              Case: 12-14443    Date Filed: 06/17/2013   Page: 1 of 8


                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-14443
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 1:10-cv-03401-RWS



PAUL DENT,

                                                                Plaintiff-Appellant,

                                      versus

GEORGIA POWER COMPANY,

                                                              Defendant-Appellee.

                          ________________________

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

                                 (June 17, 2013)

Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Paul Dent, proceeding pro se, appeals the district court’s grant of summary

judgment in favor of Georgia Power on his claim of retaliation under Title VII of
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the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-3(a). In his

complaint, Dent alleged that Georgia Power placed him on administrative leave

and then terminated him based on his filing of two claims of racial discrimination:

an internal Workplace Ethics (“WPE”) concern, and an Equal Opportunity

Employment Commission (“EEOC”) charge. Georgia Power submitted evidence

that its decisionmakers did not know about Dent’s EEOC charge and that it placed

Dent on administrative leave and subsequently terminated him because of his

insubordinate behavior during a meeting with his superiors approximately two

months after the filing of his WPE concern and less than a week after the filing of

his EEOC charge. The district court concluded that Dent’s evidence did not

establish a prima facie case of retaliation, and, in any event, Dent could not show

that Georgia Power’s proffered reason for its actions was pretextual.

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

all evidence and factual inferences reasonably drawn from the evidence in the light

most favorable to the non-moving party. Sims v. MVM, Inc., 704 F.3d 1327, 1330

n.2 (11th Cir. 2013). 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 of the Civil Rights Act of 1964 prohibits employers from

discriminating against employees for engaging in activity protected under the


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statute. 42 U.S.C. § 2000e-3(a). Specifically, it prohibits discrimination because

an employee “opposed any practice made an unlawful employment practice by

[Title VII], or because he has made a charge, testified, assisted, or participated in

any manner in an investigation, proceeding, or hearing under [Title VII].” Id.

      When, as here, a plaintiff uses circumstantial evidence to prove

discrimination under Title VII, we apply the burden-shifting approach articulated

in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). See

Brooks v. Cnty. Comm’n, 446 F.3d 1160, 1162 (11th Cir. 2006). Under the

McDonnell Douglas framework, a plaintiff has the initial burden to establish a

prima facie case of discrimination, which creates a presumption that the employer

discriminated against the plaintiff. Id. If the plaintiff establishes a prima facie

case, the burden of production shifts to the employer to provide a legitimate,

nondiscriminatory reason for the action taken, which rebuts the presumption of

discrimination. Id. The plaintiff is then afforded an opportunity to show that the

employer’s stated reason is a pretext for discrimination. Id. Despite the shifting of

burdens of production, the ultimate burden to prove intentional discrimination

remains with the plaintiff. Id.

      To establish a prima facie case of retaliation under Title VII, a plaintiff must

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

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


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between the protected activity and the materially adverse employment action.

Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). “The

causal link element is construed broadly so that a plaintiff merely has to prove that

the protected activity and the negative employment action are not completely

unrelated.” Id. (quotations omitted). “At a minimum, a plaintiff must generally

establish that the employer was actually aware of the protected expression at the

time it took adverse employment action.” Clover v. Total Sys. Servs., Inc., 176

F.3d 1346, 1354 (11th Cir. 1999) (quotation omitted). Causation may be inferred

by close temporal proximity between the protected activity and the adverse

employment action. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th

Cir. 2007). However, temporal proximity alone is not sufficient when the

unrebutted evidence shows that the decisionmaker did not have knowledge of the

employee’s protected conduct. See Brungart v. BellSouth Telecomms., Inc., 231

F.3d 791, 798-99 (11th Cir. 2000).

      Once the employer has advanced a legitimate, nondiscriminatory reason, a

plaintiff must prove pretext by a preponderance of evidence. Meeks v. Computer

Assocs. Int’l, 15 F.3d 1013, 1019 (11th Cir. 1994). To prove pretext, a plaintiff

may rely on evidence previously submitted as part of his prima facie case.

Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc). An

employer’s reasons may be shown to be pretextual “by revealing such weaknesses,


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implausibilities, inconsistencies, incoherencies or contradictions in [its] proffered

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

unworthy of credence.” Springer v. Convergys Customer Mgmt. Grp., 509 F.3d

1344, 1348 (11th Cir. 2007) (quotation omitted). A reason cannot be a “pretext for

discrimination unless it is shown both that the reason was false, and that

discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,

515, 113 S. Ct. 2742, 2752 (1993) (quotation omitted).

      If the proffered reason is one that might motivate a reasonable employer, a

plaintiff cannot merely recast the reason, but must “meet that reason head on and

rebut it.” Chapman, 229 F.3d at 1030. A plaintiff must show pretext with

“concrete evidence in the form of specific facts.” Bryant v. Jones, 575 F.3d 1281,

1308 (11th Cir. 2009). Mere “conclusory allegations and assertions” will not

suffice. Id. We have observed that the fact that an employer’s decision was

subjective, or that it was based on an unwritten or informal policy subject to

differing interpretations, without more, does not show that it was pretextual.

Connor v. Fort Gordon Bus Co., 761 F.2d 1495, 1501 (11th Cir. 1985). And

“[w]hen a plaintiff chooses to attack the veracity of the employer’s proffered

reason, ‘[the] inquiry is limited to whether the employer gave an honest

explanation of its behavior.’” Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304,




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1310-11 (11th Cir. 2012) (quoting Elrod v. Sears, Roebuck & Co., 939 F.2d 1466,

1470 (11th Cir. 1991)).

       Dent’s WPE concern and EEOC charge were statutorily protected activities

and his termination was an adverse employment action. The district court

assumed, for purposes of summary judgment, that Dent also suffered an adverse

employment action when Georgia Power placed him on administrative leave.

Because neither party contests this decision, we will assume the same for purposes

of this appeal.1

       As to the EEOC charge, however, Dent did not make a prima facie case

because neither of the decisionmakers had knowledge of it prior to suspending and

terminating Dent. Dent has not provided any evidence to show otherwise, and no

reasonable inference from Dent’s evidence suggests that the decisionmakers knew

of the EEOC charge prior to his termination. 2


1
        Although Dent claimed in his summary judgment response that he was “blacklisted” after
his termination and this constituted a third adverse employment action, the district court properly
refused to consider this argument because it was not raised in Dent’s amended complaint. See
Gilmour v. Gates, McDonald, & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (“A plaintiff may not
amend her complaint through argument in a brief opposing summary judgment.”); Maniccia v.
Brown, 171 F.3d 1364, 1367 n.1 (11th Cir. 1999) (affirming district court’s conclusion at
summary judgment stage that a claim should not be addressed because it was not raised in the
complaint).
2
        Dent argues liability based on a “cat’s paw” theory of causation. See Sims, 704 F.3d at
1335 n.6 (noting that cat’s paw theory, also referred to as “subordinate bias theory,” is liability
seeking to hold an employer liable for the animus of a supervisor who was not charged with
making the ultimate employment decision). This argument fails because the Georgia Power
manager who knew about Dent’s EEOC charge did not speak to either of the decisionmakers
prior to their decision, and Dent did not show that the manager who knew of the charge took any
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       As to the WPE concern, even assuming arguendo that Dent has established a

prima facie case, he cannot show that Georgia Power’s proffered legitimate,

nondiscriminatory reason for its actions was pretext. Georgia Power alleged that

Dent was suspended and subsequently terminated based on his insubordinate

behavior in a meeting with his superiors. Dent acknowledges that he was upset

during the meeting and that, after he was told that he had violated a company

policy and that there would be consequences if he continued to do so, he

encouraged his supervisors to discipline him because he was not going to change

his conduct. Although Dent argues that a jury could find that his behavior in the

meeting was reasonable, the determination that Dent’s conduct was insubordinate

was a subjective one. Accordingly, the fact that someone other than Dent’s

employer might not have viewed his conduct as insubordinate does not prove

pretext or establish a jury question as to pretext. See Connor, 761 F.2d at 1501.

Dent has not shown that Georgia Power’s proffered reasons were weak,

implausible, inconsistent, incoherent, contradictory, or false, or that discrimination

was the real reason for his termination. See Kragor, 702 F.3d at 1309; Springer,

509 F.3d at 1348.




action motivated by a discriminatory or retaliatory animus that was intended to create an adverse
employment action. See Staub v. Proctor Hosp., 562 U.S. ___, ___, 131 S. Ct. 1186, 1194
(2011).
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     The district court did not err by granting summary judgment to Georgia

Power.

     AFFIRMED.




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