                                                         [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________  ELEVENTH CIRCUIT
                                                            MAY 18, 2005
                             No. 04-15912                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                    D.C. Docket No. 03-00681-CV-A-N

ELISHA COOLEY,
WILLIE HACKETT, Jr., et al.

                                               Plaintiffs-Appellants,
     versus

GREAT SOUTHERN WOOD
PRESERVING,

                                               Defendant-Appellee,

                      __________________________

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

                              (May 18, 2005)

Before TJOFLAT, DUBINA and FAY, Circuit Judges.

PER CURIAM:
       Plaintiffs-Appellants, Elisha Cooley, William Davis, Michael Stephens,

Willie Hackett, Jr., and Clifford Edgar, all African-American men, appeal through

counsel the district court’s grant of summary judgment, pursuant to Fed.R.Civ.P.

56©), to their current or former employer, Great Southern Wood Preserving Co.

(“Great Southern”), a trucking company, on their claims of disparate treatment

based on race, filed pursuant to Title VII of the Civil Rights Act of 1964 (“Title

VII”), 42 U.S.C. § 2000e-2(a) and 42 U.S.C. § 1981; and their Title VII claims of

retaliation, filed pursuant to 42 U.S.C. § 2000e-3. The plaintiffs argue on appeal

that the district court committed reversible error in (1) striking the plaintiffs’

initial defective complaint; (2) finding waived or granting summary judgment on

the plaintiffs’ claims in their amended complaint; and (3) granting Great

Southern’s motions to strike discovery that either involved testimony from

witnesses that were not disclosed previously, or was produced after the discovery

deadline.1 For the reasons set forth more fully below, we affirm.

Issue 1:       Order striking the plaintiffs’ initial defective complaint

       1
          The district court also concluded that (1) the plaintiffs claims that Great Southern
assigned better paying loads to white drivers, in violation of its seniority policy were time-barred
under 42 U.S.C. § 2000e-5(e)(1); and (2) the plaintiffs had abandoned by failing to address in
their opposition to Great Southern’s motion for summary judgment (i) Cooley’s promotion
claims, (ii) Hackett’s retaliation claim based on his suspension, and (iii) the plaintiffs’ general
claim based on the terms and conditions of employment. However, because the plaintiffs have
not challenged these determinations in their appeal brief, we deem arguments on them
abandoned. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1330 (11th Cir.
2004) (issues not argued in initial brief are deemed abandoned).

                                                 2
      The plaintiffs generally argue that the court erred and “exhibit[ed] an

impermissible hostility to their case” by sua sponte striking their original

complaint. Citing to Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 122 S.Ct. 992,

152 L.Ed.2d 1 (2002), the plaintiffs contend that, in drafting their original

complaint, the satisfied the notice pleading requirements of Fed.R.Civ.P. 8(a).

      Under Fed.R.Civ.P. 8(a)(2), a plaintiff need only assert “a short and plain

statement of the claim showing that [he] is entitled to relief.” Fed.R.Civ.P.

8(a)(2). Moreover, as the plaintiffs assert, the Supreme Court in Swierkiewicz

determined that a complaint asserting employment discrimination under Title VII

need not contain specific facts establishing a prima facie case; it, instead, need

only contain a short statement of the claim showing that the pleader is entitled to

relief. Swierkiewicz, 534 U.S. at 510-11, 122 S.Ct. at 997. The Court explained

that the burden-shifting analysis applicable to Title VII claims involving

circumstantial evidence is an evidentiary standard rather than a pleading standard.

Id. The Court also discussed that “[the] simplified notice pleading standard relies

on liberal discovery rules and summary judgment motions to define disputed facts

and issues and to dispose of unmeritorious claims.” Id. at 512, 122 S.Ct. at 998.

      Nevertheless, we have concluded that the Supreme Court in Swierkiewicz

“did not even remotely suggest that a pleading could survive dismissal when it


                                          3
consisted of only the barest of conclusory allegations without notice of the factual

grounds on which they purport to be based.” Jackson v. BellSouth

Telecommunications, 372 F.3d 1250, 1270-71 (11th Cir. 2004). Indeed,

“[p]leadings must be something more than an ingenious academic exercise in the

conceivable,” and “unsupported conclusions of law or of mixed law and fact are

not sufficient to withstand a dismissal under [Fed.R.Civ.P. 12(b)(6)].” Id. at 1271

(quotations omitted). As part of these minimum pleading requirements, discrete

claims should be plead in separate counts. Magluta v. Samples, 256 F.3d 1282,

1284 (11th Cir. 2001) (citing to Fed.R.Civ.P. 10(b)).

      A plaintiff’s failure to identify his claims with sufficient clarity to enable the

defendant to frame a responsible pleading constitutes “shotgun pleading.” Byrne

v. Nezhat, 261 F.3d 1075, 1129-30 (11th Cir. 2001). “[I]f, in the face of a shotgun

complaint, the defendant does not move the district court to require a more definite

statement, the court, in the exercise of its inherent authority, must intervene sua

sponte and order a repleader.” Id. at 1133.

      Here, the plaintiffs in their original complaint generally asserted that Great

Southern “routinely” treated its white drivers differently than its African-American

drivers, and that Great Southern committed several retaliatory acts against its

African-American drivers. However, as the district court concluded, other than


                                           4
asserting that Great Southern “discriminated against plaintiff[s] in their terms and

conditions of employment based on race in violation of Title VII of the Civil Right

Act, as amended,” the plaintiffs did not identify what adverse employment acts

Great Southern took against each plaintiff and, thus, did not show why they were

entitled to relief. See Fed.R.Civ.P. 8(a)(2). Moreover, the plaintiffs did not state

each claim in a separate count and assert what facts on which they were relying.

See Jackson, 372 F.3d at 1270-71; Magluta, 256 F.3d at1284. Thus, although the

plaintiffs were not required to allege facts establishing a prima facie case for each

of their claims, see Swierkiewicz, 534 U.S. at 510-11, 122 S.Ct. at 997, the

plaintiffs failed to sufficiently identify their claims, and the court was required to

intervene sua sponte and order the plaintiffs to replead their claims, see Byrne, 261

F.3d at 1133.

Issue 2:     Claim of hostile work environment

      The plaintiffs next argue that the court erred in dismissing their claim of

hostile work environment, based on the court’s determination that the plaintiffs

did not raised this claim in their amended complaint. The plaintiffs contend that

they did not identity theories of discrimination in their amended complaint, other

than violations of 42 U.S.C. § 1981 and Title VII retaliation, because they did not

know what evidence would be uncovered during discovery, and because they were


                                           5
not required to reveal each element of their prima facie case. The plaintiffs also

argue that Great Southern would not have been prejudiced by the plaintiffs’ failure

to plead this cause of action because the amended complaint contained factual

allegations, and the plaintiffs uncovered evidence, during discovery, establishing

hostile work environment.

      As discussed in Issue 1, the Supreme Court in Swierkiewicz mandated a

liberal pleading standard for civil complaints under Rule 8(a)(2). Swierkiewicz,

534 U.S. at 510-11, 122 S.Ct. at 997. “This standard[,] however[,] does not afford

plaintiffs with an opportunity to raise new claims at the summary judgment stage.”

Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314 (11th Cir. 2004). We

explained in Gilmour as follows:

      Efficiency and judicial economy require that the liberal pleading
      standard under Swierkiewicz and Rule 8(a) are inapplicable after
      discovery has commenced. At the summary judgment stage, the
      proper procedure for plaintiffs to assert a new claim is to amend the
      complaint in accordance with Fed.R.Civ.P. 15(a). A plaintiff may not
      amend [his] complaint through argument in a brief opposing summary
      judgment.

Id. at 1315. Moreover, although issues not raised in the pleadings may be treated

as if they were properly raised when they either are “tried by express or implied

consent of the parties,” or “are included in a pretrial order,” these exceptions are

not applicable if an opposing party objects to the assertion of such a claim without


                                          6
the filing of a supplemental pleading. Steger v. General Elec. Co., 318 F.3d 1066,

1077 & n.11 (11th Cir. 2003) (citing to Fed.R.Civ.P. 15(b)).

      Here, the plaintiffs did not assert in their amended complaint a claim of

hostile work environment. The plaintiffs also have not contended that they either

sought leave to amend their amended complaint, or attempted to include a claim of

hostile work environment in the pretrial order. Morever, Great Southern explicitly

objected to the plaintiffs raising this claim for the first time in the plaintiffs’ brief

opposing summary judgment. See Steger, 318 F.3d at 1077 & n.11. Thus, the

district court did not err in err in dismissing the plaintiffs’ claim of hostile work

environment. See Gilmour, 382 F.3d at 1314.

      Even if we were to construe the plaintiffs’ amended complaint as raising a

claim of hostile work environment, no genuine issue of material fact existed on

whether the plaintiffs established a prima facie case. A claim of hostile work

environment under Title VII is established on proof that “the workplace is

permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently

severe or pervasive to alter the conditions of the victim’s employment and create

an abusive working environment.” Harris v. Forklift Systems, Inc., 510 U.S. 17,

21, 114 S.Ct. 367, 370, 126 L.Ed.2d 295 (1993) (quotations omitted). Thus, a

plaintiff wishing to establish a hostile work environment claim must show that


                                            7
(1) he belongs to a protected group; (2) he has been subjected to unwelcome

harassment; (3) the harassment was based on a protected characteristic of the

employee; (4) the harassment was “sufficiently severe or pervasive to alter the

terms and conditions of employment and create a discriminatorily abusive working

environment;” and (5) the employer is responsible for such environment under

either a theory of vicarious or direct liability. Miller v. Kenworth of Dothan, Inc.,

277 F.3d 1269, 1275 (11th Cir. 2002) (citing to Mendoza v. Borden, Inc., 195 F.3d

1238, 1245 (11th Cir. 1999) (en banc)).

      The issue whether harassing conduct was “sufficiently severe or pervasive

to alter the terms of conditions of his employment”—under the fourth element of

this prima facie case—involves both an objective and a subjective component.

Miller, 277 F.3d at 1276. The objective severity of harassment should be judged

from the perspective of a reasonable person in the plaintiff’s position, considering

“all of the circumstances.” Mendoza, 195 F.3d at 1246. In determining “objective

severity,” we consider, among other factors, “(1) the frequency of the conduct;

(2) the severity of the conduct; (3) whether the conduct is physically threatening or

humiliating, or a mere offensive utterance; and (4) whether the conduct

unreasonably interferes with the employee’s job performance.” Id.

      Viewing the evidence in the light most favorable to the plaintiffs, the


                                          8
plaintiffs asserted in their opposition brief that the harassing conduct involved

cursing,2 being assigned to inferior older trucks, and being assigned less lucrative

paying loads. The plaintiffs, however, failed to show that a genuine issue of

material fact existed on whether a reasonable person in their position would have

concluded that the alleged harassment was actionable under Title VII. See id.

       Indeed, applying the factors set forth in Mendoza, the plaintiffs failed to

assert that the conduct was physically threatening or humiliating, or that it

interfered with their job performance. The plaintiffs failed to show that any of the

alleged conduct, including the cursing, was so “common” or “severe” that it

created an atmosphere charged with hostility. See Faragher v. City of Boca Raton,

524 U.S. 775, 788, 118 S.Ct. 2275, 2283-84, 141 L.Ed.2d. 612 (1998) (explaining

that “simple teasing, offhand comments, and isolated incidents (unless extremely

serious) will not amount to discriminatory changes in the ‘terms and conditions of

employment,’” and “[t]hese standards for judging hostility are sufficiently

demanding to ensure that Title VII does not become a ‘general civility code’”

(internal quotations and marks omitted)). Moreover, the “severity and


       2
          This cursing allegedly consisted of (1) DeWayne Hayes, the Traffic Manager of Great
Southern’s Mobile plant, telling Hackett, after Hackett refused to take a load, to “[e]ither take
your truck or clean your goddamned truck out—take the load or clean your goddamned truck
out”; (2) general cursing by Bronson Dulabhan, the dispatcher for Great Southern’s Mobile plant,
at Stephens in the workplace; and (3) Dulabhan telling Edgar, after Edgar refused to take an
overnight load, that “I’m your fucking boss, you know. You do what I want you to do . . ..”

                                               9
pervasiveness” of being required to accept certain loads or trucks–even if

true–also was belied by the fact that accepting load and truck assignments was part

of each driver’s job responsibilities at Great Southern. Accordingly, the plaintiffs

failed to show that a genuine issue of material fact existed on whether the alleged

conduct was sufficiently severe or pervasive to amount to a “discriminatory

change in the ‘terms and conditions of employment.’” See Harris, 510 U.S. at 21,

114 S.Ct. at 370.3

Issue 3:       Prima facie case under Title VII

       The plaintiffs generally argue that the court erred in granting summary

judgment on their Title VII claims. In their introductory section, the plaintiffs

contend, without citing to the record, that they suffered adverse employment

actions when they were treated less favorably than white drivers in load

assignments, truck assignments, and discipline, and that they were retaliated

against for exercising their “federally protected rights.” The plaintiffs also argue

that the court erroneously implied in its opinion granting Great Southern summary


       3
          In addition, as Great Southern contends, the claim of hostile work environment was due
to be dismissed because the plaintiffs failed to satisfy Title VII’s statutory prerequisites for this
claim, that is, they conceded that they failed to include it in their charge with the Equal
Employment Opportunity Commission (“E.E.O.C.”). See Gregory v. Georgia Dept. of Human
Resources, 355 F.3d 1277, 1280 (11th Cir. 2004) (although “the scope of an E.E.O.C. complaint
should not be strictly construed,” under the statutory exhaustion requirement, “a plaintiff’s
judicial complaint is limited by the scope of the E.E.O.C. investigation which can reasonably be
expected to grow out of the charge of discrimination”).

                                                 10
judgment that the plaintiffs, in establishing adverse-employment actions, had to

show that their employment was terminated or that they suffered an economic

detriment.

      Furthermore, the plaintiffs assert that the court impermissibly made

credibility determinations and weighed the evidence by (1) determining that white

drivers, Mike Oliveira, Lee Bull, Edward Kirkland, Shelby Jones, and Scott

McMichael, were not proper comparators; and (2) concluding that summary

judgment was appropriate when “the plaintiffs presented numerous other evidence

of discrimination [other than pointing to white comparators].” Finally, the

plaintiffs contend that, in the interest of preserving space, they are incorporating

their opposition to the summary judgment, which contained facts and arguments

showing that the plaintiffs established a prima facie case as to all of their claims.

      As a preliminary matter, to the extent the plaintiffs are seeking to

incorporate arguments from their brief in opposition to summary judgment, an

appellant’s brief on appeal must contain, in relevant part, his “contentions and the

reasons for them, with citations to the authorities and parts of the record on which

the appellant relies,” see Fed.R.App.P. 28(a)(9)(A). In Four Seasons Hotels and

Resorts, B.V. v. Consorcio Barr S.A., 377 F.3d 1164, 1167 n.4 (11th Cir. 2004),

we examined an appeal in which the appellant, in a footnote in its brief, purported


                                          11
to “incorporate [] the [additional] arguments it presented below.” We determined

that the appellant was attempting to (1) bypass the rules governing space

limitations, and (2) “transfer its duty to make arguments to the judges of [this

Court].” Id. Ultimately rejecting the practice of incorporating by reference

arguments made to district courts, we concluded that the appellant had not

properly presented these arguments for review. Id.; see also AAL High Yield

Bond Fund v. Deloitte & Touche LLP, 361 F.3d 1305, 1308 (11th Cir. 2004)

(concluding that one appellant had abandoned its argument by not renewing the

argument on appeal). Because these plaintiffs, similar to the appellants in Four

Seasons Hotel and AAL High Yield Bond Fund, are improperly seeking to

incorporate their earlier arguments, we decline to review any arguments not raised

in the plaintiffs’ appellate brief. See Four Seasons Hotels, 377 F.3d at 1167 n.4;

see also AAL High Yield Bond Fund, 361 F.3d at 1308.

      A court’s order granting summary judgment is reviewed de novo,

“view[ing] all evidence and all factual inferences therefrom in the light most

favorable to the non-moving party.” Miller v. King, 384 F.3d 1248, 1258-59 (11th

Cir. 2004). “Issues of credibility and the weight afforded to certain evidence are

determinations appropriately made by a finder of fact and not a court deciding

summary judgment.” Id. at 1259 (quotation omitted). “Summary judgment is


                                         12
appropriate when ‘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.’” Id. (quotation omitted). To survive a motion for

summary judgment, the nonmoving party must proffer evidence beyond what is

asserted in the pleadings. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct.

2548, 2553, 91 L.E.2d 265 (1986) (citing Fed.R.Civ.P. 56(e)). Where the

nonmoving party has failed “to establish the existence of an element essential to

that party’s case, and on which that party will bear the burden of proof at trial,” no

genuine issue of material fact exists. Id. at 322-23, 106 S.Ct. at 2552.

      To the extent the plaintiffs are arguing that a genuine issue of material fact

existed on their claims of disparate treatment and retaliation, Title VII prohibits

employers from discriminating “against any individual with respect to his

compensation, terms, conditions, or privileges of employment, because of such

individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-

2(a)(1). Furthermore, it is unlawful under Title VII for an employer to retaliate

against an employee “because [the employee] has opposed any practice made an

unlawful employment practice . . . or because he has made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing


                                          13
under this subchapter [of Title VII].” 42 U.S.C. § 2000e-3(a).

       Where direct evidence of discrimination or retaliation is unavailable—as

was the case here—a plaintiff, nevertheless, may present circumstantial evidence

of discrimination sufficient to create a jury question. Silvera v. Orange County

School Bd., 244 F.3d 1253, 1258 (11th Cir. 2001) (Title VII disparate treatment);

Sullivan v. National Railroad Passenger Corp., 170 F.3d 1056, 1059 (11th Cir.

1999) (Title VII retaliation). For claims based on circumstantial evidence, the

plaintiff bears the initial burden of establishing a prima facie case of

discrimination. Silvera, 244 F.3d at 1258. If the plaintiff is successful, the

defendant must “articulate some legitimate, nondiscriminatory reason for the

[adverse employment action].” Id. The plaintiff then may attempt to demonstrate

that the proffered reason was, in fact, merely pretext for the defendant’s acts. Id.4

“The ultimate burden of persuading the trier of fact that the defendant intentionally

discriminated against the plaintiff remains at all times with the plaintiff.” Id.

Moreover, “[i]f the plaintiff does not proffer sufficient evidence to create a

genuine issue of material fact regarding whether each of the defendant’s

articulated reasons is pretextual, the [defendant] is entitled to summary judgment.”


       4
         The Supreme Court set out this three-part burden-shifting framework in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), and
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1093, 67
L.Ed.2d 207 (1981).

                                             14
Chapman v. AI Transport, 229 F.3d 1012, 1024-25 (11th Cir. 2000) (en banc)

(discussing pretext in context of discrimination involving age and disability).

       “A plaintiff establishes a prima facie case of 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 v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th

Cir. 2004). Assuming for purposes of argument that the plaintiffs, in arguing their

claims of disparate treatment, established the first three elements of this prima

facie case, they failed to show that they were treated less favorably than a similarly

situated employees outside of their protected class. “To show that employees are

similarly situated, the plaintiff must show that the ‘employees are similarly

situated in all relevant respects.’” Knight v. Baptist Hospital of Miami, Inc., 330

F.3d 1313, 1316 (11th Cir. 2003) (quotation omitted). Indeed, “the comparator

must be nearly identical to the plaintiff, ‘to prevent courts from second-guessing a

reasonable decision by the employer.” Wilson, 376 F.3d at 1091 (quoting Silvera,

244 F.3d at1259).5

       5
         In examining claims that employees were disciplined in a disparate manner, we have
explained that “it is necessary to consider whether the employees are involved in or accused of
the same or similar conduct and are disciplined in different ways.” See Maynard v. Bd of
Regents of Universities of Fla. Dept. of Educ., 342 F.3d 1281, 1289. Different panels of this
Court, however, have determined that this conduct requires “similar” conduct, see e.g. Jones v.
Gerwins, 874 F.2d 1534, 1540 (11th Cir. 1989), as opposed to “nearly identical” conduct, see e.g.
Maniccia v. Brown, 171 F.3d 1364, 1368-69 (11th Cir. 1999). See Maynard, 342 F.3d at 1290.

                                               15
      Here, the only comparator the plaintiffs identified in their amended

opposition to summary judgment was Oliveira, asserting that Great Southern did

not terminate Oliveira’s employment as quickly as it terminated Hackett’s

employment, based on the same misconduct. However, in determining that

Oliveira was not similarly situated, the court properly considered the undisputed

evidence that Hackett’s employment was terminated because Great Southern

believed that he twice failed to report within 48 hours a speeding ticket and that he

had received two speeding tickets within 12 months. Oliveira, on the other hand,

reported within 48 hours all of the speeding tickets that he received, and his

termination was based solely on his involvement in accidents. Thus, whether we

apply the “similar” or “nearly identical” analysis, Oliveira was not a proper

comparator. See Maynard, 342 F.3d at 1290.

      Even in the absence of evidence showing that a similarly situated, non-

protected employee has been treated differently, a plaintiff may be able to

establish, by circumstantial evidence, a prima facie case of discriminatory animus.

See Jones v. Bessemer Carraway Medical Center, 151 F.3d 1321, 1322-24 (11th

Cir. 1998). Nevertheless, although the plaintiffs summarily argue on appeal that

they presented “numerous other evidence of discrimination,” they have not cited to




                                         16
supporting evidence in the record. Thus, the district court did not err in

concluding that no genuine issue of material fact existed on whether the plaintiffs

established a prima facie case of Title VII disparate treatment.

      To the extent the plaintiffs also were attempting to establish a prima facie

case of Title VII retaliation, to successfully assert such a claim, a plaintiff must

show that (1) he engaged in statutorily protected expression; (2) he suffered an

adverse employment action; and (3) the adverse action was causally related to the

protected expression. Cooper v. Southern Co., 390 F.3d 695, 740 (11th Cir.

2004). To be considered an adverse employment action under Title VII’s anti-

retaliation provision, the action “must either be an ultimate employment decision

or else must ‘meet some threshold level of substantiality.’” Stavropoulos v.

Firestone, 361 F.3d 610, 616-17 (11th Cir. 2004) (citation omitted), cert. denied,

No. 04-1099 (U.S. April 18, 2005). Ultimate employment decisions include

decisions such as termination, failure to hire, or demotion. Id. at 617.

      The only preserved ultimate employment decision to which the plaintiffs

cited in their amended complaint, which was supported by record evidence, was

Great Southern’s termination of Hackett’s employment. However, as discussed

below, the plaintiffs failed to produce anything tending to show that Great

Southern’s non-discriminatory reason for this termination was pretextual.


                                          17
Otherwise, the acts on which the plaintiffs relied, that is, load assignment and

“write-ups,” were not ultimate employment actions. Moreover, the plaintiffs

failed to explain why these acts met “some threshold level of substantiality.” See

id. at 618 (explaining that “not everything that makes an employees unhappy is an

actionable adverse action,” and that an adverse employment action involves

conduct that “alters an employee’s compensation, terms, conditions, or privileges

of employment”); see also Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239

(11th Cir. 2001) (change in “the terms, conditions, or privileges of employment”

must be “serious and material”). Thus, the district court also did not err in

concluding that no genuine issue of material fact existed on whether the plaintiffs,

other than Hackett, successfully alleged a prima facie claim of Title VII

retaliation. See Cooper, 390 F.3d at 740.

Issue 4:     Pretext

      The plaintiffs argue for the first time on appeal that, if Great Southern had

non-discriminatory reasons for taking employment actions, such as considering

several factors when making load assignments, the plaintiffs’ claims, instead,

involved “disparate impact” from such a neutral policy, and the plaintiffs,

therefore, were not required to show intentional discrimination. The plaintiffs also

generally contend that Great Southern “failed to rebut the presumption of


                                         18
retaliation established by the plaintiffs’ prima facie case by producing legitimate,

non-discriminatory reasons worthy of belief for the adverse employment actions to

which the plaintiffs were subjected.” The plaintiffs contend that Hayes’s

credibility was “suspect” because “the earning potential of drivers was greatly

impacted by his subjective decision of what load to assign to whom,” and he stated

in one part of his deposition that both that he and White terminated Hackett’s

employment, but in another part that White terminated it. Finally, the plaintiffs

generally argue that the jury “reasonably [could have] infer[red] that [Great

Southern] [was] dissembling to cover up a discriminatory purpose.”

      Where pretext is an issue, the question the factfinder must answer is

whether the employer’s proffered reasons were “a coverup for a . . . discriminatory

purpose.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361

(11th Cir. 1999) (“we are not in the business of adjudging whether employment

decisions are prudent or fair. Instead, [its] sole concern is whether unlawful

discriminatory animus motivates a challenged employment decision”). The court,

considering all of the evidence, ascertains whether the plaintiff has cast doubt on

the defendant’s proffered nondiscriminatory reasons, sufficient to allow a

reasonable factfinder to determine that these reasons were “not what actually

motivated its conduct.” Silvera, 244 F.3d at 1258. In casting such doubt, the


                                         19
plaintiff may demonstrate “such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s proffered legitimate reasons for

its action that a reasonable factfinder could find [all of those reasons] unworthy of

credence.” Id.

      To the extent Hackett alleged a prima facie case of retaliation and he offers

argument on why Great Southern’s reasons for its acts were pretextual, Great

Southern presented testimony from Robert White, the General Manager of Great

Southern’s plant in Mobile, Alabama, that he decided to terminate Hackett’s

employment based on company safety policy because Hackett had twice failed to

report speeding tickets within 48 hours and had received two speeding tickets

within a 12-month period. Although the plaintiffs, at least in the district court,

challenged the wisdom of this decision, federal courts do not sit as “super-

personnel department[s]” that reexamine entities’ business decisions. See

Chapman, 229 F.3d at 1030. Thus, “if the proffered reason is one that might

motivate a reasonable employer, a plaintiff cannot recast the reason but must meet

it head on and rebut it.” See Wilson, 376 F.3d at 1088.

      Moreover, although the plaintiffs argue that Hayes’s credibility was

“suspect” because he testified inconsistently during his deposition, and although

the identification of inconsistencies in an employer’s testimony can be evidence of


                                          20
pretext, see Tidwell v. Carter Products, 135 F.3d 1422, 1428 (11th Cir. 1998), this

testimony was not inherently inconsistent. Indeed, although Hayes testified that

“Bob White and I terminated Willie Hackett,” Hayes later clarified that both

managers executed the termination, while White, as the General Manger of Great

Southern’s plant in Mobile actually made the termination decision. See Zaben v.

Air Products & Chemicals, Inc., 129 F.3d 1453, 1458-59 (11th Cir. 1997)

(concluding that, although defendant, in explaining its decision to terminate

certain employees, stated both that seniority played no role in the process and that

only employees’ performances were considered, while, on the other hand, stating

that an employee was discharged because he had the least seniority, its reasons

were not necessarily inconsistent).6 Accordingly, we conclude that, to the extent

that the plaintiffs established a prima facie case of disparate treatment or

retaliation, the court properly granted Great Southern summary judgment because

the plaintiffs failed to show that Great Southern’s proffered reasons for taking

employment actions were pretextual.

Issue 5:       Discrimination claim under 42 U.S.C. § 1981


       6
          To the extent the plaintiffs also generally cited to Hayes’s discretion in making
employment decisions, we have explained that “an employer’s use of subjective factors in
making [] decision[s] does not raise a red flag. Certainly nothing in our precedent established
that an employer’s reliance upon legitimate, job-related subjective considerations suggests in its
own right an intent to facilitate discrimination.” See Wilson, 376 F.3d at 1088 (quotation
omitted).

                                                21
      The plaintiffs summarily argue that the court, in granting Great Southern

summary judgment, erred in failing to address their § 1981 claims. However,

outside of citing to § 1981 in their jurisdictional section, the plaintiffs failed to

allege § 1981 claims in their amended complaint. Indeed, the plaintiffs cited

specifically to Title VII in each individually numbered preserved claim in their

amended complaint.

      Nevertheless, even if we were to construe the plaintiffs’ complaint as raising

§ 1981 claims that were based on the same facts to which they cited in asserting

their Title VII discrimination claims, we have concluded that “both of these

statutes, i.e. [§] 1981 and Title VII[,] have the same requirements of proof and use

the same analytical framework.” Shields v. Fort James Corp., 305 F.3d 1280,

1282 (11th Cir. 2002) (quotation and internal marks omitted). Thus, we conclude

that the plaintiffs could not establish prima facie discrimination cases under

§ 1981 for the same reasons as were applicable under Title VII.

      Moreover, to the extent the court dismissed as time barred the plaintiffs’

Title VII claims that Great Southern “assigned better equipment and newer trucks

to white drivers without regard to seniority and rotational policy,” these claims

would have accrued, if at all, in 1998, when Great Southern discontinued

assigning loads based on seniority. Their claims, therefore, still would have been


                                           22
time barred under the four-year statute of limitation applicable for § 1981 claims

of discrimination when they filed their initial complaint in June 2003. See

Cooper, 390 F.3d at 727 n.19 (recognizing that the Supreme Court in Jones v. R.R.

Donnelley & Sons Co., 541 U.S. 369, ___, 124 S.Ct. 1836, 1945, ___ L.Ed.2d.

___ (2004), held that claims under § 1981 were governed by the four-year federal

“catch-all” statute of limitations, but that the plaintiffs waived this argument).

Thus, even if the plaintiffs asserted § 1981 claims in their amended complaint,

Great Southern also was entitled to summary judgment on these claims.

Issue 6:     Order striking discovery

      Finally, the plaintiffs argue that the district court abused its discretion in

granting Great Southern’s motions to strike discovery. The plaintiffs generally

argue that “[t]he law prefers that cases be decided on their merits[,] not upon

procedural missteps.” The plaintiffs also contend that the court should not have

struck the contested affidavits from their coworkers and should have granted the

plaintiffs leave to file their own untimely declarations because (1) this discovery

was filed well in advance of trial; (2) their coworkers’ affidavits were rebuttal

evidence; and (3) the court, in not considering this evidence, failed to view the

evidence in the light most favorable to the plaintiffs.

      “We review evidentiary rulings made by the district court for abuse of


                                          23
discretion and will reverse the district court’s decision only in cases where

substantial prejudice exists.” Hall v. United Ins. Co. of America, 367 F.3d 1255,

1259 (11th Cir. 2004). Indeed, “[t]he district court has a range of options; and so

long as the district court does not commit a clear error in judgment, we will affirm

the district court’s decision.” Young v. City of Palm Bay, Fla., 358 F.3d 859, 863

(11th Cir. 2004).

      To the extent the plaintiffs are challenging the district court’s order granting

Great Southern’s motion to strike the contested affidavits, Fed.R.Civ.P.

26(a)(1)(A) provides:

      Except in categories of proceedings specified in Rule 26(a)(1)(E), or
      to the extent otherwise stipulated or directed by order, a party must,
      without awaiting a discovery request, provide to other parties: (A) the
      name . . . of each individual likely to have discoverable information
      that the disclosing party may use to support its claims or defenses,
      unless solely for impeachment.

Fed.R.Civ.P. 26(a)(1)(A). Parties also must supplement their Rule 26 disclosures

at appropriate intervals. Fed.R.Civ.P. 26(e)(1). Parties who fail to satisfy these

disclosure and supplementation requirements are prohibited, pursuant to

Fed.R.Civ.P. 37(c)(1), from using the undisclosed evidence “at trial, at a hearing,

or on a motion,” unless the failure is harmless. Fed.R.Civ.P. 37(c)(1). In

reviewing for abuse of discretion a court’s exclusion of a non-disclosed witness,

we consider “(1) the importance of the testimony, (2) the reasons for the

                                         24
appellant’s failure to disclose the witness earlier, and (3) the prejudice to the

opposing party if the witness had been allowed to testify.” Bearint ex rel. Bearint

v. Dorel Juvenile Group, Inc., 389 F.3d 1339, 1353 (11th Cir. 2004).

      Here, the plaintiffs neither listed the affiants of the contested affidavits in

their initial disclosures under Rule 26(a), nor attempted to supplement their

disclosures with this information under Rule 26(e). The plaintiffs also failed to

give a reason for these failures, to explain why the exclusion of this evidence was

overly prejudicial to them. Indeed, despite the court’s order striking this evidence,

the court explicitly stated that it considered this evidence in deciding Great

Southern’s motion for summary judgment.

      Furthermore, although the plaintiffs argued that disclosure was unnecessary

because the contested affidavits were impeachment evidence, they failed to show

that this evidence was offered solely for impeachment purposes. See id. (“only

evidence used solely for impeachment is exempt from the Federal Rules’

disclosure requirement”). Thus, the district court did not abuse its discretion in

granting Great Southern’s motion to strike this evidence. See Hall, 367 F.3d at

1259; see also Cooper, 390 F.3d at 728 (“it was within the sound discretion of the

trial judge to sanction plaintiffs for their failure to disclose by enforcing the

unambiguous terms of Rule 37(c)”).


                                           25
      To the extent the plaintiffs also are challenging the court’s denial of their

request to supplement their materials submitted in opposition to summary

judgment with their own declarations, on May 21, 2004, the court (1) extended the

parties’ discovery deadline until June 4, 2004; (2) allowed the plaintiffs until June

7, 2004, to supplement their opposition; (3) directed Great Southern to file any

responses by June 14, 2004; and (4) notified both parties that the motion for

summary judgment would “be taken under submission for determination on that

day, without oral argument.” On June 14, 2001, the court entered an order,

extending the period for filing submissions in support of, or in opposition to,

summary judgment until June 21, 2004. On June 28, 2004, the plaintiffs sought

leave from the court to amend their opposition to summary judgment to include

new declarations by four of the five plaintiffs, but did not explain why they failed

to file these submissions by the court-ordered deadline.

      Indeed, the plaintiffs offered no explanation for why they did not timely file

their own declarations and did not explain why these declarations involve “newly

discovered evidence.” The plaintiffs also did not argue why they would be

prejudiced if the court did not consider this evidence. Moreover, the plaintiffs

have failed to show prejudice because, similar to the contested affidavits, the court

considered these declarations before granting Great Southern summary judgment.


                                         26
Thus, the plaintiffs also have failed to show that the district court abused its

discretion in denying them leave to amend their opposition to include their own

untimely declarations. See Hall, 367 F.3d at 1259; see also Wayne v. Jarvis, 197

F.3d 1098, 1106-07 (11th Cir. 1996) (concluding that district court did not abuse

its discretion in denying the plaintiff leave to depose a witness outside of the

allowable discovery period when the plaintiff failed to explain why he did not

conduct this deposition at an earlier date).

      Accordingly, we conclude that the district court did not err in striking the

plaintiffs’ original defective complaint, did not err in finding waived or granting

summary judgment on the plaintiffs’s claims, and did not abuse its discretion in

granting Great Southern’s motions to strike discovery that either was from

witnesses that were undisclosed previously, or was produced after the discovery

deadline. We, therefore, affirm.

      AFFIRMED.




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