               Case: 17-11604     Date Filed: 04/10/2018   Page: 1 of 4


                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 17-11604
                              Non-Argument Calendar
                            ________________________

                      D.C. Docket No. 6:15-cv-00096-JA-TBS



JOSEPH FETCHICK, III,

                                                                 Plaintiff-Appellant,


                                         versus


SEMINOLE COUNTY,
a political subdivision of the state of Florida,

                                                                          Defendant,

DENNIS M. LEMMA,
as Sheriff of Seminole County, Florida,

                                                                Defendant-Appellee.

                            ________________________

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

                                   (April 10, 2018)
              Case: 17-11604     Date Filed: 04/10/2018    Page: 2 of 4


Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Joseph Fetchick, III, appeals the district court’s grant of summary judgment

in favor of Dennis M. Lemma, the Sheriff of Seminole County (“the Sheriff”), in

his employment discrimination lawsuit alleging violation of his First Amendment

right to freedom of association, filed pursuant to 42 U.S.C. § 1983. On appeal,

Fetchick argues that the district court erred because it failed to properly consider

evidence he presented opposing summary judgment showing that the Sheriff

violated his right to freedom of intimate association, and in concluding that he

violated policies of the Seminole County Sheriff’s Office (“the Sheriff’s Office”).

In support, Fetchick highlights several pieces of evidence that he argues support

his contention that the Sheriff fired him for engaging in an intimate relationship.

      We review de novo a district court’s grant of summary judgment, viewing

the evidence in the light most favorable to the non-moving party. Quigg v.

Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1235 (11th Cir. 2016). The non-moving

party must respond with specific factual evidence, not mere allegations. Gargiulo

v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). If the non-moving party

does not respond, then summary judgment may be granted “if the motion and

supporting materials—including the facts considered undisputed—show that the

movant is entitled to it.” Fed. R. Civ. P. 56(e)(3). Summary judgment is properly


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granted only if “there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue

of material fact exists when “the evidence is such that a reasonable jury could

return a verdict for the non-moving party.” Quigg, 814 F.3d at 1235 (quotations

and alteration omitted).

      Section 1983 provides a private cause of action against any person who,

acting under color of state law, abridges rights created by the Constitution and laws

of the United States. See 42 U.S.C. § 1983. The First Amendment, in turn,

protects a public employee’s right to intimate association. See McCabe v. Sharrett,

12 F.3d 1558, 1562–63 (11th Cir. 1994). The right to intimate association protects

an individual’s “freedom to choose to enter into and maintain certain intimate

human relationships,” including “the personal relationships that attend the creation

and sustenance of a family—marriage, childbirth, the raising and education of

children, and cohabitation with one's relatives.” Id. at 1563.

      We analyze claims that a public employer violated an employee’s right to

intimate association under the test set forth by the Supreme Court in Mt. Healthy

City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274 (1977); McCabe, 12 F.3d at

1562; see also Smith v. Price, 616 F.2d 1371, 1376 (5th Cir. 1980). Under that

test, the employee first must show that the act for which he alleged he was fired

was constitutionally protected, and that it was a “substantial” or “motivating”


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factor in the decision to discharge him. Nicholson v. Gant, 816 F.2d 591, 599

(11th Cir. 1987). Once this is shown the burden shifts to the public official or

entity to show by a preponderance of the evidence that the employee would have

been dismissed in the absence of the protected act. Id. (citing Mt. Healthy, 429

U.S. at 287).

      The district court did not err in granting summary judgment because,

assuming arguendo that Fetchick’s romantic relationship was constitutionally

protected, the record does not show that his relationship was a substantial or

motivating factor in the Sheriff’s decision to terminate him. See McCabe, 12 F.3d

at 1562; Smith, 616 F.2d at 1376. Instead, undisputed evidence supports that the

Sheriff fired Fetchick for six policy violations, many of which involved underlying

conduct to which Fetchick admitted, including handcuffing a student who had not

committed a crime. We conclude that no reasonable jury could find on this record

that the Sheriff fired Fetchick for engaging in an intimate relationship.

Accordingly, we affirm the district court’s grant of summary judgment.

      AFFIRMED.




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