           Case: 16-11638   Date Filed: 01/04/2017    Page: 1 of 8


                                                     [DO NOT PUBLISH]




            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 16-11638
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 1:14-cv-03202-ELR



LEROY WHITE,

                                                            Plaintiff-Appellant,

                                  versus

CRYSTAL MOVER SERVICES, INC.,

                                                           Defendant-Appellee.

                      ________________________

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

                            (January 4, 2017)

Before HULL, JORDAN and ROSENBAUM, Circuit Judges.

PER CURIAM:
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         Leroy White, an African-American former employee of Crystal Mover

Services, Inc. (“Crystal”), appeals the district court’s grant of summary judgment

in favor of Crystal on his claims of employment discrimination and retaliation,

filed pursuant to 42 U.S.C. § 1981. After review, we affirm.

                            I. STANDARD OF REVIEW

         We review de novo a district court’s grant of summary judgment, viewing

the evidence in the light most favorable to the non-moving party. Brooks v. Cty.

Comm’n, 446 F.3d 1160, 1161-62 (11th Cir. 2006). Summary judgment is

appropriate “if the movant shows that 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).

                   II. LEGITIMATE REASONS OR PRETEXT

         The district court did not err in granting summary judgment to Defendant

Crystal on Plaintiff White’s race discrimination and retaliation claims, which were

based on circumstantial evidence. Even if White made out prima facie cases of

discrimination and retaliation, he failed to show pretext under the McDonnell

Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973); see also Springer v. Convergys Customer Mgmt., 509 F.3d 1344,

1347 & n.1 (applying the McDonnell Douglas framework to claims under both




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Title VII and § 1981 because they “have the same requirements of proof and

present the same analytical framework”).1

       Plaintiff White claimed that Defendant Crystal discriminated against him

based on his race and retaliated against him for his prior discrimination lawsuit

against Crystal after Crystal failed to promote White to an open engineer position

in February 2014. On appeal, the parties do not dispute that Defendant Crystal

offered several legitimate, nondiscriminatory reasons for not selecting Plaintiff

White for the engineer position, namely that he did not have the required

supervisory experience, he was not considered a hard worker, he did not show

initiative, and he had not interviewed well. Instead, Defendant Crystal’s five

decision-makers, after interviewing all six candidates, chose Christopher Hite, a

white employee, for the position because they believed he was the most qualified

candidate. Specifically, Hite had prior supervisory experience at an electrical

company, he had obtained an electrical contractor’s license, he was considered a

hard worker who showed initiative, and he had interviewed well.

       As the district court explained, Plaintiff White failed to present evidence

from which a jury reasonably could conclude that Defendant Crystal’s reasons


       1
         On appeal, the parties dispute whether White established a prima facie case of retaliation
and whether White showed that Crystal’s decision not to promote him in February 2014 was
causally connected either to White’s first EEOC charge of discrimination in May 2011 or to
White’s December 2013 participation in the discrimination lawsuit of another Crystal employee,
Frederick Hopkins. We need not address this issue because even assuming arguendo that White
established a prima facie case of retaliation, he failed to show pretext.
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were pretextual. See Chapman v. AI Transport, 229 F.3d 1012, 1024-25 (11th Cir.

2000) (en banc); Combs v. Plantation Patterns, 106 F.3d 1519, 1528-29 (11th Cir.

1997). For the most part, White either recasts Crystal’s reasons or quarrels with

their wisdom, which is insufficient to show pretext. See Chapman, 229 F.3d at

1030 (“A plaintiff is not allowed to recast an employer’s proffered

nondiscriminatory reasons or substitute his business judgment for that of the

employer. Provided that the proffered reason is one that might motivate a

reasonable employer, an employee must meet that reason head on and rebut it, and

the employee cannot succeed by simply quarreling with the wisdom of that

reason.”).

      For example, Plaintiff White argues that having an electrical contractor’s

license was not a valid requirement for the engineer position and, in any event, was

no more impressive than White’s online coursework. First, Defendant Crystal did

not require an electrical contractor’s license for the engineer position. Rather,

Crystal required a degree or related experience in electrical or mechanical

engineering. Crystal’s decision makers found that Hite’s class A electrical

contractor’s license was “related experience” that would be helpful to the technical

aspect of the engineer position, and thus assigned White a one out of three, the

highest score for that qualification. While White had obtained some certificates

through online courses, he did not have a degree or a license in electrical or


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mechanical engineering. Thus, White was given a middle score of two for his

education or related experience. At bottom, White is merely quibbling with

Crystal’s judgment about how much more valuable Hite’s licensing credential was

to the position than White’s online coursework.

      Similarly, Plaintiff White takes issue with Defendant Crystal’s judgment that

White’s experience as a general contractor supervising subcontractors was not

equivalent to supervising employees, which was the kind of supervisory experience

sought for the engineer position. White, however, does not dispute that his lead

technician position at Crystal did not provide him with supervisory experience and

that he had never supervised “W-2 employees” in his past employment. In other

words, rather than meet Crystal’s reason head on, White simply quarrels with it.

      White also argues that Hite was less qualified than another African

American candidate for the position, Edward Austin, because Austin had two

college degrees. White’s argument ignores the fact that Defendant Crystal’s

decision-makers gave both Austin and Hite the highest score—one out of three—

for their education or related experience.

      In any event, the evidence does not support Plaintiff White’s contention that

Austin was more qualified than Hite in terms of education and experience. A

comparison of Austin’s and Hite’s credentials shows that Austin had an associate

degree and a bachelor’s degree and that Hite had neither. However, Austin’s


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associate degree was in liberal arts and his bachelor’s degree was in business

management and marketing, not in electrical or mechanical engineering.

Moreover, Hite had more relevant work experience, having worked in the electrical

industry for more than 18 years, whereas Austin had worked for many years doing

non-relevant work, such as being a police officer and owning and managing a

perfume company. Austin did not become an electronics technician until 2000.

While there are various differences between the two candidates’ education and

related experience, the differences are not “of such weight and significance that no

reasonable person, in the exercise of impartial judgment, could have chosen” Hite

over Austin. See Springer, 509 F.3d at 1349 (quotation marks omitted).

      Furthermore, Plaintiff White’s emphasis on Austin’s college degrees also

ignores the fact that the candidates’ education and related experience was only one

of several criteria the decision-makers evaluated to determine which candidate was

the most qualified. Austin did not score as highly as Hite on those other

qualifications, which included supervisory experience, work history at Defendant

Crystal, leadership ability, and performance in the interview. Thus, the mere fact

that Austin had college degrees but did not get the position is not evidence of

pretext.




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                  III. RACIALLY DEROGATORY COMMENTS

       Finally, Plaintiff White points to three racially derogatory remarks allegedly

made by Defendant Crystal’s employees. Despite any denials, we consider these

comments as true for purposes of this appeal. More importantly, only one of these

comments was made by a decision-maker for the open engineer position.

Specifically, Frederick Hopkins, another African American employee of Crystal,

testified in a deposition about a conversation he had with Robert Mihalco, one of

the five decision-makers.2 Hopkins, knowing Mihalco had recently been in the

hospital, asked how Mihalco was doing. Mihalco responded, “You know, I ain’t

doing to[o] good. I got that Nigger disease.” Hopkins thought Mihalco’s comment

was a reference to either diabetes or high blood pressure. The record does not

provide a precise date for this conversation, but according to Hopkins, the

exchange with Mihalco occurred around the time, but after, Mihalco had

investigated Hopkins’s own EEOC charge filed in 2011. It is undisputed that

Mihalco’s comment was not made to White or in his presence and that it was

unrelated to the decision not to promote White to the engineer position several

years later in 2014.

       2
         On appeal, Plaintiff White argues that the district court abused its discretion by refusing
to consider this part of Hopkins’s deposition testimony because White failed to attach the
relevant transcript pages to his response to Defendant Crystal’s summary judgment motion, as
required by the Northern District of Georgia’s Local Rule 56.1. Instead, Crystal filed Hopkins’s
entire deposition transcript in the course of objecting to White’s reliance on Hopkins’s
testimony. We need not address this issue because we agree with the district court’s alternative
ruling that even when Hopkins’s testimony is considered, White fails to show pretext.
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      Two other employees who were not decision-makers also allegedly made

racially derogatory comments. Hopkins said that in 2010 he once walked in on an

“all white” meeting of employees who were complaining about him and overheard

one of the employees, Richard Josephus, say, “I’m sick of them niggers.” In

addition, White testified that in 2011 Alford McCarthy, an African American site

manager, said that white workers were better than black workers because they

worked harder. However, like Mihalco’s 2011 comment, neither McCarthy’s 2011

comment nor Josephus’s 2010 comment was related to the decision not to promote

White to engineer in 2014.

      Given that there is no other evidence of pretext, these three isolated racial

comments that were not connected to the 2014 promotion decision cannot establish

pretext. See Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1227-30 (11th

Cir. 2002) (explaining that a racially derogatory comment, even by an employee’s

direct supervisor, that is unrelated to the adverse employment action may

contribute to a circumstantial case for pretext but will not be sufficient on its own

to establish pretext).

      For these reasons, we affirm the district court’s entry of summary judgment

in favor of Crystal on White’s race discrimination and retaliation claims.

      AFFIRMED.




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