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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13528
Non-Argument Calendar
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D.C. Docket No. 1:13-cv-00048-RLV
CARLOS CLEMONS,
Plaintiff-Appellant,
versus
DELTA AIR LINES INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 3, 2015)
Before JORDAN, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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Carlos Clemons appeals the district court’s grant of summary judgment in
favor of his former employer, Delta Air Lines, Inc. (“Delta”), in his suit alleging
gender discrimination and retaliation in violation of Title VII of the Civil Rights
Act of 1964. Clemons’s suit arose from events surrounding his termination after
the mishandling of a passenger’s lost purse in the airport where he worked, after he
filed a complaint with the Equal Employment Opportunity Commission (“EEOC”)
concerning the purse incident, and after he allegedly made complaints about
gender discrimination to supervisors four months prior to his termination. Prior to
the granting of summary judgment, Clemons moved to amend his complaint to add
a claim for age discrimination under the Age Discrimination in Employment Act
(“ADEA”) after the deadline for such motions had passed. A magistrate judge
denied his request to amend his complaint. 1 Clemons did not object to the
magistrate judge’s order denying his motion to amend.
On appeal, Clemons asserts that the magistrate judge erred in denying his
request to add a claim under the ADEA because good cause existed to allow him to
amend his complaint, amendment was not pursued in bad faith, and amendment
would not have caused undue delay or prejudice to Delta. He asserts that the
district court erred in granting summary judgment in favor of Delta as to his gender
1
Clemons also sought, without success, to add two former Delta employees as plaintiffs
to assert claims under the ADEA. Because Clemons does not challenge that decision on appeal,
any issue in this respect is abandoned. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678,
(11th Cir. 2014) (stating that if a party fails to raise an issue on appeal, it is deemed abandoned).
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discrimination claim because he provided evidence of similarly-situated female
employees who were treated more favorably, he provided considerable
circumstantial evidence of Delta’s discriminatory intent, and he provided sufficient
evidence that Delta’s proffered reason for his termination was a pretext for gender
discrimination. Finally, he asserts that the district court erred in granting summary
judgment in favor of Delta as to his retaliation claim because it was undisputed that
he met the first two elements of a Title VII retaliation claim and he provided
sufficient evident to create a triable issue that there was a causal link between his
protected expression and adverse action. We affirm, discussing each issue in turn.
I.
The magistrate judge denied Clemons’s motion to amend his complaint.
According to Federal Rule of Civil Procedure Rule 72(a), “[a] party may serve and
file objections to [a magistrate judge’s] order within 14 days after being served
with a copy,” but “[a] party may not assign as error a defect in the order not timely
objected to.” Fed.R.Civ.P. 72(a). We have read Rule 72 to mean that, “where a
party fails to timely challenge a magistrate’s nondispositive order before the
district court, the party waived his right to appeal those orders [on appeal].” Smith
v. Sch. Bd. of Orange Cnty., 487 F.3d 1361, 1365 (11th Cir. 2007); see also 11th
Cir. R. 3-1. Clemons failed to object to the magistrate judge’s order, so quite
simply, he has waived his right to appeal the denial of leave to amend. Moreover,
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the magistrate judge properly concluded that Clemons was not diligent in pursuing
an age claim because he had knowledge of the relevant facts prior to the deadline
for amending pleadings.
II.
We review the district court’s grant or denial of summary judgment de novo.
Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). In doing so, we draw all
inferences and review all of the evidence in the light most favorable to the
non-moving party. Id. “[I]f the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law,” then
summary judgment is appropriate. Id. To survive a motion for summary
judgment, the nonmoving party must offer more than a mere scintilla of evidence
for his position; rather, the nonmoving party must make a showing that is sufficient
to allow a jury to reasonably find on his behalf. Brooks v. Cnty. Comm’n of
Jefferson Cnty., Ala., 446 F.3d 1160, 1162 (11th Cir. 2006).
Title VII of the Civil Rights Act of 1964 prohibits an employer from
discharging any individual, or otherwise discriminating against any individual with
respect to the individual’s compensation, terms, conditions, or privileges of
employment because of the individual’s sex. 42 U.S.C. § 2000e-2(a)(1). A
plaintiff alleging a violation under Title VII bears the burden of proving that an
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employer illegally discriminated against him. Hinson v. Clinch Cnty. Bd. of Educ.,
231 F.3d 821, 827 (11th Cir. 2000).
Where, as here, an employee attempts to prove discriminatory intent by
circumstantial evidence, the claims may be subject to the methods of proof set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973).
Crawford v. Carroll, 529 F.3d 961, 975-76 (11th Cir. 2008). Under McDonnell
Douglas, a plaintiff must make a requisite showing of a prima facie case, the
employer must then articulate a legitimate, nondiscriminatory reason for its
actions, and then the plaintiff must offer evidence that the alleged reasons of the
employer are pretext for illegal discrimination. McDonnell Douglas, 411 U.S. at
802-04, 93 S.Ct. at 1824-25. “[A] reason cannot . . . be a pretext for discrimination
unless it is shown both that the reason was false, and that discrimination was the
real reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742,
2752 (1993) (quotations omitted) (emphasis in original).
Where an employer’s proffered reason for termination is the violation of a
workplace rule, a plaintiff may seek to prove pretext by submitting evidence that
he “did not violate the cited work rule, or . . . if []he did violate the rule, other
employees outside the protected class, who engaged in similar acts, were not
similarly treated.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354,
1363 (11th Cir. 1999). Employers may fire an employee for a good or bad reason,
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a reason based on erroneous facts, or for no reason at all, as long it is not for a
discriminatory reason. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253,
1266 (11th Cir. 2010).
Under the McDonnell Douglas framework, a plaintiff may establish a prima
facie case of discrimination by demonstrating that: (1) he is a member of a
protected class; (2) he was subjected to an adverse employment action; (3) his
employer treated similarly-situated employees outside of his class more favorably;
and (4) he was qualified for the job. See Burke-Fowler v. Orange Cnty., Fla.,
447 F.3d 1319, 1323 (11th Cir. 2006). “When a claim 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.” Id. (quotations omitted).
A plaintiff can also create a triable issue of fact concerning an employer’s
discriminatory intent by presenting “a convincing mosaic of circumstantial
evidence that would allow a jury to infer intentional discrimination by the
decisionmaker.” Smith, 644 F.3d at 1328; see also Alvarez, 610 F.3d at 1264
(stating that the circumstantial evidence necessary to present a Title VII case of
discrimination under McDonnell Douglas is “flexible and depend[s] on the
particular situation” (citations omitted)).
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The district court did not err in determining that Clemons failed to present
evidence that Delta treated similarly-situated employees outside of his class more
favorably. Clemons’s actions related to the purse were not similar to other
employees who were not terminated. Burke-Fowler, 447 F.3d at 1323.
Additionally, Clemons did not provide a convincing mosaic of circumstantial
evidence that would allow a jury to infer intentional discrimination. Finally,
assuming, arguendo, that Clemons established a prima facie case for gender
discrimination under Title VII, the district court did not err in determining that he
failed to show that Delta’s proffered reason for his termination was a pretext for
gender discrimination, because he failed to follow the proper protocol regarding
the purse, and because he failed to adduce evidence creating a genuine issue of fact
challenging Delta’s evidence that Davison had a good faith belief that Clemons
was responsible for the missing money. Accordingly, we affirm in this respect.
III.
Also under the McDonnell Douglas framework, a plaintiff alleging
retaliation may 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) he established a causal link between the protected activity and the adverse
action. Raney v. Vinson Guard Serv., 120 F.3d 1192, 1196 (11th Cir. 1997); see
also Bryant v. Jones, 575 F.3d 1281, 1307-08 (11th Cir. 2009). Title VII
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retaliation claims require that “[the] protected activity was a but-for cause of the
alleged adverse action by the employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar,
570 U.S. ___, ___, 133 S.Ct. 2517, 2534 (2013).
To establish a causal connection, the plaintiff must show that
the decisionmaker was aware of his protected conduct, and that the protected
activity and adverse action were not wholly unrelated. Kidd v. Mando Am. Corp.,
731 F.3d 1196, 1211 (11th Cir. 2013). We have indicated, however, that a
plaintiff may also show causation between the protected expression and an adverse
action if they are in “close temporal proximity.” Higdon v. Jackson, 393 F.3d
1211, 1220 (11th Cir. 2004). A time period as much as one month between the
protected activity and the adverse action is not too protracted to support causation.
Wideman v. Wal-mart Stores, Inc., 141 F.3d 1453, 1457 (11th Cir. 1998).
However, in the absence of any other evidence, we have also found three months
between the protected activity and an adverse employment action to have been
insufficient to establish causation. Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir.
2006); see also Wascura v. City of South Miami, 257 F.3d 1238, 1248 (11th Cir.
2001) (holding that, by itself, three and one-half months between protected activity
and adverse action was insufficient to prove causation).
The district court correctly determined that Clemons failed to create a
genuine issue of material fact as to causation with regard to his retaliation claim.
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First, approximately four months passed between Clemons’s complaints about
gender discrimination and his termination. Second, no evidence showed that
anyone involved in his termination was aware of his alleged past complaints
regarding gender or the EEOC complaint. The district court committed no error in
its decision.
AFFIRMED.
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