USCA11 Case: 22-10333 Document: 31-1 Date Filed: 01/30/2023 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10333
Non-Argument Calendar
____________________
MICHAEL SHINE,
Plaintiff-Appellant,
versus
UNIVERSITY OF ALABAMA - BIRMINGHAM,
Defendant-Appellee,
KATHY LITZINGER,
Defendant.
____________________
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2 Opinion of the Court 22-10333
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:18-cv-02093-CLM
____________________
Before WILSON, BRANCH, and BRASHER, Circuit Judges.
PER CURIAM:
Michael Shine, Tony Ellis, and Lewis Thomas, Afri-
can‑American males, appeal from the district court’s grant of sum-
mary judgment in favor of their employer, the University of Ala-
bama Birmingham (UAB), on their clams of race-based disparate
treatment, disparate impact, and hostile work environment under
Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C.
§ 2000e‑2 et seq. They argue that the district court erred by not
reviewing their disparate treatment claims “holistically” when ap-
plying the McDonnell Douglas1 framework, and by giving “short
shrift” to the convincing mosaic framework. They also argue that
the district court erred by ignoring evidence showing that UAB’s
reclassification practice had a disparate impact on African-Ameri-
can employees. Finally, they argue that the district court erred by
crediting UAB’s corrective action efforts over Ellis’ testimony, and
that they established there was a hostile work environment based
on an employee showing Ellis a gun at work.
1 McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973).
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22-10333 Opinion of the Court 3
I.
We review de novo a district court’s order granting sum-
mary judgment, drawing all reasonable inferences in the light most
favorable to the nonmoving party. Bowen v. Manheim Remarket-
ing, Inc.,
882 F.3d 1358, 1362 (11th Cir. 2018). Summary judgment
may be granted only if “there is no genuine dispute as to any ma-
terial fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “A genuine issue of material fact exists
when the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Bowen,
882 F.3d at 1362 (quo-
tation marks omitted).
An issue not raised on appeal will be deemed abandoned and
will only be addressed in extraordinary circumstances. United
States v. Campbell,
26 F.4th 860, 872–73 (11th Cir. 2022) (en banc)
(addressing abandonment in a criminal matter), cert. denied,
143 S.
Ct. 95 (2022) (Mem.). Further, “[t]o 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 judg-
ment against him is incorrect.” Sapuppo v. Allstate Floridian Ins.
Co.,
739 F.3d 678, 680 (11th Cir. 2014). “When an appellant fails to
challenge properly on appeal one of the grounds on which the dis-
trict court based its judgment, he is deemed to have abandoned any
challenge of that ground, and it follows that the judgment is due to
be affirmed.”
Id.
A plaintiff can defeat a summary judgment motion on a Title
VII disparate treatment claim by satisfying the elements of the
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McDonnel Douglas framework or by presenting a “convincing mo-
saic” of circumstantial evidence that “raises a reasonable inference
that the employer discriminated against [him].” Smith v. Lock-
heed-Martin Corp.,
644 F.3d 1321, 1328 (11th Cir. 2011). Under the
McDonnell Douglas framework, the plaintiff must first establish a
prima facie case of intentional discrimination, and if successful, the
burden shifts to the employer to rebut the presumption of discrim-
ination by proffering a legitimate, non-discriminatory reason for its
employment decision against the plaintiff. McDonnell Douglas
Corp. v. Green,
411 U.S. 792, 802 (1973). If the employer does so,
the burden shifts back to the plaintiff to show that the employer’s
stated reason was in fact pretext.
Id. at 804.
To establish a prima facie case of intentional discrimination
in compensation, a plaintiff must establish that (1) he “belongs to a
racial minority;” (2) he received low wages; (3) “similarly situated
comparators outside the protected class received higher compen-
sation;” and (4) he “was qualified to receive the higher wage.”
Cooper v. S. Co.,
390 F.3d 695, 734–35 (11th Cir. 2004), overruled
on other grounds by Ash v. Tyson Foods, Inc.,
546 U.S. 454, 457–
58 (2006). The plaintiff must establish that he and any comparator
that he provides are “similarly situated in all material respects.”
Lewis v. City of Union City, Ga.,
918 F.3d 1213, 1226 (11th Cir.
2019) (en banc). Determining whether a comparator is similarly
situated in all material respects requires a case‑by‑case analysis
based on the context of the individual circumstances.
Id. at 1227.
“[A] plaintiff and [his] comparators must be sufficiently similar, in
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22-10333 Opinion of the Court 5
an objective sense, that they cannot reasonably be distinguished.”
Id. at 1228 (quotation marks omitted). Thus, ordinarily a similarly
situated comparator: (1) “will have engaged in the same basic con-
duct (or misconduct) as the plaintiff”; (2) “will have been subject to
the same employment policy, guideline, or rule as the plaintiff;” (3)
will ordinarily (although not invariably) have been under the juris-
diction of the same supervisor as the plaintiff”; and (4) “will share
the plaintiff's employment or disciplinary history.”
Id. at 1227–28.
To establish a prima facie case for a failure‑to‑promote
claim, a plaintiff must show that (1) he is a member of a protected
class; (2) he “was qualified for and applied for a position that the
employer was seeking to fill;” (3) he was rejected despite his quali-
fications; and (4) the employer hired another individual who was
not a member of the protected class. Vessels v. Atlanta Indep. Sch.
Sys.,
408 F.3d 763, 768 (11th Cir. 2005) (per curiam). A non‑appli-
cant may also establish a prima facie case if he shows that he had a
justifiable belief that applying was futile by demonstrating “(1) that
[]he had a real and present interest in the job for which the em-
ployer was seeking applications; and (2) that []he would have ap-
plied for the job but effectively was deterred from doing so by the
employer’s discriminatory practices.” E.E.O.C. v. Joe’s Stone
Crabs, Inc.,
296 F.3d 1265, 1274 (11th Cir. 2002) (per curiam).
Alternatively, a plaintiff can establish a convincing mosaic
by pointing to evidence that demonstrates (1) suspicious timing,
ambiguous statements, or other information from which discrimi-
natory intent may be inferred; (2) “systematically better treatment
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6 Opinion of the Court 22-10333
of similarly situated employees;” and (3) pretext. Lewis v. City of
Union City, Ga.,
934 F.3d 1169, 1185 (11th Cir. 2019) (on remand
to panel following hearing en banc).
As an initial matter, because the plaintiffs failed to brief the
issues, they have abandoned any challenge on appeal to the dismis-
sal of their
42 U.S.C. § 1981 claims, Shine’s claims regarding termi-
nation and disciplinary actions, Ellis’ claims regarding training op-
portunities, Thomas’ claims regarding pay or performance re-
views, and any claims of retaliation. Thomas also has abandoned
any challenge to the district court’s finding that all but one of the
factual bases for his disparate-treatment-in-promotion claim were
time‑barred. Accordingly, we do not address these claims.
II.
Turning to the disparate treatment claims, the district court
did not err in granting summary judgment on the plaintiffs’
race‑based disparate treatment claims because it was not required
to review them “holistically” as the plaintiffs contend. The district
court applied the proper legal frameworks, and each plaintiff failed
to establish either a prima facie case or a convincing mosaic of cir-
cumstantial evidence for their claims. Specifically, Shine did not
provide a proper comparator who worked in a similar role; Ellis
did not name a position for which he was qualified, applied, and
from which he was rejected; and Thomas named a position for
which he was qualified and applied, but UAB never gave anyone
else the position. Further, none of the plaintiffs otherwise provided
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22-10333 Opinion of the Court 7
sufficient evidence from which discriminatory intent may be in-
ferred under a convincing mosaic theory. We therefore affirm.
III.
Next, we turn to the disparate impact claims. It is improper
to assert, in a brief opposing summary judgment, a new theory of
liability based on unpled factual predicates in support of an already
pled claim. Dukes v. Deaton,
852 F.3d 1035, 1046 (11th Cir. 2017).
Further, “grounds alleged in the complaint but not relied upon in
summary judgment are deemed abandoned.” Resol. Tr. Corp. v.
Dunmar Corp.,
43 F.3d 587, 599 (11th Cir. 1995).
Here, the district court concluded that the plaintiffs had
abandoned their disparate impact claims by impermissibly raising
a new theory at summary judgment, and the plaintiffs do not chal-
lenge that finding on appeal. Accordingly, we may affirm on that
basis and need not reach the merits of their disparate impact claims.
IV.
Finally, we turn to the Title VII harassment (or hostile work
environment) claim. A hostile work environment can be estab-
lished by showing that “the workplace is permeated with discrimi-
natory intimidation, ridicule, and insult, that is sufficiently severe
or pervasive to alter the conditions of the victim’s employment and
create an abusive working environment.” Miller v. Kenworth of
Dothan, Inc.,
277 F.3d 1269, 1275 (11th Cir. 2002) (quotation marks
omitted). The alleged behavior must result “in both an environ-
ment that a reasonable person would find hostile or abusive and an
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environment that the victim subjectively perceive[s] . . . to be abu-
sive.”
Id. at 1276 (quotation marks omitted, alterations in original).
In evaluating the objective severity of the harassment, we look at
the totality of the circumstances and consider, inter alia, “(1) the
frequency of the conduct; (2) the severity of the conduct; (3)
whether the conduct is physically threatening or humiliating, or a
mere offensive utterance; and (4) whether the conduct unreasona-
bly interferes with the employee’s job performance.”
Id. Isolated
or sporadic incidents of harassment are not objectively severe or
pervasive enough to alter the terms or conditions of employment.
McCann v. Tillman,
526 F.3d 1370, 1379 (11th Cir. 2008).
As an initial matter, the plaintiffs have not sufficiently chal-
lenged the district court’s ruling that they abandoned all factual ba-
ses of their hostile work environment claim except one incident in-
volving a gun. Accordingly, we can only consider this gun incident
on appeal.
The gun incident, according to Ellis’ testimony, occurred be-
tween 2015 and 2017 when a white employee pulled up his shirt to
reveal a loaded handgun in Ellis’ presence. The employee did not
point the handgun at Ellis, and Ellis could not recall what the em-
ployee said at that time. This single incident, Ellis argues on appeal,
is sufficiently severe to survive summary judgment.
While we agree with Ellis that the presence of a weapon—
particularly a gun—weighs heavily on the severity factor, a single
incident absent any allegation of threat, interference with job per-
formance, or repetition is not enough to meet the criteria of
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objective severity. Absent additional factual allegations, we find
the district court did not err in granting summary judgment on El-
lis’ harassment claim. We therefore affirm as to this issue.
AFFIRMED.
