                                                                      [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                                                                              FILED
                          -------------------------------------------U.S. COURT OF APPEALS
                                       No. 07-10335                    ELEVENTH CIRCUIT
                                                                           APRIL 24, 2008
                                 Non-Argument Calendar
                         -------------------------------------------- THOMAS K. KAHN
                                                                             CLERK

                         D.C. Docket No. 05-00083-CV-T-N

JAMES H. SHORTZ,
                                                          Plaintiff-Appellant,
                                           versus

AUBURN UNIVERSITY AT MONTGOMERY,

                                                          Defendant-Appellee.

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                    Appeal from the United States District Court
                          for the Middle District of Alabama
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                                   (April 24, 2008)

Before EDMONDSON, Chief Judge, ANDERSON and HULL, Circuit Judges.

PER CURIAM:

      Plaintiff-Appellant James H. Shortz, an African-American male proceeding

pro se, appeals the district court’s grant of summary judgment in favor of his

former employer, Auburn University at Montgomery (the “University”),
dismissing his racial discrimination claim under Title VII, 42 U.S.C. § 2000e-

2(a)(1), and in favor of former University police chief Jay Gardner and Shortz’s

former supervisor Nell Robinson, dismissing his First Amendment retaliation

claim under 42 U.S.C. § 1983. No reversible error has been shown; we affirm.

      Shortz’s discrimination claim stems from his termination as a University

patrolman. In May 2003, Gardner hired Shortz as a patrolman. When he was

hired, Shortz was certified by the State of Alabama as a police officer. University

policy required Shortz to serve a probationary employment period of 180 days,

during which period the University could terminate him for “unsatisfactory job

performance” or “violation of any [University] or department rule” without prior

written or verbal warning.

      Gardner terminated Shortz during his probationary period because of

unsatisfactory job performance, based chiefly on his negative evaluation by

Robinson, who was his immediate supervisor. According to Robinson, and

another of his co-workers, Shortz consistently refused to back up, or to provide

assistance to, other police officers while on patrol. Instead, he would only provide

back-up assistance if he specifically was called to do so by the dispatcher. Such

behavior was against department policy and Robinson’s direct orders. And

because of the small size of the department, this refusal to assist compromised the

                                         2
safety of the other officers.1 Gardner replaced Shortz with an African-American

female.

        Shortz alleged that his termination was racially motivated based on the

treatment of a fellow probationary employee, Billy Price. Price, who was

Caucasian, was not certified as a police officer by the state when he was hired. In

accordance with state regulations, Price was allowed to complete his certification

during the probationary period; but he injured himself when first attempting to

complete the certification. Regulations provided that Price could have two

attempts to complete his certification, and he was allowed a second attempt by

Gardner. Shortz alleged that he, who had completed all certification requirements,

was terminated, while Price (who had initially failed certification requirements)

was not. The district court concluded that Shortz had not made a prima facie case

of race discrimination because he had not produced sufficient evidence to permit

an inference of discrimination.

        Shortz argues, as he did below, that he made a prima facie case of race

discrimination based on the University’s termination of him, but its failure to

terminate Price. We review a district court’s grant of summary judgment de novo;


    1
     In addition, Shortz was argumentative with Robinson, responded poorly to criticism, and
attempted to secretly tape record conversations between him and other department members.

                                             3
and we view the evidence and all reasonable factual inferences in the light most

favorable to the nonmoving party. Maniccia v. Brown, 171 F.3d 1364, 1367

(11th Cir. 1999).

       A plaintiff fails to establish a prima facie discrimination case if he is

replaced by a person in his protected class or fails to show that he was treated less

favorably than a similarly-situated person outside his protected class. See

Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003); see also

Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (absent other evidence of

discrimination, summary judgment properly may be granted “[i]f a plaintiff fails to

show the existence of a similarly situated employee”).2

       The district court committed no error when it concluded that Shortz had not

made a prima facie case of race discrimination. First, Shortz was replaced by an

African-American female and not someone outside his protected class. Shortz

also failed to show that Price was a valid comparator. Shortz was terminated

because of his unsatisfactory job performance: his consistent failure to back up

other officers. He did not allege, nor does the record reflect, that Price engaged in



  2
    No direct evidence of discrimination is alleged. Because this case is a circumstantial evidence
case, the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 93 S.Ct.
1817 (1973), applies. While Shortz contends that he produced direct evidence of discrimination, this
contention is plainly incorrect because his comparison to Price is circumstantial evidence.

                                                 4
similar misconduct and was not disciplined. And Shortz’s termination was

unrelated to certification requirements. See Anderson v. WBMG-42, Parker

Commc’n, Inc., 253 F.3d 561, 564 (11th Cir. 2001) (explaining that similarly-

situated comparator employees are those who are “involved in or accused of the

same or similar conduct[,] yet are disciplined in a different, more favorable

manner”) (citation omitted).

      We turn to Shortz’s section 1983 claim. He alleged that Gardner and

Robinson, in terminating him, retaliated against him for exercising his First

Amendment rights. He cited, as instances of protected constitutional activity,

disagreements he voiced to Robinson about these things: (1) police department

radio procedures; (2) her opinion that the University should police behavior, not

race; and (3) her attitude about police work. The district court determined that

these matters were not of public concern and that, thus, Shortz had not stated a

retaliation claim. On appeal, Shortz argues that the district court never applied the

correct standard in evaluating his retaliation claim.

      For a public employee to sustain a retaliation claim for speech protected

under the First Amendment, the employee must establish, among other things, that

he spoke as a citizen on a matter of public concern. Battle v. Bd. of Regents, 468

F.3d 755, 759-60 (11th Cir. 2006) (citation omitted). “[W]hen public employees

                                          5
make statements pursuant to their official duties, the employees are not speaking

as citizens for First Amendment purposes, and the Constitution does not insulate

their communications from employer discipline.” Garcetti v. Ceballos, 126 S.Ct.

1951, 1960 (2006).

         Here, the communications Shortz refers to -- discussions with Robinson

about his disagreement over radio procedures and other department policies --

were made in his capacity as an employee and were about his official duties as an

employee; they were not about a matter of public concern.3 We conclude that,

because the First Amendment does not protect a government employee fulfilling

official responsibilities, Shortz’s retaliation claim must fail. See Garcetti,

126 S.Ct. at 1961; Battle, 468 F.3d at 761-62. Contrary to Shortz’s contention, the

district court properly evaluated his claim by focusing on whether the speech in

question involved a matter of public concern.

         AFFIRMED.




  3
      Shortz concedes, in his deposition testimony, that these matters are not of public concern.

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