Quaniah R. Stevenson v. Delta Air Lines, Inc.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 17, 2023
• Docket: 21-13814
• Status: Unpublished

Opinion

USCA11 Case: 21-13814 Document: 26-1 Date Filed: 01/17/2023 Page: 1 of 19

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 21-13814 Non-Argument Calendar ____________________

QUANIAH R. STEVENSON, Plaintiff-Appellant, versus DELTA AIR LINES, INC.,

Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Georgia D.C. Docket No. 1:16-cv-02571-AT ____________________ USCA11 Case: 21-13814 Document: 26-1 Date Filed: 01/17/2023 Page: 2 of 19

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Before ROSENBAUM, JILL PRYOR, and GRANT, Circuit Judges. PER CURIAM: After appellant Quaniah Stevenson was terminated from her job with Delta Air Lines, Inc., she sued the airline, claiming that it had unlawfully discriminated and retaliated against her. The district court granted summary judgment to Delta on all claims, and Stevenson appealed. After careful review, we affirm. I. Stevenson, an African-American woman, worked for Del- ta. 1 As an employment benefit, Delta provided Stevenson and her designated travel companion, Jovan Dais, with “travel passes” for free or reduced-rate travel. In addition, Stevenson received “bud- dy passes” from Delta, which allowed her to provide reduced-rate travel to other friends and family members. Delta had written policies regarding the use of the travel passes and buddy passes. It prohibited, among other things, the use of travel passes and buddy passes for business travel. Delta re- quired its employees to keep control over their passes. An em- ployee was responsible for ensuring that any pass she provided was not being used for business travel or any other improper pur-

1 Because we write only for the parties who are already familiar with the facts and proceedings in the case, we recite only what is necessary to explain our decision. USCA11 Case: 21-13814 Document: 26-1 Date Filed: 01/17/2023 Page: 3 of 19

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pose. Delta’s written policies provided that if a pass was used for business travel, the responsible employee may be “subject . . . to disciplinary action, up to and including . . . termination of em- ployment.” Doc. 88-6 at 1. 2 Stevenson was “very familiar with” the policies related to travel passes and buddy passes. Doc. 88-4 at 25. In 2014, Delta became concerned that some employees were allowing passes to be used for business purposes. It sent a memo to its employees reminding them not to “share [their] passes with anyone who intends to use pass travel for business purposes.” Doc. 88-11 at 1. Delta again warned employees that a violation of the policy could result in termination of the employee who provided the pass. At the same time, Delta announced it was starting a new initiative known as the “Fly Right” program to prevent abuse of the travel passes and buddy passes. As part of the initiative, Delta created a “Pass Protection Group,” which consisted of employees tasked with “proactively identify[ing] cases of possible abuse and investigat[ing] them thoroughly.” Doc. 88-10 at 2. The Pass Pro- tection Group focused on employees whose travel companions had high travel pass usage and employees who shared buddy passes with individuals who received buddy passes from at least five Delta employees. One of the individuals the Pass Protection

2 “Doc.” numbers refer to the district court’s docket entries. USCA11 Case: 21-13814 Document: 26-1 Date Filed: 01/17/2023 Page: 4 of 19

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Group identified was a passenger who received buddy passes from several Delta employees including Stevenson. As part of its review, the Pass Protection Group looked at Stevenson’s travel pass records and saw that Dais, Stevenson’s designated travel companion, frequently used a travel pass to fly to a number of different locations. The Pass Protection Group in- vestigated whether Dais was using his travel pass for business travel. During the investigation, the Pass Protection Group learned that Dais was a music producer. The Pass Protection Group focused on a June 6, 2015 trip for which Dais used a travel pass to fly from Atlanta to Los Ange- les, where he stayed for one night. Dais made the trip with Caleb Boyett, a music artist who used a buddy pass for the flight. On the day of the trip, Boyett posted to his social media accounts on mul- tiple platforms, including Twitter and Instagram, that he would be performing that night as an opening act for Tyga, a rapper, at a concert in Bakersfield, California. That day, Boyett also posted to his Instagram and Twitter accounts a photograph with the cap- tion, “ON SOME L.A. SHIT with @therealjovandais” and used the hashtag “#NODAISOFF.” 3 Doc. 88-3 at 21.

3 On his social media accounts, Dais had several other posts about Boyette. For example, he posted a photograph from the set where Boyette was re- cording a music video and on another occasion he posted about Boyette’s upcoming performances in Austin, Texas. In both posts, Dais included the hashtag “#nodaisoff.” USCA11 Case: 21-13814 Document: 26-1 Date Filed: 01/17/2023 Page: 5 of 19

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In July 2015, Delta interviewed Stevenson about Dais’s travel. After the interview, the company concluded that Steven- son had not been “forthcoming” during the interview about Da- is’s travel. Id. at 31. It also determined that Dais had used the travel pass for “business purposes.” Id. Because Stevenson had vi- olated Delta’s policies regarding travel passes and had recently re- ceived two other warnings for unrelated violations of company policy, Delta says, it decided to terminate her employment. At the time of the termination, Stevenson was over 40 years old. Stevenson, initially proceeding pro se, sued Delta. She brought claims for race, sex, and age discrimination as well as re- taliation claims. In her complaint, Stevenson denied that she had violated any policies related to travel passes. She also alleged that when other employees outside of her protected classes were found to have engaged in “the same or similar infractions [as those] attributed to [] Stevenson,” they were not terminated. Doc. 3 at ¶ 40. After the initial discovery period closed, Delta filed a mo- tion for summary judgment. At that point, Stevenson retained an attorney who entered an appearance in the case. The attorney filed a motion to reopen discovery, which was granted. After additional discovery, Delta filed a new motion for summary judgment. As required by the district court’s local rules, along with its motion Delta submitted a brief and a separate statement of undisputed facts. See N.D. Ga. R. 56.1. USCA11 Case: 21-13814 Document: 26-1 Date Filed: 01/17/2023 Page: 6 of 19

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Delta sought summary judgment on all of Stevenson’s claims. In its brief, Delta applied the burden shifting framework established by the Supreme Court in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). It argued that Stevenson had failed to establish a prima facie case of discrimination or retaliation and had no evidence that Delta’s legitimate, nondiscriminatory reason for terminating Stevenson—that she had allowed Dais to use the travel pass for business purposes and was not forthcoming during the investigation—was pretextual. Stevenson filed an opposition to the motion for summary judgment. The district court’s local rules directed that when a party responds to a motion for summary judgment, it must file a “responsive brief” as well as a “response to the movant’s state- ment of undisputed facts” and a “statement of additional facts which the respondent contends are material and present a genu- ine issue for trial.” N.D. Ga. R. 56.1(B)(2). Rather than file three separate documents—a responsive brief, a response to Delta’s statement of undisputed facts, and a statement of additional facts that present a genuine issue for trial—Stevenson filed a single document. In her opposition, Stevenson purported to respond both to the substance of Delta’s motion and its statement of un- disputed facts. Nowhere did Stevenson include a statement of ad- ditional facts that she contended were material and presented a genuine issue for trial. The first few pages of Stevenson’s response set forth her argument about why Delta was not entitled to summary judg- USCA11 Case: 21-13814 Document: 26-1 Date Filed: 01/17/2023 Page: 7 of 19

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ment. She argued that the evidence showed that she was “treated less favorably and differently (i.e., terminated with no warning for an alleged single violation of travel benefits) than individuals out- side of her protected classification.” Doc. 98 at 5. She also argued that there was evidence that other individuals outside of her pro- tected class “committed more egregious acts [yet] were allowed to keep their job[s].” Id. And she contended that there was no ev- idence that Dais had engaged in business travel when he used the travel pass on June 6. The remainder of Stevenson’s response purported to re- spond to Delta’s statement of undisputed facts. In this section, among other things, Stevenson identified by name 14 other em- ployees who she said had allowed “their travel passes to be used for business travel” but had not been terminated. Id. at 9. After reviewing the parties’ submissions, the magistrate judge prepared a lengthy recommendation that the district court grant Delta’s summary judgment motion. As a preliminary mat- ter, the magistrate judge found that Stevenson had failed to com- ply with the district court’s local rules governing responses to mo- tions for summary judgment. The magistrate judge pointed out that Stevenson had not filed any statement identifying the issues as to which there was a material dispute and had failed to set forth her response to Delta’s statement of undisputed facts in a separate document. The magistrate judge also identified other ways that Ste- venson’s response was inadequate. For example, to support her USCA11 Case: 21-13814 Document: 26-1 Date Filed: 01/17/2023 Page: 8 of 19

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position that similarly situated employees were treated different- ly, she provided a record citation to “40 pages from a deposition and an exhibit containing information regarding 190 Delta em- ployees.” Doc. 102 at 3–4 (emphasis omitted). The magistrate judge concluded that this response was insufficient because a judge is “not required to dig through volumes of documents and transcripts to try to figure out what facts [a party] might think support her position.” Id. at 4 (internal quotation marks omitted). Given these deficiencies, the magistrate judge concluded that the court could strike Stevenson’s response entirely. But “in the interest of fairness and expediency,” the magistrate judge said she would consider Stevenson’s “noncompliant brief.” Id. at 7 (in- ternal quotation marks omitted). The magistrate judge then addressed the merits of Steven- son’s race, sex, and age discrimination claims as well as her retali- ation claim. For each claim, the magistrate judge applied the McDonnell Douglas burden-shifting framework. For the race and sex discrimination claims, the magistrate judge determined that Stevenson had failed to establish a prima facie case and also that she had failed to demonstrate pretext. To establish a prima face case, the magistrate judge explained, Ste- venson had to show that “her employer treated similarly situated employees more favorably.” Id. at 26. The magistrate judge con- cluded that Stevenson had failed to come forward with such evi- dence. Although Stevenson had identified 14 individuals as poten- USCA11 Case: 21-13814 Document: 26-1 Date Filed: 01/17/2023 Page: 9 of 19

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tial comparators, the magistrate judge explained why each of these individuals was not similarly situated to Stevenson. The first group of potential comparators the magistrate judge discussed was five employees Delta had cleared of any mis- conduct. Because Delta had not found that these employees en- gaged in misconduct, the magistrate judge concluded they were not similarly situated. The second group of potential comparators were five em- ployees Delta found had engaged in misconduct and disciplined. But because none of these employees’ misconduct had involved “allow[ing] their travel passes to be used for business purposes,” the magistrate judge concluded that they had not “engaged in the same basic misconduct as” Stevenson and thus were not similarly situated. Id. at 31–32. The final group of potential comparators were four em- ployees Delta found had engaged in misconduct by allowing their travel passes to be used for business purposes. But the magistrate judge concluded that these individuals were not similarly situated because there was no evidence that these individuals “were dis- honest or evasive during their respective investigations.” Id. at 36. In addition, these individuals were not similarly situated because there was “no evidence” that they “shared [Stevenson’s] discipli- nary history.” Id. But even assuming that Stevenson had established a prima facie case of race or sex discrimination, the magistrate judge con- USCA11 Case: 21-13814 Document: 26-1 Date Filed: 01/17/2023 Page: 10 of 19

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cluded, Delta still would be entitled to summary judgment. The magistrate judge explained that Delta had “articulated legitimate, non-discriminatory reasons” for Stevenson’s termination: she was not “forthcoming” during her interview and Dais had used the travel pass for business purposes. Id. at 37 (internal quotation marks omitted). Because Stevenson had not demonstrated that each of these legitimate, non-discriminatory reasons was pre- textual, the magistrate judge determined that Delta was entitled to summary judgment. For Stevenson’s age discrimination claim, the magistrate judge found that she had failed to establish a prima facie case or demonstrate pretext. The magistrate judge explained that to es- tablish a prima facie case of age discrimination, Stevenson had to show, among other things, that “a substantially younger person filled the position from which [she] was discharged.” Id. at 22 (in- ternal quotation marks omitted). The magistrate judge concluded there was no evidence that a substantially younger person filled Stevenson’s position after she was discharged or that “a substan- tially younger Delta employee was treated differently” from Ste- venson. Id. at 23. Alternatively, even if Stevenson could establish a prima facie case, the magistrate judge concluded that Delta would still be entitled to summary judgment because Stevenson had failed to establish that Delta’s legitimate, non-discriminatory reason for her termination was pretextual. USCA11 Case: 21-13814 Document: 26-1 Date Filed: 01/17/2023 Page: 11 of 19

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After recommending that the district court grant summary judgment to Delta on all the discrimination claims, 4 the magis- trate judge considered Stevenson’s retaliation claims. The magis- trate judge concluded that Stevenson failed to establish a prima facie case of retaliation because there was no evidence that she ever had engaged in any protected conduct. The magistrate judge noted that Stevenson “freely admitted during her deposition[ that] she never made any complaints about any of the alleged harass- ment or ‘discrimination’ discussed in her [c]omplaint.” Id. at 46– 47. In any event, even if Stevenson had established a prima facie case, the magistrate judge concluded, Delta still would be entitled

4 Stevenson also brought disability discrimination claims under the Ameri- cans with Disabilities Act (“ADA”), 42 U.S.C. § 12112(a). The district court granted summary judgment on the disability discrimination claims on sever- al grounds, including because Stevenson failed to come forward with evi- dence showing that she was disabled under the ADA. “To obtain reversal of a district court judgment that is based on multiple, independent grounds, an appellant must convince us that every stated ground for the judgment against [her] is incorrect.” Sapuppo v. Allstate Flo- ridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014). When an appellant fails to challenge one of the grounds on which the district court based its judgment, she is deemed to have forfeited any challenge to the ground, “and it follows that the judgment is due to be affirmed.” Id. Because Stevenson does not raise any argument on appeal addressing the district court’s conclusion that there was no evidence that she was disabled under the ADA, we conclude that the district court’s grant of summary judgment on the disability discrim- ination claims is due to be affirmed. We thus address the ADA claims no fur- ther. USCA11 Case: 21-13814 Document: 26-1 Date Filed: 01/17/2023 Page: 12 of 19

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to summary judgment because Stevenson had failed to come forward with evidence of pretext. Stevenson objected to the report and recommendation. The district court overruled Stevenson’s objection, adopted the magistrate judge’s recommendation, and granted Delta’s sum- mary judgment motion. The court stated that it reached this con- clusion after “conduct[ing] a full de novo review of the record.” Doc. 106 at 2. The court agreed with the magistrate judge that Stevenson failed to establish “a prima facie case as to any of her claims.” Id. at 3. In addition, the court found that she had failed to “rebut[] the legitimate[,] nondiscriminatory reasons” put forth by Delta for her termination. Id. This is Stevenson’s appeal. II. We review de novo a district court’s grant of summary judgment, viewing all evidence and drawing all reasonable infer- ences in favor of the nonmoving party. Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1293 (11th Cir. 2006). Sum- mary judgment is appropriate only “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. R. Civ. P. 56(a). We review for abuse of discretion a district court’s decision to rule on a summary judgment motion before all discovery dis- putes have been resolved. Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1050 (11th Cir. 2015). USCA11 Case: 21-13814 Document: 26-1 Date Filed: 01/17/2023 Page: 13 of 19

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III. Stevenson argues on appeal that the district court erred in granting summary judgment to Delta on her discrimination and retaliation claims. She says that because this case was at the sum- mary judgment stage, she did not have to satisfy the prima facie case requirement under the McDonnell Douglas framework. We reject Stevenson’s argument that when a plaintiff travels under the McDonnell Douglas framework, she does not need to estab- lish a prima facie case to survive summary judgment. In this case, Stevenson brought race, sex, and age discrimi- nation claims as well as retaliation claims. Because Stevenson at- tempted to prove that Delta acted with a discriminatory (or retal- iatory) intent by circumstantial evidence, we look to the McDon- nell Douglas burden-shifting framework.5 See 411 U.S. 792. Un-

5 A plaintiff also may defeat summary judgment by presenting a “convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 328 (11th Cir. 2011) (footnote omitted) (internal quotation marks omitted). But Ste- venson raised no argument about the convincing mosaic framework in her opposition to the motion for summary judgment filed in the district court and raises no argument about it on appeal. We thus do not address the con- vincing-mosaic framework. See Owens v. Governor’s Off. of Student Achievement, 52 F.4th 1327, 1337 n.2 (11th Cir. 2022) (declining to consider convincing-mosaic framework when employee did not raise argument about the framework on appeal); Bailey v. Metro Ambulance Servs., Inc., 992 F.3d 1265, 1273 (11th Cir. 2021) (declining to consider convincing-mosaic frame- work when plaintiff did not adequately raise it in the district court). USCA11 Case: 21-13814 Document: 26-1 Date Filed: 01/17/2023 Page: 14 of 19

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der this framework, a plaintiff must first establish a prima facie case. See id. at 802. We briefly review the elements of a prima facie case for each of Stevenson’s claims. To state a prima facie case for race, sex, or age discrimination, a plaintiff must show that (1) she “be- long[ed] to a protected class,” (2) “she was subjected to an adverse employment action,” (3) “she was qualified to perform the job in question,” and (4) the “employer treated similarly situated em- ployees outside her class more favorably.” Lewis v. City of Union City, 918 F.3d 1213, 1220–21 (11th Cir. 2019) (en banc) (internal quotation marks omitted); see Morris v. Emory Clinic, Inc., 402 F.3d 1076, 1082–83 (11th Cir. 2005). With regard to the re- quirement that an employee must show that “similarly situated” employees outside her protected class were treated more favora- bly, we have explained that the plaintiff and any comparator must be similarly situated “in all material respects.” Lewis, 918 F.3d at 1227 (internal quotation marks omitted). “Ordinarily,” a similarly situated comparator “will have engaged in the same basic conduct (or misconduct) as the plaintiff” and “will share the plaintiff’s em- ployment or disciplinary history.” Id. at 1227–28. The elements of a prima facie case for a retaliation claim are different. A plaintiff must show: (1) she “engaged in statutorily protected activity,” (2) “she suffered an adverse [employment] ac- tion,” and (3) “the adverse action was causally related to the pro- tected activity.” Patterson v. Ga. Pac., LLC, 38 F.4th 1336, 1345 (11th Cir. 2022) (internal quotation marks omitted). USCA11 Case: 21-13814 Document: 26-1 Date Filed: 01/17/2023 Page: 15 of 19

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For both discrimination and retaliation claims under the McDonnell-Douglas framework, once an employee sets forth a prima facie case, the burden shifts to the employer to articulate a non-discriminatory basis for its employment action. See Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). If the employer meets this burden, the inference of discrimination drops out of the case entirely, and the plaintiff has the opportunity to show by a preponderance of the evidence that the employer’s proffered reasons “were not its true reasons, but were a pretext for discrimination.” Id. Stevenson’s primary argument on appeal is that the district court erred in applying the McDonnell-Douglas burden-shifting framework at the summary judgment stage. By requiring her to come forward with evidence of a prima facie case, she says, the district court improperly placed the burden on the nonmovant for summary judgment. The district court did not err. When a plaintiff travels un- der the McDonnell-Douglas framework “[t]o avoid summary judgment, [she] must establish a prima facie case” of discrimina- tion or retaliation. Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1999). Indeed, we have routinely applied the McDonnell-Douglas framework at the summary judge stage and affirmed the grant of summary judgment when the plaintiff failed to establish a prima facie case. See, e.g., Morris, 402 F.3d at 1082 (affirming grant of summary judgment to employer when plaintiff failed to establish prima facie case). USCA11 Case: 21-13814 Document: 26-1 Date Filed: 01/17/2023 Page: 16 of 19

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To support her position that as the non-movant for sum- mary judgment she did not need to satisfy McDonnell-Douglas’s prima facie case requirement, Stevenson cites to our decision in Clark v. Coats & Clark, Inc., 990 F.2d 1217 (11th Cir. 1993). We fail to see how Clark supports Stevenson’s argument. In that case, we affirmed the grant of summary judgment to the employer on several claims because the plaintiffs had “failed to establish a pri- ma facie case” under McDonnell-Douglas. Id. at 1223–26. We simply cannot say that the district court erred when it considered at the summary judgment stage whether Stevenson established a prima facie case. We also see no error in the district court’s conclusion that Stevenson failed to establish a prima facie case. For the discrimi- nation claims, the district court concluded that Stevenson failed to establish a prima facie case because she had not identified a simi- larly situated comparator. In response to Delta’s summary judg- ment motion, Stevenson identified 14 potential comparators. But the district court adopted the magistrate judge’s detailed explana- tion for why each potential comparator was not similarly situated. On appeal, Stevenson barely addresses the district court’s conclusion that the individuals she identified were not sufficiently similarly situated to qualify as comparators. At most, her brief in- corporates by reference the argument she made in the district court. But “we will not consider any arguments a party attempts to incorporate by reference to filings in the district court.” Haynes v. McCalla Raymer, LLC, 793 F.3d 1246, 1250 (11th Cir. 2015). USCA11 Case: 21-13814 Document: 26-1 Date Filed: 01/17/2023 Page: 17 of 19

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Because Stevenson failed to make any substantive argument in her opening brief on appeal about why the district court erred in concluding that she failed to identify a sufficiently similar com- parator, we conclude that she has abandoned this issue on appeal. See id. at 1250–51. Accordingly, we cannot say that the district court erred in granting summary judgment to Stevenson on her claims for race, sex, and age discrimination. Turning to Stevenson’s retaliation claim, the district court determined that Stevenson failed to state a prima facie case for an entirely different reason: there was no evidence that she had en- gaged in any protected conduct. The magistrate judge’s recom- mendation, which the district court adopted, stated that there was no evidence that Stevenson had “exercised any statutorily pro- tected rights.” Doc. 102 at 46. On appeal, Stevenson raises no ar- gument that the district court erred in determining that she had not engaged in protected conduct. We thus conclude that she for- feited any challenge to the grant of summary judgment on her re- taliation claim. See United States v. Campbell, 26 F.4th 860, 874 (11th Cir. 2022) (en banc). Stevenson offers one other reason to reverse the district court’s grant of summary judgment to Delta. She says that the district court’s ruling was premature given that she had previous- ly filed a motion to compel and the magistrate judge had deferred ruling on the motion to compel until after a deposition of an addi- tional Delta employee was completed. According to Stevenson, USCA11 Case: 21-13814 Document: 26-1 Date Filed: 01/17/2023 Page: 18 of 19

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the district court should not have ruled on the motion for sum- mary judgment until after the motion to compel was resolved. Even assuming a discovery dispute remained pending at the time that the district court granted summary judgment, we cannot say that the district court abused its discretion. “Although summary judgment should not be granted until the party oppos- ing the motion has had an adequate opportunity for discovery, we have made clear that the party opposing the motion for summary judgment bears the burden of calling to the district court’s atten- tion any outstanding discovery.” City of Miami Gardens v. Wells Fargo & Co., 931 F.3d 1274, 1286 (11th Cir. 2019) (internal quota- tion marks omitted). “Failure to satisfy this burden is fatal to an argument that the district court granted summary judgment prematurely by failing to order or await the results of further dis- covery.” Id.; see Urquilla-Diaz, 780 F.3d at 1063–64 (holding that district court did not abuse its discretion in granting summary judgment motion when nonmovant failed to alert district court to outstanding discovery issue). Stevenson argues on appeal that the district court should have deferred its ruling on summary judgment because there was an outstanding discovery issue. But when Delta moved for sum- mary judgment in this case, Stevenson did not alert the district court that a discovery dispute remained pending. She did not file a declaration, affidavit, or other notice alerting the district court to the pending dispute. And she did not reference the allegedly out- standing discovery dispute in her opposition to summary judg- USCA11 Case: 21-13814 Document: 26-1 Date Filed: 01/17/2023 Page: 19 of 19

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ment or in her objections to the magistrate judge’s recommenda- tion. Because Stevenson failed to satisfy her burden of calling the district court’s attention to the outstanding discovery issue, we cannot say that the district court abused its discretion in ruling on the summary judgment motion. See Urquilla-Diaz, 780 F.3d at 1063–64. IV. For the reasons set forth above, we affirm the district court’s grant of summary judgment. AFFIRMED.