USCA11 Case: 19-14405    Date Filed: 10/19/2020    Page: 1 of 7



                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-14405
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 3:17-cv-00681-WC



JOHN OIRYA,

                                                             Plaintiff-Appellant,


                                  versus


AUBURN UNIVERSITY,
GEORGE FLOWERS,

                                                          Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Alabama
                      ________________________

                            (October 19, 2020)

Before WILSON, LAGOA, and ANDERSON, Circuit Judges.

PER CURIAM:
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      John Oirya, a black male, appeals the district court’s grant of summary

judgment to Auburn University (“Auburn”) and George Flowers on his claim of

racial discrimination under 42 U.S.C. § 1981. Oirya argues that the comparators

he identified were similarly situated because they all met the academic good

standing policy in effect at the time of their application to and acceptance into

Auburn’s graduate school. He also argues that the district court erred in its

treatment of his response to Auburn and Flowers’s motion for summary judgment

and the evidence he submitted in support.

      We review the grant of summary judgment de novo, applying the same legal

standards as the district court. Alvarez v. Royal Atl. Developers, Inc., 

, 1263 (11th Cir. 2010). The question is whether the evidence, when viewed

in the light most favorable to the nonmoving party, shows that no genuine issue of

material fact exists, and that the moving party is entitled to judgment as a matter of

law.

      Under 42 U.S.C. § 1981, all persons have the right to make and enforce

contracts and to the full and equal benefit of all laws and proceedings for the

security of persons and property as is enjoyed by white citizens. 42 U.S.C. § 1981.

To prevail on a non-employment § 1981 claim, a plaintiff must establish the

following: (1) he is a member of a racial minority; (2) the defendant intended to


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racially discriminate against him; and (3) the discrimination concerned one or more

of the activities enumerated in § 1981. Jiminez v. Wellstar Health Sys., 

, 1308 (11th Cir. 2010). Section 1981 claims are analyzed in the same

manner as claims brought under Title VII. See Butler v. Ala. Dept. of Transp., 

, 1215 (11th Cir. 2008). Facing a defendant’s motion for summary

judgment, a plaintiff asserting an intentional discrimination claim under § 1981

must make a sufficient factual showing to permit a reasonable jury to find in his

favor. Lewis v. City of Union City, Ga., 

, 1217 (11th Cir. 2019) (en

banc).

         One way to meet this burden is through the burden-shifting framework

found in McDonnell Douglas Corp. v. Green, 

(1973).

the plaintiff is first required to establish a prima facie case of

discrimination.

presents a prima facie case, a presumption

arises that the employer acted illegally, which the employer can rebut by

presenting a legitimate, nondiscriminatory reason for its decision.

so,

then the burden shifts back to the plaintiff to show that the employer’s proffered

reasons were pretextual.

in the burden of production, the

ultimate burden of persuasion to show that the employer intentionally

discriminated rests with the plaintiff.

cautioned that

establishing the elements of the McDonnell Douglas framework is not the only


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way to survive summary judgment in an employment discrimination case, and that

a plaintiff may also present “a convincing mosaic” of circumstantial evidence that

raises a reasonable inference that the employer intentionally discriminated against

her. Smith v. Lockheed-Martin Corp., 

, 1328 (11th Cir. 2011).

      In order to demonstrate a prima facie case of discrimination, the plaintiff

may show that (1) he is a member of a protected class; (2) who is qualified for the

position; (3) but was subject to an adverse employment decision; and (4) a

similarly situated employee who is outside the protected class was treated

differently. 

. A plaintiff must show that he and his

comparators are “similarly situated in all material respects.” 

. If the plaintiff does not show the existence of a similarly situated employee,

summary judgment is appropriate where there is no other evidence of

discrimination. Holifield v. Reno, 

, 1562 (11th Cir. 1997).

      We have explained the sorts of similarities that will underlie a valid

comparison. 

. For instance, we noted, a similarly situated

comparator ordinarily will have engaged in the same basic conduct or misconduct

as the plaintiff, will have been subject to the same employment policy, guideline,

or rule as the plaintiff, will have been under the jurisdiction of the same supervisor

as the plaintiff, and will share the plaintiff’s employment or disciplinary history.

A valid comparison turns “not on formal labels, but rather on


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substantive likeness.”

“An employer is well within its rights to accord

different treatment to employees who are differently situated in ‘material

respects’—e.g., who engaged in different conduct, who were subject to different

policies, or who have different work histories.”

court did not err in granting summary judgment to Auburn

and Flowers because Oirya failed to make a prima facie case of racial

discrimination. The comparators that Oirya identified were several of his fellow

Ph.D. graduate students at Auburn, all of different races than he and none of racial

minorities. The students were similar to Oirya in that they were all graduate

students seeking Ph.D.s at Auburn and that they began around the same time as

Oirya. However, Oirya did not point to any student that had been revealed to be

ineligible to reenroll in their prior institution. He also did not point to a student

who had engaged in the same misconduct as he at their prior institution or who had

failed to disclose their full transcripts upon application to Auburn. Indeed, Flowers

stated that he had never encountered this specific situation before Oirya, and Oirya

conceded that he did not know of another student who was ineligible to return to

his prior institution. Thus, Oirya did not present a comparator who was similarly

situated to him in all material respects, because Oirya’s inability to reenroll at

BYU was the cited reason for his expulsion and was therefore material. 

, 1227-28. Auburn and Flowers were justified in treating Oirya


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differently based on his different status as ineligible to reenroll at his prior

institution. 

. Without satisfying this element, he failed to

make a prima facie claim for racial discrimination.

      AFFIRMED.




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WILSON, Circuit Judge, concurring:

     I concur in the result.




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