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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14111
Non-Argument Calendar
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D.C. Docket No. 1:17-cv-00003-JRH-BKE
MALLORY C. JONES,
TROY A. MOSES,
Plaintiffs-Appellants,
versus
RAMONE LAMKIN,
Individually, and In his official capacity as Marshal of the
Civil and Magistrate Courts of Richmond County, Georgia,
AUGUSTA, GEORGIA,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Georgia
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(July 16, 2019)
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Before WILLIAM PRYOR, JILL PRYOR and GRANT, Circuit Judges.
PER CURIAM:
Mallory Jones and Troy Moses, both former deputy marshals of the Civil
and Magistrate Courts of Richmond County, Georgia, appeal the district court’s
grant of summary judgment in favor of their former employer, marshal Ramone
Lamkin, and Augusta, Georgia in their action raising First Amendment claims
under
42 U.S.C. § 1983 and retaliation claims under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e-3(a). Their claims stem from their termination
after they supported Lamkin’s opponent in the election for the position of marshal.
On appeal, they argue that the court erred in granting summary judgment on their
42 U.S.C. § 1983 claims because they, as deputy marshals, were not Lamkin’s alter
egos. In addition, they argue that we should reverse the grant of summary
judgment on their retaliation claims. After careful review, we affirm.
I. BACKGROUND
A. Factual History
The Richmond County 1 marshal’s office is a law enforcement agency in
Augusta, Georgia that provides security at various public buildings in the city and
1
The City of Augusta consolidated with Richmond County in 1995, and “Augusta,
Georgia” (“Augusta”) is the name of the consolidated government. See
1997 Ga. Laws 4024.
Because we conclude that no constitutional violation occurred, it is unnecessary for us to resolve
whether Jones and Moses, as deputies in the county marshal’s office, were employees of the
consolidated government.
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investigates and cites violations of certain laws and ordinances. The marshal holds
an elected position and carries out his duties through deputy marshals. Directly
below the marshal are the chief deputy, followed by the captain over administrative
services and the captain over the airport.
Jones was employed as a deputy marshal on and off from 1993 to 2016.
When Jones first was hired, the marshal for the county was Steve Smith. Smith
remained the marshal and hired Jones each time he returned. When Jones was re-
hired in 2003, Smith promoted him to the rank of lieutenant, and he eventually
achieved the rank of captain. Jones’s duties after 2003 were mostly administrative,
working with the community, and doing public speaking. He also helped develop
new policies and plans to grow the marshal’s office and managed deputy
certification.
Moses worked as a deputy marshal from 2008 to 2016. At the time of his
termination, Moses was a sergeant in the marshal’s office. His duties as a sergeant
were community relations and public speaking, going to schools and nursing
homes to teach safety classes, and attending meetings of neighborhood
associations.
In 2016, Lamkin decided to run for marshal of Richmond County against the
incumbent, Smith. Jones participated in Smith’s campaign and posted on social
media about things Smith had done for him over the years. As to Moses, Lamkin
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asked for his support, but Moses refused because he planned to run for the position
in 2020 and decided to support Smith in 2016. Moses wore campaign shirts
supporting Smith, took pictures with him to post on social media, and encouraged
his family and friends to support Smith.
Lamkin won the election in May 2016 and assumed office in January 2017.
Before Lamkin assumed office, Jones was informed by Scott Peebles, the incoming
chief deputy for marshal-elect Lamkin, that he was being let go from the marshal’s
office. Jones later met with Lamkin, who confirmed that Jones was being
terminated. Lamkin explained in his deposition that he terminated Jones because
captain of the marshal’s office was a policy-making position and he had questions
about Jones’s suitability for it. He said that he knew Jones had helped Smith in his
re-election campaign but that it was not a factor in the decision to terminate Jones.
Peebles also informed Moses that his services would no longer be needed
when Lamkin took office. Lamkin testified in his deposition that he chose to
terminate Moses because Moses planned to run for marshal in the next election,
which Lamkin felt would affect the cohesiveness of the office. He denied that
Moses’s support of Smith influenced his decision.
B. Procedural History
Jones and Moses alleged in their complaint against Lamkin and Augusta that
they were terminated in retaliation for supporting Smith in the election. They
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raised (1) First Amendment claims under § 1983 against both defendants and (2) a
retaliation claim under Title VII against Lamkin.
After the close of discovery, Lamkin and Augusta separately moved for
summary judgment. They both argued that even if motivated by their support of
Smith, the plaintiffs’ termination was permissible under the Elrod-Branti standard 2
because loyalty to the marshal and his policies was an appropriate requirement for
effectively performing their duties. They also argued that the plaintiffs could not
make out a prima facie retaliation claim because they could not prove a causal
connection between any protected activity and their termination.
The district court granted the motions for summary judgment. First, the
court addressed the plaintiffs’
42 U.S.C. § 1983 claims. It determined there was no
dispute that Lamkin terminated the plaintiffs for supporting Smith. But it found
that the plaintiffs, as deputy marshals, were the alter egos of the marshal when they
were terminated, and thus it concluded Lamkin did not violate their First
Amendment rights by terminating them. Because it determined that no
constitutional violation occurred, the court declined to address whether Augusta
could be liable under § 1983. As to the plaintiffs’ retaliation claim, the court found
2
The Elrod-Branti standard derives from two United States Supreme Court decisions,
Elrod v. Burns,
427 U.S. 347 (1976), and Branti v. Finkel,
445 U.S. 507 (1980). See Ezell v. Wynn,
802 F.3d 1217, 1223 (11th Cir. 2015). As will be discussed more fully below, it is the standard
by which a court determines whether adverse employment actions based on political allegiance
contravene the First Amendment. See
id. at 1223-24.
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that they could not make out a prima facie case because political speech was not
protected activity under Title VII.
Following the grant of summary judgment, the plaintiffs appealed.
II. STANDARD OF REVIEW
We review an order granting summary judgment de novo, viewing “the
evidence and all reasonable inferences drawn from it in the light most favorable to
the nonmoving party.” Battle v. Bd. of Regents,
468 F.3d 755, 759 (11th Cir.
2006). Summary judgment is appropriate if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Shaw v. City of Selma,
884 F.3d 1093, 1098 (11th Cir. 2018)
(internal quotation marks omitted).
III. DISCUSSION
The plaintiffs argue that the district court erred in granting summary
judgment to Lamkin and Augusta because (1) they established that their First
Amendment rights were violated when Lamkin and Augusta terminated their
employment based on their political support for Lamkin’s rival, and (2) for their
retaliation claim, they met their burden of showing that they engaged in a protected
activity. We address each argument in turn.
A. Lamkin’s Termination of Jones and Moses Did Not Violate Their First
Amendment Rights Because Deputy Marshals Were Alter Egos of the
Marshal.
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Section 1983 of Title 42 makes any person acting under color of state law
liable to an injured party for depriving the injured party of his rights under the
Constitution.
42 U.S.C. § 1983.
The First Amendment guarantees the right of free speech and assembly
against state intrusion. U.S. Const. amend. I; N.Y. Times Co. v. Sullivan,
376 U.S.
254, 277 (1964). In general, the First Amendment protects public employees from
adverse employment actions or retaliation based on their political affiliations.
Ezell v. Wynn,
802 F.3d 1217, 1222 (11th Cir. 2015). For public employees, the
First Amendment’s protections are not absolute, however. Public employees are
protected from adverse employment actions based on political patronage only
when “political loyalty is an inappropriate requirement for the effectiveness of a
given employee’s position.”
Id. Whether a political patronage dismissal is
permitted under the First Amendment is determined using the Elrod-Branti
standard.
Id. at 1222-24.
In Elrod, a plurality decision, the controlling concurring opinion held that “a
nonpolicymaking, nonconfidential government employee can[not] be discharged or
threatened with discharge from a job that he is satisfactorily performing upon the
sole ground of his political beliefs.”
427 U.S. at 375 (Stewart, J., concurring)
(plurality opinion); see Marks v. United States,
430 U.S. 188, 193 (1977) (stating
that the opinion concurring on the narrowest ground may be regarded as the
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controlling opinion of a plurality decision). In Branti, the Court clarified that “the
ultimate inquiry is not whether the label ‘policymaker’ or ‘confidential’ fits a
particular position [but whether] the hiring authority can demonstrate that party
affiliation is an appropriate requirement for the effective performance of the public
office involved.”
445 U.S. at 518. This latter statement is the Elrod-Branti
standard. Ezell, 802 F.3d at 1223.
To determine whether the Elrod-Branti standard is met, we use a
“categorical approach” to determine whether the employee has the same statutory
powers and duties as the elected official. Id. at 1225. In applying the categorical
approach, we look only at what the employee was empowered to do under state or
local law, not the actual daily activities of the employee. Id. If the employee had
the same duties and powers as the elected official, she was the elected official’s
“alter ego,” and her termination based on her political affiliation did not violate the
First Amendment. Id.; see Underwood v. Harkins,
698 F.3d 1335, 1345 (11th Cir.
2012) (holding that a Georgia superior court clerk did not violate the First
Amendment when she discharged a deputy superior court clerk for running against
her; the deputy was her alter ego because the Georgia legislature gave persons
holding the position of deputy superior court clerk the same powers and duties as
the superior court clerk). If not, then we determine whether, as a factual matter,
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the effectiveness of the employee’s position required political loyalty. Ezell, 802
F.3d at 1224-25.
In Ezell, we applied the categorical approach and concluded that a deputy
sheriff was the alter ego of the sheriff under Georgia law. Id. at 1225-26. In
reaching this conclusion, we relied on state court precedent holding that deputy
sheriffs were the sheriff’s agents and state law granting sheriffs the authority to
appoint deputies at their discretion. See id.
We now examine the position of marshal and deputy marshal under Georgia
law. We begin with the history of the positions’ creation. The Municipal Court of
Augusta was established by the Georgia General Assembly in 1931; along with it,
the elected position of sheriff was created.
1931 Ga. Laws 270, 270-72. The law
was amended in 1971 to replace that court with the Civil Court of Richmond
County.
1971 Ga. Laws 2745, 2746. The position of sheriff was changed to an
appointed one, but, with the chief judge’s approval, the sheriff could name deputies
who would serve at his pleasure.
Id. at 2751. The deputies would have the same
duties and responsibilities as the sheriff.
Id. at 2751-52.
The law was amended again in 1974, see
1974 Ga. Laws 2410, 2416-17, and
the relevant amended language provides that: “The sheriff . . . shall have authority
. . . to name [his] deputies who shall hold said office at the pleasure of the said
sheriff.”
Id. at 2416. “[D]eputy sheriffs, if and when appointed under the terms of
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this Act, shall exercise all the functions and be subject to all the responsibilities
and requirements of the . . . sheriff of said court.”
Id. at 2417 (emphasis added).
In 1978, the Georgia General Assembly replaced the word “sheriff,” as it relates to
the Civil Court of Richmond County, with “marshal.”
1978 Ga. Laws 3341.
Thereafter, the sheriff of the Civil Court of Richmond County was known as the
marshal of that court.
Id. In 1999, the marshal was made an elected position, with
the authority to appoint deputies “who shall hold said office at the pleasure of the
marshal.”
1999 Ga. Laws 3508, 3508-09.
Applying the categorical approach here, we conclude that under Georgia law
a deputy marshal in Richmond County has the same powers and duties of the
marshal and, therefore, is his alter ego. See Ezell, 802 F.3d at 1225. As with the
clerk and deputy clerks in Underwood, the relevant state law here gave deputy
marshals the same powers and duties as the marshal. See 1974 Ga. Laws at 2417;
1978 Ga. Laws at 3341; Underwood, 698 F.3d at 1345. And, like the position of
sheriff we considered in Ezell, the marshal had the discretion to appoint and
remove deputies. See 1999 Ga. Laws at 3508-09; Ezell, 802 F.3d at 1225-26.
Because as deputy marshals the plaintiffs had the same powers and duties as the
marshal and because the marshal had the discretion to appoint and remove them,
they were his alter egos. See Ezell, 802 F.3d at 1225. Thus, Lamkin was permitted
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to terminate their employment based on a political reason, their support of his
opponent in the election. See id.
The plaintiffs argue at length on appeal that the district court erred in
concluding that deputy marshals were the alter egos of the marshal because the
marshal and the sheriff were not the same office. Their argument is misplaced,
however, because the district court’s conclusion that the deputy marshal was the
alter ego of the marshal was not based on a determination that the marshal was
equal to the sheriff. Rather, it was based on a correct determination that Georgia’s
state laws gave the deputy marshal the same powers and duties as the marshal.
The plaintiffs also contend that the district court erred in applying the
categorical approach and, instead, should have considered the actual duties that
Jones and Moses performed. They base this contention in part on the premise that
the district court erroneously found that the marshal was the equivalent of the
sheriff. As noted, however, the district court never made such a finding.
Relatedly, the plaintiffs assert that O.C.G.A. § 15-10-100(c.1)(2) prohibits
marshals from exercising powers vested in sheriffs. They contend that the 1978
and 1999 laws defining the powers of deputy marshals violated § 15-10-
100(c.1)(2) because those laws were derived from the 1974 laws defining the
powers of sheriffs. Because the 1978 and 1999 laws were invalid, the plaintiffs
argue, the court could not rely on them to apply the categorical approach. But the
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plaintiffs’ argument is unavailing because § 15-10-100 expressly permits marshals
to exercise powers vested in the sheriff if the law provides for it:
No person employed or appointed as a marshal . . . shall exercise any
of the powers or authority which are by law vested in the office of
sheriff or any other peace officer, including the power of arrest, except
as may be authorized by law.
O.C.G.A. § 15-10-100(c.1)(2) (emphasis added).
Jones and Moses also rely on local ordinances and municipal employment
policies to establish that they could not be terminated based on their political
activities. These policies say nothing, however, about the factors relevant to our
inquiry—the powers and duties of the marshal and his deputies. They therefore
have no bearing on whether the plaintiffs’ termination violated their First
Amendment rights or whether the categorical approach applied in this case. See
Ezell, 802 F.3d at 1224-25.
Because Jones and Moses have failed to show that their termination violated
their First Amendment rights, we affirm the district court’s grant of summary
judgment as to their § 1983 claims.
B. The District Court Did Not Err in Granting Summary Judgment on the
Plaintiffs’ Retaliation Claims.
On appeal, Jones and Moses contend that the district court erred in granting
summary judgment on their retaliation claims because they were terminated for
engaging in protected activity. As we concluded above, the plaintiffs’ termination
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did not violate their First Amendment rights, so we affirm the grant of summary
judgment on their retaliation claims to the extent they brought those claims under
42 U.S.C. § 1983. We turn next to the plaintiffs’ Title VII retaliation claims.
Title VII makes it unlawful for an employer to discharge an employee on the
basis of the employee’s “race, color, religion, sex, or national origin.” 42 U.S.C.
§ 2000e-2(a)(1). Title VII’s retaliation provision makes it unlawful for an
employer to retaliate against an employee because the employee “has opposed any
practice made an unlawful employment practice by this subchapter” or “made a
charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). A plaintiff
may establish a prima facie retaliation claim by showing that (1) he was engaged
in statutorily protected activity, (2) he suffered a materially adverse action, and (3)
there was a causal connection between the two events. Goldsmith v. Bagby
Elevator Co., Inc.,
513 F.3d 1261, 1277 (11th Cir. 2008).
The district court was correct to conclude that the plaintiffs failed to
establish a prima facie Title VII retaliation claim; they failed to come forward with
any evidence that they were terminated for opposing any employment practice
made unlawful by Title VII or for participating in any investigation, hearing, or
proceeding. See 42 U.S.C. § 2000e-3(a); Goldsmith,
513 F.3d at 1277. Moreover,
the plaintiffs have not expressly challenged that conclusion on appeal.
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IV. CONCLUSION
Because Jones and Moses have failed to show that the district court erred,
the grant of summary judgment is affirmed.
AFFIRMED.
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