McCaskill v. 13th Judicial Circuit Court of Alabama

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TEKEELA A. McCASKILL, 	)
Plaintiff, 	)
)
v. 	)CIVIL ACTION NO. 1:22-00250-TFM-N
)
13TH JUDICIAL CIRCUIT COURT 	)
OF ALABAMA, et al., 	)
Defendants. 	)
REPORT AND RECOMMENDATION
This civil action is before the Court on the motion for summary judgment under
Federal Rule of Civil Procedure 56, with incorporated supporting brief and attached
supporting evidence, filed September 16, 2024, by the lone remaining defendant, the
Office of the Circuit Clerk for the 13th Judicial Circuit (“the Circuit Clerk’s Office”)
(Doc# 96).1 The assigned District Judge has referred that motion to the undersigned
Magistrate Judge for appropriate action under 28 U.S.C. § 636(a)-(b), Federal Rule of
Civil Procedure 72, and S.D. Ala. GenLR 72(a). See S.D. Ala. GenLR 72(b); (9/16/2024
electronic reference notation).
The Plaintiff, Tekeela A. McCaskill, who at all times has litigated this action
without counsel (pro se), filed three separate responses in opposition to the motion for
summary judgment (see Docs# 101, 106, 115), 2 along with various evidentiary
1 As explained in more detail below, the lone remaining Defendant has now returned
to referring to itself as the “13th Judicial Circuit Court of Alabama” in its summary
judgment briefing. However, the Circuit Clerk’s Office is the lone defendant named
in the operative complaint (Doc# 64) and is the only entity to have answered that
complaint (Doc# 67). The lone remaining Defendant has never moved to re-substitute
the 13th Judicial Circuit for the Circuit Clerk’s Office, and it is well established that
pleadings may not be amended through argument in summary judgment briefing. See
Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (per curiam).
2 	McCaskill’s first two responses (Docs# 101, 106) were labeled and docketed as
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submissions (Docs# 102, 103, 104, 107, 111, 112, 113). On October 11, 2024, the
Circuit 	Clerk’s 	Office 	filed 	a 	motion 	to 	strike 	one 	of 	McCaskill’s 	evidentiary
submissions (Doc# 105),3 to which McCaskill filed a response in opposition (Doc# 110).
On October 28, 2024, the Circuit Clerk’s Office filed an omnibus brief in reply to
McCaskill’s responses, with attached supporting evidence (Doc# 117).
Upon due consideration, the undersigned finds that the Circuit Clerk’s Office’s
motion to strike is due to be found MOOT, and that its motion for summary judgment
is due to be GRANTED and this action DISMISSED with prejudice.
I. 	Procedural Background & Operative Claims
McCaskill initiated this action by filing a complaint with the Court on June 27,
2022. (Doc# 1); Fed. R. Civ. P. 3. The opening complaint named the “13th Judicial
Circuit Court of Alabama Civil Division” as the sole defendant and alleged only a
single sentence: “I Tekeela McCaskill am filing a complaint of Race and Retaliation
against the Circuit Court of Mobile Alabama.” (Doc# 1, PageID.1). On January 31,
2023, McCaskill filed her first amended complaint (Doc# 24) as a matter of course,
motions for summary judgment, but the undersigned has instead construed them as
responses to the Circuit Clerk’s Office’s motion for summary judgment. (See Doc#
108). Nevertheless, even if they are properly considered motions for summary
judgment, they are due to be denied for the same reasons the Circuit Clerk’s Office’s
motion is due to be granted as explained herein.
The second response brief (Doc# 106), labeled by McCaskill as an “Amended
Plaintiff Motion for Summary Judgment,” is a copy of the first response brief (Doc#
101) but with exhibit citations and further argument added, and the exhibits attached
to the first response are also included with those attached to the second. Accordingly,
the undersigned has not utilized the first response brief (Doc# 101) in addressing the
present motion for summary judgment.
3 The assigned District Judge has also referred that motion to the undersigned
Magistrate Judge for appropriate action under 28 U.S.C. § 636(a)-(b), Federal Rule of
Civil 	Procedure 	72, 	and 	S.D. 	Ala. 	GenLR 	72(a). 	See 	S.D. 	Ala. 	GenLR 	72(b);
(10/11/2024 electronic reference notation).
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see Fed. R. Civ. P. 15(a)(1)(B); (Doc# 22), which renamed the original defendant as
simply the “13th Judicial Circuit Court of Alabama,” and added JoJo Schwarzauer,
Chuck 	Lewis, 	and 	Tachonda 	Smith 	as 	party 	defendants. 	All 	defendants 	but
Schwarzauer filed motions to dismiss the first amended complaint under Federal
Rule of Civil Procedure 12(b)(6). (See Docs# 27, 29). The defendants and the Court
construed 	McCaskill’s 	complaint 	as 	asserting 	only 	claims 	of 	workplace 	racial
discrimination and retaliation under Title VII of the Civil Rights Act of 1964, and
McCaskill did not argue otherwise. On July 17, 2023, the Court, adopting the
recommendations of the undersigned (see Doc# 41), ordered the following: (1) that
McCaskill’s brief in response to the motions to dismiss be construed as a notice of
voluntary dismissal of her claims against Schwarzauer, Lewis, and Smith under
Federal Rule of Civil Procedure 41(a)(1)(A)(i), effective upon its filing; (2) added the
Circuit Clerk’s Office as a party defendant under Federal Rule of Civil Procedure 21;
and (3) granted the 13th Judicial Circuit Court’s Rule 12(b)(6) motion to dismiss, but
without prejudice to McCaskill’s ability to file a second amended complaint showing
why the 13th Judicial Circuit Court should be considered either a “single” or “joint
employer” with the Circuit Clerk’s Office for purposes of Title VII. (See Doc# 42).
McCaskill filed her second amended complaint on September 25, 2023, naming
the Circuit Clerk’s Office as the sole defendant and alleging claims for “racial
discrimination” and “retaliation” in violation of Title VII. (See Doc# 51). The Court
later granted McCaskill leave to file a third amended complaint (Doc# 64), the
operative pleading in this case.4 (See Doc# 63). Like the second amended complaint,
4 “As a general matter, ‘[a]n amended pleading supersedes the former pleading; the
original pleading is abandoned by the amendment, and is no longer a part of the
pleader's averments against his adversary.’ ” Pintando v. Miami-Dade Hous. Agency,
501 F.3d 1241, 1243 (11th Cir. 2007) (per curiam) (quoting Dresdner Bank AG,
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the third-amended complaint asserts claims of Title VII racial discrimination and
retaliation against the Office. Following the close of discovery, the Circuit Clerk’s
Office moved for summary judgment under Rule 56 on all claims. (See Doc# 96).
II. 	Summary Judgment Legal Standards
“A party may move for summary judgment, identifying each claim or defense-
-or the part of each claim or defense--on which summary judgment is sought. The
court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “An issue of fact is ‘material’ if it might affect the outcome
of the suit under governing law and it is ‘genuine’ if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Ave. CLO Fund, Ltd.
v. Bank of Am., N.A., 723 F.3d 1287, 1294 (11th Cir. 2013) (quotations omitted). “As
to materiality, the substantive law will identify which facts are material. Only
disputes over facts that might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment. Factual disputes that are
irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
“Summary judgment is only appropriate if a case is ‘so one-sided that one party
must prevail as a matter of law.’ ” Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227,
Dresdner Bank AG in Hamburg v. M/V OLYMPIA VOYAGER, 463 F.3d 1210, 1215
(11th Cir. 2006) (citation and quotation omitted)). See also, e.g., Fritz v. Standard Sec.
Life Ins. Co. of New York, 676 F.2d 1356, 1358 (11th Cir. 1982) (“Under the Federal
Rules, an amended complaint supersedes the original complaint.”).
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1235 (11th Cir. 2016) (quoting Anderson, 477 U.S. at 251-52) (citation omitted).
However, a “ ‘mere scintilla’ of evidence is insufficient; the non-moving party must
produce substantial evidence in order to defeat a motion for summary judgment.”
Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009) (per curiam). In other
words, “there must be enough of a showing that the jury could reasonably find for
that party … Where the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party, there is no genuine issue for trial.” Allen v. Tyson
Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quotations omitted).
“[C]ourts are required to view the facts and draw reasonable inferences in the
light most favorable to the party opposing the summary judgment motion.” Jackson
v. West, 787 F.3d 1345, 1352 (11th Cir. 2015) (quoting Scott v. Harris, 550 U.S. 372,
378 (2007) (alteration adopted) (quotations omitted)). See also Allen, 121 F.3d at 646
(“The evidence of the non-movant is to be believed, and all justifiable inferences are
to be drawn in his favor.” (quotations omitted)); Cottrell v. Caldwell, 85 F.3d 1480,
1486 n.3 (11th Cir. 1996) (“In determining the facts for summary judgment purposes,
we, like the district court, are required to view the evidence in the light most favorable
to the plaintiff. When that is done, a pure issue of law is created.”). “The Court ‘must
avoid weighing conflicting evidence or making credibility determinations.’ ” Ave. CLO
Fund, 723 F.3d at 1294 (quoting Stewart v. Booker T. Washington Ins., 232 F.3d 844,
848 (11th Cir. 2000)). However, “ ‘an inference based on speculation and conjecture is
not reasonable.’ ” Id. (quoting Blackston v. Shook & Fletcher Insulation Co., 764 F.2d
1480, 1482 (11th Cir. 1985)).
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“Where … the non-moving party bears the burden of proof on an issue at trial,
the moving party, in order to prevail, must do one of two things: show that the non-
moving party has no evidence to support its case, or present ‘affirmative evidence
demonstrating that the nonmoving party will be unable to prove its case at trial.’ ”
Hammer v. Slater, 20 F.3d 1137, 1141 (11th Cir. 1994) (quoting United States v. Four
Parcels of Real Property, 941 F.2d 1428, 1437–38 (11th Cir. 1991) (en banc)). “Once
the movant adequately supports its motion, the burden shifts to the nonmoving party
to show that specific facts exist that raise a genuine issue for trial.” Dietz v.
Smithkline Beecham Corp., 598 F.3d 812, 815 (11th Cir. 2010). “For issues on which
the non-moving party will bear the burden of proof at trial, the non-moving party
must either point to evidence in the record or present additional evidence ‘sufficient
to withstand a directed verdict motion at trial based on the alleged evidentiary
deficiency.’ ” Hammer, 20 F.3d at 1141 (quoting Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1116 (11th Cir. 1993)).
“When the moving party has the burden of proof at trial, that party must show
affirmatively the absence of a genuine issue of material fact: it must support its
motion with credible evidence that would entitle it to a directed verdict if not
controverted at trial. In other words, the moving party must show that, on all the
essential elements of its case on which it bears the burden of proof at trial, no
reasonable jury could find for the nonmoving party. If the moving party makes such
an affirmative showing, it is entitled to summary judgment unless the nonmoving
party, in response, comes forward with significant, probative evidence demonstrating
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the existence of a triable issue of fact.” Four Parcels of Real Prop., 941 F.2d at 1438
(citations and quotations omitted). Accord, e.g., Baker v. Upson Regional Medical
Center, No. 22-11381, 2024 WL 1003534, at *4 (11th Cir. Mar. 8, 2024) (per curiam).
“Cross-motions for summary judgment will not, in themselves, warrant the
court in granting summary judgment unless one of the parties is entitled to judgment
as a matter of law on facts that are not genuinely disputed.” United States v. Oakley,
744 F.2d 1553, 1555 (11th Cir. 1984) (per curiam) (quoting Bricklayers Int'l Union,
Local 15 v. Stuart Plastering Co., 512 F.2d 1017, 1023 (5th Cir. 1975)5). “In practice,
cross motions for summary judgment may be probative of the nonexistence of a
factual dispute, but this procedural posture does not automatically empower the court
to dispense with the determination whether questions of material fact exist…” Ga.
State Conf. of NAACP v. Fayette Cty. Bd. of Comm'rs, 775 F.3d 1336, 1345 (11th Cir.
2015) (citation and quotations omitted). “[W]hen both parties proceed on the same
legal theory and rely on the same material facts the court is signaled that the case is
ripe for summary judgment. Where, … however, the parties disagree as to the facts
and take inconsistent legal theories the mere filing of cross motions for summary
5 On “October 1, 1981 pursuant to the Fifth Circuit Court of Appeals Reorganization
Act of 1980, P.L. 96-452, 94 Stat. 1995, … the United States Court of Appeals for the
Fifth Circuit was divided into two circuits, the Eleventh and the ‘new Fifth.’ ” Bonner
v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc). “The
Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206,
1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit
rendered prior to October 1, 1981.” Smith v. Shook, 237 F.3d 1322, 1325 n.1 (11th Cir.
2001) (per curiam).
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judgment does not warrant the entry of such judgment.” Shook v. United States, 713
F.2d 662, 665 (11th Cir. 1983).
“A party asserting that a fact cannot be or is genuinely disputed must support
the assertion by: (A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or (B) showing that the materials cited do
not establish the absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1).
“The nonmoving party may avail itself of all facts and justifiable inferences in the
record taken as a whole.” Allen, 121 F.3d at 646 (quotation omitted). “If reasonable
minds could differ on the inferences arising from undisputed facts, then a court
should deny summary judgment.” Id. (quotation omitted). However, “[i]n opposing a
motion for summary judgment, ‘a party may not rely on his pleadings to avoid
judgment against him.’ ” Resol. Tr. Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th
Cir. 1995) (en banc) (quoting Ryan v. Int'l Union of Operating Eng'rs, Local 675, 794
F.2d 641, 643 (11th Cir. 1986)). Moreover, “[c]onclusory allegations and speculation
are insufficient to create a genuine issue of material fact.” Valderrama v. Rousseau,
780 F.3d 1108, 1112 (11th Cir. 2015) (citing Cordoba v. Dillard’s Inc., 419 F.3d 1169,
1181 (11th Cir. 2005) (“Speculation does not create a genuine issue of fact; instead, it
creates a false issue, the demolition of which is a primary goal of summary
judgment.”)).
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Additionally, a district court is only required to consider “the cited materials”
when deciding a summary judgment motion. Fed. R. Civ. P. 56(c)(3). While the court
also “may consider other materials in the record[,]” id., “[m]aking district courts dig
through volumes of documents and transcripts would shift the burden of sifting from
petitioners to the courts…[D]istrict court judges are not required to ferret out
delectable facts buried in a massive record,” Chavez v. Sec'y Fla. Dep't of Corr., 647
F.3d 1057, 1061 (11th Cir. 2011) (habeas corpus proceedings), and “ ‘[t]here is no
burden upon the district court to distill every potential argument that could be made
based on the materials before it on summary judgment. Rather, the onus is upon the
parties to formulate arguments; grounds alleged in the complaint but not relied upon
in summary judgment are deemed abandoned.’ ” Solutia, Inc. v. McWane, Inc., 672
F.3d 1230, 1239 (11th Cir. 2012) (per curiam) (quoting Resol. Tr. Corp., 43 F.3d at
599).
Pro se filings such as McCaskill’s are to be liberally construed. Erickson v.
Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007) (per curiam).
However, “this leniency does not give a court license to serve as de facto counsel for a
party, or to rewrite an otherwise deficient pleading in order to sustain an action.”
Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168–69 (11th Cir. 2014) (quotation
omitted). Moreover, “[d]espite construction leniency afforded pro se litigants, [courts]
have required them to conform to procedural rules.” Loren v. Sasser, 309 F.3d 1296,
1304 (11th Cir. 2002) (per curiam). See also Moon v. Newsome, 863 F.2d 835, 837
(11th Cir. 1989) (pro se litigants are “subject to the relevant law and rules of court,
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including the Federal Rules of Civil Procedure”). Therefore, “a pro se litigant does not
escape the essential burden under summary judgment standards of establishing that
there is a genuine issue as to a fact material to his case in order to avert summary
judgment.” Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990).
III. 	Facts on Summary Judgment
McCaskill, who is Black, started working in the Circuit Clerk’s Office for the
13th Judicial Circuit of Alabama (consisting of Mobile County) in April 2016, in the
Circuit Civil Division. (See Doc# 96-2 [Defendant’s SJ Ex. 2], PageID.557-558). At
that time, JoJo Schwarzauer was the Circuit Clerk, and Charles “Chuck” Lewis was
the supervisor in charge of the Circuit Civil Division. (Id.). Both are White.
On October 25, 2016, Lewis completed a “Performance Review/Evaluation,”
which McCaskill signed, noting that McCaskill’s “overall job performance has
improved 	significantly 	since 	[she] 	began” 	while 	listing 	“some 	objectives” 	for
improvement. (Id., PageID.558). In another performance review issued May 2, 2017,
which McCaskill signed, Lewis stated that while “there were some Improvements in
[McCaskill’s ] overall work performance[,] in the last two (2) months [her] accuracy
has declined[,]” and Lewis had “come across numerous errors.” (Id., PageID.562).
Lewis advised McCaskill that he was putting her “on a 90-day probationary period[,]”
during 	which 	her 	work 	would 	“be 	monitored 	with 	the 	expectation 	that 	[her]
performance/accuracy will improve drastically[,]” and set out certain objectives that
she “need[ed] to meet.” (Id., PageID.562-563). Lewis further advised that failure to
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bring her “overall performance in line with this expectation” would result in her being
“terminated.” (Id., PageID.563).6
By January 10, 2018, McCaskill had been promoted to Court Specialist I. (Doc#
96-1 [Defendant’s SJ Ex. 1],7 PageID.506-507). On September 6, 2018, Lewis issued
McCaskill a “Written Directive,” which she signed the same day, stating, among other
things, that processing a particular judge’s motions and orders “should always be a
priority[,]” 	and 	that 	she 	should 	check 	on 	motions 	and 	orders 	“several 	times
throughout the day.” (Id., PageID.508; Doc# 96-2, PageID.564). On March 11, 2019,
McCaskill was issued an “Employee Performance Evaluation” that ranked her
performance at the high end of “partially meets standards” (the second-lowest
ranking). (Doc# 96-2, PageID.565-566). Among other things, that evaluation scored
her “compliance with office rules” as unsatisfactory, and stated that she “needed to
work on [her] punctuality.” (Id.).
On June 25, 2020, Lewis issued a “Written Directive/Objective” to McCaskill,
which she signed, that set out “objectives and performance goals,” which included
6 In its motion for summary judgment, the Circuit Clerk’s Office blames McCaskill
for serving a non-party subpoena on an incorrect entity based on a November 10, 2016
email from a law firm paralegal. (See Doc# 96, PageID.482). However, the email does
not identify which Circuit Clerk’s Office employee handled the subpoena, no other
evidence identifying McCaskill as the culprit is cited, and “a sentence in an unsworn
brief is not evidence.” Travaglio v. Am. Exp. Co., 735 F.3d 1266, 1269 (11th Cir. 2013).
7 The Circuit Clerk’s Office’s Summary Judgment Exhibit 1 consists of excerpts of
deposition testimony given by Lewis and Tachonda Smith. (Doc# 96-1). In several
instances in its motion, the Circuit Clerk’s Office cites to pages of deposition
testimony that are not in the record, and the undersigned has disregarded factual
assertions based on these absent pages.
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“work[ing] on accuracy, in all areas…” (Id., PageID.571). It also noted that McCaskill
was “very good with Pro se litigants” but stated she should “be very careful in what
[she] sa[id] to them” and that she should “not let them pull [her] into their situation.”
(Id.). On October 7, 2020, Lewis sent McCaskill an email with the subject “Pro Se
litigants,” reminding her to “be very careful in dealing with ‘pro se’ litigants” and that,
“[a]s much empathy as we may feel for them,” office employees “must not get into the
case.” (Doc# 96-3, PageID.573). On December 23, 2020, Lewis engaged in an email
discussion with other office employees about McCaskill’s taking official files home in
violation of office policy. (Id., PageID.578-579; Doc# 96-1, PageID.511-512). Lewis
also separately emailed McCaskill asking her to “remember to bring files back” and
reminding her that “it is very important that any files leaving the office are brought
back.” (Doc# 96-3 [Defendant’s SJ Ex. 3], PageID.580).
On February 5, 2021, Lewis and Assistant Supervisor Jordan DuBose, a Court
Specialist II, held a meeting with McCaskill to discuss “the importance of processing
motions and orders in a timely manner, giving them priority over any other job duties.”
(Id., PageID.586). On March 11, 2021, Lewis and DuBose again met with McCaskill,
this time to discuss “that all checks coming into the Clerk’s Office must be receipted
within 48 hours of coming into the office[,]” and “to check the requests for Writs as
they come in, to determine” what kind they were. (Id., PageID.587). Lewis also
mentioned that McCaskill had failed to scan an issued writ into Alacourt, despite
previous oral instruction to do so, and warned that “should this happen again much
stronger disciplinary action will result.” (Id.). On March 23, 2021, Lewis and DuBose
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met with McCaskill once more, again stressing “the importance of timely processing
orders” and making sure that writs of execution were issued against the correct
parties. (Id., PageID.589).
On April 5, 2021, Lewis issued McCaskill a written warning for her failure to
turn in a bank bag of receipted funds on March 31, 2021, instead leaving it locked in
her desk drawer. (Id., PageID.599). The written warning stated that the “incorrect
handling of funds is a serious violation of Board of Examiners of Public Accounts;
Alabama Department of Finance, Division of Risk Management; and Clerk’s Office
policies[,]” and advised that “further violations of this policy will result in further
disciplinary action.” (Id.). McCaskill signed the written warning but included a
handwritten notation stating that she did “not agree with this write-up[,]” claiming
she was only told the bank bag had to be locked up. (Id.). McCaskill also emailed
Lewis disputing the write-up. (Id., PageID.601). On April 15, 2021, DuBose emailed
Lewis to inform him that she had to correct one of McCaskill’s deposit slips. (Id.,
PageID.604).
On May 20, 2021, Schwarzauer, the Circuit Clerk, emailed Lewis and DuBose
directing them to restrict McCaskill’s access to Circuit Civil only, and to “[m]ake sure
she does not have add/delete.” (Doc# 96-4 [Defendant’s SJ Ex. 4], PageID.605). On
May 27, 2021, Lewis and DuBose met with McCaskill and another employee, Lisa
Bryant, to “discuss a series of heated exchanges between them on Monday, May 24,
2021.” (Id., PageID.607). In a June 4, 2021 memorandum, Lewis documented
concerns from an attorney that McCaskill had given a pro se defendant “incorrect
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information” “on at least one occasion,” and that McCaskill “may be deliberately
making errors of the Writs of Possession, to give the tenants extra time to stay on the
premises.” (Id., PageID.608). That memorandum also stated that Schwarzauer had
directed DuBose and Lewis to tell McCaskill that she was to have “no contact[] with
any pro se litigants.” (Id.). On June 10, 2021, Lewis wrote a memorandum to
McCaskill again warning her “to NOT get caught up in ‘pro se’ litigants situation [sic]”
and that she could eventually cross the line into giving legal advice, which could
result in the loss of her job. (Id., PageID.614).
On June 29, 2021, DuBose emailed Lewis letting him know that a pro se
litigant had called looking for McCaskill, saying “she’s been in touch with” McCaskill
and that she “advised her to do something[,]” (id., PageID.618), despite McCaskill
having been admonished not to have contact with pro se parties. (Doc# 96-1,
PageID.517). On August 4, 2021, an attorney emailed DuBose advising of issues he’d
had with McCaskill, stating that he felt “singled out by [McCaskill] and treated poorly
by her and ultimately have had [his] cases negatively affected by her actions.” (Doc#
96-4, 	PageID.626). 	On 	September 	28, 	2021, 	Lewis 	signed 	a 	memorandum
documenting 	issues 	with 	McCaskill’s 	performance 	and 	recommending 	she 	be
transferred to another division of the Circuit Clerk’s Office. (Id., PageID.629-631).
On October 1, 2021, McCaskill began working in the Domestic Relations
Division of the Circuit Clerk’s Office, under the supervision of Tachonda Smith. (Doc#
96-1, PageID.518-519). By December 2021, Smith noted that McCaskill was “making
a lot of errors and mistakes” and told her that she expected improvement within 30
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days. (Id., PageID.520). On December 10, 2021, a judicial assistant emailed Smith to
let her know that “it look[ed] like [McCaskill] had marked [an item on the docket]
wrong.” (Doc# 96-5 [Defendant’s SJ Ex. 5], PageID.640).
On March 16, 2022, McCaskill filed her charge of discrimination underlying
this 	action 	with 	the 	Equal 	Employment 	Opportunity 	Commission. 	(Doc# 	1-1).
McCaskill was issued a warning for arriving late on March 30, 2022. (Doc# 96-6
[Defendant’s SJ Ex. 6], PageID.651-653). On April 12, 2022, an internal auditor for
the 13th Judicial Circuit emailed McCaskill about errors she made in counting money
and writing receipts. (Id., PageID.683). On April 20, 2022, Smith wrote an employee
counseling record documenting further issues with McCaskill’s performance. (Id.,
PageID.695-696). In an Employee Performance Evaluation covering April 25, 2021,
through April 25, 2022, McCaskill again scored in the range of “partially meets
standards.” 	(Id., 	PageID.705). 	On 	May 	4, 	2022, 	Smith 	completed 	a 	follow-up
counseling record from the April 20 counseling, noting ways in which Smith expected
to see improvement “within the next two weeks.” (Id., PageID.720-727). On May 12,
2022, 	Smith 	wrote 	another 	Employee 	Counseling 	Record 	regarding 	McCaskill
making disparaging comments about Smith in front of a customer. (Id., PageID.729-
730).
In an August 4, 2022 “disciplinary action,” the internal auditor set out a
number of “errors with [McCaskill’s] daily transactions and accuracy with [her]
depositions.” (Id., PageID.741-742). Evaluation covering June 7 through September
7, 2022, McCaskill’s overall performance score dropped from 13.33 to 9.83 (though
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keeping her in the “partially meets standards” range), finding her “compliance with
Office Rules” to be unsatisfactory. (Id., PageID.735).
Ultimately, Smith terminated McCaskill effective September 8, 2022, with
Smith providing the following written reasons:
I have concluded at the end of your 90-day probationary period that your
performance and quality does not meet the requirements of a Court
Specialist. You were given notice in areas you needed to improve and
how 	important 	you 	pay 	attention 	to 	the 	details 	of 	your 	job 	was
imperative. Since June 2022 evaluation, the performance and quality
problems continued. You were given written reminders of the need for
improvements. Since that evaluation, it has become apparent that your
job performance simply is not consistent with the requirements of your
position.
(Doc# 96-7, PageID.749-750).
McCaskill 	disputed 	that 	assessment, 	asserting 	her 	“job 	performance 	is
wonderful.” (Id., PageID.749).
IV. 	Analysis
a. The Proper Defendant
The Court has expended significant time and effort attempting to determine
who McCaskill’s “employer” was for purposes of her Title VII claims, and thus who
the proper defendant is. McCaskill’s EEOC charge of discrimination giving rise to the
present lawsuit named her employer as the “13th Judicial Circuit Court of Alabama
Civil Division,” (Doc# 1-1, PageID.2), her initial complaint named that entity as the
sole defendant (Doc# 1, PageID.1), and her first amended complaint named “The 13th
Judicial Circuit Court of Alabama” as a defendant (Doc# 24, PageID.80). The 13th
Judicial Circuit Court moved to dismiss both the initial and first amended complaint
on the grounds that the “Mobile County Circuit Clerk’s Office” was McCaskill’s actual
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employer. (See Docs# 17,8 19, 27).9 In the Report and Recommendation on the motion
to dismiss the first amended complaint, the undersigned, after engaging in extensive
analysis of the issue, agreed that the Office was the entity properly considered her
employer for purposes of her Title VII claims, and accordingly recommended that the
13th Judicial Circuit Court’s motion to dismiss be granted, subject to McCaskill
having the opportunity to allege that the 13th Judicial Circuit Court should be
considered either a “single” or “joint employer” with the Office for purposes of Title
VII. No party objected to that recommendation, the Court later adopted it in full (see
Doc# 42), McCaskill’s subsequent complaints have named the Circuit Clerk’s Office
as the sole defendant to her Title VII claims, and the Circuit Clerk’s Office filed
answers (Docs# 52, 67) to both, identifying itself in each as “Defendant Office of the
Circuit Clerk for the 13th Judicial Circuit.” Notably, no other individual or entity has
answered or otherwise responded to the second or third amended complaint. The lone
remaining defendant continued to identify itself as “Office of the Circuit Clerk of the
13th Judicial Circuit Court of Alabama” in filings as late as a July 8, 2024. (See Docs#
84, 85).
However, in its present motion for summary judgment, the lone Defendant has
now quietly returned to identifying itself as the “13th Judicial Circuit Court of
Alabama,” and now claims that McCaskill “is a former employee of the Alabama
Unified Judicial System (UJS), in the Thirteenth Circuit, a division within the
8 The 13th Judicial Circuit Court’s first motion to dismiss (Doc# 17) was so deficient
in its analysis that the undersigned sua sponte directed that it supplement its motion
with additional points and authorities. (See Doc# 18).
9 It should be noted that, after briefing on the 13th Judicial Circuit Court’s motion to
dismiss the first amended complaint closed, the Circuit Clerk’s Office separately filed
an answer to the first amended complaint on March 20, 2023. (Doc# 36).
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Alabama Administrative Office of Courts (AOC).” (Doc# 96, PageID.481-4820. It
would appear, then, that McCaskill actually did name the correct entity as the
defendant in her initial complaint, despite the 13th Judicial Circuit Court arguing in
two Rule 12(b)(6) motions to dismiss that she did not, and the Court’s prior acceptance
of that argument. The lone Defendant fails to explain this change in position, and
why it was not brought to the Court’s attention by a separate motion to substitute.
b. Title VII Racial Discrimination
“Title VII of the Civil Rights Act of 1964 outlaws employment discrimination
because of ‘race, color, religion, sex, or national origin.’ ” Tynes v. Fla. Dep't of Juv.
Just., 88 F.4th 939, 943 (11th Cir. 2023) (quoting 42 U.S.C. § 2000e-2(a)(1)).
McCaskill’s 	operative 	complaint 	(Doc# 	64), 	and 	her 	underlying 	charge 	of
discrimination submitted to the Equal Employment Opportunity Commission, only
claim discrimination based on race.
“Discrimination claims brought under Title VII may be pursued under a
‘single-motive’ theory—in which the employee alleges that unlawful bias was ‘the true
reason’ for an adverse employment action, Quigg v. Thomas Cnty. Sch. Dist., 814 F.3d
1227, 1235 (11th Cir. 2016)—or a ‘mixed-motive’ theory—in which she alleges that
bias was simply ‘a motivating factor’ for the adverse action, ‘even though other factors
also motivated the practice,’ 42 U.S.C. § 2000e–2(m) (emphasis added).” Phillips v.
Legacy Cabinets, 87 F.4th 1313, 1321 (11th Cir. 2023). Discrimination claims under
both theories “can be established with either direct or circumstantial evidence.”
Quigg, 814 F.3d at 1235. “Direct evidence of discrimination is evidence that reflects
a discriminatory…attitude correlating to the discrimination…complained of by the
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employee, and, if believed, proves the existence of a fact without inference or
presumption.” Ossmann v. Meredith Corp., 82 F.4th 1007, 1015 (11th Cir. 2023)
(quotation omitted). However, “[t]his is a rigorous standard[,]” and courts “accept only
the most blatant remarks, such as a management memorandum saying, ‘Fire
Earley—he is too old,’ as direct evidence. If the alleged statement suggests, but does
not prove, a discriminatory motive, then it is circumstantial evidence.” Id. (citations
and quotations omitted). Accord, e.g., Quigg, 814 F.3d at 1236 (“Here, Quigg’s claims
are based on circumstantial evidence—the evidence suggests, but does not prove, a
discriminatory motive.” (quotation omitted)).
“Where…an 	employee 	bases 	her 	single-motive 	discrimination 	claim 	on
circumstantial evidence, [courts] generally apply the McDonnell Douglas burden-
shifting framework[,]” so named because it was first set out in McDonnell Douglas
Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Phillips,
87 F.4th at 1321.
Under the McDonnell Douglas framework, a plaintiff asserting a race
discrimination claim under either statute must show that: (1) she
belongs to a protected class; (2) she was qualified to do the job; (3) she
was subjected to adverse employment action; and (4) her employer
treated similarly-situated employees outside her class more favorably.
McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. 1817; Lewis v. City of
Union City, 918 F.3d 1213, 1220-21 (11th Cir. 2019) (“Lewis I”) (en
banc); Knight v. Baptist Hosp. of Mia., Inc., 330 F.3d 1313, 1316 (11th
Cir. 2003) (per curiam). If the plaintiff succeeds in making out a prima
facie case, the burden shifts to the employer to articulate a legitimate,
non-discriminatory reasons for its actions.[10] Tex. Dep't of Cmty. Affairs
10 “The defendant need not persuade the court that it was actually motivated by the
proffered reason, but need only present evidence raising a genuine issue of fact as to
whether it discriminated against the plaintiff. However, the defendant’s response
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v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981);
Lewis I, 918 F.3d at 1221. If, at summary judgment, an employer meets
its 	burden 	of 	articulating 	a 	non-discriminatory 	reason 	for 	any
purportedly adverse action, “to avoid summary judgment [the plaintiff]
must 	introduce 	significantly 	probative 	evidence 	showing 	that 	the
asserted reason is merely a pretext for discrimination.” Clark v. Coats
& Clark, Inc., 990 F.2d 1217, 1228 (11th Cir. 1993). A reason is not
pretext for 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).
Poer v. Jefferson Cnty. Comm'n, 100 F.4th 1325, 1336 (11th Cir. 2024).
Generally, “[t]o establish the fourth [McDonnell Douglas] prong, the plaintiff
must present evidence of a comparator—someone who is ‘similarly situated in all
material respects.’ ” Jenkins v. Nell, 26 F.4th 1243, 1249 (11th Cir. 2022) (quoting
Lewis, 918 F.3d at 1224). “[T]he plaintiff and her comparators need not be similar in
all but the protected ways. A plaintiff needn’t prove, therefore, that she and her
comparators are identical save for their race or gender, as the case may be…Nor is it
necessary for a plaintiff to prove purely formal similarities—e.g., that she and her
comparators had precisely the same title. Nor will minor differences in job function
disqualify a would-be comparator.” Lewis, 918 F.3d at 1227 (citations and quotation
omitted). “Although what constitutes a ‘material’ similarity or difference will differ
from case to case, ordinarily a similarly situated comparator and the plaintiff will:
have engaged in the same basic conduct or misconduct, be subject to the same
must frame the factual issue with sufficient clarity so that the plaintiff will have a
full and fair opportunity to demonstrate pretext.” Alvarez v. Royal Atl. Devs., Inc.,
610 F.3d 1253, 1265 (11th Cir. 2010) (citation and quotation omitted).
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employment policies, have the same supervisor(s), and share an employment or
disciplinary history.” Jenkins, 26 F.4th at 1249 (citing Lewis, 918 F.3d at 1227-28).
“[A] valid comparison will turn not on formal labels, but rather on substantive
likenesses…[A] plaintiff and her comparators must be sufficiently similar, in an
objective sense, that they cannot reasonably be distinguished.” Lewis, 918 F.3d at
1228 (quotation omitted). As the Eleventh Circuit has recognized, “[a]n all-material-
respects 	standard…leaves 	employers 	the 	necessary 	breathing 	space 	to 	make
appropriate business judgments[, and also] serves the interest of sound judicial
administration by allowing for summary judgment…where the comparators are
simply too dissimilar to permit a valid inference that invidious discrimination is
afoot.” Id. at 1228–29.
However, the McDonnel Douglas framework “is only one method or evidentiary
tool by which a plaintiff can prove discrimination by circumstantial evidence. A
plaintiff who cannot satisfy the McDonnell Douglass [sic] framework may still be able
to prove her case with a convincing mosaic of circumstantial evidence that would
allow a reasonable jury to infer or find intentional racial discrimination in an adverse
employment 	action.” 	Id. 	at 	1336–37 	(citation 	omitted). 	Accord, 	e.g., 	Smith 	v.
Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (“A triable issue of fact
exists if the record, viewed in a light most favorable to the plaintiff, presents a
convincing mosaic of circumstantial evidence that would allow a jury to infer
intentional discrimination by the decisionmaker.”). See also Phillips, 87 F.4th at 1327
(“[B]ecause the mixed-motive theory does not depend on proof of a single, ‘true reason’
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for an adverse action, an employee relying on circumstantial evidence is not required
to satisfy the McDonnell Douglas burden-shifting framework. Instead, she can
survive summary judgment simply by producing evidence sufficient to convince a jury
that: (1) the defendant took an adverse employment action against the plaintiff and;
(2) a protected characteristic was a motivating factor for the defendant's adverse
employment action.” (citation and quotations omitted)).
“At all times, the plaintiff retains ‘the ultimate burden of persuading the court
that she has been the victim of intentional discrimination.” Flowers v. Troup Cnty.,
Ga., Sch. Dist., 803 F.3d 1327, 1336 (11th Cir. 2015) (quoting Burdine, 450 U.S. at
256). See also Lewis, 918 F.3d at 1223 (“effectively shift[ing] to the defendant the
burden 	of disproving discrimination…is 	precisely 	what 	the 	Supreme 	Court 	has
forbidden” (citing Burdine, 450 U.S. at 253, 254–58)). Thus, at summary judgment,
regardless of how a Title VII plaintiff attempts to show discrimination, “[t]he critical
decision that must be made is whether the plaintiff has ‘create[d] a triable issue
concerning the employer’s discriminatory intent.’ ” Flowers, 803 F.3d at 1336 (quoting
Smith, 644 F.3d at 1328).
Despite the Circuit Clerk’s Office setting out the foregoing standards in its
motion, McCaskill’s summary judgment briefing does not make clear whether she is
relying 	on 	direct 	evidence, 	circumstantial 	evidence, 	or 	both 	to 	show 	racial
discrimination. She cites a laundry list of instances in which she believes she was
treated harshly or unfairly by her superiors during her tenure at the Circuit Clerk’s
Office. However, McCaskill has pointed no statement so “blatant” that it can be
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considered “direct evidence” of racial discrimination. She has also failed to make out
a prima facie case of race discrimination under the McDonnell Douglas framework,
as nowhere in her summary judgment briefing does she specifically identify any non-
Black employee who was treated differently than her, much less show that she and
the employee were “similarly situated.”11 At most, McCaskill claims that no other
employee was subject to certain actions or conditions (see Doc# 106, PageID.991, 994;
Doc# 107, PageID.1050, 1054; Doc# 115, PageID.1230, 1233), and that she “was held
to a separate set of rules…” (Doc# 106, PageID.995). 12 	However, absent any
indication that McCaskill was the only Black employee at the Circuit Clerk’s Office
while she was there—which she has not claimed, much less presented evidence of—
these conclusory assertions fall short of showing that McCaskill “was treated less
11 In her operative complaint, McCaskill identifies “Jordan Dubose, Beth Lee and
Lisa 	Bryant 	(3 	Caucasian 	ladies)” 	as 	comparators 	who 	Lewis 	“trained 	and
promoted…over” McCaskill. (Doc# 57, PageID.308). However, McCaskill does not rely
on Lee in her briefing on summary judgment, and is thus deemed to have abandoned
them as proposed comparators. See Resol. Tr. Corp., 43 F.3d at 599 (“In opposing a
motion for summary judgment, a party may not rely on his pleadings to avoid
judgment against him[,]” and “grounds alleged in the complaint but not relied upon
in summary judgment are deemed abandoned” (quotation omitted)). Moreover, while
McCaskill’s summary judgment briefing repeats the assertion that Dubose and
Bryant were promoted over her (see Doc# 115, PageID.1232-1233), she has cited no
evidence to support this claim, and, as was previously noted, “a sentence in an
unsworn brief is not evidence.” Travaglio, 735 F.3d at 1269.
12 In identifying one instance of supposed unfair treatment, McCaskill claims she
“spoke with several colleagues and…was made aware that no other employee was
done this way.” (Doc# 106, PageID.991). McCaskill, however, “did not offer any
affidavits 	or 	deposition 	testimony 	from 	[those 	unnamed 	colleagues, 	and 	h]er
testimony about what she heard secondhand is inadmissible hearsay, which cannot
be used to defeat summary judgment.” Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253,
1268 n.10 (11th Cir. 2010).
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favorably than ‘similarly situated’ individuals outside her class.” Lewis, 918 F.3d at
1224.
Even assuming McCaskill has, or could, establish a prima facie case, the
Circuit 	Clerk’s 	Office 	has 	met 	its 	burden 	of 	articulating 	legitimate, 	non-
discriminatory reasons for its actions—McCaskill’s unsatisfactory work history—and
McCaskill has failed to rebut those reasons as pretext. Once an employer meets its
burden of articulating a legitimate non-discriminatory reason for its actions, “[t]he
burden then shifts back to the plaintiff to show that the employer’s proffered reason
was not its true reason, which merges with the plaintiff's ultimate burden of
persuading the court that the employer intentionally discriminated against her.”
Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1265 (11th Cir. 2010).
To 	show 	pretext, 	[a 	Title 	VII 	plaintiff] 	must 	demonstrate 	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. A plaintiff is not allowed to recast an employer's proffered
nondiscriminatory reasons or substitute her business judgment for that
of the employer. Provided that the proffered reason is one that might
motivate a reasonable employer, an employee must meet that reason
head on and rebut it, and she cannot succeed by simply quarreling with
the wisdom of that reason.
Id. at 1265–66 (citation and quotations omitted).
Like the plaintiff in Alvarez, McCaskill “argues at length that [her supervisors’]
complaints about the quality of her work were unfounded, but the fact that she thinks
more highly of her performance than her employer does is beside the point. The
inquiry into pretext centers on the employer's beliefs, not the employee's beliefs and,
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to be blunt about it, not on reality as it exists outside of the decision maker's head.”
Id. at 1266. “The question is whether her employers were dissatisfied with her
for…non-discriminatory reasons, even if mistakenly or unfairly so, or instead merely
used those complaints about [McCaskill] as cover for discriminating against her
because of her [race].” Id. See also id. at 1267 (“Alvarez's burden is to show not just
that Royal Atlantic’s proffered reasons for firing her were ill-founded but that
unlawful discrimination was the true reason.”); Phillips, 87 F.4th at 1325 (“It is not
enough...for Phillips to prove that Legacy is lying about the true reason for her
termination; to escape summary judgment, she must produce sufficient evidence for
a reasonable jury to find that the true reason was discrimination.”).
As the United States Supreme Court has made clear, Title VII is not to be
treated as “a general civility code.” Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 81, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998). Its protections “do not extend to
everything that makes an employee unhappy[,]” Davis v. Town of Lake Park, Fla.,
245 F.3d 1232, 1242 (11th Cir. 2001) (quotation marks omitted), overruled on other
grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405,
165 L. Ed. 2d 345 (2006)), or to “the ordinary tribulations of the workplace…”
Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 141 L. Ed. 2d 662
(1998) (quotation omitted). See also Tonkyro v. Sec'y, Dep't of Veterans Affs., 995 F.3d
828, 837 (11th Cir. 2021) (“’Title VII does not prohibit profanity alone, however
profane ... [nor] harassment alone, however severe and pervasive. Instead, Title VII
prohibits 	discrimination, 	including 	harassment 	that 	discriminates 	based 	on 	a
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protected category such as sex.’” (quoting Baldwin v. Blue Cross/Blue Shield of Ala.,
480 F.3d 1287, 1301–02 (11th Cir. 2007)).
Courts also “must be careful not to allow Title VII plaintiffs simply to litigate
whether they are, in fact, good employees.” Rojas v. Fla., 285 F.3d 1339, 1342 (11th
Cir. 2002) (per curiam). Courts “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).
See also Alvarez, 610 F.3d at 1266 	(“Title VII does not require the employer’s needs
and expectations to be objectively reasonable; it simply prohibits the employer from
discriminating on the basis of membership in a protected class.”); Flowers, 803 F.3d
at 1330 (“Title VII functions only as a bulwark against unlawful discrimination; it
does 	not 	substitute 	the 	business 	judgment 	of 	federal 	courts 	for 	any 	other
nondiscriminatory reason.”); Rojas, 285 F.3d at 1342 (“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.”). “Put frankly, [under Title VII] employers are free to
fire their employees for a good reason, a bad reason, a reason based on erroneous
facts, or for no reason at all, as long as its action is not for a discriminatory reason.”
Flowers, 803 F.3d at 1338 (quotation omitted). See also Wallace v. SMC Pneumatics,
Inc., 103 F.3d 1394, 1399 (7th Cir. 1997) (“The true reason for the action of which the
plaintiff is complaining might be something embarrassing to the employer, such as
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nepotism, personal friendship, the plaintiff’s being a perceived threat to his superior,
a mistaken evaluation, the plaintiff’s being a whistleblower, the employer’s antipathy
to irrelevant but not statutorily protected personal characteristics, a superior officer’s
desire to shift blame to a hapless subordinate[,] or even an invidious factor but not
one outlawed by the statute under which the plaintiff is suing; or the true reason
might be unknown to the employer; or there might be no reason.” (quoted favorably
in Alvarez, 610 F.3d at 1266-67)).
Courts simply “do not sit as a ‘super-personnel department,’ and it is not our
role to second-guess the wisdom of an employer's business decisions—indeed the
wisdom of them is irrelevant—as long as those decisions were not made with a
discriminatory motive. That is true ‘[n]o matter how medieval a firm’s practices, no
matter how high-handed its decisional process, no matter how mistaken the firm’s
managers.’ ” Alvarez, 610 F.3d at 1266 (citation omitted) (quoting Chapman v. AI
Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc)). See also Nix v. WLCY
Radio/Rahall Commc'ns, 738 F.2d 1181, 1187 (11th Cir. 1984), abrogated on other
grounds by Lewis v. City of Union City, Ga., 918 F.3d 1213, 1220–21 (11th Cir. 2019)
(en banc) (“Title VII does not take away an employer’s right to interpret its rules as
it chooses, and to make determinations as it sees fit under those rules…Nor does the
statute require the employer to have good cause for its decisions.”).
Ultimately, even accepting as true for present purposes that McCaskill was
treated unfairly by her supervisors, she has failed to cite substantial evidence in the
record indicating that any of her superiors’ actions were motivated by McCaskill’s
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race. See Tonkyro, 995 F.3d at 837 (“a [Title VII] plaintiff must show that the
[challenged] actions were based on [a protected characteristic] rather than some other
unprotected characteristic”); Flowers, 803 F.3d at 1330 (“Flowers, though he has
produced sufficient evidence that could lead a reasonable jury to infer that he was
treated unfairly, has failed to produce any evidence suggesting that his treatment
was on account of his race. When we hack back the thicket of factual disputes and
excise Flowers’s conclusory allegations, we are left with nothing more than a routine
disagreement between employer and employee.” (footnote omitted)). Even if, ask
McCaskill believes, she was singled out for such treatment and “was held to a
separate set of rules when…told that [she] made mistakes” (Doc# 106, PageID.995),
she has failed to show such differential treatment was based on her race, as opposed
to 	her 	bosses’ 	“antipathy 	to 	irrelevant 	but 	not 	statutorily 	protected 	personal
characteristics,…or even an invidious factor but not one outlawed by” Title VII.
Wallace, 103 F.3d at 1399. 13 	McCaskill’s “subjective conclusion that [she was
discriminated against], without supporting evidence, [i]s insufficient to establish
pretext. ‘[C]onclusory allegations of discrimination, without more, are not sufficient
to raise an inference of pretext or intentional discrimination where [an employer] has
offered ... extensive evidence of legitimate, non-discriminatory reasons for its actions.’
” Carter v. City of Miami, 870 F.2d 578, 585 (11th Cir. 1989) (quoting Young v. Gen.
13 For instance, McCaskill claims that Lewis was “angry” with her because she
“wanted to learn certain things in his division and also [she] saw him allowing
unethical things between certain attorneys and the public.” (Doc# 115, PageID.1226).
Neither of those reasons implicates McCaskill’s race.
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Foods Corp., 840 F.2d 825, 830 (11th Cir. 1988)).
For these reasons, summary judgment is due to be GRANTED in favor of the
Circuit Clerk’s Office on McCaskill’s claims of Title VII racial discrimination in Count
I of her operative complaint.
c. 	Title VII Retaliation
“Title VII's anti-retaliation provision makes it unlawful for an employer to
discriminate against an employee ‘because he has opposed any practice made an
unlawful employment practice by this subchapter, or because he has made a charge,
testified, assisted, or participated in any manner in an investigation, proceeding, or
hearing under this subchapter.’ ” Alvarez, 610 F.3d at 1268 (quoting 42 U.S.C. §
2000e-3(a)). See also Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1257–58
(11th Cir. 2012) (“Retaliation against an employee who engages in statutorily
protected activity is barred under…Title VII…”). “A Title VII retaliation claim based
on circumstantial evidence, like the claim asserted by [McCaskill] here, is ordinarily
analyzed under the McDonnell Douglas burden-shifting framework.” Tolar v. Bradley
Arant Boult Commings, LLP, 997 F.3d 1280, 1289 (11th Cir. 2021)
Under 	that 	framework—a 	variation 	on 	the 	McDonnell 	Douglas
framework [for circumstantial race-discrimination claims]—a plaintiff
may establish a prima facie case of retaliation by showing (1) she
participated in an activity that Title VII protects; (2) she suffered an
adverse personnel action; and (3) a causal relationship exists between
her protected activity and the adverse personnel action. Crawford v.
Carroll, 529 F.3d 961, 970 (11th Cir. 2008). If the plaintiff makes out a
prima facie case, the burden falls on the employer to state a legitimate,
non-retaliatory reason for the challenged personnel action. Pennington
v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). If the
employer satisfies that burden, the plaintiff must carry the ultimate
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burden of proving that the employer's stated reason is pretext for
retaliation. Id.
Buckley v. Sec'y of Army, 97 F.4th 784, 798 (11th Cir. 2024).
The only Title VII-protected activity McCaskill apparent from the record is
McCaskill’s filing her EEOC charge on March 16, 2022. While she also cites
complaints to her superiors about her seemingly unfair treatment, she has pointed to
no evidence indicating that these complaints were presented as claims of disparate
treatment on the basis of race or some other protected factor under Title VII. “Close
temporal proximity between protected conduct and an adverse employment action is
generally ‘sufficient circumstantial evidence to create a genuine issue of material fact
of a causal connection.’ ” Hurlbert v. St. Mary's Health Care Sys., Inc., 439 F.3d 1286,
1298 (11th Cir. 2006) (quoting Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791,
799 (11th Cir. 2000)). “But mere temporal proximity, without more, must be ‘very
close.’ ” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (per
curiam) (quoting Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S. Ct.
1508, 1511, 149 L. Ed. 2d 509 (2001) (internal citations omitted)). “[I]n the absence of
other evidence tending to show causation, if there is a substantial delay between the
protected expression and the adverse action, the complaint of retaliation fails as a
matter of law.” Id. “A three to four month disparity between the statutorily protected
expression and the adverse employment action is not enough.” Id. (citing Clark
County Sch. Dist., 532 U.S. at 273). Here, McCaskill was terminated almost 6 months
after filing her EEOC charge, and she has failed to cite any other evidence supporting
a causal connection between that charge and her termination, the retaliatory events
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she complains of that occurred after her termination or indeed any action by her
supervisors.
And even if McCaskill could make out a prima facie case of retaliation, the
Circuit Clerk’s Office has articulated legitimate, non-retaliatory reasons for firing
her—again, McCaskill’s unsatisfactory work history—and McCaskill has failed to
rebut those reasons as pretextual for unlawful retaliation. The Eleventh Circuit has
repeatedly emphasized that provided the proffered reason is one that
might motivate a reasonable employer, an employee must meet that
reason head on and rebut it. Thus, to establish pretext at the summary
judgment 	stage, 	a 	plaintiff 	must 	demonstrate 	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. A reason is not pretext
for retaliation unless it is shown both that the reason was false, and that
retaliation was the real reason. And…in determining whether the
plaintiff has met her burden to show pretext, [courts]remain mindful
that it is the plaintiff’s burden to provide evidence from which one could
reasonably conclude that but for her alleged protected act, her employer
would not have fired her.
Gogel v. Kia Motors Mfg. of Georgia, Inc., 967 F.3d 1121, 1136 (11th Cir. 2020) (en
banc) (citations and quotations omitted).
Much like with her claims of racial discrimination, McCaskill largely attempts
“to recast [her former] employer’s proffered nondiscriminatory reasons[,] substitute
h[er] business judgment for that of the employer, and simply quarrel[] with the
wisdom of that reason[,]” none of which succeeds in showing pretext. Chapman, 229
F.3d at 1030. Again, “[t]o be clear, the role of this Court is to prevent unlawful [Title
VII] practices, not to act as a super personnel department that second-guesses
employers’ business judgments. Our sole concern is whether unlawful discriminatory
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[or retaliatory] animus motivates a challenged employment decision. Whether an
employee’s conduct was insubordinate is not an issue for this Court to referee. An
employer may fire an employee for a good reason, a bad reason, a reason based on
erroneous facts, or for no reason at all, as long as its action is not for a discriminatory
or retaliatory reason.” Gogel, 967 F.3d at 1148 (citation and quotations omitted). At
the very least, McCaskill has failed to cite substantial evidence showing that
unlawful retaliation was the true reason for any of her supervisors’ actions.
For these reasons, summary judgment is also due to be GRANTED in favor of
the Circuit Clerk’s Office on McCaskill’s claims of Title VII retaliation in Count II of
her operative complaint, and this action is therefore due to be DISMISSED with
prejudice.
d. Motion to Strike
The Circuit Clerk’s Office has moved to strike the deposition testimony of
Dorian Money submitted by McCaskill in her summary judgment briefing, arguing
that use of that testimony by McCaskill was forbidden by the Court’s order entered
August 28, 2024 (Doc# 95). However, McCaskill has not made clear the significance
of any of that testimony in her briefing, and its consideration does not change the
results recommended above. Accordingly, the motion to strike (Doc# 105) is due to be
found MOOT.
V. 	Conclusion
In accordance with the foregoing analysis, the undersigned RECOMMENDS
as follows:
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1. 	that the Circuit Clerk’s Office’s October 11, 2024 motion to strike one of
McCaskill’s evidentiary submissions (Doc# 105) be found MOOT;
2. 	that the Circuit Clerk’s Office’s motion for summary judgment filed September
16, 2024 (Doc# 96) be GRANTED such that McCaskill’s claims in this action
be 	DISMISSED 	with 	prejudice, 	and 	that 	final 	judgment 	be 	entered
accordingly under Federal Rule of Civil Procedure 58; and
3. 	that, to the extent McCaskill has also moved for summary judgment on any
issue, such motion be DENIED.
NOTICE OF RIGHT TO FILE OBJECTIONS
A copy of this report and recommendation shall be served on all parties in the
manner provided by law. Any party who objects to this recommendation or anything
in it must, within 14 days of the date of service of this document, file specific written
objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b);
S.D. Ala. GenLR 72(c). The parties should note that under Eleventh Circuit Rule 3-1,
“[a] party failing to object to a magistrate judge's findings or recommendations
contained in a report and recommendation in accordance with the provisions of 28
U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order
based on unobjected-to factual and legal conclusions if the party was informed of the
time period for objecting and the consequences on appeal for failing to object. In the
absence of a proper objection, however, the court may review on appeal for plain error
if necessary in the interests of justice.” 11th Cir. R. 3-1. In order to be specific, an
objection must identify the specific finding or recommendation to which objection is
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made, state the basis for the objection, and specify the place in the Magistrate Judge’s
report and recommendation where the disputed determination is found. An objection
that merely incorporates by reference or refers to the briefing before the Magistrate
Judge is not specific.
DONE this the 11th day of July 2025.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE
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