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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-14275 Non-Argument Calendar ________________________
D.C. Docket No. 2:19-cv-00661-ACA
JESSE LEE, III,
Plaintiff-Appellant,
versus
SAFE-DRY CARPET AND UPHOLSTERY,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(August 27, 2021)
Before WILSON, ROSENBAUM and JILL PRYOR, Circuit Judges.
PER CURIAM: USCA11 Case: 20-14275 Date Filed: 08/27/2021 Page: 2 of 15
Jesse Lee, III, appeals the district court’s order granting summary judgment
in favor of Safe-Dry Carpet and Upholstery on his Title VII and 42 U.S.C. § 1981
race discrimination claims. After careful review, we affirm.1
I. BACKGROUND
The district court’s summary judgment order thoroughly recited the facts.
We recount only those facts necessary to the disposition of Lee’s appeal,
construing the record in the light most favorable to Lee. See infra Part II. Safe-
Dry, a business with multiple locations across the southern United States, hired
Lee, who is African American, as a technician in its Birmingham, Alabama office.
Kevin Hendricks, who is white, was general manager of Safe-Dry’s Birmingham
office and made the decision to hire Lee.
For his second assignment, Safe-Dry asked Lee to clean Alvin Richardson’s
couch. Richardson requested a reservice when Lee failed to remove an odor from
his couch. Assistant manager Chad Donaldson approached Hendricks about
Richardson’s reservice request and initiated a conversation about terminating Lee.
Donaldson reported that Richardson had complained about Lee’s behavior, which
Richardson later denied. Hendricks decided to terminate Lee, and Donaldson
informed him of this decision. Donaldson, however, told Lee that Safe-Dry had to
let him go due to lack of work. In total, Lee worked for Safe-Dry for twelve days.
1 Lee’s motion to file a reply brief out of time is GRANTED. 2 USCA11 Case: 20-14275 Date Filed: 08/27/2021 Page: 3 of 15
The day after Lee was terminated, Safe-Dry dispatched Chris Ezekiel, one of
its white technicians, to reservice Richardson’s couch. Reservice requests were
common at Safe-Dry and, according to Hendricks, did not necessarily indicate poor
performance by the technician. Indeed, Richardson would go on to request
reservice two more times, and Ezekiel was not terminated as a result of the
requests.
Hendricks was responsible for interviewing, hiring, and firing technicians
for the Birmingham office beginning in about July 2017, when he served as Sales
Manager. He was promoted to General Manager in October 2017 and continued
those duties. Hendricks hired Lee later that month.
Safe-Dry routinely experienced high turnover among technicians, so
Hendricks was consistently hiring and terminating workers. Due to the high
turnover rate, the racial makeup of Birmingham technicians fluctuated. From
October 2017 until the time he learned that Lee had complained of racial
discrimination in 2019, half of the technicians Hendricks hired were African
American.
Looking specifically to the time of Lee’s brief tenure at Safe-Dry, turnover
resulted in a change in the racial makeup of technicians in the Birmingham office.
When Hendricks became General Manager in early October 2017, all five
technicians in the Birmingham office were African American. By late October,
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when Lee was hired, three of the four technicians in the Birmingham office were
African American. The three new technicians Hendricks hired after Lee all were
white. By the end of November 2017, four of the five technicians in the
Birmingham office were white.
After the Equal Employment Opportunity Commission issued him a right-
to-sue letter, Lee filed this action against Safe-Dry, alleging that he was terminated
due to racial discrimination. Safe-Dry moved for summary judgment, arguing that
it presented a legitimate, nondiscriminatory reason for terminating Lee and that it
did not fire Lee because of his race. The district court granted that motion. The
court concluded Safe-Dry provided a legitimate reason for Lee’s termination,
Hendricks’s honest belief in Donaldson’s account of Lee’s poor performance. The
district court further determined that Lee did not provide enough evidence to
support the inference that Safe-Dry’s reason for his termination was pretextual.
This is Lee’s appeal.
II. STANDARD OF REVIEW
We review de novo the district court’s grant of summary judgment, drawing
all inferences and reviewing all evidence in the light most favorable to the non-
moving party. Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). Summary
judgment is appropriate “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.
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R. Civ. P. 56(a). The moving party may meet this standard by demonstrating a
lack of evidence supporting the essential elements of the non-moving party’s
claims. Moton, 631 F.3d at 1341.
III. ANALYSIS
Lee argues that the district court erred in two respects by granting Safe-
Dry’s motion for summary judgment. First, he argues that the district court
erroneously concluded that Safe-Dry offered a legitimate, nondiscriminatory
reason for Lee’s termination when it concluded that Hendricks relied in good faith
on Donaldson’s information in making his decision. Second, Lee argues it was
error for the court to conclude that Safe-Dry’s reasons were not pretext for racial
discrimination. We disagree.
Title VII of the Civil Rights Act of 1964 makes it 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)(1). Section 1981 also provides a cause of action for
termination based on race. 42 U.S.C. § 1981. “Both of these statutes have the
same requirements of proof and use the same analytical framework, therefore we
shall explicitly address the Title VII claim with the understanding that the analysis
applies to the § 1981 claim as well.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d
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1318, 1330 (11th Cir. 1998), abrogated on other grounds by Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006).
Typically, we assess Title VII claims based on circumstantial evidence using
the framework set forth in McDonnell Douglas Corp. v. Green. 411 U.S. 792,
802–05 (1973). The McDonnell Douglas burden-shifting framework places the
burden of establishing a prima facie case of discrimination on the employee. See
id. at 802; Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767–68 (11th Cir.
2005) (describing elements of “the familiar McDonnell Douglas framework”). An
aggrieved employee may establish a prima facie case by showing that (1) he
belongs to a protected class, (2) he was subjected to an adverse employment action,
(3) his employer treated similarly situated employees outside his protected class
more favorably, and (4) he was qualified to do the job. Holifield v. Reno, 115 F.3d
1555, 1562 (11th Cir. 1997). If the employee successfully makes this showing—
and we assume Lee did, for purposes of this opinion—the burden shifts to the
employer “to articulate some legitimate, nondiscriminatory reason” for the adverse
action. McDonnell Douglas, 411 U.S. at 802. If an employer comes forward with
such a reason, the employee may nonetheless prevail if he shows that the
employer’s stated reason was a pretext for discriminatory animus. See id. at 804.
The McDonnell Douglas framework is not the only option for a plaintiff
relying on circumstantial evidence to withstand a motion for summary judgment.
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A triable issue of fact exists “if the record, viewed in the light most favorable to the
plaintiff, presents a convincing mosaic of circumstantial evidence” from which a
jury could infer that the decisionmaker intentionally discriminated against the
plaintiff. Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)
(internal quotation marks omitted).
With that background, we proceed to discuss Lee’s arguments, examining
them primarily through the lens of McConnell Douglas, because that is primarily
how Lee has framed them.
A. Safe-Dry’s legitimate, nondiscriminatory reason for terminating Lee
Lee argues that the district court erred in concluding that Safe-Dry offered a
legitimate, nondiscriminatory reason for his termination, namely, Hendricks’s
good-faith belief that Lee showed poor performance, work ethic, and attitude. We
are unpersuaded by his challenge.
The legitimate, nondiscriminatory reason offered by an employer for an
action need not be one a judge or juror would act on or approve. Schoenfeld v.
Babbitt, 168 F.3d 1257, 1269 (11th Cir. 1999). An employer must simply advance
an explanation for its action that is not discriminatory in nature. Id. An
employer’s burden to articulate a nondiscriminatory reason is a burden of
production, not of persuasion. Vessels, 408 F.3d at 769. This burden involves no
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credibility determination and is “exceedingly light.” Id. at 769–70 (internal
quotation marks omitted).
An employer’s honest, good-faith belief that an employee violated its
policies is a legitimate reason for termination even if the employer’s belief may
have been mistaken or wrong. See Elrod v. Sears, Roebuck & Co., 939 F.2d 1466,
1470 (11th Cir. 1991). We may not scrutinize the validity of an employer’s belief;
rather, we merely ask “whether this belief was the reason behind [the plaintiff’s]
discharge.” Id. If the decisionmaker “fired an employee because [he] honestly
believed that the employee had violated a company policy, even if [he] was
mistaken in such belief, the discharge is not ‘because of race.’” Smith v. Papp
Clinic, P.A., 808 F.2d 1449, 1452–53 (11th Cir. 1987). The same logic applies to
poor performance. See Moore v. Sears, Roebuck & Co., 683 F.2d 1321, 1323 n.4
(11th Cir. 1982) (“[F]or an employer to prevail, the jury need not determine that
the employer was correct in its assessment of the employee’s performance; it need
only determine that the defendant in good faith believed the plaintiff’s performance
to be unsatisfactory[.]”).
The district court correctly determined that Safe-Dry discharged its light
burden. The record reflects that Hendricks terminated Lee based on information
Donaldson provided to him. Donaldson reported to Hendricks that Lee failed to
service Richardson’s couch properly and showed a bad attitude on the job.
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Hendricks never spoke to Richardson or Lee directly. And, when Hendricks
terminated Lee, Hendricks was unaware that Richardson would eventually request
a third and then a fourth reservice visit. Hendricks “spoke with Chad [Donaldson],
and that was it.” Doc. 49-6 at 24. 2 Hendricks concluded, based on Donaldson’s
report, that Lee did poor quality work, had a bad work ethic, and showed a
negative attitude. Hendricks’s good faith belief in Donaldson’s account of Lee’s
performance, even if that account was mistaken, constitutes a legitimate,
nondiscriminatory reason for terminating Lee.
Lee resists this conclusion. He argues that Safe-Dry produced no actual
evidence of a legitimate reason because Hendricks admittedly had no personal
knowledge of the purported reasons for terminating him, Hendricks never observed
any behavior by Lee that warranted termination, and Donaldson provided no
testimony in this case. He also argues that Safe-Dry “offer[ed] no documents that
prove the articulated reason” for his termination. Appellant’s Br. at 22. Our
precedent does not require evidence that the employee actually engaged in conduct
like poor performance warranting termination, however; rather, it requires only
evidence of the decisionmaker’s good faith belief that the employee engaged in
such conduct. See Moore, 683 F.2d at 1323 n.4. Hendricks’s testimony supplied
2 “Doc.” numbers refer to the district court’s docket entries. 9 USCA11 Case: 20-14275 Date Filed: 08/27/2021 Page: 10 of 15
that evidence and satisfied Safe-Dry’s light burden to establish a legitimate reason
for his termination. 3 See Vessels, 408 F.3d at 769–70.
B. Lee’s failure to show pretext
Lee also argues that the district court erred in concluding that he failed to
show Safe-Dry’s reasons for his termination were pretext for racial discrimination.
To show pretext, a plaintiff must show “both that the [employer’s] reason was
false, and that discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 515 (1993) (emphasis in original). In asserting pretext, a plaintiff
cannot merely make conclusory allegations and assertions but must present
specific facts. Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2009).
Even assuming the record supports Lee’s contention that Safe-Dry did not
terminate him because Hendricks believed him to be a poor technician, Lee has
failed to satisfy his burden in demonstrating pretext because the record contains
insufficient evidence from which a finder of fact could infer that the real reason for
3 We also reject Lee’s contention that the district court erred in relying on Safe-Dry’s argument that Hendricks had an honest belief that the reasons for terminating Lee were true. Lee asserts that Safe-Dry raised this argument for the first time in its reply brief in support of summary judgment, and that by not permitting him to respond the district court deprived him of an opportunity to rebut Safe-Dry’s new argument. But Safe-Dry’s arguments were not new. In its motion for summary judgment, Safe-Dry acknowledged that Hendricks had no personal interaction with Lee and “d[id] not remember the specifics but relied upon information provided to him.” Doc. 44 at 5. Safe-Dry explained that Hendricks terminated Lee “based on information provided to him by a Safe-Dry employee regarding Mr. Lee’s lack of work quality, lack of work ethic[,] and his overall negative attitude as a technician.” Id. at 6. Although Safe-Dry did not use the words “honest belief” or “good faith belief” in its brief, it adequately conveyed that Lee’s termination was based on information Hendricks believed to be true but of which he had no firsthand knowledge. 10 USCA11 Case: 20-14275 Date Filed: 08/27/2021 Page: 11 of 15
his termination was because he is African American. See Flowers v. Troup
County, Ga., Sch. Dist., 803 F.3d 1327, 1337–38 (11th Cir. 2015); See Vessels, 408
F.3d at 771.
In Flowers, we granted that evidence contradicting an employer’s proffered
legitimate, nondiscriminatory reason “is highly suggestive of pretext” but
explained that the contradiction, alone, was insufficient to permit a plaintiff to
survive a motion for summary judgment. Flowers, 803 F.3d at 1339. “Allowing
the plaintiff to survive summary judgment would be inappropriate, for example, if
the record conclusively revealed some other, nondiscriminatory reason” for the
plaintiff’s termination. Id. (internal quotation marks omitted). Here, both Safe-
Dry’s proffered reason and the reason Lee was given at the time of his termination
were nondiscriminatory. So the existence of contradictory reasons for his
termination, alone, does not get him over the summary judgment hump. Nothing
else in the record gets Lee there.
In Flowers we explained that a plaintiff may provide evidence of pretext via
comparators “whose more-favorable treatment could support a reasonable jury’s
inference that the [defendant’s] decision to fire [the plaintiff] was pretext for race
discrimination.” Id. But the Court cautioned that the comparator’s alleged
conduct must be “nearly identical to the plaintiff’s” to prevent courts from second-
guessing employers’ decisions. Id. at 1340 (internal quotation marks omitted).
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Lee argues that he can demonstrate that Safe-Dry acted in a racially
discriminatory fashion for three reasons. First, Lee suggests that Ezekiel is a valid
comparator because he is a white technician who was not terminated after failing to
clean Richardson’s couch. Second, Lee states that Ezekiel was assigned more jobs
than Lee even though they started around the same time. Third, Lee alleges that
changes to the racial makeup of the technicians in the Birmingham office under
Hendricks’s management show a pattern and practice of discrimination. These
arguments fail.
Lee contends that Safe-Dry’s treatment of Ezekiel, a white technician, shows
disparate treatment by race. Ezekiel also serviced Richardson’s couch, only days
after Lee. Ezekiel ultimately serviced the couch three times and still failed to
remove the odor. However, as Flowers indicates, Ezekiel is not sufficiently similar
in position to Lee to demonstrate disparate treatment by race. The crux of Safe-
Dry’s argument is not that Lee actually performed poorly but that Hendricks
believed he did based on Donaldson’s comments. There is no indication in the
record that Donaldson also complained to Hendricks about Ezekiel’s performance.
This renders them dissimilar for purposes of a comparator analysis, far from the
match demanded by Flowers. Further, at the time that Lee was terminated,
Hendricks did not know that the couch would prompt not just one, but additional
reservice requests, and ultimately prove impossible to clean. To use Ezekiel to
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assess Lee’s claim would be tantamount to “confusing apples with oranges.”
Flowers, 803 F.3d at 1340 (internal quotation marks omitted).
Second, Lee suggests that Safe-Dry assigned him fewer jobs on account of
his race. Lee indicates that Ezekiel, who was hired only one week before Lee, was
assigned 12 jobs to Lee’s three during their respective first weeks. Safe-Dry notes
that Lee’s truck was broken during part of the time that he was employed, limiting
the number of jobs he could complete. Under Flowers, Lee’s broken truck renders
him sufficiently dissimilar to Ezekiel to make the comparator analysis
inappropriate. Safe-Dry also points out in its records that the number of jobs
assigned to each technician routinely varies from week to week according to
factors such as location, size of job, and state of the technician’s vehicle. The
record does not suggest a larger pattern of allotting fewer jobs to African American
technicians as would be needed to show a location-wide practice of discrimination
in assignments.
Third, Lee proposes that changes to the aggregate number of African
American technicians in the Birmingham office under Hendricks’s supervision
demonstrate a pattern of racial discrimination against African American job
applicants and employees. He highlights the facts that earlier in the same month
that Lee was hired the Birmingham office employed only African American
technicians, but by the end of the month when Lee was terminated, the location
13 USCA11 Case: 20-14275 Date Filed: 08/27/2021 Page: 14 of 15
had transitioned to four white employees and only one African American
technician. Plus, he points out, the next three hires after Lee all were white.
Viewed in isolation, these statistics may seem suggestive of pretext. In view of
“all of the surrounding facts and circumstances,” however, Lee has not met his
burden. Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 340 (1977).
Turnover indisputably was high at Safe-Dry, and so fluctuations in the racial
makeup of technicians in a brief snapshot of time are of little probative value.
Looking at Hendricks’s tenure overall, there is no indication of racial disparity in
hiring. Moreover, Lee offered no information concerning the racial makeup of
Safe-Dry job applicants, so we cannot surmise whether the candidates whom
Hendricks selected evidenced a preference for white over African American hires.
Nor did Lee provide any evidence as to the circumstances of other African
American technicians leaving Safe-Dry, so we do not know whether Hendricks
was terminating them or they were leaving of their own accord. Given these
observations, we are unconvinced that the statistics in the record are suggestive of
pretext.
Lee has failed to demonstrate the existence of a genuine issue of material
fact as to whether Safe-Dry’s proffered reason for his termination was pretext for
racial discrimination.
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C. No Convincing Mosaic
A plaintiff “will always survive summary judgment if he presents
circumstantial evidence that creates a triable issue concerning the employer’s
discriminatory intent,” whether or not he satisfies the McDonnell Douglas
framework. Smith, 644 F.3d at 1328. Lee argues that “the evidence offered by
safe-Dry demonstrates a pattern over eight weeks in which their workforce in
Birmingham went from five African American technicians to only one” and posits
that Hendricks was the cause. Appellant Br. at 41. He asserts that this evidence,
plus “the wealth of additional evidence of pretext,” satisfies Smith’s “convincing
mosaic” standard. Id. at 42. For the same reasons we have articulated, however,
the record does not contain circumstantial evidence that creates a triable issue
regarding whether Safe-Dry actually terminated Lee because of his race.
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s order granting
summary judgment in favor of Safe-Dry.
AFFIRMED.