[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-14332 ELEVENTH CIRCUIT
APRIL 29, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-00301-CV-5-RS-MD
WENDY ENTREKIN,
Plaintiff-Appellant,
versus
CITY OF PANAMA CITY FLORIDA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(April 29, 2010)
Before EDMONDSON, BIRCH and FAY, Circuit Judges.
PER CURIAM:
Wendy Entrekin appeals the district court’s grant of summary judgment in
favor of the City of Panama City, Florida, (“the City”) with respect to her
retaliation claims. She argues that she established a prima facie case of retaliation
and showed that the City’s proffered reasons for her termination and other adverse
employment actions were pretext. For the reasons set forth below, we affirm.
I.
Entrekin brought suit against her employer, the City, asserting gender
discrimination and retaliation claims under Chapter 760 of the Florida Statutes; 42
U.S.C. § 1981a; and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e,
et seq. Entrekin, who began working as a police officer for the City in May 2004,
contended that she had been discriminated against because of her gender and
retaliated against for reporting the discrimination. She stated that, from 2004
through 2007, her supervisor, Lieutenant Bobby Hartwell, “subjected [her] to
unwelcome sexual actions, sexually explicit comments and vulgar sexually
oriented jokes within the workplace.”
The City answered that all of the employment actions it took with respect to
Entrekin were made in good faith and based on legitimate, non-discriminatory
reasons. Entrekin subsequently agreed to dismiss with prejudice her sexual
harassment claims. The City filed a motion for summary judgment, pursuant to
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Fed.R.Civ.P. 56, asserting that Entrekin failed to establish a prima facie case of
retaliation, because she failed to show a causal connection between her protected
activity and any adverse employment actions, and because its actions toward
Entrekin were based on legitimate and non-discriminatory reasons.
The deposition transcripts and documents submitted by the parties set forth
the following facts. On July 24, 2007, Hartwell made a joke about having oral sex
with a child. On August 2, 2007, Entrekin reported Hartwell’s conduct to Captain
Tom McCarthy. That same day, in a separate matter, Entrekin received a “notice
of verbal warning” for being insubordinate and using a disrespectful tone and
language when discussing a problem with off-duty work. On August 6, 2007,
Entrekin filed a sexual harassment complaint with Rodney Dobbins, the City’s
Human Resources (“HR”) Director. On August 8, 2007, when PCPD Chief John
Van Etten became aware of Entrekin’s sexual harassment complaint against
Hartwell, he immediately removed Hartwell from Entrekin’s chain of command.
During the week of August 9, 2007, Entrekin asked her new supervisor,
Sergeant Kathy Rausa, whether Entrekin should respond to a priority call after
Hartwell had radioed that he was en route to the call. Rausa told Entrekin not to
respond, even though Entrekin was closer and, according to the Panama City
Police Department’s (“PCPD’s”) General Orders, should have gone straight to the
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call.
On August 31, 2007, after being removed from under Hartwell’s chain of
command, Entrekin was called into Chief Van Etten’s office and told that she
would be returned to her original work schedule starting the next day, “due to the
stress it caused [her] to move.” Entrekin explained to Van Etten that she did not
have child care set up and asked whether she could continue her current schedule
for the next week, to which Van Etten agreed.
On September 19, 2007, Entrekin learned that a speech violation complaint
she had filed against another police officer, Lieutenant Brad Leonard, had not been
sustained. This complaint was based on Leonard’s comments that Entrekin would
“[get] what was coming to [her] and that it was going to get . . . ugly.”
On October 9, 2007, Entrekin filed a formal charge of discrimination with
the Florida Commission on Human Relations (“FCHR”) and the Equal
Employment Opportunity Commission (“EEOC”).
On May 15, 2008, Sergeant Rausa refused to allow Entrekin to leave work
early and “drive slowly to [her] house,” so that her shift would be over by the time
she arrived home. On June 11, 2008, Entrekin’s neighbor, Christine Creamer,
e-mailed Chief Van Etten to complain that Entrekin was “police bullying” her and
her husband. Approximately five days later, Leonard and Rausa met with Entrekin
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to review Creamer’s complaint, but Entrekin left the interview without permission.
Entrekin was exonerated on the Creamer complaint, but found insubordinate and
suspended for one day based on her conduct during the interview.
On July 14, 2008, Entrekin contacted Officer Chris Taylor’s wife.
According to Entrekin, she told Taylor’s wife that “some of the things [Taylor] was
doing could get him in trouble at the department.” According to Taylor, Entrekin
also told his wife that he had a girlfriend, that his actions violated PCPD policy,
and that his wife should report him to the department. Taylor filed a speech policy
complaint (“Taylor Complaint”) against Entrekin, and Chief Van Etten instructed
Deputy Chief Joe Hall to conduct an Internal Affairs investigation, (“IA
Investigation 08-03"). Entrekin stated during a deposition that Taylor filed his
complaint against her because “he wanted a more serious relationship than friends
and I wouldn’t do that.” IA Investigation 08-03 found that Entrekin violated ten
General Orders, as well as a section of the Code of Conduct.
On July 23, 2008, Entrekin learned of a policy that PCPD officers who lived
near other officers would have to car pool to work during the week. Entrekin
objected to the car pool policy, and the City never enforced the policy against her.
On August 21, 2008, Lieutenant Kevin Miller was conducting a sexual
harassment training session and stated that sexual harassment complaints should be
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filed with a supervisor, not HR. Entrekin stated that she had been told to “go
straight to HR” with such a complaint. Miller responded, “No, Officer Entrekin,
you are wrong. You have to stay in your chain of command to report sexual
harassment and once you reported it, it is then your supervisor’s responsibility to
take it from there.” Miller subsequently filed a complaint (“Miller Complaint”)
against Entrekin due to her behavior in the training session. Entrekin contended
during a deposition that the filing of the Miller Complaint was retaliation for
statements that had been made during a recently concluded internal investigation of
Taylor. She also believed that Miller was angry because she was knowledgeable
about the subject on which Miller was instructing. On August 25, 2008, Entrekin
was suspended with pay pending the outcome of this investigation.
On August 22, 2008, Chief Van Etten ordered Captain McCarthy to
investigate the Miller Complaint. Entrekin was placed on paid administrative leave
until this investigation, (“IA Investigation 08-04"), was complete. At McCarthy’s
deposition, McCarthy stated that he interviewed every supervisor who had attended
Miller’s sexual harassment training session and that “it was a . . . pretty much
across the board determination” that Entrekin had been insubordinate. He noted
that Sergeant Himes was the only exception, because Himes admitted that he had
been talking with another officer and did not hear what went on. Eric Garmon, a
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PCPD officer who had attended Miller’s sexual harassment training session, stated
that he did not know whether Entrekin was insubordinate during the training, but
that Entrekin’s “continually interrupting” Miller could possibly be construed as
insubordination. Paul Atwell, a PCPD patrol officer who attended the training
session, stated that both Entrekin and Miller raised their voices during the training
session.
During IA Investigation 08-04, an employee of the City garage lodged a
complaint against Entrekin for violating the PCPD’s vehicle operations policy.
This complaint was combined with IA Investigation 08-04. On October 14, 2008,
IA Investigation 08-04 concluded and Entrekin was found to have violated 12
General Orders.
On September 5, 2008, Entrekin went to HR to file a complaint against
Taylor, but she was told that she would have to obtain the forms from the PCPD.
Entrekin then spoke with Miller, who refused to give her the complaint forms and
told her that she would have to get the forms from HR.
On October 15, 2008, after reviewing the files from IA Investigations 08-03
and 08-04, as well as Entrekin’s personnel file, and considering whether there had
been other similar situations within the PCPD, Van Etten terminated Entrekin “for
the multiple sustained violations in IA 08-03 and 08-04.” Van Etten stated that,
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although he considered all of the policy violations set forth in IA 08-03 and 08-04,
“the most important factor in [his] decision to terminate . . . Entrekin was the
sustained finding of Insubordination in 08-04,” which was “her fourth incident of
insubordination in a fifteen month period.” PCPD policies provide that any act of
insubordination can result in termination. Since Van Etten had been Police Chief,
only four other officers had been found insubordinate, and none of these four
officers had been insubordinate on more than one occasion. Van Etten stated
during a deposition that he terminated Entrekin for “[r]ecurring insubordination,”
and that she would not have been terminated if she simply had committed the
violations set forth in IA Investigation 08-03 (Taylor Complaint).
Entrekin filed the present lawsuit on September 28, 2008.
The City argued that summary judgment was appropriate because there was
no causal connection between Entrekin’s August and October 2007 complaints
about Hartwell’s conduct and the filing of the Taylor or Miller Complaints against
Entrekin at least nine months later. The City acknowledged that Entrekin was
terminated only weeks after she filed the instant lawsuit, but argued that the
investigations that resulted in her termination were initiated in August 2008, before
Entrekin filed her lawsuit. The City contended that, even if Entrekin set forth a
prima facie case of retaliation, it had legitimate, non-discriminatory reasons for
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terminating her, because she had been found to have been insubordinate toward
supervisors 4 times in 15 months and Van Etten followed standard procedures in
ordering an IA investigation into the Miller Complaint.
Entrekin responded that, not only did she engage in protected activity when
she filed her charge of discrimination with the FCHR and the EEOC in October
2007, but also when she discussed her attempt to file a sexual harassment
complaint against Hartwell during Miller’s sexual harassment training session.
She listed the following “series of adverse actions taken against her: (1) the
PCPD’s failure to sustain her complaint against Leonard; (2) allowing Hartwell to
“usurp an emergency call”; (3) her multiple shift reassignments; (4) Rausa’s
refusal to allow her to leave work early one day; (5) refusing to initially excuse her
from the car pool policy; (6) investigating her on the Creamer Complaint; (7)
investigating her on the Taylor Complaint; (8) refusing to accept her complaint
against Taylor; and (9) “contriving allegations against her to effect her termination
in IA investigation 08-04.” Entrekin contended that the City’s reasons for
terminating her were pretextual, because officers present during the sexual
harassment training session stated that she was not arguing or disruptive towards
Miller, and she was treated differently by her supervisors after objecting to
Hartwell’s behavior and filing her discrimination charge.
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The district court granted the City’s motion for summary judgment, finding
that Entrekin engaged in statutorily protected conduct on August 2, 2007, when she
verbally complained to Rausa and McCarthy about Hartwell’s sexual harassment;
on October 10, 2007, when she filed a discrimination charge with the FCHR; and
on September 29, 2008, when she filed the instant lawsuit. The court found that IA
Investigations 08-03 and 08-04, as well as Entrekin’s termination, constituted
adverse employment actions. However, it found that Entrekin failed to show a
causal connection between her protected activity and the investigations because of
the lack of temporal proximity between the actions. The court also noted that
Entrekin had stated in her deposition that Miller filed the complaint because he
“was not very happy of . . . what was said . . . during the [08-03] investigation.”
The court also found that there was no causal connection between Entrekin’s 2007
protected activities and her October 2008 termination because of the long time gap
between the incidents. It noted that, although Entrekin was terminated only weeks
after filing her lawsuit, her termination was based on the findings of IA
investigations 08-03 and 08-04, which were initiated one month before she filed
her lawsuit.
The court noted that, even if Entrekin could establish a prima facie case of
retaliation, the City was still entitled to summary judgment, because it had offered
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legitimate, non-discriminatory reasons for Entrekin’s termination – Entrekin’s
repeated insubordination and the fact that any one instance of insubordination
could result in termination. The court determined that Entrekin failed to show that
the City’s proffered reasons were pretext, because the internal investigation
showed that Entrekin was repeatedly insubordinate and that the punishment was
“in-line with what was given other insubordinate police officers.” Accordingly,
the district court granted the City’s motion for summary judgment and dismissed
Entrekin’s claims with prejudice.
II.
We review a district court’s grant of summary judgment de novo, viewing all
evidence and factual inferences reasonably drawn from the evidence in the light
most favorable to the nonmoving party. Burton v. Tampa Hous. Auth., 271 F.3d
1274, 1276-77 (11th Cir. 2001). Summary judgment is proper “if the pleadings,
the discovery and disclosure materials on file, and any affidavits show that there is
no genuine issue as to any material fact and that the movant is entitled to a
judgment as a matter of law.” Fed.R.Civ.P. 56(c). “A party moving for summary
judgment has the burden of showing that there is no genuine issue of fact.”
Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir. 1990). An issue “is genuine
if the record taken as a whole could lead a rational trier of fact to find for the
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nonmoving party.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997)
(quotations omitted). The party opposing the motion must set forth specific facts,
and provide more than a “mere scintilla of evidence” to survive summary
judgment. Mendoza v. Borden, Inc., 195 F.3d 1238, 1244 (11th Cir. 1999).
III.
A. Prima Facie Case
In order to make out a prima facie case of retaliation under Title VII, an
employee must show that: (1) she was engaged in an activity protected under Title
VII; (2) she suffered an adverse employment action; and (3) there was a causal
connection between the protected activity and the adverse employment action.
Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001).
i. Protected Activity
The Opposition Clause of Title VII provides that an employer may not
retaliate against an employee because the employee “has opposed any practice
made an unlawful employment practice by this subchapter.” 42 U.S.C.
§ 2000e-3(a). Title VII’s Participation Clause provides that an employer may not
retaliate against an employee because the employee “has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing
under this subchapter.” Id. The Participation Clause protects “proceedings and
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activities which occur in conjunction with or after the filing of a formal charge
with the EEOC; it does not include participating in an employer’s internal,
in-house investigation, conducted apart from a formal charge with the EEOC.”
EEOC v. Total Sys. Serv., Inc., 221 F.3d 1171, 1174 (11th Cir. 2000).
Entrekin cites four instances of protected activity: (1) her August 2007
verbal complaint to Rausa and McCarthy about Hartwell’s sexual harassment; (2)
her October 2007 complaints to the FCHR and the EEOC; (3) her objections to
Miller’s instructions during the sexual harassment training session; and (4) her
September 29, 2008 filing of the instant lawsuit. There is no dispute about three of
those four: (1) Entrekin’s August 2007 verbal complaint about Hartwell’s sexual
comments; (2) Entrekin’s October 2007 complaints to the FCHR and EEOC; and
(3) Entrekin’s gender discrimination lawsuit, filed under Title VII.
Entrekin’s conduct during Miller’s sexual harassment training session, the
only instance of protected activity in dispute, is not protected under Title VII.
According to Entrekin herself, Entrekin stated during the training session that
officers should file sexual harassment complaints with HR, because PCPD
procedures were not effective. Viewed in the light most favorable to Entrekin, her
comments during the training session could be construed as an objection to the
PCPD’s internal procedures for filing sexual harassment complaints. Title VII sets
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forth a list of unlawful employment practices. See 42 U.S.C. §§ 2000e-2,
2000e-3(a). Title VII does not, however, establish requirements for an employer’s
internal procedures for receiving sexual harassment complaints, or even require
that employers must have an internal procedure for receiving such complaints. See
42 U.S.C. § 2000e, et seq. Thus, because Entrekin’s complaint involved the
adequacy of the PCPD’s internal procedure for receiving sexual harassment
complaints, rather than an employment practice that Title VII declares to be
unlawful, Entrekin’s conduct at the sexual harassment training session did not
constitute protected conduct under § 2000e-3(a). See 42 U.S.C. § 2003e-3(a).
ii. Adverse Employment Actions and Causation
“Title VII’s protection against retaliatory discrimination extends to adverse
actions which fall short of ultimate employment decisions.” Wideman v. Wal-Mart
Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998). However, in order to sustain a
Title VII retaliation claim, an employee must show that “a reasonable employee
would have found the challenged action materially adverse,” such that the action
would “dissuade[] a reasonable worker from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126
S.Ct. 2405, 2415, 165 L.Ed.2d 345 (2006). “[T]rivial harms” and “petty slights”
do not constitute adverse employment actions. Id.
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Entrekin cites the following adverse employment actions: (1) failing to
sustain her complaint against Lieutenant Leonard; (2) having Hartwell usurp an
emergency call that she should have taken; (3) being switched to a different shift
and “having difficulties in getting the shifts straightened out due to child care
concerns”; (4) refusing to allow her to leave early one day when she did not take a
lunch break; (5) failing to initially excuse her from the car pool requirement; (6)
investigating the Creamer complaint; (7) investigating the Taylor complaint against
her; (8) refusing to accept her complaint against Taylor; and (9) contriving
allegations against her in IA Investigation 08-04.
The PCPD’s failure to sustain Entrekin’s complaint against Leonard and
failure to investigate Entrekin’s complaint against Taylor are not adverse
employment actions, because these actions were not taken against Entrekin herself.
In interpreting Title VII’s retaliation provision, we have stated that the plaintiff
herself must suffer an adverse employment. See Pennington, 261 F.3d at 1266.
Therefore, the PCPD’s failure to take action against other individuals does not
constitute an adverse employment action, because Entrekin herself suffered no
harm. Hartwell’s response to an emergency call and Rausa’s refusal to allow
Entrekin to leave work early one day also are not adverse employment actions,
because they amount to mere “trivial harms” and “petty slights” that would not
15
dissuade a reasonable worker from making or supporting a charge of
discrimination. See Burlington, 548 U.S. at 68, 126 S.Ct. at 2415. Similarly,
Entrekin suffered no harm with respect to the City’s car pool policy, because she
admitted at her deposition that the policy was never enforced against her.
Entrekin’s reassignments also did not constitute adverse employment
actions. As soon as Entrekin voiced a concern about her reassignment, Chief Van
Etten offered to transfer her back to her original assignment. When Entrekin noted
that an immediate reassignment would disrupt her child care schedule, Van Etten
permitted Entrekin to postpone the change until the end of the week, as Entrekin
had requested. Because each reassignment occurred either as a result of Entrekin’s
complaint against Hartwell or at Entrekin’s request, the reassignments were not
adverse actions. The investigation of the Creamer complaint did not constitute an
adverse action, because the complaint ultimately was not sustained and Entrekin,
therefore, suffered no harm from the filing of the complaint. Although Entrekin
received a one-day suspension based on her conduct during the investigation of the
Creamer complaint, this suspension was a result of Entrekin walking out of an
interview with Rausa and Leonard about the complaint, rather than a result of the
actual complaint filed against her.
Finally, Entrekin cites the Taylor Complaint, which resulted in IA
16
Investigation 08-03, and the Miller Complaint, which resulted in IA Investigation
08-04, as adverse employment actions. These investigations, which ultimately led
to Entrekin’s placement on administrative leave and termination, appear to rise
above “trivial harms” because it is likely that the initiation of an internal
investigation against an employee would dissuade a reasonable worker from
making or supporting a charge of discrimination. See id.
Entrekin argues that the adverse employment actions she lists should be
viewed cumulatively. However, as discussed above, except for IA Investigations
08-03 and 08-04, the incidents Entrekin cites either had no adverse effect on
Entrekin or constituted mere “petty slights.” Even if these incidents are viewed
collectively, they do not constitute adverse employment actions or a pattern of
retaliatory actions, because the collective harm that Entrekin suffered from these
events, if any, was trivial. See id. Accordingly, as the district court correctly
found, only IA Investigations 08-03 and 08-04, as well as Entrekin’s termination,
constituted adverse employment actions.
iii. Causation
To establish a causal connection between a protected activity and an adverse
employment action, a plaintiff must show that “the protected activity and the
adverse action are not completely unrelated.” Davis v. Coca-Cola Bottling Co.
17
Consol., 516 F.3d 955, 978 n.52 (11th Cir. 2008). This burden may be satisfied
“by showing close temporal proximity between the statutorily protected activity
and the adverse employment action.” Thomas v. Cooper Lighting, Inc., 506 F.3d
1361, 1364 (11th Cir. 2007). The temporal proximity must be “very close” if there
is no other evidence tending to show causation. Id. “[I]n the absence of any other
evidence of causation, a three and one-half month proximity between a protected
activity and an adverse employment action is insufficient to create a jury issue on
causation.” Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006). In the absence
of close temporal proximity, a plaintiff may establish causation by showing that
her employer knew of a protected activity, and that a series of adverse employment
actions commenced shortly thereafter. Wideman, 141 F.3d at 1457. However, any
intervening retaliatory acts must have been material. See Burlington, 548 U.S. at
67-68, 126 S.Ct. at 2414-15.
The first two adverse employment actions taken against Entrekin – the
initiation of IA Investigations 08-03 and 08-04 – occurred in July 2008 and August
2008, 11 to 12 months after Entrekin verbally complained about Hartwell in
August 2007, and 9 to 10 months after Entrekin filed her complaints with the
FCHR and the EEOC in October 2007. These actions also occurred prior to the
filing of the present lawsuit, on September 29, 2008. Thus, a causal link between
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the protected activity and the adverse employment actions cannot be established by
temporal proximity alone. See Thomas, 506 F.3d at 1364; Drago, 453 F.3d at
1388. Moreover, with respect to the Taylor Complaint, (IA Investigation 08-03),
Entrekin stated that she believed Taylor filed the complaint because “he wanted a
more serious relationship than friends and [she] wouldn’t do that.” With respect to
the Miller Complaint, (IA Investigation 08-04), Entrekin stated that Miller filed his
complaint in retaliation for statements that were made during an internal
investigation of Taylor. Thus, Entrekin herself asserted that the two IA
Investigations did not result from her August/October 2007 protected conduct.
Furthermore, taking part in an internal investigation does not constitute protected
expression under Title VII in the absence of an EEOC complaint. See Total Sys.
Servs., Inc., 221 F.3d at 1174. Because there is no evidence that an EEOC
complaint was filed in connection with Entrekin’s complaint against Taylor, her
statements made in connection with the internal investigation did not constitute
protected activity. Accordingly, the district court correctly found that Entrekin
failed to show that IA Investigations 08-03 and 08-04 were initiated because
Entrekin had engaged in protected conduct.
With respect to Entrekin’s termination, temporal proximity alone is
insufficient to establish a causal link with Entrekin’s protected conduct in August
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and October 2007, almost one year earlier. See Thomas, 506 F.3d at 1364; Drago,
453 F.3d at 1388. However, it is possible to establish a causal link between
Entrekin’s termination and the filing of the present lawsuit, based solely on the
“very close” proximity between the filing of the lawsuit on September 29, 2008,
and the termination just over two weeks later, on October 15, 2008. See Thomas,
506 F.3d at 1364. Accordingly, Entrekin established a prima facie case of
retaliation with respect to her termination, and the burden shifted to the City to
show that it had a legitimate non-pretextual reason for terminating Entrekin.
B. Legitimate, Non-Pretextual Reason for Termination
“Once a plaintiff has established a prima facie case, the employer then has
an opportunity to articulate a legitimate, non-retaliatory reason for the challenged
employment action.” Pennington, 261 F.3d at 1266. If the employer meets this
burden, the presumption of retaliation disappears, and the plaintiff must
demonstrate that the employer’s reasons are a “pretext for prohibited retaliatory
conduct.” Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507
n.6 (11th Cir. 2000). An employee may show pretext by demonstrating “such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the employer’s proffered legitimate reasons for its action that a reasonable
factfinder could find [those reasons] unworthy of credence.” Silvera v. Orange
20
County Sch. Bd., 244 F.3d 1253, 1258 (11th Cir. 2001).
As discussed above, Entrekin established a prima facie case of retaliation
only with respect to her termination. Thus, we need not address whether the City
had legitimate, non-discriminatory reasons for initiating IA Investigations 08-03
and 08-04. The City established, through Van Etten’s and Dobbins’s deposition, as
well as attached exhibits, that Van Etten terminated Entrekin based on the findings
of IA Investigations 08-03 and 08-04, as well as Entrekin’s three prior instances of
insubordination. These instances of insubordination were documented in the
record. Thus, the City has articulated a legitimate, non-retaliatory reason for
Entrekin’s termination and the burden shifts to Entrekin to demonstrate that the
City’s proffered reasons are pretext. See Pennington, 261 F.3d at 1266; Johnson,
234 F.3d at 507 n.6.
Entrekin attempts to show that the City’s proffered reasons are pretext by
asserting that her actions during the sexual harassment training session did not
constitute insubordination. However, McCarthy, who conducted IA Investigation
08-04, stated in his deposition that he interviewed every supervisor that attended
Miller’s training session and that every supervisor except Himes, who admitted
that he had not been paying attention, felt that Entrekin had been insubordinate.
Based on these findings, Van Etten had a good faith belief that Entrekin had been
21
insubordinate during the training. See Total Sys. Servs., 221 F.3d 1176-77
(holding that the appropriate inquiry, in determining whether an employer’s reason
for terminating the plaintiff is pretext, is whether the employer terminated the
employee based on a “good faith belief” that the employee had done wrong, not
whether the wrong actually was committed). We also note that Van Etten did not
terminate Entrekin based solely on her fourth instance of insubordination. Van
Etten also considered the fact that Entrekin had three prior insubordination
violations. Under PCPD policy, any one of these instances of insubordination
would have provided a legitimate non-discriminatory reason for Entrekin’s
termination. In fact, no other PCPD officer had sustained more than one
insubordination violation. Based on this record, Entrekin has failed to show that
the City’s proffered reason for her termination was pretext, and we affirm the
district court’s grant of summary judgment.
AFFIRMED.
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