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March 25, 2026 Get Citation Alerts Download PDF Add Note

Terry Joyner v. City of Atlanta

Court of Appeals for the Eleventh Circuit

• Citations: None known
• Docket Number: 22-13728

• Nature of Suit: NEW

• Opinion

• Authorities (59)

• Cited By (0)

• Summaries (0)

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Combined Opinion

USCA11 Case: 22-13728 Document: 48-1 Date Filed: 03/25/2026 Page: 1 of 63

FOR PUBLICATION

In the
United States Court of Appeals
For the Eleventh Circuit

---

No. 22-13728

---

TERRY JOYNER,
Plaintiff-Appellant,
versus

CITY OF ATLANTA,
CHIEF GEORGE TURNER,
VAN HOBBS,
in their individual capacities,
Defendants-Appellees.

---

Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:16-cv-01780-RDC

---

Before BRANCH, GRANT, and ED CARNES, Circuit Judges.
ED CARNES, Circuit Judge:
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2 Opinion of the Court 22-13728

Terry Joyner worked as a police officer with the City of At-
lanta Police Department (APD). He was denied a promotion to
Captain in December 2014, and he was moved from a flexible to a
fixed schedule in October 2015. He filed a lawsuit claiming that the
City through his former supervisors — Police Chief George
Turner, Major Earnest Finley, and Major Van Hobbs — engaged in
racial discrimination and retaliation in violation of Title VII, 42
U.S.C. § 2000e, et seq.; that Turner and Hobbs retaliated against
him in violation of the First Amendment; and that the City through
Turner and Hobbs retaliated against him in violation of the Geor-
gia Whistleblower Act, Ga. Code Ann. § 45-1-4.
Joyner lost all of his claims on summary judgment or at trial.
This is his appeal from the judgment against him. He loses it, as
well, except that we reverse the grant of summary judgment to
Turner and Hobbs on his First Amendment retaliation claim.
I. FACTS AND PROCEDURAL HISTORY
A. The Facts
Joyner was hired as a police officer with the APD in 1992.
APD officers rank in the following ascending order: Police Officer,
Senior Police Officer, Investigator, Sergeant, Lieutenant, Captain,
Major, Deputy Chief, Assistant Chief, and Chief. Joyner was pro-
moted to Investigator in 1999, Sergeant in 2001, and Lieutenant in
2007. He was not promoted again.
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22-13728 Opinion of the Court 3

Joyner worked in the APD’s Field Operations Division
(FOD), which, while he was working in it, was divided into six ge-
ographic patrol zones. Each zone was led by one Captain and one
Major.
1. In February 2008, Joyner Reported
Allegations of Racial Discrimination.
In February 2008, Joyner, who is White, was working in
Zone 3 under Major Earnest Finley, who is Black.1 On February
12, 2008, Joyner met with Finley to inform him that some White
officers had told Joyner that they believed Finley was treating them
less favorably than he was treating Black officers. Joyner testified
during his deposition that Finley was so angry when Joyner told
him that “[Joyner] felt like [Finley] was about to hit [him],” and that
Finley screamed something like, “Why are you doing this?”
Finley requested that Joyner investigate those allegations
and send any documentation directly to Finley. But Joyner under-
stood from a friend with the Office of Professional Standards
(OPS) that he needed to refer the matter to that office instead of
investigating it himself. So Joyner informed OPS of the allegations,
and at a second meeting sometime later in February he told Finley
that he was involving that office. Finley admitted in his deposition

1 The record sometimes uses racial identifiers like “White” and “Cau-

casian” interchangeably, and “Black” and “African-American” interchangea-
bly. For consistency, except when quoting the record, we will use the terms
“White” and “Black,” instead of any synonyms.
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4 Opinion of the Court 22-13728

that Joyner “did the right thing” in this situation, that the complaint
“should have been forwarded to OPS right away.”
Also present at both of Joyner’s February meetings with Fin-
ley was Lieutenant Scott Lyle, the assistant commander of Zone 3.
Joyner testified that after the second meeting, Lieutenant Lyle told
him: “[Y]ou really need to watch your back, because [Finley is]
someone that holds a grudge, and he’s going to come after you for-
ever.”
2. Between February and March 2008, Finley Changed
Joyner’s Schedule to Night Watch, but Joyner Re-
quested and Received a Transfer to a New Zone.
On or about February 20, 2008, Finley changed Joyner’s
schedule, transferring him from patrol day watch to patrol evening
watch, effective February 28.
Unhappy with that schedule change, Joyner filed an internal
grievance against Finley with Deputy Chief Peter Andresen assert-
ing that the schedule change was unlawful retaliation. Joyner tes-
tified that Andersen said his grievance was a “slam dunk” because
the schedule change never should have happened. To resolve the
grievance, Andresen allowed Joyner to transfer out of Zone 3 and
into Zone 2. That did resolve the matter. Because Joyner was
moved out of Zone 3, the schedule change Finley had ordered that
Joyner did not want never went into effect.
3. Between 2010 and 2014, Joyner’s Supervisors
Saw Problems with his Performance.
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22-13728 Opinion of the Court 5

Over the next couple of years, Joyner had some performance
problems. In 2010 he failed to appear for court when he was sub-
poenaed to testify against a suspect.
In February 2012, George Turner, the Police Chief at the
time, appointed Joyner to lead the fugitive squad. Erika Shields was
Deputy Police Chief while Joyner held that position. She testified
that Turner put Joyner in charge of that unit because “he wanted
to give Joyner an opportunity to shine.” Turner similarly testified
that he appointed Joyner to this position “because I really believed
that he was on the right track, that we needed him to show his
professionalism, his ability to accomplish a task in a very challeng-
ing assignment.”
But Joyner let them down. Joyner and Shields attended the
weekly Command Operating Briefing to Revitalize Atlanta (acro-
nym: COBRA) meetings, where Joyner gave updates on his unit’s
status and productivity. Shields testified that the fugitive squad was
underperforming under Joyner, who was often unprepared for
those meetings. Turner similarly testified that he had been “an ad-
vocate for Lieutenant Joyner,” but that he “was absolutely disap-
pointed [with him]” based on his work with the fugitive squad.
In December 2012 Joyner used his work email account to
email a man who was having an affair with Joyner’s wife. He told
the man: “I hope you’re having fun f ’ing my wife.” The APD inves-
tigated the incident and cited Joyner for sending that email from
his work email address.
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6 Opinion of the Court 22-13728

In June 2014 Joyner received a performance rating of 3.9/5,
which meant his performance was “effective,” but not either of the
two higher performance ratings: “highly effective” or “outstand-
ing.” Shields testified that “effective” was “pretty much” the lowest
evaluation that officers generally received.
Turner testified that other commanders wanted him to
move Joyner out of the fugitive squad. Because of Joyner’s perfor-
mance, in August 2014 he was transferred out of that unit and back
into Field Operations Division Zone 2.
After returning to Zone 2, Joyner did not get along with Van
Hobbs, the Major in charge of it. Without being asked, Joyner in-
formed Hobbs that he was not going to run Hobbs’s criminal in-
vestigation division unit for him because he had already served as
the unit’s commander in that Zone twice. Hobbs did not like that;
he thought it was arrogant of Lieutenant Joyner to tell a Major
what to do with his Zone.
Hobbs testified at trial that while serving as a Lieutenant in
Zone 2, Joyner made some decisions that caused “issues.” Specifi-
cally, Zone 2 was large (40 square miles), and it was divided into
two geographic “sectors.” Officers were assigned to patrol only
one sector. Joyner flipped those assignments; he “transitioned all
the A sector officers into B sector and all the B sector officers into
A sector.” Because the officers were less familiar with their new
areas within the large Zone and didn’t know the back streets, their
response times to crimes increased. Hobbs informed Turner that
Joyner’s decision was the reason for the increased response times.
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22-13728 Opinion of the Court 7

1. In December 2014, Turner Promoted Four Lieutenants to Captain, and Joyner Was Not One of Them. On December 24, 2014, Chief Turner signed a personnel or- der appointing four Lieutenants to Captain, effective January 1,
2. At that time, there were about 70 qualified Lieutenants and a total of only six Captain positions, one for each patrol Zone. Joyner was not promoted to Captain. As Police Chief, Turner was the sole decisionmaker under the Atlanta City Code for appointments to Captain or higher. He personally appointed every person who reached those positions during his time as Chief. He testified at trial that when considering officers for promotions, he took into account “their education, their work performance, their level of engagement throughout the entire police department, and their ability to accomplish a certain task that [he] was trying to fill.” Turner did not use an application process or conduct inter- views when deciding whom to appoint to higher-ranking positions. But he had “regular conversations” with Lieutenants and Sergeants about their career goals. For example, another man testified that because he was interested in being promoted from Lieutenant to Captain, he scheduled a meeting with Turner to go over his re- sume. And he received the promotion in the December 2014 per- sonnel order, the one involved in this case. Joyner, by contrast, was not that proactive. He did not reach out to Turner to show his interest in being appointed to Captain. USCA11 Case: 22-13728 Document: 48-1 Date Filed: 03/25/2026 Page: 8 of 63

8 Opinion of the Court 22-13728

Some parts of Chief Turner’s testimony at trial indicate that
he took into account the races of officers under consideration for
promotions. Turner agreed that when replacing the “select num-
ber” of Captain positions that were occupied by an African Amer-
ican Captain, he was “looking for the most qualified African-Amer-
ican lieutenant.” In those cases, a “white officer” would be “ex-
cluded from consideration.” Similarly, if he was “replacing a white
captain,” then “an African-American lieutenant was excluded from
consideration.” In that way, Turner “reserved a number of captain
positions in Zones 1 through 6, the field zones, for white officers.”
And others for Black officers.
Turner testified that in December 2014, Zone 2 had an Afri-
can-American Captain in office, and so “he or she was going to be
replaced by a well-qualified African-American officer.” Turner’s
practice “excluded from consideration people of every other race”
but African-Americans for that position. Turner never considered
Joyner, who was White, for the position of Captain in Zone 2.
But Turner also testified at trial that he did not exclude any
candidates from appointment to Captain based on their race. He
repeatedly pushed back on Joyner’s counsel’s use of the word “re-
served” to describe how race influenced his selections. He clarified:
“You keep using the word ‘reserved.’ I had the sole discretion to
change the major to a white or a black commander, which I did on
multiple occasions.” And he stated: “I will not say I reserved a po-
sition for any race or gender.”
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22-13728 Opinion of the Court 9

Instead, Turner testified, his “intent was to make sure that
we had the best individual for each rank at every appointment.” In
his own words, he explained that he had maintained “a long-stand-
ing practice that we were represented at all ranks and races through
our department.” He tried to “keep a balance” of three Black and
three White Captains, though at least at one point there were four
White and two Black Captains.
Turner was adamant that he had replaced outgoing officers
with new appointees of different races on “[m]ultiple occasions.”
For example, in the December 2014 personnel order that Joyner
challenges, Turner replaced Major Finley, who is Black, with a
White person. And he testified that when Assistant Chief An-
dresen, who is White, retired, Turner promoted a Black com-
mander to that position.
Other testimony also shows that Turner did not always re-
place outgoing officers with people of the same race. Joyner him-
self testified that he had seen Chief Turner replace a Black Captain
or Major with a White Captain or Major. And Joyner’s own wit-
ness, Lieutenant Azie Horne, admitted that in Zone 6, he had ob-
served that Chief Turner replaced a White Major with a Black Ma-
jor.
Turner added that he had a practice of moving new Captain
appointees out of the Zones in which they had previously been
working so that they would not be supervising their former peers.
Joyner, who was in Zone 2 at the time of the personnel order he is
challenging in this case, was aware of that practice.
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10 Opinion of the Court 22-13728

1. On or Around October 15, 2015, Joyner Reported Allegations of “Ticket Fixing” to OPS and the FBI. In August of 2015, Officer Tom Coxe pulled over the grand- son of Andrew Young (the former Mayor of Atlanta and former Ambassador to the United Nations). Coxe issued him three traffic citations. According to Chief Turner’s testimony, the grandson then called Turner (with whom he had a personal relationship) and reported that Coxe had given him unclear instructions during the traffic stop. Turner asked Major Hobbs to check on the incident. Hobbs and Coxe discussed the matter, and Coxe decided to void the tickets. Then Joyner got involved. He testified that Coxe told him that Coxe had “been asked to change some tickets” to warnings, and to do it for Hobbs and Turner. Joyner understood that, during Coxe’s conversation with Major Hobbs, Coxe felt like he was being “threatened” with the risk of losing his “off days” or “being trans- ferred” if he did not downgrade the tickets. (Turner and Hobbs insist that they never asked Coxe to void the tickets and their only purpose in questioning Coxe about the traffic stop was to find out what had happened.) On or around October 20, 2015, Joyner reported Hobbs and Turner to the FBI and OPS for “fixing” the tickets. He alleged that Hobbs improperly instructed Coxe to “take the tickets back.” Turner and Hobbs were aware Joyner had filed the OPS re- port against them. Hobbs was “frustrated” that Joyner had done USCA11 Case: 22-13728 Document: 48-1 Date Filed: 03/25/2026 Page: 11 of 63

22-13728 Opinion of the Court 11

that. Zone 2 Captain Sharonne Steed recalled Hobbs “being upset
about the complaint.”
6. On October 27, 2015, Hobbs took
away Joyner’s “flextime.”
Before October 2015, Joyner had been able on occasion to
start work early and at other times to work late, thereby
“chang[ing] [his] schedule to accommodate what [he] need[ed] to
do.” But Joyner was stopped from doing that just one week after
he had filed the ticket-fixing report. On October 27, 2015, at the
direction of Hobbs, Captain Steed notified Joyner that from then
on he would be required to work a shift from 10:00 a.m. to 6:00
p.m. In that way he was put on a “fixed” schedule and taken off a
“flexible” schedule or “flextime” as it is sometimes called.
Joyner emailed Steed on that same day to ask when his new
schedule would begin, explaining that: “I need to re-arrange an ex-
tra Job and the schedule with my kids.” Steed responded that the
schedule change was “effective immediately.”
Joyner testified that when Steed told him about the schedule
change, she also said: “I don’t know what’s going on with you and
the City, and I don’t want to have anything to do with it. This is
coming down from above me . . . .”
Joyner testified that the ability of officers ranked Lieutenant
(as he was) or higher to work a flexible schedule was a “custom that
goes on” and had “been going on” in the APD for years. Other
testimony supported that fact. Steed agreed that there was an “in-
formal” flextime policy, and that officers ranking Lieutenant or
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12 Opinion of the Court 22-13728

higher could use it to “[b]alanc[e] the hours out” and work extra
jobs if they wanted to. She herself used flextime to “cut out early”
and pick up her daughter or accompany her elderly parents to ap-
pointments. Major Daniel Rasmussen similarly testified that Lieu-
tenants were sometimes “allow[ed] . . . to alter their hours” and
“come in later” in order to work other jobs. He said that holding
an extra job is a “privilege” at the APD.
Joyner himself had been using his flexible schedule to sup-
plement his income by working an additional job in the afternoon
as an off-duty patrol officer for a private security company. By the
time of the schedule change, Joyner had held that second job for at
least twelve years. He testified that the elimination of his flextime
cut his income by causing his second job wages to be reduced by at
least two-thirds.
Joyner also testified that his superiors “knew that [he] had to
be at [his second job] at a certain time in the afternoon,” and he
had “a permit” (a written document signed by his “commanders”)
allowing him to work that position. That’s consistent with the de-
partment’s Standard Operating Procedures, which require that an
employee obtain written permission from the Chief or the Chief’s
designee before the employee can “engage in any employment out-
side the Department.”
Joyner testified that his loss of flextime also disrupted his
ability to pick up his young children (ages 5 and 9 at the time) from
school. Picking them up then was both a personal commitment
and, under a divorce decree, a legal obligation. After his flextime
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22-13728 Opinion of the Court 13

schedule was taken away, Joyner told his supervisors he had to have
more flexibility to take care of his kids, and he received permission
to end his workday at 4:00 p.m. twice a week to pick up his children
from school.
But even with that partial dispensation, Joyner was still una-
ble to fulfill his legal obligation to pick up his children after school
three times a week every other week. More specifically, he was left
unable to fulfill the terms of his divorce decree once every two
weeks. And if some “important” issue “came up” with his children,
Joyner lacked the flexibility to deal with it. He testified that if
“something came up where [he] needed to go get them,” he would
now have to “call [his] supervisor and take of[f ] from work and
clock out and go do it.”
On November 3, 2015, Joyner emailed Captain Steed about
his loss of flextime to “put on the record that this is an unwanted
shift change” and to state that he “firmly believe[d] [it was] retalia-
tory and directly related to [his] complaint(s) and not the needs of
the department.” Steed responded in part: “The change to you hav-
ing more set hours are [sic] not in any way related to legal action
you have ongoing with the City of Atlanta. . . . The set hours are
for more awareness when you will be at work and physically avail-
able to your unit personnel and citizens, as with all lieutenants un-
der Zone 2 command.”
Major Hobbs and Chief Turner deny that the schedule
change was retaliatory. Hobbs testified that it “had nothing to do
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14 Opinion of the Court 22-13728

with the OPS investigation” of him and that he gave the OPS inves-
tigation “no consideration whatsoever” when he put Joyner on a
fixed schedule. Instead, he asserts that he changed Joyner’s hours
in response to issues with Joyner’s accessibility. Hobbs testified that
Joyner was not returning missed calls. Hobbs added that on one
occasion after he had been unable to reach Joyner, he sent him an
email saying, “this is the third time you’ve been unavailable by your
cell phone.” (That email is not in the record.)
Hobbs admitted that “a month or two” passed between that
email and the change in Joyner’s schedule. He suggested that some
unspecified event finally pushed him to take away Joyner’s flextime,
explaining: “I gave him another opportunity and after that last op-
portunity that’s when I told Captain Steed since I can’t find him,
tell him he is on a fixed schedule, Monday through Friday, 10 a.m.
to 6 p.m.” Hobbs did not provide any detail about the one “last
opportunity” he gave Joyner and how Joyner failed to take ad-
vantage of it.
In his testimony Joyner admitted that Major Hobbs had told
him he was “having difficulty contacting” him. But in Joyner’s tell-
ing, the communication issue was not entirely his fault. Joyner re-
membered two occasions before October 27, 2015 (the day his flex-
time was removed) when Hobbs had struggled to contact him. On
one of those occasions Joyner was at home, and he had made it
“very clear” to Hobbs that it was difficult to reach him at home due
to cell service issues in the area. On the second occasion Joyner
recalled Hobbs having trouble reaching him, Joyner had been on
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22-13728 Opinion of the Court 15

duty at Lenox Mall, where it is difficult to get a cell phone signal or
even “get a police radio to work.”
Joyner, against his wishes, worked the fixed schedule for a
period of eight or nine months, until he was transferred to Zone 5,
outside of Hobbs’s chain of command. Once in Zone 5, Joyner
was again allowed to work a flexible schedule. So the claimed re-
taliatory harm allegedly resulting from his reporting ticket fixing
was the loss of his ability to work a flextime schedule for a period
of eight or nine months.
B. The Pretrial Proceedings
Joyner filed a lawsuit asserting four claims that are relevant
to this appeal. One was a Title VII racial discrimination claim, see
42 U.S.C. § 2000e-2(m), against the City of Atlanta, Chief Turner,
and Major Finley, based on the theory that Joyner was denied a
Captain position in 2014 because Turner had a policy of replacing
outgoing Black and White captains with captains of the same race.
The district court granted the motion to dismiss that claim against
Finley and Turner because Title VII grants relief only against em-
ployers, not against employees. That dismissal is not challenged on
appeal. The court did not dismiss the Title VII claim against the
City itself; that claim proceeded to trial.
The other three claims in the lawsuit were based on allega-
tions of retaliation: (1) a claim under Title VII, see 42 U.S.C.
§ 2000e-3, against the City alleging that it denied Joyner a Captain
position in 2014–15 because of his 2008 complaint of racial discrim-
ination; (2) a First Amendment claim under 42 U.S.C. § 1983 against
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16 Opinion of the Court 22-13728

Turner and Hobbs alleging that they took away his ability to work
flextime because he reported ticket fixing to the FBI and the Office
of Professional Standards; and (3) a Georgia Whistleblower Act, see
Ga. Code Ann. § 45-1-4, claim against the City alleging that the
same loss of a flextime schedule was retaliation based on Joyner’s
report of ticket fixing.
The City, Turner, and Hobbs moved for summary judgment.
A magistrate judge issued a report recommending that the court
deny the motion for summary judgment on Joyner’s Title VII racial
discrimination claim, but that it grant the motion on Joyner’s three
retaliation claims. The district court determined that Joyner’s ob-
jections to the magistrate judge’s report and recommendation had
“no merit.” It concluded that Joyner’s Title VII retaliation claim
failed because there was no causal connection between his 2008
complaint of racial discrimination and the decision not to appoint
him Captain in 2014–15. The court also concluded that Joyner’s
§ 1983 First Amendment and Georgia Whistleblower claims failed
because he had not shown an “adverse employment action.” The
district court approved the report and recommendation and
adopted it as the judgment of the court.
C. The Trial and Post-Trial Proceedings Involving
the Title VII Discrimination Claim
Joyner’s Title VII racial discrimination claim — and that
claim alone — proceeded to trial. On the second-to-last day of the
four-day trial (not including jury deliberations), after Joyner had
presented his case and before he rested, he moved under Federal
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22-13728 Opinion of the Court 17

Rule of Civil Procedure 15(b)(2) to amend the pleadings to con-
form to the evidence. He sought to add an equal protection claim
2
under 42 U.S.C. § 1983 and a 42 U.S.C. § 1981 claim. The court
allowed Joyner to add the equal protection claim, but not the § 1981
claim.
Right after he moved to amend the pleadings, Joyner moved
for judgment as a matter of law under Rule 50(a). Pointing to Chief
Turner’s testimony that he “reserved” certain positions for people
of certain races, Joyner moved the court to direct a verdict for him
on the Title VII claim. The court denied that motion.
The first two questions on the verdict form asked the jury to
enter findings by a preponderance of the evidence on two ques-
tions. One: did the City “den[y]” Terry Joyner an appointment to
Captain? Two: if so, was race a “motivating factor” in that deci-
sion?
Joyner objected to the first question on the verdict form, the
one asking whether the City had “denied” him a promotion. He
argued that was not an independent element of his Title VII claim

2
Title 42 U.S.C. § 1981 (a) states: “All persons within the jurisdiction of
the United States shall have the same right in every State and Territory to
make and enforce contracts, to sue, be parties, give evidence, and to the full
and equal benefit of all laws and proceedings for the security of persons and
property as is enjoyed by white citizens, and shall be subject to like punish-
ment, pains, penalties, taxes, licenses, and exactions of every kind, and to no
other.” The statute’s prohibitions include “racial discrimination against white
persons.” McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 287 (1976).
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18 Opinion of the Court 22-13728

because it did “not reference in any way . . . that race was a factor
in the denial of the appointment.” The court overruled the objec-
tion.
Before the jury got the case, the parties had stipulated that
the APD’s “promotion process” is set forth in the City’s Code of
Ordinances (stipulated fact #4). And they had stipulated that ac-
cording to that Code, “Chief Turner was the sole decision-maker
for appointments to the positions of Captain or higher” (stipulated
fact #5). During deliberations, the jury asked to “see the City of
Atlanta Charter that grants authority to [the] Police Chief for ap-
pointments,” citing stipulated fact #4. (No one disputes that by
“Charter,” the jury meant the Code.) The court provided the jury
with the part of the Code which explained that certain appoint-
ments, including Captain appointments, are made at the discretion
of the Police Chief.
Joyner also requested that the court provide the jury with
the part of the Code that included the City’s anti-discrimination
employment policy. He based that request on the Rule of Com-
pleteness and asserted that statements made by the City’s attorney
during closing arguments had confused the jury about whether
Chief Turner was subject to those laws. This is the part of the ar-
gument to the jury by the City’s attorney that Joyner was talking
about:
You know, if [Turner] has that practice [of replacing
outgoing Black Captains with officers of the same
race], he ain’t alone. . . . And it happens at the highest
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22-13728 Opinion of the Court 19

levels of government you have to do this. That is why
George H.W. Bush nominated Thurgood Marshall to
replace Clarence Thomas on the Supreme Court.
First black Supreme Court Justice replaced by a black
Supreme Court Justice.
(Of course, the City’s attorney got it backwards. Justice Thomas
was appointed to the seat vacated by Justice Marshall, not the other
way around.) The court denied Joyner’s request to provide the jury
with the part of the Code containing the anti-discrimination policy.
The jury returned a verdict in favor of the City on Joyner’s
Title VII discrimination claim. The jury answered “no” to the ques-
tion of whether the City had denied Joyner an appointment to Cap-
tain (the question to which Joyner had objected). As we’ll discuss,
the City’s explanation for the jury’s finding is that Chief Turner
never had a reason to consider Joyner for that position, because
Joyner had failed to put himself forward as a candidate and also be-
cause of his unsatisfactory performance in other roles. The jury did
not reach the other question on the verdict form.
Following trial, Joyner filed a motion for judgment as a mat-
ter of law under Rule 50(b) and for a new trial under Rule 59. His
motion challenged the court’s decisions (1) not to direct a verdict
as to liability on the Title VII claim, (2) to overrule Joyner’s objec-
tion to the first question on the jury verdict form, and (3) not to
send the jury the part of the Code containing the City’s anti-dis-
crimination policy in response to its question about Chief Turner’s
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20 Opinion of the Court 22-13728

appointment authority. The district court denied the motion. This
is Joyner’s appeal.
Joyner challenges the grants of summary judgment to Chief
Turner, Major Hobbs, and the City on his retaliation claims. He
also challenges rulings the district court made involving the trial of
his claim that racial discrimination was a motivating factor behind
the City’s failure to promote him to captain in 2014–15.
II. DISCUSSION
We will start by reviewing the district court’s grant of sum-
mary judgment on Joyner’s three retaliation claims and then review
the trial and post-trial rulings on his discrimination claim, which
survived summary judgment but not the jury trial.
A. The Grants of Summary Judgment Against
Joyner on His Three Retaliation Claims
The three retaliation claims Joyner brought were: (1) a claim
under Title VII that he had been retaliated against in 2014 for com-
plaining in 2008 about racial discrimination against white employ-
ees; (2) a claim under 42 U.S.C. § 1983 that he had been retaliated
against for reporting ticket fixing; and (3) a Georgia Whistleblower
claim that he had been retaliated against for reporting ticket fixing.
1. The Grant of Summary Judgment on
the Title VII Retaliation Claim
Title VII makes it unlawful “for an employer to discriminate
against any of his employees . . . because [that employee] has op-
posed any practice made an unlawful employment practice.” 42
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22-13728 Opinion of the Court 21

U.S.C. § 2000e-3(a). The word “because” is key. Unless the plain-
tiff establishes that element, a Title VII retaliation claim cannot sur-
vive. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362
(2013) (“[A] plaintiff making a retaliation claim under § 2000e–3(a)
must establish that his or her protected activity was a but-for cause
of the alleged adverse action by the employer.”); Gogel v. Kia Motors
Mfg. of Ga., Inc., 967 F.3d 1121, 1135 (11th Cir. 2020) (en banc) (“[A]
plaintiff must prove that had she not engaged in the protected con-
duct, she would not have [suffered the adverse action].”) (alteration
adopted) (quotation marks omitted).
Joyner’s claim alleged that in December 2014 he was denied
a promotion to Captain because nearly seven years earlier, in Feb-
ruary 2008, he had complained about racial discrimination. The dis-
trict court granted summary judgment against Joyner after deter-
mining that he had not created a genuine issue of fact about
whether his 2008 complaint about racial discrimination was the
reason the City did not promote him in 2014. The court was right
to do so.
To prevail on a Title VII retaliation claim, the causation ele-
ment requires a plaintiff to show that the decisionmaker was aware
of the protected conduct, which in this case is the complaint Joyner
had made about racial discrimination six years earlier. See McCann
v. Tillman, 526 F.3d 1370, 1376 (11th Cir. 2008); Goldsmith v. City of
Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993) (“At a minimum, a
plaintiff must generally establish that the employer was actually
aware of the protected expression at the time it took [the] adverse
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22 Opinion of the Court 22-13728

action.”); see also Hudson v. S. Ductile Casting Corp., 849 F.2d 1372,
1376 (11th Cir. 1988) (affirming grant of summary judgment to the
defendant on retaliatory discharge claim where there was uncon-
tradicted evidence the decisionmakers did not know of the plain-
tiff’s protected conduct); McCollum v. Bolger, 794 F.2d 602, 610–11
(11th Cir. 1986) (affirming judgment for defendant and holding that
the plaintiff failed to prove a prima facie case of retaliation where
the evidence showed that the decisionmaker did not know that the
plaintiff was engaging in protected conduct). There is an exception
for “cat’s paw” situations, see Crawford v. Carroll, 529 F.3d 961, 979
n.21 (11th Cir. 2008), but there is no evidence of a paw, whether a
cat’s or otherwise, in this case.
Chief Turner was the sole decisionmaker on the question of
who would get the 2014 promotion. Major Finley was the person
to whom Joyner had made the complaint about racial discrimina-
tion in 2008. Finley testified in his deposition that he never said
anything to Chief Turner about Joyner’s complaint. And Chief
Turner testified in his deposition that Finley never told him that
Joyner had made any complaints of racial discrimination. Their
testimony was unrefuted. Joyner presented no evidence that any-
one had ever informed Chief Turner of Joyner’s 2008 complaint.
None.
Joyner urges us not to credit Chief Turner’s unrefuted, “self-
serving testimony” that he didn’t know Joyner had complained
about discrimination. Joyner argues that we should instead infer
Turner knew about Joyner’s complaints because Finley knew
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22-13728 Opinion of the Court 23

about them, and Joyner considers it “obvious[]” that Finley was at-
tempting to suppress allegations of racial discrimination on
Turner’s behalf. But Joyner’s judgment about what is obvious is
not evidence.
And we have held that the fact sworn statements are self-
serving does not permit us to disregard them at the summary judg-
ment stage. Feliciano v. City of Miami Beach, 707 F.3d 1244, 1253
(11th Cir. 2013) (“To be sure, Feliciano’s sworn statements are self-
serving, but that alone does not permit us to disregard them at the
summary judgment stage.”); see also id. at 1246 (“As Logan Bleck-
ley, one of Georgia’s greatest judges, explained more than a cen-
tury ago: ‘Interest and truth may go together.’”).
Alternatively, in Joyner’s view, Turner “could have found
out about Joyner’s complaint [alleging there was racial discrimina-
tion] from OPS, Lt. Lyle, or a number of other sources.” But what
could have happened is not evidence that creates a genuine issue of
fact about what did happen; it’s speculation, conjecture, and wish-
ful thinking that doesn’t stand a chance against unrefuted testi-
mony going the other way. See Cordoba v. Dillard’s, Inc., 419 F.3d
1169, 1181 (11th Cir. 2005) (“Speculation does not create a genuine
issue of fact; instead, it creates a false issue, the demolition of which
is a primary goal of summary judgment. . . . [S]ummary judgment
was appropriate because there was no evidence that the decision-
maker was aware of the plaintiff’s [protected status].”) (quotation
marks omitted); Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d
1287, 1294 (11th Cir. 2013) (explaining that on summary judgment,
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24 Opinion of the Court 22-13728

“[a]ll reasonable inferences arising from the undisputed facts
should be made in favor of the nonmovant, but an inference based
on speculation and conjecture is not reasonable”) (quotation marks
omitted).
After the City presented evidence in the form of sworn tes-
timony from Turner that he was not told Joyner had reported alle-
gations of racial discrimination, the burden shifted to Joyner to
“come forward with sufficient evidence to rebut this showing,”
which required “relevant and admissible evidence,” not mere “con-
clusory allegations.” Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir.
1991). Because Joyner didn’t do that he failed to meet his burden
of presenting evidence to rebut the defendants’ evidence, which
entitled the defendants to summary judgment. See Brungart v. Bell-
South Telecomms., Inc., 231 F.3d 791, 800 (11th Cir. 2000) (affirming
the grant of summary judgment to an employer on a retaliation
claim because “the evidence [was] unrefuted that . . . the decision
maker[] did not know” the employee had engaged in protected ac-
tivity, so the employee “failed to create a genuine issue of fact as to
a causal connection between” the protected activity and the ad-
verse action). That is enough to defeat a Title VII retaliation claim.
See McCann, 526 F.3d at 1376; Goldsmith, 996 F.2d at 1163.
Sometimes a “close temporal proximity” between the pro-
tected conduct and the adverse action is enough to bolster a causal
link between the two. See McCann, 526 F.3d at 1376 (quotation
marks omitted) (concluding that an employee made out a prima
facie case where five days passed between the employer’s receipt
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22-13728 Opinion of the Court 25

of the employee’s grievance and the retaliation). But the proximity
here is not even close to close. More than six years –– over 2,500
days –– passed between Joyner’s complaint about racial discrimina-
tion in February 2008 and Chief Turner’s decision not to promote
him to Captain in December 2014. Nothing in the record allows us
to infer that those two distantly spaced events were in any way re-
lated.
Not giving up easily, Joyner argues that he suffered “a pat-
tern of antagonism” following his protected conduct in 2008 that
bridges the six-year delay between his protected conduct and the
retaliation he alleges. He points to: (1) Major Finley’s angry re-
sponse in 2008 when he was told about the accusations of racial
discrimination; (2) Finley’s act of changing Joyner’s schedule to pa-
trol night watch 14 days after Joyner instigated an OPS investiga-
tion into the complaints of racial discrimination in February–
March of 2008; (3) Lyle’s statement to Joyner that Finley would
“never forget” Joyner’s complaint (February 2008); and (4) the
City’s failure to promote Joyner over the next several years. The
first three of those events involve Finley who was not the deci-
sionmaker, instead of Chief Turner who was. And all three of
those events occurred in early 2008, so there’s still a six-year gap.
The three events cannot support an inference that Joyner suffered
discrimination six years later, when he was not promoted to Cap-
tain based on a choice made by someone other than Finley.
Nor does the fact that the City did not promote Joyner dur-
ing that six-year period indicate a long simmering resentment over
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26 Opinion of the Court 22-13728

his 2008 complaint. Joyner has failed to identify any particular po-
sitions in specific zones to which he should have been promoted at
any particular times during those six years or any position he re-
quested to be considered for. And his theory of simmering resent-
ment against him is contradicted by the fact that Chief Turner gave
him the opportunity to lead an elite unit — the fugitive squad —
between 2012 and 2014. Turner put Joyner in that position because
Turner believed at that time Joyner was “on the right track” and he
wanted to give Joyner an opportunity to prove himself. He didn’t
prove himself, at least not in a positive way. Joyner’s argument does
not deal with the fact that he had multiple performance issues dur-
ing those six years, see supra at 4–6, which runs counter to any ar-
gument that he deserved to be promoted.
Joyner relies on two decisions from our Court where em-
ployees’ retaliation claims survived summary judgment despite
multi-month temporal gaps between protected conduct and retali-
atory act. Instead of helping him, those two decisions highlight
why the necessary causal link is lacking in his own case.
In one of those cases, Simmons v. Camden County Board of Ed-
ucation, 757 F.2d 1187 (11th Cir. 1985), high school teachers sued
their Board of Education, alleging that they were fired in retaliation
for filing complaints of discrimination. Id. at 1188. Their discrim-
ination complaints were filed the summer before their February
terminations. Id. at 1189. We held that the plaintiffs had made out
a prima facie Title VII retaliation case because of what the deci-
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22-13728 Opinion of the Court 27

sionmaker had done during those eight months. He had made “re-
marks . . . demonstrating his displeasure” with the investigation
that resulted from their complaints and he had commented that he
“associate[d]” one of the plaintiffs with the investigation. Id. That
was enough to present a genuine issue of fact about whether the
plaintiffs’ complaints were a cause of the adverse action.
Three factors distinguish the Simmons case from this one.
First, eight months is not 82 months (February 2008 to December
2014). Second, not only did Chief Turner not make any remarks
about the protected conduct during that time, the unrefuted evi-
dence is that he did not even know about it. Third, unlike the de-
cisionmaker in Simmons, during the period between protected con-
duct and alleged retaliation Turner gave Joyner the opportunity to
prove himself. Because of those differences, Simmons is readily dis-
tinguishable from this case.
Joyner also points to our decision in Stanley v. City of Dalton,
219 F.3d 1280 (11th Cir. 2000). There we concluded that an officer’s
First Amendment retaliation claim survived summary judgment
despite “an almost four year gap between his protected speech and
his termination.” Id. at 1291. But the plaintiff in Stanley presented
evidence of ongoing unfair treatment during those four years, in-
cluding being “confronted . . . about his [protected] statements,”
“transferred” against his will, and “reprimanded.” Id. at 1292.
Joyner has failed to show that he suffered any similar mistreatment
during the six-year gap in his case. See supra at 4–6.
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28 Opinion of the Court 22-13728

A six-year gap without any alleged mistreatment during that
time is not a four-year gap with discriminatory treatment during
the time. We noted in Stanley that the almost four-year gap in that
case “arguably defeat[ed] causation,” and thought it was “a close
call” whether the plaintiff had presented enough evidence to create
a genuine dispute on causation. 219 F.3d at 1291–92. By contrast,
the six-year gap free of discriminatory acts in this case does not
present a close call, or even a close call about whether there is a
close call. There isn’t. Because Joyner has failed to show a genuine
issue of fact about whether there was a causal connection between
his protected activity in 2008 and his not getting a promotion in
2014, we affirm the grant of summary judgment to the City. See
Crawford, 529 F.3d at 970.
2. The Grant of Summary Judgment on the
First Amendment Retaliation Claim
When an official asserts a qualified immunity defense, and
it’s established, as it is here, that he was acting within the scope of
his discretionary authority, the plaintiff must make two showings.
See Acosta v. Miami-Dade Cnty., 97 F.4th 1233, 1239 (11th Cir. 2024).
One is that the official “violated a statutory or constitutional right”
and the other is “that the right was clearly established at the time
of the challenged conduct.” Id. (quotation marks omitted). We’re
free to address “the merits and clearly-established prongs in either
order, and an official is entitled to qualified immunity if the plaintiff
fails to establish either.” Id. (quotation marks omitted); see also
Huebner v. Bradshaw, 935 F.3d 1183, 1187 (11th Cir. 2019) (“We may
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22-13728 Opinion of the Court 29

address the two parts in either order.”); see also Pearson v. Callahan,
555 U.S. 223, 236–42 (2009); Jarrard v. Sheriff of Polk Cnty., 115 F.4th
1306, 1323 (11th Cir. 2024); Piazza v. Jefferson Cnty., 923 F.3d 947,
951 (11th Cir. 2019); Gaines v. Wardynski, 871 F.3d 1203, 1208 (11th
Cir. 2017). We will start with the merits.
a. The Claim on the Merits
Joyner’s First Amendment retaliation claim, procedurally
enabled by 42 U.S.C. § 1983, is against Major Hobbs and Chief
Turner. It alleges that their decision to no longer allow Joyner to
work a flexible schedule was made in retaliation for his reports to
the FBI and OPS about ticket fixing.3
To establish a First Amendment retaliation claim, a plaintiff
must “demonstrate that the asserted right is protected by the Con-
stitution and that he . . . suffered an adverse employment action for
exercising the right.” Akins v. Fulton Cnty., 420 F.3d 1293, 1300 (11th
Cir. 2005) (quotation marks omitted). There is no dispute that
Joyner’s conduct in filing a report with the FBI and OPS alleging
that Hobbs and Turner engaged in ticket fixing is protected by the
First Amendment. Nor is there any dispute that a week after he
filed that report the privilege of working flextime was taken away

3 Neither Hobbs nor Turner has argued that we should treat them dif-

ferently for purposes of assessing Joyner’s First Amendment claim. Hobbs
gave the order to put Joyner on a fixed schedule. Turner testified that he was
aware that Hobbs was doing that. He did nothing to prevent it. Turner does
not argue that he wasn’t involved in the decision to remove Joyner from a
flextime schedule. He and Hobbs travel together on this issue.
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30 Opinion of the Court 22-13728

from him, requiring him to work a fixed-hours schedule. The ques-
tion is whether Joyner’s loss of a flextime schedule was material for
retaliation purposes.
Built into the adverse action element of an anti-retaliation
claim is a requirement of injury or harm. See Burlington Northern
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) (holding that Title
VII’s anti-retaliation provision “protects an individual not from all
retaliation, but from retaliation that produces an injury or harm”).
The Supreme Court has explained that, “We speak of material ad-
versity because we believe it is important to separate significant
from trivial harms.” Id. at 68; see also id. at 69–70 (“By focusing on
the materiality of the challenged action and the perspective of a
reasonable person in the plaintiff’s position, we believe this stand-
ard will screen out trivial conduct while effectively capturing those
acts that are likely to dissuade employees from complaining or as-
4
sisting in complaints about discrimination.”).
That makes sense not only in Title VII retaliation cases but
also in First Amendment retaliation cases like this one because the
purpose of all prohibitions against retaliation is to prevent those

4
One other point: to the extent that First Amendment retaliation
claims have an “important condition of employment” requirement but Title
VII claims don’t, that does not matter here. It doesn’t matter because the loss
of flextime, or viewed from a different direction, the imposition of a fixed
schedule, can involve an important condition of employment. And here it
does, as we explain in the text discussing the materiality of the change to an
employee in Joyner’s circumstances. See infra at 34–40.
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22-13728 Opinion of the Court 31

who would engage in protected conduct or speech from being de-
terred, dissuaded, or chilled from doing so by the fear of reprisals.
Their purpose is not to get the judiciary bogged down in ref-
ereeing workplace squabbles involving “those petty slights or mi-
nor annoyances that often take place at work and that all employees
experience.” Burlington Northern, 548 U.S. at 68; See Akins, 420 F.3d
at 1302 (rejecting First Amendment claim to the extent it was based
on an employer’s action that did not “rise to that level of substan-
tiality required by our caselaw”); Stavropoulos v. Firestone, 361 F.3d
610, 621 (11th Cir. 2004) (concluding that the asserted employer
action was “not substantial enough to be actionable” under the
First Amendment), abrogated on other grounds by Burlington Northern,
548 U.S. 53; see also Kelly v. Omaha Hous. Auth., 721 F.3d 560, 562
(8th Cir. 2013) (“Reviewing whether an adverse employment ac-
tion occurred [in support of a First Amendment retaliation claim],
a court must distinguish petty slights or minor annoyances from a
material change in the conditions or terms of employment.”) (quo-
tation marks and citations omitted); Wrobel v. Cnty. of Erie, 692 F.3d
22, 31 (2d Cir. 2012) (“[D]e minimis slights and insults do not
amount to retaliation. It would trivialize the First Amendment to
hold that harassment for exercising the right of free speech was al-
ways actionable no matter how unlikely to deter a person of ordi-
nary firmness from that exercise.”) (quotation marks and citation
omitted).
The First Amendment and Title VII standards for the ad-
verse action element of a retaliation claim are not always phrased
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32 Opinion of the Court 22-13728

identically. See Akins, 420 F.3d at 1301 n.2; see also Stavropoulos, 361
F.3d at 619–20. A plaintiff asserting a Title VII retaliation claim
“must show that a reasonable employee would have found the
challenged action materially adverse, which in this context means
it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Burlington Northern, 548
U.S. at 68 (quotation marks omitted). And, as we will discuss, a
public employee asserting a First Amendment retaliation claim
must show that the employer’s action involved an “important con-
dition of employment” and “would likely chill the exercise of con-
stitutionally protected speech.” Akins, 420 F.3d at 1300 (quotation
marks omitted).
Notwithstanding any semantic differences, we have ob-
served that the Title VII and First Amendment standards for ad-
verse actions are “consonant.” Id. at 1301 n.2; Stavropoulos, 361
F.3d at 619. Each standard “inform[s]” the other. Akins, 420 F.3d
at 1301 n.2 (“[W]e regularly use First Amendment cases to inform
our analysis of Title VII retaliation claims.”); Stavropoulos, 361 F.3d
at 619 (“[W]e regularly draw cases applying [the requirement that
a plaintiff asserting a First Amendment retaliation claim establish
an important condition of employment] to inform our analysis of
Title VII retaliation claims.”). That is why we have cited Title VII
retaliation decisions, including Burlington Northern, when analyzing
First Amendment retaliation claims. See, e.g., Akins, 420 F.3d at
1301 n.2 (explaining why “we cite some Title VII cases to inform
our [First Amendment] analysis”); Booth v. Pasco Cnty., 757 F.3d
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22-13728 Opinion of the Court 33

1198, 1212 (11th Cir. 2014) (citing Burlington Northern and recogniz-
ing the similar purpose of Title VII and First Amendment anti-re-
taliation principles). And why we are doing it here.
Other circuits have done the same. See Zelnik v. Fashion Inst.
of Tech., 464 F.3d 217, 227 (2d Cir. 2006) (“Our standard for First
Amendment retaliation claims has always been the equivalent to
the standard set forth in Burlington Northern.”); Feminist Majority
Found. v. Hurley, 911 F.3d 674, 697 n.12 (4th Cir. 2018) (“The stand-
ard for proving a materially adverse action in the Title VII retalia-
tion context . . . is similar to the standard for demonstrating an ad-
verse action in the First Amendment retaliation context.”) (citing
Burlington Northern, 548 U.S. at 68); Couch v. Bd. of Trs. of the Mem’l
Hosp. of Carbon Cnty., 587 F.3d 1223, 1237–38 (10th Cir. 2009) (“The
test in Burlington Northern is also consonant with our First Amend-
ment employment retaliation cases. . . . Additionally, the test in
Burlington Northern is analogous to the standard articulated by sev-
eral other circuits in the First Amendment context.”).
We have recognized that “as a matter of law, important con-
ditions of employment include discharges, demotions, refusals to
hire or promote, and reprimands,” as well as “any other conduct
that alters the employee’s compensation, terms, conditions, or priv-
ileges of employment.” Akins, 420 F.3d at 1300 (emphasis added)
(quotation marks omitted). Any of that type can satisfy the adverse
action element if they are material. The most relevant here is “priv-
ileges of employment.”
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34 Opinion of the Court 22-13728

It is undisputed that for more than a decade, Joyner had used
his flextime schedule to work a second job with a private security
company, which supplemented his income. Not having a fixed
schedule of hours had also enabled him to pick up his young chil-
dren (ages 5 and 9) from school, which was both a personal com-
mitment and a legal obligation under his divorce decree. The loss
of flextime prevented him from picking them up on Fridays. And
if “something came up where [he] needed to go get them” from
school, without flextime he would have to “call [his] supervisor and
take of[f ] from work and clock out and go do it.” Not only that
but the loss of his flextime privilege meant Joyner could not work
as many hours at his second job, which reduced his wages at that
job by at least two-thirds.
We believe that, for Title VII purposes at least, it is bounti-
fully clear that the type of loss Joyner suffered because his work
schedule was changed from flextime to a fixed schedule of hours
is material for materiality purposes. In discussing the difference
between minor and material employment-related changes, the
Court in Burlington Northern stated that the significance of any
given act of retaliation will often depend upon the particular cir-
cumstances. 548 U.S. at 69. The Court gave this example: “A sched-
ule change in an employee’s work schedule may make little differ-
ence to many workers, but may matter enormously to a young
mother with school-age children.” Id.
By the same token, it matters a lot to a father with school-
age young children for whom he not only felt a personal obligation
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22-13728 Opinion of the Court 35

to pick them up from school but was also legally obligated to do so
under the terms of a court decree. An “act that would be immate-
rial in some situations is material in others.” Id. (quotation marks
omitted). The loss of a privilege of employment like the one
Joyner suffered is one that would deter, dissuade, or chill a reason-
able employee in his circumstances from engaging in protected ac-
tivity. See Akins, 420 F.3d at 1300; Burlington Northern, 548 U.S. at
67–70.
The facts construed in Joyner’s favor persuaded the district
court, as they persuade us, that Turner and Hobbs violated his con-
stitutional rights. But the district court was persuaded that they
were entitled to summary judgment on qualified immunity
grounds. We are not.
b. The Qualified Immunity Defense
Although the facts viewed in Joyner’s favor show that Turner
and Hobbs violated his First Amendment rights, they would be en-
titled to qualified immunity if they were “performing discretionary
functions” (which is not disputed) and if “their conduct [did] not
violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Stanley, 219 F.3d
at 1285 (quotation marks omitted). The district court concluded
that their conduct didn’t, which is why it ruled that Hobbs and
Turner were entitled to qualified immunity-based summary judg-
ment on the First Amendment claim.
We recognize three ways in which a plaintiff can demon-
strate a violation of clearly established law: (1) “he can point us to
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36 Opinion of the Court 22-13728

a materially similar case that has already been decided”; (2) “he can
point us to a broader, clearly established principle that should con-
trol the novel facts of the situation”; or (3) “the conduct involved
in the case may so obviously violate the Constitution that prior
case law is unnecessary.” Echols v. Lawton, 913 F.3d 1313, 1324
(11th Cir. 2019) (alterations adopted) (quotation marks). Under
any approach, “we look for fair warning to officers that the conduct
at issue violated a constitutional right.” Gaines, 871 F.3d at 1208
(quotation marks omitted); see Hope v. Pelzer, 536 U.S. 730, 741
(2002). “The relevant, dispositive inquiry in determining whether
a right is clearly established is whether it would be clear to a rea-
sonable state official that his conduct was unlawful in the situation
he confronted.” Leslie v. Hancock Cnty. Bd. of Educ., 720 F.3d 1338,
1345 (11th Cir. 2013) (alteration adopted) (quotation marks omit-
ted) (emphasis omitted).
The broad principle of law approach applies to the particular
circumstances of this case. See Echols, 913 F.3d at 1324. At the time
of the alleged misconduct, it was clearly established that govern-
ment officials cannot lawfully strip an employee of “privileges of
[his] employment” where those privileges are important enough to
the employee that taking them away would chill his expression of
protected speech. See Akins, 420 F.3d at 1300 (quotation marks
omitted). With the facts viewed in the light most favorable to
Joyner, that’s exactly what Hobbs and Turner did by taking away
from him the privilege of his flextime benefit.
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22-13728 Opinion of the Court 37

Working a flexible schedule was a privilege that the APD ex-
tended to all officers who had reached the rank of Lieutenant.
Joyner testified in his deposition it was an APD “custom” to give
that privilege to Lieutenants. Captain Steed testified that “flex-
time” was an “informal way” to allow Lieutenants and higher-
ranked officers to “[b]alanc[e] the hours out” and work extra jobs.
One APD major explained in his deposition that Lieutenants could
“alter their hours” to work other jobs, and he said that holding an
extra job is a “privilege.”
Joyner’s use of his flextime benefit while he had it shows its
importance to police officers like him. For over twelve years he had
used flextime to work a second job for a private security company.
His supervisors knew that Joyner worked that second job on a reg-
ular schedule. They knew it was a source of additional income for
him. The loss of that privilege diminished the hours Joyner could
work at his second job and thereby reduced his income. It reduced
his total income just as a reduction in his pay at the police depart-
ment by the same amount would have. And Joyner also used flex-
time to pick up his young children from school, which was his legal
obligation under a divorce decree.
Any reasonable supervisor would know that flextime was a
“privilege[] of employment” important enough to Joyner that if he
engaged in protected speech, as he did, taking that privilege away
would chill his, and any reasonable officer’s, expression of speech
in the future. See Akins, 420 F.3d at 1300 (quotation marks omit-
ted).
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38 Opinion of the Court 22-13728

Our precedent on transfers reinforces that conclusion. Strip-
ping away a privilege held by a class of higher-ranked employees is
similar to transferring an individual to a less desirable position.
And this Court has long held that a transfer to a less desirable posi-
tion can constitute an adverse action supporting a First Amend-
ment claim. See, e.g., Cook v. Gwinnett Cnty. Sch. Dist., 414 F.3d
1313, 1316–18, 1321 (11th Cir. 2005) (affirming the denial of sum-
mary judgment to a school district on a bus driver’s First Amend-
ment retaliation claim where she was “transferred” to a new group
of drivers, meaning she lost her “team leader” position and the
“prestige and office responsibilities” that came with it); McCabe v.
Sharrett, 12 F.3d 1558, 1559, 1564 (11th Cir. 1994) (concluding that
a plaintiff employee established an adverse action on summary
judgment based on the employer police chief “transferring her
from her job as secretary to the police chief to a less desirable job”);
Waters v. Chaffin, 684 F.2d 833, 835 & n.5, 837 n.9, 840 (11th Cir.
1982) (concluding an officer who was placed “in another depart-
ment within [the same county] at an appropriately lower graded
classification” with a salary “as nearly comparable as possible” had
established a First Amendment violation; also listing authorities for
the proposition that a “transfer” can support a First Amendment
claim); Patton v. King, 544 F.2d 827, 829–30 (5th Cir. 1977) (reversing
the grant of summary judgment to an employer where there was a
genuine dispute of material fact as to whether the employee
teacher’s “reassignment” from teaching one group of students to
another group required “different skills . . . to teach each category”
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22-13728 Opinion of the Court 39

5
and whether the transition could be made “easily”). All of those
cited decisions existed before the defendants took away Joyner’s
flextime benefit.
Although Joyner’s supervisors did not reduce the salary he
received from the APD, they did reduce the total amount of the
salaries he received from the APD and his outside employer and in
that way reduced his total income. Money is fungible and total in-
come is what pays the bills. To argue that total income from total
employment does not count when measuring adverse action is to
argue against the basic economics of working life.
The decision to strip Joyner of the privilege of working flex-
time effectively reduced his total income because it resulted in a
reduction of hours, and hence a reduction of income, from his sec-
ond job. We have long held that “if an employer’s conduct nega-
tively affects an employee’s salary” and “would likely chill the exer-
cise of constitutionally protected speech,” it is an adverse action for
purposes of a First Amendment retaliation claim. And that is true
whether the negative effect is directly or indirectly caused by the
employer’s conduct. See Akins, 420 F.3d at 1300; see also Cook, 414
F.3d at 1318 (concluding plaintiff’s loss of a position “which had
guaranteed her forty hours of work per week” was an adverse ac-
tion where she lost that guaranteed number of hours and with it

5
Decisions by the former Fifth Circuit handed down before October
1, 1981, are binding on this Court. Bonner v. City of Prichard, 661 F.2d 1206,
1207 (11th Cir. 1981) (en banc).
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40 Opinion of the Court 22-13728

the guarantee she could earn the same amount of money); Walker
v. Schwalbe, 112 F.3d 1127, 1130–31 (11th Cir. 1997) (holding that a
salary reduction along with a demotion was an adverse action);
McCabe, 12 F.3d at 1564 (concluding that a transfer to another posi-
tion was an adverse action where the plaintiff lost some “eligibility
for salary increases” although “her salary ha[d] not decreased”).
Even though Joyner’s employer did not directly reduce his APD sal-
ary, the loss of flextime was an action that would likely chill his
speech because it had the materially adverse effect of reducing the
total of his salaries. See Crawford, 529 F.3d at 973 (“Under the hold-
ing of Burlington, the type of employer conduct considered action-
able has been broadened from that which adversely affects the
plaintiff’s conditions of employment or employment status to that
which has a materially adverse effect on the plaintiff, irrespective of
whether it is employment or workplace-related.”). A reduction in
total income is a reduction in total income, and that is clearly ad-
verse.
When they revoked his flextime benefit, Joyner’s supervisors
knew he worked a second job, which was an additional source of
income for him, and that without the flextime benefit at the APD,
the hours he worked at that second job and the added income that
came with it would be reduced. Given these circumstances, Bur-
lington Northern, 548 U.S. at 68, and our precedent, every reasonable
official standing in the shoes of Turner and Hobbs would know
that taking away Joyner’s flextime privilege would “alter[] . . . priv-
ileges of [his] employment” and “would likely chill the exercise of
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22-13728 Opinion of the Court 41

[his] constitutionally protected speech.” Akins, 420 F.3d at 1300
(quotation marks omitted).
In another argument, Hobbs and Turner contend they are
entitled to qualified immunity because they removed Joyner’s flex-
time — at least in part — for lawful reasons. See Foy v. Holston, 94
F.3d 1528, 1535 (11th Cir. 1996) (holding that a “defendant is enti-
tled to [qualified] immunity” under a clearly-established law analy-
sis “[w]here the facts assumed for summary judgment purposes . . .
show mixed motives (lawful and unlawful motivations)”); Stanley,
219 F.3d at 1296 (“A defendant is entitled to qualified immunity un-
der the Foy rationale only where, among other things, the record
indisputably establishes that the defendant in fact was motivated,
at least in part, by lawful considerations.”). And, they say the evi-
dence shows they would have made the same decision even absent
Joyner’s protected speech. See Harris v. Shelby Cnty. Bd. of Educ., 99
F.3d 1078, 1086 (11th Cir. 1996) (concluding there was insufficient
evidence to support a jury verdict in favor of a plaintiff on a First
Amendment claim where the defendant officials “presented over-
whelming evidence” that they would have taken the same action
“even in the absence of [the plaintiff’s] speech”).
But the evidence construed in the light most favorable to
Joyner, as it must be at the summary judgment stage, would allow
a jury to find that Hobbs and Turner took away Joyner’s flextime
privilege entirely for an unlawful, retaliatory purpose. See supra at
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42 Opinion of the Court 22-13728

34–37. They can, of course, attempt to establish at trial that those
6
are not the actual facts.
3. The Georgia Whistleblower Act Retaliation Claim
Joyner’s Georgia Whistleblower Act claim relies on the
same theory as his First Amendment claim: that the removal of his
flextime benefits was retaliation for his filing a report with the OPS
and FBI. The Whistleblower Act claim is against the City, not
Turner and Hobbs. And it has different elements from the First
Amendment claim.
To get past summary judgment with a Georgia Whistle-
blower claim a plaintiff must create a genuine issue of material fact
that he reported or disclosed “a violation of or noncompliance with
a law, rule, or regulation to either a supervisor or government
agency.” Ga. Code Ann. § 45-1-4 (d)(2). The statute defines “law,
rule, or regulation” as “any federal, state, or local statute or ordi-
nance or any rule or regulation adopted according to any federal,
state, or local statute or ordinance.” Id. § 45-1-4(a)(2).

6
Turner and Hobbs may still assert a qualified immunity case at trial,
in which case the district court should “use special verdicts or written inter-
rogatories to the jury to resolve disputed facts [relevant to] . . . the qualified-
immunity question.” Cottrell v. Caldwell, 85 F.3d 1480, 1487 (11th Cir. 1996)
(quotation marks omitted); see also Butler v. Smith, 85 F.4th 1102, 1118 n.6 (11th
Cir. 2023) (“Of course, [the defendant] can raise qualified immunity at trial,
urge the jury to view the record as she has framed it, seek special interrogato-
ries to resolve the historical facts underlying her immunity argument, and
then resubmit the issue to the district court for decision.”).
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22-13728 Opinion of the Court 43

If the alleged misconduct reported by the employee is not a
violation of or noncompliance with “a law, rule, or regulation” as
defined in the statute, the employee’s claim fails. For example, in
Edmonds v. Bd. of Regents of the Univ. Sys. of Ga., 689 S.E.2d 352 (Ga.
Ct. App. 2009), the Georgia Court of Appeals concluded that uni-
versity-associated employers were entitled to judgment as a matter
of law on an employee’s claim under the Whistleblower Act that
the university’s laboratory failed to “adhere to accepted ‘biosafety
rules.’” Id. at 357, disapproved of on other grounds by Wolfe v. Bds. of
Regents of the Univ. Sys. of Ga., 794 S.E.2d 85, 92 n.5 (Ga. 2016). That
was not enough to state a claim because an accepted biosafety rule
is not “a law, rule, or regulation” under the Act. See id.
The City argues that Joyner’s complaint to the Office of Pro-
fessional Standards about alleged ticket fixing did not involve the
violation of a “law, rule, or regulation.” Joyner stresses that his
“complaint was about [Major] Hobbs unlawfully threatening [Of-
ficer] Coxe if he did not change the tickets or ‘take them back.’”
But Joyner’s briefs to the district court and this Court do not specify
which law, rule, or regulation doing that allegedly violated. Nor
does his complaint. Nor does his amended complaint. The police
department’s memorandum summarizing Joyner’s OPS complaint
does not indicate that Joyner alleged the violation of any specific
rule, regulation, or law, nor does it indicate that he explicitly ac-
cused anyone of doing anything “illegal” or “unlawful.”
During his deposition, Joyner discussed his call to the FBI,
but he never identified any relevant rule, regulation, or law that was
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44 Opinion of the Court 22-13728

allegedly violated. He acknowledged there is nothing “improper
or illegal” about changing a traffic citation to a warning, which is
within the discretion of the officer who wrote the citation. And he
admitted that it wasn’t “improper” for a superior to ask an officer
to change a traffic citation to a warning.
As in Edmonds, Joyner’s failure to specify the law, rule, or
regulation that was allegedly violated is fatal to his claim. 689
S.E.2d at 357. We affirm the grant of summary judgment to the
City on Joyner’s Whistleblower Act claim.
B. Joyner’s Challenge to Rulings Made in Connection
With the Trial of the Title VII Discrimination Claim
As we’ve stated, the only claim that went to trial was Joyner’s
Title VII racial discrimination claim. He lost a jury verdict on it,
and the court entered judgment against him. Attempting to have
that part of the judgment reversed, Joyner raises four issues: (1)
whether the district court abused its discretion in denying in part
his motion to amend the complaint; (2) whether the court abused
its discretion in its response to a request from the jury; (3) whether
the jury verdict form accurately reflected the elements of the claim;
and (4) whether Joyner is entitled to judgment as a matter of law
in his favor on the claim.
1. Denial in Part of the Motion to Amend the Complaint
At trial, after presenting his evidence, Joyner moved under
Rule 15 to amend his complaint to add two claims: an equal pro-
tection claim and a 42 U.S.C. § 1981 claim. The court allowed
Joyner to add the equal protection claim, but not the § 1981 claim.
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22-13728 Opinion of the Court 45

Joyner considers it “mysterious[]” that the district court allowed
him to add the first claim but not the second. He argues that “the
direct and circumstantial evidence which supported adding an
equal protection claim, without question supported adding said
Section 1981 claim.” In particular, he emphasizes Chief Turner’s
testimony, which he views as “direct evidence” of racial discrimi-
nation.
Under Rule 15, “[w]hen an issue not raised by the pleadings
is tried by the parties’ express or implied consent, it must be treated
in all respects as if raised in the pleadings.” Fed. R. Civ. P. 15(b)(2).
And “[a] party may move — at any time, even after judgment — to
amend the pleadings to conform them to the evidence and to raise
an unpleaded issue.” Id. “[I]mplied consent under Rule 15(b) will
not be found if the defendant will be prejudiced; that is, if the de-
fendant had no notice of the new issue, if the defendant could have
offered additional evidence in defense, or if the defendant in some
other way was denied a fair opportunity to defend.” Cioffe v. Morris,
676 F.2d 539, 541–42 (11th Cir. 1982).
When the trial started, the only claim to be tried was
Joyner’s claim for racial discrimination under Title VII. Discrimi-
nation claims under Title VII and 42 U.S.C. § 1981 “have the same
requirements of proof and use the same analytical framework.”
Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1256–57 (11th Cir.
2012) (quotation marks omitted); see also Lewis v. City of Union City,
918 F.3d 1213, 1220 n.5 (11th Cir. 2019) (en banc) (applying the
“same analysis” to Title VII and § 1981 discrimination claims).
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46 Opinion of the Court 22-13728

But “[a] § 1981 claim differs in two relevant ways from a Ti-
tle VII claim — there is no cap on damages and the causation stand-
ards are higher.” Tynes v. Fla. Dep’t of Juv. Just., 88 F.4th 939, 943
(11th Cir. 2023); see also Comcast Corp. v. Nat’l Ass’n of Afr. Am.-
Owned Media, 589 U.S. 327, 337–41 (2020) (explaining that a Title
VII plaintiff can prevail by “show[ing] that discrimination was even
a motivating factor,” while a § 1981 plaintiff must show “but for”
causation).
The City insists it “did not expressly or impliedly agree to try
a Section 1981 claim” and would be prejudiced by the mid-trial ad-
dition of that claim. Noting that § 1981 has no damages cap, the
City asserts it would have been “more aggressive” on the issue of
damages if it had known that § 1981 was at issue. And the City
points out that by the time Joyner made his Rule 15 motion, Horne,
Joyner, and Turner had already testified.
We agree with the City that it would have been prejudiced
by the mid-trial addition of a claim with a new causation standard
and no damages cap after key witnesses had already testified. For
that reason, the district court did not abuse its discretion in denying
Joyner’s Rule 15 motion. See Cioffe, 676 F.2d at 541–42.
Not only that, but Joyner also loses on the Rule 15 issue for
another reason: the verdict against him on the Title VII discrimina-
tion claim dooms his § 1981 claim. The jury specifically found that
the City had not denied Joyner a promotion to Captain in 2014, as
his complaint had alleged. See supra at 19. We are affirming that
verdict. Given that Joyner was not denied the promotion, he cannot
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22-13728 Opinion of the Court 47

have been denied it on racial discrimination grounds. Especially
not since the causation standard for a § 1981 claim is more difficult
for a plaintiff to meet than the causation standard for a Title VII
claim. See Comcast, 589 U.S. at 337–41; Tynes, 88 F.4th at 943. Joyner
has not shown (and has barely made any effort to show) that the
district court abused its discretion in denying his motion to amend
his pleadings. 7 It didn’t.
2. Response to the Jury’s Request
During closing argument, Halima Horton White, who was
counsel representing the City of Atlanta, compared Chief Turner’s
power to appoint Captains to the president’s power to nominate
Supreme Court justices. She said, “Let’s talk a little bit about this
practice,” referring to Turner’s admitted practice of taking race
into account when he appointed Captains. “You know, if he has
that practice, he ain’t alone.” She went on to tell the jury: “[W]hen

7 Joyner’s briefs to this Court do not address any of the City’s argu-

ments about why his motion to amend the pleadings was properly denied. He
merely asserts that the evidence for his Title VII claim “supports” a § 1981
claim. He does not discuss the City’s point that it would have been prejudiced
by the belated addition of a new claim. And he does not discuss how the ver-
dict on his Title VII discrimination claim affects his § 1981 claim. We could
hold that Joyner has abandoned these issues. See Sapuppo v. Allstate Floridian
Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“[A]n 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.”). But since there are
two other good reasons to affirm the district court’s denial of his motion to
amend the pleadings, we will leave it at that.
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48 Opinion of the Court 22-13728

they don’t have diverse leadership in these government organiza-
tions, public confidence is not going to be there. . . . That is why
George H.W. Bush nominated Thurgood Marshall to replace Clar-
ence Thomas on the Supreme Court. First black Supreme Court
Justice replaced by a black Supreme Court Justice.” (Counsel’s
statement, probably inadvertently, flipped what she meant to say
about who was nominated to replace whom, but the point of it was
nonetheless clear.)
In this appeal the City, whose lead counsel is Ms. White, in-
sists that her remarks were “not likening Chief Turner’s appoint-
ment authority to the President’s appointment authority.” But that
is exactly what her “he ain’t alone” remarks did. Otherwise, what
was the point of the statement? The strong implication of her
statement was that, if Turner did make appointments based on
race, he did only what others have done, and that implication was
offered in the hope that the jury could be persuaded that it was
somehow excusable for Turner to base employment decisions on
race — just like it would be for a president to consider race in
choosing who to nominate to fill a Supreme Court vacancy.
Of course, as counsel well knew, the Constitution expressly
vests in the president the power to “nominate, and by and with the
Advice and Consent of the Senate, . . . appoint . . . Judges of the
supreme Court.” U.S. Const. art. II, § 2, cl. 2. Chief Turner is not
president. His authority to promote lieutenants to captains in the
Atlanta Police Department comes from the City Code, not from
the United States Constitution. Counsel was well aware that in
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22-13728 Opinion of the Court 49

making promotion decisions Chief Turner is subject to Title VII’s
prohibition against discriminating on the basis of race. And under
Title VII, the City can be called to account in damages for any de-
cision of his to discriminate in promotions based on race. See Qui
v. Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1236 (11th Cir. 2016).
Continuing her representation of the City, counsel told us
that the point of her argument to the jury was that punitive dam-
ages were improper because Chief Turner, if he did consider race
when making appointments, was “not a bad person” doing some-
thing “horrible.” The record does not support that interpretation
of her argument. In her closing argument, she did not link her im-
proper remarks to punitive damages or damages in general, or even
mention damages –– not that her remarks would have been proper
if she had done so.
It was improper for the City of Atlanta, through its lead
counsel at trial, to represent to its citizens in a Title VII action that
a Police Chief who made appointments based on race was simply
following in the footsteps of others. There isn’t a “he ain’t alone”
or “everybody does it” defense to a Title VII discrimination claim,
nor is such an assertion relevant to damages.
But while Joyner’s counsel objected to other parts of the de-
fense’s closing argument, he didn’t object to these improper re-
marks. He didn’t raise the issue as part of a request for a mistrial,
or a new trial, or as a separate basis for reversal in this appeal. The
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50 Opinion of the Court 22-13728

impropriety of the remarks comes to us only because they are re-
lated to another issue he has raised, an issue about the court’s re-
sponse to the jury’s request to see a document.
During deliberations, the jury asked to “see the City of At-
lanta Charter that grants authority to [the] Police Chief for ap-
pointments.” The jury’s request specifically referred to item num-
ber four from the stipulated facts that had been read to them dur-
ing the trial. Stipulated facts number four and number five, which
had been read to the jury during presentation of the defense case,
state:
4. From 2010 through 2016, APD’s promotion process
is set forth in the Police, Fire, and Corrections Promo-
tional Rules and Regulations, which are codified in
the City’s Code of Ordinance (“Atlanta City Code”).

1. From 2010 through the time he retired as Chief, and per the Atlanta City Code, Chief Turner was the sole decision-maker for appointments to the positions of Captain or higher and himself appointed every indi- vidual that made the rank of Captain or higher.

In response to the jury’s request, the court did not provide it
with the entire City Code. Instead, it provided the jury with the
subdivision titled “Police, Fire and Corrections Promotions.” The
“Definitions” part (Section 114-227) of that subdivision states: “Dis-
cretionary ranks means ranks . . . to which appointments can be
made at the discretion of the police chief . . . .” And Section 144-
230 states that the “rank of police captain” is “a discretionary rank.”
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22-13728 Opinion of the Court 51

Joyner’s counsel asked the court to send the jury another
part of the Code: Section 114-166, which sets forth the City’s writ-
ten “Equal Opportunity and Nondiscrimination” employment pol-
icy. He was concerned about opposing counsel’s reference during
closing argument to the president’s appointment power, and he ar-
gued that “those decisions of the President to nominate a member
of the Supreme Court are not subject to Title VII and . . . equal
opportunity laws,” while “Chief Turner is.” He “speculat[ed]” that
the jury’s question indicated it was confused by defense counsel’s
reference to the president’s appointment power. To cure that con-
fusion, counsel for Joyner requested that the jury also be sent the
part of the Code that “makes it clear that the appointment author-
ity of Chief Turner is in fact subject to Title VII and equal oppor-
tunity laws.” The court denied his request. It noted that the part
of the Code about discretionary ranks was “in evidence already,”
while the anti-discrimination policy that Joyner wanted to send the
jury would have been “new evidence” that the court didn’t want to
introduce at the deliberation stage.
In his post-trial motions under Rules 50 and 59, Joyner chal-
lenged the court’s decision not to provide more of the Code to the
jury, and the district court rejected that challenge.
Joyner contends that the district court abused its discretion
by not providing the jury with the part of the Code containing the
City’s written anti-discrimination employment policy. His counsel
colorfully argues that providing the jury with that material would
be “a cure for the evidentiary harpoon” defense counsel launched
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52 Opinion of the Court 22-13728

by “liken[ing] Turner’s appointment authority to that of the U.S
President’s authority.”
Joyner points to Broaddus v. Florida Power Corp., 145 F.3d
1283 (11th Cir. 1998). In that case we ordered a new trial on a claim
under the Age Discrimination in Employment Act (ADEA), 29
U.S.C. § 621, et seq., after the district court failed to adequately re-
spond to a jury question. See 145 F.3d at 1285, 1288. The jury heard
evidence during trial that the plaintiff “had made substantial claims
on the company’s medical policies.” Id. at 1287. That evidence
was relevant to one of the plaintiff’s other claims, but not to his
ADEA claim. See id. After the other claim was dismissed, the jury
asked the court about the “significance” of that evidence. Id. We
held in Broaddus that the question revealed that the jury was “con-
fused,” and it “should have alerted the court that the jury was fo-
cusing on a non-issue and possibly did not understand the precise
burden of proof under the ADEA for proving age discrimination.”
Id. But instead of alleviating that confusion, the district court’s re-
sponse had been to “inform[] the jury that it could give the evi-
dence in question whatever weight it deemed appropriate.” Id. at
1287–88. That was grounds for a new trial, we concluded, because
we were “left with a substantial doubt as to whether the jury was
properly guided in its deliberations.” Id. at 1288.
The cases are distinguishable. Unlike in Broaddus, in this case
there was nothing in the jury’s request to see a specific document
that indicated it was confused about how to weigh any evidence.
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22-13728 Opinion of the Court 53

As the district court explained, instead of signaling prejudicial con-
fusion, it “seem[ed] more likely that the jury, diligently surveying
the evidence, wished to review for itself an item referenced by the
parties but not otherwise introduced.”
Joyner insists that, given opposing counsel’s improper re-
marks, the jury may have thought Chief Turner was not subject to
anti-discrimination laws. But the court specifically instructed the
jury: “An employer may not discriminate against an employee be-
cause of the employee’s race . . . .” And “[a] jury is presumed to
follow its instructions.” Weeks v. Angelone, 528 U.S. 225, 234 (2000).
We have no reason to doubt that the jury did so.
Joyner also argues that the jury being sent only two pages of
the Code, without the Code’s anti-discrimination employment pol-
icy, violated the Rule of Completeness. But what the jury asked
for was the part of the Code that “grants authority to [the] Police
Chief for appointments.” And that’s exactly what the court sent
back to them. Under the Rule of Completeness, “[i]f a party intro-
duces all or part of a statement, an adverse party may require the
introduction, at that time, of any other part — or any other state-
ment — that in fairness ought to be considered at the same time.”
Fed. R. Evid. 106. Even assuming that the rule applies when a jury
asks to see a specific part of a document, we don’t think a district
court abuses its discretion by not sending the jury more of a docu-
ment than the jury asked to see, at least not when fairness does not
require it to do so. And here it doesn’t.
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54 Opinion of the Court 22-13728

As we have explained, “after introduction of part of a docu-
ment, Rule 106 does not automatically make the entire document
admissible.” United States v. Mosquera, 886 F.3d 1032, 1049 (11th
Cir. 2018) (quotation marks omitted). Instead, it allows “additional
admissions from a writing . . . when relevant and necessary to qualify,
explain, or place into context the portion already introduced.” Id. (alter-
ation adopted) (quotation marks omitted) (emphasis added).
Given that the jury only requested to see the part of the Code giv-
ing the Police Chief the power to make appointments, the part stat-
ing that the chief was subject to anti-discrimination laws was not
relevant or necessary to that request. At least not where separate
jury instructions had already instructed the jury that he was subject
to them. See id.
As we have mentioned, Joyner’s counsel did not object to
the improper remarks of opposing counsel during closing argu-
ments. He was in the courtroom, he heard the remarks, and he
could judge for himself whether they were likely to sway the jury.
He did object to some other parts of opposing counsel’s remarks,
but not to the remarks in question. And the judge clearly instructed
the jury that an employer may not discriminate against an em-
ployee based on race. The judge was there, heard the remarks, and
had a better perspective than we do about their effect. Given all of
the circumstances, the court did not abuse its discretion by not
sending the jury more of the City Code provisions than it had re-
quested, which is how the issue has been presented to us.
3. Challenge to the Verdict Form
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22-13728 Opinion of the Court 55

A mixed-motive Title VII racial discrimination claim, like
the one that went to the jury in this case, has two elements: “(1) the
defendant took an adverse employment action against the plaintiff;
and (2) a protected characteristic was a motivating factor for the
defendant’s adverse employment action.” Quigg, 814 F.3d at 1239
(alteration adopted) (quotation marks omitted). “An employee can
succeed on a mixed-motive claim by showing that illegal bias . . .
‘was a motivating factor for’ an adverse employment action, ‘even
though other factors also motivated’ the action.” Id. at 1235 (quot-
ing 42 U.S.C. § 2000e–2(m)).
These are the first two questions as they appeared on the
verdict form:
1. Do you find by a preponderance of the evidence
that Defendant the City of Atlanta denied Terry
Joyner an appointment to Captain on December 24,
2014?
2. Do you find by a preponderance of the evidence
that Plaintiff Terry Joyner’s race was a motivating fac-
tor in the City of Atlanta’s decision not to appoint
Joyner to Captain on December 24, 2014?
The jury answered “no” to the first question, so it did not reach the
second one.
Before closing argument, Joyner had objected to the first
question on the verdict form, asserting:
[I]t does not reference in any way . . . that race was a
factor in the denial of the appointment, which we
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56 Opinion of the Court 22-13728

think is the very essence of Title VII, the race discrim-
ination clause. It basically says was he denied an ap-
pointment, as though this is some sort of employ-
ment case . . . .
Counsel for the City responded that for a Title VII racial discrimi-
nation claim, “You first have to establish that there is an adverse
employment action, and then as the second factor you look at
whether race was a motivating factor in that adverse employment
action.” The court overruled Joyner’s objection, and it rejected the
same argument in his post-trial motion under Rules 50 and 59.
Joyner’s argument to us is the same one he presented to the
district court. He says that the first question on the verdict form is
“completely divorced from controlling law because the question
made zero attempt to ascertain, from the jury, the essential answer
— regarding liability — of whether the jury believed race played a
role/motivating factor in the decision [not] to appoint Joyner to the
position of Captain.” In his view, whether he would have been de-
nied an appointment to captain despite any consideration of race
is merely a defense through which the City might mitigate dam-
ages under the “same decision” rule.
The inquiry when verdict form interrogatories are chal-
lenged is whether the jury was misled, or whether the questions
“accurately reflect the law.” McNely v. Ocala Star-Banner Corp., 99
F.3d 1068, 1072 (11th Cir. 1996) (quotation marks omitted). It
wasn’t, and they do. Joyner had to prove two elements to prevail
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22-13728 Opinion of the Court 57

on this claim. See Quigg, 814 F.3d at 1239. One was that the de-
fendants denied him the promotion to captain in 2014. Id. Only if
the jury had found he was denied the promotion would it have
been called on to determine if race had been a motivating factor in
that denial. See id. Logically, if there were no denial, race cannot
have motivated the nonexistent denial. It makes no sense to ask
what motivated something to happen that did not happen.
The district court did not err in rejecting Joyner’s challenges
to the verdict form at trial.
4. Motions for Judgment as a Matter
of Law and for a New Trial
After Chief Turner testified at trial about how race factored
into his employment decisions, Joyner moved under Rule 50(a) for
judgment as a matter of law on liability for his Title VII claim. The
court denied that motion. After trial, Joyner again moved for judg-
ment as a matter of law on liability (now under Rule 50(b)) and for
a new trial on damages under Rule 59, and the court again denied
his motions.
Joyner contends before this Court that he was entitled to
judgment as a matter of law as to liability on his Title VII racial
discrimination claim. He says that Turner “testified, unambigu-
ously, . . . [that he] reserved a certain number of seats for particular
races, to the exclusion of all other races,” so to Joyner there is “zero
question” that the City had a practice of appointing officers that
was motivated at least in part by race, in violation of Title VII. See
Qui, 814 F.3d at 1236, 1240 (explaining that for liability under Title
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58 Opinion of the Court 22-13728

VII a protected category such as race must be a motivating factor
for an unlawful employment practice but need not be the only mo-
tivating factor); 42 U.S.C. § 2000e–2(m).
A party is entitled to judgment as a matter of law on an issue
when there is “no legally sufficient evidentiary basis” for a reason-
able jury to find for the nonmoving party on that issue. Cleveland
v. Home Shopping Network, Inc., 369 F.3d 1189, 1192 (11th Cir. 2004);
see Fed. R. Civ. P. 50. “Credibility determinations, the weighing of
the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge.” Cleveland, 369 F.3d
at 1193 (quoting Reeves v. Sanderson Plumbing Prods., 530 U.S. 133,
150 (2000)); see also EEOC v. Massey Yardley Chrysler Plymouth, Inc.,
117 F.3d 1244, 1250 (11th Cir. 1997) (explaining that judgment as a
matter of law should be awarded to the party bearing the burden
of proof “only when the evidence favoring [that party] is so one-
sided as to be of overwhelming effect”). As for Joyner’s motion for
a new trial under Rule 59, a court may grant such a motion “for
any reason for which a new trial has heretofore been granted in an
action at law in federal court.” Fed. R. Civ. P. 59(a)(1)(A). We re-
view the district court’s denial of Joyner’s Rule 59 motion for abuse
of discretion. EEOC v. W&O, Inc., 213 F.3d 600, 610 (11th Cir.
2000).
By focusing exclusively on his theory that Turner made an
employment decision based on race, Joyner again ignores a neces-
sary element he was required to prove to prevail under Title VII.
The district court properly denied Joyner’s motions for judgment
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22-13728 Opinion of the Court 59

as a matter of law on liability because there was a legally sufficient
basis for the jury to find that he did not suffer an adverse action.
See Quigg, 814 F.3d at 1239.
To establish an adverse employment action for a Title VII
discrimination claim, the plaintiff must either show an “ultimate
employment decision . . . such as termination, failure to hire, or de-
motion,” or demonstrate he “suffered a serious and material change
in the terms, conditions, or privileges of employment.” Crawford,
529 F.3d at 970–71 (quotation marks omitted).
When, as here, the purported adverse action is the em-
ployer’s failure to promote, relevant considerations include
whether the employee was “qualified” for the promotion but was
rejected “despite qualifications.” See Vessels v. Atlanta Indep. Sch.
Sys., 408 F.3d 763, 768 (11th Cir. 2005); see also Turlington v. Atlanta
Gas Light Co., 135 F.3d 1428, 1434 (11th Cir. 1998) (concluding that
the plaintiff had failed to make out a prima facie discrimination case
under the Age Discrimination in Employment Act of 1967,
“[b]ecause he was rejected so early in the decision making process,
[he] has failed to demonstrate his qualifications for the job”). And
where, as here, “an employer does not formally announce a posi-
tion, but rather uses informal and subjective procedures to identify
a candidate,” the trier of fact can consider whether “the employer
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60 Opinion of the Court 22-13728

had some reason to consider [the plaintiff] for the post.” See Vessels,
8
408 F.3d at 768.
There was sufficient evidence for a jury to find (as it did) that
Turner did not take an adverse employment action against Joyner

8 While Joyner is challenging a jury’s verdict, Vessels and Turlington

were decided at the summary judgment stage. See Vessels, 408 F.3d at 765; Tur-
lington, 135 F.3d at 1437. In those two cases, we applied the McDonnell Douglas
burden-shifting framework, see Vessels, 408 F.3d at 767–68; Turlington, 135 F.3d
at 1432, which requires the plaintiff to make out a prima facie case, and then
gives the defendant a chance to provide a legitimate, non-discriminatory rea-
son for its decision. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973). That framework does not apply in a mixed-motive discrimination case
like this one, where an employer can be liable even if it was partially motivated
by non-discriminatory purposes. See Qui, 814 F.3d at 1236, 1240; see also 42
U.S.C. § 2000e–2(m). Anyway, once a “case [is] fully tried on the merits,” it’s
irrelevant whether a plaintiff has made out a prima facie case; at that point, the
McDonell Douglas framework “drops from the case,” and the factual question
is whether the employer took an adverse employment action against the plain-
tiff on the basis of a protected characteristic. U.S. Postal Serv. Bd. of Governors
v. Aikens, 460 U.S. 711, 713–15 (1983); see Collado v. United Parcel Serv., Co., 419
F.3d 1143, 1151 (11th Cir. 2005) (“After the defendant has met its burden of
production by offering other legitimate reasons for its employment decision,
however, the presumption raised by the prima facie case is rebutted, and . . .
the presumption of discrimination that arose when the plaintiff made his
prima facie showing drops from the case . . . .”) (quotation marks omitted).
Vessels and Turlington provide insight on what factors a fact-finder can
consider in this mixed-motive Title VII case because, like a plaintiff making a
prima facie case for discrimination, Joyner was required to show he suffered
an adverse employment action. See Vessels, 408 F.3d at 768; Quigg, 814 F.3d at
1239. Whether Joyner met that burden is informed by whether he was quali-
fied for the job and whether the decisionmaker had reason to consider him.
See Vessels, 408 F.3d at 768.
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22-13728 Opinion of the Court 61

when he did not promote him to Captain in 2014. For one thing,
the jury heard evidence that Joyner was not qualified because of
various performance issues. He failed to appear for court when he
was subpoenaed to testify against a criminal defendant. He disap-
pointed his supervisors as the head of the fugitive squad by show-
ing up at meetings unprepared, and he was ultimately removed
from that position because of his performance. He was disciplined
for sending an unprofessional and profane email from his work
email account. He received a performance rating that Shields
(Deputy Police Chief at the time) testified was “pretty much” the
lowest evaluation that officers generally received. He gave his su-
pervisor, Major Hobbs, the impression that he was arrogant (by
preemptively refusing to run the criminal investigation division
unit in Zone 2) and that he was not managing his staff efficiently
(by reassigning all A sector officers to B sector and all B sector of-
ficers to A sector, causing a delay in response time). All of those
instances of underperformance or malperformance easily could
lead a jury to reasonably conclude that Joyner was not qualified for
promotion to Captain. See Vessels, 408 F.3d at 768; Turlington, 135
F.3d at 1434.
Not only that, but Joyner never asked to be considered for a
promotion. Chief Turner testified that open positions for Captain
were “public knowledge within the police department.” But
Joyner never reached out to Turner to discuss his interest in a
higher-ranked position. His apparent lack of interest and failure to
take the initiative to obtain a promotion contrasts with another
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62 Opinion of the Court 22-13728

Lieutenant who actively sought out and obtained a promotion to
Captain.
That other Lieutenant testified that he proactively scheduled
a meeting with Chief Turner to express his interest and go over his
resume. He did get promoted to Captain under the same order
that Joyner thinks should have resulted in him being promoted.
Given Joyner’s failure to put himself forward as a candidate, it is no
wonder that Turner testified that Joyner was “never” under consid-
eration for the promotion. Based on the evidence, a jury could ra-
tionally conclude the absence of a promotion was not an adverse
employment action. See Turlington, 135 F.3d at 1434.
Additionally, of the four open Captain positions at the end
of 2014, Turner’s testimony supported a finding that only one was
potentially “reserved” for a Black officer because the preceding of-
ficer was Black. That was the Zone 2 Captain position. But Joyner
was already in Zone 2. And Turner testified without contradiction
that he had a practice of moving new Captain appointees out of
the Zones in which they had previously been working so they
would not be supervising former peers. Joyner was aware of that
practice. So there was evidence that Joyner (for reasons independ-
ent of his race) was never under consideration for an appointment
to the one position that was potentially, under his theory of the
case, reserved for a Black officer.
The jury determined that Joyner had not been denied a Cap-
tain appointment. We cannot say that that decision had “no legally
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22-13728 Opinion of the Court 63

sufficient evidentiary basis.” Cleveland, 369 F.3d at 1192. The dis-
trict court did not err by denying Joyner’s motion for judgment as
a matter of law. And because Joyner lost on the issue of liability, it
was no abuse of discretion for the court to deny his motion for a
new trial on the issue of damages. See W&O, 213 F.3d at 610.
III. CONCLUSION
We affirm the judgment of the district court, except that we
reverse the part of it that granted summary judgment on qualified
immunity grounds for Chief Turner and Major Hobbs on the First
Amendment retaliation claim. We remand the case for further pro-
ceedings on that claim.
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED.