              Case: 15-10013     Date Filed: 08/13/2015    Page: 1 of 9


                                                               [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 15-10013
                             Non-Argument Calendar
                           ________________________

                       D.C. Docket No. 1:12-cv-04030-CC

BRIAN E. WALKER,

                                                                  Plaintiff-Appellant,

                                       versus

FULTON COUNTY SCHOOL DISTRICT,
a.k.a. Fulton County Schools,

                                                                Defendant-Appellee.
                           ________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                         ________________________


                                 (August 13, 2015)

Before HULL, MARCUS, and WILLIAM PRYOR, Circuit Judges.

PER CURIAM:

      Plaintiff Brian Walker appeals: (1) the district court’s dismissal of his

retaliation claim against defendant Fulton County School District (the “School
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District”), brought under Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C.

§ 2000e-3(a); and (2) the district court’s grant of summary judgment to the School

District on his Title VII race-based wage discrimination claim, brought under 42

U.S.C. § 2000e-2(a)(1). After careful review, we affirm the challenged district

orders.

                                I. BACKGROUND

      Because we write for the parties, we assume familiarity with the underlying

facts of the case and recite only what is necessary to resolve this appeal.

      On November 19, 2012, plaintiff Walker pro se filed suit against the School

District. Plaintiff Walker alleged that the District discriminated against him on the

basis of his age (1) by failing to provide him with supplemental pay for teaching an

additional orchestra class and (2) by providing this supplement to other teachers.

Separately, plaintiff Walker alleged that the District provided false information to

the Georgia Professional Standards Commission (“GPSC”), which prevented

Walker from renewing his teaching license.

      On April 15, 2013, plaintiff Walker, through counsel, filed an amended

complaint. On June 20, 2013, the district court struck the amended complaint as a

“quintessential shotgun pleading” and gave plaintiff Walker twenty-one days to

file a second amended complaint.




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       On July 12, 2013, plaintiff Walker filed his second amended complaint,

alleging race-based wage discrimination and retaliation in violation of Title VII, as

well as sex-based discrimination in violation of the Equal Pay Act. On July 26,

2013, the School District moved to dismiss, arguing (1) that Walker failed to set

forth plausible claims for race- or sex-based wage discrimination and (2) that

Walker’s retaliation claim was untimely.

       On October 17, 2013, the district court granted that motion in part and

denied it in part. The district court did not outright dismiss plaintiff Walker’s

discrimination claims, but it did hold that Walker’s retaliation claim was time-

barred.1

       Discovery followed. On August 29, 2014, the School District filed a motion

for summary judgment as to plaintiff Walker’s remaining discrimination claim.

On December 2, 2014, the district court granted the School District’s motion for

summary judgment. Plaintiff Walker timely appealed.

                             II. STANDARD OF REVIEW

       We review a district court’s ruling on a motion to dismiss de novo, applying

the same standard as the district court. Bhd. of Locomotive Eng’rs & Trainmen

Gen. Comm. of Adjustment CSX Transp. N. Lines v. CSX Transp., Inc., 522 F.3d


       1
         Plaintiff Walker, with leave of the district court, filed a Third Amended Complaint to
clarify his Equal Pay Act claim. Because Walker later stipulated to voluntary dismissal of that
claim, it is not relevant to our analysis here.
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1190, 1193-94 (11th Cir. 2008). We review the district court’s determination that

an amendment does not relate back to the original complaint for an abuse of

discretion, but we review for clear error the findings of fact used to apply Federal

Rule of Civil Procedure 15(c). Cliff v. Payco Gen. Am. Credits, Inc., 363 F.3d

1113, 1121 (11th Cir. 2004). While we construe pro se pleadings liberally, this

does not give courts license to rewrite deficient pleadings in order to sustain an

action. Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168-69 (11th Cir.), cert.

denied, 135 S. Ct. 759 (2014).

      We also review de novo the grant of a motion for summary judgment.

Carter v. Three Springs Residential Treatment, 132 F.3d 635, 641 (11th Cir. 1998).

We view the evidence in the light most favorable to the non-moving party. Id.

Summary judgment is appropriate if the pleadings, depositions, and affidavits

show that there is no genuine issue of material fact and that the moving party is

entitled to judgment as a matter of law. Id.

                                 III. DISCUSSION

A.    The Retaliation Claim

      We first explain why the district court did not err in dismissing the

retaliation claim as time-barred.

      Under Title VII, a plaintiff must file a civil action within 90 days of

receiving a right-to-sue letter from the Equal Employment Opportunity


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Commission (“EEOC”). Stallworth v. Wells Fargo Armored Servs. Corp., 936

F.2d 522, 524 (11th Cir. 1991).

      Where the plaintiff amends the complaint, even if the amended pleading was

filed outside of the applicable statute of limitations, it is timely only where (1) the

original pleading was timely and (2) the amended pleading relates back to the date

on which the original pleading was filed. Krupski v. Costa Crociere S. p. A., 560

U.S. 538, 541, 130 S. Ct. 2485, 2489 (2010). An amendment can relate back to the

original pleading when it “asserts a claim or defense that arose out of the conduct,

transaction, or occurrence set out—or attempted to be set out—in the original

pleading.” Fed. R. Civ. P. 15(c)(1)(B).

      A critical issue in determining whether an amendment relates back to the

original complaint is whether the original complaint gave the defendant notice of

the claim asserted in the amendment. Moore v. Baker, 989 F.2d 1129, 1131 (11th

Cir. 1993). In Moore, this Court determined that the amended claim did not

involve the same conduct, transaction, or occurrence as those raised in the original

complaint because (1) the original complaint did not refer to the new allegations of

negligence, (2) the original complaint focused on acts that occurred before a

surgery, and (3) the amended complaint focused on acts that occurred during and

after that surgery. Id. at 1132.




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      Plaintiff Walker does not dispute that his amended complaint, which

included a claim of retaliation for protected conduct, was filed more than 90 days

after he received his right-to-sue letter. In his original complaint, Walker did not

mention the protected conduct alleged in the amended complaint, nor did he

mention the alleged adverse actions taken against him by the School District.

      The district court did not abuse its discretion by concluding that the

retaliation claim in Walker’s amended complaint did not arise from the conduct,

transaction, or occurrence stated in the original complaint, since a liberal

construction of Walker’s pro se complaint cannot be used to rewrite it to include

facts that were excluded. Campbell, 760 F.3d at 1168-69. Therefore, we affirm

the district court’s dismissal of the retaliation claim as time-barred.

B.    The Wage Discrimination Claim

      Title VII prohibits an employer from discriminating against an individual by

providing that individual lower compensation because of his or her race. 42 U.S.C.

§ 2000e-2(a)(1). A plaintiff may prove such a discrimination claim either by

showing direct evidence of discrimination or by indirect evidence, in which

instance the burden-shifting framework outlined in McDonnell Douglas applies.

Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir.

1999) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817

(1973)).


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      To state a prima facie case of wage discrimination under Title VII, plaintiff

Walker must show that: (1) he belongs to a racial minority; (2) he received low

wages; (3) similarly situated comparators outside the protected class received

higher compensation; and (4) he was qualified to receive a higher wage. Cooper v.

S. Co., 390 F.3d 695, 734-35 (11th Cir. 2004), overruled on other grounds by Ash

v. Tyson Foods, Inc., 546 U.S. 454, 457, 126 S. Ct. 1195, 1197 (2006); see

Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1529 (11th Cir. 1992)

(applied to gender-based wage discrimination claim). In both race-based wage

discrimination cases and gender-based wage discrimination cases, this Court has

required the plaintiff to present a comparator who received higher compensation in

order to establish a prima facie case. See Cooper, 390 F.3d at 735; Meeks v.

Computer Assocs. Int’l, 15 F.3d 1013, 1019 (11th Cir. 1994).

      Here, Walker did not present a prima facie case of wage discrimination

because he failed to present a comparator who received higher compensation.

Kirsten VanWagner, the proposed comparator, and plaintiff Walker taught the

same number of courses at Bear Creek Middle School and Creekside High School

during the 2008-2009 school year. It is undisputed that Walker was paid more than

VanWagner. Therefore, Walker cannot use VanWagner as the comparator to

establish his prima facie case. See Cooper, 390 F.3d at 735.




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       Furthermore, the district court properly held that the defendant School

District carried its burden of articulating legitimate, non-discriminatory reasons for

its compensation decisions as to Walker and VanWagner. Bear Creek Middle

School’s principal, Darron Franklin, testified that the school’s limited budget

allowed a full-time position for VanWagner, a drama teacher at Bear Creek, but

did not allocate a full-time position for Walker, an orchestra teacher at Bear Creek.

Eighty percent of Walker’s salary was paid by Bear Creek for his position there,

while twenty percent was paid by Creekside in order to make his School District

teaching position full-time. 2 Principal Franklin could not use discretionary funds

to establish a full-time position for Walker at Bear Creek because he needed to

prioritize maintenance of the school building and core academic subjects.

Walker’s arguments and evidence did not rebut Franklin’s testimony. Plaintiff

Walker presents no evidence that Franklin or any other decisionmaker considered

plaintiff Walker’s race in assessing his compensation.

       The district court did not err in concluding that plaintiff Walker presented no

genuine issue of fact for trial and thus did not err in granting summary judgment to

the defendant School District. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079,

1088 (11th Cir. 2004) (stating that the plaintiff may not simply recast the



       2
      As noted above, plaintiff Walker’s total compensation remained greater than
VanWagner’s.
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defendant’s non-discriminatory reason, but rather must “meet it head on and rebut

it.”)

                                 IV. CONCLUSION

        For the foregoing reasons, we affirm the district court’s dismissal of

Walker’s retaliation claim and the district court’s grant of summary judgment to

the School District on Walker’s wage discrimination claim.

        AFFIRMED.




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