[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 19, 2007
No. 06-15000 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-01092-CV-LSC-S
ALFRED ROBINSON,
Plaintiff-Appellant,
versus
LAFARGE NORTH AMERICA, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(June 19, 2007)
Before BLACK, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Alfred Robinson appeals the district court’s grant of summary judgment in
favor of LaFarge North America (“LaFarge”) in his employment discrimination
action, brought pursuant to the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e, and 42 U.S.C. § 1981.1 For the reasons that follow, we affirm.
I. Background
Robinson, a black male, worked for LaFarge and its predecessor. In 2001
and 2003, he filed grievances alleging discriminatory treatment; the allegations
were determined to be unfounded. In early 2004, he applied for a promotion to one
of three open leadman positions. He was the only black employee to apply for the
positions, but LaFarge filled the positions with three white employees. Robinson
filed a grievance in May 2004, which was denied. In June 2004, Robinson was
suspended after LaFarge investigated damage to his equipment and determined it
to be the result of intentional misconduct. He was then demoted and his pay was
reduced. In May 2005, Robinson filed the instant complaint, alleging that he was
discriminated against when LaFarge failed to promote him and when it disciplined
him, he suffered retaliation for the complaints he filed after the discrimination, and
he suffered a racially hostile environment. Robinson, however, continued to work
for LaFarge. In September 2005, while the complaint was pending, he overheard
another employee make a joke about a monkey, which he perceived to be racist.
1
Both Title VII and § 1981 have the same requirements of proof and present the same
analytical framework. Standard v. A.B.E.L. Services, 161 F.3d 1318, 1330 (11th Cir. 1998).
2
He filed a grievance, which was determined to be unfounded. In January 2006,
Robinson found some graffiti using the letters “KKK” in the restroom. He
considered the graffiti racist, but did not report it to LaFarge.
The district court granted summary judgment in favor of LaFarge.
Addressing the hostile environment claim, the court found that the alleged conduct
was not frequent, severe, or pervasive. With respect to the discrimination in
promotion, the court concluded that Robinson had established a prima facie case,
but that LaFarge had offered a legitimate non-discriminatory reason for its
decision, which Robinson could not show was pretextual. The court found that
Robinson had not shown that he was more qualified than the employees selected,
or that no reasonable person would have chosen the other candidates over him.
Addressing the discrimination in discipline, the court found that Robinson could
not establish a prima face case because he could not identify any employee whose
conduct was nearly identical and who was treated more favorably. With respect to
the retaliation claim, the court determined that there was no causal connection
between the grievance and the failure to promote because the four-month gap was
too long. As to the disciplinary action, the court found that Robinson could meet
the prima facie case, but that he could not show any pretext, as LaFarge acted
under a good faith belief that Robinson intentionally damaged the equipment.
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Robinson now appeals.
II. Discussion
We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the party opposing the motion. Skrtich
v. Thorton, 280 F.3d 1295, 1299 (11th Cir. 2002).
Because Robinson relies on circumstantial evidence, we analyze the claim
under the McDonnell Douglas framework, which requires the plaintiff to create an
inference of discrimination through his prima facie case. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Once
the plaintiff has made out the elements of the prima facie case, the burden shifts to
the employer to articulate a non-discriminatory basis for its employment action.
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089,
67 L.Ed.2d 207 (1981). If the employer meets this burden, the plaintiff must show
that the proffered reasons were pretextual. St. Mary’s Honor Center v. Hicks, 509
U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).
A. Failure to Promote2
2
With respect to the failure to promote, Robinson filed grievances in 2001 and 2003. He
was denied the promotion in 2004. The court concluded that there was no causal connection
between the grievances and the promotion decision. Robinson does not challenge the district court’s
findings on this issue, and, therefore, he has abandoned it. Rowe v. Schreiber, 139 F.3d 1381, 1382
n.1 (11th Cir. 1998).
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In order to establish a prima facie case on the basis of failure to promote,
Robinson must demonstrate that: (i) he belonged to a protected class; (ii) he was
qualified for and applied for a position; (iii) despite qualifications, he was rejected;
and (iv) the position was filled with an individual outside the protected class.
McDonnell Douglas Corp., 411 U.S. at 802; Vessels v. Atlanta Independent Sch.
Sys., 408 F.3d 763, 768 (11th Cir. 2005).
We agree with the district court that Robinson established a prima facie case.
LaFarge, however, presented legitimate, non-discriminatory reasons for its
decisions by showing that it promoted the other candidates because they had more
experience, had better leadership skills and experience, and performed better in the
interviews.
The burden then shifted to Robinson to show that these reasons were
pretextual by revealing “such weaknesses, implausibilities, inconsistencies,
incoherencies or contradictions in the employer’s proffered legitimate reasons for
its actions that a reasonable factfinder could find them unworthy of credence.”
Cooper v. Southern Co., 390 F.3d 695, 725 (11th Cir. 2004), cert. denied, 126 S.Ct.
478 (2005). A reason is not pretext for discrimination “unless it is shown both that
the reason was false, and that discrimination was the real reason.” Brooks v.
County Comm’n of Jefferson County, 446 F.3d 1160, 1163 (11th Cir. 2006)
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(quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125
L.Ed.2d 407 (1993)). In the context of a promotion:
a plaintiff cannot prove pretext by simply arguing or even by showing
that he was better qualified than the officer who received the position
he coveted. A plaintiff must show not merely that the defendant’s
employment decisions were mistaken but that they were in fact
motivated by race.
Id. (citing Alexander v. Fulton County, 207 F.3d 1303, 1339 (11th Cir. 2000)).
Additionally, a plaintiff must show that the disparities between the successful
applicant’s and his own qualifications were “of such weight and significance that
no reasonable person, in the exercise of impartial judgment, could have chosen the
candidate selected over the plaintiff.” Cooper, 390 F.3d at 732 (citation omitted);
see also Ash v. Tyson Foods, Inc., 546 U.S. 454, 126 S.Ct. 1195, 1197, 163
L.Ed.2d 1053 (2006) (approving of this language from Cooper).
The only evidence Robinson put forth was his own testimony that he was
more qualified. Robinson, however, stated in his deposition that he was unable to
perform all tasks in the quarry, which LaFarge considered an important quality in
the leadman position. Thus, Robinson did not meet his burden.
B. Discriminatory Demotion
For Robinson to establish racial discrimination in the application of
discipline, he must show that “he engaged in misconduct similar to that of a person
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outside the protected class, and that the disciplinary measures enforced against him
were more severe than those enforced against the other persons who engaged in
similar misconduct.” Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989). A
plaintiff is similarly situated to another employee only if “the quantity and quality
of the comparator’s misconduct [are] nearly identical.” Burke-Fowler v. Orange
County, Fla., 447 F.3d 1319, 1323 (11th Cir. 2006) (citing Maniccia v. Brown, 171
F.3d 1364, 1368 (11th Cir. 1999)) (internal quotations omitted).
We conclude that Robinson was not similarly situated with the other
identified employees, as the other employees were not engaged in nearly identical
conduct. Moreover, LaFarge acted under the good faith belief that Robinson’s
misconduct had been intentional, whereas the other employees’s actions had been
accidental. See Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.
1991) (explaining that “if the employer fired an employee because it honestly
believed that the employee had violated a company policy, even if it was mistaken
in such belief, the discharge is not ‘because of race’”). Accordingly, Robinson has
not met his burden.
C. Retaliatory Demotion
To establish a prima facie case of retaliation, a plaintiff must prove that
(1) he participated in a protected activity; (2) he suffered a materially adverse
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employment action; and (3) there was a causal connection between the
participation in the protected activity and the adverse employment decision.
Burlington N. & Santa Fe Ry. Co. v. White, 126 S.Ct. 2405 (2006). Although
temporal proximity between the protected activity and the adverse employment
action may be sufficient to create an inference of causation, “gaps of time, standing
alone, do not preclude a plaintiff from producing enough evidence for a reasonable
jury to conclude that protected speech was a substantial factor in the [adverse
employment decision].” See Stanley v. City of Dalton, Ga., 219 F.3d 1280, 1291
(11th Cir. 2000).
With respect to the demotion, we first note that, contrary to LaFarge’s
claims, Robinson sufficiently raised the issue in his complaint by alleging that he
had been wrongfully demoted and suffered adverse employment actions in
retaliation for his grievances. Moreover, Robinson established a prima facie case,
as the demotion occurred only about two months after he filed a grievance.
Stanley, 219 F.3d at 1291. Nevertheless, Robinson cannot show that LaFarge’s
reasons for demoting him were a pretext for discrimination. LaFarge conducted an
investigation after Robinson’s equipment was damaged during his shift and learned
from witnesses that it appeared Robinson acted deliberately and caused the
damage. Based on this information, LaFarge demoted Robinson. Robinson has
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offered no evidence to establish that this reason was a pretext for discrimination.
See Elrod, 939 F.3d at 1470.
D. Hostile Environment
To establish a hostile work environment claim, Robinson must show: (1) he
belongs to a protected group; (2) he has been subject to unwelcome harassment;
(3) the harassment has been based on a protected characteristic, such as race;
(4) the harassment is sufficiently severe or pervasive to alter the terms and
conditions of employment and create a discriminatorily abusive work environment;
and (5) the employer is responsible for such environment under a theory of
vicarious liability or a theory of direct liability. Miller v. Kenworth of Dothan,
Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). The requirement that the harassment
be severe or pervasive contains an objective and subjective component. Id. at
1276. “Thus, to be actionable, this behavior must result in both an environment
that a reasonable person would find hostile or abusive and an environment that the
victim subjectively perceives to be abusive.” Id. (internal quotations omitted).
In evaluating the objective severity of the harassment, we consider (1) the
frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct
is physically threatening or humiliating, or a mere offensive utterance; and
(4) whether the conduct unreasonable interferes with the employee’s job
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performance. Miller, 277 F.3d at 1276. “Although we examine the statements and
conduct complained of collectively to determine whether they were sufficiently
pervasive or severe to constitute [racial] harassment, the statements and conduct
must be of a [racial] nature . . . before they are considered in determining whether
the severe or pervasive requirement is met.” Gupta v. Florida Board of Regents
212 F.3d 571, 583 (11th Cir. 2000). “Innocuous statements or conduct, or boorish
ones that do not relate to the [race] of the actor or of the offended party (the
plaintiff), are not counted.” Id. Additionally, teasing, offhand comments, and
isolated incidents (unless extreme) will not amount to discriminatory changes in
the terms and conditions of employment. Mendoza v. Borders, Inc., 195 F.3d
1238, 1245 (11th Cir. 1999) (en banc).
Here, Robinson focused on two incidents directed at him – the monkey joke
and the graffiti on the bathroom wall. Importantly, these two incidents occurred
after Robinson filed his complaint, and therefore, would not form the basis of a
hostile environment claim. He also identified other statements, which were not
made in his presence, were not directed at him, and which occurred several years
earlier. These incidents also do not form the basis of a harassment case, as they are
inadmissible double hearsay, which we do not consider as probative evidence.
Zaben v. Air Products & Chemicals, Inc., 129 F.3d 1453, 1455-57 (11th Cir.
10
1997).
Finally, despite Robinson’s assertion that the court should consider the
failure to promote and the demotion as evidence of a hostile environment, those
claims fail. As discussed above, Robinson could not show that either decision was
motivated by race.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court.
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