Filed: Jul. 01, 2020
Latest Update: Jul. 01, 2020
Summary: Case: 19-13224 Date Filed: 07/01/2020 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-13224 Non-Argument Calendar _ D.C. Docket No. 6:17-cv-02062-GAP-DCI EUGENE SMITH, Plaintiff-Appellant, versus ACTING SECRETARY, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant-Appellee, TRANSPORTATION SECURITY ADMINISTRATION, Defendant. _ Appeal from the United States District Court for the Middle District of Florida _ (July 1, 2020) Case: 19-1322
Summary: Case: 19-13224 Date Filed: 07/01/2020 Page: 1 of 8 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 19-13224 Non-Argument Calendar _ D.C. Docket No. 6:17-cv-02062-GAP-DCI EUGENE SMITH, Plaintiff-Appellant, versus ACTING SECRETARY, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Defendant-Appellee, TRANSPORTATION SECURITY ADMINISTRATION, Defendant. _ Appeal from the United States District Court for the Middle District of Florida _ (July 1, 2020) Case: 19-13224..
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Case: 19-13224 Date Filed: 07/01/2020 Page: 1 of 8
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-13224
Non-Argument Calendar
________________________
D.C. Docket No. 6:17-cv-02062-GAP-DCI
EUGENE SMITH,
Plaintiff-Appellant,
versus
ACTING SECRETARY, UNITED STATES
DEPARTMENT OF HOMELAND SECURITY,
Defendant-Appellee,
TRANSPORTATION SECURITY
ADMINISTRATION,
Defendant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(July 1, 2020)
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Before WILSON, NEWSOM, and ANDERSON, Circuit Judges.
PER CURIAM:
Eugene Smith, an African-American male, appeals the district court’s grant
of summary judgment in favor of his former employer, the Acting Secretary of the
U.S. Department of Homeland Security (“DHS”), in his employment
discrimination suit under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e-16.1 Because the district court did not abuse its discretion in
adhering to its discovery calendar, and because Smith has failed to establish a
prima facie case of race discrimination, we affirm.
Smith was formerly employed by DHS as a Behavioral Detection Officer for
the Transportation Security Administration (“TSA”) at the Orlando International
Airport. His duties required him to be able to lift and carry items weighing up to
70 pounds, squat and bend, walk up to two miles during a shift, and stand for
prolonged periods of time. After complaining of irritable bowel syndrome, Smith
was placed on “light duty” in November 2011, a temporary adjustment that TSA
provides for medical conditions and non-work-related injuries. TSA does not
permit light-duty assignments to extend beyond 180 days “absent unusual
1
Smith also named the Transportation Security Administration (“TSA”) as a defendant and
raised a failure-to-accommodate claim under the Americans with Disabilities Act (“ADA”). The
district court later dismissed the former and deemed the latter withdrawn. Because Smith does
not challenge either ruling on appeal, any issues in these respects are abandoned. See Hartsfield
v. Lemacks, 50 F.3d 950, 953 (11th Cir. 1995) (stating that issues not clearly raised on appeal are
deemed abandoned).
2
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circumstances.” Seemingly in accordance with that policy, because his doctor had
not cleared Smith to return to work, Smith was placed on leave without pay in May
2012.
In his complaint, Smith asserted that his termination was disparate treatment
compared to similarly situated white employees whom DHS permitted to stay on
light duty for more than the maximum 180-day period. He raises two arguments
on appeal. First, he contends that the district court abused its discretion in
declining to permit him to conduct additional discovery to obtain the personnel
files of alleged comparators before ruling on DHS’s motion for summary
judgment. Second, he argues that the district court erred in granting summary
judgment in favor of DHS because it erroneously concluded that he failed to
present a prima facie case of race discrimination by showing that DHS treated
similarly situated white employees more favorably. Both arguments are without
merit.
I
A district court’s refusal to grant a continuance of a summary judgment
motion to permit a party to conduct discovery is reviewed for an abuse of
discretion. Burks v. Am. Cast Iron Pipe Co., 212 F.3d 1333, 1336 (11th Cir. 2000).
Under this standard, we will leave undisturbed a district court’s ruling so long as it
was within the permissible range of choices and not based on a clear error of
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judgment or the wrong legal standard. Josendis v. Wall to Wall Residence Repairs,
Inc., 662 F.3d 1292, 1306–07 (11th Cir. 2011).
Federal Rule of Civil Procedure 56(d) provides that if a party opposing
summary judgment shows through an affidavit or declaration that he “cannot
present facts essential to justify [his] opposition” to the motion, the district court
may “(1) defer considering the motion or deny it; (2) allow time to obtain
affidavits or declarations or to take discovery; or (3) issue any other appropriate
order.” Where the nonmovant “had ample time and opportunity” to complete
discovery but “failed to diligently pursue his options,” a district court does not
abuse its discretion by denying a request for additional discovery. Barfield v.
Brierton, 883 F.2d 923, 932 (11th Cir. 1989).
In its scheduling order, the district court directed the parties to complete all
discovery by May 1, 2019, and instructed them that requests to extend deadlines
would be disfavored. During discovery, Smith sought the personnel files of DHS
employees whom he believed would be appropriate “comparators” for Title VII
purposes. In its December 2018 response, DHS objected to the request but offered,
pending entry of a protective order, to supplement its response with sufficient
comparator information—each individual’s position, dates of employment,
whether they had received light-duty assignments, and how long such assignment
lasted.
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Although we assume the parties’ familiarity with the facts of the subsequent
discovery negotiations, we note that Smith never filed a motion to compel
discovery of the personnel files and did not agree to the proposed protective
order—which he claims to have agreed to in order to get access to the files—until
after the close of discovery.
Smith’s failure to diligently pursue discovery by filing a motion to compel,
in addition to his failure to seek a continuance or allege facts supporting a
continuance, were sufficient reasons for the district court to refuse to allow Smith
additional discovery time. Barfield, 883 F.2d at 932. Therefore, the district court
acted within its discretion.
II
The district court granted DHS’s motion for summary judgment on the
ground that Smith had failed to show a genuine dispute of material fact as to
whether DHS treated similarly situated white employees more favorably by
permitting them to remain on light duty for more than 180 days—and, accordingly,
that Smith failed to establish a prima facie case of race discrimination under Title
VII. We agree and affirm.
“We review a district court’s grant of summary judgment de novo, viewing
the facts . . . and reasonable inferences from those facts in the light most favorable
to the nonmoving party. Summary judgment is only proper where no genuine
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issue of material fact exists.” Young v. City of Palm Bay, 358 F.3d 859, 860 (11th
Cir. 2004) (citation omitted). Because, to be considered genuine, a factual issue
“must have a real basis in the record,” “mere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary judgment motion.” Ellis v.
England,
432 F.3d 1321, 1325–26 (11th Cir. 2005).
Title VII prohibits an employer from discriminating against an employee
based on his race. 42 U.S.C. § 2000e-2(a)(1); see also 42 U.S.C. § 2000e-16(a). A
plaintiff may support his Title VII claim through “circumstantial evidence [that]
raises a reasonable inference that the employer discriminated against the plaintiff.”
Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). “[A]n
inference based on speculation and conjecture is not reasonable.” Avenue CLO
Fund, Ltd. v. Bank of Am., N.A.,
723 F.3d 1287, 1294 (11th Cir. 2013) (quotation
omitted).
Where the plaintiff supports his claim with circumstantial evidence, we
generally apply the McDonnell Douglas burden-shifting framework. McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The plaintiff bears the initial
burden of presenting sufficient evidence to allow a reasonable jury to determine
that he has satisfied the elements of his prima facie case of racial discrimination.
Id. If a prima facie case is established, the burden shifts to the defendant “to
articulate some legitimate, nondiscriminatory reason” for the employment action.
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See id. at 802–03. If the defendant does so, the plaintiff must then demonstrate
that the defendant’s reason was a pretext for discrimination.
Id. at 804.
A prima facie case under Title VII generally requires a plaintiff to show
“(1) that [ ]he belongs to a protected class, (2) that [ ]he was subjected to an
adverse employment action, (3) that [ ]he was qualified to perform the job in
question, and (4) that h[is] employer treated ‘similarly situated’ employees outside
h[is] class more favorably.” Lewis v. City of Union City, 918 F.3d 1213, 1220–21
(11th Cir. 2019) (en banc). To meet the fourth prong, a comparator must be
“similarly situated in all material respects,” meaning that the plaintiff and
comparators are “sufficiently similar, in an objective sense, that they cannot
reasonably be distinguished.”
Id. at 1224, 1228 (quotation omitted). Although this
standard requires a case-by-case analysis, a similarly situated comparator will
ordinarily “have engaged in the same basic conduct . . . as the plaintiff,” “been
subject to the same employment policy, guideline, or rule,” shared “the same
supervisor,” and “share[d] the plaintiff’s employment . . . history.”
Id. at 1227–28.
Smith’s failure to produce evidence showing that a single similarly situated
comparator was treated more favorably precludes the establishment of a prima
facie case. See id. at 1224. Smith claimed that he could identify ten similarly
situated comparators, but also testified that he did not know when or how long
each had been on light duty, or who among them (if any) had medical restrictions.
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DHS, on the other hand, offered testimony from the head of Orlando International
Airport’s human resources department. Her testimony revealed that of the ten
comparators,2 only one was on light duty, and only for a total of 105 days. Five
were on limited duty, a different TSA program for work-related injuries. Of those
six, none had the same job as Smith. On the record before us, therefore, Smith has
failed to identify a valid comparator; accordingly, there is no genuine dispute of
material fact concerning whether DHS treated similarly situated non-African-
Americans more favorably by permitting them to remain on light duty for more
than 180 days.
The district court did not err in granting summary judgment to DHS. Aside
from conclusory allegations contradicted by his own testimony, Smith failed to
identify similarly situated comparators, and therefore failed to establish a prima
facie case of race discrimination.
AFFIRMED.
2
DHS’s witness discussed nine of the ten comparators. Smith conceded in his deposition,
however, that the omitted comparator, known as D.S., was not a Behavioral Detection Officer,
and did not know whether he or she was on light or limited duty.
8
