Rachel Mosby v. City of Byron, Georgia

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10377
Non-Argument Calendar
____________________
RACHEL MOSBY,
Plaintiff-Appellant,
versus
CITY OF BYRON, GEORGIA,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:20-cv-00163-TES
____________________
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2 Opinion of the Court 21-10377
Before WILSON, LAGOA , and BRASHER , Circuit Judges.
PER CURIAM:
Rachel Mosby, a former fire chief for the City of Byron,
Georgia, appeals the district court’s grant of summary judgment to
the City on several Title VII and ADA claims. Mosby also chal-
lenges the district court’s dismissal of her procedural due process
claims under the United States and Georgia Constitutions and her
state law defamation claim. Upon careful consideration, we affirm.
I. BACKGROUND
Mosby was the City of Byron’s fire chief for eleven years be-
fore being terminated in 2019. Afterwards, she retained counsel
and filed a charge of discrimination with the Equal Employment
Opportunity Commission alleging that the City had violated Title
VII and the ADA. The City filed a position statement with the
Commission that responded to the merits of Mosby’s charge. Nei-
ther party disputes that the charge was never properly verified, or
that there was any attempt to cure verification until after Mosby
had already requested and the Department of Justice had already
issued a right to sue letter.
Upon being authorized to do so, Mosby brought a lawsuit
against the City in the Middle District of Georgia. In addition to her
Title VII and ADA claims (Counts I–IV), Mosby alleged procedural
due process violations under the United States and Georgia Consti-
tutions and defamation under Georgia state law. Counts V and VI
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21-10377 Opinion of the Court 3
of the complaint alleged that Mosby had a property interest in con-
tinued employment as the City’s fire chief based on a “long-stand-
ing personnel policy” allowing department heads to appeal adverse
employment actions. The City notified her on November 13, 2018,
that it would be changing this policy to disallow appeals by depart-
ment heads effective January 14, 2019. Mosby was terminated
more than four months after the change went into effect. Count
VII further alleged that the City “made and published false [verbal
and written] statements to the media and other third parties” re-
garding Mosby that “were calculated to injure [Mosby’s] reputa-
tion,” “imputed . . . a want of integrity and misfeasance in her of-
fice,” and caused damages “including but not limited to a complete
inability to secure similar employment in her field.”
The City moved to dismiss Mosby’s Title VII and ADA
claims on the grounds that failure to verify a charge of discrimina-
tion required dismissal as a matter of law. It also argued that
Counts V–VII failed to state valid claims for relief. To consider mat-
ters outside the pleadings, the district court converted the City’s
motion to dismiss to one for summary judgment. The court then
granted summary judgment to the City on Mosby’s Title VII and
ADA claims and dismissed her due process and defamation claims.
Mosby timely appealed.
II. STANDARDS OF REVIEW
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4 Opinion of the Court 21-10377
We review a district court’s dismissal for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6)
de novo, “ac-
cepting the allegations in the complaint as true and construing
them in the light most favorable to the plaintiff.”
Mills v. Foremost
Ins. Co., 511 F.3d 1300, 1303 (11th Cir. 2008) (internal quotation
marks omitted). We also review grants of summary judgment
de
novo, “apply[ing] the same legal standards as the district court.”
Custom Mfg. and Eng’g, Inc. v. Midway Servs., Inc., 508 F.3d 641,
646 (11th Cir. 2007). Finally, “[w]e may affirm the district court’s
judgment on any ground that appears in the record, whether or not
that ground was relied upon or even considered by the court be-
low.”
Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th
Cir. 2007).
III. DISCUSSION
a. Mosby’s Title VII and ADA Claims
Mosby first argues that the district court erred by granting
summary judgment to the City on her various Title VII and ADA
claims based on the failure to submit a verified charge of discrimi-
nation. Because the City raised the issue of verification in a pre-
answer motion to dismiss and the parties agree that Mosby’s charge
was never verified or properly amended, we disagree.
Employees alleging violations of Title VII or the ADA must,
before bringing suit in federal court, submit a charge of discrimina-
tion to the Commission. 42 U.S.C. § 2000e-5(f). Such charges “shall
be in writing under oath or affirmation and shall contain such
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21-10377 Opinion of the Court 5
information and be in such form as the Commission requires.”
Id.
§ 2000e-5(b). The Commission’s regulations mandate that a charge
“shall be verified,” meaning that it must be “sworn to or affirmed
before a notary public, designated representative of the Commis-
sion, or other person duly authorized by law to administer oaths
and take acknowledgements, or supported by an unsworn declara-
tion in writing under penalty of perjury.” 29 C.F.R. §§ 1601.3(a),
1601.9.
An employee who files an unverified charge may cure the
lack of verification through an amendment, which will then “relate
back” to the initial filing of the charge. 29 C.F.R. § 1601.12(b);
see
Edelman v. Lynchburg College, 535 U.S. 106 (2002). The em-
ployee’s window to amend ceases when the time for the employer
to respond to the charge elapses.
Edelman, 535 U.S. at 113. Thus, a
charge neither filed under oath or affirmation nor subsequently
cured by amendment fails to satisfy the statutory requirement that
an employee submit his or her charge to the Commission.
Vason
v. City of Montgomery, 240 F.3d 905, 907 (11th Cir. 2001). Accord-
ingly, we have affirmed summary judgment in favor of Title VII
defendants when an employee files a lawsuit based on an unveri-
fied charge.
Id.
The Supreme Court has held that an employer may forfeit
the issue of an employee’s failure to properly submit his or her
charge to the Commission by failing to timely raise the issue in fol-
low-on litigation. In
Fort Bend County v. Davis, the Court held that
a plaintiff’s failure to comply with Title VII’s charge-filing
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6 Opinion of the Court 21-10377
requirement does not strip the federal courts of jurisdiction to con-
sider a follow-on federal lawsuit.
Fort Bend Cnty. v. Davis, 587 U.S.
___, 139 S. Ct. 1843, 1852 (2019). Unlike a jurisdictional issue, the
Court reasoned that the failure to comply could be forfeited by the
parties. Accordingly, the Court affirmed the Fifth Circuit’s deci-
sion, which held that an employer forfeited the issue by failing to
raise it until approximately four years into the litigation after “an
entire round of appeals all the way to the Supreme Court.”
See id.
at 1847–48, 1852.
Mosby argues that her failure to file a verified charge should
be excused under
Fort Bend County, but we disagree. In
Fort Bend
County, the Supreme Court affirmed a decision holding that the
charge-filing requirement was forfeited when the employee at-
tempted to supplement the allegations in her charge by handwrit-
ing additional information on a state agency’s intake questionnaire
and the employer waited four years and “an entire round of appeals
all the way to the Supreme Court” to first raise the issue in the liti-
gation.
Davis v. Fort Bend Cnty., 893 F.3d 300, 208 (5th Cir. 2018),
aff’d, 139 S. Ct. at 1847–48, 1852. Mosby, by contrast made no such
attempts to make handwritten supplements to her charge, which
she filed through counsel. And the City raised the verification issue
in a pre-answer motion to dismiss rather than after an exhaustive
series of appeals. None of our precedents nor the Supreme Court’s
holding in
Fort Bend County suggest that the City forfeited
Mosby’s failure to verify her charge or properly comply with Title
VII’s administrative exhaustion requirement. Because Mosby did
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21-10377 Opinion of the Court 7
not properly submit her charge of discrimination to the Commis-
sion, the district court correctly granted summary judgment on her
Title VII and ADA claims.
b. Mosby’s Due Process Claim
Mosby’s next argument—that the district court erred by dis-
missing her procedural due process claims under the United States
and Georgia constitutions—fares no better.
The district court dismissed Mosby’s complaint because she
failed to allege that she had a protected property interest in her em-
ployment. A complaint fails to state a claim when it does not in-
clude “enough factual matter” to “give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests.”
Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555–56 (2007). Although a com-
plaint need not contain detailed factual allegations, “a plaintiff’s ob-
ligation to provide the grounds of his entitlement to relief requires
more than labels and conclusions.”
Id. at 555 (cleaned up). “Naked
assertions devoid of further factual enhancement” will not suffice.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). The com-
plaint must contain enough facts to make a claim for relief plausible
on its face, that is, it must “allow the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.”
Id. (cleaned up). Notably, when a more carefully drafted complaint
might have resolved a pleading deficiency, “[a] district court is not
required to grant a plaintiff leave to amend [her] complaint
sua
sponte when the plaintiff, who is represented by counsel, never
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8 Opinion of the Court 21-10377
filed a motion to amend nor requested leave to amend before the
district court.”
Wagner v. Daewoo Heavy Indus. Am. Corp., 314
F.3d 541, 542 (11th Cir. 2002).
To sufficiently allege a procedural due process claim, Mosby
must allege that she had a property interest and that the City de-
prived her of that interest.
See Ross v. Clayton Cnty., 173 F.3d 1305,
1307 (11th Cir. 1999). Whether an employee has a property interest
in continued employment is a question of substantive state law.
Adams v. Bainbridge-Decatur Cnty. Hosp. Auth., 888 F.2d 1356,
1363 (11th Cir. 1989) (quoting
Nicholson v. Gant, 816 F.2d 591, 597
(11th Cir. 1987). We have held that “in Georgia, an at-will em-
ployee typically does not have a reasonable expectation of contin-
ued employment sufficient to form a protectable property inter-
est.”
Wofford v. Glynn Brunswick Mem’l Hosp., 864 F.2d 117, 119
(11th Cir. 1989); O.C.G.A. § 34-7-1 (“An indefinite hiring may be
terminated at will by either party.”);
see also Wilson v. City of Sar-
dis, 590 S.E.2d 383, 385 (Ga. Ct. App. 2003) (holding that “‘at will’
employees have no legitimate claim of entitlement to continued
employment and, thus, no property interest protected by the due
process clause”). Public employees, however, have a property in-
terest in continued employment under a civil service system if they
are terminable only for cause based on “[a]n explicit contractual
provision, rules, or common understandings.”
DeClue v. City of
Clayton, 540 S.E.2d 675, 677 (Ga. Ct. App. 2000);
see also Brett v.
Jefferson Cnty., 123 F.3d 1429, 1433–34 (11th Cir. 1997).
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As an initial matter, Mosby has abandoned any challenge to
the district court’s dismissal based on one issue. Mosby’s reply brief
raises, for the first time in this appeal, an argument that the district
court improperly considered matters outside the pleadings in de-
ciding the City’s motion to dismiss. In reviewing a district court’s
dismissal under Rule 12(b)(6), issues not raised in a party’s initial
brief are considered abandoned.
Timson v. Sampson, 518 F.3d 870,
874 (11th Cir. 2008);
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d
678, 681–83 (11th Cir. 2014). Thus, by not raising the issue in her
initial briefing, Mosby has abandoned it.
As to the merits of the district court’s decision, we conclude
that it properly held that Mosby had not pleaded sufficient facts to
establish a property interest in her continued employment with the
City as fire chief. Mosby cites the City’s “long-standing personnel
policy” as the root of her property interest in continued employ-
ment. But the personnel policies cited in Mosby’s pleadings placed
her under the authority of the City Administrator and made her
position terminable at will. Specifically, Section 8.1(K) of the City’s
personnel policy, as effective on the date of Mosby’s firing and pur-
suant to the City’s 2018 amended Charter, expressly provided that
“all appointive officers and director shall be employees at-will and
subject to removal or suspension at any time by the appointing au-
thority unless otherwise provided by law or ordinance.” Similarly,
other sections of the Charter, as amended in 2018, provided that
“[a]ll appointive officers and directors shall be employees at-will
and subject to removal or suspension at any time by the city
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10 Opinion of the Court 21-10377
administrator unless otherwise provided by law or ordinance.” Be-
cause she was an at-will employee, Mosby had no property interest
in continued employment under Georgia law.
DeClue, 540 S.E.2d
at 677.
Mosby argues that, despite the express language of the per-
sonnel policies, other allegations support her position that she had
a property interest in continued employment. We disagree. Alt-
hough Mosby was designated as a non-probationary employee, the
rules specifically provided that her position was at-will. No more
successful is Mosby’s reliance on the City’s disciplinary policy,
which expressly declined to deprive a supervisor of the ability to
“immediately terminate an employee for any one of the reasons
listed in this policy.” Mosby’s reliance on outdated policies and reg-
ulations that she admits were changed months before she was fired
is also unavailing. Because Mosby did not adequately plead a prop-
erty interest in her continued employment with the City and failed
to seek leave to amend her deficient pleadings, the district court did
not err by dismissing her due process claims.
Wagner, 314 F.3d at
542.
c. Mosby’s Defamation Claim
Mosby’s final argument—that the district court improperly
dismissed her defamation claim under Georgia law—also fails. In
Georgia, a defamation plaintiff must allege facts showing: “(1) a
false and defamatory statement about [oneself]; (2) an unprivileged
communication to a third party; (3) fault by the defendant
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21-10377 Opinion of the Court 11
amounting to at least negligence; and (4) special damages or defam-
atory words that are injurious on their face.”
Lewis v. Meredith
Corp., 667 S.E.2d 716, 718 (Ga. Ct. App. 2008) (internal quotation
marks omitted). When the plaintiff in a defamation action is a pub-
lic figure, he or she must also prove actual malice.
New York Times
Co. v. Sullivan, 376 U.S. 254, 279–80 (1964);
Williams v. Tr. Co.,
230 S.E.2d 45, 52 (Ga. Ct. App. 1976).
Mosby argues that she adequately pleaded actual malice, a
required element of her claim. We conclude that she did not.
Count VII of Mosby’s complaint merely recited the bare elements
of libel and slander under Georgia law, mimicking the statutory
language in exactly the type of “the-defendant-unlawfully-harmed-
me accusation” that the Supreme Court disapproved of in
Iqbal.
556 U.S. at 678. Nothing on the face of Count VII plausibly alleged
that the City made any false statements with actual malice. And
although Count VII incorporates the complaint’s factual allega-
tions, those allegations mention statements only in the context of
the City’s nondiscriminatory explanations for terminating Mosby
and, likewise, do not allege actual malice. The complaint even ad-
mitted that one alleged false statement might have been “based on
inaccurate information,” instead of knowingly false. Mosby has not
alleged sufficient facts to allow a reasonable inference that the City
is liable for defamation.
Id. at 678.
Finally, Mosby never filed a motion or requested leave to
amend after being alerted to her pleading deficiencies by the City’s
motion to dismiss. The district court was not required to cure
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12 Opinion of the Court 21-10377
Mosby’s deficient pleadings where Mosby herself chose not to
. See
Wagner, 314 F.3d at 542. Thus, the district court did not err by dis-
missing Mosby’s state law defamation claim.
IV. Conclusion
For the foregoing reasons, the district court’s summary
judgment on Mosby’s Title VII and ADA claims and its dismissal of
her due process and defamation claims are AFFIRMED.
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