The opinion
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-10819 FEBRUARY 28, 2012
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 6:09-cv-00750-GAP-GJK
PRINCE D. BROWN,
Plaintiff - Appellant,
versus
SCHOOL BOARD OF ORANGE COUNTY, FLORIDA,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 28, 2012)
Before DUBINA, Chief Judge, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Appellant Prince Brown, an African-American, appeals the district court’s
grant of defendant Orange County School Board’s (“OCSB”) motion for summary
judgment as to his complaint alleging racial discrimination, brought under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (“Title VII”), and 42
U.S.C. §§ 1981 and 1983, and retaliation in violation of his First Amendment free
speech rights, brought under 42 U.S.C. § 1983. Brown complained of adverse
employment actions when OCSB, his former employer, suspended him twice
without pay and then failed to renew his employment contract.1 On appeal, Brown
argues that: (1) the district court erred in finding that he failed to establish a prima
facie case of racial discrimination because he could not identify a similarly
situated employee; (2) the district court erred in determining that his right to free
speech was not violated because, when he complained to OCSB’s Employee
Relations Department about OCSB’s hazardous material practices, he was not
speaking as a citizen on a matter of public concern. Each of these issues is
addressed separately below.
1
While Brown also complained initially that his white co-workers received better
treatment, in that they were given offices and access to county vehicles, because he does not raise
these claims on appeal, he has abandoned them. See Greenberg v. BellSouth Telecomms., Inc.,
498 F.3d 1258, 1259 n.1 (11th Cir. 2007) (per curiam) (holding that, because the plaintiff did not
object to the district court’s disposition of his Rehabilitation Act claim on appeal, the claim had
been abandoned).
2
We review a district court’s grant of summary judgment de novo. Weeks v.
Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). Summary judgment is
proper if the evidence shows “that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The movant bears the burden of establishing the absence of a dispute over a
material fact. Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465, 469 (11th
Cir. 1993). The evidence and factual inferences from the evidence are construed
favorably to the party opposing summary judgment. Id.
I. Racial Discrimination Claims
Brown argues that summary judgment was inappropriate as to his
discrimination claims under Title VII and §§ 1981 and 1983 because there was an
issue of material fact as to whether two of his fellow employees were valid
comparators, as they had the same job title, and all three were involved with
misconduct regarding the handling of hazardous materials at OCSB facilities.
Title VII makes it illegal for an employer “to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1).
Under 42 U.S.C. § 1981, all citizens shall have the same right to “make and
enforce contracts” without the impediment of racial discrimination. Claims
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against state actors under § 1981 must be brought pursuant to 42 U.S.C. § 1983.
Butts v. Cnty. of Volusia, 222 F.3d 891, 892 (11th Cir. 2000). Title VII and
§ 1981 have the same requirements of proof and utilize the same analytical
framework. Brown v. Amer. Honda Motor Co., 939 F.2d 946, 949 (11th Cir.
1991).
Under Title VII, a plaintiff bears “the ultimate burden of proving
discriminatory treatment by a preponderance of the evidence.” Crawford v.
Carroll, 529 F.3d 961, 975 (11th Cir. 2008) (internal quotation marks and citation
omitted). A plaintiff may establish a claim of illegal disparate treatment through
either direct or circumstantial evidence. Id. at 975-76. Where, as here, a party
seeks to establish discrimination through circumstantial evidence, we evaluate the
claim under the framework set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S. Ct. 1817 (1973). See id. Under this framework, the plaintiff bears
the threshold burden of establishing a prima facie case of discrimination. Wilson
v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004). The elements of a
prima facie case and the manner of establishing those elements are not fixed, but
will vary depending on the situation. Id. In general, a plaintiff establishes a prima
facie case of race discrimination by showing that: (1) he is a member of a racial
minority; (2) he suffered an adverse employment action; (3) the employer treated
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similarly situated employees outside his racial minority more favorably; and (4) he
was qualified for his employment. Holifield v. Reno, 115 F.3d 1555, 1562 (11th
Cir. 1997).
“Evidence that similarly situated employees are disciplined more leniently is
admissible to support a disparate treatment claim when the plaintiff has
established that the co-employees are in fact similarly situated.” Anderson v.
WBMG-42, 253 F.3d 561, 564 (11th Cir. 2001). To be an adequate comparator,
the preferentially treated individual from outside plaintiff’s protected class must
be similarly situated to the plaintiff in all relevant respects. Holifield, 115 F.3d at
1562. If this is not the case, “the different application of workplace rules does not
constitute illegal discrimination.” Lathem v. Dep’t of Children & Youth Servs.,
172 F.3d 786, 793 (11th Cir. 1999). We have stated that “[t]he relevant inquiry is
not whether the employees hold the same job titles, but whether the employer
subjected them to different employment policies.” Id. When an individual proves
that he suffered an adverse employment action while his comparator did not,
although they both violated the same work rule, “this raises an inference that the
rule was discriminatorily applied.” Id. (citation omitted). In addition, we require
“that the quantity and quality of the comparator’s misconduct be nearly identical
to prevent courts from second-guessing employers’ reasonable decisions and
5
confusing apples with oranges.” Maniccia v. Brown, 171 F.3d 1364, 1368 (11th
Cir. 1999).
Here, we conclude from the record that the district court correctly
determined that Brown could not establish a prima facie case of racial
discrimination because he could not identify a similarly situated employee. OCSB
provided evidence establishing that Brown had a different area of responsibility
from those employees he sought to establish as comparators. Moreover, OCSB
provided evidence to establish that Brown suffered adverse employment action
due to an investigation into his area of responsibility. Employees with different
areas of responsibility were not similarly situated to Brown in “all relevant
respects,” see Holifield, 115 F.3d at 1562, and their conduct cannot be considered
“nearly identical” to that of Brown, see Maniccia, 171 F.3d at 1368. Accordingly,
we affirm the district court’s grant of summary judgment with respect to Brown’s
claims of racial discrimination under Title VII and §§ 1981 and 1983.
II. First Amendment claim
Next, Brown argues that the district court erred in concluding that OCSB
did not violate his First Amendment right to free speech. Specifically, Brown
argues that he spoke in his capacity as a citizen involving a matter of public
concern: the deliberate mishandling of hazardous materials on public school
6
campuses.
The government may not discharge an employee on a basis that infringes the
employee’s constitutionally protected speech interest. Bryson v. City of Waycross,
888 F.2d 1562, 1565 (11th Cir. 1989). However, a public employee’s speech is
entitled to protection only when the employee spoke as a citizen on a matter of
public concern. Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S. Ct. 1951, 1958
(2006). Claims by a public employee alleging retaliation in violation of the First
Amendment can be raised pursuant to 42 U.S.C. § 1983. See, e.g., Randall v.
Scott, 610 F.3d 701, 703 (11th Cir. 2010).
We have applied a multi-stage analysis to cases involving a public
employee’s free speech rights. Brochu v. City of Riviera Beach, 304 F.3d 1144,
1157 (11th Cir. 2002). First, we examine “whether the employee’s speech may be
‘fairly characterized as constituting speech on a matter of public concern.’” Id.
(quoting Rankin v. McPherson, 483 U.S. 378, 384, 107 S. Ct. 2891, 2897 (1987)).
This involves analyzing the content, form, and context of the speech. Brochu, 304
F.3d at 1157. If this requirement is met, we then apply a balancing test, weighing
the interests of the employee against the interests of the public employer. Id. The
first two steps are questions of law. The inquiry ends here unless the first two
steps are satisfied. Id.
7
In order to determine whether the speech is on a matter of public concern,
we must determine whether the speech was made primarily in the employee’s role
as a citizen or as an employee. Battle v. Bd. of Regents for Ga., 468 F.3d 755, 760
(11th Cir. 2006) (per curiam). When a public employee speaks pursuant to his
“official duties,” the employee is not speaking as a citizen, and the speech will not
be protected by the First Amendment. Id. The practical inquiry asks whether the
speech “owes its existence to [the] employee’s professional responsibilities.”
Abdur-Rahman v. Walker, 567 F.3d 1278, 1283 (11th Cir. 2009) (citing Garcetti,
547 U.S. at 421, 126 S. Ct. at 1960). Relevant, but nondispositive factors in this
inquiry include an employee’s job description, whether the speech occurred at the
workplace, and whether the speech concerns the subject matter of the employee’s
job. Abdur-Rahman, 567 F.3d at 1282-83. We have not previously allowed
employees to obtain constitutional protection for statements that owe their
existence to the employee’s performance of his official responsibilities, even if he
was not required to make the speech as a part of his official duties. Id. at 1286.
Here, we conclude from the record that the district court did not err in
determining that Brown’s speech at issue was not protected by the First
Amendment. Brown’s speech concerned the storage and handling of hazardous
materials and dangers encountered during the performance of his job and within
8
his job responsibilities. In addition, Brown’s speech occurred in the workplace,
through OCSB’s Employee Relations Department, rather than in a public forum,
another fact indicating that he was not speaking as a citizen on a matter of public
concern. Because Brown cannot establish that he was speaking on a matter of
public concern, the inquiry ends here. See Brochu, 304 F.3d at 1157.
Accordingly, we affirm the district court’s determination that OCSB did not
violate Brown’s First Amendment right to free speech.
Conclusion
For the aforementioned reasons, we affirm the district court’s grant of
summary judgment in favor of OCSB.
AFFIRMED.
9