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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10927
Non-Argument Calendar
________________________
D.C. Docket No. 1:11-cv-04406-ODE
TROY CROCKETT,
Plaintiff-Appellant,
versus
THE GEO GROUP, INC.,
d.b.a. GEO Transport, Inc.,
Defendant-Appellee,
ANTHONY HARRIS,
Defendant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 5, 2014)
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Before WILSON, MARTIN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Troy Crockett, proceeding pro se, challenges the district court’s decision to
grant summary judgment in favor of his former employer, The GEO Group, Inc.
(GEO), on his claims of retaliatory termination under Title VII of the Civil Rights
Acts of 1964 and 1991, 42 U.S.C. § 2000e-2 and 2000e-3, and under 42 U.S.C.
§ 1981.1 He also appeals the district court’s denial of his motion to reconsider its
earlier denial of his motion to amend his complaint to reinstate voluntarily
dismissed claims under the Americans with Disabilities Act (ADA). After careful
consideration, we affirm.
I.
GEO, pursuant to a contract with the federal government, operates a prison
in Lovejoy, Georgia. The contract requires GEO to provide armed guards and
transportation services as necessary, and also to provide security around the
perimeter of the prison. GEO hires people as “Transportation Officers,” who are
responsible for performing all of these duties. Before October 2010, GEO
subcontracted with MVM, Inc., to provide the transportation services rather than
1
Crockett also argued that he suffered other types of adverse employment actions in
violation of Title VII beyond the retaliatory termination. However, his brief on appeal
challenges only the district court’s resolution of the retaliatory termination claim. Issues not
raised in an appellant’s initial brief are considered abandoned, even for pro se appellants.
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam).
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providing those services itself. After October 2010, when GEO began providing
more transportation services itself, it hired many people who previously worked at
MVM as Transportation Officers.
Crockett worked at MVM from December 2007 through October 2010. He
was then hired for the position of Transportation Officer by GEO when it brought
the majority of the transportation services in-house. According to Crockett, GEO
fired him on October 17, 2011 because he participated in protected activities while
he was employed at MVM and GEO. Those protected activities include filing two
Equal Employment Opportunity Commission (EEOC) complaints (one in
December 2010 while he was employed at MVM and one on September 19, 2011
while he was employed at GEO), 2 as well as several internal grievances alleging
discriminatory treatment from January to September 2011.
GEO argued to the district court that it terminated Crockett only after an
internal investigation confirmed that he abandoned his post when he was supposed
to be patrolling the perimeter of the prison on July 17, 2011. According to GEO,
Transportation Officers assigned to patrol the perimeter must do so either in a
company vehicle or on foot as necessary. However, Alexander Satcher, one of
Crockett’s supervisors, saw Crockett sitting in his personal vehicle in the prison’s
2
GEO’s statement of undisputed facts indicates that Crockett filed three EEOC
complaints during his employment with the company. This statement does not conform to the
record before us. The third complaint is dated October 21, 2011, four days after his termination.
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parking lot instead of patrolling the perimeter. Satcher reported the incident to
Warden Ralph Cherry, who referred the report to the Office of Professional
Responsibility for investigation. According to Cherry, he was aware of the
December 2010 EEOC complaint but was not aware of any other EEOC
complaints or Crockett’s most recent internal grievance at the time he referred the
incident for investigation.
The Office of Professional Responsibility investigated the incident and
sustained the allegations that Crockett had abandoned his post. Based on this,
Cherry recommended to GEO’s Human Resources Director that Crockett be
terminated. The Human Resources Director approved the recommendation, and
Crockett was terminated effective October 17, 2011.
Crockett does not dispute that he abandoned his company-issued vehicle and
sat in his personal vehicle in the parking lot on July 17, 2011. Rather, he explains
that, due to his size, the company-issued vehicle available to him that day was too
small to accommodate him without causing him pain. He reported this problem to
Satcher, who advised him to work with another officer on duty to try to switch
automobiles. However, Crockett and the other officer were not able to work out an
arrangement, and Crockett was forced to continue duty in a vehicle not suited to
his frame.
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In Crockett’s first amended complaint, he alleged both that he had been
retaliated against based on protected activity and that GEO violated the ADA when
it failed to accommodate his request for a larger vehicle. However, Crockett
voluntarily dismissed his ADA claims without prejudice on February 28, 2013, just
after he was deposed and about three weeks before the end of discovery. 3 On
March 17, two days before discovery was supposed to end, Crockett moved to
reinstate the claims because he “underwent a medical examination” on March 15
that revealed information relevant to his ADA claims, namely his weight. Based
on his weight on March 15, 2013, Crockett surmised that his weight in July 2011
was higher than he estimated when he was deposed, giving him a stronger case for
disability under the ADA.
The district court denied Crockett’s motion to reinstate the claims because
he had not shown good cause to amend his complaint outside the deadline for
amending pleadings. The district court noted that there was no reason Crockett
couldn’t have discovered his weight before his March 15 medical examination.
Beyond that, the district court concluded that to reinstate the ADA claims at that
time would prejudice GEO because it would further delay the litigation, and that an
amendment would be futile.
3
Although Crockett is proceeding pro se on appeal, he was represented by counsel at the
time the ADA claims were voluntarily dismissed.
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After the district court denied Crockett’s motion to amend his complaint,
GEO filed its motion for summary judgment. In his response to GEO’s motion,
Crockett asked the court to reconsider its order denying his request to amend his
complaint out of time. The district court denied Crockett’s request and granted
summary judgment in favor of GEO on all the remaining claims. Relevant here,
the district court found that Crockett had not produced any evidence creating a
genuine issue of material fact about the legitimacy of GEO’s non-retaliatory reason
for firing him. In this appeal, Crockett challenges both the denial of his motion for
reconsideration and the grant of summary judgment on his retaliatory termination
claim.
II.
We first consider Crockett’s argument that the district court should have
granted his motion for reconsideration and allowed him to reinstate the ADA
claims he previously dismissed voluntarily. “[W]e will only reverse a district
court’s denial of a motion to amend in instances in which the district court has
clearly abused its discretion.” Smith v. Sch. Bd. of Orange Cnty., 487 F.3d 1361,
1366 (11th Cir. 2007) (per curiam) (quotation marks omitted). A district court
abuses its discretion when it “applies the wrong law, follows the wrong procedure,
bases its decision on clearly erroneous facts, or commits a clear error in judgment.”
United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005).
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Here, the district court required Crockett to show good cause why his motion
to amend should be granted, and found that the evidence upon which Crockett
relied could have been discovered with reasonable diligence before he voluntarily
dismissed his ADA complaint. This is a straightforward application of this Court’s
rule that where, as here, “the motion to amend is filed after the deadline for filing
such motions, . . . the party must show good cause why leave to amend the
complaint should be granted.” Smith, 487 F.3d at 1366. This Court has said that
where new facts provide the basis for the out-of-time amendment, the party should
offer an explanation for “why those facts previously were undiscoverable.” Id. at
1367. In light of this precedent, the denial of the motion to amend the complaint
was not an abuse of discretion, and neither was the denial of the motion for
reconsideration.
III.
Next, we turn to Crockett’s argument that the district court erroneously
granted GEO’s motion for summary judgment. This Court reviews de novo the
grant of summary judgment, viewing all evidence and drawing all reasonable
inferences in favor of the non-moving party. Crawford v. Carroll, 529 F.3d 961,
964 (11th Cir. 2008). Summary judgment is only appropriate if the evidence
“shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A mere scintilla
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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., Ala., 446 F.3d 1160, 1162 (11th Cir. 2006)
(quotation marks omitted).
To make out a prima facie case of retaliatory termination under both § 1981
and Title VII, a plaintiff relying on indirect or circumstantial evidence must first
show that he engaged in a statutorily protected activity and that there is a causal
connection between that activity and his termination. Chapter 7 Tr. v. Gate
Gourmet, Inc., 683 F.3d 1249, 1255, 1257–58 (11th Cir. 2012). Once a plaintiff
makes his prima facie case, the burden shifts to the defendant to produce a
legitimate, non-retaliatory reason for the termination. See id. at 1255. If the
defendant meets his burden, the burden shifts back to the plaintiff to demonstrate
that the articulated reason is mere pretext for retaliation. Id. The inquiry at this
stage asks whether the plaintiff has produced “reasons sufficient to allow a
reasonable factfinder to determine that the defendant’s proffered legitimate reasons
were not what actually motivated its conduct.” Silvera v. Orange Cnty. Sch. Bd.,
244 F.3d 1253, 1258 (11th Cir. 2001) (quotation marks omitted). Conclusory
allegations of retaliation, without more, are not sufficient to carry a plaintiff’s
burden to show pretext. Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376
(11th Cir. 1996).
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Here, GEO has produced evidence of a non-retaliatory reason for Crockett’s
termination—abandonment of his post. In response, Crockett has pointed to no
evidence creating a genuine issue of material fact as to whether that reason was
mere pretext. Crockett admits that he abandoned his post, but argues that
reasonable jurors could find that Satcher’s decision to file the incident report,
which resulted in his termination, was pretext for retaliation, and this retaliation
should be imputed to GEO. See Stimpson v. City of Tuscaloosa, 186 F.3d 1328,
1332 (11th Cir. 1999) (per curiam) (describing the “cat’s paw” theory of
retaliation, which imputes the retaliatory motivation of employees to neutral
decisionmakers where appropriate).
However, Satcher’s incident report did not recommend that Crockett be
terminated, and instead recommended more lenient disciplinary action. After the
neutral internal investigation, Cherry rejected Satcher’s recommendation to
discipline Crockett and recommended that Crockett be terminated instead. At the
time Cherry recommended termination, he was aware of only the December 2010
EEOC complaint, and not the internal grievances or the September 2011 EEOC
complaint. Cf. Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004) (noting
that if there is substantial delay between the plaintiff’s protected activity known to
the defendant and the adverse action, the plaintiff’s retaliation claim cannot survive
based on the temporal proximity of the events alone). Thus, the evidence shows
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that Cherry’s decision to recommend termination was honestly based on the
security risk inherent in Crockett’s abandonment of his security post, and Crockett
has not pointed to evidence sufficient to undermine the validity of that reason for
his termination.
On this record, Crockett has not met his burden to show a genuine issue
about whether Cherry’s proffered reason for recommending termination is mere
pretext for retaliation. The district court’s decision to grant summary judgment in
GEO’s favor is therefore due to be affirmed. So, too, is the decision to deny
Crockett’s motion for reconsideration.
AFFIRMED.
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