            Case: 14-14944    Date Filed: 06/30/2015   Page: 1 of 5


                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                               No. 14-14944
                           Non-Argument Calendar
                         ________________________

                    D.C. Docket No. 1:12-cv-03723-TWT


KHIRUS E. WILLIAMS,

                                                             Plaintiff-Appellant,

                                    versus

CITY OF ATLANTA,
POLICE CHIEF GEORGE N. TURNER,
in his individual capacity,

                                                          Defendants-Appellees.

                         ________________________

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

                                (June 30, 2015)

Before TJOFLAT, WILSON, and ANDERSON, Circuit Judges.

PER CURIAM:

     Khirus Williams, an African-American male, appeals the district court’s
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grant of summary judgment in his suit against the City of Atlanta and Police Chief

George Turner, in his individual capacity, alleging retaliation against him for

speech protected by the First Amendment, in violation of 42 U.S.C. § 1983, and

discrimination based on his race, in violation of 42 U.S.C. §2000e-2. On appeal,

Williams argues that the district court erred by concluding that Williams spoke out

as an employee, and not as a citizen, when he emailed community members about

the potential reorganization of the police precinct he administered. Williams also

argues that the court erred by deciding that Deputy Chief Peter Andresen, a

Caucasian male, was not a similarly situated comparator for the purposes of

proving disparate treatment.

      Upon review of the record and consideration of the parties’ briefs, we

affirm.

                                         I.

      We review de novo a summary judgment determination, viewing all

evidence in the light most favorable to the non-moving party. Owen v. I.C. Sys.,

Inc., 629 F.3d 1263, 1270 (11th Cir. 2011). A public employee cannot prove a

First Amendment violation “merely by showing that the speech at issue addressed

a subject of public concern.” Moss v. City of Pembroke Pines, 782 F.3d 613, 618

(11th Cir. 2015). As a threshold matter, the employee must also show that he

“spoke in his capacity as a citizen, rather than as an employee.” Id. This inquiry is


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a question of law we review de novo. Vila v. Padron, 484 F.3d 1334, 1339 (11th

Cir. 2007).

      To determine whether the speech at issue was made in the employee’s role

as a citizen or an employee, we make a practical inquiry into whether the speech

“owes its existence to [the] employee’s professional duties.” Abdur-Rahman v.

Walker, 567 F.3d 1278, 1283 (11th Cir. 2009) (quotations omitted). The inquiry is

not controlled by “[f]ormal job descriptions,” but rather by the content, form, and

context of the speech as revealed by the record as a whole. Id. The speech of a

high-ranking employee with broad administrative responsibilities is not protected

when the employee speaks out on a subject that impacts the day-to-day operations

he is responsible for overseeing, even where the employee is specifically instructed

not to speak out on the issue. Moss, 782 F.3d at 620.

      Here, Williams’s speech was not just about any general issue of public

concern, but about the reorganization of his precinct, which he was in charge of

planning and implementing. Williams was a high-ranking employee responsible

for overseeing the implementation of the reorganization and thus, even though he

argues that he was not required to criticize the department as part of his job

description, his speech was nevertheless made in his role as an employee. See

Moss, 782 F.3d at 620. Because Williams’s speech was not made in his capacity

as a citizen, the district court did not err in granting summary judgment in favor of


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the defendants on Williams’s § 1983 claim. See id. at 619-20.

                                         II.

      The party moving for summary judgment bears the initial burden of

establishing the absence of a dispute over a material fact. Celotex Corp. v. Catrett,

477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The burden then

shifts to the non-moving party, who may not rest upon mere allegations, but must

set forth specific facts showing that there is a genuine issue for trial. Eberhardt v.

Waters, 901 F.2d 1578, 1580 (11th Cir. 1990).

      Employers are prohibited from discharging an employee because of the

employee’s race. 42 U.S.C. § 2000e-2(a)(1). To establish a prima facie case of

disparate treatment in a race discrimination case, a plaintiff must prove that the

employer treated similarly situated employees outside of his protected class more

favorably. Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir.

2006). Where a plaintiff fails to establish a valid comparator and presents no other

evidence of race discrimination, the plaintiff does not make out a prima facie case.

Id. at 1325.

      Williams fails to show that Deputy Chief Peter Andresen is a valid

comparator. As Williams himself argues, Andresen’s misconduct was his failure

to manage Williams, who was Andresen’s subordinate. Williams’s misconduct

was the email he sent to community members criticizing the department’s


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restructuring plan, which led to Turner’s decision to demote him. Simply put,

Williams does not demonstrate that Andresen engaged in similar conduct. Because

Williams does not show that a similarly situated comparator was treated more

favorably, and does not present other evidence of race discrimination, the district

court properly held that Williams failed to make out a prima facie case of race

discrimination. Burke-Fowler, 447 F.3d at 1325.

      AFFIRMED.




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