                                                                         [PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS
                                                                              FILED
                            FOR THE ELEVENTH CIRCUIT                U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                                                          NOV - 8 2000
                                                                       THOMAS K. KAHN
                                                                            CLERK
                                       No. 99-12951

                         D. C. Docket No. 97-07007-CV-WPD


DEBORAH RICE-LAMAR,

                                                                         Plaintiff-Appellant,

                                            versus

CITY OF FORT LAUDERDALE, FLORIDA, a
municipality, GEORGE HANBURY, individually,
PETE WITSCHEN, Asst. City Attorney,
individually, BRUCE LARKIN, individually, JOHN
PANOCH, individually,

                                                                     Defendants-Appellees.


                      Appeal from the United States District Court
                          for the Southern District of Florida

                                   (November 8, 2000)


Before TJOFLAT, MARCUS and CUDAHY*, Circuit Judges.
________________
*Honorable Richard D. Cudahy, U.S. Circuit Judge for the Seventh Circuit, sitting by
designation.
TJOFLAT, Circuit Judge:

                                           I.

                                          A.

      The City Manager’s Office (the “CMO”) in the City of Ft. Lauderdale,

Florida, oversees a large and complex bureaucratic structure. Under the CMO,

which includes not only the City Manager, himself, but also Assistant City

Managers and various other personnel, are seven City Departments: Police, Public

Services, Fire Rescue and Building, Administrative Services, Finance, Parks and

Recreation, and Planning and Economic Development. Each Department is

comprised of several Divisions. One such Division within each of the Departments

is the Personnel Division.

      The City Manager serves at the pleasure of an elected City Commission. In

order to ensure racial, ethnic, and gender diversity in the City’s hiring practices, the

Ft. Lauderdale City Commission requested that the CMO prepare annual reports

detailing the City’s progress in hiring and retaining minority employees. The

CMO assigned this task to the Affirmative Action Specialist, who reports to the

Director of Personnel in the Administrative Services Department.

      On June 20, 1988, Deborah Rice-Lamar, an African-American female, was

hired to be the City’s Affirmative Action Specialist. Rice-Lamar’s job description


                                           2
stated that one of her principal tasks was to “advise[] departmental and personnel

officials as well as the City Manager on potential EEO liabilities and on strategies

for achieving . . . long term [affirmative action] goals.”1 Though her “work [was to

be] performed with considerable independent judgment, discretion and initiative,”

the job description made clear that it was also to be “reviewed by an administrative

superior through conferences, periodic reports, and observation of results

achieved.” Rice-Lamar presented the 1996 Affirmative Action Report at a

Department meeting on June 19, 1996. Entitled “Economic Integration:

Affirmative Action for the New Millennium,” the report included a dramatic

personal commentary by Rice-Lamar, which stated:

       [W]e are still a City plagued with racism, glass ceilings for women
       and brick walls for people of color, a tolerance for perceptions of
       unfairness and a proverbial silence about it all. We make plans for
       valuing and managing diversity initiatives within the City which
       should create an environment where differences are valued as an
       advantage[,] not just tolerated. However, differences must first be
       acknowledged before either tolerated or valued. Recommendations on
       the City’s diversity initiative are forthcoming; however, I will take
       this opportunity to foretell that they will acknowledge our need to
       address some basic problem of “ism” while moving toward an
       environment which values diversity and manages diversity for the
       betterment of all.



       1
         Specifically, Rice-Lamar’s “Work Plan” (a document that was separate from the job
description) stated that one of her principal tasks was to compile “Annual City-Wide Updates”
regarding affirmative action in City employment.

                                               3
Also included were statistical graphs indicating the number of African-American,

Hispanic, and female City employees in management and professional positions.

      George Hanbury, the City Manager, Pete Witschen, an Assistant City

Manager, Bruce Larkin, the Director of the Administrative Services Department,

and John Panoch, the Director of the Personnel Division of the Administrative

Services Department, all expressed serious reservations about the content of the

report, and requested that Rice-Lamar make various substantive changes before the

report was delivered to the City Commission. In particular, Rice-Lamar’s

superiors directed her to remove the personal commentary, and to draft a report

that focused on the statistical data collected on minority and female representation

in the City workforce. Rice-Lamar refused to alter the report substantially. On

July 22, 1996, she left a revised copy of the report in Larkin’s and Panoch’s

respective offices, with a message that it was ready for printing and distribution.

The report still contained much of the personal commentary that her superiors had

directed her to remove.2


      2
       The revised report stated:
      [W]e are still a City plagued with real and/or perceptions of racism, glass ceilings
      for women and walls for people of color. These issues whether real or perceived
      must be discussed. For that reason we make plans for valuing and managing
      diversity initiatives within the City which should create an environment where
      differences are valued as an advantage[,] not just tolerated. However, differences
      must first be acknowledged before either tolerated or valued[;] therein lies the
      need for discussion. Recommendations on the City’s diversity initiative are

                                               4
        On July 26, Larkin met with Rice-Lamar and offered her the opportunity to

resign. She refused, stating in a letter to Larkin that

        [t]he Affirmative Action Report . . . honestly and objectively outlines
        racial problems and tensions in the City.
               Apparently, your concern over public image have [sic] led you
        to suppress the publication of my report and request my resignation.

On July 29, without Larkin’s review or approval, Rice-Lamar distributed the report

to Hanbury, and all but one of the Department heads. On August 12, Rice-Lamar

was notified by memorandum from Panoch of possible disciplinary action against

her, based, in part, on the fact that “numerous deadlines [had been] missed and

instructions [were] not followed” with regard to the “Affirmative Action

presentation and report.” After affording Rice-Lamar an opportunity to be heard,

Larkin recommended to the City Manager that she be discharged. The City

Manager accepted the recommendation and discharged her effective October 21,

1996.



                                             B.

        Rice-Lamar brought this suit against the City of Ft. Lauderdale, Hanbury,

Witschen, Larkin, and Panoch in the United States District Court for the Southern

        forthcoming and will acknowledge our need to address some basic problem of
        “ism” while moving toward an environment which values diversity and manages
        diversity for the betterment of all.

                                             5
District of Florida. In a twelve-count complaint,3 she sought money damages and,

alternatively, reinstatement and back pay, against the City and the individual

defendants for discriminating against her on account of her race and sex, in

violation of the Fourteenth Amendment, Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e-2(a) (1994),4 and 42 U.S.C. § 1981 (1994),5 and for infringing

       3
           We refer to Rice-Lamar’s second amended complaint as the complaint.
       4
        42 U.S.C. § 2000e-2(a) makes it unlawful for an employer:
      (1) to fail or refuse to hire or to discharge any individual, or otherwise to
      discriminate against any individual with respect to his compensation, terms,
      conditions, or privileges of employment, because of such individual’s race, color,
      religion, sex, or national origin; or
      (2) to limit, segregate, or classify his employees or applicants for employment in
      any way which would deprive or tend to deprive any individual of employment
      opportunities or otherwise adversely affect his status as an employee, because of
      such individual’s race, color, religion, sex, or national origin.
      We realize that Title VII only allows suits against an “employer.” We mention Rice-
Lamar’s Title VII claims against the individual defendants, who are not Rice-Lamar’s
employers, for the sake of completeness only.
       5
         42 U.S.C. § 1981 provides:
       (a) Statement of equal rights
               All persons within the jurisdiction of the United States shall have the same
       right in every State and Territory to make and enforce contracts, to sue, be parties,
       give evidence, and to the full and equal benefit of all laws and proceedings for the
       security of persons and property as is enjoyed by white citizens, and shall be
       subject to like punishment, pains, penalties, taxes, licenses, and exactions of every
       kind, and to no other.
       (b) “Make and enforce contracts” defined
               For the purposes of this section, the term “make and enforce contracts”
       includes the making, performance, modification, and termination of contracts, and
       the enjoyment of all benefits, privileges, terms, and conditions of the contractual
       relationship.
       (c) Protection against impairment
               The rights protected by this section are protected against impairment by
       nongovernmental discrimination and impairment under color of State law.
       We assume without implying any view on the matter that the individual defendants can

                                               6
her First Amendment right to free speech.6 As a vehicle for recovery, Rice-Lamar

invoked 42 U.S.C. § 1983. (1994)7 Finally, she claimed that the individual

defendants had conspired to discriminate against her on account of her race and sex

in violation of 42 U.S.C. § 1985(3) (1994).8


be properly sued under section 1981 in these circumstances.
       6
         The First Amendment provides that “Congress shall make no law . . . abridging the
freedom of speech . . . .” U.S. Const. amend. I. This right was made applicable to the states by
the Fourteenth Amendment. Everson v. Board of Educ., 330 U.S. 1, 8, 67 S. Ct. 504, 508, 91 L.
Ed. 711 (1947).
       7
         42 U.S.C. § 1983 provides:
       Every person who, under color of any statute, ordinance, regulation, custom, or
       usage, of any State or Territory or the District of Columbia, subjects, or causes to
       be subjected, any citizen of the United States or other person within the
       jurisdiction thereof to the deprivation of any rights, privileges, or immunities
       secured by the Constitution and laws, shall be liable to the party injured in an
       action at law, suit in equity, or other proper proceeding for redress.
       8
         42 U.S.C. § 1985(3) provides:
       If two or more persons in any State or Territory conspire or go in disguise on the
       highway or on the premises of another, for the purpose of depriving, either
       directly or indirectly, any person or class of persons of the equal protection of the
       laws, or of equal privileges and immunities under the laws; or for the purpose of
       preventing or hindering the constituted authorities of any State or Territory from
       giving or securing to all persons within such State or Territory the equal
       protection of the laws; or if two or more persons conspire to prevent by force,
       intimidation, or threat, any citizen who is lawfully entitled to vote, from giving
       his support or advocacy in a legal manner, toward or in favor of the election of
       any lawfully qualified person as an elector for President or Vice President, or as a
       Member of Congress of the United States; or to injure any citizen in person or
       property on account of such support or advocacy; in any case of conspiracy set
       forth in this section, if one or more persons engaged therein do, or cause to be
       done, any act in furtherance of the object of such conspiracy, whereby another is
       injured in his person or property, or deprived of having and exercising any right
       or privilege of a citizen of the United States, the party so injured or deprived may
       have an action for the recovery of damages occasioned by such injury or
       deprivation, against any one or more of the conspirators.

                                                 7
      In their answers to Rice-Lamar’s complaint, the defendants denied liability

and the individual defendants claimed qualified immunity from suit.

      Following discovery, the defendants moved for summary judgment. The

district court granted their motions, concluding that Rice-Lamar failed to make out

a case under any of her theories of liability. The court also concluded that the

individual defendants were immune from suit under the doctrine of qualified

immunity. We now affirm the court’s judgment. We do so on the basis that the

record before the district court was insufficient as a matter of law to establish any

of Rice-Lamar’s claims for relief. (We therefore do not reach the question whether

any individual defendant is entitled to qualified immunity.)



                                          II.

      We review de novo orders granting a motion for summary judgment.

Warren v. Crawford, 927 F.2d 559, 561 (11th Cir. 1991). “The district court’s

conclusion[s] of law [are] subject to complete and independent review by this

court.” In re Sure-Snap Corp., 983 F.2d 1015, 1017 (11th Cir. 1993).

      A party seeking summary judgment must demonstrate that “there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party bears the


                                           8
initial burden of informing the court of the basis for its motion and of identifying

those materials that demonstrate the absence of a genuine issue of material fact.

See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552-53, 91 L.

Ed. 2d 265 (1986). When the non-moving party bears the burden of proof on an

issue at trial, the moving party need not “support its motion with affidavits or other

similar material negating the opponent’s claim,” id. at 323, 106 S. Ct. at 2553, in

order to discharge this initial responsibility. Instead, the moving party simply may

“‘show[]’–that is, point[] out to the district court–that there is an absence of

evidence to support the nonmoving party’s case.” Id. at 325, 106 S. Ct. at 2554

(quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 159, 90 S. Ct. 1598, 1609, 26

L. Ed. 2d 142 (1970)).

      In response to a properly supported motion for summary judgment, “an

adverse party may not rest upon the mere allegations or denials of the adverse

party’s pleadings, but . . . must set forth specific facts showing that there is a

genuine issue for trial.” Fed. R. Civ. P. 56(e). If the non-moving party fails to

“make a sufficient showing on an essential element of her case with respect to

which she has the burden of proof,” then the court must enter summary judgment

for the moving party. Celotex, 477 U.S. at 323, 106 S. Ct. at 2552. In determining

whether genuine issues of material fact exist, we resolve all ambiguities and draw


                                            9
all justifiable inferences in favor of the non-moving party. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202

(1986).



                                        III.

      We first address Rice-Lamar’s First Amendment free speech claim. Second,

we address her claim that she was discriminated against on the basis of her race

and sex.



                                         A.

      It is well established that a state may not discharge a public employee
      in retaliation for public speech. Rankin v. McPherson, 483 U.S. 378,
      107 S. Ct. 2891, 97 L. Ed. 2d 315 (1987). This circuit employs a
      four-part test to determine whether a state (or, as in this case, a city)
      has done so.
             First, a court must determine whether the employee’s speech
      may be fairly characterized as constituting speech on a matter of
      public concern. Connick v. Myers, 461 U.S. 138, 146, 103 S. Ct.
      1684, 1689, 75 L. Ed. 2d 708 (1983); Rankin, 483 U.S. at 384, 107 S.
      Ct. at 2896; Morgan v. Ford, 6 F.3d 750, 754 (11th Cir. 1993), cert.
      denied, 512 U.S. 1221, 114 S. Ct. 2708, 129 L. Ed. 2d 836 (1994)
      (citing Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir.
      1989)). Speech addresses a matter of public concern when the speech
      can be “fairly considered as relating to any matter of political, social,
      or other concern to the community.” Connick, 461 U.S. at 146, 103 S.
      Ct. at 1690. . . .
             Second, a court must weigh the employee’s “[F]irst
      [A]mendment interests” against the interest of the City, as an

                                         10
       employer, “in promoting the efficiency of the public services it
       performs through its employees.” Morgan, 6 F.3d at 754. In
       performing this balancing test, a court must consider several factors:
       (1) whether the speech at issue impeded the government’s ability to
       perform its duties effectively; (2) the manner, time and place of the
       speech; and (3) the context within which the speech was made.
       Connick, 461 U.S. at 151-55, 103 S. Ct. at 1692-94; Morales v.
       Stierheim, 848 F.2d 1145, 1149 (11th Cir. 1988), cert. denied, 489
       U.S. 1013, 109 S. Ct. 1124, 103 L. Ed. 2d 187 (1989). . . .
             Third, a court must determine whether the speech in question
       played a “substantial part” in the government’s decision to discharge
       the employee. . . .
             Fourth, if the employee shows that the speech was a substantial
       motivating factor in the decision to discharge him, the City must
       prove by a preponderance of the evidence that it would have reached
       the same decision in the absence of the protected conduct.

Fikes v. City of Daphne, 79 F.3d 1079, 1083-85 (11th Cir. 1996).

       We will assume without deciding that Rice-Lamar’s expression constitutes

speech on a matter of public concern, and dispose of the issue on the ground that

her First Amendment interests are outweighed by the City’s interest, as an

employer, “in promoting the efficiency of the public services it performs through

its employees.” Morgan, 6 F.3d at 754 (internal quotation marks omitted).9

       [I]n weighing the State’s interest in [disciplining] an employee based
       on any claim that the content of a statement made by the employee
       somehow undermines the mission of the public employer, some
       attention must be paid to the responsibilities of the employee within
       the agency. The burden of caution employees bear with respect to the

       9
        The question of whether a plaintiff’s First Amendment interests outweigh the
employer’s interest in promoting the efficiency of the public services it performs is a question of
law subject to de novo review. See Connick, 461 U.S. at 150 n.10, 103 S. Ct. at 1692 n.10.

                                                11
      words they speak will vary with the extent of authority and public
      accountability the employee’s role entails.

Rankin v. McPherson, 483 U.S. 378, 388, 107 S. Ct. 2891, 2899, 97 L. Ed. 2d 315

(1987). In the instant case, one of Rice-Lamar’s primary responsibilities within the

Ft. Lauderdale Department of Administrative Services was to write an annual

Affirmative Action Report to be presented to the City Commission. Although her

job description stated that Rice-Lamar was to perform her job “with considerable

independent judgment,” all of her work was ultimately to be “reviewed by an

administrative superior through conferences, periodic reports, and observation of

results achieved.” Because Rice-Lamar refused to alter the report in accordance

with her superiors’ instructions, any First Amendment interest she may have had in

publishing her views is outweighed by the City’s interest in producing an official

document that conformed to the City’s expectations.

      As Justice Brennan stated in his dissent in Connick,

      [p]erhaps the simplest example of a statement by a public employee
      that would not be protected by the First Amendment would be
      answering “No” to a request that the employee perform a lawful task
      within the scope of his duties. Although such a refusal is “speech,”
      which implicates First Amendment interests, it is also insubordination,
      and as such it may serve as the basis for a lawful dismissal.

Connick, 461 U.S. at 163 n.3, 103 S. Ct. at 1699 n.3 (Brennan, J., dissenting).

Contrary to Rice-Lamar’s perception, her job with the City did not involve


                                         12
utilizing the City’s resources to crusade for her personal vision of social justice;

her job was to follow her superiors’ lawful instructions. By declining to alter the

Affirmative Action Report after she was given a direct order to do so, Rice-Lamar

flatly refused to perform a lawful task within the scope of her duties. “Such a

refusal to abide by a valid order is closely connected with, and can be classified as

insubordination.” Hankard v. Town of Avon, 126 F.3d 418, 423 (2d Cir. 1997)

(holding that employees could be fired for refusing to obey government employer’s

order to alter a report concerning racial discrimination allegedly committed by

another employee).

       In a very real sense, the report cannot even be classified as Rice-Lamar’s

speech at all. The report was the City’s document. Although Rice-Lamar collected

the statistics and wrote the words contained in the report, she did so at the behest of

her employer; and the report was subject to her superiors’ approval before it could

be distributed to the City Commission. Just as a government employer has only a

limited right to control its employees’ speech, employees also have very little right

to control the content of their employer’s speech.10

       10
          Our notice of the fact that the Affirmative Action Report may not be accurately
characterized as Rice-Lamar’s speech (as opposed to the City’s speech) heightens our doubt that
the speech at issue should receive any First Amendment protection. See Youker v.
Schoenenberger, 22 F.3d 163, 166 (7th Cir. 1994) (“[T]he speech in the present case is not
protected because it was not speech as a citizen because [the plaintiff] represented, without
authority, that it was [the government employer’s] official speech.”).

                                              13
      We caution that this would be a different case if Rice-Lamar had used a

means of communication that was not under the exclusive control of her employer.

Although we intimate no view concerning the outcome of such a case, different

considerations would obviously come to the fore if Rice-Lamar had, for example,

written an editorial for a local newspaper, or even if she had attempted to

communicate her concerns privately to the City Commission. In the instant case,

however, Rice-Lamar attempted to publish her personal views in a document that

was both under the control, and vested with the authority, of her employer, the City

of Ft. Lauderdale. Civil servants cannot cry foul when they attempt to use their

government employers as stage dummies, and are then disciplined for it.



                                         B.

      Rice-Lamar also contends that the district court erred in granting summary

judgment to all the defendants on her claims of discrimination under Title VII of

the Civil Rights Act of 1964, and 42 U.S.C. §§ 1981, 1983, and 1985(3).

      Under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct.

1817, 1824, 36 L. Ed. 2d 668 (1973), a plaintiff can establish a prima facie case

that she was discriminated against in violation of Title VII by showing: (1) she is a

member of a protected class; (2) she was subjected to adverse employment action;


                                         14
(3) her employer treated similarly situated employees who are not members of the

plaintiff’s class more favorably; and (4) she was qualified for the job or job benefit

at issue. See Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997). Once a

prima facie case is shown,

       the defendant must clearly set forth, through the introduction of
       admissible evidence, the reasons for the plaintiff’s rejection. The
       explanation provided must be legally sufficient to justify a judgment
       for the defendant. If the defendant carries this burden of production,
       the presumption raised by the prima facie case is rebutted, and the
       factual inquiry proceeds to a new level of specificity. . . .
              . . . [The plaintiff] now must have the opportunity to
       demonstrate that the proffered reason was not the true reason for the
       employment decision. This burden now merges with the ultimate
       burden of persuading the court that she has been the victim of
       intentional discrimination. She may succeed in this either directly by
       persuading the court that a discriminatory reason more likely
       motivated the employer or indirectly by showing that the employer’s
       proffered explanation is unworthy of credence.

Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255-56, 101 S. Ct.

1089, 1094-95, 67 L. Ed. 2d 207 (1981).11

       In the instant case, the district court found that even though

       there are genuine issues of material facts with respect to whether
       [Rice-Lamar] has established her prima facie case . . .[,] there are no
       genuine issues of material facts as to whether the City’s stated

       11
         The elements of a section 1983 claim of race or gender discrimination are the same as
the elements of a Title VII disparate treatment action. See Cross v. Alabama, 49 F.3d 1490,
1507-08 (11th Cir. 1995). The elements of a claim of race discrimination under 42 U.S.C. §
1981 are also the same as a Title VII disparate treatment claim in the employment context. See
Peterson v. BMI Refractories, 132 F.3d 1405, 1412 n.13 (11th Cir. 1998).

                                              15
       legitimate, nondiscriminatory reasons for its actions were pretextual. .
       . . [I]t is undisputed that [Rice-Lamar] was disciplined for refusing to
       follow her supervisors’ instructions. Although the subject matter of
       the dispute between [Rice-Lamar] and her supervisors involved race
       and gender discrimination, the City’s actions with respect to [Rice-
       Lamar] herself were not due to her race or gender. Rather, they were
       due to her insistence on including her own conclusions in the
       Affirmative Action Reports against her supervisors’ wishes.

Rice-Lamar v. City of Ft. Lauderdale, 54 F. Supp. 2d 1137, 1146 (S.D. Fla. 1998).

       Rice-Lamar does not dispute that she refused to alter substantially the

Affirmative Action Report, and she has failed to present any evidence indicating

that other insubordinate employees were treated more favorably. Cf. Reeves v.

Sanderson Plumbing Prods., Inc., __ U.S. __, __, 120 S. Ct. 2097, 2107, __ L. Ed.

2d __ (2000) (finding error in grant of judgment as a matter of law to defendant in

an age discrimination claim, in part because plaintiff “made a substantial showing

that [defendant’s] explanation [for the adverse employment action] was false”). In

response to a properly supported motion for summary judgment, “an adverse party

may not rest upon the mere allegations or denials of the adverse party’s pleadings,

but . . . must set forth specific facts showing that there is a genuine issue for trial.”

Fed. R. Civ. P. 56(e).12 Because Rice-Lamar has failed to present any evidence

       12
         Rice-Lamar argues that the defendants never alerted her that part of the City’s
nondiscriminatory rationale for her discharge was her insubordination in connection with the
1996 Affirmative Action Report. Defendants’ answer to plaintiff’s complaint, however, states
that “Defendants admit that Plaintiff was suspended and then terminated for distributing the
1996 Affirmative Action Report . . . to senior management employees without obtaining the

                                              16
demonstrating that the City’s proffered explanation is pretextual, the district court

did not err in granting summary judgment to the defendants on her discrimination

claims.13



                                             IV.

       For the foregoing reasons, we AFFIRM the district court’s grant of summary

judgment to the defendants on all claims.

       AFFIRMED.




prior approval of her supervisors.”
       13
         Our disposition of Rice-Lamar’s discrimination claims obviates the need for us to
address her conspiracy claim under 42 U.S.C. § 1985(3).
       We affirm without discussion the district court’s denial of Rice-Lamar’s motion to amend
her complaint to state a claim of retaliation under Title VII.

                                              17
