              Case: 14-10176     Date Filed: 05/21/2014    Page: 1 of 6


                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 14-10176
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 8:12-cv-02832-RAL-EAJ


BERNARD TOOMER,

                                                                 Plaintiff- Appellant,
                                       versus


CACI, INC. – FEDERAL,

                                                                Defendant-Appellee.

                           ________________________

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

                                   (May 21, 2014)

Before HULL, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

      Bernard Toomer appeals the summary judgment in favor of his former

employer, CACI, Inc. – Federal, and against his complaint that he was fired

because of his race, in violation of Title VII of the Civil Rights Act of 1964, 42
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U.S.C. § 2000e-2(a)(1), and the Florida Civil Rights Act, Fla. Stat. § 760.01. We

affirm.

      CACI contracts with the government to provide information technology

services in the areas of defense, intelligence, and homeland security. Between

2000 and 2010, Science Applications International Corporation subcontracted with

CACI to provide technology services to the Defense Information System Agency

and its field offices around the world. In 2000, CACI hired Toomer, as a level

three engineer, to work in Bahrain to evaluate and recommend products for the

Agency to use in operating and maintaining the security of its global computer

network systems.

      In 2008, CACI assigned Toomer to a two-phase project in which he would

move the network domain operations for the Agency from Bahrain to MacDill Air

Force Base outside of Tampa, Florida, and then transition the Southwest Asia

Promina Domain from a Transport technology to an Internet Protocol technology.

During the project, Glenn Morefield, a project manager at CACI, supervised

Toomer, while Anthony McFadden, a Division Chief for the Agency, oversaw

Toomer’s daily work. During the first phase of the project, McFadden was

“disappointed with [Toomer’s] performance and capabilities.” On July 30, 2010,

Stephen Gessling, an employee of Science Applications who served as a liaison

between the Agency and CACI, sent an email to CACI reciting McFadden’s


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criticisms of Toomer’s work; stating that Toomer lacked the skills necessary to

work on the second phase of the project; and requesting that CACI remove Toomer

from the project. In a later email, Gessling stated that McFadden disapproved

strongly of Toomer’s performance and that McFadden “rebuffed” Gessling’s

suggestions to “plac[e] Mr. Toomer in another position.” Later, Toomer spoke

with McFadden in his office. McFadden told Toomer that “we are getting rid of

you” and that he had 30 days to seek other employment.

      CACI removed Toomer from the project because the contract between

Science Applications and CACI required it to “remove and replace any key-

primary personnel or individual whose performance is determined by the

Government to be so deleterious as to jeopardize successful performance of the

Subcontract.” CACI found Toomer another position as a level 2 engineer at Scott

Air Force Base in Illinois, but Toomer declined the position because his salary

would be decreased. Later, CACI sent Toomer a separation letter stating that he

was fired “based on [his] inability to meet the work performance requirement in

[his] current position”; that he was eligible to be rehired by CACI; and that a

representative was available to help him find another position with CACI. Toomer

signed the separation letter.

      Toomer complained that CACI terminated him because he was African-

American. CACI filed a motion for summary judgment to which it attached the


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email sent by Gessling and a copy of Toomer’s deposition during which he

acknowledged that CACI had the limited options of giving him another position or

firing him. Toomer argued in opposition that he was given positive performance

evaluations by Morefield and that there was no evidence that he lacked the skills

needed to perform the next phase of the project. Toomer argued that the reason

given for his termination was pretextual because it was inconsistent with the

enthusiastic praise he had received in his evaluations.

      The district court entered summary judgment in favor of CACI. The district

court ruled that Toomer could not establish a prima facie case of discrimination

because he was not qualified to work on a project when CACI was contractually

required to remove him at the request of the Agency. In the alternative, the district

court ruled that Toomer failed to prove that the legitimate, race-neutral reason that

CACI gave for the termination was a pretext for unlawful discrimination.

      The district court did not err when it entered summary judgment against

Toomer’s complaint. To establish a prima facie case of unlawful discrimination

under Title VII and under the Florida Civil Rights Act, Toomer had to establish

that he was a member of a protected class; he was qualified to do the job; he was

subjected to an adverse employment action; and he was treated less favorably than

similarly situated individuals outside his protected class. See Holland v. Gee, 677

F.3d 1047, 1055 (11th Cir. 2012); Alvarez v. Royal Atl. Developers, Inc., 610 F.3d


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1253, 1271 (11th Cir. 2010). Toomer failed to establish that he was qualified to

work on the project after the government demanded his removal from that project.

Toomer argues that a genuine factual dispute exists about whether McFadden was

dissatisfied because “[t]he only support for [his] observations comes from emails .

. . [from] Gessling” and because “a reasonable argument can be made that Gessling

pursued Toomer’s removal and McFadden merely acquiesced to [that] decision,”

but Toomer failed to submit any evidence to substantiate these arguments. See

Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (“[U]nsupported

speculation . . . does not meet a party’s burden of producing some defense to a

summary judgment motion.” (quoting Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928,

931–32 (7th Cir. 1995)). The record establishes, without dispute, that McFadden,

who is also African-American, told Toomer that he was being fired. According to

its contract, CACI was required to remove Toomer from the project at the request

of the government and regardless of the positive evaluations that Toomer received

from his supervisor at CACI. And Toomer acknowledged that, when he declined

to accept the other position offered by CACI, it had no alternative but to fire him.

For the same reasons, even if we were to assume that Toomer established a prima

facie case of discrimination, he failed to establish that the reason proffered for his

termination was a pretext for discrimination. See Cuddeback v. Fla. Bd. of Educ.,

381 F.3d 1230, 1235-36 (11th Cir.2004) (holding that this Court may affirm the


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district court’s judgment on any ground that finds support in the record and

affirming when plaintiff established a prima facie case but failed to establish

pretext).

      We AFFIRM the summary judgment in favor of CACI.




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