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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-12297
Non-Argument Calendar
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D.C. Docket No. 5:19-cv-00032-TES
KYM HOLLEY,
Plaintiff-Appellant,
versus
GEORGIA DEPARTMENT OF CORRECTIONS,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Georgia
________________________
(February 12, 2021)
Before WILSON, ROSENBAUM, and NEWSOM, Circuit Judges.
PER CURIAM:
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Kym Holley—an African-American man—appeals the district court’s order
granting summary judgment in favor of the Georgia Department of Corrections
(DOC) with respect to his race-discrimination claim under Title VII of the Civil
Rights Act of 1964, filed after the DOC rescinded his job offer and instead hired a
white woman.
The facts are known to the parties, so we will briefly repeat them here only
to the extent necessary to resolve the issues presented. Holley applied for an open
“Instructor 2” position with the DOC’s Burruss Correctional Training Center in
Forsyth, Georgia. Warden Benjamin Ford—also an African-American man—
interviewed Holley and later called to offer him the position. Ford did not see
Holley’s criminal-history report before doing so. But just a few days later, Ford
was transferred to a different prison and James Payne—a white man—was
promoted to be the new warden at Burruss. The following week, Holley went to
Burruss to attend a new-hire orientation and to complete some paperwork—
including a State of Georgia Loyalty Oath/State Security Questionnaire in which
he disclosed a prior conviction of fleeing and eluding an officer. Shortly
thereafter, Gail Holder, an HR manager at Burruss, received Holley’s criminal-
history report—which (in addition to the prior conviction Holley had disclosed)
incorrectly indicated that he had been sentenced to five months’ probation in 1992.
Holder provided Holley’s criminal-history report to Payne. Payne judged that the
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nature of Holley’s conviction—fleeing and eluding a police officer—showed that
Holley did not meet the DOC’s standards for employment. In addition, at the time,
Payne attested, the DOC had a leadership directive in place requiring that
applicants with any type of probation in their records not be hired. Holder
contacted Holley to inform him that his job offer was being rescinded because
prison policy prohibited hiring individuals with a record of probation. Holley
disputed that he had ever been on probation, but he was not given the usual
opportunity to formally respond to the content of the criminal background report.
The DOC subsequently promoted Georgia Franklin—a white woman and an
established part-time employee at Burruss—to fill the position. As it turns out,
Franklin had actually been on probation—after she was initially hired for her part-
time position, but before her promotion—but Payne was not aware of Franklin’s
probation history until this lawsuit was filed.
Holley brought this lawsuit alleging, in relevant part, that the DOC
discriminated against him on the basis of his race. The district court granted the
DOC’s motion for summary judgment, and Holley appealed.
Holley makes three arguments on appeal. First, he argues that the district
court erred by finding that he had not presented a similarly situated comparator
because, he says, he had presented sufficient evidence that Franklin—the white
woman who was ultimately hired—was “similarly situated [to him] in all material
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respects” under the standard established in Lewis v. City of Union City,
918 F.3d
1213, 1218 (11th Cir. 2019) (en banc). Second, Holley asserts that the district
court erred by rejecting his “cat’s paw” argument because—as he sees it—the facts
construed in his favor show that the decisionmaker didn’t conduct an independent
investigation and that the hiring process revealed an intent to discriminate. Finally,
Holley contends that the district court erred in concluding that he failed to show a
convincing mosaic of circumstantial evidence from which a reasonable jury could
infer that the DOC acted with discriminatory intent. After careful review, we
affirm.1
I
Title VII prohibits employers from refusing to hire, or otherwise
discriminating against, an individual because of his race. 42 U.S.C. § 2000e-
2(a)(1). Where the plaintiff supports his Title VII claim with circumstantial
evidence, we apply the burden-shifting framework set out in McDonnell Douglas
1
We review de novo a district court’s grant of summary judgment, using the same legal
standards applied by the district court. Alvarez v. Royal Atl. Devs., Inc.,
610 F.3d 1253, 1263
(11th Cir. 2010). Summary judgment is appropriate “if the movant shows that 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). In determining whether the movant has met this burden, courts must
view the evidence in the light most favorable to the non-movant. Alvarez,
610 F.3d at 1263–64.
When a movant has shown that no genuine dispute of material fact exists, the burden shifts to the
non-movant to demonstrate that there is a genuine issue of material fact that precludes summary
judgment. Clark v. Coats & Clark, Inc.,
929 F.2d 604, 608 (11th Cir. 1991). The non-movant
must go beyond the pleadings and present competent evidence setting forth specific facts to show
that a genuine issue exists. Young v. City of Palm Bay,
358 F.3d 859, 860 (11th Cir. 2004).
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Corp. v. Green,
411 U.S. 792 (1973). Brown v. Ala. Dep’t of Transp.,
597 F.3d
1160, 1174, 1181 (11th Cir. 2010). The plaintiff bears the initial burden of
presenting evidence sufficient to establish a prima facie case of discrimination.
McDonnell Douglas,
411 U.S. at 802.
A prima facie discrimination claim under Title VII generally requires a
plaintiff to show (1) that he is a member of a protected class, (2) that he was
subjected to an adverse employment action, (3) that he was qualified for the job,
and (4) that his employer treated similarly situated employees outside the protected
class more favorably. Lewis, 918 F.3d at 1220–21. To meet the fourth prong, a
comparator must be “similarly situated in all material respects,” meaning that the
plaintiff and comparators are “sufficiently similar, in an objective sense, that they
cannot reasonably be distinguished.” Id. at 1218, 1228 (quotation marks omitted).
Although the similarly-situated standard requires a case-by-case analysis, a
similarly situated comparator will ordinarily have engaged in the same basic
misconduct as the plaintiff (if applicable); have been subject to the same
employment policy, guideline, or rule; shared the same supervisor; and shared the
plaintiff’s employment or disciplinary history. Id. at 1227–28. But importantly
here, a proffered comparator’s misconduct is relevant only if the decisionmaker
knew about it. Jones v. Gerwens,
874 F.2d 1534, 1542 (11th Cir. 1989). A
plaintiff’s failure to produce evidence showing that a single similarly situated
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employee was treated more favorably precludes the establishment of a prima facie
case. Lewis, 918 F.3d at 1224.
The district court did not err in concluding that Holley failed to establish a
prima facie case for race discrimination. Holley and Franklin were similarly
situated to the extent that they worked for the same employer and were subject to
the same employment policy. See id. at 1227–28. But their Georgia Crime
Information Center (GCIC) reports—the records that the warden relied on in
making his hiring decisions—did not show similarly situated candidates. Instead,
the reports showed, albeit incorrectly, that Holley had been on probation and that
Franklin had not. Therefore, Holley and Franklin were not sufficiently similar, in
an objective sense. See id. at 1228. The fact that Franklin actually had been on
probation is irrelevant because it’s undisputed that Payne wasn’t aware of it when
he made the decision to promote Franklin to the position initially offered to
Holley.2 See Jones,
874 F.2d at 1542. Accordingly, we affirm as to this issue.
II
When a claim involves an adverse employment action that occurs based on a
biased recommendation by a party without decision-making authority, a plaintiff
2
To the extent that Holley argues that the district court relied on inapposite or outdated cases, the
court used the correct comparator standard from Lewis, and no case has overturned the principle
from Jones that a proffered comparator’s misconduct is relevant only if the decisionmaker knew
about it. And Holley cites no authority for the proposition that he can establish a valid
comparator by showing that Payne could have become aware of Franklin’s probation through
Holder.
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can establish liability under the cat’s paw theory. See Stimpson v. City of
Tuscaloosa,
186 F.3d 1328, 1331–32 (11th Cir. 1999). Under that theory, if the
decisionmaker followed the biased recommendation without independent
investigation—essentially rubber-stamping the biased recommendation—then the
recommender’s discriminatory animus is imputed to the decisionmaker. See
id. at
1332. We have noted, in the Title VII context, that when an employer makes an
effort to independently investigate before making an adverse employment decision,
it should not be held liable for another employee’s hidden discriminatory motives.
Llampallas v. Mini-Circuits, Lab, Inc.,
163 F.3d 1236, 1249–50 (11th Cir. 1998).
In Staub v. Proctor Hospital, the Supreme Court, in addressing a
discrimination claim under the Uniformed Services Employment and
Reemployment Rights Act, concluded that an independent investigation did not
relieve an employer of fault.
562 U.S. 411, 416 (2011). Instead, the Court held
that discriminatory animus may be imputed to a neutral decisionmaker under a
cat’s paw theory if (1) a supervisor performed an act motivated by animus that was
intended to cause an adverse employment action and (2) the act was a proximate
cause of the adverse employment action.
Id. at 422. Nonetheless, the Court
explained that there is no proximate cause—and therefore can be no liability—if
the adverse action is entirely justified apart from the biased supervisor’s
recommendation.
Id. at 421–22
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Here, the district court did not err by finding that Holley failed to create a
factual issue as to liability under a cat’s paw theory. Assuming that Staub
established agency principles that constituted a lower burden for plaintiffs in
establishing cat’s paw, Holley still cannot satisfy its standard. See Staub,
562 U.S.
at 422. Holder couldn’t have provided a biased recommendation because that was
not her role in the hiring process—she simply gave the warden the GCIC reports,
which she had no hand in creating. Thus, Payne’s rescission of Holley’s job offer
was justified based on Holley’s actual criminal history and was entirely separate
from any action by Holder. See
id. at 421–22. Moreover, Holder’s action in
refusing to allow Holley to dispute his GCIC report does not create a genuine issue
because it shows only that Payne had already made his decision, not that Holder’s
conduct somehow caused Payne’s decision to rescind Holley’s job offer.
Significantly, it is undisputed that Holder learned about Franklin’s probation
after Payne decided to hire her. And Holley provided no evidence that Holder’s
actions were motivated by a discriminatory animus and were intended to cause an
adverse employment action, which precludes cat’s paw liability even under Staub.
See
id. at 422. Accordingly, we also affirm as to this issue.
III
As an alternative to the McDonnell Douglas burden-shifting test, a plaintiff
can survive summary judgment by presenting circumstantial evidence that creates
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a triable issue concerning the employer’s discriminatory intent. Smith v.
Lockheed-Martin Corp.,
644 F.3d 1321, 1328 (11th Cir. 2011). Such “[a] triable
issue of fact exists if the record, viewed in a light most favorable to the plaintiff,
presents a convincing mosaic of circumstantial evidence that would allow a jury to
infer intentional discrimination by the decisionmaker.”
Id. (quotation marks and
footnote omitted). A plaintiff may establish a convincing mosaic by pointing to
evidence that demonstrates (1) suspicious timing, ambiguous statements, or other
information from which discriminatory intent may be inferred, (2) systematically
better treatment of similarly situated employees, and (3) pretext. Lewis v. City of
Union City,
934 F.3d 1169, 1185 (11th Cir. 2019). Notably, a supervisor is
entitled to enforce policies that his predecessors did not consider important. See
Rojas v. Florida,
285 F.3d 1339, 1343 (11th Cir. 2002).
The district court did not err by finding that Holley failed to create a triable
issue concerning a convincing mosaic of race discrimination. Viewing the record
in the light most favorable to Holley, he did not present a convincing mosaic of
circumstantial evidence that would allow a jury to infer intentional race
discrimination in the decision to rescind his job offer. See Smith,
644 F.3d at 1328.
He did not present evidence that the DOC acted arbitrarily, nor did he cast
sufficient doubt on the DOC’s proffered nondiscriminatory reasons. See Lewis,
934 F.3d at 1185–86. Objective evidence—Holley’s actual criminal record—
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supported the DOC’s proffered reasons for rescinding his job offer. Holley’s other
arguments—which hinge on vague details about the DOC’s policy against hiring
people with probationary records and the different hiring decisions made by
Wardens Ford and Payne—also fail. Ford testified he didn’t know about Holley’s
(supposed) probation, and supervisors have discretion to enforce particular
practices and standards of behavior. See Rojas,
285 F.3d at 1343. While the
DOC’s refusal to allow Holley to dispute his GCIC report clearly violated its own
policy, it doesn’t provide evidence that the DOC’s proffered reason for rescinding
the offer was pretextual. That is so because Holley did in fact have a criminal
record that Payne believed fell below DOC standards. Accordingly, we affirm as
to this issue and affirm the district court’s entry of summary judgment for the
DOC.
IV
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED.
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