         Case: 12-10515   Date Filed: 01/03/2013   Page: 1 of 9

                                                      [DO NOT PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                  FOR THE ELEVENTH CIRCUIT
                   ________________________

                          No. 12-10515
                      Non-Argument Calendar
                    ________________________

                D.C. Docket No. 0:11-cv-60272-CMA



SHELDON B. ASHMORE,

                                                          Plaintiff-Appellant,

                                versus

SECRETARY, DEPARTMENT OF TRANSPORTATION,

                                                        Defendant-Appellee,

FEDERAL AVIATION ADMINISTRATION,

                                                                  Defendant.

                    ________________________

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

                          (January 3, 2013)
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Before BARKETT, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

       Sheldon Ashmore appeals the denial of his motions to extend, stay, or

reopen discovery, and the grant of summary judgment on his Title VII claim for

race discrimination in favor of the Department of Transportation (“DOT”).1 Hired

as an Aviation Safety Inspector (“ASI”) by the Federal Aviation Administration,

the agency terminated Ashmore allegedly for failing to progress through the

DOT’s On-the-Job Training (“OJT”) program as required, although Ashmore

contends that the agency’s actions in his case were motivated by his race, and that

the other ASIs had fraudulently altered their OJT program documentation.

Ashmore sought more time for discovery in order to gain proof of this fraud,

although he had not propounded any discovery requests during the

court-established discovery period.

       Specifically, Ashmore appeals the district court’s decisions denying his

discovery-related motions, arguing that he had established both good cause and

excusable neglect, and that his motion under Federal Rule of Civil Procedure

56(d) should have been considered. Ashmore also argues on appeal that he


       1
                Although named as a defendant in Ashmore’s original complaint, the Federal
Aviation Administration was not named in his second amended complaint, and, as such, is not a
party to this appeal.

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established a prima facie case of discrimination under Title VII because he was

similarly situated to one coworker, Rafael Figueroa,2 as well as the other ASIs, and

because a supervisor had stated that he was ahead of some of his peers in his

progress to complete OJT tasks. The district court concluded that he was not

similarly situated to Figueroa because: (1) Figueroa had completed substantially

more of the OJT program than Ashmore; and (2) no supervisors had expressed any

disciplinary, capability, or attitude concerns about Figueroa, while supervisors had

disciplined Ashmore and expressed concerns about his job performance.

                                                I.

           We review a district court’s decision to deny an extension of the discovery

deadline or to deny a motion to re-open discovery for an abuse of discretion.

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

2011). The appealing party must demonstrate that a discovery ruling resulted in

substantial harm. Id. at 1307.

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

scheduling order that limits the time to complete discovery. Fed. R. Civ.

P. 16(b)(3)(A). The schedule set forth by the court may only be modified for good



       2
              The parties refer to this person in a variety of ways, including Figueroa, Figuroa,
and Dorta-Figueroa, but we use Figueroa throughout.

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cause and with the court’s consent. Fed. R. Civ. P. 16(b)(4). Additionally, under

Rule 6(b), when an act must be done within a specified time, the court may extend

that time period for good cause. Fed. R. Civ. P. 6(b)(1)(A). To establish good

cause, the party seeking the extension must establish that the schedule could not

be met despite the party’s diligence. Oravec v. Sunny Isles Ventures, L.C., 527

F.3d 1218, 1232 (11th Cir. 2008). We have often held that a district court has not

abused its discretion by holding the litigants to the clear terms of its scheduling

order. See, e.g., Josendis, 662 F.3d at 1307.

      Under Rule 6(b)(1)(B), the court may, for good cause, extend the time

period for filing a motion after the deadline has expired as long as the party failed

to act because of excusable neglect. To determine if there was excusable neglect,

the court considers the following factors: (1) the danger of prejudice to the

nonmovant; (2) the length of the delay and its potential impact on judicial

proceedings; (3) the reason for the delay, including whether it was within the

reasonable control of the movant; and (4) whether the movant acted in good faith.

Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113

S. Ct. 1489, 1498 (1993). We have noted that, in Pioneer, the Supreme Court

accorded primary importance to the absence of prejudice to the nonmoving party

and to the interest of efficient judicial administration. See Cheney v. Anchor Glass


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Container Corp., 71 F.3d 848, 850 (11th Cir. 1996) (holding that the nonmovant

was not prejudiced by the movant’s six-day delay). Even if the district court fails

to consider the Pioneer factors, we may elect to review these factors for the first

time on appeal. See Cheney, 71 F.3d at 850.

      Finally, in response to a summary judgment motion, the court may allow

time for a party to obtain affidavits or declarations or to take discovery if the

nonmovant shows by affidavit or declaration that, for specified reasons, it cannot

present facts essential to justify its opposition. Fed. R. Civ. P. 56(d)(2). The

district court is under no obligation to grant motions under this Rule where they do

not comply with the requirements of Rule 56. See Reflectone, Inc. v. Farrand

Optical Co., Inc., 862 F.2d 841, 844 (11th Cir. 1989).

      Here, Ashmore has not demonstrated that the district court made a clear

error of judgment, applied the incorrect legal standard, or caused him substantial

harm. See Josendis, 662 F.3d at 1307. In July 2011, the district court established

a discovery deadline of October 12, 2011. But as of Ashmore’s filing of his

motion to extend discovery on October 11—one day before the discovery

deadline—Ashmore had not propounded any discovery requests. We cannot

conclude that the district court abused its discretion by denying the motion to

extend discovery after Ashmore’s considerable delay in even beginning the


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discovery process.

      Additionally, the district court did not abuse its discretion when it declined

to reopen the discovery period. As to Rule 56(d), Ashmore did not attach the

affidavit or declaration required by the Rule, and, without such, the district court

was not required to grant Ashmore’s motion. And applying the factors from

Pioneer, Ashmore did not establish that there was excusable neglect to justify the

motion to reopen discovery under Rule 6(b) where, among other things: (1) the

DOT would have been prejudiced by additional discovery because it had already

filed its motion for summary judgment; (2) the interest in judicial economy

weighed against granting the motion; and (3) he presented no valid reason for the

considerable delay.

                                          II.

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

Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005). We view all

evidence and draw all reasonable inferences in favor of the non-moving party. Id.

Summary judgment is appropriate when the movant has shown that there is no

genuine dispute as to any material fact and that he is entitled to judgment as a

matter of law. Fed. R. Civ. P. 56(a). When considering a motion for summary

judgment, the district court does not weigh the evidence to determine the truth of


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the matter, but rather determines only if there is a genuine issue for trial. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510-11

(1986).

      Title VII prohibits an employer from discharging a federal employee, or

otherwise discriminating against him with respect to his employment, on the basis

of race. See 42 U.S.C. § 2000e-16(a). This provision expanded coverage of

Title VII to cover federal employees to the same extent as non-federal employees.

Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1243 (11th Cir. 1998)

(citations omitted).

      For claims of discrimination supported by circumstantial evidence, we use

the three-step burden-shifting framework established in McDonnell-Douglas

Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25 (1973). Bryant v.

Jones, 575 F.3d 1281, 1307-08 (11th Cir. 2009). First, the plaintiff must make out

a prima facie case of employment discrimination. Id. Second, if the plaintiff

establishes a prima facie case, the burden of production shifts to the employer to

provide a legitimate, nondiscriminatory reason for its employment action. Id. at

1308. Third, if the employer provides a nondiscriminatory reason, then the

plaintiff must show that the reason was pretextual. Throughout, the ultimate

burden of persuasion remains with the plaintiff. Id.


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      In order to make out a prima facie case of discriminatory discharge, the

plaintiff may show that he (1) was a member of a protected class, (2) was qualified

for the job, (3) suffered an adverse employment action, and (4) his employer

treated similarly situated employees outside his classification more favorably.

Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). In addressing whether

comparator employees were similarly situated to the plaintiff, we consider whether

the comparators were involved in, or accused of, the same or similar conduct and

disciplined differently. Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999).

      Here, the district court did not err by granting summary judgment to the

DOT, as Ashmore failed to establish a prima facie case of discrimination because

he did not establish that he was similarly situated to another employee who was

treated differently. His argument that all ASIs were similarly situated fails

because he was required to prove that they were similarly situated in all relevant

aspects, not just that they had the same job title and responsibilities. The

statement by Williams that Ashmore was well ahead of his peers in the OJT

program did not establish that he was similar in all relevant aspects to those peers,

and this statement was therefore insufficient to meet Ashmore’s burden. Further,

his argument that he is similarly situated to Figueroa fails because: (1) Figueroa




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completed substantially more of the OJT program than Ashmore;3 and

(2) Ashmore has not presented any evidence that supervisors had reported any

disciplinary, capability, or attitude concerns about Figueroa. By contrast,

Ashmore’s supervisors reported that he was disciplined for misusing a

government-issued credit card, fell asleep during work hours, was unable to

comprehend basic concepts, and generally showed a lack of energy to learn.

Although Ashmore contends that fraud permeated the OJT program, he failed to

provide any proof of the alleged fraud and this conclusory allegation—admittedly

based only on rumor—is an insufficient basis in the record to find that fraud

existed. Accordingly, the district court did not err by granting summary judgment

in favor of the DOT.

      After careful consideration, we affirm.

      AFFIRMED.




      3
             Ashmore completed only 32 of the tasks required by the OJT program while
Figueroa completed 107.

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