              Case: 13-14902     Date Filed: 07/25/2014   Page: 1 of 14


                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 13-14902
                             Non-Argument Calendar
                           ________________________

                        D.C. Docket No. 1:11-cv-02452-AT



MARLON CARSON,
LAMAR CLARK,

                                                           Plaintiffs-Appellants,

                                        versus

METROPOLITAN ATLANTA RAPID
TRANSIT AUTHORITY (MARTA),
BEVERLY SCOTT,
individually and in her official capacity as
the General Manager of MARTA, et al.,

                                                           Defendants-Appellees.

                           ________________________

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

                                   (July 25, 2014)
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Before HULL, MARCUS, and ANDERSON, Circuit Judges.

PER CURIAM:

      Marlon Carson and Lamar Clark (collectively, “Plaintiffs”) jointly appeal

from the district court’s grant of summary judgment in an employment racial

discrimination and retaliation suit brought under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. § 2000e, and 42 U.S.C. § 1981. The suit named as defendants

the Plaintiffs’ employer, the Metropolitan Atlanta Rapid Transit Authority

(“MARTA”), as well as the following MARTA officials in both their individual

and official capacities: Beverly Scott, general manager; John M. Weber, director

of rails and operations; Linda Lee, general superintendent; Richard Krisak,

assistant general manager of rail operations; and Dwight Ferrell, chief operating

officer (collectively, “Defendants”).

      The Plaintiffs’ complaint stemmed from their 2009 terminations from their

positions with MARTA. Carson, an African-American who worked as a rail line

supervisor, alleged that he had been fired for racially discriminatory and retaliatory

purposes, under the pretext that he had violated MARTA rules by operating a train

while off duty on September 17, 2009, among other misconduct. Clark, an

African-American who worked as a rail superintendent, alleged that the

Defendants fired him after he had objected to Carson’s treatment, under the pretext

that Clark had failed to fully investigate Carson’s earlier alleged violations of


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MARTA’s radio-operation policies and had forwarded to Carson, without

authorization, an e-mail that contained the recordings of the radio transmissions

being investigated.

                             I. Racial Discrimination

      The Plaintiffs first argue that the district court erred in granting summary

judgment in favor of the Defendants as to the Title VII and § 1981 claims of racial

discrimination. They contend that the Defendants’ proffered legitimate,

nondiscriminatory reasons for their terminations were contradictory and not

credible, and therefore the claims should survive summary judgment.

      The Plaintiffs then proceed to list a number of alleged contradictions within

the evidence. First, inconsistencies exist as to whether certain defendants had seen

a letter written by an individual who had accused Weber of creating a hostile work

environment. Second, the evidence included contradictory accounts as to the

extent of the Defendants’ knowledge regarding Weber’s alleged discriminatory

conduct. Third, contradictory evidence exists as to the manner in which MARTA

investigated and reported Carson’s alleged rule violations. Fourth, the evidence

shows an inconsistency regarding MARTA’s termination policies.

      Fifth, the Plaintiffs argue that the evidence presents contradictions as to

whether Carson in fact violated MARTA’s rules and policies. Ferrell testified in a

deposition that Carson was certified and capable of operating one of MARTA’s


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trains, yet Carson’s termination letter stated otherwise. Additionally, Weber’s

office assistant, Dawn Pope, stated in an affidavit that a member of the legal and

human resource departments had told her that the Plaintiffs should not have been

terminated because they had not disobeyed any rules. Weber also could not

explain why Carson’s sanctions for violating MARTA’s rules far exceeded the

required sanctions. Moreover, contradictions existed as to whether Carson had

been cleared for duty by the time he operated a train on September 17, 2009.

Sixth, the evidence suggests that Clark’s termination had been in error. An

affidavit from MARTA employee Toya Kellum stated that she overheard Lee tell

Clark to stop his investigation into Carson. Krisak later confirmed that, if Clark

had been told to stop his investigation, such an instruction would have made a

difference as to whether he should have been terminated.

      Finally, with regard to Clark’s claims of racial discrimination, the Plaintiffs

argue that the district court failed to consider Weber’s “pattern and practice” of

habitually treating African-American subordinates less favorably than white

subordinates.

      We review the grant of summary judgment de novo. Rioux v. City of

Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008). “When deciding whether

summary judgment is appropriate, all evidence and reasonable factual inferences

drawn therefrom are reviewed in a light most favorable to the non-moving party.”


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Id. at 1341-42. Once the moving party meets its burden of production, “the

nonmoving party must present evidence beyond the pleadings showing that a

reasonable jury could find in its favor.” Shiver v. Chertoff, 549 F.3d 1342, 1343

(11th Cir. 2008) (quotation omitted). A mere ‘scintilla’ of evidence supporting the

opposing party’s position will not suffice; there must be enough of a showing that

the jury could reasonably find for that party. Brooks v. Cnty. Comm'n of Jefferson

Cnty., 446 F.3d 1160, 1162 (11th Cir. 2006) (quotation omitted).

      Title VII makes it illegal for an employer “to discriminate against any

individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1).

Likewise, under 42 U.S.C. § 1981, “[a]ll persons . . . shall have the same right . . .

to make and enforce contracts . . . as is enjoyed by white citizens,” which in an

employment context means protection against discrimination based on race and

color. 42 U.S.C. § 1981(a); see also Standard v. A.B.E.L. Servs. Inc., 161 F.3d

1318, 1330-34 (11th Cir. 1998). Allegations of racial discrimination brought under

Title VII and § 1981 are analyzed using the same evidentiary requirements and

analytical framework. See Standard, 161 F.3d at 1330.

      Because the Plaintiffs concede that they relied upon circumstantial evidence,

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

411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), is applicable to their race


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discrimination claims. Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir.

2000) (en banc) (discussing an ADEA claim).

      Under McDonnell Douglas, a plaintiff must first establish, by a

preponderance of the evidence, a prima facie case of discrimination. McDonnell

Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. To prevail on a claim for racial

discrimination under Title VII based on circumstantial evidence, an employee may

show that: (1) he was a member of a protected class; (2) he suffered an adverse

employment action; (3) he was qualified for the position; and (4) he was replaced

by a person outside of his protected class or was treated less favorably than a

similarly situated individual outside of his protected class. Maynard v. Bd. of

Regents, 342 F.3d 1281, 1289 (11th Cir. 2003).

      If the plaintiff successfully demonstrates a prima facie case, the burden then

shifts to the employer to produce evidence that its action was taken for a

legitimate, non-discriminatory reason. McDonnell Douglas, 411 U.S. at 802-03,

93 S.Ct. at 1824. In the third step of the analysis, the plaintiff must show that the

employer’s proffered reason really is a pretext for unlawful discrimination. Id. at

804, 93 S.Ct. at 1825.

      The inquiry into pretext requires us to view all of the evidence and

“determine whether the plaintiff has cast sufficient doubt on the defendant’s

proffered nondiscriminatory reasons to permit a reasonable factfinder to conclude


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that the employer’s proffered legitimate reasons were not what actually motivated

its conduct.” Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)

(citation omitted). Such evidence must demonstrate “weaknesses, implausibilities,

inconsistences, incoherencies, or contradictions in the employer’s proffered

legitimate reasons for its action that a reasonable factfinder could find them

unworthy of credence.” Id. (quotation omitted). A plaintiff may not establish

pretext simply by questioning the wisdom of the employer’s reason. Id. at 1543.

Instead, he must meet the employer’s reason ‟head on” and rebut it. Wilson v. B/E

Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir. 2004).

      A reason is not pretext for discrimination “‘unless it is shown both that the

reason was false, and that discrimination was the real reason.’” Brooks, 446 F.3d

at 1163 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct.

2742, 2752, 125 L.Ed.2d 407 (1993)). An employee may do that “either directly

by persuading the court that a discriminatory reason more likely motivated the

employer or indirectly by showing that the employer’s proffered explanation is

unworthy of credence.” Jackson v. Ala. State Tenure Comm., 405 F.3d 1276, 1289

(11th Cir. 2005) (quotation omitted). Ultimately, our inquiry is limited to “whether

the employer gave an honest explanation of its behavior.” Chapman, 229 F.3d at

1030 (quotation omitted).




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A.    Carson’s Racial Discrimination Claims

      Here, in light of all the evidence, the district court did not err in concluding

that the Plaintiffs failed to demonstrate pretext as to Carson’s discrimination

claims. See McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825; Combs, 106

F.3d at 1538. Although the Plaintiffs base their argument on a string of alleged

contradictions in the evidence, a majority of these contradictions are irrelevant to

whether Carson actually had violated MARTA rules and policies, and thus do not

rebut head-on the proffered legitimate, nondiscriminatory reason for his

termination. See Wilson, 376 F.3d at 1088; Combs, 106 F.3d at 1538.

      The only identified inconsistencies that are relevant to the Defendants’

reason for terminating Carson concern whether he in fact violated MARTA’s

policies. However, none of these inconsistencies show that the proffered reason

for his termination is unworthy of credence. See Combs, 106 F.3d at 1538.

Finally, even if the Plaintiffs had shown that the Defendants’ proffered reason for

the termination had been false, they failed to establish that racial discrimination

was the real reason for his firing. See Brooks, 446 F.3d at 1163.

      B.     Clark’s Racial Discrimination Claim

      Here, the Plaintiffs have not challenged the district court’s conclusion that

Clark failed to exhaust his administrative remedies with regard to the racial


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discrimination claim brought under Title VII. Hence, any challenges to the grant

of summary judgment on Clark’s discrimination claims are limited to the count

brought under § 1981. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2

(11th Cir. 2005) (holding that a party abandons claims that he does not argue in his

brief).

          As to the § 1981 discrimination claim, neither of the Plaintiffs’ arguments

has merit. First, a “pattern and practice” claim only may be brought by the

government or a class of private plaintiffs pursuant to Federal Rule of Civil

Procedure 23(b)(2). See Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955,

964-65 (11th Cir. 2008). Second, even if the Plaintiffs’ argument with regard to

pretext has merit, the district court had determined that the Plaintiffs failed to

establish a prima facie case of discrimination after failing to identify any similarly

situated employees outside of Clark’s class who had received more favorable

treatment. Thus, the Plaintiffs did not first meet their burden regarding a prima

facie case, nor do they challenge that matter on appeal. McDonnell Douglas, 411

U.S. at 802, 93 S.Ct. at 1824; Maynard, 342 F.3d at 1289.

                                      II. Retaliation

          The Plaintiffs next argue that the district court erred in granting summary

judgment as to their Title VII and § 1981 retaliation claims. Regarding Carson’s

claims, the Plaintiffs contend that his complaints about Weber’s routine


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discriminatory practices, as well as MARTA’s failure to address this

discriminatory conduct, constituted what Carson would reasonably believe to be

protected expression. Further, the court’s assumption that Carson’s termination

had been too remote in time to his complaints is not supported by the record

evidence. Also, an affidavit from MARTA employee Ethel Williams established

that, after Carson had filed a 2004 complaint against Weber, Weber had stated that

Carson would not advance any further than his current position at MARTA.

Regarding Clark’s claims, the Plaintiffs argue that he had a good-faith belief that

he was engaging in a statutorily protected activity when he declined to investigate

or punish Carson, because that sanction exceeded MARTA’s rules and policies.

Finally, the Plaintiffs argue that the Defendants’ proffered legitimate,

nondiscriminatory reasons for their terminations were contradictory and not

credible.1



       1
          The response brief submitted for this appeal asserts, among other arguments, that the
Plaintiffs’ appeal should be dismissed for failure to pay the docketing fee. However, the docket
sheets for both our clerk’s office and the district court indicate that on November 11, 2013, the
Plaintiffs paid the required $508, which included the $450 docketing fee, the $5 filing fee, and a
$53 returned-items fee for a prior insufficient payment. See 11th Cir. R. 3, I.O.P.; 28 U.S.C.
§ 1917. Accordingly, the Plaintiffs remain in compliance with Rule 3(e). See Fed.R.App.P. 3(e)
(“Upon filing a notice of appeal, the appellant must pay the district clerk all required fees.”).
         Also, in their reply brief, the Plaintiffs request a default judgment against defendant
MARTA, as well as MARTA’s exclusion from oral argument, because MARTA failed to timely
file a response brief. The Plaintiffs contend that the submitted response brief came only from the
defendants named as individuals, and did not include MARTA. Even assuming, arguendo, that
MARTA did not join in the response brief, the request for a default ruling in the Plaintiffs’ favor
is meritless, because the only punishment MARTA could receive is losing the opportunity to be
heard on oral argument. See Fed.R.App.P. 31(c). Also, because we have decided this appeal
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       As noted above, we review the grant of summary judgment de novo. Rioux,

520 F.3d at 1274. Title VII provides that “[i]t shall be an unlawful employment

practice for an employer to discriminate against any of his employees . . . because

he has opposed any practice made an unlawful employment practice by [Title VII],

or because he has made a charge” under Title VII. 42 U.S.C. § 2000e–3(a); see

Thompson v. North American Stainless, LP, 562 U.S. __, ___, 131 S.Ct. 863, 867,

178 L.Ed.2d 694 (2011). Section 1981 of Title 42 also encompasses retaliation

claims by an employee. Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249,

1257-58 (11th Cir. 2012) (citation omitted). A plaintiff seeking to bring a

retaliation claim under either statute must first establish a prima facie case by

showing that (1) he engaged in a statutorily protected activity; (2) he suffered a

materially adverse action; and (3) there was a causal connection between the

protected activity and the adverse action. Id. at 1258 (quotations omitted).

       To state a retaliation claim, the plaintiff need only show that he had a

“reasonable belief” that an unlawful employment practice was occurring, and is not

required to show that the employer actually engaged in an unlawful employment

practice. Berman v. Orkin Exterminating Co., Inc., 160 F.3d 697, 702 (11th Cir.

1998). A plaintiff also may establish causation by showing that the decision-


without the aid of oral argument, the Plaintiffs’ request to exclude MARTA from oral argument
is moot.



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makers were “aware of the protected conduct, and that the protected activity and

the adverse action were not wholly unrelated.” McCann v. Tillman, 526 F.3d

1370, 1376 (11th Cir. 2008) (quotations omitted). One way to do this is to

demonstrate that there was close temporal proximity between the two events.

Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). However,

a delay of three to four months is too long, as a matter of law, to prove causation.

Id.; see also Maniccia v. Brown, 171 F.3d 1364, 1370 (11th Cir. 1999) (concluding

that “[t]he more than 15-month period that elapsed between Appellant’s grievance

and the alleged adverse employment actions belies her assertion that the former

caused the latter”).

      With regard to whether an employee has engaged in a statutorily protected

activity, an employer may not retaliate against an employee because the employee

“has opposed any practice made an unlawful employment practice by” Title VII.

42 U.S.C. § 2000e-3(a). Similarly, an employer may not retaliate against an

employee because the employee “has made a charge, testified, assisted, or

participated in any manner in an investigation, proceeding, or hearing under this

subchapter.” Id. A complaint about an employment practice constitutes protected

opposition only if the individual explicitly or implicitly communicates a belief that

the practice constitutes unlawful employment discrimination. EEOC Compl. Man.

(CCH) §§ 8-II-B(2) (2006); see also Fed. Express Corp. v. Holowecki, 552 U.S.


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389, 399, 128 S.Ct. 1147, 1156, 170 L.Ed.2d 10 (2008) (stating that the EEOC

manual reflects “a body of experience and informed judgment to which courts and

litigants my properly resort for guidance”).

      A.     Carson’s Retaliation Claims

      Here, the district court did not err in granting summary judgment as to

Carson’s Title VII and § 1981 claims of retaliation. The court correctly concluded

that, while Carson did file an internal complaint against Weber in 2004, it was too

temporally remote from Carson’s termination in 2009 to establish a causal nexus.

See Thomas, 506 F.3d at 1364.

       B.    Clark’s Retaliation Claim

      As with the racial discrimination claims, the Defendants have not challenged

the district court’s conclusion that Clark failed to exhaust his administrative

remedies with regard to the retaliation claim brought under Title VII. Hence, any

challenges to the rulings on Clark’s retaliation claims are limited to the count

brought under § 1981. See Sepulveda, 401 F.3d at 1228 n.2.

      As to Clark’s § 1981 retaliation claim, the district court did not err in

granting summary judgment. Nothing in the record indicates that Clark either

halted his investigation into Carson’s alleged violations of radio-transmission

policies, or forwarded the e-mail to Carson related to that investigation, in an effort




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to oppose MARTA’s unlawful employment practices. See 42 U.S.C. § 2000e-3(a);

Gate Gourmet, 683 F.3d at 1258.

                                  III. Conclusion

      For the reasons stated above, the district court did not err in granting

summary judgment as to all claims brought by the Plaintiffs, and we affirm.

      AFFIRMED. 2




2
      Appellees’ Motion to File Appendix Out of Time is DENIED.
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