FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 19, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-16131

Non-Argument Calendar

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D. C. Docket No. 06-02761-CV-CC-1

LAKEETRA MASON,

Plaintiff-Appellant,

versus

CLAYTON COUNTY BOARD OF EDUCATION,

Defendant,

BARBARA M. PULLIAM,

individually and in her capacity as

Clayton County Schools Superintendent,

DONALD DUNNIGAN,

individually and in his capacity as Clayton

County Schools Director of Certified Personnel,

GARY TOWNSEND,

individually and in his capacity

as Clayton County Schools Principal,

FRANK MCKENZIE,

individually and in his capacity as

Clayton County Schools Assistant Principal,

ANGELA WINDISCH,

individually and in her capacity as Clayton

County Schools Special Education Department Head,
Defendants-Appellees.

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Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(May 19, 2009)

Before CARNES, BARKETT and WILSON, Circuit Judges.

PER CURIAM:

Lakeetra Mason appeals the district court’s dismissal of the Clayton County

Board of Education (“CCBOE”) as a party defendant as well as the court’s grant of

summary judgment as to Mason’s claims of discrimination and due process

violations against the remaining defendants.

Mason asserts that she was a a disabled African-American special education

teacher employed by the CCBOE at Mt. Zion High School from August 2002 to

June 2006. Although Mason raised a myriad of claims in her complaint, we focus

only on the claims Mason has raised on appeal, namely her claims of

(1) procedural due process violations pursuant to 42 U.S.C. § 1983; and (2)

disability discrimination under the Americans with Disabilities Act (“ADA”), 42

U.S.C. § 12112. These claims arose out of the defendants’ refusal to renew

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Mason’s teaching contract, and Mason claims that the defendants’ actions were

based on her disabling eye condition. The district court found that Mason could

not establish a prima facie case of discrimination under the ADA because she was

neither disabled nor a “qualified individual.” The court alternatively found that,

even if Mason could establish a prima facie case of disability discrimination, the

claim would fail as a matter of law because the defendants had legitimate,

nondiscriminatory reasons for disciplining and terminating Mason, and Mason

could not show that those reasons were a pretext for discrimination. The court

found that Mason’s procedural due process claim failed as a matter of law because

she had adequate state remedies that she failed to utilize.

As an initial matter, due to Mason’s failure to comply with a local district

court rule in her counseled response to the defendants’ summary judgment motion,

the district court deemed the defendants’ statement of undisputed facts to be

admitted. Thus, the district court focused “solely on Defendants’ record citations

to determine whether there is a genuine issue for trial.” As Mason does not

challenge this ruling on appeal, we have done the same. See Reese v. Herbert, 527

F.3d 1253, 1268-69 (11th Cir. 2008).

I. Due Process

Mason has raised her substantive due process claim for the first time on

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appeal. Accordingly, she waived that claim by failing to present it to the district

court. See Irving v. Mazda Motor Corp., 136 F.3d 764, 769 (11th Cir. 1998)

(declining to consider an argument the plaintiff failed to raise in the district court).

Therefore, Mason is limited to arguing her procedural due process claim.

To state a claim under § 1983 for denial of procedural due process, an

individual must show “the state refuse[d] to provide a process sufficient to remedy

the procedural deprivation.” Cotton v. Jackson, 216 F.3d 1328, 1330-31 (11th Cir.

2000) (quotation omitted). “This rule . . . recognizes that the state must have the

opportunity to remedy the procedural failings of its subdivisions and agencies in

the appropriate fora-agencies, review boards, and state courts [-] before being

subjected to a claim alleging a procedural due process violation.” Id. at 1331

(quotation omitted).

Under Georgia law, the procedural safeguards of O.C.G.A. § 20-2-940

(including a hearing before the local school board and the reasons for dismissal)

are provided to tenured teachers. O.C.G.A. § 20-2-942(b)(1). Local school boards

have the power to hear and determine “any matter of local controversy in reference

to the construction of or administration of the school law,” which includes hearing

challenges to a decision not to renew a tenured teacher’s contract. O.C.G.A. § 20-

2-1160(a); see Dalton v. City Bd. of Educ. v. Smith, 349 S.E.2d 458, 459 n.1 (Ga.

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1986). Pursuant to Georgia law, when no other specific legal remedy is available

and a party has a clear right to have a certain act performed, a party may seek

mandamus.” Cotton, 216 F.3d at 1332; O.C.G.A. § 9-6-20. See also Dalton City

Bd. of Educ.,349 S.E.2d at 458-59 (reversing an order granting a writ of

mandamus directing a school board to hold a hearing under O.C.G.A. § 20-2-1160

because the petitioners failed to substantiate their claim).

Mason did not create a genuine issue of fact as to whether she was deprived

of her procedural due process rights. Mason failed to utilize the available state

remedies, such as petitioning the CCBOE for a hearing or seeking mandamus

relief. Moreover, Mason’s assertion that she was barred from filing a mandamus

petition against the CCBOE because she had the legal remedy of filing a § 1983

action is without merit because she did not have the remedy of filing a § 1983

action available until she utilized all state remedies.

II. ADA Claim

As an initial matter, while Mason’s argument relating to the ADA contains

one passing reference to the claims she raised in the district court of retaliation and

hostile work environment, such a brief reference, unsupported by any legal

authority, is insufficient, and those claims are deemed abandoned on appeal.

With reference to her ADA discrimination claim, Mason has not established

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that there exists a genuine issue of material fact. Assuming, arguendo, that Mason

established a prima facie case of disability discrimination, she has not challenged

the district court’s alternative finding that she could not show that the defendants’

legitimate, non-discriminatory reasons for disciplining and terminating her were a

pretext for discrimination. Accordingly, we must affirm as to this issue.

Mason also argues that the district court erred in suggesting that the

individual defendants were entitled to qualified immunity from her disability,

retaliation, and harassment claims. We do not reach that issue because Mason has

failed to establish her disability claims and has abandoned her retaliation and

harassment claims as discussed above.

III. Dismissal of CCBOE

This Court “review[s] de novo the district court’s grant of a motion to

dismiss under Rule 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.” Mills v. Foremost, Inc., 511 F.3d 1300, 1303 (11th Cir. 2008). The

capacity to sue or be sued is determined “for all other parties [i.e., those that are

not individuals or corporations], by the law of the state where the court is located,

except that: (A) a partnership or other unincorporated association with no such

capacity under that state’s law may sue or be sued in its common name to enforce a

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substantive right existing under the United States Constitution or laws.”

Fed.R.Civ.P. 17(b). Under Georgia law, “a county board of education, unlike the

school district which it manages, is not a body corporate and does not have the

capacity to sue or be sued.” Cook v. Colquitt County Bd. of Educ., 412 S.E.2d

828, 828 (Ga. 1992). The only exception to this rule occurs when the legislature

creates a school board by an act which gives that board the capacity to sue or be

sued. Id. In Dean v. Barber, 951 F.2d 1210, 1215 n.4 (11th Cir. 1992), we

indicated that the “unincorporated association” exception under Rule 17(b) should

not apply to governmental units, subdivisions, or agencies.

Accordingly, the district court did not err in dismissing the CCBOE as a

party. Under Georgia law, the CCBOE is not an entity capable of being sued.

Moreover, there is no evidence that the legislature acted to make the CCBOE

subject to suit. Finally, Rule 17(b)’s unincorporated association exception does not

apply to government units.

AFFIRMED.

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