[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
May 6, 2008
No. 07-15809 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00035-CV-ORL-19DAB
CHRISTOPHER B. HOWARD,
Plaintiff-Appellant,
versus
OREGON TELEVISION, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 6, 2008)
Before BIRCH, DUBINA and CARNES, Circuit Judges.
PER CURIAM:
Christopher Howard, an African-American male proceeding pro se, appeals
the district court’s grant of summary judgment to his former employer, Oregon
Television, Inc., in his race discrimination suit brought under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-2, and the Florida Civil Rights Act, Fla.
Stat. § 760.10. Howard’s complaint alleges that he was unlawfully terminated
from his position as an accountant for Oregon Television based on his race.
Oregon Television filed a motion for summary judgment, and the district court
granted it, concluding that Howard had failed to make out a prima facie case of
discriminatory discharge. Howard contends that the district court erred by
concluding that he had not established a prima facie case of discriminatory
discharge because, according to him, he has shown that similarly situated
employees were treated differently based on race.1
We review de novo a district court’s grant of summary judgment, applying
the same legal standards used by the district court. Johnson v. Bd. of Regents of
Univ. of Ga., 263 F.3d 1234, 1242 (11th Cir. 2001). We draw all factual
inferences in a light most favorable to the non-moving party. Id. at 1243.
Summary judgment is appropriate where “there is no genuine issue as to any
material fact and . . . the moving party is entitled to judgment as a matter of law.”
1
Howard attached to his appellate brief an affidavit and a case summary from another
case, which were not presented to the district court. We will not address these documents
because they are not part of the record and are therefore not properly before us. Holly v.
Clairson Indus., L.L.C., 492 F.3d 1247, 1258 n.12 (11th Cir. 2007).
2
Fed. R. Civ. P. 56(c). “Speculation does not create a genuine issue of fact.”
Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (citation omitted).
We have stated that “the plain language of Rule 56(c) mandates the entry of
summary judgment against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which
that party will bear the burden of proof at trial.” Johnson, 263 F.3d at 1243
(citations and alteration omitted).
Title VII and the Florida Civil Rights Act both prohibit an employer from
discharging an individual based on his race. 42 U.S.C. § 2000e-2(a)(1); Fla. Stat.
§ 760.10(1)(a). Claims under Title VII and the FCRA are analyzed under the same
burden-shifting framework, and accordingly decisions construing Title VII are also
applicable to claims under the FCRA. See Harper v. Blockbuster Entertainment
Corp., 139 F.3d 1385, 1387 (11th Cir. 1998) (“The Florida courts have held that
decisions construing Title VII are applicable when considering claims under the
Florida Civil Rights Act, because the Florida act was patterned after Title VII. No
Florida court has interpreted the Florida statute to impose substantive liability
where Title VII does not.” (internal citations omitted)).
Under Title VII, the plaintiff “bears the ultimate burden of proving
discriminatory treatment by a preponderance of the evidence.” Earley v.
3
Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990). Absent direct
evidence of an intent to discriminate, a plaintiff may prove his case through
circumstantial evidence by using the burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), and
Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct.
1089 (1981).
Under that burden-shifting framework, a plaintiff must demonstrate a prima
facie case of discrimination, and if successful, the burden then shifts to the
employer to rebut a presumption of discrimination by producing evidence that its
action was taken for a legitimate, non-discriminatory reason. Equal Employment
Opportunity Comm’n v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir.
2002). If the employer meets its burden of production, “the plaintiff must show
that the proffered reason really is a pretext for unlawful discrimination.” Id. at
1273. A plaintiff establishes pretext by showing that “the employer has not given
an honest explanation for the employer’s behavior.” Damon v. Fleming
Supermarkets of Fla., Inc., 196 F.3d 1354, 1363 n.3 (11th Cir. 1999).
A plaintiff establishes a prima facie case of discriminatory discharge by
showing that: (1) he was a member of a protected class; (2) he was qualified for the
job from which he was discharged; (3) he was discharged; and (4) he was replaced
4
by a person outside his protected class or was treated less favorably than a
similarly situated individual outside his protected class. See Maynard v. Bd. of
Regents of Div. of Univ. of Fla. Dep’t of Educ., 342 F.3d 1281, 1289 (11th Cir.
2003). Employees are similarly situated when they are accused of the same or
similar conduct. Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1259 (11th
Cir. 2001). The conduct must be nearly identical “to prevent courts from
second-guessing employers’ reasonable decisions and confusing apples with
oranges.” Id. (citations omitted) (holding that although two employees had arrests
for assaulting a child, they were not similarly situated because one had three
additional arrests for violent assaults).
In this case, the parties agree that Howard has made out the first three
elements of a prima facie case, and all that is at issue is whether he was treated less
favorably than a similarly situated employee outside his protected class. Howard
was notified in writing five times over a two-year period that he was making
unacceptable mistakes and that his performance was deficient. Howard contends
that two white employees, Marisol Colon and Cathy McCurdy, made similar
mistakes but were not disciplined or terminated. However, he has not shown that
these women were similarly situated to him.
Colon had a history of positive performance reviews and received a negative
5
performance review once for a single mistake, whereas Howard had been notified
of repeated mistakes and deficiencies with his performance and failed to correct
these problems. With respect to McCurdy, after she was informed that her
performance was deficient in one area and was disciplined for that conduct, she
improved her performance, whereas Howard’s mistakes and deficiencies
continued. Howard has therefore not shown that a similarly situated employee
outside his protected class was treated more favorably. See id. Accordingly, we
affirm the district court’s grant of summary judgment to Oregon Television.
AFFIRMED.
6