Roosevelt Jones v. Suburban Propane, Inc. , 577 F. App'x 951 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10323
Non-Argument Calendar
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D.C. Docket No. 4:13-cv-00115-RH-CAS
ROOSEVELT JONES,
Plaintiff-Appellant,
versus
SUBURBAN PROPANE, INC.,
A Foreign Corporation,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Florida
________________________
(August 19, 2014)
Before HULL, MARCUS, and MARTIN, Circuit Judges.
PER CURIAM:
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Roosevelt Jones, an African-American male, appeals the district court’s
grant of summary judgment to his previous employer, Suburban Propane, Inc., on
his claims of race discrimination and retaliation under 42 U.S.C. § 1981. On
appeal, he argues that the district court erred in granting summary judgment to
Suburban because he made out a prima facie case of discrimination and retaliation,
and because the district court construed disputed material facts in Suburban’s
favor. Upon review of the record and consideration of the parties’ briefs, we
affirm.
I.
Jones began working as a delivery driver for Texas Gas in 1977, which was
bought out by Suburban in 1986. In June 2012, Suburban received a phone call
reporting that Jones was drinking, selling drugs, and transporting non-employees
while driving Suburban’s truck. After Suburban received the call, Jones’s
supervisor Mack Hacker attempted to call Jones. The phone records show nine
calls to Jones’s number. Once Hacker reached Jones, the two had a heated
conversation about where the truck was and how it should be returned to the
company. Jones says he told Hacker the truck was at his house but could not
remember the address because he was so frustrated. Hacker warned Jones that if
he did not tell him where the truck was that his job was in jeopardy. Hacker
initially planned to have a co-worker go pick up the truck. At some point, Jones
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decided unilaterally to call a wrecker service to come and tow the truck back to the
company lot, even though Hacker had told him not to do so. A few days later
when Jones came into work, he was fired for insubordination.
Jones filed this action against Suburban claiming racial discrimination under
§ 1981. He also alleged his firing was in retaliation for a 2010 discrimination
charge he had filed against Suburban with the Florida Commission on Human
Relations, which the parties had settled.
After some discovery, Suburban filed a motion for summary judgment. The
district court granted Suburban’s motion and entered judgment in favor of
Suburban. Jones filed this appeal.
II.
We review a grant of summary judgment de novo, viewing evidence in the
light most favorable to the non-moving party. Wilson v. B/E Aerospace, Inc., 376
F.3d 1079, 1085 (11th Cir. 2004). Summary judgment is appropriate when there is
no genuine issue of material fact. Fed. R. Civ. P. 56(a).
Under § 1981, an employee has a right to be free of intentional racial
discrimination in performing a contract. 42 U.S.C. § 1981(a). The elements of a
§ 1981 race discrimination claim are identical to those required in a Title VII
disparate-treatment claim. Rice-Lamar v. City of Ft. Lauderdale, 232 F.3d 836,
843 n.11 (11th Cir. 2000). We therefore analyze § 1981 claims using the same
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evidentiary requirements and analytical framework. Standard v. A.B.E.L. Servs.
Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
A plaintiff may establish discrimination through direct or circumstantial
evidence. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir.
2010). Where, like here, the plaintiff relies on circumstantial evidence, we apply
the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S. Ct. 1817 (1973). Under that framework, if the plaintiff makes
out a prima facie case, the burden shifts to the defendant to articulate a legitimate,
non-discriminatory reason for its action. Holland v. Gee, 677 F.3d 1047, 1055
(11th Cir. 2012). If the defendant does so, the burden then shifts back to the
plaintiff to produce evidence that the employer’s proffered reason is a pretext for
discrimination. Id. “At this stage, the plaintiff’s burden of rebutting the
employer’s proffered reasons merges with the plaintiff’s ultimate burden of
persuading the finder of fact that [he] has been the victim of intentional
discrimination.” Id. at 1056 (quotation marks and alterations omitted). Thus, “the
question becomes whether the evidence, considered in the light most favorable to
the plaintiff, yields the reasonable inference that the employer engaged in the
alleged discrimination.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1326
(11th Cir. 2011). Put another way, the issue is whether there is “a convincing
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mosaic of circumstantial evidence that would allow a jury to infer intentional
discrimination.” Id. at 1328 (quotation marks and footnote omitted).
Here, the district court did not err in granting summary judgment to
Suburban on Jones’s discrimination claim. First, Jones has not shown a material
dispute of fact as to whether Suburban’s reason for firing him was pretext. Jones
does not dispute that: (1) he and Hacker had a heated discussion about the location
and return of Suburban’s truck; (2) he—for whatever reason—did not give his
address; and (3) he resisted Hacker’s instructions for returning the truck. Jones
also admitted that he may have cursed and “said some choice things to [Hacker].”
At his deposition, he conceded that “you might want to call [his conversation with
Hacker] an argument.” He also testified that he was frustrated because he felt
Hacker was not listening to him and because he wanted to handle the issue himself
and Hacker would not let him.
Second, on top of his failure to rebut Suburban’s proffered reason for his
termination, Jones has failed to present other evidence that would allow a jury to
infer intentional discrimination. Jones first tries to rely on evidence that Suburban
did not fire a white employee who was accused by a customer of having alcohol on
his breath. However, the comparator Jones offers is not sufficiently similar under
this Circuit’s case law, because the comparator’s incident did not involve him
being insubordinate, which was the reason Suburban offered for Jones’s
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termination. Because Jones and his comparator were not accused of the same or
similar conduct, Jones and his comparator were not “similarly situated in all
relevant respects.” See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997);
see also Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) (“In
determining whether employees are similarly situated for purposes of establishing
a prima facie case, it is necessary to consider whether the employees are involved
in or accused of the same or similar conduct and are disciplined in different ways.”
(quotation marks omitted)).
Although the presence of a comparator is not required, Holland, 677 F.3d at1063 n.7, Jones’s other evidence also fails to raise a reasonable inference of
discrimination. Jones next claims Suburban has terminated all of its black
employees. Yet the record shows that the employees he points to left for a variety
of reasons, including voluntarily leaving for other jobs or because they were in
temporary or seasonal positions. Jones also concedes that one of the men “wasn’t
a great worker.”
Jones’s only other evidence is one stray comment from another employee
that Hacker “was going to get rid of [Jones].” But he does not show how that
comment was racially motivated. Beyond that, the record suggests the comment
was related to a conversation in which Jones was challenging Hacker, similar to
the dispute that led to Jones’s termination.
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For these reasons, we find no error in the grant of summary judgment on
Jones’s discrimination claim.
II.
Retaliation claims, including those brought against employers, are
cognizable under § 1981. CBOCS West, Inc. v. Humphries, 553 U.S. 442, 452–
57, 128 S. Ct. 1951, 1958–61 (2008); see also 42 U.S.C. § 1981(a). A plaintiff can
establish such a prima facie case of retaliation by showing that: (1) he engaged in
statutorily protected expression; (2) he suffered a materially adverse action; and
(3) the adverse action was causally related to the protected expression. Crawford
v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008).
To establish a causal connection, a plaintiff must demonstrate that the
employer’s desire to retaliate was a but-for cause of the materially adverse action.
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. ___, ___, 133 S. Ct. 2517, 2533
(2013). A plaintiff’s burden to prove causation can be met by showing a close
temporal proximity between the statutorily protected activity and adverse-
employment action. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th
Cir. 2007). But if there was a significant time gap between the protected
expression and the adverse action, the plaintiff must offer additional evidence to
demonstrate a causal connection, such as a pattern of antagonism or that the
adverse action was the “first opportunity” for the employer to retaliate. See, e.g.,
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Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997) (evidence
of a “pattern of antagonism” following the protected activity may give rise to the
inference of causation); Dale v. Wynne, 497 F. Supp. 2d 1337, 1346 (M.D. Ala.
2007) (“In this instance, a six-week gap is enough to show temporal proximity,
particularly because Dale’s return to work was the first opportunity Wilson had to
retaliate against her.”).
The record here demonstrates the district court did not err in granting
summary judgment on Jones’s retaliation claim. There was a gap of more than two
years between the 2010 discrimination charge Jones filed against Suburban and his
termination. Jones therefore could not rely on temporal proximity alone to
establish that his termination was causally related to his protected activity.
However, he did not offer other evidence to show a connection and demonstrate a
dispute of fact as to this element of his prima facie retaliation case.
III.
Because we conclude that Jones failed to establish a material dispute of fact
as to his discrimination or retaliation claims, the district court’s order is
AFFIRMED.
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