Otis Johnson v. Atlanta Independent School System , 137 F. App'x 311 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 04-16131 ELEVENTH CIRCUIT
Non-Argument Calendar June 29, 2005
________________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 03-03011-CV-JEC-1
OTIS JOHNSON,
Plaintiff-Appellant,
versus
ATLANTA INDEPENDENT SCHOOL SYSTEM,
CAROL CLARK WESLEY, et al.
Defendants-Appellees.
__________________________
Appeal from the United States District Court for the
Northern District of Georgia
_________________________
(June 29, 2005)
Before BARKETT, HULL and WILSON, Circuit Judges.
PER CURIAM:
Otis Johnson, a 58-year-old male, proceeding pro se, was a teacher who was
ultimately not renewed because of alleged performance deficiencies by his
employer. He now appeals the district court’s grant of summary judgment to
defendants Atlanta Independent School System (APS), Principal Carol Clark-
Wesley, Deputy Superintendent Gloria Patterson, and Superintendent Beverly Hall
(Defendants) on his claims of sex and age discrimination, raised pursuant to Title
VII of the Civil Rights Act of 1964 (Title VII) and the Age Discrimination in
Employment Act (ADEA), 29 U.S.C. § 621, et seq., and due process violations
pursuant 42 U.S.C. § 1983. Johnson argues that the district court erred in finding
that (1) he did not establish a prima facie case based on evidence that similarly
situated employees outside his protected class were treated more favorably, (2) he
did not establish a prima facie case of retaliation based on evidence that the
decision-makers were aware of his discrimination charge when they decided to
terminate him, nor did he provide evidence that the reasons for his termination,
proffered by the defendants, were pretextual, (3) he did not put forth evidence that
state law did not provide a process sufficient to remedy his deprivation, and (4) his
motion to compel a deposition of a particular witness (Superintendent Hall) was
unnecessary.1
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For the purposes of deciding this appeal, we assume, arguendo, that Johnson’s claims for
discrimination and retaliation were exhausted when he filed a charge with the EEOC on January 31,
2003.
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I. Discrimination
We review “a grant of summary judgment de novo, using the same legal
standard as the district court.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1184
(11th Cir. 1997). Summary judgment is proper if the pleadings, depositions, and
affidavits show that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P.
56(c)). The evidence, and all inferences drawn from the facts, must be viewed in
the light most favorable to the non-moving party. Matsushita Electric Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d
538 (1986). In order to defeat summary judgment, however, the non-moving party
“must do more than simply show that there is some metaphysical doubt as to the
material facts.” Id. at 586, 106 S.Ct. at 1356. The non-moving party must make a
sufficient showing on each essential element of the case for which he has the
burden of proof. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552.
Because Johnson relies on circumstantial evidence, this invokes the burden-
shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), for both his age
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and sex discrimination claims. Chapman v. AI Transport, 229 F.3d 1012, 1024
(11th Cir. 2000). Under the McDonnell Douglas/Burdine framework, the claimant
must first show an inference of discriminatory intent, and thus carries the initial
burden of establishing a prima facie case of discrimination. McDonnell Douglas,
411 U.S. at 802, 93 S.Ct. at 1824; see Holifield v. Reno, 115 F.3d 1555, 1561-62
(11th Cir. 1997). Once the plaintiff establishes a prima facie case, the burden
shifts to the defendant to “articulate some legitimate, nondiscriminatory reason”
for the employment action. McDonnell Douglas, 411 U.S. at 802; 93 S.Ct. at 1824.
If the defendant is able to meet its burden, the plaintiff must then show that the
proffered reason is merely a pretext for discrimination. Burdine, 450 U.S. at 253;
101 S.Ct. 1093.
To succeed with his discriminatory discharge claim, Johnson had to show
that: (1) he was a member of a protected minority; (2) he was qualified for the job
from which he was discharged; (3) he was discharged; and (4) he was treated less
favorably than a similarly situated individual outside his protected class or his
former position was filled by a non-minority. Maynard v. Bd. of Regents, 342 F.3d
1281, 1289 (11th Cir. 2003).
“In determining whether employees are similarly situated for purposes of
establishing a prima facie case, it is necessary to consider whether the employees
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are involved in or accused of the same or similar conduct and are disciplined in
different ways.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). “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 Co.
School Bd., 244 F.3d 1253, 1259 (11th Cir. 2001) (internal citation omitted)). “In
order to satisfy the similar offenses prong, the comparator’s misconduct must be
nearly identical to the plaintiff’s in order to prevent courts from second-guessing
employers’ reasonable decisions and confusing apples with oranges.” Id. at 1259(internal quotation and citations omitted). Summary judgment is appropriate if the
plaintiff fails to show the existence of a similarly situated employee, and no other
evidence of discrimination is present. Holifield, 115 F.3d at 1562.
Upon review of the record and upon consideration of the parties’ briefs, we
find no reversible error. According to the evidence before the district court, no
other teacher, who: (1) was either female or less than 40 years old; (2) had a
similar history of documented performance deficiencies; and (3) was given
opportunities and resources to improve, similar to those received by Johnson, but
did not; and was still retained. Because Johnson failed to establish the existence
of a similarly situated employee, the district court properly granted summary
judgment on his claims of sex and age discrimination.
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II. Retaliation
To prevail on a claim of retaliation under Title VII, a plaintiff must establish
three elements by a preponderance of the evidence: (1) that he engaged in an
activity protected under Title VII, (2) that he suffered an adverse employment
action, and (3) that there was a causal connection between the protected activity
and the adverse employment action. Gupta v. Florida Bd. of Regents, 212 F.3d
571, 587 (11th Cir. 2000). “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 employment action were not wholly unrelated.’”
Id. at 590 (internal citations omitted).
Once a prima facie case is established, the employer has an opportunity to
articulate a legitimate, non-retaliatory reason for the challenged employment
action. Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001).
To show the proffered reason is merely a pretext, the employee must
demonstrate that the proffered reason was not the true reason for the
employment decision . . . [The plaintiff] may succeed in this either
directly by persuading the court that a discriminatory reason more
likely motivated the employer or indirectly showing that the
employer’s proffered explanation is unworthy of credence.
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Jackson v. State of Alabama State Tenure Comm., No. 04-10046, slip op. at 1924
(11th Cir. April 14, 2005) (quotations and citations omitted). Specifically, the
plaintiff must produce sufficient evidence to allow a reasonable finder of fact to
conclude the defendants’ articulated reasons are not believable. Id. at 28-29(quotations and citations omitted). This can be accomplished by pointing to
“weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in
the proffered explanation. Id. at 29 (quotations and citations omitted). “[T]o
avoid summary judgment [the plaintiff] must introduce significantly probative
evidence showing that the asserted reason is merely a pretext for discrimination.”
Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1228 (11th Cir. 1993) (citation
omitted). A reason is not pretext for discrimination “unless it is shown both that
the reason was false, and that discrimination was the real reason.” St. Mary’s
Honor Center v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407(1993) (emphasis in original).
Upon review of the record and upon consideration of the parties’ briefs, we
find no reversible error. It was undisputed that Johnson engaged in an activity
protected under Title VII when he filed a charge of discrimination with the EEOC
in early 2003. It was also undisputed that he suffered an adverse employment
action when the APS refused to renew his employment contract on March 14,
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2003 for the 2003-04 academic year. Thus, the only question under a prima facie
analysis is whether he could establish a causal connection between the two events.
The district court properly granted summary judgment on this claim because he
did not show that the decision-makers were aware of the claim he had filed on
January 31, 2003, as they did not receive it until May 6, 2003. Moreover, even
assuming he established a prima facie case, Johnson was unable to show that
APS’s articulated reason for terminating him - that he had a documented history of
performance deficiencies - was a pretext for retaliation.
III. Due Process
A procedural due process violation occurs when “the State fails to provide
due process.” McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (en banc)
(internal quotations omitted). “Due process entitles an individual to notice and
some form of hearing before state action may finally deprive him or her of a
property interest. Cryder v. Oxendine, 24 F.3d at 175, 177 (11th Cir.
1994)(citation omitted). However, a “state may cure a procedural deprivation by
providing a later procedural remedy.” Id. Where the state has adequate remedies
to cure due process deprivations, that a plaintiff has not taken advantage of, a
plaintiff may not pursue his claim in federal court. Id. at 1563-64 (holding that
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Florida courts provide review and adequate remedies with regard to employment
termination cases).
Upon review of the record and upon consideration of the parties’ briefs, we
find no reversible error. Johnson was offered a hearing and declined attendance
before his termination. Thus, the district court properly granted summary
judgment on this claim
IV. Discovery
Next, Johnson argues that the district court erred in denying his motion to
compel Hall’s deposition. We review a district court’s discovery rulings for abuse
of discretion. See Burger King Corp. v. Weaver, 169 F.3d 1310, 1315 (11th Cir.
1999). To prevail on appeal to a challenge to a district court’s denial of additional
discovery, a party “must show substantial harm to its cause.” Leigh v. Warner
Bros., Inc., 212 F.3d 1210, 1219 (11th Cir. 2000).
Upon review of the record and upon consideration of the parties’ briefs, we
find no reversible error. The district court properly denied Johnson’s motion to
compel because Johnson did not put forth any evidence to show that Hall was
aware of the decision to terminate him or possessed any information concerning
discrimination at Ralph McGill Elementary School. Further, he did not show that
she possessed any evidence that was necessary for him to oppose the defendants’
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motion for summary judgment. Finally, we note that he does not claim, on appeal,
that the inability to depose Hall prevented him from properly responding to APS’s
motion for summary judgment, and even if he did, the record shows he did not
raise such a claim - or follow the procedure set forth in Fed.R.Civ.P. 56(f) - before
the district court in the first instance. Accordingly, the district court’s judgment is
AFFIRMED.
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