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March 27, 2026 Get Citation Alerts Download PDF Add Note

Keith Cooper v. Airbus Americas, Inc.

Court of Appeals for the Eleventh Circuit

• Citations: None known
• Docket Number: 25-10378
• Precedential Status: Non-Precedential

• Nature of Suit: NEW

• Opinion

• Authorities (18)

• Cited By (0)

• Summaries (0)

• Similar Cases (515)

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Combined Opinion

USCA11 Case: 25-10378 Document: 18-1 Date Filed: 03/27/2026 Page: 1 of 27

NOT FOR PUBLICATION

In the
United States Court of Appeals
For the Eleventh Circuit

---

No. 25-10378
Non-Argument Calendar

---

KEITH COOPER,
Plaintiff-Appellant,
versus

AIRBUS AMERICAS, INC.,
Defendant-Appellee.

---

Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:23-cv-00309-MU

---

Before ROSENBAUM, JILL PRYOR, and ABUDU, Circuit Judges.
PER CURIAM:
After Keith Cooper was terminated from his position with
Airbus America, Inc., he sued the company, bringing claims for
race discrimination and retaliation under Title VII of the Civil
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2 Opinion of the Court 25-10378

Rights Act of 1964 and 42 U.S.C. § 1981, as well as a retaliation
claim under the Family and Medical Leave Act (“FMLA”). The dis-
trict court granted summary judgment to Airbus on all claims, and
Cooper appealed. After careful consideration, we affirm.
I.
Cooper, a Black man, began working for Airbus in 2019. He
worked at its commercial aircraft production facility in Mobile, Al-
abama, known as the Final Assembly Line (“FAL”). Airbus has two
primary work areas at the FAL: the flightline, where aircraft come
when manufacturing is complete, and the flowline, where the air-
craft building process occurs.
Airbus initially hired Cooper as a corrosion specialist. In this
position, he was responsible for making certain that aircraft were
properly sealed. He would receive work orders and then follow
step-by-step instructions guiding his work on the aircraft.
After Airbus learned that Cooper had an associate’s degree
in applied sciences, it approached him about joining a mentorship
program and applying for a manufacturing engineer (“ME”) posi-
tion. At Airbus, MEs play a critical role in aircraft construction be-
cause they serve as the main interface between the technicians who
carry out the manufacturing process and the technical require-
ments that must be satisfied to ensure the safe production of an
aircraft. To perform this role, MEs must understand Airbus’s sys-
tems and then determine how those systems should be applied to
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25-10378 Opinion of the Court 3

assemble an aircraft. The position is “highly technical.” Doc. 63-5
at 4. 1
Airbus relies on MEs to respond to a variety of issues that
may arise in the manufacturing process. For example, if an aircraft
has a non-conformity—that is, it deviates from the applicable tech-
nical standards—an ME is expected to assess the non-conformity,
create any “specific work orders for FAL rework,” and “estab-
lish/verify the technical content of [the] non-conformit[y].”
Doc. 63-1 at 173. In addition, when there is a change in production,
an ME is expected to “create reports, exchange information[,] and
regularly inform the European manufacturing engineering back of-
fice about” the change. Id. An ME also must “[r]espond[] to tech-
nical questions and explain[] work orders/drawings, especially for
aircraft mechanical related items.” Id. Airbus assigns MEs to posi-
tions throughout the FAL, including in both the flightline and flow-
line areas.2
When hiring an ME, Airbus looks for candidates who have a
combination of relevant experience and education. It prefers MEs
to have at least two years of relevant work experience in a manu-
facturing environment, preferably with an aviation company. It also
prefers for them to have a degree in “Mechanical Engineering,

1 “Doc.” numbers refer to the district court’s docket entries.

2 Airbus treats ME positions in the flightline and flowline areas as equivalent

with no pay difference.
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4 Opinion of the Court 25-10378

Aerospace Engineering, Industrial Engineering, or an equivalent
combination of education and experience.” Id. at 174.
Airbus provides training to new MEs. The training period
lasts up to 18 months, with the actual length of the training de-
pending on an ME’s previous experience. Airbus expects that by the
end of the training period an ME can work autonomously on an
aircraft.
Cooper applied for the Airbus ME position. In Febru-
ary 2021, after completing two rounds of interviews, he was se-
lected for the position. His promotion came with a substantial sal-
ary increase from approximately $35,000 to $75,000 per year.
Around the time he was selected for the ME position,
Cooper contracted COVID-19 and missed six days of work. He re-
quested FMLA leave, which Airbus approved. When Cooper recov-
ered, he returned to work.
As a new ME, Cooper began training. Initially, he was
trained by Airbus employee Reid Stewart. During the training pe-
riod, Stewart repeatedly showed Cooper how to perform tasks that
were part of the ME role. He became concerned that Cooper was
struggling to grasp basic concepts. Cooper confided in other
coworkers that he was not performing well.
Airbus tracked Cooper’s progress during his training. In mid-
May, after Cooper had worked as an ME for about three months,
he met with Stewart and Bruno Fiton, the head of manufacturing
engineering at the FAL facility, about his progress. Stewart and
Fiton assessed Cooper’s familiarity with various ME tasks. For each
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25-10378 Opinion of the Court 5

task, they assigned Cooper a score between one and five. A one
meant that he had never seen the task, a two meant that he needed
to shadow others performing the task, a three meant that he knew
how to perform the task, a four meant that he knew well how to
perform the task, and a five meant that he was an expert. For about
half the tasks, Cooper received a score of three. But for several
tasks, he received scores of one or two. The ratings reflected that
Cooper had never worked on a “concession” and did not know how
to open one. Doc. 63-3 at 16. Fiton chided Stewart for not covering
concessions with Cooper.
Stewart and Cooper’s relationship was strained. Cooper ad-
mitted to Stewart that he accidentally had thrown away a set of
training notes. Stewart told Cooper that this mistake was “unac-
ceptable.” Doc. 63-5 at 66. Cooper responded that Stewart “put too
much pressure on him.” Id.
A few days later, when Cooper was struggling with a task,
Stewart became frustrated. Cooper told Stewart, “If I left town to-
morrow and never came back, nobody would even notice.” Id. at
67. Stewart responded that he would be “very concerned” if that
happened and was “worried” about Cooper. Id. Cooper did not re-
spond. Stewart reported this incident to human resources.
After this incident, Cooper, too, went to human resources.
He emailed human resources specialist Ethan Mattocks with con-
cerns about Stewart and the work environment in the flightline
area. He reported that Stewart was an ineffective trainer who gave
feedback “in an aggressive manner,” leaving Cooper feeling “on
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6 Opinion of the Court 25-10378

edge and uneasy.” Doc. 63-1 at 180. Cooper acknowledged that he
was not progressing but blamed Stewart for being “impatient.” Id.
He said that he felt “excluded from the team and discriminated
against.” Id.
Mattocks investigated Cooper’s report. He and Stephanie
Burt, a human resources director, met with Cooper. Cooper told
them that Stewart and other ME employees regularly shot Nerf
guns at work. He described how on one occasion Stewart held an
“assault-type Nerf gun” up to his head. Id. at 91. Cooper also re-
ported that another ME employee, Alex Tijerina, had called him
“boy” and told him that he acted like a “[B]lack pastor.” Id. at 64–
65. After the investigation, Airbus issued verbal warnings to the em-
ployees who participated in the Nerf gun battles.
Around the same time, another employee complained to hu-
man resources that Cooper made comments about her Vietnamese
nationality and her gender that she found uncomfortable. In inves-
tigating this report, Mattocks learned from other employees that
Cooper sometimes stormed off from conversations and made con-
cerning comments about his own mental state.
After meeting with Mattocks and Burt, Cooper confronted
Stewart. He accused Stewart of “putting too much pressure” on
him, “intimidat[ing]” him, and “terrifying” him. Doc. 63-3 at 19 (ci-
tation modified). After this conversation, Stewart told Airbus that
he no longer wanted to serve as Cooper’s trainer. Airbus agreed
that Stewart would no longer train Cooper.
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25-10378 Opinion of the Court 7

On May 28, about three days after Cooper contacted Mat-
tocks, an incident occurred between Cooper and Tijerina. Cooper
asked Tijerina about the status of an aircraft. Tijerina refused to
help and told Cooper that he was not qualified for the job. Tijerina
yelled and cursed at him for several minutes, saying he was “dumb,
stupid, and uneducated.” Doc. 63-1 at 181. Tijerina mentioned that
he had a friend who wanted a job at Airbus but didn’t get it because
Cooper was hired.
After the confrontation, Cooper reported the incident to hu-
man resources. When Mattocks investigated the incident, other
employees reported that Cooper said Tijerina “is in poor health and
will be dead soon, so [Cooper] won’t have to worry abou[t] it much
longer.” Doc. 63-5 at 73. Cooper denied making this statement.
After the incident with Tijerina, Cooper requested FMLA
leave for anxiety and depression. Airbus allowed him to take leave,
which lasted approximately two-and-a-half weeks. While Cooper
was on leave, Mattocks directed Airbus’s security guards to be on
the lookout for him, explaining that the company had suspended
his badge temporarily while investigating a “workplace verbal ar-
gument.” Doc. 72-1 at 42. Mattocks advised the security guards that
Cooper “did not do anything wrong” but noted that he had left the
facility “in a pretty upset state.” Id. Mattocks said that the company
“[m]ost likely” would allow Cooper to return to work but asked
the security guards to look out for him until a decision was made.
Id. When Cooper completed his leave, Airbus permitted him to re-
turn to work.
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8 Opinion of the Court 25-10378

When Cooper returned to work, he received a return-to-
work expectations letter from Fiton and Mattocks. The letter
stated that they wanted to offer Cooper “a constructive means to
align on a path forward” and “a fresh start” with a new trainer, Ber-
nard Bousquet. Doc. 63-3 at 23. While training with Bousquet,
Cooper would have “weekly training checkpoints to ensure that
[he was] meeting key milestones and to identify areas for support.”
Id. Fiton and Mattocks directed Cooper to raise any concerns about
his professional development directly with his “trainer or a mem-
ber of management.” Id. They reminded him that they expected
“[e]ffective, professional communication.” Id.
Bousquet trained Cooper for several weeks. He was unsatis-
fied with Cooper’s performance. On multiple occasions, Cooper
left the office after making a mistake or was resistant to Bousquet’s
feedback. Bousquet became concerned that Cooper lacked suffi-
cient technical knowledge to perform the ME role. Cooper, in turn,
was unhappy with Bousquet as a trainer. He reported to human
resources that Bousquet called him a “bullshitter” and stated that
he did not “deserve to be out here.” Doc. 63-1 at 109. After com-
plaining to human resources about Bousquet, Cooper requested
additional FMLA leave. Airbus approved the request, and Cooper
was on leave for approximately two weeks.
When Cooper returned to work, Fiton and Mattocks moved
him from the flightline area to the flowline area and placed him on
a performance improvement plan (“PIP”). They told him that after
reviewing his progress with his previous trainers, they determined
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25-10378 Opinion of the Court 9

that he was “not at the level of expectation concerning the basic
tasks [they] would expect to see after 5 months in the role.” Id. at
193.
In the PIP, Fiton and Mattocks identified eleven tasks that
they expected an ME would be able to perform after working for
five months in the flightline area and one month in the flowline
area. The PIP set a schedule over the next five weeks for Cooper to
show that he could perform each task. Fiton and Mattocks advised
that they would meet with Cooper each week to review his pro-
gress.
In the PIP, Fiton and Mattocks noted that Cooper had previ-
ously “engaged in conduct and behavior that need[ed] to be cor-
rected immediately.” Id. at 194. They referenced Cooper’s dispute
with Tijerina and warned that his conduct violated the company’s
values. They also mentioned how Cooper “demonstrated re-
sistance to feedback” when training under Bousquet. Id. They di-
rected him to “behave in a professional cooperative manner with
all Airbus employees, particularly those employees on [his] team.”
Id.
Although the PIP was supposed to run for five weeks, Fiton
and Mattocks could extend this period. The PIP warned that it was
a “final corrective effort” and that if Cooper failed to meet its re-
quirements, Airbus would take “corrective action up to and includ-
ing termination.” Id. at 193. Cooper refused to sign the PIP.
In the flowline area, Airbus assigned Cooper a new trainer,
Eric Crosby. Over the next five weeks, Crosby trained Cooper. Each
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10 Opinion of the Court 25-10378

week, Fiton and Mattocks met with Cooper to review his progress
under the PIP and assign him a score on tasks listed in the PIP, using
the same one-to-five scoring system that Stewart and Fiton had pre-
viously applied. After Cooper’s second week in the flowline area,3
Fiton rated Cooper’s knowledge of the first three tasks identified in
the PIP. He assigned Cooper a score of three for each task, which
meant that Cooper knew how to do the task, and rated his progress
as favorable. After the third week, Fiton assessed Cooper’s
knowledge of the fourth, fifth, and sixth tasks identified in the PIP.
He assigned Cooper a score of three for one task and a score of two
for the remaining two tasks, which meant that Cooper needed
shadowing and additional training on those tasks. Fiton rated
Cooper’s progress as unfavorable. After the fourth week, Fiton
rated Cooper’s progress on the fifth through ninth tasks identified
in the PIP, giving him a score of three on each task, and determined
that he was progressing favorably.
After the fifth week, Fiton considered Cooper’s progress on
the final task identified in the PIP: the ability to release a simple
work order for a simple task. Fiton rated Cooper as a two because
he needed additional shadowing in this area. During their weekly
meeting, Fiton asked Cooper to describe the problem and solution
for the work order that he had completed. Although Cooper was
able to navigate Airbus’s software, he could not fully describe the
underlying issue with the aircraft. Fiton concluded that Cooper had

3 Cooper did not receive any ratings the first week to give him time to settle

into the flowline area.
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25-10378 Opinion of the Court 11

“memorized the process within the software” but did not “demon-
strate an understanding of the aircraft issue that prompted use of
the software in the first place.” Doc. 63-5 at 9. Fiton determined
that Cooper was “still unable to independently manage the critical
analysis required of this role.” Doc. 63-1 at 212. Fiton and Mattocks
informed Cooper that they were extending the PIP.
After the meeting, Fiton and Mattocks were concerned be-
cause, after nearly seven months of training and working with
three different trainers, Cooper did not understand the process be-
hind work orders. They determined that he had a “demonstrated
lack of analytical ability” and “did not foresee that there would
come a time, either weeks or months into the future, that he could
operate autonomously, or be assigned his own aircraft to manage.”
Doc. 63-5 at 9. Fiton and Mattocks consulted with Burt and others
in Airbus leadership, and the company decided to terminate
Cooper’s employment. Mattocks informed Cooper that he was ter-
minated.
Cooper, proceeding through counsel, sued Airbus. He ini-
tially brought race discrimination claims under Title VII and
42 U.S.C. § 1981. After Airbus filed an answer, the magistrate judge 4
entered a scheduling order that set deadlines for the parties to com-
plete discovery and file dispositive motions. Cooper’s attorney
sought to withdraw from the case, and the court granted the mo-
tion. Cooper then proceeded pro se.

4 Airbus and Cooper consented to a magistrate judge deciding the case.
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12 Opinion of the Court 25-10378

Cooper filed an amended complaint in which he asserted
race discrimination and retaliation claims under Title VII and
§ 1981. He also brought a retaliation claim under the FMLA.5 Air-
bus filed an answer to the amended complaint as well as a partial
motion to dismiss, arguing that the FMLA claim was time barred.
While this motion was pending, the parties engaged in discovery.
Cooper never asked the court to stay discovery until the motion
was decided.
The court issued a written order on the partial motion to
dismiss. It explained that a two-year limitation period generally ap-
plied to FMLA claims but a three-year period applied when the em-
ployer engaged in a willful violation. Because Cooper had not al-
leged that Airbus knew or showed reckless disregard for whether
its conduct was prohibited by the FMLA, the district court con-
cluded that a two-year limitation period applied and the FMLA
claim was untimely. Because Cooper was proceeding pro se, the
court gave him an opportunity to file a second amended complaint
to address this deficiency.
Cooper filed a second amended complaint. For the FMLA
claim, he alleged that Airbus’s “retaliatory actions were undertaken

5 In the amended complaint, Cooper also asserted a retaliation claim under the

Whistleblower Protection Act, which protects federal employees who engage in
whistleblowing activities. See 5 U.S.C. §§ 2301–05. Airbus moved to dismiss
this claim, arguing that Cooper had no cause of action under the statute be-
cause he was not a federal employee. The district court dismissed the claim.
Because Cooper does not challenge the dismissal of this claim, we discuss it
no further.
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25-10378 Opinion of the Court 13

knowingly and willfully and showed reckless disregard” for
whether its conduct was prohibited by the FMLA. Doc. 60 at 8. Air-
bus filed a second partial motion to dismiss, again arguing that the
FMLA retaliation claim was time barred.
Three days after filing the second partial motion to dismiss,
Airbus moved for summary judgment, arguing that Cooper had
not come forward with sufficient evidence to survive summary
judgment on any of his claims. For each claim, it argued that
Cooper failed to establish intentional discrimination or retaliation
under the burden-shifting framework set forth in McDonnell Doug-
las Corp. v. Green, 411 U.S. 792 (1973). Airbus asserted that it placed
Cooper on the PIP and later terminated his employment for a le-
gitimate, non-discriminatory, and non-retaliatory reason: his poor
performance. It then argued that Cooper had not shown that this
reason was a pretext for discrimination or retaliation. It also as-
serted that Cooper failed to come forward with a convincing mo-
saic of circumstantial evidence that supported an inference of in-
tentional discrimination or retaliation.
To support its summary judgment motion, Airbus submit-
ted excerpts from Cooper’s deposition, declarations from several
Airbus employees, including Fiton and Mattocks, and various doc-
uments. The transcript from Cooper’s deposition reflected that
Mattocks attended the deposition as a corporate representative.
Although Cooper asked at one point during the deposition why
Mattocks was present, he did not raise with the court any issue
about Mattocks’s presence.
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14 Opinion of the Court 25-10378

Cooper opposed the summary judgment motion, arguing
that he had come forward with sufficient evidence to survive sum-
mary judgment on each claim. He argued that Airbus’s assertion
that he was placed on the PIP and terminated for poor performance
was a pretext for discrimination or retaliation. He asserted that the
metrics Airbus used to assess his performance were “broad, vague,
and subjective in nature” and could not be used “to evaluate his
performance fairly.” Doc. 73 at 21. In addition, he argued that Air-
bus normally trained MEs for 18 months and that his termination
before the period expired “without receiving the full extent of
promised and necessary training” supported an inference that the
company’s actions were “motivated by discriminatory and retalia-
tory intent.” Id. Cooper also argued that he presented a convincing
mosaic of circumstantial evidence to raise an inference of discrim-
ination or retaliation. Along with his opposition, he submitted an
affidavit and supporting documents.
Airbus moved to strike some of Cooper’s evidence. It sought
to exclude statements in Cooper’s affidavit that, it argued, con-
flicted with his deposition testimony or were based solely on spec-
ulation. It also sought to strike some of Cooper’s documentary ev-
idence, including evidence about bonuses that he received while
working as a corrosion specialist. Cooper opposed the motion to
strike. He pointed out that Airbus had filed with the court only se-
lected portions of his deposition transcript and asked the court to
strike the “incomplete and deceptive deposition submission.”
Doc. 76 at 4. But he never filed a motion with the court requesting
such relief.
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25-10378 Opinion of the Court 15

The court issued an order granting in part and denying in
part Airbus’s motion to strike and granting its motion for summary
judgment. The court struck several portions of Cooper’s affidavit,
concluding that the challenged statements were either inconsistent
with his deposition testimony or “conclusory allegations” based on
“conjecture without factual support.” Doc. 82 at 5. The court also
struck the exhibits reflecting Cooper’s quarterly bonuses while
working as a corrosion specialist because the evidence was not rel-
evant to Cooper’s claims. The court denied other portions of Air-
bus’s motion to strike. For example, it refused to strike a document
showing that Mattocks asked security to be on the lookout for
Cooper while he was on leave, concluding it was relevant.
The court granted Airbus summary judgment on all claims.
It determined that Cooper failed to satisfy his burden of producing
sufficient evidence that any adverse action was due to his race or in
retaliation for his protected conduct.
This is Cooper’s appeal.
II.
We review de novo a district court’s grant of summary judg-
ment, viewing all evidence and drawing all reasonable inferences
in favor of the nonmoving party. Hurlbert v. St. Mary’s Health Care
Sys., Inc., 439 F.3d 1286, 1293 (11th Cir. 2006). Summary judgment
is appropriate only “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judg-
ment as a matter of law.” Fed. R. Civ. P. 56(a).
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16 Opinion of the Court 25-10378

We review for abuse of discretion a district court’s decision
to strike affidavit testimony on summary judgment. Evans v. Books-
A-Million, 762 F.3d 1288, 1295 (11th Cir. 2014).
We liberally construe pro se litigants’ pleadings, holding
them “to less stringent standards than formal pleadings drafted by
lawyers.” Campbell v. Air Jam. Ltd., 760 F.3d 1165, 1168 (11th Cir.
2014). We also “read briefs filed by pro se litigants liberally,” but
“issues not briefed on appeal by a pro se litigant are deemed aban-
doned.” Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
III.
On appeal, Cooper argues that the district court erred in
granting summary judgment to Airbus on each of his claims be-
cause he came forward with sufficient evidence to survive sum-
mary judgment. We conclude that the district court did not err in
granting summary judgment. In this section, we begin by address-
ing Cooper’s Title VII and § 1981 claims for race discrimination and
retaliation and then turn to his FMLA retaliation claim.6

6 Before addressing the merits of Cooper’s claims, we pause to address one

other issue. Cooper says that the district court erred in considering his deposi-
tion testimony at the summary judgment stage because he was not given a
copy of the transcript from his deposition and had no opportunity to review it
and correct any errors. He relies on Federal Rule of Civil Procedure 30(e),
which states that “[o]n request by the deponent or a party before the deposi-
tion is completed, the deponent must be allowed 30 days” after the transcript
is available to “review” it, and, “if there are changes in form or substance, to
sign a statement listing the changes and the reasons for making them.” Fed. R.
Civ. P. 30(e). We see no error because there is no indication here that, before
his deposition was completed, Cooper requested to review the transcript and
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25-10378 Opinion of the Court 17

A.
Title VII of the Civil Rights Act makes it unlawful for a pri-
vate employer to “discriminate against any individual with respect
to his compensation, terms, conditions, or privileges of employ-
ment, because of such individual’s race.” 42 U.S.C. § 2000e-2(a)(1).
It also prohibits an employer from retaliating against an employee
who has opposed any practice made unlawful by Title VII. Id.
§ 2000e-3(a). In addition, 42 U.S.C. § 1981 “prohibits intentional
race discrimination in the making and enforcement of . . . employ-
ment contracts.” Jenkins v. Nell, 26 F.4th 1243, 1249 (11th Cir. 2022)
(citation modified). Section 1981 also prohibits retaliation against
employees who allege discrimination. Gogel v. Kia Motors Mfg. of
Ga., Inc., 967 F.3d 1121, 1134 (11th Cir. 2020) (en banc). We apply
the same standards to evaluate claims under Title VII and § 1981.
See Jenkins, 26 F.4th at 1249; Gogel, 967 F.3d at 1134. “To prove a
claim under either statute, a plaintiff can use direct evidence, cir-
cumstantial evidence, or both.” Tynes v. Fla. Dep’t of Juv. Justice,
88 F.4th 939, 944 (11th Cir. 2023).

be given an opportunity to make changes. As a result, Rule 30(e) is not impli-
cated.
Cooper also asserts that the district court erred in considering his deposition
transcript because Mattocks attended his deposition as a corporate representa-
tive, which made the deposition “inherently coercive and prejudicial.” Appel-
lant’s Br. 20. This issue is not properly before us because Cooper never raised
it in the district court. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,
1331 (11th Cir. 2004).
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18 Opinion of the Court 25-10378

As we have previously explained, when only circumstantial
evidence is available, “figuring out whether the actual reason that
an employer fired or disciplined an employee was illegal discrimi-
nation [or retaliation]” can be “difficult and elusive.” Id. (emphasis
in original) (citation modified). To address these difficulties, the Su-
preme Court in McDonnell Douglas “set out a burden shifting frame-
work designed to draw out the necessary evidence in employment
discrimination [and retaliation] cases.” Id.
Under the McDonnell-Douglas framework, a plaintiff must
first establish a prima facie case. See Lewis v. City of Union City,
918 F.3d 1213, 1220–21 (11th Cir. 2019) (en banc). To state a prima
facie case for discrimination, a plaintiff must show that (1) he “be-
long[ed] to a protected class,” (2) he “was subjected to an adverse
employment action,” (3) he “was qualified to perform the job in
question,” and (4) his “employer treated similarly situated employ-
ees outside [his] class more favorably.” Id. (citation modified). To
meet the “similarly situated” requirement, the plaintiff and his
comparator must be similarly situated “in all material respects.” Id.
at 1226 (citation modified). To establish a prima facie case of retal-
iation, a plaintiff must show that (1) he “engaged in statutorily pro-
tected activity,” (2) he “suffered an adverse action,” and (3) “the ad-
verse action was causally related to the protected activity.” Patter-
son v. Ga. Pac., LLC, 38 F.4th 1336, 1345 (11th Cir. 2022) (citation
modified).
If the plaintiff establishes a prima facie case, the burden then
shifts to the defendant to articulate a legitimate, non-
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25-10378 Opinion of the Court 19

discriminatory or non-retaliatory reason for its employment ac-
tion. See Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 254 (1981).
If the defendant meets this burden, the plaintiff has the opportunity
to show by a preponderance of the evidence that the defendant’s
proffered reasons “were not its true reasons, but were a pretext”
for discrimination or retaliation. Id. at 253. The pretext inquiry
“centers on the employer’s beliefs,” and the question is whether
the employer was dissatisfied with an employee for non-discrimi-
natory or non-retaliatory reasons, “even if mistakenly or unfairly
so,” or instead merely used those reasons as cover for discrimina-
tion or retaliation. Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253,
1266 (11th Cir. 2010).
We have explained that the McDonnell-Douglas framework is
“an evidentiary tool that functions as a procedural device” for eval-
uating whether an employer acted with a discriminatory or retali-
atory intent. Tynes, 88 F.4th at 944 (citation modified). Even when
a plaintiff cannot satisfy this framework, he still may survive sum-
mary judgment by coming forward with a “convincing mosaic of
circumstantial evidence that would allow a jury to infer intentional
discrimination [or retaliation] by the decisionmaker.” Id. at 946 (ci-
tation modified). We have explained that “[t]his approach to ana-
lyzing the evidence treats an employment discrimination suit in
[the] same way we would treat any other case—jumping directly
to the ultimate question of liability and deciding whether the mov-
ing party is entitled to judgment at that stage of the case.” Id. at
947.
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20 Opinion of the Court 25-10378

In considering whether there is a convincing mosaic, “we
look beyond the prima facie case to consider all relevant evidence
in the record to decide the ultimate question of intentional discrim-
ination” or retaliation. Id. Under this approach, a court “must con-
sider the totality of a plaintiff’s circumstantial evidence,” which
“may include, among other things, (1) suspicious timing or ambig-
uous statements, (2) systematically better treatment of similarly sit-
uated employees, and (3) pretext.” Yelling v. St. Vincent’s Health Sys.,
82 F.4th 1329, 1342 (11th Cir. 2023) (citation modified). At bottom,
the mosaic of evidence must be enough “to allow a reasonable jury
to infer but-for causation.” Id.
We now consider whether Cooper established through cir-
cumstantial evidence7 that Airbus engaged in intentional discrimi-
nation or retaliation when it placed him on the PIP and later termi-
nated him. In assessing Cooper’s circumstantial evidence, we

7 A plaintiff also may establish an employer’s discriminatory intent through

direct evidence. “Direct evidence is evidence, that, if believed, proves the ex-
istence of discriminatory intent without inference or presumption.” Jefferson v.
Sewon Am., Inc., 891 F.3d 911, 921 (11th Cir. 2018) (citation modified). We have
explained that “only the most blatant remarks, whose intent could be nothing
other than to discriminate, constitute direct evidence of discrimination.” Har-
ris v. Pub. Health Tr. of Mia.-Dade Cnty., 82 F.4th 1296, 1301 (11th Cir. 2023) (ci-
tation modified). In the district court, Cooper argued that he had direct evi-
dence of discrimination, that another ME employee called him “boy.” But this
remark by a non-decisionmaker does not qualify as direct evidence of discrim-
ination. See id. (explaining that “remarks by non-decisionmakers” are not di-
rect evidence).
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25-10378 Opinion of the Court 21

consider both the McDonnell-Douglas framework and whether there
was a convincing mosaic of circumstantial evidence.
In applying the McDonnell-Douglas framework, we assume
that Cooper established a prima facie case of discrimination and re-
taliation for his Title VII and § 1981 claims. For the retaliation
claims, we assume that he engaged in protected conduct when he
first contacted Mattocks because he complained of discrimination.
Two months after making this report, he was placed on the PIP
and about a month later he was terminated.
Despite our assumption that Cooper established a prima fa-
cie case of race discrimination and retaliation, Airbus was entitled
to summary judgment. He failed to show that Airbus’s legitimate
reason for placing him on the PIP and later terminating him—his
poor performance in the ME role—was a pretext for discrimination
or retaliation.
Cooper argues that Airbus’s proffered reason was a pretext
for discrimination or retaliation because he showed that Airbus ter-
minated him before he completed the 18-month training program.
Although the record shows that Airbus provided new MEs with up
to 18 months of training, nothing in the record supports an infer-
ence that a new ME was entitled to an 18-month training period
such that Airbus could not terminate him during this period for
poor performance once Airbus determined that he was not pro-
gressing. Importantly, the record shows that Airbus placed Cooper
on the PIP after finding that he was not meeting expectations “con-
cerning the basic tasks [Airbus] would expect to see” from a new
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22 Opinion of the Court 25-10378

ME after spending approximately five months in the role. Doc. 63-
1 at 193. And it later terminated him because he failed to meet the
PIP, which identified tasks that Airbus expected a new ME to be
able to complete after spending seven months in the role. Given
that Airbus compared Cooper’s performance to its expectations for
a new ME who had spent a similar length of time in the role, the
fact that Airbus terminated Cooper before he completed
18 months of training does not evidence pretext.
Cooper nevertheless argues that he established pretext be-
cause his “performance issues were minor or fabricated” and Air-
bus used a flawed process to evaluate his performance. Appellant’s
Br. 14 (citation modified). But Cooper’s disagreement with Air-
bus’s assessment of his performance does not suffice to show pre-
text. See Patterson, 38 F.4th at 1352 (explaining that a “plaintiff can-
not rebut a reason by simply quarreling with the wisdom of that
reason or substituting [his] business judgment for that of the em-
ployer” (citation modified)).
Cooper also argues that he introduced evidence showing
that Airbus gave him positive evaluations and awarded him bo-
nuses when he worked as a corrosion specialist. But the evidence
that at an earlier time Airbus determined that Cooper successfully
performed a different job with different responsibilities at a sub-
stantially lower pay rate does not demonstrate that Airbus’s prof-
fered reason for placing him on a PIP and terminating him—his
poor performance as an ME—was a pretext for discrimination or
retaliation. Because Cooper failed to show that the performance
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25-10378 Opinion of the Court 23

issues Airbus cited were a pretext for discrimination or retaliation,
he did not carry his burden under the McDonnell-Douglas frame-
work.
Of course, even if Cooper failed to carry his burden under
McDonnell Douglas, he could survive summary judgment by coming
forward with a convincing mosaic of circumstantial evidence that
would allow a jury to infer intentional discrimination or retaliation.
Cooper did not do so here. The record, even viewed in the light
most favorable to Cooper, shows that he struggled to perform the
responsibilities of the ME position, even after Airbus changed his
trainer multiple times. Indeed, Cooper admitted to his coworkers
that he struggled in the ME role.
We liberally construe Cooper’s appellate brief as arguing
that he nevertheless came forward with a convincing mosaic of ev-
idence because he showed that he was not given the full 18 months
of training, other employees shot at him with Nerf guns, Tijerina
called him “boy,” and Mattocks told Airbus security to be on the
lookout for Cooper after the incident with Tijerina. Appellant’s
Br. 14. But Tijerina was not Cooper’s supervisor and played no role
in Airbus’s decisions to place him on a PIP or later terminate him
for his performance. And although Mattocks told security to be on
the lookout for Cooper, he also told them that Cooper “did not do
anything wrong” and that he “[m]ost likely” was going to be al-
lowed to return to work. 8 Doc. 72-1 at 42. Given the record before

8 On appeal, Cooper says that the district court wrongly excluded his evidence

about Mattocks directing security to be on the lookout for him. Although
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24 Opinion of the Court 25-10378

us, we cannot say that a reasonable jury could infer that Cooper
was placed on a PIP or terminated because of his race or in retalia-
tion for engaging in protected conduct by complaining about dis-
crimination.9
Because Cooper failed to establish that Airbus engaged in in-
tentional race discrimination or retaliation, we conclude that the
district court properly granted summary judgment to Airbus on the
Title VII and § 1981 claims.
B.
We now turn to Cooper’s FMLA retaliation claim. The
FMLA entitles an eligible employee to take up to 12 weeks of leave
when he has a “serious health condition that makes [him] unable
to perform the functions of [his] position.” 29 U.S.C.
§ 2612 (a)(1)(D). It also guarantees that after taking leave an em-
ployee shall be “restored . . . to the position” he held before taking
leave or an equivalent position. Id. § 2614(a)(1). “To preserve the
availability of these rights, and to enforce them,” the FMLA created

Airbus moved to strike the exhibit related to Mattocks’s direction to security,
the district court refused to strike it.
9 Cooper argues that the district court’s grant of summary judgment deprived

him of his constitutional right to a jury trial. We see no error. It is well estab-
lished that a “district court does not intrude on the constitutional role of the
jury” when after “consider[ing] disputed facts in the light most favorable to
the nonmoving party,” it grants summary judgment. Jefferson v. Sewon Am.,
Inc., 891 F.3d 911, 920 (11th Cir. 2018). Accordingly, the district court’s grant
of summary judgment to Airbus did not deprive Cooper of his constitutional
right to a jury trial.
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25-10378 Opinion of the Court 25

two types of claims: an interference claim “in which an employee
asserts that his employer denied or otherwise interfered with his
substantive rights under the [FMLA]” and a retaliation claim “in
which an employee asserts that his employer discriminated against
him because he engaged in activity protected by the” FMLA. Strick-
land v. Water Works & Sewer Bd. of City of Birmingham, 239 F.3d
1199, 1206 (11th Cir. 2001). In this case, Cooper raised an FMLA
retaliation claim.
To establish retaliation in violation of the FMLA, an em-
ployee must show that “his employer intentionally discriminated
against him in the form of an adverse employment action for hav-
ing exercised an FMLA right.” Id. at 1207. He must show that “his
employer’s actions were motivated by an impermissible retaliatory
or discriminatory animus.” Id. (citation modified). To establish his
employer’s intent through circumstantial evidence, a plaintiff may
rely on the McDonnell-Douglas framework or come forward with a
convincing mosaic of circumstantial evidence. See id.; Smith v. Lock-
heed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011).
We conclude that Cooper failed to carry his burden under
the McDonnell-Douglas framework. We assume that Cooper estab-
lished a prima facie case of retaliation because he introduced evi-
dence showing that immediately upon his return from his third
round of FMLA leave, he was placed on a PIP. Airbus then put forth
a legitimate, non-retaliatory reason for placing him on the PIP (and
later terminating him): his poor performance. We conclude, for the
same reasons given in our discussion of his Title VII and § 1981
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26 Opinion of the Court 25-10378

claims, that Cooper failed to show that Airbus’s proffered reason
was a pretext for retaliation. We also conclude, again for the same
reasons, that Cooper failed to come forward with a convincing mo-
saic of circumstantial evidence that would allow a reasonable jury
to conclude that he was placed on the PIP and later terminated be-
cause he exercised FMLA rights.
Cooper raises one additional argument unique to his FMLA
retaliation claim. He says that it was improper for the district court
to grant summary judgment on this claim because Airbus’s mo-
tions to dismiss this claim were pending during discovery and he
was “unsure” whether the claim remained in the case. Appellant’s
Br. 17. He states that this confusion “prevented [him] from focus-
ing discovery” on this claim. Id.
The Federal Rules of Civil Procedure allow a party opposing
a summary judgment motion to establish through an affidavit or
declaration that he “cannot present facts essential to justify [his] op-
position” to the motion and then ask the court to defer considering
the motion, deny it, or give him “time to obtain affidavits or decla-
rations or to take discovery.” Fed. R. Civ. P. 56(d). We have ex-
plained that “the party opposing the motion for summary judg-
ment bears the burden of calling to the district court’s attention any
outstanding discovery.” Snook v. Tr. Co. of Ga. Bank, 859 F.2d 865,
871 (11th Cir. 1988). Here, although Cooper argues on appeal that
he needed additional discovery for his FMLA retaliation claim, he
never notified the district court that it should delay addressing Air-
bus’s summary judgment motion on the claim because he needed
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25-10378 Opinion of the Court 27

more discovery. Given Cooper’s failure to raise any such issue with
the district court, we cannot say that the district court erred when
it granted summary judgment on the FMLA claim. See id.
IV.
For the reasons set forth above, we affirm the district court.
AFFIRMED.