                                                 NOT PRECEDENTIAL



         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
                    ________

                        No. 13-2593
                        _________

                      ERIC MOTTO,
                                         Appellant

                             v.

             WAL-MART STORES EAST, LP
                    ________

       On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
                 (D.C. No. 5-11-cv-02357)

            District Judge: Mary A. McLaughlin
                           _______

         Submitted Under Third Circuit LAR 34.1(a)
                      April 7, 2014

Before: HARDIMAN, SLOVITER, and BARRY, Circuit Judges

                   (Filed: April 7, 2014 )
                     ______________

                       OPINION
                     _______________
Sloviter, Circuit Judge.

       Eric Motto appeals the District Court’s dismissal on summary judgment of his

claim that Wal-Mart Stores East, LP, fired him in retaliation for making protected

complaints about discrimination and sexual harassment in the workplace, in violation of

42 U.S.C. § 1981. The District Court held that Motto did not establish a prima facie case

of retaliation because he did not show a causal connection between his complaints and his

termination. It also found that even if he could make a prima facie case, he did not

present evidence from which a reasonable jury could conclude that Wal-Mart’s stated

non-discriminatory reason for firing Motto, that he threatened another store employee

with violence, was pretextual. Motto argues that the short time period of eleven days

between his sexual harassment complaint and his termination is sufficient to establish

causation. He also argues that disputes as to material facts exist that preclude summary

judgment. We will affirm the judgment of the District Court. 1

                                           I.

       Because we write primarily for the benefit of the parties, and because Motto only

appeals his retaliation claim, we will recount only the facts essential to that claim. Motto,

who self-identifies as part-Caucasian and part-African American, was employed as an

assembler at a Wal-Mart retail store in Temple, Pennsylvania. In this position, he

assembled merchandise, answered customer questions, and sometimes assisted customers

by carrying merchandise out to their cars. Of relevance to the issues in this case is Wal-


1
  The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. This court has
jurisdiction over the final order of the District Court pursuant to 28 U.S.C. § 1291.
                                                2
Mart’s Corporate Policy PD-48 (the “Workplace Violence Policy”) which states that

“threats of violence” is unacceptable and can lead to termination from the company.

       In February 2008, Motto requested a change in his shift schedule so that he could

rehearse with his band. Unknown to him, the change was not entered in the store’s

system, but each time the issue arose, Motto was given the time requested. In October

2008, Motto was scheduled to work late because the store was busy, and Motto was late

for band rehearsals. As a result, he was released from the band. At a meeting in January

2009 with the new store manager, Robin Olshenske, Motto learned that his earlier

scheduling request had not been entered into the store’s system. In contrast, the request

of a scheduling change by a Caucasian employee had been entered. Two days later,

Motto was informed by Olshenske that his schedule request was entered in the system.

Motto filed complaints with state and federal agencies, including the charge that Wal-

Mart had engaged in impermissible race discrimination by failing to formally adjust his

work schedule between April 2008 and January 2009. Neither agency acted affirmatively

on Motto’s complaints.

       Over a period of months in the summer and fall of 2011, Motto engaged in a

sexual relationship with the manager of the Temple Wal-Mart’s pharmacy department,

Anita Marburger. At the time, Motto was living with another employee of the store,

Bonita Campbell. Motto alleges that Marburger often groped him at work, advances

which he resisted. On October 13, 2011, Marburger and Motto had a confrontation in

which Marburger ended the relationship. Motto alleges that as he walked away,

Marburger screamed at him and hit him in the back. There was no confirming evidence

                                             3
introduced. On October 20, 2011, Marburger told Campbell about her relationship with

Motto. Campbell confronted Motto with this information, visibly upset and crying.

Motto then confronted Marburger about the disclosure in the employee locker room. The

parties disagree as to what happened next.

      Motto contends that he simply “told [Marburger] loudly, you need to stop.” Three

other Wal-Mart employees, Alex Cabrera, Linda Balthaser, and Mark DeMiere,

witnessed the confrontation in the locker room and, at Wal-Mart’s request, wrote

statements describing the incident. Cabrera wrote that Motto pointed at Marburger and

said “I am going to get you.” App. at 162a. Balthaser wrote that Motto said “I am going

to get you” and “this is not over.” App. at 160a. DeMiere, who is assistant manager of

the store, wrote that he witnessed Motto “making threatening comments” and say that “he

would get her back.” App. at 156a. To defuse the situation, DeMiere pulled Motto into

the office of store manager Daniel Hutton. At that time, Motto asked to call the police

and informed Hutton that Marburger had been sexually harassing him at work. Officer

Scott Geisler arrived at the store and spoke with Motto in the presence of Hutton and

DeMiere. Geisler’s police report did not mention the confrontation, or whether Motto

made any threatening comments to Marburger.

      Hutton investigated the confrontation and reviewed the statements of Cabrera,

Balthaser, and DeMiere. He determined that Motto had made statements that constituted

threats of physical harm in violation of Wal-Mart Corporate Policy PD-48 (the

“Workplace Violence Policy”). On November 1, 2011, Hutton fired Motto for violating



                                             4
the policy. On the same day, he fired Marburger for the October 13, 2011, incident in

which she hit Motto.

                                          II.

       Motto filed suit in the District Court, originally claiming that he was

discriminated against on account of his race in violation of Title VII of the Civil Rights

Act of 1964, the Pennsylvania Human Relations Act, and 42 U.S.C. §1981. Motto

referred to his 2009 performance evaluation which he claims Randy Laing, his

supervisor, told him was excellent, but which was written up as “meets expectations.”

Also, included was the allegation that a co-worker used a racially offensive word in his

presence. 2 Motto filed an amended complaint shifting his claim to termination in

retaliation for lodging complaints of discrimination with Wal-Mart and government

authorities. Wal-Mart moved for summary judgment.

       The District Court scrupulously reviewed the evidence presented by both parties.

Wal-Mart claimed that Motto was terminated as a result of the incident on October 20,

2011, and in accordance with store policy. The District Court agreed.

               “At oral argument, Motto conceded that Wal-Mart’s failure
               to change his shift schedule in its computer system was not a
               sufficiently adverse employment action to underlie a claim
               of employment discrimination, and it is, therefore, no longer
               before the Court.”

App. at 12a.



2
 Motto did not contest Wal-Mart’s answer that a supervisor told him that he need not
work with that worker, and the co-worker was fired shortly thereafter.

                                                5
       The District Court also concluded that the other evidence of possible

discrimination bore no relationship to the circumstances of Motto’s termination in

November 2011 because “[a]ll of [those] events took place before Hutton, the person who

decided to fire Motto, became store manager and years before that decision was made.”

Id. at 15a. We therefore confine our focus on that decision, which is the basis for

Motto’s amended complaint. Motto limits his retaliation claim on appeal of the District

Court’s denial of his summary judgment motion to the altercation with Marburger.

                                           III.

       We exercise plenary review over a grant of summary judgment. See Anderson v.

Wachovia Mortg. Corp., 621 F.3d 261, 267 (3d Cir. 2010). In our review, we apply the

same standard a district court should use. See Brown v. Kaz, Inc., 581 F.3d 175, 179 (3d

Cir. 2009); Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). Summary judgment

should only be granted when the record shows that there is no genuine issue as to any

material fact, and we must construe the evidence in favor of the non-movant. See

Anderson, 621 F.3d at 267 (citing id. at 762 n.1).

                                           IV.

       Claims under 42 U.S.C. § 1981 are generally evaluated under the McDonnell

Douglas burden-shifting framework. See Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410,

415 (3d Cir. 1999); see also Anderson, 621 F.3d at 268. Under this framework, the

plaintiff must first establish a prima facie case of retaliation, which requires showing that:

1) s/he engaged in protected activity; 2) the employer took an adverse employment action

against him or her; and 3) there was a causal connection between the protected activity

                                              6
and the adverse employment action. See Moore v. City of Phila., 461 F.3d 331, 340-41

(3d Cir. 2006) (citing Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995)). If the

plaintiff establishes a prima facie case, then the burden shifts to the employer to articulate

a legitimate, non-discriminatory, reason for the adverse employment action. See Jones,

198 F.3d at 410. If the employer can articulate such a reason, the burden shifts back to

the plaintiff to present evidence to show that the employer’s stated reason is pretextual.

Id.

       Motto argues that he established a prima facie case for retaliation, based on the

facts that: 1) he was engaged in a protected activity when he complained to Hutton about

Marburger’s sexual harassment; 2) he was terminated which is an adverse employment

action; and 3) only eleven days elapsed between the complaint and the termination,

showing causation.

       It is well-established that activity short of a formal letter of complaint to the

EEOC, such as “‘making complaints to management,’” can constitute protected conduct.

Barber v. CSX Distribution Servs., 68 F.3d 694, 702 (3d Cir. 1995) (quoting Sumner v.

United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990)). Motto’s October 20th,

2011, complaint to Hutton, the store manager, about Marburger’s sexual harassment was

therefore protected activity. Moreover, it is indisputable that Motto’s termination was an

adverse employment action. See Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 749

(1998). Therefore, the only element in dispute is whether there exists a causal connection

between Motto’s complaint and his termination.



                                              7
       The crux of Motto’s causation argument on this appeal is that the short time

between his complaint about sexual harassment and his discharge, eleven days, is

sufficient by itself to show a causal link. 3 We do not agree. Taken in its full context, the

timing of events in this case is not “‘unusually suggestive of retaliatory motive.’” Shaner

v. Synthes, 204 F.3d 494, 505 (3d Cir. 2000) (quoting Krouse v. Am. Sterilizer Co., 126

F.3d 494, 503 (3d Cir. 1997)). Motto only complained to Hutton about Marburger’s

sexual harassment in the aftermath of the October 20, 2011, incident in the employee

locker room, a confrontation that required management to intervene. The timing was

dictated by how long it took Hutton to properly investigate the situation and reach a

decision, and so we do not find the eleven-day period unusually suggestive of retaliation.

In situations where the time between the protected activity and the retaliation does not,

standing alone, support a finding of causation, there is usually evidence of antagonism or

retaliatory animus in the intervening time. See Krouse, 126 F.3d at 503-4. No such

evidence is present here, nor is there any evidence beyond timing to suggest a causal

connection between Motto’s complaint of sexual harassment and his termination.

Without such evidence, Motto cannot establish a prima facie case of retaliation.



3
  Both parties raise the issue of the relevance of the Supreme Court’s decision in Univ. of
Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517 (2013), which held that a “but-for”
causation standard applies to retaliation claims under Title VII. While it is generally the
practice of this court to apply the same standard for retaliation claims under Title VII as
to claims under 42 U.S.C. § 1981, see, e.g., Jones, 198 F.3d at 410, we need not decide
the question now because we find that Motto cannot make the required showing in any
case.


                                              8
       Motto argues that there exist material issues of fact that preclude summary

judgment. He argues that there is a genuine issue of material fact as to whether Motto’s

comment that “he would get [Marburger] back” was even a threat. Appellant’s Br. at 20.

He also contends that DeMiere’s statements to Officer Geisler were inconsistent with his

written statement to Hutton, and suggests that “DeMiere may have therefore authored a

false, conflicting, and contradictory statement regarding [Motto’s] conduct . . . .”

Appellant’s Br. at 21.

       The facts relating to what Motto actually said in the locker room, although they

are indeed in dispute, are not material. Motto’s argument misunderstands the nature of

our inquiry. Our task is not to determine whether a reasonable jury could conclude that

Motto’s statements were not threats of violence and therefore Hutton’s decision to

terminate Motto was an incorrect application of Wal-Mart’s Workplace Violence Policy.

Instead, our task is to determine if the evidence can reasonably support an inference that

Motto’s termination was caused by his engaging in protected activity.

       The record is clear that Cabrera, Balthaser, and DeMiere submitted statements to

Hutton, alleging that Motto had shouted “I am going to get you” and “this is not over.”

Even if there is dispute as to the details of what Motto shouted, there is no dispute that he

did shout at her and that the statements to that effect were submitted to Hutton who

reviewed them. The District Court concluded that the two-year period between Motto’s

complaints to the agencies and his termination and the seven-month period between

Motto’s initiation of the present suit and his termination were too long to raise an

inference of causation on their own. We agree. And given the content of those

                                              9
statements, a reasonable jury could not conclude that Hutton fired Motto for any reason

other than because of what the three witnesses represented that Motto shouted during his

altercation with Marburger.

       Even if Motto made a prima facie case, we note that the disputed facts are not

material to the pretext issue. “To discredit the employer’s proffered reason . . . the

plaintiff cannot simply show that the employer’s decision was wrong or mistaken, since

the factual dispute at issue is whether discriminatory animus motivated the employer, not

whether the employer is wise, shrewd, prudent, or competent.” Perskie, 32 F.3d at 765

(citing Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 531, 533 (3d Cir.

1992)). It does not matter what a jury might conclude, based on evaluating the credibility

of witnesses, that Motto actually said in the locker room. The only question is whether

Hutton’s stated reason for firing Motto was pretext. The material evidence is the

statements he reviewed to make his decision. The content of these statements is not in

dispute and therefore does not preclude summary judgment.

                                           V.

       For the foregoing reasons, we hereby affirm the judgment of the District Court

dismissing Motto’s retaliation claim against Wal-Mart.




                                             10
