Case: 18-11581 Date Filed: 07/30/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-11581 Non-Argument Calendar ________________________
D.C. Docket No. 1:17-cv-03239-LMM
TRACY L. CHAMBERS,
Plaintiff-Appellant, versus CHEROKEE COUNTY, LORI THOMPSON, JERRY COOPER, Defendants-Appellees.
__________________________
Appeal from the United States District Court for the Northern District of Georgia _________________________
(July 30, 2018)
Before MARCUS, NEWSOM, and JULIE CARNES, Circuit Judges.
PER CURIAM: Case: 18-11581 Date Filed: 07/30/2018 Page: 2 of 7
The district court granted Defendants’ Rule 12(b)(6) Motions to Dismiss for
Failure to State a Claim and Plaintiff Tracy Chambers timely appealed. After
careful consideration, we affirm.
I
At the time that she filed her Amended Complaint, Chambers was a
Certified Employee Benefits Specialist with a Georgia insurance license and
worked for Defendant Cherokee County as a Benefits and Compensation Manager.
Among other tasks, Chambers’ duties included counseling and managing
employees regarding personnel-benefits matters, negotiating with brokers and
vendors regarding healthcare budgeting, analyzing benefits plans, and reporting
benefit-plan-related problems to the county commissioners.
According to Chambers’ Amended Complaint—the contents of which we
accept as true when reviewing the district court’s grant of defendants’ motion to
dismiss, see, e.g., Corsello v. Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir.
2005)—Defendant Jerry Cooper, the Cherokee County Manager, “hired Defendant
Lori Thompson as the Human Resources Director for Cherokee County” even
though “Defendant Thompson had neither the training nor the experience for the
position.” Cooper then “ordered [Chambers] that she should not make any reports
to the county commissioners,” an order that “required [Chambers] to not carry out
her duties and not fulfill her fiduciary duty to the county.” Furthermore,
2 Case: 18-11581 Date Filed: 07/30/2018 Page: 3 of 7
“Defendants Cooper and Thompson began making demands on [Chambers] that
were improper and in some cases illegal,” and “[w]hen [Chambers] refused to
violate the law, Defendant Cooper began to harass her at work.” This alleged
harassment took the form of complaints about Chambers’ performance and
unwarranted withholding of a $5,000 raise. Finally, Thompson and Cooper
eventually terminated Chambers, the “published reason” for which “was that she
was guilty of violation of policy, unethical conduct, gross conflict of interest that
might rise to the level of theft, providing untruthful information for an employee,
and insurance fraud.”
Based on the above allegations, Chambers filed suit alleging the following
causes of action against Cherokee County, Thompson, and Cooper (together,
“Defendants”): (1) “conspiracy to deprive [Chambers] of her constitutional rights
to equal protection and due process of law”; (2) “depriv[ation] of [Chambers’]
rights to freedom of speech”; (3) violations of O.C.G.A. § 45-1-4, the Georgia
Whistleblower statute; (4) breach of contract; and (5) violation of Chambers’
“constitutional rights to due process and equal protection” because Defendants
made false criminal charges “in retaliation for [Chambers] filing the original
complaint.” In response, Defendants filed two Motions to Dismiss for Failure to
State a Claim—one from Cherokee County and one from Thompson and Cooper—
which the district court considered collectively and eventually granted.
3 Case: 18-11581 Date Filed: 07/30/2018 Page: 4 of 7
In granting Defendants’ 12(b)(6) motions, the district court determined that
Chambers had “fail[ed] to respond to Defendants’ equal protection, due process,
and conspiracy arguments” and had therefore abandoned those claims. Regarding
Chambers’ First Amendment argument, the district court determined that
Chambers “neither spoke as a citizen nor on a matter of public concern, barring her
from stating a First Amendment retaliation claim.” The court then declined to
exercise supplemental jurisdiction over Chambers’ two state-law claims (Counts 3
and 4—violation of a Georgia statute and breach of contract, respectively) and
dismissed them without prejudice. Chambers timely appealed.
II
“[T]his Court reviews de novo a dismissal for failure to state a claim upon
which relief may be granted. On a motion to dismiss for failure to state a claim,
we accept as true the facts as alleged in the complaint.” Corsell, 428 F.3d at 1012
(internal citations, quotation marks omitted).
A
The district court correctly determined that Chambers abandoned her equal
protection, due process, and conspiracy arguments by failing to address
Defendants’ contentions against them before the district court. See, e.g., Coal. for
the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326
(11th Cir. 2000) (“The appellants’ failure to brief and argue this issue during the
4 Case: 18-11581 Date Filed: 07/30/2018 Page: 5 of 7
proceedings before the district court is grounds for finding that the issue has been
abandoned.”). 1 Moreover, Chambers’ opening brief on appeal fails to contest the
district court’s abandonment determination, providing this Court an alternative
ground to affirm the abandonment of those claims. See Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (“When an appellant fails to
challenge properly on appeal one of the grounds on which the district court based
its judgment, he is deemed to have abandoned any challenge of that ground, and it
follows that the judgment is due to be affirmed.”).
B
Nor did the district court err in dismissing Chambers’ First Amendment
argument for failure to state a claim. “[T]he law is well-established that the state
may not demote or discharge a public employee in retaliation for speech protected
under the [F]irst [A]mendment.” Bryson v. City of Waycross, 888 F.2d 1562, 1565
(11th Cir. 1989). But “[w]hen a citizen enters government service, the citizen by
necessity must accept certain limitations on his or her freedom.” Garcetti v.
1 Additionally, we disagree with Chambers’ assertion that because Defendant Cherokee County attached exhibits to its motion to dismiss (specifically, the exhibits contained certified copies of the County’s personnel policies manual, the notice of termination letter sent to Plaintiff, and the letter from County Manager Jerry Cooper to Plaintiff upholding Plaintiff’s termination the district court necessarily “violated the standard of review.” Br. of Appellant at 10-12. First, Chambers points to nothing in the district court’s opinion to suggest that the court relied on any material beyond Chambers’ Amended Complaint.
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Case: 18-11581 Date Filed: 07/30/2018 Page: 1 of 7
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-11581 Non-Argument Calendar ________________________
D.C. Docket No. 1:17-cv-03239-LMM
TRACY L. CHAMBERS,
Plaintiff-Appellant, versus CHEROKEE COUNTY, LORI THOMPSON, JERRY COOPER, Defendants-Appellees.
__________________________
Appeal from the United States District Court for the Northern District of Georgia _________________________
(July 30, 2018)
Before MARCUS, NEWSOM, and JULIE CARNES, Circuit Judges.
PER CURIAM: Case: 18-11581 Date Filed: 07/30/2018 Page: 2 of 7
The district court granted Defendants’ Rule 12(b)(6) Motions to Dismiss for
Failure to State a Claim and Plaintiff Tracy Chambers timely appealed. After
careful consideration, we affirm.
I
At the time that she filed her Amended Complaint, Chambers was a
Certified Employee Benefits Specialist with a Georgia insurance license and
worked for Defendant Cherokee County as a Benefits and Compensation Manager.
Among other tasks, Chambers’ duties included counseling and managing
employees regarding personnel-benefits matters, negotiating with brokers and
vendors regarding healthcare budgeting, analyzing benefits plans, and reporting
benefit-plan-related problems to the county commissioners.
According to Chambers’ Amended Complaint—the contents of which we
accept as true when reviewing the district court’s grant of defendants’ motion to
dismiss, see, e.g., Corsello v. Lincare, Inc., 428 F.3d 1008, 1012 (11th Cir.
2005)—Defendant Jerry Cooper, the Cherokee County Manager, “hired Defendant
Lori Thompson as the Human Resources Director for Cherokee County” even
though “Defendant Thompson had neither the training nor the experience for the
position.” Cooper then “ordered [Chambers] that she should not make any reports
to the county commissioners,” an order that “required [Chambers] to not carry out
her duties and not fulfill her fiduciary duty to the county.” Furthermore,
2 Case: 18-11581 Date Filed: 07/30/2018 Page: 3 of 7
“Defendants Cooper and Thompson began making demands on [Chambers] that
were improper and in some cases illegal,” and “[w]hen [Chambers] refused to
violate the law, Defendant Cooper began to harass her at work.” This alleged
harassment took the form of complaints about Chambers’ performance and
unwarranted withholding of a $5,000 raise. Finally, Thompson and Cooper
eventually terminated Chambers, the “published reason” for which “was that she
was guilty of violation of policy, unethical conduct, gross conflict of interest that
might rise to the level of theft, providing untruthful information for an employee,
and insurance fraud.”
Based on the above allegations, Chambers filed suit alleging the following
causes of action against Cherokee County, Thompson, and Cooper (together,
“Defendants”): (1) “conspiracy to deprive [Chambers] of her constitutional rights
to equal protection and due process of law”; (2) “depriv[ation] of [Chambers’]
rights to freedom of speech”; (3) violations of O.C.G.A. § 45-1-4, the Georgia
Whistleblower statute; (4) breach of contract; and (5) violation of Chambers’
“constitutional rights to due process and equal protection” because Defendants
made false criminal charges “in retaliation for [Chambers] filing the original
complaint.” In response, Defendants filed two Motions to Dismiss for Failure to
State a Claim—one from Cherokee County and one from Thompson and Cooper—
which the district court considered collectively and eventually granted.
3 Case: 18-11581 Date Filed: 07/30/2018 Page: 4 of 7
In granting Defendants’ 12(b)(6) motions, the district court determined that
Chambers had “fail[ed] to respond to Defendants’ equal protection, due process,
and conspiracy arguments” and had therefore abandoned those claims. Regarding
Chambers’ First Amendment argument, the district court determined that
Chambers “neither spoke as a citizen nor on a matter of public concern, barring her
from stating a First Amendment retaliation claim.” The court then declined to
exercise supplemental jurisdiction over Chambers’ two state-law claims (Counts 3
and 4—violation of a Georgia statute and breach of contract, respectively) and
dismissed them without prejudice. Chambers timely appealed.
II
“[T]his Court reviews de novo a dismissal for failure to state a claim upon
which relief may be granted. On a motion to dismiss for failure to state a claim,
we accept as true the facts as alleged in the complaint.” Corsell, 428 F.3d at 1012
(internal citations, quotation marks omitted).
A
The district court correctly determined that Chambers abandoned her equal
protection, due process, and conspiracy arguments by failing to address
Defendants’ contentions against them before the district court. See, e.g., Coal. for
the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326
(11th Cir. 2000) (“The appellants’ failure to brief and argue this issue during the
4 Case: 18-11581 Date Filed: 07/30/2018 Page: 5 of 7
proceedings before the district court is grounds for finding that the issue has been
abandoned.”). 1 Moreover, Chambers’ opening brief on appeal fails to contest the
district court’s abandonment determination, providing this Court an alternative
ground to affirm the abandonment of those claims. See Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (“When an appellant fails to
challenge properly on appeal one of the grounds on which the district court based
its judgment, he is deemed to have abandoned any challenge of that ground, and it
follows that the judgment is due to be affirmed.”).
B
Nor did the district court err in dismissing Chambers’ First Amendment
argument for failure to state a claim. “[T]he law is well-established that the state
may not demote or discharge a public employee in retaliation for speech protected
under the [F]irst [A]mendment.” Bryson v. City of Waycross, 888 F.2d 1562, 1565
(11th Cir. 1989). But “[w]hen a citizen enters government service, the citizen by
necessity must accept certain limitations on his or her freedom.” Garcetti v.
1 Additionally, we disagree with Chambers’ assertion that because Defendant Cherokee County attached exhibits to its motion to dismiss (specifically, the exhibits contained certified copies of the County’s personnel policies manual, the notice of termination letter sent to Plaintiff, and the letter from County Manager Jerry Cooper to Plaintiff upholding Plaintiff’s termination the district court necessarily “violated the standard of review.” Br. of Appellant at 10-12. First, Chambers points to nothing in the district court’s opinion to suggest that the court relied on any material beyond Chambers’ Amended Complaint. But even if the district court had relied on those exhibits, under our Court’s “incorporation by reference” doctrine Chambers’ failure to challenge the documents’ authenticity would have permitted the district court to properly incorporate the documents by reference into the Amended Complaint. See Horsley v. Feldt, 304 F.3d 1125, 1134 (11th Cir. 2002).
5 Case: 18-11581 Date Filed: 07/30/2018 Page: 6 of 7
Ceballos, 547 U.S. 410 (2006). “To state a claim that a government employer took
disciplinary action in retaliation for constitutionally protected speech, a public
employee must prove, as a threshold matter, that the employee spoke as a citizen
on a matter of public concern.” Abdur-Rahman v. Walker, 567 F.3d 1278, 1281–
82 (11th Cir. 2009). As in Walker, “[t]his appeal turns on that threshold inquiry,”
id. at 1282, for “when public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for First Amendment purposes,
and the Constitution does not insulate their communications from employer
discipline,” Garcetti, 547 U.S. at 421.
Here, Chambers alleges that Defendants terminated her in retaliation for her
free speech, thus violating the First Amendment. Importantly, the speech at issue
in Chambers’ Amended Complaint is her speech to county personnel and
commissioners. But as she acknowledges in her Amended Complaint, this speech
is part of her job. Because Chambers’ Amended Complaint does not allege that
she was speaking or attempting to speak as a private citizen on a matter of public
concern, and because her speech fell squarely within the scope of her official
duties, her allegations do not implicate the First Amendment’s protections.
C
And finally, the district court did not abuse its discretion when it declined to
exercise supplemental jurisdiction over Chambers’ state-law claims. “A district
6 Case: 18-11581 Date Filed: 07/30/2018 Page: 7 of 7
court has discretion to dismiss state-law claims when ‘all claims over which it has
original jurisdiction’ have been dismissed.” Crosby v. Paulk, 187 F.3d 1339, 1352
(11th Cir. 1999) (citing 28 U.S.C. § 1367(c)(3)). Here, the district court
thoroughly analyzed and properly dismissed each of Chambers’ claims arising
under federal law. Because Georgia law applies to claims arising under Georgia
statutes and Georgia contract law, the district court was well within its discretion to
dismiss those remaining claims without prejudice.
III
For the foregoing reasons, we AFFIRM the district court’s judgment.