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 No. 00-01575 CV-T-17B

DONALD MAYNARD,

Plaintiff-Appellant,

versus

BOARD OF REGENTS OF

THE DIVISION OF

UNIVERSITIES OF THE

FLORIDA DEPARTMENT OF

EDUCATION, acting by and

through the University of South

Florida,

Defendant-Appellee.

________________________________

Appeal from the United States District Court

for the Middle District 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 Judges, and RESTANI*

, Judge.

RESTANI, Judge:

This is an appeal of a final judgment of the United States District Court for

the Middle District of Florida, Tampa Division, entered on Defendant-Appellee

University of South Florida’s (“USF”) Motion for Summary Judgment. PlaintiffAppellant Donald Maynard asserted certain violations of the United States and

Florida Constitutions, as well as various statutory claims and a breach of contract

claim, all arising out of his dismissal from a USF medical residency program. As

did the district court, we find USF immune from suit on all but the federal 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 graduate of Meharry Medical College in Tennessee. 

After completing medical school, Maynard joined USF’s surgical residency

program, which typically lasts five years. Through this program, USF supplies

residents to local hospitals for varying rotation periods and, in return, the hospitals
1

 As part of the residency program, the faculty is required to evaluate residents in the

program at least twice a year to assess residents’ knowledge, skills, professional attitudes, oral

and ethical development, and professional demeanor, among other things.

2

 At this time, Maynard allegedly asked Dr. Karl to identify any other problems with

Maynard’s performance, and Dr. Karl did not notify him of any other problems. 

3

pay USF a fee. To receive some compensation for their services, residents enter

into annual agreements with USF known as “House Officer Contracts,” through

which the residents receive a stipend. These contracts are limited to one year and

are typically renewed so long as the resident receives acceptable reviews.1

On April 9, 1999, Dr. Richard Karl, Chairman of the Department 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, Dr. Karl gave Maynard written notice that he would be required to

repeat his fourth year of residency. According to Maynard, at no time did Dr. Karl

provide Maynard with any additional reasons for the decision.

Shortly thereafter, Maynard met with Dr. Peter Fabri, Associate Dean and

Accreditation Council for Graduate Medical Education, to discuss appealing Dr.

Karl’s decision to have him repeat his fourth year. Maynard alleges that Dr. Fabri

explained that his problems were related to how others perceived Maynard’s
3

 Maynard was born in the Netherland Antilles.

4

 The Manual explains the process through which a resident may appeal a decision

related to the residency program. The resident 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 Chair, a faculty member selected by the appellant, and a faculty

member outside the Department, selected by the other two.

4

culture, his accent, 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 an explanation as to why he was required to repeat his fourth year of

residency. Maynard claims he did not receive a satisfactory response. On June

23, 1999, Maynard formally appealed the decision by filing a letter 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, Maynard contacted Ted Williams, USF’s race relations

manager, to explain that he believed USF’s actions were motivated by Maynard’s

race. 

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

ultimately reached a compromise under which Maynard would contract as a

fourth-year surgical resident while performing fifth-year work. Under this

agreement, Maynard’s work would be reviewed after six months and, if his
5

 Maynard’s ABSITE scores ranked as follows: in 1996, Maynard ranked in the 2nd

percentile (nationally); in 1997, Maynard ranked in the 36th percentile; in 1998, Maynard ranked

in the 7th percentile; in 1999, Maynard ranked in the 5th percentile; and in 2000 – the year in

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

6

 In the interim, Maynard filed a complaint with the EEOC on which he received a

“Notice of Right to Sue” letter in May 2000. Some two years later, Maynard completed a

residency program elsewhere.

5

performance was acceptable, USF would promote him to fifth year status, effective

January 2000, so that he could complete the program in June 2000 as originally

scheduled. Maynard signed the amended fourth-year contract and dropped 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, Maynard received a letter identifying specific

problem areas: failure to attend conferences, changing schedules without

permission, untimely evaluations, and low ABSITE scores.5

 On December 20,

1999, Dr. Karl informed Maynard that he was not eligible to be promoted to the

fifth year or to graduate in June 2000. Maynard immediately filed a second letter

of dispute and, on January 3, 2000, Dr. Fabri informed Maynard that a PDRC

would be formed to consider his appeal. On March 27, 2000, the PDRC upheld

Dr. Karl’s decision not to promote Maynard.6

 During the deliberations, the

committee members independently mentioned their perceptions as to Maynard’s

unreliability, irresponsibility, poor judgment, failure to improve, and lack of
6

knowledge. Dr. Karl formally notified Maynard that he was terminated from the

program on April 17, 2000. 

On July 31, 2000, Maynard filed a nine-count complaint in the district court

against USF, asserting various claims 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 discovery cut-off date of December 31, 2001, and setting the

dispositive motion deadline for January 31, 2002. On September 7, 2001, the

district court entered an order extending 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-open nine depositions, which was opposed by USF. The

district court entered an order allowing four additional depositions and refused to

re-open depositions. Maynard moved for leave to amend 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. The district court

denied Maynard’s amended motion both because it was untimely and because
7

Maynard’s counsel represented to the district court that the issues contained within

the amended motion and initial motion had been resolved by the parties. USF

filed its Motion for Summary Judgment on March 18, 2002. Maynard filed his

opposition to summary judgment on April 4, 2002. Maynard served a notice of

taking a Rule 30(b)(6) Deposition Duces Tecum on September 6, 2002. On

September 10, 2002, the district court granted USF’s Motion for Summary

Judgment. Appellant timely appealed the final judgment of the district court and

we have jurisdiction under 28 U.S.C. § 1291.

DISCUSSION

I. Preliminary Matters

Maynard initially argues that the district court erred in its discovery rulings

and with regard to scheduling. We review the district court’s rulings on discovery

issues for abuse of discretion. 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 file any objections with the district court judge

assigned to the case. He did not object at all. Because he failed to timely

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. West, 320 F.3d
8

1235, 1249 n.21 (11th Cir. 2003) (“A party failing to appeal a magistrate judge’s

order in a nondispositive matter to the district court may not raise an objection to it

on appeal to a circuit court.”) (citing Stemler v. City of Florence, 126 F.3d 856,

866 n. 9 (6th Cir. 1997) (failure to challenge magistrate judge’s discovery order to

district court constitutes waiver of claim on appeal)). Accordingly, we do not

reach these issues. 

Maynard next argues that the district court erred by ruling upon USF’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 summary

judgment motion had been pending for some time, and Maynard had already

responded five months before the request. We note that Maynard did not ask the

court to stay its summary judgment decision or alert the court to any additional

discovery requests that might be forthcoming, because he was dissatisfied with a

matter that previously was represented to the Magistrate Judge as resolved. As

such, we find that the district court properly proceeded to decide the summary

judgment motion before it.

Maynard also appeals the denial of his motion to amend the complaint to

(1) assert a retaliation claim under Title VII of the Civil Rights Act of 1964, 42
9

U.S.C. § 2000e-2; and (2) add Dr. Karl as a defendant. We review the district

court’s refusal to allow the proposed amendments for abuse of discretion. Sosa v.

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

amend shall be freely given when justice so requires,’ a motion to amend may be

denied on ‘numerous grounds’ such as ‘undue delay, undue prejudice to the

defendants, and futility of the amendment.’” Brewer-Giorgio v. Producers Video,

Inc., 216 F.3d 1281, 1284 (11th Cir. 2000) (quoting 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, delayed disposition of the case, and likely prejudiced USF. In addition,

there seems to be no good reason why Maynard could not have made the motion

earlier. The absence of a Title VII retaliation claim in the original complaint is not

explained and the involvement of Dr. Karl was known early on. Because we

conclude that Maynard has failed to show good cause for the eleventh hour

amendment, we find that the district court did not abuse its discretion by enforcing

its timetable for disposition of the case.

II. Eleventh Amendment Immunity

The district court granted summary judgment to USF on all of Maynard’s

common law, statutory, and state and federal constitutional claims, except those
7

 Apparently, the employment discrimination claim was actually 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 Amendment reads as follows: 

The Judicial power of the United States shall not be construed to extend to any suit

in law or equity, commenced or prosecuted against one of the United States by

Citizens of another State or by Citizens or Subjects of any Foreign State. 

U.S. Const. amend. XI.

10

based on Title VII,7

 finding USF, by virtue of its affiliation with the State of

Florida, entirely immune from suit under the Eleventh Amendment to the U.S.

Constitution.8

 U.S. Const. amend. XI. Maynard appeals only the granting of

summary judgment on his breach of contract claim based on immunity, asserting

that the State of Florida has waived immunity for such claims. We review the

district court’s order granting summary judgment based on Eleventh Amendment

immunity de novo. Hundertmark v. State of Florida Dept. of Transp., 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 Tobacco Corp. v. Dep’t of

Corr., 471 So.2d 4, 5 (Fla. 1984) (“[W]here the state has entered into a contract

fairly authorized by the powers granted by general law, the defense of sovereign

immunity will not protect the state from action arising from the state’s breach of

that contract.”). The issue before us is whether Florida has waived its Eleventh
9

 Maynard has also filed suit in state court on the breach of contract claim.

11

Amendment immunity from suit in federal court for breach of contract.9

 

It is well established that, absent an express waiver by the state, the

Eleventh Amendment bars state law claims against a state in federal court. See,

e.g., Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98-99, 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 with all the

powers of a body corporate for all the purposes created by, or that may

exist under, the provisions of this chapter or laws amendatory hereof and

shall . . . have power . . . to contract and be contracted with, to sue and

be sued, and to plead and be impleaded in all courts of law and equity.

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 Postsecondary Edu. Expense Bd., 527 U.S.

666 (1999). In that case, the Supreme Court failed to find the requisite waiver in

the face of Congress’s attempt to impose Lanham Act remedies on state entities. 

The Court held that the state must make a clear, unequivocal declaration that it

intends to submit itself to federal court jurisdiction. Id. at 676, 119 S. Ct. at 226. 

“A State does not consent to suit in federal court merely by consenting to suit in

the courts of its own creation.” Id. (citation omitted). Moreover, a state also does
10

 See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 67, 116 S. Ct. 1114, 1129, 134

L. Ed. 2d 252 (1996) (finding that a state’s Eleventh Amendment immunity applies to suit by its

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

12

not “consent to suit in federal court merely by stating its intention to ‘sue and be

sued.’” Id.

There is, however, a slight difference between the language at issue in

College Savings Bank and in the case at hand. There, the crucial consent was “to

sue and be sued in any court of competent jurisdiction,” while here, the statute

reads “to sue and be sued in all courts of law and equity.” Nevertheless, we can

find no meaningful distinction between “any court” and “all courts.” Given the

Supreme Court’s emphasis on the breadth10 and force of Eleventh Amendment

immunity, we do not find the necessary express consent to suit in federal court in

this waiver’s language. 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 stated ‘by the most express language or by such overwhelming

implications from the text as [will] leave no room for any other reasonable

construction.’”); Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S. Ct.

3142, 3146, 87 L. Ed. 2d 171 (1985) (“Although a State’s general waiver of
13

sovereign immunity may subject it to suit in state court, it is not enough to waive

the immunity guaranteed by the Eleventh Amendment.”) (citation omitted). 

Accordingly, we find Maynard’s breach of contract claim barred on Eleventh

Amendment immunity grounds and remand for dismissal for lack of jurisdiction.

III. Title VII Discrimination Claim

Maynard next argues that the district court erred in finding that he failed to

establish a prima facie discrimination case under Title VII. We review the district

court’s grant of summary judgment de novo. Watson v. Blue Circle, Inc., 324

F.3d 1252, 1256 (11th Cir. 2003). Title VII makes it unlawful for an employer “to

fail or refuse to hire or 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 individual’s race, color, religion, sex,

or national origin . . . .” 42 U.S.C. § 2000e-2(a)(1). Under Title VII, Maynard is

not required to prove directly that race or gender was the reason for the employer’s

challenged decision. Rather, in showing that the employer discriminated against

him, Maynard may rely on direct or circumstantial evidence of discrimination. 

See, e.g., St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 526 (1993) (“Because

Title VII tolerates no racial discrimination, subtle or otherwise, we devised a

framework that would allow both plaintiffs and the courts to deal effectively with
11 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] existence of

[the] fact in issue without inference or presumption.” Merritt v. Dillard Paper Co.,

120 F.3d 1181, 1189 (11th Cir. 1987) (quoting Rollins v. TechSouth, Inc., 833

F.2d 1525, 1528 n.6 (11th Cir. 1987)). If the plaintiff offers direct evidence and

the trier of fact accepts that evidence, then the plaintiff has proven discrimination. 

McCarthney v. Griffen-Spalding County Bd. of Educ., 791 F.2d 1549, 1553 (11th

Cir. 1986). Here, Maynard offers no direct evidence of discrimination to support

his claims and, therefore, must rely on circumstantial evidence.11

 

To prevail on a claim for discrimination under Title VII based on

circumstantial evidence, Maynard must show that: (1) he is a member of a

protected class; (2) he was qualified for the position; (3) he suffered an adverse

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

class or was treated less favorably than a similarly-situated individual outside his

protected class. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973). The district court found that Maynard only satisfied three of the prongs
15

required to establish a prima facie case of discrimination. The district court found

that Maynard was a member of a protected class; that Maynard was qualified to

serve as a surgical resident; and that Maynard suffered an adverse employment

action. The district court found that Maynard failed to establish that similarlysituated 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

program were treated more favorably.

To satisfy the prima facie requirement, Maynard must show that a nonminority resident in similar circumstances was retained in the residency program. 

See Holifield v. Reno, 115 F.3d 1555, 1561 (11th Cir. 1997). “In determining

whether [other residents] are similarly situated for purposes of establishing a

prima facie case, it is necessary to consider whether the employees 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, 1311 (11th Cir.), opinion

modified by 151 F.3d 1321 (1998). “The most important factors in the

disciplinary context . . . are the nature of the offenses committed and the nature of

the punishment imposed.” Silvera v. Orange County Sch. Bd., 244 F.3d 1253,

1259 (11th Cir. 2001), cert. denied, 535 U.S. 1013 (2002).
16

Maynard points to several comparators, although there is very little

evidence in the record with regard to any of them. The one who appears 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 negative 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 related

to his alcohol problem. Despite the patient care problems, A.R. was not 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 ABSITE exam scores, his lack of reliability, his

irresponsibility, his poor knowledge, his failure to attend conferences, his failure

to adhere to a schedule, and his failure to turn in evaluations timely. Maynard’s

problems were not limited to a discrete time period. These issues existed before

and continued throughout the probationary period. We find that A.R.’s negative

patient care results over an isolated period of time are not a basis for comparison

with Maynard’s overall poor record over an extended period of time. Regardless

of whether this analysis requires “similar” misconduct, see, e.g., Jones v. Gerwens,

874 F.2d 1534, 1540 (11th Cir. 1989), or the seemingly more stringent “nearly
17

identical” misconduct, see, e.g., Maniccia v. Brown, 171 F.3d 1364, 1368-69 (11th

Cir. 1998), we find that neither standard is satisfied here. 

Accordingly, we conclude that Maynard did not satisfy the prima 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 not err in granting defendant summary judgment on the Title VII claim.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.