Jackie Robinson v. Colquitt EMC, et al

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11826
Non-Argument Calendar
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D.C. Docket No. 7:13-cv-00092-HL
JACKIE ROBINSON,
Plaintiff-Appellant,
versus
COLQUITT EMC,
DIXIE LIGHTFOOT,
in her individual and official capacity,
DOUG LOFTIS,
in his individual and official capacity,
Defendants-Appellees,
JUSTIN BROWN, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(June 2, 2016)
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Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Jackie Robinson, an African-American, appeals from the
district court’s grant of summary judgment in favor of Defendant-Appellee
Colquitt Electric Membership Corporation (“Colquitt”) in his employment-
discrimination suit, brought pursuant to Title VII, 42 U.S.C. § 2000e-2(a), and 42
U.S.C. § 1981.1 Colquitt is a non-profit utility company operating in Southern
Georgia. Robinson began working for Colquitt in 2002 and had an unblemished
record with the company until 2009. Following a series of disciplinary incidents in
2011 and 2012, Colquitt management held a “last-chance” meeting with Robinson
in May 2012. At that time, Colquitt advised Robinson that the next violation of
any kind would result in his termination. Robinson was fired after he failed to
timely respond to a service call in June 2012.
Robinson claims that he was actually fired because of his race and that
Colquitt’s justification for firing him is not worthy of belief. He contends that the
service-call justification does not stand up to review and that he was disciplined
1 Robinson’s complaint initially listed several individuals as defendants, but they were
later voluntarily dropped from the lawsuit. The complaint also included additional claims based
on disparate impact, a hostile work environment, retaliation, wrongful termination, and
intentional infliction of emotional distress. Robinson abandoned his disparate-impact and
retaliation claims prior to summary judgment. The district court granted summary judgment to
Colquitt on Robinson’s remaining claims, and Robinson does not challenge the disposition of
those claims on appeal. Accordingly, the only issue in this appeal is whether Robinson was
terminated because of his race.
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more harshly than white employees for similar violations. The district court
granted summary judgment to Colquitt, concluding that Robinson failed to present
an initial case of discrimination and that he did not show that Colquitt’s proffered
explanation for his termination was actually a pretext for discrimination. After
careful review, we affirm.
We review de novo a district court’s order granting summary judgment,
construing the evidence and drawing all reasonable inferences in favor of the non-
moving party. Brooks v. Cnty. Comm’n, 446 F.3d 1160, 1161-62 (11th Cir. 2006).
Summary judgment is appropriate when no genuine issue exists as to any material
fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(a).
Both Title VII and § 1981 make it unlawful for an employer to discharge
any individual because of his race. 42 U.S.C. § 2000e-2(a)(1); 42 U.S.C. § 1981(a)
(“All persons . . . shall have the same right . . . to make and enforce contracts . . . as
is enjoyed by white citizens.”). In the employment context, the elements of a race-
discrimination claim under § 1981 are the same as a Title VII disparate-treatment
claim. Rice-Lamar v. City of Fort Lauderdale, Fla., 232 F.3d 836, 843 n.11 (11th
Cir. 2000). Therefore, we analyze both claims under the Title VII framework.
Where the plaintiff relies on only circumstantial evidence of discrimination,
as in this case, we may apply the burden-shifting framework articulated in
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McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973).
Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003). Under the
McDonnell Douglas framework, the plaintiff shoulders the initial burden of
establishing a prima facie case of discrimination, which creates a rebuttable
presumption that the employer acted illegally. Vessels v. Atlanta Indep. Sch. Sys.,
408 F.3d 763, 767 (11th Cir. 2005). If the plaintiff establishes such a prima facie
case, the burden shifts to the employer to articulate a legitimate, non-
discriminatory reason for the employment action. Id. Once the employer proffers
a non-discriminatory reason for the employment action, “the inference of
discrimination drops out of the case entirely,” and the plaintiff then has the
opportunity to show that the employer’s proffered reason is a pretext for
discrimination. Id. at 768.
The plaintiff’s burden at the pretext stage “merges with the plaintiff’s
ultimate burden of persuading the court that the employer intentionally
discriminated against [him].” Alvarez v. Royal Atl. Developers, Inc., 610 F.3d
1253, 1265 (11th Cir. 2010). “A plaintiff may prevail on an employment
discrimination claim by either proving that intentional discrimination motivated the
employer or producing sufficient evidence to allow a rational trier of fact to
disbelieve the legitimate reason proffered by the employer, which permits, but does
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not compel, the trier of fact to find illegal discrimination.” Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir. 2004).
We do not sit as a super-personnel department judging the wisdom or
accuracy of the employer’s decision. See Elrod v. Sears, Roebuck & Co., 939 F.2d
1466, 1470 (11th Cir. 1991). Rather, “our inquiry is limited to whether the
employer gave an honest explanation of its behavior.” Id. (internal quotation
marks omitted); see Alvarez, 610 F.3d at 1266 (“The inquiry into pretext centers on
the employer’s beliefs, not the employee’s beliefs and . . . not on reality as it exists
outside of the decision maker’s head.”). Therefore, in attempting to show pretext,
a plaintiff must meet the employer’s reason head on and rebut it; he cannot simply
recast the employer’s reason, substitute his business judgment for that of the
employer, or otherwise quarrel with the wisdom of the decision. Alvarez, 610 F.3d
at 1265.
Here, we agree with Robinson—as does Colquitt—that he established a
prima facie case of discrimination. A plaintiff may create an inference of
discrimination regarding his termination with proof that (1) he was a member of a
protected class; (2) he held a position for which he was qualified; (3) he was fired
from that position; and (4) he was “replaced by a person outside the protected class
or suffered from disparate treatment because of membership in the protected
class.” Kelliher v. Veneman, 313 F.3d 1270, 1275 (11th Cir. 2002) (emphasis
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added); see also Coutu v. Martin Cty. Bd. of Cty. Comm’rs, 47 F.3d 1068, 1073
(11th Cir. 1995) (stating the fourth element as “replace[ment] by a person outside
the protected class”). The district court found that Robinson’s prima facie case
failed because he did not point to a similarly situated comparator who was treated
more favorably. But he did not need to because it is undisputed that Robinson was
replaced by someone outside the protected class. See Coutu, 47 F.3d at 1073. The
district court’s error is harmless, though, because the court proceeded to the later
stages of the McDonnell Douglas analysis. We turn to those stages now.
Robinson asserts that Colquitt has failed to proffer a legitimate, non-
discriminatory reason for his termination. We disagree. Colquitt claimed that it
fired Robinson because he repeatedly violated the company’s safety policies and
general procedures, including one violation after a “last-chance” disciplinary
meeting with management in which Robinson was warned that any further
violation would result in his immediate termination. This plainly is a non-
discriminatory reason that “might motivate a reasonable employer” to terminate an
employee. Chapman v. AI Transp., 229 F.3d 1012, 1030-31 (11th Cir. 2000) (en
banc); see Smith v. Papp Clinic, P.A., 808 F.2d 1449, 1452-53 (11th Cir. 1987) (an
employer does not unlawfully discriminate against an employee “if the employer
fired an employee because it honestly believed that the employee had violated a
company policy, even if it was mistaken in such belief”).
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In support of its proffered explanation, Colquitt provided ample evidence of
Robinson’s disciplinary history. This disciplinary history reflects the following: a
written warning for substandard work and carelessness (October 2009); a four-day
suspension for substandard work (March 2011); a five-day suspension for
dishonesty involving an accident between company vehicles (May 2011); a written
warning for tardiness (September 2011); a four-day suspension for substandard
work and carelessness (October 2011); a three-day suspension for failing to timely
respond to a service call (May 2012); and, finally, termination for again failing to
timely respond to a service call (June 2012). The record also shows two other
incidents for which Robinson was not disciplined.
After the incident in October 2011, Colquitt management met with Robinson
and told him that another incident of substandard work, conduct, safety,
disobedience, or carelessness would result in immediate termination. Colquitt
explained to Robinson that he needed to be “an exemplary Lineman for the next
several years.” Following the May 2012 service-call discipline, Colquitt
management again met with Robinson for a “last-chance” meeting. The
memorandum from this meeting reflects that Robinson was told that Colquitt had
run out of disciplinary and training options and that the next incident of “any kind”
would result in immediate termination.
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The facts of the final incident triggering Robinson’s termination are as
follows. On June 30, 2012, Robinson was “on call,” meaning he was not actively
working but, if called by a Colquitt dispatcher, he was required to respond to
customer complaints about power outages. Around 4:02 p.m., a Colquitt
dispatcher called Robinson and notified him of a power outage. Robinson stated
that he was ill but that he would still try to make the call. He had become
overheated cutting the grass in his yard and had been throwing up when the
dispatcher called. Robinson fell asleep after receiving the call, though, and another
dispatcher called Robinson around 4:45 p.m. Robinson claims that he then
proceeded to the service call and restored the customer’s lights at 5:48 p.m.
Robinson contends that Colquitt’s reliance on his failure to timely respond to
a service call is pretextual for several reasons. First, he argues that Colquitt failed
to follow its own protocol regarding service calls. Normally, when a dispatcher is
unable to reach the first employee on call within ten to fifteen minutes, Robinson
explained, the dispatcher contacts the next person on call.
But that fact does not call into question Colquitt’s actions in this case.
Robinson responded to the first dispatcher’s call and said he could make it despite
his illness, so there would have been no reason for the dispatcher to move on to the
next person. And while Robinson contends that this shows “Colquitt’s willingness
to inconvenience a customer,” it is unclear how that follows. No evidence suggests
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that Colquitt knew Robinson could not respond in a timely manner, even if he was
feeling ill, nor was it unreasonable for Colquitt to expect that Robinson would
respond to the call in a timely fashion.
Second, Robinson points to the purported “subjective application” of an
unwritten policy with respect to the expected response time of on-call employees
when they received a service call from a dispatcher. He cites a discrepancy in
testimony over whether the expected response time was 15 or 30 minutes.
However, even under his version of events, Robinson’s response time was nearly
two hours from the service call. Accordingly, even if the expected response time
was 30 minutes, he was still subject to discipline for failing to timely respond.
Finally, Robinson argues that no other employee at Colquitt had been
terminated for failing to timely respond to a service call. However, the June 30
incident followed a string of disciplinary issues culminating in a warning that a
future violation of “any kind” would result in immediate termination. Robinson
does not claim that another employee who had received a similar warning was not
fired after failing to timely respond to a service call. Consequently, Robinson has
not shown that Colquitt’s decision to terminate his employment based on his
failure to timely respond to the service call was pretextual.
Robinson’s other main contention is that his disciplinary history has been
skewed by race discrimination. He does not challenge the fact of his disciplinary
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history (or, to a large degree, the underlying incidents), but he does challenge the
fairness of it. Specifically, he contends that he was disciplined more harshly than
white employees for similar misconduct. Robinson primarily relies on two
employees as comparators: (1) John Fisher and (2) Ray Parrish.
When a plaintiff seeks to show that he is similarly situated to an employee
who was treated more favorably, he must show that he and the comparator are
“similarly situated in all relevant respects.” Holifield v. Reno, 115 F.3d 1555, 1562
(11th Cir. 1997). In cases involving discriminatory discipline, we consider
whether the employees are involved in or accused of the same or similar conduct
and are disciplined in different ways. Maynard, 342 F.3d at 1289. Comparator
evidence may be used to show pretext. Rioux v. City of Atlanta, Ga., 520 F.3d
1269, 1276-77 (11th Cir. 2008).
Here, Robinson has not shown that Colquitt treated Fisher and Parrish
differently from him in a way that is suggestive of pretext. With regard to Fisher,
the evidence does not support an inference that Colquitt strayed from its
progressive disciplinary policy when addressing Fisher’s conduct. Fisher was
disciplined for substandard work in August 2011 and suspended for three days. At
that time, he was warned that the “next incident” could result in more severe
sanctions, including termination. Robinson contends that Fisher, in contrast to
Robinson, was not terminated for his next incidents: an attendance issue and a
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vehicle accident. However, undisputed testimony established that the term “next
incident” refers to the next incident in the same disciplinary category.2 Thus, if
Fisher had had another substandard-work incident, he would have faced the
enhanced penalties. But he did not; the next two incidents were in other
categories. Robinson’s own disciplinary history reflects this same policy was
applied to him. For example, when Robinson was disciplined in March 2011 for
substandard work, he was warned that the “next incident” would result in
suspension, reassignment and demotion, or termination. Robinson then had an
incident involving tardiness in September 2011, but he was not suspended,
demoted, or terminated because the incident was in a different disciplinary
category. Fisher’s disciplinary history is not otherwise comparable to Robinson’s
in severity or quantity. In short, Robinson has not shown pretext with regard to
NPS’s discipline of Fisher.
Robinson also has not shown that Parrish is a proper comparator for
purposes of establishing pretext. For the only incident that provides a direct
comparison, the March 2011 “hot phase” incident, Parrish received the same
discipline as Robinson (four days’ suspension). Parrish, as crew foreman, was
suspended for failing to report a serious incident to a supervisor, while Robinson
was suspended for substandard work. Following this incident, Colquitt
2 The separate disciplinary categories included substandard work, tardiness, conduct,
safety, absence, disobedience, and carelessness.
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management informed Parrish that there had been “a couple of incidents” with
members of his crew over the past 18 months and that Colquitt would institute a
form of daily monitoring of Parrish’s leadership. Robinson claims that this shows
that Parrish had a “long history of performance issues” but was hardly disciplined.
However, the record fails to show whether Parrish’s performance issues, to the
extent there were any, were sufficiently similar to warrant comparison to
Robinson’s. See Maynard, 342 F.3d at 1289; Holifield, 115 F.3d at 1562. Broadly
claiming that each had work-performance issues is inadequate to permit a
comparison for purposes of establishing pretext.
Next, Robinson claims that he was punished more harshly than a white
employee for the same conduct arising out of an accident between two company
trucks, driven by Robinson and the other employee, respectively, in May 2011.
Both Robinson and the white employee covered up and lied about the accident, in
addition to violating other rules. The white employee was suspended for three
days, while Robinson was suspended for five days and demoted. Colquitt asserts
that Robinson was punished more severely because he caused the accident,
Colquitt determined that he initiated the cover-up of the accident, and he had a
recent disciplinary incident in March 2011. Robinson has put forth no evidence or
argument to call into question the honesty of Colquitt’s explanation for the
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difference in punishment. Accordingly, he has not shown pretext based on this
incident.
Finally, Robinson broadly refers to various other instances of purportedly
unequal punishment for similar incidents. However, the record lacks evidence to
permit proper comparison regarding those instances, and Robinson’s conclusory
allegations of discrimination are, without more, insufficient to carry his burden.
See Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996).
Moreover, these incidents, even if suggestive of pretext, are only indirectly related
to Colquitt’s explanation for Robinson’s termination and are not sufficient
evidence for a jury to return a verdict in favor of Robinson. See Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct. 2505, 2511 (1986) (summary
judgment may be granted “[i]f the evidence is merely colorable or is not
significantly probative” (citations omitted)).
While the McDonnell Douglas framework is not the exclusive means by
which a party can create a genuine issue for trial, we conclude, largely for the same
reasons we have rejected his pretext arguments, that Robinson has not presented a
“convincing mosaic of circumstantial evidence that would allow a jury to infer
intentional discrimination by the decisionmaker,” Smith v. Lockheed-Martin
Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (quoting Silverman v. Bd. of Educ. of
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City of Chicago, 637 F.3d 729, 734 (7th Cir. 2011) (footnote omitted)), even if the
issue had been properly raised to the district court.
Accordingly, we affirm.
AFFIRMED.
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