                   Case: 11-12488          Date Filed: 11/13/2012   Page: 1 of 11

                                                                        [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________

                                            No. 11-12488
                                        Non-Argument Calendar
                                      ________________________

                            D.C. Docket No. 3:09-cv-00863-HLA-JBT



PASCHAL ANYANWU,

llllllllllllllllllllllllllllllllllllllll                             Plaintiff - Counter
llllllllllllllllllllllllllllllllllllllll                             Defendant - Appellant,

                                                 versus

BRUMOS MOTOR CARS, INC.,

llllllllllllllllllllllllllllllllllllllll                             Defendant - Counter
llllllllllllllllllllllllllllllllllllllll                             Claimant - Appellee.

                                     ________________________

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

                                           (November 13, 2012)

Before MARCUS, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:
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       Paschal Anyanwu, proceeding pro se, appeals the district court’s order

granting summary judgment in favor of his former employer, Brumos Motor Cars,

Inc. (Brumos), on his claims of racial discrimination and retaliatory discharge

under Title VII of the Civil Rights Act of 1964 and 42 U.S.C. § 1981. The district

court found that Brumos was entitled to judgment as a matter of law on the merits

and, in the alternative, that Anyanwu’s claims were time-barred. After careful

review, we affirm.1

                                               I.

       Anyanwu, a black male, began working as a car salesman for Brumos in

2004. In his complaint, Anyanwu alleged that he was not allowed to park his

Ferrari in the employee parking lot because of racial discrimination. Brumos

permitted him to park several other vehicles he owned in the employee lot, but not

his Ferrari. Beginning in December 2007, Brumos allowed him to park the Ferrari

on site, but only after he signed a form that released Brumos from any liability

associated with parking the car on company property. According to Anyanwu,

Brumos permitted white employees to park cars similar to the Ferrari on company

property without signing a release.



       1
         Because we affirm the district court’s order on the merits, we deny Brumos’s motion to
dismiss this appeal with prejudice as moot.

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      Anyanwu also claimed he was terminated in retaliation for his opposition to

this racial discrimination. Brumos responded that it terminated him for violating

its harassment policy. Specifically, in November 2007, a Brumos employee filed a

sexual harassment complaint alleging that Anyanwu slapped her on the forehead

and pushed her. The Director of Human Resources at Brumos gave Anyanwu a

written warning that any future harassment would be grounds for termination.

And in January 2008, another Brumos employee filed a sexual harassment

complaint against Anyanwu alleging he made inappropriate comments and phone

calls. Brumos investigated the matter and fired Anyanwu on January 21, 2008.

      Anyanwu denied the harassment allegations and claimed that Brumos’s

proffered reason for terminating him, violations of its harassment policy, was

pretextual. The district court granted summary judgment in favor of Brumos. The

court found that Anyanwu’s Title VII claims were time-barred and, in the

alternative, that Anyanwu could not establish a prima facie case of discrimination

nor rebut Brumos’s non-discriminatory reason for terminating him. The court

ruled that even if Anyanwu had properly advanced a 42 U.S.C. § 1981 claim, it

would fail on the merits. This is Anyanwu’s appeal.

                                        II.

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

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Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010). Summary

judgment is proper “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).

       “We draw all factual inferences in a light most favorable to the non-moving

party.” Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). “Pro se

pleadings are held to a less stringent standard . . . and will . . . be liberally

construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).

A plaintiff cannot defeat summary judgment, however, by relying upon conclusory

assertions. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997). Rather,

“[a] party asserting that a fact . . . is genuinely disputed must support the assertion

by . . . citing to particular parts of materials in the record.” Fed. R. Civ. P.

56(c)(1); see also Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th

Cir. 1995) (en banc) (“There is no burden upon the district court to distill every

potential argument that could be made based upon the materials before it on

summary judgment.”). “[W]e may affirm the district court’s decision on any

adequate ground, even if it is other than the one on which the court actually

relied.” Parks v. City of Warner Robins, Ga., 43 F.3d 609, 613 (11th Cir. 1995).

                                            III.

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A.    Anyanwu’s Racial Discrimination Claim

      Anyanwu argues that Brumos’s decisions to prohibit him from parking his

Ferrari in the employee parking lot and, later, to permit him to park the Ferrari

only if he signed a release of liability constituted racial discrimination under Title

VII. We disagree.

      Under Title VII, it is unlawful for an employer to “discriminate against any

individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s race . . . .” 42 U.S.C. § 2000e-2(a). A

plaintiff may prove a Title VII claim either with direct or circumstantial evidence.

Hinson v. Clinch Cnty., Ga. Bd. of Educ., 231 F.3d 821, 827 (11th Cir. 2000).

“[O]nly the most blatant remarks, whose intent could be nothing other than to

discriminate on the basis of [race] will constitute direct evidence of

discrimination.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354,

1359 (11th Cir. 1999) (internal quotation marks omitted). And “remarks by non-

decisionmakers or remarks unrelated to the decisionmaking process itself are not

direct evidence of discrimination.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d

1318, 1330 (11th Cir. 1998).

      The district court correctly found that Anyanwu had not presented any

direct evidence of discrimination. Although, according to Anyanwu, managers at

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Brumos regularly used racial epithets, Anyanwu did not point the district court to

any evidence indicating that these remarks were related to the decisonmaking

process for the parking prohibition. See id. And the other comments Anyanwu

references do not unambiguously refer to his race. Thus, he must rely on

circumstantial evidence to establish his disparate treatment claim.

      In evaluating circumstantial evidence, we use the McDonnell Douglas

burden-shifting framework whereby the plaintiff must first establish a prima facie

case of discrimination. Crawford v. Carroll, 529 F.3d 961, 975-76 (11th Cir.

2008). To establish a prima facie case of racial discrimination on the basis of

disparate treatment, the plaintiff must show: (1) he is a member of a protected

class; (2) he was subjected to an adverse employment action; (3) his employer

treated similarly situated employees more favorably; and (4) he was qualified to do

the job. Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). To show an

adverse employment action, the plaintiff must show “a serious and material

change in the terms, conditions, or privileges of employment,” which would be

viewed as such “by a reasonable person in the circumstances.” Davis v. Town of

Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001). Once a plaintiff

establishes a prima facie case, the employer may articulate a legitimate, non-

discriminatory reason for its action. Brooks v. Cnty. Comm’n of Jefferson Cnty.,

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Ala., 446 F.3d 1160, 1162-63 (11th Cir. 2006). Then the plaintiff must offer

significantly probative evidence that the proffered reason is a pretext for

discrimination. Id.

      The district court in this case correctly found that Brumos’s prohibition on

Anyanwu parking his Ferrari in the employee lot, and later permitting him to do so

only if he signed a release of liability, were not adverse employment actions, and

thus, Anyanwu had not made out a prima facie discrimination case. Anyanwu was

allowed to park multiple vehicles, including two Mercedes-Benz cars, in the

employee lot without signing a liability release. Anyanwu argues that Brumos’s

prohibition was material because driving a luxury car to work was a symbol of

success that affected his ability to sell luxury cars. But he does not point to any

evidence that the cars he could drive to work without signing a release of liability

would be so inadequate that a reasonable person in his position would consider the

parking prohibition a materially adverse employment action. Davis, 245 F.3d at

1239. And, of course, Anyanwu ultimately could still drive his Ferrari to work

after he signed the release.

      Because Anyanwu has not shown that the parking prohibition or the

requirement that he sign a release of liability to park his Ferrari in the employee lot

were material adverse employment actions, he has failed to establish a prima facie

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case of racial discrimination under Title VII.

B.    Anyanwu’s Retaliation Claim

      Anyanwu alleges that his termination from Brumos was in retaliation for

complaining about racial discrimination and that Brumos’s proffered explanation

for his termination — violations of its harassment policy — was merely a pretext

for discrimination. As with his disparate treatment claim, Anyanwu did not point

to any competent direct evidence of discrimination. Therefore, the McDonnell

Douglas framework is appropriate for this claim.

      Even assuming that Anyanwu established a prima facie case of retaliation,

he has not offered any evidence that Brumos’s reasons for termination were

pretextual. “[A] reason cannot be proved to be a pretext for discrimination unless

it is shown both that the reason was false, and that discrimination was the real

reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (internal

quotation marks omitted). “An employer who fires an employee under the

mistaken but honest impression that the employee violated a work rule is not liable

for discriminatory conduct.” Damon, 196 F.3d at 1363 n.3.

      Here, two Brumos employees filed sexual harassment complaints, supported

by affidavits taken shortly thereafter, which Brumos investigated and found to be

credible. Anyanwu was warned after the first complaint, but before the second,

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that any future harassment would constitute grounds for termination. After the

investigation, Brumos concluded that Anyanwu’s conduct violated its harassment

policy and terminated him.

      Anyanwu argues primarily that Brumos’s investigation into the complaints

was a sham and that he is innocent of the harassment charges, citing affidavits of

co-workers who stated that they did not think Anyanwu would have sexually

harassed anyone. But he provides no evidentiary support for his contention that

the investigation was a sham. And, even if he did not commit the harassment

charged, the record indicates that Brumos honestly investigated the harassment

and reasonably terminated him as a result. Anyanwu has not provided adequate,

probative evidence to the contrary.

      Anyanwu also argues that the close temporal proximity between his

complaints about the parking prohibition and his termination suggests that

Brumos’s proffered explanation was pretextual. See Hurlbert v. St. Mary’s Health

Care Sys., 439 F.3d 1286, 1298 (11th Cir. 2006) (holding close temporal

proximity of two weeks between protected conduct and termination was “evidence

of pretext, though probably insufficient to establish pretext by itself”). Even if

Anyanwu engaged in statutorily protected activity by opposing racial

discrimination in mid-December 2007, which was just under a month before he

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was placed on administrative leave and ultimately fired, the second harassment

claim — which he had been warned could lead to his termination — came after his

complaints and only days before he was placed on leave. Thus, the temporal

proximity between Anyanwu’s complaints and his termination does not alone

suggest Brumos’s reasons were pretextual. Id. Rather, the proximity between the

harassment complaints and Anyanwu’s termination indicates that Brumos’s reason

was legitimate.

       Because Anyanwu has not shown that Brumos’s legitimate, non-

discriminatory reason for terminating him was a pretext for discrimination, his

retaliation claim fails.

                                          IV.

       Anyanwu challenges the district court’s conclusion that he did not properly

raise a claim under 42 U.S.C. § 1981. Racial discrimination and retaliation claims

are cognizable under both Title VII and 42 U.S.C. § 1981, and they “have the

same requirements of proof and use the same analytical framework.” Standard,

161 F.3d at 1330. Thus, even assuming Anyanwu properly raised § 1981 claims,

they fail for the same reasons his Title VII claims fail.

                                          V.

       The district court properly granted summary judgment in favor of Brumos

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on Anyanwu’s discrimination and retaliation claims; accordingly, we affirm.2 We

deny Brumos’s motion to dismiss this appeal as moot.

       AFFIRMED.




       2
        Because we affirm the grant of summary judgment on the merits of the Title VII claim,
we do not address the timeliness issue.

                                              11
