Steve T. Malu v. City of Gainesville , 270 F. App'x 945 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MARCH 26, 2008
THOMAS K. KAHN
No. 07-13625
CLERK
Non-Argument Calendar
________________________
D. C. Docket No. 04-00356-CV-1-MMP
STEVE T. MALU,
Plaintiff-Appellant,
versus
CITY OF GAINESVILLE,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(March 26, 2008)
Before ANDERSON, HULL and WILSON, Circuit Judges.
PER CURIAM:
Steve T. Malu appeals a district court decision granting a directed verdict in
favor of the City of Gainesville (“City”). Malu brought this action against the City
pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §
2000e, et. seq., alleging, inter alia, discrimination on the basis of national origin
and retaliation. According to Malu, the City rejected his application for
employment as its Charter Equal Opportunity Director because of his Nigerian
national origin and because he had filed an EEOC charge and a lawsuit against the
City. Following the close of Malu’s case-in-chief at trial, the district court granted
the City’s motion for a directed verdict, finding that Malu had failed to put forth
sufficient evidence to establish either of his claims. For the reasons set forth
below, we affirm.
I. BACKGROUND
Malu was employed by the City as an affirmative action officer from
September 1999 until August 2002, when he was terminated. Following his
termination, Malu filed a discrimination claim with the EEOC and brought suit
against the City in Florida circuit court, alleging race and national origin
discrimination, as well as retaliation.
During the same period, the City obtained passage of a referendum
providing for the establishment of a Charter Equal Opportunity Director position.
The Gainesville City Commission (“City Commission”) appointed an Ad Hoc
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Charter Officer Equal Opportunity Advisory Committee (“Ad Hoc Committee” or
“Committee”) to develop a selection process for the position. The Ad Hoc
Committee voted to hire an outside consultant, Robert Slavin of Slavin
Management Consultants (“SMC”), to assist in the identification and selection of
qualified applicants. Slavin reviewed all applications and submitted the names of
selected candidates to the Ad Hoc Committee, which had the option of accepting or
rejecting his recommendations.
In September 2003, while his lawsuit was still pending, Malu submitted an
online application for the Charter Equal Opportunity Director position. As part of
this application, Malu acknowledged that he may be required to complete a
background data packet and that the failure to complete the packet would result in
immediate rejection of his application.
Slavin narrowed the initial applicant pool to twenty-five semifinalists,
including Malu. Each semifinalist was asked to complete a questionnaire and
waiver form that included language releasing SMC and the City from any claims
arising out of the reporting of information through the background investigation.
Malu completed and returned the questionnaire but did not submit the required
waiver form. Instead he provided his own waiver document that did not include
the pertinent release language.
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After receiving documentation from the semifinalists, Slavin narrowed the
list to fourteen candidates, whom he divided into three categories: an “A” list, a
“B” list, and a “special circumstances” list. The special circumstances list
consisted of Malu and one other candidate. During a conference call in December
2003, Slavin advised the Ad Hoc Committee that Malu had been placed on the
special circumstances list because of his refusal to sign the required waiver of
liability. Slavin informed the Ad Hoc Committee that he could not have any
candidate go forward in the process until he or she signed the release. During this
call, the Ad Hoc Committee also discussed the fact that there was an ongoing
lawsuit between Malu and the City.
The other candidate on the special circumstances list, Darryl Elmore, was a
former City employee who had previously sued the City and had entered into an
settlement in which he agreed not to apply for employment there again. The Ad
Hoc Committee moved Elmore to the “A” list, based in part on Slavin’s assessment
of his qualifications. It then agreed to forward the candidates on that list to the
City Commission for review.
After learning of the Ad Hoc Committee’s decision, Malu contacted Slavin
concerning the status of his application. According to Malu, Slavin told him that
he (Slavin) was taking direction from Tom Motes, the City’s Director of Human
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Resources and Malu’s former supervisor. Slavin allegedly said that Motes would
not allow the application to go forward because Malu had filed a suit against the
City. Further, Slavin told him that he was not able to get a reference for Malu from
the City, and, since part of the process was obtaining references for all applicants,
this posed an additional problem with his application. Malu testified that after he
spoke with Slavin, he called Motes on December 29, 2003, to inquire about the
status of his application. According to Malu, Motes told him that his application
would not go forward because he had filed a lawsuit against the City, and because
he was from Nigeria. Malu testified that Motes told him that he would not be a
good person for the position because people from Nigeria do not respect women.
Following the close of Malu’s case, the City moved for judgment in its favor
on both the discrimination and the retaliation counts. The district court found that
Malu had not put forth sufficient evidence to show that the Ad Hoc Committee or
the City Commission failed to consider him for the position because of his national
origin. In addition, the court found that the evidence failed to show that Malu’s
prior lawsuit in any way influenced Slavin, the Ad Hoc Committee, or the City
Commission in their decision. Accordingly, the district court granted the motion in
favor of the City. This timely appeal followed.
II. DISCUSSION
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We review de novo a district court’s grant of judgment as a matter of law
under Fed. R. Civ. P. 50(a), applying the same standard that bound the district
court.1 Rodriguez v. Sec’y for Dep’t of Corrs., 508 F.3d 611, 616 (11th Cir. 2007).
“[W]e examine the evidence presented at trial in the light most favorable to
[Malu].” Id. Although we look at the evidence in the light most favorable to the
non-moving party, the non-movant must put forth more than a mere scintilla of
evidence suggesting that reasonable minds could reach differing verdicts.
Mendoza v. Borden, Inc., 195 F.3d 1238, 1244 (11th Cir.1999). A judgment as a
matter of law is appropriate when “a party has been fully heard on an issue during
a jury trial and the court finds that a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on that issue.” Fed. R. Civ. P.
50(a).
1. National Origin Discrimination Claim
Title VII makes it an unlawful employment practice for an employer to fail
or refuse to hire or to discharge any individual, or otherwise discriminate against
any individual with respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion, sex, or national
origin. 42 U.S.C. § 2000e-2(a); see also Bass v. Bd. of County Comm’rs, Orange
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Although the record indicates that the City moved pursuant to Rule 41, we conclude
that the motion is properly construed as one for judgment as a matter of law under Rule 50(a).
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County, Fla., 256 F.3d 1095, 1103 (11th Cir. 2001). “A plaintiff may establish a
Title VII claim through the introduction of direct evidence of discrimination or
through circumstantial evidence that creates an inference of discrimination.” Bass,
256 F.3d at 1103. “Direct evidence of discrimination is evidence, that, if believed,
proves [the] existence of [a] fact in issue without inference or presumption.”
Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999) (alterations in
original) (internal quotation marks omitted). However, if the statement is merely
suggestive of a discriminatory motive, then it is circumstantial evidence. Id.“[R]emarks by non-decisionmakers or remarks unrelated to the decision making
process itself are not direct evidence of discrimination.” Bass, 256 F.3d at 1105
(internal quotation marks omitted).
Malu argues that he presented direct evidence at trial to substantiate his
national origin discrimination claim. We disagree. While Malu did introduce
evidence of discriminatory animus on the part of Motes, he failed to present any
evidence that Motes was a decisionmaker with respect to his application. In fact,
the record indicates that the Ad Hoc Committee was the decisionmaker and that it
acted independently of Motes. Although Motes attended some Committee
meetings and answered members’ questions, there is no evidence that he ever made
recommendations concerning which candidates should go forward in the selection
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process. Thus, the statements attributed to Motes are not direct evidence of
discrimination, and Malu therefore must rely on circumstantial evidence to
substantiate his claim.
Where a plaintiff seeks to establish a disparate treatment claim through
circumstantial evidence, we test the sufficiency of that claim by applying the
burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) and Texas Department of
Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207(1981). Bass, 256 F.3d at 1103-04. Under this framework, the plaintiff first must
establish a prima facie case of discrimination. Id. at 1104. In an action alleging
discrimination through a failure to hire, the plaintiff establishes a prima facie case
by showing that (1) he was a member of a protected class; (2) he applied and was
qualified for a position for which the defendant was accepting applications; (3)
despite his qualifications, he was not hired; and (4) after his rejection the position
remained open or was filled by a person outside his protected class. Schoenfeld,
168 F.3d at 1267. Under the McDonnell Douglas framework, once the plaintiff
establishes a prima facie case, the burden shifts to the employer to “articulate some
legitimate, nondiscriminatory reason” for the employment action. McDonnell
Douglas, 411 U.S. at 802, 93 S. Ct. at 1824. If the employer is able to meet its
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burden, the plaintiff must then prove that the proffered reason is merely a pretext
for discrimination. Burdine, 450 U.S. at 253, 101 S. Ct. at 1093.
Viewing the evidence in the light most favorable to Malu, we conclude that
Malu established a prima facie case of discrimination. At the trial, Malu testified
that he is Nigerian, that he has more than 16 years of experience in the relevant
fields, that he was not hired by the City, and that the City continued to accept
applications after setting his aside. However, the City had a stated legitimate, non-
discriminatory reason for not advancing his application: his failure to sign the
required waiver. Therefore, we consider whether the evidence at trial has created a
genuine issue of material fact as to whether the City’s articulated reason was
pretextual.
Malu argues that his evidence was sufficient to show that Slavin, the Ad Hoc
Committee, and the City Commission acted as Motes’s conduit, or “cat’s paw,”
during the selection process, and therefore Motes’s discriminatory animus tainted
the decision not to advance his application. Under a “cat’s paw” theory, the
discriminatory animus of a non-decisionmaking employee may, in certain
circumstances, be imputed to the neutral decisionmaker when the decisionmaker
does not independently evaluate the situation. See Llampallas v. Mini-Circuits,
Lab, Inc., 163 F.3d 1236, 1249 (11th Cir. 1998). “In such a case, the recommender
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is using the decisionmaker as a mere conduit, or ‘cat’s paw’ to give effect to the
recommender’s discriminatory animus.” Stimpson v. City of Tuscaloosa, 186 F.3d
1328, 1332 (11th Cir. 1999) (per curiam).
Here, however, there is no evidence to support the contention that Motes
affected the City’s decision on Malu’s application. As indicated, it was the Ad
Hoc Committee, not Slavin, that decided not to advance Malu as a candidate. At
most, Malu can establish an inference that Slavin placed him on the “special
circumstances” list at Motes’s direction. Contrary to Malu’s suggestion, however,
the record does not indicate that the Committee simply acted as a “rubber stamp”
for Slavin’s recommendations. The testimony at trial indicates that the Committee
exercised its own independent judgment in deciding which candidates to submit to
the City Commission for consideration. Indeed, it is noteworthy that the
Committee decided to advance Darryl Elmore’s application notwithstanding the
fact that Slavin had placed him on the special circumstances list. Likewise, there is
no evidence that Motes in any way influenced the City Commission’s evaluation of
candidates. Accordingly, Malu’s “cat’s paw” theory fails.
Because Malu failed to put forth sufficient evidence that the stated reason
not to advance his application—his failure to sign the waiver—was a pretext for
discrimination, the district court did not err in granting the City’s motion for
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directed verdict on his national origin discrimination claim.
2. Retaliation Claim
Title VII prohibits retaliation by an employer against an employee or
applicants for employment because the applicant has opposed an unlawful
employment practice “or because he has made a charge . . . under this subchapter.”
42 U.S.C. § 2000e-3(a). A plaintiff establishes a prima facie case of retaliation
under Title VII by showing that (1) he engaged in statutorily protected expression;
(2) he suffered an adverse employment action; and (3) there was some causal
relation between the two events. Pennington v. City of Huntsville, 261 F.3d 1262,
1266 (11th Cir. 2001). The plaintiff can establish a causal connection by
presenting evidence that “the decision-makers were aware of the protected conduct,
and that the protected activity and the adverse actions were not wholly unrelated.”
Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 716 (11th Cir. 2002)
(internal quotation marks omitted). We construe the causal link element broadly.
Pennington, 261 F.3d at 1266. Once the plaintiff establishes a prima facie case of
retaliation, “the burden of production then shifts to the defendant to establish
non-retaliatory reasons for the employment actions.” E.E.O.C. v. Reichhold
Chems., Inc., 988 F.2d 1564, 1572 (11th Cir. 1993). If the defendant establishes a
non-retaliatory reason for the action, the burden then shifts back to the plaintiff to
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refute these reasons by proving that they are pretextual. Id. at 1572.
It is unclear from the trial transcript whether the district court concluded that
Malu had established a prima facie case of retaliation. However, even assuming
that such a case was established, Malu has failed to offer evidence to refute the
City’s legitimate non-discriminatory reason for not advancing his application.
While the Ad Hoc Committee may have been aware that Malu had previously filed
a lawsuit against the City, Malu presented no evidence that this fact was in any
way a factor in the Committee’s decision not to advance his application. As noted,
the record indicates that it was Malu’s failure to complete the required waiver that
determined the outcome of his candidacy. Moreover, as discussed above, the
record does not support Malu’s assertion that the Committee or the City
Commission acted as a conduit for Motes. Thus, the district court properly entered
a directed verdict in favor of the City on Malu’s retaliation claim.
We affirm the judgment of the district court.
AFFIRMED.
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