Case: 15-10583 Date Filed: 09/25/2015 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-10583
Non-Argument Calendar
________________________
D.C. Docket No. 8:13-cv-03110-JSM-TGW
BYRON STEVEN WILLIS,
Plaintiff-Appellant,
versus
PUBLIX SUPER MARKETS, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(September 25, 2015)
Before TJOFLAT, WILLIAM PRYOR and JULIE CARNES, Circuit Judges.
PER CURIAM:
Case: 15-10583 Date Filed: 09/25/2015 Page: 2 of 5
Byron Willis, an African-American male, was employed by Publix Super
Markets, Inc. (“Publix”) from 1996 until August 17, 2012,1 when Publix
discharged him for dishonesty. Proceeding pro se, he brought this action against
Publix under Title VII, 42 U.S.C. §§ 2000e-2, 2000e-3, and 42 U.S.C. § 1981,
claiming that Publix discharged him because of his race and in retaliation for
complaining in the past about being passed over for promotional opportunities and
inadequate training. The District Court concluded that Willis failed to establish
prima facie that he was discharged due to his race or in retaliation for engaging in
protected activity and granted Publix summary judgment. Willis, now represented
by counsel, appeals, arguing that he established a prima facie case of
discrimination and retaliation. We affirm.
We review a district court’s grant of summary judgment de novo. Thomas v.
Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007) (per curiam).
Summary judgment is appropriate “if 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.” Fed. R. Civ. P. 56(a).
Title VII forbids employment discrimination against any person based
on that individual’s race. 42 U.S.C. § 2000e-2(a). Similarly, § 1981 provides that
1
Willis was hired as a full-time Damage Return Line Wrapper at Publix’s Lakeland
Return Center. In June 2009, he was transferred to Publix’s High Velocity Warehouse as a
Warehouse Worker, a position he occupied immediately prior to his discharge.
2
Case: 15-10583 Date Filed: 09/25/2015 Page: 3 of 5
“[a]ll persons . . . shall have the same right . . . to make and enforce
contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). The essential
elements of a section 1981 and Title VII employment discrimination claim are the
same and are analyzed using the same framework. Standard v. A.B.E.L. Servs.,
Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
If, as here, the plaintiff has to rely on circumstantial evidence rather than
direct evidence to prove his allegations, to make out a prima facie case of
discrimination he must show that: (1) he is a member of a protected class; (2) he
was subjected to an adverse employment action; (3) the employer treated similarly
situated employees who are not members of the plaintiff’s class more favorably;
and (4) he was qualified for the job or benefit at issue. Rice-Lamar v. City of Fort
Lauderdale, 232 F.3d 836, 842–43 (11th Cir. 2000).
To make a comparison of the plaintiff’s treatment to that of non-minority
employees, the plaintiff must show that the comparator “employees are similarly
situated in all relevant respects” to the plaintiff. Knight v. Baptist Hosp. of Miami,
Inc., 330 F.3d 1313, 1316 (11th Cir. 2003) (per curiam) (quotation marks omitted)
(quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)). “In determining
whether employees are similarly situated . . . it is necessary to consider whether the
employees are involved in or accused of the same or similar conduct and are
disciplined in different ways.” Id. “If a plaintiff fails to show the existence of a
3
Case: 15-10583 Date Filed: 09/25/2015 Page: 4 of 5
similarly situated employee, summary judgment is appropriate where no other
evidence of discrimination is present.” Wilson v. B/E Aerospace, Inc., 376 F.3d
1079, 1092 (11th Cir. 2004) (quotation marks omitted) (quoting Holifield, 115 F.3d
at 1562).
Willis failed to show that he was treated less favorably than similarly
situated employees outside his protected class. The employees he offered for
comparison were not similarly situated because, unlike Willis, they had not been
found to have violated Publix’s dishonesty policy. Accordingly, they were not
proper comparators, Knight, 330 F.3d at 1316, and summary judgment was
properly granted.
Willis also argues that he established prima facie a claim of retaliation. The
anti-retaliation provision of Title VII forbids an employer from retaliating against
an employee because he has opposed “an unlawful employment practice.” 42
U.S.C. § 2000e-3(a). Retaliation claims are also cognizable under 42 U.S.C. §
1981. CBOCS W., Inc. v. Humphries, 553 U.S. 442, 452–57, 128 S. Ct. 1951,
1958–61, 170 L. Ed. 2d 864 (2008). Section 1981 and Title VII retaliation claims
are also analyzed under the same framework. Standard, 161 F.3d at 1328.
In order to prove retaliation prima facie, a plaintiff must show that: (1) he
engaged in a statutorily protected activity; (2) he suffered a materially adverse
employment action; and (3) there is a casual connection between the protected
4
Case: 15-10583 Date Filed: 09/25/2015 Page: 5 of 5
activity and the materially adverse action. Brown v. Ala. Dep’t of Transp., 597
F.3d 1160, 1181 (11th Cir. 2010).
To establish the causal connection element, the plaintiff must demonstrate
that “the decision maker was aware of the protected conduct at the time of the
adverse employment action.” Brungart v. BellSouth Telecomms., Inc., 231 F.3d
791, 799 (11th Cir. 2000). Further, “if there is a substantial delay between the
protected [activity] and the adverse action in the absence of other evidence tending
to show causation, the complaint of retaliation fails as a matter of law.” Higdon v.
Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004).
Willis’s complaint failed to allege that his complaints to management were
based on an unlawful employment practice, such as discrimination. He therefore
failed to establish that he engaged in a statutorily protected activity. See 42 U.S.C.
§ 2000e-3(a). Nevertheless, even assuming that he engaged in a protected activity,
he failed to establish a causal connection between the protected activity and his
termination because he did not show that any of the decision-makers were aware of
the protected conduct at the time of his termination. Brungart, 231 F.3d at 799.
AFFIRMED.
5