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                                                          [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 12-11726
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 1:11-cv-20651-JJO



KENNETH D. HUMPHREY,
Former Customs and Border Protection Officer,


                                                            Plaintiff - Appellant,


                                    versus


JANET NAPOLITANO,
DEPARTMENT OF HOMELAND SECURITY,


                                                           Defendant - Appellee.

                         ________________________

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

                               (April 19, 2013)
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Before CARNES, BARKETT and MARTIN, Circuit Judges.

PER CURIAM:

       Kenneth D. Humphrey, a former Customs and Border Protections Officer,

sued Janet Napolitano, Secretary of the Department of Homeland Security (DHS).

Proceeding pro se, he alleged that he was discriminated against because of his race

and age, in violation of the Civil Rights Act and the Age Discrimination in

Employment Act (ADEA). He also asserts that DHS conspired to interfere with

his civil rights, in violation of the Conspiracy to Obstruct Justice Act. The district

court granted DHS’s motion for summary judgment, finding that Humphrey

neither experienced an adverse employment action nor established that he was

treated differently than similarly-situated employees. The district court also found

that Humphrey’s conspiracy to obstruct justice claim was barred by the

intracorporate conspiracy doctrine, which does not allow for conspiracy allegations

against people working for the same organization.

       Humphrey raises several issues in his pro se appeal.1 He argues that the

district court erred by 1) finding he did not suffer an adverse employment action;

2) concluding that he did not identify similarly-situated employees; and 3)




1
  We liberally interpret pleadings from a pro se litigant. Douglas v. Yates, 535 F.3d 1316, 1320
(11th Cir. 2008).
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determining that government employees who work for the same organization

cannot be sued under the Conspiracy to Obstruct Justice Act.2

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

applying the same legal standard as the district court. Durruthy v. Pastor, 351 F.3d

1080, 1084 (11th Cir. 2003). Summary judgment is proper “when the pleadings,

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

affidavits, if any, show that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter of law.” Id. (quotation

marks omitted). In assessing whether there is no genuine issue as to any material

fact, we “must view all the evidence and all factual inferences reasonably drawn

from the evidence in the light most favorable to the nonmoving party, and must

resolve all reasonable doubts about the facts in favor of the non-movant.” Rioux v.

City of Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008) (quotation marks and

citation omitted). “A genuine issue of material fact exists when a reasonable jury

could return a verdict for the nonmoving party.” Chapter 7 Trustee v. Gate

2
  The district court dismissed Humphrey’s claims against the Equal Employment Opportunity
Commission (EEOC) because “sovereign immunity shields federal agencies from suit.” The
district court also dismissed Humphrey’s retaliation claims against DHS because he did not
exhaust administrative remedies. Humphrey refers to retaliation in his appellate brief while
describing the alleged conspiracy against him, but he does not present any argument contesting
the district court’s dismissal of his retaliation claims against DHS, or his claims against the
EEOC. Humphrey does argue against the dismissal of his EEOC claims in his reply brief.
“While we read briefs filed by pro se litigants liberally, issues not briefed on appeal by a pro se
litigant are deemed abandoned. . . . [and] we do not address arguments raised for the first time in
a pro se litigant’s reply brief.” Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008)
(citations omitted). We will not, therefore, consider these arguments.
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Gourmet, Inc., 683 F.3d 1249, 1254 (11th Cir. 2012) (quotation marks and

citations omitted).

                                      I.

      The undisputed facts, viewed in the light most favorable to Humphrey, show

that he was placed on desk duty during the investigation into incidents occurring

on November 2, 2008 and November 12, 2008 at the Miami International Airport.

On November 2, 2008, Humphrey was checking vehicles entering the airport.

Continental Airlines employees did not want to stop their car, so Humphrey

stopped them and asked for identification. Humphrey detained and threatened to

arrest them.

      Next, on November 12, 2008, Humphrey noticed that a Dade County

employee opened a door “between the international and domestic jet way bridge”

without authorization, so Humphrey removed him from the area. Humphrey took

the Dade County employee’s identification badge, as well as the identification

badge of an American Airlines employee. A Dade County supervisor arrived and

told Humphrey that he did not have the authority to challenge Dade County

employees. Humphrey said he needed to see another supervisor, and a “second

level supervisor showed up.” The police also arrived.

      After these events, Humphrey was accused of “behav[ing] in an

unprofessional manner.” He was put on desk duty while an investigation was


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carried out. Because he was limited to desk duty, Humphrey could not be assigned

the same amount of overtime work, which resulted in less pay. Humphrey was

also unable to bid for his preferred assignment for the upcoming year, because the

bidding process excluded employees under investigation. The investigation

concluded on March 11, 2009, and no action was taken against Humphrey.

Humphrey claims the investigation and his assignment to desk duty were

motivated by age and race discrimination.

                                       II.

      Because Humphrey relies on circumstantial evidence, we apply the burden-

shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.

1817 (1973), to his race discrimination claim. Under the McDonnell Douglas

framework, Humphrey must first make a prima facie case, which generally

requires a showing that: 1) he belongs to a protected class; 2) he was qualified to

do the job; 3) he was subjected to adverse employment action; and 4) and his

employer treated similarly-situated employees outside his class more favorably.

See Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008). Once a plaintiff

makes the prima facie case, “the burden of production shifts to the employer to

articulate a legitimate, nondiscriminatory reason for its actions.” Wilson v. B/E

Aerospace, 376 F.3d 1079, 1087 (11th Cir. 2004).




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       We also apply the McDonnell Douglas framework to Humphrey’s age

discrimination claim. In Gross v. FBL Financial Services, Inc., the Supreme Court

explained that it “has not definitively decided whether the evidentiary framework

of McDonnell Douglas Corp. v. Green utilized in Title VII cases is appropriate in

the ADEA context.” 557 U.S. 167, 175 n.2, 129 S. Ct. 2343, 2349 n.2 (2009)

(citation omitted). However, “[f]ollowing Gross, we have continued to evaluate

ADEA claims based on circumstantial evidence under the McDonnell Douglas

framework.” Sims v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir. 2013). Thus,

Humphrey must make a prima facie showing of age discrimination. He can do so

by showing “that he (1) was a member of the protected age group, (2) was

subjected to adverse employment action, (3) was qualified to do the job, and (4)

was replaced by or otherwise lost a position to a younger individual.” Chapman v.

AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000).

       Humphrey contests the district court’s conclusion that he did not identify

similarly-situated employees of his race or age that DHS treated more favorably. 3

He generally argues that he was “deprived . . . of the legitimate employment

opportunities that were being enjoyed fully by the younger White and Cuban team

members.” However, he does not point to any similarly-situated employees who
3
  Humphrey also contests the district court’s conclusion that he did not experience an adverse
employment action. However, we need not decide this issue because Humphrey failed to
identify any similarly-situated employees outside of his race that DHS treated more favorably,
and neither did he identify a younger employee who replaced him. See Crawford, 529 F.3d at
970; Chapman, 229 F.3d at 1024.
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were of a different race who were treated differently. Nor does he identify any

younger employees that replaced him, filled the position that he desired, or were

otherwise treated more favorably. Humphrey also presents no evidence that his

age was the “but-for” cause of his temporary assignment to desk duty. See Gross,

557 U.S. at 176, 129 S. Ct. at 2350 (“To establish a disparate-treatment claim

under the plain language of the ADEA . . . a plaintiff must prove that age was the

‘but-for’ cause of the employer’s adverse decision.”).

      We require evidence of similarly-situated employees when a plaintiff alleges

discriminatory discipline so we can evaluate “whether the employees are involved

in or accused of the same or similar conduct and are disciplined in different ways.”

Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006). This

helps us to avoid “second-guessing employers’ reasonable decisions and confusing

apples with oranges.” Id. Because Humphrey did not present evidence of

similarly-situated employees, he failed to make a prima facie case of

discrimination.

                                        III.

      Humphrey argues that the intracorporate conspiracy doctrine should not

prevent consideration of his conspiracy claim under 42 U.S.C. § 1985(3). We have

explained that the doctrine of intracorporate conspiracy bars claims arising under §

1985(3) because “it is not possible for a single legal entity consisting of the


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corporation and its agents to conspire with itself.” McAndrew v. Lockheed Martin

Corp., 206 F.3d 1031, 1036 (11th Cir. 2000). 4 “This doctrine has been applied not

only to private corporations but also to public, government entities.” Dickerson v.

Alachua Cnty. Comm’r, 200 F.3d 761, 767 (11th Cir. 2000); see also Denney v.

City of Albany, 247 F.3d 1172, 1191 (11th Cir. 2001) (applying the intracorporate

conspiracy doctrine to bar a § 1985 claim against two city employees); Rehberg v.

Paulk, 611 F.3d 828, 854 (11th Cir. 2010), aff’d, 132 S. Ct. 1497 (2012) (“The

intracorporate conspiracy doctrine bars conspiracy claims against . . . government

actors . . . .”). Because Humphrey’s conspiracy claim is “against actors who are

part of a single, public entity,” we find that his § 1985 claim is barred by the

intracorporate conspiracy doctrine. Dickerson, 200 F.3d at 768–69.

                                            IV.

       For these reasons, we affirm the district court’s grant of summary judgment.

       AFFIRMED.




4
  “We have long recognized an exception to the applicability of the intracorporate conspiracy
doctrine for intracorporate criminal conspiracies arising under 18 U.S.C. § 371 of the federal
criminal code.” McAndrew, 206 F.3d at 1038. Because Humphrey does not allege any criminal
misconduct, we need not address this exception.

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