[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-15633 OCT 6, 2011
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 5:09-cv-00085-CAR
EVERETT HENDERSON,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
FEDEX EXPRESS,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(October 6, 2011)
Before HULL, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Everett Henderson appeals the district court’s order granting summary
judgment in favor of his former employer, Federal Express Corporation, in his
employment discrimination action brought under Title VII of the Civil Rights Act
of 1964, 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a), and the Americans with
Disabilities Act, 42 U.S.C. § 12112. On appeal, Henderson argues that the district
court improperly relied upon inadmissible hearsay evidence in ruling on FedEx’s
motion for summary judgment. He also contends that the district court misapplied
the legal standard for Title VII retaliation claims. For the reasons set forth below,
we affirm.
I.
In June 2007, Henderson filed a two-count complaint against FedEx. In
Count One, Henderson asserted that FedEx had failed to provide him with a
reasonable accommodation for a medical condition, as required by the Americans
with Disabilities Act. In Count Two, Henderson contended that he had been
discriminated against on account of his race and had been subjected to a retaliatory
discharge, in violation of Title VII. Only Henderson’s Title VII retaliation claim
is at issue in this appeal.
FedEx moved for summary judgment with respect to all of Henderson’s
claims. The company argued that Henderson had failed to establish a prima facie
case of retaliation because he had not proved that there was a causal connection
between his protected activity and his termination. FedEx also asserted that it had
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a legitimate, non-discriminatory reason for terminating Henderson’s employment,
namely, that Henderson had falsified his time card.
FedEx submitted Henderson’s deposition in support of its summary
judgment motion. In his deposition testimony, Henderson explained that he filed a
series of complaints and grievances during his employment with FedEx. On
March 21, 2005, he filed an internal grievance asserting that his supervisor, Bryan
Evans, had participated in crude sexual conversations with other employees.
Later, on September 14, 2005, Henderson was interviewed by a human resources
representative regarding a complaint filed by another employee. During that
interview, Henderson described an incident where Evans had lied about another
employee being licensed to transport hazardous materials, and also expressed
concerns “about management inconsistencies and practices.”
FedEx also submitted the transcript of Evans’s deposition. Evans explained
that Henderson had been terminated for falsifying his time card. FedEx’s
Acceptable Conduct Policy made the deliberate falsification of company
documents a terminable offense. In September 2005, the company received a
report that two employees at its facility in Macon, Georgia, were falsifying time
cards. Management responded by installing a surveillance camera near the time
clock. On September 22, Evans observed Henderson walk into the building and
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join an exercise routine that was already in progress without taking off his
backpack. Evans believed that Henderson may have been late for work, so he
audited Henderson’s time card later that afternoon. Henderson had listed a
clock-in time of 7:14 a.m., on his time card, but he did not appear on the
surveillance videotape until around 3:00 p.m., when he punched out for the day.
The videotape showed another employee, Greg Barnes, clocking in at 6:40 or 6:42
a.m., and then clocking in a second time at 7:14 a.m. in a very suspicious manner.
Evans concluded that Barnes had clocked in for Henderson so that Henderson
would not appear to have been late. Evans’s supervisor, Michael Britton, and
Senior Security Specialist Tad Fuqua submitted declarations that corroborated
Evans’s account of what was on the videotape.
Henderson opposed FedEx’s summary judgment motion. He argued that he
had established a prima facie case of retaliation. He observed that there was a gap
of just two weeks between his September 14 interview and his termination.
Henderson asserted that the close temporal proximity between those two events
was sufficient to establish causation. Henderson further argued that FedEx’s
justification for his termination was pretextual because other FedEx employees
were not fired after they falsified company records. In a sworn affidavit,
Henderson explained Evans must have known about his September 14 interview
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because Evans reminded Henderson about the time when the interview was
supposed to take place.
The district court granted FedEx’s motion for summary judgment. The
district court concluded that Henderson had failed to establish a causal link
between his protected conduct and the adverse employment action. The district
court explained that Henderson’s March 2005 complaint was too distant in time
from his termination to qualify as a proximate cause. The district court also noted
that there was no evidence that Henderson’s supervisors were even aware of his
September 14, 2005, interview. In any event, the district court determined that
Henderson’s falsification of his time card was a superseding cause that broke any
chain of causation between Henderson’s complaints and his dismissal. Finally,
even if Henderson had been able to establish a prima facie case, the district court
concluded that he had failed to demonstrate that FedEx’s proffered reason for his
termination—that he had falsified his time card—was pretextual.
Henderson subsequently filed a motion for reconsideration under Rule 59(e)
of the Federal Rules of Civil Procedure. Henderson asserted that the district court
made two principal errors in granting FedEx’s motion for summary judgment.
First, he argued that it was improper for the district court to rely on the videotape
of the time-card incident because the videotape was inadmissible hearsay. Second,
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he contended that the district court had misapplied the legal standard for Title VII
retaliation claims.
The district court denied Henderson’s motion for reconsideration. The
district court explained that it had not actually reviewed the surveillance
videotape, but rather, had considered the deposition testimony of several FedEx
employees who described what the videotape showed. That testimony was not
hearsay, the district court observed, because it was based on the personal
observations of those witnesses, and because it was offered as evidence of the
decisionmakers’ mindset rather than as proof that Henderson actually had
fabricated his time card. The district court additionally concluded that it had
applied the proper legal standard to Henderson’s retaliation claim.
II.
We review a district court’s evidentiary rulings for an abuse of discretion.
Corwin v. Walt Disney Co., 475 F.3d 1239, 1249 (11th Cir. 2007). The denial of a
motion for reconsideration is also reviewed for an abuse of discretion. Id. at 1254.
Evidence submitted in support of a summary judgment motion must be based on
personal knowledge and must set out facts that would be admissible under the
Federal Rules of Evidence. Fed.R.Civ.P. 56(c)(4). Inadmissible hearsay cannot
be considered in ruling on a motion for summary judgment. Macuba v. Deboer,
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193 F.3d 1316, 1322 (11th Cir. 1999). Hearsay is defined as “a statement, other
than one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c).
In this case, the district court did not review the videotape of the time-card
incident. Instead, the district court considered the testimony of Evans, Britton,
and Fuqua, all of whom stated that they had watched the videotape and that the
videotape showed Barnes “clocking in” for Henderson, in violation of FedEx’s
Acceptable Conduct Policy. That testimony was not hearsay because it was based
on the personal observations of those witnesses, rather than on out-of-court
statements made by others. See Fed.R.Evid. 801(c). In addition, the district court
considered that testimony not for the truth of the matter asserted—that Henderson
actually fabricated his time card—but as evidence of the decisionmakers’ state of
mind at the time that they terminated Henderson’s employment. Because the
testimony about the videotape was not hearsay, the district court did not abuse its
discretion by considering it.
II.
We review a district court’s grant of summary judgment de novo. Thomas v.
Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007). Summary judgment
should be granted “if the movant shows that there is no genuine dispute as to any
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material fact and the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). We view the evidence in the light most favorable to the
non-moving party and draw all reasonable inferences in favor of that party.
Thomas, 506 F.3d at 1363. Nevertheless, to overcome a motion for summary
judgment, the non-moving party must produce more than a scintilla of evidence to
support his position. Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th
Cir. 2004). As noted above, the denial of a motion for reconsideration is reviewed
for an abuse of discretion. Corwin, 475 F.3d at 1254.
Title VII prohibits an employer from retaliating against an employee who
has “opposed any practice made an unlawful employment practice by [Title VII]”
or who has “made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a).
Where, as here, a plaintiff relies on circumstantial evidence to prove retaliation,
we apply the burden-shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Brown v. Ala. Dep’t of
Transp., 597 F.3d 1160, 1181 (11th Cir. 2010). Under McDonnell Douglas, the
plaintiff must first establish a prima facie case of retaliation by showing that:
(1) he engaged in a statutorily protected activity; (2) he suffered an adverse
employment action; and (3) there is a causal connection between his protected
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activity and the adverse action. Id. If the plaintiff is able to make out a prima
facie case, the burden shifts to the defendant to offer a legitimate reason for the
challenged employment action. Id. The burden then shifts back to the plaintiff to
prove that the proffered legitimate reason is pretextual. Id. at 1181-82.
This case concerns the causation element of the prima facie case. To
establish causation, a plaintiff must show that: (1) the decisionmakers were aware
of his protected conduct and (2) his protected activity and the adverse employment
action were not wholly unrelated. Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 590
(11th Cir. 2000), abrogated on other grounds by Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Close
temporal proximity between the protected activity and the adverse action may be
sufficient to show that the two were not wholly unrelated. See Thomas, 506 F.3d
at 1364. If there is a delay of more than three months between the two events,
then the temporal proximity is not close enough, and the plaintiff must offer some
other evidence tending to show causation. Id. Intervening acts of misconduct can
break any causal link between the protected conduct and the adverse employment
action. See, e.g., Kiel v. Select Artificials, Inc. 169 F.3d 1131, 1136 (8th Cir.
1999) (en banc) (explaining that the plaintiff’s intervening misconduct “eroded
any causal connection that was suggested by the temporal proximity of his
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protected conduct and his termination”); cf. Fleming v. Boeing Co., 120 F.3d 242,
248 (11th Cir. 1997) (holding that the plaintiff had failed to establish causation,
even though the employer refused to hire her for a permanent position shortly after
she had filed a complaint of sexual harassment, because it was clear from the
record that the plaintiff failed to meet the employer’s qualifications for permanent
employment).
In this case, the district court applied the proper legal standards to
Henderson’s retaliation claim. The district court determined that Henderson had
been unable to establish a causal connection between his statutorily protected
activities and his termination. That conclusion is supported by the record
evidence. First, there was a six-month gap between Henderson’s March 21, 2005,
complaint and his September 28, 2005, termination, so Henderson could not rely
solely on temporal proximity to establish a connection between those two events.
See Thomas, 506 F.3d at 1364. Nor did he introduce any other evidence that
linked his March 21 complaint against Evans to his termination. See id.
Therefore, Henderson failed to establish causation with respect to that protected
activity.
In addition, Henderson was not able to establish a causal link between his
September 14, 2005, interview and his termination. Those events occurred only
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two weeks apart, which would normally give rise to an inference of causation.
See Thomas, 506 F.3d at 1364. In this case, however, Henderson failed to show
that the decisionmakers were aware of his protected conduct. Although Evans
apparently knew that Henderson was going to speak with someone from human
resources, there was no evidence that Evans ever learned what was said at the
meeting. Thus, Henderson failed to establish that Evans knew that he had engaged
in conduct protected by Title VII during the interview. See Gupta, 212 F.3d at 590
(explaining that a plaintiff must establish the decisionmaker’s knowledge of his
protected activity in order to prove causation). In addition, Henderson’s
falsification of his time card was an intervening act of misconduct that diminished
any inference of causation that may have arisen out of the temporal proximity
between his September 14 interview and his termination. See Kiel, 169 F.3d at
1136. Therefore, the district court appropriately concluded that Henderson had
failed to establish a causal connection between his September 14 interview and his
termination.
As Henderson failed to establish a prima facie case, it was unnecessary for
the district court to reach the pretext stage, so Henderson’s arguments regarding
pretext are irrelevant. See Brown, 597 F.3d at 1181-82 (noting that pretext
becomes a relevant issue only after the plaintiff has established a prima facie
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case). Because the district court properly evaluated Henderson’s Title VII
retaliation claim, we affirm the grant of summary judgment with respect to that
claim. We also affirm the denial of Henderson’s motion for reconsideration
because that motion failed to identify any errors in the district court’s summary
judgment order.
AFFIRMED.
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