USCA11 Case: 20-10929 Date Filed: 10/25/2021 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals For the Eleventh Circuit
____________________
No. 20-10929 Non-Argument Calendar ____________________
RESHAWN ARMSTRONG, Plaintiff-Appellant, versus U.S. ATTORNEY GENERAL,
Defendant-Appellee,
DEPARTMENT OF JUSTICE, et al., USCA11 Case: 20-10929 Date Filed: 10/25/2021 Page: 2 of 11
2 Opinion of the Court 20-10929
Defendants.
Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 7:17-cv-01857-LSC ____________________
Before LAGOA, BRASHER, and ED CARNES, Circuit Judges. PER CURIAM:
Reshawn Armstrong, proceeding pro se, appeals the district
court’s grant of summary judgment to the United States Attorney
General on Armstrong’s Title VII sex discrimination, retaliation,
and hostile work environment claims, and on her claim of a viola-
tion of the Fair Labor Standards Act (FLSA). She also challenges
the denial of her motion for sanctions and her motion for judicial
notice and asserts that the district court engaged in improper ex
parte communications with the Attorney General. USCA11 Case: 20-10929 Date Filed: 10/25/2021 Page: 3 of 11
20-10929 Opinion of the Court 3
I.
Armstrong is a corrections officer for the Federal Bureau of
Prisons (BOP) and is by all accounts a good employee. Although
she received positive performance reviews for her work, in 2013
Armstrong was arrested for domestic violence, which led the Of-
fice of Internal Affairs (OIA) to open an investigation into her
conduct. The charges against Armstrong were dropped shortly
after her arrest, but the internal affairs investigation continued.
In March 2015 Armstrong began applying for various BOP
positions at prisons in other states, seeking a promotion or trans-
fer. Armstrong was qualified for each position for which she ap-
plied, but she was not selected for any of them. She suspected
that because she is a female her supervisors were intentionally
sabotaging her applications during the “reference check” process.
She filed a charge with the EEOC and, eventually, this lawsuit. USCA11 Case: 20-10929 Date Filed: 10/25/2021 Page: 4 of 11
4 Opinion of the Court 20-10929
The district court determined that Armstrong had presented no
evidence to support any of her claims and granted summary
judgment against her. In the same order, the district court denied
Armstrong’s pending motions for judicial notice and for sanctions
against the Attorney General. This is Armstrong’s appeal. 1
1 The only claim that Armstrong has fully addressed in this appeal is the one arising from her challenge to the district court’s conclusion that she failed to establish a prima facie case of Title VII discrimination based on the circum- stantial evidence she presented. Any other claims are forfeited. Armstrong does contend in her brief that she presented direct evidence of Title VII discrimination and an FLSA violation, but she raises those conten- tions only “in a perfunctory manner without supporting arguments and au- thority,” and as a result, she has forfeited them. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680–81 (11th Cir. 2014); see also Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (“While we read briefs filed by pro se liti- gants liberally, issues not briefed on appeal by a pro se litigant are deemed abandoned.”). She forfeited any issues about her Title VII retaliation and hostile work environment claims because she raised them for the first time in her reply brief. See Timson, 518 F.3d at 874 (“[W]e do not address argu- ments raised for the first time in a pro se litigant’s reply brief.”). Finally, she argues that the district court engaged in improper ex parte com- munications with the Attorney General and that it intimidated Armstrong into voluntarily dismissing several of her claims. She raised neither of those issues in the district court, and we will not consider them for the first time on appeal. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004); Wiersum v. U.S. Bank, N.A., 785 F.3d 483, 491 n.9 (11th Cir. 2015) USCA11 Case: 20-10929 Date Filed: 10/25/2021 Page: 5 of 11
20-10929 Opinion of the Court 5
II.
Armstrong contends that the district court erred in finding
that she had not established a prima facie case of Title VII sex dis-
crimination under McDonnell Douglas. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). To establish a prima fa-
cie case under the McDonnell Douglas framework Armstrong
must, among other things, present evidence that the BOP treated
a similarly situated employee more favorably than it treated her.
Lewis v. City of Union City, 918 F.3d 1213, 1220 (11th Cir. 2019)
(en banc). To satisfy the test, she and the comparator must be
“similarly situated in all material respects.” Id. at 1226. Usually,
this means that the comparator “will share the plaintiff’s em-
(holding that a pro se plaintiff had forfeited an argument that he raised for the first time on appeal). In any event, Armstrong has pointed to absolutely no evidence that the district court either engaged in improper ex parte communications or coerced her to dismiss some of her claims. USCA11 Case: 20-10929 Date Filed: 10/25/2021 Page: 6 of 11
6 Opinion of the Court 20-10929
ployment or disciplinary history.” Id. at 1228. The district court
determined that Armstrong had presented no evidence of a simi-
larly situated comparator.
The one comparator Armstrong points to is Randolph
King, who is male. Armstrong argues that the district court im-
properly considered her arrest history and the OIA investigation
in determining that King was not similarly situated with Arm-
strong when the BOP hired him for a job for which she had also
applied. Armstrong has presented no evidence that King had an
arrest record or had been subject to an OIA investigation, as she
had been. She argues that she was not actually subject to discipli-
nary action at all. Perhaps not, but the undisputed evidence is
that she was arrested for domestic violence and subject to an OIA
investigation when she applied for the position that King ulti-
mately filled. That is enough to prevent King from being similar- USCA11 Case: 20-10929 Date Filed: 10/25/2021 Page: 7 of 11
20-10929 Opinion of the Court 7
ly situated to her in all relevant respects. The district court
properly entered summary judgment against her on this claim.
III.
Armstrong contends that the district court erred by deny-
ing her motion for sanctions. We review “all aspects of a district
court’s Rule 11 determination” only for an abuse of discretion.
Smith v. Psychiatric Sols., Inc., 750 F.3d 1253, 1260 (11th Cir.
2014).
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USCA11 Case: 20-10929 Date Filed: 10/25/2021 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals For the Eleventh Circuit
____________________
No. 20-10929 Non-Argument Calendar ____________________
RESHAWN ARMSTRONG, Plaintiff-Appellant, versus U.S. ATTORNEY GENERAL,
Defendant-Appellee,
DEPARTMENT OF JUSTICE, et al., USCA11 Case: 20-10929 Date Filed: 10/25/2021 Page: 2 of 11
2 Opinion of the Court 20-10929
Defendants.
Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 7:17-cv-01857-LSC ____________________
Before LAGOA, BRASHER, and ED CARNES, Circuit Judges. PER CURIAM:
Reshawn Armstrong, proceeding pro se, appeals the district
court’s grant of summary judgment to the United States Attorney
General on Armstrong’s Title VII sex discrimination, retaliation,
and hostile work environment claims, and on her claim of a viola-
tion of the Fair Labor Standards Act (FLSA). She also challenges
the denial of her motion for sanctions and her motion for judicial
notice and asserts that the district court engaged in improper ex
parte communications with the Attorney General. USCA11 Case: 20-10929 Date Filed: 10/25/2021 Page: 3 of 11
20-10929 Opinion of the Court 3
I.
Armstrong is a corrections officer for the Federal Bureau of
Prisons (BOP) and is by all accounts a good employee. Although
she received positive performance reviews for her work, in 2013
Armstrong was arrested for domestic violence, which led the Of-
fice of Internal Affairs (OIA) to open an investigation into her
conduct. The charges against Armstrong were dropped shortly
after her arrest, but the internal affairs investigation continued.
In March 2015 Armstrong began applying for various BOP
positions at prisons in other states, seeking a promotion or trans-
fer. Armstrong was qualified for each position for which she ap-
plied, but she was not selected for any of them. She suspected
that because she is a female her supervisors were intentionally
sabotaging her applications during the “reference check” process.
She filed a charge with the EEOC and, eventually, this lawsuit. USCA11 Case: 20-10929 Date Filed: 10/25/2021 Page: 4 of 11
4 Opinion of the Court 20-10929
The district court determined that Armstrong had presented no
evidence to support any of her claims and granted summary
judgment against her. In the same order, the district court denied
Armstrong’s pending motions for judicial notice and for sanctions
against the Attorney General. This is Armstrong’s appeal. 1
1 The only claim that Armstrong has fully addressed in this appeal is the one arising from her challenge to the district court’s conclusion that she failed to establish a prima facie case of Title VII discrimination based on the circum- stantial evidence she presented. Any other claims are forfeited. Armstrong does contend in her brief that she presented direct evidence of Title VII discrimination and an FLSA violation, but she raises those conten- tions only “in a perfunctory manner without supporting arguments and au- thority,” and as a result, she has forfeited them. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680–81 (11th Cir. 2014); see also Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (“While we read briefs filed by pro se liti- gants liberally, issues not briefed on appeal by a pro se litigant are deemed abandoned.”). She forfeited any issues about her Title VII retaliation and hostile work environment claims because she raised them for the first time in her reply brief. See Timson, 518 F.3d at 874 (“[W]e do not address argu- ments raised for the first time in a pro se litigant’s reply brief.”). Finally, she argues that the district court engaged in improper ex parte com- munications with the Attorney General and that it intimidated Armstrong into voluntarily dismissing several of her claims. She raised neither of those issues in the district court, and we will not consider them for the first time on appeal. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004); Wiersum v. U.S. Bank, N.A., 785 F.3d 483, 491 n.9 (11th Cir. 2015) USCA11 Case: 20-10929 Date Filed: 10/25/2021 Page: 5 of 11
20-10929 Opinion of the Court 5
II.
Armstrong contends that the district court erred in finding
that she had not established a prima facie case of Title VII sex dis-
crimination under McDonnell Douglas. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973). To establish a prima fa-
cie case under the McDonnell Douglas framework Armstrong
must, among other things, present evidence that the BOP treated
a similarly situated employee more favorably than it treated her.
Lewis v. City of Union City, 918 F.3d 1213, 1220 (11th Cir. 2019)
(en banc). To satisfy the test, she and the comparator must be
“similarly situated in all material respects.” Id. at 1226. Usually,
this means that the comparator “will share the plaintiff’s em-
(holding that a pro se plaintiff had forfeited an argument that he raised for the first time on appeal). In any event, Armstrong has pointed to absolutely no evidence that the district court either engaged in improper ex parte communications or coerced her to dismiss some of her claims. USCA11 Case: 20-10929 Date Filed: 10/25/2021 Page: 6 of 11
6 Opinion of the Court 20-10929
ployment or disciplinary history.” Id. at 1228. The district court
determined that Armstrong had presented no evidence of a simi-
larly situated comparator.
The one comparator Armstrong points to is Randolph
King, who is male. Armstrong argues that the district court im-
properly considered her arrest history and the OIA investigation
in determining that King was not similarly situated with Arm-
strong when the BOP hired him for a job for which she had also
applied. Armstrong has presented no evidence that King had an
arrest record or had been subject to an OIA investigation, as she
had been. She argues that she was not actually subject to discipli-
nary action at all. Perhaps not, but the undisputed evidence is
that she was arrested for domestic violence and subject to an OIA
investigation when she applied for the position that King ulti-
mately filled. That is enough to prevent King from being similar- USCA11 Case: 20-10929 Date Filed: 10/25/2021 Page: 7 of 11
20-10929 Opinion of the Court 7
ly situated to her in all relevant respects. The district court
properly entered summary judgment against her on this claim.
III.
Armstrong contends that the district court erred by deny-
ing her motion for sanctions. We review “all aspects of a district
court’s Rule 11 determination” only for an abuse of discretion.
Smith v. Psychiatric Sols., Inc., 750 F.3d 1253, 1260 (11th Cir.
2014). That means that “we must affirm unless we find that the
district court has made a clear error of judgment[] or has applied
the wrong legal standard.” Amlong & Amlong, P.A. v. Denny’s,
Inc., 500 F.3d 1230, 1238 (11th Cir. 2007). “Rule 11 sanctions are
warranted when a party files a pleading that (1) has no reasonable
factual basis; (2) is based on a legal theory that has no reasonable
chance of success and that cannot be advanced as a reasonable ar-
gument to change existing law; and (3) is filed in bad faith for an USCA11 Case: 20-10929 Date Filed: 10/25/2021 Page: 8 of 11
8 Opinion of the Court 20-10929
improper purpose.” Baker v. Alderman, 158 F.3d 516, 524 (11th
Cir. 1998).
Armstrong asserts that the Attorney General altered her
deposition and filed his motion for summary judgment in bad
faith. But she presents no evidence that her deposition was al-
tered or that the Attorney General acted in bad faith. His action
in filing the motion was not sanctionable because it had a reason-
able factual basis and was based on a legal theory with more than
“a reasonable chance of success.” See Baker, 158 F.3d at 524. Its
success is obvious from the fact that the district court properly
granted summary judgment in the Attorney General’s favor. The
district court did not abuse its discretion in denying Armstrong’s
motion for sanctions.
IV. USCA11 Case: 20-10929 Date Filed: 10/25/2021 Page: 9 of 11
20-10929 Opinion of the Court 9
Finally, Armstrong challenges the district court’s denial of
her motion requesting it to take judicial notice. We review that
ruling only for an abuse of discretion. Paez v. Sec’y, Fla. Dep’t of
Corr., 947 F.3d 649, 651 (11th Cir. 2020). Federal Rule of Evi-
dence 201(b) states that a “court may judicially notice a fact that is
not subject to reasonable dispute because it: (1) is generally
known within the trial court’s territorial jurisdiction; or (2) can be
accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Fed. R. Evid. 201(b). Rule 201
also requires that courts give parties an “opportunity to be heard
after the court takes judicial notice.” Paez, 947 F.3d at 652; Fed.
R. Evid. 201(e) (“On timely request, a party is entitled to be heard
on the propriety of taking judicial notice and the nature of the fact
to be noticed. If the court takes judicial notice before notifying a
party, the party, on request, is still entitled to be heard.”) USCA11 Case: 20-10929 Date Filed: 10/25/2021 Page: 10 of 11
10 Opinion of the Court 20-10929
The district court did not abuse its discretion in denying
Armstrong’s motion. The facts Armstrong asked the court to no-
tice — many of which were disputed by the Attorney General —
were not generally known in the district court’s territorial juris-
diction and could not be accurately and readily determined from
reliable sources. See Fed. R. Evid. 201(b). And although courts
must, upon request, give parties an opportunity to be heard after
taking judicial notice of a fact, id., the court did not take judicial
notice of any fact. It was not an abuse of discretion to deny Arm-
strong’s motion without a hearing.
AFFIRMED. 2
2 The district court’s summary judgment order taxed costs to Armstrong, and she appealed that order and mentioned costs in her notice of appeal. After that, the district court granted the Attorney General’s bill of costs. In- stead of amending her notice of appeal to include the order awarding costs, Armstrong sought to file a supplemental brief challenging the award. This Court granted her request to file the supplemental brief but carried with the case the question of jurisdiction. The Attorney General filed a supplemental response brief. We may construe Armstrong’s pro se supplemental brief as USCA11 Case: 20-10929 Date Filed: 10/25/2021 Page: 11 of 11
20-10929 Opinion of the Court 11
an amendment to her notice of appeal, and we have jurisdiction to consider her challenge to the award of costs. See Finch v. City of Vernon, 845 F.2d 256, 259 (11th Cir. 1988). The district court awarded the Attorney General costs for printing and for a transcript of Armstrong’s deposition. Generally, “costs — other than attor- ney’s fees — should be allowed to the prevailing party.” Fed. R. Civ. P. 54(d)(1); see also Mathews v. Crosby, 480 F.3d 1265, 1276 (11th Cir. 2007) (Under Rule 54(d), there is a strong presumption that the prevailing party will be awarded costs.”). The court did not abuse its discretion in awarding costs, and that part of its judgment is also AFFIRMED.