Robert Lewis v. Robert E. Fulmer

• Court: Court of Appeals for the Eleventh Circuit
• Decided: August 19, 2021
• Docket: 20-11906
• Status: Unpublished

Opinion

USCA11 Case: 20-11906 Date Filed: 08/19/2021 Page: 1 of 6

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-11906 Non-Argument Calendar ________________________

D.C. Docket No. 1:20-cv-00287-CLM

ROBERT LEWIS,

Plaintiff - Appellant,

versus

ROBERT E. FULMER, Field Supervisor, CHRISTIE BRINKLEY, Manager, JOHN GILLNEY, Field Supervisor/Retired, JIMMY JOHNS, Plant Director/I.E.I., MICHAEL WEISER, President/CEO,

Defendants - Appellees. USCA11 Case: 20-11906 Date Filed: 08/19/2021 Page: 2 of 6

________________________

Appeal from the United States District Court for the Northern District of Alabama ________________________ (August 19, 2021)

Before JORDAN, ROSENBAUM, and GRANT, Circuit Judges.

PER CURIAM:

Robert Lewis, proceeding pro se, appeals the sua sponte dismissal without

prejudice of his amended complaint for lack of subject matter jurisdiction and failure

to state a plausible claim to relief. After careful review, we affirm.

I.

Lewis filed a pro se lawsuit alleging employment discrimination based on age,

disability, and race following his termination as a security guard by Weiser Security

Services, Inc. Lewis’s complaint, however, did not give details about the

circumstances of his termination. Instead, Lewis alleged that individuals affiliated

with Weiser Security had rear-ended his car, broken into his home, and tried to

poison him, and that Weiser Security had refused to pay him his share of a

settlement—$3.6 million, according to Lewis—in a lawsuit brought by several of

his coworkers. A document attached to the complaint reflects that Weiser Security

terminated Lewis for repeatedly harassing and threatening his supervisor about the

alleged settlement payout.

2 USCA11 Case: 20-11906 Date Filed: 08/19/2021 Page: 3 of 6

Because Lewis sought leave to proceed in forma pauperis, the district court

screened his complaint sua sponte and ordered him to replead his complaint or face

dismissal of the action. See 28 U.S.C. § 1915(e)(2)(B). Stating that the complaint

failed to provide basic facts about Lewis’s employment and termination or “any facts

that indicate discrimination,” the court ordered him to replead his complaint to

correct the pleading defects it noted.

Lewis filed an amended complaint, reiterating allegations from his complaint

and adding that he had not received any promotions or decent pay raises because of

a conspiracy against him, that he was owed incentive pay, that Weiser Security

preferred to hire older security guards because they were less likely to leave, and

that someone had stolen money from his 401(k) retirement account. The district

court found that the same pleading defects remained, so it dismissed the action

without prejudice for lack of subject matter jurisdiction and failure to state a claim

on which relief may be granted. Lewis now appeals.

II.

We review de novo a dismissal for failure to state a claim under 28 U.S.C.

§ 1915(e)(2)(B)(ii), viewing the factual allegations in the complaint as true and

applying the standards of Rule 12(b)(6), Fed. R. Civ. P. Henley v. Payne, 945 F.3d

1320, 1331 (11th Cir. 2019). To survive dismissal under Rule 12(b)(6), a complaint

must contain sufficient factual matter which, accepted as true, plausibly establishes

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that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009).

For the employment-discrimination claims at issue here, that standard means

that the plaintiff must plead facts that plausibly suggest that an adverse employment

action resulted from intentional discrimination on a prohibited basis, such as age,

disability, or race. Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1246 (11th

Cir. 2015); see Age Discrimination in Employment Act, 29 U.S.C. § 623(a)(1);

Americans with Disabilities Act, 42 U.S.C. § 12112; and Title VII, 42 U.S.C. §

2000e-2(a)(1). An adverse employment action is “a significant change in

employment status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change in

benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).

We liberally construe the filings of pro se parties. Timson v. Sampson, 518

F.3d 870, 874 (11th Cir. 2008). Yet we cannot “rewrite an otherwise deficient

pleading in order to sustain an action.” Campbell v. Air Jamaica Ltd., 760 F.3d

1165, 1168–69 (11th Cir. 2014). Even with liberal construction, “issues not briefed

on appeal by a pro se litigant are deemed abandoned.” Timson, 518 F.3d at 874.

Liberally construing Lewis’s brief, we can’t tell that he makes any argument

about the district court’s judgment. The brief restates many of the same factual

claims as his amended complaint about mistreatment by Weiser Security employees

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and unpaid wages and settlement proceeds. It also alleges a conspiracy between

Weiser Security and Honeywell Aerospace, the nature of which is not clear. But it

does not reference the district court’s decision or its reasons for dismissing the

lawsuit. Because Lewis “fails to challenge properly on appeal . . . the grounds on

which the district court based its judgment,” he has abandoned any challenge to the

judgment. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.

2014); see Timson, 518 F.3d at 874.

In any case, the district court correctly dismissed the amended complaint for

failure to state a claim because it fails to plausibly suggest that any mistreatment

Lewis suffered was motivated by his age, disability, or race.1 See Nix v. WLCY

Radio/Rahall Commc’ns, 738 F.3d 1181, 1187 (11th Cir. 1984) (stating that Title

VII—like other federal employment-discrimination statutes—prohibits

discrimination based on only specific, protected grounds and “is not a shield against

harsh treatment at the workplace”).

Lewis appears to claim that Weiser Security preferred older workers because

they were less likely to leave the company in the face of poor treatment, but he does

not offer any factual allegations to support that suspicion or to connect it to an

1 Though it found otherwise, the district court had federal-question jurisdiction because Lewis’s claims—though not sufficient to survive dismissal under Rule 12(b)(6)—arose under federal employment-discrimination statutes. See Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 807–08 (1986). 5 USCA11 Case: 20-11906 Date Filed: 08/19/2021 Page: 6 of 6

employment decision that harmed him. See Surtain, 789 F.3d at 1246; Oxford Asset

Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002) (“[C]onclusory

allegations, unwarranted deductions of facts or legal conclusions masquerading as

facts will not prevent dismissal.”). And the allegations concerning his low wages,

lack of promotions, missing settlement payout, and October 2019 termination are

too sparse, disjointed, and vague to suggest that these events were based on his

disability or race, which are unknown, or his age.2 Accordingly, the amended

complaint did not state a plausible claim of unlawful discrimination.

For these reasons, we affirm the dismissal of Lewis’s amended complaint.

AFFIRMED.

2 The same is true of Lewis’s allegations of a criminal conspiracy to assault and poison him, but it is unclear how these events relate to his employment with, or could be attributed to, Weiser Security. See, e.g., Ellerth, 524 U.S. at 762 (“A tangible employment decision requires an official act of the enterprise, a company act.”). Nevertheless, our decision here does not foreclose Lewis from seeking relief under state law for the alleged unlawful conduct. 6