          Case: 17-14867   Date Filed: 10/10/2018   Page: 1 of 14


                                                        [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-14867
                        Non-Argument Calendar
                      ________________________

                   D.C. Docket No. 7:15-cv-00138-HL



JOHN LEWIS HOGAN, III,

                                                           Plaintiff-Appellant,

                                  versus

SOUTH GEORGIA MEDICAL CENTER,

                                                                    Defendant,

HOSPITAL AUTHORITY OF VALDOSTA
AND LOWNDES COUNTY, GEORGIA,
d.b.a. South Georgia Medical Center,

                                                          Defendant-Appellee.

                      ________________________

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

                           (October 10, 2018)
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Before ED CARNES, Chief Judge, MARCUS, and HULL, Circuit Judges.

PER CURIAM:

       John Hogan, III, sued his former employer, the Hospital Authority of

Valdosta and Lowndes County, Georgia, under Title VII of the Civil Rights Act

and 42 U.S.C. §§ 1981 and 1983. He claims that the hospital discriminated and

retaliated against him because he is black. The district court granted the hospital’s

motion for summary judgment, and Hogan appeals.

                                               I.

       Hogan worked for the hospital as a dialysis technician from September 2011

to July 2013.1 He was the only hospital employee in the dialysis department.

Everyone else working in that department was employed by South Georgia Acute

Dialysis (SGAD), a company the hospital hired to run and staff the department.

Those employees reported to Dr. Arunas Urbonas, SGAD’s owner, while Hogan

reported to a nurse manager for the hospital. But Hogan worked closely with

Urbonas and the SGAD nurses, and they determined when Hogan was to report to

work each day based on the number of patients needing dialysis treatment.

Urbonas or one of the SGAD nurses would text Hogan the day’s treatment

schedule, and Hogan was to arrive in time to clean and prepare the dialysis

       1
         Hogan began working for Smith Northview Hospital in 2007. In 2011 the Hospital
Authority acquired Smith Northview Hospital and re-hired Hogan that September to continue
working in the dialysis department. For ease of reference, when we refer to the “hospital,” we
mean the hospital as managed and operated by the Hospital Authority.
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machines before the patients came. Hogan was also responsible for assisting the

nurses in monitoring the patients during treatment and disinfecting the machines

and water systems after each session. The hospital required Hogan to keep a log

book documenting each time he cleaned the machines. It also required him to

maintain his CPR certification and undergo yearly training.

       When the hospital hired Hogan in September 2011, it paid him an hourly

wage of $10.06. Hogan complained about his pay and learned that the human

resources department did not have a copy of his dialysis technician certification;

when he provided it, the hospital raised his pay to $11.07 per hour. In March 2012

the hospital gave Hogan an annual pay raise, increasing his pay to $11.29 per hour.

And the hospital paid him $4.00/hour for the time he was on call, though Hogan

says that his on-call hours were more limited than those of other employees. 2

In addition to his work at the hospital, Hogan also owned and operated a taxicab

business, which the hospital did not object to so long as it did not interfere with his

work at the hospital.

       In January 2013 the nurse manager of Hogan’s department left. He had

managed the dialysis department and the spine clinic and served as Hogan’s direct

supervisor. Hogan wanted to apply for the job, but the hospital did not post the

       2
        In his brief before this Court Hogan repeats the allegation from his Amended
Complaint that his on-call wage was $2.00 per hour, but the undisputed evidence shows that
Hogan’s pay was raised to $4.00 per hour when the Hospital Authority acquired Smith
Northview Hospital in 2011.
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position as vacant. And when Hogan expressed interest to the departing nurse

manager and Urbonas, they told him that there was not an open position. Instead,

the hospital reassigned management of the dialysis department to Darlene

Williams, the assistant chief nursing officer who also managed (and continued to

manage) the medical-surgical department. She is white. According to Hogan the

administrative changeover prevented him from receiving an annual pay raise

because it delayed his evaluation.

      A few months after Williams began managing the dialysis department,

Hogan complained to Leonard Carter, a manager at the hospital, that one of the

SGAD nurses, Lisa McCutchin, was receiving training necessary for advancement

but he was not. He also told McCutchin’s supervisor, Urbona; his own supervisor,

Williams; and the hospital’s risk management officer, Earl Boyett, that he did not

think McCutchin was performing her job correctly.

      While all of this was going on, Hogan’s own relationships with Urbona and

Williams were breaking down. Williams noted that Hogan was often on his phone

at work, and McCutchin told Williams that Hogan was running his taxicab

business while on duty at the dialysis clinic. The director of human resources

spoke with Hogan multiple times about various problems in his job performance.

And when Hogan went to Williams to discuss McCutchin, Williams turned the




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conversation back to Hogan’s own performance. Hogan says he told Urbona and

Boyett that the hospital was discriminating against him.

      Things came to a head on May 10, 2013. Hogan showed up late for work

when a patient was scheduled for dialysis, and Williams observed Hogan using his

cell phone in front of patients. She issued a disciplinary action report, suspended

Hogan for three days without pay, and instructed him to report to work each day by

8:30 a.m. Four days later she reported to the risk management department that

Hogan had reported cleaning the machines on certain days when he had not

actually done so. Observers conducting a mock Joint Commission survey at the

hospital later that month noted the same thing. Those observers also saw Hogan

making personal calls at work and failing to follow the hospital’s guidelines on

infection prevention. And they learned that Hogan’s CPR certification had lapsed.

      Williams gave Hogan a negative performance review on June 5, 2013, and

the hospital placed him on a performance improvement plan. Among other things

the plan required Hogan to report to work by 8:00 a.m. each day, refrain from

using his cell phone at work, and document his cleaning and testing of the

machines each day instead of filling in the logs by memory at the end of the week.

The next month the hospital determined that Hogan’s performance had not

improved and terminated his employment. The hospital hired a new dialysis

technician, a black woman, to replace Hogan.


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       Hogan sued the hospital, asserting claims for race discrimination and

retaliation under Title VII of the Civil Rights Act and 42 U.S.C. §§ 1981 and 1983.

He claimed that the hospital discriminated against him based on his race by (1)

failing to promote him to manager of the dialysis department; (2) not providing

him with additional training opportunities; (3) limiting the number of on-call hours

he could get paid for; (4) suspending his employment; (5) placing him on a

performance improvement plan; (6) terminating his employment; and (7)

retaliating against him for complaining about discrimination. After discovery the

district court granted summary judgment to the hospital on all of these claims. 3

                                             II.

       We review de novo a district court’s grant of summary judgment and draw

all reasonable inferences and review all evidence in the light most favorable to the

non-moving party. See Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316,

1318 (11th Cir. 2012). Summary judgment is appropriate if “there is no genuine

issue as to any material fact and the moving party is entitled to a judgment as a

matter of law.” D’Angelo v. ConAgra Foods, Inc., 422 F.3d 1220, 1225 (11th Cir.

2005) (quotation marks omitted).

       3
           Hogan also brought claims under state law, but they were dismissed by the district
court under Federal Rule of Civil Procedure 12(b)(6). The district court also granted summary
judgment to the hospital on a hostile work environment claim Hogan attempted to raise in his
response brief to the hospital’s motion for summary judgment. Hogan does not seek relief from
either ruling, and we do not address the claims because “[i]ssues not raised on appeal are
considered abandoned.” AT&T Broadband v. Tech Commc’ns, Inc., 381 F.3d 1309, 1320 n.14
(11th Cir. 2004).
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      Hogan challenges the district court’s treatment of his response to the

hospital’s statement of material facts, which the hospital had submitted under a

local rule as part of its motion for summary judgment. The local rule also required

Hogan to respond to “each of the movant’s numbered material facts” that he

disputed. M.D. Ga. L.R. 56. Despite this, Hogan did not respond to the hospital’s

numbered material facts and instead submitted a short statement arguing his

version of the facts and raising hypothetical questions about those presented by the

hospital. Because Hogan did not comply with the rule the district court deemed the

hospital’s facts admitted and viewed its motion for summary judgment as

functionally unopposed.

      Hogan now claims that the district court’s decision amounts to error because

his response “did refer to citations in the record where genuine issues of material

issues of fact existed and it would be inappropriate to deem these responses

argumentative and hypothetical.” This passing argument is not enough to preserve

the issue on appeal. See Keister v. Bell, 879 F.3d 1282, 1287 n.2 (11th Cir. 2018).

And even if it were, we give “great deference to a district court’s interpretation of

its local rules” and review only for an abuse of discretion. Mann v. Taser Int’l,

Inc., 588 F.3d 1291, 1302–03 (11th Cir. 2009). To meet this standard, Hogan

bears the burden of showing that the “district court made a clear error of

judgment,” which his fleeting remark does not do. Id. at 1302–03.


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      Like the district court, then, we consider the hospital’s motion as “the

functional analog of an unopposed motion for summary judgment.” Id. at 1303

(quotation marks omitted). Even with an unopposed motion, we “must still review

the movant’s citations to the record to determine if there is, indeed, no genuine

issue of material fact.” Id. The hospital is “not absolved of the burden of showing

that it is entitled to judgment as a matter of law.” Id.

                                          III.

      Hogan challenges the district court’s grant of summary judgment on his race

discrimination claims and his retaliation claim. We consider each in turn.

                                          A.

      Because Hogan alleged only circumstantial evidence of race discrimination,

the district court analyzed his claims under the burden-shifting framework

established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.

792, 93 S. Ct. 1817 (1973), and we will do the same. Under that framework Hogan

must show that (1) he is a member of a protected class; (2) he was subjected to an

adverse employment action; (3) his employer treated similarly situated employees

outside of his class more favorably; and (4) he was qualified to do the job.

McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008). If he can satisfy these

elements, the hospital must provide a “legitimate, nondiscriminatory reason” for its

action. Id. And if that burden is met, Hogan must then show that the hospital’s


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reasons are a pretext for unlawful discrimination. Id. The elements of §§ 1981 and

1983 claims in the employment context are the same as the elements of a Title VII

claim, so we will consider them together. Rice-Lamar v. City of Fort Lauderdale,

232 F.3d 836, 843 n.11 (11th Cir. 2000).

      None of Hogan’s claims succeed under this framework. First, his claim that

the hospital discriminated against him by not promoting him to nurse manager of

the dialysis department fails because he has not shown that the job existed once his

original supervisor left or that he was qualified for it if it did continue to exist. See

Walker v. Mortham, 158 F.3d 1177, 1191–92 (11th Cir. 1998) (explaining that a

plaintiff bringing a failure-to-promote claim must show that “[he] applied for and

was qualified for an available position, that [he] was rejected, and that after [he]

was rejected [the employer] either continued to seek applicants for the position,

or . . . filled the position with a[n] [employee outside the plaintiff’s protected

class]”) (quotation marks omitted). The hospital presented evidence that it simply

added the administrative responsibility to Williams’ existing duties and that the

position held by Williams required a bachelor’s degree in nursing, a master’s

degree in nursing, four years of experience in nursing, and four years of

supervisory experience. Hogan had none of those qualifications.

      Second, Hogan’s failure-to-train claim fails because he has not shown how

the hospital’s failure to provide Hogan with the same training that McCutchin


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received constitutes an adverse employment action. “[N]ot all conduct by an

employer negatively affecting an employee constitutes adverse employment

action.” Davis v. Town of Lake Park, 245 F.3d 1232, 1238 (11th Cir. 2001).

Instead, “an employee must show a serious and material change in the terms,

conditions, or privileges of employment.” Id. at 1239. Hogan has provided no

evidence that the terms of his employment were affected by not being able to

attend the training alongside McCutchin. Nor is McCutchin a similarly situated

comparator to begin with: She was a nurse working for a contractor of the hospital

while Hogan was a dialysis technician working for the hospital directly. “As such,

[McCutchin] and [Hogan] were dissimilar in several critical respects, and were a

far cry from being nearly identical.” Trask v. Sec’y, Dep’t of Veterans Affairs,

822 F.3d 1179, 1193 (11th Cir. 2016) (quotation marks omitted).

      Third, Hogan has not identified a similarly situated comparator for his

compensation-related claims, so they also fail. While he alleges that the hospital

restricted his on-call hours “to prevent the payment of on call wages when he was

in fact on call at times and did not receive on call pay” like some employees who

were white, this general allegation does not suffice to survive summary judgment.

Hogan was the only hospital employee working in the dialysis department, and he

has not shown that the employees outside his department were similarly situated to

him. See id.


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      Fourth, as for his allegation that the delay in his initial pay raise and the

delay in his final evaluation were based on his race, Hogan once again fails to

identify a similarly situated employee whose certification was recognized any

faster or whose 2013 evaluation came any sooner. And even if he had, the hospital

has presented undisputed evidence showing that as soon as the HR department had

Hogan’s technician certification in hand it gave him the raise and that Hogan’s

final evaluation fell within the timeframe allowed by the hospital’s employee

guidelines. Hogan has not shown that these race-neutral explanations were pretext

for race discrimination.

      Fifth, Hogan claims that his three-day suspension and his placement on a

performance improvement plan were based on his race. Suspension without pay is

unquestionably an adverse employment action, see Akins v. Fulton Cty., 420 F.3d

1293, 1301–02 (11th Cir. 2005), and we will assume that placement on the

performance improvement plan is, too. But even if both events constitute adverse

employment actions, Hogan has not shown either “(a) that he did not violate the

work rule, or (b) that he engaged in misconduct similar to that of a person outside

the protected class, and that the disciplinary measures enforced against him were

more severe than those enforced against the other persons who engaged in similar

misconduct.” Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989). It is

undisputed that Hogan arrived late for work on May 10 when he received the


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suspension and that his performance review on June 5 was overwhelmingly

negative and resulted in his placement on the improvement plan. Though Hogan

questions in his brief why these disciplinary actions occurred, the hospital

presented evidence of what the relevant work rules were and how Hogan violated

them. Given the district court’s ruling that the hospital’s motion for summary

judgment was functionally unopposed, this undisputed evidence was enough to

show that the hospital was entitled to judgment as a matter of law on this issue.

See Mann, 588 F.3d at 1302–03.

      Sixth, the district court properly granted summary judgment on Hogan’s

termination claim. To make out a prima facie case of discriminatory discharge,

Hogan must show, among other things, that “he was replaced by someone outside

of his protected class or received less favorable treatment than a similarly situated

person outside of his protected class.” Flowers v. Troup Cty., Ga., Sch. Dist., 803

F.3d 1327, 1336 (11th Cir. 2015). But Hogan has not identified a similarly

situated employee who received more favorable treatment than he did, and it is

undisputed that he was not replaced by someone outside of his protected class

because the hospital hired a black woman to replace him. The district court did not

err in granting summary judgment on this issue, either.

                                          B.




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      This leaves Hogan’s contention that the district court should not have

entered summary judgment on his retaliation claims. To establish a prima facie

case of retaliation, a plaintiff must show that (1) he engaged in a statutorily

protected expression, (2) he suffered “a materially adverse action,” and (3) “there

was a causal connection between the protected activity and the adverse action.”

Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1258 (11th Cir. 2012). For

purposes of a claim brought under Title VII, statutorily protected expression refers

to an employee (1) “oppos[ing] any practice made an unlawful employment

practice by [Title VII]” or (2) “ma[king] a charge, testif[ying], assist[ing], or

participat[ing] in any manner in an investigation, proceeding, or hearing under

[Title VII].” 42 U.S.C. § 2000e-3(a).

      The district court found that Hogan failed to show that he engaged in

statutorily protected expression, but we choose to resolve this issue on different

grounds and will assume that Hogan complained of discrimination to Urbonas and

Boyett. After arguing that the district court erred by not doing likewise, Hogan

contends that “[a] jury could find that the fact that . . . Mr. Hogan complained

about Lisa McCutchin was the but-for cause of the discriminatory actions and

retaliation that resulted in his termination.” But complaining about McCutchin’s

job performance does not qualify as a statutorily protected expression under Title

VII, so it does Hogan little good to connect his termination to that event. Nor does


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he attempt to connect his termination to the actual statutorily protected

expression — complaining of discrimination — other than to recite the timeframe

of his complaint to Boyett (May 7, 2013) and his termination (July 19, 2013). Yet

while temporal proximity between the statutorily protected activity and the adverse

employment action can be enough to make out a prima facie showing of causation,

“mere temporal proximity, without more, must be very close.” Thomas v. Cooper

Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (quotation marks omitted).

We do not think that a delay of 74 days, standing alone, meets that standard.

      Finally, even if Hogan made a prima facie case of retaliation, the hospital

has met its burden of presenting legitimate, non-discriminatory reasons for firing

him. See Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002) (applying

McDonnell Douglas burden-shifting framework in retaliation context). The

evidence shows that Hogan was not performing his job duties satisfactorily; that

the hospital placed him on a performance improvement plan; and that when his

performance did not improve, the hospital terminated him and hired someone from

the same protected class as Hogan to replace him. Hogan has not shown that these

stated justifications were merely pretext to fire him due to his race, so the district

court did not err in granting summary judgment on Hogan’s retaliation claims.

      AFFIRMED.




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