Leroy White v. Crystal Mover Services, Inc.

Filing

Opinion issued by court as to Appellant Leroy White. 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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Date Filed: 01/12/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-11638
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-03202-ELR

LEROY WHITE,
Plaintiff-Appellant,
versus
CRYSTAL MOVER SERVICES, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(January 12, 2017)
Before HULL, JORDAN and ROSENBAUM, Circuit Judges.
PER CURIAM:

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Leroy White, an African-American former employee of Crystal Mover
Services, Inc. (“Crystal”), appeals the district court’s grant of summary judgment
in favor of Crystal on his claims of employment discrimination and retaliation,
filed pursuant to 42 U.S.C. § 1981. After review, we affirm.
I. STANDARD OF REVIEW
We review de novo a district court’s grant of summary judgment, viewing
the evidence in the light most favorable to the non-moving party. Brooks v. Cty.
Comm’n, 446 F.3d 1160, 1161-62 (11th Cir. 2006). Summary judgment is
appropriate “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).
II. LEGITIMATE REASONS OR PRETEXT
The district court did not err in granting summary judgment to Defendant
Crystal on Plaintiff White’s race discrimination and retaliation claims, which were
based on circumstantial evidence. Even if White made out prima facie cases of
discrimination and retaliation, he failed to show pretext under the McDonnell
Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); see also Springer v. Convergys Customer Mgmt., 509 F.3d 1344,
1347 & n.1 (applying the McDonnell Douglas framework to claims under both

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Title VII and § 1981 because they “have the same requirements of proof and
present the same analytical framework”).1
Plaintiff White claimed that Defendant Crystal discriminated against him
based on his race and retaliated against him for his prior discrimination lawsuit
against Crystal after Crystal failed to promote White to an open engineer position
in February 2014. On appeal, the parties do not dispute that Defendant Crystal
offered several legitimate, nondiscriminatory reasons for not selecting Plaintiff
White for the engineer position, namely that he did not have the required
supervisory experience, he was not considered a hard worker, he did not show
initiative, and he had not interviewed well. Instead, Defendant Crystal’s five
decision-makers, after interviewing all six candidates, chose Christopher Hite, a
white employee, for the position because they believed he was the most qualified
candidate. Specifically, Hite had prior supervisory experience at an electrical
company, he had obtained an electrical contractor’s license, he was considered a
hard worker who showed initiative, and he had interviewed well.
As the district court explained, Plaintiff White failed to present evidence
from which a jury reasonably could conclude that Defendant Crystal’s reasons
1

On appeal, the parties dispute whether White established a prima facie case of retaliation
and whether White showed that Crystal’s decision not to promote him in February 2014 was
causally connected either to White’s first EEOC charge of discrimination in May 2011 or to
White’s December 2013 participation in the discrimination lawsuit of another Crystal employee,
Frederick Hopkins. We need not address this issue because even assuming arguendo that White
established a prima facie case of retaliation, he failed to show pretext.
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were pretextual. See Chapman v. AI Transport, 229 F.3d 1012, 1024-25 (11th Cir.
2000) (en banc); Combs v. Plantation Patterns, 106 F.3d 1519, 1528-29 (11th Cir.
1997). For the most part, White either recasts Crystal’s reasons or quarrels with
their wisdom, which is insufficient to show pretext. See Chapman, 229 F.3d at
1030 (“A plaintiff is not allowed to recast an employer’s proffered
nondiscriminatory reasons or substitute his business judgment for that of the
employer. Provided that the proffered reason is one that might motivate a
reasonable employer, an employee must meet that reason head on and rebut it, and
the employee cannot succeed by simply quarreling with the wisdom of that
reason.”).
For example, Plaintiff White argues that having an electrical contractor’s
license was not a valid requirement for the engineer position and, in any event, was
no more impressive than White’s online coursework. First, Defendant Crystal did
not require an electrical contractor’s license for the engineer position. Rather,
Crystal required a degree or related experience in electrical or mechanical
engineering. Crystal’s decision makers found that Hite’s class A electrical
contractor’s license was “related experience” that would be helpful to the technical
aspect of the engineer position, and thus assigned White a one out of three, the
highest score for that qualification. While White had obtained some certificates
through online courses, he did not have a degree or a license in electrical or
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mechanical engineering. Thus, White was given a middle score of two for his
education or related experience. At bottom, White is merely quibbling with
Crystal’s judgment about how much more valuable Hite’s licensing credential was
to the position than White’s online coursework.
Similarly, Plaintiff White takes issue with Defendant Crystal’s judgment that
White’s experience as a general contractor supervising subcontractors was not
equivalent to supervising employees, which was the kind of supervisory experience
sought for the engineer position. White, however, does not dispute that his lead
technician position at Crystal did not provide him with supervisory experience and
that he had never supervised “W-2 employees” in his past employment. In other
words, rather than meet Crystal’s reason head on, White simply quarrels with it.
White also argues that Hite was less qualified than another African
American candidate for the position, Edward Austin, because Austin had two
college degrees. White’s argument ignores the fact that Defendant Crystal’s
decision-makers gave both Austin and Hite the highest score—one out of three—
for their education or related experience.
In any event, the evidence does not support Plaintiff White’s contention that
Austin was more qualified than Hite in terms of education and experience. A
comparison of Austin’s and Hite’s credentials shows that Austin had an associate
degree and a bachelor’s degree and that Hite had neither. However, Austin’s
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associate degree was in liberal arts and his bachelor’s degree was in business
management and marketing, not in electrical or mechanical engineering.
Moreover, Hite had more relevant work experience, having worked in the electrical
industry for more than 18 years, whereas Austin had worked for many years doing
non-relevant work, such as being a police officer and owning and managing a
perfume company. Austin did not become an electronics technician until 2000.
While there are various differences between the two candidates’ education and
related experience, the differences are not “of such weight and significance that no
reasonable person, in the exercise of impartial judgment, could have chosen” Hite
over Austin. See Springer, 509 F.3d at 1349 (quotation marks omitted).
Furthermore, Plaintiff White’s emphasis on Austin’s college degrees also
ignores the fact that the candidates’ education and related experience was only one
of several criteria the decision-makers evaluated to determine which candidate was
the most qualified. Austin did not score as highly as Hite on those other
qualifications, which included supervisory experience, work history at Defendant
Crystal, leadership ability, and performance in the interview. Thus, the mere fact
that Austin had college degrees but did not get the position is not evidence of
pretext.

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III. RACIALLY DEROGATORY COMMENTS
Finally, Plaintiff White points to three racially derogatory remarks allegedly
made by Defendant Crystal’s employees. Despite any denials, we consider these
comments as true for purposes of this appeal. More importantly, only one of these
comments was made by a decision-maker for the open engineer position.
Specifically, Frederick Hopkins, another African American employee of Crystal,
testified in a deposition about a conversation he had with Robert Mihalco, one of
the five decision-makers.2 Hopkins, knowing Mihalco had recently been in the
hospital, asked how Mihalco was doing. Mihalco responded, “You know, I ain’t
doing to[o] good. I got that Nigger disease.” Hopkins thought Mihalco’s comment
was a reference to either diabetes or high blood pressure. The record does not
provide a precise date for this conversation, but according to Hopkins, the
exchange with Mihalco occurred around the time, but after, Mihalco had
investigated Hopkins’s own EEOC charge filed in 2011. It is undisputed that
Mihalco’s comment was not made to White or in his presence and that it was
unrelated to the decision not to promote White to the engineer position several
years later in 2014.
2

On appeal, Plaintiff White argues that the district court abused its discretion by refusing
to consider this part of Hopkins’s deposition testimony because White failed to attach the
relevant transcript pages to his response to Defendant Crystal’s summary judgment motion, as
required by the Northern District of Georgia’s Local Rule 56.1. Instead, Crystal filed Hopkins’s
entire deposition transcript in the course of objecting to White’s reliance on Hopkins’s
testimony. We need not address this issue because we agree with the district court’s alternative
ruling that even when Hopkins’s testimony is considered, White fails to show pretext.
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Two other employees who were not decision-makers also allegedly made
racially derogatory comments. Hopkins said that in 2010 he once walked in on an
“all white” meeting of employees who were complaining about him and overheard
one of the employees, Richard Josephus, say, “I’m sick of them niggers.” In
addition, White testified that in 2011 Alford McCarthy, an African American site
manager, said that white workers were better than black workers because they
worked harder. However, like Mihalco’s 2011 comment, neither McCarthy’s 2011
comment nor Josephus’s 2010 comment was related to the decision not to promote
White to engineer in 2014.
Given that there is no other evidence of pretext, these three isolated racial
comments that were not connected to the 2014 promotion decision cannot establish
pretext. See Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1227-30 (11th
Cir. 2002) (explaining that a racially derogatory comment, even by an employee’s
direct supervisor, that is unrelated to the adverse employment action may
contribute to a circumstantial case for pretext but will not be sufficient on its own
to establish pretext).
For these reasons, we affirm the district court’s entry of summary judgment
in favor of Crystal on White’s race discrimination and retaliation claims.
AFFIRMED.

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