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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-13883
Non-Argument Calendar
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D.C. Docket No. 2:12-cv-00707-JHH
TANISHA C. FOSTER,
Plaintiff-Appellant,
versus
BIOLIFE PLASMA SERVICES, LP,
a partnership between BioLife Plasma Inc.
and Baxter Healthcare Corp.,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Alabama
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(May 15, 2014)
Before MARCUS, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Tanisha Foster appeals the district court’s grant of defendant BioLife Plasma
Services, LP’s (“BioLife”) motion for summary judgment as to her complaint
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alleging race discrimination in violation of Title VII of the Civil Rights Act of
1964 (“Title VII”) and 42 U.S.C. § 1981. She argues that: (1) she presented
sufficient evidence to permit a jury to disbelieve BioLife’s proffered legitimate,
nondiscriminatory reason for terminating her; and (2) the district court improperly
weighed witness credibility. After careful review, we affirm.
The relevant, undisputed facts are these. Foster, an African-American, was
employed as a lab technician at BioLife, which was in the business of collecting
high-quality plasma and processing it into therapies to be used in the treatment of
medical disorders. Under the company’s standard operating procedures, shipments
of plasma that it received were required to have a shipping date that was
consecutive to the receiving date, or else an external nonconformance (“ENC”)
form had to be initiated to determine if the plasma was still usable. On July 13,
Foster came across a partially reviewed lab folder, and noticed that the shipping
and receiving dates on a shipping form in the folder were July 5 and July 7. She
alerted Marvin King, a co-worker who had trained her, about the nonconsecutive
dates, and they initiated an ENC form.
BioLife later discovered that the shipping date on the shipping form had
been changed from July 2 to July 5 at some point on July 13. The company
launched an investigation into the matter, and Foster was interviewed by
management about her contact with the form, as well as that of two other African-
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American employees, King and Carmela Montgomery. The investigation was
unable to pinpoint who had changed the date on the form, but it determined that
Foster, King, and Montgomery were the individuals most likely to have falsified
the form, and BioLife terminated all three, allegedly because it lost confidence in
them. None of the Caucasian employees who had come into contact with the form
in question were disciplined.
We review a district court’s order granting summary judgment de novo,
“viewing all the evidence, and drawing all reasonable inferences, in favor of the
non-moving party.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th
Cir. 2005). Summary judgment is proper if the pleadings, depositions, and
affidavits show that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. Mayfield v. Patterson Pump Co.,
101 F.3d 1371, 1374 (11th Cir. 1996). A mere “scintilla” of evidence supporting
the opposing party’s position will not suffice; instead, there must be a sufficient
showing that the jury could reasonably find for that party. Brooks v. Cnty.
Comm’n of Jefferson Cnty., 446 F.3d 1160, 1162 (11th Cir. 2006).
A court should not generally grant summary judgment or a directed verdict
based solely on the favorable testimony of an interested witness. See Hibiscus
Assocs. Ltd. v. Bd. of Trustees of the Policemen & Firemen Retirement Sys., 50
F.3d 908, 921 (11th Cir. 1995) (directed verdict). However, if the testimony of an
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interested witness is inherently plausible and corroborated by other evidence, then
summary judgment may be appropriate. See id.
Title VII makes it unlawful for employers to “discriminate against any
individual with respect to [her] compensation, terms, conditions, or privileges of
employment, because of such individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1).
Under 42 U.S.C. § 1981, “[a]ll persons . . . shall have the same right . . . to make
and enforce contracts . . . as is enjoyed by white citizens,” which in an employment
context means protection against discrimination based on race. 42 U.S.C. §
1981(a); see, e.g., Standard v. A.B.E.L. Servs. Inc., 161 F.3d 1318, 1330-34 (11th
Cir. 1998). Title VII and 42 U.S.C § 1981 have the same requirements of proof
and use the same analytical framework, so it is appropriate to “explicitly address
[a] Title VII claim with the understanding that the analysis applies to the § 1981
claim as well.” Standard, 161 F.3d at 1330.
Claims based on circumstantial evidence are evaluated under the McDonnell
Douglas 1 burden-shifting framework. Burke-Fowler v. Orange County, 447 F.3d
1319, 1323 (11th Cir. 2006). If a plaintiff establishes a prima facie case, and the
employer shows a legitimate nondiscriminatory reason for its employment action,
then the plaintiff must prove that the employer’s reason is a pretext for unlawful
discrimination. Id. at 1323. A plaintiff seeking to show pretext must “meet [the
1
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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reason] head on and rebut it.” Wilson v. B/E Aerospace, 376 F.3d 1079, 1088
(11th Cir. 2004).
We do not judge whether an employer’s decisions are “prudent or fair,” and
the sole concern is whether unlawful discriminatory animus motivated an
employment decision. Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d
1354, 1361 (11th Cir. 1999). Furthermore, a reason is not pretextual “unless it is
shown both that the reason was false, and that discrimination was the real reason.”
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993). A plaintiff cannot show
pretext merely by showing that an employer’s good faith belief that she engaged in
misconduct is mistaken. EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1176-77
(11th Cir. 2000).
To the extent a plaintiff seeks to show disparate treatment of comparators,
those individuals must still be similarly situated. See Silvera v. Orange County
Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001) (concluding that plaintiff's
comparator evidence did not support a showing of pretext because the comparator
was not “similarly situated”). To establish that a defendant treated similarly
situated employees more favorably, a plaintiff must show that her comparators are
“similarly situated in all relevant aspects.” Holifield v. Reno, 115 F.3d 1555, 1562
(11th Cir. 1997). We have held, at least in disciplinary contexts, that the quality
and quantity of a comparator’s conduct must be nearly identical to the plaintiff’s in
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order to prevent courts from second-guessing a reasonable decision by the
employer. Maniccia v. Brown, 171 F.3d 1364, 1368-69 (11th Cir. 1999). While
not always the case, differences in treatment by different supervisors or
decisionmakers can seldom be the basis for a viable claim of discrimination.
Silvera, 244 F.3d at 1261 n.5.
Here, we are unpersuaded by Foster’s claim that the district court erred by
relying on the testimony of an interested witness when granting summary
judgment. As the record shows, the court considered the deposition testimony of
three individuals, numerous exhibits, and multiple declarations. See Hibiscus
Assocs. Ltd., 50 F.3d at 921. As for Foster’s claim that the district court
improperly disregarded the testimony of Foster’s supervisor, Sutton Burleigh, we
do not see how this testimony was probative of pretext, given that Burleigh’s
testimony was consistent with that of another employee and indicated that Burleigh
did not know whether management narrowed down the timeframe of the
falsification. Nor did the district court improperly discredit the testimony of Foster
and King. Though it called Foster’s assertions “self-serving,” it did not disregard
them, and simply noted that they did not meet her burden. As for King’s
testimony, it was largely consistent with the district court’s opinion; the only
difference was King’s claim that BioLife’s investigation was racially biased, which
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was speculative and not based on personal knowledge, and thus insufficient to
oppose a motion for summary judgment. See Fed.R.Civ.P. 56(c)(4).
Second, we find no merit to Foster’s argument that there were
inconsistencies in BioLife’s account sufficient for a reasonable jury to find pretext.
Based on our review, there is nothing in the record to indicate that BioLife fired
Foster for any reason other than the falsification issue. Rather, manager Erick
Stevick testified that he ultimately fired Foster, King, and Montgomery because his
investigation narrowed down a time period when the shipping date could have
been changed, and they were the ones with access to the folder during that time.
He did not, however, ever determine who exactly had falsified the form. Stevick’s
statement that he did not fire Foster, King, and Montgomery for falsification was
not inconsistent with this testimony: While their termination notices indicated that
a falsification issue was involved, they also clarified that the reason for termination
was lost confidence in the employees due to possible falsification. We do not
analyze whether a reason was “prudent or fair,” and BioLife did not contradict
itself about its reason, so Foster has failed to show any discriminatory animus.
Damon, 196 F.3d at 1361.
Furthermore, BioLife’s reason for firing Foster was that management
believed she falsified the form, and Foster failed to offer any evidence indicating
this reason was false. All that Foster has pointed to is evidence that she did not
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falsify the form. Because this evidence failed to suggest what management
believed, it failed to satisfy the burden of showing “both that the reason was false,
and that discrimination was the real reason.” St. Mary’s Honor Ctr., 509 U.S. at
515. We recognize that Stevick conceded that an employee who improperly
changed a form with the intent to correct misinformation would be issued only a
Level II noncomformance, which typically did not result in termination. However,
nothing in the record suggests that BioLife knew that Foster had been attempting to
correct misinformation by changing the date -- indeed, Foster had denied to
BioLife that she had changed the date and had denied that she had called the
shipping center in an effort to ascertain the correct date. Thus, there is no evidence
to contradict BioLife’s reason for her termination.
Finally, none of Foster’s proffered comparators were similarly situated to
her, and therefore their treatment did not show pretext. Holifield, 115 F.3d at
1562. Although other employees had failed to initiate an ENC in this instance and
were not terminated, the investigation did not reveal that they were involved in
falsifying the date here. Falsification and failing to initiate an ENC are two
separate issues, so the “quality and quantity” of these proffered comparators’
misconduct was not identical to Foster’s. Maniccia, 171 F.3d at 1368-69. As for
employee Christopher Pruitt who allegedly falsified a date in another instance, he
did not report to Stevick, and his discipline was handed down by a different
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supervisor. See Silvera, 244 F.3d at 1261 n.5. Furthermore, Pruitt worked in a
different department than Foster, with different job duties. Therefore, Pruitt was
not similarly situated to Foster in all relevant aspects, and was not a proper
comparator. Holifield, 115 F.3d at 1562.
In short, Foster did not show that there was a genuine issue of material fact
as to whether BioLife’s legitimate nondiscriminatory reason for terminating her
was pretextual, and summary judgment was proper.
AFFIRMED.
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