Case: 14-11963 Date Filed: 12/30/2014 Page: 1 of 14
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-11963
Non-Argument Calendar
________________________
D.C. Docket No. 3:12-cv-01045-BJD-MCR
VALINDA CARTER,
Plaintiff-Appellant,
versus
COLUMBIA COUNTY, BOARD OF COUNTY COMMISSIONERS,
MARK HUNTER,
in his official capacity as Sheriff, Columbia County, Florida,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 30, 2014)
Before HULL, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Case: 14-11963 Date Filed: 12/30/2014 Page: 2 of 14
Plaintiff Valinda Carter appeals the district court=s grant of summary
judgment to Defendants on her race discrimination and retaliation claims asserted
under Title VII of the Civil Rights Act of 1964 (ATitle VII@), 42 U.S.C. ' 2000e et
seq., and the Florida Civil Rights Act (the AFCRA@), Fla. Stat. ' 760.01 et seq.
Plaintiff=s claims arise out of her termination as a dispatcher and shift supervisor for
the Columbia County Communications Center. The district court found that
Plaintiff failed to establish a prima facie case of discrimination or retaliation and,
alternatively, that Plaintiff did not present any evidence of pretext to rebut the
legitimate reasons offered to explain her termination. For the reasons that follow,
we affirm.
I. BACKGROUND
Plaintiff, an African-American woman, began working as a dispatcher in the
Columbia County Sheriff=s Office in 1999. In December 2008, the Columbia
County Board of County Commissioners (ACCBCC@) transferred the Sheriff=s
dispatch unit to a centralized County Communications Center. As a result of the
transfer, Plaintiff became an employee of the CCBCC. Plaintiff was promoted to
the position of shift supervisor in August 2009. In this position, Plaintiff continued
to perform her regular dispatching duties but also assumed responsibility for training
new hires and monitoring other dispatchers on her shift.
2
Case: 14-11963 Date Filed: 12/30/2014 Page: 3 of 14
The incident that led to Plaintiff=s termination occurred on August 1, 2011.
Plaintiff was at home when she received a phone call from her brother, Kavin Carter,
who had been stopped by Columbia County Deputy Joshua Latimer for a seatbelt
violation. According to Plaintiff, the purpose of her brother=s call was to maintain
an Aopen line@ so that Plaintiff could hear what was happening during the traffic stop.
At some point during the stop, Latimer took the phone from Kavin Carter and began
speaking to Plaintiff. Plaintiff claims that Latimer was Ahostile, arrogant, cocky,
and otherwise rude@ during his conversation with her.
Latimer immediately prepared a report about the traffic stop and his
interaction with Plaintiff. In the report, Latimer stated that he began the
conversation by greeting Plaintiff. According to Latimer, he was unable to say
anything else because Plaintiff began yelling at him and accusing him of racially
profiling her brother. Latimer claimed that he attempted to inform Plaintiff over
her yelling that she could call his supervisor, Corporal Greg Horne, if she wished to
file a complaint, but that he eventually hung up the phone because he did not want to
hear Plaintiff yell at him any longer. Latimer submitted his report, along with a
recording of the traffic stop from his dash mounted camera and body microphone, to
Corporal Horne. Horne forwarded the report and recording to Captain Jeff
Coleman, who then sent the materials to Major Wallace Kitchings.
3
Case: 14-11963 Date Filed: 12/30/2014 Page: 4 of 14
On August 5, 2011, Communications Center Director Sandy Waschek gave
Plaintiff a copy of Latimer=s report, which she had received from Major Kitchings a
few days prior. Upon learning that the report would be placed in her personnel file,
Plaintiff prepared a rebuttal statement. In her rebuttal, Plaintiff indicated that
Latimer conducted himself in an unprofessional and Ahostile@ manner while
speaking with her during the traffic stop, yelling and engaging in an Aarrogant, snide,
tirade@ during which Plaintiff was not allowed to speak. Plaintiff emailed her
rebuttal to Waschek on August 7, 2011.
When Plaintiff drafted her rebuttal, she was not aware that her brother=s traffic
stop had been recorded by Latimer=s dash camera and body microphone. Major
Kitchings sent the recordings to Waschek on August 16, 2011. After reviewing the
recordings, Waschek concluded that they were inconsistent with Plaintiff=s account
of Latimer=s conduct in her rebuttal. Wascheck met with County Manager Dale
Williams and CCBCC Human Resources Director Michele Crummitt to discuss a
proper response. Based on their review of the recordings, Williams and Crummitt
agreed that Plaintiff=s rebuttal was Ablatantly false.@ Consequently, Waschek
placed Plaintiff on administrative leave pending a full investigation into the incident.
On August 24, 2011, Wascheck met with Plaintiff, Crummitt, and Assistant
Director of the Communications Center Patricia Coker. During the meeting,
4
Case: 14-11963 Date Filed: 12/30/2014 Page: 5 of 14
Waschek informed Plaintiff of the CCBCC=s decision to terminate her employment.
The stated reason for Plaintiff=s termination was violation of a County policy
prohibiting lying, falsification of a document, or other dishonesty, as evidenced by
the discrepancy between the recorded evidence and Plaintiff=s rebuttal statement.
Plaintiff subsequently filed this action asserting race discrimination and
retaliation claims under Title VII and the FCRA. The district court granted
summary judgment to Defendants on all of Plaintiff=s claims. This appeal ensued.
II. DISCUSSION
A. Standard of Review
We review de novo the district court=s grant of summary judgment.
Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012).
In conducting our review, we draw all factual inferences and view all evidence Ain
the light most favorable to the non-moving party.@ Moton v. Cowart, 631 F.3d
1337, 1341 (11th Cir. 2011). Summary judgment is only appropriate if Athere is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.@ Fed. R. Civ. P. 56(a).
5
Case: 14-11963 Date Filed: 12/30/2014 Page: 6 of 14
B. Plaintiff=s Race Discrimination Claim
Title VII prohibits employment discrimination on the basis of a statutorily
protected characteristic such as race.1 42 U.S.C. ' 2000eB2(a)(1). Where, as in
this case, a plaintiff relies on circumstantial evidence to prove discrimination, we
apply the familiar burden-shifting framework articulated in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Alvarez v. Royal Atl.
Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). Under that framework, the
plaintiff must first establish a prima case of discrimination. Id. If the plaintiff
meets her burden, the employer can rebut the resulting presumption of
discrimination by articulating a legitimate non-discriminatory reason for its
challenged employment action. Id. Plaintiff then has an opportunity to produce
evidence that the proffered reason is a pretext for discrimination. Id.
1. Plaintiff failed to establish a prima facie case of discrimination.
The available methods of establishing a prima facie case Aare flexible and
depend on the particular situation.@ Id. As relevant to this case, Plaintiff can meet
1
The same analysis applies to Plaintiff=s Title VII and FCRA claims. See Jones v. United Space
Alliance, L.L.C., 494 F.3d 1306, 1310 (11th Cir. 2007) (AFlorida courts apply Title VII caselaw
when they interpret the FCRA@). Plaintiff also references 42 U.S.C. ' 1981 in the opening
paragraph of her amended complaint. To the extent Plaintiff intended to assert a discrimination
claim under ' 1981, that claim is also governed by the Title VII analysis. See Chapter 7 Tr. v.
Gate Gourmet, Inc., 683 F.3d 1249, 1257 (11th Cir. 2012) (noting that Title VII and ' 1981 claims
have the same requirements and are governed by the same analytical framework).
6
Case: 14-11963 Date Filed: 12/30/2014 Page: 7 of 14
her burden with evidence that (1) she is a member of a protected class, (2) she was
qualified for the position that she held, (3) she was terminated from that position,
and (4) in terminating her employment, Defendants treated Plaintiff less favorably
than a similarly situated employee outside of her protected class. Smith v.
LockheedBMartin Corp., 644 F.3d 1321, 1325 (11th Cir. 2011). Defendants
concede that Plaintiff has shown the first three elements. As to the fourth element,
Plaintiff contends that Defendants treated her less favorably than Tiffany Aderholt, a
white dispatcher who was suspended rather than terminated for allegedly similar
misconduct.
We agree with the district court that Aderholt is not a proper comparator
because she was not Asimilarly situated@ to Plaintiff. See Holifield v. Reno, 115
F.3d 1555, 1562 (11th Cir. 1997) (explaining that employees are Asimilarly situated@
for purposes of establishing a prima facie case if they are Ainvolved in or accused of
the same or similar conduct and are disciplined in different ways@). Based on the
record evidence, Aderholt was disciplined for (1) cursing at a deputy in front of
other employees at the Communications Center and (2) subsequently refusing to
answer a call from the same deputy and abandoning her work station. Aderholt=s
misconduct was classified by the County disciplinary policy as Group I offenses
involving discourtesy and warranting suspension, which is the discipline that
7
Case: 14-11963 Date Filed: 12/30/2014 Page: 8 of 14
Aderholt received for both incidents.2 Plaintiff, on the other hand, was terminated
for lying and making false accusations against Latimer. Plaintiff=s misconduct was
classified by the policy as a Group III offense involving lying, falsification of
documents, or other dishonesty. The policy recommended termination for a first
Group III offense.
Plaintiff=s attempt to reframe Aderholt=s misconduct as an offense similar to
her own is not supported by the record. Contrary to Plaintiff=s suggestion, there is
no evidence that Aderholt falsified documents or asserted fabricated misconduct
allegations against another employee. Moreover, Plaintiff=s own assessment that
Aderholt=s conduct was Amuch worse@ than her own, because it occurred twice and
while Aderholt was on duty, is irrelevant. See Alvarez, 610 F.3d at 1266-67
(emphasizing that discriminatory intent must be gauged from the employer=s
perspective); Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1325 (11th Cir.
2006) (A[d]ifferent types and degrees of misconduct may warrant different types and
degrees of discipline@).
Although Plaintiff relied solely on a comparator theory in the district court,
she argues on appeal that there is other evidence of intentional discrimination
sufficient to establish a prima facie case. As Plaintiff correctly notes, her Afailure to
2
Aderholt was terminated in March 2012 for poor work performance.
8
Case: 14-11963 Date Filed: 12/30/2014 Page: 9 of 14
produce a comparator does not necessarily doom@ her discrimination claim. Smith,
644 F.3d at 1328. Even in the absence of a comparator, summary judgment is
inappropriate if the plaintiff Apresents circumstantial evidence that creates a triable
issue concerning the employer=s discriminatory intent.@ Id. However, Plaintiff has
failed to present such evidence in this case.
As an example of other evidence, Plaintiff cites a warning Waschek allegedly
received from an unidentified person in the Sheriff=s Office not to discipline Plaintiff
because she would go to the NAACP. Assuming this warning occurred, it is not
indicative of intentional discrimination. If anything, Waschek=s neutral
enforcement of the County=s disciplinary policy in spite of the warning undercuts
any inference of racial discrimination. Plaintiff also relies on a statement by Major
Kitchings, during his investigation concerning the rebuttal statement, that this was
not Plaintiff=s Afirst incident.@ Plaintiff does not explain, and we do not see, how
this statement could possibly indicate racial animus. The only other evidence
Plaintiff presents is her own unsubstantiated belief that Defendants Ahad their minds
made up about Plaintiff from the beginning.@ Such conclusory allegations are
insufficient to support a plausible inference of intentional discrimination. Mayfield
v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996); see also Ellis v.
9
Case: 14-11963 Date Filed: 12/30/2014 Page: 10 of 14
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (Amere conclusions and unsupported
factual allegations are legally insufficient to defeat a summary judgment motion@).
2. Plaintiff failed to rebut the legitimate reason offered by Defendants to
explain her termination.
Assuming Plaintiff could establish a prima facie case of discrimination,
Defendants still are entitled to summary judgment. Defendants contend that
Plaintiff was fired because she lied and fabricated allegations against Latimer in her
rebuttal statement, an offense that warrants immediate termination under the
County=s disciplinary policy. Defendants argue further that Plaintiff=s false
statements called into question her trustworthiness: an essential quality for a
dispatcher. These explanations constitute legitimate nondiscriminatory reasons for
Plaintiff=s termination. See Holifield, 115 F.3d at 1564 (describing the employer=s
intermediate burden as Aexceedingly light@); see also Chapman v. AI Transp., 229
F.3d 1012, 1024 (11th Cir. 2000) (en banc) (noting that Athe employer=s burden is
merely one of production@).
At this stage, Plaintiff must present some evidence of pretext to withstand
summary judgment. Chapman, 229 F.3d at 1024-25. A plaintiff may show
pretext A>either directly by persuading the court that a discriminatory reason more
likely motivated the employer or indirectly by showing that the employer=s proffered
explanation is unworthy of credence.=@ Jackson v. State of Ala. Tenure Comm=n,
10
Case: 14-11963 Date Filed: 12/30/2014 Page: 11 of 14
405 F.3d 1276, 1289 (11th Cir. 2005) (quoting Tex. Dep=t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 1095 (1981)). Whichever method is
used, the plaintiff=s pretext evidence must permit a reasonable inference that the
challenged employment action was motivated by unlawful discriminatory animus.
Alvarez, 610 F.3d at 1266. The district court correctly held that Plaintiff failed to
meet this burden.
Plaintiff=s pretext argument primarily consists of her denial that she ever was
dishonest, and her insistence that the information provided in her rebuttal was
truthful and accurately described her perception of Latimer=s conduct. This
argument does not account for the numerous and obvious discrepancies between the
video and audio recording of Latimer=s conduct and Plaintiff=s description of his
conduct in the rebuttal. Given the recorded evidence, Plaintiff=s unsupported denial
of misconduct is insufficient to establish pretext. Id. (A[t]he inquiry into pretext
centers on the employer=s beliefs, not the employee=s beliefs@).
The only other evidence Plaintiff cites to establish pretext is the more
favorable treatment allegedly received by white dispatcher Aderholt. According to
Plaintiff, the inconsistent application of discipline creates doubt about the proffered
reasons for Plaintiff=s termination and demonstrates hostility towards Plaintiff. As
discussed, the record shows that Aderholt did not engage in the same type of
11
Case: 14-11963 Date Filed: 12/30/2014 Page: 12 of 14
misconduct as Plaintiff. Thus, the fact that Aderholt did not receive the same
discipline as Plaintiff does not demonstrate pretext. See Kragor v. Takeda Pharm.
Am., Inc., 702 F.3d 1304, 1308 n. 1 (11th Cir. 2012) (AThe opportunity provided to a
plaintiff to show pretext is simply an opportunity to present evidence from which the
trier of fact can find unlawful discrimination.@).
C. Plaintiff=s Retaliation Claim
Title VII=s anti-retaliation provision prohibits retaliation against an employee
for opposing a discriminatory employment practice or participating in an
Ainvestigation, proceeding, or hearing@ concerning employment discrimination. 42
U.S.C. ' 2000eB3(a). Retaliation claims based on circumstantial evidence are
analyzed under the McDonnell Douglas burden-shifting framework discussed
above. Brown v. Ala. Dep=t of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010). A
plaintiff can establish a prima facie case of retaliation by showing that (1) she
engaged in statutorily protected activity, (2) she suffered an adverse employment
action, and (3) there is a causal relationship between the two events. Id. The
employer then has the opportunity to articulate a non-retaliatory reason for its
employment action, which the plaintiff can rebut with evidence of pretext. Id. at
1181-82.
Plaintiff acknowledges that she did not actually engage in any protected
12
Case: 14-11963 Date Filed: 12/30/2014 Page: 13 of 14
activity. In support of her prima facie retaliation case, Plaintiff relies on a
Aperception theory@ of protected conduct. See Fogleman v. Mercy Hosp., Inc., 283
F.3d 561 (3d Cir. 2002). Under the perception theory, a plaintiff can show
retaliation based on her employer=s mistaken belief that she engaged in protected
activity. Id. at 571-72. Although Plaintiff denies that she ever complained about
race discrimination, she claims that she was targeted and ultimately terminated
because Defendants mistakenly believed Latimer=s report that Plaintiff had accused
him of racial profiling. According to Plaintiff, this satisfies the protected activity
requirement.
We have not adopted the perception theory of retaliation, and this case does
not require us to decide whether the theory is valid in this Circuit. Assuming
Plaintiff can somehow establish protected activity and the other prongs of her prima
facie case, Defendants assert that Plaintiff was terminated because she lied and
fabricated allegations against Latimer in her rebuttal statement. Plaintiff=s conduct,
which is well-documented in the record, was categorized as a Group III offense
warranting immediate termination under the County=s disciplinary policy. In
addition, Plaintiff=s rebuttal statements called into question her trustworthiness,
which is an essential quality for a dispatcher. These explanations constitute
legitimate non-retaliatory reasons for Plaintiff=s termination, which Plaintiff has
13
Case: 14-11963 Date Filed: 12/30/2014 Page: 14 of 14
failed to rebut with any evidence of pretext. Defendants are thus entitled to
summary judgment on Plaintiff=s retaliation claim. See Rojas v. Florida, 285 F.3d
1339, 1344 (11th Cir. 2002) (affirming summary judgment on a plaintiff=s retaliation
claim where she failed to present sufficient pretext to rebut the non-retaliatory
reasons offered for her termination).
III. CONCLUSION
For all of the above reasons, we find that the district court properly granted
summary judgment to Defendants on Plaintiff=s Title VII and FCRA claims.
Accordingly, the district court=s judgment is AFFIRMED.
14