Timothy Blue v. Dunn Construction Company, Inc , 453 F. App'x 881 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
U.S.
________________________ ELEVENTH CIRCUIT
NOVEMBER 23, 2011
No. 10-14345 JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 2:09-cv-00864-WMA
TIMOTHY BLUE,
Plaintiff-Appellant,
versus
DUNN CONSTRUCTION COMPANY, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(November 23, 2011)
Before TJOFLAT, CARNES and ANDERSON, Circuit Judges.
PER CURIAM:
Timothy Blue appeals following entry of summary judgment in favor of the
defendant, Dunn Construction Company, Inc. (“Dunn”), on his employment
discrimination and retaliation claims under Title VII of the Civil Rights Act of
1964, 42 U.S.C. §§ 2000e-2(a) and -3(a), and under 42 U.S.C. § 1981.1 He argues
that the district court erred by finding that his delayed promotion did not constitute
an adverse employment action and that he failed to demonstrate Dunn’s proffered
non-discriminatory reason for delaying his promotion was pretextual. He also
argues that the district court erred by finding that he failed to show that the reason
Dunn gave for subsequently demoting him was pretextual. Upon review of the
record and consideration of the parties’ briefs, we affirm. We address each
contention in turn.
I.
“This court reviews a district court’s grant of summary judgment de novo,
applying the same legal standards used by the district court.” Galvez v. Bruce,
552 F.3d 1238, 1241 (11th Cir. 2008). Summary judgment is appropriate where
“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); Swisher Int’l., Inc. v. Schafer,
550 F.3d 1046, 1050 (11th Cir. 2008). “A mere ‘scintilla’ of evidence supporting
1
Blue offers no argument with respect to his retaliation claim and his
discrimination claim based on the denial of assistance to perform his duties. Those claims are
thereby waived, and we decline to address them. See Mize v. Hall, 532 F.3d 1184, 1189 n.3
(11th Cir. 2008).
2
the opposing party’s position will not suffice; there must be enough of a showing
that the jury could reasonably find for that party.” Brooks v. Cnty. Comm’n, 446
F.3d 1160, 1162 (11th Cir. 2006).
Under Title VII, it is unlawful for an employer “to discriminate against any
individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race.” 42 U.S.C. § 2000e-2(a). Under
42 U.S.C. § 1981(a), “[a]ll persons within the jurisdiction of the United States
shall have the same right . . . to make and enforce contracts . . . as is enjoyed by
white citizens.” 42 U.S.C. § 1981(a). Claims of race discrimination are
cognizable under both Title VII and § 1981, and they “have the same requirements
of proof and use the same analytical framework.” Standard v. A.B.E.L. Servs.,
Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). Accordingly, we address Blue’s Title
VII claim with the understanding that the same analysis applies to his § 1981
claims.2
A plaintiff may establish a Title VII claim through the introduction of direct
evidence of discrimination or circumstantial evidence that creates an inference of
2
Even though Blue’s delayed promotion claim was time-barred under Title VII
because he filed his EEOC charge more than 180 days after he was promoted, it was nevertheless
cognizable under § 1981 because he filed his charge within four years of his promotion. See
Calloway v. Partners Nat’l Health Plans, 986 F.2d 446, 448 (11th Cir. 1993).
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discrimination. Hinson v. Clinch Cnty., Ga. Bd. of Educ., 231 F.3d 821, 827 (11th
Cir. 2000).3 In an employment discrimination case such as this one, where the
plaintiff relies on circumstantial evidence, we apply the McDonnell-Douglas4
burden-shifting framework. Crawford v. Carroll, 529 F.3d 961, 975-76 (11th Cir.
2008). Under this analysis, the plaintiff can establish a prima facie case of
disparate treatment by showing that: (1) he is a member of a protected class, (2) he
was subject to an adverse employment action, (3) his employer treated similarly
situated employees who were not members of his protected class more favorably,
and (4) he was qualified to do the job. Burke-Fowler v. Orange Cnty., 447 F.3d
1319, 1323 (11th Cir. 2006). If the plaintiff satisfies the four elements of a prima
facie case of disparate treatment, and the employer proffers a legitimate,
non-discriminatory reason for its employment action, the plaintiff must then show
that the reason “is a pretext for unlawful discrimination.” Id.We have determined that an “adverse employment action” includes
“termination, failure to hire, or demotion.” Crawford, 529 F.3d at 970. An
employer’s conduct falling short of those actions “must, in some substantial way,
3
Because Blue does not challenge the district court’s finding that no direct
evidence of race discrimination existed, the only dispute is whether Blue presented sufficient
circumstantial evidence to avoid summary judgment on his delayed promotion claim under §
1981. See Pennington v. City of Huntsville, 261 F.3d 1262, 1265 (11th Cir. 2001).
4
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).
4
alter the employee’s compensation, terms, conditions, or privileges of
employment, deprive him or her of employment opportunities, or adversely affect
his or her status as an employee.” Id. (quotations and alterations omitted). With
regard to the level of substantiality required, the plaintiff must demonstrate that he
“suffered a serious and material change in the terms, conditions, or privileges of
employment.” Id. at 970-71 (quotation omitted) (emphasis in original).
It is uncontested that Dunn’s practice was to place an employee who was
being considered for a promotion in an “acting foreman” role for an indeterminate
trial period, during which the employee would be evaluated for suitability. An
acting foreman is not a salaried employee but is assured of forty hours’ worth of
wages regardless of weather conditions, a benefit not given to regular workers.
Acting foremen are also entitled to overtime wages, which not even permanent
foremen are awarded. Blue remained as an acting foreman for fifteen months and,
due to overtime, earned an annual wage higher than that of a permanent foreman.
He claims that he was subjected to an adverse employment action because Dunn
unreasonably delayed his promotion to permanent foreman on account of his race.
In support, Blue presented evidence that two white acting foremen were promoted
sooner than he was, one after serving in the acting role for nine months and the
other, by Blue’s accounting, for less than a year.
5
This circuit has not yet determined whether a delayed promotion can satisfy
the adverse employment action prong. See Pennington v. City of Huntsville, 261
F.3d 1262, 1266 (11th Cir. 2001). Dunn did not have a company policy about the
length of the evaluation period, meaning that Blue could not show unreasonable
delay in promoting him, based on a deviation from company policy. The length of
the trial period depends on the employee’s performance as acting foreman, and
Blue was an acting foreman for only a few months longer than the two white
acting foremen. Thus, like the Pennington court, we have “considerable doubt
about whether [Blue] can satisfy . . . the adverse employment action prong.” Id.Even assuming arguendo that he has established a prima facie case, he did
not rebut Dunn’s non-discriminatory reason for the delay. A plaintiff will
withstand summary judgment by demonstrating “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder
could find them unworthy of credence.” Jackson v. Ala. State Tenure Comm’n,
405 F.3d 1276, 1289 (11th Cir. 2005). “[A] reason cannot . . . be a ‘pretext for
discrimination’ unless it is shown both that the reason was false, and that
discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
515, 113 S. Ct. 2742, 2752, 125 L.Ed.2d 407 (1993) (emphases in original).
6
As noted by the district court, non-discriminatory reasons supporting
Dunn’s decisions to delay the promotion are: (1) Blue’s 2006 performance
evaluation, which reflected poor performance in three-out-of-five major
responsibility categories and showed that he failed to score “Good” or “Excellent”
in any of ten overall categories; (2) the fact that the two white acting foremen who
were promoted more quickly both scored higher than Blue on their performance
evaluations; and (3) Blue’s repeated difficulty in managing his crew, leading his
supervisors to keep him as an acting foreman in the hopes of improvement. If
anything, Dunn’s decisions to delay promotion seem focused on ensuring that
Blue be given an adequate chance to improve his performance and avoid being
demoted, rather than seeking to indefinitely prevent a further promotion on
account of his race. Blue failed to rebut these non-discriminatory reasons for
delaying his promotion. The district court properly granted summary judgment on
this claim.
II.
Next, Blue contends that Dunn subsequently promoted him to permanent
foreman, only to demote him back to a regular asphalt worker on account of his
race. As discussed above, a plaintiff may establish a prima facie case of
discriminatory demotion by showing that (1) he belongs to a protected class, (2) he
7
was subject to an adverse employment action, (3) the employer treated similarly
situated employees not of the protected class more favorably, and (4) he was
qualified for the job. Burke-Fowler, 447 F.3d at 1323. If a plaintiff establishes a
prima facie case of discrimination, the burden shifts to the employer to articulate
some legitimate, non-discriminatory reason for demotion. Id. If the employer
identifies legitimate reasons, the burden shifts back to the plaintiff to establish that
the employer’s articulated reason is a mere pretext for discrimination. Id. The
plaintiff “must meet [the proffered reason] head on and rebut it.” Chapman v. AI
Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).
If a plaintiff attempts to show pretext by comparing his own treatment to the
employer’s treatment of similarly situated employees outside of his class, his
comparators must be “similarly situated in all relevant aspects.” Holifield v. Reno,
115 F.3d 1555, 1562 (11th Cir. 1997). Employees are “similarly situated” if they
are involved in the same or similar conduct and are disciplined in different ways.
Rioux v. City of Atlanta, 520 F.3d 1269, 1280 (11th Cir. 2008) (quotation
omitted). We have held that a “comparator must be nearly identical to the plaintiff
to prevent courts from second-guessing a reasonable decision by the employer.”
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004).
Assuming arguendo that the district court properly concluded that Blue
8
established a prima facie case of discrimination, Blue still fails to present evidence
that could lead a reasonable factfinder to conclude that Dunn’s stated reasons for
his demotion—poor performance and failure to control his crew—were pretext for
race discrimination. Specifically, Blue did not show that Dunn’s proffered reasons
were false. See Hicks, 509 U.S. at 515, 113 S. Ct. at 2752. The person who
demoted Blue was the same one who had previously promoted him. Also, the
evaluation of Blue’s 2007 performance contained negative remarks about the
number of call-backs on his projects, his inability to focus on quality, the low
amount of work his crew accomplished in a typical day, his inability to supervise
his crew, and the crew taking advantage of his friendly relations with them. Total
ratings of less than “acceptable performance” in three of the five major job
responsibilities reflected little improvement from 2006. The only other foreman
with scores as low as Blue’s was Tim Fallin, who is white and was demoted in
2007, then fired in 2008. The evaluation, which Blue signed after discussing it
with his supervisors, noted that Blue had “not significantly improved in 2007.
[Dunn] will put someone helping [Blue] with his crew and monitor whether this
helps. If it does not, then we have no choice but to make a change and place
[Blue] back as an operator.” Blue does not dispute that, in December 2007,
General Superintendent Billy Joe Nichols and Blue’s immediate supervisor,
9
Wayne Snell, who is African American, verbally warned him that he faced
demotion if he did not take better charge of his crew. Given all this evidence,
Blue failed to show that Dunn’s proffered reason for demotion contained “such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions . . .
that a reasonable factfinder could find them unworthy of credence.” Jackson, 405
F.3d at 1289.5
Furthermore, Blue failed to show pretext by comparing his own treatment to
Dunn’s treatment of similarly situated white employees. See Holifield, 115 F.3d
at 1562. His performance scores were worse than his comparators’. And while
Blue’s comparators had criminal records, had failed drug tests, or had failed to
5
Blue also argues that the real reason Dunn demoted him was because a member of
Blue’s crew damaged a building with paving equipment. See Cleveland v. Home Shopping
Network, Inc., 369 F.3d 1189, 1194 (11th Cir. 2004) (holding that evidence of pretext can
include where an employer gives “shifting” reasons for an employment decision). As the district
court noted, such an accident by itself “would not normally be cause for the demotion of a
Foreman.”
To support this contention, Blue offered the testimony of Snell and Matt Albright. Snell
did discuss the job-site accident at the same time he discussed Blue’s demotion, but when Snell
was directly asked why Blue was demoted, Snell said, “Because I don’t think he was – he didn’t
take charge of his crew was the main thing. As far as running his crew hisself. Making all the
shot calls and driving and pushing. He wasn’t – he wasn’t doing that.”
One of Blue’s crew members had told Albright that Blue was demoted because of the
accident. Even if the district court could consider this hearsay, see Pritchard v. S. Co. Servs., 92
F.3d 1130, 1135 (11th Cir. 1996), it does not help Blue’s case because it merely establishes what
one of Blue’s own crew members thought about Blue’s demotion. It does not provide evidence
of why Blue’s supervisors demoted him. See Steger v. General Electric Co., 318 F.3d 1066,
1079 (11th Cir. 2003) (holding that “statements made by nondecisionmakers” do not demonstrate
discriminatory intent).
10
wear their uniforms, none of them had been evaluated as failing to control their
crew or producing poor quality work. The “quantity and quality of the
comparator’s misconduct [must] be nearly identical [to the plaintiff’s] to prevent
courts from second-guessing employers’ reasonable decisions and confusing
apples with oranges.” Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999).
Here, Blue’s comparators were not charged with the same kind of misconduct that
he was.
We do not analyze “whether employment decisions are prudent or fair.
Instead, our sole concern is whether unlawful discriminatory animus motivates a
challenged employment decision.” Damon v. Fleming Supermarkets of Fla., Inc.,
196 F.3d 1354, 1361 (11th Cir. 1999). Since there was no unlawful animus, the
district court properly granted summary judgment on this claim.
AFFIRMED.6
6
Appellant’s motion to file reply brief out of time is GRANTED.
11