Cheryl Clark, M.D. v. South Broward Hospital District ( 2015 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14848
________________________
D.C. Docket No. 0:12-cv-61164-WPD
CHERYL CLARK, M.D.,
Plaintiff - Appellant,
versus
SOUTH BROWARD HOSPITAL DISTRICT,
d.b.a. Memorial Healthcare System,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(March 31, 2015)
Before HULL and JULIE CARNES, Circuit Judges, and ROTHSTEIN, ∗ District
Judge.
JULIE CARNES, Circuit Judge:
∗
Honorable Barbara J. Rothstein, United States District Judge for the Western District
of Washington, sitting by designation.
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Plaintiff Dr. Cheryl Clark appeals the district court’s grant of summary
judgment in favor of her former employer, South Broward Hospital District
(“Hospital”), on her claims under Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-2 (“Title VII”), and the Florida Civil Rights Act, Fla. Stat.
§ 760.10. In the district court, Plaintiff claimed that, because of her sex and in
retaliation for filing an EEOC charge, the Hospital took several adverse
employment actions against her, culminating in her discharge from employment.
After careful review and with the benefit of oral argument, we affirm the district
court’s grant of summary judgment on all claims.
I. Background
A. Factual Background 1
Plaintiff is a female doctor employed by the Hospital in the Critical Care
Department (“CCD”) from January 2005 to March 2012. At all times relevant to
this litigation, the Hospital employed a Director/Chief2 and fourteen additional
physicians within the CCD, three of whom were female. In 2006, Plaintiff became
1
We set out the facts and evidence in this section in the light most favorable to the non-
moving party, the plaintiff. See Chambless v. Louisiana-Pacific Corp., 481 F.3d 1345, 1349
(11th Cir. 2007).
2
The “Chief” title is informal and reflects an intra-departmental designation, while the
“Director” title is a contractual, salaried position. One individual fills both roles.
2
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the CCD Vice-Chief, 3 which carried with it additional responsibilities, including
writing protocols, developing standardized forms, and obtaining medical
equipment. She also created the CCD’s monthly work schedule, for which she was
paid her normal hourly rate and earned approximately $20,000 annually.
During Plaintiff’s tenure as Vice-Chief, there were two instances—one in
2008 and one in 2010—where the CCD Director could not attend a Hospital
meeting. Instead of sending Plaintiff to the meeting, the Director, Dr. Walter
Severyn, asked a well-respected male physician to attend in his absence.
According to Severyn, he did not send Plaintiff because, in his opinion, Plaintiff
was not sufficiently well-liked to represent the CCD to the Hospital at large. When
Severyn announced his retirement, he told Plaintiff that she should not apply for
the Director position because she was “too direct” and “too confrontational.”
Before selecting a permanent Director, the Hospital chose Dr. Seong Lee, a
male surgeon from a different department, to act as the Interim Director/Chief. On
August 19, 2010, shortly after Lee began his stint as the acting Director, Plaintiff
complained to Dr. Stanley Marks, the Senior Vice President and Chief Medical
Officer of the Hospital, about the selection of Lee for this spot. Plaintiff asked
why someone was brought in from another department, and she claims that Marks
became upset, yelled at her, and told her she risked being fired unless she
3
Like the “Chief” title, the “Vice-Chief” designation is an informal intra-departmental
title that provides no additional salary for the holder of this title.
3
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supported Lee. The next day, Plaintiff reported this conversation to Human
Resources and alleged that she had been passed over for the Interim Director
position because she is a woman.
On November 18, 2010, in his capacity as Interim Director, Dr. Lee called a
department-wide meeting to discuss Plaintiff’s scheduling practices because the
other physicians had complained that Plaintiff was creating unfair schedules. All
fourteen doctors in the CCD attended, as well as Lee and Dr. Macaluso, the
Hospital’s Director of Medical Affairs. Tensions escalated during the meeting, and
two male physicians shouted at Plaintiff, stating that she was intimidating and
unapproachable and that she created imbalanced schedules. Plaintiff exited the
room mid-meeting and immediately filed for a two-month leave of absence
beginning the next day. After she left, Macaluso requested that the other doctors in
the CCD document in writing any complaints they might have about Plaintiff. A
few days later, while on her self-imposed leave of absence, Plaintiff attempted to
log into the scheduling system and discovered that she had been barred from the
system and that her scheduling duties were now being handled by Interim Director
Lee.
Plaintiff filed her first EEOC charge on December 8, 2010, alleging gender
discrimination because of: (1) former Director Severyn’s failure to allow her to
attend meetings in his absence; (2) Severyn’s advising her not to apply for the
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Director position; (3) the Hospital’s hiring of a male interim Director; (4) Marks’
threatening to fire her in August 2010 for questioning the hiring of Dr. Lee as
Interim Director; (6) the verbal abuse she suffered at the November 18 department-
wide meeting; and (7) her loss of scheduling duties once she went on leave of
absence. She alleged that the reasons given for the above incidents—that she was
“too confrontational” and “intimidating”—were pretexts for discriminating against
a woman “acting out of role.” Two days later, on December 10, Plaintiff met with
Human Resources about her complaint. The Hospital then began an internal
investigation and interviewed many of Plaintiff’s co-workers. It found no evidence
of gender discrimination, but did conclude that Plaintiff had many interpersonal
conflicts with her co-workers.
Also in December 2010, Plaintiff applied for the permanent Director
position. She received a telephone interview with an external recruiter but was not
further considered for the position because the recruiter determined she lacked
previous supervisory experience: a necessary qualification for the job. Notably,
although Plaintiff returned to work from her voluntary two-month leave of absence
in January 2011, she worked less than a month before taking a second leave of
absence for three more months, from February to May 2011.
Approximately a year after the above events, in February 2012, the Hospital
hired Dr. Aharon Sareli as the permanent CCD Director/Chief. Shortly after taking
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over the reins, Sareli began receiving complaints from CCD physicians that they
felt bullied and physically threatened by Plaintiff. These complaints led to a
second internal investigation by Human Resources. Ultimately, because of the
seriousness of the misconduct attributed to Plaintiff, the Hospital hired an
independent investigator, Wayne Black, to look into these complaints. Black
interviewed over forty of Plaintiff’s peers and co-workers. These individuals
reported many instances of misconduct by Plaintiff, including her threats that she
would leave the Hospital “in a trail of blood” and “bring down the group.” Indeed,
some co-workers reported feeling physically afraid of Plaintiff. Others reported
that Plaintiff made degrading and abusive comments to patients.
In March 2012, the Hospital’s executive team met to review and discuss the
investigation results. Black presented his detailed findings orally and in a written
report. Ray Kendrick, Senior Vice President for Human Resources, verbally
shared with the executive team alleged racist and bigoted remarks made by
Plaintiff that were reported to Human Resources. Based on the information
presented in that meeting, the Hospital decided to terminate Plaintiff’s employment
on March 28, 2012. Plaintiff thereafter filed an amended EEOC charge alleging
that this employment termination was discriminatory and retaliatory.
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B. Procedural History
Plaintiff filed her First Amended Complaint against the Hospital on January
31, 2013, alleging gender discrimination, retaliation, and the existence of a hostile
workplace environment, in violation of Title VII and the Florida Civil Rights Act.4
In its answer, the Hospital asserted that no matter Plaintiff’s gender or the fact she
had filed an EEOC complaint, it would have made the same decisions with respect
to Plaintiff because of her “leaves of absence and her misconduct as to employees
and patients, including, but not limited to, inappropriate behaviors, screaming at
and intimidating employees; demeaning employees, patients, and patients’
families; and making profane, violent, and racist statements . . . .” Following
discovery, the district court granted the Hospital’s motion for summary judgment
on all counts and entered a final judgment. This timely appeal follows.
II. Standard of Review
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
4
“Because the [Florida Civil Rights Act] is modeled after Title VII, and claims brought
under it are analyzed under the same framework, the state-law claims do not need separate
discussion and their outcome is the same as the federal ones.” Alvarez v. Royal Atl. Developers,
Inc., 610 F.3d 1253, 1271 (11th Cir. 2010).
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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).
III. Discussion
On appeal, Plaintiff argues that the district court erred by: (1) finding that
Plaintiff did not suffer any adverse employment actions prior to her termination;
(2) granting summary judgment to the Hospital on her discriminatory discharge
claim and (3) retaliatory discharge claim; and (4) granting summary judgment to
the Hospital on Plaintiff’s discriminatory and retaliatory hostile work environment
claims. We address each issue in turn.
A. Pre-Termination Adverse Employment Actions
When a plaintiff offers only circumstantial evidence to prove her Title VII
claim, as Plaintiff does here, we employ the burden-shifting framework established
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See Crawford v. City of Fairburn, 482 F.3d 1305, 1308 (11th Cir. 2007); Brown v.
Alabama Dep’t of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010). Under this
framework, a plaintiff bears the burden of establishing a prima facie case, which
creates a rebuttable presumption that the employer acted illegally. To establish a
prima facie Title VII disparate treatment claim, a “plaintiff must show that she (1)
was a member of a protected class, (2) was qualified for the job, (3) suffered an
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adverse employment action, and (4) was replaced by someone outside the
protected class or that her employer treated similarly situated employees outside of
her class more favorably.” Cuddeback v. Fla. Bd. of Educ., 381 F.3d 1230, 1235
(11th Cir. 2004). To establish a prima facie Title VII retaliation claim, a plaintiff
must show that: (1) she engaged in statutorily protected activity; (2) she suffered a
materially adverse action; and (3) causation. Chapter 7 Trustee v. Gate Gourmet,
Inc., 683 F.3d 1249, 1258 (11th Cir. 2012).
Once a plaintiff establishes a prima facie case, the burden of production
shifts to the employer to articulate a legitimate, non-discriminatory, non-retaliatory
reason for its action. Crawford, 482 F.3d at 1308 (applying framework in
disparate treatment context); Brown, 597 F.3d at 1181 (applying framework in
retaliation context). The employer need not persuade the court that it was actually
motivated by the proffered reason, only that the reason existed and was legitimate.
Crawford, 482 F.3d at 1308. If the employer articulates one or more reasons, the
presumption of discrimination is rebutted, and the burden of production shifts back
to the plaintiff to offer evidence that the employer’s stated reason was a pretext for
illegal discrimination. Id. If the employer proffers multiple reasons, the plaintiff
must rebut each one to survive summary judgment. Id.
In both discrimination and retaliation claims, a plaintiff must show that she
suffered a specific “adverse action.” See Cuddeback, 381 F.3d at 1235 (plaintiff
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must show she “suffered an adverse employment action” in a prima facie Title VII
discrimination claim); Chapter 7 Trustee, 683 F.3d at 1258 (plaintiff must show
she “suffered a materially adverse action” in a prima facie Title VII retaliation
claim). Being fired is, of course, an adverse action. But any other action by an
employer that falls short of actually terminating the employee can constitute an
adverse action only if it “in some substantial way, alter[s] the employee’s
compensation, terms, conditions, or privileges of employment, deprive[s] her of
employment opportunities, or adversely affect[s] her status as an employee.”
Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (quoting Gupta v. Fl. Bd.
of Regents, 212 F.3d 571, 587 (11th Cir. 2000)). To be considered adverse, the
action must cause “a serious and material change in the terms, conditions, or
privileges of employment.” Id. at 970–71 (emphasis added). Title VII “does not
require proof of direct economic consequences in all cases,” but “the asserted
impact cannot be speculative and must at least have a tangible adverse effect on the
plaintiff’s employment.” Davis v. Town of Lake Park, 245 F.3d 1232, 1239 (11th
Cir. 2001). This Court applies an objective test and asks “whether a reasonable
person in the plaintiff’s position would view the employment action in question as
adverse.” Hinson v. Clinch Cnty., Ga. Bd. of Educ., 231 F.3d 821, 829 (11th Cir.
2000) (quotation omitted and alteration adopted). For an action to be “adverse” in
the retaliation context, it “must be harmful to the point that [it] could well dissuade
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a reasonable worker from making or supporting a charge of discrimination.”
Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006).
Plaintiff argues that the district court erred in finding that no adverse actions
occurred as a result of the Hospital (1) taking away her scheduling duties, which
had earned her an additional $20,000 per year and (2) assigning her fewer shifts
than she requested during the month after she had returned from her second leave
of absence. She also argues that the district court erred in denying relief on her
claim that the Hospital discriminated and retaliated against her when it denied her a
promotion to the Director/Chief position.
1. Loss of Scheduling Duties
As noted, the Hospital relieved Plaintiff of her scheduling duties shortly
after Plaintiff announced in late November 2011 that she would be taking a two-
month leave of absence. Plaintiff contends that the Hospital’s action constituted an
adverse action that it took to retaliate against her for having filed an EEOC charge
around the same time period. The district court acknowledged that removing
Plaintiff’s scheduling duties, for which she earned additional pay at the rate of
around $20,000 per year, could potentially constitute an adverse employment
action under Title VII. But it also concluded that Plaintiff was hard-pressed to
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fault the Hospital because it was Plaintiff who brought about this result by
voluntarily taking a lengthy leave of absence. 5
The district court is correct. It is difficult to understand how an employee
who has taken a leave of absence can then complain when her employer takes her
at her word and reassigns the duties she would normally perform. Whatever
adversity she suffered, it was Plaintiff who brought it on herself by deciding to take
a leave of absence. A reasonable person would not consider the reassignment of
such duties in these circumstances to be an adverse action by the employer. See
Hinson, 231 F.3d at 829. To the contrary, a reasonable person would understand
that her employer must necessarily reassign such duties while she is absent from
her job. Thus, we affirm the district court’s conclusion that Plaintiff suffered no
actionable adverse employment action as a result of the reassignment of her
scheduling duties while Plaintiff was on leave. 6
5
The district court further explained that Plaintiff’s scheduling duties “were not
independent from her role as a physician at the hospital” because the former was not a salaried
position, and Plaintiff was paid her regular hourly rate for creating the schedule. Thus, when she
took a leave of absence, “she abandoned the scheduling duty.” Specifically, for all her duties,
Plaintiff’s pay structure was based on the number of hours she worked.
6
Plaintiff has not asserted that she requested a reinstatement of scheduling duties once
she returned from her two leaves of absence, nor has she explicitly argued that the Hospital’s
failure to reinstate those duties constituted gender discrimination or retaliation. Nevertheless, to
the extent that Plaintiff makes such an argument, we note that she has offered no evidence of
disparate treatment of a similarly situated comparator. Further, numerous complaints by
coworkers about Plaintiff’s unfairness in making scheduling assignments constitute a neutral,
non-discriminatory reason for transferring these scheduling duties to the Director, and Plaintiff
has not shown that this explanation is a pretext for discrimination.
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2. Loss of Shifts
Before her return from her second leave of absence, Plaintiff emailed Dr.
Lee and requested that she be given fourteen night-shifts for June 2011. After the
schedule was published, Plaintiff was unhappy to learn that she had received only
twelve shifts, whereas some other doctors had been given more shifts. She emailed
Dr. Lee demanding an explanation. Dr. Lee responded, explaining that inherent
difficulties in creating a schedule to accommodate the preferences of all doctors on
staff had led to Plaintiff’s particular schedule for that month. He noted that in each
24-hour period, there are five day-shifts and only two night-shifts. For that reason,
day-shift doctors are always scheduled for a few additional shifts, and Plaintiff had
requested to continue working exclusively night-shifts, as she had done throughout
her employment at the Hospital. Additionally, several day-shift physicians had
requested vacation time that month, resulting in fewer day-shifts physicians taking
on extra day-shifts. Dr. Lee also mentioned that, as Plaintiff was aware, individual
doctors’ requests could not be honored “100% of the time despite [his] best
efforts.” Finally, Dr. Lee apologized and noted, “Schedule issues are specifically
brought up at every monthly Team meeting, so everyone can have some input into
how we can improve this complicated process together.”
The following month, Plaintiff was assigned fifteen night-shifts, and she has
not alleged that she was dissatisfied with her shift assignments on any occasion
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other than this one isolated month. But nonetheless she argues that, by giving her
two fewer shifts than she had requested for one month (costing her $4,064 in
income), the Hospital acted adversely toward her and did so in retaliation for her
having filed internal and EEOC complaints. In light of the difficulties and vagaries
of accommodating a particular doctor’s shift preferences in any given month, we
conclude that the Hospital’s failure, on one month only, to give Plaintiff the
number of shifts she had requested, did not constitute an adverse action because
this decision did not cause a serious and material change in the terms, conditions,
or privileges of employment, which is what is required before an employer’s action
can be deemed to be adverse. Crawford, 529 F.3d at 970–71. Nor can we
conclude that a reasonable person in Plaintiff’s position would view this isolated
action as adverse or that it would dissuade a reasonable worker from making or
supporting a charge of discrimination. See Hinson, 231 F.3d at 829; Burlington
Northern, 548 U.S. at 57. Out of the many months that Plaintiff had worked at the
Hospital, she complains that in only one month did she happen to receive fewer
shifts than she requested. Moreover, even if one assumed that this June 2011 shift
assignment constituted an adverse action, Dr. Lee’s explanation provided a neutral,
non-discriminatory, non-retaliatory reason for the number of shifts assigned.
Crawford, 482 F.3d at 1308; Brown, 597 F.3d at 1181.
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3. Non-Promotion Claim
As to Plaintiff’s final allegation of a pre-termination adverse action, she
contends that by not promoting her to the Director position after Dr. Severyn
retired, the Hospital discriminated against her based on her gender. The district
court refused to consider Plaintiff’s non-promotion claim concluding that Plaintiff
failed to sufficiently plead the issue. We disagree. Plaintiff’s complaint alleges:
“[T]he refusal to allow [Plaintiff] to apply for the position of Medical [D]irector or
Chief and when she did so anyway, the refusal to even give her an interview . . .
was motivated by [P]laintiff’s gender.” We will assume that this language was
sufficient to plead a claim based on the Hospital’s decision not to promote
Plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations
omitted) (“To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its
face.”).
But even though the claim may have sufficiently been pled, Defendant is
entitled to summary judgment. 7 “Under the McDonnell Douglas framework, to
prevail on a claim of failure to promote, a plaintiff may establish a prima facie case
of sex discrimination by showing that: (1) she is a member of a protected class; (2)
7
See Kernel Records Oy v. Mosley, 694 F.3d 1294, 1309 (11th Cir. 2012) (“[We] may
affirm the judgment of the district court on any ground supported by the record, regardless of
whether that ground was relied upon or even considered by the district court.”).
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she was qualified and applied for the promotion; (3) she was rejected despite her
qualifications; and (4) other equally or less qualified employees who were not
members of the protected class were promoted.” Wilson v. B/E Aerospace, Inc.,
376 F.3d 1079, 1089 (11th Cir. 2004). Assuming without deciding that Plaintiff
established a prima facie case of gender discrimination, Plaintiff is not entitled to
relief on this claim.
The only admissible evidence in support of Plaintiff’s gender discrimination
claim is her assertion that Dr. Severyn told her she should not apply for the
Director position because she is “too confrontational” and “too direct.” 8 Plaintiff
took Severyn to actually mean that she should not apply because she is a woman.
To the contrary, there is ample evidence that Plaintiff was very confrontational,
under even the strictest interpretation of that word. An employer could reasonably
conclude that supervisory duties and Plaintiff’s extremely confrontational
personality would make for a volatile mix.
8
In her brief, Plaintiff repeatedly asserts that Dr. Severyn informed her that she should
not apply because she was a woman. This assertion is contradicted by Plaintiff’s own sworn,
deposition testimony, in which she stated that Severyn advised her not to apply because she was
too confrontational and direct. At oral argument, Plaintiff’s counsel conceded that the only
evidence supporting the contrary assertion in her brief is the deposition testimony of Ray
Kendrick recounting Plaintiff’s statement to Kendrick that Severyn had told Plaintiff she would
not get the job due to her gender. Plaintiff does not attempt to explain why her statement to
Kendrick is non-hearsay, is subject to some hearsay exception, or is otherwise admissible to
show that Severyn actually made this statement. That being so, the only admissible evidence in
the record, which is supplied by Plaintiff’s own sworn testimony, is that Severyn’s comments
were as described in text.
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In addition, the Hospital presented further evidence that its reasons for not
choosing Plaintiff as Director were non-discriminatory and non-pretextual. First,
the Hospital sought for its Director someone with prior supervisory experience.
Plaintiff has presented no evidence of previous direct supervisory leadership
experience. In contrast, Dr. Sareli had leadership experience serving as chief
resident, class representative in medical school, and “director for satellites and
subspecialty programs” at the Penn Sleep Center. Dr. Lee, the Interim Director,
served as Medical Director of Surgical Critical Care in Trauma Services prior to
his term as CCD Director.
Moreover, in discrimination claims based on a failure to promote, a plaintiff
cannot prove pretext by merely showing she was more qualified than the person
who received the position. Springer v. Convergys Customer Mgmt. Grp. Inc., 509
F.3d 1344, 1349 (11th Cir. 2007). Instead, a plaintiff must show “that the
disparities between the successful applicant’s and [her] own qualifications were of
such weight and significance that no reasonable person, in the exercise of impartial
judgment, could have chosen the candidate selected over the plaintiff.” Id.(quoting Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004), cert. denied,
546 U.S. 960 (2005) (internal quotations omitted)). Plaintiff does not meet this
standard. As noted, any objective observer would readily conclude that Dr.
Sareli’s leadership experience clearly dwarfed Plaintiff’s.
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Finally, the Hospital presented evidence that it had decided not to hire as the
new Director any current employee from within the CCD, given the internal
discord and rancor between existing employees there. The Hospital concluded that
no internal candidate within the CCD could command the respect necessary to lead
as Director. The Hospital adhered to this decision by hiring outside the
Department. This justification constitutes an additional non-discriminatory reason
for not promoting Plaintiff, which Plaintiff has failed to show is was pretextual.
B. Gender Discrimination Discharge Claim
Plaintiff claims that the Hospital discriminated against her because of her
gender when it fired her. Because no direct evidence of gender discrimination
exists on this record, we apply the burden-shifting framework of McDonnell
Douglas. The latter requires (1) Plaintiff to first make out a prima facie, (2) after
which the burden shifts to the Hospital to articulate a non-discriminatory reason for
its employment action, (3) with the burden thereafter shifting back to Plaintiff to
offer evidence of pretext. Crawford, 482 F.3d at 1308. To make a prima facie
case, Plaintiff must first show that she “(1) was a member of a protected class, (2)
was qualified for the job, (3) suffered an adverse employment action, and (4) was
replaced by someone outside the protected class or that her employer treated
similarly situated employees outside of her class more favorably.” Cuddeback,
381 F.3d at 1235.
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The district court found that Plaintiff failed to establish a prima facie case of
gender discrimination for her employment termination because she did not present
comparator evidence that a similarly-situated male employee was treated more
favorably when presented with similar accusations of misconduct. We agree. “In
order to be considered ‘similarly situated,’ the compared employees must have
been ‘involved in or accused of the same or similar conduct,’ yet ‘disciplined in
different ways’ for that conduct.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321,
1346 (11th Cir. 2011). There is no evidence on the record that similar reports of
misconduct were made against any other employees, so Plaintiff has failed to
present comparator evidence sufficient to make a prima facie case.
Plaintiff argues that her lack of comparator evidence does not doom her
claim because we have held that “establishing the elements of the McDonnell
Douglas framework is not, and never was intended to be, the sine qua non for a
plaintiff to survive [] summary judgment;” instead, a plaintiff will survive
summary judgment if she presents a “convincing mosaic of circumstantial
evidence that would allow a jury to infer intentional discrimination.” Smith, 644
F.3d at 1328. But Plaintiff has not presented a “convincing mosaic” of evidence
suggesting that her employment termination was motivated by her gender. In
Smith, there was substantial evidence of discriminatory racial animus, including
documented racial tensions following a workplace shooting resulting from racism
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against black employees. Id. at 1329–30. Any evidence of gender-motivated
animus is entirely lacking in this case.
Moreover, even assuming that Plaintiff established a prima facie case of
gender discrimination, the allegations of misconduct made against Plaintiff amply
supply an adequate non-discriminatory, non-pretextual reason for firing her. Mr.
Kendrick informed the Hospital’s executive team of the racist and anti-Semitic
remarks that Plaintiff allegedly made, such as “listen to the stupid nigger,” and
“that’s all we need another fucken (sic) South African Jew.” In fact, Plaintiff
admitted during her deposition that she might have “teasingly” referred to one of
her colleagues as a “fucking Jew.” Investigator Black’s report showed that at least
two witnesses reported feeling physically afraid of Plaintiff, and numerous
witnesses reported that Plaintiff made threatening statements, including: (1) she
would “leave in a trail of blood”; (2) there “will be causalities (sic) in this group”;
and (3) she was “leaving this place with a boom and will bring down the group.”
Plaintiff responds that she never made any of those comments, but
significantly, the question is not whether Plaintiff actually engaged in the alleged
misconduct. Rather, it is whether the Hospital in good faith believed the reports of
misconduct. See Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1266–67
(11th Cir. 2010) (the “question is whether her employers were dissatisfied with her
for [] non-discriminatory reasons, even if mistakenly or unfairly so”); Elrod v.
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Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (inquiry is limited to
whether employer believed plaintiff was guilty of misconduct and if so, whether
that was reason behind discharge; that employee did not actually engage in
misconduct is irrelevant).
Here, the Hospital had received multiple reports of Plaintiff’s inflammatory
remarks and aggressive personality. It took these reports seriously enough to
initiate a formal investigation. Plaintiff has provided no reason to suspect that the
Hospital did not honestly believe the truth of the allegations against Plaintiff. That
being so, the serious misconduct alleged by co-workers easily constitutes a non-
discriminatory reason for terminating Plaintiff’s employment. Accordingly, her
discriminatory termination claim fails.
C. Retaliatory Discharge Claim
Title VII prohibits employers from retaliating against an employee because
she has opposed acts made unlawful by Title VII. 42 U.S.C. § 2000e-3(a). Absent
direct evidence that an employer has so acted, we employ the McDonnell Douglas
burden-shifting framework when analyzing claims for retaliation. Brown v. Ala.
Dep’t of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010). A plaintiff must first
make a prima facie case by showing (1) that she engaged in statutorily protected
activity, (2) that she suffered a materially adverse action, and (3) that the protected
activity caused the adverse action. Chapter 7 Trustee, 683 F.3d at 1258. Then, the
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burden of production shifts to the defendant to articulate a legitimate, non-
retaliatory reason for its employment action, which the plaintiff can rebut with
evidence of pretext. Id.
Plaintiff alleges that the Hospital fired her in retaliation for her having
engaged in statutorily-protected activities. The district court, however, concluded
that Plaintiff had failed to make a prima facie case of retaliation because she had
not established a causal connection between the filing of her December 2010
EEOC charge and the Hospital’s subsequent March 2012 termination of Plaintiff,
which followed an investigation in February 2012 of allegations of misconduct by
Plaintiff. In so ruling, the district court focused on the long time period between
Plaintiff’s EEOC complaint and the Hospital’s ultimate decision to fire her.
The time period between an employee’s protected activity and an
employer’s adverse action often figures prominently in a determination whether
the employee’s act caused the employer’s reaction. This is so, because absent
some other evidence of a causal relation between the two, a short time-span
between the two events is often all that an employee will be able to offer to support
her contention that it was her protected activity that prompted the employer to visit
some negative action on her. And it is up to the employee to prove that “the desire
to retaliate was the but-for cause of the challenged employment action.” Booth v.
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Pasco Cnty., Fla., 757 F.3d 1198, 1207 (11th Cir. 2014) (quoting Univ. of Tex. Sw.
Med. Ctr. v. Nassar, ___ U.S. ___, 133 S. Ct. 2517, 2528 (2013)).
Thus, an employee’s success in showing causation will often be strongly
correlated with the shortness of the time that has elapsed between the employee’s
protected activity and the employer’s alleged reaction to that activity. We have
held that sometimes causation can be established by “mere temporal proximity
between an employer’s knowledge of protected activity and an adverse
employment action, . . . [but] the temporal proximity must be ‘very close.’” Clark
Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (emphasis added). A time
period as much as one month between the protected activity and the adverse action
is not too protracted to support causation. Wideman v. Wal-mart Stores, Inc., 141
F.3d 1453, 1457 (11th Cir. 1998). But in the absence of any other evidence, we
have also found three months between the protected activity and an adverse
employment action to have been insufficient to establish causation. Drago v.
Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006); see also Wascura v. City of South
Miami, 257 F.3d 1238, 1248 (11th Cir. 2001) (holding that, by itself, three and
one-half months between protected activity and adverse action was insufficient to
prove causation).
On appeal, Plaintiff argues that the district court erred in finding that she
failed to prove the necessary causal nexus between her December 2010 EEOC
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charge and the Hospital’s decision, fifteen months later, to fire her. She
acknowledges that this one-year plus time span between the protected activity and
her ouster by the Hospital exceeds the length of time that our caselaw generally
recognizes as being short enough to imply a causal connection. She counters,
however, that, in reality, the Hospital had decided to fire her immediately after her
initial internal complaint in August 2010 but, to avoid any claim of retaliation, it
delayed in actually pulling the trigger on this decision until enough time had
passed to allow it to avoid suspicion.
The problem with Plaintiff’s argument is that she has no evidence to support
it. On this subject, Kendrick testified that discussions about Plaintiff’s poor
interactions with others began in August 2010 but that discussions about firing her
did not occur until March 2012, the same month she was fired. In short, Plaintiff’s
argument is speculative and does not undermine the Hospital’s argument that
Plaintiff has failed to show a causal connection between her complaints and her
later termination.
Plaintiff also offers a second argument, which is that she continually
engaged in protected activity from the time she filed her first internal complaint in
August 2010 until she was fired in March 2012 and that her series of protected
activities, accompanied by a series of alleged adverse employment actions, should
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be bundled up and considered as a totality of circumstances to prove causation by
temporal proximity.
A plaintiff who relies on a theory of temporal proximity must identify a
specific instance of a protected activity that is known to the employer’s decision-
maker and that shortly precedes an adverse employment action. See Wideman, 141
F.3d at 1457 (calculating time period between filing of EEOC charge and adverse
action); Drago, 453 F.3d at 1308 (calculating time period between verbal
complaints to manager and filing of EEO complaint and adverse action). On the
record before us, the latest undisputed instance of Plaintiff’s protected activity
occurred on July 29, 2011, when she complained to Human Resources that the
internal investigation was “retaliatory.” This was approximately eight months
before the Hospital fired her, which again is too remote in time to support an
inference of causation without more evidence, and Plaintiff has presented no
additional evidence.
But Plaintiff offers another wrinkle to her “temporal proximity” argument.
She notes that because her attorney submitted a series of “open record act” requests
to the Hospital to support her December 2010 EEOC charge, with the latest of
these occurring in the same month she was fired (March 2012), her last protected
act should be deemed to have occurred at that time. Plaintiff cites no authority for
the proposition that, to keep the causal nexus window open, a Plaintiff can
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continue refreshing what might otherwise be deemed stale protected activity,
merely by repeatedly seeking information from the employer that might shore up
the long-ago complaint. Further, there is no evidence that the Hospital was even
aware of Plaintiff’s latest, March 2012 “open records act” request.
But, at any rate, we will assume, with more than a little skepticism, that
Plaintiff provided sufficient evidence of temporal proximity to keep her claim alive
at the prima facie stage, thereby shifting the burden to the Hospital to show a
neutral non-retaliatory reason for firing her. However, as noted supra at 20–21,
the Hospital has offered non-discriminatory reasons for terminating Plaintiff’s
employment that are sufficient to defeat her sex discrimination claim. And those
same reasons likewise remain powerful enough to defeat her retaliation claims.
Thus, we conclude that the Hospital presented abundant evidence of
Plaintiff’s multiple instances of misconduct and her ongoing interpersonal
workplace conflicts, sufficient to justify a decision to terminate her. Plaintiff has
not offered any evidence that those reasons were pretextual. Brown, 597 F.3d at
1181. Accordingly, Plaintiff’s retaliatory discharge claim also fails and we affirm
the district court’s grant of summary judgment on this claim.
D. Hostile Work Environment Claim
“To establish a hostile work environment claim under Title VII, the plaintiff
must show that the workplace is permeated with discriminatory intimidation,
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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 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). To make out a sex-
based hostile work environment claim, one need not show that the environment
was hostile in a sexual manner, but merely that it was hostile because of the
plaintiff’s gender. See, e.g., Onacle v. Sundown Offshore Servs., Inc., 523 U.S. 75,
80 (1998) (holding that a woman may establish non-sexual, gender-based
harassment by showing that the plaintiff is harassed in sex-specific and derogatory
terms as to make it clear that the harasser is motivated by general hostility to the
presence of women in the workplace).
The requirement that the harassment be “severe or pervasive” contains an
objective and subjective element. The behavior must result in an environment
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“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). In evaluating the severity of the
harassment, we consider the totality of the 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).
Plaintiff alleged gender-based and retaliation-based theories for her hostile
work environment claim, and the district court found that Plaintiff failed to prove
either basis for the claim. See Gowski v. Peake, 682 F.3d 1299, 1312 (11th Cir.
2012) (recognizing a cause of action for a Title VII retaliatory hostile work
environment claim). We agree with the district court. Plaintiff cited four incidents
to support her gender-based hostile work environment claim: (1) not being
selected to attend the two Hospital meetings because she was “too
confrontational;” (2) Dr. Marks confronting and yelling at her on August 19, 2010;
(3) being humiliated at the November 18, 2010 meeting about her unfair
scheduling; and (4) after Plaintiff left that meeting, Dr. Macaluso asking the other
doctors to document their complaints about Plaintiff. The district court was correct
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that Plaintiff failed to present any evidence that these events occurred because of
her gender or were motivated by hostility to women in the workplace.
With respect to Plaintiff’s retaliatory hostile work environment claim, the
district court correctly found that Plaintiff failed to prove but-for causation
required to establish a prima facie case. See Univ. of Tex. Sw. Med. Ctr. v. Nassar,
___ U.S. ___, 133 S. Ct. 2517, 2534 (2013) (“a plaintiff making a retaliation claim
under [Title VII] must establish that [] her protected activity was a but-for cause of
the alleged adverse action by the employer”). Both meetings that Plaintiff was not
selected to attend occurred prior to her first internal complaint made on August 20,
2010. Additionally, Plaintiff failed to present evidence that the two physicians
who shouted at her in the November 2010 meeting were aware of her August 2010
internal complaints. See Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791,
799 (11th Cir. 2000) (a decision-maker must have knowledge that the employee
engaged in protected activity for a retaliation claim be actionable). Setting aside
those incidents, what remains are one or two unpleasant meetings insufficient to
support a retaliatory hostile work environment claim.
Nor has Plaintiff offered any evidence that these incidents were motivated
by her gender. At most, the incidents Plaintiff alleges demonstrate that her
difficulties with co-workers resulted from serious and ongoing interpersonal
conflicts between Plaintiff and her co-workers. We have emphasized that Title VII
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is not a “general civility code” and does not make “ordinary [workplace]
tribulations” actionable, so not all objectionable language and conduct will support
a Title VII harassment claim. Cotton v. Cracker Barrel Old Country Store, Inc.,
434 F.3d 1227, 1234 (11th Cir. 2006) (internal quotations omitted). Similarly,
personal animosity is not the type of harassment prohibited by Title VII, and a
plaintiff cannot turn a “personal feud” into a Title VII claim. McCollum v. Bolger,
794 F.2d 602, 610 (11th Cir. 1986); see also Vore v. Indiana Bell Tel. Co., Inc., 32
F.3d 1161, 1162 (7th Cir. 1994) (“[P]ersonality conflicts between employees are
not the business of the federal courts.”).
Moreover, even if Plaintiff had presented evidence that the incidents were
motivated by her gender or were retaliatory in nature, the totality of the
circumstances was not sufficiently severe or pervasive to support her claim.
Compare McCann v. Tillman, 526 F.3d 1370, 1378–79 (11th Cir. 2008) (a few
instances of racially derogatory language over a period of two and one-half years
were “too sporadic and isolated” to qualify as severe or pervasive) with Miller v.
Kenworth of Dothan, Inc., 277 F.3d 1269, 1276–77 (11th Cir. 2002) (severe and
pervasive conditions existed where co-workers called plaintiff racially offensive
names three to four times per day). The few instances Plaintiff cites are not
sufficiently egregious or frequent to support a claim of a hostile work environment.
Thus, Plaintiff’s hostile work environment claims also fail.
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IV. Conclusion
For the above reasons, we find no reversible error in the district court’s grant
of summary judgment in favor of the Hospital on all claims. Accordingly, we
affirm the final judgment.
AFFIRMED.
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