William Choate v. Atlanta Radio, LLC, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-10282
Non-Argument Calendar
____________________
WILLIAM CHOATE,
Plaintiff-Counter Defendant-Appellant,
versus
ATLANTA RADIO, LLC,
a subsidiary of Cumulus Media, Inc.,
CUMULUS MEDIA, INC.,
Defendants-Counter Claimants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
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2 Opinion of the Court 23-10282
D.C. Docket No. 1:20-cv-04234-JPB
____________________
Before WILSON, L UCK , and B LACK , Circuit Judges.
PER CURIAM:
William Choate appeals following the district court’s grant
of partial summary judgment in favor of Cumulus Media, Inc. (Cu-
mulus) and its subsidiary Atlanta Radio, LLC (collectively, the Ap-
pellees) in Choate’s action alleging gender and sexual orientation
discrimination in his termination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e-2(m). Choate
asserts the district court abused its discretion by excluding from ev-
idence the declaration of his former co-worker, Brian Thomas. He
also contends the district court erred in granting summary judg-
ment to Appellees because a reasonable jury could conclude Cu-
mulus terminated him because of his sexual orientation. After re-
view, we affirm.
I. JURISDICTION
We issued a jurisdictional question asking the parties to ad-
dress whether the district court’s certification of a partial final judg-
ment on Choate’s Title VII claims under Rule 54(b) was proper.
The parties responded, and we carried the jurisdictional issue with
the case. Generally, an order that adjudicates fewer than all claims
against all parties is not final and appealable absent certification by
the district court under Rule 54(b). Supreme Fuels Trading FZE v.
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23-10282 Opinion of the Court 3
Sargeant, 689 F.3d 1244, 1246 (11th Cir. 2012); see 28 U.S.C. § 1291;
Fed. R. Civ. P. 54(b). Rule 54(b) provides:
When an action presents more than one claim for re-
lief . . . or when multiple parties are involved, the
court may direct entry of a final judgment as to one
or more, but fewer than all, claims or parties only if
the court expressly determines that there is no just
reason for delay.
Fed. R. Civ. P. 54(b). We have noted “appeals before the end of
district court proceedings are the exception, not the rule.” Peden v.
Stephens, 50 F.4th 972, 977 (11th Cir. 2022) (alteration omitted).
To certify a case under Rule 54(b), a district court must fol-
low a two-step analysis. Lloyd Noland Found., Inc. v. Tenet Health
Care Corp., 483 F.3d 773, 777 (11th Cir. 2007). First, the district
court must determine its final judgment is both “final” and a “judg-
ment.” Id. Second, the district court must determine there is “no
just reason for delay” in permitting the parties to appeal its decision
immediately. Id. A district court’s Rule 54(b) certification is not
conclusive on this Court, and if the district court incorrectly
granted Rule 54(b) certification, we will dismiss the appeal for lack
of jurisdiction. See Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d
162, 166, 168 (11th Cir. 1997).
A. Final Judgment
To constitute a “final judgment,” the court’s decision must
be “final in the sense that it is an ultimate disposition of an individ-
ual claim entered in the course of a multiple claims action, and a
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4 Opinion of the Court 23-10282
judgment in the sense that it is a decision upon a cognizable claim
for relief.” Lloyd Noland Found., Inc., 483 F.3d at 777 (quotation
marks omitted). Moreover, a final judgment must either entirely
dispose of a separable claim or completely dismiss a party from the
case. Id. at 779. Claims are separable when there is more than one
possible recovery or if “different sorts of relief” are sought. Brandt
v. Bassett (In re Se. Banking Corp.), 69 F.3d 1539, 1547 (11th Cir.
1995). “When either of these circumstances exists, claims are sep-
arately enforceable and subject to Rule 54(b) certification even if
they arise out of a single transaction or occurrence.” Id. (quotation
marks omitted). “Thus, the touchstone for determining whether
an entire claim has been adjudicated for purposes of Rule 54(b) is
whether that claim is separately enforceable without mutually ex-
cluding or substantially overlapping with remedies being sought by
the remaining claims pending in the district court.” Lloyd Noland,
483 F.3d at 780 (quotation marks and alteration omitted).
The partial summary judgment order is final for purposes of
Rule 54(b). Although the district court’s partial judgment did not
completely dismiss any party, it did completely resolve Choate’s
Title VII claims. And while there is potentially some overlap be-
tween his Title VII claims and his breach of contract claim, Choate
can recover different relief simultaneously under each of the
claims. Thus, the contract and statutory claims are separable, and
the partial summary judgment order is final for purposes of Rule
54(b). See Lloyd Noland, 483 F.3d at 780; In re Se. Banking Corp., 69
F.3d at 1547.
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23-10282 Opinion of the Court 5
B. No Just Reason for Delay
Once having found finality, the district court must deter-
mine whether there is “any just reason to delay the appeal of indi-
vidual final judgments.” Ebrahimi, 114 F.3d at 165. We review a
district court’s determination there is no just reason for delay for
abuse of discretion. See Lloyd Noland, 483 F.3d at 778 n.5. When a
district court concludes Rule 54(b) certification is proper, and it
supports its conclusion by clearly articulating its reasoning and
providing supporting factual and legal determinations, or if the rea-
sons are otherwise “obvious,” we “will not disturb the district
court’s assessment unless it was clearly unreasonable.” Ebrahimi,
114 F.3d at 166. “This deferential standard reflects a recognition
that the task of weighing and balancing the contending factors is
peculiarly one for the trial judge, who can explore all the facets of
a case.” Id. (quotation marks omitted).
In its order granting the motion for Rule 54(b) certification,
the district court explained there was no just reason for delay be-
cause “this case would be most efficiently resolved by avoiding the
possibility of two, separate jury trials on the Title VII claims and
the still-pending breach of contract claim and counterclaims, par-
ticularly because these claims arise out of the same underlying ter-
mination incident.” The court also noted Choate had indicated the
resolution of the Title VII claims on appeal might increase the pos-
sibility of a settlement.
The district court’s assessment there was no just reason for
delay was not clearly unreasonable. If there is no immediate
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review and the parties proceed to trial, this could require two sep-
arate trials involving many of the same witnesses. Relatedly, an
immediate appeal would help narrow and minimize any eviden-
tiary disputes during any future trial. Thus, appellate review at this
stage could eliminate the need for any further judicial involvement.
In light of this, the district court’s assessment was not clearly un-
reasonable, and we have jurisdiction over the court’s grant of sum-
mary judgment.
II. DISCUSSION
A. Thomas’s Testimony
Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and the mo-
vant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). In determining whether the movant has met this burden,
courts must view the evidence in the light most favorable to the
non-movant. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253,
1263-64 (11th Cir. 2010). Nevertheless, courts “may not weigh con-
flicting evidence or make credibility determinations of [their]
own.” Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1304 (11th Cir.
2016) (quotation marks omitted). Moreover, unsupported factual
allegations, affidavits based on information and belief instead of
personal knowledge, and mere conclusions cannot withstand a mo-
tion for summary judgment. Ellis v. England, 432 F.3d 1321, 1327
(11th Cir. 2005).
The district court did not abuse its discretion in excluding
Thomas’s testimony based on a lack of first-hand knowledge.
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Furcron, 843 F.3d at 1304 (reviewing the district court’s decisions on
the admissibility of evidence for an abuse of discretion). Thomas’s
testimony does not meet the standard articulated in Rule 56, as he
lacks personal knowledge of Cumulus’s employment practices dur-
ing the relevant time frame, as he was not a Cumulus employee
when the termination occurred. Furthermore, he did not testify as
to how Choate’s termination actually occurred, and his testimony
thus amounts to mere speculation. See Ellis, 432 F.3d at 1327. As
the district court concluded, Thomas’s declaration amounts to a
belief that Sean Shannon was involved in Choate’s termination de-
cision because he was involved in such decisions during Thomas’s
employment. Such a belief is insufficient to defeat summary judg-
ment, as it cannot create a genuine issue of material fact. See id.
Choate’s argument there is no indication Cumulus changed its em-
ployment practices following Thomas’s employment is contra-
dicted by the testimony of several current Cumulus employees.
David Milner and Brian Philips, for example, testified that they,
Todd McCarty, and Richard Denning, made the decision to termi-
nate. Additionally, McCarty testified that Shannon was not in-
volved in the decision-making or investigative process. Thus, the
district court did not abuse its discretion in excluding Thomas’s tes-
timony regarding Shannon’s involvement in termination decisions.
B. Merits of Summary Judgment
Discrimination claims under Title VII can be brought as ei-
ther mixed-motive or single-motive claims, which are different the-
ories and serve as alternative causation standards for proving
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discrimination. Quigg v. Thomas County School Dist., 814 F.3d 1227,
1235 & n.4. (11th Cir. 2016). In mixed-motive cases, at summary
judgment, a plaintiff pursuing a mixed-motive claim “need only
produce evidence sufficient to convince a jury that: (1) the defend-
ant took an adverse employment action against the plaintiff; and
(2) a protected characteristic was a motivating factor for the de-
fendant’s adverse employment action.” Id. at 1232-33 (quotation
marks and alteration omitted); see also 42 U.S.C. § 2000e-2(m) (stat-
ing “an unlawful employment practice is established when the
complaining party demonstrates that . . . sex . . . was a motivating
factor for any employment practice, even though other factors also
motivated the practice”). In other words, the court must deter-
mine whether “the plaintiff has presented sufficient evidence for a
reasonable jury to conclude, by a preponderance of the evidence,
that [his] protected characteristic was a motivating factor for an ad-
verse employment decision.” Quigg, 814 F.3d at 1239 (quotation
marks and alterations omitted). “[T]he plaintiff will always survive
summary judgment if [he] presents circumstantial evidence that
creates a triable issue concerning the employer’s discriminatory in-
tent.” Id. at 1240 (quotation marks omitted). The Court noted the
mixed-motive theory of discrimination was designed to protect the
employee who cannot rebut his employer’s proferred reasons for
an adverse action but offers evidence demonstrating the employer
also relied on a forbidden consideration. Id. at 1237-38.
The district court did not err in granting summary judgment
in favor of the Appellees. See Alvarez, 610 F.3d at 1263 (reviewing
de novo a district court’s grant of summary judgment, using the
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23-10282 Opinion of the Court 9
same legal standards applied by the district court). The parties
agree that Cumulus took an adverse employment action against
Choate. See Quigg, 814 F.3d at 1232-33. Thus, the relevant question
is whether the district court erred in determining a protected char-
acteristic, Choate’s sexuality, was not a motivating factor for the
adverse employment action. See id. First, the court did not err in
concluding the evidence supported a finding that Shannon—the
Market Manager Choate alleged was biased against him because of
Choate’s sexual orientation—was not involved in the termination
decision. Multiple Cumulus employees testified that Milner,
Philips, and McCarty, in consultation with Denning, made the de-
cision to suspend and terminate Choate. The evidence supports
that not even Greg Frey, who conducted most of the investigation,
was involved in the final termination decision. Similarly, Kriston
Fancellas testified she was only informed of the decision after it was
made. Although various individuals forwarded emails to Shannon
early on and kept him updated on the situation, the record does not
support that he was involved in the actual termination decision.
Additionally, Choate’s argument that Cumulus’s deviation
from its standard practice of including Shannon in its triple sign-off
creates an inference of discrimination is unpersuasive. The district
court did not err in finding the evidence showed this policy was not
always used. For example, Frey testified the Market Manager is not
always involved in termination decisions. Milner also testified that
whether a triple sign-off for termination is used “depends on the
situation.” Philips also noted the Market Manager is not always
involved in termination decisions and that “something of this
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10 Opinion of the Court 23-10282
scale” would likely rise to McCarty, Milner, Denning, and himself
alone. Thus, the record does not support a finding that Cumulus
deviated from its standard termination policy, and this does not
create an inference of discrimination.
As to Choate’s argument regarding the Appellees’ favorable
treatment of Corey Dylan, the record shows they believed Dylan’s
behavior was dissimilar to Choate’s. Dylan was accused of being
rude and belligerent because she was not recognized and not al-
lowed in the VIP lounge. Conversely, Choate was accused of yell-
ing at Live Nation employees, threatening their jobs, calling them
“fat and stupid,” and requiring the head of security be called to the
VIP lounge to handle the situation. Additionally, Choate was ac-
cused of grabbing a person’s butt and grinding on their leg, both
without the other person’s consent. Frey testified the investigation
into Dylan “did not dig up any other incidents other than just her
not being where she should be and not being very nice.” Frey also
noted “[t]he level of allegations directed toward Choate far out-
weighed what was directed towards Corey Dylan.” Milner simi-
larly explained that, although the allegations against both Choate
and Dylan were concerning, those against Choate were “much
more severe and much more concerning.” The district court did
not err in concluding a reasonable jury would not find that Cumu-
lus’s different treatment of Choate and Dylan demonstrated dis-
crimination.
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III. CONCLUSION
The district court’s certification of its grant of partial sum-
mary judgment as a final and appealable order under Federal Rule
of Civil Procedure 54(b) was proper. The district court did not
abuse its discretion in excluding Thomas’s testimony and the dis-
trict court did not err in granting summary judgment in favor of
the Appellees on Choate’s Title VII claims.
AFFIRMED.
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