Case: 13-12235       Date Filed: 10/23/2013   Page: 1 of 9




                                                                [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-12235
                            Non-Argument Calendar
                          ________________________

                      D.C. Docket No. 0:12-cv-60110-RSR



PIERTUS ARISTYLD,

                                                                  Plaintiff-Appellant,

                                         versus

THE CITY OF LAUDERHILL,
a Florida municipal corporation,

                                                                 Defendant-Appellee.

                          ________________________

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

                               (October 23, 2013)

Before DUBINA, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:
                Case: 13-12235        Date Filed: 10/23/2013       Page: 2 of 9


       Appellant Piertus Aristyld, a Haitian, appeals the district court’s grant of

summary judgment to his former employer, the City of Lauderhill, in his suit

alleging, among other things, employment discrimination on the basis of his

national origin, and retaliatory termination following his discrimination

complaints.1

                                                I.

       The record on appeal shows that Aristyld began employment as a part-time

Maintenance Worker for the City in 2006, applied for several full-time

opportunities that were ultimately not filled, and received multiple complaints

about the conditions in the bathrooms and park recreation areas he was required to

clean. He made several complaints about the manner in which he was treated by

his supervisors, while he also received verbal and written warnings about his

conduct. Following these complaints and warnings, he was terminated in 2010.

       Aristyld filed suit against the City in 2011, alleging discriminatory failure-

to-promote and termination on the basis of his national origin and age, retaliatory

harassment, and retaliatory termination. He raised his claims under Title VII of the

Civil Rights Act, the Age Discrimination in Employment Act, and the Florida Civil




1
 Aristyld does not expressly challenge, on appeal, the dismissal of his Florida Civil Rights Act
claim, his retaliatory harassment claim, and his Age Discrimination in Employment Act claims
for failure-to-promote and retaliatory termination. Accordingly he has abandoned those claims
on appeal. Timson v. Sampson, 

, 874 (11th Cir. 2008).
                                                2
               Case: 13-12235     Date Filed: 10/23/2013    Page: 3 of 9


Rights Act. The district court ultimately granted the City’s motion for summary

judgment on all counts in the complaint.

      On appeal, Aristyld argues that the district court erred in granting summary

judgment to the City on his national origin discrimination failure-to-promote claim,

as it applied the wrong legal standard in finding that his claim failed for a lack of a

comparator for the required disparate treatment analysis. He contends, referencing

Title VII, that he provided sufficient circumstantial evidence of discriminatory

intent, and that he demonstrated that the City’s purported reasons for terminating

him were pretextual. Aristyld also argues that the district court erred in granting

summary judgment on his Title VII retaliatory termination claim, as he complained

of national origin discrimination before the City finalized its decision to terminate

him without any investigation into his complaint. The City had a duty to conduct a

reasonable investigation into the discrimination claims, and its failure to do so

rendered it liable for the discrimination he suffered.

                                           II.

      We review a district court’s grant of summary judgment de novo, viewing all

evidence and drawing all reasonable inferences in a light most favorable to the

non-moving party. Vessels v. Atlanta Indep. Sch. Sys., 

, 767 (11th

Cir. 2005). Summary judgment is appropriate when the record shows that “there is

no genuine issue as to any material fact, and the moving party is entitled to a


                                           3
              Case: 13-12235      Date Filed: 10/23/2013   Page: 4 of 9


judgment as a matter of law.” Id. (citing Fed.R.Civ.P. 56(c)). Bare and self-

serving allegations when the plaintiff has no personal knowledge are inadequate to

carry the plaintiff’s burden on summary judgment. Stewart v. Booker T.

Washington Ins., 

, 851 (11th Cir. 2000). Similarly, “[a] mere

scintilla of evidence in support of the nonmoving party will not suffice to

overcome a motion for summary judgment.” Young v. City of Palm Bay, Fla., 

, 860 (11th Cir. 2004).

      It is unlawful under Title VII for an employer to “discharge any individual,

or otherwise discriminate against any individual with respect to his compensation,

terms, conditions, or privileges of employment, because of such individual’s . . .

national origin.” 42 U.S.C. § 2000e-2(a). The plaintiff bears the burden of

proving unlawful discrimination at every stage of the proceeding. E.E.O.C. v.

Joe’s Stone Crabs, Inc., 

, 1273 (11th Cir. 2002). A plaintiff may

establish discrimination through direct or circumstantial evidence. Id. at 1272.

When direct evidence is unavailable, the plaintiff must submit circumstantial

evidence sufficient to create a jury question. Id.

      We often evaluate Title VII summary judgment motions under the

framework of McDonnell-Douglas Corp. v. Green, 

, 

(1973), and Texas Dep’t of Community Affairs v. Burdine, 

, 

 (1981). In order to establish a prima facie case for a discriminatory failure-


                                          4
               Case: 13-12235     Date Filed: 10/23/2013    Page: 5 of 9


to-promote claim, the plaintiff may demonstrate that: (i) he belonged to a protected

class; (ii) he was qualified for and applied for a position that the employer was

seeking to fill; (iii) despite qualifications, he was rejected; and (iv) the position was

filled with an individual outside the protected class. See Vessels, 408 F.3d at 768.

      Similarly, where the plaintiff alleges a discriminatory discharge, the plaintiff

may establish a prima facie case by showing that: (1) he was a member of a

protected class, (2) he was qualified for the job, (3) he suffered an adverse

employment action, and (4) a similarly situated individual outside the protected

class was treated more favorably. See Holifield v. Reno, 

, 1562

(11th Cir. 1997). We require that the fourth prong be established with evidence of

a comparator who is “similarly situated in all relevant respects” to the plaintiff.

Knight v. Baptist Hosp. of Miami, Inc., 

, 1316 (11th Cir. 2003)

(internal quotation marks omitted). To establish a comparator in the disciplinary

context, the quantity and quality of a comparator’s misconduct must be nearly

identical to the plaintiff’s misconduct. Maniccia v. Brown, 

, 1368-

69 (11th Cir. 1999).

      If a plaintiff establishes a prima facie case under McDonnell-Douglas, and

the employer articulates a legitimate, non-discriminatory reason for its actions, the

plaintiff bears the burden of showing by a preponderance of the evidence that the

stated reasons were pretextual and the true motivation was discriminatory. See St.


                                            5
               Case: 13-12235     Date Filed: 10/23/2013    Page: 6 of 9


Mary’s Honor Ctr. v. Hicks, 

, 511, 

, 2749 (1993). We

“evaluate whether the plaintiff has demonstrated 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, 

, 1538

(11th Cir. 1997) (internal quotation marks omitted). If the proffered reason is one

that might motivate a reasonable employer, the plaintiff must meet the proffered

reason “head on and rebut it.” Chapman v. AI Transport, 

, 1030

(11th Cir. 2000) (en banc).

      Moreover, we have stated that “the plaintiff’s failure to produce a

comparator does not necessarily doom the plaintiff’s case.” Smith v. Lockheed-

Martin Corp., 

, 1328 (11th Cir. 2011). Regardless of the outcome of

the McDonnell-Douglas analysis, “the plaintiff will always survive summary

judgment if he presents circumstantial evidence that creates a triable issue

concerning the employer’s discriminatory intent.” Id. We will find a triable issue

of fact exists if, viewed in a light most favorable to the plaintiff, the record presents

“a convincing mosaic of circumstantial evidence that would allow a jury to infer

intentional discrimination by the decisionmaker.” Id. (quoting Silverman v. Bd. Of

Educ., 

, 734 (7th Cir. 2011)).




                                           6
               Case: 13-12235     Date Filed: 10/23/2013    Page: 7 of 9


      In this regard, a plaintiff can present evidence that the decision-maker made

discriminatory remarks. See Damon v. Fleming Supermarkets of Florida, Inc., 

, 1362 (11th Cir. 1999) (holding that supervisor's statement that he

wanted “aggressive, young men” like himself to be promoted was “highly

suggestive circumstantial evidence” of age discrimination). Such remarks are

probative if they illustrate the decision-maker's state of mind at the time that he

made the challenged employment decision. Id. (discussing pretext). On the other

hand, stray remarks that are “isolated and unrelated to the challenged employment

decision” are insufficient in this respect. See Rojas v. Florida, 

,

1342–43 (11th Cir. 2002) (supervisor's statement that another employee did not

deserve her job because she was a woman was not sufficient to show pretext).

      As the district court correctly found below, Aristyld failed to establish a

prima facie case of a discriminatory failure-to-promote on the basis of his national

origin, because he failed to identify a similarly situated individual outside of his

protected class who was treated more favorably. Nor did Aristyld submit evidence

sufficient to raise an inference of discrimination in this respect. Similarly, Aristyld

failed to establish a prima facie case of a discriminatory termination on the basis of

his national originr because – unlike his failure-to-promote claim – he didn’t even

identify a similarly situated individual outside of his protected class he believed

had been treated more favorably. Therefore, we conclude that the district court


                                           7
              Case: 13-12235     Date Filed: 10/23/2013   Page: 8 of 9


properly granted summary judgment to the City on Aristyld’s claims of

discriminatory failure-to-promote and discriminatory termination.

                                         III.

      Title VII prohibits employers from retaliating against employees who have

opposed unlawful practices, as defined in the statute, or participated in proceedings

before agency officials related thereto. See 42 U.S.C. § 2000e-3. In order to

establish a prima facie case of retaliation, a plaintiff may show: (1) he engaged in

statutorily protected conduct; (2) he suffered a materially adverse action; and

(3) there was a causal connection between the protected conduct and the adverse

action. Brungart v. Bellsouth Telecomms., Inc., 

, 798 (11th Cir.

2000). To create a genuine issue of material fact as to the causation element of the

prima facie case, a plaintiff must show that the decision-maker was aware of the

protected conduct at the time of the materially adverse action. Id. at 799. “That

requirement rests upon common sense. A decision maker cannot have been

motivated to retaliate by something unknown to him.” Id.

      We recently recognized a cause of action for retaliatory harassment. Gowski

v. Peake, 

, 1312 (11th Cir. 2012). In order to demonstrate such

harassment, however, a plaintiff must show “that the actions of the defendant[ ]

altered the condition of the workplace, creating an objectively abusive and hostile




                                          8
              Case: 13-12235     Date Filed: 10/23/2013   Page: 9 of 9


atmosphere.” Edwards v. Wallace Cmty. Coll., 

, 1521 (11th Cir.

1995).

      We conclude from the record that the district court properly found that

Aristyld failed to meet his burden to show that the City’s stated non-discriminatory

bases for his termination were pretextual. It also properly rejected Aristyld’s

retaliatory harassment claim. Even if not abandoned, there is no indication that the

actions of the City – such as reprimands – or by individual officials – such as

making isolated comments - rose to the level necessary to support this type of

claim as a matter of law.

      For the aforementioned reasons, we affirm the district court’s grant of

summary judgment.

      AFFIRMED.




                                          9