                                                        [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                             No. 11-10819                FEBRUARY 28, 2012
                         Non-Argument Calendar               JOHN LEY
                       ________________________               CLERK


                 D.C. Docket No. 6:09-cv-00750-GAP-GJK



PRINCE D. BROWN,

                                                         Plaintiff - Appellant,

                                  versus

SCHOOL BOARD OF ORANGE COUNTY, FLORIDA,

                                                        Defendant - Appellee.



                      ________________________

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

                           (February 28, 2012)

Before DUBINA, Chief Judge, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:
       Appellant Prince Brown, an African-American, appeals the district court’s

grant of defendant Orange County School Board’s (“OCSB”) motion for summary

judgment as to his complaint alleging racial discrimination, brought under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a) (“Title VII”), and 42

U.S.C. §§ 1981 and 1983, and retaliation in violation of his First Amendment free

speech rights, brought under 42 U.S.C. § 1983. Brown complained of adverse

employment actions when OCSB, his former employer, suspended him twice

without pay and then failed to renew his employment contract.1 On appeal, Brown

argues that: (1) the district court erred in finding that he failed to establish a prima

facie case of racial discrimination because he could not identify a similarly

situated employee; (2) the district court erred in determining that his right to free

speech was not violated because, when he complained to OCSB’s Employee

Relations Department about OCSB’s hazardous material practices, he was not

speaking as a citizen on a matter of public concern. Each of these issues is

addressed separately below.




       1
         While Brown also complained initially that his white co-workers received better
treatment, in that they were given offices and access to county vehicles, because he does not raise
these claims on appeal, he has abandoned them. See Greenberg v. BellSouth Telecomms., Inc.,
498 F.3d 1258, 1259 n.1 (11th Cir. 2007) (per curiam) (holding that, because the plaintiff did not
object to the district court’s disposition of his Rehabilitation Act claim on appeal, the claim had
been abandoned).

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      We review a district court’s grant of summary judgment de novo. Weeks v.

Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). Summary judgment is

proper if the evidence 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 movant bears the burden of establishing the absence of a dispute over a

material fact. Reynolds v. Bridgestone/Firestone, Inc., 989 F.2d 465, 469 (11th

Cir. 1993). The evidence and factual inferences from the evidence are construed

favorably to the party opposing summary judgment. Id.

I. Racial Discrimination Claims

      Brown argues that summary judgment was inappropriate as to his

discrimination claims under Title VII and §§ 1981 and 1983 because there was an

issue of material fact as to whether two of his fellow employees were valid

comparators, as they had the same job title, and all three were involved with

misconduct regarding the handling of hazardous materials at OCSB facilities.

      Title VII makes it illegal for an employer “to discriminate against any

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

employment, because of such individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1).

Under 42 U.S.C. § 1981, all citizens shall have the same right to “make and

enforce contracts” without the impediment of racial discrimination. Claims

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against state actors under § 1981 must be brought pursuant to 42 U.S.C. § 1983.

Butts v. Cnty. of Volusia, 222 F.3d 891, 892 (11th Cir. 2000). Title VII and

§ 1981 have the same requirements of proof and utilize the same analytical

framework. Brown v. Amer. Honda Motor Co., 939 F.2d 946, 949 (11th Cir.

1991).

      Under Title VII, a plaintiff bears “the ultimate burden of proving

discriminatory treatment by a preponderance of the evidence.” Crawford v.

Carroll, 529 F.3d 961, 975 (11th Cir. 2008) (internal quotation marks and citation

omitted). A plaintiff may establish a claim of illegal disparate treatment through

either direct or circumstantial evidence. Id. at 975-76. Where, as here, a party

seeks to establish discrimination through circumstantial evidence, we evaluate the

claim under the framework set forth in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 93 S. Ct. 1817 (1973). See id. Under this framework, the plaintiff bears

the threshold burden of establishing a prima facie case of discrimination. Wilson

v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004). The elements of a

prima facie case and the manner of establishing those elements are not fixed, but

will vary depending on the situation. Id. In general, a plaintiff establishes a prima

facie case of race discrimination by showing that: (1) he is a member of a racial

minority; (2) he suffered an adverse employment action; (3) the employer treated

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similarly situated employees outside his racial minority more favorably; and (4) he

was qualified for his employment. Holifield v. Reno, 115 F.3d 1555, 1562 (11th

Cir. 1997).

      “Evidence that similarly situated employees are disciplined more leniently is

admissible to support a disparate treatment claim when the plaintiff has

established that the co-employees are in fact similarly situated.” Anderson v.

WBMG-42, 253 F.3d 561, 564 (11th Cir. 2001). To be an adequate comparator,

the preferentially treated individual from outside plaintiff’s protected class must

be similarly situated to the plaintiff in all relevant respects. Holifield, 115 F.3d at

1562. If this is not the case, “the different application of workplace rules does not

constitute illegal discrimination.” Lathem v. Dep’t of Children & Youth Servs.,

172 F.3d 786, 793 (11th Cir. 1999). We have stated that “[t]he relevant inquiry is

not whether the employees hold the same job titles, but whether the employer

subjected them to different employment policies.” Id. When an individual proves

that he suffered an adverse employment action while his comparator did not,

although they both violated the same work rule, “this raises an inference that the

rule was discriminatorily applied.” Id. (citation omitted). In addition, we require

“that the quantity and quality of the comparator’s misconduct be nearly identical

to prevent courts from second-guessing employers’ reasonable decisions and

                                           5
confusing apples with oranges.” Maniccia v. Brown, 171 F.3d 1364, 1368 (11th

Cir. 1999).

      Here, we conclude from the record that the district court correctly

determined that Brown could not establish a prima facie case of racial

discrimination because he could not identify a similarly situated employee. OCSB

provided evidence establishing that Brown had a different area of responsibility

from those employees he sought to establish as comparators. Moreover, OCSB

provided evidence to establish that Brown suffered adverse employment action

due to an investigation into his area of responsibility. Employees with different

areas of responsibility were not similarly situated to Brown in “all relevant

respects,” see Holifield, 115 F.3d at 1562, and their conduct cannot be considered

“nearly identical” to that of Brown, see Maniccia, 171 F.3d at 1368. Accordingly,

we affirm the district court’s grant of summary judgment with respect to Brown’s

claims of racial discrimination under Title VII and §§ 1981 and 1983.

II. First Amendment claim

      Next, Brown argues that the district court erred in concluding that OCSB

did not violate his First Amendment right to free speech. Specifically, Brown

argues that he spoke in his capacity as a citizen involving a matter of public

concern: the deliberate mishandling of hazardous materials on public school

                                          6
campuses.

      The government may not discharge an employee on a basis that infringes the

employee’s constitutionally protected speech interest. Bryson v. City of Waycross,

888 F.2d 1562, 1565 (11th Cir. 1989). However, a public employee’s speech is

entitled to protection only when the employee spoke as a citizen on a matter of

public concern. Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S. Ct. 1951, 1958

(2006). Claims by a public employee alleging retaliation in violation of the First

Amendment can be raised pursuant to 42 U.S.C. § 1983. See, e.g., Randall v.

Scott, 610 F.3d 701, 703 (11th Cir. 2010).

      We have applied a multi-stage analysis to cases involving a public

employee’s free speech rights. Brochu v. City of Riviera Beach, 304 F.3d 1144,

1157 (11th Cir. 2002). First, we examine “whether the employee’s speech may be

‘fairly characterized as constituting speech on a matter of public concern.’” Id.

(quoting Rankin v. McPherson, 483 U.S. 378, 384, 107 S. Ct. 2891, 2897 (1987)).

This involves analyzing the content, form, and context of the speech. Brochu, 304

F.3d at 1157. If this requirement is met, we then apply a balancing test, weighing

the interests of the employee against the interests of the public employer. Id. The

first two steps are questions of law. The inquiry ends here unless the first two

steps are satisfied. Id.

                                          7
      In order to determine whether the speech is on a matter of public concern,

we must determine whether the speech was made primarily in the employee’s role

as a citizen or as an employee. Battle v. Bd. of Regents for Ga., 468 F.3d 755, 760

(11th Cir. 2006) (per curiam). When a public employee speaks pursuant to his

“official duties,” the employee is not speaking as a citizen, and the speech will not

be protected by the First Amendment. Id. The practical inquiry asks whether the

speech “owes its existence to [the] employee’s professional responsibilities.”

Abdur-Rahman v. Walker, 567 F.3d 1278, 1283 (11th Cir. 2009) (citing Garcetti,

547 U.S. at 421, 126 S. Ct. at 1960). Relevant, but nondispositive factors in this

inquiry include an employee’s job description, whether the speech occurred at the

workplace, and whether the speech concerns the subject matter of the employee’s

job. Abdur-Rahman, 567 F.3d at 1282-83. We have not previously allowed

employees to obtain constitutional protection for statements that owe their

existence to the employee’s performance of his official responsibilities, even if he

was not required to make the speech as a part of his official duties. Id. at 1286.

      Here, we conclude from the record that the district court did not err in

determining that Brown’s speech at issue was not protected by the First

Amendment. Brown’s speech concerned the storage and handling of hazardous

materials and dangers encountered during the performance of his job and within

                                          8
his job responsibilities. In addition, Brown’s speech occurred in the workplace,

through OCSB’s Employee Relations Department, rather than in a public forum,

another fact indicating that he was not speaking as a citizen on a matter of public

concern. Because Brown cannot establish that he was speaking on a matter of

public concern, the inquiry ends here. See Brochu, 304 F.3d at 1157.

Accordingly, we affirm the district court’s determination that OCSB did not

violate Brown’s First Amendment right to free speech.

                                    Conclusion

      For the aforementioned reasons, we affirm the district court’s grant of

summary judgment in favor of OCSB.

      AFFIRMED.




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