[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-13618 May 20, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 07-00670-CV-2-IPJ
WILLIE DRAKE-SIMS,
individually and on behalf
of others similarly situated,
Plaintiff-Appellant-Cross-Appellee,
versus
BURLINGTON COAT FACTORY WAREHOUSE OF
ALABAMA, INC., et al.,
Defendants,
BURLINGTON COAT FACTORY OF ALABAMA, LLC,
Defendant-Appellee-Cross-Appellant.
________________________
Appeals from the United States District Court
for the Northern District of Alabama
_________________________
(May 20, 2009)
Before BIRCH, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Willie Drake-Sims (“Drake-Sims”), an African-American, appeals the
district court’s grant of summary judgment in favor of her former employer,
Burlington Coat Factory of Alabama, L.L.C. (“BCF”), on her claims of
discrimination and retaliation brought under Title VII of the Civil Rights Act, 42
U.S.C. §§ 2000e-2(a), 3(a). BCF cross-appeals that portion of the district court’s
order requiring each party to bear its own costs. Upon careful review of the record
and consideration of the parties’ briefs, we AFFIRM the district court’s entry of
summary judgment for BCF on Drake-Sims’ discrimination and retaliation claims.
We VACATE that aspect of the district court’s order requiring each party to bear
its own costs and REMAND for further explanation as to why the court denied an
award of costs, or, alternatively, for an award of costs in favor of BCF.
I. BACKGROUND
In 2007, Drake-Sims filed a Third Amended Complaint against BCF
alleging that BCF: (1) discriminated against her on the basis of her race when it
failed to promote her to the position of store manager, paid her a salary that was
lower than the salary it paid to similarly situated white employees, and terminated
her employment; and (2) BCF retaliated against her for complaining about
2
discriminatory practices when it gave her poor job performance evaluations, failed
to promote her, and terminated her employment. Drake-Sims requested various
forms of declaratory and injunctive relief as well as monetary damages.
BCF answered, denying the allegations in the complaint and asserting
several affirmative defenses. Following discovery, BCF moved for summary
judgment. In support of its motion, BCF submitted, inter alia, depositions from
Drake-Sims; Todd Brawner, BCF’s former regional manager; Richard Lange,
BCF’s former district manager; and two BCF assistant managers, Ann Marie
Kearby and Laurie Ann Bardin. BCF also submitted affidavits from Kearby,
Bardin, and Brawner.
In her deposition, Drake-Sims testified that she began working for BCF in
1989 as a sales associate at the company’s Hoover, Alabama store. In 1998, she
was promoted to operations manager of BCF’s Crestwood Boulevard store in
Eastwood, Alabama (“Crestwood store”). She testified that as operations manager
of the Crestwood Store, she was paid less than Kearby and Bardin, the two white
assistant managers of merchandising at the Hoover store.1 According to Drake-
1
The record reflects that in 2004, Drake-Sims was paid $16.90 per hour, resulting in an
annual salary of approximately $35,000. In 2005 and 2006, she earned $17.45 per hour, or
$36,000 per year. Bardin was hired at a rate of $22.73 per hour, or $47,000 per year. Her salary
remained the same until 2007, when she was promoted to store manager. Kearby was hired as
an assistant manager at the Hoover store, but was recruited by another company in 2003. BCF
rehired her as an assistant manger in 2005 at $23.07 per hour, or $48,000 per year. Her salary
remained the same until December 2006, when she was promoted to store manager at a new
3
Sims, because she and Kearby and Bardin all held assistant positions, they shared
equal responsibilities and should have received the same pay. Id. In March 2004,
Drake-Sims filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”), alleging that she was being paid
“substantially less than a similarly situated White employee” because of her race.2
When Beverly Knight, the manager of the Crestwood store, left the company
in August 2004, Drake-Sims served as acting store manager while BCF searched
for Knight’s replacement. Although Drakes-Sims submitted an application for the
store manager position, Lange, who was tasked with filling the vacant Crestwood
store manager position soon after being hired by BCF in 2004 as a district
manager, selected Holly McGee, a white woman who previously had worked as an
assistant store manager at Dillard’s, to fill the vacancy. Lange testified that he
conducted interviews with five external candidates but did not interview any of the
in-house candidates, although he seriously considered Drake-Sims for the position.
While Drake-Sims was knowledgeable about BCF’s operations, policies, and
procedures, and had worked hard during her time as acting store manager, Lange
noted that she often overlooked details, at times failed to follow company policies
BCF location.
2
The EEOC dismissed the charge and notified Drake-Sims of her right to sue on 30
September 2004.
4
or respond to his direction and coaching, and had not acted with enough urgency in
attempting to staff vacant positions in the store. With respect to her managerial
skills, Lange indicated that while some employees at the Crestwood store were
very loyal to Drake-Sims, others felt that her leadership was inconsistent and that
she did not act in an even-handed fashion. Lange ultimately selected McGee based
on her experience managing a high-volume store during a period in which her
company was going through significant changes and because she had good
communication and problem-solving skills, was “persistent” and “adaptable,” and
“had a lot of enthusiasm and a very positive attitude to the business.” Drake-Sims
testified that she was nevertheless more qualified than McGee because she had
been with BCF for a long period of time and was familiar with its policies and
business objectives. She stated that McGee did a fair job but appeared to be
overwhelmed during her time as store manager. On one occasion, McGee admitted
to Drake-Sims that she had never run a store as large as the Crestwood store.
On 8 March 2005, Drake-Sims received a negative performance evaluation
from Lange for the December 2003 to December 2004 evaluation period. With
respect to Drake-Sims’ potential for advancement, Lange’s evaluation concluded
that she “will probably remain at a similar level of responsibility.” Drake-Sims
subsequently wrote a letter, dated 20 May 2005, to Judith Mascio, the director of
5
BCF’s human resources department, and Wade Seale, the regional manager at the
time, complaining that she had received “unjust and discriminatory treatment”
during the hiring process for the Crestwood store manager position. She claimed
that the decision not to interview or promote her was “based on past issues with
Wade Seale” and listed several of her accomplishments during her tenure as acting
store manager.
In her 8 July 2005 response, Mascio identified a number of problems with
Drake-Sims’ job performance, including, inter alia, Drake-Sims’ “less than
satisfactory attendance” and failure to follow the company’s human resources
policies, to staff open positions, or to keep payroll within budget. Mascio also
noted that Drake-Sims’ 2003-2004 year-end review, which gave her an overall
score of “3 – meets expectations” but rated her “needs improvement” in four out of
eight categories, demonstrated that she was not “ready for the next level of
responsibility,” and advised Drake-Sims that the decision not to hire her for the
store manager position was “based on [her] performance and reliability” and had
no “discriminatory basis.”
Some time in July or August, Brawner, Lange, and Seale held a meeting
with Drake-Sims to discuss the concerns she had raised in her letter to Mascio.
While Lange had read the letter and consulted with Mascio regarding its contents,
6
he did not interpret it as suggesting that Drake-Sims had been discriminated
against. According to both Brawner and Lange, Drake-Sims made no mention of
any alleged race discrimination during the meeting. Drake-Sims testified,
however, that she had had ongoing discussions with Quederra Shabazz, a BCF loss
prevention auditor, about what she believed to be BCF’s racially discriminatory
practices and that Shabazz indicated that she was aware of discrimination
occurring at other BCF stores.
In November 2005, Drake-Sims applied for the position of store manager at
the Hoover store after Garry Yates, who had been the store manager, left BCF.
Elaine Cox, a white woman who had been employed by Stein Mart as a store
manager, was selected for the position. Brawner testified that Drake-Sims was not
selected to fill the vacancy because Cox had experience as a store manager, BCF
was already in the process of hiring Cox when Drake-Sims indicated her interest in
being considered for the position, and Drake-Sims’ performance had not improved
to any significant degree since she met with Lange, Seale, and Brawner to discuss
why she had not been selected for the Crestwood store manager position.
According to Lange, while he believed it was “the best thing for everybody
involved” to promote from within, Drake-Sims was not ready for the responsibility
of managing a store. Lange explained that Drake-Sims had not been considered for
7
any store manager positions other than the one at the Crestwood store because her
overall review score of four on her 2005 annual review, which indicated a number
of performance problems, precluded eligibility for promotion. Lange further
indicated that while he was aware that Drake-Sims had filed an EEOC complaint
based on disparate pay, he did not know that the complaint alleged discrimination
on the basis of race and was never advised that any employee had complained of
race discrimination.
That same month, McGee informed Drake-Sims of reports that Jheri Hunter
and Mary Glenn, Crestwood store employees, were stealing merchandise from the
store. On 24 December 2005, Harrison notified Drake-Sims about a possible
employee theft in progress at the front of the store. Drake-Sims immediately went
to the front but did not observe any customers or merchandise. She examined the
cashier detail tape and noticed a transaction that had been voided using McGee’s
key card.3 Drake-Sims confronted McGee about her violation of company policy,
but agreed, upon McGee’s request, not to report McGee to the district manager
because it did not appear that any items had actually been taken from the store.
3
Drake-Sims explained that a key card was a specially programmed time card that
allowed store managers and assistant managers to authorize certain transactions, such as voids
and returns, and also allowed them to open doors to receive shipments. Id. at 140. Although
company policy prohibited managers from giving their key cards to other employees, Drake-
Sims stated that it was a common practice for managers to violate this policy and that she herself
would do so once or twice a month when she was the only manager present in the store. Id. at
131-33.
8
Several months later, however, Drake-Sims mentioned this incident to Shabazz.
At some point in early 2006, Sheena Harrison, a department manager at the
Crestwood store, also advised Drake-Sims that she believed Hunter and Glenn
were having a third employee, LaParisha Denton, put merchandise in their cars in
the morning before other employees arrived at work. Drake-Sims notified David
Pace, a district manager, about the possible theft problem, but did not report to him
McGee’s violation of the company’s key card policy.
On 11 January 2006, McGee gave Drake-Sims a negative performance
evaluation for the December 2004 to December 2005 evaluation period. Drake-
Sims was upset after receiving McGee’s evaluation, which she believed did not
“reflect [her] ability at all.” McGee told Drake-Sims that Lange had directed her to
write the negative review, and indicated that she had strongly disagreed with his
assessment. On 14 February 2006, the same day she received the evaluation,
Drake-Sims filed a second EEOC charge based on unequal pay and BCF’s failure
to hire her for the Hoover store manager position. She alleged additionally that
management officials had retaliated against her for complaining about
discriminatory practices. McGee left the company in 2006, and Drake-Sims again
served as acting store manager of the Crestwood store.
In July 2006, John Petrino, BCF’s head of loss prevention, contacted Drake-
9
Sims about the unusually high amount of “shrink” (inventory loss) at the
Crestwood store. Drake-Sims told Petrino that these losses were due to employee
theft and that McGee and Pace had been aware of the problem. She later related
this same information to Brawner. After Drake-Sims advised Petrino and Brawner
of the employee theft problem at the Crestwood location, BCF sent a loss
prevention team to the store to investigate. About a week later, Brawner himself
came to the Crestwood store and interviewed a number of employees. Some of
these employees later told Drake-Sims that Brawner had asked questions about her
personal life.
On 31 July 2006, while the loss prevention investigation was still ongoing,
Drake-Sims was added as a plaintiff in an employment discrimination lawsuit filed
against BCF by Antonio Samuels, one of Drake-Sims’ former coworkers. The
district court later severed Drake-Sims’ and Samuels’ cases. On 7 August 2006,
one week after she joined Samuels’ lawsuit, Drake-Sims was notified that she was
being terminated for giving her keycard to other employees and for failing to report
McGee for giving her keycard to an employee who used it in an act of theft.
Brawner testified that as regional manager for BCF’s southeast region, he made the
decision to terminate Drake-Sims’ employment after reviewing the results of the
loss-prevention investigation at the Crestwood store.
10
In addition to Drake-Sims, several other employees of the Crestwood store
were terminated as a result of the investigation: Alethea Williams was terminated
for “free bagging”4 merchandise; Justin Wright, a white employee, for failing to
report a theft of which he had firsthand knowledge; Denton for stealing
merchandise; and Glenn for falsifying information on a company document.
Hunter and Harrison, both African-American, were the only two employees found
to have violated company policies who were not terminated following the
investigation. Hunter was issued a final written warning for giving her key card
out to other employees, and Harrison received a warning for failing to report that
McGee had given her key card to another employee. Brawner explained that
Harrison was not terminated because she reported the incident to Drake-Sims, who
was her immediate supervisor. Drake-Sims, on the other hand was required, as a
member of senior management, to report any potential theft to the district office
and, if necessary, to the regional office and to BCF’s corporate offices.5 Brawner
admitted that he received a copy of Drake-Sims’ February 2006 EEOC charge but
4
Brawner explained that “free bagging” is when an employee places items in a
customer’s shopping bag without ringing them up on the cash register so that the customer may
remove the items from the store without paying for them.
5
According to BCF’s Loss Prevention Policy, employees are required to report incidents
to their immediate supervisors. The policy further provides that where this is impracticable or
the employee’s immediate supervisor is involved, the employee should contact Corporate Loss
Prevention.
11
stated that he was unaware that Drake-Sims had filed a discrimination lawsuit
against BCF at the time he made the decision to terminate her.
With respect to Drake-Sims’ disparate pay allegations, Brawner testified that
BCF considered a number of factors when setting the salaries of assistant
managers, including current economic and employment conditions; the applicant’s
relevant experience; whether the applicant was employed or unemployed; and sales
volume, since a store with higher earnings could support a larger payroll. While
the Hoover store had gross annual sales of eight to nine million dollars, the
Crestwood store had between six and seven million.
Brawner further explained that BCF typically offers higher salaries to
individuals who are employed with other companies in order to persuade them to
leave their current employers. The fact that Drake-Sims was a long-term BCF
employee also “had an effect on [her] pay relative to more newly hired employees”
because employees of BCF were awarded annual salaries based in part on personal
performance, and in part on store performance. Employees therefore were unlikely
to receive substantial raises unless both their personal performance and their
store’s performance were consistently excellent. Lange agreed that while
managers at BCF’s Hoover store earned more than managers at the Crestwood
store, he did not consider this problematic because BCF negotiated salaries based
12
on an individual’s prior experience and the value they brought to the company.
According to their sworn statements, both Kearby and Bardin had worked as
assistant managers at other retail stores prior to being hired by BCF and had
negotiated higher salaries, $38,000 from $31,000 and $44,500 from $41,000,
respectively, in exchange for agreeing to leave their previous employers. Neither
Kearby nor Bardin would have accepted a position at BCF had BCF not offered
them increased salaries. BCF subsequently increased Kearby’s salary to $42,000
after she received a job offer from Staples, and although she left the company in
2003 to take a higher-paying position with DSW Shoes, she returned to BCF in
2005 after BCF promised her another salary increase. Bardin received a small
raise in 2003, but did not receive any more salary increases until she was promoted
to store manager in 2007.
The district court concluded that BCF was entitled to judgment as a matter
of law on all of Drake-Sims’ claims.6 The court first found that Drake-Sims had
failed to establish a prima facie case of race discrimination based on disparate pay
because she had not identified any similarly situated employees outside of her
6
Although the district court found that Drake-Sims was judicially estopped from
bringing any claims for money damages because she had failed to disclose her EEOC charges in
her Chapter 13 bankruptcy proceeding, Drake-Sims does not challenge this ruling in her opening
brief and thus has abandoned this issue. See Greenbriar, Ltd. v. City of Alabaster, 881 F.2d
1570, 1573 n.6 (11th Cir. 1989). The district court correctly determined that judicial estoppel
did not, however, preclude her from pursuing her claims for equitable relief. Burnes v. Pemco
Aeroplex, Inc., 291 F.3d 1282, 1288-89 (11th Cir. 2002).
13
protected class who had been treated more favorably. Although Drake-Sims
compared herself to Kearby and Bardin, both of whom were also assistant
managers, the court noted that both Kearby and Bardin had negotiated higher
salaries as a condition of leaving their previous employers to join BCF. Kearby
had also leveraged competing offers from other companies to secure further salary
increases. Because Drake-Sims had been promoted from within and had not
obtained competing offers from other companies, she and Kearby and Bardin were
not similarly situated.
The district court found that Drake-Sims likewise had failed to identify any
similarly situated comparators with respect to her failure to promote claim because
the selectees for the positions for which Drake-Sims had applied, McGee and Cox,
both had prior experience as store managers with other companies. The court
found further that BCF had a legitimate, non-discriminatory reason for not hiring
Drake-Sims because evidence in the record suggested that there were serious
problems at the Crestwood store during Drake-Sims’ tenure as acting store
manager.
The district court also found that Drake-Sims had not identified any
similarly situated comparators with respect to her claim that she was terminated
because of her race. Although Harrison also knew of the possible theft, she was a
14
member of the same protected class as Drake-Sims and was not a member of the
store’s senior management team. Two other employees, Justin Wright and Pete
Rouyverol, were not appropriate comparators because: (1) Wright, who was white,
had also been terminated and thus was not treated more favorably than Drake-
Sims; (2) there was no evidence that Rouyverol, who had been employed as a
greeter, had any knowledge of employee theft; and (3) neither was a member of
senior management. Id.7
With respect to Drake-Sims’ retaliation claim, the court found that there was
insufficient temporal proximity between her protected activity and her termination
to establish a causal connection because she was not terminated until six months
after she filed her second complaint with the EEOC. The court further found that
Drake-Sims could not show that her termination was in retaliation for filing the
present lawsuit because Brawner was unaware of the lawsuit at the time he made
the decision to terminate her.
The district court entered summary judgment on all of Drake-Sims’ claims,
dismissed the case with prejudice, and ordered each party to bear its own costs.
Drake-Sims now appeals the district court’s grant of summary judgment, and BCF
cross-appeals the court’s order to the extent it requires BCF to pay its own
7
Drake-Sims does not challenge this finding in her brief and thus has abandoned this
issue on appeal. See Greenbriar, 881 F.2d at 1573 n.6.
15
litigation costs.
II. DISCUSSION
We review de novo a district court’s grant of summary judgment, applying
the same legal standards used by the district court. See Galvez v. Bruce, 552 F.3d
1238, 1241 (11th Cir. 2008). Summary judgment is appropriate only when the
evidence, considered in the light most favorable to the nonmavant, presents no
genuine issues of material fact and compels judgment as a matter of law. Fed. R.
Civ. P. 56(c); Swisher Int’l., Inc. v. Schafer, 550 F.3d 1046, 1050 (11th Cir. 2008).
“A mere scintilla of evidence supporting the opposing party’s position will not
suffice; there must be enough of a showing that the jury could reasonably find for
that party.” Brooks v. County Comm’n of Jefferson County, Ala., 446 F.3d 1160,
1162 (11th Cir. 2006) (quotation marks and citation omitted).
Title VII makes it unlawful for an employer “to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)(1). In an employment discrimination case where the plaintiff
relies on circumstantial evidence, we apply the burden-shifting framework of
McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). See
16
Crawford v. Carroll, 529 F.3d 961, 975-76 (11th Cir. 2008). Under this
framework, the plaintiff carries the initial burden of establishing a prima facie case
of discrimination. See id. at 976. If the plaintiff satisfies the elements of a prima
facie case, the burden then shifts to the defendant to offer a legitimate, non-
discriminatory reason for the adverse employment action. See id. If the defendant
is able to do so, the burden shifts back to the plaintiff to show that this reason is a
mere pretext for unlawful discrimination. Id. “The inquiry into pretext requires
the court to determine, in view of all the evidence, whether the plaintiff has cast
sufficient doubt on the defendant’s proffered nondiscriminatory reasons to permit a
reasonable factfinder to conclude that the employer’s proffered legitimate reasons
were not what actually motivated its conduct.” Id. (quotation marks and citation
omitted). The ultimate burden of persuasion with respect to whether “the
defendant intentionally discriminated against the plaintiff remains at all times with
the plaintiff.” Springer v. Convergys Customer Mgmt. Group, Inc., 509 F.3d 1344,
1347 (11th Cir. 2007) (per curiam).
A. Disparate Pay
In order to establish a prima facie case of disparate pay, a plaintiff must
show that “she occupies a position similar to that of a higher paid employee who is
not a member of her protected class.” Crawford, 529 F.3d at 974-75 (citing Meeks
17
v. Computer Assocs. Int’l, 15 F.3d 1013, 1019 (11th Cir.1994)). The employee
whom the plaintiff identifies as a comparator “must be similarly situated in all
relevant respects.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir.
2004) (quotation marks and citation omitted) (emphasis added). We have held this
to mean that “[t]he comparator must be nearly identical to the plaintiff.” Id.
Drake-Sims has failed to establish a prima facie case of disparate pay
because none of the three possible comparators whom she has identified – Bardin,
Kearby, or Yates – is similarly situated to her. Bardin and Kearby both had been
hired from other companies and had demanded higher salaries as a condition of
leaving their previous employers, and Yates had been employed as a store manager
whereas Drake-Sims worked as an assistant manager. The district court thus
properly granted summary judgment with respect to Drake-Sims’ disparate pay
claim.
B. Failure to Promote
A plaintiff may establish a prima facie case of discrimination based on an
employer’s failure to promote her by showing that: (1) she is a member of a
protected class; (2) she is qualified for and applied for the position; (3) she was
rejected despite her qualifications; and (4) other equally or less qualified
employees who were not members of the protected class were promoted. See
18
Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 (11th Cir. 2005) (per
curiam). Assuming the plaintiff satisfies these elements and the employer asserts a
legitimate, non-discriminatory reason for failing to promote the plaintiff, the
plaintiff must then prove that the employer’s proffered reason is pretextual by
showing that the disparities between her qualifications and those of the successful
applicant are “of such weight and significance that no reasonable person, in the
exercise of impartial judgment, could have chosen the candidate selected over the
plaintiff.” Brooks, 446 F.3d at 1163 (quotation marks and citation omitted).
Even assuming Drake-Sims has established a prima facie case of
discrimination, her claim nevertheless fails because BCF has offered a legitimate,
non-discriminatory reason for its decision not to promote her to store manager of
either the Crestwood or Hoover stores. While both of the individuals whom BCF
hired to fill the vacant store manager positions, McGee and Cox, were experienced
candidates who had previously served as store managers with other companies,
Drake-Sims had only temporarily served as an acting store manager for BCF.
Further, the record is clear that BCF officials had serious concerns about Drake-
Sims’ performance during her service in that capacity. Moreover, Drake-Sims has
presented no evidence that BCF’s proffered reasons were pretextual. Although she
asserts that BCF should have given more weight to her years of experience with the
19
company, she has not shown that no reasonable person could have selected McGee
or Cox instead of her. The district court thus did not err in granting summary
judgment with respect to Drake-Sims’ failure to promote claim.
C. Retaliation
In order to make out a prima facie case of retaliation, a plaintiff must show
that: “(1) she engaged in an activity protected under Title VII; (2) she suffered an
adverse employment action; and (3) there was a causal connection between the
protected activity and the adverse employment action.” Crawford, 529 F.3d at 970.
To establish the requisite causal connection, “the plaintiff must prove that the
protected activity and the adverse action are not completely unrelated.” Davis v.
Coca-Cola Bottling Co. Consol., 516 F.3d 955, 978 n.52 (11th Cir. 2008)
(quotation marks and citation omitted). The plaintiff may satisfy this burden by
showing close temporal proximity between her protected activity and the adverse
employment action. See Thomas v. Cooper Lighting, 506 F.3d 1361, 1364 (11th
Cir. 2007) (per curiam). In the absence of other evidence tending to show
causation, temporal proximity must be “very close.” Id. (quotation marks and
citation omitted). Temporal proximity alone will not suffice to establish a causal
connection “where there is unrebutted evidence that the decision maker did not
have knowledge that the employee engaged in protected conduct.” Brungart v.
20
BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000); see Silvera v.
Orange County Sch. Bd., 244 F.3d 1253, 1262 (11th Cir. 2001) (“Discrimination is
about actual knowledge, and real intent, not constructive knowledge and assumed
intent.”).
1. Termination
Drake-Sims was terminated approximately six months after she filed her
second EEOC charge of discrimination. We have held that a three- to four-month
period between the protected activity and the adverse employment action is not
enough to show “very close” temporal proximity. See Thomas, 506 F.3d at 1364.
Because Drake-Sims has failed to present any other evidence tending to establish
causation and there was a “substantial delay” between the protected activity and
the adverse action, her retaliation claim fails as a matter of law. Id. Further, while
Drake-Sims was terminated just one week following the filing of her
discrimination lawsuit, she has failed to rebut Brawner’s testimony that he was
unaware of her lawsuit at the time he made the decision to terminate her. Although
other BCF officials may have been aware of the lawsuit, their knowledge may not
be imputed to Brawner. See Silvera, 244 F.3d at 1262.
2. Negative Performance Reviews
Drake-Sims likewise has failed to satisfy her burden of demonstrating a
21
causal connection between her protected activities and her negative performance
reviews. She received a negative review from Lange in March 2005, a year after
she had filed her first EEOC claim, and received a negative review by McGee in
January 2006, approximately eight months after she complained to Mascio that she
had been discriminated against in the selection process for the store manager
position at the Crestwood store and nearly two years after she filed her first EEOC
charge of discrimination. Neither of these reviews was sufficiently close in time to
Drake-Sims’ protected activity to prove a causal connection.
3. Failure to Promote
Finally, Drake-Sims has not established a causal connection between her
protected activity and BCF’s failure to promote her to the Hoover store manager
position. This position became vacant in November 2005, six months after she
sent her letter to Mascio, and had already been filled at the time she filed her 2006
EEOC charge. Our precedent makes clear that the temporal proximity between
Drake-Sims’ protected activity and BCF’s decision not to promote her is
insufficient to establish the requisite causation to support a prima facie case of
retaliation. See Thomas, 506 F.3d at 1364.
D. Award of Costs
We review for an abuse of discretion a district court’s decision to award or
22
not to award costs to the prevailing party. Mathews v. Crosby, 480 F.3d 1265,
1276 (11th Cir. 2007). Rule 54(d) of the Federal Rules of Civil Procedure
provides that litigation costs, other than attorneys’ fees, should be awarded to the
prevailing party “[u]nless a federal statute, these rules, or a court order provides
otherwise. Fed. R. Civ. P. 54(d). Rule 54(d) creates a “strong presumption” in
favor of awarding costs to the prevailing party. Mathews, 480 F.3d at 1276. “To
defeat the presumption and deny full costs, a district court must have and state a
sound basis for doing so.” Chapman v. AI Transp., 229 F.3d 1012, 1039 (11th Cir.
2000) (en banc). The district court failed to state its reasons for denying full costs
to BCF as the prevailing party and thus abused its discretion in ordering each party
to bear its own costs.
III. CONCLUSION
Drake-Sims appeals the district court’s grant of summary judgment in favor
of BCF. We AFFIRM summary judgment for BCF because Drake-Sims failed to
carry her burden of establishing either a prima facie case of discrimination or a
prima facie case of retaliation under Title VII. Because the district court abused
its discretion by failing to set forth its reasons for denying full costs to BCF, we
VACATE that portion of the district court’s order requiring each party to bear its
own costs and REMAND for further proceedings consistent with this opinion.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
23