                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 05-14816                ELEVENTH CIRCUIT
                         Non-Argument Calendar               JULY 25, 2006
                       ________________________           THOMAS K. KAHN
                                                                CLERK
                   D. C. Docket No. 03-22323-CV-ASG

JOHN B. HAMPTON,

                                                  Plaintiff-Appellant,

                                  versus

CITY OF SOUTH MIAMI, a Florida municipality,
CHARLES D. SCURRY,
ORLANDO MARTINEZ,
JEANETTE NAVARRO,

                                                  Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________

                              (July 25, 2006)

Before BLACK, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:
        John B. Hampton, an African-American male, appeals from the district

court’s grant of summary judgment to the City of South Miami (“the City”) as to

his claims for breach of contract and the covenant to perform in good faith, under

Florida law, and race discrimination, under Title VII of the Civil Rights Act of

1964, 42 U.S.C. 2000e, et seq. (“Title VII”), 42 U.S.C. §§ 1981, 1983, and the

Florida Civil Rights Act (“FCRA”).1                    On appeal, Hampton argues that, in

connection with the entry of summary judgment, the district court improperly

made factual findings relating to credibility and disputed evidence and failed to

draw all permissible factual inferences in favor of him. After careful review, we

affirm.

        In the complaint, Hampton alleged that he was terminated because of his

race and in retaliation after he spoke to the Mayor of the City and a City

Commissioner about (1) misuse of City personnel to maintain private vehicles at

Public Works Director Orlando Martinez’s direction, and (2) discriminatory

practices    against     African-American          employees       within     the   Public     Works

Department. The City’s reasons for firing Hampton included his failure to disclose

on his job application that (1) he had been arrested for having a suspended license

and for missing commercial markings on his truck; (2) prior to his resignation from


        1
         After a de novo review, we find no error in the district court’s disposition of Hampton’s
retaliation claims and, accordingly, affirm on the basis of the district court’s well-reasoned analysis.

                                                   2
his prior job at the City of Coral Gables, he was recommended for termination after

he admitted depositing a stolen check into his own account; and (3) he previously

had been employed by United Parcel Service (“UPS”). In his complaint, Hampton

alleged that the foregoing reasons were pretextual and that the true reason for his

termination was discrimination and retaliation based on race.

      We review de novo the district court’s grant of a motion for summary

judgment, viewing all evidence and factual inferences in the light most favorable to

the nonmoving party. Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1060 (11th

Cir. 1994). “Summary judgment is appropriate where the evidence shows ‘that

there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.’265 F.3d 1186, 1192 (11th Cir. 2001)

(quoting Fed. R. Civ. P. 56(c)).

      On appeal, Hampton first argues, in connection with the entry of summary

judgment on his breach-of-contract claim and attendant covenant to perform in

good faith, that the City Code provides for discharge of permanent City employees

only for lack of “good behavior, the satisfactory performance of work, necessity

for the performance of work, and the availability of funds.” Hampton contends

that City Manager Charles D. Scurr disregarded the Code and instead followed

Director Martinez’s recommendation to fire Hampton for a reason (the job



                                         3
application omissions) not found within the Code.       Hampton asserts that the

following issues should have been submitted to a jury: (1) whether his failure to

disclose two arrests on his application constituted misconduct because the arrests

were for non-moving traffic violations; (2) whether his failure to disclose the

events preceding his resignation from his position at the City of Coral Gables

constituted misconduct because his record indicates only that he voluntarily

resigned; and (3) whether his failure to disclose his previous employment by UPS

constituted misconduct because the City job application form requested only ten

years of history. We disagree.

      Under Florida law, “in the absence of language in the employee manual

expressly providing that the manual constitutes a separate employment agreement,

or the parties’ explicit mutual agreement to that effect, policy statements in the

employment manual do not constitute the terms of a contract of employment.”

Quaker Oats Co. v. Jewell, 818 So. 2d 574, 578 (Fla. Dist. Ct. App. 2002).

Moreover, in Florida, “[a]n employee may be terminated at will, without a showing

of cause, where the employment contract between the parties is indefinite as to the

period of employment.” Linafelt v. Bev, Inc., 662 So. 2d 986, 989 (Fla. Dist. Ct.

App. 1995).




                                         4
       Here, the City’s personnel policies and Code did not contain language

expressly providing that they constituted a separate employment agreement.

Moreover, even if we may infer an employment contract from the policies and

procedures embodied in the Code and personnel manual, because “no definite

period of employment” was included for Hampton, under Florida law he could be

terminated at will.       Accordingly, we discern no error in the entry of summary

judgment on the breach-of-contract and covenant-to-perform-in-good-faith claims.

       Turning to Hampton’s discrimination claims under Title VII and the FRCA,

Title VII makes it unlawful for an employer “to discharge any individual, or

otherwise to discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s race,

color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a).2 “Where, as here,

a plaintiff predicates liability under Title VII on disparate treatment and also claims

liability under sections 1981 and 1983, the legal elements of the claims are

identical.” Stallworth v. Shuler, 777 F.2d 1431, 1433 (11th Cir. 1985). We apply

the analytical framework established in McDonnell Douglas Corp. v. Green, 411



       2
          Federal case law interpreting Title VII is applicable to cases arising under the FCRA.
See Florida State Univ. v. Sondel, 685 So.2d 923, 925 n.1 (Fla. Dist. Ct. App. 1996); see also Wilbur
v. Corr. Servs. Corp., 393 F.3d 1192, 1195 n.1 (11th Cir. 2004) (noting in a retaliation case that the
FCRA is patterned after Title VII and no independent analysis of the claim under the FCRA is
necessary).

                                                  5
U.S. 792 (1973), and Texas Dep’t of Comty. Affairs v. Burdine, 450 U.S. 248

(1981) when a Title VII plaintiff uses circumstantial evidence to prove his case.

Durley v. APAC, Inc., 236 F.3d 651, 655 (11th Cir. 2000).3

       Under the McDonnell Douglas framework, a plaintiff first must show an

inference of discriminatory intent, and thus carries the initial burden of establishing

a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802.

The plaintiff’s successful assertion of a prima facie case “creates a rebuttable

presumption that the employer unlawfully discriminated against her.” E.E.O.C. v.

Joe’s Stone Crab, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002) (citing U.S. Postal

Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983)).                      If the plaintiff


       3
          Hampton may prove a prima facie claim of discrimination through (1) direct evidence,
(2) circumstantial evidence, or (3) statistical proof. See Earley v. Champion Int’l Corp., 907 F.2d
1077, 1081 (11th Cir. 1990). We have “defined direct evidence as evidence, which if believed,
proves the existence of fact in issue without inference or presumption.” Bass v. Bd. of County
Comm’rs, Orange County, Fla., 256 F.3d 1095, 1112 (11th Cir. 2001) (quotations and emphasis
omitted). Because statements of discriminatory intent must be made by a person involved in the
challenged decision to constitute direct evidence of discrimination, “remarks by non-decision
makers or remarks unrelated to the decision-making process itself are not direct evidence of
discrimination.” Id. at 1105.

        We are unpersuaded by Hampton’s argument that a racial slur made by Director Martinez
constituted direct evidence of discrimination and disparate treatment, which precluded summary
judgment. Because Scurr was the decision maker here and Hampton points to no direct evidence
relating to Scurr, the slur by Martinez, a non-decisionmaker, does not constitute direct evidence of
discrimination. Id. Moreover, on this record, we cannot find that Scurr acted as a “mere conduit”
for Martinez’s racial animus as it was undisputed that Scurr relied on Police Chief Cokes Watson’s
independent report and Hampton’s predetermination hearings and did not rely solely on Martinez’s
“biased recommendation.” See Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir.
1999).


                                                 6
successfully demonstrates a prima facie case, the burden then shifts to the

employer to produce evidence that its action was taken for a legitimate, non-

discriminatory reason.   See Joe’s Stone Crab, 296 F.3d at 1272.         “Should the

employer meet its burden of production, the presumption of discrimination is

rebutted, and the inquiry ‘proceeds to a new level of specificity,’ in which the

plaintiff must show that the proffered reason really is a pretext for unlawful

discrimination.” Id. at 1272-73 (quoting Burdine, 450 U.S. at 255-56). “Although

the intermediate burdens of production shift back and forth, the ultimate burden of

persuading the trier of fact that the employer intentionally discriminated against the

employee remains at all times with the plaintiff.” Id. at 1273.

      After assuming that Hampton met his initial prima facie burden, the district

court proceeded to the second step of the McDonnell Douglas inquiry and held that

the City articulated legitimate, non-retaliatory reasons for its employment decision

-- namely, that Hampton’s employment application included falsifications and

omissions. At the third step of the inquiry, to establish pretext, Hampton had to

      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 by showing that the
      employer’s proferred explanation is unworthy of credence.




                                       7
Jackson v. Ala. State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005)

(alteration in original) (quotations and citation omitted).    Thus, Hampton was

required to produce sufficient evidence to allow a reasonable finder of fact to

conclude that the City’s articulated reasons were not believable. Id. He could do

this by pointing to “weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions” in the proferred explanation. Id.

      “[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 Ctr. v. Hicks, 509 U.S. 502, 515 (1993).

      After our own careful review of the record, we can find no error in the

district court’s analysis and conclusion that Hampton did not satisfy his burden at

the third step of the McDonnell Douglas inquiry. Indeed, in its thorough and well-

reasoned opinion, applying this Court’s settled case law on the subject, the court

considered and rejected virtually every argument raised in this appeal.      On the

basis of the district court’s thorough and well-reasoned analysis of Hampton’s

discrimination claims, we affirm.



                                          8
AFFIRMED.




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