Jordan v. Gwinnett County, et al

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Oct. 3, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 10-15967
Non-Argument Calendar
________________________
D.C. Docket No. 1:09-cv-03597-WCO
WALTON JORDAN,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
GWINNETT COUNTY,
SHERIFF R. L. (Butch) CONWAY,
llllllllllllllllllllllllllllllllllllllll Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(October 3, 2011)
Before HULL, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:

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Walton Jordan appeals the district court’s grant of summary judgment in
favor of the Gwinnett County Sheriff’s Department and Sheriff R. L. Conway, and
the court’s dismissal of Gwinnett County as a defendant in his pro se employment
discrimination action filed pursuant to the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621; and Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. § 2000e, et. seq. Jordan, a former deputy with the Gwinnett
County Sheriff’s Department, alleged that he was terminated based on his age and
religion. The evidence produced in the district court showed that Jordan was
terminated after appearing at his ex-wife’s church, the Word of Faith Church, on
February 10, 2008, despite having been told by the pastor on previous occasions
not to return. Jordan confronted the pastor, the police were called, and Jordan
eventually was arrested on a criminal trespass charge. Subsequently, the Gwinnett
County Sheriff’s Department conducted an internal investigation and ordered
Jordan not to return to the church. Jordan was terminated, although he was
acquitted of the criminal trespass charge. Jordan appealed his termination to the
Gwinnett County Merit Board, and, after a hearing, the Merit Board upheld the
termination decision.
On appeal, the defendants argue that Jordan abandoned his age
discrimination claim. Jordan argues that the district court erred in granting the
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defendants’ motion for summary judgment with respect to his religious
discrimination claim. He also contends that the court erred in dismissing Gwinnett
County as a defendant and in refusing to consider evidence that he submitted in
opposition to the defendants’ motion for summary judgment.
A. Abandonment of Age Discrimination Claim
Although we construe pro se briefs liberally, “issues not briefed on appeal
by a pro se litigant are deemed abandoned.” Timson v. Sampson, 518 F.3d 870,
874 (11th Cir. 2008); see Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570,
1573 n.6 (11th Cir. 1989) (providing that passing references to issues are
insufficient to raise a claim on appeal). A party’s “mere statement in his reply
brief that he did not abandon . . . additional claims is insufficient to raise them on
appeal.” Diaz v. United States, 930 F.2d 832, 834 n.1 (11th Cir. 1991).
Even if Jordan’s pro se appellate brief is construed liberally, the few passing
references that he makes to his age discrimination claim fail to preserve the claim
on appeal. Furthermore, Jordan’s argument in his reply brief that he did not
abandon the issue on appeal is insufficient to preserve the issue. Accordingly, we
do not address Jordan’s age discrimination claim because he has abandoned the
issue.
B. Religious Discrimination
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We review a district court’s grant of summary judgment de novo, viewing
all evidence and drawing all reasonable inferences in favor of the non-moving
party. Galvez v. Bruce, 552 F.3d 1238, 1241 (11th Cir. 2008). Summary
judgment is appropriate only “if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a).
Title VII makes it unlawful for an employer to discharge an employee on the
basis of the employee’s religion. 42 U.S.C. § 2000e-2(a)(1). “Religion” is
defined to include “all aspects of religious observance and practice, as well as
belief, unless an employer demonstrates that he is unable to reasonably
accommodate . . . an employee’s . . . religious observance or practice without
undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j).
A plaintiff may establish a Title VII claim through the introduction of direct
evidence of discrimination or circumstantial evidence that creates an inference of
discrimination. Hinson v. Clinch Cnty. Bd. of Educ., 231 F.3d 821, 827 (11th Cir.
2000).
When Title VII claims are supported by circumstantial evidence, we apply
the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S. Ct. 1817 (1973). Brooks v. Cnty. Comm’n of Jefferson Cnty.,
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446 F.3d 1160, 1162 (11th Cir. 2006). Under this framework, the plaintiff bears
the initial burden of establishing a prima facie case of discrimination. Id. A
plaintiff may establish a prima facie case of religious discrimination “by
presenting evidence sufficient to prove that (1) he had a bona fide religious belief
that conflicted with an employment requirement; (2) he informed his employer of
his belief; and (3) he was discharged for failing to comply with the conflicting
employment requirement.” Morrissette-Brown v. Mobile Infirmary Med. Ctr., 506
F.3d 1317, 1322 (11th Cir. 2007).
The district court did not err in finding that Jordan failed to establish a
prima facie case of religious discrimination based on circumstantial evidence. No
one from the Sheriff’s Department ordered Jordan to stay away from the Word of
Faith Church until after the February 10, 2008, incident. Jordan testified at the
Merit Board hearing that he never returned to the church after February 10, 2008,
and there is nothing in the record to indicate otherwise. Therefore, Jordan could
not have been terminated for failing to comply with the Sheriff’s Department’s
requirement that he avoid the church.
C. Dismissal of Gwinnett County
We review de novo the district court’s dismissal of an improper defendant.
See First Vagabonds Church of God v. City of Orlando, 638 F.3d 756, 760 (11th
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Cir. 2011) (noting that we review questions of law de novo); Baptista v. JP
Morgan Chase Bank, 640 F.3d 1194, 1196 (11th Cir. 2011) (reviewing de novo
the district court’s grant of the defendant’s motion to dismiss for failure to state a
claim). Title VII and the ADEA authorize suits against an employer. 29 U.S.C.
§ 623(a); 42 U.S.C. § 2000e-2(a); Morrison v. Amway Corp., 323 F.3d 920, 926
(11th Cir. 2003) (providing that, under § 623(a)(1), a plaintiff can recover “only if
he is able to prove an ‘employer’ discriminated against him . . . on the basis of
age”).
Under Georgia law, deputies are employed by Sheriff’s Departments, not
counties. See Manders v. Lee, 338 F.3d 1304, 1310-11 (11th Cir. 2003). In
Manders, we explained that, under Georgia law, counties are separate entities
independent of the sheriff’s office, the sheriff is not a subunit or division of county
government, and “[s]heriffs alone hire and fire their deputies.” Id. A local
government may be sued under 42 U.S.C. § 1983 for depriving an individual of
his constitutional rights only if the alleged injury is caused by an official policy or
custom. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694, 98
S. Ct. 2018, 2037-38 (1978)
The district court was correct that Jordan could not assert his ADEA and
Title VII claims against Gwinnett County, because those statutes authorize suit
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against an employer, and Jordan was employed by the Sheriff’s Department,
which, under Georgia law, is a separate entity from the County. Furthermore,
although Jordan alleged in his complaint that the Gwinnett County Merit Board
deprived him of due process, he failed to state a claim under § 1983 because he
did not allege that the deprivation of his due process rights was caused by an
official policy or custom. Accordingly, the district court did not err in dismissing
Gwinnett County from the lawsuit.
D. Failure to Consider Evidence Submitted in Opposition to Summary
Judgment
“Although pro se litigants are not held to the same standards of compliance
with formal or technical pleadings rules applied to attorneys, we have never
allowed such litigants to oppose summary judgments by the use of unsworn
materials.” Gordon v. Watson, 622 F.2d 120, 123 (11th Cir. 1980).
The majority of the exhibits submitted by Jordan in support of his response
to the summary judgment motion were unsworn and unverified and, therefore, the
district court did not err in excluding them from consideration. However, two
transcripts—the transcript of Jordan’s Merit Board hearing and the transcript of
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his 2009 jury trial on the criminal trespass charge—do contain court reporter
certificates. Thus, the district court erred in declining to consider these transcripts
when ruling on the defendants’ motion for summary judgment. Nevertheless, a
review of the transcripts indicates that the district court’s grant of summary
judgment on Jordan’s preserved religious discrimination claim was proper, even if
these documents are considered. Accordingly, we affirm the district court’s grant
of summary judgment on Jordan’s age and religious discrimination claims, as well
as the court’s dismissal of Gwinnett County.
AFFIRMED.1
Jordan’s request for oral argument is denied.1
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