                                                                    [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                                            No. 10-15633             OCT 6, 2011
                                        Non-Argument Calendar         JOHN LEY
                                                                        CLERK
                                      ________________________

                                D.C. Docket No. 5:09-cv-00085-CAR

EVERETT HENDERSON,

llllllllllllllllllllllllllllllllllllllll                              Plaintiff-Appellant,

                                                versus

FEDEX EXPRESS,

llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellee.

                                     ________________________

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

                                           (October 6, 2011)

Before HULL, PRYOR and FAY, Circuit Judges.

PER CURIAM:

         Everett Henderson appeals the district court’s order granting summary

judgment in favor of his former employer, Federal Express Corporation, in his
employment discrimination action brought under Title VII of the Civil Rights Act

of 1964, 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a), and the Americans with

Disabilities Act, 42 U.S.C. § 12112. On appeal, Henderson argues that the district

court improperly relied upon inadmissible hearsay evidence in ruling on FedEx’s

motion for summary judgment. He also contends that the district court misapplied

the legal standard for Title VII retaliation claims. For the reasons set forth below,

we affirm.

                                          I.

       In June 2007, Henderson filed a two-count complaint against FedEx. In

Count One, Henderson asserted that FedEx had failed to provide him with a

reasonable accommodation for a medical condition, as required by the Americans

with Disabilities Act. In Count Two, Henderson contended that he had been

discriminated against on account of his race and had been subjected to a retaliatory

discharge, in violation of Title VII. Only Henderson’s Title VII retaliation claim

is at issue in this appeal.

       FedEx moved for summary judgment with respect to all of Henderson’s

claims. The company argued that Henderson had failed to establish a prima facie

case of retaliation because he had not proved that there was a causal connection

between his protected activity and his termination. FedEx also asserted that it had

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a legitimate, non-discriminatory reason for terminating Henderson’s employment,

namely, that Henderson had falsified his time card.

      FedEx submitted Henderson’s deposition in support of its summary

judgment motion. In his deposition testimony, Henderson explained that he filed a

series of complaints and grievances during his employment with FedEx.      On

March 21, 2005, he filed an internal grievance asserting that his supervisor, Bryan

Evans, had participated in crude sexual conversations with other employees.

Later, on September 14, 2005, Henderson was interviewed by a human resources

representative regarding a complaint filed by another employee. During that

interview, Henderson described an incident where Evans had lied about another

employee being licensed to transport hazardous materials, and also expressed

concerns “about management inconsistencies and practices.”

      FedEx also submitted the transcript of Evans’s deposition. Evans explained

that Henderson had been terminated for falsifying his time card. FedEx’s

Acceptable Conduct Policy made the deliberate falsification of company

documents a terminable offense. In September 2005, the company received a

report that two employees at its facility in Macon, Georgia, were falsifying time

cards. Management responded by installing a surveillance camera near the time

clock. On September 22, Evans observed Henderson walk into the building and

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join an exercise routine that was already in progress without taking off his

backpack. Evans believed that Henderson may have been late for work, so he

audited Henderson’s time card later that afternoon. Henderson had listed a

clock-in time of 7:14 a.m., on his time card, but he did not appear on the

surveillance videotape until around 3:00 p.m., when he punched out for the day.

The videotape showed another employee, Greg Barnes, clocking in at 6:40 or 6:42

a.m., and then clocking in a second time at 7:14 a.m. in a very suspicious manner.

Evans concluded that Barnes had clocked in for Henderson so that Henderson

would not appear to have been late. Evans’s supervisor, Michael Britton, and

Senior Security Specialist Tad Fuqua submitted declarations that corroborated

Evans’s account of what was on the videotape.

      Henderson opposed FedEx’s summary judgment motion. He argued that he

had established a prima facie case of retaliation. He observed that there was a gap

of just two weeks between his September 14 interview and his termination.

Henderson asserted that the close temporal proximity between those two events

was sufficient to establish causation. Henderson further argued that FedEx’s

justification for his termination was pretextual because other FedEx employees

were not fired after they falsified company records. In a sworn affidavit,

Henderson explained Evans must have known about his September 14 interview

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because Evans reminded Henderson about the time when the interview was

supposed to take place.

      The district court granted FedEx’s motion for summary judgment. The

district court concluded that Henderson had failed to establish a causal link

between his protected conduct and the adverse employment action. The district

court explained that Henderson’s March 2005 complaint was too distant in time

from his termination to qualify as a proximate cause. The district court also noted

that there was no evidence that Henderson’s supervisors were even aware of his

September 14, 2005, interview. In any event, the district court determined that

Henderson’s falsification of his time card was a superseding cause that broke any

chain of causation between Henderson’s complaints and his dismissal. Finally,

even if Henderson had been able to establish a prima facie case, the district court

concluded that he had failed to demonstrate that FedEx’s proffered reason for his

termination—that he had falsified his time card—was pretextual.

      Henderson subsequently filed a motion for reconsideration under Rule 59(e)

of the Federal Rules of Civil Procedure. Henderson asserted that the district court

made two principal errors in granting FedEx’s motion for summary judgment.

First, he argued that it was improper for the district court to rely on the videotape

of the time-card incident because the videotape was inadmissible hearsay. Second,

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he contended that the district court had misapplied the legal standard for Title VII

retaliation claims.

      The district court denied Henderson’s motion for reconsideration. The

district court explained that it had not actually reviewed the surveillance

videotape, but rather, had considered the deposition testimony of several FedEx

employees who described what the videotape showed. That testimony was not

hearsay, the district court observed, because it was based on the personal

observations of those witnesses, and because it was offered as evidence of the

decisionmakers’ mindset rather than as proof that Henderson actually had

fabricated his time card. The district court additionally concluded that it had

applied the proper legal standard to Henderson’s retaliation claim.

                                         II.

      We review a district court’s evidentiary rulings for an abuse of discretion.

Corwin v. Walt Disney Co., 475 F.3d 1239, 1249 (11th Cir. 2007). The denial of a

motion for reconsideration is also reviewed for an abuse of discretion. Id. at 1254.

Evidence submitted in support of a summary judgment motion must be based on

personal knowledge and must set out facts that would be admissible under the

Federal Rules of Evidence. Fed.R.Civ.P. 56(c)(4). Inadmissible hearsay cannot

be considered in ruling on a motion for summary judgment. Macuba v. Deboer,

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193 F.3d 1316, 1322 (11th Cir. 1999). Hearsay is defined as “a statement, other

than one made by the declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” Fed.R.Evid. 801(c).

      In this case, the district court did not review the videotape of the time-card

incident. Instead, the district court considered the testimony of Evans, Britton,

and Fuqua, all of whom stated that they had watched the videotape and that the

videotape showed Barnes “clocking in” for Henderson, in violation of FedEx’s

Acceptable Conduct Policy. That testimony was not hearsay because it was based

on the personal observations of those witnesses, rather than on out-of-court

statements made by others. See Fed.R.Evid. 801(c). In addition, the district court

considered that testimony not for the truth of the matter asserted—that Henderson

actually fabricated his time card—but as evidence of the decisionmakers’ state of

mind at the time that they terminated Henderson’s employment. Because the

testimony about the videotape was not hearsay, the district court did not abuse its

discretion by considering it.

                                         II.

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

Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007). Summary judgment

should be granted “if the movant shows that there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.”

Fed.R.Civ.P. 56(a). We view the evidence in the light most favorable to the

non-moving party and draw all reasonable inferences in favor of that party.

Thomas, 506 F.3d at 1363. Nevertheless, to overcome a motion for summary

judgment, the non-moving party must produce more than a scintilla of evidence to

support his position. Young v. City of Palm Bay, Fla., 358 F.3d 859, 860 (11th

Cir. 2004). As noted above, the denial of a motion for reconsideration is reviewed

for an abuse of discretion. Corwin, 475 F.3d at 1254.

      Title VII prohibits an employer from retaliating against an employee who

has “opposed any practice made an unlawful employment practice by [Title VII]”

or who has “made a charge, testified, assisted, or participated in any manner in an

investigation, proceeding, or hearing under [Title VII].” 42 U.S.C. § 2000e-3(a).

Where, as here, a plaintiff relies on circumstantial evidence to prove retaliation,

we apply the burden-shifting framework of McDonnell Douglas Corp. v. Green,

411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Brown v. Ala. Dep’t of

Transp., 597 F.3d 1160, 1181 (11th Cir. 2010). Under McDonnell Douglas, the

plaintiff must first establish a prima facie case of retaliation by showing that:

(1) he engaged in a statutorily protected activity; (2) he suffered an adverse

employment action; and (3) there is a causal connection between his protected

                                           8
activity and the adverse action. Id. If the plaintiff is able to make out a prima

facie case, the burden shifts to the defendant to offer a legitimate reason for the

challenged employment action. Id. The burden then shifts back to the plaintiff to

prove that the proffered legitimate reason is pretextual. Id. at 1181-82.

      This case concerns the causation element of the prima facie case. To

establish causation, a plaintiff must show that: (1) the decisionmakers were aware

of his protected conduct and (2) his protected activity and the adverse employment

action were not wholly unrelated. Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 590

(11th Cir. 2000), abrogated on other grounds by Burlington N. & Santa Fe Ry.

Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Close

temporal proximity between the protected activity and the adverse action may be

sufficient to show that the two were not wholly unrelated. See Thomas, 506 F.3d

at 1364. If there is a delay of more than three months between the two events,

then the temporal proximity is not close enough, and the plaintiff must offer some

other evidence tending to show causation. Id. Intervening acts of misconduct can

break any causal link between the protected conduct and the adverse employment

action. See, e.g., Kiel v. Select Artificials, Inc. 169 F.3d 1131, 1136 (8th Cir.

1999) (en banc) (explaining that the plaintiff’s intervening misconduct “eroded

any causal connection that was suggested by the temporal proximity of his

                                           9
protected conduct and his termination”); cf. Fleming v. Boeing Co., 120 F.3d 242,

248 (11th Cir. 1997) (holding that the plaintiff had failed to establish causation,

even though the employer refused to hire her for a permanent position shortly after

she had filed a complaint of sexual harassment, because it was clear from the

record that the plaintiff failed to meet the employer’s qualifications for permanent

employment).

       In this case, the district court applied the proper legal standards to

Henderson’s retaliation claim. The district court determined that Henderson had

been unable to establish a causal connection between his statutorily protected

activities and his termination. That conclusion is supported by the record

evidence. First, there was a six-month gap between Henderson’s March 21, 2005,

complaint and his September 28, 2005, termination, so Henderson could not rely

solely on temporal proximity to establish a connection between those two events.

See Thomas, 506 F.3d at 1364. Nor did he introduce any other evidence that

linked his March 21 complaint against Evans to his termination. See id.

Therefore, Henderson failed to establish causation with respect to that protected

activity.

       In addition, Henderson was not able to establish a causal link between his

September 14, 2005, interview and his termination. Those events occurred only

                                           10
two weeks apart, which would normally give rise to an inference of causation.

See Thomas, 506 F.3d at 1364. In this case, however, Henderson failed to show

that the decisionmakers were aware of his protected conduct. Although Evans

apparently knew that Henderson was going to speak with someone from human

resources, there was no evidence that Evans ever learned what was said at the

meeting. Thus, Henderson failed to establish that Evans knew that he had engaged

in conduct protected by Title VII during the interview. See Gupta, 212 F.3d at 590

(explaining that a plaintiff must establish the decisionmaker’s knowledge of his

protected activity in order to prove causation). In addition, Henderson’s

falsification of his time card was an intervening act of misconduct that diminished

any inference of causation that may have arisen out of the temporal proximity

between his September 14 interview and his termination. See Kiel, 169 F.3d at

1136. Therefore, the district court appropriately concluded that Henderson had

failed to establish a causal connection between his September 14 interview and his

termination.

      As Henderson failed to establish a prima facie case, it was unnecessary for

the district court to reach the pretext stage, so Henderson’s arguments regarding

pretext are irrelevant. See Brown, 597 F.3d at 1181-82 (noting that pretext

becomes a relevant issue only after the plaintiff has established a prima facie

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case). Because the district court properly evaluated Henderson’s Title VII

retaliation claim, we affirm the grant of summary judgment with respect to that

claim. We also affirm the denial of Henderson’s motion for reconsideration

because that motion failed to identify any errors in the district court’s summary

judgment order.

      AFFIRMED.




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