Nancy B. Miller v. Omotayo B. Alli, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12729
Non-Argument Calendar
____________________
NANCY B. MILLER,
Plaintiff-Appellant,
versus
OMOTAYO B. ALLI,
Executive Director of the Georgia Public Defender
Council, in official capacity,
MOFFETT FLOURNOY,
Chief Public Defender, Chattahoochee Judicial
Circuit, Columbus, Georgia, in official capacity,
CHATTAHOOCHEE CIRCUIT PUBLIC DEFENDER’S OFFICE,
GEORGIA PUBLIC DEFENDER STANDARDS COUNCIL,
as it governs, manages, and controls the
Chattahoochee Circuit Public Defender’s Office,
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2 Opinion of the Court 22-12729
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 4:21-cv-00129-CDL
____________________
Before G RANT, A BUDU , and A NDERSON , Circuit Judges.
PER CURIAM:
Nancy Miller appeals pro se the district court’s dismissal of
her second amended complaint against Moffett Flournoy, the
Circuit Public Defender for the Chattahoochee Circuit Public
Defender’s Office, and others. 1 Miller’s Title VII and § 1983
claims are time-barred, and her complaint failed to state a plausible
claim of retaliation under § 1981. We therefore affirm the district
court’s dismissal.
I.
Nancy Miller is an African-American attorney employed by
the Chattahoochee Circuit Public Defender’s Office since 2006.
1 Although Miller proceeds pro se on appeal, she is a licensed attorney, so
liberal construction of her filings is not appropriate. See Hornsby-Culpepper v.
Ware, 906 F.3d 1302, 1306 n.1 (11th Cir. 2018).
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22-12729 Opinion of the Court 3
According to her complaint, in March of 2017, Miller, concerned
that several recent hires had all been white, asked Steve Craft, the
Chief Assistant Public Defender who was involved in the hiring of
new attorneys, if the office had received any applications from
attorneys of color. Craft responded that the office did not want
to lower its standards. Miller alleged that Craft also made other
comments, but she did not state what those comments were.
Miller believed this comment to be unlawful and reported it to
Moffett Flournoy, head of the public defender’s office. Flournoy
responded that he did not consider race and only wanted to hire
other attorneys who could perform as well as Miller.
Shortly after this exchange, Miller began a week-long
murder trial. During the trial, Miller received notice that the
Georgia Court of Appeals planned to dismiss one of her client’s
pending cases because she had failed to sign her name to the appeal.
After her trial concluded, she found that Flournoy had issued her a
reprimand over this mistake. Miller objected, but the reprimand
was not withdrawn.
Miller believed that the reprimand was retaliation in
response to her reporting Craft’s comment to Flournoy.
Following the reprimand, Miller alleges that Flournoy and Craft
excluded her from an office-wide raise, began more closely
scrutinizing her work for deficiencies, and changed her schedule to
be more rigorous than before. All events were alleged to have
occurred within a “few months” of March of 2017.
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4 Opinion of the Court 22-12729
Based on these events, Miller filed a charge with the Equal
Employment Opportunity Commission in March of 2019.2 The
EEOC issued her a Notice of Right to Sue in May of 2021. She
then filed suit against Flournoy and a handful of other defendants
in district court, alleging race discrimination, retaliation, and a
racially hostile work environment under Title VII; race
discrimination under the Equal Protection Clause, asserted
through 42 U.S.C. § 1983; and retaliation under 42 U.S.C. § 1981.
The district court dismissed her complaint, reasoning that her Title
VII and § 1983 claims were time-barred, that she was not entitled
to equitable tolling of the deadlines, that she had failed to state a
claim of § 1981 retaliation, and that Flournoy was entitled to
qualified immunity. This appeal follows.
II.
We review a district court’s denial of equitable tolling de
novo and its factual determinations for clear error. Cabello v.
Fernández-Larios, 402 F.3d 1148, 1153 (11th Cir. 2005).
We review the dismissal of a complaint for failure to state a
claim de novo. Henley v. Payne, 945 F.3d 1320, 1326 (11th Cir.
2019). We accept the allegations in the complaint as true and
construe them in the light most favorable to the plaintiff. Id. To
2 Although the operative complaint alleges that Miller filed her charge in
March of 2019, the actual EEOC charge attached as an exhibit by defendants
to their motion to dismiss indicates that it was filed on September 16, 2019.
This discrepancy does not matter for the outcome; either way, Miller’s charge
was filed out-of-time.
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22-12729 Opinion of the Court 5
survive a motion to dismiss, a plaintiff must allege facts that are
“plausible on their face,” and “raise a right to relief above the
speculative level.” Dorman v. Aronofsky, 36 F.4th 1306, 1312 (11th
Cir. 2022) (alterations adopted and quotation omitted). We must
be able to draw from the plaintiff’s facts “the reasonable inference
that the defendants were liable for the misconduct alleged.” Id.
(alterations adopted and quotation omitted).
III.
Before bringing suit under Title VII an aggrieved employee
must first file a charge of discrimination with the EEOC within 180
days of the alleged unlawful employment practice. 42 U.S.C.
§ 2000e-5(e). Compliance with this deadline is not a jurisdictional
prerequisite, and the deadline is subject to equitable tolling.
Sturniolo v. Sheaffer, Eaton, Inc., 15 F.3d 1023, 1025 (11th Cir. 1994).
But equitable tolling “is an extraordinary remedy.” Bost v. Fed.
Express Corp., 372 F.3d 1233, 1242 (11th Cir. 2004) (quotation
omitted). The party seeking tolling must prove “(1) that he has
been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely filing.”
Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 971 (11th Cir.
2016) (en banc) (quotation omitted).
In Georgia, the statute of limitations for a § 1983 claim is
two years. Lovett v. Ray, 327 F.3d 1181, 1182 (11th Cir. 2003). We
look to state law for applicable tolling rules. Wallace v. Kato, 549
U.S. 384, 394 (2007). In Georgia, the limitations period may be
tolled where the defendant committed a fraud “by which the
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6 Opinion of the Court 22-12729
plaintiff has been debarred or deterred from bringing an action,” in
which case the limitation period runs “only from the time of the
plaintiff’s discovery of the fraud.” O.C.G.A. § 9-3-96. The
plaintiff must show that he “exercised reasonable diligence to
discover his cause of action despite his failure to do so within the
statute of limitation.” Daniel v. Amicalola Elec. Membership Corp.,
289 Ga. 437, 445 (2011).
Miller’s complaint alleges that all of the events supporting
her Title VII and § 1983 claims occurred within a “few months” of
March of 2017. Therefore, under the most generous
interpretation of her complaint, the period to file an EEOC charge
for her Title VII claim ended sometime in 2018. And the
limitations period for her to sue on her § 1983 claims expired in
2019. Miller filed her EEOC charge, at the earliest, in March of
2019 and filed suit in July of 2021. Both her Title VII and § 1983
claims are thus untimely.
Miller argues that she is entitled to equitable tolling because
the defendants fraudulently concealed their discriminatory acts.
Specifically, she contends that when she asked Craft about the 2017
raises, he led her to believe that no one else had been given a raise
either. But her own complaint indicates that she learned of the
raises through a “Public Records Salary Information Site,” not via
speaking with Craft. She does not explain why she could not have
discovered this discrepancy from this same public website earlier.
And she does not provide any reasons at all why equitable tolling is
warranted for the other adverse actions taken against her—the
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22-12729 Opinion of the Court 7
retaliatory reprimand, increased scrutiny, and change in her
caseload—which she would have been aware of the instant they
occurred. Because Miller’s delay is inconsistent with the exercise
of reasonable diligence in the pursuit of her claims, she has not
stated a plausible claim to equitable tolling.
IV.
To state a claim of retaliation under § 1981, a plaintiff must
show that (1) she “engaged in a statutorily protected activity;” (2)
she “suffered an adverse employment action;” and (3) she
“established a causal link between the protected activity and the
adverse action.” Bryant v. Jones, 575 F.3d 1281, 1307–08 (11th Cir.
2009). Unlike Title VII claims where mixed-motivation causation
sometimes applies, a retaliation claim under § 1981 requires proof
that race was a but-for cause of the adverse action. Ossmann v.
Meredith Corp., 82 F.4th 1007, 1014 (11th Cir. 2023). In other
words, to survive the motion to dismiss, Miller must plead facts
supporting a reasonable inference that but for her race she would
not have been disciplined. See id.
Miller’s complaint does not meet this standard. She
concedes that the stated ground for her reprimand was her
endangering one of her client’s cases by failing to sign an appeal,
an offense which Flournoy told her was grounds for termination.
Miller alleges no facts which tend to dispel the natural conclusion
that the serious error she committed at her job was the but-for
cause of her being subjected to discipline and increased scrutiny,
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8 Opinion of the Court 22-12729
whether or not she had earlier reported Craft’s allegedly
discriminatory comment.
Instead, she presents only conclusory allegations that
“[s]imilarly situated white employees were not treated the same”
and that “a lesser experienced white attorney” was appointed as her
supervisor. These are threadbare assertions. She does not
explain who these white employees were, how they were similarly
situated to her, or whether they had committed similarly serious
offenses, nor does she explain how the promotion of a white
colleague is relevant to her retaliation claim. Without more, the
factual allegations in Miller’s complaint do not support a retaliation
claim against Flournoy, as required to defeat the Rule 12(b)(6)
motion to dismiss.3
* * *
The district court correctly found that Miller was not
entitled to equitable tolling of the statutes of limitations on her
Title VII and § 1983 claims and that Miller had failed to state a claim
of retaliation in violation of § 1981. We therefore AFFIRM the
district court’s grant of the defendants’ motion to dismiss.
3 Miller has abandoned her § 1981 claims against all other defendants.
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