Filed: Jan. 15, 2013
Latest Update: Feb. 12, 2020
Summary: Case: 12-12126 Date Filed: 01/15/2013 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-12126 Non-Argument Calendar _ D.C. Docket No. 1:07-cv-00202-WLS EARLENE HOLMES, Plaintiff-Appellant, versus STATE OF GEORGIA, on behalf of Governor, DON STRICKLAND, CHRISTA COURSON, SHAWN CORLEY, COMMISSIONER, Defendants-Appellees, ROBERT COOLEY, Defendant. _ Appeal from the United States District Court for the Middle District of Georgia _ (January 15, 2013)
Summary: Case: 12-12126 Date Filed: 01/15/2013 Page: 1 of 9 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-12126 Non-Argument Calendar _ D.C. Docket No. 1:07-cv-00202-WLS EARLENE HOLMES, Plaintiff-Appellant, versus STATE OF GEORGIA, on behalf of Governor, DON STRICKLAND, CHRISTA COURSON, SHAWN CORLEY, COMMISSIONER, Defendants-Appellees, ROBERT COOLEY, Defendant. _ Appeal from the United States District Court for the Middle District of Georgia _ (January 15, 2013) ..
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Case: 12-12126 Date Filed: 01/15/2013 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12126
Non-Argument Calendar
________________________
D.C. Docket No. 1:07-cv-00202-WLS
EARLENE HOLMES,
Plaintiff-Appellant,
versus
STATE OF GEORGIA,
on behalf of Governor,
DON STRICKLAND,
CHRISTA COURSON,
SHAWN CORLEY,
COMMISSIONER,
Defendants-Appellees,
ROBERT COOLEY,
Defendant.
__________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(January 15, 2013)
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Before TJOFLAT, MARCHS and KRAVITCH, Circuit Judges.
PER CURIAM:
After Earlene Holmes, a black employee of the Georgia Department of
Corrections (“DOC”), was discharged due to poor work performance, she sued the
DOC (and several of its employees) under Title VII of the Civil Rights Act (“Title
VII”), 42 U.S.C. §§ 1981 and 1983 (for the denial of her Fourteenth Amendment
right to equal protection of the law), the Equal Pay Act (“EPA”), the Family
Medical Leave Act (“FMLA”), and the Georgia Whistleblower Act. All of these
claims were based, at least in part, on allegations of race and gender
discrimination; her discharge was in retaliation for her engaging in legally
protected activity. The District Court granted the defendants summary judgment,
and she now appeals. We affirm.
In her brief on appeal, Holmes argues that the District Court erred (1) in
denying her motion for appointment of counsel; (2) in granting the defendants
summary judgment on her race discrimination and retaliation claims under Title
VII; and (3) in determining that qualified immunity barred her claims (against the
employee defendants) of race discrimination and retaliation under §§ 1981 and
1983.
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As an initial matter, we hold that Holmes has abandoned any claims (1)
under the EPA, FMLA, the Fourteenth Amendment, and Georgia Whistleblower
Act, (2) of hostile work environment, or (3) of gender discrimination because she
has not presented these claims in her brief. See Timson v. Sampson, 518 F.3d
870, 874 (11th Cir. 2008) (“[I]ssues not briefed on appeal by a pro se litigant are
deemed abandoned.”). Moreover, we will not review any argument she makes
with respect to the Georgia Department of Labor’s findings because the findings
were not presented to the District Court. Access Now, Inc. v. Southwest Airlines
Co.,
385 F.3d 1324, 1331-32 (11th Cir. 2004).
I. Appointment of Counsel
We review the District Court’s denial of the appointment of counsel for
abuse of discretion. See Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999)
(addressing the district court’s denial of a motion for appointment of counsel in a
§ 1983 action). In deciding whether to appoint counsel, a district court “has broad
discretion . . . and should appoint counsel only in exceptional circumstances.”
Bass, 170 F.3d at 1320. The following factors may be considered when
determining whether “exceptional circumstances” exist: (1) the type and
complexity of the case; (2) whether the indigent requesting the appointment is
capable of adequately presenting her case; (3) whether the indigent is in a position
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to adequately investigate the case; and (4) whether the evidence will consist in
large part of incidents the indigent witnessed herself. Fowler v. Jones, 899 F.2d
1088, 1096 (11th Cir. 1990).
We find no abuse of discretion here. This case presented no exceptional
circumstances. The issues were straightforward, and Holmes had personal
knowledge of the facts underlying her allegations. See Fowler, 899 F.2d at 1096
(finding no exceptional circumstances where the claims are relatively
straightforward and based on incidents personally experienced by the plaintiff, and
where the plaintiff was capable of adequately representing himself in the matter).
II. Title VII
We review a district court’s grant of summary judgment de novo. Holloman
v. Mail-Well Corp., 443 F.3d 832, 836 (11th Cir. 2006). Summary judgment is
appropriate when the evidence, viewed in the light most favorable to the
nonmoving party, presents no genuine issue of material fact and compels judgment
as a matter of law. Fed. R. Civ. P. 56(a);
Holloman, 443 F.3d at 836.
Title VII makes it unlawful for an employer “to . . . discharge any
individual, or otherwise discriminate against any individual with respect to [her]
compensation, terms, conditions, or privileges of employment, because of such an
individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1). An individual is not an
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employer as defined by Title VII; therefore, relief under Title VII is available only
against the employer and not against individual employees, here the DOC
employees Holmes sued. Dearth v. Collins, 441 F.3d 931, 933 (11th Cir. 2006).
Holmes does not allege that she presented direct evidence of discrimination
to the District Court. Rather, she relied on circumstantial evidence to prove intent
to discriminate. We therefore consider her allegations under the model of proof
set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04,
93 S. Ct.
1817, 1824-25,
36 L. Ed. 2d 668 (1973). Maynard v. Bd. of Regents of the Div. of
Univs. of the Fla. Dep’t of Educ.,
342 F.3d 1281, 1289 (11th Cir. 2003)
(addressing race discrimination under Title VII). To prevail on a
race-discrimination claim based on circumstantial evidence, a plaintiff establishes
a prima facie case by showing that she was: (1) a member of a protected class;
(2) qualified for her current position; (3) subject to an adverse employment action;
and (4) either replaced by someone outside the protected group or treated less
favorably than any similarly situated employee outside her protected group.
Id.
Under McDonnell Douglas, if the plaintiff establishes a prima facie case,
the burden shifts to the employer to articulate a legitimate, nondiscriminatory
reason for its action. If it does so, the plaintiff, to prevail, must demonstrate that
the employer’s proffered reason is merely pretextual. McDonnell Douglas, 411
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U.S. at 802,
804, 93 S. Ct. at 1824–25. That is, the plaintiff must demonstrate
“such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could find them unworthy of credence.” Jackson v. Ala.
State Tenure Comm’n,
405 F.3d 1276, 1289 (11th Cir. 2005). In reviewing a
judgment adverse to the plaintiff in a Title VII case, we are mindful that we do not
sit as a “super personnel department”; we will not second-guess the business
judgment of the employer. Chapman v. AI Transp.,
229 F.3d 1012, 1030 (11th
Cir. 2000) (citations omitted) (en banc). Indeed, we are “not in the business of
adjudging whether employment decisions are prudent or fair. Instead, our sole
concern is whether unlawful discriminatory animus motivates a challenged
employment decision.” Damon v. Fleming Supermarkets of Fla., Inc.,
196 F.3d
1354, 1361 (11th Cir.1999). As such, the inquiry into whether an employer’s
proffered reasons were pretexts centers on the employer’s beliefs, not the beliefs
of the employee. Alvarez v. Royal Atl. Developers, Inc.,
610 F.3d 1253, 1266
(11th Cir. 2010).
A retaliation claim based on circumstantial evidence is also analyzed
according to the burden-shifting McDonnell Douglas framework. See Goldsmith
v. City of Artmore, 996 F.2d 1155, 1162-63 (11th Cir. 1993). To prevail, the
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plaintiff must establish a prima facie case by showing (1) statutorily protected
expression, (2) adverse employment action, and (3) a causal link between the
protected expression and the adverse action. Id. at 1163. If the plaintiff
establishes a prima facie case, and the employer proffers a legitimate,
nondiscriminatory reason for its action, the plaintiff must then show that the
reason is a pretext for retaliation.
Id.
We conclude that summary judgment was appropriate with respect to the
Title VII claims. The individual defendants are not liable under Title VII because
they were not Holmes’s employer. See
Dearth, 441 F.3d at 933. The State of
Georgia, which includes the DOC, however, is subject to Title VII since it was her
employer. See
id.
Even if Holmes could establish a prima facie case of race discrimination,
the DOC presented a legitimate, nondiscriminatory reason for its action, and
Holmes presented no evidence to show that such reason was pretextual. Holmes
was terminated due to poor work performance, a decision fully supported by DOC
documents. This evidence showed that Holmes failed to pull enough food for the
detainees, follow instructions regarding an email about high food costs, follow the
work schedule, complete paperwork, and present the Daily Food Packets to her
supervisor for review. She was suspended twice before eventually being
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terminated based on continued poor work performance. In short, she failed to
demonstrate that the DOC’s legitimate, nondiscriminatory reason for her
termination was a pretext for racial discrimination.
III. 42 U.S.C. §§ 1981 and 1983
The District Court held that the individual defendants were entitled to
qualified immunity on the claims brought under § 1981 and 1983. We review its
decision de novo. Hoyt v. Hooks, 672 F.3d 972, 977 (11th Cir. 2012). Qualified
immunity protects government officials performing discretionary functions from
liability in their individual capacity if their conduct “does not violate clearly
established statutory or constitutional rights of which a reasonable person would
have known.” Hope v. Pelzer,
536 U.S. 730, 739,
122 S. Ct. 2508, 2515,
153
L. Ed. 2d 666 (2002) (quotation omitted). Regarding discretionary functions, the
inquiry concerns whether the acts in question are of a type that fell within the
defendant’s job responsibilities, and asks whether the defendant was performing a
legitimate job-related function through means that were within his or her power to
utilize. Holloman ex rel. Holloman v. Harland,
370 F.3d 1252, 1265-66 (11th Cir.
2004). Once a defendant establishes this, the plaintiff has the burden of
establishing that qualified immunity is not appropriate. Vinyard v. Wilson,
311
F.3d 1340, 1346 (11th Cir. 2002). She must show (1) that the defendant infringed
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a right protected by a statute or the constitution, and (2) that such right was clearly
established at the time of the alleged violation. Holloman, 370 F.3d at 1264.
The record supports the District Court’s determination that the individual
defendants were entitled to qualified immunity. They were all DOC officials; they
were acted within their discretion when they suspended Holmes and subsequently
fired her because they were performing legitimate job-related functions as her
superiors. Holloman, 370 F.3d at 1265-66. Moreover, their behavior did “not
violate clearly established statutory or constitutional rights of which a reasonable
person would have known.”
Hope, 536 U.S. at 739, 122 S.Ct. at 2515. Further,
Holmes failed to establish that the defendants violated any constitutional right
against racial discrimination under § 1981 or § 1983.
Holloman, 370 F.3d at
1264. As discussed above, evidence demonstrates that Holmes was fired due to
her poor work performance, and that her termination was not motivated by her
race.
For the foregoing reasons, the judgement of the District Court is
AFFIRMED.
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