[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-12531

Non-Argument Calendar

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D.C. Docket No. 4:12-cv-04043-KOB

ORLANDO V. WILLIAMS, 

 Plaintiff-Appellant,

 versus

ALABAMA DEPARTMENT OF CORRECTIONS, 

 Defendant-Appellee,

WARDEN OF ST. CLAIR CORRECTIONAL FACILITY, et al.,

 Defendants.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

________________________

(May 18, 2016)

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Before WILSON, MARTIN and ROSENBAUM, Circuit Judges.

PER CURIAM: 

Orlando Williams, proceeding pro se, appeals the district court’s grant of 

summary judgment and judgment as a matter of law in favor of the defendants in 

his employment discrimination and retaliation suit. In his second amended 

complaint, Williams named six defendants: (1) the Alabama Department of 

Corrections; (2) Carter Davenport, Warden of St. Clair Correctional Facility; (3) 

Kimberley Weary, Departmental Grievance Officer; (4) James Marsh, Correctional 

Sergeant; (5) Robert Simmons, Correctional Captain; and (6) William Northcutt, 

Correctional Lieutenant (collectively, “the Department”). Williams claimed that 

the Department: (i) intentionally discriminated against him on the basis of his 

disability in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. 

§§ 12101–12213; (ii) failed to reasonably accommodate his disability; and (iii) 

discriminated against him on the basis of his race in violation of Title VII, 42 

U.S.C. § 2000e-2, and 42 U.S.C. § 1983.

1 The district court granted the 

Department’s cross-motion for summary judgment as to all of Williams’s claims 

except his claim for failure to accommodate under the ADA. 

 1 Williams’s complaint also included claims for ADA retaliation, § 1983 retaliation, and 

§ 1983 disability discrimination. The district court granted summary judgment to the 

Department on those claims. Because Williams does not raise them on appeal, he has abandoned 

them. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam). 

 

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On appeal, Williams first argues that the district court erred in granting the 

Department’s motion for reconsideration, reversing the court’s earlier grant of

Williams’s motion to compel disclosures or discovery. Second, he argues that the 

district court erred in concluding that the Department could not be sanctioned 

under Federal Rule of Civil Procedure 37 because it had not violated a court order. 

Third, Williams argues that the district court misapplied the summary judgment 

standard and did not consider evidence he presented showing he was disabled due 

to his Post Traumatic Stress Disorder (“PTSD”) diagnosis and substantially limited 

in his ability to work. Fourth, he argues that the district court erred in holding that 

he had not established a genuine issue of material fact as to his Title VII and 

§ 1983 race discrimination claims. Finally, Williams argues that the district court 

erred in granting the Department’s motion for judgment as a matter of law for his 

failure-to-accommodate claim and in denying his motion for a new trial.2

 

I. 

We review a district court’s discovery decisions for an abuse of discretion. 

See Holloman v. Mail-Well Corp., 443 F.3d 832, 837 (11th Cir. 2006). A district 

court is allowed a range of choice in such matters, and we will not second-guess 

 2 The Department argues that the district court lacked subject matter jurisdiction to 

adjudicate Williams’s claims due to his failure to timely file suit within 90 days of receiving his 

right-to-sue letter from the Equal Employment Opportunity Commission. We conclude that even 

if Williams missed the 90 day deadline, this failure was not jurisdictional. See Zipes v. Trans 

World Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127, 1132 (1982) (holding that filing a 

timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit). We 

therefore proceed to the merits of Williams’s claims. 

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the district court’s actions unless they reflect a “clear of error judgment.” United 

States v. Kelly, 888 F.2d 732, 745 (11th Cir. 1989). 

The district court did not abuse its discretion in reconsidering its order to 

compel the Department to produce discovery. The district court’s scheduling order 

stated that it would automatically deny any motions related to a discovery dispute 

if the parties did not first attempt to resolve the dispute by communicating with 

each other in meaningful way. The grant of the motion to reconsider and denial of 

Williams’s motion to compel reflected the court’s determination that Williams had 

not properly attempted to resolve the dispute before filing his motion. As to 

Williams’s argument that he had a right to respond to the Department’s motion for 

reconsideration, the record demonstrates that Williams had in fact responded to the 

motion. Nothing in the record shows clear error on the part of the district court 

regarding its handling of this discovery dispute. 

II. 

In considering an appeal of Rule 37 sanctions, we are “limited to a search 

for an abuse of discretion and a determination that the findings of the trial court are 

fully supported by the record.” Serra Chevrolet, Inc. v. Gen. Motors Corp., 446 

F.3d 1137, 1146–47 (11th Cir. 2006) (quotation omitted). Under Rule 37(b)(2)(A), 

“[i]f a party or a party’s officer, director, or managing agent—or a witness . . . fails 

to obey an order to provide or permit discovery,” the court may impose sanctions. 

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Rule 37(c)(1) further states that, “[i]f a party fails to provide information or 

identify a witness as required . . . , the party is not allowed to use that information 

or witness to supply evidence on a motion, at a hearing, or at a trial.” Id. 

The district court did not abuse its discretion in denying Williams’s request 

for Rule 37 sanctions. There was no court order regarding discovery, so Rule 

37(b) sanctions do not come into play. Similarly under Rule 37(c), nothing in the 

record shows the Department failed to disclose or supplement its disclosures as 

necessary. The court did not abuse its discretion in denying sanctions. 

III. 

We review a district court’s grant of summary judgment de novo, applying 

the same legal standard used by the district court and drawing all factual inferences 

in the light most favorable to the nonmoving party. Johnson v. Bd. of Regents of 

Univ. of Georgia, 263 F.3d 1234, 1242–43 (11th Cir. 2001). Summary judgment is 

appropriate when “the pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits . . . 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 

(1986) (quotation omitted). 

The ADA prohibits employers from “discriminat[ing] against a qualified 

individual on the basis of disability in regard to . . . discharge of employees, 

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employee compensation, job training, and other terms, conditions, and privileges 

of employment.” 42 U.S.C. § 12112(a). We analyze ADA discrimination claims 

under the McDonnell Douglas3 burden-shifting framework. See Holly v. Clairson 

Indus., L.L.C., 492 F.3d 1247, 1255 (11th Cir. 2007). To establish a prima facie

case of disability discrimination under the ADA, a plaintiff must show that: (1) he 

is disabled; (2) he was a “qualified individual” at the relevant time; and (3) he was 

discriminated against because of his disability. Wood v. Green, 323 F.3d 1309, 

1312 (11th Cir. 2003) (quotation omitted). 

An adverse employment action is a necessary element of a disability 

discrimination claim. Doe v. Dekalb Cty. Sch. Dist., 145 F.3d 1441, 1445 (11th 

Cir. 1998). “An employment action is considered ‘adverse’ only if it results in 

some tangible, negative effect on the plaintiff’s employment.” Lucas v. W.W. 

Grainger, Inc., 257 F.3d 1249, 1261 (11th Cir. 2001). The question of whether an 

employment action is adverse is objective: the plaintiff “must demonstrate that a 

reasonable person in his position would view the employment action in question as 

adverse.” Doe, 145 F.3d at 1448–49. 

We presume that employee resignations are voluntary unless an employer 

forces the resignation by coercion, duress, or misrepresentation of a material fact. 

Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir. 1995) (per curiam). 

 3 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).

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In evaluating whether a resignation was forced, we consider whether: (1) the 

employee was given an alternative to resignation; (2) the employee understood the 

nature of the choice he was given; (3) the employee was given a reasonable time in 

which to choose; (4) the employee was permitted to select the effective date of the 

resignation; and (5) the employee had the advice of counsel. Id. A resignation 

may be voluntary even when the only alternative is possible termination for cause. 

Id. 

The district court did not err in granting summary judgment for the 

Department on Williams’s ADA disability discrimination claim because there was 

no evidence that he suffered an adverse employment action. He therefore failed to

present a prima facie case. First, Williams did not argue that the formal warnings 

or suspensions he had received were given on account of his disability. Therefore,

we understand him to be challenging his resignation. However, his resignation 

was voluntary, and does not constitute an adverse employment action. 

The evidence established that Williams had an option other than resignation. 

He was offered a pre-dismissal hearing in which he could have presented 

information to explain why the Department should not terminate his employment. 

Beyond that, he received a memorandum two months before he resigned which 

detailed his options, prior disciplinary history, and current charges. The district 

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court did not err in determining that Williams failed to establish a prima facie case 

of disability discrimination.

IV. 

Title VII and § 1983 prohibit employers from discriminating against 

employees on the basis of their race. See 42 U.S.C. §§ 1983, 2000e-2. A plaintiff 

in a Title VII or § 19834 action may show discrimination through either direct or 

circumstantial evidence. Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 

1999). In evaluating disparate treatment claims supported by circumstantial 

evidence, we use the McDonnell Douglas framework. Wilson v. B/E Aerospace, 

Inc., 376 F.3d 1079, 1087 (11th Cir. 2004). 

Under McDonnell Douglas, the plaintiff must establish a prima facie case of 

discrimination by showing that he was: (1) a member of a protected class; (2) 

qualified to do the job; (3) subjected to an adverse employment action; and (4) 

treated less favorably than similarly situated individuals outside his protected class. 

Holland v. Gee, 677 F.3d 1047, 1055 (11th Cir. 2012). A plaintiff must show that 

he is similarly situated “in all relevant aspects” to employees outside his protected 

class. See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (per curiam). 

Even if a plaintiff and comparator are similar in some respects, differences in their 

 4 Claims under § 1983 have the same elements of proof and analytical framework as 

claims under Title VII. See Stallworth v. Shuler, 777 F.2d 1431, 1433 (11th Cir. 1985). 

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overall record may render them not “similarly situated” for purposes of 

establishing a prima facie case. See Knight v. Baptist Hosp. of Miami, Inc., 330 

F.3d 1313, 1316–19 (11th Cir. 2003) (per curiam). 

Williams has not established a prima facie case of race discrimination. He

did not identify a similarly situated employee whom the Department treated more 

favorably than it treated him. In his second amended complaint, Williams stated 

that the Department provided an accommodation to a white co-worker. In his 

deposition, Williams stated that the co-worker was a white correctional officer who 

was allowed to work 8-hour shifts. However, Williams did not explain why the 

Department allowed the co-worker to work shortened shifts. Neither did he

present any evidence that the co-worker had a disability that was similar to 

Williams’s. Finally, Williams failed to establish that he and the co-worker had a 

similar work and disciplinary history. 

The only other information Williams presented concerning the co-worker

was an unmarked log-in sheet showing that, on a certain day, the co-worker

worked in the lobby from 6:00 a.m. to 2:00 p.m. This log-in sheet alone is not 

sufficient to establish that the Department treated a similarly situated employee

more favorably than Williams. The district court did not err in granting summary 

judgment on Williams’s Title VII and § 1983 claims. 

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V. 

We review a district court’s grant of a motion for judgment as a matter of 

law de novo, “considering only the evidence that may properly be considered and 

the reasonable inferences drawn from it in the light most favorable to the 

nonmoving party.” Rossbach v. City of Miami, 371 F.3d 1354, 1356 (11th Cir. 

2004) (per curiam). Although we give liberal construction to the pleadings of pro 

se litigants, they still must conform to procedural rules. Albra v. Advan, Inc., 490 

F.3d 826, 829 (11th Cir. 2007) (per curiam). 

Within 14 days after filing the notice of appeal, the appellant must either 

“order from the reporter a transcript of such parts of the proceedings not already on 

file as the appellant considers necessary,” or “file a certificate stating that no

transcript will be ordered.” Fed. R. App. P. 10(b)(1). “If the appellant intends to 

urge on appeal that a finding or conclusion is unsupported by the evidence or is 

contrary to the evidence, the appellant must include in the record a transcript of all 

evidence relevant to that finding or conclusion.” Id. 10(b)(2). We will affirm the 

district court’s finding where the appellant fails to comply with this rule because 

we are unable to review the alleged error. See Loren v. Sasser, 309 F.3d 1296, 

1304 (11th Cir. 2002) (per curiam).

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Williams’s reasonable accommodation claim proceeded to trial on May 4, 

2015. The Department moved for judgment as a matter of law after Williams 

presented his case-in-chief and the court granted the motion. The court denied 

Williams’s motion for a new trial. 

In his notice of appeal and brief, Williams specifically designated for review 

the district court’s final judgment granting the Department’s motion for judgment 

as a matter of law and the court’s order denying his motion for a new trial. 

However, Williams did not provide a transcript of the trial proceedings on which 

the district court relied in finding that he had not presented evidence that a 

reasonable accommodation existed that would have allowed him to perform the 

essential functions of his job. The final judgment makes clear that Williams 

presented a case-in-chief, but the record before us does not include the evidence 

relevant to the district court’s finding. Thus, Williams has not complied with the 

requirements of Rule 10(b)(2), and we cannot review the errors he alleges. 

AFFIRMED. 

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