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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-10172
Non-Argument Calendar
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D.C. Docket No. 3:12-cv-00588-RS-EMT
STEPHANIE M. BLACKMON,
Plaintiff-Appellant,
versus
ESCAMBIA COUNTY SCHOOL BOARD,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Florida
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(June 12, 2014)
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Before HULL, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Stephanie Blackmon appeals pro se the summary judgment in favor of the
Escambia County School Board and against her claims under federal law, and the
dismissal without prejudice of her claims under state law. Blackmon complained
that the Board refused to rehire her because she was African-American, in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), and of her
right to “make and enforce contracts,” id. § 1981; the Board retaliated after she
declined a particular bus route, see id. § 2000e-3; its employees conspired to
“blackball” her as a school bus driver in interference with her civil rights, see id.
§§ 1983, 1985; the Board harassed her; and the Board defamed and slandered her
in violation of state law. The district court ruled that Blackmon failed to establish
a prima facie case of discrimination; she failed to exhaust her claim of retaliation;
she failed to present evidence that a custom or policy of the Board violated her
civil rights; and a federal statute cited by her, 18 U.S.C. § 1514, provided no
private right of action for harassment. The district court declined to exercise
supplemental jurisdiction over Blackmon’s remaining claims under state law. We
affirm.
The district court did not err by entering summary judgment against
Blackmon’s complaint of discrimination. To establish a prima facie case under
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Title VII and section 1981, Blackmon had to prove that she was a member of a
protected class who applied for a position; she was qualified for the position
sought; she was not hired; and the position remained unfilled or was filled with a
person outside of her protected class. See EEOC v. Joe’s Stone Crabs, Inc., 296
F.3d 1265, 1273 (11th Cir. 2002); Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318,
1330 (11th Cir. 1998). Although Blackmon, an African-American, established
that, in 2012, the Board twice refused to offer her positions as a school bus driver,
she failed to establish that the Board filled the positions with drivers who were not
African-American. See Joe’s Stone Crabs, 296 F.3d at 1273. Moreover, even if
we were to assume that Blackmon established a prima facie case, she failed to
prove that the race-neutral reason given for refusing to hire her was a pretext for
discrimination. Terry McKnight, an employee of the Board, testified that he
refused to hire Blackmon because she had been “unreliable in the past.” And
Blackmon testified that she accepted driver’s training from the Board in 2006,
2009, and 2011, after which she, respectively, declined the position offered to her;
took sick leave and accepted a position with another employer without resigning or
notifying the Board; and drove a few months and then refused to return telephone
calls from the Board. Blackmon accused the Board of discrimination, but her
“[s]peculation [did] not create a genuine issue of fact” about the reason she was not
rehired, see Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005).
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The district court correctly entered summary judgment in favor of the Board
and against Blackmon’s complaint of retaliation. Blackmon failed to mention
retaliation in the charge that she filed with the Equal Employment Opportunity
Commission, and that failure to exhaust was fatal to her complaint about
retaliation. See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001)
(“Before a potential plaintiff may sue for discrimination under Title VII, she must
first exhaust her administrative remedies.”). Furthermore, Blackmon failed to
establish a prima facie case of retaliation because she failed to allege that her
employment related to her participation in a protected activity. See Crawford v.
Carroll, 529 F.3d 961, 970 (11th Cir. 2008). Blackmon alleged that the Board
retaliated against her because she refused to accept a bus route for a particular
school, but her refusal to accept that route is not an activity protected under Title
VII, see 42 U.S.C. § 2000e–3(a).
The district court also correctly entered summary judgment in favor of the
Board and against Blackmon’s complaints of conspiracy and harassment.
Blackmon alleged that employees of the Board conspired to interfere with her civil
rights, but she failed to present any evidence of a custom or policy of the Board
that injured her, see McDowell v. Brown, 392 F.3d 1283, 1289 (11th Cir. 2004).
The Board cannot held liable “solely because it employs a tortfeasor, that is, under
a respondeat superior theory.” McMillian v. Johnson, 88 F.3d 1573, 1577 (11th
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Cir. 1996) (citing Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S.
Ct. 2018, 2036 (1978)). And Blackmon alleged that employees harassed her in
violation of a federal law, 18 U.S.C. § 1514, but that statute involves the issuance
of orders to protect victims or witnesses in criminal proceedings. The statute
creates no private right of action.
The district court did not err when it declined to exercise supplemental
jurisdiction over Blackmon’s claims under state law. A district court may decline
to exercise supplemental jurisdiction over a claim after dismissing all claims over
which it has original jurisdiction. 28 U.S.C. § 1367(c)(3). We “encourage[ ]
district courts to dismiss any remaining state claims when, as here, the federal
claims have been dismissed prior to trial.” Raney v. Allstate Ins. Co., 370 F.3d
1086, 1089 (11th Cir. 2004).
We AFFIRM the summary judgment in favor of the Board.
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