FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JULY 29, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-15072

Non-Argument Calendar

________________________

D. C. Docket No. 07-00461-CV-3-LAC-MD

CAESAR WHITE, JR.,

Plaintiff-Appellant,

versus

WENDALL HALL,

M. E. SEEVERS,

Major (Detention),

PAUL CAMPBELL,

Captain (Detention),

RENA SMITH,

Captain (Detention Support),

HOBBS,

Lieutenant (Detention Support),

et al.,

Defendants-Appellees.
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Appeal from the United States District Court

for the Northern District of Florida

_________________________

(July 29, 2010)

Before CARNES, MARCUS and MARTIN, Circuit Judges.

PER CURIAM:

Caesar White, Jr., proceeding pro se in this employment discrimination

lawsuit under 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e-2, appeals from the district court’s grant of summary judgment in

favor of the following individual defendants associated with his former employer,

the Sheriff’s Office of Santa Rosa County, Florida: Sheriff Wendall Hall, Major

M.E. Seevers, Captain Paul Campbell, Captain Rena Smith, Lieutenant Diedre

Hobbs, Lieutenant Jerry Ranger, Sergeant Jody Cochran, and Field Training

Officer Pamela Moorer. White was fired for insubordination during his first-year

probationary period as a jail deputy. White, who is black, claims that the

defendants, some of whom are white and others of whom are black, discriminated

against him by treating him differently than they treated white employees, and

fired him because of his race.

White first argues that the district court erred in granting summary judgment

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to the defendants on his claims for due process and equal protection violations

under § 1983. He challenges the district court’s conclusions that he failed to make

a prima facie case of discrimination because (1) as to Hall, Seevers, Campbell,

Smith, and Hobbs, he failed to identify a similarly situated comparator who was

treated more favorably, and (2) as to Ranger, Cochran, and Moorer, he failed to

show that he was subjected to an adverse employment action. He also argues that

the district court erred in granting summary judgment on his Title VII claims on

the ground that White failed to exhaust his administrative remedies. White further

contends that the magistrate judge abused his discretion in denying White’s motion

to compel production of documents for discovery, that the district judge should

have recused himself, and that the defendants violated White’s rights under the

First and Fifth Amendments.

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“[We review] a grant of summary judgment de novo, applying the same

familiar standards as the district court.” Wilkerson v. Grinnell Corp., 270 F.3d

1314, 1317 (11th Cir. 2001). “Summary judgment is appropriate when the

evidence, viewed in the light most favorable to the nonmoving party, presents no

 We reject the defendants’ argument that we lack jurisdiction to consider summary 1

judgment as to Title VII and the denial of the motion to compel, both of which occurred before

the final disposition of the case. See Aaro, Inc. v. Daewoo Int’l (Am.) Corp., 755 F.2d 1398,

1400 (11th Cir. 1985) (holding that an order granting summary judgment that failed to resolve all

the claims asserted by the plaintiff was interlocutory and not appealable as of right, was merged

into the final judgment, and was open to review on appeal from that judgment). 

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genuine issue of material fact and compels judgment as a matter of law in favor of

the moving party.” Holloman v. Mail-Well Corp, 443 F.3d 832, 836–37 (11th Cir.

2006) (citing Fed. R. Civ. P. 56(c)). “[We have] consistently held that conclusory

allegations without specific supporting facts have no probative value.” Leigh v.

Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2000) (quotation omitted).

I.

A.

A § 1983 action alleging a violation of procedural due process requires proof

of “a deprivation of a constitutionally-protected . . . property interest.” Cryder v.

Oxendine, 24 F.3d 175, 177 (11th Cir. 1994). “Property interests protected by the

Constitution are created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as state law . . . .” Silva

v. Bieluch, 351 F.3d 1045, 1047 (11th Cir. 2003) (quotation omitted). “Because

employment rights are state-created rights and are not ‘fundamental’ rights created

by the Constitution, they do not enjoy substantive due process protection.” Id. at

1047 (quotation omitted).

Florida law has established a civil service system for Santa Rosa County,

and under that system, employees who have served less than one year are

probationary employees. Act of April 24, 2002, 2002 Fla. Laws 385 § 1(16). With

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respect to dismissals, such employees “do not have appeal rights and shall be

deemed at-will employees.” Id. § 21(1). When White was fired, he was an at-will

probationary employee with no appeal rights, and did not have a constitutionally

protected property interest in his job. Accordingly, his due process claim fails.

B.

In a § 1983 action, “discriminatory intent is an element to be shown in the

same manner as in an alleged Title VII violation when the two claims arise from

the same conduct and constitute parallel remedies.” Abel v. Dubberly, 210 F.3d

1334, 1338 n.3 (11th Cir. 2000). White has offered no direct evidence of

discrimination or racial animus. While he was employed, White never complained

about any racial discrimination or harassment. The insubordination charge

stemmed from a disagreement between White and his training officer, Moorer,

who is also black. Sheriff Hall, who was ultimately responsible for the termination

decision, never met White in person and was unaware of his race.

Discrimination claims based on circumstantial evidence are evaluated under

the McDonnell Douglas framework. Burke-Fowler v. Orange County, Fla., 447

F.3d 1319, 1322–23 (11th Cir. 2006); see McDonnell Douglas v. Green Corp., 411

U.S. 792, 93 S.Ct. 1817 (1973). A plaintiff establishes a prima facie case by

showing that (1) he is a member of a protected class; (2) he was subjected to an

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adverse employment action; (3) his employer treated similarly situated employees

outside of his protected class more favorably than he was treated; and (4) he was

qualified to do the job. Burke-Fowler, 447 F.3d at 1323.

[T]o determine whether employees are similarly situated, we evaluate

whether the employees are involved in or accused of the same or

similar conduct and are disciplined in different ways. When making

that determination, we require that the quantity and quality of the

comparator’s misconduct be nearly identical to prevent courts from

second-guessing employers’ reasonable decisions and confusing

apples with oranges.

Id. at 1323 (quotations, citation, and alteration omitted).

With respect to the five defendants who were involved in the termination

decision—Hall, Seevers, Campbell, Smith, and Hobbs—White failed to show that

they gave more favorable treatment to similarly situated non-minority employees

who engaged in similar misconduct. White could not identify any other

probationary deputy, of any race, who had been insubordinate and had not been

fired. Summary judgment for these defendants was proper because White failed to

establish a prima facie case and therefore failed to raise an inference of

discrimination.

White also alleged that his immediate supervisors discriminated against him

by giving him more difficult assignments and less favorable performance

evaluations than the white deputies in his training class. In the public employment

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context § 1983, like Title VII, prohibits discrimination with respect to an

employee’s “compensation, terms, conditions, or privileges of employment.” See

Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1238 (11th Cir. 2001) (quoting

42 U.S.C. § 2000e-2(a)). Courts have uniformly read this language to require a

plaintiff to establish, as part of his prima facie case, that he suffered an “adverse

employment action.” See id. However, “not all conduct by an employer

negatively affecting an employee constitutes adverse employment action.” Id. In

Davis, we described an adverse employment action as follows:

[I]t is clear that to support a claim under Title VII’s

anti-discrimination clause the employer’s action must impact the

‘terms, conditions, or privileges’ of the plaintiff’s job in a real and

demonstrable way. Although the statute does not require proof of

direct economic consequences in all cases, the asserted impact cannot

be speculative and must at least have a tangible adverse effect on the

plaintiff's employment. . . . [T]herefore, . . . to prove adverse

employment action in a case under Title VII’s anti-discrimination

clause, an employee must show a serious and material change in the

terms, conditions, or privileges of employment. Moreover, the

employee’s subjective view of the significance and adversity of the

employer’s action is not controlling; the employment action must be

materially adverse as viewed by a reasonable person in the

circumstances.

Id. at 1239. Criticisms, negative evaluations, and temporary and non-substantial

changes in work assignments are not actions that have a “serious and material

effect” on the terms and conditions of employment. See id. at 1241–44.

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With respect to the three defendants who were not involved in the

termination decision—Ranger, Cochran, and Moorer—they were entitled to

summary judgment because White did not show that he suffered an adverse

employment action at their hands. No alleged action by these three defendants

tangibly, seriously, or materially adversely affected the “terms, conditions, or

privileges” of White’s employment “as viewed by a reasonable person in the

circumstances.” Davis, 245 F.3d at 1239. Thus, White failed to make a prima

facie case as to them and the court correctly granted summary judgment for these

defendants.

II.

A plaintiff may sue for discrimination under Title VII only after he first

exhausts his administrative remedies, a process that begins with the filing of a

timely charge of discrimination with the Equal Employment Opportunity

Commission. Wilkerson, 270 F.3d at 1317. It is not necessary for us to decide

whether the district court was correct in determining that White’s intake

questionnaire and correspondence with the EEOC and the Florida Commission on

Human Relations failed to constitute a “charge” that would satisfy the exhaustion

requirement. Even if White did file a proper charge and exhaust his administrative

remedies, the legal elements and analysis for a discrimination claim under Title VII

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are identical to the proof and analysis required under § 1983. See Stallworth v.

Shuler, 777 F.2d 1431, 1433 (11th Cir. 1985). White’s failure to present a prima

facie case of discrimination under § 1983, as discussed above, also supports

summary judgment for the defendants on his Title VII claims.

III.

We review the denial of a motion to compel discovery under an abuse of

discretion standard. Holloman, 443 F.3d at 837. The court “is allowed a range of

choice in such matters, and we will not second-guess [its] actions unless they

reflect a clear error of judgment.” Id. (quotation marks and citations omitted). The

magistrate judge repeatedly instructed White to work with defense counsel and

clarify his discovery requests, but White failed to do so. The record shows that the

defendants cooperated with White’s discovery requests to the extent they could

understand them. Aside from “surveillance video” that did not exist, it was never

clear exactly what records White was demanding that the defendants had not

already turned over. Under the circumstances, we cannot say that the magistrate

judge abused his discretion in denying White’s motion to compel.

IV.

We will not consider White’s arguments concerning judicial recusal or

alleged violations of his First and Fifth Amendment rights, because White never

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raised them before the district court. See Access Now, Inc. v. Southwest Airlines

Co., 385 F.3d 1324, 1331 (11th Cir. 2004). Even if he had, his arguments on those

issues are without merit.

AFFIRMED.

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