           Case: 15-10583    Date Filed: 09/25/2015   Page: 1 of 5


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-10583
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 8:13-cv-03110-JSM-TGW



BYRON STEVEN WILLIS,

                                                            Plaintiff-Appellant,

versus

PUBLIX SUPER MARKETS, INC.,

                                                           Defendant-Appellee.

                      ________________________

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

                            (September 25, 2015)

Before TJOFLAT, WILLIAM PRYOR and JULIE CARNES, Circuit Judges.

PER CURIAM:
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       Byron Willis, an African-American male, was employed by Publix Super

Markets, Inc. (“Publix”) from 1996 until August 17, 2012,1 when Publix

discharged him for dishonesty. Proceeding pro se, he brought this action against

Publix under Title VII, 42 U.S.C. §§ 2000e-2, 2000e-3, and 42 U.S.C. § 1981,

claiming that Publix discharged him because of his race and in retaliation for

complaining in the past about being passed over for promotional opportunities and

inadequate training. The District Court concluded that Willis failed to establish

prima facie that he was discharged due to his race or in retaliation for engaging in

protected activity and granted Publix summary judgment. Willis, now represented

by counsel, appeals, arguing that he established a prima facie case of

discrimination and retaliation. We affirm.

       We review a district court’s grant of summary judgment de novo. Thomas v.

Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007) (per curiam).

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).

       Title VII forbids employment discrimination against any person based

on that individual’s race. 42 U.S.C. § 2000e-2(a). Similarly, § 1981 provides that


       1
        Willis was hired as a full-time Damage Return Line Wrapper at Publix’s Lakeland
Return Center. In June 2009, he was transferred to Publix’s High Velocity Warehouse as a
Warehouse Worker, a position he occupied immediately prior to his discharge.
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“[a]ll persons . . . shall have the same right . . . to make and enforce

contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). The essential

elements of a section 1981 and Title VII employment discrimination claim are the

same and are analyzed using the same framework. Standard v. A.B.E.L. Servs.,

Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).

      If, as here, the plaintiff has to rely on circumstantial evidence rather than

direct evidence to prove his allegations, to make out a prima facie case of

discrimination he must show that: (1) he is a member of a protected class; (2) he

was subjected to an adverse employment action; (3) the employer treated similarly

situated employees who are not members of the plaintiff’s class more favorably;

and (4) he was qualified for the job or benefit at issue. Rice-Lamar v. City of Fort

Lauderdale, 232 F.3d 836, 842–43 (11th Cir. 2000).

      To make a comparison of the plaintiff’s treatment to that of non-minority

employees, the plaintiff must show that the comparator “employees are similarly

situated in all relevant respects” to the plaintiff. Knight v. Baptist Hosp. of Miami,

Inc., 330 F.3d 1313, 1316 (11th Cir. 2003) (per curiam) (quotation marks omitted)

(quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)). “In determining

whether employees are similarly situated . . . it is necessary to consider whether the

employees are involved in or accused of the same or similar conduct and are

disciplined in different ways.” Id. “If a plaintiff fails to show the existence of a


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similarly situated employee, summary judgment is appropriate where no other

evidence of discrimination is present.” Wilson v. B/E Aerospace, Inc., 376 F.3d

1079, 1092 (11th Cir. 2004) (quotation marks omitted) (quoting Holifield, 115 F.3d

at 1562).

      Willis failed to show that he was treated less favorably than similarly

situated employees outside his protected class. The employees he offered for

comparison were not similarly situated because, unlike Willis, they had not been

found to have violated Publix’s dishonesty policy. Accordingly, they were not

proper comparators, Knight, 330 F.3d at 1316, and summary judgment was

properly granted.

      Willis also argues that he established prima facie a claim of retaliation. 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). Retaliation claims are also cognizable under 42 U.S.C. §

1981. CBOCS W., Inc. v. Humphries, 553 U.S. 442, 452–57, 128 S. Ct. 1951,

1958–61, 170 L. Ed. 2d 864 (2008). Section 1981 and Title VII retaliation claims

are also analyzed under the same framework. Standard, 161 F.3d at 1328.

      In order to prove retaliation prima facie, a plaintiff must show that: (1) he

engaged in a statutorily protected activity; (2) he suffered a materially adverse

employment action; and (3) there is a causal connection between the protected


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activity and the materially adverse action. Brown v. Ala. Dep’t of Transp., 597

F.3d 1160, 1181 (11th Cir. 2010).

      To establish the causal connection element, the plaintiff must demonstrate

that “the decision maker was aware of the protected conduct at the time of the

adverse employment action.” Brungart v. BellSouth Telecomms., Inc., 231 F.3d

791, 799 (11th Cir. 2000). Further, “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).

      Willis’s complaint failed to allege that his complaints to management were

based on an unlawful employment practice, such as discrimination. He therefore

failed to establish that he engaged in a statutorily protected activity. See 42 U.S.C.

§ 2000e-3(a). Nevertheless, even assuming that he engaged in a protected activity,

he failed to establish a causal connection between the protected activity and his

termination because he did not show that any of the decision-makers were aware of

the protected conduct at the time of his termination. Brungart, 231 F.3d at 799.

      AFFIRMED.




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