                                                                     [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                               No. 10-15742         ELEVENTH CIRCUIT
                                                                    SEPTEMBER 29, 2011
                                           Non-Argument Calendar
                                                                         JOHN LEY
                                         ________________________
                                                                          CLERK

                                D.C. Docket No. 1:09-cv-20079-WJZ



JEAN-BAPTISTE EDMOND,

lllllllllllllllllllllllllllllllllllllll                              lPlaintiff - Appellant,

                                                  versus

UNIVERSITY OF MIAMI,

llllllllllllllllllllllllllllllllllllll                             llDefendant - Appellee.

                                     ________________________

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

                                            (September 29, 2011)

Before WILSON, MARTIN, and BLACK, Circuit Judges.

PER CURIAM:
       Jean-Baptiste Edmond appeals from the district court’s grant of summary

judgment in favor of the University of Miami (“University”), in Edmond’s suit

alleging race and national origin discrimination, retaliation, and hostile work

environment, brought pursuant to the Civil Rights Act of 1966, 42 U.S.C. § 1981,

and the Florida Civil Rights Act of 1992 (“FCRA”), Fla. Stat. § 760. Edmond

argues on appeal that the district court erred by granting summary judgment in

favor of the University on each of his underlying claims.1 After a thorough review

of the record and the parties’ briefs, we affirm.

                                                I.

       Edmond, a black male born in Haiti, filed an amended complaint against his

former employer, the University of Miami, asserting claims for discrimination

based on race and national origin, retaliation, and hostile work environment,

pursuant to § 1981 and the FCRA. Edmond alleges that he was employed as a

registered nurse from January 2007 until April 2008. He argues that during that

time, (1) he was subjected to derogatory comments and negative treatment based

on his race and national origin, (2) his supervisor fabricated performance “write-


       1
         Edmond also argues that the district court’s denial of certain discovery requests
constitutes an abuse of discretion. But these denials were ordered by the magistrate judge
assigned to Edmond’s case, and Edmond did not appeal the relevant orders to the district court.
As a result, we lack jurisdiction to review these denials. See United States v. Schultz, 565 F.3d
1353, 1359–60 (11th Cir. 2009).

                                                2
ups” and only advised him of them in February 2008, and (3) he was ultimately

terminated as retaliation for complaining about these discriminatory acts. He

concedes, however, that during this time he received at least some performance

“write-ups” (negative performance citations stemming from perceived inadequate

conduct). Edmond responded to these write ups on March 1, 2008, but was then

terminated on April 10, 2008.

       Shortly thereafter, Edmond brought the underlying discrimination lawsuit.

Following discovery, the magistrate judge issued a report and recommendation, in

which she recommended granting summary judgment in favor of the University.

The district court adopted this report and recommendation in full, and accordingly

granted summary judgment in the University’s favor.

       On appeal, Edmond argues that the district court erred in granting summary

judgment because disputed issues of fact remain on each of his underlying claims.

We address these arguments in turn.2


       2
          This Court reviews a district court’s grant of summary judgment de novo and applies the
same legal standards that governed the district court’s analysis. Penley v. Eslinger, 605 F.3d 843,
848 (11th Cir. 2010). Summary judgment is proper if the “movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The district court must view the facts and make any reasonable inferences
that may be drawn from those facts in the light most favorable to the non-moving party. Penley,
605 F.3d at 848. However, the inferences must be supported by the record, and a genuine dispute
of material fact requires more than “some metaphysical doubt as to the material facts.” Id.
(quotation marks omitted). Furthermore, a dispute of fact “will only preclude summary judgment
if the dispute might affect the outcome of the suit under the governing law.” Id. (quotation marks

                                                3
                                                II.

       Edmond argues first that he has sufficiently articulated a prima facie case of

discrimination on grounds of race and national origin, which precludes summary

judgment in this case. We cannot agree.

       Discrimination claims under § 1981 and the FCRA are governed by the

same requirements of proof and the same analytical framework applicable to Title

VII claims. Smith, et al., v. Lockheed-Martin Corp., 644 F.3d 1321, 1325 n.14

(11th Cir. 2011) (§ 1981 discrimination claims); Harper v. Blockbuster Entm’t

Corp.,139 F.3d 1385, 1387 (11th Cir. 1998) (FCRA discrimination claims). Thus,

a plaintiff may prove a claim of discrimination through circumstantial evidence

under the three-step, burden-shifting framework established by the Supreme Court

in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802–05, 93 S. Ct. 1817,

1824–26 (1973), or alternatively, by presenting circumstantial evidence that

creates a triable issue concerning the employer’s discriminatory intent. Smith, 644

F.3d at 1325 (stating that “the McDonnell-Douglas framework is not, and never


omitted). Thus, a court must deny summary judgment only if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party. Id.
        Moreover, because our review is de novo, we need not consider Edmond’s initial
argument that the magistrate judge failed to exercise independent judgment in her recitation of
the facts. Even if there was any error below, it will be remedied by our “independent
consideration of all facts properly before [us].” United States v. Gaviria, 828 F.2d 667, 670 (11th
Cir. 1987).


                                                4
was intended to be, the sine qua non for a plaintiff to survive a summary judgment

motion in an employment discrimination case”). Here, however, Edmond argues

only that he has set forth a prima facie case.

      Under the McDonnell-Douglas framework, the plaintiff must first establish

a prima facie case to raise the presumption that his employer was motivated to

treat him unfavorably on the basis of his protected status—including race or

national origin. See id. at 1325. When the plaintiff claims that he was terminated

on account of his protected status, he must establish four elements: (1) that he is a

member of the protected class; (2) that he was qualified for the position that he

held; (3) that he was discharged from that position; and (4) that in terminating his

employment, his employer treated him less favorably than a similarly situated

individual outside of his protected class. Id. Under the fourth element of this

standard, to be an adequate comparator, the preferentially treated individual must

be from outside the plaintiff’s protected class and must be similarly situated in all

respects, including having been involved in or accused of the same or similar

conduct. Id. at 1326 n.17.

      We find that Edmond has failed to identify an appropriate similarly situated

individual to satisfy the fourth element of the McDonnell-Douglas framework. In

his briefing to this Court and in proceedings prior to this appeal, Edmond

                                           5
identifies only one such person who he argues is such a similarly situated

individual. Yet this individual, although employed in the same job as was

Edmond, also shares his race and national origin. She is thus not “outside of his

classification” for purposes of establishing the prima facie case. See generally

Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). As a result, because this

is the only individual identified by Edmond as a comparator for purposes of

making his claim, we find that summary judgment is appropriate in favor of the

University on Edmond’s discrimination claims.

                                         III.

      Edmond next argues that the district court erred in granting summary

judgment in favor of the University on his retaliation claim. To establish a claim

of retaliation under Title VII or section 1981, a plaintiff must prove that he

engaged in statutorily protected activity, he suffered a materially adverse action,

and there was some causal relation between the two events. Goldsmith v. Bagby

Elevator Co., Inc., 513 F.3d 1261, 1277 (11th Cir. 2008); see also Alvarez v.

Royal Atlantic Developers, Inc., 610 F.3d 1253, 1271 (11th Cir. 2010) (stating

that retaliation claims brought under the FCRA are analyzed under the same

framework as Title VII). After the plaintiff has established the elements of a

claim, the employer has an opportunity to articulate a legitimate, nonretaliatory

                                          6
reason for the challenged employment action as an affirmative defense to liability.

Goldsmith, 513 F.3d at 1277. The plaintiff bears the ultimate burden of proving

by a preponderance of the evidence that the reason provided by the employer is a

pretext for prohibited retaliatory conduct. Id.

      We conclude that Edmond has not satisfied his burden of showing that the

University’s asserted legitimate, non-discriminatory reason for terminating him

was merely pretext for retaliation. Here, the University asserts that Edmond’s

poor performance placed patients in danger and otherwise fell below acceptable

employment standards. Edmond argues that the University’s explanation is

pretextual, but in so doing relies largely on his own averments that he was a high-

performing employee. This is insufficient to satisfy his evidentiary burden at

summary judgment. See Elrod v. Sears, Roebuck and Co., 939 F.2d 1466, 1471

(11th Cir. 1991) (“Conclusory allegations of discrimination, without more, are not

sufficient to raise an inference of pretext or intentional discrimination where [an

employer] has offered . . . extensive evidence of legitimate, non-discriminatory

reasons for its action.” (quotation marks omitted)). Morever, while Edmond has

identified one witness that is equivocal regarding the motivation of a supervisor

that publicly reprimanded Edmond, we find this to fall short of the “significantly

probative evidence showing that the asserted reason is merely a pretext” that we

                                          7
have required in previous retaliatory conduct cases. See Clark v. Coats & Clark,

Inc., 990 F.2d 1217, 1228 (11th Cir. 1993). Therefore, we find that summary

judgment is appropriate in favor of the University on Edmond’s retaliation claim.

                                           IV.

      Finally, Edmond argues that the University is not entitled to summary

judgment on his claim that he was subjected to a hostile work environment. To

establish a hostile work environment claim under section 1981, a plaintiff must

show harassing behavior sufficiently severe or pervasive to alter the conditions of

his employment. Bryant v. Jones, 575 F.3d 1281, 1296 (11th Cir. 2009). This

requires that the plaintiff prove: (1) that he belongs to a protected group; (2) that

he was subject to unwelcome harassment; (3) that the harassment was based on a

protected characteristic of the employee, such as race or national origin; (4) that

the harassment was sufficiently severe or pervasive to alter the terms and

conditions of employment and create a discriminatorily abusive working

environment; and (5) that the employer is responsible for such environment under

either a theory of vicarious or of direct liability. Id.

      The fourth element requiring that the harassment be sufficiently severe or

pervasive contains both subjective and objective components. Id. at 1297. To be

actionable, the harassment must result in both an environment that a reasonable

                                            8
person would find hostile or abusive and an environment that the plaintiff

subjectively perceived to be abusive. Id. The objective element is not subject to

mathematical precision, but this Court can infer that an environment is “hostile” or

“abusive” from the circumstantial facts viewed in their proper context. Id. This

requires the Court to look to factors such as the frequency of the discriminatory

conduct; its severity; whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with an employee's

work performance. Id.

      Edmond has failed to show that he suffered from harassment rising to the

level of severity or pervasiveness required to establish a hostile work environment

claim. In support of his claim, he argues that “he was subjected to unwelcome

harassment including . . . telling him that he has a Haitian accent; . . . yelling at

him in the presence of patients, family members and co-workers; assigning [him]

patients who have animosity against Haitians; and calling [a coworker] to interpret

for [him] in the presence of others.” This evidence certainly shows that Edmond

and James had a difficult relationship, but does not indicate that he regularly

suffered from severe or pervasive hostile conduct. Rather, and largely in light of

its infrequency, it is the sort of interaction that falls to satisfy Bryant’s objective




                                            9
standard. 575 F.3d at 1297. Therefore, we find the University to be entitled to

summary judgment on this claim as well.



                                        V.

      Accordingly, we affirm the district court’s grant of summary judgment in

favor of the University on each of Edmond’s discrimination claims.

      AFFIRMED.




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