[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 20-11185

Non-Argument Calendar

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D.C. Docket No. 1:17-cv-04731-CAP

ODIE GRAY, 

 Plaintiff-Appellant,

versus

DELOITTE LLP, 

DELOITTE & TOUCHE LLP, 

 Defendants-Appellees.

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Appeal from the United States District Court

for the Northern District of Georgia

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(March 11, 2021)

Before NEWSOM, LAGOA, and BLACK, Circuit Judges.

PER CURIAM: 

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Odie Gray, proceeding pro se, appeals the district court’s grant of summary 

judgment in favor of Deloitte LLP and Deloitte & Touche LLP (Deloitte) on his 

claims of racial discrimination and retaliation, in violation of Title VII of the Civil 

Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e-2(a), 2000e-3(a), and 42 

U.S.C. § 1981. Gray asserts multiple issues on appeal, which we address in turn. 

After review,1 we affirm the district court. 

I. DISCUSSION

A. Direct Evidence of Discrimination

Gray asserts the district court erred in applying the framework of McDonnell 

Douglas Corp. v. Green, 411 U.S. 792 (1973) instead of the framework of Village

of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 

(1977). He contends the district court ignored direct evidence of discrimination he 

provided. 

As an initial matter, the district court did not err in refusing to analyze 

Gray’s claims using the factors in Arlington Heights because that case is applicable 

only to equal protection claims based on legislative action. See Hillcrest Prop., 

LLP v. Pasco Cty., 915 F.3d 1292, 1300 (11th Cir. 2019).

1

 We review a district court’s grant of summary judgment de novo, viewing the evidence 

in the light most favorable to the non-moving party. Brooks v. Cnty. Comm’n of Jefferson Cnty., 

446 F.3d 1160, 1161-62 (11th Cir. 2006). Title VII claims and 42 U.S.C. § 1981 claims are 

evaluated using the same analytical framework. Standard v. A.B.E.L. Servs., 161 F.3d 1318, 

1330 (11th Cir. 1998). 

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A plaintiff may establish a Title VII claim through the introduction of direct 

or circumstantial evidence. Dixon v. The Hallmark Cos., 627 F.3d 849, 854 (11th 

Cir. 2010). Direct evidence is evidence which, if believed, would prove the 

existence of a fact in issue without inference or presumption. Jones v. Gulf Coast 

Health Care of Del., LLC, 854 F.3d 1261, 1270-71 (11th Cir. 2017). Remarks 

unrelated to the decision-making process are not direct evidence of discrimination. 

Standard v. A.B.E.L. Servs., 161 F.3d 1318, 1330 (11th Cir. 1998). Absent direct 

evidence, we employ the McDonnell Douglas analytical framework. Bryant v. 

Jones, 575 F.3d 1281, 1307 (11th Cir. 2009). 

The district court did not err in applying the McDonnell Douglas burden 

shifting framework because Gray relied solely on circumstantial evidence in 

support of his discrimination claims. See Bryant, 575 F.3d at 1307. The only 

evidence Gray argues constituted direct evidence of discrimination is: (1) the fact 

that a white female without prior cyber-security or management experience worked 

in a supervisory capacity over him even though he was more qualified to work as a 

supervisor, (2) a comment made by one of his supervisors that “all black people 

look alike,” and (3) a historical pattern of racial discrimination by Deloitte.

The fact a white female without prior experience was working in a 

supervisory capacity over Gray is not direct evidence of discrimination because it 

is not evidence which, if believed, would prove the existence of a fact in issue 

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without inference or presumption. See Jones, 854 F.3d at 1270-71. Using this fact 

as evidence of discrimination requires the inference that she was promoted over 

him because she is white and he is not; thus, because this evidence requires an 

inference to support his claim of discrimination it is not direct evidence. See id. 

Second, the comment by a supervisor does not qualify as direct evidence of 

discrimination because it does not relate to the decision-making process regarding 

the allegedly discriminatory actions taken by Deloitte—the negative performance 

reviews, a decrease in assigned work, and lack of credit for projects he 

conceptualized. See Standard, 161 F.3d at 1330. Using this statement as evidence 

of discrimination requires multiple inferences that: (1) the supervisor held 

negative opinions of African Americans’ work performance, in addition to his 

belief that all African Americans look alike, and (2) that negative opinion 

influenced him in rating Gray, assigning work to him, or assigning credit for 

projects. Lastly, Gray’s evidence of Deloitte’s purported historical pattern of racial 

discrimination is not direct evidence because it requires the inference that the 

employer, consistent with the historical pattern, continues to discriminate based on 

race. Accordingly, because all the evidence Gray points to as direct evidence 

merely suggests—rather than directly proves—discrimination on the part of 

Deloitte, the court did not err in concluding it was circumstantial evidence and 

applying the McDonnell Douglas framework. 

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B. Prima Facie Case and Pretext

Gray contends the district court erred in granting summary judgment in 

favor of Deloitte on his retaliation and discrimination claims because he 

established prima facie cases and also argued, in reply, that he established pretext. 

Under the McDonnell Douglas framework, a plaintiff must first make out a 

prima facie case. Holland v. Gee, 677 F.3d 1047, 1055 (11th Cir. 2012). A 

plaintiff may establish a prima facie case of retaliation by presenting evidence 

showing that: (1) he engaged in protected conduct, (2) he suffered an adverse 

employment action, and (3) there is a causal connection between the protected 

conduct and the adverse employment action. Pennington v. City of Huntsville, 261 

F.3d 1262, 1266 (11th Cir. 2001). A plaintiff establishes a prima facie case of race 

discrimination by showing, among other things, that he was: (1) subject to an 

adverse employment action and (2) treated differently than a similarly situated 

employee outside his protected class. Knight v. Baptist Hosp. of Miami, Inc., 330

F.3d 1313, 1316 (11th Cir. 2003). If the plaintiff establishes a prima facie case, 

the employer then has the burden of production to articulate a legitimate reason for 

its actions. Holland, 677 F.3d at 1055. If the employer satisfies its burden, thus 

rebutting the presumption, the plaintiff must then offer evidence that the 

employer’s reason is pretextual. Id. 

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Even assuming Gray established a prima facie case of retaliation or 

discrimination, we affirm the district court’s grant of summary judgment in favor 

of Deloitte because Gray has failed to properly challenge on appeal one of the 

grounds on which the district court based its judgment—specifically, that he failed 

to show Deloitte’s legitimate reasons for its actions were pretexts for 

discrimination or retaliation. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 

678, 680 (11th Cir. 2014) (stating to obtain reversal of a district court judgment 

that is based on multiple, independent grounds an appellant must convince us that 

every stated ground for the judgment against him is incorrect, and when an 

appellant fails to properly challenge on appeal one of the grounds on which the 

district court based its judgment, he is deemed to have abandoned any challenge of 

that ground). Gray failed to argue the issue of pretext in his initial brief’s 

argument section. While he argued in his reply brief that he had proven pretext, 

raising an issue in reply is not sufficient for this Court to address its merits even if 

the party is pro se. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008)

(stating although we liberally construe the pleadings of pro se litigants, issues that 

a pro se litigant has not clearly raised on appeal are still deemed abandoned and we 

will not address arguments raised for the first time in a reply brief). And, while 

Gray cited to and quoted law discussing pretext in his initial brief in support of 

other arguments, he never argued the district court’s pretext determinations were 

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erroneous. Therefore, he has abandoned any challenge to the court’s pretext 

determination. See Sapuppo, 739 F.3d at 680; Timson, 518 F.3d at 874.

Alternatively, Gray has abandoned any challenge to the district court’s 

conclusion that he failed to establish a prima facie case of retaliation by failing to 

properly challenge on appeal one of the grounds on which the district court based 

its judgment—specifically, that he failed to satisfy the causal connection element. 

See Sapuppo, 739 F.3d at 680; Pennington, 261 F.3d at 1266. The district court 

found that he had failed to establish a prima facie case because he did not show he 

engaged in protected conduct and because, even if he did prove he engaged in 

protected conduct, he did not establish a causal connection between the conduct 

and the adverse actions taken by Deloitte. On appeal, Gray argues only the court 

erred in finding he had not established a prima facie case of retaliation because he 

had engaged in protected activity, or at the very least conduct that should be 

protected. However, he has failed to argue he satisfied the causal element in his 

initial brief’s argument section. 

Gray has also waived any challenge to the district court’s conclusion that he 

failed to establish a prima facie case of discrimination because he failed to identify 

a similarly situated comparator. The district court found that Gray failed to 

establish a prima facie case of discrimination because: (1) he failed to establish a 

sufficiently adverse employment action and (2) he failed to identify a similarly 

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situated comparator. He raised four objections to the magistrate judge’s report and 

recommendation, arguing: (1) the magistrate judge did not consider the evidence 

in a light most favorable to him, (2) the magistrate judge validated conjecture from 

Deloitte regarding how its review process should work instead of requiring 

evidence of how it actually worked, (3) that negative performance reviews do 

constitute an adverse employment action, and (4) the magistrate judge failed to 

consider the negative performance reviews in the context of his other claims. 

Gray, after being warned of the consequences for failing to object, did not object to 

the magistrate judge’s conclusion that he failed to establish a prima facie case of 

discrimination because he failed to identify a similarly situated comparator. 

Therefore, he has waived any challenge to that conclusion on appeal. See 11th Cir. 

R. 3-1 (stating a party who fails to object to a magistrate judge’s findings or 

recommendations in a report and recommendation “waives the right to challenge 

on appeal the district court’s order based on unobjected-to factual and legal 

conclusions if the party was informed of the time period for objecting and the 

consequences on appeal for failing to object”). 

C. Extension to Respond to Motion for Partial Summary Judgment

Gray argues his prior counsel moved to amend his motion for partial 

summary judgment to correct dates that would not impact Deloitte’s response, but 

Deloitte used Gray’s motion to amend to make legally significant changes to its 

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prior submission which the court allowed without considering how doing such 

could prejudice Gray. He also argues the magistrate judge abused his discretion in 

granting Deloitte an extension to file its response and cross motion without 

considering how the extension would prejudice Gray. 

We are required to examine our jurisdiction, which we review de novo. 

United States v. Lopez, 562 F.3d 1309, 1311 (11th Cir. 2009). Generally, we have

jurisdiction over appeals from final orders of the district court, and a party must 

raise all claims of error in a single appeal following the final judgment on the 

merits. See 28 U.S.C. § 1291; Flanagan v. United States, 465 U.S. 259, 263

(1984). However, “[t]he law is settled that [we] are without jurisdiction to hear 

appeals directly from federal magistrates.” United States v. Renfro, 620 F.2d 497, 

500 (5th Cir. 1980).2

 An appeal from the final judgment does not bring up for 

review an interlocutory order by a magistrate judge that was not objected to or 

brought to the attention of the district court, as it would otherwise constitute a 

direct appeal from a magistrate judge’s order to us. United States v. Schultz, 565 

F.3d 1353, 1359-61 (11th Cir. 2009). 

Gray did not appeal the complained of magistrate judge’s orders to the 

district court, which has deprived us of jurisdiction to hear his arguments that the 

2

 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this 

Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior

to close of business on September 30, 1981. 

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district court erred in granting Deloitte an extension to respond to, and 

cross-motion on, his motion for partial summary judgment on his retaliation claims

and in allowing Deloitte to amend its response. See Schultz, 565 F.3d at 1359. 

Accordingly, we dismiss this portion of Gray’s appeal for lack of jurisdiction. 

D. Granting Motion for Partial Summary Judgment before End of Discovery

Gray asserts the district court erred in granting Deloitte’s motion for partial 

summary judgment on his retaliation claims before the end of discovery. 

Gray raised four objections to the magistrate judge’s report and 

recommendation on his retaliation claims, objecting to the conclusions that: (1) he 

had not provided direct evidence of retaliation, (2) evidence disclosed in an EEOC 

mediation does not fall under the protected activity umbrella, (3) an e-mail he sent 

could have reasonably led Deloitte to believe he had additional records, and (4) he 

had failed to make a prima facie case because he did not establish a causal 

connection between the mediation and his termination. He did not object to the 

magistrate judge’s report and recommendation on the basis that it was improper to 

grant summary judgment before the conclusion of discovery—after being warned 

of the consequences for failing to object—therefore he has waived that argument 

on appeal. See 11th Cir. R. 3-1. 

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E. Injunctive Relief

Gray also contends the district court erred in not considering the 

applicability of injunctive relief. The district court did not err in failing to sua 

sponte consider the applicability of injunctive relief. Contrary to Gray’s assertion, 

the record does not contain a request for injunctive relief. Gray’s complaint 

requested declaratory relief, but did not mention injunctive relief. Further, the 

docket does not contain a motion for injunctive relief. The district court did not err 

in failing to consider granting Gray injunctive relief because he never moved for it. 

F. Withdrawal of Attorney

Gray asserts the district court violated his right to due process by allowing 

his attorney to withdraw, in not appointing him a new attorney, and in failing to 

investigate alleged discrepancies during the proceeding. “It is a cardinal rule of 

appellate review that a party may not challenge as error a ruling invited by that 

party.” FTC v. AbbVie Prods. LLC, 713 F.3d 54, 65 (11th Cir. 2013) (quotations 

and alterations omitted). 

The right to procedural due process is violated if an individual is: 

(1) deprived of a constitutionally protected interest (2) by government action 

(3) without constitutionally adequate process. Grayden v. Rhodes, 345 F.3d 1225, 

1232 (11th Cir. 2003). “[A]t a minimum, the Due Process Clause requires notice 

and the opportunity to be heard incident to the deprivation of life, liberty or 

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property at the hands of the government.” Id. There is no constitutional right to 

counsel in a civil case. Bass v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999). 

The district court did not violate Gray’s right to procedural due process. 

First, any potential error in allowing Gray’s counsel to withdraw was invited by 

Gray’s express consent to the motion and request that the district court remove the 

firm as his counsel of record, such that, he cannot challenge that ruling as 

erroneous before us. See AbbVie Prods., 713 F.3d at 65. Second, the district 

court’s failure to appoint him new counsel, or investigate into the adequacy of his 

prior representation, did not run afoul of his right to due process because he was 

not deprived of a constitutionally protected interest and he received 

constitutionally adequate process. See Bass, 170 F.3d at 1320; Grayden, 345 F.3d 

at 1232. Lastly, the clerk’s handling of his evidence and filings did not violate his 

right to due process of the law because he was not deprived of a constitutionally 

protected interest. See Grayden, 345 F.3d at 1232. 

G. Motion for Reconsideration

Finally, in reply, Gray contends the district court erred in not granting his 

motion for reconsideration. Gray has failed to assert the issue of whether the 

district court erred in denying his motion for reconsideration in his initial brief’s 

argument section, thus, he has abandoned the claim and, even though he is pro se, 

we will not address its merits. See Timson, 518 F.3d at 874. While he did argue in 

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his reply brief that his motion was improperly denied, raising an issue in reply is 

not sufficient for us to address its merits, even if the party is pro se. See id. 

Accordingly, we affirm the district court’s denial of his motion for reconsideration. 

II. CONCLUSION

For the reasons stated above, we affirm the district court’s grant of summary 

judgment in Deloitte’s favor and its denial of Gray’s motion for reconsideration. 

We dismiss, for lack of jurisdiction, the portion of the appeal where Gray argues 

the magistrate judge erred in granting Deloitte an extension of time and in allowing 

Deloitte to amend its response. 

AFFIRMED IN PART AND DISMISSED IN PART.

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