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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-11604
Non-Argument Calendar
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D.C. Docket No. 6:15-cv-00096-JA-TBS
JOSEPH FETCHICK, III,
Plaintiff-Appellant,
versus
SEMINOLE COUNTY,
a political subdivision of the state of Florida,
Defendant,
DENNIS M. LEMMA,
as Sheriff of Seminole County, Florida,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 10, 2018)
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Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Joseph Fetchick, III, appeals the district court’s grant of summary judgment
in favor of Dennis M. Lemma, the Sheriff of Seminole County (“the Sheriff”), in
his employment discrimination lawsuit alleging violation of his First Amendment
right to freedom of association, filed pursuant to 42 U.S.C. § 1983. On appeal,
Fetchick argues that the district court erred because it failed to properly consider
evidence he presented opposing summary judgment showing that the Sheriff
violated his right to freedom of intimate association, and in concluding that he
violated policies of the Seminole County Sheriff’s Office (“the Sheriff’s Office”).
In support, Fetchick highlights several pieces of evidence that he argues support
his contention that the Sheriff fired him for engaging in an intimate relationship.
We review de novo a district court’s grant of summary judgment, viewing
the evidence in the light most favorable to the non-moving party. Quigg v.
Thomas Cnty. Sch. Dist.,
814 F.3d 1227, 1235 (11th Cir. 2016). The non-moving
party must respond with specific factual evidence, not mere allegations. Gargiulo
v. G.M. Sales, Inc.,
131 F.3d 995, 999 (11th Cir. 1997). If the non-moving party
does not respond, then summary judgment may be granted “if the motion and
supporting materials—including the facts considered undisputed—show that the
movant is entitled to it.” Fed. R. Civ. P. 56(e)(3). Summary judgment is properly
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granted only if “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). A genuine issue
of material fact exists when “the evidence is such that a reasonable jury could
return a verdict for the non-moving party.”
Quigg, 814 F.3d at 1235 (quotations
and alteration omitted).
Section 1983 provides a private cause of action against any person who,
acting under color of state law, abridges rights created by the Constitution and laws
of the United States. See 42 U.S.C. § 1983. The First Amendment, in turn,
protects a public employee’s right to intimate association. See McCabe v. Sharrett,
12 F.3d 1558, 1562–63 (11th Cir. 1994). The right to intimate association protects
an individual’s “freedom to choose to enter into and maintain certain intimate
human relationships,” including “the personal relationships that attend the creation
and sustenance of a family—marriage, childbirth, the raising and education of
children, and cohabitation with one's relatives.”
Id. at 1563.
We analyze claims that a public employer violated an employee’s right to
intimate association under the test set forth by the Supreme Court in Mt. Healthy
City School Dist. Bd. of Ed. v. Doyle,
429 U.S. 274 (1977);
McCabe, 12 F.3d at
1562; see also Smith v. Price,
616 F.2d 1371, 1376 (5th Cir. 1980). Under that
test, the employee first must show that the act for which he alleged he was fired
was constitutionally protected, and that it was a “substantial” or “motivating”
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factor in the decision to discharge him. Nicholson v. Gant,
816 F.2d 591, 599
(11th Cir. 1987). Once this is shown the burden shifts to the public official or
entity to show by a preponderance of the evidence that the employee would have
been dismissed in the absence of the protected act.
Id. (citing Mt. Healthy, 429
U.S. at 287).
The district court did not err in granting summary judgment because,
assuming arguendo that Fetchick’s romantic relationship was constitutionally
protected, the record does not show that his relationship was a substantial or
motivating factor in the Sheriff’s decision to terminate him. See
McCabe, 12 F.3d
at 1562;
Smith, 616 F.2d at 1376. Instead, undisputed evidence supports that the
Sheriff fired Fetchick for six policy violations, many of which involved underlying
conduct to which Fetchick admitted, including handcuffing a student who had not
committed a crime. We conclude that no reasonable jury could find on this record
that the Sheriff fired Fetchick for engaging in an intimate relationship.
Accordingly, we affirm the district court’s grant of summary judgment.
AFFIRMED.
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