[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 18-11479

________________________

D.C. Docket No. 1:16-cv-21658-KMW

HARRIUS JOHNSON,

 Plaintiff – Appellant,

versus

MIAMI-DADE COUNTY,

 Defendant – Appellee.

________________________

Appeal from the United States District Court

for the Southern District of Florida

________________________

(January 30, 2020)

Before MARTIN, TJOFLAT, and PARKER,

* Circuit Judges.

PER CURIAM:

I.

* Honorable Barrington D. Parker, Senior United States Circuit Judge for the Second 

Circuit, sitting by designation.

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Harrius Johnson, a black male, was terminated from the Miami-Dade 

County Police Department (“MDPD”) for insubordination and disrespecting his 

superior officers.

1

 Johnson sued Miami-Dade County (“the County”), alleging that 

the real reasons for his termination were racial discrimination and unlawful 

retaliation in violation of 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 

1964 (“Title VII”), and the Florida Civil Rights Act (“FCRA”). Specifically,

Johnson asserted that the MDPD terminated him in retaliation for filing various 

complaints with the Equal Employment Opportunity Commission (“EEOC”).

2

 The 

District Court awarded the County summary judgment, concluding that Johnson 

could not show that the County’s nondiscriminatory, nonretaliatory reasons for 

terminating him were pretextual under the McDonnell Douglas framework.3

 

Johnson appeals.

First, we conclude that the District Court must reevaluate Johnson’s 

comparators evidence under the new standard that we announced in Lewis v. City 

of Union City, 918 F.3d 1213 (11th Cir. 2019) (en banc), which was decided after 

1 Additionally, Johnson was terminated because he failed to keep his home address 

updated per MDPD policy.

2 Johnson also pled a Title VII discrimination claim. However, the core of his grievance 

is a retaliation claim, and Johnson has not offered any evidence that his race or sex, as opposed 

to his engagement in allegedly protected conduct under Title VII, was the reason for his 

termination. Therefore, this opinion focuses on Johnson’s retaliation claim.

3 Separately, regarding Johnson’s § 1983 claim, the District Court quashed Johnson’s 

subpoena to depose the Mayor of Miami-Dade County, Mayor Carlos Gimenez, and granted a 

protective order barring future attempts to depose him for this case.

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the District Court ruled in this case. We therefore vacate that portion of the 

District Court’s judgment and remand for consideration of whether, under Lewis,

Johnson can establish pretext for any of the adverse employment actions taken 

against him.

4

Next, we affirm the District Court’s judgment that, in the absence of valid 

comparators, Johnson failed to establish a retaliation claim regarding (1) the 

actions of Lieutenant Ricelli in 2013, (2) the discipline he suffered from Captain 

White in 2015, and (3) Director Patterson’s decision to terminate him in 2015.

Finally, we affirm the District Court’s ruling that barred Johnson from 

deposing the Miami-Dade County mayor regarding Johnson’s 42 U.S.C. § 1983 

claim.

Accordingly, we affirm in part, vacate in part, and remand to the District 

Court for reconsideration.

II.

Relevant to this appeal are three sets of facts: (A) those related to Johnson 

and his supervisor, Lieutenant Ricelli, in 2013; (B) those related to discipline 

imposed on Johnson by Captain White in June of 2015; and (C) those related to 

Director Patterson’s decision to terminate Johnson in August of 2015.

4 The District Court need not consider Johnson’s claims against Lieutenant Ricelli 

regarding negative monthly evaluations or Ricelli’s alleged denial of Johnson’s personal leave 

for the reasons discussed infra Part IV.C.i.

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A.

Johnson claims Ricelli retaliated against him for reporting Ricelli’s and 

other officers’ misconduct in 2013. Specifically, Johnson claims that, as a result of 

his reports, (i) Ricelli began giving Johnson low monthly evaluations; (ii) Ricelli 

denied Johnson three days of personal leave; and (iii) Ricelli formally disciplined 

Johnson with a Record of Counseling (“ROC”) and a Disciplinary Action Report 

(“DAR”).

Turning to Johnson’s “reports,” in July of 2013, Johnson sent an email to 

Ricelli and other supervisors that complained that Ricelli had directed Johnson to 

alter the evaluation of another officer. In that evaluation, Johnson claimed that the 

other officer used racial slurs and profanity towards black citizens while 

performing her duties.

The next month (August of 2013), Johnson received an ROC because of the 

July email. The ROC stated that his email inappropriately expressed personal 

concerns and opinions about various officers outside of the proper chain of 

command. Johnson sent similar emails several more times, which the ROC 

deemed purposeful disregard for direct orders, and it warned Johnson that further 

disciplinary action was possible if his conduct continued. 

Then, in September of 2013, Johnson used a transfer evaluation for a black 

officer under his command to express concerns that Ricelli falsified a document

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that resulted in the revocation of personal vehicle privileges for that officer. 

Roughly a week later, the County issued Johnson a DAR that suspended him for 

five days. Johnson was issued the DAR because he was warned that it was 

improper to use the transfer evaluation to complain about Ricelli, but Johnson 

refused to alter his evaluation. Such conduct was found to be disrespectful and 

defamatory. Johnson appealed the DAR, but the hearing examiner agreed that 

Johnson’s conduct was insubordinate, disrespectful, uncooperative, and improper. 

However, some of Johnson’s complaints about other officers and Ricelli were 

ultimately sustained when he properly filed his grievances with the Internal Affairs 

department. 

B.

Jumping forward to 2015, on April 30, Johnson filed two Charges of 

Discrimination with the EEOC, alleging retaliation, race discrimination, and sex 

discrimination. 

Roughly two months later, on June 27, Johnson drafted a DAR against a 

subordinate officer who he believed had violated several MDPD policies. In a 

meeting regarding the DAR, Captain White asked Johnson to alter the report, but 

Johnson refused because he believed doing so would amount to unlawfully 

falsifying an official document. According to Johnson, White threatened that he 

would keep Johnson in his office all night until Johnson changed the DAR. 

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During the meeting, Johnson repeatedly stood up to leave the room, claimed 

he had “better things to do,” and otherwise was deemed to have been insubordinate 

and disrespectful. Therefore, on June 29, the County issued Johnson a DAR that 

suspended him for five days. According to Johnson, the DAR was, in reality, 

issued in retaliation for his April EEOC complaints, not because of his conduct at 

the meeting.

C.

Approximately six weeks later, on August 14, Johnson sought to issue 

another DAR against the same subordinate officer for additional policy violations. 

The next day, on August 15, White summoned Johnson to the office, where White 

presented Johnson with the June 29 DAR. White claims that Johnson left the room 

without permission or explanation to make copies of the DAR, walked out of the 

room multiple times without being excused, and finally stated that he did not “have 

time for this,” before walking out and slamming the door so hard that it jammed, 

stranding White in the room. Johnson claims none of this happened, and that he 

calmly left the room. We assume Johnson’s version is true for the purposes of 

summary judgment.

As a result of this meeting, on August 19, White drafted a DAR against 

Johnson based on White’s allegedly falsified version of the August 15 events. 

White recommended that Johnson receive a 20-day suspension for his conduct. 

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However, on August 25, Police Director JD Patterson overruled this 

recommendation and decided to terminate Johnson’s employment. Roughly five 

months later, on January 28, 2016, a final appeal meeting was held where Johnson, 

represented by a member of the Professional Law Enforcement Association, was 

permitted to provide his version of the August 15 events. Patterson upheld the 

termination.

D.

Johnson sued the County, alleging that the County engaged in various illegal 

conduct. As relevant to this appeal, Johnson alleged racial discrimination and 

unlawful retaliation in violation of Title VII, § 1983, and the FCRA. In the District 

Court, both parties moved for summary judgment on these claims. The Court 

found that, even assuming Johnson could make a prima facie showing of 

discrimination or retaliation, the County was entitled to summary judgment. The 

County was entitled to summary judgment because, under the McDonnell Douglas

framework, Johnson had not demonstrated a genuine issue of material fact 

regarding whether the County’s non-discriminatory reasons for the adverse 

employment actions against Johnson were pretextual. Specifically, the Court 

found that Johnson had not presented evidence that similarly situated employees 

were treated dissimilarly (i.e., Johnson had not presented any “valid comparators”), 

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and it rejected Johnson’s argument that his evidence showed that the County 

inadequately investigated his claims of discrimination.5

 Johnson appeals.

III.

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

Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257, 1264 (11th 

Cir. 2009). “We may affirm on any ground supported by the record.” LeCroy v. 

United States, 739 F.3d 1297, 1312 (11th Cir. 2014).

IV.

A.

When a Title VII retaliation claim (such as Johnson’s) is based on 

circumstantial evidence, this Circuit utilizes the three-part McDonnell Douglas6

burden-shifting framework. Kidd v. Mando Am. Corp., 731 F.3d 1196, 1202 (11th 

Cir. 2013). 

“First, the plaintiff must establish a prima facie case, which raises a 

presumption that the employer’s decision was more likely than not based upon an 

impermissible factor.” Richardson v. Leeds Police Dep’t, 71 F.3d 801, 805 (11th 

5 In the District Court and in his brief on appeal, Johnson argued that he could prove 

pretext by showing that the County failed to adequately investigate claims of discrimination. We 

agree with the District Court that this claim is clearly belied by the record, among other reasons, 

because once Johnson complained in the appropriate channels, some of his most serious 

accusations were sustained by the MDPD.

6 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).

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Cir. 1995). To establish a prima facie case of retaliation, a plaintiff must show: 

“(1) that he engaged in statutorily protected expression; (2) that he suffered an 

adverse employment action; and (3) that there is some causal relationship between 

the two events.” Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997), 

abrogated on other grounds by Lewis v. City of Union City, 918 F.3d 1213 (11th 

Cir. 2019) (en banc).

Second, once the plaintiff establishes a prima facie case, the burden shifts to 

the defendant to offer a legitimate, nondiscriminatory reason for its employment 

decision. Richardson, 71 F.3d at 805.

Third, if the defendant offers a legitimate, nondiscriminatory reason for its 

employment decision, the burden shifts back to the plaintiff to establish that the 

reason offered by the defendant “was not the real basis for the decision, but a 

pretext for discrimination.” Id. at 806.

Additionally, when, as here, a plaintiff attempts to use Title VII and 42 

U.S.C. § 1983 as parallel remedies for the same allegedly unlawful employment 

discrimination, the elements of the two causes of action are identical, Cross v. 

Alabama, 49 F.3d 1490, 1508 (11th Cir. 1995), and identical methods of proof, 

such as the McDonnell Douglas framework, are used for both causes of action, 

Richardson, 71 F.3d at 805. And because the FCRA is based on Title VII, 

decisions construing Title VII apply to the analysis of FCRA claims. Harper v. 

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Blockbuster Entm’t Corp., 139 F.3d 1385, 1387, 1389–90 (11th Cir. 1998). 

Therefore, all of Johnson’s claims are governed by the McDonnell Douglas

framework.

B.

We first address the District Court’s ruling that Johnson did not present valid

comparators evidence.

In a Title VII retaliation case, a plaintiff can attempt to establish that his 

employer’s proffered reason for its employment decision was a pretext for 

unlawful activity by showing that the employer treated similarly situated 

employees differently—i.e., by showing that valid “comparators” were treated 

differently than the plaintiff. See Lewis, 918 F.3d at 1223 n.9 (“Evidence 

necessary and proper to support a plaintiff’s prima facie [Title VII discrimination] 

case may of course be used . . . [at the tertiary pretext stage] to demonstrate that the 

defendant’s explanation for its conduct was pretextual.”).

The District Court evaluated Johnson’s comparators before this Court

changed the standard for considering such evidence in Lewis. There, we concluded 

that the traditional “nearly-identical test is too strict,” and held that the new 

standard is “show[ing] that [the plaintiff] and [his] comparators are ‘similarly 

situated in all material respects.’” Id. at 1224. We therefore vacate the District 

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Court’s ruling on Johnson’s comparators evidence and remand to the District Court 

for reconsideration of the evidence in light of our guidance in Lewis.

7

C.

We next determine whether Johnson can carry his burden under McDonnell 

Douglas on any of his retaliation claims in the absence of valid comparators

evidence. We conclude that he cannot.

Johnson alleges various retaliatory acts that concern three sets of facts: (i) 

Lieutenant Ricelli’s actions in 2013; (ii) Captain White’s disciplinary actions in 

June of 2015; and (iii) Director Patterson’s decision to terminate him in August of 

2015. We address each in turn.

i. 

We first consider Johnson’s retaliation claims regarding Johnson’s superior 

officer, Lieutenant Ricelli, in 2013. 

Johnson claims that Ricelli unlawfully retaliated against Johnson because he 

reported Ricelli’s and other officers’ misbehavior. Johnson alleges the retaliation 

occurred in three ways: (1) Ricelli began giving Johnson low monthly evaluations; 

7 Specifically, in Lewis, we stated the following principles: (1) a plaintiff does not have to 

prove “that she and her comparators are identical save for their race or gender;” and (2) it is not

necessary that a plaintiff and her comparators have “precisely the same [job] title[s]” or 

functions. Id. at 1227. However, ordinarily, a valid comparator: (a) “will have engaged in the 

same basic conduct (or misconduct) as the plaintiff;” (b) “will have been subject to the same 

employment policy, guideline, or rule as the plaintiff;” (c) will have been “under the jurisdiction 

of the same supervisor as the plaintiff,” but not invariably so; and (d) “will share the plaintiff’s 

employment or disciplinary history.” Id. at 1227–28.

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(2) Ricelli denied him three days of personal leave; and (3) Ricelli formally 

disciplined Johnson with an ROC and a DAR. We conclude that the County is

entitled to summary judgment on these claims.

First, the negative monthly evaluations are not material adverse employment 

actions based on the facts of this case, and therefore cannot serve as the basis for a 

Title VII retaliation suit. A material adverse employment action is one that might 

have “‘dissuaded a reasonable worker from making or supporting a charge of 

discrimination.’” See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 

126 S. Ct. 2405, 2415 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 

(D.C. Cir. 2006)). Here, Johnson generally alleges that the negative evaluations 

“affected the terms and conditions of [his] employment, including [his] annual 

performance evaluation, disciplines issued, and other rights provided for under the 

Collective Bargaining agreement.” However, at no point does Johnson provide 

any support for his assertions or allege why a reasonable worker in his shoes would 

have been dissuaded from reporting allegedly retaliatory conduct because of these 

negative evaluations. Cf. Crawford v. Carroll, 529 F.3d 961, 974 (11th Cir. 2008) 

(finding that an unfavorable performance review, which rendered an employee 

ineligible for a merit pay increase that was due five months later, was a material 

adverse employment action). In fact, his claims about the changes in the terms and 

conditions of his employment are affirmatively negated by his own brief, in which 

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he says that “[a]t the time of his termination, Plaintiff was a supervisor who held 

the rank of Police Sergeant, with a successful three years of above satisfactory and 

outstanding employee evaluations.” Accordingly, Johnson has not established that 

the negative monthly evaluations were material adverse employment actions.

Second, Johnson cannot recover based on Ricelli’s alleged denial of 

Johnson’s request for personal leave because Johnson raised this argument for the 

first time in his reply brief. See United States v. Levy, 379 F.3d 1241, 1244 (11th 

Cir. 2004) (“[T]his Court . . . repeatedly has refused to consider issues raised for 

the first time in an appellant’s reply brief.”).

Third and finally, Johnson cannot recover for the formal discipline he 

suffered from Ricelli—namely, the ROC and the DAR—because Ricelli had 

legitimate, nonretaliatory reasons for disciplining Johnson, and Johnson has not 

offered evidence that these reasons were pretextual. 

Johnson was issued the ROC because he did not file his complaints against 

Ricelli and other officers in the proper channels, which was deemed an 

inappropriate attempt to circumvent the proper chain of command. When Johnson 

continued this conduct, he was warned that further discipline was possible. Then, 

when Johnson did not cease, he was issued a DAR. 

Promoting the chain of command and punishing insubordination are 

legitimate, important concerns for a police force, and Johnson has not offered 

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proof that these legitimate reasons were pretextual. In fact, when Johnson filed his 

complaints in the proper channels, some of his most serious complaints were 

sustained. This suggests that the County was not attempting to sweep Johnson’s 

complaints under the rug, but rather that Johnson’s inappropriate methods of 

complaining were the reason he was disciplined. Because Johnson offers no 

reason that this discipline was illegitimate or pretextual, he has not satisfied his 

burden under McDonnell Douglas.

8

ii.

We next address Johnson’s complaint about discipline imposed by Captain 

White in June of 2015. We conclude that the County was entitled to summary 

judgment on this claim. 

Johnson claims that White filed a DAR against Johnson because Johnson

filed two Charges of Discrimination with the EEOC in April of 2015. However, 

because the County has offered a legitimate, nondiscriminatory reason for its 

decision to discipline Johnson in June of 2015—namely, insubordination—the 

burden is on Johnson to establish that this proffered reason is pretextual. 

Johnson argues that he can establish pretext because his discipline occurred 

fifty-eight days after his EEOC complaint. But “[w]e have cautioned that ‘mere 

8 On remand, it is for the District Court to determine whether Johnson’s comparators 

evidence can nonetheless establish pretext and, thus, satisfy his burden regarding this claim.

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temporal proximity, without more, must be very close’ to suggest causation [in a 

Title VII retaliation case].” Jefferson v. Sewon Am., Inc., 891 F.3d 911, 926 (11th 

Cir. 2018) (internal quotation marks omitted) (quoting Thomas v. Cooper Lighting, 

Inc., 506 F.3d 1361, 1364 (11th Cir. 2007)). A three-to-four-month disparity 

between protected conduct and an adverse employment action is insufficient to 

establish pretext, Thomas, 506 F.3d at 1364, but a two-week disparity can be 

evidence that the proffered reason was pretextual, Hurlbert v. St. Mary’s Health 

Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006). However, even when the 

disparity is only two weeks, we have suggested that such proximity is “probably 

insufficient to establish pretext by itself.” See id.

Here, Johnson claims that the temporal proximity (nearly two months) 

between his protected conduct (filing complaints with the EEOC) and his adverse 

employment action (suspension) establishes that the County’s reason for 

suspending him (insubordination) was a pretext for retaliation. However, our cases 

have suggested that much shorter disparities are insufficient, standing alone, to 

establish pretext. See id. Therefore, because Johnson did not provide any other 

evidence of pretext, he has failed to satisfy his burden under McDonnell Douglas

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to prove that the legitimate reason proffered by the County was pretextual as 

related to the June 2015 DAR.9

iii.

Finally, we address Johnson’s complaints about the August 2015 events that 

ultimately resulted in his termination from the MDPD. 

The only possible claim that Johnson could have regarding the events is that 

the termination was retaliation for the April 2015 EEOC complaints.10 We 

conclude that the District Court properly awarded summary judgment to the 

County on this claim.

As discussed in Part IV.C.ii., Johnson cannot establish pretext solely based 

on the temporal proximity between protected conduct (his April EEOC complaints) 

and an adverse employment action (termination of employment) when such a large 

gap exists between the two events. However, unlike the June discipline, Johnson 

alleges that the August discipline was based, at least in part, on a falsified report of 

insubordination written by White. This fact, in addition to temporal proximity, 

might preclude summary judgment if it was White who terminated Johnson

because a reasonable jury could infer that the reason White falsified the 

9 As noted supra n.8, Johnson may be able to establish pretext on remand via valid 

comparators evidence.

10 As noted supra n.2, Johnson has not alleged any facts that could support a 

discriminatory discharge claim based on his race, sex, or national origin.

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disciplinary report against Johnson was retaliation for the EEOC complaints, at 

least when no other reason for such a falsified report was readily apparent. 

But that is not the case here because it was Patterson who ultimately decided 

to terminate Johnson in August of 2015, not White, and there is no evidence that 

Johnson’s EEOC complaints inspired Patterson to terminate Johnson (other than 

insufficient temporal proximity). And even if we could construe Johnson as 

alleging a “cat’s paw” argument, whereby White’s retaliatory motives could be 

imputed to Patterson, see Wright v. Southland Corp., 187 F.3d 1287, 1304 n.20 

(11th Cir. 1999) (an employer may be liable for the discriminatory intent of an 

employee who manipulates decisionmakers into terminating another employee by 

providing false information to the decisionmakers that leads to termination), 

Johnson’s argument would fail because Patterson considered both Johnson’s and 

White’s versions of the events before finalizing Johnson’s termination in January 

of 2016, see Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999) 

(finding that the cat’s paw theory requires “that the decisionmaker followed the 

biased recommendation without independently investigating the complaint against 

the employee” because “[i]n such a case, the recommender is using the 

decisionmaker as a mere conduit . . . to give effect to the recommender’s 

discriminatory animus” (per curiam) (emphasis added)). 

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As a result, we cannot conclude that Patterson merely “rubber-stamped” 

White’s allegedly retaliatory motive. Patterson chose to believe White’s version of 

the events—a decision that was well within his discretion—and it is not the proper 

function of this Court to second guess Patterson’s decision. See Damon v. Fleming 

Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999) (“We are not in 

the business of adjudging whether employment decisions are prudent or fair. 

Instead, our sole concern is whether unlawful discriminatory animus motivates a 

challenged employment decision.” (emphases added)); Nix v. WLCY Radio/Rahall 

Commc’ns, 738 F.2d 1181, 1187 (11th Cir. 1984) (“[An] employer may fire an 

employee for a good reason, a bad reason, a reason based on erroneous facts, or for 

no reason at all, as long as its action is not for a discriminatory reason.” (emphasis 

added)), abrogated on other grounds by Lewis v. City of Union City, 918 F.3d 

1213 (11th Cir. 2019) (en banc). 

Accordingly, the County is entitled to summary judgment regarding 

Johnson’s termination.11

V.

We finally address the District Court’s ruling that barred Johnson from 

deposing Carlos Gimenez, the mayor of Miami-Dade County. We review a district 

11 As noted supra n.8, Johnson may be able to establish pretext on remand via valid 

comparators evidence.

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court’s discovery rulings for an abuse of discretion. Harrison v. Culliver, 746 F.3d 

1288, 1297 (11th Cir. 2014).

Johnson argues that the District Court erred in precluding him from deposing

Gimenez with respect to Johnson’s 42 U.S.C. § 1983 claim. Specifically, Johnson

argues that he must be given the opportunity to depose Gimenez to establish 

municipal liability under Monell v. Department of Social Services, 436 U.S. 658, 

98 S. Ct. 2018 (1978), because Gimenez is a final policymaker for the County who 

allegedly ratified the retaliatory acts of subordinate County employees. 

But Johnson did not plead a ratification theory in his complaint, as the 

District Court correctly noted. And because Johnson did not plead a ratification 

theory in his complaint, the District Court correctly concluded that he was not 

entitled to depose Gimenez regarding that theory.

Additionally, Gimenez’s deposition testimony is not necessary for the theory

of municipal liability that Johnson did adequately plead—namely, a widespread 

practice or custom of racial discrimination or retaliation. All Johnson must prove

to prevail on a widespread practice claim is such a “longstanding and widespread 

practice [that it] is deemed authorized by the policymaking officials because they 

must have known about it but failed to stop it.” Brown v. City of Fort Lauderdale, 

923 F.2d 1474, 1481 (11th Cir. 1991) (emphasis added). In other words, Johnson 

does not need to prove that Gimenez had actual knowledge of constitutional 

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violations to prevail—Johnson must prove only that there were enough violations 

over a substantial enough period of time to show that Gimenez must have known

about the violations and, yet, failed to stop them. This information is accessible 

from sources other than Gimenez. Therefore, Gimenez’s deposition testimony is 

unnecessary, and the District Court did not abuse its discretion in denying Johnson 

the opportunity to depose him.

VI.

Accordingly, the District Court’s judgment is

AFFIRMED in part, VACATED in part, and REMANDED for 

reconsideration.

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TJOFLAT, Circuit Judge, specially concurring:

I concur fully in the judgment of the Court. I write separately because I 

disagree that parallel Title VII and § 1983 claims should be decided based on 

identical methods of proof, such as the McDonnell Douglas framework. 

To establish a 42 U.S.C. § 1983 claim against a municipality, “a plaintiff 

must show: (1) that his constitutional rights were violated; (2) that the municipality 

had a custom or policy that constituted deliberate indifference to that constitutional

right; and (3) that the policy or custom caused the violation.” McDowell v. Brown, 

392 F.3d 1283, 1289 (11th Cir. 2004) (emphases added). However, in this Circuit, 

when § 1983 and Title VII are used as parallel causes of action to remedy the same 

underlying discriminatory conduct, both claims are analyzed under the McDonnell 

Douglas framework for the purposes of summary judgment. In my view, it is 

improper to use McDonnell Douglas’s burden-shifting framework, which utilizes 

presumptions based on the statutory Title VII scheme, to analyze § 1983 claims 

which are necessarily constitutional in nature—even where the § 1983 claim is 

based on the same misconduct as the Title VII claim. In other words, McDonnell 

Douglas is properly used only to vindicate the rights protected by the Title VII 

statutory scheme. It should not be used outside of that narrow context. To the 

extent that cases in our Circuit suggest otherwise, I believe the issue should be 

reconsidered by this Court en banc.

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