240 F.3d 1337 (11th Cir. 2001)
Zane W. MASON, Plaintiff-Appellant,v.VILLAGE OF EL PORTAL, Anna Ward, L.D. Kennedy, and Tony Ferguson, Defendants- Appellees.
No. 99-15246.
United States Court of Appeals,Eleventh Circuit.
Feb. 9, 2001.Feb. 21, 2001

Appeal from the United States District Court for the Southern District of  Florida. (No. 98-01658-CV-DLG), Donald L. Graham, Judge.
Before EDMONDSON, BLACK and McKAY*, Circuit Judges.
McKAY, Circuit Judge:


1
Plaintiff is a white male. When his term as chief of police in Defendant  municipality expired, the Village council voted 3-2 not to reappoint him. He  filed a complaint against the municipality pursuant to 42 U.S.C.  1983 alleging  in two separate counts racial discrimination and a violation of his right to  free speech. In a third count he sued the three council members that voted  against reappointing him for a conspiracy to violate his civil rights under   1985(2).


2
After motions for summary judgment were filed, Plaintiff moved to amend the  conspiracy count to allege a  1985(3) claim rather than a  1985(2) claim. The  court denied the motion because it was untimely. Plaintiff then moved to dismiss  that count without prejudice. The court denied the motion. The trial court  granted summary judgment in favor of all defendants on all counts.


3
I. SECTION 1983 CLAIM OF RACIAL DISCRIMINATION


4
After thoroughly examining the record and applying proper summary judgment  standards, the trial court concluded that Plaintiff had established a prima  facie case of racial discrimination under the test established in McDonnell  Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). It  then proceeded to examine the legitimate nondiscriminatory reasons given by the  three Village council members. The record supports the trial court's conclusion  that there remained a triable issue of fact whether council member Kennedy's  reasons were pretextual but that no credible evidence supported the claim that  the other two council members' legitimate reasons were unworthy of belief.  Without such evidence, we will not presume they shared council member Kennedy's  discriminatory motives. See Gattis v. Brice, 136 F.3d 724, 727 (11th Cir.1998);  Hill v. Clifton, 74 F.3d 1150, 1152 (11th Cir.1996). Thus the critical issue on  appeal is whether the alleged racially discriminatory motive of only one member  of a three-member majority of a five-member council can give rise to municipal  liability. We agree with the trial court that it does not. See Church v. City of  Huntsville, 30 F.3d 1332, 1343 (11th Cir.1994).


5
II. SECTION 1983 CLAIM OF RETALIATION FOR FREE SPEECH


6
Plaintiff also claims that he was not reappointed in retaliation for the fact  that he spoke out at the Village's public safety commission (PSC) meeting  against what he perceived to be planned discrimination. At the meeting in  question, the PSC was discussing the replacement of a black police officer who  had resigned. The PSC chair noted that the Village council strongly supported  hiring an Afro-American as the replacement. Plaintiff, on the other hand,  recommended a Hispanic reserve officer for the position and stated in part:


7
I would caution the committee as I've cautioned the council in the past about  the emphasis placed on gender and/or race because those are not the primary  considerations for hiring.


8
Primary considerations, in fact, should not be given any bearing as to gender  and/or race. The reason being that that places us in a precarious position  from a legal standpoint with regard to other protected classes.


9
Def. Exh. 74, PSC Mtg. Tr. at 6.


10
The trial court noted that there followed a contentious exchange between  Plaintiff and several members of the PSC. The council vote not to reappoint  Plaintiff occurred on April 9, 1996, six months after the PSC meeting.


11
To prevail on his free speech retaliation claim, Plaintiff, as a government  employee, had to establish that (1) his speech constituted a matter of public  concern; (2) his First Amendment interests outweighed the Village's interest in  promoting efficient delivery of public services; and (3) his speech played a  substantial part in the council's decision not to reappoint him. See Bryson v.  City of Waycross, 888 F.2d 1562, 1565 (11th Cir.1989). Failure to establish any  one of these three elements is fatal to Plaintiff's claim. The trial court  concluded that Plaintiff failed to establish a triable issue of free speech  retaliation on all three grounds. Specifically, the court determined (1) that,  in context, Plaintiff's speech was not a matter of public concern but rather was  to further his own personal interest in persuading the PSC to follow his hiring  recommendations; (2) that even if Plaintiff's speech were a matter of public  concern it did not outweigh the Village's interest in efficient operation of  government; and, finally, (3) applying the test set out in Mt. Healthy City Sch.  Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977),  that insufficient evidence was presented to show that his speech before the PSC  was a substantial motivating factor in the Village council's decision not to  reappoint him.


12
Because an examination of the record clearly supports the trial court's Mt.  Healthy determination, we need not address the other two reasons.


13
The trial court's correct summary of the record states:


14
[Plaintiff's] statements were made at the October 13, 1995, PSC meeting, yet  the decision not to reappoint him did not occur until April of 1996, almost  six months later. In fact, the only Village Councilmen present at the October  3, 1995, PSC meeting were DeRose, Dervali and Kennedy, two of whom voted in  favor of reappointing Mason. Councilman Ward was not present at that meeting,  nor was Councilman Ferguson, who did not become a member of the Village  Council until January of 1996.... [Plaintiff] has not presented any evidence  to show that Ward or Ferguson had knowledge of the statements made at the  October 13, 1995, meeting. Moreover, the record demonstrates that Kennedy and  ... [Plaintiff] had a longstanding conflict. It is undisputed that Kennedy  wanted ... [Plaintiff] to resign from his position four months prior to ...  [Plaintiff's] speech.


15
Order on Summ. J. at 13-14.


16
As we stated supra, there can be no municipal liability unless all three members  of the council who voted against reappointing Plaintiff shared the illegal  motive. Since there is no evidence that council members Ward or Ferguson even  knew of the statements Plaintiff made at the October 13, 1995, meeting, we  cannot find that all three council members' votes not to reappoint Plaintiff  were based on those statements.

III. SECTION 1985(2) CONSPIRACY

17
Plaintiff claims that the three council members who voted not to reappoint him  conspired to violate his civil rights. We find no abuse of discretion in the  trial court's refusal to permit Plaintiff to amend his complaint, after motions  for summary judgment had been filed, to change this claim from  1985(2) to one  under  1985(3).


18
We agree with the trial court that the  1985(2) claim fails for two reasons.  First, Plaintiff did not allege that the three individual defendants interfered  with the "due course of justice in any State or Territory." 42 U.S.C.  1985(2);  see Kimble v. D.J. McDuffy Inc., 648 F.2d 340 (5th Cir.1981) (a  1985(2)  conspiracy must be intended to interfere with a party or witness's right to  attend or testify in federal court).


19
Second, Plaintiff failed to establish invidiously discriminatory racial animus  behind a conspiratorial decision not to reappoint him. In substance, the trial  court correctly concluded that the record failed to show that at least two of  the council members were motivated by racial animus. Without such evidence,  there can be no showing of conspiracy-the key and necessary element of  Plaintiff's  1985(2) claim.1


20
For the foregoing reasons, the decisions of the trial court dismissing all the  claims are AFFIRMED.



NOTES:


*
 Honorable Monroe G. McKay, U.S. Circuit Judge for the Tenth Circuit, sitting by  designation.


1
 The claim would fail for this reason even if the trial court had allowed  Plaintiff to amend it to state a claim under  1985(3).


