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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-14178
Non-Argument Calendar
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D.C. Docket No. 8:16-cv-00912-JSM-JSS
DEE RUSSELL,
Plaintiff-Appellant,
versus
CITY OF TAMPA, FLORIDA,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 8, 2018)
Before MARCUS, ROSENBAUM, and NEWSOM, Circuit Judges.
PER CURIAM:
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Dee Russell appeals the district court’s grant of summary judgment in favor
of the City of Tampa, his former employer, in his employment discrimination suit
alleging unlawful retaliation in violation of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12203, and the Florida Civil Rights Act of 1992 (“FCRA”),
Fla. Stat. § 760.10(7). Russell contends that he was terminated in retaliation for
subpoenaing and deposing the City’s Director of Solid Waste in the course of an
earlier ADA suit against the City. The City maintains that it terminated Russell for
lying in violation of City policy. On appeal, Russell argues that the district court
erred in finding, under McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973),
that he had not established that the City’s legitimate, non-retaliatory reason for
firing him was pretextual.1 The facts are known the parties and counsel; we will
not repeat them here. After careful review, we affirm.
We review a district court’s grant of summary judgment de novo. Thomas v.
Cooper Lighting, Inc.,
506 F.3d 1361, 1363 (11th Cir. 2007). Summary judgment
is appropriate “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). In determining whether the movant has met this burden, we view the
1
Russell also asserts, for the first time on appeal, that the district court should have applied the
“convincing mosaic” approach from Smith v. Lockheed-Martin,
644 F.3d 1321 (11th Cir. 2011),
when assessing whether he met his burden against the City’s summary judgment motion. We
decline to address this argument because he failed to raise it before the district court. See Access
Now, Inc. v. Sw. Airlines Co.,
385 F.3d 1324, 1331 (11th Cir. 2004).
2
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evidence and all factual inferences in the light most favorable to the non-moving
party. Herzog v. Castle Rock Entm’t,
193 F.3d 1241, 1246 (11th Cir. 1999).
Retaliation claims under both the ADA and FCRA follow the analysis under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–3(a). See Harper v.
Blockbuster Entm’t Corp.,
139 F.3d 1385, 1389-90 (11th Cir. 1998) (applying Title
VII analysis to an FCRA retaliation claim); see also Stewart v. Happy Herman’s
Cheshire Bridge, Inc.,
117 F.3d 1278, 1287 (11th Cir. 1997) (applying Title VII
elements in an ADA retaliation claim). Title VII protects an employee against
retaliation by her employer on the ground that the employee has (1) opposed any
practice prohibited by Title VII, or (2) made a charge of unlawful employment
practice or participated in any investigation or proceeding under Title VII. See 42
U.S.C. § 2000e-3(a); EEOC v. Total Sys. Servs., Inc.,
221 F.3d 1171, 1174 (11th
Cir. 2000). A prima facie case of retaliation under Title VII requires the plaintiff
to show (1) that he engaged in a protected activity; (2) that he suffered an
adverse employment action; and (3) that there was a causal relation between the two
events.
Thomas, 506 F.3d at 1363.
Where it rests solely on circumstantial evidence, courts may assess a
retaliation claim according to the burden-shifting framework in McDonnell
Douglas. Brown v. Ala. Dep’t of Transp.,
597 F.3d 1160, 1181 (11th Cir. 2010)
(en banc). Under this standard, once a prima facie retaliation case is established,
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the defendant bears the burden of producing a legitimate, non-discriminatory
reason for the adverse employment action.
Id. If a legitimate reason is produced,
then the plaintiff must show that this reason is a pretext for retaliation.
Id. at
1181–82.
For the employer’s reason to be a pretext for retaliation, the plaintiff must
show “both that the [stated] reason was false, and that discrimination was the real
reason.” St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 515 (1993). Conclusory
allegations, “without more, are not sufficient to raise an inference of pretext.”
Furcron v. Mail Ctrs. Plus, LLC,
843 F.3d 1295, 1313 (11th Cir. 2016) (internal
quotations omitted). Instead, a plaintiff must produce evidence that reveals “such
weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the
employer’s proffered legitimate reasons for its actions that a reasonable factfinder
could find them unworthy of credence.”
Id. (internal quotations omitted). The
plaintiff must meet the employer’s reason “head on and rebut it.” Chapman v. AI
Transp.,
229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).
Here, the district court did not err in granting summary judgment to the City.
The district court assumed arguendo that Russell had met the elements of a prima
facie retaliation case, and we will do the same. But even so, Russell has not shown
that the City’s reason for firing him was false and that the real reason was
retaliation. See St. Mary’s Honor
Ctr., 509 U.S. at 515. As an initial matter,
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Russell failed to sufficiently dispute―or rebut “head-on”―the City’s proffered
reason for firing him. See
Chapman, 229 F.3d at 1030. But even assuming Russell
had sufficiently disputed falsity, he failed to establish that the real reason for his
termination was retaliation for deposing the Director. Russell presented only
conclusory allegations that being deposed upset the Director based on his poor
body language and facial expressions while being deposed. Russell did not
contradict or show sufficient implausibilities in the City’s proffered explanation for
terminating his employment to show that he was actually terminated because of
retaliation. See St. Mary’s Honor
Ctr., 509 U.S. at 515;
Furcron, 843 F.3d at
1313. And his conclusory allegations, without more, are insufficient to establish
pretext. See
Furcron, 843 F.3d at 1313. Accordingly, we affirm.
AFFIRMED.
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