             Case: 13-14610     Date Filed: 02/20/2014   Page: 1 of 14


                                                              [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT


                                  No. 13-14610
                              Non-Argument Calendar


                    D.C. Docket No. 5:10-cv-00083-LGW-JEG



DOUGLAS ENERGY RELIEF ASSOCIATION,
a.k.a. D.E.R.A., et al.,

                                                                            Plaintiffs,

VERA FREEMAN,

                                                                   Plaintiff-Appellant,

                                      versus

CITY OF DOUGLAS, GEORGIA,
CITY COMMISSIONERS,
Individually in Official and Private & Un-Private Capacities;
Present and Past,
FORMER 2004 YEAR MAYOR,
Individually in Official and Private and Un-Official Capacities,
100 JOHN DOES,
PRESENT MAYOR JACKIE WILSON,
Individually in Official and Private Capacities, et al.,

                                                             Defendants-Appellees.
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                      Appeal from the United States District Court
                         for the Southern District of Georgia


                                      (February 20, 2014)

Before HULL, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

       Plaintiff Vera Freeman sued defendants the City of Douglas, Georgia, the

City Commissioners, two City mayors, and many “John Does” (collectively

referred to as “the City”) for alleged discrimination against the City’s black

residents through fraudulent electrical billing practices.

       The district court granted the City defendants’ motion for summary

judgment on all of plaintiff Freeman’s claims. Plaintiff Freeman now appeals. 1

After review of the record and the parties’ briefs, we affirm.

                                 I.      BACKGROUND
       In her complaint, plaintiff Freeman alleged that the City discriminated

against its black residents through its electricity billing practices. Freeman alleged

that the City inflated its black residents’ electricity bills by fraudulently overstating

the number of kilowatt-hours that the City’s black residents consumed. To be



       1
        Plaintiff Douglas Energy Relief Association (“DERA”) also sued the City defendants for
the same claims in the district court. However, DERA did not appeal.


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clear, Freeman did not allege that the City charged its black residents a higher rate

for each kilowatt-hour consumed. Instead, Freeman alleged that the City stated

that its black residents consumed more kilowatt-hours of electricity than they

actually did. Freeman alleged that the City inflated black residents’ electrical

bills—and, thus, made the City’s black residents pay excessive electrical bills—

because of their race.

       Based on these allegations, Freeman filed a housing discrimination

complaint with the U.S. Department of Housing and Urban Development

(“HUD”). In her HUD complaint, Freeman alleged that the City, inter alia,

“overcharged and unfairly charged them fees” related to their electric bills. HUD

investigated those allegations and “determined that no reasonable cause exists to

believe that a discriminatory housing practice ha[d] occurred.” Based on this

conclusion, HUD issued a “Determination of No Reasonable Cause” and informed

Freeman of her right to file a civil action.

       Freeman exercised her right to file a civil action and sued the City in federal

court. She brought these federal claims: 2 (1) a race-based discrimination claim

pursuant to 42 U.S.C § 1983 for violation of her Fourteenth Amendment equal

protection rights and (2) a race-based discrimination claim pursuant to Title VIII of

       2
         Because plaintiff Freeman filed a “shotgun complaint,” the district court ordered her to
clarify the claims raised in the complaint. We list the claims that plaintiff Freeman raised in
response to the district court’s order to clarify the complaint.


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the Civil Rights Act of 1968, as amended by the Fair Housing Act (“FHA”).

Freeman also brought these state law claims: (3) fraud; (4) misrepresentation;

(5) breach of contract; (6) negligence; and (7) intentional infliction of emotional

distress.

       In support of her claims, Freeman produced nearly 2,000 pages of

documents for the district court. The vast majority of those documents were

(1) utility bills that the City sent to various residents for various billing periods and

(2) correspondence between plaintiff Freeman, the Douglas Energy Relief

Association, City residents, and/or HUD.

       After the close of discovery, the City moved for summary judgment on all

claims raised in the complaint. The district court granted the City’s motion. The

court stated that it “review[ed]—page by page—the specific documents cited by

Plaintiff” and concluded that Freeman “utterly and completely failed to support

[her] allegations with evidence.” The district court concluded that Freeman failed

to produce evidence that—at least with respect to electricity consumption—the

City’s black residents were similarly situated to the City’s non-black residents.

Without some evidence that the City’s black and non-black residents were

similarly situated, the district court concluded that there was insufficient evidence

supporting Freeman’s § 1983 and FHA claims. Thus, the district court granted the




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City’s motion for summary judgment on Freeman’s federal race-based

discrimination claims.

      Because Freeman’s state law claims were predicated on the City’s alleged

race-based discrimination, which was unsupported by the evidence, the district

court also granted the City’s motion for summary judgment on Freeman’s state law

claims.

      Plaintiff Freeman appeals.

                         II.   STANDARD OF REVIEW
      We review de novo the district court’s grant of summary judgment. Morales

v. Zenith Ins. Co., 714 F.3d 1220, 1226 (11th Cir. 2013). When reviewing the

evidence, we view all facts in the light most favorable to the non-moving party. Id.

      Summary judgment is appropriate only when “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). “Rule 56(c) mandates the entry of summary judgment, after

adequate time for discovery and upon motion, against a party who fails to make a

showing sufficient to establish the existence of an element essential to that party’s

case, and on which that party will bear the burden of proof at trial.” Celotex Corp.

v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986).




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                                III.   DISCUSSION
      To state a § 1983 equal protection claim, plaintiff Freeman must show that

she is similarly situated to non-black persons who received more favorable

treatment. See Sweet v. Sec’y, Dep’t of Corr., 467 F.3d 1311, 1318-19 (11th Cir.

2006) (“To establish an equal protection claim, a [plaintiff] must demonstrate that

(1) he is similarly situated to [others] who received more favorable treatment; and

(2) the state engaged in invidious discrimination against him based on race,

religion, national origin, or some other constitutionally protected basis.”); Jones v.

Ray, 279 F.3d 944, 946–47 (11th Cir. 2001) (stating that, to establish an equal

protection violation, a plaintiff must show, among other things, that “he is similarly

situated” to others who received more favorable treatment). Specifically, plaintiff

Freeman must show that the City overstated the number of kilowatt-hours of

electricity that she consumed but the City did not overstate the number of kilowatt-

hours of electricity that similarly-situated, non-black residents consumed.

      Freeman’s FHA race-based discrimination claim requires the same showing.

See Schwarz v. City of Treasure Island, 544 F.3d 1201, 1216 (11th Cir. 2008)

(“[A] disparate treatment claim [pursuant to the FHA] requires a plaintiff to show

that he has actually been treated differently than similarly situated [non-black]

people.”).




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      On appeal, Freeman directs this Court to these portions of the record: (1) a

comparison chart reflecting the electric bills of the City’s residents; (2) an analysis

of the City’s electric bills, which shows that black City residents use more

electricity than the national and state averages; (3) the City’s responses to

Freeman’s interrogatories; (4) plaintiff Freeman’s responses to the City’s

interrogatories; (5) Roy Wadley’s expert witness report; (6) Willis Papillion’s

expert witness report; and (7) an affidavit from a civil rights analyst, Edward

Freeman.

      We address each item below and explain why that evidence, viewed in

plaintiff Freeman’s favor, fails to establish that Freeman was similarly situated to

any non-black persons who received more favorable treatment with respect to their

electric bills. Specifically, Freeman’s evidence does not show that the City

charged Freeman with using more kilowatt-hours of electricity than she actually

used but did not over-charge similarly-situated, non-black persons for their

electricity consumption.

A.    Electricity Consumption Chart

      The chart of the City residents’ electrical usage does not provide sufficient

information to determine which residents, if any, were similarly situated to plaintiff

Freeman. Many factors affect one’s electric bill: the home’s size; the home’s

energy sources (e.g., gas, electric, solar, wood); the way that a home is built (e.g.,


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the number of doors, windows, the type of insulation, whether the home faces east

or south); the home’s location (e.g., further north, at a higher elevation); how a

home is occupied (e.g., seasonally, only on the weekends, only at night, all day);

the number of residents; the appliances used in the home (e.g., heat pump versus

furnace, electric versus gas water heater); the characteristics of those appliances

(e.g., the appliances’ ages, conditions, and efficiency ratings); efforts to conserve

energy (e.g., programmable thermostats, turning off unused lights and appliances,

maintaining lower thermostat settings in the winter or higher settings in the

summer, using LED bulbs). Freeman provided no evidence that the residents in

the comparison chart had homes with similar energy consumption.

      Moreover, even if the energy efficiency and consumption characteristics

were similar across all residences in the City, the comparison chart does not

compare electrical consumption for a specific time period or periods. Thus, the

energy consumption comparison does not account for such things as the specific

weather conditions on a given day, week, or month. Nor does the energy

consumption comparison account for the season (e.g., winter versus spring).

      Without some evidence that the comparison chart reflects a difference in

electrical consumption for people who are similarly situated in all respects but their

race, the comparison chart fails to establish a critical part of Freeman’s federal




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claims—namely, that Freeman is similarly situated to non-black persons who were

not overcharged for their kilowatt-hours of electricity consumption.

B.    National and State Data

      For similar reasons, Freeman’s evidence that the City’s black residents

consumed more electricity than the state and national averages does not satisfy the

“similarly situated” element of her federal claims. Residents across Georgia are

not similarly situated to the City’s residents. Some Georgia residents live in the

mountains; some live at the beach. Some live in sprawling estates; some live in

studio apartments. Some use their homes seasonally; some reside in the same

home all year. Other than their state of residence, Freeman provided no evidence

that the “average” Georgia resident is similarly situated to the City’s black

residents in terms of electricity consumption.

      For obvious reasons, the differences between the City’s black residents’

energy consumption and that of the “average” national resident are even greater, as

the geography, weather, and energy sources vary greatly across the nation.

C.    The City’s Interrogatory Responses

      The City’s responses to Freeman’s interrogatory requests also fail to

establish the “similarly situated” elements of Freeman’s federal claims. Freeman

directed the Court to Interrogatory No. 4 and Interrogatory No. 12. In

Interrogatory No. 4, Freeman asked for the addresses of all residents in two of the


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City’s four wards where the residents used 4,000 to 5,000 kilowatt-hours of

electricity in any month between 2005 to 2010. The City stated that it could not

produce the requested information without substantial expense because the City

would have to contract with the software company that created the billing software

to generate a program to retrieve the requested information.

      In Interrogatory No. 12, Freeman asked the City to explain the process for

recording residents’ electricity consumption into the City’s computer database. In

response, the City stated that meter readers rotated through the City’s four wards

on a predetermined schedule (e.g., Ward 1 on the 1st of each month, Ward 2 on the

7th of each month, etc.). The City stated that, after completing their routes, the

meter readers upload their readings to City Hall for billing.

      These interrogatory responses establish very little. They certainly do not

establish the “similarly situated” elements of Freeman’s federal claims.

D.    Plaintiff Freeman’s Interrogatory Responses

      Plaintiff Freeman’s responses to the City’s interrogatory requests also fail to

establish the “similarly situated” elements of Freeman’s federal claims. Plaintiff

Freeman’s responses establish that (1) the City’s electricity wards are divided

predominantly along racial lines, (2) the “wards were established many years ago

when [the City] established the utility service,” (3) the City charges the same rate

and fees to all residential customers, and (4) the City’s computerized billing


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program cannot differentiate between white and black residents. 3 None of the facts

from Freeman’s interrogatory responses establish the “similarly situated” elements

of Freeman’s federal claims.

E.     Wadley’s Report

       Roy Wadley’s expert report relies on national and state energy consumption

data and a comparison of fourteen electric bills from black and white residents in

the City. However, as with the consumption comparison chart and the state and

national data, nothing in Wadley’s report shows that the white comparators

analyzed in his report were similarly situated to Freeman. In fact, the comparison

of City resident data is based on electric bills of black City residents from 2004,

2008, and 2010. Yet, the data for the white resident comparators are based on

energy consumed in 2005. There is no evidence that weather conditions for these

various dates—spanning many years—produced “similar” electricity consumption.

Nor is there any indication that the homes, living conditions, or energy use in those

homes were similar in any way.

       Notwithstanding these deficiencies in the national, state, and City

comparisons, Wadley’s report concludes that the disparities in the electric bills of

the City’s white and black residents are “evidence of discrimination.” While the


       3
        The remainder of Freeman’s interrogatory responses contains non-factual statements
concerning the nature of Freeman’s claims and allegations.


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Court must view the evidence in plaintiff Freeman’s favor at this summary

judgment stage, the Court need not accept Wadley’s legal conclusion because it is

unsupported by the facts. See Evers v. Gen. Motors Corp., 770 F.2d 984, 986

(11th Cir. 1985) (“This court has consistently held that conclusory allegations

without specific supporting facts have no probative value.”); see also Hilburn v.

Murata Electronics N. Am., Inc., 181 F.3d 1220, 1228 (11th Cir. 1999) (“[T]he

absence of any specific facts which would substantiate [the expert’s] conclusion

deprives [her conclusions] of any probative value.”).

F.    Papillion’s Report

      As noted above, after investigating plaintiff Freeman’s allegations of

discrimination, HUD “determined that no reasonable cause exist[ed] to believe that

a discriminatory housing practice ha[d] occurred.” Plaintiff Freeman’s expert,

Willis Papillion, issued a report stating that the HUD investigation was flawed for

two reasons:

      First, the HUD investigator allowed the City to choose the sample of electric

bills analyzed by HUD, rather than using a randomly selected sample of electric

bills. Second, the HUD investigator misunderstood Freeman’s claim. Specifically,

plaintiff Freeman alleged that the City overstated black residents’ electricity

consumption (e.g., number of kilowatt-hours consumed). But, the HUD

investigator investigated disparities in the rate charged to black residents (e.g., cost


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per kilowatt-hour consumed). Freeman agreed with the HUD investigator that

black and non-black residents were charged the same rate for each kilowatt-hour

consumed. However, she alleged that the City inflated the amount of electricity

that its black residents consumed, and, thus, the City forced black residents to pay

higher electric bills than their non-black counterparts.

      Even if Papillion’s report could be used to demonstrate flaws in the HUD

investigation, nothing in Papillion’s report provides evidence that the City inflated

the black residents’ electricity consumption because of their race. Nor does

Papillion’s report indicate that plaintiff Freeman was similarly situated to any non-

black residents with respect to actual electricity consumption.

G.    Edward Freeman’s Affidavit

      Edward Freeman 4 is a retired HUD specialist and a civil rights analyst. His

affidavit also challenged the HUD investigator’s methodology and conclusion.

But, demonstrating flaws in the HUD investigator’s methods does not establish

plaintiff Freeman’s causes of action.

      In addition to challenging HUD’s investigation, Edward Freeman’s affidavit

draws the legal conclusion that the City “gives preferential treatment to Caucasians

and discriminates against African Americans who are similarly situated” through

inflated electric bills. But, as noted above, the Court does not accept legal

      4
          It is unclear from the record whether plaintiff Freeman and Edward Freeman are related.


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conclusions unsupported by the facts. See Evers, 770 F.2d at 986; see also

Hilburn, 181 F.3d at 1228 (“[T]he absence of any specific facts which would

substantiate [the expert’s] conclusion deprives [his conclusions] of any probative

value.”). Notably, Edward Freeman’s conclusion is based on the same evidence

discussed above: the consumption comparison chart, national and state averages of

electricity consumption, and the City’s interrogatory responses. However, neither

Edward Freeman nor plaintiff Freeman explained how this evidence satisfies the

“similarly situated” requirements in plaintiff Freeman’s federal claims.

                              IV.    CONCLUSION
      Without some evidence showing that the proffered comparators reflect

similarly-situated persons who only differ by race, Freeman’s §1983 and FHA

federal claims fail as a matter of law. See Sweet, 467 F.3d at 1318-19; Schwarz,

544 F.3d at 1216. As Freeman concedes, her other causes of action are all

predicated on the City’s alleged race-based discrimination. Without evidence of

race-based discrimination, Freeman’s state law claims also fail.

      For these reasons, the district court’s grant of the City’s motion for summary

judgment is affirmed.

      AFFIRMED.




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