         Case: 18-11756    Date Filed: 04/30/2020      Page: 1 of 24



                                                                         [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 18-11756
                      ________________________

                  D.C. Docket No. 1:16-cv-02538-ODE



BRAD KNOX,

                                                Plaintiff - Appellant,

versus

ROPER PUMP COMPANY,
HANSEN TECHNOLOGIES CORPORATION,
ROPER TECHNOLOGIES, INC.,

                                                Defendants - Appellees.

                      ________________________

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

                             (April 30, 2020)
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Before MARCUS, JULIE CARNES and KELLY,* Circuit Judges.

MARCUS, Circuit Judge:

       In September 2015, Brad Knox, an African-American man and quality test

technician at Roper Pump Company for fifteen years, got into a fight with his adult

daughter, Kayla Knox (“Kayla”), at their shared home. Whether father or daughter

initially escalated the domestic altercation to physical violence was disputed, but it

was undisputed that Knox struck Kayla during the fight. Kayla worked in the same

facility as Knox, but for one of Roper’s affiliated companies, Hansen Technologies

Corporation. She went to work the next day and complained to Roper’s human

resources department. Because violence against a coworker violated Roper’s

workplace violence policy, Roper suspended Knox. Shortly after his suspension,

Knox called an employee ethics hotline to complain that he believed he was being

discriminated against on account of race because white employees who had

violated the workplace violence policy had been allowed to continue working.

       Roper told Knox he could keep his job if he completed anger management

classes while on unpaid leave. But when Roper sent Knox the written agreement,

it included a release of all claims against Roper -- including, expressly, Title VII




*
 Honorable Paul J. Kelly, Jr., United States Circuit Judge for the Tenth Circuit, sitting by
designation.
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claims. Knox refused to sign the agreement with the release and asked his

employer to remove it; Roper refused and fired Knox.

      Knox sued Roper and its affiliated companies in the United States District

Court for the Northern District of Georgia for one count of retaliation and one

count of race discrimination in violation of Title VII. Following discovery, the

district court granted summary judgment to the defendants on both claims.

      It is clear from our case law that an employer may not respond to a claim of

race discrimination by conditioning continued employment on a release of claims

and firing the employee for refusing. To do so constitutes unlawful retaliation.

Here, there was enough evidence in the record, when taken in a light most

favorable to Knox, to support his claim that that’s precisely what Roper did --

adding the release as a condition of continued employment only after Knox made

his protected complaint. Accordingly, we are obliged to reverse the district court’s

grant of summary judgment to Roper on Knox’s retaliation claim and remand for

further proceedings consistent with this opinion. As for the race discrimination

claim, however, we agree with the trial court that Knox failed to proffer

comparators that were similar in all material respects. Thus, we affirm the grant of

summary judgment to Roper on Knox’s race discrimination claim.




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                                          I.

      The extensive record included depositions taken from Knox, Bettina Ginn

(the human resources plant director for Roper, to whom Kayla, Knox’s daughter,

complained), Katye Semanson (Roper’s director of human resources), Joseph

(“Joe”) Renzetti (president of Roper), Greg Anderson (vice president of human

resources for Roper Technologies, Roper’s parent company), Janet Hill (Knox’s

former attorney), Melanie Nealis (deputy general counsel for Roper Technologies),

and Michael Ingram (a designer for Roper and one of Knox’s proposed

comparators), as well as the personnel files of Knox’s proposed comparators and

other documentary evidence.

      The evidence revealed these essential facts. Roper’s violence in the

workplace policy stated that Roper “believes in maintaining a safe and effective

workplace environment for all employees” and “[a]ny employee who exhibits

violent or threatening behavior will be subject to corrective action up to and

including, termination.” On September 28, 2015, Knox got into a fight with his

adult daughter, Kayla Knox, at their shared home. Knox admitted that he slapped

Kayla across the face, but said that he did so only after she became violent with

him. He squarely denied Kayla’s written statement, which had characterized him

as the aggressor. The same day, Kayla returned to work at Roper’s facility and

reported the incident to Bettina Ginn, the human resources plant manager for


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Roper. Ginn immediately reported the incident to Katye Semanson, Roper’s

director of human resources, who in turn informed Joe Renzetti, Roper’s president,

the same day. Renzetti and Semanson decided to suspend Knox -- initially with

pay -- while Roper investigated the incident; Ginn informed Knox of the decision

on September 29.

      The next day, Knox called Roper’s Ethics and Compliance Employee

Hotline and complained that he was being treated more harshly on account of race

than two white employees (Chad Warner and Phillip Cruce) who had gotten into a

physical altercation at work, and were allowed to continue working, whereas he

was not afforded that opportunity. Semanson testified that she was made aware of

Knox’s hotline complaint within approximately 24 hours of its occurrence.

Renzetti also said that he was aware of the hotline complaint when he made all of

the employer’s decisions regarding Knox.

      Although Renzetti’s boss and others recommended that Renzetti terminate

Knox for violating the workplace violence policy, Renzetti testified that he wanted

to give Knox a chance to continue working for Roper. Accordingly, Renzetti

offered Knox three options, which he explained on an October 6 phone call

between Knox, Renzetti, and Semanson: accept termination; resign and sign a

release in order to receive a severance package; or complete an anger management

course while on unpaid leave and keep his job. Renzetti told Knox that he would


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have to sign a release to receive the severance package but did not mention signing

a release following anger management counseling.

      On October 9, Knox called Semanson to tell her that he wanted to attend

anger management classes and keep his job. He also said that he believed he was

being treated more harshly than his white counterparts. Semanson told him that he

could return to work after he received a certificate of completion of the course;

again, no mention of the release was made.

      Roper then sent Knox a Last Chance Agreement (“LCA”) dated October 9,

2015, which included a general release and stated, in relevant part:

      You acknowledge and agree that the consideration provided under this LCA
      represents valuable consideration that the Company is not obligated to provide
      you. You hereby fully, forever, irrevocably and unconditionally release, settle
      and discharge the Company from any and all manner of claims, charges,
      complaints, debts, liabilities, demands, actions, causes of action, suits, rights,
      covenants, contracts, controversies, agreements, promises, omissions,
      damages, obligations and expenses of any kind, whether known or unknown,
      which you have, had, or may have against the Company or any Company-
      sponsored employee benefit plans arising from, or relating in any way to, your
      employment relationship with the Company occurring through the date you
      sign this Agreement. Specifically included in this waiver and release are,
      among other things, any and all claims arising under Title VII of the Civil
      Rights Act, the Americans With Disabilities Act, the Family and Medical
      Leave Act, the Georgia Equal Employment for Persons with Disabilities
      Code, the Georgia Equal Pay for Equal Work Act and the Common Day of
      Rest Act, as well as any other federal, state or local statutes, and any claims
      under common law including but not limited to claims in tort or for breach of
      contract.

The LCA went on to explain that:



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      Nothing in this LCA prevents you from filing a charge or complaint with or
      from participating in an investigation or proceeding conducted by any federal,
      state or local agency charged with the enforcement of any employment laws,
      although by signing this LCA, you are waiving any right to individual relief
      based on claims asserted in such a charge or complaint.

In other words, the release would not bar him from filing an EEOC charge, but it

would prevent him from filing suit or obtaining any individual relief arising out of

the claim.

      Knox received the LCA in the mail on October 12, after he had attended the

first part of the required anger management course. On October 13, he sent

Semanson a letter prepared by his attorney, Janet Hill, explaining that he believed

he was being retaliated against for having made a hotline complaint of racial

discrimination by being asked to sign the release, which had not been previously

discussed, except with respect to the severance package.

      Knox and Semanson spoke by phone on October 14: Semanson told Knox

the company would not remove the release and that Knox had until October 19 to

sign the LCA including the release in order to keep his job. A follow-up letter

from Roper to Knox, dated October 14, said that Knox’s “off duty behavior of a

violent nature that resulted in the physical assault of a co-worker” was sufficient

reason to fire Knox. The letter also said that, in lieu of termination, Roper had

offered him the ability to retain his position should he return to work after

executing the LCA and fully satisfying its conditions. The letter told Knox that


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Roper had investigated his claim of race discrimination and found nothing to

support it.

      On October 16, Janet Hill, Knox’s attorney at the time, spoke with Melanie

Nealis, Roper’s deputy general counsel, by telephone. Hill believed that including

the release in the LCA was retaliatory. Hill testified that Nealis told her it would

have been foolish to allow Knox, after his hotline complaint, to return to work

without signing a release only thereafter to have to defend itself against a baseless

EEOC claim. Nealis also explained that Knox’s claims were baseless because

Warner and Cruce were not appropriate comparators since they were rehired out of

business necessity, and they were contrite and apologetic, whereas Knox was not.

Hill added that Nealis told her “pretty much verbatim” that “the release became an

issue because [Knox] made a claim of discrimination” and “it would be foolish to

offer him his job back and then have to defend a baseless lawsuit.”

      Nealis sharply disputed Hill’s description of the conversation. Nealis

testified that she engaged in settlement discussions with Hill regarding the

retaliatory nature of the LCA’s release. She did not recall if Hill discussed whether

Knox was initially required to sign a release along with completing the anger

management course. Nealis denied ever telling Hill that it would be “crazy” for

Roper to permit Knox to remain employed without having him sign a release. She

denied telling Hill that Knox was required to sign the release because he had


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already raised claims of race discrimination. Rather, their conversation concerned

whether the LCA was retaliatory, and she did not believe that it was. Nealis also

reminded Hill that the release allowed Knox to pursue his EEOC charge. She

claimed she told Hill that Roper was always going to require an LCA, that there

was only one LCA ever drafted, and that it was presented to Knox. She averred

that Hill had mischaracterized her statements. She added that Warner and Cruce

were inappropriate comparators because they, unlike Knox, were immediately

terminated for violent behavior, and that the incident had occurred before her time,

so she was unaware of whether those employees had ever been asked to sign

releases. Finally, according to Nealis, she reminded Hill that an LCA was not

typical; rather, it was a special offer.

       On October 19, 2015, Knox sent Semanson still another letter, also prepared

by his counsel, which said that he “remain[ed] willing to do everything Roper

ha[d] asked [him] to do under the last chance agreement, except [he was] unwilling

to sign away [his] rights under Federal law.” Knox was fired. His official

separation notice, dated October 20, 2015, listed the reason for separation as

“misconduct.” Despite being terminated, Knox completed the anger management

course.

       Joe Renzetti testified that he created and explained to Knox the three

options, and that he always intended for the LCA to contain a release. Although he


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did not recall mentioning the release during his initial conversation with Knox, he

said he preferred to handle those matters in writing and claimed he told Knox that

he was mailing Knox formal documents that Knox should read through before

choosing how to proceed. Renzetti did not know when the LCA was created or

who drafted it, and the first time he saw the LCA was on October 9. Renzetti

claimed that it was his decision to include the release in the LCA, and that he gave

directions to Semanson and to Roper’s attorneys about what to include in the LCA,

but he refused to disclose privileged communications with counsel. Renzetti

believed that he had offered LCAs or similar agreements in the past to other Roper

employees and to employees of his prior companies. Roper could not identity who

they were. Renzetti said, however, it was a normal business practice to include a

release in an LCA.

      The parties cross-moved for summary judgment. Knox also moved in

limine to compel discovery of communications about the drafting of the LCA --

communications Roper claimed were attorney-client privileged. All of the motions

were referred to a magistrate judge, who recommended granting summary

judgment to Roper on Knox’s race discrimination claim because his comparators

were not similarly situated. However, he recommended denying summary

judgment to the employer on the retaliation claim. The magistrate judge explained

that a jury could reasonably conclude that Roper added the release only after Knox


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complained of discrimination, that Knox would not have been fired had he signed

the release, and that the proffered reason for the firing (violating the workplace

violence policy) was a pretext for unlawful retaliation. The magistrate judge also

recommended denying Knox’s motion in limine, concluding that the

communications regarding drafting the LCA were protected by attorney-client

privilege.

      Upon review, the district court denied the motion in limine and granted

summary judgment to the defendants on the race discrimination claim because

Knox’s proposed comparators were not sufficiently similar. But, the district court

rejected the Report and Recommendation and granted summary judgment to the

defendants on the retaliation claim. The court reasoned that since Knox was

subject to termination for violating the workplace violence policy, his complaint of

race discrimination could not have been the but-for cause of his termination.

      Knox timely appealed to this Court.

                                          II.

      We review a district court’s grant of summary judgment de novo. Little v.

United Techs., Carrier Transicold Div., 103 F.3d 956, 959 (11th Cir. 1997);

Jameson v. Arrow Co., 75 F.3d 1528, 1531 (11th Cir. 1996). Summary judgment

is appropriate only where there is no genuine issue of material fact. Fed. R. Civ. P.

56(a). We also draw all reasonable inferences in the light most favorable to the


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nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per

curiam). Where the record taken as a whole, and drawn in the light most favorable

to the nonmoving party, could not lead a rational trier of fact to find for the

nonmoving party, there is no genuine issue for trial. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).

      Moreover, we review evidentiary rulings, such as a ruling on a motion in

limine, only for abuse of discretion. Chrysler Int’l Corp. v. Chemaly, 280 F.3d

1358, 1362 (11th Cir. 2002). However, “[t]o the extent that the appeals involve

mixed questions of law and fact, regarding the applicability of the attorney-client

privilege to particular communications that the plaintiffs wish to discover, our

review is plenary.” Cox v. Adm’r U.S. Steel & Carnegie, 17 F.3d 1386, 1413 (11th

Cir. 1994).

                                          A.

      A plaintiff alleging retaliation in violation of Title VII “must begin by

establishing a prima facie case; the plaintiff must show that (1) she engaged in

statutorily protected activity, (2) an adverse employment action occurred, and (3)

the adverse action was causally related to the plaintiff’s protected activities.”

Little, 103 F.3d at 959. “These three elements create a presumption that the

adverse action was the product of an intent to retaliate.” Bryant v. Jones, 575 F.3d

1281, 1308 (11th Cir. 2009).


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      Once the plaintiff has established a presumption of retaliation, the burden

shifts to the defendant to rebut the presumption. Id. That is, “the defendant

employer must articulate a legitimate, [nonretaliatory] reason for the challenged

employment action.” Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir.

2000) (en banc). Notably, “the employer’s burden is merely one of production; it

‘need not persuade the court that it was actually motivated by the proffered

reasons. It is sufficient if the defendant’s evidence raises a genuine issue of fact as

to whether it [retaliated] against the plaintiff.’” Id. (quoting Combs v. Plantation

Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997)).

      If the employer has met its burden of production and has proffered a

legitimate, nonretaliatory reason for the adverse action, the burden shifts back to

the plaintiff. The presumption of retaliation is eliminated and the plaintiff then

must come forward with evidence allowing a reasonable factfinder to conclude that

the proffered reason was pretextual. Chapman, 229 F.3d at 1024. The plaintiff

must “come forward with evidence, including the previously produced evidence

establishing the prima facie case, sufficient to permit a reasonable factfinder to

conclude that the reasons given by the employer were not the real reasons for the

adverse employment decision.” Id. (quoting Combs, 106 F.3d at 1528). In

determining whether a proffered reason is unworthy of credence, a court will

consider “weaknesses, implausibilities, inconsistencies, incoherencies, or


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contradictions in the employer’s proffered legitimate reasons for its action.”

Combs, 106 F.3d at 1538 (quotation omitted).

       It is undisputed that Knox’s complaint of racial discrimination was a

protected activity and that his termination was an adverse employment action. The

only question is whether Knox has offered enough evidence from which a

reasonable juror could conclude that his protected activity was causally linked to

his termination. In University of Texas Southwestern Medical Center v. Nassar,

the Supreme Court held that “a plaintiff making a retaliation claim under [Title

VII] must establish that his or her protected activity was a but-for cause of the

alleged adverse action by the employer.” 570 U.S. 338, 362 (2013). At summary

judgment, then, Knox was required to come forward with enough evidence from

which a reasonable juror could find that his complaint of race discrimination -- his

protected activity -- was “a but-for cause” of his termination. See id. We think he

has.

       Knox has offered evidence, if credited, from which a reasonable factfinder

could conclude that Roper added the release of claims to the LCA because Knox

complained about race discrimination, that Knox would have signed the LCA if the

LCA did not include the release, and that Knox would not have been fired had he

signed the LCA. It is uncontested that a release was mentioned in the initial

conversation between Knox, Semanson, and Renzetti only as to the severance


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package. Moreover, Knox’s counsel, Janet Hill, unambiguously testified that

Roper’s counsel told her “pretty much verbatim” that “the release became an issue

because [Knox] made a claim of discrimination,” adding that “it would be foolish

to offer him his job back and then have to defend a baseless lawsuit.” Although

Roper’s counsel has disputed Hill’s description of her comments, we are required

to resolve that factual dispute in favor of Knox at this stage in the proceeding.

What’s more, Knox testified that he would have signed the LCA had Roper

removed the release as he requested, and, indeed, he completed the anger

management classes on his own. Taking these facts in the light most favorable to

Knox, a reasonable juror could find that Knox would not have been fired had he

not complained of race discrimination.

      Our case law confirms that a plaintiff could establish a causal connection

between the protected activity and termination when an employer responds to an

employee’s discrimination complaint by conditioning the employee’s continued

employment on a release of claims and then fires the employee for rejecting the

release. We affirmed this principle in Wright v. Southland Corp., 187 F.3d 1287

(11th Cir. 1999), then in Goldsmith v. Bagby Elevator Co., 513 F.3d 1261 (11th

Cir. 2008), and again most recently in Chapter 7 Trustee v. Gate Gourmet, Inc.,

683 F.3d 1249 (11th Cir. 2012). In Wright, the employee filed an EEOC charge

and an HR specialist of his employer asked him whether he was going to drop the


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complaint, told him he would “regret it” if he didn’t, then recommended his firing

a month later. Wright, 187 F.3d at 1305. Although the employer offered non-

retaliatory reasons for his firing, a panel of this Court concluded that under those

facts, a jury could reasonably find that he was fired in retaliation for filing an

EEOC complaint. Id. at 1306.

      In Goldsmith, the employee filed an EEOC race discrimination charge, his

employer thereafter asked him to sign an arbitration agreement that would cover all

employment-related claims -- past, pending, and future -- and fired him for

refusing to sign it after the employer refused to exclude from its application his

pending EEOC charge. Goldsmith, 513 F.3d at 1271–72. We affirmed a jury’s

retaliation verdict in favor of the employee, observing that “immediate termination

for his refusal to sign the agreement established a causal relation between his

protected activity . . . and his termination.” Id. at 1278. Although the Court in

Goldsmith applied a pre-Nassar standard that the protected activity and adverse

action were not “wholly unrelated,” the Court also said that “Goldsmith was

terminated immediately after and because he refused to sign an agreement that

would have applied to his pending charge.” Id.

      Finally, in Gate Gourmet, an employee filed an EEOC charge of pregnancy

discrimination. Gate Gourmet, 683 F.3d at 1252. Under company policy, the

employer would have offered her a light-duty position, but upon learning of the


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charge, conditioned the offer on the employee dropping the EEOC charge. Id. at

1253. Again, we noted that the employer “would have [offered her a light-duty

position] but for the fact that she filed an EEOC charge.” Id. at 1260 (emphasis

added). A panel of this Court concluded that there was a “reasonable inference”

that “the statutorily protected filing of and refusal to settle the EEOC charge

caused [her employer] to deny [her] a light-duty position,” which constituted

retaliation. Id.

      In this case, the district court concluded that inasmuch as Knox was subject

to termination prior to internally raising race discrimination, and because Renzetti

testified that he always contemplated including the release in the LCA, Knox’s

complaint could not have been the but-for cause of his termination. No one has

disputed that Knox was subject to termination for violating the workplace violence

policy. The question, however, is not whether Roper could have fired Knox based

on his violation of company policy, but rather whether Roper would have fired

Knox in the absence of Knox’s protected activity. If Roper would not have

included the release but for Knox’s complaint, and if Knox wouldn’t have been

fired but for his refusal to sign the release -- difficult evidentiary judgments that a

jury must make after assessing the credibility of the witnesses -- then Roper would

have unlawfully retaliated.




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      The record evidence raises a genuine issue of material fact whether Knox

would have been fired had he not complained. For starters, neither Renzetti nor

Semanson dispute Knox’s claim that a release was mentioned in the initial

conversation, but only in relation to the severance package. Moreover, Hill’s

testimony and contemporaneous emails to Nealis suggest that the company decided

to add the release because Knox had complained. Although there is a substantial

body of evidence cutting in the other direction, we cannot resolve material issues

of disputed fact on summary judgment. Viewing the record in the light most

favorable to Knox, a reasonable juror could find that had Knox not complained

about race discrimination, Roper would not have added the release to the LCA, and

Knox would have signed the LCA and kept his job. Accordingly, we reverse the

grant of summary judgment in favor of defendants on Knox’s retaliation claim and

remand the matter for further proceedings.

                                         B.

      A Title VII claim for race discrimination similarly proceeds under the

burden-shifting framework, but Knox’s race discrimination claim fares less well in

the inquiry. A Title VII plaintiff claiming race discrimination may meet his prima

facie burden by offering a so-called “comparator” -- a similarly situated individual

outside of the protected class who was treated differently than the plaintiff. See

Lewis v. City of Union City, 918 F.3d 1213, 1217 (11th Cir. 2019) (en banc). This


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Court, sitting en banc, recently clarified that the comparator must be “similarly

situated in all material respects.” Id. at 1218.

      The comparators offered by Knox are not similarly situated in all material

respects. Knox points to three individuals, two of whom were involved in a violent

altercation with each other. Knox specifically claims that Michael Ingram, a white

Roper employee, was not disciplined after a domestic violence incident with

Ingram’s wife, and that Chad Warner and Phillip Cruce, also white Roper

employees, got into a violent altercation at work and were permitted to continue

working with pay while they attended anger management classes. The problem is

that neither Ingram nor Warner and Cruce are similarly situated in all material

respects.

      Michael Ingram, a white male and designer for Roper, testified in a

deposition that, in 2011, while employed by Roper, he was arrested and charged

following a fight with his former wife. He said he was intoxicated, fell while

attempting to carry his wife out of the house, and then grabbed her neck as

leverage to get back to his feet. Notably, his ex-wife was not and had never been

an employee of Roper or any other Roper Technologies subsidiary. Ingram said

that although he attended anger management courses in order to get the charges

dropped, those courses were not required by Roper, he was not required to sign an

LCA as a result of the incident, and he suffered no other work-related


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consequences. Plainly, Ingram was not similarly situated in all material respects:

although he was involved in a domestic violence incident outside work, the

altercation did not involve one of Roper’s employees.

      Nor were Warner and Cruce similarly situated in all material respects, but

for different reasons. Warner and Cruce were involved in a fight at work. Warner

slapped Cruce, Cruce threw a punch, and the fight proceeded to the floor where it

was broken up. Warner and Cruce violated Roper’s workplace violence policy.

Both men were immediately terminated. Neither was offered an LCA initially.

Weeks after their termination, Warner and Cruce were rehired out of business

necessity and were permitted to work while attending anger management courses.

The facts of their immediate termination and subsequent rehiring out of necessity

undermine Knox’s claim both that they had been treated less harshly -- indeed,

they were both immediately fired -- and that they were similarly situated in all

material respects.

      Moreover, the incidents involving Ingram and Warner and Cruce all

occurred under different supervisors. The supervisors during those incidents were

George Mathis and Richard Milsap, while the supervisors at the time of Knox’s

disciplinary action were Renzetti and Semanson. As we have explained,

“differences in treatment by different supervisors or decision makers can seldom

be the basis for a viable claim of discrimination.” Silvera v. Orange Cty. Sch. Bd.,


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244 F.3d 1253, 1261 n.5 (11th Cir. 2001). This is because “[d]ifferent supervisors

may have different management styles that -- while not determinative -- could

account for the disparate disciplinary treatment that employees experience.” Jones

v. Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1312 n.7 (11th Cir.), superseded

in part, 151 F.3d 1321 (11th Cir. 1998). While not dispositive, the fact that

different supervisors were involved is still another meaningful distinction.

      The district court did not err in granting summary judgment on this claim

because Knox’s proffered comparators were not similarly situated in all material

respects.

                                         C.

      Knox has raised one final issue: whether he is entitled to the discovery of

certain communications about which Roper has claimed attorney-client privilege;

and, if not, whether he is otherwise entitled to exclude Renzetti’s testimony that

Renzetti was the decision maker, that Renzetti decided to include the release in the

LCA, and that Renzetti always intended to include the release in the LCA.

      Knox argues that the trial court abused its discretion in denying his motion

in limine and erred in finding that Roper had not waived its attorney-client

privilege as to the drafting of the LCA. Knox claims that the record supports the

inference that either Nealis (Roper’s in-house counsel) or Bob Cameron (Roper’s

outside counsel) were the true decision makers -- not Renzetti -- because Nealis


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instructed Cameron to draft the LCA and because Nealis said the release “became

an issue” because of Knox’s complaint. Therefore, the defendants should not have

been permitted to use Renzetti’s testimony offensively. According to Knox, once

Renzetti put his own motivation at issue, he waived the attorney-client privilege.

We remain unpersuaded.

      It is undisputed that the attorney-client privilege protects disclosures made

by a client to his attorney, in confidence, for the purpose of securing legal advice

or assistance. Cox, 17 F.3d at 1414. The attorney-client privilege “belongs solely

to the client,” who may waive it either expressly or by implication. Id. at 1417

(citation omitted). Under the doctrine of waiver by implication, “[a] defendant

may not use the privilege to prejudice his opponent’s case or to disclose some

selected communications for self-serving purposes.” Id. (alteration in original)

(citation omitted). “[T]he doctrine of waiver by implication reflects the position

that the attorney-client privilege ‘was intended as a shield, not a sword.’” Id.

(quoting GAB Bus. Servs., Inc. v. Syndicate 627, 809 F.2d 755, 762 (11th Cir.

1987)). Thus, a party waives the attorney-client privilege when that party places

privileged information in issue “through some affirmative act for his own benefit,

and to allow the privilege to protect against disclosure of such information would

be manifestly unfair to the opposing party.” Cox, 17 F.3d at 1417 (citation

omitted).


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       The district court did not err in finding that the defendants had not waived

attorney-client privilege here. Most importantly, the defendants did not assert an

advice-of-counsel defense. The fact that the communications might be helpful to

Knox’s claim does not in itself waive the privilege. Renzetti testified that he was

the decision maker and that he wanted to include the release and, generally, that he

told the lawyers what to do. Contrary to Knox’s argument, this constitutes record

evidence that Renzetti was the decision maker -- and it is undisputed that Renzetti

crafted and presented three options to Knox -- though of course the jury would be

entitled to assess Renzetti’s credibility for itself. Renzetti did not reveal the

substance of his communications with his counsel. His testimony does not

constitute an offensive, selective waiver of privilege that entitles Knox to discover

the privileged material.

                                              ***

       Accordingly, we affirm in part and reverse in part the judgment of the

district court: we affirm the entry of summary judgment to Roper on Knox’s race

discrimination claim and the denial of Knox’s motion in limine; we reverse on

Knox’s retaliation claim. 1 Knox has presented sufficient evidence to take his

retaliation claim to a jury.



1
 As for Plaintiff’s Motion for Partial Summary Judgment regarding the defendants’ affirmative
defenses, which the district court denied as moot in light of its grant of summary judgment to the
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       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




defendants on both counts, we leave it to the district court to consider that motion on the merits
in the first instance.
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