[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 23, 2005
No. 05-10905 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-02608-CV-S
KELLI EMBRY,
Plaintiff-Appellant,
versus
CALLAHAN EYE FOUNDATION HOSPITAL,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(August 23, 2005)
Before HULL, WILSON and FAY, Circuit Judges.
PER CURIAM:
Kelli Embry appeals through counsel the district court’s grant of summary
judgment, pursuant to Fed.R.App.P. 56(c), to her employer, Callahan Eye
Foundation Hospital (“Callahan”), a “full service surgical facility,” on her claims
of disparate treatment based on race, filed pursuant to Title VII of the Civil Rights
Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2(a) and 42 U.S.C. § 1981; and her
Title VII claims of retaliation, filed pursuant to 42 U.S.C. § 2000e-3.1 Embry
argues that genuine issues of material fact existed on whether she established a
prima facie case of disparate treatment or retaliation, and, if she established prima
facie cases of retaliation, on whether Callahan’s articulated reasons for its
employment decisions were pretextual. For the reasons set forth more fully below,
we affirm the court’s grant of summary judgment.
Embry, an African-American employee of Callahan, who was hired as a
patient-accounting clerk in August 2000, filed a civil complaint, asserting that
Callahan (1) discriminated against her because of her race by disciplining her more
harshly than similarly situated Caucasian employees; (2) discriminated against her
because of her race by subjecting her to other unequal treatment, including (a) not
1
As the district court noted, Title VII and § 1981 “have the same requirements of proof
and use the same analytical framework.” See Standard v. A.B.E.L. Services, Inc., 161 F.3d
1318, 1330 (11th Cir. 1998)). Thus, we conclude that Embry could not establish prima facie
cases of disparate treatment under § 1981 for the same reasons as are applicable under Title VII,
and references in this opinion only will be to Embry’s Title VII claims.
2
providing her with orientation when she first was hired,2 (b) forcing her to “clock
in and out,” and (c) denying her privileges given to white employees; and
(3) retaliated against her for engaging in the protected activity of opposing these
discriminatory employment practices by disciplining her.
Callahan filed a motion for summary judgment on all of Embry’s claims,
arguing that no genuine issue of material fact existed on Embry’s claims of
disparate treatment because Embry had (1) not established an “adverse
employment action,” (2) failed to establish that Callahan treated persons outside of
her protected class more favorably, and (3) not produced evidence showing that
Callahan’s non-discriminatory reasons for her treatment were pretextual. Callahan
argued that it was due summary judgment on Embry’s retaliation claims because
Embry could not show either that she engaged in protected activity prior to the
alleged retaliatory treatment, or that the treatment was based on protected activity.
Callahan further contended that, even if Embry could establish a prima facie case
of retaliation based on her one-day suspension, she could not show that Callahan’s
non-retaliatory reason for suspending her was pretextual.
2
Apparently based on its assumption that Embry had abandoned her claim that Callahan
had discriminated against her by not immediately providing her with orientation, the district
court did not address this claim in its decision granting Callahan summary judgment. Because
Embry has not addressed this absence on appeal, we deem any arguments on it abandoned. See
Cooper v. Southern Co., 390 F.3d 695, 734 n.24 (11th Cir. 2004) (concluding that plaintiff
abandoned any issues on appeal for which she offered no argument), petition for cert. filed, No.
05-88 (U.S. July 14, 2005).
3
In support of its motion for summary judgment, Callahan filed a declaration
by Keren Elkins, Embry’s supervisor at Callahan, in which Elkins attested that
(1) Callahan hired Embry as a patient-account representative on September 5,
2000; (2) as one of several patient-account representatives in the business office,
Embry was responsible for submitting insurance claims for payment; (3) from
Embry’s date of hire until February 28, 2001, Mark Teske was the acting
supervisor over the business office; and (4) in February 2001, Elkins began her
duties as the Director of Patient Accounts, with supervisory responsibility over the
business office.
Elkins further attested that (5) in May 2001, Michelle Capps, another
patient-account representative in Callahan’s business office, had to leave work and
go to the hospital because she had an allergic reaction to a coworker’s perfume;
(6) on August 23, 2001, to address this allergy problem, Callahan distributed a
memorandum, implementing a new policy prohibiting the use of fragrances that
could cause an employee to have an allergic reaction;3 (7) in September 2001, this
3
This memorandum included as follows:
Due to increase in number of employees, patients, and visitors with moderate to
severe allergies, the Dress Code has been updated to include the following
requirement: Please refrain from using perfumes, colognes, scented lotions,
scented aftershave, and other fragrant products that might send your co-worker
into an allergic reaction.”
Elkins stated during her deposition that, although this memorandum arguably was limited to
4
policy was placed in the employee newsletter; (8) from September 2001 until April
10, 2002, Callahan attempted to “manage the perfume problem” by conducting
informal counseling with individual employees who wore fragrances; (9) on April
10, 2002, Elkins, Libby Bailey, Callahan’s Chief Operating Officer, and Karen
Burleson, Callahan’s Director of Human Resources, conducted a meeting, at which
Embry was in attendance; (10) during this meeting, employees in Callahan’s
business office were warned that they should not wear any scents or fragrances;
(11) after this meeting, Elkins, Burleson, and Bailey agreed that, starting that day,
any employee who violated this fragrance policy would be suspended for the
remainder of the day; and (12) on April 16, 2002, Elkins suspended Embry for
violating this fragrance policy.4
Elkins stated, as well, that, (13) when Elkins was informed that Michael
Morrison, a part-time employee in the business office who was not working at
Callahan in the Fall of 2001, when the policy was instituted, had been wearing
cologne, Elkins investigated the complaint;5 (14) during this meeting with
fragrances that “could cause an employee to have an allergic reaction,” Callahan interpreted the
policy as prohibiting the use of all fragrances.
4
Elkins explained in further detail during her deposition that, after Capps complained
about having an allergic reaction to someone’s fragrance in the business office on April 16,
2002, Elkins walked through the office and smelled a fragrance only on Embry and her African-
American coworker, Cherry King, both of whom were suspended.
5
Elkins testified during her deposition that Morrison is Caucasian.
5
Morrison, (i) Elkins did not detect cologne on Morrison, and (ii) Morrison denied
knowing about the fragrance policy; and (15) since April 10, 2002, Elkins had
investigated all allegations relating to the fragrance policy and had not determined
that any other employees had violated it. Finally, Elkins attested that, (16) because
of repeated abuses of the lunch break by employees, all of the employees in the
business office were required to “clock in and out” for lunch; (17) Elkins sent an e-
mail to these employees to inform them of this policy change; (18) Elkins was not
aware of any times that Capps violated this policy; and (19) Elkins did not know
that Embry complained to Burleson about race discrimination in May 2001.
Callahan also introduced a copy of Elkins’s deposition, which included, in
addition to the above-referenced testimony, that, upon becoming supervisor of the
business office, Elkins decided to enforce in the office the hospital-wide policy
prohibiting employees from eating at their desks after “clocking in” at work. On
January 31, 2002, Elkins saw Embry and another African-American employee,
LeAndrenetta Nalls, eating at their desks after they “clocked in” at work, in
violation of this policy. After sending them an e-mail reminding them of this
policy, Elkins e-mailed Bailey about the violations. Bailey responded by
suggesting that Elkins discipline employees for such violations, to which Elkins
replied: “I agree . . . boy want [sic] that be fun, I can’t wait.”
6
Elkins further testified that, on February 6, 2002, after overhearing Embry
and other employees in the business office talking during work hours, she informed
these employees that they, instead, should be working. Embry responded that
“[e]verybody doesn’t work eight hours straight.” Elkins also subsequently heard
Embry continue to talk with coworkers, including stating that Elkins better not say
anything more to them about taking breaks. On the following day, Elkins and
Bailey met with Embry and gave her a written reprimand for “insubordination.”
Callahan also filed a copy of Embry’s deposition, in which Embry testified
that, after Callahan instituted its policy of requiring employees in the business
office to “clock in and out” during their lunch breaks, Embry, along with other
African-American coworkers, Nalls, King, and Sanquenetta Williams, complied
with this policy, while some of her Caucasian coworkers, including Capps, did not
comply with it and used more than the 30 minutes that they were permitted for
lunch breaks. Embry stated that, on May 31, 2001, when she and Williams were
discussing that this policy was not being equitably enforced, Capps overheard their
discussion, and Embry and Capps had a heated argument, during which they had to
be physically separated by King and Williams. Elkins subsequently spoke to
Embry about this argument, but Elkins did not discipline either Embry or Capps.
Embry further testified that, on May 31, 2001, she met with Burleson and
7
discussed her altercation with Capps, along with other concerns Embry had about
the business office.6 On February 15, 2002, Embry filed a charge with the Equal
Employment Opportunity Commission (“EEOC”), alleging that she had been
discriminated against because of her race. On April 16, 2002, Embry refused to
sign a discipline report informing her of her one-day suspension because (1) she
was wearing the same fragrance that she normally wore, and (2) Capps had not
previously had a reaction to the fragrance. Embry further stated that (1) she
believed the fragrance policy only involved keeping fragrances to a minimum and
was put in place to avoid Capps having an allergic reaction, (2) Embry asked
Capps to smell all of her lotions to ensure that they would not bother her, and
(3) Embry never wore a lotion that she had not previously tested on Capps.7
6
As an exhibit to Embry’s deposition, Callahan filed an e-mail memorandum, dated
June 5, 2001, in which Embry outlined the complaints she had about the office, and which she
shared during her meeting with Burleson on May 31, 2001. This memorandum included that
Embry believed that the enforcement of the policy concerning lunch breaks and the distribution
of work in the office was not fair and equitable, but did not mention race discrimination. Embry,
however, testified during her deposition that, during this meeting, she also complained of
disparate treatment based on race.
7
This written discipline, which was signed by Elkins, included as follows:
Employees have been reminded of the workplace policy concerning perfumes,
cologne’s and scented lotions on numerous occasions. We have several people in
the business office with severe allergies and because of this the employees have
been asked to refrain from using any type of scented perfume. Kelli has
continually ignored request by management to adhere to policy. Employees were
reprimanded in a Department meeting on April 10, 2002, of the importance of this
policy. Kelli came in to work today April 16th with some type of cologne or
lotion that could be smelled in all areas of the office. For this behavior, Kelli is
suspended for one day without pay.
8
Finally, Embry testified that coworkers Williams, King, Nalls, and Morrison had
informed her that they had not been disciplined that day, even though they also had
been wearing fragrances.
Embry responded that summary judgment was not warranted on her
disparate-treatment claim based on her suspension because a genuine issue of
material fact existed as to whether a similarly situated white employee in the
business office, that is, Morrison, was punished differently for violating Callahan’s
policy on wearing fragrances. Embry explained that Morrison was a similarly
situated employee who was treated differently because Morrison testified during
his deposition that (1) he went to an orientation session during the winter of 2002,
during which policies and the dress code were discussed; (2) Elkins told Morrison
during the winter of 2002, that she knew that he had been wearing perfume and
that he needed to stop it; (3) Morrison probably was wearing cologne on the day
that he was counseled by Elkins, and he had continued wearing cologne after that
date; and (4) Morrison had never been disciplined for this conduct.
Embry also contended that the district court should not grant summary
judgment on her retaliation claim based on her suspension because (1) she engaged
in protected activity by (i) complaining of race discrimination to Burleson in May
Embry also testified during her deposition that, at the time of her suspension, she was earning
$11.83 an hour.
9
2001, and (ii) filing an EEOC charge against Callahan in February 2002; (2) her
April 2002, suspension was an adverse employment action; and (3) she could show
a causal connection between them based on (i) their close temporal proximity, and
(ii) the series of emails between Elkins and Bailey, which reflected Elkin’s
improper motive in disciplining Embry. In addition, Embry argued that she could
show that Callahan’s articulated reason for the suspension was pretextual through
(1) proof that Morrison and other employees were not disciplined in a similar
manner for violating the fragrance policy, and (2) the January 31, 2002, e-mail
between Elkins and Bailey, which Embry contended showed that Elkins would
take pleasure from disciplining her.
Furthermore, Embry responded that genuine issues of material fact existed
as to her claim that she was treated differently than white employees in certain
terms and conditions of employment, that is, clocking in and out for lunch and
being written up for eating breakfast at her desk, because Callahan did not enforce
these policies with respect to Capps, a Caucasian employee. Embry contended that
she could prove that her February 2002, reprimand was in retaliation for her
complaints of race discrimination to Burleson in June 2001. She also argued that
she could show that any reason for this different treatment was pretextual, based on
the same evidence she had offered in relation to her suspension claims.
10
Callahan replied that Morrison was not similarly situated to Embry for
purposes of Embry’s suspension claim because Elkins never caught Morrison
wearing cologne after April 10, 2002, when Callahan decided to suspend any
employee in violation of the fragrance policy. Callahan also replied that Embry
had offered no evidence showing a causal connection between her protected
activities and her suspension because (1) her complaint of race discrimination in
May 2001 was not close in time to the suspension, and (2) the e-mail between
Elkins and Bailey, although arguably unprofessional, did not reflect a
discriminatory animus.8 In addition, Callahan asserted that summary judgment
was warranted on Embry’s remaining claims because Embry had failed to show
that (1) the conduct constituted “adverse employment actions,” and (2) Elkins was
aware that similarly situated white employees violated the policy involving
“clocking in and out” and had not disciplined them.
The district court granted Callahan’s motion for summary judgment. In
doing so, the court initially explained that it was “doubtful” that any single, or
combination of, employment actions of which Embry complained constituted an
adverse employment action because the conduct either was not adverse at all, or it
8
In support of this argument, Callahan cited to Elkins’s deposition testimony that her
comment in this e-mail, that is, “want [sic] that be fun,” was intended to be sarcastic because, at
the time in question, she was having to spend a lot of energy monitoring employees.
11
did not materially change her employment status. The court also discussed that,
even assuming that the conduct was adverse, Embry had failed to establish a prima
facie case of disparate treatment based on her suspension or other employment
practices because she had failed to identify a similarly situated employee outside of
her class who was treated more favorably. The court acknowledged that Embry
had identified Morrison as a comparator, but it concluded that Embry had offered
no evidence showing that Elkins knew or believed that Morrison was wearing
cologne on the days that he was investigated.
The court similarly determined that summary judgment was warranted as to
Embry’s retaliation claims because, as discussed above, Embry had failed to
identify any “adverse employment actions.” Moreover, although both Embry’s
May 2001 complaint to Burleson, and her filing a charge with the EEOC, qualified
as protected activity, Embry had failed to show that her February 7, 2002,
reprimand was causally related because Elkins denied knowing about the May
2001 complaint. The court also determined that, although Elkins knew that Embry
engaged in the protected activity of filing an EEOC charge on February 15, 2002,
and this activity was sufficiently close in time to establish a causal connection
between this activity and Embry’s suspension, Embry had failed to show that
Callahan’s legitimate, non-discriminatory reason for her suspension was
12
pretextual.9
Issue 1: Prima facie case of disparate treatment based on race or
retaliation
Embry argues that she established a prima facie case of disparate treatment
based on her April 2002, suspension by (1) identifying Morrison as a proper
comparator, and (2) showing that Morrison was not suspended after he violated the
fragrance policy. Embry also contends that a genuine issue existed as to her prima
facie case of disparate treatment based on Callahan’s unequal enforcement of its
policies involving employees eating during work and taking lunch breaks because
she presented evidence showing that she, as an African-American employee, was
held to a higher standard in following these policies than her Caucasian coworkers.
Finally, Embry contends that she established prima facie cases of retaliation
because her February 2002, reprimand and her April 2002, suspension were
“adverse employment actions” that were causally connected to her May 2001,
complaint of discrimination and her February 2002, EEOC charge respectively.
A court’s order granting summary judgment is reviewed de novo, “view[ing]
all evidence and all factual inferences therefrom in the light most favorable to the
9
In addressing pretext, the court specifically concluded that (1) Elkins did not suspend
Morrison because she did not believe he was wearing a fragrance, (2) Embry had failed to rebut
Elkins’s plausible testimony that the language in the relevant e-mails between her and Bailey
was sarcastic, and (3) this e-mail was sent prior to Embry filing an EEOC charge.
13
non-moving party.” Miller v. King, 384 F.3d 1248, 1258-59 (11th Cir. 2004).
“Summary judgment is appropriate when ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.’” Id. at 1259 (quotation omitted). To
survive a motion for summary judgment, the nonmoving party must proffer
evidence beyond what is asserted in the pleadings. Celotex Corp. v. Catrett, 477
U.S. 317, 324, 106 S.Ct. 2548, 2553, 91 L.E.2d 265 (1986) (citing Fed.R.Civ.P.
56(e)). Where the nonmoving party has failed “to establish the existence of an
element essential to that party’s case, and on which that party will bear the burden
of proof at trial,” no genuine issue of material fact exists. Id. at 322-23, 106 S.Ct.
at 2552.
To the extent Embry is arguing that a genuine issue of material fact existed
as to her claims of disparate treatment and retaliation, Title VII prohibits
employers from discriminating “against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-
2(a)(1). Furthermore, it is unlawful under Title VII for an employer to retaliate
against an employee “because [the employee] has opposed any practice made an
14
unlawful employment practice . . . or because he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or hearing
under this subchapter [of Title VII].” 42 U.S.C. § 2000e-3(a).
Where direct evidence of discrimination or retaliation is unavailable—as
was the case here—a plaintiff may present circumstantial evidence of
discrimination sufficient to create a jury question. Silvera v. Orange County
School Bd., 244 F.3d 1253, 1258 (11th Cir. 2001) (Title VII disparate treatment);
Sullivan v. National Railroad Passenger Corp., 170 F.3d 1056, 1059 (11th Cir.
1999) (Title VII retaliation). For claims based on circumstantial evidence, the
plaintiff bears the initial burden of establishing a prima facie case of
discrimination. Silvera, 244 F.3d at 1258. If the plaintiff is successful, the
defendant must “articulate some legitimate, nondiscriminatory reason for the
[adverse employment action].” Id. The plaintiff then may attempt to demonstrate
that the proffered reason was, in fact, merely pretext for the defendant’s acts. Id.10
“The ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.” Id. “If
the plaintiff does not proffer sufficient evidence to create a genuine issue of
10
The Supreme Court set out this three-part burden-shifting framework in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), and
Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254-55, 101 S.Ct. 1089, 1093, 67
L.Ed.2d 207 (1981).
15
material fact regarding whether each of the defendant’s articulated reasons is
pretextual, the [defendant] is entitled to summary judgment on the plaintiff’s
claim.” Chapman v. AI Transport, 229 F.3d 1012, 1024-25 (11th Cir. 2000) (en
banc) (discussing pretext in context of discrimination involving age and disability).
a. Disparate treatment
“A plaintiff establishes a prima facie case of disparate treatment by showing
that she was a qualified member of a protected class and was subjected to an
adverse employment action in contrast with similarly situated employees outside
the protected class.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th
Cir. 2004). The parties, at least implicitly, agree that Embry is a qualified member
of a protected class. Moreover, as an employee of Callahan since 2000, Embry
presumptively is qualified for the position she occupies. See Crapp v. City of
Miami Beach, 242 F.3d 1017, 1020 (11th Cir. 2001) (explaining that “[i]n cases
where a plaintiff has held a position for a significant period of time, qualification
for that position sufficient to satisfy the test of a prima facie case can be inferred”
(quotation omitted)). Thus, in determining whether a genuine issue of material fact
existed as to Embry’s claims of disparate treatment, we only need decide whether
Embry suffered an “adverse employment action,” and, if so, whether a similarly
situated non-protected employee was treated more favorably.
16
Although we have “not adopted a bright-line test for what kind of effect on
the plaintiff’s ‘terms, conditions, or privileges’ of employment the alleged
discrimination must have for it to be actionable,” we have clarified that “not all
conduct by an employer negatively affecting an employee constitutes adverse
employment action.” Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1238 (11th
Cir. 2001). Indeed, “[a]lthough the statute does not require proof of direct
economic consequences in all cases, the asserted impact cannot be speculative and
must at least have a tangible adverse effect on the plaintiff’s employment.” Id. at
1239. Thus, “an employee must show a serious and material change in the terms,
conditions, or privileges of employment.” Id. (emphasis in original). “Moreover,
the employee’s subjective view of the significance and adversity of the employer’s
action is not controlling; the employment action must be materially adverse as
viewed by a reasonable person in the circumstances” Id.
In Davis, the plaintiff’s claim of disparate treatment was predicated on two
kinds of employer acts, that is, negative job performance memoranda placed in his
file and changes in his work assignments. See id. at 1240. We determined that the
memoranda, which were not “formal” reprimands, and did not result in the plaintiff
suffering any tangible consequences in the form of loss of pay or benefits, were not
“adverse employment actions.” See id. at 1240-41. In reaching this determination,
17
we explained that “criticisms of an employee’s job performance—written or
oral—that do not lead to tangible job consequences will rarely form a permissible
predicate for a Title VII suit.” See id. at 1241. Similarly, we concluded that the
removal of the plaintiff’s title as an officer did not constitute a demotion or a
significant change in work assignments because any change in his responsibilities
was not substantial. See id. at 1243-44 (noting that “Title VII is not designed to
make federal courts sit as a super-personnel department that reexamines an entity’s
business decisions” (internal quotations and marks omitted)).
Here, Embry’s allegation that Callahan did not equitably enforce its policy
requiring employees in the business office to “clock in and out” at lunch did not
involve “a serious and material change in the terms, conditions, or privileges of
employment.” See id. at 1239. Indeed, the only employment act associated with
this policy involved Elkins sending a general e-mail to the office reminding them
of this policy. On the other hand, Embry’s allegation that Callahan did not
equitably enforce its policy requiring employees not to eat during work hours
involved the fact that Elkins reprimanded her in February 2002, in part because she
violated this policy. However, similar to the facts in Davis, Embry failed to cite to
evidence showing that this reprimand resulted in her suffering any tangible
consequences in the form of loss of pay or benefits, and it, thus, was not an
18
“adverse employment action.” See id. at 1240-41.
To the extent Embry also identified her one-day suspension as an “adverse
employment action,” we recently have explained that, following the language of
Title VII, “actions that affect compensation are considered adverse employment
actions.” See Gillis v. Georgia Dep’t of Corrections, 400 F.3d 883, 887-88 (11th
Cir. 2005) (concluding that an evaluation that directly disentitled an employee to a
raise of any significance was an adverse employment action under Title VII). In
Gillis, however, we clarified that the case did not involve disentitlement to a de
minimus raise, but, instead, revolved around an employment decision that
significantly affected the plaintiff’s compensation. See id. at 888. Assuming, as
the district court did, that Embry’s suspension began as early as 9:00 a.m., with an
hourly salary of $11.83, the most compensation lost was $88.73. Thus, this
suspension also did not constitute “a serious and material change in the terms,
conditions, or privileges of employment.” See Davis, 245 F.3d at 1239.
Even if we were to conclude that Embry’s one-day suspension involved an
“adverse employment action,” summary judgment still was warranted on this claim
because Embry failed to show that she was treated less favorably than a similarly
situated employee outside of her protected class when she was suspended for
violating Callahan’s fragrance policy. “To show that employees are similarly
19
situated, the plaintiff must show that the ‘employees are similarly situated in all
relevant respects.’” Knight v. Baptist Hospital of Miami, Inc., 330 F.3d 1313,
1316 (11th Cir. 2003) (quotation omitted). Indeed, “[t]he comparator must be
nearly identical to the plaintiff to prevent courts from second-guessing a reasonable
decision by the employer.” Wilson, 376 F.3d at 1091 (citing Silvera, 244 F.3d
at1259).11
In determining that Morrison—the only comparator identified by
Embry—was not similarly situated, the district court properly considered the
undisputed evidence that Embry attended a meeting on April 10, 2002, at which
the staff was warned that they should not wear any scents or fragrances, and
Embry’s one-day suspension resulted from Elkins smelling a fragrance on Embry
on April 16, 2002. Moreover, although Embry stated during her deposition that
she believed that this fragrance policy did not prohibit the use of all fragrances, she
did not contest that she was wearing a fragrance on the day in question.
On the other hand, Elkins testified that, upon investigating a complaint she
11
We note that, in examining claims that employees were disciplined in a disparate
manner, we have explained that “it is necessary to consider whether the employees are involved
in or accused of the same or similar conduct and are disciplined in different ways.” See
Maynard v. Bd of Regents of Universities of Fla. Dept. of Educ., 342 F.3d 1281, 1289 (11th Cir.
2003). Different panels of this Court, however, have determined that this conduct requires
“similar” conduct, see e.g. Jones v. Gerwins, 874 F.2d 1534, 1540 (11th Cir. 1989), as opposed
to “nearly identical” conduct, see e.g. Maniccia v. Brown, 171 F.3d 1364, 1368-69 (11th Cir.
1999). See Maynard, 342 F.3d at 1290.
20
received after April 10, 2002, she did not detect cologne on Morrison. Where
employees have engaged in similar conduct, but the supervisor is not aware of one
employee’s conduct, this conduct may not be considered in determining whether
the employees are “similarly situated.” See Knight, 303 F.3d at 1317 n.5.
Moreover, unlike Embry, Morrison, at least to Elkins, denied knowing about the
policy. See Abel v. Dubberly, 210 F.3d 1334, 1339 (11th Cir. 2000) (concluding
that the plaintiff and another employee were not “similarly situated” when only the
plaintiff admitted to the violation at issue), Thus, whether we apply the “similar”
or “nearly identical” analysis, Morrison was not a proper comparator. See
Maynard, 342 F.3d at 1290.12 The district court, therefore, did not err in
concluding that no genuine issue of material fact existed on whether Embry
established a prima facie case of disparate treatment.
b. Retaliation
To the extent Embry also was attempting to establish a prima facie case of
Title VII retaliation, to successfully assert such a claim, a plaintiff must show that
(1) she engaged in statutorily protected expression; (2) she suffered an adverse
12
Even in the absence of evidence showing that a “similarly situated,” employee outside
of the plaintiff’s protected status has been treated differently, a plaintiff still may be able to
establish, by circumstantial evidence, a prima facie case of discriminatory animus. See Jones v.
Bessemer Carraway Medical Center, 151 F.3d 1321, 1322-24 (11th Cir. 1998). Nevertheless,
Embry has abandoned any such argument by not raising it on appeal. See Cooper, 390 F.3d at
734 n.24.
21
employment action; and (3) the adverse action was causally related to the protected
expression. See Cooper, 390 F.3d at 740. To be considered an “adverse
employment action” under Title VII’s anti-retaliation provision, the action “must
either be an ultimate employment decision or else must ‘meet some threshold level
of substantiality.’” Stavropoulos v. Firestone, 361 F.3d 610, 616-17 (11th Cir.
2004) (citation omitted), cert. denied, 125 S.Ct. 1850 (2005). “Ultimate
employment decisions include decisions such as termination, failure to hire, or
demotion.” Id. at 617 (citation omitted).
Assuming that Embry’s May 2001, complaint and her February 2002, filing
of an EEOC charge constituted “statutorily protected expression,” the only ultimate
employment decisions Embry identified were her February 2002, reprimand and
her April 2002, one-day suspension. Similar to the analysis of whether these acts
were “adverse employment actions” for purposes of Embry’s claims of disparate
treatment, Embry failed to explain why these acts, which were not ultimate
employment decisions, nevertheless met the “threshold level of substantiality”
necessary for a retaliation claim. See id. at 618 (explaining that “not everything
that makes an employee unhappy is an actionable adverse action,” and that an
“adverse employment action” involves conduct that “alters an employee’s
compensation, terms, conditions, or privileges of employment”).
22
Even if Embry’s reprimand and suspension were “adverse employment
actions,” she only needed to show that “the decision-maker[s] [were] aware of the
protected conduct,” and “that the protected activity and the adverse action were not
wholly unrelated.” See Gupta v. Florida Bd. of Regents, 212 F.3d 571, 590 (11th
Cir. 2000) (quotation omitted). Moreover, “[a] plaintiff satisfies this [causation]
element if [s]he provides sufficient evidence of knowledge of the protected
expression and that there was a close temporal proximity between this awareness
and the adverse action.” Higdon v. Jackson, 393 F.3d 1211, 1220 (11th Cir. 2004)
(quotation and marks omitted) (reviewing grant of summary judgment in claim
filed under the anti-retaliation provision of the Americans with Disabilities Act).
However, this “temporal proximity” must be “very close.” Id. “If there is a
substantial delay between the protected expression and the adverse action[,] in the
absence of other evidence tending to show causation, the complaint of retaliation
fails as a matter of law.” Id. at 1220. Applying this analysis, we concluded in
Higdon that a three-month period between the protected activity and the adverse
employment action, in the absence of other evidence of causation, was insufficient
to establishing a prima facie case of Title VII retaliation. Id. at 1220-21.
In Maniccia v. Brown, 171 F.3d 1364 (11th Cir. 1999), we also concluded
that the district court did not err in determining that the employee failed to
23
establish this causation element. Id. at 1370. In Maniccia, the employee was
reassigned to a different position 15 months after she filed a sexual harassment
grievance against her supervisor, and her employment was terminated 21 months
later. Id. at 1369-70. We determined that (1) instead of representing a pattern of
retaliatory activity, these two employment actions were isolated events that had no
temporal relationship to her protected activity; and (2) “[t]he more than 15-month
period that elapsed between [her] grievance and the alleged adverse employment
actions belie[d] her assertion that the former caused the latter.” Id. at 1370. In
addition, we explained that the employee failed to show any other evidence
suggesting this causation. Id.
Similar to the three-month delay in Higdon, the nine-month gap between
Embry’s protected activity in May 2001 of complaining of race discrimination to
Burleson, and her February 2002 reprimand, was insufficient to establish the
requisite causation in the absence of any other evidence of causation. Moreover, in
the absence of “a close temporal relationship,” Embry failed to produce sufficient
alternative evidence showing that her protected activity and this reprimand were
“not wholly unrelated.” See Gupta, 212 F.3d at 590. Indeed, similar to the facts in
Mannicia, Embry did not cite to any other discipline she received between these
two events and, thus, failed to show a pattern of retaliatory acts. See Maniccia,
24
171 F.3d at 1370.
More importantly, Elkins was not present when Embry raised her
discrimination complaint in June 2001, and Elkins attested that she did not know
that Embry complained to Burleson about race discrimination. Embry, therefore,
failed to establish that Elkins “was actually aware of the protected expression at the
time [she] took adverse employment action.” See Brungart v. BellSouth
Telecommunications, Inc., 231 F.3d 791, 799 (11th Cir. 2000) (reasoning that “a
decision maker cannot have been motivated to retaliate by something unknown to
him”); see also Brochu v. City of Riviera Beach, 304 F.3d 1144, 1156 (11th Cir.
2002) (reasoning that “neither a court nor a jury may impute knowledge to a
decision-maker who has sworn he had no actual knowledge”). Thus, the court also
did not err in concluding that no genuine issue of material fact existed on whether
Embry successfully alleged a prima facie claim of Title VII retaliation based on her
February 2002, reprimand. See Cooper, 390 F.3d at 740.
On the other hand, as the district court concluded, the shorter period time
between Embry’s filing her EEOC charge on February 15, 2002, and her one-day
suspension on April 15, 2002, was sufficiently close to establish causation for
purposes of a prima facie case of Title VII retaliation. See Higdon, 393 F.3d at
1220. Moreover, Elkins did not testify that she was unaware of Embry’s EEOC
25
charge. Nevertheless, as discussed below, the district court correctly granted
summary judgment on this claim because Embry failed to show that Callahan’s
articulated reason for imposing the one-day suspension was pretextual.
Issue 2: Pretext
Assuming as the court did that Embry could establish a prima facie case of
retaliation based on her suspension claim, Embry argues that the court erred in
concluding that she failed to show that Callahan’s articulated reasons for its
challenged conduct were pretextual. Embry specifically contends that Callahan’s
reason for her April 2002, suspension was belied by (1) testimony that other
coworkers were not suspended for violating the fragrance policy, and (2) the
January 31, 2002, e-mail between Elkins and Bailey that Embry interprets as
showing that Elkins would take pleasure in disciplining her.
As discussed above, once a plaintiff successfully alleges a prima facie case
of retaliation, and once the employer articulates a legitimate, non-discriminatory
reason for the challenged employment action, the plaintiff must proffer sufficient
evidence to create a genuine issue of material fact regarding whether each of the
defendant employer’s articulated reasons is pretextual. Sullivan, 170 F.3d at 1059.
In determining whether the plaintiff has met this burden, courts examine whether
“such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions
26
in the employer’s proffered legitimate reasons for its action [exist, such] that a
reasonable factfinder could find [all of the reasons] unworthy of credence.”
Vessels v. Atlanta Independent School System, 408 F.3d 763, 771 (11th Cir.
2005).
As a preliminary matter, to the extent Embry has implied that Callahan’s
argument that her suspension was based on her violation of the fragrance policy
was pretextual because she was wearing a fragrance that had not previously
bothered Capps, “Title VII does not take away an employer’s right to interpret its
rules as its chooses, and to make determinations as it sees fit under those rules.”
See Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir.
1984). “[A] plaintiff employee may not establish that an employer’s proffered
reason is pretextual merely by questioning the wisdom of the employer’s reason, so
long as the reason is one that might motivate a reasonable employer.” See
Pennington v. City of Huntsville, 261 F.3d 1262, 1267 (11th Cir. 2001) (internal
quotation and marks omitted).
To the extent Embry also has cited in support of her pretext argument to the
fact that Morrison was not suspended, even though he conceded that he wore
cologne after April 10, 2002, Embry has correctly asserted that a plaintiff may
demonstrate pretext through comparative evidence. See Miles v. M.N.C. Corp.,
27
750 F.2d 867, 870 (11th Cir. 1985). However, as discussed above, Morrison is not
a proper comparator because Elkins did not catch him wearing cologne after April
10, 2002. Moreover, Embry failed to identify another proper comparator because,
assuming as true Embry’s testimony that other coworkers wore fragrances after
April 10, 2002, Elkins never caught them wearing a fragrance and, thus, did not
believe they were in violation of the policy. See Cooper, 390 F.3d at 740
(explaining that the relevant issue for pretext was not whether the employee
actually violated the employer’s rule, but whether the employer “honestly
believed” that the violation occurred).
To the extent Embry is relying on the contents of Elkins’s e-mail to Bailey
on February 1, 2002, as evidence of pretext, this e-mail included the following
comment by Elkins in response to Bailey’s suggestion that Elkins would need to
discipline employees violating the policy about not eating during work hours: “I
agree . . . want [sic] that be fun, I can’t wait.” Elkins, however, testified during her
deposition that, instead of expressing a retaliatory intent, this comment was
intended to be sarcastic because, at the time in question, she was having to spend a
lot of energy monitoring employees.
Furthermore, even assuming that this comment was not sarcastic, Embry has
failed to explain why this general statement about disciplining the employees in the
28
business office, and which was sent two weeks before Embry filed her EEOC
charge, showed that Elkins had an intent to retaliate against Embry for engaging in
protected activity. See Earley v. Champion Intern. Corp., 907 F.2d 1077, 1081
(11th Cir. 1990) (holding that “[m]ere conclusory allegations and assertions will
not suffice” to establish pretext (citation omitted)). We have explained that,
although a comment unrelated to a challenged employment decision may
contribute to a circumstantial case for pretext, “it will usually not be sufficient
absent some additional evidence supporting a finding of pretext.” See Scott v.
Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1229 (11th. Cir. 2002) (citations
omitted). Thus, assuming that Embry established a prima facie case of retaliation
based on her suspension, Embry failed to show that a genuine issue of material fact
existed as to pretext.
Accordingly, we conclude that the district court did not err in granting
Callahan summary judgment on all of Embry’s claims. We, therefore, affirm.
AFFIRMED.
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