### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT AUGUST 22, 2003 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

_________________________________

No. 02-15596

_________________________________ D.C. Docket N

o. 00-01575 CV-T- 17B DONALD MAYNARD, Plaintiff-Appel lant,

versus BOARD OF REGENTS OF THE DIVISION OF UNIVERSITIES OF THE FLORIDA DEPARTMENT OF EDUCATION

, acting by and through the Universit

y of South Florida, Defendant-Appellee.

________________________________ Appeal from the United States District Court for the Middle Dist

rict of Florida

_________________________________

(August 22, 2003)* Honorable Jane A. Restani, Judge, United States Court of International Trade, sitting by

designation. 2 Before MARCUS and WILSON, Circuit Jud ges, and RESTANI * , Judge. RESTANI, Judge: This is an appeal of

a final judgm

ent of the United St

ates District Cour

t for the Middle District of Florida, Tampa Division, entered on Defendant-Appellee University of South Florida’s (“USF”) Motion for Summary Judgment. PlaintiffAppellant Donald Ma

ynard asserte

d certain violations o f the United State s and Florida Constitutions, as well as various statutory claims and a breach of contract claim, all arising out of h is dismissal from a USF medical residen cy program. As did the district court

, we find USF im

mune from

suit on all but the fede

ral Title VII employment claim

and direct the district court to dismiss the non-Title VII claims for lack of jurisdiction. We affirm judgment for USF on the Title VII claim. FACTS Appellant Maynard is a grad uate of Meharry Medical Coll ege in Tennessee. After completing medical school, Maynard joined USF’s surgical residency program, which typically lasts five y ears. Through this program, USF supplies residents to local hos

pitals for vary

ing rotation periods a

nd, in return, the hospitals1 As part of the residency program, the fac ulty is required to evaluate residents in the program at least twice a year to assess reside nts’ knowledge, skills, professional attitudes, oral and ethical deve

lopment, and profe

ssional demeanor

, among other thin

gs.

2 At this time, May

nard allegedly

asked Dr. Karl to

identify an

y other prob

lems with Maynard’s performance, and Dr. Karl did not notify him of any other problems. 3 pay USF a fee. To receive som e compensation for their services, residents enter into annual agreem

ents with USF know

n as “House Of

ficer Contracts, ” through which the residents

receive a stipend.These contracts a re limited to one

year and are typically

renewed so long as t

he resident recei

ves acceptable re

views. 1 On April 9, 1999, Dr. Richard Karl, Chairman of the D epartment of Surgery at USF, told Maynard that he would have to repeat his fourth year of residency because he received low scores on his ABSITE exam, a specialty in-service examination that residents across the country take each year. 2 Less than two weeks later, D

r. Karl gave Ma

ynard written

notice that he would b e required to repeat his fourth year of residency. According to Maynard, at no time did Dr. Karl provide Maynar

d with any additi

onal reasons for the

decision. Shortly therea

fter, Mayna

rd met with D

r. Peter Fabri , Associate Dea n and Accreditation Council for Graduate Medical Education, to discuss appealing Dr. Karl’s decision to have him repeat his fourth year. May nard alleges that Dr. Fabri explained that his p roblems were re lated to h ow others p erceived Ma ynard’s3 Maynard wa s born in the Nethe

rland Antilles.

4 The Manual explains the process through which a resident may appeal a decision related to the residency program. The reside nt must first file a letter of dispute with the Chairman of the Program, and then with the Dean of the College of Medicine. The Manual provides that the Dean shall then designate a three-person PRDC consisting of a faculty member selected by

the Department Ch

air, a faculty

member selected

by the appe

llant, and a facu

lty member outside the Department, selected by the other two. 4 culture, his acce

nt, and the way

that he walked. 3 On June 21, 1999, Maynard informed Dr. Karl that he was going to file an appeal and again requested that Dr. Karl give him a

n explanation as to wh

y he was requir

ed to repeat his four

th year of residency. M

aynard claim

s he did not receive a

satisfactory r

esponse. On June 23, 1999, Mayna

rd formally

appealed the decisi

on by filing a lett

er of dispute with the chairman of the residency program and requested that USF designate a threeperson Professional

Dispute Resolution Committee ( “PDRC”) to review his appeal, pursuant to the Resident House Officer Policies and Procedures Manual (“Manual”). 4 In addition, May nard contacted Te

d Williams,

USF’s race r

elations manager, to ex plain tha t he believ ed USF’s actio ns were motiv ated by Maynard ’s

race. Although the details are somewhat unclear, it appears that the two parties ultimately

reached a com

promise under w

hich Maynard w

ould contract as a fourth-year s

urgical resident w

hile performi

ng fifth-year

work. Under this agreement,

Maynard’s w

ork would be review

ed after six m

onths and, if his5 Maynard’s ABSITE scores r anked as follows: in 1996, Maynard ranked in the 2 nd percentile (nationally); in 1997, Maynar d ranked in the 36 th percentile; in 1998, Maynard ranked in the 7 th percentile; in 1999, Maynard ranked in the 5 th percentile; and in 2000 – the y

ear in which Maynard was under particular scrutiny – Maynard ranked in the 2 nd percentile.

6 In the interim, Maynard filed a complaint with the EEOC on which he re ceived a “Notice of Right to Sue” letter in May 2000. Some two ye ars later, Maynard completed a residency program elsewhere. 5 performance

was acceptable,

USF would prom

ote him to fifth year status, e ffective January 2000, so that he could com plete the program

in June 2000 as originall y scheduled. May

nard signed the am

ended fourth-ye

ar contract and dr

opped his appeal. Despite this agreement, however, Maynard continued to request written reasons as to why he was required to repeat his fourth year. On November 10, 1999, Mayna rd received a lett

er identifying s

pecific problem area

s: failure to attend

conferences, c

hanging schedules wit

hout permission, unt

imely eval

uations, and low AB SITE scores. 5 On Decembe r 20, 1999, Dr. Karl

informed May

nard that he was not eligible to be prom oted to the fifth year or to graduate in June 2000. Maynard imm ediately filed a second letter of dispute and, on January 3, 2000, Dr. Fabri informed Maynar d that a PDRC would be forme

d to consider his appea

l. On March 27, 2 000, the PDRC uphe ld Dr. Karl’s decision not to prom ote Maynard. 6 During the deliber ations, the committee members in dependen tly mentioned their perce ptions as to Maynard’s unreliability,

irresponsibility

, poor judgme

nt, failure to im

prove, and lack of6

knowledge. Dr.Karl forma lly notified May

nard that he was te

rminated from

the program on April 17, 2000

. On July 31, 2000, Maynard filed a nine-count complaint in the district court against USF, ass erting various claim s for violations of the

Florida Constitution and the United States Constitution, for violations of the Florida Civil Rights Act and Title VII of the United States Code, and for breach of contract. On October 12, 2000, the district court entered a Case Management and Scheduling Order establishing a discove

ry cut-off dat

e of Decembe

r 31, 2001, and setti

ng the dispositive motion d

eadline for Januar

y 31, 2002. On S eptember 7, 2 001, the district court ente

red an order extend

ing the discovery

cut-off to January

31, 2002. On January 4, 2002, Maynard filed a motion for leave to exceed ten depositions and to re-o

pen nine depositions, w

hich was opposed by

USF. The district court ente

red an order allow

ing four additional depositions and refused t o re-open depositions.Maynard m oved for leave to am

end his complaint

on the last day of the extended discovery period - January 31, 2002. Maynard’ s motion was denied. On February 28, 2002, almost one month after the discovery cut-off, Maynard filed his Amended Motion to Compel discovery. T he district court denied Maynard’ s amended m otion both because it w

as untimely

and because7

Maynard’s counsel represented to the district court that the issues contai

ned within the amended motion and initial motion had been resolved by the parties. USF filed its Motion for S

ummary Judgment on Marc

h 18, 2002. Mayna

rd filed his opposition to summ

ary judgm

ent on April 4, 2002.Maynard serve d a notice of taking a Rule 30(b)( 6) Deposition Duces Tec um on September 6, 2002. On September 10, 2002, the district court granted USF’s Motion for Summ ary Judgment. Appe

llant timely

appealed the final judgment of the district court and we have jurisdic

tion under 28 U.S. C. § 1291.

DISCUSSION I. Preliminary Matters Maynard initial

ly argues that th

e district court er

red in its discovery

rulings and with regard to scheduling. We review the district court’s rulings on discovery issues for abuse of d iscretion. Washington v. Brown & Williamson Tobacco Corp. , 959 F.2d 1566, 1570 (11th Cir. 1992). The discovery orders at issue were all entered by Magistrate Judge Thomas Wilson. Under Fed. R.Civ. P. 72(a), Maynard had ten

(10) days to fil

e any objectio

ns with the district c

ourt judge assigned to the case.He did not object a t all. Because he

failed to time

ly challenge the magistrate’s non-dispostive orders before the district court, Maynard waived his right to appeal those matters here. See, e.g. , Farrow v. We st , 320 F.3d8

1235, 124 9 n.21 (11t h Cir. 2003 ) (“A party failin g to appeal a magistrate ju dge’s order in a nondispositiv

e matter to the

district court m

ay not raise an o

bjection to it on appeal to a circui

t court.”) (citi

ng Stemler v. City of Florence , 126 F.3d 856, 866 n. 9 (6th Cir. 199 7) (failure to cha llenge magistr

ate judge’s discovery order to district court consti

tutes waiver of cl

aim on appeal)). Accordingly , we do not reach these issues. Maynard next argues tha t the dist rict court erred by ruli ng upon US F’s summary judgment motion before Maynard had completed discovery. As explained, at the time of the requests at issue (September 6, 2002), the extended discovery deadline (January 31, 2002) had long since passed, USF’s summ ary judgment m

otion had been pending f or some tim

e, and Maynar

d had already responded five m

onths before the req

uest. We note th

at Maynard did no

t ask the court to stay its summary j udgment decision or alert the court to any additional discovery reque sts that might be f orthcoming, be

cause he was dissat

isfied with a matter that previously was repr esented to the Magis trate Judge as resolv ed. As such, we find that the district court properly proceeded to decide the summary judgment m

otion before it. Maynard also ap

peals the denial of hi s motion to am end the complain

t to (1) assert a reta

liation claim un

der Title VII of

the Civil Rights Act

of 1964, 429

U.S.C. § 2000e-2; and (2) add Dr. Karl as a defendant. We r eview the district court’s refusal to allo w the proposed amendments for a buse of discretion

. Sosa v. Airprint Sys., Inc. , 133 F.3d 1417, 1418 ( 11th Cir. 1998). “ Although ‘[l]e

ave to amend shall be f

reely given wh

en justice so requi

res,’ a m otion to amend m

ay be denied on ‘nume

rous grounds’ such a

s ‘undue delay

, undue prejudice

to the defendants, and futility of the amendment.’” Brewer-Giorg io v. Producers V

ideo, Inc. , 216 F.3d 1281, 1284 ( 11th Cir. 2000) (quoti ng Abramson v. Gonzalez , 949 F.2d 1567, 1581 (11th Cir. 1992). Amending Maynard’s complaint on the last day of the already extended discovery period would have produced more attempts at discovery, del

ayed disposition of

the case, and like

ly prejudiced

USF. In addition, there seems to

be no good reason why

Maynard could not

have made the m

otion earlier. The a

bsence of a Title VII retaliation claim in the ori ginal complaint i s not explained and the i nvolvement of Dr. Karl was known early on. Because we conclude that May

nard has failed to sho

w good cause for the

eleventh hour amendment

, we find that the district court did not a buse its discretion by

enforcing its timetable for disposition of the case. II. Eleventh Amendment Imm unity The distri ct court gr anted summary jud gment to USF on all of Maynard ’s common law

, statutory, a

nd state and federa

l constitutional claim

s, except those7 Apparently, the employment discrimination claim was ac tually made under 42 U.S.C. § 1983, but the district court interpreted the complaint to allege a Title VII cause of action. 42 U.S.C. § 2000e-2.

8 The Eleventh Ame

ndment reads as f

ollows: The Judicial power of th

e United States sha

ll not be construed

to extend to any

suit inlaw or equity, commenced or prosecuted against one of the United

State s by Citizens of another State or by Citizens or Subjects of any Foreign State. U.S. C onst. amend . XI. 10 based on Title VII, 7 finding USF, by virtue of its affil

iation with the Stat

e of Florida, entirely immune from suit under the Eleventh Amendment to the U.S. Constitution. 8 U.S. Const. a mend. XI. Maynard appea ls only the granti

ng of summary judgment on his b

reach of contrac

t claim based on

immunity

, asserting that the State of F lorida has waived im munity for s

uch claims. W

e review the district court’s order granting sum mary jud gment based on E

leventh Amendm

ent immunity de novo

. Hundertmark v . State of Florid a Dept. of Tra

nsp. , 205 F.3d 1272, 1274 (11th Cir. 2000). The parties agree that Florida has waived its sovereign immunity for breach of contract suits in its own courts. See, e.g. , Pan-Am Toba cco Corp. v. De

p’t of Corr. , 471 So.2d 4, 5 (Fla. 1984) (“[W]here the state has entere d into a contract fairly authori

zed by the power

s granted by gene

ral law, the def

ense of sovereign immunity will not protect the

state from ac

tion arising from

the state’s brea

ch of that contract.”) . The issue befor e us is whether Flor

ida has waived its E

leventh9 Maynard ha s also filed suit in sta

te court on the bre

ach of contrac

t claim. 11 Amendme

nt immunity

from suit in fe

deral court for br

each of contract. 9 It is well establis

hed that, absent an e

xpress waiver by

the state, the Eleventh Amendment bars state l aw claims against a state in federal court. See, e.g. , Pennhurst State School & Hosp. v. Halderman , 465 U.S. 89, 9 8-99, 104 S. Ct. 900, 79 L. Ed. 2d 67 (1984). Maynard relies upon the following Florida statutory provision to provide the necessary waiver: The Board of

Regents is hereby

created as a

body corporate w

ith all the powers of a body

corpor ate for a ll the p urpose s create d by, or that may exist under, the provisions

of this chapter or

laws amendat

ory hereof

and shall . . . have po

wer . . . to

contract and be contracted with, to sue and be sued, and to plead and be impleaded in all courts of lawand equ ity. Fla. Stat. § 240.205(4) (1999) (emphasis added). The district court rejected the statute as providing the necessary waiver, citing Coll. Sav. Bank v.

Fl. Prepaid Posts econdary Edu.Expense Bd. , 527 U.S. 666 (1999). In that case, the Suprem e Court failed to fi

nd the requisite wai

ver in the face of Congress’s att empt to impose Lanham Act remedies on state e ntities. The Court held that the state must m ake a clear, une

quivocal declarati

on that it intends to submit it self to federal court jur isdiction. Id. at 676, 119 S. Ct. at 226. “A State does

not consent to suit in fe

deral court me

rely by cons enting to suit in the courts of its own creation.” Id. (citation omitted). Moreover, a state also does10 See Seminole Tribe of Florida v. Florida , 517 U.S. 44, 67, 116 S. Ct. 1114, 1129, 134

L. Ed. 2d 252 (1 996) (finding tha t a state’s Eleve

nth Amendment immuni

ty applies to

suit by its own citizens as well as by those of other states and foreign entities).

12 not “consent to sui

t in federal court merely by stating its intention to ‘sue and be sued.’” Id. There is, howev

er, a slight diffe

rence between the

language at issue in College Savings Bank

and in the case at ha

nd. There, the c

rucial consent was

“to sue and be sued in any

court of compe

tent jurisdiction, ” while here, the statute reads “to sue and be sued in all courts of law and equity.” Nevertheless, we can find no meaningf

ul distinction betwee

n “any cour

t” and “all cour

ts.” Given the Supreme Court ’s emphasis on the breadth 10 and force of Ele venth Amendm

ent immunity , we do not find the n

ecessary expr

ess consent to suit in fe

deral court in this waiver’s languag e. See, e.g. , Edelman v. Jordan , 415 U.S. 651, 673 (1974) 94 S. Ct. 1347, 1360-61, 39 L. Ed. 2d 662 (“In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where sta

ted ‘by the m

ost express language o

r by such overw

helming implications fr

om the text as [

will] leave no r

oom for any

other reasonable construction.’”

); Atascadero Stat

e Hosp. v. Scanl

on , 473 U.S. 234, 241, 105 S. Ct. 3142, 3146, 87 L. Ed. 2d 171 (1985) (“Although a S tate’s general waiver of13

sovereign imm

unity may

subject it to suit in s

tate court, it is not

enough to waive the immunity guaranteed by the Eleven th Amendment.”) (citation omitted). Accordingly,

we find Mayna

rd’s breach of contract claim barred on Eleventh Amendme

nt immunity

grounds and rema

nd for dismissal for lack of juris diction. III. Title VII Discri

mination Claim Maynard next ar

gues that the district

court erred in find

ing that he failed to establish a prima facie discrimination case under Title VII. W e review the district court’s grant of summary judgment de novo

. Watson v. Blue Circle, Inc. , 324 F.3d 1252, 1256 (11th C

ir. 2003). Title

VII makes it

unlawful for an em

ployer “to fail or refuse to h

ire or to discharge

any individual, o

r otherwise to disc

riminate against any indivi

dual with respect t

o his compensatio

n, terms, conditions, or privileges of em

ployment, because of such indivi dual’s race, color, religion, se x, or national origin . . . .” 42 U.S. C. § 2000e-2(a)(1 ). Under Title VII, Mayna

rd is not requi red to prov e directly th at race or ge nder was th e reason fo r the employer’s challenged decision.Rather, in showin g that the employ

er discrimina

ted against him, Maynard may rely on direct or circumstantial ev idence of discriminatio n. See, e.g. , St. Mary’ s Honor Center v. Hicks , 509 U.S. 502, 526 (1993) (“Be cause Title VII toler

ates no racial disc

rimination, sub

tle or otherwise,

we devised a framework t

hat would allow both plaintiffs and the co urts to deal effec

tively with11 Maynard does not rely on the alleged opinions of Dr. Fabri, who was not the decisionmaker, as sufficient direct evidence of discrimination. 14 employment discrimination revealed only through circumstantial evidence.”) (internal quotations and citations omitted). Direct evidence is “evidence, which if believed,

proves [the] exis

tence of [the] fact in issue without inference or presumption.” Merritt v. Dilla rd Paper Co. , 120 F.3d 1181, 1189 (11t h Cir. 1987) (quoting Rollins v. TechSouth, Inc. , 833 F.2d 1525, 1528 n.6 ( 11th Cir. 1987)). If the plaintiff of fers direct evide

nce and the trier of fact accepts that evidence, then t he plaintiff has pro ven discrimination. McCarthney v. Griffen-Spalding County Bd. of Educ. , 791 F.2d 1549, 1553 ( 11th Cir. 1986). Here, Maynard offers no direct evidence of discrim ination to support his claims and, therefore, must rely on circum stantial evidence. 11 To prevail on a cla

im for discrim

ination under Title VII based on circumstantial evidence, Maynard must show that: (1) he is a m ember of a protected class; (

2) he was qualifie

d for the position; (3)

he suffered an adv

erse employment action; and (4) he was replaced by a person outside his protected class or was trea

ted less favorably

than a similar

ly-situated indiv

idual outside his protected class. See McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 (1973). The distr

ict court found that M

aynard only satisfied three of the prongs15

required to establis

h a prima fac

ie case of discrim

ination. The distr

ict court found that Maynard w

as a membe

r of a protected cl

ass; that Maynar

d was qualified to serve as a surgica

l resident; and that M

aynard suffer

ed an adverse em

ployment action . The dis trict c ourt fo und th at Maynar d faile d to est ablish that si milarlysituated individuals were treated more favorably than Maynard in the program. In fact, the district court specifically noted that Maynard brought forth no evidence “absent his deposition” to show that other residents in the surgical residency progra m were trea ted more favorab ly. To satisfy the prima facie requirement, Maynard m

ust show that a nonminority resident in similar circ umstances was retained in t he residency program. See Holifield v. Reno , 115 F.3d 1555, 1561 ( 11th Cir. 1997). “ In determining whether [other r

esidents] are si

milarly si tuated for purposes o f establishing a prima facie case, it is necess ary to consider whether the em

ployees are involved in or accused of the same or similar conduct and are disciplined in different ways.” Jones v. Bessemer Carraway Med. Ctr. , 137 F.3d 1306, 131 1 (11th Cir.), opinion modified by

151 F.3d 1321 (1998). “The mos t important fac

tors in the disciplinary con

text . . . are t

he nature of the off

enses comm

itted and the nature of the punishment imposed.” Silvera v. Orange County Sch. Bd ., 244 F.3d 1253, 1259 (11th Cir. 200 1), cert. denied , 535 U.S. 1013 (2002).16

Maynard points to several compa rators, although the

re is very littl

e evidence in the record with regard to a ny of them.The one who appear s most similarly situated to Maynard will be referred to as A. R. In 1998, A.R. received poor evaluations on patient care similar in tone to Maynard’s negativ e evaluations. A.R.’s problems, however, seem to be limited to a discrete period of time in which he had an alcohol problem and for which he was successfully treated. If he was unreliable or made undue errors, it was during the time period specifically relate d to his alcohol problem

. Despite the pati

ent care problem

s, A.R. was no

t shown to exhibit low ABSITE scores or other academic problems. As discussed, Maynard, in addition to poor evaluations on patient care, was criticized for his

very low ABS ITE exam scores, his lack of r eliability, his irresponsibility, his poor knowledge, his failure to attend conferences, his failure to adhere t o a schedul e, and his fa ilure to tu rn in evalu ations ti mely. Maynard’s problems were not limited to a discrete time period. T hese issues existed before and continued throughout the probationary period. We fin

d that A.R.’s

negative patient care resu

lts over an isolated pe

riod of time ar

e not a basis for com

parison with Maynard’ s overall poor recor d over an extended per

iod of time. R

egardless of whether this analysis requires “similar” misconduct, see, e.g. , Jones v. Gerwens , 874 F.2d 1534, 1540 (11t h Cir. 1989), or th

e seemingly

more stringent

“nearly17

identical” misconduct , see, e.g. , Maniccia v. Brown , 171 F.3d 1364, 1368- 69 (11th Cir. 1998), we find that n either standard is s atisfied here. Accordingly,

we conclude that Ma

ynard did not satis fy the prim a facie requirements for his Title VII discrimination claim. Thus, we do not reach the issue of whether USF’s reasons for the termination were pretextual. The district court did n ot err in gra ntin g defe ndan t summar y judgme nt on the Ti tle VI I clai m. AFFIRMED IN PART, VACATED AND REMANDED IN PART.