                                                           [DO NOT PUBLISH]




              IN THE UNITED STATES COURT OF APPEALS
                                                          FILED
                      FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                        ________________________   ELEVENTH CIRCUIT
                                                      MARCH 27, 2008
                                                    THOMAS K. KAHN
                              No. 07-11321
                                                         CLERK
                           Non-Argument Calendar
                         ________________________

                     D. C. Docket No. 05-23106-CV-JAL

JOHNNY LAMOTHE,

                                                     Plaintiff-Appellant,

                                    versus

BAL HARBOUR 101 CONDOMINIUM ASSOCIATION INC.,

                                                    Defendant-Appellee.

                         ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       _________________________

                               (March 27, 2008)

Before DUBINA, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

     Appellant Johnny Lamothe (“Lamothe”) appeals the district court’s grant of
summary judgment in favor of Bal Harbour 101 Condominium Association, Inc.

(“Bal Harbour”) and denial of his motion to amend the complaint in his

employment discrimination lawsuit, which alleged discrimination based on race

and national origin, filed pursuant to Title VII of the Civil Rights Act of 1964

(“Title VII”), 42 U.S.C. § 2000e-2(a); the Florida Civil Rights Act (“FCRA”), Fla.

Stat. §§ 760.01-760.11; and 42 U.S.C. § 1981.

                                I. BACKGROUND

      On February 1, 2005, Lamothe was fired from his job as a valet parking

supervisor at Bal Harbour. At the time of his firing, Donald Molina (“Molina”),

Lamothe’s supervisor, referring to a note that Lamothe had written, allegedly

stated that “only a Haitian with brain cancer would write a note like that.” Then,

Molina allegedly told Lamothe “I think you don’t deserve to work here. You

should get a job at $6.50 at McDonald’s like the other niggers.” Later, Molina

came out of his office and saw that Lamothe was still present. He then allegedly

said “Didn’t I fire you? What are you still doing here? Didn’t I tell you to get a

job with the other niggers at McDonald’s at $6.50 an hour?”

      Following this exchange, which was during the middle of Lamothe’s shift,

Lamothe left work. The next day Molina telephoned Lamothe to apologize for the

incident and asked Lamothe to return to work. Lamothe responded that he did not



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want to work with Molina. That same day, Lamothe spoke on the telephone with

Thomas Hart, the General Manager of Bal Harbour, who also apologized to

Lamothe and asked him to return to work. Lamothe declined this offer.

         Lamothe initiated this lawsuit on November 30, 2005. On November 16,

2006, Bal Harbour filed a motion for summary judgment. On February 27, 2007,

Lamothe filed a motion to amend his complaint. The court granted Bal Harbour’s

motion and denied Lamothe’s motion on March 13, 2007.

                                      II. ISSUES

1) Whether the district court properly granted Bal Harbour’s summary judgment

motion.

2) Whether the district court properly denied Lamothe’s motion to amend the

complaint.

                           III. STANDARDS OF REVIEW

         We “review the grant of summary judgment de novo viewing the facts and

drawing all reasonable inferences in favor of the nonmoving party.” Rowell v.

BellSouth Corp., 433 F.3d 794, 798 (11th Cir. 2005).

         We review a district court’s denial of a motion to amend for abuse of

discretion. Smith v. Sch. Bd. of Orange County, 487 F.3d 1361, 1366 (11th Cir.

2007).



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                                   IV. DISCUSSION

A. Motion for Summary Judgment

       In granting summary judgment, the district court held that Lamothe had

failed to present direct evidence of discrimination, and thus, in order to proceed

past the summary judgment phase, Lamothe had to use 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). Under this framework, a plaintiff can establish

a prima facie case of discriminatory discharge under Title VII by showing that he

“(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).1 The court held that Lamothe had failed to show that he had suffered an

adverse employment action. Because Lamothe could not establish a McDonnell

Douglas prima facie case, the court granted summary judgment.

       On appeal, Lamothe argues that he had indeed set forth direct evidence of a

discriminatory discharge, and furthermore, even if direct evidence was not

presented, he had established that an adverse employment action had occurred.



       1
        Allegations of discrimination brought under § 1981 and the FCRA are analyzed under
the same framework applicable to Title VII cases. Bass v. Bd. of County Comm’rs Orange
County, Fla., 256 F.3d 1095, 1109 n.4 (11th Cir. 2001).

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After reviewing the record and the parties’ briefs, we conclude that Lamothe is

correct on both of these issues.

      “Only the most blatant remarks, whose intent could mean nothing other than

to discriminate on the basis of some impermissible factor constitute direct evidence

of discrimination.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir.

2004) (internal quotations and citations omitted). “If the alleged statement

suggests, but does not prove, a discriminatory motive, then it is circumstantial

evidence.” Id. (citations omitted).

      In this case, the issue is whether Molina’s statements directed at Lamothe at

the time of the discharge amount to direct evidence of discrimination. The district

court found that Molina’s statements were not direct evidence. We disagree.

When statements displaying discriminatory animus are directed at an employee and

made contemporaneously with an adverse employment action toward that

employee, those statements constitute direct evidence of discrimination. Thus,

Molina’s statements that “only a Haitian with brain cancer would write a note like

that,” and that Lamothe should “get a job at $6.50 at McDonald’s like the other

niggers”—statements made contemporaneously with Lamothe’s discharge—are

indeed direct evidence of discrimination based on race and national origin.

      The district court also erred in determining that no adverse employment



                                          5
action occurred. “A proposed action that is corrected as soon as the proper official

is made aware of it and before it goes into effect, so that the employee does not

actually suffer any consequence, is not ‘adverse.’” Gupta v. Fla. Bd. of Regents,

212 F.3d 571, 588 (11th Cir. 2000). The district court reasoned that since an offer

to reinstate was made the day after Lamothe was fired, no adverse action had

occurred. However, as Gupta indicates, the correction must occur before the

proposed action “goes into effect.” In this case, viewing the facts in a light most

favorable to the plaintiff, Lamothe was simply terminated on February 1, 2005.

There was no “proposal” for action to later “go into effect”; the proposal to fire

Lamothe went into effect immediately. Hence, we conclude that the district court

erred in finding that an adverse action had not occurred.

B. Motion to Amend

      Lastly, Lamothe argues on appeal that the district court erred by denying his

motion to file an amended complaint because his constructive discharge claim

arose out of the same conduct set forth in the original complaint and Bal Harbour

would not have been prejudiced by the amendment. If a motion for leave to amend

is filed after the deadline set in a scheduling order issued pursuant to Rule 16 of the

Federal Rules of Civil Procedure, the motion is governed first by Rule 16(b).

Smith v. Sch. Bd. of Orange County, 487 F.3d 1361, 1366-67 (11th Cir. 2007).



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According to Rule 16(b), district courts are required to enter a scheduling order

that “limit[s] the time to join other parties, [and] amend the pleadings.” F ED. R.

C IV. P. 16(b)(3)(A). “[W]here a party’s motion to amend is filed after the deadline

for such motions, . . . the party must show good cause why leave to amend the

complaint should be granted.” Smith, F.3d at 1366. In the event that good cause

for an untimely amendment is shown, the Federal Rules of Civil Procedure provide

that, prior to trial, the district court “should freely give leave [to amend the

complaint] when justice so requires.” F ED. R. C IV. P. 15(a)(2).

      Given the untimeliness of Lamothe’s motion and his complete lack of a

showing of good cause, we conclude that the district court did not abuse its

discretion in denying Lamothe the opportunity to amend his complaint before the

court ruled on the summary judgment motion.

                                  V. CONCLUSION

      For the above stated reasons, we conclude that the district court erred in

determining that Lamothe had not presented direct evidence of discrimination and

had not suffered an adverse employment action. We affirm, however, the district

court’s denial of Lamothe’s motion to amend.

      VACATED and REMANDED in part; AFFIRMED in part.




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