Rickie Lewis v. Blue Bird Corporation ( 2020 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-11397
Non-Argument Calendar
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D.C. Docket No. 5:18-cv-00273-MTT
RICKIE LEWIS,
Plaintiff-Appellant,
versus
BLUE BIRD CORPORATION,
Blue Bird Blvd Fort Valley Georgia,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(November 24, 2020)
Before WILSON, ROSENBAUM and FAY, Circuit Judges.
PER CURIAM:
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Rickie Lewis appeals the district court’s grant of summary judgment in favor
of the Blue Bird Corporation (“Blue Bird”) on his claim that Blue Bird terminated
him in retaliation for filing a charge with the Equal Employment Opportunity
Commission (“EEOC”). We affirm.
I. BACKGROUND
Lewis, an African-American male, was hired as a maintenance technician at
Blue Bird in June 2015.1 In January 2016, Lewis filed a complaint with the EEOC
for discrimination; he amended the complaint to add claims of retaliation in August
2016. He was terminated from Blue Bird in September 2016. Lewis filed a third
EEOC charge in November 2016. Lewis subsequently filed the present suit against
Blue Bird, alleging race discrimination and retaliation. He alleged that he was
subjected to a hostile work environment where racial comments were made, he was
not promoted for retaliatory reasons, and he was treated differently because of his
race. Lewis also alleged that Blue Bird terminated his employment as retaliation
for his August 2016 EEOC charge and that Blue Bird violated 42 U.S.C. § 1981and Title VII of the Civil Rights Act (“Title VII”) by terminating his employment
1
Because we write for the parties, we assume their familiarity with the facts and include only
what is necessary to understand our resolution of this appeal.
2
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out of retaliation for his EEOC complaint for racial discrimination. Blue Bird
answered the amended complaint and denied liability.
Following discovery, Blue Bird moved for summary judgment, arguing that
Lewis’s claim for retaliation failed because his termination was caused by his own
actions, not his EEOC charges. It argued that it had a legitimate, non-
discriminatory reason for his termination; Lewis’s repeated negligence and
falsification of an inspection checklist caused his termination and there was no
evidence that his EEOC complaints were a factor in the termination decision. It
also argued that Lewis failed to show that its proffered reasons were pretextual or
that retaliation was the but-for cause for his termination.
The district court granted summary judgment to Blue Bird on all of Lewis’s
claims. Regarding his retaliation claim, the district court concluded that Lewis
engaged in statutorily protected activity when he filed EEOC charges. Because the
undisputed evidence revealed no causal link between the EEOC charges and the
alleged adverse actions, the court concluded that it did not need to reach the
question of whether to analyze Blue Bird’s disciplinary actions individually or
collectively for the purposes of determining whether Blue Bird took adverse action
against him. Further, it noted that Blue Bird proffered unrebutted legitimate, non-
retaliatory reasons for each of the actions.
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Regarding his termination, the district court noted that Lewis disputed the
fact that a bus that he inspected was later found to have faulty programming for its
high idle setting on three grounds: that Blue Bird did not support it with
documentary evidence; that although Blue Bird claimed it was a 30-day warranty
claim, Blue Bird actually had a year-long warranty for this issue; and that the
declaration of Philomena Washington, the Senior Manager of Employment
Compliance and Policies at Blue Bird, was hearsay. The district court noted that,
in response, Blue Bird produced evidence and affidavit testimony documenting the
claim and its investigation of the claim. Further, it noted that the length of the
warranty is not relevant and the evidence on the high idle issue came from records
kept in the course of regular business activity and the testimony of Patrick Robirts,
Lewis’s supervisor.
The district court concluded that there was ample evidence of legitimate,
non-discriminatory reasons for Lewis’s termination, specifically noting that the bus
still had its factory settings, indicating that the switch had never been activated. As
to pretext, the district court concluded that Lewis failed to demonstrate that the
reasons for his termination were pretextual. It also concluded that Lewis failed to
show, under the convincing mosaic standard, that any of Blue Bird’s actions
constituted racial discrimination or retaliation.
II. DISCUSSION
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On appeal, Lewis argues that the district court erred in granting summary
judgment to Blue Bird on his retaliation claim because he established pretext by
testifying that the reason proffered for his separation was false.
We review the grant of summary judgment de novo, applying the same legal
standards as the district court. Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253,
1263 (11th Cir. 2010). The question is whether the evidence, when viewed in the
light most favorable to the nonmoving party, shows that no genuine issue of
material fact exists, and that the moving party is entitled to judgment as a matter of
law. Id. at 1263-64. We may affirm summary judgment on any ground supported
by the record, even if the district court relied upon an incorrect ground or gave an
incorrect reason. Id. at 1264.
Title VII prohibits an employer from discharging or discriminating against
any individual “with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1).
Under the anti-retaliation provision in Title VII, an employer may not retaliate
against an employee because the employee “has opposed any practice made an
unlawful employment practice” or “has made a charge” regarding an unlawful
employment practice under Title VII. 42 U.S.C. § 2000e-3(a).
When a plaintiff relies on circumstantial rather than direct evidence for a
retaliation claim, we apply the burden shifting framework articulated in McDonnell
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Douglas. See Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1297
(11th Cir. 2006) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.
Ct. 1817 (1973), and analyzing a retaliation claim under the Family and Medical
Leave Act). Under this framework, if the plaintiff presents a prima facie case, and
the employer presents a legitimate, nonretaliatory reason for its decision, the
plaintiff must then show that the employer’s proffered reasons were pretextual. 2
Id.To establish a prima facie case of retaliation, the plaintiff may show that
(1) he engaged in a statutorily protected expression, (2) he suffered a materially
adverse action, and (3) there was a causal link between the adverse action and his
protected expression. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1260-61 (11th
Cir. 2001) (setting forth elements of a prima facie case); see also Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 2415 (2006)
(discussing materially adverse action element).
2
We have cautioned that establishing the elements of the McDonnell Douglas framework is not
the only way to survive summary judgment in an employment discrimination case, and that a
plaintiff may also present “a convincing mosaic” of circumstantial evidence that raises a
reasonable inference that the employer intentionally discriminated against her. Smith v.
Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). Here, although the district court
addressed Lewis’s claims broadly under the convincing mosaic standard in this case Lewis
abandoned any argument under that standard by failing to raise it on appeal. Holland v. Gee, 677
F.3d 1047, 1055 (11th Cir. 2012) (recognizing that we do not consider arguments not raised in a
party’s initial brief).
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To prove a causal connection, a plaintiff need only demonstrate “that the
protected activity and the adverse action were not wholly unrelated.” Shotz v. City
of Plantation, 344 F.3d 1161, 1180 n.30 (11th Cir. 2003) (quoting Farley v.
Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999)). This element is
to be construed broadly. Id. The plaintiff must generally establish that the
employer was actually aware of the protected expression at the time it took the
adverse employment action. Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192,
1197 (11th Cir. 1997). Then, one way the plaintiff can establish that the adverse
action and protected activity were not “wholly unrelated” is by showing a close
temporal proximity between the employer’s discovery of the protected activity and
the adverse action. Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004). The
temporal proximity must be “very close.” Id. (quoting Clark Cnty. Sch. Dist. v.
Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 1511 (2001)). A three-to-four-month
delay is too long, Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.
2007), while a one-month gap may satisfy the test, Higdon, 393 F.3d at 1220.
We held that a Title VII plaintiff asserting retaliation failed to establish
causation, even though the employer refused to hire her for a permanent position
shortly after she had filed a complaint of sexual harassment, because it was clear
from the record that the plaintiff failed to meet the employer’s qualifications for
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permanent employment. Fleming v. Boeing Co., 120 F.3d 242, 248 (11th Cir.
1997).
To show pretext, a plaintiff must show that an employer’s reasons are false
“and that discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 515, 113 S. Ct. 2742, 2752 (1993). In doing so, a plaintiff “cannot recast
the reason but must meet it head on and rebut it.” Holland v. Gee, 677 F.3d 1047,
1055 (11th Cir. 2012) (quoting Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088
(11th Cir. 2004)). Ultimately, the employee must prove that “the desire to retaliate
was the but-for cause of the challenged employment action.” Univ. of Tex. Sw.
Med. Ctr. v. Nassar, 570 U.S. 338, 352, 133 S. Ct. 2517, 2528 (2013). If the
employer proffers more than one legitimate, non-discriminatory reason, the
plaintiff must rebut each of the reasons to survive a motion for summary judgment.
Chapman v. AI Transp., 229 F.3d 1012, 1037 (11th Cir. 2000) (en banc).
Specifically, the employee must produce evidence sufficient to permit a reasonable
factfinder to conclude that the employer’s reason was not the real reason for the
adverse employment action. Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295,
1313 (11th Cir. 2016). The inquiry into pretext centers on the employer’s beliefs,
not the employee’s beliefs or “reality as it exists outside of the decision maker’s
head.” Alvarez, 610 F.3d at 1266.
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To establish pretext, the plaintiff cannot merely make conclusory allegations
and assertions, but must present concrete evidence in the form of specific facts
showing that the employer’s reason for terminating her was merely pretextual.
Bryant v. Jones, 575 F.3d 1281, 1308 (11th Cir. 2009). The plaintiff may
demonstrate pretext by revealing “such weaknesses, implausibilities,
inconsistencies, incoherencies or contradictions” in the employer’s proffered
reasons for its actions that a reasonable factfinder could find them “unworthy of
credence.” See Springer v. Convergys Customer Mgmt. Grp., Inc., 509 F.3d 1344,
1348 (11th Cir. 2007) (quoting Cooper v. S. Co., 390 F.3d 695, 725 (11th Cir.
2004)). “The heart of the pretext inquiry is not whether the employee agrees with
the reasons that the employer gives for the discharge, but whether the employer
really was motivated by those reasons.” See Standard v. A.B.E.L. Servs. Inc., 161
F.3d 1318, 1333 (11th Cir. 1998).
When an employer asserts that it has fired an employee based on reported
workplace incidents, the employee must not only dispute that those incidents
occurred, but also call into question the employer’s sincere belief that they
occurred. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 771 (11th Cir. 2005).
We have held that an employer’s honest belief based on information that the
employee violated its policies can constitute a legitimate reason for termination
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even if the employer’s belief may have been mistaken or wrong. See Smith v.
PAPP Clinic, P.A., 808 F.2d 1449, 1452-53 (11th Cir. 1987).
The district court properly granted summary judgment for Blue Bird on
Lewis’s claim that his termination constituted retaliation for his EEOC charges. It
is not clear from the district court’s decision whether it determined that Lewis had
established a prima facie case of retaliation regarding his termination; however, it
does not matter whether Lewis made out a prima facie case if he cannot meet Blue
Bird’s nonretaliatory reasons for his termination head on and rebut them. See
Holland, 677 F.3d at 1055. Accordingly, for purposes of discussion, we assume
that Lewis has established a prima facie case of retaliation.
Blue Bird met its burden of presenting a legitimate, nonretaliatory reason by
presenting evidence that it terminated Lewis because of his prior disciplinary
history, including a final written warning issued in June 2016, and his failure to
properly inspect the bus and his falsification of the checklist in August 2016.
Lewis disputed whether the high idle switch was activated when he conducted the
inspection, but he failed to show that Blue Bird did not sincerely believe that he
had failed to conduct the inspection properly. See Vessels, 408 F.3d at 771; Smith,
808 F.2d at 1452-53. Blue Bird provided evidence of its sincere belief that, based
on the fact that the bus was still in its factory settings and the switch was not
activated, Lewis failed to conduct the proper inspection.
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Lewis argues that the district court improperly relied on Washington’s
testimony regarding the high idle switch and the warranty claim because
Washington was not qualified to testify on the matter. However, the district court
made clear in its order that it was relying on Robirts’s testimony and the record
evidence documenting the inspection and the warranty claim, so Washington’s
testimony was not necessary to support the district court’s conclusion that Lewis
failed to conduct the full inspection and falsified the checklist. Further,
Washington clarified in her deposition that she spoke with an engineer and stated
in her declaration that she became familiar with specific subjects of her declaration
testimony by consulting outside sources.
Lewis did not show that Blue Bird was motivated by any prior protected
conduct or that retaliation was the but-for cause of his termination. See Nassar,
570 U.S. at 352, 133 S. Ct. at 2528. He provided no evidence of Blue Bird being
motivated by his prior EEOC charges in its decision to terminate him. Lewis
disputes whether Blue Bird was justified in terminating him after only one mistake
in inspections, but he fails to offer evidence that Blue Bird was not actually
motivated by his performance issues. See Standard, 161 F.3d at 1333. As noted
above, Lewis did not offer evidence that Blue Bird did not believe that he falsified
the checklist or had a history of workplace conflict, and Blue Bird’s honest belief
that he violated its policies was a legitimate reason for termination even if Lewis
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argued that its belief was mistaken. Vessels, 408 F.3d at 771; Smith, 808 F.2d at
1452-53. Lewis did not offer any evidence that mentioned his prior EEOC charges
at any point, prior to or during his termination, nor did he provide evidence that
Robirts or Blue Bird were motivated by retaliation for his EEOC charges rather
than his misconduct. Thus, the evidence, viewed in the light most favorable to
Lewis, did not create a genuine issue of material fact on the question of whether
Blue Bird’s legitimate, non-discriminatory reasons for terminating Lewis were
pretext for retaliation.
AFFIRMED.
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