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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10449
Non-Argument Calendar
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D.C. Docket No. 4:15-cv-00118-RH-CAS
TINA RAY,
Plaintiff-Appellant,
versus
CITY OF TALLAHASSEE,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Florida
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(November 8, 2016)
Before TJOFLAT, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Tina Ray, a former employee of the City of Tallahassee (the “City”), appeals
the District Court’s grant of summary judgment on her claim that the City fired her
for complaining about racial discrimination on the job site, 1 in violation of Title
VII, 42 U.S.C. § 2000e-2(a), the Public Florida Whistleblower Act ("PWA"), Fla.
Stat. § 112.3187(4)(a), and the Florida Civil Rights Act ("FCRA"), Fla. Stat.
§§ 760.10(l)(a).2 Ray argues that the Court erred because she showed that the
reasons given by the City for firing her—relating to her poor job performance—
were pretextual. Ray identifies four points that show pretext: (1) the City's failure
to follow its disciplinary policies; (2) her supervisor's close documentation of her
performance; (3) her supervisor's announcement that she would only be in the
Land Use section for 30 days; and (4) the lapse of fewer than 60 days between her
protected activity and ultimate termination. After considering the parties' briefs and the
record, we affirm the District Court's judgment.
1
The Court granted the City summary judgment on the record during a reported pretrial
conference held on January 7, 2016. Doc. 43.
2
In addition to a claim of retaliatory discharge (for complaining about racial
discrimination), Ray's complaint alleged age and race discrimination, and the District Court,
giving Ray the benefit of a doubt, construed it also to allege racial harassment. The Court
granted the City summary judgment on all claims. Ray's brief on appeal only challenges the
Court's denial of her claim of retaliatory discharge; it presents no argument challenging the
Court's rejection of her other claims. We therefore consider her to have abandoned all claims
except the retaliatory discharge claim.
We review the summary judgment de novo, applying the same legal standard used by the
District Court in deciding to grant it. Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234,
1242 (11th Cir. 2001). We draw all factual inferences in the light most favorable to the non-
moving party, Ray. Id. Summary judgment is appropriate where “there is no genuine dispute as
to any material fact." Fed. R. Civ. P. 56(a).
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I.
Title VII makes it an unlawful employment practice for an employer to
discriminate against any employee for opposing any practice made unlawful by Title
VII, or for making a charge under Title VII. 42 U.S.C. § 2000e-3(a). A
similar protection against retaliation appears in the FRCA. Fla. Stat. § 760.10(7).
The PWA, in turn, protects employees who, under certain circumstances, disclose
"[a]ny violation or suspected violation of any... local law, rule, or regulation
committed by an employee or agent of an agency" or "[a]ny act or suspected act of
gross mismanagement, malfeasance, misfeasance" from discipline or dismissal.
Fla. Stat. §§ 112.3187(4), (5), (7). With respect to unlawful practices, both Title
VII and the FCRA prohibit employers from discharging an employee, or otherwise
discriminating against her with respect to her employment, on the basis of race. 42
U.S.C. § 2000e-2(a)(l); Fla. Stat. § 760.10(l)(a).
A plaintiff may establish a Title VII claim through either direct or
circumstantial evidence. Hinson v. Clinch Cty, Ga. Bd. Of Educ, 231 F.3d 821,
827 (11th Cir. 2000). In reviewing Title VII claims that are supported by
circumstantial evidence, we use the three-step burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792,93 S. Ct. 1817,
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36 L. Ed. 2d 668 (1973). Claims under the PWA and FCRA are governed by the
burden-shifting standard for Title VII retaliation claims. See, e.g. Sierminski v.
Transouth Fin. Corp., 216 F.3d 945, 950 (11th Cir. 2000) (PWA); Harper v.
Blockbuster Entm't Corp., 139 F.3d 1385,1387 (11th Cir. 1998) (FCRA). Under
McDonnell Douglas, if a plaintiff establishes a prima facie case of
retaliation, and the defendant provides a legitimate nondiscriminatory reason for
the materially adverse action, then the plaintiff must finally prove that the
defendant's reasons were pretexts for discrimination. Bryant v. Jones, 575 F.3d
1281,1307-08 (11th Cir. 2009).
'To establish a prima facie case of retaliation under Title VII, a plaintiff
must show that (1) [she] engaged in statutorily protected expression; (2)
[she] suffered an adverse employment action; and (3) there is some causal
relation between the two events.' Olmsted v. Taco Bell Corp., 141 F.3d
1457, 1460(1 lth Cir.1998) (citing Meeks v. Computer Associates Int’l, 15
F.3d 1013,1021 (11th Cir.1994)).
Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (1 lth Cir. 2001).
To prove pretext, the plaintiff must show that the employer's proffered
reasons were "a coverup for a... discriminatory decision." Rojas v. Florida, 285
F.3d 1339, 1342 (1 lth Cir. 2002). If the defendant's legitimate nondiscriminatory
reason is one that might motivate a reasonable employer, a plaintiff cannot recast
the reason but must meet it head on and rebut it. Wilson v. B/E Aerospace, Inc.,
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376 F.3d 1079,1088 (11th Cir. 2004). Ultimately, a reason is not "pretext/or
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. 2742,125 L. Ed. 2d 407 (1993) (emphasis in original) (quotation
omitted).
The inquiry into pretext centers on the employer's beliefs, not the
employee's beliefs or "reality as it exists outside of the decision maker's head."
Alvarez v. Royal Atlantic Developers, 610 F.3d 1253,1266 (11th Cir. 2010). If the
reason is one that might motivate a reasonable employer, the plaintiff cannot
succeed by simply quarrelling with the wisdom of the reason. Chapman v. AI
Transp, 229 F.3d 1012,1030 (11th Cir. 2000) (en banc). The ultimate burden of
proving by a preponderance of the evidence that the reason provided by the
employer is a pretext for prohibited, retaliatory conduct remains on the plaintiff.
Pennington v. City of Huntsville, 261 F.3d 1262,1266 (11th Cir. 2001).
Conclusory allegations of discrimination are, without more, insufficient to carry
the plaintiffs burden. Mayfield v. Patterson Pump Co., 101 F.3d 1371,1376 (11th
Cir. 1996). With these principles in hand, we consider first whether Ray
established a prima facie case of retaliation.
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II.
Tina Ray is a white female. She was 58 years of age when she went to work
for the City in its Growth Management Department on January 13,2014, as a
probationary employee for six months. Karen Jumonville was the Department's
Director. Ray was assigned to the Department's Building Inspections Division
("BI") as a Permit Technician. Doug Moore, who managed the BI, was her
ultimate supervisor. Ray's immediate supervisor was Jasmine Gates, the BI's
Permitting Services Supervisor.
The BI was responsible for preparing, processing and issuing various types
of building permits. Like the other Permit Technicians working under Gates, Ray
was cross-trained to handle different types of permits. It was fast-paced work
involving different mediums, e.g., telephone, email, fax and mail, and a variety of
customers, e.g., contractors, builders, and the City's inspectors.
It was not long before Ray got behind in her work. She was slower than the
other technicians and had difficulty processing building permits. Gates and
Jumonville received complaints from at least one customer. They also received
complaints from staff. In short, Ray was not performing adequately. On April 16,
2014, Gates and Moore told her that her employment was to be terminated. They
gave her the option of resignation instead of termination.
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Two days later, on April 18, Ray emailed Gates and Moore saying that she
would not resign; she wanted to continue working for the City. They responded on
April 20, with a letter notifying her that her probationary period would end
effective April 30. The same day, April 20, Ray formally grieved the notification,
complaining that she had been bullied and harassed in front of co-workers by a
black co-worker, a technician named Carol Horsey. She claimed that Horsey's
conduct amounted to racial discrimination.
On April 20, having been informed of Ray's grievance, Moore met with Ray to
learn the specific details of the racial discrimination. On April 21, at Moore's
request, Ray described Horsey's behavior and informed him of conversations she
had with a co-worker about Horsey two weeks earlier and with another co-worker
that day. And she apologized for not complaining about Horsey's conduct sooner.
Pursuant to City policy, Jumonville heard Ray's grievance. She reversed
Moore's and Gate's decision to terminate Ray's employment and arranged to
transfer Ray to the Department's Land Use and Environmental Services Division
("LUES"), with an extended period of probation, to "see if she would be better
suited to a position in a more relaxed atmosphere." On April 22, Jumonville and Moore
introduced Ray to Steve Palmer, the LUES Administrator, and Edie Harrison, who would
be her immediate supervisor. Ray agreed to the transfer and the extended probation. 3
3
During the meeting with Jumonville, Moore, Palmer and Harrison, nothing was said about
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Ray reported for work in the LUES on April 23. Ray had the same kind of
problems she manifested in the BI—particularly in forwarding phone calls and
handling permit information. On June 2, Palmer and Harrison met with Ray
regarding her probationary period and provided her with a document outlining her
deficiencies. Palmer informed her that she was being terminated.
Ray's claim of retaliation fails for two reasons. First, she failed to make out
a prima facie case of retaliation or to present evidence that the City's reason for
terminating her employment was pretextual. As for her prima facie case, Ray
established the first two elements: she engaged in protected expression,
complaining about Horsey's discriminatory behavior in the work place, and she
suffered adverse employment action. But she failed to establish the third element,
a causal connection between her complaint about Horsey and the adverse
employment action Palmer took. Neither Palmer, the LUES Administrator and
ultimate decision maker, nor Harrison, her immediate supervisor who
recommended her termination, knew anything at all about the complaint Ray had
made about the racial discrimination in the BI, brought about by Horsey's conduct.
Even if we were to assume that Palmer and/or Harrison knew about the complaint,
Ray's grievance or the complaint Ray had made about Horsey's purportedly discriminatory behavior
toward her. Ray admitted that LEUS was a different section of the Growth Management Department
with different co-workers.
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the reason for terminating Ray's employment was legitimate and non-discriminatory, and
Ray offered nothing to show that it was pretextual.
For the foregoing reasons, the judgment of the District Court is
AFFIRMED.
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