Bachir Mihoubi v. Caribou Coffee Company, Inc.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 09, 2008
No. 07-14217 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-02441-CV-TWT-1
BACHIR MIHOUBI,
Plaintiff-Appellant,
versus
CARIBOU COFFEE COMPANY, INC.,
MICHAEL COLES,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(July 9, 2008)
Before EDMONDSON, Chief Judge, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Bachir Mihoubi appeals from a summary judgment ruling in favor of his
former employer, Caribou Coffee Company, and Caribou’s CEO, Michael Coles,
in this 42 U.S.C. § 1981 discrimination suit. The district court held that Mihoubi
failed to sufficiently rebut the defendants’ proffered legitimate reason for
terminating him or to demonstrate a nexus between his termination and his
complaints of discrimination to establish a claim for retaliation. For the reasons
stated below, we affirm.
BACKGROUND
Caribou hired Mihoubi as Vice President of Global Franchising in 2003.1
Coles contends that there were problems with Mihoubi’s performance from the
start. At Mihoubi’s deposition, Caribou introduced one email from Coles to
Mihoubi sent May 7, 2004 wherein Coles chastised Mihoubi for mistakes that
required extra work from other Caribou employees to compensate for Mihoubi’s
errors and for his inability to produce a business plan without the help of other
employees. In the email, Coles stated, “It is clear to me, that you have never been
in a position like this before . . . There is no officer in this company that I have
tried to help more, or have given more guidance and patience. I expected a lot
more depth and a lot more knowledge of the functionality of this department.”
Also, Coles completed an annual review for Mihoubi dated February 9, 2005
1
At the time he was hired, Caribou was a private company owned by an organization
with Muslim ties and operating in compliance with Muslim rules known as laws of Shari’ah.
2
which was, at best, mixed. In that review, Coles stated that Mihoubi “oversold
himself,” lacked experience, needed a more disciplined approach, and that his
continued refusal to move to Minneapolis was a “major problem.”2 The review,
however, also stated that Mihoubi excelled in “service orientation” and had
successfully accomplished a large deal with a Middle East partner and had
accomplished that goal “at a level economically that far exceeded [Caribou’s]
expectations.” This review was not signed by either Mihoubi or Coles, despite
signature lines for both. Coles asserts that signatures were omitted frequently from
performance reviews; Mihoubi claims he never received this evaluation.
Mihoubi, on the other hand, contends that his performance was well-
received at Caribou until Amy O’Neil was promoted and Mihoubi began reporting
to her. In 2004, Mihoubi worked on and finalized a large deal (the “Al-Sayer
deal”) to open a number of Caribou franchises in the Middle East. In March 2004
Mihoubi was given a $100,000 bonus in recognition of his accomplishments on the
Al-Sayer deal. This bonus represented 50% of Mihoubi’s annual salary and was
the largest bonus Caribou had given to anyone other than a CEO or President,
although it was less than the $325,000 Mihoubi had requested. Mihoubi also
received a 4.5% increase in his annual salary. Also in 2004, Coles gave Mihoubi a
2
Caribou’s headquarters were in Minneapolis, but Caribou allowed Mihoubi to work out
of an Atlanta office.
3
rating of “1B” on his annual performance review.3 Coles gave O’Neil the same 1B
rating in her annual review and referred to her as a “superstar” who had “exceeded
all of [Coles’] expectations.”
The concrete problems Caribou raised concerning Mihoubi’s work
performance started in the spring of 2005. In addition to its claim that Mihoubi
performed poorly from the beginning, Caribou cited two major failures by Mihoubi
starting that spring. Coles and O’Neil asked Mihoubi to create a multi-year
business plan, which he failed to do to their satisfaction. Mihoubi also failed to
deliver background financial information on the Fong Tat group, a potential
franchisee in Singapore.
Regarding the business plan, O’Neil testified in her deposition that she had
to badger Mihoubi repeatedly to get him to prepare and present a business plan,
and that when he finally did present his plan it was too short (Mihoubi planned
only one half hour to present the plan which she found inadequate), too non-
specific, and insufficiently supported by data. O’Neil also stated that Mihoubi
made it difficult to set up the meeting to present the plan because he canceled one
meeting at the last minute and was generally unavailable. Mihoubi responded that
he was never asked to produce a business plan prior to March 2005 other than one
3
This evaluation was also not signed by either Mihoubi or Coles.
4
he presented at the beginning of his employment in 2003. Mihoubi also asserted
that he did prepare a business plan and tried to present the plan to O’Neil at their
meeting on June 7, 2005. According to Mihoubi, O’Neil prevented him from
presenting his plan at that meeting by interrupting him argumentatively, yelling at
him, and cutting the meeting short. Mihoubi also contends that a half hour was
adequate because, in his experience, business executives generally do not want to
listen for longer than that time period.
Mihoubi also disputes Caribou’s assessment of his work on the Fong Tat
group. Mihoubi claims that the Fong Tat deal had already been established
through an earlier letter of intent, and thus, his analysis of the Fong Tat group’s
financial stability was unnecessary.
Mihoubi contends that O’Neil and Coles manufactured these pretextual
reasons for firing him because of their dislike for Middle Eastern Arabs. Mihoubi
provided evidence of derogatory comments made by both O’Neil and Coles
regarding Arabs and Muslims. Tom Berzinski, former Vice President of Real
Estate and Store Development for Caribou, testified in his deposition that O’Neil
had commented to him that “she did not feel comfortable having someone like that
reporting to her” after she interviewed a potential employee of Middle Eastern
descent. Berzinski understood this comment to refer to Middle Easterners.
5
Berzinski told O’Neil that she “can’t say something like that,” to which O’Neil
responded “It’s just you and I talking Tom.” According to Christopher Toal,
former Vice President of Marketing at Caribou, O’Neil said at a senior staff
meeting that she could not wait to get the Muslim ownership of Caribou behind
them because she did not like being involved with “those guys.” Toal understood
her to mean Muslims. Toal testified in his deposition that O’Neil and Coles made
other derogatory comments about Arabs at that meeting, although he could not
remember the specific comments.
Mihoubi also produced evidence of anti-Arab statements made by Coles.
Toal testified that Coles expressed reluctance at returning to Bahrain because he
was not looking forward to dealing with “those guys” which Toal believed referred
to Arabs and Middle Easterners. Mihoubi testified that when he offered to write a
card in Arabic for Coles to send to an Arab executive for a Muslim holiday, Coles
responded that he could not believe that he (Coles) was lowering himself to this
level. Mihoubi also testified that Coles made fun of the way men were dressed
when he and Mihoubi were on a business trip in Bahrain. Coles also allegedly
remarked that he disliked conforming to Shari’ah laws in Caribou’s business.
When O’Neil and Coles began criticizing Mihoubi heavily in the Spring of
2005 about his failure to produce a business plan and to complete the financial
6
review of the Fong Tat group, Mihoubi complained that he was being
discriminated against. On May 11, 2005, Mihoubi emailed Coles and O’Neil
alleging that they were discriminating against him on the basis of his religion and
national origin. Mihoubi then filed a discrimination charge with the EEOC. The
EEOC sent a charge notification, but because it was first sent to Mihoubi’s Atlanta
office, O’Neil received the notification around July 11, 2005. O’Neil informed
Mihoubi that he was being terminated on July 19, 2005. O’Neil testified in her
deposition that she had decided to terminate Mihoubi in the first week of July, and
simply waited to tell him in person when he arrived in Minneapolis for a meeting.
Mihoubi filed suit against Caribou and Coles under 42 U.S.C. § 1981
alleging that he was terminated for discriminatory reasons and that Caribou
retaliated against him for complaining of discrimination and filing a charge with
the EEOC.4 The district court granted summary judgment for the defendants; it
held that Mihoubi had failed to provide sufficient evidence to rebut the defendants’
assertions of unsatisfactory job performance. The court also found that Mihoubi
had failed to prove his retaliation claim in light of O’Neil’s testimony that she had
decided to fire him before receiving the EEOC charge.
4
Mihoubi also alleged racial harassment but expressly abandoned that claim. Thus, we
will not address that issue.
7
STANDARD OF REVIEW
We review a summary judgment ruling de novo. Williams v. BellSouth
Telecomms., Inc., 373 F.3d 1132, 1134 (11th Cir. 2004). Summary judgment is
appropriate where the pleadings, discovery materials on file, and any affidavits
demonstrate that there is no genuine issue of material fact and that the movant is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986).
DISCUSSION
I. Discrimination
The McDonnell Douglas analysis for reviewing circumstantial evidence
applies here.5 Rice-Lamar v. City of Ft. Lauderdale, 232 F.3d 836, 843 n.11 (11th
Cir. 2000) (noting that this court applies the Title VII McDonnell Douglas
framework to § 1981 discrimination claims). The parties agree that Mihoubi made
out a prima facie case of discrimination and that Caribou responded with a
legitimate, non-discriminatory reason for his termination. Under McDonnell
Douglas, therefore, the burden shifted back to Mihoubi to prove that Caribou’s
proffered reason was not the true reason, but was a pretext for discrimination. See
EEOC v. Joe’s Stone Crabs, 296 F.3d 1262, 1273 (11th Cir. 2002). Thus, we must
5
On appeal, Mihoubi concedes that he has presented no direct evidence.
8
determine whether Mihoubi created a genuine issue of material fact regarding
whether Caribou terminated him based on an unlawful motive. See Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1090 (11th Cir. 2004).
Mihoubi may prove that Caribou’s proffered reason for firing him was
pretextual “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.” Texas Dept. of Cmty Affairs v.
Burdine, 450 U.S. 248, 255 (1981).
“A plaintiff is not allowed to recast an employer’s proffered non-
discriminatory reasons or substitute his business judgment for that of the
employer.” Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000).
“Provided that the proffered reason is one that might motivate a reasonable
employer, an employee must meet that reason head on and rebut it, and the
employee cannot succeed by simply quarreling with the wisdom of that reason.”
Id. A plaintiff’s self-serving affidavit that he was a qualified and talented
employee alone are not enough to rebut an employer’s legitimate, non-
discriminatory reason for firing an employee. Wilson, 376 F.3d at 1090. The
plaintiff’s version of events is, however, still relevant. See Hinson v. Clinch
County Ga. Bd. of Educ., 231 F.3d 821, 830-31 (11th Cir. 2000) (holding that the
9
plaintiff successfully challenged the believability of the defendants’ stated reasons
for transferring her by explaining in detail that the provided reasons were
inconsistent and obviously irrational); see also Chapman, 229 F.3d at 1029-31
(faulting the plaintiff for not responding to the specific criticisms, but instead
claiming that he performed well in other areas of his job). If, however, the plaintiff
specifically counters the employer’s description of events with his own version
contending that he did not perform poorly and that the employer mischaracterizes
his performance, that creates a question of fact for the jury that should not be
decided by the court on summary judgment. Hinson, 231 F.3d at 832.
Caribou proffered three legitimate, non-discriminatory reasons for firing
Mihoubi: (1) his general poor performance since he was hired, (2) his failure to
create a proper business plan, and (3) his total failure to produce background
financial information for the Fong Tat deal. “In order to avoid summary judgment,
a plaintiff must produce sufficient evidence for a reasonable fact-finder to conclude
that each of the employers proffered nondiscriminatory reasons is pretextual.”
Chapman, 229 F.3d at 1037; see also Combs, 106 F.3d at 1543 (granting summary
judgment for the employer where the employee rebutted only two of the three non-
discriminatory reasons given by the employer).
Mihoubi successfully created a question of fact concerning Caribou’s claim
10
that it had continual problems with Mihoubi since he started. Mihoubi supported
his testimony with evidence of his substantial bonus, his achievement in procuring
franchises throughout the middle east, and the “superstar” evaluation he received.
Unlike the vague assertions of good qualifications in Chapman, this evidence does
not merely challenge the wisdom of the decision to fire Mihoubi. Rather, it calls
into question the veracity of Caribou’s statements that it believed him to be a poor
employee. Chapman, 229 F.3d at 1030 (noting that the issue is whether the
employer gave an “honest explanation of its behavior”). A reasonable fact-finder
could view these facts as evidence that Caribou did not itself believe that Mihoubi
was performing poorly prior March 2005. Although Caribou disputes the
importance and relevance of Mihoubi’s evidence, those arguments go to weight
and credibility and should be presented to the fact-finder. Combs v. Plantation
Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997).
Even assuming that Mihoubi performed his job well through the Al-Sayer
deal, however, Caribou cited significant problems with Mihoubi’s performance
that arose after the Al-Sayer deal was completed, Mihoubi’s bonus was paid, and
he received his 1B rating.
Mihoubi only partially succeeded in challenging Caribou’s complaints
regarding his business plan. Caribou alleged that Mihoubi did not produce a
11
sufficiently detailed business plan and that his plan presentation on June 7, 2005
was inadequate. Mihoubi created a question of fact about the adequacy of his June
7, 2005 presentation. Mihoubi testified that he was prepared to and attempted to
give his presentation, but that O’Neil prevented him from doing so. This
testimony, together with the evidence of discriminatory statements made by
O’Neil, could lead a reasonable fact-finder to conclude that O’Neil was likely
motivated by discriminatory animus. See Jones v. Bessemer Carraway Med.
Ctr.,151 F.3d 1321, 1323 n.11 (11th Cir. 1998) (“Language not amounting to direct
evidence, but showing some racial animus, may be significant evidence of
pretext”).
Mihoubi, however, failed to rebut Caribou’s assertions that his business plan
itself was deficient. At oral argument, Mihoubi contended that he produced a
business plan, but conceded that O’Neil deemed it inadequate; Mihoubi maintained
that O’Neil did not have experience with business plans and, therefore, that her
evaluation of the adequacy of the business plan is not credible. These arguments
simply dispute his employer’s business judgment. To establish pretext, Mihoubi
needed to present evidence that he produced a business plan that met Caribou’s
purposes but that Caribou rejected the business plan for discriminatory reasons.
Mihoubi has failed to do that on this record. Additionally, Mihoubi’s claims that
12
he was never asked to produce a plan until the spring of 2005 is irrelevant. The
problem was that, when asked, Mihoubi did not deliver what his employer
requested him to deliver. This is a legitimate, non-discriminatory reason to
terminate an employee.
Additionally, Mihoubi failed to rebut Caribou’s proffered legitimate reason
for terminating him based on his failure to complete the requested background
financial research on the Fong Tat deal. Mihoubi argues that this research was not
necessary because the deal was already established, but he offered no evidence that
he actually performed this task. A terminated employee does not prove that the
employer’s proffered explanation is a pretext by claiming that the work he was
given was unnecessary. The employee must prove he performed the work he was
given and performed it to the satisfaction of his employer but was fired despite this
good performance. Mihoubi failed to create doubt as to Caribou’s truthfulness
regarding his poor performance on the Fong Tat deal, and in fact, Mihoubi
confirmed Caribou’s allegation that he failed to do the research he was asked to do.
Because Mihoubi failed to rebut all of Caribou’s proffered non-
discriminatory reasons for his termination, we must affirm summary judgment for
the defendants on Mihoubi’s discrimination claim.
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II. Retaliation
Mihoubi also appealed the district court’s denial of his claim that he was
terminated on July 19, 2005 in retaliation for the internal complaint he sent on May
11, 2005 and the EEOC charge that was filed on June 21, 2005.6
Caribou responded that O’Neil made the decision to fire Mihoubi in the first
week of July before she received the EEOC charge (which Caribou asserts was
July 11 at the earliest). Caribou provided O’Neil’s testimony as evidence that she
decided to fire him based on his poor performance rather than as retaliation for his
complaints of discrimination. O’Neil testified that she waited until July 19 because
Mihoubi would be in Minneapolis on that date and she could speak to him
personally.
To establish a claim for retaliation, Mihoubi must show that: (1) he engaged
in statutorily protected activity 7; (2) he suffered an adverse employment action; and
(3) there was some causal relationship between the two events. Pennington v. City
of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). “Causal link” has been
construed broadly and has been established if the plaintiff merely proves that the
6
We note the Supreme Court has affirmed that § 1981 encompasses retaliation claims.
CBOCS West, Inc. v. Humphries, — U.S. —, 2008 WL 2167860, at *12 (May 27, 2008).
7
Appellees briefly argue in a footnote that the May email was not “protected activity”
because it was incendiary and referred only to national origin and religion (which § 1981 does
not cover). However, Appellees abandoned this argument by making it only in passing.
Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).
14
two actions are “not completely unrelated.” Id.
Causation may be inferred by close temporal proximity between the
protected activity and the adverse employment action. Thomas v. Cooper Light.,
Inc., 506 F.3d 1361, 1364 (11th Cir. 2007); Brungart v. BellSouth Tellcomm., Inc.,
231 F.3d 791, 799 (11th Cir. 2000) (“The general rule is that close temporal
proximity between the employee’s protected conduct and the adverse employment
action is sufficient circumstantial evidence to create a genuine issue of material
fact of a causal connection.”). If temporal proximity is the only evidence,
however, the timing must be “very close.” Id. Even assuming the timing as set out
by Caribou, O’Neil received the EEOC charge sometime after July 11 and fired
Mihoubi on July 19. This less than eight day period is “very close.” See Hudson
v. Int’l Computer Neg., Inc., 499 F.3d 1252, 1265 (11th Cir. 2007) (finding that
eight days from notification of a need for long-term disability to termination was
“very close”).
There is no causal connection, however, if the person who made the decision
to terminate the employee learned of the protected activity after he fired the
employee. See Clark County School District v. Breeden, 532 U.S. 268, 273
(2001); see also Brungart, 231 F.3d at 799. In Brungart, this court held that the
decision-maker’s unrefuted testimony that he knew nothing of the protected
15
activity when he fired the employee was enough to destroy the inference of
causation from temporal proximity alone and thus rebut the prima facie case made
out by the employee. Id. at 800. Brungart, however, can be distinguished from the
present case. In that case, there was unrefuted testimony that the decision-maker
had not heard of the protected activity when he fired the employee. Id. Here,
O’Neil had heard of the protected activity when she fired Mihoubi—she had
received the EEOC charge notification less than eight days before she fired
him—but she tries to get around that by asserting that she had already made the
decision to fire him a week before receiving the notification. O’Neil has produced
no evidence to support her testimony that she made the decision to fire Mihoubi
prior to learning of the EEOC charge. We, therefore, find that Mihoubi has
succeeded in establishing a prima facie case of retaliation.
Once the plaintiff establishes a prima facie case of retaliation, the burden
shifts to the employer to provide a non-retaliatory, legitimate reason for firing the
employee. Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1277 (11th Cir.
2008). Caribou provides the same evidence discussed above of Mihoubi’s poor
work performance on the business plan and the Fong Tat deal in the months
leading up to his termination on July 19, 2005. As we discussed, Mihoubi has
failed to rebut Caribou’s overwhelming evidence of his poor performance on those
16
projects. We, therefore, affirm the district court’s summary judgment ruling for
Caribou on Mihoubi’s retaliation claim.
iii. Claims Against Michael Coles
Because we find that Mihoubi’s claims fail as a matter of law, we need not
address whether Mihoubi abandoned his claims against Michael Coles.
CONCLUSION
For the foregoing reasons, the district court’s summary judgment ruling is
AFFIRMED.
17