1:22-cv-00250•McCaskill v. 13th Judicial Circuit Court of Alabama
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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 Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 1 of 34 PageID# <pageID>
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). Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 2 of 34 PageID# <pageID>
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, Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 3 of 34 PageID# <pageID>
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.”). Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 4 of 34 PageID# <pageID>
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)). Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 5 of 34 PageID# <pageID>
“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 Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 6 of 34 PageID# <pageID>
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). Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 7 of 34 PageID# <pageID>
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.”)). Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 8 of 34 PageID# <pageID>
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, Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 9 of 34 PageID# <pageID>
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 Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 10 of 34 PageID# <pageID>
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. Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 11 of 34 PageID# <pageID>
“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 Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 12 of 34 PageID# <pageID>
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 Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 13 of 34 PageID# <pageID>
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 Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 14 of 34 PageID# <pageID>
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 Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 15 of 34 PageID# <pageID>
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 Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 16 of 34 PageID# <pageID>
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). Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 17 of 34 PageID# <pageID>
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 Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 18 of 34 PageID# <pageID>
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 Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 19 of 34 PageID# <pageID>
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). Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 20 of 34 PageID# <pageID>
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’ Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 21 of 34 PageID# <pageID>
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 Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 22 of 34 PageID# <pageID>
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). Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 23 of 34 PageID# <pageID>
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, Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 24 of 34 PageID# <pageID>
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 Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 25 of 34 PageID# <pageID>
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 Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 26 of 34 PageID# <pageID>
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 Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 27 of 34 PageID# <pageID>
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. Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 28 of 34 PageID# <pageID>
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 Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 29 of 34 PageID# <pageID>
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 Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 30 of 34 PageID# <pageID>
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 Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 31 of 34 PageID# <pageID>
[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: Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 32 of 34 PageID# <pageID>
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 Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 33 of 34 PageID# <pageID>
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 Case 1:22-cv-00250-TFM-N Doc# 124 Filed 07/11/25 Page 34 of 34 PageID# <pageID>
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