Sharron Banks v. Tanner Medical Center, Inc. ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 14-14623
Non-Argument Calendar
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D.C. Docket No. 1:12-cv-04450-RWS
SHARRON BANKS,
Plaintiff-Appellant,
versus
TANNER MEDICAL CENTER, INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(October 21, 2016)
Before ED CARNES, Chief Judge, TJOFLAT, and JILL PRYOR, Circuit Judges.
PER CURIAM:
Sharron Banks, proceeding pro se, filed a lawsuit against Tanner Medical
Center, Inc., alleging that it engaged in race discrimination and retaliated against
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her. A magistrate judge issued a report recommending that the district court grant
summary judgment to Tanner because Banks was judicially estopped from
pursuing her claims and because her claims failed on the merits. Banks did not
timely object, and the district court adopted the report and recommendation and
granted summary judgment in Tanner’s favor. This is Banks’ appeal.1
I.
In September 2010 Tanner hired Banks, an African-American female and
registered nurse, to work on an as-needed basis. 2 Tanner requires every newly
hired employee to complete an orientation that involves, among other things, a
seasoned employee training the new employee on Tanner’s policies, protocols, and
procedures. Tanner assigned two employees to train Banks. During that training,
one of those employees, John Larkee, made comments to Banks about her race and
her blonde hair. Banks found the comments offensive but she offered no evidence
1
Eleventh Circuit Rule 3–1, which took effect on December 1, 2014, provides that “[a]
party failing to object to a magistrate judge’s findings or recommendations . . . waives the right
to challenge on appeal the district court’s order based on unobjected-to factual and legal
conclusions,” so long as the magistrate judge informs the party of, among other things, “the
consequences on appeal for failing to object.” 11th Cir. R. 3–1. To the extent that the rule
applies to appeals of orders entered before it took effect (such as the order appealed here), it does
not apply to this appeal because the magistrate judge did not give Banks complete notice of the
consequences of failing to timely object. Tanner argues that we should review for plain error
under the standard we used before the enactment of Rule 3–1. We need not decide whether that
standard applies here because even under a de novo standard of review, the summary judgment
against her is due to be affirmed.
2
“At summary judgment we view the facts in the light most favorable to the nonmoving
party.” Crawford v. Carroll, 529 F.3d 961, 963 n.1 (11th Cir. 2008) (citations omitted). We
recount the facts in that light, drawing from the “evidentiary materials on file.” Id.
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showing that she complained to her supervisors or to the human resources
department about them.
While the training component of the orientation process usually lasts
between three and six weeks, Banks never completed her training to Tanner’s
satisfaction during the fourteen months she worked there. During her first few
months at Tanner, patient numbers were low and, because she was hired to work
on an as-needed basis, she was seldom scheduled to work. And when patient
numbers later increased, her supervisors believed that she needed additional
training to refresh her memory on Tanner’s procedures because she had worked so
infrequently in the previous months. Banks refused Tanner’s attempts to provide
her with that additional training, and Tanner eventually stopped scheduling her to
work at all.
Banks contacted Dathan Sorrow, who worked in Tanner’s human resources
department, to complain about how long her orientation was taking and about not
being placed on the schedule to work. Sorrow in turn asked Banks’ supervisors,
Sharon Taylor and Natasha Ryles, why she was still in orientation and not being
scheduled to work any shifts. Taylor explained that she had stopped placing Banks
on the schedule because she had refused to complete her training. Sorrow, Taylor,
and Ryles agreed that before they decided to terminate Banks’ employment, Ryles
would contact her and see if she had changed her mind and was willing to finish
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the training that they believed she needed. Ryles called Banks and left several
messages, but Banks did not return those calls. On November 22, 2011 Tanner
terminated Banks’ employment, listing her failure “to fulfill [nursing]
[r]equirements” as the basis. 3 Tanner hired an African-American male nurse to
replace her.
II.
Title VII prohibits an employer from discriminating “against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)(1). When a plaintiff has no direct evidence of discrimination,
she may overcome summary judgment through the use of circumstantial evidence
under the burden-shifting framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), and Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981). Under this framework
the plaintiff bears the initial burden of showing a prima facie case of
discrimination. McDonnell Douglas Corp., 411 U.S. at 802, 93 S. Ct. at 1824. If
the plaintiff makes that showing, the burden shifts to the employer “to articulate
some legitimate, nondiscriminatory reason for the employee’s rejection.” Id.
3
The record is unclear as to whether Sorrow, Taylor, and Ryles were the actual decision
makers as to termination of Banks’ employment or whether they recommended it to someone
else who made the termination decision. We will assume that Sorrow, Taylor, and Ryles made
the final decision because even if they did, Tanner is still entitled to summary judgment.
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“[S]hould the defendant carry this burden, the plaintiff must then have an
opportunity to prove by a preponderance of the evidence that the legitimate reasons
offered by the defendant were not its true reasons, but were pretext for
discrimination.” Burdine, 450 U.S. at 252, 101 S. Ct. at 1093.
Banks contends that Tanner discriminated against her based on her race
when it ended her employment. She offers no direct evidence of discrimination
and attempts to overcome summary judgment through the burden-shifting
framework. To make out a prima facie case of racial discrimination under the
burden-shifting framework, Banks must show that (1) she “is a member of a
protected racial class”; (2) she “was qualified for the position”; (3) she
“experienced an adverse employment action”; and (4) she “was replaced by
someone outside of h[er] protected class or received less favorable treatment than a
similarly situated person outside of h[er] protected class.” Flowers v. Troup Cty.,
Ga., Sch. Dist., 803 F.3d 1327, 1336 (11th Cir. 2015).
Banks cannot make that showing because she cannot meet the fourth
element — showing that she was replaced by someone outside of her protected
class or received less favorable treatment than a similarly situated person outside
of her protected class. Banks does not dispute that she was replaced by a black
male, and she does claim discrimination on the basis of sex. Instead, she argues
that she received less favorable treatment than a similarly situated person outside
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of her protected class, pointing to Mary Caparo, a white nurse whom Tanner hired
around the same time it hired Banks. Banks offers no evidence, however, that
Tanner treated Caparo differently, and in fact the record shows that Tanner fired
Caparo eight days after it fired Banks, with Caparo’s notice of termination listing
the same reason given for Banks’ termination: failure to fulfill nursing
requirements. Because Banks points to no evidence that she received less
favorable treatment than a similarly situated employee outside of her protected
class, she cannot establish a prima facie showing of race discrimination. The
district court properly granted summary judgment on that claim.
Banks also contends that Tanner retaliated against her by firing her for
complaining about co-employee Larkee. Under Title VII’s anti-retaliation
provision it is 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.”
42 U.S.C. § 2000e-3. Like her race discrimination claim, Banks’ retaliation claim
fails because she has not established a prima facie case. To make a prima facie
showing of retaliation, a plaintiff must show that (1) she engaged in protected
conduct; (2) she suffered an adverse action; and (3) a causal relation exists between
the protected conduct and adverse action. See Alvarez v. Royal Atl. Developers,
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Inc., 610 F.3d 1253, 1268 (11th Cir. 2010) (quoting McCann v. Tillman, 526 F.3d
1370, 1375 (11th Cir. 2008)).
While Banks asserts that she complained to supervisors about Larkee’s
racial comments, she points to no evidence supporting that assertion. The evidence
instead shows that when Banks complained, she complained about the scheduling
and the fact that she was still in orientation, stating that “[i]t was obvious that the
ball was dropped on [her]” and that she was “being punished and prosecuted for a
mistake that lies with management and not [her]self.” Without evidence that she
complained to supervisors or to the human resources department about Larkee’s
race-based comments, she has not made out a a prima facie case of retaliation. The
district court’s grant of summary judgment in Tanner’s favor on her retaliation
claim was proper. 4
AFFIRMED.
4
In the report and recommendation addressing Tanner’s motion for summary judgment,
the magistrate judge also recommended that the district court deny Banks’ four motions for
default judgment against Tanner, which she had filed based on her belief that Tanner had
committed discovery violations. To the extent Banks’ notice of appeal covers the district court’s
adoption of that portion of the magistrate judge’s report and recommendation, she failed to
discuss those claims in her brief and thereby abandoned them. See Sapuppo v. Allstate Floridian
Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have long held that an appellant abandons a
claim when he either makes only passing references to it or raises it in a perfunctory manner
without supporting arguments and authority.”).
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