Case: 13-14902 Date Filed: 07/25/2014 Page: 1 of 14
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14902
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cv-02452-AT
MARLON CARSON,
LAMAR CLARK,
Plaintiffs-Appellants,
versus
METROPOLITAN ATLANTA RAPID
TRANSIT AUTHORITY (MARTA),
BEVERLY SCOTT,
individually and in her official capacity as
the General Manager of MARTA, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(July 25, 2014)
Case: 13-14902 Date Filed: 07/25/2014 Page: 2 of 14
Before HULL, MARCUS, and ANDERSON, Circuit Judges.
PER CURIAM:
Marlon Carson and Lamar Clark (collectively, “Plaintiffs”) jointly appeal
from the district court’s grant of summary judgment in an employment racial
discrimination and retaliation suit brought under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e, and 42 U.S.C. § 1981. The suit named as defendants
the Plaintiffs’ employer, the Metropolitan Atlanta Rapid Transit Authority
(“MARTA”), as well as the following MARTA officials in both their individual
and official capacities: Beverly Scott, general manager; John M. Weber, director
of rails and operations; Linda Lee, general superintendent; Richard Krisak,
assistant general manager of rail operations; and Dwight Ferrell, chief operating
officer (collectively, “Defendants”).
The Plaintiffs’ complaint stemmed from their 2009 terminations from their
positions with MARTA. Carson, an African-American who worked as a rail line
supervisor, alleged that he had been fired for racially discriminatory and retaliatory
purposes, under the pretext that he had violated MARTA rules by operating a train
while off duty on September 17, 2009, among other misconduct. Clark, an
African-American who worked as a rail superintendent, alleged that the
Defendants fired him after he had objected to Carson’s treatment, under the pretext
that Clark had failed to fully investigate Carson’s earlier alleged violations of
2
Case: 13-14902 Date Filed: 07/25/2014 Page: 3 of 14
MARTA’s radio-operation policies and had forwarded to Carson, without
authorization, an e-mail that contained the recordings of the radio transmissions
being investigated.
I. Racial Discrimination
The Plaintiffs first argue that the district court erred in granting summary
judgment in favor of the Defendants as to the Title VII and § 1981 claims of racial
discrimination. They contend that the Defendants’ proffered legitimate,
nondiscriminatory reasons for their terminations were contradictory and not
credible, and therefore the claims should survive summary judgment.
The Plaintiffs then proceed to list a number of alleged contradictions within
the evidence. First, inconsistencies exist as to whether certain defendants had seen
a letter written by an individual who had accused Weber of creating a hostile work
environment. Second, the evidence included contradictory accounts as to the
extent of the Defendants’ knowledge regarding Weber’s alleged discriminatory
conduct. Third, contradictory evidence exists as to the manner in which MARTA
investigated and reported Carson’s alleged rule violations. Fourth, the evidence
shows an inconsistency regarding MARTA’s termination policies.
Fifth, the Plaintiffs argue that the evidence presents contradictions as to
whether Carson in fact violated MARTA’s rules and policies. Ferrell testified in a
deposition that Carson was certified and capable of operating one of MARTA’s
3
Case: 13-14902 Date Filed: 07/25/2014 Page: 4 of 14
trains, yet Carson’s termination letter stated otherwise. Additionally, Weber’s
office assistant, Dawn Pope, stated in an affidavit that a member of the legal and
human resource departments had told her that the Plaintiffs should not have been
terminated because they had not disobeyed any rules. Weber also could not
explain why Carson’s sanctions for violating MARTA’s rules far exceeded the
required sanctions. Moreover, contradictions existed as to whether Carson had
been cleared for duty by the time he operated a train on September 17, 2009.
Sixth, the evidence suggests that Clark’s termination had been in error. An
affidavit from MARTA employee Toya Kellum stated that she overheard Lee tell
Clark to stop his investigation into Carson. Krisak later confirmed that, if Clark
had been told to stop his investigation, such an instruction would have made a
difference as to whether he should have been terminated.
Finally, with regard to Clark’s claims of racial discrimination, the Plaintiffs
argue that the district court failed to consider Weber’s “pattern and practice” of
habitually treating African-American subordinates less favorably than white
subordinates.
We review the grant of summary judgment de novo. Rioux v. City of
Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008). “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.”
4
Case: 13-14902 Date Filed: 07/25/2014 Page: 5 of 14
Id. at 1341-42. Once the moving party meets its burden of production, “the
nonmoving party must present evidence beyond the pleadings showing that a
reasonable jury could find in its favor.” Shiver v. Chertoff, 549 F.3d 1342, 1343
(11th Cir. 2008) (quotation omitted). A mere ‘scintilla’ of evidence supporting the
opposing party’s position will not suffice; there must be enough of a showing that
the jury could reasonably find for that party. Brooks v. Cnty. Comm'n of Jefferson
Cnty., 446 F.3d 1160, 1162 (11th Cir. 2006) (quotation omitted).
Title VII makes it illegal 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.” 42 U.S.C. § 2000e-2(a)(1).
Likewise, under 42 U.S.C. § 1981, “[a]ll persons . . . shall have the same right . . .
to make and enforce contracts . . . as is enjoyed by white citizens,” which in an
employment context means protection against discrimination based on race and
color. 42 U.S.C. § 1981(a); see also Standard v. A.B.E.L. Servs. Inc., 161 F.3d
1318, 1330-34 (11th Cir. 1998). Allegations of racial discrimination brought under
Title VII and § 1981 are analyzed using the same evidentiary requirements and
analytical framework. See Standard, 161 F.3d at 1330.
Because the Plaintiffs concede that they relied upon circumstantial evidence,
the burden-shifting framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), is applicable to their race
5
Case: 13-14902 Date Filed: 07/25/2014 Page: 6 of 14
discrimination claims. Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir.
2000) (en banc) (discussing an ADEA claim).
Under McDonnell Douglas, a plaintiff must first establish, by a
preponderance of the evidence, a prima facie case of discrimination. McDonnell
Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. To prevail on a claim for racial
discrimination under Title VII based on circumstantial evidence, an employee may
show that: (1) he was a member of a protected class; (2) he suffered an adverse
employment action; (3) he was qualified for the position; and (4) he was replaced
by a person outside of his protected class or was treated less favorably than a
similarly situated individual outside of his protected class. Maynard v. Bd. of
Regents, 342 F.3d 1281, 1289 (11th Cir. 2003).
If the plaintiff successfully demonstrates a prima facie case, the burden then
shifts to the employer to produce evidence that its action was taken for a
legitimate, non-discriminatory reason. McDonnell Douglas, 411 U.S. at 802-03,
93 S.Ct. at 1824. In the third step of the analysis, the plaintiff must show that the
employer’s proffered reason really is a pretext for unlawful discrimination. Id. at
804, 93 S.Ct. at 1825.
The inquiry into pretext requires us to view all of the evidence and
“determine whether the plaintiff has cast sufficient doubt on the defendant’s
proffered nondiscriminatory reasons to permit a reasonable factfinder to conclude
6
Case: 13-14902 Date Filed: 07/25/2014 Page: 7 of 14
that the employer’s proffered legitimate reasons were not what actually motivated
its conduct.” Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)
(citation omitted). Such evidence must demonstrate “weaknesses, implausibilities,
inconsistences, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could find them
unworthy of credence.” Id. (quotation omitted). A plaintiff may not establish
pretext simply by questioning the wisdom of the employer’s reason. Id. at 1543.
Instead, he must meet the employer’s reason ‟head on” and rebut it. Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir. 2004).
A reason is not pretext for discrimination “‘unless it is shown both that the
reason was false, and that discrimination was the real reason.’” Brooks, 446 F.3d
at 1163 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct.
2742, 2752, 125 L.Ed.2d 407 (1993)). An employee may do that “either directly
by persuading the court that a discriminatory reason more likely motivated the
employer or indirectly by showing that the employer’s proffered explanation is
unworthy of credence.” Jackson v. Ala. State Tenure Comm., 405 F.3d 1276, 1289
(11th Cir. 2005) (quotation omitted). Ultimately, our inquiry is limited to “whether
the employer gave an honest explanation of its behavior.” Chapman, 229 F.3d at
1030 (quotation omitted).
7
Case: 13-14902 Date Filed: 07/25/2014 Page: 8 of 14
A. Carson’s Racial Discrimination Claims
Here, in light of all the evidence, the district court did not err in concluding
that the Plaintiffs failed to demonstrate pretext as to Carson’s discrimination
claims. See McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825; Combs, 106
F.3d at 1538. Although the Plaintiffs base their argument on a string of alleged
contradictions in the evidence, a majority of these contradictions are irrelevant to
whether Carson actually had violated MARTA rules and policies, and thus do not
rebut head-on the proffered legitimate, nondiscriminatory reason for his
termination. See Wilson, 376 F.3d at 1088; Combs, 106 F.3d at 1538.
The only identified inconsistencies that are relevant to the Defendants’
reason for terminating Carson concern whether he in fact violated MARTA’s
policies. However, none of these inconsistencies show that the proffered reason
for his termination is unworthy of credence. See Combs, 106 F.3d at 1538.
Finally, even if the Plaintiffs had shown that the Defendants’ proffered reason for
the termination had been false, they failed to establish that racial discrimination
was the real reason for his firing. See Brooks, 446 F.3d at 1163.
B. Clark’s Racial Discrimination Claim
Here, the Plaintiffs have not challenged the district court’s conclusion that
Clark failed to exhaust his administrative remedies with regard to the racial
8
Case: 13-14902 Date Filed: 07/25/2014 Page: 9 of 14
discrimination claim brought under Title VII. Hence, any challenges to the grant
of summary judgment on Clark’s discrimination claims are limited to the count
brought under § 1981. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2
(11th Cir. 2005) (holding that a party abandons claims that he does not argue in his
brief).
As to the § 1981 discrimination claim, neither of the Plaintiffs’ arguments
has merit. First, a “pattern and practice” claim only may be brought by the
government or a class of private plaintiffs pursuant to Federal Rule of Civil
Procedure 23(b)(2). See Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955,
964-65 (11th Cir. 2008). Second, even if the Plaintiffs’ argument with regard to
pretext has merit, the district court had determined that the Plaintiffs failed to
establish a prima facie case of discrimination after failing to identify any similarly
situated employees outside of Clark’s class who had received more favorable
treatment. Thus, the Plaintiffs did not first meet their burden regarding a prima
facie case, nor do they challenge that matter on appeal. McDonnell Douglas, 411
U.S. at 802, 93 S.Ct. at 1824; Maynard, 342 F.3d at 1289.
II. Retaliation
The Plaintiffs next argue that the district court erred in granting summary
judgment as to their Title VII and § 1981 retaliation claims. Regarding Carson’s
claims, the Plaintiffs contend that his complaints about Weber’s routine
9
Case: 13-14902 Date Filed: 07/25/2014 Page: 10 of 14
discriminatory practices, as well as MARTA’s failure to address this
discriminatory conduct, constituted what Carson would reasonably believe to be
protected expression. Further, the court’s assumption that Carson’s termination
had been too remote in time to his complaints is not supported by the record
evidence. Also, an affidavit from MARTA employee Ethel Williams established
that, after Carson had filed a 2004 complaint against Weber, Weber had stated that
Carson would not advance any further than his current position at MARTA.
Regarding Clark’s claims, the Plaintiffs argue that he had a good-faith belief that
he was engaging in a statutorily protected activity when he declined to investigate
or punish Carson, because that sanction exceeded MARTA’s rules and policies.
Finally, the Plaintiffs argue that the Defendants’ proffered legitimate,
nondiscriminatory reasons for their terminations were contradictory and not
credible.1
1
The response brief submitted for this appeal asserts, among other arguments, that the
Plaintiffs’ appeal should be dismissed for failure to pay the docketing fee. However, the docket
sheets for both our clerk’s office and the district court indicate that on November 11, 2013, the
Plaintiffs paid the required $508, which included the $450 docketing fee, the $5 filing fee, and a
$53 returned-items fee for a prior insufficient payment. See 11th Cir. R. 3, I.O.P.; 28 U.S.C.
§ 1917. Accordingly, the Plaintiffs remain in compliance with Rule 3(e). See Fed.R.App.P. 3(e)
(“Upon filing a notice of appeal, the appellant must pay the district clerk all required fees.”).
Also, in their reply brief, the Plaintiffs request a default judgment against defendant
MARTA, as well as MARTA’s exclusion from oral argument, because MARTA failed to timely
file a response brief. The Plaintiffs contend that the submitted response brief came only from the
defendants named as individuals, and did not include MARTA. Even assuming, arguendo, that
MARTA did not join in the response brief, the request for a default ruling in the Plaintiffs’ favor
is meritless, because the only punishment MARTA could receive is losing the opportunity to be
heard on oral argument. See Fed.R.App.P. 31(c). Also, because we have decided this appeal
10
Case: 13-14902 Date Filed: 07/25/2014 Page: 11 of 14
As noted above, we review the grant of summary judgment de novo. Rioux,
520 F.3d at 1274. Title VII provides that “[i]t shall be an unlawful employment
practice for an employer to discriminate against any of his employees . . . because
he has opposed any practice made an unlawful employment practice by [Title VII],
or because he has made a charge” under Title VII. 42 U.S.C. § 2000e–3(a); see
Thompson v. North American Stainless, LP, 562 U.S. __, ___, 131 S.Ct. 863, 867,
178 L.Ed.2d 694 (2011). Section 1981 of Title 42 also encompasses retaliation
claims by an employee. Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249,
1257-58 (11th Cir. 2012) (citation omitted). A plaintiff seeking to bring a
retaliation claim under either statute must first establish a prima facie case by
showing that (1) he engaged in a statutorily protected activity; (2) he suffered a
materially adverse action; and (3) there was a causal connection between the
protected activity and the adverse action. Id. at 1258 (quotations omitted).
To state a retaliation claim, the plaintiff need only show that he had a
“reasonable belief” that an unlawful employment practice was occurring, and is not
required to show that the employer actually engaged in an unlawful employment
practice. Berman v. Orkin Exterminating Co., Inc., 160 F.3d 697, 702 (11th Cir.
1998). A plaintiff also may establish causation by showing that the decision-
without the aid of oral argument, the Plaintiffs’ request to exclude MARTA from oral argument
is moot.
11
Case: 13-14902 Date Filed: 07/25/2014 Page: 12 of 14
makers were “aware of the protected conduct, and that the protected activity and
the adverse action were not wholly unrelated.” McCann v. Tillman, 526 F.3d
1370, 1376 (11th Cir. 2008) (quotations omitted). One way to do this is to
demonstrate that there was close temporal proximity between the two events.
Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). However,
a delay of three to four months is too long, as a matter of law, to prove causation.
Id.; see also Maniccia v. Brown, 171 F.3d 1364, 1370 (11th Cir. 1999) (concluding
that “[t]he more than 15-month period that elapsed between Appellant’s grievance
and the alleged adverse employment actions belies her assertion that the former
caused the latter”).
With regard to whether an employee has engaged in a statutorily protected
activity, an employer may not retaliate against an employee because the employee
“has opposed any practice made an unlawful employment practice by” Title VII.
42 U.S.C. § 2000e-3(a). Similarly, an employer may not retaliate against an
employee because the employee “has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under this
subchapter.” Id. A complaint about an employment practice constitutes protected
opposition only if the individual explicitly or implicitly communicates a belief that
the practice constitutes unlawful employment discrimination. EEOC Compl. Man.
(CCH) §§ 8-II-B(2) (2006); see also Fed. Express Corp. v. Holowecki, 552 U.S.
12
Case: 13-14902 Date Filed: 07/25/2014 Page: 13 of 14
389, 399, 128 S.Ct. 1147, 1156, 170 L.Ed.2d 10 (2008) (stating that the EEOC
manual reflects “a body of experience and informed judgment to which courts and
litigants my properly resort for guidance”).
A. Carson’s Retaliation Claims
Here, the district court did not err in granting summary judgment as to
Carson’s Title VII and § 1981 claims of retaliation. The court correctly concluded
that, while Carson did file an internal complaint against Weber in 2004, it was too
temporally remote from Carson’s termination in 2009 to establish a causal nexus.
See Thomas, 506 F.3d at 1364.
B. Clark’s Retaliation Claim
As with the racial discrimination claims, the Defendants have not challenged
the district court’s conclusion that Clark failed to exhaust his administrative
remedies with regard to the retaliation claim brought under Title VII. Hence, any
challenges to the rulings on Clark’s retaliation claims are limited to the count
brought under § 1981. See Sepulveda, 401 F.3d at 1228 n.2.
As to Clark’s § 1981 retaliation claim, the district court did not err in
granting summary judgment. Nothing in the record indicates that Clark either
halted his investigation into Carson’s alleged violations of radio-transmission
policies, or forwarded the e-mail to Carson related to that investigation, in an effort
13
Case: 13-14902 Date Filed: 07/25/2014 Page: 14 of 14
to oppose MARTA’s unlawful employment practices. See 42 U.S.C. § 2000e-3(a);
Gate Gourmet, 683 F.3d at 1258.
III. Conclusion
For the reasons stated above, the district court did not err in granting
summary judgment as to all claims brought by the Plaintiffs, and we affirm.
AFFIRMED. 2
2
Appellees’ Motion to File Appendix Out of Time is DENIED.
14