Edwin Jones v. Birmingham, City of

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12962
Non-Argument Calendar
____________________
EDWIN JONES,
Plaintiff-Appellant,
versus
BIRMINGHAM, CITY OF,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:19-cv-01426-CLM
____________________
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2 Opinion of the Court 21-12962
Before LUCK, LAGOA, and BRASHER, Circuit Judges.
PER CURIAM:
Edwin Jones appeals the district court’s grant of summary
judgment to his employer, the City of Birmingham, on his claims
of race discrimination, retaliation, and hostile work environment
under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e-2(a), 3(a).
We conclude that the district court correctly granted summary
judgment as to the first two of these claims. But to the extent that
Jones asserted that he was subject to a retaliatory hostile work en-
vironment, the district court analyzed that claim under the wrong
legal standard. We therefore partially vacate its decision as to that
claim and remand for further proceedings.
I.
Jones, a black man, works for the City as a police officer. In
2015, he filed a charge of discrimination against the City with the
Equal Employment Opportunity Commission, accusing another
officer named Julie Quigley-Vining of retaliation and discrimina-
tion. In 2016, Jones filed a federal lawsuit that settled three years
later.
In 2018, the police department began investigating Jones for
performing paid work on the side while on the clock as a police
officer. The commanding officer, Nashonda Howard, assigned of-
ficer Rebecca Herrera to conduct the investigation.
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21-12962 Opinion of the Court 3
Shortly thereafter, the department launched another inves-
tigation into Jones’s handling of a car accident that caused the death
of a pedestrian. Howard again assigned Herrera to investigate, and
Jones asked that she be removed from the investigation because
she was friends with Quigley-Vining—the subject of his earlier law-
suit. David Rockett, the officer in charge of the investigative divi-
sion, denied his request. At the conclusion of the second investiga-
tion, Rockett decided to send Jones a “letter of counseling” because
he failed to activate his body camera while investigating the traffic
accident.
Jones was later at a meeting with the department’s deputy
chief, Michael Richards, who threatened those present against
making any complaints to the EEOC, human resources, or the po-
lice chief.
Jones subsequently filed another charge of discrimination
with the EEOC, and then filed this case in federal court. He as-
serted that the City discriminated against him based on his race by
launching the two internal investigations and by issuing the letter
of counseling. He also claimed that it retaliated against him for his
earlier EEOC complaint and lawsuit, and that it created a hostile
work environment.
The City moved for summary judgment, which the district
court granted. Regarding the race discrimination claim, the court
explained that Jones failed to point to any similarly situated person
outside his protected group that the City had treated more favora-
bly. As for the retaliation claim, it reasoned that there was no
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4 Opinion of the Court 21-12962
evidence that anyone in charge of launching the investigations
knew about Jones’s earlier EEOC complaint or his lawsuit. It also
noted that the investigations occurred too long after the filing of
the complaint and lawsuit to establish a causal link. Finally, the
court determined that any harassment that Jones had experienced
was not severe or pervasive enough to create a hostile work envi-
ronment.
Following the grant of summary judgment on his claims,
Jones timely appealed.
II.
We review de novo the district court’s grant of summary
judgment and apply the same standard used by the district court.
Burton v. Tampa Hous. Auth., 271 F.3d 1274, 1276-77 (11th Cir.
2001). 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);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A court, how-
ever, must view all facts in the record in the light most favorable to
the nonmovant and draw all inferences in his favor. Frederick v.
Sprint/United Mgmt. Co., 246 F.3d 1305, 1311 (11th Cir. 2001). Un-
supported speculation does not create a genuine issue of fact. Cor-
doba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005).
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III.
On appeal, Jones argues that the district court erred by
granting summary judgment to the City on his claims for race dis-
crimination, retaliation, and hostile work environment. We ad-
dress each of these claims in turn.
A.
First, Jones argues that he created a genuine issue of material
fact as to his race discrimination claim.
A plaintiff can survive summary judgment on a race discrim-
ination claim based on circumstantial evidence in either of two
ways. He may rely on the McDonnell Douglas framework, which
initially requires the plaintiff to establish that “(1) he belongs to a
protected class; (2) he suffered an adverse employment action; (3)
he was qualified to perform the job in question; and (4) his em-
ployer treated ‘similarly situated’ employees outside his class more
favorably.” Jenkins v. Nell, 26 F.4th 1243, 1249 (11th Cir. 2022)
(quoting Lewis v. City of Union City, Ga., 918 F.3d 1213, 1220–21
(11th Cir. 2019)). To satisfy the fourth element of this test, he must
point to a “comparator” who is “similarly situated in all material
respects.” Id. (quoting Lewis, 918 F.3d at 1224). Such a person or-
dinarily will have engaged in the same basic misconduct as the
plaintiff; been subject to the same employment policies; shared the
same supervisor; and shared the plaintiff’s employment or discipli-
nary history. Id.
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6 Opinion of the Court 21-12962
As an alternative to the McDonnell Douglas framework, the
plaintiff can present circumstantial evidence that, “viewed in a light
most favorable to the plaintiff, presents a convincing mosaic” of
discriminatory intent. Id. at 1250 (quoting Smith v. Lockheed-Mar-
tin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)). For example, he
can point to “(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) evidence that the employer’s justification is a pretext. Id.(quoting Lewis v. City of Union City, Ga., 934 F.3d 1169, 1185 (11th
Cir. 2019)).
Here, Jones relies on both theories in support of his claim.
Under the McDonnell Douglas framework, he asserts that he suf-
fered adverse employment actions because he was subject to an in-
vestigation after handling the traffic accident, and he was not al-
lowed to amend his traffic report. He points to a single comparator
in support of his claim: a white officer named Donald Mason. He
argues that Mason received preferential treatment because he was
allowed to amend a traffic accident report and was not investigated
after doing so.
But as the district court pointed out, Jones was not similarly
situated to this comparator. There was a notable difference be-
tween their respective misconduct—Jones failed to turn on his
body camera at the accident, but there is no evidence that Mason
made this same mistake. The context of the misconduct was also
different—Jones’s accident involved a fatality, Mason’s did not.
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And Jones failed to produce any evidence that he and Mason had
similar employment or disciplinary history. Because Jones was dis-
similarly situated to Mason in these material respects, he could not
establish a prima facie discrimination claim under the McDonnell
Douglas framework. See Jenkins, 26 F.4th at 1249.
Under a “convincing mosaic” theory, Jones again asserts that
he was treated less favorably than Mason, and he argues that the
letter of counseling that he received was a pretext for discrimina-
tion. As just explained, Mason is not an adequate comparator in
this case. And Jones’s bald assertion regarding the letter of counsel-
ing is hardly enough to create a triable issue of fact regarding the
City’s discriminatory intent. We thus conclude that the district
court correctly granted summary judgment on this claim.
B.
Second, Jones contends that the district court should not
have granted summary judgment on his retaliation claim.
To set out a prima facie case of retaliation based on circum-
stantial evidence, a plaintiff must prove that he suffered an adverse
employment action that was causally linked to a statutorily pro-
tected activity. Brown v. Alabama Dep’t of Transp., 597 F.3d 1160,
1181 (11th Cir. 2010) (quoting Bryant v. Jones, 575 F.3d 1281, 1307
(11th Cir. 2009)). To establish a causal connection, the plaintiff
must show that (1) the decisionmakers knew of his protected activ-
ity, and (2) the protected activity and the adverse action were not
wholly unrelated. Shannon v. Bellsouth Telecomms., Inc., 292 F.3d
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8 Opinion of the Court 21-12962
712, 716 (11th Cir. 2002). “It is not enough for the plaintiff to show
that someone in the organization knew of the protected expres-
sion; instead, the plaintiff must show that the person taking the ad-
verse action was aware of the protected expression.” Bass v. Bd. of
Cnty. Comm’rs, Orange Cnty., Fla., 256 F.3d 1095, 1119 (11th Cir.
2001).
Jones argues that he engaged in protected activity by filing
his first EEOC charge and the federal civil lawsuit that followed.
He argues that the City took adverse action by conducting two in-
ternal affairs investigations, sending him a letter of counseling, and
refusing to remove Herrera from one of the investigations. And he
argues that the district court erred in finding that these adverse ac-
tions lacked temporal proximity to his protected activity because
his federal lawsuit was ongoing during the investigations.
Regardless of whether Jones met the other requirements for
a retaliation claim, he did not present evidence that the relevant
decisionmakers knew about his EEOC complaint or his lawsuit.
Howard was responsible for initiating the investigations, and Rock-
ett was the one who decided to issue the letter of counseling. Alt-
hough these individuals may have known Quigley-Vining, who
was the subject of Jones’s earlier lawsuit, this personal connection
alone is not enough to create a genuine issue of fact regarding their
knowledge of his protected conduct. Jones has therefore failed to
establish a prima facie case of retaliation, and the district court cor-
rectly granted summary judgment. See Brown, 597 F.3d at 1181;
Shannon, Inc., 292 F.3d at 716.
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21-12962 Opinion of the Court 9
C.
Third, Jones argues that the district court erred by granting
summary judgment on his claim for hostile work environment.
There are two types of hostile work environment claims un-
der Title VII: one based on discrimination, and the other based on
retaliation. Babb v. Sec’y, Dep’t of Veterans Affs., 992 F.3d 1193,
1206–07 (11th Cir. 2021). The tests for these claims differ in at least
one important respect. To establish a discrimination-based hostile
work environment, a plaintiff must prove that his employer was
responsible for “severe or pervasive” harassment based on the
plaintiff’s protected characteristic. Adams v. Austal, 754 F.3d 1240,
1249 (11th Cir. 2014). But the standard for a retaliation-based hos-
tile work environment claim simply requires that the employer’s
action “might have dissuaded a reasonable worker” from filing a
charge of discrimination. Babb, 992 F.3d at 1196 (quoting Burling-
ton Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 68
(2006)).
In his second amended complaint, Jones appears to have
raised both types of claims. Regarding a discriminatory hostile
work environment, he asserted that the investigations and related
actions were racially motivated. And regarding a retaliatory hostile
work environment, he asserted that Richards “openly forbade” him
and his coworkers from contacting human resources or the EEOC
with complaints. His later testimony elaborated on the graphic
threat that Richards issued against taking any such action.
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Yet the district court applied only a “severe or pervasive”
standard in its hostile work environment analysis, including in its
discussion of Richards’s threat. Because the court erred by failing
to apply the less onerous “might have dissuaded a reasonable
worker” test, we will remand the retaliation-based hostile work en-
vironment claim for it to properly address in the first instance. We
express no opinion on any of the other elements of a retaliatory
hostile work environment claim.
However, because Jones’s appellate brief addresses only the
incident with Richards, he has abandoned any claim that he was
subject to a discrimination-based hostile work environment. See
Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.
2014) (“When an appellant fails to challenge properly on appeal
one of the grounds on which the district court based its judgment,
he is deemed to have abandoned any challenge of that ground, and
it follows that the judgment is due to be affirmed.”). We therefore
affirm the grant of summary judgment to the extent that his claim
was based on racial discrimination.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED FOR FURTHER PROCEEDINGS.