Xingzhong Shi v. Trent Montgomery

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14837
Non-Argument Calendar
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D.C. Docket No. 5:13-cv-00327-JHE
XINGZHONG SHI,
Frank,
Plaintiff-Appellant,
versus
TRENT MONTGOMERY,
DENIAL WIMS,
ANDREW HUGINE,
ALABAMA A&M UNIVERSITY BOARD OF TRUSTEES,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(February 10, 2017)
Before MARCUS, JORDAN and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Xingzhong Shi, a former associate professor at Alabama A&M University
(“the University”), appeals the district court’s grant of summary judgment in his
suit alleging employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2(a)(1), and violations of his
constitutional rights. On appeal, he argues that the district court erred by granting
summary judgment against him on his claims that: (1) Dr. Trent Montgomery,
former dean of the School of Engineering and Technology at the University, and
Dr. Daniel Wims, provost and vice president of academic affairs, discriminated
against him on the basis of his race, Asian, and national origin, Chinese, by
terminating his employment; (2) the University violated Title VII by placing him
on administrative leave and terminating him; and (3) Wims and Montgomery
deprived him of his constitutional rights while acting under color of law, in
violation of 42 U.S.C. § 1983. After careful review, we affirm.
We review de novo the district court’s grant of summary judgment, Weeks
v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002), which, in this case,
was resolved by consent by a magistrate judge. Summary judgment is appropriate
when the evidence, viewed in the light most favorable to the nonmoving party, id.,presents no genuine dispute as to any material fact and compels judgment as a
matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-
23 (1986). “The mere existence of a scintilla of evidence in support of the [non-
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moving party’s] position will be insufficient; there must be evidence on which the
jury could reasonably find for the [non-movant].” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 252 (1986). While we construe pro se briefs liberally, a pro se
litigant who offers no substantive argument on an issue in his initial brief abandons
that issue on appeal. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
First, we find no merit to Shi’s argument that the district court erred by
dismissing his Title VII claims against Montgomery and Wims. We have held that
the relief granted under Title VII is against the employer, not against individual
employees whose actions would constitute a violation. Dearth v. Collins, 441 F.3d
931, 933 (11th Cir. 2006). Supervisory employees are only proper defendants
under Title VII in their capacity as agents of the employer, not as individuals.
Hinson v. Clinch Cty. Bd. of Educ., 231 F.3d 821, 827 (11th Cir. 2000).
Shi generally argues on appeal that Montgomery discriminated against him
by appointing Venkata Atluri as interim chair of the Computer Science department
and that Wims discriminated against him by terminating his employment. But Shi
does not address the district court’s conclusion that Title VII does not provide for
individual liability. Since he does not raise the issue of individual liability on
appeal -- the ground the district court relied on to reject this claim -- he has
abandoned his challenge to this claim. Timson, 518 F.3d at 874. And in any
event, because Title VII does not provide relief against individual employees,
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summary judgment was properly granted on the Title VII claims against Wims and
Montgomery in their individual capacities. Dearth, 441 F.3d at 933.
Next, we are unpersuaded by Shi’s argument that the district court erred by
granting summary judgment on his claim that the University violated Title VII by
placing him on administrative leave and terminating him. For starters, a person
seeking to file a Title VII lawsuit must first file a timely charge with the EEOC
alleging a Title VII violation and exhaust all remedies provided by the EEOC. 42
U.S.C. § 2000e-5; Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir.
2001). Charges must be in writing, be under oath or affirmation, and contain the
information and be in the form the EEOC requires. Id. § 2000e-5(b); 29 C.F.R. §
1601.3(a) (2000). The verification requirement is mandatory, and the EEOC is not
obligated to inform a claimant of deficiencies in a charge. See Vason v. City of
Montgomery, Ala., 240 F.3d 905, 907 (11th Cir. 2001).
While a claimant may fill out, and submit, an intake questionnaire prior to,
and sometimes in lieu of a charge, the general rule is that the filing will not be
deemed tantamount to a charge absent exceptional circumstances. See, e.g.,
Wilkerson, 270 F.3d at 1317 (holding verified questionnaire sufficient to satisfy
the charge requirement of Title VII’s statute of limitations); Pijnenburg v. West
Ga. Health Sys., Inc., 255 F.3d 1304, 1307 (11th Cir. 2001) (holding that
unverified intake questionnaire did not satisfy statutory requirements for an
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administrative “charge”). The applicable period for filing an EEOC charge of
discrimination does not begin to run until the employee receives unequivocal
notice of an adverse employment decision. Stewart v. Booker T. Washington Ins.,
232 F.3d 844, 849 (11th Cir. 2000). The plaintiff has the burden of establishing
that he filed a timely charge of discrimination. See Jackson v. Seaboard Coast
Line R. Co., 678 F.2d 992, 1004-10 (11th Cir. 1982).
Whether a discriminatory act takes place in a “deferral” or “non-deferral”
state affects the timeliness of the charge filed with the EEOC. See Maynard v.
Pneumatic Prod. Corp., 256 F.3d 1259, 1262-63 (11th Cir. 2001). A “deferral”
state is a state that has a law banning discrimination in employment and that has a
state entity authorized to grant or deny relief for such discrimination. Id. Alabama
is a non-deferral state. Ledbetter v. Goodyear Tire & Rubber Co., 421 F.3d 1169,
1178 (11th Cir. 2005), affirmed by, 127 S. Ct. 2162 (2007), superseded by statute
on other grounds, Pub. L. No. 111-2, 123 Stat. 5 (2009). For a charge to be timely
in non-deferral states, it must be filed within 180 days of the last discriminatory
act. 42 U.S.C. § 2000e-5(e)(1); Wilkerson, 270 F.3d at 1317.
In reviewing Title VII claims based on circumstantial evidence, federal
courts often use the three-step burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981). Reeves v. Sanderson Plumbing Prods., 530
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U.S. 133, 141-42 (2000). This framework requires a plaintiff first to establish a
prima facie case of discrimination. To do so for a discriminatory discharge claim,
a plaintiff may show he: (1) was a member of a protected class, (2) was qualified
for the job, (3) suffered an adverse employment action, and (4) was replaced by
someone outside the protected class. Cuddeback v. Fla. of Educ., 381 F.3d 1230,
1235 (11th Cir. 2004). Alternatively, the plaintiff may show he (1) was a member
of the protected class, (2) was fired or suspended, and (3) other employees not in
the protected class who had comparable or lesser qualifications were retained. Nix
v. WLCY Radio/Rahall Commc’ns, 738 F.2d 1181, 1185 (11th Cir. 1984). As
another alternative, the plaintiff may show: (1) he was a member of a protected
class; (2) he was qualified for the position; and (3) the misconduct for which he
was discharged was nearly identical to misconduct engaged in by another
employee, outside the protected class, who was retained. Id. Under the third
formulation, the plaintiff may establish a prima facie case even if his replacement
was also a member of the same protected class. Id. If a plaintiff alleges he was
disciplined in a discriminatory manner compared to a similarly-situated employee,
he must show that the other employee engaged in nearly identical misconduct, so
that courts do not second-guess employers’ reasonable decisions or confuse apples
with oranges. Rioux v. City of Atlanta, 520 F.3d 1269, 1280 (11th Cir. 2008).
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By making a prima facie case, a plaintiff creates a rebuttable presumption
that the employer has discriminated against him. EEOC v. Joe’s Stone Crabs, Inc.,
296 F.3d 1265, 1272 (11th Cir. 2002). The burden then shifts to the employer,
which can rebut this presumption by proffering a legitimate, non-discriminatory
reason for its employment decision. Id. If the employer does so, the burden shifts
back to the plaintiff to show that the employer’s proffered reason was a pretext for
discrimination. Id. at 1273. An employee’s violation of a company’s work rules
may constitute a legitimate, non-discriminatory reason for termination. See Sparks
v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1563 (11th Cir. 1987).
Ultimately, an employer’s burden to articulate a non-discriminatory reason
for failing to promote an employee is a burden of production, not of persuasion.
Burdine, 450 U.S. at 254; Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1142
(11th Cir. 1983) (describing this burden as “exceedingly light”). So long as the
employer articulates a clear and reasonably specific non-discriminatory basis for
its actions, it discharges its burden of production. St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 509-11 (1993). This means that the inference of discrimination
drops out of the case entirely, and the plaintiff has the opportunity to show by a
preponderance of the evidence that the proffered reasons were pretextual. Id.In Title VII cases where pretext is an issue, the factfinder must ask if the
employer’s proffered reasons were a “coverup” for a discriminatory decision.
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Rojas v. Fla., 285 F.3d 1339, 1342 (11th Cir. 2002) (quotation omitted). We do
not answer whether employment decisions were prudent or fair, but only whether
unlawful discriminatory animus motivated a challenged employment decision.
Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir.
1999). On the totality of the evidence, a plaintiff must cast sufficient doubt on the
defendant’s proffered non-discriminatory reasons to allow a reasonable factfinder
to determine that the defendant’s proffered legitimate reasons did not actually
motivate its conduct. Silvera v. Orange Cty. Sch. Bd., 244 F.3d 1253, 1258 (11th
Cir. 2001). We consider whether the plaintiff’s showing of weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action would allow a reasonable factfinder to
find them unworthy of credence. Combs v. Plantation Patterns, Meadowcraft, Inc.,
106 F.3d 1519, 1538 (11th Cir. 1997). A subjective reason for an employer’s
action -- like poor interview performance -- can be as legitimate as any other
reason. Chapman v. AI Transport, 229 F.3d 1012, 1033 (11th Cir. 2000) (en banc).
If the proffered reason is one that might motivate a reasonable employer, the
plaintiff must meet the reason proffered “head on and rebut it.” Id. at 1030. On
the other hand, it is permissible for the factfinder to infer the ultimate fact of
discrimination from the falsity of the employer’s explanation. Hinson, 231 F.3d at
831. If the employer’s asserted justification is that the employee violated a work
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rule, the employee must prove pretext by showing either that he did not violate the
work rule or that, if he did, other employees not within the protected class who
engaged in similar acts were not similarly treated. Sparks, 830 F.2d at 1563.
Here, the district court correctly granted summary judgment on Shi’s Title
VII claims based on his claims of pre-2012 discrimination. As the record shows,
Shi filed an EEOC charge concerning these claims on March 23, 2012. Shi has
conceded that his EEOC charge was untimely as to the claims concerning the
University’s decisions to not place him in a tenure track position in 2007 and to not
appoint him as interim chair of the Computer Science department in 2010. As for
the claim concerning his administrative leave, he learned about the leave on
August 24, 2011, but did not file his EEOC charge until 211 days later, well after
the 180-day limit. In addition, the earlier intake questionnaire he filed was not
made under oath or affirmation, and, therefore, was not a charge within the
statutory requirements. 42 U.S.C. § 2000e-5(b); Pijnenburg, 255 F.3d at 1307.
Because Shi’s EEOC charge was not filed within 180 days after the 2007, 2010
and 2011 decisions, the district court correctly concluded that Shi did not exhaust
his administrative remedies for these claims. Wilkerson, 270 F.3d at 1317.
Shi also failed to state a prima facie case of discrimination concerning his
termination. Notably, he did not allege that someone outside his protected class
replaced him or that someone who committed similar misconduct was retained.
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Cuddeback, 381 F.3d at 1235; Nix, 738 F.2d at 1185. He repeatedly named as a
comparator Jay Gangasani, whom he said was not within the protected class and
was retained. But the only evidence Shi submitted about Gangasani was his own
questions in the interrogatories, which did not include any answers that could be
considered evidence to support the claim that Gangasani was a similarly-situated
employee. Without evidence of Gangasani’s race, national origin, employment
status, or qualifications, Shi did not show that he was replaced by someone outside
the protected class, that employees outside the protected class were treated
differently, or that an employee outside the protected class who engaged in nearly
identical misconduct was not terminated. Cuddeback, 381 F3d at 1235; Nix, 738
F.2d at 1185. He therefore failed to establish a prima facie case of discrimination.
But even if Shi made a prima facie case, he did not refute the University’s
legitimate, non-discriminatory reasons for his termination. First, the University
cited several emails Shi had sent to numerous faculty members that compared
Montgomery to foreign dictators and called him a “dictatorial leader” who “abused
his power” and violated “democracy.” Second, the University cited Shi’s behavior
at a college-wide meeting, where he had disparaged Montgomery and insisted
upon Montgomery’s resignation in an aggressive and angry manner, such that
other faculty members had felt threatened by Shi’s behavior and were concerned
for Montgomery’s safety. In fact, Shi acknowledged in his summary judgment
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motion and in a responsive pleading that he was terminated due to his behavior at
the college-wide meeting. And in a letter to the Grievance Committee, he said his
administrative leave was “due to my behavior at the college-wide meeting.”
As for his claim that the University never “convicted” him of any
wrongdoing, it is irrelevant since we do not examine whether an employer’s
decision to terminate was prudent or fair. Damon, 196 F.3d at 1361. Moreover,
the University’s faculty handbook provided that employees who engaged in
misconduct or who potentially posed a danger to others could be placed on
administrative leave immediately and indefinitely. It also said that non-tenured
faculty could be terminated at any time with three weeks’ notice and that the
University had no obligation to renew their employment contracts upon expiration.
In short, the University acted consistently with its stated policies, and Shi offers no
evidence that the real reason for his termination was his race or national origin or
that the University’s stated reason for terminating him was so implausible or false
as to suggest pretext. Combs, 106 F.3d at 1538. The district court correctly
granted summary judgment on this claim.
Finally, we reject Shi’s argument that the district court erred in granting
summary judgment on his § 1983 claims involving Wims and Montgomery. To
prevail in a § 1983 civil rights action, a plaintiff must show a person acting under
color of state law deprived him of a federal right. Griffin v. City of Opa-Locka,
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261 F.3d 1295, 1303 (11th Cir. 2001). Section 1983 creates no substantive rights;
it merely provides a remedy for deprivations of federal statutory and constitutional
rights. Almand v. DeKalb Cty., 103 F.3d 1510, 1512 (11th Cir. 1997).
The substantive component of the Due Process Clause of the Fourteenth
Amendment protects those rights that are “fundamental” -- that is, rights that are
implicit in the concept of ordered liberty. McKinney v. Pate, 20 F.3d 1550, 1556
(11th Cir. 1994). Because employment rights are state-created rights and are not
fundamental rights created by the Constitution, they do not enjoy substantive due
process protection. Id. at 1559.
State-created employment rights are, however, protected by procedural due
process requirements. Id. at 1560. A successful due process claim depends upon a
constitutionally-protected property interest in the expectation of continued
employment or of a liberty interest having been infringed upon by the state; absent
these interests, no due process protections attach. Gray v. Bd. of Regents of the
Univ. Sys., 150 F.3d 1347, 1350 (11th Cir. 1998). In other words, an employee
must show not only a desire for continued employment, but an entitlement to it.
Id. A university professor without tenure does not have a property right entitled to
protection under the due process clause. Id. at 1352-53. Similarly, a prospective
promotion is not a property or liberty interest protected by the due process clause.
Wu v. Thomas, 847 F.2d 1480, 1485 (11th Cir. 1988).
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The state may not demote or discharge a public employee in retaliation for
speech protected by the First Amendment. Bryson v. City of Waycross, 888 F.2d
1562, 1565 (11th Cir. 1989). But a public employee’s freedom of speech is not
absolute. Id. To assess a First Amendment retaliatory discharge claim, the court
first examines the content, form, and context of the employee’s speech to decide if
it addresses a matter of public concern. Id. If so, the court weighs the employee’s
First Amendment interests against the interest of the state, as an employer, in
promoting the efficiency of the public services it performs through its employees.
Id. The First Amendment does not require a public employer to tolerate a vulgar,
embarrassing, vituperative, ad hominem attack, even if the attack touches on a
matter of public concern. Mitchell v. Hillsborough Cty., 468 F.3d 1276, 1288
(11th Cir. 2006). If the manner and content of an employee’s speech is demeaning,
disrespectful, rude, and insulting, and is perceived that way in the workplace, the
government employer is within its discretion to take disciplinary action. Id.If the public employee prevails on the balancing test, the fact-finder next
determines whether the employee’s speech played a substantial part in the
government’s decision to demote or discharge the employee. Bryson, 888 F.2d at
1565. Fourth, if the employee prevails by showing that the speech was a
substantial motivating factor in the state’s employment decision, the state must
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prove by a preponderance of the evidence that it would have reached the same
decision even in the absence of the protected conduct. Id. at 1566.
Here, summary judgment was warranted on Shi’s § 1983 claims. First,
because Shi could not show that his termination, the University’s failure to
promote him, or its failure to consult him before reorganizing infringed on any of
his fundamental rights, he did not allege any violations of substantive or procedural
due process. As we’ve said, state-created employment rights are not protected by
the Constitution. McKinney, 20 F.3d at 1560. Moreover, Shi could not show he
had a property right to or liberty interest in a promotion or continued employment
since he was not tenured. Gray, 150 F.3d at 1352-53; Wu, 847 F.2d at 1485.
Nor did Shi’s First Amendment retaliatory discharge claim have merit.
While his speech opposing Montgomery’s position as dean arguably touched on a
matter of public concern, it was an embarrassing, vulgar, vituperative, ad hominem
attack that was perceived in the workplace as disrespectful, demeaning, insulting,
and rude. Mitchell, 468 F.3d at 1288. For example, in the emails Shi sent to
Montgomery and several other faculty members, Shi urged Montgomery to resign,
following the example of Egyptian President Hosni Mubarak; compared
Montgomery to Mubarak and Libyan leader Muammar Gaddafi; and accused
Montgomery of being a “dictatorial leader” who went against “democracy.” Not
only did Shi repeatedly compare Montgomery to tyrannical dictators in these
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emails, but Shi also spoke against Montgomery at the college-wide meeting in
terms so disrespectful that other faculty worried for Montgomery’s safety.
On this record, we are compelled to conclude that the interest of the
University, as an employer, in promoting the efficiency of the public services it
performs through its employees outweighed Shi’s free speech interests. Bryson,
888 F.2d at 1565. It was also well within the University’s discretion to take
disciplinary action, including placing Shi on administrative leave and not renewing
his employment. Mitchell, 468 F.3d at 1288. Because there was no genuine issue
of material fact as to whether the University violated Shi’s constitutional rights
when it placed him on administrative leave and then terminated him, the district
court correctly granted summary judgment on his § 1983 claims.
AFFIRMED.
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