Filed: Nov. 27, 2007
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT NOV 27, 2007 No. 07-11409 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 05-01432-CV-ORL-22-JGG ANESH GUPTA, Plaintiff-Appellant, versus WALT DISNEY WORLD COMPANY, Defendant-Appellee. _ Appeal from the United States District Court for the Middle District of Florida _ (November 27, 2007) Before MARCUS, WILSON and PRYOR, Circuit Judges. PER CURIAM: Anesh Gup
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS _ ELEVENTH CIRCUIT NOV 27, 2007 No. 07-11409 THOMAS K. KAHN Non-Argument Calendar CLERK _ D. C. Docket No. 05-01432-CV-ORL-22-JGG ANESH GUPTA, Plaintiff-Appellant, versus WALT DISNEY WORLD COMPANY, Defendant-Appellee. _ Appeal from the United States District Court for the Middle District of Florida _ (November 27, 2007) Before MARCUS, WILSON and PRYOR, Circuit Judges. PER CURIAM: Anesh Gupt..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 27, 2007
No. 07-11409 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-01432-CV-ORL-22-JGG
ANESH GUPTA,
Plaintiff-Appellant,
versus
WALT DISNEY WORLD COMPANY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 27, 2007)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Anesh Gupta, an Asian male, appeals pro se the summary judgment entered
in favor of his former employer, Walt Disney World Company, and against
Gupta’s complaint of employment discrimination. See 42 U.S.C. §§ 1981, 2000e-
2(a). Gupta contends that Walt Disney illegally discriminated against him when it
refused to allow Gupta to work as a server at Akershus, a restaurant in the
Norwegian Pavillion of the EPCOT theme park, because he was not “culturally
authentic” to Norway. Gupta also appeals the denial by the district court of
Gupta’s motion to compel discovery without first holding an evidentiary hearing.
We affirm.
I. BACKGROUND
Gupta worked at Walt Disney from May to December 2003 as a participant
in the college intern program. He then worked in a second internship program
from June 2004 to May 2005, when the program ended. During this time, Gupta
worked in various capacities, including as a role hopper and a door host at the
nightclub, Motion.
In March or April 2005, Gupta worked extra hours as a stocker at Akershus
in the Norway Pavilion at Epcot. The Norway Pavilion is a component of the
World Showcase of Epcot, a permanent international exposition that strives to
provide guests an opportunity to experience and learn about the culture, traditions,
and accomplishments of eleven nations of the world. Many positions in the World
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Showcase are staffed by “Cultural Representatives,” who interact with guests and
share the culture, tradition, language and history of the country they are
representing. Walt Disney requires Cultural Representatives to speak the language
of the country they represent and possess an adequate command of English to
communicate and explain their customs, traditions, and culture to guests based on
the representative’s first-hand experience. According to Walt Disney, as long as an
individual meets these standards, that individual can serve as a Cultural
Representative regardless of their national origin, race, or color. Walt Disney
presented evidence of individuals of “Asian descent” who qualified to work as
Cultural Representatives in the Norway Pavilion because they were culturally
authentic, as well as individuals who are Middle Eastern, Asian, and black who
were Cultural Representatives in the Canada Pavilion.
Servers at the Norwegian restaurant are required to be Cultural
Representatives. From 2002 to April 2005, Walt Disney employed some
individuals as servers during the “Princess Storybook Breakfast,” which was held
at the Norway Pavilion, who were not culturally authentic to Norway, because the
breakfast was an American meal and was served before the opening of the larger
World Showcase later in the day. In April 2005, Walt Disney changed the
breakfast to an all-day dining experience with a Norwegian theme. Use of
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individuals not culturally authentic to Norway as servers was discontinued, though
non-culturally-authentic individuals continued to work some hours until enough
culturally authentic servers were hired and trained.
In April or May 2005, Gupta expressed interest in working as a server at the
Norwegian restaurant. Gupta took training classes to become a server, and worked
some hours as a server at the Norwegian restaurant during two weeks in June 2005.
Gupta primarily worked the breakfast shift, but testified that he also worked at least
one lunch shift. On June 26, 2005, Gupta was informed that he could no longer
work as a server at the Norwegian restaurant. James McAndrew, the other non-
culturally-authentic server identified by Gupta, was informed on June 28, 2005,
that he could no longer work as a server at the Norwegian restaurant.
Gupta brought this action against Walt Disney and alleged employment
discrimination on the basis of race, national origin, and color. At the close of
discovery, Gupta moved to compel Walt Disney to produce the “actual” work
schedules for the Norwegian restaurant. Gupta alleged that the work schedules
produced by Walt Disney were fabricated. The district court denied the motion.
Walt Disney moved for summary judgment, which the district court granted.
Gupta appealed. Walt Disney has moved to strike portions of Gupta’s reply brief.
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II. STANDARDS OF REVIEW
We review a denial of discovery order for abuse of discretion. Moorman v.
UnumProvident Corp., 464 F.3d 1260, 1264 (11th Cir. 2006).
We review a grant of summary judgment de novo. Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). Summary judgment is
appropriate “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.” Fed. R. Civ. P. 56(c). When reviewing the record,
“we view the evidence in the light most favorable to the non-moving party.”
Wilson, 376 F.3d at 1085.
III. DISCUSSION
Gupta argues that the district court erred when it entered summary judgment
against his complaint of employment discrimination. Gupta contends that he
presented both direct and circumstantial evidence of discrimination and that Walt
Disney’s explanation about cultural authenticity requirements was created after the
fact to cover illegal discrimination. Gupta also argues that the district court abused
its discretion when it denied his motion to compel additional discovery.
Before we address Gupta’s arguments, we grant Walt Disney’s motion to
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strike portions of Gupta’s reply brief. The allegations about which Walt Disney
complains were not supported by citation to the record, see 11th Cir. R. 28-1(I),
and the evidence attached to Gupta’s brief was not presented to the district court,
see Selman v. Cobb County Sch. Dist., 449 F.3d 1320, 1332 (11th Cir. 2006).
A. The District Court Did Not Err When It Granted Summary Judgment In Favor
of Walt Disney and Against Gupta’s Complaint of Employment Discrimination.
Gupta’s argument that he presented direct evidence of illegal discrimination
fails. Walt Disney’s explanation that Gupta was not allowed to work at the
Norwegian restaurant because Gupta was not “culturally authentic” is not direct
evidence of illegal discrimination. The evidence established that “cultural
authenticity” did not depend on an individual’s national origin, race, or color, but
was entirely dependent on the ability of an individual to share authentically a
culture.
Because Gupta does not have direct evidence of discrimination, he must rely
on circumstantial evidence under the burden-shifting framework of 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). See Vessels v. Atlanta Indep. Sch. Sys.,
408 F.3d 763, 767–68 (11th Cir.
2005). The employee is entitled to an inference of discrimination when he
establishes a prima facie case.
Id. “A plaintiff establishes a prima facie case of
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disparate treatment by showing that [he] was a qualified member of a protected
class and was subjected to an adverse employment action in contrast with similarly
situated employees outside the protected class.” Wilson, 376 F.3d at 1087.
Gupta failed to establish a prima facie case of discrimination for at least two
reasons. First, Gupta did not establish that he was qualified to be a server at the
Norwegian restaurant. Walt Disney required servers at the Norwegian restaurant to
be culturally authentic to Norway. Gupta admits that he has visited Norway for
one to two days and does not have first-hand knowledge of Norwegian culture.
Although individuals not culturally authentic to Norway, including Gupta,
previously worked in the Norwegian restaurant, the evidence established that
Gupta and the other non-culturally-authentic workers worked either during an
American breakfast shift, when cultural authenticity was not required, or worked in
violation of Walt Disney policy. Second, Gupta failed to establish that he was
treated differently from other similarly situated employees. Walt Disney informed
the other non-culturally-authentic server, McAndrew, that he could no longer serve
at the Norwegian restaurant two days after it informed Gupta. “If a plaintiff fails to
show the existence of a similarly situated employee, summary judgment is
appropriate where no other evidence of discrimination is present.” Holifield v.
Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
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B. The District Court Did Not Abuse Its Discretion When It Denied Gupta’s
Motion To Compel Production.
Gupta argues that the district court abused its discretion when it denied
Gupta’s motion to compel discovery about the Walt Disney work schedules, which
Gupta alleges were forged, without holding an evidentiary hearing. We disagree.
Gupta provided no support for his allegation that Walt Disney removed his name
from the work schedules produced during discovery. Walt Disney presented
evidence that the records produced were copies of electronically maintained
records, kept in the usual course of business, and were printed off the computer in
the form in which they were maintained. The district court did not abuse its
discretion when it denied Gupta’s motion to compel additional discovery without
holding an evidentiary hearing.
IV. CONCLUSION
The summary judgment in favor of Walt Disney is
AFFIRMED.
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