Anthony Keith v. MGA, Inc.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 8, 2006
No. 06-12803 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 04-00716-CV-1-WKW-SRW

ANTHONY KEITH,

Plaintiff-Appellant,

versus

MGA, INC.,
and all Holding Companies
and affiliated entities,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Middle District of Alabama
_________________________

(November 8, 2006)

Before BLACK, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:
 Anthony Keith, an African American, appeals an order of the district court

that granted summary judgment in favor of his former employer, MGA, Inc. Keith

filed a complaint against MGA in which he alleged discriminatory termination, 42

U.S.C. §§ 1981, 2000e-2(a)(1); retaliatory termination, 42 U.S.C. § 2000e-3(a);

and hostile work environment, 42 U.S.C. § 2000e-2(a)(1). Keith also appeals the

decision of the district court to deny, in part, his motion to compel discovery. We

affirm the grant of summary judgment and hold that Keith is unable to appeal the

denial, in part, of his motion to compel discovery.

I. BACKGROUND

In 1994 Keith was hired by Joe Malugen, co-founder and CEO of MGA, to

work as a law clerk in the legal department pending Keith’s passage of the

Alabama bar. Keith failed the bar and was transferred to the real estate

department, where he worked until February 2000. During that time, Keith

received five separate pay raises.

Keith left the real estate department in February 2000 when the position of

legal assistant was created specially for him. This job was not posted. In May

2000, Keith was given another pay raise. In August 2002, Keith was transferred

back to the real estate department and given a promotion and an $8000 pay raise.

He remained in the real estate department until his termination in 2003.

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 On numerous occasions during Keith’s employment at MGA, Malugen

provided Keith with personal financial assistance. Malugen personally paid for

Keith’s wedding in Las Vegas, wedding reception in Dothan, Alabama, and

honeymoon. Malugen let Keith use Malugen’s Florida lake house on several

occasions. Malugen also loaned money to Keith more than once. He loaned Keith

$7500 to buy land in Headland, Alabama, and $27,000 to campaign for the

Alabama House of Representatives, but neither of these loans were repaid.

Malugen also donated $1000, at Keith’s request, to the church attended by Keith’s

mother.

On two occasions in late 2000, Keith received warnings after female

employees of MGA complained that he sent them sexually inappropriate e-mails.

On September 27, Keith received a verbal reprimand for sending one such e-mail.

Less than two weeks later Keith sent another. He then received a formal written

warning that stated, among other things, that future violations of this sort “could

result in immediate termination.”

On several occasions during his employment with MGA, Keith complained

of racial discrimination. In 1996 or 1997, he complained to Malugen about a

promotion another employee received and about the compensation of a black

female employee. In 1999, he complained to Malugen that white employees were

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being promoted to positions not posted within the company. In 2000, he again

complained about racial disparities. Around 2002, Keith spoke with Malugen

about the lack of black executives at MGA. And in July 2003, Keith wrote a letter

to Malugen complaining about racial disparities at MGA with regard to pay and

promotion.

This last complaint prompted MGA to launch an internal investigation. As

part of that investigation Keith provided Christa Forrester, in-house counsel for

MGA, with a list of employees he believed might support his charges of racial

discrimination. One of those employees, Nicole Wilkinson, stated she did not have

any concerns about racial discrimination at MGA, but went on to complain that

Keith had subjected her and other female employees to unwanted conduct of a

sexual nature. Wilkinson provided Forrester with the names of other female

employees she believed had been harassed by Keith. Forrester and Karla

McCormick, the human resources director for MGA, proceeded to investigate

Wilkinson’s claims, and spoke with three other female employees who complained

about unwanted sexual behavior by Keith.

After speaking with these employees, Forrester recommended that Malugen

fire Keith. MGA had previously terminated 22 employees after allegations of

sexual harassment. Malugen reviewed the written statements submitted by the

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female employees and the previous reprimands Keith had received for violating the

company e-mail policy. On November 5, 2003, Malugen fired Keith. Eight days

later, Keith filed a charge with the Equal Employment Opportunity Commission in

which he alleged that he had been terminated because of his race and in retaliation

for complaining about discrimination, and that he had been subjected to a hostile

work environment. That charge was dismissed on May 5, 2004.

On July 27, 2004, Keith filed a complaint in federal district court raising the

same allegations. Keith filed a motion to compel the production of e-mails from

eight MGA executives. The magistrate judge denied the motion in part but ordered

MGA to produce those e-mails that, like Keith’s, resulted in complaints from the

employees who received them. MGA later moved for summary judgment against

all of Keith’s claims. The district court granted the motion and concluded that

Keith had not made a prima facie showing on any of his claims.

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo. Breda v. Wolf Camera &

Video, 222 F.3d 886, 888 (11th Cir. 2000). We review the record and draw all

inferences from it in the light most favorable to the non-moving party. Id. A

denial of a motion to compel discovery is reviewed for abuse of discretion.

Sanderlin v. Seminole Tribe of Fla., 243 F.3d 1282, 1285 (11th Cir. 2001).

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 III. DISCUSSION

Keith makes two arguments on appeal. First, Keith argues that he

established a prima facie case of discriminatory termination, retaliatory

termination, and a hostile work environment. Second, Keith argues that the district

court erred when it denied, in part, his motion to compel discovery. Each issue is

addressed in turn.

A. Keith Failed to Present a Prima Facie Case of
Discrimination, Retaliation, or a Hostile Work
Environment.

Keith brings claims under both Title VII and 42 U.S.C. section 1981.

Because these claims “have the same requirements of proof and use the same

analytical framework,” we will “explicitly address the Title VII claim with the

understanding that the analysis applies to the § 1981 claim as well.” Standard v.

A.B.E.L. Services, Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). Keith presented

only circumstantial evidence in support of his complaint, and he asks that we

evaluate his evidence under the McDonnell Douglas burden-shifting test. See

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Under

this test, Keith had the initial burden of establishing a prima facie case for each of

his claims. Id. at 802; 93 S. Ct. at 1824.

Keith failed to establish a prima facie case of discriminatory termination. A

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prima facie case requires that a plaintiff present evidence that (1) he belongs to a

protected class; (2) he was subjected to an adverse employment action; (3) he was

qualified to do the job; and (4) his employer treated similarly situated employees

outside his classification more favorably. Wilson v. B/E Aerospace, Inc., 376 F.3d

1079, 1091 (11th Cir. 2004). The district court correctly concluded that this fourth

element required Keith to establish that similarly situated non-African American

employees were retained despite the fact that complaints alleging sexually

inappropriate behavior were made against them. See Maniccia v. Brown, 171 F.3d

1364, 1368 (11th Cir. 1999) (“[T]he quantity and quality of the comparator’s

misconduct [must] be nearly identical to prevent courts from second-guessing

employers’ reasonable decisions[.]”). Keith failed to produce any evidence of this

kind.

Keith also failed to establish a prima facie case of retaliatory termination. A

prima facie case requires that a plaintiff show “(1) he engaged in statutorily

protected activity; (2) he suffered an adverse employment action; and (3) there is

some causal connection between the two events.” Olmsted v. Taco Bell Corp., 141

F.3d 1457, 1460 (11th Cir. 1998). Keith presented no evidence in support of this

third requirement. He was fired four months after making the July 2003 complaint,

and in the absence of any other causal evidence, a four-month gap cannot, by itself,

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establish that Keith was fired because of the complaint. See Higdon v. Jackson,

393 F.3d 1211, 1220-21 (11th Cir. 2004); cf. Clark County School District v.

Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 1511 (2001). Keith complained of

discrimination on several other occasions, yet continued to receive promotions and

pay raises after those complaints. This evidence further militates against finding a

causal link between the July 2003 complaint and his termination.

Finally, Keith failed to establish a prima case of hostile work

environment. A prima facie case requires that a plaintiff present evidence that (1)

he belongs to a protected group; (2) he has been subject to unwelcome harassment;

(3) the harassment was based on a protected characteristic; (4) the harassment “was

sufficiently severe or pervasive [as] to alter the terms or conditions of employment

and create a discriminatorily abusive working environment;” and (5) the employer

is either directly or vicariously responsible for such environment. Miller v.

Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). Keith presented

no evidence of severe or pervasive harassment. Keith argues that all of the

executives of MGA are white, there is no formal plan or program for recruiting

minority employees, and MGA refused to produce the resumes of its management

and executives, but this argument fails. Keith received multiple promotions and

pay raises, had an unposted job created specially for him, and never alleged that he

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was subjected to racial slurs, physical threats, or other harassment that might

interfere with performance of his duties.

B. Keith Waived Any Argument About the Denial, in Part,
of His Motion to Compel Discovery.

Keith failed to preserve his remaining argument about discovery. Federal

Rule of Civil Procedure 72(a) states, “Within 10 days after being served with a

copy of [a] magistrate judge’s order, a party may serve and file objections to the

order; a party may not thereafter assign as error a defect in the magistrate judge’s

order[.]” After Magistrate Judge Walker denied, in part, Keith’s motion to compel

discovery, Keith failed to object within the allotted period. Keith waived his right

to complain that the magistrate judge abused her discretion. See Maynard v. Board

of Regents, 342 F.3d 1281, 1286 (11th Cir. 2003).

IV. CONCLUSION

The order of the district court granting summary judgment for MGA is

AFFIRMED.

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