            Case: 15-10856   Date Filed: 05/31/2016   Page: 1 of 33


                                                           [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 15-10856
                        ________________________

                 D.C. Docket No. 2:13-cv-00176-MHT-PWG



JAMES LONG,

                                                Plaintiff - Appellant,

versus



ALABAMA DEPARTMENT OF HUMAN RESOURCES,
NANCY BUCKNER,
Commissioner of the Alabama Department of Human
Resources, in her individual and official capacities,
SHARON E. FICQUETTE,
General Counsel for DHR, in her individual and official
capacities,

                                                Defendants - Appellees.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Alabama
                       ________________________

                               (May 31, 2016)
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Before ROSENBAUM, JULIE CARNES, and DUBINA, Circuit Judges.

JULIE CARNES, Circuit Judge:

      Plaintiff James Long appeals the district court’s order granting summary

judgment on his race discrimination and retaliation claims under 42 U.S.C. § 1981

and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and

dismissing without prejudice his state law claim under the Alabama State

Employees Protection Act (“ASEPA”), Alabama Code § 36-26A-1 et seq. After a

careful review of the record, and with the benefit of oral argument, we affirm the

district court’s grant of summary judgment on Plaintiff’s federal race

discrimination claim and reverse its grant of summary judgment on Plaintiff’s

federal retaliation claim. We remand Plaintiff’s retaliation claim and his state law

claim to the district court for proceedings consistent with this opinion.

                                 BACKGROUND

I.    Facts

      This case arises from Plaintiff’s employment with and termination from the

Alabama Department of Human Resources (“the Department”). The Department is

a state agency that administers family and child welfare programs in Alabama.

Plaintiff, a black male, worked as an attorney in the Department’s legal department

from 1983 until he was terminated in 2012. At all times relevant to this litigation,

Nancy Buckner was the Department’s Commissioner. As Commissioner, Buckner


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was the final decisionmaker as to all Department employment decisions. Sharon

Ficquette was the Department’s general counsel and Plaintiff’s direct supervisor

from 2005 until he was terminated.

       A.     Plaintiff’s Hiring and Promotions

       Plaintiff was hired by the Department as an Attorney I, which was an entry

level position under Alabama’s merit civil service system. He was promoted to

Attorney II in 1984 and to Attorney III in 1987. Attorney III is the highest merit

rank Plaintiff obtained while he worked at the Department. 1 However, Plaintiff

received a significant promotion outside the merit system in 2006, when he was

appointed as the Department’s Deputy Attorney General (“Deputy AG”) by then

Alabama Attorney General Troy King. As Deputy AG, Plaintiff served directly

under the Department’s general counsel, Ms. Ficquette.

       Plaintiff was in the Deputy AG position when he was terminated. His duties

in that position included representing the Department and its staff in litigation,

reviewing and drafting legislation pertaining to the Department’s operations,

supervising the Montgomery Regional Office and the Office of Criminal History

Checks, and providing legal advice to Department staff members on issues related

to their duties.

       B.     The Unpaid Invoice Dispute

1
  The general counsel is the only attorney in the Department’s legal department who holds the
highest merit designation of Attorney IV.
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             1.     Alabama’s Background Check Law

      Alabama passed a law in 2000 requiring the Department to obtain criminal

history information on individuals licensed to work in certain child care facilities

and Department-sanctioned foster and adoptive homes. To meet the Department’s

obligations under the law, Plaintiff established the Office of Criminal History

Checks (“OCHC”) in 2001. Pursuant to the law, OCHC sent requests for criminal

history information to the Department of Public Safety (“Public Safety”). The

latter ran its own background checks for crimes committed in Alabama and

obtained information from the FBI for crimes committed nationwide. When

requested, Public Safety provided criminal history information to OCHC and then

invoiced OCHC for these services.

             2.     Invoice Backlog

      Plaintiff hired Carolyn Rawls, a black female, to be the program manager of

OCHC in 2003. In 2008, during Rawls’s tenure as program manager, a dispute

arose between Public Safety and OCHC concerning a backlog of unpaid invoices.

The dispute escalated and ultimately was submitted to the Alabama Board of

Adjustment (“Board”), a state agency charged with settling monetary claims

against other state agencies.

      During this adjustment process, Rawls was asked on two occasions to

provide information necessary to verify claims for payment that Public Safety had


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submitted to the Board. According to Department general counsel Ficquette,

Rawls’s responses were untimely and incomplete. Ficquette also became aware,

while the adjustment process was ongoing, that Rawls had directly told a Public

Safety official that Public Safety would be eligible for payment in a specified

amount after the adjustment hearing. Ficquette construed Rawls’s statement to

Public Safety official as a promise of payment that Rawls was not authorized to

make on behalf of the Department. Ficquette viewed the statement as improper

and stated that it compromised the Department’s relationship with Public Safety.

             3.    February 11, 2009 Reprimands

      In early 2009, Ficquette reviewed the backlogged Public Safety invoices and

the system Rawls had created to reconcile them with payments already made by

the Department. Based on her review, Ficquette concluded that the reconciliation

system was inadequate. As a result, on February 11, 2009, Ficquette issued a

written reprimand to Rawls charging her with (1) failing to develop an adequate

means of clearing invoices and paying bills to Public Safety, (2) failing to respond

to requests for information necessary to resolve the invoice dispute, and (3)

inappropriately communicating directly with Public Safety concerning its claims

for payment. The reprimand stated that Rawls would receive a seven-point

deduction on her next performance appraisal.




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         Ficquette also reprimanded Plaintiff on February 11, 2009 in connection

with the OCHC unpaid-invoice dispute. In Plaintiff’s reprimand, Ficquette noted

that OCHC had experienced recurring problems with bill reconciliation and that

Rawls, while under Plaintiff’s supervision, had (1) failed to respond appropriately

to requests for information necessary to resolve the current dispute with Public

Safety and (2) improperly communicated directly with Public Safety during the

adjustment process. 2 The reprimand charged Plaintiff with inadequate supervision

of OCHC, and stated that Plaintiff would receive a seven-point deduction on his

next performance appraisal.

         Also in February 2009, Plaintiff and Rawls were removed from their OCHC

supervisory roles and replaced in those roles by white employees Tommy Crabtree

and Nancy Jinright. Although Plaintiff no longer supervised OCHC, he remained

in his Deputy AG position. Rawls was briefly transferred to another section within

the Department, but she resigned a few months after the transfer.

                4.     Plaintiff and Rawls’s EEOC Charges

         Plaintiff and Rawls filed EEOC charges against the Department alleging that

the February 2009 reprimands were racially motivated. Although Plaintiff dropped

his charge related to the 2009 reprimand, Rawls pursued her charge and filed a

federal race discrimination suit against the Department on January 3, 2011. See


2
    Ficquette had advised Plaintiff in April 2006 that OCHC needed closer supervision.
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Rawls v. Alabama Dep’t of Human Res., 2012 WL 1319495 (M.D. Ala. 4/17/12).

In support of the claims asserted in her suit, Rawls alleged that she was removed

from her position at OCHC so that her job could be given to Crabtree, a white

employee with less experience, education, and seniority.

             5.    Rawls’s February 18, 2009 Performance Appraisal

      During Rawls’s tenure at OCHC, Plaintiff was her rating supervisor and

Ficquette was her reviewing supervisor. As rating supervisor, Plaintiff was

responsible for conducting Rawls’s yearly performance appraisal in consultation

with Ficquette. The Department’s written policy stated that rating and reviewing

supervisors should agree on the results of an appraisal before the appraisal was

discussed with the employee, and that the appraisal should then be signed by the

reviewing supervisor and sent to the Department’s personnel office.

      Plaintiff met with Rawls on February 18, 2009 to conduct her appraisal for

the January 1, 2008 to January 1, 2009 period. Instead of deducting seven points

in the appraisal for the reprimand Rawls received on February 11, 2009, Plaintiff

indicated that Rawls had a zero disciplinary score, and he also gave her a total

score of “exceeds standards” for job performance. Plaintiff testified that he did not

deduct the points because he (1) did not agree with the reprimand and believed it




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was illegal under Title VII and (2) thought the deduction was not required because

the reprimand was issued outside the rating period that ended on January 1, 2009.3

       Plaintiff did not confer with Ficquette before conducting Rawls’s appraisal,

and he did not obtain Ficquette’s signature on the appraisal after he completed it.

In addition, the appraisal was not sent to the Department’s personnel office, as

required by Department policy. Plaintiff testified, however, that it was not

common practice for him to discuss an employee appraisal with Ficquette prior to

meeting with the employee and that he returned Rawls’s 2009 appraisal to the

appropriate Department staffer, who should have forwarded it to Ficquette and

then on to the personnel office.

       Rawls received a copy of the appraisal on the date Plaintiff discussed it with

her, and she submitted it in support of her EEOC charge against the Department.

Neither Ficquette nor Buckner was aware of the contents of the appraisal until it

was produced during discovery in the Rawls litigation.

       C.      Beason-Hammon Act Dispute

       Plaintiff became embroiled in another dispute with Ficquette in late 2011.

Earlier that year, Alabama passed the Beason-Hammon Act, which imposed



3
  On the second point, the Department’s written policy did not expressly require a deduction for
reprimands issued outside the rating period. Ficquette testified that the points should have been
deducted from Rawls’s 2009 appraisal because the conduct that resulted in the reprimand
occurred during the rating period, but Plaintiff testified that a deduction based on a reprimand
issued outside the rating period would have violated personnel rules.
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citizenship and immigration-status verification requirements on state agencies.

Plaintiff and Ficquette were asked to provide legal opinions as to how the Act

impacted the Department, and they disagreed about whether its requirements

applied to foster home approvals and church day-care exemptions issued by the

Department, with Long believing these types of approvals were “licenses” subject

to the requirements of the Act, and Ficquette believing they were exempt.

      In October 2011, Department management adopted Ficquette’s opinion as

the official Department policy. That is, management determined that the

Department would not apply the verification requirements of the Beason-Hammon

Act to foster home approvals and church day-care exemptions. Plaintiff responded

to the decision by sending an email to twenty people, including Ficquette and other

high-ranking Department employees, expressing his disagreement with Ficquette’s

interpretation of the Act and its implications for the Department. Plaintiff

acknowleged in the email that a decision had been made to adopt Ficquette’s

position on the matter, but noted that he continued to “personally be of the opinion

that foster homes and church exemptions are types of official permission and

therefore licenses” subject to the requirements of the Act.

      Ficquette advised Plaintiff in a November 7, 2011 memorandum of

instruction that she thought his email was inappropriate. In the memorandum,

Ficquette admonished Plaintiff that he should have expressed his disagreement as


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to the interpretation of the Beason-Hammon Act in a confidential statement rather

than in an email distributed to high-ranking Department officials. She reminded

Plaintiff that the legal department does not set policy, but rather provides legal

opinions to Department management for its consideration. She stated that

Plaintiff’s provision of divergent legal advice as to the interpretation of the Act

created confusion within the Department, and that he had been disruptive and

insubordinate.

      Plaintiff responded to the November 7 memorandum of instruction with a

notice of grievance and a memorandum defending his actions. In his response,

Plaintiff demanded that the November 7 memorandum be withdrawn and

destroyed, and he formally requested a grievance proceeding under the

Department’s personnel rules. After reviewing the response and meeting with

Plaintiff, Ficquette advised him that she believed the November 7 memorandum of

instruction was proper and that the matter was not grievable because it did not

involve a formal disciplinary action.

      D.     The Default Judgment

      Also in late 2011, while the Beason-Hammon Act dispute was ongoing,

Ficquette learned that Plaintiff was responsible for a default judgment that had

been entered against the Department and Commissioner Buckner in a pending

lawsuit. Plaintiff was assigned to handle the suit on August 9, 2011, the date the


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Department was served with the complaint. However, he did not file a responsive

pleading or take any other action to defend the Department and Buckner, resulting

in the entry of a default judgment against them on October 27, 2011.

       Ficquette learned about the default judgment on November 2, 2011. She

discussed the issue with Plaintiff a few days later and instructed him to file a

motion to set aside the default. Plaintiff filed the motion, which ultimately was

granted. In his discussion with Ficquette, Plaintiff explained that he had failed to

file a responsive pleading because he had confused the suit with another case

involving the same plaintiff. Ficquette says she did not believe this was a

justifiable explanation. She reprimanded Plaintiff on December 13, 2011 in

connection with the default judgment.

       Plaintiff responded to the December 13 reprimand by filing a state personnel

complaint against Ficquette. In the complaint, Plaintiff alleged that Ficquette had

(1) illegally accused him of insubordination in connection with the Beason-

Hammon Act dispute and (2) discriminated and retaliated against him by

reprimanding him in connection with the default judgment.4 The state personnel

board dismissed the complaint for lack of jurisdiction.




4
  Plaintiff later amended his personnel complaint to allege that Ficquette had retaliated against
him for participating in the Rawls lawsuit.
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      E.     Plaintiff’s Participation in the Rawls Case

             1.    Rawls’s Deposition

      Around the same time Plaintiff was dealing with the Beason-Hammon Act

dispute and the default judgment issue, discovery began in the race discrimination

suit Rawls had filed against the Department. Retained counsel for the Department

deposed Rawls on December 18, 2011.

      Rawls testified at her deposition that Plaintiff had told her he had

“confidential information” that would help her prove Ficquette and Buckner had

discriminated against her. According to Rawls, Plaintiff had also commented more

generally that he did not believe Rawls had been treated fairly. Rawls said that

Plaintiff had not provided specific names or given her any of the information he

referenced, but he had implied he would disclose it at the appropriate time.

             2.    Plaintiff’s First Deposition in Rawls

      Based on Rawls’s testimony, the Department’s counsel subpoenaed Plaintiff

to give a deposition in the Rawls suit on January 10, 2012. Plaintiff appeared at

the deposition and gave extensive testimony against the Department. For example,

Plaintiff testified that the reprimands he and Rawls received in 2009 in connection

with the OCHC unpaid-invoice dispute were racially motivated. He explained how

certain documents, including criminal history records he had brought to the




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deposition, verified this allegation. And he stated, more pointedly, that he believed

Ficquette had intentionally discriminated against him and Rawls.

             3.    Plaintiff’s Production of RAP Sheets

      Plaintiff brought eight boxes of Department documents he had gathered

from his office to his first deposition in the Rawls case. The deposition was held

open by agreement of the parties so that the Department’s attorney could review

the documents. During his review, counsel discovered that the documents included

unredacted Reports of Arrest and Prosecution (“RAP”) sheets that had been

collected by OCHC pursuant to the background-check law and that contained

social security numbers and other confidential information. The attorney returned

the RAP sheets to the Department.

      Sometime in January 2012, Ficquette received the RAP sheets and learned

that Plaintiff had produced them at his deposition. Ficquette was concerned that

Plaintiff had produced RAP sheets without advising deposing counsel of their

confidential nature. Presumably based on her review of Plaintiff’s deposition

testimony, Ficquette also learned that Plaintiff had stored the RAP sheets for years

in unlocked storage in his Department office. According to Ficquette, Plaintiff’s

maintenance of the RAP sheets in this manner violated federal and state law, as

well as Department policy. Ficquette told Commissioner Buckner that Plaintiff

had stored the RAP sheets in his office and produced them at his deposition


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without advising the deposing attorney that they were confidential. Buckner says

she agreed with Ficquette that Plaintiff’s failure to secure the RAP sheets and

maintain their confidentiality violated Department policy.

      There is a dispute between the parties about whether Plaintiff’s manner of

storing RAP sheets violated any law or policy. Alabama law required RAP sheets

to be kept confidential, but did not impose any other specific security

requirements. See Ala. Code § 38-13-8. Tommy Crabtree implemented

procedures designed to ensure the confidentiality of RAP sheets in October 2009,

including that they be maintained in a “secure, locked file” and that they not be

“combined or otherwise mingled” with other records. But these procedures were

not in place when Plaintiff was responsible for collecting the RAP sheets he

produced in his deposition in the Rawls case. Defendants have not cited any other

policy or law that expressly required RAP sheets to be kept in locked storage,

although Ficquette asked for research on the issue in February 2012. Nevertheless,

Plaintiff’s disclosure of RAP sheets at his deposition without making any effort to

maintain their confidentiality violated Alabama law. See id. (a), (c).

             4.    Plaintiff’s Use Of A Juvenile Pleading

      Around the same time she discovered Plaintiff had produced RAP sheets in

the Rawls litigation, Ficquette became aware that Plaintiff had also submitted a

juvenile pleading as an exhibit in support of his state personnel complaint against


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Ficquette. Ficquette claims it was improper for Plaintiff to use the pleading in this

manner and that it caused disruption in the office because Plaintiff had

impermissibly accessed the work folders of another Department attorney to obtain

the pleading. She advised Buckner about this issue.

             5.     Plaintiff’s February 2012 EEOC Charge

      On February 6, 2012, a few weeks after his first deposition in Rawls,

Plaintiff filed an EEOC charge alleging race discrimination and retaliation.

Plaintiff claimed in the charge that Defendants had reprimanded him on December

13 in retaliation for complaining about race discrimination against himself and

Rawls and to silence him in his upcoming deposition in Rawls.

             6.     Plaintiff’s Second Deposition in Rawls

      The Department’s attorney reconvened and concluded Plaintiff’s deposition

on February 16, 2012. At his second deposition, Plaintiff provided additional

testimony and documents that supported Rawls’s claims. He also testified that he

believed he had been retaliated against and questioned in a threatening manner

during his first deposition in order to intimidate him and chill his testimony in

Rawls.

      F.     Buckner’s Investigation

      Commissioner Buckner says she developed questions about Plaintiff’s

conduct in early 2012 as a result of the reports she had received from Ficquette


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concerning Plaintiff’s production of RAP sheets and misuse of a juvenile pleading,

as well as the manner in which he had conducted Rawls’s 2009 appraisal. Buckner

gained access to Plaintiff’s Department email account and personally reviewed the

content of some of his emails. During her review, Buckner found a message to an

individual at a state technical college, sent from Plaintiff’s Department account and

signed with his professional Deputy AG title, inquiring about having burglar bars

installed at Plaintiff’s home.

      Buckner claims she widened her investigation because she thought the

burglar bar email was improper for several reasons, including that it was not job

related. She directed a search of Plaintiff’s Department computer using the terms

“state personnel board,” “Carolyn Rawls,” “retaliation,” “racial discrimination,”

and “Ficquette.” Through her expanded search, Buckner discovered that Plaintiff

had used his Department computer to prepare pleadings in his personnel complaint

against Ficquette. Plaintiff acknowledges that he used his Department computer

and other Department resources to prepare documents in support of his personnel

complaint, and that he worked on the complaint during regular work hours and

while in his Department office.




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      G.     Plaintiff’s Termination

             1.    The Charge Letter

      On March 9, 2012, Buckner advised Plaintiff that she was seeking his

termination on numerous charges, including:

      (1)    failing to properly maintain and secure RAP sheets that contained
             confidential information and producing RAP sheets at his deposition
             in the Rawls case without advising the Department’s private attorney
             that the records needed to be secured and kept confidential;

       (2)   breaching confidentiality rules by filing a sealed juvenile pleading in
             an unrelated public proceeding and failing to seek protection for the
             document by submitting it under the protective order in the case;

       (3)   using his office for personal gain by sending an email from his
             Department computer with his professional Deputy AG signature
             requesting installation of burglar bars at his home;

      (4)    falsifying Rawls’s February 2009 appraisal by failing to note that
             Rawls had received a written reprimand on February 11, 2009, failing
             to have the appraisal signed by Ficquette, and failing to submit the
             appraisal to the Department’s personnel office; and

      (5)    using his state computer and other Department materials for matters
             unrelated to his work duties at the Department, including preparation
             of documents in support of his personnel complaint against Ficquette.

Buckner’s charge letter quoted extensively from Plaintiff’s first deposition in

Rawls in support of the above allegations.

             2.    Plaintiff’s March 2012 EEOC Charge

      A few weeks after he received the above letter, Plaintiff filed another EEOC

charge, dated March 28, 2012. In this charge, Plaintiff alleged that his proposed


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termination was racially motivated and that Defendants also were retaliating

against him for opposing discrimination against Rawls and for participating in her

race discrimination case.

             3.     Plaintiff’s Termination Hearing

      Plaintiff’s termination hearing was held on April 4, 2012. Although he was

advised of his right to offer argument and evidence in his defense, Plaintiff chose

not to attend. Pursuant to Department policy, the hearing was conducted by an

impartial hearing officer, Mark Williams. Thereafter, the hearing officer issued a

written decision in which he recommended Plaintiff’s termination on multiple

grounds.

      First, the hearing officer found that Plaintiff’s termination was warranted

because he had falsified records. This finding was based on Plaintiff’s failure to

(1) impose the seven-point deduction on Rawls’s 2009 appraisal, (2) obtain

Ficquette’s signature on the appraisal, and (3) submit the appraisal to the

Department’s personnel office. The hearing officer found that the deduction was

required by Department policy and that Plaintiff, as Rawls’s rating supervisor, was

responsible for ensuring that it was applied. The officer concluded that Plaintiff’s

failure to apply the deduction, and his subsequent failure to process the evaluation

through the proper channels, was deceptive and constituted a falsification of

records that justified termination under the state personnel rules.


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      Second, the hearing officer found that Plaintiff’s termination was warranted

because of his unauthorized use of his Department computer. The officer noted

that Plaintiff had used the computer for personal reasons numerous times,

including one time when he sent an email under his professional signature to

inquire about getting burglar bars installed at his home and many other times when

he used the computer to prepare documents related to his personnel complaint

against Ficquette. He determined that Plaintiff’s repeated use of his Department

computer for personal reasons violated Department policy and justified termination

under the state personnel rules.

      Third, the hearing officer found that Plaintiff’s termination was warranted

because of his improper handling and disclosure of RAP sheets. The officer

credited evidence presented at the hearing that Plaintiff had supervisory authority

over the proper maintenance of RAP sheets, and that RAP sheets were required by

Department policy to be “kept in a locked file cabinet behind a locked door.” He

concluded that Plaintiff had committed a serious violation of personnel rules by

failing to keep these documents in a properly secured location and by producing

them in the Rawls litigation without any effort to maintain their confidentiality.

      Finally, the hearing officer concluded that Plaintiff had “exhibited serious

mistakes in judgment that disrupted the workplace” at the Department. As one

example of Plaintiff’s bad judgment, the officer stated that Plaintiff had “chose[n]


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to depart from his role as a key, senior level attorney for [A]DHR and actually

opposed [A]DHR’s position in sworn testimony and in the transmittal of

documents.” According to the officer, the “net effect” of Plaintiff’s conduct was

disruptive to the workplace and warranted Plaintiff’s termination.

             4.     Plaintiff’s Termination

      Commissioner Buckner informed Plaintiff in a letter dated April 20, 2012

that the hearing officer had recommended his termination. Buckner attached a

copy of the officer’s recommendation and stated that she agreed with it. Buckner

did not specify a particular ground upon which she was relying to support

Plaintiff’s termination, but she did not reject any of the stated grounds. Buckner

subsequently testified in this litigation that she agreed with the hearing officer’s

analysis and with his recommendation that each of the cited grounds warranted

Plaintiff’s termination, and that “collectively they presented an overwhelming case

for termination.”

             5.     Plaintiff’s Replacement

      After Plaintiff’s termination, Commissioner Buckner requested that the

Attorney General appoint Felicia Brooks to serve as the Deputy AG for the

Department. Brooks is a black female. She was appointed to the Deputy AG

position pursuant to Buckner’s request.




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              6.      Plaintiff’s Retirement Benefits

       In response to his charge letter and prior to his termination hearing, Plaintiff

advised Buckner that he had applied for retirement effective May 1, 2012. He

requested that (1) the April 4th termination hearing be cancelled, (2) he be allowed

to remain on paid leave until his retirement, and (3) his personnel file indicate that

he was eligible for reemployment. Commissioner Buckner denied Plaintiff’s

request. Although Plaintiff has received retirement benefits since his retirement in

May 2012, Buckner’s denial of his request to retire in lieu of dismissal resulted in

his loss of $26,553.45 in sick leave benefits.5

              7.      Plaintiff’s April 2012 EEOC Charge

       After his termination, Plaintiff filed another EEOC charge dated April 27,

2012. In this charge, Plaintiff alleged that his termination was racially

discriminatory and retaliatory and that the conversion of his retirement into a

termination resulted in his loss of approximately $25,000 in sick leave benefits.

II.    Procedural History

       Plaintiff subsequently initiated this lawsuit, asserting race discrimination and

retaliation claims against the Department under Title VII, race discrimination and

retaliation claims against Buckner and Ficquette individually under §§ 1981 and

1983, and an Alabama state law claim against Buckner and Ficquette, individually

5
 Department employees are paid fifty percent of their accumulated sick leave when they retire.
Employees who are dismissed are ineligible for that payment.
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and in their official capacities. 6 In support of his claims, Plaintiff alleged he was

reprimanded, disciplined, denied benefits, and ultimately terminated because of his

race and in retaliation for (1) opposing discrimination against Rawls and

participating in the Rawls litigation and (2) briefing a state personnel complaint

against Ficquette.

       Plaintiff moved for partial summary judgment on his Alabama state law

claim against Buckner. Defendants moved for summary judgment on all of

Plaintiff’s claims. The case was referred to a magistrate judge, who issued a report

and recommendation (“R&R”) recommending that Plaintiff’s motion be denied

and that Defendants’ motion be granted in full.

       Specifically, the magistrate judge concluded that Plaintiff could not recover

on his Alabama state law claim because he was not a classified state employee

when he was terminated. Alternatively, the magistrate judge concluded that

Plaintiff had not engaged in protected conduct as defined under Alabama law.

       As to Plaintiff’s federal race discrimination claim, the magistrate judge

found no evidence from which a jury reasonably could infer a racially




6
  Plaintiff also asserted a First Amendment retaliation claim against Buckner and Ficquette. The
magistrate judge concluded that Plaintiff’s First Amendment claims failed as a matter of law
under a Pickering analysis, and that Buckner and Ficquette were entitled to qualified immunity
on the claims. The district court agreed that qualified immunity precluded relief on the First
Amendment claims. Plaintiff does not appeal that ruling.
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discriminatory motive for Plaintiff’s termination.7 Assuming without deciding that

Plaintiff had nevertheless established a prima facie case of discrimination, the

magistrate judge found that Plaintiff had failed to present any evidence to rebut the

Department’s explanation that Plaintiff was terminated not because of his race but

because he violated work rules, particularly rules requiring that RAP sheets be

treated as confidential information. According to the magistrate judge, Plaintiff’s

conduct with regard to the RAP sheets indisputably was a terminable offense.

       Addressing Plaintiff’s retaliation claim, the magistrate judge rejected

Plaintiff’s argument that he had produced direct evidence of retaliation and applied

the McDonnell Douglas burden-shifting framework. The magistrate judge

assumed without deciding that Plaintiff had raised a prima facie case of retaliation.

Nevertheless, the magistrate judge determined that it was undisputed that the

Department had terminated Plaintiff for non-retaliatory reasons, including (1) his

failure to properly maintain the RAP sheets in accordance with Department policy

and Alabama law and (2) disloyalty to the Department that was inconsistent with

Plaintiff’s continued legal representation of the agency. As such, the magistrate

judge concluded that Plaintiff could not prevail on his retaliation claim.



7
  The magistrate judge concluded that Plaintiff had abandoned his race discrimination and
retaliation claims to the extent those claims relied on any adverse action other than his
termination. The district court agreed with that conclusion. Plaintiff does not raise it as an issue
on appeal.
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       The district court adopted the magistrate judge’s R&R recommending

summary judgment as to all claims, except that the court did not agree that

summary judgment should be granted on the state law claim. The district court

agreed with the magistrate judge’s reasoning as to the race discrimination and

retaliation claims, and granted summary judgment to Defendants on those claims.

Having granted judgment on all of Plaintiff’s federal claims, the district court

determined it should decline to exercise jurisdiction over the remaining state claim.

The court thus dismissed the state claim without prejudice to permit its refiling in

state court.

                                   DISCUSSION

I.     Standard of Review

       We review the district court’s summary judgment ruling de novo, construing

the evidence in the light most favorable to Plaintiff and drawing all reasonable

inferences in his favor. Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316,

1318 (11th Cir. 2012). We apply the same standard as the district court. Id.

Summary judgment is only appropriate if there are no genuine issues of material

fact and Defendants are “entitled to judgment as a matter of law.” Id. (quoting

Fed. R. Civ. P. 56(a)) (internal quotation marks omitted).




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II.    Plaintiff’s Retaliation Claim

       Title VII prohibits an employer from retaliating against an employee

because he “has opposed any practice made an unlawful employment practice” by

Title VII or because he “has made a charge, testified, assisted, or participated in

any manner in an investigation, proceeding, or hearing” under Title VII. 8 42

U.S.C. § 2000e-3(a). To prevail on a Title VII retaliation claim, an employee must

prove that (1) he engaged in conduct protected by the retaliation provision, (2) he

suffered a materially adverse employment action, and (3) there was a causal

relationship between the two. See Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d

1249, 1258 (11th Cir. 2012). The relationship required by the third prong is “but-

for” causation. Univ. of Texas SW Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534

(2013). That is, the employee must show that he would not have suffered the

adverse action if he had not engaged in the protected conduct. Id. at 2533.

       Testifying in a Title VII proceeding constitutes participation protected

against retaliation under 42 U.S.C. § 2000e-3(a). Plaintiff thus engaged in

protected conduct when he testified in the Rawls case in January and February of




8
  Title VII and § 1981 “have the same requirements of proof and use the same analytical
framework.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). See also
Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1277 (11th Cir. 2008) (noting that a
retaliation claim has the same elements whether it arises under Title VII or § 1981). Thus, we
analyze Plaintiff’s Title VII claim with the understanding that our analysis applies to his § 1981
claim as well.
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2012. 9 See Merritt v. Dillard Paper Co., 120 F.3d 1181, 1186 (11th Cir. 1997)

(“Under the plain language of the [participation clause], those who testify or

otherwise participate in a Title VII proceeding are protected from retaliation for

having done so.”). Plaintiff suffered a materially adverse action when his

employment was terminated in April 2012, a few months after his second

deposition in Rawls. The determinative question for this appeal is whether

Plaintiff has presented evidence sufficient to allow a jury to determine that his

testimony in Rawls was a “but-for” cause of his termination. See Nassar, 133 S.

Ct. at 2534. We hold that he has produced sufficient evidence to withstand

Defendants’ motion for summary judgment.

       A plaintiff may rely on direct or circumstantial evidence to show that an

adverse action was retaliatory. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079,

1085 (11th Cir. 2004). Direct evidence is “evidence, which if believed, proves”

retaliation “without inference or presumption.” Merritt, 120 F.3d at 1189

(quotation marks omitted). For example, we have characterized the following

statement as direct evidence of retaliation: “[Y]our deposition was the most

damning to [the company’s] case, and you no longer have a place here at [the


9
  Plaintiff also arguably engaged in conduct protected by the opposition clause during the
deposition and at various other times during his employment. We limit our discussion to his
conduct under the participation clause because its protection is more expansive than that of the
opposition clause. See E.E.O.C. v. Total Sys. Servs. Inc., 221 F.3d 1171, 1175–1176 (11th Cir.
2000) (discussing the “two different levels of protection” offered by the participation and
opposition clauses).
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company].” Id. at 1190. Summary judgment is not appropriate if the plaintiff has

presented direct evidence. Id. at 1189.

      When a plaintiff relies only on circumstantial evidence, we generally apply

the McDonnell Douglas burden-shifting framework to determine whether his claim

should survive a motion for summary judgment. See Brown v. Ala. Dep=t of

Transp., 597 F.3d 1160, 1181 (11th Cir. 2010). Under that framework, the

plaintiff must first establish a prima facie case that an adverse action was

retaliatory. Id. The burden then shifts back to the employer to articulate a

legitimate, non-retaliatory reason for the adverse action, which the plaintiff has an

opportunity to rebut with evidence of pretext. Id. at 1181–1182. Although we

often find it to be useful, we have recognized that the McDonnell Douglas

framework “is not the exclusive means” of prevailing on a Title VII claim based on

circumstantial evidence. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 n.3

(11th Cir. 2005). A plaintiff’s claim will also survive summary judgment if he

otherwise presents “enough circumstantial evidence to raise a reasonable

inference” that an adverse action was taken against him in violation of Title VII.

Hamilton, 680 F.3d at 1320.

      The evidence in this case is sufficient to at least raise the inference.

Commissioner Buckner began the investigation that led to Plaintiff’s termination

within a month of Plaintiff’s first deposition in Rawls, and just prior to his second


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deposition. During the investigation, Buckner searched Plaintiff’s Department

computer using the search terms “Carolyn Rawls,” “Retaliation,” “Racial

Discrimination,” and “Ficquette.” A reasonable jury could infer from the timing

and the focus of the investigation that it was prompted by Plaintiff’s testimony that

Ficquette had discriminated against Rawls, and not just by the discovery of facts

during Plaintiff’s deposition suggesting that he had engaged in other misconduct,

such as improperly storing and producing RAP sheets or failing to follow protocol

with respect to Rawls’s 2009 appraisal.

       A few weeks after Plaintiff’s second deposition in Rawls, Buckner sent him

a charge letter advising him that she was seeking his termination. The hearing

officer subsequently held a hearing and issued a written decision recommending

Plaintiff’s termination on multiple grounds, including “disruptive conduct” in the

workplace. As an example of disruptive conduct, the hearing officer stated that

Plaintiff had “actually opposed [A]DHR’s position in sworn testimony.” In several

other statements made in support of the disruptive conduct ground, the hearing

officer suggested 10 that Plaintiff acted improperly by assisting Rawls in her race

discrimination case and opposing the Department in litigation. This officer was

not the decision-maker. That role fell to Commissioner Buckner, but she accepted

10
   The parties dispute whether the hearing officer’s statements constitute direct evidence of
retaliation. We do not need to resolve the dispute to decide this appeal. Regardless of how it is
characterized, the evidence is sufficient to raise a triable issue of fact as to whether Plaintiff’s
testimony in Rawls was a but-for cause of his termination.
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the hearing officer’s recommendation in full and without modification. She also

testified in this litigation that she believed Plaintiff had been disloyal by “get[ting]

involved” in Rawls’s case against the Department. Based on all of this evidence, a

jury reasonably could infer that Plaintiff would not have been terminated but for

his deposition testimony in Rawls.

      In fact, the magistrate judge seemed to accept that Plaintiff was fired, in part,

because of his participation in Rawls. He nevertheless recommended granting

summary judgment on Plaintiff’s retaliation claim, suggesting that Plaintiff’s

position as a Department attorney, and his corresponding duty of loyalty, rendered

his participation in Rawls a terminable offense. There is no authority to support

such a limitation on the scope of Title VII’s retaliation provision under the facts of

this case. Plaintiff did not represent the Department in the Rawls matter. His

testimony during a deposition in that litigation, as a fact witness and pursuant to a

subpoena, falls within the plain language of the participation clause and, under our

controlling precedent, was not a proper ground for his termination. See Merritt,

120 F.3d at 1189.

      The magistrate judge also indicated that summary judgment was warranted

by evidence showing Plaintiff was terminated for legitimate reasons, particularly

his improper maintenance and disclosure of RAP sheets. We agree with the

magistrate judge that the Department can legitimately fire an employee for various


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types of workplace misconduct, including improper maintenance of RAP sheets,

insubordination as reflected by the employee’s handling of the appraisal of an

employee under his supervision, and unauthorized use of the employee’s

Department computer for personal matters. But we do not find the record evidence

here sufficient to establish, as a matter of law, that Defendants did fire Plaintiff for

these legitimate reasons. As discussed, there is conflicting evidence as to whether

Plaintiff violated any law or policy in his manner of storing RAP sheets.

Moreover, there is evidence suggesting that Plaintiff’s termination was at least

partially motivated by his protected deposition testimony in Rawls. Accordingly, it

is for the jury to decide whether, notwithstanding the RAP sheet issue and other

alleged misconduct, Plaintiff’s testimony in Rawls was the “but-for” cause of his

termination.

III.   Plaintiff’s Race Discrimination Claims

       Title VII prohibits employment discrimination on the basis of race, color,

religion, sex, or national origin. 42 U.S.C. § 2000e–2(a)(1). Like retaliation,

discrimination in violation of Title VII may be proven either by direct or

circumstantial evidence. Crawford v. Carroll, 529 F.3d 961, 975-976 (11th Cir.

2008). Again, when a claim is based on circumstantial evidence, we generally

apply the burden-shifting McDonnell Douglas framework. See Vessels, 408 F.3d

at 767. But we recognize that a plaintiff’s claim will survive summary judgment if


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he otherwise presents “enough circumstantial evidence to raise a reasonable

inference of intentional discrimination.” Hamilton, 680 F.3d at 1320.

         Plaintiff relied only on circumstantial evidence to support his race

discrimination claim, and the magistrate judge analyzed the claim under the

McDonnell Douglas framework. Assuming Plaintiff had established a prima facie

case, the magistrate judge concluded his race discrimination claim could not

survive summary judgment because the evidence conclusively showed that

Defendants had fired Plaintiff for a legitimate, non-discriminatory reason and

Plaintiff failed to present any evidence of pretext. Finding no evidence from which

a jury reasonably could conclude that Plaintiff’s termination was racially

motivated, the magistrate judge recommended granting summary judgment on the

claim.

         Plaintiff designated his race discrimination claim as an issue for appeal, but

he did not cite any evidence or authorities in support of the claim in his appellate

brief. Instead, he merely stated that he had “presented ample circumstantial

evidence of discrimination” below. This conclusory statement was insufficient to

preserve Plaintiff’s race discrimination claim for appeal. See Sapuppo v. Allstate

Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have long held that an

appellant abandons a claim when he either makes only passing references to it or

raises it in a perfunctory manner without supporting arguments and authority.”);


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Hamilton, 680 F.3d at 1319 (“A passing reference to an issue in a brief is not

enough, and the failure to make arguments and cite authorities in support of an

issue waives it.”). Plaintiff has abandoned his race discrimination claim by failing

to cite any evidence or authority in support of it.

       In any event, we agree with the magistrate judge’s conclusion that

Defendants are entitled to summary judgment on Plaintiff’s race discrimination

claim. Applying the McDonnell Douglas framework, a plaintiff may establish a

prima facie case of race discrimination with evidence that (1) he belongs to a

protected class, (2) he was subjected to an adverse employment action, (3) his

employer treated similarly situated employees outside of his classification more

favorably, and (4) he was qualified to do the job. See Wilson, 376 F.3d at 1091.

Plaintiff’s protected class is his race, and the adverse action at issue is his

termination. Plaintiff does not cite evidence in his appellate brief to suggest that he

was treated less favorably than any employee of a different race with respect to his

termination.11 And it is undisputed that, after being terminated, Plaintiff was

replaced in the Deputy AG position by a black female, pursuant to Buckner’s

request.

       Even assuming, as did the magistrate judge, that Plaintiff could establish a

prima facie case, he has not presented any evidence that the reasons asserted for his

       11
           The white employees referred to in Plaintiff’s summary judgment brief below were not
similarly situated to him either in their job duties or in their alleged misconduct.
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termination were a pretext for race discrimination. As discussed, there is evidence

from which a jury could infer that Plaintiff was terminated in retaliation for his

deposition testimony in Rawls, and not because of his multiple acts of misconduct.

There is, however, no evidence to suggest that Plaintiff’s termination was racially

motivated. Accordingly, Defendants are entitled to summary judgment on

Plaintiff’s federal race discrimination claim.

IV.   Plaintiff’s State ASEPA Claim

      After granting summary judgment on all of Plaintiff’s federal claims, the

district court declined to exercise jurisdiction over Plaintiff’s remaining state law

claim. Given our decision reversing and remanding Plaintiff’s federal retaliation

claim, we also remand the state law claim because the district court’s reason for

declining jurisdiction over the claim is no longer valid.

                                  CONCLUSION

      For the reasons discussed above, we AFFIRM the district court’s order

granting summary judgment to Defendants on Plaintiff’s race discrimination claim

under Title VII and § 1981. We REVERSE the district court’s order granting

summary judgment to Defendants on Plaintiff’s retaliation claim under Title VII

and § 1981 and REMAND that claim for proceedings consistent with this opinion.

We also REMAND Plaintiff’s state law claim.




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