[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 12, 2006
No. 06-11946 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00211-CV-RWS-2
JOAO GODOY,
Plaintiff-Appellant,
versus
HABERSHAM COUNTY,
HABERSHAM COUNTY BOARD
OF COMMISSIONERS, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(December 12, 2006)
Before DUBINA, BLACK and CARNES, Circuit Judges.
PER CURIAM:
Joao Godoy, a Latin-American male from Brazil, appeals the district court’s
grant of summary judgment to Habersham County, the Habersham County Board
of Commissioners, Habersham County Fire Chief Timothy Berry, Habersham
County Assistant Chief Jeff Cain, and Habersham County Lieutenants Jason
Davey, Jamie Tyler, and Jason Garrett1 on his claims of racial and national origin
discrimination, hostile work environment, retaliatory termination, and a conspiracy
to deprive equal protection of the law under Title VII and 42 U.S.C. §§ 1981, 1983,
1985(3). Godoy asserts the district court erred by granting the Defendants’ motion
for summary judgment and abused its discretion by denying his motion for
reconsideration. The district court did not err or abuse its discretion, and we
affirm.2
I. DISCUSSION
As an initial matter, Ҥ 1983 contains the sole cause of action against state
actors for violations of § 1981.” Butts v. County of Volusia, 222 F.3d 891, 892
(11th Cir. 2000). Thus, the district court did not err in dismissing Godoy’s claims
1
This opinion will refer to all seven defendants collectively as “Defendants,” to the
Habersham County Board of Commissioners as “County Board,” and to the five named
individuals (Berry, Cain, Davey, Tyler, and Garrett) collectively as “individual Defendants.”
2
We conduct a de novo review of a district court’s order granting summary judgment,
“applying the same legal standards as the district court.” Chapman v. AI Transp., 229 F.3d 1012,
1023 (11th Cir. 2000) (en banc). We review a district court’s denial of a motion for
reconsideration for an abuse of discretion. Fla. Ass'n of Rehab. Facilities, Inc. v. Fla. Dep't of
Health & Rehab. Servs., 225 F.3d 1208, 1216 (11th Cir. 2000).
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under § 1981. Godoy also raised his claims under Title VII and § 1983 and, as
these claims have the same elements of proof and analytical framework, they will
be discussed concurrently. See Stallworth v. Shuler, 777 F.2d 1431, 1433 (11th
Cir. 1985) (stating where a plaintiff predicates liability under Title VII on disparate
treatment and also claims liability under § 1983, “the legal elements of the claims
are identical”).
A. Failure to Hire
Godoy asserts the Defendants’3 initial failure to hire him constituted an
adverse employment action even though he was hired ten days later. He maintains
he suffered a monetary loss because of the delay in his start date. Godoy further
contends he was not hired because the Defendants changed some of the candidates’
test scores and, as the Defendants did not offer a nondiscriminatory reason for this
action, he is entitled to a presumption of discrimination.
“Whether an employer intentionally discriminated against an employee or
potential employee is a question of fact, which may be proved either through direct
or circumstantial evidence.” EEOC v. Joe’s Stone Crabs, Inc., 296 F.3d 1265,
3
There is some disagreement among the parties over whether the County Board is a
proper defendant, whether Habersham County can be liable for Fire Chief Berry’s decision to
terminate Godoy, and whether the individual Defendants are entitled to immunity. As the
opinion concludes none of Godoy’s claims survive summary judgment on their merits, we do not
determine which Defendants are liable under which claims.
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1272 (11th Cir. 2002). Absent direct evidence of an employer’s discriminatory
motive, a plaintiff may establish his case through circumstantial evidence, using
the burden-shifting framework established by the Supreme Court in McDonnell
Douglas Corp. v. Green, 93 S. Ct. 1817 (1973). Joe’s Stone Crabs, Inc., 296 F.3d
at 1272. Under this framework, the plaintiff first must establish a prima facie case
of discrimination, which creates a rebuttable presumption of discrimination. Id. In
an action alleging discrimination through failure-to-hire, the plaintiff establishes a
prima facie case by showing the following:
(1) he was a member of a protected class; (2) he applied and was
qualified for a position for which the defendant was accepting
applications; (3) despite his qualifications, he was not hired; and
(4) after his rejection the position remained open or was filled by a
person outside his protected class.
Schoenfeld v. Babbitt, 168 F.3d 1257, 1267 (11th Cir. 1999).
The Defendants ultimately hired Godoy for the position he sought after
initially rejecting his application. Therefore, Godoy cannot establish a prima facie
case of discrimination through failure-to-hire. Additionally, Godoy did not
provide evidence the ten-day delay between the initial rejection and the subsequent
offer adversely affected his employment. To the extent the evidence showed
Godoy did not receive his pay for the first three days of his employment because of
the delay, the Defendants subsequently compensated Godoy for the three days, and
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Godoy did not provide evidence that the delay of three-days’ pay caused him
financial harm.
Moreover, the alleged action taken by the Defendants to alter hiring test
scores of other candidates did not result in an adverse employment action because
the Defendants ultimately hired Godoy and, as previously discussed, any resulting
delay in hiring Godoy did not constitute an adverse action. Therefore, we conclude
the district court did not err in granting summary judgment in favor of the
Defendants on Godoy’s failure-to-hire claim.
B. Hostile Work Environment
Godoy asserts he was submitted to a hostile work encounter almost every
shift, and that this harassment caused him emotional distress. Godoy maintains he
was battered by his supervisor, who told him to “[g]o back to his boat and sail to
South America[] where he belongs.” Godoy alleges he was subject to racial slurs
“almost every shift” and received a threatening phone call.
The employee has the burden of proving a hostile work environment.
Edwards v. Wallace Cmty. College, 49 F.3d 1517, 1521 (11th Cir. 1995). To
establish a hostile work environment, a plaintiff must demonstrate: (1) he belongs
to a protected group; (2) he has been subjected to unwelcome harassment; (3) the
harassment was based on the protected characteristic; (4) the harassment was
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sufficiently severe or pervasive to alter the terms and conditions of employment
and thus create a discriminatorily abusive work environment; and (5) the employer
is responsible for that environment under a theory of either direct or vicarious
liability. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.
2002). The following four factors are important in analyzing whether harassment
objectively altered an employee’s terms or conditions of employment: “(1) the
frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct
was physically threatening or humiliating, or a mere offensive utterance; and
(4) whether the conduct unreasonably interfere[d] with the employee’s job
performance.” Id. at 1276. The employee must present concrete evidence in the
form of specific facts, not just conclusory allegations and assertions. See Earley v.
Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990) (disparate treatment
case).
Viewing the evidence in the light most favorable to Godoy, he did not
present evidence he was subjected to harassment that objectively altered the terms
or conditions of his employment. Godoy presented evidence of only isolated
incidents of harassment and did not present evidence the incidents amounted to the
“extreme” level of discriminatory conduct required by Title VII. Additionally, he
did not present evidence indicating the frequency or pervasiveness of the
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derogatory comments he alleged were aimed at him, nor did he provide evidence
the comments unreasonably interfered with his job performance. Thus, we find no
evidence raising a genuine issue as to whether Godoy was subjected to harassment
based on his race or national origin that objectively altered the terms or conditions
of his employment. Therefore, we affirm the grant of summary judgment on this
claim.
C. Retaliatory Termination
Godoy asserts his termination was in retaliation for the complaint he filed
with the EEOC when the Defendants initially failed to hire him.4 Godoy also
claims the Defendant’s assertion that he was fired for insubordination is pretext for
discrimination.
Retaliation is a separate offense of Title VII, and the plaintiff need not prove
the underlying claim of discrimination for the retaliation claim to be successful.
Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 586 (11th Cir. 2000). To establish a
prima facie case of retaliation under Title VII, the plaintiff must show: (1) he
4
On appeal, Godoy also contends the Defendants retaliated against him by: (1) not
graduating him from rookie school; (2) barring him from a normal firefighter schedule; and (3)
not granting him a full set of firefighter duties. In his complaint and throughout the district court
proceedings, Godoy limited his retaliation argument to his termination. Thus, to the extent
Godoy is raising these as separate retaliation claims for the first time on appeal, we do not
consider these arguments. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331-
32 (2004) (stating this Court considers issues raised for the first time on appeal only in limited
circumstances).
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participated in an activity protected by Title VII; (2) he suffered an adverse
employment action; and (3) there is a causal connection between the participation
in the protected activity and the adverse employment action. Id. at 587.
As in a racial discrimination case, once a plaintiff who asserts a Title VII
retaliation claim establishes his prima facie case, the employer then has the burden
of production to establish a legitimate, nondiscriminatory reason for its actions.
Sullivan v. Nat’l R.R. Passenger Corp., 170 F.3d 1056, 1059 (11th Cir. 1999). If
the employer satisfies its burden, thus rebutting the presumption of retaliation, the
plaintiff must then demonstrate the employer’s reason is a pretext for retaliatory
conduct. Id.
Even assuming Godoy provided sufficient evidence of a prima facie case of
retaliation, the Defendants proffered a legitimate nondiscriminatory reason for
Godoy’s termination–insubordination. Godoy did not present evidence that this
reason was pretext. Therefore, we affirm the district court’s grant of summary
judgment to the Defendants on Godoy’s retaliatory termination claim.
D. Conspiracy
Godoy contends the individual Defendants acted pursuant to a general
animus against firefighter candidates that were not white Americans. To establish
a cause of action under § 1985(3), the plaintiff must show the following elements:
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(1) a conspiracy; (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws; and (3) an
act in furtherance of the conspiracy; (4) whereby a person is either
injured in his person or property or deprived of any right or privilege
of a citizen of the United States.
Denney v. City of Albany, 247 F.3d 1172, 1190 (11th Cir. 2001). Additionally, a
§ 1985(3) claim requires “proof of invidious discriminatory intent” on the part of
the defendants. Trawinski v. United Techs., 313 F.3d 1295, 1299 (11th Cir. 2002).
As previously discussed, Godoy did not show how the Defendants’ initial
rejection of his candidacy for the position resulted in an injury. Additionally,
Godoy made only conclusory allegations regarding the individual Defendants’
discriminatory intent and provided no evidence supporting his allegations.
Therefore, we find that the district court did not err in granting the Defendants’
motion for summary judgment on this claim.
E. Motion for Reconsideration
Godoy asserts the district court abused its discretion in denying his motion
for reconsideration because the district court’s decision caused a manifest injustice
because his admissions and testimony stating that he began work on April 26,
2004, were inadvertently and negligently entered into the record. Godoy states this
factual question created a genuine issue of material fact because it could result in a
reasonable fact-finder returning a verdict in his favor.
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A district court abuses its discretion when it makes an error of law.
Quintana v. Jenne, 414 F.3d 1306, 1309 (11th Cir. 2005). Federal Rule of Civil
Procedure 60(b)(1) allows a party to move a court for relief from a final judgment
due to “mistake, inadvertence, surprise, or excusable neglect.” An individual
appealing a district court’s denial of relief under Rule 60(b) “must prove some
justification for the relief.” Cavaliere v. Allstate Ins. Co., 996 F.2d 1111, 1115
(11th Cir. 1993). Additionally, an appellant “cannot prevail simply because the
district court properly could have vacated its order. Instead, appellant must
demonstrate a justification so compelling that the court was required to vacate its
order.” Id. Godoy has not met his burden of demonstrating a reason “so
compelling” that the district court was “required” to vacate its order. Thus, the
district court did not err in denying Godoy’s motion for reconsideration.
II. CONCLUSION
The district court did not err in granting summary judgment on Godoy’s
claims under Title VII and §§ 1981, 1983, and 1985(3), and did not abuse its
discretion in denying Godoy’s motion for reconsideration.
AFFIRMED.
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