                Case: 15-14324       Date Filed: 03/23/2017       Page: 1 of 16


                                                                       [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 15-14324
                               ________________________

                          D.C. Docket No. 1:14-cv-22479-MGC



RAMON GONZALEZ,

                                                                           Plaintiff-Appellant,

                                             versus

STATE OF FLORIDA DEPARTMENT OF MANAGEMENT SERVICES,
MANUEL R. MORALES, JR.,

                                                                       Defendants-Appellees.

                               ________________________

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

                                      (March 23, 2017)

Before ED CARNES, Chief Judge, FAY and PARKER, * Circuit Judges.

PER CURIAM:


       *
          Honorable Barrington D. Parker, Jr., United States Circuit Judge for the Second Circuit,
sitting by designation.
                Case: 15-14324       Date Filed: 03/23/2017       Page: 2 of 16


       In November 2010 Ramon Gonzalez, who is Cuban, began working as

maintenance supervisor for Florida’s Department of Management Services in its

Division of Real Estate Development and Maintenance.1 Facilities Manager

Norberto Fernandez (“N. Fernandez”) hired him. The two of them together were

responsible for developing work plans for the mechanical staff, reviewing

maintenance work performed at three buildings, and contracting with outside

vendors for work order supplies and services. And in his position as maintenance

supervisor, Gonzalez was also responsible for managing seven employees who

worked as maintenance mechanics and support technicians in the three buildings,

prioritizing work orders, and conducting daily inspections of operations systems.

       Viewing the evidence in the light most favorable to Gonzalez, nine months

after N. Fernandez hired Gonzalez, Deputy Bureau Chief of Regional Facilities

Daniel Eberhart told N. Fernandez that he would not have hired Gonzalez because

he “spoke with a heavy Cuban accent” and he “spoke too loud.” According to N.

Fernandez’s declaration,“there were several occasions where Mr. Eberhart made

comments about Ramon Gonzalez’s accent in a way that made it clear that he

wanted to get rid of him.” Neither N. Fernandez’s declaration nor any other part of

the record provides any information about when those comments were made or


       1
          “At summary judgment we view the facts in the light most favorable to the nonmoving
party,” taking those facts from the “evidentiary materials on file.” Crawford v. Carroll, 529 F.3d
961, 964 n.1 (11th Cir. 2008).

                                                2
              Case: 15-14324    Date Filed: 03/23/2017    Page: 3 of 16


specifically what was said by Eberhart that “made it clear” he wanted to “get rid

of” Gonzalez.

      In January 2013 Eberhart issued a memo to N. Fernandez expressing

concerns about his work performance and directing him to take immediate action

to correct the problems. The memo listed three areas in need of improvement —

communication, personnel management, and maintenance management — and

provided details of the specific problems within each category. After deciding that

N. Fernandez had not sufficiently improved by April of that year, Tom Berger,

Director of the Division of Real Estate and Maintenance, recommended that

human resources fire him based on his poor supervisory performance, hostile

demeanor, and insubordination. N. Fernandez was fired soon thereafter and, so far

as the record shows, he never filed any action contesting his firing.

      After N. Fernandez was fired, Eberhart assigned joint responsibility of the

three buildings to Gonzalez and Lissette Fernandez (“L. Fernandez”), with

Gonzalez supervising all of the maintenance tasks. Eberhart directed them to send

all work requests to him for final approval because he wanted control over the

maintenance work for budgetary reasons. In violation of that directive, Gonzalez

authorized the repair of a fence before Eberhart had given that repair work final

approval, which caused the work to be performed without the Department having

in place any way to pay for those repairs. Gonzalez also authorized payment for


                                          3
                Case: 15-14324   Date Filed: 03/23/2017   Page: 4 of 16


the repair of a light pole that should not have been paid for because the work was

unacceptable.

      Senior mechanic Joel Kyllonen and facilities manager Ralph Reynolds

emailed Eberhart in late April 2013 after visiting Gonzalez at one of the buildings

he was managing. Both Kyllonen and Reynolds described Gonzalez as having

been angry, argumentative, and loud while they were with him. Reynolds reported

that he had told Gonzalez that “his attitude was not a positive representative [sic]

of [the Department] and shouldn’t occur again.” Around that time, Eberhart had a

conference call with his supervisor, a human resources representative, and

Eberhart’s assistant, whose handwritten notes show that the discussion topics

included Gonzalez’s “poor attitude” and difficulties communicating with others,

and also state that “[s]ince [N. Fernandez]’s exit we have discovered more details

about [Gonzalez]’s performance.” They discovered “deficiencies” in Gonzalez’s

performance that N. Fernandez “did not address” while he was Gonzalez’s

supervisor. During that conference call, Eberhart also mentioned receiving

complaints from employees who directly reported to Gonzalez. According to

Eberhart, those employees said that Gonzalez berated and belittled them in front of

building tenants, vendors, and members of the public. Those were not the only

complaints about Gonzalez. L. Fernandez testified that she had received

complaints from employees, tenants, and vendors about his loud, aggressive, and


                                          4
             Case: 15-14324     Date Filed: 03/23/2017   Page: 5 of 16


intimidating manner of communication, and that he had a bad attitude and

complained about having to make necessary repairs. Evidence showed that

Eberhart knew about at least one of the tenant’s complaints.

      Gonzalez himself testified that he is a “strong, hard-voiced talking person”

and knows that he talks “loud.” He also conceded that he tends to talk louder and

faster when he is upset and that those around him could misinterpret him as

yelling.

      In a May 30, 2013 memo to the director of human resources, Division

Director Berger recommended that Gonzalez be terminated. Berger’s memo stated

that Eberhart had visited one of the three buildings and had determined that

Gonzalez lacked organization in carrying out his supervisory duties. The memo

explained that there was no routine maintenance program and that employees had

complained that Gonzalez yelled at them, berated them, and called them names. It

also mentioned Gonzalez’s failure to follow proper purchasing and payment

protocols, and it concluded by recommending that he be terminated “for poor

performance, insubordination/failure to follow instructions and conduct

unbecoming.” The information upon which Berger relied to write that memo came

from human resources, which had in turn received the information from Eberhart.

      After receiving Berger’s memo, the director of human resources decided that

dismissal was warranted, and in a letter dated June 4, 2013, he notified Gonzalez


                                         5
              Case: 15-14324     Date Filed: 03/23/2017    Page: 6 of 16


that “[w]e have determined that it is in the best interest of the Department that your

employment be terminated . . . .” The letter offered no further explanation for the

termination. Because he was in a supervisory position, Gonzalez was a “select

exempt service employee,” which is an “at will” employee who can be terminated

at any time without cause. For those select exempt service employees, the

Department “may use disciplinary actions at [its] discretion.”

                                           I.

      After obtaining a right-to-sue letter from the EEOC, Gonzalez filed a lawsuit

in Florida state court alleging national origin discrimination in violation of the

Florida Civil Rights Act of 1992, Fla. Stat. § 760.10, and Title VII of the Federal

Civil Rights Act, 42 U.S.C. § 2000e-2. The Department removed the case to

federal district court and, after discovery, filed a motion for summary judgment.

Gonzalez filed a response in opposition to that motion, attaching as support N.

Fernandez’s declaration as well as his own. The Department then filed a motion to

strike N. Fernandez’s declaration because it violated Federal Rule of Civil

Procedure 26 and to strike one paragraph of Gonzalez’s declaration as inadmissible

hearsay. The district court, in its summary judgment order, granted both parts of

the Department’s motion to strike and its motion for summary judgment. This is

Gonzalez’s appeal.




                                           6
                Case: 15-14324        Date Filed: 03/23/2017       Page: 7 of 16


                                                II.

       Gonzalez contends that the district court abused its discretion by granting the

Department’s motion to strike. We need not resolve that question because, as we

will explain, even considering both declarations in their entirety, Gonzalez has

offered no direct evidence of discrimination and has failed to offer evidence raising

a genuine issue of fact as to pretext.

                                               III.

       In relevant part, Title VII makes it unlawful to fire or take any other adverse

employment action against an employee based on that employee’s national origin.

See 42 U.S.C. § 2000e–2(a)(1).2 A plaintiff bringing a Title VII claim can prove

intentional discrimination through direct or circumstantial evidence. See Alvarez

v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). Gonzalez

contends that he should not suffer summary judgment because he has presented

direct evidence of discrimination and, alternatively, he has presented circumstantial

evidence sufficient to both make out a prima facie case and show pretext under the

framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

S. Ct. 1817 (1973), and Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 101 S. Ct. 1089 (1981).
       2
         Doing so is also unlawful under the Florida Civil Rights Act. Fla. Stat. § 760.10(1)(a).
Florida courts have held, and the parties do not dispute, that “decisions construing Title VII are
applicable when considering claims under the Florida Civil Rights Act, because the Florida act
was patterned after Title VII.” Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th
Cir. 1998). As a result, analysis of the state claim is subsumed in analysis of the federal claim.
                                                 7
              Case: 15-14324     Date Filed: 03/23/2017   Page: 8 of 16


      Gonzalez contends that Eberhart’s comments about his accent and loud

manner of talking are direct evidence of discrimination. Because Eberhart did not

make the final decision to fire Gonzalez, the first step is usually to determine

whether Eberhart’s statements about Gonzalez’s accent and loud volume can be

imputed to Berger under a “cat’s paw” theory of liability. See Stimpson v. City of

Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999) (“This [cat’s paw] theory

provides that causation may be established if the plaintiff shows that the

decisionmaker followed the biased recommendation [of a non-decisionmaker]

without independently investigating the complaint against the employee. In such a

case, the recommender is using the decisionmaker as a mere conduit, or ‘cat’s paw’

to give effect to the recommender’s discriminatory animus.”). Because it does not

matter to the result, however, we will simply assume for purposes of this appeal

that Eberhart’s comments about Gonzalez’s accent and loud voice can be imputed

to Berger under the “cat’s paw” theory of liability.

      We also conclude that Eberhart’s comments about Gonzalez’s accent and

loud manner of speaking are not direct evidence of national origin discrimination.

“Direct evidence is evidence which, if believed, proves the existence of a fact

without inference or presumption.” Scott v. Suncoast Beverage Sales, Ltd., 295

F.3d 1223, 1227 (11th Cir. 2002). “[O]nly the most blatant remarks, whose intent

could mean nothing other than to discriminate on the basis of some impermissible


                                          8
              Case: 15-14324    Date Filed: 03/23/2017    Page: 9 of 16


factor constitute direct evidence of discrimination. If the alleged statement

suggests, but does not prove, a discriminatory motive, then it is circumstantial

evidence.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004)

(citations and quotation marks omitted).

      As support for his contention that Eberhart’s comments about his accent and

loud voice are direct evidence of discriminatory motive, Gonzalez cites Akouri v.

State of Florida Department of Transportation, 408 F.3d 1338 (11th Cir. 2005).

In the Akouri decision, the plaintiff, who was born in Lebanon, testified that he had

been denied a promotion and that when he asked “shortly after” that denial why

another employee had been chosen instead, he was told: “[T]he people working in

the crew are not the same that are working in the office. There [are] no black or

Hispanic [employees] in the back. . . . [T]hey are all white and they are not going

to take orders from you, especially if you have an accent, and something like that.”

Id. at 1341, 1347–48 (quotation marks omitted) (third alteration in original). We

concluded in the Akouri decision that the explanation for why the plaintiff had

been denied the promotion was direct evidence because “[t]here is no mere

suggestion or need for inferences because the statement relates directly to the

[employer]’s decision to promote [someone else] over Akouri . . . and blatantly

states that the reason he was passed over for the promotion was his ethnicity.” Id.

at 1348.


                                           9
              Case: 15-14324     Date Filed: 03/23/2017    Page: 10 of 16


      Unlike the direct evidence in the Akouri case, Eberhart’s statements were

not directly related to Gonzalez’s termination (or Eberhart’s decision to report to

Berger about the problems with Gonzalez’s job performance). The only evidence

of when Eberhart commented about Gonzalez’s accent and loud voice is the

statement Eberhart made to N. Fernandez two years before Gonzalez’s termination.

See Scott, 295 F.3d at 1227–28 (noting that the comment “[w]e’ll burn his black

ass” was not direct evidence of discrimination because “it was made approximately

two and one-half years before the [plaintiff was terminated] and because it was not

directly related to the subject of [the plaintiff]’s termination”). As a result,

Eberhart’s comments are not direct evidence of discrimination.

                                          IV.

      Lacking any direct evidence of discrimination, Gonzalez could still have

escaped summary judgment by offering sufficient circumstantial evidence to meet

the burden-shifting framework under the McDonnell Douglas and Burdine

decisions. Under that framework the plaintiff bears the initial burden of showing a

prima facie case of discrimination. McDonnell Douglas Corp., 411 U.S. at 802, 93

S. Ct. at 1824. If the plaintiff makes that showing, the burden shifts “to the

employer to articulate some legitimate, nondiscriminatory reason for the [adverse

employment action].” Id. “[S]hould the defendant carry this burden, the plaintiff

must then have an opportunity to prove by a preponderance of the evidence that the


                                           10
             Case: 15-14324     Date Filed: 03/23/2017   Page: 11 of 16


legitimate reasons offered by the defendant were not its true reasons, but were a

pretext for discrimination.” Burdine, 450 U.S. at 253, 101 S. Ct. at 1093.

      While the parties dispute whether Gonzalez has made out a prima facie case

of discrimination, we need not decide that issue because, as we will discuss,

Gonzalez has failed to raise a genuine issue of material fact as to whether the

Department’s proffered reasons for firing him were a pretext for discrimination.

See Alvarez, 610 F.3d at 1265 (“It matters not whether Alvarez has made out a

prima facie case if she cannot create a genuine issue of material fact as to whether

[the defendant]’s proffered reasons for firing her are pretext masking

discrimination.”).

      The Department provided several legitimate nondiscriminatory reasons for

firing Gonzalez, all of which are summarized in Berger’s memo recommending

that he be terminated: He did not carry out his maintenance supervisory duties in

an organized way; there was no routine preventative maintenance program;

employees, including Kyllonen and Reynolds, had complained that Gonzalez had

yelled at them, berated them, or called them names; at least one tenant had

complained to Eberhart that Gonzalez had yelled at her and made her

uncomfortable; and Gonzalez had failed to follow proper purchasing and payment

protocols.




                                         11
             Case: 15-14324     Date Filed: 03/23/2017   Page: 12 of 16


      Because the Department articulated several legitimate nondiscriminatory

reasons for terminating Gonzalez, he had the burden of putting forward evidence

raising a genuine issue of material fact as to whether those reasons were pretextual.

See Alvarez, 610 F.3d at 1265. Gonzalez could have done so “either by offering

evidence that [the Department] more likely than not acted with a discriminatory

motive, or by showing that its proffered reasons are not credible.” Id. Because the

Department provided multiple reasons for terminating Gonzalez, he had to

“produce sufficient evidence for a reasonable factfinder to conclude that each of

[those] proffered nondiscriminatory reasons is pretextual.” Chapman v. AI

Transp., 229 F.3d 1012, 1037 (11th Cir. 2000) (en banc) (emphasis added).

      Gonzalez contends that he presented enough circumstantial evidence to

create a genuine issue of material fact that each proffered reason was pretextual.

But he didn’t. Gonzalez submitted a declaration asserting that his performance

was satisfactory, that he had never been counseled or disciplined, and that “[i]f

there were any truth to these matters [raised by the Department as supporting his

termination], they would have been brought to my attention through the

progressive discipline [policy].” And N. Fernandez, who had himself been fired

for other reasons, submitted a declaration stating that he had been satisfied with

Gonzalez’s performance and that in his opinion the Department should have

addressed the alleged problems about Gonzalez’s performance through “coaching


                                         12
               Case: 15-14324        Date Filed: 03/23/2017       Page: 13 of 16


for improvement,” and not termination. However, as we have “repeatedly and

emphatically held”:

       employers may terminate an employee for a good or bad reason
       without violating federal law. Title VII does not allow federal courts
       to second-guess nondiscriminatory business judgments, nor does it
       replace employers’ notions about fair dealing in the workplace with
       that of judges. We are not a super-personnel department assessing the
       prudence of routine employment decisions, no matter how medieval,
       high-handed, or mistaken. Put frankly, employers are free to fire their
       employees for a good reason, a bad reason, a reason based on
       erroneous facts, or for no reason at all, as long as its action is not for a
       discriminatory reason.

Flowers v. Troup Cty., Ga., Sch. Dist., 803 F.3d 1327, 1338 (11th Cir. 2015)

(quotation marks and citations omitted).

       While Gonzalez’s declaration asserts that his performance was satisfactory,

he has offered no evidence disputing the fact that: (1) employees and at least one

tenant had complained to Eberhart about Gonzalez’s communication problems;

(2) tenants and vendors had complained to L. Fernandez about his belligerent

treatment of them; (3) he did not wait for a purchase order for a fence repair before

having that work done, which caused the work to be completed before the

Department had in place a method of payment; and (4) Gonzalez had authorized

payment for the repair of a light pole that should not have been paid for because

the work was unacceptable. 3 In his deposition Gonzalez conceded that when he


       3
         While his declaration states that the initial repair of the light pole was approved by
Eberhart, Gonzalez does not dispute that the repair should not have been paid for because the
                                                13
               Case: 15-14324       Date Filed: 03/23/2017        Page: 14 of 16


gets upset he speaks more rapidly and at a louder volume, and that his doing so

could be interpreted by others as yelling. There was no evidence at all disputing

the fact that he had yelled at employees and tenants of the Department.

       The statement in N. Fernandez’s declaration that he was satisfied with

Gonzalez’s performance does not establish pretext. N. Fernandez himself was

fired because of his poor supervisory performance along with his hostile and

insubordinate demeanor. “Different supervisors may impose different standards of

behavior, and a new supervisor may decide to enforce policies that a previous

supervisor did not consider important.” Rojas v. Florida, 285 F.3d 1339, 1343

(11th Cir. 2002). Evidence that a supervisor — who was himself fired because of

his hostile demeanor and poor performance — did not find an employee’s

demeanor and performance unsatisfactory, is not sufficient to create a genuine

issue of material fact about whether non-terminated supervisors did. And there is

also evidence showing that even more problems with Gonzalez’s performance

were discovered after N. Fernandez had been fired.

       Gonzalez argues that the fact the Department gave him no formal warning or

counseling is evidence of pretext. The Department’s disciplinary policy does not

mandate counseling or formal warning before termination but instead states that


work was unacceptable, and instead asserts only that “[t]he repair work on the light pole did not
need to be redone to my knowledge” and speculates that “[i]f there were any truth to the claim
that I did something wrong, it would have been brought to my attention through the progressive
discipline [policy].” (Emphasis added).
                                                14
             Case: 15-14324     Date Filed: 03/23/2017   Page: 15 of 16


the Department “may use disciplinary actions at their discretion concerning Select

Exempt Service . . . employees,” and that “[c]ounseling may be used to help

employees recognize a mistake or deficiency. . . .” (Emphasis added). Because

counseling and formal warnings were discretionary options, the Department’s

failure to provide them does not raise a genuine issue of fact as to whether its

stated reasons for terminating Gonzalez were pretextual. See Alvarez, 610 F.3d at

1262 n.7, 1268 (concluding that the plaintiff had failed to raise a genuine issue of

material fact even though the employer had admitted that it had not followed its

progressive discipline policy, which normally provided for successive verbal and

written warnings before an employee was terminated for misconduct); see also

Morris v. City of Chillicothe, 512 F.3d 1013, 1020 (8th Cir. 2008) (“Deviance

from a progressive discipline policy can be evidence of pretext, but here, the

department’s employee manual and related documents specifically state that the

department is not bound by any number of warnings and that it can fire at-will

employees without warning if necessary. We have found such caveats in an

employee policy negate its persuasiveness in showing pretext.”).

      Gonzalez has failed to raise a genuine issue as to pretext. While he offered

evidence showing that Eberhart made some remarks about his accent and loud

manner of speaking at some point during his employment, including one comment

that was made almost two years before his termination, that evidence standing


                                          15
             Case: 15-14324     Date Filed: 03/23/2017    Page: 16 of 16


alone does not establish pretext. See Scott, 295 F.3d at 1229 (“Although a

comment unrelated to a termination decision may contribute to a circumstantial

case for pretext, it will usually not be sufficient absent some additional evidence

supporting a finding of pretext.”) (citation omitted). The district court did not err

in granting summary judgment to the Department.

      AFFIRMED.




                                          16
