Filed: Feb. 27, 2015
Latest Update: Mar. 02, 2020
Summary: Case: 11-14213 Date Filed: 02/27/2015 Page: 1 of 24 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 11-14213 _ D.C. Docket No. 3:10-cv-00350-MEF-TFM CLAUDE R. SHORT, Plaintiff-Appellant, versus MANDO AMERICAN CORPORATION, Defendant-Appellee. _ Appeal from the United States District Court for the Middle District of Alabama _ (February 27, 2015) Before ED CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges. PER CURIAM: Case: 11-14213 Date Filed: 02/27/20
Summary: Case: 11-14213 Date Filed: 02/27/2015 Page: 1 of 24 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 11-14213 _ D.C. Docket No. 3:10-cv-00350-MEF-TFM CLAUDE R. SHORT, Plaintiff-Appellant, versus MANDO AMERICAN CORPORATION, Defendant-Appellee. _ Appeal from the United States District Court for the Middle District of Alabama _ (February 27, 2015) Before ED CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges. PER CURIAM: Case: 11-14213 Date Filed: 02/27/201..
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Case: 11-14213 Date Filed: 02/27/2015 Page: 1 of 24
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-14213
________________________
D.C. Docket No. 3:10-cv-00350-MEF-TFM
CLAUDE R. SHORT,
Plaintiff-Appellant,
versus
MANDO AMERICAN CORPORATION,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(February 27, 2015)
Before ED CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges.
PER CURIAM:
Case: 11-14213 Date Filed: 02/27/2015 Page: 2 of 24
This is an employment discrimination case brought under Title VII of the
Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000 et seq., 42 U.S.C. § 1981
(§ 1981), and state tort law. It began on April 22, 2010, when Claude Short filed a
seven-count complaint against his former employer, Mando American
Corporation. On September 6, 2011, the District Court entered a final judgment
pursuant to a jury verdict on one of Short’s § 1981 claims and summary judgment
on the remaining claims. Short appeals the judgment based on the jury verdict,
arguing that trial errors warrant a new trial. He appeals the summary judgment to
the extent that it decided his Title VII and § 1981 claims of racial discrimination,
national origin discrimination, and retaliation. According to Short, Mando
demoted him and eventually discharged him on account of his race (white) and his
national origin (American), and because he exercised his Title VII and § 1981
rights to oppose Mando’s employment policies as discriminatory.
I.
Mando manufactures, assembles, and sells automotive parts. Its main
customers are the Big Three automakers — General Motors, Chrysler, and Ford —
with General Motors being its largest customer. Mando’s headquarters and
manufacturing plant are located in Opelika, Alabama. The company’s customer-
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support center is located in the Detroit suburb of Plymouth, Michigan, near the
main offices of the Big Three.
In August 2006, Mando hired Short, a white male born and raised in the
United States, as “Quality Director” 1 of its Opelika plant. Short joined Mando
after retiring from his job as a quality specialist at General Motors. Mando paid
Short an annual salary of $130,000 to direct the operations of Mando’s Quality
Department. The department was responsible for (1) addressing supplier quality,
which meant communicating with suppliers to resolve problems with component
parts and to seek refunds from suppliers when necessary; (2) addressing problems
in production; (3) addressing problems with customers after Mando delivered its
products; and (4) maintaining the accurate and complete data necessary to support
the first three tasks. From 2004 until Short’s hire in August 2006, Nosuk Ha, a
Korean citizen of Korean origin, led the Quality Department. Ha stayed in the
Quality Department for two months after Short took over to help transition Short
into the position. By October 2006, Short had transitioned fully into his role, and
Ha moved on to his new position as General Manager of Production Engineering (a
role outside the Quality Department).
1
We use “Quality Director” and “Director of Quality” interchangeably to describe Short’s
initial role at Mando.
3
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By July 2007, Mando’s president, Tae Young Kwak, 2 concluded that Short
was not equal to the task of running the Quality Department. Kwak thought that
under Short’s leadership the Quality Department’s communication with suppliers
had deteriorated and that the department was failing to keep complete and reliable
quality data. This in turn was affecting Mando’s ability to collect “chargebacks”
from its suppliers for expenses incurred when component parts did not conform to
purchase specifications. Mando’s suppliers were not accepting chargebacks from
the Quality Department because they did not think they were receiving adequate
and accurate information from Mando to justify the chargebacks. For example,
some suppliers would receive duplicate requests for chargebacks or requests for
chargebacks for components they had not supplied.
By the summer of 2007, there were hundreds of thousands of dollars of
outstanding chargebacks that Mando’s suppliers refused to accept. In an attempt to
resolve the problem, Kwak removed the “supplier quality” function from the
Quality Department and placed it in the Purchasing Department, which was headed
by Kibong Kim. Kwak thought Kim’s involvement would improve
communication between Mando and its suppliers and thus encourage the suppliers
to accept responsibility for the chargebacks. Short continued to have the
2
Kwak joined Mando in September 2006 and became its president in January 2007.
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responsibility of identifying nonconforming parts Mando received from suppliers,
of gathering the quality data Mando needed to initiate the chargebacks, and of
preparing the “debit memoranda” needed to support and justify the chargebacks.
Despite Kim’s involvement, Mando’s suppliers were still reluctant to honor the
chargebacks.
Between the summer of 2007 and late 2008, Kwak repeatedly complained to
Short about the high number of outstanding chargebacks, but the problem
persisted. By the fall of 2008, the United States was in recession, and the
automotive industry was experiencing a severe economic downturn.3 The
chargebacks had increased to several million dollars, and suppliers were more
resistant than ever to provide Mando refunds for noncompliant parts without
complete and accurate quality data.
On December 15, 2008, Kwak removed Short from his position as Director
of Quality and placed him in a new role, as Director of Customer Service and
3
Mando projected that its sales for 2009 would be one-sixth of the previous year’s sales. On
June 1, 2009, Mando’s primary customer, General Motors, sought bankruptcy protection, filing a
petition for Chapter 11 reorganization in the Bankruptcy Court for the Southern District of New
York. Parker v. Motors Liquidation Co. (In re Motors Liquidation Co.), 430 B.R. 65, 70
(S.D.N.Y. 2010). On July 10, 2009, a new entity completed the purchase of GM’s continuing
operations and assets as part of Chapter 11 reorganization. See
id. at 76–77.
5
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Warranty. 4 Short would work out of Mando’s office in Plymouth, Michigan, close
to the headquarters of the Big Three customers. Short was willing to take on the
new position, but wanted to work from his lakeside vacation home in Tennessee
instead of moving to Michigan. Kwak had misgivings, because he was convinced
that Short should have his office close to the Big Three’s headquarters, but he
relented and gave Short permission to work remotely. In January 2009, Short left
Opelika, Alabama, where he had been living, and moved to his Tennessee vacation
home.
According to Short, Kwak’s explanation for the change — Short’s removal
from the Director of Quality position and later assignment to the Director of
Customer Service and Warranty role — was that Mando wanted a Korean to head
the Quality Department. According to Kwak, by contrast, the change was
necessary because the company was not happy with Short’s handling of the
chargeback problem.
Kwak first offered the open Quality Director position to Jerry Rolison, who
was in charge of Mando’s Human Resources Department, but Rolison declined.
Kwak then turned to Ha, who accepted the position, and on January 1, 2009, Ha
became the head of the Quality Department. Ha’s title changed to “Quality
4
As Director of Customer Service and Warranty, Short would start at the annual salary he
had been receiving ($130,000), but effective March 1, 2009, when all of Mando’s managers
would be receiving a pay cut, his salary would be reduced to $96,000.
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Control/Production Engineering General Manager,” because he became
responsible for supplier quality, production quality, and customer service for
Mando’s non-Big Three customers, mainly Hyundai and Kia, while continuing in
his role as General Manager of Production Engineering.
By June 2009, Kwak had second thoughts about Short working from
Tennessee. As Kwak put it, Short was “out of the loop.” Kwak believed Short
could do a better job if he were close to the Big Three’s headquarters and their
plants in Toledo, Ohio, and Ontario, Canada. In addition, Mando could cut its
expenses by terminating its contract with a third party who had been handling
“drop shipments”5 and assigning that task to Short.
On June 18, 2009, Ha, speaking for Kwak, informed Short that he was being
transferred to Plymouth, Michigan, at the same salary and fringe benefits he had
been receiving. Ha told Short that in addition to servicing the Big Three customers
as Director of Customer Service and Warranty, he would be taking over the drop
shipments function.
On June 19, Short sent Ha an email, with a copy to Kwak, and a blind copy
to HR manager Rolison, questioning the transfer. In the email, Short stated that he
5
“Drop shipments” refer to parts and assemblies that are shipped directly from Mando’s
suppliers to Mando’s customers.
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would have “no difficulty handling all aspects” of the new assignment but
expressed his concern that the transfer amounted to a demotion:
I guess my question is as follows: “Why am I being demoted again?”
I was informed that the reason for my demotion in January 2009 was
because HQ wanted a Korean to be head of Quality. During the week
of December 15, 2008, I had a conversation with Mr. Kwak in which
he informed me that HQ wanted a Korean in the top spot for Quality,
in order to facilitate better communications with HQ. He also stated
that I would report to that Korean person. At that time it was not
disclosed to me who that person would be. I did ask Mr. Kwak what
my new title would be and he stated that my position would still be a
director level job.
....
I am sure you can recall the conversation that you and I had in
January, during which we discussed the reasons for the changes in my
job responsibilities. At that time, I stated that this was not a
performance issue, but that HQ wanted a Korean person to fill that top
spot in the company’s organization . . . .
To sum it all up, I was demoted from a position as the Director of
Quality (“top” Quality spot in the company) to handling all of
Customer Service and Warranty issues for the “big three”.
Now, you tell me that I am being demoted again. My question at this
time is simply, “WHY”?
On June 24, Ha responded to Short via email, with copy to Rolison. He
explained that the job change was due to “current business conditions” and “[was]
not associated [with] [Short’s] performance.” Ha complimented Short, noting that
his “leadership and contributions have been very beneficial,” but he stood firm on
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Short’s need to move to Michigan, explaining that “to be successful in this
proposed role,” Short would have to be in Plymouth because it would allow Short
to “better service [Mando’s] customers and suppliers more timely and
economically” because “the bulk of these contact points and locations are regional
to Plymouth.” He reassured Short that Mando had “no plans to reduce [his] salary,
. . . title or benefits” and that Mando was just changing his “job description” and
“base location.”
The next day, on June 25, Short emailed Ha in response, with a copy to
Rolison, telling them that he would take Ha at his word that Plymouth was the best
location for him. Short asked Ha for details about the move, including how soon it
would occur, whether Mando would cover his living expenses in Michigan until
his Tennessee home sold and he found a new home in Michigan, whether Mando
would purchase his Tennessee home at fair market value if it did not sell, whether
Mando would cover his real estate fees, whether Mando would handle listing his
Tennessee home for sale, and whether Mando would relocate his furniture and
belongings to Michigan. Short also “request[ed] a long-term [employment]
agreement from Mando” but did not specify what it would provide.
On July 9, Rolison emailed Short the terms of his transfer, with a copy to
Kwak and Ha. In the email, Rolison explained that Mando wanted Short to begin
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working out of its Plymouth office within the next week or two and asked that the
full relocation be completed no later than September 14th, assuring Short that
“[d]uring the interim period, [Mando] will absorb the business expenses of any
approved travel requirements to the Michigan area, or other related business travel
associated with the position.” Rolison informed Short that Mando’s “standard
relocation package is to provide a lump sum payment equal to 10% of [Short’s]
salary for miscellaneous moving expenses in addition to providing a moving
company to relocate [his] household belongings.” The lump sum payment was
intended to help Short pay for real estate fees, closing costs, and utility fees.
Rolison explained that Mando did not have a program for purchasing the homes of
relocated employees; hence, Short would have the responsibility of “selecting and
listing [his] home with a realtor.” With respect to Short’s request for a long-term
employment agreement, he told Short that Mando had a policy of employment at
will, and that only the president of the company “ha[d] the authority to enter into
any agreement with any individual for employment for a specified period of time.”
Rolison asked Short to let the company know his decision by July 16, 2009, and
stated that he “sincerely hope[d] that [Short] will accept this change and continue
to help [Mando] be successful.”
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Six days later, on July 15, Short sent Rolison an email, with copy to Ha and
Kwak, taking issue with the terms Rolison had set forth in his last email. Short
explained that he could not afford to buy or rent another home in Michigan until he
sold and closed on his Tennessee home and requested that Mando “be patient with
[him] as [he] work[s] through this [relocation] process.” Short took issue with the
lump sum payment, noting that the Michigan move would be his “third relocation
in less than three years” and that it would “cost more than the lump sum payment
. . . to break even.” Short pointed out that when he accepted the job as Quality
Director, Mando moved his household belongings in addition to providing him
with a lump sum payment of $20,000, which was more than ten percent of his
salary. He lamented that he was “being asked to move at the risk of financial
hardship” for a “lesser paying . . . less prestigious . . . position.” Short then listed
$43,950 worth of estimated real estate and closing costs he was going to incur and
complained that the $5,760 that he would have in hand for relocation after taxes
had been deducted would not cover the costs. He also brought up his previous
move to Tennessee, asking the following: “If Mando’s standard relocation
package provides a lump sum payment equal to 10% of the employee’s salary,
might I safely assume that I should be receiving $13,000 for my relocation to
Tennessee in January 2009?” Short concluded his email by stating that he was
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willing to negotiate with Kwak on a long-term employment agreement and then
requested a three-year employment agreement with standard benefits, a guarantee
that his salary would not be reduced, a company vehicle of the same class and size
as his current vehicle, assurance that he would get normal pay increases as the
other salaried employees received them, and assurance that he would not have to
move again.
On July 21, Rolison emailed Short, with copy to Kwak, explaining that
“after careful consideration and review of [his] demands,” Mando would not agree
to the terms Short requested. Rolison then provided Short with two options and
asked that Short let him know which option he chose:
Option 1: Accept the new position based in the Plymouth office with
the terms we presented; or
Option 2: It may be in the best interests of both parties if we release
you from [Mando’s] employment effective Friday, July 31, 2009.
Please get back to me within 24 hours with your final decision and I
hope we can continue the working relationship . . . .
We sincerely hope you select option 1; however, should you select
option 2, it has been a pleasure knowing and working with you.
The next day, July 22, Short sent Rolison and Kwak an email, with copy to
Ha, in which he explained that he had already “accepted” the position but
continued to challenge and negotiate the terms. Short stated the following:
12
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I thought it was understood that I had already accepted the
position. . . . I thought I was very careful to follow the instructions in
your email, dated 7/09/09 . . . . In item number 1 you told me that I
was to be in Plymouth within the next 1-2 weeks with the target date
for full relocation of September 14. You also said that, during the
interim period, [Mando] would absorb the business expenses of any
approved travel expenses to the Michigan area; I sent travel requests
to Nick and, so far, he has failed to approve them. In summary,
during the interim period between 7/9/09 and September 14 I was
expecting that [Mando] would take care of the expenses as I left
immediately for Michigan. . . . For this reason, I submitted 8 weeks of
travel requests. I have been awaiting approval to begin the process.
Secondly, I put my Tennessee home up for sale in order that I can
relocate. However, due to the $34,000 pay cut, I cannot afford
another home or apartment until this one is sold. So, yes, I am
attempting to accept the position, but I feel that [Mando] is not living
up to the conditions set forth in that email, or I would already be
involved in the transition to the Plymouth, Michigan office.
In order to be perfectly clear, let me state that I am accepting option
no. 1 of your email dated 7/21/09 . . . . the position in Plymouth,
Michigan with the terms you have presented. Option number 2 is not
acceptable.
...
This will be my second move on behalf of [Mando] in one year. As
mentioned above, I cannot afford another home or apartment at this
time; therefore, I was requesting additional relocation assistance to
minimize my financial loss. Also, I need some assurance that I will
not sell my home in Tennessee and move to Michigan, only to be
terminated and left in that location. For this reason, I made the
statement that I need a three-year contract of employment, not that I
demand a contract.
...
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Regarding the last move [to Tennessee], I had a simple question: was
I not entitled to the standard moving package of 10% of my salary to
cover the expenses that I incurred during that move?
Also on July 22, Short prepared his first “Charge of Discrimination,” which
he filed with the Equal Employment Opportunity Commission (EEOC) on
July 30, 2009.6
On July 30, Rolison sent Short an email in response to his July 22 email,
with copy to Ha and Kwak, telling Short that Mando was “pleased that [Short had]
accepted the position in Michigan” and requesting that Short “prepare to begin
operating out of the Plymouth offices by August 13th” because the contractor,
whose drop shipment duties Short was to take over, had already been released.
The next day, July 31, Short sent Rolison an email, with a copy to Ha and
Kwak, in which he accused Mando of changing his start date and complained
about the relocation terms. He said this about the start date:
In the e-mail dated 7/9/09 you stated that you wanted me in Plymouth
in one to two weeks; you wanted me permanently relocated no later
than September 14, and that you would absorb the business expenses
of any approved travel requirements. In the email I received
yesterday you indicated that I am expected to be permanently
relocated by August 13, and that you are expecting me to cover all
6
In his first EEOC filing, Short alleged the following: “It is my belief that the company is
trying to force me to quit due to my age and my national origin as the company has expressed a
preference for Korean persons to hold top positions within the company. Further, I believe I am
being retaliated against for voicing my complaints of discrimination.”
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expenses. The e-mail yesterday is clearly not aligned with your
earlier proposal dated July 9.
Short went on to say that he “[could] not afford to pay [for] rent, or buy a home
until [his] Tennessee home sells and closes” and that he was “aware of other
employees within Mando who have been expected to move, and the company has
been much more patient with them due to similar domestic situations.” Without
naming the “other employees,” Short asked, “[w]hy am I not receiving equal
consideration?” In the last paragraph of his email, Short stated that he was
“finding it difficult/frustrating to deal with the constant changing of [Mando’s]
expectations” and that he was “ready and willing to work in Michigan” but
“need[ed] fair and consistent direction in order to make this transition.”
After receiving Short’s email, Kwak thought it was evident that Short was
not agreeable to the relocation package and thus concluded that he was not willing
to accept Mando’s continued employment. He instructed Rolison to advise Short
that his employment with Mando had ended. Rolison called Short on July 31,
2009, but Short did not answer the phone, so Rolison left a message, asking Short
to call him back. On August 3, when Short returned the call, Rolison informed
him that his employment with Mando had been terminated. Rolison followed the
call with an email dated August 7. The email reiterated that Short’s employment
had been terminated effective July 31, 2009, and noted that the parties were
15
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“unsuccessful in reaching a mutually acceptable relocation package.” Mando hired
a white American male, Will Trent, as Director of Customer Service and Warranty,
the position Short had occupied prior to his discharge. Mando hired a permanent
employee, a white American male, Don Scott, to perform the drop shipment duties
Short was to have assumed.
On August 5, 2009, Mando received written notification from the EEOC of
the charge of discrimination that Short had filed on July 30. On August 19, 2009,
Short filed a second EEOC charge.7 After receiving right to sue notices from the
EEOC, which were mailed on February 2, 2010, Short filed this lawsuit on April
22, 2010.
Short’s complaint asserted seven counts, only three of which are relevant to
this appeal. Under 42 U.S.C. § 1981 and Title VII, he raised claims of racial
discrimination, national origin discrimination, and retaliation. In support of those
claims, he alleged that he had suffered three adverse employment actions at
Mando: (1) he was demoted from his position as Director of Quality Control in
7
In his second EEOC filing, Short alleged the following:
My name is Claude Short and I filed a charge with the EEOC on July 30, 2009 . . . .
It is attached as Exhibit “A.” I am a white male and I am 62 years of age. I am
American. My employer . . . told me they preferred Korean individuals working at
my level of management within the company. I was fired within five (5) days of
filing my prior [July 30] charge. The company gave no reason for terminating my
employment . . . . It is my belief I was terminated in retaliation for my complaints
and further as a result of unlawful discrimination and harassment.
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December 2008; (2) he was demoted from his position as Director of Customer
Service and Warranty and transferred to Michigan in June 2009; and (3) his
employment was terminated in August 2009.
By the time the case was at the summary judgment stage, Short had
abandoned most of his claims except for those alleging discrimination based on
race and national origin, as well as retaliation. The district court separately
considered each of the three alleged adverse employment actions. It granted
summary judgment in favor of Mando on all of Short’s remaining claims except
for his § 1981 racial discrimination claim based on his alleged 2008 demotion,
which went to trial.
The jury returned a verdict in favor of Mando, and the district court entered
judgment on the verdict. Short has appealed the district court’s grant of summary
judgment on his discrimination and retaliation claims based on his June 2009
transfer to Michigan and his August 2009 termination. He also contends that an
alleged Batson violation and some erroneous evidentiary rulings entitle him to a
new trial on his § 1981 discriminatory demotion claim based on his 2008
demotion.8
8
Specifically, Short contends that the district court (1) erred in overruling his objection,
based on Batson v. Kentucky, 476 U.S. 79,
106 S. Ct. 1712 (1986), and its progeny, to Mando’s
peremptory challenge of four black prospective jurors; (2) abused its discretion in granting
Mando’s motion in limine to preclude him from introducing evidence unrelated to his December
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II.
To begin with, we find no merit in any of Short’s arguments for a new trial
on the § 1981 discriminatory demotion claim and accordingly affirm the district
court’s judgment as to that claim without further discussion. We therefore move to
the district court’s summary disposition of Short’s claims that Mando (1)
discriminated against him based on race or national origin when it transferred 9 him
to Michigan in June 2009 (the discriminatory transfer claim); (2) discriminated
against him based on race or national origin when it terminated his employment in
August 2009 (the discriminatory termination claim); and (3) retaliated against him
when he complained about the company’s allegedly discriminatory conduct (the
retaliation claims). We review de novo the district court’s grant of summary
15, 2008, demotion as Director of Quality; (3) abused its discretion in permitting Mando to
introduce into evidence two nondiscriminatory reasons (not identified in the pretrial order) for
the demotion; (4) abused its discretion in permitting Mando to call as a witness Kim Gradic of
Mando’s Human Resources Department, because although Short listed Gradic as a witness,
Mando did not; and (5) abused its discretion in limiting the testimony of a former Mando
employee, Leanne Kidd, who had sued Mando claiming that it favored persons of Korean origin
over white Americans in its employment decisions.
9
We note that Short repeatedly characterizes the June 2009 transfer as a “demotion.” Mando
disputes that it was a demotion and further contends that the transfer was not an adverse
employment action. For purposes of resolving this appeal, we need not decide whether the
employment action taken by Mando was a demotion, a transfer, or both, because it does not
change our analysis. Instead, we will assume that the transfer amounted to a demotion, which is
indisputably an adverse action.
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judgment, applying the same standards as the district court. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255,
106 S. Ct. 2505, 2513 (1986); Lucas v. W.W.
Grainger, Inc.,
257 F.3d 1249, 1255 (11th Cir. 2001).
Title VII and § 1981 “have the same requirements of proof and use the same
analytical framework.” Standard v. A.B.E.L Servs., Inc., 161 F.3d 1318, 1330
(11th Cir. 1998). Under that familiar McDonnell Douglas framework, if the
plaintiff makes out a prima facie case,10 the defendant must proffer a legitimate,
nondiscriminatory reason for its actions. Alvarez v. Royal Atl. Developers, Inc.,
610 F.3d 1253, 1265 (11th Cir. 2010). “The defendant need not persuade the court
that it was actually motivated by the proffered reason, but need only present
evidence raising a genuine issue of fact as to whether it discriminated against the
plaintiff.”
Id. “However, the defendant’s response must frame the factual issue
10
The district court assumed that Short made out prima facie cases for discriminatory
transfer, discriminatory termination, and retaliation, and moved to the questions of whether
Mando had proffered legitimate reasons for its actions and whether Short had shown the reasons
to be pretextual. That is an acceptable analytical approach. See, e.g., Alvarez v. Royal Atl.
Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010) (assuming a prima facie case and stating
that “[i]t matters not whether [the plaintiff] has made out a prima facie case if she cannot create a
genuine issue of material fact as to whether [her employer’s] proffered reasons for firing her are
pretext masking discrimination”). We note, however, that in addition to the lack of pretext
evidence, we seriously doubt that Short has established a prima facie case for discriminatory or
retaliatory conduct. Regarding the transfer and termination claims, Short has presented no
evidence of a “similarly situated comparator,” someone outside of his class who was treated
more favorably under the same or similar circumstances. Regarding the retaliation claims, Short
has shown no causal connection between the alleged protected activities and the adverse actions.
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with sufficient clarity so that the plaintiff will have a full and fair opportunity to
demonstrate pretext.” Id. (quotation marks omitted).
Regarding the discriminatory transfer claim, Mando’s proffered legitimate
reasons were that it took the action in order to cut costs (by having a salaried
employee instead of a contractor handle the drop shipments) and to improve
service to its customers, including the Big Three, which were located there.
Instead of showing that the proffered reasons for the transfer were pretextual, Short
quarrels with Mando’s business judgment and with the company’s purportedly
subjective reasons for its decision, which he asserts are less deserving of credence.
Those efforts to show pretext fail. See Chapman v. AI Transp., 229 F.3d 1012,
1030 (11th Cir. 2000) (en banc) (“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.”);
id. at 1034 (“[S]ubjective reasons are not the red-headed stepchildren of
proffered nondiscriminatory explanations for employment decisions. Subjective
reasons can be just as valid as objective reasons.”). We similarly reject Short’s
contention that Mando’s proffered reasons are not clearly articulated or are too
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vague to give him a full and fair opportunity to demonstrate pretext. 11 There is
nothing vague about Mando’s claimed desire to cut costs 12 and provide better
service to the Big Three.
Short directs our attention back to Kwak’s alleged comment about Mando’s
headquarters wanting a Korean in the Quality Director position, which was made
when Short was removed from that position in December 2008. Short asserts that
there is no reason to believe that Kwak’s “bigotry” would have decreased six
months after he made that comment, so it should be considered evidence of pretext
in the June 2009 transfer decision. While we agree that a stray remark by a
decision maker can be considered circumstantial evidence of discriminatory
animus, we nevertheless conclude that this particular remark was “isolated and
unrelated to the challenged employment decision” and therefore insufficient by
itself to establish a genuine fact issue on pretext. Rojas v. Florida, 285 F.3d 1339,
11
Short relies on Stamey v. Southern Bell Telephone & Telegraph Co., 859 F.2d 855, 861–
62 (11th Cir. 1988). In that case, we said that the employer offered “only vague ‘business
reasons’ for the restructuring” in response to the plaintiff’s evidence that all of the older people
in management were being phased out.
Id. at 862. The result in Stamey was that the defendant
failed to rebut the plaintiff’s prima facie case. But Mando’s reasons for its June 2009 decision
are not vague, and Short’s evidence of discrimination is virtually nonexistent.
12
Short believes that his transfer would not have saved the company money on travel costs.
He does not mention, however, the money that would have been saved by having him take over
the drop shipment work from a contractor. More to the point, Short’s beliefs about what Mando
would or would not have saved by moving him to Michigan are not relevant. What matters is
what Kwak believed. See Alvarez, 610 F.3d at 1266 (“The inquiry into pretext centers on the
employer’s beliefs, not the employee’s beliefs and, to be blunt about it, not on reality as it exists
outside of the decision maker’s head.”).
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1343 (11th Cir. 2002). If anything, the remark “created only a weak issue of fact”
as to whether Mando’s proffered reasons were untrue, which as a matter of law
cannot overcome “abundant and uncontroverted independent evidence that no
discrimination had occurred.” Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 148,
120 S. Ct. 2097, 2109 (2000). In sum, we agree with the district
court that Short has failed to show that Mando’s proffered reasons for Short’s
transfer to Michigan were a pretext for discrimination.
As for the discriminatory termination claim, Short contends that Mando did
not provide a specific enough reason for his termination. Instead, according to
Short, the district court “rummage[d] through the record” and provided a reason on
Mando’s behalf. To the extent that the district court rummaged, it certainly did
not need to rummage very deep: the record is clear that Short and Mando could
not agree on the terms of the relocation package. During the negotiation, Mando
presented Short with two options: he could accept the terms of the relocation as
offered, or his employment with Mando was over. Short said he wanted to accept
the position, but he nonetheless persisted in trying to negotiate terms more
favorable to him. Rolison sent Short an email that said: “While several attempts
were made to express our interest in maintaining your employment in the
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Plymouth, Michigan area, we were unsuccessful in reaching a mutually acceptable
relocation package.” Mando told Short that his employment was over.
The string of emails between Short and Ha (acting on behalf of Kwak) and
Short and Rolison (also acting on behalf of Kwak) does not create an issue of fact.
No reasonable juror could find that Short accepted the terms of the relocation offer.
More to the point, no reasonable juror could find that Mando’s proffered reason for
Short’s termination — that he had not accepted the terms of the relocation offer —
was a pretext for discrimination.
Finally, Short also failed to show that Mando’s reasons for transferring and
terminating him were a pretext for retaliatory conduct. In response to Short’s
retaliatory transfer claim, Mando asserted that the decision was made to cut costs
and provide better service to customers. Those proffered reasons were no more a
pretext for retaliation against Short than they were pretext for discrimination
against him. 13 In response to Short’s retaliatory termination claim, Mando asserted
13
We do not intend to state or imply that a reason that is not a pretext for discrimination
cannot be a pretext for retaliation. Those inquiries must be addressed separately. That does not
mean, however, that evidence in the record establishing that there was no genuine issue of
material fact about pretext for discrimination cannot also serve as a basis for affirming the
district court’s judgment on the retaliation claims. We are reviewing the district court’s grant of
summary judgment de novo, which means that we “consider all the evidence in the record, and
make all reasonable factual inferences, in the light most favorable to the non-moving party.”
Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117, 1121 (11th Cir. 2014). Considering all the
evidence in the record and making inferences in the required light, we are convinced that Short
failed to show that Mando’s reasons for transferring him and later terminating him were a pretext
for unlawful retaliation.
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that Short refused to accept the terms and conditions of his relocation to Michigan.
Again, that proffered reason is no more pretext for retaliation against Short than it
was for discrimination against him.
AFFIRMED.
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