         Case: 15-11643   Date Filed: 04/12/2016   Page: 1 of 16


                                                       [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-11643
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 2:13-cv-00495-CG-M



WILLIAM SMITH,

                                                          Plaintiff-Appellant,

                                 versus

CITY OF GREENSBORO,
CHIEF WILLIE HUDSON,
MAYOR JOHNNIE WASHINGTON,

                                                       Defendants-Appellees.

                     ________________________

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



                            (April 12, 2016)
               Case: 15-11643        Date Filed: 04/12/2016      Page: 2 of 16


Before JORDAN, JULIE CARNES and JILL PRYOR, Circuit Judges.

PER CURIAM:

       William Smith, a black male, appeals from the district court’s grant of

summary judgment in favor of defendants the City of Greensboro (the “City”),

Chief of Police Willie Hudson, and Mayor Johnnie Washington on his employment

discrimination claims under the First and Fourteenth Amendments of the United

States Constitution, 42 U.S.C. § 1983, and Title VII of the Civil Rights Act of

1964. After consideration of the parties’ briefs and a thorough review of the

record, we affirm.

                                    I. BACKGROUND 1

       From 2006 through December 20, 2012, William Smith worked as a City

police officer. During this time, he worked only the night shift, which allowed him

also to work as a school bus driver during the day.

       In September 2010, the City Council appointed Willie Hudson as Chief of

Police. Virtually from the start, Hudson and Smith had a tense relationship. For

example, in January 2011, Hudson met with Smith to address problems with

Smith’s performance. Hudson memorialized the meeting in a “Letter of

Counseling,” which he provided to Smith. In the letter, Hudson noted, among

other issues, that Smith was difficult to reach when he was off duty.
       1
         On review of the district court’s grant of summary judgment, we recount the facts in the
light most favorable to Smith. See infra Part II.

                                                2
                 Case: 15-11643         Date Filed: 04/12/2016        Page: 3 of 16


      Shortly after this meeting, on February 12, 2011, Smith drafted a letter to

“whom it may concern,” reflecting on the conflicts he had with Hudson. In the

letter, Smith stated that Hudson was bullying him, threatening to “put [him] on all

days so [he could not] drive [his] bus route.” Doc. 30-25 at 11. 2 Smith also

complained specifically about the January meeting and Letter of Counseling,

asserting that Hudson unfairly singled him out. Smith then requested a hearing

before the City’s Grievance Committee to address Hudson’s alleged harassment.

The Grievance Committee held a hearing on March 1, 2011. The record does not

reflect the outcome of this hearing.

      Beginning in the spring of 2012, the City’s black incumbent mayor Johnnie

Washington ran for reelection against a white man, Stephen Gentry, and a black

man, Eldrin Long. Chief Hudson warned Smith and other officers that any black

officer who supported the white political leadership in the City would suffer

negative consequences. At some unidentified point in time, Smith complained

about this remark and generally about Hudson’s “racial politics” to Assistant Chief

Mike Hamilton.

      Washington and Gentry garnered nearly an equal number of votes in the

August 2012 general election, sending the contest to a run-off election scheduled

for October 9, 2012. Smith then began supporting Gentry. During the

      2
          Citations to “Doc.” refer to docket entries in the district court record in this case.

                                                   3
                Case: 15-11643       Date Filed: 04/12/2016        Page: 4 of 16


campaigning leading to the run-off election, Smith and Willie Lewis, his colleague

on the police force, vocalized support for Gentry to other officers, including

Assistant Chief Hamilton, and to members of the community including Hamilton’s

brothers, Terry Hamilton and former Chief of Police Claude Hamilton. Smith and

Lewis never made political statements at work, and Chief Hudson and Mayor

Washington maintain that they were unaware of Smith’s political allegiance to

Gentry. 3

       At some point between the August election and October run-off, Smith

received a letter from Chief Hudson telling him that he could no longer work

exclusively night shifts. At least by this point, Smith was the only officer not

serving on rotating day and night shifts. Smith immediately contacted Mayor

Washington and Chief Hudson and urged them to reverse this decision, explaining

that he needed both jobs to support his family. He then met with Hudson and

Assistant Chief Hamilton to reiterate his request. Hudson refused, citing “miss[ed]

court dates, neglect[ed] papework,” and Smith’s unavailability by telephone. Doc.

38-1 at 6, ¶ 17. According to Smith, he never missed court dates and Chief


       3
          Smith asserts that the City targeted him and Lewis for their support of Gentry. To
support this assertion, Smith relies on statements he says he heard Terry Hamilton and Assistant
Chief Hamilton make. Before the district court, the defendants challenged these statements as
inadmissible hearsay, but they make no such challenge on appeal. In any event, because Smith
failed to show that the City could be liable for any adverse employment action he allegedly
suffered, see infra note 8, we need not address whether the City harbored a retaliatory intent and
thus do not consider these remarks.

                                                4
                Case: 15-11643        Date Filed: 04/12/2016       Page: 5 of 16


Hudson “always knew how to reach [him] because he knew where [he] lived and

had all of [his] contact numbers.” Id.

       Mayor Washington won the run-off election on October 9, 2012. In

November, Chief Hudson informed Smith that he was being placed in the shift

rotation to work days as well as nights.

       In late November 2012, Smith took paid leave, returning to work the first

week of December with a physician’s excuse. The excuse stated that Smith had

visited the doctor on December 4 and should be excused from work for six weeks.

The City Attorney 4 responded on December 13, noting that the City understood he

was continuing to work as a bus driver during his leave of absence from the police

department. Thus, the City Attorney requested additional information from the

doctor explaining why Smith could work as a bus driver but not as a police officer.

Smith responded with a nearly identical physician’s note, providing no additional

information. Smith subsequently stopped reporting to work. On December 20, the

City Attorney informed Smith that his medical excuse was insufficient and that the

City considered him “as having abandon[ed] and/or resigned [his] position.” Doc.

30-7 at 2. Chief Hudson followed with a letter echoing this decision.




       4
          Smith averred that he received this letter from Chief Hudson, but the record reflects that
the letter came from the City’s attorney, Dennis Steverson.

                                                 5
               Case: 15-11643       Date Filed: 04/12/2016      Page: 6 of 16


       Smith requested and received a grievance hearing. At the grievance hearing,

the City explained that Smith had not been fired and that he could return to work if

he desired. The City Attorney followed up with a letter stating, “You were not

fired nor did you receive any disciplinary action from your request for six weeks of

sick leave.” Doc. 30-11 at 2. The letter continued:

       You may return to work immediately or provide sufficient medical
       proof that you were medically unable to work during the six-week
       period that you requested for sick leave. Your medical proof must
       explain why you can work at another job outside of the police
       department during your sick leave, but can’t perform your duties at
       the police department.

Id. Smith failed to submit the requested medical proof and did not report to work.

Smith continued working as a bus driver, however. Smith is no longer employed

with the Greensboro Police Department.

       Smith filed a charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”), which issued a right to sue letter. He then

filed this action, alleging several claims against the City, Mayor Washington, and

Chief Hudson including: (1) a First Amendment freedom of association retaliation

claim; 5 (2) a race discrimination claim under 42 U.S.C. § 1983 and Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2, 3; and (3) a Title VII retaliation

       5
          It was unclear from Smith’s operative amended complaint whether his First Amendment
retaliation claim was based on freedom of speech or freedom of association. On appeal, Smith
argues only that the defendants violated his right to freely associate, so we address only that
claim.

                                              6
               Case: 15-11643        Date Filed: 04/12/2016      Page: 7 of 16


claim. 6 Following a period of discovery, all three defendants moved for summary

judgment. The district court granted the motion for summary judgment, dismissing

this action with prejudice. This appeal followed.

                             II. STANDARD OF REVIEW

       We review a district court’s grant of summary judgment de novo. Galvez v.

Bruce, 552 F.3d 1238, 1241 (11th Cir. 2008). “Summary judgment is appropriate

when the evidence, viewed in the light most favorable to the nonmoving party,

presents no genuine issue of fact and compels judgment as a matter of law.”

Swisher Int’l, Inc. v. Schafer, 550 F.3d 1046, 1050 (11th Cir. 2008); accord Fed. R.

Civ. P. 56(a). If the nonmoving party bears the ultimate burden of proof regarding

the claim at issue in the summary judgment motion, that party, in response to the

motion, must go beyond the pleadings and establish through competent evidence

that there truly is a genuine, material issue to be tried. Celotex Corp. v. Catrett,

477 U.S. 317, 324 (1986).

                                      III. ANALYSIS

       Smith argues that the district court erred in granting the defendants’ motion

for summary judgment on his First Amendment freedom of association retaliation


       6
         Smith raised several other claims including, among others, equal protection and due
process claims under the Fourteenth Amendment and a state law claim of intentional infliction of
emotional distress. The district court dismissed these claims, and Smith does not challenge their
dismissal on appeal. These claims, therefore, are abandoned. See Davis v. Coca-Cola Bottling
Co. Consol., 516 F.3d 955, 972 (11th Cir. 2008).

                                                7
             Case: 15-11643     Date Filed: 04/12/2016   Page: 8 of 16


claim, Title VII and § 1983 race discrimination claims, and Title VII retaliation

claim. We first consider whether Smith can prove an adverse employment action,

a necessary element of each of his claims. Because Smith can do so only for his

two retaliation claims against Chief Hudson, we next consider whether the district

court erred in dismissing those two claims on summary judgment.

A. Adverse Employment Action

      To prevail on his claims, Smith must prove he suffered an adverse

employment action. See McCabe v. Sharrett, 12 F.3d 1558, 1563-64 & 1565 n.8

(11th Cir. 1994) (First Amendment retaliation claim); Kidd v. Mando Am. Corp.,

731 F.3d 1196, 1202 (11th Cir. 2013) (Title VII discrimination claim); Crawford v.

Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (Title VII retaliation claim and race

discrimination claim under Title VII and § 1983). Smith argues that he suffered

two adverse employment actions: a coerced resignation and a shift change.

      We first reject Smith’s coerced resignation argument with respect to all three

of his claims. “Under the coercion or duress theory, we consider whether, under

the totality of the circumstances, the employer’s conduct in obtaining the

employee’s resignation deprived the employee of free will in choosing to resign.”

Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir. 1995). Several

factors guide our analysis including: “(1) whether the employee was given some

alternative to resignation; (2) whether the employee understood the nature of the


                                         8
               Case: 15-11643       Date Filed: 04/12/2016       Page: 9 of 16


choice he was given; [and] (3) whether the employee was given a reasonable time

in which to choose.” Id. 7 The record shows that the City offered Smith an

alternative to resignation: providing a medical reason for his inability to work as a

police officer. Smith indisputably understood the choice he was given and had

ample time to make it. Under these circumstances, Smith’s resignation was not

obtained through coercion and cannot support any of the claims here.

       We next conclude that the shift change cannot support a Title VII or § 1983

discrimination claim but can constitute an adverse employment action for purposes

of Smith’s retaliation claims against Chief Hudson. For his race discrimination

claims under Title VII or § 1983, Smith must prove that his employer took actions

that materially changed the terms, conditions, or privileges of employment. Kidd,

731 F.3d at 1202. Smith argues that being placed on the day-shift prevented him

from working his day job, but he does not argue, nor does he support with

evidence, that the shift change materially altered the terms, conditions, or

privileges of his employment as a police officer with the City. Thus, Smith failed

to show he suffered an adverse employment action to support his race

discrimination claim under Title VII or § 1983. We affirm the district court’s grant

of summary judgment on those claims. See Thomas v. Cooper Lighting, Inc., 506
       7
         We recognized in Hargray that other factors may be relevant, including “whether the
employee was permitted to select the effective date of the resignation; and . . . whether the
employee had the advice of counsel.” Hargray, 57 F.3d at 1568. Neither of these factors
suggests that Smith was coerced into resigning.

                                               9
               Case: 15-11643       Date Filed: 04/12/2016       Page: 10 of 16


F.3d 1361, 1364 (11th Cir. 2007) (“We may affirm the district court’s judgment on

any ground that appears in the record, whether or not that ground was relied upon

or even considered by the court below.”).

       In contrast, the shift change could support Smith’s retaliation claims against

Chief Hudson. 8 “[T]he type of employer conduct considered actionable [in the

retaliation context] has been broadened from that which adversely affects the

plaintiff’s conditions of employment or employment status to that which has a

materially adverse effect on the plaintiff, irrespective of whether it is employment

or workplace-related.” Crawford, 529 F.3d at 973 (citing Burlington N. & Santa

Fe Ry. Co. v. White, 548 U.S. 53, 67-68 (2006)); accord Lore v. City of Syracuse,

670 F.3d 127, 163-64 (2d Cir. 2012) (“If the adverse-action element of a Title VII

retaliation action can be satisfied by an action causing the employee harm outside

the workplace, a fortiori an act in retaliation for the employee’s exercise of a

constitutional right need not be tied to harm in the workplace.”). To determine

whether the shift change had a materially adverse effect, we consider the totality of



       8
          Smith offered no evidence or argument that the Mayor was involved in the shift change
decision. Nor did Smith offer any basis to hold the City liable for the shift change under Monell
v. New York City Department of Social Services, 436 U.S. 658, 694 (1978). See Carter v. City of
Melbourne, 731 F.3d 1161, 1167-68 (11th Cir. 2013) (affirming dismissal of a First Amendment
retaliation claim against a city where the plaintiff failed to offer evidence that the employment
decisions about which he complained were rendered by a final policymaker for the city). Thus,
the district court did not err in dismissing Smith’s retaliation claims against the Mayor and the
City.

                                               10
              Case: 15-11643    Date Filed: 04/12/2016   Page: 11 of 16


circumstances “judged from the perspective of a reasonable person in the plaintiff's

position.” Burlington, 548 U.S. at 71 (internal quotation marks omitted).

      Smith produced evidence that the shift change—after his six years of

working only nights—made it impossible for him to keep his day job as a bus

driver, a job he needed to support his family. Based on the evidence in the record,

a reasonable jury could conclude that this shift change had a “materially adverse”

effect on Smith and thus constituted an adverse employment action for purposes of

his two retaliation claims against Hudson. See Crawford, 529 F.3d at 973 n.13

(“Burlington also strongly suggests that it is for a jury to decide whether anything

more than the most petty and trivial actions against an employee should be

considered ‘materially adverse’ to him and thus constitute adverse employment

actions.” (quoting Burlington, 548 U.S. at 71)). We thus must consider whether,

on this record, Smith can satisfy the remaining elements of his First Amendment

and Title VII retaliation claims against Hudson. We consider each claim

separately.

B. First Amendment Retaliation Claim

      The First Amendment prohibits the state from denying its citizens the right

to associate with whomever they choose. See Rutan v. Republican Party of Ill.,

497 U.S. 62, 71-74 (1990). Accordingly, the state may not take a materially

adverse action against its employee in retaliation for exercising First Amendment


                                         11
               Case: 15-11643        Date Filed: 04/12/2016        Page: 12 of 16


associational rights. McCabe, 12 F.3d at 1568.9 “[I]n cases where the employer

denies taking the adverse employment action solely because the employee

exercised the expressive association right of political affiliation, we . . . employ

the Mt. Healthy causation analysis.” Id. at 1565 n.8 (citing Mt. Healthy City Sch.

Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)). Under the Mt. Healthy analysis,

the plaintiff must first show that “political affiliation was a substantial or

motivating factor for the challenged action.” Id. Once the plaintiff satisfies this

burden, “the burden of production shifts to the defendant . . . [to] show that he

would have taken the same action in the absence of the protected activity.”

Brannon v. Finkelstein, 754 F.3d 1269, 1275 (11th Cir. 2014) (internal quotation

marks omitted).

       Smith has failed to produce sufficient evidence to satisfy his initial burden.

“It is neither possible nor desirable to fashion a single standard for determining

when an employee has met her initial burden of demonstrating that a retaliatory

intent was a ‘substantial’ or ‘motivating factor’ behind a government employment

decision.” Beckwith v. City of Daytona Beach Shores, 58 F.3d 1554, 1564 (11th

       9
         To prevail on a First Amendment retaliation claim based on freedom of association,
“the plaintiff must make threshold showings (1) that the behavior at issue consists of
constitutionally protected political affiliation or belief and (2) that he or she actually suffered
adverse employment action before a court will consider the issue of justification.” McCabe, 12
F.3d at 1565 n.8. The defendants do not contest that Smith’s support for Mayor Washington’s
opponent was constitutionally protected, and we have already determined that Smith raised a
genuine issue of material fact whether he suffered an adverse employment action for retaliation
purposes.

                                                 12
             Case: 15-11643     Date Filed: 04/12/2016    Page: 13 of 16


Cir. 1995) (applying Mt. Healthy to a First Amendment retaliation claim based on

freedom of expression). Nonetheless, if “there is unrebutted evidence that the

decision maker did not have knowledge that the employee engaged in protected

conduct,” the plaintiff will be unable to show causation even where there is close

temporal proximity between the protected conduct and adverse action. See

Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000)

(considering causation in a case under the Family Medical Leave Act).

      Chief Hudson averred that he was unaware of Smith’s political association

with Mayor Washington’s white opponent, Gentry. Smith failed to rebut this

evidence. Although Smith maintained that he vocalized support for Gentry to

other officers, including Assistant Chief Mike Hamilton and former Chief of Police

Claude Hamilton, Smith offered no evidence that the Hamiltons or anyone else told

Hudson about this support, or that Hudson learned of it in any other way. Smith

himself maintained that he never discussed his political affiliation at work. Other

than speculation, a reasonable jury would have no basis to find that Hudson knew

about Smith’s support of Gentry. Speculation is insufficient to avoid summary

judgment. Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005)

(“Speculation does not create a genuine issue of fact; instead, it creates a false

issue, the demolition of which is a primary goal of summary judgment.” (internal




                                          13
               Case: 15-11643        Date Filed: 04/12/2016       Page: 14 of 16


quotation marks omitted)). Accordingly, the district court did not err in dismissing

Smith’s First Amendment retaliation claim against Hudson.

C. Title VII Retaliation Claim

       Last we consider Smith’s Title VII retaliation claim. In order to establish a

prima facie case for retaliation under Title VII, a claimant may show that: (1) he

engaged in a statutorily protected activity; (2) he suffered a materially adverse

action; and (3) there was a causal link between the protected activity and the

adverse action. Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir.

2008). Statutorily protected activity includes (1) “oppos[ing] any practice made an

unlawful employment practice by” Title VII and (2) “mak[ing] a charge,

testif[ying], assist[ing], or participat[ing] in any manner in an investigation,

proceeding, or hearing under” Title VII. 42 U.S.C. § 2000e-3(a); see EEOC v.

Total Sys. Servs., Inc., 221 F.3d 1171, 1174-75 (11th Cir. 2000). Smith argues that

Chief Hudson retaliated against him because he “opposed the racist rantings of

Chief Hudson,” Appellant’s Br. at 23, presumably referring to a complaint he

voiced to Assistant Chief Mike Hamilton sometime in the spring of 2012.10 See




       10
           Smith also suggests without explanation or citation to authority that his political
affiliation with a white candidate for mayor was statutorily protected conduct under Title VII.
Even assuming his political support for Gentry constituted statutorily protected conduct under
Title VII, any claim based on this political association would fail for the reasons explained above
in Part III.B.

                                                14
             Case: 15-11643      Date Filed: 04/12/2016   Page: 15 of 16


Doc. 38-1 ¶ 11. We assume without deciding that this complaint constituted

statutorily protected conduct.

      Smith’s Title VII retaliation claim fails nonetheless because he provided

insufficient evidence to draw a causal link between the complaint about Hudson’s

alleged racist remarks and the adverse action, his November 2012 shift change.

“We construe the causal link element broadly so that a plaintiff merely has to

prove that the protected activity and the negative employment action are not

completely unrelated.” Goldsmith, 513 F.3d at 1278 (internal quotation marks

omitted). Despite this low bar, Smith neither cites record evidence nor provides

any explanation to show that his complaint was related in any way to the shift

change. Just as with his First Amendment retaliation claim, to prove causation,

Smith must “‘show that the decision maker was aware of the protected conduct at

the time of the adverse employment action.’” Goldsmith, 513 F.3d at 1278

(quoting Brungart, 231 F.3d at 799); see, e.g., Quigg v. Thomas Cty. Sch. Dist.,

814 F.3d 1227, 1244-45 (11th Cir. 2016) (holding that without defendant’s

knowledge that plaintiff engaged in protected activity, plaintiff cannot show that

the activity caused the adverse employment action). Smith offers no evidence that

Hudson was aware of Smith’s complaint to Mike Hamilton. In sum, because

Smith failed to proffer sufficient evidence to support causation, the district court

did not err in dismissing his Title VII retaliation claim on summary judgment.


                                          15
            Case: 15-11643    Date Filed: 04/12/2016   Page: 16 of 16


                              IV. CONCLUSION

      For the foregoing reasons, we affirm the district court’s entry of summary

judgment on all claims.

      AFFIRMED.




                                        16
