              Case: 11-15210     Date Filed: 02/19/2013   Page: 1 of 18

                                                              [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                  No. 11-15210
                              Non-Argument Calendar
                            ________________________

                        D.C. Docket No. 1:09-cv-22662-STB


SANJEEV SIRPAL,

                                                                 Plaintiff-Appellant,

                                        versus

UNIVERSITY OF MIAMI,
a Florida not for profit corporation,
JAMES D. POTTER, Ph.D.,
JOSE RENATO PINTO, Ph.D.,
CLAUDIA RODRIGUES, Ph.D.,

                                                             Defendants-Appellees.

                            ________________________

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

                                 (February 19, 2013)

Before CARNES, BARKETT and MARTIN, Circuit Judges.

PER CURIAM:
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       This case arises out of Sanjeev Sirpal’s dismissal from the University of

Miami’s (UM) graduate school and medical school. Based on the circumstances

surrounding his dismissal, Sirpal filed suit against UM, Dr. James Potter, Dr. Jose

Pinto, and Dr. Claudia Rodrigues (collectively Defendants) alleging a variety of

claims. A magistrate judge1 granted summary judgment to the Defendants on

Sirpal’s claims of racial discrimination (Counts I and III), breach of contract

(Count II), defamation (Counts IV, VII, VIII, and IX), and tortious interference

(Count X). Sirpal appeals this decision.

       After the summary judgment ruling, Sirpal moved to dismiss the two

remaining counts of his complaint (Counts V and VI) without prejudice. The

magistrate judge granted this motion, but denied his request to equitably toll the

statute of limitations as to those counts. Sirpal also appeals this decision.

       “This Court reviews the granting of summary judgment de novo, applying

the same legal standards which bound the district court.” Whatley v. CNA Ins.

Cos., 189 F.3d 1310, 1313 (11th Cir. 1999). “Summary judgment is appropriate

only when there is no genuine issue as to any material fact and . . . the moving

party is entitled to a judgment as a matter of law.” Id. (quotation marks omitted).

In making this determination, all “evidence must be viewed in the light most

1
 The parties consented to jurisdiction before the magistrate judge. 28 U.S.C. § 636(c); Fed. R.
Civ. P. 73.
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favorable to the party opposing the motion for summary judgment.” Blackston v.

Shook and Fletcher Insulation Co., 764 F.2d 1480, 1482 (11th Cir. 1985). “The

question of whether equitable tolling applies is a legal one [also] subject to de novo

review.” Cabello v. Fernandez-Larios, 402 F.3d 1148, 1153 (11th Cir. 2005).

                             I.     DISCRIMINATION CLAIMS

         In Counts I and III, Sirpal brought claims for race discrimination under Title

VI of the Civil Rights Act, 42 U.S.C. § 2000d et. seq., and 42 U.S.C. § 1981, and

appeals the grant of summary judgment in favor of the Defendants on these claims.

         To establish a violation of either Title VI or § 1981, a plaintiff must show

that a challenged action was the result of intentional discrimination on the part of

the defendant. See Howard v. BP Oil Co., Inc., 32 F.3d 520, 524 n. 2 (11th Cir.

1994); Elston v. Talladega Cnty. Bd. of Educ., 997 F.2d 1394, 1405–06 & n.11

(11th Cir. 1993). The plaintiff may use direct evidence or, in the absence of direct

evidence, circumstantial evidence that satisfies the McDonnell Douglas burden-

shifting framework. 2 See Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330–

31 (11th Cir. 1998); 15 Am. Jur. 2d Civil Rights § 389 (2012).




2
    McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03, 93 S. Ct. 1817, 1824 (1973).
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      Sirpal argues that he sufficiently established intentional discrimination

through both direct evidence and circumstantial evidence. We address each

method of proof in turn.

                                         A.

      “Direct evidence is evidence that establishes the existence of discriminatory

intent behind the employment decision without any inference or presumption.”

Standard, 161 F.3d at 1330. Thus, “remarks by non-decisionmakers or remarks

unrelated to the decisionmaking process itself are not direct evidence of

discrimination.” Id. It is uncontroverted that the only discriminatory remarks

Sirpal alleges were not made by the individuals who ultimately decided to dismiss

Sirpal from UM’s graduate school and medical school, the challenged actions in

this case.

      Sirpal argues that he has shown direct evidence of discrimination because

this is a “cat’s paw” case. A cat’s paw case is one in which the “harasser

employed the decisionmaker as her ‘cat’s paw’—i.e., the decisionmaker acted in

accordance with the harasser’s decision without herself evaluating the employee’s

situation.” Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249 (11th Cir.

1998). “In a cat’s paw situation, the harasser clearly causes the tangible

employment action, regardless of which individual actually signs the employee’s

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walking papers.” Id. In cat’s paw cases, the harasser’s statements may be direct

evidence of discrimination even though the harasser was a non-decisionmaker.

See id.

      However, this was not a cat’s paw case. Prior to Sirpal’s dismissal from

UM’s graduate school and medical school, each school conducted some sort of

independent investigation. At the graduate school, the Graduate Committee

allowed Sirpal to testify at a hearing before dismissing him from his M.D./Ph.D.

program on the ground that he had engaged in misconduct and unethical behavior

in the lab he worked in. When Sirpal appealed this decision, Dr. John Bixby,

Associate Dean for Graduate Studies for the medical school, met with the Graduate

Committee members, the University Security Officer who had investigated one of

the allegations of misconduct, the lab manager, Ms. Jones, and Sirpal. Therefore,

even if Sirpal’s supervisor, Dr. Potter, had submitted to the Graduate Committee a

report that “rubberstamped” the discriminatory animus of Sirpal’s harassers as

Sirpal alleges, this is not a cat’s paw case because the independent investigation

determined that dismissal was, apart from Dr. Potter’s recommendation, entirely

justified. See Staub v. Proctor Hosp., ___ U.S. ___, ___, 131 S. Ct. 1186, 1193

(2011); cf. Llampallas, 163 F.3d at 1249–50 (analyzing whether plaintiff’s Title

VII claim was a “cat’s paw case” and explaining that “[w]hen the employer makes

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an effort to determine the employee’s side of the story before making a tangible

employment decision affecting that employee . . . it should not be held liable . . .

for that decision based only on its employee’s hidden discriminatory motives”).

      Similarly, the medical school conducted an independent investigation, which

included hearing Sirpal’s side of the story, before dismissing Sirpal from its

program. After he was dismissed from the graduate school, questions arose

regarding the source of data Sirpal used in an article he co-published with Dr.

Potter. UM’s Vice Provost for Research initiated a scientific misconduct

investigation concerning the data. A Preliminary Investigative Committee, Full

Investigative Committee and a forensic examining company investigated Sirpal’s

potential research misconduct and considered oral and written testimony by Sirpal,

interviews, and other evidence. During these investigations Sirpal was placed on a

mandatory leave of absence based on the allegations of misconduct underlying his

dismissal from the graduate school. After a thorough investigation, the Medical

Education Administration dismissed Sirpal from the medical school, citing

unprofessional conduct as its reason.

      Thus, Sirpal did not show direct evidence of discrimination which caused

the adverse action.



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                                          B.

      When a discrimination claim is supported by circumstantial evidence, the

district court may analyze the case using the burden-shifting framework set out in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–03, 93 S. Ct. 1817, 1824

(1973). Under the McDonnell Douglas framework, the plaintiff bears the initial

burden of presenting sufficient evidence to allow a reasonable jury to determine

that he has satisfied the elements of his prima facie case. Id. at 802, 93 S. Ct. at

1824. If the plaintiff presents a prima facie case and the employer offers a

legitimate, non-discriminatory reason for the adverse employment action, the

burden shifts back to the plaintiff to show that the stated reason is a mere pretext

for unlawful discrimination. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d

1253, 1264 (11th Cir. 2010).

      Sirpal argues that the magistrate judge erred in determining that he had not

established that similarly situated individuals had been treated differently and

therefore had not established a prima facie case of discrimination. Sirpal argues

that he was treated differently than Dr. Potter and Dr. Pinto and that those two

individuals were similarly situated.

      This argument ultimately fails. “When comparing similarly situated

individuals to raise an inference of discriminatory motivation, the individuals must

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be similarly situated in all relevant respects besides race . . . since ‘[d]ifferent

treatment of dissimilarly situated persons does not violate’ civil rights laws.”

Jackson v. Bellsouth Telecomm., 372 F.3d 1250, 1273 (11th Cir. 2004) (internal

citations omitted). Neither Dr. Potter nor Dr. Pinto is “similarly situated in all

relevant respects besides race.” Id.

      First, Sirpal argues that he was similarly situated to Dr. Potter because they

were co-authors of the article that was the subject of a research misconduct

investigation and were both investigated by UM. Sirpal was subjected to a

mandatory leave of absence while the investigation was pending and Dr. Potter

was not. But, contrary to Sirpal’s argument, he and Dr. Potter were not similarly

situated. Sirpal was placed on a mandatory leave of absence from the medical

school in significant part based on the same allegations that had already led to his

dismissal from the graduate school, and which the medical school was

independently investigating. There is no indication that Dr. Potter was facing other

allegations of misconduct separate from the research misconduct investigation.

Also, Sirpal was a student at UM while Dr. Potter was an employee, professor, and

Department Chair. Thus, Sirpal and Dr. Potter had different relationships with

UM. Cf. Lathem v. Dept. of Children and Youth Servs., 172 F.3d 786, 793 (11th

Cir. 1999) (explaining that when determining whether individuals were similarly

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situated “[t]he relevant inquiry is not whether the employees hold the same job

titles, but whether . . . [they were] subjected . . . to different employment policies”).

      Second, Sirpal argues that he was similarly situated to Dr. Pinto. He says

that he was treated differently from Dr. Pinto because when he was accused of an

ethical violation he was dismissed, but when Dr. Pinto solicited Sirpal “to include

him as an author on work he made no contribution toward,” an action that was

unethical, Dr. Pinto was not even reprimanded. Again, Sirpal was not similarly

situated to Dr. Pinto in all relevant aspects. Dr. Pinto was a post-doctorate fellow

as opposed to a student, and was therefore subject to a different set of policies than

Sirpal. Id.

      Because Sirpal failed to show that his dismissal from UM’s graduate school

and medical school were the result of racial discrimination using either direct

evidence or circumstantial evidence, the magistrate judge properly granted

summary judgment in favor of the Defendants on the discrimination claims.

                       II.    BREACH OF CONTRACT CLAIM

      In Count II, Sirpal sued UM for breach of contract on the ground that UM

failed to provide Sirpal with “due process,” a “fair investigation,” and “access to

his academic records.” Sirpal appeals the magistrate judge’s grant of summary

judgment in favor of UM on this claim as well.

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      Under Florida law, the legal relationship between a private university and a

student is “solely contractual in character.” Jallali v. Nova Se. Univ., Inc., 992 So.

2d 338, 342 (Fla. 4th DCA 2008) (quotation marks omitted). The university “may

set forth the terms under which it will admit and subsequently graduate students

who subject themselves to the rules, regulations and regimen of the college.”

Univ. of Miami v. Militana, 184 So. 2d 701, 704 (Fla. 3d DCA 1966). These terms

may be derived from university publications such as the student handbook and

catalog. Jallali, 992 So. 2d at 342. “A court will not interfere with a private

university’s enforcement of its regulations unless the university has acted

arbitrarily and capriciously, in violation of a constitution or statute, or for

fraudulent purposes.” Id. at 343.

      Sirpal argues that UM was arbitrary and capricious because it: 1) used a

procedure different from the one outlined in the Honor Code and Student

Handbook to investigate his alleged misconduct, resulting in his arbitrary dismissal

from the graduate school; 2) placed him on a leave of absence from the medical

school; and 3) withheld his transcripts.

      These arguments are also unsuccessful for Sirpal. First, we agree with the

magistrate judge that Sirpal has not raised a genuine issue of material fact as to

whether UM acted arbitrarily and capriciously in its investigation of Sirpal’s

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misconduct and dismissal of Sirpal from the graduate school. As explained by the

magistrate, “Sirpal has failed to show that any of the procedures he cites in any of

UM’s documents were mandatory and/or exclusive, and fails to establish that

UM’s decision to apply [the specific procedure] was arbitrary, malicious, or in bad

faith.” Further, because Sirpal was notified of the Graduate Committee’s

proceedings, Sirpal had an opportunity to be heard, and the Committee’s decision

was based on substantial evidence, Sirpal was afforded due process. See Matar v.

Fla. Int’l Univ., 944 So. 2d 1153, 1160–61 (Fla. 3d DCA 2006) (discussing the due

process required in student disciplinary proceedings). Sirpal also had the

opportunity to appeal the decision of the Graduate Committee. An Associate Dean

then completed a secondary investigation and Sirpal was able to appeal the

Associate Dean’s affirmance to the Dean of the graduate school and the Graduate

Student Appeals Committee.

      Second, we agree with the magistrate judge that Sirpal has not raised a

genuine issue of material fact as to whether UM acted arbitrarily by placing Sirpal

on a leave of absence from the medical school. The Medical Student Handbook

explicitly allows the school to require a mandatory leave of absence “for

professional misconduct or other reasons” and the reasons provided by UM “were



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not arbitrary, based on bad faith or malice.” In addition, the medical school

followed the procedures outlined in the Handbook related to “Mandatory Leave.”

      Third, we agree with the magistrate judge that Sirpal has not raised a

genuine issue of material fact as to whether UM’s decision to withhold his

transcripts during the time period alleged was arbitrary and capricious. Dr. Robert

Hernandez explained that the transcripts were withheld according to the school’s

policies, Sirpal’s dismissal from the graduate school and the M.D./Ph.D. program,

and the uncertain nature of Sirpal’s status at the medical school. Dr. Hernandez

said it was for these reasons, and to ensure accuracy, that a hold was placed on

Sirpal’s “official medical school and graduate school transcripts until all

investigations and questions regarding [Sirpal’s] status were resolved.”

      Therefore, it was proper for the magistrate judge to grant summary judgment

in favor of UM on the breach of contract claim.

                           III.     DEFAMATION CLAIMS

      In Counts IV, VII, VIII, and IX, Sirpal brought claims against Dr.

Rodrigues, Dr. Potter, and UM for defamation. He appeals the magistrate judge’s

grant of summary judgment in favor of the Defendants on these claims as well.

      Under Florida law, to prove a claim of defamation a plaintiff who is a

private person must show that the defendant published a false and defamatory

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statement, that there were actual damages, and that the defendant acted negligently.

Jews for Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008). “Words are

defamatory when they tend to subject one to hatred, distrust, ridicule, contempt or

disgrace or tend to injure one in one’s business or profession.” Am. Airlines, Inc.

v. Geddes, 960 So. 2d 830, 833 (Fla. 3d DCA 2007) (quotation marks omitted).

      First, as to Count IV, Sirpal has not shown that Dr. Rodrigues made any

false and defamatory statements. Sirpal alleges that two statements are at issue in

his claim against Dr. Rodrigues. The first is Dr. Rodrigues’ statement to the

University Security Officer investigating the unauthorized access of her computer

that Sirpal was a person she previously had problems with. We agree with the

magistrate judge’s assessment that this statement was not a false and defamatory

statement because it was made in direct response to the Security Officer’s request

that Dr. Rodrigues name anyone with whom she had experienced problems with

and in her view she had experienced problems with Sirpal. The second statement

underlying Sirpal’s claim is a statement that Dr. Rodrigues is alleged to have made

to Dr. Bixby about Sirpal being the person who accessed her computer without

authorization. Sirpal presented no evidence that such a statement was made during

the time period alleged in the complaint.



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      Second, Sirpal has not sufficiently supported his Count VII claim that Dr.

Potter and UM defamed him by way of statements Dr. Potter made in a

memorandum to the Graduate Committee regarding Sirpal’s dismissal from Dr.

Potter’s lab. Dr. Potter’s communication to the Graduate Committee was

conditionally privileged under Florida law because Dr. Potter and the Graduate

Committee had corresponding interests in starting any investigation that was

required based on the serious allegations underlying Sirpal’s dismissal from the

lab. See Nodar v. Galbreath, 462 So. 2d 803, 809 (Fla. 1984); Jarzynka v. St.

Thomas Univ. of Law, 310 F. Supp. 2d 1256, 1267 (S.D. Fla. 2004). Therefore,

Sirpal “must plead express malice to proceed with his claim.” Jarzynka, 310 F.

Supp. 2d at 1268 (footnote omitted). Sirpal has not provided sufficient evidence of

malice to survive summary judgment.

      Third, with respect to Count VIII, Sirpal has not shown that Dr. Potter and

UM defamed him through statements Dr. Potter made to the Preliminary

Investigative Committee during the scientific research misconduct investigation.

We agree with the magistrate’s conclusion that none of the three statements

outlined in Sirpal’s complaint support Sirpal’s defamation suit: the first statement,

as it was actually made by Dr. Potter, was truthful and there is no evidence that the

other two statements were made.

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      Last, Sirpal has not shown that Dr. Potter and UM defamed him as alleged in

Count IX. In that count, Sirpal alleged that Dr. Potter told the University of

Florida that “Sirpal had altered the image that appeared in the [investigated]

article.” We agree with the magistrate judge that there is no evidence that Dr.

Potter ever made a statement that Sirpal had altered the image.

      Accordingly, it was appropriate for the magistrate judge to grant summary

judgment in favor of the Defendants on the defamation claims.

                     IV.    TORTIOUS INTERFERENCE CLAIM

      In Count X, Sirpal sued UM and Dr. Potter for tortious interference with

Sirpal’s business relationship with two other universities, Tufts University and the

University of Florida. Sirpal appeals the magistrate judge’s grant of summary

judgment in favor of UM and Dr. Potter on this claim.

      Under Florida law, to succeed on a claim of tortious interference with a

business relationship a plaintiff must show: “(1) the existence of a business

relationship . . . ; (2) knowledge of the relationship on the part of the defendant; (3)

an intentional and unjustified interference with the relationship by the defendant;

and (4) damage to the plaintiff as a result of the breach of the relationship.” See

Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So. 2d 812, 814 (Fla. 1994)

(quotation marks omitted). While the business relationship “need not be evidenced

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by an enforceable contract,” the relationship generally must be “evidenced by an

actual and identifiable understanding or agreement which in all probability would

have been completed if the defendant had not interfered.” Id. at 814–15.

      The magistrate judge held that Sirpal had not sufficiently demonstrated that

he had a business relationship with Tufts to support a tortious interference claim as

to that university. Sirpal does not challenge this determination. Sirpal only argues

that the magistrate judge erred in determining that he had not demonstrated that

UM and Dr. Potter tortiously interfered as to the University of Florida. He asserts

that UM interfered by withholding transcripts and that Dr. Potter interfered by

“falsely inform[ing] [the University of Florida] that [he] was undergoing research

misconduct investigations.”

      Sirpal does not prevail with this argument. Sirpal has not shown that UM

“unjustifi[ably] interfere[d]” with any relationship he had with the University of

Florida. See Tamiami Trail Tours, Inc. v. Cotton, 463 So. 2d 1126, 1127 (Fla.

1985). As discussed above, UM’s decision to withhold the transcripts from the

University of Florida was justifiable.

      Further, Sirpal failed to show that any agreement with the University of

Florida “in all probability would have been completed” if Dr. Potter had not

interfered. Ethan Allen, Inc., 647 So. 2d at 815. The University of Florida’s

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admission was conditioned on the receipt of an acceptable transcript from UM,

which it never received.

       Therefore, the district court properly granted summary judgment to the

Defendants on Sirpal’s tortious interference claim.

                                V.      EQUITABLE TOLLING

       After the magistrate judge entered a judgment in favor of the Defendants on

all of these claims, Sirpal moved to voluntarily dismiss his remaining two claims

without prejudice. In its order granting Sirpal’s motion, the magistrate judge

explained that the dismissal essentially functioned as a dismissal with prejudice

because the statute of limitations had expired on the remaining two claims and he

would not extend or toll the statute of limitations. Sirpal’s final argument on

appeal is that the magistrate judge erred by denying Sirpal’s request to toll the

statute of limitations. 3

       To the extent that the order granting the motion to dismiss without prejudice

addressed whether the statute of limitations could be equitably tolled if Sirpal were


3
  Sirpal also argues that the magistrate judge erred by denying his request to stay the remaining
claims during the pendency of this appeal because the factual allegations underlying the eight
counts on appeal and the two remaining counts were “inextricably linked” and forcing Sirpal to
proceed on the two groups of claims separately would have “doubled both time and effort.” It is
unclear whether the magistrate judge addressed the issue of a stay. Even accepting that the
magistrate judge did deny a stay, Sirpal has not shown that this denial was an abuse of discretion.
See Ortega Trujillo v. Conover & Co. Commc’ns, Inc., 221 F.3d 1262, 1264 n.2 (11th Cir.
2000).
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to later reassert the claims he was seeking to dismiss, the magistrate judge issued

an advisory opinion. See BankWest, Inc. v. Baker, 446 F.3d 1358, 1367 (11th Cir.

2006) (“If we addressed issues that might arise, we would be rendering an advisory

opinion on future conduct and events . . . .”). Article III does not permit courts to

issue advisory opinions. Id. For this reason, we vacate only the portion of the

magistrate judge’s order addressing the issue of statutory tolling on a hypothetical

future lawsuit as an impermissible advisory opinion.


                                 VI.    CONCLUSION

      For these reasons we affirm the magistrate judge’s grant of summary

judgment in favor of the Defendants. We affirm the magistrate judge’s grant of

Sirpal’s motion to dismiss the remaining claims, but vacate the portion of the order

addressing the statute of limitations and equitable tolling.



      AFFIRMED in part, VACATED in part.




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