[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
APR 27, 2010
No. 09-14987 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-03157-CV-JEC-1
SHANTAL JOLLY-CASTELLO,
Plaintiff-Appellant,
versus
GWINNETT HEALTH SYSTEM,
CINDY WINTER,
MICHELLE PROBY,
In their individual capacity,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(April 27, 2010)
Before TJOFLAT, BIRCH and WILSON, Circuit Judges.
PER CURIAM:
Shantal Jolly-Castello (“Jolly-Castello”) appeals the district court’s grant of
Gwinnett Health System’s (GHS’) motion for summary judgment as to her
complaint filed pursuant to Title VII of the Civil Rights Act of 1964. On appeal,
Jolly-Castello argues that she alleged at least five reasons showing pretext, and she
contends that in reviewing each of those reasons, the district court took on the role
of the jury and resolved the disputed facts in favor of GHS. We AFFIRM the
district court’s grant of GHS’ motion for summary judgment.
I. BACKGROUND
Jolly-Castello brought this action against GHS alleging employment
discrimination through termination and retaliation based on her race (African-
American) and national origin (Jamaican), in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a).1 R1-10. The
complaint alleged that Jolly-Castello worked for GHS as a Diagnostic
Mammography Technician and was terminated because of her race and national
origin, and in retaliation, after GHS brought several alleged patient complaints to
Jolly-Castello’s attention. Id. at 2, 5, 7. Jolly-Castello requested back pay and
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The complaint was also brought against Cindy Winter and Michelle Salvemini-Proby in
their individual capacities but was dismissed without prejudice as to both of them for lack of
service. R4-74 at 1. Additionally, the complaint raised a disparate treatment claim that was later
abandoned. Id. at 43-44. Neither of these issues are raised in Jolly-Castello’s appeal.
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benefits, compensatory damages, punitive damages, injunctive relief, and
attorney’s fees. Id. at 9-10.
After discovery, GHS moved for summary judgment arguing inter alia that
Jolly-Castello failed to establish a prima facie case of discrimination because she
did not show that other employees outside her protected class were involved in
similar conduct but treated differently. R2-44 at 9-10. GHS stated that it
discharged Jolly-Castello because she received more complaints than any of her
counterparts, the complaints included injuries requiring subsequent medical
attention, and Jolly-Castello proved incapable of appreciating the severity of the
complaints. Id. at 14. Accordingly, GHS claimed that Jolly-Castello failed to
show pretext. Id. at 14-16. Finally, GHS argued that Jolly-Castello failed to
establish a prima facie case of retaliation because she did not show that there was a
connection between her participation in a protected activity and the adverse
employment decision, and again failed to establish pretext. Id. at 19, 22-24.
Jolly-Castello responded to GHS’ motion for summary judgment and argued
that GHS’ articulated nondiscriminatory reasons for terminating her were pretext
for unlawful discrimination because GHS failed to present any credible evidence
that she actually harmed any patient. R2-51 at 7-8. Specifically she claimed that
(1) mammograms were inherently painful; (2) GHS expected to get such routine
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complaints because of the equipment that was used, the hard surface on which the
breast must be placed, and the hard paddle that comes down on top of the breast to
flatten it; (3) a notice from the Food and Drug Administration (FDA) notifying
patients about a number to call in the instance of abuse was posted in each
mammogram examining room, and management received no complaints from the
FDA regarding Jolly-Castello; (4) the complaints against her did not mean she had
done anything wrong because they were stale and based on patients’ memories
without any corroborating medical evidence; and (5) each patient’s complaint had
problems that she alleged made them illegitimate or unbelievable. Id. at 16-18, 21-
33.
The magistrate judge recommended granting GHS’ motion for summary
judgment. R4-74 at 1. Regarding her discriminatory termination claim, the
magistrate judge found that Jolly-Castello failed to demonstrate that similarly
situated employees from outside her protected class were treated more favorably
because, while Jolly-Castello presented evidence of patient complaints made
regarding the mammograms performed by other mammography technicians, she
failed to present proof that those technicians inspired the same volume of
complaints or that the problems with those mammograms were of the same
severity as the complaints against her. Id. at 27-30. Accordingly, the magistrate
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judge found that Jolly-Castello failed to establish a prima facie case of
discrimination and recommended granting summary judgment for GHS as to Jolly-
Castello’s discriminatory termination claim. Id. at 30. The magistrate judge also
explained that even if Jolly-Castello had established a prima facie case of
discriminatory termination, the claim still would have failed because she did not
show that GHS’ legitimate, nondiscriminatory reason for terminating her - namely
that she inspired multiple patient complaints - was pretextual. Id. at 30-41.
Regarding Jolly-Castello’s retaliation claim, the magistrate judge
recommended granting summary judgment for GHS but did not address whether
Jolly-Castello established a prima facie case of retaliation. Id. at 41-43. Rather,
the magistrate judge stated that Jolly-Castello failed to raise a genuine issue of
material fact as to whether GHS’ legitimate, non-retaliatory rationale for her
termination was pretextual. Id. at 43.
Neither Jolly-Castello nor GHS objected to the magistrate judge’s report and
recommendation. The district court adopted the magistrate judge’s report and
recommendation and granted the defendant’s motion for summary judgment. R4-
76.
On appeal, Jolly-Castello argues that she alleged at least five reasons
showing pretext, and contends that in reviewing each of those reasons, the district
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court took on the role of the jury and resolved the disputed material facts in favor
of GHS. She specifically points out that it was the jury’s function to determine
whether the source of the patients’ pain came from the mammogram or from an
underlying health condition. She goes on to argue that whether the alleged
complaints against her should have been considered informal – and unlikely to
result in disciplinary action – or serious complaints – that required more follow-up
– was a factual question for the jury as was the credibility of the complaints.
II. DISCUSSION
We review a district court’s grant of summary judgment de novo. Thomas v.
Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007) (per curiam).
Summary judgment is appropriate when the evidence, viewed in the light most
favorable to the nonmoving party, presents no genuine issue of material fact and
compels judgment as a matter of law. Id.
A plaintiff may establish a discrimination claim under Title VII by direct or
circumstantial evidence. When the latter is relied on, we use the burden shifting
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.
Ct. 1817 (1973). See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th
Cir. 2004). “Under this framework, the plaintiff first has the burden of establishing
a prima facie case of discrimination, which creates a rebuttable presumption that
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the employer acted illegally.” Id.
Arguments not addressed in a party’s brief are abandoned, and we have the
authority to affirm the district court’s ruling on grounds other than those relied
upon by the district court. Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955,
970 n.32, 972 (11th Cir. 2008).
A. Discrimination Claim
Under the burden shifting framework of McDonnell Douglas, an employee
must first establish a prima facie case of discrimination before the burden shifts to
the employer to articulate legitimate, nondiscriminatory reasons for the
discrimination, after which the burden shifts back to the plaintiff to produce
evidence sufficient to allow a reasonable fact finder to conclude that the
employer’s reasons were pretextual. See Wilson, 376 F.3d at 1087. Jolly-
Castello’s brief fails to address the district court’s adverse ruling regarding her
prima facie case. Jolly-Castello does not argue on appeal that any similarly
situated employees outside of her protected class were treated more favorably.
Because establishing a prima facie case is required before the burden shifts to the
employer, and then back to Jolly-Castello to prove pretext, the arguments in her
brief regarding pretext are irrelevant. Jolly-Castello’s discrimination claim has
been abandoned. See Davis, 516 F.3d at 972.
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B. Retaliation Claim
Passing references to issues in an appellate brief are insufficient to raise a
claim for appeal. Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6
(11th Cir. 1989) (holding that mention of an issue in a brief’s Statement of the
Case was insufficient to preserve that issue for appellate review). In her brief’s
Nature of the Case section, Jolly-Castello states that the instant case is an action for
race, national origin, and retaliation discrimination; however, she neither makes
any arguments or statements alluding to retaliation throughout the remainder of her
brief, nor does she cite any law related to retaliation. Jolly-Castello abandoned her
claim of retaliation by failing to argue it in her initial brief. See id.; Davis, 516
F.3d at 970 n.32, 972.
III. CONCLUSION
Jolly-Castello appeals the district court’s grant of GHS’ motion for summary
judgment. As we have explained, Jolly-Castello has abandoned both her claim of
discrimination and retaliation on appeal. Accordingly, the summary judgment
granted by the district court is AFFIRMED.
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