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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11380
Non-Argument Calendar
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D.C. Docket No. 1:13-cv-03430-RWS
STEVE L. THOMAS,
Plaintiff-Appellant,
versus
HOME DEPOT USA, INC.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Georgia
________________________
(April 25, 2018)
Before WILLIAM PRYOR, ANDERSON, and EDMONDSON, Circuit Judges.
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PER CURIAM:
Plaintiff Steve Thomas, proceeding pro se,1 appeals the district court’s entry
of judgment as a matter of law in favor of Home Depot USA, Inc. (“Home
Depot”). The district court entered judgment following a jury trial on Plaintiff’s
failure-to-hire race discrimination claim brought under 42 U.S.C. § 2000e-2 (“Title
VII”). Reversible error has been shown; we vacate the judgment and remand for
further proceedings.
Briefly stated, Plaintiff’s claim arises from Home Depot’s rescission of an
offer of employment. Plaintiff (who is African American) applied online for a
position at Home Depot. Plaintiff was scheduled for and attended an in-person
interview on 5 September 2012. Later that day, Plaintiff contacted Home Depot’s
Retail Staffing Center (“RSC”) to complain that he felt rushed and discriminated
against during the interview. In response to Plaintiff’s complaint, an RSC manager
contacted the hiring manager at a second Home Depot store -- Heinrich Canthal --
and requested that Canthal interview Plaintiff. Canthal was told that Plaintiff had
had a bad experience during an interview at another store.
Immediately following Plaintiff’s second interview on September 11,
Canthal offered Plaintiff a part-time position with the merchandising execution
1
We construe liberally pro se pleadings. Tannenbaum v. United States, 148 F.3d 1262, 1263
(11th Cir. 1998).
2
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team (“MET”), conditioned on Plaintiff’s passing a drug screen and a criminal
background check. Canthal also had a second part-time opening on his team,
which he offered to another applicant.
Meanwhile – Home Depot says that after Plaintiff had been offered the job
but before the hiring process was finalized -- a current full-time MET associate
(Tony Baggett, who was African American) requested a transfer to Canthal’s team.
Baggett was a former supervisor with whom Canthal had worked in the past.
Canthal decided to fill his two part-time openings -- one of which had been offered
to Plaintiff -- with a full-time internal transfer. Ultimately, Baggett decided not to
make the transfer, but a second full-time MET supervisor (Michael Warren, who
was Caucasian) requested a transfer to Canthal’s team and accepted the full-time
position.
On 14 September, Plaintiff called Canthal about the status of his application.
Canthal told Plaintiff that the position was no longer available, but provided no
explanation for his decision to rescind the offer. Plaintiff also alleges that Canthal
said he had received a call from Kip Armstrong: the store manager at the Home
Depot store where Plaintiff first interviewed and whom Plaintiff believed
mistakenly was the person who interviewed him on 5 September. 2 Armstrong
2
The record shows -- and Plaintiff concedes -- that Armstrong conducted no interview of
Plaintiff and that Plaintiff never spoke with or saw Armstrong on the pertinent day.
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allegedly told Canthal about Plaintiff’s complaint to the RSC and commented to
Canthal that “some African Americans are rabble rousers.”
Plaintiff filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”), alleging that his job offer was rescinded based on race
discrimination. Plaintiff says he first learned that the MET position had been filled
by a full-time internal transfer in July 2013, based on a letter he received from the
EEOC. The EEOC dismissed Plaintiff’s complaint and issued a right-to-sue letter.
Plaintiff then filed pro se this civil action against Home Depot. Following a
bench trial, the district court entered judgment in favor of Home Depot. Thomas
appealed and this Court vacated and remanded, on grounds that Thomas was
entitled to a jury trial. See Thomas v. Home Depot USA, Inc., 661 F. App’x 575
(11th Cir. 2016) (unpublished).
On remand, Plaintiff’s case proceeded to a jury trial. Following Plaintiff’s
case-in-chief, the district court granted Home Depot’s motion for a judgment as a
matter of law, pursuant to Fed. R. Civ. P. 50. The district court concluded -- as a
matter of law -- that Plaintiff had failed to produce evidence sufficient to allow a
reasonable jury to determine that Home Depot’s legitimate nondiscriminatory
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reason for rescinding the offer of employment was a pretext for race
discrimination.3
I.
Plaintiff first challenges the district court’s exclusion of Armstrong’s alleged
“rabble rouser” comment. 4
We review for abuse-of-discretion the district court’s evidentiary rulings.
Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1304 (11th Cir. 2016). Under this
standard, we will affirm “unless the district court has made a clear error of
judgment or has applied an incorrect legal standard” and the error “affects the
substantial rights of the parties.” Id. “Substantial rights are affected if one cannot
say, with fair assurance that the judgment was not substantially swayed by the
error.” Id. (quotations and alteration omitted).
3
Because this case is a circumstantial evidence case, the burden-shifting framework established
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), applies. Under this framework, the
plaintiff must establish a prima facie case, which creates a presumption of unlawful
discrimination against the employee. The employer may then rebut that presumption with
legitimate, nondiscriminatory reasons for the adverse employment acts. The employee must then
proffer sufficient evidence to create a genuine issue of material fact that the defendant’s
articulated reasons are pretextual. See Crawford v. Carroll, 529 F.3d 961, 976 (11th Cir. 2008).
4
We reject Plaintiff’s contention that the alleged “rabble rouser” comment constitutes direct
evidence of discrimination. “[O]nly the most blatant remarks, whose intent could mean nothing
other than to discriminate on the basis of some impermissible factor constitute direct evidence of
discrimination.” Akouri v. State of Fla. Dep’t of Transp., 408 F.3d 1338, 1347 (11th Cir. 2005)
(quotations omitted). Where -- as here -- “the alleged statement suggests, but does not prove, a
discriminatory motive, then it is considered circumstantial evidence.” See id.
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We conclude that the exclusion of Armstrong’s alleged “rabble rouser”
comment constituted an abuse of discretion. In explaining its ruling to exclude the
comment, the district court said only that nothing evidenced that the decision-
maker in the case had ever heard the comment. Plaintiff, however, contends that
the decision-maker (Canthal) was in fact the person who told Plaintiff about the
comment. That no additional evidence in the record corroborates Plaintiff’s
allegation does not render Plaintiff’s testimony about the comment inadmissible.
Contrary to Home Depot’s arguments on appeal, we see no other permissible
grounds for excluding the comment. The “rabble rouser” comment is clearly
relevant to the question of whether Canthal acted with discriminatory motive. The
comment was made allegedly by one store manager to another store manager --
who was also the ultimate decision-maker in this case -- during a conversation
about Canthal’s decision to hire Plaintiff and that occurred close in time to
Canthal’s offer of employment. The comment, thus, cannot be characterized as a
stray remark unrelated to the decisional process. Cf. Steger v. G.E., 318 F.3d
1066, 1079 (11th Cir. 2003); Holifield v. Reno, 115 F.3d 1555, 1563-64 (11th Cir.
1997).
Relevant evidence may still be excluded if its probative value is outweighed
substantially by the danger of unfair prejudice or jury confusion. Fed. R. Evid.
403. But we have said that exclusion under Rule 403 is “an extraordinary remedy
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which should be used sparingly,” and that a district court’s discretion to do so is
“narrowly circumscribed.” Aycock v. R.J. Reynolds Tobacco, Co., 769 F.3d 1063,
1069 (11th Cir. 2014). Particularly given the high probative value of the “rabble
rouser” comment -- which also constituted Plaintiff’s chief evidence of a potential
racial motive -- exclusion under Rule 403 would have been inappropriate. Cf. id.
(“As evidence becomes more essential, its probative value becomes greater.”).
Having concluded that the “rabble rouser” comment was excluded
erroneously, we must now consider whether that error affected Plaintiff’s
substantial rights: was the error harmless? See Furcron, 843 F.3d at 1304.
Accordingly, in determining whether Home Depot was entitled to judgment as a
matter of law, we will consider both the evidence admitted at trial and the excluded
“rabble rouser” comment.
II.
We review de novo a district court’s entry of judgment as a matter of law.
Lipphardt v. Durango Steakhouse of Brandon, Inc., 267 F.3d 1183, 1186 (11th Cir.
2001). A grant of judgment as a matter of law is appropriate “when there is no
legally sufficient evidentiary basis for a reasonable jury to find for that party on
that issue.” Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1192
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(11th Cir. 2004). In reviewing the district court’s ruling, we consider all evidence
in the record as a whole, drawing all reasonable inferences in favor of the
nonmoving party. Id. at 1192-93. “Credibility determinations, the weighing of
evidence, and the drawing of legitimate inferences from the facts are jury
functions, not those of a judge.” Id. at 1193.
Home Depot says Plaintiff’s job offer was rescinded because a current full-
time MET associate with whom Canthal had worked in the past sought to transfer
to Canthal’s team. Accordingly, Canthal made a business decision to fill the two
part-time openings with one full-time internal transfer. This reason is sufficient to
satisfy Home Depot’s “exceedingly light” burden of articulating a legitimate
nondiscriminatory reason for the adverse employment act. See Smith v. Horner,
839 F.2d 1530, 1537 (11th Cir. 1988).
Because Home Depot’s “proffered reason is one that might motivate a
reasonable employer,” Plaintiff “must meet that reason head on and rebut it, and
[he] cannot succeed by simply quarreling with the wisdom of that reason.” See
Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1265-66 (11th Cir. 2010).
In the light of all the evidence, the district court must then determine “whether the
plaintiff has cast sufficient doubt on the defendant’s proffered reasons to permit a
reasonable factfinder to conclude that the employer’s proffered legitimate reasons
were not what actually motivated its conduct.” Combs v. Plantation Patterns,
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Meadowcraft, Inc., 106 F.3d 1519, 1538 (11th Cir. 1997) (quotations omitted). In
conducting this inquiry, the district court considers “whether the plaintiff has
demonstrated such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could find them unworthy of credence.” Id. (quotations
omitted).
Plaintiff contends the circumstances surrounding the rescission of his job
offer suggest that Home Depot’s proffered nondiscriminatory reason is not
believable. Plaintiff first points to the close timing between his being offered the
job on 11 September and having the offer rescinded on 14 September. Plaintiff
also contends that the plausibility of Home Depot’s proffered reason is undercut by
evidence that (1) Canthal provided initially no explanation about his decision to
rescind the offer; (2) Plaintiff first learned that the position was filled by an
internal transfer months later, after Plaintiff filed a complaint with the EEOC; and
(3) the full-time MET position was filled ultimately by someone other than Baggett
and a white person.5 We are persuaded that this evidence, together with the
excluded “rabble rouser” comment -- when viewed in the light most favorable to
5
Plaintiff also contends that Baggett was not employed by Home Depot in 2012 and that the 5
September interviewer created fraudulent test results. Plaintiff, however, has pointed to no
record evidence to support these allegations.
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Plaintiff -- is sufficient to allow a reasonable juror to disbelieve Home Depot’s
proffered nondiscriminatory reason.
Having made that determination, we conclude necessarily that the district
court erred in granting Home Depot’s motion for judgment as a matter of law.
Once a plaintiff produces evidence sufficient to cast doubt on the employer’s
proffered non-discriminatory reason, the question of whether race discrimination
was the real reason for the adverse employment decision becomes one for the jury
to decide. Combs, 106 F.3d at 1538.
III.
We reject Plaintiff’s argument that the district court erred in denying his
motion for costs associated with his earlier appeal. When -- as in this case -- this
Court vacates a judgment, “costs are taxed only as the court orders.” See Fed. R.
App. P. 39(a)(4). Because we already awarded costs in favor of Plaintiff following
his earlier appeal -- and granted Plaintiff’s requested cost amount -- the district
court denied properly Plaintiff’s motion for additional costs.
VACATED AND REMANDED.
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