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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14059
Non-Argument Calendar
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D.C. Docket No. 1:13-cv-22368-KMM
SYLVAN C. JOLIBOIS,
Plaintiff-Appellant,
versus
FLORIDA INTERNATIONAL UNIVERSITY BOARD OF TRUSTEES,
a public body corporate,
MARK B. ROSENBERG,
in his official capacity as President,
et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
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(June 29, 2016)
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Before MARCUS, WILLIAM H. PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
Sylvan C. Jolibois, through counsel, appeals the district court’s grant of
summary judgment in favor of Florida International University (“FIU”) on his Title
VII and Florida Civil Rights Act (“FRCA”) discrimination and retaliation claims;
in favor of FIU’s Chairman of the Department of Civil and Environmental
Engineering, Atorod Azizinamini, and FIU’s Dean of the College of Engineering,
Amir Mirmiran, on his 42 U.S.C. § 1983 substantive due process claim; in favor of
Azizinamini, Mirmiran, and the President of FIU, Mark B. Rosenberg, on his
procedural due process claims; and in favor of the defendants on his request for
declaratory relief. On appeal, Jolibois argues, first, that the district court erred by
finding FIU’s proffered reasons for the denial of Jolibois’s sabbatical request, his
suspension, and his later termination were legitimate, non-discriminatory reasons
because they were based on provisions in a Collective Bargaining Agreement
(“CBA”), which was applied retroactively, and was fundamentally unfair. He also
argues the district court erred by finding FIU’s proffered reasons were legitimate
and non-discriminatory because FIU could not have suspended and terminated
Jolibois for not submitting a performance improvement plan (“PIP”) because
Jolibois did submit a PIP, which FIU rejected. Second, he argues that the district
court erred by not considering his allegation of a First Amendment violation as a
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basis for his substantive due process claim, because his answers to discovery
interrogatories explained the nature and content of his protected speech, and thus
established a First Amendment retaliation claim against Azizinamini and
Mirmiran. Third, he argues that the district court erred in granting summary
judgment on his § 1983 procedural due process claim because the notice provided
by FIU did not conform to the CBA requirements; because the CBA did not list the
absence of a PIP as “just cause” for termination; and because the notices were
deficient because they were retroactively based on a new policy. Fourth, Jolibois
argues that the district court erred in granting summary judgment on his
declaratory judgment claim.
I.
We review a district court’s order granting summary judgment de novo.
Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).
Summary judgment is appropriate where, construing all reasonable inferences in
the light most favorable to the non-moving party, there is no genuine dispute of
material fact to be tried. Id. “[A]n inference based on speculation and conjecture
is not reasonable.” Blackston v. Shook and Fletcher Insulation Co., 764 F.2d 1480,
1482 (11th Cir. 1985). A dispute is not genuine if unsupported by evidence,
“merely colorable,” or created by evidence “not significantly probative.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511, 91
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L. Ed. 2d 202 (1986). We will generally refuse to consider arguments raised for
the first time on appeal. Fed. Dep. Ins. Corp. v. 232 Inc., 920 F.2d 815, 817 (11th
Cir. 1991).
Absent direct evidence, when analyzing claims for discrimination or
retaliation, under both Title VII and the FCRA, we employ the McDonnell
Douglas analytical framework. Crawford v. City of Fairburn, 482 F.3d 1305, 1308
(11th Cir. 2007); see Harper v. Blockbuster Entm’t Corp, 139 F.3d 1385, 1387
(11th Cir. 1998) (“No Florida court has interpreted the Florida statute to impose
substantive liability where Title VII does not.”). Under this framework, once a
plaintiff establishes a prima facie case, the burden of production shifts to the
defendant to articulate a legitimate, non-discriminatory reason for the adverse
employment action. Crawford, 482 F.3d at 1308. The reason offered “does not
have to be a reason that the judge or jurors would act on or approve”; instead, “all
that matters is that the employer advance[d] an explanation for its action that is not
discriminatory in nature.” Schoenfeld v. Babbitt, 168 F.3d 1257, 1269 (11th Cir.
1999).
If the defendant carries this burden, the plaintiff must demonstrate that the
proffered reason was merely a pretext to mask discriminatory actions, must “meet
that reason head on and rebut it,” and cannot succeed in doing so “by simply
quarreling with the wisdom of that reason.” Chapman, 229 F.3d at 1030. In order
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to demonstrate pretext, a plaintiff must show that the employer’s offered reason
was not the true reason for its decision, “either directly by persuading the court that
a discriminatory reason more likely motivated the employer or indirectly by
showing that the employer’s proffered explanation is unworthy of credence.”
Jackson v. State of Ala. State Tenure Comm’n., 405 F.3d 1276, 1289 (11th Cir.
2005) (quotation omitted). Importantly, conclusory allegations of discrimination,
without more, are insufficient to show pretext. Mayfield v. Patterson Pump Co.,
101 F.3d 1371, 1376 (11th Cir. 1996). A plaintiff’s showing that an employer’s
proffered reason is unpersuasive does not necessarily establish that the plaintiff’s
proffered reason is correct; a district court still must conclude that the employer’s
real reason was impermissible. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
524, 113 S. Ct. 2742, 2756, 125 L. Ed. 2d 407 (1993). A breach of an internal
policy alone does not amount to a showing of pretext. Springer v. Covergys
Customer Mgmt. Group., Inc., 509 F.3d at 1344, 1350 (11th Cir. 2007). “Federal
courts do not sit as a super-personnel department that reexamines an entity’s
business decisions,” and subjective evaluations are permitted under Title VII.
Chapman, 229 F.3d at 1030, 1033 (analyzing the issue of pretext in the context of
a failure to promote).
The district court did not err in finding that FIU offered legitimate, non-
discriminatory reasons and Jolibois failed to show they were pretext. First,
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because Jolibois failed to argue in the district court that the CBA was applied
retroactively, and thus, its provisions could not be a basis for his suspension and
termination, we decline to consider that argument on appeal. See Fed. Dep. Ins.
Corp., 920 F.2d at 817. Second, Jolibois attempts to “quarrel[] with the wisdom of
the reason,” rather than show the reason was discriminatory in nature. See
Chapman, 229 F.3d at 1030. Third, failure to abide by the CBA requirements, or
breach of some other internal policy, alone, does not constitute a sufficient
showing of pretext. Id. Fourth, subjective determinations are permitted under
Title VII, and we will not sit as a super-personnel department and reexamine an
entity’s business decision. Id. at 1030, 1033. The ample evidence of Jolibois’s
numerous poor evaluations and his refusal to submit the required PIP supports
FIU’s proffered reason for the denial of the sabbatical, the requirement of the PIP,
suspension, and later termination, and clearly meets the test of being one that might
motivate an employer to initiate disciplinary proceedings against an employee who
refuses to follow their instructions. See Jackson, 405 F.3d at 1289. Thus, Jolibois
has failed to create a genuine dispute of material fact regarding pretext. See
Anderson, 477 U.S. at 249-50, 106 S. Ct. at 2511.
II.
Although Federal Rule of Civil Procedure 8(a) allows for a liberal pleading
standard for civil complaints, “[t]he standard however does not afford plaintiffs
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with an opportunity to raise new claims at the summary judgment stage.” Gilmour
v. Gates, McDonald and Co., 382 F.3d 1312, 1314 (11th Cir. 2004). We will not
address arguments raised for the first time in a reply brief. Little v. T-Mobile USA,
Inc., 691 F.3d 1302, 1307 (11th Cir. 2012).
Substantive due process protects fundamental rights–those that are “implicit
in the concept of ordered liberty”–which does not include the right to public
employment. McKinney v. Pate, 20 F.3d 1550, 1556 (11th Cir. 1994).
The district court did not err in granting summary judgment on Jolibois’s
substantive due process claim because he failed to properly plead a substantive due
process claim based on free speech in regard to Azizinamini and Mirmiran, and
Rule 8(a) does not afford him the opportunity to raise new claims at the summary
judgment stage. Gilmour, 382 F.3d at 1314. Moreover, Jolibois failed to argue in
his initial brief that the district court erred in granting summary judgment to
Rosenberg on his First Amendment retaliation claim, and thus, we refrain from
analyzing that issue. See Little, 691 F.3d at 1307.
III.
The Due Process Clause of the Fourteenth Amendment requires that a
deprivation of property be preceded by notice and opportunity to be heard for
hearing appropriate to the nature of the case. Mullane v. Central Hanover Bank &
Trust Co., 339 U.S. 306, 313, 70 S. Ct. 652, 656-57, 94 L. Ed. 865 (1950). A
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public college professor dismissed from an office held under tenure provisions has
an interest in continued employment that is safeguarded by procedural due process.
Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 576-77, 92 S. Ct. 2701, 2709,
33 L. Ed. 2d 548 (1972). In this Circuit, a federal court reviewing a decision of a
public educational institution to discharge an employee applies a two-tier level of
inquiry: the court examines (1) whether the procedures followed by school
authorities comported with due process requirements, and, if so, (2) whether the
action taken was supported by substantial evidence. Martin v. Guillot, 875 F.2d
839, 844 (11th Cir. 1989). The minimum procedural due process requirements for
a teacher who is to be terminated for cause and who opposes his termination are
“(1) notice of the reasons for dismissal; (2) notice of the names of adverse
witnesses and the nature of their testimony; (3) a meaningful opportunity to be
heard; and (4) the right to be heard by a tribunal which possesses some academic
expertise and an apparent impartiality toward the charges leveled against the
teacher.” Holley v. Seminole Cnty. Sch. Dist., 755 F.2d 1492, 1497 (11th Cir.
1985).
A full evidentiary hearing is generally not required. Harrison v. Wille, 132
F.3d 679, 684 (11th Cir. 1998). Instead, “[t]he tenured public employee is entitled
to oral or written notice of the charges against him, an explanation of the
employer’s evidence, and an opportunity to present his side of the story.”
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Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S. Ct. 1487, 1495, 84
L. Ed. 2d 494 (1985). Requiring any more prior to termination would intrude to an
unwarranted extent on the government’s interest in quickly removing an
unsatisfactory employee. Id. Ultimately, though, it is the particular facts in any
given case that determine which procedural protections are required. Morrissey v.
Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 (1972). The
violation of another procedure “does not necessarily equate to a due process
violation under the federal constitution.” Harris v. Birmingham Bd. of Educ., 817
F.2d 1525, 1528 (11th Cir. 1987).
The district court did not err in finding that the discipline and termination
procedures provided by FIU met minimum procedural due process requirements
because the notice of intent to suspend and the notice of intent to terminate gave
Jolibois prior notice of the charges against him before the action was taken,
notified him of the witnesses, and gave him ten days with which to request a
hearing. See Holley, 755 F.2d at 1492, 1497. Although he argues that he
requested a hearing when he filed an internal complaint with FIU’s Human
Resources Department, even read liberally, there is no request for a hearing in that
complaint, nor did Jolibois request a hearing anywhere else in the record.
Jolibois’s suspension and termination did not violate his procedural due
process rights, because a violation of CBA procedures “does not necessarily equate
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to a due process violation under the federal constitution.” Harris, 817 F.2d at
1528. Moreover, the procedures employed by FIU did not actually violate the
CBA’s required procedures because the notices listed the reasons for the proposed
action and gave Jolibois ten days with which to respond. Although the notices
were sent by Mirmiran, the CBA allows for the President or his designee to send
the notice and does not require that designation be in writing. Finally, the CBA
lists misconduct and incompetence as “just cause” for termination, and the refusal
to submit a PIP as requested by a supervisor is sufficient to rise to the level of
misconduct, and numerous poor evaluations are sufficient to show incompetence.
IV.
The Declaratory Judgment Act states:
In a case of actual controversy within its jurisdiction, . . . any court of
the United States, upon filing of an appropriate pleading, may declare
the rights and other legal relations of any interested party seeking such
declaration, whether or not further relief is or could be sought.
28 U.S.C. § 2201(a). The Declaratory Judgment Act is procedural in operation and
does not confer independent jurisdiction upon this Court. Household Bank v. JFS
Group, 320 F.3d 1249, 1253 (11th Cir. 2003). Thus, there must be an underlying
ground of federal jurisdiction in the case. Id.
The district court did not err in granting summary judgment on Jolibois’s
claim for declaratory relief because it correctly granted summary judgment on
Jolibois’s underlying claims, and thus the district court no longer had any
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underlying jurisdictional basis to provide declaratory relief. See Household Bank,
320 F.3d at 1253. Accordingly, we affirm.
AFFIRMED.
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