Petru-Aurelian Simionescu v. Board of Trustees of The Unive

Filing

Opinion issued by court as to Appellant Petru-Aurelian Simionescu. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. AFFIRMED in part, DISMISSED in part.--[Edited 07/12/2012 by DC]

Case: 11-15710

Date Filed: 07/11/2012

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-15710
Non-Argument Calendar
________________________
D.C. Docket No. 2:10-cv-01518-WMA

PETRU-AURELIAN SIMIONESCU,
llllllllllllllllllllllllllllllllllllllll

Plaintiff-Appellant,
versus

BOARD OF TRUSTEES OF THE
UNIVERSITY OF ALABAMA, THE,
llllllllllllllllllllllllllllllllllllllll

Defendant-Appellee,

MALCOLM PORTERA,
individually and in his official capacity, et al.,
llllllllllllllllllllllllllllllllllllllll

Defendants.

________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(July 11, 2012)

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Before BARKETT, HULL and MARTIN, Circuit Judges.
PER CURIAM:
Petru Aurelian Simionescu, formerly an instructor at the University of
Alabama at Birmingham (“UAB”), appeals from an adverse summary judgment in
favor of the Board of Trustees of the University of Alabama (“the Board”) and
dismissal of his claims against individual defendants in Simionescu’s employment
discrimination lawsuit filed pursuant to Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-2(a), 42 U.S.C. §§ 1981, 1983, 1985, 1986, and alleging
common law tort claims under Alabama law.
On appeal, Simionescu asserts that the district court judge was biased
against him. Simionescu also argues that the district court erred in dismissing his
state law claims and conspiracy claims, brought pursuant to 42 U.S.C. § 1985(3),
against the individual defendants, because the court did not cite any law in support
of the dismissal of those claims and the evidence supported his conspiracy claims.
Simionescu asserts that the district court abused its discretion by not allowing
Simionescu access to his supervisor’s course evaluations, another faculty
member’s faculty file, and the Board’s offer letters to three other faculty members
on the ground that none of these individuals were proper comparators and thereby
erred by determining that he had not established a prima facie case of
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discrimination. Finally, Simionescu argues that the district court erred in
determining that the Board’s reasons for terminating Simionescu were not
pretextual. We address each claim in turn.
I.
Simionescu argues that the district judge was biased against him. However,
because we generally do not consider on appeal issues which a party failed to raise
before the district court, Access Now, Inc. v. Southwest Airlines Co., 385 F.3d
1324, 1331 (11th Cir. 2004), we do not consider Simionescu’s claim of bias as he
failed to raise it before the district court by way of recusal motion or any other
motion or pleading.
II.
Simionescu attempts to appeal the district court’s dismissal of his complaint
against individual defendants. However, in a civil case, a party must file a notice
of appeal with the district court within 30 days after entry of the judgment or order
appealed from. Fed. R. App. P. 4(a)(1)(A). In the event that the district court
clerk fails to enter a judgment when appropriate, the default is cured as a matter of
law by the passage of 150 days from the entry of the underlying order. Fed. R.
App. P. 4(a)(7)(A)(ii).
The district court dismissed Simionescu’s complaint against the individual
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defendants and later made that dismissal a final order on September 10, 2010.
Although no judgment was subsequently entered, the defect was cured 150 days
after the district court’s September 10, 2010 order. See Fed. R. App. P.
4(a)(7)(A)(ii). Accordingly, Simionescu’s December 1, 2011 notice of appeal was
untimely as to the dismissal of his complaint against the individual defendants
because it was filed more than 30 days after the 150 day cured final judgment was
entered against him.
III.
Simionescu also contends that the district court erred in determining that
two other faculty members at UAB, Tina Oliver and W. David Merryman, could
not serve as comparators for purposes of Simionescu’s Title VII intentional
discrimination claim. Where, as here, a plaintiff seeks to prove an intentional
discrimination claim using the burden-shifting framework set out in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), the plaintiff may prove a prima
facie case of disparate treatment by showing that he was a member of a protected
class and was subjected to an adverse employment action in contrast to similarly
situated employees outside the protected class. Wilson v. B/E Aerospace, Inc.,
376 F.3d 1079, 1087 (11th Cir. 2004). In determining whether comparator
employees were similarly situated, the district court should consider whether they
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were involved in, or accused of, the same or similar conduct and disciplined
differently. See Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999).
Here, Oliver and Merryman were not sufficiently similarly situated to
Simionescu because Oliver, unlike Simionescu, was not a tenure-track professor
and had received far fewer negative reviews than Simionescu had, and Merryman
taught in a different department from Simionescu, had a different supervisor, and
Simionescu did not make any claims about the quality of Merryman’s teaching.
Because Simionescu failed to identify any similarly situated comparators,
Simionescu failed to establish a prima facie case of discrimination, and the district
court did not err in granting summary judgment on this issue. See Wilson, 376
F.3d at 1087; Maniccia, 171 F.3d at 1368.
IV.
Simionescu also challenges the district court’s denial of his motion to
compel discovery to obtain documents pertaining to other faculty members.1
However, these documents would have been relevant only if the faculty members
were proper comparators for purposes of Simionescu’s Title VII claim, and none
of the faculty members were proper comparators because each occupied a different

1

We review a denial of a motion to compel discovery for abuse of discretion. Holloman v.
Mail–Well Corp., 443 F.3d 832, 837 (11th Cir. 2006).
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position from Simionescu or had not received comparable negative reviews of
their respective performances. Moreover, Simionescu’s motion was denied for
additional reasons, including that he had failed to comply with the district court’s
scheduling order and his discovery requests were overly broad and generic, and
Simionescu does not challenge the district court’s determinations as to these
deficiencies. The district court did not abuse its discretion by denying
Simionescu’s motion to compel discovery of documents relating to these
individuals.
V.
Simionescu also argues that the district court erred in determining that the
Board’s reasons for terminating him were not pretextual. Under the McDonnell
Douglas framework, once a plaintiff establishes a prima facie case of
discrimination and the employer has offered a legitimate, nondiscriminatory
reason for its employment action, the burden shifts to the plaintiff to offer
evidence that the reason is pretextual. See Wilson, 376 F.3d at 1087. A plaintiff
may show pretext either “directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.” Jackson v. Ala. State
Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005) (internal quotation marks
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omitted).
Simionescu has conceded that there were problems with his teaching and
that he had received overwhelmingly negative teaching evaluations. Although
Simionescu claims that two other faculty members and his supervisor had incited
students to write complaints about his teaching, Simionescu admitted that these
assertions were based on speculation, and he failed to present any evidence to
prove them. Simionescu has also failed to present evidence, other than his own
speculative opinions, to support his additional theories that he was fired because
UAB undervalued his teaching and because he complained about a fellowemployee’s alleged neglect of her duties.
AFFIRMED IN PART, DISMISSED IN PART.

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