Petition for Writ of Certiorari — Clyde Dandridge, Petitioner v. Walmart Stores, Inc.

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 20-12257-AA

CLYDE DANDRIDGE

Plaintiff - Appellant,

versus

WAL-MART STORES, INC.,

Defendant - Appellee.

Appeal from the United States District Court

for the Middle District of Florida

(Filed: April 21, 2021)

ON PETITION(S) FOR REHEARING AND PETITION(S)

FOR REHEARING EN BANC

BEFORE: WILLIAM PRYOR, Chief Judge, JORDAN and

GRANT, Circuit Judges.

PER CURIAM:

The Petition for Rehearing En Banc is DENIED, no judge in regular

active service on the Court having requested that the Court be polled

on rehearing en banc. (FRAP 35) The Petition for Rehearing En

Banc is also treated as a Petition for Rehearing before the panel and

is DENIED. (FRAP 35, IOP2)

ORD-42

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APPENDIX B

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 20-12257

D.C. Docket No. 6:19-cv-00385-PGB-GJK

CLYDE DANDRIDGE

Plaintiff-Appellant,

versus

WAL-MART STORES, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of Florida

(Filed: February 10, 2021)

Before WILLIAM PRYOR, Chief Judge, JORDAN

and GRANT, Circuit Judges.

PER CURIAM:

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Clyde Dandridge appeals the summary judgment

entered in favor of Walmart, Inc., and against his complaint

of discrimination and retaliation under the Florida Civil

Rights Act. Walmart removed this action to the district

court based on diversity of citizenship. 28 U.S.C. §§ 1332,

1441, 1446. We affirm.

‘We review a summary judgment ruling de novo,

viewing the evidence and all factual inferences therefrom in

the light most favorable to the party opposing the motion.”

Essex Ins. Co. v. Barrett Moving & Storage, Inc., 885 F.3d

1292, 1299 (11th Cir. 2018) (citation omitted). Summary

judgment should be granted only when “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). A

genuine issue of material fact exists when “the evidence is

such that a reasonable jury could return a verdict for the

non-moving party.” Quigg v. Thomas Cty. Sch. Dist., 814

F.3d 1227, 1235 (11th Cir. 2016).

Dandridge argues that the district court erred when

it granted summary judgment against his claim of racial

discrimination based on the failure to promote him to

several positions because he met the objective qualifications

for the promotions and the district court erroneously relied

on Walmart’s subjective evaluations to determine that he

was unqualified for them. He also argues that he proved that

Walmart’s proffered reasons for failing to promote him were

pretextual because the promoted individuals were equally or

less qualified than himself and because Walmart

systematically stifled the promotion of black employees

while advancing white employees.

Claims of discrimination under the Florida Act are

reviewed using the same analytical framework as used for

claims under Title VII of the Civil Rights Act of 1964. Harper

v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir.

1998). Both Title VII and the Florida Act prohibit

employment discrimination based on race, color, religion,

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sex, or national origin. 42 U.S.C. § 2000e-2(a)(l); Fla. Stat.§

760(2). We do not consider “whether employment decisions

are prudent or fair” but instead determine “whether

unlawful discriminatory animus motivates a challenged

employment decision.” Damon v. Fleming Supermarkets of

Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999).

The district court committed no error in granting

summary judgment against Dandridge’s claim of racial

discrimination for any failure to promote him. Dandridge

presented no evidence that he was qualified for the positions

or that the individuals hired for those positions had lesser

or equal qualifications. The job description for the three

store manager positions for which Dandridge applied stated

that an applicant must be proficient in the competency area

of “Leads Inventory Flow Process.” That is, the individual

must manage the flow process “to ensure merchandise is

replenished and in-stock” as well as monitor and evaluate

the facility “to identify problems with inventory flow and

signs of shrinkage, and take[| appropriate corrective action.”

Dandridge received a score of “Development Needed” in the

category of “Leads Inventory Flow Process” in his

performance evaluations in 2011, 2013, 2015, and 2016. And

he had been coached for zoning issues and shrinkage.

Moreover, the individuals selected for the positions had

superior qualifications. For four of the six positions—

manager of store #4142 and the three fresh operations

manager positions—the selected individuals all had

previous experience as a store manager of either Walmart or

another “big-box retailer,” and Dandridge admitted he

lacked that experience. For the manager position at store

#3629, the selected individual, unlike Dandridge, was

recommended by other market managers and had no

coaching issues. For the manager position at store #649, the

selected individual had three more years of experience as a

comanager than Dandridge.

Dandridge also failed to present any evidence that

Walmart’s proffered reasons for its hiring decisions were

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false and a pretext for discrimination. That is, Dandridge

failed to prove that Walmart’s proffered reasons were so

implausible, inconsistent, and contradictory that a

reasonable factfinder could find them unworthy of credence,

and he failed to present evidence that the true motivation

for any lack of promotion was racial discrimination.

Dandridge argues that he is more qualified than the

individuals selected because he has a bachelor’s degree, but

he presented no evidence that the successful applicants

lacked college degrees. And the job descriptions for the

manager positions did not mention a college degree as a

minimum or preferred qualification. Dandridge also

provided no evidence to support his self-serving assertion

that Walmart stifled the promotion of black employees.

Dandridge argues that the district court erred in

granting summary judgment against his claims of

retaliation. He contends that he presented sufficient

evidence of a casual nexus between his protected activities

and the alleged retaliatory actions. And he argues that

Walmart’s proffered reasons for its actions were a pretext

for retaliation. The Florida Act prohibits an employer from

retaliating against an employee for opposing any practice

made unlawful by the Act. See Fla.Stat. § 760.10(7). That

prohibition too is patterned after the prohibition in Title VII,

and claims of retaliation are reviewed using the same

framework. Wilbur v. Corr. Sews. Corp., 393 F.3d 1192,

1195 n.l (11th Cir. 2004).

The district court again did not err. For Count Two,

Dandridge failed to establish a prima facie case of

retaliation because he did not prove a causal connection

between the protected activity and the adverse action. An

almost three-year gap separated Dandridge’s complaint of

January 2013 and the refusal to promote him in September

2015. And he presented no evidence that Walmart’s

proffered reasons for not promoting him in September 2015

were a pretext for discrimination. For Count Three,

Dandridge failed to establish a prima facie case of

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retaliation because he failed to prove that he had engaged in

protected activity. Dandridge alleged that he was issued a

written coaching on July 28, 2015, because he sent an email

on July 1, 2015, about not being promoted, but his email

failed to mention any alleged discrimination, racial or

otherwise. Dandridge also presented no evidence that the

individual who issued the written coaching was aware of his

email or of any protected activity. Dandridge’s claim under

Count Four fails because he presented no evidence that

Walmart’s proffered reason for issuing a written coaching on

August 23, 2016, was false. Dandridge received the written

coaching for failing to zone the store properly, for leaving

consumable areas not completely worked, and for failing to

ensure that carts were stored away. For Count Five, even if

we were to assume that his transfer to another store

following the incident on November 1, 2016, qualified as an

adverse employment action, Dandridge’s claim would fail as

a matter of law. Dandridge presented no evidence that the

decisionmaker knew of Dandridge’s earlier EEOC charge. So

Dandridge failed to establish a causal connection between

the protected activity and the alleged adverse action.

AFFIRMED.

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APPENDIX C

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

ORLANDO DIVISION

Case No: 6:19-cv-385-Orl-40GJK

CLYDE DANDRIDGE

Plaintiff,

v.

WAL-MART STORES, INC.,

Defendant.

ORDER GRANTING DEFENDANTS MOTION

FOR SUMMARY JUDGEMENT

(Filed: May 18, 2020)

ORDER

This cause comes before the Court on Defendant’s

Motion for Summary Judgment(Doc. 33 (the “Motion”)), the

response (Doc. 45), and the reply thereto (Doc. 47). Upon

consideration and review of the record as cited by the parties

in their respective briefs, the Motion is due to be granted.

I. BACKGROUND

Plaintiff Clyde Dandridge brings this action against

his former employer, Defendant Wal-Mart Stores, Inc.

(“Walmart”), seeking damages under the Florida Civil

Rights Act of 1992, Fla. Stat. § 706.01 (“FCRA”). Plaintiff

alleges he suffered racial discrimination by Walmart

through his coachings, transfer, termination, and his non­

selection for promotions. (Doc. 1-3). Plaintiff further alleges

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that Walmart retaliated against

discriminatory conduct. (Id.).

him

for

reporting

Plaintiff, who is African American, began working for

Walmart on February 20, 2001, as an hourly Associate at the

Walmart store in Titusville, Florida. (Doc. 36-1, 27:12-28:8).

In August 2003, Plaintiff was promoted to the role of

Assistant Store Manager. (7d.30:17-31:2). In October 2009,

he transferred to a store in Port Orange, Florida, as a CoManager. (Id. 38:22-25, 40:2-8). In late 2016, Plaintiff

transferred to a store in Melbourne,Florida. (Id. 43:13-18).

Plaintiff possesses a bachelor’s degree in Business

Administration from Barry University. (Id. 10:13-21).

A. Plaintiffs Coachings

Management

and

Complaints

to

Throughout his employment, Plaintiff received

disciplinary warnings from various supervisors for work

performance issues. Plaintiff also complained to Human

Resources numerous times regarding alleged discrimination

and mistreatment by said supervisors.

Walmart maintains a Coaching for Improvement

Policy, which provides for three levels of coachings—First,

Second, and Third. (Id. 53:22-54:6). Under this policy, an

Associate may receive only one level of coaching in a 12month period. (Id. 54:10—15). If an Associate receives a

coaching and engages in misconduct within 12 months, the

Associate will receive a higher level of coaching. (Id.). An

Associate is subject totermination if he receives a Third

Written Coaching and then receives another coaching. (Id.

54:25-55:9).

On December 5, 2005, Plaintiff received his First

Written Coaching from the Store Manager for “possible loss

of life due to poor handling, loss of sales due to poor sanitation

throughout the food side of the store [, and b]ad press for

company due to poor sanitation.”(Doc. 39-1, Ex. 8). On March

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22, 2006, Plaintiff received a Second Written Coaching for

not reacting in a “timely manner to the condition of the

store” and “not showing skills to lead or direct his associates

. . . causing loss of sales and profit by not having the shelves

filled.” {Id. Ex. 9). On March 23, 2007, a new supervisor, at

the direction of an interim Store Manager, issued Plaintiff a

First Written Coaching for permitting a vendor to “bring in

and work up merchandise without checking it in first,” which

could “easily cause shrink.”{Id. Ex. 10).1

On November 21, 2008, Plaintiff sent an email to

Walmart executive Rosalind Brewer regarding his efforts to

be promoted during his seven-year tenure with the company.

(Doc. 45-3). He noted that he had applied for promotions

around 20 times and never had an interview while his

coworkers applied less frequently and received interviews

and promotions. {Id.). He expressed concern that many of

these coworkers did not have as much work experience as

him and that he even trained many of these coworkers before

their subsequent promotions. {Id.). Plaintiff also alleges that

he complained that another African American associate was

denied promotions as well. (Doc. 45, p. 2).

On December 13, 2010, Plaintiffs supervisor, Store Manager Kevin

Robinson, issued Plaintiff a First Written Coaching for Plaintiffs

failure to zone and stock the store properly each night. (Doc. 39-1, Ex.

12). The coaching stated that the “impact caused by not zoning and

stocking the store correctly leads to higher morale issues and poor

1 At his deposition, Plaintiff claimed he was issued this coaching

in retaliation for making a complaint to the Ethics Hotline on March 15,

2007, regarding store violations and a hostile work environment. (Doc.

36-1, 76:7-23; Doc. 45, p. 2; Doc. 45-1). However, this coaching was

issued more than 300 days before Plaintiff filled his September 19, 2016

EEOC Charge, and therefore, the related claim is time-barred. EEOC v.

Joe’s Stone Crabs, Inc., 296 F.3d 1265,1271 (11th Cir. 2000) (“Only those

claims arising within 300 days prior to the filing of the EEOC’s

discrimination charge are actionable. Because the EEOC filed its charge

on June 25,1991, discriminatory acts occurring prior to August 29, 1990,

are outside the scope of this action.”). Furthermore, there is no mention

of this incident in his Complaint. (Doc. 1-3).

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customer service throughout the day.” (Id.). Robinson issued

Plaintiff a Second Written Coaching on September 5, 2011,

because Plaintiff failed to leave the store “ready for

business” at the end of the shift. (Id. Ex. 14). Robinson noted

in the coaching that Plaintiff had not made any

improvements in either back room in the three nights he had

worked—“no prepped pallets, not organizing binned pallets

on floor for counting, [and] freezers left in an unorganized

fashion.” (Id.).

On January 15, 2013, Robinson issued Plaintiff a

First Written Coaching after Plaintiff incorrectly assigned a

Maintenance Associate to work in the Electronics

Department. (Doc. 39-1, Ex. 16). The coaching indicated that

such behavior could lead to potential shrink, floors not being

cleaned to expectations, and customer complaints for

unanswered store phone calls. (Id.). Plaintiff claims there

was no policy that prohibited this behavior. (Doc. 45, p. 4).

Shortly after the coaching, Plaintiff complained to Market

Human Resources Manager Cathy Luffy about a comment

Robinson made to him in December 2012—before the

coaching. (Doc. 37-1, 154:14-155:1).2 According to Plaintiff,

Robinson told him that “I’m going to make it my New Year’s

resolution to demote you.” (Id. 153:3-21). When confronted

by Human Resources, Robinson denied making the

statement and said there must have been a

misunderstanding. (Doc. 35-1, 36:5-24). He claimed that he

instead told Plaintiff that he needed to show improvement

or that “next year might be his last year.” (Id.). Nevertheless,

Robinson apologized to Plaintiff at the direction of Human

Resources. (Id. 36:17—24). Robinson later became Market

2 During his deposition, Plaintiff maintained this coaching was

discriminatory because other white Co-Managers used Maintenance

Associates in other capacities without discipline. (Id. 136:18-137:19).

Plaintiff also contends this coaching was issued as retaliation for

reporting the New Year’s incident to Human Resources. (Doc. 45).

However, this coaching was issued more than 300 days before Plaintiff

filled his September 19, 2016 EEOC Charge, and therefore, the related

claim is time-barred. Joe’s Stone Crabs, 296 F.3d at 1271.

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Manager, a position in which he exercised influence over

who was promoted in his district. (Id. 51:15-53:9, 54:8—11).

For a considerable amount of time that Plaintiff worked for

Walmart, he was assigned to Robinson’s district. (Doc. 45, p.

3).

During his deposition, Plaintiff testified about alleged

instances in which Robinson engaged in inappropriate

behavior. First, Plaintiff claimed Robinson would throw a

handheld device called a Telxon toward him when he would

get angry. (Doc. 37-1,144:5-21). Plaintiff never reported this

behavior to Ethics and acknowledged that he did not know

whether Robinson was trying to hit him. (Id. 147:3-13,

151:19-152:1). Second, Plaintiff testified that Robinson once

told him to put a vest on “so we can see you better”when he

was in a group of individuals. (Id. 166:10-20). Plaintiff

perceived this comment to be racial. (Id. 167:22—168:1). He

did not report the incident. (Id.).

In early July 2015, Plaintiff emailed Regional Human

Resource Director Glenn Weinger to complain about his

continued inability to be promoted. (Doc. 45-8). Then, On

July 28, 2015, Plaintiffs new supervisor, Store Manager

Katarzyna Marinez, issued him a First Written Coaching for

“Facility/Housekeeping Standards” after Plaintiff observed

Associates blocking a fire exit with pallets but did not

instruct them to remove the pallets immediately. (Doc. 39-1,

Ex. 20). Marinez advised Plaintiff that this behavior could

potentially cause safety issues by the fire door being blocked.

(Id.). Notably, Walmart received a compliance violation from

a third-party auditor because of his incident. (Doc. 34-1,

63:25-64:2). When an auditor issues a compliance violation

to Walmart, the Associate who is responsible for the

violation generally receives a coaching. (Id. 97:18- 22). All

Associates had received training related to safety issues

posed by not having an open path to a fire exit door. (Id.

64:6-65:1).

On July 1, 2016, Marinez issued Plaintiff a Second

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Written Coaching after he failed to zone the store and “left

the store in unacceptable conditions” before departing from

his shift (Doc. 39-1, Ex. 20). Plaintiff was responsible for the

store’s condition as the highest member of store management

on the overnight shift. (Doc. 34-1, 71:11-15). The coaching

indicated that Plaintiffs behavior impacted the first and

second shift Associates who were required to perform extra

work to ready the store. (Doc. 39-1, Ex. 20). Plaintiff also

over-forecasted hours for the Customer Availability Program

Team Associates by 50 hours. (Id.). The Market Manager,

who arrived at the store that morning at the same time as

Marinez, directed Marinez to coach the Associate who was

responsible for the store not being zoned, which resulted in

Plaintiffs Second Written Coaching. (Doc. 34-1, 70:1671:10, 98:2-20).

Plaintiff alleges that Marinez set him up to fail

because she would tape off bins in the back where inventory

should have been placed, leaving him with no space to place

overstock. (Doc. 37-1, 212:8-213:13). Therefore, he could not

properly do his job because of Marinez’s actions limiting

where he could place overstock. (Id. 214:8-215:3).He stated

that taping off bins was “against company program”

because he wanted “to put merchandise in the bins and

[Marinez was] preventing [him] from putting merchandise

in bins.” (Id. 215:4—10). However, Marinez testified there

was no policy stating bins cannot be taped off at Walmart,

and she taped bins to facilitate the store’s switch to a new

system for processing inventory—at the suggestion of her

Market Manager. (Doc. 34-1, 74:10-75:7). The switch

between systems was made company-wide. (Id.).

Furthermore, Marinez maintains that Plaintiff was not held

accountable for inventory not being in its proper place as

part of this process, but instead he was held accountable for

other pallets and carts of inventory being left out on the floor.

(Id. 81:15-82:1).

After Plaintiff received the Second Written Coaching

from Marinez on July 2, 2016,Plaintiff contacted Weinger to

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lodge a complaint about the coaching. (Doc. 45-5). Plaintiff

also contacted Market Manager Darin Mooney about the

“unfair writeup.” (Doc. 45, p. 4; Doc. 45-7). According to

Weinger, Plaintiff did not allege that Marinez discriminated

against him when she issued the coaching. (Doc. 41-1, p. 1).

Instead, Weinger maintains that Plaintiff stated that the

coaching was unfair. {Id.). Plaintiff contends that he brought

up concerns related to discrimination. (Doc. 45, p. 4). Upon

review, Weinger upheld the coaching. (Doc. 41-1, p. 1).

Plaintiff also spoke to Weinger about concerns he had

after finding a bullet casing in the store’s Community Affairs

Office at the desk he typically used to complete his

paperwork. (Doc. 45-5). Plaintiff alleges that he told Weinger

that the bullet casing was placed above his desk as an act of

intimidation. (Doc. 45, p. 4). He speculated that someone left

the bullet casing at this desk on purpose, as a threat to him,

knowing he would eventually sit at this desk. (Doc. 37-1,

228:25-234:8). At his deposition, Plaintiff testified he

believed Marinez left the bullet casing on the desk or had

knowledge about it, because she also had a bullet casing

“above her head where she sit[s] at her desk.” (Doc.36-1,

16:7-18-3; Doc. 37-1, 224:20-24). Weinger maintains that at

the time of the report,Plaintiff never implicated Marinez and

never stated the bullet casing was related to his race or an

act of retaliation. (Doc. 41-1, f 7). Weinger was unable to

substantiate Plaintiffs claim that the shell was placed on the

desk as a threat to him, in part because Plaintiff

acknowledged that the desk was not specifically assigned to

him. {Id. t 8). Furthermore, Weinger speculated that loose

bullets from damaged boxes of ammunition may be stored in

the locked management office of stores that sell firearms,

such as the store at issue. {Id. H 6).

On August 8, 2016, Plaintiff contacted Human

Resources and the Ethics Hotline to report an Associate who

used a racial slur and showed other Associates his tattoos

supporting white supremacy. (Doc. 37-1, 239:4-18; Doc. 401). Plaintiff did not witness the incident, but another

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Associate reported it to Plaintiff. (Doc. 37-1, 239:24—240:6;

Doc.40-1, 1 4). After receiving this report from the Associate,

Plaintiff discussed the incident with Marinez, and they

agreed Plaintiff should follow Walmart’s reporting policy.

(Doc. 37-1, 243:24-244:18). The Ethics Department assigned

Plaintiff to investigate the allegations. (Id. 245:1—6). On

August 13, 2016, the Associate who allegedly engaged in the

racist conduct was terminated for another reason. (Doc. 341, 79:1-6). Accordingly, the Ethics case was closed because

the allegations could not be substantiated without the

subject Associate’s participation in the investigation. (Doc.

40-1,14).

On August 23, 2016, Marinez issued Plaintiff a Third

Written Coaching for failing to zone the store, leaving

consumable areas not completely worked, and not putting

away carts. (Doc. 39-1, Ex. 23). The coaching noted that this

behavior impacts customer service, adds more work for other

shifts, and lowers morale. {Id.). After the coaching, Plaintiff

complained to Weinger and Market Human Resources

Manager Allison Doll that the coaching was unfair. (Doc. 371, 270:1-5). He told Doll he felt Marinez was discriminating

against him based on his race. {Id.). Doll and the thenMarket Manager reviewed Plaintiffs coaching and

concluded it was appropriately issued based on Plaintiffs

performance. (Doc. 40-1, 1 7). Notably, they reviewed other

coachings at the store and found other, non-African

American managers had been coached by Marinez. {Id.).

They further found that other African American managers

had not received any coachings from Marinez. {Id.).

On September 26, 2016, Plaintiff filed a formal

complaint of employment discrimination with the EEOC.

(Doc. 39-1, Ex. 1). In the complaint, Plaintiff alleged he was

subjected to various acts of discrimination and retaliation by

Walmart. (Id.). He claimed Marinez selectively coached him

for “directives/responsibilities she instituted for the store,”

which were not company policy. (Id.). He further alleged that

she did not coach any of his white peers who were “equally

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responsible for following the same directives she instituted.”

(Id.). He described the incident with the bullet casings and

stated that “nothing was done” despite his many reports to

Human Resources. (Id.).

On November 1, 2016, Plaintiff alleges that Marinez

terminated him for not zoning the store and for other

imperfections that she allegedly found in the store. (Doc. 45,

p. 5).Specifically, he maintains that Marinez told him he was

terminated and demanded that he turn in his keys and radio

on the spot. (Doc. 37-1, 277:24-278:5). Marinez disputes

having terminated Plaintiff. Instead, she claims she

informally coached Plaintiff regarding his performance and

instructed him to go home, advising him that they should

both contact Human Resources to determine the next steps.

(Doc. 34-1, 73:24-74:4, 89:16-90:11). Plaintiff acknowledges

that he did not complete any termination paperwork and

never stopped receiving his regular pay from Walmart. (Doc.

37-1, 278:13-23, 281:15- 282:7).

Within a few days of the incident with Marinez,

Mooney instructed Plaintiff to report to the Sanford store as

a Co-Manager receiving the same pay. (Id. 284:16-285:8).

After working there for a couple of weeks, Doll informed

Plaintiff he would be transferring to a Co-Manager position

at a store in Melbourne. (Id. 285:9-18). The transfer was

approved by Robinson, who was now the Market Manager,

despite a policy precluding a transfer due to Plaintiffs Third

Written Coaching. (Doc. 38-1, 307:23-308:12). On November

27,2016, Plaintiff began working at the Melbourne store. (Id.

298:15-19). The Melbourne store was closer to Plaintiffs

home than the Port Orange store. (Id. 308:24-309:1).

However, Plaintiff maintains that he told Doll that he didn’t

want to go to Melbourne, but instead wanted to be promoted

or transferred the Cocoa store. (Id. 308:17-20).

On January 23, 2018, Plaintiff complained to Market

Manager Jeffrey Worthy about a comment made by Plaintiffs

new supervisor, Camilla Roundtree, during a staff meeting.

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(Doc. 39-1, Ex. 2). Both Worthy and Roundtree are African

American. Plaintiff alleged that during a pre-shift meeting

with at least 25 other Associates on the topic of Sexual

Harassment and Inappropriate Behavior, Roundtree said “if

you all have a problem with harassment or retaliation, see

Clyde.” (Id.). Plaintiff maintains that all the Associates

laughed, and he felt embarrassed and victimized.

Specifically, he thought Roundtree was mocking him

because he had filed the EEOC charge. (Id.). At his

deposition, Plaintiff admitted he did not know whether

Roundtree had any knowledge of his EEOC charge. (Doc. 381, 299:23-300:2). Notably, Plaintiff was one of the members

of management to which Associates could report claims of

harassment. (Id. 300:4-301:12). After talking to Roundtree

and Plaintiff, Worthy was unable to substantiate Plaintiffs

claim that Roundtree behaved inappropriately. (Doc. 43-1).

B. Plaintiffs Applications for Promotions

Plaintiff applied for six positions at Walmart within

365 days of his September 19, 2016 EEOC charge. (Doc. 4-1,

f 9). Three of these applications were for the position of

Store Manager. The job description for the position lists

“leading inventory process” as one of the required

competencies. (Doc. 38-1, 309:16—11:18). Plaintiff received

scores of “needs improvement” in the category of “leads

inventory flow process” on his 2011, 2013,2015, and 2016

annual performance evaluations, and many of his coachings

described herein occurred due to his zoning failures. (Id.;

Doc. 39-1, Exs. 13, 17, 19, 25). He received a score of “solid

performer” in this category on his 2012, 2014, and 2017

annual performance reviews. (Doc. 39-1, Exs. 15, 18, 24).

Plaintiffs overall performance rating on the reviews from

2010 to 2018 was “solid performer.” (Doc. 39-1, Exs. 11, 13,

15, 17, 18, 19,21,24).

First, in September 2015, Plaintiff applied to be a

Store Manager at Store 649 in Titusville, Florida. (Doc. 401, T| 10). Robinson was the Hiring Manager for this position.

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(Id.). He did not select Plaintiff for an interview because he

determined that he was not one of the top three most

qualified candidates. (Id.). The selected applicant had been

a Co-Manager for three years longer than Plaintiff. (Id.).

Second, in December 2015, Plaintiff applied to be a Store

Manager at Store 4142 in Orlando, Florida. (Id. If 11). The

Hiring Manager did not select Plaintiff for an interview and

ultimately chose an internal candidate who had prior

experience as a Store Manager at both Walmart and Lowes.

(Id.). Plaintiff did not have this type of experience. (Doc. 381, 315:9-24). Third, Plaintiff applied to be a Store Manager

at Store 3629 in Port Orange. (Doc. 40-1, 1f 12). At the time,

Plaintiff had an active performance-based Written

Coaching from July 28, 2015. (Id.). The three individuals

selected to interview for the position had no active coachings.

(Id.). The selected candidate was personally recommended

for the position by two different Market Managers. Plaintiff

did not have any such recommendations. (Id. 1 14).

In February 2016, Plaintiff also applied for three

different Fresh Operations Manager positions. (Id. 1 15).

Walmart did not select Plaintiff for interviews. (Id.). All three

individuals selected for these positions had prior experience

as a Store Manager of a big-box retailer. (Id.). Plaintiff did

not have this type of experience. (Doc. 38-1, 315:9-24).

C. Plaintiffs Termination

In the beginning of 2018, Walmart instituted a

company-wide restructuring that reduced the number of CoManagers from four to two per store. (Doc. 43-1, H 7). To

effectuate the restructuring, the Market Managers

instructed their Store Managers to rank their Co-Managers

on four or five competencies. As a team, the Market

Managers and Store Managers met and reviewed the

rankings. (Id.). The Co-Managers ranked in the bottom 20

percent were identified for layoff, and the Market Managers

then met and reviewed the decisions to ensure the ratings

were consistent. (Id.).

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Plaintiff was ranked in the bottom 20 percent of CoManagers. (Id. f 8). He was identified and later confirmed

for layoff. (Id.). Worthy was the ultimate decision-maker in

Plaintiffs termination. (Id.). All Co-Managers impacted by

this restructuring were offered 60 days to find a new position

with Walmart. (Id.). Plaintiff did not apply for another

position, and accordingly, his employment was terminated

on March 30, 2018. (Id.).

Eleven Co-Managers in Plaintiffs Market were

terminated as part of the restructuring. (Id. 1 9). Nine were

white, one was Hispanic, and one was African American

(Plaintiff). (Id.). The other terminated Co-Manager at

Plaintiffs store was white. (Id.).

II.

STANDARD OF REVIEW

A court may only “grant summary judgment if the

movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). The moving party bears

the initial burden of “citing to particular parts of materials

in the record, including depositions, documents,

electronically stored information, affidavits or declarations,

stipulations..., admissions, interrogatory answers, or other

materials” to support its position that it is entitled to

summary judgment. Fed. R. Civ. P. 56(c)(1)(A). “The burden

then shifts to the non- moving party, who must go beyond

the pleadings, and present affirmative evidence to show that

a genuine issue of material fact exists.” Porter v. Ray, 461

F.3d 1315, 1320 (11th Cir. 2006). “The court need consider

only the cited materials” when resolving a motion for

summary judgment. Fed. R. Civ. P. 56(c)(3); see also HRCC,

LTD v. Hard Rock Cafe Int’l (USA), Inc., 703 F. App’x 814,

816-17 (11th Cir. 2017) (per curiam) (holding that a district

court does not err by limiting its review to the evidence cited

18a

by the parties in their summary judgment briefs).3

An issue of fact is “genuine” only if “a reasonable jury

could return a verdict for the non-moving party.” Anderson v.

Liberty Lobby, Inc., All U.S. 242, 248 (1986). In determining

whether a genuine dispute of material fact exists, the Court

must read the evidence and draw all factual inferences

therefrom in the light most favorable to the non-moving

party and must resolve any reasonable doubts in the non­

movant’s favor. Skop v. City of Atlanta, Ga., 485 F.3d 1130,

1136 (11th Cir. 2007). Summary judgment should only be

granted “[wjhere the record taken as a whole could not lead a

rational trier of fact to find for the non-moving party.”

Matsushita Elec. Indus. Co., Ltd. v. Zenith RadioCorp., 475

U.S. 574, 587 (1986).

DISCUSSION

III.

Plaintiff alleges he suffered racial discrimination in

violation of the FCRA when Walmart passed him over for

promotions, transferred him to different stores, gave him

Written Coachings, and terminated him. Plaintiff also

alleges Walmart retaliated against him for reporting

discriminatory conduct in violation of the FCRA. Claims

under the FCRA are analyzed using the same framework as

Title VII claims. Albra v. Advan, Inc., 490 F.3d826, 834 (11th

Cir. 2007).

A. Race Discrimination Claim (Count I)

1.

Transfer, Termination, and Coachings

To establish a prima facie case of race discrimination, the

plaintiff must show: (1) he is a member of a protected class;

(2) he was subjected to an adverse employment action;

3 “Unpublished opinions are not controlling authority and are

persuasive only insofar as their legal analysis warrants.” Bonilla v.

Baker Concrete Const., Inc., 487 F.3d 1340, 1345 (11th Cir. 2007).

19a

(3) the defendant treated similarly-situated employees,

outside of his protected class, more favorably than he was

treated; and (4) he was qualified to do the job. Burke-Fowler

v. Orange Cty., 447 F.3d 1319, 1323 (11th Cir. 2006).

Once the plaintiff establishes a prima facie case of

discrimination, the burden shifts to the employer to rebut

the presumption of discrimination with evidence of a

legitimate, nondiscriminatory reason for the adverse

employment action. Combs v. Plantation Patterns, 106 F.3d

1519, 1528 (11th Cir. 1997) (citing McDonnell Douglas Corp.

v. Green,411 U.S. 792, 802 (1973. ). “This burden is one of

production, not persuasion” and is “exceedingly light.”

Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142

(2000); Meeks v. Comput. Assocs. Int’l, 15 F.3d 1013, 1019

(11th Cir. 1994). Thus, “[t]o satisfy that burden of production,

‘[t]he defendant need not persuade the court that it was

actually motivated by the proffered reasons. It is sufficient

if the defendant’s evidence raises a genuine issue of fact as

to whether it discriminated against the plaintiff.’” Combs,

106 F.3d at 1528 (quoting Tex. Dep’t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 253 (1981)). If the employer produces

evidence of a legitimate, nondiscriminatory reason for the

adverse action, the plaintiff is afforded the opportunity to

show that the employer’s stated reason is a pretext for

discrimination. Combs, 106 F.3d at 1528.

a. Transfer

Plaintiff alleges he was subjected to race

discrimination when Walmart transferred him on November

27, 2016, from the Port Orange store to the Melbourne store

after his incident with Marinez. To establish an adverse

employment action, Plaintiff must show he suffered “a

significant change in employment status, such as a hiring,

firing, failing to promote, reassignment with significantly

different responsibilities, or a decision causing a significant

change in benefits.” Burlington Indus., Inc. v. Ellerth, 524

U.S. 742, 761 (1998).“[A] purely lateral transfer ... if not

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accompanied by any change in position, title, or salary, and

that does not require significant retraining or result in loss of

prestige or opportunities for promotion is not an adverse

employment action.” Greene v. Loewenstein, Inc., 99 F. Supp.

2d 1373, 1382 (S.D. Fla. 2000). Plaintiffs transfer to the

store in Melbourne had no impact on his position, title, or

salary, and it did not require retraining or result in lost

opportunities. (Doc. 37-1, 284:16-285:8). The Melbourne

store was also closer to Plaintiffs home than the Port

Orange store. (Doc. 38-1, 308:24-309:l).4 Accordingly,

Plaintiff has failed to establish a prima facie case of

discrimination as to the transfer.

b. Termination

As to Plaintiffs claim regarding his termination, the

Court finds that the claim is barred because it is outside the

scope of his EEOC charges. The undisputed evidence shows

that in Plaintiffs Second EEOC Charge, filed after he was

terminated, Plaintiff alleged only retaliation. (Doc. 39-1, Ex.

2). Plaintiff did not dispute this fact in his response to

Walmart’s Motion. (Doc. 45). Thus, Plaintiff failed to exhaust

the required administrative remedies for a discrimination

claim based on his termination. See Alexander v. Fulton Cty.,

207 F.3d 1303, 1332 (11th Cir. 2000) (finding a “plaintiffs

judicial complaint is limited by the scope of the EEOC

investigation which can reasonably be expected to grow out

of the charge of discrimination”).

Furthermore, Plaintiff failed to establish his prima

face case of discrimination based on his termination because

he cannot show that Walmart treated similarly situated

4 In his response, Plaintiff describes the Melbourne store as

an “undesirable work location.” (Doc. 45, p. 23). However, Plaintiff does

not give any indication as to what makes this store “undesirable.”

This conclusory allegation does not create a genuine issue of fact. See

Cooper v. Southern Co., 390 F.3d 659, 745 (11th Cir. 2004) (holding

summary judgment was appropriate where the plaintiff relied on

conclusory allegations based entirely on her own subjective beliefs).

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employees, outside of his protected class, more favorably.

Specifically, of the 11 Co- Managers in Plaintiffs Market

that were terminated as part of the restructuring, nine were

white, one was Hispanic, and one was African American

(Plaintiff). (Id.).

Additionally, even assuming Plaintiff could establish

a prima facie case, Walmart presented a legitimate,

nondiscriminatory reason for terminating him—that he was

ranked in the bottom 20 percent of Co-Managers as

identified by the Store Managers and confirmed by the

Market Managers during the company-wide restructuring.

(Doc. 43-1, H 8). Plaintiff has provided no evidence and

presented no argument establishing that this reason was

pretextual.

Thus, Plaintiff has not met his burden of showing a

prima facie case of race discrimination or shown that

Walmart’s nondiscriminatory reason for his termination was

pretextual.

c. Coachings

The

Court now addresses Plaintiffs race

discrimination claims stemming from his various coachings

and related incidents. Plaintiff claims that Marinez

selectively coached him for “directives/responsibilities she

instituted for the store,” which were not company policy.

(Doc. 39-1, Ex. 1). He further alleged that she did not coach

any of his white peers who were “equally responsible for

following the same directives she instituted.” (Id.).

First, the Court notes that it has doubts whether

Plaintiff can establish his prima face case of discrimination

based on Marinez’s coachings. Plaintiff alleges that Marinez

did not coach his white peers for the same directives she

coached him on. (Doc. 39-1, Ex. 1). However, the evidence

shows Marinez coached other non-African American

managers, and that other African American managers had

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not received any coachings from Marinez. (Doc. 40-1, f 7).

This undermines the third prong requiring Plaintiff to

establish that Walmart treated similarly situated

employees, outside of his protected class, more favorably

than he was treated.

However, even assuming Plaintiff can establish his

prima facie case, Walmart has produced a legitimate,

nondiscriminatory reason for the coachings issued against

Plaintiff—that he failed to properly conduct his job

responsibilities. Cuddleback v. Fla. Bd.Of Educ., 381 F.3d

1230,1236 (11th Cir. 2004) (holding that performance issues

constitute a legitimate, nondiscriminatory reason for an

adverse employment action). Accordingly, the burden shifts

back to Plaintiff to establish that this proffered reason is a

pretext for discrimination. In his response, Plaintiff merely

states that “as this Court is aware, the Plaintiff may rely

upon the same evidence used in the prima facie claim to

establish pretext. In this case the Plaintiff chooses to do

exactly this.” (Doc. 45, p. 20). Plaintiff goes on to say there

are lapses in Walmart’s explanation but does not elaborate

beyond this empty assertion. The Court reminds Plaintiff

that the “ultimate burden of persuasion is on the employee,”

Sims v. MVM, Inc., 704 F.3d 1327, 1332-33 (11th Cir. 2013),

and that he must “introduce significantly probative evidence

showing that the asserted reason is merely a pretext for

discrimination,” Zaben v. Air Prods. & Chems., Inc., 129 F.3d

1453, 1457 (11th Cir. 1997). Plaintiff has failed to do so.

From a review of the record, and with little assistance

or guidance from Plaintiff, the Court is unable to conclude

that Walmart’s legitimate, nondiscriminatory reason for the

coachings is pretext for discrimination. As far back as 2005,

Plaintiff was repeatedly coached for performance-related

misconduct. He was coached by numerous supervisors over

the course of twelve years, and these coachings are detailed

and well-documented.Furthermore, the coachings issued by

Marinez were often at the direction of a third party or

reviewed and upheld by a third party. For instance, Marinez

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issued the July 28, 2015 First Written Coaching after

Walmart received a compliance violation from a third-party

auditor due to the fire exit door being blocked. (Doc. 34-1,

63:25-64:2). When an auditor issues a compliance violation

to Walmart, the Associate who is responsible for the

violation generally receives a coaching. (Id. 97:18—22).

Similarly, Marinez issued the July 1, 2016 Second Written

Coaching after the Market Manager, who arrived at the store

that morning at the same time as Marinez, directed Marinez

to coach the Associate who was responsible for the store not

being zoned. (Id. 70:16-71:10, 98:2-20). Finally, Doll and the

then-Market Manager reviewed Plaintiffs August 23, 2016

Third Written Coaching issued by Marinez and concluded it

was appropriate based on Plaintiffs performance.

Accordingly, summary judgment is due to be granted

for Walmart on the race discrimination claims based on the

coachings, transfer, and termination.

2. Promotions

To establish a prima face case of race discrimination

based on failure to promote,the plaintiff must show: (1) that

he was a member of the protected group of persons; (2) he

was qualified for the position and he applied for it; (3) he was

not considered for the position despite his qualifications; and

(4) equally or less qualified individuals outside of his

protected class were considered or hired for the position.

Underwood v. Perry Cty. Comm’n, 431 F.2d 788, 794 (11th

Cir. 2005). Once the plaintiff establishes a prima facie case

of discrimination, the burden shifts to the employer to rebut

the presumption of discrimination with evidence of a

legitimate, nondiscriminatory reason for the adverse

employment action. Combs, 106 F.3d at 1528.

The Court finds Plaintiff failed to establish his prima

facie case. Specifically, Plaintiff did not provide evidence to

show that he was qualified for the positions he applied for or

that equally or less qualified individuals were hired for the

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position. See Underwood,431 F.2d at 794. For the three

Store Manager positions Plaintiff applied for, the job

description listed “leading inventory process” as one of the

required competencies. (Doc. 48-1, Ex. 25). This includes

managing the inventory flow process “to ensure merchandise

is replenished and in-stock” as well as monitoring and

evaluating the facility “to identify problems with inventory

flow and signs of shrinkage.” (Id.). Plaintiff received scores

of “needs improvement” in the category of “leads inventory

flow process” on his 2011, 2013,2015, and 2016 annual

performance evaluations. (Doc. 38-1, 309:16-311:18; Doc. 39l,Exs. 13,17, 19, 25). Many of his coachings described herein

occurred due to his zoning failures. For instance, Plaintiffs

First Written Coaching from December 13, 2010, stated that

Plaintiff failed to zone and stock the store properly each

night. (Doc. 39-1, Ex. 12). Similarly, Plaintiff received his

March 23, 2007 First Written Coaching for permitting a

vendor to “bring in and work up merchandise without

checking it in first,” which could “easily cause shrink.” (Id.

Ex. 10).

Furthermore, the selected applicants possessed

qualifications that Plaintiff lacked. “To be a proper

comparator for purposes of the fourth prong, the employee

must be similarly situated to the plaintiff in all relevant

aspects.” Johnson v. Coffee Cty. Comm’n,714 F. App’x 942,

946-47 (11th Cir. 2017) (internal quotations omitted). With

respect to four of the six promotions at issue, the selected

applicants had more experience than Plaintiff, including

previous Store Manager experience. (Doc. 40-1,

H» 15).

Plaintiff acknowledged he did not have this type of

experience. (Doc. 38-1, 315:9-24). For the other two

positions, the selected applicants had either been a CoManager for longer, did not have any active coachings at the

time of selection (unlike Plaintiff), or received

recommendations from Store Managers. (Doc. 40-1,

10,

12). Therefore, Plaintiff failed to establish his prima facie

case because he did not show he was qualified for the position

or that equally or less qualified applicants were selected. See

25a

Johnson, 714 F. App’x at 947 (affirming summary judgment

on failure-to-promote claim where selected applicant held

license the plaintiff lacked).

Even if Plaintiff established his prima facie case, he

failed to show that Walmart’s legitimate nondiscriminatory

reason for its hiring decision—that the other applicants were

more qualified—is merely a pretext for discrimination. See

Wilson v. B/EAerospace, Inc.,376 F.3d 1079, 1090 (11th Cir.

2004). To establish pretext, Plaintiff must show his race was

more likely than not the reason Walmart failed to hire him

or show Walmart’s explanation is not worthy of belief. See

Underwood, 431 F.2d at 794. Plaintiff argues thatWalmart’s

reason is pretextual because he was more qualified for the

promotions. (Doc. 45, pp. 14-20). In support of this

contention, he points to his long tenure at Walmart, his

education, his initial promotions in 2003 and 2009, and his

“solid performer” ratings on his annual performance

reviews.

In a non-selection case, the plaintiff cannot establish

pretext by “simply arguing or even by showing that he was

better qualified than” the selected applicant. Springer v.

Convergys Customer Mgmt. Grp., 509 F.3d 1344, 1349 (11th

Cir. 2007). “A plaintiff must show that the disparities

between the successful applicant’s and her own

qualifications were of such a weight and significance that no

reasonable person, in the exercise of impartial judgment,

could have chosen the candidate selected over the plaintiff.”

Brooks v. Cty. Comm’n of Jefferson Cty., 446 F.3d 1160, 1163

(11th Cir. 2006) (internal quotations omitted). Plaintiff has

failed to make such a showing. Contrary to Plaintiffs

assertions, the evidence shows that the selected applicants

held superior qualifications over the Plaintiff through their

managerial experience, recommendations, longer tenure,

and lack of disciplinary warnings. Accordingly, Plaintiffs

claim for race discrimination based on failure to promote

fails. Walmart is entitled to summary judgment in its favor

onthe claim.

26a

B. Retaliation Claims (Counts II-V)

Once again, the McDonnell Douglas burden-shifting

framework applies, so Plaintiff bears the initial burden of

showing a prima facie case of retaliation. To establish a

prima facie case of retaliation, Plaintiff must demonstrate

three elements: (1) he engaged in protected activity, (2) he

suffered an adverse employment action, and (3) the adverse

employment action was causally related to his protected

activity. Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453,

1454 (11th Cir. 1998). If Plaintiff establishes a prima facie

case, the burden of production shifts to Walmart to articulate

a legitimate, nondiscriminatory explanation for its

challenged decisions. Brungart v. BellSouth Telecomms.,

Inc., 231 F.3d 791, 798 (11th Cir. 2000). A legitimate,

nondiscriminatory explanation rebuts the presumption of

discrimination raised by the prima facie case, and the

burden of production shifts back to Plaintiff to prove that

Walmart’s reasons were a pretext for intentional

discrimination or retaliation. St Mary's Honor Ctr. v. Hicks,

509 U.S.502, 507 (1993) (quoting Burdine, 450 U.S. at 255).

In analyzing retaliation claims, the Court “must be careful

not to allow [plaintiffs] to simply litigate whether they are,

in fact, good employees/’ Rojas v. Florida, 285 F.3d 1339,

.1342 (11th Cir. 2002).

Plaintiff alleges Walmart retaliated against him in

four instances: (1) by denying him a promotion in September

2015 because he complained on January 16, 2013, about

Robinson’s comment stating “I’m going to make it my New

Year’s resolution to demote you” (Count II); (2) by Marinez

issuing him the July 28, 2015 First Written Coaching less

than a month after he complained to Human Resources

about his continued inability to be promoted (Count III); (3)

by Marinez issuing him the August 23, 2016 Third Written

Coaching in retaliation for his August 8, 2016 complaint

about another Associate engaging in racist behavior (Count

TV); and (4) by Marinez terminating him for zoning issues on

November 2, 2016, in retaliation for his September 26, 2016

27a

EEOC charge (Count V). (Doc. 1-3).

In Count II, Plaintiff asserts that Robinson retaliated

against him by denying his promotion application in

September 2015 because Plaintiff reported the New Year’s

comment in January 2013. As previously discussed, the

selected applicant for the September 2015 promotion had

been a Co-Manager for three years longer than Plaintiff. (Doc.

40-1, K 10). Choosing a more qualified candidate is a

legitimate, nondiscriminatory reason for not promoting

Plaintiff. See Wilson, 376 F.3d at 1090. Plaintiff offers no

evidence of pretext besides baldly arguing he was better

qualified for the position. This argument is not enough. See

Lee v. GTE Fla., 226 F.3d 1249, 1254 (11th Cir. 2000) (“[A]

plaintiff cannot prove pretext by simply showing that she

was better qualified than the individual who received the

position that she wanted.”). Accordingly, Count II fails.

As to Count III, Plaintiff cannot establish he engaged

in a protected act because there is no evidence that any of

his complaints prior to the July 28, 2015 First Written

Coaching had anything to do with race or any other

protected status. In his Complaint, Plaintiff alleges Marinez

issued him the coaching after he emailed Weinger on July 1,

2015, about being passed over for promotional opportunities.

(Doc. 1-3). However, there is no evidence Plaintiff made any

reference to race in that email. (Doc. 45-8). Moreover,

Plaintiff has presented no evidence Marinez was aware of

this email to Weinger. Thus, the record evidence is

insufficient to raise a genuine issue of material fact

suggesting Plaintiff put his supervisors on notice that he

was complaining about prohibited discriminatory conduct.

See Blow v. Va. Coll., 619 F. App’x 859, 864 (11th Cir. 2015)

(emails that did not mention race or claim disparate

treatment because of race did not constitute protected

expression). Accordingly, Plaintiff did not establish a prima

facie case of retaliation as to Count III.

Similarly, as to Count V, Plaintiff cannot establish

28a

that Marinez had knowledge of the alleged protected activity

forming the basis of his retaliation claims. “A plaintiff

satisfies [the causal] element if he provides sufficient

evidence of knowledge of the protected expression and that

there was a close temporal proximity between this

awareness and the adverse action.” Higson v. Jackson, 393

F.3d 1211, 1220 (11th Cir. 2004).

Plaintiff provides no evidence that Marinez knew of

Plaintiffs September 26, 2016 EEOC charge.5 Plaintiff

contends, without citation to the record or case law, “a

reasonable inference can be made that [Marinez] was aware

of the Plaintiffs protected activity” because her immediate

supervisor was Robinson, the Market Manager. (Doc. 45, p.

21). Although all reasonable inferences arising from the

undisputed facts should be made in favor of Plaintiff, “an

inference based on speculation and conjecture is not

reasonable.” Blackston v. Shook & Fletcher Insulation Co.,

764 F.2d 1480, 1482 (11th Cir. 1985). The Court declines to

make this inference without any further evidence that

Marinez knew about the protected activity. Thus, the

alleged protected act could not have caused the alleged

adverse action. See Raney v. Vinson Guard Serv., Inc., 120

F.3d 1192, 1197 (11th Cir. 1997) (holding the plaintiff must

show that the corporate agent who took the adverse action

was aware of the plaintiffs protected expression).

Even assuming Plaintiff can establish a prima facie

case of retaliation as to all counts, Plaintiffs retaliation

claims fail for Counts II through V because Plaintiff did not

carry his burden of producing evidence to permit a

reasonable finding of pretext. See Brungart, 231 F.3d at 798.

5 As to the protected activity serving the basis of Count IV,

Plaintiff testified at his deposition that he told Marinez about the racial

incident. (Doc. 37-1, 244:1). Viewing the record in the light most

favorable to Plaintiff, it can be inferred that Marinez knew about his

Ethics Hotline complaint regarding the incident. However, as discussed

below, Count IV fails because Plaintiff did not demonstrate pretext.

29a

Walmart alleges that Plaintiff received coachings and

missed promotions because his performance did not meet

company expectations. (Doc. 33, p. 16). This assertion is

supported by the well-documented record of performancerelated coachings Plaintiff received from various supervisors

as far back as 2005. According to the Eleventh Circuit,

performance

issues

constitute

a

legitimate,

nondiscriminatory reason for an adverse employment action.

Cuddleback, 381 F.3d at 1236. In response, Plaintiff

seems to attempt to show that Walmart’s reason was

pretextual by arguing that he was written up for “essentially

housekeeping issues” and was “never written up for policy

violations or for substantive issues regarding the

performance of his job duties.” (Doc. 45, p. 21).

To permit a finding of pretext, Plaintiff must provide

evidence which shows that Walmart’s “proffered reason was

false and that the true motive for the action was

discriminatory.” St Marys Honor Ctr., 509 U.S. at 515. “If the

proffered reason is one that might motivate a reasonable

employer, a plaintiff cannot recast the reason but must meet

it head on and rebut it.” Wilson, 376 F.3d at 1088 (11th Cir.

2004). The Court will not act “as a super-personnel

department that reexamines an entity’s business decisions

. . . rather, we limit our inquiry to ‘whether the employer

gave an honest explanation of its behavior.’” Elrod v. Sears,

Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991).

Plaintiff has provided no evidence that Walmart’s

reason was false and that the true motive for its actions was

discriminatory. See St Mary’s Honor Ctr., 509 U.S. at 515.At

most, Plaintiff claims Walmart disciplined him and failed to

promote him because of “housekeeping issues” outside the

scope of policy violations. (Doc. 45, p. 21). Assuming this is

true, Plaintiff still fails to establish how this shows that his

supervisors harbored any discriminatory animus toward

him or retaliated against him. See Silvera v. Orange Cty.

Sch. Bd., 244 F.3d 1253, 1261 (11th Cir. 2001) (“Pretext

30a

means more than a mistake on the part of the employer;

pretext means a lie, specifically a phony reason for some

action.”). Most of the coachings at issue involved Plaintiffs

failure to zone the store properly each night, which is one of

the required competencies of Plaintiffs role as Co- Manager.

(Doc. 39-1, Ex. 5). For instance, the August 23, 2016 Third

Written Coaching, which serves the basis for Count IV, was

given by Marinez because Plaintiff failed to zone the store,

left consumable areas not completely worked, and did not put

away carts. (Doc.39-1, Ex. 23). The job description for CoManager specifically states the position requires“manag[ing]

the inventory flow process (for example, on-hand accuracy,

staffing, managerial routines) to ensure merchandise is

replenished and in-stock.” (Id.). Therefore,the record shows

that Plaintiff was written up for failing to adequately perform

the requiredcompetencies of his role as Co-Manager.

Furthermore, these write-ups were often given at the

direction of third parties and reviewed by upper-level

management. See supra Section III.A.l.c. For instance, the

August 23, 2016 Third Written Coaching was reviewed by

Doll and the then-Market Manager, who concluded it was

appropriately issued based on Plaintiffs performance. (Doc.

40-1, ^ 7). Similarly, Marinez gave Plaintiff the July 28, 2015

First Written Coaching after Walmart received a compliance

violation from a third-party auditor due to the fire exitdoor

being blocked. (Doc. 34-1, 63:25-64:2). These facts, which

Plaintiff does not dispute in his Response, further undermine

a finding that the coachings were based on “a lie [or] a phony

reason.” See Silvera, 244 F.3d at 1261.

The Court finds that Plaintiff has not provided

evidence that Walmart’s reasons were false and that the true

motive for its actions was discriminatory. Accordingly,

Plaintiff has failed to satisfy his burden of producing

evidence to permit a reasonable finding that Walmart’s

legitimate, nondiscriminatory reasons for his adverse

employment actions were pretextual. Walmart’s motion for

summary judgment on the claims of retaliation is due to be

31a

granted.

IV. CONCLUSION

For the aforementioned reasons, Defendant’s Motion

for Summary Judgment (Doc. 33) is GRANTED. The Clerk

of Court is DIRECTED to enter judgment in favor of

Defendant, and thereafter, to close the case.

DONE AND ORDERED in Orlando, Florida on May 18,

2020.

“s/ Paul G. Byron”

PAUL G. BYRON

UNITED STATES DISTRICT JUDGE

Copies furnished to:

Counsel of Record Unrepresented Parties

32a