FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUGUST 4, 2010

JOHN LEY

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

 

No. 09-14063

 

D. C. Docket No. 07-02086-CV-T-33-EAJ

NATIKA GANT,

Plaintiff-Appellant,

versus

KASH’N KARRY FOOD STORES, INC.,

d.b.a. Sweetbay Supermarket,

Defendant-Appellee.

 

Appeal from the United States District Court

for the Middle District of Florida

 

(August 4, 2010)

Before DUBINA, Chief Judge, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
Natika Gant, a black female, appeals from the district court’s grant of

summary judgment in favor of her former employer, Kash N’ Karry Food Stores,

Inc., d/b/a Sweetbay Supermarket (“Sweetbay”), in her employment discrimination

suit under 42 U.S.C. § 1981 (“§ 1981"), Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e-3, (“Title VII”), and the Florida Civil Rights Act of 1992, Fla.

Stat. § 760.10(7) (“FCRA”). Evidence before the district court showed that Gant,

a customer service manager, complained to several Sweetbay managers following

an incident in which she alleged that Robert Price, an evening manager, told her

that he could not “stand ghetto black niggers.” When she complained about

Price’s use of the word “nigger,” she believed that he also had made several

comments to black associates referencing the “ghetto,” told a black associate that

he would fit in at the MLK store as a result of his hair style, and told an associate

to watch a black customer he thought would steal, when he had previously refused

to do anything about two white customers who were obviously stealing.

While Sweetbay had a policy prohibiting race discrimination, the company

also required that information obtained during an investigation be treated as

confidential. Sweetbay fired Gant less than a month after she complained about

Price, stating that it was doing so because she disclosed one or more incidents with

Price to two other managers in violation of the company’s confidentiality policy.

2
Gant originally asserted race discrimination and harassment claims as well

as retaliation claims, but at her request, the district court dismissed the race

discrimination and harassment claims. When it granted summary judgment in

1

favor of Sweetbay on her remaining retaliation claims, the district court found that

Gant did not establish a prima facie case of retaliation because, even assuming

that Price did everything Grant alleged, she did not have an objectively reasonable

belief that she was engaged in protected activity. The court made an alternative

finding that even if she had established a prima facie case, Sweetbay proffered a

legitimate, non-retaliatory reason for her termination – her violation of the

company’s confidentiality policy – and Gant did not establish that this proffered

reason was a pretext for discrimination.

On appeal, Gant challenges both of these determinations and points to

several factual inconsistencies that she claims establish that the asserted reason for

her termination was pretextual.

I.

Gant does not challenge the dismissal of her race discrimination and harassment claims on

1

appeal; therefore, she has abandoned any argument with respect to those claims. See United States

v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998) (noting that when an appellant fails to offer

argument on an issue, that issue is abandoned).

3
We review de novo the district court’s order granting summary judgment. 

Little v. United Technologies, 103 F.3d 956, 959 (11th Cir. 1997). Summary

judgment should be granted where there is no genuine issue of material fact. Fed.

R. Civ. P. 56(c). Thus where the record as a whole could not lead a rational trier

of fact to find for the nonmoving party, there is no genuine issue of fact for trial. 

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct.

1348, 1356, 89 L. Ed. 2d 538 (1986). The record and all of the inferences should

be viewed in the light most favorable to the nonmoving party. Id. at 587-88, 106

S. Ct. at 1356-67.

II.

Title VII prohibits retaliation against an employee because that employee

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

or 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). 

Section 1981 also prohibits retaliation on the basis of race, even though the statute

is silent on that cause of action. CBOCS West v. Humphries, 553 U.S. ___, 128 S.

Ct. 1951, 1961, 170 L. Ed. 2d 864 (2008). Claims under both § 1981 and the

FCRA are analyzed under the same framework as Title VII. Standard v. A.B.L.E.

4
Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) (§ 1981); Harper v. Blockbuster

Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998) (FCRA).

To state a prima facie case for retaliation, the plaintiff must show that (1)

she participated in a protected activity; (2) her employer subjected her to an act

that would have been materially adverse to a reasonable employee, and (3) a

casual connection exists between the protected activity and the adverse

employment decision. Burlington Northern & Santa Fe Ry. Co., 548 U.S. 53, 68,

126 S. Ct. 2405, 2415, 165 L. Ed. 2d 345 (2006) (announcing “materially adverse”

element); Olmstead v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998)

(setting forth prima facie test pre-Burlington Northern). To engage in protected

activity, the plaintiff usually must not only show that “[s]he subjectively (that is, in

good faith) believed that [her] employer was engaged in unlawful employment

practices, but also that [her] belief was objectively reasonable in light of the facts

and record presented.” Little, 103 F.3d at 960 (emphasis in original).

Once the plaintiff establishes a prima facie case of retaliation, the employer

should come forward with “a legitimate, non-retaliatory reason” for its materially

adverse action. Olmstead, 141 F.3d at 1460. However, the “plaintiff bears the

ultimate burden of proving by a preponderance of the evidence that the reason

provided by the employer is a pretext for prohibited, retaliatory conduct.” Id. To

5
satisfy that burden, “the 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,

Meadowcraft, Inc., 106 F.3d 1519, 1528 (11th Cir. 1997).

Where an employer fires an employee “under the mistaken but honest

impression that the employee violated a work rule,” the employer generally is not

liable for discriminatory conduct. Damon v. Fleming Supermarkets, Inc., 196 F.3d

1354, 1363 n.3 (11th Cir. 1999). However, the plaintiff can show that the

employer’s justification is pretextual by submitting evidence (1) that she did not

violate the cited work rule, or (2) that if she did violate the rule, other employees

outside the protected class, who engaged in similar acts, were not similarly treated. 

Alphin v. Sears, Robuck & Co., 940 F.2d 1497, 1501 n.1 (11th Cir. 1991) (citation

omitted).

Even if we assume that Gant met her burden of establishing that she

engaged in protected activity and otherwise made out a prima facie case, she did

not establish pretext. Gant did not provide any evidence that her district manager,

Dave Gamble, did not honestly believe that she had violated the confidentiality

policy when he terminated her. Moreover, even if the director of Human

6
Resources, Debra Petitti, may have incorrectly represented to Gamble that the

company had fired people in the past for the same transgression, that would not

undermine the conclusion that Gamble honestly believed that Gant violated the

confidentiality policy and could be terminated for that violation. Therefore, even

if Gamble was incorrect in his belief that she was told or otherwise knew about the

policy, that was not sufficient to establish pretext. See Damon, 196 F.3d at 1363

n.3.

Moreover, we conclude from the record that Gant did not directly rebut the

basis for firing her, i.e., her violation of the confidentiality policy, because she

admitted telling two other managers about her allegations regarding Price. 

Finally, she did not provide any evidence of other employees who violated the

confidentiality policy and were not fired for it. Indeed, the evidence established

that no other employees have violated the policy at issue. Therefore, any factual

inconsistencies regarding Gant’s knowledge of the confidentiality policy were not

material, and the district court did not err in granting summary judgment in favor

of Sweetbay on Grant’s retaliation claims. Accordingly, we affirm the district

court’s grant of summary judgment.

AFFIRMED.

 

7