Barry Richardson v. Dougherty County, GA

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 3, 2006
• Docket: 05-16370
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS ELEVENTH CIRCUIT No. 05-16370 MAY 3, 2006 Non-Argument Calendar THOMAS K. KAHN CLERK ________________________

D. C. Docket No. 03-00060-CV-WLS-1

BARRY RICHARDSON,

Plaintiff-Appellant,

versus

DOUGHERTY COUNTY, GA, OFFICE OF SHERIFF, DOUGHERTY COUNTY, GEORGIA, JAMIL SABA, individually and in his official capacity as Sheriff of Dougherty County, Georgia, DOUGLAS MCGINLEY, individually and is his official capacity as Colonel for Office of Sheriff of Dougherty County, Georgia, MARK SHIRLEY, individually and in his official capacity as Major for the Office of Sheriff of Dougherty County, Georgia, JOHN FIELDS, individually and in his official capacity as Captain for the Office of Sheriff of Dougherty County, Georgia,

Defendants-Appellees. ________________________

Appeal from the United States District Court for the Middle District of Georgia _________________________

(May 3, 2006)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

Barry Richardson appeals the summary judgment in favor of the Office of

the Sheriff for Dougherty County, Georgia, and several individual defendants in

their official and individual capacities and against Richardson’s complaint for

religious discrimination and retaliation under federal law and Georgia law, and

claims of libel, tortious interference with an employment relationship, negligent

retention, intentional infliction of emotional distress, breach of contract, and

violations of due process under Georgia law. We affirm in part and reverse and

remand in part.

I. BACKGROUND

Richardson, a Seventh Day Adventist, was employed from 1995 to 2002 as a

deputy with the Sheriff’s Office of Dougherty County. In June 2001, Richardson

advised his employer that he was a member of the Seventh Day Adventist Church

and, according to his religious beliefs, he could not work on the Sabbath, from

2 sundown on Friday until sundown on Saturday. Richardson requested an

accommodation to permit him not to work on the Sabbath. Richardson submitted a

written request on July 30, 2001. On August 10, 2001, the Sheriff’s Office

provided Richardson with two alternative accommodations: Richardson could

swap shifts with other deputies or take annual leave.

In October 2001, Richardson applied for and received a position as a deputy

in Central Control. After his transfer, Richardson notified his new supervisors of

his request for religious accommodation. Richardson was again informed that he

could take annual leave or swap shifts when he was assigned to work on the

Sabbath. Richardson was also advised that other departments might be able to

offer greater flexibility to accommodate him. From June 2001 until his termination

in June 2002, Richardson did not work on the Sabbath.

In May 2002, the Sheriff’s Office became aware of allegations that several

jailors had been involved in sexual misconduct while on duty. Lillie Green, a

deputy, alleged that she had sex with Richardson and had engaged in sexual

activity with five other deputies while at work and on duty. Richardson denied the

allegations. Three of the deputies admitted the allegations.

After an investigation, during which polygraph tests were taken, the

Sheriff’s Office determined that the allegations of sexual misconduct were truthful.

3 The deputies, including Richardson, were given the opportunity to resign or face

disciplinary action. All of the deputies, except Richardson, resigned.

Richardson’s supervisor then recommended that Richardson be terminated

and a personnel review hearing was held. The review board unanimously

supported the recommendation to terminate Richardson, and the Sheriff concurred.

Richardson was terminated in June 2002. Following his termination, Richardson

filed a charge of discrimination with the EEOC and received a right to sue letter.

Richardson filed suit against the Sheriff’s Office and several officials and alleged

multiple claims. The district court entered summary judgment against

Richardson’s complaint.

II. STANDARD OF REVIEW

We review the grant of summary judgment de novo. Lubetsky v. Applied

Card Systems, Inc., 296 F.3d 1301, 1304 (11th Cir. 2002). “Under this standard,

we view all facts and inferences reasonably drawn from the facts in the light most

favorable to the nonmoving party.” Id. Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show 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).

4 III. DISCUSSION

On appeal, Richardson makes five arguments: (1) the district court erred

when it denied his motion to strike the affidavits of three witnesses because the

affidavits relied in part on polygraph test results; (2) the district court erred when it

granted summary judgment against his complaint of religious discrimination

because there was no admissible evidence to support the legitimate non-

discriminatory reason proffered by the Sheriff’s Office; (3) the district court erred

when it ignored direct evidence of discrimination; (4) the district court erred when

it granted summary judgment against his complaint of retaliation; and (5) the

district court erred when it granted summary judgment against his claims under

state law on the ground of sovereign immunity when the defendants had liability

insurance. Because Richardson does not make any argument regarding other

aspects of the summary judgment, those arguments are abandoned or waived.

Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc., 162 F.3d 1290, 1308 n.43

(11th Cir. 1998).

A. The Motion to Strike was Properly Denied.

Richardson argues that the district court erred when it denied his motion to

strike three affidavits filed by the Sheriff’s Office. Richardson argues that the

affiants relied on polygraph test results, which were not admissible evidence. This

5 argument fails.

The affiants mentioned the results of a polygraph test not to prove the truth

of those results, but as an explanation of the investigation by the Sheriff’s Office.

The conclusion reached by the Sheriff’s Office following that investigation was the

legitimate non-discriminatory reason for Richardson’s termination proffered by the

Sheriff’s Office. The district court did not rely on the affidavits for any other

purpose.

The district court did not conclude that the allegations against Richardson

were truthful. The district court concluded that the Sheriff’s Office fired

Richardson because it believed the allegations were truthful. That conclusion was

a legitimate non-discriminatory reason.

B. The District Court Correctly Granted Summary Judgment on Richardson’s Discrimination and Retaliation Claims.

Richardson argues that the summary judgment against his claims of religious

discrimination was erroneous because there was direct evidence of discrimination

and no admissible evidence to establish a legitimate non-discriminatory reason for

his discharge. Richardson argues several theories of discrimination, and we

address each theory. The analysis is same under both Title VII and section 1983.

See Lee v. Russell County Bd. of Educ., 684 F.2d 769, 773 (11th Cir. 1982).

6 1. Direct Evidence

Richardson argues that there is direct evidence of discrimination on the basis

of three statements. First, Richardson alleges that the defendants told him they

were not going to accommodate him and that he needed to find another religion or

another job. Second, Richardson alleges that the defendants stated “You want

every Saturday off. We’re sick of this. I wish you would find another job.” Third,

Richardson alleges that he was referred to as a “preacher man,” a “minister,” and

was told he was “too preachy.” Richardson’s argument about these statements

fails.

“[D]irect evidence is ‘evidence, which if believed, proves [the] existence of

[a] fact in issue without inference or presumption.’” Akouri v. Fla. Dept. of

Transp., 408 F.3d 1338, 1347 (11th Cir. 2005) (quoting Burrell v. Bd. of Trs. of

Ga. Military Coll., 125 F.3d 1390, 1393 (11th Cir. 1997) (alteration in original).

“[W]e have defined direct evidence as evidence which reflects a discriminatory or

retaliatory attitude correlating to the discrimination or retaliation complained of by

the employee. . . . [O]nly the most blatant remarks, whose intent could mean

nothing other than to discriminate on the basis of some impermissible factor

constitute direct evidence of discrimination. If the alleged statement suggests, but

does not prove, a discriminatory motive, then it is considered circumstantial

7 evidence.” Id. (internal quotation marks and citations omitted). Because the

statements about which Richardson complains allow an inference of

discrimination, but do not prove a discriminatory motive in any employment

action, the statements are circumstantial evidence.

2. Failure to Accommodate

Second, Richardson argues that the defendants discriminated against him

because they failed to accommodate him. To establish a prima facie case of

discrimination based on a failure to accommodate religious beliefs, Richardson

was required to present evidence that “(1) he had a bona fide religious belief that

conflicted with an employment requirement; (2) he informed his employer of his

belief; and (3) he was discharged for failing to comply with the conflicting

employment requirement.” Beadle v. Hillsborough County Sheriff’s Dept., 29

F.3d 589, 592 n.5 (11th Cir. 1994). If a prima facie case is established, the burden

shifts to the employer to present evidence either that it offered to accommodate the

plaintiff or that it could not reasonably accommodate him. Id. at 592.

Richardson failed to establish a prima facie case. Richardson produced no

evidence to support his contention that he was fired for his inability to work on the

Sabbath. The record is undisputed that the Sheriff’s Office offered Richardson at

least two accommodations. In the year after Richardson requested the

8 accommodation until his termination, Richardson never worked on the Sabbath.

3. Disparate Treatment

Third, Richardson argues that he was treated differently than other

employees who did not request a religious accommodation. “In evaluating

disparate treatment claims supported by circumstantial evidence, we use the

framework established by the Supreme Court in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.2d 668 (1973), and Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67

L. Ed.2d 207 (1981).” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th

Cir. 2004). Under this framework, the plaintiff must first establish a prima facie

case of discrimination by presenting evidence that he was a member of a protected

class and was subjected to an adverse employment action in contrast with similarly

situated employees outside the protected class. Id. If the plaintiff establishes a

prima facie case, the employer must articulate a legitimate non-discriminatory

reason for its actions. Id. Finally, “[i]f the employer satisfies its burden by

articulating one or more reasons, then the presumption of discrimination is

rebutted, and the burden of production shifts to the plaintiff to offer evidence that

the alleged reason of the employer is a pretext for illegal discrimination.” Id.

Richardson’s claim regarding his termination fails for at least two reasons.

9 First, Richardson did not establish a prima facie case of discrimination because he

did not present evidence that employees outside of his protected class were treated

more favorably than him. The deputies accused of sexual misconduct, all of whom

were outside of Richardson’s protected class, were, like Richardson, given the

option of resigning or termination. Second, the Sheriff’s Office articulated a

legitimate non-discriminatory reason for Richardson’s discharge, and Richardson

failed to offer any evidence to rebut head-on that legitimate reason. Richardson’s

argument about the accuracy of the investigation against him does not question

whether his employer actually relied on the results of that investigation to

discharge him.

Richardson’s other allegations of disparate treatment—that he was not

promoted because of religion and other employees were permitted to take time off

for school—fail. Although Richardson alleged that he was denied a promotion, for

which he was qualified, and the successful candidate for the promotion was outside

of his protected class, that evidence was not enough to establish a prima facie case.

Richardson failed to present evidence that the selected candidate was equally or

less qualified for the job. Id. at 1089. Richardson’s argument that other employees

were granted time off for school fails, because there is no evidence that the

accommodations other employees requested were comparable to the religious

10 accommodation Richardson requested.

4. Retaliation

To establish a prima facie case of retaliation under Title VII, Richardson

must present evidence that he engaged in statutorily protected expression, was

subject to an adverse employment action, and that there is a causal link between the

protected expression and the adverse action. Taylor v. Runyon, 175 F.3d 861, 868

(11th Cir. 1999). If Richardson establishes a prima facie case, the Sheriff’s Office

must present a legitimate reason for its employment actions. Id. After the

Sheriff’s Office proffers a legitimate reason, Richardson must rebut that reason.

Id.

The district court concluded that, because a year passed between the time

Richardson requested an accommodation and his termination, Richardson could

not establish a causal link between his protected expression and his termination.

Because Richardson alleges that he engaged in protected expression by

complaining about discrimination as late as May 2002, we assume that he

established a prima facie case, but Richardson failed to rebut the legitimate

nondiscriminatory reason for his termination, which was sexual misconduct. We

affirm the summary judgment on that alternative ground.

11 5. Hostile Work Environment

To establish a prima facie case for hostile work environment, Richardson

had to present evidence that (1) he belongs to a protected class, (2) he was subject

to unwelcome harassment, (3) the harassment was based on his religion, (4) the

harassment was sufficiently severe and pervasive to alter the terms of his

employment and create an abusive working environment, and (5) a basis for

holding the employer liable. Johnson v. Booker T. Washington Broad. Serv., Inc.,

234 F.3d 501, 508 (11th Cir. 2000). “Harassment is subjectively severe and

pervasive if the complaining employee perceives the harassment as severe and

pervasive, and harassment is objectively severe and pervasive if a reasonable

person in the plaintiff’s position would adjudge the harassment severe and

pervasive.” Id. at 509. To determine the objective severity of harassment, “courts

consider ‘the frequency of the conduct,’ ‘the severity of the conduct,’ ‘whether the

conduct is physically threatening or humiliating, or a mere offensive utterance,’

and ‘whether the conduct unreasonably interferes with the employee’s job

performance.’” Id.

Richardson alleges that he was subject to a hostile work environment

because his supervisor referred to him as “preacher man” more than fifty times and

other employees made comments regarding his religion and request for

12 accommodation. The district court correctly concluded that these allegations do

not rise to the level of severe and pervasive harassment. The alleged harassment

of which Richardson complains was not objectively severe or pervasive. The

conduct was not threatening or more than an offensive utterance, and the conduct

did not interfere with Richardson’s job performance.

C. The District Court Improperly Granted Immunity to the County, Sheriff and Deputies in Their Official Capacities on Richardson’s State Law Claims.

Richardson argues that the district court erroneously granted immunity to the

County, Sheriff and deputies in their official capacities on his state law claims

because the defendants had liability insurance. Richardson is correct. Georgia

courts have “repeatedly held that liability insurance protection purchased or created

by a governmental entity to insure against its own liability waives that entity’s

sovereign immunity.” Gilbert v. Richardson, 264 Ga. 744, 751, 452 S.E.2d 476,

482 (Ga. 1994). Because it is undisputed that the defendants have liability

insurance that would cover a judgment in this case, sovereign immunity is waived.

The summary judgment regarding Richardson’s claims against the County and its

officers, under Georgia law, is reversed. On remand, the district court may, in its

discretion, either exercise supplemental jurisdiction over Richardson’s remaining

claims, under Georgia law, or dismiss those claims without prejudice.

13 IV. CONCLUSION

The summary judgment against Richardson is

AFFIRMED IN PART AND REVERSED AND REMANDED IN

PART.