              Case: 18-12518   Date Filed: 01/31/2019   Page: 1 of 9


                                                        [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 18-12518
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 3:17-cv-00014-TCB



RAY LOWE,

                                                        Plaintiff - Appellant,


                                     versus


EXEL, INC.,

                                                        Defendant - Appellee.

                         ________________________

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

                               (January 31, 2019)

Before TJOFLAT, JORDAN and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Ray Lowe, proceeding pro se, appeals the district court’s grant of summary

judgment in favor of Exel, Inc. in his race discrimination and retaliation suit

brought under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.

§ 2000e et seq., and his age discrimination suit brought under the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. After

careful review of the entire record and the parties’ briefs, we affirm.

             I.      FACTUAL AND PROCEDURAL BACKGROUND

      Lowe, who is African-American, was a forklift operator in one of Exel’s

warehouses. Exel evaluates employee productivity using a computer-generated

“LMS” score.1 Doc. 18-3 at 5 (¶ 9).2 Lowe acknowledged that when he was hired

he received Exel’s criteria for evaluating employee productivity. Specifically, he

was informed that four monthly LMS scores of -10 or below within a 12-month

period would result in termination. Employees receive written warnings after each

of the first three deficient LMS scores. Lowe earned monthly LMS scores of -13, -

27, -16, and -10 within a 12-month period and received written warnings after each

of the first three scores. Shortly after Lowe earned the score of -10, Exel fired him.

He was 53 years old at the time of his termination.




      1
          The record does not disclose what LMS stands for.
      2
          “Doc. #” refers to the numbered entry on the district court’s docket.

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      After receiving a right-to-sue letter from the U.S. Equal Employment

Opportunity Commission, Lowe timely sued Exel for race discrimination and

retaliation under Title VII and age discrimination under the ADEA. At the close of

discovery, Exel moved for summary judgment, which a magistrate judge

recommended granting. Adopting the magistrate judge’s report and

recommendations, the district court granted summary judgment to Exel on all of

Lowe’s claims. Lowe timely appealed.

                           II.   STANDARD OF REVIEW

      We review de novo the district court’s grant of summary judgment. Brown

v. Crawford, 906 F.2d 667, 669 (11th Cir. 1990). Summary judgment is

appropriate if “there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The moving party

bears the initial burden to show . . . that there are no genuine issues of material fact

that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608

(11th Cir. 1991). “Only when that burden has been met does the burden shift to

the non-moving party to demonstrate that there is indeed a[n] . . . issue of

[material] fact that precludes summary judgment.” Id.

      Federal Rule of Civil Procedure 56 “requires the nonmoving party to go

beyond the pleadings and[,] by her own affidavits, or by the depositions, answers

to interrogatories, and admissions on file, designate specific facts showing that


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there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986) (internal quotation marks omitted). Although we view all the evidence and

draw all inferences in the light most favorable to the nonmoving party, Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), “[i]f the

non-moving party fail[s] to make a showing on an essential element of his case

with respect to which he ha[s] the burden of proof, then the entry of judgment as a

matter of law is appropriate,” Webb-Edwards v. Orange Cty. Sheriff’s Office,

525 F.3d 1013, 1029 (11th Cir. 2008) (internal quotation marks omitted). “This

Court provides pro se parties wide latitude when construing their pleadings and

papers.” S.E.C. v. Elliott, 953 F.2d 1560, 1582 (11th Cir. 1992). Nevertheless, “a

pro se litigant does not escape the essential burden under summary judgment

standards of establishing that there is a genuine issue as to a fact material to his

case in order to avert summary judgment.” Brown, 906 F.2d at 670.

                                III.   DISCUSSION

      We affirm the district court’s grant of Exel’s motion for summary judgment.

For each of his claims, Lowe has failed to come forward with any facts that raise

even the slightest doubt as to whether Exel’s explanation for his firing was a

pretext for discrimination or retaliation.




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      A. We Affirm the Grant of Summary Judgment to Exel on Lowe’s Race
         Discrimination Claim Under Title VII.

      Title VII prohibits employers from “discharg[ing] any individual . . .

because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(l). Where, as here, the

plaintiff has admitted he has no direct evidence of race discrimination, we evaluate

Title VII discrimination claims using the burden-shifting framework from

McDonnell Douglass Corp. v. Green, 411 U.S. 792, 802-05 (1973). See Flowers v.

Troup Cty., Ga. Sch. Dist., 803 F.3d 1327, 1335-36 (11th Cir. 2015). First, the

plaintiff must present a prima facie case of discrimination. Id. Second, the

defendant must articulate a “legitimate, nondiscriminatory” basis for the discharge.

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). Third, the

plaintiff must “present[] circumstantial evidence that creates a triable issue

concerning the employer’s discriminatory intent.” Smith v. Lockheed-Martin

Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). One way a plaintiff may create a

triable issue as to whether the employer’s proffered explanation for the discharge

was pretextual is by showing “weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s proffered legitimate reasons for

its action [such] that a reasonable factfinder could find [the employer’s proffered

reasons] unworthy of credence.” Alvarez v. Royal Atl. Developers, Inc., 610 F.3d

1253, 1265 (11th Cir. 2010) (internal quotation marks omitted).



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       Even assuming Lowe has satisfied the first step in the McDonnell Douglas

framework by making out a prima facie case of race discrimination, we conclude

that he has failed to demonstrate that Exel’s explanation for his termination is

pretextual. Exel avers that Lowe was discharged because he earned four LMS

scores of -10 or below within a 12-month period. To support its explanation, Exel

points to the computer-generated LMS scores and the written warnings it furnished

to Lowe.

       In response, Lowe has not pointed to any facts that undermine Exel’s

explanation. His briefs to the district court and this Court cite nothing that would

create even a small puncture in Exel’s stated reasons for his termination. Likewise,

our review of the more than 250 pages he inserted into the record in his response to

Exel’s motion for summary judgment casts no doubt on Exel’s explanation.3 Lowe

even admitted in his deposition that he has no circumstantial evidence that supports

his contention that he was fired because of his race. Without any facts suggesting

that Exel’s stated reason was pretextual, Lowe has failed to carry his burden under

the McDonnell Douglas framework of “creat[ing] a triable issue concerning [his]

employer’s discriminatory intent.” Smith, 644 F.3d at 1328. And without an issue


       3
         In addition to failing to come forward with any facts that call into question Exel’s stated
explanation that he was fired because of his four unsatisfactory LMS scores, Lowe also has no
response to evidence showing that more than 90% of forklift operators at the Exel warehouse
where Lowe worked are African-American and that the next eight forklift operators hired after
Lowe’s termination were African-American.

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that needed to be tried, the district court properly granted summary judgment to

Exel on Lowe’s Title VII race discrimination claim. See Brown, 906 F.2d at 670.

      B. We Affirm the Grant of Summary Judgment to Exel on Lowe’s
         Retaliation Claim Under Title VII.

      Title VII also prohibits employers from retaliating against an employee

who opposes an employment practice banned by Title VII or who participates in an

activity aimed at enforcing the employee’s Title VII rights. See 42 U.S.C.

§ 2000e-3(a). Where, as here, the plaintiff has admitted he has no direct evidence

of retaliation, we evaluate Title VII retaliation claims using the same burden-

shifting framework from McDonnell Douglass. See Smelter v. S. Home Care

Servs. Inc., 904 F.3d 1276, 1293 (11th Cir. 2018).

      As with Lowe’s Title VII race discrimination claim, even assuming that

Lowe has established a prima facie case of retaliation, we conclude that he has

failed to cast any doubt on the veracity of Exel’s justification for his termination.

Lowe has failed to cite—and our own careful review has not uncovered—anything

in the record that calls into question Exel’s explanation that it fired Lowe due to his

low productivity scores. Because Lowe has failed to establish a genuine dispute of

material fact regarding whether Exel’s nonretaliatory reason for firing him was

actually a pretext for retaliation, the district court properly granted summary

judgment to Exel on Lowe’s Title VII retaliation claim. See Smelter, 904 F.3d at

1293; Brown, 906 F.2d at 670.
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       C. We Affirm the Grant of Summary Judgment to Exel on Lowe’s Age
          Discrimination Claim Under the ADEA.

       The ADEA prohibits the “discharge [of] any individual . . . because of such

individual’s age.” 29 U.S.C. § 623(a)(l). Where, as here, the plaintiff has admitted

he has no direct evidence of age discrimination, we evaluate ADEA discrimination

claims using the McDonnell Douglas burden-shifting framework. See Sims v.

MVM, Inc., 704 F.3d 1327, 1332-33 (11th Cir. 2013).

       As with Lowe’s Title VII race discrimination and retaliation claims, even

assuming he has made out a prima facie case of age discrimination, we conclude

that he has failed to make any showing that Exel’s explanation for his firing was

pretextual. Lowe’s briefs and our own review reveal nothing in the record that

gives rise to any doubt as to the veracity of Exel’s stated reason that Lowe’s

productivity was unacceptable. Lowe even admitted at his deposition that he is

unable to identify any circumstantial evidence supporting his assertion of age

discrimination. Because Lowe has failed to raise a genuine dispute of material fact

regarding whether Exel’s nondiscriminatory reason for firing him was merely a

pretext for discrimination, the district court properly granted summary judgment to

Exel on Lowe’s ADEA age discrimination claim. See Sims, 704 F.3d at 1337;

Brown, 906 F.2d at 670.4


       4
        To the extent that Lowe argues that he had insufficient time to respond to Exel’s motion
for summary judgment and that he received unlawfully disparate overtime assignments and
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                                   IV.     CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s grant of Exel’s

motion for summary judgment.

       AFFIRMED.




wages, this Court need not consider these arguments, as Lowe did not raise them below.
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 598 (11th Cir. 1995) (en banc). To the
extent Lowe contends that Exel falsified its written warnings, he points to nothing in the record
indicating they were fabricated, and our own review also reveals no evidence of fabrication.
Lowe’s broad assertions that his “Exhibits . . . show how write-ups were created weeks and
sometimes months [after] an EEOC contact,” Doc. 21 at 1, and that the “evidence shows how
files were removed and write-ups surfaced following the subpoena for documentation from
EEOC,” Doc. 23 at 1, are insufficient to raise a genuine issue of material fact. Lowe must “set
forth specific facts” from the record that tend to show a genuine dispute over the veracity of the
LMS scores or written warnings. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).
For example, to gather facts that might raise the possibility of document falsification, Lowe
could have deposed the authors of the write-ups, secretaries or clerks who manage Exel’s
personnel files, or Exel’s human resources manager. He has not done so.
        Exel also raises several issues regarding Lowe’s compliance with the Federal Rules of
Civil Procedure and the Northern District of Georgia’s Local Rules and possible inconsistencies
among Lowe’s three claims. We need not address these issues because our de novo review of the
record confirms that the grant of summary judgment to Exel was proper.

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