Ameer Siddiqui v. Netjets Aviation, Inc.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 31, 2019
• Docket: 18-13463
• Status: Unpublished

Opinion

Case: 18-13463 Date Filed: 05/31/2019 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-13463 Non-Argument Calendar ________________________

D.C. Docket No. 1:16-cv-23924-KMW

AMEER SIDDIQUI,

Plaintiff-Appellant,

versus

NETJETS AVIATION, INC.,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(May 31, 2019)

Before NEWSOM, BRANCH, and JULIE CARNES, Circuit Judges.

PER CURIAM: Case: 18-13463 Date Filed: 05/31/2019 Page: 2 of 12

Ameer Siddiqui appeals the district court’s grant of summary judgment in

favor of his former employer, NetJets Aviation, Inc. First, Siddiqui, a Muslim of

Pakistani descent, argues that the district court erred in granting summary

judgment for NetJets on his discrimination claims under 42 U.S.C. § 2000e-2(a)(1)

and 42 U.S.C. § 1981, based on its finding that he failed to show that NetJets’s

proffered reasons for placing him on administrative leave, unreasonably extending

that leave, and ultimately terminating him were pretexts for discrimination.

Second, Siddiqui argues that the district court erred in granting summary judgment

for NetJets on his retaliation claims under the same statutory provisions, based on

its finding that he did not demonstrate causation between any protected activity

and an adverse employment action. We agree with the district court—Siddiqui has

failed to demonstrate a genuine issue of material fact as to either discrimination or

retaliation; accordingly, summary judgment in NetJets’s favor is appropriate.

The facts are known to the parties; we repeat them here only as necessary to

aid in our analysis.

I

We review a grant of summary judgment de novo, viewing all facts in the

record in the light most favorable to the nonmovant and drawing all inferences in

his favor. Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1311 (11th Cir.

2001). Summary judgment is appropriate where “there is no genuine dispute as to

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any material fact.” Fed. R. Civ. P. 56(a). To overcome a motion for summary

judgment, the nonmoving party must present more than a scintilla of evidence

supporting his position—rather, “there must be enough of a showing that the jury

could reasonably find for that party.” Brooks v. Cty. Comm’n of Jefferson Cty.,

446 F.3d 1160, 1162 (11th Cir. 2006) (citation omitted).

Looking first to Siddiqui’s discrimination claims, Title VII prohibits an

employer from intentionally discriminating against an employee based on his race,

religion, or national origin. See 42 U.S.C. § 2000e-2(a)(1). Similarly, 42 U.S.C.

§ 1981 protects employees against racial discrimination. See 42 U.S.C. § 1981(a);

see also Standard v. A.B.E.L. Servs. Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).

Section 1981 and Title VII discrimination claims are analyzed under the same

framework. Standard, 161 F.3d at 1330.

When an employee’s discrimination claim is based on circumstantial

evidence, we generally use the burden-shifting framework established in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–05 (1973). Under this

framework, a plaintiff must present a prima facie case of discrimination. Alvarez v.

Royal Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). Then, the

burden shifts to the employer to articulate one or more legitimate,

nondiscriminatory reasons for its action. Id. If it does so, the burden shifts back to

the plaintiff to produce evidence that the employer’s proffered reasons are a pretext

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for discrimination. Id. A legitimate nondiscriminatory reason proffered by the

employer is not 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) (quotation marks omitted). “The court must,

considering all the evidence, ascertain whether the plaintiff has cast doubt on the

defendant’s proffered nondiscriminatory reasons sufficient to allow a reasonable

factfinder to determine that the defendant’s proffered legitimate reasons were not

what actually motivated its conduct.” Silvera v. Orange Cty. Sch. Bd., 244 F.3d

1253, 1258 (11th Cir. 2001) (quotation marks omitted). An employee must meet

his employer’s proffered reason “head on and rebut it.” Chapman v. AI Transp.,

229 F.3d 1012, 1030 (11th Cir. 2000) (en banc). When an employer asserts

misconduct by an employee as the legitimate reason for its action, the pretext

inquiry focuses on the employer’s beliefs and whether the employer was

dissatisfied with the employee for nondiscriminatory reasons, “even if mistakenly

or unfairly so.” Alvarez, 610 F.3d at 1266; see also Elrod v. Sears, Roebuck & Co.,

939 F.2d 1466, 1470 (11th Cir. 1991) (noting that inquiry is not whether the

employee was indeed guilty of misconduct but whether the employer in good faith

believed so, and whether this belief was the reason for the termination).

In Flowers v. Troup County, Georgia, School District, for example, we held

that the plaintiff had not offered sufficient evidence of pretext to allow a

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reasonable jury to infer that the school district’s true motivation for terminating

him was racially discriminatory. 803 F.3d 1327, 1337–38 (11th Cir. 2015). We

explained that the school district’s “ham-handed investigation and actions singling

out” the plaintiff could have led a reasonable jury to conclude that the

superintendent “had it in” for the plaintiff from the start. Id. at 1338. Yet because

the plaintiff offered no evidence “that the investigation was pretext of

discrimination on the basis of his race,” we held that “[e]ven if [the

superintendent’s] purported explanation for his decision to fire [the plaintiff] had

been a bald-faced lie,” the plaintiff’s claims still could not survive summary

judgment. Id. at 1339. “Put frankly,” we explained, “employers are free to fire

their employees for ‘a good reason, a bad reason, a reason based on erroneous

facts, or for no reason at all, as long as its action is not for a discriminatory

reason.’” Id. at 1338 (quoting Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d

1181, 1187 (11th Cir. 1984)).

To the extent that an employee seeks to show discrimination via disparate

treatment of comparators, those individuals must be “similarly situated in all

material respects.” Lewis v. City of Union City, 918 F.3d 1213, 1218 (11th Cir.

2019) (en banc). The analysis of comparators should be conducted at the prima

facia stage of McDonnell Douglas’s burden-shifting framework, rather than during

the pretext stage. Id. Nevertheless, “[e]vidence necessary and proper to support a

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plaintiff’s prima facie case may of course be used, later as it were, to demonstrate

that the defendant’s explanation for its conduct was pretextual.” Id. at 1223 n.9.

We must also keep in mind that differences in treatment of different comparators

by different decisionmakers can rarely be the basis for a viable discrimination

claim. Silvera, 244 F.3d at 1261 n.5.

Turning to Siddiqui’s case, even if we were to assume that he has shown that

NetJets’s reasons for placing him on administrative leave and extending his leave

were false, that does not necessarily entitle him to get past summary judgment.

See Alvarez, 610 F.3d at 1264.1 Like the school district in Flowers, NetJets’s

arguably “ham-handed investigation” and unreasonable delay in resolving the

situation could perhaps lead a jury to conclude that NetJets’s asserted reasons for

those problems—security concerns, negotiations, and changes in senior

management—were pretexts for something. See 803 F.3d at 1338. But Siddiqui

does not point to any evidence in the record, apart from his proffered comparators,

that would support an inference that the real reason for either the initial

investigation or the ensuing delay was discrimination on the basis of his race,

religion, or national origin. See id.; St. Mary’s Honor Ctr., 509 U.S. at 514–15.

1 Like the district court, we assume for argument’s sake that Siddiqui established a prima facie case, and thus we address any claims concerning comparators at the pretext stage. See Lewis, 918 F.3d at 1223 n.9. 6 Case: 18-13463 Date Filed: 05/31/2019 Page: 7 of 12

First, looking to President and Chief Operating Officer Bill Noe’s initial

decision to place Siddiqui on administrative leave, the question is not whether Noe

had good reasons for his decision but rather whether Noe had a nondiscriminatory

reason for his decision, even if that reason was mistaken or unfair. See Alvarez,

610 F.3d at 1266. In support of his contention that Noe’s decision was

discriminatory, Siddiqui points to Noe’s statement that he had reviewed Siddiqui’s

trips to Pakistan before making his decision. Noe testified, however, that whether

Siddiqui had traveled to Pakistan “didn’t have an impact” on his decision—he

reviewed the trips because they were among the information given him by pilots

who had complained about Siddiqui’s “extreme[ly] anti-Semit[ic]” comments and

other statements that had made them “uneasy” and “nervous.” We also note that,

to the extent that Siddiqui relies on his comparator evidence to provide an

inference of discrimination, Noe was not the decisionmaker in any of the

suspensions of Siddiqui’s proffered comparators. See Silvera, 244 F.3d at 1261 n.5

(“[D]ifferences in treatment by different . . . decision makers can seldom be the

basis for a viable claim of discrimination.”).

Second, as to the delay in scheduling Siddiqui’s crewmember review board

proceeding, which prolonged his administrative leave for three years, Siddiqui

does not allege—and the record does not reveal—who made that decision.

Siddiqui simply asserts that NetJets’s proffered reasons for the delay are

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disingenuous and that the decision was based instead on “rumors and smoke.” Br.

of Appellant at 18. NetJets responds that during that delay it was awaiting the

results of the FBI’s investigation of Siddiqui and that its management was then

embroiled in contentious negotiations with both the pilots’ and flight attendants’

unions. Although the evidence indicates that NetJets held crewmember review

board proceedings for Siddiqui’s comparators more quickly, Siddiqui has not

created a genuine issue of fact as to whether NetJets’s delay occurred in a

discriminatory manner, given the lack of evidence concerning who, if anyone,

affirmatively decided to delay Siddiqui’s proceeding. See Chapman, 229 F.3d at

1030. Therefore, Siddiqui has not rebutted NetJets’s explanation head-on. See id.

Third, as to his eventual termination, Siddiqui has not provided any evidence

to support a finding that NetJets’s proffered reason for firing him was false. See St.

Mary’s Honor Ctr., 509 U.S. at 515. Again, the question is not whether the

crewmember review board wrongly concluded that Siddiqui made inappropriate

remarks and lied about it. The question is whether Vice President Alan Bobo, who

did not participate in the proceeding, based his decision on a review of the

proceeding notes and, in good faith, believed that Siddiqui had done so. See Elrod,

939 F.2d at 1470; Alvarez, 610 F.3d at 1266. The undisputed evidence shows that,

in making the decision to terminate Siddiqui, Bobo relied on the review because he

“trust[s] the folks that are running the CRB investigations and that’s why they have

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to provide [him] a summary.” Because Siddiqui provides no evidence disputing

this explanation, he has not raised a genuine question of fact as to whether

NetJets’s proffered reason for his termination was pretext for discrimination. See

St. Mary’s Honor Ctr., 509 U.S. at 515.

Siddiqui’s argument that the district court failed to resolve all inferences in

his favor, improperly weighed the evidence, and made credibility determinations is

unavailing because he has not presented evidence to support a finding that

NetJets’s reasons for placing him on administrative leave, extending his leave

period, and eventually terminating him were pretextual and that discrimination was

the real reason. Accordingly, we affirm the entry of summary judgment in

NetJets’s favor on Siddiqui’s discrimination claims.

II

Title VII also prohibits an employer from retaliating against an employee for

opposing an unlawful employment practice. 42 U.S.C. § 2000e-3(a). And while

42 U.S.C. § 1981 does not expressly protect individuals from retaliation, both the

Supreme Court and this Court have interpreted § 1981 as prohibiting retaliation.

See CBOCS W., Inc. v. Humphries, 553 U.S. 442, 451–52 (2008); Andrews v.

Lakeshore Rehab. Hosp., 140 F.3d 1405, 1412–13 (11th Cir. 1998). As in the

discrimination context, Section 1981 and Title VII retaliation claims are analyzed

under the same framework. Standard, 161 F.3d at 1330.

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To make out a prima facie case of retaliation, a plaintiff must show that:

“(1) he engaged in a statutorily protected activity; (2) he suffered an adverse

employment action; and (3) he established a causal link between the protected

activity and the adverse action.” Brown v. Ala. Dep’t of Transp., 597 F.3d 1160,

1181 (11th Cir. 2010) (quoting Bryant v. Jones, 575 F.3d 1281, 1307–08 (11th Cir.

2009)). If the plaintiff does so, and the employer proffers a legitimate,

nondiscriminatory reason for its actions, then the plaintiff must show that the

employer’s reason is pretextual. Id. at 1181–82. Ultimately, the employee must

prove that “the desire to retaliate was the but-for cause of the challenged

employment action.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352

(2013).

For the purposes of a retaliation claim, a formal complaint of discrimination

constitutes statutorily protected conduct. Alvarez, 610 F.3d at 1268. On the other

hand, the Supreme Court has indicated that the receipt of a right-to-sue letter is not

a protected activity because the employee himself takes no part in the action. See

Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001). An adverse

employment action is one that might dissuade a reasonable worker from making a

discrimination charge. Crawford v. Carroll, 529 F.3d 961, 974 (11th Cir. 2008).

To demonstrate a causal connection, the plaintiff must show that (1) the

decisionmakers knew of his protected activity, and (2) the protected activity and

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adverse action weren’t “wholly unrelated.” Shannon v. Bellsouth Telecomms.,

Inc., 292 F.3d 712, 716 (11th Cir. 2002) (citation and quotations omitted). The

relatedness between the protected activity and adverse action may be demonstrated

by temporal proximity. Id. at 716–17. Absent other evidence of causation,

however, temporal proximity must be “very close.” Thomas v. Cooper Lighting,

Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (citation omitted). For example, we

have held that a three-month delay between a protected activity and adverse action

was, standing alone, insufficient to show a causal connection, id., but have found a

seven-week gap between a protected activity and adverse action sufficient, see

Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999).

Siddiqui first contends that NetJets unreasonably extended his administrative

leave in retaliation for the letter from his attorney alleging discrimination. He does

not, however, point to any particular decisionmaker who was aware of the letter

and, again, the record is unclear as to whether and by whom an affirmative

decision to extend the leave was made. See Shannon, 292 F.3d at 716. To the

extent that Siddiqui points to the timing of NetJets’s crewmember review board

proceeding as evidence of retaliation, it is undisputed that NetJets was in the

process of scheduling the proceeding before it received the letter from his attorney.

Because Siddiqui has not identified any decisionmakers who knew of his protected

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activity and had any involvement with extending his leave, he has not established a

causal connection between the letter and his leave period. Id.

As for any causal connection between his EEOC complaints and his eventual

termination, Siddiqui argues only that NetJets’s decision to terminate him on the

ninetieth day after the EEOC issued his right-to-sue letter shows that NetJets

waited to fire him until it believed it would be safe from a lawsuit. Receiving the

right-to-sue letter, however, was not protected activity because Siddiqui took no

part in the action. See Breeden, 532 U.S. at 273. And even if it were protected

activity, temporal proximity must be very close—absent other evidence—to

indicate causation. The three-month delay here, without more, is not enough. See

Thomas, 506 F.3d at 1364.

In sum, the district court did not err in granting NetJets summary judgment

on Siddiqui’s retaliation claims because Siddiqui did not present evidence creating

a genuine factual issue as to a causal connection between any protected activity

and adverse action.

AFFIRMED.