Edward E. Jerome v. Barcelo Crestline, Inc.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-11123
Non-Argument Calendar
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D.C. Docket No. 1:07-cv-00447-WSD
EDWARD E. JEROME,
Plaintiff-Appellant,
versus
BARCELO CRESTLINE, INC.,
Contact Agent; Dave Durbin,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 8, 2013)
Before DUBINA, Chief Judge, WILSON, and ANDERSON, Circuit Judges.
PER CURIAM:
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Appellant Edward Jerome appeals pro se from the district court’s grant of
summary judgment in favor of Barcelo Crestline, Inc. (“Crestline”), in his
employment action alleging discrimination based on race, pursuant to Title VII of
the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2(a), and retaliation
under the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2615(a)(2). On
appeal, Jerome argues that the district court erred in granting Crestline summary
judgment on his race discrimination and FMLA retaliation claims; that the district
court abused its discretion in denying his motions to alter or amend judgment; and
that the district court abused its discretion in denying his motion for “permissive
intervention.”
I.
Jerome first argues that the district court erred in granting Crestline
summary judgment on his race discrimination and FMLA retaliation claims
because he filed an objection to Crestline’s counsel’s “illegal” representation that
was never ruled on, and Crestline never properly responded to his requests for
admissions, such that all of Crestline’s subsequent filings were rendered moot. He
also asserts that Crestline’s explanations for its adverse employment actions
against him were unsupported by record evidence.
We review de novo a district court’s grant of summary judgment, drawing
all inferences and viewing all evidence in the light most favorable to the non-
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moving party. Martin v. Brevard County Pub. Schs., 543 F.3d 1261, 1265 (11th
Cir. 2008).
Summary judgment shall be granted if the movant shows that there is “no
genuine issue as to any material fact”, such that the movant is entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a). Summary judgment should be entered
against a party who fails to make a showing sufficient to establish the existence of
an essential element of its case, and on which it bears the burden of proof at trial.
Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996). “Genuine
disputes are those in which the evidence is such that a reasonable jury could return
a verdict for the non-movant.” Id. (internal quotation marks omitted). Factual
issues must have a real basis in the record to be considered genuine. Mere
conclusions and unsupported factual allegations are insufficient to defeat a
summary judgment motion. Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.
2005).
In relevant part, Title VII prohibits an employer from discriminating against
an individual on the basis of that individual’s race. 42 U.S.C. § 2000e-2(a)(1). To
establish a prima facie case of race discrimination under Title VII, an employee
must prove (1) that he is a member of a racial minority; (2) that he was subjected to
an adverse employment action; (3) that his employer treated similarly situated
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employees outside his classification more favorably; and (4) that he was qualified
for the job. Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997).
The FMLA affords an eligible employee twelve weeks of unpaid leave in
any one-year period because of a serious health condition that renders the
employee incapable of performing the functions of his position. 29 U.S.C.
§ 2612(a)(1)(D). To prove a claim of FMLA retaliation, “an employee must show
that his employer intentionally discriminated against him for exercising an FMLA
right.” Martin, 543 F.3d at 1267. Absent direct evidence of retaliatory intent, an
employee must establish his prima facie case by showing that “(1) he engaged in
statutorily protected activity, (2) he suffered an adverse employment decision, and
(3) the decision was causally related to the protected activity.” Id. at 1268.
Once an employee has established his prima facie case for either an FMLA
retaliation claim or race discrimination claim, the employer must articulate a
legitimate, nondiscriminatory reason, for its adverse employment action. Martin,
543 F.3d at 1268; Holifield, 115 F.3d at 1564. If the employer does so, then the
employee must demonstrate that the employer’s proffered reason was pretextual.
Martin, 543 F.3d at 1268; Holifield, 115 F.3d at 1565.
Jerome has not shown that the district court erred in granting Crestline
summary judgment. Jerome’s assertions that the district court never ruled on his
objection to Crestline’s counsel’s “illegal” representation and that Crestline failed
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to properly respond to his requests for admissions simply find no support in the
record. Jerome’s remaining arguments for summary judgment error are also
without merit. In regard to his race discrimination claim, Jerome does not address
either his prima facie case or the district court’s conclusion that he did not show
either that Crestline treated similarly situated employees outside his classification
more favorably or that he was qualified for his former position. Although Jerome
seems to argue that Crestline’s reason for not reinstating him was pretextual,
insofar as Jerome did not establish his prima facie case, the burden did not shift to
Crestline to advance a legitimate, nondiscriminatory reason for its adverse
employment action. Cf. Holifield, 115 F.3d at 1564-65. Furthermore, we conclude
from the record that the district court did not err in granting Crestline summary
judgment on Jerome’s FMLA retaliation claim because Jerome failed to present
any evidence showing a causal relationship between his termination and the
exercise of his FMLA rights. See 29 U.S.C. § 2615; Martin, 543 F.3d at 1268.
II.
Jerome next argues that the district court abused its discretion in denying his
second motion to alter or amend judgment pursuant to Fed.R.Civ.P. 59(e) because
he presented evidence that, although Crestline refused to allow him to resume work
part-time in his former management position, Crestline offered part-time positions.
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Additionally, Jerome makes reference to his first Rule 59(e) motion, but he does
not offer any substantive argument concerning the motion.
“We review the denial of a motion to alter or amend a judgment under Rule
59(e) for abuse of discretion.” Shuford v. Fid. Nat’l Prop. & Cas. Ins. Co., 508
F.3d 1337, 1341 (11th Cir. 2007). Although we read briefs filed by pro se litigants
liberally, “issues not briefed on appeal by a pro se litigant are deemed abandoned.”
Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
A motion to alter or amend a judgment under Rule 59(e) must be filed no
later than 28 days after the entry of the judgment. Fed.R.Civ.P. 59(e). The only
grounds for granting a motion to alter or amend judgment are new evidence or
manifest errors of law or fact. Arthur v. King, 500 F.3d 1335, 1343 (11th Cir.
2007).
We conclude from the record that Jerome has abandoned any issue on appeal
concerning his first Rule 59 motion by failing to offer any argument as to that
motion. See Timson, 518 F.3d at 874. Additionally, the district court properly
denied Jerome’s second Rule 59 motion as untimely because it was filed more than
two years after the final judgment in his case. See Fed.R.Civ.P. 59(e).
III.
Jerome’s final argument on appeal is that the district court abused its
discretion in denying his motion for “permissive intervention,” which we construe
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as a motion for the district court judge to recuse pursuant to 28 U.S.C. § 455(a).
Jerome asserts that district court judge’s decisions in his case indicated that the
judge was biased against Jerome.
We review for an abuse of discretion a district court judge’s refusal to recuse
pursuant to § 455(a). Diversified Numismatics, Inc. v. City of Orlando, 949 F.2d
382, 384-85 (11th Cir. 1991). The relevant inquiry under § 455(a) is “whether an
objective, disinterested, lay observer fully informed of the facts underlying the
grounds on which recusal was sought would entertain a significant doubt about the
judge’s impartiality.” Id. at 385 (internal quotation marks omitted). Generally,
absent a showing of pervasive bias and prejudice, a judge’s rulings in the same or a
related case may not serve as the basis for a recusal motion. McWhorter v. City of
Birmingham, 906 F.2d 674, 678 (11th Cir. 1990).
We conclude that the district court did not abuse its discretion in denying
Jerome’s motion because Jerome has not shown that a lay observer would have any
doubt regarding the judge’s impartiality. See Diversified Numismatics, Inc., 949
F.2d at 385. In particular, Jerome has simply cited to the district court’s
unfavorable rulings in his case, which is insufficient to serve as a basis for a
recusal motion. See McWhorter, 906 F.2d at 678.
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For the aforementioned reasons, we affirm the district court’s grant of
summary judgment and its order denying Jerome’s motion to alter or amend
judgment and his motion for permissive intervention.
AFFIRMED.
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