FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Aug. 26, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 07-14722

Non-Argument Calendar

________________________

D. C. Docket No. 06-20266-CV-KMM

WANDA THOMAS, 

Plaintiff-Appellant, 

versus 

MIAMI VETERANS MEDICAL CENTER, 

ALL DEFENDANTS, et al., 

Defendants, 

SECRETARY R. JAMES NICHOLSON, 

Department of Veterans Affairs, 

Defendant-Appellee. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(August 26, 2008)
Thomas also argues on appeal that she has a valid Fourteenth Amendment equal

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protection and due process claim along with a valid 42 U.S.C. § 1981 claim. Thomas failed to

raise these claims until she opposed the VA’s motion for summary judgment. Accordingly, she

has waived these issues on appeal. Gilmour v. Gates, McDonald and Co., 382 F.3d 1312, 1314-

15 (11th Cir. 2004) (a party cannot amend her complaint to add a new claim through argument in

a brief opposing summary judgment).

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Before DUBINA, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

I.

Wanda Thomas, an African-American woman, appeals pro se the district

court’s grant of summary judgment to the defendant, Secretary of the Department

of Veterans Affairs (“the VA”), in her employment discrimination action brought

pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.

§ 2000e-16. On appeal, Thomas argues that evidence of a single racial comment

by her supervisor and her subsequent firing after filing a complaint with the Equal

Employment Opportunity Commission (“EEOC”) was sufficient to support her

hostile work environment, disparate treatment, and retaliation claims.1

II.

We review a district court’s grant of summary judgment de novo and apply

the same standards as the district court applied. Sierra Club, Inc. v. Leavitt, 488

F.3d 904, 911 (11th Cir. 2007). “Summary judgment is appropriate when ‘there is

no genuine issue as to any material fact and . . . the moving party is entitled to a
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judgment as a matter of law.’” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085

(11th Cir. 2004) (quoting Fed. R. Civ. P. 56(c)). “To survive a motion for

summary judgment, the nonmoving party must demonstrate that there is a ‘genuine

issue for trial.’” Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227,

1231 (11th Cir. 2006) (citation omitted). “Pro se pleadings are held to a less

stringent standard than pleadings drafted by attorneys and will, therefore, be

liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.

1998). 

A. Hostile-Work-Environment

Title VII prohibits discrimination in employment based upon race or color. 

42 U.S.C. 2000e-16(a). “A federal employee must pursue and exhaust her

administrative remedies as a jurisdictional prerequisite to filing a Title VII action.” 

Crawford v. Babbitt, 186 F.3d 1322, 1326 (11th Cir. 1999). 

Federal sector employees who believe that they have been subject to

discrimination must initiate contact with an EEOC counselor within 45 days of the

effective date of a personnel action. See 29 C.F.R. § 1614.105(a)(1). An agency,

however, “shall extend the 45-day time limit in paragraph (a)(1) of this section

when the individual shows that . . . he or she did not know and reasonably should

not have known that the discriminatory matter or personnel action occurred.” Id.
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§ 1614.105(a)(2). An agency shall dismiss a complaint that fails to comply with

the time limits in § 1614.105. Id. § 1614.107(a)(2). A federal employee’s failure

to follow these administrative procedures is grounds for dismissal. See Crawford,

186 F.3d at 1326-27.

The record here demonstrates that the 45-day period for contacting an EEOC

counselor based on the supervisor’s racial comment began in August or September

of 2004. The latest date by which Thomas was required to initiate contact with an

EEOC counselor was November 14, 2004, making Thomas’s contact with an

EEOC counselor on January 20, 2005, untimely. Therefore, we conclude that the

VA was entitled to summary judgment on Thomas’s hostile work environment

claim. 

B. Disparate Treatment

Under Title VII, it is unlawful for a private employer “to discharge any

individual, or otherwise to discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such

individuals race.” 42 U.S.C. § 2000e-2(a)(1). As noted above, Title VII contains a

separate provision that applies to federal agencies. See id. § 2000e-16(a) (“All

personnel actions affecting employees . . . in executive agencies . . . shall be made

free from any discrimination based on race [or] color.”). For the purpose of
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deciding this appeal, we conclude that, despite the differences in language, Title

VII places the same restrictions on federal agencies as it does on private

employers. See Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007).

 In evaluating a Title VII disparate treatment claim supported by

circumstantial evidence, we use the McDonnell Douglas Corp. v. Green, 411 U.S.

792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) analysis. Wilson v. B/E Aerospace,

Inc., 376 F.3d at 1087. “Under this framework, the plaintiff first has the burden of

establishing a prima facie case of discrimination, which creates a rebuttable

presumption that the employer acted illegally.” Id. at 1087. A prima facie case of

disparate treatment is established when the plaintiff demonstrates that she was “a

qualified member of a protected class and was subjected to an adverse employment

action in contrast with similarly situated employees outside the protected class.” 

Id. “The methods of presenting a prima facie case are not fixed; they are flexible

and depend to a large degree upon the employment situation.” Id.

In cases involving alleged racial bias in the application of discipline for

violation of work rules, the plaintiff must demonstrate “(a) that [s]he did not

violate the work rule, or (b) that [s]he engaged in misconduct similar to that of a

person outside the protected class, and that the disciplinary measures enforced

against [her] were more severe than those enforced against the other persons who
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engaged in similar misconduct.” Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir.

1989). A plaintiff is similarly situated to another employee only if “the quantity

and quality of the comparator's misconduct [are] nearly identical.” Burke-Fowler

v. Orange County, Fla., 447 F.3d 1319, 1323 (11th Cir. 2006) (citing Maniccia v.

Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). “If a plaintiff fails to show the

existence of a similarly situated employee, summary judgment is appropriate

where no other evidence of discrimination is present.” Wilson, 376 F.3d at 1092

(citations and quotation marks omitted) (emphasis added). 

The record demonstrates that Thomas failed to identify or present any

evidence of a similarly situated employee who was not a member of a protected

class, but who received less severe disciplinary sanctions. Therefore, we conclude

that she failed to establish a prima facie case for disparate treatment.

C. Retaliation

To establish a prima facie case of retaliation forbidden by Title VII, the

plaintiff must normally show that: “(1) she participated in an activity protected by

Title VII; (2) she suffered an adverse employment action; and (3) there is a causal

connection between the participation in the protected activity and the adverse

employment decision.” Gupta v. Florida Bd. of Regents, 212 F.3d 571, 587 (11th

Cir. 2000) (setting forth prima facie elements); Burlington N. & Santa Fe Ry. Co.
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v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415, 165 L. Ed. 2d 345 (2006) (The

Supreme Court has held that in order to sustain a Title VII retaliation claim, an

employee must show that “a reasonable employee would have found the

challenged action materially adverse.”).

“To establish a causal connection, a plaintiff must show that the

decision-makers were aware of the protected conduct, and that the protected

activity and the adverse action were not wholly unrelated.” Gupta, 212 F.3d at 590

(internal citation &alteration omitted). “Discrimination is about actual knowledge,

and real intent, not constructive knowledge and assumed intent. When evaluating a

charge of employment discrimination, then, we must focus on the actual

knowledge and actions of the decision-maker.” Walker v. Prudential Prop. & Cas.

Ins. Co., 286 F.3d 1270, 1274 (11th Cir. 2002) (internal citations omitted). Once a

prima facie case is established, the burden shifts to the employer to rebut the

presumption of retaliation by producing legitimate reasons for the adverse action. 

Sullivan v. Nat'l R.R. Passenger Corp., 170 F.3d 1056, 1059 (11th Cir. 1999). If

the employer offers legitimate reasons, “the presumption of retaliation disappears.” 

Id. “The plaintiff must then show that the employer's proffered reasons for taking

the adverse action were actually a pretext for prohibited retaliatory conduct.” Id.

Even assuming arguendo that Thomas established a prima facie case, the
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VA stated that it fired her for failure to follow supervisory instructions, wilful

resistance to the instructions, and disrespectful conduct. These reasons were

legitimate and non-discriminatory. Thomas did file a complaint with the EEOC

alleging race discrimination, and while an EEOC complaint constitutes protected

activity under Title VII, the record indicates no evidence, as opposed to conclusory

allegations, that the VA fired her for any reasons other than legitimate, nondiscriminatory reasons. Thus, Thomas failed to show that the VA’s proffered

reasons for taking the adverse action were actually pretexts for the prohibited

retaliatory conduct. Accordingly, we conclude that the district court did not err in

granting the VA’s summary judgment motion.

AFFIRMED.