              Case: 12-14044   Date Filed: 02/15/2013   Page: 1 of 6

                                                        [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT

                       ____________________________

                               No. 12-14044
                           Non-Argument Calendar
                       ____________________________

                   D. C. Docket No. 2:11-cv-00631-UA-SPC




WILLIAM DONNELL,

                                                               Plaintiff-Appellant,

     versus

LEE COUNTY PORT AUTHORITY,

                                                             Defendant-Appellee.

                       ____________________________

                  Appeal from the United States District Court
                       For the Middle District of Florida
                      ____________________________

                               (February 15, 2013)


Before MARCUS, KRAVITCH, and EDMONDSON, Circuit Judges.
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PER CURIAM:



      William Donnell appeals the dismissal, pursuant to Fed.R.Civ.P. 12(b)(6), of

his complaint for failure to state a claim. In Florida, Donnell worked for

Defendant Lee County Port Authority (“LCPA”) as a non-unionized public

employee. After receiving anonymous complaints about Donnell’s conduct, LCPA

suspended Donnell for three days and then demoted him. Donnell filed this suit

against LCPA, asserting claims for due process, equal protection, and first

amendment violations. No reversible error has been shown; we affirm.

      We review a district court’s ruling on a Rule 12(b)(6) motion to dismiss de

novo, accepting all well-pleaded facts in the complaint and all reasonable

inferences drawn from those facts as true. McGinley v. Houston, 361 F.3d 1328,

1330 (11th Cir. 2004). To survive dismissal for failure to state a claim, “a

plaintiff’s obligation to provide the grounds of his entitlement to relief requires

more than labels and conclusions, and a formulaic recitation of the elements of a

cause of action will not do.” Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65

(2007) (quotations omitted). “Factual allegations must be enough to raise a right to

relief above the speculative level.” Id. at 1965. Mere conclusory statements in

support of a threadbare recital of the elements of a cause of action will not suffice.

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

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      The general rule under Florida law is that -- absent a statute, ordinance, or

contract providing otherwise -- employees who are employed for an indefinite term

are at-will employees who may be terminated for any reason at any time. See

Smith v. Piezo Tech. & Prof’l Adm’rs, 427 So. 2d 182, 184 (Fla. 1983); Moser v.

Barron Chase Secs., Inc., 783 So. 2d 231, 236 n.5 (Fla. 2001) (“A property interest

may be created by statute, ordinance or contract, as well as policies and practices

of an institution”). Donnell contends that Florida’s Public Employment Relations

Act, Fla. Stat. § 447.201 et seq. (“PERA”) gives him a property interest in his

employment.

      PERA implements a collective bargaining right -- created by the Florida

Constitution -- and establishes procedures to be followed during such bargaining.

See Sarasota Cnty. Sch. Dist. v. Sarasota Classified/Teachers Ass’n, 614 So. 2d

1143, 1146 (Fla. 2d Dist. Ct. 1993). That Donnell is a “public employee” within

the meaning of PERA and that he is not covered under a collective bargaining

agreement are undisputed. While a collective bargaining agreement governed by

PERA may create certain property interests in employment, nothing in the statute’s

plain language or in Florida’s case law establishes that PERA -- by itself -- creates

a constitutionally protected property interest in employment for public employees

not covered by a collective bargaining agreement. Because Donnell has no




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property interest in his employment, he cannot state a claim for a due process

violation.

      In addition, even if we assume -- without deciding -- that Donnell had a

property interest in his employment, he cannot state a federal procedural due

process claim if adequate state remedies were available to him. See McKinney v.

Pate, 20 F.3d 1550, 1563, 1557 (11th Cir. 1994) (en banc). A constitutional

violation is actionable under section 1983 “only when the state refuses to provide a

process sufficient to remedy the procedural deprivation.” Id. And “the state may

cure a procedural deprivation by providing a later procedural remedy.” Id.

Because the Florida courts have the power to remedy Donnell’s alleged loss by

granting both monetary and equitable relief, an adequate state remedy was

available. See id. at 1564; Walton v. Health Care Dist., 862 So. 2d 852, 856-57

(Fla. 4th Dist. Ct. App. 2003). Thus, Donnell cannot show a violation of his

federal procedural due process rights.

      Donnell also alleged that LCPA violated his equal protection rights by

providing a grievance procedure for its unionized employees but not for its non-

unionized employees. To plead properly an equal protection claim, a plaintiff must

allege that similarly situated persons have been treated disparately through state

action. See Thigpen v. Bibb Cnty., Ga., Sheriff’s Dep’t, 223 F.3d 1231, 1237

(11th Cir. 2000). We have explained that “because of their unique status in the

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workplace, [unionized] employees are never similarly situated with [non-

unionized] employees.” Marshall v. W. Grain Co., Inc., 838 F.2d 1165, 1170 (11th

Cir. 1988) (emphasis in original) (denying a Title VII discrimination claim).

Because Donnell cannot show that similarly situated persons were treated

differently, he has failed to state an equal protection claim.

      Next, Donnell alleged that LCPA’s policy of denying non-unionized

employees access to the “fair and equitable grievance procedure” mandated by

PERA burdened his first amendment right not to associate with a union. Donnell

has no federal constitutional right to be treated just as the unionized employees

have bargained to be treated. And LCPA did not infringe on Donnell’s First

Amendment right not to join a union by entering into a collective bargaining

agreement that benefited union members.

      LCPA seeks sanctions against Donnell, pursuant to Fed.R.Civ.P. 38, for

asserting claims that are frivolous and contrary to established law. Rule 38

provides that “[i]f a court of appeals determines that an appeal is frivolous, it may .

. . award just damages and single or double costs to the appellee.” We have

imposed sanctions “against appellants who raise ‘clearly frivolous claims’ in the

face of established law and clear facts.” Farese v. Scherer, 342 F.3d 1223, 1232

(11th Cir. 2003).




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      On appeal, Donnell challenges chiefly the district court’s interpretation of

Florida law on an issue that has not been decided directly by the Florida courts:

whether PERA creates a property interest in employment for non-unionized public

employees. Although Donnell has not prevailed on appeal, his claims are not so

clearly frivolous or contrary to established law to warrant Rule 38 sanctions.

      For the same reasons, we deny LCPA’s motion for attorneys’ fees. See

Hughes v. Rowe, 101 S.Ct. 173, 178 (1980) (explaining that “a plaintiff should not

be assessed his opponent’s attorney’s fees unless a court finds that his claim was

frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate

after it clearly became so.”).

      Judgment is AFFIRMED; motion for damages and costs is DENIED.




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