PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 97-6076
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D. C. Docket No. CV 95-N-2798-S
PATRICIA A. JONES,
Plaintiff-Appellant,
versus
BESSEMER CARRAWAY MEDICAL CENTER,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Alabama
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(March 27, 1998)
Before EDMONDSON and HULL, Circuit Judges, and CLARK, Senior Circuit Judge.
EDMONDSON, Circuit Judge:
Patricia Jones (“Plaintiff”) brought suit against Bessemer
Carraway Medical Center (“Defendant”) under Title VII alleging
that she was discriminatorily discharged. The district court
granted Defendant’s motion for judgment as a matter of law
after determining that Plaintiff failed to establish a prima facie
case of discrimination. We affirm the judgment.
Background
Plaintiff -- a black woman -- was hired by Defendant in 1987
as a Licensed Practical Nurse on its medical-surgical floor.
Plaintiff was responsible for general patient care. During the
pertinent period, she worked on the 3:00 to 11:00 p.m. shift and
was required to be at work by 2:30 p.m. to take “report” (receive
patient information). Plaintiff was also required to wear a white
2
uniform or a “scrub suit” (“scrubs”) while performing her
nursing duties.1
One day in 1995, Plaintiff clocked into work at 2:32 p.m.
while wearing a red jogging suit. She stated that she clocked
in out-of-uniform to avoid being late and receiving another
tardy under Defendant’s attendance policy.2 She admitted that
one more tardy would have been grounds for her dismissal
given her poor attendance record.
After clocking into work, Plaintiff went to take report
wearing her red jogging suit. She then asked the Head Nurse,
1
No one disputes that street clothes were not permitted to be worn
during work on Plaintiff’s floor. Other areas of the medical center
had different requirements and policies about these issues. So,
discipline for conduct in those areas is not necessarily relevant to the
situation at issue here.
2
Defendant had an attendance policy so that employees could be
terminated if they incurred ten “occurrences” of absenteeism within
a rolling 12-month period. An absence from work counted as one
occurrence; a tardy counted as one-half an occurrence. But, the
attendance policy permitted Plaintiff to arrive by 2:37 p.m. without
being considered “tardy.”
3
Charlene Smith (“Smith”), who is a white woman, whether she
could leave during her lunch break to go home and to lock her
front door. Smith denied this request and claims that she,
seeing Plaintiff was out-of-uniform, told Plaintiff to put on
scrubs immediately.3 But, instead of going to put on scrubs,
Plaintiff went to ask another supervisor, Shirley Rollan
(“Rollan”), for permission to leave during the shift. Plaintiff
says she intended to change into scrubs after she talked with
Rollan.
After Smith’s discussion with Plaintiff, Smith went
to the Assistant Administrator of Nursing, Joyce Carlin
(“Carlin”) -- a white woman, who is Smith’s supervisor -- to
report the incident. Smith told Carlin that Plaintiff came to work
out-of-uniform and that she did not change into scrubs when
instructed. Carlin then had Plaintiff -- who, after talking with
3
Plaintiff contests that Smith gave her this instruction.
4
Rollan, was still wearing her red jogging suit -- come to her
office to discuss the situation.
Plaintiff told Carlin that she had clocked into work out-of-
uniform. Plaintiff also repeatedly requested that she be able to
leave during her shift to lock up her house; Carlin denied the
requests because of staffing concerns. Carlin also claims that
she instructed Plaintiff to change into scrubs but that Plaintiff
would not do it.4 At that point, Carlin asked Plaintiff to clock
out and to leave work -- around 2:50. Carlin did not investigate
the situation further.
The personnel committee met the following week to
discuss the incident and, after discussing it with Carlin,
decided to terminate Plaintiff. Two reasons were given for
Plaintiff’s dismissal: (1) failure to the follow the instructions of
4
Plaintiff contests that Carlin gave her this instruction.
5
Smith, which constituted insubordination;5 and (2) being
unprepared for work.
Plaintiff filed suit against Defendant claiming she was
discriminatorily discharged on the basis of race in violation of
Title VII. At trial, Plaintiff sought to introduce evidence that
nonminority employees were treated more favorably for similar
conduct and that Smith’s acts were motivated by racial animus.
The district court, however, excluded the evidence. And, at the
close of Plaintiff’s case, the district court concluded that
Plaintiff had failed to establish a prima facie case of
discrimination under Title VII and granted Defendant’s motion
for judgment as a matter of law. Plaintiff appeals.
Discussion
5
While Carlin claims that Plaintiff did not follow her instruction (in
addition to Smith’s instruction), disobedience to Carlin was not given
as a reason for Plaintiff’s dismissal.
6
This court reviews a district court*s grant of judgment as
a matter of law de novo and applies the same standards utilized
by the district court. Richardson v. Leeds Police Dep’t, 71 F.3d
801, 805 (11th Cir. 1995). A judgment as a matter of law should
be granted if, upon considering all the evidence in the light
most favorable to the nonmoving party, “reasonable people in
the exercise of impartial judgment could not arrive at a contrary
[decision].” Isenbergh v. Knight-Ridder Newspaper Sales, Inc.,
97 F.3d 436, 439 (11th Cir. 1996). “The court may not weigh the
evidence or decide the credibility of witnesses . . . . The
nonmoving party must provide more than a mere scintilla of
evidence to survive a motion for judgment as a matter of law;
‘there must be a substantial conflict in evidence to support a
jury question.’” Id. (quoting Carter v. City of Miami, 870 F.2d
578, 581 (11th Cir. 1989)) (internal citations omitted).
7
I. Prima Facie Case of Discrimination under Title VII
Plaintiff contends that the district court erred by excluding
evidence and by concluding that she failed to establish a prima
facie case of discrimination. Title VII of the Civil Rights Act of
1964 makes it unlawful for an employer “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.” 42 U.S.C.
§ 2000e-2(a)(1). A plaintiff may establish a prima facie case of
discrimination by circumstantial evidence of discriminatory intent,
see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
(1973); Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997).
In this case, Plaintiff attempted to prove discrimination with
circumstantial evidence, using the familiar McDonnell
Douglas/Burdine three-step burden shifting framework. Under
this framework, a plaintiff carries the initial “burden of
8
establishing a prima facie case of racial discrimination.”
McDonnell Douglas, 411 U.S. at 802. Then, if a prima facie case is
shown, the defendant must “articulate some legitimate,
nondiscriminatory reason for the [adverse employment action].”
Id. If this is done, then the plaintiff may attempt to show that the
proffered reason was merely a pretext for the defendant’s acts.
See Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248,
253 (1981). “The ultimate burden of persuading the trier of fact
that the defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff.” Id. The issue in this case
is whether the district court properly concluded that Plaintiff did
not establish her prima facie case.
Plaintiff in this case tried to show a prima facie case of a
discriminatory discharge by proving these things: (1) the plaintiff
belongs to a racial minority; (2) she was subjected to adverse job
action; (3) her employer treated similarly situated employees of
other races more favorably; and (4) she was qualified to do the
9
job. See Holifield, 115 F.3d at 1562; see also McDonnell Douglas,
411 U.S. at 802. “Demonstrating a prima facie case is not
onerous; it requires only that the plaintiff establish facts adequate
to permit an inference of discrimination.” Holifield, 115 F.3d at
1562 (citations omitted). The chief question on appeal is whether
Plaintiff has satisfied the third element: the like-to-like issue.6
6
On the prima facie case, Plaintiff has called our attention to these
words in Jones v. Gerwens, 874 F.2d 1534 (11th Cir. 1989):
[W]e hold that, in cases involving alleged racial bias in the
application of discipline for violation of work rules, the plaintiff,
in addition to being a member of a protected class, must show
either (a) that he did not violate the work rule, or (b) that he
engaged in misconduct similar to that of a person outside the
protected class, and that the disciplinary measures enforced
against him were more severe than those enforced against the
other persons who engaged in similar misconduct.
Jones, 874 F.2d at 1540.
Considering the facts in Jones, our impression is that words
about “did not violate the work rule” are unnecessary to the decision
in Jones and are dicta; but we will discuss them. The pertinent
words in Jones demand not two, but three, elements: (1) the plaintiff
is a member of a protected class; (2) the plaintiff has engaged --
either (a) disputedly or (b) admittedly -- in misconduct similar to
persons outside the protected class; and (3) that similarly situated,
nonminority employees (that is, persons outside the protected class)
10
A. Similarly Situated Employees
Plaintiff first contends that the district court erred by
excluding evidence of similarly situated, nonminority employees
who were treated more favorably than she was. Evidentiary
rulings by the district court are reviewed for abuse of discretion.
See Walker v. NationsBank, 53 F.3d 1548, 1554 (11th Cir. 1995).
Evidence of similarly situated employees must be used to
support Plaintiff’s prima facie case. This aspect of Plaintiff’s case
is satisfied if:
[T]he plaintiff [shows] that [she] and the employees are
similarly situated in all relevant respects. . . . [cites
omitted]. 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.
received more favorable treatment.
We stress that, under the Jones formulation, no plaintiff can
make out a prima facie case by showing just that she belongs to a
protected class and that she did not violate her employer’s work rule.
The plaintiff must also point to someone similarly situated (but
outside the protected class) who disputed a violation of the rule and
who was, in fact, treated better.
11
Holifield, 115 F.3d at 1562. The most important factors “‘in the
disciplinary context . . . are the nature of the offenses committed
and the nature of the punishments imposed.’” Jones v. Gerwens,
874 F.2d 1534, 1539-40 (11th Cir. 1989) (quoting Moore v. City of
Charlotte, 754 F.2d 1100, 1105 (4th Cir. 1985)); see Holifield, 115
F.3d at 1562; see also Wilmington v. J.I. Case Co., 793 F.2d 909,
916 (8th Cir. 1986); Nix v. WLCY Radio/Rahall Communications,
738 F.2d 1181, 1185 (11th Cir. 1984). If Plaintiff fails to identify
similarly situated, nonminority employees who were treated more
favorably, her case must fail because the burden is on her to
establish her prima facie case. See McDonnell Douglas, 411 U.S.
at 802; Jones, 874 F.2d at 1541. Here, Plaintiff has failed to satisfy
that burden.
Plaintiff first offers evidence that Smith and Beth Nettles
(“Nettles”) -- white women -- requested days off and, after their
requests were denied, took the days off nonetheless. Plaintiff
asserts that this behavior constitutes insubordination for which
12
they were not terminated. The record, however, indicates that
incidents of this kind were not treated or disciplined by Defendant
as insubordination but were handled as “occurrences” under and
violations of Defendant’s attendance policy. Plaintiff stresses that
Carlin testified that Carlin considered the pertinent conduct --
taking a day off after being denied permission to take the day off --
to be a degree of insubordination. But, Carlin also made it clear
that this conduct happened all the time and that Defendant
consistently treated these incidents as violations of the
attendance policy and gave the employee an “occurrence” under
that policy. No evidence indicates that Defendant ever treated this
kind of violation as insubordination.
We have written that “Title VII does not take away an
employer’s right to interpret its rules as it chooses, and to make
determinations as it sees fit under those rules.” Nix, 738 F.2d at
1187. Here, Defendant was entitled to conclude that taking a day
off after a request for the day off is denied is not insubordination
13
under its rules, but instead, is an attendance violation. Nothing is
wrong with this practice as long as the practice is followed in a
nondiscriminatory manner (and no evidence shows discriminatory
application -- whites and blacks treated differently -- of the
practice). Thus, Plaintiff’s use of Smith and Nettles as
comparators is unwarranted.7
7
We also note that Smith’s and Nettles’s day-off violations were
several years distant from Plaintiff’s acts; and, at the time of their
incidents (1988 and 1985, respectively), they were under supervisors
different from Plaintiff’s supervisor. Such a difference may be
sufficient to prevent them from being considered “similarly situated”
with Plaintiff. See Jones, 874 F.2d at 1541 (“Courts have held that
disciplinary measures undertaken by different supervisors may not
be comparable for purposes of Title VII analysis.”); Cooper v. City of
North Olmstead, 795 F.2d 1265, 1271 (6th Cir. 1986) (“Although a
change in managers is not a defense to claims of race or sex
discrimination, it can suggest a basis other than race or sex for the
difference in treatment received by two employees.”). Different
supervisors may have different management styles that -- while not
determinative -- could account for the disparate disciplinary
treatment that employees experience. See Tate v. Weyerhaeuser Co.,
723 F.2d 598, 605-06 (8th Cir. 1983) (stating that evidence that one
manager may be more lenient than another may explain the
differential treatment that employees receive on a basis other than
race). Plaintiff, however, cites us to no evidence sufficient to
compare the respective management styles of Smith’s and Nettles’s
supervisors with that of Jones’s supervisor.
14
Plaintiff also points to evidence of medication errors by
Smith, Nettles, and Beverly Clark (“Clark”) -- all white women --
that did not result in dismissal. She claims that these are
incidents of similarly situated employees because, like
insubordination, Defendant classifies medication errors as Group
A violations, that is, violations that could result in termination.
The record indicates that medication errors are not always,
in fact, Group A violations. Instead, Plaintiff has only shown that
the errors could be considered Group A violations depending on
the medication at issue. As a result, Plaintiff’s sweeping
classification is unfounded. Also, despite Plaintiff’s contentions,
it is insufficient to characterize conduct as “similar” for Title VII
analysis simply because it may result in the same or similar
punishment. As we wrote in Jones, one of the most important
factors in determining similarity is the “nature of the offenses
committed.” Jones, 874 F.2d at 1539; see also Holifield, 115 F.3d
at 1562. And, medication errors, in fact, simply involve too many
15
variables that preclude their use as comparators with incidents of
insubordination.8 In the context of this case, Plaintiff’s argument
is based on a level of generality that is too high for use in defining
the concept of “similar.” We cannot endorse comparisons that are
this ill-defined.
Plaintiff also claims that Clark was a similarly situated
employee because she frequently was unprepared for work -- she
would have curlers in her hair and put makeup on during report --
and had a pretty poor tardiness record.9 This claim, however,
8
For example, medication errors may include: (1) giving the wrong
medication altogether; (2) giving the wrong amount of medication; (3)
giving medication at the wrong time; or (4) not giving medication at
all. Also, medication errors may involve issues of professional
judgment, which are not generally relevant in incidents of
insubordination. In addition, that these incidents may have occurred
at different times and under different supervisors lessens their
comparability. See Jones, 874 F.2d at 1541.
If Defendant had fired Plaintiff for medication errors, then we
would be more willing -- despite these variables -- to permit evidence
of other employees’ medication errors because the nature of the
offenses would be more similar. But, that set of facts is not the case
here; Plaintiff was not dismissed for medication errors.
9
Plaintiff also claims that Clark came to work while wearing street
16
ignores that Plaintiff was not terminated only because she was
unprepared; instead, she was terminated for being unprepared
and insubordinate, in the light of an already deficient employment
record. No evidence shows that Clark was insubordinate or was
accused of being insubordinate in conjunction with her
unpreparedness. Plaintiff’s multiple instances of misconduct on
the same day may simply have been “the straw that broke the
camel’s back.” Rohde v. K.O. Steel Castings, Inc., 649 F.2d 317,
322 (5th Cir. 1981). Again, Plaintiff cites us to no evidence that
Smith, Nettles, or Clark was ever in a similar situation; thus, they
are not proper comparators. Plaintiff has failed to
demonstrate that the other employees -- Smith, Nettles, and Clark
clothes. But, employees -- including Plaintiff -- were permitted to
come to this workplace in street clothes as long as they changed into
scrubs before the shift began. Here, Plaintiff provides no evidence
that Clark -- unlike Plaintiff -- was “clocked in” while in street clothes,
much less that she declined to comply speedily with a supervisor’s
direction to change into uniform. As a result, evidence that Clark
came to work in street clothes is not sufficient to make her a
comparator for Plaintiff.
17
-- were similarly situated for purposes of Title VII analysis. The
district court did not err by excluding the evidence and by
concluding, as a matter of law, that Plaintiff failed to meet her
burden of establishing a prima facie case.
B. Statements by Smith
Plaintiff also argues that the district court erred by excluding
racial statements allegedly made by Smith;10 Plaintiff cites Jones,
874 F.2d at 1540; and Elrod v. Sears Roebuck & Co., 939 F.2d 1466,
1469 n.2 (11th Cir. 1991). But even if we assume that the district
court was mistaken to exclude this evidence, we nonetheless
10
Plaintiff specifically contends that Smith said: (1) “You black
girls make me sick, sometimes I feel like just hitting you in the head”;
(2) “You black girls get away with everything”; and (3) “You black
girls make me sick.” Plaintiff -- correctly -- never argues that the
statements are direct evidence of discrimination for her dismissal.
Plaintiff’s case is one based on circumstantial evidence.
No evidence shows that Smith had failed, in the past, to report
to Carlin (or to another supervisor) employee misconduct that was
truly similar to Plaintiff’s conduct.
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conclude that the statements -- even if considered -- do not
establish the missing element of Plaintiff’s prima facie case of
discrimination.
For Plaintiff’s prima facie case of disparate treatment under
Title VII, she must show -- as a threshold matter under the
circumstantial evidence framework -- that nonminority, similarly
situated employees were treated more favorably: an improper
effect. See Holifield, 115 F.3d at 1562. It is this showing -- and not
the demonstration of racial animus alone -- that addresses the
fundamental issue in a Title VII disparate treatment case:
“‘whether the defendant intentionally discriminated against the
plaintiff.’” Nix, 738 F.2d at 1184 (quoting United States Postal Serv.
Bd. of Governors v. Aikens, 103 S.Ct. 1478, 1481-82 (1983))
(emphasis added).
Alleged racial animus of a supervisor does not alleviate the
need to satisfy the elements of a prima facie case, although
statements showing some racial animus may be significant
19
evidence of pretext once a plaintiff has set out the prima facie
case. See Smith v. Horner, 839 F.2d 1530, 1536-37 (11th Cir. 1988)
(under circumstantial evidence framework, statements may be
used to show pretext); see also E.E.O.C. v. Our Lady of the
Resurrection Medical Ctr., 77 F.3d 145, 149 (7th Cir. 1996); Woody
v. St. Clair County Comm’n, 885 F.2d 1557, 1560 (11th Cir. 1989);
McAdoo v. Toll, 615 F.Supp. 1309, 1314 (D. Md. 1985).
Whatever Smith’s racial attitudes may be, Plaintiff has failed
to present sufficient evidence that nonminority, similarly situated
employees were treated more favorably by her employer than she
was treated; so, Plaintiff did not establish a prima facie case of
discrimination under Title VII. The district court’s grant of
judgment as a matter of law is affirmed.11
11
We also note that Plaintiff cannot avoid this result simply by
disputing whether Smith actually instructed her to change into
scrubs. A dispute over the reasons for Plaintiff’s termination is
important only to the extent that it might demonstrate that the
reasons stated by the employer were pretextual. See Russell v.
Acme-Evans Co., 51 F.3d 64, 68 (7th Cir. 1995) (“Pretext . . . means a
lie, specifically a phony reason for some action.”). But, because we
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AFFIRMED.
conclude that Plaintiff “failed to present a prima facie case of
discrimination, [we] need not examine [Defendant’s] articulated
reasons for discharging [her], nor determine whether [those] reasons
were merely a pretext for discrimination . . . .” Hawkins v. Ceco
Corp., 883 F.2d 977, 985 (11th Cir. 1989). By the way, Plaintiff fails to
assert -- or to present evidence -- that the personnel committee did
not, in fact, believe that she had done the pertinent acts.
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