[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 04-13529
JUNE 23, 2005
Non-Argument Calendar
THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-01291-CV-ORL-28JGG
GLORIA B. MOSLEY,
Plaintiff-Appellant,
versus
MERISTAR MANAGEMENT COMPANY, LLC,
d.b.a. Homewood Suites Hotel,
DOUG KOENIG, Individually,
FRANCIS RIVERA, Individually,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(June 23, 2005)
Before ANDERSON, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Gloria B. Mosley, an African-American female, appeals pro se the district
court’s grant of summary judgment to MeriStar Management Company, LLC, and
her former supervisors, Doug Koenig and Francisco Rivera (collectively,
“MeriStar”), alleging violations of Title VII of the Civil Rights Acts of 1964, 42
U.S.C. § 2000e, et seq., 42 U.S.C. § 1981, and Florida Civil Rights Act, Fla.
Stat. § 760.01 et seq. On appeal, Mosley argues that the district court abused its
discretion by striking her answer and accompanying affidavits in opposition to
MeriStar’s motion for summary judgment that were four days late. She also claims
that the district court erred by granting summary judgment in favor of MeriStar on
her discriminatory discharge and hostile work environment racial harassment
claims.
I. Motion to Strike
We review the district court’s decision to strike a party’s pleadings for abuse
of discretion. Young v. City of Palm Bay, Florida, 358 F.3d 859, 863 (11th Cir.
2004). A district court “has not abused its discretion when the court has ‘a range
of choices’ and the court’s choice ‘does not constitute a clear error of judgment.’”
Vandenberg v. Donaldson, 259 F.3d 1321, 1326 (11th Cir. 2001).
The district court’s refusal to consider an untimely opposition to summary
2
judgment motion is not an abuse of discretion. Young, 358 F.3d at 864. Absent an
affirmative showing by the non-moving party of excusable neglect according to
Fed.R.Civ.P. 6(b), a court does not abuse its discretion in refusing to accept
out-of-time affidavits. Useden v. Acker, 947 F.2d 1563, 1571-72 (11th Cir. 1991).
“Procedural default is not excused merely because claimants are proceeding pro
se.” United States v. Three Parcels of Real Property, 43 F.3d 388, 392 (8 th Cir.
1994).
We cannot say that the district court abused its discretion by striking
Mosley’s opposition and accompanying affidavits to MeriStar’s motion for
summary judgment. The record revealed that Mosley’s opposition was due on
February 27, 2004, and was four days late when it was filed on March 2, 2004.
Moreover, her cross-motion for summary judgment was 18 days late. Mosley
neither asked for an extension of time to file a response, nor explained why her
opposition was tardy, nor opposed MeriStar’s motion to strike her opposition with
the accompanying affidavits. Mosley filed a motion for reconsideration and stated
that she was not able to file a timely response because she had to aid her sister in a
medical emergency on March 1, 2004, which arguably constituted excusable
neglect had the response been due then. However, Mosley’s opposition was due
on February 27, 2004, and therefore, she did not show why her late filling should
3
be excused.
II. Summary Judgment
We review a district court’s grant of summary judgment de novo. Patrick v.
Floyd Medical Center, 201 F.3d 1313, 1315 (11th Cir. 2000). We construe the
facts and draw all reasonable inferences in the light most favorable to the
non-moving party. HCA Health Services of Georgia, Inc. v. Employers Health Ins.
Co., 240 F.3d 982, 991 (11th Cir. 2001). Rule 56(c) states that 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). “A mere ‘scintilla’ of evidence
supporting the opposing party's position will not suffice; there must be enough of a
showing that the jury could reasonably find for that party.” Walker v. Darby, 911
F.2d 1573, 1577 (11th Cir. 1990). When faced with a “properly supported motion
for summary judgment, [the nonmoving party] must come forward with specific
factual evidence, presenting more than mere allegations.” Gargiulo v. G.M. Sales,
Inc., 131 F.3d 995, 999 (11th Cir. 1997).
A. Disparate Treatment
Title VII makes it an unlawful employment practice for an employer to fail
4
or refuse to hire or to discharge any individual, or otherwise discriminate against
any individual with respect to her compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national
origin. See Bass v. Board of County Com'rs, Orange County, Fla., 256 F.3d 1095,
1103 (11th Cir. 2001); see also 42 U.S.C. § 2000e-2(a). Section 1981 prohibits
employment discrimination based on race. See Jackson v. BellSouth
Telecommunications, 372 F.3d 1250, 1269-70 (11th Cir. 2004); see also 42 U.S.C.
§ 1981. The FCRA prohibits employment discrimination based on race, color,
religion, sex, national origin, age, handicap, or marital status. See Fla. Stat.
§ 760.10(i)(a).
The Supreme Court uses the burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973), to evaluate claims of indirect evidence of discrimination in employment
actions. First, the plaintiff in a Title VII1 case carries the burden of establishing a
prima facie case of discrimination. Id. at 802. In order to make out a prima face
case of discriminatory termination on account of race, plaintiff may show: (1) she
1
FCRA is patterned after Title VII, and courts routinely apply Title VII case law to
discrimination claims brought under the FCRA. See Maniccia v. Brown, 171 F.3d 1364, 1368
n.2 (11th Cir. 1999). Section 1981 claims also have the same requirements of proof and use the
same analytical framework. See Shields v. Fort James Corp., 305 F.3d 1280, 1282 (11th Cir.
2002).
5
belongs to a racial minority; (2) she was qualified to do her job; (3) she was
subjected to an adverse employment action; and (4) her employer treated similarly-
situated employees outside her classification more favorably. Holifield v. Reno,
115 F.3d 1555, 1562 (11th Cir. 1997). If a plaintiff establishes a prima facie case,
the burden then shifts to the employer, who must “proffer a legitimate, non-
discriminatory reason for the adverse employment action. The employer’s burden
is exceedingly light.” Meeks v. Computer Assoc. Int’l., 15 F.3d 1013, 1021 (11th
Cir. 1994). Once the employer proffers a legitimate, non-discriminatory reason,
the employee, in order to survive summary judgment, “has to come forward with
evidence, including the previously produced evidence establishing a prima facie
case, sufficient to permit a reasonable fact finder to conclude that the reasons given
by the employer were not the real reasons for the adverse employment decision.”
Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997). Moreover,
the ultimate burden of persuasion rests on the employee in cases involving merely
circumstantial evidence. Texas Dept. of Community Affairs v. Burdine, 450 U.S.
248, 253, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). “Provided that the
proffered reason is one that might motivate a reasonable employer, an employee
must meet that reason head on and rebut it, and the employee cannot succeed by
simply quarreling with the wisdom of that reason.” Chapman v. AI Transp., 229
6
F.3d 1012, 1030 (11th Cir. 2000)
Even if Mosley had proven the elements of a prima facie case of racial
discrimination, her claim fails. MeriStar articulated legitimate, non-discriminatory
reasons for terminating Mosley’ employment, namely, violation of the hotel’s
smoking policy and prior performance problems. Mosley failed to produce any
evidence contesting the veracity of MeriStar’s proffered reasons for her
termination.2 Her personal belief, unsupported by other evidence, does not suffice
to establish pretext. Because Mosley failed to present evidence indicating that
MeriStar’s reasons for her termination were pretextual, the district court properly
granted summary judgment in favor of MeriStar.
B. Hostile Work Environment
Title VII, § 1981, and FCRA provide for causes of action for hostile work
environment discrimination based on race. See Miller v. Kenworth of Dothan,
Inc., 277 F.3d 1269, 1275 (11th Cir. 2002)(Title VII); Jackson v. Motel 6
Multipurpose, Inc., 130 F.3d 999, 1008 n.17 (11th Cir. 1997)(§ 1981); Wilbur v.
Correctional Services Corp., 393 F.3d 1192, 1195 n.1 (11th Cir. 2004)(FCRA).
In order to establish a hostile work environment claim, the plaintiff must
show that (1) she belongs to a protected group, (2) she has been subjected to
2
The only evidence that might have created genuine issues of fact were contained in the
affidavits which the district court struck.
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unwelcome harassment, (3) the harassment was based on a protected characteristic
of the employee, (4) the harassment was sufficiently severe or pervasive to alter the
terms and conditions of employment and create a discriminatory abusive working
environment, and (5) the employer was responsible for such environment under
either a theory of vicarious or direct liability. Miller v. Kenworth of Dothan, Inc.,
277 F.3d 1269, 1275 (11 th Cir. 2002). The severity requirement contains both an
objective and subjective element, in which we consider whether a reasonable
person would find the work environment hostile or abusive, and whether the
plaintiff subjectively perceived the work environment to be hostile or abusive. Id.
at 1276. In evaluating the objective severity of the harassment, we look at the
totality of the circumstances and consider, inter alia, “(1) the frequency of the
conduct, (2) the severity of the conduct, (3) whether the conduct is physically
threatening or humiliating, or a mere offensive utterance, and (4) whether the
conduct unreasonably interferes with the employee’s job performance.” Id. The
plaintiff need not show that the harassment was so extreme that it produced
tangible effects on his job performance in order to be actionable. Harris v. Forklift
Sys., Inc., 510 U.S. 17, 22, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993). Isolated
or sporadic incidents of harassment do not satisfy the “severe or pervasive”
standard of a hostile work environment claim. See Faragher v. City of Boca Raton,
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524 U.S. 775, 787-88, 118 S.Ct. 2257, 2283, 141 L.Ed.2d 662 (1998); see also
Gupta v. Fla. Bd. Of Regents, 212 F.3d 571, 583 (11th Cir. 2000).
The district court did not err by granting summary judgment to MeriStar on
Mosley’s hostile work environment claims. The evidence properly before the
district court falls short of establishing a hostile work environment claim.3
Accordingly, the district court did not err in granting summary judgment.
AFFIRMED.4
3
It is clear that the district court did not consider the stricken affidavits. Although the
court noted that the complaint alleged two isolated incidents of racial slurs, the court held that
would have been insufficiently severe. Moreover, the complaint was unverified and therefore
could not be considered evidence supporting Mosley’s claim.
4
Other arguments by Mosley on appeal are rejected without need for discussion.
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