James Lester Williams, Jr. v. Polk County Board of County Commissioners

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10206
Non-Argument Calendar
____________________
JAMES LESTER WILLIAMS, JR.,
Plaintiff-Appellant,
versus
POLK COUNTY BOARD OF COUNTY COMMISSIONERS,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cv-02842-WFJ-SPF
____________________
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2 Opinion of the Court 23-10206
Before R OSENBAUM , BRANCH, and GRANT, Circuit Judges.
PER CURIAM:
In this employment discrimination case, the district court
granted the Polk County Board of County Commissioners’ motion
for summary judgment on James Lester Williams’s claims of race
discrimination and retaliation under Title VII and age
discrimination under the Age Discrimination in Employment Act
(“ADEA”). Williams then moved for reconsideration, pointing to
allegedly newly discovered evidence. The district court denied the
motion, finding that Williams had not exercised reasonable
diligence.
On appeal, Williams offers no argument for why summary
judgment was improper, and he fails to show that the district court
abused its discretion in denying his motion for reconsideration.
We therefore affirm.
I. Background
Williams was hired as a Veterans Services Officer in Polk
County’s Health and Human Services Division in 2016. Williams
is a black male and was around 40 years old at the time. In 2019,
Williams successfully applied for a promotion to Veterans
Supervisor.
Not long after Williams was promoted, Williams’s
subordinates began complaining about his managerial style to his
supervisor, Director of the County Health and Human Services
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23-10206 Opinion of the Court 3
Division Marcia Andresen. They described him as “authoritarian,
demeaning, and disrespectful.” Williams does not dispute that
these complaints “were in no way related to or based on his race or
age.”
Williams argued below, however, that these poor reviews
and institutional corrections were unfair. For example, according
to Williams, one employee refused to accept any direction from
Williams and would go over his head to discuss work matters with
Andresen. Another was chronically late and would not accept
coaching. Williams sought support from Andresen, but he claims
she took the employees’ side and refused to intervene. Over time,
Williams received a series of written evaluations in which he was
praised for good performance in some areas, but was criticized for
his performance as a manager and team builder.
Williams’s issues with his subordinates, and their
complaints, “escalated,” with employees “expressing desires to quit
their jobs because the supervision was so authoritarian and
demeaning.” Williams went to Andresen to tell her that he could
not be an effective supervisor if she undermined his authority with
subordinates and refused to support him.
Around this time, two of Williams’s subordinates allegedly
asked two black employees to help get Williams fired so that
Williams’s termination would not appear discriminatory.
After receiving the last of the critical evaluations, Williams
took the matter to the Employee Relations Manager. Williams was
told that his concerns were legitimate and that Andresen should
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4 Opinion of the Court 23-10206
not have been intervening as she was, but the Employee Relations
Manager “[did] not have any authority to tell [Andresen] what to
do,” and so he would have to ask the Director of Human Resources
to talk to Andresen. There is no indication in the record of whether
the Director of Human Resources did so.
Williams was fired on December 11, 2019, a little more than
a month after the last critical evaluation. Williams appealed the
termination, arguing that his subordinates “teamed up” against
him to get rid of him. Williams never claimed that his firing had
anything to do with race or age. The Appeals Council upheld the
termination.
Williams sued the County in December 2020. Williams
alleged that the County had discriminated against him because of
his race, and age, and in retaliation for protected activity under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a),
3(a), and the ADEA, 29 U.S.C. § 623(a)(1).1
During discovery, Williams acknowledged that he never
complained to human resources or risk management about age or
race discrimination. He explained that he believed that he was the
victim of age and race discrimination because the County hired
someone younger than he to replace him, and the refusal to
support him in his management style showed that “they allowed a
. . . [white] supervisor to enforce [County] policies to [blacks], but
1 Williams also alleged a hostile work environment claim, but the district court
dismissed that claim and Williams does not challenge the dismissal on appeal.
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23-10206 Opinion of the Court 5
when [blacks] enforced [County] policies to [whites], then there’s
a problem.”
In a thorough order, the district court granted the County’s
motion for summary judgment. As to Williams’s claim of racial
discrimination, the district court found no direct evidence of
discrimination, it rejected all of Williams’s proposed comparators,
and it concluded that even if Williams had shown a prima facie case
of race discrimination, Williams could not show that the reason the
County gave for his firing was pretextual. The district court
acknowledged that Williams had shown a prima facie case of age
discrimination, but it rejected his ADEA claim because he had no
evidence to show that age was the but-for cause of his termination,
rather than his poor subordinate management. Finally, as to the
retaliation claim, the district court found that even if Williams
believed he had been discriminated against, the record did not show
that he challenged any practice as discriminatory or showed a link
between such protected activity and his termination. The district
court therefore granted summary judgment. The court entered
judgment on November 21, 2022.
On December 19, 2022, Williams moved to alter or amend
the court’s judgment under Federal Rule of Civil Procedure 59 and
for relief from the judgment under Rule 60. See Fed. R. Civ. P.
59(e), 60(b).2 He asked the court to consider four new affidavits,
2 We note that Williams’s motion was filed 28 days after the entry of
judgment, which is timely under Rule 59(e). See Fed. R. Civ. P. 59(e) (allowing
a party to move to alter or amend a judgment “no later than 28 days after the
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6 Opinion of the Court 23-10206
arguing that the affidavits demonstrated there was “a plan to keep
[black employees] out of leadership.” In particular, one of the
affiants claimed to have overheard a conversation in which an
unidentified woman in professional attire, believed to be Andresen,
said that she was working on getting a black employee “out of
here” and ensuring that there would be “no more blacks in
leadership roles.”
The district court treated Williams’s motion as a motion for
reconsideration and denied it. The district court found (among
other things) that Williams had not shown he could not have
obtained and submitted the evidence before the summary
judgment ruling issued.
Williams, proceeding pro se, appealed.3
II. Discussion
A. Williams abandoned any argument that the district
court erred in granting summary judgment.
Though Williams includes a section in his brief stating that
the grant of summary judgment was error, he fails to offer any
argument to that end on appeal. Instead, he merely recites the
applicable law that governs summary judgment. While we
entry of the judgment”); Fed. R. Civ. P. 6(a)(1) (explaining that, “[w]hen the
period” under the rules “is stated in days” the count of days should “exclude
the day of the event that triggers the period.”)
3 We note that, although Williams is proceeding pro se on appeal, he had counsel
throughout the district court proceedings.
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23-10206 Opinion of the Court 7
liberally construe the filings of pro se parties, “issues not briefed on
appeal by a pro se litigant are deemed abandoned.” Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008). An appellant’s brief
must include an argument containing “appellant’s contentions and
the reasons for them, with citations to the authorities and parts of the
record on which the appellant relies[.]” Fed. R. App. P. 28(a)(8)(A)
(emphasis added). Indeed, to obtain reversal of a district court
judgment that, like this one, “is based on multiple, independent
grounds, an appellant must convince us that every stated ground
for the judgment against him is incorrect.” Sapuppo v. Allstate
Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). An appellant’s
failure to challenge even one of the grounds on which the district
court based its judgment deems the challenge abandoned on
appeal, “and it follows that the judgment is due to be affirmed.” Id.
Williams’s brief fails to present any basis for reversal of the
summary judgment decision. Williams’s merits discussion begins
on page 9 and ends on page 13 (the last three pages dealing with
the motion for reconsideration)—and although he cites the general
legal standards applicable to summary judgment motions, he
provides no explanation or discussion of how the district court
erred. Instead, the only substantive discussion in his brief focuses
on the district court’s denial of his motion for reconsideration and
its refusal to consider the newly submitted affidavits.4 Accordingly,
4 Williams’s reply brief suffers from the same infirmities. But of course, even
raising pertinent arguments for the first time in the reply brief would not be
sufficient to preserve them. Timson, 518 F.3d at 874 (“we do not address
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8 Opinion of the Court 23-10206
he has abandoned any challenge to the district court’s summary
judgment ruling.
B. The district court did not abuse its discretion in
denying Williams’s motion for reconsideration.
Williams’s only real argument on appeal is that the district
court abused its discretion in denying his motion for
reconsideration because it erred in finding that he could have
submitted four new affidavits earlier in the proceedings. He
maintains that he did not receive the affidavits until after the court
granted summary judgment, and that his counsel promptly
submitted them after that. We see no error.
Williams moved for relief under Rules 59(e) and 60(b)(2).
Rule 59(e) provides that “[a] motion to alter or amend a judgment
must be filed no later than 28 days after the entry of the judgment.”
“The only grounds for granting a Rule 59 motion are newly-
discovered evidence or manifest errors of law or fact.” Arthur v.
King, 500 F.3d 1335, 1343 (11th Cir. 2007) (alteration adopted)
(quotation omitted). Similarly, under Federal Rule of Civil
Procedure 60(b)(2), a party may move for relief from a final order
if there is “newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move for a
new trial under Rule 59(b).” Fed. R. Civ. P. 60(b)(2). This rule
requires the movant to show: (1) newly discovered evidence;
arguments raise for the first time in a . . . reply brief” even if the litigant is pro
se).
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23-10206 Opinion of the Court 9
(2) due diligence by the movant to discover the new evidence;
(3) that the evidence is “not . . . merely cumulative or impeaching”;
(4) that the evidence is material; and (5) that the evidence “would
probably produce a new result.” Toole v. Baxter Healthcare Corp.,
235 F.3d 1307, 1316 (11th Cir. 2000). We review the denial of a
motion under either rule only for abuse of discretion. Farris v.
United States, 333 F.3d 1211, 1216 (11th Cir. 2003) (Rule 60(b);
Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1285 (11th Cir.
2001) (Rule 59(e)).5
As we have said before, “[a] motion for reconsideration
cannot be used to . . . raise argument or present evidence that could
have been raised prior to the entry of judgment.” Cummings v. Dep’t
of Corr., 757 F.3d 1228, 1234 (11th Cir. 2014) (quotation omitted).
“Unexcused failure to produce the relevant evidence . . . can be
sufficient, without more, to warrant the denial” of such a motion.
See Taylor v. Texgas Corp., 831 F.2d 255, 259 (11th Cir. 1987)
(quoting Kentucky Fried Chicken Corp. v. Diversified Packaging Corp.,
549 F.2d 368, 391 (5th Cir. 1977)); see also Fisher v. Kadant, Inc., 589
F.3d 505, 513 (1st Cir. 2009) (explaining that a party seeking relief
5 Because orders on motions under both rules are reviewed for abuse of
discretion, and both require newly discovered evidence to be introduced only
on a showing of due diligence or timeliness, Toole v. Baxter Healthcare Corp.,
235 F.3d 1307, 1316 (11th Cir. 2000) (Rule 60(b)); see Michael Linet, Inc. v. Village
of Wellington, 408 F.3d 757, 763 (11th Cir. 2005) (Rule 59(e)), we do not parse
the difference here. See Finch v. City of Vernon, 845 F.2d 256, 258 (11th Cir.
1988) (explaining that courts have “recogniz[ed]” that Rules 59(e) and 60(b)
“appear to overlap somewhat”).
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10 Opinion of the Court 23-10206
based on newly discovered evidence must “offer a convincing
explanation as to why he could not have proffered the crucial
evidence at an earlier stage of the proceedings” (quotation
omitted)).
Williams’s argument on appeal shows only that he did not
receive the affidavits before judgment, not that he could not have,
had he exercised due diligence. Williams has therefore failed to
meet his burden, and the district court did not abuse its discretion
in denying Williams’s motion for reconsideration based on new—
but not diligently discovered—evidence. See Grange Mut. Cas. Co.
v. Slaughter, 958 F.3d 1050, 1059–60 (11th Cir. 2020) (concluding the
district court “properly rejected” an attempt “to introduce new
evidence” in a motion for reconsideration “that was available at the
summary judgment stage”).
III. Conclusion
In sum, we affirm the district court’s grant of summary
judgment and its denial of Williams’s motion for reconsideration.
AFFIRMED.
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