A federal appeals court has upheld a lower court’s dismissal of the former Walthourville chief of police’s suit against the city and several others.

The 11th U.S. Circuit Court of Appeals issued its ruling February 23 in the case for former police chief Bernie Quarterman, who sued the city, former mayor Daisy Pray, former city clerk Melissa Jones and former city attorneys Jeff Arnold and Andrew Johnson, alleging violations of the Fair Labor Standards and Civil Rights acts.

“Quarterman failed to sufficiently allege in his fifth amended complaint that he had no adequate state remedy to address the City’s alleged Fourteenth Amendment violations,” the three judge-panel wrote. “For this reason, we decline to reach the merits of the parties’ various arguments on appeal about whether Quarterman did or did not have constitutionally- protected liberty or property interest.”

The appellate court’s judges also said Georgia law gives Quarterman the opportunity to seek a writ of mandamus to require a new hearing to remedy any of his constitutional rights being deprived from him. But the judges noted he failed to seek such a remedy, “and the district court did not err in dismissing those claims for failure to state a claim.”

A writ of mandamus, the appellate judges stated is an adequate remedy to protect a plaintiff ’s right to have a name-clearing hearing. “If adequate state remedies were available but the plaintiff failed to take advantage of them, the plaintiff cannot rely on that failure to claim that the state deprived him of procedural due process,” they wrote in their unanimous decision.

“Once again, Quarterman appears to raise new arguments on appeal— namely, a substantive due process claim. To the extent that by including this in his initial brief, Quarterman requests that we consider this new argument, we decline to do so,” the judges pointed out in a footnote to their decision. “He had ample opportunity in the district court to make the argument he now makes, and no circumstances warrant us considering it.”

The appellate court also upheld the lower court’s dismissal of Quarterman’s allegations and noted he failed to challenge on appeal the dismissal of his official capacity claims against Pray, Jones, Arnold and Johnson.

Also, the appeals court affirmed the district court’s decision on Quarterman’s charges of retaliation in filing a claim against each defendant in an individual capacity.

“The district court dismissed these claims because individual-capacity claims are not allowed under Title VII. He failed to respond to the defendants’ arguments related to Title VII individual liability in the district court, and argue in his initial brief on appeal that the defendants are individually liable,” the appeals court judges wrote.

Quarterman also appealed the dismissal of his individual-capacity FLSA claims and his FLSA overtime and retaliation claims brought against the city. Under the FLSA, to state a valid unpaid-overtime claim against a covered employer, an employee bears the initial burden of showing that he worked unpaid overtime, and his employer knew or should have known of the overtime work, appeals court judges wrote. By failing to challenge on appeal the district court’s dismissal of his official-capacity claims against Pray, Jones, Arnold, and Johnson, Quarterman has abandoned any such challenges.

Quarterman argued on appeal that Pray should be held individually liable because she qualified as an “employer” under the FLSA. “But Pray is correct that she is not an employer within the meaning of the FLSA,” appeals court judges wrote. “We recently clarified that public officials—such as Pray, the City’s former mayor—sued in their individual capacities are not employers within the meaning of the FLSA such that they may be subject to individual liability.”

The appellate judges also said the city is correct that Quarterman’s fifth amended complaint “contained no more than unsubstantiated conclusions” for a valid FLSA overtime claim. Quarterman merely stated in his fifth amended complaint that the city was an employer, non-exempt under FLSA, failed to pay overtime and failed to keep timesheets of actual hours worked, which he asserted was in bad faith “He neither alleged that he had worked overtime, nor did he attach any factual support such that those attachments may have permitted him to state a plausible FLSA overtime claim and thus survive a motion to dismiss,” the appeals court judges wrote.

Quarterman’s FLSA retaliation claim also fails. “Even liberally construing this claim,” the appeals court judges said, “it fails to state a plausible claim of FLSA retaliation because the act of filing an OSH Act whistleblower complaint is not a protected activity under the FLSA.”

Quarterman, who first brought the complaint in 2020, was police chief from 2015–18. He claimed he had never been accused of any wrong doing until he reported corruption, retaliation, abuse of power and criminal and illegal conduct by Pray and Jones and was targeted with the help of then city attorneys Arnold and Johnson, he alleged in his lawsuit.

He also sought relief from the court because of the “defendants’ groundless suspension and termination … in a highly publicized manner stigmatized him irretrievably damaged his reputation.” It also made it impossible for him to pursue law enforcement employment equal to his law enforcement employment history and experience. He also charged that the 14th Amendment’s due process clause protected him from “such arbitrary government actions.”