Lawrence Leitgeb v. Sark Wire Corporation - GA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13683
Non-Argument Calendar
____________________
LAWRENCE J. LEITGEB,
Plaintiff-Appellant,
versus
SARK WIRE CORPORATION - GA,
Defendant- Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 2:21-cv-00259-RWS
____________________
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2 Opinion of the Court 22-13683
Before WILSON, L UCK , and L AGOA , Circuit Judges.
PER CURIAM:
Plaintiff Lawrence Leitgeb, proceeding pro se, appeals the
district court’s order granting Defendant Sark Wire Corporation’s
(“Sark Wire”) motion to dismiss Leitgeb’s workplace discrimina-
tion claim. After careful review, we affirm.
I.
Because the procedural posture of this case involves a Fed-
eral Rule of Civil Procedure 12(b)(6) motion, we must accept the
allegations of plaintiff’s complaint as true and construe them in the
light most favorable to the plaintiff. Chaparro v. Carnival Corp., 693
F.3d 1333, 1335 (11th Cir. 2012). The facts set forth in this section
of the opinion therefore are taken from the complaint and con-
strued in the light most favorable to the plaintiff.
On October 13, 2021, a Sark Wire employee posted memo-
randa informing other Sark Wire employees that an individual
within the company had been diagnosed with COVID-19, that the
company would be closed the following day for sanitization, and
that all Sark Wire employees would need to receive a COVID-19
test to return to work. On October 15, 2021, Leitgeb received a
text message asking for an update on his COVID-19 test results, to
which he responded that he was unable to get tested due to firmly
held religious beliefs. Linda Martin, a human resources director at
Sark Wire, called Leitgeb and informed him that nineteen of his
coworkers had tested positive for COVID-19 and that he could not
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22-13683 Opinion of the Court 3
return to work until he received a COVID-19 test. On October 18,
2021, another Sark Wire employee confirmed that Leitgeb could
not come to work without the test results.
On October 19, 2021, Leitgeb sent a letter to Martin explain-
ing his religious objections to receiving a COVID-19 test. In partic-
ular, he stated:
My reasons for opposing the testing procedure is
more difficult to articulate yet I will try. COVID test-
ing is a very intrusive procedure. It requires the in-
sertion of a padded stick up a person’s nostril. This
intrusion presents the manufacturer of the test the op-
portunity to plant an infectious disease much the
same way allowing an officer to search a vehicle pre-
sents the opportunity to plant contraband. I know
many will say that this simply does not happen. I be-
lieve otherwise.
I believe that if the government/industrial complex
can lie about the vaccines, they will lie about the test
procedure as well. In fact, this feels like all one big lie.
COVID-19 in my opinion is about as real as any other
flu. I also believe that by submitting to the test, I will
be contributing to the falsification of data that our
government/industrial complex will use to justify the
vaccine. (I expect to test positive for the COVID virus
because I already have natural immunity.) . . . .
(Footnotes omitted).
On October 20, 2021, Martin responded to the letter, stating
that Leitgeb’s objections to the testing requirement appeared to be
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4 Opinion of the Court 22-13683
based on his suspicion of the legitimacy of the COVID-19 pandemic
broadly, not on any sincerely held religious belief. Martin further
stated that, even if Leitgeb’s objections were based on sincerely
held religious beliefs, an exemption from the testing requirement
would be denied because it would cause undue hardship on Sark
Wire’s workplace safety. Martin notified Leitgeb that he was
placed on unpaid leave until he no longer posed a risk to other Sark
Wire employees.
On November 2, 2021, Leitgeb filed suit against Sark Wire
in state court, and Sark Wire removed the complaint to federal
court on December 2, 2021. In his complaint, Leitgeb alleged vio-
lation of his rights under the First Amendment, the Fifth Amend-
ment, the Thirteenth Amendment, the Fourteenth Amendment,
the Nuremberg Code, and Title VII of the Civil Rights Act. On
December 29, 2021, Sark Wire filed a motion to dismiss Leitgeb’s
complaint. Leitgeb responded in opposition on January 20, 2022,
and Sark Wire replied on February 1, 2022. On August 7, 2022,
Leitgeb filed a charge of discrimination with the EEOC.
On September 21, 2022, the district court granted Sark
Wire’s motion to dismiss in full. The district court first determined
that Leitgeb’s constitutional claims failed at the threshold because
Sark Wire was not a state actor. In particular, the district court
reasoned that Leitgeb did not allege facts showing that Sark Wire
was a state actor under the state compulsion test, the public func-
tion test, or the nexus/joint action test. The district court also con-
cluded that Sark Wire did not violate the Thirteenth Amendment
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22-13683 Opinion of the Court 5
because Leitgeb did not allege facts showing that he was forced to
work, that he faced legal sanctions for declining a COVID-19 test,
or that he was prevented from obtaining employment elsewhere.
As to Leitgeb’s alleged violation under the Nuremberg Code, the
district court concluded that the testing policy was not comparable
to forced experimentation and dismissed the claim. Finally, the
district court dismissed Leitgeb’s claims under Title VII because Ti-
tle VII did not require Sark Wire to prioritize Leitgeb’s beliefs over
the health and safety of its other employees as it dealt with a
COVID-19 outbreak.
Leitgeb timely appealed.
II.
We review de novo a district court’s order of dismissal, “ac-
cepting the allegations in the complaint as true and construing
them in the light most favorable to the plaintiff.” Mesa Valderrama
v. United States, 417 F.3d 1189, 1194 (11th Cir. 2005). A complaint
must articulate “enough facts to state a claim to relief that is plau-
sible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
However, “the tenet that a court must accept as true all of the alle-
gations contained in a complaint is inapplicable to legal conclu-
sions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
III.
On appeal, Leitgeb argues that the district court erred in dis-
missing his constitutional claims because Sark Wire was a state ac-
tor under the state compulsion test and the nexus/joint action test.
He argues that the “plethora of recent rules and regulations, fears
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6 Opinion of the Court 22-13683
of fines and fees, myriad of mandates, and financial incentives,”
along with President Biden’s speeches on COVID-19, elevated Sark
Wire to a state actor.
“[T]he state-action requirement reflects judicial recognition
of the fact that ‘most rights secured by the Constitution are pro-
tected only against infringement by governments.’” Lugar v. Ed-
mondson Oil Co., 457 U.S. 922, 936 (1982) (quoting Flagg Brothers Inc.
v. Brooks, 466 U.S. 149, 156 (1978)). We rely on three primary tests
in evaluating whether a private entity’s actions rise to the level of
state action: (1) the state compulsion test; (2) the public function
test; and (3) the nexus/joint action test. Nat’l Broad. Co. v. Commc’ns
Workers of Am., AFL-CIO, 860 F.2d 1022, 1026–27 (11th Cir. 1988).
Under the state compulsion test, a plaintiff must show that the state
“has coerced or at least significantly encouraged the action alleged
to violate the Constitution.” Rayburn ex rel. Rayburn v. Hogue, 241
F.3d 1341, 1347 (11th Cir. 2001). Under the nexus/joint action test,
a plaintiff must show that the state has “so far insinuated itself into
a position of interdependence with the private party that it was a
joint participant in the enterprise.” Id. (quoting Nat’l Broad. Co.,
860 F.2d at 1026–27). To charge a private party with state action
under this standard, the governmental body and private party must
be intertwined in a symbiotic relationship that must involve the al-
leged constitutional violation. Nat’l Broad Co., 860 F.2d at 1026.
The mere fact that a business is subject to State regulation does not
by itself convert its action into that of the State. Blum v. Yaretsky,
457 U.S. 991, 1004 (1982).
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22-13683 Opinion of the Court 7
Here, the district court did not err when it found that Sark
Wire was not a state actor. Under the state compulsion test, Leit-
geb failed to plausibly allege that the state coerced or encouraged
Sark Wire to place him on unpaid leave after he refused to receive
a COVID-19 test. Rayburn, 241 F.3d at 1347. Indeed, Leitgeb’s
complaint mentions no tangible connection between any state ac-
tion and Sark Wire’s decision to place him on unpaid leave. And
under the nexus/joint action test, he failed to identify any statute,
regulation, or executive order that mandated Sark Wire to require
COVID-19 testing or that mandated placing him on unpaid leave
when he refused to comply. Id. Leitgeb states that human resource
directors are an “extension of the government, part of the govern-
ment-industrial complex,” but alleges no actual statute, regulation,
or executive order mandating Sark Wire’s actions. And President
Biden’s speeches on the topic are not sufficient to show such a con-
nection. We thus conclude that the district court did not err in
determining that Sark Wire was not a state actor subject to consti-
tutional claims.
IV.
Leitgeb next argues that the district court erred in dismissing
Leitgeb’s Thirteenth Amendment claim because forcing someone
to receive a COVID-19 test “encroaches on the status of slavery.”
The Thirteenth Amendment of the United States Constitu-
tion provides that “[n]either slavery nor involuntary servitude, ex-
cept as punishment for crime whereof the party shall have been
duly convicted, shall exist within the United States, or any place
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8 Opinion of the Court 22-13683
subject to their jurisdiction.” U.S. Const. amend. XIII. In order to
find a condition of involuntary servitude, the victim must have had
“no available choice but to work or be subject to legal sanction.”
United States v. Kozminski, 487 U.S. 931, 943 (1988).
Here, Leitgeb concedes in his brief that he was not pre-
vented from working elsewhere. Because Leitgeb failed to plausi-
bly allege that he had no choice but to work for Sark Wire or be
subject to legal sanction, see id., we conclude that the district court
did not err in concluding that he failed to state a claim under the
Thirteenth Amendment.
V.
As to his claim under the Nuremberg Code, Leitgeb argues
that the district court erred in dismissing his claim because of the
experimental nature of the COVID-19 vaccine and tests.
Certain crimes against humanity violate basic precepts of in-
ternational law, and courts are permitted to give some redress for
violations of clear and unambiguous international human rights
protections. See Jesner v. Arab Bank, PLC, 138 S. Ct. 1386, 1397
(2018). But this redress extends to a private right of action for vio-
lations of international law “only where there is a statute expressing
Congress’s intention to permit private suits.” Ungaro-Benages v.
Dresdner Bank AG, 379 F.3d 1227, 1232 n.7 (11th Cir. 2004). Because
Leitgeb fails to reference any statute that provides a private right of
action for a Nuremberg Code violation, we conclude that the dis-
trict court did not err in dismissing his claim under the Nuremberg
Code.
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22-13683 Opinion of the Court 9
VI.
Finally, Leitgeb argues that the district court erred in dis-
missing his Title VII claim because Sark Wire failed to show undue
hardship in accommodating his request for exemption.
Title VII prohibits an employer from discriminating against
an employee on the basis of that person’s race, color, religion, sex,
or national origin. 42 U.S.C. § 2000e-2(a)(1). It defines religion as
including “all aspects of religious observance and practice, as well
as belief,” and notes that an employer must accommodate religious
beliefs unless it demonstrates that it “is unable to reasonably ac-
commodate an employee’s . . . religious observance or practice
without undue hardship on the conduct of the employer’s busi-
ness.” Id. § 2000e(j).
In Georgia, an aggrieved employee must file a charge of dis-
crimination with the Equal Employment Opportunity Commis-
sion (“EEOC”) within 180 days of the alleged unlawful employ-
ment practice, before bringing a Title VII suit in federal court. See
id. § 2000e-5(e); Watson v. Blue Circle, Inc., 324 F.3d 1252, 1258 (11th
Cir. 2003). Compliance with the 180-day filing period is not a juris-
dictional prerequisite to filing a Title VII suit, and it is subject to
waiver and tolling when equity so requires. Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 397–98 (1982). However, filing a com-
plaint with the EEOC is a prerequisite to the equitable exceptions
to administrative exhaustion. Hines v. Widnall, 334 F.3d 1253, 1257
(11th Cir. 2003). Thus, a plaintiff’s failure to begin or exhaust
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administrative remedies serves as an absolute bar to his claims. Id.;
Grier v. Sec’y of the Army, 799 F.2d 721, 724 (11th Cir. 1986).
Here, while the district court considered only whether Sark
Wire’s refusal to grant a religious exemption was based on more
than a de minimis cost, we generally may affirm for any reason sup-
ported by the record. Hubbard v. BankAtlantic Bancorp, Inc., 688 F.3d
713, 716 (11th Cir. 2012). And the record shows that Leitgeb waited
almost ten months after the October 20, 2021, letter to file a dis-
crimination charge with the EEOC. We thus conclude that Leit-
geb’s Title VII claim is time-barred because he failed to comply
with the 180-day filing period and failed to exhaust his administra-
tive remedies. See § 2000e-5(e); Watson, 324 F.3d at 1258. Accord-
ingly, we affirm the district court’s dismissal of his Title VII claim.
IV. CONCLUSION
For all these reasons, we affirm the district court’s grant of
Sark Wire’s motion to dismiss.
AFFIRMED.
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