FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 26, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 09-15332

Non-Argument Calendar

________________________

D. C. Docket No. 08-00693-CV-CAM-1

STANLEY MUHAMMAD,

Plaintiff-Appellant,

versus

AUDIO VISUAL SERVICES GROUP,

d.b.a. Presentation Services,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(May 26, 2010)

Before BLACK, PRYOR and FAY, Circuit Judges.

PER CURIAM:
Stanley Muhammad, proceeding pro se, appeals from the district court’s

grant of summary judgment in favor of his former employer, Audio Visual

Services Group (“AVSG”), as to his claims for race discrimination and retaliation,

which were brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-2(a) and (3)(a). On appeal, Muhammad argues that AVSG’s failure to pay

him the amount of overtime pay that he requested amounted to race discrimination.

Muhammad asserts that, during discovery, AVSG failed to produce its March 2006

payroll roster. He argues that this document would have demonstrated that he was

the victim of race discrimination.

In addition, Muhammad argues that the district court erred by granting

summary judgment in AVSG’s favor as to his retaliation claim, which was based

on AVSG’s termination of his employment. He argues that AVSG’s proffered

reasons for his termination—his alleged threat against an AVSG manager and his

aggressive demeanor during a telephone call—were false, and constituted a mere

pretext for retaliation. In support of this argument, he asserts that Peggy Myers,

AVSG’s Senior Regional Director for Human Resources, told the Georgia

Department of Labor (“DOL”) that there was no reason for his termination. In his

reply brief, Muhammad attaches an unlabelled and unsigned document, which, he

contends, constitutes evidence that a DOL employee interviewed Myers, and that

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Myers stated that there was no reason for Muhammad’s termination. Muhammad

also relies on the Equal Employment Opportunity Commission’s (“EEOC”)

determination that it was reasonable to conclude that AVSG had retaliated against

him.

For the reasons set forth below, we affirm.

I.

Through counsel, Muhammad, who is African-American, filed a complaint

alleging that AVSG terminated him in violation of his rights under Title VII of the

Civil Rights Act of 1964. In his complaint, Muhammad alleged that he had

worked on a part-time basis for AVSG as an audio-visual technician. He further

alleged that, on March 21, 2006, he learned that his overtime pay rate, which

previously had been approved by an AVSG regional director, had been reduced

due to his race. Muhammad asserted that, after he complained about this

discriminatory treatment, AVSG terminated him on March 27, 2006. Muhammad

alleged that these events demonstrated that AVSG had discriminated against him

on the basis of his race, and had retaliated against him for engaging in activity that

is protected under Title VII. Based on these events, Muhammad had filed charges

with the EEOC on March 29, 2006, ultimately receiving a notice of his right to sue.

Near the beginning of the discovery period, the magistrate judge ordered that

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a discovery request “must be served sufficiently in advance (usually thirty (30)

days) of the deadline for responses to be made within the discovery cut-off date.”

The parties and the court agreed that the discovery period would end on November

3, 2008. The parties’ exhibits reflect that, in his interrogatories and document

requests, Muhammad did not request that AVSG produce a copy of the freelanceemployee payroll roster for the pay period ending on March 17, 2006.

Muhammad’s exhibits included, however, an email dated December 4, 2008, in

which Muhammad stated that he was “still waiting” for AVSG to produce its

payroll roster for March 2006.

After the end of the discovery period, AVSG filed a motion for summary

judgment as to both of Muhammad’s claims. It supported its motion with a

statement of material facts, exhibits, and deposition testimony. These statements,

depositions, and exhibits demonstrated the following undisputed facts. AVSG was

in the business of providing audio and visual services to clients holding business

meetings or presenting large-scale productions. AVSG held a contract with the

Westin Peachtree Hotel in Atlanta, Georgia, to provide audio-visual services to the

hotel and its guests. In order to satisfy this contract and similar contracts, AVSG

employed “as-needed,” or freelance, employees. Muhammad began working at the

Westin in 2005 as a freelance employee. At that time, Jose Martinez was AVSG’s

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Director at the Westin, and William Parsons was AVSG’s Director of Sales at the

Westin. The hourly rate that Muhammad would receive for providing audio-visual

services was to be negotiated between himself and Martinez.

According to Muhammad’s deposition testimony, he and Martinez agreed

that he would receive overtime pay at the rate of 1.5 times what he earned during a

regular work hour. They further agreed that he would receive overtime pay after

he worked 10 hours in a single day, as well as when he worked over 40 hours in a

week. As a result, if Muhammad worked 12 hours on four days during a week, he

would receive overtime pay for two hours on each of the four days that he worked.

In addition to this overtime pay, he would also receive eight hours of overtime pay

for the work week.

In his deposition, Parsons testified that, during March 2006, he assumed

temporary responsibility for the duties formerly performed by Martinez, including

duties related to the payment of freelance audio-visual employees such as

Muhammad. In preparing the payroll for freelance employees for the pay period

ending on March 17, Parsons learned that there were discrepancies in the overtime

pay rates being received by Muhammad and other freelance employees. Parsons

believed that AVSG paid overtime rates only where an employee worked more

than 40 hours in a week, and did not also pay overtime rates where an employee

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worked more than 10 hours in a day. Because he believed that the overtime rates

that Muhammad and other employees were receiving did not comply with this

policy, Parsons contacted Stewart Young, AVSG’s Regional Vice President for the

Atlanta Hotel Division. Young asked Parsons to forward the payroll information

to him.

In his deposition, Young testified that, when he received the payroll

information from Parsons, he discovered that Muhammad, Mark Spikes, and Jason

Porter, all of whom were black, were being paid overtime pay that was calculated

in an “overtime on top of overtime” manner that was inconsistent with AVSG

policy. Young considered this overtime pay calculation to be improper, because it

resulted in an employee being paid at a rate that was in excess of the value of his

work. Young was not aware that some employees had been receiving overtime pay

calculated in this manner until he reviewed the March 17, 2006, payroll roster.

After reviewing the March 17 payroll roster, Young contacted AVSG’s payroll

department, and asked it to hold Muhammad’s, Porter’s, and Spikes’s checks until

their correct overtime pay rate was determined.

Myers also provided deposition testimony in this case. Myers testified that,

on March 23, 2006, Muhammad called her to complain about Young’s decision

regarding his overtime pay. Myers stated that, “During the conversation, Mr.

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Muhammad became very upset, had raised his voice, was very angry about the fact

that he hadn’t been paid his overtime properly in his mind. And he said that

[Young] would have to bear the brunt of any result of us not paying him.” Myers

interpreted this statement as a threat against Young. Later that day, Myers decided

to seek Muhammad’s termination. After speaking with her supervisor about her

concerns arising from Muhammad’s telephone call, Myers received permission to

terminate Muhammad. Myers stated that she had terminated Muhammad based on

his “demeanor during the [March 23] conversation and based on the threat.” She

explained that Muhammad’s tone during the March 23 conversation was

“threatening” and “aggressive.” When asked whether there was any reason for

terminating Muhammad apart from his alleged threat, Myers stated, “[I]t was the

threat in addition to the demeanor during the discussion and the demeanor in the

communication.” On March 27, 2006, Myers informed Muhammad that AVSG

had terminated his employment.

Regarding his termination, Muhammad testified that, when he contacted the

payroll department to inquire about his delayed check, the department informed

him that his overtime pay rate had been changed. Muhammad discussed this

change with Young and, according to Muhammad, Young agreed that

Muhammad’s pending paycheck would include overtime pay at the rate that he had

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agreed upon with Martinez. When Muhammad received his paycheck, however, it

included overtime pay calculated under the new, reduced pay rate. Muhammad

further testified that he complained to Myers that Young had mistreated him and

other black employees by unfairly reducing their overtime pay rates. Muhammad

asked Myers “to look into” Young’s treatment of black employees. Muhammad

denied that he made a threat against Young during his conversation with Myers, or

that he made a statement indicating that Young would bear the “brunt” of the

consequences of his decision to reduce Muhammad’s overtime pay. Muhammad

acknowledged, however, that he was “passionate” during the March 23 telephone

conversation, and that he spoke to Myers with “strong emphasis.” He asked Myers

to “pardon [his] passion,” because his tone with her had been “very passionate.”

On the Monday following March 23, Muhammad again called Myers, and Myers

informed him that AVSG had “decided to no longer use his services.”

AVSG’s exhibits that it submitted in support of its motion for summary

judgment included its payroll roster for freelance employees during the pay period

beginning on March 11, 2006, and ending on March 17, 2006. This roster showed

the work hours reported for numerous freelance employees, including Muhammad,

Spikes, and Porter. During his deposition testimony, Muhammad identified one of

AVSG’s exhibits as AVSG’s payroll roster for freelance employees for the pay

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period ending on March 17, 2006. He stated that he knew that every employee on

the March 17 payroll roster, with the exception of Jason Patrick, was black. At the

time of his deposition, Muhammad was not aware of Patrick’s race. In one of his

exhibits, however, Muhammad identified Patrick’s race as black.

Muhammad filed a response opposing summary judgment, which he

supported with a brief, a statement of disputed facts, and exhibits. Muhammad’s

exhibits included the affidavit of James Beattie, who averred that his race was

white, and that AVSG had employed him as a freelance worker. Beattie further

averred that, during March 2006, AVSG had employed him to provide audio-visual

labor at the Westin Hotel. Beattie stated that, “[d]uring [his] freelance employment

with [AVSG], [his] agreed upon/contracted rate per job was never changed without

[his] permission.” Beattie did not state whether he had worked during the pay

period ending on March 17, 2006. Beattie also did not state whether he had

received overtime pay that was calculated based on an “overtime on top of

overtime” method.

One of Muhammad’s exhibits was an excerpt from the deposition testimony

of Spikes, another freelance AVSG employee. Spikes testified that he had not

complained to AVSG about the reduction in overtime pay rates because he “didn’t

want to be retaliated against.” He did not explain why he had believed that AVSG

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would retaliate against him if he complained about his overtime pay.

Muhammad’s exhibits also included a document entitled “Georgia

Department of Labor Claims Examiner’s Determination.” This document

informed Muhammad that he was considered to be eligible for unemployment

benefits. In a section entitled “Reasoning,” the DOL stated, in relevant part, “You

were fired and no specific reason was given to you.” At the bottom of the

document, the date of April 14, 2006, was designated as the “date of interview.”

The document did not indicate who had been interviewed on that date. In addition,

this document did not state whether a DOL representative had actually spoken with

an AVSG employee regarding Muhammad’s termination. The parties’ exhibits do

not include any additional evidence indicating whether the DOL contacted AVSG

or Myers. Although Muhammad, in his deposition testimony, stated that Myers

told a DOL unemployment investigator that there was no reason for his

termination, he did not explain how he had personal knowledge of whether a DOL

investigator had spoken with Myers.

Muhammad’s exhibits further included a copy of the EEOC’s determination

of the merits of his race discrimination and retaliation claims. The EEOC stated

that the evidence did not establish that Muhammad was denied wages, suspended,

or discharged due to his race. Regarding Muhammad’s retaliation claim, the

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EEOC stated:

The investigation did reveal, however, that four (4) days after

[Muhammad] complained about his wages, he was suspended and

later discharged. Respondent’s explanation for [Muhammad’s]

suspension and subsequent discharge is pretextual, and does not

withstand scrutiny. Therefore, it is reasonable to conclude that

[Muhammad] was suspended and discharged in retaliation for having

opposed unlawful employment practices in violation of Title VII.

The EEOC did not set forth any additional facts or reasoning in support of its

conclusion regarding Muhammad’s retaliation claim.

In addition to filing exhibits in support of his opposition to summary

judgment, Muhammad also filed a brief. In his brief, Muhammad argued that

AVSG’s motion for summary judgment was not ripe because it had failed to

produce its payroll roster for March 2006. Muhammad asserted that he had

requested that AVSG provide him with this document, and that this document

would be probative of the pay rates received by black and white freelance

employees. Muhammad further argued that he had established a prima facie case

of race discrimination because AVSG had reduced the overtime pay rates only of

black employees. Muhammad pointed out that Beattie, a white AVSG freelance

employee, had executed an affidavit averring that AVSG did not alter his pay rate

without his permission.

In his brief, Muhammad also argued that he had established a prima facie

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case of retaliation because he had believed that his complaint to Myers about the

discriminatory overtime pay rate constituted protected activity under Title VII.

Muhammad contended that the question of whether AVSG had articulated a

legitimate, non-discriminatory reason for his termination constituted a disputed

issue of fact. Muhammad asserted that he did not make a threat during his

conversation with Myers. In addition, he asserted that, when the DOL requested

that Myers provide a reason for Muhammad’s termination, she did not provide the

DOL with a reason. As evidence of this, Muhammad relied on his own testimony

and the DOL’s notice that he was entitled to unemployment benefits. Muhammad

contended that, due to Myers’s failure to provide a reason for Muhammad’s

termination to the DOL, the EEOC concluded that AVSG had retaliated against

him. Based on this evidence, Muhammad argued, a jury could determine that

AVSG’s proffered reason for his termination was a mere pretext for retaliation.

In the report and recommendation, the magistrate recommended that the

district court grant AVSG’s motion for summary judgment. The magistrate found

that Muhammad’s ripeness argument lacked merit because he did not point to any

documents indicating that he had requested that AVSG produce its March 2006

payroll roster, nor had he filed a motion to compel the production of this evidence.

In addition, the magistrate determined that Muhammad had failed to explain how

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this evidence would demonstrate that summary judgment was not appropriate.

Addressing the merits of Muhammad’s race discrimination claim, the

magistrate found that he had failed to establish a prima facie case because he did

not point to a white employee who was permitted to receive overtime pay

calculated based on an “overtime on top of overtime” method. Accordingly, the

magistrate concluded that the court should grant summary judgment in favor of

AVSG as to Muhammad’s race discrimination claim.

The magistrate also found that Muhammad had failed to establish a prima

facie retaliation claim. Because Muhammad alleged that AVSG retaliated against

him before he filed a formal charge with the EEOC, the magistrate found that

Muhammad’s retaliation claim was brought under Title VII’s opposition clause,

rather than the participatory clause. As a result, the magistrate determined that

Muhammad was required to show that, at the time he voiced his complaint to

Myers, he held an objectively reasonable good faith belief that AVSG had engaged

in unlawful discrimination. The magistrate found that Muhammad’s belief that he

was the victim of discrimination was not objectively reasonable, because he was

not aware of any white employee who received overtime pay calculated based on

the “overtime on top of overtime” method. The magistrate further found that, even

assuming that Muhammad had established a prima facie retaliation case, AVSG

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had articulated a legitimate, non-discriminatory reason for his termination because

Myers had requested Muhammad’s termination based on his angry demeanor and

his threat against Young.

Having determined that AVSG had articulated a legitimate, nondiscriminatory reason for Muhammad’s termination, the magistrate went on to find

that none of the facts that Muhammad had pointed to in his brief demonstrated that

AVSG’s proffered reason for his termination was pretextual. Specifically, the

magistrate determined that the DOL’s statement regarding unemployment benefits

was not evidence of pretext because it reflected only that Muhammad did not

provide the DOL with a reason for his termination, and did not show that AVSG

had failed to provide the DOL with a reason for Muhammad’s termination.

Regarding the EEOC’s determination, the magistrate found that the court was not

required to defer to the EEOC’s finding in deciding summary judgment.

Moreover, the magistrate stated, the EEOC’s finding in this case was conclusory,

and thus failed to create a genuine issue of material fact regarding pretext.

Accordingly, the magistrate concluded that the court should grant summary

judgment in favor of AVSG as to Muhammad’s retaliation claim.

Shortly after the magistrate entered the report and recommendation, counsel

for Muhammad withdrew from the case. Muhammad, proceeding pro se, filed

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objections to the report and recommendation.

In his objections, Muhammad argued that AVSG’s alleged refusal to provide

him with the payroll roster for the pay period ending on March 17, 2006,

constituted circumstantial evidence of race discrimination. Muhammad also

argued that he was terminated in retaliation for opposing race discrimination.

Relying on the DOL’s letter, Muhammad asserted that Myers did not provide the

DOL with a reason for his termination. In an amendment to his objections,

Muhammad specifically asserted that the DOL had asked Myers why Muhammad

was terminated during a telephone conversation that took place on April 14, 2006.

Muhammad did not cite to any evidence in support of this contention.

The district court overruled Muhammad’s objections and adopted the

magistrate’s report and recommendation. The court determined that Muhammad’s

primary objection to the report and recommendation was the magistrate’s reliance

on Myers’s testimony in finding that there was no merit to his retaliation claim.

The court, however, found that it was undisputed that Myers had honestly believed

that Muhammad’s demeanor during the March 23 telephone call was

“threatening.” The court also found that Myers had sought Muhammad’s

termination based not only on his alleged threat against Young, but also based on

his inappropriate tone. Accordingly, the court concluded that AVSG had presented

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a legitimate, non-discriminatory reason for Muhammad’s termination, which

Muhammad had failed to rebut. In addition, the court determined that summary

judgment was appropriate as to Muhammad’s race discrimination claim because he

had failed to show that he was treated differently from a similarly situated

comparator. Accordingly, the court entered summary judgment in favor of the

DOC.

II.

We review the district court’s ruling on summary judgment de novo. Rojas

v. Florida, 285 F.3d 1339, 1341 (11th Cir. 2002). The moving party is entitled to

summary judgment “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Fed.R.Civ.P. 56(c). “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.”

Rojas, 285 F.3d at 1341-42 (quotation omitted). We liberally construe a pro se

litigant’s pleadings. Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990).

Title VII provides “that it is unlawful for an employer to discriminate

against any individual with respect to his compensation, terms, conditions, or

16
privileges of employment, because of such individual’s race, color, religion, sex, or

national origin.” Holifield v. Reno, 115 F.3d 1555, 1561 (11th Cir. 1997)

(quotation omitted). A plaintiff may rely on circumstantial evidence to establish a

prima facie case of discrimination. Id. at 1561-62. When relying on circumstantial

evidence to support his claim, a plaintiff may demonstrate a prima facie case of

discrimination by showing that: “(1) he belongs to a [protected class]; (2) he was

subjected to [an] adverse job action; (3) his employer treated similarly situated

employees outside his classification more favorably; and (4) he was qualified to do

the job.” Id. at 1562. “To make a comparison of the plaintiff’s treatment to that of

non-minority employees, the plaintiff must show that he and the employees are

similarly situated in all relevant respects.” Id. If a plaintiff cannot identify a

similarly situated comparator who was treated more favorably than himself, then

“summary judgment is appropriate where no other evidence of discrimination is

present.” Id.

Here, the district court did not err in granting summary judgment in AVSG’s

favor as to Muhammad’s race discrimination claim, because Muhammad failed to

demonstrate a prima facie case of race discrimination. Muhammad failed to point

to a white employee who received overtime pay calculated based on an “overtime

on top of overtime” method. In addition, he failed to demonstrate that Young

17
knowingly permitted any employee, white or black, to receive overtime pay

calculated in this manner. While Young reduced the overtime pay of only black

freelance employees, the record also shows that no white freelance employees

worked during the pay period ending on March 17, 2006. Beattie’s affidavit did

not prove otherwise, since Beattie did not state that he worked during the pay

period ending on March 17, 2006, or received overtime pay calculated based on an

“overtime on top of overtime” method. Accordingly, Muhammad failed to point to

a similarly situated white comparator who was treated more favorably than

himself.

Moreover, Muhammad also failed to point to additional evidence giving rise

to an inference of discrimination. While he emphasizes that AVSG allegedly

failed to provide him with the payroll roster for the pay period ending on March

17, 2006, this argument lacks merit. Muhammad’s interrogatories did not include

a request that AVSG produce this document. While Muhammad’s exhibits

included an email to AVSG’s counsel stating that he was waiting for them to

produce this document, this email was dated December 4, 2008, well after the

discovery period ended on November 3, 2008. Moreover, AVSG included this

document in the exhibits that it filed in support of its motion for summary

judgment, and Muhammad identified and discussed this document during his

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deposition testimony. The March 17, 2006, payroll roster did not indicate that any

white freelance employees worked during that period, or were permitted to receive

overtime pay calculated based on an “overtime on top of overtime” method.

Accordingly, there is no evidence that AVSG concealed this document from

Muhammad, or that the information in this document created a genuine issue of

material fact regarding Muhammad’s race discrimination claim.

III.

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

employee because “he has opposed any practice made an unlawful employment

practice [under 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); E.E.O.C. v. Total System Services, Inc., 221 F.3d

1171, 1174 (11th Cir. 2000). The statute’s participation clause “protects

proceedings and activities which occur in conjunction with or after the filing of a

formal charge with the EEOC.” Total System Services, Inc., 221 F.3d at 1174. The

opposition clause, on the other hand, protects activity that occurs before the filing

of a formal charge with the EEOC, such as submitting an internal complaint of

discrimination to an employer, or informally complaining of discrimination to a

supervisor. See id.; see also Rollins v. State of Fla. Dep’t of Law Enforcement, 868

19
F.2d 397, 400 (11th Cir. 1989).

In order to establish a prima facie case of retaliation, the plaintiff may show

that: (1) he engaged in statutorily protected expression; (2) he suffered an adverse

employment action; and (3) there is some causal relationship between the two

events. Holifield, 115 F.3d at 1566. Where a plaintiff is proceeding under the

opposition clause, “the plaintiff need not prove the underlying claim of

discrimination which led to [his] protest.” Tipton v. Canadian Imperial Bank of

Commerce, 872 F.2d 1491, 1494 (11th Cir. 1989). Nevertheless, the plaintiff must

show that he held a reasonable good faith belief that the discrimination existed. Id.

In order to demonstrate that he held a reasonable, good faith belief that

discrimination occurred, the plaintiff must show not only that he subjectively

believed that his employer’s behavior was discriminatory, “but also that his belief

was objectively reasonable in light of the facts and record presented.” Butler v.

Alabama Dep’t of Transp., 536 F.3d 1209, 1213 (11th Cir. 2008). “The objective

reasonableness of an employee’s belief that [his] employer has engaged in an

unlawful employment practice must be measured against existing substantive law.”

Clover v. Total System Services, Inc., 176 F.3d 1346, 1351 (11th Cir. 1999).

“Where binding precedent squarely holds that particular conduct is not an unlawful

employment practice by the employer, and no decision of this Court or of the

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Supreme Court has called that precedent into question or undermined its reasoning,

an employee’s contrary belief that the practice is unlawful is unreasonable.”

Butler, 536 F.3d at 1214.

“Once the plaintiff establishes his prima facie case, the employer must

proffer a legitimate, non-discriminatory reason for the adverse employment

action.” Holifield, 115 F.3d at 1566. This burden is “exceedingly light.” Meeks v.

Computer Assoc. Int’l, 15 F.3d 1013, 1021 (11th Cir. 1994). “If the employer

offers legitimate reasons for the employment action, the plaintiff must then

demonstrate that the employer’s proffered explanation is a pretext for retaliation.”

Holifield, 115 F.3d at 1566. In order to demonstrate pretext, “[t]he plaintiff must

meet the reason proffered head on and rebut it.” Crawford v. City of Fairburn,

Ga., 482 F.3d 1305, 1308 (11th Cir. 2007).

In assessing the merits of a plaintiff’s claims under Title VII, a court is not

required to defer to the EEOC’s determination of the merits of the claim. Moore v.

Devine, 767 F.2d 1541, 1549-51 (11th Cir.1985), modified on reh’g, 780 F.2d

1559, 1560 (11th Cir.1986); see also Price v. Federal Exp. Corp., 283 F.3d 715,

719, 725 (5th Cir. 2002). Instead, the court must conduct a de novo review of the

claims. Moore, 767 F.2d at 1550-51. “[W]hile EEOC findings in general may be

significant evidence, their probative force in individual cases varies considerably

21
and is left to the determination of the trial court.” Id. (quotation omitted).

Here, the district court did not err in granting summary judgment in AVSG’s

favor as to Muhammad’s retaliation claim. Because Muhammad alleged that

AVSG retaliated against him before he filed a charge with the EEOC, the

magistrate correctly determined that his retaliation claim fell under the opposition

clause, and that Muhammad was thus required to show that he held a reasonable,

good faith belief that unlawful discrimination had occurred. Muhammad failed to

show that he held an objectively reasonable belief that AVSG had engaged in race

discrimination. As discussed in the previous section, we have recognized that a

black plaintiff may show that his employer engaged in race discrimination by

pointing to a similarly situated white comparator that was treated more favorably

than he was treated, or by pointing to additional evidence giving rise to an

inference of discrimination. As noted above, Muhammad had no evidence that

white employees were treated more favorably than black employees regarding their

overtime pay rates, and was aware of no other credible evidence of race

discrimination. Due to this lack of evidence, Muhammad’s belief that race

discrimination had occurred was not objectively reasonable when viewed in light

of our precedent addressing race discrimination claims. Because Muhammad did

not hold an objectively reasonable belief that AVSG had engaged in race

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discrimination, he failed to make a prima facie showing of retaliation.

Moreover, even assuming that Muhammad could demonstrate a prima facie

retaliation claim, AVSG articulated a legitimate reason for his termination.

Accepting as true Muhammad’s testimony that he did not articulate a threat during

his conversation with Myers, he admitted that his demeanor during this

conversation was passionate, and he did not contest that Myers found his tone and

demeanor to be offensive. Accordingly, AVSG has met its “exceedingly light”

burden of articulating a legitimate reason for Muhammad’s termination—his tone

and demeanor during his March 23 telephone conversation with Myers, which she

perceived to be offensive. 

Muhammad failed to demonstrate that this reason was a mere pretext for

retaliation. Although Muhammad testified during his deposition that Myers told a

DOL representative that there was no reason for his termination, he did not explain

how he had personal knowledge of this matter. The DOL’s determination

regarding Muhammad’s unemployment benefits does not indicate that a DOL

representative contacted AVSG about Muhammad’s termination. In addition, the

document that Muhammad has attached to his reply brief, which, he asserts,

constitutes evidence that Myers spoke with a DOL representative, was not

submitted to the district court. Even assuming that we properly could consider this

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document on appeal, this document does not indicate that it was generated by the

DOL. While Muhammad also relies on the EEOC’s determination that he was the

victim of retaliation, the district court was required to conduct a de novo review of

the merits of Muhammad’s claims, and was not required to defer to the EEOC’s

conclusion as to his retaliation claim. Moreover, the EEOC did not provide facts

or reasoning in support of its conclusion. As a result, the court did not err by

failing to attribute significant probative value to the EEOC’s determination. Thus,

even assuming that Muhammad could demonstrate a prima facie claim of

retaliation, his evidence does not demonstrate that AVSG’s proffered reason for his

termination was pretextual, and the court did not err in granting summary judgment

as to this claim.

AFFIRMED.

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