Bobby Shed v. University of South Florida Board of Trustees

USCA11 Case: 23-13746 Document: 35-1 Date Filed: 05/30/2025 Page: 1 of 17

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-13746

Non-Argument Calendar

____________________

BOBBY SHED,

Plaintiff-Appellant,

versus

UNIVERSITY OF SOUTH FLORIDA BOARD OF TRUSTEES,

CAMILLE BLAKE,

Attorney, in her official capacity,

DEBORAH MCCARTHY,

Ms., in her official capacity,

MOEZ LIMAYEM,

Dean, in his official capacity,

JAQUELINE RECK,

Associate Dean, in her official capacity, et al.,

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2 Opinion of the Court 23-13746

Defendants-Appellees,

DWAYNE SMITH,

Provost, in his official capacity, et al.,

Defendants.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:22-cv-01327-KKM-TGW

____________________

Before JORDAN, BRASHER, and ABUDU, Circuit Judges.

PER CURIAM:

Bobby Shed, proceeding pro se, appeals the district court’s

orders (1) dismissing, in part, his pro se employment discrimination

and retaliation claims under the Equal Protection Clause of the

Fourteenth Amendment and Title VII of the Civil Rights Act of

1964 (“Title VII”), 42 U.S.C. § 2000e et seq., (2) granting judgment

on the pleadings, in part, and (3) taxing the costs of his deposition

against him. First, he argues that the district court erred in dismiss-

ing his Title VII retaliation claim in Count II. Second, he asserts

that the district court erred in dismissing his Title VII discrimina-

tion claim in Count IV. Third, he maintains that the district court

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23-13746 Opinion of the Court 3

erred in granting judgment on the pleadings on his Equal Protec-

tion Clause retaliation claim in favor of Murat Munkin. Fourth, he

contends that the district court abused its discretion in taxing the

cost of his deposition against him.

I

A

Mr. Shed was admitted as a Ph.D. student to the University

of South Florida (“USF”) in 2017. During his Ph.D. program, Mr.

Shed participated in a research fellowship program as a graduate

assistant, where he was awarded more than $180,000.00 in grants,

fellowships, and work contract awards from USF. Mr. Shed identi-

fies as a Black, American, gay, male with disabilities.

Between August 10, 2018, and March 6, 2020, Mr. Shed filed

three separate internal complaints with USF’s Office of Diversity

Inclusion and Equal Opportunity alleging racial discrimination.

The first complaint was filed on August 10, 2018, and was a “for-

mal, written, good faith complaint” about the USF Police’s “racial

treatment” of Mr. Shed, “which he perceived to be incommensu-

rate with the treatment of similarly situated individuals.” Mr. Shed,

however, does not explain what “racial treatment” he experienced

at the hands of the USF Police.1

1 Mr. Shed argues on appeal that had his motion to amend and file excess pages

been granted, he would have provided audio recordings and transcripts be-

tween him and a university official detailing how “his initial complaint was

based on being stopped and harassed by USF Police based on his race” and that

this complaint was “submitted after non-Black Finance Ph.D. students stated

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4 Opinion of the Court 23-13746

Mr. Shed’s second complaint, filed on September 1, 2019,

was another “race-based complaint . . . document[ing] that USF Po-

lice issued citations to Black people” at a higher rate than their rep-

resentation on campus and in the “surrounding Hillsborough

County” community. Mr. Shed’s last complaint, filed on March 6,

2020, was a “formal, written, good-faith Whistleblower Report and

Grievance complaint” related to his allegations about Professor

Munkin’s behavior in class.

Mr. Shed alleged that these internal complaints were not

timely reviewed and that adverse actions were taken against him

in response to filing his complaints, including being denied his dis-

ability accommodations, having his funding withheld, and being

dismissed from USF’s academic programs.

Mr. Shed also alleged that Professor Munkin retaliated

against him after he filed his complaints and the two discussed the

data that formed the basis of these complaints. Mr. Shed alleged

that Mr. Munkin knew of the content of these internal complaints

because Mr. Shed sent Mr. Munkin the data and because Mr. Mun-

kin commented to Mr. Shed about the race-based complaints. Mr.

Shed alleged that Mr. Munkin retaliated by denying Mr. Shed pre-

viously granted accommodations, such as giving him a cumulative

they were never stopped when they go to their offices at night.” But he only

attached his Fifth Amended Complaint to his motion to amend and file excess

pages and stated that supplemental exhibits would follow. Such exhibits were

never filed. Mr. Shed instead now refers this Court to filings that predate his

Fifth Amended Complaint to supply this information.

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rather than non-cumulative final, denying Mr. Shed extended time

on quizzes, and denying Mr. Shed the opportunity to reschedule

quizzes.

B

Mr. Shed brought suit against USF, the Board of Trustees,

and several members of the USF staff in their individual and official

capacities, including Camille Blake, Joanne Adamchak, Deborah

McCarthy, Moez Limayem, Jacquelin Reck, Jianping Qi, Ninon

Sutton, Scott Besley, and Mr. Munkin (collectively the defendants).

Mr. Shed later moved to amend his complaint and for leave to file

additional pages. His motion included his proposed amended com-

plaint and noted that “supplemental exhibits” would be forthcom-

ing. The district court granted the motion and directed Mr. Shed

to file the attachment as his Fifth Amended Complaint.

Mr. Shed’s Fifth Amended Complaint raised claims for retal-

iation and discrimination pursuant to various state and federal

laws. Relevant to this appeal, Mr. Shed brought a retaliation claim

pursuant to Title VII against USF (Count II), a retaliation claim pur-

suant to the Fourteenth Amendment and 42 U.S.C. § 1983 against

Mr. Munkin (Count III), and a racial discrimination claim pursuant

to Title VII against USF (Count IV).2

2 On appeal, Mr. Shed does not address Counts I, V, VI, VII, or VIII, and there-

fore they are abandoned. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,

1330 (11th Cir. 2004).

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6 Opinion of the Court 23-13746

The defendants moved to dismiss Mr. Shed’s Fifth Amended

Complaint for failure to state a claim pursuant to Federal Rule of

Civil Procedure 12(b)(6). The district court granted the motion as

to all claims, except for Count III against Mr. Munkin in his indi-

vidual capacity.

As to Count II, the district court ruled that Mr. Shed’s retal-

iation claim against USF failed because his complaints about how

the USF Police treated private individuals were not related to an

unlawful employment practice under Title VII.

As to Count III, the district court concluded that Mr. Shed

lacked standing to seek injunctive relief against Mr. Munkin in his

official capacity because USF was immune from suits for damages

under 42 U.S.C. § 1983. However, the district court did not dismiss

Count III in its entirety because the defendants failed to challenge

Mr. Shed’s claims against Mr. Munkin in his individual capacity.

As to Count IV, the district court explained that Mr. Shed’s

racial discrimination claim against USF failed because his allega-

tions of USF ineffectively handling his internal complaints due to

his race was not an adverse employment action.

Mr. Munkin subsequently moved for judgement on the

pleadings for the remaining retaliation claim against him in his in-

dividual capacity. The district court granted the motion. It ruled

that Mr. Shed’s claim failed because the Equal Protection Clause of

the Fourteenth Amendment did not include a cause of action for

general retaliation. The district court further held that, even if Mr.

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Shed’s claim was plausible, Mr. Munkin would be entitled to qual-

ified immunity.

After judgment was entered, the defendants submitted a

proposed bill of costs totaling $2,227.34 that included the costs of

fees for service of summons and subpoena, fees for printed or elec-

tronically recorded transcripts necessarily obtained for use in the

case, and fees and disbursements for printing. Mr. Shed objected

to the entirety of the proposed bill of costs and argued, in relevant

part, that there was no evidence that the deposition included in the

bill was necessary for the case, that he was never provided with the

deposition transcript, and that the deposition was not used in any

of the filings. The district court awarded $29.34 in costs associated

with the service of the subpoena and $2,013.00 in costs associated

with Mr. Shed’s deposition. The district court found that the de-

fendants’ request for fees for the deposition was proper because the

deposition was necessary and taken within the course of discovery.

It also found that the deposition’s costs were sufficiently supported

by the invoice submitted as documentation of costs.

II

We first address Mr. Shed’s challenge to the district court’s

grant of the defendants’ motion to dismiss his Fifth Amended

Complaint.

A

We review a district court’s order granting a motion to dis-

miss for failure to state a claim de novo. See EEOC v. STME, LLC, 938

F.3d 1305, 1313 (11th Cir. 2019). Pro se pleadings are held to a less

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8 Opinion of the Court 23-13746

stringent standard than pleadings drafted by attorneys and will be

liberally construed. See Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168

(11th Cir. 2014). However, a court may not “serve as de facto coun-

sel for a party,” or “rewrite an otherwise deficient pleading in order

to sustain an action.” Id. at 1168–69 (citation and internal quotation

marks omitted).

To overcome a Rule 12(b)(6) motion to dismiss, a complaint

must include “a short and plain statement of the claim showing that

the pleader is entitled to relief.” See Fed. R. Civ. P. 8(a)(2);

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The com-

plaint must include factual allegations sufficient “to raise a right to

relief above the speculative level” and must contain “enough facts

to state a claim to relief that is plausible on its face.” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555, 570 (2007). “Threadbare recitals of

the elements of a cause of action, supported by mere conclusory

statements[,]” are insufficient to state a claim for relief. Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). The

district court (and we) must “take the factual allegations in the

complaint as true and construe them in the light most favorable to

the plaintiff[ ].” Edwards v. Prime, Inc., 602 F.3d 1276, 1291 (11th

Cir. 2010).

Issues not briefed on appeal are deemed abandoned, and ar-

guments raised for the first time on appeal in a civil action are

waived. See Access Now, Inc., 385 F.3d at 1330–31. Additionally, an

appellant generally may not raise new arguments for the first time

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23-13746 Opinion of the Court 9

in a reply brief. See Lovett v. Ray, 327 F.3d 1181, 1183 (11th Cir.

2003) (per curiam).

B

Title VII makes it unlawful for an employer to discriminate

against an employee because he has opposed any practice made

unlawful, or because he has made a charge or participated in a re-

lated proceeding. See 42 U.S.C. § 2000e-3(a). “To that end, em-

ployers cannot retaliate against employees who have complained

about—that is, opposed—discrimination based on [certain] . . . pro-

tected characteristics.” McCreight v. AuburnBank, 117 F.4th 1322,

1339 (11th Cir. 2024) (citation and internal quotation marks omit-

ted). By its own terms, and as evidenced by the intent of Congress,

Title VII is limited to “protect[ing] employees from their employ-

ers’ unlawful actions.” Thompson v. N. Am. Stainless, LP, 562 U.S.

170, 178 (2011). See also Perry v. Schumacher Grp. of La., 809 F. App’x

574, 579 (11th Cir. 2020) (per curiam) (“Only ‘employees’ may

bring a Title VII suit.”); Llampallas v. Mini-Circuits, Lab, Inc., 163

F.3d 1236, 1243 (11th Cir. 1998) (“We can assume that Con-

gress . . . meant to limit the pool of potential plaintiffs under Title

VII.”).3

3 Though the district court did not address whether Mr. Shed was an employee

for purposes of Title VII, we assume that Mr. Shed sufficiently alleged that he

was employed by USF as a research assistant. See Twombly, 550 U.S. at 570.

See also Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230, 1235 (11th Cir. 2004) (con-

cluding that a graduate student who was employed as a graduate research as-

sistant was an employee of the university under the economic realities test).

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10 Opinion of the Court 23-13746

To properly allege his race-based retaliation claim, Mr. Shed

must allege that “he engaged in statutorily protected activity, he

suffered a materially adverse action, and there was some causal re-

lation between the two events.” Goldmsith v. Bagby Elevator Co., 513

F.3d 1261, 1277 (11th Cir. 2008). To establish that he engaged in

statutorily protected expression, Mr. Shed “must show that [he]

had a good faith, reasonable belief that the employer was engaged

in unlawful employment practices.” Weeks v. Harden Mfg. Corp.,

291 F.3d 1307, 1311–12 (11th Cir. 2002) (citation and internal quo-

tation marks omitted). However, Title VII does not protect against

retaliation resulting from complaints about non-employment re-

lated practices. See Logan v. City of Chicago, 4 F.4th 529, 538–39 (7th

Cir. 2021) (“Title VII is not a general bad acts statute . . . [r]ather,

the conduct it prohibits is specially set forth.”) (alterations in origi-

nal) (citation and internal quotation marks omitted). See also Bonds

v. Leavitt, 629 F.3d 369, 384 (4th Cir. 2011). 4

We agree with the district court that Mr. Shed failed to

properly allege a claim for retaliation in violation of Title VII

4 In a Title VII employment discrimination lawsuit, the complaint need not

allege a prima facie case under the framework announced in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), which is “an evidentiary standard, not a

pleading requirement.” Swierkiewicz, 534 U.S. at 510. Rather, the complaint

“must contain only ‘a short and plain statement of the claim showing that the

pleader is entitled to relief.’” Id. at 508 (quoting Fed. R. Civ. P. 8(a)(2)).

Swierkiewicz was cited with approval in Twombly, 550 U.S. at 569–70, so it is

still good law in the Title VII context. And although Swierkiewicz involved the

discrimination context, we see no reason why this principle would not apply

with equal force to a retaliation claim.

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against USF. In Count II, he alleged that USF retaliated against him

by decreasing his funding and removing him from his graduate pro-

gram after he complained about the USF Police’s alleged discrimi-

nation against Black people. But he failed to allege “that [he] had a

good faith, reasonable belief that [his] employer was engaged in

unlawful employment practices,” because USF Police’s treatment

of private individuals is not an employment practice. See Edwards

v. Ambient Healthcare of Ga., Inc., 674 F. App’x 926, 930 (11th Cir.

2017) (per curiam) (“[T]he driver’s alleged actions toward non-em-

ployee patients of Ambient and their caregivers (while reprehensi-

ble) is not an employment practice made unlawful by Title VII.”)

(citation and internal quotation marks omitted); Jackson v. Motel 6

Multipurpose, Inc., 130 F.3d 999, 1006 n.16 (11th Cir. 1997) (noting

that employees’ retaliation claim based on opposition to unlawful

discrimination against motel customers “could not proceed under

the familiar Title VII retaliation statute” because the plaintiffs did

not allege that they were discriminated against for “opposing an

unlawful employment practice.”) (emphasis removed).

Though we liberally construe Mr. Shed’s pleadings, we can-

not “serve as de facto counsel for a party,” or “rewrite an otherwise

deficient pleading in order to sustain an action.” Campbell, 760 F.3d

at 1168–69. Accordingly, we affirm as to the retaliation claim.

C

Title VII precludes employers from discriminating against

an employee “because of” his race. 42 U.S.C. § 2000e-2(a). To state

a claim for race discrimination in violation of Title VII, a complaint

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12 Opinion of the Court 23-13746

need only provide sufficient factual allegations to “plausibly sug-

gest that the plaintiff suffered an adverse employment action due

to intentional racial discrimination.” Surtain v. Hamlin Terrace

Found., 789 F.3d 1239, 1246 (11th Cir. 2015). See also McCarthy v.

City of Cordele, 111 F.4th 1141, 1147 (11th Cir. 2024) (applying

Swierkiewicz and Iqbal to conclude that the plaintiff’s allegations

“nudged [his] race-discrimination claims across the line from con-

ceivable to plausible.”) (citation and internal quotation marks re-

moved). To sufficiently allege a Title VII discrimination claim, an

employee “must show some harm respecting an identifiable term

or condition of employment.” Muldrow v. City of St. Louis, Missouri,

601 U.S. 346, 354–55 (2024). The adverse employment action “must

have left [him] worse off, but need not have left [him] significantly

so.” Id. Under “the proper Title VII standard,” a plaintiff need not

demonstrate that the adverse employment action “caused ‘signifi-

cant’ harm.” Id. at 360.

The district court did not err in dismissing Mr. Shed’s Title

VII claim in Count IV because he failed to allege the required ele-

ments of a Title VII discrimination claim. In Count IV, Mr. Shed

alleged that USF discriminated against him by failing to handle his

internal complaints in a timely and proper manner. Yet he failed

to allege that USF’s failure to handle his internal complaints re-

sulted in an adverse employment action—e.g., termination from

the Ph.D program. Moreover, USF’s alleged failure to timely ad-

dress Mr. Shed’s internal complaints did not result in a change in

the terms, conditions, or privileges of his employment. See Everson

v. Coca-Cola, 241 F. App’x 652, 653 (11th Cir. 2007) (per curiam)

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23-13746 Opinion of the Court 13

(holding that “failure to respond to [plaintiff’s] internal complaints”

was not the “type[ ] of action[ ] that would have any ‘material’ af-

fect on [plaintiff’s] employment.”).

Because Mr. Shed failed to allege an adverse employment

action resulting from USF’s alleged failure to timely address his in-

ternal complaints, he failed to plead a plausible claim of employ-

ment discrimination. Accordingly, we affirm as to this claim.

III

We next address Mr. Shed’s challenge to the district court’s

grant of Mr. Munkin’s motion for judgement on the pleadings.

A

We review an order granting a motion for judgment on the

pleadings de novo. See Perez v. Wells Fargo N.A., 774 F.3d 1329, 1335

(11th Cir. 2014). “Judgment on the pleadings is appropriate where

there are no material facts in dispute and the moving party is enti-

tled to judgment as a matter of law.” Id. (quoting Cannon v. City of

W. Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001)). “In determin-

ing whether a party is entitled to judgment on the pleadings, we

accept as true all material facts alleged in the non-moving party’s

pleading,” and then view “those facts in the light most favorable to

the non-moving party.” Id.

B

Under our prior-panel precedent rule, a prior panel’s holding

is binding unless it has been overruled or abrogated by the Su-

preme Court or by our Court sitting en banc. See Sabal Trail

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14 Opinion of the Court 23-13746

Transmission, LLC v. 18.27 Acres of Land in Levy Cnty., 59 F.4th 1158,

1164 (11th Cir. 2023). We have previously held that “[t]he right to

be free from retaliation is clearly established as a [F]irst [A]mend-

ment right and as a statutory right under Title VII; but no clearly

established right exists under the equal protection clause to be free

from retaliation.” Ratliff v. DeKalb Cnty., 62 F.3d 338, 340 (11th Cir.

1995) (emphasis removed). “A pure or generic retaliation

claim . . . simply does not implicate the Equal Protection Clause.”

Watkins v. Bowden, 105 F.3d 1344, 1354 (11th Cir. 1997) (per cu-

riam).

The district court did not err in granting judgment on the

pleadings on Mr. Shed’s retaliation claim against Mr. Munkin in his

individual capacity. Even accepting as true all the facts Mr. Shed

alleges, his claim that Mr. Munkin retaliated against him in viola-

tion of the Equal Protection Clause is not cognizable because “no

clearly established right exists under the equal protection clause to

be free from retaliation.” Ratliff, 62 F.3d at 340 (emphasis re-

moved). Therefore, Mr. Munkin was entitled to judgment as a

matter of law. To the extent that Mr. Shed asks us to reconsider

our precedent, we are bound to it by our prior-panel precedent

rule. See Sabal Trail Transmission, LLC, 59 F.4th at 1164.

Accordingly, we affirm as to this claim.

IV

We conclude by addressing Mr. Shed’s challenge to the dis-

trict court’s grant of the defendants’ bill of costs.

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23-13746 Opinion of the Court 15

A

We review a district court’s decision regarding costs for

abuse of discretion. See Chapman v. AI Transp., 229 F.3d 1012, 1023

(11th Cir. 2000) (en banc). Under the abuse-of-discretion standard,

we will only reverse when the district court “made a clear error of

judgment” or “applied the wrong legal standard.” Rance v.

Rocksolid Granit USA, Inc., 583 F.3d 1284, 1286 (11th Cir. 2009)

(quoting United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004)

(en banc)).

Taxable costs include, among other things, court reporter

and transcript fees necessarily obtained for use in the case, fees and

disbursements for printing and witnesses, and fees for copies of pa-

pers necessarily obtained for use in the case. See 28 U.S.C.

§ 1920(2)–(4). See also Fed. R. Civ. P. 54(d)(1). “The presumption

is in favor of awarding costs.” Arcadian Fertilizer, L.P. v. MPW Indus.

Servs., Inc., 249 F.3d 1293, 1296 (11th Cir. 2001) (per curiam).

Costs may be taxed for the costs of depositions. See 28

U.S.C. § 1920(2) (“A judge . . . may tax as costs . . . [f]ees for printed

or electronically recorded transcripts necessarily obtained for use

in the case . . . .”). See also EEOC v. W&O, Inc., 213 F.3d 600, 620

(11th Cir. 2000). We have therefore held that “[a] district court

may tax costs associated with the depositions submitted by the par-

ties in support of their summary judgment motions.” W&O, Inc.,

213 F.3d at 621 (citation and internal quotation marks omitted).

Even where a deposition is not used by the prevailing party at sum-

mary judgment, the party challenging the cost award must show

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16 Opinion of the Court 23-13746

that the “depositions were not related to an issue in the case when

the depositions were taken.” Id. at 622. However, costs are not

recoverable “where the deposition costs were merely incurred for

convenience, to aid in thorough preparation, or for purposes of in-

vestigation only.” Id. at 620 (alteration removed) (citation and in-

ternal quotation marks omitted).

We have noted that “[f]acial challenges to the legal suffi-

ciency of a claim or defense, such as a motion to dismiss based on

failure to state a claim for relief, should . . . be resolved before dis-

covery begins.” Chudasama v. Mazda Motor Corp., 123 F.3d 1353,

1367 (11th Cir. 1997) (footnote omitted). This is so because “[s]uch

a dispute always presents a purely legal question; there are no is-

sues of fact because the allegations contained in the pleading are

presumed to be true. Therefore, neither the parties nor the court

have any need for discovery before the court rules on the motion.”

Id. (citation omitted).

The district court did not abuse its discretion in awarding

the defendants the costs of Mr. Shed’s deposition. The district

court was permitted to award costs for the deposition even though

the deposition was not later used because Mr. Shed’s deposition

was related to the issues of the case, namely his allegations of retal-

iation. The district court was also permitted to award costs for the

deposition even though it took place before it ruled on the motion

to dismiss because it took place during an agreed upon discovery

period ordered by the district court, there was a long period of time

between the filing of the original complaint and the operative

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23-13746 Opinion of the Court 17

complaint, and neither party moved to stay discovery pending res-

olution of the motion to dismiss. Although the defendants’ sub-

mission of the costs of the deposition does not detail how the

amount was calculated, it is clear the cost was for one deposition.

It was therefore reasonable for the district court to find that suffi-

cient documentation existed.

Accordingly, we affirm as to this claim.

V

We affirm the district court on all issues raised.

AFFIRMED.