Nancy Rojas v. State of Florida

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
------------------------------------------- MARCH 22, 2002
No. 01-11070 THOMAS K. KAHN
-------------------------------------------- CLERK
D. C. Docket No. 99-02875 CV-SH

NANCY ROJAS,

Plaintiff-Appellant,
versus

STATE OF FLORIDA,
Dept. of Business & Professional
Regulations Pari-Mutual,

Defendant-Appellee.

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Appeal from the United States District Court
for the Southern District of Florida
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(March 22, 2002)

Before EDMONDSON and CARNES, Circuit Judges, and MUSGRAVE*, Judge.

_________________
C Honorable R. Kenton Musgrave, Judge, U.S. Court of International Trade, sitting by
designation.
PER CURIAM:

Appellant Nancy Rojas filed a multi-count lawsuit against the state of

Florida alleging (among other things) various violations of Title VII:

discriminatory discharge on the basis of sex, hostile work environment, and

retaliation for complaining about discriminatory treatment and sex-based pay

disparities.1 The district court granted Florida’s motion for summary judgment.

We affirm.

BACKGROUND

Rojas was hired by the Florida Department of Business and Professional

Regulation’s Pari-Mutuel division in November 1993. The department oversees

and regulates greyhound racing in Florida. She was hired as a Veterinary Assistant

and was promoted to Chief Veterinary Assistant in 1994. When Rojas was first

hired, the position of Chief Inspector -- Rojas’s immediate supervisor -- was held

by Elizabeth Landon Lane. In August 1996, Lane was replaced by Enrique

Beguiristain.

1
Rojas also brought a Title VII wage discrimination claim. Although the district court also
granted summary judgment to Florida on this question, Rojas does not challenge that determination
in this appeal.

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 Veterinary Assistants and the Chief Veterinary Assistant are responsible for

testing the greyhounds after their races. Their jobs consist chiefly of taking urine

samples from the dogs, preparing those samples for shipment to a testing lab, and

completing different forms. The Chief Veterinary Assistant has supervisory

responsibilities over this process.

Until Beguiristain became Chief Inspector, Rojas’s supervisors expressed no

major problems with Rojas’s work. Lane testified that Rojas’s work was

“exemplary” and that Rojas was one of the best employees she had ever had.

There are, however, some indicators of problems even during this time: missed

work dates, tardiness, and problems with filling out the forms for sample testing

and mailing the samples.

Beguiristain was not satisfied with Rojas’s work. After he came on, a memo

was sent to all Veterinary Assistants and Chief Veterinary Assistants about the

importance of following the proper policies for reporting to and from work and for

tardiness and absences. Several memoranda from Beguiristain to his supervisors

report Rojas’s purported failure to comply with these policies. Rojas does not

contest that she was absent or tardy on many occasions between the time

Beguiristain became Chief Inspector and the time she was fired. She does assert

that Beguiristain assured her that the tardiness and absences were not considered

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serious problems. The record contains evidence indicating other unsatisfactory

performance on Rojas’s part. A letter from a Division Judge reports Rojas’s failure

to follow proper procedures for taking and recording samples. In addition, many

reports from the testing lab indicate problems with the samples and the

accompanying forms.

DISCUSSION

A district court’s grant of summary judgment is reviewed de novo. See

Witter v. Delta Airlines, Inc., 138 F.3d 1366, 1369 (11th Cir. 1998). “Summary

judgment is appropriate if the record shows no genuine issue of material fact and

that the moving party is entitled to judgment as a matter of law. When deciding

whether summary judgment is appropriate, all evidence and reasonable factual

inferences drawn therefrom are reviewed in a light most favorable to the

non-moving party.” Id. (citations and quotations omitted).

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I. Retaliation and Discriminatory Discharge

Rojas claims that she was fired from her position as Chief Veterinary

Assistant because of her sex and in retaliation for complaining about a sex-based

disparity in pay. Because Rojas has presented only circumstantial evidence of

discrimination, we will analyze her claims under the familiar McDonnell Douglas

framework.2 See McDonnell Douglas Corp. v. Green, 93 S. Ct. 1817 (1973). We

will assume, without deciding, that Rojas can establish a prima facie case of

unlawful discrimination and retaliation. Once the prima facie case is established,

the burden shifts to the defendant to present a legitimate, nondiscriminatory reason

for its act. See id. at 1824. Florida has offered several reasons for firing Rojas:

poor work performance, failure to follow department procedures, tardiness, and

turning over her work as supervisor to subordinates.

Because Florida has met its burden of presenting a legitimate,

nondiscriminatory reason for its act, Rojas bears the burden of showing that the

2
Rojas’s claim that this case is a direct evidence case is without merit. “Direct evidence of
discrimination is evidence, that, if believed, proves the existence of a fact in issue without inference
or presumption. As our precedent illustrates, direct evidence is composed of only the most blatant
remarks, whose intent could be nothing other than to discriminate on the basis of some
impermissible factor.” Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999) (citations and
quotations omitted).

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reasons offered were merely pretext. See id. at 1825. Rojas asserts that she is in

fact a good employee and that Beguiristain fabricated evidence indicating that she

was not a good employee to conceal his discriminatory motive.

In analyzing claims like Rojas’s, we must be careful not to allow Title VII

plaintiffs simply to litigate whether they are, in fact, good employees. The factual

issue to be resolved is not the wisdom or accuracy of Florida’s conclusion that

Rojas was an unsatisfactory employee. We are not interested in whether the

conclusion is a correct one, but whether it is an honest one. Like all Title VII cases

where pretext is an issue, the question the factfinder must answer is whether

Florida’s proffered reasons were “a coverup for a . . . discriminatory decision.”

McDonnell Douglas, 93 S. Ct. at 1826. “We are not in the business of adjudging

whether employment decisions are prudent or fair. Instead, our sole concern is

whether unlawful discriminatory animus motivates a challenged employment

decision.” Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361

(11th Cir. 1999).

Rojas’s evidence of pretext is insufficient to allow her to take her case to a

jury. Rojas only presents one piece of evidence that is arguably persuasive in

establishing pretext: a comment made by Beguiristain to Lane -- not to Rojas or

about Rojas -- that Lane did not deserve her job (a higher-ranking and different job

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than the job Rojas held) because Lane was a woman.3 Remarks such as this one --

isolated and unrelated to the challenged employment decision -- are not direct

evidence of discrimination. See Schoenfeld, 168 F.3d at 1266. We have said,

however, that such comments can contribute to a circumstantial case for pretext.

In Ross v. Rhodes Furniture, Inc., 146 F.3d 1286 (1998), we determined that

potentially discriminatory comments that were not directly related to the

employment decision could contribute to a circumstantial showing of

discriminatory intent. See id. at 1291. The facts of Ross, however, are clearly

distinguishable. In Ross, fairly strong additional evidence supported a finding of

pretext (specifically, that the supervisor who had fired plaintiff had been engaged

in the same activity for which plaintiff was fired). But no such additional evidence

exists here. The Ross court, in fact, explicitly noted that the evidence relating to

the discriminatory comments had to be “read in conjunction with the entire record”

and “considered together with” the other evidence in the case. See id. at 1291-92.

Because Beguiristain’s alleged comment was (looking at the admissible evidence

3
Rojas also attempts to present testimony that a coworker, Curtis Harris, told Rojas that
Beguiristain told Harris that Harris did not have to listen to Rojas because she was a woman. This
testimony, however, is inadmissible hearsay. See, e.g. Zaben v. Air Prods. and Chems., Inc., 129
F.3d 1453, 1455-57 (11th Cir. 1997) (comments by low-level supervisors repeating management’s
discriminatory comments are inadmissible hearsay).

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before the district court) an isolated comment, unrelated to the decision to fire

Rojas, it, alone, is insufficient to establish a material fact on pretext.

Rojas has also presented evidence that her supervisors before Beguiristain

praised her work: Elizabeth Landon Lane testified in her deposition that Rojas had

been one of the best Chief Veterinary Assistants she had ever had. These

differences in the evaluation of Rojas’s performance do not establish a genuine

issue on pretext. Different supervisors may impose different standards of behavior,

and a new supervisor may decide to enforce policies that a previous supervisor did

not consider important. Cf. Jones v. Gerwens, 874 F.2d 1534, 1542 n.15 (11th Cir.

1989). Nothing in the record indicates that Beguiristain singled out Rojas for

increased enforcement of departmental regulations. On the contrary, Beguiristain

circulated a memo to all of his subordinates about the importance of following the

department’s procedures. In addition, Bryan Lawrence -- a man -- was fired from

his position as Veterinary Assistant for his failure to follow workplace procedures.

In Damon, we did consider it to be circumstantial evidence of discrimination

where employees with good employment histories suddenly began receiving poor

evaluations when a new supervisor came on. See Damon, 196 F.3d at 1361. In

that case, however, the factual basis for the poor evaluation was in dispute. See id.

at 1363 (defense that employee was fired for violation of work rules “is arguably

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pretextual when a plaintiff submits evidence . . . that she did not violate the cited

work rule”).

In this case, there is no doubt that problems did, in fact, exist with Rojas’s

work. Objective evidence exists, from sources besides Beguiristain, supporting

Florida’s proffered reasons: the discrepancy reports and other complaints from the

testing lab, and reports from other people employed by the department of Rojas

failing to do her work properly. Moreover, although Rojas contends that she had

valid excuses for her absences and tardiness, she does not dispute that she was

absent or tardy at least six times between January 1997 and her termination in

August 1997.

Even when good reasons -- the factual bases for which are not rebutted -- are

proffered by an employer, a plaintiff can, in some circumstances, still show

discrimination. To do so, however, a plaintiff must show that male employees with

employment histories like the plaintiff’s were not subject to the same adverse

employment action as the plaintiff. See Osram Sylvania, Inc. v. Teamsters Local

Union 528, 87 F.3d 1261, 1265 (11th Cir. 1996) (“Disparate treatment exists when

similarly situated workers are treated differently even though they have committed

9
similar acts.”). Rojas, however, can point to no man -- in a similar position and

with a similar employment history -- who was treated better than she was.4

Given the factual record in this case, we are being urged to do nothing more

than second-guess a business decision made by Florida. This kind of inquiry --

whether a business decision is wise or nice or accurate -- is precluded by Damon

and similar cases. See supra. Judges are responsible for drawing the lines on what

evidence is sufficient to create an issue on pretext. In this case, the evidence shows

that a new supervisor announced his intention to hold all employees responsible for

following workplace rules and procedures. The evidence also shows that the

plaintiff did, in fact, violate some of those rules and procedures. But, no evidence

exists to show that similarly situated male and female workers were treated

differently: workers of both sexes were subsequently fired for failure to follow the

procedures, and Rojas can identify no man with a similar work history who was

not fired. In such a situation, no basis for pretext exists.

4
Rojas also claims that Beguiristain failed to follow Florida’s guidelines for reporting her poor
work performance and violation of workplace rules and for notifying her of the deficiencies in her
work. The evidence, however, also shows that Beguiristain did not follow proper reprimand
procedures for Bryan Lawrence. To establish pretext, a plaintiff must show that the deviation from
policy occurred in a discriminatory manner. Cf. Brown v. American Honda Motor Co., 939 F.2d
946, 952 (11th Cir. 1991) (“It is difficult to hold that a practice which affects . . . all races in the
same manner is actually designed to conceal a racially discriminatory motive.”). Rojas cannot make
such a showing.

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 Because Rojas has failed to create a genuine issue of material fact on the

question of whether Florida’s proffered reasons for her termination were pretext,

the district court’s grant of summary judgment on Rojas’s retaliation and sex

discrimination claims must be affirmed.

II. Hostile Environment

We see no merit to Rojas’s claims of hostile environment. To establish that

a workplace constitutes a “hostile work environment,” a plaintiff must show that

“the workplace is permeated with discriminatory intimidation, ridicule, and insult,

that is sufficiently severe or pervasive to alter the conditions of the victim's

employment and create an abusive working environment.” Harris v. Forklift Sys.,

Inc., 114 S. Ct. 367, 370 (1993) (citations and quotation marks omitted). The

factors to consider are the frequency and severity of the conduct, whether it is

physically threatening or humiliating, and to what degree it reasonably interferes

with the plaintiff’s job performance. See Allen v. Tyson Foods, Inc., 121 F.3d

642, 647 (11th Cir. 1997).

Rojas argues that she was “treated coolly and made to feel unwelcome” and

that Curtis Harris got away with some workplace infractions which were different

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from her infractions. The evidence presented by Rojas does not show enough to

create a genuine issue of material fact on whether the Harris standard is satisfied.

As such, summary judgment for Florida was properly granted.

The judgment of the district court is hereby affirmed.

AFFIRMED.

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