Pape Tamba v. Publix Super Markets, Inc.

P
         USCA11 Case: 19-14108   Date Filed: 11/20/2020   Page: 1 of 17



                                                      [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                               No. 19-14108
                           Non-Argument Calendar
                         ________________________

                    D.C. Docket No. 2:18-cv-00392-KOB



PAPE TAMBA,

                                        Plaintiff-Counter Defendant-Appellant,

versus

PUBLIX SUPER MARKETS, INC.,

                                        Defendant-Counter Claimant-Appellee.

                         ________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
                        ________________________

                            (November 20, 2020)

Before GRANT, LUCK, and LAGOA, Circuit Judges.

LAGOA, Circuit Judge:
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      Pape Tamba appeals the district court’s order granting summary judgment in

favor of Publix Super Markets, Inc. on his workplace discrimination claim and

Publix’s breach of contract counterclaim. For the following reasons, we affirm the

district court’s order granting summary judgment.

I.    FACTUAL AND PROCEDURAL HISTORY

      Tamba, an African-American man born in Senegal, initially worked as a

forklift operator for Publix in Lakeland, Florida. In 2016, Tamba applied for a

“Truck Driver/Truck Driver Trainee” opening with Publix at its warehouse and

distribution center in McCalla, Alabama. Although the truck driver and truck driver

trainee positions were grouped together in the application, each position entails

different duties, responsibilities, and compensation. Truck drivers make outbound

deliveries from Publix’s McCalla facility to its stores. Truck driver trainees, by

comparison, perform “spotter duties” and move and maintain tractors and trailers

within the McCalla facility. When a truck driver position opens, a truck driver

trainee usually fills it. Generally, Publix pays its truck drivers $21.85 per hour and

its truck driver trainees $16.79 per hour.

      Publix accepted Tamba’s application, and both parties signed a Job Offer

Acceptance and Commitment Form for Truck Drivers and Truck Driver Trainees

(“Commitment Form”). The Commitment Form stated that Tamba was hired as a

truck driver—not a truck driver trainee—even though Publix intended to hire Tamba


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as a truck driver trainee. The parties also signed a Relocation Package Repayment

Agreement (“Relocation Agreement”). Under the Relocation Agreement, Publix

agreed to compensate Tamba for his relocation costs in moving to McCalla,

Alabama. Tamba, in turn, agreed that if he was terminated by Publix for any reason

within one year, he would reimburse his relocation benefits. Notably, the Relocation

Agreement identified Tamba as a truck driver trainee. Tamba’s relocation benefits

ultimately totaled $15,246.57.

      After relocating to McCalla, Tamba allegedly experienced discrimination

based on his race and national origin. According to Tamba, at an April 2017 staff

meeting, Publix employees “began laughing at [his] accent” and repeatedly asked

Tamba “where [he] was from.” Tamba also alleged that Paul Chambers, the dispatch

superintendent, asked him how he became a truck driver when “you have to be at

least ten years in [the] Publix warehouse” to become a truck driver.

      Around this time, Publix became aware that Tamba was erroneously classified

and compensated as a truck driver even though Tamba had only trained, visited store

locations, and performed spotter duties during his McCalla tenure. Accordingly,

Publix reduced Tamba’s compensation to a truck driver trainee wage. Tamba

complained about his reduced wage and discriminatory treatment to Publix’s Human

Resources department.




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      On June 8, 2017, Tamba caused an accident at the McCalla facility. As

evidenced on surveillance footage, Tamba backed his tractor and trailer into a return

center dock at 11:33 p.m. He shut off his tractor’s engine, exited the tractor, and

went into the return center. Because Tamba forgot to set the parking brake before

exiting the tractor, his tractor and trailer rolled forward and hit another trailer,

causing damage to both trailers. A few minutes later, Tamba exited the return center

and observed the damage caused by the accident. Tamba then backed up his trailer

and tractor into the loading dock, further inspected the damage, entered the other

tractor, and drove that tractor to another location in the facility. As the district court

observed, after approximately forty minutes, “Tamba drove his tractor back to the

damaged trailer, realigned the damaged trailer, and backed it into place. The relevant

surveillance footage ends there.”

      Later in his shift, Tamba reported the incident to Deonta Harvard, the return

center lead. In an incident report, Tamba stated “I was doing the post trip inspection

and I found damage on the front and [right] side of the tractor. I may [have] hit

something or I was hit by someone. I immediately advise[d] the return center lead

person.” Harvard informed Godfrey Saunders, the return center manager, of the

accident in an email, stating that when Tamba “went outside to inspect his [tractor]

and noticed that the front was damaged that wasn’t there at the beginning of the shift.

[Tamba] noted that he did not know his truck was damaged or when it actually


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happened.” Another supervisor informed Saunders that Harvard “said that [Tamba]

was doing his post trip inspection when he noticed the damage. Tamba said that he

didn’t notice anything when he did his pre-trip inspection, so it must have happened

on his shift. . . . He didn’t notice anything when coming back out.”

       According to its employee handbook, Publix does not accept “[d]ishonesty of

any kind.” In fact, dishonesty alone may lead to employment termination. On June

9, 2017, Tamba met with Chambers and Saunders. After management reviewed the

reports and surveillance footage, Tamba’s employment was terminated for

dishonesty. Although his employment was terminated within one year of relocating

to McCalla, Tamba did not reimburse his relocation benefits.

       Tamba sued Publix for race and national origin discrimination under Title VII

of the Civil Rights Act of 1964 and 42 U.S.C. § 1981.1 Tamba alleged that Publix

held him to a higher standard than white employees who had similar accidents and

had completed accident reports. Tamba also alleged that Publix employees mocked

his accent and asked where he was from, “reflecting that he was viewed as ‘different’

or ‘other’ than the white non-immigrant employees.” Publix countersued Tamba




       1
       Tamba also sued Publix for retaliation and breach of contract, but abandoned these claims
below. We therefore do not address them.


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and alleged that he breached the Relocation Agreement by failing to reimburse his

relocation benefits.2

       Publix moved for summary judgment. In relevant part, it argued that Tamba

could not make out a prima facie case of discrimination because Tamba could not

identify similarly situated employees outside his protected class who were treated

more favorably by Publix. Publix further argued that Tamba was terminated for

dishonesty, which is a legitimate, non-discriminatory reason for employment

termination. Although Tamba argued that this was pretext, Publix contended that

Tamba could not provide any evidence that he did not behave dishonestly or prove

that Publix did not rely on a good faith belief that he behaved dishonestly. As to its

breach of contract counterclaim, Publix argued that it had a valid contract with

Tamba, that Tamba was terminated within a year of receiving his relocation benefits,

and that after being terminated, Tamba never reimbursed Publix the $15,246.57 of

relocation benefits. As such, Publix asserted that, as a matter of law, Tamba

breached the Relocation Agreement.

       In response, Tamba argued that summary judgment was inappropriate. In

relevant part, Tamba asserted that he could identify two comparators outside his

protected class that were treated more favorably: employees XX and YY. Tamba


       2
         Publix also countersued Tamba for unjust enrichment. The facts of the unjust enrichment
counterclaim are not relevant to this appeal, as the district court dismissed the counterclaim for
lack of subject matter jurisdiction.
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contended that XX, a white non-immigrant employee, damaged a Publix trailer but

failed to file an incident report. Tamba argued that “[p]resumably XX went to work

the next day despite his failure to report.” Despite the property damage and failure

to file an incident report, Tamba noted, the record did not demonstrate that

management inspected surveillance footage of XX’s accident.          Instead, XX’s

employment continued, while Tamba’s employment was terminated, which,

according to Tamba, evidenced discriminatory treatment. Tamba also identified

YY, an African-American non-immigrant employee, who also damaged a trailer.

Similar to XX, Tamba contended that the record did not show that management

inspected surveillance footage of YY’s accident or that YY was “charged” with

dishonesty.   Thus, Tamba argued that because XX and YY were sufficient

comparators, he could make out a prima facie case of discrimination.

      Additionally, Tamba claimed that Publix’s purported justification for his

termination was pretextual. As proof of pretext, he argued that Chambers and

Saunders provided different reasons for his termination, noting that Chambers

testified that Tamba was terminated because he failed to report the accident while

Saunders testified that Tamba was terminated because Tamba stated in his incident

report that he “may” have hit something. Tamba further argued—broadly and

without record citations—that Publix’s purported reason for his termination was

pretextual because Publix had “opted to demote a dishonest person” or overlook


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“non-immigrant white employees’ failure to write any incident reports after

damaging Publix property.” He also asserted that Harvard, an African-American

non-immigrant, was allegedly abusive to employees but was only suspended—not

terminated—by Publix.      Because Tamba’s employment was terminated, but

Harvard’s employment was only suspended, Tamba argued that Publix engaged in

discriminatory conduct. As for Publix’s breach of contract counterclaim, Tamba

argued that because Publix failed to hire him as a truck driver under the Commitment

Form, Tamba need not perform under the Relocation Agreement.

      On September 20, 2019, the district court granted summary judgment in favor

of Publix on Tamba’s discrimination claim and Publix’s breach of contract

counterclaim.   In addressing Tamba’s discrimination claim, the district court

determined that he did not state a prima facie case of discrimination nor offer

circumstantial evidence that Publix terminated his employment because of race or

national origin discrimination. Notably, the district court concluded that XX and

YY were not proper comparators. As to XX, the district court explained the record

only demonstrated “that XX was somehow associated with a damaged” a trailer and

noted “[t]he evidence regarding XX end[ed] there.” The district court clarified that

Tamba was fired for dishonesty, not for damaging property. Therefore, because

Tamba did not present evidence that XX acted dishonestly, the district court

determined that XX could not serve as a proper comparator. As for YY, the district


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court concluded that the record did not contain any evidence of this employee.

Therefore, the district court ruled that Tamba did not present a prima facie case of

discrimination.

      The district court then determined that Tamba did not present any

circumstantial evidence that Publix terminated him because of race or national origin

discrimination. In fact, the district court stated that Tamba did not present any

evidence disputing that he “was dishonest or, at the very least, . . . that Publix

reasonably determined that [he] was dishonest.” Accordingly, the district court

granted summary judgment in favor of Publix on the discrimination claim.

      As for Publix’s breach of contract counterclaim, the district court stated that

the Relocation Agreement was a valid contract and that, under the agreement, Tamba

was required to reimburse Publix for the relocation benefits if he was terminated

within the year. Although Tamba argued that Publix breached the Commitment

Form, the district court concluded that even if Publix breached the Commitment

Form, “no evidence shows how Publix’s breach of the Commitment Form would

affect Mr. Tamba’s obligations under the [Relocation] Agreement.” Therefore, the

district court granted summary judgment in favor of Publix on its breach of contract

counterclaim. Tamba filed a timely notice of appeal.

II.   STANDARD OF REVIEW




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       “We review the district court’s grant of summary judgment de novo.”

Maynard v. Bd. of Regents of Div. of Univs. of Fla. Dep’t of Educ., 

342 F.3d 1281

,

1288 (11th Cir. 2003).

III.   ANALYSIS

       On appeal, Tamba raises two issues: (1) whether the district court erred in

granting summary judgment in favor of Publix on Tamba’s discrimination claim;

and (2) whether the district court erred in granting summary judgment in favor of

Publix on its breach of contract counterclaim. We discuss each issue in turn.

       A.      Race and National Origin Discrimination Claim

       Title VII prohibits an employer from discharging or otherwise discriminating

against an employee based on the employee’s “race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e-2(a)(1).        Similarly, 42 U.S.C. § 1981 “prohibits

intentional race discrimination in the making and enforcing of . . . private contracts,

including employment contracts.” Ferrill v. Parker Grp., Inc., 

168 F.3d 468

, 472

(11th Cir. 1999). “The test for intentional discrimination in suits under § 1981 is the

same as the formulation used in Title VII discriminatory treatment cases.”

Id. To survive summary

judgment on a discrimination claim based on

circumstantial evidence, an employee generally must satisfy the burden-shifting

framework established by McDonnell Douglas Corp. v. Green, 

411 U.S. 792

, 802

(1973). 

Maynard, 342 F.3d at 1289

. Under this framework, the employee has the


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initial burden to establish a prima facie case of discrimination by proving that: (1)

he is a member of a protected class; (2) he was qualified for the job; (3) he suffered

an adverse employment action; and (4) “similarly situated employees outside of the

protected class were treated differently.” Holland v. Gee, 

677 F.3d 1047

, 1055 (11th

Cir. 2012). Under the similarly situated requirement, the employee must prove that

he and his comparators are “similarly situated in all material respects.” Lewis v. City

of Union City, 

918 F.3d 1213

, 1227–28 (11th Cir. 2019) (en banc). This means that

the employee and his comparators must have been engaged in the same basic conduct

and subjected to the same work rules.

Id. For example, if

an employee was

terminated for violating an employer’s dishonesty policy, the employee’s similarly

situated comparators must have been found to have violated the employer’s

dishonesty policy as well. See, e.g., Willis v. Publix Super Markets, Inc., 619 F.

App’x 960, 962 (11th Cir. 2015).

      If the employee makes out his prima facie case of discrimination, the burden

shifts to the employer to proffer a “legitimate, nondiscriminatory reason for its

decision.” 

Holland, 677 F.3d at 1055

(quoting Wilson v. B/E Aerospace, Inc., 

376 F.3d 1079

, 1087 (11th Cir. 2004)). “If such reasons are identified, [the employee]

then bears the ultimate burden of proving them to be a pretext for” discrimination.

Damon v. Fleming Supermarkets of Fla., Inc., 

196 F.3d 1354

, 1361 (11th Cir. 1999).

In cases were an employee was discharged for violating a work rule, pretext may be


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established when the employee “submits evidence (1) that [he] did not violate the

cited work rule, or (2) that if [he] did violate the rule, other employees outside the

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

Id. at 1363.

        Aside from the McDonnell Douglas framework, however, an employee can

still survive summary judgment by presenting “circumstantial evidence that creates

a triable issue concerning the employer’s discriminatory intent.” Smith v. Lockheed-

Martin Corp., 

644 F.3d 1321

, 1328 (11th Cir. 2011). “A triable issue of fact exists

if the record, viewed in a light most favorable to the plaintiff, presents ‘a convincing

mosaic of circumstantial evidence that would allow a jury to infer intentional

discrimination by the decisionmaker.’”

Id. (footnote omitted) (quoting

Silverman v.

Bd. of Educ., 

637 F.3d 729

, 734 (7th Cir. 2011)). The defendant could point to “(1)

suspicious timing, ambiguous statements . . . , and other bits and pieces from which

an inference of discriminatory intent might be drawn, (2) systematically better

treatment of similarly situated employees, and (3) that the employer’s justification

is pretextual.” Lewis v. City of Union City, 

934 F.3d 1169

, 1185 (11th Cir. 2019)

(quotation marks omitted and alteration in original).

        Tamba argues that the district court erred in granting summary judgment on

his race and national origin discrimination claim for several reasons. First, he argues

that he established a prima facie case of race and national origin discrimination,


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asserting that XX, a white non-immigrant, is a proper comparator under the

McDonnell Douglas framework. Tamba claims that XX similarly damaged property

but failed to file an incident report, while Tamba did file a report. Tamba notes that

the record does not show Publix investigated surveillance footage of XX’s accident

and that XX was not terminated by Publix. Second, Tamba argues that Publix’s

reason for terminating his employment was pretextual. He argues—broadly and

without record citations—that while dishonesty is a legitimate reason for

employment termination, at times Publix opted to demote dishonest persons or

overlook white non-immigrant employees who failed to complete incident reports

after damaging Publix property. He also argues that a jury should determine whether

he acted dishonestly and whether Publix’s proffered reason for his termination is

valid. And third, stepping aside from McDonnell Douglas, Tamba contends that

circumstantial evidence precludes summary judgment. He argues that Harvard, an

African-American non-immigrant, was abusive to employees and was suspended,

not terminated. Because Tamba was terminated, not suspended, he argues that this

shows that Publix treated Harvard more favorably. Tamba also “suspects” that

Chambers was the ultimate decisionmaker and intentionally discriminated against

him.

       We disagree with Tamba’s arguments. First, Tamba has not established a

prima facie case of discrimination because he cannot identify similarly situated


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comparators. See 

Lewis, 918 F.3d at 1227

–28. Tamba and XX are not similarly

situated in all material respects. The record evidence only demonstrates that

Tamba—and not XX—was terminated for dishonesty, not for damaging property.

Moreover, a review of the record shows that XX was found to be “[n]ot at fault” for

his property damage while Tamba was at fault for his property damage. Crucially,

Tamba needed but failed to prove that XX was also disciplined for dishonesty. See

Willis, 619 F. App’x at 962. Accordingly, they were not proper comparators.

Because Tamba failed to prove this, he cannot establish a prima facie case of

discrimination and summary judgment was properly granted.

      Second, even if Tamba could establish a prima facie case of discrimination,

he cannot establish that Publix’s purported reason for his employment termination

was pretextual. Tamba failed to submit any evidence that he “did not violate”

Publix’s dishonesty rule or that “other employees outside [his] protected class . . .

engaged in similar acts” but “were not similarly treated.” See 

Damon, 196 F.3d at 1363

. Accordingly, Tamba cannot establish that Publix’s proffered reason for his

termination was pretextual.

      And third, Tamba failed to present circumstantial evidence of discrimination

to overcome summary judgment. Tamba’s argument that Harvard’s misconduct and

suspension is circumstantial evidence is unavailing as Harvard’s alleged misconduct

was abuse of an employee and an ethical violation. Moreover, Tamba failed to


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present evidence in the record demonstrating that this was systemically better

treatment or pretext. 

Lewis, 934 F.3d at 1185

.          Additionally, Tamba’s mere

suspicion that Chambers is the ultimate decisionmaker also fails to present a

“convincing mosaic” that Publix intentionally discriminated against Tamba. See

Smith, 644 F.3d at 1328

. While Tamba “suspects” that Chambers was involved, he

fails to point to anything in the record that would support a reasonable inference that

Chambers was the true decisionmaker. Tamba failed to show “(1) suspicious timing,

ambiguous statements . . . , and other bits and pieces from which an inference of

discriminatory intent might be drawn, (2) systematically better treatment of similarly

situated employees, and (3) that the employer’s justification is pretextual.” 

Lewis, 934 F.3d at 1185

. Therefore, the district court properly granted summary judgment

in favor of Publix on Tamba’s discrimination claim.

      B.      Breach of Contract Claim

      We now turn to Publix’s breach of contract counterclaim. Alabama and

Florida law share similar elements of a breach of contract claim. To establish a

breach of contract claim, a party must show: (1) the existence of a contract; (2) a

breach of that contract; and (3) damages. Compare S. Med. Health Sys., Inc. v.

Vaughn, 

669 So. 2d 98

, 99 (Ala. 1995), with Rollins, Inc. v. Butland, 

951 So. 2d 860

,

876 (Fla. Dist. Ct. App. 2006).




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      Tamba argues that the district court erred in granting summary judgment by

largely echoing the argument he made before the district court, i.e., the Relocation

Agreement and Commitment Form should be read together, and because Publix

failed to perform under the Commitment Form, Tamba should not be forced to

perform under the Relocation Agreement.          However, Tamba also advances

arguments for the first time on appeal claiming that he was misled into signing the

documents and that a valid contract between the parties might not have been formed.

      We are not persuaded by Tamba’s arguments. First, we note our longstanding

precedent holds that a party cannot raise an argument for the first time on appeal.

See Access Now, Inc. v. Sw. Airlines Co., 

385 F.3d 1324

, 1331 (11th Cir. 2004).

Thus, we decline to consider Tamba’s arguments raised for the first time on appeal—

that he was misled into signing the documents and that a valid contract might not

have been formed. See

id. Second, after reviewing

the district court’s summary judgment order, we

cannot find a genuine issue of material fact as to parties’ obligations under the

Relocation Agreement and Commitment Form. We agree with the district court that

even if Publix failed to perform under the Commitment Form, that failure to perform

did not affect Tamba’s obligations under the separate Relocation Agreement. The

record makes clear that Publix provided $15,246.57 in relocation benefits to Tamba,

that Tamba was fired within a year of relocating to McCalla, and that Tamba did not


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reimburse Publix. Accordingly, because no genuine issue of material fact exists as

to Publix’s breach of contract counterclaim, we affirm the district court’s grant of

summary judgment in favor of Publix on the claim.

IV.   CONCLUSION

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

summary judgment in favor of Publix on both the discrimination claims and the

breach of contract counterclaim.

      AFFIRMED.




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