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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-15620
Non-Argument Calendar
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D.C. Docket No. 3:15-cv-00701-BJD-JRK
KIRBY MOHAMMED,
Plaintiff - Appellant,
versus
JACKSONVILLE HOSPITALISTS, P.A.,
a Florida Profit Corporation,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 18, 2017)
Before HULL, JORDAN, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Plaintiff Kirby Mohammed (“Plaintiff”) appeals the grant of summary
judgment on her pregnancy discrimination claims under Title VII and the Florida
Civil Rights Act in favor of her former employer, Defendant Jacksonville
Hospitalists, P.A. (“Defendant”). Concluding that Plaintiff has not shown that the
reasons Defendant has given for her termination are pretextual, we affirm.
I. BACKGROUND
A. Factual Background
Plaintiff is a licensed practical nurse, which qualifies her to provide medical
care and medication and to work in a hospital, nursing home, or doctor’s office.
Prior to beginning her employment with Defendant, Plaintiff had worked as a nurse
at several short and long-term rehabilitation facilities and as a traveling nurse
performing home-health care nursing services. Plaintiff only did clinical work
during this time, and did not perform any administrative or marketing tasks.
Defendant is owned by three physicians—Dr. Shawn Chopra, Dr. Mark
Blatt, and Dr. Kevin Crismond—who comprise the company’s board. The practice
administrator, Drew Snyder, oversees the office staff and human resources issues,
and though he attends board meetings with the three doctors and provides input,
his role is limited to implementing what the board decides. Doctors who work for
the company do not care for patients in their own facility, but rather care for
patients in hospitals, nursing homes, hospices, and long-term care facilities. This
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system allows for the doctors to remain in a patient’s continuum of care as he is
moved among facilities.
While they were both working at the same facility, Dr. Chopra initiated
discussions with Plaintiff about her working for Defendant as a “nurse liaison.”
According to Plaintiff, Dr. Chopra described the position as one that involved
working closely with doctors and visiting different hospitals and facilities to
promote the company’s services in order to gain clientele, essentially becoming the
“face” of the company. Dr. Chopra told Plaintiff that the position was being
developed, and he would discuss hiring her with his colleagues. Plaintiff
expressed interest in the position if it was something that she could “grow with.”
Dr. Chopra raised the possibility of Plaintiff taking on this role in a board
meeting, where it was discussed that the role would be to serve as an intermediary
between the doctors and the facilities they visit, as well as the ones that they did
not visit, to strengthen and develop relationships because the doctors did not have
the time to do so themselves. Dr. Chopra testified that the board wanted the nurse
liaison to visit facilities “independently and be mobile,” and that the outcome of
the nurse liaison’s efforts would be “the development of relationships and the
improvement of business.” Dr. Chopra acknowledged that because the position
was newly created, there would be a learning curve for both Plaintiff and the
doctors, though Dr. Chopra nevertheless recommended Plaintiff as being a good fit
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for the position. Snyder testified that, at her interview, Plaintiff indicated that she
understood the purpose of the position was to increase the number of facilities that
Defendant’s doctors visited, ensure that all of the patients requiring post-hospital
care were discharged to facilities where Defendant’s doctors visited, and to
improve relationships with existing facilities. Plaintiff testified that after her
interview, she understood the position to involve meeting with doctors and case
managers, as well as representatives of facilities where Defendant did not already
have doctors in order to build that relationship.
Plaintiff was ultimately hired and began working for Defendant on July 16,
2014. Plaintiff’s offer letter indicated that there would be a 90-day probationary
period, after which there would be a performance appraisal. Plaintiff was not
guaranteed a minimum of 90 days of employment, and Plaintiff understood that
during this probationary period, she was an at-will employee. She reported
primarily to Drs. Chopra and Blatt. There was no formal training for the position.
Although the doctors provided Plaintiff with guidance, Dr. Chopra testified that the
role was one that did not require training, but rather the initiative required to
initiate contact with facilities and build relationships with them.
Plaintiff testified that she performed a significant amount of data entry
during her first week of employment. She requested a meeting with Drs. Chopra
and Blatt to ensure that she would be able to do nurse liaison tasks, which she was
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not doing consistently by the first week in August, when the meeting was held.
While Plaintiff states that the doctors were “very complimentary,” Dr. Chopra
testified that they raised concerns about not seeing new facilities or an increase in
business, and reiterated to Plaintiff that she needed to show initiative and work
toward developing the business. After the meeting, Plaintiff’s job description was
updated to include daily meetings with the doctors and staff at the hospital, and she
visited the other facilities that the doctors worked at more frequently.
Plaintiff testified that she could not visit existing facilities without an
introduction first because the facility representatives would not know who she was,
though she did call each facility every day to ensure the facilities were satisfied
and Defendant’s patients were properly cared for. Plaintiff also testified that she
did visit new facilities on her own initiative when the opportunity arose, dropping
off pens and cups at new facilities if she saw them while en route to dropping off
prescriptions at various facilities, which was one of her job duties. Plaintiff
testified to visiting seven to ten of these facilities during the course of her
employment, though Dr. Blatt testified that he wanted five visits per week.
Plaintiff also called facilities from a list of nursing rehab facilities in the area,
sometimes “randomly,” to introduce herself and the company. Plaintiff testified
that she did not arrange any meetings with any facility other than those done at the
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direction of the doctors, that she did not arrange any kind of promotional events,
and she did not bring any new clients to Defendant.
At Dr. Chopra’s request, Plaintiff arranged a meeting with Riverwood
Rehabilitation, a facility that Defendant previously had a relationship with but that
had been lost as a client because of poor communication. Dr. Chopra testified that
Plaintiff was late for the meeting, brought the wrong refreshments, and was
dressed inappropriately. Plaintiff denies that she was late and brought the wrong
refreshments, but acknowledges that Dr. Chopra expressed his concerns regarding
her attire. Drs. Chopra and Blatt both testified that the meeting was poorly
organized and did not accomplish what it was supposed to.
Plaintiff also attended a meeting with Dr. Blatt at Lifecare of Jacksonville,
which was also a facility whose relationship with Defendant had soured because of
poor communication. Plaintiff acknowledged that she was late for this meeting.
Dr. Blatt testified that Plaintiff was inappropriately dressed, and that the facility
administrator was visibly put-off by Plaintiff’s attire and conduct. From this
incident, Dr. Blatt concluded that Plaintiff did not have the right mindset for her
role. Dr. Blatt also noted incidents of Plaintiff’s unprofessional behavior while at
the hospital and interacting with hospital staff. Dr. Blatt recalled being frustrated
with Plaintiff’s job performance and informally counseling Plaintiff about
improving, but did not document these interactions in writing.
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Plaintiff, who initially learned that she was pregnant on August 7, 2014,
found out on August 23, 2014, that she was having twins. Plaintiff informed Dr.
Chopra of her pregnancy that same day. According to Plaintiff, Dr. Chopra
responded by saying, “F**k. What are we going to do? This sucks. Are you
going to be able to do your job?”1 Despite Plaintiff’s assurances that she could
continue to perform her job, Dr. Chopra questioned whether she would be to
continue to travel to facilities and get in and out of her car. When Dr. Blatt learned
of Plaintiff’s pregnancy from Dr. Chopra, Dr. Blatt said, “That means she’s going
to do a worse job.” Dr. Blatt testified that he had concerns about Plaintiff’s
performance from “very early on,” and that there were plans to fire her before she
announced her pregnancy.
Plaintiff testified that she became insecure and worried about her job
security after she informed Dr. Chopra of her pregnancy. Plaintiff claims that after
her pregnancy announcement, Dr. Chopra did not respond as promptly to calls and
text messages. Plaintiff notes that despite Dr. Blatt and Dr. Chopra assuring her
that she was doing a good job and that her pregnancy would not affect her job
security, the doctors were “definitely contemplating firing her.” At least two other
employees were pregnant during their time in Defendant’s employ, but were not
fired.
1
Dr. Chopra claims that he did not swear, but rather congratulated her, told her that “children
are a blessing,” and sought to reassure her that her pregnancy would not affect her job.
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On September 1, 2015, about nine days after Plaintiff announced her
pregnancy and forty-five days after Plaintiff began working for Defendant, Snyder,
along with Drs. Chopra and Blatt, met to determine whether to terminate Plaintiff.
Dr. Chopra testified that the meeting focused on Plaintiff’s failure to generate a
“significant increase in the business” and “some issues with the facilities that we
had interacted with her at,” ultimately concluding that “our expectation wasn’t
met” and the nurse liaison position was not the solution to Defendant’s problem.
Dr. Chopra further noted that Defendant received leads on new clients from a
colleague who had explained that generating such leads was simple, which
prompted Dr. Chopra to conclude that they had hired the wrong person for
Plaintiff’s position. Generally, issues with Plaintiff’s “attire, the inconsistency or
the disorganization of the meetings, the lack of development of new business, and
the fact that multiple office staff . . . said that they felt she wasn’t doing anything”
prompted the board to conclude unanimously that they should fire Plaintiff. The
board members knew that Plaintiff was pregnant and expressed concern about the
ramifications of firing a pregnant employee, but Snyder told the board that because
they were eliminating the position and not firing Plaintiff because of her
pregnancy, there should be no problem.
Plaintiff met with Snyder and Dr. Chopra on September 19, 2014. Dr.
Chopra told Plaintiff that, although she had done a good job thus far, the practice
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had decided to eliminate her position because her salary could not be justified, as
the position was not producing the results that the doctors had expected it to.2 Dr.
Chopra offered to give Plaintiff a good reference. On a form provided to
Defendant’s payroll provider, the reasons indicated for Plaintiff’s termination were
“lack of work” and “position eliminated.”
B. Procedural History
Plaintiff filed a charge with the Equal Employment Opportunity
Commission and received a right-to-sue letter on June 8, 2015. Plaintiff filed a
civil complaint against Defendant on June 11, 2015, alleging that she was fired
because of her pregnancy, and was therefore subjected to sex discrimination in
violation of Title VII, 42 U.S.C. § 2000e et seq., and the FCRA, Fla. Stat. § 760.01
et seq.3 Defendant moved for summary judgment, which the district court granted,
finding that Plaintiff had failed to rebut Defendant’s reasons for terminating her as
pretextual. Plaintiff timely appealed.
II. DISCUSSION
A. Standard of Review
2
Defendant notes that the board also ended the employment of a nurse practitioner who had
been hired in anticipation of increased business.
3
Plaintiff also asserted under the Americans with Disabilities Act and the FCRA that she was
discriminated against because of her “perceived disability,” though the district court granted
summary judgment for Defendant on these claims. Plaintiff has not raised these claims again on
appeal.
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We review a district court’s grant of summary judgment de novo, viewing all
evidence and drawing all reasonable inferences in favor of the nonmoving party.
Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1254 (11th Cir. 2012).
Summary judgment is proper only when “there 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). A genuine issue of material fact exists when “a reasonable jury
could return a verdict for the nonmoving party.” Gate Gourmet, 683 F.3d at 1254
(internal quotation marks omitted).
B. Whether Summary Judgment was Properly Granted
1. Discrimination Claims under Title VII
Title VII prohibits employers from discriminating against an employee
because of pregnancy, and a claim for pregnancy discrimination requires the same
analysis as claims based on sex discrimination. 4 Id. at 1254–55. A plaintiff can
show discrimination through circumstantial evidence, as Plaintiff attempts to do
here. Holland v. Gee, 677 F.3d 1047, 1055 (11th Cir. 2012).
In such cases, we typically apply the McDonnell Douglas burden-shifting
framework. Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
Under this framework, a plaintiff must establish a prima facie case of
4
The Florida Civil Rights Act is modeled after Title VII, and so Plaintiff’s claim under that
statute is analyzed under the same framework and does not require separate discussion. Alvarez
v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1271 (11th Cir. 2010); Delva v. Cont’l Grp., Inc.,
137 So. 3d 371, 375–76 (Fla. 2014) (holding that the FCRA prohibits pregnancy discrimination).
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discrimination, which requires showing that “1) the plaintiff was a member of a
protected class, 2) she was qualified to do the job, 3) she was subjected to an
adverse employment action, and 4) similarly situated employees outside of the
protected class were treated differently.” Id. A plaintiff who successfully makes
this showing “creates a presumption of discrimination,” which requires the
employer to then “articulate a legitimate, nondiscriminatory reason for its actions.”
Id. (internal quotation marks omitted). If the employer does so, the burden shifts
back to the plaintiff, who must then show that the employer’s proffered reasons are
pretextual and not the real reason for the employment action, but that unlawful
discrimination is. Id. A plaintiff must meet the given reasons “head on and rebut
[them]” through showing “weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions” in the employer’s reasons. Id. at 1055–56
(internal quotation marks omitted). As this Court has noted, “if an employee
cannot rebut her employer’s proffered reasons for an adverse action but offers
evidence demonstrating that the employer also relied on a forbidden consideration,
she will not meet her burden” under the McDonnell Douglas framework. Quigg v.
Thomas Cty. Sch. Dist., 814 F.3d 1227, 1238 (11th Cir. 2016).
Plaintiff argues that she has presented sufficient evidence to allow a
reasonable jury to conclude that Defendant’s stated reasons for her termination
were pretexual. Plaintiff also argues that the district court did not construe the
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evidence in the light most favorable to her. Plaintiff contends that ultimately she
presented a “convincing mosaic of circumstantial evidence” that would allow a
jury to infer discrimination.5 Like the district court, we assume that Plaintiff has
established a prima facie case of discrimination.
Defendant notes that Plaintiff was terminated because of her poor
performance and the determination that her position did not generate the revenue
expected to support it. An employer’s burden at this step is “exceedingly light,”
Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir. 1997), and the employer does not
need to show that it was actually motivated by these reasons. Holland, 677 F.3d at
1055. We agree with the district court that Defendant has satisfied this burden.
2. Whether Plaintiff Has Shown that Defendant’s Reasons for
Her Termination are Pretextual
Turning to the question of whether Plaintiff has sufficiently shown that
Defendant’s proffered reasons for her termination are pretexual, and that unlawful
pregnancy discrimination was the real reason, we conclude she has not.
5
This Court has noted that the McDonnell Douglas framework is not the exclusive means to
evaluate workplace discrimination under Title VII, and a plaintiff can survive summary
judgment if she can show “a convincing mosaic of circumstantial evidence that would allow a
jury to infer intentional discrimination by the decisionmaker.” Smith v. Lockheed-Martin Corp.,
644 F.3d 1321, 1328 (11th Cir. 2011) (footnote omitted) (quoting Silverman v. Bd. of Educ., 637
F.3d 729, 734 (7th Cir. 2011)). Ultimately though, the plaintiff’s required showing is the same:
the plaintiff must show that the evidence, “when viewed as a whole, ‘yields the reasonable
inference that the employer engaged in the alleged discrimination.’” Holland, 677 F.3d at 1056
(quoting Smith, 644 F.3d at 1326).
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In finding that Plaintiff had not demonstrated pretext, the district court noted
that Plaintiff admitted to being “slow to start” the nurse liaison tasks, despite
knowing that self-initiative was required in the position; that she did not
consistently go to new facilities or set up meetings with contacts; that she was late
to meetings; that she secured employment for her mother at a facility she visited
while on the job; and that the doctors had concerns about Plaintiff’s job
performance “very early on” and met with Plaintiff before her pregnancy
announcement to reiterate their expectations.
Plaintiff offers several arguments to show she was not actually fired for
“poor job performance.” Plaintiff argues that, to the extent she had any “slow
start” in performing actual nurse liaison tasks, Defendant is to blame because she
was initially assigned data entry tasks, and that it was she who took initiative to
ensure she was no longer assigned tasks that were not nurse liaison tasks. Plaintiff
also argues that if the doctors had any concerns “very early on” with her
performance, she was never informed or told her job was in jeopardy, including at
the early-August meeting. Plaintiff further argues that the “remedial” tasks she
was performing when she was terminated were either part of her job description or
were assigned by Snyder, who was not her supervisor, and so her doing remedial
work instead of visiting facilities should not be counted against her. Indeed,
Plaintiff argues that developing new business was only one of her duties, and that
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the work that she did do in maintaining and strengthening existing relationships
shows she did not in fact show poor job performance. Finally, Plaintiff notes that
she was never disciplined for any tardiness, attire, or performance issues.
Each of these reasons is a variation on a common theme: that any blame for
Plaintiff’s “poor performance” rests on Defendant, not Plaintiff. Notably, Plaintiff
admits that she did not bring any new clients to the company, may have dressed
unprofessionally on occasion, was late to a meeting with clients, and helped her
mother get a position while on the clock for Defendant. Even assuming that
Defendant’s doctors were ineffective in communicating with Plaintiff the
expectations of her role and in helping her succeed in growing their business,
Plaintiff has not refuted the fact that her supervisors viewed her job performance as
poor, nor has Plaintiff shown that concern about her allegedly poor performance
was merely a pretext, with discrimination being the real reason for her termination.
See Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010)
(“The inquiry into pretext centers on the employer’s beliefs, not the employee’s
beliefs . . . . The question is whether her employers were dissatisfied with her
for . . . non-discriminatory reasons, even if mistakenly or unfairly so, or instead
merely used those complaints . . . as cover for discriminating against her.”).
Concerning Plaintiff’s alleged failure to generate new business sufficient to
fund the position created for that purpose, Plaintiff argues that Defendant did not
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communicate any specific goals for the number of facilities she should be visiting
or create any other metrics for measuring her performance. Plaintiff further argues
that it was not until after she announced her pregnancy that the doctors suggested
that her position should generate enough new business to be “self-supporting.”
Plaintiff also argues that the value of her non-marketing efforts was ignored, and
the fact that the practice now needs to fill the nurse liaison position and has lost
access to facilities since Plaintiff was fired refutes Defendant’s proffered reason for
her termination. Plaintiff also takes issue with the characterization of her job as
primarily a marketing position and attempts to refute specific criticisms of her
marketing efforts.
These arguments however, do not refute “head on,” the fact that at the time
of her termination, Defendant’s doctors made a business decision that Plaintiff
continuing to work in the nurse liaison position was not financially justified. Any
mischaracterization of Plaintiff’s efforts does not change the reality that she
brought no new clients to Defendant, and securing new clients was the impetus for
creating the position as well as the means by which Defendant was to earn the
revenue to pay for the position. And there is no dispute that at least some portion
of Plaintiff’s job responsibilities included generating new business relationships.
As with an employer’s assessment of performance issues, the wisdom of an
employer’s business decision to terminate an employee or eliminate a position may
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be faulted, but that decision itself cannot be unlawful so long as it is not actually
based on discrimination. Id. at 1266. Here, Plaintiff has not met the standard for
showing that the financial unviability of her position was just a pretext for the
decision to terminate her, with her pregnancy being the true reason.
More generally, Plaintiff argues that the temporal proximity between her
pregnancy announcement and her termination should give rise to an inference of
discrimination. While temporal proximity may be evidence of pretext, such
evidence alone is insufficient to survive summary judgment. See Hurlbert v. St.
Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006). In this case,
any temporal proximity between Plaintiff’s informing the doctors about her
pregnancy and her termination does not directly rebut either of Defendant’s given
reasons for her termination. Similarly, Plaintiff’s proffer of statements made by
Drs. Chopra and Blatt upon learning of Plaintiff’s pregnancy do not prove pretext.
Plaintiff had demonstrated unsatisfactory job performance up to that point, and the
company had questioned the financial viability of her job position, given her sub-
par performance.
Nor does Plaintiff’s argument that Defendant’s failure to clearly and
consistently articulate its reasons for Plaintiff’s termination show pretext. Plaintiff
argues that the “unsatisfactory work performance” justification for her termination
was not put forth until after this lawsuit was filed, but even if this were true,
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Plaintiff acknowledges that the stated reason for her termination at the time was
that the practice could not justify paying her salary given the poor results she had
shown. Plaintiff must rebut each of Defendant’s stated reasons for termination
before she can show pretext, and she has clearly failed to do so.
Finally, based on these shortcomings in Plaintiff’s proof, we similarly
conclude that Plaintiff has not otherwise shown a “convincing mosaic of
circumstantial evidence” that allows the inference that she was intentionally
discriminated against because of her pregnancy. Because Plaintiff has failed to
rebut the non-discriminatory reasons for her termination, a jury cannot reasonably
conclude from the facts here that her termination was based only on her pregnancy.
See Quigg, 814 F.3d at 1238.
III. CONCLUSION
Plaintiff has not shown that Defendant’s stated reasons for her termination
were pretextual or that the evidence would otherwise allow a reasonable jury to
infer that she was terminated because of her pregnancy, and so the district court’s
order granting summary judgment for Defendant is AFFIRMED.
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