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                                                        [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-16431
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 3:14-cv-00147-TCB



ROBERT D. TYLER,

                                                Plaintiff - Appellant,

versus

KIA MOTORS MANUFACTURING GEORGIA, INC.,

                                                Defendant - Appellee.

                       ________________________

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

                              (July 12, 2017)

Before JORDAN, JULIE CARNES, and JILL PRYOR, Circuit Judges.

PER CURIAM:
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      Robert Tyler appeals the district court’s grant of summary judgment in favor

of Kia Motors Manufacturing Georgia, Inc. on his retaliation claim under Title VII,

42 U.S.C. § 2000e-3, and 42 U.S.C. § 1981. Mr. Tyler alleged that Kia retaliated

against him after he engaged in the protected activity of reporting the company’s

discriminatory practices. On appeal, Mr. Tyler argues that the district court erred

by granting Kia’s motion for summary judgment because the company failed to

offer legitimate, non-retaliatory reasons for suspending and terminating his

employment.     Kia, in response, asserts that Mr. Tyler was investigated for

improperly downloading and copying company documents, that he forwarded

proprietary documents to a personal email account without permission, that he

failed to return the documents to Kia, and that he has not provided evidence

demonstrating that its proffered reasons for termination were pretextual.

      After review of the record and consideration of the parties’ briefs, we affirm.

                                         I

      Because we write for the parties, we assume their familiarity with the

underlying record and recite only what is necessary to resolve this appeal.

      Kia hired Mr. Tyler as a human resources manager in 2007.                  His

responsibilities at Kia included recruitment of employees, resolving issues between

employees, managing grievances filed against the company, addressing




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discrimination-related issues, and establishing systems to monitor and manage

certain affirmative action data as required by law.

      Despite receiving several promotions and raises within his first three years at

Kia, Mr. Tyler was unhappy with some of the company’s hiring and management

practices. In September of 2010, Mr. Tyler filed a report with his supervisor,

Randy Jackson, outlining his concerns about the company’s hiring practices and

mistreatment of several employees. Two months later, he filed a discrimination

charge with the Equal Employment Opportunity Commission, alleging

discrimination (based on national origin) and retaliation in violation of Title VII,

because Kia executives purportedly made threatening remarks regarding the

security of his job based on his initial report.

      During his employment, Mr. Tyler was given secure virtual private network

access in order to work remotely and to access confidential documents like

attorney-client communications, personnel files, and internal investigation reports

without having to download or copy confidential materials. Mr. Tyler signed a

confidentiality agreement indicating that he understood his access to sensitive

information was limited, and that he was not permitted to copy Kia’s documents

because the information was confidential and the company relies on such data to

maintain its competitive position.




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       In late November of 2010, Mr. Tyler requested additional detailed

confidential information from another human resources employee. The employee

was not aware of Mr. Tyler’s EEOC charge, but reported his request for documents

to Mr. Jackson. Concerned that Mr. Tyler was acting outside of his job

responsibilities (and Kia’s interests), Mr. Jackson asked him to sign a conflict of

interest agreement barring him from “seek[ing] . . . files or documents that relate in

any way to the merits of [his] claim . . . against . . . [Kia].” D.E. 56-18.1

       After Mr. Tyler signed the agreement, another employee (who also had a

pending EEOC charge against Kia) refused to sign a similar agreement. As a

result, Mr. Jackson asked Kia’s information technology department to review all

recent network downloads. As part of the company-wide review, Kia discovered

that Mr. Tyler had downloaded several company documents onto his personal

computer without authorization. This violated Mr. Tyler’s original confidentiality

agreement and Kia’s information technology user policy, as well as the conflict of

interest agreement that he had just signed. Mr. Tyler was not punished for the first

violation, but Mr. Jackson gave him a new computer and the company continued to

monitor his actions. Two weeks later, Mr. Tyler downloaded additional documents

without permission, and he was officially suspended on December 16, 2010.


1
  Mr. Tyler says that he signed the agreement two days after receiving it. But he also maintains
that Kia’s in-house counsel confirmed that he could continue to access and download company
documents according to the parameters of his previous authorization. See D.E. 49 at 89.
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          Soon after the suspension, Mr. Tyler’s attorney received an email from Kia

requesting that all proprietary documents be returned.                      Mr. Tyler failed to

completely comply with that request and only returned fifteen documents. Kia

subsequently learned that Mr. Tyler had forwarded hundreds of emails and

documents from secure company networks to his personal computer between June

of 2010 and December of 2010 by blind copying his personal email account. 2

          Because Mr. Tyler failed to return all of the company’s documents, Kia

terminated his employment in January of 2011. One month later, Mr. Tyler filed a

second EEOC charge containing similar allegations—that Kia retaliated against

him for reporting the company’s potentially discriminatory practices.

          In April of 2014, the EEOC issued a dismissal and notice of rights to

Mr. Tyler because it was “unable to conclude that the information obtained

establishe[d] violations of the statutes.” See D.E. 56-11 at 2. Mr. Tyler then

commenced this Title VII retaliation action in state court.

          Kia removed Mr. Tyler’s complaint to federal court and moved for summary

judgment after discovery. A magistrate judge issued a report recommending that

the district court enter summary judgment in favor of Kia. Over Mr. Tyler’s

objections, the district court adopted the magistrate judge’s report and

recommendation, reasoning that although Mr. Tyler established a prima facie case


2
    In 2012, Mr. Tyler returned over 20,000 files to Kia pursuant to a court order.
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of retaliation under Title VII, Kia provided a legitimate, non-retaliatory reason for

his suspension “‘pending the outcome’ of an investigation into [his] downloading

of documents and the unauthorized removal of proprietary documents,” see D.E.

72 at 6, and for his termination because he subsequently failed to comply with

Kia’s requests that he return all proprietary documents. The district court then

concluded that Mr. Tyler failed to show that Kia’s proffered reasons were

pretextual.

      Mr. Tyler now appeals.

                                         II

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

of Kia. See Holloman v. Mail-Well Corp., 443 F.3d 832, 836 (11th Cir. 2006).

“Summary judgment is appropriate when the evidence, viewed in the light most

favorable to the nonmoving party, presents no genuine issue of material fact and

compels judgment as a matter of law in favor of the moving party.” Id. at 836–37;

Fed. R. Civ. P. 56(a).

                                         III

      Title VII prohibits an employer from retaliating against an employee for

“opposing any practice” made unlawful by Title VII. See 42 U.S.C. § 2000e-3(a).

Cf. CBOCS W., Inc. v. Humphries, 553 U.S. 442, 457 (2008) (holding that “42

U.S.C. § 1981 encompasses claims of retaliation”). Where, as here, there is only


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circumstantial evidence of retaliation, we use the burden-shifting framework of

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), to analyze a Title VII

and § 1981 retaliation claim. See Bryant v. Jones, 575 F.3d 1281, 1307 (11th Cir.

2009). This means that Mr. Tyler was required to first establish a prima facie case

“by showing that: (1) he engaged in a statutorily protected activity; (2) he suffered

an adverse employment action; and (3) he established a causal link between the

protected activity and the adverse action.” See id. at 1307–08.

      The burden then shifts to the employer to articulate a legitimate,

non-retaliatory reason for the challenged adverse action. See McCann v. Tillman,

526 F.3d 1370, 1375 (11th Cir. 2008) (citation omitted). If the employer meets

this burden, the inference of retaliation drops out of the case, and the plaintiff bears

the burden of demonstrating that the employer’s proffered reason for its decision

was pretextual. See Bryant, 575 F.3d at 1308. In other words, an employee needs

to demonstrate “such weaknesses . . . or contradictions in the employer’s proffered

legitimate reasons for its action that a reasonable factfinder could find them

unworthy of credence.” See McCann, 526 F.3d at 1375.

      In this case, Mr. Tyler argues that the district court erred by granting

summary judgment in favor of Kia for three main reasons. First, he contends that

his suspension was an adverse employment action and that Kia did not offer a

legitimate, non-retaliatory reason for the suspension. Second, Mr. Tyler asserts


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that the record demonstrates that his actions were authorized. Third, Mr. Tyler

claims that he rebutted Kia’s non-retaliatory reasons for suspending and

terminating his employment by showing that Kia would never have questioned his

actions if he had not reported the company’s alleged discriminatory practices.

                                         A

      Mr. Tyler’s first argument is that his suspension (which led to his

termination) was an adverse employment action and that Kia did not provide a

specific, non-retaliatory reason for suspending him. We agree with Mr. Tyler that

a suspension that results in termination is an adverse employment action. See, e.g.,

Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001)

(describing an adverse employment action as one that causes “a significant change

in employment status, such as hiring, firing, failing to promote, [or] reassignment

with significantly different responsibilities”) (emphasis in original). We disagree,

however, that the district court failed to consider whether Kia had a legitimate

reason for the suspension.

      In a thorough report and recommendation, the magistrate judge expressly

referenced Kia’s reason for suspension—“remov[al] [of] proprietary documents,”

see D.E. 68 at 54—and discussed the events that led to Kia’s investigation and

discovery of Mr. Tyler’s downloading and copying activities. Following

Mr. Tyler’s objections to the magistrate judge’s report and recommendation, the


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district court agreed that Kia had pointed to the investigation and retrieval of

documents as a reason for suspending Mr. Tyler, and explained that although

Mr. Tyler showed that he was given remote access to company information, he had

not demonstrated that he had authority to download and copy company documents.

      Like the district court, we conclude that Kia met its burden of production,

see McCann, 526 F.3d at 1375, by explaining that Mr. Tyler was investigated for

improperly downloading proprietary documents and that the investigation revealed

that he had been copying sensitive materials to a personal email account over a

five-month period. Additionally, as the magistrate judge pointed out, Mr. Tyler

was not actually suspended until mid-December, after he was caught downloading

documents a second time, in direct contravention of the company’s IT policy and

the conflict of interest agreement he had signed. Because Kia met its burden,

Mr. Tyler was therefore required to persuasively show that Kia’s proffered reason

for his suspension was pretextual. See id.

                                         B

      Mr. Tyler’s second argument is that Kia authorized him to download and

copy company documents throughout his employment. To support this claim,

Mr. Tyler makes a conclusory statement that he “offered irrefutable evidence

showing that his direct supervisor, [Mr.] Jackson, gave [him] remote access to all

[Kia] files and that [he] was also authorized to copy files to memory sticks and


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flash drives.” Br. of Appellant at 18. But Mr. Tyler does not cite to the record to

support this argument. Moreover, he has not tried to cast doubt on other evidence

that tends to show that his actions were unauthorized.

      First, Mr. Tyler testified in his deposition that he had signed a confidentiality

agreement as a condition of his employment and a form that required his

acknowledgment that he was not permitted to copy any information on Kia’s

internal networks. The parties do not dispute that, because of the nature of his job,

Mr. Tyler was given permission to review and maintain confidential records. He

has not provided any evidence, however, demonstrating that he was authorized to

copy (or download) those records onto his personal computer or to blind copy

sensitive matters to his personal email address.

      Second, the undisputed fact that Mr. Jackson had approved Mr. Tyler’s

remote access request does not create an inference that he knew that Mr. Tyler was

regularly downloading and copying materials.          Mr. Tyler apparently equates

Mr. Jackson’s remote access approval as knowledge and authorization for copying

and downloading, but we, like the district court, do not think that Mr. Tyler has

cited evidence demonstrating that Mr. Jackson (or anyone at Kia) authorized him

to download and transmit company documents to his personal email account.

Indeed, the record indicates that Mr. Tyler submitted a request to use portable

storage devices in order to work from home, see D.E. 56-12 at 2, and that he had


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permission to remotely access company files he needed for his job while remaining

inside Kia’s secured network.

       Third, the record shows that Mr. Tyler was involved in the approval process

for Kia’s user information technology policy, which took effect in July of 2009,

over one year before Kia began investigating his actions. That policy included

language prohibiting the copying of proprietary documents and warning Kia’s

team members that any violation could lead to termination or other civil or

criminal liability. Instead of pointing to evidence showing that he was authorized

to essentially violate the IT policy, Mr. Tyler downplays the significance of the

policy. 3

       Fourth, approximately two weeks after signing the conflict of interest of

agreement and receiving a new computer, Mr. Tyler downloaded additional files

without permission. He does not cite to any portion of the record to rebut Kia’s

position that his suspension directly followed a second violation of the company’s

IT policy and the conflict of interest agreement.

       On this record, we conclude that the evidence, viewed in the light most

favorable to Mr. Tyler, does not demonstrate (or create an issue of fact) that he was



3
  Mr. Tyler testified in his deposition that Kia’s policy “was never formally communicated to
team members,” see D.E. 49 at 102, but that does not rebut Kia’s position that he was acting
outside of his authorized capacity (and in direct contravention of the policy) by downloading and
blind copying company documents to a personal email account.
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authorized to download and copy Kia’s company materials to his personal

computer and email account.

                                         C

      Mr. Tyler’s third argument is that he rebutted Kia’s non-retaliatory reasons

for suspending and terminating his employment by showing that Kia would never

have questioned his downloading activities had he not reported the company’s

alleged discriminatory practices.      At this stage of the McDonnell-Douglas

burden-shifting framework, the inference of retaliation has been removed, see

Bryant, 575 F.3d at 1308, and Mr. Tyler was therefore required to provide

evidence creating a genuine issue of material fact that all of Kia’s “legitimate

reason[s] for [its] employment decision[s] w[ere] pretextual.” See McCann, 526

F.3d at 1376. In other words, Mr. Tyler needed to address his improper actions

and “meet [each of Kia’s] reason[s] head on and rebut” them. See Chapman v. AI

Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc). Mr. Tyler has not done

that here.

      In support of his position, Mr. Tyler points to his suspension letter and the

conflict of interest agreement, and says that those documents demonstrate that

Kia’s only purpose for suspending him was to prevent him from collecting

evidence to support his EEOC charges against Kia.          But Mr. Tyler does not

provide      any   evidence   demonstrating   “weaknesses,    implausibilities,   [or]


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inconsistencies,” see McCann, 526 F.3d at 1375, related to Kia’s claims (1) that the

company-wide investigation was triggered by another employee’s refusal to sign a

conflict of interest agreement; (2) that Mr. Tyler continually violated company

policy by downloading and copying confidential matters to his personal email

account; (3) that Mr. Tyler was first given a clean computer and then suspended

because of a second violation of company policy; or (4) that Mr. Tyler was

terminated directly following his refusal to return all proprietary documents.

Given that Mr. Tyler has not even attempted to address each of Kia’s reasons head

on, we conclude that he has failed to provide sufficient evidence for a jury to find

pretext here.4

                                               IV

       Because Mr. Tyler has not shown that Kia’s legitimate, non-retaliatory

reasons for suspending and terminating his employment were pretextual, we affirm

the district court’s grant of summary judgment in favor of Kia.

       AFFIRMED.




4
  Mr. Tyler also cites to three cases discussing how temporal proximity of a protected action (like
filing an EEOC charge) and adverse employment actions may establish a causal connection.
While temporal proximity may be sufficient to establish the causal connection element of a
prima facie case of retaliation, see Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1278
(11th Cir. 2008), that element is no longer in dispute. We therefore decline to address that
portion of his argument.
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