[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
October 31, 2005
No. 05-10548 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 02-00609-CV-P-S
CAROLYN J. AMOS,
PEGGY A. SAUNDERS,
BRENDA GILBERT,
Plaintiffs-Appellants,
versus
TYSON FOODS, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(October 31, 2005)
Before BIRCH, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Carolyn J. Amos, Peggy A. Saunders, and Brenda Gilbert are female and
self-described “white American citizens,” who appeal the district court’s judgment
against them as to their claims of retaliation and discrimination raised pursuant to
Title VII of the Civil Rights Act of 1964. Although appellants argue that the
court’s order fails to address their claims, we disagree and find those claims to be
without support in law or fact. We AFFIRM.
I. BACKGROUND
Because employment discrimination cases are fact intensive, we include a
detailed recitation of the facts in this background section. First, we provide an
overview of the allegations. Second, because the case arises following summary
judgment, we summarize the facts in a light most favorable to the appellants.
Finally, we review the findings and order of the district court.
A. Overview
Amos and Saunders filed an action against Tyson, their employer, claiming
that they were discriminated against based on (1) national origin, in violation of
Title VII; (2) their age, in violation of the ADEA; (3) their gender, in violation of
Title VII; and (5) their age, in violation of state law. The also claim that they were
2
retaliated against, in violation of Title VII.
At the time the claims were filed, Amos and Saunders worked in the
sanitation department of Tyson’s chicken processing plant in Blount County,
Alabama, during the third shift, nightly from midnight to 8 A.M. Mary Miller,
who worked on the floor in a position called the “lead”, was immediately senior to
Amos and Saunders. The Tyson hierarchy, as it relates to this case, began with
Amos and Saunders’s direct supervisor, Theresa Johnson. Johnson reported to
Roni Noriega, who was the department superintendent. Two members of the
plant’s human resources department supervised the enforcement of Tyson’s
employment policies, as related to this case. Audrey Johnson was the second shift
human resources manager, and Jan Casey was the employment supervisor.
Amos and Saunders filed an amended complaint that added Brenda Gilbert
to the action. Gilbert asserted Title VII claims of (1) racial discrimination based
on national origin and (2) retaliatory discharge. Gilbert settled lawsuits against
Tyson for workers compensation, sexual harassment, and discrimination in 1999.
She alleged that as a result of these suits, she was targeted for harassment and,
ultimately, discharge.
Amos and Saunders argue that the district court erred in (1) finding that they
did not establish a prima facie case of discrimination based on national origin;
3
and (2) finding that they did not show that Tyson’s proffered reason for its action
was a pretext for discrimination. Gilbert contends that the district court erred in
finding that she did not produce evidence of a similarly situated employee who
was not terminated or that the proffered reason for her termination was not a
pretext for discrimination or retaliation.
B. Amos and Saunders’s Claims
According to their complaint, Amos and Saunders were in the women’s
restroom at Tyson’s Blount County facility when Roberto Maysonet, a Hispanic
male employee, entered the restroom, walked between the two women, and exited
a door on the other side. They claim that the light discipline received by Maysonet
following the bathroom incident is evidence of disparate treatment of persons of
different national origins. Amos and Saunders argue that they engaged in a
protected activity when they reported the bathroom incident through internal
grievance procedures; that they were subject to two separate disciplinary acts in
retaliation for reporting the restroom incident; and that Maysonet was placed in
their work area in retaliation. In addition to the bathroom incident, Amos and
Saunders complain that their removal from the pipe crew, an overtime opportunity,
was an adverse employment action and that the denial of new rain suits was
4
evidence of a pattern of national origin discrimination. The bathroom incident is
discussed first, followed by Amos and Saunders’s other grievances.
1. The Bathroom Incident
Amos stated in her deposition that Maysonet walked into the women’s
restroom while she and Saunders were changing in February 2001. Maysonet
walked through the restroom, “in no hurry,” was “gawking” at the two women,
and stopped briefly inside. Saunders testified that Maysonet taunted her with hand
motions. Amos indicated that this incident did not anger her, make her cry, or
cause her to miss work.
Immediately after the incident, Amos and Saunders went straight to their
supervisor’s office to report it. They reported to Noriega, Miller, and Teresa
Johnson that a man entered the women’s restroom while they were inside it. Amos
did not demand that Maysonet be terminated or seek any other disciplinary action.
Teresa Johnson acknowledged that Amos and Saunders said that a male
employee walked in the restroom while they were in it and that someone needed to
make sure people knew what their jobs were. Her understanding was that Amos
and Saunders were upset because the man who intruded upon them did not know
his job, not necessarily because he saw them undressed. She testified that she and
5
Noriega handled the situation and did not report the incident to human resources
because they did not think it was a case of sexual harassment. During the meeting,
Noriega said that Maysonet did not speak English and did not know any better.
Jan Casey learned about the restroom incident during unrelated
investigations into Amos’s behavior.1 Casey determined that Amos told Teresa
Johnson about the encounter in the restroom. Teresa Johnson was suspended for
five days because she had knowledge of the incident but failed to report it to the
human resources office.
Casey testified that Maysonet received a serious counseling statement as a
result of the investigation into the restroom incident. Although Maysonet
continued to work near Saunders and Amos, Casey did not receive any further
complaints regarding Maysonet. When Amos and Saunders told Miller that they
were uncomfortable working near Maysonet, he was moved away from the two
women, although he remained within the sanitation department. Miller said that
she did not believe that Amos and Saunders saw Maysonet again after this
remedial measure was taken.
1
Amos was informed that she was being placed on a three-day suspension “for calling a
team member a ‘bitch.’” R1-1 at 4. The next day, Audrey Johnson called Amos back to work
and told her that an investigation found no evidence of her alleged misconduct. She then handed
her a letter of reprimand concerning the incident and told her to destroy it. She was then handed
a reprimand letter that stated that “she had been observed wetting a team members with a hose
accidentally.” Id. at 5.
6
2. Other Alleged Discrimination
Amos and Saunders claimed three other categories of incidents were
evidence of discrimination based on national origin: (1) disparate treatment with
regard to assigning overtime; (2) disparate treatment with regard to the distribution
of rain suits; and (3) the fact that white employees had to pick up the slack for
non-English speaking employees. Saunders also alleges that a fan and drain in her
area were also not repaired out of retaliation for this suit.
Regarding the change in overtime availability, Tyson appears to have been
advancing general cost cutting measures by assigning more tasks to workers
during their regular shifts in order to reduce the need for overtime workers. Tyson
explicitly instructed its managers to reduce overtime hours. This overall reduction
in overtime affected more Hispanic workers than American ones, because 75
percent of the second shift workforce is Hispanic. However, at least one non-
Hispanic worker continued to receive overtime.
Although Amos and Saunders allege that they were discriminated against in
the distribution of new rain suits, their supervisor, Teresa Johnson, testified that
she did not remember them complaining to her about not receiving rain suits.
Amos and Saunders also complain that non-English speaking employees are not
7
selected for extra-duties; however, this issue is not pursued on appeal.2
C. Gilbert’s Claims
Brenda Gilbert is also an employee at the Blount County Tyson Foods plant.
She claims that Tyson selectively follows its workplace violence policy in a
manner that retaliated against her for prior employment discrimination suits
against the company and in a manner that discriminates based on national origin.
Gilbert admits to the facts that led Tyson to end her employment, based on the
work place violence policy, but argues that similar facts did not result in
termination in other cases.
During a conversation with her supervisor regarding an extension to her
vacation, Gilbert said she “would kill her roommate.” R1-20 at 5. Her roommate
was Chirell Jones, also a Tyson employee. Gilbert’s supervisor, Tommie Harris,
taking Gilbert’s statement as a serious threat, replied, “[Y]ou can’t do that,” to
which Gilbert said, “I’m not, I’m just mad, I want my stuff back.” Id.
When Gilbert reported back to Tyson, she was told to proceed directly to the
office and was accompanied by a security guard. At the office, Jan Casey and
2
Issues not raised on appeal are considered abandoned. Greenbriar, Ltd. v. City of
Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).
8
Audrey Johnson told her that she was being suspended for her threat to kill Jones.
Gilbert was terminated on 3 April 2002, for violating Tyson’s workplace violence
policy.
Tyson terminates employees who violate the workplace violence policy.
After receiving notice of the threat, Casey consulted with the corporate office.
Casey interviewed Jones, who was concerned that Gilbert might kill her. Audrey
Johnson spoke with Jones the night of the threat and found her to be upset.
Reviewing the history of the policy, Casey noted that Juan Vargas, a
Hispanic male employee who threatened to kill a co-worker, was terminated.
Another investigation, which involved Gilbert as the victim, revealed that a
Hispanic male worker named “Torres” nudged or tapped Gilbert but that he did
not forcefully strike her. Nonetheless, Torres was discharged for this conduct.
Casey does not know of any employees who were disciplined but not terminated
for violating this policy. Gilbert discusses two incidents that she claims prove
otherwise.
First, Gilbert claimed that Lydia Wilson, a Hispanic employee, threatened
another worker with a knife on the processing floor and that she heard from other
workers that Wilson and the employee she threatened fought in the restroom later
that day. Because the allegedly threatening behavior occurred in Spanish, Gilbert
9
did not understand what was being said. An investigation of these allegations
revealed conflicting reports that precluded action under the workplace violence
policy.
Second, Gilbert claimed that Jones attacked her and should have been
disciplined under the workplace violence policy. She claimed that Joey Broom, a
superintendent, witnessed the altercation and threatened to terminate one or both
of them if it happened again. Broom says he never saw the women arguing at
work and never counseled them for fighting. Casey stated that, during the course
of her investigation, Broom admitted that he once separated Gilbert and Jones
during an argument, but did not witness them resorting to violence. Although
these reports disagree on some details, they agree that no violence occurred
between the two women.
D. The District Court’s Decision
The court granted Tyson’s motion for summary judgment. Reviewing the
bathroom incident, the court found that Amos and Saunders did not report the 16
February 2001 bathroom incident to human resources until their 14 March 2001
meeting with Jan Casey. The court treated the bathroom incident as a sexual
harassment claim and found that Amos and Saunders (1) did not put forth
10
evidence of conduct that was physically menacing or demeaning; (2) did not put
forth evidence that the conduct unreasonably interfered with their job
performance; and (3) did not establish that the conduct was sufficiently severe as
to be actionable. Further, the court found that Tyson took immediate and
appropriate corrective action.
With regard to their disparate treatment and retaliation claims, the court
found that neither Amos nor Saunders suffered any actionable adverse
employment action. The court concluded that Amos and Saunders did not engage
in a protected activity because they could not have believed that one incident of a
male employee in a women’s restroom would create a hostile work environment.
Further, the district court concluded that they were unable to show retaliation
because there was no causal connection between their report and some adverse
action. It noted that Amos could not show any employer, who knew about her
prior complaints, punished her, and Saunders could not point to anything that
happened to her after the incident in the restroom. Additionally, Amos and
Saunders did not show that the reasons Tyson proffered for their actions were a
pretext for discrimination.
Regarding Gilbert’s retaliation claim, the court found that Gilbert could not
establish a causal connection between the alleged retaliatory acts and her
11
termination, as nearly four years passed between the protected activity and the
adverse action. Further, the court determined that she had not shown similarly
situated persons who were treated more favorably as (1) she did not report Jones’s
threat when it occurred, (2) there was no evidence that Torres made discrimination
complaints, and he was discharged, and (3) Gilbert introduced no admissible
evidence as to whether Wilson had ever threatened another coworker. Further,
even if she could establish a prima facie case, she was unable to challenge Tyson’s
legitimate, nondiscriminatory reason for her discharge, as Gilbert admitted that she
threatened to kill Jones.
II. DISCUSSION
We review “a grant of summary judgment de novo, using the same legal
standard as the district court.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1184
(11th Cir. 1997). Summary judgment is proper if the pleadings, depositions, and
affidavits show that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986) (citing Federal Rule of Civil
Procedure 56(c)). The evidence, and all inferences drawn from the facts, must be
viewed in the light most favorable to the nonmoving party. Matsushita Elec.
12
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356
(1986). In order to defeat summary judgment, however, the nonmoving party
“must do more than simply show that there is some metaphysical doubt as to the
material facts.” Id. at 586, 106 S. Ct. at 1356. The nonmoving party must make a
sufficient showing on each essential element of the case for which she has the
burden of proof. Celotex, 477 U.S. at 323, 106 S. Ct. at 2552.
Further, issues not raised on appeal are deemed abandoned. See Greenbriar,
Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989). Amos and
Saunders therefore retain only their claims for overtime based on national origin
discrimination3 and their claims of retaliation for reporting the bathroom incident.
Gilbert challenges only the denial of her retaliation claim.4
A. Amos and Saunders’s Claims
3
From the outset, all of the disparate treatment claims presented may have failed to
exhaust the administrative remedies provided by the EEOC. The first count of both the original
and amended complaint alleges “racial discrimination based on national origin.” Because the
claims fail on the merits, we need not decide whether failure to allege discrimination based on
race in the EEOC complaint would have required dismissal in the first instance for failure to
exhaust administrative remedies. But see Sanchez v. Standard Brands, Inc., 431 F.2d 455,
462–64 (5th Cir. 1970).
4
Amos, Saunders, and Gilbert argue that the district court did not address all of the
claims they asserted in the order for summary judgment. We disagree with appellants that the
court did not address their claims. However, we may still affirm that decision if summary
judgment was appropriate. See Rowe, 139 F.3d at 1382 n.2.
13
1. Disparate Treatment
Amos and Saunders argue that the district court erred in granting Tyson’s
motion for summary judgment on their claims of national origin discrimination.
They assert that Tyson discriminated against them as Americans by treating
Hispanic employees more favorably when disbursing supplies, assigning jobs, and
awarding overtime. Title VII states, in relevant part, that it is “an unlawful
employment practice for an employer . . . to discharge any individual . . . because
of such individual’s race . . . or national origin.” 42 U.S.C. § 2000e-2(a). A
plaintiff may prove a claim of discrimination through (1) direct evidence, (2)
circumstantial evidence, or (3) statistical proof. See Earley v. Champion Int’l
Corp., 907 F.2d 1077, 1081 (11th Cir. 1990).
Because appellants rely on circumstantial evidence, we use the
burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S. Ct. 1817 (1973), and Texas Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 101 S. Ct. 1089 (1981), for their national origin claims. See Chapman v.
AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (discussing an ADEA claim).
Under the McDonnell Douglas/Burdine framework, the claimant must first show
an inference of discriminatory intent, and thus carries the initial burden of
establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at
14
802, 93 S. Ct. at 1824. Once the plaintiff establishes a prima facie case, the
burden shifts to the defendant to “articulate some legitimate, nondiscriminatory
reason” for the employment action. Id., 93 S. Ct. at 1824. If the defendant is able
to meet its burden, the plaintiff must then show that the proffered reason is merely
a pretext for discrimination. Burdine, 450 U.S. at 256, 101 S. Ct. 1095.
To succeed with their disparate treatment claim, appellants had to show that:
(1) they were members of a protected class; (2) they were subjected to adverse job
action; (3) they were qualified to do the job; and (4) they were treated less
favorably than a similarly situated individual outside their protected class. See
Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003) (per
curiam).
Plaintiffs must establish that they suffered an adverse employment action.
See Davis v. Town of Lake Park, 245 F.3d 1232, 1238 (11th Cir. 2001). However,
not all conduct by an employer negatively affecting an employee constitutes an
adverse employment action. Id. Instead, “an employee must show a serious and
material change in the terms, conditions, or privileges of employment. . . . [T]he
employee’s subjective view of the significance and adversity of the employer’s
action is not controlling; the employment action must be materially adverse as
viewed by a reasonable person in the circumstances.” Id. at 1239.
15
Once a prima facie case is established, the employer has an opportunity to
articulate a legitimate, nondiscriminatory reason for the challenged employment
action. Jackson v. Alabama State Tenure Comm’n, 405 F.3d 1276, 1289 (11th
Cir. 2005). To show the proffered reason was merely a pretext, plaintiffs must
demonstrate that the proffered reason was not the true reason for the
employment decision . . . [The plaintiff] may succeed in this either
directly by persuading the court that a discriminatory reason more
likely motivated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.
Id. (quotations and citations omitted). “[T]o avoid summary judgment [the
plaintiff] must introduce significantly probative evidence showing that the
asserted reason is merely a pretext for discrimination.” Clark v. Coats & Clark,
Inc., 990 F.2d 1217, 1228 (11th Cir. 1993) (citation omitted). A reason is not
“pretext for discrimination unless it is shown both that the reason was false, and
that discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 515, 113 S. Ct. 2742, 2752 (1993) (emphasis removed).
Upon review of the record and consideration of the parties’ briefs, we find
no reversible error. Assuming that Amos and Saunders belong to the protected
class of Americans, aspects of their claim fail to allege adverse employment
action. Although there are no hard and fast rules regarding the maintenance of
workplace conditions, Title VII does not provide a remedy for the “ordinary
16
tribulations of the workplace.” See Gupta v. Florida Bd. of Regents, 212 F.3d
571, 587 (11th Cir. 2000). Although it might be possible for some level of
discrimination regarding working conditions to rise to an actionable level, the
facts of this case—alleging plugged drains and the slow filling of requests for new
rain suits—fall short of an adverse employment action.
Tyson’s reductions in overtime, however, withheld a financial benefit from
Amos and Saunders. Discriminatory alterations of financial benefits may qualify
as adverse employment actions. See Bass v. Board of County Commr’s, 256 F.3d
1095, 1118 (11th Cir. 2001). The evidence shows, however, that more Hispanic
workers were affected by the cuts in overtime than American workers.
Accordingly, Amos and Saunders cannot show similarly situated employees
outside their protected class who were being treated differently from them.5
Therefore, the claim for discriminatory awards of overtime fails the fourth prong
of the Knight requirements.
Furthermore, Tyson’s reason for altering the overtime schedule was to
reduce costs. The evidence revealed that there was a general need to cut overtime
throughout the plant driven by legitimate business reasons. This was
5
In fact, the record shows that at least one member inside the class of non-Hispanics
continued with overtime work, so there was not even discrimination against the purported class.
17
accomplished by assigning the tasks to workers during their regular shifts and
using fewer overtime workers. This reason is both legitimate and
nondiscriminatory with regard to national origin. Amos and Saunders have put
forth no evidence to show the reason was false, let alone a pretext for
discrimination.6 Because Amos and Saunders have failed in their burden to
establish a prima facie case and to rebut the reason offered by the company for its
action, we agree that Amos and Saunders’s claim must be denied.
2. Retaliation
Amos and Saunders next argue that the district court erred in granting
Tyson’s motion for summary judgment on their retaliation claim. They assert that
Tyson, among other things, cut their overtime and caused illegitimate punitive
reports to be filed in response to their reporting of Roberto Maysonet. We,
however, find no error.
Title VII prohibits retaliation in the employment arena:
It shall be an unlawful employment practice for an employer to
6
Amos, Saunders, and Gilbert argue that the Supreme Court’s decision in Desert Palace,
Inc. v. Costa, 539 U.S. 90, 123 S. Ct. 2148 (2003), precludes summary judgment because mixed
motive cases necessarily involve jury questions. Because they have not alleged any fact that
would entitle them to a mixed motive jury instruction, we find this contention without merit. See
also Pulliam v. Tallapoosa County Jail, 185 F.3d 1182, 1186 (11th Cir. 1999) (observing that the
defendant may choose not to make a mixed-motive defense).
18
discriminate against any of his employees . . . because he has
opposed any practice made an unlawful employment practice by
this subchapter, or because he has made a charge, testified,
assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.
42 U.S.C. § 2000e-3(a). To prevail on a claim of retaliation under Title VII, a
plaintiff must establish three elements by a preponderance of the evidence: (1) that
the plaintiff engaged in an activity protected under Title VII, (2) that she suffered
an adverse employment action, and (3) that there was a causal connection between
the protected activity and the adverse employment action. Gupta, 212 F.3d at 587.
Internal reporting procedures advanced in furtherance of the goals of Title
VII are protected under the statute. See Pipkins v. City of Temple Terrace, 267
F.3d 1197, 1201 (11th Cir. 2001). Reports, however, must involve a good faith
belief of unlawful discrimination. See Tipton v. Canadian Imperial Bank of
Commerce, 872 F.2 1491, 1494 (11th Cir. 1989). The test has both a subjective
and objective component. Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385,
1388 (11th Cir. 1998). Thus, although a plaintiff need not prove actual sexual
harassment, “it must be close enough to support an objectively reasonable belief
that [the complained of conduct is in fact sexual harassment.]” Clover v. Total
Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th Cir. 1999).
Here, on the other hand, Amos and Saunders initially reported the bathroom
19
incident because they were upset that Maysonet did not know his job, not because
they were seen undressed. Amos and Saunders therefore lacked the subjective
belief that they were sexually harassed. In addition, the district court found that
Amos and Saunders could not have believed that the single instance of a male
entering their changing room constituted sexual harassment. We agree that this
single instance would not entitle Amos and Saunders to an objectively reasonable
belief that they had been sexually harassed.
Furthermore, even if Amos and Saunders could show that the reduction in
overtime was related to their reporting of Maysonet, they cannot establish that the
reason proffered for the reduction in overtime—to reduce operating costs—was a
pretext for discrimination, as discussed in the previous section. Because Amos
and Saunders failed to introduce any evidence that the legitimate reason for
cutting costs was a pretext for discrimination, they have failed in a burden
necessary to defeat the motion for summary judgment. See Clark, 990 F.2d at
1228.
B. Gilbert’s Discharge Claims
Gilbert argues that the district court erred in granting Tyson’s motion for
summary judgment on both her claims of discrimination and retaliation. Gilbert
20
asserts that Tyson terminated her out of retaliation for her prior suits against the
company. Further, she claims that she was discriminated against because, though
she had threatened to kill her roommate and fellow Tyson employee, Chirell Jones,
other Hispanic employees had made similar threats and were not terminated.
1. Retaliatory Discharge
With regard to her retaliation claims, it is undisputed that Gilbert’s suits
against Tyson were protected activity under Title VII and that she suffered an
adverse employment action when she was terminated. However, there must still
be a causal connection between the adverse action and the protected expression.
See Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1524 (11th Cir. 1991). The
Supreme Court requires the temporal connection in such circumstances to be “very
close.” Clark County School Dist. v. Breeden, 532 U.S. 268, 273–74, 121 S. Ct.
1508, 1511 (2001) (per curiam) (concluding that twenty months was not
connected); see also Wascura v. City of S. Miami, 257 F.3d 1238, 1248 (11th Cir.
2001) (rejecting a FMLA retaliation claim because three and a half months was
too long to find a retaliatory connection). We agree that the 33 month lapse
between Gilbert’s first settlement and her termination suggests the two events are
unrelated.
21
2. Discriminatory Discharge
To succeed with her discriminatory discharge claim, Gilbert had to show
that: (1) she was a member of a protected class; (2) she was qualified for the job
from which she was discharged; (3) she was discharged; and (4) she was treated
less favorably than a similarly situated individual outside her protected class or her
former position was filled by someone outside the class. Maynard v. Board of
Regents, 342 F.3d 1281, 1289 (11th Cir. 2003).
“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.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (per
curiam). “The most important factors in the disciplinary context . . . are the nature
of the offenses committed and the nature of the punishment imposed.” Silvera v.
Orange County School Bd., 244 F.3d 1253, 1259 (11th Cir. 2001) (internal
citation omitted). “In order to satisfy the similar offenses prong, the comparator’s
misconduct must be nearly identical to the plaintiff's in order to prevent courts
from second guessing employers’ reasonable decisions.” Id. at 1259 (internal
quotation and citations omitted). Employees are not “similarly situated” if
management is aware of one’s improper conduct, but not aware of the others’
22
conduct. See Bogle v. Orange County Bd. of County Comm’rs, 162 F.3d 653,
658–59 (11th Cir. 1998) (an employee who may have broken a rule but was not
caught was not similarly situated to one who had been caught); see also Abel v.
Dubberly, 210 F.3d 1334, 1339 (11th Cir. 2000) (per curiam) (an employee who
admitted to improper conduct was not similarly situated to one who did not).
Summary judgment is appropriate if the plaintiff fails to show the existence of a
similarly situated employee, and no other evidence of discrimination is present.
Holifield, 115 F.3d at 1562.
The undisputed evidence showed that Gilbert, claiming national origin
discrimination based on her American national origin, was fired and was qualified
for the position she held. Gilbert, however, did not offer evidence that there were
other Hispanic employees who had a similar history of threatening conduct, that
was known to Tyson management, who were retained. Casey discussed two
instances—Vargas and Torres7—where the policy was implemented and the
employees released.
Gilbert alleges two incidents to prove her case. The first incident, where
she was the victim, is inapposite, because—even if true—there would be no
7
Torres was dismissed for workplace violence prior to the establishment of the current
policy.
23
national origin discrimination because there is no evidence in the record that Jones
is Hispanic. Further, whereas Jones’s alleged violation of the policy was neither
documented nor admitted, Gilbert’s violation of the policy was documented, and
Gilbert admitted to making the threatening statement. These two distinctions
condemn Gilbert’s use of Jones as a comparator. See Bogle, 162 F.3d at 658–59
(11th Cir. 1998); Abel, 210 F.3d at 1339.
Gilbert’s second example is Lydia Wilson. The evidence of workplace
violence by Wilson is limited to Gilbert’s allegations, as none of the supervisors at
Tyson admit knowledge of the incident. Gilbert, however, did not personally
witness anything that substantiates her position, relying entirely on the statements
of other workers.8 Such testimony is insufficient as a matter of law to establish a
comparator for purposes of analyzing a retaliation claim. See Bogle, 162 F.3d at
658–59 (rejecting plaintiff’s “unverifiable, anecdotal testimony” about alleged
comparators where “witnesses who testified regarding these other incidents had no
personal knowledge”); Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1135 (11th
Cir. 1996) (rejecting plaintiff’s testimony “based on the statements of unknown
8
Gilbert saw the first conversation, which took place on the line, but did not understand
the Spanish spoken by Wilson. Gilbert merely heard about the subsequent events that allegedly
occurred in the bathroom. No disciplinary record exists to supplement Gilbert’s allegations, and
Gilbert has not produced a coworker to corroborate her version of the events.
24
coworkers”). Furthermore, as Wilson was neither caught in nor admitted to any
violation of the workplace violence policy, she cannot serve as a comparator for
the reasons listed previously regarding Jones. See Bogle, 162 F.3d at 658–59;
Abel, 210 F.3d at 1339.
Finally, if actions that would violate a company policy are not brought to
the attention of the company, then that evidence would not be useful in proving
whether the company unlawfully discriminated in the application of its policies.
Because there is no admissible evidence that Tyson management knew of the
Wilson incident, they did not have the opportunity to implement their policy.
Gilbert alleges no situation where Tyson knew of a workplace policy violation and
applied its policies in a discriminatory manner. As such, her claim for retaliatory
discrimination must fail.
3. Nonretaliatory Rationale
Once a prima facie case is established, the defendant may proffer a
legitimate, nonretaliatory reason for the challenged action and the plaintiffs must
put forth evidence showing that the reason is only a pretext for retaliation as noted
above. “Provided that the proffered reason is one that might motivate a reasonable
employer, an employee must meet that reason head on and rebut it, and the
25
employee cannot succeed by simply quarreling with the wisdom of that reason.”
Chapman, 229 F.3d at 1030.
Tyson’s proffered reason—that Gilbert had violated the workplace
violence policy by threatening to kill Jones—is neutral as to national origin and
Gilbert’s prior litigation. Gilbert cannot rebut the proffered reason by simply
quarreling with it.9 Because Gilbert does not even address how the policy of
dismissing employees who threaten violence is discriminatory, she has failed in
her burden to rebut Tyson’s nonretaliatory reason for firing her.
III. CONCLUSION
Amos, Saunders, and Gilbert’s employment discrimination claims are
without merit, and Tyson’s disciplinary policies and procedures were followed in a
nondiscriminatory manner. The district court properly granted summary judgment
in favor of Tyson Foods. Accordingly, we AFFIRM.
9
Gilbert argues that Tyson cannot use its workplace violence policy against her because
she was not physically at work when she made the threatening statement to a Tyson employee. It
is not our place to second guess either the elements of Tyson’s policy regarding workplace
violence or when those elements are met. Gilbert does not contest the soundness of a policy
against workplace violence, and, therefore, she has not met her burden of rebutting Tyson’s
legitimate action in implementation of the policy.
26
Carolyn J. Amos v. Tyson Foods, Inc.
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2005-10-31
Citations: 153 F. App'x 637
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