                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT           FILED
                                ________________________ U.S. COURT OF APPEALS
                                                                 ELEVENTH CIRCUIT
                                       No. 10-10954                 APR 7, 2011
                                                                     JOHN LEY
                                   Non-Argument Calendar               CLERK
                                 ________________________

                             D.C. Docket No. 1:08-cv-00670-WSD

JOHNNIE A. HOLLINS,
lllllllllllllllll                                                    Plaintiff-Appellant,

                                            versus

FULTON COUNTY,
SHERIFF THEODORE JACKSON,
in his official capacity as Sheriff,
SHERIFF MYRON E. FREEMAN,
in his individual capacity as Sheriff,
CHIEF EDWARD LONG,
in his official capacity as Chief Deputy,
CHIEF ROLAND LANE, JR.,
in his individual capacity as Chief Deputy,

lllllllllllllllllllll                                            Defendants-Appellees.

                                ________________________

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

                                        (April 7, 2011)
Before CARNES, PRYOR and FAY, Circuit Judges.

PER CURIAM:

       Johnnie A. Hollins, a former Fulton County deputy sergeant, appeals pro se

the district court’s grant of summary judgment on her claims of: (1) age

discrimination, in violation of the Age Discrimination in Employment Act, 29

U.S.C. § 623; (2) disability discrimination, in violation of the Americans with

Disabilities Act, 42 U.S.C. § 12112(a); (3) violations of her due process rights, 42

U.S.C. § 1983; (4) and intentional infliction of emotional distress, in violation of

Georgia state law. The district court granted summary judgment on each of those

claims to Hollins’ former employer, Fulton County, and to Fulton County Sheriff

Myron Freeman and Fulton County Chief Deputy Sheriff Roland Lane, Jr., in their

individual and official capacities. On appeal Hollins contends that the district

court’s resolution of each of her four claims was in error.1

                                                I.

                                               A.

       1
          As an initial matter, Hollins argues for the first time on appeal that the defendants
violated “the Fulton County civil service act of 1982” and that the defendants failed to follow
several of the County’s guidelines and procedures when they terminated her employment.
Because Hollins did not present these issues before the district court, where counsel represented
her, we decline to address them on appeal. See Access Now, Inc. v. Southwest Airlines Co., 385
F.3d 1324, 1331 (11th Cir. 2004) (“This Court has repeatedly held that an issue not raised in the
district court and raised for the first time in an appeal will not be considered by this court.”
(quotation marks omitted)).

                                                2
      Hollins began working as a deputy for the Fulton County Sheriff’s Office in

1988. In 2004 she was promoted to sergeant and was a “sworn peace officer,”

responsible for supervising both deputies and inmates at the Fulton County Jail.

Her job duties in that position were physical. As the district court summarized,

“[s]he was required to be able to restrain inmates, search cells, draw and fire her

weapon, ensure general safety, and otherwise keep order.”

      On June 21, 2006, Hollins was injured in an altercation with an inmate.

Based on the recommendation of her doctor, the County granted her leave until

July 15, 2006, in order to recover. The County later extended that leave until

September 9, 2006. Hollins never returned to work, however, and was

subsequently terminated.

                                       B.

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

Florida, 285 F.3d 1339, 1341 (11th Cir. 2002). Summary judgment is proper

under Federal Rule of Civil Procedure 56 when the pleadings and accompanying

evidence show that there is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett,

477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986). “There is no genuine issue of

material fact if the nonmoving party fails to make a showing sufficient to establish

                                            3
the existence of an element essential to that party’s case and on which the party

will bear the burden of proof at trial.” Jones v. Gerwens, 874 F.2d 1534, 1538

(11th Cir. 1989). In addition, although we read briefs filed by pro se litigants

liberally, see Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008), when a pro

se plaintiff does not raise an issue on appeal, that issue is waived. See Horsley v.

Feldt, 304 F.3d 1125, 1131 n.1 (11th Cir. 2002).

                                         II.

      As for Hollins’ claim of age discrimination, the main evidence she points to

is a statement that Sheriff Freeman allegedly made at a shift-meeting sometime

well before her termination. At that meeting Hollins claims to have overheard him

state that he was going to “get rid of all of you old people who have been here a

long time that don’t want to do your job.” Hollins additionally argues that her age

was a factor in her termination because she was allowed to work each time she

suffered an injury until she reached age 58, when the time she needed for her

injuries to heal began to take longer. Finally, Hollins asserts, without evidence,

that Freeman fired over 200 deputies who were over 45 years old during his 4-year

term as Sheriff.

      “The ADEA makes it ‘unlawful for an employer to fail or refuse to hire or to

discharge any individual or otherwise discriminate against any individual with

                                          4
respect to [her] compensation, terms, conditions, or privileges of employment,

because of such individual’s age.’” Chapman v. AI Transport, 229 F.3d 1012,

1024 (11th Cir. 2000) (en banc) (quoting 29 U.S.C. § 623(a)(1)). A plaintiff may

establish a prima facie case of discrimination through either direct or

circumstantial evidence. Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d

1354, 1358 (11th Cir. 1999).

      For direct evidence, “the evidence must indicate that the complained-of

employment decision was motivated by the decision-maker’s ageism. As a result,

only the most blatant remarks, whose intent could be nothing other than to

discriminate on the basis of age will constitute direct evidence of discrimination.”

Id. at 1358–59 (quotation marks omitted). Where the evidence presented requires

an inference or presumption, the evidence is not direct, but circumstantial. Id. at

1359; see also Burrell v. Bd. of Trs. of Ga. Military Coll., 125 F.3d 1390, 1393–

94 (11th Cir. 1997) (holding that evidence which suggests, but does not prove, a

discriminatory motive is circumstantial evidence by definition).

      We use the McDonnell Douglas2 framework to evaluate ADEA claims

based upon circumstantial evidence. Chapman, 229 F.3d at 1024. Under that

framework, the plaintiff must first prove a prima facie case, and she can do so by


      2
          McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973).

                                               5
showing that she “(1) was a member of the protected age group, (2) was subjected

to adverse employment action, (3) was qualified to do the job, and (4) was

replaced by or otherwise lost a position to a younger individual.” Id.

        Hollins has not demonstrated that the district court erred by granting the

defendants summary judgment on her claim of age discrimination. First, Hollins

has presented no direct evidence of age discrimination. Freeman’s remark is open

to multiple interpretations: it appears to have been aimed at people who were not

performing well on-the-job and would require a variety of inferences or

presumptions before a factfinder could conclude that it amounted to evidence of

an intent to discriminate on the basis of age.

        Second, the circumstantial evidence she offers fails to prove a prima facie

case of age discrimination. While she was a member of a protected age group

when she was terminated, she has failed to show that she was qualified for her

position. Nor has she even argued to this Court that she was replaced by or

otherwise lost a position to a younger individual. See Access Now, 385 F.3d at

1331.

                                          III.

        Hollins also argues that the district court erred in granting summary

judgment in favor of the defendants on her claim for disability discrimination. To

                                           6
support her argument she asserts that the defendants told her that she could not

return to work on a light duty assignment and that she had to have a doctor write

her a note giving her a full medical clearance or she would lose her job.

       “The ADA provides that employers shall not discriminate against qualified

individuals with a disability because of the disability.” Wood v. Green, 323 F.3d

1309, 1312 (11th Cir. 2003) (citing 42 U.S.C. § 12112(a)).3 “Under the

controlling law in this Circuit, the burden-shifting analysis of Title VII

employment discrimination claims is applicable to ADA claims.” Holly v.

Clairson Indus., L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007) (quotation marks

and alteration omitted). To establish a prima facie case of discrimination under

the ADA, a plaintiff may show: (1) she is disabled; (2) she is a qualified

individual; and (3) she was subjected to unlawful discrimination because of her

disability. Id. at 1255–56.

       An individual is disabled if she: (1) has a physical or mental impairment

that substantially limits one or more of her major life activities; (2) has a record of


       3
         All of the conduct alleged in Hollins’ complaint occurred prior to the effective date of
the ADA Amendments Act of 2008 (“ADAAA”), Pub. L. No. 110-325, 122 Stat. 3553 (2008),
which became effective on January 1, 2009. In granting the defendants’ motion for summary
judgment, the district court applied pre-amendment ADA law. We have not addressed in a
published opinion the issue of whether the ADAAA applies retroactively. And because Hollins
does not assert that the district court erred by applying the pre-amendment ADA laws, we do not
address the ADAAA’s potential retroactivity. Horsley, 304 F.3d at 1131 n.1.

                                                7
such an impairment; or (3) is regarded by her employer as having such an

impairment. 42 U.S.C. § 12102(1). We have recognized that an impairment that

substantially impairs a plaintiff’s ability to work is a major life activity. D’Angelo

v. ConAgra Foods, Inc., 422 F.3d 1220, 1226–27 (11th Cir. 2005). But where a

plaintiff alleges that the major life activity impaired is working, the plaintiff must

allege that she is unable to work in a broad class of jobs. Id. at 1227. That is

because “‘[t]he inability to perform a single, particular job does not constitute a

substantial limitation in the major life activity of working.’” Id. (quoting 29

C.F.R. § 1630.2(j)(3)(i)); see also Sutton v. United Air Lines, Inc., 527 U.S. 471,

491, 119 S.Ct. 2139, 2151 (1999) (“When the major life activity under

consideration is that of working, the statutory phrase ‘substantially limits’

requires, at a minimum, that plaintiffs allege they are unable to work in a broad

class of jobs.”) superseded by statute, ADA Amendments Act of 2008, Pub. L. No.

110-325, 122 Stat. 3553.4

      The district court did not err in granting the defendants summary judgment

on Hollins’ claim of disability discrimination. At most she has alleged only that

she could not perform her particular job, not that she could not work in a broad

class of jobs. That is not enough to show that she was “disabled.” See D’Angelo,


      4
          See supra n.3.

                                           8
422 F.3d at 1227. Hollins cannot meet even the first requirement for a prima facie

case of discrimination under the ADA. See Holly, 492 F.3d at 1255–56.

                                          IV.

      Hollins also argues that the district court erred in granting summary

judgment in favor of the defendants on her claims that they violated and conspired

to violate her due process rights under the Fourteenth Amendment. In particular,

Hollins asserts that she presented circumstantial evidence of a due process

violation because she proved that when the defendants disciplined other

employees, they did so through a “progressive discipline” program. She does not

elaborate on that program, but does assert it was not used with her. In support of

that argument, she alleges that during the period that she was injured, the

defendants did not contact her; nor did they conduct an “exit process” after

terminating her.

      Although Hollins’ complaint alleged a violation of her substantive due

process rights, the district court correctly held that such a claim is not a valid

cause of action in this type of case. In McKinney v. Pate, 20 F.3d 1550, 1555

(11th Cir. 1994) (en banc), we held that “in non-legislative cases, only procedural

due process claims are available to pretextually terminated employees.” Id. at

1560. We explained that the distinction between legislative and non-legislative

                                           9
acts was important: in general, non-legislative acts apply to a limited number of

persons and “typically arise from the ministerial or administrative activities of

members of the executive branch.” Id. at 1557 n.9. “The most common examples

are employment terminations.” Id. “Legislative acts, on the other hand, generally

apply to a larger segment of—if not all of—society; laws and broad-ranging

executive regulations are the most common examples.” Id.

       McKinney bars Hollins from bringing a claim for a violation of substantive

due process. To the extent that her brief on appeal could be construed as raising a

procedural due process argument, we decline to address that claim because she did

not present it to the district court.

       As for Hollins’ claim that the defendants conspired to violate her due

process rights, she has alleged at most only a conspiracy between the County and

its employees. But the intracorporate conspiracy doctrine clearly bars that sort of

claim. Under that doctrine, “a corporation’s employees, acting as agents of the

corporation, are deemed incapable of conspiring among themselves or with the

corporation.” Dickerson v. Alachua Cnty. Comm’n, 200 F.3d 761, 767 (11th Cir.

2000). “This doctrine has been applied not only to private corporations but also to

public, government entities.” Id.

                                         V.

                                         10
      As for her state claim for intentional infliction of emotional distress, Hollins

argues that, even though the doctrine of sovereign immunity does protect the

defendants, the defendants have “waived their immunity.” In particular, she

asserts that the defendants have waived their immunity because they terminated

her for “invoking [her] constitutional rights, which violated clearly established

federal law.”

      The district court did not err in granting the defendants summary judgment

on Hollins’ state intentional infliction claim based on the court’s finding that the

defenses of sovereign and official immunity applied. Hollins did not argue before

the district court, where counsel represented her, that the defendants had waived

the defense of sovereign immunity. Nor did she offer any facts demonstrating

waiver. The district court correctly applied sovereign immunity.

      As for the defense of official immunity, because Hollins does not mention

that issue in her original brief on appeal, she has not properly presented any

argument that the defendants Lane and Freeman were not shielded by official

immunity.

      AFFIRMED.




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