Case: 12-13725   Date Filed: 03/25/2013   Page: 1 of 10

                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 12-13725
                          Non-Argument Calendar
                        ________________________

                    D.C. Docket No. 5:10-cv-00352-CAR



TONY FAIRCLOTH,

                                                             Plaintiff-Appellant,

                                    versus

HERKEL INVESTMENTS INC.,
d.b.a. Aarons Sales and Lease,

                                                            Defendant-Appellee.

                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Georgia
                       ________________________

                              (March 25, 2013)

Before TJOFLAT, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:
              Case: 12-13725     Date Filed: 03/25/2013   Page: 2 of 10

                                          I.

                                          A.

      Herkel Investments, Inc. is a franchisee for Aaron’s Rents and operates six

stores throughout Georgia, including stores in Macon and Warner Robins. These

stores sell and lease residential and office furniture, consumer electronics, and

home appliances. In January 2002, Herkel hired Tony Faircloth as the Macon store

Customer Account Manager, responsible for collecting past-due rent from

customers and assisting the store’s General Manager, Sharon Thompson.

      By the summer of 2002, Faircloth and Thompson had entered into a

consensual sexual relationship that lasted for a year, until the summer of 2003.

Shortly thereafter, Herkel promoted Faircloth to General Manager of the Warner

Robbins store and to District Manager, with supervision of the stores in Savannah,

Rome, and Dalton. In 2004, Faircoth and Thompson resumed their sexual

relationship; it continued until 2007. Faircloth described the relationship as

“friends with benefits.” Faircloth also described it as “nonconsensual,” that he was

sexually involved with Thompson so that she didn’t cause him as many problems

at work.

      In early 2008, Herkel removed Faircloth from his District Manager position.

Chris LaPerchia, Herkel’s president, told him that it was not a demotion; rather, it

was the result of the Warner Robbins’s store’s declining economic performance.


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About that time, the exact month Faircloth could not recall, Faircloth told

LaPerchia that he wanted to a file sexual harassment charge against Thompson.

He told LaPerchia that Thompson and Herkel were discriminating against black

employees on account of their race. He said that Thompson once referred to a

black employee using the “N-word,” and that Herkel mistreated black employees

in allowing time off.

      On October 20, 2008, Herkel terminated Faircloth’s employment, and, at the

same time, eliminated the position of General Manager at the Warner Robbins

store. Thompson assumed Faircloth’s duties at that store, while continuing to

function as General Manager of the Macon store.

      On December 10, 2008, Faircloth filed a charge with the Equal Employment

Opportunity Commission (the “EEOC”) in which he stated that he had been

subjected to sexual harassment, discriminated against because of his sex and

retaliated against because he opposed Herkel acts made unlawful under Title VII. 1

Faircloth asserted that his sexual relationship with Thompson was unwelcome, that

the only way to stop her from making his life difficult at work was to continue to

have sexual relations with her.

                                                B.




      1
          Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
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      Faircloth brought this action against Herkel pursuant to Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2(a)(1) and 3(a). Following

discovery, Herkel moved the District Court for summary judgment. The court

granted the motion for summary judgment, concluding that: (1) Faircloth’s sexual

harassment claim was time-barred; (2) he failed to show that the reason Herkel

gave for terminating him—that it was eliminating his positions as District Manager

and General Manager of the Warner Robins store—was a pretext for sex

discrimination; and (3) he did failed to establish a prima facie case of retaliation.

      Faircloth appeals the court’s judgment. In his brief on appeal, he does not

expressly address the District Court’s conclusion that his sexual harassment claim

was time-barred. Instead, he argues that he made out a claim for sexual

harassment because he continued an unwelcome sexual relationship with

Thompson, because she did not bother him when he did so. He

argues that summary judgment was inappropriate on his sex discrimination and

retaliation claims because material issues of fact remain to be litigated.

                                          II.

      We review a summary judgment de novo, considering the evidence in the

light most favorable to the non-moving party. Brooks v. Cnty. Comm’n of

Jefferson Cnty., 

, 1161-62 (11th Cir. 2006). Summary judgment is

appropriate if the movant shows that no genuine issue of material fact exists, and


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that it is entitled to judgment as a matter of law. Fed. R.Civ. P. 56(a). A “mere

scintilla” of evidence supporting the opposing party’s position will not suffice.

Brooks, 446 F.3d at 1162. With these standards in hand, we address Faircloth’s

three Title VII claims.

                                          A.

      To prosecute a Title VII claim, the plaintiff must first exhaust his

administrative remedies, beginning with the filing of a charge of discrimination

with the EEOC. Wilkerson v. Grinnell Corp., 

, 1317 (11th Cir.

2001). In Georgia, a plaintiff must file the charge of discrimination within 180

days after the alleged unlawful employment practice occurred. Id. In determining

whether a claim was timely filed, it is irrelevant that some of the acts making up

the claim occurred outside the statutory time period; if at least one act contributing

to the claim occurred within the filing period, all of the acts may be considered for

purposes of determining liability. See Nat’l R.R. Passenger Corp. v. Morgan, 

, 117, 

, 2074, 

 (2002).

      Assuming that Faircloth’s brief challenged the District Court’s

determination that his sexual harassment claim was time-barred, we conclude that

the determination was proper. Faircloth filed his EEOC charge on December 10,

2008. To avoid being time-barred, he had the burden of showing that some

incident of harassment occurred on or after June 10, 2008. Wilkerson, 270 F.3d at


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1317. He failed to do so; hence, the court properly granted Herkel summary

judgment on his sexual harassment claim. See Jackson v. Seaboard Coast Line

R.R. Co., 

, 1010 (11th Cir. 1982).

                                          B.

      Title VII prohibits an employer from discharging any individual, or

otherwise discriminating against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of his sex. 42 U.S.C.

§ 2000e-2(a)(1). If a Title VII plaintiff establishes a prima facie case of sex

discrimination, and the employer articulates “some legitimate, nondiscriminatory

reason” for the adverse employment action, the plaintiff may then show that the

employer’s proffered reason was a pretext for discrimination. See McDonnell

Douglas Corp. v. Green, 

, 802, 804, 

, 1824–25, 

 (1973). “[A] reason cannot . . . be ‘a pretext for discrimination’

unless it is shown both that the reason was false, and that discrimination was the

real reason.” St. Mary’s Honor Ctr. v. Hicks, 

, 515, 

,

2752, 

 (1993) (emphasis in original).

      A plaintiff may establish pretext by demonstrating that the employer offered

inconsistent reasons for the challenged employment action. Tidwell v. Carter

Products, 

, 1428 (11th Cir. 1998). However, the fact that the

employer offers an additional, and not necessarily inconsistent, reason for an


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employment decision does not necessarily suggest pretext if both of the employer’s

reasons are consistent. Id. We have found insufficient evidence of pretext where

an employer simply offered additional reasons for its decision, without disclaiming

any previous reasons it provided. See id. at 1424–28 (employer disclaimed a

reliance on performance and asserted it terminated employee based on a reduction

in workforce, but later contended that it also considered performance); Zaben v.

Air Prod. & Chem., Inc., 

, 1454, 1458–59 (11th Cir. 1997)

(employer disclaimed reliance on seniority and asserted it terminated employee

based on a reduction in workforce, but later contended it also relied on seniority

when all electricians were equally qualified).

       Here, the court did not err in concluding that Faircloth failed to present

evidence from which a jury could conclude that Herkel’s real reason for firing him

was sex discrimination. First, the fact that LaPerchia stated that Herkel fired him

for economic reasons and later provided the EEOC with an additional reason for

terminating him2 did not, by itself, establish pretext. While the identification of

inconsistencies in an employer’s testimony can be evidence of pretext, Herkel’s

reasons for terminating Faircloth were not necessarily inconsistent, because both


       2
          In a letter to the EEOC, Herkel wrote that “in October 2008, following a steady decline
in Mre. Faircloth’s production and reports of Mr. Faircloth’s mistreatment of his employees, a
decision was made to eliminate Mr. Faircloth’s position.” The letter noted that Herkel had
received complaints from employees that Faircloth was verbally abusive. Also, after his first 18
months at the Warner Robbins store, his production declined significantly, and he failed to meet
stated goals and expectations.
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the economy and his poor performance could have contributed towards his

termination. See Zaben, 129 F.3d at 1458 (finding no pretext when employer gave

different, but not necessarily inconsistent, reasons for employee’s discharge).

      Evidence that Faircloth may have been a good employee also did not

establish pretext because whether or not he was a good employee was irrelevant to

whether his position was terminated due to economic reasons. Finally, even if

evidence showing that Herkel attempted to find replacements for Faircloth as

General Manager of the Warner Robins store and District Manager is accepted as

true, that did not show pretext because it did not necessarily suggest that the real

reason for his termination was his sex. See Hicks, 509 U.S. at 515, 113 S.Ct. at

2752 (holding that showing that employer’s nondiscriminatory reason was false

does not compel a finding of pretext).

      The only evidence tending to show that sex discrimination was the real

reason for his firing was that Thompson took over some of his duties as General

Manager of the Warner Robins store. At best, this evidence constituted a scintilla,

and was insufficient to enable a reasonable jury to find that Herkel terminated

Faircloth because of his sex.

                                          C.

      Title VII makes it unlawful for an employer to retaliate against an employee

because he has opposed an unlawful employment practice. Faircloth identifies


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three separate actions he took in opposing Herkel’s employment practices as

discriminatory: (1) his complaint to LaPerchia about Thompson’s sexual

harassment; (2) his EEOC charge; and (3) his complaint to LaPerchia about

Thompson’s use of the “N-word” in referring to black employees and her

discrimination against them in permitting time off. 42 U.S.C. § 2000e-3(a).

      Faircloth had the burden of establishing a prima facie case of retaliation.

Pennington v. City of Huntsville, 

, 1266 (11th Cir. 2001). To

establish a prima facie case, he could show “(1) that he engaged in statutorily

protected activity; (2) he suffered a materially adverse action; and (3) there was a

causal connection between the protected activity and the [materially] adverse

action.” Howard v. Walgreen Co., 

, 1244 (11th Cir. 2010) (citation

omitted).

      The third prong, causation, is construed broadly so that a plaintiff merely has

to prove that the protected activity and the negative employment action were not

completely unrelated. Pennington, 261 F.3d at 1266. The length of time between

the protected activity and the adverse action is considered in this analysis.

Maniccia v. Brown, 

, 1369–70 (11th Cir. 1999). A period as long as

one month between a protected activity and an adverse action is not too protracted

to infer causation based on temporal proximity; a three-month period between a

protected activity and an adverse action, though, cannot alone establish causation.


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See Wideman v. Wal-Mart Stores, 

, 1457 (11th Cir.1998) (one-

month period sufficient); Thomas v. Cooper Lighting, 

, 1364 (11th

Cir. 2007) (three-month period insufficient).

       Faircloth’s complaint about Thompson’s sexual harassment does not

establish causation, in part because he was unable to provide the date or even the

month he complained to LaPerchai about her acts of harassment. 3 As such, he

failed to demonstrate that there was a less than three-month gap between his

complaint and his termination and, therefore, cannot establish causation based on

temporal proximity. See Thomas, 506 F.3d at 1364 (deeming a three to four month

gap between the statutorily protected expression and the adverse employment

action insufficient to infer causation based on temporal proximity). Nor could

Faircloth demonstrate causation between the date of his filing of the EEOC charge

and the date of his termination, for he was fired before he filed the EEOC charge.

       In sum, summary judgment was appropriate on Faircloth’s retaliation claim;

a jury could not reasonably find causation based on temporal proximity.

       AFFIRMED.




       3
          The same is true regarding his complaint to LaPerchia of Thompson’s use of the “N-
word” or the other allegedly discriminatory treatment of black employees.
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