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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-13155
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-00601-KD-N
CASSANDRA A. MATTHEWS,
Plaintiff - Appellant,
versus
CITY OF MOBILE, ALABAMA,
Defendant - Appellee.
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Appeal from the United States District Court
for the Southern District of Alabama
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(August 16, 2017)
Before HULL, WILSON and JILL PRYOR, Circuit Judges.
PER CURIAM:
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The City of Mobile, Alabama terminated Cassandra Matthews, an African-
American woman, after she filed multiple complaints of discrimination with the
Equal Employment Opportunity Commission (“EEOC”). Matthews sued the City
for claims of racial discrimination and retaliation. The district court entered
summary judgment because Matthews failed to state a prima facie case of racial
discrimination and failed to demonstrate that the City’s legitimate non-
discriminatory reason for terminating her was a pretext for discrimination or
retaliation. We agree and therefore affirm.
I. BACKGROUND
Matthews began her career with the City in 1996 as a Public Safety
Dispatcher I in the Mobile Police Department’s Communications Unit, which
received calls placed with the City’s 911 system. Matthews subsequently was
promoted to Public Safety Dispatcher II. As a Public Safety Dispatcher II, when
the City received 911 calls answered by Public Safety Dispatcher I employees,
Matthews was responsible for, among other things, identifying emergencies,
handling priority calls, dispatching law enforcement officers and notifying the
officers of any updated information provided by a caller.
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A. The November 21 Priority Call and Matthews’s Termination
On November 21, 2012, Matthews was working when a citizen called 911 to
report a fight and request medical help. The Public Safety Dispatcher I (operator)
who received the call coded it as a priority call and sent the information to
Matthews, who dispatched three officers to the scene. Immediately after
dispatching the officers, Matthews took a personal phone call. The operator
remained on the line with the caller, who reported that the subject of the call had a
weapon. Although the operator tried to notify Matthews about the weapon via the
computer system’s complaint screen, Matthews did not provide the dispatched
officers with that updated information. Matthews claims that her call waiting
notification light on her console was not operating properly, and she never received
notification about the report of a weapon. When the dispatched officers reached
the scene, in fact there was no weapon.
The Public Safety Dispatcher I notified her superiors that Matthews had
failed to update the officers about a possible weapon on the scene. Matthews met
with Michael Williams, Mobile’s Chief of Police, who told her that she was going
to be transferred to the Traffic Unit while the City investigated the circumstances
surrounding the phone call and her failure to let the officers know about the report
of a weapon. During this meeting, Williams mentioned EEOC complaints that
Matthews had previously filed against the City, telling her that he was “sick and
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tired” of her EEOC complaints. According to Matthews, during this meeting
Williams had her EEOC complaints on his desk. Matthews was then transferred to
the Traffic Unit while the City investigated.
The City held a disciplinary hearing about Matthews’s handling of the
November 911 call. On January 24, 2013, Matthews appeared for her hearing in
front of the Trial Board, which consisted of three members, a Deputy Chief of
Police and two police captains, all appointed by Williams. After the hearing, the
Trial Board recommended that Matthews be dismissed from service, effective
February 1, 2013, because she neglected her duty to update dispatched officers
while she engaged in a personal call. Matthews was then terminated. 1
B. Matthews’s Disciplinary History and Previous EEOC Charges
In late 2010, Matthews needed surgery and took an extended medical leave.
On her first day back to work in 2011, Matthews was disciplined for engaging in
insubordination and failing to obey a direct order. After a hearing before the Trial
Board in January 2011, the City suspended her for 24 hours without pay.
After this suspension, the City charged Matthews with refusing to follow
proper procedures or communicate with co-workers when asked questions about
911 calls. After a disciplinary hearing in May 2011 before the Trial Board, the
1
Matthews appealed her termination to the Mobile County Personnel Board, which
affirmed the Trial Board’s decision to terminate her employment.
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City terminated her. She appealed this decision to the Mobile County Personnel
Board, which modified her punishment from termination to a 58-day suspension.2
When Matthews returned to work after the suspension, the City transferred her
from dispatch to the Warrants Department.
In October 2011, Matthews filed her first charge of discrimination with the
EEOC, claiming that the City had engaged in racial discrimination when it
disciplined her, tried to terminate her, and transferred her.
Matthews contends that she continued to be treated differently than other
employees. After she was told she could not leave her post or use the restroom and
failed to receive a promotion, Matthews filed a second EEOC charge in February
2012 alleging racial discrimination. In May 2012, Matthews filed a federal lawsuit
against the City and its employees, asserting various claims including that she
suffered discrimination when she was denied a promotion.3
2
Trial Board determinations can be appealed to the Mobile County Personnel Board and
then further appealed to the Mobile County Circuit Court. Matthews challenged in court both
her 24-hour suspension and 58-day suspension. The circuit court initially ruled in Matthews’s
favor, concluding that the disciplinary actions were void because the City failed to follow its
procedures in disciplining her. On appeal, the Alabama Court of Civil Appeals concluded that
Matthews failed to properly appeal to the Personnel Board the Trial Board’s initial decision
terminating her employment, which meant that the trial court lacked jurisdiction to modify her
initial termination. See Matthews v. City of Mobile (“Matthews I”), 182 So. 3d 547 (Ala. Civ.
App. 2014).
3
The district court granted summary judgment in favor of the City and other defendants.
See Matthews v. City of Mobile (“Matthews II”), No. 12-353, 2013 WL 5883833 (S.D. Ala. Oct.
31, 2013).
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In July 2012, Matthews was reprimanded for failing to obey orders. She
filed a third EEOC charge alleging that she was disciplined because of her race and
in retaliation for filing previous EEOC charges. In October 2012, the City received
a copy of Matthews’s third EEOC charge. On November 20, the EEOC dismissed
the charge and notified Matthews of her right to sue the City. Also in November
2012, Matthews filed an internal complaint of harassment and discrimination to the
Mobile Police Department’s Anti-Discrimination Committee. The Committee
found that Matthews failed to produce “any credible evidence to substantiate [her]
claim of harassment or racial discrimination.” Williams Letter, Doc. 59-3 at 1.4
The Committee then closed the matter without any further action.
In May 2013, Matthews filed a fourth EEOC charge alleging that her
February 2013 termination was the product of race discrimination, a hostile work
environment, and retaliation. The EEOC also dismissed this charge and notified
Matthews of her right to sue.
Matthews sued the City under Title VII for race discrimination, retaliation,
and retaliatory hostile work environment. The City moved for summary judgment
on Matthews’s claims. In her opposition to the motion, Matthews argued, based on
differences between how the City treated her and other employees, that she was
terminated because of her race. Matthews attached three declarations, by
4
Citations to “Doc. __” refer to numbered docket entries in the district court record.
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Communication Unit employees Angela Wright, Lakeisha M. Shoots, and
Stephanie Warne, which stated that other employees neglected their duties and
suffered no discipline. The declarations stated that other dispatchers had slept on
the job or worked while under the influence of prescription medication.
The district court granted the City’s motion. 5 First, the district court
determined that any claims regarding events prior to the filing of Matthews’s first
federal court action against the City, Matthews II—that is, events that occurred
prior to May 2012—were barred by res judicata. The district court further ruled
that Matthews’s December 2012 transfer to the Traffic Unit was not an adverse
employment action, and therefore she could not establish claims for race
discrimination and retaliation based on that action.6 The court then concluded that
the City was entitled to summary judgment on Matthews’s race discrimination
claim because she neither established a prima facie case nor came forward with
evidence that the City’s legitimate, nondiscriminatory reason for her termination
was pretext. The district court additionally granted summary judgment on her
retaliation claim because she came forward with no evidence showing that the
5
Because Matthews has offered no argument on her claim for hostile work environment,
she is deemed to have abandoned the issue on appeal. United States v. Cunningham, 161 F.3d
1343, 1344 (11th Cir. 1998).
6
Matthews does not contest on appeal the district court’s determination that her claims
prior to December 2012 were barred by res judicata or that her transfer to the Traffic Unit was
not an adverse employment action.
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City’s legitimate, non-retaliatory reason for her termination was pretext. This is
Matthews’s appeal from the dismissal of her race discrimination and retaliation
claims. 7
II. STANDARD OF REVIEW
We review de novo the district court’s grant of summary judgment,
construing facts and all reasonable inferences therefrom in favor of the nonmoving
party. Urquilla-Diaz v. Kaplan Univ., 780 F.3d 1039, 1050 (11th Cir. 2015).
Summary judgment is appropriate if the movant shows that there is no genuine
dispute as to any material fact such that “the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). Conclusory allegations and speculation are
insufficient to create a genuine issue of material fact. See Cordoba v. Dillard’s,
Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (“Speculation does not create a genuine
issue of material fact; instead it creates a false issue, the demolition of which is a
primary goal of summary judgment.” (internal quotation marks omitted)).
7
We note that Matthews separately challenged her termination in a state court, arguing
that her termination was void because the City did not allow her to be present at her hearing
before the Mobile County Personnel Board, a claimed violation of her constitutional rights. A
state trial court judge initially agreed and ordered her reinstated. The City appealed this
decision. But the Alabama Court of Civil Appeals determined that the appeal was moot and that
Matthews should have been terminated as of May 2011. See City of Mobile v. Matthews
(“Matthews III”), __ So. 3d __, 2016 WL3855051 (Ala. Civ. App. July 15, 2016). Neither party
argues that the Alabama Court of Civil Appeals’ decision in Matthews III has preclusive effect
here, so we need not address that issue. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d
678, 681 (11th Cir. 2014) (stating a party waives a claim when he does not address the issue on
appeal or merely makes a passing reference to the issue without plainly raising it).
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III. LEGAL ANALYSIS
Matthews appeals the district court’s grant of summary judgment to the City
on her race discrimination and retaliation claims. The court concluded that
Matthews failed to establish a prima facie case of racial discrimination and that she
produced no evidence that the City’s legitimate, nondiscriminatory reason for
terminating her was pretextual. We agree and affirm the district court’s grant of
summary judgment.
A. Race Discrimination
Title VII of the Civil Rights Act of 1964, in relevant part, prohibits
employers from discriminating against or discharging individuals on the basis of
race. 42 U.S.C. § 2000e-2. Matthews alleges the City terminated her employment
in February 2013 because of her race. Upon review, we find no error in the
district court’s grant of summary judgment in favor of the City on Matthews’s race
discrimination claim.
Absent direct evidence of racial discrimination, we apply the burden-shifting
framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973), to evaluate a race discrimination claim at the summary
judgment stage. See Underwood v. Perry Cty. Comm’n, 431 F.3d 788, 794 (11th
Cir. 2005). Under this framework, the employee carries the initial burden of
establishing a prima facie case of discrimination on account of race. McDonnell
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Douglas Corp., 411 U.S. at 802. To establish a prima facie case of race
discrimination, the employee must show she (1) is a member of a protected racial
class; (2) was qualified for the position; (3) experienced an adverse employment
action; and (4) was replaced by someone outside of her protected class or received
less favorable treatment than an individual outside of her protected class.
Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008).
If the employee establishes a prima facie case of race discrimination, the
defendant employer must present a legitimate, nondiscriminatory reason for the
adverse employment action. McDonnell Douglas, 411 U.S. at 802. Should the
employer present a legitimate, nondiscriminatory reason for the employment
action, the employee must offer evidence that the proffered reason was pretext for
discrimination. Id. at 804. The employee may do so by demonstrating “such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
the employer’s proffered legitimate reasons for its action that a reasonable
factfinder could find them unworthy of credence.” Combs v. Plantation Patterns,
106 F.3d 1519, 1538 (11th Cir. 1997) (internal quotation marks omitted). At this
step, the employee must meet the employer’s reason “head on and rebut it.”
Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).
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We begin by considering whether Matthews established a prima facie case
of race discrimination. We assume, for the purposes of this appeal, that Matthews
satisfied the first three elements of the prima facie case.
To complete a prima facie case of race discrimination, however, Matthews
must show that the City treated her less favorably than an individual outside of the
protected class. An employee attempting to show less favorable treatment must
present comparators. We have explained that a proper comparator’s behavior must
be “nearly identical” to the plaintiff’s actions to prevent the court from second-
guessing an employer’s business decision. Maniccia v. Brown, 171 F.3d 1364,
1368 (11th Cir. 1999). Stated simply, the comparator and the plaintiff must be
similarly situated in all relevant aspects. Id.
We agree with the district court that Matthews failed to present evidence of
an individual outside of her protected class who was similarly situated in all
relevant aspects. Matthews presented evidence about other employees working as
dispatchers who were not terminated even though they were sleeping or under the
influence of prescription drugs while on the job. Matthews argues that she was
similarly situated to these comparators because their neglect of duties, like hers,
could have resulted in dangerous situations. But we agree with the district court
that these comparators were not similarly situated because none was accused of the
type of misconduct of which Matthews was accused—while on a personal call,
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failing to update officers about an armed suspect who is the subject of a priority
call. Because Matthews mounted no evidence of a similarly situated individual
outside of her protected class who received more favorable treatment, she failed to
establish a prima facie case of race discrimination.
But even if we assume that Matthews established a prima facie case of race
discrimination, we would still conclude that the City was entitled to summary
judgment. An employer may terminate an employee for a bad reason, a good
reason, or no reason at all, as long as the reason is not discrimination. Flowers v.
Troup Cty., Ga., Sch. Dist., 803 F.3d 1327, 1338 (11th Cir. 2015). Courts may not
second guess the business decisions of employers nor replace the employers’
notions of fair dealing with those of judges. Id. The City offered a legitimate,
nondiscriminatory reason for Matthews’s termination—that is, her failure to update
officers on the scene about an armed suspect while taking a personal call. And we
agree with the district court that Matthews failed to show that this reason was
pretextual.
Here, Matthews came forward with no evidence from which a reasonable
factfinder could find that the City’s proffered reason was pretext. It is undisputed
that she was on a personal phone call when the updated information about the
priority call was received and that she failed to inform the dispatched officers
about the weapon. Matthews contends that the City’s assertion is unsubstantiated
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because she was unaware of the update to the November 2012 priority call and
because it turned out that there was no weapon on the scene. Even if we assume
Matthews’s console was not operating properly, however, Matthews failed to show
the City’s proffered reason was pretext for discrimination. Her evidence of pretext
simply quarrels with the City’s determination that she neglected her duty. The
City may terminate an employee for any nondiscriminatory reason; here, the City
asserts that reason is that Matthews’s took a personal call while on an emergency
dispatch and neglected her duty. Matthews failed to offer evidence that the City’s
reason was contradicted, false, or racially motivated.
Matthews also argues that the City’s proffered reason was pretextual
because the Trial Board considered her past disciplinary history when deciding to
terminate her.8 She argues that the Trial Board’s reliance on her disciplinary
history was flawed because years later a state court trial judge ruled that the
previous disciplinary actions were void. Given the Alabama Civil Court of
Appeals’s subsequent conclusion that the trial court lacked jurisdiction over the
matter, we cannot see why the state trial court’s decision is of any significance in
this case. See Matthews I, 182 So. 3d 547. In any event, the Alabama state trial
8
The evidence on which Matthews relies to support her conclusion that the Trial Board
considered her past disciplinary history is the transcript of the testimony of a Trial Board
member at the Mobile County Personnel Board’s hearing on Matthews’s appeal of her
termination. But this transcript was not before the district court and is not included in the record
on appeal. See Meadows v. Cagle’s, Inc., 954 F.2d 686, 693 (11th Cir. 1992) (“This court cannot
assume a fact not in the record.”)
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court’s decision does not change the fact that at the time of Matthews’s hearing the
Trial Board understood that she had a lengthy history of past discipline. We
cannot second guess the City’s decision to terminate Matthews based on its
business judgment concerning her history. The district court did not err in granting
summary judgment to the City on Matthews’s race discrimination claim.
B. Retaliation
We now turn to Matthews’s retaliation claim. She claims that the City
retaliated against her for her EEOC charges by terminating her employment in
February 2013. Title VII prohibits employers from taking adverse employment
actions against employees who “opposed any practice” made unlawful by Title
VII, or “made a charge, testified, assisted, or participated in” a Title VII
proceeding or investigation. 42 U.S.C. § 2000e-3(a). Even though Matthews
established a prima facie case of retaliation, summary judgment in favor of the
City is appropriate nevertheless because there is no evidence that the City’s reason
for terminating Matthews was pretextual.
Matthews offers only circumstantial evidence of retaliation, so we again
apply the McDonnell Douglas burden-shifting framework. See 411 U.S. at 802.
We begin by considering whether Matthews established a prima facie case of
retaliation. Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir.
1993). To establish a prima facie case of retaliation, an employee must show that
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she (1) engaged in a statutorily protected activity and (2) suffered an adverse
employment action, and (3) that the adverse action was causally related to the
protected activity. Id.
The parties do not dispute that Matthews engaged in a statutorily protected
activity when she filed a charge of discrimination with the EEOC and complained
to the Anti-Discrimination Committee, or that she suffered an adverse employment
action when she was terminated. They do disagree about whether Matthews came
forward with evidence showing that the adverse employment action was causally
related to her protected activity. Like the district court, we conclude that Matthews
provided sufficient evidence of a causal link between the protected activity and the
adverse employment action.
We have explained that the causal link requirement is construed broadly so
that an employee “merely has to prove that the protected activity and the negative
employment action are not completely unrelated.” Pennington v. City of
Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001) (internal quotation marks
omitted). An employee may be able to establish a causal link based simply on
temporal proximity between the statutorily protected activity and the adverse
employment action. Thomas v. Cooper Lighting Inc., 506 F.3d 1361, 1364 (11th
Cir. 2007). Timing alone will be sufficient only when the two events are “very
close” in time. Id. When there is a gap of several months between the statutorily
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protected expression and the adverse employment action, the employee must come
forward with other evidence showing causation. Id.
We conclude that Matthews established a causal link. We acknowledge that
approximately four months passed between Matthews’s filing of her EEOC charge
of discrimination and her termination, and two months passed after Matthews’s
complaint to the Anti-Discrimination Committee. Even if the temporal proximity
of these events and Matthews’s termination is not enough to automatically
establish a causal link, however, Matthews satisfied her burden by coming forward
with other evidence of a causal link. Before she was terminated, Williams told her
that he was “sick and tired” of her EEOC complaints. This statement is sufficient
to establish a causal link for a prima face case of retaliation.
Because Matthews established a prima facie case of retaliation, the burden
shifted to the City to provide a legitimate, non-retaliatory reason for the adverse
employment action. Hairston, 9 F.3d at 919. We agree with the district court that
the City provided a legitimate, non-retaliatory reason for Matthews’s termination:
her neglect of duty during the November 2012 priority call.
To survive summary judgment, then, Matthews was required to establish
that the City’s proffered reason was pretextual. Matthews again argues that she did
not neglect her duties because her console did not operate correctly. We reject this
argument for the same reasons we discussed above.
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Matthews also advances that neglect of duty was not the real reason she was
terminated by pointing to Williams’s statement that he was “sick and tired” of her
EEOC complaints, which she contends shows that Williams fired her for filing
those complaints. But we cannot say that Williams’s statement shows weakness in
or contradicts the City’s reason for terminating Matthews. It is speculative to
conclude that this testimony shows the City terminated Matthews for filing EEOC
complaints because the Trial Board, a separate entity, albeit one whose members
were appointed by Williams, recommended her termination, and there is no
evidence that the Trial Board was aware of Matthews’s history of EEOC
complaints. Cordoba, 419 F.3d at 1181. Because we cannot say that a reasonable
factfinder could find that Matthews’s termination for neglect of duty was
pretextual, the district court properly granted summary judgment.
IV. CONCLUSION
For the reasons set forth above, we affirm the judgment of the district court.
AFFIRMED.
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