Booth T. James, III v. Montgomery Regional Airport Authority

• Court: Court of Appeals for the Eleventh Circuit
• Decided: April 10, 2018
• Docket: 17-14014
• Status: Unpublished

Opinion

Case: 17-14014 Date Filed: 04/10/2018 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-14014 Non-Argument Calendar ________________________

D.C. Docket No. 2:15-cv-00332-MHT-GMB

BOOTH T. JAMES, III,

Plaintiff-Appellant,

versus

MONTGOMERY REGIONAL AIRPORT AUTHORITY, PHIL PERRY, Airport Executive Director, WILLIAM HOWELL, Airport Chief of Police,

Defendants-Appellees.

________________________

Appeal from the United States District Court for the Middle District of Alabama ________________________

(April 10, 2018)

Before MARCUS, JULIE CARNES and HULL, Circuit Judges.

PER CURIAM: Case: 17-14014 Date Filed: 04/10/2018 Page: 2 of 8

Booth James, III, proceeding pro se, appeals from the district court’s order

granting summary judgment to the Montgomery Regional Airport Authority (“the

Airport”), William Howell, and Phil Perry (collectively, the “Defendants”) on his

complaint for retaliation, filed pursuant to 42 U.S.C. § 1983. On appeal, James

argues that the district court erred because he had acted as a whistleblower in

exercising his First Amendment rights, the Defendants had not shown any policy

he had violated to warrant being fired, and the Defendants had created a hostile

work environment. After thorough review, we affirm.

We review a district court’s grant of summary judgment de novo, viewing

the evidence in the light most favorable to the nonmovant. Weeks v. Harden Mfg.

Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). Summary judgment is proper when

the movant proves that no genuine dispute exists as to any material fact and it is

entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v.

Catrett, 477 U.S. 317, 322-23 (1986). The movant also may carry its summary

judgment burden by showing an absence of evidence to support the nonmovant’s

case. Celotex, 477 U.S. at 325. In reviewing a grant of summary judgment, we

resolve all reasonable doubts about the facts in favor of the nonmovant. Burton v.

City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir. 1999). However, a “mere

scintilla” of evidence in support of the nonmovant will not overcome a summary

judgment motion. Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004).

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“While we read briefs filed by pro se litigants liberally, issues not briefed on

appeal by a pro se litigant are deemed abandoned.” Timson v. Sampson, 518 F.3d

870, 874 (11th Cir. 2008) (citation omitted). We will not act as de facto counsel

for pro se parties or rewrite a deficient pleading. GJR Invs., Inc. v. County of

Escambia, 132 F.3d 1359, 1369 (11th Cir. 1998), overruled in part on other

grounds as recognized in Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010). An

appellant may abandon a claim when he makes only passing references to it or

raises it in a perfunctory manner without supporting arguments. See Sapuppo v.

Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).

In order to prevail on a claim of retaliation by a government employer for

alleged constitutionally protected speech under 42 U.S.C. § 1983, the employee

must show that: (1) the speech involved a matter of public concern; (2) the

employee’s free speech interests outweigh the employer’s business interests; and

(3) the speech played a substantial role in the adverse employment action. Cook v.

Gwinnett Cty. Sch. Dist., 414 F.3d 1313, 1318 (11th Cir. 2005). The employer

then has the burden of proving by a preponderance of the evidence that it would

have made the same decision absent the protected speech. Id. A public

employee’s speech is not protected when his statements are made pursuant to his

official duties. Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Accordingly, in

considering the first prong of the First Amendment analysis, we must determine

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whether: (1) the employee spoke as an employee or as a citizen; and (2) the speech

addressed an issue relating to the mission of the employer or a matter of public

concern. Boyce v. Andrew, 510 F.3d 1333, 1342 (11th Cir. 2007).

In determining whether speech is made as an employee or as a citizen, we

have held that internal memoranda and complaints about employees’ ordinary roles

and duties are not protected speech under the First Amendment. Alves v. Bd. of

Regents of the Univ. Sys. of Ga., 804 F.3d 1149, 1164-65 (11th Cir. 2015); Boyce,

510 F.3d at 1342-44. A subject of public concern relates to a matter of political,

social, or other concern to the community. Watkins v. Bowden, 105 F.3d 1344,

1353 (11th Cir. 1997). In determining whether an employee’s speech relates to an

issue of public concern, a court must examine the content, form, and context of a

given statement, as revealed by the record as whole. Boyce, 510 F.3d at 1343. An

employee may not transform a personal grievance into a matter of public concern

by invoking the public’s interest in the way the institution is run. Id. at 1344. That

the information may be of general interest to the public does not necessarily make

it a “public concern” for First Amendment purposes. Id. Rather, the relevant

inquiry is whether the purpose of the speech was to raise issues of public concern

or to further the employee’s own private interest. Watkins, 105 F.3d at 1353.

If an employee establishes the threshold element that his speech was

protected by the First Amendment, we then balance the employee’s interest in the

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protected speech against the employer’s interest in regulating its workplace and

efficiently providing services. Mitchell v. Hillsborough Cnty., 468 F.3d 1276,

1282 (11th Cir. 2006). In doing so, we have noted that, without the First

Amendment’s protection, a government employer needs no overriding justification

to fire an employee, and an employee’s insulting speech, even where it touches on

a matter of public concern, does not outweigh an employer’s interest in preventing

disruption. Id. at 1287-88.

According to the summary judgment record in this case, James worked for

the Defendants for approximately 15 years as a Third Shift Police Supervisor when

he observed misconduct concerning the evidence impound of the Transportation

Security Administration (“TSA”). After discussing these concerns with his

supervisors and others, James sent a grievance letter to the Airport’s Board of

Directors, detailing issues about public safety and falsified misconduct within the

Airport Police Department. James claims that, thereafter, he was fired for

exercising his First Amendment rights in acting as a whistleblower.

The record reveals, however, that the district court did not err in granting

summary judgment to the Defendants on James’s retaliation claim. As for the first

prong of the First Amendment test, the undisputed evidence demonstrates that

James spoke as an employee in making his complaints. Garcetti, 547 U.S. at 421.

James testified that his letter, which was never made public, was an internal

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grievance he wrote in hopes of addressing issues with his employment in-house,

and it was his only complaint to the Board. While James mentioned issues that

could conceivably be matters of public concern -- including items going missing

from the Airport’s impound, improperly altered impound logs, and his efforts to

train other officers and maintain airport security in his letter -- he confirmed that he

did so in an effort to address his unsatisfactory working conditions. Because

James’s complaints were private grievances submitted to his employers about his

working conditions, his speech was made as an employee, even if he now claims

that he wrote his letter in the public interest. Alves, 804 F.3d at 1164-65; Boyce,

510 F.3d at 1343-44. Thus, James’s speech was not protected by the First

Amendment, and he cannot establish the threshold issue for a § 1983 claim.

But even if James had established that his speech was made as a citizen and

raised an issue of public concern, summary judgment would still have been proper.

As the record reveals, James could not demonstrate that his interest in his speech

was outweighed by the Airport’s interest in regulating its workplace and efficiently

providing services. Mitchell, 468 F.3d at 1287-88. James’s letter was filled with

insults -- some racial and misogynistic -- as well as repeated assertions that he

believed his coworkers would kill him. In a later deposition, James called his

supervisor a “house negro” and again said he believed his coworkers would kill

him. As a result, even if James had raised issues of public concern in his letter, the

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Airport would still have been within its discretion to take disciplinary action

against him to prevent further workplace disruption, particularly since he was an

armed police officer who continued to believe that he would be murdered. Id. at

1288. As for James’s argument that the Airport could not have fired him without

providing a copy of a conduct policy he violated, the Airport needed no overriding

justification to fire him since, as we’ve said, his speech invoked no First

Amendment protection. Id. at 1287.

To the extent James has appealed from the district court’s earlier dismissal

without prejudice of his Title VII claims (as opposed to the court’s treatment of his

retaliation claim), we find no error. As the record reflects, the district court

informed James that it was dismissing his claims without prejudice because,

although he may have stated viable Title VII claims based on his letter, he failed to

attach his letter to his complaint. The district court then dismissed James’s Title

VII claims without prejudice, instructing him that, if he wanted to pursue those

claims, he needed to seek leave to file a new complaint with additional factual

allegations supporting them. James declined to do so, and has identified no error

in the district court’s dismissal of his Title VII claims without prejudice. See Bank

v. Pitt, 928 F.2d 1108, 1112 (11th Cir.1991) (noting that a district court can

dismiss a claim without prejudice where a more carefully drafted complaint might

state a claim, so long as the pro se plaintiff is given at least one chance to amend

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the complaint before the district court dismisses the action with prejudice),

overruled in part on other grounds by Wagner v. Daewoo Heavy Indus. Am. Corp.,

314 F.3d 541, 542 (11th Cir. 2002) (en banc) (addressing counseled parties).

Moreover, James has not meaningfully raised his Title VII arguments on

appeal. See Timson, 518 F.3d at 874. While he makes passing references to a

hostile work environment in his brief, he does not address the Title VII legal

framework, explain whether his claim was based on discrimination or retaliation,

or cite the factual allegations that resulted in such an environment. See Sapuppo,

739 F.3d at 680. On this record, James has abandoned his Title VII issues on

appeal. See Timson, 518 F.3d at 874. Finally, as for James’s arguments about the

authenticity of the employee conduct handbook and lost and found policy, he does

not explain how the documents pertain to his claims.

AFFIRMED.