[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14962
March 16, 2006
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00270-CV-CG-M
LISA D. HAMMONS,
Plaintiff-Appellant,
versus
GEORGE C. WALLACE STATE COMMUNITY COLLEGE,
JAMES D. MITCHELL,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(March 16, 2006)
Before DUBINA, HULL and MARCUS, Circuit Judges.
PER CURIAM:
Lisa D. Hammons, a white female, appeals the district court’s grant of
summary judgment to her former employer, George C. Wallace State Community
College (“Wallace State”), and the college president, James M. Mitchell
(“Mitchell”), an African-American, in her action alleging race discrimination and
retaliation, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. §§ 2000e-2(a), 3(a).1 On appeal, Hammons argues: (1) she established a
prima facie case of race discrimination, based on disparate treatment, because she
identified two similarly situated employees, outside her protected class, who were
treated more favorably; and (2) she stated a prima facie case of retaliation based on
being terminated for filing a written complaint against Mitchell and showing that
Wallace State’s proffered nondiscriminatory, legitimate reasons were false and not
the true reason for her termination. After careful review, we affirm.
I.
We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light more favorable to the party opposing the motion. Patrick
v. Floyd Med. Ctr., 201 F.3d 1313, 1315 (11th Cir. 2000). Rule 56(c) states that
summary judgment is appropriate “if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, of any, show
that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P
56(c). To warrant the entry of summary judgment, the moving party must
1
Hammons does not appeal the district court’s entry of summary judgment, in favor of
the defendants, on her claims for breach of contract, sex discrimination, violation of due process,
and fraud. Accordingly, those claims are deemed abandoned. See United States v. Scott, 426 F.3d
1324, 1328 (11th Cir. 2005).
2
demonstrate that “there is no genuine issue as to any material fact.” HCA Health
Servs. of Ga., Inc. v. Employers Health Ins. Co., 240 F.3d 982, 991 (11th Cir.
2001). “A mere ‘scintilla’ of evidence supporting the opposing party’s position
will not suffice; there must be enough of a showing that the jury could reasonably
find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).
II.
The parties are familiar with the relevant facts and we only summarize them
here. Hammons served as the Dean of Students at Wallace State from January 2,
2001 through August 31, 2003. In her capacity as Dean of Students, she was
responsible for the general oversight of the Division of Student Services, which
included the Admissions Office, the Registrar’s Office, Student Support Services,
Talent Search, the Financial Aid Office, the Athletic Department, and ADA
compliance. Hammons directly supervised approximately ten staff members,
including Corey Bowie, the director of the Financial Aid Office. In the course of
her employment, numerous problems arose both in the Registrar’s Office, relating
to the organization of students’ registration, and in the Financial Aid Office,
including Hammons’s improper submission of the college’s bank account number
in connection with an electronic funds transfer, the tardy submission of students’
applications for Pell Grant funds, and the over-award of funds to work-study
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students. Hammons was informed on May 31, 2003 that her contract would not be
renewed for the 2003-2004 academic year and she was placed on academic leave
with pay until the expiration of her contract on August 31, 2003. She was replaced
by Dr. Gail May, a white female.
On April 26, 2004, Hammons filed a five-count complaint against Wallace
State, a publicly funded educational institution of the State of Alabama, and
Mitchell (collectively, “Defendants”). In relevant part, Hammons alleged that (1)
Wallace State violated Title VII by discriminating against her in the terms,
conditions, and privileges of her employment because of race; and (2) Defendants
violated Title VII by retaliating against her through harassment and termination
after she complained to the Chancellor of the Alabama Department of Post
Secondary Education (“Chancellor”). Defendants answered with numerous
denials, and defenses.
After discovery, Defendants moved for summary judgment pursuant to Fed.
R. Civ. P. 56. They argued that: (1) Hammons could not establish a prima facie
case of race discrimination because she did not identify a similarly situated
comparator and because she was replaced by a white female; (2) Hammons did not
assert a prima facie case of retaliation because she never communicated to
Mitchell, or anyone else, including in her letter to the Chancellor, that she opposed
4
any unlawful conduct, and she could not establish a causal link between her filing
of an EEOC charge and the alleged retaliation against her. Alternatively,
Defendants asserted that they had proffered legitimate, nondiscriminatory reasons
for not renewing Hammons’s contract and Hammons had not met her burden to
show that the proffered reasons were pretextual in nature.
The district court granted Defendants’ motion for summary judgment,
finding that Hammons had not demonstrated a prima facie case of racial
discrimination based on disparate treatment because: (1) she was not replaced by
someone outside her protected class -- Dr. May also was a white female; and (2)
neither of Hammons’s proposed comparators were similarly situated employees
outside her class that were treated more favorably. In connection with this
conclusion, the court found that proposed comparator Bowie, a black male, was not
similarly situated because he was Hammons’s subordinate and not an at-will
employee. The court further found that proposed comparator Bonita Allen, the
Dean of Business and Financing, a black female, was not similarly situated because
she was responsible for a different department in which only some of the problems
attributed to Hammons occurred, and like Bowie, she was not an at-will employee,
but was tenured. Alternatively, the district court found that even if Hammons had
established a prima facie case of racial discrimination, she was not able to show
5
that Wallace State’s non-discriminatory reason for its refusal to renew her
employment contract was merely pretext.
As for Hammons’s retaliation claim, the district court first determined that
her December 17, 2002 letter to the Chancellor, which broadly referred to
“harassment” and “disparate treatment,” was not statutorily protected expression
because it did not describe conduct that was alleged to be racially or sexually
motivated. The district court further found that Hammons did not establish a prima
facie case of retaliation because she had not shown that the adverse action -- on
May 31, 2003, when she was placed on administrative leave and informed her
contract would not be renewed -- was causally related to the December 17, 2002
letter. Finally, like the disparate-treatment claim, the court concluded that even if
Hammons established a prima facie case, she failed to show pretext. This appeal
followed.
III.
Title VII makes it unlawful for an employer to discharge any individual, or
otherwise to discriminate 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. See 42 U.S.C. § 2000e-2(a). Because
Hammons relies on circumstantial evidence to establish her disparate-treatment
6
claim, we test the sufficiency of that claim by applying the burden-shifting
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), and Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). See
Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc).
Under the McDonnell Douglas framework, a plaintiff first must show an
inference of discriminatory intent, and thus carries the initial burden of establishing
a prima facie case of discrimination. See McDonnell Douglas, 411 U.S. at 802.
The plaintiff’s successful assertion of a prima facie case “creates a rebuttable
presumption that the employer unlawfully discriminated against her.” E.E.O.C. v.
Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002) (citing U.S. Postal
Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 714 (1983)). If the plaintiff
successfully demonstrates a prima facie case, the burden then shifts to the
employer to produce evidence that its action was taken for a legitimate, non-
discriminatory reason. See Joe’s Stone Crabs, 296 F.3d at 1272. “Should the
employer meet its burden of production, the presumption of discrimination is
rebutted, and the inquiry ‘proceeds to a new level of specificity,’ in which the
plaintiff must show that the proffered reason really is a pretext for unlawful
discrimination.” Id. at 1272-73 (quoting Burdine, 450 U.S. at 255-56). “Although
the intermediate burdens of production shift back and forth, the ultimate burden of
7
persuading the trier of fact that the employer intentionally discriminated against the
employee remains at all times with the plaintiff.” Id. at 1273.
The district court found that Hammons did not satisfy her initial burden to
establish a prima facie case of discrimination. To do so, she was required to show:
(1) she was 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. See Maynard v. Bd. of
Regents of Div. of Univs. of Fla. Dept. of Educ. ex rel. Univ. of S. Fla., 342 F.3d
1281, 1289 (11th Cir. 2003). The instant appeal concerns only the fourth element
of the prima facie case since the parties do not dispute that Hammons satisfied the
other elements.
“In determining whether employees are similarly situated for purposes of
establishing a prima facie case, 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.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). To
show that employees are similarly situated, the plaintiff must establish that the
employees are “similarly situated in all relevant respects.” Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004). The comparator must be
8
“nearly identical” to the plaintiff to prevent courts from second-guessing a
reasonable decision by the employer. Id.
On this record, Hammons failed to establish the fourth prong of her prima
facie case. First, she was replaced by someone within her protected class. Dr.
May, a Caucasian female, replaced Hammons as interim Dean of Students during
the one-year period following her administrative leave and, after a year-long
search, Dr. May was selected as the permanent Dean of Students. Moreover, the
district court found that Hammons had not identified similarly situated
comparators. Dean Allen was not directly responsible for the Financial Aid Office,
where Hammons had oversight responsibilities and where the majority of the
incidents leading to Hammons’s termination took place. Notably, Dean Allen was
not an at-will employee like Hammons. And Bowie, the director of Financial Aid,
was Hammons’s subordinate whose only responsibility included the duties of the
Financial Aid Office. He too was not an at-will employee. Wallace State’s
reasons for placing Hammons on administrative leave with full pay through her
contract term and failure to renew her employment contract extended beyond
issues in the Financial Aid Office, and neither Allen nor Bowie were responsible
for, or in any way involved in, those other problems. Simply put, neither of these
proposed comparators was “similarly situated in all relevant respects” or “nearly
9
identical” to Hammons. See Wilson, 376 F.3d at 1091. Accordingly, the district
court did not err by finding Hammons failed to meet the fourth prong of her
prima facie disparate-treatment claim.2
IV.
We likewise affirm the district court’s entry of summary judgment on
Hammons’s retaliation claim. Title VII prohibits an employer from discriminating
against any of his employees because she has opposed any practice made an
unlawful employment practice. 42 U.S.C. § 2000e-3(a). “ T o e s t a b l i s h a p r i m a
facie case of retaliation, the plaintiff must show: (1) that [she] engaged in
statutorily protected expression; (2) that [she] suffered an adverse employment
action; and (3) that there is some causal relationship between the two events.”
2
We are not persuaded by Hammons’s additional argument that she established a prima
facie case through other circumstantial evidence by which a discriminatory animus could be
inferred. For this argument, Hammons relies on Schoenfeld v. Babbitt, 168 F.3d 1257, 1268 (11th
Cir. 1999), for the proposition that in a disparate-treatment case, a plaintiff satisfies her prima facie
case requirement with proof of actions taken by the employer from which a trier of fact could infer
discriminatory animus. Even assuming arguendo that Hammons established a prima facie case
through such evidence, summary judgment was still appropriate on her disparate-treatment claim
because she did not rebut Wallace State’s proffered nondiscriminatory, legitimate reason for its
decision to place her on administrative leave and not to renew her employment contract. And thus,
pursuant to the McDonnell Douglas formulation, Wallace State still would be entitled to summary
judgment. As the district court found, Wallace State rebutted any presumption of discrimination by
proffering legitimate, nondiscriminatory reasons for placing Hammons on administrative leave and
not renewing her contract and Hammons did not prove that the proffered reason was pretextual. On
this record, the district court did not err because Hammons failed to produce sufficient evidence to
allow a reasonable finder of fact to conclude that the employer’s articulated reasons were not
believable. See Jackson v. State of Ala. State Tenure Comm., 405 F.3d 1276, 1289 (11th Cir. 2005)
(quotations and citations omitted).
10
Holifield, 115 F.3d at 1566. We assume, without deciding, that Hammons’s
December 17, 2002 letter to the Chancellor was a statutorily protected activity for
purposes of the first element of a prima facie case and the second element is not
disputed.
“To establish a causal connection, a plaintiff must show that ‘the decision-
makers were aware of the protected conduct’ and ‘that the protected activity and
the adverse employment action were not wholly unrelated.’” Gupta v. Fla. Bd. of
Regents, 212 F.3d 571, 590 (11th Cir. 2000) (internal citations omitted). “[A]t a
minimum, [a plaintiff] must show that the adverse act followed the protected
conduct.” Griffin v. GTE Fla., Inc., 182 F.3d 1279, 1284 (11th Cir. 1999). In
other words, the plaintiff must show a temporal link between a protected activity
and an adverse employment action. See Sullivan v. Nat’l R.R. Passenger Corp.,
170 F.3d 1056, 1060-61 (11th Cir. 1999) (holding that no causal link existed
between protected activity in February 1994 and adverse employment actions in
late 1994 and early 1995); Griffin, 182 F.3d at 1281-82 (finding no causal link
when the plaintiff returned to work for 11 days before leaving again, and no
problems occurred during those 11 days); Sierminski v. Transouth Fin. Corp., 216
F.3d 945, 951 (11th Cir. 2000) (holding that a 7-month time period between the
protected activity and the adverse employment action is too indirect to satisfy the
11
causal connection requirement); Breach v. Ala. Power Co., 962 F. Supp. 1447,
1461 (S.D. Ala. 1997), aff’d 140 F.3d 1043 (11th Cir. 1998) (holding that more
than a year between the protected activity and the discharge is not close enough to
support the causal connection requirement).
Hammons wrote the letter of grievance to the Chancellor on December 17,
2002. At that time, Mitchell had filed written memoranda reprimanding Hammons
for her poor performance as early as August 2002. Moreover, five months passed
between the time Hammons submitted the letter and the adverse employment
action on May 31, 2003. The Supreme Court has recognized, assuming that
temporal proximity suffices to show causation, such events must come closer to
each other in time than that to be causally linked. Clark Cty. Sch. Dist. v. Breeden,
532 U.S. 268, 273 (2001) (citing with approval circuit court cases invalidating
temporal proximities of three and four months).3 In short, Hammons has not
shown that adverse employment action was causally related to her letter to the
Chancellor, and, therefore, she has failed to establish a prima facie case of
retaliation.4
3
We are unpersuaded by Hammons’s additional argument that Mitchell’s “onslaught”
was prompted by her August 2002 letter of reprimand to Griffin, a subordinate, black employee,
because that position is inconsistent with her argument in the district court that she was terminated
in retaliation for the December 2002 grievance letter to the Chancellor.
4
Even if Hammons established a prima facie case of retaliation, the district court found
that she failed to show that Wallace State’s proffered nondiscriminatory, legitimate reasons for its
12
For the foregoing reasons, we affirm the entry of summary judgment in
favor of Defendants.
AFFIRMED.
decision to place her on administrative leave and not to renew her employment contract were
pretextual. For example, there was extensive evidence that Hammons performed poorly as Dean
of Students at Wallace State, as early as August 2002. Hammons was criticized for problems in
completing her direct responsibilities, including her coordination of registration and circumvention
of school policy for electronic funds transfers. Hammons also was criticized in her supervisory
capacity, including her oversight of the Financial Aid Office and her interaction with others. Simply
put, Hammons has not met her burden under McDonnell Douglas to point to “weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions” in the proffered explanation.
Jackson v. State of Alabama State Tenure Comm., 405 F.3d 1276, 1289 (11th Cir. 2005) (quotations
and citations omitted). Accordingly, Defendants were entitled to summary judgment on this
additional basis.
13