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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11601
Non-Argument Calendar
____________________
VENENA PRESTON, et al.,
Plaintiff,
LATOYA RILEY,
Plaintiff-Appellant,
versus
CSX TRANSPORTATION, INC.,
Defendant-Appellee,
ROBERT GOLDEN,
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2 Opinion of the Court 21-11601
Defendant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:17-cv-04215-MHC
____________________
Before JORDAN, ROSENBAUM, and NEWSOM, Circuit Judges.
PER CURIAM:
Latoya Riley filed a counseled lawsuit against her employer,
CSX Transportation, Inc., alleging a claim of race discrimination
under 42 U.S.C. § 1981 and Title VII, 42 U.S.C. § 2000e-2, arising
out of her termination in 2013. 1 A magistrate judge issued a report
and recommendation (“R&R”) concluding that Riley could not es-
tablish a prima facie case of discrimination or show that CSX’s
stated reason for dismissing her—that she committed a major
safety violation—was a pretext for discrimination. The magistrate
judge found that Riley’s testimony about her proffered comparator
was not admissible for lack of personal knowledge and that, even if
her testimony were admissible, the comparator was not similarly
1 Riley does not address, and so has abandoned, her other claims for race and
sex discrimination and retaliation. See Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 680–82 (11th Cir. 2014) (issues not raised on appeal are deemed
abandoned).
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21-11601 Opinion of the Court 3
situated in all material respects. Riley did not object to the R&R,
despite being warned of the consequences for failing to do so, and
the district court adopted the R&R and granted summary judg-
ment to CSX. Riley now appeals.
We affirm. Our rules provide that a party’s failure to make
timely objections to a magistrate judge’s report and recommenda-
tion, if properly warned of the consequences, as Riley was here,
“waives the right to challenge on appeal the district court’s order
based on unobjected-to factual and legal conclusions.” 11th Cir. R.
3-1. We may still review “for plain error if necessary in the interests
of justice.” Id.
Riley cannot establish plain error. She contends that the
magistrate judge erred in rejecting her testimony about the com-
parator as not based on personal knowledge. But even if that’s
true, she does not dispute the judge’s alternative conclusion that,
assuming her testimony were admissible, the comparator’s con-
duct was materially different than Riley’s, justifying CSX’s decision
to treat the matters differently. Because Riley abandons any chal-
lenge to that independent basis for the judgment, and it otherwise
appears that the magistrate judge accurately perceived the record
and correctly applied the law, we affirm the district court.
I.
At the time of the relevant events, Riley, who is African
American, worked for CSX as a train dispatcher. In that role, she
was broadly responsible for ensuring the safe and efficient
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movement of trains on CSX’s operating lines. Dispatchers “are in
an extremely safety-sensitive role,” entrusted with avoiding the po-
tentially catastrophic train collisions that might occur if train move-
ments are not planned correctly.
In 2013, CSX charged Riley with a “major” violation of its
operating procedures—the most serious category of violations—
for failing to enter an “EC-1” safety designation for an unattended
train on a mainline track. The EC-1 designation gives protection
to individuals or trains using a particular portion of a track by pre-
venting any other train from being directed to that location. CSX
alleged that, on July 27, 2013, Riley failed to enter an EC-1 designa-
tion for a train after it had completed a coal delivery, leaving it un-
protected on a mainline track for approximately 48 hours. In ac-
cordance with its policies, CSX held an investigative hearing on the
charge in August 2013, with Atlanta Division Manager Jermaine
Swafford presiding. Chief Dispatcher J.P. Garrett testified for CSX.
After the hearing, Swafford sustained the charge and dismissed Ri-
ley.
The magistrate judge described the testimony about the in-
cident as follows:
[Riley’s] situation involved a train that was trans-
ferred to [her] care. [She] was then supposed to place
an EC-1 protection in the dispatching system, which
[she] did not do. Instead, when the train crew said
“this is EC-1, [number] 987720, going to release it
back to you,” [she] thought the crew was releasing
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21-11601 Opinion of the Court 5
the EC-1 rather than releasing the now-unattended
train. [She] did not understand that the crew left the
now-unattended train . . . on the mainline track even
though the crew also gave [her] the mileposts where
the train was left.
During the investigative hearing, Garrett
agreed that the train crew did not use “the proper ter-
minology” and did not provide [Riley] with all the in-
formation they were required to provide when leav-
ing a train unattended. But Garrett insisted that [Ri-
ley] was still guilty of violating [CSX’s]’s operating
procedures because she was “a qualified dispatcher on
the [relevant] desk” and was “supposed to know” bet-
ter. The place where the train was left was a “single
track mainline,” meaning the train was necessarily
left blocking a mainline track because “that’s the only
place you can leave it.” It is “the obligation of the
train dispatcher to acquire [the necessary] infor-
mation in the event that it is not provided.”
Riley’s union contested her termination by filing an arbitra-
tion claim under the collective bargaining agreement. The arbitra-
tion board agreed with CSX “that [Riley] did, in fact, release the
protection of the [] coal train, leaving it unprotected on the main-
line,” and that because she did not follow operating rules, the train
was left on the mainline unprotected for 48 hours and “[d]isastrous
and tragic consequences could have but fortunately did not result.”
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Nevertheless, the board determined that termination was too
harsh a punishment, and that she should be permitted to return to
work, subject to serving an unpaid suspension for the time be-
tween her termination and eventual reinstatement.
II.
In the magistrate judge’s view, Riley could not establish a
prima facie case of discrimination arising out of her termination
because she lacked a proper comparator.2 At summary judgment,
Riley relied on a comparison to Michelle Hollinhead, a white train
dispatcher who, Riley claimed, was not punished for a similar inci-
dent involving an unprotected train.
The magistrate judge first found that Riley’s testimony
about Hollinhead was not “evidence” because Hollinhead failed to
show her personal knowledge of many details. The magistrate
judge then concluded in the alternative that, even assuming Riley’s
testimony were admissible, Hollinhead’s situation was materially
different because undisputed evidence showed she did not know or
have reason to know of the unprotected train, and so did not com-
mit misconduct. The magistrate judge explained,
2 The magistrate judge also concluded that Riley could not rely on the “cat’s
paw” theory of liability to establish a prima facie case because Riley did not
assign any discriminatory motive to Swafford, who made the termination de-
cision based on an independent investigation. Riley does not raise this issue
on appeal, so we do not consider it.
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21-11601 Opinion of the Court 7
In Hollinhead’s case, the crew who contacted her to
“release their EC-1 authority” had “cleared the main-
line track.” A second crew then properly requested
and received EC-1 authority for that portion of the
track. Unbeknownst to Hollinhead, the first crew
then “came back out on the mainline track into dark
territory while the second train with the proper EC-1
authority was also on the mainline track.” The first
crew was at fault because they “no longer had any
EC-1 authority” and needed to “request another EC-
1 authority before coming back out onto the mainline
track.”
In short, according to the magistrate judge, Hollinhead was not a
valid comparator because “[Riley] engaged in misconduct and Hol-
linhead did not.”
Finally, the magistrate judge found that, even assuming she
could establish a prima facie case, Riley did not offer sufficient evi-
dence to create a genuine triable issue regarding whether CSX’s
stated reason for terminating her was pretext for discrimination.
III.
On appeal, Riley’s sole argument is that the magistrate judge
plainly erred in rejecting her testimony about the Hollinhead inci-
dent as not based on personal knowledge. In her view, the magis-
trate judge effectively rendered an impermissible credibility deter-
mination. But Riley does not challenge or address the magistrate
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8 Opinion of the Court 21-11601
judge’s alternative conclusion that, even assuming her testimony
about Hollinhead were admissible, summary judgment was still
appropriate because undisputed evidence showed that, in contrast
to Riley, Hollinhead did not know or have reason to know of the
unprotected train, and so did not violate CSX’s rules.
When a district court bases its judgment on “multiple, inde-
pendent grounds,” the appellant “must convince us that every
stated ground for the judgment against [her] is incorrect” to obtain
reversal. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680
(11th Cir. 2014). If the appellant fails to properly challenge one of
the independent grounds for the judgment, she is “deemed to have
abandoned any challenge of that ground, and it follows that the
judgment is due to be affirmed.” Id.
Here, Riley abandoned any challenge to the district court’s
alternative conclusion that, even assuming her testimony about
her comparator were admissible, summary judgment was still ap-
propriate because undisputed evidence established that her com-
parator did not engage in the “same basic conduct (or misconduct)
as the plaintiff” and so was not “similarly situated in all material
respects.” Lewis v. City of Union City, 918 F.3d 1213, 1226–27
(11th Cir. 2019) (en banc). As a result, “the judgment is due to be
affirmed.” Sapuppo, 739 F.3d at 680.
In any case, no plain error occurred because the magistrate
judge appears to have accurately perceived the record and correctly
applied the relevant law. In the light most favorable to Riley, the
evidence shows that Riley mistakenly released an EC-1 designation
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21-11601 Opinion of the Court 9
for a train, leaving it unprotected in a dangerous area, while Hol-
linhead did not know or have reason to know of, or have any role
in causing, the unprotected train to be in her area. Because “[a]n
employer is well within its rights to accord different treatment to
employees . . . who engaged in different conduct,” Lewis, 918 F.3d
at 1228, the magistrate judge properly concluded that Hollinhead
was not a valid comparator for establishing either a prima facie case
or a genuine triable issue of discrimination.
AFFIRMED.