[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-11086 DECEMBER 7, 2005
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 03-00720-CV-RLV-1
ANDRE L. CRAWFORD,
Plaintiff-Appellant,
versus
ELAINE CHAO,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 7, 2005)
Before ANDERSON, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Andre L. Crawford, a black male who was placed on leave restriction and
ultimately terminated, appeals pro se the district court’s order granting the
Occupational Safety and Health Agency (“OSHA”) summary judgment in his
employment discrimination action under Title VII, 42 U.S.C. §§ 2000e-16, 3; and
the Rehabilitation Act, 29 U.S.C. § 791. OSHA maintains that it terminated
Crawford’s employment because he falsified his time and attendance records. In
reviewing Crawford’s application for unemployment benefits, the Georgia
Department of Labor (“Georgia DOL”) found that OSHA had not proven by a
preponderance of the evidence that Crawford was dismissed for just cause. DOL
found that OSHA had improperly relied on hearsay testimony for proof of
Crawford’s allegedly delinquent conduct at work. Crawford argues that the DOL
decision should preclude further review of his discrimination claims. Further,
Crawford argues that the district court erred when it affirmed the Equal
Employment Office’s (“EEO”) affirmance that the decision of OSHA’s Merit
System Protection Board (“MSPB”) was based on substantial evidence and that
Crawford failed to present any evidence that he was terminated on the bases of
race, gender, disability, or retaliation.
I.
We “review de novo the district court’s order granting summary judgment.”
Pennington v. City of Huntsville, 261 F.3d 1262, 1265 (11th Cir. 2001).
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“Summary judgment is appropriate where there is no genuine issue of material
fact.” Id.; see Fed.R.Civ.P. 56(c). A factual dispute is genuine “if the evidence is
such that a reasonable jury could return a verdict for the non-moving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986). At the summary judgment stage, we “review the facts and all
reasonable inferences in the light most favorable to the non-moving party.”
Pennington, 261 F.3d at 1265. Summary judgment is appropriate if the “pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c). “Conclusory allegations . . . or evidence setting forth legal
conclusions are insufficient to” show that a genuine issue of material fact exists.
Wood v. City of Lakeland, Fla., 203 F.3d 1288, 1292 (11th Cir. 2000). Moreover,
summary judgment cannot be avoided “based on hunches unsupported with
significant probative evidence.” Raney v. Vinson Guard Serv., Inc., 120
F.3d 1192, 1198 (11th Cir. 1997).
Crawford argues that the DOL decision finding in his favor should preclude
a different decision made by the Merit System Protection Board (“MSPB”). We
have “repeatedly held that an issue not raised in the district court and raised for the
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first time in an appeal will not be considered by this court.” Access Now, Inc. v.
Southwest Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (quoting Walker v.
Jones 10 F.3d 1569, 1572 (11th Cir. 1994) (internal quotations omitted). Crawford
did not raise this point before the district court and so may not pursue it here.
Furthermore, assuming arguendo that Crawford did raise this issue in the district
court, we have “decline[d] to grant preclusive effect to [] unreviewed state agency
determinations.” Delgado v. Lockheed-Georgia Co., 815 F.2d 641, 646-47 (11th
Cir. 1987) (holding that individuals, who were fired for falsifying time records and
were denied unemployment benefits by a state agency, could bring a federal claim
because the unreviewed agency decision did not preclude further litigation). We
hold that the unreviewed state agency’s opinion does not preclude federal judicial
review of this matter.
II.
A. Nondiscrimination claim
Crawford argues that the MSPB improperly admitted hearsay evidence and
concluded that there was not substantial evidence to support its ultimate finding.
Generally, “MSPB determinations are reviewed on the record and set aside only if
the ‘agency action, finding or conclusion’ is found to be: ‘(1) arbitrary, capricious,
an abuse of discretion or otherwise not in accordance with law; (2) obtained
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without procedures required by law, rule, or regulation having been followed; or
(3) unsupported by substantial evidence.’” Kelliher v. Veneman, 313 F.3d 1270,
1274 (11th Cir. 2002) (quoting 5 U.S.C. § 7703(c)). Relying on the reasoning of
the DOL decision, Crawford contends that the MSPB improperly admitted hearsay
testimony and without such testimony, the MSPB decision is unsupported by
substantial evidence. Yet these contentions ignore a vital difference between the
DOL hearing and the MSPB hearing. In the former, Crawford’s superior reported
the testimony of fellow managers while in the latter those managers testified
themselves. The MSPB determination did not rely on hearsay testimony. Because
Crawford failed to show that the MSPB’s decision was not supported by
substantial evidence we affirm the district court’s affirmance of the MSPB’s
decision.
B. Discrimination claims
1. Race and gender
Crawford argues that white and female employees were granted certain
benefits when these were denied him. Title VII states that “[federal employees]
shall be made free from any discrimination based on race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-16(a). A plaintiff may prove a claim of
disparate treatment by establishing a prima facie case of discrimination. Jones v.
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Gerwens, 874 F.2d 1534, 1538 (11th Cir. 1989). To set out a prima facie case, the
plaintiff may show that: “(1) he is a member of a protected class; (2) he was
qualified for the position; (3) he suffered an adverse employment action; and (4) he
was replaced by a person outside his protected class or was treated less favorably
than a similarly-situated individual outside his protected class.” Maynard v. Bd. of
Regents of the Univs. of the Fla. Dep’t of Educ., 342 F.3d 1281, 1289 (11th Cir.
2003). After the plaintiff establishes a prima facie case of discrimination, the
burden shifts to the defendant to offer a legitimate, non-discriminatory reason for
its actions. Gerwens, 874 F.2d at 1538. “[T]he plaintiff then must establish that
the employer’s articulated reason was a pretext for discrimination . . . the plaintiff
retains the ultimate burden of proving by a preponderance of the evidence the
existence of purposeful discrimination.” Id. at 1538-39.
Here, the only prima facie element at issue was whether Crawford was
treated less favorably than comparators. We have held that “the most important
variables in the disciplinary context, and the most likely sources of different but
nondiscriminatory treatment, are the nature of the offenses committed and the
nature of the punishments imposed.” Id. at 1539-40. “[T]o meet the comparability
requirement a plaintiff is required to show that he is similarly situated in all
relevant aspects to the non-minority employee.” Silvera v. Orange County School
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Bd., 244 F.3d 1253, 1259 (11th Cir. 2001) (internal quotations omitted).
Here, Crawford failed to provide any evidence that he was similarly situated
to or similarly treated as any other individuals, and , therefore, has failed to make a
prima facie claim of either race or gender discrimination. Assuming arguendo that
Crawford made a prima facie case of race or gender discrimination, his claim is
still without merit. OSHA gave four legitimate nondiscriminatory reasons for
Crawford’s termination. Specifically OSHA claimed that Crawford (1) failed to
follow procedure when requesting leave, (2) intentionally falsified his time and
attendance record, (3) had a lack of candor with management, and (4) was absent
without leave. The burden then shifted to Crawford, and he had to prove that these
reasons were pretextual. “To survive summary judgment, the plaintiff must then
present concrete evidence in the form of specific facts which show that the
defendant’s proffered reason is mere pretext. Mere conclusory allegations and
assertions will not suffice.” Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081
(11th Cir. 1990). The Supreme Court has held that “a reason cannot be proved to
be a pretext for discrimination unless it is shown both that the reason was false, and
that discrimination was the real reason.” St. Mary’s Honor Ctr. V. Hicks, 509 U.S.
502, 515, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407 (1993) (emphasis in the original)
(internal quotations omitted). Here, OSHA gave four legitimate nondiscriminatory
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reasons, and Crawford failed to present any evidence that these reasons were false
and that they were not the real reasons for his termination. Therefore, Crawford
has failed to show that OSHA’s reasons were pretextual.
2. Disability
Crawford argues that OSHA viewed him as an employee with disabilities.
Since Crawford was a federal employee, his disability discrimination claim falls
under the Rehabilitation Act, 29 U.S.C. § 791, which states that the standards to be
applied are the same as those under the Americans with Disabilities Act (“ADA”).
29 U.S.C. § 791(g). To establish a claim of disability discrimination, under the
ADA, Crawford had to show that (1) he has a disability, (2) he is qualified for the
position, and (3) he was subjected to unlawful discrimination as a result of his
disability. Mullins v. Crowell, 228 F.3d 1305, 1313 (11th Cir. 2000). Initially, to
prove a disability, Crawford had to present evidence that (1) a major life activity is
limited by a physical or mental impairment, (2) he had a record of such impairment
or (3) he was regarded as being impaired. 29 U.S.C. § 705(20)(B). Major life
activities are defined as “functions such as caring for one’s self, performing
manual tasks, walking, seeing, hearing, speaking, breathing, learning, and
working.” 29 C.F.R. § 1630.2(i). For a condition to limit a person’s ability to
work substantially, it must significantly restrict a person’s ability to perform either
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a class of jobs or a broad range of jobs in various classes as compared with the
average person having compared training, skills, and abilities. Id. § 1630.2(j)(3)(i).
An impairment does not substantially limit a person’s ability to work merely
because it prevents a person from doing a particular or specialized job or narrow
range of jobs. Id. § 1630.2(j)(3)(App.). Nor does the inability to perform a single,
particular job constitute a substantial limitation in the major life activity of
working. Id. § 1630.2 (j)(3)(i); Hilburn v. Murata Elec. N. Am., Inc., 181 F.3d
1220, 1227 (11th Cir. 1999). It is insufficient for individuals attempting to prove
disability status under this test to merely submit evidence of a medical diagnosis of
an impairment; rather, the ADA requires plaintiffs to offer evidence that the extent
of the limitation caused by their impairment in terms of their own experience is
substantial. Toyota Mfg., Ky, Inc. v. Williams, 534 U.S. 184, 195-99, 122 S.Ct.
681, 690-92, 151 L.Ed.2d 615 (2002).
Here, Crawford has failed to provide evidence that a major life activity was
affected, that he has record of an impairment, or that OSHA regarded him as being
impaired, and, therefore, he failed to make a prima facie case for disability
discrimination.
3. Retaliation
Crawford argues that his being placed on leave restriction and his ultimate
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termination were results of retaliation. Pursuant to 42 U.S.C. § 2000e-3(a), it is
illegal for an employer to retaliate against an employee for bringing an EEO claim.
“To establish a prima facie case of retaliation under Title VII, a plaintiff must show
that (1) he engaged in statutorily protected expression; (2) he suffered an adverse
employment action; and (3) there is some causal relation between the two events.”
Pennington, 261 F.3d at 1266 (internal quotation and citation omitted). To make a
prima facie case the claimant must establish a causal connection, and to do so “a
plaintiff must show that the decision-makers [were] aware of the protected
conduct, and that the protected activity and the adverse action were not wholly
unrelated.” Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 590 (11th Cir. 2000)
(internal quotations omitted).
Once the plaintiff establishes his prima facie case, the burden shifts to the
defendant to offer a legitimate, nondiscriminatory reason for its actions. Id. “The
ultimate burden of proving by a preponderance of the evidence that the reason
provided by the employer is a pretext for prohibited, retaliatory conduct remains on
the plaintiff.” Id.
Here, Crawford has made a prima facie case because he showed that there
was a nexus between his protected act and the adverse employment action.
However, as noted earlier, OSHA provided legitimate nondiscriminatory reasons
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for Crawford’s termination, and he failed to show that these reasons were
pretextual.
For the foregoing reasons, the judgment of the District Court is
AFFIRMED.
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