[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-14977 ELEVENTH CIRCUIT
Non-Argument Calendar MARCH 26, 2012
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cv-23932-UU
TAMMY VALDES,
Plaintiff-Appellant,
versus
MIAMI-DADE COLLEGE,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 26, 2012)
Before TJOFLAT, PRYOR and FAY, Circuit Judges.
PER CURIAM:
I.
In 1996, Miami-Dade College (MDC) employed Tammy Valdes as a part-
time instructor in its School of Justice (“SOJ”). In August 2006, the first of
several student complaints about Valdes’s classroom performance, especially
during exams, began to surface. Students said that she disturbed them during their
exams by talking loudly with profanity over her cell phone. SOJ’s internal
investigator, Lieutenant Donald Diecidue, investigated the complaint, speaking to
several students, and reported to SOJ’s Director of Training, Thomas Hood, that
the students’ complaints were valid. Hood met with Valdes and informed her that
such behavior would not be tolerated.
On March 28, 2007, Shawnee Fross, who had been overseeing the
performance of 32 part-time instructors at MDC, including Valdes, informed Hood
and Dr. Donna Jennings, SOJ’s Director, of 10 incidents between September 13,
2006, and March 16, 2007, in which Valdes’s performance was lacking. Some of
the incidents involved missing a class, or canceling a class without notice, or
being late to class. On one occasion she failed to appear and proctor an
examination. One of the incidents involved complaints from instructors that she
had left a testing area to talk on her cell phone. Fross counseled Valdes after
receiving those complaints. On May 21, responding to Jennings’s request for
additional information on these 10 incidents, Fross wrote Jennings and Hood a
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memo identifying the specific class of students affected in each of the incidents.
On May 28, 2007, Valdes filed a written grievance with the MDC Human
Resources Division, alleging that she was “being treated differently than other
instructors in [her] same position.” Such treatment, she said, had been going on
for nearly two years. Her grievance was investigated, and on July 5, 2007, SOJ
issued Valdes a written reprimand. The reprimand consisted of a synopsis of the
10 incidents Fross had reported on March 28 and May 21. Following the issuance
of the reprimand, Fross continued monitoring Valdes’s performance.
On October 8, 2007, Fross recorded that Valdes called to complain about
the number of hours she was working. On October 9, she recorded that Valdes
disrupted another instructor’s class with her “bitching.” On October 10, Barbara
Goodman, an instructor, informed Fross that a female African-American student
had complained that a female Hispanic instructor had referred to the students as
“idiots.” At the time of this incident, Valdes was the only female Hispanic
instructor on the job. Fross noted that a month before the incident Goodman
described, Fagan, another instructor, advised her to stop using Valdes as an
instructor because her negative tone and unprofessional language was detrimental
to student morale.
On June 1, 2009, a student informed Lieutenant Diecidue that Valdes had
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acted unprofessionally during a final exam. Diecidue told Fross, who requested
that he meet with the class. During the meeting, several students stated that
Valdes disrupted the exam by talking on her cell phone. When the meeting ended,
Diecidue directed the students to submit a written statement. Fourteen students
signed a statement written by their class leader, which stated, among other things,
that Valdes had used SOJ’s ammunition and a student’s magazines while taking
target practice at the Miami Police Department’s Medley Firearms Range. When
the Diecidue informed Hood of this allegation, Hood asked him to delve into the
matter further.
On June 11, 2009, Valdes complained to SOJ’s Director, then Ronald
Grimmings, that she had received no response from the May 28, 2007 grievance
she had filed with MDC’s Human Resources Division. That same day, June 11,
Hood sent Valdes a letter suspending her without pay pending the outcome of
Diecidue’s investigation.
In August, Diecidue gave Hood a final report of his investigation. The
report confirmed the validity of the complaints the students had made. On
October 6, 2009, Valdes filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”), alleging that her June 11 suspension without
pay constituted an act of gender discrimination. She claimed that “male
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instructors have been the subject of similar and more serious investigations; yet,
the male employees were not suspended while they were being investigated.” On
October 21, 2009, Grimmings sent Valdes a letter terminating her employment.
On April 14, 2010, Valdes filed a second EEOC complaint, alleging that her
termination was discriminatory and in retaliation for her having filed the EEOC
complaint on October 6, 2009. In August 2010, EEOC issued a right to sue letter
for the October 6 complaint. On October 29, 2010, Valdes brought this lawsuit.
II.
Valdes’s complaint, as amended, contained eight counts: Counts 1 and 5
alleged that her suspension on June 11, 2009, and termination on October 21,
2009, constituted gender discrimination, in violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq. Counts 3 and 7
alleged that the gender discrimination described in Counts 1 and 5 violated the
Florida Civil Rights Act (“FCRA”), Fla. Stat. § 760.01, et seq. Counts 2 and 6
alleged that the June 11 suspension and October 21 termination constituted
retaliation under Title VII for engaging in protected activity, i.e., filing the
grievance on May 28, 2007, and the EEOC complaint on October 6, 2009. Counts
4 and 8 alleged that the conduct described in Counts 2 and 6 violated FCRA.
MDC answered Valdes’s complaint and denied liability. And, following
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discovery, it moved the court for summary judgment.1
The district court addressed the merits of Valdes’s Title VII and FCRA
claims using the standards required to make out a claim under Title VII. See
Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998)
(“decisions construing Title VII guide the analysis of claims under [FCRA]”). The
court first addressed the gender discrimination claims, then the retaliation claims.
Title VII prohibits an employer from discharging an employee, or otherwise
discriminating against her with respect to her employment, on the basis of gender.
42 U.S.C. § 2000e-2(a)(1). To establish a prima facie case of disparate treatment, a
female plaintiff must show that her employer treated similarly situated male
employees differently. See Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.
1999). This gender-based disparate treatment is what Valdes alleged in her EEOC
complaints and in the district court.
In determining whether the comparator employees Valdes named in her
complaint were similarly situated, the district court properly considered whether
they were involved in, or accused of, the same or similar conduct and disciplined
differently. Id. The quality and quantity of the plaintiff’s and the comparators’
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Valdes asked the district court to postpone consideration of the motion so she could
engage in further discovery, but the court denied her request. Valdes challenges the ruling in this
appeal. The challenge is meritless, as the district court acted well within its discretion.
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misconduct must be “nearly identical” in order to prevent courts from
second-guessing reasonable employer decisions by comparing apples with oranges.
Id. Misconduct merely similar to that for which the plaintiff was disciplined is not
sufficient. Rioux v. City of Atlanta, 520 F.3d 1269, 1280 (11th Cir. 2008).
As the district court noted, Valdes’s complaint “name[d] ten male employees
who were investigated for misconduct; yet, unlike Valdes, never suspended without
pay during their investigations.” Order, October 5, 2011 (“Order”) at 12. But,
other than the bare allegations of her complaint, “Valdes provide[d] no additional
information on seven of the alleged ‘comparators.’” Id. “Valdes made no showing
at all.” Id. at 13. “As for the remaining three conparators (Mitchell, Delgado, and
Bruzinski), Valdes present[d] evidence of allegations that no reasonable fact-finder
could consider to be “nearly identical” in “quality and quantity” to satisfy the legal
standard set in Maniccia, supra, at 1368.” Id. Because Valdes failed to present
evidence of similarly situated comparators, the district court granted MDC
summary judgment on herTitle VII and FCRA gender discrimination claims.
Having disposed of these claims, the district court turned to Valdes’s
retaliation claims. Title VII prohibits retaliation against an employee for opposing
any practice made unlawful by Title VII (“Opposition Clause”) or for filing a
charge with the EEOC pursuant to Title VII (“Participation Clause”). To establish
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a prima facie case, a 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 casual relationship between the protected activity and the adverse
action. McCann v. Tillman, 526 F.3d 1370, 1375 (11th Cir. 2008). A plaintiff can
show that she engaged in a protected activity if she proves that she had a subjective
good faith belief, as well as an objective, reasonable belief that her employer
engaged in an unlawful employment practice when she opposed that practice. See
Dixon v. The Hallmark Cos., 627 F.3d 849, 947 (11th Cir. 2010). An allegation of
unfair treatment, absent discrimination based on gender, does not state an unlawful
employment practice under Title VII. Coutu v. Martin Cnty. Bd. of Comm’rs, 47
F.3d 1068, 1074 (11th Cir. 1995). Furthermore, to establish a causal connection,
the plaintiff must show that the employer making the adverse employment action
was aware of the protected conduct. McCann, 526 F.3d at 1376.
Valdes claims that the grievance she filed with MDC’s Human Resources
Division on May 28, 2007 constituted a protected activity and that her suspension
without pay on June 11, 2009, constituted an act in retaliation for her having filed
the grievance. The district court rejected her Title VII and FCRA retaliation claims
on two grounds. First, since the “grievance [was] essentially a list of workplace
complaints unrelated to Title VII, there [was] no need to determine whether [MDC]
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unlawfully retaliated against Valdes.” Order at 24. But even if viewed as protected
activity, Valdes failed to show a causal link between the grievance and the
suspension. “Considering the numerous allegations against Valdes in Diecidue’s
investigation, no reasonable fact-finder could find that [MDC] [did] not satisf[y] its
‘exceedingly light’ burden of proffering a legitimate reason for suspending Valdes”
id. at 26, “namely the students’ allegations.” Id. at 28.
Valdes claims that her termination on October 21, 2009 was in retaliation for
her having filed a complaint with the EEOC on October 6, 15 days earlier. As the
district court properly held, the filing constituted protected activity. Though
Valdes swore to the complaint’s allegations before a notary public on October 6,
the EEOC did not receive it until October 20, and MDC was not aware of the filing
on October 21. In addition, the court noted that Bettie Thompson, Vice Provost for
Human Resources at MDC, made the decision to fire Valdes because, as far back as
2006, “Valdes had been counseled for being disrespectful to students.” Id. at 31.
And, [s]ince Valdes . . . offered no evidence to show that Thompson’s reasons were
pretextual, even if [the court] assumed that Thompson was aware of the EEOC
complaint, . . . no question of material fact exist[ed] on the question of whether
[MDC] unlawfully retaliated against Valdes by firing her.” Id. The court therefore
rejected Valdes’s Title VII and FCRA retaliation claims as well.
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III.
Valdes appeals the district court’s judgment on all counts. She argues that
the district court erred in rejecting her gender discrimination claims for failure to
present evidence of similarly situated comparators; that the court erred in
concluding that she failed to make out a prima facie case on her claims of
retaliation; and that the court relied on inadmissible hearsay when it considered
Lieutenant Diecidue’s report, which contained information related to him by
students and instructors. We find no merit in Valdes’s challenges to Diecidue’s
report, which was filed in August of 2009. The report had a bearing on
Thompson’s October 21, 2009 decision to fire Valdes; Hood’s June 11, 2009
decision came before Diecidue filed the report. The report, and the information it
related, was not received for the truth of the contents; rather, it was received for the
purpose of showing, in part, what prompted Thompson’s decision.
As for the district court’s rejection of Valdes’s claims of gender
discrimination and retaliation, we find no merit in Valdes’s arguments. The district
court viewed the evidence before it in the light most favorable to Valdes, as it was
required to do on summary judgment, and it correctly applied the relevant law to
the facts that evidence yielded. The court therefore did not err in concluding that
Valdes failed to establish a case on any of her counts. The judgment of the district
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court is, accordingly,
AFFIRMED.
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