[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-10856

________________________

D.C. Docket No. 2:13-cv-00176-MHT-PWG

JAMES LONG, 

 Plaintiff - Appellant,

versus

ALABAMA DEPARTMENT OF HUMAN RESOURCES, 

NANCY BUCKNER, 

Commissioner of the Alabama Department of Human

Resources, in her individual and official capacities, 

SHARON E. FICQUETTE, 

General Counsel for DHR, in her individual and official

capacities,

 Defendants - Appellees.

________________________

Appeal from the United States District Court

for the Middle District of Alabama

________________________

(May 31, 2016)

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2

Before ROSENBAUM, JULIE CARNES, and DUBINA, Circuit Judges.

JULIE CARNES, Circuit Judge: 

Plaintiff James Long appeals the district court’s order granting summary 

judgment on his race discrimination and retaliation claims under 42 U.S.C. § 1981 

and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 

dismissing without prejudice his state law claim under the Alabama State 

Employees Protection Act (“ASEPA”), Alabama Code § 36-26A-1 et seq. After a 

careful review of the record, and with the benefit of oral argument, we affirm the 

district court’s grant of summary judgment on Plaintiff’s federal race 

discrimination claim and reverse its grant of summary judgment on Plaintiff’s 

federal retaliation claim. We remand Plaintiff’s retaliation claim and his state law 

claim to the district court for proceedings consistent with this opinion. 

BACKGROUND

I. Facts

This case arises from Plaintiff’s employment with and termination from the

Alabama Department of Human Resources (“the Department”). The Department is 

a state agency that administers family and child welfare programs in Alabama. 

Plaintiff, a black male, worked as an attorney in the Department’s legal department 

from 1983 until he was terminated in 2012. At all times relevant to this litigation, 

Nancy Buckner was the Department’s Commissioner. As Commissioner, Buckner 

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was the final decisionmaker as to all Department employment decisions. Sharon 

Ficquette was the Department’s general counsel and Plaintiff’s direct supervisor 

from 2005 until he was terminated. 

A. Plaintiff’s Hiring and Promotions

Plaintiff was hired by the Department as an Attorney I, which was an entry 

level position under Alabama’s merit civil service system. He was promoted to 

Attorney II in 1984 and to Attorney III in 1987. Attorney III is the highest merit 

rank Plaintiff obtained while he worked at the Department.

1

 However, Plaintiff 

received a significant promotion outside the merit system in 2006, when he was 

appointed as the Department’s Deputy Attorney General (“Deputy AG”) by then 

Alabama Attorney General Troy King. As Deputy AG, Plaintiff served directly 

under the Department’s general counsel, Ms. Ficquette. 

Plaintiff was in the Deputy AG position when he was terminated. His duties 

in that position included representing the Department and its staff in litigation, 

reviewing and drafting legislation pertaining to the Department’s operations, 

supervising the Montgomery Regional Office and the Office of Criminal History 

Checks, and providing legal advice to Department staff members on issues related 

to their duties. 

B. The Unpaid Invoice Dispute 

 

1

 The general counsel is the only attorney in the Department’s legal department who holds the 

highest merit designation of Attorney IV. 

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1. Alabama’s Background Check Law

Alabama passed a law in 2000 requiring the Department to obtain criminal 

history information on individuals licensed to work in certain child care facilities 

and Department-sanctioned foster and adoptive homes. To meet the Department’s 

obligations under the law, Plaintiff established the Office of Criminal History 

Checks (“OCHC”) in 2001. Pursuant to the law, OCHC sent requests for criminal 

history information to the Department of Public Safety (“Public Safety”). The 

latter ran its own background checks for crimes committed in Alabama and 

obtained information from the FBI for crimes committed nationwide. When 

requested, Public Safety provided criminal history information to OCHC and then 

invoiced OCHC for these services. 

2. Invoice Backlog

Plaintiff hired Carolyn Rawls, a black female, to be the program manager of 

OCHC in 2003. In 2008, during Rawls’s tenure as program manager, a dispute 

arose between Public Safety and OCHC concerning a backlog of unpaid invoices. 

The dispute escalated and ultimately was submitted to the Alabama Board of 

Adjustment (“Board”), a state agency charged with settling monetary claims 

against other state agencies. 

During this adjustment process, Rawls was asked on two occasions to 

provide information necessary to verify claims for payment that Public Safety had 

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submitted to the Board. According to Department general counsel Ficquette, 

Rawls’s responses were untimely and incomplete. Ficquette also became aware, 

while the adjustment process was ongoing, that Rawls had directly told a Public 

Safety official that Public Safety would be eligible for payment in a specified 

amount after the adjustment hearing. Ficquette construed Rawls’s statement to 

Public Safety official as a promise of payment that Rawls was not authorized to 

make on behalf of the Department. Ficquette viewed the statement as improper 

and stated that it compromised the Department’s relationship with Public Safety. 

3. February 11, 2009 Reprimands

In early 2009, Ficquette reviewed the backlogged Public Safety invoices and 

the system Rawls had created to reconcile them with payments already made by 

the Department. Based on her review, Ficquette concluded that the reconciliation 

system was inadequate. As a result, on February 11, 2009, Ficquette issued a 

written reprimand to Rawls charging her with (1) failing to develop an adequate 

means of clearing invoices and paying bills to Public Safety, (2) failing to respond 

to requests for information necessary to resolve the invoice dispute, and (3) 

inappropriately communicating directly with Public Safety concerning its claims 

for payment. The reprimand stated that Rawls would receive a seven-point 

deduction on her next performance appraisal. 

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Ficquette also reprimanded Plaintiff on February 11, 2009 in connection 

with the OCHC unpaid-invoice dispute. In Plaintiff’s reprimand, Ficquette noted 

that OCHC had experienced recurring problems with bill reconciliation and that 

Rawls, while under Plaintiff’s supervision, had (1) failed to respond appropriately 

to requests for information necessary to resolve the current dispute with Public 

Safety and (2) improperly communicated directly with Public Safety during the 

adjustment process.2 The reprimand charged Plaintiff with inadequate supervision 

of OCHC, and stated that Plaintiff would receive a seven-point deduction on his 

next performance appraisal. 

Also in February 2009, Plaintiff and Rawls were removed from their OCHC 

supervisory roles and replaced in those roles by white employees Tommy Crabtree 

and Nancy Jinright. Although Plaintiff no longer supervised OCHC, he remained 

in his Deputy AG position. Rawls was briefly transferred to another section within 

the Department, but she resigned a few months after the transfer. 

4. Plaintiff and Rawls’s EEOC Charges

Plaintiff and Rawls filed EEOC charges against the Department alleging that 

the February 2009 reprimands were racially motivated. Although Plaintiff dropped 

his charge related to the 2009 reprimand, Rawls pursued her charge and filed a 

federal race discrimination suit against the Department on January 3, 2011. See 

 

2

 Ficquette had advised Plaintiff in April 2006 that OCHC needed closer supervision. 

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Rawls v. Alabama Dep’t of Human Res., 2012 WL 1319495 (M.D. Ala. 4/17/12). 

In support of the claims asserted in her suit, Rawls alleged that she was removed 

from her position at OCHC so that her job could be given to Crabtree, a white 

employee with less experience, education, and seniority. 

5. Rawls’s February 18, 2009 Performance Appraisal

During Rawls’s tenure at OCHC, Plaintiff was her rating supervisor and 

Ficquette was her reviewing supervisor. As rating supervisor, Plaintiff was 

responsible for conducting Rawls’s yearly performance appraisal in consultation 

with Ficquette. The Department’s written policy stated that rating and reviewing 

supervisors should agree on the results of an appraisal before the appraisal was 

discussed with the employee, and that the appraisal should then be signed by the 

reviewing supervisor and sent to the Department’s personnel office. 

Plaintiff met with Rawls on February 18, 2009 to conduct her appraisal for 

the January 1, 2008 to January 1, 2009 period. Instead of deducting seven points

in the appraisal for the reprimand Rawls received on February 11, 2009, Plaintiff 

indicated that Rawls had a zero disciplinary score, and he also gave her a total 

score of “exceeds standards” for job performance. Plaintiff testified that he did not 

deduct the points because he (1) did not agree with the reprimand and believed it 

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was illegal under Title VII and (2) thought the deduction was not required because 

the reprimand was issued outside the rating period that ended on January 1, 2009.

3

 

Plaintiff did not confer with Ficquette before conducting Rawls’s appraisal,

and he did not obtain Ficquette’s signature on the appraisal after he completed it. 

In addition, the appraisal was not sent to the Department’s personnel office, as 

required by Department policy. Plaintiff testified, however, that it was not 

common practice for him to discuss an employee appraisal with Ficquette prior to 

meeting with the employee and that he returned Rawls’s 2009 appraisal to the 

appropriate Department staffer, who should have forwarded it to Ficquette and 

then on to the personnel office. 

Rawls received a copy of the appraisal on the date Plaintiff discussed it with 

her, and she submitted it in support of her EEOC charge against the Department. 

Neither Ficquette nor Buckner was aware of the contents of the appraisal until it 

was produced during discovery in the Rawls litigation. 

C. Beason-Hammon Act Dispute

Plaintiff became embroiled in another dispute with Ficquette in late 2011. 

Earlier that year, Alabama passed the Beason-Hammon Act, which imposed 

 

3

 On the second point, the Department’s written policy did not expressly require a deduction for 

reprimands issued outside the rating period. Ficquette testified that the points should have been 

deducted from Rawls’s 2009 appraisal because the conduct that resulted in the reprimand 

occurred during the rating period, but Plaintiff testified that a deduction based on a reprimand 

issued outside the rating period would have violated personnel rules. 

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citizenship and immigration-status verification requirements on state agencies. 

Plaintiff and Ficquette were asked to provide legal opinions as to how the Act 

impacted the Department, and they disagreed about whether its requirements 

applied to foster home approvals and church day-care exemptions issued by the 

Department, with Long believing these types of approvals were “licenses” subject 

to the requirements of the Act, and Ficquette believing they were exempt. 

In October 2011, Department management adopted Ficquette’s opinion as 

the official Department policy. That is, management determined that the 

Department would not apply the verification requirements of the Beason-Hammon 

Act to foster home approvals and church day-care exemptions. Plaintiff responded 

to the decision by sending an email to twenty people, including Ficquette and other 

high-ranking Department employees, expressing his disagreement with Ficquette’s 

interpretation of the Act and its implications for the Department. Plaintiff 

acknowleged in the email that a decision had been made to adopt Ficquette’s 

position on the matter, but noted that he continued to “personally be of the opinion 

that foster homes and church exemptions are types of official permission and 

therefore licenses” subject to the requirements of the Act. 

Ficquette advised Plaintiff in a November 7, 2011 memorandum of 

instruction that she thought his email was inappropriate. In the memorandum, 

Ficquette admonished Plaintiff that he should have expressed his disagreement as 

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to the interpretation of the Beason-Hammon Act in a confidential statement rather 

than in an email distributed to high-ranking Department officials. She reminded 

Plaintiff that the legal department does not set policy, but rather provides legal 

opinions to Department management for its consideration. She stated that 

Plaintiff’s provision of divergent legal advice as to the interpretation of the Act 

created confusion within the Department, and that he had been disruptive and 

insubordinate. 

Plaintiff responded to the November 7 memorandum of instruction with a 

notice of grievance and a memorandum defending his actions. In his response, 

Plaintiff demanded that the November 7 memorandum be withdrawn and 

destroyed, and he formally requested a grievance proceeding under the 

Department’s personnel rules. After reviewing the response and meeting with 

Plaintiff, Ficquette advised him that she believed the November 7 memorandum of 

instruction was proper and that the matter was not grievable because it did not 

involve a formal disciplinary action. 

D. The Default Judgment

Also in late 2011, while the Beason-Hammon Act dispute was ongoing, 

Ficquette learned that Plaintiff was responsible for a default judgment that had 

been entered against the Department and Commissioner Buckner in a pending 

lawsuit. Plaintiff was assigned to handle the suit on August 9, 2011, the date the 

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Department was served with the complaint. However, he did not file a responsive 

pleading or take any other action to defend the Department and Buckner, resulting 

in the entry of a default judgment against them on October 27, 2011. 

Ficquette learned about the default judgment on November 2, 2011. She

discussed the issue with Plaintiff a few days later and instructed him to file a 

motion to set aside the default. Plaintiff filed the motion, which ultimately was 

granted. In his discussion with Ficquette, Plaintiff explained that he had failed to 

file a responsive pleading because he had confused the suit with another case 

involving the same plaintiff. Ficquette says she did not believe this was a 

justifiable explanation. She reprimanded Plaintiff on December 13, 2011 in 

connection with the default judgment. 

Plaintiff responded to the December 13 reprimand by filing a state personnel

complaint against Ficquette. In the complaint, Plaintiff alleged that Ficquette had

(1) illegally accused him of insubordination in connection with the BeasonHammon Act dispute and (2) discriminated and retaliated against him by 

reprimanding him in connection with the default judgment.4

 The state personnel 

board dismissed the complaint for lack of jurisdiction. 

 

4

 Plaintiff later amended his personnel complaint to allege that Ficquette had retaliated against 

him for participating in the Rawls lawsuit. 

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E. Plaintiff’s Participation in the Rawls Case 

1. Rawls’s Deposition

Around the same time Plaintiff was dealing with the Beason-Hammon Act 

dispute and the default judgment issue, discovery began in the race discrimination 

suit Rawls had filed against the Department. Retained counsel for the Department 

deposed Rawls on December 18, 2011. 

Rawls testified at her deposition that Plaintiff had told her he had 

“confidential information” that would help her prove Ficquette and Buckner had 

discriminated against her. According to Rawls, Plaintiff had also commented more 

generally that he did not believe Rawls had been treated fairly. Rawls said that 

Plaintiff had not provided specific names or given her any of the information he 

referenced, but he had implied he would disclose it at the appropriate time. 

2. Plaintiff’s First Deposition in Rawls

Based on Rawls’s testimony, the Department’s counsel subpoenaed Plaintiff 

to give a deposition in the Rawls suit on January 10, 2012. Plaintiff appeared at 

the deposition and gave extensive testimony against the Department. For example, 

Plaintiff testified that the reprimands he and Rawls received in 2009 in connection 

with the OCHC unpaid-invoice dispute were racially motivated. He explained how 

certain documents, including criminal history records he had brought to the 

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deposition, verified this allegation. And he stated, more pointedly, that he believed

Ficquette had intentionally discriminated against him and Rawls. 

3. Plaintiff’s Production of RAP Sheets

Plaintiff brought eight boxes of Department documents he had gathered 

from his office to his first deposition in the Rawls case. The deposition was held 

open by agreement of the parties so that the Department’s attorney could review 

the documents. During his review, counsel discovered that the documents included 

unredacted Reports of Arrest and Prosecution (“RAP”) sheets that had been

collected by OCHC pursuant to the background-check law and that contained 

social security numbers and other confidential information. The attorney returned 

the RAP sheets to the Department. 

Sometime in January 2012, Ficquette received the RAP sheets and learned 

that Plaintiff had produced them at his deposition. Ficquette was concerned that

Plaintiff had produced RAP sheets without advising deposing counsel of their 

confidential nature. Presumably based on her review of Plaintiff’s deposition 

testimony, Ficquette also learned that Plaintiff had stored the RAP sheets for years 

in unlocked storage in his Department office. According to Ficquette, Plaintiff’s 

maintenance of the RAP sheets in this manner violated federal and state law, as 

well as Department policy. Ficquette told Commissioner Buckner that Plaintiff 

had stored the RAP sheets in his office and produced them at his deposition 

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without advising the deposing attorney that they were confidential. Buckner says 

she agreed with Ficquette that Plaintiff’s failure to secure the RAP sheets and 

maintain their confidentiality violated Department policy. 

There is a dispute between the parties about whether Plaintiff’s manner of 

storing RAP sheets violated any law or policy. Alabama law required RAP sheets 

to be kept confidential, but did not impose any other specific security 

requirements. See Ala. Code § 38-13-8. Tommy Crabtree implemented 

procedures designed to ensure the confidentiality of RAP sheets in October 2009, 

including that they be maintained in a “secure, locked file” and that they not be 

“combined or otherwise mingled” with other records. But these procedures were 

not in place when Plaintiff was responsible for collecting the RAP sheets he 

produced in his deposition in the Rawls case. Defendants have not cited any other 

policy or law that expressly required RAP sheets to be kept in locked storage, 

although Ficquette asked for research on the issue in February 2012. Nevertheless, 

Plaintiff’s disclosure of RAP sheets at his deposition without making any effort to 

maintain their confidentiality violated Alabama law. See id. (a), (c). 

4. Plaintiff’s Use Of A Juvenile Pleading

Around the same time she discovered Plaintiff had produced RAP sheets in 

the Rawls litigation, Ficquette became aware that Plaintiff had also submitted a 

juvenile pleading as an exhibit in support of his state personnel complaint against 

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Ficquette. Ficquette claims it was improper for Plaintiff to use the pleading in this 

manner and that it caused disruption in the office because Plaintiff had 

impermissibly accessed the work folders of another Department attorney to obtain 

the pleading. She advised Buckner about this issue. 

5. Plaintiff’s February 2012 EEOC Charge

On February 6, 2012, a few weeks after his first deposition in Rawls, 

Plaintiff filed an EEOC charge alleging race discrimination and retaliation. 

Plaintiff claimed in the charge that Defendants had reprimanded him on December 

13 in retaliation for complaining about race discrimination against himself and 

Rawls and to silence him in his upcoming deposition in Rawls. 

6. Plaintiff’s Second Deposition in Rawls

The Department’s attorney reconvened and concluded Plaintiff’s deposition 

on February 16, 2012. At his second deposition, Plaintiff provided additional 

testimony and documents that supported Rawls’s claims. He also testified that he 

believed he had been retaliated against and questioned in a threatening manner 

during his first deposition in order to intimidate him and chill his testimony in 

Rawls. 

F. Buckner’s Investigation

Commissioner Buckner says she developed questions about Plaintiff’s 

conduct in early 2012 as a result of the reports she had received from Ficquette 

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concerning Plaintiff’s production of RAP sheets and misuse of a juvenile pleading, 

as well as the manner in which he had conducted Rawls’s 2009 appraisal. Buckner 

gained access to Plaintiff’s Department email account and personally reviewed the 

content of some of his emails. During her review, Buckner found a message to an 

individual at a state technical college, sent from Plaintiff’s Department account and 

signed with his professional Deputy AG title, inquiring about having burglar bars 

installed at Plaintiff’s home. 

Buckner claims she widened her investigation because she thought the 

burglar bar email was improper for several reasons, including that it was not job 

related. She directed a search of Plaintiff’s Department computer using the terms 

“state personnel board,” “Carolyn Rawls,” “retaliation,” “racial discrimination,” 

and “Ficquette.” Through her expanded search, Buckner discovered that Plaintiff 

had used his Department computer to prepare pleadings in his personnel complaint 

against Ficquette. Plaintiff acknowledges that he used his Department computer 

and other Department resources to prepare documents in support of his personnel 

complaint, and that he worked on the complaint during regular work hours and

while in his Department office. 

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G. Plaintiff’s Termination 

1. The Charge Letter

On March 9, 2012, Buckner advised Plaintiff that she was seeking his 

termination on numerous charges, including: 

(1) failing to properly maintain and secure RAP sheets that contained 

confidential information and producing RAP sheets at his deposition 

in the Rawls case without advising the Department’s private attorney 

that the records needed to be secured and kept confidential;

(2) breaching confidentiality rules by filing a sealed juvenile pleading in 

an unrelated public proceeding and failing to seek protection for the 

document by submitting it under the protective order in the case;

(3) using his office for personal gain by sending an email from his 

Department computer with his professional Deputy AG signature

requesting installation of burglar bars at his home;

(4) falsifying Rawls’s February 2009 appraisal by failing to note that 

Rawls had received a written reprimand on February 11, 2009, failing 

to have the appraisal signed by Ficquette, and failing to submit the

appraisal to the Department’s personnel office; and

(5) using his state computer and other Department materials for matters 

unrelated to his work duties at the Department, including preparation 

of documents in support of his personnel complaint against Ficquette.

 

Buckner’s charge letter quoted extensively from Plaintiff’s first deposition in 

Rawls in support of the above allegations. 

2. Plaintiff’s March 2012 EEOC Charge

A few weeks after he received the above letter, Plaintiff filed another EEOC 

charge, dated March 28, 2012. In this charge, Plaintiff alleged that his proposed 

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termination was racially motivated and that Defendants also were retaliating 

against him for opposing discrimination against Rawls and for participating in her 

race discrimination case. 

3. Plaintiff’s Termination Hearing

Plaintiff’s termination hearing was held on April 4, 2012. Although he was 

advised of his right to offer argument and evidence in his defense, Plaintiff chose 

not to attend. Pursuant to Department policy, the hearing was conducted by an 

impartial hearing officer, Mark Williams. Thereafter, the hearing officer issued a 

written decision in which he recommended Plaintiff’s termination on multiple 

grounds. 

First, the hearing officer found that Plaintiff’s termination was warranted 

because he had falsified records. This finding was based on Plaintiff’s failure to 

(1) impose the seven-point deduction on Rawls’s 2009 appraisal, (2) obtain 

Ficquette’s signature on the appraisal, and (3) submit the appraisal to the 

Department’s personnel office. The hearing officer found that the deduction was 

required by Department policy and that Plaintiff, as Rawls’s rating supervisor, was 

responsible for ensuring that it was applied. The officer concluded that Plaintiff’s 

failure to apply the deduction, and his subsequent failure to process the evaluation 

through the proper channels, was deceptive and constituted a falsification of 

records that justified termination under the state personnel rules. 

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Second, the hearing officer found that Plaintiff’s termination was warranted 

because of his unauthorized use of his Department computer. The officer noted

that Plaintiff had used the computer for personal reasons numerous times, 

including one time when he sent an email under his professional signature to 

inquire about getting burglar bars installed at his home and many other times when 

he used the computer to prepare documents related to his personnel complaint 

against Ficquette. He determined that Plaintiff’s repeated use of his Department 

computer for personal reasons violated Department policy and justified termination 

under the state personnel rules. 

Third, the hearing officer found that Plaintiff’s termination was warranted

because of his improper handling and disclosure of RAP sheets. The officer

credited evidence presented at the hearing that Plaintiff had supervisory authority 

over the proper maintenance of RAP sheets, and that RAP sheets were required by 

Department policy to be “kept in a locked file cabinet behind a locked door.” He

concluded that Plaintiff had committed a serious violation of personnel rules by 

failing to keep these documents in a properly secured location and by producing 

them in the Rawls litigation without any effort to maintain their confidentiality. 

Finally, the hearing officer concluded that Plaintiff had “exhibited serious 

mistakes in judgment that disrupted the workplace” at the Department. As one 

example of Plaintiff’s bad judgment, the officer stated that Plaintiff had “chose[n]

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to depart from his role as a key, senior level attorney for [A]DHR and actually 

opposed [A]DHR’s position in sworn testimony and in the transmittal of 

documents.” According to the officer, the “net effect” of Plaintiff’s conduct was 

disruptive to the workplace and warranted Plaintiff’s termination. 

4. Plaintiff’s Termination 

Commissioner Buckner informed Plaintiff in a letter dated April 20, 2012

that the hearing officer had recommended his termination. Buckner attached a 

copy of the officer’s recommendation and stated that she agreed with it. Buckner 

did not specify a particular ground upon which she was relying to support 

Plaintiff’s termination, but she did not reject any of the stated grounds. Buckner 

subsequently testified in this litigation that she agreed with the hearing officer’s 

analysis and with his recommendation that each of the cited grounds warranted 

Plaintiff’s termination, and that “collectively they presented an overwhelming case 

for termination.” 

5. Plaintiff’s Replacement

After Plaintiff’s termination, Commissioner Buckner requested that the 

Attorney General appoint Felicia Brooks to serve as the Deputy AG for the 

Department. Brooks is a black female. She was appointed to the Deputy AG 

position pursuant to Buckner’s request. 

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6. Plaintiff’s Retirement Benefits

In response to his charge letter and prior to his termination hearing, Plaintiff 

advised Buckner that he had applied for retirement effective May 1, 2012. He 

requested that (1) the April 4th termination hearing be cancelled, (2) he be allowed 

to remain on paid leave until his retirement, and (3) his personnel file indicate that 

he was eligible for reemployment. Commissioner Buckner denied Plaintiff’s

request. Although Plaintiff has received retirement benefits since his retirement in 

May 2012, Buckner’s denial of his request to retire in lieu of dismissal resulted in 

his loss of $26,553.45 in sick leave benefits.5

 

7. Plaintiff’s April 2012 EEOC Charge

After his termination, Plaintiff filed another EEOC charge dated April 27, 

2012. In this charge, Plaintiff alleged that his termination was racially 

discriminatory and retaliatory and that the conversion of his retirement into a 

termination resulted in his loss of approximately $25,000 in sick leave benefits. 

II. Procedural History

Plaintiff subsequently initiated this lawsuit, asserting race discrimination and 

retaliation claims against the Department under Title VII, race discrimination and 

retaliation claims against Buckner and Ficquette individually under §§ 1981 and 

1983, and an Alabama state law claim against Buckner and Ficquette, individually 

 

5

 Department employees are paid fifty percent of their accumulated sick leave when they retire. 

Employees who are dismissed are ineligible for that payment. 

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and in their official capacities.

6 In support of his claims, Plaintiff alleged he was 

reprimanded, disciplined, denied benefits, and ultimately terminated because of his 

race and in retaliation for (1) opposing discrimination against Rawls and 

participating in the Rawls litigation and (2) briefing a state personnel complaint 

against Ficquette. 

Plaintiff moved for partial summary judgment on his Alabama state law 

claim against Buckner. Defendants moved for summary judgment on all of 

Plaintiff’s claims. The case was referred to a magistrate judge, who issued a report 

and recommendation (“R&R”) recommending that Plaintiff’s motion be denied 

and that Defendants’ motion be granted in full. 

Specifically, the magistrate judge concluded that Plaintiff could not recover 

on his Alabama state law claim because he was not a classified state employee

when he was terminated. Alternatively, the magistrate judge concluded that 

Plaintiff had not engaged in protected conduct as defined under Alabama law. 

As to Plaintiff’s federal race discrimination claim, the magistrate judge 

found no evidence from which a jury reasonably could infer a racially 

 

6

 Plaintiff also asserted a First Amendment retaliation claim against Buckner and Ficquette. The 

magistrate judge concluded that Plaintiff’s First Amendment claims failed as a matter of law 

under a Pickering analysis, and that Buckner and Ficquette were entitled to qualified immunity 

on the claims. The district court agreed that qualified immunity precluded relief on the First 

Amendment claims. Plaintiff does not appeal that ruling. 

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discriminatory motive for Plaintiff’s termination.

7

 Assuming without deciding that 

Plaintiff had nevertheless established a prima facie case of discrimination, the

magistrate judge found that Plaintiff had failed to present any evidence to rebut the 

Department’s explanation that Plaintiff was terminated not because of his race but 

because he violated work rules, particularly rules requiring that RAP sheets be 

treated as confidential information. According to the magistrate judge, Plaintiff’s 

conduct with regard to the RAP sheets indisputably was a terminable offense. 

Addressing Plaintiff’s retaliation claim, the magistrate judge rejected 

Plaintiff’s argument that he had produced direct evidence of retaliation and applied 

the McDonnell Douglas burden-shifting framework. The magistrate judge 

assumed without deciding that Plaintiff had raised a prima facie case of retaliation. 

Nevertheless, the magistrate judge determined that it was undisputed that the 

Department had terminated Plaintiff for non-retaliatory reasons, including (1) his 

failure to properly maintain the RAP sheets in accordance with Department policy 

and Alabama law and (2) disloyalty to the Department that was inconsistent with 

Plaintiff’s continued legal representation of the agency. As such, the magistrate 

judge concluded that Plaintiff could not prevail on his retaliation claim. 

 

7

 The magistrate judge concluded that Plaintiff had abandoned his race discrimination and 

retaliation claims to the extent those claims relied on any adverse action other than his 

termination. The district court agreed with that conclusion. Plaintiff does not raise it as an issue 

on appeal. 

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The district court adopted the magistrate judge’s R&R recommending 

summary judgment as to all claims, except that the court did not agree that 

summary judgment should be granted on the state law claim. The district court 

agreed with the magistrate judge’s reasoning as to the race discrimination and 

retaliation claims, and granted summary judgment to Defendants on those claims. 

Having granted judgment on all of Plaintiff’s federal claims, the district court 

determined it should decline to exercise jurisdiction over the remaining state claim. 

The court thus dismissed the state claim without prejudice to permit its refiling in 

state court. 

DISCUSSION

I. Standard of Review

We review the district court’s summary judgment ruling de novo, construing 

the evidence in the light most favorable to Plaintiff and drawing all reasonable 

inferences in his favor. Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 

1318 (11th Cir. 2012). We apply the same standard as the district court. Id. 

Summary judgment is only appropriate if there are no genuine issues of material 

fact and Defendants are “entitled to judgment as a matter of law.” Id. (quoting 

Fed. R. Civ. P. 56(a)) (internal quotation marks omitted). 

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II. Plaintiff’s Retaliation Claim

Title VII prohibits an employer from retaliating against an employee 

because he “has opposed any practice made an unlawful employment practice” by 

Title VII or because he “has made a charge, testified, assisted, or participated in 

any manner in an investigation, proceeding, or hearing” under Title VII.8

 42 

U.S.C. § 2000e-3(a). To prevail on a Title VII retaliation claim, an employee must 

prove that (1) he engaged in conduct protected by the retaliation provision, (2) he 

suffered a materially adverse employment action, and (3) there was a causal 

relationship between the two. See Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 

1249, 1258 (11th Cir. 2012). The relationship required by the third prong is “butfor” causation. Univ. of Texas SW Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 

(2013). That is, the employee must show that he would not have suffered the 

adverse action if he had not engaged in the protected conduct. Id. at 2533. 

Testifying in a Title VII proceeding constitutes participation protected 

against retaliation under 42 U.S.C. § 2000e-3(a). Plaintiff thus engaged in 

protected conduct when he testified in the Rawls case in January and February of

 

8

 Title VII and § 1981 “have the same requirements of proof and use the same analytical 

framework.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). See also 

Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1277 (11th Cir. 2008) (noting that a 

retaliation claim has the same elements whether it arises under Title VII or § 1981). Thus, we 

analyze Plaintiff’s Title VII claim with the understanding that our analysis applies to his § 1981 

claim as well. 

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2012.9 See Merritt v. Dillard Paper Co., 120 F.3d 1181, 1186 (11th Cir. 1997) 

(“Under the plain language of the [participation clause], those who testify or 

otherwise participate in a Title VII proceeding are protected from retaliation for 

having done so.”). Plaintiff suffered a materially adverse action when his 

employment was terminated in April 2012, a few months after his second 

deposition in Rawls. The determinative question for this appeal is whether 

Plaintiff has presented evidence sufficient to allow a jury to determine that his 

testimony in Rawls was a “but-for” cause of his termination. See Nassar, 133 S. 

Ct. at 2534. We hold that he has produced sufficient evidence to withstand 

Defendants’ motion for summary judgment.

A plaintiff may rely on direct or circumstantial evidence to show that an 

adverse action was retaliatory. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 

1085 (11th Cir. 2004). Direct evidence is “evidence, which if believed, proves” 

retaliation “without inference or presumption.” Merritt, 120 F.3d at 1189 

(quotation marks omitted). For example, we have characterized the following 

statement as direct evidence of retaliation: “[Y]our deposition was the most 

damning to [the company’s] case, and you no longer have a place here at [the 

 

9

 Plaintiff also arguably engaged in conduct protected by the opposition clause during the 

deposition and at various other times during his employment. We limit our discussion to his 

conduct under the participation clause because its protection is more expansive than that of the 

opposition clause. See E.E.O.C. v. Total Sys. Servs. Inc., 221 F.3d 1171, 1175–1176 (11th Cir. 

2000) (discussing the “two different levels of protection” offered by the participation and 

opposition clauses). 

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company].” Id. at 1190. Summary judgment is not appropriate if the plaintiff has 

presented direct evidence. Id. at 1189. 

When a plaintiff relies only on circumstantial evidence, we generally apply 

the McDonnell Douglas burden-shifting framework to determine whether his claim 

should survive a motion for summary judgment. See Brown v. Ala. Dep=t of 

Transp., 597 F.3d 1160, 1181 (11th Cir. 2010). Under that framework, the 

plaintiff must first establish a prima facie case that an adverse action was 

retaliatory. Id. The burden then shifts back to the employer to articulate a 

legitimate, non-retaliatory reason for the adverse action, which the plaintiff has an 

opportunity to rebut with evidence of pretext. Id. at 1181–1182. Although we 

often find it to be useful, we have recognized that the McDonnell Douglas 

framework “is not the exclusive means” of prevailing on a Title VII claim based on 

circumstantial evidence. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 n.3

(11th Cir. 2005). A plaintiff’s claim will also survive summary judgment if he 

otherwise presents “enough circumstantial evidence to raise a reasonable 

inference” that an adverse action was taken against him in violation of Title VII. 

Hamilton, 680 F.3d at 1320. 

The evidence in this case is sufficient to at least raise the inference. 

Commissioner Buckner began the investigation that led to Plaintiff’s termination 

within a month of Plaintiff’s first deposition in Rawls, and just prior to his second 

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deposition. During the investigation, Buckner searched Plaintiff’s Department 

computer using the search terms “Carolyn Rawls,” “Retaliation,” “Racial 

Discrimination,” and “Ficquette.” A reasonable jury could infer from the timing 

and the focus of the investigation that it was prompted by Plaintiff’s testimony that 

Ficquette had discriminated against Rawls, and not just by the discovery of facts 

during Plaintiff’s deposition suggesting that he had engaged in other misconduct, 

such as improperly storing and producing RAP sheets or failing to follow protocol 

with respect to Rawls’s 2009 appraisal. 

A few weeks after Plaintiff’s second deposition in Rawls, Buckner sent him

a charge letter advising him that she was seeking his termination. The hearing 

officer subsequently held a hearing and issued a written decision recommending 

Plaintiff’s termination on multiple grounds, including “disruptive conduct” in the 

workplace. As an example of disruptive conduct, the hearing officer stated that 

Plaintiff had “actually opposed [A]DHR’s position in sworn testimony.” In several 

other statements made in support of the disruptive conduct ground, the hearing 

officer suggested10 that Plaintiff acted improperly by assisting Rawls in her race 

discrimination case and opposing the Department in litigation. This officer was 

not the decision-maker. That role fell to Commissioner Buckner, but she accepted 

 

10 The parties dispute whether the hearing officer’s statements constitute direct evidence of 

retaliation. We do not need to resolve the dispute to decide this appeal. Regardless of how it is 

characterized, the evidence is sufficient to raise a triable issue of fact as to whether Plaintiff’s 

testimony in Rawls was a but-for cause of his termination. 

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the hearing officer’s recommendation in full and without modification. She also 

testified in this litigation that she believed Plaintiff had been disloyal by “get[ting] 

involved” in Rawls’s case against the Department. Based on all of this evidence, a

jury reasonably could infer that Plaintiff would not have been terminated but for 

his deposition testimony in Rawls. 

In fact, the magistrate judge seemed to accept that Plaintiff was fired, in part, 

because of his participation in Rawls. He nevertheless recommended granting 

summary judgment on Plaintiff’s retaliation claim, suggesting that Plaintiff’s 

position as a Department attorney, and his corresponding duty of loyalty, rendered 

his participation in Rawls a terminable offense. There is no authority to support 

such a limitation on the scope of Title VII’s retaliation provision under the facts of 

this case. Plaintiff did not represent the Department in the Rawls matter. His 

testimony during a deposition in that litigation, as a fact witness and pursuant to a 

subpoena, falls within the plain language of the participation clause and, under our 

controlling precedent, was not a proper ground for his termination. See Merritt, 

120 F.3d at 1189. 

The magistrate judge also indicated that summary judgment was warranted 

by evidence showing Plaintiff was terminated for legitimate reasons, particularly 

his improper maintenance and disclosure of RAP sheets. We agree with the 

magistrate judge that the Department can legitimately fire an employee for various 

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types of workplace misconduct, including improper maintenance of RAP sheets, 

insubordination as reflected by the employee’s handling of the appraisal of an 

employee under his supervision, and unauthorized use of the employee’s 

Department computer for personal matters. But we do not find the record evidence 

here sufficient to establish, as a matter of law, that Defendants did fire Plaintiff for 

these legitimate reasons. As discussed, there is conflicting evidence as to whether 

Plaintiff violated any law or policy in his manner of storing RAP sheets. 

Moreover, there is evidence suggesting that Plaintiff’s termination was at least 

partially motivated by his protected deposition testimony in Rawls. Accordingly, it 

is for the jury to decide whether, notwithstanding the RAP sheet issue and other 

alleged misconduct, Plaintiff’s testimony in Rawls was the “but-for” cause of his 

termination.

III. Plaintiff’s Race Discrimination Claims

Title VII prohibits employment discrimination on the basis of race, color, 

religion, sex, or national origin. 42 U.S.C. § 2000e–2(a)(1). Like retaliation, 

discrimination in violation of Title VII may be proven either by direct or 

circumstantial evidence. Crawford v. Carroll, 529 F.3d 961, 975-976 (11th Cir. 

2008). Again, when a claim is based on circumstantial evidence, we generally 

apply the burden-shifting McDonnell Douglas framework. See Vessels, 408 F.3d 

at 767. But we recognize that a plaintiff’s claim will survive summary judgment if 

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he otherwise presents “enough circumstantial evidence to raise a reasonable 

inference of intentional discrimination.” Hamilton, 680 F.3d at 1320. 

Plaintiff relied only on circumstantial evidence to support his race 

discrimination claim, and the magistrate judge analyzed the claim under the 

McDonnell Douglas framework. Assuming Plaintiff had established a prima facie 

case, the magistrate judge concluded his race discrimination claim could not 

survive summary judgment because the evidence conclusively showed that 

Defendants had fired Plaintiff for a legitimate, non-discriminatory reason and 

Plaintiff failed to present any evidence of pretext. Finding no evidence from which 

a jury reasonably could conclude that Plaintiff’s termination was racially 

motivated, the magistrate judge recommended granting summary judgment on the 

claim. 

Plaintiff designated his race discrimination claim as an issue for appeal, but 

he did not cite any evidence or authorities in support of the claim in his appellate 

brief. Instead, he merely stated that he had “presented ample circumstantial 

evidence of discrimination” below. This conclusory statement was insufficient to 

preserve Plaintiff’s race discrimination claim for appeal. See Sapuppo v. Allstate 

Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have long held that an 

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.”);

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Hamilton, 680 F.3d at 1319 (“A passing reference to an issue in a brief is not 

enough, and the failure to make arguments and cite authorities in support of an 

issue waives it.”). Plaintiff has abandoned his race discrimination claim by failing 

to cite any evidence or authority in support of it. 

In any event, we agree with the magistrate judge’s conclusion that 

Defendants are entitled to summary judgment on Plaintiff’s race discrimination 

claim. Applying the McDonnell Douglas framework, a plaintiff may establish a 

prima facie case of race discrimination with evidence that (1) he belongs to a 

protected class, (2) he was subjected to an adverse employment action, (3) his

employer treated similarly situated employees outside of his classification more 

favorably, and (4) he was qualified to do the job. See Wilson, 376 F.3d at 1091. 

Plaintiff’s protected class is his race, and the adverse action at issue is his 

termination. Plaintiff does not cite evidence in his appellate brief to suggest that he 

was treated less favorably than any employee of a different race with respect to his 

termination.11 And it is undisputed that, after being terminated, Plaintiff was 

replaced in the Deputy AG position by a black female, pursuant to Buckner’s 

request. 

Even assuming, as did the magistrate judge, that Plaintiff could establish a 

prima facie case, he has not presented any evidence that the reasons asserted for his 

 

11 The white employees referred to in Plaintiff’s summary judgment brief below were not 

similarly situated to him either in their job duties or in their alleged misconduct. 

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termination were a pretext for race discrimination. As discussed, there is evidence 

from which a jury could infer that Plaintiff was terminated in retaliation for his 

deposition testimony in Rawls, and not because of his multiple acts of misconduct. 

There is, however, no evidence to suggest that Plaintiff’s termination was racially 

motivated. Accordingly, Defendants are entitled to summary judgment on 

Plaintiff’s federal race discrimination claim. 

IV. Plaintiff’s State ASEPA Claim

After granting summary judgment on all of Plaintiff’s federal claims, the 

district court declined to exercise jurisdiction over Plaintiff’s remaining state law 

claim. Given our decision reversing and remanding Plaintiff’s federal retaliation 

claim, we also remand the state law claim because the district court’s reason for 

declining jurisdiction over the claim is no longer valid. 

CONCLUSION

For the reasons discussed above, we AFFIRM the district court’s order 

granting summary judgment to Defendants on Plaintiff’s race discrimination claim 

under Title VII and § 1981. We REVERSE the district court’s order granting 

summary judgment to Defendants on Plaintiff’s retaliation claim under Title VII 

and § 1981 and REMAND that claim for proceedings consistent with this opinion. 

We also REMAND Plaintiff’s state law claim. 

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