Glenn Michael O'Neal, Jr. v. City of Hiram, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11556
Non-Argument Calendar
____________________
GLENN MICHAEL O'NEAL, JR.,
Plaintiff-Counter Defendant-Appellant,
versus
CITY OF HIRAM,
JODY PALMER,
in his individual capacity,
Defendants-Counter Claimant-Appellees,
TODD VANDE ZANDE,
in his individual capacity,
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2 Opinion of the Court 23-11556
Defendant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 4:19-cv-00177-TWT
____________________
Before W ILSON , N EWSOM, and L UCK , Circuit Judges.
PER CURIAM:
Glenn O’Neal appeals the district court’s grant of summary
judgment to Jody Palmer, the City Manager for the City of Hiram,
Georgia (“the City”), on his 42 U.S.C. § 1983 claim alleging retalia-
tion based on his exercise of his First Amendment freedom of
speech. After careful consideration, we affirm.
We review a district court’s grant of summary judgment de
novo. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1263 (11th
Cir. 2010). Summary judgment is appropriate only when no genu-
ine issue of material fact exists, and the moving party is entitled to
judgment as a matter of law. Id.; Fed. R. Civ. P. 56(a). In deter-
mining whether the movant has met this burden, courts view the
evidence in the light most favorable to the non-movant. Alvarez,
610 F.3d at 1263–64.
A response to a summary judgment motion cannot create a
new claim or theory of liability. Miccosukee Tribe of Indians of Fla. v.
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23-11556 Opinion of the Court 3
United States, 716 F.3d 535, 559 (11th Cir. 2013); see also Monaghan
v. Worldpay U.S., Inc., 955 F.3d 855, 859 (11th Cir. 2020). Instead,
at the summary judgment stage, the proper proceeding for amend-
ing a complaint is set forth in Federal Rule of Civil Procedure 15(a).
Miccosukee Tribe, 716 F.3d at 559.
State actors can be liable for depriving persons of any rights
secured by the Constitution. 42 U.S.C. § 1983. This means that a
government employer may not demote or discharge a public em-
ployee in retaliation for speech protected under the First Amend-
ment, but a public employee’s right to freedom of speech is not
absolute. Hubbard v. Clayton Cnty. Sch. Dist., 756 F.3d 1264, 1266
(11th Cir. 2014). First Amendment retaliation claims brought pur-
suant to § 1983 are governed by a four-part analysis. Moss v. City of
Pembroke Pines, 782 F.3d 613, 617 (11th Cir. 2015). As an initial mat-
ter, the district court must determine (1) whether the plaintiff’s
speech was made as a citizen and related to a matter of public con-
cern, (2) whether his First Amendment interests outweighed the
government’s interests in regulating speech to promote the effi-
ciency of the public services it performs through its employees, and
(3) whether his speech played a substantial or motivating role in
the government’s decision to take the alleged adverse employment
action. Id. at 617–18. As to the third prong, close temporal prox-
imity can suggest a causal relationship. Akins v. Fulton Cnty., 420
F.3d 1293, 1305 (11th Cir. 2005).
If the plaintiff makes this showing, the burden shifts to the
government to prove (4) that it would have taken the same adverse
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4 Opinion of the Court 23-11556
action even in the absence of the employee’s speech. Moss, 782
F.3d at 618. Whether the government would have made the same
decision is a question of fact for a jury, unless the facts are undis-
puted. Id. When evaluating summary judgment involving the
same-decision prong, we will engage in a “case-by-case approach
based upon the particular facts of each case in order to determine
whether the defendant would have fired the plaintiff absent the
protected speech.” Stanley v. City of Dalton, 219 F.3d 1280, 1294
(11th Cir. 2000). In each case, we look to the particular evidence in
the summary judgment record. Id. at 1293. To establish that it
would have made the same decision regardless of an employee’s
protected conduct, the government must show “that the legitimate
reason would have motivated it to make the same employment de-
cision.” Id.; see also Warren v. DeSantis, 90 F.4th 1115, 1134 (11th
Cir. 2024).
As an initial matter, the sole act of retaliation O’Neal alleges
in his complaint is that of his termination, and he may not now, in
his brief in opposition to the defendants’ motion for summary judg-
ment, attempt to functionally amend his complaint by alleging acts
of retaliation beyond that. See Miccosukee Tribe, 716 F.3d at 559.
As to the merits of his claim, regardless of whether O’Neal’s
constitutionally protected speech played a substantial or motivat-
ing role in his termination, the undisputed facts in the summary
judgment record unequivocally show that Palmer had other rea-
sons for terminating him. It is undisputed that O’Neal’s leave be-
gan on October 2, 2017. In Palmer’s letter informing O’Neal of his
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23-11556 Opinion of the Court 5
termination, Palmer referenced the City’s Employee Handbook,
which “contemplates that any leave of absence shall not exceed
twelve (12) months.” In his deposition, O’Neal admitted that he
had been unable to work for a year and could not return to work a
year after October 2, 2017, the date on which his leave began, and
he could not say with certainty when he would be able to return to
work even at the time of his deposition almost two years later.
Palmer also testified that O’Neal’s termination was based on the
policy found in the City’s Employee Handbook.
Undisputed evidence in the summary judgment record
therefore shows that O’Neal would have been terminated regard-
less of his protected speech. See Moss, 782 F.3d at 618; Stanley, 219
F.3d at 1293. Because no genuine issue of material fact exists that
the City met its burden in establishing that it would have taken the
same adverse action even in the absence of O’Neal’s speech, the
district court correctly granted summary judgment to the defend-
ants on O’Neal’s First Amendment retaliation claim. Alvarez, 610
F.3d at 1263.
AFFIRMED.
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