[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 24, 2008
No. 08-10161 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-01992-CV-BBM-1
SUNNY EKOKOTU,
Plaintiff-Appellant,
versus
CHRISTOPHER BOYLE,
Defendant,
FEDERAL EXPRESS CORPORATION,
SHEILA HARTSFIELD,
CHRISTIAN BOYLE,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(September 24, 2008)
Before ANDERSON, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Sunny Ekokotu, proceeding pro se, appeals the district court’s grant of
summary judgment in favor of Federal Express Corp. (“FedEx”) in his civil action
alleging, among other things, employment discrimination and retaliation under
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-2, 3,
and negligent retention, O.C.G.A. § 34-7-20 . For the reasons that follow, we
affirm.
I. Background
Ekokotu, an African-American of Nigerian decent employed as a courier
with FedEx since 1998, filed a complaint against FedEx, alleging, inter alia, race,
gender, and national origin discrimination, retaliation, and negligent supervision
and retention.1 According to Ekokotu, he filed an internal complaint in 2005
against his direct supervisor Shelia Hartsfield, based on disciplinary counseling
that occurred after he was accused of keeping keys to the truck in his locker.
Hartsfield, upset about the complaint, warned Ekokotu that she would get him
back. Thereafter, in 2006, Ekokotu received a warning letter for allegedly
1
Ekokotu also alleged age discrimination and retaliation and conspiracy claims, but he
does not challenge the grant of summary judgment on those issues; thus, they are abandoned.
Access Now, Inc. v. Southwest Airlines, Co., 385 F.3d 1324, 1330 (11th Cir. 2004).
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violating the company’s policy against using a cell phone while driving. Other
employees were not disciplined for similar violations. Ekokotu received additional
warnings for failing to show up for work despite having scheduled the day off and
falling below FedEx’s required punctuality policy. And his work hours were
changed without notice, resulting in a decrease in his hours and pay.2
FedEx moved for summary judgment, asserting that Ekokotu failed to set
forth a prima facie case of discrimination or retaliation, but even if he did, it had
legitimate, non-discriminatory reasons for its actions.
The district court granted summary judgment, over Ekokotu’s objections,
considering only (1) the April 2006 letter for talking on his cell phone while
driving; (2) the April 2006 letter for no call/no show at work; (3) the change in his
hours and schedule; and (4) the May 2006 letter regarding his unsatisfactory
punctuality. Although the court agreed that Ekokotu could not make out a prima
facie case, it assumed that he could for purposes of analysis. The court then
concluded that Ekokotu had not shown that FedEx’s legitimate non-discriminatory
reasons were pretexts for discrimination and retaliation. In reaching this
conclusion, the court rejected Ekokotu’s claim that Hartsfield’s statements were
2
Ekokotu initially listed other allegations of discrimination and retaliation. Because
Ekokotu conceded at the summary judgment stage that these were the only adverse actions he
suffered, we do not address his other allegations.
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direct evidence of discrimination or retaliation. It further found that Ekokotu had
not shown that he did not commit the violations for which he was disciplined; nor
had he shown that FedEx did not believe he had committed those violations.
Ekokotu moved for reconsideration, which the court denied because there
was no newly discovered evidence, intervening case law, or error in law or fact.
This appeal followed. After Ekokotu filed his notice of appeal, the court awarded
fees and costs to FedEx. Ekokotu did not amend his notice of appeal to include
these orders.
II. Discussion 3
We review a district court’s grant of summary judgment de novo, applying
the same legal standard used by the district court. Johnson v. Bd. of Regents of
Univ. of Ga., 263 F.3d 1234, 1242 (11th Cir. 2001). We draw all factual
inferences in a light most favorable to the non-moving party. Id. at 1243.
3
After a thorough review of the record and the parties briefs, we affirm the district
court’s evidentiary rulings. The district court did not abuse its discretion by refusing to strike a
portion of a witness’s declaration or by not granting an adverse inference, and we do not address
these claims further. We also lack jurisdiction to consider the denial of the motion for
reconsideration and for assessment of costs because the notice of appeal did not establish an
intent to appeal those decisions. See LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 836-
838 (11th Cir. 1998) (concluding the court lacked jurisdiction to consider challenge to award of
attorney’s fees where the notice of appeal was filed before the award of fees); Pitney Bowes, Inc.
v. Mestre, 701 F.2d 1365, 1375 (11th Cir. 1983) (“Where the appellant notices the appeal of a
specified judgment only or a part thereof, however, this court has no jurisdiction to review other
judgments or issues which are not expressly referred to and which are not impliedly intended for
appeal.”). Even if we were to conclude that we retained jurisdiction to review the denial of the
motion for reconsideration, we conclude the court properly denied the motion for the reasons
given in the district court’s order.
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Summary judgment is appropriate where “there is no genuine issue as to any
material fact and . . . the moving party is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(c). The moving party bears the burden of production. Flicking v.
United States, 507 F.3d 1302, 1304 (11th Cir. 2007). If the moving party meets
this burden, “the nonmoving party must present evidence beyond the pleadings
showing that a reasonable jury could find in its favor.” Id. “Speculation does not
create a genuine issue of fact.” Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181
(11th Cir. 2005) (quotation omitted).
A. Title VII Discrimination and Retaliation
Title VII prohibits, inter alia, an employer from discharging or otherwise
discriminating against a person based on the person’s race, color, religion, sex, or
national origin, or retaliating against an employee for reporting discrimination. 42
U.S.C. §§ 2000e-2(a)(1), 3(a). Under Title VII, a plaintiff bears the ultimate
burden of proving discriminatory treatment by a preponderance of the evidence.
Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990). An
employee may meet his burden through direct or circumstantial evidence.
Direct evidence is “evidence, which if believed, proves existence of fact in
issue without inference or presumption.” Merritt v. Dillard Paper Co., 120 F.3d
1181, 1189 (11th Cir. 1997) (quotation omitted). Evidence that is subject to more
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than one interpretation is not direct evidence. Id.
Absent direct evidence of an intent to discriminate, a plaintiff may prove his
case through circumstantial evidence, using the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973), and Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). See E.E.O.C. v. Joe’s Stone Crabs, Inc.,
296 F.3d 1265, 1272-73 (11th Cir. 2002); Olmsted v. Taco Bell Corp., 141 F.3d
1457, 1460 (11th Cir. 1998) (applying burden-shifting analysis to retaliation
claims).
Under this framework, the plaintiff must demonstrate a prima facie case and
may meet this burden by showing that: (1) he was a member of a protected class;
(2) he was qualified for the job; (3) he suffered an adverse employment action; and
(4) he was treated less favorably than a similarly situated individual outside his
protected class. Maynard v. Bd. of Regents of the Div. of the Univ. of Fla. Dep’t
of Educ., 342 F.3d 1281, 1289 (11th Cir. 2003). A plaintiff establishes a prima
facie case of retaliation, by showing that (1) he engaged in statutorily protected
expression, (2) he suffered an adverse employment action, and (3) there is some
causal relationship between the two events. Holifield v. Reno, 115 F.3d 1555,
1566 (11th Cir. 1997).
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If the plaintiff successfully establishes a prima facie case, the burden then
shifts to the employer to rebut a presumption of discrimination by producing
evidence that its action was taken for one or more legitimate, non-discriminatory
reasons. Joe’s Stone Crabs, 296 F.3d at 1272. If the employer meets its burden of
production, “the plaintiff must show that the proffered reason really is a pretext for
unlawful discrimination.” Id. at 1273. To establish pretext a “plaintiff must
‘demonstrate that the proffered reason was not the true reason for the employment
decision.’” Jackson v. State of Alabama State Tenure Comm’n, 405 F.3d 1276,
1289 (11th Cir. 2005) (quoting Burdine, 450 U.S. at 256). The plaintiff may show
this “‘either directly by persuading the court that a discriminatory reason more
likely motivated the employer or indirectly by showing that the employer’s
proffered explanation is unworthy of credence.’” Id. (quoting Burdine, 450 U.S. at
256). “In evaluating a summary judgment motion, the district court must evaluate
whether the plaintiff has demonstrated such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could find them
unworthy of credence.” Id. (quotation omitted).
“The identification of inconsistencies in the defendant’s testimony is
evidence of pretext,” but the “mere denial of credibility” has no evidentiary value.
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Howard v. BP Oil Co., Inc., 32 F.3d 520, 526 (11th Cir. 1994). A plaintiff does
not demonstrate pretext by showing that the defendant had a mistaken belief about
the facts that formed the basis for the alleged nondiscriminatory reason. Woodard
v. Fanboy, L.L.C., 298 F.3d 1261, 1265 (11th Cir. 2002). Instead, the plaintiff
must present evidence that the defendant did not honestly believe the facts on
which it based its nondiscriminatory reason. Id.
A plaintiff does not always defeat a motion for summary judgment by
putting forth evidence to reject the defendant’s explanation. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 148, 120 S.Ct. 2097, 2109, 147 L.Ed.2d
105 (2000). An employer is entitled to summary judgment “if the plaintiff created
only a weak issue of fact as to whether the employer’s reason was untrue and there
was abundant and uncontroverted independent evidence that no discrimination
occurred.” Id.
A mixed-motive analysis is appropriate if the plaintiff “present[s] sufficient
evidence for a reasonable jury to conclude, by a preponderance of the evidence,
that race, color, religion, sex, or national origin was a motivating factor for any
employment practice.” See Desert Palace, Inc. v. Costa, 539 U.S. 90, 101-02, 123
S.Ct. 2148, 2155, 156 L.Ed.2d 84 (2003) (quotation omitted) (addressing when a
mixed-motive jury instruction is appropriate).
8
Upon review, we conclude that Ekokotu has not produced direct evidence of
discrimination or retaliation. Hartsfield’s alleged statement that she would get
Ekokotu back requires an inference and is subject to more than one interpretation.
Turning to an analysis of the circumstantial evidence, we will assume, as the
district court did, that Ekokotu presented a prima facie case. FedEx met its burden
to produce legitimate, non-discriminatory, non-retaliatory reasons for disciplining
Ekokotu and changing his work schedule. According to the evidence, an
eyewitness observed Ekokotu talking on his cell phone while driving. Although
other employees had been accused on similar misconduct, there were no
eyewitnesses to those incidents, thus these incidents do not establish that FedEx
treated Ekokotu differently based on impermissible factors. In addition, the record
reflects that Ekokotu was not given the day off on April 11, the date on which he
failed to show up for his shift.
Moreover, FedEx’s decision to change the shift schedules was to increase
the efficiency of its drivers and limit the time the afternoon shift had to wait for
available trucks. We will not second guess an employer’s business decision.
Alexander v. Fulton County, Ga., 207 F.3d 1303, 1341 (11th Cir. 2000).
Finally, FedEx utilized very specific punctuality requirements, and although
Ekokotu asserts that his rating of 95.7 percent was the mathematical equivalent of
9
the minimum required 96 percent, the record reflects that the company
distinguished between levels of punctuality by tenths of a percentage point. Thus,
under the policy, the minimum acceptable range was 96.9 percent, and 96.0 percent
to 96.8 percent was satisfactory. Ekokotu’s punctuality fell below the acceptable
range.
Ekokotu has not produced evidence to establish that FedEx’s reasons were a
pretext for discrimination or retaliation. Moreover, he has not shown that FedEx
did not honestly believe its legitimate reasons for acting.
In addition, Ekokotu’s circumstantial evidence does not carry his burden to
show that discrimination and/or retaliation were FedEx’s real motives for acting.
Because Ekokotu did not demonstrate that FedEx had a discriminatory or
retaliatory motive, a mixed-motive analysis would be inappropriate. Accordingly,
summary judgment was proper on these claims.
B. Negligent-Retention
Under O.C.G.A. § 34-7-20, an “employer is bound to exercise ordinary care
in the selection of employees and not to retain them after knowledge of
incompetency.” In order to sustain a claim for negligent retention under Georgia
law, a plaintiff must show that the employer knew or should have known of the
employee’s propensity to engage in the conduct which caused the plaintiff’s injury
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by proffering evidence that is substantially related to the injury-causing conduct.
Herrin Bus. Prod., Inc. v. Ergle, 563 S.E.2d 442, 446 (Ga. Ct. App. 2002). The
claim of negligent retention is derivative of the underlying claim. Phinazee v.
Interstate Nationalease, Inc., 514 S.E.2d 843, 846 (Ga. Ct. App. 1999). Thus, if the
underlying claim fails, the plaintiff can not sustain the claim for negligent
retention. Id. Because Ekokotu’s Title VII discrimination and retaliation claims
fail, he cannot sustain his claim of negligent retention.
III. Conclusion
Based on our review of the record and the parties’ briefs, we AFFIRM.
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