[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-14017 MAY 23, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 2:09-cv-00845-AKK
THOMAS PORTER,
Plaintiff-Appellant,
versus
AMERICAN CAST IRON PIPE COMPANY,
ROYCE HANDLEY,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(May 23, 2011)
Before HULL, MARTIN and BLACK, Circuit Judges.
PER CURIAM:
Thomas Porter appeals the district court’s grant of summary judgment in
favor of American Cast Iron Pipe Company (ACIPCO) and Royce Handley on
Porter’s employment discrimination and retaliation claims under Title VII of the
Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-2, 3, the Age
Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and 42 U.S.C.
§ 1981. Porter argues the district court erred in granting summary judgment as to
his race and age discrimination claims because his superior qualifications showed
ACIPCO’s legitimate reason for failing to promote him was a pretext for
discrimination. Additionally, Porter argues the district court erred by finding he
had not established a prima facie case of retaliation because his protected conduct
was too temporally remote from ACIPCO’s alleged retaliation.1 After review,2 we
affirm the district court.
1
Porter’s appellate brief fails to address his disparate impact claim and his individual
claims against Handley. Accordingly, Porter abandoned these claims on appeal and we do not
address them. See Greenberg v. BellSouth Telecomms., Inc., 498 F.3d 1258, 1259 n.1 (11th Cir.
2007). Additionally, although the notice of appeal states Porter appeals the district court’s July
29, 2010, order denying his motion to alter or amend the judgment, Porter does not address this
order in his brief. Accordingly, Porter abandoned any issues relating to the July 29, 2010, order.
See id.
2
We review a district court’s grant of summary judgment de novo. Weeks v. Harden Mfg.
Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). We view the record and make all reasonable
inferences in the light most favorable to the non-moving party. Id. Summary judgment is
appropriate if the evidence shows “that there is no genuine issue as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).
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I.
Porter first argues the district court erred by granting summary judgment to
ACIPCO on his race and age discrimination claims. He claims his superior
qualifications shows ACIPCO’s legitimate reason for failing to promote him was a
pretext for discrimination. Title VII prohibits an employer from discriminating
against a person based on the person’s race. 42 U.S.C. § 2000e-2(a)(1). Under 42
U.S.C. § 1981, an employee has a right to be free of discrimination by an employer
based on race in the performance of a contract. Similarly, “[t]he ADEA makes it
‘unlawful for an employer to fail or refuse to hire or to discharge any individual or
otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s
age.’” Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc)
(quoting 29 U.S.C. § 623(a)(1)). The elements to establish an employment
discrimination claim under § 1981 and the ADEA are the same as those required
under Title VII. Howard v. BP Oil Co., 32 F.3d 520, 524 n.2 (11th Cir. 1994)
(Section 1981 claims); Chapman, 229 F.3d at 1024 (ADEA claims).
Because, for purposes of summary judgment, the district court concluded
Porter established a prima facie case under both Title VII and the ADEA and that
ACIPCO articulated a legitimate, non-discriminatory reason for denying Porter the
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promotion, Porter had to show the proffered reason was mere pretext for race or
age discrimination. See Brooks v. Cnty. Comm’rs of Jefferson Cnty., Ala., 446
F.3d 1160, 1162 (11th Cir. 2006); Chapman, 229 F.3d at 1024. To show pretext,
Porter had to demonstrate “such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in [ACIPCO’s] proffered legitimate reasons for its
action that a reasonable fact finder could find them unworthy of credence.” Combs
v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997). He could not
“recast [ACIPCO’s] proffered nondiscriminatory reasons or substitute his business
judgment for that of [ACIPCO]. Provided that the proffered reason [was] one that
might motivate a reasonable employer, [Porter had to] meet that reason head on
and rebut it . . . .” Chapman, 229 F.3d at 1030. Thus, to avoid summary
judgment, Porter had to produce sufficient evidence to rebut each of ACIPCO’s
proffered legitimate, nondiscriminatory reasons. See id. at 1037.
Furthermore, federal courts do not sit “as a super-personnel department that
reexamines an entity’s business decisions . . . .” Elrod v. Sears, Roebuck & Co.,
939 F.2d 1466, 1470 (11th Cir. 1991). Disparities in qualifications “must be of
such weight and significance that no reasonable person, in the exercise of
impartial judgment, could have chosen the candidate selected over the plaintiff for
the job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004),
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overruled in part on other grounds, Ash v. Tyson Foods, 546 U.S. 454, 126 S.Ct.
1195 (2006).
The district court did not err in concluding Porter failed to establish
ACIPCO’s reason for promoting the other candidate was pretext for race or age
discrimination. Although ACIPCO’s reason for promoting the other
candidate—his superior interview performance—was subjective, “subjective
reasons are not the red-headed stepchildren of proffered nondiscriminatory
explanations for employment decisions.” Chapman, 229 F.3d at 1034.
Furthermore, Porter failed to identify a disparity in qualifications such that no
reasonable person, in the exercise of impartial judgment, would have promoted the
other candidate over him. See Cooper, 390 F.3d at 732. Although Porter had
more seniority and experience, he failed to rebut or even address the other
candidate’s identified strengths in the other dimensions on which ACIPCO relied.
Accordingly, the district court did not err in granting summary judgment for
ACIPCO on Porter’s race and age discrimination claims.
II.
Porter also argues the district court erred by finding his protected conduct
was too temporally remote from ACIPCO’s alleged retaliation. Title VII prohibits
an employer’s retaliating against an employee for opposing an unlawful
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employment practice. See Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S.
53, 59, 126 S. Ct. 2405, 2410 (2006). A race-based retaliation claim is also
cognizable under 42 U.S.C. § 1981. CBOCS West, Inc. v. Humphries, 553 U.S.
442, 451, 128 S.Ct. 1951, 1958 (2008). To establish a Title VII or § 1981
retaliation claim based on circumstantial evidence, the plaintiff must show: (1) he
engaged in statutorily protected expression; (2) he suffered an adverse
employment action; and (3) there is a causal connection between the two events.
See Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008); see also Goldsmith
v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1277 (11th Cir. 2008) (applying the
same three-part test to retaliation claims under § 1981 and Title VII).
The district court concluded Porter established the first element of the prima
facie case by suing ACIPCO, filing EEOC complaints, and complaining about his
1998 performance evaluation. Porter met the second element of the prima facie
case by showing ACIPCO failed to promote him.
To establish causation, Porter had to show the alleged retaliator was aware
of his “protected activity” and “the protected activity and the adverse action were
not wholly unrelated.” Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 590 (11th Cir.
2000), abrogated on other grounds by Burlington N., 548 U.S. at 68, 126 S.Ct. at
2415. Absent additional evidence of causation, “mere temporal proximity between
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[] knowledge of protected activity and an adverse [] action [] must be very close.”
Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004). “If there is a substantial
delay between the protected expression and the adverse action in the absence of
other evidence tending to show causation, the complaint of retaliation fails as a
matter of law.” Id. Finally, as with a discrimination claim, if the plaintiff
establishes a prima facie case of retaliation and the employer produces a
legitimate, non-retaliatory reason for its actions, the plaintiff must offer evidence
from which a jury may conclude that the proffered reason is “a pretextual ruse for
retaliation.” See Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th
Cir. 1999).
In this case, no juror could reasonably infer causation given the ten-year
interlude between Porter’s most recent complaint and ACIPCO’s failure to
promote him. See Higdon, 393 F.3d at 1220-21 (three months too remote to infer
causation). Furthermore, as discussed above, Porter failed to show his
qualifications were so superior to the other candidate’s qualification that no
reasonable person would have chosen the other candidate over Porter. Thus,
Porter failed to show that ACIPCO’s legitimate reason for failing to promote him
was pretext to retaliate against him for his previous lawsuits and EEOC
complaints. Finally, the district court did not err in rejecting Porter’s unsupported
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allegation that ACIPCO retaliated against him for filing the present lawsuit by
threatening to collect a personal debt that ACIPCO had written off in 1995. As
the district court noted, Porter could not establish a prima facie case of retaliation
merely by alleging in a brief—without any basis in the record—that ACIPCO
retaliated against him by attempting to collect a forgiven debt. Accordingly, the
district court did not err in granting summary judgment for ACIPCO on Porter’s
retaliation claim.
AFFIRMED.
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