[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 4, 2008
No. 08-11438 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00136-CV-4-RH-WCS
CAESAR WHITE, JR.,
Plaintiff-Appellant,
versus
DEPARTMENT OF TRANSPORTATION
STATE OF FLORIDA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(September 4, 2008)
Before TJOFLAT, BLACK and FAY, Circuit Judges.
PER CURIAM:
Caesar White, Jr., an African American proceeding pro se, appeals the
district court’s grant of the State of Florida Department of Transportation’s
(“DOT”) motion for summary judgment on White’s complaint alleging failure to
hire based on his race and color, pursuant to Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et. seq., (“Title VII”). For the reasons set forth below,
we affirm.
I.
In a Title VII complaint, White alleged that he submitted an application to
the DOT’s Motor Carrier Compliance Office (“MCCO”) for a position as a Law
Enforcement Compliance Officer. The MCCO mailed him a “conditional offer of
employment” and a notice to report for polygraph testing. He “passed” the
polygraph test, and the administering officer informed him that he would be
notified shortly of the next step in the hiring process. Approximately one month
later, however, the MCCO’s recruiter contacted White and requested that White
submit a certain document. Although White already had submitted the document
with his application, he complied. Approximately two weeks later, another officer
contacted White and requested the same document. White again complied.
Thereafter, he did not hear anything from the MCCO “for months.” He made
telephone calls, wrote letters, and sent emails to the MCCO for information on the
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delay in the hiring process, but received no return communication. When the
MCCO extended its conditional offer of employment, it was not aware of White’s
race or color. When White reported for polygraph testing, however, the MCCO
became aware of his race and color and, thereafter, ceased communication.
Accordingly, White filed a charge of discrimination against the MCCO with a state
agency. The MCCO then sent White a letter stating that he was ineligible for the
position he sought, indicating that it had misplaced the original notice of
disqualification and was re-sending a copy, and explaining that White was not
hired because his polygraph test revealed that he was not qualified for the position
in question. White argued that, based on these facts, it was evident that the
MCCO, upon learning of White’s race and color, decided not to hire him and used
“intentional delaying tactics” and “pretext[ual]” reasons to mask its discrimination.
The DOT filed a motion for summary judgment, pursuant to Fed.R.Civ.P.
56(c), arguing that White could not make a prima facie showing of racial
discrimination because he was not qualified for the position in question and could
not point to a similarly situated applicant outside his protected class who was
treated more favorably. White was not hired because his polygraph test answers
revealed that he had been dismissed from the Mississippi Highway Patrol training
school because “he did not possess the right attitude to be a trooper” and had been
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disciplined three times by, and ultimately received a court martial for disobeying
lawful orders from, the U.S. Marine Corps. Also, the MCCO previously had not
hired 7 Hispanics, 26 whites, and 2 others because of their work histories, or 1
Hispanic and 2 whites because of their military discipline histories.
Along with its motion for summary judgment, the DOT submitted, inter alia,
the affidavit of Major Vicki Cutcliffe, the Chief of Law Enforcement Support for
the MCCO. Therein, Cutcliffe stated that her position involved helping to make
hiring decisions for the MCCO. The MCCO’s hiring process involved the
following steps: (1) the potential employee submitting an initial application, (2) the
MCCO extending a conditional offer of employment, (3) the potential employee
undergoing polygraph testing, and (4) the MCCO reviewing the polygraph test,
with the help of an “Automatic Disqualification List,” and determining wether the
potential employee was qualified. This process was “strictly followed with all
applicants without exception,” even when a potential employee included
information in his initial application that could disqualify him from MCCO
employment. This was because the polygraph test could reveal additional
information, not apparent from the initial application, that the MCCO would need
to take into account.
Cutcliffe also stated that the MCCO’s recruitment office asked White to
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submit an initial application as part of its qualified minority recruitment efforts. In
White’s initial application, he noted his race and included a photograph of himself.
Thus, the MCCO knew of White’s race and color, and nevertheless sought to
employ him, during the entire hiring process. When White submitted his initial
application, he noted therein details regarding his training school and military work
history, such that the MCCO became aware of these potentially disqualifying
characteristics. The MCCO nevertheless sent him a conditional-offer letter, in
keeping with protocol. In the letter, White was warned that his actual employment
was contingent on passing to the satisfaction of the MCCO the polygraph test.
After reviewing White’s polygraph test, the MCCO decided not to hire him
because his past disciplinary issues rendered him unqualified for DOT employment
pursuant to the Automatic Disqualification List.
The DOT further submitted: (1) White’s initial application, which included a
picture of White and in which White indicated that he was “dropped” from the
Mississippi Highway Patrol training school because he did not have the right
attitude to be a state trooper and was disciplined three times and ultimately
honorably discharged from the U.S. Marine Corps; (2) White’s polygraph test,
showing that he indicated that he was accepted into the Mississippi Highway Patrol
training school as part of its minority recruitment efforts, was asked his opinion on
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the treatment of the black trainees, and was released when his superiors did not like
his truthful answers, and that he was honorably discharged from the U.S. Marine
Corps after being acquitted of disobeying a lawful order, but convicted on “lesser
charges” related to uniform infractions; (3) the MCCO’s Automatic
Disqualification List, stating that (a) “[a]pplicants who have received a discharge
from any of the Armed Forces of the United States for unsuitability, unfitness, or
other misconduct reasons under honorable conditions may be evaluated for job
related behavior and may be disqualified where the discharge indicates factors that
may adversely affect job performance,” (b) “[o]ther factors relating to work
history, compliance with law and similar job-related areas may be considered in
evaluating the applicant’s fitness for employment,” and (c) “[d]isciplinary action in
prior employment, the military, or educational institutions for behavior that would
be either a criminal act or other major violation of [DOT] disciplinary standards
will be a basis for evaluation;” (4) a list of law enforcement officers hired by the
MCCO in the year of White’s application, indicating that the MCCO hired 17
whites, 3 Hispanics, and 1 black during this time; and (5) a list of applicants
rejected by the MCCO in the year of White’s application, indicating that the
MCCO rejected 26 whites, 7 Hispanics, 2 others, and 25 blacks because of their
“Work History” and rejected 2 whites and 1 Hispanic because of their “Military
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Record” during his time. White filed a cross-motion for summary judgment,
arguing that he was qualified for the position in question and that the MCCO’s
proffered reasons for its hiring decision were pretextual.
The magistrate recommended granting the DOT’s motion for summary
judgment and denying White’s cross motion for summary judgment. The
magistrate reasoned that White’s dismissal from the Mississippi Highway Patrol
training school because he did not have the proper attitude to be a state trooper and
discipline by the U.S. Marine Corps because he disobeyed lawful orders, facts that
White did not dispute, constituted a valid basis for rejecting White’s employment
application. Accordingly, White was not qualified for the position. Also, the
record demonstrated that 26 white applicants were rejected based on their work
histories and 2 white applicants were rejected based on their military histories.
Accordingly, White was not treated differently from non-minorities. Therefore,
White could not establish a prima facie case of discrimination, and the question of
whether the MCCO’s proffered reasons for his hiring decisions were pretextual
was moot. White objected to the report and recommendation and reiterated
previous arguments. The district court conducted a de novo review of the issues
raised by White and accepted and adopted the magistrate’s report and
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recommendation.1
II.
We review the district court’s order granting summary judgment de novo.
Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1357 (11th
Cir.1999). Such a grant of summary judgment is appropriate only “where there is
no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law.” Id. at 1358 (citing Fed.R.Civ.P. 56(c)). In determining whether
summary judgment is appropriate, we review the record and draw all reasonable
inferences in the light most favorable to the non-moving party. Id.
Title VII prohibits employers from discriminating “against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)(1). In reviewing Title VII claims of racial discrimination
supported by circumstantial evidence, we use the framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973). Under that framework, the plaintiff has the burden of establishing a prima
facie case of racial discrimination. Id. at 802, 93 S.Ct. at 1824. To meet this
1
White argues on appeal that the district court committed reversible error in failing to
address his objections to the report and recommendation. This argument is without merit, as the
district court plainly stated that it had conducted a de novo review of the issues raised.
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initial burden, the plaintiff must show, by a preponderance of the evidence, that:
(1) he belongs to a protected class; (2) he was subjected to an adverse employment
action; (3) his employer treated similarly situated employees outside his
classification more favorably; and (4) he was qualified to do the job. See Holifield
v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (considering racial discrimination).
If the plaintiff successfully establishes a prima facie case, there is a presumption of
discrimination. McDonnell Douglas Corp., 411 U.S. at 802-803, 93 S.Ct. at 1824.
The burden then shifts to the defendant to rebut this presumption by articulating a
legitimate, non-discriminatory reason for the complained-of action. Id. If the
defendant fails to meet this burden, then we must award judgment to the plaintiff
as a matter of law. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509, 113 S.Ct.
2742, 2748, 125 L.Ed.2d 407 (1993). If the defendant meets this burden, then the
burden shifts to the plaintiff to show that the articulated reason was a pretext for
discrimination. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56,
101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981).
III.
The district court did not err in granting the DOT’s motion for summary
judgment. See Damon, 196 F.3d at 1357. White failed to establish a prima facie
case of racial discrimination. See McDonnell Douglas Corp., 411 U.S. at 802, 93
9
S.Ct. at 1824. The parties do not dispute that White belonged to a protected class
or suffered an adverse employment action. See Holifield, 115 F.3d at 1562.
White did not, however, demonstrate that he was qualified for the position. See id.
The MCCO’s Automatic Disqualification List stated that the MCCO should
consider an applicant’s work history, discharge from the military, and discipline
history in determining if the applicant was qualified for MCCO work. In his initial
application and during his polygraph test, White indicated that he had been
dismissed from the Mississippi Highway Patrol training school because of his
attitude and was disciplined by the U.S. Marine Corps. Given these answers, the
MCCO could have found that White was not qualified for the position in question
under its Automatic Disqualification List. Because White was not qualified for the
position, he could not establish a prima facie case of racial discrimination, and the
issues of whether the MCCO treated similarly situated applicants outside his
protected class more favorably or whether the MCCO’s proffered reason for its
hiring decision was pretextual are moot. See Holifield, 115 F.3d at 1562. Texas
Dep’t of Cmty. Affairs, 450 U.S. at 255-56, 101 S.Ct. at 1094. We note, though,
that, because the MCCO knew of White’s race and color from his initial
application, any argument that it allowed him to proceed only because it believed
him to be white at the time is without merit. Accordingly, the district court did not
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err in granting the DOT’s motion for summary judgment. See Damon, 196 F.3d at
1357.
We note that White also argued before the district court, and on appeal, that
the only reason he could not demonstrate that similarly situated applicants outside
his protected class were treated more favorably than him was because the DOT
refused to produce the polygraph tests of previous applicants and the magistrate
refused to compel the DOT to do so. Indeed, White argues on appeal that the
magistrate’s treatment of the issue constituted reversible error. The record
demonstrates that White filed a motion to compel the DOT to produce these
materials. The magistrate initially denied the motion, but, on White’s motion for
reconsideration, ordered the DOT to produce redacted copies of the 124 previously
administered polygraph tests if White paid the costs of redacting and copying by a
certain date. White notified the DOT that he only would pay for copying and
redacting the polygraph tests for those applicants outside his protected class who
ultimately were hired, and sent a money order for this amount. The DOT
responded that the money order was deficient and that it would not produce the
polygraph tests. The magistrate did not abuse his discretion in his treatment of the
motion to compel, as its order was reasonable. See Hinson v. Clinch County,
Georgia Bd. of Educ., 231 F.3d 821, 826 (11th Cir. 2000) (regarding a complaint
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brought under Title VII and holding that we review denials of a plaintiff’s motion
to compel discovery for abuse of discretion); Holloman v. Mail-Well Corp., 443
F.3d 832, 837 (11th Cir. 2006) (regarding a complaint brought under the Employee
Retirement Income Security Act and holding that “a district court is allowed ‘a
range of choice’” and we “will not second-guess the district court’s actions unless
they reflect a ‘clear error of judgment’”). Also, because the polygraph tests only
would be relevant to showing that similarly situated applicants were treated more
favorably, and this point is moot, as discussed above, any error resulting from the
DOT’s refusal to produce the documents was harmless. Because the district court
did not err in this manner and did not abuse its discretion in granting the DOT’s
motion for summary judgment, we affirm.2 See Damon, 196 F.3d at 1357.
AFFIRMED.
2
White further argued on appeal that the magistrate erred in granting the DOT extra time
to file a statement of disputed facts that it forgot to file with its motion for summary judgment.
Any error committed by the magistrate in doing so also was harmless, as the DOT’s statement of
disputed facts stated simply that the DOT disagreed with White’s statement of the facts.
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