[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
September 5, 2008
No. 07-12606 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 9:06-CV-80961-DMM
VINCENT C. KNIGHT,
Plaintiff-Appellant,
versus
STATE OF FLORIDA DEPARTMENT OF
TRANSPORTATION,
a.k.a. DOT,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(September 5, 2008)
Before BLACK and MARCUS, Circuit Judges, and EVANS,* District Judge.
PER CURIAM:
*
Honorable Orinda Evans, United States District Judge for the Northern District of
Georgia, sitting by designation.
Vincent C. Knight appeals from the district court’s grant of summary
judgment in favor of the Florida Department of Transportation (FDOT) on his
allegations of retaliation under Title VII and the Florida Civil Rights Act
(FCRA).1 Knight alleged he was terminated because he provided damaging
deposition testimony in a sexual harassment suit filed against FDOT. FDOT in
turn said it had a legitimate, non-discriminatory reason for terminating Knight:
Knight himself was sexually harassing a coworker. The district court granted
summary judgment in favor of FDOT, finding Knight had failed to establish a
prima facie case of retaliation and, alternatively, had failed to create a genuine
issue of material fact that FDOT’s proffered reason for his termination was
pretextual. We affirm.
I. BACKGROUND
Sargent Knight was an 18-year veteran of FDOT’s Motor Carrier
Compliance Office (MCCO). In May 2005, Knight provided deposition testimony
in a discrimination case brought by a coworker, Cindy Miller, against FDOT.
Knight describes his testimony against FDOT as “devastating”; in particular, he
testified in the Miller deposition that an employee used derogatory terms when
1
Because the FCRA is modeled after Title VII and Florida courts look to Title VII case
law when interpreting the FCRA, we address Knight’s claims identically. See Jones v. United
Space Alliance, LLC, 494 F.3d 1306, 1310 (11th Cir. 2007).
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referencing Miller in both his presence and the presence of his direct supervisor,
Lt. Terry Gartner. This directly contradicted Gartner’s testimony, because Gartner
testified he heard no such thing.
A month or so after Knight’s testimony, Gartner informed Knight that a
coworker, Shannon Evert, had accused Knight of sexual harassment. According to
Evert’s complaint, Knight and Evert had a consensual sexual relationship in 2004.
Knight continued to pursue the relationship after it ended, until Evert asked him in
February 2005 to leave her alone. According to Evert, Knight backed off until
June 2005, when his unwelcomed advances continued. Knight admitted he and
Evert had a consensual relationship, but he insisted the relationship was at all
times consensual and never transformed into sexual harassment.
Evert filed her complaint with Gartner. Gartner informed Knight he was
accused of sexual harassment and told him to “[h]ave a nice day.” Gartner
forwarded the complaint form, on which he wrote, “Knight is sexually harassing
Evert.”
The Equal Employment Opportunity Office (EOO), which is within FDOT
but outside the MCCO, investigated the complaint. Michael Klump, the EOO
investigator who investigated the Miller matter, investigated Evert’s allegations.
Klump interviewed Evert, Knight, Gartner, and a friend of Evert. In addition,
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Evert provided pages from Knight’s journal in which he referred to her
romantically. Klump found Evert’s allegations credible, and found Knight’s
statements–that the relationship was consensual and Evert was sending him mixed
messages–incredible.
Col. Graham Fountain, the director of MCCO, received the conclusions of
Klump’s investigation. Fountain decided to terminate Knight based on the failure
to report his consensual relationship with Evert (a violation of MCCO’s rules) and
his sexual harassment of Evert. Fountain admitted he was aware of Knight’s
deposition testimony in the Miller case and thought Knight’s testimony had hurt
FDOT’s case.
Knight sued under Title VII and Florida law, alleging his termination was in
retaliation for his testimony in the Miller case. FDOT filed a motion for summary
judgment, which the district court granted. The district court found Knight had
failed to make out a prima facie case of retaliation and, in any event, had failed to
come forward with a genuine issue of material fact as to whether FDOT’s
proffered reason for his termination was pretextual. Knight appeals.
II. DISCUSSION
We review the grant of summary judgment de novo. Mize v. Jefferson City
Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996). Summary judgment is
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appropriate when, viewing the facts in the light most favorable to the non-moving
party, there is no genuine issue of material fact. Id.
On appeal, Knight argues the district court erred in finding he failed to
present a prima facie case of retaliation and failed to demonstrate the proffered
reason for his termination was pretextual. To establish a prima facie case of
retaliation under Title VII, the plaintiff must show (1) a protected activity; (2) an
adverse action taken by the employer; and (3) a causal connection. Clover v. Total
Sys. Servs., Inc., 176 F.3d 1346, 1354 (11th Cir. 1999). If the employer responds
by providing a legitimate, non-discriminatory reason for the adverse action, then
the burden remains on the plaintiff to rebut the proffered reason and demonstrate it
is mere pretext. Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir 1998).
We assume, without deciding, that Knight has successfully set forth the
prima facie case. Having thoroughly reviewed the record evidence and the
arguments in this case, however, we conclude Knight has failed to establish a
genuine issue of material fact that FDOT’s stated reason for his termination was
pretextual.
Pretext can be shown either by directly persuading a court that
discriminatory motive more likely motivated the employer or by indirectly
demonstrating the provided reason was unworthy of credence. Sweat v. Miller
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Brewing Co., 708 F.2d 655, 656 (11th Cir. 1983). See also Harris v. Shelby
County Bd. Of Educ., 99 F.3d 1078, 1083 (11th Cir. 1996) (“The focus of the case
after the defendant has met the burden of production is on the defendant’s
subjective intent and the motivation behind the defendant’s adverse employment
actions directed at the plaintiff.”). A plaintiff must do more than criticize the
business judgment of his employer, and he cannot simply quarrel with the wisdom
of the decision. Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000).
Moreover, the inquiry is not whether Knight actually sexually harassed
Evert. Rather, the inquiry is whether the employer had a good-faith basis for its
belief and the belief actually motivated its decision. Elrod v. Sears, Roebuck &
Co., 939 F.2d 1466, 1470 (11th Cir. 1991). In reaching an employment decision,
an employer is free to weigh the credibility of different witnesses: “When the
resulting employer’s investigation . . . produces contradictory accounts of
significant historical events, the employer can lawfully make a choice between the
conflicting versions . . . , as long as the choice is an honest choice.” EEOC v.
Total Sys. Servs., Inc., 221 F.3d 1171, 1176 (11th Cir. 2000).
In this case, Fountain was the decisionmaker who terminated Knight. After
Evert complained, the complaint was referred to the investigators at the EOO, an
office independent of the MCCO. They investigated the case and determined
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Evert’s version was credible, whereas Knight’s version was not. Fountain,
reviewing the report upholding Evert’s claims of sexual harassment, terminated
Knight. Knight has offered no evidence either that (1) the determination by the
EOO investigators that Evert was credible was not made in good faith, or
(2) Fountain’s decision to terminate Knight based on the sexual harassment was
not his actual reason for the decision. He therefore cannot survive summary
judgment.
Knight presents several facts he believes are sufficient to get him past
summary judgment. None of them actually address the questions relevant to the
inquiry. First, Knight argues Gartner’s “determinative language” and “fervor” to
pursue Evert’s complaint are evidence that retaliatory animus actually fueled the
decision to terminate Knight. But Gartner was not a decisionmaker; he was not
involved in either the investigation of the complaint or Fountain’s decision to
terminate Knight. Therefore, the facts Knight presents are not sufficient to survive
summary judgment.
Second, Knight states he has evidence that Evert’s account of their
relationship is not credible. He says the evidence demonstrates Evert contacted
Knight several times and sent him mixed messages, contradicting the story she
told the EOO investigators. But this is the sort of inquiry–whether the complaint
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was genuine–expressly disclaimed by our precedent. See Elrod, 939 F.2d at 1470.
The question is whether the investigation and decision were conducted in good
faith, not whether Evert is a liar.
Third, Knight argues the EOO’s investigation of Evert’s complaint was
handled differently from other investigations. No doubt evidence an investigation
was perfunctory or capricious in comparison to other investigations would indeed
be evidence the investigation was not conducted in good faith. In this case,
however, Knight only states the investigation of Evert’s complaint was shorter
than the Miller investigation and involved fewer witnesses. He has no evidence
suggesting his investigation should have been longer or more thorough. The mere
fact that different investigations require different treatment is not, absent further
basis for comparison, sufficient to raise a genuine issue of material fact. Without
providing further detail on how his situation should have been treated similarly to
the Miller investigation, Knight cannot survive summary judgment on this basis.
Finally, Knight points out that Fountain–the ultimate decisionmaker in this
case–knew about Knight’s protected activity. Although mere knowledge of
protected activity by a decisionmaker can be sufficient to survive the prima facie
case, see Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997),
knowledge alone is not necessarily sufficient once the analysis moves to the
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pretext stage. Therefore, Fountain’s knowledge that Knight engaged in protected
activity is not evidence sufficient on its own to show the actual motivation for the
termination was retaliatory.
III. CONCLUSION
In sum, FDOT presented with a legitimate, non-discriminatory reason for
terminating Knight (his harassment of Evert), and Knight has failed to come
forward with evidence creating a genuine issue of material fact as to whether the
termination was actually motivated by another reason or whether the investigation
was not conducted in good faith. The district court’s judgment is AFFIRMED.
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