Hnan Alhallaq v. Radha Soami Trading, LLC

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JUNE 5, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
Nos. 11-15554, 11-15651
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cv-00700-RGV
HNAN ALHALLAQ,
Plaintiff-Appellant,
versus
RADHA SOAMI TRADING, LLC,
d.b.a. Seven Oaks Academy,
Defendant-Appellee.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
________________________
(June 5, 2012)
Before CARNES, WILSON and BLACK, Circuit Judges.
PER CURIAM:

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Hnan Alhallaq, a female Muslim proceeding pro se, appeals the district
court’s order dismissing her claims, in a lawsuit for hostile work environment
based on religious harassment, in violation of Title VII of the Civil Rights Act of
1964 (Title VII), 42 U.S.C. § 2000e-2(a)(1), conspiracy to violate her civil rights,
in violation of 42 U.S.C. § 1985(2), and negligent hiring, retention, supervision,
and failure to train, in violation of Georgia state law, as well as the court’s denial
of her motion to amend her complaint, pursuant to Federal Rule of Civil Procedure
15(a)(2). Alhallaq raises several issues on appeal, which we address in turn. After
review, we affirm the district court.
I.
Alhallaq contends her hostile work environment claim did not warrant
dismissal because the religious harassment was sufficiently severe and pervasive
to establish a Title VII violation.
We review de novo the district court’s grant of a motion to dismiss a
complaint for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6), accepting the allegations in the complaint as true and construing them in
the light most favorable to the plaintiff. Timson v. Sampson, 518 F.3d 870, 872
(11th Cir. 2008). A complaint may be dismissed for failure to state a claim if it
does not plead “enough facts to state a claim to relief that is plausible on its face.”
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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Factual allegations must be enough
to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
“A hostile work environment claim under Title VII is established upon
proof that the workplace is permeated with discriminatory intimidation, ridicule,
and insult, that is sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.” Miller v.
Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (quotation
omitted). To establish a hostile work environment claim, a plaintiff must show
that: (1) she belongs to a protected group; (2) she has been subject to unwelcome
harassment; (3) the harassment was based on a protected characteristic; (4) the
harassment was sufficiently severe or pervasive to alter the terms and conditions
of employment and create a discriminatorily abusive working environment; and
(5) the employer is responsible for such environment under a theory of either
vicarious or direct liability. Id.
The “severe or pervasive” requirement contains both an objective and a
subjective component. Id. at 1276. Thus, the harassing “behavior must result in
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both an environment that a reasonable person would find hostile or abusive and an
environment that the victim subjectively perceives to be abusive.” Id. (quotations
and alterations omitted). In evaluating the harassment’s objective severity, factors
to consider include: “(1) the frequency of the conduct; (2) the severity of the
conduct; (3) whether the conduct is physically threatening or humiliating, or a
mere offensive utterance; and (4) whether the conduct unreasonably interferes
with the employee’s job performance.” Id.
Title VII is not a “general civility code” and does not make actionable
ordinary workplace tribulations. Cotton v. Cracker Barrel Old Country Store,
Inc., 434 F.3d 1227, 1234 (11th Cir. 2006). Thus, Title VII is not implicated
“where there is the ‘mere utterance of an epithet.’” Miller, 277 F.3d at 1276-77
(alteration omitted). We proceed with “common sense, and an appropriate
sensitivity to social context, to distinguish between general office vulgarity and
the conduct which a reasonable person in the plaintiff’s position would find
severely hostile or abusive.” Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d
798, 811 (11th Cir. 2010) (en banc) (quotations omitted). “The speaker’s meaning
may depend on various factors including context, inflection, tone of voice, local
custom, and historical usage.” Ash v. Tyson Foods, Inc., 546 U.S. 454, 456
(2006). In addition, “[p]ersonal animosity is not the equivalent” of the type of
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harassment prohibited by Title VII, and the plaintiff cannot turn a “personal feud”
into such a Title VII claim. McCollum v. Bolger, 794 F.2d 602, 610 (11th Cir.
1986).
The district court did not err in dismissing Alhallaq’s Title VII hostile work
environment claim based on religious harassment. First, Alhallaq has not
plausibly alleged that the harassment, namely, the remarks that she was “dirty”1
and for her “to go to Hell” and “burn in Hell,” and the playing of Christian gospel
music, was done on account of her Muslim religion. Second, Alhallaq has not
established the harassment was sufficiently severe or pervasive to alter the terms
and conditions of her employment. The offensive conduct, albeit rude and
insensitive, is not actionable under Title VII, as it amounted to mere offensive
utterances or general vulgarity that Title VII does not regulate. Moreover, Title
VII is not a “general civility code” and Alhallaq cannot make actionable ordinary
workplace tribulations by turning a “personal feud” between herself and a co-
worker into a Title VII religiously hostile work environment claim.
We liberally construe pro se pleadings. Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir.1
2006). However, the leniency afforded pro se litigants does not give the courts license to serve as
de facto counsel or permit them to rewrite an otherwise deficient pleading in order to sustain an
action. GJR Inv., Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998), overruled
on other grounds as recognized in Randall v. Scott, 610 F.3d 701, 709 (11th Cir. 2010).
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II.
Alhallaq asserts the district court erred in dismissing her civil conspiracy
claim. She asserts the defendants conspired to withhold information, to
manufacture evidence, and to deprive her of property in a state court proceeding,
in violation of her civil rights, forming the basis for a civil conspiracy.
In conspiracy cases, a defendant must be informed of the nature of the
alleged conspiracy and “[i]t is not enough to simply aver in the complaint that a
conspiracy existed.” Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984).
Thus, conclusory, vague, and general allegations of conspiracy may justify
dismissal of a complaint. Id.
To establish a conspiracy claim under 42 U.S.C. § 1985(2), a plaintiff must
show a conspiracy “to deter, by force, intimidation, or threat, any party or witness
in any court of the United States from attending such court, or from testifying to
any matter pending therein, freely, fully, and truthfully, or to injure such party or
witness in his person or property on account of his having so attended or
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testified.” 42 U.S.C. § 1985(2). In addition, the plaintiff must have suffered an2
actual injury. Morast v. Lance, 807 F.2d 926, 930 (11th Cir. 1987).
A plaintiff seeking to recover under § 1985(2) for obstruction of the course
of justice in the federal justice system must show a nexus between the alleged
conspiracy and a federal court proceeding. Bradt, 634 F.2d at 800-01; see also
McAndrew v. Lockheed Martin Corp., 206 F.3d 1031, 1035 n.2 (11th Cir. 2000)
(en banc) (noting § 1985(2)’s phrase “court of the United States” does not refer to
state courts); Morast, 807 F.2d at 930 (concluding that, because the Office of the
Comptroller of the Currency was an administrative agency, it was not a federal
court for purpose of § 1985(2)).
Alhallaq alleged to the district court that the defendants conspired against
her during proceedings before the Equal Employment Opportunity Commission
(EEOC), and now alleges that they conspired against her in relation to proceedings
before a Georgia state court. Based on either of these allegations, Alhallaq’s civil
conspiracy claim fails under 42 U.S.C. § 1985(2) because this section applies only
to federal court proceedings, not to administrative proceedings before the EEOC
The last two clauses of § 1985(2) refer to conspiracies designed to deny or interfere with2
equal protection rights in any State or Territory, and plaintiffs seeking to recover under those clauses
must show a racial or otherwise class-based discriminatory animus. Bradt v. Smith, 634 F.2d 796,
801 (5th Cir. Unit A Jan. 1981). The last two clauses of § 1985(2) are not applicable in this case.
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or to state court proceedings. Moreover, Alhallaq’s allegations are simply too
conclusory, vague, and general to prevent dismissal of her complaint.
III.
Alhallaq contends the district court erred in dismissing her negligent hiring
and retention claim. Under Georgia law, an “employer is bound to exercise
ordinary care in the selection of employees and not to retain them after knowledge
of incompetency.” O.C.G.A. § 34-7-20. “[L]iability for negligent hiring or
retention requires evidence that the employer knew or should have known of the
employee’s propensity to engage in the type of conduct that caused the plaintiff’s
injury.” Middlebrooks v. Hillcrest Foods, Inc., 256 F.3d 1241, 1247 (11th Cir.
2001). A negligent retention claim is properly dismissed when there is no
underlying tort upon which to base it. See Eckhardt v. Yerkes Reg’l Primate Ctr.,
561 S.E.2d 164, 166 (Ga. Ct. App. 2002); see also MARTA v. Mosley, 634 S.E.2d
466, 469 (Ga. Ct. App. 2006) (“A claim for negligent retention is necessarily
derivative and can only survive summary judgment to the extent that the
underlying substantive claims survive the same.”).
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The district court did not err in dismissing the negligent hiring and retention
claim because Alhallaq did not identify the underlying tort upon which to base the
negligence claim, which is necessarily derivative.3
IV.
Alhallaq asserts the district court erred in denying her leave to amend her
first amended complaint because her second amended complaint would not be
futile and there was no undue delay or dilatory motive on her part.
We review the denial of a motion to amend a complaint for an abuse of
discretion. Fla. Evergreen Foliage v. E.I. DuPont De Nemours & Co., 470 F.3d
1036, 1040 (11th Cir. 2006). However, we review the denial de novo when the
district court denies leave to amend based on futility because it concludes that an
amended complaint would necessarily fail as a matter of law. Id.
After a responsive pleading has been filed, subsequent amendments are
permissible only with the opposing party’s written consent or the court’s leave,
which the court “should freely give [] when justice so requires.” Fed. R. Civ. P.
15(a)(2). A district court should give a plaintiff an opportunity to amend her
To the extent Alhallaq asserts she should be allowed to amend her complaint in the district3
court to allege an intentional infliction of emotional distress claim, she did not raise this claim in the
district court and we cannot address it. See Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2009)
(“[A]bsent extraordinary circumstances, legal theories and arguments not raised squarely before the
district court cannot be broached for the first time on appeal.” ).
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complaint rather than dismiss it when a more carefully drafted complaint might
state a claim upon which relief could be granted. Friedlander v. Nims, 755 F.2d
810, 813 (11th Cir. 1985). A district court may deny such leave where there is
“substantial reason” for doing so, such as where (1) there has been undue delay,
bad faith, dilatory motive, or repeated failure to cure deficiencies by amendments
previously allowed; (2) allowing amendment would cause undue prejudice to the
opposing party; or (3) amendment would be futile. Burger King Corp. v. Weaver,
169 F.3d 1310, 1319 (11th Cir. 1999).
“[T]he denial of leave to amend is justified by futility when the complaint as
amended is still subject to dismissal.” See id. at 1320 (quotations omitted). In
other words, “[b]ecause justice does not require district courts to waste their time
on hopeless cases, leave may be denied if a proposed amendment fails to correct
the deficiencies in the original complaint or otherwise fails to state a claim.”
Mizzaro v. Home Depot, Inc., 544 F.3d 1230, 1255 (11th Cir. 2008).
The district court correctly denied Alhallaq leave to file a second amended
complaint because the proposed amendments would be futile. See Weaver, 169
F.3d at 1319. First, the proposed second amended complaint’s addition of the
words “hostile” and “religious” to the first amended complaint’s caption for the
Title VII claim—““work environment/harassment”—failed to correct the
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deficiencies in the first amended complaint, as Alhallaq added no new facts to
support this claim. In any event, the first amended complaint made clear that she
was alleging a hostile work environment claim based on religious harassment.
Second, the proposed amended complaint’s allegation that Alhallaq was
constructively discharged in retaliation for her opposition to religious harassment
is moot because the district court ruled in her favor on the Title VII retaliation
claim and she accepted the defendants’ settlement offer as to this claim.
Third, the proposed amended complaint’s new cause of action for
constructive discharge fails to plead a plausible claim, particularly given that the
proposed complaint does not indicate whether the claim is being brought pursuant
to state or federal law. To the extent that Alhallaq raised the constructive
discharge claim under Title VII, the claim would fail because Alhallaq would not
be able to prove that her working conditions were so “intolerable” that a
“reasonable person” in her position would have felt “compelled to resign.” See
Bryant v. James, 575 F.3d 1281, 1298 (11th Cir. 2009). Indeed, “[e]stablishing a
constructive discharge claim is a more onerous task than establishing a hostile
work environment claim,” and, as discussed above, her hostile work environment
claim was properly dismissed. Id. To the extent Alhallaq brought the claim
pursuant to Georgia state law, it likely would fail because Georgia does not permit
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an at-will employee to maintain an action against her employer for constructive
wrongful termination. See Jellico v. Effingham Cnty., 471 S.E.2d 36, 37-38 (Ga.
Ct. App. 1996). In any event, despite Rule 15(a)’s liberal amendment policy,
Alhallaq may not use the district court as a testing ground for various legal
theories. See Fla. Evergreen Foliage, 470 F.3d at 1042.
Additionally, the constructive discharge claim did not cure any deficiencies
of the first amended complaint’s malicious purpose or wanton behavior claim,
which Alhallaq already had asserted was “basically a constructive discharge
claim” in her response to the defendants’ motion to dismiss. In liberally
construing the malicious purpose or wanton behavior claim, the district court in
fact considered the constructive discharge theory even though Alhallaq had raised
it improperly. Nevertheless, the district court determined that such a theory failed.
Because Alhallaq has not challenged this determination on appeal, she has
abandoned any claim to the contrary. See Timson, 518 F.3d at 874 (stating “issues
not briefed on appeal by a pro se litigant are abandoned”).
Finally, the proposed amended complaint’s new claim for punitive damages,
per O.C.G.A. § 51-12-5.1, would be futile because it makes conclusory allegations
with no factual basis. Because punitive damages are derivative of substantive tort
claims, and thus can only be awarded as additional damages, and because Alhallaq
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has failed to allege a valid tort, let alone demonstrate that any of her claims are
viable and can survive the defendant’s motion to dismiss, her claim for punitive
damages would necessarily fail. See Lilliston v. Regions Bank, 288 Ga.App. 241,
246, 653 S.E.2d 306, 311 (Ga. Ct. App. 2007) (explaining dismissal of tort claims
necessarily causes dismissal of claim for punitive damages).
In sum, the district court did not err in denying Alhallaq’s motion for leave
to file a second amended complaint because the proposed amendments would be
futile. Indeed, Alhallaq’s proposed second amended complaint failed to overcome
her first amended complaint’s deficiencies and otherwise failed to state valid
claims.
AFFIRMED.
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