[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILED

U .S . COURT OF APPEALS

E L E V E N T H CIRCUIT

F e b r u a r y 3, 2006

N o . 05-13001 T H O M A S K. KAHN

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

D . C. Docket No. 04-00078-CV-ORL-28-KRS

S Y L V E S T E R JONES,

Plaintiff-Appellant,

versus

UNITED SPACE ALLIANCE, L.L.C.,

Defendant-Appellee.

A p p e al from the United States District Court

fo r the Middle District of Florida

(F eb ru a ry 3, 2006)

B efo re TJOFLAT, CARNES and BARKETT, Circuit Judges.

P E R CURIAM:

S ylv ester Jones, proceeding pro se, appeals the district court's denial of

v a r io u s discovery motions and its award of summary judgment to United Space A llian ce on Jones' claims under Title VII of the Civil Rights Act of 1964 and the F lo rid a Civil Rights Act. Jones also appeals the district court's order striking his m o tio n for reconsideration of summary judgment. We affirm.

I.

Jo n es, who is an African American male, worked as a senior reliability en g in eer for United Space, where he was employed from 1987 until 2002. After he w a s terminated by United Space, he filed a complaint claiming racial d iscrim in atio n and alleging the following: because of his race, he was singled out an d placed on a performance improvement plan (PIP) in November 2001; while on th e PIP, he was not able to confer with other engineers except through a supervisor an d was verbally reprimanded for speaking with an African American female en g in eer; his completion of the PIP was impeded because his supervisor failed to ad h ere to it and failed to follow internal operating procedures; and after his term in atio n , he was replaced by a Caucasian employee. With regard to his hostile w o rk environment claim, Jones also alleged the following: his manager made d ero g ato ry remarks to him based on his religion; a co-worker removed from the c o m m u n ity bulletin board a flyer describing events at Jones' church; his manager to ld him to remove the lanyard for his identification badge because it had the name "J es u s " on it; his manager told him not to leave his bible on his desk; he was asked to turn down the religious music that he played at work; he was accused of having a conflict of interest with the space program because he was a pastor; and he was p laced on a PIP because of his religion.

In its answer to Jones' complaint, United Space alleged that it had taken no d iscrim in ato ry action against Jones and that it had placed him on a PIP because of p erfo rm an ce deficiencies. United Space contended that it terminated Jones after he p ro v ed unwilling or unable to meet the expectations set forth in the PIP.

After the discovery deadline, United Space filed a motion for summary ju d g m en t. Jones filed a motion to compel the production of various documents, a n d the magistrate judge denied the motion, finding that the discovery period had alread y ended and that Jones had failed to explain why his motion could not have b een filed prior to the close of discovery. Jones then filed a motion to re-open or e x te n d discovery, arguing that United Space had not responded to discovery req u ests throughout 2004. The magistrate judge also denied this motion, finding th at Jones had not shown good cause why the parties should not adhere to the d e a d lin e for the close of discovery. Jones did not ask the district court to review eith er decision.

T h e district court considered United Space's motion for summary judgment an d found that the incidents Jones alleged were not sufficiently severe to support a c la im of a hostile work environment. The court determined that Jones had e sta b lis h e d a prima facie case of discrimination because Jones had been replaced w h en his work was redistributed to other employees. The district court noted that, u n lik e some other circuits, this Court's precedent does not establish that when an em p lo yer redistributes a former employee's work to current employees, no "rep lacem en t" occurs.

The district court also found that United Space had articulated a legitimate, n o n d is cr im in a to r y reason for terminating Jones based on substandard performance a n d failure to complete the PIP. The court concluded that Jones failed to create a g e n u in e issue of material fact regarding whether United Space's reasons were p r e te x tu a l because the record did not reveal any evidence that United Space was m o tiv ated by racial or religious discrimination. The court stated that it would not seco n d -g u ess United Space's business decision, and in an order dated April 26, 2 0 0 5 , it granted summary judgment in favor of United Space.

Jo n es filed a motion for reconsideration of summary judgment with the d istrict court. United Space filed a motion to strike Jones' motion for reco n sid eratio n and argued that because Jones had filed the motion pro se while he m ain tain ed counsel of record, Jones' motion violated Middle District of Florida L o ca l Rule 2.03(d). On May 13, 2005, the district court granted United Space's m o tio n and struck Jones' motion for reconsideration from the record. Jones filed a p ro se notice of appeal. The notice of appeal referred to the April 26, 2005 ju d g m en t but did not mention the May 13, 2005 order or the motion for reco n sid eratio n . The appellate briefs, however, did address the motion for r e c o n s id e r a tio n .

II.

We review a district court's rulings on discovery issues for abuse of d iscretio n . Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1 5 7 0 (11th Cir. 1992). We will not overturn discovery rulings unless an appellant sh o w s that the district court's ruling resulted in substantial harm to his case. Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1286 (11th Cir. 2003).

Jones contends that he was not allowed an equal opportunity for discovery.

He argues that the district court should have granted his motion to re-open or ex ten d discovery because he was requesting evidence previously produced by U n ited Space. His first attorney received this evidence before the close of d isco v ery but returned it to United Space after withdrawing from the case.

As United Space correctly notes, however, under Federal Rule of Civil P ro ced u re 72(a), a party has ten days after a magistrate judge rules on a non- d isp o sitiv e matter to file any objections to the order, and "a party may not th ereafter assign as error a defect in the magistrate judge's order to which objection w as not timely made." Fed. R. Civ. P 72(a). "A party failing to appeal a m ag istrate judge's order in a nondispositive matter to the district court may not raise an objection to it on appeal to a circuit court." Farrow v. West, 320 F.3d 1 2 3 5 , 1249 n.21 (11th Cir. 2003); see Maynard v. Bd. of Regents of Div. of Univs. o f Fl. Dept. of Educ., 342 F.3d 1281, 1286 (11th Cir. 2003) (applying Rule 72(a) in a discovery dispute in an employment discrimination case).

I n this case, Jones did not file any objections to the magistrate judge's order d en yin g his motion to compel the production of documents or to the magistrate ju d g e 's order denying his motion to re-open or extend discovery . Because Jones failed to challenge the magistrate's non-dispositive orders before the district court, h e waived his right to challenge them here. Accordingly, we do not decide these is s u e s .

III.

W e review a district court's grant of summary judgment de novo. Knight v. B a p tis t Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003). Summary ju d g m en t is only appropriate where there is no genuine issue of material fact, and th e moving party is entitled to judgment as a matter of law. Id. at 1315­16 (citing F ed . R. Civ. P. 56(c)). In reviewing a district court's grant of summary judgment, w e "view all the evidence, and make all reasonable factual inferences, in the light m o st favorable to the nonmoving party." Id.

Title VII prohibits discrimination with respect to an employee's "terms, co n d itio n s, or privileges of employment." 42 U.S.C. § 2000e-2(a)(1). It is well estab lish ed that the statutory phrase "terms, conditions, or privileges of em p lo ym en t" includes within its scope harassment that results in a discriminatorily h o stile or abusive work environment. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 2 1 , 114 S. Ct. 367, 370 (1993). The law governing the Florida Civil Rights Act is th e same on this issue. Maniccia v. Brown, 171 F.3d 1364, 1368 n.2 (11th Cir. 1 9 9 9 ) ("Florida's Civil Rights Act is patterned after Title VII, and thus federal case law dealing with Title VII is applicable to employment discrimination claims b ro u g h t under Florida law.").

"A hostile work environment claim under Title VII is established upon proof th at the workplace is permeated with discriminatory intimidation, ridicule, and in su lt, that is sufficiently severe or pervasive to alter the conditions of the victim's em p lo ym en t and create an abusive working environment." Miller v. Kenworth of D o th an , Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (quoting Harris, 510 U.S. at 21, 1 1 4 S. Ct. at 370 (1993)) (quotation marks omitted). Title VII is not meant to serv e as "a general civility code." See Oncale v. Sundowner Offshore Servs., Inc., 5 2 3 U.S. 75 , 80, 118 S. Ct. 998, 1002 (1998). In order to prevail on a hostile work e n v ir o n m e n t claim, a plaintiff must establish that: (1) "he belongs to a protected g ro u p ;" (2) "he has been subject to unwelcome harassment;" (3) "the harassment [w as] based on a protected characteristic of the employee;" (4) "the harassment w as sufficiently severe or pervasive to alter the terms and conditions of em p lo ym en t and create a discriminatorily abusive working environment;" and (5) "th e employer is responsible for such environment under either a theory of v icario u s or direct liability." Miller, 277 F.3d at 1275.

The fourth element of the hostile work environment test contains both a su b jectiv e and an objective component. Mendoza v. Borden, Inc., 195 F.3d 1238, 1 2 4 6 (11th Cir. 1999) (en banc). To satisfy the fourth element, the employee must "su b jectiv ely perceive" the harassment as severe and pervasive enough to change th e terms or conditions of employment, and the district court must find that this p ercep tio n was objectively reasonable. Id.

In making this objective determination, the following factors should be co n sid ered : "(1) the frequency of the conduct; (2) the severity of the conduct; (3) w h eth er the conduct is physically threatening or humiliating, or a mere offensive u tter an ce ; and (4) whether the conduct unreasonably interferes with the employee's jo b performance." Id. The Supreme Court has noted that "teasing, offhand co m m en ts, and isolated incidents" do not constitute discriminatory changes in the term s and conditions of employment. Faragher v. City of Boca Raton, 524 U.S.

7 7 5 , 788, 118 S. Ct. 2275, 2284 (1998) (citation omitted).

Jones, who is a member of the Apostolic/ Pentecostal faith, contends that the d istrict court erred in granting summary judgment to United Space on his hostile w o rk environment claim because the cumulative evidence reveals a history of h arassm en t and workplace hostility based on religion.

The record shows that none of the alleged incidents occurred on a repeated b asis, none of the incidents were physically threatening or humiliating, and none in terfered with Jones' job performance. See Faragher, 524 U.S. at 788, 118 S. Ct. at 2284; Mendoza, 195 F.3d at 1246. Therefore, the evidence does not establish a g e n u in e issue of material fact concerning the existence of a hostile work en v iro n m en t because it fails to demonstrate conditions sufficiently severe or p e r v a siv e to alter the terms of Jones' employment and or to create a d iscrim in ato rily abusive working environment. See Miller, 277 F.3d at 1275.

Thus, even if Jones subjectively perceived the incidents as severe, it would not be o b jectiv ely reasonable to construe them as severe. See id.

Because Jones failed to establish a prima facie case of hostile work en v iro n m en t religious discrimination, we affirm the grant of summary judgment to U n ited Space on this claim.

III.

"W h eth er an employer intentionally discriminated against an employee . . . is a question of fact, which may be proved either through direct or circumstantial e v id e n c e ." E.E.O.C. v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir. 2 0 0 2 ) . Absent direct evidence of an employer's discriminatory motive, a plaintiff m ay establish his case through circumstantial evidence, using the burden-shifting fram ew o rk established by the Supreme Court in McDonnell Douglas Corp. v. G reen , 411 U.S. 792, 93 S. Ct. 1817 (1973). Id. To establish a prima facie case, a p la in tif f alleging discrimination under Title VII based on circumstantial evidence m u st show that: "(1) he is a member of a protected class; (2) he was qualified for th e position; (3) he suffered an adverse employment action; and (4) he was rep laced by a person outside his protected class or was treated less favorably than a sim ilarly-situ ated individual outside his protected class." See Maynard, 342 F.3d a t 1289 (citing McDonnell Douglas Corp., 411 U.S. at 802, 93 S. Ct. at 1824). If th e plaintiff successfully demonstrates a prima facie case, the burden then shifts to th e employer to produce evidence that its action was taken for a legitimate, n o n d iscrim in ato ry reason. Joe's Stone Crabs, 296 F.3d at 1272. I f the employer meets its burden of production, "the plaintiff must show that th e proffered reason really is a pretext for unlawful discrimination." Id. at 1 2 7 2 ­ 7 3 . We have explained that if an employer's proffered reason is "one that m ig h t motivate a reasonable employer," a plaintiff may not rely on merely q u e stio n in g the wisdom of that reason to prove that it is a pretext for a d iscrim in ato ry motive. Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th C ir . 1997). Rather, in order to survive a motion for summary judgment, a plaintiff m u st demonstrate that a reasonable factfinder would not find credible the em p lo yer's reasons for its actions because of their inherent "weaknesses, im p lau sib ilities, inconsistencies, incoherencies, or contradictions." Id. at 1538 (citation and quotation marks omitted). Furthermore, an analysis of pretext focuses o n the employer's beliefs, "not the employee's own perceptions of his p erfo rm an ce." Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir. 1997) (citation o m itte d ) .

Jones contends that the district court erred in granting summary judgment to U n ited Space on his disparate treatment claim of religious and racial discrimination b ecau se he completed a performance improvement plan as required by United S p ace and because United Space gave inconsistent reasons for terminating him.

He argues that United Space put him on the performance improvement plan b ecau se it wanted to avoid giving him a pay increase that he was due.

Even if United Space's actual motive for Jones' discharge was to avoid p ayin g him a merit pay raise, which his supervisors did not believe Jones deserved, th a t does not demonstrate that United Space discharged Jones based on either racial o r religious discrimination. Furthermore, Jones did not demonstrate in any way th at the proffered reason for his termination contained any inherent "weaknesses, im p lau sib ilities, inconsistencies, incoherencies, or contradictions." See Combs, 1 0 6 F.3d at 1538. In short, Jones did not produce any evidence to indicate that U n ited Space's motivation for his discharge was for any reason other than his poor p e r fo r m a n c e. Accordingly, we affirm the grant of summary judgment to United S p ace on Jones's discriminatory termination claim.

IV.

A s for the district court's order striking Jones' motion for reconsideration b ecau se he filed it pro se while represented by counsel, we review that order only fo r abuse of discretion. See Florida Ass'n of Rehab. Facilities, Inc. v. Florida D ep 't of Health & Rehabilitative Servs., 225 F.3d 1208, 1216 (11th Cir. 2000).

Local Rule 2.03(d) of the Middle District of Florida states, "[a]ny party for whom a g en eral appearance of counsel has been made shall not thereafter take any step or b e heard in the case in proper person, absent prior leave of Court." T h e district court straightforwardly applied its local rule. It did not abuse its d is cr etio n in granting United Space's motion to strike based on Local Rule 2.03(d), th e r eb y denying Jones' motion for reconsideration of summary judgment. See C lark v. Hous. Auth. of City of Alma, 971 F.2d 723, 727 (stating that "this circuit g iv e s great deference to a district court's interpretation of its local rules").

A F F IR M E D .