Daniel Marria v. C.R. England

Filing

Opinion issued by court as to Appellant Daniel Marria. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14453
________________________
D.C. Docket No. 1:12-cv-04141-ODE
DANIEL MARRIA,
Plaintiff - Appellant,
versus
C.R. ENGLAND, INC.
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(February 10, 2017)
Before WILSON and JILL PRYOR, Circuit Judges, and BUCKLEW, ∗ District
Judge.

PER CURIAM:

∗

Honorable Susan C. Bucklew, United States District Judge for the Middle District of Florida,
sitting by designation.

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Daniel Marria appeals the district court’s order granting summary judgment
in favor of his former employer, C.R. England, Inc. (“C.R. England”), on Marria’s
retaliation action brought pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e–2000e-17. After careful review of the record, and with the benefit
of oral argument, we affirm.
BACKGROUND
C.R. England is a family-owned carrier company headquartered in Utah. In
August 2011, C.R. England accepted Marria into its premier truck driver school
but dropped him from the program in November 2011 due to his inability to
perform essential driving functions. C.R. England reaccepted Marria into the
driving school program in January 2012. Upon both instances of enrollment in the
driving school program, Marria received a copy of C.R. England’s Policy Manual
(the “Policy Manual”). The Policy Manual provided that every accident “shall be
considered chargeable unless it is established by investigation and review that there
was no action that the driver could have reasonably taken to avoid the accident and
that his/her actions in no way contributed to the occurrence of the accident.” App.
Vol. 2, Tab 1, p. 52. In the event that an accident is determined to be chargeable,
the Policy Manual provided that the “driver will either receive retraining or be
terminated.” Id.

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After Marria successfully completed C.R. England’s driving school
program, he began working as a student truck driver on February 8, 2012, and then
as a solo truck driver on May 22, 2012. On June 7, 2012, Marria’s truck struck a
metal pole at a loading dock in Pennsylvania.
In accordance with the Policy Manual, C.R. England evaluated the accident
and made an initial determination that the accident was chargeable to Marria.
Marria appealed the determination to the C.R. England Review Board in Salt Lake
City, Utah. C.R. England scheduled Marria to transport a load to Utah so that he
could attend the Review Board hearing on July 30, 2012. The Review Board
concluded that the accident was chargeable to Marria, and it directed him to
complete mandatory retraining in accordance with C.R. England policy by July 31,
2012. Marria did not complete retraining as directed, and he was suspended
effective July 31, 2012. On August 6, 2012, Marria appeared at C.R. England’s
Safety Office, where he was scheduled for retraining. However, Marria again
failed to complete the mandatory retraining. Marria asserts C.R. England required
him to complete retraining in a truck with a manual transmission, which he refused
to do because he had driven an automatic transmission since joining C.R. England.
On August 8, 2012, Marria sent a letter to C.R. England’s Executive Vice
President, Corporate Vice President, and Director of Safety expressing his
disagreement with the Review Board’s decision and requesting an appeal.
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However, C.R. England had no policy for further accident review beyond the
Review Board.
On August 10, 2012, Marria completed an Equal Employment Opportunity
Commission (“EEOC”) Intake Questionnaire in which he alleged he was subjected
to retaliation by C.R. England and expressed his intent to file a Charge of
Discrimination with the EEOC. Specifically, Marria alleged that C.R. England
retaliated against him by requiring him to travel to Utah for the Review Board
hearing. Further, Marria asserted that C.R. England’s refusal to accept evidence
from a witness at his initial hearing was discriminatory and that he was
disadvantaged by C.R. England’s insistence on his retraining being completed in a
manual truck. C.R. England admits that it received a copy of the EEOC Intake
Questionnaire on August 10, 2012.
On August 16, 2012, Marria returned to C.R. England’s Safety Office and
asked whether he could complete the required retraining using his own truck,
which had an automatic transmission. C.R. England contends it agreed to allow
Marria to use his own truck and scheduled him for retraining that afternoon. Marria
contends that C.R. England never informed him that he could use his own truck or
that his retraining had been scheduled. There is no dispute, however, that Marria
did not retrain on August 16, 2012.

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On August 17, 2012, Marria’s supervisor, Justin Kelsch, sent an email to
Larry Luke, C.R. England’s Operation Safety Manager Officer, inquiring about
Marria’s status with C.R. England. Luke responded with the following email:
He had his hearing and the board found the accident
chargeable but your driver refused to do [sic] complete
the accident review or do the mandatory retraining. He
then disappeared, showing up 8/6 and spoke to another
safety manager who sent him out for a standard road
evaluation with Ken Harwood, he again refused to do the
evaluation and told Ken he didn’t know why he had to do
the eval and again disappeared. He appeared at my desk
yesterday, I asked where have you been, he responded
“just living in my truck” [sic] I asked if he was ready to
do his accident retraining and he said he didn’t want to
sign anything and wanted me to explain again why he
had to do a road eval because he still doesn’t take
responsibility for the accident. I explained again
everything about our procedures and suggested he read
the policy manual. I also made arrangements for him to
use his own truck in the eval (which is not the normal
procedure. He said he would return at noon to discuss his
3 pm road evaluation (third attemp [sic] for retraining)
but never showed back up at noon and was a “no show”
for his road evaluation with Ken Harwood our evaluator.
When my supervisor gets in this morning I am going to
review him for a termination. He has also filed a suit
against me and CRE. 1
App. Vol. 2, Tab 2, p. 255. Marria was terminated later that day. In an email
regarding Marria’s termination, Luke stated Marria was terminated for refusing to

1

There is no dispute that, by “suit,” this email references Marria’s August 10, 2012 EEOC
Intake Questionnaire.
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complete the required road evaluation and mandatory retraining after being found
chargeable for the accident. On August 20, 2012, three days after his termination,
Marria filed a Charge of Discrimination with the EEOC.
Marria subsequently initiated this Title VII action against C.R. England in
which he asserts his termination was in retaliation for filing the EEOC Intake
Questionnaire. C.R. England moved for summary judgment. The motion was
referred to a magistrate judge, who issued a report and recommendation
recommending that C.R. England’s motion be granted. The district court adopted
the magistrate judge’s report and recommendation and entered summary judgment
for C.R. England. Marria now appeals.
STANDARD OF REVIEW
We review the district court’s summary judgment ruling de novo, using the
same legal standards as the district court. Weeks v. Harden Mfg. Corp., 291 F.3d
1307, 1311 (11th Cir. 2002). Although the moving party bears the burden of
demonstrating that no genuine issue of material fact exists, see Brooks v. Cnty.
Comm’n of Jefferson Cnty., 446 F.3d 1160, 1162 (11th Cir. 2006), the non-moving
party must make a sufficient showing on each element of the case, see Am. Fed’n
of Labor v. City of Miami, 637 F.3d 1178, 1187-88 (11th Cir. 2011). We must
“view[] the record and draw[] all reasonable inferences in the light most favorable
to the non-moving party.” Weeks, 291 F.3d at 1311. “A mere scintilla of evidence
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supporting the opposing party’s position will not suffice; there must be enough of a
showing that the jury could reasonably find for that party.” Brooks, 446 F.3d at
1162 (internal quotation marks omitted).
DISCUSSION
Title VII prohibits an employer from retaliating against an employee
because he “has opposed any practice made an unlawful employment practice” by
Title VII or because he “has made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing” under Title VII. 42 U.S.C.
§ 2000e-3(a). To make out a prima facie case of retaliation under Title VII, the
plaintiff must show that (1) he engaged in protected activity; (2) he suffered an
adverse employment action by the employer; and (3) a causal connection exists
between the protected activity and the adverse employment action. Crawford v.
Carroll, 529 F.3d 961, 970 (11th Cir. 2008). The causal connection required to
satisfy the showing is “but-for” causation, which requires the plaintiff to show that
he would not have suffered the adverse action if he had not engaged in the
protected conduct. See Univ. of Tex. Sw. Med. Ctr. v. Nassar, __U.S.__, 133 S. Ct.
2517, 2534 (2013). A plaintiff may make the required showing through either
direct evidence or circumstantial evidence. See Wilson v. B/E Aerospace, Inc., 376
F.3d 1079, 1085 (11th Cir. 2004).

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Marria alleges that his termination by C.R. England was in retaliation for
completing the EEOC Intake Questionnaire. 2 He argues that both direct and
circumstantial evidence support his claim. We address each of these arguments in
turn.
I.

Direct Evidence of Retaliation
Marria seeks to avoid summary judgment by first arguing that Luke’s

August 17, 2012 email, which references the EEOC Intake Questionnaire, is direct
evidence of retaliation sufficient to create a genuine issue of material fact. We
define direct evidence as “evidence which reflects a discriminatory or retaliatory
attitude correlating to the discrimination or retaliation complained of by the
employee.” Wilson, 376 F.3d at 1086 (internal quotation marks omitted). Direct
evidence “establishes the existence of discriminatory intent behind [an]
employment decision without any inference or presumption.” Standard v. A.B.E.L.
Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). “As our precedent illustrates, . .
. only the most blatant remarks, whose intent could be nothing other than to
discriminate on the basis of some impermissible factor” constitute direct evidence
of discrimination. Rojas v. Florida, 285 F.3d 1339, 1342 n.2 (11th Cir. 2002).

2

Marria mistakenly refers to his August 10, 2012 EEOC Intake Questionnaire as an “EEOC
Charge.” While Marria did file an EEOC Charge on August 20, 2012, it is of no moment to
Marria’s retaliation claim because this filing occurred after Marria’s termination. Only Marria’s
August 10, 2012 EEOC Intake Questionnaire is relevant to this appeal.
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Evidence that is subject to more than one interpretation does not constitute direct
evidence. Harris v. Shelby Cnty. Bd. of Educ., 99 F.3d 1078, 1083 n.2 (11th Cir.
1996).
Even after viewing the record and drawing all reasonable inferences in the
light most favorable to Marria, Luke’s reference to Marria’s EEOC Intake
Questionnaire in his August 17, 2012 email is not direct evidence of retaliation.
See Weeks, 291 F.3d at 1311. While the reference is made in the same email that
states Marria will be reviewed for termination, it does not demonstrate
impermissible bias or the intent to act on that bias. Indeed, this statement could
reasonably be construed as a natural and understandable factual reference to
Marria’s EEOC Intake Questionnaire when discussing Marria’s background and
contemplated termination. Luke’s statement does not prove a retaliatory animus
“without any inference or presumption,” and it is not direct evidence of retaliation
sufficient to create a genuine issue of material fact. See Standard, 161 F.3d at
1330. The district court, therefore, correctly concluded that Marria did not present
direct evidence of retaliation.
II.

Circumstantial Evidence of Retaliation
Marria next argues that he presented sufficient circumstantial evidence to

create a genuine issue of material fact as to whether his termination was in
retaliation for completing the EEOC Intake Questionnaire. In evaluating retaliation
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claims relying on circumstantial evidence, we use the framework established by
the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010). Under
this framework, the plaintiff must first establish a prima facie case that the adverse
action was retaliatory. Id.
When the plaintiff establishes a prima facie case of retaliation, the burden of
production shifts to the employer to demonstrate a legitimate, non-retaliatory
reason for its actions. Id. at 1181–82. If the employer satisfies this “exceedingly
light” burden by producing rebuttal evidence of a legitimate rationale for its
decision, the plaintiff must then prove that the proffered explanation is pretextual.
Smith v. Homer, 839 F.2d 1530, 1537 (11th Cir. 1988). “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. Quarrelling with
the wisdom of the reason is not sufficient. Id. “To survive summary judgment, the
plaintiff must . . . present concrete evidence in the form of specific facts which
show that the defendant’s proffered reason is mere pretext. Mere conclusory
allegations and assertions will not suffice.” Earley v. Champion Int’l Corp., 907
F.2d 1077, 1081 (11th Cir. 1990).
Also, a plaintiff’s claim will survive summary judgment if he otherwise
presents “enough circumstantial evidence to raise a reasonable inference” that an
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adverse action was taken against him in violation of Title VII. Hamilton v.
Southland Christian Sch., Inc., 680 F.3d 1316, 1320 (11th Cir. 2012). In order to
do so, a plaintiff must demonstrate “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, 106 F.3d 1519, 1538 (11th
Cir. 1997) (internal quotation marks omitted).
a. Prima Facie Case
We are satisfied that Marria has carried his initial burden of establishing a
prima facie case for retaliation. There is no dispute that Marria engaged in a
protected activity (completing the EEOC Intake Questionnaire) and suffered an
adverse employment action (termination). Moreover, the close temporal proximity
(seven days) between the protected activity and his termination is sufficient to
satisfy the casual element. See Goldsmith v. Bagby Elevator Co., 513 F.3d 1261,
1278 (11th Cir. 2008) (“constru[ing] the causal link element broadly so that a
plaintiff merely has to prove that the protected activity and the negative
employment action are not completely unrelated”) (internal quotation marks
omitted); Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007)
(holding that the burden of causation can be met by showing a “very close”
temporal proximity between the statutorily protected activity and the adverse
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employment action). Indeed, C.R. England does not dispute that Marria has
established a prima facie case of retaliation. Accordingly, the crux of the issue
before us is whether C.R. England demonstrated a legitimate, non-discriminatory
reason for Marria’s termination and whether Marria has shown that the reason is
pretextual.
b. Legitimate Non-Retaliatory Reason and Pretext
C.R. England showed a legitimate, non-retaliatory reason for terminating
Marria: Marria’s failure to complete mandatory retraining after the Review Board
found his accident chargeable. Thus, the burden of production shifts to Marria,
who must show that the demonstrated reason is a pretext for retaliation. See Smith,
839 F.2d at 1537. Marria primarily relies on two facts in support his claim of
pretext: the temporal proximity between the protected activity and Marria’s
termination and Luke’s reference to the EEOC Intake Questionnaire in his August
17, 2012 email.
Even after viewing the record and drawing all reasonable inferences in the
light most favorable to Marria, we hold that Marria failed to produce sufficient
evidence that C.R. England’s proffered non-retaliatory reason was pretextual. See
Weeks, 291 F.3d at 1311. Luke’s email statement that Marria “filed suit” against
him—even in light of the temporal proximity between the protected activity and
Marria’s termination—is not enough to create a dispute of fact as to C.R.
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England’s true motivation. In the same email, Luke explained that Marria would be
reviewed for termination because he refused to comply with C.R. England’s Policy
Manual and directions after he was found chargeable for the accident. Marria was
engaged in workplace misconduct—his refusal to retrain—before completing the
EEOC Intake Questionnaire. That Marria was terminated seven days after
completing the EEOC Intake Questionnaire and Luke’s reference to the EEOC
Intake Questionnaire was in the same email that discussed Marria’s termination is
simply not enough to create a disputed issue of fact as to C.R. England’s
motivation for Marria’s termination.
Marria also asserts that his termination was retaliatory because C.R. England
lacked an employment policy identifying “failure to re-train” as grounds for
termination. This assertion is not supported by the record because C.R. England’s
Policy Manual states its drivers are at-will employees and “will either receive
retraining or be terminated” if found chargeable for an accident.
Marria also cites as circumstantial evidence of retaliation C.R. England’s
failure to wait for Marria’s termination to occur automatically as provided for in
the Policy Manual, C.R. England’s creation of unreasonable barriers to Marria’s
ability to retrain by refusing to allow Marria to drive a truck with an automatic
transmission during his retraining, and C.R. England’s failure to respond to
Marria’s internal complaint over the accident review process before terminating
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him. In making these arguments, Marria fails to rebut C.R. England’s legitimate,
non-retaliatory reason head on— Marria simply quarrels with the wisdom of C.R.
England’s policies and decisions leading up to his termination. See Wilson, 376
F.3d at 1088.
It is not our role to adjudge whether business decisions “are prudent or fair.”
See Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir.
1999). Instead, we must determine whether Marria has carried his burden of
presenting substantial evidence that C.R. England’s legitimate, non-retaliatory
reason for terminating him is pretextual. In light of the record before us, we
conclude that Marria has failed to carry this burden. C.R. England’s stated
legitimate, non-retaliatory reason for Marria’s termination is supported by the
record. We therefore affirm the district court’s final summary judgment in favor of
C.R. England.
AFFIRMED.

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