USCA11 Case: 20-13496 Date Filed: 02/15/2022 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13496
Non-Argument Calendar
____________________
PAUL MUIGAI,
Plaintiff-Appellant,
versus
UNITED PARCEL SERVICE,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:17-cv-03184-TCB
____________________
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2 Opinion of the Court 20-13496
Before ROSENBAUM, LUCK, and LAGOA, Circuit Judges.
PER CURIAM:
Paul Muigai appeals the district court’s grant of summary
judgment in favor of his former employer, United Parcel Service
(“UPS”), on his claims of race and national-origin discrimination
and retaliation under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e-2(a), 2000e-3(a). After careful review, we affirm.
I.
UPS is a package-delivery company. In November 2011, it
promoted Muigai to the position of Technical Support Group
(“TSG”) Supervisor, after he had worked as a TSG Technician and
Senior Technician for more than seven years. As a TSG Supervi-
sor, Muigai’s job duties included, among other things, supervising
technicians, monitoring projects to make sure they were com-
pleted on time, interviewing potential candidates for the TSG de-
partment, and conducting infrastructure compliance excellence au-
dits (“excellence audits”). For the period relevant to this case, 2013
to 2015, Muigai was one of seven TSG Supervisors who reported
to South Atlantic District TSG Manager Scott Staber, who was a
Caucasian male.
Muigai claims that he was forced to resign in 2015 because
of ongoing race and national-origin discrimination and retaliation
by Staber. According to Muigai, Staber regularly provided prefer-
ential treatment to Caucasian supervisors and employees. Muigai
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20-13496 Opinion of the Court 3
contends that, as a result of Staber’s discrimination and retaliation,
UPS took several adverse employment actions against him, includ-
ing (a) assigning a major contract involving Sysco systems to an-
other supervisor; (b) placing him on a performance improvement
plan; (c) denying mileage reimbursement; (d) removing him from
supervisory duties; and (e) constructively discharging him.
UPS maintains that its actions were supported by Muigai’s
performance deficiencies, UPS policies, and other reasons, which
we will discuss in more detail below. It points to evidence showing
that, as a TSG Supervisor, Muigai consistently received unaccepta-
ble ratings on his yearly quality performance reviews. In 2012, his
first full year as TSG Supervisor, he received a rating of “Improve-
ment Needed.” Then, in 2013 and 2014, he received the lowest
rating of “Significant Improvement Needed,” which, under UPS
policy, rendered him ineligible for a year-end pay raise. UPS placed
him on a performance improvement plan after his 2013 rating.
Muigai disputes that these scores accurately reflected his perfor-
mance and points out they were controlled by Staber, the alleged
discriminator and retaliator.
The district court granted summary judgment to UPS based
on a magistrate judge’s report and recommendation. Regarding
the discrimination claims, the court found, in relevant part, that
Muigai had not established either pretext in UPS’s explanation for
its actions or a convincing mosaic of circumstantial evidence from
which a jury could infer intentional discrimination. The court ex-
plained that, while Muigai presented evidence of high performance
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4 Opinion of the Court 20-13496
on certain metrics, he failed to rebut UPS’s “copious evidence”
showing that he “had low leadership scores and needed improve-
ment in his soft skills.” As for the retaliation claims, the court con-
cluded that the Sysco reassignment position was not materially ad-
verse and that Muigai failed to establish pretext in the other deci-
sions challenged. Finally, the court found that the work environ-
ment was not sufficiently hostile to support a claim for constructive
discharge. This appeal followed.
II.
We review the district court’s summary-judgment ruling de
novo, construing the evidence and drawing all reasonable infer-
ences in favor of Muigai, the nonmoving party. Tolar v. Bradley
Arant Boult Commings, LLP,
997 F.3d 1280, 1288–89 (11th Cir.
2021). Summary judgment is appropriate if “the movant shows
that there is no genuine dispute as to any material fact and the mo-
vant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A genuine factual dispute exists if a reasonable jury could
return a verdict for the nonmoving party. Wilson v. B/E Aero-
space, Inc.,
376 F.3d 1079, 1085 (11th Cir. 2004).
III.
As relevant here, Title VII prohibits employers from dis-
criminating against employees on account of their race or national
origin. 42 U.S.C. §§ 2000e-2(a)(1). When a discrimination claim is
based on circumstantial evidence, as it is here, we ordinarily apply
the familiar burden-shifting framework established in McDonnell
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20-13496 Opinion of the Court 5
Douglas Corp. v. Green,
411 U.S. 792 (1973). Vessels v. Atlanta
Indep. Sch. Sys.,
408 F.3d 763, 767 (11th Cir. 2005).
Under that framework, the plaintiff must first create an in-
ference of discrimination by establishing a prima facie case.
Id.
The burden then shifts to the employer to articulate a legitimate,
non-discriminatory reason for the challenged employment action.
Id. If the employer does so, “the inference of discrimination drops
out of the case entirely,” and the plaintiff then has the opportunity
to prove that the employer’s proffered reasons were pretextual.
Id.
at 768. To show that an employer’s reason is not credible, the em-
ployee must meet that reason head on and rebut it; he may not
merely quarrel with the wisdom of that reason. Chapman v. AI
Transp.,
229 F.3d 1012, 1030 (11th Cir. 2000) (en banc). The plain-
tiff’s burden at the pretext stage “merges with the plaintiff’s ulti-
mate burden of persuading the court that the employer intention-
ally discriminated against [him].” Alvarez v. Royal Atl. Developers,
Inc.,
610 F.3d 1253, 1265 (11th Cir. 2010).
Alternatively, a plaintiff may defeat a summary-judgment
motion outside the McDonnell Douglas framework by presenting
“a convincing mosaic” of circumstantial evidence that raises a rea-
sonable inference that the employer discriminated against him.
Smith v. Lockheed-Martin Corp.,
644 F.3d 1321, 1328 (11th Cir.
2011). Regardless of the particular route, the “crux of the analysis”
at summary judgment is simply “whether the plaintiff has offered
sufficient evidence to establish a genuine issue of discrimination.”
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6 Opinion of the Court 20-13496
Quigg v. Thomas Cnty. Sch. Dist.,
814 F.3d 1227, 1240 (11th Cir.
2016).
Muigai contends that, in numerous areas of his job, he was
subjected to different treatment than similarly situated employees
outside his protected classes and suffered several adverse employ-
ments actions as a result. We address each claim in turn.
First, the record contradicts Muigai’s claim that Staber vio-
lated UPS policy to deny his legitimate mileage requests in Decem-
ber 2014 and January 2015. As Muigai concedes, Staber approved
his December 2014 request, and he received reimbursement. And
Staber appears to have followed UPS policy by denying the January
2015 request, because Muigai sought reimbursement for travel be-
tween “home” and “GAATL” (the Atlanta hub). Under UPS policy,
employees could receive mileage reimbursement for work-related
travel between UPS buildings, but not for travel to and from their
personal residence.
Muigai claims that the January 2015 request was for travel
between what he viewed as his “home” work location in Roswell
and the Atlanta hub, and he points to a dispute about his main work
building. Regardless of that dispute, though, we see no basis to
conclude that Staber did not honestly believe “home” referred to
Muigai’s personal home and not the Roswell facility, which
Muigai’s December 2014 request identified as “GAROS.” Nothing
in this evidence suggests that the denial was pretextual.
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20-13496 Opinion of the Court 7
Second, Muigai’s evidence does not show that the assign-
ment of the Sysco project to a Caucasian supervisor was motivated
by unlawful discrimination. Muigai claims that UPS ordinarily as-
signed projects to the supervisor “assigned to the TSG team wed
to the geographic location of the project,” which was he. But he
fails to show that the decision not to follow that general practice in
this instance was anything other than a reasonable exercise of
UPS’s business judgment. See Alvarez,
610 F.3d at 1266 (“[I]t is not
our role to second-guess the wisdom of an employer’s business de-
cisions—indeed the wisdom of them is irrelevant—as long as those
decisions were not made with a discriminatory motive.”). Another
TSG Supervisor testified that he had had projects reassigned by Sta-
ber based on the company’s needs. More to the point, the supervi-
sor who received the project testified that he had more relevant
experience with network integration for external customers than
Muigai, which was consistent with Staber’s statements to Muigai
that he lacked the skillset, ability, and attitude to do the job. Par-
ticularly given the evidence that the project required a quick-turn-
around, Muigai has presented no reason to doubt that Staber and
UPS chose the other supervisor because they believed he was bet-
ter suited for the project.
Third, Muigai has not shown that his poor performance re-
views, and resulting placement on a performance improvement
plan and denial of pay raises and bonuses, were based on an unlaw-
ful motive. Muigai argues that “his objective performance stand-
ards were among the highest under the supervision of Scott
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8 Opinion of the Court 20-13496
Staber.” As the district court explained, though, that evidence does
not meet UPS’s proffered explanation head on and rebut it. See
Chapman,
229 F.3d at 1030. The record shows that the yearly per-
formance ratings were based not only on objective factors like the
metrics Muigai cites, but also subjective factors like leadership and
interpersonal skills. And UPS’s evidence reflects that Muigai’s poor
ratings were due primarily to those subjective factors, and that
those ratings were based on more than simply Staber’s opinion.
Muigai makes no argument that these more subjective factors are
not relevant to his job, and it is not our role to second-guess an
employer’s judgment about the skills it values in supervisory em-
ployees. See Alvarez,
610 F.3d at 1266. Because Muigai merely
quarrels with UPS’s reasoning and does not address it head on and
rebut it, he has not shown pretext.
Moreover, that UPS may not have strictly followed its poli-
cies regarding performance improvement plans does not suggest
that his placement on such a plan was pretextual. And contrary to
Muigai’s current claim, the record shows he was repeatedly made
aware of the performance deficiencies identified in the perfor-
mance improvement plan.
Finally, Muigai has not established pretext with regard to
UPS’s actions when he returned from an extended leave of absence.
Muigai claims that UPS discriminated against him by removing his
subordinates and administrative access privileges and assigning
him less substantial work, when other supervisors who went on
leave were not similarly treated. But the record shows that UPS
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20-13496 Opinion of the Court 9
reassigned Muigai’s technicians so they would have a supervisor
during his absence, that the work Muigai was assigned—conduct-
ing excellence audits—was part of his job as TSG Supervisor, that
UPS policy was to disable administrative rights when an employee
went on leave for more than 30 days, and that some of Muigai’s
privileges were not restored because UPS believed he did not need
them for his current job duties. Muigai’s claim that other supervi-
sors were not treated the same is largely conclusory, as he does not
identify the length of their leave or other facts necessary to make a
meaningful comparison. See Lewis v. City of Union City,
918 F.3d
1213, 1226–27 (11th Cir. 2019) (en banc) (explaining the factors
grounding a valid comparison).
For these reasons, we cannot say a reasonable jury could
conclude that any of the specific decisions Muigai challenges above
were motivated by his race or national origin.
IV.
Title VII also prohibits employers from retaliating against
employees for objecting to conduct made unlawful by Title VII. 42
U.S.C. § 2000e-3(a). Like claims of discrimination, we ordinarily
evaluate retaliation claims using the McDonnell Douglas burden-
shifting framework. See Gogel v. Kia Motors Mfg. of Ga., Inc.,
967
F.3d 1121, 1135–36 (11th Cir. 2020). In short, the plaintiff generally
must show that the employer’s proffered legitimate, nondiscrimi-
natory reason for its action was a pretext for retaliation. Id. at 1136.
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10 Opinion of the Court 20-13496
For his retaliation claims, Muigai largely relies on the same
evidence and arguments as his retaliation claims. Although the dis-
trict court concluded that the Sysco assignment decision was not
materially adverse and therefore not actionable, we need not ad-
dress that ruling because we have concluded, as we explained
above, that Muigai cannot establish pretext with regard to that is-
sue. And for the reasons explained in more detail with regard to
the discrimination claims, Muigai has not created a genuine issue
of fact of pretext in UPS’s explanation for any of the challenged em-
ployment decisions.
V.
Finally, Muigai asserts that he was constructively dis-
charged. “To successfully claim constructive discharge, a plaintiff
must demonstrate that working conditions were so intolerable that
a reasonable person in her position would have been compelled to
resign.” Poole v. Country Club of Columbus, Inc.,
129 F.3d 551,
553 (11th Cir. 1997). If the plaintiff meets that burden, he has es-
tablished an “adverse employment action” and may challenge the
constructive discharge under Title VII on the same terms as a for-
mal discharge.
Id. at 553 n.2; see Pennsylvania State Police v. Sud-
ers,
542 U.S. 129, 141 (2004) (“[A]n employee’s reasonable decision
to resign because of unendurable working conditions is assimilated
to a formal discharge for remedial purposes.”).
Here, we assume without deciding that Muigai presented
sufficient evidence for a jury to conclude his “working conditions
were so intolerable that a reasonable person in [his] position would
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20-13496 Opinion of the Court 11
have been compelled to resign.” Poole,
129 F.3d at 553. Neverthe-
less, that Muigai may have been constructively discharged does not
necessarily mean that he was discharged in violation of Title VII.
He still must prove that the discharge was motivated by his race or
national origin or was in retaliation for activity protected by Title
VII. See 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a); Poole,
129 F.3d at
553 (finding sufficient evidence of constructive discharge but “leav-
ing unresolved” the question of whether the discharge was moti-
vated by age discrimination or retaliation). And for the reasons we
have explained above, he has not created a genuine triable issue of
discrimination or retaliation for any of the employment actions he
challenges in this appeal, whether considered individually or as a
whole.
VI.
In sum, we affirm the district court’s grant of summary judg-
ment to UPS on Muigai’s claims of discrimination and retaliation.
AFFIRMED.
