Bernard Toomer v. CACI, Inc.-Federal

Filing

Opinion issued by court as to Appellant Bernard Toomer. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

Case: 14-10176

Date Filed: 05/21/2014

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10176
Non-Argument Calendar
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D.C. Docket No. 8:12-cv-02832-RAL-EAJ
BERNARD TOOMER,
Plaintiff- Appellant,
versus

CACI, INC. – FEDERAL,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 21, 2014)
Before HULL, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Bernard Toomer appeals the summary judgment in favor of his former
employer, CACI, Inc. – Federal, and against his complaint that he was fired
because of his race, in violation of Title VII of the Civil Rights Act of 1964, 42

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U.S.C. § 2000e-2(a)(1), and the Florida Civil Rights Act, Fla. Stat. § 760.01. We
affirm.
CACI contracts with the government to provide information technology
services in the areas of defense, intelligence, and homeland security. Between
2000 and 2010, Science Applications International Corporation subcontracted with
CACI to provide technology services to the Defense Information System Agency
and its field offices around the world. In 2000, CACI hired Toomer, as a level
three engineer, to work in Bahrain to evaluate and recommend products for the
Agency to use in operating and maintaining the security of its global computer
network systems.
In 2008, CACI assigned Toomer to a two-phase project in which he would
move the network domain operations for the Agency from Bahrain to MacDill Air
Force Base outside of Tampa, Florida, and then transition the Southwest Asia
Promina Domain from a Transport technology to an Internet Protocol technology.
During the project, Glenn Morefield, a project manager at CACI, supervised
Toomer, while Anthony McFadden, a Division Chief for the Agency, oversaw
Toomer’s daily work. During the first phase of the project, McFadden was
“disappointed with [Toomer’s] performance and capabilities.” On July 30, 2010,
Stephen Gessling, an employee of Science Applications who served as a liaison
between the Agency and CACI, sent an email to CACI reciting McFadden’s
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criticisms of Toomer’s work; stating that Toomer lacked the skills necessary to
work on the second phase of the project; and requesting that CACI remove Toomer
from the project. In a later email, Gessling stated that McFadden disapproved
strongly of Toomer’s performance and that McFadden “rebuffed” Gessling’s
suggestions to “plac[e] Mr. Toomer in another position.” Later, Toomer spoke
with McFadden in his office. McFadden told Toomer that “we are getting rid of
you” and that he had 30 days to seek other employment.
CACI removed Toomer from the project because the contract between
Science Applications and CACI required it to “remove and replace any keyprimary personnel or individual whose performance is determined by the
Government to be so deleterious as to jeopardize successful performance of the
Subcontract.” CACI found Toomer another position as a level 2 engineer at Scott
Air Force Base in Illinois, but Toomer declined the position because his salary
would be decreased. Later, CACI sent Toomer a separation letter stating that he
was fired “based on [his] inability to meet the work performance requirement in
[his] current position”; that he was eligible to be rehired by CACI; and that a
representative was available to help him find another position with CACI. Toomer
signed the separation letter.
Toomer complained that CACI terminated him because he was AfricanAmerican. CACI filed a motion for summary judgment to which it attached the
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email sent by Gessling and a copy of Toomer’s deposition during which he
acknowledged that CACI had the limited options of giving him another position or
firing him. Toomer argued in opposition that he was given positive performance
evaluations by Morefield and that there was no evidence that he lacked the skills
needed to perform the next phase of the project. Toomer argued that the reason
given for his termination was pretextual because it was inconsistent with the
enthusiastic praise he had received in his evaluations.
The district court entered summary judgment in favor of CACI. The district
court ruled that Toomer could not establish a prima facie case of discrimination
because he was not qualified to work on a project when CACI was contractually
required to remove him at the request of the Agency. In the alternative, the district
court ruled that Toomer failed to prove that the legitimate, race-neutral reason that
CACI gave for the termination was a pretext for unlawful discrimination.
The district court did not err when it entered summary judgment against
Toomer’s complaint. To establish a prima facie case of unlawful discrimination
under Title VII and under the Florida Civil Rights Act, Toomer had to establish
that he was a member of a protected class; he was qualified to do the job; he was
subjected to an adverse employment action; and he was treated less favorably than
similarly situated individuals outside his protected class. See Holland v. Gee, 677
F.3d 1047, 1055 (11th Cir. 2012); Alvarez v. Royal Atl. Developers, Inc., 610 F.3d
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1253, 1271 (11th Cir. 2010). Toomer failed to establish that he was qualified to
work on the project after the government demanded his removal from that project.
Toomer argues that a genuine factual dispute exists about whether McFadden was
dissatisfied because “[t]he only support for [his] observations comes from emails .
. . [from] Gessling” and because “a reasonable argument can be made that Gessling
pursued Toomer’s removal and McFadden merely acquiesced to [that] decision,”
but Toomer failed to submit any evidence to substantiate these arguments. See
Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (“[U]nsupported
speculation . . . does not meet a party’s burden of producing some defense to a
summary judgment motion.” (quoting Hedberg v. Ind. Bell Tel. Co., 47 F.3d 928,
931–32 (7th Cir. 1995)). The record establishes, without dispute, that McFadden,
who is also African-American, told Toomer that he was being fired. According to
its contract, CACI was required to remove Toomer from the project at the request
of the government and regardless of the positive evaluations that Toomer received
from his supervisor at CACI. And Toomer acknowledged that, when he declined
to accept the other position offered by CACI, it had no alternative but to fire him.
For the same reasons, even if we were to assume that Toomer established a prima
facie case of discrimination, he failed to establish that the reason proffered for his
termination was a pretext for discrimination. See Cuddeback v. Fla. Bd. of Educ.,
381 F.3d 1230, 1235-36 (11th Cir.2004) (holding that this Court may affirm the
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district court’s judgment on any ground that finds support in the record and
affirming when plaintiff established a prima facie case but failed to establish
pretext).
We AFFIRM the summary judgment in favor of CACI.

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