[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).
7
