                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                     FILED
                       ________________________         U.S. COURT OF APPEALS
                                                          ELEVENTH CIRCUIT
                                                             September 4, 2008
                             No. 08-11438                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                D. C. Docket No. 06-00136-CV-4-RH-WCS

CAESAR WHITE, JR.,


                                                           Plaintiff-Appellant,

                                  versus

DEPARTMENT OF TRANSPORTATION
STATE OF FLORIDA,

                                                          Defendant-Appellee.


                       ________________________

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

                           (September 4, 2008)

Before TJOFLAT, BLACK and FAY, Circuit Judges.

PER CURIAM:
      Caesar White, Jr., an African American proceeding pro se, appeals the

district court’s grant of the State of Florida Department of Transportation’s

(“DOT”) motion for summary judgment on White’s complaint alleging failure to

hire based on his race and color, pursuant to Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e, et. seq., (“Title VII”). For the reasons set forth below,

we affirm.

                                          I.

      In a Title VII complaint, White alleged that he submitted an application to

the DOT’s Motor Carrier Compliance Office (“MCCO”) for a position as a Law

Enforcement Compliance Officer. The MCCO mailed him a “conditional offer of

employment” and a notice to report for polygraph testing. He “passed” the

polygraph test, and the administering officer informed him that he would be

notified shortly of the next step in the hiring process. Approximately one month

later, however, the MCCO’s recruiter contacted White and requested that White

submit a certain document. Although White already had submitted the document

with his application, he complied. Approximately two weeks later, another officer

contacted White and requested the same document. White again complied.

Thereafter, he did not hear anything from the MCCO “for months.” He made

telephone calls, wrote letters, and sent emails to the MCCO for information on the



                                          2
delay in the hiring process, but received no return communication. When the

MCCO extended its conditional offer of employment, it was not aware of White’s

race or color. When White reported for polygraph testing, however, the MCCO

became aware of his race and color and, thereafter, ceased communication.

Accordingly, White filed a charge of discrimination against the MCCO with a state

agency. The MCCO then sent White a letter stating that he was ineligible for the

position he sought, indicating that it had misplaced the original notice of

disqualification and was re-sending a copy, and explaining that White was not

hired because his polygraph test revealed that he was not qualified for the position

in question. White argued that, based on these facts, it was evident that the

MCCO, upon learning of White’s race and color, decided not to hire him and used

“intentional delaying tactics” and “pretext[ual]” reasons to mask its discrimination.

      The DOT filed a motion for summary judgment, pursuant to Fed.R.Civ.P.

56(c), arguing that White could not make a prima facie showing of racial

discrimination because he was not qualified for the position in question and could

not point to a similarly situated applicant outside his protected class who was

treated more favorably. White was not hired because his polygraph test answers

revealed that he had been dismissed from the Mississippi Highway Patrol training

school because “he did not possess the right attitude to be a trooper” and had been



                                          3
disciplined three times by, and ultimately received a court martial for disobeying

lawful orders from, the U.S. Marine Corps. Also, the MCCO previously had not

hired 7 Hispanics, 26 whites, and 2 others because of their work histories, or 1

Hispanic and 2 whites because of their military discipline histories.

      Along with its motion for summary judgment, the DOT submitted, inter alia,

the affidavit of Major Vicki Cutcliffe, the Chief of Law Enforcement Support for

the MCCO. Therein, Cutcliffe stated that her position involved helping to make

hiring decisions for the MCCO.         The MCCO’s hiring process involved the

following steps: (1) the potential employee submitting an initial application, (2) the

MCCO extending a conditional offer of employment, (3) the potential employee

undergoing polygraph testing, and (4) the MCCO reviewing the polygraph test,

with the help of an “Automatic Disqualification List,” and determining wether the

potential employee was qualified.     This process was “strictly followed with all

applicants without exception,” even when a potential employee included

information in his initial application that could disqualify him from MCCO

employment.      This was because the polygraph test could reveal additional

information, not apparent from the initial application, that the MCCO would need

to take into account.

      Cutcliffe also stated that the MCCO’s recruitment office asked White to



                                          4
submit an initial application as part of its qualified minority recruitment efforts. In

White’s initial application, he noted his race and included a photograph of himself.

Thus, the MCCO knew of White’s race and color, and nevertheless sought to

employ him, during the entire hiring process. When White submitted his initial

application, he noted therein details regarding his training school and military work

history, such that the MCCO became aware of these potentially disqualifying

characteristics. The MCCO       nevertheless sent him a conditional-offer letter, in

keeping with protocol. In the letter, White was warned that his actual employment

was contingent on passing to the satisfaction of the MCCO the polygraph test.

After reviewing White’s polygraph test, the MCCO decided not to hire him

because his past disciplinary issues rendered him unqualified for DOT employment

pursuant to the Automatic Disqualification List.

      The DOT further submitted: (1) White’s initial application, which included a

picture of White and in which White indicated that he was “dropped” from the

Mississippi Highway Patrol training school because he did not have the right

attitude to be a state trooper and was disciplined three times and ultimately

honorably discharged from the U.S. Marine Corps; (2) White’s polygraph test,

showing that he indicated that he was accepted into the Mississippi Highway Patrol

training school as part of its minority recruitment efforts, was asked his opinion on



                                          5
the treatment of the black trainees, and was released when his superiors did not like

his truthful answers, and that he was honorably discharged from the U.S. Marine

Corps after being acquitted of disobeying a lawful order, but convicted on “lesser

charges”   related   to   uniform   infractions;   (3)   the   MCCO’s     Automatic

Disqualification List, stating that (a) “[a]pplicants who have received a discharge

from any of the Armed Forces of the United States for unsuitability, unfitness, or

other misconduct reasons under honorable conditions may be evaluated for job

related behavior and may be disqualified where the discharge indicates factors that

may adversely affect job performance,” (b) “[o]ther factors relating to work

history, compliance with law and similar job-related areas may be considered in

evaluating the applicant’s fitness for employment,” and (c) “[d]isciplinary action in

prior employment, the military, or educational institutions for behavior that would

be either a criminal act or other major violation of [DOT] disciplinary standards

will be a basis for evaluation;” (4) a list of law enforcement officers hired by the

MCCO in the year of White’s application, indicating that the MCCO hired 17

whites, 3 Hispanics, and 1 black during this time; and (5) a list of applicants

rejected by the MCCO in the year of White’s application, indicating that the

MCCO rejected 26 whites, 7 Hispanics, 2 others, and 25 blacks because of their

“Work History” and rejected 2 whites and 1 Hispanic because of their “Military



                                         6
Record” during his time.      White filed a cross-motion for summary judgment,

arguing that he was qualified for the position in question and that the MCCO’s

proffered reasons for its hiring decision were pretextual.

      The magistrate recommended granting the DOT’s motion for summary

judgment and denying White’s cross motion for summary judgment.                  The

magistrate reasoned that White’s dismissal from the Mississippi Highway Patrol

training school because he did not have the proper attitude to be a state trooper and

discipline by the U.S. Marine Corps because he disobeyed lawful orders, facts that

White did not dispute, constituted a valid basis for rejecting White’s employment

application.   Accordingly, White was not qualified for the position.      Also, the

record demonstrated that 26 white applicants were rejected based on their work

histories and 2 white applicants were rejected based on their military histories.

Accordingly, White was not treated differently from non-minorities. Therefore,

White could not establish a prima facie case of discrimination, and the question of

whether the MCCO’s proffered reasons for his hiring decisions were pretextual

was moot.      White objected to the report and recommendation and reiterated

previous arguments. The district court conducted a de novo review of the issues

raised by White and accepted and adopted the magistrate’s report and




                                          7
recommendation.1

                                               II.

       We review the district court’s order granting summary judgment de novo.

Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1357 (11th

Cir.1999). Such a grant of summary judgment is appropriate only “where there is

no genuine issue of material fact and the moving party is entitled to judgment as a

matter of law.” Id. at 1358 (citing Fed.R.Civ.P. 56(c)). In determining whether

summary judgment is appropriate, we review the record and draw all reasonable

inferences in the light most favorable to the non-moving party. Id.

       Title VII prohibits employers from discriminating “against any individual

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

because of such individual’s race, color, religion, sex, or national origin.” 42

U.S.C. § 2000e-2(a)(1). In reviewing Title VII claims of racial discrimination

supported by circumstantial evidence, we use the framework established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668

(1973). Under that framework, the plaintiff has the burden of establishing a prima

facie case of racial discrimination. Id. at 802, 93 S.Ct. at 1824. To meet this



       1
          White argues on appeal that the district court committed reversible error in failing to
address his objections to the report and recommendation. This argument is without merit, as the
district court plainly stated that it had conducted a de novo review of the issues raised.

                                                8
initial burden, the plaintiff must show, by a preponderance of the evidence, that:

(1) he belongs to a protected class; (2) he was subjected to an adverse employment

action; (3) his employer treated similarly situated employees outside his

classification more favorably; and (4) he was qualified to do the job. See Holifield

v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (considering racial discrimination).

If the plaintiff successfully establishes a prima facie case, there is a presumption of

discrimination. McDonnell Douglas Corp., 411 U.S. at 802-803, 93 S.Ct. at 1824.

The burden then shifts to the defendant to rebut this presumption by articulating a

legitimate, non-discriminatory reason for the complained-of action. Id. If the

defendant fails to meet this burden, then we must award judgment to the plaintiff

as a matter of law. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509, 113 S.Ct.

2742, 2748, 125 L.Ed.2d 407 (1993). If the defendant meets this burden, then the

burden shifts to the plaintiff to show that the articulated reason was a pretext for

discrimination. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56,

101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981).

                                          III.

      The district court did not err in granting the DOT’s motion for summary

judgment. See Damon, 196 F.3d at 1357. White failed to establish a prima facie

case of racial discrimination. See McDonnell Douglas Corp., 411 U.S. at 802, 93



                                           9
S.Ct. at 1824. The parties do not dispute that White belonged to a protected class

or suffered an adverse employment action. See Holifield, 115 F.3d at 1562.

White did not, however, demonstrate that he was qualified for the position. See id.

The MCCO’s Automatic Disqualification List stated that the MCCO should

consider an applicant’s work history, discharge from the military, and discipline

history in determining if the applicant was qualified for MCCO work. In his initial

application and during his polygraph test, White indicated that he had been

dismissed from the Mississippi Highway Patrol training school because of his

attitude and was disciplined by the U.S. Marine Corps. Given these answers, the

MCCO could have found that White was not qualified for the position in question

under its Automatic Disqualification List. Because White was not qualified for the

position, he could not establish a prima facie case of racial discrimination, and the

issues of whether the MCCO treated similarly situated applicants outside his

protected class more favorably or whether the MCCO’s proffered reason for its

hiring decision was pretextual are moot. See Holifield, 115 F.3d at 1562. Texas

Dep’t of Cmty. Affairs, 450 U.S. at 255-56, 101 S.Ct. at 1094. We note, though,

that, because the MCCO knew of White’s race and color from his initial

application, any argument that it allowed him to proceed only because it believed

him to be white at the time is without merit. Accordingly, the district court did not



                                          10
err in granting the DOT’s motion for summary judgment. See Damon, 196 F.3d at

1357.

        We note that White also argued before the district court, and on appeal, that

the only reason he could not demonstrate that similarly situated applicants outside

his protected class were treated more favorably than him was because the DOT

refused to produce the polygraph tests of previous applicants and the magistrate

refused to compel the DOT to do so. Indeed, White argues on appeal that the

magistrate’s treatment of the issue constituted reversible error. The record

demonstrates that White filed a motion to compel the DOT to produce these

materials. The magistrate initially denied the motion, but, on White’s motion for

reconsideration, ordered the DOT to produce redacted copies of the 124 previously

administered polygraph tests if White paid the costs of redacting and copying by a

certain date. White notified the DOT that he only would pay for copying and

redacting the polygraph tests for those applicants outside his protected class who

ultimately were hired, and sent a money order for this amount. The DOT

responded that the money order was deficient and that it would not produce the

polygraph tests. The magistrate did not abuse his discretion in his treatment of the

motion to compel, as its order was reasonable. See Hinson v. Clinch County,

Georgia Bd. of Educ., 231 F.3d 821, 826 (11th Cir. 2000) (regarding a complaint



                                           11
brought under Title VII and holding that we review denials of a plaintiff’s motion

to compel discovery for abuse of discretion); Holloman v. Mail-Well Corp., 443

F.3d 832, 837 (11th Cir. 2006) (regarding a complaint brought under the Employee

Retirement Income Security Act and holding that “a district court is allowed ‘a

range of choice’” and we “will not second-guess the district court’s actions unless

they reflect a ‘clear error of judgment’”). Also, because the polygraph tests only

would be relevant to showing that similarly situated applicants were treated more

favorably, and this point is moot, as discussed above, any error resulting from the

DOT’s refusal to produce the documents was harmless. Because the district court

did not err in this manner and did not abuse its discretion in granting the DOT’s

motion for summary judgment, we affirm.2 See Damon, 196 F.3d at 1357.

       AFFIRMED.




       2
           White further argued on appeal that the magistrate erred in granting the DOT extra time
to file a statement of disputed facts that it forgot to file with its motion for summary judgment.
Any error committed by the magistrate in doing so also was harmless, as the DOT’s statement of
disputed facts stated simply that the DOT disagreed with White’s statement of the facts.


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