Ernest McDuffie, III v. City of Jacksonville, Florida, Etc.

Case: 15-11088 Date Filed: 09/17/2015 Page: 1 of 7

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 15-11088

Non-Argument Calendar

________________________

D.C. Docket No. 3:12-cv-01283-MMH-JRK

ERNEST MCDUFFIE, III,

d.b.a. D&M Contracting Company,

Plaintiff-Appellant,

versus

CITY OF JACKSONVILLE, FLORIDA, ETC.,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Florida

________________________

(September 17, 2015)

Before JORDAN, JILL PRYOR and BLACK, Circuit Judges.

PER CURIAM:

Case: 15-11088 Date Filed: 09/17/2015 Page: 2 of 7

Ernest McDuffie, III, proceeding pro se, appeals the district court’s grant of

summary judgment to the City of Jacksonville (City) on his pro se civil action

brought under 42 U.S.C. § 1983 for violations of the Fourteenth Amendment’s

Equal Protection Clause and Title VI of the Civil Rights Act, 42 U.S.C. § 2000d,

et. seq. (Title VI). McDuffie contends (1) the district court in granting summary

judgment to the City on his claim that the City violated the Equal Protection

Clause by passing an ordinance about the licensing of journeymen, and (2) the

district court erred in granting summary judgment on his claim that the City

violated Title VI by discriminating against him on the basis of race when it did not

approve three funding projects. As the parties are familiar with the facts of the

case, we weave them into the discussion only as necessary. Upon review, we

affirm. 1

1. Section 1983

The district court did not err in granting summary judgment to the City on

McDuffie’s § 1983 claim because McDuffie presented insufficient evidence to

show that Jacksonville Ordinance 2010-680 (the Journeyman Ordinance) was

1

McDuffie’s brief, construed liberally, see Tannenbaum v. United States, 148 F.3d 1262,

1263 (11th Cir. 1998), also asserts the following additional arguments: (1) the City failed to

comply with federal regulations applicable to national banking associations; (2) the City violated

§ 3 of the Small Business Act; (3) the district court abused its discretion by (a) failing to strike

the City’s summary judgment motion because it did not comply with a local rule, (b) granting

summary judgment before he received an opportunity to conduct full discovery, and (c) failing to

conclude the City’s summary judgment motion was filed in bad faith; and (4) the district court

violated the Fourteenth Amendment’s Equal Protection Clause by granting summary judgment to

the City. We reject these arguments without discussion.

2

Case: 15-11088 Date Filed: 09/17/2015 Page: 3 of 7

motivated by intent to discriminate. See Elston v. Talladega Cnty. Bd. of Educ.,

997 F.2d 1394, 1406 (11th Cir. 1993) (“To establish an equal protection clause

violation, a plaintiff must demonstrate that a challenged action was motivated by

an intent to discriminate.”). The ordinance on its face was race-neutral: it merely

struck a requirement that journeymen with expired licenses had to file a renewal

application “within six months” after the license elapsed in order for the

Construction Trades Qualifying Board (CTQB) 2 to waive a required examination:

Failure of the holder of the delinquent certificate of competency to renew

prior to the expiration of the current licensure cycle renders the certificate of

competency invalid. The holder of the invalid certificate of competency

must reapply in the same manner, including examination and all applicable

fees. However, the Board may waive the examination requirements for good

cause shown. if an application is filed within six months after expiration of

the certificate of competency.

See Jacksonville, Fla., Ord. 2010-680 amending Chapter 342 (Construction Trades

Regulations), Section 342.118(c) of the Jacksonville Code of Ordinances.

Moreover, McDuffie presented no evidence from which discriminatory intent

could be inferred. For instance, he did not present evidence the City Council

deviated from its normal procedures when passing the Journeyman Ordinance, nor

did he point to any discriminatory statements in the ordinance’s legislative history.

See Elston, 997 F.2d at 1406 (“Discriminatory intent may be established by

2

The CTQB is an independent board of the City of Jacksonville made up of 18 members

who are appointed by the mayor and confirmed by the City Council. The CTQB licenses,

regulates, and disciplines roughly 9,000 locally licensed construction, electrical, and apartment

maintenance personnel.

3

Case: 15-11088 Date Filed: 09/17/2015 Page: 4 of 7

evidence of . . . procedural and substantive departures from the norms generally

followed by the decision-maker, and discriminatory statements in the legislative or

administrative history of the decision.”). To the contrary, evidence from both

parties established the sole purpose of the Journeyman Ordinance was to allow the

CTQB greater latitude in waiving the examination requirement for journeymen

with expired licenses.

According to McDuffie, however, the Journeyman Ordinance was motivated

by discriminatory intent because (i) the ordinance requires more construction

workers to become journeymen, (ii) African-American workers were historically

unable to become journeymen, and (iii) a previous law that required a minimum

ratio of journeymen on projects stifled the growth of African-American-owned

businesses. McDuffie’s reading of the Journeyman Ordinance is incorrect. The

ordinance did not change the requirements for the use of journeymen on

construction sites. It simply deleted the requirement that an applicant must file an

application “within six months” after expiration of a license in order to have the

exam waived, thereby giving the CTQB greater latitude in waiving the exam

requirement for workers with expired licenses. McDuffie’s unsupported allegation

that the Journeyman Ordinance reinstated a journeyman work ratio, standing alone,

cannot create a genuine issue of fact as to whether the ordinance was motivated by

discriminatory intent. See Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005)

4

Case: 15-11088 Date Filed: 09/17/2015 Page: 5 of 7

(“[U]nsupported factual allegations are legally insufficient to defeat a summary

judgment motion.”). Accordingly, the district court did not err by granting

summary judgment on McDuffie’s § 1983 claim.

2. Title VI

The district court also did not err in granting summary judgment to the City

on McDuffie’s Title VI claim. First, the district court correctly concluded

McDuffie could not bring a disparate impact claim against the City under Title VI

because Title VI does not create a private right of action for such a claim. See

Alexander v. Sandoval, 532 U.S. 275, 293 (2001) (holding there is no private right

of action to enforce disparate-impact regulations promulgated under Title VI); see

also Liese v. Indian River Cnty. Hosp. Dist., 701 F.3d 334, 346 (11th Cir. 2012)

(“[P]rivate individuals may recover compensatory damages under Title VI only in

cases of intentional discrimination.”).

Second, the district court did not err, much less clearly err, in finding the

City was not motivated by discriminatory intent when it declined to award

McDuffie contracts for three proposed rehabilitation projects. See Pullman-

Standard v. Swint, 456 U.S. 273, 290 (1982) (“[A] court of appeals may only

reverse a district court’s finding on discriminatory intent if it concludes that the

finding is clearly erroneous.”); Elston, 997 F.2d at 1405 (reviewing a district

court’s findings as to whether a defendant engaged in intentional discrimination for

5

Case: 15-11088 Date Filed: 09/17/2015 Page: 6 of 7

clear error). The undisputed evidence shows McDuffie lost out on these contracts,

not because of his race, but because his bid proposals did not comply with the

City’s requirement that bids include a complete work write-up. See Department of

Housing and Urban Development Rental Rehabilitation Loan Program Policy &

Procedures Manual (Program Manual) § 9.1 (explaining a “Bid Package” consists

of “a complete work write-up, spec’s, drawings, [etc.]”); Program Manual § 9.6

(“The bid will be reviewed to make sure all items are addressed” and “[i]f the bid

is incorrect, it shall be returned to the owner(s) requesting the additional

information.”). The City gave McDuffie ample opportunity to submit revised

complying bids; however, McDuffie refused to do so because he did not want to

bid against himself. McDuffie points to no evidence suggesting the winning

bidders did not have to comply with the same bid requirements or that he was

otherwise singled out on account of his race. See Love v. DeCarlo Homes, Inc.,

482 F.2d 613, 615 (5th Cir. 1973)3 (“Racial discrimination normally involves

treating, in similar circumstances, a member or members of one race different from

the manner in which members of another race are treated.”). The district court

therefore did not err in granting summary judgment to the City on McDuffie’s Title

VI claim.

3

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this

Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior

to the close of business on September 30, 1981.

6

Case: 15-11088 Date Filed: 09/17/2015 Page: 7 of 7

For the foregoing reasons, we AFFIRM the district court’s order granting

summary judgment to the City.

7