[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 04-13302
Non-Argument Calendar
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U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
D. C. Docket No. 03-00131-CV-2-DF-5 June 8, 2005
THOMAS K. KAHN
RONALD WALLER, CLERK
Plaintiff-Appellant,
versus
JAMES G. ROCHE,
Secretary, United States Air Force,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Georgia
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(June 8, 2005)
Before EDMONDSON, Chief Judge, ANDERSON and MARCUS, Circuit Judges.
PER CURIAM:
Ronald Waller appeals pro se the district court’s grant of summary judgment
in favor of his former employer, Secretary of the United States Air Force James G.
Roche, in this case alleging retaliatory failure to reinstate and race, age, and
disability discrimination under Title VII, 42 U.S.C. §§ 2000e, et seq., the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621 et seq., and the
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. No reversible
error has been shown; we affirm.
Waller is an African-American veteran who was 52 years old when he filed
the instant complaint. Waller worked at Robins Air Force Base as a civilian
employee from 1980 until 1993. Between 1990 and the transfer of his position to
the Defense Logistics Agency (DLA) in 1992, Waller filed many Equal
Employment Opportunity (EEO) complaints alleging (1) that the Air Force failed
to accommodate his medical problems, and (2) that his transfer to DLA was in
retaliation for filing previous complaints. Waller’s employment was terminated in
November 1993. He asserted that the reason given for his termination, that he
“threatened to do bodily harm,” was erroneous because he had not threatened
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anyone. Waller filed a civil suit in federal court in 1993 about his termination, but
the court in 1995 granted summary judgment in favor of Defendant.
In 2000, Waller made three unsuccessful attempts to be reinstated to
employment. Waller discovered that he was eligible for non-competitive
reinstatement in August 2000. Waller believed that non-competitive reinstatement
meant that he did not have to compete with other applicants to be reinstated and
that he would be placed in any job for which he was qualified. He contends that
the Air Force refused to reinstate him in October 2000 because of his past EEO
activities: this act, he claims, forms the basis of the present complaint.
In granting Defendant’s motion for summary judgment, the district court1
determined (1) that Waller conceded he was not making a claim of age
discrimination, (2) that Waller failed to make a prima facie case of race
discrimination, (3) that Waller admitted he did not have evidence of disability
discrimination based on his medical condition, and (4) that Waller failed to show a
link between his EEO activities and his non-reinstatement because the same
people were not involved.
1
Judge Duross Fitzpatrick of the United States District Court for the Middle District of Georgia
presided over both Waller’s 1993 action and the present action.
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On appeal, Waller, citing Fed.R.Civ.P. 52(b), argues that we should
examine the allegedly erroneous fact findings of the district court in his previous
case -- and that the district court improperly granted summary judgment in this
case -- by leaving issues of fact in dispute: (1) whether the Air Force fraudulently
altered his Form SF-50 Personnel Action Form, and (2) whether he was terminated
unlawfully in 1993. And Waller challenges as erroneous the district court’s
determination that non-competitive selection does not mean that an employee
automatically would be rehired. To the contrary, Waller contends that the
applicable Air Force regulation required that he be selected, as an applicant
discriminated against. Waller also brings up the events related to his 1992 EEO
filings and his 1993 termination; he suggests that these events show a prima facie
case of retaliation and disability discrimination.2
We review the district court’s rulings on a motion for summary judgment de
novo; we view all evidence and factual inferences therefrom in the light most
favorable to the non-moving party. Miller v. King, 384 F.3d 1248, 1258-59 (11th
2
We reject Waller’s claim that Judge Fitzpatrick should have recused himself because the judge
committed “prejudicial errors” in both the 1995 and 2004 judgments. Simply presiding over two
cases with the same plaintiff and with overlapping facts -- and entering adverse judgments in each
case -- is no evidence of the sort of pervasive bias that could have prejudiced Waller. See United
States v. Bailey, 175 F.3d 966, 968 (11th Cir. 1999) (stating that bias sufficient to recuse a judge
must come from extrajudicial source, unless pervasive bias or prejudice exists that could prejudice
a party).
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Cir. 2004). Summary judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c).
First, Waller does not challenge the district court’s determinations about his
failure to establish race or age-based discrimination: these issues are abandoned.
See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir.
1989). And Waller offers no substantive argument challenging the district court’s
determination that he failed to present evidence of a link between his earlier EEO
activities and his 2000 non-reinstatement. This issue -- the basis of the district
court’s rejection of his retaliation claim -- also is abandoned. See id. We also
note that Waller admitted that he had no evidence of disability-based
discrimination.
We reject, on the basis of res judicata, Waller’s attempts (1) to use Rule
52(b) to challenge the findings of fact made by the district court in the previous
lawsuit, and (2) to show disability discrimination based on his transfer to DLA or
his termination in 1993. See Allen v. McCurry, 101 S.Ct. 411, 414 (1980) (under
res judicata, a final judgment on the merits of an action precludes the parties from
relitigating issues that were or could have been raised in that action). And
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Waller’s arguments -- including his arguments about the applicable Air Force
regulation and the incorrect Form SF-50 -- do not relate to whether he established
a causal connection between his 1992-93 EEO activities and his 2000 non-
reinstatement. Waller has not shown that the failure to reinstate him was
retaliatory.
In sum, the district court properly granted summary judgment in favor of
Defendant on all of Waller’s claims.
AFFIRMED.
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