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                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT

                          ________________________

                                No. 12-12126
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 1:07-cv-00202-WLS

EARLENE HOLMES,

                                                       Plaintiff-Appellant,

                                    versus

STATE OF GEORGIA,
on behalf of Governor,
DON STRICKLAND,
CHRISTA COURSON,
SHAWN CORLEY,
COMMISSIONER,

                                                       Defendants-Appellees,

ROBERT COOLEY,
                                                       Defendant.


                         __________________________

                 Appeal from the United States District Court
                     for the Middle District of Georgia
                       _________________________
                             (January 15, 2013)
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Before TJOFLAT, MARCHS and KRAVITCH, Circuit Judges.

PER CURIAM:

        After Earlene Holmes, a black employee of the Georgia Department of

Corrections (“DOC”), was discharged due to poor work performance, she sued the

DOC (and several of its employees) under Title VII of the Civil Rights Act (“Title

VII”), 42 U.S.C. §§ 1981 and 1983 (for the denial of her Fourteenth Amendment

right to equal protection of the law), the Equal Pay Act (“EPA”), the Family

Medical Leave Act (“FMLA”), and the Georgia Whistleblower Act. All of these

claims were based, at least in part, on allegations of race and gender

discrimination; her discharge was in retaliation for her engaging in legally

protected activity. The District Court granted the defendants summary judgment,

and she now appeals. We affirm.

         In her brief on appeal, Holmes argues that the District Court erred (1) in

denying her motion for appointment of counsel; (2) in granting the defendants

summary judgment on her race discrimination and retaliation claims under Title

VII; and (3) in determining that qualified immunity barred her claims (against the

employee defendants) of race discrimination and retaliation under §§ 1981 and

1983.




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      As an initial matter, we hold that Holmes has abandoned any claims (1)

under the EPA, FMLA, the Fourteenth Amendment, and Georgia Whistleblower

Act, (2) of hostile work environment, or (3) of gender discrimination because she

has not presented these claims in her brief. See Timson v. Sampson, 518 F.3d

870, 874 (11th Cir. 2008) (“[I]ssues not briefed on appeal by a pro se litigant are

deemed abandoned.”). Moreover, we will not review any argument she makes

with respect to the Georgia Department of Labor’s findings because the findings

were not presented to the District Court. Access Now, Inc. v. Southwest Airlines

Co., 385 F.3d 1324, 1331-32 (11th Cir. 2004).

                            I. Appointment of Counsel

      We review the District Court’s denial of the appointment of counsel for

abuse of discretion. See Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999)

(addressing the district court’s denial of a motion for appointment of counsel in a

§ 1983 action). In deciding whether to appoint counsel, a district court “has broad

discretion . . . and should appoint counsel only in exceptional circumstances.”

Bass, 170 F.3d at 1320. The following factors may be considered when

determining whether “exceptional circumstances” exist: (1) the type and

complexity of the case; (2) whether the indigent requesting the appointment is

capable of adequately presenting her case; (3) whether the indigent is in a position

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to adequately investigate the case; and (4) whether the evidence will consist in

large part of incidents the indigent witnessed herself. Fowler v. Jones, 899 F.2d

1088, 1096 (11th Cir. 1990).

      We find no abuse of discretion here. This case presented no exceptional

circumstances. The issues were straightforward, and Holmes had personal

knowledge of the facts underlying her allegations. See Fowler, 899 F.2d at 1096

(finding no exceptional circumstances where the claims are relatively

straightforward and based on incidents personally experienced by the plaintiff, and

where the plaintiff was capable of adequately representing himself in the matter).

                                    II. Title VII

      We review a district court’s grant of summary judgment de novo. Holloman

v. Mail-Well Corp., 443 F.3d 832, 836 (11th Cir. 2006). Summary judgment is

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

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

as a matter of law. Fed. R. Civ. P. 56(a); Holloman, 443 F.3d at 836.

      Title VII makes it unlawful for an employer “to . . . discharge any

individual, or otherwise discriminate against any individual with respect to [her]

compensation, terms, conditions, or privileges of employment, because of such an

individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1). An individual is not an

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employer as defined by Title VII; therefore, relief under Title VII is available only

against the employer and not against individual employees, here the DOC

employees Holmes sued. Dearth v. Collins, 441 F.3d 931, 933 (11th Cir. 2006).

      Holmes does not allege that she presented direct evidence of discrimination

to the District Court. Rather, she relied on circumstantial evidence to prove intent

to discriminate. We therefore consider her allegations under the model of proof

set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct.

1817, 1824-25, 36 L.Ed.2d 668 (1973). Maynard v. Bd. of Regents of the Div. of

Univs. of the Fla. Dep’t of Educ., 342 F.3d 1281, 1289 (11th Cir. 2003)

(addressing race discrimination under Title VII). To prevail on a

race-discrimination claim based on circumstantial evidence, a plaintiff establishes

a prima facie case by showing that she was: (1) a member of a protected class;

(2) qualified for her current position; (3) subject to an adverse employment action;

and (4) either replaced by someone outside the protected group or treated less

favorably than any similarly situated employee outside her protected group. Id.

      Under McDonnell Douglas, if the plaintiff establishes a prima facie case,

the burden shifts to the employer to articulate a legitimate, nondiscriminatory

reason for its action. If it does so, the plaintiff, to prevail, must demonstrate that

the employer’s proffered reason is merely pretextual. McDonnell Douglas, 411

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U.S. at 802, 804, 93 S.Ct. at 1824–25. That is, the plaintiff must demonstrate

“such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for its action that a

reasonable factfinder could find them unworthy of credence.” Jackson v. Ala.

State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005). In reviewing a

judgment adverse to the plaintiff in a Title VII case, we are mindful that we do not

sit as a “super personnel department”; we will not second-guess the business

judgment of the employer. Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th

Cir. 2000) (citations omitted) (en banc). Indeed, we are “not in the business of

adjudging whether employment decisions are prudent or fair. Instead, our sole

concern is whether unlawful discriminatory animus motivates a challenged

employment decision.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d

1354, 1361 (11th Cir.1999). As such, the inquiry into whether an employer’s

proffered reasons were pretexts centers on the employer’s beliefs, not the beliefs

of the employee. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1266

(11th Cir. 2010).

      A retaliation claim based on circumstantial evidence is also analyzed

according to the burden-shifting McDonnell Douglas framework. See Goldsmith

v. City of Artmore, 996 F.2d 1155, 1162-63 (11th Cir. 1993). To prevail, the

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plaintiff must establish a prima facie case by showing (1) statutorily protected

expression, (2) adverse employment action, and (3) a causal link between the

protected expression and the adverse action. Id. at 1163. If the plaintiff

establishes a prima facie case, and the employer proffers a legitimate,

nondiscriminatory reason for its action, the plaintiff must then show that the

reason is a pretext for retaliation. Id.

       We conclude that summary judgment was appropriate with respect to the

Title VII claims. The individual defendants are not liable under Title VII because

they were not Holmes’s employer. See Dearth, 441 F.3d at 933. The State of

Georgia, which includes the DOC, however, is subject to Title VII since it was her

employer. See id.

       Even if Holmes could establish a prima facie case of race discrimination,

the DOC presented a legitimate, nondiscriminatory reason for its action, and

Holmes presented no evidence to show that such reason was pretextual. Holmes

was terminated due to poor work performance, a decision fully supported by DOC

documents. This evidence showed that Holmes failed to pull enough food for the

detainees, follow instructions regarding an email about high food costs, follow the

work schedule, complete paperwork, and present the Daily Food Packets to her

supervisor for review. She was suspended twice before eventually being

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terminated based on continued poor work performance. In short, she failed to

demonstrate that the DOC’s legitimate, nondiscriminatory reason for her

termination was a pretext for racial discrimination.

                          III. 42 U.S.C. §§ 1981 and 1983

      The District Court held that the individual defendants were entitled to

qualified immunity on the claims brought under § 1981 and 1983. We review its

decision de novo. Hoyt v. Hooks, 672 F.3d 972, 977 (11th Cir. 2012). Qualified

immunity protects government officials performing discretionary functions from

liability in their individual capacity if their conduct “does not violate clearly

established statutory or constitutional rights of which a reasonable person would

have known.” Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 2515, 153

L.Ed.2d 666 (2002) (quotation omitted). Regarding discretionary functions, the

inquiry concerns whether the acts in question are of a type that fell within the

defendant’s job responsibilities, and asks whether the defendant was performing a

legitimate job-related function through means that were within his or her power to

utilize. Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265-66 (11th Cir.

2004). Once a defendant establishes this, the plaintiff has the burden of

establishing that qualified immunity is not appropriate. Vinyard v. Wilson, 311

F.3d 1340, 1346 (11th Cir. 2002). She must show (1) that the defendant infringed

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a right protected by a statute or the constitution, and (2) that such right was clearly

established at the time of the alleged violation. Holloman, 370 F.3d at 1264.

        The record supports the District Court’s determination that the individual

defendants were entitled to qualified immunity. They were all DOC officials; they

were acted within their discretion when they suspended Holmes and subsequently

fired her because they were performing legitimate job-related functions as her

superiors. Holloman, 370 F.3d at 1265-66. Moreover, their behavior did “not

violate clearly established statutory or constitutional rights of which a reasonable

person would have known.” Hope, 536 U.S. at 739, 122 S.Ct. at 2515. Further,

Holmes failed to establish that the defendants violated any constitutional right

against racial discrimination under § 1981 or § 1983. Holloman, 370 F.3d at

1264. As discussed above, evidence demonstrates that Holmes was fired due to

her poor work performance, and that her termination was not motivated by her

race.

        For the foregoing reasons, the judgement of the District Court is

        AFFIRMED.




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