Case: 17-13531   Date Filed: 06/21/2018   Page: 1 of 8


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-13531
                         Non-Argument Calendar
                       ________________________

                    D.C. Docket No. 1:16-cv-20818-JLK



KAREN TEPPER KEANE,

                                                            Plaintiff-Appellant,

                                  versus

FEDERAL EXPRESS CORPORATION,
EDUARDO E. UTSET,

                                                         Defendants-Appellees.

                       ________________________

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

                              (June 21, 2018)

Before ED CARNES, Chief Judge, JILL PRYOR, and FAY, Circuit Judges.

PER CURIAM:
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       Karen Tepper Keane brought claims for race discrimination and retaliation

under 42 U.S.C. § 1981 against her employer, Federal Express Corporation

(“FedEx”), and her former supervisor, Eduardo Utset. The district court granted

summary judgment for the defendants. This is Keane’s appeal.1

                                               I.

       Keane is a Jewish Caucasian woman. During the events underlying this case

she was a finance manager in FedEx’s Latin American Caribbean Division and a

“distinct minority” in management. Utset is a Hispanic man. He was a managing

director in the Division and supervised Keane from November 2013 to June 2014.

       In September 2013 FedEx posted an opening for a senior manager position.

FedEx policy is to post job openings internally for one week. Employees who seek

a posted job must apply within that period. Keane did not apply. Two employees

did — both of whom are Hispanic — but neither got the job. So FedEx began

soliciting applications from external candidates.

       In November 2013 FedEx reorganized the Division and Utset became

Keane’s supervisor. Keane met with Utset to express interest in the senior

manager job. He told her that she should have applied earlier and that she was


       1
        We recount the facts in the light most favorable to Keane because this case is on appeal
from summary judgment. See Goodman v. Kimbrough, 718 F.3d 1325, 1329 (11th Cir. 2013).


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unqualified because she was not a certified public accountant and lacked revenue

experience. A couple of months later, Keane reiterated her interest in the job, and

Utset reiterated that she should have applied earlier and was unqualified. She

never did apply.

       FedEx ultimately hired Deborah Casanova, an external candidate. She

became senior manager in June 2014 and replaced Utset as Keane’s supervisor.

Casanova is Caucasian. 2 She is also a CPA.

       According to Keane, Casanova and Utset began looking for reasons to fire

her. She points to two events. First, in June 2015, Keane received a “documented

counseling” 3 when FedEx discovered that one of her supervisees, an African

American woman named Betty Harris, had been working outside of the proper job

classification. Keane told Casanova that she had previously attempted to resolve

Harris’ job misclassification by requesting that FedEx promote her. In making

those requests Keane cited only business reasons; she did not assert that FedEx

failed promote Harris on account of her race. Despite Keane’s explanation, her




       2
         Keane argued to the district court that Casanova is “not Caucasian” because “she is
Brazilian-born, raised, educated, and has spent the majority of her career in Brazil.” Casanova,
who presumably knows her own ethnicity better than Keane, filed a sworn statement that she is
“80% Italian, 10% Austrian, and 10% Portuguese,” and attached a FedEx “Personal Information
Screen” listing her race as “white.” Keane does not press the issue on appeal, so it is abandoned.
See AT&T Broadband v. Tech Commc’ns., Inc., 381 F.3d 1309, 1320 n.14 (11th Cir. 2004).
       3
        Under FedEx policy a “documented counseling” involves a counseling session on
proper employment conduct and a notation of that counseling. It is not disciplinary in nature.
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supervisors insisted that she be counseled on the proper steps to place an employee

in the proper classification.

      Second, in July 2015, FedEx disciplined Keane for violating its Information

Security Policy. One of Keane’s duties as finance manager was to approve payroll.

In case she was absent, FedEx policy required another authorized management-

level employee to approve payroll. In this instance, Keane went on vacation and

gave an unauthorized non-management employee her password to approve payroll.

That employee told Casanova, and Human Resources told Casanova to investigate.

      That investigation exposed problems with Keane’s work performance. It

confirmed that she violated FedEx policy by giving her password to an

unauthorized employee. It revealed that she let an employee work remotely

without ensuring that he accurately recorded his time (he did not). And interviews

with Keane’s staff revealed that she used unprofessional language in meetings,

lacked interest in implementing FedEx’s new payroll system, and in one instance

failed to resolve a discrepancy that exposed FedEx to over $50,000 of risk.

      As a result of the investigation, FedEx demoted Keane to a non-management

job. Keane unsuccessfully appealed her demotion through FedEx’s Guaranteed

Fair Treatment process. She then brought suit against FedEx and Utset, alleging

race discrimination and retaliation under 42 U.S.C. § 1981. The district court

granted summary judgment to the defendants, and Keane appealed.

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                                         II.

      We review de novo a district court’s grant of summary judgment. Kernel

Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012). Summary judgment

is appropriate when there is no genuine issue of material fact and the moving party

is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

      Keane contends that the district court erred in granting summary judgment to

defendants on (1) her failure to promote discrimination claim; (2) her claim that

she was demoted due to race discrimination; and (3) her claim that she was

demoted in retaliation for seeking equitable pay for Harris.

                                         A.

      To make out a prima facie case of race discrimination based on a failure to

promote, Keane must establish “she was qualified for and applied for a position.”

Springer v. Convergys Customer Mgmt. Grp., Inc., 509 F.3d 1344, 1347 (11th Cir.

2007). Keane did not apply for the senior manager position. So the district court

properly granted summary judgment to the defendants on that claim.

                                         B.

      Keane contends that the defendants were not entitled to summary judgment

on her claim that she was demoted due to race discrimination. Assuming Keane

established a prima facie case, her contention fails because she has not shown that

FedEx’s reasons for demoting her were pretext for discrimination. See Crawford

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v. Carroll, 529 F.3d 961, 976 (11th Cir. 2008) (“[I]f the plaintiff establishes a

prima facie case, the burden shifts to the employer to articulate some legitimate,

nondiscriminatory reason for the adverse employment action. If the employer does

this, the burden shifts back to the plaintiff to show that the employer’s stated

reason was a pretext for discrimination.”) (citation and quotation marks omitted).

        The defendants articulate several legitimate reasons for demoting Keane:

she gave payroll access to an unauthorized employee; she let an employee work

remotely without ensuring his hours were accurate; and some of her supervisees

said she was a bad leader, acted unprofessionally, and exposed FedEx to financial

risk.

        Keane does not dispute that she violated FedEx policy. Instead she argues

that employees outside her protected class routinely violate FedEx policy without

consequence. But the record shows that FedEx has fired — not just demoted —

several non-Caucasian and non-Jewish employees for violating its policies. So

Keane’s reference to the way FedEx disciplines other employees is unavailing.

And Keane fails to rebut the other reasons the defendants gave for demoting her.

See Chapman v. AI Transp., 229 F.3d 1012, 1024–25 (11th Cir. 2000) (“If an

employer proffers more than one legitimate nondiscriminatory reason, the plaintiff

must rebut each reason to survive a motion for summary judgment.”).




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      Keane also argues that the district court gave insufficient weight to evidence

that she says proves pretext. She points to Utset’s secretary’s allegation that Utset

referred to Keane outside her presence as “La Judia” (Spanish for “the Jew”) and

made “dismissive arm motions” when referring to her that way. The secretary also

stated that she once heard Utset scream “Just write her up,” and when asked why

he was so agitated, Utset responded “La Judia esa” (“that Jewish one”).

      We accept that evidence as true, see Kimbrough, 718 F.3d at 1329, but we

disagree that Utset calling Keane “the Jew” outside her presence proves pretext.

To be sure, that is not a professional way to speak about a colleague. But there is

no evidence of when or how often Utset called Keane “the Jew,” nor is there any

evidence at all linking that remark to Keane’s demotion. So Utset’s remarks would

not permit a reasonable jury to find that the many business reasons the defendants

cite for demoting Keane were pretext.

                                         C.

      To make out a prima facie case of retaliation, Keane must establish that she

engaged in statutorily protected activity, Bryant v. Jones, 575 F.3d 1281, 1307–08

(11th Cir. 2009), which requires “explicitly or implicitly communicat[ing] a belief

that the practice constitutes unlawful employment discrimination.” Furcron v.

Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1311 (11th Cir. 2016). Although Keane

asked FedEx to promote Harris, she cited only business reasons to support her

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request. She did not communicate “explicitly or implicitly” or in any way, shape,

or form that she thought FedEx was underpaying Harris on account of her race. So

the district court properly granted summary judgment to the defendants on Keane’s

retaliation claim.

      AFFIRMED.




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