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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-12488
Non-Argument Calendar
________________________
D.C. Docket No. 3:09-cv-00863-HLA-JBT
PASCHAL ANYANWU,
llllllllllllllllllllllllllllllllllllllll Plaintiff - Counter
llllllllllllllllllllllllllllllllllllllll Defendant - Appellant,
versus
BRUMOS MOTOR CARS, INC.,
llllllllllllllllllllllllllllllllllllllll Defendant - Counter
llllllllllllllllllllllllllllllllllllllll Claimant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 13, 2012)
Before MARCUS, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
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Paschal Anyanwu, proceeding pro se, appeals the district court’s order
granting summary judgment in favor of his former employer, Brumos Motor Cars,
Inc. (Brumos), on his claims of racial discrimination and retaliatory discharge
under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. The district
court found that Brumos was entitled to judgment as a matter of law on the merits
and, in the alternative, that Anyanwu’s claims were time-barred. After careful
review, we affirm.1
I.
Anyanwu, a black male, began working as a car salesman for Brumos in
2004. In his complaint, Anyanwu alleged that he was not allowed to park his
Ferrari in the employee parking lot because of racial discrimination. Brumos
permitted him to park several other vehicles he owned in the employee lot, but not
his Ferrari. Beginning in December 2007, Brumos allowed him to park the Ferrari
on site, but only after he signed a form that released Brumos from any liability
associated with parking the car on company property. According to Anyanwu,
Brumos permitted white employees to park cars similar to the Ferrari on company
property without signing a release.
1
Because we affirm the district court’s order on the merits, we deny Brumos’s motion to
dismiss this appeal with prejudice as moot.
2
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Anyanwu also claimed he was terminated in retaliation for his opposition to
this racial discrimination. Brumos responded that it terminated him for violating
its harassment policy. Specifically, in November 2007, a Brumos employee filed a
sexual harassment complaint alleging that Anyanwu slapped her on the forehead
and pushed her. The Director of Human Resources at Brumos gave Anyanwu a
written warning that any future harassment would be grounds for termination.
And in January 2008, another Brumos employee filed a sexual harassment
complaint against Anyanwu alleging he made inappropriate comments and phone
calls. Brumos investigated the matter and fired Anyanwu on January 21, 2008.
Anyanwu denied the harassment allegations and claimed that Brumos’s
proffered reason for terminating him, violations of its harassment policy, was
pretextual. The district court granted summary judgment in favor of Brumos. The
court found that Anyanwu’s Title VII claims were time-barred and, in the
alternative, that Anyanwu could not establish a prima facie case of discrimination
nor rebut Brumos’s non-discriminatory reason for terminating him. The court
ruled that even if Anyanwu had properly advanced a 42 U.S.C. § 1981 claim, it
would fail on the merits. This is Anyanwu’s appeal.
II.
We review de novo the district court’s grant of summary judgment.
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Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010). Summary
judgment is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a).
“We draw all factual inferences in a light most favorable to the non-moving
party.” Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). “Pro se
pleadings are held to a less stringent standard . . . and will . . . be liberally
construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
A plaintiff cannot defeat summary judgment, however, by relying upon conclusory
assertions. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997). Rather,
“[a] party asserting that a fact . . . is genuinely disputed must support the assertion
by . . . citing to particular parts of materials in the record.” Fed. R. Civ. P.
56(c)(1); see also Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th
Cir. 1995) (en banc) (“There is no burden upon the district court to distill every
potential argument that could be made based upon the materials before it on
summary judgment.”). “[W]e may affirm the district court’s decision on any
adequate ground, even if it is other than the one on which the court actually
relied.” Parks v. City of Warner Robins, Ga., 43 F.3d 609, 613 (11th Cir. 1995).
III.
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A. Anyanwu’s Racial Discrimination Claim
Anyanwu argues that Brumos’s decisions to prohibit him from parking his
Ferrari in the employee parking lot and, later, to permit him to park the Ferrari
only if he signed a release of liability constituted racial discrimination under Title
VII. We disagree.
Under Title VII, it is unlawful for an employer to “discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race . . . .” 42 U.S.C. § 2000e-2(a). A
plaintiff may prove a Title VII claim either with direct or circumstantial evidence.
Hinson v. Clinch Cnty., Ga. Bd. of Educ., 231 F.3d 821, 827 (11th Cir. 2000).
“[O]nly the most blatant remarks, whose intent could be nothing other than to
discriminate on the basis of [race] will constitute direct evidence of
discrimination.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354,
1359 (11th Cir. 1999) (internal quotation marks omitted). And “remarks by non-
decisionmakers or remarks unrelated to the decisionmaking process itself are not
direct evidence of discrimination.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d
1318, 1330 (11th Cir. 1998).
The district court correctly found that Anyanwu had not presented any
direct evidence of discrimination. Although, according to Anyanwu, managers at
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Brumos regularly used racial epithets, Anyanwu did not point the district court to
any evidence indicating that these remarks were related to the decisonmaking
process for the parking prohibition. See id. And the other comments Anyanwu
references do not unambiguously refer to his race. Thus, he must rely on
circumstantial evidence to establish his disparate treatment claim.
In evaluating circumstantial evidence, we use the McDonnell Douglas
burden-shifting framework whereby the plaintiff must first establish a prima facie
case of discrimination. Crawford v. Carroll, 529 F.3d 961, 975-76 (11th Cir.
2008). To establish a prima facie case of racial discrimination on the basis of
disparate treatment, the plaintiff must show: (1) he is a member of a protected
class; (2) he was subjected to an adverse employment action; (3) his employer
treated similarly situated employees more favorably; and (4) he was qualified to do
the job. Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). To show an
adverse employment action, the plaintiff must show “a serious and material
change in the terms, conditions, or privileges of employment,” which would be
viewed as such “by a reasonable person in the circumstances.” Davis v. Town of
Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001). Once a plaintiff
establishes a prima facie case, the employer may articulate a legitimate, non-
discriminatory reason for its action. Brooks v. Cnty. Comm’n of Jefferson Cnty.,
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Ala., 446 F.3d 1160, 1162-63 (11th Cir. 2006). Then the plaintiff must offer
significantly probative evidence that the proffered reason is a pretext for
discrimination. Id.
The district court in this case correctly found that Brumos’s prohibition on
Anyanwu parking his Ferrari in the employee lot, and later permitting him to do so
only if he signed a release of liability, were not adverse employment actions, and
thus, Anyanwu had not made out a prima facie discrimination case. Anyanwu was
allowed to park multiple vehicles, including two Mercedes-Benz cars, in the
employee lot without signing a liability release. Anyanwu argues that Brumos’s
prohibition was material because driving a luxury car to work was a symbol of
success that affected his ability to sell luxury cars. But he does not point to any
evidence that the cars he could drive to work without signing a release of liability
would be so inadequate that a reasonable person in his position would consider the
parking prohibition a materially adverse employment action. Davis, 245 F.3d at
1239. And, of course, Anyanwu ultimately could still drive his Ferrari to work
after he signed the release.
Because Anyanwu has not shown that the parking prohibition or the
requirement that he sign a release of liability to park his Ferrari in the employee lot
were material adverse employment actions, he has failed to establish a prima facie
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case of racial discrimination under Title VII.
B. Anyanwu’s Retaliation Claim
Anyanwu alleges that his termination from Brumos was in retaliation for
complaining about racial discrimination and that Brumos’s proffered explanation
for his termination — violations of its harassment policy — was merely a pretext
for discrimination. As with his disparate treatment claim, Anyanwu did not point
to any competent direct evidence of discrimination. Therefore, the McDonnell
Douglas framework is appropriate for this claim.
Even assuming that Anyanwu established a prima facie case of retaliation,
he has not offered any evidence that Brumos’s reasons for termination were
pretextual. “[A] reason cannot be proved to be a pretext for discrimination unless
it is shown both that the reason was false, and that discrimination was the real
reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (internal
quotation marks omitted). “An employer who fires an employee under the
mistaken but honest impression that the employee violated a work rule is not liable
for discriminatory conduct.” Damon, 196 F.3d at 1363 n.3.
Here, two Brumos employees filed sexual harassment complaints, supported
by affidavits taken shortly thereafter, which Brumos investigated and found to be
credible. Anyanwu was warned after the first complaint, but before the second,
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that any future harassment would constitute grounds for termination. After the
investigation, Brumos concluded that Anyanwu’s conduct violated its harassment
policy and terminated him.
Anyanwu argues primarily that Brumos’s investigation into the complaints
was a sham and that he is innocent of the harassment charges, citing affidavits of
co-workers who stated that they did not think Anyanwu would have sexually
harassed anyone. But he provides no evidentiary support for his contention that
the investigation was a sham. And, even if he did not commit the harassment
charged, the record indicates that Brumos honestly investigated the harassment
and reasonably terminated him as a result. Anyanwu has not provided adequate,
probative evidence to the contrary.
Anyanwu also argues that the close temporal proximity between his
complaints about the parking prohibition and his termination suggests that
Brumos’s proffered explanation was pretextual. See Hurlbert v. St. Mary’s Health
Care Sys., 439 F.3d 1286, 1298 (11th Cir. 2006) (holding close temporal
proximity of two weeks between protected conduct and termination was “evidence
of pretext, though probably insufficient to establish pretext by itself”). Even if
Anyanwu engaged in statutorily protected activity by opposing racial
discrimination in mid-December 2007, which was just under a month before he
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was placed on administrative leave and ultimately fired, the second harassment
claim — which he had been warned could lead to his termination — came after his
complaints and only days before he was placed on leave. Thus, the temporal
proximity between Anyanwu’s complaints and his termination does not alone
suggest Brumos’s reasons were pretextual. Id. Rather, the proximity between the
harassment complaints and Anyanwu’s termination indicates that Brumos’s reason
was legitimate.
Because Anyanwu has not shown that Brumos’s legitimate, non-
discriminatory reason for terminating him was a pretext for discrimination, his
retaliation claim fails.
IV.
Anyanwu challenges the district court’s conclusion that he did not properly
raise a claim under 42 U.S.C. § 1981. Racial discrimination and retaliation claims
are cognizable under both Title VII and 42 U.S.C. § 1981, and they “have the
same requirements of proof and use the same analytical framework.” Standard,
161 F.3d at 1330. Thus, even assuming Anyanwu properly raised § 1981 claims,
they fail for the same reasons his Title VII claims fail.
V.
The district court properly granted summary judgment in favor of Brumos
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on Anyanwu’s discrimination and retaliation claims; accordingly, we affirm.2 We
deny Brumos’s motion to dismiss this appeal as moot.
AFFIRMED.
2
Because we affirm the grant of summary judgment on the merits of the Title VII claim,
we do not address the timeliness issue.
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