[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 1, 2009
No. 09-11283 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00135-CV-4-RH-WCS
CEASAR WHITE, JR.,
Plaintiff-Appellant,
versus
FLORIDA DEPARTMENT OF HIGHWAY SAFETY
& MOTOR VEHICLES,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(September 1, 2009)
Before EDMONDSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Ceasar White, Jr., proceeding pro se, appeals from the district court’s order
granting summary judgment to the Florida Department of Highway Safety and
Motor Vehicles (“FDHSMV”) on his racial discrimination failure-to-hire and
unlawful retaliation claims. For the reasons set forth below, we affirm.
I.
White, an African American, filed this pro se employment discrimination
action against FDHSMV, pursuant to Title VII of the Civil Rights Act of 1964.1
He generally alleged that FDHSMV discriminated against him on the basis of race
by failing to hire him as a Florida State Trooper. White subsequently filed a
second amended complaint, in which he alleged that, in response to filing this
lawsuit, FDHSMV retaliated against him by refusing to allow him to re-apply for
the position.
After approximately two years of litigation, the parties each filed a motion
for summary judgment. In his motion, White asserted, inter alia, that several white
males were hired by FDHSMV, despite adverse information in their backgrounds.
Specifically, he asserted that some individuals had credit issues, some had arrest
records or driving records, some had been terminated from past employment, some
had poor military records, some had drug problems, and others lacked education
1
Although White also invoked the Age Discrimination in Employment Act in his original
complaint, he later voluntarily dismissed that claim.
2
and experience.
Relying on White’s employment application and admissions in his
deposition testimony, FDHSMV responded by emphasizing the significant adverse
information in White’s own background, including the facts that he: was
disciplined while in the Marine Corps three times under Article 15 of the Uniform
Code of Military Justice for disobeying orders and convicted by Court Martial on
the fourth such charge; was dismissed from the Mississippi Highway Patrol
Academy based on his attitude; “fixed” traffic tickets and asked other officers to do
the same; had been involved in several traffic accidents and received several
vehicular citations; had financial problems; and omitted information on his
employment application. As a result, FDHSMV argued that White had not made
out a prima facie case on his racial discrimination claim because he did not point to
any similarly situated non-minority individuals who were hired. In this respect, it
relied on an affidavit by a Lieutenant Castleberry, indicating that FDHSMV did not
hire White due to the numerous issues in his background.
The magistrate ultimately issued a report, recommending that summary
judgment be granted in FDHSMV’s favor. With respect to White’s racial
discrimination claim, the magistrate found that White failed to make out a
prima facie case because he could not show that any similarly situated
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non-minority applicant was treated differently. In this regard, the magistrate found
that, while White presented evidence “that particular persons had issues with credit
problems, an arrest or criminal history, a problem in the military, no college degree
and the like,” he had not “pointed to one person” who was hired that had the same
“number of problems in [as] many areas” as he had. Alternatively, the magistrate
also concluded that, in light of White’s background, FDHSMV had legitimate,
non-discriminatory reasons for not hiring him, none of which were shown to be
pretextual. The magistrate also dismissed White’s retaliation claim on the ground
that White had failed to exhaust his administrative remedies, as the events giving
rise to the claim occurred after the commencement of the instant lawsuit.
Overruling White’s objections, the district court adopted the magistrate’s report
and granted summary judgment to FDHSMV.
II.
We review the grant of summary judgment de novo. Rioux v. City of
Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008). “Summary judgment is
rendered ‘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 a judgment as a matter of
law.’” Id. (quoting Fed.R.Civ.P. 56(c)). “In making this assessment, the Court
4
must view all the evidence and all factual inferences reasonably drawn from the
evidence in the light most favorable to the nonmoving party, and must resolve all
reasonable doubts about the facts in favor of the non-movant.” Id. (quotations and
citations omitted).
“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.’”
McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir.) (quoting 42 U.S.C.
§ 2000e-2(a)), cert. denied, 129 S.Ct. 404 (2008). Where, as in this case, there is
no direct evidence of discrimination, the plaintiff is required to “prove
discrimination through circumstantial evidence, using the burden-shifting
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S.Ct. 1817, 36 L.Ed.2d 668 (1973).” Id.
A plaintiff may establish a prima facie case of racial discrimination by
showing that: 1) he belongs to a protected class; 2) he was qualified to do the job;
3) he was subjected to an adverse employment action; and 4) his employer treated
similarly situated employees outside his class more favorably. Crawford v.
Carroll, 529 F.3d 961, 970 (11th Cir. 2008). “Under this framework, if the
plaintiff establishes a prima facie case, the burden shifts to the employer to
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articulate some legitimate, nondiscriminatory reason for the adverse employment
action.” Id. at 976 (quotation omitted). “If the employer does this, the burden
shifts back to the plaintiff to show that the employer’s stated reason was a pretext
for discrimination.” Id. “A reason is not [a] pretext for discrimination unless it is
shown both that the reason was false, and that discrimination was the real reason.”
Brooks v. County Com’n of Jefferson County, Ala., 446 F.3d 1160, 1163 (11th
Cir. 2006) (quotation omitted).
III.
White’s only argument on appeal attacking the merits of the district court’s
summary judgment order is that FDHSMV “hired individuals outside [his]
protected class that had greater background issues” than he did.2 For support,
White asserts, as he did below, that there were “individuals that had arrest records,
individuals that had actually been disciplined as law enforcement officers,
individuals with drug use issues, individuals that had bankruptcy issues, and
finally, individuals that were not even qualified to perform the job.”
However, White’s assertion is insufficient to make out a prima facie case of
discrimination, as he has not identified any non-minority individual who was hired
2
White has abandoned any argument on appeal challenging the dismissal of his unlawful
retaliation claim. See Horsley v. Feldt, 304 F.3d 1125, 1128, 1131 n.1 (11th Cir. 2001) (arguments
not raised by a pro se litigant on appeal are abandoned).
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with a background “nearly identical” to his. See Maniccia v. Brown, 171 F.3d
1364, 1368 (11th Cir. 1999) (“We require that the quantity and quality of the
comparator’s misconduct be nearly identical . . . .”). As the district court correctly
explained, this is so because, while White may have shown that some non-minority
individuals had isolated issues in their backgrounds, he failed to identify any such
individual that had the same “number of problems in [as] many areas” as he had.
For this same reason, the district court also correctly found that, even assuming
arguendo that White did make out a prima facie case of discrimination, he failed to
show that FDSHMV’s legitimate, non-discriminatory reason for failing to hire him
– the adverse information in his background – was a pretext for discrimination.
See Silvera v. Orange County School Bd., 244 F.3d 1253, 1259-62 (11th Cir.
2001). Accordingly, we affirm the grant of summary judgment to FDHSMV.3
AFFIRMED.
3
White also raises a number of miscellaneous arguments in his brief relating to the
underlying litigation, but we conclude that they are all plainly without merit.
7