           Case: 13-14121   Date Filed: 05/27/2014   Page: 1 of 16


                                                                     [PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 13-14121
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 1:12-cv-22945-CMA



CEGESTE BARTHELUS,

                                                            Plaintiff-Appellant,

                                    versus

G4S GOVERNMENT SOLUTIONS, INC.,

                                                           Defendant-Appellee.

                       ________________________

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

                              (May 27, 2014)

Before TJOFLAT, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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      Cegeste Barthelus, who is Haitian and black, appeals pro se the summary

judgment the District Court granted his former employer, G4S Government

Solutions, Inc. (“G4S” or “WSI”), 1 on his claims that, in violation of Title VII of

the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2(a)(1) and § 2000e-

3(a), and 42 U.S.C. § 1981, G4S discriminated against him in the workplace,

denied him promotions and then terminated his employment on account of his age,

race and national origin and that G4S retaliated against him for complaining about

such discrimination. We affirm, in part, and vacate and remand, in part.

                                               I.

      The operative pleadings before the District Court when it ruled on G4S’s

motion for summary judgment were the plaintiff’s First Amended Complaint (the

“complaint”) [ECF No. 9], and the defendant’s Answer and Affirmative Defenses

to Amended Complaint (the “answer”) [ECF No. 10].

                                               A.

      Barthelus’s complaint, which was filed on September 21, 2012, contains 69

paragraphs and four counts.2 Counts I and III allege claims of unlawful

discrimination in the workplace and in the termination of his employment. Count I

alleges that G4S discriminated against Barthelus based on his national origin, in

violation of Title VII; Count III alleges that G4S discriminated against Barthelus

      1
          G4S was previously known as Wackenhut Services, Inc.
      2
          Barthelus’s complaint seeks damages and equitable relief.
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because of his race, in violation of § 1981. Counts II and IV, brought under Title

VII 3 and § 1981, respectively, allege that G4S terminated Barthelus’s employment

because he filed a complaint of discrimination with its Human Resources

Department. We do not consider Barthelus’s appeal of the judgment on those

counts because his brief presents no argument that the District Court erred in

granting summary judgment on the claims asserted in those counts. 4 We focus,

instead, on Counts I and III.

       The first 18 paragraphs of Barthelus’s complaint trace his employment from

December 29, 1997, when he came to work for G4S’s predecessor, The Wackenhut

Corporation, as an electrical engineer in its I.T. Department, to February 10, 2011,

when G4S terminated his employment. Paragraphs 11 through 18 describe

incidents of discriminatory treatment he allegedly received based on his race or

national origin that took place during that time frame. Those paragraphs describe

the treatment thusly:

       “[A]bout October 5, 2005, Defendant began discriminating against Plaintiff

because Plaintiff is Haitain and/or because of his race.” ¶ 11. “In . . . October,

2005, Plaintiff was denied a promotion because he had a Haitian accent.” ¶ 16.



       3
           See 42 U.S.C. § 2000e-3(a).
       4
           “While we read briefs filed by pro se litigants liberally, issues not briefed on appeal by
a pro se litigant are deemed abandoned.” Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.
2008) (internal citations omitted).
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        “After ten (10) years of service, Mr. Galusha, the chief technology officer,

who was also Plaintiff’s supervisor, provided Plaintiff with a very bad performance

review.” ¶ 12. “After discussion between Plaintiff and Mr. Galusha, Mr. Galusha

decided that the performance review was inaccurate and sought to amend the

evaluation, but his . . . supervisor, Mrs. Laura Thomas, a non-Black, non-Haitian,

objected to the amendment.” ¶ 13.

        “Plaintiff, the only Black, Haitian employee in [the I.T.] department, did not

receive a pay increase whereas all other non-Black, non-Haitian employees did.”

¶ 14.

        “On . . . December 16, 2009, Mrs. [Deborah] Bria [the I.T. Manager, who is

non-Haitian and non-Black] denied Plaintiff extra days off . . . because Plaintiff

was on vacation during a holiday period, but . . . granted [extra] days off to a non-

Black, non-Haitian employee who was also on vacation during a holiday period.”

¶ 17.

        “On . . . April 1, 2010, Mrs. . . . Bria . . . began discriminating against

Plaintiff. For example, Mrs. Bria, on many occasions, required Plaintiff to cut his

lunch break short and return to work (where there was no emergency that required

such), but Mrs. Bria did not treat other similarly situated employees not in the

same protected class in such a manner.” ¶ 15.




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      “On . . . December 10, 2010, Mrs. Bria repeated her discriminatory actions

by granting Plaintiff’s white, non-Haitian counterparts leave while denying

Plaintiff the same privileges.” ¶ 17.

      “All senior title employees, such as Plaintiff, had an office, but Plaintiff,

being the only Black, Haitian employee in his department, did not.” ¶ 18.

       Count I, “Violation of Title VII of the Civil Right[s] Act of 1964:

Discrimination Based on National Origin” incorporates the first 18 paragraphs of

the complaint and adds an additional 13 paragraphs, quotes from Title VII the text

of 42 U.S.C. § 2000e-2(a)5 and alleges that “Plaintiff was discriminated against by

his supervisors because he was Haitian,” ¶ 25; “Defendant, through its practices

and policies as an employer, . . . discriminated against Plaintiff on account of his

national origin . . . with respect to its decision to treat Plaintiff different from other

similarly situated employees who are not in the same protected class as Plaintiff,”

¶ 28; and “Plaintiff was fired by Defendant and Plaintiff’s termination from



      5
          Paragraph 19 quotes 42 U.S.C. § 2000e-2(a) as follows:

      It shall be an unlawful employment practice for an employer to: (1) fail or refuse
      to hire or to discharge any individual, or otherwise to discriminate against any
      individual with respect to his compensation, terms, conditions, or privileges of
      employment, because of such individual’s [race], color, religion, sex, or national
      origin; or (2) to limit, segregate, or classify his employees or applicants for
      employment in any way which would deprive or tend to deprive any individual of
      employment opportunities or otherwise adversely affect his status as an employee,
      because of such individual’s [race], color, religion, sex, or national origin.


                                              5
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employment was directly and proximately caused by the Defendant’s unjustified

discrimination against Plaintiff because . . . he was Haitian,” ¶ 29.

      Count III, “Discrimination Based on Race in Violation of § 1981,”

incorporates paragraphs 1 through 18 of the complaint and alleges that “Defendant

has engaged in a pattern of continuous discrimination against Plaintiff based on his

race.” ¶ 46. “During the course of his employment . . . Plaintiff was continually

and repeatedly subjected to severe and pervasive racial discrimination by

Defendant’s agents because of racial animus towards Plaintiff.” ¶ 47. “Defendant

crafted and implemented a plan to eventually terminate Plaintiff based upon his

race.” ¶ 48. “Plaintiff was singled out for treatment in a discriminatory manner by

Defendant because of his race.” ¶ 49. “Defendant, and its supervisory personnel,

was aware that discrimination on the basis of race was unlawful but acted in

reckless disregard of the law. Plaintiff complained to Defendant’s Human

Resources Department on . . . December 28, 2010.” ¶ 50. “The actions and

language of the Defendant were so severe and pervasive as to alter the terms,

conditions, and/or privileges of his employment with the Defendant.” ¶ 51.

“Defendant’s actions were based upon Plaintiff being a Black individual. The

Defendant subjected Plaintiff to race-based animosity.” ¶ 52. “At all times

material hereto, the employees exhibiting discriminatory conduct towards Plaintiff




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were all in a position that possesses the authority to affect the terms, conditions,

and privileges of the Plaintiff’s employment with Defendant.” ¶ 57.

                                                B.

       G4S apparently concluded that the “well-pleaded facts” of Barthelus’s

complaint were sufficient, under Ashcroft v. Iqbal, “to permit the [district] court to

infer more than the mere possibility of misconduct,” 556 U.S. 662, 679, 129 S. Ct.

1937, 1950, 173 L. Ed. 2d 868 (2009), and therefore bypassed filing a motion to

dismiss or a motion for a more definite statement under Federal Rules of Civil

Procedure 12(b)(6) or 12(e), 6 respectively, and answered the complaint, on

October 3, 2012.

       G4S’s answer responds to the complaint paragraph-by-paragraph, denies the

allegations of discrimination and retaliation, and asserts that “Plaintiff received a

number of poor performance reviews, including by Mr. Galusha,” ¶ 12; that

“Plaintiff [was informed] that his employment would be terminated if he did not

improve,” ¶ 36; and that, “after receiving a variety of poor performance

evaluations and warnings, Plaintiff complained to human resources,” ¶ 50.


       6
           In Bell Atlantic Corp. v. Twombly, Justice Stevens stated, in dissent, that “[t]he remedy
for an allegation lacking sufficient specificity to provide adequate notice is . . . a Rule 12(e)
motion for a more definite statement.” 550 U.S. 554, 590 n.9, 127 S. Ct. 1955, 1985 n.9, 167 L.
Ed. 2d 929 (2007) (Stevens, J., dissenting). When one considers the differences in the positions
Barthelus and G4S took in their joint pretrial stipulation, as indicating in subpart C, infra, it
becomes obvious that a more definite statement would have reduced the amount of discovery the
parties engaged in and assisted the District Court in getting to the root of the parties’
controversy.
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      After responding to the complaint’s paragraphs, the answer asserts six

affirmative defenses, including that “Plaintiff cannot establish a prima facie case of

discrimination”; “Defendant terminated Plaintiff for legitimate nondiscriminatory

reasons”; and that “Plaintiff’s claims are barred by the applicable statute of

limitations.” Answer at 6.

                                          C.

      Three days after G4S filed its answer, the District Court set the case down

for trial on July 29, 2013, and ordered the parties’ discovery monitored by the

Magistrate Judge. After discovery concluded, the parties filed a pretrial stipulation

[ECF No. 64]. Among other things, they described their respective contentions.

      According to Barthelus, he
      filed a Complaint against Defendants alleging: 1) Discrimination
      Based On Race and National Origin in Violation of Title VII of the
      Civil Rights Act of 1964; 2) Retaliation in Violation of Title VII of
      the Civil Rights Act of 1964; 3) Discrimination Based On Race in
      Violation of 42 U.S.C. § 1981; 4) Retaliation in Violation of 42
      U.S.C. § 1981.

      Defendant hired Plaintiff to work as a Senior Network Administrator.
      Plaintiff worked for Defendant from December 29, 1997 through
      February 10, 2011. Plaintiff claims that several of Defendant’s agents
      discriminated against Plaintiff based on the fact that he is a Black
      Haitian. These instances of discrimination include, but are not limited
      to, the following: Plaintiff was subject to a very negative, though
      highly inaccurate, performance review and when Plaintiff’s immediate
      supervisor sought to amend the review, the amendment was rejected
      by a non-Black, non-Haitian supervisor; Plaintiff was unjustifiably
      asked to cut his lunch break short by a non-Black, non-Haitian
      supervisor on numerous occasions; Plaintiff was denied a promotion

                                          8
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      because he had a Haitian accent; Plaintiff was denied vacation days at
      times when other similarly-situated, though non-Black, non-Haitian
      employees were not; and Plaintiff was not given an office whereas
      other similarly-situated, though non-Black, non-Haitian employees
      were.

      Plaintiff complained about this discrimination to Defendant’s Human
      Resources Department. One such complaint was made on or about
      December 28, 2010, less than two months before Plaintiff was
      terminated. Plaintiff claims his termination was in retaliation for
      complaining about repeated incidents of discrimination.

Pretrial Stipulation at 1–2.

      According to G4S, Barthelus’s complaint “asserts only a claim for national

origin discrimination under Title VII. No claim for race discrimination is

asserted.” With that said, G4S explained Barthelus’s claims and its view of the

facts not in dispute as follows:

      Plaintiff was hired by [G4S] in August 2002 . . . . He worked for
      [G4S] until February 10, 2011, when he was terminated for
      performance deficiencies. As the Senior Network Administrator,
      Plaintiff was responsible for not only the operation of the company’s
      computer system and administration of e-mail and system servers,
      certain software solutions, and back-up systems, but also for the
      proactive monitoring of vulnerabilities in the systems and
      implementation of proactive solutions in the ever growing field of
      information technology. As [G4S] grew, Plaintiff could not keep up
      with the tasks assigned to him and resisted learning newer solutions
      such as virtualization of systems. After numerous warnings and
      attempts at helping Plaintiff understand his performance deficiencies,
      all of which were met with resistance, Plaintiff was terminated. The
      same person who hired Plaintiff, Paul Donahue, also made the
      decision to fire him.
      In addition to the basic facts of this case, [G4S] takes issue with the
      factual allegations asserted by Plaintiff in his summary . . . as several
      issues were not raised in the [complaint], or are barred by the
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       applicable statute of limitations. By way of example, Plaintiff asserts
       that he was passed over for promotion in 2005, which is barred by the
       limitations period. For the first time in response to Defendant’s
       Motion for Summary Judgment, Plaintiff claimed that he was passed
       over for promotion when Deborah Bria was promoted in mid-2010,
       which claim was raised neither in Plaintiff’s EEOC charge or his
       [complaint]. Thus, that claim is not at issue in this litigation.

       The only issue properly raised in the pleadings in this case is whether
       Plaintiff was terminated due to his race, national origin, or because in
       December 2010 he complained about alleged discrimination. [G4S]
       will present evidence at trial, if summary judgment is not entered in
       its favor, that Plaintiff was terminated for one reason and one reason
       only: his continued failure to perform his job responsibilities to
       [G4S’s] standards.
Pretrial Stipulation at 2–3.

                                              II.

       “During Barthelus’s entire tenure at [G4S], he was the only Senior Network

Administrator and the only engineer within the [I.T.] department.” Order [ECF

No. 71] at 5. In presenting its case for summary judgment, and as the District

Court noted in its dispositive order, “G4S concede[d] [that] Barthelus has satisfied

the elements of a prima facie case.” Id. at 22–23. Given that concession and its

impression that the only issue Counts I and III presented was whether G4S

terminated Barthelus’s employment for a legitimate non-discriminatory reason,7




       7
          The court apparently agreed with the statement G4S made in the pretrial stipulation—
that “the only issue properly raised in the pleadings in this case is whether Plaintiff was
terminated due to his race, national origin, or because in December 2010 he complained about
alleged discrimination.” See part I, infra.
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the court moved straight to that solitary issue—beginning with a statement of

G4S’s position.

      “G4S asserts Barthelus was terminated for ‘performance deficiencies’

evidenced by ‘consistent criticism’ from multiple supervisors. In support, G4S

provides employee evaluations from 1999 to 2002, and 2007 through his

termination on February 10, 2011.” Id. at 23. The court concluded that “[t]hese

evaluations sufficiently satisf[ied] G4S’s burden of production to provide a

legitimate non-discriminatory reason for Barthelus’s termination,” id., and turned

to whether Barthelus had demonstrated that the reason was a pretext for

discrimination. The court held that he had not.

      The court based this holding on the fact that Barthelus was unable to point to

a replacement who was not protected, id. at 24–25; that the statistical evidence he

proffered was not probative, id. at 25–27; that although Galusha’s comment that

Barthelus had “a communication issue with his accent” “may have contributed to a

circumstantial case for pretext, it [was] unaccompanied by any other evidence and

cannot singularly support a finding of pretext,” id. at 28, 29; that the evidence of

G4S’s failure to promote Barthelus was irrelevant because “[n]either the

[complaint] nor Barthelus’s EEOC Charge of Discrimination[8] alleges a failure to




      8
          In the EEOC charging document [ECF No. 53-1], Barthelus alleged:
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promote claim,” id. at 31; and that “Barthelus’s extensive history of negative

performance reviews followed by his own self-serving disagreements are not

evidence of pretext,” id. 36. In sum, the District Court granted G4S summary

judgment on Counts I and III solely on the ground that the evidence failed to create

a genuine issue of fact on the issue of pretext.

      The court overlooked the fact that Counts I and III alleged that Barthelus had

been subjected to a pattern of workplace discrimination based on race and national

origin. The allegations included that Barthelus “did not receive a pay increase

whereas all other non-Black, non-Haitian employees did”; that whites were

provided “an office” but he was not; that Mrs. Bria denied him “extra days off”

during the holiday season but granted them to whites; and that Mrs. Bria granted

whites “leave while denying Plaintiff the same privileges.”

      Moreover, in stating that “Barthelus’s extensive history of negative

performance reviews followed by his own self-serving disagreements are not

evidence of pretext,” the court cited, but apparently discounted, the following



      Deborah H. Bria, Director I.T., created a very hostile working environment. I was
      singled out and treated differently from my White and younger co-workers.
      When Deborah H. Bria was my Manager, she harassed me and tried to force me
      to quit my job. When she became Director, she had the authority to get rid of me
      and that she did by using false accusations regarding my performance. Therefore,
      I believe I have been discriminated against because of my Age/55, my race/Black,
      my national origin, Haitian, and retaliated against because I reported her
      discriminatory conduct to Human Resources. I am not aware of any younger
      White employees being treated in the same manner.

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facts: After G4S downsized in 2002,9 Barthelus’s “performance reviews . . . were

consistently positive.” Order at 5. Galusha’s evaluation was that Barthelus “had

become a ‘valuable addition to [G4S].’” Id. “Barthelus’s December 2003 and

December 2004 reviews were similarly positive.” Id. In 2004, Galusha told

Donahue, G4S’s president and chief executive officer, that “Barthelus was

underpaid.” Id. at 6. In December 2005, Barthelus “received and increase in his

salary, effective January 2006, which included a six percent ‘[m]erit’ increase and

a three percent ‘[a]djustment.’” Id. at 8. In 2007, Galusha emailed Laura Thomas,

G4S’s chief financial officer, that Barthelus “‘feels he is being treated wrongly by

those in the I.T. department because . . . [he is] black and . . . ha[s] an accent.’” Id.

At the end of the year, Galusha gave Barthelus an unfavorable performance

review. Id. at 9. On reconsideration, Galusha emailed Thomas that he “‘came to

the conclusion that most of the comments I gave in the review could be redacted

and regarded as misunderstanding.’” Id. at 10. Barthelus’s December 2008

performance review “included several examples indicating the manner in which

Barthelus’s performance needed to improve to avoid future system failures.” Id. at

11. “Donahue advised him that ‘it was not necessary for [Barthelus] to write a

rebuttal because [G4S] put the reviews—whether good or bad—in the drawer and

never pull[s] out the reviews again.’” Id.


      9
          G4S downsized after it was separated from The Wackenhut Corporation in 2002.
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      At some point prior to January 2009, Tech Search America (“TSA”), an

independent information technology company, began an annual audit of G4S’s I.T.

Department. The January 26, 2009, audit report, which the District Court did not

mention in its order, contains this “Results of the Assessment”:

      Our analysis process revealed some detailed information about
      [G4S]’s Internet point-of­presence network and internal network.
      This data was reviewed, and it was determined that [G4S] needs
      some moderate improvement to its overall security posture.

      TSA rates the overall [G4S] network security at 94.88%. This
      combined score is a result of receiving a score of 98.33% for the
      external audit and 91.43% for the internal audit. These relatively
      high security ratings indicate that the network security staff of
      [G4S] has taken almost all of the appropriate steps to ensure a solid
      security posture for both the internal and external networks.

      This slight reduction is primarily due to the added weaknesses that
      were discovered during the internal assessment. These weaknesses
      can be attributed to the fact that [G4S] HQ network has evolved to a
      greater and more complex network environment to suit the business
      needs of the [G4S] user community. Note that TSA feels that the
      overall security posture of [G4S] is still quite good. In addition,
      compared to assessments of companies and organizations of equal
      size, TSA finds that [G4S] is above par and secure.

 Pl. Ex. V [ECF No. 52-26] at 5. Since Barthelus was the Senior Network

 Administrator and only engineer in the I.T. Department and the Department’s

 security posture was “above par and secure,” it can be inferred from TSA’s audit

 that Barthelus’s performance may not have been as uniformly negative as the

 District Court concluded.



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      The ultimate question this appeal presents is whether the evidence in the

 record before the District Court, considered in the light most favorable to

 Barthelus, creates material issues of fact. See Ellis v. England, 432 F.3d 1321,

 1325 (11th Cir. 2005). We are unable to answer this question with respect to

 Barthelus’s claim that G4S, through its supervisors, discriminated against him in

 the workplace due to his race and national origin as alleged in Counts I and III

 because the District Court did not consider those claims. We have considered the

 court’s decision that the evidence failed to establish a genuine issue of fact as to

 whether G4S’s decision to terminate Barthelus’s employment was a pretext for

 unlawful discrimination. We conclude that material issues of fact are present

 regarding pretext—especially when Barthelus’s performance reviews are

 considered in light of the TSA audits.

                                          III.

      For the foregoing reasons, we affirm the District Court’s judgment on

Counts II and IV but vacate its judgment on Counts I and III and remand the case

for further proceedings on those counts. In considering whether Counts I and III

present claims sufficient to withstand summary judgment, the District Court should

bear in mind that those counts assert the “status-based” category of discrimination

prohibited by Title VII. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, __ U.S. __, 133

S. Ct. 2517, 2522–23, 186 L. Ed. 2d 503 (2013).

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      An employee who alleges status-based discrimination under Title VII
      need not show that the causal link between injury and wrong is so
      close that the injury would not have occurred but for the act. So-
      called but-for causation is not the test. It suffices instead to show that
      the motive to discriminate was one of the employer’s motives, even if
      the employer also had other, lawful motives that were causative in the
      employer’s decision.

Id.


AFFIRMED, in part, VACATED and REMANDED, in part.




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