Lyman S. Hopkins v. St. Lucie County School Board ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11252 ELEVENTH CIRCUIT
Non-Argument Calendar OCTOBER 13, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:09-cv-14274-JEM
LYMAN S. HOPKINS,
lllllllllllllllllllllPlaintiff - Appellant,
versus
SAINT LUCIE COUNTY SCHOOL BOARD,
HELEN ROBERTS,
Official and Individual Capacities,
MICHAEL LANNON,
Official and Individual Capacities,
CEDRIC GIBSON,
Official Capacity,
lllllllllllllllllllllDefendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(October 13, 2010)
Before BLACK, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Lyman Hopkins appeals pro se the district court’s dismissal of his
discrimination and retaliation claims, brought under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e-2(a), 3 (“Title VII”), 42 U.S.C. § 1981, and 42
U.S.C. § 1983. In August 2007 Hopkins began working for the St. Lucie County
School System as a Spanish teacher. Florida law provides that new teachers serve
for an initial probationary period of 97 days, during which time they may be let go
with or without cause. Fla. Stat. § 1012.33(1)(b). In September 2007, well within
his probationary period, Hopkins was fired.
In August 2009 Hopkins filed a complaint in district court against the St.
Lucie School Board as well as several school administrators. Hopkins’ central
claim appears to be that he was the victim of race and gender discrimination as well
as retaliation both during and after his employment. The defendants moved to
dismiss the complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6), or
to compel Hopkins to file a more definite statement. After Hopkins filed a
response to the defendants’ motion, the matter was referred to a magistrate judge,
who issued a report recommending that the district court dismiss Hopkins’
complaint without leave to amend. The district court adopted the magistrate
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judge’s report and recommendation and granted the defendants’ motion to dismiss.
Hopkins’ pro se briefs to this court contend that the district court improperly
dismissed his claims.1
We review de novo the district court's grant of a motion to dismiss under
Rule 12(b)(6) for failure to state a claim, accepting the allegations in the complaint
as true and construing them in the light most favorable to the plaintiff. Hill v.
White, 321 F.3d at 1335 (11th Cir. 2003). While the pleadings of pro se litigants
are “liberally construed,” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th
Cir. 1998), they must still comply with procedural rules governing the proper form
of pleadings. McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 1984
(1993). To properly state a claim, a complaint must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ.
P. 8(a)(2). The Supreme Court has recently clarified that while the pleading
standard of Rule 8 “does not require ‘detailed factual allegations,’” it does demand
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Hopkins’ brief and reply brief raise a variety of other issues, none of which are
appropriately before us. His argument that he should have been granted leave to amend his
complaint was abandoned when he failed to raise it in opposing the defendants’ motion to
dismiss or in responding to the magistrate judge’s recommendation of dismissal. And we will
not consider his claims that he was denied “meaningful access to courts” because he raises it for
the first time on appeal. See Blue Cross and Blue Shield of Ala. v. Weitz, 913 F.2d 1544,
1549–51 (11th Cir. 1990). Finally, to the extent he raises new arguments for the first time in his
reply brief, those arguments are deemed waived. In re Egidi, 571 F.3d 1156, 1163 (11th Cir.
2009).
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“more than an un-adorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft v. Iqbal, 556 U.S. ___, 129 S. Ct. 1937, 1949 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 129 S. Ct. 1955 (2007)). More to
the point, the court explained that “to survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570).
I.
We construe Hopkins’ complaint as alleging claims for discrimination, and
more specifically disparate treatment, under Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e-2(a), 42 U.S.C. § 1981, and 42 U.S.C. § 1983. To
prevail under Title VII, evidence must be presented which is “sufficient to create an
inference of discrimination.” Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir.
1997). A plaintiff can establish that inference by showing: (1) he was a member of
a protected class; (2) he was qualified for the job; (3) he suffered an adverse
employment action; and (4) his employer treated similarly situated employees
outside the protected class more favorably. Crawford v. Carroll, 529 F.3d 961, 970
(11th Cir. 2008). The analysis of a disparate treatment claim is the same whether
that claim is brought under Title VII, § 1981, or § 1983. Rice-Lamar v. City of Ft.
Lauderdale, Fla., 232 F.3d 836, 843 n.11 (11th Cir. 2000).
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We note at the outset that while Hopkins has pursued this litigation pro se
from the start, he is not unfamiliar with procedures of the federal court system,
having brought similar actions against two of his prior employers in another state.
See Hopkins v. Elizabeth Board of Education, No. Civ.A.03-5418 JAG, 2005 WL
1899333 (D.N.J. Aug. 5, 2005). But despite his experience with drafting
pleadings, he has failed to establish a prima facie case of disparate treatment
against either the St. Lucie School Board or the administrators. None of his filings
allege facts to support the fourth requirement of such a claim¯that the St. Lucie
School Board or the individual defendants treated similarly situated employees
who were not members of his protected class differently.
The complaint alleges that Hopkins, who is an African-American male, was
assigned to be a “floating teacher,” and in this role he moved from classroom to
classroom to teach Spanish, instead of being assigned to only one classroom for the
entire day. This assignment as a “floating teacher” seems to be the motivating
factor behind the complaint, which exhaustively details the various inconveniences
and petty difficulties he encountered during his brief employment. For example, it
alleges that: Hopkins was required to teach in a classroom while another teacher
was present; he was not immediately issued a laptop computer carrying bag “with
emblazoned school insignia” and had to use his own bag for several days; he
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objected to the assigned textbook; a fellow teacher would not share bulletin board
space; another black male teacher commented on how few black males taught
Spanish; students were occasionally rude and disruptive; some classes were filled
to capacity; his last class was interrupted by the afternoon announcements; and so
on, and so on. Most of these inconveniences were the result of actions by third
parties, such as fellow teachers and students, instead of actions by the School
Board or the individual defendants. And as for his assignment as a floating
teacher, Hopkins himself admits that the school had other floating teachers, all of
whom were female and none of whom were African-American. He provides no
facts that would allow a court to infer that the school district treated those outside
the class of African-American males more favorably. Instead, his complaint lists
conclusory allegations of discrimination and fails to provide, as required by
Twombly and Iqbal, the “sufficient factual matter” to establish a prima facie case.
II.
Hopkins’ claims of retaliation are similarly deficient. We understand his
complaint to allege that the School Board and district administrators retaliated
against him both by firing him and by not providing him with job references. The
complaint, however, fails to state a prima facie case of retaliation on either of those
grounds.
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To establish a prima facie case of retaliation under Title VII, a plaintiff must
show “(1) that [he] engaged in statutorily protected expression; (2) that [he]
suffered a[] [materially] adverse [] action; and (3) that there is some causal relation
between the two events.”2 McCann v. Tillman, 526 F.3d 1370, 1375 (11th Cir.
2008) (laying out what constitutes a prima facie case of retaliation); Burlington
Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 2415
(2006) (clarifying what types of “actions” establish a prima facie case of retaliation
under Title VII).
As for Hopkins’ claim that the defendants retaliated against him by firing
him, his complaint fails to state the first requirement of such a claim, because it
does not allege sufficient facts to establish that he was engaged in a statutorily
protected form of expression when he was fired in October 2007. In April 2008
Hopkins filed an employment complaint against the School Board with the Florida
Commission on Human Relations, and in June 2008 he filed a formal complaint
with the Equal Employment Opportunity Commission, both of which are
expressions protected from retaliation under Title VII. See EEOC v Total System
Services, Inc., 221 F.3d 1171, 1174 (11th Cir. 2000). But both of those
2
Section 1981 also prohibits retaliation, and the elements required to establish a claim are
the same as those required under Title VII. See Goldsmith v. Bagby Elevator Co., 513 F.3d
1261, 1277 (11th Cir. 2008).
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administrative complaints were filed months after the school district fired him.
Because Hopkins has alleged no other facts that suggest he was engaged in a
statutorily protected form of expression, his conclusory claim of “retaliatory
discharge” is insufficient to support a prima facie case of retaliation.
As for his claim that the defendants retaliated against him by failing to
provide him with job references, his administrative complaints to the Florida
Commission on Human Relations and the EEOC arguably satisfy the first
requirement for a claim. But even assuming Hopkins could also satisfy the second
requirement by showing that the defendants’ failure to provide references
constituted a “materially adverse action,” he has alleged no facts that would
suggest a causal connection between his administrative complaints and the
defendants’ actions. His claim thus founders on the third requirement to establish a
prima facie case of retaliation and for that reason fails to meet Iqbal’s requirement
that a complaint “must contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at ___, 129 S.Ct. at
1949 (quoting Twombly, 550 U.S. at 570).
The frustrations that Hopkins has felt in his short career as a teacher may
merit sympathy, but they do not merit a finding of a prima facie case of
discrimination or retaliation.
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AFFIRMED.
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