Samuel R. Hayes, III v. ATLHAWKS, LLC

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 1 of 29

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 20-10169

Non-Argument Calendar

________________________

D.C. Docket No. 1:17-cv-02510-MLB

SAMUEL R. HAYES, III,

Plaintiff-Counter Defendant-Appellant,

versus

ATL HAWKS, LLC,

JASON PARKER,

Defendants-Counter Claimants-Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(February 4, 2021)

Before BRANCH, GRANT, and LUCK, Circuit Judges.

PER CURIAM:

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 2 of 29

Samuel Hayes appeals the district court’s grant of summary judgment in

favor of his former employer, ATL Hawks, and his former supervisor, Jason

Parker, in his employment action asserting claims of discrimination based on race

and retaliation under 42 U.S.C. § 1981. Hayes also appeals the district court’s

order striking some of his summary judgment-related filings for failing to follow

the district court’s local rules. We affirm.

I. Background

Hayes began working for ATL Hawks in August 2016 as a Security

Manager. He was hired by Jason Parker, the Vice President of Customer Service

and Operations. Hayes was responsible for physical security and managing the

security officers who worked in Philips Arena.

A. Complaints About Hayes’s Behavior

One month into Hayes’s employment, Parker began receiving complaints

about Hayes from other employees, specifically that he was rude, intimidating, and

“dismissive or aggressive” towards other employees or security personnel

employed by the artists performing in Philips Arena. On each occasion, Hayes

received a verbal reprimand and one of his supervisors met with him to discuss his

behavior. During a meeting on October 17, 2016, Hayes alleges that Parker told

him that people perceive him as aggressive because he is “a large black man with

2

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 3 of 29

an intimidating voice and commanding presence,” and Parker advised Hayes to be

mindful of his tone. 1

On November 1, 2016, Parker and Tony Donato, the Vice President of

Human Resources, met with Hayes because Parker and Donato had received more

than 18 complaints about Hayes from other employees, and they had a lengthy

conversation with Hayes about Hayes’s rude and aggressive interactions with other

co-workers raised in the complaints. On November 6, Parker learned that Hayes

tried to bring a ticketed guest to a show through a loading dock and without

following proper protocols. Parker investigated and confirmed that the allegation

was true. Parker also learned on November 6 that there was a rumor circulating

that Hayes “vowed” to keep a security coordinator and the security systems

manager from conversing with or directing staff because Hayes believed the two

were racists. The security systems manager asked to be moved to another position

because working with Hayes caused her extreme stress.

On November 8, 2016, Parker e-mailed Hayes a final written warning. The

e-mail was a “follow up” to Hayes’s conversation with Parker and Donato, and

“serve[d] as a final written warning regarding systemic performance issues

stemming from repeated conflicts with colleagues, partners and clients both

internal and external.” The e-mail listed multiple issues raised by Hayes’s

1

Parker testified that he did not “believe [he] ever used the phrase ‘large black man.’”

3

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 4 of 29

behavior: “disrespectful confrontation,” “questioning of others in an unprofessional

manner, including tone, choice of words, and being dismissive,” behaving “in a

condescending tone towards others,” and “refusal to accept ownership for [his] role

in creating conflicts.” The e-mail also advised Hayes that Parker and Donato

expected to see immediate and substantial change in Hayes’s daily interactions,

including being respectful and professional in interactions with colleagues and

being mindful of tone and approach.

In December 2016, Hayes invited his girlfriend to attend a show at Philips

Arena and advised her to park in a secured lot. When an employee denied her

access to that lot, Hayes confronted that employee over the phone. The employee

sent an e-mail documenting the incident to a supervisor. After this incident, Parker

and Donato met with the newly-hired Human Resources Manager, Tabala Dixon,

to discuss whether to terminate Hayes’s employment. Dixon advised Donato and

Parker to refrain from terminating Hayes at that time and volunteered to mentor

and coach Hayes. 2 Hayes met with Dixon almost daily, and, according to Parker,

became an engaged, positive employee for about four to six weeks while Dixon

was counseling him. In their near-daily conversations, Dixon and Hayes went over

the human resources process for documenting incidents with any employees and

2

Hayes claims that he did not meet with Dixon to improve his management skills

because he did not need help with those skills, but claims he sought Dixon’s advice because he

genuinely liked her.

4

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 5 of 29

engaging in “progressive disciplinary process” before terminating anyone. During

the four to six weeks that Hayes was meeting with Dixon, Parker praised Hayes’s

performance.

In late March 2017, seven months into Hayes’s employment, Hayes saw

Kimberley Height, an employee, “yelling on the loading dock because she was

upset about [Hayes] requesting” that she write a narrative of an incident that had

occurred the week before. Hayes told Height to go home and wait for human

resources to contact her with next steps. For two weeks, Hayes did not tell anyone

in human resources that he had sent Height home and did not communicate with

Height. In early April, Hayes told Parker that he had suspended Height and told

her to remain home until human resources contacted her. Once Dixon learned of

the suspension, ATL Hawks reinstated Height and paid her for the time she was

out.

On April 12, 2017, Hayes terminated Danny Womack, a full-time employee,

for sleeping on the job. Again, Hayes did not notify or consult human resources.

ATL Hawks rescinded Hayes’s termination decision because Womack had known

medical issues and was taking medication that may have led to him sleeping on the

job.

Hayes’s position as a security manager gave him the authority to hire and

fire subordinates. However, Dixon (or someone else from human resources) still

5

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 6 of 29

had to authorize the termination of full-time employees, and during their daily

conversations, Dixon had told Hayes that he needed to discuss disciplinary actions

or termination with human resources to ensure proper documentation. Parker also

had multiple conversations with Hayes throughout his employment to remind him

to adhere to the appropriate human resources process when disciplining or

terminating employees. Hayes testified that he remembered Dixon explaining to

him that he needed to discuss terminations with her to ensure proper

documentation, but also that he interpreted that explanation to mean that he did not

need her prior permission to terminate employees.

B. Hayes’s Complaints About Disparate Application of Security Protocols

When Hayes began working for ATL Hawks, it had adopted internal

standard security operating procedures for Philips Arena. Almost every artist that

performed at Philips Arena asked for security procedure exemptions, such as

bypassing the metal detectors and wand search. A security liaison would work

with the artist to arrange a security plan, and any request for security procedure

exemptions would be escalated up to Brett Stefansson, the General Manager of the

Arena, who made the ultimate decision about whether to grant the request. The

security plan for an event was then e-mailed out as a “security advance,” but

changes could be made to the advance up until and during the event. Hayes was

6

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 7 of 29

not a part of conversations determining whether security concessions were granted

and only heard about some decisions secondhand.

In September 2016, one month into his employment, Hayes told Parker that

the security staff was “complaining about different security protocols for white and

black performers at Philips Arena.” According to Hayes, white artists were often

allowed to bypass security procedures, while the procedures were enforced

rigorously against black artists.3 Parker and Hayes met in October 2016 to discuss

Hayes’s concerns, and Hayes claims Parker said that certain shows attract “gang

members and criminals,” and that “white acts make more money and they charge

higher ticket prices, so the people who come to those shows are not going to act

out.”

Hayes alleges that he had two other conversations about disparate

enforcement of security protocols with Parker: one in February 2017, and one on

April 24, 2017, shortly before Hayes’s termination. During these conversations,

Hayes testified that he raised the same concerns––his staff was complaining to him

about racially disparate enforcement of the security protocols with regard to

3

Hayes testified that he saw multiple white performers being allowed to bypass security

protocols and multiple black performers being required to adhere to security protocols. Some of

the black performers requested security concessions, like bypassing metal detectors, and those

concessions were denied, but Hayes did not know whether those performers complained about

going through the metal detectors.

7

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 8 of 29

performers––and that Parker provided a similar explanation about concerns

associated with specific demographics.

On the other hand, Parker testified that he could only recall one conversation

with Hayes about disparate enforcement of security protocols. According to

Parker, he told Hayes that he did not believe that security protocols were being

disparately enforced and explained that artists seeking concessions could make a

request and that the General Manager would decide whether to grant it.

Hayes also complained about disparate enforcement to Dixon.4 Dixon told

Hayes to provide Parker with specific examples of artists being treated differently

based on race. According to Parker, Hayes did not do so.

On or around April 3, 2017,5 Hayes told Nzinga Shaw, the head of Diversity

and Inclusion for ATL Hawks, that he felt he was being targeted for termination

specifically by Parker due to his complaints about security procedures being

enforced differently on the basis of race. Hayes alleges that Shaw said she would

raise the issue in an executive meeting the following week. Shaw recalled

speaking with Hayes, and she e-mailed Stefansson to let him know that Hayes

claimed to be experiencing difficulties with Parker.

4

Dixon could not recall when this conversation took place but explained that it was

sometime between when she began working for ATL Hawks in December 2016 and Hayes’s

termination in April 2017.

5

Hayes e-mailed Shaw to arrange a time to talk on April 3, but Shaw was travelling for a

conference and could not recall whether they spoke on April 3 or a few days later.

8

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 9 of 29

Later in April, Hayes told Donato that he felt he was being targeted for

termination due to his complaints, and again raised disparate application of

security protocols in a group meeting. During the group meeting, Hayes claims

that Barry Henson, the Vice President of Operations, commented that “white

entertainers make more money” and “Tim McGraw is not going to blow up the

building.” Henson did not recall Hayes ever stating that security policies were

enforced differently based on race.

On April 25 or 26, 2017, Hayes told Stefansson that he felt that Parker was

targeting him because of his complaints about discrimination and that Parker

would likely use the Height incident as a justification to terminate him. Hayes

alleged that Stefannson told him that the Height incident was not a big deal and not

to worry about it and that he liked the direction security was going.

C. Hayes’s Termination

During the week of April 20, 2017, Parker, Stefansson, and Donato

exchanged e-mails discussing the “Security Transition,” that they were moving

forward with Hayes’s termination for a variety of reasons, and that there had been

continued complaints after the November 2016 final written warning that Hayes

received after he tried to bring a guest into the arena through the loading dock

without following security protocols. Parker recommended terminating Hayes, and

Donato and Dixon agreed with the decision. Hayes was terminated on April 28,

9

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 10 of 29

2017. Hayes thought he recalled Parker telling him that he was terminated for the

Height and Womack incidents. Parker told Stefansson that the Height and

Womack incidents and Hayes’s inability to abide by the requirements of the final

written warning were the reasons for the termination.

D. Procedural History

On July 3, 2017, Hayes sued ATL Hawks and Parker alleging that he was

unlawfully terminated on the basis of his race and in retaliation for his complaints

about the racially disparate application of security protocols in violation of 42

U.S.C. § 1981(a). After discovery, the defendants moved for summary judgment

on all of Hayes’s claims, alleging that they fired him for behavioral issues and

failure to follow ATL Hawks protocols that were ongoing after Hayes received the

November 2016 final written warning.

In response, Hayes filed a brief opposing the summary judgment motion,

along with three documents related to purported factual disputes: (1) Plaintiff’s

Objections and Responses to Defendants’ Statement of Undisputed Material Facts;

(2) Plaintiff’s Statement of Additional Material Facts; and (3) Plaintiff’s Amended

Statement of Additional Material Facts. A magistrate judge reviewed the summary

judgment briefing and struck portions of all three of Hayes’s fact-related filings

because they were not concise and did not comply with the district court’s Local

10

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 11 of 29

Rule 56.1(B) 6 and impermissibly sought to incorporate arguments by reference.

The magistrate judge gave Hayes leave to amend his filings but required that he

limit his objections to the defendants’ statement of material facts to 35 pages and

his statement of additional facts to 15 pages. Hayes filed new fact-related

documents but failed to comply with the court’s page limitations, and these

documents were also struck. Hayes then filed a third version of these fact-related

documents, and the parties completed briefing on the issues raised in ATL

Hawks’s motion.

In the Report & Recommendation (“R&R”), the magistrate judge struck

Hayes’s Third Amended Statement of Additional Material Facts and Amended

6

Local Rule 56.1(B)(1)–(2) provides that:

(1) A movant for summary judgment shall include with the motion and brief a

separate, concise, numbered statement of the material facts to which the movant

contends there is no genuine issue to be tried. Each material fact must be

numbered separately and supported by a citation to evidence proving such fact.

The court will not consider any fact: (a) not supported by a citation to evidence

(including page or paragraph number); (b) supported by a citation to a pleading

rather than to evidence; (c) stated as an issue or legal conclusion; or (d) set out

only in the brief and not in the movant's statement of undisputed facts.

(2) A respondent to a summary judgment motion shall include the following

documents with the responsive brief:

(a) A response to the movant’s statement of undisputed facts.

(1) This response shall contain individually numbered, concise,

nonargumentative responses corresponding to each of the movant’s

numbered undisputed material facts.

(2) This Court will deem each of the movant’s facts as admitted unless the

respondent: (i) directly refutes the movant’s fact with concise responses

supported by specific citations to evidence (including page or paragraph number);

(ii) states a valid objection to the admissibility of the movant’s fact; or (iii) points

out that the movant’s citation does not support the movant’s fact or that the

movant’s fact is not material or otherwise has failed to comply with the provisions

set out in LR 56.1B(1).

11

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 12 of 29

Objections and Responses to Defendant’s Statement of Undisputed Material Facts

because, again, neither filing complied with Local Rule 56.1. The magistrate judge

explained that Hayes did not organize his evidence and frequently “cite[d] his own

responses to unrelated facts or his Third Amended Statement of Additional

Material Facts.” Hayes also did not explain exactly which facts he was disputing,

but on multiple occasions responded by writing “Disputed” followed by a string of

citations without an explanation.

The magistrate judge recommended that the district court grant the

defendants’ motion for summary judgment on both claims. On the discrimination

claim, the magistrate judge found that Hayes had not submitted direct evidence of

discrimination as the evidence in the record required unsupported inferences to

establish discriminatory intent. She also found that Hayes could not establish

circumstantial evidence of discrimination under the McDonnell Douglas

framework because he had not identified a comparator. Finally, she found that

Hayes could not establish circumstantial evidence of discrimination by presenting

a “convincing mosaic” of evidence because the stray comments he offered as

evidence were insufficient to infer a causal connection between the statements and

the decision to fire Hayes, and because Hayes had failed to establish pretext. The

magistrate judge also recommended that the district court grant summary judgment

against Hayes on his retaliation claim because he had not submitted sufficient

12

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 13 of 29

evidence that he had engaged in a protected activity, as he did not prove that the

security protocols were a “contract-related right” that was a part of the artists’

contracts to perform at Philips Arena.

The district court adopted the magistrate judge’s recommendations and

granted summary judgment in favor of Parker and ATL Hawks. It also affirmed

the magistrate judge’s decision to strike Hayes’s responses as noncompliant with

Local Rule 56.1. This appeal followed.

II. Standard of Review

We review a district court’s order granting summary judgment de novo,

“viewing all the evidence, and drawing all reasonable inferences, in favor of the

non-moving party.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th

Cir. 2005). Summary judgment is appropriate when the evidence, viewed in the

light most favorable to the nonmoving party, presents no genuine dispute as to any

material fact and compels judgment as a matter of law. Fed. R. Civ. P. 56(a).

Under this standard, an inference based on speculation and conjecture is not

reasonable, Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287, 1294 (11th

Cir. 2013), and a “mere scintilla of evidence” supporting the non-moving party’s

13

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 14 of 29

position will not suffice to defeat a grant of summary judgment, Brooks v. Cnty.

Comm’n, 446 F.3d 1160, 1162 (11th Cir. 2006).

We review a district court’s application of a local rule for abuse of

discretion, giving “great deference to a district court’s interpretation of its local

rules.” Reese v. Herbert, 527 F.3d 1253, 1267 n.22 (11th Cir. 2008) (quotation

omitted). Under this standard, we will affirm “unless the district court has made a

‘clear error of judgment’ or applied an ‘incorrect legal standard.’” Conroy v.

Abraham Chevrolet-Tampa, Inc., 375 F.3d 1228, 1232 (11th Cir. 2004) (quotation

omitted).

III. Discussion

A. Hayes’s Racial Discrimination Claim

Hayes challenges the district court’s holding that he did not present a

convincing mosaic of circumstantial evidence from which a reasonable jury could

infer intentional discrimination sufficient to survive summary judgment.

Section 1981 provides a federal remedy for racial discrimination that

occurs in private employment. See 42 U.S.C. § 1981; Johnson v.

Railway Express Agency, 421 U.S. 454, 459–60 (1975). It is well-

established that [i]n order to survive summary judgment, a plaintiff

alleging intentional discrimination must present sufficient facts to

permit a jury to rule in [his] favor. One way that [he] can do so is by

satisfying the burden-shifting framework set out in McDonnell

Douglas. When proceeding under McDonnell Douglas, the plaintiff

bears the initial burden of establishing a prima facie case of

discrimination by showing (1) that [he] belongs to a protected class,

(2) that [he] was subjected to an adverse employment action, (3) that

[he] was qualified to perform the job in question, and (4) that [his]

14

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 15 of 29

employer treated “similarly situated” employees outside her class

more favorably. If the plaintiff succeeds in making out a prima facie

case, the burden shifts to the defendant to articulate a legitimate,

nondiscriminatory reason for its actions. Finally, should the

defendant carry its burden, the plaintiff must then demonstrate that the

defendant’s proffered reason was merely a pretext for unlawful

discrimination, an obligation that merges with the [plaintiff’s]

ultimate burden of persuading the [factfinder] that [he] has been the

victim of intentional discrimination.

Lewis v. City of Union City, Ga., 918 F.3d 1213, 1220–21 (11th Cir. 2019) (en

banc). A plaintiff may demonstrate his prima facie case with direct evidence or

circumstantial evidence. Jefferson v. Sewon America, Inc., 891 F.3d 911, 921

(11th Cir. 2018) (quotation omitted).

Here, the district court found that because Hayes failed to identify a

similarly situated comparator, he could not establish a prima facie case under

McDonnell Douglas. Hayes does not contest this finding on appeal. Rather, he

maintains that, notwithstanding the fact that he failed to identify a comparator, the

district court erred in determining that he did not otherwise present a convincing

mosaic of circumstantial evidence from which a jury could infer intentional

discrimination sufficient to survive summary judgment.7

7

On appeal and before the district court, Hayes asserts that he has established a prima

facie case of discrimination under the “convincing mosaic approach.” We note that the term

“‘convincing mosaic’ is not a legal test.” Ortiz v. Werner Enters., Inc., 834 F.3d 760, 764–65

(7th Cir. 2016). The phrase “was designed as a metaphor to illustrate why courts should not try

to differentiate between direct and indirect evidence.” Id.; see also Smith, 644 F.3d 1321, 1328

(explaining that a plaintiff may establish discrimination by presenting direct or circumstantial

evidence).

15

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 16 of 29

We have held that “the plaintiff’s failure to produce a comparator does not

necessarily doom the plaintiff’s case.” Lewis v. City of Union City, Ga., 934 F.3d

1169, 1185 (11th Cir. 2019) (“Lewis II). Thus, where a plaintiff does not establish

all of the elements of the McDonnell Douglas framework, he can still survive

summary judgment “if he presents . . . a convincing mosaic of circumstantial

evidence that would allow a jury to infer intentional discrimination.” Id. (ellipsis

in original) (quoting Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th

Cir. 2011)). A convincing mosaic of circumstantial evidence “may be shown by

evidence that demonstrates, among other things, (1) ‘suspicious timing, ambiguous

statements . . . , and other bits and pieces from which an inference of

discriminatory intent might be drawn,’ (2) systematically better treatment of

similarly situated employees, [and] (3) that the employer’s justification is

pretextual.” Id. (ellipsis in original) (quoting Silverman v. Bd. of Educ. of City of

Chi., 637 F.3d 729, 733–34 (7th Cir. 2011)).

“[A] plaintiff can show pretext by: (i) casting sufficient doubt on the

defendant’s proffered nondiscriminatory reasons to permit a reasonable fact finder

to conclude that the employer’s proffered reasons were not what actually motivated

its conduct, (ii) showing that the employer’s articulated reason is false and that the

false reason hid discrimination, or (iii) establishing that the employer has failed to

clearly articulate and follow its formal policies.” Id. at 1186.

16

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 17 of 29

Hayes argues that he established a prima facie intentional discrimination

claim because he presented a convincing mosaic of circumstantial evidence from

which a reasonable jury could infer intentional discrimination as articulated in

Lewis. In support of this contention, he presents a scattershot of arguments.

Specifically, Hayes contends a jury could infer intentional discrimination from the

following evidence:8 (1) all the adverse actions that befell Hayes were of

suspicious timing because each adverse action occurred shortly after he

“questioned, gave a directive to, or opposed a white person”; 9 (2) Hayes was

praised for his performance shortly before his termination; (3) Hayes was fired one

8

We note that Hayes makes broad allegations but fails to provide record cites and

supporting authority. While we are not required to scour the record on behalf of an appellant, we

address Hayes’s arguments as we best understand them.

Hayes also argues that ATL Hawks had a pattern of ignoring or trivializing racial issues.

As best we can tell, Hayes relies on this argument as a part of his pretext argument. He makes

this allegation in passing and does not specify the record evidence that supports his assertion or

cite to supporting authority, so we deem it abandoned. See Sapuppo v. Allstate Floridian Ins.

Co., 739 F.3d 678, 681 (11th Cir. 2014) (explaining that a party abandons a claim when he fails

to adequately brief it). To the extent Hayes offers this argument as a part of a convincing mosaic

of circumstantial evidence that establishes a reasonable inference of discrimination, he does not

provide sufficient evidence or explain how a jury could reach such an inference.

9

The only adverse action Hayes raised in his race discrimination claim in his complaint

was his termination. It is unclear what other adverse actions Hayes means as he did not raise

these arguments below. To the extent he is referring to other instances of disciplinary action

taken against him during his tenure, we will not consider these other adverse actions because

they are raised for the first time on appeal. Baldwin v. Blue Cross/Blue Shield of Ala., 480 F.3d

1287, 1308 n.2 (11th Cir. 2007) (“We do not ordinarily consider arguments raised for the first

time on appeal.”) (citation omitted).

17

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 18 of 29

business day before he started reporting to a new supervisor, who was also black; 10

and (4) that Parker harbored discriminatory animus towards black people.11

Hayes also asserts that he has demonstrated that ATL Hawks’s stated reason

for his termination—that Hayes failed to follow ATL Hawks’s policy in

suspending or terminating employees—is not worthy of belief and is pretextual

because (1) no such policy was in the Employee Handbook; (2) he was not told

that he was violating company policy by disciplining or firing employees without

consulting human resources until the day before he was fired; (3) testimony

established that as a manager he had the authority to discipline and fire employees;

and (4) ATL Hawks has presented shifting reasons for his termination as evidenced

by the testimony of various defense witnesses that Hayes was fired because of

continued complaints about him and performance issues.

We find that Hayes did not present sufficient circumstantial evidence to

establish a prima facie case of racial discrimination. Although Hayes contends that

the timing of his April 28, 2017 termination was suspicious because it occurred

10

Hayes also raises this argument that the suspicious timing of his firing, the day before

he reported to new supervisor George Turner, is a part of his convincing mosaic. We also will

not consider this argument since it was not raised below. Baldwin, 480 F.3d at 1308 n.2.

11

As evidence of Parker’s discriminatory animus, Hayes offers: (1) Parker’s statement to

Hayes that he was viewed as “aggressive” because he was black and his direction to Hayes to

“watch his tone”; (2) other employees’ belief that Parker was racist; (3) Parker’s implication

“that an all-black security staff could reasonably be perceived as ‘less than capable’”; and (4)

that Parker applied tighter security protocols for black artists than for white artists and made

“derogatory stereotypes about black people.

18

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 19 of 29

shortly after he complained about disparate enforcement of security protocols on

April 19, it was not. Assuming that Hayes did raise concerns during the meeting,

the timing is still not sufficient to infer that he was terminated due to his race

because of the fact that he had continuously complained about the alleged disparate

enforcement of security protocols based on race since the beginning of his

employment in August 2016. Furthermore, while Hayes’s termination may have

been in close proximity to his complaints about the security protocols, it was also

in close proximity to the Height and Womack incidents (the Height incident

occurred in late March 2017 and the Womack incident on April 12, 2017), which

are the failure to follow policy incidents for which the ATL Hawks assert he was

terminated.12

The scattered comments from Parker about race that Hayes offers and “other

bits and pieces”—namely the alleged justifications of disparate security protocols

based on racial stereotypes—are similarly insufficient to establish a prima facie

case. While Parker told Hayes that others found him intimidating because they

perceive him as “a large, black man with an intimidating voice and commanding

12

Hayes raises another timing-related argument––Stefansson praised Hayes’s

performance days before Hayes was terminated. Hayes cites to no authority supporting his

argument that Stefansson’s passing “great job” comment to Hayes a few days before Hayes was

terminated means Hayes was terminated based on his race, and so we decline to make that rule in

this case. Additionally, given the close proximity of the Height and Womack incidents––the

proffered reasons for Hayes’s termination––we decline to infer that this incident is related to

Hayes’s termination.

19

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 20 of 29

presence,”13 Parker made this statement during a meeting with Hayes in October

2016 over six months before Hayes’s termination. Thus, Parker’s comments are

insufficient to infer that it is more likely than not that Hayes’s termination in April

2017 was due to his race. See Jones v. Bessemer Carraway Med. Ctr., 151 F.3d

1321, 1322–23 & n.10 (11th Cir. 1998) (concluding that racial statements allegedly

made by employee’s supervisor were insufficient circumstantial evidence to

establish a prima facie case of discrimination because they were not associated

with events leading to the employee’s discharge). Similarly, even assuming as

Hayes contends, that the alleged racially disparate enforcement of security

protocols on various artists who performed at Philips Arena demonstrates a general

racially discriminatory attitude toward black artists, it does not permit a reasonable

inference that Hayes’s employment was terminated based on race. The two actions

are not related and simply have nothing to do with one another.

Even if Hayes had a prima facie case, he has failed to show that the decision

to fire him for not adhering to human resources protocols was pretextual. The

evidence shows (and no one disputes) that as a manager Hayes had the authority to

hire and fire subordinates. But, although Hayes had that authority, ATL Hawks

contend that he was supposed to consult human resources before taking action. In

13

Since this case is at the summary judgment stage, we assume this allegation is true.

Parker does not recall ever describing Hayes this way, but Hayes testifies that Parker said this or

similar phrases to describe him multiple times.

20

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 21 of 29

an effort to establish pretext, Hayes argues that the ATL Hawks failed to articulate

clearly the policy that required him to notify human resources before taking

disciplinary action or firing an employee because it was not set out in the employee

handbook. 14 In essence, Hayes is arguing that an employee may only be fired for

violating a policy written in an employee handbook. Hayes, however, provides no

legal support for this argument and we decline to adopt such a requirement. More

importantly, Hayes testified that he never received, saw, or had access to the

employee handbook and instead relied on the verbal policies and directives given

to him, so it is unclear how policies articulated, or for that matter not articulated, in

the employee handbook can help Hayes given that he never saw the handbook and

therefore did not know what policies were detailed in it. Accordingly, the fact that

the policy was not in the employee handbook does not establish that the ATL

Hawks’s proffered reason is pretextual and that the real reason Hayes was

terminated was because of his race.

14

During the proceedings below, the ATL Hawks produced an excerpt of the employee

handbook which set forth, as part of the company’s progressive discipline scheme, a series of

“corrective actions” that could be taken if an employee was found to be violating any rule,

policy, procedure, written contract, or for failing to satisfactorily perform the employee’s job.

These corrective actions included verbal counseling, written counseling, a final written warning,

being placed on a performance improvement plan, suspension, and termination. Notably, the

handbook provided that, if a manager believed a final written warning was warranted as an initial

corrective action, the manager should contact human resources to discuss the matter before

taking action, but no such similar language was included in the brief sections discussing

suspension and termination.

21

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 22 of 29

Hayes also contends that the ATL Hawks’s stated reason for his termination

is pretextual because no one told him specifically that he needed human resources’

approval before terminating employees until the day before he was fired when he

received an e-mail regarding the Womack incident. As an initial matter, Hayes’s

contention that he was unaware of the policy is undermined by the record. For

instance, although Hayes testified that no one explicitly told him that he needed

human resources’ approval before terminating or suspending employees, he also

testified that he had been told that documentation was needed in order to terminate

full-time employees and that he had to fill out certain forms and send them to

human resources as part of the termination process. When asked to clarify whether

Hayes believed he could independently make a termination decision, Hayes

acknowledged that, prior to Dixon’s arrival as human resources manager, Donato

“wanted to see the write-ups,” before any corrective action was taken but Hayes

believed that Donato was only screening the write-ups for grammatical or spelling

errors. He also acknowledged that when he was considering terminating an

employee named Darriel, Dixon asked Hayes to discuss the reasons with her before

the termination, although Hayes thought this meeting was just a formality to ensure

they had the “right documentation for [him] to make the decision.” Thus, Hayes’s

own testimony reveals that he understood that human resources was to be involved

in termination decisions, even if he subjectively believed that termination decisions

22

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 23 of 29

were his alone to make as the security manager and human resources was only

involved to ensure the company had the right documentation. Hayes’s

acknowledgement that human resources was to be involved at least on some

rudimentary level is consistent with the testimony presented by numerous ATL

Hawks witnesses that Hayes received multiple verbal instructions that he must

notify human resources before taking disciplinary action. And it is undisputed that

Hayes did not involve human resources at all in his suspension and termination

decisions regarding Height and Womack, which was a violation of policy—even

the policy as contemplated by Hayes—and it is this violation of policy that the

ATL Hawks’s proffered as the reason for Hayes’s termination. But even if Hayes

was unaware of the policy in question, that does not establish or permit a

reasonable inference that the real reason he was terminated was because of his

race. 15

15

Hayes also makes a number of arguments as to how he did not in fact violate any

alleged policies, but this argument misapprehends the focus of the inquiry in employment cases

such as this one. As our precedent makes clear, when assessing whether an employer has

properly imposed an adverse action on an employee based on that employee’s conduct, the

question is not whether the employee actually engaged in the conduct, but instead whether the

employer in good faith believed that the employee had done so. As we have stated before when

a similar argument was made by an employee against whom an adverse action was taken,

[t]he inquiry . . . centers on the employer’s beliefs, not the employee’s beliefs and,

to be blunt about it, not on reality as it exists outside of the decision maker’s head.

. . . The question is whether [the] employers were dissatisfied with [the employee]

for these or other non-discriminatory reasons, even if mistakenly or unfairly so, or

instead merely used those [reasons] as cover for discriminating against her. . . .

23

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 24 of 29

Finally, Hayes asserts that the proffered reason for his termination is

pretextual because ATL Hawks has proffered shifting reasons for his termination

given the extensive testimony concerning Hayes’s other behavioral issues. But this

contention is also undermined by the record. Although many of the defense

witnesses testified as part of their depositions as to other behavioral issues that

occurred during Hayes’s employment, they also consistently stated that what

ultimately led to Hayes’s termination was the Height and Womack incidents.

Thus, Hayes’s allegation is belied by the record, and does not provide a basis for a

reasonable jury to infer that the real reason Hayes was terminated was because of

his race.

Because we agree with the district court that Hayes failed to proffer a

convincing mosaic of circumstantial evidence from which a reasonable jury could

infer intentional discrimination, we conclude that the district court properly granted

summary judgment on Hayes’s race discrimination claim.

In analyzing issues like this one, “we must be careful not to allow [§ 1981]

plaintiffs simply to litigate whether they are, in fact, good employees.”

Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1252, 1266 (11th Cir. 2010) (internal citations

omitted) (quoting Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002)); see also Wilson v.

B/E Aerospace, Inc., 376 F.3d 1079, 1092 (11th Cir. 2004) (“The role of this Court is to prevent

unlawful hiring practices, not to act as a super personnel department that second-guesses

employers’ business judgments. Our sole concern is whether unlawful discriminatory animus

motivates a challenged employment decision. Whether [the plaintiff’s] conduct was

insubordinate is not an issue for this Court to referee.” (quotations and citations omitted)).

24

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 25 of 29

B. Hayes’s Retaliation Claim

Hayes also appeals the district court’s dismissal of his retaliation claim,

arguing that he pleaded sufficient information to survive summary judgment when

he alleged that he engaged in a protected activity by complaining about race-based

security policies for Philips Arena performers, and that § 1981 applies because

these security policies are contained in contractual agreements.

Section 1981 prohibits employers from retaliating against employees who

have complained about the race-based violation of another person’s “contract

related rights.” See Bryant v. Jones, 575 F.3d 1281, 1309 (11th Cir. 2009) (“[I]t is

well-established in this circuit that claims for retaliation are cognizable pursuant to

§ 1981.”); CBOCS W., Inc., 553 U.S. at 452–57 (holding that retaliation claims

under § 1981 include claims by an individual who suffers as a result of trying to

help other coworkers suffering direct racial discrimination). To establish a

retaliation claim under § 1981, a plaintiff must prove that (1) he engaged in a

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

(3) there was some causal relation between the two events. Goldsmith, 513 F.3d at

1276 (citing Burlington N. & Santa Fe Ry. Co v. White, 548 U.S. 53, 59–70

(2006)).

A plaintiff engages in a statutorily protected activity when he asserts a right

encompassed by § 1981. Jimenez v. Wellstar Health Sys., 596 F.3d 1304, 1311

25

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 26 of 29

(11th Cir. 2010). Section 1981 provides, among other things, that all persons

regardless of their race have the same right “to make and enforce contracts.” 42

U.S.C. § 1981(a). “Make and enforce contracts” for purposes of § 1981 is defined

as “the making, performance, modification, and termination of contracts, and the

enjoyment of all benefits, privileges, terms, and conditions of the contractual

relationship.” 42 U.S.C. § 1981(b).

Hayes argued that his complaints concerning the security protocols were a

statutorily protected activity because he was asserting the contractual rights of

black artists to make and enjoy contracts with ATL Hawks for performances at

Philips Arena, but he has not presented any evidence that the security plans for

each show were negotiated as a part of the artists’ contracts. Rather, according to

Hayes, the security plans for each show were based on ATL Hawks’s internal,

standard operating procedures. Since Hayes has not proved that the security

concessions were negotiated by the artists as a part of their performance contracts,

he has failed to establish that he engaged in a statutorily protected activity that

involved the assertion of rights encompassed by § 1981.16 Thus, he cannot

establish a retaliation claim for purposes of § 1981. Jimenez, 596 F.3d at 1311

16

Hayes argues that it was reasonable for him to assume that he was engaging in a

protected activity because “a reasonable person would construe the . . . bypass and the other

security concessions afforded to white artists as privileges of the contractual relationship.” This

argument does not affect whether § 1981 applied to the security measures because his perception

does not make the measures a part of a contract. While the artists did have contracts for

26

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 27 of 29

C. The District Court’s Local Rule 56.1 Ruling

Finally, Hayes appeals the district court’s decision to strike his Objections

and Responses to Defendants’ Statement of Undisputed Material Facts and his

Second Amended Objections and Responses to Defendant’s Statement of

Undisputed Material Facts. He maintains that his responses had to be lengthy to

prove his “convincing mosaic” claim, that his responses were explanatory rather

than argumentative, and that the magistrate judge imposed a “post hoc” page

limitation that caused deficiencies in his filing. 17

The United States District Court for the Northern District of Georgia’s Local

Rule 56.1(B) directs a respondent to a motion for summary judgment to submit a

response that contains individually numbered, concise, non-argumentative

responses corresponding to each of the moving party’s enumerated material facts.

N.D. Ga. R. 56.1(B)(2). If the responding party does not directly refute a material

fact set forth in the moving party’s statement of material facts with specific

citations to evidence or otherwise fails to state a valid objection to the material

performances, the security plans for an event were worked out with a security liaison and were

fluid, often changing just before or during an event.

17

Although ATL Hawks contend that Hayes waived this claim by not properly briefing

it or including supporting arguments, we disagree. It is true that Hayes improperly attempts to

incorporate by reference his arguments from district court filings, but because he devotes a

section of his brief to the claim, he has not waived the issue. See Cole v. U.S. Att’y Gen., 712

F.3d 517, 530 (11th Cir. 2013) (“To adequately raise a claim or issue, a party ‘must plainly and

prominently so indicate,’ for instance by ‘devoting a discrete section of his argument to’ those

claims.” (alteration adopted and quotation omitted)).

27

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 28 of 29

fact, the fact is deemed admitted. Id.; see also Mann v. Taser Int’l, Inc., 588 F.3d

1291, 1302 (11th Cir. 2009). The rule is not a mere technicality; rather, it helps the

court identify and organize the issues in the case. Id. at 1303.

The district court did not abuse its discretion by striking Hayes’s filings.

The magistrate judge had authority to impose a page limit on Hayes’s responses.

See Fed. R. Civ. P. 83(b). And the district court did not make a clear error of

judgment when it reviewed Hayes’s 125-page response to the defendants’ 15-page

Statement of Undisputed Material Facts and found that Hayes’s response was not

concise and that many of his responses contained “rambling arguments based on

his interpretation of the evidence rather than concise, nonargumentative responses

and specific citations to evidence” in violation of Local Rule 56.1. The district

court explained how Hayes’s response argued legal conclusions instead of

responding succinctly to facts and noted that his Statement of Additional Material

Facts and Second Amended Statement of Additional Material Facts were similarly

problematic. As the district court correctly pointed out, even if it wished to do so,

“it would be nearly impossible to divine [Hayes’s] intentions from his cross-

references,” and that the point of Local Rule 56.1 was to prevent situations like this

one where judges had to “hunt and peck for the relevant undisputed facts.”

Because we find that the district court correctly applied Local Rule 56.1, it did not

28

USCA11 Case: 20-10169 Date Filed: 02/04/2021 Page: 29 of 29

make a clear error of judgment or abuse its discretion. See Reese, 527 F.3d at 1267

n.22, 1268.

For these reasons, we affirm.

AFFIRMED.

29