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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-12540
Non-Argument Calendar
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D.C. Docket No. 0:11-cv-61971-JIC
STEVE JEFFERSON,
Plaintiff-Appellant,
versus
BURGER KING CORPORATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 29, 2013)
Before CARNES, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
Steve Jefferson, an African American proceeding pro se, appeals the district
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court’s grant of Burger King Corporation’s (“Burger King”) motion for summary
judgment, and the denial of his cross-motion for summary judgment, as to his
complaint alleging race discrimination and retaliation under Title VII, 28 U.S.C.
§ 2000e-2(a), 2000e-3(a), and 42 U.S.C. § 1981. Jefferson alleges that Burger
King discriminated against him by failing to promote him to positions as a
Multi-unit Manager and Company Business Manager (“CBM”), and that Burger
King discriminated and retaliated against him by transferring him to another
restaurant and terminating his employment.
On appeal, Jefferson argues that, under a disparate-treatment theory, he
presented sufficient evidence to establish a prima facie case of discriminatory
failure to promote and of pretext under the traditional McDonnell Douglas1
formulation. Additionally, he argues that his statistical evidence regarding the
racial composition of Burger King’s workforce established a prima facie case of
discriminatory failure to promote under both a disparate-treatment and
disparate-impact theory. Next, Jefferson argues that he presented sufficient
evidence to support a prima facie case of discriminatory and retaliatory transfer,
and that Burger King’s justification for the transfer—its effort to promote
sales—was pretext. Similarly, he argues that he presented sufficient evidence to
1
McDonnell Douglas v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
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support a prima facie case of discriminatory and retaliatory termination, and that
Burger King’s justification for his termination—written complaints against
him—was pretext.2 In support of his last argument, Jefferson argues that the
written complaints constituted inadmissible hearsay.
I.
We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the non-moving party. Brooks v. Cnty.
Comm’n of Jefferson Cnty., 446 F.3d 1160, 1161-62 (11th Cir. 2006). Summary
judgment is appropriate if the movant shows that no genuine issue of material fact
exists, and that he is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
The moving party bears the burden of demonstrating that no genuine issue of
material fact exists, see Brooks, 446 F.3d at 1162, although the non-moving party
must make a sufficient showing on each essential element of his case for which he
bears the burden of proof, see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.
Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986). A “mere scintilla” of evidence
supporting the opposing party’s position will not suffice. Brooks, 446 F.3d at
1162. We may affirm a grant of summary judgment on any basis supported by the
2
Jefferson also raises a “cat’s paw” theory of discrimination with regard to his
termination, but we do not consider this claim because he failed to first raise it with the district
court. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1331-35 (11th Cir. 2004).
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record. Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 960 (11th Cir. 2009).
Title VII prohibits employers from engaging in practices that discriminate
on the basis of race, and from discriminating against those who oppose any
practices that are unlawful under it. 42 U.S.C. §§ 2000e-2(a), 2000e-3(a).
Likewise, all persons in the United States have the same right to make and enforce
contracts. 42 U.S.C. § 1981(a). Section 1981 encompasses claims of retaliation.
CBOCS West, Inc. v. Humphries, 553 U.S. 442, 457, 128 S. Ct. 1951, 1961, 170 L.
Ed. 2d 864 (2008). We analyze Title VII and § 1981 claims using the same
evidentiary requirements and analytical framework. See Standard v. A.B.E.L.
Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). A plaintiff may prove
intentional discrimination through direct, circumstantial, or statistical evidence,
and we evaluate claims supported by circumstantial evidence under the McDonnell
Douglas burden-shifting framework. See Alvarez v. Royal Atl. Developers, Inc.,
610 F.3d 1253, 1264 (11th Cir. 2010).
Although the method of presenting a prima facie case is flexible, a plaintiff
may generally establish a prima facie case of racial discrimination by showing
that: (1) he is a member of a protected class; (2) he was qualified for his job; (3) he
was subjected to an adverse employment action; and (4) his employer treated
similarly-situated employees outside of the protected class more favorably. See id.
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In the failure-to-promote context, a plaintiff may demonstrate that he is a member
of a protected class and that he was qualified and applied for the promotion but
was rejected despite his qualifications in favor of an equally or less qualified
employee who was not a member of the protected class. Wilson v. B/E Aerospace,
Inc., 376 F.3d 1079, 1089 (11th Cir. 2004). In some instances, a plaintiff of a
protected class may prevail by showing that the position for which he applied
remained open after the employer rejected him despite his qualifications. See
Schoenfeld v. Babbitt, 168 F.3d 1257, 1267-68 (11th Cir. 1999). A plaintiff may
also establish a prima facie case of discriminatory discharge by demonstrating that
he was: (1) a member of a protected class; (2) qualified for his job; (3) terminated;
and (4) replaced by someone outside of the protected class. Cuddeback v. Fla. Bd.
of Educ., 381 F.3d 1230, 1235 (11th Cir. 2004). In order to make a valid
comparison, the plaintiff must show that he and the comparator are similarly
situated in all relevant respects. See Holifield v. Reno, 115 F.3d 1555, 1562 (11th
Cir. 1997).
A plaintiff may establish a prima facie case of racial discrimination by
presenting statistical proof of a pattern of discrimination, and substantial statistical
proof alone may suffice to meet the plaintiff’s prima facie burden. See Hawkins v.
Ceco Corp., 883 F.2d 977, 985 (11th Cir. 1989). Statistics without an analytical
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foundation, however, are “virtually meaningless.” Wilson, 376 F.3d at 1089
(quotation omitted). Thus, we have concluded that a plaintiff failed to establish a
prima facie case of discrimination through statistical evidence demonstrating that:
(1) from May 1999 through June 2002, the employer had only two female vice
presidents; and (2) since 1995, the employer chose only two female vice presidents
to fill a total of forty-four open positions. Id. at 1088-89. We noted that the
plaintiff’s statistical evidence did not provide any other relevant information, such
as the number of women who had expressed interest in the vice president
positions. Id. at 1089.
A plaintiff may establish a prima facie case of retaliation by demonstrating
that he engaged in a protected activity and suffered an adverse employment action,
and that the protected activity and adverse employment action were causally
related. Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002). In
order to demonstrate causation, the plaintiff must only show that the protected
activity and the adverse employment action are not completely unrelated. Higdon
v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004).
Once a plaintiff establishes a prima facie case of discrimination or
retaliation, the employer may rebut the resulting presumption of discrimination or
retaliation by articulating at least one legitimate, non-discriminatory or
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non-retaliatory reason for its action. See Alvarez, 610 F.3d at 1264. If the
employer articulates one or more such reasons, the plaintiff is afforded an
opportunity to show that the employer’s proffered reason is a pretext for
discrimination or retaliation. See id. As he has the ultimate burden of
demonstrating discrimination and/or retaliation, the plaintiff must meet the
employer’s reason head on and rebut it, and may not simply quarrel with the
wisdom of the reason. See Brooks, 446 F.3d at 1162-63. He may do this either
directly by persuading the court that a discriminatory or retaliatory reason more
likely than not motivated the employer, or indirectly by showing that the proffered
reason is unworthy of credence. See Jackson v. State of Ala. Tenure Comm’n, 405
F.3d 1276, 1289 (11th Cir. 2005). We must evaluate whether the plaintiff has
demonstrated such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the proffered reason so that a reasonable factfinder could
conclude that it is unworthy of credit. Id. To demonstrate pretext, the plaintiff
must demonstrate both that the proffered reason is false and that discrimination or
retaliation was the real reason for the adverse employment action. See Brooks,
446 F.3d at 1163.
In the end, our analysis is limited to whether a discriminatory and/or
retaliatory animus motivated the employer. See Alvarez, 610 F.3d at 1266. That
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an employer’s legitimate belief was mistaken is irrelevant so long as such animus
did not motivate the employer’s decisions. See id. at 1266-67; Elrod v. Sears,
Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (holding that our inquiry
was limited to whether the employer believed that the employee was guilty of
harassment, and whether that belief was the reason for the employee’s
termination). Conclusory allegations of discrimination or retaliation are, without
more, insufficient to carry the plaintiff’s burden. See Mayfield v. Patterson Pump
Co., 101 F.3d 1371, 1376 (11th Cir. 1996).
A plaintiff may also establish discrimination under a disparate-impact
theory, which does not require a showing of intentional discrimination. See
E.E.O.C. v. Joe’s Stone Crabs, Inc., 220 F.3d 1263, 1273 (11th Cir. 2000). The
disparate-impact theory prohibits neutral employment practices that, while
non-discriminatory on their face, result in an adverse and disproportionate impact
upon a protected group. Id. at 1274. Under such a theory, the plaintiff must
establish that (1) there is a significant statistical disparity between the proportion
of members of the protected class available in the labor pool and the proportion of
members of the protected class hired; (2) there is a specific, facially neutral
employment practice; and (3) a causal nexus exists between the employment
practice and the statistical disparity. Id.
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In support of a prima facie case, the plaintiff must offer statistical evidence
of a kind and degree that is sufficient to show that the practice in question caused
the exclusion of applicants for promotions because they belonged to a protected
group. Id. at 1274-75. It is insufficient for the plaintiff to simply show an
imbalance. See MacPherson v. Univ. of Montevallo, 922 F.2d 766, 771 (11th Cir.
1991). Rather, the plaintiff must compare the racial composition of persons in the
labor pool qualified for the position at issue with those persons actually holding
the position, in addition to demonstrating that the employment practice is
connected to the disparate impact. See Edwards v. Wallace Cmty. Coll., 49 F.3d
1517, 1520 (11th Cir. 1995). Thus, in order to adequately assess statistical data,
evidence must exist that identifies the basic qualifications for the relevant job, as
well as information on the relevant statistical pool of qualified applicants with
which to make the appropriate comparisons. See In re Employment
Discrimination Litig. Against the State of Ala., 198 F.3d 1305, 1312 (11th Cir.
1999).
If the plaintiff establishes a prima facie case of disparate impact, the burden
of production shifts to the defendant to establish that the challenged practice
serves a legitimate, non-discriminatory business objective. Joe’s Stone Crab, Inc.,
220 F.3d at 1275. Assuming that the employer meets its burden, the plaintiff may,
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nonetheless, still prevail by proving that an alternative, non-discriminatory
practice would have served the defendant’s stated objective equally well. Id.
II.
A.
Jefferson did not establish a prima facie case of discriminatory failure to
promote under the traditional McDonnell Douglas formulation because he did not
identify a proper comparator or establish that any position that he applied for
remained open after Burger King rejected his applications. The parties identified
fifteen individuals who held either the Multi-unit Manager position or the CBM
position. Jefferson, however, has not produced any evidence regarding these
individuals’ qualifications for either of these positions besides the conclusory
allegation that his track record of running multiple stores meant that he had
superior qualifications compared to eight non-African-American single-store
managers. Accordingly, Jefferson has failed to carry his burden of demonstrating
that Burger King rejected him for a promotion in favor of another individual who
was equally or less qualified. Cf. Wilson, 376 F.3d at 1089.3
3
Jefferson has also failed to establish that a CBM vacancy for which he applied
remained open beyond Burger King’s rejection of his applications. See Schoenfield, 168 F.3d at
1267. The action logs Jefferson submitted do not indicate the dates upon which the vacancies for
the relevant positions opened or closed, but instead they show only that Burger King was no
longer considering candidates on the date that it reviewed Jefferson’s applications.
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Likewise, although the United States Equal Employment Opportunity
Commission (“EEOC”) report Jefferson submitted shows a large percentage of
African Americans employed nationwide as service workers compared to other
positions, this statistical evidence is insufficient to establish a prima facie case of
discriminatory failure to promote under either a disparate-treatment or
disparate-impact theory. First, the EEOC report does not define the racial
composition of the pool of individuals who were qualified for the CBM position
nor the racial composition of the pool of individuals who applied for CBM (or
other higher-level management) positions. See Wilson, 376 F.3d at 1089 (“This
statistical evidence is not even probative of pretext because Wilson has not
provided any other relevant information, including the number of women who
expressed interest in vice president positions.”). Second, the EEOC report only
defines the racial composition of Burger King’s workforce for a single two-week
period in July 2008. Third, the EEOC report contains nationwide statistics, and
nothing in the report can be distilled regarding hiring practices in South Florida.
Given Jefferson’s failure to establish a basis for comparison, this statistical data is
“virtually meaningless.” Id.
With regard to the South Florida market, Jefferson alleges that, from 2005
to the time he was terminated, Burger King only had one African-American
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CBM.4 Again, Jefferson fails to offer any statistics for comparison, such as how
many African Americans applied for CBM positions in South Florida or what
percentage of these African-American applicants were qualified for these
positions.
The district court properly granted Burger King’s motion for summary
judgment as to Jefferson’s failure-to-promote claims.
B.
The district court also properly granted Burger King’s motion for summary
judgment as to Jefferson’s discriminatory and retaliatory transfer claims. Even
assuming a prima facie case of discriminatory and retaliatory transfer, Jefferson
did not present sufficient evidence to demonstrate that Burger King’s proffered
reason for Jefferson’s transfer was pretext. Burger King proffers that it transferred
Jefferson because it decided to place successful general managers at restaurants
that had high business potential but comparatively low sales. Jefferson argues that
this stated reason was pretext for discrimination because his new store did not in
fact have poor sales when he was transferred. But the evidence presented suggests
otherwise. First, Jefferson was not the only employee transferred to boost sales; in
4
After his termination, Burger King hired at least one additional African-American
CBM.
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fact, Burger King similarly transferred at least eleven non-African-American
employees. Second, Jefferson himself testified that, in his first forty-five days at
the new store, the store had the biggest increase in performance in the market.
Jefferson has failed to produce significant probative evidence that Burger King’s
proffered reason was mere pretext for discrimination. See Mayfield, 101 F.3d at
1376.
The district court properly granted Burger King’s motion for summary
judgment as to Jefferson’s discriminatory and retaliatory transfer claims.
C.
Finally, the district court properly granted Burger King’s motion for
summary judgment as to Jefferson’s discriminatory and retaliatory discharge
claims. Even assuming a prima facie case of discriminatory and retaliatory
discharge, Jefferson has failed to present sufficient evidence of pretext to survive
summary judgment on these claims. Burger King asserts that Jefferson was
terminated for creating a hostile work environment and presented thirteen
handwritten complaints from employees about Jefferson. These complaints cited,
inter alia, Jefferson’s use of abusive language to fellow employees, Jefferson’s
sexually inappropriate behavior, and Jefferson’s inappropriate behavior in front of
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customers. Jefferson claims that the employee complaints are hearsay.5 However,
these complaints are not hearsay because they were not offered for the truth of the
matter asserted; instead, they were offered only to establish that Burger King had
legitimate, non-discriminatory reasons for terminating Jefferson’s employment.
See Moore v. Sears, Roebuck & Co., 683 F.2d 1321, 1322-23 & n.4 (11th Cir.
1982). Jefferson has not presented sufficient evidence that Burger King’s reliance
on these written complaints was pretext for discrimination or retaliation.
The district court properly granted Burger King’s motion for summary
judgment as to Jefferson’s discriminatory and retaliatory discharge claims.
III.
After a careful and thorough review of the record and the parties’ briefs, we
affirm.
AFFIRMED.
5
Hearsay is any out-of-court statement that is offered to prove the truth of the matter
asserted in the statement. Fed. R. Evid. 801(c). Hearsay statements are generally inadmissible.
Fed. R. Evid. 802.
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