Kourtney Shelley v. Wesleyan College

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10264
Non-Argument Calendar
____________________
KOURTNEY SHELLEY,
Plaintiff-Appellant,
versus
WESLEYAN COLLEGE,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:18-cv-00380-MTT
____________________
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2 Opinion of the Court 21-10264
Before WILSON, G RANT, and B RASHER , Circuit Judges.
PER CURIAM:
Kourtney Shelley, an African-American proceeding pro se,
appeals the district court’s grant of summary judgment to her for-
mer employer, Wesleyan College (Wesleyan), in her suit alleging
race discrimination and retaliation under Title VII of the Civil
Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e
-2, and 42 U.S.C.
§ 1981. Wesleyan contends that summary judgment was properly
granted on both of Shelley’s claims and that Shelley has abandoned
any argument challenging summary judgment for making only
general, conclusory statements in her brief and failing to provide
factual support. We agree with Wesleyan that Shelley has aban-
doned these arguments. However, assuming arguendo that she
has preserved her arguments, they lack merit because she failed to
establish a prima facie case for both her race-discrimination claim
and her retaliation claim.1 Therefore, we affirm the district court.
I.
1 Before the district court, the parties also referred to the “convincing mosaic”
standard for opposing summary judgment, and to a harassment or hostile
work environment claim. We conclude that neither of these is preserved on
appeal.
See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir.
2014);
Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir.
2004). Likewise, we decline to address Shelley’s reliance on a “cat’s paw” the-
ory of liability, which she raises for the first time on appeal.
Walker v. Jones,
10 F.3d 1569, 1572 (11th Cir. 1994).
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21-10264 Opinion of the Court 3
The facts of this case are contested by both sides. The indis-
putable facts are that in November 2017, Kourtney Shelley began
working for Wesleyan College as the Transfer Support Coordina-
tor. Her supervisor, Clint Hobbs, who is Wesleyan’s Vice Presi-
dent for Strategic Enrollment, terminated Shelley’s employment in
January 2018. However, the parties present different facts and cir-
cumstances leading up to Shelley’s termination.
Hobbs stated in an affidavit that he hired Shelley due to her
depth of experience in the field. Hobbs soon realized that Shelley
was not meeting his expectations after issues arose concerning her
adjustment to the new job. To aid in her adjustment, Hobbs as-
signed Shelley’s co-worker, Katrina Skalko, to train Shelley in her
new role. Although Skalko was not Shelley’s supervisor, she re-
ported issues to Hobbs about Shelley’s work, such as Shelley’s fail-
ure to complete the training, absenteeism, and failure to adhere to
workplace policies. The problems came to a head when Hobbs
made the decision to terminate Shelley in January 2018, saying that
she was not a good fit for the position.
Shelley contends that her termination was not a result of her
poor work performance, but rather the result of racial discrimina-
tion and subsequent retaliation for her effort to resolve these issues.
She alleges that Skalko was bullying and harassing her. For exam-
ple, Shelley alleges that Skalko threw down a box at Shelley’s feet
and asked Shelley to take it to the conference room and that Skalko
told Shelley she needed a babysitter one afternoon when Shelley
was heading home around 5 p.m.
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4 Opinion of the Court 21-10264
After her termination, Shelley sued Wesleyan for race dis-
crimination and retaliation under Title VII and 42 U.S.C. § 1981.
However, Shelley presented no direct evidence for either of these
claims and therefore had to rely on circumstantial evidence. To
establish race discrimination, Shelley needed to prove, among
other things, that Wesleyan treated similarly-situated employees
outside of her protected class more favorably.
Lewis v. City of Un-
ion City, 918 F.3d 1213, 1220 (11th Cir. 2019) (en banc). To succeed
on her retaliation claim, Shelley needed to establish that she en-
gaged in a statutorily-protected activity.
See Chapter 7 Tr. v. Gate
Gourmet, Inc., 683 F.3d 1249, 1258 (11th Cir. 2012). In granting
Wesleyan’s motion for summary judgment, the district court
found that Shelley failed to establish a prima facie case for either
claim.
Shelley now appeals the district court’s ruling regarding her
race-discrimination claim and her retaliation claim. For ease of ref-
erence, we address each claim separately.
II.
When appropriate, we will review de novo a lower court’s
grant of summary judgment, using the same legal standards ap-
plied by the district court.
Alvarez v. Royal Atl. Devs., Inc., 610
F.3d 1253, 1263 (11th Cir. 2010). An appellant abandons a claim,
however, when she either makes only a passing reference to it or
“raises it in a perfunctory manner without supporting arguments
and authority.”
Sapuppo, 739 F.3d at 681. Pro se pleadings will be
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21-10264 Opinion of the Court 5
liberally construed.
Tannenbaum v. United States, 148 F.3d 1262,
1263 (11th Cir. 1998) (per curiam).
Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact and the mo-
vant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). In determining whether the movant has met this burden,
courts must view the evidence in the light most favorable to the
non-movant.
Alvarez, 610 F.3d at 1263–64.
When a movant has shown that no genuine dispute of ma-
terial fact exists, the burden shifts to the non
-movant to show that
there is a genuine issue of material fact that precludes summary
judgment.
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.
1991). The non
-movant must go beyond the pleadings and present
competent evidence showing how specific facts create a genuine
issue.
Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004).
Under Title VII, it is unlawful for an employer to “discrimi-
nate against any individual with respect to [her] compensation,
terms, conditions, or privileges of employment, because of [her]
race . . . .” 42 U.S.C. § 2000e
-2(a)(1). Under 42 U.S.C. § 1981(a),
“[a]ll persons within the jurisdiction of the United States shall have
the same right . . . to make and enforce contracts.” Claims under
§ 1981 are subject to the same analytical framework as claims under
Title VII.
Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330
(11th Cir. 1998).
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6 Opinion of the Court 21-10264
Without direct evidence, a claimant may show discrimina-
tion through circumstantial evidence by satisfying the
McDonnell
Douglas burden
-shifting framework.
Lewis, 918 F.3d at 1220. Un-
der that framework, “the plaintiff bears the initial burden of estab-
lishing a prima facie case of discrimination by showing (1) that she
belongs to a protected class, (2) that she was subjected to an ad-
verse employment action, (3) that she was qualified to perform the
job in question, and (4) that her employer treated ‘similarly situ-
ated’ employees outsider her class more favorably.”
Id. at 1220–21.
The plaintiff can also establish the fourth prong by showing that
her employer replaced her with a person outside her protected
class.
Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1312 n.7 (11th
Cir. 2018).
We have noted before that “discrimination is a comparative
concept—it requires an assessment of whether ‘like’ (or instead dif-
ferent) people or things are being treated ‘differently.’”
Lewis, 918
F.3d at 1223. To prove that an employer treated a similarly-situ-
ated individual outside the employee’s protected class more favor-
ably, the employee must show that she and her proffered compar-
ators were “similarly situated in all material respects.”
Id. at 1224.
Generally, a similarly-situated comparator will engage in the same
basic conduct as the plaintiff, will be subject to the same policies,
will have the same supervisors, and will share the plaintiff’s em-
ployment or disciplinary history.
Id. at 1227–28.
If the plaintiff makes out a prima facie case of discrimination,
the burden shifts to the employer to articulate “a legitimate,
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21-10264 Opinion of the Court 7
nondiscriminatory reason” for its action.
Id. at 1221. If the em-
ployer articulates such a reason, the burden then shifts back to the
plaintiff to show that the stated reason is pretextual.
Id. A plaintiff
can show pretext by presenting evidence that a proffered reason is
false, and that discrimination was the true reason.
Brooks v. Cnty.
Comm’n of Jefferson Cnty., 446 F.3d 1160, 1163 (11th Cir. 2006).
Here, any challenge to the district court’s disposition of Shel-
ley’s race-discrimination claim fails for several reasons. First, even
liberally construed, Shelley has abandoned any argument that the
district court erred in granting summary judgment against her on
that claim.
Tannenbaum, 148 F.3d at 1263. Shelley references her
race-discrimination claim only once in her appellate brief, making
a passing reference to it in her statement of the issues. She does so
in a perfunctory manner with no supporting arguments or author-
ity.
Sapuppo, 739 F.3d at 681
. Thus, she has abandoned this argu-
ment on appeal.
Even if we were to conclude that Shelley has not abandoned
a challenge to the grant of summary judgment on her race-discrim-
ination claim, we nevertheless agree with the district court that
Shelley failed to establish a prima facie case of race discrimination
under
McDonnell Douglas because she failed to identify a simi-
larly-situated comparator or show that she was replaced with
someone outside her protected class.
Lewis, 918 F.3d at 1221;
Hornsby-Culpepper, 906 F.3d at 1312 n.7. Further, even if Shelley
established a prima facie case of race discrimination, Wesleyan
identified legitimate, nondiscriminatory reasons for her
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8 Opinion of the Court 21-10264
termination, and Shelley did not establish that these reasons were
pretextual.
Lewis, 918 F.3d at 1221;
Brooks, 446 F.3d at 1163.
III.
Title VII prohibits employers from retaliating against an em-
ployee because she has opposed acts made unlawful by Title VII.
42 U.S.C. § 2000e–3(a). Retaliation claims are likewise cognizable
under section 1981 and are analyzed under the same framework.
Gogel v. Kia Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1134 (11th
Cir. 2020) (en banc).
We employ the
McDonnell Douglas burden
-shifting frame-
work to analyze claims of retaliation when an employee relies on
circumstantial evidence.
Brown v. Ala. Dep’t of Transp., 597 F.3d
1160, 1181 (11th Cir. 2010).
A prima facie claim of retaliation under Title VII requires the
plaintiff to show that: “(1) she engaged in statutorily protected ac-
tivity; (2) she suffered a materially adverse action; and (3) there was
a causal connection between the protected activity and the adverse
action.”
Chapter 7 Tr., 683 F.3d at 1258 (internal quotation marks
omitted). With respect to the first prong, the opposition clause of
Title VII protects an employee from retaliation because the em-
ployee opposed a practice that was unlawful under Title VII.
EEOC v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 (11th Cir.
2000); 42 U.S.C. § 2000e
-3(a).
As with discrimination claims, if a plaintiff establishes a
prima facie case for retaliation, and the defendant shows that it had
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21-10264 Opinion of the Court 9
legitimate, non
-retaliatory reasons for its adverse decision, then
“[t]he plaintiff bears the ultimate burden of proving by a prepon-
derance of the evidence that the reason provided by the employer
is a pretext for prohibited, retaliatory conduct.”
Olmsted v. Taco
Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998). The plaintiff must
meet the proffered reason “head on” and demonstrate “weak-
nesses, implausibilities, inconsistencies, [and] incoherencies” to
survive the summary judgment stage.
Gogel, 967 F.3d at 1137.
Here, too, even if we assume arguendo that Shelley has not
abandoned a challenge to the grant of summary judgment on her
retaliation claim, we conclude that the district court properly found
that she failed to establish a prima facie case of retaliation under
McDonnell Douglas because she failed to show that she engaged
in a statutorily-protected activity.
Total Sys. Servs., 221 F.3d at
1174. Even if Shelley established a prima facie case of retaliation,
Wesleyan identified legitimate, non
-retaliatory reasons for her ter-
mination, and Shelley did not establish that these reasons were pre-
textual.
Olmsted, 141 F.3d at 1460;
Gogel, 967 F.3d at 1137. Ac-
cordingly, we affirm.
AFFIRMED.
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