[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-11617 OCTOBER 28, 2011
Non-Argument Calendar JOHN LEY
CLERK
________________________
D.C. Docket No. 6:09-cv-01102-MSS-GJK
SHARON BENTLEY,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
ORANGE COUNTY, FLORIDA,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 28, 2011)
Before MARCUS, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Sharon Bentley appeals from the district court’s grant of summary judgment
in favor of Orange County, Florida, in her employment discrimination suit under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a), 3(a), and the Family
and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2615(a). On appeal, she
argues that: (1) she presented appropriate comparators for her Title VII discrimination
claim, and the district court wrongly analyzed similarity under the ‘nearly identical’
standard; (2) she made out a prima facie FMLA retaliation claim, and because the
district court failed to view the evidence in the light most favorable to her, it failed
to detect a material issue regarding pretext; and (3) regarding her Title VII retaliation
claim, she provided sufficient evidence to demonstrate that Orange County’s reasons
for her termination were pretextual. After thorough review, we affirm.
We review a district court’s grant of summary judgment de novo, applying the
same legal standard used by the district court. Johnson v. Bd. of Regents of Univ. of
Ga., 263 F.3d 1234, 1242 (11th Cir. 2001). We draw all factual inferences in a light
most favorable to the non-moving party. Id. at 1243.
First, we find no merit to Bentley’s argument that she presented appropriate
comparators for her Title VII discrimination claim. Under Title VII, it is unlawful for
an employer “to fail or refuse to hire or to discharge any individual, or otherwise 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). To set out a prima facie case for disparate treatment in a race
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discrimination case, the plaintiff may show that: (1) she is a member of a protected
class; (2) she was qualified for the position; (3) she suffered an adverse employment
action; and (4) she was replaced by a person outside her protected class or was treated
less favorably than a similarly-situated individual outside her protected class.
Maynard v. Bd. of Regents of the Univ. of the Fla. Dep’t of Educ., 342 F.3d 1281,
1289 (11th Cir. 2003).
Intentional discrimination claims under the disparate treatment theory can be
proven using either direct or circumstantial evidence of discrimination.
Burke-Fowler v. Orange County, Fla., 447 F.3d 1319, 1322-23 (11th Cir. 2006).
When a claim involves circumstantial evidence, the district court analyzes the case
using the burden-shifting framework set out in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Under McDonnell Douglas, the plaintiff bears the initial burden
of presenting sufficient evidence to allow a reasonable jury to determine that she has
satisfied the elements of her prima facie case. Id. at 802.
In determining whether employees are similarly situated for purposes of
establishing a prima facie case, a court must consider whether the employees are
involved in or accused of the same or similar conduct, and were disciplined in
different ways. Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999). Thus, we
require that “the quantity and quality of the comparator’s misconduct be nearly
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identical to prevent courts from second-guessing employers’ reasonable decisions and
confusing apples with oranges.” Id.
Here, the district court correctly granted summary judgment on Bentley’s
disparate treatment claim. The parties do not dispute that Bentley is
African-American, was qualified for her position as a correctional officer, and
suffered an adverse employment action when Orange County terminated her. Thus,
only the fourth element of the prima facie case -- whether the county treated her less
favorably than a similarly situated individual outside her protected class -- is at issue
here. Despite Bentley’s arguments to the contrary, we generally require that the
plaintiff provide comparator employees whose misconduct was ‘nearly identical’ to
the plaintiff’s, and this panel is bound to follow that precedent. Although the
individuals that Bentley named as comparators were not members of her protected
class, none of them were engaged in nearly identical conduct -- in which she
misrepresented the nature of her plans to take a cruise, and then failed to follow
proper procedures for notifying officials of the duration of that absence. Rather, the
two female employees she named were not charged with fraud or dishonesty
violations, and the two male employees she named were charged with making
fraudulent statements, but neither also violated Orange County leave policies like
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Bentley did. Because Bentley failed to offer appropriate comparators, she failed to
make out a prima facie case.
We are also unpersuaded by Bentley’s FMLA claim. Under the FMLA, an
eligible employee is entitled to take unpaid FMLA leave for “a total of 12 workweeks
. . . during any 12-month period” for several enumerated reasons, including for “a
serious health condition that makes the employee unable to perform the functions”
of her position. 29 U.S.C. § 2612(a)(1)(D). For violations of the FMLA, an employee
may raise two types of claims: (1) interference claims, and (2) retaliation claims, in
which the employee alleges that her employer discharged or discriminated against her
for engaging in a practice protected by the FMLA. 29 U.S.C. § 2615(a)(1), (2).
To state a claim for retaliation under the FMLA, the employee must prove, by
a preponderance of the evidence, that: (1) she is entitled to the claimed benefit, (2)
she suffered an adverse employment action, and (3) the adverse action was
“intentional” and “motivated” by her participation in the protected activity,
establishing a causal connection. Strickland v. Water Works & Sewer Bd. of the City
of Birmingham, 239 F.3d 1199, 1207 (11th Cir. 2001); Wascura v. City of S. Miami,
257 F.3d 1238, 1248 (11th Cir. 2001); Burlington Northern & Santa Fe Ry. v. White,
548 U.S. 53, 68 (2006). If the employee establishes a prima facie FMLA retaliation
claim, the burden shifts to the employer to demonstrate that it would have taken the
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same action without regard to the employee’s FMLA status. See Strickland, 239 F.3d
at 1208.
In this case, the district court correctly granted summary judgment on Bentley’s
FMLA retaliation claim. The first two elements of the prima facie claim are not at
issue, because the parties do not disagree that Bentley was entitled to take FMLA
leave, and that she suffered an adverse employment action when the county
terminated her. As for the third element, while termination is an intentional action,
it is not clear that it was motivated by her use of FMLA protection. Bentley does note
that the investigation started because of FMLA leave misuse allegations, but she was
actually terminated for fraud and dishonesty, as well as violating Orange County’s
leave policies because she did not follow the proper procedures for taking leave. But,
assuming arguendo that Bentley made a prima facie claim, the burden then shifted to
Orange County to show that it legitimately fired her for reasons not related to her use
of FMLA leave. Orange County legitimately argued that it fired Bentley because she
violated policies prohibiting improper behavior, and taking leave without notifying
the supervisor for the missed shift, and Bentley has not shown that to be untrue or of
questionable credibility. Because Bentley has failed to show that Orange County’s
reason was more likely motivated by her use of FMLA leave or lacking credibility,
the district court did not err in granting summary judgment on this claim.
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Finally, we reject Bentley’s Title VII retaliation claim. In order to establish a
prima facie case for retaliation, a claimant generally must show that (1) she engaged
in statutorily protected activity; (2) she suffered the type of materially adverse action
that would dissuade a reasonable employee from engaging in the statutorily protected
activity; and (3) there was a causal relationship between the events. Burlington, 548
U.S. at 57; Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2000).
Under McDonnell Douglas, if a plaintiff employee establishes a prima facie
case, the burden shifts to the defendant employer to articulate a legitimate reason for
the employment action. 411 U.S. at 802. If the employer proffers a legitimate,
non-discriminatory reason for its employment action, the plaintiff must then show,
by a preponderance of the evidence, that the reason is “a pretext for unlawful
discrimination.” McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008). “[A]
reason cannot . . . be a pretext for discrimination 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) (emphases and quotation omitted). Conclusory
allegations or unsupported assertions of discrimination “are not sufficient to raise an
inference of pretext . . . .” Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376-77
(11th Cir. 1996).
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Here, the district court correctly granted summary judgment on Bentley’s Title
VII retaliation claim. The parties do not disagree that Bentley engaged in a statutorily
protected activity by providing testimony for an internal sexual harassment
investigation, and that her termination was the kind of adverse action that would
dissuade an employee from doing so. Only the third element regarding causal
connection is at issue. Bentley suggested a causal connection by stating that the
supervisor responsible for her termination, a friend of the employee who was
investigated for sexual harassment, said that people who participated in the
investigation would face negative consequences. However, even if we assume
arguendo that Bentley made out a prima facie claim, she still did not show that
Orange County’s legitimate reasons for firing her -- fraud and dishonesty and
violating the leave policy -- were a pretext for the unlawful discrimination. Thus,
district court did not err in granting summary judgment on Bentley’s Title VII
retaliation claim.
AFFIRMED.
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