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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14108
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-22610-KMW
ANTONIO RODRIGUEZ,
Plaintiff-Appellant,
versus
CARGO AIRPORT SERVICES USA, LLC,
d.b.a. MIA - Cargo Air Services USA
d.b.a. Cargo Services, Inc.
d.b.a. CAS,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
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(April 28, 2016)
Before TJOFLAT, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Plaintiff-Appellant Antonio Rodriguez appeals from the district court’s grant
of summary judgment in favor of his former employer, Defendant-Appellee Cargo
Airport Services USA, LLC (“CAS”), in his lawsuit alleging that CAS terminated
him because of his age, in violation of the Age Discrimination in Employment Act
(“ADEA”) and the Florida Civil Rights Act (“FCRA”), and retaliated against him
for exercising his rights under the Florida Workers’ Compensation Law.
Rodriguez argues that the district court misapplied the summary-judgment
framework and that material issues of fact preclude summary judgment on all of
his claims. After careful review, we affirm.
I.
CAS is a cargo-handling company that provides services at airports in
Florida and elsewhere. Alex Gonzalez, the General Manager of two CAS
warehouse facilities at the Miami International Airport, hired Rodriguez on
September 30, 2013, as a High Value Security Guard for one of the warehouses,
Building 707A. Building 707A housed high-value cargo for a customer airline.
Rodriguez was 61 years old when hired.
On April 12, 2014, Rodriguez was physically attacked at work by a co-
worker, Juan Perez, who pushed Rodriguez to the floor and hit him several times.
Rodriguez did not fight back. Two other employees separated Perez and
Rodriguez.
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After the fight, Gonzalez interviewed Perez and Rodriguez independently.
Rodriguez provided Gonzalez a written statement claiming no knowledge of Perez
or why he attacked. According to Gonzalez, Perez stated that Rodriguez had
provoked him by verbally harassing him and calling him a “maricon,” a slur in
Spanish for a homosexual man. After meeting with Perez and Rodriguez,
Gonzalez immediately terminated Perez’s employment. 1
Two days after the attack, Rodriguez went to the doctor and made a claim
for workers’ compensation benefits. Rodriguez was on leave for two weeks and
was cleared to return to work on April 28, 2014.
In the meantime, Gonzalez continued to investigate Rodriguez’s role in the
altercation. Gonzalez testified that he reviewed video footage (without audio) of
the incident and interviewed numerous other employees. No employees witnessed
what happened before the fight. Nonetheless, a “Manager on Duty” sent Gonzalez
an e–mail stating that he spoke with Perez after the fight, and Perez stated that he
attacked Rodriguez because Rodriguez had been calling him a “maricon” and had
made negative comments about his wife. The manager also referenced an incident
in March 2014, when Rodriguez and another employee had argued.
1
Rodriguez disputes whether Perez was, in fact, terminated. He relies on deposition
testimony from Perez that after the fight on April 12, Gonzalez did not directly tell him he was
terminated. However, Perez did not return to work after April 12, and other documents in the
record, such as a disciplinary report and a separation notice, make clear that Gonzalez terminated
Perez on April 12 for fighting, even if he did not tell Perez so at the time. No genuine factual
dispute exists about this issue.
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After consulting with the Regional Manager, Shawnpaul Booth, Gonzalez
made the decision to terminate Rodriguez’s employment for being involved in the
altercation. Gonzalez testified that he made the decision to terminate Rodriguez
about a week before Rodriguez returned to work from leave on April 28 or 29.
Gonzalez informed Rodriguez of his termination when he returned. The
disciplinary report provided to Rodriguez stated,
It appeared that [Rodriguez] said something to [Perez] as
he was walking by that angered him. [Perez] pushed
[Rodriguez], who fell to the ground. [Perez] mounted on
top of him and struck him several times. [Rodriguez] did
not fight back. He simply grabbed (hugged) onto [Perez]
until [two other employees] separated the two of them.
Rodriguez was 61 years old when terminated.
CAS’s Employee Handbook contains policies and procedures related to
employee conduct. Section 303(B) provides, in relevant part, that fighting on work
premises or “using threatening or abusive language” may be cause for immediate
termination. Section 305 outlines a generally applicable progressive disciplinary
policy.
After his termination, Rodriguez filed this lawsuit alleging that he was
terminated because of his age and retaliated against for having filed for workers’
compensation benefits. The district court granted summary judgment to CAS, and
Rodriguez timely brought this appeal.
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II.
We review the district court’s grant of summary judgment de novo, viewing
the evidence and drawing all reasonable inferences in favor of Rodriguez, the non-
moving party. Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1307 (11th Cir.
2012). 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). “[T]here is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury to return a verdict for
that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505,
2511 (1986).
III.
Both the ADEA and the FCRA prohibit age discrimination in employment.
29 U.S.C. § 623(a)(1); Fla. Stat. Ann. § 760.10(1)(a). We analyze both claims
jointly under the framework used to decide ADEA actions. See Zaben v. Air
Products & Chemicals, Inc., 129 F.3d 1453, 1455 n. 2 (11th Cir. 1997) (“Age
discrimination claims brought under the Florida Civil Rights Act have been
considered within the same framework used to decide actions brought pursuant to
the ADEA.”). To prevail on an ADEA claim, the plaintiff must prove by a
preponderance of the evidence that the employer’s adverse decision would not
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have occurred “but for” the plaintiff’s age. Gross v. FBL Fin. Servs., Inc., 557
U.S. 167, 180, 129 S. Ct. 2343, 2352 (2009).
When the plaintiff supports his claim with circumstantial evidence, we apply
the burden-shifting framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S. Ct. 1817 (1973). Kragor, 702 F.3d at 1308. Under this
framework, the plaintiff must first establish a prima facie case of age
discrimination, which creates a rebuttal presumption that the employer acted
illegally. Id. The parties agree that Rodriguez established his prima facie case.
Once a prima facie case is established, “the burden of production shifts to the
employer to articulate a legitimate, non-discriminatory reason for the challenged
employment action.” Mazzeo v. Color Resolutions Int’l, LLC, 746 F.3d 1264,
1270 (11th Cir. 2014) (internal quotation marks omitted).
If the employer meets its burden of producing a legitimate reason for its
action, “the presumption of discrimination is eliminated,” and the plaintiff then has
the opportunity to show that the “reasons given by the employer were not the real
reasons for the adverse employment decision.” Chapman v. AI Transport, 229
F.3d 1012, 1024 (11th Cir. 2000) (en banc) (quoting Combs v. Plantation Patterns,
106 F.3d 1519, 1528 (11th Cir. 1997)); see Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 146-48, 120 S. Ct. 2097, 2108-09 (2000). The plaintiff’s
burden of showing that the employer’s reason is pretextual “merges with the
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plaintiff’s ultimate burden of persuading the court that the employer intentionally
discriminated against [him].” Alvarez v. Royal Atl. Developers, Inc., 610 F.3d
1253, 1265 (11th Cir. 2010). “If the plaintiff does not proffer sufficient evidence
to create a genuine issue of material fact regarding whether each of the defendant
employer’s articulated reasons is pretextual, the employer is entitled to summary
judgment on the plaintiff’s claim.” Chapman, 229 F.3d at 1024-25.
In evaluating evidence of pretext, we do not sit as a super-personnel
department judging the wisdom, fairness, or accuracy of the employer’s decision.
See Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991). Rather,
“our inquiry is limited to whether the employer gave an honest explanation of its
behavior.” Id. (internal quotation marks omitted); see Alvarez, 610 F.3d at 1266
(“The inquiry into pretext centers on the employer’s beliefs, not the employee’s
beliefs . . . .”). Therefore, in attempting to show pretext, a plaintiff must meet the
employer’s reason “head on and rebut it”; he cannot simply recast the employer’s
reason, substitute his business judgment for that of the employer, or otherwise
quarrel with the wisdom of the decision. Alvarez, 610 F.3d at 1265.
Initially, Rodriguez maintains that this circuit’s jurisprudence—Chapman in
particular—applying the McDonnell-Douglas framework at summary judgment
effectively treats discrimination cases differently than other cases. Cf. Chapman,
229 F.3d at 1026 (“The long and short of it is that the summary judgment rule
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applies in job discrimination cases just as in other cases.”). Specifically,
Rodriguez contends that an employer in this circuit satisfies its burden under the
McDonnell-Douglas framework, and may be entitled to summary judgment, when
it merely “raises a genuine issue of fact as to whether it discriminated against the
plaintiff,” see id. at 1024 (quotation omitted), which, Rodriguez asserts, is
inconsistent with the movant’s general summary-judgment burden to show the
absence of a genuine dispute of material fact, see Fed. R. Civ. P. 56(a). We do not
reach the question of whether there is any inconsistency between these respective
burdens because we, like the district court, are bound by prior precedent, Smith v.
GTE Corp., 236 F.3d 1292, 1302-03 (11th Cir. 2001), and Rodriguez makes no
direct claim that CAS failed to meet its summary-judgment burden in this case.
Turning to the merits, Rodriguez first asserts that CAS did not offer a
legitimate, non-discriminatory reason for terminating him. We disagree. A
legitimate reason is “one that might motivate a reasonable employer.” Chapman,
229 F.3d at 1030. The employer’s explanation of its reasons must be “clear and
reasonably specific so that the plaintiff be afforded a full and fair opportunity to
demonstrate pretext.” Id. at 1034 (internal quotation marks omitted).
Here, CAS explained that it fired Rodriguez because he was involved in a
fight on work premises and it was unable to determine that he was not responsible
for inciting the fight. Fighting with or using abusive language towards another
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employee on work premises in violation of company policy plainly qualifies as a
legitimate, non-discriminatory reason for terminating an employee. And given
Rodriguez’s involvement in the altercation, Perez’s explanation that he attacked
Rodriguez in retaliation for his harassing comments, and the unlikelihood that an
employee would attack another employee without provocation, a reasonable
employer could have concluded that, in the absence of some evidence disproving
Perez’s allegations, Rodriguez may have been responsible for inciting the fight in
violation of company policy. Further, this explanation provided a clear and
reasonably specific factual basis for Rodriguez to have a “full and fair opportunity”
to show pretext. Accordingly, CAS met its burden of production, and Rodriguez
then had the opportunity to show pretext.
Rodriguez contends that the employer’s explanation is pretextual for three
main reasons, none of which we find persuasive. Rodriguez first contends that
pretext is shown by the fact that CAS had a history of terminating older employees
for exercising their workers’ compensation rights. In support of this contention at
summary judgment, he produced two summary lists—one consisting of younger
“employees treated more favorably with respect to their worker’s compensation
claims,” and another of “older employees terminated shortly following worker’s
compensation claims.” The lists contained names, ages, and Bates-stamp numbers
only, and Rodriguez barely referenced the lists in his response in opposition to
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summary judgment. In these circumstances, the district court did not err in
according these lists no probative weight because they were conclusory and
unsupported. See Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir.
2000) (conclusory allegations without specific supporting facts are insufficient to
create a genuine issue for trial).
Second, Rodriguez contends that CAS gave shifting and inconsistent
justifications for the adverse action, failed to follow its own procedures, and
inadequately documented its investigation. An employer’s inconsistent or
“shifting” reasons for an employment action may constitute evidence that the
employer’s proffered reason for the challenged employment action is not credible.
Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1193-95 (11th Cir.
2004). Similarly, an employer’s failure to follow its own policies can be evidence
of pretext. Morrison v. Booth, 763 F.2d 1366, 1374 (11th Cir. 1985) (“Departures
from normal procedures may be suggestive of discrimination.”).
Here, CAS’s position was and continues to be that Gonzalez terminated
Rodriguez for his possible involvement in the fight with Perez, who also was
terminated. Gonzalez received conflicting accounts of the incident from Perez and
Rodriguez, he fired Perez immediately, and then he conducted an investigation of
Rodriguez’s role in the fight. While the investigation failed to either corroborate
or rule out Perez’s allegations that Rodriguez had instigated the fight, Gonzalez
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decided to terminate Rodriguez’s employment because Gonzalez could not
disprove Perez’s allegations.
Rodriguez has not shown any inconsistency that is suggestive of pretext.
Rodriguez wonders why he was not fired immediately if CAS supposedly had a
“zero tolerance” for fighting, and he suggests that he was only fired once CAS
learned he had filed a workers’ compensation claim. However, given that
Rodriguez claimed to have no knowledge of why the attack happened, Gonzalez
reasonably investigated the incident before taking any disciplinary action. The
record is also clear that Gonzalez began investigating before Rodriguez filed for
benefits. Furthermore, no internal inconsistency exists in the disciplinary report
because, while it stated that Rodriguez “did not fight,” it also indicated that
Rodriguez may have been responsible for instigating the fight: “It appeared that
[Rodriguez] said something to [Perez] as he was walking by that angered him.” As
a whole, Gonzalez’s explanation of his investigation and reasons for terminating
Rodriguez is consistent with the disciplinary report.
Rodriguez also has not shown that CAS violated its own policies or
procedures. CAS’s failure to utilize its progressive disciplinary policy, standing
alone, is not evidence of pretext because the Employee Handbook specifically
provides that fighting or using threatening or abusive language at work may be
cause for immediate termination. Additionally, Rodriguez’s arguments regarding
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the adequacy of the investigation and the lack of documentation do not call into
question whether Gonzalez, the decisionmaker, gave an honest explanation for his
decision to determine Rodriguez. See Elrod, 939 F.2d at 1470.
Finally, Rodriguez claims that CAS punished him more harshly than
younger, similarly situated comparators. The district court addressed and
distinguished the comparators offered by Rodriguez, and Rodriguez does not
challenge the district court’s reasoning in his brief on appeal.2 We have reviewed
the comparators put forth by Rodriguez and are satisfied that the district court
correctly found that none of the comparators were outside of his protected age
group, were treated more favorably than Rodriguez based on similar conduct, and
were otherwise similarly situated to permit comparison. See Burke-Fowler v.
Orange Cty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006) (“When a plaintiff 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.” (internal quotation marks
omitted)); see also Rojas v. Florida, 285 F.3d 1339, 1343 (11th Cir. 2002)
(“Different supervisors may impose different standards of behavior, and a new
2
The district court did not address two of Rodriguez’s proffered comparators, finding
that Rodriguez had failed to provide supporting documentation for them. Rodriguez has
abandoned his challenge to that determination by failing to address it in his initial brief on
appeal. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680-81 (11th Cir. 2014).
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supervisor may decide to enforce policies that a previous supervisor did not
consider important.”).
Overall, Rodriguez has not produced sufficient evidence for a reasonable
jury to conclude that CAS’s explanation for his termination was pretextual. Even
assuming that the reason Rodriguez was terminated was a bad one, or that
Gonzalez was mistaken that Rodriguez may have instigated the fight, Rodriguez
has identified no evidence to show that CAS’s proffered reason was not the true
reason or that age discrimination was likely the real reason. See Alvarez, 610 F.3d
at 1266-67. Rodriguez cannot prevail simply by quarreling with the wisdom or
fairness of CAS’s decision to terminate him despite finding no conclusive evidence
that he was involved in the fight. See id. at 1266. We affirm the grant of summary
judgment to CAS on Rodriguez’s ADEA and FCRA claims.
IV.
The Florida Workers’ Compensation Law (“WCL”) contains an anti-
retaliation provision: “No employer shall discharge, threaten to discharge,
intimidate, or coerce any employee by reason of such employee’s valid claim for
compensation or attempt to claim compensation under the Workers’ Compensation
Law.” Fla. Stat. Ann. § 440.205. Claims brought under the statute are analyzed
under the same burden-shifting framework as Rodriguez’s age-discrimination
claims, and the same principles governing pretext also apply. Ortega v. Eng’g Sys.
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Tech., Inc., 30 So. 3d 525, 528-29 (Fla. Dist. Ct. App. 2010). Once a defendant
provides a legitimate reason for the adverse action, the burden shifts back to the
plaintiff to produce sufficient evidence for a reasonable factfinder to conclude that
the reason is merely pretext for prohibited, retaliatory conduct. Id. at 529.
Here, assuming arguendo that Rodriguez established a prima facie case of
retaliation under the WCL, he has not shown that CAS’s reason for his termination
is pretextual. While a close temporal proximity between Rodriguez’s claim for
compensation under the WCL and his termination exists, Rodriguez offered no
evidence that CAS’s reason for terminating his employment was not what actually
motivated its conduct. See id. The record is clear that Rodriguez was already
under a disciplinary investigation when he filed for workers’ compensation
benefits. Nothing in § 440.205 prohibits an employer from discharging an
employee who has filed a workers’ compensation claim for reasons unrelated to
the claim. In addition, for reasons we have already explained, the district court did
not err in refusing to consider Rodriguez’s conclusory and unsupported summaries
of other employees who had filed workers’ compensation claims. Thus, Rodriguez
did not raise a genuine issue of material fact that CAS’s non-discriminatory reason
for his termination was pretext for retaliation. See Ortega, 30 So. 3d at 529. We
therefore affirm the grant of summary judgment on his WCL retaliation claim.
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V.
For the reasons stated, we affirm the district court’s grant of summary
judgment in favor of Defendant-Appellee CAS on Plaintiff-Appellant Rodriguez’s
claims of age discrimination in violation of the ADEA and the FCRA and
retaliation in violation of the WCL.
AFFIRMED.
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