[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT

FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

N o . 05-14816

JULY 25, 2006

N o n - A r g u m e n t Calendar

THOMAS K. KAHN

CLERK

D . C. Docket No. 03-22323-CV-ASG

JO H N B. HAMPTON,

Plaintiff-Appellant,

versus

CITY OF SOUTH MIAMI, a Florida municipality,

CHARLES D. SCURRY,

ORLANDO MARTINEZ,

JEANETTE NAVARRO,

Defendants-Appellees.

A p p e al from the United States District Court

fo r the Southern District of Florida

(July 25, 2006)

B efo re BLACK, BARKETT and MARCUS, Circuit Judges.

P E R CURIAM:

J o h n B. Hampton, an African-American male, appeals from the district c o u r t's grant of summary judgment to the City of South Miami ("the City") as to h is claims for breach of contract and the covenant to perform in good faith, under F lo rid a law, and race discrimination, under Title VII of the Civil Rights Act of 1 9 6 4 , 42U.S.C. 2000e, et seq. ("Title VII"), 42U.S.C. §§ 1981, 1983, and the F lo rid a Civil Rights Act ("FCRA").1 On appeal, Hampton argues that, in co n n ectio n with the entry of summary judgment, the district court improperly m ad e factual findings relating to credibility and disputed evidence and failed to d raw all permissible factual inferences in favor of him. After careful review, we a f f ir m .

In the complaint, Hampton alleged that he was terminated because of his race and in retaliation after he spoke to the Mayor of the City and a City C o m m is sio n e r about (1) misuse of City personnel to maintain private vehicles at P u b lic Works Director Orlando Martinez's direction, and (2) discriminatory p r a c tic e s against African-American employees within the Public Works D ep artm en t. The City's reasons for firing Hampton included his failure to disclose o n his job application that (1) he had been arrested for having a suspended license an d for missing commercial markings on his truck; (2) prior to his resignation from h is prior job at the City of Coral Gables, he was recommended for termination after h e admitted depositing a stolen check into his own account; and (3) he previously h ad been employed by United Parcel Service ("UPS"). In his complaint, Hampton alleg ed that the foregoing reasons were pretextual and that the true reason for his te rm in a tio n was discrimination and retaliation based on race.

W e review de novo the district court's grant of a motion for summary ju d g m en t, viewing all evidence and factual inferences in the light most favorable to th e nonmoving party. Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1060 (11th C ir . 1994). "Summary judgment is appropriate where the evidence shows `that th ere is no genuine issue as to any material fact and that the moving party is en titled to a judgment as a matter of law.'265 F.3d 1186, 1192 (11th Cir. 2001) (q u o tin g Fed. R. Civ. P. 56(c)).

On appeal, Hampton first argues, in connection with the entry of summary ju d g m en t on his breach-of-contract claim and attendant covenant to perform in g o o d faith, that the City Code provides for discharge of permanent City employees o n ly for lack of "good behavior, the satisfactory performance of work, necessity fo r the performance of work, and the availability of funds." Hampton contends th a t City Manager Charles D. Scurr disregarded the Code and instead followed D irecto r Martinez's recommendation to fire Hampton for a reason (the job ap p licatio n omissions) not found within the Code. Hampton asserts that the fo llo w in g issues should have been submitted to a jury: (1) whether his failure to d isclo se two arrests on his application constituted misconduct because the arrests w ere for non-moving traffic violations; (2) whether his failure to disclose the e v e n ts preceding his resignation from his position at the City of Coral Gables co n stitu ted misconduct because his record indicates only that he voluntarily resig n ed ; and (3) whether his failure to disclose his previous employment by UPS c o n s titu te d misconduct because the City job application form requested only ten y ea rs of history. We disagree.

U n d e r Florida law, "in the absence of language in the employee manual ex p ressly providing that the manual constitutes a separate employment agreement, o r the parties' explicit mutual agreement to that effect, policy statements in the em p lo ym en t manual do not constitute the terms of a contract of employment." Q u a k e r Oats Co. v. Jewell, 818 So. 2d 574, 578 (Fla. Dist. Ct. App. 2002).

M o reo v er, in Florida, "[a]n employee may be terminated at will, without a showing o f cause, where the employment contract between the parties is indefinite as to the p erio d of employment." Linafelt v. Bev, Inc., 662 So. 2d 986, 989 (Fla. Dist. Ct.

A p p . 1995). H ere, the City's personnel policies and Code did not contain language ex p ressly providing that they constituted a separate employment agreement.

M o reo v er, even if we may infer an employment contract from the policies and p ro ced u res embodied in the Code and personnel manual, because "no definite p e r io d of employment" was included for Hampton, under Florida law he could be te rm in a te d at will. Accordingly, we discern no error in the entry of summary ju d g m en t on the breach-of-contract and covenant-to-perform-in-good-faith claims.

Turning to Hampton's discrimination claims under Title VII and the FRCA, T itle VII makes it unlawful for an employer "to discharge any individual, or o th erw ise to discriminate against any individual with respect to his compensation, te rm s , conditions, or privileges of employment, because of such individual's race, c o lo r , religion, sex, or national origin." 42U.S.C. § 2000e-2(a).2 "Where, as here, a plaintiff predicates liability under Title VII on disparate treatment and also claims lia b il ity under sections 1981 and 1983, the legal elements of the claims are id en tical." Stallworth v. Shuler, 777 F.2d 1431, 1433 (11th Cir. 1985). We apply th e analytical framework established in McDonnell Douglas Corp. v. Green, 411 U .S . 792 (1973), and Texas Dep't of Comty. Affairs v. Burdine, 450 U.S. 248 ( 1 9 8 1 ) when a Title VII plaintiff uses circumstantial evidence to prove his case.

D u r le y v. APAC, Inc., 236 F.3d 651, 655 (11th Cir. 2000).3 U n d e r the McDonnell Douglas framework, a plaintiff first must show an in feren ce of discriminatory intent, and thus carries the initial burden of establishing a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802.

T h e plaintiff's successful assertion of a prima facie case "creates a rebuttable p resu m p tio n that the employer unlawfully discriminated against her." E.E.O.C. v. J o e 's Stone Crab, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002) (citing U.S. Postal S e rv . Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983)). If the plaintiff su ccessfu lly demonstrates a prima facie case, the burden then shifts to the em p lo yer to produce evidence that its action was taken for a legitimate, nond iscrim in ato ry reason. See Joe's Stone Crab, 296 F.3d at 1272. "Should the em p lo yer meet its burden of production, the presumption of discrimination is reb u tted , and the inquiry `proceeds to a new level of specificity,' in which the p la in tiff must show that the proffered reason really is a pretext for unlawful d iscrim in atio n ." Id. at 1272-73 (quoting Burdine, 450 U.S. at 255-56). "Although th e intermediate burdens of production shift back and forth, the ultimate burden of p ersu ad in g the trier of fact that the employer intentionally discriminated against the em p lo yee remains at all times with the plaintiff." Id. at 1273.

A f te r assuming that Hampton met his initial prima facie burden, the district c o u r t proceeded to the second step of the McDonnell Douglas inquiry and held that th e City articulated legitimate, non-retaliatory reasons for its employment decision -- namely, that Hampton's employment application included falsifications and o m issio n s. At the third step of the inquiry, to establish pretext, Hampton had to d em o n strate that the proffered reason was not the true reason for the e m p lo y m e n t decision . . . [The plaintiff] may succeed in this either d ir ec tly by persuading the court that a discriminatory reason more lik ely motivated the employer or indirectly by showing that the e m p lo y e r's proferred explanation is unworthy of credence. Jack so n v. Ala. State Tenure Comm'n, 405 F.3d 1276, 1289 (11th Cir. 2005) ( alte ra tio n in original) (quotations and citation omitted). Thus, Hampton was req u ired to produce sufficient evidence to allow a reasonable finder of fact to co n clu d e that the City's articulated reasons were not believable. Id. He could do th is by pointing to "weaknesses, implausibilities, inconsistencies, incoherencies, or co n trad ictio n s" in the proferred explanation. Id.

"[T]o avoid summary judgment [the plaintiff] must introduce significantly p ro b ativ e evidence showing that the asserted reason is merely a pretext for d is cr im in a tio n ." Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1228 (11th Cir. 1 9 9 3 ) (citation omitted). A reason is not pretext for discrimination "unless it is sh o w n both that the reason was false, and that discrimination was the real reason." S t. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993).

A fter our own careful review of the record, we can find no error in the d is tr ic t court's analysis and conclusion that Hampton did not satisfy his burden at th e third step of the McDonnell Douglas inquiry. Indeed, in its thorough and wellr e a so n e d opinion, applying this Court's settled case law on the subject, the court co n sid ered and rejected virtually every argument raised in this appeal. On the b as is of the district court's thorough and well-reasoned analysis of Hampton's d iscrim in atio n claims, we affirm. A F F IR M E D .

1 After a de novo review, we find no error in the district court's disposition of Hampton's retaliation claims and, accordingly, affirm on the basis of the district court's well-reasoned analysis.

2 Federal case law interpreting Title VII is applicable to cases arising under the FCRA. See Florida State Univ. v. Sondel, 685 So.2d 923, 925 n.1 (Fla. Dist. Ct. App. 1996); see also Wilbur v. Corr. Servs. Corp., 393 F.3d 1192, 1195 n.1 (11th Cir. 2004) (noting in a retaliation case that the FCRA is patterned after Title VII and no independent analysis of the claim under the FCRA is necessary).

3 Hampton may prove a prima facie claim of discrimination through (1) direct evidence, (2) circumstantial evidence, or (3) statistical proof. See Earley v. Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990). We have "defined direct evidence as evidence, which if believed, proves the existence of fact in issue without inference or presumption." Bass v. Bd. of County Comm'rs, Orange County, Fla., 256 F.3d 1095, 1112 (11th Cir. 2001) (quotations and emphasis omitted). Because statements of discriminatory intent must be made by a person involved in the challenged decision to constitute direct evidence of discrimination, "remarks by non-decision makers or remarks unrelated to the decision-making process itself are not direct evidence of discrimination." Id. at 1105. We are unpersuaded by Hampton's argument that a racial slur made by Director Martinez constituted direct evidence of discrimination and disparate treatment, which precluded summary judgment. Because Scurr was the decision maker here and Hampton points to no direct evidence relating to Scurr, the slur by Martinez, a non-decisionmaker, does not constitute direct evidence of discrimination. Id. Moreover, on this record, we cannot find that Scurr acted as a "mere conduit" for Martinez's racial animus as it was undisputed that Scurr relied on Police Chief Cokes Watson's independent report and Hampton's predetermination hearings and did not rely solely on Martinez's "biased recommendation." See Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999).