           Case: 11-14283   Date Filed: 09/11/2012   Page: 1 of 10

                                                          [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 11-14283
                         Non-Argument Calendar
                       ________________________

                    D.C. Docket No. 1:10-cv-22741-UU



WENDELL BECKLES,
individually,

                                                      Plaintiff-Appellant,

                                   versus

FEDERAL EXPRESS CORPORATION,

                                                      Claimant-Appellee.

                      ________________________

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

                            (September 11, 2012)

Before MARCUS, FAY and ANDERSON, Circuit Judges.

PER CURIAM:
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         Wendell Beckles, a black male, appeals the district court’s grant of defendant

Federal Express Corporation’s (“FedEx”) motion for summary judgment as to

Beckles’s complaint alleging race discrimination, raised pursuant to Title VII of the

Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., and 42 U.S.C. §

1981. Beckles, a former Managing Director for FedEx Air Ground and Freight

Services (“AGFS”) South, asserts that the district court improperly granted summary

judgment on his Title VII and § 1981 race discrimination claims because: (1) he

established a prima facie case of discrimination by showing that white FedEx

Managing Directors Jackie Nichols and Flynn Wallace were valid comparators; (2)

the district court abused its discretion when it excluded past racial comments made

by FedEx Senior Vice President Michael Pigors because they showed that FedEx’s

legitimate, nondiscriminatory reason for terminating him -- that he failed to detect and

possibly knew about mileage reimbursement fraud perpetrated by two of his

subordinates -- was a pretext for race discrimination; and (3) even without Pigors’s

past comments, he established that FedEx’s nondiscriminatory reason for his

termination was pretextual. After thorough review, we affirm.1




         1
             Nevertheless, we GRANT Beckles's motion for permission to file an out-of-time reply
brief.

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

Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005). We view all evidence,

and draw all reasonable inferences, in favor of the non-moving party. Id. We review

the district court’s evidentiary decisions for abuse of discretion. Chapman v. AI

Transp., 229 F.3d 1012, 1023 (11th Cir. 2000).

      Title VII prohibits an employer from discharging an employee, or otherwise

discriminating against him with respect to his employment, on the basis of race. See

42 U.S.C. § 2000e-2(a)(1). Section 1981 provides that “[a]ll persons . . . shall have

the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.”

42 U.S.C. § 1981(a). Furthermore, the elements of a race discrimination claim under

§ 1981 are the same as Title VII disparate treatment claims in the employment

context. Shields v. Fort James Corp., 305 F.3d 1280, 1282 (11th Cir. 2002).

      In reviewing discrimination claims supported by circumstantial evidence,

courts may use the three-step burden-shifting framework established in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). First, the plaintiff must make

out a prima facie case of employment discrimination. Vessels, 408 F.3d at 767.

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

nondiscriminatory reason for its employment action. Id. at 767-68. Third, the

plaintiff must then show that the employer’s reason was false and a pretext for race

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discrimination.   Id. at 768.     While district courts may analyze employment

discrimination claims under the McDonnell Douglas framework, a plaintiff need not

establish the McDonnell Douglas elements in order to survive summary judgment.

Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). The plaintiff

will survive summary judgment where he presents “a convincing mosaic of

circumstantial evidence that would allow a jury to infer intentional discrimination by

the decisionmaker.” Id. (quotations omitted).

      In order to establish a prima facie case of discriminatory discharge, the plaintiff

must show that he (1) was a member of a protected class, (2) was qualified for the job,

(3) suffered an adverse employment action, and (4) was discharged for misconduct

that was nearly identical to that engaged in by employees outside of his protected

class who were not discharged. Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d

1181, 1185 (11th Cir. 1984). In addressing whether comparator employees were

similarly situated to the plaintiff, we consider whether the comparators were involved

in, or accused of, the same or similar conduct and disciplined differently. Maniccia

v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). The quality and quantity of the

misconduct must be nearly identical in order to prevent courts from second-guessing

reasonable employer decisions, “and confusing apples with oranges.” Id.




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      Here, the district court did not err when it determined that Beckles failed to

establish a prima facie case of discriminatory termination because he did not establish

valid comparators. As for Nichols, Beckles did not establish that the quantity or

quality of Beckles’s misconduct was nearly identical to Nichols’s misconduct.

Reggie Owens, Vice-President (“VP”) of AGFS South, said that he terminated

Beckles for his “absolute failure to be responsible with the finances of the company”

by allowing gross fraud to happen in his chain-of-command. Beckles’s subordinates

perpetrated approximately $180,000 in mileage reimbursement fraud, while under

Nichols FedEx was defrauded of only $18,378 (and it is not even clear whether it was

committed by Nichols’s “subordinates”). Indeed, when asked why he did not also

terminate Nichols, Owens said that Nichols’s actions were “not as egregious as

hundreds of thousands of dollars being defrauded from the company.” Additionally,

the quality of Beckles’s and Nichols’s respective misconduct differed -- Beckles’s

misconduct was the complete abandonment of his acknowledged responsibility to

audit and approve mileage reimbursement requests, which he completely delegated

to his administrative assistant, whereas Nichols’s misconduct involved giving his

password to an employee on one occasion for a purpose other than mileage approval.

      Nor did Beckles establish that Wallace was a valid comparator because, among

other things, the fraud committed by their subordinates differed.           Wallace’s

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subordinate falsified check requests, forged Wallace’s signature, and then submitted

those false check requests directly to accounting. Beckles’s subordinate, on the other

hand, submitted her fraudulent mileage reimbursement requests directly to Beckles,

who approved them via his delegation to his administrative assistant. Moreover,

Wallace only directly approved $288.77 in fraudulent check requests, making the

scale of the fraud for which he was responsible significantly less than the massive

amounts of mileage reimbursement fraud that Beckles approved through his

administrative assistant.

       Finally, Nichols and Wallace differed from Beckles in one further significant

respect -- Beckles’s subordinate claimed that Beckles knew about, and approved of,

her mileage reimbursement fraud. Beckles’s Warning Letter alleged that he may have

known of the fraud, and Senior VP Pigors explicitly said that he believed Beckles had

been complicit in the subordinate’s fraud. In contrast, there is nothing in the record

implicating Wallace or Nichols in the fraud. Accordingly, Beckles did not establish

valid comparators, and the district court did not err when it determined that Beckles

failed to establish a prima facie case of employment discrimination.2

       2
          Moreover, Beckles’s reliance on a Declaration by Gwen Rouzan, Managing Director of
Human Relations (“HR”) for AGFS South, for the proposition that FedEx admitted to the
comparability of Nichols and Wallace is misplaced. Among other things, any statements by
Rouzan regarded FedEx’s internal attempts to comply with Title VII and Beckles has provided
no authority for why any comparator determination she made should have been binding on the
district court.

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      We also are unpersuaded by Beckles’s claim that he has shown pretext. A

plaintiff may show pretext by pointing to the weaknesses, implausibilities,

inconsistencies, and contradictions in the employer’s rationale. Holland v. Gee, 677

F.3d 1047, 1055-56 (11th Cir. 2012). The plaintiff must show that the evidence,

when viewed as a whole, creates a reasonable inference that the employer engaged

in discrimination. Lockheed-Martin, 644 F.3d at 1326. While a comment unrelated

to the 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. Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1229 (11th Cir.

2002). . The plaintiff's assertion that his supervisor was "out to get him" does not

establish pretext for race discrimination. See Kelliher v. Veneman, 313 F.3d 1270,

1276 n.8 (11th Cir. 2002). We do not sit as a super-personnel department, and we do

not review the wisdom of an employer’s business decisions, no matter how mistaken,

as long as the action was not for a prohibited discriminatory reason. Alvarez v. Royal

Atl. Developers, Inc., 610 F.3d 1253, 1266-67 (11th Cir. 2010).

      Evidence of a “wrong, or other act is not admissible to prove a person’s

character in order to show that on a particular occasion the person acted in accordance

with the character.” Fed.R.Evid. 404(b)(1). Furthermore, “[t]he [district] court may




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exclude relevant evidence if its probative value is substantially outweighed by a

danger of . . . unfair prejudice.” Fed.R.Evid. 403.

       Here, the district court did not abuse its discretion when it refused to consider

certain remarks to show pretext. Specifically, the district court deemed inadmissible

the decade-old deposition testimony of a former FedEx VP, Michael Snyder, in which

he alleged that, in the mid-1990s, Pigors had referred derogatorily to black persons.

While Beckles argues that we allowed similar evidence to support a showing of

pretext in Ross v. Rhodes Furniture, Inc., 146 F.3d 1286 (11th Cir. 1998), he misses

that, under Rule 403, the relevant inquiry is not whether the evidence is probative of

pretext, but whether the probative nature of the evidence was substantially

outweighed by the potential for unfair prejudice. See Fed.R.Evid. 403. Because

Beckles argues only that the evidence here was probative, he has not shown that the

district court abused its discretion when it excluded Pigors alleged remarks as unduly

prejudicial. This is especially true given the unrelatedness of the comments to

Beckles’s termination and their removal from his termination by approximately 15

years.3




       3
         Indeed, we have held that the kinds of comments in Ross, when made in an unrelated
context, were insufficient to create an inference of pretext when standing alone. See Scott, 295
F.3d at 1229-30 (citing Rojas v. Florida, 285 F.3d 1339, 1343 (11th Cir. 2002)).

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      In addition, Beckles’s other circumstantial evidence did not create a convincing

mosaic sufficient to show that the real reason for his termination was his race (rather

than because of FedEx’s stated reliance on his leadership failure). Beckles’s

additional circumstantial evidence of pretext consists of: (1) a management meeting

where Pigors directed management to vote for John McCain, rather than Barack

Obama; (2) Rouzan’s statement that Pigors decided to terminate Beckles when he

heard of the allegations of fraud leveled against Beckles’s subordinate; and (3)

Rouzan’s statement that she had worked on previous cases in which Pigors was

accused of making racial comments.

      For starters, the management meeting provides no basis to show pretext

because Pigors did not urge management to vote for McCain because of McCain’s

race. Second, even if Pigors decided to terminate Beckles the moment he heard the

allegation that Beckles’s subordinates had committed fraud, such a conclusion, while

perhaps rash and unwise, is not prohibited by Title VII. See Alvarez, 610 F.3d at

1266-67. The mere fact that Pigors sought to oust Beckles does not show that he

targeted Beckles because of his race. See Kelliher, 313 F.3d at 1276 n.8. Finally,

Rouzan’s statement that unnamed others had accused Pigors of making racial remarks

at some point in the past, which she identified as the “Satchell case,” was so vague

and unrelated to Beckles’s termination that it could not have created the requisite

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“mosaic of circumstantial evidence” to establish pretext. See Lockheed-Martin, 644

F.3d at 1328. Thus, even if Beckles showed that FedEx’s reasons for terminating him

were false, he did not show that its real reason was racial discrimination.

Accordingly, Beckles did not show that he established pretext, and we affirm the

district court’s grant of summary judgment to FedEx.

      AFFIRMED.




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