Taqwa Siddeeq v. Dekalb County, GA

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-10155
Non-Argument Calendar
____________________
TAQWA SIDDEEQ,
Plaintiff-Appellant,
versus
DEKALB COUNTY, GA,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:17-cv-01327-SCJ
____________________
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2 Opinion of the Court 20-10155
Before J ILL PRYOR , BRANCH, and L UCK , Circuit Judges.
PER CURIAM:
Taqwa Siddeeq, proceeding
pro se, appeals the district
court’s grant of summary judgment in favor of his former
employer DeKalb County, Georgia (“the County”) on his religious
discrimination and retaliation claims. As an initial matter, Siddeeq
argues that the district court abused its discretion by denying his
belated motion to resubmit his response in opposition to the
County’s motion for summary judgment, which he filed after the
County filed its reply to Siddeeq’s initial response in opposition to
the motion for summary judgment. Further, Siddeeq contends
that the district court erred in granting summary judgment to the
County on his religious discrimination claim after erroneously
concluding that he failed to identify a valid comparator group, and
therefore did not plead a
prima facie case of discrimination. With
respect to his retaliation claim, Siddeeq argues that the district
court erred in determining that the temporal proximity between
his protected activity and the materially adverse employment
actions was too attenuated to establish causation. 1
1 Siddeeq raises a bevy of other arguments on appeal that we do not reach. For
instance, Siddeeq contends that the County’s counsel advised him that he did
not need to file certain discovery documents, and that his reliance on that
advice prejudiced his defense. However, because he did not raise this
argument below, instead introducing it for the first time in his “statement of
the issues” and then failing to expound his argument beyond a conclusory
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20-10155 Opinion of the Court 3
After review, we affirm.
I. Background
In 2003, Siddeeq, a practicing Muslim, founded
Neighborhood Works Incorporated (“NWI”), a nonprofit seeking
to provide affordable housing to low-income families in Siddeeq’s
community. Siddeeq served as NWI’s executive director from its
founding until September 2010. In 2004, NWI became a
Community Housing Development Organization (“CHDO”) with
the State of Georgia, which means that it began receiving
government funding for “home-assisted activities.” Sometime in
2009, NWI sought to obtain funding as a CHDO from the County
for a housing project.
Soon after, Siddeeq applied for a position with the County
in the DeKalb Community Development Department (the
“Department”). During the interview, Melvia Richards, the
Department’s Housing Manager, told Siddeeq that he “would have
to disassociate [him]self completely” from NWI as a condition of
statement, he has abandoned it.
See Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 680 (11th Cir. 2014);
Access Now, Inc. v. Sw. Airlines Co., 385
F.3d 1324, 1331–32 (11th Cir. 2004). Siddeeq has also abandoned any First
Amendment “failure to accommodate” and hostile work environment claims
by failing to assert these claims in his amended complaint or brief them in
response to the County’s motion for summary judgment.
See id. Finally, we
note that Siddeeq first raised his freedom-of-association claim in his objection
to the magistrate judge’s recommendation that the district court grant
summary judgment in favor of the County, thereby waiving it.
See Williams
v. McNeil, 557 F.3d 1287, 1290–91 (11th Cir. 2009).
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4 Opinion of the Court 20-10155
employment, prompting Siddeeq to withdraw from consideration
for the position.
Christine Morris, the Director of the Department, then
contacted Siddeeq and assured him that not only would he not
need to dissociate from NWI, but that his job would require
providing technical assistance to NWI and other DeKalb CHDOs.
Siddeeq reapplied and, on September 27, 2010, was hired as a
Housing Specialist in the Department. Because the Department
paid Siddeeq’s salary using Department of Housing and Urban
Development (“HUD”) grant funds, he was subject to federal and
local rules regarding conflicts of interest.2 That same month,
2 In relevant part, HUD’s conflict of interest rules provide that:
No persons [who are . . . employee[s], agent[s], consultant[s],
officer[s], or elected official[s] or appointed official[s] of the
participating jurisdiction, State recipient, or subrecipient which are
receiving HOME funds] who exercise or have exercised any functions
or responsibilities with respect to activities assisted by HOME funds
or who are in a position to participate in a decision-making process or
gain inside information with regard to these activities may obtain a
financial interest or financial benefit from a HOME-assisted activity,
or have a financial interest in any contract, subcontract, or agreement
with respect to the HOME-assisted activity, or the proceeds from such
activity, either for themselves or those with whom they have business
or immediate family ties, during their tenure or for one year
thereafter. Immediate family ties include (whether by blood, marriage
or adoption) the spouse, parent (including a stepparent), child
(including a stepchild), brother, sister (including a stepbrother or
stepsister), grandparent, grandchild, and in-laws of a covered person.
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20-10155 Opinion of the Court 5
Siddeeq resigned as the executive director of NWI in order to avoid
having any “financial interest” in its dealings with Department.
See
24 C.F.R. § 92.356(b). Siddeeq claims that, at the time of his hiring,
he was the only Muslim in the entire Department, and that his
supervisors were aware of his faith.
In 2011, the County audited NWI and discovered that
Siddeeq was a creditor of the organization and continued to have a
financial interest in it—indeed, NWI owed Siddeeq between
$60,000–100,000, which Siddeeq had not disclosed when the
County hired him.
In September 2012, Siddeeq’s supervisor Christine Morris
instructed Siddeeq to cease all “business transactions or
communications with” NWI within 30 days to avoid an apparent
conflict of interest, and later reissued that instruction in November.
Siddeeq contends that Morris also prohibited him from
volunteering with NWI. Undeterred, the next month Siddeeq
24 C.F.R. § 92.356(b)–(c). Likewise, in relevant part, the DeKalb County
personnel code prohibits employees from:
(1) Engag[ing] in any business or transaction or hav[ing] a financial
interest or other personal interest, direct or indirect, which is
incompatible with the proper discharge of official duties or which
would tend to impair independence of judgment or action in the
performance of official duties . . . (4) Participat[ing] in the
negotiation or the making of any contract with any business or
entity in which the employee has a financial interest.
DeKalb Cty. Code § 20-20(1)-(4).
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6 Opinion of the Court 20-10155
inquired with NWI about an invoice payment, prompting Morris
to suspend, and ultimately terminate, him in late December 2012
and January 2013, respectively. Siddeeq successfully appealed his
termination, and, in July 2013, he was reinstated, but was placed in
a different position as a Senior Center Manager at the DeKalb
Atlanta Senior Center—although the Department continued to
pay his salary using HUD funds. On July 24, 2013, the day before
starting his new position, Siddeeq filed a discrimination charge
with the Equal Employment Opportunity Commission (“EEOC”),
complaining of religious discrimination, prior suspensions he
experienced, his first termination, and his reassignment to the
Senior Center upon his reinstatement.
In September 2013, Morris forwarded to all County
employees an invitation to attend a prospective homeowner
information session at Habitat for Humanity, a CHDO receiving
HUD funds.3 Approximately seven months later, on April 11, 2014,
Siddeeq e-mailed Morris, requesting that she lift what Siddeeq
perceived as a prohibition against his volunteering from CHDOs
receiving funding from the County. She denied his request in
writing, noting that Siddeeq was still an active employee with the
Department and that he retained a financial interest in NWI—the
$60,000-$100,000 that the organization owed him—and therefore
he still had a conflict of interest. Morris explicitly warned Siddeeq
3 According to Siddeeq, Habitat for Humanity is a Christian organization.
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20-10155 Opinion of the Court 7
that “[v]iolations of this directive will lead to disciplinary actions up
to and including termination of employment.”
Nevertheless, on August 19, 2014, Siddeeq, acting as a
representative of NWI, attended a workshop hosted by an
independent agency funded by HUD. Upon learning of Siddeeq’s
actions, Ms. Morris sent him a letter indicating the Department’s
intent to terminate him for insubordination and failure to comply
with directions to avoid a conflict of interest. Siddeeq
unsuccessfully appealed his termination. He then filed a second
complaint with the EEOC, alleging religious discrimination and
retaliation. The EEOC, finding that Siddeeq had no cause to assert
his claims, dismissed the complaint and issued Siddeeq a right to
sue letter on January 19, 2017.
Siddeeq then filed the underlying civil rights complaint
against the County, alleging that the County: (1) discriminated
against him on the basis of his Muslim faith; (2) created and
subjected him to a hostile work environment on the basis of his
religious exercise and for filing an EEOC complaint; and (3) fired
him in retaliation for his filing an EEOC complaint. After
discovery, the County moved for summary judgment.
The district court clerk sent Siddeeq a notice, informing him
of the County’s motion for summary judgment and the deadline
for his response, and advising him that he must designate, by sworn
affidavit or other materials, specific facts showing genuine issues
for trial. Additionally, the magistrate judge issued an order
explaining to Siddeeq what his response should include, and that
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8 Opinion of the Court 20-10155
the failure to respond to each of the numbered facts in the County’s
statement of undisputed material facts would result in those facts
being accepted pursuant to the federal and local rules.
See
Fed. R. Civ. P. 56; N.D. Ga. Civ. R. 56.1.
On June 14, Siddeeq filed a motion for additional time to
respond to the County’s motion for summary judgment because
his father was seriously ill, and the magistrate judge granted him a
five-week extension until July 31, cautioning Siddeeq that he would
not receive any further extensions. On July 29, Siddeeq filed for
another extension, citing the recent death of his father, and the
magistrate judge granted the extension until August 21. The
magistrate judge stated that no further extensions would be
granted.
After Siddeeq finally submitted his response in opposition to
the motion for summary judgment on August 21, the County
argued that Siddeeq failed to respond to its statement of undisputed
material facts. Siddeeq then filed a motion seeking permission to
resubmit his response to the County’s motion for summary
judgment.
Next, the magistrate judge issued a report and
recommendation (“R&R”) recommending that the district court
grant the County’s motion for summary judgment. Because
Siddeeq failed to respond to the County’s statement of undisputed
material facts in accordance with the federal and local rules, the
magistrate judge deemed admitted most of the County’s statement
of undisputed material facts. Relatedly, the magistrate judge
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20-10155 Opinion of the Court 9
recommended denying Siddeeq’s request to resubmit his response,
explaining that Siddeeq did not have good cause to resubmit his
response because he had previously been warned about the
requirements and, due to the two extensions already granted to
him, received a total of 82 days to prepare a response.
With regard to Siddeeq’s religious discrimination claim, the
magistrate judge found that Siddeeq failed to point to any direct
evidence of discrimination, and that the record evidence did not
contain any. The magistrate judge also concluded that none of the
purported comparators Siddeeq identified were similarly situated.
Turning to Siddeeq’s retaliation claim, the magistrate judge
found that Siddeeq’s filing of his 2013 EEOC complaint constituted
protected activity, and that he faced adverse employment actions
in April 2014, when he was allegedly prohibited from volunteering
with CHDOs, and again in September 2014, when he was
terminated. However, the magistrate judge concluded that
Siddeeq failed to present sufficient evidence of a causal connection
between his filing of the EEOC complaint and those adverse events
due to the temporal gap between them. Finally, the magistrate
judge recommended the dismissal of Siddeeq’s claim of a hostile
work environment.
Siddeeq raised five objections to the magistrate judge’s
R&R, including: (1) that the magistrate judge considered key
evidence of retaliation out of context and failed to consider the one-
year waiting period under 24 C.F.R. § 92.356(b); (2) that the
magistrate judge overlooked the
per se retaliatory nature of the
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10 Opinion of the Court 20-10155
restrictions imposed on him by the County; and (3) that the
magistrate judge’s comment that no further extensions would be
granted denied him the option to request an extension of time.
The district court adopted the magistrate judge’s report and
recommendation, overruled Siddeeq’s objections, and granted the
County’s motion for summary judgment. Siddeeq timely
appealed.
II. Analysis
A. Siddeeq’s motion to resubmit his response to the County’s
motion for summary judgment
On appeal, Siddeeq argues that the district court erred in
denying his motion to resubmit his response in opposition to the
County’s motion for summary judgment. He maintains that his
response in opposition to the motion for summary judgment was
subpar and failed to comply with all of the rules because he was
grieving the death of his father, which he contends constituted
good cause for the district court to grant his subsequent motion to
resubmit his response.
We review the district court’s decision to deny Siddeeq’s
request to resubmit his response for an abuse of discretion.
Young
v. City of Palm Bay, 358 F.3d 859, 863 (11th Cir. 2004). Here, the
district court did not abuse its discretion in denying Siddeeq’s
request to resubmit his response to the County’s motion for
summary judgment because the magistrate judge twice granted
Siddeeq an extension, giving him a total of 82 days to respond to
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20-10155 Opinion of the Court 11
the motion for summary judgment.4 Additionally, the magistrate
judge had issued an order explaining to Siddeeq the requirements
of Federal Rule of Civil Procedure 56 and Local Rule 56.1,
including that if he failed to respond to the County’s statement of
undisputed material facts, those facts may be accepted as true.5
Yet, Siddeeq filed a response that failed to comply with the rules
and did not respond to the County’s statement of undisputed facts.
Once the County asserted in its reply that Siddeeq’s response failed
to comply with the rules, and, therefore, that the district court was
required to accept the County’s factual allegations as true, Siddeeq
filed his motion to resubmit his response—over a month after the
filing of his initial response.
4 First, Siddeeq requested a five-week extension to file his response so that he
could visit his father, who was very ill. The magistrate judge granted this
extension, but cautioned that no additional extensions would be granted.
Nevertheless, when Siddeeq’s father passed away and he sought an additional
three-week extension, the magistrate granted Siddeeq’s motion, but stated in
the order that “[n]o further extensions will be granted.”
5 A party has 21 days to respond to a motion for summary judgment. N.D.
Ga. Civ. R. 56.1(A). The Local Rules also provide that the response “shall
include” “a response to the movant’s statement of undisputed facts,”
containing “individually numbered, concise, nonargumentative responses
corresponding to each of the movant’s numbered undisputed material facts.”
Id. Civ. R. 56.1(B)(2). The rule cautions that the district court “will deem . . .
the movant’s facts as admitted unless,” among other things, the respondent
“directly refutes the movant’s facts with concise responses supported by
specific citations to evidence.”
Id.
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12 Opinion of the Court 20-10155
Although we give liberal construction to
pro se pleadings,
“we nevertheless . . . require them to conform to procedural rules.”
Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007) (quotation
omitted). Siddeeq knew the specific consequences that would flow
from failing to comply with Rule 56.1, and had 82 days to avoid
incurring them—despite the personal loss he suffered during that
time. Under these circumstances, the district court did not abuse
its discretion in denying Siddeeq’s motion to resubmit his response
brief.
See Young, 358 F.3d at 864 (explaining that “[a] district court
must be able to exercise its managerial power to maintain control
over its docket,” and that, in deciding whether to grant extensions
of time, “[t]he district court must consider the equities not only to
plaintiff . . . , but also to the opposing parties and counsel, as well
as to the public, including those persons affected by the court’s
increasingly crowded docket”).
B. Whether the district court erred in granting summary
judgment to the County on Siddeeq’s substantive claims
“We
de novo review a district court’s grant of summary
judgment,” asking whether the evidence, viewed in the light most
favorable to the nonmoving party, entitles the moving party to
judgment as a matter of law.
Alvarez v. Royal Atl. Developers,
Inc., 610 F.3d 1253, 1263–64 (11th Cir. 2010). We may affirm on
any ground supported by the record.
Id. at 1264. Crucially, the
leniency we afford
pro se litigants by construing their pleadings
liberally does not permit a court “to serve as
de facto counsel for a
party, or to rewrite an otherwise deficient pleading to sustain an
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20-10155 Opinion of the Court 13
action.”
Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168–69 (11th
Cir. 2014) (quotation omitted).
When an appellant, including a
pro se appellant, fails to
challenge properly on appeal one of the grounds on which the
district court based its judgment, he abandons any challenge to it.
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008)
.6 An
appellant may also abandon a claim by raising it for the first time
in a reply brief.
Sapuppo, 739 F.3d at 683. Similarly, a party may
waive an issue by first raising it late in the proceedings before the
district court.
Thomas v. Bryant, 614 F.3d 1288, 1305–06 (11th Cir.
2010). Generally, we will not consider an issue raised for the first
time on appeal.
Access Now, Inc. v. Sw. Airlines Co., 385 F.3d
1324, 1331–32 (11th Cir. 2004).
Moreover, a party failing to object to a magistrate judge’s
proposed findings or recommendations contained in a R&R
“waives the right to challenge on appeal the district court’s order
based on unobjected-to factual and legal conclusions if the party
was informed of the time period for objecting and the
consequences on appeal for failing to object.” 11th Cir. R. 3-1;
see
also Harrigan v. Metro Dade Police Dep’t Station #4, 977 F.3d
6 An appellant also abandons a claim by: (a) making only passing references to
it, (b) raising it in a perfunctory manner without supporting arguments and
authority, (c) referring to it only in the “statement of the case” or “summary
of the argument,” or (d) referring to it only in the background of his or her
main arguments or burying it within those arguments.
Sapuppo, 739 F.3d at
681.
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14 Opinion of the Court 20-10155
1185, 1191 (11th Cir. 2020) (explaining that we will apply Rule 3-1
only where the party was given “clear notice” of the time period
for objections and the consequences of failing to object).7
i. Siddeeq’s religious discrimination claim
Siddeeq asserted that the County discriminated against him
for his Muslim faith when it singled him out for his alleged conflict
of interest with NWI and prohibited him from associating or
communicating with any CHDO organizations. He argues that the
district court erred in concluding that he did not present a similarly
situated comparator for purposes of establishing a
prima facie case
of discrimination.8 The County argues that Siddeeq waived any
7 Rule 3-1 provides that:
A party failing to object to a magistrate judge’s finding or
recommendations contained in a report and recommendation in
accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the
right to challenge on appeal the district court’s order based on
unobjected-to factual and legal conclusions if the party was informed
of the time period for objecting and the consequences on appeal for
failing to object. In the absence of a proper objection, however, the
court may review on appeal for plain error if necessary in the interests
of justice.
11th Cir. R. 3-1.
8 Siddeeq claims that it was unreasonable for the district court to require him
to identify specific individual comparators when he was the sole person
subject to a prohibition on engaging in business transactions or
communications with any CHDO, and that it ignored record evidence that he
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20-10155 Opinion of the Court 15
challenge to this claim by failing to object to those portions of the
R&R. We agree with the County.
The district court denied Siddeeq’s religious discrimination
claim upon accepting the magistrate judge’s findings that Siddeeq
failed to identify a valid comparator and that the record did not
contain direct evidence of discrimination. While Siddeeq filed
objections to the R&R, he did not object to these findings. In fact,
he stated affirmatively in his objections that he would “not invest
in defending the discrimination he believes did occur,” and even
conceded that “the Court may have a point with respect to
discrimination.” Furthermore, Siddeeq was informed of the time
period to object and that “the Court of Appeals will deem waived
any challenge to which there was no objection, subject to interests-
of-justice plain error review” as required for Rule 3-1 to apply.
Harrigan, 977 F.3d at 1191. Accordingly, we consider any challenge
to the district court’s treatment of Siddeeq’s discrimination claim
waived. 11th Cir. R. 3-1.9 Accordingly, we affirm the district
presented regarding Habitat for Humanity’s Christian affiliation. Regardless,
Siddeeq maintains that he identified a valid comparator group in proceedings
below. Additionally, he argues that the County failed to show similar levels
of concern regarding potential conflicts of interest between its employees and
Habitat for Humanity, which supports an inference of discriminatory intent.
9 And, we find nothing in the record that suggests that plain error review is
appropriate in this appeal, particularly in light of Siddeeq’s concession in his
objection to the R&R his claim may have been deficient.
See Ledford v.
Peeples, 657 F.3d 1222, 1258 (11th Cir. 2011) (explaining that the plain error
doctrine “rarely applies in civil cases”).
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16 Opinion of the Court 20-10155
court’s grant of summary judgment on Siddeeq’s discrimination
claim.
ii. Siddeeq’s retaliation claim
Next, we turn to and reject Siddeeq’s argument that the
district court erred by granting summary judgment to the County
on his retaliation claim. We agree with the district court that
Siddeeq failed to establish a
prima facie case of retaliation because
there was insufficient temporal proximity between Siddeeq’s filing
of the July 2013 EEOC complaint and the subsequent adverse
employment actions to establish a causal relationship.
Under Title VII of the Civil Rights Act of 1964 (“Title VII”),
an employer may not retaliate against an employee because the
employee “has opposed any practice made an unlawful
employment practice” or “has made a charge” regarding an
unlawful employment practice under Title VII. 42 U.S.C. § 2000e-
3(a).
When a plaintiff relies on circumstantial rather than direct
evidence for a retaliation claim, we generally apply the burden
shifting framework articulated in
McDonnell Douglas.10
Hurlbert
v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir.
2006). To establish a
prima facie case of retaliation under
McDonnell Douglas, the plaintiff must show that (1) he engaged in
a statutorily protected expression, (2) he suffered a materially
10
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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20-10155 Opinion of the Court 17
adverse action, and (3) there was a causal link between the adverse
action and his protected expression.
Lucas v. W.W. Grainger,
Inc.,
257 F.3d 1249, 1260–61 (11th Cir. 2001). A materially adverse
employment action is an action that “might have dissuaded a
reasonable worker from making or supporting a charge of
discrimination.”
Burlington Northern & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006) (quotation marks omitted).
If the plaintiff presents a
prima facie case, it creates a
“presumption that the adverse action was the product of an intent
to retaliate.”
Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2009).
The burden of production then shifts to the employer to rebut the
presumption by articulating a legitimate, non-discriminatory
reason for the employment action.
Id. If the employer produces
such a reason, the presumption is rebutted, and the plaintiff must
then demonstrate that the “proffered reason was merely a pretext
to mask [retaliatory] actions.”
Id.
To establish the necessary causation, a plaintiff must
demonstrate that “[his] protected activity was a but-for cause of the
alleged adverse action by the employer.”
Univ. of Tx. Sw. Med.
Ctr. v. Nassar, 570 U.S. 338, 362 (2013). “Importantly, throughout
this entire process, the ultimate burden of persuasion remains on
the employee.”
Sims v. MVM, Inc., 704 F.3d 1327, 1333 (11th Cir.
2013).
The parties do not dispute that Siddeeq engaged in a
protected activity when he filed his July 2013 EEOC charge or
that he suffered an adverse action when his April 2014 request to
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18 Opinion of the Court 20-10155
volunteer with CHDOs was denied and again in September 2014
when he was terminated. Rather, the district court concluded
that Siddeeq failed to establish a
prima facie case because he failed
to present any evidence showing a causal connection between the
filing of the July 2013 EEOC complaint and the subsequent
adverse actions. Nine months passed between Siddeeq’s EEOC
complaint and the first adverse action, and an additional five
months lapsed before he was actually fired—a total of fourteen
months. Finding a temporal connection under these
circumstances would strain credulity and our precedent.
See
Thomas v. Cooper Lighting,
Inc., 506 F.3d 1361, 1364 (11th Cir.
2007 (explaining that, for purposes of establishing causation, the
temporal proximity between the protected activity and the
adverse actions “must be very close” and “[a] three to four month
disparity” between the two was insufficient to establish causation,
absent other evidence).
Hence, the district court did not err by concluding that
Siddeeq failed to establish a causal relationship between his July
2013 EEOC complaint and subsequent adverse employment
actions. Accordingly, because he failed to establish a
prima facie
case of retaliation, summary judgment was appropriate.11
11 Siddeeq make[s various arguments related to why he believes that the
County’s stated reasons for his termination were pretextual and how he did
not have a conflict of interest at the time of his termination. Because he failed
to establish a
prima facie case of retaliation, we do not reach these arguments.
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20-10155 Opinion of the Court 19
AFFIRMED.12
12 Siddeeq’s motion to supplement the record on appeal is DENIED.
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