                                                                        [PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                                                                      FILED
                                                            U.S. COURT OF APPEALS
                            _____________________             ELEVENTH CIRCUIT
                                                                   FEB 09 2001
                                No. 99-15246                   THOMAS K. KAHN
                           _____________________                     CLERK
                      D.C. Docket No. 98-01658-CV-DLG

ZANE W. MASON,

                                                           Plaintiff-Appellant,

                                       versus

VILLAGE OF EL PORTAL,
ANNA WARD,
L. D. KENNEDY,
and TONY FERGUSON,

                                                           Defendants-Appellees.

                             ____________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                            ____________________
                              (February 9, 2001)


Before EDMONDSON, BLACK and MCKAY*, Circuit Judges.

________________

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

      Plaintiff is a white male. When his term as chief of police in

Defendant municipality expired, the Village council voted 3-2 not to

reappoint him. He filed a complaint against the municipality pursuant to 42

U.S.C. § 1983 alleging in two separate counts racial discrimination and a

violation of his right to free speech. In a third count he sued the three

council members that voted against reappointing him for a conspiracy to

violate his civil rights under § 1985(2).

      After motions for summary judgment were filed, Plaintiff moved to

amend the conspiracy count to allege a § 1985(3) claim rather than a §

1985(2) claim. The court denied the motion because it was untimely.

Plaintiff then moved to dismiss that count without prejudice. The court

denied the motion. The trial court granted summary judgment in favor of

all defendants on all counts.

        I. SECTION 1983 CLAIM OF RACIAL DISCRIMINATION

      After thoroughly examining the record and applying proper summary

judgment standards, the trial court concluded that Plaintiff had established

a prima facie case of racial discrimination under the test established in

McDonell Douglas Corp. v. Green, 411 U.S. 792 (1973). It then proceeded


                                       2
to examine the legitimate nondiscriminatory reasons given by the three

Village council members. The record supports the trial court’s conclusion

that there remained a triable issue of fact whether council member

Kennedy’s reasons were pretextual but that no credible evidence supported

the claim that the other two council members’ legitimate reasons were

unworthy of belief. Without such evidence, we will not presume they

shared council member Kennedy’s discriminatory motives. See Gattis v.

Brice, 136 F.3d 724, 727 (11th Cir. 1998); Hill v. Clifton, 74 F.3d 1150,

1152 (11th Cir. 1996). Thus the critical issue on appeal is whether the

alleged racially discriminatory motive of only one member of a three-

member majority of a five-member council can give rise to municipal

liability. We agree with the trial court that it does not. See Church v. City

of Huntsville, 30 F.3d 1332, 1343 (11th Cir. 1994).

   II. SECTION 1983 CLAIM OF RETALIATION FOR FREE SPEECH

      Plaintiff also claims that he was not reappointed in retaliation for the

fact that he spoke out at the Village’s public safety commission (PSC)

meeting against what he perceived to be planned discrimination. At the

meeting in question, the PSC was discussing the replacement of a black

police officer who had resigned. The PSC chair noted that the Village


                                       3
council strongly supported hiring an Afro-American as the replacement.

Plaintiff, on the other hand, recommended a Hispanic reserve officer for the

position and stated in part:

      I would caution the committee as I’ve cautioned the council in
      the past about the emphasis placed on gender and/or race
      because those are not the primary considerations for hiring.
            Primary considerations, in fact, should not be given any
      bearing as to gender and/or race. The reason being that that
      places us in a precarious position from a legal standpoint with
      regard to other protected classes.

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

      The trial court noted that there followed a contentious exchange

between Plaintiff and several members of the PSC. The council vote not to

reappoint Plaintiff occurred on April 9, 1996, six months after the PSC

meeting.

      To prevail on his free speech retaliation claim, Plaintiff, as a

government employee, had to establish that (1) his speech constituted a

matter of public concern; (2) his First Amendment interests outweighed the

Village’s interest in promoting efficient delivery of public services; and (3)

his speech played a substantial part in the council’s decision not to

reappoint him. See Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th

Cir. 1989). Failure to establish any one of these three elements is fatal to


                                       4
Plaintiff’s claim. The trial court concluded that Plaintiff failed to establish

a triable issue of free speech retaliation on all three grounds. Specifically,

the court determined (1) that, in context, Plaintiff’s speech was not a matter

of public concern but rather was to further his own personal interest in

persuading the PSC to follow his hiring recommendations; (2) that even if

Plaintiff’s speech were a matter of public concern it did not outweigh the

Village’s interest in efficient operation of government; and, finally, (3)

applying the test set out in Mt. Healthy City Sch. Dist. Bd. of Educ. v.

Doyle, 429 U.S. 274 (1977), that insufficient evidence was presented to

show that his speech before the PSC was a substantial motivating factor in

the Village council’s decision not to reappoint him.

      Because an examination of the record clearly supports the trial court’s

Mt. Healthy determination, we need not address the other two reasons.

      The trial court’s correct summary of the record states:

      [Plaintiff’s] statements were made at the October 13, 1995, PSC
      meeting, yet the decision not to reappoint him did not occur
      until April of 1996, almost six months later. In fact, the only
      Village Councilmen present at the October 13, 1995, PSC
      meeting were DeRose, Dervali and Kennedy, two of whom
      voted in favor of reappointing Mason. Councilman Ward was
      not present at that meeting, nor was Councilman Ferguson, who
      did not become a member of the Village Council until January
      of 1996. . . . [Plaintiff] has not presented any evidence to show
      that Ward or Ferguson had knowledge of the statements made at

                                       5
      the October 13, 1995, meeting. Moreover, the record
      demonstrates that Kennedy and . . . [Plaintiff] had a
      longstanding conflict. It is undisputed that Kennedy wanted
      . . . [Plaintiff] to resign from his position four months prior to
      . . . [Plaintiff’s] speech.

Order on Summ. J. at 13-14.

      As we stated supra, there can be no municipal liability unless all

three members of the council who voted against reappointing Plaintiff

shared the illegal motive. Since there is no evidence that council members

Ward or Ferguson even knew of the statements Plaintiff made at the

October 13, 1995, meeting, we cannot find that all three council members’

votes not to reappoint Plaintiff were based on those statements.

                    III. SECTION 1985(2) CONSPIRACY

      Plaintiff claims that the three council members who voted not to

reappoint him conspired to violate his civil rights. We find no abuse of

discretion in the trial court’s refusal to permit Plaintiff to amend his

complaint, after motions for summary judgment had been filed, to change

this claim from § 1985(2) to one under § 1985(3).

      We agree with the trial court that the § 1985(2) claim fails for two

reasons. First, Plaintiff did not allege that the three individual defendants

interfered with the “due course of justice in any State or Territory.” 42


                                        6
U.S.C. § 1985(2); see Kimble v. O.J. McDuffy, Inc., 648 F.2d 340 (5th Cir.

1981) (a § 1985(2) conspiracy must be intended to interfere with a party or

witness’s right to attend or testify in federal court).

      Second, Plaintiff failed to establish invidiously discriminatory racial

animus behind a conspiratorial decision not to reappoint him. In substance,

the trial court correctly concluded that the record failed to show that at

least two of the council members were motivated by racial animus.

Without such evidence, there can be no showing of conspiracy–the key and

necessary element of Plaintiff’s § 1985(2) claim. 1

      For the foregoing reasons, the decisions of the trial court dismissing

all the claims are AFFIRMED.




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

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