[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-11536 ELEVENTH CIRCUIT
MARCH 6, 2006
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 04-00374-CV-F-S
JERRY LEE CARTER,
Plaintiff-Appellant,
versus
TOBY BOWMAN,
COMMUNICATION SERVICE, INC.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(March 6, 2006)
ON PETITION FOR REHEARING
Before ANDERSON, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
We vacate our prior opinion in this case filed on December 9, 2005, and
substitute in its place the following opinion.1
Jerry Lee Carter appeals pro se the district court’s grant of summary
judgment to the defendants, Toby Bowman and Communications Services, Inc.
(collectively, “CSI”), on his civil action alleging disparate treatment on the basis
of race pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.
We affirm.
Carter worked for CSI installing cable and telephone lines. When he began
his employment, Carter was informed of and agreed to abide by CSI’s substance
abuse policy, which required all employees who reported an on-the-job injury to
submit to a drug test. Carter acknowledged that his employment was conditioned
upon his willingness to submit to drug testing, and that if he failed to submit to or
cooperate with any such testing, this would result in disciplinary action including
termination.
Carter was struck by lightning while working for CSI. He immediately
reported the accident to CSI and was taken to an occupational health clinic. At the
clinic, he was told he needed to take a drug test pursuant to CSI’s substance abuse
policy. Carter was informed that if he failed to submit to a drug test, he would
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The petition for rehearing is granted.
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jeopardize his employment. Carter left the clinic without taking a drug test and
went to an emergency room instead. Carter never took a drug test at the
emergency room, nor was he was treated at the emergency room.
The following day, CSI terminated Carter’s employment pursuant to the
policy because it believed he refused to submit to a drug test. In his complaint,
Carter alleged that he was discriminated against because similarly-situated
employees outside his protected class were not required to submit to drug testing
after reporting work-related injuries.
On appeal, Carter argues there are facts in dispute that merit the denial of
summary judgment. Carter argues that, despite Bowman’s statement to the
contrary, he never refused to take a drug test. He explains he did not take a drug
test in a reasonable time after the accident because he was terminated the day after
his accident. Furthermore, Carter submits that one month before he was
terminated, Bowman commented that Carter's brother must be a drug dealer
because he was driving an expensive vehicle. Carter argues that this is direct
evidence of discrimination. He submits that this direct evidence makes CSI's
proffered explanation for his termination unworthy of belief, and therefore, he
does not need any more evidence to prove discrimination.
“We review a grant of summary judgment de novo, using the same legal
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standard as the district court.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1184
(11th Cir. 1997). Summary judgment is proper if the pleadings, depositions, and
affidavits “show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986)
(quoting Fed. R. Civ. P. 56(c)). “There is a genuine issue of material fact if the
nonmoving party has produced evidence such that a reasonable factfinder could
return a verdict in its favor.” Waddell v. Valley Forge Dental Assocs., Inc., 276
F.3d 1275, 1279 (11th Cir. 2001). The evidence, and all inferences drawn from the
facts, must be viewed in the light most favorable to the non-moving party.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.
Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986). The non-moving party must make a
sufficient showing on each essential element of the case for which he has the
burden of proof. Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2552.
Title VII prohibits discrimination on the basis of race color, religion, sex or
national origin in various employment practices. 42 U.S.C. § 2000e-2; Bass v. Bd.
of County Comm’rs, Orange County, Fla., 256 F.3d 1095, 1103 (11th Cir. 2001).
Plaintiffs bear the burden of proving the employer’s unlawful discrimination.
Hinson v. Clinch County, Ga. Bd. of Educ., 231 F.3d 821, 827 (11th Cir. 2000). A
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plaintiff may establish a claim through the introduction of direct evidence or
circumstantial evidence that creates an inference of discrimination. Id. For direct
evidence, “[o]nly the most blatant remarks, whose intent could be nothing other
than to discriminate on the basis of race constitute direct evidence of
discrimination.” Bass, 256 F.3d at 1105 (internal quotations omitted). In
reviewing circumstantial evidence, we use the McDonnell Douglas/Burdine
framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36
L. Ed. 2d 668 (1973) and Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
101 S. Ct. 1089, 67 L. Ed 2d 207 (1981). Under this framework, the plaintiff must
first establish “a prima facie case of discrimination, which creates a rebuttable
presumption that the employer acted illegally.” Wilson v. B/E Aerospace, Inc.,
376 F.3d 1079, 1087 (11th Cir. 2004). The employer then bears the burden to
show a legitimate and non-discriminatory reason for the employment action. Id.
If this burden is met, then the presumption is rebutted and the burden shifts back
to the plaintiff to show the proffered reason was a pretext for discrimination. Id.
To establish a prima facie case for wrongful termination, the plaintiff must
prove that (1) he belongs to a protected class, (2) he was subject to an adverse
employment action, (3) the employer treated similarly-situated employees outside
his protected class more favorably, and (4) he was qualified for the job. Id. at
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1091 (citations omitted). To make a comparison to similarly-situated employees,
the plaintiff must show he is similarly-situated in all relevant respects to those
employees. Id. Furthermore, it is necessary to consider whether they are involved
in or accused of similar conduct and disciplined in different ways. Holifield v.
Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (per curiam).
Here, Carter argues that Bowman’s comment regarding Carter’s brother
constituted direct evidence of discrimination. However, Carter did not make this
argument in his response to CSI’s motion for summary judgment, his supplement
to his response, or in his objection to the magistrate’s recommendations. Carter
merely discussed the comment in his objection, but he did not argue that it was
direct evidence of discrimination. Arguments “not raised in the district court and
raised for the 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)
(citations omitted).
Using the McDonnell Douglas/ Burdine framework for establishing
circumstantial evidence of discrimination, Carter satisfied the first three prongs of
the prima facie case. He belongs to a protected class and he was subjected to an
adverse employment action when he was terminated. As to the third prong, Carter
must establish that CSI treated similarly-situated white employees more favorably.
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Viewing the facts most favorable to Carter, a reasonable person could find there
were three employees who were injured on-the-job, who reported the injury soon
thereafter, and were not required or asked to take a drug test. Therefore, in
analyzing the arguments as Carter framed the case, he raised a question of fact as
to his prima facie case.
However, CSI offered a legitimate, nondiscriminatory reason for Carter’s
termination, namely, his refusal to submit to the required drug test after Carter
reported his on-the-job injury. Carter offered insufficient evidence to indicate that
CSI’s proferred reason for terminating him was a pretext for discrimination.
Although Carter disputes that he refused to submit to the drug test, he did not
present any evidence that he submitted to a drug test at any time after the incident.
Consequently, Carter failed to rebut CSI’s assertion that he was terminated for
refusing to submit to a drug test.
Accordingly, the district court properly granted summary judgment to CSI.
Subsequent to our original review of this appeal, Carter filed a petition for
rehearing. In his petition for rehearing, Carter argued that he did take a drug test
at the emergency room. He submitted new evidence for us to review that the
district court never had the opportunity to examine and that is not a part of the
district court record. This new evidence consists of copies of Carter’s emergency
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room medical record, which indicates that he visited the emergency room on the
day of the accident, and that the medical staff were going to “check on need for
drug and alcohol testing.” Whether Carter actually did submit to a drug test at the
emergency room is a factual question, which we will not review on appeal. Our
precedent is clear:
[A]n issue not raised in the district court and raised for the first time
in an appeal will not be considered by this court. The reason for this
prohibition is plain: as a court of appeals, we review claims of
judicial error in the trial courts. If we were to regularly address
questions – particularly fact-bound issues – that district courts never
had a chance to examine, we would not only waste our resources, but
also deviate from the essential nature, purpose, and competence of an
appellate court.
See Access Now, Inc., 385 F.3d at 1331 (internal citations omitted).
AFFIRMED.
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