Senior Judge Gerald Tjoflat, U.S. Court of Appeals for the Eleventh Circuit, concurred specially with the ruling. Photo: John Disney/ALM.

A lawsuit in which a former Miami-Dade police sergeant claims his firing was racially motivated drew a special concurrence from Senior Judge Gerald Bard Tjoflat of the U.S. Court of Appeals for the Eleventh Circuit, who called for his court to reconsider a procedure for ruling on summary judgments.

Tjoflat took issue with the use of the McDonnell Douglas burden-shifting framework, a three-part analysis used when retaliation claims under Title VII of the Civil Rights Act are based only on circumstantial evidence.

Problems arise, the judge wrote, when that method is used for plaintiffs who've brought parallel claims under Title VII, which is statutory in nature, and 42 U.S.Code 1981, which is constitutional in nature.

"McDonnell Douglas is properly used only to vindicate the rights protected by the Title VII statutory scheme," Tjoflat wrote. "It should not be used outside of that narrow context. To the extent that cases in our circuit suggest otherwise, I believe the issue should be reconsidered by this court en banc."

The appellate panel sided with Miami-Dade County in the case, finding plaintiff Harrius Johnson hadn't established a retaliation claim because he hadn't demonstrated that similarly-situated employees were treated differently.

Johnson, a black man, accused the county of racial discrimination and unlawful retaliation in 2016. He claimed his 22-year career ended because he'd filed several complaints with the Equal Employment Opportunity Commission against police officers he claimed had misbehaved.

The official reasons for Johnson's firing were insubordination, disrespecting superiors and failing to keep his home address up to date, according to the opinion. But his lawsuit claimed it was about his refusal to change evaluation reports, one of which alleged an officer had used racial slurs and profanity against black citizens.

But Johnson had repeatedly lost his patience in meetings about his allegations, according to the opinion, which noted that he was not fired by the same officer he'd accused.

"Promoting the chain of command and punishing insubordination are legitimate, important concerns for a police force, and Johnson has not offered proof that these legitimate reasons were pretextual," the ruling said.

The county has denied any wrongdoing. Defense attorneys Marlon Moffett and Javier Zapata of the Miami-Dade County Attorney's Office did not respond to a request for comment by deadline.

The appellate panel also affirmed a ruling that blocked the plaintiff from deposing Miami-Dade Mayor Carlos Gimenez. As Gimenez is the county's final decision-maker, the plaintiff had argued deposing the mayor was necessary to establish municipal liability. But the panel agreed with the lower court that this theory couldn't be used because it wasn't in Johnson's complaint.

Johnson will have another chance to establish a pretext for his firing, as the Eleventh Circuit vacated one part of the district court's ruling in light of a new comparator-evidence standard, Lewis v. City of Union City.

Johnson had argued pretext was evident because the county failed to investigate his discrimination claims, but the panel found the record showed otherwise, since the Miami-Dade Police Department sustained some of his most serious allegations.

"This suggests that the county was not attempting to sweep Johnson's complaint under the rug, but rather that Johnson's inappropriate methods of complaining were the reason he was disciplined," the opinion said.

Plaintiffs lawyer Anthony Georges-Pierre of Remer & Georges-Pierre in Miami was not available for comment by deadline.

Eleventh Circuit Judges Beverly Martin and Tjoflat served on the panel with Second Circuit Judge Barrington Parker, sitting by special designation.

Read the ruling:

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