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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-14155
Non-Argument Calendar
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D.C. Docket No. 5:17-cv-00101-TES
WAYNE JACKSON,
Plaintiff-Appellant,
versus
BLUE BIRD CORPORATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(November 15, 2019)
Before MARTIN, ROSENBAUM, and ANDERSON, Circuit Judges.
PER CURIAM:
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Wayne Jackson filed a lawsuit against his former employer, Blue Bird
Corporation (“Blue Bird”), alleging racial discrimination in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–3(a) (“Title VII”).1 Blue Bird
filed a motion for summary judgment, which the district court granted. Jackson
appeals the district court’s grant of summary judgment in favor of Blue Bird,
arguing that the district court erred when it determined that he had not established
a prima facie case of racially discriminatory discipline. For the reasons that
follow, we affirm the district court’s decision.
I. BACKGROUND
Jackson is an African-American man who was employed as a line shift
supervisor at Blue Bird’s school bus assembly plant in Fort Valley, Georgia, from
2013 until he was terminated in October 2016. Three employees under Jackson’s
control suffered health issues at work during the summer of 2016.
The first occurred when William Harris reported to an employee in Blue
Bird’s medical center, on June 2, that he had a skin irritation. The medical center
employee asked Jackson to move Harris away from the insulation, which he
believed was causing Harris’s rash. The following month, on July 28, Harris
1
Jackson also included a retaliation claim in his complaint, which the court resolved against him
when granting summary judgment. Because Jackson 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,
680–81 (11th Cir. 2014) (holding that a legal claim or argument that is not plainly and prominently
raised in an initial brief is deemed abandoned).
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returned to the medical center because the rash had spread. Harris told the medical
center employee that he had not been moved away from the insulation, so the
medical center employee asked Jackson’s supervisor, Shelby Hill, to move Harris
away from insulation. Hill indicated that he would speak with Jackson about
moving Harris away from the insulation. On August 10, Harris again reported to
the medical center employee that he still had not been moved.
The second incident involved Lamontre Spivey.2 Spivey experienced nausea
and dizziness during the night shift on July 27. He sought treatment in the medical
center but found that it was closed. Spivey then went to Jackson’s office and told
him his symptoms. Jackson sat him down, gave him some water and offered him a
break. After 10 to 15 minutes, Spivey returned to work. Jackson offered Spivey a
longer break but Spivey refused.
After returning to the line, Spivey vomited. He again sought care from the
medical center, which was still closed. Spivey went to his truck, and after
vomiting again, drove himself to the hospital where he was diagnosed with double
kidney failure.3 Hill notified his supervisor, Jerry Rowland, of the Spivey incident
in a nightly email summarizing the night shift’s events.
2
Jackson testified at his deposition that Spivey had reported hand cramping and had gone to the
medical department, but it was closed.
3
Jackson admitted that he had not known that Spivey left work that day.
3
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The third incident involved Michael Jackson. Michael Jackson sustained a
cut on his thigh. While on his way to the medical department to get treatment for a
cut on his leg, “Wayne Jackson said ‘that little thing?’ and told [him] to go back to
work.” When Michael Jackson went to the medical center, he told the medical
center employee that Wayne Jackson and another manager had discouraged him
from seeking care. When Rowland investigated this claim, a medical employee
told Rowland that Michael Jackson was upset because he had a cut on his leg that
he wanted checked by medical staff, but Wayne Jackson had told him that he did
not need to go to medical and should get back to work. During the internal
investigation, Jackson and the other manager said they had been kidding when they
discouraged him from seeking care.
Blue Bird’s Senior Manager of Health and Environmental Safety, Rena Hart,
investigated each incident. Her investigation report noted that medical employees
had brought her other reports regarding Jackson’s treatment of employees’ medical
issues. Based on her investigation, she ultimately recommended to Michael
McCurdy, Blue Bird’s director of human resources (“HR”), that Jackson be
terminated. McCurdy agreed and accepted her recommendation.
After McCurdy accepted the recommendation to terminate Jackson, Jackson
sent an email to Rowland requesting a meeting with Rowland, Hill, and an HR
representative to discuss the medical allegations against him. Because McCurdy
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had agreed with Hart’s recommendation, he took the proposed meeting as an
opportunity to discuss the medical situations and to carry out the termination.
During the meeting, McCurdy warned Jackson that his job was in jeopardy based
on the medical allegations and asked for his two-weeks’ notice. Jackson responded
that he would let McCurdy know when he would give his two-weeks’ notice.
Two days after the meeting, Hill told Jackson to go to Rowland’s office
where Rowland asked him whether he intended to work over Labor Day weekend
as scheduled.4 Jackson stated that he would try, and Rowland responded that
trying was not good enough and “told him to go ahead and get an early start then to
the weekend.” 5
Following this incident, Jackson requested and received FMLA leave from
September 5 through October 3, 2016, and then used vacation time to extend his
leave to October 10. During this period, Jackson filed formal, internal complaints
alleging discrimination and retaliation. Philomena Washington, a human resources
specialist, was assigned to investigate his complaints and she directed Jackson to
remain at home during the investigation. Washington ultimately concluded that
4
When Hill told Rowland that Jackson might not be working over Labor Day, Rowland told Hill
to ask Jackson about it because Jackson was scheduled to work that weekend.
5
Rowland testified that he had spoken with McCurdy in HR, and “HR said that if [Jackson] refused
to work, that we should send him home.”
5
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Jackson’s allegations were meritless. Blue Bird terminated Jackson on October 24,
2016, for poor job performance.
In 2017, Jackson sued Blue Bird, alleging, in part, racial discrimination in
discipline, in violation of Title VII. Blue Bird filed a motion for summary
judgment, which the district court granted after finding that Jackson had not
established a prima facie case of disparate treatment. Jackson timely appealed.
II. STANDARD OF REVIEW
We review “de novo a district court’s grant of summary judgment, applying
the same legal standards as the district court.” Chapman v. AI Transp., 229 F.3d
1012, 1023 (11th Cir. 2000). The party seeking summary judgment must show
that “there is no genuine dispute as to any material fact and that the movant is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a). We will not
make credibility determinations or weigh the evidence because summary judgment
is only proper where there are no genuine issues of material fact and the movant is
entitled to judgment as a matter of law. Frederick v. Sprint/United Mgmt. Co., 246
F.3d 1305, 1311 (11th Cir. 2001). “In order to survive summary judgment, a
plaintiff alleging intentional discrimination must present sufficient facts to permit a
jury to rule in [his] favor.” Lewis v. City of Union City, Ga., 918 F.3d 1213, 1220
(11th Cir. 2019) (en banc).
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III. DISCUSSION
Title VII prohibits employers from firing, or intentionally discriminating
against, an employee “because of” his race. See 42 U.S.C. § 2000e-2(a)(1). A
plaintiff bears the burden of proving discrimination by a preponderance of the
evidence. See Crawford v. Carroll, 529 F.3d 961, 975 (11th Cir. 2008).
Because Jackson presents circumstantial evidence of discrimination, we
apply the McDonnell Douglas burden-shifting framework to analyze his claim.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under this
framework, Jackson bears the initial burden to establish a prima facie case of race
discrimination. If we find that Jackson has established a prima facie case of
discrimination, a presumption of discrimination arises in his favor and Blue Bird
must articulate legitimate, nondiscriminatory reasons for its conduct. Id. at 802–
03. If Blue Bird articulates such reasons, Jackson must then show that the Blue
Bird’s articulated reasons were merely pretext for the true discriminatory motive.
Id. at 804.
A Title VII plaintiff may establish a prima facie case of discrimination when
he shows, by a preponderance of the evidence, that he (1) is a member of a
protected class; (2) was qualified for the position he held; (3) suffered an adverse
employment action; and (4) was treated less favorably than a similarly-situated
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employee outside the protected class.6 Flowers v. Troup Cty., 803 F.3d 1327,
1336 (11th Cir. 2015) (quoting Maynard v. Bd. of Regents, 342 F.3d 1281, 1289
(11th Cir. 2003)).
Here, only the third and fourth prima facie prongs are at issue. Jackson
argues that the district court erred when it determined that he had not established a
prima facie case because: (1) Blue Bird fired him, which was an adverse
employment action; and (2) he identified a valid comparator employee who was
treated more favorably, Shelby Hill.
With regard to the third prima facie prong—proving an adverse employment
action—“an employee must show a serious and material change in the terms,
conditions, or privileges of employment.” Davis v. Town of Lake Park, Fla., 245
F.3d 1232, 1239 (11th Cir. 2001). Jackson argues that the district court erred in
finding that he did not raise his termination as an adverse employment action until
he was opposing Blue Bird’s motion for summary judgment and, as a result, in
declining to consider his termination for the purposes of his disparate treatment
claim.
6
In this case, Jackson has attempted to establish a prima face case only in this manner. For
example, he has not attempted to present “a convincing mosaic of circumstantial evidence that
would allow a jury to infer intentional discrimination by the decisionmaker,” an alternative manner
noted in our caselaw. Silverman v. Bd. of Educ., 637 F.3d 729, 734 (11th Cir. 2011).
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Jackson is correct. 7 Blue Bird conceded that it fired Jackson for preventing
employees from going to the plant’s medical staff and that Jackson’s termination
was an adverse employment action. A review of Jackson’s complaint reveals that
he did, in fact, mention his termination in his Title VII disparate treatment
allegations. 8 Because a termination is an adverse employment action, Jackson has
established the first three elements of his prima facie case. See Davis, 245 F.3d at
1239; see also 42 U.S.C. § 2000e-2(a)(1).
We now turn to the fourth and final element of the prima facie case Jackson
sought to establish: whether Jackson adequately showed that Blue Bird treated
“similarly situated” employees outside his class more favorably than it treated him.
For Jackson to survive a motion for summary judgment, he must have
demonstrated the existence of a genuine dispute of material fact as to the fourth
prong of the McDonnell Douglas analysis. This he did not do.
“A plaintiff asserting an intentional-discrimination claim under McDonnell
Douglas must demonstrate that [he and his] proffered comparators were ‘similarly
7
Although the district court’s finding was erroneous, affirmance is nevertheless appropriate for
the reasons discussed. See Kernel Records Oy v. Mosley, 694 F.3d 1294, 1309 (11th Cir. 2012)
(explaining that we may affirm the judgment of the district court on any ground supported by the
record).
8
Jackson also argues that the district court erred in finding that he did not raise his termination as
an adverse employment action until he was opposing Blue Bird’s motion for summary judgment
and, as a result, declining to consider his termination for the purposes of his disparate treatment
claim. Although we will assume that the court’s finding was erroneous, affirmance is nevertheless
appropriate for the reasons already discussed. See Kernel Records, 694 F.3d at 1309 (explaining
that we may affirm the judgment of the district court on any ground supported by the record).
9
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situated in all material respects.’” Lewis, 918 F.3d at 1218. It is not “necessary
for a plaintiff to prove purely formal similarities” like holding “precisely the same
[job] title.” Id. at 1227. “Nor will minor differences in job function disqualify a
would-be comparator.” Id. However, we expect that a similarly situated
comparator will ordinarily fall “under the jurisdiction of the same supervisor as the
plaintiff.” Id. at 1227–28. In other words, a valid comparator must “be
sufficiently similar, in an objective sense, that they ‘cannot reasonably be
distinguished.’” Id. at 1228 (citing Young v. United Parcel Serv., Inc., 135 S. Ct.
1338, 1355 (2015)).
Jackson argues that the district court erred in finding that he failed to
identify a valid comparator because he identified Shelby Hill (a Caucasian man) as
a valid comparator.9 Jackson argues that Hill was a valid comparator because he
and Jackson had supervisory roles with overlapping duties, and they were both
involved in two incidents Blue Bird cited for Jackson’s termination.
We find that Hill is not a valid comparator, 10 even assuming without
deciding that Hill, as Jackson’s direct supervisor, could be a valid comparator for
Jackson on this record. We expect a similarly situated comparator to “have
9
Jackson does not challenge the district court’s determination that Rowland, the night shift Plant
Manager, was not a valid comparator. Because Jackson does not challenge that on appeal, any
issue in this respect is abandoned. See Sapuppo, 739 F.3d at 680–81.
10
Blue Bird argues that Hill was not a similarly situated employee because he was the plant’s only
night shift manager, whereas Jackson was one of ten line shift supervisors.
10
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engaged in the same basic conduct (or misconduct) as the plaintiff” and to “share
the plaintiff’s employment or disciplinary history.” Id. at 1227, 1228. Jackson
argues that Rowland’s decision to blame him for the medical incidents and not Hill
was disparate treatment in violation of Title VII because “Hill shared comparable
responsibilities regarding employee medical concerns with Jackson.” In particular,
he alleges that: (1) both Hill and Jackson were contacted when it became clear that
Spivey was seriously ill, and (2) Hill failed to move Harris due to his rash but only
Jackson was punished. Because Hill’s conduct mirrored Jackson’s in the two most
serious incidents but Hill was not disciplined, Jackson insists that Hill is a valid
comparator from whom disparate treatment can be inferred.
The record indicates otherwise. With respect to the three medical incidents
that formed the basis for Jackson’s termination, Hill had only passing involvement
in the first two incidents—namely, those involving Harris and Spivey. Hill was
informed of Harris’s rash on July 28 by a Blue Bird medical department employee,
who asked Hill to move Harris away from the insulation that was causing the rash.
Hill said he would speak to Jackson about moving Harris, but the record does not
reflect whether Hill ever did so. And Hill had even less involvement in the Spivey
incident; he was merely responsible for notifying Rowland about the Spivey
incident in a nightly recap of the shift’s events.
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We cannot say that the conduct for which Jackson was held accountable
appears to be the same basic conduct in which Hill is alleged to have engaged.
Even if we assume that Hill failed to talk to Jackson about moving Harris, Jackson
still ignored earlier instructions to reassign an employee that came directly from
the medical office. Jackson allowed a dehydrated employee to return to work; Hill
did not. And Hill was not involved at all with the incident in which Wayne
Jackson told Michael Jackson not to obtain medical treatment. Overall, Hill’s
limited involvement in two of the three medical incidents that resulted in Jackson’s
termination does not persuade us that Hill “engage[d] in the same basic conduct
(misconduct)” as Jackson.
In conclusion, because Jackson has failed to identify a comparator who is
“similarly situated in all material respects” but received different treatment, there is
no genuine dispute of material fact as to the fourth prong of the McDonnell
Douglas analysis. Jackson has thus failed to establish a prima facie case of
discrimination.
Because we find that Jackson has not established a prima facie case of
discrimination, we need not apply McDonnell Douglas’s presumption of
discrimination in his favor. 411 U.S. at 802–03. We note, however, that Blue Bird
has articulated a legitimate nondiscriminatory reason for terminating Jackson’s
employment: he was fired because he acted inappropriately regarding
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subordinates’ medical situations. Yet Jackson has failed to rebut Blue Bird’s
explanation and demonstrate that the reasons given for Blue Bird’s actions were
pretext for race discrimination. See, e.g., St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 515 (1993) (holding that a legitimate nondiscriminatory reason proffered by
employer is not “pretext for discrimination unless it is shown both that the reason
was false and that discrimination was the real reason”) (citation omitted). Jackson
contends that Blue Bird’s reasons for terminating him were pretext because it
provided no records of Hart’s investigation or recommendation and did not explain
why it held him at fault for the employees’ medical incidents. But these arguments
do not rebut, head-on, the legitimate and nondiscriminatory reason proffered by
Blue Bird. To show pretext, an employee must demonstrate “such weaknesses,
implausibilities, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could find them
unworthy of credence.” McCann v. Tillman, 526 F.3d 1370, 1375 (11th Cir. 2008)
(quoting Thomas v. Cooper Lighting, 506 F.3d 1364, 1375 (11th Cir. 2008)).
Moreover, Jackson does not point to anything in the record that shows Blue Bird’s
proffered explanation was false or that racial discrimination was the real reason
driving its decision to terminate him.
On appeal, Jackson’s failure to establish pretext is as fatal as his failure to
establish a prima facie case. See Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230,
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1236, 1236 n. 5 (11th Cir. 2004) (concluding that the district court erred in
concluding the plaintiff had not established a prima facie case, but summary
judgment was proper anyway because, although not addressed by the district court,
the record showed that the plaintiff had failed to establish pretext). Even if
Jackson had established a prima facie case of discrimination, we would
nevertheless affirm the district court’s grant of summary judgment in favor of Blue
Bird because the record clearly demonstrates that Jackson failed to establish
pretext.
Accordingly, the district court’s decision is
AFFIRMED.
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