USCA11 Case: 22-12200 Document: 24-1 Date Filed: 02/21/2023 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12200
Non-Argument Calendar
____________________
GEORGETTE SHAW,
Plaintiff-Appellant,
versus
UNITED STATES POSTAL SERVICE,
UNITED STATES POSTMASTER GENERAL,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Georgia
D.C. Docket No. 1:20-cv-00183-JRH-BKE
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2 Opinion of the Court 22-12200
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Before NEWSOM, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Georgette Shaw appeals from the district court’s grant of
summary judgment in favor of her employer, the United States
Postal Service (“USPS”), on her employment action alleging a
claim of race‑based disparate treatment under Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e‑2(a). She chal-
lenges many of the court’s factual conclusions and argues that these
conclusions caused the court to err further in its analyses. She ar-
gues that the court erred in determining that her proffered com-
parators were not similarly situated. She also argues that the court
erred in finding that she did not meet her burden to show that
USPS’s proffered reason was pretext. Finally, she argues that, even
if her comparators were dissimilar, the district court erred in failing
to find a convincing mosaic of evidence showing discrimination.
I.
We review de novo a district court’s order granting sum-
mary judgment. Bowen v. Manheim Remarketing, Inc.,
882 F.3d
1358, 1362 (11th Cir. 2018). Summary judgment may be granted
only if “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). “If that standard is met, the burden shifts to the nonmoving
party to come forward with specific facts showing that there is a
genuine issue for trial.” Shaw v. City of Selma,
884 F.3d 1093,
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22-12200 Opinion of the Court 3
1098 (11th Cir. 2018) (quotation marks omitted). “[M]ere existence
of some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion for summary judgment;
the requirement is that there be no genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986) (em-
phasis in original).
“A material fact is one that might affect the outcome of the
suit under the governing law. A material fact is genuine if the evi-
dence is such that a reasonable jury could return a verdict for the
nonmoving party.” Furcron v. Mail Centers Plus, LLC,
843 F.3d
1295, 1303 (11th Cir. 2016) (quotation marks and citation omitted).
“All reasonable inferences arising from the undisputed facts should
be made in favor of the nonmovant, but an inference based on spec-
ulation and conjecture is not reasonable.” Ave. CLO Fund, Ltd. v.
Bank of Am., N.A.,
723 F.3d 1287, 1294 (11th Cir. 2013) (quotation
marks omitted). “Because summary judgment may only be
granted where there is no genuine issue of material fact, any pur-
ported ‘factual findings’ of the trial court cannot be ‘factual find-
ings’ as to disputed issues of fact, but rather are conclusions as a
matter of law that no genuine issue of material fact exists.” Jones
v. Am. Gen. Life & Acc. Ins. Co.,
370 F.3d 1065, 1069 n.1 (11th Cir.
2004) (alterations adopted).
II.
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4 Opinion of the Court 22-12200
To defeat a summary judgment motion on a Title VII dis-
parate treatment claim, a plaintiff “must present sufficient facts to
permit a jury to rule in her favor.” Lewis v. City of Union City,
Ga.,
918 F.3d 1213, 1220 (11th Cir. 2019) (en banc). “One way [to]
do so is by satisfying the burden‑shifting framework set out in
McDonnell Douglas. 1”
Id. Under the McDonnell Douglas frame-
work, when the plaintiff seeks to establish her prima facie case of
intentional discrimination by comparing her situation to appropri-
ate comparators—as does Shaw in this case—the plaintiff must
show “(1) that she belongs to a protected class, (2) that she was
subjected to an adverse employment action, (3) that she was qual-
ified to perform the job in question, and (4) that her employer
treated similarly situated employees outside her class more favora-
bly.”
Id. at 1220‑21 (quotation marks omitted).
As to the fourth element, the plaintiff “must show that she
and her comparators are similarly situated in all material respects.”
Id. at 1226 (quotation marks omitted). Ordinarily, a similarly situ-
ated comparator: (1) “will have engaged in the same basic conduct
(or misconduct) as the plaintiff”; (2) “will have been subject to the
same employment policy, guideline, or rule as the plaintiff”;
(3) “will ordinarily (although not invariably) have been under the
jurisdiction of the same supervisor as the plaintiff”; and (4) “will
share the plaintiff’s employment or disciplinary history.”
Id. at
1227-28. However, “precisely what sort of similarity
1 McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
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22-12200 Opinion of the Court 5
th[is] . . . standard entails will have to be worked out on a
case‑by‑case basis, in the context of individual circumstances.” Id.
at 1227. Where an employer took adverse action against the plain-
tiff but not against another employee outside her class, “[t]he rele-
vant inquiry is not whether the employees hold the same job titles,
but whether the employer subjected them to different employ-
ment policies.” Id. at 1227, 1231 (quotation marks omitted) (hold-
ing that comparators were not similarly situated to the plaintiff be-
cause they were subject to different personnel policies); Lathem v.
Dep't of Child. & Youth Servs.,
172 F.3d 786, 793 (11th Cir. 1999).
In this case, although there are considerable differences in
the situations of Phillips and Tichgelaar, we assume arguendo (but
expressly do not decide) that there might be genuine issues of ma-
terial fact as to whether Phillips and/or Tichgelaar are similarly sit-
uated in all material respects. Thus, we assume arguendo that
Shaw has established her prima facie case. However, as discussed
below, we nevertheless affirm the judgment of the district court on
the basis of its alternative holding—i.e. that the USPS proffered a
legitimate safety reason for the challenged actions and Shaw ulti-
mately failed to establish pretext.
III.
Under the McDonnell Douglas framework, once the plain-
tiff successfully establishes a prima facie case of intentional discrim-
ination, the burden shifts to the employer to rebut the presumption
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6 Opinion of the Court 22-12200
of discrimination by proffering a legitimate, non-discriminatory
reason for its employment decision against the plaintiff. McDon-
nell Douglas,
411 U.S. at 802. If the employer does so, the burden
shifts back to the plaintiff to show that the employer’s stated reason
was in fact pretext.
Id. at 804. “A reason is not pretext for discrim-
ination unless it is shown both that the reason was false, and that
discrimination was the real reason.” Brooks, 446 F.3d at 1163 (quo-
tation marks omitted) (emphasis in original).
As noted above, the USPS adduced evidence of legitimate
safety reasons for denying Shaw’s request for an accommodation
to work with a medical boot with open toes. The USPS policy on
which the decision was based is reasonable. After a careful review
of the briefs and relevant parts of the summary judgment record,
we conclude that Shaw has failed to create a genuine issue of ma-
terial fact on the pretext issue. There is no evidence—absolutely
zero—of any racial motivation on the part of either Blendowski or
Steele, the only two persons who possibly could have influenced
the challenged decision. There is simply no evidence suggesting
that the decision was based on, or influenced by, racial discrimina-
tion rather than safety reasons.
Similarly, there is no merit in Shaw’s argument that a “con-
vincing mosaic” of circumstantial evidence raises a reasonable in-
ference that the challenged decision was based on racial discrimi-
nation. As noted above, there is simply no evidence at all to sup-
port that theory. Furthermore, Shaw did not raise a convincing
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22-12200 Opinion of the Court 7
mosaic argument in the district court, and the argument is thus for-
feited.
For the foregoing reasons, the judgment of district court is
AFFIRMED.
