FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOV 15, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-12387

Non-Argument Calendar

________________________

D. C. Docket No. 04-01951-CV-MHS-1

WANDA SPANN, 

Plaintiff-Appellant, 

versus 

COBB COUNTY PRETRIAL COURT SERVICES AGENCY, 

COBB COUNTY JUDICIAL CIRCUIT, et al., 

Defendants-Appellees. 

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(November 15, 2006)

Before ANDERSON, BIRCH and BLACK, Circuit Judges.

PER CURIAM:
 Although Spann argues in her reply brief the district court erred in deciding the issue of 1

retaliation, Spann waived this argument by failing to raise the issue in her initial brief. United

States v. Dicter, 198 F.3d 1284, 1289 (11th Cir. 1999) (issues raised for the first time in a reply

brief are deemed waived). Additionally, because Cobb County was the prevailing party, the

district court did not err in awarding costs under Fed. R. Civ. P. 54(d)(1). 

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Wanda Spann, an African-American female appearing pro se, appeals the

district court’s dismissal of the Cobb County Superior Court Judges Council

(Judges Council), the Cobb County Pretrial Court Services Agency (Cobb County

PCS), and Chief Magistrate Judge Frank Cox as defendants from her action

alleging racial discrimination in violation of Title VII of the Civil Rights Acts of

1964 (Title VII), 42 U.S.C. § 2000e-2. Spann also appeals the district court’s grant

of summary judgment to Cobb County, asserting she presented evidence the

proffered reasons for her termination were pretextual. The district court did not 1

err, and we affirm. 

I. DISCUSSION

A. Cobb County PCS, Judge Cox, and Judges Council

“We review de novo the district court’s grant of a motion to dismiss under

[Federal Rule of Civil Procedure] 12(b)(6) for failure to state a claim, accepting the

allegations in the complaint as true and construing them in the light most favorable

to the plaintiff.” Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003). “A dismissal

for failure to state a claim is erroneous unless it appears beyond doubt that the
 We review de novo a district court’s grant of summary judgment and view all facts in

2

the light most favorable to the non-moving party. Pipkins v. City of Temple Terrace, Fla., 267

F.3d 1197, 1199 (11th Cir. 2001). “Summary judgment is only proper if there are no genuine

disputed issues of material fact, and the moving party is entitled to judgment as a matter of law.” 

Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1311 (11th Cir. 2001). 

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plaintiff can prove no set of facts in support of his claim which would entitle him

to relief.” Cryder v. Oxendine, 24 F.3d 175, 176 (11th Cir. 1994) (quotations and

citation omitted). “Under 12(b)(6), whether a plaintiff failed to state a claim upon

which relief can be granted must be ascertained from the face of the complaint.” 

Garcia v. Copenhaver, Bell & Assocs., M.D.’s P.A., 104 F.3d 1256, 1266 n.11

(11th Cir. 1997). 

 The district court considered an affidavit outside of the complaint when

granting the Judges Council’s motion to dismiss, thus, we will construe the Judges

Council’s motion to dismiss as a converted motion for summary judgment. See 2

Trademark Ins. Co. v. ESLU, Inc., 299 F.3d 1265, 1267 (11th Cir. 2002). We note

the magistrate judge gave Spann sufficient notice the motion would be taken under

advisement and informed Spann of the appropriate materials to file in opposition. 

See Massey v. Congress Life Ins. Co., 116 F.3d 1414, 1417 (11th Cir. 1997). 

Under Title VII, it is unlawful “for an employer to fail or refuse to hire or to

discharge any individual, or otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges of employment,
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because of such individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1) (emphasis

added). “Individual capacity suits under Title VII are . . . inappropriate.” Busby v.

City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991). 

The district court did not err in dismissing the suit against Judge Cox in his

unofficial capacity because Title VII does not provide relief against individuals.

Busby, 931 F.2d at 772. Additionally, Spann stated she was “employed by Cobb

County Government.” At no time in her complaint did she allege she was ever

employed by Judge Cox, Cobb County PCS, or the Judges Council. Accordingly,

the district court did not err in dismissing Judge Cox, Cobb County PCS, or the

Judges Council as defendants. 

B. Cobb County 

Where a plaintiff supports her Title VII claim with circumstantial evidence,

this Court analyzes her claim using the framework set forth in McDonnell Douglas

Corp. v. Green, 93 S. Ct. 1817 (1973). Wilson v. B/E Aerospace, Inc., 376 F.3d

1079, 1087 (11th Cir. 2004). Under the McDonnell Douglas framework, the

plaintiff must first establish a prima facie case of discrimination, which creates a

presumption of discrimination. Wilson, 376 F.3d at 1087. Once the plaintiff

establishes a prima facie case, the employer then has the burden of production to

establish a legitimate, nondiscriminatory reason for its actions. Id. If the employer
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satisfies its burden, thus rebutting the presumption of discrimination, the plaintiff

must then demonstrate the employer’s reason is a pretext for discrimination. Id.

To establish pretext, a “plaintiff must demonstrate that the proffered reason

was not the true reason for the employment decision . . . . [The plaintiff] may

succeed in this either directly by persuading the court that a discriminatory reason

more likely motivated the employer or indirectly by showing that the employer’s

proffered explanation is unworthy of credence.” Jackson v. State of Ala. State

Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005) (quotations and citation

omitted). “Conclusory allegations of discrimination, without more, are not

sufficient to raise an inference of pretext or intentional discrimination where [an

employer] has offered . . . extensive evidence of legitimate, non-discriminatory

reasons for its actions.” Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376

(11th Cir. 1996) (quotations and citation omitted). When an employer sincerely

believes an employee committed rule infractions or poor performance occurred,

that belief, and thus the legitimate, non-discriminatory reason for termination,

cannot be rebutted by an employee’s argument that the infractions did not occur,

but must be rebutted with evidence the employer’s belief of the occurrences is

insincere or unworthy of credence. See Vessels v. Atlanta Indep. School Sys., 408

F.3d 763, 771 (11th Cir. 2005). 
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The district court found Spann established a prima facie case of

discrimination and Cobb County proffered four reasons for terminating Spann. 

Spann was unable to show at least two of the reasons were pretextual. First, Spann

failed to show the decision to terminate her for failing to turn over personnel

records to the magistrate court administrator was merely a pretext. Spann admitted

in her deposition she “understood fully” the instructions contained in a March 5,

2003, memorandum from Judge Cox instructing her to turn all personnel files over

immediately to the magistrate court administrator. After receiving the memo,

Spann removed the personnel files from the Cobb County PCS office and placed

them in her home, in direct contravention of Judge Cox’s instructions. Second,

Spann committed yet another act of insubordination by firing an employee without

Judge Cox’s permission. Spann fails to show why terminating her for this reason

is merely pretext. Instead, Spann asserts “Cox put both Plaintiff and [the fired

employee] in a no-win situation. Judge Cox set [the fired employee] up to be fired

as a means of cornering the Plaintiff.” This conclusory allegation is not enough to

show pretext. 

Spann’s actions could reasonably be interpreted as insubordination, Cobb

County had a legitimate non-discriminatory reason for terminating Spann. The

district court did not err in granting Cobb County’s motion for summary judgment.
 Spann raises numerous arguments about Judge Cox’s supervisory authority over her. 3

Even if Judge Cox did not have the authority to terminate Spann, this would not afford Spann a

remedy under Title VII. The issue of whether Cox had the authority to terminate Spann falls

outside the scope of the protections of Title VII. Having dismissed all federal claims, the district

court did not err in declining to exercise supplemental jurisdiction for a state cause of action. 

See Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088-89 (11th Cir. 2004).

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II. CONCLUSION

The district court did not err in (1) dismissing the Judges Council, the Cobb

County PCS, or Judge Cox, or (2) granting summary judgment to Cobb County.3

AFFIRMED.