           Case: 11-11590    Date Filed: 10/11/2012   Page: 1 of 7

                                                          [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 11-11590
                         Non-Argument Calendar
                       ________________________

                   D. C. Docket No. 1:06-cv-00132-WLS

GENE E. CARTER, SR.,
                                                             Plaintiff-Appellant,
                                   versus

SECRETARY OF THE NAVY,
                                                           Defendant-Appellee,

DONALD C. WINTER, et al.,
                                                                     Defendants.
                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                      ________________________

                            ( October 11, 2012)


Before MARCUS, FAY and EDMONDSON, Circuit Judges.



PER CURIAM:

          Gene Carter, Sr., proceeding pro se, appeals the grant of summary
                Case: 11-11590        Date Filed: 10/11/2012       Page: 2 of 7

judgment in favor of the Secretary of the Navy (“the Navy”) in his employment

discrimination suit filed pursuant to Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. § 2000e-16(a). On appeal, Carter argues that he rebutted

the Navy’s legitimate nondiscriminatory reason for the adverse employment act

and successfully showed that discrimination, based on race, sex, and national

origin, was the true motive for the challenged act. He also argues that the district

court abused its discretion in denying his motions for default judgment, as well as

by dismissing the other claims in his amended complaint for failure to exhaust

administrative remedies. No reversible error has been shown; we affirm.1

       Carter filed a complaint against the Secretary of the Navy, alleging failure to

promote, discrimination, and reprisal on the basis of race, sex, and national origin.2

He specifically alleged that his supervisor, Carlos C., had illegally transferred him

to Warehouse 1331 to work as a Tools and Parts Attendant (a lower position) and


   1
    We review de novo the district court’s grant of summary judgment. Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007). And we view the evidence in the light
most favorable to the non-moving party. Id.
   2
     Because this case is a circumstantial evidence case, the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 663
(1973), applies. Under this framework, the plaintiff must first establish a prima facie case, which
creates a presumption of unlawful discrimination against the employee. The employer may then
rebut that presumption with legitimate, non-discriminatory reasons for the adverse employment
acts. The employee must then proffer sufficient evidence to create a genuine issue of material
fact that the defendant’s articulated reasons are pretextual. See Crawford v. Carroll, 529 F.3d
961, 976 (11th Cir. 2008).

                                                2
               Case: 11-11590    Date Filed: 10/11/2012    Page: 3 of 7

then terminated him at the end of his term position. Carter also stated that Carlos

C. slandered his name and reputation during an interview for upward mobility.

Carter, an Asian-Pacific Islander, opined that he was treated differently from other

employees that were not Islanders. He described that his supervisors had made

degrading remarks, ethnic slurs, and insults against him, such as “Yankee, Damn

Yankee, What are you doing here Mr. IBM Man, Flyboy.” On his claim of sex

discrimination, he alleged that one of his supervisors, a woman named C.W., was

“not too fond of men in general, especially a man of intelligence;” he believed this

observation to be true because she was homosexual.

      Briefly stated, the district court concluded that, while Carter had established

a prima facie case that he belonged to a protected class -- as an Asian-Pacific

Islander/Hawaiian -- and that he was qualified for the position at issue, he failed to

rebut the Navy’s legitimate, nondiscriminatory reason for the adverse employment

act: his own evidence showed that his transfer was based on a personal conflict

between himself and his two supervisors, instead of discrimination based on his

race, national origin, or sex.

      Title VII requires that “[a]ll personnel actions affecting employees or

applicants for employment . . . in military departments . . . be made free from any

discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. §

                                          3
              Case: 11-11590     Date Filed: 10/11/2012   Page: 4 of 7

2000e-16(a). The plaintiff bears the burden of proving that the employer

discriminated against him unlawfully. Hinson v. Clinch Cnty., Ga. Bd. of Educ.,

231 F.3d 821, 827 (11th Cir. 2000).

      The district court properly found that Carter established a prima facie case

of race discrimination for his 2001 transfer to Warehouse 1331. Nevertheless, the

Navy articulated a legitimate, nondiscriminatory reason for transferring Carter,

namely, that the warehouse had a labor shortage and several people from various

departments were loaned to the warehouse to fill its need. Carter failed to show

both that the reason was false and that discrimination was the real reason. See St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2752, 125

L.Ed.2d 407 (1993).

      Although Carter insisted that discrimination based on his race, national

origin, and sex was the true reason for the transfer, he presented no evidence other

than his unsupported assertions that this basis was the true one. Carter’s own

deposition testimony, as well as evidence from his coworkers, showed that a

personal conflict between Carter and his two supervisors (C.W. and Carlos C.)

was the motivating factor for the transfer. Based on the record, it appears that

C.W. and Carlos C. treated their subordinates disrespectfully, engaging in name

calling directed at Carter and at least one other employee. Though this behavior

                                          4
                 Case: 11-11590       Date Filed: 10/11/2012        Page: 5 of 7

likely resulted in an unpleasant work environment, it does not show that either

C.W. or Carlos C. was motivated by an unlawful discriminatory animus to transfer

Carter based on his race, national origin, sex, or other protected class. See 42

U.S.C. § 2000e-2(a); St. Mary’s Honor Ctr., 509 U.S. at 515, 113 S.Ct. at 2752.

Carlos C. also transferred a white female to Warehouse 1331 at around the same

time, and Carter speculated that the female’s transfer was based on her own

“dealings” and “complaints” to the supervisors. Carter’s own deposition

testimony and statements before the Equal Employment Opportunity Commission

(“EEOC”) reflect that he also believed that his transfer was based on his

complaints to and confrontations with C.W. and Carlos C. Thus, Carter failed to

show that a reasonable factfinder could conclude that the Navy’s true motivation

for transferring him to Warehouse 1331 was discrimination based on his race,

national origin, or sex.3

       The district court also did not abuse its discretion in denying Carter’s

motions for default judgment against the Navy. See Mitchell v. Brown &


   3
     In his brief on appeal, Carter appears to challenge the district court’s grant of summary
judgment because he unsuccessfully applied for hundreds of positions at the Marine Corps
Logistics Base (“MCLB”), but was not selected for any of those positions, based on
discrimination and retaliatory intent. But these claims were not before the district court at the
time it granted summary judgment; and we will not review them. See Access Now, Inc. v. Sw.
Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (explaining that we will not consider
arguments on appeal that were not fairly presented below).

                                                 5
                Case: 11-11590       Date Filed: 10/11/2012      Page: 6 of 7

Williamson Tobacco Corp., 294 F.3d 1309, 1316-17 (11th Cir. 2002) (a default

judgment should be used sparingly, and it “is a drastic remedy which should be

used only in extreme situations”). For his first motion for default, Carter has not

presented evidence to show that he was prejudiced by the Navy’s alleged

four-month delay in the filing of a response to his original complaint. He waited

until January 2010, more than two years after the November 2007 filing of the

allegedly untimely response, to bring the matter to the district court’s attention.

For his second motion for default judgment, Carter failed to show that the Navy’s

timely responses to his amended complaint prejudiced him by misnaming the

defendant “David” rather than “Donald.”4 In addition, the blame for the misnomer

of the defendant in the style of the case belongs to Carter for filing a complaint

against “David Winter” rather than “Donald Winter” in the first instance.

       Carter’s argument that the district court erred in dismissing the other claims

contained in his amended complaint for failure to exhaust administrative remedies

is without merit. The EEOC only investigated Carter’s claims of race, national

origin, and sex discrimination arising out of his January 2001 transfer to

Warehouse 1331. The district court did err in concluding that it -- because Carter



   4
   The Secretary of the Navy at the time Carter filed his initial complaint was “Donald C.
Winter.”

                                               6
                Case: 11-11590        Date Filed: 10/11/2012       Page: 7 of 7

had failed to exhaust administrative remedies -- lacked subject-matter jurisdiction

over Carter’s claims brought under 42 U.S.C. §§ 1981, 1983, and the Fourteenth

Amendment. See Zipes v. Transworld Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct.

1127, 1132, 71 L.Ed.2d 234 (1982) (holding that the requirement of exhaustion is

not jurisdictional in employment cases). The district court, however, also

dismissed these claims under an alternate theory: Carter failed to state a claim for

relief, pursuant to Fed.R.Civ.P. 12(b)(6), because 42 U.S.C. § 2000e-16 provided

the exclusive judicial remedy for federal employees to present discrimination

claims. See Brown v. G.S.A., 425 U.S. 820, 834, 96 S.Ct. 1961, 1969, 48 L.Ed.2d

402 (1976) (holding that a federal employee’s discrimination claim under 42

U.S.C. § 1981 warranted dismissal because Title VII provides the exclusive

remedy for such claims). As a result, Carter’s other claims were due to be

dismissed because he could not state a claim for relief under Title VII without first

showing exhaustion of administrative remedies. 5

       AFFIRMED.




   5
    We find no merit in Carter’s assertion that the district court abused its discretion by sua
sponte lifting the stay of discovery or ordering Carter to give depositions while the stay was in
place, because the stay already had been lifted when Carter was required to give his depositions.

                                                7
