                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                   FILED
                                                          U.S. COURT OF APPEALS
                               No. 04-16131                 ELEVENTH CIRCUIT
                           Non-Argument Calendar               June 29, 2005
                         ________________________             THOMAS K. KAHN
                                                                   CLERK

                     D.C. Docket No. 03-03011-CV-JEC-1

OTIS JOHNSON,

                                                        Plaintiff-Appellant,

      versus

ATLANTA INDEPENDENT SCHOOL SYSTEM,
CAROL CLARK WESLEY, et al.

                                                        Defendants-Appellees.

                        __________________________

               Appeal from the United States District Court for the
                          Northern District of Georgia
                         _________________________
                                (June 29, 2005)

Before BARKETT, HULL and WILSON, Circuit Judges.

PER CURIAM:

      Otis Johnson, a 58-year-old male, proceeding pro se, was a teacher who was

ultimately not renewed because of alleged performance deficiencies by his
employer. He now appeals the district court’s grant of summary judgment to

defendants Atlanta Independent School System (APS), Principal Carol Clark-

Wesley, Deputy Superintendent Gloria Patterson, and Superintendent Beverly Hall

(Defendants) on his claims of sex and age discrimination, raised pursuant to Title

VII of the Civil Rights Act of 1964 (Title VII) and the Age Discrimination in

Employment Act (ADEA), 29 U.S.C. § 621, et seq., and due process violations

pursuant 42 U.S.C. § 1983. Johnson argues that the district court erred in finding

that (1) he did not establish a prima facie case based on evidence that similarly

situated employees outside his protected class were treated more favorably, (2) he

did not establish a prima facie case of retaliation based on evidence that the

decision-makers were aware of his discrimination charge when they decided to

terminate him, nor did he provide evidence that the reasons for his termination,

proffered by the defendants, were pretextual, (3) he did not put forth evidence that

state law did not provide a process sufficient to remedy his deprivation, and (4) his

motion to compel a deposition of a particular witness (Superintendent Hall) was

unnecessary.1




       1
        For the purposes of deciding this appeal, we assume, arguendo, that Johnson’s claims for
discrimination and retaliation were exhausted when he filed a charge with the EEOC on January 31,
2003.
                                               2
                                 I. Discrimination

       We review “a grant of summary judgment de novo, using the same legal

standard as the district court.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1184

(11th Cir. 1997). Summary judgment is proper 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. See Celotex Corp. v. Catrett, 477

U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P.

56(c)). The evidence, and all inferences drawn from the facts, must be viewed in

the light most favorable to the non-moving party. Matsushita Electric Indus. Co.,

Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d

538 (1986). In order to defeat summary judgment, however, the non-moving party

“must do more than simply show that there is some metaphysical doubt as to the

material facts.” Id. at 586, 106 S.Ct. at 1356. The non-moving party must make a

sufficient showing on each essential element of the case for which he has the

burden of proof. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552.

      Because Johnson relies on circumstantial evidence, this invokes the burden-

shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), for both his age

                                         3
and sex discrimination claims. Chapman v. AI Transport, 229 F.3d 1012, 1024

(11th Cir. 2000). Under the McDonnell Douglas/Burdine framework, the claimant

must first show an inference of discriminatory intent, and thus carries the initial

burden of establishing a prima facie case of discrimination. McDonnell Douglas,

411 U.S. at 802, 93 S.Ct. at 1824; see Holifield v. Reno, 115 F.3d 1555, 1561-62

(11th Cir. 1997). Once the plaintiff establishes a prima facie case, the burden

shifts to the defendant to “articulate some legitimate, nondiscriminatory reason”

for the employment action. McDonnell Douglas, 411 U.S. at 802; 93 S.Ct. at 1824.

If the defendant is able to meet its burden, the plaintiff must then show that the

proffered reason is merely a pretext for discrimination. Burdine, 450 U.S. at 253;

101 S.Ct. 1093.

      To succeed with his discriminatory discharge claim, Johnson had to show

that: (1) he was a member of a protected minority; (2) he was qualified for the job

from which he was discharged; (3) he was discharged; and (4) he was treated less

favorably than a similarly situated individual outside his protected class or his

former position was filled by a non-minority. Maynard v. Bd. of Regents, 342 F.3d

1281, 1289 (11th Cir. 2003).

      “In determining whether employees are similarly situated for purposes of

establishing a prima facie case, it is necessary to consider whether the employees

                                          4
are involved in or accused of the same or similar conduct and are disciplined in

different ways.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). “The

most important factors in the disciplinary context . . . are the nature of the offenses

committed and the nature of the punishment imposed.” Silvera v. Orange Co.

School Bd., 244 F.3d 1253, 1259 (11th Cir. 2001) (internal citation omitted)). “In

order to satisfy the similar offenses prong, the comparator’s misconduct must be

nearly identical to the plaintiff’s in order to prevent courts from second-guessing

employers’ reasonable decisions and confusing apples with oranges.” Id. at 1259

(internal quotation and citations omitted). Summary judgment is appropriate if the

plaintiff fails to show the existence of a similarly situated employee, and no other

evidence of discrimination is present. Holifield, 115 F.3d at 1562.

      Upon review of the record and upon consideration of the parties’ briefs, we

find no reversible error. According to the evidence before the district court, no

other teacher, who: (1) was either female or less than 40 years old; (2) had a

similar history of documented performance deficiencies; and (3) was given

opportunities and resources to improve, similar to those received by Johnson, but

did not; and was still retained. Because Johnson failed to establish the existence

of a similarly situated employee, the district court properly granted summary

judgment on his claims of sex and age discrimination.

                                           5
                                    II. Retaliation

      To prevail on a claim of retaliation under Title VII, a plaintiff must establish

three elements by a preponderance of the evidence: (1) that he engaged in an

activity protected under Title VII, (2) that he suffered an adverse employment

action, and (3) that there was a causal connection between the protected activity

and the adverse employment action. Gupta v. Florida Bd. of Regents, 212 F.3d

571, 587 (11th Cir. 2000). “To establish a causal connection, a plaintiff must

show that ‘the decision-makers were aware of the protected conduct’ and ‘that the

protected activity and the adverse employment action were not wholly unrelated.’”

Id. at 590 (internal citations omitted).

       Once a prima facie case is established, the employer has an opportunity to

articulate a legitimate, non-retaliatory reason for the challenged employment

action. Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001).

To show the proffered reason is merely a pretext, the employee must

      demonstrate that the proffered reason was not the true reason for the
      employment decision . . . [The plaintiff] may succeed in this either
      directly by persuading the court that a discriminatory reason more
      likely motivated the employer or indirectly showing that the
      employer’s proffered explanation is unworthy of credence.




                                           6
Jackson v. State of Alabama State Tenure Comm., No. 04-10046, slip op. at 1924

(11th Cir. April 14, 2005) (quotations and citations omitted). Specifically, the

plaintiff must produce sufficient evidence to allow a reasonable finder of fact to

conclude the defendants’ articulated reasons are not believable. Id. at 28-29

(quotations and citations omitted). This can be accomplished by pointing to

“weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions” in

the proffered explanation. Id. at 29 (quotations and citations omitted). “[T]o

avoid summary judgment [the plaintiff] must introduce significantly probative

evidence showing that the asserted reason is merely a pretext for discrimination.”

Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1228 (11th Cir. 1993) (citation

omitted). A reason is not pretext for discrimination “unless it is shown both that

the reason was false, and that discrimination was the real reason.” St. Mary’s

Honor Center v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407

(1993) (emphasis in original).

      Upon review of the record and upon consideration of the parties’ briefs, we

find no reversible error. It was undisputed that Johnson engaged in an activity

protected under Title VII when he filed a charge of discrimination with the EEOC

in early 2003. It was also undisputed that he suffered an adverse employment

action when the APS refused to renew his employment contract on March 14,

                                         7
2003 for the 2003-04 academic year. Thus, the only question under a prima facie

analysis is whether he could establish a causal connection between the two events.

The district court properly granted summary judgment on this claim because he

did not show that the decision-makers were aware of the claim he had filed on

January 31, 2003, as they did not receive it until May 6, 2003. Moreover, even

assuming he established a prima facie case, Johnson was unable to show that

APS’s articulated reason for terminating him - that he had a documented history of

performance deficiencies - was a pretext for retaliation.

                                  III. Due Process

      A procedural due process violation occurs when “the State fails to provide

due process.” McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (en banc)

(internal quotations omitted). “Due process entitles an individual to notice and

some form of hearing before state action may finally deprive him or her of a

property interest. Cryder v. Oxendine, 24 F.3d at 175, 177 (11th Cir.

1994)(citation omitted). However, a “state may cure a procedural deprivation by

providing a later procedural remedy.” Id. Where the state has adequate remedies

to cure due process deprivations, that a plaintiff has not taken advantage of, a

plaintiff may not pursue his claim in federal court. Id. at 1563-64 (holding that




                                          8
Florida courts provide review and adequate remedies with regard to employment

termination cases).

      Upon review of the record and upon consideration of the parties’ briefs, we

find no reversible error. Johnson was offered a hearing and declined attendance

before his termination. Thus, the district court properly granted summary

judgment on this claim

                                   IV. Discovery

      Next, Johnson argues that the district court erred in denying his motion to

compel Hall’s deposition. We review a district court’s discovery rulings for abuse

of discretion. See Burger King Corp. v. Weaver, 169 F.3d 1310, 1315 (11th Cir.

1999). To prevail on appeal to a challenge to a district court’s denial of additional

discovery, a party “must show substantial harm to its cause.” Leigh v. Warner

Bros., Inc., 212 F.3d 1210, 1219 (11th Cir. 2000).

      Upon review of the record and upon consideration of the parties’ briefs, we

find no reversible error. The district court properly denied Johnson’s motion to

compel because Johnson did not put forth any evidence to show that Hall was

aware of the decision to terminate him or possessed any information concerning

discrimination at Ralph McGill Elementary School. Further, he did not show that

she possessed any evidence that was necessary for him to oppose the defendants’

                                          9
motion for summary judgment. Finally, we note that he does not claim, on appeal,

that the inability to depose Hall prevented him from properly responding to APS’s

motion for summary judgment, and even if he did, the record shows he did not

raise such a claim - or follow the procedure set forth in Fed.R.Civ.P. 56(f) - before

the district court in the first instance. Accordingly, the district court’s judgment is

      AFFIRMED.




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