[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 11, 2008
No. 07-11477 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-01282-CV-2-IPJ
JOHN PHILLIPS,
Plaintiff-Appellant,
versus
AARON RENTS, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(January 11, 2008)
Before BIRCH, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
John Phillips appeals the district court’s grant of summary judgment in favor
of Aaron Rents, Inc. (“Aaron”) in his employment discrimination suit, filed
pursuant to Title VII of the Civil Rights Act of 1964, (“Title VII”), 42 U.S.C.
§§ 2000e-2(a), 2000e-3(a), 42 U.S.C. § 1981, and the Age Discrimination in
Employment Act (“ADEA”), 29 U.S.C. § 623(a)(1). On appeal, Phillips argues
that the district court erred in finding that he did not present a prima facie case of
race, gender, or age discrimination or retaliation. He also argues that the district
court erred in finding that, even if he had established a prima facie case of
discrimination or retaliation, he failed to establish that the reasons Aaron offered
for his termination were pretextual. We AFFIRM.
I. BACKGROUND
A. Phillips’s Employment and Termination
Aaron manufactures, sells, and rents furniture, appliances, and electronics.
Phillips, a white male, over forty years old, had been employed by Aaron on two
separate occasions: from September 1995 to March 1998 (when he resigned to take
another job), and from January 1999 until he was discharged in May 2005. During
his second period of employment, Phillips was initially hired as a sales associate,
but was transferred the position of store credit manager. The store was staffed by
four employees. Other employees who worked in the store with Phillips during the
course of his employment included store manager Jon Trammell (a 38-year-old
2
white male), assistant manager Sherry Poole (a 39-year-old African-American
woman), outside sales representative Dion Fox (a woman), and various other sales
associates. The regional manager during the relevant period was Ron Benedit.
Benedit reported to regional vice-president, Phil Karl. Trammell, Benedit, and
Karl, are the undisputed decision-makers as to Phillips’s employment.
Aaron decided to eliminate the store credit manager position company-wide
in early 2004 because regional credit managers could perform the same
responsibilities more efficiently. Accordingly, although the company had allowed
existing store credit managers to keep their jobs and job titles, they would not be
replaced when their employment ended. After Aaron terminated Phillips, his store
did not hire a new store credit manager.
During his first period of employment, Phillips was written up once for
tardiness. After returning to work at Aaron, Phillips’s job responsibilities as a
sales associate included assisting customers with rental applications and approval
procedures, ensuring and maintaining showroom cleanliness, and creating
computer quotations, sales invoices, and rental agreements. He was also
responsible for greeting and assisting customers in the showroom. After he was
transferred to the credit manager position, he was responsible for verifying the
information contained in rental applications, for approving or declining those
3
applications based on his findings, for generally assisting customers in the store,
and, occasionally, for opening the store. He had a set schedule corresponding to
store hours.
According to Benedit, Poole, as assistant manager, was required to work a
certain number of hours each week, but did not have a set schedule. She was not
required to be at the store at 9:00 A.M. each day because her job responsibilities
often required her to work late, after the store had closed, or to stop by the
warehouse before coming to the store. As outside sales representative, Fox was
required to travel to clients’ places of business. Accordingly, she frequently
worked outside of the store, and was thus not required to be physically present
there during set hours.
Phillips asserts that upon three occasions during his employment with
Aaron, Poole made racially inappropriate remarks in the workplace. He asserts
that once, when Phillips and Trammel were talking with Poole she said, “[y]ou
white boys can run the store. I’ll just sit my black ass down.”1 R2-33, Exh. 14 at
13 (169). On another occasion, Phillips claims that Poole said, “this business
about approving somebody’s application based on race is going to stop right now.”
Id. (170). Finally, Phillips asserts that once when Poole learned where Phillips was
1
Poole and Trammell denied that Poole made this statement. R2-33, Exh. 16 at 8 (28);
Exh. 15 at 16 (59-60).
4
going on vacation, she sarcastically inquired as to whether “any black people went
there.” Id. (172).
Phillips testified that, as early as 2004, he complained to Karl, over the
phone, about how he found it impossible to work with Poole, but that he did not
mention any racial problems. In January 2004, Phillips complained to Benedit
over the phone that Poole’s racial remarks made him uncomfortable. Phillips
complained to Trammell about Poole when she made one of the comments noted
above, because Trammell had been present at that time. In March or April 2005,
Phillips also complained about Poole to Pete Sarris, who was responsible for
providing anti-discrimination training to Aaron employees. Sarris testified that, in
the course of his job, he would forward complaints of this nature to the appropriate
persons or immediate supervisors to handle.
In April 2005, Karl made a scheduled visit to the store where Phillips
worked. He observed that Phillips – wearing a wrinkled and untucked shirt and
tattered pants – was in violation of Aaron’s dress code. Phillips received verbal
counseling as to proper attire. On 7 May 2005, Devin Hartman, an assistant
manager at another store, made an unannounced visit to Phillips’s store posing as a
customer. Hartman later reported his visit to Benedit by email. He reported that
he had arrived at the store at 9:00 A.M. to find it locked with no employee present.
5
Phillips had arrived at 9:30, and provided no explanation or apology for his
lateness. Phillips told Hartman, “I have good intentions of being here at 9:00, but
you know how that goes.” R2-29, Exh. 4 at 1. Once inside the store, Phillips did
not assist Hartman, but sat with his feet up on his desk, reading the newspaper.
Phillips told Hartman to interrupt him if he needed assistance with anything.
Phillips asserts that Poole was supposed to be working with him on Saturday, 7
May, but that she did not arrive until 45 minutes after he did.
Benedit discussed Hartman’s email with Trammell, and Trammell
recommended that Phillips be terminated. As he reported to Benedit at that time,
Trammell had spoken with Phillips several times prior to 7 May about being late to
work. From January 2004 through May 2005, Phillips had been late to work over
65 times. Once Karl had approved the action, Benedit and Trammell decided to
proceed with Phillips’s termination. At the time of his termination, Trammell told
Phillips that he was being terminated for opening the store late, and for his
unprofessional behavior towards Hartmann. Phillips asserts that Poole was not
disciplined for her tardiness on that day.
After Phillips’s termination, John Yonkman, a thirty-four-year-old white
male was hired as an assistant manager. Although Aaron did not hire a
replacement for Phillips, Yonkman’s job responsibilities included many of those
6
which had been performed by Phillips. The remainder of Phillips’s duties are
performed by regional credit manager, Tom Whitby.
B. Evidence Produced in the Course of Litigation
After his termination, Phillips filed a complaint against Aaron, alleging
discrimination on the basis of his race, sex, and age, and retaliation for reporting
racial misconduct, all in violation of Title VII, 42 U.S.C. § 1981, and the ADEA.
Aaron moved for summary judgment as to all of Phillips’s claims. In support of its
motion, in addition to several sworn declarations and depositions, Aaron also
submitted a memo, sent to employees, which affirmed that company policy
prohibited discrimination based on race, sex, and age, among other factors, and
instructed employees to call a toll-free phone number if they thought they were
subject to discrimination. Phillips acknowledged receipt of that memo. Aaron also
submitted its policy manual, which stated that employees could be disciplined or
terminated for excessive tardiness, failure to notify a supervisor of tardiness,
violation of the discrimination policy, or improper conduct towards customers,
visitors, or other employees. Finally, the Aaron dress code policy stated male
employees had to wear either an Aaron’s logo collared shirt, or a shirt and tie.
Aaron also pointed to Phillips’s deposition testimony that he had reviewed
Aaron’s policy manual and he knew Aaron’s dress code. Phillips acknowledged
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that he violated the dress code once when Karl visited the store and that Trammell
had subsequently spoken to him about his attire.
With respect to the May 7 incident, Phillips admitted that he did not arrive at
the store until 9:30 A.M. because he had to jump start his car, but he said he did
not recall the events that occurred immediately after he arrived at the store.
Phillips testified that Poole did not arrive at the store that day until 10:15 A.M.,
and that she only occasionally worked on Saturdays. Phillips recalled that
Trammell showed him a copy of Hartman’s e-mail to Benedit, and told him that he
was being terminated because he was late opening the store on May 7 and was
unprofessional towards a customer. He admitted that no Aaron representative ever
told him his termination was due to his race, gender, age, or complaints regarding
Poole, and that he had no reason to believe the decision-makers were biased
against him due to his race, gender, or age. Finally, in its response to Phillips’s
claim for unemployment compensation, Aaron had explained that it fired Phillips
because he did not open the store on time and did not notify anyone that he was
running late.
In opposition to summary judgment, Phillips also submitted evidence.
Aaron’s response to Phillips’s Equal Employment Opportunity Commission
(“EEOC”) claim indicates that Aaron terminated Phillips for “excessive tardiness,
8
poor performance (opening the store late and failing to serve customers) and for
violating the Company’s dress code.” R2-33, Exh. 3 at 8. According to Aaron’s
internal personnel action form, it terminated Phillips because he opened the store
30 minutes late without notifying the manager and violated the dress code. In
response to interrogatories, Aaron stated that it terminated Phillips because of his
“excessive and recurring tardiness, his violations of [Aaron’s] dress code policy,
and his opening of the store thirty minutes after the scheduled time to open on . . .
May 7.” R2-33, Exh. 11 at 5. In addition, Phillips submitted a handwritten
document that listed seven occasions in 2004 and 2005 upon which Trammell
spoke with Phillips about his “excessive” tardiness. R2-33, Exh. 10.
Phillips also presented the deposition of Trammell, who, when asked who
had replaced Phillips at the store, answered that 34-year-old Yonkman had been
hired as an assistant manager. Yonkman’s duties included assisting the manager
and waiting on customers, and he occasionally helped collect delinquent accounts
as well. Trammell also testified that Phillips received annual written job
evaluations that he would keep in a personnel file at the store and send to the
regional office. Although Trammell stated that he gave Phillips a low rating for
tardiness on those evaluations, Trammell and Aaron could not produce the
evaluations.
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The district court found that Phillips failed to present a prima facie case of
race discrimination because he failed to show that he was similarly situated to
Poole.2 The court acknowledged evidence showing that Poole made racial
comments, but it found that these could not support Phillips’s claim of race
discrimination because Poole was not one of the decision-makers responsible for
terminating him. The court found that Phillips’s gender discrimination claim also
failed because neither Poole, Fox, nor any other female employee was tardy the
number of times Phillips was, or displayed the work deficiencies noted by Aaron
and, therefore, none was a valid comparator.
Next, the court concluded that Phillips’s age discrimination claim failed,
because he could not show that he had been replaced by a substantially younger
individual. Specifically, the court reasoned that Phillips’s position had been
eliminated by a change in company policy, and although both Yonkman – a 34-
year-old – and another individual assumed some of Phillips’s former duties,
Phillips had “failed to establish that a substantially younger person filled the
position from which he was terminated.” R1-40 at 10.
2
Although the district court never specifically mentioned Phillips’s race discrimination
claim under § 1981, it implicitly rejected it on this basis as well because the analysis for a § 1981
claim is the same as for Title VII race discrimination claims, Crawford v. Western Elec. Co., 745
F.2d 1373, 1376 (11th Cir. 1984), and it granted summary judgment as to “all” of Phillips’s
claims. R1-41.
10
Finally, the district court found that, although Phillips had engaged in
protected conduct when he complained about Poole’s comments to Sarris, there
was no evidence that the decision-makers were aware of his complaints to Sarris
when they decided to terminate Phillips. The court further found that, even if
Phillips had presented a prima facie case of race, gender, or age discrimination, or
retaliation, Aaron had presented several legitimate reasons for terminating Phillips,
and Phillips had failed to show that these reasons were pretextual. Accordingly,
the court granted summary judgment in favor of Aaron. Phillips now appeals.
II. DISCUSSION
We review a district court’s grant of summary judgment de novo, viewing
all the evidence and making reasonable inferences in the light most favorable to the
non-moving party. Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir.
2002). Summary judgment is appropriate when the evidence so viewed presents
no genuine issue of fact and compels judgment as a matter of law. Fed. R. Civ.
Proc. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S. Ct. 2548, 2552
(1986).
A. Substantive Discrimination Claims
Title VII prohibits employers from discriminating against any individual
with respect to the terms of employment on the basis of race or sex. 42 U.S.C.
11
§ 2000e-2(a)(1). Section 1981 also prohibits discrimination in the making and
enforcing of contracts based on a person’s race. 42 U.S.C. § 1981(a). The ADEA
prohibits an employer from discriminating on the basis of age. 29 U.S.C. § 623(a).
The same analysis applies to claims for employment discrimination brought under
Title VII as to those brought under § 1981. Turnes v. AmSouth Bank, NA, 36 F.3d
1057, 1060 (11th Cir. 1994). That analysis also applies to age discrimination
claims brought under the ADEA. See Pennington v. City of Huntsville, 261 F.3d
1262, 1269 (11th Cir. 2001).
A plaintiff may establish a claim of race, sex, or age discrimination by direct
or circumstantial evidence. For claims based only upon circumstantial evidence,
we use the three-step burden shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 1824-25 (1973).
See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004) (Title
VII); Crawford v. Western Electric Co., 745 F.2d 1373, 1376 (11th Cir. 1984) (§
1981); Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc).
Under this framework, the plaintiff first has the burden of establishing a prima
facie case of discrimination, which “creates a rebuttable presumption that the
employer acted illegally.” Wilson, 376 F.3d at 1087.
12
After a claimant establishes a prima facie case of discrimination, the
employer may articulate one or more legitimate, nondiscriminatory reasons for the
challenged employment action. Chapman, 229 F.3d at 1024. If an employer
articulates one or more legitimate reasons, then the plaintiff must produce evidence
sufficient to allow a reasonable fact finder to conclude that the employer’s reasons
were pretextual, in order to avoid summary judgment for the employer. Id. If an
employer articulates multiple legitimate reasons for the adverse action, the plaintiff
must present sufficient evidence that all of those reasons are pretextual. Id. at
1037.
1. Race and Sex Discrimination
A plaintiff can establish a prima facie case of race or sex discrimination by
showing that: (1) he was a member of a protected class; (2) he was qualified to do
the job; (3) he was subjected to an adverse employment action by his employer;
and (4) similarly situated employees outside of the protected class were treated
more favorably. Wilson, 376 F.3d at 1091. The employees outside of a plaintiff's
protected class who are identified as comparators “must be similarly situated ‘in all
relevant respects.’” Id. (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.
1992) (per curiam) (appending district court order)). “We require that the quantity
and quality of the comparator’s misconduct be nearly identical to prevent courts
13
from second-guessing employers’ reasonable decisions.” Maniccia v. Brown, 171
F.3d 1364, 1368 (11th Cir. 1999).
Phillips complains that Aaron treated Poole, a black woman, and Fox, a
woman, more favorably than himself. However, our review of the record satisfies
us that Poole was not sufficiently similarly situated to be a valid comparator for
Phillips. She held a different position with job responsibilities requiring her to be
out of the store. This meant that she was not on a set schedule of hours. Further,
there is no evidence that she engaged in misconduct “nearly identical” to Phillips’s
relevant conduct. There is no record that she was excessively tardy, that she
violated the dress code, that she was ever responsible for or late in opening the
store, or that she mistreated a potential customer.
Similarly, Fox, as an outside sales representative, had job responsibilities
which took her out of the store and thus she was not required to be present during
set hours. There is no evidence that she ever failed to comply with the dress code
or that she acted inappropriately towards customers. Accordingly, we agree with
the district court that neither Poole nor Fox is an appropriate comparator for
purposes of Phillips’s race and sex discrimination claims. Therefore, Phillips
failed to present a prima facie case of race or sex discrimination.
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2. Age Discrimination Claim
When an employee has been replaced, the elements of a prima facie case for
age discrimination may be expressed slightly differently: a plaintiff must show
that: (1) he was a member of the protected group of persons between the ages of
forty and seventy; (2) he was subject to adverse employment action; (3) he was
qualified for the job; and (4) a substantially younger person filled the position from
which he was terminated (the “replacement element”).3 Damon v. Fleming
Supermarkets of Fla., Inc., 196 F.3d 1354, 1359 (11th Cir. 1999). In determining
whether or not an employee has been replaced, we consider the employee’s
position and responsibilities, and whether those features of the job were clearly
defined. Hawkins v. Ceco Corp., 883 F.2d 977, 982 (11th Cir. 1989) (evaluating
the replacement element in the context of a race discrimination claim).
In Rollins v. TechSouth, Inc., 833 F.2d 1525, 1529 (11th Cir. 1987), the
plaintiff presented evidence that the employer (1) hired a younger employee, (2)
had the plaintiff train that younger employee, (3) fired the plaintiff, (4) assigned
most of the plaintiff’s duties to the younger employee, who also performed other
3
Even though the suggested comparator here, Yonkman, was fewer than 10 years younger
than Phillips, we have held that as few as three years difference in age can satisfy the
“substantially younger” requirement. See Carter v. DecisionOne Corp., 122 F.3d 997, 1003-04
(11th Cir.1997) (holding that plaintiff aged 42, who was replaced by employee aged 39, met the
“substantially younger” replacement requirement under ADEA); see also Damon, 196 F.3d at
1360.
15
duties, and (5) assigned some of the plaintiff’s duties to various other employees.
We held that those facts satisfied the replacement element of the prima facie case
of age discrimination, even though the employer argued that it had terminated the
plaintiff’s old position. Id. Similarly, in Hawkins, the plaintiff worked as an
unskilled laborer, and after he was fired, two other employees performed his duties
for a few weeks. Hawkins, 883 F.2d at 983-84. Despite the fact that new unskilled
laborers hired by the employer did not assume the former employee’s specific
responsibilities, but instead filled a general need in the workforce, we found that
the laborer hired immediately after the plaintiff was his replacement. Id. (defeating
the plaintiff’s prima facie case, because the replacement was also a member of the
protected class).4
The record indicates that Aaron eliminated Phillips’s position, credit
manager, according to its pre-existing plan, and the credit manager’s duties relating
to customer credit accounts shifted primarily to the regional credit manager.
Although Yonkman did not assume Phillips’s job title, he was hired after Phillips
4
As discussed in the context of race and sex discrimination, a prima facie case of
discriminatory discharge based on age may also be established if the plaintiff shows that “the
misconduct for which [he] was discharged was nearly identical to that engaged in by [an
employee outside the protected class] whom [the employer] retained,” Nix v. WLCY
Radio/Rahall Commc’ns, 738 F.2d 1181, 1185 (11th Cir. 1984) (quoting Davin v. Delta Air
Lines, Inc., 678 F.2d 567, 570 (5th Cir. Unit B 1982)) (discussing various formulations).
However, we have already rejected Phillips’s suggestion that Poole is a proper comparator for
the purpose of any of his discrimination claims.
16
was terminated, which served to maintain the same number of employees at the
store. Phillips did not train Yonkman, and the record is unclear as to the level of
skill his position required. However, the specific facts regarding Phillips’s
termination and Yonkman’s assumption of at least some of his duties arguably
bring this case in line with Rollins and Hawkins. Based on these facts, a
reasonable fact finder might find that Yonkman replaced Phillips, and thus that
Phillips presented a prima facie case of age discrimination.
However, because Aaron has offered multiple, legitimate, non-
discriminatory reasons for Phillips’s termination, even if Phillips did meet his
threshold burden, he must produce evidence sufficient to allow a reasonable fact
finder to conclude that the employer’s reasons were pretextual, in order to avoid
summary judgment. See Chapman, 229 F.3d at 1024. A plaintiff’s evidence of
pretext “must reveal such weaknesses, implausibilities, inconsistencies,
incoherencies or contradictions in the employer’s proferred legitimate reasons for
its actions that a reasonable factfinder could find them unworthy of credence.”
Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 771 (11th Cir. 2005) (per
curiam) (quotation omitted). “Provided that the proferred reason is one that might
motivate a reasonable employer, an employee must meet that reason head on and
rebut it.” Chapman, 229 F.3d at 1030. Moreover, a mere “scintilla” of evidence in
17
favor of the non-moving party, or evidence that is merely colorable or not
significantly probative is not enough. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252, 106 S. Ct. 2505, 2512 (1986).
Evidence that an employer had additional reasons for terminating an
employee, even if those reasons were undisclosed, does not prove pretext. See
Tidwell v. Carter Prods., 135 F.3d 1422, 1428 (11th Cir. 1998). If an employer
offers different reasons for terminating an employee, those reasons must be
fundamentally inconsistent in order to constitute evidence of pretext. See Zaben v.
Air Prods. & Chems., Inc., 129 F.3d 1453, 1458-59 (11th Cir. 1997) (per curiam).
Finally, we draw an adverse inference “from a party’s failure to preserve evidence,
[but] only when the absence of that evidence is predicated on bad faith.” Bashir v.
Amtrak, 119 F.3d 929, 931 (11th Cir. 1997) (per curiam).
First, Phillips failed to offer any evidence that Aaron’s true reason for
terminating him was based on his age. Phillips admitted that he was never told that
he was terminated due to his age, and he offered no basis for a belief that the Aaron
decision-makers were biased against him due to his age. Although the reasons
Aaron cited for terminating Phillips varied slightly by occasion, that alone does not
establish pretext. See Tidwell, 135 F.3d at 1428. None of the reasons offered are
fundamentally inconsistent with one another and Aaron never explicitly denied any
18
of these reasons. See Zaben, 129 F.3d at 1458-59. Also, Aaron’s failure to
produce Phillips’s annual job evaluations does not give rise to an inference of
pretext, because there is no evidence of bad faith. See Bashir, 119 F.3d at 931.
The failure is, at best, a scintilla of evidence, and it only concerns one of the
reasons Aaron gave for terminating Phillips. Thus, we conclude that Phillips did
not rebut, head on, all the reasons given by Aaron for his termination. See
Chapman, 229 F.3d at 1030. Accordingly, we find that Phillips failed to present
sufficient evidence of pretext, and that his claim for age discrimination must fail.
B. Retaliation Claim
Finally, Title VII additionally prohibits an employer from retaliating against
an employee for engaging in protected conduct. See 42 U.S.C. § 2000e-3(a).
Retaliation claims are also analyzed under the McDonnell-Douglas burden-shifting
framework. See Holifield, 115 F.3d at 1566. Just as in a case of substantive
discrimination, if a plaintiff establishes a prima facie case, and the employer has
proffered one or more legitimate, non-discriminatory reasons for the adverse
employment action, “the plaintiff must then demonstrate that the employer’s
proffered explanation is a pretext for retaliation.” Id.
We have already found that Phillips failed to raise a genuine issue of
material fact as to whether the reasons given by Aaron for his termination were
19
pretextual. Accordingly, even if he did meet his threshold burden as to retaliation,
Phillips’s claim for retaliation must fail.
III. CONCLUSION
Phillips appeals the district court’s grant of summary judgment in favor of
Aaron as to his employment discrimination claims. Upon de novo review, we find
that Phillips failed to present a prima facie case of race or gender discrimination.
We further find that he failed to demonstrate that the reasons Aaron gave for his
termination were pretextual, and thus that his claims of age discrimination and
retaliation must fail. Accordingly, we AFFIRM the district court’s grant of
summary judgment.
20