Case: 16-10579 Date Filed: 03/27/2017 Page: 1 of 11
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-10579
Non-Argument Calendar
________________________
D.C. Docket No. 4:15-cv-00064-RH-CAS
SANDRA F. ADDISON,
Plaintiff - Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(March 27, 2017)
Before MARTIN, JORDAN, and ANDERSON, Circuit Judges.
PER CURIAM:
Sandra F. Addison appeals the district court’s order granting summary
judgment in favor of the Florida Department of Corrections. Ms. Addison argues
that the district court erred in rejecting her race and age discrimination claims, as
Case: 16-10579 Date Filed: 03/27/2017 Page: 2 of 11
well as her retaliation claim. The Department, in response, contends that Ms.
Addison failed to present sufficient evidence that she suffered an adverse
employment action because of her race or age, or because she had engaged in
protected activity. After reviewing the record and the parties’ briefs, we affirm.
I
Because we write for the parties, we assume their familiarity with the
underlying facts of the case and recite only what is necessary to resolve this appeal.
The Department operates the Gulf Correctional Institution, which has three
facilities: Gulf Main, Gulf Annex, and Gulf Forestry Camp. Ms. Addison, an
African-American woman over the age of 50, began working for the Department in
1990, eventually becoming captain at Gulf Annex.
In October of 2012, however, the Department transferred Ms. Addison and
25 other officers (some of whom were also African-American) to Gulf Main as
part of a broad reorganization. The transfer did not affect Ms. Addison’s title,
duties, pay, or hours, but she preferred being at Gulf Annex.
At Gulf Main, Ms. Addison took over a shift that had previously belonged to
a white captain. Her new subordinates apparently did not like this, allegedly
refusing her orders on several occasions and falsely accusing her of using
derogatory language. Ms. Addison filed multiple incident reports regarding
2
Case: 16-10579 Date Filed: 03/27/2017 Page: 3 of 11
insubordination and inmate abuse, but the Department did not correct the
problems.
On February 10, 2014, during the morning meal, an inmate threw a food tray
at correctional officer April Faircloth. Herman Sapp, the on-duty sergeant,
questioned Ms. Faircloth. Ms. Faircloth told Mr. Sapp that an inmate threw a food
tray at her, but missed. Ms. Faircloth also spoke with Ms. Addison, and told her
the same thing. Ms. Addison asked Ms. Faircloth if she needed medical attention,
but she said no. Ms. Addison then instructed Ms. Faircloth to complete an incident
report, which she did, but Ms. Addison left her shift before reviewing it. In the
incident report, Ms. Faircloth deviated from what she had told Ms. Addison and
Mr. Sapp and stated that she had been hit with the food tray and food.
The following day, Colonel Crayton Shaw reviewed Ms. Faircloth’s incident
report and interviewed her. Mr. Shaw learned that Ms. Faircloth had reported the
incident to Ms. Addison and realized that Ms. Addison had not filed her own staff
battery report. So Mr. Shaw completed the paperwork for a staff battery, notified
the inspector general’s office, briefed Warden James Blackwood, and transferred
the inmate to Gulf Annex. He also instructed Ms. Faircloth to undergo a medical
evaluation, which she did. The evaluation did not reveal any injuries.
Upon learning of the incident and Ms. Addison’s alleged failure to report a
staff battery, Mr. Blackwood instructed the assistant warden, James Peters, to
3
Case: 16-10579 Date Filed: 03/27/2017 Page: 4 of 11
review the relevant incident reports and determine what happened. Mr. Peters
detailed his findings in a memorandum to Mr. Blackwood on February 14, 2014.
After reviewing the memorandum, Mr. Blackwood concluded that Ms. Addison
had violated Department policy by failing to report a staff battery, and
recommended that Ms. Addison be terminated.
On February 18, 2014, Ms. Addison received a pre-discipline letter notifying
her of the Department’s intention to take disciplinary action that could result in
termination. Ms. Addison subsequently attended a pre-determination conference,
where she was able to present her side of the story. Ms. Addison testified on her
own behalf and called Mr. Sapp as her witness. They both maintained that Ms.
Faircloth had said that she had not been hit by the tray. But Ms. Addison admitted
knowing that Ms. Faircloth had been hit with food and had broken the seal on her
chemical spray. Still, she explained that she did not believe those circumstances
triggered the staff-battery reporting requirements.
About a month later, Mr. Blackwood offered Ms. Addison a demotion in lieu
of termination, on the condition that she release all claims against the Department.
He offered her a pre-disciplinary settlement agreement to that effect, which Ms.
Addison signed. She was demoted to sergeant, a position she still holds. Prior to
her demotion, Ms. Addison had never received any formal disciplinary action.
Kenneth Stephens, who is younger and white, replaced Ms. Addison as captain.
4
Case: 16-10579 Date Filed: 03/27/2017 Page: 5 of 11
II
We review a district court’s grant of summary judgment de novo. See
Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). In doing so, we draw all
inferences and review all of the evidence in the light most favorable to the non-
moving party. See id. The party moving for summary judgment bears the burden
of demonstrating that there is no genuine dispute of any material fact and that it is
entitled to judgment as a matter of law. See id.
III
Ms. Addison filed this lawsuit against the Department, alleging that her
transfer to Gulf Main and her demotion to sergeant were motived by race and age
discrimination. She also alleged that they were in retaliation for her complaints
about discrimination and other subordinate and inmate misconduct. Ms. Addison
asserted claims under Title VII of the Civil Rights Act of 1964, the Florida Civil
Rights Act, and the Florida Whistle-blower’s Act.
Federal and Florida antidiscrimination laws prohibit discrimination on the
basis of race and age. See 42 U.S.C. § 2000e-2(a)(1); Fla. Stat. § 760.10(1)(a).
Claims brought under the FCRA are analyzed under the same standards as Title
VII because the FCRA is modeled on Title VII. See, e.g., Jones v. United Space
Alliances, L.L.C., 494 F.3d 1306, 1310 (11th Cir. 2007) (“Florida courts apply
Title VII caselaw when they interpret the FCRA”).
5
Case: 16-10579 Date Filed: 03/27/2017 Page: 6 of 11
Where, as here, there is no direct evidence of discrimination, a plaintiff must
demonstrate discrimination circumstantially, usually by relying on the burden-
shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973). To establish a prima facie case of race or age discrimination a
plaintiff must show that (1) she is a member of a protected class; (2) she was
qualified for the job; (3) she suffered an adverse employment action; and (4) her
employer treated similarly situated employees outside the protected class more
favorably or, for a termination, was replaced by a person outside the protected
class. See, e.g., Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999).
A plaintiff who establishes a prima facie case of discrimination creates “a
presumption that the employer unlawfully discriminated against [him or her].”
Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). To rebut this
presumption, the employer must articulate a legitimate, nondiscriminatory reason
for its decision. See McDonnell Douglas, 411 U.S. at 802–03. Once the employer
proffers a nondiscriminatory reason, the presumption disappears and the plaintiff
retains the ultimate burden of persuasion to demonstrate that the employer
intentionally discriminated on the basis of a protected classification. See id.
Ms. Addison is a member of two protected classes based on her age (which
is above 40) and race (black). And there is no dispute that she was qualified to
hold her previous position as captain. Ms. Addison relies on two incidents as her
6
Case: 16-10579 Date Filed: 03/27/2017 Page: 7 of 11
adverse employment actions: the transfer to Gulf Main and her demotion from
captain to sergeant.
An employee suffers an adverse employment action when there is “a serious
and material change in the terms, conditions, or privileges of employment.” Davis
v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001) (emphasis in
original). A lateral transfer, without more, does not amount to an adverse
employment action. See, e.g., Hinson v. Clinch County Ga. Board of Educ., 231
F.3d 821, 829 (11th Cir. 2000) (“[A] transfer to a different position can be
‘adverse’ if it involves a reduction in pay, prestige or responsibility.”). Ms.
Addison has not shown that her transfer to Gulf Main amounted to an adverse
employment action because there is no evidence that her title, duties, pay, or hours
changed in any material way (if at all). Ms. Addison therefore cannot rely on her
transfer to Gulf Main to establish a prima facie case of discrimination.
Ms. Addison did, however, provide sufficient evidence showing a prima
facie case of race and age discrimination as to her demotion to sergeant. Ms.
Addison’s demotion from captain to sergeant constitutes an adverse employment
action because she received a reduction in prestige and responsibility. See id. And
she was replaced with an individual outside of her protected classes, a younger,
white male.
7
Case: 16-10579 Date Filed: 03/27/2017 Page: 8 of 11
Because Ms. Addison established a prima facie case that her demotion was
discriminatory, the burden shifted to the Department to articulate a legitimate,
nondiscriminatory basis for the demotion. The Department met its burden and
proffered a nondiscriminatory reason. Specifically, according to the Department,
Ms. Addison was demoted for failing to properly report the battery on her
subordinate, Ms. Faircloth, as required by the Department’s policies.
After the Department came forth with a nondiscriminatory reason, Ms.
Addison was left to show that the proffered reason was pretext for discrimination.
See McDonnell Douglas, 411 U.S. at 804. To do so, and create an issue of fact,
she had to demonstrate “such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer’s proffered legitimate reasons for
its action that a reasonable factfinder could find them unworthy of credence.”
Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997). Ms. Addison
provided two theories in support of her argument that the purported failure to
report a staff battery was pretext.
Ms. Addison first pointed to discussions her subordinates had been having
about the possibility that she would be replaced by Mr. Stephens. Specifically, one
subordinate testified that there was “gossip” and another said there were “rumors”
along these lines. Because this gossip apparently predated the battery on Ms.
Faircloth, Ms. Addison contends that it establishes that the failure to report the
8
Case: 16-10579 Date Filed: 03/27/2017 Page: 9 of 11
staff battery was pretextual, because management intended to replace Ms. Addison
all along.
There are two major problems with this argument. First, what a few
subordinates heard from a group of other unidentified subordinates—even if
somehow admissible—says nothing about what the warden, the ultimate
decisionmaker, actually intended to do. Second, we know nothing about the
context of these rumors. Vague gossip such as this is hardly evidence that, even if
Ms. Addison was on the cusp of demotion before the incident involving Ms.
Faircloth, the intent to demote her was based on discriminatory animus.
Ms. Addison also alleged that two employees outside her protected class—
Ms. Faircloth (a younger person) and Mr. Sapp (a white person)—were not
disciplined for equally serious policy violations. In this Circuit, alleged
comparators “must be similarly situated ‘in all relevant respects.’” Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004). Otherwise, the alleged
preferential treatment towards non-identical comparators does not indicate pretext.
See id.
Ms. Faircloth and Mr. Sapp are not proper comparators. Ms. Faircloth was
Ms. Addison’s subordinate. Although Ms. Faircloth’s false statements in her own
report are deserving of discipline, it is of a different nature from Ms. Addison’s
failure to report a battery on a subordinate. Mr. Sapp is also not a valid comparator
9
Case: 16-10579 Date Filed: 03/27/2017 Page: 10 of 11
because he did not hold the same supervisory role as Ms. Addison. Ms. Addison,
not Mr. Sapp, was the officer in charge of the situation. She failed to meet the
higher standards required of her rank. And her demotion ultimately reflected her
failure to carry out her supervisory duties.
Accordingly, Ms. Addison failed to provide sufficient evidence to create a
jury question as to whether the Department’s articulated legitimate,
nondiscriminatory reason was pretextual. The district court properly granted
summary judgment on Ms. Addison’s discrimination claims.
IV
The Florida Public Whistle-blower’s Act prohibits state and local agencies
from retaliating against an employee for disclosing a violation or suspected
violation of law or regulation by another employee, agent, or independent
contractor, which produces a substantial and specific danger to the public’s health,
safety, or welfare. See Fla. Stat. § 112.318(5)(a). It also prohibits retaliating
against an employee for disclosing an act or suspected act of another employee,
agent, or independent contractor of gross neglect of duty committed. See id.
To establish a prima facie case of retaliation under the Act, a plaintiff must
show that (1) she engaged in a protected activity (2) and suffered an adverse
employment action (3) that was causally related to the protected activity. See Rice-
Lamar v. City of Fort Lauderdale., 852 So. 2d 1125, 1131–33 (Fla. 4th DCA 2003)
10
Case: 16-10579 Date Filed: 03/27/2017 Page: 11 of 11
(establishing a prima facie case of retaliation under Florida’s Public Whistle-
blower Act is the same as under Title VII). As in the discrimination context,
employer then has the burden to proffer a legitimate, non-retaliatory reason for the
adverse employment action. See Sierminski v. Transouth Financial Corp., 216
F.3d 945, 950 (11th Cir. 2000). If the employer articulates a legitimate reason, the
burden shifts back to the employee to demonstrate that the proffered reason “is
merely pretext for prohibited, retaliatory conduct.” Id.
Assuming Ms. Addison has established a prima facie case, her retaliation
claims fails for similar reasons as her discrimination claims. The Department
maintains that Ms. Addison was demoted for not filing a staff battery incident
report, and Ms. Addison has not presented evidence allowing a reasonable jury to
find that the Department’s reason was pretextual. The district court therefore
properly granted summary judgment on Ms. Addison’s retaliation claims.
V
The district court did not err in granting summary judgment.
AFFIRMED.
11