[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 17

- 11577 Non

- Argument Calendar

________________________ D.C. Docket No. 1:12

- cv - 00072

- LJA KATHLEEN STRANG,
Plaintiff

- Appellant,

versus ALBANY GEORGIA, The City of, WILLIE ADAMS, in his personal and official capacity, DOROTHY HUBBARD, in her pers onal and official capacity, CHRISTOPHER PIKE, in his personal and official capacity, ROGER MARIETTA, in his personal and official capacity, et al.,
Defendants

- Appell ees.

Case: 17-11577 Date Filed: 12/31/2018 Page: 1 of 112 ________________________ Appeal from the United States District Court for the Middle District of Georgia

________________________ (December 31, 2018) Before ED CARNES, Chief Judge, WILLIAM PRYOR , and ANDERSON , Circuit Judges.
PER CURIAM: Kathleen Strang , a former assistant city attorney in Albany, Georgia , brings a complaint under 42 U.S.C. § 1983 claiming that her First Amendment rights were violated because she was terminated in retaliation for speaking about a handgun that her supervisor kept in his offic e. The district court granted summary judgment in favor of the defendants. Strang now appeals.
I. Strang was hired as an assistant city a ttorney in 2006 by City Attorney C. Nathan Davis . Her official duties included ensuring “ departmental compliance wi th all applicable City codes, laws, rules, regulations, standards, p olicies and procedures” and “initiating any actions ne cessary to correct violations.” As part of her duty to ensure compliance wit h applicable laws and rules, Strang made several reports to Davis regarding infractions by city employees.

Case: 17-11577 Date Filed: 12/31/2018 Page: 2 of 113 In 2009 Shurell Byrd, a black city employe e and friend of Strang ’s , told
Stra ng about racism exhibited by Byrd’s immediate boss, who routinely used the

“ N ” word. 1 Strang , who is white, orally reported B yrd’s account to Davis

. Assistant City Attorney Jenise Shicole Smith, who is black , overheard Strang report to Davis “ that this guy called black people ‘ N***** s.’” 2 After wards Sm ith asked Strang not to use this word

. Strang then became “furious,” entered a paralegal’s office , and “said the word ‘N r, N** **r, N r, N** **r, N r, N** **r, N****r

. ’ ” Strang later said that she did not mean to call Smith a racial slur, but was “ridiculing” the fact that Smith approached Strang as if S trang had used a slur out of racial animus even though Smith knew the context of Strang’s report. In January 2010, the Board of City Commissioners

— composed of the mayor and six commissioners

— met with Davis to conduct an annual evaluation of his perfo rmance. During that meeting t he Board expressed concern about Davis’ supervision of Strang, noting that “certain depar tment heads” would not work with Strang due to her inappropriate behavior. The Board directed Davis to put Strang on an improvement plan and report back. Davis placed Strang on a

1 Strang referred to the “N” word during her deposition, but testified that Byrd “said the word.” 2 Strang did not pr onounce the word with asterisks; we have added them to avoid echoing the full racist force of the word.

Case: 17-11577 Date Filed: 12/31/2018 Page: 3 of 114 coaching p lan that required her to : “ (1) attend

. . . a training class focused on conflict resolution or team building within 30 days and (2) develop a written strategy within 90 days to strengthen her ability t o create a collegial atmosphere. ” Strang was informed that failure to complete the coaching p lan could result in disciplinary action, including termination. Afterwards tensions in the City Attor ney’s office continued to grow. In March 2010, St rang alleg es that Davis

— apparently concerned that Strang’s desk was too cluttered

— entered her office and swept papers containing work product off of her desk and into the trash can. Strang decided that she was “going to teach [Davis] a lesson” by “find[ing] a document and mak[ing] it disappear.” After Strang entered Davis’ office she could not bring herself to follow through with her plan, but she did open Davis’ desk drawer where she discovered a handgun. Strang became “frightened, because [she] really th ought that [Davis] had that gun there because he intended to point it at [her],” because “in [her] mind’s eye that man hated [her] guts, and he hated [her] guts so much that when [ Strang ] saw that gun there, [she] thought that that’s why it was t here.” Strang then brought Niger Thomas, the city’s equal employment opportunity
manager , to Davis’ office to see the gun because Thomas “was a personal friend and she was the EEO person. . . . We shared viewpoints about certain senior city officials and about the way things were done, they were crazy.” Strang described

Case: 17-11577 Date Filed: 12/31/2018 Page: 4 of 115 feeling like she needed to get her discovery off her chest and that telling Tho mas made the situation feel less dangerous. S he asked that Thomas keep the incident a secret to avoid retali ation. Thomas did report Davis, who was suspended without pay for three days. In April 2010, the staff of the City Attorney’s Office went to a professional development lunch. Strang did not attend. The next day Christine Washington, an administrative l egal secretary, told Strang that she was “required to attend a mandatory staff meeting” that afternoon. When Strang arrived at the meeting, Washington ordered her to apologize for embarrassing the office by reporting Davis’ gun and repeatedly told Strang that she should be fired. Smith , the Assistant City Attorney who had earlier expressed concerns about Strang’s language, also “attacked” Strang for three hours by criticizing her work, her handling of a case, and for pretendi ng to work long hours. Strang alleges that, although Davis was not present , he “authorized the staff meeting,” likely at the luncheon that Strang had missed. On May 5, 2010, Davis “ requested [Strang ’s] immediate resignation, allegedly based on office discord.” On May 6, 2010, Thomas prepared a memorandum for the mayor concerning “the workplace environment in the City Attorney’s Office” including “poor staff relations and longstanding inter

- office conflicts” and “palpable tension, mistrust and disrespect.” Five days later the

Case: 17-11577 Date Filed: 12/31/2018 Page: 5 of 116 Board of Commissioners held a closed executive session, in which commissioners criticized Strang for paying her city

- issued cellphone bill late , not getting along with her colleagues, and doing work outside of the City Attorney’s O ffice.
On May 25, 2010, Strang received a Notice of R ecommendation of Dismissal from Davis. On June 22, 2010, Strang elected to have a pre

- termination hearing befor e City Manager Alfred Lott, where she presented evidence for Lott to consider in determining whether to approve or reject Davis’ termination recommendation. Lott terminated her employment effective June 30, 2010. He determined that her behavior had created a hostile work environment, which was exacerbated by her use of racial slurs. Lott also noted ins tances in which Davis was unsatisfied with Strang’s legal work, and that St rang had not complied with her coaching p lan because she failed to complete the course on interpersonal relationships or produce the written strategy document.
O n May 10, 2012 , Stra ng filed a complaint under 42 U.S.C. § 1983 against the city, the mayor , the city commissioners, Lott, and Davis alleging that she was terminated in violation of the First Amendment in retaliation for reporting Davis’
gun . On March 15, 2016, the defendant s filed a motion for summary judgment. Strang litigated the case pro se and managed her own discovery. O n April 29, 2016, she filed a motion for discovery sanctions based on the alleged misconduct of Davis, City Commissioner Bob Langstaff , and defense counsel Donald Sweat

.

Case: 17-11577 Date Filed: 12/31/2018 Page: 6 of 117 The district court granted the defendants’ motion for summary judgment and denied Strang’s motion for discovery sanctions. Strang appeals both decisions.
II. Strang first challenges the district court’s grant of summary judg ment to the defendants. We review de novo a district court’s decision to grant summary judgment, drawing “all reasonable inferences in the light most favorable to the

non - moving party.” Owen v. I.C. Sys., Inc. , 629 F.3d 1263, 1270 (11th Cir. 2011).
Summ ary judgment may be granted only if “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247, 106 S. Ct. 2505, 2509

– 10 (1986) (quotation marks omitted). A genuine issue of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248, 106 S. Ct. at 2510. The state may not discharge a public employee in retaliation for speech protected under the First Amendment. Bryson v. City of Waycross , 888 F.2d 1562, 1565 (11th Cir. 1989). An employee makes out a prima facie case of First Amendment retaliation by establishing the following elements by a preponderance of the eviden ce: (1) the employee’s speech is on a matter of public concern; (2) the employee’s First Amendment interest in engaging in the speech outweighs the employer’s interest in prohibiting the speech to promote the efficiency of the public services it performs t hrough its employees; Case: 17-11577 Date Filed: 12/31/2018 Page: 7 of 118 and (3) the employee’s speech played a “substantial part” in the employer’s decision to demote or discharge the employee. Battle v. Bd. of Regents for Ga. , 468 F.3d at 755, 759

– 60 (11th Cir. 2006) (citation omitted)

. If a plaintiff successfully makes out a prima facie case then the burden shifts to the employer to show that it would have made the same decision even in the absence of protected conduct. Id. The district court held that Strang failed to satisfy the firs t element of her prima facie case . We agree. In or der for a plaintiff to meet this requirement the speech in question must be made by a government employee speaking as a citizen on a subject of public concern

. Boyce v. Andrew , 510 F.3d 1333, 1342

– 43 (11 th Cir. 2007)

. I f the plaintiff cannot make this showing then “ there can be no First Amendment issue, and the constitutional inquiry ends .” Id. at 1343. When speech is made pursuant to an employee’s official duties, it is not made as a private citizen
f

or First Amendment purposes. I d. at 1342

. “ Decidin g whether a government employee’ s speech relates to his or her job as opposed to a n issue of public concern must be determined by the content, form, and context of a given statement, a s revealed by the whole record.” Id. at 1343 ( quotation marks omitted). The fact that information may be of general interest to the public does not in itself make speech regarding that information a matter of public concern . Id. at 1344.
Here t he record shows that Str ang was not speaking as a citizen, but as an employee concerned about her job and her own personal safety in the workplace

.

Case: 17-11577 Date Filed: 12/31/2018 Page: 8 of 119 She spoke to Thomas, her friend and a city employee whose job is related to workplace grievances. Strang has said that she went to Thomas because she was afraid Davis might “point ” the gun at her because he “hated [Strang’s] guts.” Not only that but speaking as she did was within the scope of her official duties. Part of her job was ensuring compliance with city rules , and she had previously taken multiple actions to address infraction s by city employees. So Strang’s speech was not made as a private citizen and the district court did not err in granting summary judgment to the defendants.
III. Strang next challenges the district court’s decision to deny her motion for discovery sanctions aga inst Davis, Langstaff, and Sweat

. S he argues that the district court made clearly erroneous findings of fact because Strang provided clear evidence showing that: (1) “Davis lied repeatedly under oath throughout his deposition regarding material facts under dispute,” (2) Langstaff engaged in dilatory tactics during his deposition, and (3) Sweat “fabricated” interrogatory responses without client input. We di sagree.

“ We review a court’ s imposition of sanctions under its inherent powers for abuse of discretion. ” Eagle Hosp. Physicians, LLC v. SRG Consulting, Inc. , 561 F.3d 1298, 1303 (11th Cir. 2009) . In making this determination we ask whether

Case: 17-11577 Date Filed: 12/31/2018 Page: 9 of 1110 the district court applied the wrong legal standard or made findings of fact that are clearly erroneous. See id.
C ourts possess an inherent power to impose sanctions for litigation misconduct that derives from their need to “manage [their ] own affairs so as to achiev e the orderly and expeditious disposition of cases.” Id. at 1306 ( quotation marks omitted). This power must be “exercised with restraint and discretion.” Id. (quotation marks omitted). “ The key to unlocking a court’s inherent power is a finding of bad faith.” Id. (quotation marks omitted). Conduct demonstrating bad faith includes “delaying or disrupting the litigation,” id. , and making false statements during a deposition for a “ harassing or frivolous purpose , ” Byrne v. Nezhat , 261 F.3d 1075, 1125 (11th Cir. 2001) abrogated on other grounds by Douglas Asphalt Co. v. QORE, Inc. , 657 F.3d 1146 (11th Cir. 2011 )

. Strang attempts to demonstrate that Davis made false statements in bad faith during his deposition by pointing to evidence in the record that Strang contends

contra dicts Davis’ testimony. But she provides no evidence that Davis believed these statements to be untrue or that he made them for a harassing or frivolous purpose. Inconsistencies in a witness’ testimony alone are insufficient t o make the finding of bad faith necessary to impose sanctions. See Byrne , 261 F.3d at 1125 (“Standing alone, a false or inconsistent statement in a deposition does not compel the conclusion of bad faith.”)

.

Case: 17-11577 Date Filed: 12/31/2018 Page: 10 of 1111 Strang also points to conduct during Langstaff ’s deposition that she a lleges was abusive and dilatory. This conduct includes Langstaff questioning the authenticity of documents he was asked to review during the deposition, claiming not to recall his earlier testimony, and insisting that he be allowed t o finish answering Strang’s deposition questions when she attempted to cut short his

answers . Strang has not produced evidence that Langstaff engaged in this conduct in order to delay or disrupt the litigation. The district court was not requried to find that he acted in bad faith during his deposition. Finally Strang argues that Sweat “fabricated” interrogatory responses without client input

. As evidence of that s he points to deposition transcripts in which Davis admits to not personally preparing or dr afting responses to Strang’s interrogatories. But Strang has pointed to no authority indicating that parties are required to personally draft response s to discovery requests , nor could she. Strang has merely demonstrated that Sweat conformed with the com mon practice of drafting responses for his clients ’ approval

. The district court did not abuse its discretion in declining to impose sanctions. AFFIRMED. 3

3 Strang moves unopposed to suppleme nt her appendix and supplemental appe ndix with pages inadvertently o mitted from her original filings. We have reviewed these materials and they do not affect the outcome of this case. Strang’s motion is GRANTED.

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