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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-15427
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cv-02040-KOB
JEFFREY GLOVER,
Plaintiff-Appellant,
versus
PATRICK R. DONAHOE,
Postmaster General of the United States Postal Service ("USPS")
in his official and individual capacity,
DARREN BUGGS,
Officer in Charge, USPS, in his official and individual capacity,
DERRICK KING,
Officer in charge/Postmaster, USPS,
in his official and individual capacity,
STEPHANIE JOHNSON,
204B Supervisor, USPS, in her official and individual capacity,
UNITED STATES,
Defendants-Appellees.
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________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(September 16, 2015)
Before HULL, ROSENBAUM, and EDMONDSON, Circuit Judges.
PER CURIAM:
In this employment discrimination case, Jeffrey Glover, a white United
States Postal Service (“USPS”) employee, appeals the dismissal of his amended
complaint against Postmaster General Patrick Donahoe and three USPS
employees, each sued in his individual and official capacities. No reversible error
has been shown; we affirm.
Briefly stated, this case arises out of the USPS’s investigation of a customer
complaint against Glover: a black woman accused Glover of using a racial epithet
and profanity toward her while Glover was on his postal route. During the
investigation, Glover alleges that USPS employees began spreading rumors about
Glover having cursed a customer. Glover was ultimately charged with
inappropriate conduct, and his employment was terminated. Glover appealed the
termination; and, five days after his termination took effect, a dispute resolution
team overturned the termination and reinstated Glover’s employment. After
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Glover’s reinstatement, Glover contends that Defendants failed to reactivate
Glover’s door-access code for two weeks and delayed payment of Glover’s
backpay for two weeks.
In his amended complaint, Glover purports to assert against Defendants six
federal-law claims of employment discrimination and retaliation and two state-law
claims for libel and slander. The United States Attorney, pursuant to 28 U.S.C. §
2679(d)(1), certified that all individual Defendants were acting within the scope of
their employment at the time of the alleged libel and slander. As a result, the
government sought to substitute the United States as a party for the
individually-named defendants in Glover’s state law libel and slander claims.
In a thorough and reasoned order, the district court (1) affirmed the United
States Attorney’s scope-of-employment certification, (2) substituted the United
States for the individually-named Defendants in Glover’s libel and slander claims;
and (3) denied Glover’s request for discovery and an evidentiary hearing. In a
second detailed order, the district court granted Defendants’ motion to dismiss
Glover’s complaint for lack of subject matter jurisdiction and for failure to state a
claim.
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I. Libel and Slander Claims
On appeal, Glover first challenges the district court’s substitution of the
United States as a party in place of the individually-named defendants to Glover’s
libel and slander claims (Counts Six and Seven).
Under the Federal Tort Claims Act, the United States shall be substituted as
the defendant in civil actions against federal employees “[u]pon certification by the
Attorney General that the defendant employee was acting within the scope of his
office or employment at the time of the incident out of which the claim arose.”
28
U.S.C. § 2679(d)(1). If a plaintiff objects, the district court reviews de novo the
United States Attorney’s scope of employment certification. S.J. & W. Ranch, Inc.
v. Lehtinen,
913 F.2d 1538, 1543 (11th Cir. 1990). The plaintiff, however, bears
“the burden of altering the status quo by proving that the employee acted outside
the scope of employment.”
Id.
The question of whether an employee acted within the scope of his
employment for purposes of section 2679(d)(1) “is an issue governed by the law of
the state where the incident occurred.”
Id. at 1542. Under Alabama law, “[a]n act
is within an employee’s scope of employment if the act is done as part of the duties
the employee was hired to perform or if the act confers a benefit on his employer.”
Hulbert v. State Farm Mut. Auto. Ins. Co.,
723 So.2d 22, 23 (Ala. 1998). The
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dispositive question is whether, at the time of the alleged wrongdoing, “the
employee was engaged in an act that he was hired to perform or in conduct that
conferred a benefit on his employer.”
Id. at 24.
Here, the district court reviewed expressly the United States Attorney’s
certification under the proper de novo standard of review. Accepting the
allegations in Glover’s amended complaint as true -- and applying Alabama law --
the district court determined that Glover failed to satisfy his burden of proving that
Defendants acted outside the scope of their employment. According to Glover’s
complaint, Defendants’ alleged wrongful statements were made during the course
of an official USPS investigation of a customer complaint against Glover: a duty
that Defendants were hired to perform and that benefitted the USPS.
Moreover, nothing mandates that a district court allow discovery and hold an
evidentiary hearing before ruling on a section 2679 certification. Discovery and an
evidentiary hearing are particularly unnecessary in this case, where Glover alleged
no facts to support his contention that Defendants were acting outside the scope of
their employment at the time of the alleged wrongdoing.
The district court substituted properly the United States as a defendant to
Glover’s state-law libel and slander claims. As a result, Glover’s state-law claims
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were subject to dismissal for lack of subject matter jurisdiction. 1 See
28 U.S.C. §
2680(h) (providing an exception to the United States’ waiver of sovereign
immunity under the Federal Tort Claims Act for claims involving libel or slander);
JBP Acquisitions, L.P. v. United States ex rel. FDIC,
224 F.3d 1260, 1263-64
(11th Cir. 2000) (courts lack subject matter jurisdiction to consider claims against
the United States when the alleged conduct falls into one of the statutory
exceptions to the Federal Tort Claims Act).
II. Federal Law Claims
Glover also challenges the district court’s dismissal, under Fed.R.Civ.P.
12(b)(6), of four of his federal law claims. 2 We review de novo a district court’s
dismissal for failure to state a claim, accepting all alleged facts as true and
construing them in the light most favorable to the plaintiff. Butler v. Sheriff of
Palm Beach Cnty.,
685 F.3d 1261, 1265 (11th Cir. 2012).
A complaint must contain “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Although a Title VII
1
Because Glover’s libel and slander claims were dismissed properly for lack of subject matter
jurisdiction, we need not consider whether these claims were also barred by Alabama’s statute of
limitations.
2
On appeal, Glover fails to challenge the district court’s dismissal of Counts Two and Eight:
these claims are abandoned. See Carmichael v. Kellogg, Brown & Root Serv., Inc.,
572 F.3d
1271, 1293 (11th Cir. 2009).
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complaint need not allege facts sufficient to make out a classic McDonnell
Douglas 3 prima facie case, it must provide enough factual matter (taken as true) to
suggest intentional race discrimination.” Davis v. Coca-Cola Bottling Co. Consol.,
516 F.3d 955, 974 (11th Cir. 2008) (quotation and citation omitted). In addition to
containing well-pleaded factual allegations, complaints must also meet the
“plausibility standard” set forth by the Supreme Court in Bell Atl. Corp. v.
Twombly,
127 S.Ct. 1955 (2007), and in Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949-
50 (2009). 4 This plausibility standard requires “more than a sheer possibility that
a defendant has acted unlawfully.” Iqbal,
129 S.Ct. at 1949. “Where a complaint
pleads facts that are merely consistent with a defendant’s liability, it stops short of
the line between possibility and plausibility of entitlement to relief.”
Id.
(quotations omitted). Our analysis of the plausibility standard is “context-specific”
and “requires [us] to draw on [our] judicial experience and common sense.”
Id. at
1950.
As an initial matter, claims under Title VII for employment discrimination
and retaliation may be brought only against the head of an agency in his official
capacity. See Canino v. United States EEOC,
707 F.2d 468, 472 (11th Cir. 1983).
3
McDonnell Douglas Corp. v. Green,
93 S.Ct. 1817 (1973).
4
The district court recited and applied correctly the “plausibility standard” of review established
in Twombly and Iqbal, including the court’s obligation to accept the allegations in Glover’s
complaint as true. To the extent Glover challenges the constitutionality of the Supreme Court’s
“plausibility standard,” that is no issue for this Court to decide; we are bound by the Supreme
Court’s decisions.
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Thus, the only properly named defendant for Glover’s Title VII claims is
Postmaster General Donahoe, in his official capacity. The district court committed
no error in dismissing Glover’s Title VII claims against the three USPS employees
and against Donahoe in his individual capacity.
About Glover’s Title VII claim for race discrimination (Count One), the
amended complaint creates no plausible inference of discrimination on account of
Glover’s race. Viewing the factual allegations in the amended complaint in the
light most favorable to Glover, the USPS terminated Glover’s employment based
on false accusations by a black woman and a black witness that Glover used a
racial slur and other offensive language while Glover was delivering mail. In other
words, Glover’s employment was terminated because of a customer complaint
about Glover’s conduct, not because of Glover’s race.
Glover contends that (particularly because many of USPS’s decision-makers
are black) the “nature of the charge and the race of those [accusing Glover] caused
the Defendants to be racially prejudiced against the Plaintiff and to act against him
for racially discriminatory reasons . . . .” But Glover has identified no similarly-
situated black employee who made racially-offensive remarks toward a customer
and who was treated more favorably. Glover’s allegations of race discrimination
are purely speculative, and Glover has failed to “nudge[] his claims of invidious
discrimination across the line from conceivable to plausible.” See Iqbal,
129 S.Ct.
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at 1950-51 (quotations omitted). The district court concluded correctly that Glover
failed to state a claim for race discrimination under Title VII.
About Glover’s Title VII retaliation claim (Count Three), Glover failed to
plead sufficient facts from which one could infer plausibly that a causal connection
existed between Glover’s statutorily-protected activity and Defendants’ alleged
retaliatory conduct. “To establish a causal connection, a plaintiff must show that
the decision-makers were aware of the protected conduct, and that the protected
activity and the adverse actions were not wholly unrelated.” Shannon v. BellSouth
Telecomms., Inc.,
292 F.3d 712, 716 (11th Cir. 2002). Glover alleges that he twice
requested to speak with the local postmaster and that he called the EEOC to
complain about the spreading of rumors about his conduct. Even assuming
(without deciding) that Glover’s acts constituted statutorily-protected activity, the
amended complaint contains no allegation that the supposed adverse actions
Glover suffered (including a delay in activating his door-entry code, a delay in
receiving backpay, spreading of rumors, and having to continue working the same
route where his accuser lived) were in any way related to Glover’s protected
activity. Nor does Glover allege that the USPS decision-makers knew that Glover
had contacted the EEOC or knew that Glover sought to report to the Postmaster a
Title VII violation.
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Glover has also failed to state a plausible claim under Title VII for hostile
work environment. Taking the facts in the complaint as true and assuming Glover
experienced some harassment, the harassment was not “sufficiently severe or
pervasive to alter the conditions of [Glover’s] employment and create an abusive
working environment.” See Harris v. Forklift Sys.,
114 S.Ct. 367, 370 (1993).
About Glover’s Count Four, the district court committed no error in
dismissing Glover’s claim that he was “entitled to obtain relief for all claims
brought to the [EEOC]” when Glover failed to identify the claims he brought to the
EEOC. In addition, to the extent Glover contends that his Count Four constitutes
an alternate statement of his Title VII claims, Title VII is the only means by which
a federal employee may bring a federal claim for illegal discrimination against his
employer. See Canino,
707 F.2d at 472.
The district court also dismissed properly Glover’s Bivens 5 claim (Count
Five). USPS employees are precluded from raising Bivens claims arising from
employment with the USPS. See McCollum v. Bolger,
794 F.2d 602, 607-08 (11th
Cir. 1986).
AFFIRMED.
5
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
91 S.Ct. 1999 (1971).
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