                                                          [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                   FILED
                                                         U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                              No. 05-16462
                                                                May 3, 2006
                          Non-Argument Calendar             THOMAS K. KAHN
                        ________________________                CLERK

                     D. C. Docket No. 02-02695-CV-P-S

MELVIN BURL,


                                                            Plaintiff-Appellant,

                                   versus

ANTHONY J. PRINCIPI,
Department of Veterans Affairs,
KAREN SHAMBLIN, in her
individual capacity,
UNITED STATES OF AMERICA,


                                                         Defendants-Appellees.

                        ________________________

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

                               (May 3, 2006)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
      Melvin Burl appeals pro se the summary judgment in favor of the

Department of Veterans Affairs against his complaint of racial discrimination and

invasion of privacy, and Burl appeals the dismissal of his claims for unlawful

search and seizure and violation of the Administrative Procedure Act. We affirm.

                                 I. BACKGROUND

      Burl, an African-American male, was employed by the Department of

Veterans Affairs as a criminal investigator at the Birmingham Veterans

Administration Medical Center. In August 2001, Karen Shamblin, chief operating

officer for the medical center, audited Burl’s government computer after being

notified that he was using it inappropriately. The audit revealed that Burl had

visited numerous pornographic web sites; his government e-mail account contained

pornographic content; he had inappropriately e-mailed another Department

employee, Gail Harris; and his MSN Hotmail account, which he accessed on the

government computer, contained over 200 pornographic e-mails.

      Department policies forbid the use of government computers for personal

affairs, accessing sexually explicit material, or engaging in activities that are

offensive to fellow employees. VA Directive 6001 provides that Department

employees have no expectation of privacy regarding any activity conducted on

government computers and that use of government computers subjects all the



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information and files maintained or passed through those computers to

management monitoring and recording, with or without cause. In April 2001, Burl

signed a computer access notice, which acknowledged that he had no expectation

of privacy in the use of electronic mail or his computer activities.

      On September 6, 2001, after the audit of Burl’s computer, the Department

sent Burl a proposed removal letter, which listed five bases for Burl’s termination.

Burl then sought psychiatric care, but he told a nurse that he had a gun and

intended to kill several Medical Center employees. On September 20, 2001, the

Department issued a second proposed removal letter, which reiterated the five

bases for termination from the first letter and added, as a sixth basis, the making

violent threats against Medical Center employees. On October 21, 2001, Burl was

terminated.

      Burl filed a five count complaint against the Department in November 2002.

The first three counts, which alleged violation of the Whistleblower Protection Act

and the Fourth Amendment, were dismissed by the district court. Summary

judgment was entered against the remaining two counts, which stated claims of

invasion of privacy and racial discrimination.




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                           II. STANDARD OF REVIEW

      We review a grant of summary judgment de novo, and we construe all facts

in the light most favorable to the non-moving party. Vessels v. Atlanta Indep. Sch.

Sys., 408 F.3d 763, 767 (11th Cir. 2005). We review a grant of a motion to

dismiss de novo, taking the facts alleged in the complaint as true and construing

them in favor of the plaintiff. Williams v. Bd. of Regents of Univ. Sys. of Ga., 441

F.3d 1287, 1295 (11th Cir. 2006).

                                 III. DISCUSSION

      Burl presents four arguments on appeal: (1) the evidence obtained through

the audit of his computer and the seizure of evidence to support his termination

violated his Fourth Amendment rights against unlawful searches and seizures; (2)

the district court erroneously dismissed his claim of invasion of privacy; (3) he

established a prima facie case of race discrimination; and (4) the failure to deliver

to Burl in a timely fashion the evidence file used in his termination violated the

APA and requires reversal of the termination decision of the Department. Each

argument fails. We address each argument in turn.

         A. Burl’s Search and Seizure and Invasion of Privacy Claims Are

                              Preempted by the CSRA.

      Burl alleges that the audit of his computer by the Department was a violation



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of his Fourth Amendment right against unreasonable searches and seizures and an

invasion of his privacy. Although Burl pleaded these constitutional and tort claims

as separate from his employment discrimination claim, he does not argue in his

initial brief that he suffered any injury from the constitutional and tort claims

distinct from his termination. Burl argues that the evidence allegedly taken in

violation of his constitutional and privacy rights should not have been considered

by the district court. Because the constitutional and tort claims are part of Burl’s

employment discrimination claim, they are both preempted by the Civil Service

Reform Act.

      The CSRA is a comprehensive scheme for reviewing personnel actions taken

against federal employees. United States v. Fausto, 484 U.S. 439, 454, 108 S. Ct.

668, 677 (1988). Constitutional claims by federal employees are ordinarily

preempted by the CSRA and must be addressed through the administrative

procedures established by the CSRA. Bush v. Lucas, 462 U.S. 367, 103 S. Ct.

2404 (1983); Lee v. Hughes, 145 F.3d 1272 (11th Cir. 1998). Burl has provided

no reasons, and we cannot discern any, why his claim under the Fourth

Amendment is not preempted by the CSRA. The district court correctly dismissed

this claim as preempted by the CSRA.

      Burl’s invasion of privacy claim also was dismissed by the district court as



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preempted by the CSRA. State law tort claims brought by a federal employee

against a supervisor because of a personnel decision fall under and are preempted

by the CSRA. Broughton v. Courtney, 861 F.2d 639, 642-44 (11th Cir. 1988). It

is irrelevant that the CSRA does not provide a remedy for Burl’s claim. “We infer

that Congress did not mention any [state law tort] remedies because it left no room

for them.” Saul v. United States, 928 F.2d 829, 842 (9th Cir. 1991). The district

court correctly dismissed Burl’s claim of invasion of privacy.

         B. Burl Did Not Establish a Prima Facie Case of Discrimination.

      Regarding his racial discrimination claim, Burl provided no direct evidence

of discrimination so he must rely on circumstantial evidence to prove

discrimination. To establish a prima facie case of race discrimination, Burl must

satisfy four elements: (1) he belongs to a racial minority; (2) he suffered an adverse

employment action; (3) he was treated less favorably than similarly situated

employees outside his racial classification; and (4) he was qualified for the job.

Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). The Department does not

dispute that Burl satisfies the first, second, and fourth factors.

      To satisfy the third factor, Burl asserts that two other Medical Center

employees were caught accessing pornographic material with government

computers but were not terminated. One employee had received two pornographic



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e-mails and another had accessed pornographic web sites on two occasions.

Disparate treatment arguments require comparison with an employee who is

“similarly situated in all relevant respects” and is “nearly identical” to the plaintiff.

Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004).

      Burl’s use of the internet to access inappropriate material was far more

egregious than the two employees he uses for comparison. Burl visited

pornographic web sites several times each day in the three weeks before his

computer was audited. He used his government computer to access his Hotmail

account, which contained over 200 pornographic e-mails. He used government

computers to engage in an intimate relationship with his co-worker, Harris. He

sent and received pornographic e-mails through his government e-mail account.

Unlike the two employees used for comparison, Burl also was a criminal

investigator at the Medical Center, and it was his responsibility to investigate and

prevent the kind of misconduct for which he was terminated. Because Burl was

not similarly situated to the other two employees caught accessing pornographic

material, he cannot establish a prima facie case of discrimination.

        C. Burl Cannot Establish That He Was Prejudiced by the Untimely

                           Delivery of the Evidence Folder.

      Burl also argues that his termination should be set aside because the



                                            7
Department did not provide to him, in a timely manner, the evidence file

containing the evidence the Department used to make its decision regarding his

termination. 5 U.S.C. § 7513(e). This court has the authority under the

Administrative Procedure Act to compel the Department to provide the

information, 5 U.S.C. § 706(1), and set aside the decision of the Department for

failure to observe procedure required by law, 5 U.S.C. § 706(2)(D). Section 706

also requires us to take account of the rule of prejudicial error. It is undisputed that

Burl eventually received the evidence, and he has not established that the alleged

delay in receiving the file prejudiced him in any way. The district court correctly

dismissed this claim.

                                 IV. CONCLUSION

      The summary judgment and dismissal are

      AFFIRMED.




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