Serless West v. City of Albany, Georgia

Case: 19-11418 Date Filed: 10/02/2020 Page: 1 of 22
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-11418
________________________
D.C. Docket No. 1:15-cv-00102-LAG
SERLESS WEST,
Plaintiff-Appellant,
versus
THE CITY OF ALBANY, GEORGIA,
JOELLEN BROPHY,
THOMAS BERRY,
Defendants-Appellees.
____________________________
Appeal from the United States District Court
for the Middle District of Georgia
____________________________
(October 2, 2020)
Before JORDAN, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Serless West appeals the district court’s grant of summary judgment on her
claims of race discrimination and retaliation against the City of Albany, JoEllen
Brophy, and Thomas Berry. West argues that a genuine issue of material fact exists
as to her claims of (1) race discrimination and retaliation in violation of the Equal
Protection Clause, brought under 42 U.S.C. § 1983; (2) race discrimination in
Case: 19-11418 Date Filed: 10/02/2020 Page: 2 of 22
violation of 42 U.S.C. § 1981, brought under 42 U.S.C. § 1983; (3) race
discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e,
et seq.; and (4) retaliation in violation of the Georgia Whistleblower Act, O.C.G.A.
§ 45-1-4(d)(2). After consideration and with the benefit of oral argument, we
conclude that the district court did not err in granting summary judgment.
I. BACKGROUND
As this is a review of a summary judgment proceeding, we view the facts in
the light most favorable to West as the nonmoving party. See Perez v. Suszczynski,
809 F.3d 1213, 1217 (11th Cir. 2016).
West is an African American woman who was employed with the City of
Albany, Georgia from March 2005 until her termination on November 21, 2014.
West initially enjoyed a smooth and gainful tenure within the City Finance
Department, receiving positive performance reviews and promotions. But that
changed in February 2014, when JoEllen Brophy became the Chief Financial Officer
for the City.
As CFO, Brophy repeatedly belittled African American employees. She
referred to individual employees as “incompetent” or “incapable.” She required
West to train less qualified white employees who were paid a higher salary than her.
One such employee was Kayren Tomlinson. Brophy promoted Tomlinson,
originally a secretary in the Finance Department, to the position of Grants Manager.
2
Case: 19-11418 Date Filed: 10/02/2020 Page: 3 of 22
Brophy also gave Tomlinson a higher salary than West even though West had more
experience and trained her. Brophy also asked West to double-check and correct the
work of Tomlinson and two other white employees who also had higher salaries than
West.
During a meeting one afternoon, Brophy told West she needed to order herself
business cards. West then heard from a coworker that Brophy wanted those cards to
list West’s title as “Staff Accountant.” West emailed Brophy, expressing her
discontent with that idea and stating “do you know what a Staff Accountant is? A
Staff Accountant is an entry level position.” She further wrote “I am really amazed
that you would try to belittle me and my work.”
West spoke to Brophy about her concerns again a month later. She explained
that she was training less qualified white employees for jobs that were higher paying
than hers and that she was not receiving advancement opportunities. A few weeks
later, Brophy recommended West be terminated.
Brophy stated that she recommended termination because of West’s behavior
the day before. On that day, West was moving offices and wanted to place her filing
cabinet behind her desk. Brophy disagreed with this choice of furniture placement
and became irate, chasing West down the hallway. Brophy then ordered West into
her office. West requested that a neutral third-party observe the exchange and both
the Human Resources Director, Henry Cohen, and West’s supervisor, Sandy LeMay,
3
Case: 19-11418 Date Filed: 10/02/2020 Page: 4 of 22
witnessed the meeting. Brophy yelled at West, gesticulating aggressively with her
finger. West responded, “you don’t put your hand in my face because slavery time
is over with. I’m not a slave.”
West objected to how Brophy treated her and Cohen suggested West return
home for the day and put her concerns in writing. That evening, West sent Cohen an
email detailing Brophy’s behavior. West stated that Brophy had an attitude and
insulted her in front of other employees. She further alleged that several employees
were “fed up” with Brophy and “ready to file a complaint because they are tired of
being mistreated.” Finally, she predicted the department would fall apart if Brophy’s
attitude did not change, referencing Brophy’s grudges against certain employees and
saying she would “try to stop me from progressing in the department.” The next day,
Cohen responded by asking West “who do you think you are?”
The day after Brophy recommended that West be terminated, the Albany
Herald published a statement by Brophy that “an employee in the city’s Finance
office had indeed misinformed [the City Downtown Development Authority Board]
about bond funding available to the agency.” It further stated “that the oversight had
led to the dismissal of the employee responsible.” At that time, West was the only
Finance Department employee assigned as the liaison to the Authority. But West had
never made statements about bond funding capacity—that job fell under Brophy’s
purview as CFO.
4
Case: 19-11418 Date Filed: 10/02/2020 Page: 5 of 22
West appealed Brophy’s termination recommendation and Defendant-
Appellee Thomas Berry, the Interim County Manager, held a hearing on the appeal
on August 22, 2014. Berry did not force Brophy to reconcile her contradictory
statements and ignored West’s protestations that she had not been insubordinate.
Instead, Berry suspended West, required her to attend behavioral counseling, and
transferred her to the Utility Department as a Teller Supervisor.
While with the Utility Department, West discovered that its employees were
handling cash in a manner she believed to be improper. Specifically, another Teller
Supervisor told West to place her cash till in an unsecure and unlocked location one
day while she went to lunch. West’s till subsequently came up $100 short and she
was given a written reprimand. Around two weeks later, West sent a memorandum
to the teller supervisor outlining her concerns regarding the need for appropriate
financial controls within the Department. Five days after she sent that memorandum,
West was fired.
West then filed a complaint in the Middle District of Georgia alleging race
discrimination and retaliation by Brophy, Berry, and the City of Albany. During
discovery, West sought to depose the City under Federal Rule of Civil Procedure
30(b)(6) on ten subject matters. The City moved for a protective order regarding two
of those subject matters under Federal Rule of Civil Procedure 26. The district court
granted that motion as to only one of West’s requests: to depose the City regarding
5
Case: 19-11418 Date Filed: 10/02/2020 Page: 6 of 22
any audits, investigations, analyses of financial procedures, financial protocols, and
financial irregularities involving any tellers in the Utility Department.
The defendants then moved for summary judgment on all claims. West filed
two 44-page documents in support of her response to that motion: one outlining
disputed facts and another providing paragraph-by-paragraph rebuttals to the
defendants’ list of undisputed facts. In support of their reply brief, the defendants
filed an 80-page response to West’s statement of disputed facts. The district court
rejected both West’s 44-page paragraph-by-paragraph rebuttal and the defendants’
80-page response as not contemplated by the local rules and granted the defendants’
motion for summary judgment. West then filed a timely notice of appeal.
II. DISCUSSION
West raises five issues on appeal. She first argues that the district court abused
its discretion by (1) partially granting the City of Albany’s motion for a protective
order limiting the scope of a Rule 30(b)(6) deposition and (2) refusing to consider
her response to the defendants’ statement of undisputed facts. As to the merits of her
claims, she argues that the district court erroneously (1) concluded she did not plead
a viable retaliation claim, (2) determined Tomlinson was not a similarly situated
comparator and West had not proven a city policy condoning discrimination for
purposes of her race discrimination claims, and (3) retained jurisdiction over her
6
Case: 19-11418 Date Filed: 10/02/2020 Page: 7 of 22
state-law whistleblower claim and determined her pre-termination disclosure did not
allege a violation of law for purposes of that claim.
West also argues the district court erred by granting Berry and Brophy
qualified immunity—an issue the district court never reached. Because we hold
summary judgment was appropriate on West’s race discrimination and retaliation
claims, we need not address whether Berry and Brophy are entitled to qualified
immunity on those claims. See Seminole Tribe of Fla. v. Fla. Dep’t of Revenue, 750
F.3d 1238, 1242 (11th Cir. 2014) (stating this Court can affirm the district court “on
any ground supported by the record”). We discuss the remaining issues in turn.
A. The District Court Did Not Err by Limiting the Scope of West’s 30(b)(6)
Deposition
We review a district court’s discovery rulings for abuse of discretion and will
not disturb those rulings unless the district court made clearly erroneous factual
findings or applied the wrong legal standard. See Josendis v. Wall to Wall Residence
Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir. 2011). “The district court has wide
discretion in determining the scope and effect of discovery,” and does not abuse its
discretion by limiting the scope of discovery if the parties are given “an opportunity
to conduct adequate discovery.” Avirgan v. Hull, 932 F.2d 1572, 1580 (11th Cir.
1991).
Under Federal Rule of Civil Procedure 30(b)(6), a party seeking to depose a
governmental agency must “describe with reasonable particularity the matters for
7
Case: 19-11418 Date Filed: 10/02/2020 Page: 8 of 22
examination.” Those matters, like all discovery, “should be tailored to the issues
involved in the particular case.” See Washington v. Brown & Williamson Tobacco
Corp., 959 F.2d 1566, 1570 (11th Cir. 1992) (citing Robbins v. Camden City Bd. of
Educ., 105 F.R.D. 49, 55 (D.N.J. 1985)). And any information sought during
discovery “must be relevant and not overly burdensome to the responding party.” Id.
If the requested discovery would result in “annoyance, embarrassment, oppression,
or undue burden or expense,” the responding party may move for a protective order
under Federal Rule of Civil Procedure 26(c). If the district court decides a protective
order is warranted, it has broad discretion in determining the scope of that protection.
See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984) (“Rule 26(c) confers
broad discretion on the trial court to decide when a protective order is appropriate
and what degree of protection is required”).
West sought 30(b)(6) depositions of the City on ten subjects, and the City
moved for a protective order regarding two of those subjects. The district court
granted the motion only as to one: West’s request for a deposition regarding any
audits, investigations, analyses of financial procedures, and financial irregularities
involving any tellers in the Utility Department. West sought that information to
support her claim that the City violated the Georgia Whistleblower Act, O.C.G.A. §
45-1-4(d)(2), by terminating her in retaliation for her disclosing financial
irregularities within the Teller Division of the Utility Department.
8
Case: 19-11418 Date Filed: 10/02/2020 Page: 9 of 22
Under the Act, a public employer may not “retaliate against a public employee
for disclosing a violation of or noncompliance with a law, rule, or regulation to either
a supervisor or a government agency.” O.C.G.A. § 45-1-4(d)(2). West argues that
the district court abused its discretion by granting the protective order because her
request was tailored to the issue of whether she sufficiently “disclos[ed] a violation
of or noncompliance with a law, rule, or regulation.” And, if she did, her subsequent
termination could be considered retaliatory under the Act.
We cannot say that the district court abused its discretion by concluding that
West’s request was overbroad, vague, at risk of causing the City undue burden and
expense, and of questionable relevance disproportionate to the needs of her case.
The Act requires that an employee disclose a suspected legal violation, not prove
that the violation actually occurred. See Forrester v. Georgia Dep’t of Hum. Servs.,
708 S.E.2d 660, 666 (Ga. Ct. App. 2011).The information West requested would not
make the fact of her disclosure more or less true; the information would only
establish that the conduct she complained of actually occurred. Accordingly, West’s
discovery request was only tangentially relevant to her claim and we affirm the
district court’s grant of a partial protective order to the City on that request.
B. The District Court Did Not Abuse its Discretion in Applying the Local Rules
We defer to a district court’s interpretation of its own rules, reviewing that
interpretation only for abuse of discretion. See Reese v. Herbert, 527 F.3d 1253,
9
Case: 19-11418 Date Filed: 10/02/2020 Page: 10 of 22
1267 n.22 (11th Cir. 2008). In the Middle District of Georgia, “[t]he respondent to a
motion for summary judgment shall attach to the response a separate and concise
statement of material facts, numbered separately, to which the respondent contends
there exists a genuine dispute to be tried.” M.D. Ga. L.R. 56. Local Rule 7.4 requires,
absent a showing of good cause, that briefs in support of or in response to any motion
be limited to twenty pages and reply briefs be limited to ten pages.
Neither of West’s 44-page documents in response to the defendants’ motion
for summary judgment complied with Local Rule 56’s concision requirement or
Local Rule 7.4’s page limit. But the district court accepted the first document,
despite its noncompliance, because Local Rule 56 allows for a statement of material
facts in response to a motion for summary judgment. The district court rejected the
second filing because Rule 56 does not allow for a paragraph-by-paragraph rebuttal
in addition to that statement of material facts. The district court also rejected the
defendants’ rebuttal document for the same reason.
West argues that the district court’s rejection of her rebuttal document was
“the harshest of penalties” and “an overly aggressive reading of Local Rule 56.” But
Local Rule 56 explicitly requires one “separate and concise statement of material
facts” in response to a motion for summary judgment, not multiple filings exceeding
Local Rule 7.4’s page limit. And the district court did consider West’s statement of
material facts, which West concedes included all facts she believed to be in dispute.
10
Case: 19-11418 Date Filed: 10/02/2020 Page: 11 of 22
Further, because both parties failed to “succinctly and accurately present the relevant
issues,” the district court explicitly examined the entire record when ruling on the
defendants’ motion for summary judgment, not just the statements of fact and
briefings. Consequently, the district court did not abuse its discretion by interpreting
Local Rule 56 to require that West respond to the defendants’ motion for summary
judgment with only one succinct statement of material facts.
C. The Equal Protection Clause Does Not Provide a Cause of Action for
Retaliation and West Never Pleaded One Otherwise
In Count I of the complaint, West alleged that “Defendants violated her rights
to equal protection by taking adverse and retaliatory employment actions” against
her. The defendants then moved for summary judgment, arguing that the Equal
Protection Clause does not establish a right to be free from retaliation. West
responded by alleging retaliation under Title VII but without amending the
complaint to include that claim. The district court granted summary judgment on her
Title VII retaliation claim because she did not allege it in her complaint and on her
Equal Protection Clause claim because the Equal Protection Clause does not provide
a right to be free from retaliation. West argues that the district court erred by not
interpreting the complaint to allege retaliation under each of her federal statutory
claims.
“We review a district court’s grant of summary judgment de novo, applying
the same legal standards that controlled the district court’s decision.” Levinson v.
11
Case: 19-11418 Date Filed: 10/02/2020 Page: 12 of 22
Reliance Std. Life Ins. Co., 245 F.3d 1321, 1325 (11th Cir. 2001). Section 1981 and
Title VII clearly establish a right to be free from retaliation; the Equal Protection
Clause does not. See CBOCS West, Inc. v. Humphries, 553 U.S. 442, 457 (2008)
(“42 U.S.C. § 1981 encompasses claims of retaliation”); Watkins v. Bowden, 105
F.3d 1344, 1354 (11th Cir. 1997) (“A pure or generic retaliation claim . . . simply
does not implicate the Equal Protection Clause.”). “At the summary judgment stage,
the proper procedure for plaintiffs to assert a new claim is to amend the complaint
in accordance with Fed. R. Civ. P. 15(a). A plaintiff may not amend her complaint
through argument in a brief opposing summary judgment.” Gilmour v. Gates,
McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (citing Shanahan v. City of
Chicago, 82 F.3d 776, 781 (7th Cir. 1996))). And it is well established that this Court
will not consider issues asserted for the first time on appeal. Access Now, Inc. v. Sw.
Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (collecting cases).
West raised retaliation only in Count I of her complaint, alleging the
defendants’ actions violated the Equal Protection Clause. Now, for the first time on
appeal, she argues that she alleged retaliation under both Title VII and Section 1981
by incorporating by reference all preceding paragraphs in the complaint for each of
her federal statutory claims. Confoundingly, the only provision she now argues she
did not raise retaliation under is the Equal Protection Clause, the lone provision
referenced in Count I of her complaint.
12
Case: 19-11418 Date Filed: 10/02/2020 Page: 13 of 22
We agree with the district court that West asserted only retaliation in violation
of the Equal Protection Clause. She has now abandoned that Equal Protection
retaliation claim; she cannot pursue a new claim under Title VII or Section 1981 that
was not included in her complaint. She has identified no basis to reverse the district
court’s judgment. Accordingly, we affirm the district court’s grant of summary
judgment on West’s retaliation claim.
D. West Failed to Identify a Valid Comparator or Plead a Mosaic Theory
The heart of West’s complaint in the district court was her race discrimination
claims under Title VII and 42 U.S.C. § 1983, in which she alleged that the defendants
violated her rights under the Equal Protection Clause and Section 1981. This Court
applies the same standards of proof and analytical framework to discrimination
claims brought under either statute. Bryant v. Jones, 575 F.3d 1281, 1296 n.20 (11th
Cir. 2009) (first quoting Tademy v. Union Pac. Corp., 520 F.3d 1149, 1170 (10th
Cir. 2008) republished at Tademy v. Union Pac. Corp., 614 F.3d 1132 (10th Cir.
2008); and then citing Cross v. Alabama, 49 F.3d 1490, 1507–08 (11th Cir. 1995)).
If a party is unable to produce direct evidence of discriminatory intent, she must
establish intentional race discrimination through either a “convincing mosaic” of
circumstantial evidence or through the McDonnell Douglas burden-shifting
framework. Lewis v. City of Union City, Ga., 918 F.3d 1213, 1220 n.6 (11th Cir.
2019) (en banc).
13
Case: 19-11418 Date Filed: 10/02/2020 Page: 14 of 22
West failed to rely on a mosaic theory in her complaint or response to the
defendants’ motion for summary judgment. We will not entertain that new argument
on appeal. Accordingly, we consider only West’s arguments regarding the district
court’s McDonnell Douglas analysis.
1. Race Discrimination Claims Against Berry and Brophy
Under the McDonnell Douglas framework, a party must first establish a
“prima facie case of discrimination by showing (1) that she belongs to a protected
class, (2) that she was subjected to an adverse employment action, (3) that she was
qualified to perform the job in question, and (4) that her employer treated ‘similarly
situated’ employees outside her class more favorably.” Lewis, 918 F.3d at 1220–21
(citing Holifield v. Reno, 115 F.3d 1555, 1561–62 (11th Cir. 1997)). To satisfy this
fourth requirement, a party must first identify a specific, similarly situated employee,
“in court-speak, a ‘comparator.’” Id. at 1217 (citing Tex. Dep’t of Cmty. Aff.s v.
Burdine, 450 U.S. 248, 258–59 (1981)).
We have recognized that identifying a comparator is often the most difficult
part of the McDonnell Douglas framework and, therefore, do not require that the
comparator be in an identical position to the complaining party. See id. at 1226.
Rather, the comparator must be “similarly situated in all material respects.” Id. This
standard “will turn not on formal labels, but rather on substantive likenesses,” such
14
Case: 19-11418 Date Filed: 10/02/2020 Page: 15 of 22
as whether the two “have engaged in the same basic conduct (or misconduct),” and
have a similar “employment or disciplinary history.” Id. at 1227.
The district court reasoned that West’s race discrimination claims failed
because, although she established the first three McDonnell Douglas requirements,
she failed to identify a valid comparator. West argues that her former coworker,
Tomlinson, is a valid comparator. The district court held that Tomlinson is not a
valid comparator because the two employees’ employment and disciplinary histories
are qualitatively different.
Although the district court did not have the benefit of our decision in Lewis
when it analyzed the comparator issue, the district court reached the correct bottom-
line conclusion. West identifies some similarities between herself and Tomlinson.
West and Tomlinson were both accountants reporting to Brophy. Tomlinson also
had a similar run-in with Brophy: on one occasion, Tomlinson got into a heated
argument with Brophy, crying and yelling at her for telling Tomlinson to move
personnel files. But that is where their similarities end. The two women did not
engage in the same basic conduct. West behaved insubordinately toward Brophy on
several occasions. In an email about business cards, she accused Brophy of
attempting to belittle her. During a meeting with other employees present, she
accused Brophy of treating her like a slave. And, after that meeting, she wrote a
disrespectful email about Brophy to Cohen.
15
Case: 19-11418 Date Filed: 10/02/2020 Page: 16 of 22
West argues that this Court should ignore those instances because Brophy
never explicitly called West “insubordinate” on those occasions. But that fact is
irrelevant to the question of whether West and Tomlinson are “similarly situated in
all material respects.” Because both the quality and quantity of West and
Tomlinson’s interactions with Brophy differ, they are not. We affirm the district
court’s grant of summary judgment as to West’s race discrimination claims against
Berry and Brophy.
2. Race Discrimination Claims Against the City
West argues that she presented sufficient evidence to the district court that the
City violated her rights under Section 1981 and the Equal Protection Clause by
maintaining a policy that constituted deliberate indifference to her right to be free
from race discrimination. For a local government entity to be liable under Section
1983, there must have been a constitutional violation, a governmental custom or
policy of deliberate indifference, and “the execution of [the] government’s policy or
custom … [must have] inflict[ed] the injury;” liability will not stand for “an injury
inflicted solely by its employees or agents.” Monell v. Dep’t of Soc. Servs. of N.Y.C.,
436 U.S. 658, 694 (1978); see also McDowell v. Brown, 392 F.3d 1283, 1289 (11th
Cir. 2004).
West alleged that the City violated her constitutional rights by maintaining “a
pattern and practice of unlawful racial discrimination.” But, as explained above,
16
Case: 19-11418 Date Filed: 10/02/2020 Page: 17 of 22
West has failed to establish racial discrimination as a matter of law. Thus, West has
not met the first element of her Section 1983 claim against the City: that her
constitutional rights were violated. Accordingly, we need not reach the questions of
a custom of deliberate indifference or of causation. We affirm the district court’s
grant of summary judgment on West’s Section 1983 claim against the City.
D. The District Court Properly Disposed of West’s Whistleblower Claim
West argues that the district court mishandled her Georgia Whistleblower Act
claim in two ways: first, by retaining jurisdiction over it, and second, by concluding
that she had failed to disclose a violation of state law. The defendants first respond
that retaining supplemental jurisdiction was proper under 28 U.S.C. § 1367(c).
Second, the defendants argue that the conduct about which West complained to her
supervisor did not constitute a violation of state law. We agree with the defendants.
1. The District Court Properly Retained Supplemental Jurisdiction
West filed the complaint in federal district court and asked that court to
exercise supplemental jurisdiction over her Georgia Whistleblower Act claim under
Section 1367. She does not argue that the district court improperly exercised that
jurisdiction; all parties agree that the district court had supplemental jurisdiction over
West’s state law claim under Section 1367(a). And West never asked the district
court to later reject that exercise of jurisdiction. Instead, West argues that the district
court erred by retaining that jurisdiction and granting summary judgment on her
17
Case: 19-11418 Date Filed: 10/02/2020 Page: 18 of 22
whistleblower claim rather than sua sponte dismissing the whistleblower claim so
that she could bring it again in state court.
The district court’s decision to either retain or reject jurisdiction over state law
claims under Section 1367(c) is “purely discretionary” and “not a jurisdictional
matter.” Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639–40 (2009)
(collecting cases) (quoting 16 J. Moore et al., Moore’s Federal Practice § 106.05[4],
p. 106–27 (3d ed. 2009)). As such, we review a district court’s decision to exercise
supplemental jurisdiction for abuse of discretion. Ameritox, Ltd. v. Millennium
Lab’ys, Inc., 803 F.3d 518, 532 (11th Cir. 2015). And “[t]he district court cannot
abuse its discretion by failing to consider arguments that are not before it.” Smith v.
Psychiatric Sols., Inc., 750 F.3d 1253, 1262 (11th Cir. 2014). Because West did not
raise this issue before the district court, we believe she has waived it. See id. (citing
Ramirez v. Sec’y, U.S. Dep’t of Transp., 686 F.3d 1239, 1249 (11th Cir. 2012)); cf.
Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997); Doe by Fein v.
District of Columbia, 93 F.3d 861, 871 (D.C. Cir. 1996); Myers v. Cnty. of Lake,
Ind., 30 F.3d 847, 850 (7th Cir. 1994).
But even if West has not waived this argument, “a district court does not abuse
its discretion when it has a range of choices and the court’s choice does not constitute
a clear error of judgment.” Est. of Amergi ex. rel. Amergi v. Palestinian Auth., 611
F.3d 1350, 1365 (11th Cir. 2010) (cleaned up). Section 1367(a) allows federal courts
18
Case: 19-11418 Date Filed: 10/02/2020 Page: 19 of 22
with original jurisdiction over a claim to exercise “supplemental jurisdiction over all
other claims that are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy under Article III of
the United States Constitution.” Under Section 1367(c)(3), “district courts may
decline to exercise supplemental jurisdiction over a claim under subsection (a) if . .
. the district court has dismissed all claims over which it has original jurisdiction.”
The district court may likewise decline to exercise supplemental jurisdiction under
Section 1367(c)(4) “in exceptional circumstances” when “there are other compelling
reasons for declining jurisdiction.”
West does not identify which provision of Section 1367(c) she believes
compelled the district court to reject supplemental jurisdiction over her
whistleblower claim. Because the whistleblower claim does not raise a “novel or
complex issue of State law” or “substantially predominate[] over the claim or claims
over which the district court has original jurisdiction,” (c)(1) and (c)(2) do not apply.
Accordingly, we analyze whether the district court abused its discretion under (c)(3)
and (c)(4).
When a district court has discretion under Section 1367(c) to either retain or
reject supplemental jurisdiction, it should consider the factors the Supreme Court
announced in United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966):
judicial economy, convenience, fairness, and comity. See Ameritox, 803 F.3d at 537;
19
Case: 19-11418 Date Filed: 10/02/2020 Page: 20 of 22
see also Palmer v. Hosp. Auth. of Randolph Cnty., 22 F.3d 1559, 1569 (11th Cir.
1994) (“while supplemental jurisdiction must be exercised in the absence of any of
the four factors of section 1367(c), when one or more of these factors is present, the
additional Gibbs considerations may, by their presence or absence, influence the
court in its decision”). All four Gibbs factors weigh in favor of the district court
retaining jurisdiction. West requested that the district court exercise supplemental
jurisdiction over her state law claim. At the time of the summary judgment, the case
had been pending in district court for nearly five years and both parties had briefed
responses to the relatively simple question of state law: whether West disclosed a
violation of state law, rule, or regulation as defined by the Act. Because judicial
economy, convenience, fairness, and comity all weighed in favor of the district court
retaining jurisdiction over West’s whistleblower claim, it did not abuse its discretion
by doing so.
2. West Did Not Disclose a Violation of State Law, Rule, or Regulation
A party establishes a prima facie case under the Georgia Whistleblower Act
by showing that (1) she works for a public employer; (2) she disclosed a violation
of, or noncompliance with, a law, rule, or regulation to a supervisor or agency; (3)
she experienced an adverse employment action; and (4) there is a causal relationship
between that disclosure and the adverse employment action. Lamar v. Clayton Cnty.
Sch. Dist., 605 F. App’x 804, 806 (11th Cir. 2015) (citing Forrester v. Ga. Dep’t of
20
Case: 19-11418 Date Filed: 10/02/2020 Page: 21 of 22
Hum. Servs., 708 S.E.2d 660, 665 (Ga. Ct. App. 2011)). It is undisputed that West
worked for a public employer. West argues that she satisfied the second element by
disclosing inadequate cash-control protocols to her supervisor. But she never
contends that those protocols violate any law, rule, or regulation.
Georgia courts have dismissed whistleblower claims in similar factual
scenarios. See Coward v. MCG Health, Inc., 802 S.E.2d 396, 400 (Ga. Ct. App.
2017); Edmonds v. Bd. of Regents of the Univ. System of Ga., 689 S.E.2d 352, 357
(Ga. Ct. App. 2009), disapproved in part on other grounds, Wolfe v. Bd. of Regents
of the Univ. System of Ga., 794 S.E.2d 85 (Ga. 2016). In Coward, two nurses alleged
that they were terminated as retaliation for speaking out against understaffing. 802
S.E.2d at 318. But the court held that one of the plaintiff’s complaints “identified
only internal operating procedures . . . as the basis for her concerns,” not a violation
of “any law, rule, or regulation.” Id. at 400. Thus, her complaints were not “the type
of protected activity the Whistleblower Statute was intended to protect.” Id. at 400.
Similarly, here West complained to her supervisor about lax internal cash-control
protocols. Those protocols, or any violation of those protocols, did not constitute a
violation of any law, rule, or regulation. And West did not allege otherwise.
21
Case: 19-11418 Date Filed: 10/02/2020 Page: 22 of 22
Accordingly, summary judgment was appropriate. We affirm the district court’s
grant of summary judgment on West’s whistleblower claim.
III. CONCLUSION
The district court did not abuse its discretion by partially granting the City’s
motion for a protective order or refusing to consider West’s rebuttal to the
defendants’ statement of undisputed facts. It did not err by concluding that West did
not plead viable retaliation or race discrimination claims. And it properly retained
jurisdiction over and granted summary judgment on her Georgia Whistleblower Act
claim. Accordingly, the district court is AFFIRMED.
22