Full opinion text
ORDER K. MICHAEL MOORE, District Judge. ..THIS CAUSE came before the Court upon Defendants’ Motion for Summary Judgment (DE # 42). THIS MATTER was referred to the Honorable Barry L. Garber, United States Magistrate Judge (DE # 31). Magistrate Judge 'Garber issued a Report and Recommendation dated May 25, 2006 (DE # 50). Plaintiff objected to Magistrate Judge Garber’s Report and Recommendation (DE # 53), and Defendants responded to Plaintiffs objections (DE # 56): After a de novo review of the record, and -being otherwise fully advised in the premises, it is ORDERED AND ADJUDGED that Magistrate Judge Garber’s careful and well-reasoned Report and Recommendation (DE # 6) is ADOPTED in its entirety as the opinion of this Court and incorporated herein. It is therefore ORDERED AND ADJUDGED that Defendants’ Motion for Summary Judgment (DE # 42) is GRANTED. • It is further ORDERED AND ADJUDGED that Defendants’ request for sanctions due to Plaintiffs failure to properly paginate the pages of his objections is DENIED. It is further ORDERED AND ADJUDGED that all pending motions are DENIED AS MOOT. The Clerk of Court is directed to CLOSE this case. REPORT AND RECOMMENDATION GARBER, United States Magistrate Judge. THIS CAUSE is before the Court on Defendants’ Motion for Summary Judgment (D.E.# 42), pursuant to an Order of Reference entered by the Honorable K. Michael Moore, United States District Judge. For the reasons set forth below, it is respectfully recommended that the Court GRANT Defendants’ Motion for Summary Judgment. BACKGROUND Plaintiff, a black male, formerly worked as an automobile and truck mechanic at Defendant Niles Sales & Service, Inc., a General Motors/Nissan dealership which is located in Key West, Florida. Defendant Jack Niles is the secretary of Niles Sales & Service, Inc., see Niles Aff. ¶ 2, and also allegedly owns that company, see Compl. ¶1. On October 15, 2001, Plaintiff began to work for non-party Morrison Sales & Service (“Morrison”). See, e.g., Edwards Dep., at 32, 38-39, 51. Morrison paid Plaintiff $21.00 per hour when it hired him, but soon increased his pay rate to $22.00 per hour. See Edwards Dep., at 51, 104-05. Plaintiff worked for Morrison until June 28, 2002, when Defendant Niles Sales & Service, Inc., bought the dealership from Morrison. See, e.g., Compl. ¶7; Niles Aff. ¶ 3; Edwards Dep., at 106. During Plaintiffs entire tenure with Defendants, Defendants paid him $22.00 per hour. On September 15, 2004, Plaintiff was involved in a work-related accident in Defendants’ service garage. See Edwards Dep., at 137; Niles Aff. ¶ 13. Plaintiff injured his shoulder a result of that accident. See Plaintiffs Response (D.E.# 48), at 3-4; Niles Aff. ¶ 13; Edwards May 5, 2006, Aff. ¶ 12; Edwards Apr. 25, 2006, Aff. ¶¶ 19-20. The following day, September 16, 2004, Plaintiff returned to work for part of the day. See Edwards Dep., at 7-8, 157-58. Because of the injury, however, Plaintiff did not return to work from September 17, 2004, until December 18, 2004. See id. at 7-8, 158. Plaintiff applied for and received workers’ compensation benefits, including payments for medical treatment and a percentage of his salary, as a result of that work-related accident and injury. See Niles Aff. ¶ 13; Edwards Dep., at 220. He continued to receive workers’ compensation benefits until approximately January 18, 2006, when he agreed to a lump-sum settlement of his workers’ compensation claim. See Defendants’ Statement of Material Facts (D.E.# 43) at 8 ¶ 22; Edwards Apr. 25, 2006, Aff. ¶22; cf. Edwards Dep., at 9-11 (discussing fact that as of December 21, 2005, Plaintiff still was receiving workers’ compensation benefits but had not obtained approval for a third surgery on his shoulder). On December 18, 2004, after Plaintiff had been out of work for approximately three months because of his shoulder injury, Defendants terminated Plaintiffs employment. See Edwards Dep., at 8, 127-30; Niles Aff. ¶ 17. When Defendant Jack Niles fired Plaintiff, he informed Plaintiff that “he needed to fill the position.” Edwards Dep., at 129; see also, e.g., id. at 187-88, 219-20. As of December 21, 2005, the date of Plaintiffs deposition and more than one year after Plaintiff had been fired, Plaintiff still would have been unable to return to his position with Defendants because his doctors had not released him to return to work as a result of his shoulder injury. See Edwards Dep., at 8-9, 12, 245-46. Plaintiff filed three EEOC charges of discrimination against Defendants. Plaintiff filed the first charge on June 29, 2004, before his accident and before Defendants fired him. In that charge, Plaintiff alleged discriminatory treatment because Defendant had hired a white mechanic, Keith Estep, who was less-qualified and had less experience than Plaintiff, at a higher pay rate than Plaintiff received. See Edwards Dep., Exh. 15; see also, e.g., Edwards Dep., at 168-69 (discussing first EEOC charge). Plaintiff filed the second charge on October 1, 2004, after his injury but before Defendants fired him. In that charge, Plaintiff alleged that Defendants had retaliated against him by issuing him a written warning for failing to report an on-the-job injury. See Edwards Dep., Exh. 14; see also, e.g., Edwards Dep., at 180 (discussing second EEOC charge). Plaintiff filed the third charge on January 3, 2005, after his injury and after Defendants fired him. In that charge, Plaintiff alleged that Defendants fired him in retaliation for filing the first two EEOC discrimination charges. See Edwards Dep., Exh. 16; see also, e.g., Edwards Dep., at 184-86 (discussing third EEOC charge); see generally Defendants’ Motion for Summary Judgment (D.E.# 42), at 9 n. 1; Compl. ¶¶ 13, 15. Plaintiff received three right-to-sue letters from the EEOC. See Compl. ¶ 16 & Exhs. A-C. On March 30, 2005, Plaintiff commenced this action. Plaintiff asserted three claims against Defendants. In Count I, Plaintiff alleges that Defendants violated the Fair Labor Standards Act (FLSA) by failing to pay him overtime wages. See Compl. ¶¶ 11, 19. In Count II, Plaintiff alleges that Defendants discriminated against him because of his race, in violation of both Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. See id. at 6 & ¶ 26. In Count III, Plaintiff alleges that Defendants fired him in retaliation for filing a workers’ compensation claim, in violation of Florida Statute § 440.205. See id. ¶ 29. DISCUSSION Defendants move for summary judgment as to all three of Plaintiffs claims. Summary judgment standard A party seeking summary judgment must demonstrate that “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see Maniccia v. Brown, 171 F.3d 1364, 1367 (11th Cir.1999); Campbell v. Sikes, 169 F.3d 1353, 1361 (11th Cir.1999). The movant bears the initial responsibility of informing the Court of the basis for its motion and of identifying those materials which demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). In response to a properly supported motion for summary judgment, “the adverse party may not rest upon the mere allegations or denials of the adverse party’s pleadings, but ... must set forth specific facts which show a genuine issue for trial.” Fed.R.Civ.P. 56(e). If the non-moving party fails to “make a sufficient showing on an essential element of her case with respect to which she has the burden of proof,” then the. Court must enter summary judgment for the moving party. Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552. The Court, however, must view the evidence and factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party. See Maniccia, 171 F.3d at 1367. “By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) (emphasis added). The Court is not to resolve factual issues, but may only determine whether factual issues exist. A material fact is one which “might affect the outcome of the suit under the governing law....” Id. at 248, 106 S.Ct. at 2510. The Court’s inquiry therefore is whether “there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250, 106 S.Ct. at 2511. Count I In Count' I, Plaintiff alleges that Defendants failed to pay him overtime wages, in violation of the Fair Labor Standards Act (“FLSA”). Defendants move for summary judgment as to Count I on the ground that Plaintiff is subject to an exemption for FLSA overtime wages for certain mechanics “primarily engaged in selling or servicing automobiles, trucks, or'' farm implements ..29 U.S.C. § 213(b)('10)(A). In Response, Plaintiff abandons his overtime claim, and therefore it is recommended that the Court grant summary judgment in Defendants’ favor as to that claim. Although Plaintiff has abandoned his overtime claim, in his Response to Defendants’ Motion for Summary Judgment, he seeks — for 'the first time — leave 'to amend the Complaint to state a claim either for non-payment of minimum wages under FLSA, for non-payment of wages under Florida law, or for breach of contract related to the alleged non-payment of wages. See D.E. # 48, at 5. Defendants object to the proposed amendment on the grounds that Plaintiff may not supplement his Complaint through argument in a brief opposing summary judgment and Plaintiff has not complied with Federal Rule of Civil Procedure 15(a) in seeking the amendment. See Defendants’ Reply (D.E.#49), at 4. The undersigned agrees with Defendants and therefore recommends that the Court deny Plaintiffs request to amend the Complaint. Plaintiff “may not amend [his] complaint through argument in a brief opposing summary judgment.” Gilmour v. Gates, Mc Donald & Co., 382 F.3d 1312, 1315 (11th Cir.2004); see also, e.g., Mahgoub v. Miami Dade Community Coll., No. 05-11520, 2006 WL 952278, at *2 (11th Cir. Apr.13, 2006); Price v. M & H Valve Co., 177 Fed.Appx. 1, at 11 n. 7 (11th Cir.2006); Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir.2006); Al-Amin v. Donald, 165 Fed.Appx. 733, 740 (11th Cir.2006); McGoy v. Ray, 164 Fed.Appx. 876, 879 n. 2 (11th Cir.2006); Stephens v. State Bd. of Pardons & Paroles, No. 04-15995, 2005 WL 1635264, at *2 n. 2 (11th Cir. June 10, 2005); McShane v. United States Att’y Gen., 144 Fed.Appx. 779, 788-89 (11th Cir.2005); Cooley v. Great So. Wood Preserving, 138 Fed.Appx. 149, 153 (11th Cir.2005); Tucker v. Union of Needletrades, Industrial and Textile Employees, 407 F.3d 784, 788 (6th Cir.2005) (“To permit a plaintiff to do otherwise would subject defendants to unfair surprise.”); Green Country Food Market, Inc. v. Bottling Group, LLC, 371 F.3d 1275, 1279 (10th Cir.2004); Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir.1996); Fisher v. Metro. Life Ins. Co., 895 F.2d 1073, 1078 (5th Cir.1990); Gaffney v. Corwine, No. 1:04CV21-SPM/AK, 2005 WL 1684436, at *3 (N.D.Fla. May 16, 2005) (Report and Recommendation), adopted by district court, 2005 WL 1684421 (N.D.Fla. June 29, 2005); Smith-Johnson v. Thrivent Fin. for Lutherans, No. 803CV2551T30EAJ, 2005 WL 1705471, at *6 n. 8 (M.D.Fla. July 20, 2005). Instead, “[a]t the summary judgment stage, the proper procedure for [Pjlain-tiff[ ] to assert a new claim is to amend the complaint in accordance with Fed.R.Civ.P. 15(a).” Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir.2004); see also, e.g., Mahgoub v. Miami Dade Community Coll., No. 05-11520, 2006 WL 952278, at *2 (11th Cir. Apr.13, 2006). Plaintiff has not filed a Rule 15(a) motion, did not cite Rule 15(a) in the relevant portion of his Response to Defendants’ Motion for Summary Judgment, did not attempt to demonstrate compliance with Rule 15(a), and has not demonstrated compliance with Rule 15(a). Even if Plaintiff had properly sought amendment pursuant to Rule 15(a), the undersigned would recommend that the Court deny that request. Because Defendants have filed their Answer to the Complaint, Plaintiffs may amend the Complaint “only by leave of court or by written consent of the adverse party .... ” Fed.R.Civ.P. 15(a). Upon application for leave to amend, the Court shall grant leave to do so “freely ... when justice so requires.” Id. The decision whether to grant Rule 15(a) leave “is within the sound discretion of the trial court.” Jameson v. Arrow Co., 75 F.3d 1528, 1535 (11th Cir.1996). In exercising that discretion, the Court may deny leave to amend, inter alia, if Plaintiff sought the amendment after undue delay, if Plaintiff demonstrated bad faith or dilatory motive, if the amendment would cause Defendants undue prejudice, or if the amendment would be futile. See, e.g., Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Jameson, 75 F.3d at 1534-35. As discussed below, Plaintiff sought the amendment to Count I after undue delay, that delay would cause Defendants undue prejudice, and it appears that at least a portion of the proposed amendment would be futile. Several facts demonstrate both Plaintiffs undue delay in seeking the amendment and Defendants’ resulting prejudice. The discovery deadline and pre-trial motion filing deadlines have expired, and Defendants had no prior notice of Plaintiffs proposed claims. If the Court allowed the proposed amendment, Defendants could not conduct discovery or file pre-trial motions related to the amendment. Even if the Court allowed Defendants to conduct discovery and file additional pretrial motions, Defendants likely would be required to re-depose Plaintiff and/or other individuals which it has already deposed, and possibly duplicate other work which it previously performed; and the Court would be required to continue trial, which is scheduled for June 12, 2006. Trial is only approximately thirty-eight days from the date Plaintiff first requested the amendment, approximately thirty-one days from the date Defendants filed their Reply in support of their Motion for Summary Judgment (and could have first responded to Plaintiffs request for leave to amend), approximately eighteen days from the date of this Report and Recommendation, and less than a week after objections to this Report and Recommendation are due, and therefore Defendants do not have time to adequately prepare a defense to Plaintiffs’ proposed claim. Plaintiff proffered no reason, let alone a legitimate reason, why he could not have sought that amendment earlier. Despite the fact that Plaintiff contends that “discovery confirms” the basis for the amendment, Plaintiffs Response (D.E.#48), at 5, Plaintiff was on notice of the basis of that proposed claim by December of 2004, when he allegedly was not paid the last of the wages at issue; and even if he could only confirm the claim through discovery, he certainly did not timely request the amendment when he received whatever information he contends “confirmed” the basis for the claim. Because Plaintiff requested leave to amend after undue delay, and because Defendants would be unduly prejudiced if the Court granted Plaintiffs request, Plaintiff is not entitled to amend the Complaint. See, e.g., Saewitz v. Lexington Ins. Co., 133 Fed.Appx. 695, 700 (11th Cir.2005) (“The district court did not commit a ‘clear abuse of discretion,’ ... when it denied Lexington leave to amend more than six months after the deadline so Lexington could assert a new affirmative defense and reopen discovery more than a month after the already-extended time for discovery had closed. This case is the classic example of an ‘undue delay in filing.’”) (citations omitted); Jennings v. BIC Corp., 181 F.3d 1250, 1258-59 (11th Cir.1999) (“Here, the plaintiffs waited to move for leave to amend until thirty-four months after their original complaint was filed. Their motion came two months before the trial was scheduled to begin, and five months after the district court’s deadline for amending the pleadings. The motion provides no basis for the delay other than that ‘it has recently come to [Plaintiffs’] attention that certain failures and derelictions of Defendant BIC Corporation give rise to an additional cause of action,’ without any further explanation. We are unable to say that the court abused its discretion in denying leave to amend because of undue delay.”) (alteration in original); 166 F.3d 1157, 1162 (11th Cir.1999) (“Prejudice and undue delay are inherent in an amendment asserted after the close of discovery and after dispositive motions have been filed, briefed, and decided.”); Jameson v. Arrow Co., 75 F.3d 1528, 1534-35 (11th Cir.1996) (Affirming denial of motion to amend which had been based on district court’s findings that the plaintiff “sought to amend the complaint ten months after she retained counsel, discovery was closed, the complaint had been amended twice, and Arrow had filed two motions for summary judgment ...,” and holding in part: “Though we are mindful'of the fact that Jameson was unable to obtain important information needed to pursue this claim until Houston Payne’s deposition in March of 1994, it appears that the basic facts giving rise to the retaliation theory were available when the second amended complaint was filed. The considerable delay in seeking to amend the complaint for the third time, coupled with the request to amend subsequent to the filing of the defendant’s motion for summary judgment, appears to have been unwarranted. The district court did not abuse its discretion in denying this request.”). Although the Court could deny leave to amend solely on those grounds, the undersigned notes that Defendants could suffer additional prejudice if the Court allowed the requested amendment. If Plaintiff prevailed on the proposed FLSA claim for unpaid wages, Plaintiff would be entitled to payment of fees and costs from Defendants, see, e.g., 29 U.S.C. § 216(b) (“The court in such action shall, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney’s fee to be paid by the defendant, and costs of the action.”); Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 416 & n. 5, 98 S.Ct. 694, 697 & n. 5, 54 L.Ed.2d 648 (1978) (citing § 216(b) of the FLSA as one example of a statute which “make[s] fee awards mandatory for prevailing plaintiffs”); Kreager v. Solomon & Flanagan, P.A., 775 F.2d 1541, 1542 (11th Cir.1985) (“Section 216(b) of the Act makes fee awards mandatory for prevailing plaintiffs.”); and if Plaintiff prevailed on the proposed Florida law claim for unpaid wages, then Plaintiff could move for a discretionary award of fees, see, e.g., Fla. Stat. § 448.08. In light of the amount of litigation which has taken place, those fees and costs could be considerable, despite the fact that the underlying claim is relatively small. Assuming the proposed claim would have merit, if Plaintiff had asserted that claim in a timely manner then Defendants likely could have ended the litigation regarding that claim by tendering an amount equal to Plaintiffs full damages, including fees and costs — • which would have been relatively low because significant litigation would not have taken place yet. See, e.g., Dail v. George A. Arab, Inc., 391 F.Supp.2d 1142, 1145 (M.D.Fla.2005) (“Where a plaintiff is offered full compensation on his FLSA claim, no compromise is involved and judicial approval is not required.”); Mackenzie v. Kindred Hosps. East, L.L.C., 276 F.Supp.2d 1211, 1217 (M.D.Fla.2003) (“Furthermore, Lynn’s Food Stores [v. U.S. ex rel. Dept. of Labor, 679 F.2d 1350 (11th Cir.1982) ] addresses judicial oversight of ‘compromises’ of FLSA claims ---- Since the plaintiff has been offered full compensation on his claim, this case does not involve a compromise. There is no need for judicial scrutiny where, as here, the defendant represents that it has offered the plaintiff more than full relief, and the plaintiff has not disputed that representation.”). Instead, because of Plaintiffs undue delay, if the proposed claim were meritorious then Defendants would face the possibility of defending against a motion for a large amount of fees and costs which it might not have had to face if Plaintiff had not unreasonably delayed seeking amendment. That prejudice might be diminished to some extent because even under the FLSA, Plaintiff would be entitled only to reasonable fees and costs if he prevailed, and Defendants would have a strong argument that fees and costs incurred prior to asserting the claim were not reasonably related to the claim. At a minimum, however, Defendants could be forced to litigate that issue and face the possibility that the Court would reject that argument, which is a risk Defendants would not have had to face if Plaintiff had timely sought leave to amend the Complaint. Finally, at least a portion of the proposed amendment appears to be futile. At a minimum, as discussed below, the precise basis for the claim is unclear and at least portions of the claim appear to be based on contradictory and/or inconsistent evidence, which are additional reasons why Defendants would have to incur significant expenses and devote significant additional time — more time than is available before trial — to properly defend against the claim. The proposed claim is based on three alleged failures by Defendants to pay Plaintiff minimum wages: (1) $308 (which represents fourteen hours at $22 per hour) which Defendants allegedly did not pay him for work performed on September 15, 2004; (2) $300 which Defendants allegedly did not pay Plaintiff “under the Technician Pay Plan”; and (3) “[n]on-payment of wages in the amount of $588.00 attributed to the last fraction of a week of employment [which] reduces [Plaintiffs] compensation to a rate below minimum wages.” D.E. # 48, at 5. Plaintiff has not directed the Court to any evidentiary basis for the third proposed basis for that claim, and he has not demonstrated how he calculated the alleged $588.00 non-payment. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir.2004) (“Even if Gilmour were correct in her assertion that new claims may be raised by a non-movant in response to a summary judgment motion, her ‘breach of duty’ claim is without support in the record.”). With regard to the $300 allegedly unpaid pursuant to the “Technician Pay Plan,” Plaintiffs allegation and his affidavit testimony appear to contradict his deposition testimony; and Plaintiff has not explained or presented evidence to dispute Defendant’s evidence, which appears to demonstrate that Defendants paid Plaintiff the proper amount. In Plaintiff s May 5, 2006, affidavit (but not in his April 25, 2006, affidavit), he testified that Defendants failed to pay the $300. See Edwards’s May 5, 2006, Aff. ¶ 5. In Plaintiffs deposition, however, he appears to have conceded that he received payment for “[his] half’ of that amount on December 18, 2004. See Plaintiffs Dep., at 129 (testifying .that on December 18, 2004, Plaintiff received a check for “[his] half of the Christmas bonus”). Defendants submitted that December 18, 2004, check and Defendants’ payroll records, see D.E. # 49, Exhs. 4-5, which, consistent with Defendant Jack Niles’s testimony, demonstrate that Plaintiff was paid more than his share of the $300 which he claims he was owed. That check represented $352.83 Defendants owed to Plaintiff (i.e., more than the $300 he claims Defendants owe him), minus $27 withheld for “employee taxes” and $162.91 withheld for child support payments, resulting in a net payment to Plaintiff of $162.92. Plaintiffs signature appears on the back of that check, and he has not disputed that he received it and deposited it in his bank account, let alone presented evidence to that effect. He also has, not disputed, let alone presented evidence, that that check accurately represented those wages minus appropriate withholdings/deductions, and he has not disputed that the withholdings/deductions were proper. In fact, Plaintiffs deposition testimony — specifically, his testimony that he received “my half of the Christmás bonus Edwards Dep., at 129 (emphasis added) — suggests that he understood that after proper deductions, including a 50% deduction of the after-tax amount for child support payments, he was entitled to a net payment of only approximately half of the amount due under the Technician Pay Plan. It therefore is recommended that the Court grant summary judgment in Defendants’ favor as to Count I and deny Plaintiffs request to amend the Complaint. Count II In Count II, Plaintiff alleges race discrimination in violation of both Title VII of the Civil Rights Act of 1964 (“Title VII”) and 42 U.S.C. § 1981. Although in Count II Plaintiff explicitly contended only that he suffered “disparate and demeaning treatment based on his race ...Compl. ¶ 26, but not that he suffered retaliation in violation of Title VII and § 1981, Defendants apparently have liberally construed Plaintiffs factual allegations in earlier portions of the Complaint to indicate that Plaintiff also asserted a retaliation claim in Count II, see D.E. # 42, at 6 (“In Count II, Plaintiff alleges disparate treatment and retaliation based on his race in violation of both Title VII and 42 U.S.C. § 1981.”) (emphasis added). Consistent with Defendants’ interpretation, the Court construes Count II to include both disparate treatment claims and retaliation claims. Disparate treatment Disparate treatment claims brought pursuant to Title VII and § 1981 “have the same requirements of proof and use the same analytical framework.” Embry v. Callahan Eye Found. Hosp., 147 Fed.Appx. 819, 821 n. 1 (11th Cir.2005) (quoting Std. v. A.B.E.L. Servs., 161 F.3d 1318, 1330 (11th Cir.1998)). Specifically, Plaintiff bears the initial burden of establishing a prima facie case of discrimination. See, e.g., Embry, 147 Fed.Appx. at 827-28; Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1258 (11th Cir.2001). If Plaintiff establishes a prima facie case, then Defendants must “articulate some legitimate, nondiscriminatory reason for the” adverse employment action. Silvera, 244 F.3d at 1258; see also, e.g., Embry, 147 Fed.Appx. at 827. If Defendants articulate a legitimate, non-discriminatory reason, then Plaintiff must demonstrate that the proffered reason was pretext. See, e.g., Embry, 147 Fed.Appx. at 827; Silvera, 244 F.3d at 1258. However, “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Silvera, 244 F.3d at 1258; see also, e.g., Embry, 147 Fed.Appx. at 827. Before analyzing those elements of Plaintiffs disparate treatment claim, the Court must determine the precise factual basis of that claim. Plaintiffs Complaint contains three possible factual bases for that claim: (1) Defendants paid Plaintiff $3.00 per hour less than they paid a white auto mechanic whom Defendants hired in March of 2002 and who had less experience than Plaintiff, see Compl. ¶ 12; (2) Defendants gave white employees pay increases but did not give Plaintiff a pay increase, see id.; and (3) Defendants “wrote up” Plaintiff for not providing them notice of his September 15, 2004, accident, despite the facts that (a) “white employees were never written up if they had not reported an accident” and (b) “in fact ... [P]laintiff was written up for no[t] reporting when he did in fact report the incident.” Id. ¶ 15. “A plaintiff establishes a prima facie case of disparate treatment by showing that she was a qualified member of a protected class and was subjected to an adverse employment action in contrast with similarly situated employees outside the protected class.” Wilson v. B/E Aerospace, Inc., 376.F.3d 1079, 1087 (11th Cir.2004); see also Embry, 147 Fed.Appx. at 827-28. Defendants do not dispute that Plaintiff was a qualified member of a protected class. They do, however, dispute whether he can demonstrate that he was subjected to an adverse employment action in contrast with similarly situated employees outside the protected class. In order to demonstrate “that employees are similarly situated, ... [PJlaintiff must show that the employees are similarly situated in all relevant respects.” Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir.2003) (citation and internal quotation marks omitted); see also, e.g., Embry v. Callahan Eye Found. Hosp., 147 Fed.Appx. 819, 829 (11th Cir.2005); Cooley v. Great So. Wood Preserving, 138 Fed.Appx. 149, 157 (11th Cir.2005). “The comparator must be nearly identical to the plaintiff to prevent courts from second-guessing a reasonable decision by the employer.” Wilson, 376 F.3d at 1091 (citing Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1259 (11th Cir.2001)); see also, e.g., Embry, 147 Fed.Appx. at 829. With regards to the white employee whom Plaintiff claims had less experience but whom Defendants allegedly paid $3.00 per hour more than they paid Plaintiff, Plaintiff clarified in his deposition that the white employee to whom he refers is Keith Estep. See Edwards Dep., at 170-79; Plaintiffs June 29, 2004, EEOC charge (Exh. 15 to Edwards Dép.). Additionally, Defendants identified that employee as Keith Estep in their Statement of Material Facts in Support of Motion for Summary Judgment, see D.E. # 43, at 3-4 ¶ 7, and Plaintiff did not dispute that fact, so that fact is deemed admitted. See S.D. Fla. L.R. 7.5.D. For at least two reasons, Keith Estep was not similarly situated to Plaintiff, and therefore Plaintiff failed to establish a pri-ma facie case regarding the relevant portion of Count II. First, the undisputed evidence establishes that Estep had many more years experience as a GM or Nissan mechanic at GM or Nissan authorized dealerships than Plaintiff had. See, e.g., Cooper v. So. Co., 390 F.3d 695, 735-36 (11th Cir.2004); id. at 745 (“As for Wilson’s compensation claim, the district court concluded that summary judgment was appropriate because Wilson failed to establish a prima facie case.... Wilson has not established that the proposed comparators had similar levels of experience or education.... ”). Defendants have presented evidence that Estep had eighteen years experience in that regard. See, e.g., Niles Aff., at 3 ¶ 7. Although Plaintiff disputes that Estep had eighteen years experience at GM or Nissan authorized dealerships, the only contrary evidence he presented is that Estep had ten years experience at GM or Nissan authorized dealerships when Plaintiff had three years of such experience, and he conceded that his claim was based solely on the fact that Defendants paid someone with seven years more experience at GlWNissan dealerships than Plaintiff more than they paid Plaintiff. See, e.g., Plaintiffs Answers to Defendants’ Initial Interrogatories (Exh. 10 to Edwards Dep.) ¶ 7.b (stating that Estep had “10 years [experience] as a mechanic in a GM dealership”); Edwards Dep., at 41 (Plaintiffs testimony that he never worked for a GM dealership before working for Morrison); id. at 170, 176-77; id. at 179 (Q: “So the only basis for your claim that you were discriminated against on the basis of your race is because one person, Keith Estep, made more money than you even though by your own admission, he had at least seven years more GM Nissan experience than you did? ... Is that accurate?” A: “Yes.”). Because Niles Sales & Service, Inc. was a GM and Nissan dealership, that difference in experience demonstrates that Plaintiff and Estep were not similarly situated for purposes of Plaintiffs prima facie case. In fact, Plaintiff conceded that if Estep actually had the most GM experience and credentials, that fact would justify Estep receiving more money that Plaintiff. See, e.g., Edwards Dep., at 195-96. Additionally, even assuming that Estep did not have any experience at GM or Nissan dealerships before Defendants hired him — a conclusion which the record evidence does not support, and which even Plaintiffs testimony explicitly contradicts — or that Estep did not have any GM or other certifications when Defendants hired him, Plaintiff has not presented evidence which disputes Defendants’ evidence that they believed Estep had eighteen years of such experience and had the appropriate certifications when they hired him; and in fact, at one point during his deposition he admitted that Defendants believed Estep was qualified when they hired him. See, e.g., Edwards Dep., at 73 (“[TJhey hired a GM guy who they thought was qualified .... That would be Keith Estep.”); id. at 195-96 (Plaintiffs testimony that he did not know what credentials Estep represented to Defendants that he had and did not know whether Estep represented to Defendants that he had credentials which would warrant a higher rate of pay than Plaintiff received; and Plaintiffs concession that if Estep actually had the most GM experience and credentials, that would justify Estep receiving more money that Plaintiff); id. at 261 (testifying that did not know whether Defendants knew that Estep’s credentials had actually expired when Defendants hired him, despite the fact that Estep had represented that he had those credentials). Even if Estep did not in fact have that experience or if those certifications had in fact lapsed, that would be irrelevant to the Court’s analysis because there is no record evidence that Defendants were aware of those alleged misrepresentations by Es-tep when they hired him at a pay rate of $25 per hour, i.e. $3 per hour higher than Plaintiffs rate. See, e.g., Embry v. Callahan Eye Found. Hosp., 147 Fed.Appx. 819, 829 (11th Cir.2005) (“Where employees have engaged in similar conduct, but the supervisor is not aware of one employee’s conduct, this conduct may not be considered in determining whether the employees are ‘similarly situated.’ ”) (emphasis added); Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1317 n. 5 (11th Cir.2003) (“While Arnold’s ‘feud’ with Dr. Puente might have justified giving her a decision-making day, unless Ryder, Hotchkiss, or Theisen (Arnold and Knight’s supervisors) knew of the events, the events cannot be considered in determining whether Knight and Arnold are similarly situated.”); Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1262 (11th Cir.2001) (“Discrimination is about actual knowledge, and real intent, not constructive knowledge and assumed intent.”); Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1186 (11th Cir.1984) (“ ‘[I]f an employer applies a rule differently .to people it believes are differently situated, no discriminatory intent has been shown.”’) (quoting Chescheir v. Liberty Mut. Ins. Co., 713 F.2d 1142, 1148 (5th Cir.1983)). Additionally, Plaintiffs assertion that Defendants failed to verify Estep’s certifications, see Edwards Apr. 25, 2006, Aff. ¶ 11, is irrelevant because the fact that Defendants may have engaged in poor business practices does not render those practices discriminatory. See, e.g., Cooley v. Great So. Wood Preserving, 138 Fed.Appx. 149, 157, 159 (11th Cir.2005); Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir.1997) (en banc). Second, the undisputed evidence demonstrates that Estep and Plaintiff were hired to perform different jobs and that Estep’s job was closer to a management position than Plaintiffs job, two' facts which prove that they were not similarly situated. See, e.g., McDonell v. Gonzales, 151 Fed.Appx. 780, 782-83 (11th Cir.2005) (“Thus, appellant has not shown that he was similarly situated to Bradley and McCann in terms of employment duties .and positions.”); Cooper v. So. Co., 390 F.3d 695, 745 (11th Cir.2004) (“As for Wilson’s compensation claim, the district , court concluded that summary judgment was appropriate because Wilson failed to establish a prima facie case. Specifically, Wilson failed to identify a similarly situated comparator. On appeal, Wilson asserts not only that she was paid less than similarly situated white employees, but also that white employees occupying ‘lower’ positions were paid more generously. However, Wilson has not established that the proposed comparators had similar levels of experience or education, nor has she established the comparators’ job responsibilities with any particularity. Wilson’s assertion that these individuals were ‘lower’ empío’y ées is offered in a wholly conclu’sory manner, based on her own subjective belief. As a result, Wilson’s argument fails’.”). Plaintiff was hired as a general mechanic, whereas Estep was hired as a lead technician. See, e.g., Niles Aff., at 2 ¶ 5, 2-3 ¶ 7, 3 ¶ 6, 3-4 ¶ 7; Edwards Dep., at 106-07, 191-93, 260. Even accepting as true Plaintiffs contention that Estep was merely a technician and not a lead technician, even Plaintiff conceded that there s a difference between his position and Es-tep’s position. See Edwards Dep., at 192 (“There is a difference between a technician and a mechanic.... A technician is a person who can replace a part.... A mechanic can repair that part.”). However, the record evidence does not support Plaintiffs conclusory assertion that Estep was hired to be merely a technician and not a lead technician. Plaintiff concedes that a lead technician job is “getting more toward management Edwards Dep., at 194, but he asserts that Estep was not hired as a lead technician. Even Plaintiff, however, referred to Estep as “our master technician ...,” id. at 260; testified that Estep told him he had been hired as the lead technician, see id. at 193-94; and conceded that he did not know what experience and credentials Estep told Defendants he had, or whether that experience and those credentials would have justified Defendants’ hiring of Estep as a lead technician at a higher pay rate than Plaintiff received, see id. at 194-95. Other than Plaintiffs self-serving, conclusory assertions, he has presented no evidence to contradict Defendants’ evidence (or Es-tep’s statement to Plaintiff) that Defendants hired Estep as a lead technician, a position which would be closer in management than Plaintiffs position and which would justify Estep’s higher rate of pay. In fact, near the end of Plaintiffs deposition, he conceded that he had no basis to dispute Defendants’ and Estep’s representations regarding the position for which Estep was hired. See Edwards Dep., at 263-64 (Q: “Do you know differently?” A: “As in writing, no. Other than what he said about what position he was hired for, I only know what [Defendants’ service manager, Bob Oulette] said he was hired for .... ” Q: “And do you know if Mr. Estep was hired in a managerial capacity?” A: “No.”). Also, once again, even if it turns out that Estep did not actually have the qualifications which he represented to Defendants that he had, that would not change the fact that Defendants actually believed that Estep had those qualifications and therefore were justified in hiring him at a pay rate $3 per hour higher than Plaintiffs pay rate. See, e.g., Embry v. Callahan Eye Found. Hosp., 147 Fed.Appx. 819, 829 (11th Cir.2005); Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1317 n. 5 (11th Cir.2003); Silvera v. Orange County Sell. Bd., 244 F.3d 1253, 1262 (11th Cir.2001); Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1186 (11th Cir.1984). Plaintiff also claims that Estep could not have been a lead technician because he actually performed only two of the twenty-three duties of that position. See Edwards Apr. 25, 2006, Aff. ¶ 13. Plaintiffs testimony as to that fact is based on speculation regarding potential hearsay, which is not evidence the Court may consider in response to Defendants’ Motion for Summary Judgment. Specifically, Plaintiff clarified that his testimony is based on information which, according to Plaintiff, can be verified by “the General Manager, [the] Service Manager,” and unidentified current and former “[mechanics.” Id. Plaintiff has not presented the testimony (or even the names) of those alleged witnesses, or even stated that those individuals actually made statements to verify that fact or relayed the contents of those statements (which would still be inadmissible hearsay), but rather has stated only his belief that those individuals could verify those facts. See, e.g., Macuba v. Deboer, 193 F.3d 1316, 1322-23 (11th Cir.1999) (holding that hearsay generally may not be considered on a motion for summary judgment, but noting that it may be considered in narrow circumstances when it may be reduced to “admissible form” or “admissible evidence at trial”) (citations omitted); United States v. Brown, 546 F.2d 166, 174 (5th Cir.1977); Broadway v. City of Montgomery, Ala., 530 F.2d 657, 661 (5th Cir.1976) (“Evidence inadmissible at trial cannot be used to avoid summary judgment.”); Lopez v. Ingram Micro, Inc., No. 95-2004-Civ-Nesbitt, 1997 WL 401585, at *7 (S.D.Fla. Mar.18, 1997) (J. Nesbitt) (holding that a plaintiff may not rely on evidence which would be inadmissible at trial to defeat summary judgment).; cf., e.g., Broadway, 530 F.2d at 660 (“The affidavit contains nothing more than a recital of unsupported allegations conclusory in nature. As such it is insufficient to avoid summary judgment.”). Additionally, even if it were true that Estep actually performed only two of his twenty-three duties, Plaintiff has not alleged, let alone presented evidence, that Defendants did not hire Estep to perform the duties of a lead technician. Even accepting Plaintiffs affidavit testimony as true, standing alone it demonstrates nothing more than the fact that Estep failed to perform the duties for which Defendants hired him. Defendants’ failure to fire an employee who does not complete all of his tasks may constitute poor business judgment, but it does not render Defendants’ failure to pay Plaintiff the same amount that it paid Estep discriminatory, particularly in light of the fact that Estep still had more GM and/or Nissan dealership experience than Plaintiff. See, e.g., Cooley v. Great So. Wood Preserving, 138 Fed.Appx. 149, 157, 159 (11th Cir.2005); Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir.1997) (en banc). Even assuming Plaintiff had demonstrated a prima facie case as to that portion of Count II, he had the burden to “produce sufficient evidence for a reasonable factfinder to conclude that each of the employer’s proffered nondiscriminatory reasons is pretextual.” Chapman v. AI Transport, 229 F.3d 1012, 1037 (11th Cir.2000) (en banc) (emphasis added); see also, e.g., Embry v. Callahan Eye Found. Hosp., 147 Fed.Appx. 819, 821 n. 1 (11th Cir.2005); Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir.1997) (en banc) (requiring a plaintiff to rebut “all of the defendant’s proffered nondiscriminatory reasons for its actions” to avoid judgment as a matter of law). Plaintiff has not done so. For example, Plaintiff has not presented evidence to rebut Defendants’ legitimate, non-discriminatory reason that it paid Estep more than Plaintiff based on the fact that Estep had more GM/Nissan dealership experience than Plaintiff had. See, e.g., Mahgoub v. Miami Dade Community Coll, No. 05-11520, 2006 WL 952278, at *2 (11th Cir. Apr.13, 2006) (“And even assuming that Plaintiff established a prima facie case of discrimination, he has not shown that MDCC’s reason for the pay differential between Plaintiff and Howard-Howard’s seniority — was a pretext for discrimination.”). Additionally, Plaintiff has not rebutted Defendants’ legitimate, non-discriminatory reason that it paid Estep a higher hourly rate because he had a position which was closer to management-level than Plaintiffs position. Finally, Plaintiff has not rebutted Defendants’ legitimate, non-discriminatory reason that it hired Estep in part based on his representations regarding his certifications. Once again, the fact that those certifications may have in fact lapsed is irrelevant because there is no record evidence that Defendants were aware of that alleged misrepresentation by Estep, see, e.g., Embry v. Callahan Eye Found. Hosp., 147 Fed.Appx. 819, 829 (11th Cir.2005); Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1317 n. 5 (11th Cir.2003); Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1262 (11th Cir.2001); Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1186 (11th Cir.1984); and Plaintiffs assertion that Defendants failed to verify Estep’s certifications, see Edwards Apr. 25, 2006, Aff. ¶ 11, is irrelevant because the fact that Defendants may have engaged in poor business practices does not render those practices discriminatory, see, e.g., Cooley v. Great So. Wood Preserving, 138 Fed.Appx. 149, 157, 159 (11th Cir.2005); Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir.1997) (en banc). Another fact which provides further evidence that Plaintiff cannot demonstrate discrimination is that Plaintiffs testimony reveals that three potentially similarly-situated white, non-Hispanic mechanics and one potentially similarly-situated Hispanic mechanic were paid at lower hourly rates than Plaintiff. See Edwards Dep., at 177-79. In Plaintiffs deposition, he identified no white, non-Hispanic mechanics and only one Hispanic mechanic — Chris Barrera — • whom Defendants paid at a higher hourly rate than Plaintiff. See id. at 170-76, 225-26. Plaintiff, however, has not based his claim on the fact that Barrera received a higher hourly rate than Plaintiff; and even if Plaintiff had based his claim on that fact, Plaintiff would not be able to demonstrate that he and Barrera were similarly situated or that Defendants’ reasons for paying Barrera a higher hourly rate were pretext for discrimination. For a while, Defendants paid Plaintiff and Barrera at the same hourly rate. See Edwards Dep., at 170. Eventually, however, Defendants gave Barrera a raise to $23 per hour, $1 per hour more than Plaintiff received. See id. at 170-73. Despite Plaintiffs conclusory statement that he was much more qualified than Barrera, see id. at 225, Plaintiff conceded that Barrera had much more experience working at a GM or Nissan dealership than Plaintiff had, see Edwards Dep., at 176-77 (Q: “How many years experience did you have working at a GM or Nissan dealership?” A: “That was my first time working at a GM or Nissan dealership.” Q: “How many years did Chris Barrera have?” A: “About 20 years.”), a fact which demonstrates that the two employees were not similarly situated, see Cooper v. So. Co., 390 F.3d 695, 745 (“As for Wilson’s compensation claim, the district court concluded that summary judgment was appropriate because Wilson failed to establish a prim a facie case.... Wilson has not established that the proposed comparators had similar levels of experience or education .... ”). Although Plaintiff may have attempted to later contradict his own testimony by implying that Barrera’s only jobs had been at Morrison and at Niles Sales & Service, Inc. and that Barrera had begun working at Morrison sometime close to when Plaintiff had begun working at Morrison, see Edwards Dep., at 225-26, Plaintiff at most implied that fact (and his only specific testimony at that point in his deposition was that Barrera had worked at a GM or Nissan dealership “for a number of years ...id. at 225); did not explain any potential conflict with his earlier, clear testimony regarding Barrera’s higher level of relevant experience; and even his later, contrary implication was based on inadmissible hearsay. Also, it is undisputed that Defendants offered Plaintiff a pay raise to $23.50 per hour, which would have been higher than Barrera’s pay rate. See, e.g., Edwards Dep., at 171-73. Plaintiff never received that raise, and the parties dispute whether Plaintiff accepted or rejected that offer of a raise. Defendants presented evidence that Plaintiff rejected that raise because he was insulted by it; and although Plaintiff admits that he told Defendant Jack Niles that he was “insulted” by that raise (because he believed he should have received a much higher raise), to a pay rate which nobody was earning at Niles Sales & Service, Inc., see id. at 172 (Q: “Sir, was anybody there earning that kind of money?” A: “No.”), he contends that he still accepted the raise. See, e.g., Edwards Dep., at 171, 173. Another fundamental problem with Plaintiffs attempts to compare his pay rate to Barrera’s- — and in fact with Plaintiffs Count II in its entirety — is that even according to Plaintiffs testimony, Defendants offered him a raise to make him the highest paid mechanic regardless of race, and if Defendants retracted their offer to pay that raise, it was only because Jack Niles was angry that Plaintiff had stated that he was “insulted” by the offer and did not show any gratitude. If Niles took that offer off the table for those reasons, then Niles did not take the offer off the table for racially discriminatory reasons, and even assuming Niles’s reasons for doing were inappropriate or constituted unsound business judgments, they do not support a racial discrimination claim. As discussed supra, Plaintiffs second ground in support of Count II is that Defendants gave white employees pay increases but did not give Plaintiff a pay increase. See Compl. ¶ 12. Plaintiff did not raise that ground in his Response to Defendants’ Motion for Summary Judgment and therefore has abandoned this potential basis for relief in Count II. See, e.g., Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1284-85 & n. 6 (11th Cir.2003); Road Sprinkler Fitters Local U. No. 669 v. Ind. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir.1994). Even if Plaintiff were still pursuing Count II on that basis, Plaintiff has failed to establish a prima facie case because he has failed to direct the Court to evidence identifying any white employee, let alone a white employee similarly situated to Plaintiff in all relevant respects (e.g., a white employee with similar experience and qualifications), who received a raise to more than $22.00 per hour. See, e.g., Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir.2003). As discussed supra, Plaintiffs third ground in support of Count II is that Defendants “wrote up” Plaintiff for not providing them notice of his September 15, 2004, accident, despite the facts that (a) “white employees were never written up if they had not reported an accident” and (b) “in fact ... [Pjlaintiff was written up for no[t] reporting when he did in fact report the incident.” Compl. ¶ 15. Similar to the previous ground, Plaintiff did not raise this ground in his Response to Defendants’ Motion for Summary Judgment, and therefore he has abandoned this potential basis for relief in Count II. See, e.g., Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1284-85 & n. 6 (11th Cir.2003); Road Sprinkler Fitters Local U. No. 669 v. Ind. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir.1994). Even if Plaintiff were still pursuing Count II on that basis, Plaintiff has failed to establish a prima facie case because he has failed to direct the Court to evidence identifying any white employee, let alone a white employee similarly situated to Plaintiff in all relevant respects {e.g., involved in a similar accident), who was not written up when Defendants learned that that employee had failed to report an accident. See, e.g., Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir.2003). Although he identified other employees who allegedly failed to report accidents, see Edwards Dep., at 181-83, he conceded that he did not know whether those employees received written warnings for failing to do so, see id. at 183. Additionally, although not necessary to determine that Plaintiff failed to prove a prima facie case, the record evidence, including Plaintiffs own testimony, demonstrates that contrary to Plaintiffs allegation in the Complaint, Plaintiff in fact failed to report the accident immediately in accordance with Defendants’ company policy, but instead reported it on a later date and then attempted to explain why he should not have been required to comply with company policy. See, e.g., Edwards Dep., at 155-56, 161-67; Edwards Apr. 25, 2006, Aff. ¶¶ 18-19; Niles Aff. ¶ 14. Plaintiff also recognized that the policy existed and that by its terms, it required him to immediately report any accident, regardless of whether he suffered an injury. See Edwards Dep., at 126-27, 155, 184. In fact, even immediately after the accident Plaintiff knew not only that he had been involved in an accident, but that he had suffered an injury as a result of that accident, so that even if he believed he only had to report accidents which involved injuries, he would have been required to report his accident. See, e.g., Edwards Dep., at 155 (testifying that hjs shoulder bothered him and he “felt like [he] pulled a muscle ... [r]ight when it happened”); Plaintiffs Sept. 27, 2004 letter to EEOC Investigator Laura Stubble-field (Exh. 4 to Edwards Dep.), at 1 (conceding that he “felt a little pull inside [his] left shoulder an a little stiffness”). At various times, Plaintiff — perhaps contra-dieting himself — attempted to explain his failure to timely report the accident as due to the fact that he believed, he did not have to report an accident unless he were bleeding, see Edwards Dep., at 156; that his “arm did not hurt very much when the accident happened ....,” see Plaintiffs comments on Sept. 24, 2004, write-up (Exh. 13 to Edwards Dep.) or that “it did not seem serious at the time and [there] was hardly any pain to speak of ...,” Plaintiffs Sept. 27, 2004 letter to EEOC Investigator Laura Stubblefield (Exh. 4 to Edwards Dep.), at 1; or that Plaintiff should not have to report every time he “get[s] any cut or abras[]ion ...,” id. Once again, even if Plaintiff disagrees with Defendants’ policy and could demonstrate that the policy constituted a poor business practice, that would not satisfy his burden to prove that the policy was discriminatory on its face or as applied to Plaintiff. See, e.g., Cooley v. Great So. Wood Preserving, 138 Fed.Appx. 149, 157, 159 (11th Cir.2005); Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir.1997) (en banc). Finally, Plaintiff concedes that the only allegedly adverse employment taken against him as a result of failing to timely report the accident was that a warning notice was placed in his file but that no other action was taken against him as a result of that failure. See Edwards Dep., at 161-63, 183-84. Title VII and § 1981 protect against actions taken “with respect to his compensation, terms, conditions, or privileges of employment,” 42 U.S.C. § 2000e-2(a)(l); Cooley v. Great So. Wood Preserving, 138 Fed-Appx. 149, 156 (11th Cir.2005), and Defendants’ action of placing a warning notice in Plaintiffs file did not, standing alone, affect the compensation, terms, conditions, or privileges of Plaintiff’s employment, see, e.g., Embry v. Callahan Eye Found. Hosp., 147 Fed.Appx. 819, 828-29 (11th Cir.2005); Cooley, 138 Fed.Appx. at 158; Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1240-41 (11th Cir.2001). In Plaintiffs Response to Defendant’s Motion for Summary Judgment and his accompanying April 25, 2006, and May 5, 2006, affidavits, he raises for the first time several additional potential bases for Count II. He did not mention those bases in the Complaint and has not requested leave to amend the Complaint to assert them. Because Plaintiff failed to move to amend the Complaint to include those bases for Count II and because he first raised them in response to Defendants’ Motion for Summary Judgment, Plaintiff is not entitled to assert those bases (which are, in effect new claims) in support of Count II. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314-15 (11th Cir.2004); see also, e.g., Mahgoub v. Miami Dade Community Coll., No. 05-11520, 2006 WL 952278, at *2 (11th Cir. Apr.13, 2006) (Affirming summary judgment in defendant’s favor as to Title VII retaliation claim, when a retaliation claim was raised in complaint but specific theory supporting retaliation claim at issue was not raised until response to summary judgment motion because, in part, plaintiff had not sought to supplement complaint to add new claim and, based on Gilmour, a “plaintiff may not supplement complaint through argument in brief opposing summary judgment, but must comply with requirements of Fed.R.Civ.P. 15(a).”); id., 2006 WL 952278, at *2 (“Plaintiff also contends that material issues of fact remain about his retaliation claim: he suggests, as he did for the first time in his response to MDCC’s motion for summary judgment, that MDCC’s denial of a raise in June 2004 was based on a false, negative performance evaluation. The district court addressed the merits of this claim. But we doubt that this claim properly is before us.”); Price v. M & H Valve Co., No. 05-15205, 2006 WL 897231, at *1 n. 7 (11th Cir. Apr.7, 2006) (“However, because M & H Valve objected to Price raising this claim for the first time in his brief opposing summary judgment, this claim was due to be dismissed .... ”); Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1297 (11th Cir.2006) (“Having proceeded through discovery without amending (or seeking to amend) his complaint to reflect that fundamental change, Hurlbert was not entitled to raise it in the midst of summary judgment.”); Al-Amin v. Donald, 165 Fed-Appx. 733, 740 (11th Cir.2006) (“A defendant is not required to ‘infer all possible claims that could arise out of the facts set forth in the complaint.’ ... ‘A plaintiff may not amend her complaint through argument in a brief opposing summary judgment.’ ”) (quoting, 382 F.3d at 1315); McGoy v. Ray, 164 Fed-Appx. 876, 879 n. 2 (11th Cir.2006) (“Furthermore, McGoy could not amend his complaint by adding his VOITIS claim in his brief opposing summary judgment, as he attempted to do.”); Stephens v. State Bd. of Pardons & Paroles, No. 04-15995, 2005 WL 1635264, at *2 n. 2 (11th Cir. June 10, 2005) (“Stephens did not include a Due Process claim in his complaint, and he never moved to amend his complaint to include it. He first argued Due Process in the district court in response to the defendants’ motion for summary judgment. That is insufficient.”); McShane v. United States Att’y Gen., 144 Fed.Appx. 779, 788-89 (11th Cir.2005); Cooley v. Great So. Wood Preserving, 138 Fed.Appx. 149, 153 (11th Cir.2005); Tucker v. Union of Needletrades, Industrial and Textile Employees, 407 F.3d 784, 788 (6th Cir.2005) (“To permit a plaintiff to do otherwise would subject defendants to unfair surprise.”); Green Country Food Market, Inc. v. Bottling Group, LLC, 371 F.3d 1275, 1279 (10th Cir.2004) (cited with approval in Gilmour, 382 F.3d at 1315) (Affirming summary judgment for defendant on claim which plaintiff first raised in opposition to summary judgment and holding: “A plaintiff should not be prevented from pursuing a claim simply because of a failure to set forth in the complaint a theory on which the plaintiff could recover, provided that a late shift in the thrust of the case will not prejudice the other party in maintaining its defense.... The liberalized pleading rules, however, do not permit plaintiffs to wait until the last minute to ascertain and refine the theories on which they intend to build their case.... This practice, if tolerated, ‘would waste the parties’ resources, as well as judicial resources,, on discovery aimed at ultimately unavailing legal theories and would un