David W. Fitzgibbon v. Fulton County, Georgia

D
       USCA11 Case: 20-11583   Date Filed: 01/11/2021   Page: 1 of 10



                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 20-11583
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:17-cv-03718-SDG



DAVID W. FITZGIBBON,

                                                          Plaintiff-Appellant,

                                 versus

FULTON COUNTY, GEORGIA,
THE FULTON COUNTY BOARD OF ASSESSORS,

                                                        Defendants-Appellees.

                         ___________________

               Appeal from the United States District Court
                  for the Northern District of Georgia
                     ________________________

                           (January 11, 2021)

Before MARTIN, ROSENBAUM, and BRANCH, Circuit Judges.

PER CURIAM:
           USCA11 Case: 20-11583     Date Filed: 01/11/2021   Page: 2 of 10



      David W. Fitzgibbon appeals the district court’s grant of summary judgment

in favor of his former employers, Fulton County, Georgia and the Fulton County

Board of Assessors. Specifically, he appeals the grant of summary judgment on

his retaliation claim brought under Title VII of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C. § 2000e-3(a). Fitzgibbon argues the district court erred in

granting summary judgment against him, because (1) he presented evidence that

his belief that he engaged in a protected activity was objectively reasonable, and

(2) he also established a causal connection between his protected activity and his

termination and that his protected activity was the “but-for cause” of his

termination. After careful review, we affirm.

                                         I.

      Fitzgibbon, who is white, served as the chief tax appraiser of Fulton County

Tax Assessor’s Office beginning in 2012. The primary function of the Tax

Assessor’s Office is to produce a timely and accurate tax digest every year. The

chief tax appraiser’s job is to “compile[] a consolidation report containing

information about parcels of property from which the net taxable digest is

calculated,” which is then submitted to the Board of Assessors for approval. After

additional review, the tax digest is ultimately submitted to the Department of

Revenue.




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      In 2016, while Fitzgibbon was serving as the chief tax appraiser, Fulton

County experienced difficulties producing the tax digest in a timely and accurate

manner. These difficulties included erroneous valuation calculations. As a result,

the Department of Revenue gave the County an extension to September 1, 2016 to

submit its tax digest, which caused a two-month delay in the collection of taxes.

This delay created a host of “complications and distractions” for local

governments. On August 19, 2016, the Board of Assessors called for a closed

meeting, expressing that it was “extremely concerned about the delays associated

with the tax digest and wanted to discuss a plan of action to remedy any future

problems.” Fitzgibbon, as the chief tax appraiser, was not invited to attend.

However, Fitzgibbon was aware of the meeting and knew that he was the subject

of the meeting.

      Meanwhile, that same year, Fitzgibbon and the Tax Assessor’s Office

received a series of anonymous complaints from employees alleging that

Fitzgibbon and certain others in management were creating a racially hostile work

environment. As a result, the Department of Human Resources Management and

the Office of Diversity and Civil Rights Compliance initiated investigations, which

culminated in a Workplace Environment Assessment Report and an Executive

Summary (the “Human Resources Report”), dated August 24, 2016. The Human

Resources Report detailed employee complaints of management, and



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recommended actions for improving morale in the office. It did not, however,

recommend any disciplinary action against Fitzgibbon.

      When Fitzgibbon was provided a copy of the Human Resources Report on

August 26, 2016, he responded with an email on August 29, 2016 (the “August 29

email”), sent to (1) the personnel director for Fulton County, (2) members of the

Board of Assessors, and (3) five other individuals. In that email, Fitzgibbon

alleged “reverse discrimination” based on race.1 Many of members of the Board of

Assessors found Fitzgibbon’s email “unprofessional.”


      1
          The email stated the following:

               It is very apparent that after nine months in which you were
               supposed to interview all the Assessor’s staff that you have drawn
               conclusions based on unsubstantiated statements from less than half
               of the staff, and no supporting evidence. Those staff interviewed
               obviously included those that distributed the anonymous letters
               filled with lies and accusations that were not supported by facts or
               evidence and that any reasonable person would have discounted as
               a small faction of staff with a racial agenda against the only two
               caucasian managers in the Assessors’ Office.
               As the environment in the Assessors Office described in your report
               is in no way reflective of the true working environment in the
               Assessors Office, it becomes obvious that you are not qualified to
               conduct an impartial and thorough review as indicated by the report
               which bases the conclusions of, according to your staff investigators
               on a small faction of those interviewed, which in turn are less than
               one half of the total staff.
               It seems very apparent that your staff investigators, all African-
               American, and those interviewed, also African-American have an
               agenda that smacks of reverse discrimination and the sole purpose
               of those that seem so discontented is not to seek Justice but to bring
               about a change in leadership that would take the Assessors’ Office
               back to those days of incompetency so evident and so thoroughly
               described in the Department of Revenue’s Performance Review
               Board of 2006, and which has been completely changed under the



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      On August 28, 2016, the day before Fitzgibbon’s email, a member of the

Board of Assessors sent an email to the rest of the Board recommending that they

terminate Fitzgibbon. The Board of Assessors voted to terminate Fitzgibbon on

September 15, 2016.

      Fitzgibbon filed suit against Fulton County and the Board of Assessors

alleging, among other things, Title VII retaliation. Specifically, Fitzgibbon

claimed he was fired for sending the August 29 email, which he says alleged race

discrimination and thereby constituted protected activity under Title VII. He

alleged that his firing was thus unlawful retaliation. He also alleged that the reason

given for his termination—the delay of the tax digest preparation—was pretextual.

      As relevant to this appeal, Fitzgibbon and the Defendants filed cross-

motions for summary judgment on the Title VII retaliation claim. The district




             current leadership team.
             Before further comments or distribution of the report the following
             information needs to be furnished to me and the Board of Assessors’
             for review:
             Please send me the following data:
             •the race, gender and age of each staff interviewed
             •a list of questions asked each and their verbatim responses
             •any spreadsheets, group discussions, or method of analyzing the
             results of the interviews
             •specific instances of complaints or statements that would support
             the preposterous accusations other than personal observations or
             opinions
             •the race age and gender of every member or the interview panel and
             their professional qualifications and specialized training in these
             matters.
             I expect these items by close of business Wednesday, August 31.


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court denied Fitzgibbon’s motion and granted the Defendants’ motion. The court

found insufficient evidence to infer that Fitzgibbon’s subjective belief that he

engaged in a protected activity was objectively reasonable. The court said

Fitzgibbon failed to proffer specific evidence that racial animus motivated those

who participated in the investigation and produced the Human Resources Report.

The court also found that, even assuming Fitzgibbon had established that his email

was a protected activity, he could not meet his burden that the email was the but-

for cause of his termination, given that his termination was already in motion

before his participation in the alleged protected activity. Fitzgibbon timely

appealed.

                                        II.

      Title VII prohibits an employer from retaliating against an employee

“because he has opposed any practice made an unlawful employment practice . . .

or because he has 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). To establish a prima facie case of retaliation under Title VII, the

plaintiff must prove (1) he was engaged in a statutorily protected activity; (2) he

suffered an adverse action; and (3) a causal link existed between the protected

activity and the adverse employment action. Furcron v. Mail Ctrs. Plus, LLC, 

843 F.3d 1295

, 1310 (11th Cir. 2016).



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         USCA11 Case: 20-11583       Date Filed: 01/11/2021   Page: 7 of 10



      A plaintiff has the ultimate burden of showing that a retaliatory motivation

was the but-for cause of the adverse action. Univ. of Tex. Sw. Med. Ctr. v.

Nassar, 

570 U.S. 338

, 352, 

133 S. Ct. 2517

, 2528 (2013). Thus, to survive

summary judgment, a plaintiff must show that the complained of adverse decision

was because of his protected activity, and his employer would not have made the

decision but for his engagement in that protected activity.

Id. A plaintiff can

establish causation for prima facie purposes by showing a “very close” temporal

proximity between the statutorily protected activity and the adverse action.

Thomas v. Cooper Lighting, Inc., 

506 F.3d 1361

, 1364 (11th Cir. 2007) (per

curiam) (quotation marks omitted). However, “in a retaliation case, when an

employer contemplates an adverse employment action before an employee engages

in protected activity, temporal proximity between the protected activity and the

subsequent adverse employment action does not suffice to show causation.” Drago

v. Jenne, 

453 F.3d 1301

, 1308 (11th Cir. 2006) (emphasis added).

      We review de novo a district court’s grant or denial of summary judgment.

Weeks v. Harden Mfg. Corp., 

291 F.3d 1307

, 1311 (11th Cir. 2002). Summary

judgment is appropriate when the evidence, viewed in the light most favorable to

the nonmoving party, presents no genuine dispute as to any material fact and

compels judgment as a matter of law. Fed. R. Civ. P. 56(a); State Farm Mut. Auto.

Ins. Co. v. Duckworth, 

648 F.3d 1216

, 1219 n.5 (11th Cir. 2011). “All reasonable



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         USCA11 Case: 20-11583        Date Filed: 01/11/2021   Page: 8 of 10



inferences arising from the undisputed facts should be made in favor of the

nonmovant, but an inference based on speculation and conjecture is not

reasonable.” Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 

723 F.3d 1287

, 1294

(11th Cir. 2013) (quotation marks omitted). A “mere scintilla of evidence”

supporting the nonmoving party’s position will not suffice to survive summary

judgment. Brooks v. Cnty. Comm’n of Jefferson Cnty., 

446 F.3d 1160

, 1162 (11th

Cir. 2006) (quotation marks omitted).

                                        III.

      We conclude the district court did not err in granting summary judgment to

Defendants on Fitzgibbon’s retaliation claim. We need not reach the issue of

whether the August 29 email constitutes protected activity under Title VII, because

even assuming that it does, Fitzgibbon has not shown that he can meet his burden

of establishing but-for causation.

      Here, the district court found that even assuming that Fitzgibbon’s August

29 email constituted protected activity under Title VII, he could not establish that it

was the but-for cause of his termination. Specifically, the court found:

             [T]he record here is replete with evidence that
             [Fitzgibbon’s] termination from employment was already
             contemplated and in motion prior to his participation in
             alleged protected activity. In fact, [Fitzgibbon] had
             recently failed to perform an essential part of his job—the
             timely and accurate production of a tax digest.
             [Fitzgibbon] cannot show, on this record, that the



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         USCA11 Case: 20-11583       Date Filed: 01/11/2021    Page: 9 of 10



             termination of his employment would not have occurred
             but for his allegation of race discrimination.

      We conclude the district court did not err in finding that Fitzgibbon failed to

establish the causal connection required to establish a prima facie retaliation claim

because his termination was contemplated separate from, and before, he engaged in

any allegedly protected activity. This record shows that Fitzgibbon’s termination

was in motion even before he sent the email he claims as his protected activity.

The record shows that the Board of Assessors was considering termination due to

employee complaints about the “tense” and “unprofessional” work environment

Fitzgibbon reportedly created in the Tax Assessor’s Office. We know that the

Board of Assessors met ten days before Fitzgibbon sent his email to discuss the

problems caused by the faulty 2016 tax digest, and a Board member recommended

Fitzgibbon’s termination to the rest of the Board before Fitzgibbon ever alleged

discrimination. Although Fitzgibbon was fired two weeks after the August 29

email, the earlier discussions of termination precludes him from establishing a

causal connection based on temporal proximity alone. See 

Drago, 453 F.3d at 1308

(“[I]n a retaliation case, when an employer contemplates an adverse

employment action before an employee engages in protected activity, temporal

proximity between the protected activity and the subsequent adverse employment

action does not suffice to show causation.”).




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       Moreover, Fitzgibbon carries the ultimate burden of persuasion that the

reasons for his termination were pretextual and that the adverse employment action

was instead the result of intentional discrimination. See 

Furcron, 843 F.3d at 1310

–11. On this record, we cannot say the reasons discussed by officials for

firing him in advance of his emails—namely, the untimely preparation of the

required tax digest, and unprofessionalism detailed in the Human Resources

Report—were pretextual.2 Therefore, we affirm.

       AFFIRMED.




       2
          The record also contains evidence showing that another former chief tax appraiser, who
was African-American, was removed from her position in 2006 for failing to present a tax digest
in a timely manner, and that an assistant chief appraiser, a person of color, was also terminated
for creating an “unpleasant” work environment for employees.


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