Joseph J. Grant v. Miami-Dade County Water & Sewer Department

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-10168
Non-Argument Calendar
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D.C. Docket No. 1:13-cv-22008-RNS
JOSEPH J. GRANT,
Plaintiff-Appellant,
versus
MIAMI-DADE COUNTY WATER & SEWER DEPARTMENT,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(November 23, 2015)
Before TJOFLAT, WILSON, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Joseph Grant, an African-American male, appeals from the district court’s
grant of summary judgment in favor of Miami-Dade County Water & Sewer
Department (the “County”) in his employment-discrimination and retaliation suit
under Title VII, 42 U.S.C. §§ 2000e-2, 2000e-3, and the Florida Civil Rights Act
(“FCRA”), Fla. Stat. § 760.10.1 Grant claims that he was denied training
opportunities and a promotion because of his race and that he was retaliated against
for complaining to human resources and the Equal Employment Opportunity
Commission (“EEOC”) about the alleged discrimination. The district court
granted summary judgment to the County on all claims. After careful review, we
affirm.
I.
Grant began working for the County as a Treatment Plant Operator 1 (“TPO-
1”) in one of its three regional wastewater facilities in 2006.2 Eventually, Grant
requested transfer to the South District plant (“Blackpoint”) because it was
undergoing an expansion and offered more opportunity for advancement.
Blackpoint is a massive facility covering 365 acres with complex and diverse
1 We analyze Grant’s claims under the FCRA under the same legal framework as his
Title VII claims because the FCRA was patterned after Title VII. See Wilbur v. Corr. Servs.
Corp., 393 F.3d 1192, 1195 n.1 (11th Cir. 2004) (“The Florida Civil Rights Act was patterned
after Title VII, and Florida courts have construed the act in accordance with decisions of federal
courts interpreting Title VII.”).
2 We recite the facts drawing all reasonable inferences in favor of Grant, the non-moving
party. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007).
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equipment and processes for wastewater treatment. Grant was warned by other
employees that Blackpoint was “a racist plant.”
Steve Kronheim, who is white, was the Chief Plant Operator at Blackpoint.
Before transferring to Blackpoint in May 2010, Grant had several meetings with
Kronheim. Grant told Kronheim that he was interested in being promoted to a
higher-level TPO-2 position at Blackpoint. Although Kronheim encouraged Grant
to transfer because additional TPO-2s were needed with the plant expansion,
Kronheim explained that Grant would need to learn the processes first and then he
would have the possibility of promotion.
After his transfer, Grant frequently asked Kronheim for training
opportunities to gain knowledge and training in aspects of the plant. For example,
Grant asked to perform “lead operator” duties or to take on “acting supervisor”
responsibilities. According to Grant, Kronheim repeatedly denied his requests,
while he permitted other operators to perform such tasks.
At some point, Grant applied for one of nine open TPO-2 positions at
Blackpoint.3 There is no dispute that Grant was qualified for the position. Grant’s
interview was held on March 16, 2011. Unlike other applicants, who were given
up to two months’ advance notice, Grant was notified of the interview less than
twenty-four hours beforehand. The interview panel consisted of two white males,
3 The record is not entirely clear on when Grant applied for the position, whether it was in
January 2010 or January 2011. In any case, the parties do not suggest that the timing is critical.
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including Kronheim, an African-American male, and a Hispanic female. Grant
was not hired because he did not achieve the minimum score of 63. All four
panelists scored him below 63. The County filled only five of the nine positions.
In April 2011, Grant complained to human resources about what he felt was
a discriminatory hiring process, and he also filed a charge of discrimination with
the EEOC. Following these complaints, Kronheim summoned Grant into his office
and angrily told Grant to do “damage control” and apologize to the people who he
had accused of discrimination, including Kronheim. Grant did not do so.
In September 2011, the County requested Grant’s criminal and credit records
from a public-records company.
In February 2012, Grant sought additional employment outside of the
County. He applied for a TPO-2 position with the City of Fort Lauderdale. Grant
filed with the County a request for outside employment, which Kronheim
approved. But a Department Director denied the request on grounds of safety and
a “conflict of interest” because Grant’s position was considered “essential.”
Nonetheless, Grant began working for Fort Lauderdale on April 2, 2012. Because
Grant worked the night shift at Blackpoint, the schedules did not overlap.
Ultimately, Grant resigned his position with the County. His last day of work was
in July 2012.
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II.
Grant filed his complaint in the United States District Court for the Southern
District of Florida. In an amended complaint, Grant pled the following three
claims: (1) while working for the County, he was subjected to disparate treatment
on account of his race because he was denied additional training opportunities,
while other employees outside his race were not (Count 1); (2) he was denied a
promotion on account of his race (Count 2); and (3) the County retaliated against
him for filing a charge of discrimination with the EEOC by denying his request for
outside employment (Count 3).4
After discovery, the County filed a motion for summary judgment, which the
district court granted. In broad terms, the district court concluded that Grant did
not establish prima facie cases on Counts 1 and 3 because he had not shown that he
was subjected to an adverse employment action, nor had he shown that the
County’s reasons for its actions were a pretext for discrimination. Also, with
regard to Count 3, the court determined that Grant did not demonstrate a causal
connection between the alleged retaliation and the filing of his EEOC charge,
which occurred nine months apart. As for Count 2, the failure-to-promote claim,
4 Count 4 of the complaint alleged the same violations under the FCRA, which, as
mentioned in footnote 1, we address jointly with the Title VII claims. Grant also alleged a
failure-to-promote claim based on events in March 2010, but the district court dismissed this
claim because Grant did not exhaust his administrative remedies. Grant does not challenge this
ruling on appeal, so we do not address it further.
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the court concluded that Grant failed to show the interview process was evidence
of pretext. Grant now appeals.
III.
We review a district court’s grant of summary judgment de novo, viewing
the evidence and drawing all reasonable inferences in favor of the non-moving
party. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007).
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).
IV.
Title VII prohibits employment discrimination on the basis of race, color,
religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). Claims of
discrimination may be supported by either direct or circumstantial evidence. When
a claim is based on circumstantial evidence, we generally apply the familiar
burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S. Ct. 1817 (1973). Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763,
767 (11th Cir. 2005).
Under the McDonnell Douglas framework, the plaintiff must first create an
inference of discrimination by making out a prima facie case. Id. The burden then
shifts to the employer to articulate a legitimate, non-discriminatory reason for the
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challenged employment action. Id. If the employer does so, “the inference of
discrimination drops out of the case entirely,” and the plaintiff then has the
opportunity to show that the employer’s proffered reasons were 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 establish a prima facie case of disparate treatment by
showing that he (1) is a member of a protected class; (2) was subjected to an
adverse employment action; (3) was treated less favorably than another similarly
situated employee outside the protected class; and (4) was qualified. E.E.O.C. v.
Joe’s Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir. 2000). There is no dispute
that Grant was qualified and is a member of a protected class.
To establish an “adverse employment action,” the plaintiff “must show a
serious and material change in the terms, conditions, or privileges of
employment.” Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir.
2001). The plaintiff’s subjective beliefs about the action do not control; the
challenged employment action must be “materially adverse as viewed by a
reasonable person in the circumstances.” Id.; see also Butler v. Ala. Dep’t of
Transp., 536 F.3d 1209, 1215 (11th Cir. 2008).
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As for the third element, we have stated that “[t]he plaintiff and the
employee [he] identifies as a comparator must be similarly situated in all relevant
respects. The comparator must be nearly identical to the plaintiff to prevent courts
from second-guessing a reasonable decision by the employer.” Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004) (citations and internal
quotation marks omitted).
To show pretext, a plaintiff generally must demonstrate “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable factfinder could find
them unworthy of credence.” Alvarez, 610 F.3d at 1265 (citation and internal
quotation marks omitted). The inquiry into pretext centers on the employer’s
beliefs, and a plaintiff cannot establish pretext simply by quarreling with the
wisdom of an employer’s business decisions. Id. at 1265-66.
A.
The district court did not err in concluding that Grant failed to establish a
prima facie case of disparate treatment with regard to the denial of training
opportunities. Even assuming without deciding that Grant showed that he had
experienced an adverse employment action,5 Grant failed to present evidence
5 In order to be actionable under Title VII, Grant needed to show that he suffered a
tangible (“real and demonstrable”), materially adverse harm due to the allegedly discriminatory
denial of training opportunities. See Davis, 245 F.3d at 1239-40. Grant identifies as his only
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suggesting that Grant was denied training that was provided to other similarly
situated employees outside of his protected class. See Wilson, 376 F.3d at 1091.
Grant’s comparators, Aldo Arteaga and Ruben Gutierrez, were not similarly
situated. Arteaga denied ever serving in an acting capacity as a TPO-1. Rather,
Arteaga was a TPO-2 when he served as an “acting supervisor.” Similarly,
Gutierrez started at Blackpoint as a TPO-2 and denied ever serving in any acting
capacity. Thus, they were not similarly situated, and summary judgment was
appropriate because there was no other direct evidence of discrimination. Wilson,
376 F.3d at 1092.
In any case, aside from his prima facie case, Grant did not establish that the
articulated reasons for the County’s actions were pretextual. See Alvarez, 610 F.3d
at 1265. None of the evidence proffered demonstrates that Kronheim did not
honestly in good faith believe that Grant needed to learn the TPO-1 position better
before being assigned any TPO-2 duties or that the real reason for denying Grant
additional training opportunities was racially motivated. Grant argues in essence
tangible harm his belief that the denial of training opportunities cost him points in the interview
for the TPO-2 position and therefore led to the denial of a promotion. But little evidence exists
connecting the alleged denial of training opportunities to Grant’s insufficient interview score.
See id. at 1239 (“[T]he asserted impact cannot be speculative and must at least have a tangible
adverse effect on the plaintiff's employment.”). Grant identifies one specific interview question
about an applicant’s length of experience as a “lead operator,” one of the training opportunities
denied, but that question counted for only 5 points out of a total of 105. Grant’s interview score
of 56 was 7 points below the number required to qualify for a position, so even if Grant had
received the full 5 points on the question based on experience, he still would not have qualified.
Aside from the questions about length of prior experience, Grant admitted that he could have
sufficiently prepared for the interview by studying materials he had studied in the past.
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that he did his job well, that he was fully qualified, and that there was no reason to
deny him the opportunity to serve as a lead operator or acting TPO-2, which he
contends is supported by the depositions of various former coworkers and his
annual evaluations. But the relevant inquiry takes into account the employer’s
beliefs, not the employee’s, and a plaintiff cannot simply substitute his own
business judgment for that of the employer. See id. at 1265-66. The division of
work assignments and responsibilities sits “at the very heart of an employer’s
business judgment and expertise.” Davis, 245 F.3d at 1244. Accordingly,
summary judgment was appropriate on Grant’s claim of disparate treatment based
on the denial of on-the-job training opportunities.
B.
With regard to Grant’s failure-to-promote claim, there is no dispute that
Grant established a prima facie case. Nor does Grant dispute that he failed to
achieve a passing interview score or that this was the reason he was not promoted.
Rather, Grant argues that the underlying interview process is evidence of pretext
because it was materially different from the County’s policy and practice and
contained questions that were specifically designed to exclude him. Grant
specifically points to the following: (1) inadequate advance notice of the interview;
(2) the composition of the interview panel; and (3) the questions asked.
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Grant has not shown that the alleged irregularities in the interview process
are sufficient evidence of pretext to preclude summary judgment. With regard to
notice, although Grant received less notice than other applicants, the record
contains no explanation for why he did, and we will not simply speculate that it
was done for a discriminatory purpose. In addition, Grant admitted that he knew
he was going to be interviewed when he submitted his application and that he
could have prepared for the eventual interview.
Regarding the interview itself, and assuming, as Grant contends, that the
interview process was newly formulated and controlled by Kronheim, there is no
evidence that either the composition of the panel or the questions themselves were
pre-selected for an improper discriminatory purpose, or that the procedures utilized
violated any policy. And it is undisputed that the same four panelists interviewed
all applicants for the TPO-2 positions at Blackpoint and that the panelists asked the
same questions to every applicant.
The composition of the panel did not violate County guidelines, which
recommend a panel of “at least” three panelists of diverse backgrounds, not only
three, despite general prior practice. The recruitment supervisor for human
resources testified that four people were on the panel because “the division had
requested that they wanted to have all three of their chief plant operators sit on the
panel” due to the “essential and critical nature” of the position. Because two of the
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chief plant operators were white males and one was an African-American male, an
Hispanic female was added to balance the panel. Grant has not shown that the
County’s explanation in this respect is unworthy of credence.
With respect to the questions, we will not second-guess the County’s
business decision about what questions to ask in a job interview or what points to
award based on the answers thereto, particularly when the questions undisputedly
relate to technical knowledge relevant to the job and prior relevant experience. As
for the nepotism question Grant points to, it was not scored and it played no part in
Grant’s not being offered the TPO-2 position.
Finally, there is no evidence that the background check performed by the
County in September 2011 had anything to do with Grant’s application for the
TPO-2 position in March 2011. Internal communications revealed that the check
was performed as part of a standard, required review process prompted by Grant’s
renewal of his County identification card in August 2011.
Overall, Grant has not presented sufficient evidence by which a reasonable
jury could conclude that the County’s reason for denying him a promotion was
pretextual or that the decision was motivated by discriminatory animus.6
6 To the extent that Grant contends that he has presented a triable issue of fact outside of
the McDonnell Douglas framework, we disagree. It is true that the burden-shifting framework of
McDonnell Douglas “is not, and was never intended to be, the sine qua non for a plaintiff to
survive a summary judgment motion in an employment discrimination case.” Smith v.
Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). A plaintiff may create a triable
issue of fact “if the record, viewed in a light most favorable to the plaintiff, presents a convincing
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V.
Finally, Grant argues that he established a prima facie case of retaliation and
that, in determining whether he had suffered an adverse action, the district court
applied the wrong standard for determining what constitutes an adverse action in
the retaliation context.
The anti-retaliation provision of Title VII forbids an employer from
retaliating against an employee because he has opposed “an unlawful employment
practice.” 42 U.S.C. § 2000e-3(a). In order to make out a prima facie case of
retaliation under Title VII, a plaintiff must show that (1) he engaged in a statutorily
protected activity; (2) he suffered a materially adverse employment action; and (3)
a causal connection exists between the protected activity and the materially adverse
action. Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010).
In Burlington Northern and Santa Fe Railroad Co. v. White, the Supreme
Court clarified that an adverse employment action under “the antiretaliation
provision [of Title VII], unlike the substantive provision, is not limited to
discriminatory actions that affect the terms and conditions of employment.” 548
U.S. 53, 64, 126 S. Ct. 2405, 2412-13. Instead, the test is whether “a reasonable
employee would have found the challenged action materially adverse, which in this
mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by
the decisionmaker.” Id. But, for similar reasons as discussed above, Grant has not shown such a
convincing mosaic of circumstantial evidence with respect to either of his discrimination claims.
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context means it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Id. at 68, 126 S. Ct. at 2415 (internal
quotation marks omitted).
To show a causal connection, a plaintiff can rely on proximity of the
protected activity and the alleged retaliation. However, “if there is a substantial
delay between the protected [activity] and the adverse action in the absence of
other evidence tending to show causation, the complaint of retaliation fails as a
matter of law.” Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004). So,
while a one-month period between the protected activity and the adverse action
may be sufficient to show causation, a period of three to four months is too
attenuated absent other evidence. Id.
We agree with Grant that the district court appears to have applied the
heightened substantive-discrimination standard—whether the action in fact had a
materially adverse effect on Grant—to his retaliation claim. This was error.
Instead, the court should have asked whether a “reasonable employee would have
found the challenged action materially adverse.” Burlington, 548 U.S. at 68, 126
S. Ct. at 2415.
In any case, the error is harmless. Even assuming that the denial of his
request for outside employment was sufficiently adverse, Grant failed to establish
causation, as more than a nine-month period elapsed between Grant’s last EEOC
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filing and denial of his request. See Higdon, 393 F.3d at 1220. Moreover, even if
he had established a prima facie case, summary judgment would still have been
appropriate because he did not present any evidence that the County’s reasons for
denying his request—safety concerns and a potential conflict of interest—were
actually false and that the real motive was discrimination.
Grant also argues that Kronheim’s instructions to apologize to the
individuals he accused of discrimination and to withdraw his human-resources
complaint were per se retaliatory. These contentions are not properly before us
because they were not pled as the basis for a retaliation claim in the amended
complaint and were raised only in response to the County’s motion for summary
judgment. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th
Cir. 2004) (holding that plaintiffs cannot raise new claims in response to a
summary-judgment motion). Nor did the district court address this claim.
But even if claim were properly before us, Grant did not show that
Kronheim’s statements following Grant’s complaint of discrimination would “have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington, 548 U.S. at 68, 126 S. Ct. at 2415. To be clear, it is
absolutely not acceptable for a supervisor to react to a complaint of discrimination
by demanding an apology or seeking to have the employee withdraw the
complaint. Nonetheless, the anti-retaliation provision does not protect an
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individual “from all retaliation, but from retaliation that produces an injury or
harm,” id. at 67, 126 S. Ct. at 2414, and we cannot conclude, based on the limited
evidence in the record, that Grant showed that a reasonable employee would have
been dissuaded from pressing a charge of discrimination if he had known in
advance that his supervisor would tell him to withdraw the charge or would seek
an apology.7 In sum, the district court properly granted summary judgment on
Grant’s retaliation claims.
VI.
In conclusion, the district court properly granted summary judgment to the
County on Grant’s claims of discrimination and retaliation arising out of his
employment with the County at its Blackpoint wastewater treatment facility.
Therefore, we affirm.
AFFIRMED.
7 In fact, Grant himself refused to apologize. Grant certainly had no reason to apologize
for bringing what he viewed as discrimination to the attention of the Human Resources
Department and was right not to do so. But the fact that he did not apologize tends to suggest
that Grant would have complained even had he known before doing so that his supervisor would
tell him to withdraw the charge or would seek an apology.
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