Jeffrey Glover v. Patrick R. Donahoe

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 16, 2015
• Docket: 14-15427
• Status: Unpublished

Opinion

Case: 14-15427 Date Filed: 09/16/2015 Page: 1 of 10

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 14-15427 Non-Argument Calendar ________________________

D.C. Docket No. 1:13-cv-02040-KOB

JEFFREY GLOVER,

Plaintiff-Appellant,

versus

PATRICK R. DONAHOE, Postmaster General of the United States Postal Service ("USPS") in his official and individual capacity, DARREN BUGGS, Officer in Charge, USPS, in his official and individual capacity, DERRICK KING, Officer in charge/Postmaster, USPS, in his official and individual capacity, STEPHANIE JOHNSON, 204B Supervisor, USPS, in her official and individual capacity, UNITED STATES,

Defendants-Appellees. Case: 14-15427 Date Filed: 09/16/2015 Page: 2 of 10

________________________

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

(September 16, 2015)

Before HULL, ROSENBAUM, and EDMONDSON, Circuit Judges.

PER CURIAM:

In this employment discrimination case, Jeffrey Glover, a white United

States Postal Service (“USPS”) employee, appeals the dismissal of his amended

complaint against Postmaster General Patrick Donahoe and three USPS

employees, each sued in his individual and official capacities. No reversible error

has been shown; we affirm.

Briefly stated, this case arises out of the USPS’s investigation of a customer

complaint against Glover: a black woman accused Glover of using a racial epithet

and profanity toward her while Glover was on his postal route. During the

investigation, Glover alleges that USPS employees began spreading rumors about

Glover having cursed a customer. Glover was ultimately charged with

inappropriate conduct, and his employment was terminated. Glover appealed the

termination; and, five days after his termination took effect, a dispute resolution

team overturned the termination and reinstated Glover’s employment. After

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Glover’s reinstatement, Glover contends that Defendants failed to reactivate

Glover’s door-access code for two weeks and delayed payment of Glover’s

backpay for two weeks.

In his amended complaint, Glover purports to assert against Defendants six

federal-law claims of employment discrimination and retaliation and two state-law

claims for libel and slander. The United States Attorney, pursuant to 28 U.S.C. §

2679(d)(1), certified that all individual Defendants were acting within the scope of

their employment at the time of the alleged libel and slander. As a result, the

government sought to substitute the United States as a party for the

individually-named defendants in Glover’s state law libel and slander claims.

In a thorough and reasoned order, the district court (1) affirmed the United

States Attorney’s scope-of-employment certification, (2) substituted the United

States for the individually-named Defendants in Glover’s libel and slander claims;

and (3) denied Glover’s request for discovery and an evidentiary hearing. In a

second detailed order, the district court granted Defendants’ motion to dismiss

Glover’s complaint for lack of subject matter jurisdiction and for failure to state a

claim.

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I. Libel and Slander Claims

On appeal, Glover first challenges the district court’s substitution of the

United States as a party in place of the individually-named defendants to Glover’s

libel and slander claims (Counts Six and Seven).

Under the Federal Tort Claims Act, the United States shall be substituted as

the defendant in civil actions against federal employees “[u]pon certification by the

Attorney General that the defendant employee was acting within the scope of his

office or employment at the time of the incident out of which the claim arose.” 28

U.S.C. § 2679(d)(1). If a plaintiff objects, the district court reviews de novo the

United States Attorney’s scope of employment certification. S.J. & W. Ranch, Inc.

v. Lehtinen, 913 F.2d 1538, 1543 (11th Cir. 1990). The plaintiff, however, bears

“the burden of altering the status quo by proving that the employee acted outside

the scope of employment.” Id.

The question of whether an employee acted within the scope of his

employment for purposes of section 2679(d)(1) “is an issue governed by the law of

the state where the incident occurred.” Id. at 1542. Under Alabama law, “[a]n act

is within an employee’s scope of employment if the act is done as part of the duties

the employee was hired to perform or if the act confers a benefit on his employer.”

Hulbert v. State Farm Mut. Auto. Ins. Co., 723 So.2d 22, 23 (Ala. 1998). The

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dispositive question is whether, at the time of the alleged wrongdoing, “the

employee was engaged in an act that he was hired to perform or in conduct that

conferred a benefit on his employer.” Id. at 24.

Here, the district court reviewed expressly the United States Attorney’s

certification under the proper de novo standard of review. Accepting the

allegations in Glover’s amended complaint as true -- and applying Alabama law --

the district court determined that Glover failed to satisfy his burden of proving that

Defendants acted outside the scope of their employment. According to Glover’s

complaint, Defendants’ alleged wrongful statements were made during the course

of an official USPS investigation of a customer complaint against Glover: a duty

that Defendants were hired to perform and that benefitted the USPS.

Moreover, nothing mandates that a district court allow discovery and hold an

evidentiary hearing before ruling on a section 2679 certification. Discovery and an

evidentiary hearing are particularly unnecessary in this case, where Glover alleged

no facts to support his contention that Defendants were acting outside the scope of

their employment at the time of the alleged wrongdoing.

The district court substituted properly the United States as a defendant to

Glover’s state-law libel and slander claims. As a result, Glover’s state-law claims

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were subject to dismissal for lack of subject matter jurisdiction. 1 See 28 U.S.C. §

2680(h) (providing an exception to the United States’ waiver of sovereign

immunity under the Federal Tort Claims Act for claims involving libel or slander);

JBP Acquisitions, L.P. v. United States ex rel. FDIC, 224 F.3d 1260, 1263-64

(11th Cir. 2000) (courts lack subject matter jurisdiction to consider claims against

the United States when the alleged conduct falls into one of the statutory

exceptions to the Federal Tort Claims Act).

II. Federal Law Claims

Glover also challenges the district court’s dismissal, under Fed.R.Civ.P.

12(b)(6), of four of his federal law claims. 2 We review de novo a district court’s

dismissal for failure to state a claim, accepting all alleged facts as true and

construing them in the light most favorable to the plaintiff. Butler v. Sheriff of

Palm Beach Cnty., 685 F.3d 1261, 1265 (11th Cir. 2012).

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). “Although a Title VII

1 Because Glover’s libel and slander claims were dismissed properly for lack of subject matter jurisdiction, we need not consider whether these claims were also barred by Alabama’s statute of limitations. 2 On appeal, Glover fails to challenge the district court’s dismissal of Counts Two and Eight: these claims are abandoned. See Carmichael v. Kellogg, Brown & Root Serv., Inc., 572 F.3d 1271, 1293 (11th Cir. 2009). 6 Case: 14-15427 Date Filed: 09/16/2015 Page: 7 of 10

complaint need not allege facts sufficient to make out a classic McDonnell

Douglas 3 prima facie case, it must provide enough factual matter (taken as true) to

suggest intentional race discrimination.” Davis v. Coca-Cola Bottling Co. Consol.,

516 F.3d 955, 974 (11th Cir. 2008) (quotation and citation omitted). In addition to

containing well-pleaded factual allegations, complaints must also meet the

“plausibility standard” set forth by the Supreme Court in Bell Atl. Corp. v.

Twombly, 127 S.Ct. 1955 (2007), and in Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-

50 (2009). 4 This plausibility standard requires “more than a sheer possibility that

a defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1949. “Where a complaint

pleads facts that are merely consistent with a defendant’s liability, it stops short of

the line between possibility and plausibility of entitlement to relief.” Id.

(quotations omitted). Our analysis of the plausibility standard is “context-specific”

and “requires [us] to draw on [our] judicial experience and common sense.” Id. at

1950.

As an initial matter, claims under Title VII for employment discrimination

and retaliation may be brought only against the head of an agency in his official

capacity. See Canino v. United States EEOC, 707 F.2d 468, 472 (11th Cir. 1983).

3 McDonnell Douglas Corp. v. Green, 93 S.Ct. 1817 (1973). 4 The district court recited and applied correctly the “plausibility standard” of review established in Twombly and Iqbal, including the court’s obligation to accept the allegations in Glover’s complaint as true. To the extent Glover challenges the constitutionality of the Supreme Court’s “plausibility standard,” that is no issue for this Court to decide; we are bound by the Supreme Court’s decisions. 7 Case: 14-15427 Date Filed: 09/16/2015 Page: 8 of 10

Thus, the only properly named defendant for Glover’s Title VII claims is

Postmaster General Donahoe, in his official capacity. The district court committed

no error in dismissing Glover’s Title VII claims against the three USPS employees

and against Donahoe in his individual capacity.

About Glover’s Title VII claim for race discrimination (Count One), the

amended complaint creates no plausible inference of discrimination on account of

Glover’s race. Viewing the factual allegations in the amended complaint in the

light most favorable to Glover, the USPS terminated Glover’s employment based

on false accusations by a black woman and a black witness that Glover used a

racial slur and other offensive language while Glover was delivering mail. In other

words, Glover’s employment was terminated because of a customer complaint

about Glover’s conduct, not because of Glover’s race.

Glover contends that (particularly because many of USPS’s decision-makers

are black) the “nature of the charge and the race of those [accusing Glover] caused

the Defendants to be racially prejudiced against the Plaintiff and to act against him

for racially discriminatory reasons . . . .” But Glover has identified no similarly-

situated black employee who made racially-offensive remarks toward a customer

and who was treated more favorably. Glover’s allegations of race discrimination

are purely speculative, and Glover has failed to “nudge[] his claims of invidious

discrimination across the line from conceivable to plausible.” See Iqbal, 129 S.Ct.

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at 1950-51 (quotations omitted). The district court concluded correctly that Glover

failed to state a claim for race discrimination under Title VII.

About Glover’s Title VII retaliation claim (Count Three), Glover failed to

plead sufficient facts from which one could infer plausibly that a causal connection

existed between Glover’s statutorily-protected activity and Defendants’ alleged

retaliatory conduct. “To establish a causal connection, a plaintiff must show that

the decision-makers were aware of the protected conduct, and that the protected

activity and the adverse actions were not wholly unrelated.” Shannon v. BellSouth

Telecomms., Inc., 292 F.3d 712, 716 (11th Cir. 2002). Glover alleges that he twice

requested to speak with the local postmaster and that he called the EEOC to

complain about the spreading of rumors about his conduct. Even assuming

(without deciding) that Glover’s acts constituted statutorily-protected activity, the

amended complaint contains no allegation that the supposed adverse actions

Glover suffered (including a delay in activating his door-entry code, a delay in

receiving backpay, spreading of rumors, and having to continue working the same

route where his accuser lived) were in any way related to Glover’s protected

activity. Nor does Glover allege that the USPS decision-makers knew that Glover

had contacted the EEOC or knew that Glover sought to report to the Postmaster a

Title VII violation.

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Glover has also failed to state a plausible claim under Title VII for hostile

work environment. Taking the facts in the complaint as true and assuming Glover

experienced some harassment, the harassment was not “sufficiently severe or

pervasive to alter the conditions of [Glover’s] employment and create an abusive

working environment.” See Harris v. Forklift Sys., 114 S.Ct. 367, 370 (1993).

About Glover’s Count Four, the district court committed no error in

dismissing Glover’s claim that he was “entitled to obtain relief for all claims

brought to the [EEOC]” when Glover failed to identify the claims he brought to the

EEOC. In addition, to the extent Glover contends that his Count Four constitutes

an alternate statement of his Title VII claims, Title VII is the only means by which

a federal employee may bring a federal claim for illegal discrimination against his

employer. See Canino, 707 F.2d at 472.

The district court also dismissed properly Glover’s Bivens 5 claim (Count

Five). USPS employees are precluded from raising Bivens claims arising from

employment with the USPS. See McCollum v. Bolger, 794 F.2d 602, 607-08 (11th

Cir. 1986).

AFFIRMED.

5 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 91 S.Ct. 1999 (1971). 10