Nate Stimson v. Stryker Sales Corporation

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 30, 2020
• Docket: 19-14997
• Status: Unpublished

Opinion

USCA11 Case: 19-14997 Date Filed: 11/30/2020 Page: 1 of 12

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-14997 Non-Argument Calendar ________________________

D.C. Docket No. 1:17-cv-00872-JPB

NATE STIMSON,

Plaintiff-Appellant,

versus

STRYKER SALES CORPORATION,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Northern District of Georgia ________________________

(November 30, 2020)

Before WILSON, NEWSOM, and ANDERSON, Circuit Judges.

PER CURIAM: USCA11 Case: 19-14997 Date Filed: 11/30/2020 Page: 2 of 12

Nate Stimson appeals the district court’s grant of summary judgment in

favor of his former employer, Stryker Sales Corporation (Stryker). Because we

write for the parties, we assume familiarity with the facts and set out only those

necessary for the resolution of this appeal. Stimson worked for Stryker for twelve

years until he was terminated in March of 2016. After his termination, Stimson

brought an employment action against Stryker claiming (1) retaliation under Title

VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. §§ 2000e-2(a),

2000e-3(a); (2) age discrimination under the Age Discrimination in Employment

Act (ADEA), 29 U.S.C. § 623(a)(1); and (3) defamation.1

Stryker manufactures and sells medical equipment, so Stryker employees

often go to hospitals to sell and service its products. Stimson claims that he was

retaliated against for reporting that another Stryker employee—James Runyan—

sexually harassed a nurse who was employed by a hospital the two visited for

work. Stimson also claims that Stryker discriminated against him based on his age,

because he, a forty-year-old, was fired after he was reported for misconduct, but

Runyan, a similarly situated thirty-year-old, was not fired in relation to the sexual

harassment allegations against him.

A magistrate judge initially reviewed this case and issued a report and

recommendation (R&R) regarding the parties’ arguments. The district court

1 The defamation claim is not before us on appeal. 2 USCA11 Case: 19-14997 Date Filed: 11/30/2020 Page: 3 of 12

accepted the R&R in part, granting summary judgment on behalf of Stryker as to

both the Title VII and ADEA claims. The district court found that Stimson did not

establish a prima facie case for retaliation because he did not engage in protected

activity under Title VII. The court granted summary judgment on the ADEA claim

because Stimson and his proposed comparator, Runyan, were not similarly situated

in all material respects. The court also sanctioned Stimson because it found that he

provided false testimony in a deposition and disclosed relevant documents after the

close of discovery. The court ordered Stimson to pay Stryker’s attorney’s fees for

litigating its motion for sanctions. Stimson appeals these findings. We address

each issue in turn.

STANDARD OF REVIEW

We review a grant of summary judgment de novo. Kernel Records Oy v.

Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012). Summary judgment is appropriate

if there is no genuine issue of material fact and the movant is entitled to judgment

as a matter of law. Id. We draw all justifiable inferences in favor of the

non-moving party. Id. at 1301. We do not make credibility determinations or

weigh evidence at the summary judgment stage. Frederick v. Sprint/United Mgmt.

Co., 246 F.3d 1305, 1311 (11th Cir. 2001).

We review sanction orders for an abuse of discretion. Purchasing Power,

LLC v. Bluestem Brands, Inc., 851 F.3d 1218, 1222 (11th Cir. 2017). The district

3 USCA11 Case: 19-14997 Date Filed: 11/30/2020 Page: 4 of 12

court abuses its discretion when it applies an incorrect legal standard, applies the

standard in an unreasonable or incorrect manner, or ignores or misunderstands the

relevant evidence. Id.

I.

A Title VII retaliation claim based on circumstantial evidence is analyzed

under the McDonnell Douglas burden-shifting framework. 2 Goldsmith v. City of

Atmore, 996 F.2d 1155, 1162–63 (11th Cir. 1993). To establish a prima facie case

of Title VII retaliation, the plaintiff must show that: (1) he engaged in statutorily

protected expression; (2) he suffered an adverse employment action; and (3) there

is a causal relationship between the two events. Thomas v. Cooper Lighting, Inc.,

506 F.3d 1361, 1363 (11th Cir. 2007).

Title VII protects an employee against retaliation by his or her employer

when the employee has (a) opposed any “unlawful employment practice” under

Title VII or (b) participated in any manner in any investigation, proceeding, or

hearing under Title VII. 42 U.S.C. § 2000e-3(a); EEOC v. Total Sys. Servs., Inc.,

221 F.3d 1171, 1174 (11th Cir. 2000). An “unlawful employment practice” under

Title VII includes an employer’s termination of or discrimination against “any

individual with respect to his compensation, terms, conditions, or privileges of

2 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). 4 USCA11 Case: 19-14997 Date Filed: 11/30/2020 Page: 5 of 12

employment, because of such individual’s race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e-2(a)(1).

In Jackson v. Motel 6 Multipurpose, Inc., we noted that Title VII’s definition

of an unlawful employment practice does not cover discrimination against third-

party, non-employees. 130 F.3d 999, 1007 n.16 (11th Cir. 1997). In Jackson, a

case involving a petition for a writ of mandamus, Motel 6 employees asserted that

Motel 6 required them to discriminate against customers based on their race. The

employees claimed that Motel 6 retaliated against them when they refused to

follow the discriminatory practice. Id. at 1002. In ruling on the mandamus

petition, we recognized that the employees’ claims could not proceed because they

had not alleged that they were terminated for opposing an unlawful employment

practice—they opposed the hotel’s policy to discriminate against customers, not

employees. Id. at 1007 n.16.

On the other hand, “employers may be liable [under Title VII] for failing to

remedy the harassment of [its] employees by third-parties who create a hostile

work environment.” Beckford, v. Dep’t of Corr., 605 F.3d 951, 957–58 (11th Cir.

2010). For instance, in Beckford we held that the Florida Department of

Corrections could be liable under Title VII for failing to remedy the sexual

harassment of its female employees by prison inmates. Id.

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The district court correctly granted summary judgment for Stryker on

Stimson’s retaliation claim because Stimson did not engage in protected expression

under Title VII. Stimson did not oppose an unlawful employment practice when

he reported that Runyan harassed the nurse. Runyan’s actions toward the nurse

could not have involved her compensation, terms, conditions, or privileges of

employment with Stryker, as she was not a Stryker employee. Stimson’s argument

ignores the fact that to be an unlawful employment practice the discrimination

must be perpetrated by an employer and it must involve the individual’s

employment. See id. Thus, the relevant individual must work for the employer

who allegedly violated Title VII.3

Moreover, contrary to Stimson’s contention, Beckford is inapplicable here.

That case involved third-parties harassing employees and it did not address an

employee’s harassment of a third-party. 605 F.3d at 957–58. Beckford might be

applicable if Runyan’s and the nurse’s roles were reversed—if the non-employee

nurse had harassed employee Runyan—but that is not the case. Finally, Stimson’s

remaining arguments—that the district court failed to consider that Runyan and the

nurse were de facto coworkers and that Runyan’s actions essentially created a

3 Stimson’s argument that the district court erred by relying on Edwards v. Ambient Healthcare of Ga., Inc., 674 F. App’x 926 (11th Cir. 2017), an unpublished decision, is without merit. District courts can rely on unpublished decisions as persuasive, but not binding authority. U.S. v. Rodriguez-Lopez, 363 F.3d 1134, 1138 n.4 (11th Cir. 2004). The district court cited Edwards, but also explained that Stimson failed to cite Eleventh Circuit precedent to support his position. Additionally, Edwards relies on Jackson, a published opinion. 6 USCA11 Case: 19-14997 Date Filed: 11/30/2020 Page: 7 of 12

hostile work environment—ignore the plain language of Title VII and are not

supported by precedent.

Stimson did not engage in protected activity under Title VII when he

opposed the harassment of a third-party who was not employed by Stryker.

Therefore, he failed to establish a prima facie retaliation claim. See Thomas, 506

F.3d at 1363; see also 42 U.S.C. §§ 2000e-2(a)(1); 2000e-3(a). Accordingly, the

district court properly granted Stryker’s motion for summary judgment and we

affirm as to this issue.

II.

The ADEA prohibits employers from firing employees who are forty-years-

old or older because of their age. Liebman v. Metro. Life Ins. Co., 808 F.3d 1294,

1298 (11th Cir. 2015). The McDonnell Douglas framework applies to ADEA

claims based on circumstantial evidence. Id. Under the framework, “the plaintiff

bears the initial burden of establishing a prima facie case of discrimination by

proving, among other things, that [he] was treated differently from another

‘similarly situated’ individual—in court-speak, a ‘comparator.’” Lewis v. City of

Union City, Ga., 918 F.3d 1213, 1217 (11th Cir. 2019) (en banc). For comparators

to be similarly situated, they do not have to be “nearly identical,” but rather,

“similarly situated in all material respects.” Id. at 1218. Ordinarily, a similarly

situated comparator will have engaged in the same basic misconduct as the

7 USCA11 Case: 19-14997 Date Filed: 11/30/2020 Page: 8 of 12

plaintiff, been under the same supervisor, shared the plaintiff’s disciplinary and

employment history, and been subject to the same employment policy. Id. at

1227–28.

The district court properly concluded that Stimson and Runyan were not

similarly situated in all material respects. The only attribute they undisputedly

shared was that they were both subject to the same employment policy—Stryker’s

no lie, no cheat, no steal policy.4 We briefly summarize the other factors below.

First, while Runyan and Stimson are arguably more similarly situated in

their misconduct than as to the other factors, the district court did not err in

concluding that their misconduct differed in certain material respects. The basis of

the misconduct that began the investigations differed—Runyan was accused of

sexually harassing a nurse, while Stimson was accused of physically bullying

Runyan and joking about his sexuality. Additionally, while there was evidence

that Stryker Human Resources (HR) concluded that Stimson was dishonest during

its investigation, there was no such evidence as to Runyan. When HR investigated

Stimson as to his use of the name “Rodrigo,” it already knew that Stimson had

4 Stimson’s argument that the district court erred in considering Stryker’s objection to the R&R fails because, even if Stryker raised that argument for the first time in its objections, the district court had the discretion to consider it. See Stephens v. Tolbert, 471 F.3d 1173, 1175–77 (11th Cir. 2006) (per curiam) (finding that a district court has discretion to consider arguments not raised before a magistrate judge). In any event, we decided Lewis after the magistrate judge issued the R&R.

8 USCA11 Case: 19-14997 Date Filed: 11/30/2020 Page: 9 of 12

used that name to bully Runyan. But, when Stimson was asked about it, he denied

using the name. In contrast, when HR asked Runyan if he also used the name, he

said that he did not remember but that he would search his phone to confirm.

Shortly thereafter, Runyan provided copies of his text messages where he used the

name. Thus, the evidence before the district court supported that Stryker believed

that Runyan had not been intentionally dishonest about the “Rodrigo” issue, while

Stimson had.

Second, the district court correctly recognized that Stimson and Runyan

were supervised by two different individuals. Moreover, although HR investigated

both Runyan and Stimson in linked investigations, it could not make the final

decision to terminate either employee. The employees’ different supervisors

maintained this responsibility.

Third, the district court properly found that the two men did not share a

substantially similar employment and disciplinary history. Stimson had worked for

Stryker for several years, while Runyan was newer to the company. Stimson and

Runyan had different job titles and duties. Stimson’s job involved selling Stryker

devices and Runyan was responsible for servicing equipment and training hospital

staff. To that end, while Stimson serviced many Stryker customers and visited the

hospital in question only a few times a month, Runyan only reported to that

hospital for work. Further, as the district court noted, there was no evidence that

9 USCA11 Case: 19-14997 Date Filed: 11/30/2020 Page: 10 of 12

Runyan was ever formally reported for misconduct previously, while there was

evidence that Stimson was reported for harassment in 2012.

Stimson and Runyan were not similarly situated in all material respects

because, notwithstanding the dispute over the similarities in their misconduct, they

undoubtedly differed materially as to their supervisor and employment and

disciplinary histories. Accordingly, the district court properly granted Stryker’s

motion for summary judgment as to Stimson’s age discrimination claim and we

III.

Courts have inherent authority to “police” the proceedings before them.

Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991). This authority is governed “by

the control necessarily vested in courts to manage their own affairs so as to achieve

the orderly and expeditious disposition of cases.” Id. at 43. Courts can sanction

parties who have acted in bad faith, vexatiously, wantonly, or oppressively. Id. at

45–46; see also Purchasing Power, 851 F.3d at 1225 (stating that a court should

use its authority to rectify disobedience and vindicate judicial authority). A court

may conclude that a party has acted in bad faith “by delaying or disrupting the

litigation or by hampering enforcement of a court order.” Chambers, 501 U.S. at

46 (quotation mark omitted). Appropriate sanctions for such a finding include

dismissal or an award of attorney’s fees. Id. at 45.

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The district court did not abuse its discretion in ordering Stimson to pay

Stryker’s attorney’s fees in litigating its motion for sanctions. The district court

applied the proper standard and made a finding that Stimson had acted in bad faith.

Id. at 46. In doing so, the district court considered the relevant evidence before it

and made findings that were not unreasonable in light of the entire record.

Purchasing Power, 851 F.3d at 1222.

The district court correctly found that Stimson acted in bad faith. It is

undisputed that Stimson did not provide the requested data from his phone until

after the close of discovery, thus necessarily delaying the litigation. See

Chambers, 501 U.S. at 46. Additionally, Stimson was disobedient to the district

court in that he provided false testimony while under oath. Lastly, Stimson never

attempted to explain why he searched how to permanently delete data from his

phone or why he downloaded several data erasing applications, which, on their

own demonstrate a bad faith intent. See Chambers, 501 U.S. at 46.

The district court did not abuse its discretion by determining that, under the

circumstances, ordering Stimson to pay the costs of litigating the motion for

sanctions was appropriate. Accordingly, we affirm the district court’s order of

sanctions.

CONCLUSION

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For the reasons stated above, we affirm the district court’s order granting

summary judgement for Stryker as to Stimson’s claims under Title VII and the

ADEA. We also affirm the district court’s order directing Stimson to pay Stryker’s

attorney’s fees for litigating its motion for sanctions.

AFFIRMED.