[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15501 ELEVENTH CIRCUIT
MAY 4, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-00166-CV-JTC-1
WELTON THOMAS,
Plaintiff-Appellant,
versus
THE DEPARTMENT OF CORRECTIONS
FOR THE STATE OF GEORGIA,
Defendant-Appellee,
FRED DENNIS, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(May 4, 2010)
Before BLACK, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Welton Thomas appeals from the district court’s order granting summary
judgment in favor of the Georgia Department of Corrections (“DOC”) as to his
claims for racial discrimination and retaliation under Title VII of the Civil Rights
Act of 1964. On appeal, Thomas argues that the district court erred by granting
summary judgment as to his race discrimination claim. Specifically, he argues that
the court erred in finding that he failed to identify a similarly situated white
employee who received more favorable treatment than he received. Thomas also
asserts that the district court erred in applying the “nearly identical” standard for
proffered comparators, arguing that this standard is too stringent. In addition,
Thomas contends that the following evidence gave rise to an inference of
discrimination: (1) the DOC failed to diligently maintain various files related to his
employment; (2) his performance reviews, including his final performance review,
indicated that he met or exceeded job expectations; and (3) DOC supervisors
seized his state-issued firearm without just cause.
Thomas further argues that the court erred in granting summary judgment as
to his retaliation claim. He asserts that the court erroneously found that the DOC
contemplated his termination before he engaged in activity that is protected under
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Title VII, as there was no competent evidence showing that the DOC contemplated
his termination before he filed an internal grievance on November 5, 2004.
For the reasons set forth below, we affirm.
I.
Thomas, who is African-American, filed a complaint in federal court,
naming the DOC as a defendant.1 In his complaint, Thomas alleged that he had
been employed by the DOC as a probation officer in its Clayton County office, and
further alleged that the DOC wrongfully had terminated his employment. In
connection with his termination, Thomas raised two claims under Title
VII—disparate treatment on the basis of his race, and retaliation for engaging in an
activity that is protected under Title VII. The DOC answered, generally denying
liability.
During discovery, Thomas requested that the DOC produce a file known as
his “local management file” or “local performance file.” The DOC responded that
it was unable to locate this file. Although Thomas filed a motion to compel the
DOC to produce this file, he did not request any type of discovery sanction against
the DOC. The DOC eventually located and produced Thomas’s local management
1
Although Thomas initially named Fred Dennis and Joel Mayo as defendants, Dennis
and Mayo were dismissed from the lawsuit, and Thomas does not contest this dismissal on
appeal.
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file. Robert Haness, who was the field operations manager (and appointing
authority) during the period relevant to this appeal, testified that this file was
eventually located in his former office. The office was unoccupied at the time that
the file was discovered. Haness believed that the file may have been misplaced
because it had been in his possession and another employee’s possession at
different points in time, and the file was boxed up with other files when he and this
other employee had moved to different offices. Haness also testified that he would
have kept a file concerning disciplinary actions against Thomas, but did not know
of the present location of this disciplinary file.
Regarding the events surrounding Thomas’s termination, the undisputed
facts showed that, because Thomas was classified as a “non-exempt” employee
under the Fair Labor Standards Act, 29 U.S.C. § 201 et. seq. (“FLSA”), he was
required to receive compensatory leave in compensation for each minute of
overtime work. The DOC enforced this regulation by requiring that a non-exempt
employee earn compensatory leave for any time he worked in excess of 171 hours
during a 28-day work cycle. When an employee earned compensatory leave in this
manner, he was required to take this leave during the next work cycle. In addition,
the DOC’s standard operating procedure (“SOP”) required that each employee
accurately and truthfully report the hours that he had worked, and that an employee
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record and account for all of the time that he had worked, including overtime.
Both Haness and Joel Mayo, the Chief Probation Officer for Clayton
County, regarded FLSA regulations as a serious matter because the DOC’s failure
to comply with these regulations could subject it to liability. In addition, Mayo
testified that DOC policy left the number of verbal warnings that an employee
received to the discretion of the employee’s particular supervisor.
Fred Dennis, Thomas’s immediate supervisor, believed that, when an
employee worked over his maximum number of hours for a period, it negatively
affected office performance. He explained that this was because the employee who
had earned compensatory leave was then required to take this leave during a work
period where he could have numerous scheduled court appearances and meetings
with probationers.
Thomas’s final performance review covered the period of July 1, 2003,
through June 30, 2004, and was presented to him in September 2004. This review
stated that Thomas had met or exceeded his job requirements in all areas.
During 2004, Thomas worked more than 171 hours during four different
work cycles. On at least one occasion, Dennis told Thomas to “watch his hours,”
so he did not “burn [him]self out.” Dennis also told Thomas that he did not want
the DOC to lose any more good officers. On October 26, 2004, Dennis gave
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Thomas a letter of concern, which informed Thomas that he repeatedly had worked
over his 171-hour limit without prior authorization to do so, in violation of DOC
policy. The letter also explained that Thomas’s behavior could result in hardship
for the department because it resulted in his taking mandatory compensatory leave
from work. The letter warned Thomas that he was subject to “more severe
discipline” if his behavior continued. Following his receipt of this letter, Thomas
worked during several days on which he was scheduled to be on leave from work.
Thomas, however, failed to report these hours on his time sheet.
On October 29, 2004, Dennis drafted a letter of reprimand, in which he
related that Thomas had continued to violate the DOC’s overtime policy after he
received the letter of concern. Although Dennis did not deliver this letter to
Thomas, Haness ultimately received a copy of this letter. Haness testified that
Dennis lacked authority to issue a letter of reprimand, but that Haness had treated
Dennis’s letter as a chronology of events related to Thomas’s overtime violations.
In a letter to the DOC’s legal department, which was dated November 2,
2004, Haness recommended that Thomas be terminated for his failure to follow a
supervisor’s orders, as well as for violating DOC policy by working unauthorized
overtime hours and falsifying his time sheets. La’Quandra Smith, supervising
counsel for the legal department, verified that her initials were on this document,
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and that the date “11/2/2004” was written next to her initials. Smith testified that,
although the legal department’s administrative assistant typically stamped
documents upon their receipt, she may have initialed and dated Haness’s
November 2 letter in order to reflect its receipt during a period where the legal
department did not have an administrative assistant. Neither Haness nor Smith had
a specific recollection of sending or receiving this letter on November 2.
According to Mayo, he investigated Thomas’s overtime violations between
November 3, 2004, and November 17, 2004.
On November 3, Mayo and Dennis requested that Thomas turn over his state-
issued firearm. Mayo testified that they had requested that he turn over his firearm
because he had received reports from other employees that Thomas had engaged in
“unstable” and “irrational” behavior. Thomas complied with Mayo’s and Dennis’s
request that he relinquish his firearm. On November 5, 2004, Thomas delivered a
written grievance to Albert Spears, the DOC’s former grievance coordinator. In his
grievance, Thomas alleged that he was the victim of racial discrimination, and that
he had been subjected to a hostile work environment.
Spears testified that he had understood that Thomas’s November 5 grievance
was related to the removal of his firearm. Spears reviewed Thomas’s grievance,
and found that he had failed to raise a grievable issue. When Spears received a
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grievance, he typically opened a file, which would consist of his notes concerning
discussions that he had with employees concerning the grievance. He was required
to retain grievance files for two years. Spears, however, retained the files for three
years before purging them. If a grievance was the subject of pending litigation,
Spears would set the file aside and would not purge it. Upon being informed that
the November 5 grievance file was missing, Spears stated that he did not know why
this file would be missing, but suspected that the current grievance officer may have
purged them if he or she did not know that there was pending litigation regarding
Thomas.
On December 1, 2004, Candy Sarvis, who served as assistant counsel in the
DOC’s legal department, issued a memorandum regarding Haness’s
recommendation that Thomas be terminated. Sarvis stated that, although the typical
disciplinary measure for DOC policy violations was a temporary pay decrease, she
believed that Thomas’s termination would be “defensible” due to his repeated
refusal to comply with the DOC’s overtime policy. On December 3, 2004, Haness
signed a formal notice of adverse action related to Thomas’s termination. Haness
explained that he had believed that Thomas’s termination was warranted due to the
repetitive nature of Thomas’s overtime violations, and their potential to subject the
DOC to liability under federal law. Haness also testified that he had not been aware
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that Thomas had filed a grievance on November 5. Thomas received the notice of
adverse action on December 11, 2004. The notice informed him that he had been
terminated due to FLSA violations.
In its motion for summary judgment, the DOC argued that Thomas’s
disparate treatment claim should be dismissed because he had failed to identify a
similarly situated comparator who was treated more favorably than he was treated.
Specifically, the DOC argued that Thomas could not identify a white employee who
had engaged in misconduct that was “nearly identical” to his own misconduct. In
addition, the DOC argued that Thomas’s retaliation claim should be dismissed
because his alleged protected activity—his filing of a grievance on November 5,
2004—occurred after his termination had already been proposed by Haness on
November 2, 2004. Thus, the DOC argued, Thomas could not demonstrate a causal
connection between his termination and any protected activity.
Thomas opposed the DOC’s motion for summary judgment. In his
opposition, Thomas identified Shawn Waldroup, a white DOC employee, as a
similarly situated employee who was treated more favorably than him by the DOC
after engaging in misconduct that was nearly identical to, or more serious than, his
own misconduct. Thomas alleged, and the DOC did not dispute, that during 2006,
Waldroup, who was a surveillance officer, falsified his time sheets by reporting that
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he had worked hours that he did not actually work. In addition, Waldroup falsified
reports that he had visited probationers, when he had not made these visits.
In his opposition to summary judgment, Thomas further alleged that Dennis
had served as Waldroup’s direct supervisor for approximately six months. At the
time that he began supervising Waldroup, Dennis was aware that Waldroup’s
previous supervisor had issued three or four written warnings to him about his
falsification of time sheets and probationer reports. Dennis eventually learned that
Waldroup had repeated this misconduct while under his supervision, and gave
Waldroup a verbal warning. According to Thomas, a few months after giving
Waldroup this warning, Dennis learned that Waldroup had falsified additional
probationer reports, and terminated Waldroup. The DOC did not dispute these
facts. The evidence also shows, however, that, although Dennis testified that the
instances of Waldroup’s misconduct and Thomas’s misconduct were equally
serious, comparing their violations was like comparing “apples and oranges.”
In his opposition to summary judgment, Thomas further argued that
additional evidence gave rise to an inference of racial discrimination—namely, the
DOC’s failure to maintain his files, the removal of his firearm, and the fact that he
had received largely favorable performance reviews. Thus, he contended that this
evidence also precluded summary judgment as to his racial discrimination claim.
10
Addressing his retaliation claim, Thomas argued that summary judgment was not
appropriate because he had established that he was terminated after he filed a
grievance on November 5, and that he had thus demonstrated a prima facie case of
retaliation. Thomas also argued that the DOC had failed to authenticate Haness’s
November 2 letter with competent evidence. In addition, Thomas asserted that
DOC regulations required that a supervisor complete an adverse action form in
order to terminate an employee, and pointed out that Haness did not sign such a
form until well after November 5.
In recommending that the district court grant summary judgment in favor of
the DOC as to Thomas’s race discrimination claim, the magistrate judge found that
Thomas and Waldroup, his proffered comparator, were not similarly situated. The
magistrate reasoned that, regardless of whether Waldroup’s misconduct was more
or less severe than Thomas’s misconduct, their offenses were not “nearly identical,”
as Thomas’s overtime violations could subject the DOC to FLSA liability, and
Waldroup’s misconduct would not have this effect. In addition, the magistrate
determined that the discipline imposed upon Thomas and Waldroup was “not
significantly dissimilar.”
In recommending summary judgment as to Thomas’s retaliation claim, the
magistrate found that there was no causal connection between Thomas’s November
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5 grievance and his termination, because Haness’s November 2 letter to the legal
department showed that he had contemplated Thomas’s termination before Thomas
filed the grievance. The magistrate determined that Thomas had not pointed to facts
that placed the date of Haness’s letter in dispute. In addition, the magistrate found
that the fact that Haness’s November 2 communication was not in the format of an
official adverse action form was immaterial, as no specific type of form was
required in order to demonstrate that Haness contemplated Thomas’s termination
before November 5.
Thomas filed objections to the magistrate’s report and recommendation,
arguing that he and Waldroup were similarly situated, and that the magistrate had
erred by applying a “nearly identical” comparator standard. Thomas further argued
that Waldroup had received more favorable treatment than he had received because
Waldroup received multiple warnings about his misconduct before Dennis became
his supervisor. Thomas also argued that the magistrate failed to consider additional
evidence of discrimination, pointing to the same evidence that he had pointed to in
his opposition to summary judgment. Addressing his retaliation claim, Thomas
reasserted the arguments that he had raised in his brief opposing summary
judgment.
The district court adopted the magistrate’s report and recommendation.
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Addressing Thomas’s objections, the court found that the magistrate had correctly
applied the “nearly identical” standard, and that Waldroup was not similarly
situated to Thomas. In addition, the court found that the DOC’s failure to diligently
maintain Thomas’s files did not indicate racial animus. Finally, the court
determined that Haness’s November 2 letter demonstrated that he had contemplated
Thomas’s termination before Thomas filed his November 5 grievance, and that
Thomas had thus failed to show a causal connection between his termination and
activity protected under Title VII. Accordingly, the court entered summary
judgment in favor of the DOC.
II.
We review the district court’s ruling on summary judgment de novo. Rojas v.
Florida, 285 F.3d 1339, 1341 (11th Cir. 2002). The moving party is entitled to
summary judgment “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show 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). “When deciding whether summary judgment is
appropriate, all evidence and reasonable factual inferences drawn therefrom are
reviewed in a light most favorable to the non-moving party.” Rojas, 285 F.3d at
1341-42 (quotation omitted).
13
Title VII provides “that it is unlawful for an employer to discriminate against
any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national
origin.” Holifield v. Reno, 115 F.3d 1555, 1561 (11th Cir. 1997) (quotation
omitted). When relying on circumstantial evidence to support a discrimination
claim, a plaintiff may establish a prima facie case by showing that: “(1) he belongs
to a [protected class]; (2) he was subjected to [an] adverse job action; (3) his
employer treated similarly situated employees outside his classification more
favorably; and (4) he was qualified to do the job.” Id. at 1562. If a plaintiff cannot
identify a similarly situated comparator who was treated more leniently than
himself, then “summary judgment is appropriate where no other evidence of
discrimination is present.” Id.
“When a plaintiff alleges discriminatory discipline, to determine whether
employees are similarly situated, we evaluate whether the employees are involved
in or accused of the same or similar conduct and are disciplined in different ways.”
Burke-Fowler v. Orange County, Fla., 447 F.3d 1319, 1323 (11th Cir. 2006)
(quotation omitted). In Burke-Fowler, we clarified that a plaintiff may demonstrate
that another employee was similarly situated to himself by showing that the
comparator’s misconduct was “nearly identical” to his own. Id. “The most
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important factors in a comparator analysis in the disciplinary context are the nature
of the offenses committed and the nature of the punishments imposed.” Rioux v.
City of Atlanta, Ga., 520 F.3d 1269, 1281 (11th Cir. 2008). “[D]isciplinary
measures undertaken by different supervisors may not be comparable for purposes
of Title VII analysis.” Jones v. Gerwens, 874 F.2d 1534, 1541 (11th Cir. 1989).
1541. This is because the fact that different supervisors addressed instances of
misconduct may explain a difference in the means of discipline employed to address
the misconduct. See id.
If the plaintiff succeeds in establishing his prima facie case, then he has
raised an inference of discrimination, and “the burden shifts to the defendant to
rebut this inference by presenting legitimate, non-discriminatory reasons for its
employment action.” Holifield, 115 F.3d at 1564. “Where the defendant meets this
burden, the plaintiff has the opportunity to demonstrate that the defendant’s
articulated reason for the adverse employment action is a mere pretext for
discrimination.” Id. at 1565. “This demonstration merges with the plaintiff’s
ultimate burden of showing that the defendant intentionally discriminated against
the plaintiff.” Id. A defendant’s proffered reason is not pretext for discrimination
“unless it is shown both that the reason was false, and that discrimination was the
real reason.” Brooks v. County Com’n of Jefferson County, Ala., 446 F.3d 1160,
15
1163 (11th Cir. 2006) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515,
113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). “Provided that the proffered reason is
one that might motivate a reasonable employer, an employee must meet that reason
head on and rebut it.” Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir.
2000) (en banc).
In the context of addressing a district court’s imposition of sanctions for
discovery violations, we have held that a court should draw an adverse inference
from a party’s failure to preserve evidence only “when the absence of that evidence
is predicated on bad faith.” Mann v. Taser Intern., Inc., 588 F.3d 1291, 1310 (11th
Cir. 2009). In addition, “mere negligence in losing or destroying records is not
sufficient to draw an adverse inference.” Id.
Here, the district court did not err in granting summary judgment in favor of
the DOC as to Thomas’s race discrimination claim. In light of our decision in
Burke-Fowler, the district court appropriately applied the “nearly identical”
standard to determine whether Thomas and Waldroup were similarly situated. In
addition, the court did not err in finding that Thomas and Waldroup were not
similarly situated. While both Thomas and Waldroup falsified time sheets, there
were material differences between their misconduct, as Thomas’s misconduct could
have subjected the DOC to FLSA liability, and there is no evidence that Waldroup’s
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misconduct could have had this consequence.
Moreover, even if we were to assume that Thomas and Waldroup engaged in
nearly identical misconduct, Thomas has not demonstrated that Waldroup received
more lenient treatment than he received. After Dennis became Waldroup’s
immediate supervisor, he gave Waldroup one verbal warning regarding his
misconduct before recommending his termination. Before he was terminated,
Thomas had at least one conversation with Dennis regarding his overtime hours,
and received a written warning from Dennis regarding his overtime violations. As a
result, it appears that Dennis gave Thomas more pre-termination warnings than he
gave Waldroup. While Thomas emphasizes that Waldroup received several
warnings regarding his misconduct before Dennis became his supervisor, this does
not necessarily establish that Waldroup received more favorable treatment within
the meaning of Title VII, as disciplinary measures taken by different supervisors are
not necessarily comparable. Significantly, the record here shows that the number of
warnings an employee received before adverse action was taken against him was
left to the discretion of the employee’s immediate supervisor.
The additional evidence that Thomas points to on appeal does not give rise to
an inference of racial discrimination. Thomas fails to explain how the removal of
his firearm demonstrated racial animus, and fails to point to any white employee
17
who was treated more favorably than himself in a similar situation. While Thomas
emphasizes his favorable performance reviews, he does not dispute that Dennis
warned him that he could be disciplined for his continued overtime violations.
Accordingly, Thomas’s sole remaining evidence of discrimination is the DOC’s
failure to diligently preserve his files. Notably, the DOC eventually located and
produced Thomas’s local management file, and Thomas did not argue below that
the DOC’s negligence toward his files warranted an adverse inference, or any other
type of discovery sanction. Moreover, there is no evidence indicating that the
DOC’s failure to diligently preserve Thomas’s files was due to bad faith, as
opposed to mere negligence. As a result, Thomas’s evidence of the DOC’s
negligence toward his files was not sufficient to raise an inference of racial
discrimination. For this reason, and the additional reasons set forth above, the
district court did not err in finding that Thomas failed to establish a prima facie case
of racial discrimination.2
Finally, even assuming that the evidence could establish a prima facie claim
of race discrimination, the DOC articulated a legitimate, non-discriminatory reason
for Thomas’s termination—his repeated failure to abide by the overtime policy,
2
Thomas points to various additional facts which, he asserts, indicate racial
discrimination. Thomas’s argument concerning these facts is meritless and does not warrant
further discussion.
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which exposed the DOC to FLSA liability. For the reasons set forth above,
Thomas’s evidence of the DOC’s negligence toward his files, together with the
additional evidence he points to in his brief, is insufficient to rebut the DOC’s
proffered reason for his termination, and to show that this reason is a mere pretext
for racial discrimination. Accordingly, the district court did not err in granting
summary judgment in the DOC’s favor as to Thomas’s race discrimination claim.
III.
“To establish a prima facie case of retaliation, the plaintiff must show:
(1) that he engaged in statutorily protected expression; (2) that he suffered an
adverse employment action; and (3) that there is some causal relationship between
the two events.” Holifield, 115 F.3d at 1566. In addition, we have explained that:
To recover for retaliation, the plaintiff need not prove the underlying
claim of discrimination which led to his protest; however, the plaintiff
must have had a reasonable good faith belief that the discrimination
existed. To meet the causal link requirement, the plaintiff merely has
to prove that the protected activity and the negative employment
action are not completely unrelated. The plaintiff must at least
establish that the employer was actually aware of the protected
expression at the time the employer took adverse employment action
against the plaintiff. The employer’s awareness of the statement may
be established by circumstantial evidence.
Id. (quotations and alterations omitted). “When an employer contemplates an
adverse employment action before an employee engages in protected activity,
temporal proximity between the protected activity and the subsequent adverse
19
employment action does not suffice to show causation.” Drago v. Jenne, 453 F.3d
1301, 1308 (11th Cir. 2006).
The district court did not err in granting summary judgment in favor of the
DOC as to Thomas’s retaliation claim. The evidence showed that Haness
contemplated Thomas’s termination before Thomas filed a grievance on November
5. Regardless of whether Haness could accurately remember the date on which he
sent a letter proposing Thomas’s termination to the legal department, Smith testified
that her initials appeared on this document, and that the date next to her initials read
“November 2.” She explained that she may have initialed the document because the
department lacked an administrative assistant during this period. Moreover, the
undisputed evidence showed that Mayo began investigating Thomas’s overtime
violations and time sheet falsification by November 3. For these reasons, the
undisputed facts demonstrate that the DOC contemplated Thomas’s termination
before he filed a grievance on November 5. While Thomas points out that Haness
did not complete an adverse action form before he filed a grievance on November 5,
there is no requirement that, in order to show the absence of a causal connection, an
employer must show that it formally initiated an adverse action before the employee
engaged in protected activity. Moreover, Haness testified that he was not aware
that Thomas had filed a grievance, and Thomas has failed to point to any evidence
20
demonstrating otherwise. As a result, the district court did not err in finding that
there was no evidence of a causal connection between Thomas’s termination and
protected activity, and did not err in granting summary judgment in favor of the
DOC as to Thomas’s retaliation claim.
AFFIRMED.
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