           Case: 17-10501   Date Filed: 07/27/2018   Page: 1 of 25


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-10501
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:15-cv-02246-JDW-TGW



BOBBY WALKER, JR.,

                                                      Plaintiff - Appellant,

                                  versus

INDIAN RIVER TRANSPORT CO.,
a Florida Profit Corporation,

                                                      Defendant - Appellee.

                       ________________________

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

                              (July 27, 2018)



Before TJOFLAT, JILL PRYOR and NEWSOM, Circuit Judges.

PER CURIAM:
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      Bobby Walker, Jr. resigned from his job as a truck driver and then sued his

former employer, Indian River Transport Co., alleging that it failed to

accommodate his religious beliefs and discriminated and retaliated against him for

requesting Sundays off so that he could attend religious services. The district court

granted summary judgment for Indian River, and Walker appealed. After careful

review, we affirm.

                              I.      BACKGROUND

A.    Factual History

      Walker began attending services at the Kingdom Hall of Jehovah’s

Witnesses when he was eight or nine years old. Although he grew up in the

church, his faith deepened in adulthood and he now attends church services and

meetings every week, including special programming where congregants learn to

minister and lead. Walker’s religious beliefs do not prohibit him from working

during weekends, but he must be able to attend Sunday services at the church.

      Indian River hired Walker as a truck driver in November 2013. At first,

Walker was assigned to regional and long haul routes while he waited for an

opening on a local route close to his home in Florida. Often he was unable to take

Sundays off to attend religious services while he drove these longer routes. Then,

in March 2014, Indian River assigned Walker to a local route transporting milk




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from a dairy in Live Oak, Florida, to a processing facility in Orlando. At the time,

this route was a new account for Indian River.

      The milk route created logistical difficulties for Indian River and its drivers.

Because milk production never stopped, the dairy required Indian River to have an

empty tanker available onsite at all times. Loading empty tankers at the dairy

posed no problem, but unloading at the Orlando processing facility demanded

driver flexibility. Drivers often had to wait for hours after they arrived at the

processing facility before their tankers could be unloaded. The wait times were

unpredictable, and multiple Indian River drivers frequently were waiting

simultaneously for their tankers to be unloaded. This situation created a shortage

of drivers available to drop off empty tankers at the dairy; Indian River sometimes

had to call off-duty drivers to substitute for the drivers who were tied up at the

processing facility. Under Indian River’s agreement with the dairy, if Indian River

failed to provide an onsite empty tanker, it could be held liable for any milk that

was lost due to that failure. Because of the unpredictability in unloading at the

processing facility, Indian River struggled to maintain a consistent driver schedule.

As a result, drivers assigned to the milk route had to be flexible with their

schedules.

      Walker experienced a long wait time at the processing facility one Saturday

evening less than two weeks after Indian River assigned him to the milk route. He


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used the recording system inside his truck to take a video of himself explaining

that he had begun the milk route that morning but was still waiting for his tanker to

be unloaded at the processing facility after 9:00 p.m. He also explained that if his

truck was not unloaded that night he would have to wait at the processing facility

until Monday morning because the facility did not receive deliveries on Sundays.1

He noted that the long wait time took him “[w]ay beyond [his] hours of service”

and that he “require[d] at least one day off.” Doc. 14-11 at 26. 2 Most importantly,

he explained that he was a Jehovah’s Witness and wished to have Sundays off so

that he could attend church services.

       A day or two after Walker created the video, he was called into Indian

River’s office for a meeting to discuss it with his dispatcher, Angel Deliz, and one

of Indian River’s vice presidents of operations, Todd Godwin. According to

Walker, Deliz and Godwin “looked kind of upset,” and Godwin told him that he

“c[ould not] let [his] religion get in the way of” his work. Doc. 14-11 at 29.

Walker also testified that Deliz told him that Deliz’s wife was “real serious about

her church too . . . but . . . she’ll put her job ahead of that.” Id. at 30. Deliz,

however, denied ever speaking with Walker about his wife’s religion. During the


       1
         Indian River disputes that the processing facility was closed for deliveries on Sundays,
but because this is an appeal from a ruling on Indian River’s motion for summary judgment, we
consider the facts in the light most favorable to Walker, the non-moving party. See Moton v.
Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011).
       2
           Citations to “Doc. #” refer to numbered entries on the district court’s docket.
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meeting, Deliz explained that drivers who needed Sundays off could not be

assigned to the milk route given the unpredictability of the scheduling and the need

for driver flexibility. Deliz and Godwin told Walker that he had to be reassigned

and that they would “find something else for [him].” Id.

       Walker drove the milk route three more times after his meeting with Deliz

and Godwin, on March 17, 18, and 25. None of these days was a Sunday. 3 Then

he was assigned to a different dispatcher, Joy Primavera. Walker testified that

Primavera did not call to offer him any work for several weeks after he was

assigned to her. In the meantime, Walker filed a charge of discrimination with the

Equal Employment Opportunity Commission (EEOC) on April 18. Walker

testified that Primavera eventually reached out to him, but not until after he filed

his EEOC charge.

       Other evidence shows, though, that Indian River employees reached out to

Walker and that he drove for Indian River after he was reassigned to Primavera but

before he filed his EEOC charge. First, Walker’s “movement display”—a chart

listing the runs he drove for Indian River—shows that he worked on March 29

(Saturday) and 31 (Monday) and on April 1 (Tuesday). Second, Indian River’s

phone records show outgoing calls to Walker on March 31 and April 1, 7, and 15.
       3
         In some instances, the record is silent as to which day of the week certain dates fell on
in 2014. We take judicial notice of the 2014 calendar for purposes of filling in these gaps. See
Fed. R. Evid. 201(b) (“The court may judicially notice a fact that is not subject to reasonable
dispute because it . . . can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.”).
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Third, Steve Ferguson, Indian River’s Director of Human Resources, sent an email

to Primavera on April 15, asking when she had last dispatched Walker and whether

she had been “unable to accommodate” him “being off for church or any other

religious events.” Doc. 14-10 at 3. Primavera responded that she had not spoken

with Walker for over two weeks, but that she had called him “several times with no

luck talking to him.” Id.

      Indian River continued to offer Walker work after he filed his EEOC charge.

On Friday, April 18, Ferguson wrote a note to Primavera that he had spoken with

and offered Walker work for that day and the weekend. The note said that Walker

had declined the work but would call Indian River on the following Monday.

Walker denied that Ferguson offered him work on April 18—testimony we must

credit on summary judgment—but he acknowledged that he was told to call Indian

River on Monday, April 21. Walker’s movement display shows that he then

worked on April 21 and four other days in April, including one Sunday.

      Walker was dissatisfied with the work he was offered after Indian River

removed him from the milk route. He testified that the routes he was offered did

not pay well and that in some instances Indian River would not tell him in advance

how much he would be paid for the routes because the amount was so low. Walker

told Primavera that he wanted to be assigned to a dedicated route, meaning a local




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route that he could perform on a consistent schedule, but Primavera told him that

she had no openings on dedicated routes.

         According to Walker, his request for Sundays off also resulted in several

other negative consequences in addition to being offered only low paying routes.

First, he testified that Primavera and Ferguson were “argumentative” and

“aggressive” toward him and that Ferguson “kept an eye on” him anytime he went

into Indian River’s offices. Doc. 14-11 at 54. Second, he testified that Indian

River began to assign him inferior equipment. In particular, he testified about two

instances following his request for Sundays off when he experienced mechanical

problems with his truck. Third, he relies on two emails between two Indian River

employees as support for his contention that his request for an accommodation

resulted in his being deemed “problematic.” In the first email, Ferguson told JJ

Harned, one of Indian River’s vice presidents of operations, that Walker was

pulled off the milk route because he was “problematic on that run” and “one of the

primary issues was that . . . he require[d] Sundays off to attend church.” Doc. 18-1

at 8. In the second email, in which Harned replied to the first email, Harned asked

Ferguson to keep him posted about Walker because “this guy is problematic.” Id.

at 11.

         Although Walker testified that his request for Sundays off is what caused

these negative consequences, Primavera expressed difficulty working with him. At


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one point, she emailed Ferguson and Harned to report that Walker had been

complaining because he had not yet received a dedicated route. She also noted that

Walker was scheduled to begin a run in less than an hour and that she had “left

about 11 voice mails with no[] response.” Doc. 14-10 at 2. She said that she

“c[ould] not make [Walker] [h]appy” and “c[ould] not work with . . . him.” Id.

Harned responded first, saying that “[t]his driver either needs to disappear or run

[long haul routes].” Id. Then Ferguson responded that he had left a message for

Walker and would “deal” with him. Id.

      The frustrations expressed in Primavera’s email were consistent with other

evidence showing that Walker was, at times, difficult to manage. Deliz testified

that on one occasion while Walker was still assigned to the milk route, Walker

took a load home with him rather than driving straight to the processing facility

and failed to inform dispatch that he was doing so. Primavera similarly testified

that Walker once dropped a loaded trailer off at the Indian River yard rather than

waiting for it to be unloaded at the client’s business because the wait time was too

long for him. She also testified that he declined work on more than one occasion

because the routes she offered him involved long wait times.

      Walker resigned from his employment with Indian River on May 3, 2014.

Earlier that day, Ferguson had called Walker and asked him to bring his truck to

Indian River’s offices. While Walker was driving to the office, his truck


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malfunctioned. Believing that Ferguson was going to fire him, Walker decided to

“resign and forget it.” Doc. 14-11 at 39. He called Indian River’s maintenance

contractor to come assist him and wrote out a resignation letter as he waited to

hand over the key to his truck. In the letter, Walker said that he was resigning due

to truck safety problems, explaining that he thought Indian River might have

intentionally caused the problems due to his EEOC charge.

B.    Procedural History

      Walker sued Indian River under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq., alleging that Indian River failed to accommodate his

religious practices. He also alleged that Indian River discriminated and retaliated

against him for requesting Sundays off and for filing a charge of discrimination

with the EEOC. Indian River moved for summary judgment on all of Walker’s

claims, and the district court granted the motion. This is Walker’s appeal.4

                           II.     STANDARD OF REVIEW

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

all inferences and reviewing all evidence in the light most favorable to the non-

moving party. Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). 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.


      4
          Walker’s motion to file an amended reply brief out of time is GRANTED.
                                              9
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R. Civ. P. 56(a). “The moving party may meet its burden to show that there are no

genuine issues of material fact by demonstrating that there is a lack of evidence to

support the essential elements that the non-moving party must prove at trial.”

Moton, 631 F.3d at 1341 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

(1986)).

                               III.   DISCUSSION

A.    Walker’s Failure to Accommodate Claim Fails Because Indian River
      Offered Walker a Reasonable Accommodation.

      Walker first argues that the district court erred in granting summary

judgment for Indian River on his claim for failure to reasonably accommodate his

religious practices. Title VII prohibits employers from discriminating “against any

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

employment, because of such individual’s . . . religion.” 42 U.S.C. § 2000e-

2(a)(1). The word “religion” is defined to “includ[e] all aspects of religious

observance and practice, as well as belief, unless an employer demonstrates that he

is unable to reasonably accommodate” a “religious observance or practice without

undue hardship on the conduct of the employer’s business.” Id. § 2000e(j). Put

differently, these provisions mean that “[a]n employer has a ‘statutory obligation to

make reasonable accommodation for the religious observances of its employees,

short of incurring an undue hardship.’” Walden v. Ctrs. for Disease Control &



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Prevention, 669 F.3d 1277, 1293 (11th Cir. 2012) (quoting Trans World Airlines,

Inc. v. Hardison, 432 U.S. 63, 75 (1977)).

      To succeed on a claim based on an employer’s failure to accommodate

religious practices, an employee must first establish a prima facie case of religious

discrimination by showing that he (1) had a bona fide religious belief that

conflicted with an employment requirement, (2) informed his employer of his

belief, and (3) was disciplined or discharged for failing to comply with the

conflicting employment requirement. See Morrissette-Brown v. Mobile Infirmary

Med. Ctr., 506 F.3d 1317, 1321 (11th Cir. 2007). After the employee establishes a

prima facie case, “the burden shifts to the employer to demonstrate that he is

unable to reasonably accommodate an employee’s . . . religious observance or

practice without undue hardship on the conduct of the employer’s business.”

Dixon v. Hallmark Cos., 627 F.3d 849, 855 (11th Cir. 2010) (internal quotation

marks omitted).

      The district court concluded that Walker’s claim that Indian River failed to

reasonably accommodate his religious practices failed for three reasons: (1)

Walker failed to establish a prima facie case because he offered no evidence that he

suffered an adverse employment action, (2) Indian River provided Walker with a

reasonable accommodation as a matter of law by offering him routes other than the

milk route, and (3) Indian River could not have accommodated Walker’s request to


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stay on the milk route while also having Sundays off without suffering an undue

hardship. We need not review each of these reasons, however, because we agree

with the district court that Indian River offered Walker a reasonable

accommodation as a matter of law.

      Title VII does not define the term “reasonably accommodate.” Beadle v.

Hillsborough Cty. Sheriff’s Dept, 29 F.3d 589, 592 (11th Cir. 1994). “Thus, the

precise reach of the employer’s obligation to [reasonably accommodate] its

employee is unclear under the statute and must be determined on a case-by-case

basis.” Id. But “the Supreme Court has explained that a reasonable

accommodation is one that ‘eliminates the conflict between employment

requirements and religious practices.’” Morrissette-Brown, 506 F.3d at 1322

(quoting Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70 (1986)). An employer

need not “give an employee a choice among several accommodations,” nor must it

“demonstrate that alternative accommodations proposed by the employee

constitute undue hardship.” Walden, 669 F.3d at 1293-94. Instead, “the inquiry

ends when an employer shows that a reasonable accommodation was afforded the

employee, regardless of whether that accommodation is one which the employee

suggested.” Beadle, 29 F.3d at 592.

      Indian River offered Walker a reasonable accommodation as a matter of law.

As Deliz explained, drivers who needed a particular day off each week were not a


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good fit for the milk route. The unpredictable wait times at the processing facility

meant that even off duty drivers had to be prepared to work unexpectedly to

deliver empty tankers to the dairy. Because the need for extra drivers could arise

at any time, all of the drivers assigned to the milk route had to be flexible with

their scheduling. Walker’s need for Sundays off meant that he lacked the required

flexibility, so Indian River accommodated him by offering him non-dedicated local

routes that would not involve the possibility of mandatory Sunday work. This

accommodation was reasonable because it “eliminate[d] the conflict between

[Walker’s] employment requirements and [his] religious practices.” Morrissette-

Brown, 506 F.3d at 1322 (internal quotation marks omitted).

      Walker disagrees, arguing that the accommodation he was offered was

unreasonable for four reasons. First, he argues that Indian River failed to eliminate

the conflict between his employment requirements and his need for Sundays off

because “a substantial percentage of runs offered to him after he was taken off the

[milk] run required Sunday work.” Appellant’s Br. at 9. It is true that Indian River

offered Walker work on a Sunday once or twice after his request, but Walker

acknowledged that Indian River permitted its drivers to decline routes. We would

agree with Walker that the accommodation was unreasonable, or that there was in

fact no accommodation, had Indian River required Walker to work on Sundays or

offered him only Sunday routes. But Walker does not dispute that he was


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offered—and accepted—routes on many days other than Sundays, including March

29 and 31, as well as April 1, 21, 22, 29, and 30. The fact that Indian River also

offered Walker the occasional Sunday route does not change our conclusion that it

provided him with a reasonable accommodation. 5

       Second, Walker contends that it was unreasonable to remove him from the

milk route because he needed only a few hours off on Sundays to attend his

religious services, not the entire day, and he could have driven his truck to church

and then returned to the processing facility. This argument fails because Indian

River had no obligation to provide him with the accommodation of his choice. See

Walden, 669 F.3d at 1293-94. Walker may have preferred an accommodation that

allowed him to remain on the milk route and drive his truck to church for a few

hours on Sundays, but Indian River satisfied its duties under Title VII by changing

his work schedule to eliminate the possibility of mandatory Sunday work. See

Beadle, 29 F.3d at 592 (“[T]he inquiry ends when an employer shows that a

reasonable accommodation was afforded the employee, regardless of whether that

accommodation is one which the employee suggested.”).

       Third, Walker argues that it was unreasonable to remove him from the milk

route because, until his request for Sundays off, his assignment to that route had

       5
        Walker also argues that Indian River easily could have offered him non-Sunday work
because many of its customers were closed on Sundays. But we need not separately address this
argument given our conclusion that Indian River provided Walker with a reasonable
accommodation by offering him work on many days other than Sunday.
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never required Sunday work. We reject this argument because Walker drove the

milk route for the first time on March 4 and then requested Sundays off on March

15—less than two weeks later. Only one Sunday passed during that time period.

The fact that the milk route did not require Walker to work on that one Sunday was

insufficient to establish that he could have been off every Sunday had he remained

assigned to the milk route.

      Fourth, Walker contends that Indian River failed to reasonably

accommodate him because the routes he was offered after his request paid less than

the milk route. But an accommodation may be reasonable even if it adversely

impacts the employee to some extent. See, e.g., Bruff v. N. Miss. Health Servs.,

Inc., 244 F.3d 495, 502 n.23 (5th Cir. 2001) (noting that “a significant reduction in

salary” was insufficient on its own to make an accommodation unreasonable).

Although we do not foreclose the possibility that in some circumstances an

accommodation may be unreasonable when it demands a substantial reduction in

pay, the evidence is insufficient for us to draw that conclusion in this case. Here,

Walker testified that in one instance Indian River paid him “barely” $20 for a local

route that took him “all day,” and that the routes he was offered generally paid less

than the milk route. Doc. 14-11 at 68. But the evidence showed that dedicated

local routes like the milk route and non-dedicated local routes paid differently.

Although Walker told Primavera that he wanted to be assigned to a dedicated local


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route, she lacked any openings on that type of route. So assigning Walker to non-

dedicated local routes was the only way to ensure that he would not have

mandatory Sunday work. The fact that at least some of those routes happened to

pay less than the milk route is insufficient to render the accommodation

unreasonable.

      In sum, we conclude that Indian River offered Walker a reasonable

accommodation by removing him from the milk route and offering him other

routes because doing so eliminated the possibility of mandatory Sunday work. The

district court did not err, therefore, in granting summary judgment for Indian River

on Walker’s claim for failure to accommodate his religious practices.

B.    Walker’s Discrimination and Retaliation Claims Fail Because He Has
      Provided No Evidence of Discriminatory or Retaliatory Intent.

      Walker next argues that the district court erred in granting summary

judgment for Indian River on his discrimination and retaliation claims. As we

noted above, Title VII prohibits employers from discriminating against employees

because of their religious practices. See 42 U.S.C. § 2000e-2(a)(1). In addition to

prohibiting discrimination, Title VII also prohibits retaliation by making it

unlawful “for an employer to discriminate against any of his employees . . .

because he has opposed any practice made an unlawful employment practice by

this subchapter.” Id. § 2000e-3(a).



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      A Title VII plaintiff bears the burden of proving discrimination or retaliation

by a preponderance of the evidence. See Crawford v. Carroll, 529 F.3d 961, 975

(11th Cir. 2008). He may carry this burden by presenting either direct or

circumstantial evidence of his employer’s discriminatory or retaliatory intent. Id.

at 975-96. When, as here, a discrimination or retaliation claim is supported by

circumstantial evidence, we analyze it according to the familiar burden shifting

framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). See Lubetsky v. Applied Card Sys., Inc., 296 F.3d 1301, 1305 (11th Cir.

2002) (discrimination); Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181 (11th

Cir. 2010) (retaliation). Under this framework, the employee must first establish a

prima facie case of discrimination or retaliation. See Crawford, 529 F.3d at 976.

If the employee establishes a prima facie case, the burden shifts to the employer to

articulate “some legitimate, nondiscriminatory reason” for the adverse employment

action. Id. (internal quotation marks omitted). If the employer makes this

showing, the burden shifts back to the employee “to show that the employer’s

stated reason was pretext.” Id.

      The elements of a prima facie case of discrimination differ from those of a

prima facie case of retaliation. A prima facie case of discrimination requires proof

that the employee was (1) a member of a protected class, (2) subjected to an

adverse employment action, (3) treated less favorably than similarly situated


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employees outside of his class, and (4) qualified to do the job. See McCann v.

Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008). A prima facie case of retaliation,

by contrast, requires proof that (1) the employee engaged in statutorily protected

expression, (2) the employee suffered an adverse employment action, and (3) there

was a causal connection between the two events. See Johnson v. Booker T.

Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000).

      The differences between discrimination and retaliation claims matter little in

this case, however, because the only element in dispute is common to both types of

claims: whether Walker suffered an adverse employment action. Walker points to

an array of actions by Indian River that he argues constituted an adverse

employment action: assigning him Sunday work, offering him only lower paying

routes, providing him with inferior equipment, and subjecting him to heightened

surveillance and discipline. Indian River responds that none of these actions rises

to the level of severity needed to establish a prima facie case of discrimination or

retaliation. We agree with Indian River for the most part, except we conclude that

Walker’s evidence that Indian River offered him only lower paying routes was

sufficient to create a genuine dispute of material fact as to whether he suffered an

adverse employment action.

      Retaliation claims may be supported by a broader range of adverse

employment actions than substantive discrimination claims. See Burlington N. and


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Santa Fe Ry. Co. v. White, 548 U.S. 53, 64 (2006) (“[T]he antiretaliation provision,

unlike the substantive [discrimination] provision, is not limited to discriminatory

actions that affect the terms and conditions of employment.”). For retaliation

claims, the employee only must show that “a reasonable employee would have

found the challenged action materially adverse,” meaning that “it well might have

dissuaded a reasonable worker from [engaging in the protected activity].” Id. at 68

(internal quotation marks omitted). For discrimination claims, by contrast, an

employee must show that he suffered a “serious and material change in [the] terms,

conditions, or privileges of his employment.” Crawford, 529 F.3d at 974 n.14

(internal quotation marks omitted).

      Walker’s proof regarding most of Indian River’s purported adverse

employment actions was insufficient to satisfy either of these standards. First,

Walker contends that he was “assigned” Sunday work, but in reality Indian River

only offered him Sunday work. As we have already discussed, Walker was free to

accept or decline runs for any reason, and the majority of runs that Indian River

offered him after he requested an accommodation were for days other than Sunday.

Thus, Indian River’s decision to offer Walker a handful of Sunday runs was not

adverse to Walker at all.

      Second, Walker cites two instances when he experienced mechanical

problems with his truck as evidence that Indian River began providing him with


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inferior equipment. But when asked during his deposition whether he had any

evidence that these mechanical problems were related to his request for Sundays

off, he responded “[I] don’t know.” Doc. 14-11 at 67. He also conceded that he

lacked any knowledge about the maintenance that had been conducted on his truck

or any evidence that anyone at Indian River had attempted to sabotage it. In short,

Walker has failed to cite any evidence showing that the isolated mechanical

problems he experienced with his truck were due to Indian River having

intentionally assigned him inferior equipment.

      Third, Walker claims that he was subjected to heightened surveillance and

discipline, but his only proof is his deposition testimony that Primavera was

“argumentative” with him and that Ferguson was “aggressive” and “kept an eye on

[him]” whenever he went into Indian River’s offices. Doc. 14-11 at 54. This

generalized testimony about Walker’s interactions with other Indian River

employees is too conclusory to raise a genuine issue of material fact that he

suffered an adverse employment action.

      But we cannot reach the same conclusion regarding Walker’s testimony that

he received only lower paying routes after he was removed from the milk route.

Reducing an employee’s pay constitutes an adverse employment action even under

the more rigorous standard applicable to discrimination claims. See Hinson v.

Clinch Cty., Ga. Bd. of Educ., 231 F.3d 821, 829 (11th Cir. 2000) (“Transferring


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an employee to a job with lower pay is an adverse employment action.”); see also

Doe v. Dekalb Cty. Sch. Dist., 145 F.3d 1441, 1448 (11th Cir. 1998) (referring to a

reduction in pay as “patently adverse” for purposes of a claim under the Americans

with Disabilities Act). As a result, Walker’s testimony was sufficient to create a

genuine dispute of material fact as to whether he suffered an adverse employment

action.

       Because Walker offered sufficient proof on the only disputed element of his

prima facie case of discrimination and retaliation, the burden shifts to Indian River

to articulate a legitimate, nondiscriminatory reason for offering Walker only lower

paying routes. See Crawford, 529 F.3d at 976. But this burden is easily satisfied

because Indian River explains that it only removed Walker from the milk route and

began offering him different local routes because it was attempting to

accommodate his request for Sundays off. Thus, the burden shifts back to Walker

to show that this reason was pretext for an employment decision that was actually

motivated by discriminatory or retaliatory intent. Id.

       Walker has failed to carry his burden to show pretext. He primarily relies on

Harned’s testimony about two emails exchanged between Ferguson and Harned in

which they both referred to Walker as “problematic.”6 In the first email, Ferguson


       6
          The emails themselves are absent from the record. Because we must view the evidence
in the light most favorable to Walker, however, we will assume that the content of the emails is
accurately reflected by Harned’s deposition testimony about them.
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told Harned that Walker was taken off the milk route because he was “problematic

on that run” and “one of the primary issues was that . . . he require[d] Sundays off

to attend church.” Doc. 18-1 at 8. In the second email, which Harned sent in

response to the first email, Harned asked Ferguson to keep him posted about

Walker because “this guy is problematic.” Id. at 11. These emails are insufficient

to establish pretext because, without more, they reveal no impermissible bias

against Walker. Ferguson labelled Walker as “problematic” only in the context of

the milk route, which was unpredictable and required significant flexibility in

drivers’ schedules. When asked during his deposition whether Walker’s request

was “one of the things that made him problematic,” Ferguson explained that the

request “created issues for operations to handle the account that [Walker] was on,”

meaning the dairy account. Doc. 14-5 at 11 (emphasis added). And even though

Harned’s email in reply failed to indicate why he thought Walker was

“problematic,” Harned was merely responding to Ferguson’s email, which, as we

have explained, concerned why Walker had to be removed from the milk route

specifically, not his religious practices or request for an accommodation more

generally.

      Walker also relies on another email from Harned in which he said that

Walker “either needs to disappear or run [long haul routes].” Doc. 14-10 at 2. But

again, the context of the email is crucial. Harned sent this email in response to


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Primavera’s email explaining that Walker had been complaining about not having

a dedicated route and that she “c[ould] not make [Walker] [h]appy.” Id. Her email

made no reference to Walker’s religious practices or request for an

accommodation. Harned testified that in commenting that Walker needed to

“disappear” or run long haul routes, he meant only that Walker was left with two

options: find employment elsewhere or accept longer routes. Harned’s email is

insufficient to show an impermissible bias against Walker based on his religious

beliefs.7

       Finally, Walker relies on the purported statements by Godwin and Deliz

during their meeting with Walker a day or two after he informed Indian River of

his need for Sundays off. According to Walker, Godwin told him that he “c[ould

not] let [his] religion get in the way of” his work, and Deliz said that his wife was

“real serious about her church too . . . but . . . she’ll put her job ahead of that.”

Doc. 14-11 at 29-30. Assuming, as we must, that Godwin and Deliz made these

statements, Walker cannot rely on them as evidence that impermissible bias against

his religious practices was Indian River’s true motivation for beginning to offer


       7
         Walker briefly argues that the emails discussed above constitute direct evidence of
discrimination, but we disagree. Direct evidence of discrimination is evidence that, “if believed,
proves the existence of a fact in issue without inference or presumption.” Schoenfeld v. Babbitt,
168 F.3d 1257, 1266 (11th Cir. 1999) (alterations adopted) (internal quotation marks omitted). It
consists of “only the most blatant remarks, whose intent could be nothing other than to
discriminate on the basis of some impermissible factor.” Id. (internal quotation marks omitted).
Ferguson’s and Harned’s emails fall far short of these criteria.

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him only lower paying routes. Even though Godwin and Deliz were involved in

the decision to remove Walker from the milk route, Walker has presented no

evidence that either one was involved in deciding which routes he was offered

from that point forward. The undisputed evidence shows that Deliz dispatched

Walker only while he was assigned to the milk route; after he was removed from

that route, Primavera became his new dispatcher. From then on, Walker

communicated with Primavera about the routes that he was being offered,

including his desire for a dedicated local route. And although the record shows

that Ferguson and Harned became involved in Walker’s scheduling after he

requested an accommodation, Walker has put forward no evidence that either Deliz

or Godwin had any say in Walker’s assignments after Primavera became his

dispatcher. As a result, Deliz’s and Godwin’s statements do not establish pretext.

       Because Walker has failed to come forward with sufficient evidence to

establish pretext, his discrimination and retaliation claims fail as a matter of law.

Therefore, the district court correctly granted summary judgment for Indian River

on those claims. 8



       8
          Walker argues that the McDonnell Douglas framework is not the only means by which
he can establish discrimination and that he presented “enough circumstantial evidence to raise a
reasonable inference of intentional discrimination.” Appellant’s Br. at 25 (quoting Hamilton v.
Southland Christian Sch., Inc., 680 F.3d 1316, 1320 (11th Cir. 2012)). True, a triable issue of
fact exists if a plaintiff presents “a convincing mosaic of circumstantial evidence that would
allow a jury to infer intentional discrimination by the decisionmaker.” Smith v. Lockheed-Martin
Corp, 644 F.3d 1321, 1328 (11th Cir. 2011) (internal quotation marks omitted). But, for the
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                                  IV.    CONCLUSION

       For the foregoing reasons, we affirm the district court’s grant of summary

judgment in favor of Indian River.

       AFFIRMED.




reasons stated above, Walker has failed to come forward with enough circumstantial evidence of
discrimination for his claims to survive even under a “convincing mosaic” theory.
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