Case: 14-11159   Date Filed: 04/30/2015   Page: 1 of 15


                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                              No. 14-11159
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 1:13-cv-20574-CMA



CHARLES WELLONS,

                                                       Plaintiff-Appellant,

                   versus

MIAMI DADE COUNTY,
MIAMI-DADE TRANSIT AGENCY,

                                                       Defendants-Appellees.

                        ________________________

                 Appeal from the United States District Court
                     for the Southern District of Florida
                       ________________________

                               (April 30, 2015)

Before TJOFLAT, WILSON and, JORDAN, Circuit Judges.

PER CURIAM:

     Charles Wellons appeals from the district court’s order granting summary

judgment in favor of Miami-Dade County and the Miami-Dade Transit Agency on
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his claims of employment discrimination and retaliation in violation of Title VII of

the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a). Mr.

Wellons argues that the district court erred in granting summary judgment on his

race discrimination claim for his five-day suspension, on his retaliation claim for

his ten-day suspension, and on his retaliation claim for his termination.

      For the reasons that follow, we affirm.

                                          I

      Mr. Wellons, an African-American male, alleges that in August of 2008,

Eric Muntan, MDTA’s chief of safety and security, said that Mr. Muntan was the

“new head nigger in charge.” D.E. 24 at 3. Mr. Wellons alleges that, after he

expressed dissatisfaction about the statement, Mr. Muntan retaliated against him by

excluding him from meetings, overlooking him for assignments, and denying him a

promotion. 

of 2010, Mr. Wellons filed a complaint with the Miami-

Dade County Office of Fair Employment Practices, alleging race discrimination,

age discrimination, and retaliation. D.E. 66-7 at 2-3.

      In June of 2011, Mr. Wellons received a five-day suspension. The

Disciplinary Action Report (“DAR”) stated that Mr. Wellons received the

suspension for insubordination because he failed to attend a scheduled conference

call and he hung up the phone when Horace Graham, his supervisor, reminded him

about the meeting. D.E. 66-13 at 1-2. Mr. Wellons denied hanging up on Mr.


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Graham, but admitted that he forgot about the conference call. D.E. 66-31 at 3-4.

Ms. Lau, a personnel specialist with MDTA’s Office of Civil Rights, testified that

she recommended the five-day suspension because Mr. Wellons committed a clear

act of insubordination, and other employees received a five-day suspension for

insubordination when they had a clean disciplinary record. D.E. 51-30 at 21.

      On July 6, 2011, Mr. Wellons filed a complaint with the Miami-Dade

Commission on Ethics and Public Trust, alleging that Mr. Muntan and Mr. Graham

issued the five-day suspension to retaliate against him for reporting contractual

violations by 50 State Security—one of MDTA’s security contractors—and for

reporting a complaint of sexual harassment against Kelvin Gonzalez, a security

supervisor. [D.E. 66-17 at 2-5]. Mr. Wellons also claimed that Mr. Muntan and Mr.

Graham barred him from investigating the sexual harassment complaint because it

was a personnel matter for 50 State Security. 

      On July 18, 2011, Mr. Gonzalez filed a complaint against Mr. Wellons for

harassment and retaliation. See D.E. 66-19 at 1. Maria Fajardo, a personnel

specialist in MDTA’s Office of Civil Rights, investigated the complaint and issued

a report summarizing her findings on August 25, 2011. Ms. Fajardo determined

that Mr. Wellons targeted Mr. Gonzalez, and she recommended that administrative

action be taken against him. D.E. 66-18 at 3. In October of 2011, Mr. Muntan




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issued Mr. Wellons a DAR and a ten-day suspension based on Ms. Fajardo’s report

and recommendation. D.E. 66-21 at 1-2.

       In February of 2012, Mr. Wellons sent an e-mail to Mr. Graham and Mr.

Muntan reporting that he observed Albert Montiel—an employee of Professional

Protection and Investigations Agency, one of MDTA’s contractors—sitting at his

post with his pants unzipped. D.E. 66-24 at 1. According to Mr. Wellons, Mr.

Montiel was “well equipped with enticements (juices and snacks) that may be

appealing to the disadvantaged and young children.” 

28, 2012,

James Fernandez, the president of PPIA, sent an e-mail to Mr. Graham asking

whether Mr. Wellons was implying in his e-mail that Mr. Montiel was a pedophile.

D.E. 51-36 at 2.

       On March 9, 2012, Mr. Fernandez sent an e-mail to Mr. Muntan and Mr.

Graham reporting that Mr. Wellons called Reynaldo Rolo, PPIA’s project

manager, and questioned him about an EEOC charge and PPIA’s internal

procedures. D.E. 51-39 at 2. In the e-mail, Mr. Fernandez complained that this

questioning was harassing and constituted tortious interference.1 

Fernandez’s e-mail to Mr. Muntan and Mr. Graham stated as follows: “Mr. Wellons’
actions are causing undue harm to my relationship with my employees and the relationship
Security Alliance enjoys with their employees. This behavior can be interpreted as tortious
interference by instigating inflammatory accusations and responses by our employees to file
complaints with governing authorities against us. Mr. Wellons’ line of questioning to my staff is
completely outside the realm of our contractual obligation to Miami Dade Transit. Furthermore,
Mr. Wellons’ behavior is causing irrevocable harm and I have no further options than to request
his immediate removal from any oversight of our contract.”
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        Mr. Fernandez’s e-mail further stated: “Mr. Wellons’[s] behavior is causing

irrevocable harm and I have no further options than to request his immediate

removal from any oversight of our contract.” 

14, 2012, Mr. Graham

notified Mr. Wellons of the complaints against him and informed him that his

contract oversight and administrative duties were being restricted. D.E. 66-26 at 2-

3.

        In April of 2012, Mr. Wellons sent a letter to Fair Employment Practices

asserting that Mr. Muntan targeted him for objecting to Mr. Muntan’s use of a

racial epithet, which occurred in 2008. D.E. 66-27 at 1, 4, 6. He also claimed that

Mr. Muntan discriminated against him based on his race and age and retaliated

against him for a report to the Office of the Inspector General. 

Additionally, he asserted that Mr. Muntan created a hostile work environment. 

        In May of 2012, Mr. Wellons received another DAR. This one stated that

MDTA received two complaints from PPIA about Mr. Wellons’ Montiel report

and his questioning of Mr. Rolo. D.E. 66-30 at 2-3. The DAR also stated that Mr.

Gonzalez filed a second grievance following Mr. Wellons’ failure to acknowledge

his presence or inspect his credentials during an inspection on March 14, 2012. 

Furthermore, the DAR stated that Mr. Wellons contacted a PPIA employee to




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continue contractual oversight after he was ordered to end his administrative

oversight of that contract. 

2

       Ysela Llort, the director of MDTA, terminated Mr. Wellons in July of 2012.

Ms. Llort interviewed Mr. Wellons prior to finalizing his termination. She

asked Mr. Wellons to give her any information that he wanted her to consider

before making her decision. D.E. 66-35 at 59. Mr. Wellons testified in an affidavit

that Ms. Llort asked him no questions during his meeting with her about the

termination recommendation, and he stated that she only asked him for a narrative

of why he should not be terminated. D.E. 66-31 at 6-7.




2
  The DAR charged Mr. Wellons with violating paragraphs D, I, and S of the County’s Personnel
Rules Chapter VIII, Section 7. The relevant paragraphs of County’s Personnel Rules provide as
follows:

               (D) That the employee has violated any lawful or official regulation or
       order, or failed to obey any lawful and reasonable direction given him by a
       supervisor, when such violation or failure to obey amounts to insubordination or
       serious breach of discipline which may reasonably be expected to result in lower
       morale in the organization or result in loss, inconvenience or injury to the County
       service or to the public.
               (I) That the employee has been guilty of conduct unbecoming an
       employee of the County whether on or off duty, provided allegations shall be
       specific and shall describe the conduct which is the basis of the charge.
               (S) That the employee is antagonistic towards supervisors and fellow
       employees, criticizing orders, rules and policies, and whose conduct interferes
       with the proper cooperation of employees and impairs the efficiency of the
       County Service.

In support of the charges against Mr. Wellons, the DAR cited to three vendor complaints: the
February 28, 2012, e-mail from Mr. Fernandez; the March 9, 2012, e-mail from Mr. Fernandez;
and Mr. Gonzalez’s second grievance filed against Mr. Wellons relating to an incident on March
14, 2012. D.E. 66-30 at 1-2.
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      Ms. Llort concluded that Mr. Wellons’ account of the relevant events was

not compelling because he did not address the complaints set out in the DAR. D.E.

66-35 at 72. She testified that she conducted an investigation by talking to Mr.

Graham, Cathy Lewis, and Kelly Lau, reading the DAR documents and Mr.

Wellons’ additional information, and conducting a hearing with Mr. Wellons. 

After her independent investigation, Ms. Llort upheld the dismissal

recommendation. 

      Following discovery, the County filed a motion for summary judgment.

D.E. 52. The district court granted the motion in favor of the County on all claims.

D.E. 84.

                                          II

      We review the grant of a motion for summary judgment de novo, applying

the same legal standard as the district court. See Carter v. Three Springs

Residential Treatment, 

, 641 (11th Cir. 1998). We view the evidence

in the light most favorable to the non-moving party. See 

is

appropriate “if the pleadings, depositions, and affidavits show that there is no

genuine issue of material fact and that the moving party is entitled to judgment as a

matter of law.” 

Mr. Wellons challenges the district court’s ruling that he failed to

show that the County’s reasons for the five-day suspension were pretextual. Mr.


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Wellons further argues that the district court erred in concluding that he did not

establish a prima facie case of retaliation and that he did not show pretext for either

of his retaliation claims. We conclude that the district court did not err in granting

summary judgment because Mr. Wellons failed to establish that any of the

County’s proffered reasons for the five-day suspension, the ten-day suspension, or

termination were pretext for unlawful discrimination or retaliation. Accordingly,

we affirm.

                                           III

      Title VII prohibits discrimination against an employee because of his race.

See 42 U.S.C. § 2000e-2(a)(1). When a plaintiff lacks direct evidence of

discrimination, courts use the burden-shifting framework in McDonnell Douglas

Corp. v. Green, 

(1973), to analyze circumstantial evidence of

discrimination. See McCann v. Tillman, 

, 1373 (11th Cir. 2008). A

plaintiff establishes a prima facie case of discrimination by showing that: “(1) [he]

is a member of a protected class; (2) [he] was subjected to adverse employment

action; (3) [his] employer treated similarly situated [white] employees more

favorably; and (4) [he] was qualified to do the job.” EEOC v. Joe's Stone Crab,

Inc., 

, 1286 (11th Cir. 2000). Once the plaintiff establishes a prima

facie case, the defendant must state a legitimate, nondiscriminatory reason for the




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adverse action. 

. If the defendant does so, the plaintiff

must show that the defendant’s reasons are pretext for unlawful discrimination. 

may demonstrate pretext by showing that the defendant’s

proffered reason is a “coverup for a . . . discriminatory decision.” McDonnell

Douglas 

. The plaintiff cannot merely recast the defendant’s

non-discriminatory reason; rather, he must meet the reason “head on and rebut it.”

Wilson v. B/E Aerospace, Inc., 

, 1088 (11th Cir. 2004). Generally

speaking, a reason is pretextual only when it is false and the true reason for the

decision is discrimination. See Springer v. Convergys Customer Mgmt. Grp. Inc.,

, 1349 (11th Cir. 2007). See also Damon v. Fleming Supermarkets of

Fla., Inc., 

, 1361 (11th Cir. 1999) (“We are not in the business of

adjudging whether employment decisions are prudent or fair. Instead, our sole

concern is whether unlawful discriminatory animus motivates a challenged

employment decision.”).

      An isolated, discriminatory comment that is unrelated to the challenged

employment decision can contribute to a circumstantial case of pretext, but it is

insufficient to establish a material issue of pretext by itself. See Rojas v. Florida,

, 1342-43 (11th Cir. 2002). In some cases, a plaintiff may

demonstrate pretext by disputing the defendant’s factual allegations and

questioning its sincere belief that those facts existed at the time it made the


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employment decision. See Vessels v. Atlanta Indep. Sch. Sys., 

, 771

(11th Cir. 2005). See also Elrod v. Sears, Roebuck & Co., 

, 1471

(11th Cir. 1991) (holding that an employer was entitled to judgment

notwithstanding the verdict because, although the employee “may have convinced

the jury that the allegations against him were untrue, . . . he certainly did not

present evidence that [the employer’s] asserted belief in those allegations was

unworthy of credence.”)

      The district court correctly concluded that Mr. Wellons did not create a jury

issue on pretext for his race discrimination claim. Mr. Wellons challenges the

factual accuracy of Mr. Muntan’s reasons for issuing him a five-day suspension,

but he presents no evidence showing that Mr. Muntan—the decision maker who

authorized the five-day suspension—disbelieved Mr. Graham’s account of Mr.

Wellons’ insubordination. Because Mr. Wellons did not challenge Mr. Muntan’s

sincere belief about the facts leading to the suspension, he did not create a genuine

issue of pretext by challenging the factual accuracy of the reasons for the

suspension. See 

(noting that the plaintiff would have

failed to establish pretext if he “only disputed that the incidents occurred, without

calling into question [the employer’s] sincere belief that they occurred”). See also

.




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      Furthermore, Mr. Wellons failed to produce evidence showing that his five-

day suspension was motivated by discrimination rather than by the proffered

reasons. Mr. Wellons’ evidence that Mr. Muntan once uttered a racial epithet did

not create a genuine issue of pretext. Mr. Muntan used the racial epithet in August

of 2008, and Mr. Wellons complained about the racial epithet in January of 2010—

nearly a year and a half after the incident occurred. Furthermore, Mr. Wellons

testified that Mr. Muntan did not use the epithet in his presence, and Mr. Wellons

never heard Mr. Muntan use the epithet again. D.E. 51-12 at 109, 112. On this

record, Mr. Muntan’s use of a racial epithet does not establish a genuine issue of

pretext because the remark was isolated and unrelated to any actions taken against

Mr. Wellons. See 

.

                                        IV

      We analyze claims of retaliation based on circumstantial evidence under the

McDonnell Douglas framework. See Holifield v. Reno, 

, 1566 (11th

Cir. 1997). Even assuming that Mr. Wellons met his burden of establishing a prima

facie case of retaliation for his ten-day suspension and termination, the district

court did not err in granting summary judgment because Mr. Wellons failed to

establish that any of the County’s proffered reasons for its decisions were

pretextual.




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        When attempting to show pretext, the fact that an employer has departed

from established guidelines or procedures may be evidence that it has attempted to

conceal discriminatory motives. See Brown v. Am. Honda Motors Co., 

, 951 (11th Cir. 1991). See also Hurlbert v. St. Mary's Health Care Sys., Inc.,

, 1299 (11th Cir. 2006) (analyzing a discrimination claim and a

retaliation claim together, and noting that “an employer's deviation from its own

standard procedures may serve as evidence of pretext”). Even when an employer

violates its own policies, however, “it does not necessarily indicate [pretext].”

(race discrimination case) (emphasis added).

        The County argued that the ten-day suspension was justified because Mr.

Wellons unfairly targeted Mr. Gonzalez. D.E. 66-18 at 3. Mr. Wellons responded

that he established a genuine issue of pretext by pointing to Mr. Muntan’s poor

credibility, incorrect factual statements in Ms. Fajardo’s report, and inconsistent

testimony from Ms. Fajardo and Mr. Muntan about the reason for the suspension.

Although Mr. Wellons disputes the County’s factual assertions, he fails to establish

a genuine issue of pretext because he does not challenge Mr. Muntan’s sincere

belief in the accuracy of Ms. Fajardo’s report when he issued the ten-day

suspension. D.E. 51-6 at 19. See 

; 

.




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       Mr. Wellons also attempts to establish pretext by arguing that MDTA

deviated from its policies when issuing the ten-day suspension. MDTA’s policy on

disciplinary actions states that the immediate supervisor should conduct an

investigation after learning about an incident, but it permits the supervisor to

prepare a DAR immediately when an incident review is not required. D.E. 66-2 at

1-2. Mr. Muntan testified that he did not conduct an investigation before issuing

the suspension because the human resources department was responsible for the

investigation. D.E. 51-6 at 19. 3

       Mr. Wellons did not demonstrate that Mr. Muntan violated MDTA policy by

issuing the DAR and the ten-day suspension based on Ms. Fajardo’s investigation

and report. Uncontradicted evidence showed that Mr. Muntan was not required to

conduct an investigation in this case. Thus, Mr. Wellons did not demonstrate a

departure from MDTA policy that could disguise retaliatory conduct. See 

; 

. In sum, Mr. Wellons did not show a

genuine issue of fact as to whether MDTA’s rationale for his ten-day suspension

was a pretext for retaliation, and the district court did not err by granting summary

judgment on this claim.



3
  MDTA’s internal procedure for disciplinary action states that the immediate supervisor should
conduct an investigation after learning about an incident, but it also provides that “[i]f an
incident review is not required, such as in the case of a miss-out, a DAR should be prepared
immediately.” D.E. 66-2 at 1-2.
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      Similarly, the district court did not err in granting summary judgment on the

second retaliation claim because Mr. Wellons failed to establish that the County’s

reasons for his termination were pretextual. Mr. Wellons contests the factual

accuracy of the complaints that led to his termination, but he does not challenge the

sincerity of Ms. Llort belief that Mr. Wellons committed the offenses for which he

was terminated. Mr. Wellons cannot establish a genuine issue of pretext by merely

challenging the factual accuracy of the claims contained in the DAR. See 

; 

.

      Mr. Wellons also argues that Mr. Graham, Mr. Muntan, and Ms. Llort

deviated from MDTA’s policies by failing to properly investigate the complaints

against him. He argues that Ms. Llort did not ask him any questions, but the record

indicates that Ms. Llort interviewed Mr. Wellons prior to finalizing the

termination, during which she asked him to provide any information that he wanted

her to consider. D.E. 66-35 at 58. Significantly, Mr. Wellons admits that, prior to

the meeting with Ms. Llort, he sent Ms. Llort a “rebuttal of the charges” made

against him. D.E. 66-31 at 6. Mr. Wellons further admits that, during the meeting,

Ms. Llort “asked [him] to provide a narrative of the reasons why [he] should not be

terminated.” 

Furthermore, Mr. Wellons did not produce any evidence

showing that any of the alleged deviations from the investigation policy were

motivated by a retaliatory animus.


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      The County suspended Mr. Wellons for ten days because Ms. Fajardo’s

report indicated that he used his position to unfairly target Mr. Gonzalez. See D.E.

66-18 at 3. The County terminated Mr. Wellons for violating three of the County’s

personnel rules. See D.E. 66-30. To support the decision to terminate Mr. Wellons,

the County cited to three vendor complaints against him: the February 28, 2012, e-

mail from Mr. Fernandez; the March 9, 2012, e-mail from Mr. Fernandez; and Mr.

Gonzalez’s second grievance against Mr. Wellons relating to an incident on March

14, 2012. D.E. 66-30 at 1-2. Although Mr. Wellons quarrels with the factual

accuracy of the reasons for his ten-day suspension and termination, he fails to rebut

the decision-makers’ sincere belief that he committed the offenses for which he

was suspended and terminated. Accordingly, Mr. Wellons fails to establish that the

reasons for his ten-day suspension and termination were pretext for retaliation.

                                         V

      For the foregoing reasons, we affirm the district court’s order granting

summary judgment.

      AFFIRMED.




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