Petition for Writ of Certiorari — Roddie Melvin, Petitioner v. Federal Express Corporation

Supreme Court briefFeb 8, 2021

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No. 20-___

In The

Supreme Court of the United States

RODDIE MELVIN,

Petitioner,

FEDERAL EXPRESS CORPORATION,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Sachin S. Pandya

UNIVERSITY OF

CONNECTICUT

SCHOOL OF LAW

65 Elizabeth Street

Hartford, CT 06105

Amanda A. Farahany

Counsel of Record

Benjamin A. Stark

Grace A. Starling

Catherine A. Gavrilidis

Zachary T. Panter

BARRETT & FARAHANY, LLC

1100 Peachtree Street N.E.

Suite 500

Atlanta, GA 30309

(404) 214-0120

amanda@justiceatwork.com

Attorneys for Petitioner

February 8, 2021

QUESTION PRESENTED

In evaluating motions for summary judgment under

employment discrimination laws, such as the Age

Discrimination in Employment Act, must a court

examine all the evidence together to determine

whether a reasonable jury could find discrimination

by a preponderance of the evidence (as required by the

Seventh Circuit), or must the court apply a special

heightened standard of proof that separately

evaluates different pieces of evidence based on the

“stage” of the inquiry or on whether the evidence is

“direct” or “circumstantial” (as required by the

Eleventh Circuit, among others)?

RELATED CASES

•

Melvin v. Federal Express Corporation, No.

1:17-cv-00789-CC, U.S. District Court for the

Northern District of Georgia.

Judgment

entered May 1, 2019.

•

Melvin v. Federal Express Corporation, No. 1911872, U.S. Court of Appeals for the Eleventh

Circuit. Judgment entered May 21, 2020.

Petition for en banc rehearing denied

September 10, 2020.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................i

RELATED CASES ................................................... ii

TABLE OF APPENDICES ....................................... v

TABLE OF AUTHORITIES .................................... vi

DECISIONS BELOW ............................................... 1

STATEMENT OF JURISDICTION ......................... 1

PERTINENT STATUTORY PROVISIONS ............. 1

INTRODUCTION ..................................................... 3

STATEMENT OF THE CASE .................................. 5

REASONS FOR GRANTING THE WRIT ............... 9

The Decision Below Conflicts with the

Seventh Circuit’s Rejection of Special

Heightened Standards of Proof in

Discrimination Cases ..................................... 9

II.

The Eleventh Circuit’s Decision Below

Conflicts with This Court’s Precedent......... 13

A. No Special Heightened Standards of

Proof Apply in Employment

Discrimination Cases.............................. 13

B. The Court Below Ignored this Court’s

Precedent by Applying a Special

Heightened Standard of Proof ................ 19

III. This Petition Concerns an Important

Federal Question Because Special

Heightened Standards of Proof Distort

How Lower Courts Analyze

Discrimination Cases ................................... 22

CONCLUSION........................................................ 26

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT, FILED MAY 21, 2020 ..... 1a

APPENDIX B — ORDER OF THE

UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF GEORGIA,

ATLANTA DIVISION, DATED MAY 1, 2019 ..... 27a

APPENDIX C — FINAL REPORT AND

RECOMMENDATION OF THE UNITED

STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF GEORGIA,

ATLANTA DIVISION, DATED

JANUARY 28, 2019 .............................................. 59a

APPENDIX D — DENIAL OF REHEARING

OF THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT,

DATED SEPTEMBER 10, 2020 ......................... 109a

TABLE OF AUTHORITIES

Page(s)

Cases:

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) .......................................... 4, 17

Aubrey v. Koppes,

975 F.3d 995 (10th Cir. 2020) .............................. 12

Bostock v. Clayton County,

140 S. Ct. 1731 (2020) .......................................... 25

Brady v. Office of Sergeant at Arms,

520 F.3d 490 (D.C. Cir. 2008) ........................ 12, 16

Chapter 7 Tr. v. Gate Gourmet,

683 F.3d 1249 (11th Cir. 2012) .............................. 8

Clark v. Champion National Sec., Inc.,

952 F.3d 570 (5th Cir. 2020) ................................ 12

Coleman v. Donahoe,

667 F.3d 835 (7th Cir. 2012) ................................ 23

Concrete Pipe & Products of California v.

Construction Laborers Pension Trust,

508 U.S. 602 (1993) .......................................... 3, 13

Desert Palace, Inc. v. Costa,

539 U.S. 90 (2003) ........................................ passim

Figueroa v. Pompeo,

923 F.3d 1078 (D.C. Cir. 2019) ............................ 16

Furnco Construction Corp. v. Waters,

438 U.S. 567 (1978) ...................................16, 23-24

vii

Griffith v. City of Des Moines,

387 F.3d 733 (8th Cir. 2004) ................................ 23

Gross v. FBL Financial Services,

557 U.S. 167 (2009) ............................ 13, 17, 18, 20

Holland v. United States,

348 U.S. 121 (1954) .............................................. 14

Jefferson v. Sewon Am.,

891 F.3d 911 (11th Cir. 2018) .............................. 19

Lewis v. City of Union City, Georgia,

934 F.3d 1169 (11th Cir. 2019) ............................ 19

Maraschiello v. City of Buffalo Police Dep’t,

709 F.3d 87 (2d Cir. 2013) ................................... 12

McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973) ...................................... passim

Melvin v. Federal Express Corp.,

814 Fed. Appx. 506 (11th Cir. 2020)...................... 1

Ortiz v. Werner Enterprises, Inc.,

834 F.3d 760 (7th Cir. 2016) .................... 10, 11, 12

Patterson v. Walgreen Co.,

140 S. Ct. 685 (2020) ............................................ 25

Poller v. Columbia Broadcasting System, Inc.,

368 U.S. 464 (1962) ................................................ 5

Postal Service Bd. of Governors v. Aikens,

460 U.S. 711 (1983) .................................. 14, 17, 20

Price Waterhouse v. Hopkins,

490 U.S. 228 (1989) ........................................ 18, 24

Reeves v. Sanderson Plumbing Products,

530 U.S. 133 (2000) ...................................... passim

viii

Rogers v. Missouri Pac. R. Co.,

352 U.S. 500 (1957) .............................................. 14

Silverman v. Bd. of Educ. of City of Chicago,

637 F.3d 729 (7th Cir. 2011) ................................ 11

Smith v. Lockheed-Martin Corp.,

644 F.3d 1321 (11th Cir. 2011) ........................ 3, 11

St. Mary’s Honor Center v. Hicks,

509 U.S. 502 (1993) ............................ 14, 16, 17, 19

Texas Department of Community Affairs v.

Burdine,

450 U.S. 248 (1981) ........................................ 16, 18

Torgerson v. City of Rochester,

643 F.3d 1031 (8th Cir. 2011) .............................. 12

Trans World Airlines v. Thurston,

469 U.S. 111 (1985) ........................................ 18, 24

Wells v. Colorado Dep’t of Transp.,

325 F.3d 1205 (10th Cir. 2003) ...................... 23, 24

Willis v. UPMC Children’s Hosp. of Pittsburgh,

808 F.3d 638 (3d Cir. 2015) ................................. 12

Zabala-De Jesus v. Sanofi-Aventis P.R., Inc.,

959 F.3d 423 (1st Cir. 2020) ................................ 12

Statutes and Other Authorities:

1 Jones on Evidence § 4:2 (7th ed. 2020) ............... 15

28 U.S.C. § 1254(1) ................................................... 1

28 U.S.C. § 1291 ........................................................ 8

28 U.S.C. § 1331 ........................................................ 7

29 U.S.C. § 623(a)(1) ................................. 2, 7, 13, 19

42 U.S.C. § 1981(a) ................................................. 19

42 U.S.C. § 2000e(m),

Title VII § 701(m) ................................................. 14

42 U.S.C. § 2000e-2(a)(1),

Title VII § 703(a)(1) ........................................ 14, 19

Denny Chin, Summary Judgment in Employment

Discrimination Cases: A Judge's Perspective,

57 N.Y.L. Sch. L. Rev. 671 (2013) .................. 23, 24

Fed. R. Evid. 301 ..................................................... 15

Federal Judicial Center, Judicial Facts

and Figures 2019, tbl. 4.4. (nature of suit:

civil-rights: employment and civil-rights:

ADA-employment) ................................................ 22

Memorandum from Joe Cecil & George Cort,

Fed. Judicial Ctr., to Judge Baylson, (table 4)

(Aug. 13, 2008) ..................................................... 25

Sup. Ct. R. 30.1 ......................................................... 1

Timothy M. Tymkovich, The Problem with

Pretext, 85 Denver U. L. Rev. 503 (2008) ..... 23, 24

DECISIONS BELOW

The magistrate judge’s report & recommendation

recommending summary judgment for Respondent is

reprinted at App. 59a-108a. The district court’s

decision granting summary judgment to Respondent

is reprinted at App. 27a-58a. The Eleventh Circuit’s

opinion affirming the district court’s judgment is

reported at Melvin v. Federal Express Corp., 814 Fed.

Appx. 506 (11th Cir. 2020) and reprinted at App.

1a-26a.

STATEMENT OF JURISDICTION

On May 21, 2020, the Eleventh Circuit issued its

opinion affirming the district court’s grant of

summary judgment to Respondent. The full Eleventh

Circuit issued an order denying en banc rehearing on

September 10, 2020. Per this Court’s Order of March

19, 2020, the deadline for filing petitions for writ of

certiorari is extended to 150 days. 150 days from

September 10, 2020 is Sunday, February 7, 2021. Per

this Court’s Rule 30.1, deadlines that end on a

Saturday or Sunday are extended to the next business

day. Here, that is Monday, February 8, 2021. This

Court has jurisdiction under 28 U.S.C. § 1254(1).

PERTINENT STATUTORY PROVISIONS

The Age Discrimination in Employment Act of

1967 (“ADEA”) provides that it is “unlawful” for an

employer

to fail or refuse to hire or to discharge

any individual or otherwise discriminate

against any individual with respect to

his compensation, terms, conditions, or

privileges of employment, because of

such individual's age.

29 U.S.C. § 623(a)(1).

INTRODUCTION

Under the typical “preponderance of the evidence”

standard of proof, the factfinder examines all the

evidence as a whole and determines whether such

evidence shows that the plaintiff has, more likely than

not, proven her case. This standard is applicable in

most civil cases. Concrete Pipe & Products of

California v. Construction Laborers Pension Trust,

508 U.S. 602, 622 (1993). And this Court has

instructed that, at summary judgment, the evidence

must be viewed “as a whole.” Reeves v. Sanderson

Plumbing Products, 530 U.S. 133, 150 (2000).

However, the lower courts have applied a special

heightened standard of proof to employment

discrimination cases, in contravention of this Court’s

precedent.

Employment discrimination lawsuits often turn on

whether there is enough proof of discriminatory intent

to survive a defendant-employer’s summary judgment

motion. But, instead of applying the simple

“preponderance of the evidence” standard, the lower

courts have fashioned special heightened standards of

proof that add needless complexity to a

straightforward inquiry. Some courts do this by

mistaking the legal presumption created by this Court

in McDonnell Douglas Corp. v. Green, 411 U. S. 792

(1973) for a standard of proof and requiring all

discrimination plaintiffs to meet the elements of that

“standard” to survive summary judgment. Others, like

the Eleventh Circuit, utilize alternative tests, such as

“a convincing mosaic of circumstantial evidence.”

Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328

(11th Cir. 2011). Whatever the formulation, these

departures from the basic preponderance standard

inevitably cause courts to focus on secondary issues

like the distinction between direct and circumstantial

evidence, the compartmentalization of that evidence,

and the analysis of the part, rather than an

examination of the whole. By applying these

heightened standards of proof, employment

discrimination cases at summary judgment have

become “full-blown paper trial[s] on the merits.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 266-67

(1986) (Brennan, J., dissenting).

In this case, the Eleventh Circuit applied one such

special heightened standard of proof (“convincing

mosaic”), in conflict with the Seventh Circuit’s

rejection of the very same special standard of proof.

More generally, the Eleventh Circuit and the Seventh

Circuit are on opposite sides of a split among the

federal courts of appeal over whether to apply special

standards of proof to employment discrimination

cases or, instead, to simply examine all the evidence

and determine whether a reasonable jury could find

that the evidence proves, more likely than not, that

discrimination motivated the adverse action.

This Court, however, has squarely rejected

heightened standards of proof in employment

discrimination cases, including ones that depend on a

distinction between “direct” and “circumstantial”

evidence. Neither Congress nor the McDonnell

Douglas legal presumption require otherwise.

Nonetheless, special heightened standards of proof –

like the one applied below – continue to bedevil

lawyers and judges in lower courts. And, as some

federal judges have themselves complained, such

special heightened standards of proof lead them to

evaluate discriminatory intent evidence at summary

judgment differently than they otherwise would,

resulting in disproportionate dismissal of employment

discrimination cases compared to other types of cases.

This Court, in Poller v. Columbia Broadcasting

System, Inc., 368 U.S. 464, 473 (1962 explained that

“summary

procedures

should

used

sparingly. . . where motive and intent play leading

roles, the proof is largely in the hands of the

conspirators, and hostile witnesses thicken the plot.”

While this Court, in Poller, was concerned with

complex antitrust litigation, motive and intent are a

significant part of employment discrimination cases.

Id. Accordingly, this Court should grant this petition

and answer the question presented.

STATEMENT OF THE CASE

By 2016, Petitioner Roddie Melvin was a highly

successful, award-winning executive of Respondent

Federal Express Corporation (“FedEx”). He had, over

the course of 33 years at the company, worked his way

up the corporate ladder, receiving several promotions

and internal job offers, rising from rank-and-file

worker to Managing Director. App. 2a, 61a. FedEx

awarded Melvin numerous merit awards for his

exceptional work between 1990 and 2010. App. 2a,

61a.

Melvin’s previous managers praised his work. Vice

President Reggie Owens testified that Melvin was a

“sound director” who “ran a good ship” and “took care

of business.” App. 3a. Senior Vice President Mike

Pigors found Melvin to be an effective leader who “did

good jobs” and even noted that “Rod did a good job or

else he wouldn’t have been promoted and moved

around.” D. Ct. Doc. 60, pp. 23-25. Ricky Brock, the

Vice President over Melvin until spring of 2016,

testified that Melvin’s peers respected him and that

Melvin was receptive to changing his leadership style

where needed. App. 3a. Brock testified that, in the

spring of 2016, before a new Vice President was

appointed, Melvin was not on a path toward

termination. App. 3a.

In spring of 2016, a new Vice President, Joseph

Stephens, became Melvin’s supervisor. In their first

conversation, Stephens asked Melvin when he was

going to retire, how old he was, and why he would

want to continue in the job “given [his] age,” and

encouraged him to “move on and let the ‘young guys’

take over.” App. 3a-4a. Before Stephens, Melvin had

only received two disciplinary letters in thirty-two

years with FedEx, and no previous manager had ever

issued more than one such letter to him. App. 3a, 31a.

But, after the above conversation, Stephens issued

three disciplinary letters against Melvin over six

months. FedEx thereafter fired Melvin. App. 3a-6a.

As Senior Vice President (and, later, President of

FedEx) Pigors testified, it was extremely rare for

FedEx to issue disciplinary letters to Managing

Directors, and the practice for managers at Melvin’s

level was to give them every opportunity to fix an issue

and, if that failed, to advise them to move to a different

position. D. Ct. Doc. 60, pp. 30-31. Pigors also

testified that so many errors occur at FedEx each day

that, if Managing Directors were held strictly

accountable for each of the errors in their district, they

would all be terminated every 90 days (including

Pigors himself). Id. at pp. 45-46.

Melvin filed suit, alleging in part that FedEx had

fired him because of his age in violation of the Age

Discrimination in Employment Act (“ADEA”), 29

U.S.C. § 623(a)(1). The district court had jurisdiction

under 28 U.S.C. § 1331.

On January 28, 2019, U.S. Magistrate Judge J. Clay

Fuller issued a report recommending, among other

things, that the district court grant FedEx’s motion for

summary judgment on Melvin’s ADEA claim. App. 72a97a. Magistrate Judge Fuller reasoned that because

Melvin “does not point to direct evidence of

discrimination,” App. 74a (n. 6), he had to establish a

prima facie case of age discrimination under the

“McDonnell Douglas evidentiary framework.” App.

75a. In turn, Magistrate Judge Fuller concluded that:

(1) Melvin had enough evidence of a prima facie case;

(2) FedEx had enough evidence of a non-discriminatory

reason for firing Melvin; but (3) Melvin had not

submitted enough evidence for a reasonable jury to find

that FedEx’s proferred reasons were pretext for firing

him because of his age. App. 76a-90a. Magistrate Judge

Fuller also considered, in the alternative, whether

Melvin had “produced circumstantial evidence of

discriminatory intent through the ‘convincing mosaic’

standard” of proof, and concluded that Melvin’s

evidence did not satisfy that standard. App. 90a-97a.

By order and opinion dated May 1, 2019, the

district court granted summary judgment on Melvin’s

ADEA claim based in part on the Magistrate’s report

and recommendation. App. 28a. The district court

concluded that Stephens’ ageist comments, though

“disturbing,” were “not probative, circumstantial

evidence” that FedEx fired Melvin because of his age.

App. 54a. Rather, Stephens’s statements were

“isolated remarks” that “alone” did not “establish a

material fact on pretext or a convincing mosaic.” App.

54a. The district court also concluded that, given the

evidence in the record, no reasonable jury could find

that FedEx’s justifications for firing Melvin in the

three disciplinary letters were pretext for firing him

because of his age. App. 33a-34a, 37a-39a, 41a-42a,

45a-51a. Judgment was entered on May 1, 2019.

Melvin filed a notice of appeal on May 1, 2019, to

the Eleventh Circuit, which had jurisdiction under 28

U.S.C. § 1291. On appeal, Melvin argued, inter alia,

that the district court had erred in granting summary

judgment under the Eleventh Circuit’s “convincing

mosaic” standard of proof and urged the court to

interpret that standard to consider all the evidence

together in “[w]hatever form it takes.” Appellant’s

Corrected Initial Brief before Eleventh Cir., at p. 12

(Oct. 11, 2019) (quoting Chapter 7 Tr. v. Gate

Gourmet, 683 F.3d 1249, 1256 (11th Cir. 2012)).

By opinion dated May 21, 2020, the Eleventh

Circuit affirmed the district court’s judgment. The

Eleventh Circuit, applying its “convincing mosaic”

standard,1 first found that Stephens’s ageist

––––––––––––––––––––––––

1 The Eleventh Circuit noted that even assuming arguendo

that Melvin “failed to create” a McDonnell-Douglas prima facie

case, as FedEx had argued, it would “still” apply its “convincing

mosaic” standard of proof, which it took “at least in this case” as

“largely indistinguishable from our ordinary pretext analysis.”

App. 9a-10a (Op. n. 3).

comments to Melvin were not “direct” evidence of

discrimination, but circumstantial. App. 10a. The

court then concluded that Stephens’s ageist comments

were “probative as to whether age animus motivated”

the termination and that the comments “certainly

support a showing of discriminatory intent.” App. 11a.

Nonetheless, the Eleventh Circuit held that such

evidence of discriminatory intent was not enough to

defeat summary judgment; it also required Melvin to

produce enough evidence that, on its own, would lead

a reasonable jury to find that FedEx’s proffered

reasons for the termination were pretext. App. 11a12a. The court then concluded that Melvin had not

produced enough such evidence of pretext and, for that

reason, affirmed summary judgment on Melvin’s

ADEA claim. App. 12a-24a. Melvin’s petition for

rehearing en banc was denied on September 10, 2020.

App. 109a.

REASONS FOR GRANTING THE WRIT

The Decision Below Conflicts with the

Seventh Circuit’s Rejection of Special

Heightened Standards of Proof in

Discrimination Cases

By applying its “convincing mosaic” standard of

proof, the court below split with the Seventh Circuit,

which: (i) expressly rejected “convincing mosaic” as a

standard of proof and (ii) more generally rejected

special heightened standards of proof in favor of a

straightforward examination of whether the evidence

supports a finding of discriminatory intent.

In Ortiz v. Werner Enterprises, Inc., 834 F.3d 760

(7th Cir. 2016), the Seventh Circuit, in an opinion by

Judge Frank H. Easterbrook, explained that

“convincing mosaic” was originally “a metaphor to

illustrate why courts should not try to differentiate

between direct and indirect evidence,” and thus to

remind lawyers and judges that “all evidence is

inferential and cannot be sorted into boxes. All

evidence should be considered together to understand

the pattern it reveals.” Id. at 764 (emphasis added). In

reaching this conclusion, Judge Easterbrook was in

accord with Justice Thomas’s opinion for this Court in

Desert Palace, Inc. v. Costa, 539 U.S. 90, 100 (2003)

(“The reason for treating circumstantial and direct

evidence alike is both clear and deep-rooted:

Circumstantial evidence is not only sufficient, but

may also be more certain, satisfying and persuasive

than direct evidence.”) (cleaned up).

Unfortunately, Judge Easterbrook explained,

district courts – and some panels of Seventh Circuit

judges – took “convincing mosaic” as a legal test – a

“governing legal standard” of proof in discrimination

cases. Ortiz 834 F.3d at 765. To stop this, the Seventh

Circuit rejected “convincing mosaic” as a standard of

proof in discrimination cases, declaring that a district

court acting otherwise is “subject to summary

reversal,” because the “correct” standard is simply

“whether the evidence would permit a reasonable

factfinder to conclude that the plaintiff’s race,

ethnicity, sex, religion, or other proscribed factor

caused the discharge or other adverse employment

action.” Id. And to forestall any other special standards

of proof in discrimination cases that depend on

distinguishing between “direct” and “indirect” evidence

– the original failed purpose of the “convincing

metaphor” metaphor – the Seventh Circuit also held

that “district courts must stop separating ‘direct’ from

‘indirect’ evidence and proceeding as if they were

subject to different legal standards.” Id.

The circuit split is plain. The court below applied

the very “convincing mosaic” standard of proof and

direct-evidence/indirect-evidence distinction that the

Seventh Circuit rejected. Indeed, the Eleventh Circuit

first adopted “convincing mosaic” as a standard of

proof by importing it from a Seventh Circuit opinion

that had mistaken “convincing mosaic” as a special

standard of proof for circumstantial evidence in

discrimination cases. Smith v. Lockheed-Martin

Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (quoting

Silverman v. Bd. of Educ. of City of Chicago, 637 F.3d

729, 734 (7th Cir. 2011)). The Seventh Circuit,

however, expressly overruled Silverman to the extent

that it relied on “convincing mosaic” as a standard of

proof, Ortiz, 834 F.3d at 764-65, and “insist[ed] on the

use of the direct-and-indirect framework,” id. at

766-67. To state the circuit split in stark terms: if the

Eleventh Circuit’s decision below were issued by a

district court within the Seventh Circuit, it would

have been subject to summary reversal. Id. at 765.

More generally, the Eleventh Circuit and the

Seventh Circuit are now on opposite sides of a split

among the circuits over whether to apply special

standards of proof to employment discrimination cases

or, instead, to simply examine all the evidence and

determine whether it proves that a reasonable jury

could find that, more likely than not, discrimination

motivated the adverse action. The Seventh Circuit, as

noted above, rejects special standards of proof and

directs its district courts to simply examine “whether

the evidence would permit a reasonable factfinder to

conclude that the plaintiff’s [protected characteristic]

caused” the challenged adverse action. Id. In contrast,

the Eleventh Circuit in this case joins multiple other

circuits in holding that, unless there is “direct”

evidence of discrimination, a court must apply some

special heightened standard of proof – either

“convincing mosaic” or a misapplication of McDonnell

Douglas as a standard of proof (when it is actually just

a legal presumption).2 Compare, e.g., Zabala-De Jesus

v. Sanofi-Aventis P.R., Inc., 959 F.3d 423, 428 (1st Cir.

2020) (ADEA); Maraschiello v. City of Buffalo Police

Dep’t, 709 F.3d 87, 94 (2d Cir. 2013) (Title VII); Willis

v. UPMC Children’s Hosp. of Pittsburgh, 808 F.3d 638,

644 (3d Cir. 2015) (ADEA); Clark v. Champion

National Sec., Inc., 952 F.3d 570, 579-82 (5th Cir. 2020)

(Americans with Disabilities Act); Torgerson v. City of

Rochester, 643 F.3d 1031, 1043-44 (8th Cir. 2011) (Title

VII); Aubrey v. Koppes, 975 F.3d 995, 1014 (10th Cir.

2020) (ADA); with Ortiz, 834 F.3d at 765 (requiring

district courts to “stop separating ‘direct’ from ‘indirect’

evidence and proceeding as if they were subject to

different legal standards”); see also id. at 766 (“[A]ll

evidence belongs in a single pile and must be evaluated

as a whole. That conclusion is consistent with

McDonnell Douglas and its successors.”); cf. Brady v.

Office of Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir.

2008) (Kavanaugh, J.) (at summary judgment, where

––––––––––––––––––––––––

More on the misapplication of McDonnell Douglas as a

standard of proof in Section II.A, infra.

employer has proffered proof of a non-discriminatory

reason, “the district court need not — and should not

— decide whether the plaintiff actually made out a

prima facie case under McDonnell Douglas”).

II.

The Eleventh Circuit’s Decision Below

Conflicts with This Court’s Precedent

By applying its “convincing mosaic” standard of

proof below, the Eleventh Circuit contravened this

Court’s precedent that no special heightened

standards

proof

apply

employment

discrimination cases.

A. No Special Heightened Standards of Proof

Apply in Employment Discrimination

Cases

Because the ADEA bars an employer from firing

someone “because of such individual’s age,” 29 U.S.C.

§ 623(a)(1), this Court has held that a plaintiff alleging

an employer fired them in violation of this provision

“must prove, by a preponderance of the evidence, that

age was the ‘but-for’ cause of the challenged adverse

employment action.” Gross v. FBL Financial Services,

557 U.S. 167, 180 (2009) (emphasis added).

The standard of proof is simply the “preponderance

of the evidence” standard – the “most common”

standard of proof in civil cases. Concrete Pipe &

Products of California v. Construction Laborers

Pension Trust, 508 U.S. 602, 622 (1993). There is no

“heightened evidentiary requirement for ADEA

plaintiffs,” because Congress could have – but did not

– write such heightened proof requirements into the

ADEA. Gross, 557 U.S. at 178 n. 4; see Reeves v.

Sanderson Plumbing Products, 530 U.S. 133, 148

(2000) (“[W]e have reiterated that trial courts should

not treat discrimination differently from other

ultimate questions of fact.”) (cleaned up).

Likewise, plaintiffs suing under section 703(a)(1)

of Title VII must prove, by a preponderance of the

evidence, that the employer fired or otherwise

discriminated against an individual “because of such

individual’s race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e-2(a)(1). The “conventional

rule of civil litigation . . . generally applies in Title VII

cases,” i.e., a plaintiff must “prove his case by a

preponderance of the evidence using direct or

circumstantial evidence.” Desert Palace v. Costa, 539

U.S. 90, 99 (2003) (cleaned up). That accords with a

“clear and deep rooted” consensus that circumstantial

evidence can be just as reliable as “direct” evidence,

id. at 100; see also Rogers v. Missouri Pac. R. Co., 352

U.S. 500, 508 n.17 (1957); Holland v. United States,

348 U.S. 121, 137-38 (1954), and that Title VII’s text

does not indicate otherwise, Desert Palace, 539 U.S. at

99 (relying on Congress’ failure to refer to “direct

evidence or some other heightened showing” in section

701(m) of Title VII, 42 U.S.C. § 2000e(m)); see also

Postal Service Bd. of Governors v. Aikens, 460 U.S.

711, 716 (1983) (although “the question facing triers

of fact in discrimination cases is both sensitive and

difficult,” courts should not “treat discrimination

differently from other ultimate questions of fact”);

accord St. Mary’s Honor Center v. Hicks, 509 U.S. 502,

524 (1993).

Despite this Court’s clear instruction that

employment discrimination cases should be evaluated

by the same standard of proof as any other civil case

in determining the ultimate question of fact, many

lower courts mistakenly believe the legal presumption

first declared in McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973) is a standard of proof that must

be applied in all employment discrimination cases.

On the contrary, with respect to plaintiffs who do

not have “direct” evidence of discrimination, this

Court’s precedent does not provide that, at summary

judgment, employment discrimination plaintiffs must

produce evidence to meet the McDonnell-Douglas

prima facie case. To require otherwise confuses a

legal presumption with the ultimate standard of proof.

A legal presumption is a rule that, if a party proves

certain facts, the factfinder must take a material fact

as if it is proven true, unless another party produces

enough evidence to the contrary. 1 Jones on Evidence

§ 4:2 (7th ed. 2020). In this respect, legal

presumptions in civil cases affect who bears the

burden of producing evidence of a material fact. E.g.,

Fed. R. Evid. 301. Legal presumptions, however, do

not alone alter the standard of proof that applies to

that material fact – the point on the conceptual

yardstick for deciding how much evidence is enough to

find that material fact to be true. After all, if a

presumption is not rebutted, the factfinder must take

that material fact as if it is already proven true, and

therefore, the standard of proof does not matter.

The McDonnell Douglas legal presumption is just

that: a legal presumption. It is a tool to force

defendant-employers to articulate their purported

justification for the adverse action.

McDonnell

Douglas does not itself require any special heightened

standard of proof to decide summary judgment

motions in Title VII and ADEA cases. If a Title VII or

ADEA plaintiff chooses to rely on it, the

McDonnell-Douglas presumption triggers if – and only

if – the plaintiff establishes a “prima facie case” and

the employer has offered no proof of a legitimate nondiscriminatory reason for its adverse action. Furnco

Construction Corp. v. Waters, 438 U.S. 567, 577 (1978)

(“A prima facie case under McDonnell Douglas raises

an inference of discrimination only because we

presume these acts, if otherwise unexplained, are

more likely than not based on the consideration of

impermissible factors.”).

If the presumption triggers, the burden of

production on the ultimate issue of fact – whether the

defendant acted because of a discriminatory motive –

shifts to the defendant. If the defendant then produces

enough evidence of a legitimate non-discriminatory

reason for its adverse action, see Figueroa v. Pompeo,

923 F.3d 1078, 1087-92 (D.C. Cir. 2019), the

presumption is rebutted and therefore “drops from the

case,” Texas Department of Community Affairs v.

Burdine, 450 U.S. 248, 253 (1981), and “the

McDonnell Douglas framework – with its

presumptions and burdens – is no longer relevant,”

Hicks, 509 U.S. at 510; see id. at 510-511 (“The

presumption, having fulfilled its role of forcing the

defendant to come forward with some response, simply

drops out of the picture.”) (emphasis added); see also

Brady v. Office of Sergeant at Arms, 520 F.3d 490, 493

(D.C. Cir. 2008) (Kavanaugh, J.) (McDonnell Douglas

prima facie case is “almost always irrelevant” because

“by the time the district court considers an employer’s

motion for summary judgment or judgment as a

matter of law, the employer ordinarily will have

asserted a legitimate, non-discriminatory reason for

the challenged decision”).

Whether “the McDonnell Douglas presumption”

applies or is rebutted, the plaintiff “at all times” bears

the burden of persuasion on the ultimate issue of

discriminatory intent; “[i]n this regard [McDonnell

Douglas] operates like all presumptions” in civil cases.

Hicks, 509 U.S. at 507 (citing Fed. R. Evid. 301). If

that presumption does not even affect who bears the

burden of persuasion on the ultimate issue of

discriminatory intent, it certainly cannot affect the

standard of proof for deciding whether the plaintiff’s

evidence meets that burden. And, on that ultimate

issue of fact, this Court’s precedent is clear: only the

preponderance-of-the-evidence standard applies and

not any special heightened standard of proof,

particularly one that depends on whether there is

“direct” evidence of discriminatory intent. Desert

Palace, 539 U.S. at 99; Aikens, 460 U.S. at 716; Reeves

v. Sanderson Plumbing Products, 530 U.S. 133, 148

(2000); Gross v. FBL Financial Services, 557 U.S. 167,

178 n. 4 (2009). That is no less so on summary

judgment, where a court must take as given, not alter,

the “substantive evidentiary standards that apply to

the case.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986). Accordingly, the McDonnell Douglas

presumption itself cannot justify lower courts

imposing a special standard of proof in ADEA and

Title VII cases at summary judgment that turns on

whether there is “direct” evidence.

To be sure, this Court once tersely called the

McDonnell-Douglas

presumption

“inapplicable”

because, in an ADEA case, there was “direct evidence”

that the challenged employer policy discriminated by

age “on its face.” Trans World Airlines v. Thurston,

469 U.S. 111, 121 (1985). And a Justice of this Court

once opined that the burden of proof on causation

should shift to the defendant-employer if a Title VII

“disparate treatment plaintiff” showed “by direct

evidence that an illegitimate criterion was a

substantial factor” in that employer’s decision. Price

Waterhouse v. Hopkins, 490 U.S. 228, 276 (1989)

(O’Connor, J., concurring in the judgment). Whatever

their precedential value at the time, these references

to “direct” evidence no longer matter, given this

Court’s subsequent rulings. See Desert Palace, 539

U.S. at 99-100; Gross, 557 U.S. at 178 n. 4.

Similarly, although lawyers and judges, including

the Justices of this Court, sometimes refer to a

“pretext” inference as an “indirect” way, as opposed to

a “direct” way, to prove discriminatory intent, see, e.g.,

Burdine, 450 U.S. at 256, such a distinction is

colloquial at best. There is nothing special about a

“pretext” inference in employment discrimination

cases. It is just a variation on “the general principle of

evidence law that the factfinder is entitled to consider

a party’s dishonesty about a material fact as

affirmative evidence of guilt.” Reeves, 530 U.S. at 147

(cleaned up).

Thus, it does not matter whether a subset of

evidence in the record supports a finding of

discriminatory motive by way of a “pretext” inference,

by inferring what someone believes from what they

say out loud (a “comments” inference), or by another

of the many ways to infer whether a material fact is

true from some item of evidence. Whatever the labels

for the different inferences, the target is exactly the

same: whether, under the preponderance standard,

there is enough evidence to infer that the defendant

acted “because of such individual’s” race, age, or other

protected category. 42 U.S.C. § 2000e-2(a)(1); 29

U.S.C. § 623(a)(1). “[P]roving the employer’s reason

false [is] part of (and often considerably assists) the

greater enterprise of proving that the real reason was

intentional discrimination.” Hicks, 509 U.S. at 517.

This is why evidence disproving the employer’s

proffered reason permits – but does not compel – a

factfinder to find discriminatory motive. Id. at 519; see

also Reeves, 530 U.S. at 148-149 (same for ADEA).

B. The Court Below Ignored this Court’s

Precedent

Applying

Special

Heightened Standard of Proof

The Eleventh Circuit’s decision in this case

conflicts with this Court’s precedent, because of the

special heightened standard of proof it applied below.

First, the Eleventh Circuit’s special “convincing

mosaic of circumstantial evidence” standard, on its

face, applies only if there is no “direct” evidence of

discriminatory intent. App. 8a-9a; Lewis v. City of

Union City, Georgia, 934 F.3d 1169, 1185 (11th Cir.

2019) (applying convincing-mosaic standard to claims

under Title VII and 42 U.S.C. § 1981(a)); see also

Jefferson v. Sewon Am., 891 F.3d 911, 922 (11th Cir.

2018) (“Because Jefferson presented direct evidence of

discrimination, the district court erred when it

evaluated this evidence under the burden-shifting test

for circumstantial evidence established in McDonnell

Douglas.”).

This Court’s precedent, see Gross, 557 U.S. at 178

n. 4; Desert Palace, 539 U.S. at 99-100; Aikens, 460

U.S. at 714 n. 3, however, requires only a

preponderance-of-the-evidence standard of proof,

regardless of whether the evidence of discriminatory

intent is mostly “direct” or not. In contrast, the

“convincing” mosaic standard is, by its own terms, a

higher standard than preponderance, and resonates

with the “clear and convincing evidence” standard. In

any case, had the Eleventh Circuit followed this

Court’s precedent, it would not have mattered

whether Stephens’s ageist comments were “direct” or

“circumstantial” evidence of discriminatory intent,

because all the evidence would have been considered

together. App. 10a-11a.

Second, the Eleventh Circuit’s special heightened

standard of proof caused it to over-compartmentalize

evidence in a way that distracted from the ultimate

question of whether the plaintiff can prove

discriminatory intent by a preponderance of the

evidence. That court first found that Stephens’s ageist

comments to Melvin were not “direct evidence of

discrimination” but circumstantial. App. 10a-11a.

Thus, though it found the substance, context, and

timing of those comments to “certainly support a

showing of discriminatory intent,” the court below

nonetheless required Melvin to also produce enough

additional evidence that, on its own, would lead a

reasonable jury to discredit the content of each of

three disciplinary letters Stephens issued against

him.3 App. 11a-12a. (The content of those letters, and

that Melvin had received them during a twelve-month

period, was FedEx’s proffered basis for firing him.

App. 5a-6a.)

In doing so, the court below isolated one subset of

evidence, Stephens’s oral comments to Melvin about

his age, from another subset of evidence, the three

disciplinary letters, only because it concluded the

ageist comments were not “direct” enough evidence of

discriminatory intent. Then, in analyzing “pretext”,

the court below ignored the evidence of discriminatory

intent as if it had no weight.

Under this Court’s precedent, however, the

standard of proof does not vary with the different kinds

of inferences that a reasonable jury could draw from

the evidence in the record. Had the Eleventh Circuit

followed this Court’s precedent, it would not have

evaluated what a reasonable jury could infer from the

“pretext” evidence separately from the comments

evidence. Reeves, 530 U.S. at 150 (“In the . . . context of

––––––––––––––––––––––––

The Eleventh Circuit reached this conclusion, crediting

Stephens’ letters, even though this Court’s summary judgment

precedent does not require the jury to credit a defendant’s

proffered justification when it comes from an interested witness.

Reeves, 530 U.S. at 151 ([A]lthough the court should review the

record as a whole, it must disregard all evidence favorable to the

moving party that the jury is not required to believe. . . That is,

the court should give credence to the evidence favoring the

nonmovant as well as that evidence supporting the moving party

that is uncontradicted and unimpeached, at least to the extent

that the evidence comes from disinterested witnesses.”) (cleaned

up; emphasis added).

summary judgment under Rule 56, we have stated that

the court must view the record taken as a whole”)

(cleaned up). Instead, it would have simply asked

whether a reasonable jury could find discriminatory

intent, after taking into account all the evidence in the

record as a whole. In turn, that would have led the

court to consider, for example, whether a reasonable

jury could discredit FedEx’s proffered reasons for firing

Melvin, in light of: (i) Stephens’s baldly ageist

comments, (ii) Melvin’s many promotions and awards,

(iii) the fact that (before Stephens) FedEx issued only

two disciplinary letters to him over a 30-plus year

career with FedEx, and (iv) Senior Vice President

Pigors’ deposition testimony about how rarely FedEx

issues disciplinary letters to Managing Directors and

how it gives them career counseling instead. That is

something the court below did not do. App. 12a-24a.

III.

This Petition Concerns an Important

Federal Question Because Special

Heightened Standards of Proof Distort

How

Lower

Courts

Analyze

Discrimination Cases

This petition’s question is important. Special

heightened

standards

proof

federal

discrimination lawsuits implicate an important part

of the federal judiciary’s work.4 That may explain why,

––––––––––––––––––––––––

In fiscal years 2015-2019, about 14,600 employment

discrimination lawsuits on average were filed annually in the

federal district courts. Federal Judicial Center, Judicial Facts

and Figures 2019, tbl. 4.4. (nature of suit: civil-rights:

employment and civil-rights: ADA-employment).

over the past two decades, federal judges have openly

lamented the special standards of proofs that they

believe they must use to decide summary judgment

motions in employment discrimination cases. E.g.,

Coleman v. Donahoe, 667 F.3d 835, 863 (7th Cir. 2012)

(Wood, J., concurring); Griffith v. City of Des Moines,

387 F.3d 733, 743 (8th Cir. 2004) (Magnuson, J.,

concurring); Wells v. Colorado Dep’t of Transp., 325

F.3d 1205, 1225-1228 (10th Cir. 2003) (Hartz, J.,

concurring); Denny Chin, Summary Judgment in

Employment Discrimination Cases: A Judge's

Perspective, 57 N.Y.L. Sch. L. Rev. 671 (2013) (Judge,

Second Circuit); Timothy M. Tymkovich, The Problem

with Pretext, 85 Denver U. L. Rev. 503, 521-522 (2008)

(Judge, Tenth Circuit).

Among their concerns, some judges have criticized

any special standard of proof that requires deciding,

at summary judgment, whether evidence of

discriminatory intent counts as “direct” evidence.

Such an inquiry is unduly difficult. Wells, 325 F.3d at

1225 (Hartz, J.); Tymkovich, supra at 521. It distracts

from and obscures the ultimate issue of whether the

plaintiff has enough evidence of discriminatory intent

to proceed to trial. E.g., id. at 522; Wells, 325 F.3d at

1225. It cuts against the “clear and deep rooted”

consensus that circumstantial evidence can be as or

more reliable than “direct” evidence, Desert Palace,

539 U.S. at 100. See Tymkovich, supra at 522.

These judges also critique the special heightened

standards of proof for causing courts to overcompartmentalize evidence. McDonnell Douglas was

“never intended to be rigid, mechanized, or

ritualistic.” Furnco Construction Corp. v. Waters, 438

U.S. 567, 577 (1978). However, by applying McDonnell

Douglas or its alternatives (like “convincing mosaic”)

as heightened standards of proof, the courts often

commit the same fatal error as the Eleventh Circuit

made below: considering certain evidence only with

respect to one “stage” of the inquiry while ignoring it

throughout the rest of the inquiry. Wells, 325 F.3d at

1225 (Hartz, J.); Tymkovich, supra at 521. In the case

below, the Eleventh Circuit failed to consider evidence

of discriminatory intent when evaluating whether

Melvin had shown sufficient evidence of pretext. App.

10a-12a. Other courts never examine evidence of

pretext because they determine a plaintiff did not

show a prima facie case. See Wells, 325 F.3d at 1224

(“Is it really possible that McDonnell Douglas . . . could

require judgment against a plaintiff when the

evidence as a whole would support a plaintiff’s verdict

but the plaintiff somehow has not made out a prima

facie case?”).

Finally, judges have noted that special heightened

proof standards defeat this Court’s original purpose

for McDonnell Douglas: “to compensate for the fact

that direct evidence of intentional discrimination is

hard to come by.” Price Waterhouse v. Hopkins, 490

U.S. 228, 271 (1989) (O'Connor, J., concurring).

Despite the unavailability of direct evidence, this

Court wanted to assure that the “plaintiff [has] his

day in court.” Trans World Airlines v. Thurston, 469

U.S. 111, 121 (1985).

However, judges have noted that the special

heighted proof standards have had the opposite effect.

Chin, supra at 677. One frequently cited study found

that employment discrimination cases ended at

summary judgment 77% of the time, whereas contract

and tort cases had summary judgment grant rates of

59% and 61%, respectively. See Memorandum from

Joe Cecil & George Cort, Fed. Judicial Ctr., to Judge

Baylson, at 9 (table 4) (Aug. 13, 2008). Judge Chin, of

the Second Circuit, blames this disparity in summary

judgment rates, at least in part, on the complexity and

inefficiency of the McDonnell Douglas framework.5

With their multiple stages and shifting burdens,

special heightened standards of proof multiply the

opportunities for discrimination plaintiffs’ cases to be

dismissed based on something other than failure to

prove discrimination.

Accordingly, as this Court works to clarify how

substantive employment discrimination law applies,

e.g., Bostock v. Clayton County, 140 S. Ct. 1731 (2020);

Patterson v. Walgreen Co., 140 S. Ct. 685 (2020) (Alito,

J., with whom Thomas, J., and Gorsuch, J., join,

concurring in the denial of certiorari), it should work

to clarify the role of special heightened standards of

proof, if any, in such cases at summary judgment. In

the end, if judges continue granting defendants’

summary judgment motions based on special

heightened standards of proof that neither Congress

nor this Court’s precedent require, it will not matter

who substantive employment discrimination laws are

meant to protect. The protection will be an illusion.

––––––––––––––––––––––––

5 Of course, the same critiques can be leveled at any of the

similarly complex and distracting special heightened standards

of proof.

CONCLUSION

This Court should grant this petition.

Respectfully submitted,

Sachin S. Pandya

UNIVERSITY OF

CONNECTICUT

SCHOOL OF LAW

65 Elizabeth Street

Hartford, CT 06105

Amanda A. Farahany

Counsel of Record

Benjamin A. Stark

Grace A. Starling

Catherine A. Gavrilidis

Zachary T. Panter

BARRETT & FARAHANY LLC

1100 Peachtree Street N.E.

Suite 500

Atlanta, GA 30309

(404) 214-0120

amanda@justiceatwork.com

Attorneys for Petitioner

February 8, 2021

APPENDIX

APPENDIX A — Appendix

OPINIONAOF THE UNITED

STATES COURT OF APPEALS FOR THE

ELEVENTH CIRCUIT, FILED MAY 21, 2020

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

May 21, 2020, Decided

No. 19-11872 Non-Argument Calendar

D.C. Docket No. 1:17-cv-00789-CC

RODDIE MELVIN,

Plaintiff-Appellant,

versus

FEDERAL EXPRESS CORPORATION,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Georgia

Before ROSENBAUM, GRANT, and LUCK, Circuit

Judges.

PER CURIAM:

Roddie Melvin appeals the district court’s grant

of summary judgment in favor of his former employer,

Appendix A

Federal Express Co. (“FedEx”), on his age-discrimination

and retaliation claims under the Age Discrimination in

Employment Act (“ADEA”), 29 U.S.C. § 623(a)(1), (d).

On appeal, Melvin argues that he created a “convincing

mosaic” of circumstantial evidence showing that FedEx

terminated his employment because of his age. He also

argues that he established a prima facie case of retaliation

and that FedEx’s justifications were pretextual. After

careful review, we affirm.

For purposes of reviewing the district court’s grant

of summary judgment, we present the facts in the light

most favorable to Melvin and resolve all factual disputes

in his favor. See Alston v. Swarbrick, 954 F.3d 1312, 1317

(11th Cir. 2020).

At the time of his termination, Melvin, an AfricanAmerican man over forty years old, had been working for

FedEx for thirty-three years. Nearly thirty of those years

were spent in a management role, during which time he

received several promotions and merit awards and worked

at FedEx facilities around the country.

From 2006 until his termination in November 2016,

Melvin was a managing director based in Atlanta.

He oversaw one of four districts within the southern

region of FedEx’s Air Ground Freight Services Division

(“AGFS”) and supervised eight senior managers, who in

turn supervised various operations managers. Over that

time, Melvin reported to three successive vice presidents:

Appendix A

Reginald Owens, Sr., Ricky Brock, and Joseph Stephens.

Stephens became vice president of the southern region in

April 2016 after Brock retired.

Before being supervised by Stephens, Melvin had

received two disciplinary letters at FedEx. The first letter

came in 2008 from Owens, who issued it for failing to

communicate critical information—damage to aircraft—

to Owens and upper management. Then, on August 12,

2015, Brock issued Melvin written discipline for poor

judgment and failing to meet established standards. As

an “example of [his] poor judgment,” the letter stated

Melvin acted “directly in violation of [Brock’s] instruction”

with regard to ramp security and his personal vehicle.

According to Brock’s testimony, Melvin had continued

to park his personal vehicle inside the secure area at

the airport after Brock told him not to do so. Brock also

cited Melvin’s “failure to communicate major exceptions,”

which referred to issues like flight delays or mishandled

packages.

Despite this discipline, both vice presidents thought

favorably of Melvin. Owens testified that Melvin was a

“sound director” who “ran a good ship” and “took care of

business.” Brock testified that Melvin was respected by

his peers, that he was receptive to changing his style and

approach to leadership, and that, after the August 2015

disciplinary letter, Melvin was on a path to correction, not

a path to termination.

But that changed with Stephens. In May 2016, in his

first one-on-one conversation with Melvin after becoming

Appendix A

his boss, Stephens asked Melvin his age and when he was

going to retire.1 Stephens wondered if Melvin would “be

able to keep up” “given . . . [his] age.” Questioning whether

Melvin “really want[ed] to do this job anymore,” Stephens

suggested he was too old and should “let the young guys

do it.” Stephens fired Melvin within six months of this

conversation.

On June 16, 2016, Stephens issued Melvin a disciplinary

letter for leadership failure. According to the letter,

Melvin falsely reported to Stephens that he had complied

with Stephens’s instruction to issue corrective action to

his management team. The letter further admonished

Melvin for simply forwarding emails from Stephens to

his subordinates rather than “taking a sense of ownership

and demonstrating a leadership role.”

Approximately one month later, on August 11, 2016,

Stephens issued Melvin a disciplinary letter for “continued

deficiencies with your administrative responsibilities and

for failing to anticipate and prevent, or adequately address,

several operational issues.” The letter documented several

administrative deficiencies which, according to the letter,

indicated that Melvin was “approving various activities

without proper review” and “delegating without clear

instruction and subsequent follow up to ensure proper

completion and accuracy.” Further, according to the letter,

Melvin oversaw several delays and service failures, and

an audit showed unacceptable ratings for Melvin’s district.

1. Stephens denies making these comments, but we must credit

Melvin’s testimony for purposes of summary judgment. See Alston

v. Swarbrick, 954 F.3d 1312, 1317 (11th Cir. 2020).

Appendix A

Stephens’s original draft of the August 2016 letter

terminated Melvin’s employment. That was consistent

with FedEx policy, which provided that three written

notifications of deficiency within a twelve-month period

normally results in termination. The August 2016 letter

was Melvin’s third disciplinary letter within a twelvemonth period by one day. After Stephens spoke with

FedEx’s legal department, the letter was modified to

provide that Melvin could retain employment provided

he submitted and adhered to a performance-improvement

agreement. Thereafter, Melvin and Stephens agreed on

a performance-improvement agreement.

Less than 45 days after the August 2016 letter,

Stephens spoke with his supervisor, Senior Vice President

Michael Pigors, and stated that he wanted to give Melvin

a third letter and terminate his employment. Pigors told

Stephens that he needed to give Melvin more time and “a

chance to fix what he needs to fix.” Stephens did not issue

a third letter at that time.

On October 27, 2016, Stephens suspended Melvin

with pay. Then, eight days after that, on November 3,

Stephens issued Melvin a disciplinary/termination letter

for insubordination and leadership failure. Stephens

listed four reasons for the letter: (1) Melvin allowed

Manager Kenneth Baxter to be demoted in violation

of Stephens’s express direction; (2) Melvin repeatedly

parked his personal vehicle in an unapproved location; (3)

Melvin failed to report the mishandling of 141 packages

on October 12; and (4) Melvin failed to eliminate use of a

certain delay code as Stephens had instructed. The letter

Appendix A

explained that Melvin’s employment was terminated

because he had received three letters of deficiency within

a twelve-month period.

After his initial conversation with Stephens and after

receiving each of the three letters described above, Melvin

complained verbally to human resource officials Wanda

English and Shannon Brown. In these conversations,

Melvin reported Stephens’s ageist comments and conveyed

his belief that Stephens had intended to get rid of him from

the outset due to his age and then began “systemically . . .

putting together a list of things” to push him out.

When Melvin first complained to Brown about

Stephens’s comments, Brown “seemed outraged” and

promised that he was “going to be making some calls to

follow up to insure that this doesn’t happen again.” After

the June 2016 letter, Brown again promised Melvin that

he was going to follow up. In their depositions, however,

both Brown and English denied telling Stephens about

Melvin’s complaints. Stephens testified that he learned

that Melvin had complained to Brown after receiving a

disciplinary letter, but he denied knowing that Melvin had

complained of age discrimination.

Melvin filed a charge of discrimination with the Equal

Employment Opportunity Commission on November 11,

2016. He also appealed his termination and complained of

age discrimination through FedEx’s internal processes.

FedEx’s lead counsel investigated Melvin’s complaint

and found “no policy violations,” concluding that Melvin’s

allegations were unsubstantiated. The appeals board

Appendix A

upheld Melvin’s termination in early December 2016.

Melvin’s replacement was nine years younger than Melvin.

II.

Melvin sued FedEx in federal court in March 2017,

alleging, as relevant here, age discrimination and

retaliation under the ADEA, 29 U.S.C. § 623(a)(1), (d). 2

Melvin alleged that Stephens terminated him based on

his age and retaliated against him after he complained

about Stephens’s conduct. After discovery, FedEx filed a

motion for summary judgment, which the district court

granted in full based on a magistrate judge’s report and

recommendation. The district court concluded that Melvin

had not produced sufficient evidence to rebut FedEx’s

proffered legitimate, nondiscriminatory reasons for

his termination or to show that Stephens was aware of

Melvin’s complaints of age discrimination when he made

the decision to terminate Melvin’s employment. Melvin

now appeals.

III.

We review the grant of summary judgment de novo.

Alston, 954 F.3d at 1317. “We view the evidence and all

factual inferences therefrom in the light most favorable to

the non-moving party, and resolve all reasonable doubts

about the facts in favor of the non-movant.” Id. (quotation

2. On appeal, Melvin does not address his claims of race

discrimination and retaliation under 42 U.S.C. § 1981, so we deem

these claims abandoned. See Timson v. Sampson, 518 F.3d 870, 873

(11th Cir. 2008) (issues not briefed on appeal are deemed abandoned).

Appendix A

marks omitted). Summary judgment is appropriate 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).

At the summary-judgment stage, the judge’s function

is not to weigh the evidence but to determine if there is

a “genuine issue for trial.” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d

202 (1986). “[T]here is no issue for trial unless there is

sufficient evidence favoring the nonmoving party for a

jury to return a verdict for that party.” Id. Therefore,

summary judgment may be granted “[i]f the evidence is

merely colorable or is not significantly probative.” Id. at

249-50 (citations omitted).

IV.

The ADEA prohibits private employers from firing

an employee who is at least 40 years of age “because

of” the employee’s age. 29 U.S.C. §§ 623(a)(1), 631(a).

“[T]he language ‘because of’ . . . means that a plaintiff

must prove that discrimination was the ‘but-for’ cause of

the adverse employment action.” Sims v. MVM, Inc., 704

F.3d 1327, 1332 (11th Cir. 2013). This standard is met if

the plaintiff’s age played a role in the employer’s decisionmaking process and had a determinative influence on the

outcome. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176,

129 S. Ct. 2343, 174 L. Ed. 2d 119 (2009).

We ordinarily evaluate ADEA claims based on

circumstantial evidence, which is what Melvin relies on

Appendix A

here, under the burden-shifting framework established

in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Sims, 704 F.3d at

1333. Alternatively, “the plaintiff will always survive

summary judgment if he presents circumstantial evidence

that creates a triable issue concerning the employer’s

discriminatory intent.” Id.

“A triable issue of fact exists if the record, viewed in a

light most favorable to the plaintiff, presents a convincing

mosaic of circumstantial evidence that would allow a jury

to infer intentional discrimination by the decision maker.”

Id. (quotation marks omitted). A plaintiff may establish

a “convincing mosaic” with “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.” Lewis v. City of Union City, 934 F.3d 1169,

1185 (11th Cir. 2019) (quotation marks omitted).

Melvin contends that he demonstrated such a

convincing mosaic with evidence of discriminatory

comments by Stephens and of pretext in FedEx’s rationale.

The question before us, then, is whether Melvin’s evidence

is sufficient to raise a reasonable inference that FedEx

discriminated against him because of his age. 3 Chapter 7

3. FedEx disputes whether Melvin established a prima facie

case of discrimination under McDonnell Douglas Corp. v. Green,

411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Its arguments

on this point, however, relate primarily to its proffered reasons

10a

Appendix A

Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1256 (11th

Cir. 2012) (“Whatever form it takes, if the circumstantial

evidence is sufficient to raise a reasonable inference that

the employer discriminated against the plaintiff, summary

judgment is improper.” (quotation marks omitted)).

A. Discriminatory Comments

Ageist comments that are not direct evidence of

discrimination may still “provide circumstantial evidence

to support an inference of discrimination.” Ross v. Rhodes

Furniture, Inc., 146 F.3d 1286, 1291 (11th Cir. 1998)

(discussing racial comments). In Damon v. Fleming

Supermarkets of Florida, Inc., for example, we held that

a supervisor’s comment that he wanted “aggressive, young

men” to be promoted was probative as to whether age

animus motivated the decision to terminate the plaintiff.

196 F.3d 1354, 1362-63 (11th Cir. 1999). Likewise, in

Alphin v. Sears, Roebuck & Co., we stated that a comment

by a supervisor that the plaintiff was “too old” “certainly

supports a showing of discriminatory intent if we interpret

the remark in the light most favorable to Alphin.” 940

F.2d 1497, 1501 (11th Cir. 1991); see also Mora v. Jackson

Mem’l Found., Inc., 597 F.3d 1201, 1204-05 (11th Cir. 2010)

for Melvin’s termination and therefore are more appropriately

addressed at the pretext stage of the analysis. See Alvarez v. Royal

Atl. Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010). In any

case, even assuming FedEx is correct that Melvin failed to create a

prima facie case, we would still analyze whether he created a triable

issue of discrimination based on a “convincing mosaic” theory, which,

at least in this case, is largely indistinguishable from our ordinary

pretext analysis.

11a

Appendix A

(comments by a supervisor that a plaintiff is “too old” can

be circumstantial evidence of age discrimination).

Here, we agree with Melvin that Stephens’s ageist

remarks to him, if credited, are probative as to whether

age animus motivated the decision to terminate his

employment. See Damon, 196 F.3d at 1362-63. According

to Melvin, Stephens pressured him to resign in their

first one-on-one meeting because of his age, questioning

whether he “wanted to continue to do this” “given . . .

[his] age” and stating that he should “let the young guys

do it.” Approximately one month after this conversation,

Stephens issued Melvin a disciplinary letter. And within

six months of this conversation, Stephens fired him. Given

the “substance, context, and timing” of the comments,

id. at 1362, they “certainly support[] a showing of

discriminatory intent if we interpret the remark[s] in the

light most favorable to [Melvin],” Alphin, 940 F.2d at 1501.

Nevertheless, the comments alone are not sufficient

to meet Melvin’s burden of creating a triable issue of

discriminatory intent, nor do we understand Melvin

to argue as much. E.g., Crawford v. City of Fairburn,

Ga., 482 F.3d 1305, 1309 (11th Cir. 2007) (“Crawford

erroneously argues that evidence of a discriminatory

animus allows a plaintiff to establish pretext without

rebutting each of the proffered reasons of the employer.”).

In Damon, for example, the plaintiff presented additional

evidence demonstrating that the employer’s proffered

reasons were pretextual, which, when combined with the

discriminatory comments, was enough to create a triable

issue of discrimination. See Damon, 196 F.3d at 1363 (“[A]

12a

Appendix A

reasonable jury could conclude that the specific reasons

for termination given by Fleming were a pretext.”); see

also Alphin, 940 F.2d at 1501 (finding that other evidence

of pretext, combined with the discriminatory comment,

created a triable issue of discrimination). Accordingly,

we consider the ageist remarks along with Melvin’s other

pretext evidence to determine whether there is a triable

issue of discrimination.

B. Pretext in Employer’s Rationale

A plaintiff may create an inference of discriminatory

intent “by showing that [the employer’s] proffered reasons

are not credible.” Alvarez v. Royal Atl. Developers, Inc.,

610 F.3d 1253, 1265 (11th Cir. 2010). To show than an

employer’s reason is not credible, the plaintiff “must

meet that reason head on and rebut it,” Chapman v.

AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en

banc), demonstrating “weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the

employer’s rationale.” Holland v. Gee, 677 F.3d 1047,

1055-56 (11th Cir. 2012) (quotation marks omitted). But

plaintiffs may not recast the reason or merely quarrel with

its wisdom. Chapman, 229 F.3d at 1030. It is not our role to

second-guess the business decisions of employers. Id. Our

concern is whether an employment decision was motivated

by unlawful discriminatory animus, not whether the

decision was prudent or fair, and we limit ourselves “to

whether the employer gave an honest explanation of its

behavior.” Id. (quotation marks omitted).

13a

Appendix A

FedEx claims that it terminated Melvin’s employment

because of a pattern of insubordination and leadership

failure, as documented in the three disciplinary letters

Stephens issued Melvin. Melvin’s deficiencies, according to

FedEx, included administrative failures, insubordination,

failure to manage his subordinates, and failure to timely

notify Stephens of important matters. FedEx further

argues that Melvin had been disciplined for similar

deficiencies before Stephens became his supervisor.

Melvin maintains that a jury could conclude that FedEx’s

proffered reasons—as reflected in the three disciplinary

letters issued by Stephens—were pretextual.4

1. June 16, 2016, Letter

The June 16, 2016, disciplinary letter related to various

past-due administrative matters that were pending when

Stephens became vice president of the southern region.

Early in his tenure, Stephens issued guidance to his

managing directors that he expected them to bring their

districts up to date and to counsel their senior managers

that timely compliance would be enforced with more

severe discipline going forward. According to Stephens,

4. In several footnotes, Melvin makes conclusory assertions

that the district court violated Rule 56(f)(2), Fed. R. Civ. P., by

granting summary judgment on a ground not presented in FedEx’s

motion for summary judgment. But these passing references are

insufficient to raise that issue for appeal. See Sapuppo v. Allstate

Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have long

held that an appellant abandons a claim when he either makes only

passing references to it or raises it in a perfunctory manner without

supporting arguments and authority.”). Nor do we believe the court

went beyond the grounds raised by FedEx.

14a

Appendix A

he instructed the managing directors “to make sure that

everyone gets a documented OLCC”—a form of written

counseling—”that if this happens again in the future, you

will receive discipline up to and including termination,”

and gave them a deadline of May 31. On or around May 18,

Melvin wrote him a memorandum stating that everything

had been taken care of. Stephens asked his assistant to

take a closer look, and “what he said was completed, was

not completed.” Giving Melvin the “[b]enefit of the doubt,”

Stephens waited a couple weeks and checked again, but

it was “[s]till not done.” At that point, Stephens testified,

he decided to discipline Melvin for failing to comply with

Stephens’s instruction and mispresenting that he had

done so.

Melvin has not shown pretext with respect to this

issue. The record shows that Melvin sent Stephens a

memorandum on May 18, 2016, documenting the corrective

actions that had been taken for all past-due items. Further,

Melvin testified that he relied on his senior managers to

issue written counseling to their subordinates but later

learned that his senior managers “had not issued the

written counseling.” In order words, Melvin effectively

admitted that his May 18 memorandum to Stephens was

not accurate.

Nor was it unreasonable for Stephens to hold Melvin

responsible for the inaccurate memorandum and the

failure of his subordinates. Given that Stephens and his

assistant were able to review whether the memorandum

was accurate, there appears to be no reason Melvin

could not have done the same thing before submitting

15a

Appendix A

it to Stephens. And while Melvin claims that other

managing directors also had past-due matters and were

not disciplined, the evidence is undisputed that the other

managing directors got their districts up to date and

accurately reported doing so. Accordingly, Melvin has not

demonstrated pretext with respect to this matter.

2. August 11, 2016, Letter

The August 11, 2016, letter disciplined Melvin

for “continued deficiencies with [his] administrative

responsibilities and for failing to anticipate and present,

or adequately address, several operational issues.” The

letter documented several administrative deficiencies

which, according to the letter, indicated that Melvin was

“approving various activities without proper review” and

“delegating without clear instruction and subsequent

follow up to ensure proper completion and accuracy.”

These included inaccurate travel and expense reports

and an inaccurate requisition for extra staff. Further,

according to the letter, Melvin oversaw several delays and

service failures and failed to timely record an injury, and

an audit showed unacceptable ratings for Melvin’s district.

Melvin contends that the matters identified in the

letter did not warrant discipline and that there is a factual

dispute as to the frequency of his paperwork errors. But

while Melvin believed that his error rate was lower than

that of other managing directors in the southern region,

there is no evidence that another managing director had

similar errors during the same time period and was not

disciplined, let alone that another managing director

16a

Appendix A

who had recently been disciplined for delegating without

clear instruction and failing to ensure proper completion

and accuracy had been. Nor does Melvin even address

the various other matters identified in the August 2016

letter. He essentially argues that Stephens’s expectations

were unreasonable and unfair, but that is not enough to

establish a violation of the ADEA, see Chapman, 229

F.3d at 1030, and he presents no evidence from which a

reasonable jury could conclude that the manifold issues

listed in the August 2016 letter were false or pretextual.

3. November 3, 2016, Letter

Stephens listed four reasons for issuing the November

2016 letter terminating Melvin’s employment. We address

each in turn.

Demotion of Ken Baxter

The November 2016 letter first asserts that Melvin

violated Stephens’s express instruction not to demote

Baxter by permitting one of his senior managers to

demote Baxter and “place him on a 90 day [personal leave

of absence] dated September 11, 2016.” Stephens testified

that Melvin took it upon himself to demote Baxter, without

involving human resources, in violation of both Stephens’s

express direction and FedEx policy.

In the light most favorable to Melvin, the relevant

context is as follows. Baxter was a South Carolina

operations manager within Melvin’s district who wanted

to transfer to Indianapolis, where his wife had recently

17a

Appendix A

moved. After bidding unsuccessfully on management

positions in Indianapolis, Baxter began applying for hourly

positions. But because of the way FedEx categorizes

employees, Baxter was always ranked lower than other

applicants who were hourly employees. On August 26,

2016, Baxter emailed his senior manager, Fred Laskovics,

to ask for help. Laskovics forwarded the email to George

Sims, the human-resources personnel representative for

that region, who responded, copying Melvin, that Baxter

needed to request a “step down from his current position

and be placed in an open Handler or Material position.

He can then be placed on [leave of absence] from here.”

Melvin discussed the matter with Stephens, who said

he would help facilitate the transfer and that someone

from Indianapolis would be sending a “PCN” number to

enable Baxter to make the move. Stephens told Melvin not

to demote Baxter in the meantime. Melvin waited three

or four weeks without hearing anything.

Meanwhile, Laskovics met with Baxter to go over

Sims’s instructions, and Baxter said he would apply for

an hourly position in South Carolina and then request a

personal leave of absence to apply for jobs in Indianapolis.

Baxter then did so and, as the only applicant for the

position, was hired as an hourly employee on September

11, 2016. Baxter also completed paperwork to request a

personal leave of absence, which Melvin granted. Neither

Melvin nor Laskovics demoted Baxter, according to

Laskovics.

18a

Appendix A

In mid-September 2016, Stephens emailed Melvin and

informed him that Baxter was applying for management

positions and, despite his prior statements to Laskovics,

was not interested in a handler position. Stephens wrote,

“This is why I explicitly advised you NOT to simply

demote and place this individual on a PLOA. He’s not

bidding on Handler or Material Handler positions, despite

how you handled. In your situation, I don’t understand

why you wouldn’t comply with my direction back on 09/01.”

Melvin wrote back that “this guy has cost me more than

you know” and that he was simply trying to help Baxter

and “thought [he] was doing the right thing.”

Melvin testified that soon after, he and Stephens

spoke, and Melvin explained what had happened and

why. Stephens said he understood what Melvin had

done and that he was “okay with it,” and he did not give

“any counseling other than to say let’s make sure this

doesn’t happen again.” Stephens did not “state or imply

that [Melvin] had been insubordinate or that [he] had

committed a discipline-worthy offense.”

We conclude that Melvin has not shown pretext as to

the Baxter matter. To be sure, Melvin presented some

evidence to contradict the factual grounds asserted by

Stephens. Testimony from Melvin and Laskovics, the

senior manager most directly involved with the Baxter

matter, established that Melvin and Laskovics received and

followed guidance from human resources about Baxter’s

transfer request, did not demote Baxter, and granted a

leave of absence only after Baxter had, consistent with

FedEx policy, bid on and been hired for a handler position

19a

Appendix A

in South Carolina. Further, Stephens testified that it was

not inappropriate for a managing director to grant a leave

of absence requested by an employee.

Despite this evidence, we agree with the district

court’s reasoning that, even if Stephens was mistaken as

to the actual facts of what happened with Baxter, there

was “no evidence to refute that Stephens had an honest,

good-faith belief that [Melvin] had violated his directive

not to demote Baxter.” See Smith v. Papp Clinic, P.A.,

808 F.2d 1449, 1452-53 (11th Cir. 1987) (“[I]f the employer

fired an employee because it honestly believed that the

employee had violated a company policy, even if it was

mistaken in such belief, the discharge is not ‘because of

[discrimination].’”).

On September 14, 2016, Stephens wrote an email

accusing Melvin of disregarding his direction not to

demote Baxter. There is no evidence that, at the time

he sent the email, he did not in good faith believe that

accusation. Further, we agree with the district court

that “there is no evidence that Stephens was aware

Baxter independently applied for the hourly position in

Columbia, South Carolina.” In response, Melvin points

to his testimony that, after the September 14 email, he

spoke with Stephens and explained what had happened,

and Stephens said he understood and was “okay with it.”

But the court persuasively explained that Melvin could

not have told Stephens how Baxter got into an hourly

position because Melvin did not know those facts until

Laskovics’s deposition for this case. And Melvin’s mere

denial to Stephens—that he did not demote Baxter—is not

20a

Appendix A

enough, where there is no evidence that Stephens learned

of information to corroborate that denial. Accordingly,

Melvin has not established pretext with regard to the

Baxter matter. 5

Unapproved Parking

The November 2016 termination letter next asserted

that, despite being “advised by both Corporate Security

and VP Brock that [he] w[as] not permitted to park

inside the perimeter fence at the FOPRT facility,” Melvin

continued to park his personal vehicle “in the unapproved

location.”

Undisputed record evidence shows that, in August

2015, Melvin’s prior supervisor, Brock, issued a letter

disciplining Melvin for “creat[ing] direction to security

that was directly in violation of [Brock’s] instruction” with

regard to ramp security and his personal vehicle. Brock

testified that the discipline was based on Melvin’s parking

of his car inside the secure area after Brock told him not

to do so. Then, on September 20, 2016, Stephens received

an email from Katina Burchfield, the managing director

of security, memorializing a conversation between her

and Stephens a few days earlier. According to the email,

5. We do not consider the October 27, 2016, email Stephens

received from George Sims, in which Sims wrote that Melvin had

admitted to Sims that he violated Stephens’s instruction not to demote

Baxter. Because there was evidence that Stephens had decided to

terminate Melvin’s employment by mid-October, a reasonable jury

could conclude that any information learned by Stephens on or after

that date played no role in the employment decision.

21a

Appendix A

Burchfield had called Stephens to discuss “unauthorized

employee parking.” Burchfield reported that Melvin had

been parking his personal vehicle inside the secure area,

and that when confronted by another security employee,

Melvin had stated that “he would discontinue.” Yet as

indicated in the November 2016 termination letter,

Melvin parked his personal vehicle in the secure area nine

additional times in less than a two-month period.

Melvin has not demonstrated pretext with regard to

this issue. Melvin claims that he followed all appropriate

parking rules and parked inside the security fence

only with permission from security. But at best he has

shown that security was internally conflicted as to the

appropriateness of Melvin’s parking of his personal vehicle

inside the secure area. And it remains undisputed that

Melvin was disciplined for disregarding the instruction

of his direct supervisor not to park in the secure area,

that no other supervisor had told Melvin he could park

in the secure area, and that, according to the email

Stephens received, Melvin continued to park in the secure

area even after telling security he “would discontinue.”

Accordingly, Melvin’s evidence is insufficient to show that

his unauthorized parking was a false reason or a pretext

for discrimination.

Mishandling of Packages

Third, according to the November 2016 letter, Melvin

failed to report to the Regional Office the mishandling

of 141 packages, and when questioned about why it was

not reported, Melvin did not know the full impact, was

22a

Appendix A

unaware of the root cause, and claimed that “[he] didn’t

think it was any big deal.”

Melvin denies claiming that it was not a big deal,

but he has not otherwise shown that this reason was

false or pretextual. While Plaintiff essentially blames a

subordinate manager for failing to report the incident to

Stephens and states that he explained to Stephens that

this manager was responsible for that failure to report, he

does not dispute that the service failure was not promptly

reported by him or one of his subordinates. The fact that

Stephens held Melvin responsible for the failure to report

the exception that occurred within his region is a business

decision and is not evidence of pretext. See Chapman, 229

F.3d at 1030. Melvin presents no evidence of a comparator

who was treated more favorably for the same conduct.

We also note that Melvin’s prior supervisors raised

similar issues with his performance, and that Melvin was

disciplined in 2008 for failing to report a service failure.

Accordingly, Melvin has not shown pretext as to this issue.

Use of Delay Code

Finally, the November 2016 letter states that, despite

instructions to “discontinue the application of the TD delay

code due to the excessive use identified in [his] District

(97 of 1,420 flights or 6.83% of all departures),” Melvin’s

district “continued to utilize the TD delay code 19 more

times on 268 flights or 7.09% of all departures; actually

increasing the frequency of use.”

23a

Appendix A

The relevant context is this. FedEx used various codes

to classify the cause of flight delays. The “TD” code was

used to note a delay caused by a discrepancy between the

pilot’s clock and the ramp’s clock. At some point, FedEx

adopted a new time-keeping system that was intended

to synchronize employees’ clocks and eliminate time

discrepancies.

Stephens testified that, in light of the new system,

he instructed his managing directors to eliminate usage

of the TD delay code and to more accurately code the

specific issue—such as weather, crew, etc.—that caused

a delay. He stated that Melvin’s district was using the TD

delay code excessively and that the high rate of use was

“covering up an operational deficiency.” Melvin argues

that Stephens never instructed him to eliminate usage

of the code immediately. Rather, the instruction was to

reduce it, and Stephens, according to Melvin, understood

this to be Melvin’s understanding.

Melvin has not shown pretext as to this issue. Even

assuming Stephens instructed his managing directors

to reduce, rather than eliminate, use of the code, and

that some use of the code remained necessary, Stephens

explained in the warning/termination letter that Melvin’s

district had actually increased the frequency of use of

the TD delay code. Melvin points to no evidence creating

a genuine issue of material fact concerning whether

his district increased the use of that code. Nor does he

identify evidence suggesting that the other managing

directors under Stephens were unable to reduce use of

the TD delay code within their districts, or that another

24a

Appendix A

managing director was not disciplined despite overseeing

an increase in its use. So even in the light most favorable

to Melvin, the undisputed evidence still shows that Melvin

failed to implement Stephens’s instructions. Accordingly,

there is no genuine issue to go before a jury relating to

the TD delay code.

C. Conclusion

Although Melvin has presented some evidence

that Stephens, his supervisor, made ageist remarks

to him within six months of his termination, he has

not established pretext in FedEx’s rationale for the

termination decision. We therefore conclude that Melvin

has not presented sufficient circumstantial evidence for

a reasonable jury to conclude that his age was a “but-for”

cause of the termination decision. See Gross, 557 U.S. at

176; Sims, 704 F.3d at 1332-33; see also Crawford, 482

F.3d at 1309. Accordingly, we affirm the district court’s

grant of summary judgment on Melvin’s claim of age

discrimination.

Turning to Melvin’s retaliation claim, the ADEA

prohibits private employers from retaliating against

employees who “opposed any practice” made unlawful by

the ADEA. 29 U.S.C. § 623(d). To succeed on a retaliation

claim, the plaintiff must prove a causal connection between

his protected activity and the alleged retaliatory conduct.

Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir.

2002). This generally requires a showing “that the decision

25a

Appendix A

maker was aware of the protected conduct at the time of

the adverse employment action.” Brungart v. BellSouth

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

requirement rests on the common-sense notion that “[a]

decision maker cannot have been motivated to retaliate

by something unknown to him.” Id.

Therefore, even in cases where there is temporal

proximity between the protected conduct and the adverse

employment action, that 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.” Id. In other words, when there is

“unrefuted testimony of the decision maker that he knew

nothing of the protected conduct,” temporal proximity

alone is not a sufficient basis to allow a factfinder to decide

“that the decision maker is lying.” Id. Nor can knowledge

held by other corporate officers be imputed either to the

corporation or to the decision maker. Id.

Here, the district court properly granted summary

judgment on Melvin’s retaliation claim. Stephens, the

decision maker, provided unrefuted testimony that he knew

nothing about Melvin’s complaints of age discrimination

until after this lawsuit was filed. In addition, English and

Brown, the human-resources officials to whom Melvin

complained about Stephens, testified that they did not

tell Stephens about Melvin’s complaints. While Melvin

maintains that a jury could infer Stephens’s knowledge of

Melvin’s complaints of age discrimination from the timing

of Stephens’s disciplinary actions, we cannot, in light of

26a

Appendix A

Stephens’s unrefuted testimony, submit the issue to the

jury based on temporal proximity alone. See id. Nor can

English’s or Brown’s knowledge be imputed either to

Stephens or FedEx. See id. Accordingly, Melvin has not

presented sufficient evidence of a causal connection to

withstand summary judgment.

VI.

In sum, we affirm the entry of summary judgment in

favor of FedEx on Melvin’s claims of age discrimination

and retaliation.

AFFIRMED.

27a

B THE UNITED

APPENDIX B —Appendix

ORDER OF

STATES DISTRICT COURT FOR THE NORTHERN

DISTRICT OF GEORGIA, ATLANTA DIVISION,

DATED MAY 1, 2019

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT

OF GEORGIA, ATLANTA DIVISION

RODDIE MELVIN,

Plaintiff,

vs.

FEDERAL EXPRESS CORPORATION,

Defendant.

CIVIL ACTION NO.

1:17-CV-0789-CC

ORDER

This is an employment discrimination case in which

Plaintiff Roddie Melvin (“Melvin” or “Plaintiff”) alleges

claims of race discrimination and retaliation in violation

of 42 U.S.C. § 1981 and age discrimination and retaliation

in violation of the Age Discrimination in Employment Act

of 1967, 29 U.S.C. § 621 et seq. (“ADEA”). This matter is

before the Court on the Final Report and Recommendation

(the “R&R”) [Doc. No. 95] issued by Magistrate Judge J.

Clay Fuller on January 28, 2019. Magistrate Judge Fuller

recommends that the Court grant Defendant Federal

28a

Appendix B

Express Corporation’s Motion for Summary Judgment

(the “Motion for Summary Judgment”) [Doc. No. 57] and

deny as moot Defendant’s Motion to Exclude Testimony

of Lorene F. Schaefer, Esq. (the “Motion to Exclude”)

[Doc. No. 90].

After receiving an extension of time, Plaintiff filed

Plaintiff’s Objections to the Magistrate Judge’s Report &

Recommendation [Doc. No. 99] on March 1, 2019. Plaintiff

objects to the recommendation that summary judgment

be granted as to the age discrimination and retaliation

claims under the ADEA but does not specifically object

to the recommendation that summary judgment be

granted as to the race discrimination and retaliation

claims under Section 1981. (R&R at 6.) Defendant Federal

Express Corporation (“Defendant” or “FedEx”) has

filed a Response to Plaintiff’s Objections to Report and

Recommendation [Doc. No. 100].

For the reasons set forth below, the Court adopts the

R&R, with the modifications set forth herein. Defendant’s

Motion for Summary Judgment is due to be granted, and

the Motion to Exclude is due to be denied as moot.

STANDARD OF REVIEW

After reviewing a magistrate judge’s findings and

recommendations submitted pursuant to 28 U.S.C. § 636(b)

(1)(B), a district judge may accept, reject, or modify the

findings or recommendations. 28 U.S.C. § 636(b)(1); see

also Fed. R. Civ. P. 72(b)(3). A party challenging a report

and recommendation must “file . . . written objections

29a

Appendix B

which shall specifically identify the portions of the

proposed findings and recommendation to which objection

is made and the specific basis for objection.” Macort v.

Prem, Inc., 208 F. App’x 781, 783 (11th Cir. 2006) (citation

and internal quotation marks omitted); see also Fed. R.

Civ. P. 72(b)(2). A district judge “shall make a de novo

determination of those portions of the report or specified

proposed findings or recommendations to which objection

is made.” Jeffrey S. v. State Bd. of Educ. of Ga., 896 F.2d

507, 512 (11th Cir. 1990) (citation omitted). The district

judge must “give fresh consideration to those issues to

which specific objection has been made by a party.” Id.

“Frivolous, conclusive, or general objections need not be

considered by the district court.” Marsden v. Moore, 847

F.2d 1536, 1548 (11th Cir. 1988) (citation omitted). Those

portions of a report and recommendation to which an

objection has not been made are reviewed for plain error.

See United States v. Slay, 714 F.2d 1093, 1095 (11th Cir.

1983); see also Fed. R. Civ. P. 72(a).

II. DISCUSSION

Plaintiff, who was a FedEx employee for 32 years

and was terminated after receiving three disciplinary

letters within a twelve-month period, objects to the

R&R on the specific grounds that the Magistrate Judge:

(1) failed to consider Plaintiff ’s (the non-movant’s)

evidence – including evidence that the supervisor who

disciplined and terminated him, Joseph Stephens, was

aware of Plaintiff’s protected complaints – and to make

all justifiable inferences in the non-movant’s favor; (2)

weighed evidence and made credibility determinations –

30a

Appendix B

tasks that are reserved for the jury and not the Court; (3)

misunderstood or mischaracterized Plaintiff’s arguments,

thereby failing to address them; (4) erred in holding that a

party’s own statements cannot defeat summary judgment

if considered “self-serving”; (5) erred in incorrectly stating

that Plaintiff’s burden at summary judgment is not met

under the traditional McDonnell Douglas framework if his

evidence creates a genuine issue that the prima facie case

is met and that Defendant’s justification for the adverse

action is false; (6) erred in failing to address Defendant’s

failure to respond to Plaintiff’s Statement of Additional

Facts in violation of this Court’s Local Rules, which

requires treatment of Plaintiff’s facts as conceded for

the purpose of summary judgment; (7) erred in rejecting

relevant circumstantial evidence of age discrimination on

the grounds that remarks of decisionmaker were “stray

remarks”; (8) erred in failing to consider the expert report

of Lorene F. Schaefer, Esq. and how it sheds light on the

way Defendant enabled discrimination and retaliation;

and (9) erred in excluding so-called “me too” evidence in

the form of prior accusations of discrimination against

Stephens by FedEx employees.

Consideration of Plaintiff’s Evidence

In connection with Plaintiff’s first objection, Plaintiff

argues that the Magistrate Judge failed to consider: (1)

evidence of Plaintiff’s successful, decades-long career

with FedEx before Stephens became his supervisor; (2)

evidence from which a reasonable jury could conclude

Stephens was motivated by retaliation to discipline

and terminate Plaintiff; and (3) the evidence of pretext

31a

Appendix B

related to Plaintiff’s parking inside the security fence,

Plaintiff’s use of the TD Delay Code, and the demotion of

a subordinate manager, Ken Baxter. The Court rejects

Plaintiff’s arguments.

Plaintiff’s Career with FedEx

As an initial matter, the Magistrate Judge did

consider the history of Plaintiff’s career with FedEx

before Stephens became his supervisor, including both

Plaintiff’s career highlights and Plaintiff’s occasional

performance issues. (See R&R at 2-5.) While Plaintiff’s

job was not in jeopardy at the time Stephens became his

manager in April 2016, Plaintiff had received a written

Performance Reminder from his prior supervisor, VP

Ricky Brock, on August 12, 2015. (Doc. No. 90-13 at 2-3.)

After the issuance of the Performance Reminder, Plaintiff

showed some improvement but had not “conquered the

problem when [Brock] left” and “was still struggling”

with respect to some of the issues identified. (Deposition

of Troy Ricky Brock (“Brock Dep”) [Doc. No. 63] at

52:8-53:7.) Thus, Plaintiff is correct in pointing out that

he had only two disciplinary letters over the 32 years he

worked for FedEx before Stephens became his manager

and that he was not on a path to termination, but it also

is true that Plaintiff already was having performance

issues at the time Stephens became his manager. This is

not evidence that the Magistrate Judge was required to

disregard. Thus, the Court believes that the R&R includes

an accurate description of Plaintiff’s career with FedEx,

and the Magistrate Judge properly considered the history

of Plaintiff’s career in accordance with the summary

judgment standard.

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Appendix B

Retaliatory Motivation of Stephens to

Discipline and Terminate Plaintiff

Plaintiff next argues that a reasonable jury would

be entitled to conclude that Stephens was motivated by

retaliation because of Plaintiff’s protected complaints

against him. Here, there is no dispute that Plaintiff

verbally complained to Human Resources about the letters

issued by Stephens being discriminatory and retaliatory

and that Plaintiff sent an email between the time of his

suspension and termination making the same complaints.

Further, the evidence indicates that these verbal and email

complaints of retaliatory and discriminatory conduct were

sufficient to trigger an investigation, according to FedEx’s

own policies. Plaintiff’s decision not to enter FedEx’s

Guaranteed Fair Treatment Procedure/EEO Complaint

process is not evidence that should be construed to suggest

that Stephens was not motivated by retaliation, especially

since Plaintiff did complain that Stephens’s conduct was

retaliatory. However, the missing link with respect to

Plaintiff’s retaliation claim is Plaintiff’s inability to point

to evidence that Stephens was aware of his complaints.

“In order to satisfy the ‘causal link’ prong of a prima

facie retaliation case, a plaintiff must, at a minimum,

generally establish that the defendant was actually aware

of the protected expression at the time the defendant took

the adverse employment action.” Raney v. Vinson Guard

Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997) (citation

omitted). While “awareness of protected expression

may be established based on circumstantial evidence,”

the Eleventh Circuit “require[s] plaintiffs to show a

33a

Appendix B

defendant’s awareness with more evidence than mere

curious timing coupled with speculative theories.” Id.

(citation omitted). The Court has reviewed and considered

the evidence upon which Plaintiff relies to argue that a

reasonable jury could find that Stephens was aware of his

complaints against him, but the Court finds that Plaintiff’s

evidence and arguments present nothing more than

“curious timing coupled with speculative theories.” Id. The

Court finds no error in the Magistrate Judge’s analysis

of this issue, and the Court agrees that “the record does

not indicate that Stephens knew about any of Plaintiff’s

complaints such that his decision to discipline or terminate

Plaintiff was based on that knowledge.” (R&R at 45.)

Pretext

Plaintiff next asserts that the Magistrate Judge

ignored evidence he presented to establish that several of

the reasons articulated by Stephens as forming the basis

for Plaintiff’s final disciplinary letter and termination were

actually “falsehoods” and a pretext for discrimination

and retaliation. Plaintiff specifically complains about

the analysis of his parking inside the security fence, his

use the of the TD Delay Code, and the demotion of Ken

Baxter. These issues also are the subject of Plaintiff’s fifth

objection to the R&R (regarding the analysis of whether

the justification for the adverse action was false), and the

Court addresses these issues in detail in Section II.E.

of this Order. As to this objection specifically, however,

the Court disagrees that the Magistrate Judge ignored

Plaintiff’s evidence.

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Appendix B

The Mag istrate Judge meticulously analyzed

Plaintiff’s claims and the evidence presented by Plaintiff

in support of those claims, and he applied the appropriate

law to the allegations and evidence. Plaintiff generally

contends that the violations cited by Stephens were

immaterial and/or baseless. However, as the Court will

explain below, the violations were not baseless. Further,

the materiality of the violations or mistakes, as Plaintiff

characterizes them, is really a matter of business

judgment that is inappropriate for the Court to review. See

Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th

Cir. 1991). The Court rejects Plaintiff’s objection that the

Magistrate Judge ignored Plaintiff’s evidence of pretext.

B. Weighing Evidence and Making Credibility

Determinations

The focus of Plaintiff’s next objection is on whether the

Magistrate Judge improperly weighed evidence and made

credibility determinations. In this regard, Plaintiff argues

the Magistrate Judge erred in determining that: (1) no

jury could find Stephens’s ageist remarks to be evidence of

age discrimination because Plaintiff’s co-workers, and his

replacement, were over 50 years old; (2) no reasonable jury

could find the disciplinary letters were discriminatory or

retaliatory because Plaintiff did not formally contest them

in writing; (3) no reasonable jury could find that Stephens

was aware of Plaintiff’s complaints against him; (4) no

reasonable jury would believe Plaintiff’s explanation for

his continued use of the TD Delay Code, which was that

Stephens had instructed Plaintiff and other Managing

Directors to reduce usage of the code, not to eliminate

35a

Appendix B

usage all together and immediately; and (5) Plaintiff

demoted a subordinate manager, Ken Baxter, against

Stephens’s instructions.

Ageist Remarks

Plaintiff points to one occasion when Stephens made

ageist remarks. In the regard, Plaintiff points to evidence

that Stephens, during his very first conversation with

Plaintiff in May 2016, asked Plaintiff his age, inquired

about whether he was going to retire, and encouraged

him to let the “young guys” take over. Plaintiff received a

warning letter the following month regarding various past

due or delinquent managerial tasks and Plaintiff’s false

representation that he had counseled his subordinates

regarding the delinquent tasks. However, Plaintiff was

not terminated until over five months after Stephens

made the stray remarks. The Magistrate Judge found

that the remarks were too remote in time from Plaintiff’s

termination to be probative evidence of discriminatory

animus.

The Magistrate Judge likewise noted that other

managing directors in Plaintiff’s region were over 50

years old and that Plaintiff’s replacement also was over

50 years old. By noting these facts, Plaintiff asserts that

the Magistrate Judge impermissibly made credibility

determinations and weighed the evidence, but Eleventh

Circuit authority instructs that allegedly discriminatory

remarks are to be viewed “in conjunction with entire

record” to determine whether the remarks constitute

circumstantial evidence of a discriminatory attitude. Ross

36a

Appendix B

v. Rhodes Furniture, Inc., 146 F.3d 1286, 1292 (11th Cir.

1998). The Magistrate Judge’s consideration of the ages

of Plaintiff’s coworkers and replacements, among other

evidence, was not improper.

Plaintiff ’s Decision Not to Contest

Disciplinary Letters

Plaintiff contends that the Mag istrate Judge

improperly weighed the evidence when he determined

that no reasonable jury could find Stephens’s disciplinary

letters to be discriminatory or retaliatory due to

Plaintiff’s failure to contest the disciplinary letters as such

through FedEx’s Guaranteed Fair Treatment Procedure/

EEO Complaint process. While the Magistrate Judge

acknowledged that Plaintiff’s failure to take advantage of

this process was not dispositive of Plaintiff’s claims, the

Court agrees with Plaintiff that this is an instance of the

Magistrate Judge not construing the evidence in a light

most favorable to Plaintiff, as the non-moving party. It is

undisputed that Plaintiff complained that Stephens issued

the letters with discriminatory and retaliatory intent. The

Court is aware of no legal authority supporting a finding

that no reasonable juror could infer the letters were issued

with discriminatory or retaliatory intent simply because

Plaintiff did not make the complaints in writing or did not

go through the Guaranteed Fair Treatment Procedure/

EEO Complaint process. Still, Defendant is entitled to

summary judgment on Plaintiff’s claims because evidence

of pretext is lacking and there likewise is insufficient

circumstantial evidence of discrimination to constitute a

convincing mosaic.

37a

Appendix B

Stephens’s Awareness of Plaintiff ’s

Complaints

Plaintiff argues that the Magistrate Judge improperly

weighed evidence and made credibility determinations

when he found that no reasonable jury could find that

Stephens was aware of Plaintiff’s complaints against him.

The Court has reviewed the evidence relevant to this

issue and the caselaw relied upon by Plaintiff in support

of his arguments. As the Court indicated in Section

II.A.2. above, the Court finds no error in the Magistrate

Judge’s analysis and agrees that there is no evidence

that Stephens was aware that Plaintiff had complained

of discrimination or retaliation.

TD Delay Code

Plaintiff next objects to the Magistrate Judge’s

finding that no reasonable jury would believe Plaintiff’s

explanation for his continued use of the TD Delay Code,

which was that Stephens had instructed Plaintiff and

other Managing Directors to reduce usage of the code,

not to eliminate usage all together and immediately.

As the Court explains below in Section II.E.4., even if

a jury accepted or believed Plaintiff’s explanation that

he was instructed only to reduce the use of the code,

the evidence indicates that Plaintiff did not do that.

In the termination/warning letter, Stephens stated

that Plaintiff’s organization “actually increase[ed] the

frequency of use” of the TD Delay Code. (Doc. No. 61-7

at 3.) Therefore, regardless of whether the jury believes

Stephens’s characterization of his directive or Plaintiff’s

38a

Appendix B

characterization of that directive, Plaintiff did not comply

with either directive. Stephens articulated his belief that

Plaintiff’s organization had increased its use of the TD

Delay Code, and he relied on that belief in finding that

Plaintiff was in violation of the Acceptable Conduct Policy.

Plaintiff’s objection to the R&R is inconsequential.

Demotion of Ken Baxter

Plaintiff next takes issue with the Magistrate Judge’s

finding that Plaintiff demoted Ken Baxter and the

Magistrate Judge’s reliance on an email sent to Stephens

by Human Resources advisor George Sims in support of

that finding. Plaintiff denies the contents of the email,

which stated, in pertinent part, the following:

As we discussed, during a recent conversation

with Rod Melvin the topic regarding the status

of Ken Baxter surfaced. At that time, Rod

stated that he was told by you explicitly not to

allow Ken to be released from his assignment

as CAER manager or be placed on an [sic]

LOA to seek another position in Indianapolis.

Rod then stated that although he received this

directive from you, he decided to demote Ken

to a Material Handler position so as to facilitate

the move back to INDY and thereby allow Fred

Laskovics to backfill Ken’s position before peak

season.

(Doc. No. 61-21 at 2.) The Magistrate Judge relied on the

email to set forth the directive that Plaintiff had been

39a

Appendix B

given by Stephens, but the Magistrate Judge also relied

on an email that Stephens had sent Plaintiff, which was

evidence of the directive Stephens had given Plaintiff.

(R&R at 30.) The Magistrate Judge did not rely on the

email from George Sims to support the proposition

that Plaintiff admitted to going against the directive

from Stephens. Rather, the Magistrate Judge relied on

Plaintiff’s deposition testimony to support that finding.

Regardless of whether the Magistrate Judge erred in

relying on the email from Sims or Plaintiff’s deposition

testimony to support the proposition that Stephens gave

Plaintiff a directive regarding Baxter that Plaintiff

violated, there is ample, undisputed evidence that Stephens

instructed Plaintiff not to demote Baxter. Further, as the

Court explains below in Section II.E.1. of this Order, the

evidence is undisputed that Stephens believed Plaintiff

had violated that directive. Plaintiff points to evidence

that he did not actually demote Baxter and he attempts

to argue that he explained this to Stephens, prior to

the termination decision, but that argument is without

evidentiary support. There is no evidence to refute that

Stephens had an honest, good-faith belief that Plaintiff had

violated his directive not to demote Baxter. The email from

Sims need not be considered to arrive at that conclusion,

and that conclusion is dispositive of the issue of pretext

concerning the demotion of Baxter.

Failure to Address Plaintiff’s Misunderstood

Arguments

Plaintiff’s next objection is based on his assertion

t h at t he R&R r ef le c t s a m i su nder st a nd i ng or

40a

Appendix B

mischaracterization of his arguments and does not

address those arguments. The Court has considered

Plaintiff’s arguments, as clarified in his Objections, but

those arguments and the evidence on which they are

based do not defeat Defendant’s entitlement to summary

judgment.

Circumstantial Evidence of Stephens’s

Awareness of Complaints

Plaintiff first argues that the Magistrate Judge

mischaracterized his arguments regarding Stephens’s

awareness of Plaintiff’s complaints of discrimination and

retaliation, which would support a causal link between the

complaints and Plaintiff’s termination. The Magistrate

Judge found a lack of evidence indicating that Stephens

knew about any of Plaintiff’s complaints. While the

Magistrate Judge analyzed the temporal proximity

between his complaints and his termination, Plaintiff

contends that Magistrate Judge also should have analyzed

the temporal proximity between his complaints and the

disciplinary letters to conclude that Stephens was aware

of the complaints Plaintiff made against him. Plaintiff

further argues that additional circumstantial evidence

exists in the form of Brown’s knowledge of Human

Resources policy requiring action upon a complaint of

discrimination and Brown’s representations to Melvin

that he was going to make some calls and follow up on

Plaintiff’s complaints.

Assuming, arguendo, that this evidence is sufficient

to create a genuine issue of material fact as to whether

41a

Appendix B

Stephens was aware of Plaintiff’s complaints, the Court

still agrees with the Magistrate Judge that the evidence

fails to support an inference that Plaintiff’s complaints

caused him to receive the adverse action of the written

discipline. As the Court will explain more fully below, the

record demonstrates that Plaintiff was disciplined based

on his own discrete conduct, which breaks the casual link

that would support the retaliation claims. See Henderson

v. FedEx Express, 442 F. App’x 502, 506 (11th Cir. 2011)

(unpublished decision) (“Intervening acts of misconduct

can break any causal link between the protected conduct

and the adverse employment action[.]”). Moreover, even if

Plaintiff could establish a prima facie case of retaliation,

he fails to point to evidence demonstrating a genuine

issue of material fact regarding whether Defendant’s

legitimate, nonretaliatory reasons for terminating him

are pretextual.

Pretext

Plaintiff next argues that the Magistrate Judge

misunderstood or mischaracterized his arguments

regarding whether Defendant’s justification for his

termination is pretext for discrimination and retaliation.

In this regard, Plaintiff maintains that the R&R

mischaracterizes his pretext arg uments as mere

arguments that his termination was not fair, that Stephens

should not have disciplined him, and that the discipline

was not warranted. Plaintiff states that he is not merely

disagreeing with the discipline or arguing about the

unfairness of the discipline. Instead, Plaintiff asserts

that Stephens based the termination decision on “known

falsehoods.” (Doc. No. 99 at 42-43 n.11.)

42a

Appendix B

This Court has conducted a detailed, de novo review

of whether the termination was based on “known

falsehoods” or whether there are any genuine issues

of material fact concerning the same. As explained in

detail in Section II.E. of this Order, the answer to both

inquiries is no. Accordingly, any error by the Magistrate

Judge with respect to the characterization of Plaintiff’s

arguments is not grounds to reject the Magistrate Judge’s

recommendations.

Self-Serving Statements

Plaintiff complains that the Magistrate Judge

incorrectly held that a party’s self-serving statements

cannot defeat summary judgment. Plaintiff is correct that

sworn, self-serving statements by a party should not be

disregarded by courts at the summary judgment stage and

that such statements may provide a basis to properly deny

summary judgment. Strickland v. Norfolk S. Ry. Co., 692

F.3d 1151, 1160 (11th Cir. 2012); Feliciano v. City of Miami

Beach, 707 F.3d 1244, 1253 (11th Cir. 2013). To the extent

that the Magistrate Judge’s mention of “[u]nsupported

self-serving statements” encompassed sworn testimony

of a party, Plaintiff raises a valid issue with respect to

this statement of law included in the R&R’s presentation

of the “Summary Judgment Standard.” Notably, however,

Plaintiff does not point to any of his testimony that the

Magistrate Judge rejected as self-serving and refused

to consider. Therefore, this objection does not provide a

basis for the Court to reject the recommendations within

the R&R.

43a

Appendix B

E. Plaintiff’s Satisfaction of His Burden at

Summary Judgment

Plaintiff next objects to the Magistrate Judge’s finding

that he did not meet his burden under the McDonnell

Douglas framework to withstand summary judgment.

Plaintiff submits that the evidence he has presented

creates a genuine issue that the prima facie case is met

and that Defendant’s justification for the adverse action

is false. The Magistrate Judge agreed that Plaintiff met a

prima facie case. (Doc. No. 95 at 18-19.) Thus, the Court’s

focus is on whether Plaintiff’s evidence creates a genuine

issue that Defendant’s justification for the adverse action

is false.

To show pretext, a plaintiff must show “that the

reasons given by the employer were not the real reasons

for the adverse employ ment decision.” Chapman

v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000)

(citation omitted). The court’s role in conducting the

pretext analysis is to “evaluate whether the plaintiff

has demonstrated such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action

that a reasonable factfinder could find them unworthy of

credence.” Combs v. Plantation Patterns, Meadowcraft,

Inc., 106 F.3d 1519, 1538 (11th Cir. 1997) (internal quotation

omitted). “A plaintiff is not allowed to recast an employer’s

proffered nondiscriminatory reasons or substitute his

business judgment for that of the employer.” Chapman,

229 F.3d at 1030. The Eleventh Circuit has “repeatedly

and emphatically held that a defendant may terminate an

44a

Appendix B

employee for a good or bad reason without violating federal

law.” See Damon v. Fleming Supermarkets of Fla, Inc.,

196 F.3d 1354, 1361 (11th Cir. 1999) (citation omitted). The

Court’s role is not to judge “whether employment decisions

are prudent or fair.” Id.

Here, Defendant based its termination of Plaintiff

upon a warning letter and two disciplinary letters that

were issued to Plaintiff by Stephens within a 12-month

period and its policy of terminating employees receiving

three such letters within a 12-month period. Plaintiff

maintains that if just one letter is baseless and Stephens

knew the letter to be baseless, then a genuine issue

regarding pretext is present. Plaintiff does not concede

the legitimacy or accuracy of any of the letters, but

Plaintiff’s specific objection is to the Magistrate Judge’s

determination that there were no genuine, disputed facts

concerning the disciplinary and performance issues

raised in the third and final letter that Plaintiff received

on November 3, 2016. Plaintiff asserts that a reasonable

jury could find that this letter is full of falsehoods and is

thus baseless.

Plaintiff’s final letter was for insubordination and

leadership failure and was based on the following,

according to Defendant: (1) Plaintiff had ignored Stephens’s

instructions regarding the demotion of Ken Baxter; (2)

Plaintiff continued to park in a secured lot, despite being

told not to by former VP Brock and Corporate Security, on

nine occasions in September and October 2016; (3) Plaintiff

failed to report a mishandled delivery unit in his region,

which caused 122 service failures; and (4) Plaintiff failed

45a

Appendix B

to discontinue use of the Time Discrepancy (“TD”) delay

code, notwithstanding instructions that had been given

to him to do so on October 11 and 18, 2016.

Demotion of Ken Baxter

Plaintiff contends that he did not demote Ken Baxter,

a manager in Plaintiff’s chain of command, as Stephens

stated Plaintiff had done in the warning/termination

letter. Plaintiff points to evidence in the record that

Baxter applied for an hourly position in Columbia, South

Carolina, and received it because no one else applied.

After Baxter received that position, he then requested

a Leave of Absence in writing, which Plaintiff granted.

Thus, Plaintiff maintains that he did nothing to remove

Baxter from the position he held, and Plaintiff further

contends that Stephens could not have held an honest,

good faith belief that Plaintiff was insubordinate because

he told Stephens what actually happened.

Contrary to what Plaintiff argues, there is no evidence

that Stephens was aware Baxter independently applied for

the hourly position in Columbia, South Carolina. In fact,

Plaintiff avers in the declaration that he submitted with

his summary judgment response that “[his] understanding

from Fred’s testimony is that Ken applied for an open

Handler position in Columbia, SC and got the job

because – even though he was in Group 2 – nobody else

applied for the position.” (Declaration of Roddie Melvin

“Melvin Decl.” [Doc. No. 83-17] ¶ 74) (emphasis added).

Plaintiff avers that he spoke with Stephens, explained

that he had not disobeyed any of his instructions, and

46a

Appendix B

explained what had actually happened. (Id. ¶ 82.) However,

given Plaintiff’s averment that a colleague’s testimony

informed his understanding of how Baxter obtained the

hourly position in South Carolina, this is not information

that Plaintiff could have shared with Stephens prior to

Plaintiff’s termination.

Unquestionably, Stephens was under the impression

on September 14, 2016, that Plaintiff demoted Baxter and

placed him on a leave of absence, as Stephens indicated as

much in the email he sent Plaintiff. (Doc. No. 61-7 at 13.)

Plaintiff did not state in his email response to Stephens

that he did not demote Baxter; rather, he simply stated

the following: “Joe this guy has cost me more than you

know. He put an expense report in a drawer and now

this. We were simply trying to HELP him get back to

Indy. He indicated he was sick and needed to get back. I

thought I was doing the right thing.” (Doc. No. 61-7 at 14.)

Plaintiff’s deposition and declaration testimony indicate

that Plaintiff subsequently spoke to Stephens about what

transpired and that Stephens understood what Plaintiff

had done, but Plaintiff has not pointed to any evidence

that Stephens knew or should have known that Plaintiff

had not demoted Baxter.

Having closely considered Plaintiff’s arguments and

the evidence upon which he relies, the Court finds that

Plaintiff’s objection is without merit. Even if Stephens’s

reliance on the demotion of Baxter as a basis for Plaintiff’s

termination was factually in error, Plaintiff has not pointed

to any evidence tending to show that Stephens knew this

reason to be a falsehood at the time that he terminated

47a

Appendix B

Plaintiff. This is problematic with respect to Plaintiff’s

attempt to show a genuine issue concerning pretext, as

Eleventh Circuit authority indicates the following:

Evidence showing a false factual predicate

underlying the employer’s proffered reason

does not unequivocally prove that the employer

did not rely on the reason in making the

employment decision. Instead, it may merely

indicate that the employer, acting in good

faith, made the disputed employment decision

on the basis of erroneous information. It is

obviously not a violation of federal employment

discrimination laws for an employer to err in

assessing the performance of an employee.

Thus, establishing pretext is not merely

demonstrating that the employer made a

mistake, but that the employer did not give an

honest account of its behavior.

Walker v. NationsBank of Fla. N.A., 53 F.3d 1548, 1564

(11th Cir. 1995) (internal citations omitted). Plaintiff has

not presented evidence from which a reasonable jury could

infer that Stephens did not genuinely believe that Plaintiff

had not followed his directive concerning Baxter.

Parking Inside Security Fence

Plaintiff claims that he followed all appropriate

parking rules and only parked inside the security fence

with permission from Security. Plaintiff points to evidence

that Stephens had previously seen Security allow him to

48a

Appendix B

park inside the security fence, and Plaintiff also testified

that he told Stephens, prior to the issuance of the warning/

termination letter, that Security had authorized him to

park inside the security fence.

The evidence indicates that Plaintiff had reached an

understanding with Security Director Alex Kerr back in

2012 that Plaintiff would confer with Kerr’s subordinates,

Rich Landsiedel and Lois Burnett, whenever he was

conducting employee meetings and other special events

and needed permission to park inside the security fence

to be able to transport items quickly to and from the

meetings. However, in 2015, Ricky Brock, who was a VP

and Plaintiff’s supervisor at that time, sent Plaintiff a

Performance Reminder that advised Plaintiff of various

performance deficiencies, including that Plaintiff had gone

to Security to get permission to park inside the security

fence, which Brock said was directly in violation of his

instruction regarding ramp security. Brock instructed

Plaintiff in that Performance Reminder that any “[s]pecial

request through any department that benefit[ted] [him]

personally [was] not [to] be requested by [him].” (Doc.

No. 61-7 at 18.)

St ephen s sp ec i f ic a l ly referenced t he above

Performance Reminder in the warning/termination

letter issued on November 3, 2016, thus making the letter

relevant to the termination decision and to the Court’s

pretext analysis. (Doc. No. 61-7 at 2.) Additionally, as

the Magistrate Judge noted, the managing director

of Security, Kristina Burchfield, sent Joe Stephens an

email in September of 2016 indicating that Plaintiff was

49a

Appendix B

observed parking his personal vehicle inside the perimeter

fence. When asked about why he was parking inside the

perimeter fence, Plaintiff stated that his knee was bad.

Stephens was advised in that email correspondence that

Plaintiff had stated he would discontinue parking inside

the perimeter fence. (Doc. No. 61-7 at 17.) Yet, as indicated

in the warning/termination letter issued on November

3, 2016, Plaintiff parked his personal vehicle in the

unapproved location nine additional times in less than a

two-month period after stating that he would discontinue

parking inside the perimeter fence.

The information available to Stephens indicated that

Plaintiff was no longer supposed to be parking inside the

security fence, irrespective of Plaintiff’s discussions with

Security Managers Burnett and Landsiedel, but that he

had continued to do so. This basis for the disciplinary action

was not a “falsehood” or a pretext for discrimination, as

Plaintiff contends.

Reporting of Mishandled Delivery and

Accompanying Service Failures

With respect to the reporting of the mishandled

delivery and the 122 accompanying service failures,

Plaintiff states that he could not report the incident to

Stephens because the incident had not been properly

reported to him. According to Plaintiff, he thought that

his Operations Administrator had reported the exception

and did not learn that she had not done so until after

someone else had already reported the exception to

Stephens. Plaintiff points out that Stephens testified

50a

Appendix B

that FedEx does not fire somebody every time there is a

service failure, and Plaintiff maintains that it is “highly

suspicious” that Defendant used this “one incident” as

a basis for termination. (Doc. No. 99 at 49) (emphasis in

original). The evidence relied on by Plaintiff does not

create a genuine issue regarding pretext.

As an initial manner, Defendant did not base the

termination decision on this one incident. Stephens cited

four different reasons in the warning/termination letter

for the disciplinary action. Additionally, while Plaintiff

essentially blames his Operations Administrator for

the failure to report the incident to Stephens and states

that he explained to Stephens that his Operations

Administrator was responsible for that failure to report,

Stephens’s apparent decision to hold Plaintiff ultimately

responsible for the failure to report the exception that

occurred within his region is a business decision and is

not evidence of pretext. It is not this Court’s role “to act

as a super personnel department that second-guesses

employers’ business judgments.” Wilson v. B/E Aerospace,

Inc., 376 F.3d 1079, 1092 (11th Cir. 2004) (internal marks

and citation omitted). Whether Defendant acted unfairly

or unwisely to hold Plaintiff ultimately responsible for

the failure and to include this failure among the reasons

to support the termination decision is not for this Court

to decide.

TD Delay Code

The final issue in the warning/termination letter

concerns the TD Delay Code, which is a code that is

entered into FedEx’s system to classify certain incidents

51a

Appendix B

when a plane is delayed in getting out. Plaintiff argues

that Stephens never instructed him to halt the usage of the

code immediately. Rather, the instruction was to reduce

it, and Stephens, according to Plaintiff, understood this

to be Plaintiff’s understanding.

In the warning/termination letter, Stephens indicated

that he had told Plaintiff to discontinue the application of

the TD Delay Code multiple times. Regardless of whether

there was a miscommunication about discontinuing the use

of the code all together or reducing the use of the code,

Stephens explained in the warning/termination letter

that Plaintiff’s organization had actually increased the

frequency of use of the TD Delay Code. (Doc. No. 61-7 at 3.)

As such, even if the instruction was only to reduce the use

of the TD Delay Code or Plaintiff reasonably understood

that to be the instruction, Plaintiff did not comply with

that instruction. Plaintiff points to no evidence creating

a genuine issue of material fact concerning whether his

organization increased the use of the TD Delay Code, as

Stephens stated in the warning/termination letter. Thus,

Plaintiff’s argument that Stephens could not have had a

good-faith belief that Plaintiff was being insubordinate is

not supported by the evidence, even when that evidence

is construed, as it must be, in Plaintiff’s favor. There is

no genuine issue to go before a jury relating to the TD

Delay Code.

Plaintiff’s Statement of Additional Facts

Plaintiff contends that the Mag istrate Judge

erred in failing to address Defendant’s inadequate

52a

Appendix B

response to Plaintiff’s Statement of Additional Facts.

Specifically, Plaintiff states that of Plaintiff ’s 218

additional facts, Defendant responded only to numbers

1-9, 11-20, 42, and 142-47. Plaintiff argues that Defendant’s

failure to respond to the remaining facts requires that

those facts be treated as conceded for the purpose of

summary judgment. Plaintiff further maintains that even

Defendant’s objections to the limited number of facts to

which Defendant responded are deficient. For this reason,

Plaintiff urges that all of Plaintiff’s additional facts should

be conceded for consideration at summary judgment.

In contrast to Local Rule 56.1.B(2)a(2), which

specifically states that the Court will deem the movant’s

undisputed facts as admitted unless the respondent

addresses each fact in the manner set forth in that rule,

Local Rule 56.1B(3) does not require that the Court deem

any additional facts as admitted if there is no response or

an inadequate response to the additional facts. See U.S. for

Use and Ben. of WFI Georgia, Inc. v. Gray Ins. Co., 701 F.

Supp. 2d 1320, 1333 n. 14 (N.D. Ga. 2010) (noting that Local

Rule 56.1B(3) “does not require the court deem anything

admitted”). The Magistrate Judge could have considered

the additional facts at issue unopposed or admitted, and

this is often what is done. See, e.g., Gaylor v. Greenbriar

of Dahlonega Shopping Center, Inc., 975 F. Supp. 2d

1374, 1391 n.12 (N.D. Ga. 2013); E.E.O.C. v. Atlanta

Gastroenterology Assocs., LLC, No. Civ.A.1:05CV2504TWT, 2007 WL 602212, at *3 n.2 (N.D. Ga. Feb. 16,

2007). However, the Magistrate Judge apparently opted

in favor of deciding the case on the merits, which also

is a permissible exercise of the Court’s discretion. See

53a

Appendix B

Flores v. Ultimate Appearance Law Service, LLC, CIVIL

ACTION NO. 1:14-CV-485-RWS, 2016 WL 7437124, at *1

n.1 (N.D. Ga. Sept. 15, 2016) (“Plaintiff filed a Statement of

Additional Facts in compliance with Local Rule 56.1B(3),

but Defendants did not respond to the Additional Facts.

The Court could deem these Additional Facts admitted.

However, in an effort to decide this case on the merits,

the Court has not done so.”). For this reason, the Court

overrules this objection.

G. Rejection of Discriminatory Remarks as

“Stray Remarks”

Plaintiff objects to the characterization of Stephens’s

questions and comments to him about his age as “stray

remarks.” Plaintiff argues that Stephens’s discriminatory

animus, as indicated by the remarks, prompted the June

warning letter and the subsequent disciplinary letters

that Plaintiff received and on which Stephens eventually

based his decision to terminate Plaintiff’s employment.

While acknowledging that discriminatory remarks

made by a decisionmaker can be evidence of pretext, the

Magistrate Judge reasoned that the remarks are not

sufficient to create an issue of fact as to whether Stephens

would not have terminated Plaintiff but for his age. First,

the evidence relied on by Plaintiff indicated that Stephens

had made age-related marks concerning Plaintiff on only

one occasion. Second, Plaintiff provided no evidence that

the remarks were linked to the termination decision.

Third, the Magistrate Judge reasoned that the remarks

were too remote in time from the date of Plaintiff’s

54a

Appendix B

termination to support Plaintiff’s claims. Fourth, the

Magistrate Judge considered that there were four other

managing directors in Plaintiff’s region over 50 years old,

who were not disciplined as frequently as was Plaintiff,

and that Plaintiff’s replacement also was over 50 years old.

Having freshly considered the evidence concerning

Stephens’s discriminatory statements in conjunction with

the entire record, the Court agrees that the statements,

albeit disturbing, are not probative, circumstantial

evidence of discriminatory intent with respect to

Plaintiff’s termination. The statements made by Stephens

were isolated remarks, and there is no evidence that the

statements were related to the decision to terminate

Plaintiff. These statements, alone, are insufficient to

establish a material fact on pretext or a convincing mosaic,

and the record does not otherwise support Plaintiff’s

discrimination claims.

H. Failure to Consider Expert Report

Plaintiff next argues that the Magistrate Judge

improperly ignored the testimony of his expert, Lorene

Schaefer, Esq. According to Plaintiff, Schaefer’s testimony

supports that FedEx inadequately investigated Plaintiff’s

complaints of discrimination and that a thorough

investigation of Plaintiff’s complaints likely would have

substantiated Plaintiff’s claim that Stephens asked him

about his age and retirement plans. Schaefer goes a step

further and also opines that if Stephens’s subsequent

actions had been scrutinized, as they likely would have

been, Plaintiff likely would not have been terminated.

55a

Appendix B

The Magistrate Judge did not ignore this evidence.

Indeed, the R&R includes a quotation of the summary

from Schaefer’s expert report. (Doc. No. 95 at 50.) In

considering Defendant’s Motion to Exclude the Expert

Testimony, the Magistrate Judge stated that he had

reviewed the report and concluded that testimony

consistent with the report, even if admissible, still does not

create an issue of fact as to any of Plaintiff’s claims. (Id.)

The Magistrate Judge reasoned that even an “investigation

of the investigation” did not yield sufficient evidence to

create an issue of material fact concerning whether the

decision to terminate Plaintiff was discriminatory. (Id. at

51.) The Court agrees.

Plaintiff was disciplined and ultimately terminated

for legitimate reasons, and Plaintiff has not persuasively

shown that those reasons were a pretext for discrimination.

Irrespective of any standards for effective workplace

investigations and whether Defendant’s response to

Plaintiff’s discrimination complaints met or failed to meet

those standards, evidence that Defendant’s investigations

were deficient does not alter Plaintiff ’s failure to

persuasively contest Defendant’s showing that Plaintiff

was terminated for legitimate, nondiscriminatory reasons.

Additionally, Plaintiff previously emphasized that his

intent in using Schaefer’s expert report at the summary

judgment stage was merely to identify the standards

for effective workplace investigations, not to prove

Defendant’s failure to meet those standards. (Doc. No.

94 at 2, 5.) Yet, in his objections, Plaintiff argues that

the Magistrate Judge failed to consider the way the

56a

Appendix B

expert report sheds light on the way Defendant enabled

discrimination and retaliation. If the purpose of the expert

report, on summary judgment, was simply to set forth

the standards, Plaintiff cannot logically argue that the

Magistrate Judge should have considered how the expert

report demonstrated that the workplace investigations

were deficient.

Plaintiff ’s objection concerning the Magistrate

Judge’s failure to consider the expert report is due to be

overruled.

Exclusion of “Me Too” Evidence

Plaintiff finally objects to the R&R on the basis that it

ignores the history of discrimination allegations against

Stephens, including accusations by five other FedEx

employees that Stephens discriminated against them.

In the context of employment discrimination cases, the

Eleventh Circuit has held that “me too” evidence may

be admissible under Federal Rule of Civil Procedure

404(b) to prove the employer’s motive, intent, or plan

to discriminate against a plaintiff. Goldsmith v. Bagby

Elevator Co., 513 F.3d 1261, 1286 (11th Cir. 2008); Phillips

v. Smalley Maint. Servs., Inc., 711 F.2d 1524, 1532 (11th

Cir. 1983).

Contrary to Plaintiff’s argument, the Magistrate

Judge did not ignore this “me too” evidence or exclude

it outright. Rather, the Magistrate Judge considered the

particulars of those accusations, the investigations of those

accusations, and the outcomes of the investigations before

57a

Appendix B

concluding that the history of complaints is minimally

probative and fails to help establish a “convincing

mosaic” of circumstantial evidence creating a reasonable

inference that Stephens terminated Plaintiff based on

his age. (Doc. No. 95 at 34-36.) In addition to the reasons

articulated by the Magistrate Judge for finding that the

“me too” allegations do not create material issues of

fact, many of the “me too” allegations occurred under

very different circumstances and some of the allegations

are quite remote in time. See Davis v. Dunn Constr.

Co., Inc., 872 F. Supp. 2d 1291, 1318 (N.D. Ala. 2012)

(finding relevant to the analysis whether the other

allegations of discrimination occurred close in time to

the plaintiff’s allegations, whether the other employees

alleging discrimination had similar job positions as the

plaintiff, whether the other employees suffered adverse

employment actions for reasons similar to the defendant’s

proffered reason for demoting the plaintiff, and whether

there was a common decisionmaker). Having conducted

a de novo review of the issues and evidence concerning

the “me too” allegations, the Court agrees that those

allegations are only minimally probative and do not shed

much light upon Stephens’s alleged intent to discriminate

against Plaintiff.

III.

CONCLUSION

Having conducted a de novo review of all portions

of the R&R to which Plaintiff objects and having

reviewed the remainder of the R&R for plain error, the

Court agrees that Defendant is entitled to summary

judgment on Plaintiff’s discrimination and retaliation

58a

Appendix B

claims. Accordingly, the Court ADOPTS the R&R as the

decision of this Court. Defendant’s Motion for Summary

Judgment [Doc. No. 57] is GRANTED and Defendant’s

Motion to Exclude Testimony of Lorene F. Schaefer, Esq.

[Doc. No. 90] is DENIED as moot. Plaintiff’s claims are

DISMISSED.

SO ORDERED this 1st day of May, 2019.

s/ CLARENCE COOPER

CLARENCE COOPER

SENIOR UNITED STATES

DISTRICT JUDGE

59a

C REPORT

APPENDIXAppendix

C — FINAL

AND RECOMMENDATION OF THE

UNITED STATES DISTRICT COURT FOR

THE NORTHERN DISTRICT OF GEORGIA,

ATLANTA DIVISION, DATED JANUARY 28, 2019

CIVIL ACTION FILE NO.:

1:17-CV-00789-CC-JCF

IN THE UNITED STATES DISTRICT

COURT FOR THE NORTHERN DISTRICT

OF GEORGIA, ATLANTA DIVISION

RODDIE MELVIN,

Plaintiff,

FEDERAL EXPRESS CORPORATION,

Defendant.

FINAL REPORT AND RECOMMENDATION

This case is before the Court on Defendant’s Motion

For Summary Judgment. (Doc. 57) and its Motion To

Exclude Testimony Of Lorene F. Schaefer, Esq (Doc. 90).

For the reasons that follow, it is RECOMMENDED that

Defendant’s motion for summary judgment be GRANTED.

It is further RECOMMENDED that Defendant’s motion

to exclude testimony be DENIED as moot.

60a

Appendix C

Factual Background

The facts, for summary judgment purposes only, are

derived from Defendant’s statement of material facts (Doc.

57-2, “Def. SMF”); Plaintiff’s response to Defendant’s

statement of material facts (Doc. 83-2); Plaintiff ’s

statement of additional material facts (Doc. 83-3, “Pl.

SMF”); Defendant’s response to Plaintiff’s statement of

additional material facts (Doc. 92); and undisputed record

evidence. The undersigned notes that the parties’ factual

assertions are taken in large part from the depositions

of Plaintiff (Doc. 61, “Pl. Dep.”); Michael Pigors (Doc.

60, “Pigors Dep.”); Joseph Stephens (Doc. 70, “Stephens

Dep.”); George Sims (Doc. 62, “Sims Dep.”); Bobby Willis

(Doc. 71, “Willis Dep.”); Reginald Owens, Sr. (Doc. 66,

“Owens Dep.”); Shannon Brown (Doc. 67, “Shannon Brown

Dep.”); Carla Laszewski (Doc. 77, “Laszewski Dep.”); and

Wanda English (Doc. 84, “English Dep.”).

Plaintiff’s Employment With FedEx

Plaintiff Roddie Melvin (“Plaintiff”), an AfricanAmerican who is over 40 years old, was employed by

Defendant Federal Express Corporation (“Defendant” or

“FedEx”) from 1983 until he was terminated in November

2016. (Doc. 1 ¶¶ 8, 14; Def. SMF ¶ 4; Doc. 83-2 ¶ 4). From

February 2006 to the date of his termination, Plaintiff held

the position of managing director of one of four districts

within the Southern Region of Defendant’s Air Ground

Freight Services Division (“AGFS”). Other managing

directors in the Southern Region at the time of Plaintiff’s

termination included: Maurice Settles (“Settles”), an

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Appendix C

African-American male aged 56; Bobby Willis (“Willis”),

an African-American male aged 55; Jeff Brown (“Brown”),

an African-American male aged 55; and Anna Lewis

(“Lewis”), a white female aged 51. (Doc. 57-1 (“Def. MSJ”)

at 51; Doc. 83-2 ¶ 6). Over the course of his employment

with FedEx, Plaintiff was offered several management

promotions. (Pl. SMF ¶¶ 58-59, 61-63, 66, 68). Plaintiff

also received several management awards from 1990 to

2010. (Id. ¶¶ 60, 64, 65, 72, 74). Plaintiff was nominated for a

vice president (“VP”) position by his superior, VP Reginald

Owens, Sr. (“Owens”). (Id. ¶ 75).

Prior to April 2016, Plaintiff reported to VPs Owens

and Ricky Brock (“Brock”). (Def. SMF ¶ 7; Doc. 83-2 ¶ 7).

In April 2016, Brock retired and was replaced by Joseph

Stephens (“Stephens”), a VP in Defendant’s Memphis

hub. (Doc. Def. SMF ¶¶ 8, 9; Doc. 83-2 ¶¶ 8, 9). Prior to

assuming VP over the Southern Region, Stephens was

hired by FedEx’s president of U.S. Operations, Michael

Pigors (“Pigors”), to fill a VP position for Defendant’s

Memphis hub office. (Def. SMF ¶¶ 13-14). At one point,

Plaintiff expressed interest in the Memphis VP position,

but he was not nominated for it. (Def. SMF ¶¶ 12, 14, 15;

Doc. 83-2 ¶¶ 12, 14, 15). 2

1. Citation is to ECF pagination except when citing to

deposition testimony.

2. The parties disagree as to whether Plaintiff was fairly

considered by Pigors for the Memphis hub VP position in 2015 and

Plaintiff’s interest in being nominated by his superior, Ricky Brock,

before the position was filled by Stephens. (Compare Def. SMF ¶¶ 13,

14, 16 with Doc. 83-2 ¶¶ 13, 14, 16). However, this dispute appears to

be immaterial, as Plaintiff has withdrawn his initial allegation that

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Appendix C

II. Plaintiff’s Warning Letters From Supervisors

During the time that Plaintiff reported to VP Owens,

Plaintiff received discipline counseling concerning

administrative failures. (Def. SMF ¶ 38; Doc. 83-2 ¶ 38).

Owens testified that he issued the discipline to Plaintiff

in the form of a “warning letter[,]” initiated by excessive

absences and communications failures about managing

operations. (Owens Dep. at 41:6-10; Def. SMF ¶ 38).

Owens also testified that prior to Owens’s issuance of

the discipline letter, Plaintiff was not reachable during

“critical points in [his] operation” when he needed to be

there. (Owens Dep. at 44:9-11; Def. SMF ¶ 39). Owens also

issued Plaintiff verbal counseling for taking Fridays off

“for two to three months . . . as a liberty day[.]” (Owens

Dep. at 49:14-16; Def. SMF ¶ 39; Doc. 83-2 ¶ 39). Plaintiff

stated that the Fridays on which Owens believed he

took “liberty days” were misclassified in the Microsoft

Outlook calendar to which Owens had access. (Pl. Decl.

¶ 15). On May 14, 2008, Owens issued Plaintiff further

discipline in the form of a warning letter. (Doc. 61-1 at

2-3; see also Def. SMF ¶ 40; Doc. 83-2 ¶ 40). Specifically,

the letter cited Plaintiff’s failure to contact members of

upper management regarding an aircraft accident and

resultant “asset damages[.]” (Doc. 61-1 at 2). The letter

advised Plaintiff of his right to appeal the discipline’s

issuance through FedEx’s “Guaranteed Fair Treatment

Procedure/EEO Complaint Process[.]” (Id.). Plaintiff did

not utilize Defendant’s appeal process. (Doc. 83-2 ¶ 41).

he was denied the opportunity to apply for the Memphis VP position

on the basis of his race. (Doc. 83 at 4, n.1).

63a

Appendix C

On August 12, 2015, VP Brock issued Plaintiff a written

Performance Reminder, which cited communications

issues, Plaintiff’s failure to follow uniform reporting

mandates, and “poor judgment” resulting from occurrences

such as Plaintiff’s continued decision to park in a secured

lot despite being told not to by a managing director of

security, Alex Kerr (“Kerr”). (Doc. 63-1 at 1-2; see also

Brock Dep. at 88:12-91:23; Doc. 83-2 ¶ 43). After Kerr

directed managing directors not to park in the secured

area, Plaintiff obtained approval to do so from Kerr’s

subordinates, security managers Lois Burnett or Richard

Lansidle. (Doc. 83-2 ¶ 43;Pl. Decl. 84; Doc. 86 at 10:6-18).

Plaintiff also sent an email to Kerr indicating that he

would require parking within the security gates “when I

am conducting employee meetings at and between ATLR

and FOPRT” or “when a member of my team needs to

bring in food for safety events, skip levels, or employee

celebrations and meetings, etc.” (Doc. 61-19 at 2). In a

response, Kerr stated that he did “not see an issue with

anything you have described we just need to make sure

that this is properly communicated[. W]e have processes

to deal with this at other locations that Lois [Burnett] can

implement for you.” (Id.).

On June 16, 2016, VP Stephens issued Plaintiff

a warning letter regarding over forty past due or

delinquent managerial tasks, referred to as “PRISMs,”

which included late employee performance reviews, past

due mandatory Department of Transportation (“DOT”)

requirements, and past due safe driving awards. (Def.

SMF ¶ 64; Doc. 83-2 ¶ 64). Specifically, Stephens’s letter

cited 26 late performance reviews, 20 past due DOT

64a

Appendix C

requirements, and six past due safe driving awards.

(Doc. 61-3 at 2). Stephens wrote that “[w]hile a select few

were explainable, the majority were not and dated back

to June, 2015 or 11 months delinquent.” (Id.). Stephens’s

letter also stated that Plaintiff had falsely told Stephens

he had counseled his subordinates for the late PRISM

tasks when in fact he had not done so. (Id.). Instead,

Stephens stated, Plaintiff had “merely forwarding my

EMAIL communications, intended for you, to your team

versus taking a sense of ownership and demonstrating

a leadership role in upholding policy[.] . . . Your lack of

ownership and associated leadership are a conduct issue

and in direct violation of the Acceptable Conduct Policy,

P2-5[.]” (Id. at 3). Stephens’s letter stated that, “In

accordance with policy, this Warning Letter will remain

active for twelve months. Any three (3) notifications of

deficiency (i.e., any combination of Warning Letters and/

or Performance Reminders) received within a 12-month

period may result in termination.” (Id.).

Plaintiff received another disciplinary letter from

Stephens on August 11, 2016, which referenced multiple

inaccurate expense reports, unauthorized distribution of

confidential information, operational failures resulting in

delayed services, and non-compliance with capture rates

and audit performance. (Def. SMF ¶ 75; Doc. 83-2 ¶ 75;

Doc. 61-4 at 2-5). Further, that letter cited Plaintiff’s

requisition to replace an employee despite Plaintiff’s unit

being fully staffed. (Def. SMF ¶ 76; Doc. 83-2 ¶ 76; Doc. 61-4

at 2). Finally, Stephens’s August 2016 letter referred to a

May 16, 2016 discussion with Plaintiff regarding his failure

to take responsibility for administrative shortcomings, as

65a

Appendix C

well as a June 16, 2016 discussion regarding “the lack of

follow up and improvement from our prior discussion[,]”

which accompanied Plaintiff’s first disciplinary letter from

Stephens. (Doc. 61-4 at 2). 3

III. Plaintiff’s November 2016 Disciplinary Letter And

Termination

Plaintiff was suspended with pay on October 27,

2016 pending an investigation. (Def. SMF ¶ 84; Doc. 83-2

¶ 84). On November 3, 2016, Stephens issued Plaintiff

a Warning/Termination Letter from Stephens “for

insubordination and Leadership Failure in violation of the

Acceptable Conduct Policy (P2-6)[.]” (Doc. 61-7 at 2; see

also Def. SMF ¶ 85; Doc. 83-2 ¶ 85). The letter stated that

Stephens had a conducted an investigation resulting in a

finding that Plaintiff had ignored Stephens’s instructions

regarding the demotion of a subordinate manager named

Ken Baxter. (Doc. 61-7 at 2). Specifically, Stephens’s letter

states that Plaintiff demoted Baxter despite being told

not to do so by Stephens. (Id.). The letter also stated that

Plaintiff continued to park in a secured lot despite being

told not to by former VP Brock and Corporate Security

on nine occasions in September and October 2016. (Id.).

Additionally, the letter referenced a mishandled delivery

unit in Plaintiff’s region that he failed to report, which

caused 122 service failures and Plaintiff’s failure to

“discontinue the application of the T[ime] D[iscrepancy]

[“TD”] delay code due to the excessive use identified in

3. In his response to Defendant’s statement of material facts,

Plaintiff disputes that the discussion referenced by Stephens ever

took place. (Doc. 83-2 ¶ 75).

66a

Appendix C

your District” despite instructions to do so on October 11

and 18, 2016.4 (Id. at 3). Finally, the letter cited Plaintiff’s

two previous disciplinary Warning Letters and stated the

following:

Both the Performance Improvement Policy (P250) and the Acceptable Conduct Policy (P2-5)

provide that three notifications of deficiency

within a twelve-month period normally result

in termination. Therefore, your employment is

terminated effective today.

(Id.). The Warning Letter stated that Plaintiff was

permitted to pursue an appeal of the disciplinary

action under Defendant’s Guaranteed Fair Treatment

Procedures within five days of receipt of the letter. (Id.).

IV. Plaintiff’s Complaints And Defendant’s Internal

Investigation

In May 2016, Plaintiff told Human Resources Adviser

Wanda English (“English”) that Stephens had asked

Plaintiff his age and whether or not he was planning on

retiring soon, stating “just go ahead and move on and let

the young guys take over.” (Pl. Dep. at 226:5-16; see also

4. Defendant put into place TD delay codes “to account for the

discrepancy between clocks on the wall, watches worn by employees,

and clocks in the aircraft[.]” (Def. SMF ¶ 111; Doc. 83-2 ¶ 111). In an

email dated October 11, 2016, Stephens told Plaintiff, “I want the

use of TD delays eliminated. Either the flights departed on time or

they didn’t—we discussed this last week.” (Doc. 61-11 at 2; Def. SMF

¶ 116; Doc. 83-2 ¶ 116).

67a

Appendix C

Pl. SMF ¶ 22). In June 2016, Plaintiff verbally complained

to English and Senior VP of Human Resources, Shannon

Brown, that he believed Stephens had issued him the June

2016 warning letter on the basis of his age “and retaliating

against him by creating a ‘laundry list’ of issues to justify

terminating” him. (Pl. SMF ¶ 23). In August 2016, Plaintiff

again verbally reported to English and Shannon Brown

that he believed Stephens’s August 2016 warning letter

was issued “in an attempt to terminate him because of

his age.” (Id. ¶ 24).

On November 2, 2016, during the time he was

suspended, Plaintiff sent an email to Shannon Brown and

Wanda English complaining of “age/race discrimination,

harassment and retaliation [] against Joseph Stephens.”

(Doc. 61-12 at 2). Plaintiff cited the ageist comments and

questions about whether he was going to retire soon that

gave rise to his verbal complaints, and he stated that he

believed Stephens was about to terminate him based on his

age and race. (Id. at 2-3). Carla Laszewski (“Laszewski”),

Defendant’s in-house counsel, investigated Plaintiff’s

internal EEO complaint initiated by his November 2

email. (See Doc. 57-25 at 2, ¶ 4). Laszewski compiled an

investigative file containing approximately 220 pages of

materials (id.), which found that Plaintiff’s allegations

were unsubstantiated, and his discipline and termination

was issued without violations to FedEx’s EEO policy. “no

policy violations.” (Id. at 7).

On December 5, 2016, FedEx Appeals Board

Administrator Elizabeth Casteel sent Plaintiff a letter as

a follow-up to the appeal of his termination, which stated

in relevant part:

68a

Appendix C

The Appeals Board convened on December 5,

2016, at your request, to review your Warning

Letter/Termination on November 3, 2016, for

violation of the Acceptable Conduct Policy.

The Board carefully analyzed the facts

surrounding your GFTP complaint and it was

the Board’s decision to uphold management’s

actions.

(Doc. 61-25 at 2). Shannon Brown was the head of

Defendant’s Appeals Board, and other Board members

varied on a rotational basis. (Def. SMF ¶ 132; Doc.

83-2 ¶ 132). As part of Defendant’s Human Resources

department collected information, and the Appeals Board

“reviewed the documentation and the facts, discussed

the same, and rendered a decision to uphold Stephens’

decision[.]” (Def. SMF ¶ 132; Doc. 83-2 ¶ 132).

After his termination, Plaintiff’s position was filled by

Thomas Maxwell, an Asian male aged 51 years old. (Def.

SMF ¶ 134; Doc. 83-2 ¶ 134).

Procedural History

On March 3, 2017, Plaintiff filed a Complaint in which

he alleges that Defendant terminated him because of his

race and retaliated against him in violation of 42 U.S.C.

§ 1981. (See generally Doc. 1). Defendant filed an Answer

on April 18, 2017. (Doc. 6). Plaintiff filed an Amended

Complaint with the Court’s leave on June 5, 2017, in which

he added claims of discrimination and retaliation under

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Appendix C

the ADEA, 29 U.S.C. § 621 et seq. (See Doc. 14 ¶¶ 59-72).

Defendant answered the Amended Complaint on June 19,

2017. (Doc. 21).

Defendant has now filed a motion seeking summary

judgment (Doc. 57) with supporting brief (Doc. 57-1),

statement of material facts (Doc. 57-2), and exhibits (Docs.

57-3 through 57-27). Plaintiff submitted a response brief

(Doc. 83), a response to Defendant’s statement of material

facts (Doc. 83-2), a statement of additional material facts

(Doc. 83-3), and exhibits (Docs. 83-4 through 83-38).

Defendant timely replied to Plaintiff’s response (Doc.

91) and filed its own response to Plaintiff’s statement of

additional material facts on June 5, 2018 with exhibits

(Doc. 92; Docs. 92-1 through 92-26).

On June 5, 2018, Defendant filed a Motion To Exclude

Testimony Of Lorene F. Schaefer, Esq. (Doc. 90). Plaintiff

responded to Defendant’s motion to strike on June 20,

2018. (Doc. 94). Defendant has not filed a reply brief, and

the time for doing so has passed. With briefing on both

motions complete, the undersigned turns to the merits of

Defendant’s motions.

Discussion

Defendant’s Motion For Summary Judgment (Doc. 57)

Summary Judgment Standard

Summary judgment is proper “if the movant shows

that there is no genuine dispute as to any material fact

70a

Appendix C

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

Fed. R. Civ. P. 56(a). “A party asserting that a fact cannot

be or is genuinely disputed must support that assertion

by[] . . . citing to particular parts of materials in the

record, including depositions, documents, electronically

stored information, affidavits or declarations, stipulations

(including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials.”

Fed. R. Civ. P. 56(c)(1). The moving party has an initial

burden of informing the court of the basis for the motion

and showing that there is no genuine issue of material fact.

Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986); see also

Arnold v. Litton Loan Servicing, LP, No. 1:08-cv-2623WSD, 2009 WL 5200292, at *4 (N.D. Ga. Dec. 23, 2009)

(“The party seeking summary judgment bears the burden

of demonstrating the absence of a genuine dispute as to

any material fact.”) (citing Herzog v. Castle Rock Entm’t,

193 F.3d 1241, 1246 (11th Cir. 1999)). If the non-moving

party will bear the burden of proving the material issue

at trial, then in order to defeat summary judgment, she

must respond by going beyond the pleadings, and by her

own affidavits, or by the discovery on file, identify facts

sufficient to establish the existence of a genuine issue for

trial. See Celotex, 477 U.S. at 322, 324. “No genuine issue of

material fact exists if a party has failed to ‘make a showing

sufficient to establish the existence of an element . . . on

which that party will bear the burden of proof at trial.’”

AFL-CIO v. City of Miami, 637 F.3d 1178, 1186-87 (11th

Cir. 2011) (quoting Celotex, 477 U.S. at 322).

Furthermore, “[a] nonmoving party, opposing a motion

for summary judgment supported by affidavits[,] cannot

71a

Appendix C

meet the burden of coming forth with relevant competent

evidence by simply relying on legal conclusions or evidence

which would be inadmissible at trial.” Avirgan v. Hull,

932 F.2d 1572, 1577 (11th Cir. 1991), cert. denied, 506 U.S.

952 (1992); see also Fed. R. Civ. P. 56(c)(1)(B), (c)(4). The

evidence “cannot consist of conclusory allegations or legal

conclusions.” Avirgan, 932 F.2d at 1577. Unsupported

self-serving statements by the party opposing summary

judgment are insufficient to avoid summary judgment.

See Midwestern Waffles, Inc. v. Waffle House, Inc., 734

F.2d 705, 714 (11th Cir. 1984).

For a dispute about a material fact to be “genuine,”

the evidence must be such that “a reasonable jury could

return a verdict for the nonmoving party.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “If

the evidence is merely colorable, or is not significantly

probative, summary judgment may be granted.” Id. at

249-50 (internal citations omitted). It is not the court’s

function at the summary judgment stage to determine

credibility or decide the truth of the matter. Id. at 249,

255. Rather, “[t]he evidence of the nonmovant is to be

believed, and all justifiable inferences are to be drawn in

[the nonmovant’s] favor.” Id. at 255.

B. Plaintiff’s Claims

Defendant seeks summary judgment on all of Plaintiff’s

claims, i.e., his discrimination and retaliation claims

under section 1981 and his ADEA age discrimination and

retaliation claims. (Doc. 57).

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Age Discrimination Claim

Analytical Framework

The ADEA provides in relevant part, that “[i]t shall

be unlawful for an employer . . . to fail or refuse to hire

or to discharge any individual or otherwise discriminate

against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because

of such an individual’s age.” 29 U.S.C. § 623(a)(1); see also

Mazzeo v. Color Resolutions Int’l, LLC, 746 F.3d 1264,

1270 (11th Cir. 2014) (“The ADEA, whose purpose is ‘to

promote employment of older persons based on their

ability rather than age,’ 29 U.S.C. § 621(b), prohibits

certain actions by an employer, including the termination

of, or deprivation of employment opportunities against,

an employee who is at least 40 years old because of that

employee’s age.” (citing 29 U.S.C. §§ 623(a)(1)-(2), 631(a))).

“A plaintiff may support a claim under the ADEA

through either direct evidence or circumstantial

evidence.” Mazzeo, 746 F.3d at 1270. “To ultimately

prevail, ‘[a] plaintiff must prove by a preponderance of

the evidence (which may be direct or circumstantial), that

age was the “but-for” cause of the challenged employer

decision.’” Id. (quoting Gross v. FBL Fin. Servs., Inc., 557

U.S. 167, 177-78 (2009)). In Gross, the Court rejected the

application to ADEA claims of the burdenshifting scheme

used in Title VII mixed motive cases, i.e., if the plaintiff

presents evidence that an impermissible characteristic

played a motivating factor in the employment decision,

the burden of persuasion shifts to the employer to prove

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Appendix C

by a preponderance of the evidence that it would have

taken the same action in the absence of the impermissible

motivation. 557 U.S. at 171-74. Instead, the Court observed

that, unlike Title VII, the text of the ADEA does not

authorize a mixedmotive age discrimination claim, and

held that “a plaintiff bringing a disparatetreatment claim

pursuant to the ADEA must prove, by a preponderance

of the evidence, that age was the ‘but-for’ cause of the

challenged adverse employment action,” and “[t]he burden

of persuasion does not shift to the employer to show that it

would have taken the action regardless of age, even when

a plaintiff has produced some evidence that age was one

motivating factor in that decision.” Id. at 173-80.

Thus, “[t]he ADEA requires that ‘age [be] the “reason”

that the employer decided to act.’” Mora v. Jackson Mem.

Found., Inc., 597 F.3d 1201, 1204 (11th Cir. 2010) (quoting

Gross, 557 U.S. at 176). “Because an ADEA plaintiff must

establish ‘but for’ causality, no ‘same decision’ affirmative

defense can exist: the employer either acted ‘because

of’ the plaintiff’s age or it did not.” Id. (citing Gross, 557

U.S. at 180); see also Smith v. CH2M Hill, Inc., 521 Fed.

Appx. 773, 774-75 (11th Cir. 2013) (unpublished decision)

(explaining that it is not sufficient to allege that age

“substantially motivated” the challenged employment

decision, rather “[a]n age discrimination claim under the

ADEA . . . requires that age be the but-for cause of the

termination”); Avera v. Airline Pilots Ass’n Int’l, 436

Fed. Appx. 969, 978 (11th Cir. 2011) (unpublished decision)

(“Although a Title VII plaintiff may prove his case by

showing that his membership in a protected class played

a ‘motivating part’ in the employment decision, an ADEA

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Appendix C

plaintiff must prove that age was the ‘but for’ cause of the

employer’s adverse decision,” i.e., “the ADEA does not

permit a ‘mixed-motive’ claim for disparate treatment.”

(citing Gross and Mora)); Collins v. Fulton Cnty. Sch.

Dist., No. 1:12-CV-1299-ODE-JSA, 2012 U.S. Dist. LEXIS

187392, at *45 (N.D. Ga. Dec. 26, 2012) (“Under the ADEA,

a plaintiff must ultimately prove at trial that age was a

‘determinative factor’ in the employment decision, or, in

other words, that the decision at issue would not have

occurred absent the age discrimination.”), adopted in part

and modified in part on other grounds by 2013 U.S. Dist.

LEXIS 46388 (N.D. Ga. Feb. 27, 2013). 5

“Where, as here, a plaintiff proffers circumstantial

evidence to establish an ADEA claim, [the courts] apply

the burden-shifting framework established in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).”6 Mazzeo,

746 F.3d at 1270 (citing Sims v. MVM, Inc., 704 F.3d

1327, 1332-33 (11th Cir. 2013)). “Under this framework,

a plaintiff must first establish a prima facie case of age

discrimination.” Id. (citing Chapman v. AI Transp.,

5. Plaintiff asserts that but-for causation is not the standard

at the summary judgment stage. (Doc. 83 at 28-29 (citing Ramirez

v. Bausch & Lomb, Inc., 546 Fed. Appx. 829, 833 (11th Cir. 2013)).

However, Plaintiff’s cited

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