[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 13-14902

Non-Argument Calendar

________________________

D.C. Docket No. 1:11-cv-02452-AT

MARLON CARSON, 

LAMAR CLARK, 

 Plaintiffs-Appellants,

 versus

METROPOLITAN ATLANTA RAPID 

TRANSIT AUTHORITY (MARTA), 

BEVERLY SCOTT, 

individually and in her official capacity as 

the General Manager of MARTA, et al.,

 Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(July 25, 2014)

Case: 13-14902 Date Filed: 07/25/2014 Page: 1 of 14 
2

Before HULL, MARCUS, and ANDERSON, Circuit Judges.

PER CURIAM: 

Marlon Carson and Lamar Clark (collectively, “Plaintiffs”) jointly appeal 

from the district court’s grant of summary judgment in an employment racial 

discrimination and retaliation suit brought under Title VII of the Civil Rights Act 

of 1964, 42 U.S.C. § 2000e, and 42 U.S.C. § 1981. The suit named as defendants 

the Plaintiffs’ employer, the Metropolitan Atlanta Rapid Transit Authority

(“MARTA”), as well as the following MARTA officials in both their individual 

and official capacities: Beverly Scott, general manager; John M. Weber, director 

of rails and operations; Linda Lee, general superintendent; Richard Krisak, 

assistant general manager of rail operations; and Dwight Ferrell, chief operating 

officer (collectively, “Defendants”). 

The Plaintiffs’ complaint stemmed from their 2009 terminations from their 

positions with MARTA. Carson, an African-American who worked as a rail line 

supervisor, alleged that he had been fired for racially discriminatory and retaliatory 

purposes, under the pretext that he had violated MARTA rules by operating a train 

while off duty on September 17, 2009, among other misconduct. Clark, an 

African-American who worked as a rail superintendent, alleged that the 

Defendants fired him after he had objected to Carson’s treatment, under the pretext 

that Clark had failed to fully investigate Carson’s earlier alleged violations of 

Case: 13-14902 Date Filed: 07/25/2014 Page: 2 of 14 
3

MARTA’s radio-operation policies and had forwarded to Carson, without 

authorization, an e-mail that contained the recordings of the radio transmissions 

being investigated. 

I. Racial Discrimination

The Plaintiffs first argue that the district court erred in granting summary 

judgment in favor of the Defendants as to the Title VII and § 1981 claims of racial 

discrimination. They contend that the Defendants’ proffered legitimate, 

nondiscriminatory reasons for their terminations were contradictory and not 

credible, and therefore the claims should survive summary judgment. 

The Plaintiffs then proceed to list a number of alleged contradictions within 

the evidence. First, inconsistencies exist as to whether certain defendants had seen 

a letter written by an individual who had accused Weber of creating a hostile work 

environment. Second, the evidence included contradictory accounts as to the 

extent of the Defendants’ knowledge regarding Weber’s alleged discriminatory 

conduct. Third, contradictory evidence exists as to the manner in which MARTA 

investigated and reported Carson’s alleged rule violations. Fourth, the evidence 

shows an inconsistency regarding MARTA’s termination policies. 

Fifth, the Plaintiffs argue that the evidence presents contradictions as to 

whether Carson in fact violated MARTA’s rules and policies. Ferrell testified in a 

deposition that Carson was certified and capable of operating one of MARTA’s

Case: 13-14902 Date Filed: 07/25/2014 Page: 3 of 14 
4

trains, yet Carson’s termination letter stated otherwise. Additionally, Weber’s 

office assistant, Dawn Pope, stated in an affidavit that a member of the legal and 

human resource departments had told her that the Plaintiffs should not have been 

terminated because they had not disobeyed any rules. Weber also could not 

explain why Carson’s sanctions for violating MARTA’s rules far exceeded the 

required sanctions. Moreover, contradictions existed as to whether Carson had 

been cleared for duty by the time he operated a train on September 17, 2009. 

Sixth, the evidence suggests that Clark’s termination had been in error. An 

affidavit from MARTA employee Toya Kellum stated that she overheard Lee tell 

Clark to stop his investigation into Carson. Krisak later confirmed that, if Clark 

had been told to stop his investigation, such an instruction would have made a 

difference as to whether he should have been terminated. 

Finally, with regard to Clark’s claims of racial discrimination, the Plaintiffs 

argue that the district court failed to consider Weber’s “pattern and practice” of 

habitually treating African-American subordinates less favorably than white 

subordinates. 

We review the grant of summary judgment de novo. Rioux v. City of 

Atlanta, Ga., 520 F.3d 1269, 1274 (11th Cir. 2008). “When deciding whether 

summary judgment is appropriate, all evidence and reasonable factual inferences 

drawn therefrom are reviewed in a light most favorable to the non-moving party.” 

Case: 13-14902 Date Filed: 07/25/2014 Page: 4 of 14 
5

Id. at 1341-42. Once the moving party meets its burden of production, “the 

nonmoving party must present evidence beyond the pleadings showing that a 

reasonable jury could find in its favor.” Shiver v. Chertoff, 549 F.3d 1342, 1343 

(11th Cir. 2008) (quotation omitted). A mere ‘scintilla’ of evidence 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 v. Cnty. Comm'n of Jefferson 

Cnty., 446 F.3d 1160, 1162 (11th Cir. 2006) (quotation omitted). 

Title VII makes it illegal for an employer “to discriminate against any 

individual with respect to his compensation, terms, conditions, or privileges of 

employment, because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1). 

Likewise, under 42 U.S.C. § 1981, “[a]ll persons . . . shall have the same right . . . 

to make and enforce contracts . . . as is enjoyed by white citizens,” which in an 

employment context means protection against discrimination based on race and 

color. 42 U.S.C. § 1981(a); see also Standard v. A.B.E.L. Servs. Inc., 161 F.3d 

1318, 1330-34 (11th Cir. 1998). Allegations of racial discrimination brought under 

Title VII and § 1981 are analyzed using the same evidentiary requirements and 

analytical framework. See Standard, 161 F.3d at 1330.

Because the Plaintiffs concede that they relied upon circumstantial evidence, 

the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 

411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), is applicable to their race 

Case: 13-14902 Date Filed: 07/25/2014 Page: 5 of 14 
6

discrimination claims. Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 

2000) (en banc) (discussing an ADEA claim). 

Under McDonnell Douglas, a plaintiff must first establish, by a 

preponderance of the evidence, a prima facie case of discrimination. McDonnell 

Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. To prevail on a claim for racial 

discrimination under Title VII based on circumstantial evidence, an employee may 

show that: (1) he was a member of a protected class; (2) he suffered an adverse 

employment action; (3) he was qualified for the position; and (4) he was replaced 

by a person outside of his protected class or was treated less favorably than a 

similarly situated individual outside of his protected class. Maynard v. Bd. of 

Regents, 342 F.3d 1281, 1289 (11th Cir. 2003). 

If the plaintiff successfully demonstrates a prima facie case, the burden then 

shifts to the employer to produce evidence that its action was taken for a 

legitimate, non-discriminatory reason. McDonnell Douglas, 411 U.S. at 802-03, 

93 S.Ct. at 1824. In the third step of the analysis, the plaintiff must show that the 

employer’s proffered reason really is a pretext for unlawful discrimination. Id. at 

804, 93 S.Ct. at 1825. 

The inquiry into pretext requires us to view all of the evidence and 

“determine whether the plaintiff has cast sufficient doubt on the defendant’s 

proffered nondiscriminatory reasons to permit a reasonable factfinder to conclude 

Case: 13-14902 Date Filed: 07/25/2014 Page: 6 of 14 
7

that the employer’s proffered legitimate reasons were not what actually motivated 

its conduct.” Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) 

(citation omitted). Such evidence must demonstrate “weaknesses, implausibilities, 

inconsistences, incoherencies, or contradictions in the employer’s proffered 

legitimate reasons for its action that a reasonable factfinder could find them 

unworthy of credence.” Id. (quotation omitted). A plaintiff may not establish 

pretext simply by questioning the wisdom of the employer’s reason. Id. at 1543. 

Instead, he must meet the employer’s reason ‟head on” and rebut it. Wilson v. B/E 

Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir. 2004). 

A reason is not pretext for discrimination “‘unless it is shown both that the 

reason was false, and that discrimination was the real reason.’” Brooks, 446 F.3d 

at 1163 (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 

2742, 2752, 125 L.Ed.2d 407 (1993)). An employee may do that “either directly 

by persuading the court that a discriminatory reason more likely motivated the 

employer or indirectly by showing that the employer’s proffered explanation is 

unworthy of credence.” Jackson v. Ala. State Tenure Comm., 405 F.3d 1276, 1289 

(11th Cir. 2005) (quotation omitted). Ultimately, our inquiry is limited to “whether 

the employer gave an honest explanation of its behavior.” Chapman, 229 F.3d at 

1030 (quotation omitted). 

Case: 13-14902 Date Filed: 07/25/2014 Page: 7 of 14 
8

A. Carson’s Racial Discrimination Claims

Here, in light of all the evidence, the district court did not err in concluding 

that the Plaintiffs failed to demonstrate pretext as to Carson’s discrimination 

claims. See McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825; Combs, 106

F.3d at 1538. Although the Plaintiffs base their argument on a string of alleged 

contradictions in the evidence, a majority of these contradictions are irrelevant to 

whether Carson actually had violated MARTA rules and policies, and thus do not 

rebut head-on the proffered legitimate, nondiscriminatory reason for his 

termination. See Wilson, 376 F.3d at 1088; Combs, 106 F.3d at 1538. 

The only identified inconsistencies that are relevant to the Defendants’ 

reason for terminating Carson concern whether he in fact violated MARTA’s 

policies. However, none of these inconsistencies show that the proffered reason 

for his termination is unworthy of credence. See Combs, 106 F.3d at 1538. 

Finally, even if the Plaintiffs had shown that the Defendants’ proffered reason for 

the termination had been false, they failed to establish that racial discrimination 

was the real reason for his firing. See Brooks, 446 F.3d at 1163. 

B. Clark’s Racial Discrimination Claim

Here, the Plaintiffs have not challenged the district court’s conclusion that 

Clark failed to exhaust his administrative remedies with regard to the racial 

Case: 13-14902 Date Filed: 07/25/2014 Page: 8 of 14 
9

discrimination claim brought under Title VII. Hence, any challenges to the grant 

of summary judgment on Clark’s discrimination claims are limited to the count 

brought under § 1981. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 

(11th Cir. 2005) (holding that a party abandons claims that he does not argue in his 

brief). 

As to the § 1981 discrimination claim, neither of the Plaintiffs’ arguments 

has merit. First, a “pattern and practice” claim only may be brought by the 

government or a class of private plaintiffs pursuant to Federal Rule of Civil 

Procedure 23(b)(2). See Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 

964-65 (11th Cir. 2008). Second, even if the Plaintiffs’ argument with regard to 

pretext has merit, the district court had determined that the Plaintiffs failed to 

establish a prima facie case of discrimination after failing to identify any similarly 

situated employees outside of Clark’s class who had received more favorable 

treatment. Thus, the Plaintiffs did not first meet their burden regarding a prima 

facie case, nor do they challenge that matter on appeal. McDonnell Douglas, 411 

U.S. at 802, 93 S.Ct. at 1824; Maynard, 342 F.3d at 1289. 

II. Retaliation

The Plaintiffs next argue that the district court erred in granting summary 

judgment as to their Title VII and § 1981 retaliation claims. Regarding Carson’s 

claims, the Plaintiffs contend that his complaints about Weber’s routine 

Case: 13-14902 Date Filed: 07/25/2014 Page: 9 of 14 
10

discriminatory practices, as well as MARTA’s failure to address this 

discriminatory conduct, constituted what Carson would reasonably believe to be 

protected expression. Further, the court’s assumption that Carson’s termination 

had been too remote in time to his complaints is not supported by the record 

evidence. Also, an affidavit from MARTA employee Ethel Williams established 

that, after Carson had filed a 2004 complaint against Weber, Weber had stated that 

Carson would not advance any further than his current position at MARTA. 

Regarding Clark’s claims, the Plaintiffs argue that he had a good-faith belief that 

he was engaging in a statutorily protected activity when he declined to investigate 

or punish Carson, because that sanction exceeded MARTA’s rules and policies. 

Finally, the Plaintiffs argue that the Defendants’ proffered legitimate, 

nondiscriminatory reasons for their terminations were contradictory and not 

credible.1

 

 1 The response brief submitted for this appeal asserts, among other arguments, that the 

Plaintiffs’ appeal should be dismissed for failure to pay the docketing fee. However, the docket 

sheets for both our clerk’s office and the district court indicate that on November 11, 2013, the 

Plaintiffs paid the required $508, which included the $450 docketing fee, the $5 filing fee, and a 

$53 returned-items fee for a prior insufficient payment. See 11th Cir. R. 3, I.O.P.; 28 U.S.C. 

§ 1917. Accordingly, the Plaintiffs remain in compliance with Rule 3(e). See Fed.R.App.P. 3(e) 

(“Upon filing a notice of appeal, the appellant must pay the district clerk all required fees.”).

Also, in their reply brief, the Plaintiffs request a default judgment against defendant 

MARTA, as well as MARTA’s exclusion from oral argument, because MARTA failed to timely 

file a response brief. The Plaintiffs contend that the submitted response brief came only from the 

defendants named as individuals, and did not include MARTA. Even assuming, arguendo, that 

MARTA did not join in the response brief, the request for a default ruling in the Plaintiffs’ favor 

is meritless, because the only punishment MARTA could receive is losing the opportunity to be 

heard on oral argument. See Fed.R.App.P. 31(c). Also, because we have decided this appeal 

Case: 13-14902 Date Filed: 07/25/2014 Page: 10 of 14 
11

As noted above, we review the grant of summary judgment de novo. Rioux, 

520 F.3d at 1274. Title VII provides that “[i]t shall be an unlawful employment 

practice for an employer to discriminate against any of his employees . . . because 

he has opposed any practice made an unlawful employment practice by [Title VII], 

or because he has made a charge” under Title VII. 42 U.S.C. § 2000e–3(a); see 

Thompson v. North American Stainless, LP, 562 U.S. __, ___, 131 S.Ct. 863, 867, 

178 L.Ed.2d 694 (2011). Section 1981 of Title 42 also encompasses retaliation 

claims by an employee. Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 

1257-58 (11th Cir. 2012) (citation omitted). A plaintiff seeking to bring a 

retaliation claim under either statute must first establish a prima facie case by 

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

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

protected activity and the adverse action. Id. at 1258 (quotations omitted). 

To state a retaliation claim, the plaintiff need only show that he had a 

“reasonable belief” that an unlawful employment practice was occurring, and is not 

required to show that the employer actually engaged in an unlawful employment 

practice. Berman v. Orkin Exterminating Co., Inc., 160 F.3d 697, 702 (11th Cir. 

1998). A plaintiff also may establish causation by showing that the decision-

 

without the aid of oral argument, the Plaintiffs’ request to exclude MARTA from oral argument 

is moot. 

Case: 13-14902 Date Filed: 07/25/2014 Page: 11 of 14 
12

makers were “aware of the protected conduct, and that the protected activity and 

the adverse action were not wholly unrelated.” McCann v. Tillman, 526 F.3d 

1370, 1376 (11th Cir. 2008) (quotations omitted). One way to do this is to 

demonstrate that there was close temporal proximity between the two events. 

Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). However, 

a delay of three to four months is too long, as a matter of law, to prove causation. 

Id.; see also Maniccia v. Brown, 171 F.3d 1364, 1370 (11th Cir. 1999) (concluding 

that “[t]he more than 15-month period that elapsed between Appellant’s grievance 

and the alleged adverse employment actions belies her assertion that the former 

caused the latter”). 

With regard to whether an employee has engaged in a statutorily protected 

activity, an employer may not retaliate against an employee because the employee 

“has opposed any practice made an unlawful employment practice by” Title VII. 

42 U.S.C. § 2000e-3(a). Similarly, an employer may not retaliate against an 

employee because the employee “has made a charge, testified, assisted, or 

participated in any manner in an investigation, proceeding, or hearing under this 

subchapter.” Id. A complaint about an employment practice constitutes protected 

opposition only if the individual explicitly or implicitly communicates a belief that 

the practice constitutes unlawful employment discrimination. EEOC Compl. Man. 

(CCH) §§ 8-II-B(2) (2006); see also Fed. Express Corp. v. Holowecki, 552 U.S. 

Case: 13-14902 Date Filed: 07/25/2014 Page: 12 of 14 
13

389, 399, 128 S.Ct. 1147, 1156, 170 L.Ed.2d 10 (2008) (stating that the EEOC 

manual reflects “a body of experience and informed judgment to which courts and 

litigants my properly resort for guidance”). 

A. Carson’s Retaliation Claims

Here, the district court did not err in granting summary judgment as to 

Carson’s Title VII and § 1981 claims of retaliation. The court correctly concluded 

that, while Carson did file an internal complaint against Weber in 2004, it was too 

temporally remote from Carson’s termination in 2009 to establish a causal nexus. 

See Thomas, 506 F.3d at 1364. 

B. Clark’s Retaliation Claim

As with the racial discrimination claims, the Defendants have not challenged

the district court’s conclusion that Clark failed to exhaust his administrative 

remedies with regard to the retaliation claim brought under Title VII. Hence, any 

challenges to the rulings on Clark’s retaliation claims are limited to the count 

brought under § 1981. See Sepulveda, 401 F.3d at 1228 n.2. 

As to Clark’s § 1981 retaliation claim, the district court did not err in 

granting summary judgment. Nothing in the record indicates that Clark either 

halted his investigation into Carson’s alleged violations of radio-transmission 

policies, or forwarded the e-mail to Carson related to that investigation, in an effort 

Case: 13-14902 Date Filed: 07/25/2014 Page: 13 of 14 
14

to oppose MARTA’s unlawful employment practices. See 42 U.S.C. § 2000e-3(a); 

Gate Gourmet, 683 F.3d at 1258.

III. Conclusion

For the reasons stated above, the district court did not err in granting 

summary judgment as to all claims brought by the Plaintiffs, and we affirm. 

AFFIRMED.2

 

 2 Appellees’ Motion to File Appendix Out of Time is DENIED.

Case: 13-14902 Date Filed: 07/25/2014 Page: 14 of 14