Case: 17-14839 Date Filed: 09/05/2018 Page: 1 of 16
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 17-14839 Non-Argument Calendar ________________________
D.C. Docket No. 1:15-cv-03743-TCB
RICHARD VALENTINO HARRISON,
Plaintiff-Appellant,
versus
BELK, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court for the Northern District of Georgia ________________________
(September 5, 2018)
Before MARTIN, JILL PRYOR, and EDMONDSON, Circuit Judges. Case: 17-14839 Date Filed: 09/05/2018 Page: 2 of 16
PER CURIAM:
Plaintiff Richard Harrison, proceeding pro se, 1 appeals the district court’s
grant of summary judgment in favor of his former employer, Belk, Inc. (“Belk”), in
his civil action alleging race and sex discrimination in violation of Title VII of the
Civil Rights Act, 42 U.S.C. § 2000e, et seq. (“Title VII”), and 42 U.S.C. § 1981.
No reversible error has been shown; we affirm.
Plaintiff (a black male) began working as a seasonal sales associate at a Belk
store in Douglasville, Georgia, as in November 2014. In December 2014, Plaintiff
accepted a permanent position as a part-time sales associate in the men’s
department. Plaintiff was described as a “stellar associate” and as being “often in
the top sales.”
In March 2015, Plaintiff began accusing his managers and co-workers of
harassment and of discriminatory practices. On 30 March, Plaintiff met with store
manager Brenita Britt, sales team manager (and Plaintiff’s supervisor) Chrissy
Wiley, and Human Resources (“HR”) associate Madeline Grindle. Plaintiff
complained that he was being treated unfairly by two white female co-workers.
For example, one of Plaintiff’s co-workers assigned him a specific area of
responsibility, spoke rudely to Plaintiff, called Plaintiff an angry person, went to
1 We construe liberally pro se pleadings. Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998). 2 Case: 17-14839 Date Filed: 09/05/2018 Page: 3 of 16
lunch without telling Plaintiff, and left a folding table in Plaintiff’s area. Plaintiff
complained that another co-worker stole customers from him. Plaintiff said he
believed he was being discriminated against based on his gender, race, and
nationality. Plaintiff also reported that he had overheard two white sales associates
from other departments discussing a customer dispute. During the conversation,
one of the associates said “I’ll bet they were black” and asked whether the
customer had “pulled the race card.”
On 9 April, Plaintiff filed an internal complaint with Belk’s HR Department,
complaining about incidents of perceived harassment and discrimination.
Throughout April and May, Plaintiff supplemented his internal complaint by
alleging twenty more instances of supposed harassment and discrimination.
On 26 April, sales team manager Freddie Johnson (a black female) emailed
Britt to report an incident involving Plaintiff. Johnson told Britt that Plaintiff
complained to her that there was a “cult” at the store that was against him.
Johnson said that Plaintiff became defensive and outraged. Johnson reported that
she was “literally scared” by Plaintiff’s conduct and that the episode had also upset
another sales associate. About the incident, Plaintiff testified that he complained to
Johnson about being harassed and that he was upset and angry about being
harassed.
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On 29 April, Britt issued Plaintiff a written “Corrective Interview Form,”
marked “final warning.” The warning described an incident on 27 March where
Plaintiff was asked by a manager to complete a task and “became verbally
disrespectful, yelling and acted very unprofessional with management.” The
warning also described the incident between Plaintiff and Johnson, noting that
Plaintiff had been verbally disrespectful and raised his voice in anger to a manager;
Plaintiff also later approached “aggressively” the same manager complaining that
associates were talking about him. Plaintiff was advised that such conduct could
result in further disciplinary action, including termination of his employment.
On 4 May, HR Associate Grindle documented concerns that several
managers had expressed to her about their personal safety around Plaintiff. On 29
May, Plaintiff found a piece of string that he described as a “noose” in the men’s
fitting room. Plaintiff informed Britt about the “noose” and expressed concern
about his safety in the workplace.
On 5 June 2015, Plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”). He alleged he had been
subjected to discrimination and retaliated against based on his race. He claimed he
had been issued a reprimand, that his hours were reduced, that he discovered a
“noose” in the men’s fitting room, and that he was told to sign a confidentiality
agreement. Belk received Plaintiff’s EEOC charge on 15 June.
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Meanwhile -- also on 5 June -- Britt issued Plaintiff a second “Corrective
Interview Form” marked “final warning,” noting an incident in which Plaintiff got
upset and confrontational with a manager, when Plaintiff was asked to complete a
routine status check. In the comments section, Britt wrote “we have had many
conversations about your behavior. . . . This is another example of your disruptive
and disrespectful behavior.” Plaintiff was again advised that his disrespectful
behavior could result in termination of his employment.
On 20 September 2015, Amber Smith became the new store manager at the
Douglasville Belk store. On 28 September, Plaintiff met with Smith and with
Grindle to share his concerns about the alleged ongoing harassment. In late
September, Smith witnessed an incident in which Plaintiff argued with Wiley and
spoke to Wiley in a loud and disrespectful tone. On 2 October 2015, Smith
terminated Plaintiff’s employment for “gross misconduct/insubordination.”
Thereafter, Plaintiff filed a second charge of discrimination with the EEOC,
alleging discrimination and retaliation based on his sex and his race. The EEOC
issued Plaintiff a right-to-sue letter; Plaintiff then filed this civil action.
The magistrate judge recommended granting Belk’s motion for summary
judgment. Over Plaintiff’s objections, the district court adopted the magistrate
judge’s recommendation and granted summary judgment in favor of Belk.
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I.
We first address Plaintiff’s argument that the district court erred in denying
Plaintiff’s “Emergency Notice of Objection,” in which Plaintiff sought to strike
Belk’s untimely-filed motion for summary judgment. In addition to the
untimeliness of the motion, Plaintiff also complained that Belk’s lawyer contacted
the district court ex parte about “technical difficulties” encountered in filing the
motion and complained that Belk failed to attach a copy of Plaintiff’s deposition
transcript to the motion.
As an initial matter -- as Plaintiff concedes -- a motion for summary
judgment is no “pleading” and, thus, may not be attacked by a motion to strike
under Fed. R. Civ. P. 12(f). See 2 Moore’s Federal Practice - Civil § 12.37
(Matthew Bender 3d ed.).
That Belk’s motion for summary judgment was filed twenty minutes late is
undisputed. We have said, however, that a district court may consider an
untimely-filed motion for summary judgment if doing so is in the interest of
judicial economy. Thomas v. Kroger Co., 24 F.3d 147, 149 (11th Cir. 1994)
(finding no abuse of discretion when the district court considered a summary
judgment motion filed 24 days late).
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In denying Plaintiff’s request to strike the motion for summary judgment,
the district court explained that consideration of the motion and of Plaintiff’s
response would “best allow the court to make a reasoned determination of the
issues presented.” The district court also acknowledged -- and admonished Belk’s
lawyer for -- the procedural errors involved in filing the motion. Still, the district
court determined both that (1) Plaintiff was not prejudiced and that (2) striking the
motion for summary judgment would be unduly prejudicial to Belk given that
Belk’s lawyer was at fault. In the light of the procedural errors, however, the
district court granted Plaintiff additional time and pages with which to respond to
Belk’s motion.
No abuse of discretion taints the district court’s ruling. Belk’s motion was
late by mere minutes, and judicial economy favored the district court’s
consideration of the motion. Moreover, because Plaintiff was granted additional
time to respond, he has failed to show that he was unduly prejudiced as a result.
II.
We review de novo the district court’s grant of summary judgment. Ave.
CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287, 1293 (11th Cir. 2013). We
view the evidence and draw all reasonable inferences in the light most favorable to
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the non-moving party. Id. at 1294. In considering a motion for summary
judgment, courts “must avoid weighing conflicting evidence or making credibility
determinations.” Id.
First, we reject Plaintiff’s assertion that the magistrate judge and the district
court “cherry-picked” the evidence or construed improperly the evidence in favor
of Belk. The district court need not accept Plaintiff’s factual allegations that are
based only on speculation and conjecture. See id. (in considering a motion for
summary judgment, “[a]ll reasonable inferences arising from the undisputed facts
should be made in favor of the nonmovant, but an inference based on speculation
and conjecture is not reasonable.”).
A. Discrimination
Title VII makes it unlawful for an employer to discriminate on the basis of
an employee’s race or sex. 42 U.S.C. § 2000e-2(a)(1). The elements of a section
1981 claim in the employment context are the same as the elements of a Title VII
claim. Rice-Lamar v. City of Ft. Lauderdale, 232 F.3d 836, 843 n.11 (11th Cir.
2000). Plaintiff bears the ultimate burden of proving -- by a preponderance of the
evidence -- that Belk discriminated unlawfully against him. See Crawford v.
Carroll, 529 F.3d 961, 975 (11th Cir. 2008).
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In evaluating Plaintiff’s claim for discrimination -- a claim Plaintiff said
expressly was based on “mixed-motives” -- the district court applied the standard
applicable to a “mixed-motives” case based on circumstantial evidence.2 Under
that standard, Plaintiff must offer evidence sufficient for a reasonable factfinder to
conclude that (1) Plaintiff suffered an adverse employment act; and (2) Plaintiff’s
race or sex was a motivating factor for the adverse employment decision. See
Quigg v. Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1239 (11th Cir. 2016). Plaintiff
alleges three adverse employment acts: the issuance of the “final warnings,” his not
being considered for a full-time position, and the termination of his employment.
The record demonstrates that Britt issued both “final warnings” in response
to Plaintiff’s unprofessional and disrespectful conduct toward management.
Although Plaintiff asserts broadly that management avoided disciplining white
female employees, he presented no evidence of other employees -- of whatever
race or sex -- who engaged in similar disrespectful conduct and who received no
discipline. Plaintiff also presented no evidence contradicting Smith’s testimony
2 Plaintiff now challenges the district court’s use of the “mixed-motives” standard and contends the district court should have applied the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 93 S. Ct. 1817 (1973). Because we conclude that Plaintiff failed as a matter of law to prove discrimination under a mixed-motives theory, he necessarily would be unable to satisfy the more burdensome standard under the McDonnell Douglas framework. For example -- as the district court noted -- Plaintiff has identified no similarly-situated employee outside his protected class who was treated more favorably. Plaintiff has also failed to produce sufficient evidence from which a reasonable factfinder could conclude that Belk’s asserted legitimate, nondiscriminatory reason for its adverse employment decisions were a pretext for unlawful discrimination. For background, see Brooks v. Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160 (11th Cir. 2006). 9 Case: 17-14839 Date Filed: 09/05/2018 Page: 10 of 16
that, under certain circumstances, for a manager to issue a final written warning
without first giving a verbal warning might be appropriate. Evidence also exists
that Britt had spoken with Plaintiff about his conduct before issuing him a written
warning.
Plaintiff next contends that Belk’s discriminatory animus is demonstrated by
evidence that Belk filled two full-time positions with white females. The record
shows that both women were already full-time employees who transferred from
other departments. Both women (who had worked for Belk for 3 years and for 7
years) also had seniority over Plaintiff, who had only been employed by Belk for
less than a year. Under these circumstances, that the full-time positions were filled
with white women is not enough by itself to draw a reasonable inference of
discrimination.
Plaintiff has also failed to demonstrate that his race or sex was a motivating
factor in the decision to terminate his employment. Smith says she decided to fire
Plaintiff after witnessing him speaking to another manager in what Smith
perceived to be a disrespectful tone: behavior that Plaintiff had already been twice
warned could result in termination of his employment. Although Plaintiff disputes
Smith’s perception that he behaved in a disrespectful way, he does not dispute
either that he had a disagreement with Wiley (the other manager) or that he had a
documented history of disrespectful conduct toward management. Plaintiff has
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presented no evidence from which a reasonable factfinder could infer that
Plaintiff’s race or gender played a role in Smith’s decision.
Plaintiff has also failed to demonstrate liability based on a “cat’s paw”
theory. Under a “cat’s paw” theory, liability may be established if the plaintiff
shows that the decisionmaker merely “followed the biased recommendation [of a
non-decisionmaker] without independently investigating the complaint against the
employee.” Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir.
1999). Although Smith may have spoken with other Belk managers and HR
associates about Plaintiff’s employment history, Smith also spoke with Plaintiff
about Plaintiff's concerns about supposed alleged discrimination. Smith also
observed personally the kind of disrespectful conduct that was the subject of
Plaintiff’s earlier “final warnings.” Insufficient evidence exists that Smith was
unduly influenced by others in her decision to terminate Plaintiff’s employment.
B. Retaliation
Employers are barred from retaliating against an employee because he
opposed a practice made unlawful by Title VII (the “Opposition Clause”) or for
making a charge or participating in an investigation pursuant to Title VII (the
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“Participation Clause”). See 42 U.S.C. § 2000e-3(a); Equal Emp’t Opportunity
Comm’n v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174-75 (11th Cir. 2000).
To establish a prima facie case for retaliation under Title VII or section
1981, a plaintiff must show that he engaged in statutorily protected activity and
that he suffered a materially adverse employment act that was causally related to
the protected activity. Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1258
(11th Cir. 2012). “To establish a causal connection, a plaintiff must show that the
decision-makers were aware of the protected conduct, and that the protected
activity and the adverse actions were not wholly unrelated.” Shannon v. BellSouth
Telecomm., Inc., 292 F.3d 712, 716 (11th Cir. 2002) (quotation omitted).
Causation may be inferred when a close temporal proximity exists between the
protected activity and the materially adverse act. Thomas v. Cooper Lighting, Inc.,
506 F.3d 1361, 1364 (11th Cir. 2007). “But mere temporal proximity, without
more, must be ‘very close.’” Id.
Once a plaintiff establishes a prima facie case of retaliation, the employer
must articulate a legitimate, non-retaliatory reason for the challenged employment
act. Then, in the light of that stated reason, the burden shifts to the plaintiff to
offer evidence that the employer’s stated reason is pretextual. Brown v. Ala. Dep’t
of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010). A plaintiff must show that his
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“protected activity was a but-for cause of the alleged adverse action by the
employer.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2534 (2013).
About Plaintiff’s internal complaints of discrimination with Belk’s HR
department, the district court determined that Plaintiff had failed to offer evidence
that he had a reasonable, good faith belief of discrimination and failed to show that
the complained-of conduct was motivated unlawfully by a discriminatory animus.
When asserting a retaliation claim under Title VII’s Opposition Clause, a
plaintiff must show both “that he subjectively (that is, in good faith) believed that
his employer was engaged in unlawful employment practices, [and] that his belief
was objectively reasonable in light of the facts and record presented.” Butler v.
Ala. DOT, 536 F.3d 1209, 1213 (11th Cir. 2008) (emphasis in original).
Plaintiff’s internal complaints stemmed chiefly from everyday
disagreements with his co-workers. The Supreme Court has stressed that Title VII
provides no protection against “those petty slights or minor annoyances that often
take place at work and that all employees experience.” Burlington N. & Santa Fe
Ry. v. White, 126 S. Ct. 2405, 2415 (2006).
Only two of Plaintiff’s complained-of incidents seem to have a connection to
race: (1) that Plaintiff overheard a sales associate from another department ask
whether a customer was black and had “pulled the race card;” and (2) Plaintiff’s
finding what looked like a “noose” in the fitting room. Plaintiff cannot, however,
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demonstrate an objectively reasonable belief that either of these incidents
constituted unlawful discrimination by Belk. We have said that “a racially
derogatory remark by a co-worker, without more, does not constitute an unlawful
employment practice under the opposition clause of Title VII . . . , and opposition
to such a remark, consequently, is not statutorily protected conduct.” Butler, 536
F.3d at 1213. About the perceived “noose,” no evidence exists about the identity
of the person who left it in the fitting room, including whether the person that left it
was even a Belk employee, as opposed to a customer or the like. Because
Plaintiff’s internal complaints to Belk’s HR Department constitute no statutorily
protected activity, Plaintiff has failed to establish a prima facie case of retaliation
under the Opposition Clause.
Plaintiff has also failed to satisfy his burden of proving retaliation based on
his filing of an EEOC complaint. Because Plaintiff’s two “final warnings” (dated
29 April and 5 June) were issued before Belk first became aware of Plaintiff’s
EEOC charge on 15 June, Plaintiff cannot demonstrate the requisite causal
connection between his protected activity and the adverse act.
Plaintiff also complains that Belk retaliated against him by assigning him
reduced hours in May and in August 2015. First, Plaintiff’s argument based on his
May work schedule fails because Plaintiff’s May hours were scheduled before
Plaintiff filed his EEOC charge in June. The record shows that Plaintiff worked
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these hours: 126 hours in February; 111 hours in March; 147 hours in April; 93
hours in May; 169 hours in June; 114 hours in July; and 100 hours in August.
Because Plaintiff’s work hours for August 2015 were within the range of hours
Plaintiff had been assigned to work in other months -- both before and after his
EEOC complaint was filed -- he can demonstrate no causal connection between his
scheduled work hours and his EEOC complaint.
Plaintiff has also failed to produce evidence sufficient for a reasonable
factfinder to infer a causal connection between the filing of his EEOC complaint
and the termination of his employment. Nearly four months elapsed between the
filing of the EEOC complaint in June and Plaintiff’s termination in October: the
two events are too far removed in time to infer a causal connection based on
temporal proximity. See Thomas, 506 F.3d at 1364 (noting that three to four
months between the protected activity and the adverse employment act is not
enough, by itself, to establish a causal connection).
Plaintiff argues that a causal connection can be inferred based on the
temporal proximity between Smith first becoming aware of Plaintiff’s EEOC
charge and her decision to fire him. Even to the extent Plaintiff could establish a
prima facie case of retaliation based on the timing of Smith’s involvement,
Plaintiff has failed to present evidence sufficient to demonstrate that Smith’s
proffered reason for terminating his employment -- gross
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misconduct/insubordination -- was a pretext for unlawful retaliation. Plaintiff has
not rebutted head-on Smith’s testimony that she decided to fire Plaintiff after she
witnessed a dispute between Plaintiff and another manager: conduct that Plaintiff
had been warned could result in termination of his employment. See Crawford v.
City of Fairburn, Ga., 482 F.3d 1305, 1308 (11th Cir. 2007) (to demonstrate
pretext, a “plaintiff must meet the reason proffered head on and rebut it.”).
AFFIRMED.