[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 18-12497

Non-Argument Calendar

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D.C. Docket No. 1:17-cv-00159-SCJ

CLARENCE COX, 

 Plaintiff - Appellant,

versus

CLAYTON COUNTY SCHOOL DISTRICT, 

 Defendant - Appellee.

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Appeal from the United States District Court

for the Northern District of Georgia

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(February 25, 2019)

Before MARCUS, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM: 

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Clarence Cox sued his former employer, the Clayton County School District,

alleging that he was fired because of his candidacy for county sheriff in violation of 

his First Amendment rights. See 42 U.S.C. § 1983. The district court granted 

summary judgment to the School District, and Mr. Cox now appeals. After 

reviewing the record and the parties’ briefs, we affirm. 

I

Under Georgia Law, the Clayton County School District makes its 

employment decisions through a governing board. At all times relevant to this 

appeal, the board consisted of nine members. Every year, the board must decide 

whether to tender a new contract for the ensuing year for each professional employee

of the school district. See O.C.G.A. § 20-2-211.

In 2013, the School District hired Mr. Cox to serve as Director of Safety and 

Security, on the recommendation of then-School Superintendent Luvenia Jackson. 

The board then voted to renew Mr. Cox’s contract several times over the following 

years. On January 26, 2016, Mr. Cox announced at a meeting of his staff that he 

intended to run for Clayton County Sherriff. On February 1, 2016, the board 

members held a meeting and reviewed pending contract renewals. They decided not 

renew Mr. Cox’s contract. 

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Mr. Cox brought a claim under 42 U.S.C. § 1983, arguing that the board’s 

decision to terminate his contract was motivated by the fact that he was running for 

sheriff, and therefore violated his right to free speech under the First and Fourteenth 

amendments. The district court granted the school district’s motion for summary 

judgment, finding that there was no evidence that any board member was motivated 

by Mr. Cox’s candidacy when voting to terminate him. 

II

We review the district court’s order granting summary judgment de novo, 

applying the same legal standards as the district court, and viewing all facts and 

reasonable inferences in the light most favorable to Mr. Cox, the non-moving party. 

See Atheists of Florida, Inc. v. City of Lakeland, 713 F.3d 577 (11th Cir. 2013). 

III

Mr. Cox first argues that the district court erred by evaluating his claim under 

the four-step analysis ordinarily applied when a government employee alleges that

his termination violated his First Amendment rights. See, e.g., Moss v. City of 

Pembroke Pines, 782 F.3d 613, 617 (11th Cir. 2015). We have long applied this

analysis in cases, like this one, “where the state denies discharging the employee 

because of speech.” Bryson v. City of Waycross, 888 F.2d 1562, 1565 (11th Cir. 

1989). See also Carter v. City of Melbourne, 731 F.3d 1161, 1168 (11th Cir. 2013). 

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First, we consider whether the plaintiff’s speech was made as a citizen, rather than 

as an employee, and whether it implicated a matter of public concern. See Moss, 782 

F.3d at 617-18. “If this threshold requirement is met, we then weigh Plaintiff’s First 

Amendment interests against the [government]’s interest in regulating his speech.” 

Id. at 618. “The[se] first two elements are questions of law designed to determine 

whether the First Amendment protects the employee’s speech.” Battle v. Bd. of 

Regents for Georgia, 468 F.3d 755, 760 (11th Cir. 2006). At the third stage, we 

consider whether the plaintiff’s speech was a substantial motivating factor in his 

dismissal. See Anderson v. Burke County, Ga., 239 F.3d 1216, 1219 (11th Cir. 2001). 

If the plaintiff succeeds in showing the first three factors, the burden shifts to the 

government to show, by a preponderance of the evidence, that it would have 

terminated the plaintiff absent the protected speech. See id.

Here, the district court concluded that Mr. Cox’s claim failed at the third stage

of the analysis, because there was no evidence that the board’s decision was 

motivated by his speech. Indeed, the court was doubtful whether any board member 

was even aware of Mr. Cox’s candidacy; eight out of the nine board members 

provided affidavits explaining that their votes were unrelated to any political

expression on the part of Mr. Cox and were instead motivated by concerns about his

job performance. 

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Mr. Cox contends that, rather than applying this four-step analysis, the district 

court should instead have looked to Randall v. Scott, 610 F.3d 701 (11th Cir. 2010). 

Randall concerned a § 1983 claim brought by an employee of a district attorney’s 

office. The plaintiff alleged that he had been terminated because he was running 

against the district attorney’s husband for chairman of the Clayton County Board of 

Commissioners. See id. at 714. Because Randall was an appeal from the grant of a 

motion to dismiss, we accepted as true the plaintiff’s allegations regarding the 

reasons why he was fired. See id. at 705. We held that candidacy is a form of 

expression entitled to some degree of First Amendment protection. See id. at 710. 

And we reversed the district court’s dismissal of the plaintiff’s claim because, 

assuming the plaintiff had indeed been fired for his candidacy, “the state ha[d] no 

interest in preventing [him] from running for office.” Id. at 714. 

This case, unlike Randall, comes to us on a motion for summary judgment. 

At the summary judgment stage, the district court was not required to accept as true 

the allegations in Mr. Cox’s complaint regarding the reason why he was terminated. 

And although Randall makes clear that Mr. Cox’s candidacy was entitled to some

degree of First Amendment protection, it does not resolve the central defect in his

claim—namely, the lack of evidence that his termination was motivated by that 

candidacy.

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Mr. Cox also urges us to rely on Underwood v. Harkins, 698 F.3d 1335 (11th 

Cir. 2012). Underwood concerned an elected superior court clerk’s decision to 

terminate a deputy clerk, who had the same statutory duties and powers as the 

superior court clerk and who had run against her in a primary election. “Our holding

. . . [wa]s that an elected official may dismiss an immediate subordinate for opposing 

her in an election without violating the First Amendment if the subordinate, under 

state or local law, has the same duties and powers as the elected official.” Id. at 1343. 

Even if we assume that Underwood is of relevance here, it does not help Mr. Cox. 

Again, he did not present any evidence allowing a jury to find that he was terminated 

because of his candidacy.

In sum, we disagree with Mr. Cox that the district court failed to properly 

analyze his claim.1

IV

Mr. Cox also argues that the district court erred by failing to view the record 

in the light most favorable to him, as it was required to do in reviewing the school 

district’s motion for summary judgment. 

 1 The district court stated in its order that Mr. Cox had to show that the board’s conduct violated a 

clearly established right in order to overcome qualified immunity. See D.E. 37 at 13. This was 

error. A local government entity like the board is not entitled to assert qualified immunity. See 

Owen v. City of Independence, 445 U.S. 622, 649-50 (1980). The error is harmless, however, 

because there is no triable issue as to whether the termination was based on Mr. Cox’s candidacy. 

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A district court “shall grant summary judgment if the movant shows that there 

is no genuine dispute as to any material fact and the movant is entitled to judgment 

as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the initial burden 

of showing that there is no genuine dispute as to any material fact, and may discharge 

this burden “by pointing out to the district court . . . that there is an absence of 

evidence to support the nonmoving party’s case.” Celotex Corp. v. Cartrett, 477 U.S. 

317, 323 (1986). The nonmoving party then has the burden of coming forward with 

specific facts showing a genuine dispute. Matsushita Elec. Indus. Co. v. Zenith Radio 

Corp., 475 U.S. 574, 587 (1986). 

Here, the school district pointed out the absence of evidence that any board 

member was aware that Mr. Cox was running for office when the board voted to 

terminate him on February 1, 2016. The school district also highlighted the 

testimony of the eight board members, who filed affidavits denying that their vote 

was motivated by Mr. Cox’s candidacy and enumerating various problems with Mr. 

Cox’s job performance. These included Mr. Cox’s general handling of department 

funds, his efforts to involve school district police officers in Atlanta-area drug

surveillance activities, complaints from school administrators about Mr. Cox’s

handling of certain security issues, and an increase in the department’s annual budget 

under his watch from about $1.5 million to about $7 million. 

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Mr. Cox came forward with two factual assertions in support of his allegation 

that the board’s decision to terminate him was motivated by his candidacy. First, he

alleged that an e-mail was sent prior to the board meeting alerting the board members 

about his candidacy. But the school district provided the district court with a copy 

of the e-mail, which showed that it was sent after—not before—the board’s decision 

to terminate Mr. Cox. Second, Mr. Cox pointed to testimony by then-Superintendent 

Luvenia Jackson that, prior to the board’s decision, chairwoman Pam Adamson 

approached Ms. Jackson and asked her if Mr. Cox planned to run for sheriff. 

According to Ms. Jackson, she answered that she did not know. The district court 

concluded from this testimony that even after speaking with Ms. Jackson, Ms. 

Adamson did not know whether Mr. Cox planned to run. The district court also 

observed that even if Ms. Adamson had known about (and her vote had been 

motivated by) Mr. Cox’s candidacy, at least seven other board members voted to 

terminate Mr. Cox despite not knowing about his candidacy. Given that the decision 

to terminate Mr. Cox required only a five-vote majority, the district court concluded 

that the board would have reached this decision irrespective of his candidacy. See 

Bryson, 888 F.2d at 1565 (explaining that the government prevails if it shows by a 

preponderance of the evidence that it would have terminated the employee absent

the employee’s protected speech).

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We find no error in the district court’s analysis. Absent any indication that 

any board member other than Ms. Adamson was even aware of Mr. Cox’s candidacy, 

Mr. Cox did not come forward with sufficient facts to show a genuine dispute as to 

the reasons for his termination.

Mr. Cox also argues that the performance problems listed in the board 

members’ affidavits are mere pretext. Although he does not dispute the veracity of 

the claims the affidavits make about his job performance, he argues that his 

complained-about conduct was relatively minor and took place long before the 

decision to terminate him. Mr. Cox also points out that then-Superintendent Jackson 

consistently gave him high performance ratings during his tenure as Director of 

Safety and Security. Therefore, Mr. Cox argues, the decision to fire him was so 

heavy-handed as to make the proffered explanations “unworthy of credence and 

belief.” Appellant’s Br. 25.

We decline to assess whether the board’s termination of Mr. Cox was a wise 

employment decision. For purposes of Mr. Cox’s § 1983 claim, it suffices to note

that even if we agreed with Mr. Cox that the board’s decision was heavy-handed 

under the circumstances, he has not come forward with sufficient facts to establish 

a genuine dispute as to whether his termination was motivated by his candidacy. 

V

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For the foregoing reasons, we affirm the district court’s order granting 

summary judgment to the Clayton County School District. 

AFFIRMED.

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