Andrew P. Moore, II v. Gregory Miller

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14202
Non-Argument Calendar
________________________
D.C. Docket No. 3:09-cv-00298-MMH-PDB
ANDREW P. MOORE, II,
Plaintiff-Appellant,
NATHAN SMALLS JR., et al.,
Plaintiffs,
versus
SHANDS HEALTHCARE, INC.,
corporate capacity, et al.,
Defendants,
GREGORY MILLER,
individually,
LESLI WARD,
individually,
DAN STAIFER,
individually,
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SHANDS JACKSONVILLE MEDICAL
CENTER, INC.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(June 4, 2015)
Before WILLIAM PRYOR, JORDAN and JILL PRYOR, Circuit Judges.
PER CURIAM:
Andrew Moore, a former security guard at Shands Jacksonville Medical
Center, appeals pro se the summary judgment in favor of Shands and three of its
managers, Gregory Miller, Lesli Ward, and Dan Staifer (collectively “Shands”).
Moore complained about discrimination and retaliation based on his race, in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq., and
of his right to full and equal benefit of all laws, id. § 1981; and a hostile work
environment because of racial discrimination and retaliation, id. Moore challenges
the summary judgment against his claims; an order that suspended case deadlines
pending adjudication of cross motions for summary judgment filed by the parties;
and the denial of his motions for relief from the judgment and for recusal of the
district court judge. We affirm.
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This appeal is governed by two standards of review. We review de novo a
summary judgment. Owen v. I.C. System, Inc., 629 F.3d 1263, 1270 (11th Cir.
2011). We review for an abuse of discretion the order that suspended case
deadlines and the denial of Moore’s motions for relief from the judgment and for
recusal. See Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234, 1243 (11th
Cir. 2001) (scheduling order); Am. Bankers Ins. Co. of Fla. v. Nw. Nat’l Ins. Co.,
198 F.3d 1332, 1338 (11th Cir. 1999) (motion for relief); United States v. Scrushy,
721 F.3d 1288, 1303 (11th Cir. 2013) (recusal).
Shands argues that Moore abandoned any challenge that he could have made
to the summary judgment against his claims of discrimination, retaliation, and a
hostile work environment, but we disagree. “[P]ro se pleadings are held to a less
strict standard than pleadings filed by lawyers and thus are construed liberally.”
Alba v. Montford, 517 F.3d 1249, 1252 (11th Cir. 2008). Although Moore’s
argument is conclusory, it is sufficient to preserve his general contentions that the
district court erred by entering summary judgment for Shands and against Moore.
Moore contends that disputed issues of fact preclude summary judgment in favor
of Shands, but Moore fails to identify what facts are in dispute or how they are
material.
The district court did not err by entering summary judgment in favor of
Shands and against Moore’s claims of racial discrimination and retaliation. Moore
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failed to establish a prima facie case of discrimination based on his termination for
an incident in the close supervision unit because he could not identify a comparator
who was similarly situated to him in all relevant aspects. See Holifield v. Reno, 115
F.3d 1555, 1562 (11th Cir. 1997). Moore alleged that he was disciplined more
harshly than two non-black security guards who were also involved in the incident,
but a video recording of the event and witnesses’ accounts established that Moore
was the only guard who agitated a patient and quarreled with a nurse. Moore also
failed to present any evidence to establish that any of the alleged acts of retaliation
constituted adverse employment actions or that the reasons proffered for the acts
were pretextual. See Crawford v. Carroll, 529 F.3d 961, 970–74 (11th Cir. 2008).
Moore presented no evidence that the conditions of his employment were
adversely altered when he received a performance appraisal in February 2008 or a
revised appraisal in May 2008 that did not affect his compensation; when he was
scolded for interrupting a security briefing and an administrative hearing; or when
he worked a one-day shift as a dispatcher during training mandated for security
guards. See id. at 970. And Shands’ actions were not a pretext for retaliation:
undisputed evidence established that Shands gave Moore a poor performance
appraisal in October 2009, suspended him twice in June 2009, and eventually
terminated him because of his insubordination and repeated maltreatment of co-
employees and patients and that Shands refused to promote Moore to two positions
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because they were cancelled due to inadequate funding and to a third position
because he lacked required work experience. See id. at 974.
The district court also did not err in granting summary judgment to Shands
when Moore failed to establish a prima facie case of a hostile work environment
based on racial discrimination or retaliation. Moore’s alleged harassment was not
sufficiently severe or frequent enough to create a racially hostile work
environment. See McCann v. Tillman, 526 F.3d 1370, 1378–79 (11th Cir. 2008).
Moore overheard two racially disparaging remarks that were made by visitors to
the hospital; he witnessed a third incident during which a security officer made
some inappropriate jokes during a meeting; and he was told about three derogatory
remarks made over a three-year period by different security guards. See Faragher
v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 2283 (1998). The
retaliatory conduct cited by Moore was not severe, nor did he establish that the
conduct interfered with his job performance. See Gowski v. Peake, 682 F.3d 1299,
1312 (11th Cir. 2012). As the district court concluded, “[r]eceiving satisfactory job
performance appraisals, being ‘forced’ to attend meetings or participate in a de-
escalation course, hearing criticism about his resume, being denied the opportunity
to inspect Shands’ affirmative action plans, and having to get medical clearance
after leaving work due to an injury, do not even suggest a workplace permeated
with retaliatory ‘intimidation, ridicule, and insult.’”
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The district court also did not abuse its discretion when it suspended the
deadlines set in the case management and scheduling order and denied Moore’s
postjudgment motions to vacate and to recuse. The district court had “discretion
and authority to ensure that [its] cases move[d] to a reasonably timely and orderly
conclusion,” Chrysler Int’l Corp. v. Chemaly, 280 F.3d 1358, 1360 (11th Cir.
2002), and it logically decided to suspend filing deadlines until it disposed of the
parties’ dispositive motions for summary judgment. Moore argues that the district
court lacked authority to deny his motion to vacate before considering his motion
to recuse when those motions were filed contemporaneously, but Moore fails to
cite any authority holding that a district court must give priority to a motion to
recuse. And a recusal was unwarranted. Moore moved for a recusal based on his
dissatisfaction with the rulings of the district court, but adverse rulings provide
grounds for an appeal, not a recusal. See Loranger v. Stierheim, 10 F.3d 776, 780
(11th Cir. 1994) (citing Berger v. United States, 255 U.S. 22, 31, 41 S. Ct. 230,
232 (1921)); McWhorter v. City of Birmingham, 906 F.2d 674, 678 (11th Cir.
1990).
We AFFIRM the summary judgment in favor of Shands.
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