Bernard Campbell v. Secretary, Department of veterans Administration

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
_____________________________
No. 13-11974
Non-Argument Calendar
_____________________________
D.C. Docket No. 8:11-cv-00377-MSS-TBM
BERNARD CAMPBELL,
Plaintiff-Appellant,
versus
ERIC SHINSEKI, SECRETARY,
U.S. DEPARTMENT OF VETERANS AFFAIRS,
Defendant-Appellee.
_____________________________
Appeal from the United States District Court
for the Middle District of Florida
_____________________________
(November 25, 2013)
Before HULL, MARCUS, and JORDAN, Circuit Judges.
PER CURIAM:
Rev. Bernard Campbell, proceeding pro se, appeals the district court’s order
which granted the renewed and amended motion for summary judgment of the
United States Department of Veterans Affairs (“the VA”) on his Title VII
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employment discrimination claims. Rev. Campbell had alleged disparate treatment
based on his religion, race, and gender, as well as retaliation. On appeal, Rev.
Campbell raises three issues. First, he argues that the district court erred in ruling
that he failed to provide sufficient evidence of pretext to rebut the VA’s legitimate,
non-discriminatory reasons for terminating him. Second, he asserts, for the first
time, that statements of his direct supervisor constituted direct evidence of racial
and gender discrimination. Finally, he contends that the district court erred by
failing to address his objections to evidence which supported the VA’s motion for
summary judgment under Rule 56(c)(2) of the Federal Rules of Civil Procedure
and that the court’s grant of summary judgment based on evidence which would be
inadmissible at trial warrants reversal.
We affirm. We do not address the argument concerning direct evidence
because Rev. Campbell did not make this argument to the district court. See D.E.
43 at 10; Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998)
(“Pro se pleadings are held to a less stringent standard than pleadings drafted by
attorneys . . . . But, issues not raised below are normally deemed waived.”)
(citations omitted).
I
In November of 2009, the VA terminated Rev. Campbell—who identifies as
a Protestant, African-American male—from his position as a Chaplain Resident
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and Clinical Pastoral Education (“CPE”) student after he had been employed for
about six weeks at a VA hospital in Tampa, Florida. Rev. Campbell’s educational
supervisor was an African-American female named Brenda Wallace, who
identified as a “liberal womanist theologian.” D.E. 29 at 6. The other student
chaplains were Loreen O’Brien, Karen Morris, and Carey Young, who all
identified as Caucasian females. Rev. Young identifies as a Presbyterian while
Rev. O’Brien and Rev. Morris identify as Christian. The supervisor for all
personnel in the Chaplain Service was James Taylor, the VA CPE Program
Director—who identified as a Caucasian male.
During Rev. Campbell’s employment, Rev. Young and Rev. O’Brien filed
Reports of Contact against Rev. Campbell, indicating that he had made each of
them feel threatened on two separate occasions. 1 Rev. Campbell also e-mailed
Chaplain Taylor to express his concerns about Chaplain Wallace, including a
specific statement she made to him during an altercation: “Did you ever think I am
hard on you because you are a man, a black man among three white women?”
D.E. 41 at 6.
Pursuant to the CPE’s policy, Chaplain Taylor notified Rev. Campbell that
the body responsible for handling disciplinary action—the Professional Advisory
Group (“PAG”)—was convening an investigative panel to address the two Reports
1
These include an occasion where Rev. Campbell blocked the exit of Rev. O’Brien during
a heated discussion and another involving group conversation about a recent workplace shooting.
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of Contact and to address Rev. Campbell’s complaints about Chaplain Wallace.
The investigative panel that handled Rev. Campbell’s case consisted of five
members of the PAG, including Chaplain Taylor. The PAG panel convened and
interviewed Chaplain Wallace along with Revs. Campbell, Young, O’Brien, and
Morris. After the interviews and upon review of the Reports of Contact and Rev.
Campbell’s concerns, the PAG panel unanimously recommended Rev. Campbell’s
termination.
Following the unanimous recommendation, the VA issued Rev. Campbell a
termination letter signed by Neal Hamilton, Chief of the Human Resources
Management Service. D.E. 39-1 at 1-5. The letter gave Rev. Campbell three
reasons for his termination: (1) “the failure to show your CPE Supervisor the
ability to enter the CPE Process Learning environment;” (2) “posing a threat to
peers;” and (3) “your stated unwillingness to enter the educational environment
unless the supervisor limits the process learning to those learning experiences that
are approved by you.” D.E. 39-1 at 2.
Rev. Campbell filed suit under Title VII, alleging disparate treatment based
on his religion, race, and gender, as well as retaliation. The VA filed a motion for
summary judgment, which the district court denied largely because the VA had
failed to authenticate the Reports of Contact and termination letter. D.E. 32 at 8-
10. After correcting this defect by submitting a declaration from the VA’s
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custodian of records, the VA filed an amended summary judgment motion. See
D.E. 39-3. In response, Rev. Campbell raised three objections to the admissibility
of the Reports of Contact and the termination letter under Federal Rule of Civil
Procedure 56(c)(2). The district court granted the VA’s amended summary
judgment motion without expressly ruling on Rev. Campbell’s Rule 56(c)(2)
objections. See D.E. 43. Rev. Campbell timely appealed.
II
We review a district court’s grant of summary judgment de novo, drawing
all reasonable factual inferences and viewing all evidence in the light most
favorable to the non-moving party. See Kragor v. Takeda Pharm. Am., Inc., 702
F.3d 1304, 1307 (11th Cir. 2012). Summary judgment is appropriate “if the
movant shows 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). See also Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). “The substantive law will identify
which facts are material,” and material facts are those which are key to establishing
a legal element of the substantive claim which might affect the outcome of the
case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A
A plaintiff can establish a claim of unlawful discrimination under Title VII
through direct or circumstantial evidence. See Akouri v. Fla. Dep’t of Transp., 408
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F.3d 1338, 1347 (11th Cir. 2005). When such a claim is based on circumstantial
evidence, we analyze the allocation of burdens and the presentation of proof under
the framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Kragor, 702 F.3d at 1308.
Under McDonnell Douglas, a plaintiff must first establish a prima facie case
of discrimination, which “in effect creates a presumption that the employer
unlawfully discriminated against the employee.” Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 254 (1981). If a plaintiff can establish a prima facie case,
the burden shifts to the employer to rebut the presumption of discrimination with
evidence of a legitimate, nondiscriminatory reason for the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802-03. “[T]o satisfy that burden of
production, the defendant need not persuade the court that it was actually
motivated by the proffered reasons. It is sufficient if the defendant’s evidence
raises a genuine issue of fact as to whether it discriminated against the plaintiff.”
Kragor, 702 F.3d at 1308.
If an employer satisfies this burden, “the plaintiff is afforded an opportunity
to show that the employer’s stated reason is a pretext for discrimination.” Id.
(citing Reeves, 530 U.S. at 143, and McDonnell Douglas, 411 U.S. at 804). See
also Kragor, 702 F.3d at 1308 n.1 (noting this does not shift the burden to the
plaintiff but provides “an opportunity to present evidence from which the trier of
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fact can find unlawful discrimination”). “If a plaintiff produces sufficient evidence
that the employer’s proffered reason is merely pretextual, that evidence may
sometimes be enough to preclude summary judgment in favor of the employer.” Id.
at 1308-09 (citations omitted). We now examine whether Rev. Campbell provided
sufficient evidence of pretext to preclude summary judgment in favor of the VA on
each of his claims. 2
A plaintiff can show pretext “either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by showing
that the employer’s proffered explanation is unworthy of credence.” Burdine, 450
U.S. at 256. See also Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir.
2000) (“[w]hen a plaintiff alleges disparate treatment, liability depends on whether
the protected trait . . . actually motivated the employer’s decision”) (citing Reeves,
530 U.S. at 141).
Rev. Campbell attempts to directly show pretext through Chaplain Wallace’s
statement to him: “Did you ever think I am hard on you because you are a man, a
black man among three white women?” D.E. 41 at 6. The record shows, however,
that Chaplain Wallace played no part in the process of deciding whether Rev.
2
The VA conceded for the sake of argument that Rev. Campbell could establish a prima
facie case for all of his claims, and focused only on the issue of whether he could show that the
VA’s legitimate, non-discriminatory reasons for terminating him were pretextual. Because the
district court did not address whether Rev. Campbell could establish a prima facie case, though it
had “serious doubt,” D.E. 43 at 12, we do not address the issue either and move directly to the
issue of pretext.
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Campbell would be terminated; she did not sit on the five-member PAG panel that
voted unanimously to recommend termination. See D.E. 39-1 at 5. Rev. Campbell
thus provides no direct evidence that the five-member PAG panel was motivated
by any reason to recommend his termination other than what is stated in the
termination letter—let alone a reason based on Rev. Campbell’s race, gender,
religion, or the fact that he filed a complaint against his supervisor. See Standard
v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) (“remarks by non-
decisionmakers or remarks unrelated to the decisionmaking process itself are not
direct evidence of discrimination”).
Nor does Rev. Campbell successfully show that the three reasons the VA
provided in the termination letter are unworthy of credence. For example, Rev.
Campbell provides no evidence that shows his “performance was satisfactory—if
not exemplary.” Appellant Br. at 19. Also, though the fact that Chaplain Wallace
was reprimanded and terminated sometime after Rev. Campbell may cast some
doubt on whether it was appropriate for Chaplain Taylor or the PAG panel to rely
on her assessments of his ability to learn in determining whether he should be
terminated, it certainly does not undermine the credibility of Rev. Campbell posing
a threat to his peers or his stated unwillingness to cooperate with the curriculum.
Finally, Rev. Campbell’s claims that the assertions in the Reports of Contact
against him “are false and the result of collusion,” D.E. 41 at 8, are insufficient to
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show the reasons for his termination are pretextual. The PAG panel, which
included Chaplain Taylor, conducted an investigation by hearing from Rev.
Campbell and Chaplain Wallace, Rev. O’Brien and Rev. Morris and reviewing all
related complaints—including Rev. Campbell’s Resident Complaint against
Chaplain Wallace. The PAG panel formed its recommendation to terminate Rev.
Campbell based on this investigation, and based on Rev. Campbell’s evidence, we
see no reason to question the veracity of the PAG panel’s belief that Rev.
Campbell was unsuccessful in his employment for legitimate, non-discriminatory
reasons. See Wilson, 376 F.3d at 1092 (“The role of this court is to prevent
unlawful hiring practices, not to act as a super personnel department that second-
guesses employers’ business judgments.”). In sum, Rev. Campbell’s attempt to
show pretext fails. Cf. Kroger, 702 F.3d at 1310-11 (reversing grant of summary
judgment to employer where plaintiff raised genuine issue of pretext by providing
evidence of statement by final decisionmaker that permitted reasonable
interpretation that employer’s “proffered nondiscriminatory reason was a cover-up
for discrimination”).
B
We now turn to the issue of Rev. Campbell’s Rule 56(c)(2) objections. Rev.
Campbell argues the district court committed reversible error by not explicitly
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addressing his objections and by relying on the Reports of Contact filed against
him and his letter of termination. We disagree.
1
First, though we do not encourage the practice, the district court did not
commit reversible error by failing to explicitly overrule or reject Rev. Campbell’s
objections. A district court’s failure to explicitly make an evidentiary
determination does not require remand if the record clearly supports the district
court’s implicit determination. See United States v. Taylor, 88 F.3d 938, 944 (11th
Cir. 1996) (affirming though district court’s ruling on sentencing enhancement did
not include individualized findings); United States v. Villarino, 930 F.2d 1527,
1528-29 (11th Cir. 1991) (“summary disposition of the parties’ dispute has not
precluded meaningful appellate review”) (internal citations omitted). The district
court’s order is best characterized, in part, as an evidentiary ruling on Rev.
Campbell’s objections sub silentio. See Davis v. Coca-Cola Bottling Co. Consol.,
516 F.3d 955, 973 n.39 (11th Cir. 2008) (“What we have, then, is a final judgment
in which the court, in its sweeping statement that all Title VII claims are time-
barred, included Jackson’s claims sub silentio.”).
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Rule 56(c)(2)’s language and its corresponding advisory committee notes
provide guidance here. 3 Rule 56(c)(2) explains that “[a] party may object that the
material cited to support or dispute a fact cannot be presented in a form that would
be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Among other changes,
Congress amended Rule 56 in 2010 to include this language. Before this
amendment, parties properly challenged evidence used in a summary judgment
motion by filing a motion to strike. See Rule 56, advisory committee’s note to
2010 amendments (“There is no need to file a separate motion to strike.”). The
plain meaning of these provisions show that objecting to the admissibility of
evidence supporting a summary judgment motion is now a part of summary
judgment procedure, rather than a separate motion to be handled preliminarily. See
Cutting Underwater Technologies USA, Inc. v. Eni U.S. Operating Co., 671 F.3d
512, 515 (5th Cir. 2012) (“[I]t is no longer necessary for a party to file such a
motion; instead, a party may simply object to the material.”).
Though the district court may not have explicitly addressed Rev. Campbell’s
objections, see generally D.E. 43, it implicitly disposed of them by granting the
summary judgment motion and relying on the evidence Rev. Campbell objected to
3
We have explained that although the interpretations in the advisory committee notes are
not binding, they are highly persuasive. See Horenkamp v. Van Winkle & Co., Inc., 402 F.3d
1129, 1132 (11th Cir. 2005).
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in its order—as part of the court’s process of deciding the summary judgment
motion “upon consideration of all relevant filings.” Id. at 1.
We now turn to whether the district court’s reliance on the objected-to
evidence in ruling on the VA’s summary judgment motion is grounds for reversal.
2
We review a district court’s evidentiary rulings for an abuse of discretion.
Anderson v. WBMG-42, 253 F.3d 561, 564 (11th Cir. 2001). Once a party makes a
Rule 56(c)(2) objection, “the burden is on the proponent to show that the material
is admissible as presented or to explain the admissible form that is anticipated.”
Fed. R. Civ. P. 56, advisory committee’s note to 2010 amendments. Rev.
Campbell raised three Rule 56(c)(2) objections. See D.E. 42.
He first objected to use of the Reports of Contact filed against him and the
termination letter. Id. at 1. By asserting Rule 56(c)(2) itself as a legal basis,
however, Rev. Campbell essentially argued that the reports and letter were
inadmissible at trial without providing a legal theory to explain why. As a result,
we must review the court’s implicit ruling on this objection for plain error. See
United States v. Massey, 443 F.3d 814, 818 (11th Cir. 2006) (“when the appealing
party does not clearly state the grounds for an objection in the district court, we are
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limited to reviewing for plain error”) (citation omitted). Under this standard,
reversible error exists where there is “(1) an error, (2) that is plain, and (3) that
affects substantial rights and then only if (4) the error seriously affects the fairness,
integrity, or public reputation of the judicial proceedings.” Id.
Here, the district court did not commit an error by implicitly overruling this
objection. The district court denied the VA’s first summary judgment motion
because the VA had failed to authenticate the Reports of Contact and the
termination letter. See D.E. 32 at 8-10. The VA corrected this defect by
submitting a declaration by the VA’s custodian of records with its amended
summary judgment motion. See D.E. 39-3. Thus, the court did not err by relying
on the Reports of Contact and the termination letter to decide the amended motion
because the VA’s authentication rendered them admissible under the business
records exception to the hearsay rule. See Fed. R. Evid. 803(6). See also Allen v.
Safeco Ins. Co. of Am., 782 F.2d 1517, 1519 (11th Cir. 1986).4
Rev. Campbell’s second objection concerned two sentences in the VA’s
amended motion—he argued that counsel for the VA was “testifying” and that it
was “complete speculation and fabrication.” D.E. 42 at 1. The district court did
4
For the first time on appeal, Rev. Campbell contests the competency of the custodian who
authenticated the Reports of Contact and termination letter. We do not consider this argument as
it was not raised below. See Tannenbaum, 148 F.3d at 1263.
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not abuse its discretion in implicitly overruling this objection because arguments of
counsel do not constitute substantive evidence.
Finally, Rev. Campbell objected to the partial inclusion of a statement he
made, arguing that the failure to provide the entire statement made the admission
of the partial statement improper under Rule 106 of the Federal Rules of Evidence.
The district court did not abuse its discretion in implicitly overruling this objection
because Rev. Campbell’s available remedy was to insist upon the inclusion of the
entire statement, rather than the exclusion of the excerpt submitted by the VA. See
Fed. R. Evid. 106 (“an adverse party may require the introduction, at that time, of
any other part . . . that in fairness ought to be considered at the same time”).
III
Accordingly, because Rev. Campbell did not provide any evidence of
pretext and because the district court did not commit reversible error, we affirm.
AFFIRMED.
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