              Case: 19-11671    Date Filed: 03/13/2020   Page: 1 of 12



                                                             [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 19-11671
                             Non-Argument Calendar
                           ________________________

                      D.C. Docket No. 2:16-cv-01843-KOB

ERIC BROWN,

                                                               Plaintiff - Appellant,

                                      versus

JEFFERSON COUNTY SHERIFF'S DEPARTMENT, et al.,

                                                                         Defendants,

MARK PETTWAY,
in his official capacity as Sheriff of Jefferson County, Alabama,

                                                              Defendant - Appellee.

                           ________________________

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

                                 (March 13, 2020)

Before WILLIAM PRYOR, ROSENBAUM, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Eric Brown, a deputy sheriff with the Jefferson County Sheriff’s Office

(“Sheriff’s Office”), appeals the district court’s grant of summary judgment in favor

of Mark Pettway, the Sheriff of Jefferson County (“Sheriff”), on his claim of race

discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”).1 After

careful review, we affirm the district court.

                                           I.

      Brown, an African-American man, has worked as a deputy sheriff for the

Sheriff’s Office since 2002. He was in the patrol division at the time of the events

relevant to this case.

      In 2013, Brown, along with several other parties, purchased a 1969 Chevrolet

Camaro for nearly $80,000. Brown also signed a purchase agreement for a 1967

Ford Mustang for $43,000.

      Drug Enforcement Agency (“DEA”) agents seized both cars in October 2013.

The government then filed a civil forfeiture action in April 2014, alleging that the

cars were used to launder illicit drug money. The DEA publicly identified Brown

as a deputy sheriff under investigation for drug-related money-laundering crimes.

      On the same day as the DEA’s public announcement of its active

investigation, April 10, 2014, the Sheriff placed Brown on administrative leave with


      1
        Brown also alleged a claim of age discrimination under the Age Discrimination in
Employment Act (“ADEA”). The district court dismissed the ADEA claim on May 5, 2017, and
Brown does not challenge that ruling on appeal.
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pay. On June 12, 2014, with the DEA investigation still ongoing, the Sheriff placed

Brown on administrative leave without pay. Brown remained on administrative

leave without pay until June 11, 2015. Personnel rules prohibited the Sheriff from

keeping Brown on administrative leave without pay for longer than one year.

      Brown returned to work on June 12, 2015, with the DEA investigation still

ongoing. Upon his return, the Sheriff involuntarily transferred Brown from the

patrol division to the corrections division and placed him under several

administrative restrictions. He was not permitted to take a patrol car home, to wear

a uniform outside the correctional facility, or to make any arrests or perform any

duties outside the correctional facility.

      The Sheriff claimed that he transferred Brown and placed him under

administrative restrictions because he “was concerned that the on-ongoing federal

investigation and on-going civil forfeiture action . . . would taint any arrest Deputy

Brown had to make and any testimony he had to give concerning such an arrest.”

Randy Christian, the Chief Deputy, submitted an affidavit elaborating that the patrol

division involved making arrests and having to testify in court, which could be

tainted by the unresolved federal proceedings. Likewise, if Brown were driving a

police vehicle or wearing his uniform outside the jail, according to Christian, the

public would expect him to potentially make an arrest, and, again, the unresolved

federal proceedings could taint the arrest and any testimony.


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      Once the federal investigations ended, the Sheriff lifted the administrative

restrictions and permitted Brown to transfer to the patrol division at the next opening.

      After receiving his right-to-sue letter, Brown filed a counseled federal lawsuit

in November 2016 under Title VII. In Count One of the operative amended

complaint, he alleged that “[o]n June 11, 2015, Defendant discriminated against

Plaintiff . . . [because of his race] when Defendant involuntarily reassigned the

Plaintiff to the Corrections Division with restrictions.” He did not identify any other

alleged discriminatory conduct in Count One.

      The Sheriff filed a motion for summary judgment, which the district court

granted. In relevant part, the district court concluded that (a) Brown’s case was

limited to his involuntary transfer and administrative restrictions, despite his efforts

at summary judgment to challenge his placement on administrative leave; (b) the

administrative restrictions, but not the involuntary transfer, constituted an “adverse

employment action” that was actionable under Title VII; and (c) the Sheriff’s

proffered reason for imposing the administrative restrictions was not pretextual.

Brown now appeals, challenging each of these conclusions.

                                          II.

      We first address the district court’s decision to limit Brown’s claim to his

involuntary transfer and administrative restrictions. A complaint must contain “a

short and plain statement of the claim showing that the pleader is entitled to relief,”


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Fed. R. Civ. P. 8(a), “in order to give the defendant fair notice of what the . . . claim

is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (quotation marks omitted).

      “Despite the liberal pleading standard for civil complaints, plaintiffs may not

raise new claims at the summary judgment stage.” White v. Beltram Edge Tool

Supply, Inc., 789 F.3d 1188, 1200 (11th Cir. 2015) (quotation marks omitted). The

proper procedure for plaintiffs to assert a new claim is to amend the complaint in

accordance with Rule 15, Fed. R. Civ. P. Gilmour v. Gates, McDonald & Co., 382

F.3d 1312, 1315 (11th Cir. 2004). “A plaintiff may not amend her complaint through

argument in a brief opposing summary judgment.” Id.

      Here, the district court properly refused to consider any claim based on

Brown’s placement on administrative leave. Although the amended complaint

contains facts relating to administrative leave, they were not incorporated in Count

One, which alleged race discrimination. The only discriminatory conduct alleged in

Count One took place “[o]n June 11, 2015, . . . when Defendant involuntarily

reassigned the Plaintiff to the Corrections Division with restrictions.” As a result,

Brown’s complaint failed to provide fair notice to the Sheriff that Brown intended

to challenge any other conduct as discriminatory. Moreover, Brown did not seek to

amend the complaint and instead raised the new claim in opposition to summary

judgment. Because “plaintiffs may not raise new claims at the summary judgment


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stage,” White, 789 F.3d at 1200, the district court properly declined to consider

Brown’s new claim based on his placement on administrative leave.

                                         III.

      We next consider whether the district court erred in granting summary

judgment to the Sheriff. We review that decision de novo, viewing the record and

drawing all reasonable inferences in favor of the nonmoving party. Boyle v. City of

Pell City, 866 F.3d 1280, 1288 (11th Cir. 2017). Summary judgment is appropriate

if “the movant shows that 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).

      The district court’s function at summary judgment is to determine “whether

there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

249 (1986). Summary judgment should not be granted if “there is sufficient

evidence favoring the nonmoving party for a jury to return a verdict for that party.”

Id. at 249. But if the evidence presented by the nonmoving party is “merely

colorable” or not “significantly probative,” summary judgment may be granted. Id.

at 249–50; see Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (“A mere

‘scintilla’ of evidence supporting the opposing party’s position will not suffice.”).

      Under Title VII, it is unlawful for an employer to “discriminate against any

individual with respect to his compensation, terms, conditions, or privileges of

employment, because of [his] race.” 42 U.S.C. § 2000e-2(a)(1). In evaluating


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claims under Title VII, we generally apply the burden-shifting framework set out in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), under which the plaintiff

must first establish a prima facie case of discrimination.2 Lewis v. City of Union

City, Ga., 918 F.3d 1213, 1220 (11th Cir. 2019) (en banc).

       To establish a prima facie case, the plaintiff must show: (1) he was a member

of a protected group; (2) he was qualified for the position; (3) he suffered an “adverse

employment action”; and (4) the employer treated similarly situated employees

outsider his class more favorably. Id. at 1220–21. If a plaintiff successfully

establishes a prima facie case, the burden shifts to the employer to articulate a

legitimate, nondiscriminatory reason for its action. Id. at 1221. If the employer

meets that burden, the plaintiff then has the “opportunity to demonstrate that the

proffered reason was not the true reason for the employment decision,” an obligation

that “merges with the ultimate burden of persuading the [factfinder] that []he has

been the victim of intentional discrimination.” Texas Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 256 (1981).

                                                A.

       Brown disputes the district court’s conclusion that his involuntary transfer to

the corrections division was not an actionable “adverse employment action.”


       2
           The McDonnell Douglas framework is not the only way to prove a claim of
discrimination, see Lewis v. City of Union City, Ga., 918 F.3d 1213, 1220 n.6 (11th Cir. 2019), but
the parties present their arguments solely under McDonnell Douglas.
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      “Not all conduct by an employer negatively affecting an employee constitutes

adverse employment action.” Davis v. Town of Lake Park, 245 F.3d 1232, 1238

(11th Cir. 2001). “An employment action is considered ‘adverse’ only if it results

in some tangible, negative effect on the plaintiff’s employment.” Lucas v. W.W.

Grainger, Inc., 257 F.3d 1249, 1261 (11th Cir. 2001). The “employee must show a

serious and material change in the terms, conditions, or privileges of employment .

. . as viewed by a reasonable person in the circumstances.” Davis, 245 F.3d at 1239;

Doe v. Dekalb Cty. Sch. Dist., 145 F.3d 1441, 1448 (11th Cir. 1998) (the plaintiff

“must demonstrate that a reasonable person in his position would view the

employment action in question as adverse”). “[A] transfer to a different position can

be ‘adverse’ if it involves a reduction in pay, prestige or responsibility.” Hinson v.

Clinch Cty., Ga. Bd. of Educ., 231 F.3d 821, 829 (11th Cir. 2000).

      Here, the district court did not err when it determined that Brown’s transfer to

the corrections division was not an adverse employment action because the transfer

itself did not result in a “serious and material change in the terms, conditions, or

privileges” of his employment. Davis, 245 F.3d at 1238. There was no material

change in pay. In fact, the evidence showed that Brown earned more salary in

corrections than he had in patrol. Brown claims that he lost his seniority for patrol

and was required to undergo a month of training once he returned to patrol. But the

evidence fails to show with any specificity that a reasonable person in his situation


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would view these minor consequences as a “serious and material” change in

“prestige or responsibility.” See Hinson, 231 F.3d at 829; Doe, 145 F.3d at 1448.

      Brown also invokes the administrative restrictions he was placed under, but

the district court found that these restrictions were actionable separate from his

transfer to corrections. In any case, to the extent that the transfer and restrictions

were intertwined, the Sheriff proffered essentially the same legitimate,

nondiscrimination reason for both decisions: keeping Brown from having to make

an arrest and potentially testify. So even if we assume that the transfer was an

adverse employment action, our analysis of that decision will be identical to our

analysis of the decision to impose administrative restrictions. For that reason, any

error by the district court in concluding that the transfer was not an adverse

employment action is harmless. We consider both decisions below.

                                                B.

      Brown maintains that he demonstrated that the Sheriff’s proffered reason for

transferring him and placing him under administrative restrictions was pretextual by

showing “a severe discrepancy between his treatment pending the investigation and

that of the white deputy investigated for rape.” Brown asserts that the Sheriff’s

rationale for his transfer and restrictions would also apply to that white deputy, but

the deputy was not subject to any restrictions during the investigation. 3


      3
          Brown’s briefing on appeal does not address any of the other comparators he relied on in
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       A plaintiff may support a showing a pretext with evidence that the employer

treated valid comparators outside the plaintiff’s protected class better than the

plaintiff. Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1280 (11th Cir. 2008). A

valid comparator must be “similarly situated in all material respects” to the plaintiff.

Lewis, 918 F.3d at 1224. Ordinarily, a “similarly situated comparator” will “have

engaged in the same basic conduct (or misconduct) as the plaintiff”; “have been

subject to the same employment policy, guideline, or rule as the plaintiff”’;

“ordinarily (although not invariably) have been under the jurisdiction of the same

supervisor as the plaintiff”; and “share the plaintiff’s employment or disciplinary

history.” Id. at 1227–28. In short, “a valid comparison will turn not on formal labels,

but rather on substantive likeness.” Id. at 1228. Nevertheless, “[a]n employer is

well within its rights to accord different treatment to employees who are differently

situated in ‘material respects.’” Id.

       Here, Brown failed to show that the Sheriff’s proffered non-discriminatory

reason for transferring him and placing him under administrative restrictions was not

the true reason for those decisions. First, we conclude that the white deputy

investigated for rape was not similarly situated in all “material” respects. The record

shows that the Sheriff did not place any restrictions on a white deputy while he was



the district court, so we conclude that he has abandoned any reliance on these comparators. See
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014) (issues not raised on
appeal are abandoned).
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investigated by an outside law-enforcement agency for a one-month period, after

which no charges were brought. In contrast, at the time Brown was transferred and

placed under administrative restrictions, the investigation had been ongoing for more

than a year with no indication of when or how it would end. And unlike in Brown’s

situation, there is no evidence that the white deputy was publicly connected to the

crime by the investigating agency, let alone a federal agency like the DEA. These

differences prevent any meaningful comparison between the treatment of Brown and

the white deputy.

      Second, even assuming the white deputy was similarly situated, summary

judgment was still appropriate because Brown’s pretext evidence was not

“significantly probative.” Anderson, 477 U.S. at 249; see Walker, 911 F.2d at 1577

(“A mere ‘scintilla’ of evidence supporting the opposing party’s position will not

suffice.”). Brown does not dispute the district court’s statement that the Sheriff

“provided three examples of deputies outside Mr. Brown’s protected class who

received similar or identical administrative restrictions when they were under active

investigation, either internally or otherwise.” That, in turn, significantly diminishes

the probative value of Brown’s comparator evidence. And Brown does not identify

any other evidence indicating that the Sheriff’s explanation of its decisions was

untruthful. On the record as a whole, we agree with the district court that no

reasonable jury could conclude from the single and aberrant instance of differential


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treatment that the Sheriff’s explanation was unworthy of credence and that Brown’s

race was the true reason for the conduct. See Burdine, 450 U.S. at 256.

      For these reasons, we affirm the grant of summary judgment against Brown.

      AFFIRMED.




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