[PUBLISH]
IN THE U NITED STATES COU RT O F APPEALS
FOR TH E ELEVE NTH C IRCU IT FILED
U.S. COURT OF APPEALS
_____________________________ ELEVENTH CIRCUIT
MAY 14, 2003
No. 02-10861 THOMAS K. KAHN
CLERK
_____________________________
D. C. Docket No. 00-04912 CV-JLK
ALMA KNIGHT,
Plaintiff-Appellant,
versus
BAPTIST HO SPITAL OF M IAMI, INC .,
a Florida corp oration,
Defendant-Appellee.
_________________________________________
Appeal from the United Sta tes District Court
for the Southern District of Florida
_________________________________________
(May 14, 2003)
Before EDMON DSON, Chief Judge, ANDERSON, Circuit Judge, and POGUE*,
Judge.
*
Honorable Donald C. Pogue, Judge, United States Court of International Trade, sitting by
designation.
PER CURIAM:
In this Title VII racial discrimination case, Alma Knight appeals the district
court’s grant of summary judgment to her former employer, Baptist Hospital of
Miami, Inc. (B aptist). The district court co ncluded that K night failed to establish a
prima facie cas e. W e affirm.
BACKGROUND
In May 1 996, K night, an African-America n female, wa s hired by Ba ptist to
work as a clinical nurse in the surgical services department. She worked as a
Charge Nurse and had various responsibilities. Knight was supervised by Isabel
Hotchkiss (Nurse Ma nager) and Jessy Theisen (Assistant Nurse Ma nager).
Hotchkiss and Theisen were supervised by Michele Ryder the Assistant Director of
Surgical Services. Knight claims that Ryder often treated her with intolerance,
unfairness, and a lack of objectivity. Knight was employed by Baptist until her
termination on 23 May 2000.
Baptist utilizes a 4 -step disc iplinary process : (1) “informal discuss ion and
agreement, ” (2) “d iscussion and formal written agree ment,” (3) “ decision-mak ing
leave,” and (4) termination. Decision-making leave is a paid day of suspension for
2
the employee to decide whether the y want to c ontinue work ing for Baptist. D uring
decision-making leave, the employee is required to draft and to submit an “action
plan” tha t pro pos es a solution to the note d de ficiencies . If no “action plan” is
submitted, the employee must either resign or face termination.
Knight was given d ecision-making leave on 9 M ay 2000 . Knight’s de cision-
making leave aro se out of an incide nt where K night was rude and disres pectful to
two other employees: Patrice Hines and Doctor Wendy Whittick. Hines complained
to her supe rvisor, Ro bert Zaya s, abo ut Knight’s cond uct and then filed a c omplaint
with Ryder about the incident.
Ryder inves tigated the co mplaint. She then me t with Hotchk iss and The isen,
and they de cided to p lace Knight on de cision-making leave b ased o n the incident
and Knight’s “w ell documented disciplinary history.” This four-year history
included several performance issues: (1) failing to check refrigerator temperatures;
(2) failing to comply with latex-allergy procedures; (3) scheduling standby cases
without permission; (4) failing to send for patients in a timely manner; (5)
unnecess arily calling in staff; (6) on other occa sions, ac ting rudely and
disrespectfully toward coworkers; and (7) having substantial problems of
absente eism and tard iness. Knight ea rlier received formal counseling, the se cond
3
step in the dis ciplinary p rocess , for her tardiness and for unneces sarily calling in
staff.
Along with the decision-making leave, Knight was asked to submit an action
plan covering tw o problems : her tardiness a nd her unprofes sional and disre spectful
behavior. Fo llowing her decisio n-making le ave, on 11 M ay 2000 , Knight turned in
an action plan. Knight’s action p lan adequa tely addres sed her ta rdiness issue s but
did not mention her behavior problems. Knight was asked to turn in a second action
plan addressing this issue by 12 M ay. Knight missed this deadline.
Knight submitted her second action plan on 22 May. Ryder rejected this plan
as inadeq uate, be cause the “action p lan” was argumentative and propos ed no
solution. The p lan merely restate d Knight’s vers ion of the incident with Hines and
said that it was “petty.” On 23 M ay 2000, Knight’s employment was terminated.
Knight filed a grievance through Baptist’s grievance program. Her
termination was upheld. Knight then filed this lawsuit in the Southern District of
Florid a. S he alleged tha t she was the victim of dis parate trea tment and reta liation in
violation of Title VII of the Civil Right’s Act of 1964, 42 U .S.C. § 2000 (e) et seq.,
42 U.S.C . § 1981, and the Florida Civil Rights Act of 1992, Florida Statutes, §
760.10 (2 000). 1 Bap tist moved for summary judgment, arguing tha t Knight co uld
1
The retaliation claims are no issue in this appeal.
4
not estab lish a prima facie cas e of discrimination bec ause she could not identify a
similarly situated person from a different class w ho was trea ted more favorably. In
response, Knight pointed to Jean Arnold.
Arnold was a Caucasian nurse at Baptist. Knight claims that Arnold had
significant tardiness and behavioral problems but was not severely disciplined.
Arnold’s 1997 performance evaluation noted that “[o]n occasion, severe,
unproductive, and inappropriate exchanges occur with coworkers.” She was not
placed on decision-making leave, and her employment was not terminated.
The district c ourt concluded that A rnold and Knight we re no t simila rly
situated and granted Baptist’s motion for summary judgment.
DISCUSSION
Summary judgment is o nly appropriate where the re “is no ge nuine issue as to
any material fact and . . . the moving party is entitled to judgment as a matter of
law.” Fed. R . Civ. P. 56(c). W e review a district court’s grant of summary
judgment de novo. Pritchard v. Southern Co. Servs., 92 F.3d 11 30, 1132 (11th Cir.
1996). We view all the evidence, and make all reasonab le factual inferences, in the
5
light most favorable to the nonmoving party. Maniccia v. Brown, 171 F.3d 1364,
1367 (11th Cir. 1999).
The district c ourt granted Bap tist’ s motion fo r summary judgment bec ause it
determined that Knight failed to establish a prima facie case.2 Where direct
evidence o f discrimination is absent, a plaintiff establishes a c ircumstantial, prima
facie case of racial discrimination based on disparate treatment by showing several
things: “(1) [she] belongs to a racial minority; (2) [she] was subjected to adverse job
action; (3) [her] employer treated s imilarly situated employees o utside [her]
classification more favorably; and (4) [she] was qualified to do the job.” Holifie ld
v. Reno , 115 F.3 d 1555 , 1561 -62 (11th C ir. 1997)(c iting McDonnell Douglas Corp.
v. Green, 93 S.Ct. 1817 , 1824-25 (1973)).
For the purpose of the motion for summary judgment, Baptist concedes that
(1) Knight was a member of a racial minority; (2) she was subject to adverse
employment ac tions -- including being placed on a dec ision-making day and being
fired -- and (3) she was qualified for her job. Baptist argues, and the district court
2
The district co urt also granted summary judgment because, even if Knight could establish a
prima facie case, Knight could not show that Baptist’s non-discriminatory reasons for their actions
were pretextual. Because we agree that Knight has not shown a prima facie case, we affirm the grant
of summary judgment without discussing this issue.
6
concluded, that Knight cannot establish a prima facie case because she cannot show
that similarly situated employees of other races were trea ted better.
To show that employee s are similarly situated, the plaintiff must show that the
“employe es are s imilarly situated in all relevant respec ts . . . . In de termining
whether e mployees a re similarly situated . . . it is nec essary to consider w hether the
employees are involved in or acc used of the same o r similar conduct and are
disciplined in different ways.” Id. at 1562.
Knight argues that J ean Arnold w as a similarly situated C aucasian nurs e who
was tre ated more favorably. 3 Knight was placed on decision-making leave after a
review of her entire record. Knight claims that Arnold “committed similar, if not
more egregious , acts o f misconduct.” Desp ite Arnold’s a cts of miscond uct, Knight
points out that Arnold was not placed on decision-making leave.4
3
Knight also argues that the district court erred by requiring her to point to an identically situated
employee as opposed to a similarly situated employee. Knight claims that had the district court used
the proper standard it would have found Knight and Arnold to be similarly situated. While the district
court did say that Arnold’s record was not “nearly identical” to Knight’s, we do not believe that the
district court thought “identical” was the key or that the district court applied the wrong standard.
4
Knight alleges that she was subject to two adverse actions: she was placed on decision-making
leave, and her employment was terminated. We focus our inquiry on whether Knight and Arnold
were similarly situated in relation to the decision-making leave, that is, whether Arnold’s conduct was
substantially similar to the conduct that resulted in Knight’s decision-making leave. It is uncontested
that Knight’s termination was based on her failure to submit an acceptable action plan at the end of
her decision-making day. Knight points to no employees who were not terminated after they failed
to submit an acceptable action plan. Knight can establish a prima facie case based on her t ermination,
however, if the decision to give her a decision-making day was discriminatory: the termination, which
7
A review o f Knight’s and Arno ld’s cumulative rec ords reve als that the tw o
were not similarly situated. While their histories of problems with cow orkers are
similar, Arnold’s record is substantially better then Knight’s when it comes to job
performance and tardiness.
Both Arnold a nd Knight have do cumented histo ries of problems with
cowork ers. Knight’s history includes the incident involving Ms. H ines and Dr.
Whittick (which led to the decision-making leave) and two prior documented
instances of rude and disrespectful conduct. Arnold’s record includes two instances
where surgeons complained about her disrespectful attitude.5 While Arnold was
reprimanded after the instances, she was not placed on decision-making leave. Had
arose out of the decision-making day, would be improper as well.
5
Knight argues that Arnold’s history includes two additional incidents of rude and disrespectful
behavior that make Arnold’s record worse then hers. First, Knight complained that Arnold was rude
to her. The evidence, however, indicates that both Arnold and Knight made several complaints
against each other and that Ryder did not believe these complaints accurately reflected an actual
problem. Neither Knight nor Arnold was disciplined based on the complaints, and Arnold’s
complaints against Knight were not considered in the decision to give Knight decision-making leave.
Second, Knight says (and Arnold admitted in her deposition) that Arnold was kicked out of Dr.
Puente’s operating room on three or four occasions. But, no evidence exists that Dr. Puente ever
complained about these events to management. While Arnold’s “feud” with Dr. Puente might have
justified giving her a decision-making day, unless Ryder, Hotchkiss, or Theisen (Arnold and Knight’s
supervisors) knew of the events, the events cannot be considered in det ermining whether Knight and
Arnold are similarly situated. See Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1186
(11th Cir. 1984)(“[I]f an employer applies a rule differently to people it believes are differently
situated, no discriminatory intent has been shown.”(quoting Chescheir v. Liberty Mut. Ins. Co., 713
F.2d 1142, 1148 (5th Cir. 1983)). “Discrimination is about actual knowledge, and real intent, not
constructive knowledge and assumed intent.” Silvera v. Orange County Sch. Bd., 244 F.3d 1253,
1262 (11th Cir. 2001).
8
Knight’s decision-making leave been based solely on her behavioral problems,
Arnold might have been similarly situated. But Knight’s decision-making leave was
based on a review of her entire record, including her performance and tardiness
issues.
Knight’s history of performance problems is substantially worse than
Arnold’s. Knight’s four-year history includes documented instances of these things:
(1) failure to check refrigerator tempe ratures, (2 ) failure to comply with latex-a llergy
procedures, (3) scheduling standby cases without permission, (4) failure to send for
patients in a time ly manner, a nd (5) unneces sarily calling in staff.6 Arnold’s s even-
year history includes only one doc umented pe rformance issue : her failure to
document a problem with the blood refrigerator on 5 June 2000. Arnold was given
an Agreeme nt for Performance Improvement b ased o n this event and re quired to
write an action plan on the bottom of the Performance Improvement form. Arnold’s
performance history is substantially better than Knight’s.
6
Knight disputes that some of these events occurred. What is important is that these events were
documented in her record. Even if, as Knight claims, the events did not actually occur, they can be
considered if Ryder (the decision-maker) honestly believed they occurred. See Jones v. Gerwens, 874
F.2d 1534, 1540 (11th Cir. 1989) (“The law is clear that, even if a Title VII claimant did not in fact
commit the violation . . . an employer successfully rebuts any prima facie case of disparate treatment
by showing that it honestly believed the employee committed the violation.”).
9
Knight and Arnold’s problems w ith absenteeism and tardiness are very
different. While bo th had prob lems in this area, the ir problems w ere not of the s ame
nature. Arnold’s record indicates someone who had problems, but was improving.
Her record also indicates that she took on extra responsibilities to compensate for
some of her p roblems. K night’s problems progress ively worsene d, and d espite
counseling, she made little, if any, effort to comp ensate for he r problems. The
differences between Knight and Arnold are apparent from the performance
evaluations.
In December 1995, Arnold received a 1.747 in the Depe ndability/Reliability
category (where absenteeism and tardiness are reflected), and the evaluation
indicates that Arnold “agreed to come in on days off to help cover the department as
needed.” In January 1997, Arnold received a 3.13. In January 1999, she received a
3.2, and the evaluation as ked Arno ld to work on reducing her a bsence s and
reflected that she had 2 e xcused abs ences and 2 late days during the year. 8 In
January 2000, she received a 3.04, and the evaluation noted that, although she was
late 12 times, she worked extra on more than 26 occasions. Arnold’s absenteeism
7
The evaluations were graded on a four point scale, with 4.00 being “Exceeds Expectations;”
3.00 being “Fully Meets Expectations; 2.00 being “Minimally Meets Expectations;” 1.00 being “Does
Not Achieve Expectations.”
8
The record does not contain a January 1998 evaluation for Ms. Arnold.
10
and tardiness problems resurfaced in early 2000, and she was counseled because
she had been late 9 times and absent 4 times during a seven-month period. These
problems were also reflected in her 5 June 2000 Agreement for Performance
Improvement. While Arnold d id have prob lems with abs enteeism and tardiness, the
record does not indicate that her problems were nearly as severe as Knight’s.9
Knight’s reco rd is substa ntially less good. In he r 1997 e valuation, Knight
received a 2.9 2 in Dependa bility/Reliability. In 1998 this had fallen to 2.13. In
Octob er 1998 , Knight was counseled on her tardines s and told tha t she “ne eds to
come to work on time and have no more occurrences.” 10 Desp ite this warning,
Knight accumulated 16 occurrences (7 excused absences and 9 tardies) between her
1998 and 1999 evaluations and received a 1.73 on the 1999 evaluations. Knight’s
downw ard trend c ontinued; betw een her 19 99 and 2 000 eva luations she
accumulated 14 occurrences and she rece ived a 1.38 on the 2000 evaluation.
Nothing in the record indicates that Knight compensated for her absence or tardiness
by working extra hours at the hospital.
In the light of the entire record, Knight and Arnold are not similarly situated.
Knight’s documented performance and tardiness problems were much worse than
9
The record does not indicate how Arnold performed after receiving written counseling.
10
The term “occurrences” encompasses both excused absences and tardies.
11
Arnold’s in bo th number and na ture. Knight’s p roblems did no t improve after she
was co unseled and w arned in writing about them. Because Arnold and Knight are
not similarly situated, that A rnold was not also plac ed on de cision-making leave
creates no inference of discrimination against Knight. Knight has failed to establish
a prima facie case o f discrimination. The district court’s grant of summary
judgment is AFFIRMED.
AFFIRMED .
12
POG UE, J udge, diss enting:
In my view, the majority opinion’s discussion addressing the comparability of
Knight and Arnold’s job performance does not draw reasonable inferences in favor of
the plaintiff. See Reeves v. Sanderson Plumbing Products, Inc., 530 U .S. 133, 1 50-1
(2000). Drawing reasonable inferences in plaintiff’s favor, on the record here, a
reasonable jury could co nclud e tha t Ms. K night a nd M s. A rnold are similarly situated.
With regard to their documented histories of prob lems with cow orkers, the
majority appea rs to agre e tha t Ms. K night a nd M s. A rnold are similarly situated. T he
majority claims that the differences in their performance histories and records of
absenteeism and tard iness would preclude a reasonable fact-finder from finding them
comparable on the basis of their cumulative employment record as a whole.
With rega rd to their performance histories, however, because Arnold was given
an Agreement for Performance Improvement for the blood refrigerator incident (a
written disciplinary action), a reasona ble jury could conclude that the employer
considered that infraction to be more serious than the incidents documented in Knight’s
record (mere ora l reprimands).
With regard to absenteeism and tardines s, the rec ord indicates that both Knight
and Arnold were given an Agreement for Performance Improvement, a formal (written)
disciplinary action be cause o f their absente eism or tardines s. Acc ordingly, drawing
13
reasonable inferences in favor of the plaintiff, Knight and Arnold appear similarly
situated in this regard.
Acc ordingly, with regard to Knight’s and A rnold’s res pective emp loyment
records taken as a whole, the employer’s own progressive disciplinary system provides
a bas is to infer that K night a nd Arnold are similarly situated. The fact that Arnold had
twice previously bee n given an Agreeme nt for Performance Improvement, two formal
(written) disciplinary actions whereas the incident that led to Knight’s termination was
only her seco nd formal (written) discipline pro vides a rea sonable b asis for a jury to
conclude that Arnold’s historical record was at least as negative as Knight’s.
Conse quently, a reasonable jury could conclude that the defendant’s a ction with regard
to Knight’s problem with her coworkers (requiring an Agreement for Performance
Improvement and imposing a suspension or decision-making day) was not even-handed
when compared to its response to Arnold’s similar problems. Moreover, Knight’s 2000
evaluation, issued contemporaneously with the disciplinary action at issue here, rated
her performance overall as 3.3 9, more than “fully meets expectations.” Therefore, a
reasonable jury could find the employe r’s explana tion for its actions lack s credibility.
14