Daryl Archibald v. United Parcel Service Co inc. , 620 F. App'x 836 ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-13585
Non-Argument Calendar
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D.C. Docket No. 7:12-cv-03492-LSC
DARYL ARCHIBALD,
Plaintiff-Appellant,
versus
UNITED PARCEL SERVICE CO INC.,
JAMIE DIAZ,
In his Professional capacity as manager
Individual capacity,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Alabama
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(August 24, 2015)
Before WILLIAM PRYOR, JORDAN and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Daryl Archibald appeals the summary judgment in favor of his employer,
the United Parcel Service, Inc. and its former manager, Jaime Diaz (collectively
“UPS”), and against Archibald’s complaints of discrimination based on his race,
retaliation, and a hostile work environment, in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a), 2000e-3(a), and his right to the free
and equal benefit of all laws, id. § 1981. Archibald argues that material disputes of
fact exist about whether he was denied a promotion to a full-time delivery driver in
2010 and denied assignments as a temporary driver because he is African-
American and whether he was accompanied by route supervisors, disciplined for
violating company appearance rules, and called at late hours about temporary
driving assignments in retaliation for charges that he filed with the Equal
Employment Opportunity Commission and to harass him. Archibald also
challenges the determination that he abandoned some of his claims. We affirm.
The district court did not err by entering summary judgment against
Archibald’s complaints that he was denied a promotion by Diaz and temporary
driving assignments by UPS because of his race. Even if we assume, like the
district court, that Archibald established a prima facie case of racial discrimination,
he failed to establish that the legitimate reasons proffered by UPS for its decisions
were pretextual. See Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d
1344, 1347 (11th Cir. 2007). Diaz declared that he promoted a white employee,
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Jared Courington, as a full-time driver instead of Archibald based on inaccurate
information from the human resources department that Courington had more
seniority. And UPS submitted declarations from its package dispatch supervisor,
David Shelton, that he scheduled Archibald for temporary driving shifts whenever
possible, and from its district manager, Sam Robinson, that shifts were given to
less senior employees because they needed to qualify as temporary drivers or
because Archibald, whose primary job was loading delivery trucks, was ineligible
to drive under rules of the Department of Transportation and UPS that prohibited
more than 12 consecutive hours of work. Archibald submitted an affidavit from a
supervisor, K.J. Johnson, that he did not “assign any full-time positions over . . .
Archibald,” and from a coworker, Vincent Beverly, stating that Archibald was a
“loyal employee” who had been “passed over” in violation of rules of seniority and
because of “favoritism,” but those affidavits failed to create a genuine factual
dispute about the legitimacy of the reasons proffered by Diaz and UPS. See
Springer, 509 F.3d at 1349. And Johnson’s vague statement that Diaz made “false
and incorrect” statements “during his deposition” did not remotely suggest that
“discrimination was the real reason” for Diaz’s decision. See id. Archibald argues
that he had “superior training” to Courington and other temporary drivers, but
Archibald “cannot prove pretext by simply arguing or even by showing that he was
better qualified than the person who received the position he coveted.” Id. The
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undisputed evidence established that Diaz mistakenly promoted a less senior
temporary driver and that UPS assigned driving shifts based on its business needs.
The district court also did not err by entering summary judgment against
Archibald’s complaints about retaliation and harassment. Archibald failed to
establish a prima facie case of retaliation because he did not present any evidence
of a material adverse employment action that was causally connected to a protected
activity. See Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1258 (11th Cir.
2012). That Archibald was observed on his driving route ten times during one year,
received warnings and a one-day suspension for his violations of company
appearance rules, and received nighttime telephone calls to inform him of
temporary driving assignments amounted to mere annoyances and did not affect
his position with UPS. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 68, 126 S. Ct. 2405, 2415 (2006). Undisputed evidence established that Shelton
called Archibald to offer him temporary driving assignments and to excuse him
from loading duties; UPS observed Archibald the same amount as other temporary
drivers; and UPS promoted Archibald to a full-time driver in March 2013. Even if
Archibald’s one-day suspension in January 2012 was an adverse employment
action, it was too remote from the first charge that he filed with the Commission in
October 2011 to establish retaliation based on close temporal proximity, see
Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). And
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Archibald presented no evidence of harassment based on a protected characteristic
or of severe and pervasive harassment as required to establish a prima facie case of
a hostile work environment. See Miller v. Kenworth of Dothan, Inc., 277 F.3d
1269, 1275 (11th Cir. 2002). Archibald alleged that he was disciplined for his
“African-American hairstyle,” but he testified that he was allowed to wear his hair
in braids that did not touch his collar and that no one at UPS made any race-based
comments to him.
Archibald argues that the district court improperly treated some of his claims
as abandoned, but Archibald has waived this argument. Rule of Appellate
Procedure 28(a)(9) requires an appellant to include in his brief his “contentions and
reasons for them, with citations to the authorities and parts of the record on which
[he] relies.” Fed. R. App. P. 28(a)(8)(A). Archibald’s argument consists of a
conclusory statement that “[a]ll issues the district court stated that were abandoned
are not,” and a cursory explanation of the burden on the party moving for summary
judgment. Because Archibald neglects to identify any of the claims that the district
court treated as abandoned or to explain why the claims were not abandoned, we
consider Archibald’s argument waived. See Nat’l Alliance for Mentally Ill, St.
Johns Inc. v. Bd. of Cnty. Comm’rs of St. Johns Cnty., 376 F.3d 1292, 1295–96
(11th Cir. 2004).
We AFFIRM the summary judgment in favor of Diaz and UPS.
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