Sharon Bailey v. Board of Regents of University System of Georgia

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11225
Non-Argument Calendar
____________________
SHARON BAILEY,
Plaintiff-Appellant,
versus
BOARD OF REGENTS OF UNIVERSITY SYSTEM OF
GEORGIA,
d.b.a. Clayton State University,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:18-cv-05145-JPB
____________________
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2 Opinion of the Court 21-11225
Before L UCK , LAGOA , and J ULIE C ARNES, Circuit Judges.
PER CURIAM:
Plaintiff appeals the district court’s order granting summary
judgment to Defendant on her claims for race discrimination, sex
discrimination, and retaliation under Title VII of the Civil Rights
Act of 1964, disability discrimination under the Americans with
Disabilities Act (“ADA”), and age discrimination under the Age
Discrimination in Employment Act (“ADEA”). After a careful re-
view of the record and the briefing submitted by the parties, we
affirm.
BACKGROUND
This case arises from the termination of Plaintiff’s employ-
ment as a custodian for Clayton State University (“CSU”) in August
2017. CSU is a public college that is part of the University System
of Georgia, which is overseen by Defendant, the Board of Regents
of the University System of Georgia.1 Plaintiff, an African Ameri-
can female, worked as a custodian for CSU from January 1991 until
her employment was terminated in August 2017. Plaintiff was 51
1 The Magistrate Judge’s Report and Recommendation (“R&R”) contains a
detailed recitation of the underlying facts of this case. To the extent Plaintiff
did not object to the facts as set out in the R&R, we have relied on those facts
in describing the background of this case. As to any objected-to facts, we have
construed the evidence and resolved any material disputed facts in the light
most favorable to Plaintiff.
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21-11225 Opinion of the Court 3
years old and allegedly disabled with a sleep disorder at the time of
her termination.
Plaintiff began her employment with CSU in 1991 as a Cus-
todian I in the Building Services department. Her duties in that
position included providing cleaning and custodial services for
CSU’s buildings, classrooms, and other facilities. Plaintiff held the
Custodian I position until 2016, when she was reclassified from
Custodian I to Custodian II. Plaintiff received a salary increase as a
result of the reclassification, but her job duties remained the same.
Plaintiff held the Custodian II position until Defendant terminated
her employment in 2017.
In February 2016, Charles Bridges was hired as Assistant Di-
rector of CSU’s Building Services department. To save energy,
Bridges changed the schedule of Building Services employees from
three shifts to two shifts, the first of which ran from 4:00 a.m. to
1:00 p.m. and the second of which ran from 1:00 p.m. until 10:00
p.m. The work schedule change applied to all Building Services
employees, including Plaintiff, regardless of their race, sex, or age.
Plaintiff was assigned to the first shift, and she was supervised by
Flordeles Brown, who reported to Bridges. The second shift was
supervised by Renato Lumacang, who also reported to Bridges.
In October 2016, due to difficulties with insomnia, Plaintiff
submitted an ADA accommodation request to CSU asking that she
be permitted to start work at 5:00 a.m. instead of 4:00 a.m. CSU
approved the request, after which Plaintiff’s schedule was adjusted
so that she worked from 5:00 a.m. until 2:00 p.m.
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4 Opinion of the Court 21-11225
Bridges testified, and Plaintiff does not dispute, that all Build-
ing Services employees, including Plaintiff, had a one-hour lunch
period but no other regularly scheduled breaks. Bridges stated that
an employee who needed to sit down for a few minutes to rest out-
side of the lunch period could do so, but that an employee who
needed a longer break while on the clock—for example, “15 or 20
minutes”—had to get permission from her supervisor. Likewise,
an employee who became ill after clocking in was required to re-
port the illness to a supervisor, and then clock out and go home.
Bridges made contemporaneous notes concerning the em-
ployees under his supervision, including Plaintiff, the contents of
which Plaintiff does not dispute. Those notes, submitted in sup-
port of Defendant’s summary judgment motion, reflect that Plain-
tiff violated the Building Services break policy several times be-
tween February and April 2017. A note from February 8, 2017
states that Bridges spoke with both shift managers on that date
about Plaintiff “sitting in the warehouse during working hours” for
about an hour before she clocked out. A note from March 23, 2017
indicates that Bridges had been informed by other Building Ser-
vices employees that Plaintiff was regularly seen sitting in CSU
classrooms outside of break time, and that although Plaintiff had
denied the report, Bridges asked the shift supervisors to monitor
Plaintiff’s activities more closely. A note from April 19, 2017 docu-
ments an incident in which Plaintiff was found sitting in a class-
room watching a video on her tablet during work hours.
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21-11225 Opinion of the Court 5
Plaintiff had a dispute with Building Services management
on April 20, 2017, after she was asked to stand with her coworkers
for a group photograph that management planned to post on the
CSU website. Plaintiff initially refused to participate in the photo-
graph, but she reluctantly complied after being advised that it was
mandatory. Bridges claims that Plaintiff was still “uncooperative”
because she refused to pose appropriately, and the photograph,
which is in the record and shows Plaintiff looking down while all
other staff members face the camera, confirms that his claim is true.
Plaintiff explained in her deposition that she was not aware the
photograph was mandatory, that being photographed was not in
her job description, and that she did not want to be in the picture
because her hair was not done that day. According to Bridges,
Plaintiff was not disciplined for objecting to being in the photo-
graph, but he considered her refusal to appropriately comply with
the request to be insubordinate and “part of a pattern of basically
being uncooperative.”
On April 28, 2017, Bridges made another note documenting
that Plaintiff had received verbal counseling for: (1) taking an un-
scheduled break without permission from her supervisor, and
(2) driving her personal vehicle on campus after she clocked in, a
separate violation of Building Services policy.2 On June 21, 2017,
2 Pursuant to the policy, after a Building Services employee clocks in, she can
walk or use a facilities vehicle to drive to her work location on campus, but
she is prohibited from using her personal vehicle while on duty.
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6 Opinion of the Court 21-11225
Bridges noted that Plaintiff was again verbally counseled after
coworkers complained that she had been seen walking or sitting in
areas around campus that were not areas of her responsibility out-
side of break time. Plaintiff testified that she did not recall being
verbally counseled on those dates.
Like Bridges, Plaintiff’s immediate supervisor, Flordeles
Brown, kept notes about Plaintiff’s conduct at work. Again, Plain-
tiff does not dispute the contents of those notes, which indicate that
Plaintiff was found in a classroom watching a video on her tablet
during work hours on April 19, 2017, that a co-worker saw Plaintiff
walking around campus during work hours on July 13, 2017, that
Plaintiff left work without informing her supervisor on July 28,
2017, that Plaintiff did not report to work at 5 a.m. and unilaterally
changed her schedule so that she worked from 6 a.m. to 3 p.m. on
August 3, 2017, and that Plaintiff was found sitting in her car during
work hours on two occasions in August 2017. According to
Brown’s notes, Plaintiff also arrived late or left work early without
permission two times and called in sick four times during the rele-
vant time period.
On August 28, 2017, Bridges signed a letter of separation ter-
minating Plaintiff’s employment from CSU. The separation letter
described two occasions (August 11 and August 18, 2017) on which
Plaintiff’s supervisor had found Plaintiff asleep in her car after she
had clocked in and was supposed to be on duty. The letter noted
that Plaintiff had claimed she was feeling ill when questioned about
why she was asleep in her car and not working while she was
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21-11225 Opinion of the Court 7
clocked in on those days, but that Plaintiff had never reported her
illness to management either before or after the incidents. The let-
ter further explained that Plaintiff’s clocking in to work and then
going to her car to sleep constituted “falsification of time report-
ing” and that sleeping while on duty was unacceptable conduct. It
concluded by advising Plaintiff that she was being terminated be-
cause, although she had repeatedly been counseled about the time
keeping issue and likewise advised of proper protocol for calling
out of work and requesting leave, Plaintiff continued to violate
CSU’s policies concerning time reporting honesty, attendance, per-
formance, and conduct.
Plaintiff subsequently filed an EEOC charge alleging that
CSU had terminated her employment on account of her race, sex,
age, and disability, and in retaliation for her request for accommo-
dations based on her sleep disorder. After she received a right to
sue letter from the EEOC, Plaintiff initiated this lawsuit. In her
amended complaint, Plaintiff alleged that she was terminated on
the bases of her race, sex, and age in violation of Title VII and the
ADEA, and that she was terminated and otherwise discriminated
against on account of her disability in violation of the ADA. In ad-
dition, Plaintiff claimed in the complaint that Defendant retaliated
against her in violation of Title VII.3
3 Plaintiff also asserted a claim in her complaint for declaratory judgment, but
she abandoned that claim on appeal by failing to explain the basis of or other-
wise address the claim in her appellate briefing.
See Sapuppo v. Allstate Flo-
ridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have long held that an
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8 Opinion of the Court 21-11225
Defendant moved for summary judgment as to all of Plain-
tiff’s claims, and Plaintiff moved for partial summary judgment
solely as to the issue of whether being photographed was within
her job description or job duties and whether her reluctance to be
photographed was against Defendant’s policies. Both motions
were referred to a Magistrate Judge, who issued a Report and Rec-
ommendation (“R&R”) that recommended granting summary
judgment to Defendant on all of Plaintiff’s claims and denying
Plaintiff’s motion for partial summary judgment as moot.
Regarding Plaintiff’s ADA and ADEA claims, the Magistrate
Judge determined that those claims were barred by Eleventh
Amendment immunity. The R&R noted that Defendant had relied
on Eleventh Amendment immunity in support of its motion for
summary judgment as to the ADA and ADEA claims, and that
Plaintiff had failed to cite any relevant case law showing that Elev-
enth Amendment immunity did not apply or otherwise respond to
Defendant’s argument. The R&R explained further that the Elev-
enth Amendment bars private claims against a state or one of its
agencies (such as Defendant) in federal court unless the state con-
sents to suit or Congress has abrogated immunity, and that Georgia
has not waived, nor Congress validly abrogated, immunity for
claims arising under the ADA or ADEA.
appellant abandons a claim when he either makes only passing references to it
or raises it in a perfunctory manner without supporting arguments and au-
thority.”).
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21-11225 Opinion of the Court 9
As to Plaintiff’s Title VII race and sex discrimination claims,
the R&R recommended granting summary judgment because:
(1) there was no direct evidence of discrimination against Plaintiff,
(2) Plaintiff conceded there was no comparator evidence to estab-
lish a prima facie case of discrimination under the
McDonnell
Douglas framework, and (3) there was no other evidence in the
record that would allow Plaintiff’s claims to survive summary judg-
ment under a “convincing mosaic” theory. The R&R determined
in the alternative that Plaintiff could not prevail even if she had es-
tablished a prima facie case of discrimination because she had not
shown that Defendant’s proffered reasons for terminating her em-
ployment—falsifying her time reporting by clocking in and then
going to sleep in her car and other attendance and performance is-
sues—were pretextual. The R&R noted that Plaintiff had failed to
point to any evidence in the record supporting an inference that
race or sex discrimination was the real reason for her termination,
rather than Defendant’s stated, and well-supported, reasons.
Finally, the R&R recommended summary judgment as to
Plaintiff’s Title VII retaliation claim, noting that Plaintiff failed to
show that she had engaged in any protected conduct under Title
VII. The R&R acknowledged that Plaintiff alleged in her complaint
that she was “discriminated against for making protected com-
plaints about how she was being treated.” Nevertheless, the Mag-
istrate Judge could find no additional facts in the complaint to sup-
port that conclusory allegation, nor any evidence in the record to
show that Plaintiff had ever engaged in activity protected by Title
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10 Opinion of the Court 21-11225
VII. On the contrary, Plaintiff testified in her deposition that she
never filed a grievance with or otherwise complained to any of her
supervisors or HR asserting that she was being discriminated
against.
Plaintiff filed partial objections to the R&R, in which she did
not challenge the R&R’s recommendation as to the Eleventh
Amendment immunity issue or otherwise specifically address the
basis of her age or disability discrimination claims. As to her Title
VII claims, Plaintiff conceded in her objections that she had no di-
rect evidence of discrimination based on her race or sex, and that
she likewise had no comparator evidence. Nevertheless, Plaintiff
argued that her Title VII claims could survive summary judgment
on a “convincing mosaic” theory because: (1) Plaintiff was forced
to take a photograph when her participation in that activity was
not part of her job duties, which Plaintiff likened to forced labor in
violation of the Thirteenth Amendment and false imprisonment
under Georgia law, (2) the notes of Plaintiff’s supervisors included
dates on which Plaintiff legitimately requested vacation leave, and
(3) Defendant fired three people in the Building Services depart-
ment between 2016 and 2017, all of whom were African-American,
at a time when African-Americans comprised only 20-30% of the
Building Services staff. Plaintiff also arguably objected to the Mag-
istrate Judge’s alternative conclusion that she had failed to rebut
Defendant’s legitimate, non-discriminatory reason for her termina-
tion with evidence of pretext.
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21-11225 Opinion of the Court 11
The district court adopted the Magistrate Judge’s R&R and
granted summary judgment to Defendant on all of Plaintiff’s
claims. The court noted that Plaintiff had only objected to the
R&R’s recommendations as to her Title VII race and sex discrimi-
nation claims, and that she had proffered neither direct nor valid
comparator evidence of race or sex discrimination. Furthermore,
the court agreed with the Magistrate Judge that there was no evi-
dence in the record to sustain Plaintiff’s Title VII claims under a
convincing mosaic theory.
In particular, the court rejected Plaintiff’s attempt to rely on
evidence concerning Defendant’s request that Plaintiff sit for a staff
photograph to show race or sex discrimination, because Plaintiff
did not allege that African American or female employees were
treated any differently than other employees as to that require-
ment. As to the supervisor’s notes, the court observed that the
notes simply documented Plaintiff’s full attendance record for all
of 2017, including vacation days, sick days, and days Plaintiff ar-
rived late, left early, or went on break while on the clock and with-
out permission. As such, the notes did not show that Plaintiff was
treated differently than non-African American or male employees
in any way. Finally, regarding the fact that Defendant fired three
African American employees—among them, Plaintiff—during the
relevant time period, the court noted that Plaintiff had failed to pro-
duce any evidence that non-African American employees had en-
gaged in the same conduct as the terminated employees but were
disciplined less harshly.
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12 Opinion of the Court 21-11225
Plaintiff appeals the district court’s summary judgment or-
der. On appeal, Plaintiff argues that the district court erred by
denying her motion for partial summary judgment because it is un-
disputed that Plaintiff’s job duties did not include posing for a staff
photograph. Plaintiff argues further that the district court erred by
granting Defendant’s motion for summary judgment because there
is a convincing mosaic of evidence suggesting discrimination, in-
cluding the photograph sitting, the supervisor’s notes reflecting the
days Plaintiff took vacation leave, and the fact that Defendant fired
three African American employees during the relevant time period.
Plaintiff does not challenge the district court’s ruling that her ADA
and ADEA claims are barred by Eleventh Amendment immunity,
or otherwise address those claims in her appellate briefing.
DISCUSSION
I. Standard of Review
We review the district court’s summary judgment ruling in
favor of Defendant
de novo, construing the evidence in the light
most favorable to Plaintiff and drawing all reasonable inferences in
her favor.
Hamilton v. Southland Christian Sch., Inc., 680 F.3d
1316, 1318 (11th Cir. 2012). Applying that standard, summary judg-
ment is appropriate if Defendant shows that there are no genuine
issues of material fact and that it “is entitled to judgment as a matter
of law.”
Id. (quoting Fed. R. Civ. P. 56(a) (internal quotation marks
omitted)).
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21-11225 Opinion of the Court 13
II. Plaintiff’s ADA and ADEA Claims
As discussed above, Plaintiff did not object to the Magistrate
Judge’s determination in the R&R that her ADA and ADEA claims
against Defendant are barred by Eleventh Amendment immunity.
Eleventh Circuit Rule 3-1, provides:
A party failing to object to a magistrate judge’s find-
ings 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 unob-
jected-to factual and legal conclusions if the party was
informed of the time period for objecting and the con-
sequences on appeal for failing to object.
11th Cir. R. 3-1. The notice Plaintiff received with the Magistrate
Judge’s R&R advised her that she had fourteen days in which to file
objections and it explained:
If no objections are filed, the Report and Recommen-
dation may be adopted as the opinion and order of
the District Court, and on appeal, the Court of Ap-
peals will deem waived any challenge to factual and
legal findings to which there was no objection, sub-
ject to interests-of-justice plain error review. 11th Cir.
R. 3-1.
This notice satisfies the requirements of Rule 3-1.
Compare Harri-
gan v. Metro Dade Police Dep’t Station No. 4, 977 F.3d 1185, 1191
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14 Opinion of the Court 21-11225
(11th Cir. 2020) (holding that Rule 3-1 was not satisfied by a notice
that informed the plaintiff she would waive the right to appeal un-
objected-to factual findings but did not mention unobjected-to le-
gal conclusions). Thus, Plaintiff waived her right to appeal the or-
der granting summary judgment on her ADA and ADEA claims by
failing to address the Eleventh Amendment immunity issue in her
objections to the Magistrate Judge’s R&R.
See id.
Rule 3-1 states that “[i]n the absence of a proper objection, .
. . the court may review [a ruling] on appeal for plain error if nec-
essary in the interests of justice.” 11th Cir. R. 3-1. But the plain
error doctrine “rarely applies in civil cases.”
Ledford v. Peeples,
657 F.3d 1222, 1258 (11th Cir. 2011).
See also Burch v. P.J. Cheese,
Inc., 861 F.3d 1338, 1352 (11th Cir. 2017) (“In an exceptional civil
case, we might entertain [an] objection [that was not raised below]
by noticing plain error.” (quotation marks omitted)). We find no
plain error in the Magistrate Judge’s determination that Plaintiff’s
ADA and ADEA claims are barred by Eleventh Amendment im-
munity. As noted above, Defendant argued in its summary judg-
ment briefing that Eleventh Amendment immunity bars Plaintiff’s
ADA and ADEA claims and Plaintiff failed to meaningfully respond
to the immunity argument, which is supported by the governing
case law.
See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 67 (2000)
(holding that Congress did not validly abrogate Eleventh Amend-
ment immunity for claims arising under the ADEA);
Bd. of Trus-
tees of Univ. of Alabama v. Garrett, 531 U.S. 356, 360 (2001) (hold-
ing that the Eleventh Amendment bars private suits seeking
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21-11225 Opinion of the Court 15
damages for state violations of Title I of the ADA).4 Plaintiff having
thus abandoned the immunity issue below and waived the right to
raise the issue on appeal, we affirm the district court’s order grant-
ing summary judgment on her ADA and ADEA claims.
III. Plaintiff’s Title VII Claims
Title VII of the Civil Rights Act of 1964 forbids covered em-
ployers from “discriminat[ing] against any individual with respect
to his compensation, terms, conditions, or privileges of employ-
ment, because of such individual’s race . . . [or] sex . . . [.]” 42 U.S.C.
§ 2000e-2(a)(1). The anti-retaliation provision of Title VII further
prohibits an employer from “discriminat[ing] against any individ-
ual . . . because he has opposed any practice” made unlawful by
Title VII or “made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing” under Ti-
tle VII. 42 U.S.C. § 2000e-3(a). Plaintiff alleges that Defendant
4 We note that Plaintiff does not assert a claim under Title II of the ADA,
which prohibits the exclusion of a disabled individual from participating in
“the services, programs, or activities of a public entity.”
See 42 U.S.C. § 12132.
Rather, Plaintiff asserts a disability-based employment discrimination claim
under Title I of the ADA, which prohibits certain employers, including a state
employer, from discriminating against a “qualified individual with a disability”
with respect to the “terms, conditions, and privileges of employment.”
See id.
§ 12112. This Court recently held that Congress has validly abrogated Elev-
enth Amendment immunity for claims related to public services arising under
Title II of the ADA.
See Nat’l Ass’n of the Deaf v. Florida, 980 F.3d 763, 774
(11th Cir. 2020). But
National Association of the Deaf does not apply to Title
I ADA claims, such as Plaintiff’s claim, which continue to be governed by the
rule the Supreme Court set out in
Kimel and
Garrett.
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16 Opinion of the Court 21-11225
violated Title VII because it terminated her employment based on
her race or sex. Plaintiff also implies, although she does not out-
right argue, that Defendant violated Title VII by subjecting her to
a hostile work environment based on her race or sex. Finally, Plain-
tiff claims that her termination was retaliatory.
A. Plaintiff’s Race and Sex Discrimination Claims
Plaintiff conceded below that she has no direct evidence of
race or sex discrimination against her. The Magistrate Judge thus
properly considered whether Plaintiff could sustain her Title VII
claims under the
McDonnell Douglas burden-shifting framework.
Pursuant to that framework, the plaintiff first must establish a
prima facie case of discrimination by showing that: (1) she belongs
to a protected class, (2) she was qualified for her position, (3) she
suffered an adverse employment action, and (4) she was replaced
by, or treated less favorably than, a person outside her protected
class.
See Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir.
2003). The burden then shifts to the employer to articulate a legit-
imate, nondiscriminatory reason for its challenged employment
decisions.
See Lewis v. City of Union City, 918 F.3d 1213, 1221
(11th Cir. 2019). Assuming the employer satisfies that require-
ment, the burden shifts back to the plaintiff to show that the reason
offered by the employer was not the real basis for the decision, but
a pretext for discrimination, “an obligation that merges with the
plaintiff’s ultimate burden of persuading the factfinder that she has
been the victim of intentional discrimination.”
Id. (alterations
adopted and quotation marks omitted).
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21-11225 Opinion of the Court 17
The Magistrate Judge concluded that Plaintiff could not es-
tablish a prima facie case of race or sex discrimination under the
McDonnell Douglas analysis because she could not show that she
was replaced by or treated less favorably than a person outside her
protected class—that is, either a non-African American or a male
Building Services employee. In other words, Plaintiff failed to pro-
duce any valid comparator evidence in support of her discrimina-
tion claims. Plaintiff did not object to the Magistrate Judge’s con-
clusion on this point. On the contrary, Plaintiff admitted that she
had no valid comparator evidence.
Nevertheless, Plaintiff argued below, and she continues to
argue on appeal, that her discrimination claims should survive
summary judgment on a “convincing mosaic” theory. It is true
that a discrimination claim can survive summary judgment, not-
withstanding a plaintiff’s failure to establish a
prima facie case of
discrimination under
McDonnell Douglas, if she presents other cir-
cumstantial evidence—sometimes described by courts as a “con-
vincing mosaic” of evidence—that would permit a jury to infer in-
tentional discrimination.
See Smith v. Lockheed Martin Corp., 644
F.3d 1321, 1328 (11th Cir. 2011) (“[E]stablishing the elements of the
McDonnell Douglas framework is not, and never was intended to
be, the
sine qua non for a plaintiff to survive a summary judgment
motion in an employment discrimination case.”). For example, in
the absence of valid comparator evidence, a plaintiff may present
evidence such as “suspicious timing, ambiguous statements . . . ,
and other bits and pieces from which an inference of discriminatory
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18 Opinion of the Court 21-11225
intent” with respect to a challenged employment decision might be
drawn.
See Lewis, 934 F.3d at 1185 (quotation marks omitted).
However, Plaintiff has failed to produce any evidence what-
soever from which a jury could reasonably infer that Defendant’s
decision to terminate her employment was discriminatory. The
only evidence Plaintiff offers to support her theory is: (1) the re-
quirement that Plaintiff sit for a staff photograph, which was not
part of Plaintiff’s job description, (2) a supervisor’s notes docu-
menting the days Plaintiff took leave for vacation, in addition to
the days she called in sick, arrived late or left early, and took breaks
without permission, and (3) the fact that Bridges terminated three
African American employees (including Plaintiff) between 2016
and 2017, when African Americans comprised only twenty to thirty
percent of the Building Services staff.
None of the facts cited by Plaintiff support a reasonable in-
ference of race or sex discrimination. As to the photograph, it is
undisputed that the requirement was imposed on all Building Ser-
vices employees, regardless of their race or sex. Plaintiff’s allega-
tion that the requirement was not part of her job duties is thus ir-
relevant to her discrimination claims. Likewise, the supervisor’s
notes, which simply document Plaintiff’s complete attendance rec-
ord during 2017, do not suggest race or sex discrimination. Finally,
regarding the three African American employees who were fired
between 2016 and 2017, Defendant cites record evidence—unre-
butted by Plaintiff—that each of these employees was fired for vio-
lating CSU policies regarding time falsification, attendance, and/or
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21-11225 Opinion of the Court 19
other performance and conduct standards. A jury could not rea-
sonably infer a racially discriminatory motive behind these termi-
nation decisions in the absence of some evidence showing that De-
fendant treated non-African American employees who engaged in
similar policy violations and misconduct less harshly. There is no
such evidence in the record.
In short, Plaintiff has failed to present any evidence from
which a jury could infer that her termination was discriminatory in
violation of Title VII. Plaintiff concedes that there is no direct evi-
dence of race or sex discrimination, and likewise no valid compar-
ator evidence that would allow her to establish a prima facie case
under the
McDonnell Douglas analysis. Furthermore, the record
does not support Plaintiff’s proffered “convincing mosaic” theory
of discrimination. Accordingly, we affirm the district court’s order
granting summary judgment on Plaintiff’s Title VII race and sex
discrimination claims.
B. Hostile Work Environment
It is not clear from the pleadings below or from her appellate
briefing whether Plaintiff intended to pursue a Title VII hostile
work environment claim, but the Magistrate Judge correctly deter-
mined that summary judgment was warranted on any such claim.
To prevail on a Title VII hostile work environment claim, a plaintiff
must show, among other things, that she was subjected to “severe
or pervasive” harassment that was motivated by a protected char-
acteristic such as the plaintiff’s race or sex.
See Tonkyro v. Sec’y,
Dep’t of Veterans Affairs, 995 F.3d 828, 837 (11th Cir. 2021)
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20 Opinion of the Court 21-11225
(quotation marks omitted). Harassment is sufficiently severe or
pervasive to be actionable when it results in a work environment
“that a reasonable person would find hostile or abusive and an en-
vironment that the victim subjectively perceives . . . to be abusive.”
See id. (alterations adopted and quotation marks omitted). To de-
termine the objective severity of harassment, courts consider sev-
eral factors, including the frequency and severity of the alleged con-
duct, whether the conduct is physically threatening or humiliating,
and whether the conduct unreasonably interferes with the em-
ployee’s job performance.
See id.;
see also Fernandez v. Trees, Inc.,
961 F.3d 1148, 1152 (11th Cir. 2020) (“A hostile work environment
claim under Title VII requires proof that the workplace is perme-
ated with discriminatory intimidation, ridicule, and insult, that is
sufficiently severe or pervasive to alter the conditions of the vic-
tim’s employment and create an abusive working environment.”
(quotation marks omitted)). The severe or pervasive standard is
intended to be “sufficiently demanding to ensure that Title VII does
not become a general civility code.”
Tonkyro, 995 F.3d at 837 (quo-
tation marks omitted).
Plaintiff’s allegations do not come close to meeting this
standard. The only actions Plaintiff cites in support of a hostile
work environment claim are: (1) the photograph incident de-
scribed above, and (2) the fact that Plaintiff’s supervisor Flordeles
Brown documented in her notes the vacation days requested by
Plaintiff. There is no evidence that either of these actions was re-
lated in any way to Plaintiff’s race or sex and, in any event, they do
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21-11225 Opinion of the Court 21
not rise to the level of objectively severe or pervasive harassment
necessary to sustain a hostile work environment claim. Thus, to
the extent Plaintiff intended to assert a Title VII claim based on a
hostile work environment, we affirm the district court’s order
granting summary judgment as to that claim.
C. Retaliation
Like her discrimination claims, Plaintiff’s Title VII retalia-
tion claim is analyzed under the
McDonnell Douglas burden-shift-
ing framework.
See Johnson v. Miami-Dade Cty., 948 F.3d 1318,
1325 (11th Cir. 2020). Pursuant to that framework, the plaintiff first
must establish a prima facie case of retaliation by showing that:
(1) she engaged in statutorily protected conduct—that is, conduct
protected by Title VII, (2) she suffered an adverse action, and
(3) “there is some causal relationship between the two events.”
Id.
(quotation marks omitted). The burden then shifts to the em-
ployer to articulate a legitimate, nonretaliatory reason for the ad-
verse action.
Id. Assuming the employer meets that requirement,
“the burden shifts back to the plaintiff to establish that the reason
offered by the [employer] was not the real basis for the decision,
but a pretext” for retaliation.
Id. (quotation marks omitted).
Plaintiff’s Title VII retaliation claim falters at the first step of
the analysis because there is no evidence Plaintiff engaged in any
conduct protected by Title VII—that is, there is no evidence that
she opposed an unlawful practice under Title VII, made or assisted
in a Title VII charge, or participated in a Title VII investigation or
proceeding—prior to her termination. Indeed, and as discussed
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22 Opinion of the Court 21-11225
above, Plaintiff admitted in her deposition that she did not file a
grievance or otherwise complain about race or sex discrimination
to any individual within Defendant’s organization prior to her ter-
mination, and it is undisputed that Plaintiff filed her EEOC charge
after she was terminated. Accordingly, we affirm the district
court’s order granting summary judgment to Defendant as to
Plaintiff’s Title VII retaliation claim.
CONCLUSION
For the reasons stated above, we find no error in the district
court’s order granting summary judgment to Defendant on Plain-
tiff’s ADA, ADEA, and Title VII claims. Accordingly, we affirm.
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