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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-11671
Non-Argument Calendar
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D.C. Docket No. 2:16-cv-01843-KOB
ERIC BROWN,
Plaintiff - Appellant,
versus
JEFFERSON COUNTY SHERIFF'S DEPARTMENT, et al.,
Defendants,
MARK PETTWAY,
in his official capacity as Sheriff of Jefferson County, Alabama,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
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(March 13, 2020)
Before WILLIAM PRYOR, ROSENBAUM, and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Eric Brown, a deputy sheriff with the Jefferson County Sheriff’s Office
(“Sheriff’s Office”), appeals the district court’s grant of summary judgment in favor
of Mark Pettway, the Sheriff of Jefferson County (“Sheriff”), on his claim of race
discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”).1 After
careful review, we affirm the district court.
I.
Brown, an African-American man, has worked as a deputy sheriff for the
Sheriff’s Office since 2002. He was in the patrol division at the time of the events
relevant to this case.
In 2013, Brown, along with several other parties, purchased a 1969 Chevrolet
Camaro for nearly $80,000. Brown also signed a purchase agreement for a 1967
Ford Mustang for $43,000.
Drug Enforcement Agency (“DEA”) agents seized both cars in October 2013.
The government then filed a civil forfeiture action in April 2014, alleging that the
cars were used to launder illicit drug money. The DEA publicly identified Brown
as a deputy sheriff under investigation for drug-related money-laundering crimes.
On the same day as the DEA’s public announcement of its active
investigation, April 10, 2014, the Sheriff placed Brown on administrative leave with
1
Brown also alleged a claim of age discrimination under the Age Discrimination in
Employment Act (“ADEA”). The district court dismissed the ADEA claim on May 5, 2017, and
Brown does not challenge that ruling on appeal.
2
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pay. On June 12, 2014, with the DEA investigation still ongoing, the Sheriff placed
Brown on administrative leave without pay. Brown remained on administrative
leave without pay until June 11, 2015. Personnel rules prohibited the Sheriff from
keeping Brown on administrative leave without pay for longer than one year.
Brown returned to work on June 12, 2015, with the DEA investigation still
ongoing. Upon his return, the Sheriff involuntarily transferred Brown from the
patrol division to the corrections division and placed him under several
administrative restrictions. He was not permitted to take a patrol car home, to wear
a uniform outside the correctional facility, or to make any arrests or perform any
duties outside the correctional facility.
The Sheriff claimed that he transferred Brown and placed him under
administrative restrictions because he “was concerned that the on-ongoing federal
investigation and on-going civil forfeiture action . . . would taint any arrest Deputy
Brown had to make and any testimony he had to give concerning such an arrest.”
Randy Christian, the Chief Deputy, submitted an affidavit elaborating that the patrol
division involved making arrests and having to testify in court, which could be
tainted by the unresolved federal proceedings. Likewise, if Brown were driving a
police vehicle or wearing his uniform outside the jail, according to Christian, the
public would expect him to potentially make an arrest, and, again, the unresolved
federal proceedings could taint the arrest and any testimony.
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Once the federal investigations ended, the Sheriff lifted the administrative
restrictions and permitted Brown to transfer to the patrol division at the next opening.
After receiving his right-to-sue letter, Brown filed a counseled federal lawsuit
in November 2016 under Title VII. In Count One of the operative amended
complaint, he alleged that “[o]n June 11, 2015, Defendant discriminated against
Plaintiff . . . [because of his race] when Defendant involuntarily reassigned the
Plaintiff to the Corrections Division with restrictions.” He did not identify any other
alleged discriminatory conduct in Count One.
The Sheriff filed a motion for summary judgment, which the district court
granted. In relevant part, the district court concluded that (a) Brown’s case was
limited to his involuntary transfer and administrative restrictions, despite his efforts
at summary judgment to challenge his placement on administrative leave; (b) the
administrative restrictions, but not the involuntary transfer, constituted an “adverse
employment action” that was actionable under Title VII; and (c) the Sheriff’s
proffered reason for imposing the administrative restrictions was not pretextual.
Brown now appeals, challenging each of these conclusions.
II.
We first address the district court’s decision to limit Brown’s claim to his
involuntary transfer and administrative restrictions. A complaint must contain “a
short and plain statement of the claim showing that the pleader is entitled to relief,”
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Fed. R. Civ. P. 8(a), “in order to give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,
550 U.S. 544,
555 (2007) (quotation marks omitted).
“Despite the liberal pleading standard for civil complaints, plaintiffs may not
raise new claims at the summary judgment stage.” White v. Beltram Edge Tool
Supply, Inc.,
789 F.3d 1188, 1200 (11th Cir. 2015) (quotation marks omitted). The
proper procedure for plaintiffs to assert a new claim is to amend the complaint in
accordance with Rule 15, Fed. R. Civ. P. Gilmour v. Gates, McDonald & Co.,
382
F.3d 1312, 1315 (11th Cir. 2004). “A plaintiff may not amend her complaint through
argument in a brief opposing summary judgment.”
Id.
Here, the district court properly refused to consider any claim based on
Brown’s placement on administrative leave. Although the amended complaint
contains facts relating to administrative leave, they were not incorporated in Count
One, which alleged race discrimination. The only discriminatory conduct alleged in
Count One took place “[o]n June 11, 2015, . . . when Defendant involuntarily
reassigned the Plaintiff to the Corrections Division with restrictions.” As a result,
Brown’s complaint failed to provide fair notice to the Sheriff that Brown intended
to challenge any other conduct as discriminatory. Moreover, Brown did not seek to
amend the complaint and instead raised the new claim in opposition to summary
judgment. Because “plaintiffs may not raise new claims at the summary judgment
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stage,”
White, 789 F.3d at 1200, the district court properly declined to consider
Brown’s new claim based on his placement on administrative leave.
III.
We next consider whether the district court erred in granting summary
judgment to the Sheriff. We review that decision de novo, viewing the record and
drawing all reasonable inferences in favor of the nonmoving party. Boyle v. City of
Pell City,
866 F.3d 1280, 1288 (11th Cir. 2017). Summary judgment is appropriate
if “the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
The district court’s function at summary judgment is to determine “whether
there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242,
249 (1986). Summary judgment should not be granted if “there is sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that party.”
Id. at 249. But if the evidence presented by the nonmoving party is “merely
colorable” or not “significantly probative,” summary judgment may be granted.
Id.
at 249–50; see Walker v. Darby,
911 F.2d 1573, 1577 (11th Cir. 1990) (“A mere
‘scintilla’ of evidence supporting the opposing party’s position will not suffice.”).
Under Title VII, it is unlawful for an employer to “discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of [his] race.” 42 U.S.C. § 2000e-2(a)(1). In evaluating
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claims under Title VII, we generally apply the burden-shifting framework set out in
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), under which the plaintiff
must first establish a prima facie case of discrimination.2 Lewis v. City of Union
City, Ga.,
918 F.3d 1213, 1220 (11th Cir. 2019) (en banc).
To establish a prima facie case, the plaintiff must show: (1) he was a member
of a protected group; (2) he was qualified for the position; (3) he suffered an “adverse
employment action”; and (4) the employer treated similarly situated employees
outsider his class more favorably.
Id. at 1220–21. If a plaintiff successfully
establishes a prima facie case, the burden shifts to the employer to articulate a
legitimate, nondiscriminatory reason for its action.
Id. at 1221. If the employer
meets that burden, the plaintiff then has the “opportunity to demonstrate that the
proffered reason was not the true reason for the employment decision,” an obligation
that “merges with the ultimate burden of persuading the [factfinder] that []he has
been the victim of intentional discrimination.” Texas Dep’t of Cmty. Affairs v.
Burdine,
450 U.S. 248, 256 (1981).
A.
Brown disputes the district court’s conclusion that his involuntary transfer to
the corrections division was not an actionable “adverse employment action.”
2
The McDonnell Douglas framework is not the only way to prove a claim of
discrimination, see Lewis v. City of Union City, Ga.,
918 F.3d 1213, 1220 n.6 (11th Cir. 2019), but
the parties present their arguments solely under McDonnell Douglas.
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“Not 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). “An employment action is considered ‘adverse’ only if it results
in some tangible, negative effect on the plaintiff’s employment.” Lucas v. W.W.
Grainger, Inc.,
257 F.3d 1249, 1261 (11th Cir. 2001). The “employee must show a
serious and material change in the terms, conditions, or privileges of employment .
. . as viewed by a reasonable person in the circumstances.”
Davis, 245 F.3d at 1239;
Doe v. Dekalb Cty. Sch. Dist.,
145 F.3d 1441, 1448 (11th Cir. 1998) (the plaintiff
“must demonstrate that a reasonable person in his position would view the
employment action in question as adverse”). “[A] transfer to a different position can
be ‘adverse’ if it involves a reduction in pay, prestige or responsibility.” Hinson v.
Clinch Cty., Ga. Bd. of Educ.,
231 F.3d 821, 829 (11th Cir. 2000).
Here, the district court did not err when it determined that Brown’s transfer to
the corrections division was not an adverse employment action because the transfer
itself did not result in a “serious and material change in the terms, conditions, or
privileges” of his employment.
Davis, 245 F.3d at 1238. There was no material
change in pay. In fact, the evidence showed that Brown earned more salary in
corrections than he had in patrol. Brown claims that he lost his seniority for patrol
and was required to undergo a month of training once he returned to patrol. But the
evidence fails to show with any specificity that a reasonable person in his situation
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would view these minor consequences as a “serious and material” change in
“prestige or responsibility.” See
Hinson, 231 F.3d at 829;
Doe, 145 F.3d at 1448.
Brown also invokes the administrative restrictions he was placed under, but
the district court found that these restrictions were actionable separate from his
transfer to corrections. In any case, to the extent that the transfer and restrictions
were intertwined, the Sheriff proffered essentially the same legitimate,
nondiscrimination reason for both decisions: keeping Brown from having to make
an arrest and potentially testify. So even if we assume that the transfer was an
adverse employment action, our analysis of that decision will be identical to our
analysis of the decision to impose administrative restrictions. For that reason, any
error by the district court in concluding that the transfer was not an adverse
employment action is harmless. We consider both decisions below.
B.
Brown maintains that he demonstrated that the Sheriff’s proffered reason for
transferring him and placing him under administrative restrictions was pretextual by
showing “a severe discrepancy between his treatment pending the investigation and
that of the white deputy investigated for rape.” Brown asserts that the Sheriff’s
rationale for his transfer and restrictions would also apply to that white deputy, but
the deputy was not subject to any restrictions during the investigation. 3
3
Brown’s briefing on appeal does not address any of the other comparators he relied on in
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A plaintiff may support a showing a pretext with evidence that the employer
treated valid comparators outside the plaintiff’s protected class better than the
plaintiff. Rioux v. City of Atlanta, Ga.,
520 F.3d 1269, 1280 (11th Cir. 2008). A
valid comparator must be “similarly situated in all material respects” to the plaintiff.
Lewis, 918 F.3d at 1224. Ordinarily, a “similarly situated comparator” will “have
engaged in the same basic conduct (or misconduct) as the plaintiff”; “have been
subject to the same employment policy, guideline, or rule as the plaintiff”’;
“ordinarily (although not invariably) have been under the jurisdiction of the same
supervisor as the plaintiff”; and “share the plaintiff’s employment or disciplinary
history.”
Id. at 1227–28. In short, “a valid comparison will turn not on formal labels,
but rather on substantive likeness.”
Id. at 1228. Nevertheless, “[a]n employer is
well within its rights to accord different treatment to employees who are differently
situated in ‘material respects.’”
Id.
Here, Brown failed to show that the Sheriff’s proffered non-discriminatory
reason for transferring him and placing him under administrative restrictions was not
the true reason for those decisions. First, we conclude that the white deputy
investigated for rape was not similarly situated in all “material” respects. The record
shows that the Sheriff did not place any restrictions on a white deputy while he was
the district court, so we conclude that he has abandoned any reliance on these comparators. See
Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 680 (11th Cir. 2014) (issues not raised on
appeal are abandoned).
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investigated by an outside law-enforcement agency for a one-month period, after
which no charges were brought. In contrast, at the time Brown was transferred and
placed under administrative restrictions, the investigation had been ongoing for more
than a year with no indication of when or how it would end. And unlike in Brown’s
situation, there is no evidence that the white deputy was publicly connected to the
crime by the investigating agency, let alone a federal agency like the DEA. These
differences prevent any meaningful comparison between the treatment of Brown and
the white deputy.
Second, even assuming the white deputy was similarly situated, summary
judgment was still appropriate because Brown’s pretext evidence was not
“significantly probative.”
Anderson, 477 U.S. at 249; see
Walker, 911 F.2d at 1577
(“A mere ‘scintilla’ of evidence supporting the opposing party’s position will not
suffice.”). Brown does not dispute the district court’s statement that the Sheriff
“provided three examples of deputies outside Mr. Brown’s protected class who
received similar or identical administrative restrictions when they were under active
investigation, either internally or otherwise.” That, in turn, significantly diminishes
the probative value of Brown’s comparator evidence. And Brown does not identify
any other evidence indicating that the Sheriff’s explanation of its decisions was
untruthful. On the record as a whole, we agree with the district court that no
reasonable jury could conclude from the single and aberrant instance of differential
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treatment that the Sheriff’s explanation was unworthy of credence and that Brown’s
race was the true reason for the conduct. See
Burdine, 450 U.S. at 256.
For these reasons, we affirm the grant of summary judgment against Brown.
AFFIRMED.
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