Phyllis Moreland Richardson v. City of Snellville, Georgia

USCA11 Case: 19-14228 Date Filed: 09/29/2021 Page: 1 of 33

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 19-14228
_________________________

D.C. Docket No. 1:17-cv-02887-ELR

PHYLLIS MORELAND-RICHARDSON,

Plaintiff-Appellant,

versus

CITY OF SNELLVILLE, GEORGIA,
Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
________________________

(September 29, 2021)

Before ROSENBAUM, LUCK, and JULIE CARNES, Circuit Judges.

JULIE CARNES, Circuit Judge:
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Plaintiff-Appellant Phyllis Moreland-Richardson appeals the district court’s

order granting summary judgment to Defendant-Appellee the City of Snellville on

the Title VII race discrimination and retaliation claims Plaintiff asserted against the

City after she was terminated from her position as city clerk in November 2015.

After a careful review of the record, and with the benefit of oral argument, we

affirm.

BACKGROUND

In January 2014, then-Mayor Kelly Kautz unilaterally appointed Plaintiff, a

black female, to be the city clerk for the City of Snellville. She did so without the

knowledge or consent of Snellville’s city council and despite the fact that

Plaintiff’s appointment required the removal of Melissa Arnold, a white female

who had served as Snellville’s city clerk since 2009 and who had been a City

employee for twenty-three years at the time of Plaintiff’s appointment.1

The city council disagreed with Kautz’s decision to replace Arnold with

Plaintiff, and it questioned Kautz’s authority to unilaterally appoint a new city

clerk without its consent or approval when the position was not vacant.

Accordingly, the council passed a resolution reinstating Arnold as city clerk

1
Plaintiff does not dispute that Kautz unilaterally appointed her to the city clerk position, but
she argues that the Snellville Charter authorized the unilateral appointment.
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effective January 13, 2014. Meanwhile, Kautz sued the city council to determine

her authority as mayor to appoint the city clerk.

On June 20, 2014, Kautz reached a settlement in her litigation with the city

council, in which the council agreed that Kautz had the authority to unilaterally

replace Arnold with Plaintiff in the city clerk position. Pursuant to the settlement,

Arnold resigned. Plaintiff resumed her duties as city clerk after a city council

meeting that was specially called on June 26, 2014 for the purpose of reinstating

Plaintiff.

The city council passed two resolutions during the June 26, 2014 meeting.

In the first resolution, the city council adopted a job description for the city clerk

position that formally removed from the position certain administrative functions

Arnold had assumed during her tenure with the City that were beyond her duties as

city clerk, including acting as the City’s bid administrator and purchasing agent

and managing the City’s IT personnel.2 The second resolution set Plaintiff’s

starting salary as city clerk at $46,000 a year, which was $6,500 lower than

Arnold’s salary of $52,500 when she was appointed city clerk in 2009.

2
Plaintiff stated in her summary judgment response below that Arnold served only as a
“backup” in these roles for individuals who were absent, but that does not conflict with—on the
contrary, it supports—the City’s argument that Arnold had assumed extra-clerk duties during her
tenure. Plaintiff stated further that the city council’s resolution “unilaterally stripped” her of
duties that historically had been performed by the city clerk, but the evidence she cited did not
support that assertion, and she did not dispute that the bid administrator, purchasing agent, IT
manager, and similar functions were not traditional city clerk duties.

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In November 2015, city council member Tom Witts defeated Kautz in the

Snellville mayoral race. When Witts took office on November 9, 2015, he called a

city council meeting during which the council voted to approve a resolution

appointing a new city clerk and city attorney. Pursuant to the resolution, Plaintiff

was removed from the city clerk position and replaced with interim city clerk

Ariann Stone, a white female.3 Plaintiff’s removal occurred approximately two

months before her term was set to expire on January 10, 2016.

Plaintiff claims she experienced racial discrimination and harassment

throughout her tenure as city clerk, up to and including her termination in

November 2015. In support of her claim, Plaintiff cites the discrepancy between

her own and Arnold’s starting salary as city clerk, the city council’s removal of

certain duties Arnold had performed while she worked for the City upon Plaintiff’s

appointment to the city clerk position, and various workplace affronts, including

being accused of misconduct and incompetence and having her vacation leave

questioned, among other things.

Plaintiff complained about some of these issues in an interview she gave to a

local television station in July 2014, about three weeks after her reinstatement as

city clerk. Although Plaintiff never complained directly to the City, the City hired

outside investigator David Archer to investigate Plaintiff’s allegations. The

3
The city council subsequently voted to reinstate Melissa Arnold as city clerk.
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investigation was hampered, however, by Plaintiff’s refusal to be interviewed or

otherwise cooperate. Nevertheless, after interviewing city council members and

other city employees, reviewing relevant newspaper articles and city ordinances,

and viewing footage of city council meetings, Archer determined there was no

evidence to support Plaintiff’s allegations. He concluded, instead, that Plaintiff

had been “thrust into an ongoing power struggle between [Mayor Kautz] and City

Councilmembers that had no nothing to do with race” and that Plaintiff’s

predecessor Arnold “had earned the friendship, respect, and loyalty of her co-

workers and all of the members of the City Council during her long tenure with the

City, and that they were upset by what they perceived as Kautz’s unfair treatment”

of her.

Plaintiff did not challenge the results of Archer’s investigation, and she did

not avail herself of the City’s internal policy and procedures for reporting and

investigating discrimination and harassment claims. Nevertheless, Plaintiff claims

she continued to experience racially discriminatory and hostile treatment at work.

In March 2015, Plaintiff filed an EEOC charge. In the charge, Plaintiff alleged that

the city council had resisted and opposed her appointment from the beginning, had

paid her less than her white predecessor and reduced her job duties when it was

forced to acquiesce in her appointment, and had created a racially hostile work

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environment after Plaintiff assumed the city clerk position by treating her in an

“intimidating, hostile[,] and offensive” manner.

Plaintiff remained in the city clerk position for approximately eight months

after she filed her March 2015 charge, at which time she was terminated pursuant

to the city council’s vote to appoint a new city clerk and city attorney after council

member Witts defeated Kautz in the Snellville mayoral race. Following her

termination, Plaintiff filed a second EEOC charge in May 2016, alleging that she

was terminated in retaliation for her March 2015 EEOC charge.

Plaintiff subsequently filed this lawsuit asserting race discrimination, racial

harassment, and retaliation claims under Title VII.4 After discovery, the City

moved for summary judgment as to Plaintiff’s claims. The City’s motion was

referred to a Magistrate Judge, who issued a Report and Recommendation

(“R&R”) recommending that the motion be granted.

As to Plaintiff’s race discrimination claims, the Magistrate Judge concluded

that Plaintiff had not shown she was treated differently than a similarly situated

white employee with respect to her pay or job duties, and that she had failed to

respond to the City’s argument that she was not qualified for the city clerk position

4
Plaintiff also asserted discrimination and retaliation claims under 42 U.S.C. § 1981, but the
Magistrate Judge determined that Plaintiff had abandoned those claims. Plaintiff did not object
to that determination below, and she does not challenge it on appeal. Accordingly, we do not
consider Plaintiff’s § 1981 claims.
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at the time of her termination, as required to establish a prima facie case of

discrimination. Alternatively, the Magistrate Judge determined that Plaintiff had

presented no evidence of pretext in response to the City’s legitimate,

nondiscriminatory explanation for its decisions with respect to Plaintiff’s pay, job

duties, and termination. With respect to her racial harassment allegations, the

Magistrate Judge concluded that Plaintiff had not shown severe or pervasive

harassment, as required to prevail on a hostile work environment claim, and that

she had failed to refute the City’s argument that it was not liable for Plaintiff’s

allegedly hostile work environment pursuant to the affirmative defense set out in

Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries,

Inc. v. Ellerth, 524 U.S. 742 (1998). Finally, regarding Plaintiff’s retaliation claim,

the Magistrate Judge found no evidence that Plaintiff’s termination (the alleged

retaliatory action) was in any way related to her March 2015 EEOC charge (the

alleged protected conduct).

Plaintiff objected to some, but not all, of the Magistrate Judge’s

recommendations in the R&R. Specifically, Plaintiff objected to the Magistrate

Judge’s conclusions that she had not shown: (1) that she was treated differently

than a similarly situated white employee, (2) that the City’s asserted legitimate,

nondiscriminatory reasons for its adverse actions against Plaintiff were a pretext

for race discrimination, and (3) that the hostility Plaintiff experienced during her

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tenure as city clerk was race-related and sufficiently severe or pervasive to be

actionable. Plaintiff also objected to the Magistrate Judge’s determination that her

termination was not causally related to her March 2015 EEOC charge. Plaintiff

did not object to the Magistrate Judge’s conclusion that she was not qualified for

the city clerk position at the time of her termination or his determination that there

was no basis for imposing liability on the City for Plaintiff’s allegedly hostile work

environment under Faragher and Ellerth.

The district court denied Plaintiff’s objections, accepted the Magistrate

Judge’s recommendations, and granted summary judgment to the City on all the

claims asserted by Plaintiff. This appeal followed.

DISCUSSION

I. Standard of Review

We review the district court’s summary judgment ruling in favor of the City

de novo, construing the evidence in the light most favorable to Plaintiff and

drawing all reasonable inferences in her favor. See Gogel v. Kia Motors Mfg. of

Ga., Inc., 967 F.3d 1121, 1134 (11th Cir. 2020) (en banc). Viewing the evidence

in that manner, summary judgment is appropriate if the City shows that there are

no genuine issues of material fact and that the City “is entitled to judgment as a

matter of law.” Id. (quoting Fed. R. Civ. P. 56(a) (quotation marks omitted)).

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As discussed above, Plaintiff objected to some of the Magistrate Judge’s

conclusions, but not all of them. Eleventh Circuit Rule 3-1 states that:

A party failing to object to a magistrate judge’s findings or
recommendations contained in a report and recommendation in
accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the
right to challenge on appeal the district court’s order based on
unobjected-to factual and legal conclusions if the party was informed
of the time period for objecting and the consequences on appeal for
failing to object. In the absence of a proper objection, however, the
court may review on appeal for plain error if necessary in the interests
of justice.

11th Cir. R. 3-1.

The notice Plaintiff received with the R&R in this case “informed [her] of

the time period for objecting and the consequences on appeal for failing to object.”

See id. Specifically, the notice advised Plaintiff of the fourteen-day period for

filing objections and explained, “If no objections are filed, the Report and

Recommendation may be adopted as the opinion and order of the District Court,

and on appeal, the Court of Appeals will deem waived any challenge to factual and

legal findings to which there was no objection, subject to interests-of-justice plain

error review. 11th Cir. R. 3-1.” (emphasis added). Plaintiff has thus waived the

right to challenge on appeal any rulings by the district court that are based on the

Magistrate Judge’s unobjected-to conclusions. Compare Harrigan v. Metro Dade

Police Dep’t Station No. 4, 977 F.3d 1185, 1191 (11th Cir. 2020) (holding that

Rule 3-1 was not satisfied by a notice informing the plaintiff that she would waive

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any right to appeal unobjected-to factual findings but that did not mention

unobjected-to legal conclusions).

II. Plaintiff’s Title VII Discrimination Claims

Title VII of the Civil Rights Act of 1964 forbids covered employers from

“discriminat[ing] against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s race.” 42

U.S.C. § 2000e-2(a)(1). Plaintiff claims the City violated Title VII in two ways.

First, Plaintiff argues that the City discriminated against her by paying her less

than a comparable white employee, stripping her of the discretionary functions the

white employee performed as city clerk, and ultimately terminating her on account

of her race. Second, Plaintiff argues that the City subjected her to a racially hostile

environment that negatively impacted the conditions of her employment as city

clerk, as evidenced by various affronts Plaintiff allegedly experienced in the

workplace. For the reasons discussed below, we affirm the district court’s order

granting summary judgment to the City as to both of Plaintiff’s Title VII

discrimination claims.

A. Race Discrimination as to Plaintiff’s Pay, Job Duties, and
Termination

Plaintiff conceded below that she has no direct evidence she was terminated,

paid less, or assigned fewer job duties on account of her race. The Magistrate

Judge thus correctly applied the McDonnell Douglas burden-shifting framework to
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Plaintiff’s race discrimination claim based on her termination and alleged pay and

job duty disparities. See Lewis v. City of Union City, 918 F.3d 1213, 1220 (11th

Cir. 2019) (“In order to survive summary judgment, a plaintiff alleging intentional

discrimination must present sufficient facts to permit a jury to rule in her favor.

One way that she can do so is by satisfying the burden-shifting framework set out

in McDonnell Douglas.”).

Pursuant to the McDonnell Douglas framework, Plaintiff has the initial

burden to establish a prima facie case of discrimination by showing that (1) she

belongs to a protected class, (2) she suffered an adverse employment action with

respect to her position with the City, (3) she was qualified for her position at the

time of the adverse action, and (4) an employee outside of Plaintiff’s protected

class was treated more favorably than Plaintiff. See id. at 1220–21. The burden

then shifts to the City to articulate a legitimate, nondiscriminatory reason for its

challenged employment decisions. See id. at 1221. Assuming the City satisfies

that requirement, the burden shifts back to Plaintiff to show that the City’s

proffered reason was not the real basis for the decision, but a pretext for

discrimination. See id. As discussed below, Plaintiff’s discrimination claims

based on both her termination and the pay and job duty disparities she alleges in

her complaint fail at the prima facie stage of the analysis.

1. Plaintiff failed to establish below, and she has waived on appeal, an
essential element of her prima facie case of discrimination based on
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her termination—namely, that she was qualified for the city clerk
position at the time of her termination.

It is undisputed that Plaintiff has satisfied the first two elements of a prima

facie case of discrimination based on her termination: Plaintiff is a member of a

protected class and she suffered an adverse employment action when she was

terminated from the city clerk position in November 2015. We likewise assume

that Plaintiff has established the last element of her prima facie case as to her

termination by showing that she was replaced in the city clerk position with a

white interim city clerk, Ariann Stone, and ultimately with a white permanent city

clerk, Melissa Arnold. See Maynard v. Bd. of Regents of the Div. of Univ. of the

Fla. Dep’t of Educ., 342 F.3d 1281, 1289 (11th Cir. 2003) (noting that a plaintiff

can make out a prima facie case of discrimination with evidence that he was

“replaced by a person outside his protected class”). Nevertheless, Plaintiff’s

termination claim fails at the prima facie stage of the analysis because Plaintiff did

not respond below to the City’s argument that she was not qualified for the city

clerk position at the time of her termination, and she did not object to the

Magistrate Judge’s determination that she had thus failed to establish this essential

element of a prima facie case of discrimination based on her termination.

In its summary judgment briefing below, the City specifically argued that

Plaintiff was not qualified for the city clerk position when she was terminated in

November 2015 because she had failed to meet the performance expectations of
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the position over the course of her tenure as city clerk, and because Plaintiff’s

demonstrated allegiance to Mayor Kautz resulted in a lack of trust by the city

council in her ability to loyally serve the incoming Witts administration. Instead of

responding to the City’s arguments as to the qualification element of her prima

facie case, Plaintiff inaccurately asserted in her own summary judgment briefing

that it was undisputed that she was qualified for the city clerk position. Because

Plaintiff failed to respond to the City’s argument that she was unqualified for the

city clerk position at the time of her termination, the Magistrate Judge concluded

that Plaintiff could not establish this essential element of her prima facie case of

discrimination arising from her termination.

As noted above, Plaintiff subsequently failed to object to the Magistrate

Judge’s conclusion that she failed to show she was qualified for the city clerk

position when she was terminated and, consequently, that she could not make out a

prima facie case of discrimination based on her termination.5 Again, Plaintiff was

informed of the fourteen-day objection period when the Magistrate Judge’s R&R

issued, and she was advised that the consequence for not objecting included a

5
Plaintiff vaguely stated in her objections that the City’s argument that she “was not qualified to
serve as city clerk after the 2015 election because [her] allegiance to the former mayor resulted
in a lack of trust to maintain the confidence of matters pertaining to new elected Mayor and City
Council [sic], is nothing more than speculation and carry [sic] no merit.” Assuming that
statement qualifies as a valid objection despite the lack of any evidence or argument to support
it, Plaintiff failed entirely to object to the Magistrate Judge’s alternative finding that she was not
qualified for the city clerk position due to performance issues.
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waiver of her “right to challenge on appeal the district court’s order” granting

summary judgment based on any of the Magistrate Judge’s “unobjected-to factual

and legal conclusions.” See 11th Cir. R. 3-1. Thus, after essentially conceding

below that she was not qualified for the city clerk position at the time of her

termination, Plaintiff thereafter waived the right to raise the qualification issue on

appeal by failing to object to the Magistrate Judge’s R&R on this point.

Rule 3-1 states that “[i]n the absence of a proper objection, . . . the court may

review on appeal for plain error if necessary in the interests of justice.” Id. But the

plain error doctrine “rarely applies in civil cases.” Ledford v. Peeples, 657 F.3d

1222, 1258 (11th Cir. 2011). See also Burch v. P.J. Cheese, Inc., 861 F.3d 1338,

1352 (11th Cir. 2017) (“In an exceptional civil case, we might entertain [an]

objection [that was not raised below] by noticing plain error.” (quotation marks

omitted)). We find no plain error in the Magistrate Judge’s determination that

Plaintiff failed to show she was qualified for the city clerk position at the time of

her termination. The City argued in its summary judgment briefing below that

Plaintiff was not qualified for the city clerk position at the time of her termination

due to Plaintiff’s performance issues throughout her tenure as city clerk and the

city council’s belief that Plaintiff could not effectively serve the incoming Witts

administration given her demonstrated loyalty to Kautz. The City cited evidence in

support of both prongs of its argument, which Plaintiff failed to rebut. Indeed,

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Plaintiff failed to respond in any way to the City’s argument that she was not

qualified for the city clerk position other than to state, incorrectly, that the issue

was undisputed. Plaintiff having essentially abandoned this essential element of

her prima facie termination claim below and waived the right to raise the issue on

appeal, her termination claim fails at the first stage of the McDonnell Douglas

analysis.

2. Plaintiff cannot establish a prima facie case of discrimination based on
pay and job duty disparities between herself and a similarly situated
employee outside her protected class.

Applying McDonnell Douglas to Plaintiff’s pay and job duty claim, we

again assume Plaintiff is a member of a protected class and that the City’s decision

to pay her a lower starting salary and assign her fewer duties than her white

predecessor, Melissa Arnold, constitutes adverse action. The City has not argued

that Plaintiff was unqualified for the city clerk position when the city council

passed the June 26, 2014 resolution setting her salary and defining her job duties,

so we likewise assume Plaintiff has satisfied that element of her prima facie case

for purposes of her pay and job duty claim. But to move beyond the first stage of

McDonnell Douglas on her pay and job duty claim, Plaintiff must show that she

was treated less favorably than a “similarly situated” employee outside her

protected class with respect to her pay and job duties. See Lewis, 918 F.3d at 1221,

1224. In other words, Plaintiff must produce valid comparator evidence showing

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that she was treated less favorably than a similarly situated white employee with

respect to her pay and job duties as city clerk. See id. at 1224 (“In order to defeat

summary judgment, a Title VII plaintiff proceeding under McDonnell Douglas

must prove, as a preliminary matter, not only that she is a member of a protected

class, that she suffered an adverse employment action, and that she was qualified

for the job in question, but also that she was treated less favorably than similarly

situated individuals outside her class.” (quotation marks omitted)). She cannot.

This Court clarified in Lewis that an employee must be similarly situated to

the plaintiff “in all material respects” to serve as a comparator for purposes of the

McDonnell Douglas analysis. Id. at 1224. As the Court explained in Lewis, that

formulation is derived from the ordinary meaning of the term “discrimination”:

that is, “the act of treating like cases differently” based on a protected

characteristic. Id. at 1225 (“[I]n adopting a comparator standard, we must not stray

too far from paradigmatic notions of discrimination, lest we sanction a regime in

which treating different things differently violates Title VII, which clearly it does

not.” (quotation marks omitted) (emphasis in original)). In addition, it serves the

two main functions of the prima facie prong of the McDonnell Douglas analysis:

(1) eliminating the “most common nondiscriminatory reasons for an employer’s

conduct” and (2) providing “a sound basis for an inference of unlawful

discrimination.” Id. (quotation marks omitted).

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With the above considerations in mind, the Court in Lewis identified “the

sorts of similarities” that qualify an employee as a comparator for purposes of the

McDonnell Douglas analysis. See Lewis, 918 F.3d at 1227–28. The Court

explained, for example, that a comparator generally will have (1) engaged in the

same conduct or misconduct, (2) been subject to the same employment policy or

rule, (3) worked under the same supervisor, and (4) shared the same employment

or disciplinary history as the plaintiff. See id. However, the Court emphasized that

these factors do not necessarily apply in every case, and that they should not be

applied in an overly formalistic way. See id. at 1228. Rather, they should be

considered with a view to determining whether the material “likenesses” between

the plaintiff and the proffered comparator in a particular case “eliminat[e] the most

common nondiscriminatory reasons” for an employer’s differential treatment of the

two employees and justify “an inference of unlawful discrimination” by the

employer. See id. (citation omitted).

Plaintiff argues that her white predecessor, Melissa Arnold, can serve as a

valid comparator with respect to her discrimination claim related to her pay and job

duties. It is undisputed that Arnold’s salary when she was appointed city clerk in

2009 was $6,500 higher than Plaintiff’s starting salary upon her appointment to the

same position in 2014, and that some of the functions Arnold was performing

during her tenure as city clerk—for example, acting as the City’s purchasing agent

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and bid administrator and managing the City’s IT personnel—were formally

removed from the city clerk position when Arnold vacated the position to make

way for Plaintiff’s reinstatement in June 2014. Arguably then, the City treated

Arnold more favorably than it treated Plaintiff by paying her a higher starting

salary and entrusting her with additional job duties.

However, it is also undisputed that Arnold had worked for the City for

eighteen years, over half of which she spent working directly in the city clerk’s

office as an assistant or deputy city clerk, when she was appointed to the city clerk

position in 2009, whereas Plaintiff had no employment history with the City and

she lacked Arnold’s direct experience working in a city clerk’s office at the time of

her own appointment in 2014. 6 Further, Plaintiff has not refuted the City’s

evidence that the functions the city council removed from the city clerk position

upon Plaintiff’s appointment in 2014 were outside of Arnold’s responsibilities as

city clerk, and that Arnold had assumed those functions in accordance with the

multi-faceted role she played during her long tenure with the City. Given the

undisputed differences between Arnold and Plaintiff’s employment history with

6
Plaintiff stated in her summary judgment response that she “had work experience as a Deputy
Clerk for Miami-Dade County.” Apparently, Plaintiff is referring to a former position she held
with the Miami-Dade County Board of Commissioners, in which she “was responsible for
keeping minutes.” Minute keeping remained a responsibility of Plaintiff’s after she was
appointed to the city clerk position in Snellville, but there is no evidence Plaintiff performed a
role with the Miami-Dade County Board of Commissioners that was similar to the role Arnold
had assumed during her long tenure with the City.
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the City, there is no reasonable basis upon which to conclude that Arnold was

similarly situated to Plaintiff in all material respects relevant to her pay or job

duties as city clerk. See Lewis, 918 F.3d at 1228 (citing authority for the principle

that “differences in experience . . . can disqualify a plaintiff’s proffered

comparators” (quotation marks omitted)).

Regarding Plaintiff’s pay claim specifically, Plaintiff complains that her

salary when she was appointed city clerk was $46,000, which was $6,500 lower

than Arnold’s salary of $52,500. But Plaintiff acknowledges that the City

determined her salary by taking an average of the starting salary of city clerks in

similar, neighboring communities, in a process that was race-neutral on its face. It

is not surprising that the figure derived from that process would differ from

Arnold’s salary upon being appointed to the city clerk position, which would not

have required a salary survey because Arnold was already on the City’s payroll—

and had been on the City’s payroll for eighteen years—at the time of her

appointment in 2009. And it is only natural that Arnold, an eighteen-year City

employee with a proven work history and nine years of directly relevant

experience in the city clerk’s office, would garner a higher salary than a new hire

who did not have the same experience with the City or in a city clerk’s office.

Indeed, Plaintiff does not dispute the City’s assertion that Arnold’s higher salary

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“took into consideration her years of service, experience and performance, and the

scope of her job duties and responsibilities.”

As to Plaintiff’s job duties claim, Plaintiff complains that when she was

appointed city clerk in 2014, the City redefined the position to remove various

functions Arnold had performed when she was city clerk, such as managing the

City’s IT department and acting as the City’s purchasing agent and bid

administrator. But again, Plaintiff failed to rebut the City’s evidence showing that

those functions were outside Arnold’s responsibilities as city clerk, and that they

were performed by Arnold in addition to her city clerk duties. Further, it is

undisputed that during Arnold’s eighteen years of employment with the City that

preceded her appointment as city clerk, Arnold proved herself to be a trusted and

reliable—and according to even Kautz a “dedicated”—employee who wore many

hats for the City and who had extensive institutional knowledge. Thus, at the time

of her appointment to the city clerk position in 2014, Plaintiff was not similarly

situated to Arnold with respect to her proven ability to competently perform the

extra-clerk functions Arnold had assumed over the course of her eighteen years

working for the City at the time of Arnold’s appointment to the city clerk position

in 2009 and her twenty-three years working for the City when she vacated the

position to make way for Plaintiff’s appointment in 2014.

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Plaintiff claims in her appellate briefing that she had thirty-five years of

experience working in government before her appointment to the city clerk

position in 2014, including experience working as a deputy clerk for the Miami-

Dade County Board of Commissioners, where she was responsible for keeping

minutes. But Plaintiff does not argue that her experience with the Miami-Dade

County Board of Commissioners involved any of the administrative and

supervisory duties the city council formally removed from the city clerk position

upon Plaintiff’s appointment in 2014, nor present any evidence showing that the

Miami-Dade County position she held is comparable to a city clerk or a deputy city

clerk position.

In short, applying the analysis required by Lewis to the evidentiary record in

this case, Arnold is not a valid comparator against which to measure Plaintiff’s

alleged discriminatory treatment with respect to her pay or job duties as city clerk.

Once again, the standard adopted in Lewis is intended to “eliminat[e] the most

common nondiscriminatory reasons” an employer would have for treating a

comparator more favorably than the plaintiff, thus justifying “an inference of

intentional discrimination.” See Lewis, 918 F.3d at 1228 (citation omitted). No

such inference is warranted here, where the City’s decisions as to Plaintiff’s

starting salary and job duties relative to Arnold are explained by one of the most

common nondiscriminatory reasons there is: a vast disparity between Arnold and

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Plaintiff’s experience and work history with the City. See id. (noting that a

similarly-situated comparator will ordinarily share the plaintiff's employment

history, such that they “cannot reasonably be distinguished”) (quoting Young v.

United Parcel Serv., Inc., 575 U.S. 206 (2015)); see also Crawford v. Carroll, 529

F.3d 961, 975 (11th Cir. 2008) (holding that the plaintiff’s co-worker, who had

been employed by the defendant for several years longer than the plaintiff and had

“specialized and highly valued expertise” related to the position in issue was not a

proper comparator). Because Arnold does not qualify as a comparator, and

because Plaintiff does not present evidence showing that any other employee was

treated more favorably than she was with respect to pay or job duties, her pay and

job duty disparity claim fails at the prima facie stage of the McDonnell Douglas

analysis.

3. Plaintiff cannot survive summary judgment on the “convincing
mosaic” alternative to McDonnell Douglas that is available in certain
cases where comparator evidence is lacking.

We recognize that a plaintiff’s discrimination claim can survive summary

judgment, notwithstanding her failure to establish a prima facie case of

discrimination under McDonnell Douglas, if she presents a “convincing mosaic of

circumstantial evidence” that creates a triable issue about the employer’s

discriminatory intent. See Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328

(11th Cir. 2011) (noting that a “convincing mosaic of circumstantial evidence”

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may “allow a jury to infer intentional discrimination”). For example, in the

absence of valid comparator evidence, a plaintiff may present evidence such as

“suspicious timing, ambiguous statements . . . , and other bits and pieces from

which an inference of discriminatory intent” with respect to a challenged

employment decision might be drawn. See Lewis, 934 F.3d at 1185 (quotation

marks omitted). Plaintiff expressly invoked McDonnell Douglas in her summary

judgment briefing below, and she did not present any alternative method of

demonstrating an inference of discrimination on the part of the City. But in any

event, Plaintiff has failed to produce other evidence from which a jury could

reasonably infer that the City discriminated against Plaintiff, on the basis of her

race, with respect to her salary, assigned job duties, or termination from the city

clerk position.

As discussed above, it is undisputed that the City determined Plaintiff’s

starting salary by conducting a salary survey of city clerks in comparable,

neighboring communities, and taking an average of those salaries. Nothing about

that process indicates a racial motivation, and Plaintiff’s only complaint about her

salary is that it was $6,500 less than her predecessor Arnold’s salary. But again,

Plaintiff was a new hire when she was appointed city clerk in 2014 whereas Arnold

was an eighteen-year employee of the City at the time of her appointment in 2009.

Further, Plaintiff failed to refute the City’s evidence that the functions it removed

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from the city clerk position upon Plaintiff’s appointment were extra-clerk functions

Arnold had assumed during her long tenure as a City employee who had extensive

institutional knowledge and who had assumed many functions in her role with the

City, several of which were outside her duties as city clerk. Finally, Plaintiff failed

to object to or otherwise challenge the Magistrate Judge’s determination that the

City terminated Plaintiff because she failed to meet performance expectations

during her tenure and because the city council doubted her ability to effectively

serve the incoming Witts administration, given her demonstrated loyalty to Kautz.

B. Hostile Work Environment

To prevail on a hostile work environment claim, a plaintiff must show that

she was subjected to “severe or pervasive” harassment that was “motivated by” a

protected characteristic under Title VII, in this case Plaintiff’s race. See Tonkyro v.

Sec’y, Dep’t of Veterans Affairs, 995 F.3d 828, 836–37 (11th Cir. 2021) (quotation

marks omitted). Harassment is sufficiently severe or pervasive to be actionable

when it results in a work environment that an employee “subjectively perceive[s]”

as hostile and abusive, and “that a reasonable person would find hostile or abusive”

based on its frequency, severity, physically threatening nature, and interference

with an employee’s job performance. See id. (citation and internal quotation marks

omitted); see also Fernandez v. Trees, Inc., 961 F.3d 1148, 1152 (11th Cir. 2020)

(“A hostile work environment claim under Title VII requires proof that the

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workplace is permeated with discriminatory intimidation, ridicule, and insult, that

is sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.”) (citation and internal

quotation marks omitted). The severe or pervasive standard is intended to be

“sufficiently demanding to ensure that Title VII does not become a general civility

code.” Tonkyro, 995 F.3d at 837 (citation and internal quotation marks omitted).

Assuming an employee meets the above requirements and otherwise

establishes the essential elements of a hostile work environment claim, the

employer is entitled to assert the affirmative defense to liability set out in Faragher

v. City of Boca Raton, 524 U.S. 775, 807 (1998) and Burlington Industries, Inc. v.

Ellerth, 524 U.S. 742, 765 (1998) (the “Faragher/Ellerth defense”). See Frederick

v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1311 (11th Cir. 2001) (applying

Faragher and Ellerth). Under Faragher/Ellerth, when a supervisor’s harassment

results in a tangible adverse employment action, the employer “automatically [is]

vicariously liable” for the harassment. See id. On the other hand, when the

harassment does not culminate in a tangible employment action, the “employer

may raise an affirmative defense to liability.” Ellerth, 524 U.S. at 765. The

defense has two necessary elements: (1) that “the employer exercised reasonable

care to prevent” and promptly correct any harassing behavior, and (2) that “the

plaintiff employee unreasonably failed to take advantage of any preventive or

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corrective opportunities provided by the employer or to avoid harm otherwise.” Id.

“Both elements must be satisfied for the defendant-employer to avoid liability, and

the defendant bears the burden of proof” on each. Frederick, 246 F.3d at 1313.

The Magistrate Judge concluded that the City was entitled to summary

judgment on Plaintiff’s hostile work environment claim for two reasons. First, he

determined that Plaintiff had failed to present evidence that she was subjected to

severe or pervasive harassment in the workplace that was motivated by her race.

As an alternative ground, he determined that the City had established both

elements of the Faragher/Ellerth defense with evidence that it maintained an anti-

harassment policy for preventing and correcting unlawful harassment, and that

Plaintiff was aware of the policy but failed to avail herself of it.

Because we conclude that the Magistrate Judge correctly determined that

Plaintiff waived her right to argue that the City is liable under the Faragher/Ellerth

defense, we need not consider whether Plaintiff was subjected to severe or

pervasive harassment in the workplace that was motivated by her race. The City

specifically asserted the Faragher/Ellerth defense in its summary judgment

briefing below, arguing that it was not liable for Plaintiff’s alleged harassment

because it maintained an anti-harassment policy and procedure for reporting and

resolving racial harassment claims, and that Plaintiff was made aware of the policy

but failed to avail herself of it. Plaintiff essentially conceded the issue by failing to

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respond to the City’s evidence. For example, Plaintiff did not present any evidence

that might have raised an issue of fact as to whether the City effectively

disseminated or rigorously enforced its policy. Compare Frederick, 246 F.3d at

1311. Instead, Plaintiff argued that that the City was strictly liable for the

harassment she alleged because it resulted in a tangible adverse employment

action. The Magistrate Judge rejected Plaintiff’s strict liability argument and

determined that the City had established both elements of the Faragher/Ellerth

defense by presenting undisputed evidence that it maintained a non-harassment

policy that provided a process for racial harassment complaints to be reported to

human resources and investigated, which Plaintiff acknowledged she received and

understood but never used.

As noted, Plaintiff did not object to the Magistrate Judge’s determination

that the City had established the essential elements of the Faragher/Ellerth defense

and was thus entitled to summary judgment on her hostile work environment

claim. Pursuant to 11th Circuit Rule 3-1, Plaintiff has therefore waived any right

to argue on appeal that the City is not entitled to the defense. And again, we find

no plain error here. Plaintiff failed to rebut the City’s evidence that it maintained

an anti-harassment policy, and that Plaintiff knew about the policy but failed to

utilize it. Plaintiff’s only response to the City’s Farager/Ellerth argument was that

the incidents she cited in support of her hostile work environment claim somehow

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constituted tangible adverse action. It was not plain error for the Magistrate Judge

to reject that argument. See id. at 1312 (“[W]e treat [the plaintiff’s] ‘quid pro quo’

claim as an adverse ‘tangible employment action’ claim, and her ‘hostile

environment’ claim as one in which no adverse ‘tangible employment action’

occurred.”). Thus, even assuming Plaintiff could show severe or pervasive racial

harassment, she cannot prevail on her hostile work environment claim asserted

against the City because she essentially conceded below and has waived on appeal

the Faragher/Ellerth issue. Accordingly, we affirm the district court’s order

granting summary judgment to the City on Plaintiff’s hostile work environment

claim.

III. Plaintiff’s Retaliation Claim

Plaintiff claims that the city council terminated her on November 9, 2015 in

retaliation for the EEOC charge she filed on March 3, 2015. Like her race

discrimination claim, Plaintiff’s retaliation claim is based on circumstantial

evidence and thus is analyzed under the McDonnell Douglas burden-shifting

framework. See Johnson v. Miami-Dade Cnty., 948 F.3d 1318, 1325 (11th Cir.

2020) (“When a Title VII retaliation claim . . . is based on circumstantial evidence,

this Circuit utilizes the three-part McDonnell Douglas burden-shifting framework.”

(citation and footnote omitted)). As that framework is applied in the retaliation

context, the plaintiff must first establish a prima facie case of retaliation by

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showing that: (1) she engaged in statutorily protected conduct—that is, conduct

protected by Title VII, (2) she suffered an adverse employment action, and (3)

“there is some causal relationship between the two events.” Id. (citation and

internal quotation marks omitted). The burden then shifts to the defendant

employer to articulate a legitimate, nonretaliatory reason for the adverse action. Id.

Assuming the defendant makes the required showing, the burden shifts back to the

plaintiff to prove that “the reason offered by the defendant was not the real basis

for the decision, but a pretext” for retaliation. Id. (citation and internal quotation

marks omitted).

As to Plaintiff’s prima facie case, the City concedes that Plaintiff engaged in

protected activity when she filed the March 2015 EEOC charge and that she

suffered an adverse employment action when she was terminated in November

2015, but it argues there is no causal link between those two events. To establish

causation at the prima facie stage of the analysis, Plaintiff must show that her

protected activity (the March 2015 EEOC charge) and the alleged adverse action

(her November 2015 termination) were not “wholly unrelated.” See Tolar v.

Bradley Arant Boult Commings, LLP, 997 F.3d 1280, 1294 (11th Cir. 2021)

(citation omitted). Even under that lenient standard, we agree with the Magistrate

Judge that Plaintiff did not present enough evidence of causation to establish a

prima facie case of retaliation.

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As explained in the R&R, the eight-month delay between Plaintiff’s March

2015 EEOC charge and her November 2015 termination is too long to infer

causation based on temporal proximity. See Johnson, 948 F.3d at 1327–28

(“[M]ere temporal proximity, without more, must be very close to suggest

causation in a Title VII retaliation case.” (citation and internal quotation marks

omitted) (alterations adopted)). The only other evidence Plaintiff cites in support

of the causation element of her retaliation claim is an August 2015 email from city

council member Barbara Bender to the Snellville city attorney inquiring about

Plaintiff’s eligibility to serve as the absentee ballot clerk in the upcoming election,

given her pending EEOC Charge. It is undisputed that Bender subsequently voted

to appoint Plaintiff to the absentee ballot clerk position, and that Plaintiff received

the appointment and remained employed as city clerk for several months after

Bender’s inquiry to the city attorney. Given that fact, it would be unreasonable to

infer from Bender’s August 2015 inquiry that Plaintiff’s termination was related to

her EEOC charge.

Even assuming Plaintiff could establish a prima facie case of causation, she

cannot establish “but-for” causation as required to overcome the City’s legitimate

explanation for her termination—namely, performance issues and doubt on the part

of then-mayor Witts and the city council concerning Plaintiff’s ability to loyally

serve the incoming Witts administration. See Tolar, 997 F.3d at 1294 (“At the

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stage of summary judgment proceedings in which the plaintiff must rebut the

defendant’s proffered nonretaliatory reason for its action . . . the plaintiff must

meet the more demanding ‘but for’ test [to establish causation].”). The City’s

explanation for Plaintiff’s termination meets its “exceedingly light” burden at the

second stage of the McDonnell Douglas analysis to articulate a legitimate,

nonretaliatory reason for its adverse action. Furcron v. Mail Ctrs. Plus, LLC, 843

F.3d 1295, 1312 (11th Cir. 2016) (citation and internal quotation marks omitted).

See also Comcast Corp. v. Nat’l Ass’n of African American-Owned Media, 140 S.

Ct. 1009, 1019 (2020) (“Under McDonnell Douglas’s terms . . . only the burden of

production ever shifts to the defendant, never the burden of persuasion.”).

Because the City has articulated a legitimate, nonretaliatory reason for its

decision, the burden shifts to Plaintiff “to come forward with evidence . . .

sufficient to permit a reasonable factfinder to conclude that the reasons given by

[the City] were not the real reasons” for its action, and that the real reason was

retaliation. Furcron, 843 F.3d at 1313 (citation and internal quotation marks

omitted). “Conclusory allegations” of retaliation, “without more, are not sufficient

to raise an inference of pretext.” Id. (citation and internal quotation marks

omitted). At this stage of the analysis, Plaintiff can only survive summary

judgment by presenting “sufficient evidence to demonstrate the existence of a

genuine issue of fact as to the truth” of each legitimate explanation proffered by

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the City. Id. (quotation marks omitted). As this Court explained in a recent en

banc decision:

We have repeatedly emphasized that provided . . . the proffered reason
is one that might motivate a reasonable employer, an employee must
meet that reason head on and rebut it. Thus, to establish pretext at the
summary judgment stage, a plaintiff must 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. A reason is not pretext for retaliation unless it is shown both
that the reason was false, and that retaliation was the real reason. And
to repeat, in determining whether the plaintiff has met her burden to
show pretext, we remain mindful that it is the plaintiff’s burden to
provide evidence from which one could reasonably conclude that but
for her alleged protected act, her employer would not have fired her.

Gogel, 967 F.3d at 1136 (internal citations and quotation marks omitted)

(alterations adopted).

In her appellate brief, Plaintiff cites three pieces of evidence to show pretext:

(1) Council members Witts and Howard are members of a Facebook group that

allegedly referred to Plaintiff and her husband as monkeys, (2) deposition

testimony by Kautz that Witts had accused Kautz of racebaiting during council

meetings, and (3) an alleged statement by Witts to the effect that he could not be

racist because he had black employees. With respect to the Facebook incident,

Plaintiff could not recall any specifics about the conversation, including whether

the comment referred to her. Not only that, but although Plaintiff testified in her

deposition that she had a copy of the Facebook post, she nevertheless failed to

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submit it as evidence. Under those circumstances, this alleged incident cannot

establish pretext. As for the other two pieces of evidence, even when considered in

conjunction with the nebulous Facebook allegation, those comments do not

establish “but-for” causation as is required for Plaintiff’s retaliation claim to

survive summary judgment at the pretext stage of the analysis. See id. at 1135–36.

Accordingly, Plaintiff’s retaliation claim would fail at the pretext stage of the

analysis, even if she could establish a prima facie case.

CONCLUSION

For the reasons stated above, we affirm the district court’s order granting

summary judgment to the City on Plaintiff’s Title VII race discrimination, racial

harassment, and retaliation claims.

AFFIRMED.

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