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                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-11612
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 4:16-cv-00945-VEH



BENJAMIN W. PAYNE,

                                             Plaintiff - Appellant,

versus

GOODYEAR TIRE & RUBBER COMPANY (THE),

                                             Defendant - Appellee.

                      ________________________

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

                            (January 16, 2019)

Before JORDAN, ROSENBAUM and JULIE CARNES, Circuit Judges.

PER CURIAM:
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       Benjamin Payne, proceeding pro se, seeks review and reversal of the district

court’s order granting summary judgment in favor of Goodyear Tire & Rubber

Company on his race discrimination claims under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e et seq., and under 42 U.S.C § 1981, and his disability

discrimination claim under the Americans with Disabilities Act, 42 U.S.C. §

12112(a).

       Mr. Payne asserts that the district court abused its discretion in denying his

discovery motions seeking additional documents from Goodyear. Mr. Payne also

argues that the district court erred in granting summary judgment because the

decision to fire him was race-based and his performance was satisfactory. He

contends that Goodyear management discriminated against him on the basis of his

Lupus and related kidney issues, which required him to take frequent bathroom

breaks.

       Goodyear responds that Mr. Payne’s job performance was unsatisfactory, and

that was the only reason for his termination. It argues that he has produced no

evidence of racial discrimination on the part of any member of management, and

that no one involved in the decision to terminate Mr. Payne knew of his alleged

disability.

       For the reasons which follow, we affirm.




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                                          I

      Mr. Payne is an African-American veteran who suffers from Lupus. As a

result of his illness, Mr. Payne experienced kidney failure and received a kidney

transplant in 2012.

      Goodyear hired Mr. Payne on July 13, 2015, on a probationary basis as the

Relief Operator on the Z Calendar Machine. Mr. Payne was medically cleared to

work with no restrictions by a physician at the Veterans Administration, as well as

by nurses at Goodyear. Goodyear terminated Mr. Payne on August 31, 2015, within

the probationary period, after he received two probationary evaluation forms—one

from Jason McWhorter, the area manager, and one from Michael Tucker, the human

resources specialist—both of which contained almost all “unacceptable” ratings.

Mr. Tucker recommended termination for Mr. Payne, and listed the following

reasons for the unacceptable ratings: “failure to wear safety equipment,” “reported

off personal other 08/14/2015,” “heated discussion with DLT—not following

instructions, using cell phone in unauthorized area,” and “not willing to learn.” Mr.

McWhorter’s evaluation form listed several issues with Mr. Payne’s job

performance, namely the inability or lack of willingness to learn, a bad attitude

towards his trainers, and disappearing for long periods at a time.




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                                         A

      In support of his assertion that he experienced discrimination on the basis of

his race, Mr. Payne points to (1) being singled out among the group of other trainee-

probationary hires when he was reprimanded for leaving his work area to pick up a

pizza for the group; (2) being the only employee in his trainee class reprimanded for

not having safety shoes even though one other employee had failed to timely

purchase them; (3) being chastised for asking questions during a tour; (4) failing to

timely receive credit for a day’s work when his time card malfunctioned; (5) having

to learn duties which he felt were outside the scope of the Relief Operator position;

(6) being reprimanded for having improper safety glasses; (6) Mr. McWhorter’s

failing to properly notice his day off; and (7) certain incidents involving hourly

employees Scott New and Steve Stancil.

      Mr. Payne also alleges that he was discriminated against on the basis of his

disabilities when Goodyear terminated him, in part, for his recurrent and “excessive”

bathroom breaks.     He asserts that he was unfairly treated because he was

reprimanded for using non-Goodyear-issued eyewear which had a special tint for

Lupus-related reasons, and because he took time off to go to the hospital, though the

reason he gave for his absences were “personal” rather than medical. Mr. Payne

believes the two people who discriminated against him on the basis of his disability




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were Mr. Stancil and Mr. Tucker, though he conceded he does not know whether

Mr. Tucker actually knew of his medical condition.

                                       B

      The district court’s scheduling order, entered November 1, 2016, directed the

parties to complete discovery no later than May 24, 2017.         Mr. Payne, then

proceeding pro se, later moved to extend the discovery deadline, and the court

granted him an extension through July 24, 2017. In its order, the court warned the

parties that no further extensions would be granted.

      On July 17, 2017, Mr. Payne filed a “motion to terminate sanctions,” in which

he argued that Goodyear had withheld valuable evidence. In response, Goodyear

moved to quash a subpoena to produce records, and opposed Mr. Payne’s motion

because it was vague and because company officials had timely and appropriately

responded to his document requests. Before the district court ruled on his motion,

but after the discovery deadline, Mr. Payne filed a second “motion to terminate

sanctions,” arguing that Goodyear had withheld valuable evidence which would

prove his disability and his knowledge of the position—the latter presumably

intended to show that his job performance was satisfactory.

      The district court quashed Mr. Payne’s subpoena, finding it untimely and

procedurally improper under Federal Rule of Civil Procedure 34. The district court

also denied without prejudice his July 17 “motion to terminate sanctions” because it


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was too vaguely worded. It did, however, grant Mr. Payne an opportunity to file a

second motion, explaining that the motion was “denied without prejudice to [his]

right to file a new [motion] that more particularly describes his claim of Goodyear’s

noncompliance with the discovery rules[,]” and ordered him to attach the specific

discovery request as to which Goodyear was purportedly withholding information,

a copy of Goodyear’s corresponding response, and the request to which Mr. Payne

claimed Goodyear had not timely responded. The district court also explicitly

directed Mr. Payne to explain why the withheld information was relevant to his

claims, and how he was prejudiced by any late response. The deadline to comply

with the order and file a new discovery motion was August 21, 2017.

      On August 15, 2017, Mr. Payne filed a one-paragraph “motion to shorten

response time to produce documents,” attaching numerous discovery requests and

responses. The district court denied his motion for failure to comply with its earlier

order. Subsequently, on August 28, 2017, Mr. Payne filed a motion to compel,

which the district court denied as untimely because he had previously failed to

comply with the court’s earlier order setting the August 21 deadline.

      Both parties then moved for summary judgment. Goodyear argued that Mr.

Payne could not make out a prima facie case of race discrimination because (1) his

poor performance clearly indicated that he was not qualified; (2) he could not

identify any other non-African-American employees with similar “unacceptable”


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ratings who received more favorable treatment; and (3) he was replaced by an

African-American employee.        Goodyear also argued that Mr. Payne’s poor

performance provided a legitimate, non-discriminatory reason for firing him, and

Mr. Payne could not show that reason was pretextual.

      With respect to the disability discrimination claim, Goodyear argued that Mr.

Payne had similarly failed to establish a prima facie case because there (1) was no

evidence Mr. Payne was actually “disabled” under the ADA’s definition; (2) he was

medically cleared to work with no restrictions; (3) he admitted he was physically

able to perform the job; and (4) none of the relevant decision makers knew about his

medical condition or regarded him as disabled. Goodyear asserted that Mr. Payne’s

poor performance was a legitimate, non-discriminatory, and non-pretextual reason

for his firing. In connection with its motion, Goodyear filed a 97-point statement of

undisputed facts with citations to the record, and several affidavits and deposition

transcripts.

                                         II

      “This Court reviews de novo a district court’s grant of summary judgment,

applying the same legal standards that bound the district court, and viewing all facts

and any reasonable inferences therefrom in the light most favorable to the non-

moving party.” Evans v. McClain of Ga., Inc., 131 F.3d 957, 961 (11th Cir. 1997)

(citations omitted). “All reasonable inferences arising from the undisputed facts


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should be made in favor of the nonmovant, but an inference based on speculation

and conjecture is not reasonable.” Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723

F.3d 1287, 1294 (11th Cir. 2013). Summary judgment should be granted only “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).

      We review a district court’s discovery rulings for an abuse of discretion. See

Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir.

2011). “Discretion means the district court has a range of choice, and that its

decision will not be disturbed as long as it stays within that range and is not

influenced by any mistake of law.” Id. (internal quotation marks and citation

omitted).

      Under Federal Rule of Civil Procedure 16(b), the district court must issue a

scheduling order that sets the time to complete discovery. See Fed. R. Civ. P.

16(b)(3)(A). Although a district court has the authority to grant extensions of time

to complete discovery for good cause, it is not obligated to do so. See Josendis, 662

F.3d at 1307. And a district court does not abuse its discretion by holding parties to

the “clear terms of its scheduling orders.” Id. (citation omitted).

                                          III

      We first address Mr. Payne’s arguments regarding discovery, and then turn to

the summary judgment issues.


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                                          A

      Mr. Payne argues that the district court, in denying his discovery motions,

improperly allowed Goodyear to withhold and destroy important information

proving that he was a qualified employee who was well ahead of his training

schedule. Construing these arguments as a challenge to the denial of his discovery

motions, we decline to reverse on this ground. Mr. Payne was first given an

extension of the time to complete discovery when his then-counsel withdrew, from

May 24 to July 24. In spite of the district court’s warning that no further extensions

would be granted, Mr. Payne served a subpoena on Goodyear on the date discovery

closed, at 5:10 p.m. Apart from being procedurally improper, the subpoena would

have allowed Goodyear thirty days past the discovery deadline to respond. See Fed.

R. Civ. P. 45(a)(1)(A)(iii) and (34)(b)(2)(A).

      As to the timely-filed discovery motion, the district court noted it was vaguely

worded and gave Mr. Payne the opportunity to re-file, going so far as to provide

explicit instructions on how to cure the motion’s deficiencies. Mr. Payne failed to

do so. Because the district court has both the authority and the obligation to ensure

its scheduling and procedural orders are closely followed, we conclude it was not an

abuse of discretion to deny Mr. Payne’s motion.




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                                          B

       Under 42 U.S.C. § 1981, “[a]ll persons . . . shall have the same right . . . to

make and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a).

In the employment context, § 1981 prohibits race discrimination. See Standard v.

A.B.E.L. Servs. Inc., 161 F.3d 1318, 1330–34 (11th Cir. 1998). Title VII similarly

“forbids discrimination on the basis of . . . race . . . in a wide range of employment

practices, including hiring, discharge, and promotion.” Batey v. Stone, 24 F.3d 1330,

1333 (11th Cir. 1994) (citation omitted). We analyze Title VII and § 1981 claims

using the same evidentiary requirements and analytical framework. See Standard,

161 F.3d at 1330.

      A plaintiff may support his § 1981 or Title VII claim through circumstantial

evidence that raises a “reasonable inference” that the employer discriminated against

the plaintiff. Smith v. Lockheed Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011).

Where there is no direct evidence of discrimination, we use the framework set forth

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), for single-motive

claims.

      To make out a prima facie case of race discrimination under McDonnell

Douglas, a plaintiff must show: “(1) he belongs to a racial minority; (2) he was

subjected to adverse job action; (3) his employer treated similarly situated

employees outside his classification more favorably; and (4) he was qualified to do


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the job.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (citations omitted).

This is not an onerous burden; “it requires only that the plaintiff establish facts

adequate to permit an inference of discrimination.” Id. (citations omitted). But “[i]f

a plaintiff fails to show the existence of a similarly situated employee, summary

judgment is appropriate where no other evidence of discrimination is present.” Id.

(citation omitted).

      Once an employee has established a prima facie case of discrimination, “the

employer must articulate a legitimate, nondiscriminatory reason for the adverse

employment action. . . . [If the employer does so,] the employee has to show that

the proffered reason is mere pretext.” Quigg v. Thomas Cty. Sch. Dist., 814 F.3d

1227, 1237 (11th Cir. 2016) (citations omitted).

      The district court correctly ruled that Mr. Payne was unable to establish a

prima facie case of discrimination. Mr. Payne could not identify a single similarly-

situated comparator; that is, he could not point to a non-African-American

probationary employee who received similar “unacceptable” ratings in evaluations

and remained in Goodyear’s employ. Conversely, Goodyear proffered evidence of

two Caucasian employees who received “unacceptable” ratings and were fired. This

alone would be sufficient to conclude Mr. Payne has not met his burden, given the

absence of other evidence of discrimination. See Holifield, 115 F.3d at 1562. But

we also note that, of his eight-person probationary employee class, six of the trainees


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were African-American and all of them successfully completed the training. Mr.

Payne, moreover, was eventually replaced by an African-American candidate.

      The incidents that Mr. Payne argues are evidence of race discrimination were

either based on conjecture or were unrelated to management’s decision to fire him.

For example, he argues that he was singled out during orientation after picking up

pizza from the gate; however, this incident was unrelated to his ultimate termination.

The same is true of the incident involving his failure to timely purchase safety shoes.

According to Mr. Payne, though another probationary employee had also failed to

purchase the shoes by the deadline, he was the only employee sent home. But

management asserts, and Mr. Payne has not challenged, that no one in management

knew of another hire who failed to purchase the shoes in time and this incident was

not the cause of his firing.

      Mr. Payne also pointed to Scott New referring to him as “boy” as evidence of

race discrimination. While we agree with Mr. Payne that calling a grown man “boy”

is certainly offensive and inappropriate, it is undisputed that Mr. New was an hourly

employee and was not involved in the decision to fire Mr. Payne. We have

previously held that a non-decisionmaker employee’s discriminatory remarks are

“not probative of a discriminatory intent behind [an employee’s] termination.”

Standard, 161 F.3d at 1330. Mr. Payne, therefore, failed to establish a prima facie

case of discrimination sufficient to proceed on his claim.


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      Further, Goodyear’s reason for firing Mr. Payne—poor performance—has not

been challenged with evidence. Mr. Payne was unable to dispute the facts as set

forth in Goodyear’s affidavits. For example, Mr. McWhorter stated that he observed

Mr. Payne sitting when there were problems on the Z Calendar machine instead of

helping and learning to fix the problem. Mr. McWhorter also said that he observed

Mr. Payne socializing with other employees in another department instead of

training on the Z Calendar machine. He observed that Mr. Payne had trouble

learning the job duties of the Relief Operator position and that he did not see any

improvement after talking to Mr. Payne about his performance. He also witnessed

Mr. Payne appearing to hide in the creel room and found Mr. Payne sleeping more

than once. Mr. Payne did not proffer evidence to dispute his “improper” cellphone

use or his sleeping on the job. Mr. Payne simply did not provide sufficient evidence

to create a genuine issue as to his performance.

      Mr. Payne offers conclusory assertions that he knew his job well, but an

unsubstantiated and subjective belief that his performance was acceptable is

insufficient to create a genuine issue of fact. See Holifield, 115 F.3d at 1565.

Though Mr. Payne asserts that two employees, Allen Blackwell and Kenneth Miller,

support his assertion that he was doing well, this is again insufficient. Neither of

them gave the positive assessment of his work that Mr. Payne argues they did.

Additionally, those statements were specific to Mr. Payne’s performance at the mill


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and wind-up stations. Accordingly, even accepting them as true, they are insufficient

to create a dispute as to Mr. Payne’s overall performance as a Relief Operator.

       Therefore, we affirm the district court’s order with respect to Mr. Payne’s race

discrimination claims.

                                           C

       Under the ADA, employer discrimination “against a qualified individual on

the basis of a disability” is prohibited as to any of the “terms, conditions, [or]

privileges of employment.” See 42 U.S.C. § 12112(a). As with race discrimination

claims, we apply the familiar McDonnell Douglas framework. To establish a prima

facie case for disability discrimination “a plaintiff must show that, at the time of the

adverse employment action, he had a disability, he was a qualified individual, and

he was subjected to unlawful discrimination because of his disability.” See Mazzeo

v. Color Resolutions Int’l, LLC, 746 F.3d 1264, 1268 (11th Cir. 2014). “A qualified

individual’ is ‘an individual who, with or without reasonable accommodation, can

perform the essential functions of the employment position that such individual

holds or desires.’” Id. at 1267–68.

       We conclude that Mr. Payne proffered no evidence to show that Goodyear

management knew of his disability, that he cannot identify a comparator, and he

does not create a genuine issue with respect to his performance. We affirm the

district court as to this claim as well.


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      “Discrimination is about actual knowledge, and real intent, not constructive

knowledge and assumed intent.” Silvera v. Orange Cty. Sch. Bd., 244 F.3d 1253,

1262 (11th Cir. 2001). “[A]n employee cannot be fired “because of” a disability

unless the decisionmaker has actual knowledge of the disability.” Cordoba v.

Dillard’s, Inc., 419 F.3d 1169, 1185 (11th Cir. 2005). And “[v]ague or conclusory

statements revealing an unspecified capacity are not sufficient to put an employer

on notice of its obligations under the ADA.” See Morisky v. Broward Cty., 80 F.3d

445, 448 (11th Cir. 1996).

      Here, the district court properly concluded that the decision makers did not

have actual knowledge of Mr. Payne’s disability, and thus Mr. Payne was not

discriminated against on the basis of his disability. Mr. Payne failed to provide any

support for his assertions that the decision makers—Mr. Tucker, Mr. McWhorter,

Mr. Mobley, and Mr. Christopher Payne—knew of his disability. In fact, Mr. Payne

admitted not knowing whether management was aware that he had Lupus, though

he assumed Mr. Tucker must have because it was “in his file.” Mr. Payne asserted

that Mr. McWhorter was aware of Mr. Payne’s disability because, on one occasion,

he asked Mr. McWhorter for a day off to go to the VA hospital. Mr. Payne

acknowledged, however, that he did not explain to Mr. McWhorter the reason for

his visit to the hospital. Such a statement does not create a disputed issue as to

whether Mr. McWhorter knew of Mr. Payne’s disability.


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      Mr. Payne asserts that his self-identification form put management on notice

of his disability. But Mr. Payne failed to show who in management would have

reviewed the form, and thus had knowledge of his disability. Further, the self-

identification form merely contains a checkmark next to the box “[i]ndividual with

a disability” without any further details about his condition.        The undisputed

evidence, however, clearly indicated he was medically cleared to work with no

restrictions, and he admitted multiple times at his deposition that neither his Lupus

nor his kidney failure interfered with his ability to do the Relief Operator job.

      Finally, as noted above, Mr. Payne has failed to contest the substantial

evidence of his poor performance, or to identify a similarly-situated comparator

without a disability who was not fired after performing as poorly as Mr. Payne. We

therefore affirm the grant of summary judgment as to the ADA claim.

                                          IV

      Even when viewing all facts and any reasonable inferences therefrom in the

light most favorable to him, Mr. Payne failed to establish a prima facie case of race

and disability discrimination under Title VII and the ADA. We therefore affirm the

district court’s order granting summary judgment to Goodyear.

      AFFIRMED.




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