Mario Austin v. American Building Company

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11018
Non-Argument Calendar
____________________
MARIO AUSTIN,
Plaintiff-Appellant,
versus
AMERICAN BUILDING COMPANY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:19-cv-01059-RAH-KFP
____________________
USCA11 Case: 22-11018 Document: 28-1 Date Filed: 07/11/2023 Page: 1 of 4

-- 1 of 4 --

2 Opinion of the Court 22-11018
Before L AGOA , BRASHER , and E DMONDSON, Circuit Judges.
PER CURIAM:
Mario Austin, proceeding pro se, appeals the district court’s
grant of summary judgment in favor of his former employer, the
American Building Company (“ABC”). No reversible error has
been shown; we affirm.
Austin began working for ABC as a shear operator in August
2018. Less than four months later, ABC terminated Austin’s em-
ployment. Austin filed this civil action against ABC in 2019. Con-
strued liberally, Austin’s pro se complaint1 asserted claims against
ABC for unlawful discrimination based on race, color, and national
origin, and also for retaliation, in violation of Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e (“Title VII”).
Following discovery, ABC moved for summary judgment. In
support of its motion, ABC filed a brief -- which included a state-
ment of undisputed material facts -- and several exhibits. In re-
sponse to ABC’s motion, Austin filed two one-page documents, in
which Austin sought chiefly to obtain additional discovery materi-
als. Never did Austin contest ABC’s statement of undisputed facts.
A magistrate judge issued a detailed 27-page report and rec-
ommendation (“R&R”), advising that the district court grant sum-
mary judgment in favor of ABC. The magistrate judge
1 Austin filed an initial complaint and two amended complaints. The district
court considered all three complaints, together, as the operative complaint.
USCA11 Case: 22-11018 Document: 28-1 Date Filed: 07/11/2023 Page: 2 of 4

-- 2 of 4 --

22-11018 Opinion of the Court 3
summarized the undisputed material facts. The magistrate judge
then determined that Austin failed to exhaust properly his claims
for retaliation and for discrimination based on color and national
origin.
The magistrate judge next examined Austin’s race discrimi-
nation claim under the burden-shifting framework established in
McDonnell Douglas.2 The magistrate judge concluded that Austin
established no prima facie case of race discrimination based on the
termination of his employment: what Austin put forth could not
demonstrate either that he was qualified for his position or that he
was treated less favorably than a similarly-situated person outside
his protected class.3 In addition, the magistrate judge determined
that Austin’s submissions were insufficient to show that ABC’s prof-
fered legitimate, nondiscriminatory reasons for terminating Aus-
tin’s employment -- poor performance and attendance issues --
were a pretext for race discrimination.
Austin objected to the R&R. The district court overruled
Austin’s objections, adopted the R&R, and granted summary judg-
ment in favor of ABC. Austin appealed the district court’s final
judgment.
2 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
3 For the same reasons, the magistrate judge determined that Austin failed to
establish a prima facie case of discrimination necessary to support a claim for
unequal terms and conditions of employment based on race.
USCA11 Case: 22-11018 Document: 28-1 Date Filed: 07/11/2023 Page: 3 of 4

-- 3 of 4 --

4 Opinion of the Court 22-11018
In his pro se appellate brief, Austin raises no substantive ar-
gument challenging the district court’s grant of summary judg-
ment. Austin identifies no issues on appeal and cites to no legal
authority. Nor does Austin dispute the facts set out in the R&R or
contend that the magistrate judge or the district court erred in ad-
dressing his claims. The “Argument” section of Austin’s brief con-
sists only of a request for oral argument.
Generally speaking, issues not raised in an appellant’s initial
brief are deemed abandoned and will not be addressed absent ex-
traordinary circumstances. See United States v. Campbell, 26 F.4th
860, 872-73 (11th Cir. 2022) (en banc); Access Now, Inc. v. Sw. Airlines
Co., 385 F.3d 1324, 1330 (11th Cir. 2004). We have long held that
briefs filed by pro se litigants must be read liberally. See Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008). Nevertheless, when a
pro se litigant fails entirely to raise an issue on appeal, that issue is
deemed abandoned. Id.; see Albra v. Advan, Inc., 490 F.3d 826, 829
(11th Cir. 2007) (explaining that pro se litigants are required to com-
ply with the applicable procedural rules).
Because Austin’s appellate brief -- construed liberally -- fails
to challenge the district court’s order granting summary judgment,
we affirm.
AFFIRMED.
USCA11 Case: 22-11018 Document: 28-1 Date Filed: 07/11/2023 Page: 4 of 4

-- 4 of 4 --