USCA11 Case: 20-13142 Date Filed: 04/21/2021 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-13142
Non-Argument Calendar
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D.C. Docket No. 1:17-cv-05084-ELR
JIMMIE LEE SUBER,
Plaintiff - Appellant,
versus
LOWES HOME CENTERS,
Defendant - Appellee,
RANDI GORDON, et al.,
Defendants.
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Appeals from the United States District Court
for the Northern District of Georgia
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(April 21, 2021)
Before JILL PRYOR, NEWSOM, and LUCK, Circuit Judges.
PER CURIAM:
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Jimmie Suber, proceeding pro se, appeals the district court’s grant of
summary judgment in favor of his former employer, Lowe’s, on his amended
complaint alleging retaliation in violation of Title VII. After careful review, we
affirm the district court’s ruling.
I
The facts as alleged by Suber—which we accept as true for purposes of our
review—are known to the parties, so we will repeat them here only to the extent
necessary to resolve the issues presented. Suber worked at a Lowe’s Home
Improvement in Georgia. On August 3, 2017, after shopping at that Lowe’s as a
customer, Suber began to exit the store. On his way out, Suber encountered
another customer who threatened to kill both him and everyone in the store. On
several occasions afterwards, Suber reported the incident to Lowe’s—both in
conversation and through emails. In one email sent to human resources manager
Randi Gordon and store manager Scott Campbell, dated August 11, 2017, Suber
critiqued the response of Lowe’s to the August 3, 2017 incident. Suber alleges that
Lowe’s later terminated him in retaliation for “his opposition to Lowe’s” and for
emails that he wrote to the corporate office at Lowe’s.
Suber’s amended complaint alleges a claim for retaliation under Title VII.
Lowe’s moved for summary judgment, and the magistrate judge entered a report
and recommendation that the motion be granted. Over Suber’s objections, the
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district court adopted the magistrate judge’s recommendation, holding that: (1)
Suber’s emails to Lowe’s did not constitute protected activity; (2) Suber had not
presented sufficient evidence to demonstrate that the nonretaliatory reason that
Lowe’s offered was pretext for retaliation; and (3) the magistrate judge
appropriately applied the burden-shifting framework of McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). Suber now appeals.1
II
A plaintiff establishes a prima facie case of retaliation under Title VII by
showing that: (1) he engaged in statutorily protected activity, (2) he suffered a
materially adverse action, and (3) a causal connection exists between the protected
activity and the adverse action. Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d
1249, 1258 (11th Cir. 2012). If the plaintiff establishes a prima facie case, the
burden shifts to the employer to provide a legitimate, non-discriminatory reason
for its action. McDonnell Douglas, 411 U.S. at 802.
Suber’s appeal turns on the first element necessary to make out a prima facie
case of retaliation—whether he engaged in statutorily protected activity.
When Suber initially brought this lawsuit, he alleged multiple types of
statutorily protected activity: (1) previous EEOC complaints, (2) previous lawsuits
1
We review a district court’s grant of summary judgment de novo. Greenberg v. BellSouth
Telecomm. Inc., 498 F.3d 1258, 1263 (11th Cir. 2007).
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against Lowe’s, and (3) August 2017 emails. On appeal, however, Suber insists
that he is relying on only one source of statutorily protected activity—the August
11, 2017 email that he sent to Gordon and Campbell.
In Coutu v. Martin County Board of County Commissioners, we held that an
employee’s internal grievance does “not constitute statutorily protected activity”
because “[u]nfair treatment, absent discrimination based on race, sex, or national
origin, is not an unlawful employment practice under Title VII.” 47 F.3d 1068,
1074 (11th Cir. 1995). Here, similarly, Suber’s August 11, 2017 email makes only
generic allegations concerning his unfair treatment as well as the shortcomings of
Lowe’s response to the August 3, 2017 incident. At no point does the email allege
discrimination on the basis of a protected characteristic, as Suber concedes.
Accordingly, Suber has not shown that he engaged in statutorily protected
activity.2
* * *
For the foregoing reasons, we hold that the district court didn’t err in
concluding that Suber failed to establish a prima facie case for discrimination.
AFFIRMED.
2
For that reason, we don’t address Suber’s argument that a causal connection existed between
the protected activity and the adverse action, or that the reason that Lowe’s offered for his
termination was pretextual. See McCann v. Tillman, 526 F.3d 1370, 1375 n.6 (11th Cir. 2008).
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