Case: 11-14283 Date Filed: 09/11/2012 Page: 1 of 10
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14283
Non-Argument Calendar
________________________
D.C. Docket No. 1:10-cv-22741-UU
WENDELL BECKLES,
individually,
Plaintiff-Appellant,
versus
FEDERAL EXPRESS CORPORATION,
Claimant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 11, 2012)
Before MARCUS, FAY and ANDERSON, Circuit Judges.
PER CURIAM:
Case: 11-14283 Date Filed: 09/11/2012 Page: 2 of 10
Wendell Beckles, a black male, appeals the district court’s grant of defendant
Federal Express Corporation’s (“FedEx”) motion for summary judgment as to
Beckles’s complaint alleging race discrimination, raised pursuant to Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., and 42 U.S.C. §
1981. Beckles, a former Managing Director for FedEx Air Ground and Freight
Services (“AGFS”) South, asserts that the district court improperly granted summary
judgment on his Title VII and § 1981 race discrimination claims because: (1) he
established a prima facie case of discrimination by showing that white FedEx
Managing Directors Jackie Nichols and Flynn Wallace were valid comparators; (2)
the district court abused its discretion when it excluded past racial comments made
by FedEx Senior Vice President Michael Pigors because they showed that FedEx’s
legitimate, nondiscriminatory reason for terminating him -- that he failed to detect and
possibly knew about mileage reimbursement fraud perpetrated by two of his
subordinates -- was a pretext for race discrimination; and (3) even without Pigors’s
past comments, he established that FedEx’s nondiscriminatory reason for his
termination was pretextual. After thorough review, we affirm.1
1
Nevertheless, we GRANT Beckles's motion for permission to file an out-of-time reply
brief.
2
Case: 11-14283 Date Filed: 09/11/2012 Page: 3 of 10
We review de novo a district court’s grant of summary judgment. Vessels v.
Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005). We view all evidence,
and draw all reasonable inferences, in favor of the non-moving party. Id. We review
the district court’s evidentiary decisions for abuse of discretion. Chapman v. AI
Transp., 229 F.3d 1012, 1023 (11th Cir. 2000).
Title VII prohibits an employer from discharging an employee, or otherwise
discriminating against him with respect to his employment, on the basis of race. See
42 U.S.C. § 2000e-2(a)(1). Section 1981 provides that “[a]ll persons . . . shall have
the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.”
42 U.S.C. § 1981(a). Furthermore, the elements of a race discrimination claim under
§ 1981 are the same as Title VII disparate treatment claims in the employment
context. Shields v. Fort James Corp., 305 F.3d 1280, 1282 (11th Cir. 2002).
In reviewing discrimination claims supported by circumstantial evidence,
courts may use the three-step burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). First, the plaintiff must make
out a prima facie case of employment discrimination. Vessels, 408 F.3d at 767.
Second, the burden of production shifts to the employer to provide a legitimate,
nondiscriminatory reason for its employment action. Id. at 767-68. Third, the
plaintiff must then show that the employer’s reason was false and a pretext for race
3
Case: 11-14283 Date Filed: 09/11/2012 Page: 4 of 10
discrimination. Id. at 768. While district courts may analyze employment
discrimination claims under the McDonnell Douglas framework, a plaintiff need not
establish the McDonnell Douglas elements in order to survive summary judgment.
Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). The plaintiff
will survive summary judgment where he presents “a convincing mosaic of
circumstantial evidence that would allow a jury to infer intentional discrimination by
the decisionmaker.” Id. (quotations omitted).
In order to establish a prima facie case of discriminatory discharge, the plaintiff
must show that he (1) was a member of a protected class, (2) was qualified for the job,
(3) suffered an adverse employment action, and (4) was discharged for misconduct
that was nearly identical to that engaged in by employees outside of his protected
class who were not discharged. Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d
1181, 1185 (11th Cir. 1984). In addressing whether comparator employees were
similarly situated to the plaintiff, we consider whether the comparators were involved
in, or accused of, the same or similar conduct and disciplined differently. Maniccia
v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). The quality and quantity of the
misconduct must be nearly identical in order to prevent courts from second-guessing
reasonable employer decisions, “and confusing apples with oranges.” Id.
4
Case: 11-14283 Date Filed: 09/11/2012 Page: 5 of 10
Here, the district court did not err when it determined that Beckles failed to
establish a prima facie case of discriminatory termination because he did not establish
valid comparators. As for Nichols, Beckles did not establish that the quantity or
quality of Beckles’s misconduct was nearly identical to Nichols’s misconduct.
Reggie Owens, Vice-President (“VP”) of AGFS South, said that he terminated
Beckles for his “absolute failure to be responsible with the finances of the company”
by allowing gross fraud to happen in his chain-of-command. Beckles’s subordinates
perpetrated approximately $180,000 in mileage reimbursement fraud, while under
Nichols FedEx was defrauded of only $18,378 (and it is not even clear whether it was
committed by Nichols’s “subordinates”). Indeed, when asked why he did not also
terminate Nichols, Owens said that Nichols’s actions were “not as egregious as
hundreds of thousands of dollars being defrauded from the company.” Additionally,
the quality of Beckles’s and Nichols’s respective misconduct differed -- Beckles’s
misconduct was the complete abandonment of his acknowledged responsibility to
audit and approve mileage reimbursement requests, which he completely delegated
to his administrative assistant, whereas Nichols’s misconduct involved giving his
password to an employee on one occasion for a purpose other than mileage approval.
Nor did Beckles establish that Wallace was a valid comparator because, among
other things, the fraud committed by their subordinates differed. Wallace’s
5
Case: 11-14283 Date Filed: 09/11/2012 Page: 6 of 10
subordinate falsified check requests, forged Wallace’s signature, and then submitted
those false check requests directly to accounting. Beckles’s subordinate, on the other
hand, submitted her fraudulent mileage reimbursement requests directly to Beckles,
who approved them via his delegation to his administrative assistant. Moreover,
Wallace only directly approved $288.77 in fraudulent check requests, making the
scale of the fraud for which he was responsible significantly less than the massive
amounts of mileage reimbursement fraud that Beckles approved through his
administrative assistant.
Finally, Nichols and Wallace differed from Beckles in one further significant
respect -- Beckles’s subordinate claimed that Beckles knew about, and approved of,
her mileage reimbursement fraud. Beckles’s Warning Letter alleged that he may have
known of the fraud, and Senior VP Pigors explicitly said that he believed Beckles had
been complicit in the subordinate’s fraud. In contrast, there is nothing in the record
implicating Wallace or Nichols in the fraud. Accordingly, Beckles did not establish
valid comparators, and the district court did not err when it determined that Beckles
failed to establish a prima facie case of employment discrimination.2
2
Moreover, Beckles’s reliance on a Declaration by Gwen Rouzan, Managing Director of
Human Relations (“HR”) for AGFS South, for the proposition that FedEx admitted to the
comparability of Nichols and Wallace is misplaced. Among other things, any statements by
Rouzan regarded FedEx’s internal attempts to comply with Title VII and Beckles has provided
no authority for why any comparator determination she made should have been binding on the
district court.
6
Case: 11-14283 Date Filed: 09/11/2012 Page: 7 of 10
We also are unpersuaded by Beckles’s claim that he has shown pretext. A
plaintiff may show pretext by pointing to the weaknesses, implausibilities,
inconsistencies, and contradictions in the employer’s rationale. Holland v. Gee, 677
F.3d 1047, 1055-56 (11th Cir. 2012). The plaintiff must show that the evidence,
when viewed as a whole, creates a reasonable inference that the employer engaged
in discrimination. Lockheed-Martin, 644 F.3d at 1326. While a comment unrelated
to the termination decision may contribute to a circumstantial case for pretext, it will
usually not be sufficient absent some additional evidence supporting a finding of
pretext. Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1229 (11th Cir.
2002). . The plaintiff's assertion that his supervisor was "out to get him" does not
establish pretext for race discrimination. See Kelliher v. Veneman, 313 F.3d 1270,
1276 n.8 (11th Cir. 2002). We do not sit as a super-personnel department, and we do
not review the wisdom of an employer’s business decisions, no matter how mistaken,
as long as the action was not for a prohibited discriminatory reason. Alvarez v. Royal
Atl. Developers, Inc., 610 F.3d 1253, 1266-67 (11th Cir. 2010).
Evidence of a “wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in accordance
with the character.” Fed.R.Evid. 404(b)(1). Furthermore, “[t]he [district] court may
7
Case: 11-14283 Date Filed: 09/11/2012 Page: 8 of 10
exclude relevant evidence if its probative value is substantially outweighed by a
danger of . . . unfair prejudice.” Fed.R.Evid. 403.
Here, the district court did not abuse its discretion when it refused to consider
certain remarks to show pretext. Specifically, the district court deemed inadmissible
the decade-old deposition testimony of a former FedEx VP, Michael Snyder, in which
he alleged that, in the mid-1990s, Pigors had referred derogatorily to black persons.
While Beckles argues that we allowed similar evidence to support a showing of
pretext in Ross v. Rhodes Furniture, Inc., 146 F.3d 1286 (11th Cir. 1998), he misses
that, under Rule 403, the relevant inquiry is not whether the evidence is probative of
pretext, but whether the probative nature of the evidence was substantially
outweighed by the potential for unfair prejudice. See Fed.R.Evid. 403. Because
Beckles argues only that the evidence here was probative, he has not shown that the
district court abused its discretion when it excluded Pigors alleged remarks as unduly
prejudicial. This is especially true given the unrelatedness of the comments to
Beckles’s termination and their removal from his termination by approximately 15
years.3
3
Indeed, we have held that the kinds of comments in Ross, when made in an unrelated
context, were insufficient to create an inference of pretext when standing alone. See Scott, 295
F.3d at 1229-30 (citing Rojas v. Florida, 285 F.3d 1339, 1343 (11th Cir. 2002)).
8
Case: 11-14283 Date Filed: 09/11/2012 Page: 9 of 10
In addition, Beckles’s other circumstantial evidence did not create a convincing
mosaic sufficient to show that the real reason for his termination was his race (rather
than because of FedEx’s stated reliance on his leadership failure). Beckles’s
additional circumstantial evidence of pretext consists of: (1) a management meeting
where Pigors directed management to vote for John McCain, rather than Barack
Obama; (2) Rouzan’s statement that Pigors decided to terminate Beckles when he
heard of the allegations of fraud leveled against Beckles’s subordinate; and (3)
Rouzan’s statement that she had worked on previous cases in which Pigors was
accused of making racial comments.
For starters, the management meeting provides no basis to show pretext
because Pigors did not urge management to vote for McCain because of McCain’s
race. Second, even if Pigors decided to terminate Beckles the moment he heard the
allegation that Beckles’s subordinates had committed fraud, such a conclusion, while
perhaps rash and unwise, is not prohibited by Title VII. See Alvarez, 610 F.3d at
1266-67. The mere fact that Pigors sought to oust Beckles does not show that he
targeted Beckles because of his race. See Kelliher, 313 F.3d at 1276 n.8. Finally,
Rouzan’s statement that unnamed others had accused Pigors of making racial remarks
at some point in the past, which she identified as the “Satchell case,” was so vague
and unrelated to Beckles’s termination that it could not have created the requisite
9
Case: 11-14283 Date Filed: 09/11/2012 Page: 10 of 10
“mosaic of circumstantial evidence” to establish pretext. See Lockheed-Martin, 644
F.3d at 1328. Thus, even if Beckles showed that FedEx’s reasons for terminating him
were false, he did not show that its real reason was racial discrimination.
Accordingly, Beckles did not show that he established pretext, and we affirm the
district court’s grant of summary judgment to FedEx.
AFFIRMED.
10