[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 20-13982

Non-Argument Calendar

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D.C. Docket No. 2:18-cv-01240-CLM

NOAH SKELTON, 

 Plaintiff-Appellant,

versus

BIRMINGHAM AIRPORT AUTHORITY, 

 Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Alabama

________________________

(September 30, 2021)

Before WILSON, ROSENBAUM, and NEWSOM, Circuit Judges.

PER CURIAM: 

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Noah Skelton appeals the district court’s order granting summary judgment 

to the Birmingham Airport Authority (BAA) on his claims of race and gender 

discrimination and retaliation under Title VII of the Civil Rights Act of 1964 (Title 

VII), 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a). Upon review of the district court’s 

order, we find that the district court did not err in granting summary judgment on 

either claim. Accordingly, we affirm. 

I.

We review an entry of summary judgment de novo, construing all facts and 

drawing all reasonable inferences in favor of the nonmoving party. Jefferson v. 

Sewon Am., Inc., 891 F.3d 911, 919 (11th Cir. 2018). 

“The court shall 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). An issue of fact is not genuine unless a 

reasonable jury could return a verdict in favor of the non-moving party. Morton v. 

Kirkwood, 707 F.3d 1276, 1284 (11th Cir. 2013). We will give credence to 

evidence favoring the non-movant as well as uncontradicted and unimpeached 

evidence from disinterested witnesses that supports the moving party. Reeves v. 

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000). 

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II.

Skelton, a Caucasian male, began working at BAA as an Operations 

Specialist I (Ops I) in April 2014. BAA operates the Birmingham-Shuttlesworth 

International Airport (the Airport) in Birmingham, Alabama. The racial makeup of 

the BAA is predominantly African American. As an Ops I, Skelton maintains the 

security of the Airport’s landside areas in accordance with BAA policies and

federal safety regulations. 

By June 2016, Skelton’s employee record contained eleven disciplinary 

incidents from the time he was hired by BAA. Then, in June 2016, Andy Cuesta, 

another Ops I, reported to human resources that Skelton had been bothering him at 

work by repeatedly complaining about their shared supervisors despite Cuesta’s 

requests to stop. Skelton’s complaints to Cuesta included concerns that 

supervisors treated women better than men and “favor[] only a certain class of 

people and not others.” Eight days after Cuesta’s reporting, BAA’s Director of 

Operations issued Skelton a written reprimand for “attempting to create an 

environment of discontent...amongst [his] coworkers” and for showing “a 

continued pattern of failing to follow standard operating procedures.” Skelton 

signed the written reprimand and continued his employment.

In February 2017, the BAA suspended Skelton for three days without pay, 

allegedly for his continued failure to adhere to the BAA’s policies and procedures. 

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Skelton’s suspension document stated that he had been disciplined by supervisors 

an additional nine times since the June 2016 written reprimand. During the 

suspension meeting, Skelton complained that the BAA was unfairly singling him 

out. Two days later, Skelton filed a charge of discrimination with the EEOC, 

alleging that his suspension violated Title VII. 

Skelton received his 2017 performance evaluation just over a month after he 

filed the EEOC complaint. Although the evaluation rated Skelton as “Meets 

Expectations,” it cited his June 2016 written reprimand and February 2017 

suspension as evidence that he needed further improvement. Skelton wrote in the 

employee comments section of his evaluation his belief that the critical feedback 

was in response to his EEOC filing. In September 2018, David Thompson, a 

supervisor, allegedly yelled at Skelton in front of a non-supervisory co-worker for 

not answering the phone while on break. Skelton reported the incident to a human 

resources manager and stated that the interaction made him uncomfortable.

Thompson was allegedly never disciplined for this behavior.

In his civil suit in district court, Skelton alleged that the BAA treated him 

unfavorably as compared to his African American and female coworkers in 

violation of Title VII. In so arguing, Skelton alleged that BAA had a habit and/or 

practice of discriminating against Caucasians and males. To support this, Skelton 

claimed that he was falsely accused of a multitude of infractions and disciplined,

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while his African American and female co-workers were punished less harshly for 

their violations, if at all. He further alleged that he was denied pay, denied time 

off, and subjected to a hostile work environment because of his gender and his 

race. Skelton also asserted that the BAA retaliated against him for engaging in a 

protected activity.

In response, BAA argued that, applying the McDonnell Douglas1

framework, Skelton could not make a prima facie showing of race or gender 

discrimination because he could not identify a similarly situated coworker who was 

treated more favorably. As to the retaliation claim, BAA argued that Skelton could 

not establish a prima facie case of retaliation because he failed to establish a causal 

link between any alleged protected activity and an adverse employment action.

BAA noted that at the time of Skelton’s alleged complaint in February 2017, it had 

already made the decision to suspend Skelton for three days and had informed him 

of that decision. BAA argued that Skelton had suffered no adverse employment 

action since the filing of his EEOC charge, was still employed by BAA, and 

testified that he liked his job. BAA further argued that Skelton could not show that 

BAA’s legitimate, nondiscriminatory, nonretaliatory justifications for its 

suspension of Skelton were pretext for any discriminatory or retaliatory animus. 

BAA also argued that Skelton’s complaint did not include a separate count alleging 

1 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 

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a hostile work environment and made vague and conclusory allegations that he was 

harassed.

Following discovery, BAA filed a motion for summary judgment, which

was granted. After careful review, we conclude that the district court did not err in 

concluding that Skelton failed to establish a prima facie case of race and gender 

discrimination through circumstantial evidence because he did not identify any 

similarly situated comparators. The district court also did not err in determining 

that Skelton failed to show that his coworkers who engaged in misconduct were 

treated better than he was. Further, the district court did not err in finding that 

Skelton failed to establish that any protected activity was causally connected to his 

materially adverse employment action, where he did not engage in protected 

activity before his suspension, and the discipline he received a year and a half after 

his protected activity was too far removed to establish a causal connection. 

Therefore, we affirm. 

III.

Title VII forbids employment discrimination against any person on the basis 

of race or sex. 42 U.S.C. § 2000e-2(a). Discrimination can be proven through 

direct or circumstantial evidence. Hinson v. Clinch Cnty., Ga. Bd. of Educ., 231

F.3d 821, 827 (11th Cir. 2000). 

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In evaluating claims of discrimination based on circumstantial evidence, 

courts may use the McDonnell Douglas burden-shifting framework. See Alvarez v. 

Royal Atl. Devs., Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). To establish a prima 

facie claim of discrimination based on circumstantial evidence under McDonnell 

Douglas, a plaintiff must show that: (1) he is a member of a protected class; (2) he 

was subjected to an adverse employment action; (3) the employer treated similarly 

situated employees who were not members of the plaintiff’s class more favorably; 

and (4) the plaintiff was qualified for the job or benefit at issue. Rice-Lamar v. 

City of Fort Lauderdale, 232 F.3d 836, 842–43 (11th Cir. 2000). 

Skelton’s claim fails under the McDonnell Douglas framework because

Skelton failed to identify any comparators under the third prong. As such, we need 

not analyze the other prongs. To satisfy the third prong a comparator must be 

“similarly situated in all material respects,” meaning that the plaintiff and 

comparators are “sufficiently similar, in an objective sense, [such] that they cannot 

reasonably be distinguished.” Lewis v. City of Union City, 918 F.3d 1213, 1218, 

1228 (11th Cir. 2019) (en banc) (internal quotation marks omitted). Although this 

standard requires a case-by-case analysis, a similarly situated comparator will 

ordinarily have engaged in the same basic misconduct as the plaintiff, been subject 

to the same employment policy, guideline, or rule, shared the same supervisor, and 

shared the plaintiff’s employment or disciplinary history. Id. at 1227–28. 

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Skelton failed to identify any similarly situated comparators who were 

treated better than he was. Three of the identified comparators were supervisors, 

not Ops Is; they are thus not similarly situated. And none of the five total

identified comparators were alleged to have committed the same or substantially 

the same misconduct as Skelton. Moreover, each of the comparators was 

disciplined for the misconduct he or she engaged in. See id. at 1227–28. Thus, 

Skelton did not present a valid comparator. As such, the district court correctly 

found that he did not establish a prima facie case of race or gender discrimination. 

When a plaintiff is unable to produce a comparator, he can still present a 

triable issue of fact through direct evidence of discriminatory intent or through a 

“convincing mosaic” of circumstantial evidence that would allow an inference of 

discriminatory intent. Id. at 1220 n.6. Skelton asserts a “convincing mosaic” 

theory for the first time on appeal. We generally refuse to consider arguments 

raised for the first time on appeal. Ramirez v. Sec’y, U.S. Dep’t of Transp., 686 

F.3d 1239, 1249–50 (11th Cir. 2012). And specifically, we have held recently that 

a party forfeits a “convincing mosaic” argument by failing to adequately brief the 

issue below. See Bailey v. Metro Ambulance Servs., 992 F.3d 1265, 1273–74 (11th 

Cir. 2021) (per curiam). Accordingly, Skelton waived the “convincing mosaic” 

argument by failing to raise it below. 

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Skelton has not provided direct or circumstantial evidence to support a

showing of discriminatory intent. To the contrary, the record demonstrates that 

Skelton received a written reprimand for creating an atmosphere of discontent 

among his coworkers and was suspended for repeated violations of the employee 

code of conduct. Thus, the record evidence did not show a genuine dispute as to 

any material fact, and the district court correctly granted summary judgment to 

BAA as to Skelton’s race and gender discrimination claims. See Morton, 707 F.3d 

at 1284. The district court thus properly granted BAA’s summary judgment 

motion on Skelton’s disparate treatment Title VII claim. 

IV.

Title VII also prohibits employers from retaliating against an employee 

because he has opposed any employment practice made unlawful by Title VII. 42 

U.S.C. § 2000e-3(a). Absent direct evidence of retaliation, we employ the 

McDonnell Douglas burden-shifting framework when analyzing claims for 

retaliation that rely on circumstantial evidence. Brown v. Ala. Dep’t of Transp., 

597 F.3d 1160, 1181 (11th Cir. 2010). 

A prima facie claim of retaliation under Title VII requires the plaintiff to 

show that: (1) he engaged in a statutorily protected activity; (2) he suffered a 

materially adverse employment action; and (3) there was a causal connection 

between his protected activity and the adverse action. Chapter 7 Tr. v. Gate 

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Gourmet, Inc., 683 F.3d 1249, 1258 (11th Cir. 2012). Title VII’s statutory 

protections are not limited to those who file formal complaints; they also extend to 

those who voice informal complaints to their superiors or who use their employers’ 

internal grievance procedures. Rollins v. State of Fla. Dep’t of Law Enf’t, 868 F.2d 

397, 400 (11th Cir. 1989) (per curiam). Even if a disputed employment practice is 

lawful, a plaintiff can show that he engaged in a protected activity if he proves that 

he had a good faith, objectively reasonable belief that the practice was unlawful. 

See Dixon v. Hallmark Cos., 627 F.3d 849, 857 (11th Cir. 2010). 

A materially adverse employment action is an action that “might have 

dissuaded a reasonable worker from making or supporting a charge of 

discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 

(2006) (internal quotation marks omitted). The plaintiff must generally establish 

that the employer was aware of the protected expression when it took the adverse 

employment action. Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 (11th 

Cir. 1997). Close temporal proximity between the protected activity and the 

adverse action is sufficient circumstantial evidence of a causal connection. Higdon 

v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004). Nevertheless, causation must be 

established according to traditional principles of but-for causation, which require 

proof that the desire to retaliate was the but-for cause of the challenged action. 

Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352, 360 (2013). 

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Only three of Skelton’s complaints made during the relevant time are 

protected activity: (1) his February 2017 EEOC complaint; (2) his February 2017 

complaint during his suspension meeting; and (3) his written comments on his 

March 2017 performance evaluation. Skelton does not argue that he was subjected 

to any specific materially adverse employment action after March 2017. Instead, 

he argues generally that he experienced material adverse actions that, in the 

aggregate, would discourage someone from complaining about discrimination.

Skelton argues that three disciplinary counseling sessions related to

Skelton’s alleged workplace misconduct occurring in September 2018, October 

2019, and December 2019 were materially adverse actions for engaging in 

protected activity. Even so, Skelton cannot show a causal relationship between his 

protected activities in February and March of 2017 and the alleged adverse 

employment actions, the first of which occurred a year and a half later in 

September 2018. See Higdon, 393 F.3d at 1220. The substantial delay between 

these events precludes finding a causal relationship. Id. 

Here, because Skelton failed to show that any protected activity was causally 

connected to his adverse employment action, the district court properly granted 

BAA’s summary judgment motion regarding Skelton’s Title VII retaliation claims.

AFFIRMED.

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