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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12565
Non-Argument Calendar
____________________
KEIAN BUTTS, SR.,
Plaintiff-Appellant,
versus
CENTIMARK ROOFING CORPORATION,
Defendant- Appellee,
TAYLOR GILL, et al.,
Defendants.
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2 Opinion of the Court 21-12565
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-01578-MHC
____________________
Before JILL PRYOR, NEWSOM, and BRANCH, Circuit Judges.
PER CURIAM:
Keian Butts, Sr., appeals pro se the district court’s decision
to strike his belated supplemental filings from the record. Butts
also appeals the district court’s grant of summary judgment for his
former employer, CentiMark Roofing Corporation, on his claims
of race- and color-based employment discrimination and retalia-
tion.1
Butts argues that the district court erred in striking his sup-
plemental filings because they contained evidence that Centi-
Mark’s reasons for demoting and firing him were pretexts for dis-
crimination. He also argues that the district court erred in finding
1 Although Butts raises claims of sex-based discrimination on appeal, we con-
clude that we needn’t consider them because he did not raise them before the
district court in the first instance. See Ramirez v. Sec’y, Dep’t of Transp.,
686
F.3d 1239, 1249–50 (11th Cir. 2012).
When referring to himself, Butts’s opening brief alternates between male and
female pronouns. We use male pronoun throughout for consistency and clar-
ity.
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21-12565 Opinion of the Court 3
that he did not establish a prima facie case of discrimination, be-
cause even if he failed to identify a similarly situated comparator,
comparator evidence was not the only way to show discrimination.
Finally, Butts argues that there was a genuine dispute of material
fact as to his job requirements, showing that CentiMark’s accusa-
tions about his job performance were pretexts for race- and color-
based discrimination and for retaliation.
We address each point in turn.
I
We start with whether the district court abused its discretion
in refusing to consider Butts’s supplemental filings. 2 A district
court’s refusal to consider an untimely opposition to a summary
judgment motion is not an abuse of discretion. Young v. City of
Palm Bay,
358 F.3d 859, 863–64 (11th Cir. 2004). Neither is the
court’s refusal to accept out-of-time affidavits. Useden v. Acker,
947 F.2d 1563, 1571–72 (11th Cir. 1991). While pleadings of pro se
litigants are liberally construed, they still must comply with
2 We review a district court’s application of its own rules for an abuse of dis-
cretion and give “great deference to a district court’s interpretation of its local
rules.” Mann v. Taser Int’l, Inc.,
588 F.3d 1291, 1302 (11th Cir. 2009) (quota-
tion omitted). This includes a district court’s decision to strike a party’s plead-
ings. Young v. City of Palm Bay,
358 F.3d 859, 863 (11th Cir. 2004). Under
this standard, a district court’s decision will be upheld if it is within the permis-
sible range of decisions and not influenced by a mistake of law. Betty K Agen-
cies, Ltd. v. M/V Monada,
432 F.3d 1333, 1337 (11th Cir. 2005).
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4 Opinion of the Court 21-12565
procedural rules. Albra v. Advan, Inc.,
490 F.3d 826, 829 (11th Cir.
2007) (per curiam).
The pertinent local rules are Rules 7.1(B), 7.1(F), and 56.1(C)
of the Local Rules for the Northern District of Georgia. Rule 7.1(B)
establishes that any responsive materials in opposition to a sum-
mary judgment motion must be filed within 21 days after the ser-
vice of the motion. N.D. Ga. Civ. R. 7.1(B). Rule 7.1(F) allows the
court to decline to consider any motion or brief filed out of time or
otherwise not in compliance with the local rules. N.D. Ga. Civ. R.
7.1(F). And Rule 56.1(A) precludes parties from filing supplemental
briefs and materials at the summary judgment stage without leave
of the court. N.D. Ga. Civ. R. 56.1(A).
Here, the district court did not abuse its discretion in striking
Butts’s belated filings because (1) he submitted them after the dead-
line for doing so, (2) he did so without leave of the court, and (3) he
did not demonstrate good cause for his omission. CentiMark
moved for summary judgment on December 21, 2020. Under Lo-
cal Rule 7.1(B), Butts’s memorandum in opposition and any other
materials were due within 21 days—no later than January 11, 2021.
N.D. Ga. Civ.. R. 7.1(B). He did not file his supplemental materials
until February 4, 2021, more than three weeks after this deadline.
He also did not move to extend the deadline and, although he
stated that he missed the deadline by mistake, he did not explain
what his mistake was or why it should be excused, or otherwise
demonstrate good cause for his omission. Thus, the district court
was entitled to strike his late-filed documents.
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21-12565 Opinion of the Court 5
II
The district court also properly granted summary judgment
to CentiMark on Butts’s discrimination claim. Summary judgment
is appropriate when the evidence, viewed in the light most favora-
ble to the nonmovant, presents no genuine dispute as to any mate-
rial fact and requires judgment as a matter of law. Holloman v.
Mail-Well Corp.,
443 F.3d 832, 836–37 (11th Cir. 2006). 3
Butts’s discrimination claim is based on Title VII of the Civil
Rights Act, which forbids employment discrimination against any
person based on their “race, color,” or a handful of other protected
classifications. 42 U.S.C. § 2000e-2(a). Discrimination can be
proven through either direct or circumstantial evidence. Hinson
v. Clinch Cnty., Ga. Bd. of Educ.,
231 F.3d 821, 827 (11th Cir. 2000).
When evaluating claims of discrimination based on circum-
stantial evidence, courts may use the burden-shifting framework
established in McDonnell Douglas Corp. v. Green,
411 U.S. 792
(1973). See Alvarez v. Royal Atl. Devs., Inc.,
610 F.3d 1253, 1264
(11th Cir. 2010). Generally, to support a prima facie claim of racial
discrimination based on circumstantial evidence under the
McDonnell-Douglas framework, a plaintiff must show, among
other things, that his employer treated similarly situated employ-
ees who were not members of his class more favorably than the
3We review a district court’s grant of summary judgment de novo. Hollo-
man,
443 F.3d at 836.
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6 Opinion of the Court 21-12565
plaintiff. Rice-Lamar v. City of Fort Lauderdale,
232 F.3d 836, 842–
43 (11th Cir. 2000). 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 reason-
ably be distinguished.” Lewis v. City of Union City,
918 F.3d 1213,
1218, 1228 (11th Cir. 2019) (en banc) (quotation marks omitted).
Although this standard requires a case-by-case analysis and formal
labels regarding job title are unnecessary, a similarly situated com-
parator will have ordinarily engaged in the same basic misconduct
as the plaintiff; been subject to the same employment policy, guide-
line, or rule; shared the same supervisor; and shared the plaintiff’s
employment or disciplinary history.
Id. at 1227–28.
If a plaintiff cannot produce a comparator, he can still pre-
sent a triable issue of fact through a “convincing mosaic” of circum-
stantial evidence that would allow an inference of discriminatory
intent.
Id. at 1220 n.6. A “convincing mosaic” may be shown by
evidence of “(1) suspicious timing, ambiguous statements . . ., and
other bits and pieces from which an inference of discriminatory in-
tent may be drawn, (2) systematically better treatment of similarly
situated employees, and (3) that the employer’s justification is pre-
textual.” Lewis v. City of Union City, Georgia,
934 F.3d 1169, 1185
(11th Cir. 2019) (quotation omitted). For example, we have found
a “convincing mosaic” of evidence, sufficient to survive summary
judgment, where a company had substantial incentive to discipline
white employees more harshly than black employees due to re-
peated bad publicity about a violent, anti-black hate crime in their
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21-12565 Opinion of the Court 7
workplace. See Smith v. Lockheed-Martin Corp.,
644 F.3d 1321,
1328, 1341–47 (11th Cir. 2011).
We have also considered whether an employer consciously
factored race into its disciplinary decision-making process, includ-
ing by noting each employee’s race in a decision-making spread-
sheet used to determine disciplinary outcomes.
Id. at 1336. We
found a “convincing mosaic” of circumstantial evidence of preg-
nancy discrimination when the plaintiff’s supervisor repeatedly
called her disparaging names and vowed to “find a way to write
[her] up and get her out of here,” and where it reassigned the plain-
tiff eight days after returning from maternity leave. Hicks v. City
of Tuscaloosa,
870 F.3d 1253, 1255–57 (11th Cir. 2017) (quotation
omitted).
Turning to the merits of Butts’s race- and color-based dis-
crimination claims, we conclude that the district court did not err
by granting CentiMark’s motion for summary judgment. Butts
failed to identify a similarly situated employee from outside his pro-
tected class who was given preferential treatment. Rice-Lamar,
232 F.3d at 842–43. Specifically, Butts’s proposed comparators did
not share his disciplinary or employment history. Johnny Street-
man, Butts’s primary proposed comparator, had worked for Centi-
Mark for 14 years—as compared to Butts’s 2 years—and, unlike
Butts, hadn’t been previously disciplined for failing to complete
technical training assignments or failing to show up to work. Thus,
Streetman was not “similarly situated” for the purposes of a dis-
crimination claim. The only other comparator to whom Butts
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8 Opinion of the Court 21-12565
points is Patrick McKenzie. But Butts provided no information
about McKenzie’s employment or disciplinary history, including
whether McKenzie successfully completed technical training, ever
behaved disrespectfully at a disciplinary hearing, or ceased coming
to work. Thus, Butts failed to provide a comparator who was
treated differently.
We also conclude that Butts did not present a “convincing
mosaic” of discrimination. The two isolated comments made by
Butts’s supervisor on which Butts relies are not the type of remarks
that we’ve held show racial discrimination. See, e.g., E.E.O.C. v.
Alton Packaging Corp.,
901 F.2d 920, 923 (11th Cir. 1990) (“[Y]ou
people can’t do a [expletive] thing right.”); Miles v. M.N.C. Corp.,
750 F.2d 867, 874, 876 (11th Cir.1985) (“[H]alf of them weren’t
worth a [expletive].”). Furthermore, CentiMark did not reference
race during its disciplinary process, and it had no incentive to treat
white employees preferentially. Cf. Smith,
644 F.3d at 1336–37,
1341. And nobody called Butts any defamatory names or expressed
a desire to “find a way” to terminate him. Hicks, 870 F.3d at 1255–
57. Lastly, Butts did not identify any similarly situated employ-
ees—let alone systematic better treatment of such employees—and
has not shown that his supervisor’s statements or actions were sus-
piciously timed. Lewis, 934 F.3d at 1185.
III
Title VII also prohibits employers from retaliating against an
employee for opposing an unlawful practice or participating in a
proceeding to enforce their rights. 42 U.S.C. § 2000e-3(a).
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21-12565 Opinion of the Court 9
Under the McDonnell-Douglas framework, if a plaintiff es-
tablishes a prima facie case of retaliation and the employer articu-
lates legitimate, nondiscriminatory reasons for its action, the bur-
den shifts back to the plaintiff to show that the defendant’s stated
reasons were pretextual. McDonnell Douglas,
411 U.S. at 807. To
show pretext, a plaintiff must specifically respond to the employer’s
proffered reasons and produce evidence directly rebutting those
reasons. Holland v. Gee,
677 F.3d 1047, 1055–56 (11th Cir. 2012).
A plaintiff may show that an employer’s reasons are pre-
textual by showing that “weaknesses, implausibilities, inconsisten-
cies, incoherencies or contradictions in [its] proffered legitimate
reasons for its actions [were such] that a reasonable factfinder could
find them unworthy of credence.” Springer v. Convergys Cus-
tomer Mgmt. Grp., Inc.,
509 F.3d 1344, 1348 (11th Cir. 2007) (quo-
tation marks omitted). If the proffered reason is one that would
motivate a reasonable employer, a plaintiff cannot simply quarrel
with the wisdom of the employer’s decision. Chapman v. AI
Transp.,
229 F.3d 1012, 1030 (11th Cir. 2000) (en banc). Ultimately,
a proffered reason cannot “be a pretext for discrimination unless it
is shown both that the reason was false, and that discrimination
was the real reason.” St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502,
515 (1993) (quotation marks and emphasis omitted).
Here, we conclude that the district court properly granted
summary judgment to CentiMark on Butts’s retaliation claims be-
cause he failed to show that the reasons for demoting and termi-
nating him—failing to complete training assignments, failing to
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10 Opinion of the Court 21-12565
develop adequate technical skills, behaving disrespectfully during a
disciplinary meeting, and failing to come to work several days in a
row—were false, and that the true reason was retaliatory. Accord-
ingly, we affirm.
AFFIRMED.
