                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                 FILED
                                                       U.S. COURT OF APPEALS
                             No. 09-16139                ELEVENTH CIRCUIT
                                                             JUNE 30, 2010
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________
                                                               CLERK

                 D. C. Docket No. 07-01445-CV-T-30-TGW

MOHAN THAMPI,


                                                           Plaintiff-Appellant,

                                  versus

MANATEE COUNTY BOARD OF COMMISSIONERS,
as the body corporate governing Manatee County,

                                                          Defendant-Appellee.


                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                     _________________________

                              (June 30, 2010)

Before BLACK, PRYOR and FAY, Circuit Judges.

PER CURIAM:
       Mohan Thampi appeals the magistrate judge’s grant of summary judgment

in favor of Manatee County Board of Commissioners (“Manatee”).1 Thampi

argues that the magistrate erred by (1) finding that he failed to properly plead his

claim that Manatee retaliated against him for filing the instant lawsuit, (2) finding

that being listed as a potential witness in an internal discrimination investigation

did not constitute speech protected by the First Amendment or activity protected

by Title VII’s opposition clause, and (3) failing to recuse himself pursuant to 28

U.S.C. § 455. For the reasons set forth below, we affirm.

                                                  I.

       Thampi, who was employed as Manatee’s Projects and Engineering

Manager, was terminated on February 12, 2007, by his supervisor, Tim Hochuli.

Thampi filed a third amended complaint against Manatee, asserting a procedural

due process claim (“Count 1”), a First Amendment retaliation claim (“Count 2”),

and a Title VII retaliation claim (“Count 3”). Counts 2 and 3 were based on

Thampi’s allegation that he was terminated because he was listed as a witness in an

internal discrimination complaint filed by a former co-worker, Delores Crockett.

Thampi also alleged that, “in further retaliation for . . . exercis[ing] his First

Amendment rights for being a witness . . . [Manatee] used derogatory, false, and/or



       1
           The parties consented to have all dispositive motions resolved by a magistrate judge.

                                                   2
distorted information designed to derail [his] job offer with Sarasota County.” In

response to a motion for summary judgment filed by Manatee, the magistrate

dismissed Count 1.

      Thampi filed a motion to compel discovery, asserting that Manatee had

failed to respond to his discovery requests and engaged in an ex parte

communication with the magistrate’s law clerk. At a case management conference,

the magistrate stated that communications with a law clerk do not “mean

anything,” and that “the only thing that counts” was a written order. Thampi’s

counsel requested an additional 90 days to file amendments to the pleadings, which

the magistrate granted after stating that he “d[id not] care” that Thampi should

have received discovery earlier. The magistrate also granted, in part, Thampi’s

motion to compel discovery.

      Manatee filed a motion for summary judgment with respect to Counts 2 and

3 of Thampi’s third amended complaint. Manatee argued that simply being listed

as a possible witness on an internal complaint did not constitute “speech” for First

Amendment purposes or “opposition” under Title VII. Manatee acknowledged

that it provided reference information to Sarasota County (“Sarasota”), but it

contended that the two employees who served as references for Thampi had no

knowledge of Thampi’s lawsuit when they provided the references, and it provided



                                          3
Thampi’s personnel records in response to a public records request.

      The evidence showed that Thampi was listed as a witness in a January 19,

2007, internal discrimination complaint that Crockett had filed against Hochuli. A

February 2, 2007, notice sent to Hochuli stated that an employee in his department

had filed a complaint of illegal harassment or discrimination, but did not identify

the complainant or any witnesses. On March 1, 2007, Thampi provided a

statement to Manatee’s human resources investigators in connection with the

Crockett investigation.

      Thampi stated that Crockett informed him around January 4, 2007, that she

had listed him as a witness in her discrimination complaint against Hochuli.

Thampi told Crockett “try to leave me out of this,” although he subsequently

agreed to allow Crockett to list him as a witness. Hochuli stated that he had never

seen Crockett’s complaint, but he received a final report, which contained a list of

witnesses, including Thampi. Dale Garcia, Manatee’s Senior Human Resources

Manager, never informed Hochuli who Crockett had listed as a witness in her

complaint, and Garry Dye, Manatee’s Director of Human Resources, never

discussed Crockett’s complaint with anyone outside of human resources.

      Dan Gray and John Zimmerman stated that Jody Kirkman, an employee of

Sarasota, called them in September 2007, because Thampi had listed them as



                                          4
professional references. When they spoke with Kirkman, neither Gray nor

Zimmerman were aware that Thampi had filed a lawsuit against Manatee.

Kirkman stated that he obtained Thampi’s personnel files from Manatee and

recalled seeing a “Google search” printout that referenced a lawsuit Thampi had

filed against Manatee. Kirkman did not know whether the Google search was

conducted by Manatee’s or Sarasota’s human resources department.

      Thampi filed a motion for partial summary judgment, arguing that his

“participation as a witness” in the Crockett investigation constituted “speech”

protected by the First Amendment. Thampi stated that his speech involved a

matter of public concern, because it involved racial discrimination by a

governmental body. Thampi contended that a causal connection between his being

listed as a witness and his termination was established by temporal proximity and

the fact that Manatee’s human resources employees knew about his status as a

witness in the Crockett complaint. Thampi contended that Manatee took adverse

employment actions against him because he served as a witness in the Crockett

investigation, filed an EEOC charge, and filed the instant lawsuit.

      The magistrate granted Manatee’s motion for summary judgment. The

magistrate found that Thampi did not engage in speech protected by the First

Amendment because Thampi did not intend to speak when his name was placed on



                                          5
Crockett’s internal complaint form. He noted that, even if Thampi did speak, the

speech was not “on a matter of public concern.” The magistrate also pointed out

that there was no evidence that Hochuli was aware of Thampi’s connection to

Crockett’s complaint when Thampi was terminated.

      The magistrate noted that Thampi mentioned in his response to Manatee’s

motion for summary judgment that Manatee retaliated against him for filing the

instant lawsuit; however, he declined to consider this claim, because it was not set

forth in Thampi’s third amended complaint and, therefore, was not properly pled.

Based on these findings, the magistrate dismissed Count 2 of Thampi’s third

amended complaint.

      With respect to Thampi’s Title VII retaliation claim, the magistrate found

that simply being listed as a witness in Crockett’s discrimination complaint did not

fall within the scope of Title VII’s opposition clause. The magistrate further found

that Thampi failed to show a causal connection between his termination and his

being listed as a witness, because there was no evidence that Hochuli was aware of

Thampi’s status as a witness when he terminated Thampi. The magistrate again

noted that Thampi abandoned any claim that Manatee retaliated against him based

on the filing of the instant lawsuit, because he failed to raise this claim in his third

amended complaint. Accordingly, the magistrate granted Manatee’s motion for



                                            6
summary judgment and dismissed Counts II and III of Thampi’s third amended

complaint.

                                          II.

      A.     Retaliation Claims Based on the Filing of the Instant Lawsuit

      “[We] review[] a district court’s grant of summary judgment de novo.”

Galvez v. Bruce, 552 F.3d 1238, 1241 (11th Cir. 2008). “Summary judgment is

appropriate when the evidence, viewed in the light most favorable to the

nonmoving party, presents no genuine issue of fact and compels judgment as a

matter of law.” Swisher Intern., Inc. v. Schafer, 550 F.3d 1046, 1050 (11th Cir.

2008), cert. denied, 130 S.Ct. 71 (2009); Fed.R.Civ.P. 56(c).

      “A pleading that states a claim for relief must contain . . . a short and plain

statement of the claim showing that the pleader is entitled to relief,” and “[e]ach

allegation must be simple, concise, and direct.” Fed.R.Civ.P. 8(a)(2), (d)(1).

Recently, we have recognized a tightening of liberal pleading standards, such that

“a complaint must now contain sufficient factual matter, accepted as true, to ‘state

a claim to relief that is plausible on its face.’” American Dental Ass’n v. Cigna

Corp., No. 09-12033, manuscript op. at 10 (11th Cir. May 14, 2010), quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d

929 (2007); compare Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct.



                                           7
992, 998, 152 L.Ed.2d 1 (2002) ( finding that the petitioner’s complaint satisfied

Rule 8(a)’s pleading requirements “because it g[ave] respondent fair notice of the

basis for petitioner’s claims”). However, even the liberal pleading standard set

forth in Swierkiewicz “does not afford plaintiffs with an opportunity to raise new

claims at the summary judgment stage.” Gilmour v. Gates, McDonald and Co.,

382 F.3d 1312, 1314 (11th Cir. 2004). “A plaintiff may not amend her complaint

through argument in a brief opposing summary judgment.” Id. at 1315.

      A review of Thampi’s third amended complaint shows that Thampi failed to

allege retaliation based on the filing of his lawsuit. In fact, Thampi alleged in his

third amended complaint that Manatee provided false and damaging information to

Sarasota in retaliation “for being a witness.” If Thampi believed that Manatee had

provided this information in retaliation for filing his lawsuit, he could have

included this in the third amended complaint. Thampi’s third amended complaint

fails to satisfy even the liberal pleading requirement of Swierkiewicz, because it

fails to give Manatee any notice that Thampi will be pursuing a claim of retaliation

based on the filing of the lawsuit. See Swierkiewicz, 534 U.S. at 514, 122 S.Ct. at

998. Even Thampi’s motion for leave to file his third amended complaint contains

no mention of retaliation based on the filing of the instant lawsuit. Furthermore,

although Thampi raised the issue in his memorandum of law in support of his



                                           8
motion for summary judgment, new claims may not be raised at the summary

judgment stage, unless the plaintiff seeks to amend his complaint in accordance

with Rule 15(a). See Gilmour, 382 F.3d at 1314-1315. Thampi contends that the

district court should have allowed him to pursue his claims of retaliation based on

the filing of the lawsuit, because Manatee responded to the merits of the claims.

However, Thampi cites no case law in support of this assertion, and Gilmour

specifically provides that plaintiffs may not raise new claims at the summary

judgment stage. See Gilmour, 382 F.3d at 1314-15. Accordingly, because Thampi

never amended his complaint to include a claim of retaliation based on the filing of

his lawsuit, such a claim was not properly pled, and the magistrate did not err in

granting summary judgment in favor of Manatee on this claim.

      B.     Retaliation Claims Based on Thampi Being Listed as a Witness

      As an initial matter, Thampi’s argument focuses on whether his being listed

as a witness in Crockett’s complaint constituted protected speech under the First

Amendment or protected conduct under Title VII. Thampi fails to argue and,

therefore, has abandoned any argument, that he was retaliated against based on the

actual statements he provided to investigators in March 2007. See Davis v.

Coca-Cola Bottling Co. Consol., 516 F.3d 955, 972 (11th Cir. 2008) (“It is well

settled in this circuit that an argument not included in the appellant’s opening brief



                                           9
is deemed abandoned”). Thampi has also abandoned any claim that his being listed

as a witness in Crockett’s internal complaint constitutes protected activity under

Title VII’s participation clause. See Davis, 516 F.3d at 572.

             i.     First Amendment Retaliation

      To prevail on a First Amendment retaliation claim, “a plaintiff must

establish first, that his speech or act was constitutionally protected; second, that the

defendant’s retaliatory conduct adversely affected the protected speech; and third,

that there is a causal connection between the retaliatory actions and the adverse

effect on speech.” Bennett v. Hendrix, 423 F.3d 1247, 1250 (11th Cir. 2005). For

an employee’s speech to warrant First Amendment protection, “the employee must

have (1) spoken as a citizen and (2) addressed matters of public concern.” Boyce v.

Andrew, 510 F.3d 1333, 1341 (11th Cir. 2007). “Deciding whether a government

employee’s speech relates to his or her job as opposed to an issue of public concern

must be determined by the content, form, and context of a given statement.” Id. at

1343 (quotation omitted). We have held that, where an employee’s concerns about

sexual harassment focused on the conditions of her own employment and were not

spoken in public, but instead, were made in the form of a complaint to an official

body, the speech was not a matter of public concern. See Morgan v. Ford, 6 F.3d

750, 755 (11th Cir. 1993).



                                           10
      Thampi’s being listed as a witness in Crockett’s complaint does not

constitute speech protected by the First Amendment for two reasons. First, Thampi

did not “speak” on any matter. When he was informed that Crockett had listed him

as a witness, Thampi did not express any opinion on the merits of Crockett’s

complaint or indicate what he would tell investigators. In fact, he initially asked

Crockett to “leave [him] out of this.” Second, even if simply being listed as a

witness constituted “speech,” it is impossible to say that the speech was on an issue

of public concern. Boyce instructs courts to examine the content, form, and context

of a given statement to determine if the speech involves an issue of public concern.

See Boyce, 510 F.3d at 1343. Here, there is no content, form, or context to

examine, because Thampi had not spoken at the time that he was terminated. Even

if one could assume that Thampi would testify in Crockett’s favor, the testimony

would be given in private and would focus on a co-worker’s conditions of

employment. Thus, the speech would not involve a matter of public concern. See

Morgan, 6 F.3d at 755.

      Thampi would not be entitled to relief on his First Amendment retaliation

claim, even if his being listed as a witness constituted speech protected by the First

Amendment, because he failed to show that he was terminated in retaliation for his

willingness to serve as a witness in the Crockett investigation. See Bennett, 423



                                          11
F.3d at 1250. In his deposition, Hochuli stated that he had never seen Crockett’s

complaint, although he received a final report containing a list of witnesses. This

final report would not have been compiled until well after Thampi was terminated,

as the investigation into the complaint continued at least through March 2007,

when Thampi was interviewed by investigators. Furthermore, Garcia and Dye

both stated that they never informed Hochuli of the identity of the witnesses listed

in the Crockett complaint. Thampi cites no evidence rebutting these statements.

Accordingly, because Thampi’s being listed as a witness does not appear to

constitute “speech” protected by the First Amendment, and because Thampi failed

to establish a causal connection between his being listed as a witness and his

termination, the magistrate did not err in granting Manatee’s motion for summary

judgment on Thampi’s First Amendment retaliation claim. See Bennett, 423 F.3d

at 1250.

             ii.    Title VII’s Opposition Clause

      Under Title VII’s opposition clause, an employer may not retaliate against

an employee because the employee has opposed an unlawful employment practice.

EEOC v. Total Sys. Serv., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000); see 42

U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation under Title VII,

a plaintiff may show that: (1) he participated in an activity protected by Title VII;



                                          12
(2) he suffered an adverse employment action; and (3) there was a causal

connection between the participation in the protected activity and the adverse

employment decision. Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008).

“To establish a causal connection, a plaintiff must show that the decision-makers

were aware of the protected conduct, and that the protected activity and the adverse

actions were not wholly unrelated.” Shannon v. BellSouth Telecomm., Inc., 292

F.3d 712, 716 (11th Cir. 2002). Close proximity in time between the protected

activity and the adverse employment action “is insufficient to create a genuine

issue of fact as to causal connection when there is unrebutted evidence that the

decision-maker did not have knowledge that the employee engaged in protected

conduct.” Brungart v. BellSouth Telecomm., Inc., 231 F.3d 791, 799 (11th Cir.

2000).

         Manatee does not dispute that Thampi’s termination constituted an adverse

employment action. However, Thampi has not engaged in activity protected by

Title VII’s opposition clause. Thampi at first protested being listed as a witness,

asking Crockett to “try to leave [him] out of this,” although he eventually agreed to

the listing. Furthermore, there is no evidence that Thampi, at any time prior to his

termination, told Crockett or any other Manatee employee the nature of his

proposed testimony. Although “opposition” does not require “active, consistent



                                          13
behavior,” it requires at least the disclosure of an individual’s position or opinion

on a matter. Crawford v. Metro. Gov’t of Nashville and Davidson County, 555

U.S. __, 129 S.Ct. 846, 851, 172 L.Ed.2d 650 (2009) (holding that “‘[o]ppose’

goes beyond ‘active, consistent’ behavior” and includes instances in which an

individual “has taken no action at all to advance a position beyond disclosing it”)

(emphasis added). Thus, simply being listed as a witness on an internal complaint

form, without actively volunteering to serve as a witness or offering some

indication of the nature of the proposed testimony does not constitute “opposition”

under Title VII.

      Nevertheless, even if Thampi’s being listed as a witness on Crockett’s

complaint constituted “opposition,” he has failed to establish a prima facie case of

retaliation, because he failed to show a causal connection between his being listed

as a witness and his termination. See Crawford, 529 F.3d at 970. Although

Thampi was terminated only weeks after he was listed as a witness, he presented

no evidence establishing that Hochuli knew, when he terminated Thampi, that

Thampi was listed as a witness in Crockett’s complaint. See Shannon, 292 F.3d at

716; Brungart, 231 F.3d at 799. As discussed above, all of the evidence submitted

to the magistrate indicates that Hochuli was unaware that Thampi was listed as a

witness at the time he terminated Thampi. Because Thampi has failed to show a



                                           14
causal connection between his being listed as a witness in Crockett’s complaint and

his termination, he failed to establish a prima facie case of retaliation under Title

VII. Accordingly, the magistrate did not err in granting summary judgment in

favor of Manatee on this claim.

      C.     Magistrate’s Failure to Recuse

      Generally, we review a magistrate’s decision not to recuse himself under 28

U.S.C. § 455 for an abuse of discretion. Thomas v. Tenneco Packaging Co., Inc.,

293 F.3d 1306, 1319-20 (11th Cir. 2002). However, where a party fails to seek

recusal of the magistrate in the district court, we review the magistrate’s decision

not to recuse himself for plain error. Hamm v. Members of Bd. of Regents of State

of Fla., 708 F.2d 647, 651 (11th Cir. 1983). Under plain error review, the party

raising the issue has the burden to show that (1) there is error (2) that is plain (3)

that affects a defendant’s substantial rights and (4) “not correcting the error would

seriously affect the fairness of the judicial proceeding.” Farley v. Nationwide Mut.

Ins. Co., 197 F.3d 1322, 1329 (11th Cir. 1999).

      Under 28 U.S.C. § 455, a magistrate should disqualify himself if his

“impartiality might reasonably be questioned,” or if the magistrate “has a personal

bias or prejudice concerning a party.” 28 U.S.C. § 455(a), (b)(1). “The general

rule is that bias sufficient to disqualify a judge must stem from extrajudicial



                                           15
sources . . . and must be focused against a party to the proceeding.” Hamm, 708

F.2d at 651. “An exception to that rule is made when a judge’s remarks in a

judicial context demonstrate such pervasive bias and prejudice that it constitutes

bias against a party.” Id. “Neither a trial judge’s comments on lack of evidence,

rulings adverse to a party, nor friction between the court and counsel constitute

pervasive bias.” Id.

      As an initial matter, because Thampi did not seek recusal of the magistrate

judge, we review Thampi’s bias argument for plain error. See Hamm, 708 F.2d at

651. Thampi’s claims of bias rest upon (1) Manatee’s ex parte communication

with the magistrate’s law clerk, and (2) the magistrate’s “hostile” statements made

at the case management conference. Thampi’s claims fail for several reasons.

First, Thampi cites no binding case law providing that a magistrate must recuse

himself if one party engages in an ex parte communication with the magistrate’s

law clerk. See United States v. LeCroy, 441 F.3d 914, 930-31 (11th Cir. 2006)

(providing that an error is not plain if there is no relevant case law). Second, the

magistrate’s comments at the case management conference did not “demonstrate

. . . pervasive bias and prejudice.” See Hamm, 708 F.2d at 651. Thampi cites two

instances in which the court responded “I don’t care” and “I don’t really care”

when his attorney stated that he had been put at a disadvantage. However, two



                                          16
comments demonstrating “friction between the court and counsel” do not constitute

“pervasive bias.” See id. Finally, Thampi failed to show that either of the two

alleged errors affected his substantial rights. See Farley, 197 F.3d at 1329. The

magistrate’s comments at the case management conference were made in response

to Thampi’s request for a 90-day extension of the period in which to file

amendments. Ultimately, the magistrate granted this request. The magistrate also

granted, in part, Thampi’s motion to compel discovery, ordering that Manatee

provide the discovery Thampi had requested. Thampi does not allege that he was

prejudiced by any of the magistrate’s rulings. Accordingly, the magistrate did not

plainly err in failing to recuse himself, and we affirm the grant of summary

judgment in Manatee’s favor.

      AFFIRMED.




                                         17
