7 million.



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      Mr. Cox came forward with two factual assertions in support of his allegation

that the board’s decision to terminate him was motivated by his candidacy. First, he

alleged that an e-mail was sent prior to the board meeting alerting the board members

about his candidacy. But the school district provided the district court with a copy

of the e-mail, which showed that it was sent after—not before—the board’s decision

to terminate Mr. Cox. Second, Mr. Cox pointed to testimony by then-Superintendent

Luvenia Jackson that, prior to the board’s decision, chairwoman Pam Adamson

approached Ms. Jackson and asked her if Mr. Cox planned to run for sheriff.

According to Ms. Jackson, she answered that she did not know. The district court

concluded from this testimony that even after speaking with Ms. Jackson, Ms.

Adamson did not know whether Mr. Cox planned to run. The district court also

observed that even if Ms. Adamson had known about (and her vote had been

motivated by) Mr. Cox’s candidacy, at least seven other board members voted to

terminate Mr. Cox despite not knowing about his candidacy. Given that the decision

to terminate Mr. Cox required only a five-vote majority, the district court concluded

that the board would have reached this decision irrespective of his candidacy. See

Bryson, 888 F.2d at 1565 (explaining that the government prevails if it shows by a

preponderance of the evidence that it would have terminated the employee absent

the employee’s protected speech).




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      We find no error in the district court’s analysis. Absent any indication that

any board member other than Ms. Adamson was even aware of Mr. Cox’s candidacy,

Mr. Cox did not come forward with sufficient facts to show a genuine dispute as to

the reasons for his termination.


      Mr. Cox also argues that the performance problems listed in the board

members’ affidavits are mere pretext. Although he does not dispute the veracity of

the claims the affidavits make about his job performance, he argues that his

complained-about conduct was relatively minor and took place long before the

decision to terminate him. Mr. Cox also points out that then-Superintendent Jackson

consistently gave him high performance ratings during his tenure as Director of

Safety and Security. Therefore, Mr. Cox argues, the decision to fire him was so

heavy-handed as to make the proffered explanations “unworthy of credence and

belief.” Appellant’s Br. 25.

      We decline to assess whether the board’s termination of Mr. Cox was a wise

employment decision. For purposes of Mr. Cox’s § 1983 claim, it suffices to note

that even if we agreed with Mr. Cox that the board’s decision was heavy-handed

under the circumstances, he has not come forward with sufficient facts to establish

a genuine dispute as to whether his termination was motivated by his candidacy.


                                            V


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      For the foregoing reasons, we affirm the district court’s order granting

summary judgment to the Clayton County School District.


      AFFIRMED.




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