Burdette Lowe v. Delta Air Lines Inc. ( 2018 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-13579
Non-Argument Calendar
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D.C. Docket No. 1:16-cv-03717-TWT
BURDETTE LOWE,
Plaintiff-Appellant,
versus
DELTA AIR LINES INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
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(April 4, 2018)
Before TJOFLAT, JULIE CARNES and HULL, Circuit Judges.
PER CURIAM:
Burdette Lowe, proceeding pro se on appeal, appeals the District Court’s
dismissal with prejudice of her employment discrimination claims under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e–2000e-17, and the Americans
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with Disabilities Act, 42 U.S.C. §§ 12101–12213, as well as her claims for
intentional infliction of emotional distress, breach of contract, ERISA interference,
and violation of the Rehabilitation Act, 29 U.S.C. §§ 701 et seq. The District
Court adopted the Magistrate Judge’s Final Report and Recommendation, which
recommended dismissal of her claims for failure to follow a court order because
she failed to timely file her Second Amended Complaint within twenty-one days of
the Magistrate Judge’s order instructing her to consolidate her two lawsuits against
Delta into one action. As an alternative ground, the Report and Recommendation
concluded that dismissal was warranted because Lowe failed to state a claim for
which relief could be granted and further found that dismissal with prejudice was
appropriate because allowing further amendment to her complaint would be futile.
She argues that her proposed Second Amended Complaint met the pleading
standard and that the Equal Employment Opportunity Commission was to blame
for causing her individual complaints to be untimely.
We conclude that the District Court did not err in dismissing Lowe’s
complaint because Lowe failed to state a plausible claim upon which relief could
be granted, and Lowe waived any objection to the Court’s dismissal with prejudice
on the ground that further amendment would be futile. We therefore affirm the
dismissal.
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I.
The District Court adopted the Magistrate Judge’s Final Report and
Recommendation in full. The Magistrate Judge recommended dismissal with
prejudice on alternative grounds: (1) failure to follow a court order and (2) failure
to state a claim, with further amendment being futile. To the extent the District
Court dismissed Lowe’s complaint with prejudice for failure to follow a court
order, the Court erred. Nevertheless, any error in this regard was harmless.
Lowe’s complaint failed to state a claim and she waived any objection to the
District Court’s dismissal of her complaint with prejudice on the ground that
permitting further amendment would be futile. We address these issues in turn.
a. Dismissal for Failure to Follow a Court Order
We review the dismissal of an action for failure to follow a court order for
abuse of discretion. Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir. 2006). A
district court is permitted to sua sponte dismiss an action under Federal Rule of
Civil Procedure 41(b) for failure to comply with a court order. See Lopez v.
Aransas Cty. Indep. Sch. Dist., 570 F.2d 541, 544 (5th Cir. 1978) (explicitly
addressing the district court’s sua sponte authority, in spite of the language of Fed.
R. Civ. P. 41(b) that references an involuntary dismissal only on motion of the
defendant). The Northern District of Georgia’s local rules specifically permit a
court to sua sponte dismiss a case when a plaintiff or plaintiff’s attorney has
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refused to obey a lawful court order. LR 41.3A(2), NDGa. Under certain
circumstances, failure to comply with a court order is grounds for dismissal with
prejudice. LR 41.3B, NDGa.; Fed. R. Civ. P. 41(b); see Slack v. McDaniel, 529
U.S. 473, 489, 120 S. Ct. 1595, 1606 (2000) (holding, in a case brought for habeas
corpus relief, that “failure to comply with an order of the court is grounds for
dismissal with prejudice”).
However, dismissals with prejudice are drastic remedies that are to be used
only where a lesser sanction would not better serve the interests of justice. Justice
v. United States, 6 F.3d 1474, 1482 n.15 (11th Cir. 1993). Thus, dismissals with
prejudice are inappropriate unless the district court finds both that a clear record of
delay or willful misconduct exists and that lesser sanctions are inadequate to
correct such conduct. Zocaras, 465 F.3d at 483. When a litigant has been
forewarned of the consequences of not following a court order and proceeds to
disregard it, the district court generally will not have abused its discretion by
dismissing the action. Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989).
Here, while the Federal Rules of Civil Procedure and the Northern District
of Georgia’s local rules both permit sua sponte dismissal of a case for failure to
adhere to a lawful court order, our precedent makes clear that dismissals with
prejudice are warranted only under narrow circumstances, and that a litigant should
be apprised of the consequences of failing to heed the district court’s directives.
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The record in this case does not clearly evince intentional delay or willful
misconduct on Lowe’s part. Lowe stated that she mistakenly believed, because of
her misinterpretation of the governing legal rules and her interpretation of the
deadlines on PACER, that she had twenty-one days from receipt of the Court’s
order to file her Second Amended Complaint, and that she was allotted three
additional days to allow for receipt by mail. Although the Magistrate Judge’s
order was clear as to the deadline, there is no indication that Lowe intentionally
disregarded it. And though she did so after the deadline had already passed, Lowe
filed a request for an extension of time within the mistaken timeframe she believed
to be applicable, which further suggests that Lowe’s failure to file her amended
complaint on time was not willful. In short, the record suggests negligence, not
willful misconduct, on Lowe’s part in filing her amended complaint after the
twenty-one day deadline. Under our precedent, mere negligence is not a proper
basis for dismissal with prejudice. Further, the Magistrate Judge’s order
instructing Lowe to file a new complaint did not inform her that dismissal with
prejudice would result if she failed to file her complaint on time.
Thus, the District Court erred to the extent it relied on Lowe’s failure to
follow the Magistrate Judge’s order as a proper basis for dismissal with prejudice.
However, any error in this regard was harmless, because the Magistrate Judge (and
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the District Court, in adopting the Final Report and Recommendation) correctly
found that Lowe failed to state a plausible claim for relief.
b. Dismissal for Failure to State a Claim
We review a district court’s ruling on a Fed. R. Civ. P. 12(b)(6) motion to
dismiss de novo. Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). Pro se
pleadings are to be construed liberally. Evans v. Ga. Reg’l Hosp., 850 F.3d 1248,
1253 (11th Cir. 2017), cert. denied, 138 S. Ct. 557 (2017). However, liberal
construction of pro se pleadings “does not give a court license to serve as de facto
counsel for a party, or to rewrite an otherwise deficient pleading in order to sustain
an action.” Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168–69 (11th Cir.
2014) (quotation omitted). We view a complaint in the light most favorable to the
plaintiff and accept all of the plaintiff’s well-pleaded facts as true. Am. United Life
Ins. Co. v. Martinez, 480 F.3d 1043, 1057 (11th Cir. 2007).
In order to survive a Rule 12(b)(6) motion to dismiss, a plaintiff “does not
need detailed factual allegations,” but must provide grounds for an entitlement to
relief that constitute more “than labels and conclusions” or “a formulaic recitation
of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555, 127 S. Ct. 1955, 1959 (2007). “Factual allegations must be enough to raise a
right to relief above the speculative level.” Id. A complaint must contain
“enough facts to state a claim to relief that is plausible on its face.” Brooks v.
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Warden, 800 F.3d 1295, 1300 (11th Cir. 2015) (quotation omitted). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (quotation omitted). We have stated that “conclusory allegations,
unwarranted deductions of facts or legal conclusions masquerading as facts will
not prevent dismissal.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188
(11th Cir. 2002).
Here, the District Court did not err in concluding that Lowe failed to state a
plausible claim for relief. As the Magistrate Judge observed, Lowe’s complaint
contained multiple deficiencies, including timeliness problems with her failure-to-
accommodate claims and her retaliation claims. 1 Her Rehabilitation Act claim
could not succeed because the Rehabilitation Act does not contain a standalone
private right of action. Rogers v. Frito-Lay, Inc., 611 F.2d 1074, 1078 (5th Cir.
1980). And, in any event, both Lowe’s Amended Complaint and Second Amended
Complaint were difficult to decipher and lacked the specificity required to survive
a motion to dismiss pursuant to Rule 12(b)(6).
1
In his order instructing Lowe to refile a consolidated second amended complaint, the
Magistrate Judge warned Lowe that if she failed to adhere to his order and file an amended
complaint within twenty-one days, he would review only the merits of her First Amended
Complaint and the claims therein when considering Delta’s motion to dismiss under Rule
12(b)(6). Nevertheless, in his Final Report and Recommendation, the Magistrate Judge reviewed
the merits of both Lowe’s proposed Second Amended Complaint and her First Amended
Complaint and found that both contained the same deficiencies. Hence, while in this opinion we
discuss primarily the Magistrate Judge’s review of Lowe’s Second Amended Complaint, we
conclude that his review and dismissal of her First Amended Complaint was correct as well.
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Lowe’s Second Amended Complaint was a typical “shotgun pleading,” a
complaint in which “each count incorporated by reference all preceding paragraphs
and counts of the complaint notwithstanding that many of the facts alleged were
not material to the claim, or cause of action, appearing in a count’s heading.”
Thompson v. RelationServe Media, Inc., 610 F.3d 628, 650 n.22 (11th Cir. 2010)
(Tjoflat, J., concurring in part and dissenting in part). Her seventy-six page
complaint set forth sixteen different causes of action, many duplicative and
overlapping, and it is not clear from the complaint exactly which of her various
factual allegations comprise her numerous claims for relief. Although courts are to
liberally construe pro se pleadings, as the Magistrate Judge did in analyzing
Lowe’s claim in his Report and Recommendation, they are not required “to rewrite
an otherwise deficient pleading in order to sustain an action.” GJR Invs., Inc. v.
Cty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled on other
grounds by Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937 (2009). Here, the
District Court would have to spend many hours sorting, separating, and matching
up the various factual allegations and claims, and would have to attempt a full-
scale rewrite of Lowe’s complaint in order to glean some cognizable basis for
relief from it. Delta would have to do the same in an attempt to respond to its
allegations.
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In addition to its unmanageability, Lowe’s complaint lacked specificity. As
the Magistrate Judge observed, Lowe’s allegations were generalized and
conclusory throughout her complaint. While we do not here discuss the Magistrate
Judge’s thorough review of every claim, several examples are illustrative. For one,
Lowe’s ERISA Interference count alleged in a conclusory manner that Delta’s
changing of her leave status from “NWA Disability Medical Leave” to
“Approved/Unapproved Medical Leave of Absence” was “without merit” and
interfered with her “rights to ERISA benefits including and not limited to dental,
medical, vision, and other unknown retiree benefits.” But Lowe never specified
those benefits in any detail, alleged that she previously received them, or specified
why Delta’s classification of her leave status was “without merit” or otherwise
improper.2
2
In analyzing the sufficiency of Lowe’s ERISA interference and ADA discrimination
claims, the Magistrate Judge applied the test used to measure whether a plaintiff has made out a
prima facie discrimination case as set forth by the Supreme Court in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). This standard should not have been invoked.
The Supreme Court and this Court have explained on numerous occasions that the McDonnell
Douglas burden-shifting framework is an evidentiary standard, not a pleading standard, and is
applicable at summary judgment rather than the pleading stage. See, e.g., Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 510, 122 S. Ct. 992, 997 (2002); Surtain v. Hamlin Terrace Found.,
789 F.3d 1239, 1246 (11th Cir. 2015) (per curiam). Thus, a plaintiff does not need to satisfy the
McDonnell Douglas standard to plead a plausible discrimination claim. Id. at 511, 122 S. Ct. at
997; Surtain, 789 F.3d at 1246. Nevertheless, an employment discrimination complaint must
still provide enough factual matter to plausibly suggest intentional discrimination. Surtain, 789
F.3d at 1246. Here, our de novo review of Lowe’s complaint reveals that her claims lack the
specificity necessary to make out a plausible discrimination claim. Therefore, the Magistrate
Judge’s application of the McDonnell Douglas framework was harmless.
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As to her harassment claims, which overlapped repeatedly with her various
ADA claims throughout her complaint, Lowe alleged that Delta created “a
pathological deceptive work/return-to-work environment [that] was hostile. No
one is comfortable around people who are constantly lying.” However, she never
gave any specifics as to what Delta did to create such an environment other than
offering settlements to her, which, in Lowe’s view, were harassing because they
required her to waive her rights to sue Delta under the ADA or Title VII of the
Civil Rights Act, and refusing to allow her physician to attend settlement
negotiations with her. This is not enough to set forth a plausible claim. To
successfully make out a harassment claim, a plaintiff must show that her workplace
was “permeated with discriminatory intimidation, ridicule, and insult, that is
sufficiently severe or pervasive to alter the conditions of [her] employment and
create an abusive working environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17,
21, 114 S. Ct. 367, 370 (1993) (quotations and citations omitted). As the
Magistrate Judge observed, however, Lowe
alleges that [Delta] met with [Lowe] on multiple times, permitted her
to look into and apply for available vacancies (which she did not do),
and permitted her reasonable extensions in light of the death of her
physician, Dr. Orme. That [Delta] did not provide the one
accommodation Plaintiff requested, or allow Dr. Orme to be
physically present in meetings, or provide an even greater extension,
is not ‘harassment.’” Lowe further alleges that Delta’s settlement
offers, which included releases from all potential ERISA and ADA
claims, constituted harassment. However, the act of making a
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settlement offer does not constitute harassment, and a litigant can
offer whatever settlement terms it wants.
With respect to her various retaliation claims, Lowe alleged that Delta
changed her termination code from “retired” to “resigned” in its internal employee
classification system to retaliate against her for bringing her claims. However,
Lowe attached, as an exhibit to her complaint, a letter from a Delta employee to
her former attorney explaining that Lowe was not old enough to retire and did not
possess the minimum number of years of service to be eligible for the retirement
benefits she sought. Lowe did not allege if or how she was or would have been
eligible for those benefits had Delta not changed her classification code.
In sum, the Magistrate Judge conducted a thorough analysis of Lowe’s
sixteen claims and determined correctly that she failed to state a plausible claim for
relief, even under a liberal reading of her complaint. The District Court
accordingly did not err in adopting the Magistrate Judge’s recommendation to
dismiss Lowe’s action.
As to whether the District Court erred by dismissing her complaint with
prejudice, Lowe did not raise or discuss the issue in her brief. She has thus waived
the issue. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam)
(“While we read briefs filed by pro se litigants liberally, issues not briefed on
appeal by a pro se litigant are deemed abandoned.” (citations omitted)); see also
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680–81 (11th Cir. 2014) (“To
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obtain reversal of a district court judgment that is based on multiple, independent
grounds, an appellant must convince us that every stated ground for the judgment
against him is incorrect. When an appellant fails to challenge properly on appeal
one of the grounds on which the district court based its judgment, he is deemed to
have abandoned any challenge of that ground, and it follows that the judgment is
due to be affirmed.”).
AFFIRMED.
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