[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 3, 2012
No. 11-11264
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 2:10-cv-01271-WMA
ROGER SHULER,
lllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA, THE,
CAROL GARRISON, individually and in her official UAB capacity, et al.,
llllllllllllllllllllllllllllllllllllllll Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(July 3, 2012)
Before TJOFLAT, EDMONDSON and ANDERSON, Circuit Judges.
PER CURIAM:
Roger Shuler appeals pro se from the district court’s grant of summary
judgment to the University of Alabama at Birmingham (“UAB”) Board of Trustees
and several UAB employees (the “individual defendants,” collectively referred to
with the Board as the “UAB defendants”), and the grant of the City of
Birmingham’s (“City”) motion to dismiss. Shuler had filed a pro se complaint,
claiming that the UAB defendants retaliated against him and wrongfully
terminated his employment in violation of: (1) 42 U.S.C. § 1983, because he was
fired for exercising his First Amendment right to free speech; (2) 42 U.S.C.
§ 1985(3), because the UAB defendants conspired to deprive him of his
constitutional rights; (3) 42 U.S.C. § 1986, because the UAB defendants knew of
this conspiracy and failed to prevent it; (4) the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. §§ 621-634, in that he was discriminated against due to
his age; and (5) Title VII, 42 U.S.C. § 2000e, et seq., because he was
discriminated against on the basis of his gender. Shuler also brought a state
defamation claim against the City.
The district court handled Shuler’s claims as follows. Following Shuler’s
objection that the Board improperly filed a motion to dismiss after its answer and
that the motion to dismiss was filed with supporting affidavits, the district court
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converted the Board’s motion to dismiss into a motion for summary judgment.
The district court clarified that the UAB individual defendants’ motion, which was
filed as a “motion to dismiss or for summary judgment,” would also be treated as a
motion for summary judgment.
After giving Shuler time to oppose the motions, the district court
subsequently granted summary judgment to the UAB defendants based on the
following findings. First, with respect to Shuler’s §§ 1983, 1985(3), and 1986
claims, the UAB Board and the individual defendants in their official capacities
enjoyed Eleventh Amendment immunity, the individual defendants in their
individual capacities benefitted from qualified immunity, and Shuler failed to
plead facts sufficient to establish a constitutional violation or a conspiracy
between the individual defendants. Second, with respect to his ADEA claim,
Shuler failed to allege that age was the “but for” reason for his discharge. Third,
with respect to his Title VII gender discrimination claim, Shuler failed to exhaust
the claim by filing a charge of gender discrimination with the Equal Employment
Opportunity Commission (“EEOC”). The district court also granted the City’s
motion to dismiss, based on Shuler’s concession that he did not file a notice of his
claim with the City Clerk’s Office, as required by Alabama state law. The district
court also denied several motions Shuler filed asking the judge to recuse himself.
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On appeal, Shuler claims that the district court erred by (1) granting the
City’s motion to dismiss, (2) converting the Board’s motion to dismiss into a
motion for summary judgment, (3) failing to allow discovery, (4) improperly
granting summary judgment on the Title VII claim, (5) improperly granting
summary judgment on the ADEA claim, (6) improperly granting summary
judgment on the § 1983 claim, (7) improperly granting summary judgment on the
§ 1985 claim, and (8) improperly finding the complaint barred by Iqbal and
Twombly.1
I. City’s Motion to Dismiss
Pursuant to Ala. Code § 11-47-23, there is a six-month limitations period
within which a claimant must notify the city clerk of a potential tort claim against
a municipality. Under Alabama law, the plaintiff has the burden to prove
compliance with the claim-filing requirement. McCarroll v. City of Bessemer, 268
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Shuler also argues that the district court erred by denying multiple motions to
recuse. He contends that the district court was communicating secretly with the opposing party
or interested third parties, as evidenced in part by the court’s statement, “I know that UAB and
the people over there are very anxious about this.” Shuler also contends that the district court
intended to misapply the law, as evidenced by the court’s suggestion that Shuler learn about the
procedure for filing a writ of mandamus. We find no abuse of discretion in denying the motions
to recuse. There are no facts “that would convince a reasonable person that bias actually exists.”
Christo v. Padgett, 223 F.3d 1324, 1333 (11th Cir. 2000). We also find no error in the district
court’s refusal to strike affidavits.
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So. 2d 731, 735 (Ala. 1972) (“[I]n order to maintain an action against a municipal
corporation the filing of the statement of claim in substantial compliance with the
statute must be alleged and proved.”).
Shuler conceded to the district court that he did not file this required Notice
of Claim with the city clerk within six months. Because of this concession, the
district court did not need to consider the affidavit attached to the City’s motion to
dismiss. Accordingly, we find no merit to Shuler’s argument that the district court
erred by failing to convert the motion to dismiss into a motion for summary
judgment. See Harper v. Lawrence Cnty., Ala., 592 F.3d 1227, 1232 (11th Cir.
2010) (“A judge need not convert a motion to dismiss into a motion for summary
judgment as long as he or she does not consider matters outside the pleadings.
According to case law, ‘not considering’ such matters is the functional equivalent
of ‘excluding’ them–there is no more formal step required.”).
II. Converting the Motion to Dismiss into a Motion for Summary Judgment
Shuler argues that the district court could not convert the Board’s motion to
dismiss into one for summary judgment because the Board filed an answer before
filing the motion to dismiss, and therefore the motion to dismiss was completely
invalid.
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If a district court considers matters outside the pleadings when ruling on a
motion to dismiss under Rule 12(b)(6), the motion must be treated as one for
summary judgment under Rule 56. Fed. R. Civ. P. 12(d). We find no error here.
The district court properly converted the Board’s motion under Rule 12(d), see
Harper, 592 F.3d at 1232, and this conversion rendered moot any argument that
the district court improperly ruled on a motion to dismiss.
III. Failing to Allow Discovery
Shuler contends that the district court erred by refusing to allow for
discovery before granting summary judgment. Where “the documents or other
discovery sought would be relevant to the issues presented by the motion for
summary judgment, the opposing party should be allowed the opportunity to
utilize the discovery process to gain access to the requested materials.” Snook v.
Trust Co. of Ga. Bank of Savannah, N.A., 859 F.2d 865, 870 (11th Cir. 1998).
Under Rule 56, if the party opposing summary judgment shows by affidavit or
declaration, for specified reasons, that it cannot present facts essential to its
opposition, the court may: (1) defer the motion for summary judgment, (2) allow
time to obtain affidavits or declarations or to take discovery, or (3) issue any other
appropriate order. Fed. R. Civ. P. 56(d). After providing the parties with notice
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and time to respond, the district court may grant summary judgment on grounds
not raised by a party or “consider summary judgment on its own after identifying
for the parties material facts that may not be genuinely in dispute.” Fed. R. Civ. P.
56(f).
Shuler never filed a motion under Rule 56(d) and did not identify any
discovery relevant to the grounds for summary judgment. No amount of
discovery would change the conclusion that the defendants are entitled to
summary judgment on all claims.
IV. Summary Judgment on Title VII Claim
Shuler claims that the district court erred by granting summary judgment to
the UAB defendants on his gender discrimination claim. The individual
defendants are not “employers” under Title VII, and thus Shuler’s claim against
them fails. Albra v. Advan, Inc., 490 F.3d 826, 830 (11th Cir. 2007) (noting that
Title VII does not “countenance individual liability”). With respect to the Board,
Shuler has failed to allege any evidence that he was discriminated against due to
his gender. “[A] pro se litigant does not escape the essential burden under
summary judgment standards of establishing that there is a genuine issue as to a
fact material to his case in order to avert summary judgment.” Brown v.
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Crawford, 906 F.2d 667, 670 (11th Cir. 1990). Bare and self-serving allegations
are inadequate to carry the plaintiff’s burden on summary judgment. Stewart v.
Booker T. Washington Ins., 232 F.3d 844, 851 (11th Cir. 2000). We find no error
in the district court’s grant of summary judgment on this claim.
V. Summary Judgment on ADEA Claim
Shuler argues that the district court erred by granting summary judgment to
the UAB defendants on his age discrimination claim. The individual defendants
are not “employers” under the ADEA, and thus Shuler’s claim against them has no
merit. Albra, 490 F.3d at 830 (holding that the ADEA, like Title VII, does not
“countenance individual liability”). The Board has Eleventh Amendment
immunity from ADEA claims, Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 91-92,
120 S. Ct. 631, 650 (2000), and this immunity may be raised for the first time on
appeal, Doe v. Moore, 410 F.3d 1337, 1349 (11th Cir. 2005) (“A state’s waiver of
its sovereign immunity . . . must be unequivocally expressed, and Eleventh
Amendment jurisdictional questions can be raised for the first time on appeal
. . . .”) (quotations and citation omitted). Thus, Shuler’s ADEA claim fails.
VI. Summary Judgment on 1983 Claim
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Shuler argues that the district court erred by granting summary judgment to
the UAB defendants on his 1983 claim. To the extent this claim is against the
individual defendants in their official capacity or against the Board itself, the
claim fails because of Eleventh Amendment immunity. Jackson v. Ga. Dep’t of
Transp., 16 F.3d 1573, 1575 (11th Cir. 1994). To the extent the complaint is
against the individual defendants in their individual capacity, we agree with the
district court that Shuler has failed to overcome qualified immunity.
Qualified immunity protects government officials performing discretionary
functions from liability in their individual capacity if their conduct “does not
violate clearly established statutory or constitutional rights of which a reasonable
person would have known.” Hope v. Pelzer, 536 U.S. 730, 739, 122 S. Ct. 2508,
2515 (2002) (quotation omitted). The immunity “protects all but the plainly
incompetent or those who knowingly violate the law.” Jordan v. Mosley, 487 F.3d
1350, 1354 (11th Cir. 2007) (quotation omitted). Once a defendant establishes
that he was acting within his discretionary authority, the plaintiff has the burden of
establishing that qualified immunity is not appropriate. Vinyard v. Wilson, 311
F.3d 1340, 1346 (11th Cir. 2002).
Shuler has not shown that any clearly established right has been violated.
His only alleged evidence is a recorded phone call that he says supports the notion
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that he was terminated because of the political content of his blog. However,
Shuler’s own transcript of the phone call shows only that his time spent
researching content for his blog during working hours was a factor–and an
“insignificant” one, at that–in his termination. There is no evidence to suggest that
the political content of his blog was a factor at all. Accordingly, we affirm the
district court’s grant of summary judgment to the UAB defendants on this claim.
VII. Summary Judgment on 1985 Claim
Shuler contends that the district court erred by granting summary judgment
on his 1985 claim, but Shuler has failed to provide any citations or argument as to
why the district court erred by granting summary judgment on this claim. This
argument is waived, as are any other claims on which Shuler lost at the district
court that have not been properly presented to this Court. See N.L.R.B. v.
McClain of Georgia, Inc., 138 F.3d 1418, 1422 (11th Cir. 1998) (“Issues raised in
a perfunctory manner, without supporting arguments and citation to authorities,
are generally deemed to be waived.”).2
AFFIRMED.
2
Because of the previous holdings, we need not discuss whether the district court
erred by finding that all of Shuler’s claims also failed under Iqbal and Twombly.
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