           Case: 18-10725   Date Filed: 08/19/2019   Page: 1 of 18


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-10725
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 4:16-cv-00249-CDL



MICHAEL B. BROWN,

                                              Plaintiff – Appellant,


                                  versus


SYNOVUS FINANCIAL CORPORATION,

                                              Defendant - Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Georgia
                      ________________________

                             (August 19, 2019)

Before JILL PRYOR, NEWSOM and ANDERSON, Circuit Judges.

PER CURIAM:
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       Michael Brown, proceeding pro se, appeals the district court’s grant of

summary judgment in favor of his former employer, Synovus Financial

Corporation (“Synovus”), in his race discrimination suit.1 Brown also appeals the

district court’s denial of his motion “to Set Aside the Order” under Federal Rule of

Civil Procedure 60(b), which the court construed as a Federal Rule of Civil

Procedure 59(e) motion. After careful review, we affirm the district court.

                                  I.      BACKGROUND

       Brown is an African-American man, who, at the time of this lawsuit,

conducted internal audits for Synovus.2 Synovus hired Brown as a Senior Auditor

in 2007. One year later, Synovus promoted him to Audit Manager and assigned

Keith Greene as his supervisor. In 2010, Synovus designated Sandra Weekley as

Brown’s primary supervisor. Weekley reported to Andy Cottle.




       1
        Brown brought claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-2(a)(1), and 42 U.S.C. § 1981. Because discrimination claims brought under Title VII
and § 1981 “are subject to the same standards of proof and employ the same analytical
framework,” we apply that framework to address both claims. Bryant v. Jones, 575 F.3d 1281,
1296 n.20 (11th Cir. 2009).
        Even though Brown’s complaint also purported to allege a retaliation claim under Title
VII, the district court implicitly determined that Brown had adequately pled only race
discrimination—not retaliation—claims. Brown abandoned his retaliation claim by not briefing
it on appeal, so we do not address it. See Access Now, Inc. v. Southwest Airlines Co., 385 F.3d
1324, 1330 (11th Cir. 2004) (determining that where an issue is abandoned, this court “do[es] not
address its merits”).
       2
         The district court’s November 28, 2017 order granting summary judgment to Synovus
contains a thorough recitation of the facts of this case. We thus include here only those facts
necessary to the disposition of Brown’s appeal.
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      As an Audit Manager, Brown was required to test assigned controls for

audits, confer with management, collect documentation, and create audit reports

listing his findings and conclusions. Brown had to follow Synovus’s departmental

standards, which included: documenting his work accurately and

contemporaneously, completing projects by their assigned deadlines and within

budgeted audit-hours, noting his findings and conclusions clearly, and performing

work within its assigned scope.

      Brown’s employment with Synovus was marked by consistent negative

reviews from his supervisors. Even though his initial evaluations of Brown were

largely positive, Greene soon began to identify what he considered to be serious

problems with Brown’s performance. In 2009, Greene noted that Brown struggled

to complete his work in a timely manner; what work Brown produced contained

“frequent and sloppy errors such as misspellings and incomplete sentences” and

required “re-work” before it could be used. Doc. 39-3 at 370.3 Greene also noted

that Brown failed to keep managers apprised of his progress, exceeded budgeted

audit-hours, and produced unclear work that failed to comply with department

standards. From 2010 through 2012, Weekley gave Brown increasingly negative

reviews. Weekley’s stated foremost concern was Brown’s failure or refusal to

update management on audit progress, including his failure to upload and


      3
          Citations in the form “Doc. #” refer to numbered entries on the district court’s docket.
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document his work. In formal reviews, she described Brown’s work as “often hard

to follow,” requiring “multiple revisions,” and failing to “meet the minimum

expected standards of the job.” Doc. 36-4 at 101, 120. Weekley also remarked

that although Brown was “consistently above” Synovus’s 75% productivity goal,

that metric was an inaccurate measure of the timeliness or efficiency of his work

for two reasons: Brown (1) spent excessive time on his audits and (2) failed to

timely document his progress. Doc. 36-4 at 110. Despite poor evaluations, Brown

received multiple merit pay raises: 1.5% in 2011, 2% in 2012, and 1% in 2013.

Weekley testified by declaration, however, that these merit raises were among the

lowest on her team and that Brown’s 1% raise was the lowest she had ever

recommended.

      According to Brown, his managers’ criticisms were baseless. Brown

believed that he completed and documented his work in a timely manner. He

described his work as “high quality” and “not requir[ing] re-work” by his

supervisors. Doc. 39-3 at 228.

      In late 2012, Brown was assigned to Synovus’s 2012 Financial Reporting

Audit. He objected to having his name listed among the authors of the final report

because he was assigned menial tasks (such as pulling documents) rather than audit

tests. Synovus disregarded Brown’s objection and listed his name on the report.




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      Also in late 2012, Weekley took two steps to address Brown’s performance:

she met with Brown for daily coaching sessions over a roughly two-month period,

and she contacted Human Resources to discuss issuing Brown a Performance

Improvement Plan (“PIP”).

      Synovus then placed Brown on a 45-day PIP. The PIP, in part, stated that

Brown was not meeting minimum expected standards of his job with regard to the

quality of his audits and his communications. The PIP required Brown to improve

communication, timeliness, and quality of work and sustain acceptable

performance after the conclusion of the PIP. Brown believed that the PIP was a

baseless “cover up” for the decision to list his name and credentials on Synovus’s

2012 Financial Reporting Audit. Doc. 39-1:7-8. Nonetheless, Brown successfully

completed his PIP in early 2013.

      In mid-2013, Weekley met with Brown and told him his performance was

again worsening. After consulting with her superiors, Weekley decided to

terminate Brown’s employment, effective early 2014. In the interim, Weekley and

Cottle emailed about Brown’s performance. In a formal comment on his 2012

evaluation, Brown had written: “False and misleading evaluator(s) [sic] comments

fail to validate the evaluator(s) [sic] ambitious rating.” Doc. 36-4 at 121. Cottle

wrote in an email to Weekley that he “did not understand that statement” and asked

what it meant. Doc. 39-3:120. Weekley responded, “Your guess is as good as


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mine.” Id. Cottle replied: “I don’t think he was finished with language training

when he was thrown from the mother ship.” Id.

       Brown was fired in early 2014. After the Equal Employment Opportunity

Commission issued him a right-to-sue letter, Brown sued Synovus.4 In his

complaint, Brown alleged that Synovus held him to a different standard than his

white coworkers and terminated him for actions his white coworkers engaged in

without consequence.

       Synovus moved for summary judgment. It argued that Brown could not

establish a prima facie case of discrimination under the McDonnell Douglas5

burden-shifting standard because he failed to identify any similarly situated

comparators. Even if Brown could establish a prima facie case, Synovus

contended, he could not establish that Synovus’s legitimate, non-discriminatory

reason for his termination—poor performance—was a pretext for discrimination.

Synovus explained that despite Brown’s managers’ counseling, his supervisor’s

coaching, and the PIP, he had failed to meet deadlines, given false status reports,

exceeded budgeted audit-hours on projects, submitted work with unsupported

       4
         Around the same time, Brown filed a counseled whistleblower complaint with the
Occupational Safety and Health Administration (“OSHA”), claiming that Synovus retaliated
against him after he complained about potential Sarbanes-Oxley violations. OSHA dismissed his
complaint, Brown moved for reconsideration, and the Administrative Review Board dismissed
Brown’s petition as untimely and denied his motion for reconsideration. In a companion case,
we affirmed the Board. See Brown v. Sec’y of Labor, 739 Fed. App’x 978 (11th Cir. 2018)
(unpublished).
       5
           McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973).
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conclusions, and exceeded the scope of assigned audits. In support of that

explanation, Synovus pointed to annual evaluations, coaching notes, and the PIP

stating that Brown failed to upload his workpapers, did not update management on

audit progress, regularly exceeded budgeted audit-hours without authorization or

explanation, created faulty work product, and withheld information from team

members.

      The district court granted Synovus summary judgment. The court explained

that Brown failed to make out a prima facie case of discrimination because he

failed to identify any similarly situated comparators. The court also decided that

even if Brown could show a prima facie case of discrimination, he failed to show

that Synovus’s legitimate non-discriminatory reason for his termination—poor

performance, including his failure to produce on-time, within-budget, and adequate

quality work and his failure to communicate his progress on his assignments—was

a pretext for intentional discrimination.

      Brown subsequently filed a “60(B)(1)(3) Motion to Set Aside the Order.”

Doc. 51 at 1. Construing Brown’s motion as a motion for reconsideration under

the district’s Local Rule 7.6, the district court denied the motion. The district court

later vacated that order, issued a new order construing Brown’s motion as a motion

for reconsideration under Rule 59(e), and denied that motion. Brown again moved




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for relief under Rule 60(b); the court also denied that motion. Brown timely

appealed.

                        II.    STANDARDS OF REVIEW

      We review de novo the district court’s grant of summary judgment,

construing the facts and drawing reasonable inferences in the light most favorable

to the nonmoving party. Jones v. UPS Ground Freight, 683 F.3d 1283, 1291-92

(11th Cir. 2012). 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). A genuine dispute of material

fact exists when “the evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). “The mere existence of a scintilla of evidence in support of the plaintiff’s

position will be insufficient; there must be evidence on which the jury could

reasonably find for the plaintiff.” Id. at 252.

      When a district court makes a finding of fact that the defendant’s proffered

reason for termination was not pretextual, we reverse only where that factual

finding was clearly erroneous. See Fowler v. Blue Bell, Inc., 737 F.2d 1007, 1012

(11th Cir. 1984).

      We review for abuse of discretion the denial of a Rule 59(e) motion. Mincey

v. Head, 206 F.3d 1106, 1137 (11th Cir. 2000). We also review for abuse of


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discretion the denial of a Rule 60(b) motion. See Cano v. Baker, 435 F.3d 1337,

1341-42 (11th Cir. 2006).

                               III.   DISCUSSION

      We affirm the district court’s grant of Synovus’s motion for summary

judgment. Brown failed to demonstrate that Synovus’s explanation for his

termination was a pretext for discrimination. The district court did not abuse its

discretion in denying Brown’s motion to set aside its order granting summary

judgment.

A. Race Discrimination Claims

      “A plaintiff may prove a claim of intentional discrimination through direct

evidence, circumstantial evidence, or statistical proof.” Alvarez v. Royal Atl.

Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). When, as here, an

employee bases his claim of discrimination on circumstantial evidence, we apply

the burden-shifting framework established in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973). See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087

(11th Cir. 2004). Under the McDonnell Douglas framework, the employee may

establish a prima facie case of discrimination by showing that: (1) he belongs to a

protected class, (2) he was subjected to an adverse employment action, (3) his

employer treated similarly situated employees outside his classification more

favorably, and (4) he was qualified to do the job. Id. at 1091. If the employee


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makes this showing, a presumption arises that the adverse action was

discriminatory. Id. at 1087. The burden then shifts to the employer to rebut the

presumption by articulating a legitimate and nondiscriminatory reason for the

adverse action. Id. If the employer carries its burden, the burden returns to the

employee, who must show that the employer’s stated reason was pretext for

discrimination. Id. The employee may survive summary judgment only if he both

rebuts his employer’s proffered reason directly, see id. at 1088, and puts forth

enough evidence from which a jury could conclude that the real reason was

unlawful discrimination,6 see Flowers v. Troup Cty., Ga., Sch. Dist., 803 F.3d

1327, 1339 (11th Cir. 2015).

       1. Brown Failed to Show that Synovus’s Proffered Reason Was Pretext
          for Unlawful Discrimination.

       Even assuming Brown satisfied the first step of the McDonnell Douglas

framework by identifying valid comparators, Synovus articulated a legitimate, non-

discriminatory reason for its decision to terminate Brown: poor performance.

Beginning in 2009, Greene notified Brown that he needed to produce work in a

timely manner, without sloppy errors, and without requiring re-work before it



       6
         If an employee cannot establish each McDonnell Douglas element, he can still avoid
summary judgment by presenting “a convincing mosaic of circumstantial evidence that would
allow a jury to infer international discrimination by the decisionmaker.” Smith v. Lockheed-
Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (internal quotation marks omitted). Brown
has not argued that he presented a “convincing mosaic” of evidence that would allow an
inference of racial discrimination, so we do not address it.
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could be used. From 2010 through 2012, Weekley warned Brown that his work

was produced without updates to his managers on progress, was disorganized, and

exceeded budgeted audit-hours. She also warned Brown that he still failed to

produce work in a timely manner and his work continued to require re-work before

use. Weekley continued to address Brown’s poor performance in coaching

sessions held each week. The PIP reiterated Brown’s performance shortcomings.

After Brown completed the PIP in September 2013, Weekley warned Brown one

final time of his poor performance before terminating him in early 2014. Because

the district court found that the Synovus’s proffered reason was not pretextual, we

may reverse that factual finding only if it was clearly erroneous. Fowler, 737 F.2d

at 1012.

      Brown failed to demonstrate both that Synovus’s reason was false and that

discrimination was the real reason. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S.

502, 515 (1993). We start with Brown’s attempts to rebut Synovus’s reason. First,

Brown contends that his merit-based raises and his above-75% productivity rating

contradicted Weekley’s low performance evaluations, post-termination statements,

and the PIP. But Weekley testified that Brown’s 1% pay increase was the lowest

raise she had ever approved and explained that Brown’s productivity rating did not

reflect his timeliness; it only meant he spent more time on audit work than non-

audit work. Second, Brown’s own assessment of his performance as exceeding


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expectations was insufficient to show pretext. See Holifield v. Reno, 115 F.3d

1555, 1565 (11th Cir. 1997) abrogated on other grounds by Lewis v. City of Union

City, Ga., 918 F.3d 1213 (11th Cir. 2019) (When an employer has presented

evidence of poor performance, “an employee’s assertions of his own good

performance are insufficient to defeat summary judgment.”) Third, Brown argues

that Greene’s initial positive performance reviews and subsequent characterization

of Brown’s work as unreliable cast doubt on Synovus’s proffered reason. Even

though Greene’s reviews of Brown grew increasingly negative over time, a

manager’s evolving opinion of an employee’s performance, without more, reveals

nothing discriminatory. 7

       Brown also failed to demonstrate that discrimination was the true reason for

his termination. See St. Mary’s, 509 U.S. at 515. His main argument is that

Cottle’s “mother ship” comment evidenced Synovus’s discriminatory intent.

Brown has failed to show that this January 2013 remark had any relation to his

January 2014 termination. The fact that Cottle’s comment was made nearly a year

before Brown’s termination undercuts Brown’s argument that the comment

demonstrated pretext. Nor did Brown put forward any other evidence connecting


       7
         In a related argument, Brown contends that Greene’s participation in Brown’s 2012 PIP
and his 2014 termination demonstrated Synovus’s discriminatory intent. He has failed to
substantiate that contention. He identified no evidence explaining how Greene’s participation
impacted Brown’s evaluations and termination, and he made no argument why a former
manager’s involvement with his employee’s PIP or termination would be improper—much less
demonstrate racial animus.
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Cottle’s comment to Synovus’s decision to terminate him. Cottle’s comment,

although insensitive, is insufficient alone to establish racial animus. See Scott v.

Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1229 (11th Cir. 2002) (“Although a

comment unrelated to a termination decision may contribute to a circumstantial

case for pretext, it will usually not be sufficient absent some additional evidence

supporting a finding of pretext.” (internal citation omitted)).

      Brown’s additional arguments regarding Synovus’s discriminatory intent,

unsupported by the record, do not persuade us. Brown contends that the PIP was

partially motivated by his complaint regarding the 2012 Financial Reporting audit,

but the undisputed evidence shows that the PIP was drafted before the audit began.

And we find no record support for Brown’s contentions that his supervisors

“intentionally and racially excluded” him from working on the 2012 audit and

assigned him to “re-review[] and agree[]” with his “white team members[’]”

opinions. Appellant Br. at 15-16. Brown further argues that the PIP alone

constituted discriminatory animus, but we cannot agree, because the PIP reflected

his supervisors’ longstanding and well-documented concerns regarding Brown’s

performance.




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       Brown failed to rebut Synovus’s proffered reason for his termination and

failed to demonstrate that discrimination was the true reason. 8 The district court

properly granted Synovus summary judgment on Brown’s race discrimination

claims.9

       2. Brown Cannot Succeed on Direct Evidence and Statistical Proof
          Theories.

       Brown argues that even if his race discrimination claims fail based on

circumstantial evidence, he can still avoid summary judgment under two other

theories. First, he argues that we should consider Cottle’s “mother ship” remark

and his accompanying “discriminatory” actions to be direct evidence of

discrimination. Second, Brown argues that he raised, and we should consider,

statistical proof of discrimination. For the following reasons, we reject both

arguments.




       8
         Brown argues that Synovus treated similarly situated employees more favorably,
evidencing discrimination. But because Brown has failed to identify comparators who are
“similarly situated in all material respects,” we cannot infer discrimination from Synovus’s
treatment of his colleagues. See Lewis, 918 F.3d at 1218; Silvera v. Orange Cty. Sch. Bd., 244
F.3d 1253, 1259 (11th Cir. 2001). None of Brown’s colleagues constitute comparators because
they occupied different positions, had different certifications, or worked for different supervisors
than Brown. Moreover, there is no record evidence that any of Brown’s colleagues had such
negative performance reviews or comparable continuing, serious performance deficiencies.
Brown’s arguments thus fail to support his claim of discrimination.
       9
         Brown also argues that the district court failed to view the evidence in the light most
favorable to him and ignored his challenges to Synovus’s proffered reason for his termination.
Our review of the record reveals that the district court correctly construed the evidence in
Brown’s favor and adequately addressed Brown’s attempts to rebut Synovus’s proffered reason.
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      We start with the direct evidence argument. We have explained that “blatant

remarks, whose intent could mean nothing other than to discriminate [based on

race]” constitute direct evidence. Akouri v. State of Fla. Dep’t of Transp.,

408 F.3d 1338, 1347 (11th Cir. 2005). But Cottle’s “mother ship” remark was not

a “blatant remark, whose intent could mean nothing other than to discriminate”

based on race. Id; see also Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189

(11th Cir. 1997) (evidence subject to more than one interpretation does not

constitute direct evidence of discrimination). Because there is another reasonable,

non-discriminatory interpretation of Cottle’s comment—that it refers to a space

ship—that comment does not constitute direct evidence of discrimination. See

Merritt, 120 F.3d at 1191. And Brown presented nothing else that could be

construed as direct evidence of discrimination. The district court thus did not

abuse its discretion in declining to consider Brown’s direct evidence theory.

      Additionally, Brown argues that he submitted statistical proof of

discrimination. Like the district court, we read “statistical proof” to refer to his

argument that Synovus maintained a “culture of discrimination” and engaged in

“disparate treatment” that had a “disparate impact.” Doc. 39-1 at 19; Doc. 49 at 14

n.2. Because Brown presented no evidence of disparate treatment or disparate

impact based on statistical proof, however, the district court did not abuse its

discretion in rejecting his arguments.


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B. Brown’s Post-Judgment Motions

       Brown argues that the district court erred by improperly construing his Rule

60(B)(1)(3) motion as a Local Rule 7.6 motion, then a Rule 59(e) motion, and then

denying that motion.10 We reject his arguments.

       As an initial matter, the district court correctly construed Brown’s motion as

a Rule 59(e) motion. A pro se party’s characterization of his motion is not

controlling; the court must determine under which remedial framework to construe

the motion. United States v. Jordan, 915 F.2d 622, 624-25 (11th Cir. 1990)

(explaining that courts must look behind pro se party’s label of a motion to

determine whether the motion is cognizable under a different remedial framework).

Rule 59(e) applies to motions for reconsideration of matters that are encompassed

in a decision on the merits of the dispute; Rule 60 applies to motions for

reconsideration of matters collateral to the merits. Finch v. City of Vernon,

845 F.2d 256, 258 (11th Cir. 1988). Because Brown’s motion went to the merits of

the dispute, the district court properly construed his motion as one brought under

Rule 59(e).



       10
          Brown’s argument that the district court erred by improperly construing his motion as a
motion for reconsideration under Local Rule 7.6 is moot because the district court vacated its
order so construing the motion.
         Brown further argues that the district court erred by failing to consider the Rule 60(b)
criteria. This argument is without merit because the district court explicitly considered those
criteria in denying his second motion for reconsideration. See Doc. 57 at 1-2.
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      Brown failed to meet the standard for a Rule 59(e) motion. A Rule 59(e)

motion must be based upon “newly-discovered evidence or manifest errors of law

or fact.” Arthur v. King, 500 F.3d 1335, 1343 (11th Cir. 2007). It may not be used

to relitigate old matters or raise argument or present evidence that could have been

raised prior to the initial entry of judgment. Id. In his motion, Brown argued that

the district court had erred in granting Synovus summary judgment by: (1) failing

to recognize his properly identified comparators; (2) overlooking relevant

circumstantial evidence of Synovus’s intentional discrimination against him; (3)

not considering four additional emails, attached to the motion, that Brown failed to

submit previously despite having them in his possession; and (4) deciding the case

without a full and fair presentation of evidence, on account of Synovus’s alleged

false representations throughout the proceedings. Brown failed to raise new

evidence because the four emails he attempted to submit were in his possession

and therefore not “new” for the purposes of Rule 59(e). See Arthur, 500 F.3d at

1343 (concluding that proffered evidence that could have been discovered

previously was not “newly discovered” within the meaning of Rule 59(e)).

Further, Brown failed to substantiate his contention that Synovus made false

representations. And he identified no manifest errors of law or fact. The district

court thus did not abuse its discretion in denying Brown’s motion “to Set Aside the

Order” because he presented no grounds for reconsideration under Rule 59(e).


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                             IV.   CONCLUSION

     For the foregoing reasons, we affirm the district court’s order granting

summary judgment to Synovus and denying Brown’s motion to set aside the

judgment.

     AFFIRMED.




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