[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-14870
Non-Argument Calendar
____________________
MINNIE MCCALL,
Plaintiff-Appellant,
versus
MONTGOMERY HOUSING AUTHORITY,
a public corporation,
EVETTE HESTER,
Defendants-Appellees.
2 Opinion of the Court 19-14870
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:14-cv-01113-ECM-SMD
____________________
Before NEWSOM, LUCK, and ANDERSON, Circuit Judges.
PER CURIAM:
Minnie McCall appeals the denial of her motion for discov-
ery sanctions and the summary judgment for the defendants on her
Fair Housing Act claims. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
McCall participated in the Montgomery Housing Author-
ity’s section 8 program. The program allowed participants to
choose an apartment and then assisted them with rent payments.
In 2009, McCall and eight other co-plaintiffs sued the Montgomery
Housing Authority for violating their due process rights, eventu-
ally settling. In August 2012—still in the section 8 program—
McCall moved into the independently owned Bristol Downs apart-
ment complex.
Federal regulations governing section 8 programs mandate
that all housing comply with minimum safety requirements and
therefore require public housing agencies—like the Housing Au-
thority—to inspect apartments before move-in. See 24 C.F.R.
19-14870 Opinion of the Court 3
§§ 982.401, 982.405(a). The Housing Authority contracted with an
independent third-party company to perform the inspections.
When McCall moved in, her apartment had a backflowing
septic system and an insect infestation. She wrote a letter to the
Housing Authority requesting that her unit be reinspected because
of the problems. Two days later, the Housing Authority asked the
third-party company to perform another inspection. A few days
after that, the company reinspected McCall’s apartment without
giving her notice. It did so because McCall’s complaints about
standing water and insect infestation constituted an emergency for
which notice wasn’t required. McCall orally discussed “porting
out”—moving to another apartment—with Housing Authority
staff, but ultimately never submitted the required written request.
More than a year later, the third-party company reinspected
the apartment and found that it didn’t meet the required safety
standards because of “a variety of issues that were the responsibility
of the tenant.” McCall testified that the inspector was verbally abu-
sive and spoke with “racial undertones.” For example, McCall said
that the inspector falsely found that the stove was greasy because
“she seem[ed] to think the only thin[g] that [McCall] d[id] [wa]s fry
chicken and eat collard greens.” The inspector also “nodded in
agreement” when a Bristol Downs maintenance worker said that a
nearby tenant was “[a] young black guy. Won’t work. Just tearing
up the place.”
After the failed inspection, the Housing Authority tried to
meet with McCall three times, each time advising that if she failed
4 Opinion of the Court 19-14870
to attend the meeting, it might terminate her housing choice
voucher. Even though McCall did not attend any of the meetings,
her voucher was not terminated and her apartment eventually
passed reinspection. McCall moved out of Bristol Downs two
years later.
McCall sued the Housing Authority and its executive direc-
tor for racial discrimination and retaliation under the Fair Housing
Act. 1 She alleged that her mistreatment stemmed from her partic-
ipation in the 2009 lawsuit against the Housing Authority, and that
the Housing Authority had retaliated by inspecting her apartment
in a discriminatory manner, entered her apartment without notice,
and that the executive director had failed to intervene in these vio-
lations. She also said that she was prevented from filing an internal
complaint and “port[ing] out” into safe housing.
After eight months of discovery, during which McCall never
moved to compel production of documents, the Housing Author-
ity and its executive director moved for summary judgment. They
argued that there was no evidence that McCall was mistreated be-
cause of her race. And, they continued, she hadn’t produced any
evidence of a comparator who was treated better than she was. As
to her retaliation claim, they argued that McCall could not establish
1
McCall also sued other defendants for negligence and civil conspiracy and for
violating the Americans with Disabilities Act and her procedural due process
rights, but the claims against the other defendants were dismissed from the
case and McCall doesn’t appeal the dismissal.
19-14870 Opinion of the Court 5
a prima facie case because there was no evidence that the relevant
decisionmaker—the executive director—was ever aware of
McCall’s complaints about her housing.
In response, McCall asked the court to deny the motion—
and separately moved for sanctions—because the defendants had
not complied with her requests for documents from her tenant file.
McCall said that her tenant file was missing “perhaps well over one
hundred documents” it was required to have by law. The defend-
ants replied with an affidavit that they did not have any other doc-
uments in her tenant file.
The magistrate judge denied the motion for sanctions be-
cause McCall neither moved to compel nor identified the docu-
ments she sought and she didn‘t describe how the documents
would have helped her case. The magistrate judge also recom-
mended that the motion for summary judgment be granted as to
the disparate treatment claim because McCall hadn’t submitted
any evidence that the treatment she experienced was motivated by
race and because she hadn’t identified a comparator who was
treated more favorably than she was. Finally, the magistrate judge
recommended granting the motion as to McCall’s retaliation claim
because McCall hadn’t suffered an adverse action.
McCall objected to the magistrate judge’s recommendation
and renewed her arguments that the defendants were concealing
crucial documents in her tenant file. She also moved for a hearing
on her sanctions motion. The district court agreed with the
6 Opinion of the Court 19-14870
magistrate judge, overruled McCall’s objections, and entered sum-
mary judgment for the Housing Authority and its executive direc-
tor.
STANDARD OF REVIEW
We review de novo the district court’s summary judgment,
viewing the evidence and all factual inferences in the light most fa-
vorable to the nonmoving party. Mize v. Jefferson City Bd. of
Educ.,
93 F.3d 739, 742 (11th Cir. 1996). We review the district
court’s discovery rulings for an abuse of discretion. Harrison v.
Culliver,
746 F.3d 1288, 1297 (11th Cir. 2014). We will not overturn
a discovery ruling unless it resulted in “substantial harm to the ap-
pellant’s case.”
Id.
DISCUSSION
McCall makes two arguments on appeal. First, she contends
that the district court erred in denying her motion for sanctions and
for doing so without a hearing. Second, she argues that the district
court erred in granting summary judgment for the Housing Au-
thority. We disagree.
First, the district court correctly overruled McCall’s objec-
tions to the magistrate judge’s denial of McCall’s motion for sanc-
tions. The federal rules of civil procedure allow a litigant to move
to compel discovery. Fed. R. Civ. P. 37(a)(3)(A) (“If a party fails to
make a disclosure required by Rule 26(a), any other party may
move to compel disclosure and for appropriate sanctions.”). If the
district court grants a motion to compel and orders a litigant to
19-14870 Opinion of the Court 7
comply, and he refuses, then the district court may enter sanctions
for violating a court order.
Id. R. 37(b) (“If a party . . . fails to obey
an order to provide or permit discovery . . . the court where the
action is pending may issue further just orders.”). Other than initial
disclosures—which are required without a request from the oppos-
ing party, see
id. R. 26(a)(1)—“[w]e consistently have found [r]ule
37 sanctions . . . to be appropriate, however, only ‘where the party’s
conduct amounts to flagrant disregard . . . of discovery orders.’”
United States v. Certain Real Property Located at Route 1, Bryant,
Ala.,
126 F.3d 1314, 1317 (11th Cir. 1997) (quoting Buchanan v.
Bowman,
820 F.2d 359, 361 (11th Cir. 1987)).
Here, McCall never moved to compel the Housing Author-
ity to turn over the documents from her tenant file, so the district
court never entered—and thus the defendants never violated—an
order requiring the defendants to provide the requested docu-
ments. And nothing in rule 37 entitles a litigant to an oral hearing.
See Fed. R. Civ. P. 37. The district court therefore did not abuse
its discretion in overruling McCall’s objections.
Second, the district court properly entered summary judg-
ment for the Housing Authority and its executive director on
McCall’s Fair Housing Act discrimination and retaliation claims.
A disparate treatment claim requires a plaintiff to show that she
“has been treated differently,” Schwarz v. City of Treasure Island,
544 F.3d 1201, 1216 (11th Cir. 2008), “on the basis of race [in a man-
ner] that affects the availability of housing,” Jackson v. Okaloosa
County,
21 F.3d 1531, 1542 (11th Cir. 1994). Disparate treatment
8 Opinion of the Court 19-14870
may be shown through either direct evidence or circumstantial ev-
idence that satisfies the McDonnell Douglas burden shifting test.
See Hill v. Metro. Atlanta Rapid Transit Auth.,
841 F.2d 1533, 1539
(11th Cir. 1988); McDonnell Douglas v. Green,
411 U.S. 792 (1973).
And for a retaliation claim, a plaintiff must submit evidence that (1)
she engaged in a protected activity, (2) the defendant committed
an adverse act against her, and (3) there is a causal link between the
protected activity and the adverse action. Dixon v. Hallmark Cos.,
Inc.,
627 F.3d 849, 858 (11th Cir. 2010). Finally, the Fair Housing
Act supports vicarious liability, making the Housing Authority re-
sponsible for the acts of its agents or employees. Meyer v. Holley,
537 U.S. 280, 285 (2003). The Supreme Court has explained that an
employer is liable for the acts of agents if the employer has the abil-
ity to control the agent and if the agent is acting within the scope
of his or her authority.
Id. at 288.
McCall’s disparate treatment claim fails because she did not
submit any evidence to show that the defendants did anything that
would have violated the Fair Housing Act. See Hallmark Devs.,
Inc. v. Fulton County,
466 F.3d 1277, 1284 (11th Cir. 2006) (“In or-
der to prevail on a claim under the [Fair Housing Act], a plaintiff
must demonstrate ‘unequal treatment on the basis of race that af-
fects the availability of housing.”). McCall’s only evidence is the
third-party inspector’s comment that her stove was greasy and the
derogatory comments by the maintenance worker. But she does
not explain how these comments by a third-party inspector and a
maintenance worker of a private apartment complex constitute
19-14870 Opinion of the Court 9
discrimination on the basis of race by the Housing Authority and
its executive director. The summary judgment evidence shows
that the Housing Authority merely contracted with a third-party
company and it had no control over which inspectors that com-
pany used or what they said. The maintenance worker was em-
ployed by the independently owned apartment complex. The in-
spector and maintenance worker were not the agents of, and their
comments are not attributable to, the Housing Authority. See
Meyer,
537 U.S. at 288.
As to McCall’s retaliation claim, the district court correctly
entered summary judgment because McCall did not identify any
adverse action taken against her by the Housing Authority or its
executive director. See Dixon,
627 F.3d at 858. While the Housing
Authority threatened to remove her from the program if she did
not attend the meetings to discuss improving the cleanliness of her
apartment, it never did anything. While McCall claims that she
was prevented from “porting out,” she concedes that she never
submitted the mandatory written request to do so. Without an
adverse action by the Housing Authority, her retaliation claim fails
too.
AFFIRMED.
