Raul Moreno v. Serco Inc.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: May 11, 2018
• Docket: 17-13385
• Status: Unpublished

Opinion

Case: 17-13385 Date Filed: 05/11/2018 Page: 1 of 9

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-13385 Non-Argument Calendar ________________________

D.C. Docket No. 1:15-cv-03382-CC

RAUL MORENO,

Plaintiff-Appellant,

versus

SERCO INC.,

Defendant-Appellee.

________________________

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

(May 11, 2018)

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

PER CURIAM: Case: 17-13385 Date Filed: 05/11/2018 Page: 2 of 9

Raul Moreno, proceeding pro se, appeals from the district court’s grant of

summary judgment in his action against his former employer, Serco, Inc., alleging

national-origin discrimination and retaliation in violation of 42 U.S.C. §§ 2000e-2,

3. 1 The facts of the case (and competing allegations) are known to the parties; we

will not repeat them here. Moreno raises two arguments on appeal. First, as a

procedural matter, he argues that the district court held him to an unreasonably

high standard given his pro se status and mental-health condition. Second, as a

substantive matter, he contends that the district court erred in granting Serco’s

motion for summary judgment because it ignored his evidence of discrimination

and retaliation.

We will address each argument in turn.

I

We give great deference to a district court’s interpretation of its local rules,

and review a district court’s application of its local rules for abuse of discretion.

Reese v. Herbert, 527 F.3d 1253, 1267 n.22 (11th Cir. 2008). To show abuse of

discretion, a plaintiff must show that the district court made a clear error of

judgment. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1302 (11th Cir. 2009).

1 Moreno also included in his complaint a hostile-work-environment claim, which the district court rejected because the challenged conduct was not severe or pervasive. Because Moreno does not expressly challenge the severe-or-pervasive finding on appeal, any issue in this respect is abandoned. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). 2 Case: 17-13385 Date Filed: 05/11/2018 Page: 3 of 9

Although we liberally construe pro se pleadings, pro se litigants must still

follow procedural rules. Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007).

We will not consider an issue not raised in the district court and pressed for the

first time on appeal. Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324,

1331 (11th Cir. 2004). Where a pro se litigant fails to raise a legal claim on

appeal, he abandons that claim, and we will not review it. Timson v. Sampson, 518

F.3d 870, 874 (11th Cir. 2008).

Unsworn declarations must contain a certification by the declarant that they

were made under penalty of perjury. 28 U.S.C. § 1746.

Federal Rule of Civil Procedure 56 requires a party asserting that a fact is

genuinely disputed to support that assertion by citing to particular parts of the

record, and failure to do so may result in the court deeming the fact undisputed for

purposes of the motion for summary judgment. Fed. R. Civ. P. 56(c)(1)(A), (e)(2).

Similarly, Northern District of Georgia Local Rule 56.1B provides that a

respondent to a motion for summary judgment must include a document with the

responsive brief responding to the movant’s statement of undisputed facts and

containing concise, nonargumentative, individually numbered responses

corresponding to each of the movant’s numbered undisputed material facts. N.D.

Ga. Local Rule 56.1B(2)(a)(1). Further, the local rule specifically provides that the

court will:

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deem each of the movant’s facts as admitted unless the respondent: (i) directly refutes the movant’s fact with concise responses supported by specific citations to evidence (including page or paragraph number); (ii) states a valid objection to the admissibility of the movant’s fact; or (iii) points out that the movant’s citation does not support the movant’s fact or that the movant’s fact is not material or otherwise has failed to comply with the provisions set out in LR 56.1 B.(1).

N.D. Ga. Local Rule 56.1B(2)(a)(2).

We have stated that when “the non-moving party has failed to comply with

Local Rule 56.1—the only permissible way for it to establish a genuine issue of

material fact at that stage—the court has before it the functional analog of an

unopposed motion for summary judgment.” Reese, 527 F.3d at 1268.

Here, the district court did not hold Moreno to an unreasonably high

standard, and Moreno’s assertion that his pro se status should have excused his

failure to follow the applicable rules fails. (Because Moreno does not challenge

the district court’s finding that he did not follow the applicable rules, he has

abandoned any argument in that regard. See Timson, 518 F.3d at 874.) Even

though he was proceeding pro se, Moreno was nonetheless obligated to follow the

court’s rules. See Albra, Inc., 490 F.3d at 829. Because Moreno failed to properly

address each item in Serco’s statement of facts, the district court was entitled to

treat Serco’s statement of facts as admitted. See Reese, 527 F.3d at 1268.

Moreover, the court was not required to accept the additional declarations

submitted by Moreno—of Mark Granados and Reggie Nash—because neither

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declarant stated that he made his statement under penalty of perjury, as required by

28 U.S.C. § 1746.

Nor did Moreno’s mental-health status render the district court’s decisions

abuses of discretion. The magistrate judge specifically considered the issue and

found that Moreno had not demonstrated that his condition explained or justified

his failure to follow the court’s rules. See Reese, 527 F.3d at 1267 n.22.

To the extent that Moreno challenges the district court’s treatment of his

filings and arguments generally, nothing in the record indicates that the court

treated him unfairly. The court offered him the opportunity to renew his motion to

appoint counsel, deferred to his choice of venue, and construed the record evidence

in the light most favorable to him when ruling on the summary judgment motion,

despite his failure to properly cite to it.

Finally, with respect to Moreno’s apparent argument that Serco violated his

due process rights, he did not raise it before the district court and thus cannot raise

it here. See Access Now, 385 F.3d at 1331. And as to Moreno’s argument that he

should have been allowed to confront and cross-examine witnesses, nothing in the

Federal Rules of Civil Procedure—or elsewhere—provides for such a procedure at

the summary judgment stage.

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II

We review a district court’s order granting summary judgment de novo,

“viewing all the evidence, and drawing all reasonable inferences, in favor of the

non-moving party.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th

Cir. 2005). Summary judgment is proper only if there are no genuine issues of

material fact and the moving party is entitled to judgment as a matter of law. Id.

Title VII makes it unlawful for an employer to (i) discriminate on the basis

of national origin or (ii) retaliate against an individual because he has opposed an

unlawful employment practice. 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3. Where, as

here, an employee bases a discrimination claim on circumstantial evidence, we

generally apply the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),

burden-shifting framework. McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir.

2008). Under this framework, if a plaintiff establishes a prima facie case for

disparate treatment, and the employer provides a legitimate, nondiscriminatory

reason for its action, the employee must then show that the employer’s stated

reasons are a pretext for unlawful discrimination. Id. A similar framework applies

to retaliation claims. Crawford v. City of Fairburn, 482 F.3d 1305, 1308 (11th Cir.

2007).

We have explained that, to establish pretext, the plaintiff must “meet [the

employer’s proffered] reason head on and rebut it, and the employee cannot

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succeed by simply quarreling with the wisdom of that reason.” Brooks v. Cnty.

Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160, 1162 (11th Cir. 2006) (quoting

Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc)). A

reason is not pretextual unless it is shown that the proffered reason is false and

discrimination or retaliation was the real reason for the adverse employment

action. Id.; see Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344,

1349 (11th Cir. 2007).

Liberally construing Moreno’s arguments as a challenge to the entry of

summary judgment as to his discrimination and retaliation claims, he has not

shown that the district court erred. Procedurally, the court did not err in accepting

Serco’s statement of facts and deeming them admitted, because, as already

explained, Moreno failed to follow the court rules in responding to Serco’s motion.

Moreover, his bare assertion that the district court erroneously disregarded his

statement of facts is not sufficient to raise the issue on appeal. See Sapuppo, 739

F.3d at 681.

Substantively, because the magistrate judge assumed that Moreno could

establish a prima facie case of discrimination and retaliation, the only aspect of the

ruling that is at issue is whether Moreno established that Serco’s stated reasons for

firing him—in particular, because the top-ranking government official onsite had

7 Case: 17-13385 Date Filed: 05/11/2018 Page: 8 of 9

banned him from the worksite and confiscated his access card—were pretexts for

discrimination or retaliation.

Moreno did not present evidence sufficient to establish pretext. His

assertions that the management team made racist remarks, falsified reports about

his performance, and enforced the dress code and timecard policies more strictly

against him have no relation to the stated reasons and do nothing to undermine

those reasons. Likewise, although Moreno claims that a member of Serco’s

management team, Greg Sudsberry, warned him that the other managers wanted to

fire him, he does not state that Sudsberry told him they wanted to fire him because

of his Mexican heritage or because he filed an ethics complaint. Thus, none of the

instances to which Moreno points—however troubling—establishes pretext,

because they do not rebut Serco’s stated reasons for firing him or demonstrate that

those reasons are false. See Brooks, 446 F.3d at 1162; see Springer, 509 F.3d at

1349.

Even if Moreno’s assertion that he did not need his access card to enter the

worksite or use the computers could be deemed to undermine Serco’s insistence

that he was fired for losing his card, he has not presented any evidence or made

any argument to undermine Serco’s other stated reason for firing him—that the

top-ranking government official at the worksite no longer wanted him there. Nor,

finally, has Moreno presented any evidence to support his conclusory assertion that

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a “false” 911 call was made with the intention of getting him banned. At most, he

showed that the concerns about his behavior that led to the call were incorrect—not

that they were unfounded.

AFFIRMED.