                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT                           FILED
                                                                    U.S. COURT OF APPEALS
                             ________________________                 ELEVENTH CIRCUIT
                                                                         September 5, 2008
                                    No. 07-12606                       THOMAS K. KAHN
                              ________________________                        CLERK


                        D. C. Docket No. 9:06-CV-80961-DMM

VINCENT C. KNIGHT,

                                                          Plaintiff-Appellant,

                                            versus

STATE OF FLORIDA DEPARTMENT OF
TRANSPORTATION,
a.k.a. DOT,

                                                          Defendant-Appellee.

                              ________________________

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

                                   (September 5, 2008)

Before BLACK and MARCUS, Circuit Judges, and EVANS,* District Judge.

PER CURIAM:


       *
        Honorable Orinda Evans, United States District Judge for the Northern District of
Georgia, sitting by designation.
       Vincent C. Knight appeals from the district court’s grant of summary

judgment in favor of the Florida Department of Transportation (FDOT) on his

allegations of retaliation under Title VII and the Florida Civil Rights Act

(FCRA).1 Knight alleged he was terminated because he provided damaging

deposition testimony in a sexual harassment suit filed against FDOT. FDOT in

turn said it had a legitimate, non-discriminatory reason for terminating Knight:

Knight himself was sexually harassing a coworker. The district court granted

summary judgment in favor of FDOT, finding Knight had failed to establish a

prima facie case of retaliation and, alternatively, had failed to create a genuine

issue of material fact that FDOT’s proffered reason for his termination was

pretextual. We affirm.

                                    I. BACKGROUND

       Sargent Knight was an 18-year veteran of FDOT’s Motor Carrier

Compliance Office (MCCO). In May 2005, Knight provided deposition testimony

in a discrimination case brought by a coworker, Cindy Miller, against FDOT.

Knight describes his testimony against FDOT as “devastating”; in particular, he

testified in the Miller deposition that an employee used derogatory terms when


       1
        Because the FCRA is modeled after Title VII and Florida courts look to Title VII case
law when interpreting the FCRA, we address Knight’s claims identically. See Jones v. United
Space Alliance, LLC, 494 F.3d 1306, 1310 (11th Cir. 2007).

                                               2
referencing Miller in both his presence and the presence of his direct supervisor,

Lt. Terry Gartner. This directly contradicted Gartner’s testimony, because Gartner

testified he heard no such thing.

      A month or so after Knight’s testimony, Gartner informed Knight that a

coworker, Shannon Evert, had accused Knight of sexual harassment. According to

Evert’s complaint, Knight and Evert had a consensual sexual relationship in 2004.

Knight continued to pursue the relationship after it ended, until Evert asked him in

February 2005 to leave her alone. According to Evert, Knight backed off until

June 2005, when his unwelcomed advances continued. Knight admitted he and

Evert had a consensual relationship, but he insisted the relationship was at all

times consensual and never transformed into sexual harassment.

      Evert filed her complaint with Gartner. Gartner informed Knight he was

accused of sexual harassment and told him to “[h]ave a nice day.” Gartner

forwarded the complaint form, on which he wrote, “Knight is sexually harassing

Evert.”

      The Equal Employment Opportunity Office (EOO), which is within FDOT

but outside the MCCO, investigated the complaint. Michael Klump, the EOO

investigator who investigated the Miller matter, investigated Evert’s allegations.

Klump interviewed Evert, Knight, Gartner, and a friend of Evert. In addition,

                                          3
Evert provided pages from Knight’s journal in which he referred to her

romantically. Klump found Evert’s allegations credible, and found Knight’s

statements–that the relationship was consensual and Evert was sending him mixed

messages–incredible.

      Col. Graham Fountain, the director of MCCO, received the conclusions of

Klump’s investigation. Fountain decided to terminate Knight based on the failure

to report his consensual relationship with Evert (a violation of MCCO’s rules) and

his sexual harassment of Evert. Fountain admitted he was aware of Knight’s

deposition testimony in the Miller case and thought Knight’s testimony had hurt

FDOT’s case.

      Knight sued under Title VII and Florida law, alleging his termination was in

retaliation for his testimony in the Miller case. FDOT filed a motion for summary

judgment, which the district court granted. The district court found Knight had

failed to make out a prima facie case of retaliation and, in any event, had failed to

come forward with a genuine issue of material fact as to whether FDOT’s

proffered reason for his termination was pretextual. Knight appeals.

                                  II. DISCUSSION

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

Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996). Summary judgment is

                                          4
appropriate when, viewing the facts in the light most favorable to the non-moving

party, there is no genuine issue of material fact. Id.

      On appeal, Knight argues the district court erred in finding he failed to

present a prima facie case of retaliation and failed to demonstrate the proffered

reason for his termination was pretextual. To establish a prima facie case of

retaliation under Title VII, the plaintiff must show (1) a protected activity; (2) an

adverse action taken by the employer; and (3) a causal connection. Clover v. Total

Sys. Servs., Inc., 176 F.3d 1346, 1354 (11th Cir. 1999). If the employer responds

by providing a legitimate, non-discriminatory reason for the adverse action, then

the burden remains on the plaintiff to rebut the proffered reason and demonstrate it

is mere pretext. Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir 1998).

      We assume, without deciding, that Knight has successfully set forth the

prima facie case. Having thoroughly reviewed the record evidence and the

arguments in this case, however, we conclude Knight has failed to establish a

genuine issue of material fact that FDOT’s stated reason for his termination was

pretextual.

      Pretext can be shown either by directly persuading a court that

discriminatory motive more likely motivated the employer or by indirectly

demonstrating the provided reason was unworthy of credence. Sweat v. Miller

                                           5
Brewing Co., 708 F.2d 655, 656 (11th Cir. 1983). See also Harris v. Shelby

County Bd. Of Educ., 99 F.3d 1078, 1083 (11th Cir. 1996) (“The focus of the case

after the defendant has met the burden of production is on the defendant’s

subjective intent and the motivation behind the defendant’s adverse employment

actions directed at the plaintiff.”). A plaintiff must do more than criticize the

business judgment of his employer, and he cannot simply quarrel with the wisdom

of the decision. Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000).

      Moreover, the inquiry is not whether Knight actually sexually harassed

Evert. Rather, the inquiry is whether the employer had a good-faith basis for its

belief and the belief actually motivated its decision. Elrod v. Sears, Roebuck &

Co., 939 F.2d 1466, 1470 (11th Cir. 1991). In reaching an employment decision,

an employer is free to weigh the credibility of different witnesses: “When the

resulting employer’s investigation . . . produces contradictory accounts of

significant historical events, the employer can lawfully make a choice between the

conflicting versions . . . , as long as the choice is an honest choice.” EEOC v.

Total Sys. Servs., Inc., 221 F.3d 1171, 1176 (11th Cir. 2000).

      In this case, Fountain was the decisionmaker who terminated Knight. After

Evert complained, the complaint was referred to the investigators at the EOO, an

office independent of the MCCO. They investigated the case and determined

                                           6
Evert’s version was credible, whereas Knight’s version was not. Fountain,

reviewing the report upholding Evert’s claims of sexual harassment, terminated

Knight. Knight has offered no evidence either that (1) the determination by the

EOO investigators that Evert was credible was not made in good faith, or

(2) Fountain’s decision to terminate Knight based on the sexual harassment was

not his actual reason for the decision. He therefore cannot survive summary

judgment.

      Knight presents several facts he believes are sufficient to get him past

summary judgment. None of them actually address the questions relevant to the

inquiry. First, Knight argues Gartner’s “determinative language” and “fervor” to

pursue Evert’s complaint are evidence that retaliatory animus actually fueled the

decision to terminate Knight. But Gartner was not a decisionmaker; he was not

involved in either the investigation of the complaint or Fountain’s decision to

terminate Knight. Therefore, the facts Knight presents are not sufficient to survive

summary judgment.

      Second, Knight states he has evidence that Evert’s account of their

relationship is not credible. He says the evidence demonstrates Evert contacted

Knight several times and sent him mixed messages, contradicting the story she

told the EOO investigators. But this is the sort of inquiry–whether the complaint

                                         7
was genuine–expressly disclaimed by our precedent. See Elrod, 939 F.2d at 1470.

The question is whether the investigation and decision were conducted in good

faith, not whether Evert is a liar.

      Third, Knight argues the EOO’s investigation of Evert’s complaint was

handled differently from other investigations. No doubt evidence an investigation

was perfunctory or capricious in comparison to other investigations would indeed

be evidence the investigation was not conducted in good faith. In this case,

however, Knight only states the investigation of Evert’s complaint was shorter

than the Miller investigation and involved fewer witnesses. He has no evidence

suggesting his investigation should have been longer or more thorough. The mere

fact that different investigations require different treatment is not, absent further

basis for comparison, sufficient to raise a genuine issue of material fact. Without

providing further detail on how his situation should have been treated similarly to

the Miller investigation, Knight cannot survive summary judgment on this basis.

      Finally, Knight points out that Fountain–the ultimate decisionmaker in this

case–knew about Knight’s protected activity. Although mere knowledge of

protected activity by a decisionmaker can be sufficient to survive the prima facie

case, see Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997),

knowledge alone is not necessarily sufficient once the analysis moves to the

                                           8
pretext stage. Therefore, Fountain’s knowledge that Knight engaged in protected

activity is not evidence sufficient on its own to show the actual motivation for the

termination was retaliatory.

                                III. CONCLUSION

      In sum, FDOT presented with a legitimate, non-discriminatory reason for

terminating Knight (his harassment of Evert), and Knight has failed to come

forward with evidence creating a genuine issue of material fact as to whether the

termination was actually motivated by another reason or whether the investigation

was not conducted in good faith. The district court’s judgment is AFFIRMED.




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