Kiesha Cheatham v. DeKalb County, Georgia , 682 F. App'x 881 ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-11068
Non-Argument Calendar
________________________
D.C. Docket No. 1:14-cv-01887-WSD
KIESHA CHEATHAM,
Plaintiff - Appellant,
versus
DEKALB COUNTY, GEORGIA,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(March 20, 2017)
Before MARTIN, JULIE CARNES, and ANDERSON, Circuit Judges.
PER CURIAM:
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Plaintiff sued Defendant, alleging sex discrimination under Title VII, 42
U.S.C. § 2000e, and the Equal Protection Clause of the 14th Amendment, as well
as retaliation for engaging in protected conduct under Title VII. Defendant moved
for summary judgment on all claims, which the district court granted. Plaintiff
now appeals. We agree with the district court’s well-reasoned order, and affirm.
I. BACKGROUND
Plaintiff, Kiesha Cheatham, a female, was hired by Defendant, DeKalb
County, as a DeKalb County Fire Rescue (“DCFR”) Fire Medic in 2008. On
October 16, 2012, Plaintiff was eating dinner at DCFR Fire Station 1 with
Christopher Roberts, her co-worker, when she noticed Roberts experiencing an
allergic reaction to onions in their dinner. Captain Matthew Robinson, Fire
Apparatus Operator Bradley Catroneo, and Captain James Damico were also
present during the incident. Captain Robinson and EMT Michael Gales—who
entered the room while Roberts was having the allergic incident—administered
epinephrine to Robinson to counteract the allergic reaction.
Following the incident, DCFR’s Internal Affairs Unit and the DeKalb
County District Attorney’s Office began an investigation to determine whether
someone willfully placed onions in Roberts’ meal knowing that he was allergic to
onions, and whether proper protocols were followed concerning the administration
of the epinephrine. As part of this investigation, Plaintiff provided written
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statements about the incident to the DCFR’s Internal Affairs Unit on October 25,
2012, and November 30, 2012. The investigation concluded that Captain Damico
had willfully placed onions in Roberts’ dinner and that various other employees
had violated DCFR protocols following the incident. As to Plaintiff, the
investigation concluded that Captain Robinson had instructed Plaintiff to label the
epinephrine as damaged (rather than that it had been used on Roberts) and that
plaintiff had originally done so. However, Plaintiff later corrected this
misrepresentation and created a patient care report that documented the
epinephrine as having been used on Roberts.
On October 28, 2012, Plaintiff was transferred from Fire Station 1 to Fire
Station 17. Plaintiff contends that this transfer and two subsequent disciplinary
letters were done in retaliation for her cooperation with the internal affairs
investigation. The first disciplinary letter on December 10, 2012, constituted
written counseling for excessive absenteeism and abuse of sick leave. The second
letter on January 20, 2013, offered written counseling for neglect of duty stemming
from a violation of DKFR’s chain of command policy.
Plaintiff also contends that she experienced sex-based harassment and
discrimination after being transferred to Fire Station 17. On more than one
occasion, two male firefighters defecated in the women’s restroom and did not
flush the toilet. Further, Station 17’s Captain Mitchel commented “the only reason
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why a woman is in the fire service is to cook and do clerical work” and stated that
he “didn’t want a woman riding on his [fire truck].” Plaintiff was also denied
requests for leave because other male medics had already requested the time off,
although she concedes that, at other times, her requests were granted.
Plaintiff testified that she filed several grievances “[d]uring the time frame
of after the onion incident,” though she did not remember exactly how many or
when these were filed. For one such grievance, Plaintiff contends that on February
1, 2013, she met with Department Chief Edward O’Brien, who stated, “I’m going
to give the grievance back to you and let you decide on what to do about it because
if I go deeper into it, [you] could be suspended for 30 days or worse. I’ll let you
decide. I took it easy on you because you have not been in any trouble before.”
On February 21, 2013, Plaintiff filed a formal complaint of discrimination
with DeKalb County. According to Plaintiff, the county never responded to this
complaint. On March 14, 2013, Plaintiff filed a charge of discrimination with the
EEOC.
Finally, on August 21, 2013, Plaintiff resigned from her position with DCFR
and accepted another full-time salaried position with a private ambulance
company.
On June 17, 2014, Plaintiff sued Defendant asserting retaliation, sex
discrimination, and hostile work environment claims under Title VII of the Civil
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Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Equal Protection Clause of
the Fourteenth Amendment, via 42 U.S.C. § 1983. Defendant moved for summary
judgment and the magistrate judge issued a report and recommendation (“R&R”)
recommending that the district court grant the motion. After considering
objections to the magistrate judge’s R&R, the district court adopted the magistrate
judge’s R&R and granted Defendant’s motion for summary judgment. Plaintiff
appeals that order and the district court’s entry of final judgment.
II. NORTHERN DISTRICT OF GEORGIA LOCAL RULE 56.1
Plaintiff first contends that the district court erred in its application of Local
Rule 56.1, NDGa, by rejecting unsupported assertions made in Plaintiff’s
undisputed statement of material facts. We review a district court’s application of
its local rules for an abuse of discretion, finding such abuse only when the plaintiff
demonstrates that the district court made a clear error of judgment. Mann v. Taser
Int’l, Inc., 588 F.3d 1291, 1302 (11th Cir. 2009); see also Clark v. Housing Auth.
of City of Alma, 971 F.2d 723, 727 (11th Cir. 1992) (noting that district courts
receive “great deference” in interpreting their local rules).
Local Rule 56.1 establishes the process through which summary judgment
motions will be litigated in the Northern District of Georgia. Under Local Rule
56.1(B)(2)(b), a respondent may submit a statement of additional facts which the
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respondent contends are material and present a genuine issue for trial. Local Rule
56.1, NDGa. However, the court “will not consider” any such fact if it is:
(a) not supported by a citation to evidence (including page or
paragraph number); (b) supported by a citation to a pleading rather
than to evidence; (c) stated as an issue or legal conclusion; or (d) set
out only in the brief and not in the movant’s statement of undisputed
facts.
Local Rule 56.1, NDGa. “[F]ailure to comply with local rule 56.1 is not a mere
technicality”; instead, the rule provides “the only permissible way for [the non-
movant] to establish a genuine issue of material fact.” Mann, 588 F.3d at 1303;
see also Reese v. Herbert, 527 F.3d 1253, 1268 (11th Cir. 2008) (holding that a
district court should “disregard or ignore evidence relied on by the respondent”
when not properly cited in response to a movant’s statement of undisputed facts). 1
Applying this rule, the magistrate judge concluded that Plaintiff often failed
to support her responsive statements of material fact with adequate record
citations, and that the R&R would not consider any such unsupported assertions or
denials. The district court concurred in this assessment and adopted the facts as set
out in the magistrate’s R&R.
1
In Reese the court considered a situation where the non-movant failed to cite factual support
pursuant to Local Rule 56.1 “in his response to the statement of undisputed facts submitted by
[the movants].” Id. at 1267. Here, Plaintiff (the non-movant) admitted most of the Defendant’s
statements of material fact. Yet, she failed to cite factual support for her own statement of
undisputed material facts. The Local Rules provide clear guidance as to what a court must do in
such a situation—“the court will not consider any fact” that is not properly supported as
specified in the rules. Local Rule 56.1(B)(1), (B)(2)(b), NDGa.
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We also agree that the magistrate judge properly applied Local Rule 56.1 in
choosing “not to consider any fact” identified in Plaintiff’s statement of undisputed
material facts that was not properly supported with adequate record citations.
First, four of Plaintiff’s fifteen facts were supported only by citation to Plaintiff’s
complaint—in violation of Local Rule 56.1(B)(1)(b). Other stated facts either
were not actually supported by their corresponding record citations or were stated
as an issue or legal conclusion, which violates Local Rule 56.1(B)(1)(b) & (c). 2 As
such, we conclude that the district court did not abuse its discretion by applying
Local Rule 56.1 and adopting the factual recitation of the magistrate judge. The
next issue is whether, under these facts, the district court properly granted
summary judgment to Defendant.
III. SUMMARY JUDGMENT
We review a district court’s grant of summary judgment de novo, viewing
all evidence in the light most favorable to the non-moving party. Owen v. I.C. Sys.,
Inc., 629 F.3d 1263, 1270 (11th Cir. 2011). A movant is entitled to summary
judgment 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). A dispute about a
2
Examples include: Plaintiff’s assertion that she was transferred to another station “because of”
her participation in the onion-investigation, Plaintiff’s assertion that individuals at her station had
a meeting with the Assistant Chief from which she was excluded, Plaintiff’s assertion that
DeKalb County Policy allows an individual to speak to anyone in their chain of command
regarding discrimination, and Plaintiff’s assertion that she was “forced to resign her position
because of the toll the hostile environment had on her health.”
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material fact is “genuine” “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
A. Retaliation
Plaintiff claims that she was subjected to unlawful retaliation in violation of
42 U.S.C. § 2000e-3(a). 3 Since Plaintiff offers only circumstantial evidence that
Defendant retaliated against her, Plaintiff must first “establish a prima facie case
by demonstrating the following essential elements: (1) the employee was engaged
in statutorily protected activity; (2) the employee suffered an adverse employment
action; and (3) a causal link exists between the protected activity and the adverse
employment action.” Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1310
(11th Cir. 2016). The magistrate judge and district court concluded that Plaintiff
failed to meet this initial burden; we agree.
To meet the first prima facie element—that Plaintiff engaged in protected
activity—Plaintiff must establish that she either “has opposed any practice made an
unlawful employment practice by this subchapter” (the opposition clause) or “has
made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter” (the participation clause). 42 U.S.C.
3
This provision provides: “It shall be an unlawful employment practice for an employer to
discriminate against any of his employees . . . 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.” 42 U.S.C. § 2000e-3(a).
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§ 2000e–3(a); E.E.O.C. v. Total Sys. Servs., Inc., 221 F.3d 1171, 1174 (11th Cir.
2000). Plaintiff asserts two allegedly protected acts: (1) her participation in the
internal investigations of the DeKalb County Fire & Rescue Department Internal
Affairs Unit and the District Attorney’s Office and (2) her later filing of a
complaint of discrimination with DeKalb County and an EEOC charge of
discrimination.
As to the first act—participating in the internal investigations—this
participation does not constitute protected activity under either the participation
clause or the opposition clause. The “participation clause” only “protects
proceedings and activities which occur in conjunction with or after the filing of a
formal charge with the EEOC; it does not include participating in an employer’s
internal, in-house investigation, conducted apart from a formal charge with the
EEOC.” Total Sys. Servs., 221 F.3d at 1174.
Further, Plaintiff’s participation in the investigation is not protected under
the “opposition clause” because it was not an act of opposition to a “practice made
an unlawful employment practice” by Title VII. 42 U.S.C. § 2000e–3(a).
“[A]lthough we acknowledge that a plaintiff conceivably could prevail on [her]
retaliation claim notwithstanding the fact that the practice [she] opposed was not
unlawful under Title VII,” Plaintiff’s subjective belief that her employer was
engaged in unlawful employment practices must be “objectively reasonable.”
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Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir.
1997) (emphasis in original). Such a belief was not objectively reasonable here.
The internal investigations did not deal with conduct “made unlawful” by Title
VII—that is, discrimination based on “race, color, religion, sex, or national origin”.
See 42 U.S.C. § 2000e–3(a)–(b). Instead, the investigation dealt with whether one
of Plaintiff’s co-workers had placed onions into Roberts’ meal knowing that he
was allergic to onions, and whether the proper DCFR protocols were followed
concerning the administration and documentation of the epinephrine. Plaintiff
could not reasonably believe that her participation in the internal investigation was
in opposition to some practice made unlawful by Title VII. See Coutu v. Martin
Cty. Bd. of Cty. Comm’rs, 47 F.3d 1068, 1074 (11th Cir. 1995). As such, plaintiff
cannot rely on her participation in the internal investigations to prove her prima
facie case.
Plaintiff can, however, rely on her DeKalb County complaint of
discrimination 4 and her EEOC charge of discrimination—both of which are
statutorily-protected activities. Nonetheless, Plaintiff cannot establish the third
element of the prima facie case for this protected activity—that “a causal link
exists between the protected activity and the adverse employment action.”
4
Plaintiff did not recall the specific details of the DeKalb County complaint of discrimination
referenced in her complaint, but we will assume that this complaint of discrimination—like the
EEOC charge—alleged some form of sex discrimination and is thus protected by the opposition
clause.
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Furcron, 843 F.3d at 1310. To establish such a causal link, the employee must
prove that “the desire to retaliate was the but-for cause of the challenged
employment action.” Booth v. Pasco Cty., Fla., 757 F.3d 1198, 1207 (11th Cir.
2014) (internal quotation marks omitted). Plaintiff contends that a causal
relationship is established here because the alleged retaliatory actions all “came
after the [Plaintiff] participated in the investigation regarding her coworker” and
that “immediately thereafter she was ostracized, written up repeatedly and treated
like an outcast.”5 But again, Plaintiff’s participation in the internal investigation
does not constitute statutorily-protected activity; only Plaintiff’s DeKalb County
complaint of discrimination and EEOC charge qualify.
Thus, to be actionable, any retaliatory actions must have occurred after these
formal complaints were filed. See Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227,
1245 (11th Cir. 2016) (concluding that “no triable issue of causation exists” in
retaliation claim when school district raised ethics concerns prior to administrator’s
protected activity, even though formal ethics complaint was filed afterwards).
Plaintiff’s EEOC charge was filed on March 14, 2013 and her DeKalb County
complaint was filed shortly before, on February 21, 2013. The alleged adverse
employment actions, however, all occurred before these statutorily-protected
5
We assume without deciding that these actions—individually or collectively—constitute an
adverse employment action for purposes of Plaintiff’s retaliation claim. See Shannon v.
Bellsouth Telecomms., Inc., 292 F.3d 712, 716 (11th Cir. 2002) (recognizing that a set of actions
may constitute an adverse employment action when considered collectively, even though some
actions do not rise to the level of an adverse employment action individually).
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activities were undertaken. Specifically, Plaintiff’s transfer occurred on October
28, 2012; Plaintiff was allegedly excluded from a meeting with the assistant chief
about the onion incident on November 21, 2012; Plaintiff’s written counseling for
excessive absenteeism was received on December 10, 2012; and Plaintiff’s written
counseling for violation of the chain of command was received on January 20,
2013. And, to the extent Plaintiff hopes to rely on general ill-treatment by her co-
workers or supervisors, Plaintiff has not cited any evidence that such ill-treatment
occurred because she filed the DeKalb County complaint or the EEOC charge.
Plaintiff has not cited to this court any specific adverse employment action that
occurred after the filing of her complaints, nor any other reason to believe that her
complaints were the “but-for cause” of any alleged mistreatment. 6 See Trask v.
Sec’y, Dep’t of Veterans Affairs, 822 F.3d 1179, 1194 (11th Cir. 2016). Plaintiff
has therefore failed to establish a prima facie case of retaliation, and the district
court was correct to conclude that Defendant is entitled to summary judgment on
this claim.
6
The district court analyzed whether Plaintiff’s resignation or denial of back pay were adverse
employment actions that had been caused by the filing of Plaintiff’s complaints. However,
Plaintiff does not mention either of these potential adverse employment actions in her retaliation
briefing to this court. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004)
(issues or arguments not raised in a party’s briefs are abandoned). At any rate, as explained
below, we agree with the district court that Plaintiff failed to present evidence sufficient to meet
the high standard for a constructive discharge claim.
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B. Hostile Work Environment
“To establish a hostile work environment claim under Title VII, the plaintiff
must show that the workplace is permeated with discriminatory intimidation,
ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of
the victim’s employment and create an abusive working environment.” Gowski v.
Peake, 682 F.3d 1299, 1311 (11th Cir. 2012) (quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 21 (1993)) (internal quotations omitted). Specifically, to prove a
prima facie case, a plaintiff must show that: (1) she belongs to a protected group;
(2) she was subjected to unwelcome harassment; (3) the harassment was based on a
protected characteristic of the employee; (4) the harassment was sufficiently severe
or pervasive so as to alter the terms and conditions of employment and create a
discriminatorily abusive working environment; and (5) the employer is responsible
for such environment under either a theory of vicarious or of direct liability.
Edwards v. Prime, Inc., 602 F.3d 1276, 1300 (11th Cir. 2010).
The requirement that the harassment be “severe or pervasive” contains an
objective and subjective element. The behavior must result in an environment
“that a reasonable person would find hostile or abusive,” and one which the victim
“subjectively perceive[s] . . . to be abusive.” Miller v. Kenworth of Dothan,
Inc., 277 F.3d 1269, 1276 (11th Cir. 2002) (quoting Harris, 510 U.S. at 21–22). In
evaluating the severity of the harassment, we consider the totality of the
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circumstances, including the frequency and severity of the conduct, whether the
conduct is physically threatening or humiliating or a mere offensive utterance, and
whether the conduct unreasonably interferes with the employee’s job performance.
Id. Instances of alleged harassment are considered cumulatively, rather than in
isolation. Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 808 (11th Cir.
2010).
In support of her hostile work environment claim, Plaintiff alleges the
following: fellow male officers on occasion defecated in the women’s restroom
and failed to flush the toilet, so that the feces were later found by Plaintiff; Captain
Mitchel commented that “the only reason why a woman is in the fire service is to
cook and do clerical work” and stated that he “didn’t want a woman riding on his
[fire truck]”; Plaintiff was denied requests for leave because other male medics had
already requested the time off (although sometimes her leave requests were
granted); Plaintiff filed several formal complaints and grievances which were
never addressed by the County; and Plaintiff was told by Chief O’Brien that she
had the option to revoke one of her complaints and that if she did not, she might be
suspended for 30 days.
Other than Captain Mitchel’s comments, there is no evidence that any of
these behaviors were “based on” Plaintiff’s female status. Trask, 822 F.3d at 1196
(“[T]he plaintiffs must show the hostile treatment was based on their protected
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status.”). Indeed, Plaintiff herself believed that much of the hostility she faced was
because she had cooperated with the investigation of the onion incident and created
a patient-care report for the medication that was used on Roberts, which report
contradicted a supervisor’s explanation. Hostile treatment based on Plaintiff’s
cooperation in the investigation does not provide evidence that these incidents
were motivated by Plaintiff’s sex.
Further, even if Plaintiff had presented evidence that this allegedly negative
treatment was motivated by her sex, the treatment was not sufficiently “severe or
pervasive” to support a hostile work environment claim. Compare Adams v.
Austal, U.S.A., L.L.C., 754 F.3d 1240, 1254 (11th Cir. 2014) (holding that conduct
was not sufficiently severe or pervasive where an African-American plaintiff “saw
his coworkers wear the Confederate flag on a regular basis,” “saw racist graffiti in
the men’s restroom that he used on a daily basis,” “heard people say the slur
‘nigger,’ but only a ‘few times,’” and heard about a noose being left in the
breakroom, though he did not see it himself) and Gupta v. Florida Bd. of Regents,
212 F.3d 571, 578–79 (11th Cir. 2000), overruled on other grounds by Burlington
N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006) (holding that conduct was not
sufficiently severe or pervasive where a supervisor allegedly touched plaintiff’s
hand and thigh, lifted her dress hem, repeatedly asked her to lunch, told her that
she was beautiful, stared at her, and called her home on numerous occasions at
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night and asked about personal matters) with Hulsey v. Pride Restaurants, LLC,
367 F.3d 1238, 1248 (11th Cir. 2004) (holding that conduct was sufficiently severe
or pervasive where the female plaintiff’s supervisor “frequent[ly]” tried to get
plaintiff to date him using “many direct as well as indirect propositions for sex”
including “following her into the restroom,” “repeated attempts to touch her
breasts, place his hands down her pants, and pull off her pants,” and “enlisting the
assistance of others to hold her while he attempted to grope her”) and Miller, 277
F.3d at 1276–77 (severe and pervasive conditions existed where co-workers called
plaintiff racially offensive names three to four times per day).
Plaintiff did not testify how often her co-workers left feces in the female
restroom toilets, and could only say that Captain Mitchell made the derogatory
statements “numerous” times. Such evidence does not establish a pattern of
frequent occurrences, or a workplace “permeated with discriminatory intimidation,
ridicule, and insult” that effectively “alter[s] the conditions of the victim’s
employment.” Gowski, 682 F.3d at 1311. Further, though the actions of her co-
workers might have been offensive and reprehensible, they were not “physically
threatening or humiliating.” Reeves, 594 F.3d at 808. And finally, though Plaintiff
may have felt that her Captain did not want her at the office, Plaintiff has not
pointed to any specific manner in which “the conduct unreasonably interfere[d]
with the employee’s job performance.” Miller, 277 F.3d at 1276. Thus, taken
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together in its totality, Plaintiff has not presented sufficient evidence that the
allegedly hostile actions were sufficiently severe or pervasive to support Plaintiff’s
hostile work environment claim.
C. Disparate Treatment Discrimination
Plaintiff’s final set of claims are for disparate treatment discrimination under
Title VII and 42 U.S.C. § 1983. When § 1983 is used as a parallel remedy for
violation of Title VII, courts employ the same elements and standards of proof to
analyze both claims. Cross v. State of Ala., State Dep’t of Mental Health & Mental
Retardation, 49 F.3d 1490, 1508 (11th Cir. 1995). To establish a prima facie case
for disparate treatment under this framework, Plaintiff may show that (1) she is a
member of a protected class; (2) she was subjected to adverse employment action;
(3) her employer treated similarly-situated, non-protected employees more
favorably; and (4) she was qualified to do the job. McCann v. Tillman, 526 F.3d
1370, 1373 (11th Cir. 2008). Plaintiff has failed to make a prima facie case of
disparate treatment, and thus the district court was correct to grant summary
judgment on these grounds.
First, Plaintiff must identify an adverse employment action that would fulfil
the second element of the prima facie case, and she has failed to do so. Not all
employer actions that negatively impact an employee qualify as “adverse
employment actions.” Instead, “only those employment actions that result in a
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serious and material change in the terms, conditions, or privileges of employment
will suffice.” Howard v. Walgreen Co., 605 F.3d 1239, 1245 (11th Cir. 2010)
(internal quotations marks omitted, emphasis in original). Plaintiff’s transfer from
Station 1 to Station 17 does not qualify because it did not involve “a reduction in
pay, prestige or responsibility” and Plaintiff provides no other reason why “a
reasonable person in [Plaintiff’s] position” would view the action as adverse. See
Hinson v. Clinch Cty., Ga. Bd. of Educ., 231 F.3d 821, 829 (11th Cir. 2000)
(internal quotation marks omitted); Doe v. Dekalb Cty. Sch. Dist., 145 F.3d 1441,
1449 (11th Cir. 1998). Nor would either of the written counseling documents
issued to Plaintiff. Plaintiff received a written counseling for excessive
absenteeism and abuse of sick leave on December 18, 2012, and another for
violating the chain of command policy on January 20, 2013. 7 Written criticisms of
an employee’s job performance that do not lead to tangible job consequences,
however, are generally not sufficient to constitute an adverse employment action.
Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1241 (11th Cir. 2001). Plaintiff
does not identify any “serious and material change in the terms, conditions, or
7
Plaintiff testified that—as was stated in her Complaint—she received another written
counseling for excessive absenteeism on November 12, 2012. There is no record of this
counseling, and the December 18, 2012 counseling indicates that it was the first offense for this
violation. At any rate, the existence of any additional written counseling would not change the
conclusion that these counseling letters do not constitute an adverse employment action.
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privileges of employment” deriving from the written counseling, and thus it does
not constitute an adverse employment action. 8 Id. at 1239.
Second, even if Plaintiff had presented sufficient evidence of an adverse
employment action, she has not introduced sufficient evidence of the third prima
facie element—that her employer has treated similarly-situated, non-protected
employees more favorably. To fulfill this element, Plaintiff may identify a
comparator that is “nearly identical” to the Plaintiff and “similarly situated in all
relevant respects.” Trask, 822 F.3d at 1192. Plaintiff, however, has not identified
a single similarly-situated male employee. Instead, she merely proffers that she
was the only female officer at Station 17. Such broad contradistinctions are not
enough to establish that there were “nearly identical” comparators who were
treated more favorably, and is not enough to otherwise establish an inference of
discrimination. Specific comparators are required to keep “courts from second-
guessing employers’ reasonable decisions and confusing apples with oranges.”
Burke–Fowler v. Orange Cty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006) (internal
quotation marks omitted). Accordingly, Plaintiff has failed to establish a prima
facie case of Title VII disparate treatment discrimination. See McCann, 526 F.3d
8
Of note, a constructive discharge does constitute an adverse employment action. Akins v.
Fulton Cty., Ga., 420 F.3d 1293, 1300–01 (11th Cir. 2005). However, a claim of constructive
discharge requires conduct that is of greater severity or pervasiveness than that of a hostile work
environment. Bryant v. Jones, 575 F.3d 1281, 1298 (11th Cir. 2009). Because Plaintiff has not
presented sufficient evidence of a hostile work environment, she necessarily has failed to
establish sufficient evidence that the conduct underlying this claim served to “constructively
discharge” her.
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at 1375 (dismissing plaintiff’s discrimination claims for failing to establish a
sufficient comparator).
IV. CONCLUSION
Plaintiff has not presented a genuine issue of material fact warranting a trial
on any of her claims. Therefore, we AFFIRM the district court’s summary
judgment order and final judgement.
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