                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT           FILED
                          ________________________ U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                                 No. 04-14222                     MAY 31, 2005
                             Non-Argument Calendar              THOMAS K. KAHN
                           ________________________                 CLERK


                      D.C. Docket No. 02-01608-CV-RWS-1

IRENE L. STEPHENS,

                                                              Plaintiff-Appellant,

      versus

GEORGIA DEPARTMENT OF TRANSPORTATION,

                                                              Defendant-Appellee.
                          __________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         _________________________

                                  (May 31, 2005)

Before TJOFLAT, ANDERSON and DUBINA, Circuit Judges.

PER CURIAM:

      Irene L. Stephens, proceeding pro se, appeals several decisions by the

district court in her civil action filed against the Georgia Department of

Transportation (“DOT”). She claimed, inter alia, that the DOT denied her a
transfer and terminated her based on illegal, discriminatory motives. Stephens

appeals the following procedural decisions: (1) the denial of her motion for

sanctions; (2) the denial of her motion to amend her complaint; (3) the grant of the

DOT’s motion to strike portions of the record; and (4) the denial of her motion to

dismiss her complaint without prejudice. Stephens also appeals the district court’s

grant of summary judgment in favor of the DOT. We affirm the district court in

all respects. Stephens’ arguments are addressed in turn.

                 I. STEPHENS’ PROCEDURAL ARGUMENTS

      A. Denial of Stephens’ Motion for Sanctions

      Stephens argues that her due process rights were violated by virtue of the

DOT’s alleged destruction of a 1994 employee handbook and its alleged

obstruction of justice. Applying a liberal reading of Stephens’s appellate brief, it

appears that she is asserting that the district court erred by denying her motion for

sanctions under Fed.R.Civ.P. 11 because the DOT was acting in bad faith

throughout the litigation. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594,

596 (1972) (holding that pro se pleadings are held to less stringent standards than

counseled pleadings).

      We review the district court’s determinations regarding sanctions for abuse

of discretion. Souran v. Travelers Ins. Co., 982 F.2d 1497, 1506 (11th Cir. 1993).

                                          2
Federal Rule of Criminal Procedure 11(c) provides for sanctions when parties

make certain representations to the court. District courts may impose sanctions

pursuant to Fed.R.Civ.P. 11(c) “(1) when a party files a pleading that has no

reasonable factual basis; (2) when the party files a pleading that is based on a legal

theory that has no reasonable chance of success and that cannot be advanced as a

reasonable argument to change existing law; and (3) when the party files a

pleading in bad faith for an improper purpose.” Souran, 982 F.2d at 1506 (internal

quotation omitted). Stephens’ claim that the DOT acted in bad faith by concealing

the 1994 employee handbook is without merit. Stephens admittedly possessed a

copy of the handbook. Stephens did not produce any evidence of bad faith on the

part of the DOT. Accordingly, the district court did not abuse its discretion by

denying Stephens’s motion for sanctions.

      (B)    Denial of Stephens’s Motion to Amend her Complaint

      Stephens argues that the district court “erred and/or abused [its] discretion”

by denying her motion for leave to amend her already amended complaint.

Although leave to amend should be liberally granted when necessary in the

interest of justice, the decision is committed to the district court's discretion and

grant or denial of leave to amend is reviewed for abuse of discretion. Jennings v.

BIC Corp., 181 F.3d 1250, 1258 (11th Cir. 1999); Fed.R.Civ.P. 15(a).

                                           3
       Stephens filed the motion to amend over six months after the deadline set by

the Scheduling Order. Stephens’ motion was thus untimely, and Federal Rule of

Civil Procedure 16(b) requires her to show good cause in order for the court to

grant her motion. Fed. R. Civ. Pro. 16(b). The only reason Stephen offered for the

delay is that she discovered a new legal theory through additional research. We do

not find that the district court abused its discretion in holding that this proffered

reason was insufficient to show good cause. See Jennings, 181 F.3d at 1258 (11th

Cir. 1999) (stating that undue delay is an adequate basis for denying leave to

amend).1

       (C)     Grant of the DOT’s Motion to Strike

       Stephens argues that the district court erred by striking portions of her

summary judgment motion, including portions concerning the bankruptcy filing of

another DOT employee who was a witness. She specifically argues that

information concerning the bankruptcy filing is relevant to the instant case

because that employee’s statements were used to support Stephens’s termination,

and the bankruptcy information addressed the employee’s credibility.




       1
                Having found that the district court did not abuse its discretion in denying Stephens’
motion to amend, we do not reach the question of whether the employee handbook constituted a
unilateral contract because that issue was only raised in the motion to amend.

                                                  4
      We review the district court’s evidentiary rulings for an abuse of discretion,

reversing only when there is substantial prejudice. Brochu v. City of Riviera

Beach, 304 F.3d 1144, 1155 (11th Cir. 2002). The Federal Rules of Civil

Procedure provide that “the court may order stricken from any pleading any

insufficient defense or any redundant, immaterial, impertinent, or scandalous

matter.” Fed.R.Civ.P. 12(f). We conclude that the district court did not abuse its

discretion in striking portions of Stephens’s motion for summary judgment

because it contained “immaterial, impertinent, or scandalous matter.” See

Fed.R.Civ.P. 12(f).

      (D) Denial of Stephens’s Voluntary Dismissal of her Complaint
      Without Prejudice

      Stephens argues that the district court erred by denying her motion to

dismiss her complaint voluntarily without prejudice, asserting that the DOT would

not lose any substantial rights as a result of the dismissal.

      We review for abuse of discretion the district court’s decisions regarding the

dismissal of a complaint without prejudice. Pontenberg v. Boston Scientific

Corp., 252 F.3d 1253, 1256 (11th Cir. 2001). The Federal Rules of Civil

Procedure permit a plaintiff to dismiss an action voluntarily only “upon order of

the court and upon such terms and conditions as the court deems proper” after the



                                           5
defendant has filed an answer to the complaint, unless there is a stipulation signed

by all parties to the action. Fed.R.Civ.P. 41(a). We have held that “[a] voluntary

dismissal without prejudice is not a matter of right.” Fisher v. P.R. Marine Mgmt.,

Inc., 940 F.2d 1502 (11th Cir. 1991).

      [I]n most cases, a voluntary dismissal should be granted unless the
      defendant will suffer clear legal prejudice, other than the mere
      prospect of a subsequent lawsuit, as a result. The crucial question to
      be determined is, Would the defendant lose any substantial right by
      the dismissal. In exercising its broad equitable discretion under Rule
      41(a)(2), the district court must weigh the relevant equities and do
      justice between the parties in each case, imposing such costs and
      attaching such conditions to the dismissal as are deemed appropriate.

Pontenberg, 252 F.3d at 1255-56 (citations, quotations, and emphasis omitted).

      In Stephens’s case, the DOT objected to a dismissal without prejudice,

arguing that such a dismissal would be prejudicial due to its pending motion for

summary judgment. Stephens filed her complaint in June 2002. She filed her

motion to voluntarily dismiss without prejudice in May 2004. During that two

year period, numerous motions had been filed, extensive discovery had been

produced, and motions for summary judgement were pending. The district court

agreed with the DOT’s assertion that only a dismissal with prejudice would be

appropriate. Stephens was not entitled to a voluntary dismissal without prejudice

as a matter of right, and the DOT demonstrated that it would be prejudiced by such



                                         6
a dismissal. Accordingly, the district court did not abuse its discretion by denying

Stephens’s motion to dismiss her complaint voluntarily without prejudice.

                     II. STEPHENS’ SUBSTANTIVE ARGUMENTS

        In her complaint, Stephens alleged: (1) violations of her due process and

equal protection rights; (2) employment discrimination; and (3) retaliation for

exercising a legal right. The district court read the complaint broadly in deference

to Stephens’ pro se status, and considered her to have alleged: (1) a violation of

due process and equal protection rights pursuant to 42 U.S.C. § 1983; (2) a

violation of Title VII of the Civil Rights Act; (3) a violation of the Americans with

Disabilities Act (“ADA”); and (4) a violation of the Age Discrimination

Employment Act (“ADEA”). The district court granted summary judgment to the

DOT on all claims.2

        We review the district court’s grant of a motion for summary judgment de

novo, “applying the same legal standards that bound the district court.” Jackson v.

BellSouth Telecomm., 372 F.3d 1250, 1279 (11th Cir. 2004). Summary judgment

        2
                 On appeal, Stephens also argues that a psychologist who was supposed to examine
her on December 8, 2000, improperly released her medical records to the DOT. Stephens did not
raise this issue in the district court. We generally will not consider issues raised for the first time on
appeal, with several exceptions, including when the issue "involves a pure question of law, and if
refusal to consider it would result in a miscarriage of justice." Narey v. Dean, 32 F.3d 1521, 1526-27
(11th Cir. 1994). Since Stephens raised her claim regarding "patient/client confidentiality" for the
first time on appeal, and our refusal to consider it will not result in a miscarriage of justice, we
conclude that Stephens waived this claim.

                                                    7
is appropriate when “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Fed.R.Civ.P. 56(c). A material fact is genuine only

“if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.

      A. Sovereign Immunity

      The district court granted summary judgment to the DOT on Stephens’

§ 1983, ADA, and ADEA claims after finding that the DOT had immunity

pursuant to the Eleventh Amendment. Stephens brought her claim solely against

the Georgia Department of Transportation. As an arm of the state, the DOT is

entitled to the same sovereign immunity of the state itself. Robinson v. Ga. Dep’t

of Transp., 966 F.2d 637, 640 (11th Cir. 1992). Congress has not abrogated

immunity for claims brought pursuant to § 1983, the ADEA, or the ADA. See id.

(holding that the Eleventh Amendment barred plaintiff’s § 1983 against Georgia

DOT); Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 120 S. Ct. 631 (2000) (holding

that the ADEA did not validly abrogate Eleventh Amendment immunity); Bd. of

Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 121 S. Ct. 955 (2001) (holding

that state agencies were entitled to Eleventh Amendment immunity from

                                          8
employees’ claims brought pursuant to the ADA). Therefore, the district court’s

grant of summary judgment on these claims was proper.

       B. Title VII

       The district court, reading Stephens’ claim liberally, stated that she alleged

several cognizable theories under a Title VII claim: (1) that Stephens was denied a

transfer and ultimately terminated because of her sex; (2) that she was a victim of

disparate treatment; and (3) that she was retaliated against because of her sex. The

district court found that Stephens failed to establish a prima facie case under Title

VII and that even if she had established a prima facie case, the DOT came forward

with a legitimate, non-discriminatory reason for terminating her that Stephens

could not show was pretextual. 3

       A plaintiff may establish a prima facie case of discrimination by virtue of

the denial of a job transfer or termination by showing that (1) she is a member of a

protected class; (2) she is qualified for the position; (3) she was subjected to


       3
                Stephens argues that the district court erred by conducting a de novo inquiry of her
claims because, during her action to obtain state unemployment benefits, a state administrative
hearing officer allegedly had already ruled on the merits of her claims by determining that the DOT
had failed to meet its burden of proof to establish Stephens's ineligibility for benefits. By finding
that the DOT had failed to meet its burden of proof to establish Stephens's disqualification from
unemployment benefits, the state administrative hearing officer did not address the merits of any
potential ADEA, ADA, or Title VII claims. Furthermore, the state administrative ruling does not
have a preclusive effect over Stephens's Title VII claims. See Bishop, 361 F.3d 607, 610 (11th Cir.
2004). Accordingly, the district court did not err by conducting a de novo review of the case before
granting summary judgment in favor of the DOT.

                                                 9
adverse employment action; and (4) she was replaced by a person outside the

protected class. Kelliher v. Veneman, 313 F.3d 1270, 1275 (11th Cir. 2002). The

plaintiff generally has the burden of establishing a prima facie case of

discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct.

1817, 1824, 36 L.Ed.2d 668 (1973) Establishing a prima facie case of

discrimination creates a presumption of unlawful discrimination, and the employer

must come forward with evidence of a legitimate non-discriminatory reason for its

decision. Id. at 802, 93 S.Ct. at 1824. This burden is “exceedingly light,” and the

employer must merely proffer non-discriminatory reasons, not prove them.

Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1142 (11th Cir. 1983). When the

employer expresses one or more legitimate reasons for its actions, the presumption

of discrimination evaporates, and the plaintiff must raise a genuine issue of

material fact as to whether the reasons offered by the defendant are pretextual.

McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825.

      Assuming arguendo that Stephens established a prima facie case with

respect to one or more of her claims, summary judgment for the DOT was

nevertheless appropriate because it offered legitimate, non-discriminatory reasons

for her termination, and Stephens did not produce evidence creating a genuine

issue of material fact that the proffered reasons were pretextual. Stephens refused

                                         10
to follow her supervisors’ directions on several occasions, took frequent sick

leave, and took a state vehicle and drove dangerously on public roads. Even after

this, the DOT attempted to meet with her and work with her, but she refused to

cooperate. Any of these reasons are sufficient legitimate reasons for termination,

and nothing in the record indicates that they are pretextual.

                                   III. CONCLUSION

      Upon careful review of the record and the parties’ briefs, we find no

reversible error.4

AFFIRMED.




      4
             Other arguments asserted on appeal are rejected without need for further discussion.

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