Case: 14-11713 Date Filed: 02/03/2015 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 14-11713 Non-Argument Calendar ________________________
D.C. Docket No. 5:12-cv-00028-RS-CJK
FERENC FODOR,
Plaintiff-Appellant,
versus
EASTERN SHIPBUILDING GROUP,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(February 3, 2015)
Before ED CARNES, Chief Judge, HULL and ROSENBAUM, Circuit Judges.
PER CURIAM: Case: 14-11713 Date Filed: 02/03/2015 Page: 2 of 9
Ferenc Fodor, proceeding pro se, appeals the district court’s order granting
summary judgment to his former employer, Eastern Shipbuilding Group, on his
two employment discrimination claims: one for nationality discrimination under
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2; the other for disability
discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C.
§ 12112. He also appeals a handful of rulings ancillary to that judgment.
Eastern is a shipbuilding and marine repair company. 1 Fodor worked there
as a welder. His stint coincided with the recent oil spill in the Gulf of Mexico.
That tragedy caused Eastern to lose business, which led to layoffs and hiring
freezes. Around that same time, Fodor applied for a promotion. Neither he nor
anyone else received it because Eastern had put into effect a hiring freeze that
applied to the position. Soon afterwards, Eastern told Fodor that it had transferred
him to a different worksite. He objected without success. Fodor never reported to
his new worksite and stopped showing up for work entirely. After three
consecutive unexplained absences, Eastern terminated him.
1 Eastern filed a statement of material facts along with its summary judgment motion, which Fodor did not dispute. We thus consider those assertions to be the facts for present purposes. See Fed. R. Civ. P. 56(e)(2) (“If a party . . . fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may: . . . consider the fact undisputed for purposes of the motion . . . .”); Harrison v. Culliver, 746 F.3d 1288, 1302 n.22 (11th Cir. 2014) (holding that the failure to dispute facts and present evidence to the contrary yielded an independent basis for summary judgment).
2 Case: 14-11713 Date Filed: 02/03/2015 Page: 3 of 9
Fodor, a Hungarian-American, walks with a limp. His complaint alleged
that Eastern discriminated against him on the basis of his nationality and that
disability. While at Eastern, he reported “pranks” committed against him —
someone smeared grease on his lunch box and water bottle and damaged his
microwave and coffee maker. Afterwards, his supervisors condemned those
pranks at a staff meeting. Fodor has never alleged any links between those pranks
and his nationality or disability. Before the district court, he alleged two other
incidents: A supervisor told him that he could not lead Americans because he was
not an American, and a group of his coworkers mocked his limp. Under Eastern’s
anti-harassment policy, Fodor could have reported those incidents to any
supervisor or human resources employee. He admits that he never reported either
incident. He also admits that he never reported any other incident of harassment
during his employment.
Fodor claimed that Eastern discriminated against him based on both his
nationality and his disability. See 42 U.S.C. §§ 2000e-2(a), 12112(a). These
discrimination claims fall into two broad categories. First, he claims that Eastern
refused to promote and ultimately terminated him because of his nationality and
disability. Second, he claims that Eastern is responsible for a hostile work
environment at his worksite. The district court granted summary judgment against
3 Case: 14-11713 Date Filed: 02/03/2015 Page: 4 of 9
him on both categories, a judgment we review de novo. See Brooks v. Cnty.
Comm’n, 446 F.3d 1160, 1161–62 (11th Cir. 2006).
Fodor’s claims that Eastern refused to promote and terminated him because
of his nationality and disability are governed by the McDonnell Douglas burden-
shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S. Ct. 1817 (1973); EEOC v. Joe’s Stone Crabs, 296 F.3d 1265, 1272–73 (11th Cir.
2002); Wascura v. City of S. Miami, 257 F.3d 1238, 1242–43 (11th Cir. 2001).
Under that framework, Fodor has the initial burden of raising a presumption of
discrimination by establishing a prima facie case that Eastern discriminated against
him. See Joe’s Stone Crabs, 296 F.3d at 1272. Once that presumption is raised,
the burden shifts to Eastern to rebut it by showing a “legitimate, non-
discriminatory reason” for its actions. Id. If Eastern rebuts it, then the burden
shifts back to Fodor, who can only defeat summary judgment if he shows that
Eastern’s “proffered reason really is a pretext for unlawful discrimination.” Id. at
1273.
To review Fodor’s discrimination claims based on Eastern’s promotion and
termination decisions, we need not decide whether he established a prima facie
case of discrimination. Eastern has shown legitimate, non-discriminatory reasons
for those decisions, and he has failed to show that they are a pretext for
4 Case: 14-11713 Date Filed: 02/03/2015 Page: 5 of 9
discrimination.2 See Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002)
(assuming without deciding that the plaintiff had established a prima facie case
because the defendant had “met its burden of presenting a legitimate,
nondiscriminatory reason for its act”). Eastern presented evidence that it refused to
promote Fodor because the Gulf oil spill led to a hiring freeze that covered the
position for which he had applied, not because of his nationality or his disability.
There is no evidence in the record showing otherwise. See Hairston v. Gainesville
Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993) (“For factual issues to be
considered genuine, they must have a real basis in the record.”). Similarly, the
evidence showed that Eastern terminated Fodor because he refused to be
transferred and failed to show up in the new location for work on three consecutive
days. There is no evidence to the contrary. See id. Eastern has given legitimate,
nondiscriminatory reasons for deciding not to promote and ultimately to terminate
Fodor. He has not presented any evidence that those reasons are a pretext for
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Case: 14-11713 Date Filed: 02/03/2015 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 14-11713 Non-Argument Calendar ________________________
D.C. Docket No. 5:12-cv-00028-RS-CJK
FERENC FODOR,
Plaintiff-Appellant,
versus
EASTERN SHIPBUILDING GROUP,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Northern District of Florida ________________________
(February 3, 2015)
Before ED CARNES, Chief Judge, HULL and ROSENBAUM, Circuit Judges.
PER CURIAM: Case: 14-11713 Date Filed: 02/03/2015 Page: 2 of 9
Ferenc Fodor, proceeding pro se, appeals the district court’s order granting
summary judgment to his former employer, Eastern Shipbuilding Group, on his
two employment discrimination claims: one for nationality discrimination under
Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2; the other for disability
discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C.
§ 12112. He also appeals a handful of rulings ancillary to that judgment.
Eastern is a shipbuilding and marine repair company. 1 Fodor worked there
as a welder. His stint coincided with the recent oil spill in the Gulf of Mexico.
That tragedy caused Eastern to lose business, which led to layoffs and hiring
freezes. Around that same time, Fodor applied for a promotion. Neither he nor
anyone else received it because Eastern had put into effect a hiring freeze that
applied to the position. Soon afterwards, Eastern told Fodor that it had transferred
him to a different worksite. He objected without success. Fodor never reported to
his new worksite and stopped showing up for work entirely. After three
consecutive unexplained absences, Eastern terminated him.
1 Eastern filed a statement of material facts along with its summary judgment motion, which Fodor did not dispute. We thus consider those assertions to be the facts for present purposes. See Fed. R. Civ. P. 56(e)(2) (“If a party . . . fails to properly address another party’s assertion of fact as required by Rule 56(c), the court may: . . . consider the fact undisputed for purposes of the motion . . . .”); Harrison v. Culliver, 746 F.3d 1288, 1302 n.22 (11th Cir. 2014) (holding that the failure to dispute facts and present evidence to the contrary yielded an independent basis for summary judgment).
2 Case: 14-11713 Date Filed: 02/03/2015 Page: 3 of 9
Fodor, a Hungarian-American, walks with a limp. His complaint alleged
that Eastern discriminated against him on the basis of his nationality and that
disability. While at Eastern, he reported “pranks” committed against him —
someone smeared grease on his lunch box and water bottle and damaged his
microwave and coffee maker. Afterwards, his supervisors condemned those
pranks at a staff meeting. Fodor has never alleged any links between those pranks
and his nationality or disability. Before the district court, he alleged two other
incidents: A supervisor told him that he could not lead Americans because he was
not an American, and a group of his coworkers mocked his limp. Under Eastern’s
anti-harassment policy, Fodor could have reported those incidents to any
supervisor or human resources employee. He admits that he never reported either
incident. He also admits that he never reported any other incident of harassment
during his employment.
Fodor claimed that Eastern discriminated against him based on both his
nationality and his disability. See 42 U.S.C. §§ 2000e-2(a), 12112(a). These
discrimination claims fall into two broad categories. First, he claims that Eastern
refused to promote and ultimately terminated him because of his nationality and
disability. Second, he claims that Eastern is responsible for a hostile work
environment at his worksite. The district court granted summary judgment against
3 Case: 14-11713 Date Filed: 02/03/2015 Page: 4 of 9
him on both categories, a judgment we review de novo. See Brooks v. Cnty.
Comm’n, 446 F.3d 1160, 1161–62 (11th Cir. 2006).
Fodor’s claims that Eastern refused to promote and terminated him because
of his nationality and disability are governed by the McDonnell Douglas burden-
shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S. Ct. 1817 (1973); EEOC v. Joe’s Stone Crabs, 296 F.3d 1265, 1272–73 (11th Cir.
2002); Wascura v. City of S. Miami, 257 F.3d 1238, 1242–43 (11th Cir. 2001).
Under that framework, Fodor has the initial burden of raising a presumption of
discrimination by establishing a prima facie case that Eastern discriminated against
him. See Joe’s Stone Crabs, 296 F.3d at 1272. Once that presumption is raised,
the burden shifts to Eastern to rebut it by showing a “legitimate, non-
discriminatory reason” for its actions. Id. If Eastern rebuts it, then the burden
shifts back to Fodor, who can only defeat summary judgment if he shows that
Eastern’s “proffered reason really is a pretext for unlawful discrimination.” Id. at
1273.
To review Fodor’s discrimination claims based on Eastern’s promotion and
termination decisions, we need not decide whether he established a prima facie
case of discrimination. Eastern has shown legitimate, non-discriminatory reasons
for those decisions, and he has failed to show that they are a pretext for
4 Case: 14-11713 Date Filed: 02/03/2015 Page: 5 of 9
discrimination.2 See Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002)
(assuming without deciding that the plaintiff had established a prima facie case
because the defendant had “met its burden of presenting a legitimate,
nondiscriminatory reason for its act”). Eastern presented evidence that it refused to
promote Fodor because the Gulf oil spill led to a hiring freeze that covered the
position for which he had applied, not because of his nationality or his disability.
There is no evidence in the record showing otherwise. See Hairston v. Gainesville
Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993) (“For factual issues to be
considered genuine, they must have a real basis in the record.”). Similarly, the
evidence showed that Eastern terminated Fodor because he refused to be
transferred and failed to show up in the new location for work on three consecutive
days. There is no evidence to the contrary. See id. Eastern has given legitimate,
nondiscriminatory reasons for deciding not to promote and ultimately to terminate
Fodor. He has not presented any evidence that those reasons are a pretext for
discrimination. Eastern was entitled to summary judgment on his nationality and
disability discrimination claims.
2 The showing required to establish a prima facie case of discrimination is different under Title VII and the ADA. Compare Joe’s Stone Crabs, 296 F.3d at 1273 (prima facie case under Title VII), with Wascura, 257 F.3d at 1242 (prima facie case under the ADA). Because we do not decide whether Fodor established a prima facie case under either standard, we need not discuss those differences.
5 Case: 14-11713 Date Filed: 02/03/2015 Page: 6 of 9
Fodor next claims that Eastern discriminated against him by creating a
hostile work environment. To establish a hostile work environment, he must show
that nationality and disability harassment were “sufficiently severe or pervasive [at
Eastern] to alter the terms and conditions of work.” Baldwin v. Blue Cross/Blue
Shield of Ala., 480 F.3d 1287, 1300 (11th Cir. 2007). Even if Fodor shows “severe
or pervasive” harassment, Eastern still can avoid liability with the so-called
Faragher/Ellerth affirmative defense. See Faragher v. City of Boca Raton, 524
U.S. 775, 118 S. Ct. 2275 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742,
118 S. Ct. 2257 (1998). That defense has two elements: (1) Eastern must have
“exercised reasonable care to prevent and promptly correct harassing behavior”;
and (2) Fodor must have “unreasonably failed to take advantage of any
preventative or corrective opportunities.” Frederick v. Sprint/United Mgmt. Co.,
246 F.3d 1305, 1313 (11th Cir. 2001) (quoting Faragher, 524 U.S. at 807, 118
S. Ct. at 2293). We need not decide whether Fodor has established a hostile work
environment because Eastern has demonstrated both elements of the
Faragher/Ellerth affirmative defense. See Walton v. Johnson & Johnson Servs.,
Inc., 347 F.3d 1272, 1285–93 (11th Cir. 2003) (assuming a hostile work
environment and moving on to the Faragher/Ellerth defense).
Eastern’s anti-harassment policy satisfies the first element, which requires it
to take “reasonable care” to prevent and correct harassment. See id. at 1286 (“The
6 Case: 14-11713 Date Filed: 02/03/2015 Page: 7 of 9
Court in Faragher implied that employers could meet the initial burden in
determining whether they had exercised reasonable care to prevent sexual
harassment by promulgating an anti-harassment policy.”) (quotation marks
omitted). The policy allowed victims of harassment to report it to any supervisor
or human resources employee, and it prohibited retaliation. See id. (“At a
minimum, employers must establish a complaint procedure designed to encourage
victims of harassment to come forward without requiring a victim to complain first
to the offending supervisor.”) (brackets omitted) (quotation marks omitted).
Fodor’s failure to report any nationality or disability harassment satisfies the
second element of the defense, which requires proof that he “unreasonably failed to
take advantage of” Eastern’s preventive measures, namely its anti-harassment
policy. See Faragher, 524 U.S. at 807–08, 118 S. Ct. at 2293 (“[P]roof that an
employee failed to . . . use any complaint procedure provided by the employer . . .
will normally suffice to satisfy the employer’s burden under the second element of
the defense.”). He did report the “pranks” that resulted in some damage to his
personal property, and Eastern promptly put a stop to them. But he never alleged a
link between those incidents and his nationality or disability, and he never reported
the two other incidents he now alleges happened — the comment about his
inability to lead Americans and his coworkers mocking his limp. See Walton, 347
F.3d at 1290 (placing on the plaintiff “an obligation to use reasonable care to avoid
7 Case: 14-11713 Date Filed: 02/03/2015 Page: 8 of 9
harm” by reporting harassment to his employer). Because Fodor never gave
Eastern “an opportunity to address the situation and prevent further harm from
occurring,” id., and because Eastern took reasonable care to prevent harassment
beforehand, the Faragher/Ellerth defense shielded Eastern from liability for a
hostile work environment.
Separately from those discrimination claims, Fodor contends that the district
court erred by denying one of his discovery requests and refusing to appoint him
counsel. We review both contentions for an abuse of discretion. See Josendis v.
Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1306 (11th Cir. 2011); Bass
v. Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999). Because Fodor has not shown that
the district court relied on a clearly erroneous fact, an incorrect conclusion of law,
an improper application of law to fact, a procedural error, or a clear error in
judgment, he has failed to show that the district court abused its discretion in either
case. Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1248 (11th Cir. 2014) (“An
abuse of discretion occurs where the district court’s decision rests upon a clearly
erroneous finding of fact, an errant conclusion of law, or an improper application
of law to fact.”) (quotation marks omitted); Rodriguez v. Fla. Dep’t of Corr., 748
F.3d 1073, 1075 (11th Cir. 2014) (“A District Court abuses its discretion when it
applies the wrong law, follows the wrong procedure, bases its decision on clearly
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erroneous facts, or commits a clear error in judgment.”) (quotation marks
omitted). 3
AFFIRMED.
3 Fodor also asserts that there was a vast conspiracy against him throughout this case, including the district court clerk, the magistrate judge, the district judge, and another panel of this Court. The only fact he alleges to support that conspiracy is that Eastern biased each official against him by means of campaign contributions. None of the officials involved is elected, so his assertion is illogical.