              Case: 16-11965     Date Filed: 05/24/2017    Page: 1 of 8


                                                               [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 16-11965
                             Non-Argument Calendar
                           ________________________

                        D.C. Docket No. 5:14-cv-00350-LJA



WILLIAM D. HUGHLEY,

                                                                 Plaintiff-Appellant,

                                       versus


UPSON COUNTY BOARD OF COMMISSIONERS,
JUDGE CHRISTOPHER C. EDWARDS,
Superior Court, Griffin Judicial Circuit, official and
individual capacity,
JUDGE W. FLETCHER SAMS,
Superior Court, Griffin Judicial Circuit, official and
individual capacity,
JUDGE TOMMY RICHARD HANKINSON,
Superior Court, Griffin Judicial Circuit, official and
individual capacity,
JUDGE ROBERT MALLORY CRAWFORD,
Superior Court, Griffin Judicial Circuit, official and individual capacity,

                                                              Defendants-Appellees.
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                           ________________________

                    Appeal from the United States District Court
                        for the Middle District of Georgia
                          ________________________

                                   (May 24, 2017)


Before MARCUS, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.

PER CURIAM:

      William Hughley appeals the dismissal of his amended complaint against the

Upson County Board of Commissioners and Judges Christopher Edwards, Fletcher

Sams, Tommy Hankinson, and Robert Crawford of the Superior Court of the

Griffin Judicial Circuit. The district court dismissed Hughley’s complaint for

failure to state a claim. Fed. R. Civ. P. 12(b)(6). We affirm.

                                I. BACKGROUND

      Hughley served as an associate magistrate judge in Upson County from 1991

to 2013. On July 23, 2013, Hughley received a letter from the Judicial

Qualifications Commission requesting evidence that his “current appointment . . .

compl[ied] with the requirements of OCGA 15-10-20 . . . [as being] properly

consented to by the Superior Court judges.” See Ga. Code Ann. § 15-10-20(c)(1),

(d). The Chief Magistrate Judge submitted to the Superior Court Judges a letter

appointing Hughley, but the Judges did not approve Hughley’s appointment.



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      Hughley, through counsel, filed a complaint against the Board and the

Judges. Hughley complained that his “employment was terminated” because he

was “52 years of age,” in violation of the Age Discrimination in Employment Act,

29 U.S.C. § 621 et seq., and because he was “African-American,” in violation of

the Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 1981, 2000e-2, and the

Equal Protection Clause of the Fourteenth Amendment, U.S. Const. Amend. XIV;

42 U.S.C. § 1983. Hughley alleged that the Judges “intentionally made false

complaints . . . to the [Judicial Qualifications Commission]” in which they “falsely

stated that [he] was not properly admitted as a magistrate judge.” Hughley also

alleged that the Judges “wanted to replace [him] with a Caucasian woman” and

that at least one Judge harbored “racial anim[us]” because Hughley had been hired

pursuant to “a Federal Order mandating the appointment of a minority associate

magistrate judge.” Hughley also complained about retaliation by the Board and

Judges, in violation of Title VII, id. §§ 1981, 2000e-2, and about the violation of

his right to free speech under the First Amendment, U.S. Const. Amend. I. See 42

U.S.C. § 1983. Hughley alleged that he “upset” the Board and the Judges and they

“agreed to have [him] removed from his position as magistrate judge” because he

had “scolded” a police officer and “bann[ed] [him] from the magistrate court,”

which forced the officer to request “criminal warrants” from the Judges and

“increased their workload.”


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       The Board and the Judges filed motions to dismiss, which the district court

granted. See Fed. R. Civ. P. 12(b)(6). The district court ruled that Hughley failed to

allege facts to establish that either the Board or the Judges had the required number

of employees to qualify as an employer under Title VII and the Age Discrimination

Act. Even had Hughley satisfied the numerosity requirement, the district court

ruled, he failed to state plausible claims of discrimination based on his race or age.

The district court also ruled that Hughley’s complaints that the Board and the

Judges violated section 1983 and his rights to equal protection and free speech

were “improperly pled” and, in the alternative, failed to state a claim for relief.

                            II. STANDARD OF REVIEW

       We review de novo the dismissal of a complaint for failure to state a claim.

Villarreal v. R.J. Reynolds Tobacco Co., 839 F.3d 958, 962 (11th Cir. 2016). We

accept all allegations in the complaint as true and construe them in the light most

favorable to the plaintiff. Id. Dismissal for failure to state a claim is appropriate if

the facts pleaded fail to state a claim for relief that is “plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

                                   III. DISCUSSION

       Hughley argues that his “complaint states plausible claim[s].” Hughley

argues that his factual allegations provided “fair notice” to the Board and the

Judges that they qualified as employers and that they had violated his rights under


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the “First and Fourteenth Amendment[s].” Hughley also argues that he alleged

facts sufficient to establish that the Board and the Judges discriminated against

him; that he spoke “as a citizen similar to [a] person acting as a juror in a criminal

trial”; and that his “remov[al] from office without cause” “violated the [E]qual

[P]rotection [Clause] of the 14th Amendment.” We reject these arguments.

      Hughley failed to allege facts establishing that either the Board or the Judges

qualified as an employer, as required to state a claim under Title VII and the Age

Discrimination Act. Those statutes prohibit discrimination by an “employer,” 42

U.S.C. § 2000e-2(a)(1) (Title VII); 29 U.S.C. § 623(a)(1) (Age Discrimination),

which is defined as a person who employs 15 or more employees, 42 U.S.C.

§ 2000e(b); 29 U.S.C. § 630(b). See Arbaugh v. Y&H Corp., 546 U.S. 500, 503

(2006). Hughley failed to allege that the Board or the Judges had any employees,

and the charge of discrimination attached to his complaint stated that the number of

employees was “unknown.”

      Even if Hughley had pleaded facts that satisfied the numerosity requirement,

he failed to state a plausible claim of discrimination based on his race under Title

VII or sections 1981 or 1983 or based on his age under the Age Discrimination

Act. Although Hughley’s complaint contained facts sufficient to establish three

elements common to all his causes of action—he “is a member of a protected

class,” was qualified for the position, and “was subjected to an adverse


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employment action”—there were no facts alleged that supported the fourth element

of each of his claims. See Burke-Fowler v. Orange Cty., Fla., 447 F.3d 1319, 1323

(11th Cir. 2006) (Title VII and section 1981); Turlington v. Atlanta Gas Light Co.,

135 F.3d 1428, 1432 (11th Cir. 1998) (Age Discrimination Act). Hughley failed to

state a claim of racial discrimination because he alleged no facts suggesting that his

“employer treated similarly situated employees outside of [his] protected class

more favorably than [him].” See Burke-Fowler, 447 F.3d at 1323. Hughley alleged

that the Judges “wanted to replace [him] with a Caucasian woman,” but he failed to

identify who replaced him. That omission was also fatal to Hughley’s complaint

about age discrimination because there were no facts alleged from which to

plausibly infer “that a substantially younger person filled [his] position,” see

Turlington, 135 F.3d at 1432, or that his age played a role in the decision not to

reappoint him, see Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000).

      Hughley argues that his “complaint reveals there aren’t any factual reasons”

other than discrimination to explain why he was denied a reappointment, but

Hughley alleged a legitimate, nondiscriminatory reason in his complaint. Hughley

alleged that he was “fired from his position because he refused to allow [the police

officer] in his courtroom to obtain warrants,” which “upset” the Judges because

that “increased [their] workload.”




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      Hughley’s arguments that his complaint stated plausible claims of

“intentional race discrimination” fail. Hughley alleged that the Judges “made false

complaints” to the Judicial Qualifications Commission “that [Hughley] was not

properly admitted as a magistrate judge” to conceal their discrimination, but his

claim of falsity is negated by Hughley’s allegation that he “served as magistrate

judge without his appointment ever being consented [to] or approved by the

Superior Court Judges.” Hughley also argues, for the first time, that “the Appellees

have an immediate past [history] of discrimination,” see Lee v. Conecuh Cty. Bd. of

Ed., 634 F.2d 959, 963 (5th Cir. 1981), but we decline to consider an argument that

Hughley did not present to the district court, see Access Now, Inc. v. Sw. Airlines

Co., 385 F.3d 1324, 1331 (11th Cir. 2004).

      Hughley’s complaints about violations of his constitutional rights had

similar deficiencies. Hughley’s complaints that the Board and the Judges violated

“The Civil Rights Act of 1877, 42 U.S.C. § 1983,” “Equal Protection under the 14th

Amendment,” and the “1st Amendment of the United State[s] Constit[ution]” failed

to state cognizable claims for relief. See Graham v. Connor, 490 U.S. 386, 393–94

(1989) (Section “1983 is not itself a source of substantive rights,” but merely

provides “a method for vindicating federal rights elsewhere conferred.”); Williams

v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1299 (11th Cir. 2007). And

Hughley’s factual allegations failed to establish that he had been deprived of “any


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rights, privileges, or immunities secured by the Constitution and laws” of the

United States, 42 U.S.C. § 1983. Hughley complained about retaliation for

exercising his rights under the First Amendment, but he failed to allege facts that

established he had engaged in constitutionally protected speech, see Ziegler v.

Martin Cty. Sch. Dist., 831 F.3d 1309, 1327 (11th Cir. 2016). Hughley spoke as a

magistrate judge, instead of “as a citizen on a matter of public concern,” Garcetti v.

Ceballos, 547 U.S. 410, 418 (2006), when he scolded the police officer and banned

him from the magistrate court. Hughley also complained about the violation of his

right to equal protection, but he failed to allege sufficient facts from which to

plausibly infer that the discrimination was intentional, see Williams v. Consol. City

of Jacksonville, 341 F.3d 1261, 1268 (11th Cir. 2003). Hughley’s conclusory

allegation that he lost “his position as magistrate judge because he is an African-

American man,” in the words of the district court, “lack[ed] sufficient detail to

support a reasonable inference that individual members [who made the decision]

possessed the requisite intent to discriminate against [Hughley] because of his

race.”

         We AFFIRM the dismissal of Hughley’s amended complaint.




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