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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15217
Non-Argument Calendar
________________________
D.C. Docket No. 2:13-cv-14263-JEM
CURTIS SHERROD,
In Proper Person Individually,
Plaintiff-Appellant,
versus
THE BOARD OF ST. LUCIE COUNTY,
Individually and Officially,
MICHAEL J. LANNON,
individually and officially in his capacity
as Superintendent of SCSB,
BARBARA SLAGA,
individually and officially as Asst. Superintendent
of Student Services and Exceptional Student
Education,
WILLIE MAE CLARK,
individually and officially as Asst. Principal at the
Fort Pierce Regional Detention Center.,
TELISHA A. JONES,
individually and officially as Lead Teacher and
Exceptional Student Education Chair
at the FPRDC, et al.,
Defendants-Appellees.
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________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(December 11, 2015)
Before ED CARNES, Chief Judge, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Curtis Sherrod’s employer denied him a requested medical accommodation,
a midyear performance evaluation, and, eventually, a new employment contract.
Sherrod says those decisions were made for impermissible discriminatory and
retaliatory reasons. A federal district court disagreed and so do we.
The School Board of St. Lucie County (the Board) hired Sherrod, a black
man who suffers from lupus, to teach history at the Fort Pierce Regional Detention
Center (the School). The Board hired Sherrod in 2007 on an annual contract. He
was the only black male teacher at the School.
According to Sherrod, in July 2008, he and some of his colleagues began
complaining about his new supervisor, Telisha Jones. Jones and assistant principal
Willie Mae Clark allegedly responded to the criticism by harassing the
complaining teachers. Stress from the harassment caused Sherrod’s lupus to flare
up. In December 2008, he asked Maurice Bonner, the director of human resources
at the School, to accommodate his lupus by assigning him to a position with a ten-
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month work year. Bonner and the School declined the request, repeatedly insisting
that the doctor’s notes Sherrod provided were inadequate to show that his
condition required the accommodation he sought.
On January 29, 2009, Sherrod sent a three-page, single-spaced, typewritten
letter to Clark complaining of Jones’s “increasingly hostile actions.” The letter
was essentially a list of grievances, calling Jones out for everything from failing to
attend a Christmas party, to implementing unnecessary and counterproductive
classroom reforms, to creating an uncomfortable work environment. Among his
many other complaints about Jones, Sherrod stated in the letter that: “I have heard
that at least [Jones’s predecessor] did provide services to the ESE 1 students here at
this center while to date Mrs. Jones has not deigned to do so. Furthermore, Mrs.
Culver [another administrator at the School] is no longer providing the
aforementioned services. I digress[.]” That is one of only two documented
occasions when Jones complained about the School’s failure to provide ESE
services.
On March 19, 2009, the School suspended Sherrod with pay for three weeks
after learning that he had omitted from his job application information about a
legal dispute he had with his former employer, the Palm Beach County School
Board. The School didn’t notify Sherrod when it concluded its investigation, nor
1
“ESE” stands for Exceptional Student Education. In Florida, ESE programs support students
with disabilities.
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did it tell him it intended to pursue disciplinary action. He returned to work, as
directed, on April 9, 2009.
The School has a policy that teachers receive midyear evaluations from their
supervisors. The evaluations notify teachers of deficiencies in their performances
so that teachers may correct the deficiencies in advance of any decision or
recommendation affecting their employment. Sherrod never received his spring
2009 midyear evaluation from the school. Instead, on May 1, 2009, the School
created a personnel action form indicating that it would allow his contract to expire
unrenewed on June 30, 2009.
On May 15, 2009, Sherrod wrote another letter to the School’s quality
assurance auditor complaining about Jones’s maladministration and alleging that
Jones was retaliating against students and teachers at the School. The letter
included the following paragraph about the School’s failure to provide ESE
services:
On or about July 1, 2009 we were informed by Mrs. Jones that: “ESE
was no longer face to face.” Therefore accordingly we have not had
either an ESE Teacher or Para in our classrooms since July 1, 2009.
That is what the young [student] Willie Coleman was attempting to
say yesterday when he said something to the effect that: “we need
more teachers.”
Here, again, the point about ESE was made while complaining about Jones’s
performance as lead teacher.
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On June 9, Sherrod met with School superintendent Michael Lannon to
discuss the School’s decision not to renew Sherrod’s contract. When he told
Lannon that he hadn’t been issued a midyear evaluation, Lannon urged him to
write an evaluation response highlighting that fact. Sherrod did so but never got a
response from the School, which allowed his contract to expire on June 30, 2009.
Sherrod, proceeding pro se, filed his initial complaint in this lawsuit on July
31, 2013. It asserted that the Board, Jones, Lannon, Clark, and another School
administrator had impermissibly retaliated against Sherrod for voicing his concerns
about the School’s failure to provide ESE services. The retaliation alleged in the
original complaint was limited to the School’s failure to issue Sherrod a midyear
evaluation and failure to renew his contract.
Over the following months, Sherrod amended his complaint several times.
He added another First Amendment retaliation claim alleging that the Board and
several newly-named defendants denied his request for a medical accommodation
in retaliation for his having spoken out about the School’s failure to provide ESE
services. He also added allegations against various defendants — some old, some
new — to the effect that the School had failed to give him a midyear evaluation,
failed to notify him of the results of the investigation into his employment
application, and failed to renew his contract all on account of his race. Finally, he
added a claim under the Americans with Disabilities Act (ADA), alleging that the
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School had discriminated against him on the basis of a disability when it failed to
accommodate his medical needs.
On the defendants’ motion, the district court dismissed as time-barred
Sherrod’s disability discrimination claim under the ADA. After discovery, the
parties cross-moved for summary judgment on the remaining claims. The district
court referred the motions to a magistrate judge who issued a report recommending
that the court grant the defendants’ motion. Sherrod objected to the magistrate’s
recommendation. The same day Sherrod filed his objections, the district court
issued an order adopting the magistrate’s report in full. The order noted that the
court had reviewed the report for clear error because, so far as it was aware,
Sherrod hadn’t filed objections. Eight days later, the court sua sponte issued an
amended order explaining that, in light of Sherrod’s objections, the court had
reviewed the record de novo and concluded that the magistrate’s report adequately
addressed those objections. Thus, the court again adopted the magistrate’s report.
Sherrod appeals the dismissal of his ADA discrimination claim and the grant
of summary judgment on his remaining claims. At the outset, however, he asserts
that, in granting summary judgment, the district court failed to conduct a de novo
review of the entire record. Sherrod’s only support for the assertion is that the
record in this case is big and eight days isn’t a lot of time. His argument fails for a
few reasons. First, the district court said it reviewed the record de novo and,
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absent proof otherwise, we take district courts at their word. Second, it isn’t true
that the district court had the record for only eight days. In its original order
adopting the magistrate’s report, the court noted that it had “reviewed the entire
file and record,” and had reached its decision only “[a]fter careful consideration.”
So the district court was already familiar with the record when it undertook its de
novo review of the magistrate’s report. In any event, completing de novo review
of the relevant part of the record in eight days is not impossible or even
improbable.
Our decision in Jeffrey S. by Ernest S. v. State Board of Education, 896 F.2d
507 (11th Cir. 1990), is materially distinguishable in several respects. In Jeffrey
S., we vacated a district court’s order adopting a magistrate’s report because we
determined the district court had adopted the report without conducting the
statutorily-required de novo review of the record. Our opinion emphasized the
district court’s admission that it had “relied heavily upon the magistrate’s
assessment of the evidence and his judgment in drawing reasonable inferences
therefrom.” Id. at 513. The district court’s amended order here, by contrast,
included no such statement and expressly disclaimed any reliance on the
magistrate’s assessments. The district court record in Jeffrey S. was also very
different from the one in this case. The Jeffrey S. record included, among other
things, the transcript from a six-day hearing, and the defendant’s objections
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spanned 60 pages. Id. Here, on the other hand, there’s no week-long hearing
transcript to review and Sherrod’s objections totaled just 17 pages. And, as we
have noted, the district court in this case spent time sifting through the record
before it commenced its de novo review.
Sherrod argues that the district court’s de novo review was not
comprehensive because the court didn’t expressly correct the sentence in the report
noting that Sherrod had “concede[d] that his job performance during the prior
school year was ‘sub par.’” In the first place, the sentence was factually accurate.
Sherrod admitted in his affidavit that he viewed his own performance during the
period in question as “sub par.” Even had the statement been objectively
inaccurate, moreover, it was made in a parenthetical aside and the magistrate’s
report didn’t mention it again, let alone rely on it.
Turning to the merits, the district court was ultimately correct to grant
summary judgment to the defendants on Sherrod’s race discrimination claim, even
though the reason it gave for doing so was incorrect. The district court granted
summary judgment to the defendants because Sherrod hadn’t exhausted available
administrative remedies with respect to his race discrimination claim. But Sherrod
brought his race discrimination claim under 42 U.S.C. §§ 1981 and 1983, not Title
VII of the Civil Rights Act of 1964. Unlike a plaintiff proceeding under Title VII,
a plaintiff alleging employment discrimination in violation of §§ 1981 and 1983
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need not exhaust administrative remedies before suing in federal court. Johnson v.
Ry. Exp. Agency, Inc., 421 U.S. 454, 460, 95 S. Ct. 1716, 1720 (1975); Hines v.
D’Artois, 531 F.2d 726, 736 (5th Cir. 1976).
Summary judgment was nonetheless appropriate because the record, taken
as a whole, lacks evidence from which a reasonable jury could find that the School
discriminated against Sherrod because of his race. Sherrod has not produced any
direct evidence of race discrimination by the School. Instead, he seeks to create an
inference of race discrimination under the familiar McDonnell Douglas
framework. Assuming for the sake of argument that Sherrod can make out a prima
facie case of discrimination, the defendants have rebutted the resulting
presumption by articulating several nondiscriminatory bases for taking an adverse
employment action against him. Those include: Sherrod’s reluctance to use a
regular roll book or employ daily grading; his violations of the School’s
restrictions on teacher cell phone use; his spat with Jones about classroom
coverage procedures; his use of unapproved studio films as teaching aids; and
misrepresentations in his employment application. Where “a defendant carries its
burden of producing legitimate, nondiscriminatory reasons for its decision,” the
burden shifts back to the plaintiff to show that the defendant’s proffered reasons
are pretextual, which he may do “either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by showing
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that the employer’s proffered explanation is unworthy of credence.” Combs v.
Plantation Patters, 106 F.3d 1519, 1528 (11th Cir. 1997) (quotations and citations
omitted). Sherrod does not dispute the factual bases of the School’s proffered
reasons for taking adverse employment actions against him. Nor does he offer any
reason for disbelieving the School’s claims that it made its decisions respecting his
employment because of those reasons. Accordingly, Sherrod hasn’t rebutted the
presumption that the School’s stated legitimate reasons were its actual reasons for
firing him. His race discrimination claim therefore fails.2
We turn to Sherrod’s claim that various defendants retaliated against him in
violation of the First Amendment for speaking out about the School’s failure to
provide ESE services. That claim fails because Sherrod has not established that his
letters mentioning the School’s failure to provide ESE services constituted
protected speech. The letters are the only two documented instances of Sherrod
complaining about the lack of ESE services. The second letter, sent to the quality
assurance auditor on May 15, 2009, was written after the School formally decided,
2
We note in passing that, to the extent Sherrod’s race discrimination claim is based on the
School’s failure to give him a midyear evaluation, he hasn’t even made out a prima facie case
under McDonnell Douglas. To make out a prima facie case of race discrimination under
McDonnell Douglas, a plaintiff must show that his employer subjected him to an “adverse
employment action.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). An employer’s
decision only constitutes “adverse employment action” if it affects “a serious and material
change in the terms, conditions, or privileges of employment.” Davis v. Town of Lake Park,
Fla., 245 F.3d 1232, 1239–40 (11th Cir. 2001). Sherrod has not shown how the School’s failure
to give him a midyear evaluation itself had any effect — let alone a “serious and material” effect
— on the terms, conditions, or privileges of his employment.
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on May 1, 2009, not to renew Sherrod’s contract. That letter thus cannot have
caused the non-renewal or any of the earlier actions of which Sherrod complains.
The other letter was sent to Clark on January 29, 2009. Almost all of it deals with
Sherrod’s personal conflict with Jones. Only two sentences in the entire missive
even mention ESE, and the next sentence calls those sentences as a “digress[ion].”
A public employee’s speech is not protected by the First Amendment when
the employee “speaks not as a citizen upon matters of public concern, but instead
as an employee upon matters only of personal interest.” Connick v. Meyers, 461
U.S. 138, 146, 103 S. Ct. 1684, 1690 (1983). In evaluating a public employee’s
First Amendment retaliation claim,
[a] court must therefore discern the purpose of the employee’s speech
— that is, whether [he] spoke on behalf of the public as a citizen, or
whether the employee spoke for [himself] as an employee. To
accomplish this, a court considers the content, form and context of a
given statement, as revealed by the whole record. A court may
consider the employee’s attempts to make the concerns public, along
with the employee’s motivation in speaking.
Morgan v. Ford, 6 F.3d 750, 754 (11th Cir. 1993) (quotation marks and citations
omitted). Taken in the context of the whole letter — and especially in context of
the whole record — it’s clear that Sherrod’s “digress[ion]” about the School’s
failure to provide ESE services was aimed at advancing his private interest in
attacking and undermining Jones, rather than raising issues of public concern.
Sherrod made the statement about ESE services in a private letter to a School
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administrator, and only for the purpose of establishing that Jones was a bad boss.
The mere fact that one of Sherrod’s many criticisms of Jones happened to touch on
a topic of potential public concern is not enough to transform his stated grievances
about his supervisor into constitutionally protected speech. All of Sherrod’s First
Amendment retaliation claims — whether based on the failure to renew his
contract, the failure to accommodate his medical needs, the failure to provide him
with notice that the investigation into his employment application had concluded,
or the failure to give him a midyear evaluation — fail, because he has not
established that the speech at issue was constitutionally protected. 3
Next we consider Sherrod’s claim that the School discriminated against him
in violation of the ADA by denying him a reasonable medical accommodation. 4
As the district court ruled, this claim is time-barred. In Florida, a plaintiff alleging
discrimination in violation of the ADA must bring his claim within four years of
the date on which he learns — or should have learned — of the alleged
discriminatory act. Everett v. Cobb Cty. Sch. Dist., 138 F.3d 1407, 1410–11 (11th
Cir. 1998). Sherrod’s last day at the School was June 30, 2009, but he didn’t assert
3
Because we find that Sherrod’s speech was not constitutionally protected, we need not address
the district court’s holding that Sherrod failed to proffer evidence from which a reasonable jury
could find that his speech caused the alleged retaliatory conduct.
4
We note that a claim of discrimination under the ADA is separate and distinct from a claim of
retaliation under the ADA. Compare 42 U.S.C. § 12203(a) (ADA’s prohibition on retaliation),
with 42 U.S.C. § 12112(a) (ADA’s prohibition on discrimination). We have already addressed
Sherrod’s ADA retaliation claim along with his First Amendment retaliation claims. The
remainder of this opinion deals exclusively with his discrimination claim.
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an ADA discrimination claim until August 20, 2013. Thus, even if his ADA
discrimination claim accrued on his very last day of employment, it was untimely.
There’s nothing to Sherrod’s argument that his ADA discrimination claim
relates back to his original complaint. A new claim relates back to an earlier
pleading only when “the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out — or attempted to be set out — in the
original pleading.” Fed. R. Civ. P. 15(c)(1)(B). Sherrod’s original complaint
addressed only the facts underlying his allegation that some of the defendants had
retaliated against him for speaking out about the School’s failure to provide ESE
services. The original complaint did not mention Sherrod’s disability, his request
for medical accommodation, the School’s denial of that request, or any other
conduct, transactions, or occurrences necessary to support his ADA discrimination
claim. It follows that his ADA claim does not arise from the conduct, transactions,
or occurrences set out in the original complaint, meaning it does not relate back to
the original complaint for purposes of the limitations period.
Sherrod argues that he’s entitled to equitable tolling of the statute of
limitations. Equitable tolling is an extraordinary remedy to be applied sparingly,
when a plaintiff’s untimely filing is due to extraordinary circumstances that are
both beyond his control and unavoidable even with diligence. Arce v. Garcia, 434
F.3d 1254, 1261 (11th Cir. 2006). Sherrod hasn’t alleged any such circumstances.
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He says his illness interfered with his ability to recognize and file an ADA
discrimination claim in this case. He has not, however, alleged facts — let alone
proferred evidence — sufficient to show that his illness made it impossible for him
to file an ADA claim against the defendants at any point within the four years
following non-renewal of his contract.
Sherrod suggests that the School’s repeated failures, after his contract
expired, to appoint him to the position for which he requested an accommodation
constituted discrete discriminatory acts that reset the statute of limitations clock.
But the failure to remedy a prior act of discrimination does not constitute a new act
of discrimination for purposes of determining whether a claim is time-barred.
Everett, 138 F.3d at 1410. The ADA discrimination of which Sherrod complains
occurred, if at all, when he was denied the requested accommodation at work, not
after he was no longer working.
Lastly, Florida’s delayed discovery doctrine doesn’t apply here. It applies
only to state law claims, and only to cases involving fraud, products liability,
professional malpractice, medical malpractice, or intentional torts based on abuse.
Davis v. Monahan, 832 So. 2d 708, 709–10 (Fla. 2002).
AFFIRMED.
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