[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-10013

Non-Argument Calendar

________________________

D.C. Docket No. 1:12-cv-04030-CC

BRIAN E. WALKER, 

 Plaintiff-Appellant,

 versus

FULTON COUNTY SCHOOL DISTRICT, 

a.k.a. Fulton County Schools, 

 Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(August 13, 2015)

Before HULL, MARCUS, and WILLIAM PRYOR, Circuit Judges.

PER CURIAM: 

Plaintiff Brian Walker appeals: (1) the district court’s dismissal of his 

retaliation claim against defendant Fulton County School District (the “School 

Case: 15-10013 Date Filed: 08/13/2015 Page: 1 of 9 
2

District”), brought under Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. 

§ 2000e-3(a); and (2) the district court’s grant of summary judgment to the School 

District on his Title VII race-based wage discrimination claim, brought under 42 

U.S.C. § 2000e-2(a)(1). After careful review, we affirm the challenged district 

orders.

I. BACKGROUND

Because we write for the parties, we assume familiarity with the underlying 

facts of the case and recite only what is necessary to resolve this appeal.

On November 19, 2012, plaintiff Walker pro se filed suit against the School 

District. Plaintiff Walker alleged that the District discriminated against him on the 

basis of his age (1) by failing to provide him with supplemental pay for teaching an 

additional orchestra class and (2) by providing this supplement to other teachers. 

Separately, plaintiff Walker alleged that the District provided false information to 

the Georgia Professional Standards Commission (“GPSC”), which prevented 

Walker from renewing his teaching license. 

On April 15, 2013, plaintiff Walker, through counsel, filed an amended 

complaint. On June 20, 2013, the district court struck the amended complaint as a 

“quintessential shotgun pleading” and gave plaintiff Walker twenty-one days to 

file a second amended complaint. 

Case: 15-10013 Date Filed: 08/13/2015 Page: 2 of 9 
3

On July 12, 2013, plaintiff Walker filed his second amended complaint, 

alleging race-based wage discrimination and retaliation in violation of Title VII, as 

well as sex-based discrimination in violation of the Equal Pay Act. On July 26, 

2013, the School District moved to dismiss, arguing (1) that Walker failed to set 

forth plausible claims for race- or sex-based wage discrimination and (2) that 

Walker’s retaliation claim was untimely.

On October 17, 2013, the district court granted that motion in part and 

denied it in part. The district court did not outright dismiss plaintiff Walker’s 

discrimination claims, but it did hold that Walker’s retaliation claim was timebarred.1

Discovery followed. On August 29, 2014, the School District filed a motion 

for summary judgment as to plaintiff Walker’s remaining discrimination claim. 

On December 2, 2014, the district court granted the School District’s motion for 

summary judgment. Plaintiff Walker timely appealed. 

II. STANDARD OF REVIEW

We review a district court’s ruling on a motion to dismiss de novo, applying 

the same standard as the district court. Bhd. of Locomotive Eng’rs & Trainmen 

Gen. Comm. of Adjustment CSX Transp. N. Lines v. CSX Transp., Inc., 522 F.3d 

 1

Plaintiff Walker, with leave of the district court, filed a Third Amended Complaint to 

clarify his Equal Pay Act claim. Because Walker later stipulated to voluntary dismissal of that 

claim, it is not relevant to our analysis here. 

Case: 15-10013 Date Filed: 08/13/2015 Page: 3 of 9 
4

1190, 1193-94 (11th Cir. 2008). We review the district court’s determination that 

an amendment does not relate back to the original complaint for an abuse of 

discretion, but we review for clear error the findings of fact used to apply Federal 

Rule of Civil Procedure 15(c). Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d 

1113, 1121 (11th Cir. 2004). While we construe pro se pleadings liberally, this 

does not give courts license to rewrite deficient pleadings in order to sustain an 

action. Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168-69 (11th Cir.), cert. 

denied, 135 S. Ct. 759 (2014).

We also review de novo the grant of a motion for summary judgment. 

Carter v. Three Springs Residential Treatment, 132 F.3d 635, 641 (11th Cir. 1998). 

We view the evidence in the light most favorable to the non-moving party. Id. 

Summary judgment is appropriate if the pleadings, depositions, and affidavits 

show that there is no genuine issue of material fact and that the moving party is 

entitled to judgment as a matter of law. Id.

III. DISCUSSION

A. The Retaliation Claim

We first explain why the district court did not err in dismissing the 

retaliation claim as time-barred.

Under Title VII, a plaintiff must file a civil action within 90 days of 

receiving a right-to-sue letter from the Equal Employment Opportunity 

Case: 15-10013 Date Filed: 08/13/2015 Page: 4 of 9 
5

Commission (“EEOC”). Stallworth v. Wells Fargo Armored Servs. Corp., 936 

F.2d 522, 524 (11th Cir. 1991). 

Where the plaintiff amends the complaint, even if the amended pleading was 

filed outside of the applicable statute of limitations, it is timely only where (1) the 

original pleading was timely and (2) the amended pleading relates back to the date 

on which the original pleading was filed. Krupski v. Costa Crociere S. p. A., 560 

U.S. 538, 541, 130 S. Ct. 2485, 2489 (2010). An amendment can relate back to the 

original pleading when it “asserts a claim or defense that arose out of the conduct, 

transaction, or occurrence set out—or attempted to be set out—in the original 

pleading.” Fed. R. Civ. P. 15(c)(1)(B). 

A critical issue in determining whether an amendment relates back to the 

original complaint is whether the original complaint gave the defendant notice of 

the claim asserted in the amendment. Moore v. Baker, 989 F.2d 1129, 1131 (11th 

Cir. 1993). In Moore, this Court determined that the amended claim did not 

involve the same conduct, transaction, or occurrence as those raised in the original 

complaint because (1) the original complaint did not refer to the new allegations of 

negligence, (2) the original complaint focused on acts that occurred before a 

surgery, and (3) the amended complaint focused on acts that occurred during and 

after that surgery. Id. at 1132.

Case: 15-10013 Date Filed: 08/13/2015 Page: 5 of 9 
6

Plaintiff Walker does not dispute that his amended complaint, which 

included a claim of retaliation for protected conduct, was filed more than 90 days 

after he received his right-to-sue letter. In his original complaint, Walker did not 

mention the protected conduct alleged in the amended complaint, nor did he 

mention the alleged adverse actions taken against him by the School District. 

The district court did not abuse its discretion by concluding that the 

retaliation claim in Walker’s amended complaint did not arise from the conduct, 

transaction, or occurrence stated in the original complaint, since a liberal 

construction of Walker’s pro se complaint cannot be used to rewrite it to include 

facts that were excluded. Campbell, 760 F.3d at 1168-69. Therefore, we affirm 

the district court’s dismissal of the retaliation claim as time-barred.

B. The Wage Discrimination Claim

Title VII prohibits an employer from discriminating against an individual by 

providing that individual lower compensation because of his or her race. 42 U.S.C. 

§ 2000e-2(a)(1). A plaintiff may prove such a discrimination claim either by 

showing direct evidence of discrimination or by indirect evidence, in which 

instance the burden-shifting framework outlined in McDonnell Douglas applies. 

Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir.

1999) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 

(1973)).

Case: 15-10013 Date Filed: 08/13/2015 Page: 6 of 9 
7

To state a prima facie case of wage discrimination under Title VII, plaintiff 

Walker must show that: (1) he belongs to a racial minority; (2) he received low

wages; (3) similarly situated comparators outside the protected class received 

higher compensation; and (4) he was qualified to receive a higher wage. Cooper v. 

S. Co., 390 F.3d 695, 734-35 (11th Cir. 2004), overruled on other grounds by Ash 

v. Tyson Foods, Inc., 546 U.S. 454, 457, 126 S. Ct. 1195, 1197 (2006); see

Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1529 (11th Cir. 1992) 

(applied to gender-based wage discrimination claim). In both race-based wage 

discrimination cases and gender-based wage discrimination cases, this Court has

required the plaintiff to present a comparator who received higher compensation in 

order to establish a prima facie case. See Cooper, 390 F.3d at 735; Meeks v. 

Computer Assocs. Int’l, 15 F.3d 1013, 1019 (11th Cir. 1994).

Here, Walker did not present a prima facie case of wage discrimination 

because he failed to present a comparator who received higher compensation. 

Kirsten VanWagner, the proposed comparator, and plaintiff Walker taught the 

same number of courses at Bear Creek Middle School and Creekside High School 

during the 2008-2009 school year. It is undisputed that Walker was paid more than 

VanWagner. Therefore, Walker cannot use VanWagner as the comparator to 

establish his prima facie case. See Cooper, 390 F.3d at 735. 

Case: 15-10013 Date Filed: 08/13/2015 Page: 7 of 9 
8

Furthermore, the district court properly held that the defendant School 

District carried its burden of articulating legitimate, non-discriminatory reasons for 

its compensation decisions as to Walker and VanWagner. Bear Creek Middle 

School’s principal, Darron Franklin, testified that the school’s limited budget 

allowed a full-time position for VanWagner, a drama teacher at Bear Creek, but

did not allocate a full-time position for Walker, an orchestra teacher at Bear Creek.

Eighty percent of Walker’s salary was paid by Bear Creek for his position there, 

while twenty percent was paid by Creekside in order to make his School District 

teaching position full-time.2 Principal Franklin could not use discretionary funds 

to establish a full-time position for Walker at Bear Creek because he needed to 

prioritize maintenance of the school building and core academic subjects.

Walker’s arguments and evidence did not rebut Franklin’s testimony. Plaintiff 

Walker presents no evidence that Franklin or any other decisionmaker considered 

plaintiff Walker’s race in assessing his compensation. 

The district court did not err in concluding that plaintiff Walker presented no 

genuine issue of fact for trial and thus did not err in granting summary judgment to 

the defendant School District. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 

1088 (11th Cir. 2004) (stating that the plaintiff may not simply recast the 

 2

As noted above, plaintiff Walker’s total compensation remained greater than 

VanWagner’s.

Case: 15-10013 Date Filed: 08/13/2015 Page: 8 of 9 
9

defendant’s non-discriminatory reason, but rather must “meet it head on and rebut 

it.”)

IV. CONCLUSION

For the foregoing reasons, we affirm the district court’s dismissal of 

Walker’s retaliation claim and the district court’s grant of summary judgment to 

the School District on Walker’s wage discrimination claim.

AFFIRMED.

Case: 15-10013 Date Filed: 08/13/2015 Page: 9 of 9