Shirley Burns v. City of Cape Coral

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-13887
Non-Argument Calendar
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D.C. Docket No. 2:10-cv-00573-JES-DNF
SHIRLEY BURNS,
Plaintiff-Appellant,
versus
CITY OF CAPE CORAL,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(June 3, 2013)
Before HULL, JORDAN and BLACK, Circuit Judges.
PER CURIAM:
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Shirley Burns, an African-American woman, appeals the district court’s
grant of the City of Cape Coral’s (Cape Coral) motion for summary judgment as to
her complaint alleging race and sex discrimination under Title VII, 42 U.S.C.
§ 2000e-2(a), and the Florida Civil Rights Act, Fla. Stat. § 760.10(1). In June
2008, Cape Coral offered financial incentives for employees participating in
certain retirement plans to retire early, but did not provide any such incentives to
employees, like Burns, who participated in a 401(a) Defined Contribution Plan
(401(a) Plan). In September 2008, Cape Coral passed a budget which eliminated
Burns’ position, effective January 31, 2009. The next month, Cape Coral failed to
pass Ordinance 116-08, which would have provided severance payments to 401(a)
Plan employees. On appeal, Burns argues she identified proper comparators in
support of a prima facie case that Cape Coral discriminated against her by
eliminating her position and denying her a severance payment. She also argues
Cape Coral failed to present legitimate, non-discriminatory reasons for its actions.
Standard of Review
“We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the party opposing the motion.” Brooks
v. Cnty. Comm’r of Jefferson Cnty., Ala., 446 F.3d 1160, 1161-62 (11th Cir. 2006).
Summary judgment is appropriate if the evidence demonstrates there is no genuine
issue as to any material fact, and that the moving party is entitled to judgment as a
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matter of law. Fed. R. Civ. P. 56(a). The moving party bears the burden of
demonstrating no genuine issue of material fact exists, see Brooks, 446 F.3d at
1162, although the non-moving party must make a sufficient showing on each
essential element of his case for which he bears the burden of proof, see Celotex
Corp. v. Catrett, 106 S. Ct. 2548, 2552 (1986).
Discussion
Title VII and the Florida Civil Rights Act prohibit employers from
discharging an employee or discriminating against the employee with respect to
her compensation on the basis of the employee’s race or sex. 42 U.S.C.
§ 2000e-2(a); Fla. Stat. § 760.10(1)(a).1 Once the plaintiff establishes a prima
facie case of discrimination, a presumption of discrimination arises that the
employer may rebut by articulating at least one legitimate, non-discriminatory
reason for its action. Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264
(11th Cir. 2010). The burden then shifts back to the plaintiff to produce evidence
that the employer’s proffered justification is a pretext for discrimination. Id. In
doing so, a plaintiff may not recast the employer’s proffered non-discriminatory
reason, or substitute her own business judgment for that of the employer. See
Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc). A reason
1 Title VII law applies to claims raised under the Florida Civil Rights Act. See Albra v. Advan,
Inc., 490 F.3d 826, 834 (11th Cir. 2007).
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is not pretext unless the plaintiff shows it is false, and that discrimination was the
true reason. See Brooks, 446 F.3d at 1163.
Even assuming Burns established a prima facie case of discrimination,
Cape Coral provided legitimate, non-discriminatory reasons for its actions. As to
the denial of a severance payment, Cape Coral presented evidence it could not
consider paying a severance to 401(a) Plan employees contemporaneously with the
buyouts due to legal concerns. Cape Coral also proffered evidence that the City
Council failed to pass Ordinance 116-08 due to concerns that the severance
payments were fiscally irresponsible. Likewise, Cape Coral presented evidence
that the City Council eliminated Burns’ position as a means to reduce expenditures
and save money. Cape Coral further proffered that the position was selected for
elimination based on Burns’ agreement and desire to retire.
Burns has failed to present sufficient evidence that Cape Coral’s
justifications were pretext. Alvarez, 610 F.3d at 1264. She contends Cape Coral
should have retained her because (1) she exceeded the directive to reduce her
department’s budget by five percent, (2) Cape Coral did not consider eliminating
her position until the second reading of the fiscal year 2009 budget, (3) Cape Coral
had enough surplus to pay her salary for a year, (4) her salary was paid from the
general fund, and (5) she agreed to retire in exchange for a severance payment.
Burns also contends Cape Coral should have waited to eliminate her position until
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after the City Council authorized a severance package. None of Burns’ arguments,
however, cast any doubt on Cape Coral’s assertions that its decisions were fiscally
and legally motivated. Burns instead seeks to impermissibly recast these
justifications and substitute her own business judgment for that of the city. Burns
must do more than demonstrate Cape Coral’s decisions were unwise, see
Chapman, 229 F.3d at 1030, and she has failed to demonstrate Cape Coral’s
proffered reasons were false, see Brooks, 446 F.3d at 1163.2 Accordingly, we
affirm the district court.
AFFIRMED.
2 Notably, the fiscal year 2009 budget and the City Council’s failure to pass Ordinance 116-08
equally affected white males.
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