                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             NOV 27, 2007
                              No. 07-11409                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                D. C. Docket No. 05-01432-CV-ORL-22-JGG

ANESH GUPTA,


                                                            Plaintiff-Appellant,

                                   versus

WALT DISNEY WORLD COMPANY,

                                                           Defendant-Appellee.


                        ________________________

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

                            (November 27, 2007)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Anesh Gupta, an Asian male, appeals pro se the summary judgment entered
in favor of his former employer, Walt Disney World Company, and against

Gupta’s complaint of employment discrimination. See 42 U.S.C. §§ 1981, 2000e-

2(a). Gupta contends that Walt Disney illegally discriminated against him when it

refused to allow Gupta to work as a server at Akershus, a restaurant in the

Norwegian Pavillion of the EPCOT theme park, because he was not “culturally

authentic” to Norway. Gupta also appeals the denial by the district court of

Gupta’s motion to compel discovery without first holding an evidentiary hearing.

We affirm.

                                I. BACKGROUND

      Gupta worked at Walt Disney from May to December 2003 as a participant

in the college intern program. He then worked in a second internship program

from June 2004 to May 2005, when the program ended. During this time, Gupta

worked in various capacities, including as a role hopper and a door host at the

nightclub, Motion.

      In March or April 2005, Gupta worked extra hours as a stocker at Akershus

in the Norway Pavilion at Epcot. The Norway Pavilion is a component of the

World Showcase of Epcot, a permanent international exposition that strives to

provide guests an opportunity to experience and learn about the culture, traditions,

and accomplishments of eleven nations of the world. Many positions in the World



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Showcase are staffed by “Cultural Representatives,” who interact with guests and

share the culture, tradition, language and history of the country they are

representing. Walt Disney requires Cultural Representatives to speak the language

of the country they represent and possess an adequate command of English to

communicate and explain their customs, traditions, and culture to guests based on

the representative’s first-hand experience. According to Walt Disney, as long as an

individual meets these standards, that individual can serve as a Cultural

Representative regardless of their national origin, race, or color. Walt Disney

presented evidence of individuals of “Asian descent” who qualified to work as

Cultural Representatives in the Norway Pavilion because they were culturally

authentic, as well as individuals who are Middle Eastern, Asian, and black who

were Cultural Representatives in the Canada Pavilion.

      Servers at the Norwegian restaurant are required to be Cultural

Representatives. From 2002 to April 2005, Walt Disney employed some

individuals as servers during the “Princess Storybook Breakfast,” which was held

at the Norway Pavilion, who were not culturally authentic to Norway, because the

breakfast was an American meal and was served before the opening of the larger

World Showcase later in the day. In April 2005, Walt Disney changed the

breakfast to an all-day dining experience with a Norwegian theme. Use of



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individuals not culturally authentic to Norway as servers was discontinued, though

non-culturally-authentic individuals continued to work some hours until enough

culturally authentic servers were hired and trained.

      In April or May 2005, Gupta expressed interest in working as a server at the

Norwegian restaurant. Gupta took training classes to become a server, and worked

some hours as a server at the Norwegian restaurant during two weeks in June 2005.

Gupta primarily worked the breakfast shift, but testified that he also worked at least

one lunch shift. On June 26, 2005, Gupta was informed that he could no longer

work as a server at the Norwegian restaurant. James McAndrew, the other non-

culturally-authentic server identified by Gupta, was informed on June 28, 2005,

that he could no longer work as a server at the Norwegian restaurant.

      Gupta brought this action against Walt Disney and alleged employment

discrimination on the basis of race, national origin, and color. At the close of

discovery, Gupta moved to compel Walt Disney to produce the “actual” work

schedules for the Norwegian restaurant. Gupta alleged that the work schedules

produced by Walt Disney were fabricated. The district court denied the motion.

Walt Disney moved for summary judgment, which the district court granted.

Gupta appealed. Walt Disney has moved to strike portions of Gupta’s reply brief.




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                          II. STANDARDS OF REVIEW

      We review a denial of discovery order for abuse of discretion. Moorman v.

UnumProvident Corp., 464 F.3d 1260, 1264 (11th Cir. 2006).

      We review a grant of summary judgment de novo. Wilson v. B/E

Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). Summary judgment is

appropriate “if 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.” Fed. R. Civ. P. 56(c). When reviewing the record,

“we view the evidence in the light most favorable to the non-moving party.”

Wilson, 376 F.3d at 1085.

                                 III. DISCUSSION

      Gupta argues that the district court erred when it entered summary judgment

against his complaint of employment discrimination. Gupta contends that he

presented both direct and circumstantial evidence of discrimination and that Walt

Disney’s explanation about cultural authenticity requirements was created after the

fact to cover illegal discrimination. Gupta also argues that the district court abused

its discretion when it denied his motion to compel additional discovery.

      Before we address Gupta’s arguments, we grant Walt Disney’s motion to



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strike portions of Gupta’s reply brief. The allegations about which Walt Disney

complains were not supported by citation to the record, see 11th Cir. R. 28-1(I),

and the evidence attached to Gupta’s brief was not presented to the district court,

see Selman v. Cobb County Sch. Dist., 449 F.3d 1320, 1332 (11th Cir. 2006).

 A. The District Court Did Not Err When It Granted Summary Judgment In Favor
  of Walt Disney and Against Gupta’s Complaint of Employment Discrimination.

      Gupta’s argument that he presented direct evidence of illegal discrimination

fails. Walt Disney’s explanation that Gupta was not allowed to work at the

Norwegian restaurant because Gupta was not “culturally authentic” is not direct

evidence of illegal discrimination. The evidence established that “cultural

authenticity” did not depend on an individual’s national origin, race, or color, but

was entirely dependent on the ability of an individual to share authentically a

culture.

      Because Gupta does not have direct evidence of discrimination, he must rely

on circumstantial evidence under the burden-shifting framework of McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), and Texas

Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089

(1981). See Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767–68 (11th Cir.

2005). The employee is entitled to an inference of discrimination when he

establishes a prima facie case. Id. “A plaintiff establishes a prima facie case of

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disparate treatment by showing that [he] was a qualified member of a protected

class and was subjected to an adverse employment action in contrast with similarly

situated employees outside the protected class.” Wilson, 376 F.3d at 1087.

      Gupta failed to establish a prima facie case of discrimination for at least two

reasons. First, Gupta did not establish that he was qualified to be a server at the

Norwegian restaurant. Walt Disney required servers at the Norwegian restaurant to

be culturally authentic to Norway. Gupta admits that he has visited Norway for

one to two days and does not have first-hand knowledge of Norwegian culture.

Although individuals not culturally authentic to Norway, including Gupta,

previously worked in the Norwegian restaurant, the evidence established that

Gupta and the other non-culturally-authentic workers worked either during an

American breakfast shift, when cultural authenticity was not required, or worked in

violation of Walt Disney policy. Second, Gupta failed to establish that he was

treated differently from other similarly situated employees. Walt Disney informed

the other non-culturally-authentic server, McAndrew, that he could no longer serve

at the Norwegian restaurant two days after it informed Gupta. “If a plaintiff fails to

show the existence of a similarly situated employee, summary judgment is

appropriate where no other evidence of discrimination is present.” Holifield v.

Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).



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   B. The District Court Did Not Abuse Its Discretion When It Denied Gupta’s
                        Motion To Compel Production.

      Gupta argues that the district court abused its discretion when it denied

Gupta’s motion to compel discovery about the Walt Disney work schedules, which

Gupta alleges were forged, without holding an evidentiary hearing. We disagree.

Gupta provided no support for his allegation that Walt Disney removed his name

from the work schedules produced during discovery. Walt Disney presented

evidence that the records produced were copies of electronically maintained

records, kept in the usual course of business, and were printed off the computer in

the form in which they were maintained. The district court did not abuse its

discretion when it denied Gupta’s motion to compel additional discovery without

holding an evidentiary hearing.

                                  IV. CONCLUSION

      The summary judgment in favor of Walt Disney is

      AFFIRMED.




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