          Case: 13-10589   Date Filed: 06/20/2013   Page: 1 of 6




                                                        [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                           No. 13-10589
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 5:12-cv-00284-MTT



NICOLA C. HUDSON,

                                                          Plaintiff-Appellant,

                                 versus

MIDDLE FLINT BEHAVIORAL HEALTHCARE,

                                                         Defendant-Appellee,

HR DIRECTOR TODD THOMPSON, et al.,

                                                                   Defendants.

                     ________________________

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

                            (June 20, 2013)
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Before DUBINA, Chief Judge, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

       Appellant Nicola Hudson, appearing pro se, appeals the district court’s grant

of summary judgment in favor of Middle Flint Behavioral Healthcare (“Middle

Flint”). Hudson filed a complaint alleging racial discrimination in her wrongful

termination.1 She now argues—in a one-page brief devoid of citations—that the

district court erred in granting summary judgment when Middle Flint failed to

prove an African-American had been hired permanently to fill her vacated

position. After the district court granted summary judgment to Middle Flint, she

moved for reconsideration. In her motion for reconsideration, she claimed for the

first time that a former male supervisor sexually harassed her while she worked at

Middle Flint.2 The district court denied the motion, and she appealed. She now

argues the district court failed to consider her sexual harassment claim when it

denied her motion for reconsideration. Because Hudson challenges both of these

rulings on appeal, as noted below, we will address each point in turn.




1
 In her complaint, Hudson also raised claims of a racially hostile work environment and
retaliation, but she failed to mention these claims in her brief and has therefore abandoned them.
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
2
 Hudson also argues that the district court demonstrated bias against her as a pro se litigant.
Hudson identifies no basis in the record suggestive of bias, however, and therefore her claim
does not merit further review.
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                                 I. Wrongful Termination

      On appeal, Hudson argues that Middle Flint failed to prove she was replaced

with another African-American, as its evidence was unreliable hearsay. Therefore,

the district court improperly granted summary judgment to Middle Flint on her

wrongful termination claim.

      We review de novo the grant of summary judgment. Crawford v. Carroll,

529 F.3d 961, 964 (11th Cir. 2008). We may affirm the grant of summary

judgment on any ground supported by the record. Wilchombe v. TeeVee Toons,

Inc., 555 F.3d 949, 960 (11th Cir. 2009). Summary judgment is proper “if the

pleadings, depositions, answers to interrogatories, and admissions on file, together

with the affidavits, if any, show 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.” Crawford,

529 F.3d at 964. If the movant succeeds in demonstrating the lack of a genuine

material issue of fact, the non-movant must then show the existence of a genuine

issue of fact to defeat the motion for summary judgment. Burger King Corp. v. E-

Z Eating, 572 F.3d 1306, 1313 (11th Cir. 2009). Nonmoving parties must “go

beyond the pleadings” and provide evidence showing a genuine issue of material

fact remains. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553-

54, 91 L. Ed. 2d 265 (1986). The district court cannot consider hearsay evidence




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in ruling on a summary judgment motion, unless that evidence would have been

admissible at trial. Macuba v. DeBoer, 193 F.3d 1316, 1322-23 (11t Cir. 1999).

      “Pro se pleadings are held to a less stringent standard than pleadings drafted

by attorneys and will, therefore, be liberally construed.” Boxer X v. Harris, 437

F.3d 1107, 1110 (11th Cir. 2006) (internal quotation marks omitted). However, the

leniency afforded pro se litigants does not give the courts license to serve as de

facto counsel or permit them to rewrite an otherwise deficient pleading in order to

sustain an action. GJR Inv., Inc. v. County of Escambia, Fla., 132 F.3d 1359, 1369

(11th Cir. 1998).

      It is unlawful, under Title VII, for employers to discharge any individual, or

otherwise discriminate against any individual because of that individual’s race. 42

U.S.C. § 2000e-2(a)(1). In order to establish a prima facie case for discriminatory

termination under Title VII, using only circumstantial evidence, the plaintiff may

show that she (1) was a member of a protected class, (2) was qualified for the job,

(3) suffered an adverse employment action, and (4) was replaced by someone

outside the protected class. Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230, 1235

(11th Cir. 2004). Rather than demonstrate that she was replaced by someone

outside of her protected class, a plaintiff may instead demonstrate that her

employer treated similarly situated employees outside of her class more favorably.

Crawford, 529 F.3d at 970. If the plaintiff establishes her prima facie case, and


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the defendant provides a legitimate nondiscriminatory reason for the plaintiff’s

termination, the plaintiff may then demonstrate that the defendant’s reason was a

pretext for discrimination. Cuddenback, 381 F.3d at 1235 (citing McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25, 36 L. Ed.

2d 668 (1973)). Absent a showing that the defendant’s legitimate

nondiscriminatory reason was a pretext, summary judgment in favor of the

employer is appropriate. Id.

      The record here demonstrates that evidence from Hudson’s former employer

suggested that the company fired her because she omitted prior employment

information from her application. Further, the evidence showed that the employer

later filled her position, twice, with African-American females, and she presented

no evidence to the contrary. Thus, we conclude that she failed to establish a prima

facie case for discriminatory termination. Even if she had established a prima

facie case, however, she did not show that Middle Flint’s stated legitimate

nondiscriminatory basis for her termination was a pretext for race discrimination,

nor did she demonstrate that genuine issues of material fact remained.

Accordingly, we conclude that the district court properly granted Middle Flint’s

motion for summary judgment in this respect.

                                 II. Sexual Harrassment




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      Hudson contends the district court failed to address her sexual harassment

claim against a male supervisor.

      Her former employer responds that the sexual harassment issue raised for the

first time in Hudson’s motion for reconsideration should not be considered by us,

as it was improperly raised.

       “At the summary judgment stage, the proper procedure for plaintiffs to

assert a new claim is to amend the complaint in accordance with Federal Rule of

Civil Procedure 15(a).” Gilmour v. Gates, McDonald and Co., 382 F.3d 1312,

1315 (11th Cir. 2004) (holding that a nonmovant could not raise new arguments in

a brief opposing a motion for summary judgment).

      We conclude from the record here that Hudson failed to properly raise her

claim of sexual harassment, because she did not present it until she filed her post-

judgment motion for reconsideration. Accordingly, we find no error in the district

court’s refusal to consider Hudson’s sexual harassment claim.

      For the aforementioned reasons, we affirm the district court’s grant of

summary judgment in favor of Middle Flint.

      AFFIRMED.




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