                                                        [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                               AUG 30, 2006
                                 No. 06-10867                THOMAS K. KAHN
                             Non-Argument Calendar               CLERK
                           ________________________

                       D. C. Docket No. 04-02714-CV-P-S

JEROME (NMI) BENNETT,


                                                              Plaintiff-Appellant,

                                     versus

CARI M. DOMINGUEZ,
Chairwoman, Equal Employment
Opportunity Commission,

                                                             Defendant-Appellee,

FANNIE THOMAS,
Personnel Officer (Retired),

                                                                      Defendant.

                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                         _________________________

                               (August 30, 2006)
Before MARCUS, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:

       Jerome Bennett appeals, pro se, the district court’s grant of summary

judgment in favor of the Equal Employment Opportunity Commission (“EEOC”)

in his civil action filed pursuant to the Rehabilitation Act, 29 U.S.C. § 701 et seq.

and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq. The

district court properly granted summary judgment to the EEOC on all claims.1

Therefore, we affirm.

                                        I. Background

       On March 3, 1999, Bennett responded to a vacancy announcement from the

EEOC’s Birmingham, Alabama district office seeking applicants for two EEO

investigator positions.2 The announcement noted that the positions were available

under a competitive, merit-promotion process to applicants who were reinstatement

eligibles or from the EEOC district office and federal agencies, and under a

noncompetitive process to individuals who were eligible for appointments under

special hiring authorities such as the Veterans’ Readjustment Act, 38 U.S.C.



       1
         Bennett also raised a claim under the Privacy Act of 1974, 5 U.S.C. § 552a, for the first
time on appeal. Because he failed to raise the claim before the district court, he has waived it.
Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004).
       2
         The record shows that the Birmingham district office ultimately received greater hiring
authority and hired eight new investigators.

                                                 2
§ 4214. At the time of the announcement, federal agencies also had the discretion

to give “noncompetitive appointments to any veteran who has a service-connected

disability of 30% or more.” The announcement informed applicants that they

“d[id] not have to request noncompetitive consideration,” but instructed applicants

seeking to qualify for noncompetitive status to submit documentation verifying

their eligibility. The announcement further notified applicants that “[a]ny

disability-related information provided will be kept confidential in accordance with

law and regulations.”

      Bennett requested that he be considered on a competitive basis as

reinstatement eligible and with a ten-point veterans’ preference and on a

noncompetitive basis under the VRA authority and the 30 percent or more disabled

veterans authority. His application included, inter alia, (1) an October 1998 letter

from the Department of Veterans Affairs (“DVA”) certifying that Bennett is 30

percent or more disabled; (2) Department of Defense Form 214, Certificate of

Release or Discharge from Active Duty, documenting Bennett’s honorable

discharge from the Army and listing “physical disability with severance pay” as the

“narrative reason for separation”; (3) Standard Form 50, Notification of Personnel

Action, showing that Bennett resigned from his position as a Commissary Store

Manager in September 1990 and listing the reason for resignation as “returning to



                                          3
the States for medical [r]easons, to undergo reconstruct[ive] surgery”; (4) a ten-

page narrative in which Bennett discussed his education and experience and their

relevance to the selection criteria noted on the vacancy announcement; and (5) a

voluntary Background Survey Questionnaire from the Office of Personnel

Management, in which Bennett answered yes when asked whether he had a

physical disability.

       The Birmingham district office received 146 applications for the position,

and Fannie Thomas, the district office’s personnel officer, reviewed the

applications to determine whether the applicants met the minimum qualifications

on either a competitive, merit promotion basis or on a noncompetitive basis.

Applications from candidates meeting the minimum qualifications went to one of

two panels charged with making hiring recommendations to Cynthia Pierre, the

EEOC’s District Director with ultimate hiring authority. One panel considered the

competitive applicants and the other panel considered the noncompetitive

applicants. Thomas reviewed Bennett’s application and determined that he was

eligible for selection on a noncompetitive basis but not on a competitive basis.3



       3
          Bennett requested in his application that he be considered on a competitive basis as a
reinstatement eligible. Thomas determined that Bennett was not reinstatement eligible; thus,
Bennett was not considered on a competitive basis. Bennett did not challenge this determination
in the district court or before this court. Therefore, we do not determine whether the EEOC
made the proper determination.

                                               4
Thomas sent applications from Bennett and seven other individuals who met the

minimum qualifications for noncompetitive hiring as VRA and Schedule A

applicants to the applicable recommendation panel.4

         A four member panel of W.D. Files, Murray Gosa, Leon Kennedy, and

Samuel Hall evaluated the applications from Bennett and the seven other Schedule

A and VRA applicants and made recommendations to Pierre. The panel

recommended two of the eight applicants to Pierre but did not recommend Bennett.

Pierre considered only those applicants who received a recommendation from a

panel.

         After receiving notice that he did not receive the investigator position and

unsuccessfully pursuing EEOC administrative remedies, Bennett filed suit in the

U.S. District Court for the Southern District of Georgia against Thomas and Cari

Dominguez, chair of the EEOC. Subsequently, the Southern District of Georgia

transferred venue to the U.S. District Court for the Northern District of Alabama,

and the Northern District of Alabama ordered Bennett to file an amended

complaint. Bennett filed an amended pro se complaint alleging five claims. The

amended complaint named Dominguez as the sole defendant.5


         4
             Schedule A is another special hiring authority for disabled veterans.
         5
        Because Bennett’s claims are against the EEOC and not Dominguez, the nominal
defendant, we refer to the EEOC rather than to Dominguez.

                                                    5
       All five claims centered on the alleged mishandling of disability information

in Bennett’s application for the investigator position. The first claim stated that the

EEOC made an unlawful disclosure of confidential medical disability materials in

violation of 42 U.S.C. §§ 12112(d)(3)(B) and (4)(C) by failing to keep those

materials in a separate folder during the pre-employment process. The second

claim stated that the EEOC violated 42 U.S.C. § 12112(d)(2) by making an

unlawful pre-employment examination of confidential medical disability

information. The third and fourth claims alleged that Bennett suffered disparate

treatment and discrimination in the application process because he was

discriminated against based on his disability, in violation of 42 U.S.C. §§ 12112(a)

and (b)(1). Finally, Bennett claimed that he experienced unlawful segregation as a

job applicant during the selection process, in violation of 42 U.S.C. § 12112(d)(3).6

       After the EEOC answered, Bennett filed a motion for partial summary

judgment. Bennett argued that he was entitled to summary judgment as to (1) the

unlawful disclosure of medical disability documentation, in violation of the

Rehabilitation Act of 1973 and 42 U.S.C. § 12112(d)(4); (2) the unlawful pre-

employment inquiry, in violation of Rehabilitation Act of 1973 and 42 U.S.C.



       6
         Bennett initially asserted a Title VII claim for racial discrimination, but Bennett moved
to withdraw that claim before the case went to summary judgment. The district court granted
Bennett’s motion.

                                                 6
§ 12112(d)(2)(A); and (3) the failure to separate his medical records from other

personnel records during the selection-screening process, in violation of the

regulations promulgated under the ADA, 29 C.F.R. §§ 1614.203(e)(4) and

1630.14(c).

       Bennett supported his summary judgment motion with the documentation

that he attached to his complaint, particularly focusing on the information he

submitted to verify his disability status. Bennett argued that the forms he

submitted that documented his medical disabilities were not submitted voluntarily

because the EEOC required all VRA applicants to provide documentation that

showed they qualified as VRA applicants. Bennett contended that even though the

EEOC could permissibly review his disability information during the screening

process, the EEOC violated federal law when Thomas forwarded the disability

information to the screening panel and when the panel conducted an unlawful pre-

employment inquiry by examining the disability information. According to

Bennett, he and seven other applicants qualified for noncompetitive hiring under

the VRA and Schedule A and passed the initial screening, but none of them was

considered in the second round of the selection process.7


       7
        Bennett also discussed the application of another individual, Manuel R. Valenzuela,
who applied for a noncompetitive appointment based on his disability. Bennett alleged that the
panel made unlawful pre-employment inquiries into Valenzuela’s disability. Contrary to
Bennett’s assertion, however, the EEOC presented documentation that showed that the panel

                                               7
       Bennett attached the following documents in support of his motion: (1) a

response from Pierre to questions by the EEOC’s Complaint Processing and

Compliance Division, in which she stated that she did not review Bennett’s

application, was not unaware that he had applied, and selected applicants based on

experience and education; (2) the Birmingham District Office’s selection panel’s

response to the EEOC’s Complaints Processing and Compliance Division, in

which it stated that the panel members selected candidates who were the most

qualified based on experience and education and that Bennett lacked the prior

related investigative experience that other applicants possessed; (3) Gosa’s

response to Bennett’s interrogatories, in which he stated that he recalled seeing

some documentation about Bennett’s disability but that the documentation did not

denote that Bennett met the ADA’s definition for disabled; (4) Files’s response to

Bennett’s interrogatories, in which he stated that he did not notice any reference to

Bennett’s disability in the application and that he focused on the relevant past job

experience; (5) Kennedy’s response to Bennett’s interrogatories, in which he stated

that he did not recall seeing any information relating to Bennett’s disability; and

(6) the EEOC’s appellate decision affirming the Administrative Law Judge’s

decision to deny Bennett’s claim because he was not disabled within the meaning



selected Valenzuela for consideration.

                                           8
of the ADA, and, moreover, because the EEOC had articulated legitimate,

nondiscriminatory reasons (“LNDR”) for not selecting Bennett and Bennett failed

to show that those reasons were a pretext for discrimination.

      The EEOC responded with its own motion for summary judgment. The

EEOC highlighted that the vacancy announcement listed “ability to communicate

in writing” as one of the four criteria used to evaluate an applicant. In addition to

the information about the hiring process discussed earlier, the EEOC asserted that

although Thomas deemed Bennett eligible as a noncompetitive candidate, the panel

ultimately rejected his application because it contained “numerous and pervasive”

grammatical and spelling errors. Moreover, the EEOC contended that Bennett’s

investigative experience was not as current as that of other candidates. According

to the EEOC, even if Bennett could establish a prima facie case of discrimination,

its two reasons for not hiring him were LNDRs and Bennett could not show that

they were a pretext for discrmination.

      As for Bennett’s claim that the EEOC violated 42 U.S.C. § 12112(d), the

EEOC asserted that this statutory provision did not address the information that the

EEOC required, and, at any rate, Bennett voluntarily submitted the information

about his disability in order to gain an advantage in the application process. The

EEOC claimed that the only information it required was documentation that



                                           9
showed that the applicant met the eligibility requirements of the VRA. Regarding

the alleged violation of § 12112(d)(3)(B), the EEOC argued that this subsection did

not apply to Bennett because the plain language limited the subsection’s reach to

“applicants who have been offered a job” and “existing employees.” The EEOC

contended that Eleventh Circuit precedent holds that information an applicant or

employee voluntarily discloses is not protected under this section of the ADA,

Cash v. Smith, 231 F.3d 1301 (11th Cir. 2000). Moreover, the EEOC argued that

this subsection should not provide a private right of action when, as here, the

plaintiff was not injured by any alleged disclosure. Finally, the EEOC asserted that

Bennett’s claim under § 12112(d) should be dismissed because he failed to exhaust

his administrative remedies as to that claim.

      The EEOC attached several exhibits, including: (1) the vacancy

announcement, which listed “ability to communicate in writing” as one of the four

selection criteria; (2) Bennett’s application, which contained numerous errors such

as run-on sentences, sentence fragments, typographical errors, and lack of subject-

verb agreement; (3) transcripts of the hearing before the EEOC addressing

Bennett’s ADA claims; and (4) a memorandum from the selection panel to Pierre

recommending several candidates for consideration, including two VRA and

Schedule A applicants.



                                          10
      The transcripts from the EEOC hearing included the testimony of several

panel members. In his testimony, Files recounted the errors in the first narrative

paragraph of Bennett’s application and concluded that he would have had problems

with Bennett’s ability to communicate in writing. Gosa testified that Bennett’s

application was disorganized, contained numerous errors, and “jumped out at him”

because of the errors. Bennett responded to the EEOC’s motion by presenting the

same arguments he had presented in his initial motion for summary judgment.

      The district court denied Bennett’s motion for summary judgment and

granted the EEOC’s motion for summary judgment. The court consolidated

Bennett’s pro se complaint into three claims: (1) discrimination based on disability

in violation of the Rehabilitation Act and ADA; (2) a pre-employment disability

inquiry in violation of 42 U.S.C. § 12112(d)(2); and (3) a violation of the

confidentiality provisions of § 12112(d)(3) during the selection process. As for

Bennett’s discrimination claim, the court held that even assuming that Bennett

could establish a prima facie case, the EEOC offered an LNDR and Bennett failed

to show that the LNDR was a pretext for discrimination. The court found that the

record supported the EEOC’s LNDR because the vacancy announcement listed the

“ability to communicate in writing” as one of the four selection criteria and

Bennett’s application was replete with grammatical errors. The court rejected



                                          11
Bennett’s attempt to show pretext by alleging that none of the VRA and Schedule

A applicants was interviewed because the undisputed evidence showed that the

panel recommended two VRA and Schedule A applicants.

      As for Bennett’s claim under § 12112(d)(2), the court first noted its “serious

doubts” that the information required by the EEOC fell within the parameters of

this section and then found that Bennett was not forced to disclose information

related to his disability. The court stated that Bennett chose to seek

noncompetitive status and thereby chose to disclose that he had a disability. The

court noted that our decision in Cash held in similar circumstances that a plaintiff’s

voluntary disclosure of disability information is not governed by § 12112(d)(2).

Finally, the court rejected Bennett’s final claim because it found that § 12112(d)(3)

was inapplicable to Bennett because he was neither a “job applicant to whom an

offer had been made” nor an “employee.” Moreover, the court found that Cash

also dictated that voluntary disclosures were not within the scope of § 12112(d)(3).

Bennett now appeals.

                               II. Standard of Review

      We review “the district court’s grant of summary judgment de novo,

viewing the materials presented and drawing all factual inferences in the light most

favorable to the non-moving party.” D’Angelo v. ConAgra Foods, Inc., 422 F.3d



                                          12
1220, 1225 (11th Cir. 2005) (citation omitted). Summary judgment is proper when

“there is no genuine issue as to any material fact” and “the moving party is entitled

to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “The movant bears the

burden of demonstrating the satisfaction of this standard, by presenting ‘pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any’ that establish the absence of any genuine, material factual

dispute.” Bochese v. Town of Ponce Inlet, 405 F.3d 964, 975 (11th Cir. 2005)

(quoting Fed. R. Civ. P. 56(c)). We construe pro se briefs liberally but will not act

as de facto counsel for a pro se litigant. GJR Invs., Inc. v. County of Escambia,

132 F.3d 1359, 1369 (11th Cir. 1998).

                                    III. Discussion

      On appeal, Bennett argues that the district court erred in concluding that:

(1) the EEOC did not violate the Rehabilitation Act and the ADA by subjecting

Bennett to discrimination based on his disability status; (2) the EEOC did not

violate § 12112(d)(2) when it made a pre-employment inquiry about his disability;

and (3) the EEOC did not violate § 12112(d)(4) when it failed to keep records

containing information about Bennett’s disability separate from the remainder of

his application. Bennett also refers to a claim under the Privacy Act, 5 U.S.C.

§ 552a, but as noted earlier, Bennett has waived any claim related to the Privacy



                                           13
Act.

       “The Rehabilitation Act prohibits federal agencies from discriminating in

employment against individuals with disabilities.” Ellis v. England, 432 F.3d

1321, 1326 (11th Cir. 2005) (citations omitted). When determining liability under

the Rehabilitation Act, we use the same standard we use under the ADA, and cases

interpreting each are precedent for the other. Cash, 231 F.3d at 1305. Because

Bennett primarily discusses the ADA, we refer to the ADA rather than to both acts.

       The ADA provides that “[n]o covered entity shall discriminate against a

qualified individual with a disability because of the disability of such individual in

regard to job application procedures, the hiring, advancement, or discharge of

employees, employee compensation, job training, and other terms, conditions, and

privileges of employment.” 42 U.S.C. § 12112(a). For claims under the ADA, we

apply the familiar McDonnell Douglas burden shifting framework. Durley v.

APAC, Inc., 236 F.3d 651, 657 (11th Cir. 2000) (citing McDonnell Douglas Corp.

v. Green, 411 U.S. 792, 802 (1973)).

       First, the plaintiff must establish a prima facie case under the ADA.

Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir. 2004).

If the plaintiff successfully shows a prima facie case, the burden shifts to the

employer to rebut the presumption of discrimination by producing evidence that it



                                          14
had an LNDR for its action. Id. If the employer proffers an LNDR, the plaintiff

must show that the LNDR is a pretext for discrimination. Id.

      To show pretext, the plaintiff must “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 than

likely motivated the employer or indirectly by showing that the employer’s

proffered explanation is unworthy of credence.” Jackson v. Ala. State Tenure

Comm., 405 F.3d 1276, 1289 (11th Cir. 2005) (quotation and alterations omitted);

Wascura v. City of South Miami, 257 F.3d 1238, 1243 (11th Cir. 2001).

“Conclusory allegations of discrimination, without more, are insufficient to raise

an inference of pretext or intentional discrimination when a defendant has offered

extensive evidence of [LNDRs] for its actions.” Isenbergh v. Knight-Ridder

Newspaper Sales, Inc., 97 F.3d 436, 444 (11th Cir. 1996) (citation and alteration

omitted).

      Even assuming, as the district court and EEOC did, that Bennett presented a

prima facie case, the EEOC provided an LNDR for its decision not to hire Bennett

and Bennett failed to show that the LNDR was a pretext for discrimination. The

EEOC contends that it did not select Bennett because his application demonstrated

that he did not meet at least one of the four selection criteria listed on the vacancy



                                           15
announcement: “the ability to communicate in writing.” Bennett’s application was

replete with typographical errors, run-on sentences, and sentence fragments that

made the application difficult to understand. Bennett responds that the EEOC

discriminated against him, but he fails to offer any evidence that the EEOC’s

LNDR was a pretext for discrimination.8 Therefore, the district court properly

granted summary judgment in favor of the EEOC.

       Next, Bennett argues that the EEOC violated 42 U.S.C. § 12112(d)(2) by

making a pre-employment disclosure of his disability. Title 42 U.S.C.

§ 12112(d)(2) provides:

       (d) Medical examinations and inquiries
             ....
             (2) Preemployment

                     (A) Prohibited examination or inquiry
                     Except as provided in paragraph (3), a covered entity shall not
                     conduct a medical examination or make inquiries of a job
                     applicant as to whether such applicant is an individual with a
                     disability or as to the nature or severity of such disability.

                     (B) Acceptable inquiry
                     A covered entity may make preemployment inquiries into the
                     ability of an applicant to perform job-related functions.

42 U.S.C. § 12112(d)(2)(A)-(B). The EEOC regulations also allow employers to


       8
         To the extent that Bennett argues that the panel’s decision not to recommend any VRA
and Schedule A applicants for the next stage of the selection process is evidence of
discrimination, the record does not support Bennett’s assertion. As noted earlier, the panel
recommend two VRA and Schedule A applicants for the next stage.

                                              16
invite individuals to identify themselves as individuals with disabilities as required

to satisfy the affirmative action requirements of the Rehabilitation Act. 29 C.F.R.

Pt. § 1630, App. (addressing § 1630.14(a)).

       We have not decided and do not decide now whether a plaintiff has a private

right of action under 42 U.S.C. § 12112(d)(2). Even assuming that Bennett has a

private right of action under this sub-section, the sub-section is inapplicable here.

As evidenced by the vacancy announcement and Bennett’s application, the EEOC

never inquired into whether Bennett had a disability or as to the nature or severity

of the disability that qualified Bennett for the VRA program. The only information

about Bennett’s disability came from his voluntary disclosure, which is not

covered by 42 U.S.C. § 12112(d)(2). Therefore, the EEOC did not violate 42

U.S.C. § 12112(d)(2).9

       Finally, Bennett contends that the EEOC violated 42 U.S.C. § 12112(d)(3)

and (4). We do not have any controlling precedent in this circuit dealing with

those subsections, but by their plain language, they do not apply to Bennett.

Subsection (d)(3) applies only to job applicants to whom “an offer of employment

       9
          Despite Bennett’s arguments, Cash does not dictate a different result. Bennett correctly
contends that he and Cash differ because he was an applicant and Cash was an employee. Cash,
231 F.3d at 1303. This distinction is irrelevant, however, when determining whether 42 U.S.C.
§ 12112(d)(3) has been violated. The pertinent inquiry is into whether the disclosure of the
plaintiff’s disability resulted from an impermissible inquiry or medical examination. Id. at 1307.
As in Cash, this case involved a voluntary disclosure of disability information. Id. Therefore,
Cash compels the result we reach here.

                                                17
has been made” and (d)(4) applies only to employees.10 Because, the EEOC never

offered Bennett employment and he never became an employee of the EEOC, these

sub-sections do not apply to him.

       For the foregoing reasons, we affirm the judgment of the district court.

AFFIRMED.




       10
          In pertinent part, 42 U.S.C. § 12112(d)(3) reads: “A covered entity may require a
medical examination after an offer of employment has been made to a job applicant and prior to
the commencement of the employment duties of such applicant . . . .” 42 U.S.C. § 12112(d)(3)
(emphasis added). In pertinent part, 42 U.S.C. § 12112(d)(4)(A) reads: “A covered entity shall
not require a medical examination and shall not make inquiries of an employee as to whether
such employee is an individual with a disability or as to the nature or severity of the disability . .
. .” 42 U.S.C. § (d)(4)(A) (emphasis added).

                                                  18
