Robert Mitchell v. City of Miami Beach

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12139
Non-Argument Calendar
____________________
ROBERT MITCHELL,
Plaintiff-Appellant,
versus
CITY OF MIAMI BEACH,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cv-22835-RNS
____________________
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2 Opinion of the Court 22-12139
Before J ORDAN , BRANCH, and A BUDU , Circuit Judges.
PER CURIAM:
Robert Mitchell, represented by counsel, appeals the dismis-
sal of his employment discrimination action against his employer,
the City of Miami Beach (“the City”), under the Age Discrimina-
tion in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 623(a)(1);
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§§ 2000e-2(a); and the Florida Civil Rights Act (“FCRA”), Fla. Stat.
§ 760.10(1). After reviewing the record and parties’ arguments, we
affirm.
I. FACTUAL BACKGROUND & PROCEDURAL
HISTORY
Mitchell, a 65-year-old white, non-Hispanic male whose na-
tion of origin is the United States sued his employer, the City of
Miami Beach (“the City”), in August 2021. Thereafter, the district
court entered a scheduling order requiring any motion to amend
the pleadings be filed by January 25, 2022.
Following certain events not relevant to the present appeal,
Mitchell filed the operative amended complaint in December 2021,
in which he set forth eight counts of discrimination against the
City: age-based claims under the ADEA and the FCRA; race-based
claims under Title VII and the FCRA; national-origin-based claims
under Title VII and the FCRA; and sex-based claims under Title VII
and the FCRA. Mitchell alleged that he had administratively ex-
hausted these claims, explaining that he filed charges of
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22-12139 Opinion of the Court 3
discrimination with the Equal Employment Opportunity Commis-
sion (“EEOC”) and the Florida Commission on Human Relations
(“FCHR”) on November 27, 2019, and an amended charge on May
8, 2020, alleging race, sex, age, and national origin discrimination.
According to the amended complaint, the City allegedly dis-
criminated against Mitchell between January 20, 2018, and Decem-
ber 20, 2019, when he applied for, and was denied, eighteen posi-
tions which were given to substantially younger, non-white appli-
cants. Specifically, he applied to one position as a background in-
vestigator, one as an arson investigator, eight as a school resource
officer, and eight as a hostage negotiation team member.
On January 20, 2022, five days before the deadline for
amending pleadings, the City moved to dismiss Mitchell’s amended
complaint. The City first argued that Mitchell’s claims related to
the denials of positions other than the school resource officer posi-
tions filled in 2019 were time-barred, as the denials occurred more
than a year before Mitchell filed his first charge with the EEOC in
November 2019. The City next contended that Mitchell failed to
administratively exhaust his national origin and sex discrimination
claims, and his claims of age, race, sex, and national origin discrim-
ination related to the background investigator and school resource
officer position denials, because he failed to adequately assert those
claims in his EEOC charges. The City provided copies of Mitchell’s
EEOC charges to demonstrate these alleged deficiencies. Finally,
the City argued that Mitchell failed to allege sufficient facts to sup-
port a prima facie case for age, race, sex, or national origin
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4 Opinion of the Court 22-12139
discrimination, including the argument that Mitchell failed to suf-
ficiently allege that his identified comparators were similarly situ-
ated.
Instead of seeking consent from the City or for the court’s
leave to file a second amended complaint after receiving the City’s
motion to dismiss, Mitchell filed a response opposing the motion
on February 7, 2022. In his response, however, Mitchell made no
substantive arguments. Instead, he set forth legal principles for em-
ployment cases, such as how to establish a prima facie case of dis-
parate treatment, and some case law discussing when a transfer
could be considered adverse. Then, in a single sentence section en-
titled “Applying the Law to the Facts in the Case at Bar” Mitchell
stated:
Applying Iqbal and Twombly to the well-pleaded facts
in Mr. Mitchell’s amended complaint, the Court
should determine that Mr. Mitchell has sufficiently al-
leged enough specifics to plead a prima facie case that
he suffered age, race/national origin and sex
discr[i]mination in being repeatedly denied the jobs
for which he applied, and that he sufficiently ex-
hausted his administrative remedies before filing suit.
Mitchell provided no other argument or discussion concerning the
administrative exhaustion arguments the City raised in its motion
to dismiss, nor did he address his alleged failure in sufficiently iden-
tifying similarly situated comparators. Mitchell also made no indi-
cations that he intended to seek leave to file a second amended
complaint.
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22-12139 Opinion of the Court 5
In reply, the City argued that Mitchell failed to address its
arguments concerning the exhaustion of administrative remedies
or the arguments concerning the insufficiency of his allegations,
with the possible exception of its material adversity arguments, and
reiterated that dismissal was proper on those grounds. The City
also argued that, to the extent Mitchell’s citation to legal cases
could be interpreted as directly addressing the City’s arguments,
those cases did not support Mitchell’s position and, thus, his claims
still failed.
Ultimately, the district court granted the City’s motion to
dismiss. First, the district court determined that Mitchell failed to
challenge the City’s arguments related to his failure to exhaust his
administrative remedies. The court then found that all the job ap-
plication denials Mitchell challenged were time-barred,1 with the
exception of the two school-resource officer positions from 2019.
As to Mitchell’s claims of discrimination based on his sex and na-
tional origin related to the school resource officer positions, the dis-
trict court found that Mitchell also failed to administratively ex-
haust those claims because his EEOC charges did not allege suffi-
cient facts to support a charge of discrimination. Thus, the only
substantive claims Mitchell properly exhausted were his age and
race discrimination claims based on the two 2019 school resource
officer positions.
1 On appeal, Mitchell does not contest the district court’s dismissal of these
claims based on the timeliness analysis. As such, this issue is not before the
Court.
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6 Opinion of the Court 22-12139
Notwithstanding Mitchell’s failure to exhaust his administra-
tive remedies, the district court conducted a substantive review of
each of Mitchell’s claims and ruled that he failed to state a claim
upon which relief could be granted. Specifically, the court rea-
soned that Mitchell failed to allege facts sufficient to satisfy the
McDonnel Douglas2 or “convincing mosaic” frameworks. The court
noted that Mitchell “himself appear[ed] to concede” his amended
complaint insufficiently alleged his discrimination claims by “fail-
ing to adduce any real opposition to the vast majority of the City’s
arguments.”
As such, the district court dismissed Mitchell’s case without
prejudice as to those claims for which he failed to exhaust his ad-
ministrative remedies, and with prejudice as to the remaining
claims. The district court dismissed the entire case without leave
to amend, noting that he had not requested leave to amend, nor
had he indicated an inclination to do so. Now, Mitchell appeals.
II. ANALYSIS
A. Mitchell Has Abandoned Each of the Arguments He
Now Raises on Appeal.
On appeal, Mitchell now, for the first time, argues that he
exhausted his administrative remedies with respect to his national
origin discrimination claims. Also, for the first time, he contends
that he sufficiently alleged his claims of age, race, and national
2 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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22-12139 Opinion of the Court 7
origin discrimination, specifically challenging the district court’s
similarly situated comparator finding.
We normally review the dismissal of a complaint for failure
to state a claim de novo, accepting the factual allegations in the com-
plaint as true and construing them in the light most favorable to
the plaintiffs. Tolar v. Bradley Arant Boult Commings, LLP, 997 F.3d
1280, 1299 (11th Cir. 2021). However, an issue that was not raised
in the district court but is raised for the first time on appeal is con-
sidered forfeited, and we will not address it absent extraordinary
circumstances. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,
1331-32 (11th Cir. 2004). Cursory, conclusory statements do not
adequately preserve a more developed argument that could have
been presented to the district court but was not. See Ruckh v. Salus
Rehab., LLC, 963 F.3d 1089, 1111 (11th Cir. 2020) (holding that an
unadorned statement in a new-trial motion asserting that a dam-
ages award was “excessive and against the weight of the evidence
in light of all the deficiencies in Relator’s proof discussed above”
amounted to mere “superficial assertions” which “were insufficient
to permit reasoned consideration by the district court”). Similarly,
issues not plainly and prominently raised in a party’s initial brief are
deemed abandoned and will not be addressed absent extraordinary
circumstances. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678,
680-83 (11th Cir. 2014).
Here, Mitchell failed to preserve his challenges to the district
court’s dismissal of his claims because he failed to raise them before
the district court in the first instance. In his response to the City’s
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8 Opinion of the Court 22-12139
motion to dismiss, Mitchell provided a single conclusory sentence
of analysis in which he asserted that he had alleged sufficient facts
to plead a prima facie case of discrimination and that he had suffi-
ciently exhausted his administrative remedies. This single, superfi-
cial and conclusory assertion, without further analysis or support,
was insufficient to preserve either of his arguments on appeal.
Ruckh, LLC, 963 F.3d at 1111. Similarly, neither the inclusion of
facts relevant to his current arguments within the fact section of his
response, nor the inclusion of generally applicable employment
law within his “Governing Legal Principles” section clearly pre-
sented his current arguments to the district court. Id. Accordingly,
because he failed to preserve his arguments before the district
court, and as he fails to argue on appeal that extraordinary circum-
stances warrant our review, he has abandoned the arguments, and
we affirm the district court’s dismissal of his amended complaint.
B. The District Court Did Not Abuse Its Discretion in Dis-
missing Mitchell’s Amended Complaint Without Leave
to Amend.
On appeal, Mitchell makes another argument for the first
time—that the district court should have granted him leave to
amend his already amended complaint before dismissing with prej-
udice.
When appropriate, we will review the denial of leave to
amend a complaint for abuse of discretion. Covenant Christian Min-
istries, Inc. v. City of Marietta, 654 F.3d 1231, 1239 (11th Cir. 2011).
District courts have the discretion to choose between a range of
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22-12139 Opinion of the Court 9
choices, and we will not disturb the court’s decision so long as it
falls within that range of choices and is not influenced by a mistake
of law. Zocaras v. Castro, 465 F.3d 479, 483 (11th Cir. 2006).
Federal Rule of Civil Procedure 15(a) states that “[a] party
may amend its pleading once as a matter of course within . . . 21
days after service of a” motion to dismiss under Rule 12(b). Fed. R.
Civ. P. 15(a)(1)(B). Thereafter, unless otherwise specified, a party
may amend its pleading “only with the opposing party’s written
consent or the court’s leave,” but “[t]he court should freely give
leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). While
district courts should sua sponte provide a pro se plaintiff at least one
chance to amend his complaint before the district court dismisses
his action with prejudice, absent futility, Woldeab v. Dekalb Cnty. Bd.
of Educ., 885 F.3d 1289, 1292 (11th Cir. 2018), such rule does not
apply where, as here, a litigant is counseled and counsel does not
file a motion to amend or otherwise request leave to amend, Wag-
ner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 542 (11th Cir.
2002) (en banc).
Here, Mitchell’s argument fails for multiple reasons. First,
because he never raised it below, he generally cannot do so for the
first time on appeal. Access Now, 385 F.3d at 1331-32. Second, even
considering his argument, the district court did not abuse its discre-
tion in declining to sua sponte grant Mitchell, who was counseled,
leave to file a second amended complaint. First, Mitchell had al-
ready amended his complaint, and the district court gave Mitchell
an opportunity to make further amendments by January 25, 2022,
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10 Opinion of the Court 22-12139
in its scheduling order. Second, after being served with the City’s
motion to dismiss, Mitchell had the opportunity to obtain the
City’s consent or the court’s leave to file another amended com-
plaint. Fed. R. Civ. P. 15(a)(2). However, he made no efforts to do
so. Finally, he made no indication to the court or otherwise that
he wanted to further amend the complaint, and the district court
had no obligation to sua sponte grant him another opportunity to
amend. Wagner, 314 F.3d at 542. Accordingly, the district court did
not abuse its discretion in dismissing Mitchell’s case without leave
to amend.
III. CONCLUSION
For the reasons set forth herein, we AFFIRM the district
court’s dismissal of Mitchell’s amended complaint.
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