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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13170
Non-Argument Calendar
____________________
RALPH HOLMES,
Plaintiff-Appellant,
versus
THE CITY OF FT. PIERCE, FLORIDA,
a political subdivision of the State of Florida,
Defendant-Appellee,
DIANE HOBLEY-BURNEY,
as the Chief of Police for the City of Ft. Pierce, Florida, and
in her individual capacity, et al.,
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2 Opinion of the Court 20-13170
Defendants.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 2:18-cv-14461-JEM
____________________
Before WILSON, ROSENBAUM, and LUCK, Circuit Judges.
PER CURIAM:
Ralph Holmes, a white male, appeals the district court’s
summary judgment for the City of Fort Pierce on his racial discrim-
ination claims under Title VII and 42 U.S.C. sections 1981 and 1983.
After a thorough review, we affirm.
FACTUAL BACKGROUND
Officer Holmes’s Work History
In 2003, Officer Holmes was hired by the city as a probation-
ary police officer. During this probationary period, Officer Holmes
was placed on administrative leave, investigated, and ultimately
disciplined “for showing nude photos of a female co-worker at
work.” After his probation ended, Officer Holmes was assigned to
road patrol. In 2004, Officer Holmes was issued a written repri-
mand for violating a policy—which he admitted he knew and vio-
lated anyway—against initiating vehicle chases. In 2005, he was
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20-13170 Opinion of the Court 3
issued a written warning for violating a policy requiring an officer
to “have a departmental void form signed by a supervisor” before
a traffic citation can be voided.
In May 2009, Officer Holmes was reassigned to the police
administration unit, where he was “responsible for training other
officers, facilitating orders from the armor [sic], maintaining offic-
ers’ certifications, and ensuring compliance with the Florida De-
partment of Law Enforcement (FDLE) requirements.” One of Of-
ficer Holmes’s tasks was “assisting in the collection” of a kind of
banned handcuffs—with “hinges”—and assigning new handcuffs
that had chains. In 2010, while still in administration, Officer
Holmes was issued a written warning for failing to report to work.
In January 2016, Officer Holmes was transferred back to
road patrol at his request.
The Semer Stop
On April 23, 2016, just before midnight, Officer Holmes was
on duty and saw Demarcus Semer, an African-American male,
drive by; Mr. Semer was traveling approximately twenty miles per
hour over the speed limit in a residential neighborhood. Officer
Holmes pursued, first turning on his lights and, when Mr. Semer
did not immediately stop, briefly activating his siren. Officer
Holmes saw the car “shake, which indicated the driver could be
retrieving or concealing an item.” He called dispatch and reported
the car’s tag number but did not call for backup. After Mr. Semer
pulled over, Officer Holmes approached the car and asked for Mr.
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Semer’s driver’s license. At the same time, another officer, Ser-
geant Brian MacNaught, arrived and approached the passenger
side.
Officer Holmes smelled marijuana and saw a small amount
of shake 1 next to the steering wheel. He told Mr. Semer to exit the
car, but Mr. Semer refused. Officer Holmes repeated himself and
told Mr. Semer that he saw the marijuana. Officer Holmes then
tried to physically extract Mr. Semer from the car: to do so, Officer
Holmes reached in the window and opened the door. But while
Officer Holmes was trying to extract Mr. Semer, Mr. Semer drove
off, knocking Officer Holmes to the ground and injuring him. Ser-
geant MacNaught, who had been halfway in the passenger side
when Mr. Semer drove off, jumped into the car. Officer Holmes
then fired two rounds into the vehicle, aiming “where he thought
[Mr. Semer]’s head and neck were going to be to stop the vehicle.”
One of the bullets hit the passenger side trunk, in the direction of
Sergeant MacNaught.
After Officer Holmes fired at the car, Mr. Semer stopped the
car, exited it, and ran. Sergeant MacNaught drew his weapon and
followed, assuming that Mr. Semer had fired the shots because it
was “inconceivable to him” that Officer Holmes would have fired
at the vehicle knowing that Sergeant MacNaught was inside. Mr.
Semer turned and raised his hand, in which he “presumably” held
his cellphone but, based on the struggle in the car and the gunshots,
1 Shake, we’re told, is “marijuana seeds or remnants.”
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Sergeant MacNaught thought he was holding a firearm. Sergeant
MacNaught thought Mr. Semer was about to shoot him and so,
“fearing for his life,” he shot Mr. Semer, killing him.
The Aftermath
Several investigations were conducted after Mr. Semer’s
death. A grand jury determined that the officers’ use of force was
objectively reasonable under the manslaughter statutes. But an in-
ternal investigator found: “1) [Officer] Holmes failed to follow
training he had generated and presented in the past with respect to
executing a physical extraction; 2) acted ‘inherently dangerous’
[sic] when he discharged his weapon; 3) expressed a lack of willing-
ness to learn from this experience; 4) failed to comply with a super-
visor’s instruction to have his car camera fixed and seek training on
its use; and 5) possessed an unauthorized rifle at the time of the
stop.”
Deputy Chief Kenny Norris reviewed the internal investiga-
tor’s findings and concluded that Officer Holmes violated twelve
department policies, including “possession of an unauthorized fire-
arm; possession of unauthorized handcuffs; . . . insubordination as-
sociated with his failure to comply with a supervisor’s instruction;
and failure to demonstrate general proficiency.” Deputy Chief
Norris sent his findings to Chief Diane Hobley-Burney.
Chief Hobley-Burney, an African-American female, found
that Officer Holmes made several errors in the way that he handled
the stop. The chief found that: (1) Officer Holmes failed to call for
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backup when he believed that the driver was retrieving or conceal-
ing something; (2) Officer Holmes did not comply with his training
regarding officer demeanor; (3) he failed to ask Mr. Semer to turn
off the engine even though he planned to arrest Mr. Semer and
physically pull him out of the car; (4) Officer Holmes “fail[ed] to
locate [Sergeant] MacNaught beside him prior to attempting the
physical extraction and arrest” which “violated the very training
[Officer] Holmes designed and taught within the department”;
(5) Officer Holmes “fail[ed] to use good judgment when executing
the extraction and wrapping himself between the window and
open door of the car”; (6) he failed to consider “postponing” Mr.
Semer’s arrest once he had given dispatch the car’s tag number and
had Mr. Semer’s driver’s license; and (7) Officer Holmes failed to
use good judgment when he fired his gun at a fleeing vehicle, firing
in the same direction as another officer, while in a residential neigh-
borhood. Chief Hobley-Burney found each of these to be a signif-
icant violation of the police department’s policies and procedures.
The chief also determined that Officer Holmes had “disre-
garded” several other policies by having an unauthorized long gun
and unauthorized hinged handcuffs and by failing to follow his su-
pervisor’s orders to get the camera system in his patrol car fixed
and to get trained on the system’s proper use. She found that these
violations showed Officer Holmes’s lack of respect for the depart-
ment’s rules and that, in particular, his failure to maintain and use
his car’s camera system showed his lack of respect for the depart-
ment’s philosophy of “community-oriented policing.”
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Chief Hobley-Burney recommended that City Manager
Nicholas Mimms terminate Officer Holmes’s employment because
she found that his “flagrant lack of respect” for the rules and “utter
refusal” to follow them or take responsibility for his actions would
not be improved by training or discipline. City Manager Mimms,
an African-American male, agreed with the chief’s recommenda-
tion, and terminated Officer Holmes’s employment on May 8,
2017.
The city’s charter created a civil service appeals board that
“hear[d] appeals of any person in the classified service who [was]
dismissed, demoted, suspended[,] or transferred.” Officer
Holmes’s collective bargaining agreement permitted him to either
file an appeal with the civil service appeals board or “pursu[e] a
grievance through arbitration . . . . Under either process, the de-
partment head’s or city manager’s termination decision could be
sustained, reversed[,] or altered.” Officer Holmes chose to pursue
arbitration rather than appealing through the civil service appeals
board.
PROCEDURAL HISTORY
In 2019, Officer Holmes sued the city, alleging that the Afri-
can-American chief of police and city manager fired him because
he was white, in violation of 42 U.S.C. sections 1981 and 1983 and
Title VII. The city moved for summary judgment. It argued, un-
der Monell v. Department of Social Services,
436 U.S. 658 (1978),
that the city didn’t have an official policy of discriminating against
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8 Opinion of the Court 20-13170
white police officers and that City Manager Mimms’s decision to
fire Officer Holmes was not an official policy or custom because
City Manager Mimms was not a final policymaker. The city also
argued that Officer Holmes had not made a prima facie case of dis-
crimination because he had not shown that the city treated simi-
larly situated non-white employees more favorably than him.
Officer Holmes responded that City Manager Mimms was
the final policymaker because he, and not the arbitration panel, had
“ultimate authority” over employment decisions. Officer Holmes
also argued that he “ha[d] asserted several instances of fellow simi-
larly situated minority police officers (i.e. of the same rank) being
disciplined differently by the same individuals” for conduct that, he
argued, was “far more egregious in terms of ‘quality,’” than his con-
duct, including insubordination, “lying under oath on a job appli-
cation, associating with ‘known convicted felons,’ committing a
potential crime regarding [f]ederal housing assistance . . . ; remov-
ing a duty belt to fight a suspect; and also getting engaged in a phys-
ical altercation at an adult men’s club while off duty.”
The district court granted the city’s motion for summary
judgment on the sections 1981 and 1983 and Title VII claims. First,
the district court explained that to prevail on the section 1981
claim, brought through section 1983, Officer Holmes “must show
that the discrimination was a result of the [c]ity’s policy or custom.”
It was undisputed, the district court ruled, (1) that “City Manager
Mimms, together with Police Chief Hobley-Burney, terminated
[Officer] Holmes’[s] employment,” and (2) that the city charter
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20-13170 Opinion of the Court 9
“expressly creates” a civil service appeals board that “has the power
to affirm, disaffirm, reverse[,] or modify any adverse employment
action against an employee of the City of Fort Pierce.” The district
court concluded that, because the civil service appeals board had
the power to reverse the city manager’s employment decisions,
City Manager Mimms was not the final policymaker in Officer
Holmes’s termination. That Officer Holmes also had access to in-
dependent arbitration did not change the civil service appeals
board’s status as the city’s final policymaker.
Second, the district court granted summary judgment for
the city on both the sections 1981 and 1983 and Title VII claims
because Officer Holmes’s proposed comparators were “not similar
in all material respects” and so he was “unable meet his burden of
establishing a triable issue with respect to circumstantial evidence
of discrimination.” None of the comparators had similar discipli-
nary histories to Officer Holmes, nor did they “engage in conduct
of the same or similar magnitude”; “[n]o other comparator em-
ployee proffered by [Officer] Holmes was disciplined for use-of-
force violations leading to the loss of life.”
STANDARD OF REVIEW
We review de novo a district court’s grant of summary judg-
ment, using the same legal standards applied by the district court.
Alvarez v. Royal Atl. Devs., Inc.,
610 F.3d 1253, 1263 (11th Cir.
2010). Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and the
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10 Opinion of the Court 20-13170
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). In determining whether the movant has met this burden, we
view the evidence in the light most favorable to the non-moving
party. Alvarez,
610 F.3d at 1263–64.
DISCUSSION
As to the sections 1981 and 1983 claim, Officer Holmes ar-
gues that the district court erred in concluding that City Manager
Mimms wasn’t the final policymaker in his termination. As to the
Title VII claim, Officer Holmes contends that the district court
erred in concluding that he did not show any comparator evidence
to establish a prima facie case under McDonnell Douglas.2
The Sections 1981 and 1983 Claim:
City Manager Mimms Was Not a Final Policymaker
When a plaintiff sues a state actor under section 1981 for
damages for an alleged violation of his rights, he must proceed un-
der section 1983, as Officer Holmes has done. See Jett v. Dall. In-
dep. Sch. Dist.,
491 U.S. 701, 731 (1989) (“Congress intended that
the explicit remedial provisions of [section] 1983 be controlling in
the context of damages actions brought against state actors alleging
violation of the rights declared in [section] 1981.”); Butts v. County
of Volusia,
222 F.3d 891, 892 (11th Cir. 2000) (“[A] plaintiff must
use the remedial provisions of [section] 1983 to enforce against
state actors the rights created by [section] 1981.”). Under section
2 McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
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20-13170 Opinion of the Court 11
1983, a local government is responsible for an injury inflicted by its
employee only when the injury is inflicted by the “execution of
[the] government’s policy or custom, whether made by its lawmak-
ers or by those whose edicts or acts may fairly be said to represent
official policy.” Monell,
436 U.S. at 694. In other words, “[m]unici-
pal liability may arise with regards to an employment decision,
such as a termination, provided that the decisionmaker possesses
final authority to establish municipal policy with respect to the ac-
tion ordered.” Quinn v. Monroe County,
330 F.3d 1320, 1325 (11th
Cir. 2003) (emphasis and quotation marks omitted).
A “decisionmaker” is not always a “policymaker.”
Id. at
1325–26. Therefore, it is up to the court to determine whether the
decisionmakers are the final policymakers by “identify[ing] those
officials or governmental bodies who speak with final policymak-
ing authority for the local governmental actor concerning the ac-
tion alleged to have caused the particular constitutional or statu-
tory violation at issue.” McMillian v. Monroe County,
520 U.S.
781, 784–85 (1997) (quotation marks omitted). To do this, we look
to state law to understand the officials’ actual functions and we
look at the particular issue because an official may be a final policy-
maker for some actions but not others.
Id. at 785–86.
“Final policymaking authority over a particular subject area
does not vest in an official whose decisions in the area are subject
to meaningful administrative review.” Scala v. City of Winter
Park,
116 F.3d 1396, 1401 (11th Cir. 1997). Meaningful administra-
tive review is “review by a municipal official’s superiors.” Carter
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12 Opinion of the Court 20-13170
v. City of Melbourne,
731 F.3d 1161, 1167 (11th Cir. 2013). It is the
opportunity for meaningful review of an official’s actions that pre-
vents the official from being a final policymaker and precludes the
city from being liable for that official’s decisions. Scala,
116 F.3d at
1402–03. A decision is still subject to review even if individuals
must file an appeal to have the decision reviewed,
id. at 1402, and
even if review was available but not performed, Denno v. Sch. Bd.
of Volusia Cnty.,
218 F.3d 1267, 1277 (11th Cir. 2000) (holding that
review was available and the decisionmaker was not a final policy-
maker even though the plaintiff was denied review for not pursu-
ing it in the required timely fashion).
It is undisputed that Officer Holmes was terminated by City
Manager Mimms. And it is undisputed that City Manager Mimms
had the power to terminate a police officer under the city’s charter.
But the charter also created the civil service appeals board, which
was empowered to affirm, reverse, or modify adverse employment
actions by City Manager Mimms.
City Manager Mimms’s decision was therefore subject to
meaningful administrative review by the civil service appeals
board. Because this opportunity for review existed, City Manager
Mimms was not the final policymaker. See Scala,
116 F.3d at 1403
(“Because the [c]ity [c]ivil [s]ervice [b]oard has the power to reverse
any termination decision made by [the city manager] or [the de-
partment chief], neither of them is a final policymaker with respect
to termination decisions.”).
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20-13170 Opinion of the Court 13
Officer Holmes relies on Carter to contend that, because the
arbitration panel that reviewed his termination was not a final pol-
icymaker for the city, City Manager Mimms had to be the final pol-
icymaker in his termination. See 731 F.3d at 1167 (“An independ-
ent arbitrator, who is not otherwise an employee of the city, is not
vested with final policymaking authority for the city.”). Officer
Holmes argues that this case is like Carter. It is, but not in a way
that helps him.
In Carter, the acting police chief terminated the plaintiff,
who then could appeal the termination internally to the city man-
ager or externally to an independent arbitrator. Id. at 1166. The
city argued that these “two sources of administrative review . . .
made the decisions about which [the plaintiff] complain[ed] non-
final.” Id. at 1167. We disagreed with the city about the arbitrator
but agreed with it about the city manager. Id. We held that the
arbitrator could not be a final policymaker for the city because the
arbitrator stood outside the city government and thus did not make
policy for it. Id. But we also held that the plaintiff could not hold
the city liable under a final policymaker theory because he “failed
to present any evidence” that the city manager—who also had ap-
pellate review of the police chief’s decision—“made the decision to
fire him or ratified the decision.” Id.
Here, City Manager Mimms terminated Officer Holmes,
who then could appeal his termination internally to the civil service
appeals board or externally to an arbitration panel. The arbitration
panel stood outside the city government and thus could not be the
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14 Opinion of the Court 20-13170
final policymaker in Officer Holmes’s termination. See id. But City
Manager Mimms’s decision was not final because, just as the plain-
tiff in Carter could appeal internally to the city manager, Officer
Holmes could appeal internally to the civil service appeals board.
See Scala,
116 F.3d at 1403 n.5 (“[T]he availability of meaningful
[b]oard review prevents termination decisions made by [the chief]
or [city manager] from being ‘final’ for [section] 1983 purposes, and
that precludes the [c]ity from being held liable for those deci-
sions.”).
Because City Manager Mimms was not a final policymaker
for the city under Monell, the city could not be liable for City Man-
ager Mimms’s decision.
The Title VII Claim:
No Comparator Evidence
Officer Holmes next argues that the district court erred in
concluding that he did not establish a prima facie case of discrimi-
nation because his suggested comparators were not similarly situ-
ated.
In circumstantial evidence cases like Officer Holmes’s, we
apply the McDonnell Douglas test, which first requires that the
plaintiff make a prima facie case of discrimination. Maynard v. Bd.
of Regents,
342 F.3d 1281, 1289 (11th Cir. 2003). This prima facie
case has four parts.
Id. The plaintiff “must show that: (1) he is a
member of a protected class; (2) he was qualified for the position;
(3) he suffered an adverse employment action; and (4) he . . . was
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20-13170 Opinion of the Court 15
treated less favorably than a similarly-situated individual outside
his protected class.”
Id. The district court granted summary judg-
ment because Officer Holmes failed to meet the fourth part: he did
not point to similarly situated, non-white comparators who were
treated less favorably than he was.
To satisfy the fourth part of the test, a plaintiff must show
that he and his comparators were “similarly situated in all material
respects.” Lewis v. City of Union City,
918 F.3d 1213, 1226 (11th
Cir. 2019) (en banc). Ordinarily, a similarly situated comparator
will “have engaged in the same basic conduct (or misconduct) as
the plaintiff,” “will have been subject to the same employment pol-
icy, guideline, or rule as the plaintiff,” “will ordinarily (although not
invariably) have been under the jurisdiction of the same supervisor
as the plaintiff,” and “will share the plaintiff’s employment or disci-
plinary history.”
Id. at 1227–28. We do not look at “formal labels,
but rather [at] substantive likenesses.” Id. at 1228. Essentially, a
similarly situated comparator should be someone who “in an ob-
jective sense . . . cannot reasonably be distinguished.” Id. (quota-
tion marks omitted).
The district court concluded that, although Officer Holmes
proffered non-white comparators who were allegedly treated more
favorably following their violations of department policies than he
was following his, none of the comparators were similarly situated
to Officer Holmes. The district court explained that the compara-
tors “had very different disciplinary histories and did not engage in
conduct of the same or similar magnitude as [Officer] Holmes.”
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We agree with the district court that Officer Holmes’s sug-
gested comparators were not similarly situated to him in all mate-
rial respects. Officer Holmes suggested five non-white potential
comparators, but only one, Officer Tumblin, engaged in miscon-
duct similar to his. Officer Streeter engaged in no misconduct; he
simply went on medical leave for injuries. Officer Francois lied un-
der oath on her job application by failing to disclose that her hus-
band was a convicted felon. Officer Mathura’s misconduct in-
volved an improper search and seizure, “conduct unbecoming” (he
took off his duty belt to fight a suspect), and an off-duty altercation.
And Officer Saintilien engaged in one instance of insubordination
in which he failed to follow Sergeant MacNaught’s orders to go to
police headquarters to watch a prisoner.
Officer Tumblin’s misconduct was the most similar to
Holmes’s—he fired his weapon in the direction of a vehicle in a
residential neighborhood. However, Chief Hobley-Burney testi-
fied that the investigation into Officer Tumblin’s shooting was on-
going because the department was still “looking for the suspect in
the case” and that Officer Tumblin’s case was “completely different
from” Officer Holmes’s.
Other than Officer Tumblin, Officer Holmes’s alleged com-
parators did not engage in the same basic misconduct as Officer
Holmes. Even disregarding his violations of the department’s
handcuff, gun, and car camera policies, none of their misconduct
was basically the same as shooting at a fleeing car, in the direction
of another officer, in a residential neighborhood, during a traffic
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20-13170 Opinion of the Court 17
stop that resulted in a suspect’s death. Nor did their actions involve
the same rules and policies.
As to Officer Tumblin, he and Officer Holmes were not sim-
ilarly situated because they did not have similar disciplinary histo-
ries. Officer Holmes points to only one incident of potential mis-
conduct by Officer Tumblin: like Officer Holmes, Officer Tumblin
fired a gun at a car in a residential neighborhood. Because the in-
vestigation into Officer Tumblin’s shooting is ongoing, he has not
been disciplined for it. But even assuming the shooting becomes
part of Officer Tumblin’s disciplinary history, Officer Holmes’s dis-
ciplinary history included more than just the incident that led to
Mr. Semer’s death. In 2003, Officer Holmes was placed on admin-
istrative leave for showing nude photos of a female coworker at
work. The next year, he received a written reprimand for initiating
a vehicle chase. The year after that, he received a written warning
for failing to have a required form to void a traffic citation. Officer
Holmes received another written warning in 2010 when he failed
to report to work. And the investigation into Mr. Semer’s death
revealed that Officer Holmes had an unauthorized long gun and
unauthorized hinged handcuffs and had not complied with orders
to fix and get trained on his car’s camera. This extensive discipli-
nary history showed Officer Holmes’s failure, over several years,
to follow a variety of departmental policies, both related and unre-
lated to Mr. Semer’s death. Officer Holmes did not show that Of-
ficer Tumblin—or any of the other alleged comparators, for that
matter—had a similarly extensive disciplinary history.
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18 Opinion of the Court 20-13170
Because Officer Holmes did not present evidence of a simi-
larly situated comparator, the district court did not err in granting
summary judgment for the city. See Knox v. Roper Pump Co.,
957
F.3d 1237, 1248 (11th Cir. 2020) (“The district court did not err in
granting summary judgment on [the Title VII race discrimination]
claim because [the plaintiff]’s proffered comparators were not sim-
ilarly situated in all material respects.”). 3
AFFIRMED.
3 Officer Holmes mentions the convincing mosaic theory of discrimination in
his initial brief—but only in passing in one or two sentences at the tail end of
his brief. Because he does not present the convincing mosaic theory suffi-
ciently for our review, we do not discuss it further. See Sapuppo v. Allstate
Floridian Ins. Co.,
739 F.3d 678, 681 (11th Cir. 2014) (“[A]n appellant abandons
a claim when he either makes only passing references to it or raises it in a
perfunctory manner without supporting arguments and authority.”).
