Filed: Mar. 26, 2008
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT MARCH 26, 2008 THOMAS K. KAHN No. 07-13974 CLERK Non-Argument Calendar _ D. C. Docket No. 05-00155-CV-CDL-4 SAMMY L. SIMS, Plaintiff-Appellant, versus PATRICIA J. TAYLOR, Test Security Specialist, Educational Testing Service, In Her Individual and Official Capacity, EDUCATIONAL TESTING SERVICE, CAMILLE HASSENPLUG, Ph.D., Testing Coordinator, Columbus State University, In
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT MARCH 26, 2008 THOMAS K. KAHN No. 07-13974 CLERK Non-Argument Calendar _ D. C. Docket No. 05-00155-CV-CDL-4 SAMMY L. SIMS, Plaintiff-Appellant, versus PATRICIA J. TAYLOR, Test Security Specialist, Educational Testing Service, In Her Individual and Official Capacity, EDUCATIONAL TESTING SERVICE, CAMILLE HASSENPLUG, Ph.D., Testing Coordinator, Columbus State University, In ..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 26, 2008
THOMAS K. KAHN
No. 07-13974
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 05-00155-CV-CDL-4
SAMMY L. SIMS,
Plaintiff-Appellant,
versus
PATRICIA J. TAYLOR,
Test Security Specialist, Educational
Testing Service, In Her Individual and Official
Capacity,
EDUCATIONAL TESTING SERVICE,
CAMILLE HASSENPLUG, Ph.D., Testing Coordinator,
Columbus State University, In Her Individual and
Official Capacity,
FRANK BROWN, Ph.D,
President, Columbus State University,
KURT LANDGRAF, President and Chief Executive
Officer,
Educational Testing Service,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(March 26, 2008)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Sammy L. Sims appeals pro se the summary judgment in favor of
Educational Testing Service and against Sims’s complaint of breach of contract.
The district court concluded that the Testing Service was not required to release
Sims’s test score after Sims failed to present “acceptable and valid” identification.
We affirm.
I. BACKGROUND
Sims filed a complaint against Educational Testing Service; Kurt Landgraf,
the president of the Testing Service; Patricia Taylor, an employee of the Testing
Service; Camille Hassenplug, an employee of Columbus State University who
independently contracted with the Testing Service to administer exams; and Frank
Brown, the president of Columbus State University. Sims alleged that the refusal
by the Testing Service and the named parties to release his test scores from a
Praxis exam administered in September 2005 violated his federal civil rights and
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the defendants committed defamation and breach of contract under Georgia law.
While employed as a substitute teacher, Sims decided to seek a professional
teaching certificate. To obtain the certificate, Sims had to pass the Praxis I exam
and the two-part Praxis II exam. Sims registered to take these exams, which were
administered by the Testing Service in November 2004, January 2005, and
September 2005.
The Praxis registration bulletins required registrants to present “acceptable
and valid” identification before admission to each examination. Registrants were
required to present a single “primary identification document” that displayed their
photograph and signature. Acceptable primary identification documents included a
passport, driver’s license, state identification, national identification, or military
identification. If the primary identification did not contain a photograph or
signature, then the registrant was required to produce an unexpired supplemental
identification document that displayed a recent photograph and signature. The
bulletin stated that a government-issued identification document, student
identification, or a confirmation-of-identity letter obtained from the registrant’s
educational institution were acceptable forms of identification, but the bulletin
prohibited the use of any expired identification, a Social Security card, a temporary
identification document, or an employee identification card.
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The bulletin stated that, if the registrant could not present the required
identification, the registrant would not be admitted to the exam and would forfeit
the test and registration fees. If a registrant presented unacceptable identification,
but was admitted to the exam, an employee at the test center could consider the
identification “questionable” and either dismiss the registrant from the exam or
submit the issue for further review by filing a supervisor’s irregularity report. If it
identified a problem with the identification, the Testing Service reserved the option
either to decline to score the test or cancel the test score.
For his admission to the first part of the Praxis II exam in November 2004,
Sims presented an expired Alabama temporary driver’s license and an attorney
identification card issued by a federal district court in Pennsylvania. Camille
Hassenplug admitted Sims into the exam, but told Sims that his test might not be
scored. Hassenplug filed an irregularity report. Sims wrote on his exam that he
agreed to comply with the conditions stated in the bulletin. Patricia Taylor later
spoke with Sims on the telephone and eventually agreed to accept Sims’s expired
Alabama driver’s license and release Sims’s score.
Sims sat for the Praxis I exam in January 2005. Sims alleged that
Hassenplug did not require him to produce any identification for admission to the
Praxis I examination, but Hassenplug alleged that Sims did not present acceptable
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identification. Hassenplug filed a report that stated Sims did not produce proper
identification, but was admitted because Hassenplug remembered him from the
earlier Praxis II exam and Sims told her that the Testing Service had released his
test score for the first part of the Praxis II exam. Sims again wrote on his exam
answer sheet that he agreed to the comply with the conditions of the bulletin.
When Sims registered for the second part of the Praxis II exam, Hassenplug
reminded Sims to bring acceptable identification to the examination. Sims’s
admission ticket stated that the Testing Service would accept those documents
listed in the bulletin as “primary identification documents.” For his admission to
the second part of the Praxis II exam, Sims presented several identification
documents: his birth certificate, an expired Alabama temporary driver’s license, a
Social Security card, the attorney identification card, and his employee
identification cards from the Muscogee County School District and Carver High
School. Hassenplug told Sims that his identification documents were
unacceptable. Although Hassenplug had been instructed not to admit Sims into the
exam if he did not present proper identification, she later admitted Sims at the
instruction of her supervisors after Sims became “threatening.” Sims wrote on his
exam, “I hereby agree to the conditions set forth in the Registration Bulletin and
certify that I am the person whose name and address appear on this answer sheet.”
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Taylor later mailed a letter to Sims that stated that the Testing Service was
considering whether to cancel Sims’s test score because he did not provide
acceptable identification, instructed Sims to mail “a clear copy of [his] passport or
other positive identification” for review, and noted that Sims’s score would be
canceled if he did not timely respond. Sims promptly responded by letter,
submitted copies of the same documents presented at the last exam, and asserted
that the documents had been “accepted and approved” for the earlier tests. Taylor
replied that the documents “did not resolve” the matter, explained that Sims’s test
score was “on hold,” and granted Sims until December 11, 2005, “to submit proper
identification.” After Sims failed to submit any other identification, the Testing
Service refused to release Sims’s score for the second part of the Praxis II exam.
After Sims filed his complaint, Sims and the individual defendants submitted
motions for judgment on the pleadings and for summary judgment. The district
court dismissed several of Sims’s federal and state law claims and granted several
of the defendants’ motions for summary judgment. Sims later voluntarily
dismissed his remaining claims with prejudice, except the claim for breach of
contract against the Testing Service.
After discovery, the Testing Service moved for summary judgment. The
Testing Service argued that Sims failed to satisfy a condition precedent of the
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contract because he did not present acceptable identification for the second part of
the Praxis II exam, the Testing Service exercised its contractual right to hold
Sims’s score, and Sims did not suffer damages because he failed the exam. Sims
responded that he had presented acceptable primary identification, the Testing
Service waived its right to require acceptable identification, and he suffered
irreparable damage to his teaching career when the Testing Service refused to
release the score for his last exam.
The district court granted summary judgment in favor of the Testing Service
and denied Sims’s motion for summary judgment. The district court concluded
that the agreement between Sims and the Testing Service, “[a]ssuming . . . a
contract existed,” required Sims to present acceptable identification and Sims
failed to satisfy that condition.
II. STANDARD OF REVIEW
We review a grant of summary judgment de novo and review the evidence in
the light most favorable to the nonmoving party. Thomas v. Cooper Lighting, Inc.,
506 F.3d 1361, 1363 (11th Cir. 2007). Summary judgment is appropriate when
there exists no genuine issue of material fact and the moving party is thereby
entitled to judgment as a matter of law.
Id. (quoting Fed. R. Civ. P. 56(c)).
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III. DISCUSSION
Sims challenges the summary judgment in favor of the Testing Service on
three grounds. First, Sims contends that the Testing Service waived its contractual
requirement for Sims to present “acceptable and valid” identification to be
admitted into the Praxis exam. Second, Sims argues that his attorney identification
card qualified as an acceptable form of identification. Third, Sims contends that he
presented evidence of damages. We reject Sims’s first two arguments and need not
address his third argument.
A. The Record Does Not Establish That the Testing Service
Waived the Identification Requirement.
Under Georgia law, “[w]here the terms of a contract are plain and
unambiguous, the construction of the contract is a question of law” and is
“particularly appropriate for summary adjudication.” Garvin v. Smith, 510 S.E.2d
863, 864 (Ga. Ct. App. 1999); see also Ga. Code Ann. § 13-2-1. “If the terms used
are clear and unambiguous[,] they are to be taken and understood in their plain,
ordinary, and popular sense.” Imaging Sys. Int’l, Inc. v. Magnetic Resonance Plus,
Inc.,
527 S.E.2d 609, 610–11 (Ga. Ct. App. 2000) (quoting (alteration in original)
(internal quotation marks omitted); see also Ga. Code Ann. § 13-2-2(2) (“[w]ords
generally bear their usual and common signification”). A party may waive, by its
actions or conduct, a contractual provision for its benefit. Kusuma v. Metametrix,
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Inc., 381 S.E.2d 322, 324 (Ga. Ct. App. 1989). To determine if a waiver occurred,
the court considers whether “the conduct of both parties intended to result in the
‘mutual disregard’ of, or ‘mutual departure’ from the contract terms.”
Id. at 323
(emphasis omitted).
Although the district court did not address Sims’s waiver argument, the
record establishes that no waiver occurred. The record contains no evidence that
the Testing Service unilaterally waived nor did the Testing Service and Sims
mutually agree to dispense with Sims’s duty to present “acceptable and valid”
identification for the second part of the Praxis II exam. Sims agreed to the terms of
the bulletin for the second part of the Praxis II exam, and the Testing Service did
not waive those terms.
B. Sims’s Attorney Identification Card Did Not Qualify as a “National
Identification” Under the Terms of the Bulletin.
Sims contends that the bulletin did not specifically define the terms “state
identification” and “national identification” and there was an ambiguity about
whether his attorney identification card was acceptable as one of these primary
forms of identification. We disagree. Sims’s attorney identification card displayed
his picture and signature from 28 years earlier and stated that Sims was a member
of the United States District Court for the Eastern District of Pennsylvania and
could use the card to enter the federal courthouse in Philadelphia. Sims admitted
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that the attorney identification card was limited to use in the issuing court. Based
on the appearance of the card and its limited use, the district court correctly
concluded that the attorney identification card did not qualify as either a state or
national identification. An investigation also revealed that Sims’s attorney
identification card was no longer valid, and the bulletin stated that “any expired
ID” constituted an “unacceptable identification document.”
Because Sims’s attorney identification card did not qualify as an “acceptable
primary identification document,” the Testing Service had a contractual right,
under the terms in the bulletin, to refuse to release Sims’s test score. The bulletin
stated, “When, in ETS’s judgment, or the judgment of the test center personnel,
there is a discrepancy in a test taker’s identification, the test taker may be
dismissed from the test center. In addition, ETS may decline to score the test, or
cancel the test score.” The record establishes that there was no genuine issue of
material fact to support Sims’s complaint that the Testing Service breached any
contract with Sims.
IV. CONCLUSION
The summary judgment in favor of the Testing Service is AFFIRMED.
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