              Case: 17-11597   Date Filed: 01/12/2018   Page: 1 of 9


                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 17-11597
                            Non-Argument Calendar
                          ________________________

                   D.C. Docket No. 3:15-cv-00926-CDL-TFM

SHAWN BELL,

                                                             Plaintiff - Appellant,

                                      versus

CITY OF AUBURN, ALABAMA,

                                                            Defendant - Appellee.

                          ________________________

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

                               (January 12, 2018)

Before TJOFLAT, MARCUS and NEWSOM, Circuit Judges.

PER CURIAM:

      Shawn Bell, an African-American male, appeals from the district court’s

grant of the defendant’s motion for summary judgment in his employment

discrimination action brought pursuant to 42 U.S.C. § 1981, which alleged that the
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City of Auburn, Alabama (“the City”) fired him in retaliation for reporting race

discrimination.   On appeal, Bell argues that: (1) the district court abused its

discretion by disregarding a sworn declaration he submitted in opposition to

summary judgment; and (2) the district court erred in determining that he could not

make a prima facie case of retaliation. After thorough review, we affirm.

      We review a district court’s decision to strike an affidavit as a “sham” for

abuse of discretion, which means that it “rests upon a clearly erroneous finding of

fact, an errant conclusion of law, or an improper application of law to fact.”

Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1306 (11th Cir. 2016). We

review a district court’s grant of summary judgment de novo. Id. at 1303. A grant

of summary judgment will be affirmed 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). In making this determination, we “view all of the evidence in the

light most favorable to the nonmoving party and draw all reasonable inferences in

that party’s favor.” Furcron, 843 F.3d at 1304.

      First, we are unpersuaded by Bell’s claim that the district court abused its

discretion by disregarding a sworn declaration he proffered to oppose summary

judgment. In limited circumstances, a district court can disregard an affidavit as a

matter of law when, without explanation, it flatly contradicts the affiant’s own

prior deposition testimony for the transparent purpose of creating a genuine issue


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of fact where none existed previously.        Id. at 1306.     For an affidavit to be

disregarded as a sham, a party must have given clear answers to unambiguous

questions that negated the existence of any genuine issue of material fact. Van T.

Junkins & Assocs. v. U.S. Indus., 736 F.2d 656, 657 (11th Cir. 1984). We’ve

noted that “[a] definite distinction must be made between discrepancies which

create transparent shams and discrepancies which create an issue of credibility or

go to the weight of the evidence.” Tippens v. Celotex Corp., 805 F.2d 949, 953

(11th Cir. 1986) (reversing a sham affidavit ruling where discrepancies in an

affiant’s testimony affected his credibility and persuasiveness, but were not so

inherently inconsistent that his affidavit had to be disregarded as a matter of law).

      Here, the district court did not abuse its discretion by disregarding portions

of Bell’s sworn declaration as a “sham.” As background, Bell’s complaint alleged

that he had been employed as a recycling collector for the City, but the City had

terminated him in retaliation for complaining to the City’s human resources

department (“HR”) that his supervisor, Oscar Gilmore, had called him “boy.”

Later, in a deposition, when Bell testified that he felt discriminated against by

Gilmore’s comment, he explained that he meant the comment discredited his

manhood, that he was a man, that he did not think a man should talk to another

man like that, and that he did not like the way that Gilmore had spoken to him.

Bell never testified in his deposition that he believed Gilmore made the comment


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because of his race, or that he was complaining of racial discrimination when he

went to HR. In fact, during the deposition, the City directly asked Bell if he

believed that Gilmore was “being racial” when he called him “boy,” and Bell

replied “[n]o.” After the deposition, however, Bell submitted a sworn declaration,

in which he averred that he believed that Gilmore’s “boy” comment was “racially

discriminatory and degrading,” and that he complained to HR specifically of racial

discrimination on that basis. Bell said that he would not have complained if he had

not honestly believed the comment to be racially discriminatory.

      As the record reveals, the statement in Bell’s sworn declaration that he

understood Gilmore’s comment to be racially discriminatory and that he was

complaining of racial discrimination when he went to HR directly contradicted the

clear answer he gave to an unambiguous question in his deposition that he did not

believe Gilmore was “being racial.” See Van T. Junkins, 736 F.2d at 657. The

explicitness of this contradiction created an inherent inconsistency with Bell’s

prior testimony, and amounted to a transparent effort to create a genuine issue of

fact, affecting more than his credibility or persuasiveness. See Tippens, 805 F.2d

at 953. Further, we cannot say Bell was merely defining discrimination because he

had already defined what he meant by discrimination in his deposition testimony --

that the comment discredited his manhood. See id. Thus, the district court did not




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abuse its discretion when it disregarded the unexplained and contradictory parts of

Bell’s declaration. See Furcron, 843 F.3d at 1306.

      We also find no merit to Bell’s claim that the district court erred in

determining that he could not make a prima facie case of retaliation. The Civil

Rights Act of 1866 guarantees to all persons the same right “to make and enforce

contracts . . . as is enjoyed by white citizens . . . .” 42 U.S.C. § 1981. In an

employment context, § 1981 protects against discrimination on the basis of race.

Johnson v. Ry. Express Agency, 421 U.S. 454, 459-60 (1975). Retaliation claims,

including employment-related retaliation claims, are cognizable under § 1981,

despite the fact that the statute contains no explicit retaliation provision. CBOCS

West, Inc. v. Humphries, 553 U.S. 442, 452-57 (2008).

      The same requirements of proof apply to 42 U.S.C. § 1981 and Title VII, 42

U.S.C. § 2000e-3(a), and both use the same analytical framework. Standard v.

A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). Thus, to establish a

prima facie case of retaliation, a plaintiff may show that: (1) he engaged in a

statutorily protected activity; (2) he suffered a materially adverse action; and (3)

there was a causal connection between the protected activity and the materially

adverse action. Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir.

1993); see also Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68-69 (2006).

To meet the first prong -- statutorily-protected activity -- a plaintiff must show that


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he had a good faith, reasonable belief that the employer was engaged in unlawful

employment practices, which, in the § 1981 context, must be racial discrimination.

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

United Techs., Carrier Transicold Div., 103 F.3d 956, 961 (11th Cir. 1997). So, to

constitute protected activity under § 1981, a plaintiff would be required, in part, to

subjectively believe that the unlawful employment practice complained of was

racial discrimination. See Furcron, 843 F.3d at 1311; Little, 103 F.3d at 961. As

for the third prong -- a causal connection between protected activity and a

materially adverse action -- “[a]t a minimum, a plaintiff must generally establish

that the employer was actually aware of the protected expression at the time it took

adverse employment action.” Clover v. Total Sys. Servs., Inc., 176 F.3d 1346,

1354 (11th Cir. 1999) (quotation omitted).        While close temporal proximity

between the protected activity and the adverse action is circumstantial evidence

that may be sufficient to show that the two were not wholly unrelated, “temporal

proximity alone is insufficient to create a genuine issue of fact as to causal

connection where there is unrebutted evidence that the decision maker did not have

knowledge that the employee engaged in protected conduct.”               Brungart v.

BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000) (Family and

Medical Leave Act (“FMLA”) retaliation context); Clover, 176 F.3d at 1354.




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      Here, for Bell to establish protected activity for a § 1981 violation, he was

required to show that he subjectively believed that he was reporting that the City

engaged in racial discrimination when he complained to HR that his supervisor had

called him “boy.” See 42 U.S.C. § 1981; Furcron, 843 F.3d at 1311; Little, 103

F.3d at 961. However, as we’ve already detailed, Bell cannot do so -- he testified

in his deposition that he believed Gilmore’s “boy” comment was discriminatory

because it discredited his manhood, and when explicitly asked if he believed that

Gilmore was “being racial” when he called him “boy,” and he replied “[n]o.” Bell

also complained in his deposition about being denied overtime. But again, Bell

cannot identify any evidence in the record that he believed he was denied overtime

on account of his race, or that he reported that he was being denied overtime on

account of his race. See Furcron, 843 F.3d at 1311; Little, 103 F.3d at 961. At no

point in his deposition or in his sworn declaration did he say that the City denied

him overtime on account of his race; rather, he said he had complained that

overtime was only being given to individuals with certain kinds of commercial

drivers’ licenses. On this record, the district court properly found that Bell did not

engage in statutorily protected activity. See Goldsmith, 996 F.2d at 1163.

      The district court also correctly held that Bell had not established that any

protected activity was causally connected to his termination -- the third element of

a prima facie case of retaliation. Here, Tim Woody, the environmental services


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director, testified in his deposition and stated in his affidavit that he was unaware

that Bell had complained to HR of race discrimination at the time he decided to

terminate him.    Whatever temporal proximity there was between Bell’s HR

complaint and his firing, therefore, could not establish a causal connection between

the two. See Brungart, 231 F.3d at 799. Further, Bell’s suggestion that others

could have told Woody he complained about being called “boy” is the exact type

of speculation we’ve rejected before. See Clover, 176 F.3d at 1355 (noting that

“could have told” is not the same as “did tell,” and amounts to pure speculation).

      Finally, even assuming that Bell’s cited evidence did indicate that Woody

departed from City policy in terminating him, that Woody treated him more

harshly than other employees, and that the City subsequently listed fewer reasons

for his firing than those provided by Woody, it still does not establish that Woody

was actually aware of his protected expression. In the § 1981 context, Woody

must have been actually aware that not only had Bell complained to HR, but that

he had complained specifically of racial discrimination. See Clover, 176 F.3d at

1354; Johnson, 421 U.S. at 459-460. Here, Bell’s circumstantial evidence was

insufficient to show that, as a matter of law, Woody was lying when he

unequivocally stated that he was unaware of any complaints of racial

discrimination at the time he terminated Bell. See Brungart, 231 F.3d at 799.




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      In short, because Bell did not establish at least two prongs of a prima facie

case of retaliation, the district court did not err in granting summary judgment in

favor of the City. See Goldsmith, 996 F.2d at 1163.

      AFFIRMED.




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