[DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________           FILED
                                                    U.S. COURT OF APPEALS
                                 No. 10-15749         ELEVENTH CIRCUIT
                             Non-Argument Calendar       AUGUST 1, 2011
                           ________________________        JOHN LEY
                                                            CLERK
                       D.C. Docket No. 1:09-cv-00260-RWS

MARK EAST,

                                                              Plaintiff-Appellant,

                                      versus


CLAYTON COUNTY, GEORGIA,
a Subdivision of the State of Georgia,
ALEX S. COHILAS,
Fire Chief, in His Official and Individual Capacity,

                                                           Defendants-Appellees.

                          ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________

                                 (August 1, 2011)

Before HULL, PRYOR and FAY, Circuit Judges.

PER CURIAM:
      Mark East, a firefighter in his forties, appeals the district court’s grant of

summary judgment to his former employer, Clayton County (the “county”), and

the Fire Chief of Clayton County, Alex Cohilas, (collectively “defendants”), as to

his age discrimination claim under the Age Discrimination in Employment Act of

1967, 29 U.S.C. § 621, et seq. (“ADEA”), and his procedural due process claim

under 42 U.S.C. § 1983. East was placed on unpaid administrative leave based on

allegations that he started rumors that Cohilas misused funds and the Assistant

Fire Chief, Jeff Hood, received a driving under the influence (“DUI”) charge. East

first argues that he submitted direct evidence of the Cohilas’s discriminatory intent

against him through the affidavits of other firefighters. Second, concerning

circumstantial evidence, East contends that he met the prima facie case for age

discrimination by presenting evidence that younger employees were treated more

favorably than him. Finally, East argues that, because his state remedy was

inadequate, he could pursue his procedural due process claim for a civil service

hearing under § 1983 in federal court. For the reasons set forth below, we affirm

the district court’s grant of summary judgment to the defendants as to these claims.

                                          I.




                                           2
      East began employment with the county as a firefighter on May 9, 1988, had

20 years of experience with the county fire department, and had attained the rank

of lieutenant by the time he was placed on administrative leave without pay on

February 14, 2008. As lieutenant, East was the highest ranking officer at his

station. He supervised five firefighters at Station Seven, C-shift, including

Sergeant Rodney Hakeem and Firefighter Duel Lee. East’s chain of command

included, in ascending order, Battalion Chief Jeff Thomas, Deputy Chief of

Operations Andy Condrey, Hood, and Cohilas.

      According to Hakeem, on January 12, 2008, East asked Hakeem if he “had

heard about ‘the Chiefs yet?’” Hakeem responded that he had not and walked

away. On January 15, 2008, Lee approached Hakeem and asked if he had heard

any rumors about Cohilas. East, overhearing their discussion, walked over and

voluntarily shared that Cohilas was due to be terminated as a result of misusing

funds and that Hood’s job was in peril due to a DUI charge. Later that same day,

East “gleefully” reported to Lee and Hakeem that “Car 1 and Car 2 are gone.”

Hakeem contacted a trusted officer in the department to verify East’s report that

Cohilas and Hood were terminated, was told it was false, and then confronted East

about it. However, East continued to assert that the rumor was true. Hakeem was

around 40 years old at the time these events occurred.

                                          3
      When Cohilas heard this information, he was particularly troubled that a

lieutenant would make such an untruthful statement to his subordinates and then

continue to insist that the lie was true. To Cohilas, such behavior from a

lieutenant “undermine[d] the credibility of the entire department.” He ordered an

investigation into East’s actions, but did not directly participate in the initial

interviews. On January 18, 2008, Hood, Condrey, and Thomas interviewed East

and his five crew members on Shift C to investigate the rumors. After reviewing

the progress of the investigation, Cohilas felt that East had made very specific

statements to Hakeem and Lee regarding the misuse of funds and DUI allegation,

and that East still had not definitively identified when or from whom he first

learned of these rumors.

      Cohilas, Condrey, Hood, and Thomas met with East again on February

14, 2008, to continue the investigation. According to Cohilas, at that meeting,

East told Cohilas that he had first heard the rumor about Cohilas from either

Sergeant David Wilson or retired officer Ray Banks. But Cohilas said that, when

pressed, “East was evasive and contradictory.” East also told Cohilas that he

could not recall discussing the rumor about Hood with either Wilson or Banks. He

admitted telling Hakeem and Lee that Hood had been terminated for a DUI charge,

but could not explain where he heard that rumor. Cohilas told East that he did not

                                            4
believe him, and it appeared that East was the only source of the specific rumor

about Hood allegedly receiving the DUI charge. Cohilas said that East did not

offer a defense in response. Cohilas placed East on temporary unpaid

administrative leave, during which East could use sick and annual leave time,

pursuant to Civil Service Rule 5.458, while Cohilas continued to investigate the

issue. East stated that he realized at that meeting that the command staff did not

believe him that he was not the source of the rumors. East admitted that his age

was never mentioned in any of the meetings concerning the investigation, and East

was not aware of Cohilas saying anything to him or anyone else about East’s age.

East was directed to return to work on February 26, 2008, but did not do so

because he wanted to seek medical attention about some problems he was

experiencing.

      According to a memorandum from Condrey to the file dated February 15,

2008, § 3.11.2 of the county fire department employee manual provided that “[n]o

member of the department shall knowingly or carelessly slander, make false

accusations about or repeat unsubstantiated rumors about other individuals,

violations of this rule may result in disciplinary action up to and including

termination.” Pursuant to Civil Service Rule 5.458, an employee who is accused

of a violation, which if true would likely result in suspension or dismissal, may be

                                          5
placed on unpaid administrative leave. Further, the rule provides that “[t]he

unpaid administrative leave shall remain in effect while the subject matter is under

investigation, however, the same shall not exceed four (4) weeks absent without

approval of the [county] Board [of Commissioners].”

      East sent a grievance letter to Renee Bright, the Human Resources Director

for the County Board of Commissioners, on February 18, 2008. The letter stated

that it was a “formal grievance” related to his unpaid administrative leave, that

hewas being “harassed” and “badgered and falsely accused” of circulating rumors,

and that he believed “his due process rights [were] being violated.” East requested

that the matter be investigated and that he “be placed on paid administrative leave

pending resolution of the matter.”

      On February 26, 2008, the personnel department received a note from East’s

doctor, stating that East could not return to work or communicate with anyone at

work, but not specifying when he would be able to return. On February 28, 2008,

East received a letter from the county’s personnel department stating that he was

placed on leave under the Family Medical Leave Act, starting on February

25, 2008.

      According to Bright, she interpreted East’s letter to be a grievance under

Civil Service Rule 11.200. She stated that a grievance procedure is intended to

                                          6
assist parties to resolve problems informally. Bright did not believe that pursuing

a grievance resolution was practical with East being out on medical leave

indefinitely and the fire department’s uncompleted investigation. It was Bright’s

understanding that Cohilas would not be able to complete the investigation until

East returned to work.

      Pursuant to Civil Rule 11.202, “[e]mployee grievances should, insofar as

possible, be [addressed] informally. However, it is recognized that there will be

occasional grievances which can be resolved only by means of a systematic review

conducted in accordance with the provisions of a formal grievance procedure.”

The formal procedure requires the employees to present their grievances first to

their immediate supervisor, then the department head, and then to the personnel

director only after they feel that those grievances have not been satisfactorily

heard or resolved at the previous levels. The rule further provides that “[i]f

necessary, an informal hearing may be held at which the aggrieved employee(s)

shall present their grievance(s) to the Board and the Personnel Director.”

      The evidence also included affidavits that East submitted from Wilson,

Banks, Keith Waller, and Leroy Travis, all of whom formerly worked for the

county fire department. Wilson stated that he was 55 years old and demoted for a

“common mistake” that had not been used as a reason for demotion before. He

                                          7
asserted that “[i]t was common knowledge that Chief Cohilas wanted the

‘youngest and best’ department, as he himself termed it.” Wilson noted that

Condrey and Battalion Chief Lowe questioned him about the rumors about

Cohilas, and pressured him to say that East was the source of the rumors. He felt

that they wanted East out of the department. According to Banks, Cohilas used a

strenuous sporting competition known as the Combat Challenge, “as a means of

pushing older firefighters out of the workforce through retirement or otherwise.”

In his affidavit, Waller asserted that he retired two years prior to receiving full

benefits because he “could no longer tolerate the treatment of older workers.”

Waller stated that East was not the source of the rumor because Waller was the

one who told East, and East “was startled and found it funny” when Waller told

him. Likewise, Travis asserted that he retired early in October 2009, because he

“had become fed up with what was happening in the department” regarding

Cohilas “targeting older workers.”

      After discovery, the defendants filed a motion for summary judgment,

arguing for the dismissal of all claims, and relevant to the present appeal, they

argued as follows. The county was entitled to summary judgment on East’s age

discrimination claim because East had presented no evidence that similarly

situated employees under 40 were treated more favorably, as he had no evidence

                                           8
of any younger lieutenants who were accused of engaging in “nearly identical”

conduct. Even if East could establish a prima facie case, the defendants submitted

that he could not establish a pretext for age discrimination or establish that age

was the but-for cause of the adverse action because the county fire department had

a legitimate reason for the adverse employment action. The defendants also

argued that East’s 42 U.S.C. § 1983 procedural due process claim should fail

because he had an adequate state remedy, namely mandamus. They contended that

the impact of his unpaid administrative leave was minimal since it was for a short

period of time and was limited to investigating the allegations, and thus, a formal

pre-deprivation procedure was not required.

      In opposing the defendants’ motion for summary judgment, East made the

following arguments relevant to the appeal. As to his age discrimination claim,

the affidavits of four individuals who worked with Cohilas, which alleged that he

was biased against older firefighters, constituted direct evidence of discrimination.

Further, East had established a prima facie case of discrimination because he

showed that all the individuals, except Wilson, who were investigated concerning

the rumors were younger than him and were not taken off duty without pay. The

work rule, § 3.11.2 of the employee manual, cited by Cohilas for removing East

from duty, applied to all employees regardless of rank. He did not violate this

                                          9
work rule and his conduct was similar to persons outside the protected class, yet

he was disciplined more severely. The defendants’ proffered nondiscriminatory

reasons for the adverse employment action were pretext for age discrimination.

The defendants’ violated his procedural due process by not giving him a grievance

hearing or appeal for over two years. As to his § 1983 procedural due process

claim, under Georgia law, mandamus is not available to an employee alleging a

due process violation who had an adequate legal remedy, including administrative

appeals and hearings.

      The district court found in relevant part that East had not presented direct

evidence of age discrimination because his proffered evidence only related to the

defendants’ attitude generally and not to this specific adverse action. The court

determined that East did not establish a prima facie case of discrimination based

on circumstantial evidence because he had not established that a similarly situated

employee outside of his class was treated more favorably. Specifically, the court

noted that employees in paramilitary organizations, such as fire departments, “are

generally not similarly situated if they are not the same rank.” It also indicated

that East had not affirmatively identified any individual comparator outside his

class, but rather he summarily stated that “numerous employees were questioned

regarding these rumors,” and he was the only one punished. As for the other two

                                          10
firefighters involved in the initial rumor accident, Hakeem and Lee, the court

found that neither of them was of East’s rank and that East’s position as lieutenant

was “unique,” as he held the “ultimate supervisory position at that station.”

Moreover, the court noted that East was the only person who was “reported” to

command as having spread the rumor.

      The court also found that East had a sufficient state law remedy which

precluded his 42 U.S.C. § 1983 claim predicated on procedural due process. It

noted that, while East claimed that he had filed an unanswered hearing request and

the personnel director claimed that it was unclear whether East had a right to such

a hearing, East still had mandamus as a sufficient state law remedy above and

beyond the civil service remedies. Therefore, the court granted the defendant’s

motion to dismiss East’s procedural due process § 1983 claims. It also dismissed

East’s other claims not relevant to this appeal.

                                          II.

      We review de novo a district court’s grant of summary judgment. Damon v.

Fleming Supermarkets of Fla., Inc., 

, 1357 (11th Cir. 1999).

Summary judgment is appropriate where there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law. 

In




                                          11
making this determination, the court must draw all reasonable inferences in favor

of the nonmoving party. 

plaintiff can establish age discrimination either through direct or

circumstantial evidence. Mora v. Jackson Mem’l Found, Inc., 

,

1204 (11th Cir. 2010). Each approach is discussed separately below as it relates to

East’s disparate treatment claim.

A. Direct Evidence

      “Direct evidence is evidence that establishes the existence of discriminatory

intent behind the employment decision without any inference or presumption.”

Standard v. A.B.E.L. Servs., 

, 1330 (11th Cir. 1998). It consists of

“[o]nly the most blatant remarks, whose intent could be nothing other than to

discriminate on the basis of age.” Van Voorhis v. Hillsborough Cnty. Bd. of Cnty.

Comm’rs, 

, 1300 (11th Cir. 2008) (quotation omitted). Evidence

that merely suggests a discriminatory motive is, by definition, circumstantial

evidence. Burrell v. Bd. of Tr. of Ga. Military Coll., 

, 1393-94

(11th Cir. 1997). “[R]emarks by non-decisionmakers or remarks unrelated to the

decisionmaking process itself are not direct evidence of discrimination.”

.

                                         12
      East relies on Wright v. Southland Corp., 

, 1293-1303 (11th

Cir. 1999), for the “preponderance” definition of direct evidence, to argue that the

court erred in applying the incorrect standard. According to Wright, “‘direct

evidence,’ in the context of employment discrimination law, means evidence from

which a reasonable trier of fact could find, more probably than not, a causal link

between an adverse employment action and a protected personal 

. No published opinion has overruled this definition, nor has a

published opinion directly applied this standard since the Wright decision was

issued in 1999. In any event, even if the preponderance language in Wright

controls this case, East still has not submitted evidence that, more probably than

not, establishes a causal link between the adverse employment action and his age.

      East relies solely on the affidavits from other older, retired firefighters to

support to his contention that he has established direct evidence of Cohilas’s

discriminatory intent to place him on unpaid administrative leave. With the

exception of Wilson’s affidavit, the statements from the other former firefighters

were unrelated to the instant adverse employment action, and thus, do not establish

a probable causal link between East’s leave and his age and do not constitute

direct evidence. See 

; 

. Even

though Wilson stated that he was pressured to say that East started the rumors

                                          13
because Cohilas wanted to fire East, his remarks are not considered direct

evidence of age discrimination. While the remarks may indicate that Cohilas

wanted to fire East, they do not indicate that Cohilas was motivated by an intent to

discriminate against East based on age. See 

.

      Moreover, East has not presented any evidence that Cohilas made any

remark about his age in connection with the decision to place him on unpaid leave.

In fact, East testified that his age was never mentioned in any of the meetings

concerning the investigation, and he was not aware of Cohilas saying anything to

him or anyone else about his age. Because he has not submitted any evidence of

Cohilas making an ageist remark in connection with the decisionmaking process

itself, East has not established direct evidence of Cohilas’s discriminatory intent.

See 

.

B. Circumstantial Evidence

      The Supreme Court in Gross v. FBL Fin. Servs., Inc. held that to establish a

disparate-treatment claim under the ADEA, a “plaintiff must prove by a

preponderance of the evidence . . . that age was the ‘but-for’ cause of the

challenged employer decision.” 557 U.S. __ , 

, 2351, 

(2009); see also 

(noting, in our only published

opinion interpreting Gross, that “an ADEA plaintiff must establish ‘but for’

                                          14
causality . . . the employer either acted ‘because of’ the plaintiff’s age or it did

not”). Even so, the Supreme Court expressly reserved the question of “whether

the evidentiary framework of [McDonnell Douglas Corp. v. Green, 

,

802-04, 

, 1824-25, 

(1973)] . . . is appropriate in the

ADEA context.” Gross, 557 U.S. at __, 129 S.Ct. at 2349 n.2.

      We have used the analytical framework from McDonnell Douglas in ADEA

cases where a plaintiff offers circumstantial evidence to prove a claim of

discrimination. Cofield v. Goldkist, Inc., 

, 1268 n.6 (11th Cir. 2001)

(noting that “[a]lthough the McDonnell Douglas framework originally applied to

Title VII cases, it is now widely accepted that the framework applies to claims of

discrimination under the ADEA as well”). Since the Supreme Court did not

explicitly overrule our precedent in applying the McDonnell Douglas test to

ADEA cases involving circumstantial evidence, we review East’s claims under

both McDonnell Douglas and Gross. See Gandara v. Bennett, 

, 829

(11th Cir. 2008) (“we are bound by the holdings of earlier panels unless and until

they are clearly overruled en banc or by the Supreme Court”).

      Applying the McDonnell Douglas framework, the plaintiff can establish a

prima facie case of age discrimination by showing he was: (1) a member of the

protected class; (2) qualified for his current position; (3) subject to adverse

                                           15
employment action; and (4) treated less favorable than any younger, similarly

situated employee. Zaben v. Air Prods. & Chems., Inc., 

, 1457

(11th Cir. 1997) (holding that replacement by someone outside the protected

group is required to make a prima facie age discrimination case); see also

O’Connor v. Consol. Coin Caterers Corp., 

, 313, 

,

1310, 

(1996) (holding that being replaced by someone outside

the protected class is not a proper element of the fourth prong because replacement

by a substantially younger employee is a far more reliable indicator of age

discrimination); Knight v. Baptist Hosp. of Miami, Inc., 

, 1316

(2003) (holding that more favorable treatment of similarly situated employees

outside the race classification is required to make a prima facie race

discrimination case).

      Once a plaintiff establishes a prima facie case of age discrimination, the

employer must offer legitimate, nondiscriminatory reasons for the employment

action. Mitchell v. USBI Co., 

, 1354 (11th Cir. 1999). “If the

employer does so, the plaintiff bears the ultimate burden of demonstrating that the

employer’s proffered reasons are a pretext for discrimination.” 

proffered reason is one that might motivate a reasonable employer, a plaintiff

cannot recast the reason but must meet it head on and rebut it.” Springer v.

                                         16
Convergys Customer Mgmt. Grp., Inc., 

, 1350 (11th Cir. 2007)

(quotation omitted). “[A] plaintiff must produce sufficient evidence for a

reasonable factfinder to conclude that each of the employer’s proffered

nondiscriminatory reasons is pretextual.” Chapman v. AI Transport, 

, 1037 (11th Cir. 2000) (en banc).

      Importantly, “the ultimate burden of persuading the trier of fact that the

employer intentionally discriminated against the employee remains at all times

with the plaintiff.” Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 

, 1162 (11th Cir. 2006) (quotation omitted). Further, if the employer acted on

its honestly-held belief that the employee had engaged in misconduct, even if it

was mistaken, there is no discrimination. Elrod v. Sears, Roebuck and Co., 

, 1470 (11th Cir. 1991).

      Applying the McDonnell Douglas test, the district court correctly concluded

that East did not establish a prima facie case for his termination claim because he

did not show that he was treated less favorably than any younger, similarly

situated employee. See 

; 

. There

is no evidence that any younger employee was suspected of being the source of the

rumors. As East testified, he and Wilson were the only ones investigated as being

the source of the rumors, and Wilson was older than East and did not face any

                                         17
adverse employment action for this incident, although he was later demoted for a

separate incident. It is also noteworthy that Hakeem, who East contends lied to

the command staff, was around 40 years old, and thus, was close to East’s age

when the alleged events occurred. Thus, East has not presented any evidence that

anyone younger than him had been suspected of starting the rumor or believed to

have committed any similar violation and who did not receive unpaid

administrative leave.

      Even assuming arguendo that East could establish a prima face case for his

adverse employment action, the defendants presented legitimate, non-

discriminatory reasons for placing him on unpaid administrative leave. Cohilas

stated that he thought East was the source of the rumors and wanted to investigate

the matter further. East did not provide any rebuttal to this assertion, and in fact,

acknowledged that he thought Cohilas and the others did not believe him when he

said he did not start the rumors. As such, he did not meet the employer’s reason

head on and rebut it. See 

. Construing the facts in the

light most favorable to East, Cohilas, even if mistaken, acted on his honestly held

belief that East had engaged in misconduct warranting unpaid administrative

leave. See 

. Thus, East failed to meet his burden to show

that the defendants’ proffered reasons for terminating him were pretextual. See

                                          18


. For the same reasons, he has also failed to present

evidence establishing that age discrimination was the “but-for” cause of his

adverse employment action to meet the Gross test.

                                         IV.

      We conduct a de novo review of constitutional law issues. Eagle Hosp.

Physicians, LLC v. SRG Consulting, Inc., 

, 1303 (11th Cir. 2009).

The Due Process Clause of the Fourteenth Amendment states that “nor shall any

State deprive any person of life, liberty, or property, without due process of law.”

U.S. Const. amend XIV, § 1. This clause has been interpreted to provide two

kinds of due process protection: procedural due process and substantive due

process. McKinney v. Pate, 

, 1555 (11th Cir. 1994) (en banc).

      To state a claim under 42 U.S.C. § 1983 for denial of procedural due

process, an individual must show “the state refuse[d] to provide a process

sufficient to remedy the procedural deprivation.” Cotton v. Jackson, 

, 1330-31 (11th Cir. 2000) (quotation omitted). “This rule . . . recognizes that

the state must have the opportunity to remedy the procedural failings of its

subdivisions and agencies in the appropriate fora-agencies, review boards, and

state courts before being subjected to a claim alleging a procedural due process

violation.” 

(quotation omitted).

                                         19
      Because East did not have a hearing, he is correct that he does not have a

right to a writ of certiorari. See O.G.G.A. § 5-4-1(a) (stating that the “writ of

certiorari shall lie for the correction of errors committed by any inferior

judicatory”). However, pursuant to Georgia law, when no other specific legal

remedy is available and a party has a clear right to have a certain act performed, a

party may seek mandamus.” 

; O.C.G.A. § 9-6-20. Under

Georgia law, this procedure can be used to compel a governmental body to act in

compliance with the law, for instance to require a governmental board to hold a

hearing as provided by law. Acree v. Walls, 

, 493 (Ga. 1978).

      While there is an issue of fact as to whether East was entitled to a civil

service board hearing, there is no genuine issue of material fact as to his

procedural due process claims for the following reasons. First, even assuming,

arguendo, that East had a clear right to a hearing and the defendants deprived East

of procedural due process by failing to provide him with such a hearing, East had a

state remedy available to address that deprivation. East could have petitioned

Georgia courts for a writ of mandamus, and as such, his procedural due process

claim is not actionable. See 

; O.C.G.A. § 9-6-20.

Second, if East did not have a legal right to these procedures, as he suggests in his

effort to bypass the mandamus requirement, he had no due process rights to those

                                          20
procedures in the first place. It is noteworthy, that it appears that East likely

received sufficient due process because he was only placed on unpaid

administrative leave from February 14 to 25, 2008, he was informed of his alleged

violation, and he had several opportunities, albeit informal ones, to rebut the

allegations. Accordingly, the district court did not err in finding that East’s

procedural due process rights were not violated under 42 U.S.C. § 1983.

      For the foregoing reasons, we affirm the judgment of the district court.

      AFFIRMED.




                                          21