Case: 17-14089 Date Filed: 10/26/2018 Page: 1 of 24
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14089 Non-Argument Calendar ________________________
D.C. Docket No. 2:16-cv-00230-WKW-GMB
PONCE D. HOWARD,
Plaintiff-Appellant,
versus
HYUNDAI MOTOR MANUFACTURING ALABAMA,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Middle District of Alabama ________________________
(October 26, 2018)
Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM: Case: 17-14089 Date Filed: 10/26/2018 Page: 2 of 24
Ponce D. Howard appeals, pro se, from the district court’s grant of summary
judgment to his former employer Hyundai Motor Manufacturing Alabama
(“Hyundai”) in his race discrimination lawsuit pursuant to Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1). On appeal, he argues that the
district court erred in concluding that he failed, in stating his prima facie case of
racial discrimination, to identify a similarly situated comparator outside his
protected class who was treated more favorably or to show that Hyundai’s
termination of him for workplace violence was pretext for race discrimination.
At all times relevant to this appeal, Hyundai operated an automobile
manufacturing facility in Montgomery, Alabama. In June 2012, Hyundai hired
Howard to work as a paint inspector. In February 2015, Hyundai terminated
Howard’s employment following an investigation stemming from a workplace
confrontation involving Howard and one or more of his coworkers.
Howard, who is black, alleged in his complaint that Hyundai discriminated
against him on account of his race when it terminated his employment. In his
complaint, Howard alleged the following facts surrounding a February 2015
incident between himself and a white coworker, Josh Denham. Denham began
verbally attacking him for taking sick leave due to an illness and then gave Chris
Arnold, a white supervisor, a broken tool to give to Howard as a part of the
harassment. Denham continued the harassment, telling Howard that he would have
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him fired and that Arnold and another white supervisor, Jeff Todd, would serve as
his witnesses to the argument. Arnold then went to inform the Team Relations
Department about the incident and, upon his return, pulled Todd and Denham to
the side to tell them what to say when reporting the incident to Team Relations.
Then, “one by one,” they reported the incident to Team Relations, saying what
Arnold had told them to say. There were eight black people who witnessed the
argument, including Irvin Smith and Carmen Paschal. Howard was ultimately
discharged due to the argument after a meeting with Team Relations. While a
white manager was present at the meeting, neither his black manager, nor his black
supervisor was present. Additionally, he was not given a hearing prior to his
termination, as required by Hyundai’s Human-Resources manual. Denham was
not fired, and was instead transferred to “Hyundai Transformer.” Howard also
attached his Equal Employment Opportunity Commission (“EEOC”) charge of
discrimination.
After conducting discovery, Hyundai filed a motion for summary judgment,
pursuant to Fed. R. Civ. P. 56, arguing, of relevance, that Howard failed to state a
prima facie case of racial discrimination and that all of its actions were taken for
legitimate, nondiscriminatory, and non-pretextual reasons. Hyundai asserted that,
as a result of its investigation of the 2015 incident—during which it interviewed
numerous individuals in addition to Arnold, Howard, and Denham—it had
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determined that Howard had twice thrown a tool at Denham and made threatening
statements and gestures towards Denham, which violated its Workplace Threats
and Violence Policy and its Serious Misconduct Policy. Hyundai asserted that, at
the time of Howard’s violation, he had been subject to a probationary Serious
Misconduct Letter (also known as a Letter of Conditional Employment), which had
been issued in response to his prior violation of the Workplace Threats and
Violence Policy in August 2013, such that his new violations warranted
termination. Hyundai further indicated that Denham was also terminated after an
investigation of him related to the 2015 incident concluded that he had violated its
Harassment Policy and Serious Misconduct Policy. Hyundai asserted that Denham
was not “transferred” to another job within the Hyundai Motor Manufacturing
Alabama company, and that Hyundai Power Transformers (“HPT”) was a
completely different company. Accordingly, Hyundai argued that Howard could
not meet his burden to show that it did not actually believe he engaged in
workplace violence and instead intended to discriminate against him, as he had
merely argued with the conclusions of Team Relations and Human Resources, and
offered no basis upon which to believe that its decision to terminate him was a
product of discrimination.
Also in support of its summary judgment motion, Hyundai submitted
numerous exhibits, including (1) Howard’s deposition; (2) the declaration of Rick
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Neal, the Senior Vice President of Human Resources and Administration, who was
white; (3) the declaration of Robert Clevenger, the Manager for Team Relations;
and (4) all referenced exhibits. The following facts were set out by Clevenger’s
and Neal’s declarations, Hyundai’s internal investigation memoranda relating to
the 2013 and 2015 incidents, Hyundai’s official disciplinary policies, and
Howard’s Letter of Conditional Employment. According to Hyundai’s official
policies, Serious Misconduct Offenses—which include, for example, harassment
and workplace violence—were punished outside of the normal process and
resulted in either termination or a Letter of Conditional Employment. The Letter
remained active for three years and required the employee to remain incident-free.
After an investigation into the 2013 incident, Team Relations found that Howard
made derogatory and threatening remarks to a black coworker, concluded that he
had violated the Workplace Threats and Violence Policy and engaged in Serious
Misconduct, and issued him a Letter of Conditional Employment instead of firing
him.
On the day of the 2015 incident, both a black supervisor and Denham
separately made complaints against Howard about the incident. Team Relations
investigated the incident by interviewing and taking statements from employees
who witnessed the incident, including Denham, Arnold, Smith, and Paschal. They
made the following statements. Denham stated that Howard had twice thrown the
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tool at him, hitting him in the leg one time, that Howard then got in his face and
made fists and told him that he would beat him up, and that he made a gesture in
the shape of a gun and said, “I’m going to come to your house and boom” and “I’ll
be in prison, but you’ll be in the grave.” Arnold stated that, after he gave the tool
to Howard, he turned his back to walk away and then heard them start to argue.
Arnold stated that he saw Howard approach Denham’s work area to intimidate him
and heard him threaten to beat Denham up, but that he did not see Howard make
any gestures towards Denham. Howard’s statement was similar to the allegations
from his complaint, adding that he threw the tool “up the line towards the upgrader
station” upon realizing that it was broken, that Denham cursed at him, and that he
never threatened Denham. Smith corroborated the story that, after teasing and
provocation by Denham, Howard twice threw the tool toward Denham and made
threatening statements and gestures at him. Paschal stated that she had tried to
calm Howard down and that Denham had been regularly harassing him.
Based on these interviews, Team Relations found the following: (1) Denham
gave Arnold a broken tool to give to Howard; (2) Howard twice threw the tool in
Denham’s direction; (3) Denham told Howard “you are gone[;] that’s your job”;
(4) Howard walked over to Denham, made a fist gesture at him, and threatened to
beat up and kill Denham; and (5) Denham instigated the incident and had harassed
Howard on a daily basis. Team Relations also compared Howard’s actions with
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others who had been separated for Workplace Violence infractions to ensure
consistency of punishment. Neal was the ultimate decision-maker as to whether
Howard would be fired. Upon review of the investigation and Howard’s
disciplinary history, Neal determined that Howard’s actions during the 2015
incident amounted to workplace violence, which was a Serious Misconduct
Offense, and decided to fire Howard. Neal’s decision was not influenced by
Howard’s race, and no one in the Employment Review Committee disputed the
investigatory findings or termination decision.
Neal also conducted an investigation of Denham related to the 2015 incident
and fired him because Denham also had previously been issued a Letter of
Conditional Employment and his actions during the 2015 incident amounted to
workplace violence, a Serious Misconduct Offense. Finally, HPT was not a
subsidiary, affiliate, or parent of Hyundai Motor Manufacturing Alabama, and the
two did not transfer employees.
Howard testified in his deposition to the following. At the time of the 2015
incident, he was on the Letter of Conditional Employment based on the 2013
incident, which he conceded had nothing to do with race. As to the 2015 incident,
Denham and Todd were harassing him, and Arnold stood by, laughing. Arnold
handed him the tool, which he threw in the trash can upon realizing that it was
broken. He did not curse at, or threaten, Denham. Arnold went to Team Relations,
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and then pulled Denham and Todd aside. Howard believed that Arnold, Denham,
and Todd collaborated to tell Team Relations the same story against him, but
conceded that he did not actually hear them do this and just made an assumption
because their stories matched. Nothing was said about his race on this occasion.
While Denham had made derogatory racial remarks to him, no one else at Hyundai
had ever done so. Further, he agreed that he had no reason to believe that any of
the individuals listed on the 2015 investigation memorandum prepared by Team
Relations—including Neal and Clevenger—disfavored him because he was black.
After Howard’s termination, Denham started working for HPT, which he assumed
constituted a transfer because both companies had “Hyundai” in the name. He
believed that his termination was based on his race because he was fired and
Denham was not, and because his white supervisors did nothing about Denham’s
harassment of him.
Howard responded to Hyundai’s motion for summary judgment, arguing that
he could establish a prima facie case of race discrimination and that Hyundai’s
proffered reason was a pretext for discrimination. In relevant part, he argued that
he could establish pretext by arguing with the conclusions of Team Relations as to
the 2015 incident and did so by adamantly denying that he committed workplace
violence against Denham, and by claiming that he was not fired on the basis of his
second Serious Misconduct Offense because Denham was not fired even though he
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had at least five prior reports of workplace violence and harassment. He asserted
that swifter and stronger action was brought against him after the 2015 incident
than after the 2013 incident because the 2015 incident involved a white victim and
the 2013 incident involved a black victim.
In support, Howard submitted declarations from himself, Smith, and
Paschal. His declaration largely set out his prior allegations, adding that he
believed that Denham attacked him during the 2015 incident because of his race,
and that he had testified in his deposition that he had no reason to believe that two
particular supervisors with whom he was familiar disfavored him because he was
black, but that he did not know the other listed supervisors, including Clevenger
and Neal. Smith declared that he saw Howard throw the tool “up the line,” but did
not see him throw the tool at Denham, and that Denham and his two friends
regularly made derogatory statements to Howard. In addition to the statements she
provided in her investigatory interview, Paschal declared that she did not observe
Howard taking any threatening actions against Denham during the 2015 incident,
and that Denham had a history of making derogatory statements to coworkers and
was only disciplined once.
Upon review, a magistrate judge issued a report and recommendation
(“R&R”), recommending granting summary judgment in favor of Hyundai and
dismissing Howard’s complaint. More specifically, the R&R concluded that (1)
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Howard failed to state a prima facie case of racial discrimination because he failed
to show that he was treated less favorably than a similarly situated individual
outside of his protected class, and (2) even so, Hyundai had proffered a legitimate,
nondiscriminatory reason for his termination, and he failed to submit sufficient
evidence suggesting both that its proffered reason was pretextual and that its true
motivation was based on race.
Howard objected to the R&R, arguing that it erroneously: (1) failed to focus
on the overwhelming evidence that Denham had a long history of harassing
Hyundai employees, which Hyundai failed to respond to; (2) weighed the evidence
in Hyundai’s favor and made improper credibility determinations; and (3) found
that Hyundai’s objections to his declaration should be sustained. The district court
overruled the objections, adopted the R&R, and granted its summary judgment
motion and dismissed with prejudice Howard’s complaint. Howard filed a motion
entitled “Motion for reconsideration and to alter order and judgment,” reiterating
his argument that the district court erred in adopting the R&R because it
misapplied the summary judgment standard by crediting Hyundai’s allegations
over his own and relying on disputed evidence as to whether he committed
workplace violence during the 2015 incident and whether he suffered
discrimination. The district court construed Howard’s motion as being brought
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pursuant to Fed. R. Civ. P. 59(e) and denied the motion because he failed to
present any newly discovered evidence or show any manifest error of law or fact.
Howard appealed and moved for leave to proceed on appeal in forma
pauperis (“IFP”), which the district court denied. Howard then moved this Court
for leave to proceed on appeal IFP. We denied his motion on grounds that any
appeal in this case would be frivolous. Howard paid his court costs, and this
appeal followed.
I.
We review the district court’s grant of summary judgment de novo, applying
the same legal standards as the district court. Alvarez v. Royal Atl. Developers,
Inc., 610 F.3d 1253, 1263 (11th Cir. 2010). “We will affirm if, after construing the
evidence in the light most favorable to the non-moving party, we find that no
genuine issue of material fact exists and the moving party is entitled to judgment as
a matter of law.” Id. at 1263–64. A plaintiff must present more than a mere
scintilla of evidence, and cannot rest his contentions on speculation or conjecture.
Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117, 1122 (11th Cir. 2014).
Briefs submitted by pro se litigants are construed liberally. Timson v.
Sampson, 518 F.3d 870, 874 (11th Cir. 2008). Notwithstanding this liberal
construction, however, issues not briefed on appeal by a pro se litigant are deemed
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abandoned, and we do not address arguments raised for the first time in a pro se
litigant’s reply brief. Id.
Under Title VII, it is unlawful for an employer to “discharge . . . or
otherwise 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). A plaintiff may establish discrimination
through direct evidence, circumstantial evidence, or statistical proof. Alvarez,
610 F.3d at 1264. When evaluating a discrimination claim based on circumstantial
evidence, we primarily apply the framework set out in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), and Texas Dep’t of Community Affairs v. Burdine,
450 U.S. 248 (1981). 1 Id. Under this framework, a plaintiff is first required to
establish a prima facie case of discrimination. Id. To establish a prima facie case
of discrimination, a plaintiff may show that (1) he is a member of a protected class;
(2) who is qualified for the position; (3) but was subject to an adverse employment
decision; and (4) a similarly situated employee who is outside the protected class
was treated more favorably. Alvarez, 610 F.3d at 1264.
If the plaintiff establishes his prima facie case, the burden then shifts to the
defendant to produce evidence of a legitimate, nondiscriminatory reason for its 1 This Court has noted that establishing the elements of the McDonnell Douglas framework is not the only way to survive summary judgment in an employment discrimination case, and that a plaintiff may also present “a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker.” Smith v. Lockheed- Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (quotation marks omitted). 12 Case: 17-14089 Date Filed: 10/26/2018 Page: 13 of 24
action. Alvarez, 610 F.3d at 1264. If the defendant produces such evidence, the
burden shifts then back onto the plaintiff, who must produce evidence that the
employer’s proffered reason is actually a pretext for discrimination. Id. “[T]he
ultimate burden of persuasion remains on the plaintiff to show that the defendant
intentionally discriminated against [him].” Id.
If the defendant’s proffered reason is one that would motivate a reasonable
employer to take the adverse action, the plaintiff “must meet that reason head on
and rebut it,” and cannot prove pretext by recasting the defendant’s reason or by
substituting his business judgment for the defendant’s. Id. at 1265–66 (noting that
the pretext inquiry focuses on the employer’s and not the employee’s belief).
A plaintiff can show that an employer’s justification of his termination based
on his violation of a work rule is arguably pretextual by submitting evidence that:
(1) he did not violate the work rule, or (2) if he did violate the rule, other
employees outside the protected class who similarly violated the rule were not
similarly treated. Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354,
1363 (11th Cir. 1999). The plaintiff must show both that the proffered reason was
false, and that discrimination was the true reason for the adverse action. Smith v.
Lockheed-Martin Corp., 644 F.3d 1321, 1326 (11th Cir. 2011).
II.
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The district court properly granted summary judgment because Howard
failed to state a prima facie case of racial discrimination. In applying the
McDonnell Douglas framework, we note that there is no dispute regarding the first
three elements of our analysis. Howard is a member of a protected class because he
is black. Hyundai does not allege he was not qualified for his position as a paint
inspector. Finally, Howard was subject to an adverse employment decision when
Hyundai terminated his employment following the 2015 incident. It is with respect
to the final element of the analysis—the presence of a comparator outside the
protected class who received more favorable treatment—that the parties differ.
Taken as a whole, Howard’s pleadings raise the prospect of three potential
comparators: Denham, Todd, and Arnold. Hyundai responds by arguing that each
of Denham, Todd, and Arnold is not an appropriate comparator because he is not
similarly situated to Howard (Denham, as best we can tell, because his disciplinary
history differs slightly from Howard’s, and Todd and Arnold because they played
no significant role in the 2015 incident). With respect to Denham, we can assume
arguendo that he is an appropriate comparator.
Todd and Arnold, on the other hand, are not appropriate comparators. When
determining whether employees are similar for purposes of the Title VII “similarly
situated” analysis, this Court considers “whether the employees are involved in or
accused of the same or similar conduct . . . .” Holifield v. Reno, 115 F.3d 1555,
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1562 (11th Cir. 1997). Although not dispositive, “[m]aterial differences in ranks
and responsibilities are relevant for considering whether an employee is a proper
comparator.” Cyprian v. Auburn U. Montgomery, 799 F. Supp. 2d 1262, 1282
(M.D. Ala. 2011) (citing Rioux v. City of Atlanta, 520 F.3d 1269, 1280–81 (11th
Cir. 2008)). The disciplinary histories of the plaintiff and the proposed comparator
also are relevant to our inquiry. See Knight v. Baptist Hosp. of Miami, Inc., 330
F.3d 1313, 1318–19 (11th Cir. 2003) (finding two employees to not be similarly
situated where one employee’s documented history of misconduct was “much
worse . . . in both number and nature”).
We are ultimately persuaded that Todd and Arnold are not appropriate
comparators because they are not accused of conduct that is the same or similar to
Howard’s. In fact, the record indicates only that Arnold handed Howard a non-
functioning tool as part of a practical joke and later laughed as events unfolded.
As for Todd’s part in the encounter, Howard speculates that Todd told Denham
and Arnold what to report to Team Relations about the event, but Howard also
admits that he did not hear a word that any of Denham, Arnold, or Todd spoke
during their huddle. Importantly, there is no indication in the record of either
Arnold or Todd using profane language, threating anyone, or throwing objects
towards their coworkers. Howard even admits that other than their limited
involvement in the 2015 incident, Arnold and Todd essentially ignored him.
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Moreover, Todd is not even mentioned in the Team Relations memorandum
interviewing witnesses to the 2015 incident, and neither Todd nor Arnold appears
to have been subject to any Letter of Conditional Employment at the time of the
2015 incident. As the magistrate judge’s R&R properly emphasized, “Todd’s and
Arnold’s relevant conduct amounts to ignoring Howard, giving him menacing
looks, huddling to speak with Denham following the incident . . . , and otherwise
failing to stop Denham’s harassment of Howard.” Because Denham is the only
proper comparator, we proceed to determine whether he received treatment that
was more favorable than that afforded Howard.
In relevant part, Howard argues that Hyundai treated Denham more
favorably following the 2015 incident because Hyundai (1) did not fire Denham
promptly after the incident occurred, (2) assisted in arranging Denham’s transfer to
HPT, which Howard believed to be a related company, and (3) failed to
appropriately address the earlier harassment Denham inflicted on Howard and
other employees. Hyundai responds by noting that it also terminated Denham for
his part in the 2015 incident shortly after terminating Howard; that Hyundai and
HPT are unrelated corporate entities that do not transfers employees to one
another; and that Howard never properly notified Hyundai of Denham’s earlier
harassment.
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Even construing the evidence in a light most favorable to Howard, we find
that Denham was not treated more favorably than Howard after the 2015 incident.
To begin, it is clear that Hyundai also fired Denham shortly after the 2015 incident.
Once Hyundai concluded its investigation of Howard, Neal, Hyundai’s Senior Vice
President of Human Resources and Administration, ordered an investigation of
Denham’s role in the incident. Hyundai then undertook an investigation of
Denham that, as in Howard’s case, culminated in the development of a detailed
memorandum describing the company’s findings. The memorandum is dated
March 2, 2015, only six days after the Howard memorandum. Like the Howard
memorandum, the Denham memorandum detailed relevant witness testimony from
many of the same witnesses who were present during the incident. It reached
written conclusions where facts were supported by the testimony of two or more
witnesses. It recounted Denham’s disciplinary history, including the fact that he
was subject to an active Letter of Conditional Employment. Finally, it presented
the Hyundai policy at issue. After reviewing the findings, and without any notice
that Howard might file an EEOC complaint or lawsuit, Neal determined that
Hyundai should terminate Denham’s employment, which it ultimately did.
We also disagree with Howard’s assertion that Hyundai treated Denham
more favorably by aiding in his “transfer” to HPT. It is uncontroverted that
Hyundai and HPT are separate legal entities. Howard does not dispute Hyundai’s
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claims that neither entity is a subsidiary, affiliate, or parent of the other and that the
two entities do not share or transfer any management or employees, so we accept
them as true. Most importantly, we find no evidence in the record that Hyundai
actually transferred Denham or otherwise assisted him in obtaining employment
with HPT. 2 Consequently, we find no disparate treatment on this ground.
Lastly, we find no disparate treatment in Hyundai’s alleged failure to
address Denham’s earlier harassment. First and foremost, Howard testified in his
deposition that he never formally reported any harassment or discrimination,
involving Denham or otherwise, before the 2015 incident. Given this, it is hard to
conclude that Hyundai should be faulted for failing to take action regarding
Denham’s earlier alleged misbehavior. See Madray v. Publix Supermarkets, Inc.,
208 F.3d 1290, 1300 (11th Cir. 2000) (concluding that an employer cannot be said
to be on notice of alleged harassment unless it is reported to individuals designated
in its anti-harassment policy). Additionally, a review of Denham’s documented
disciplinary history as set forth in the March 2, 2015 Team Relations memorandum
reveals a series of relatively minor infractions and two incidents of Serious
2 We also refuse Howard’s invitation to take judicial notice of the fact that, in most employment situations, an applicant is required to submit the name of his or her last employer to the new employer. Apart from the fact this this is not the kind of thing about which courts ordinarily take judicial notice, see Shahar v. Bowers, 120 F.3d 211, 214 (11th Cir. 1997) (describing well-known scientific facts, matters of geography, and matters of political history as typical examples of judicially noticeable information), we note that during his deposition Howard himself admitted to leaving two of his prior employers off the employment application he submitted to Hyundai. Moreover, Howard also failed to show us any similar case so extending the doctrine of judicial notice, and we decline to do so here. 18 Case: 17-14089 Date Filed: 10/26/2018 Page: 19 of 24
Misconduct involving an altercation and, separately, inappropriate behavior
towards other Team Members. Denham received Letters of Conditional
Employment on each occasion, the first of which was inactive by the time of the
2015 incident. All in all, we take this as evidence that Hyundai was doing its best
to fairly manage a difficult employee, but nothing in the record suggests that
Hyundai departed from its documented procedures and afforded Denham any
special treatment it did not later afford Howard. In particular, the record does not
reveal that Denham committed any Serious Misconduct while subject to an active
Letter of Conditional Employment and was permitted by Hyundai to keep his job.
Accordingly, we find no evidence of disparate treatment on this ground either.
Ultimately, we agree with the magistrate judge and the district court that
Howard has not met his burden of demonstrating that a similarly situated employee
outside his protected class was treated more favorably. As a result, he has failed to
establish a prima facie case of race-based employment discrimination, and the
district court did not err in granting Hyundai’s motion for summary judgment.
III.
Although our analysis could end with the finding that the district court did
not err in granting summary judgment because Howard failed to establish a prima
facie case of race discrimination, we write briefly to address his argument that
Hyundai’s proffered work-rule-violation reason was pretext for discrimination.
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Assuming, for the sake of argument, that Howard established a prima facie case of
race discrimination, Hyundai has articulated and produced evidence of a
legitimate, nondiscriminatory reason for its termination of him—its determination
that he had violated its Workplace Threats and Violence Policy and its Serious
Misconduct Policy while he was already subject to a Letter of Conditional
Employment. See Alvarez, 610 F.3d at 1264; Jones, 874 F.2d at 1540. Because
violating established policies by engaging in workplace violence twice within a
three-year period would motivate a reasonable employer to fire an employee, the
burden shifted back to Howard to produce evidence that Hyundai’s proffered
reason was actually pretext for discrimination. See Alvarez, 610 F.3d at 1264.
However, Howard has failed to prove that Hyundai’s proffered work-rule-
violation reason was pretext for discrimination. While he claimed both that he did
not violate any policies during the 2015 incident and that Denham was not
similarly punished for his violations of those same policies, Howard has produced
no evidence showing that Hyundai’s true reason for firing him was based on race.
See Damon, 196 F.3d at 1363; St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515
(1993) (noting that it must be “shown both that the reason was false, and that
discrimination was the real reason”). Rather, he largely relied on his conclusory
opinions and beliefs that Denham attacked him during the 2015 incident because of
his race, that he received harsher treatment after the 2015 incident because the
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victim was white and not black, and that he was ultimately fired because of his
race. See Alvarez, 610 F.3d at 1264–65. Further, these conclusory opinions and
beliefs are contradicted by: (1) his testimony that race was not mentioned during
the incident; (2) his testimony that no one else from Hyundai other than Denham
had ever made derogatory racial statements toward him; (3) his testimony that he
had no reason to believe that at least some of the individuals listed on the Team
Relations memorandum disfavored him because he was black; and (4) his failure to
testify or otherwise produce any evidence that the remaining individuals listed on
that memorandum did disfavor him because he was black.
In his arguments on appeal, Howard makes much of his own testimony that
he did not actually threaten anyone or throw the worn-down tool at Denham during
the 2015 incident. He argues that, because Hyundai’s Team Relations
memorandum reached different conclusions, there is a dispute of fact that should
have precluded summary judgment. Hyundai responds by noting that the law does
not require its conclusions regarding workplace misconduct to be free from error;
instead, it only requires an employer’s conclusions to be honestly made and free
from evidence of unlawful discriminatory animus. Hyundai is correct.
We have said many times that we are not a “super-personnel department,”
and it is not our role to second-guess employers, “no matter how mistaken the
firm’s managers.” Id. The fact that an employer’s legitimate belief is or may
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potentially be incorrect is immaterial so long as the employer’s decisions were not
ultimately shown to be motivated by unlawful discriminatory animus. See id. at
1266 (“The question to be resolved is not the wisdom or accuracy of [the
employer’s] conclusion that [the Title VII claimant’s] performance was
unsatisfactory, or whether the decision to fire her was ‘prudent or fair.’”); Damon,
196 F.3d at 1363 n.3 (“An employer who fires an employee under a mistaken but
honest impression that the employee violated a work rule is not liable for
discriminatory conduct.”); Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989)
(“The law is clear that, even if a Title VII claimant did not in fact commit the
violation with which he is charged, an employer successfully rebuts any prima
facie case of disparate treatment by showing that it honestly believed the employee
committed the violation.”); Turner v. Texas Instruments, Inc., 555 F.2d 1251, 1256
(5th Cir. 1977) (“Even if [the employer] wrongly believed that [the Title VII
claimant] violated this policy, if [the employer] acted on this belief it was not
guilty of racial discrimination.”). At the end of the analysis, our “sole concern is
whether unlawful discriminatory animus motivated the decision.” Alvarez, 610
F.3d at 1266 (quotation marks omitted).
After a careful review of the entire record, we are convinced that Hyundai
decided to terminate Howard based on its honest belief that he violated its
Workplace Threats and Violence Policy and its Serious Misconduct Policy while
22 Case: 17-14089 Date Filed: 10/26/2018 Page: 23 of 24
subject to an active Letter of Conditional Employment. But even if Hyundai’s
conclusions regarding Howard’s conduct during the 2015 incident were wholly or
partially mistaken, it cannot be held liable for discriminatory conduct because
Howard has also failed to point to any evidence that unlawful discriminatory
animus actually motivated Hyundai’s actions. Aside from the fact that Denham—
who did not have the authority to terminate Howard’s employment and played no
part in Hyundai’s decision to do so—had previously made derogatory racial
remarks to Howard, and Howard’s reference to his own skin color during the 2015
incident, the record presents no evidence that race actually played a part in any of
the events leading to Howard’s termination.
Further, Howard’s failure to show any evidence that Hyundai’s true reason
for firing him was discrimination means that he also failed to show a “convincing
mosaic of circumstantial evidence” raising a reasonable inference that Hyundai
intentionally discriminated against him based on his race. See Smith, 644 F.3d at
1328.
IV.
We hold that the district court properly granted Hyundai summary judgment
and dismissed with prejudice Howard’s complaint because he failed to establish a
prima facie case of racial discrimination, and, even if the burden did shift to
Hyundai, he failed to show that Hyundai’s proffered legitimate, nondiscriminatory
23 Case: 17-14089 Date Filed: 10/26/2018 Page: 24 of 24
reason for his termination was pretextual and that racial discrimination was the real
reason for his termination.
AFFIRMED. 3
3 Howard’s motion to seal the record on appeal is hereby DENIED. 24