USCA11 Case: 21-10638 Date Filed: 07/05/2022 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10638
____________________
AUDREY CINDERELLA THOMAS,
Plaintiff-Appellant,
versus
JENNIFER ESTERLE,
KIM ZUKOWSKI,
RGH ENTERPRISES, INC.,
Defendants-Appellees.
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2 Opinion of the Court 21-10638
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:18-cv-00686-SCJ
____________________
Before WILLIAM PRYOR, Chief Judge, LUCK, and ED CARNES, Circuit
Judges.
PER CURIAM:
Audrey Cinderella Thomas appeals the grant of summary
judgment against her in her
42 U.S.C. § 1981 lawsuit in which she
raised claims of racial discrimination, harassment, and retaliation
against her former employer, RGH Enterprises, and two of her su-
pervisors (collectively “RGH”). Because the parties and district
court are familiar with the record and procedural history, we will
largely confine our discussion in this unpublished opinion to the
reasons we are affirming the district court’s judgment.
I. The Retaliation Claim
We begin with the retaliation claim, which Thomas spends
most of the argument section of her brief talking about. Sec-
tion 1981 protects an employee from adverse action by her em-
ployer because she engaged in protected conduct. See CBOCS W.,
Inc. v. Humphries,
553 U.S. 442, 451–52 (2008) (holding that § 1981
encompasses retaliation claims); Bryant v. Jones,
575 F.3d 1281,
1307–08 (11th Cir. 2009) (holding that a retaliation claim under
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21-10638 Opinion of the Court 3
§ 1981 is analyzed under the same framework as a retaliation claim
under Title VII); Standard v. A.B.E.L. Servs., Inc.,
161 F.3d 1318,
1330 (11th Cir.1998) (stating that Title VII and § 1981 “have the
same requirements of proof and use the same [McDonnell Doug-
las/Burdine] analytical framework”), abrogated on other grounds
by Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006).
Protected conduct includes opposition to any practice prohibited
by the statute, and participation in any investigation or other pro-
ceeding to enforce rights under the statute. See 42 U.S.C. § 2000e-
3(a).
Putting aside the question of whether Thomas has properly
preserved and presented her retaliation claim, the district court cor-
rectly reasoned that the claim failed on the merits anyway because
of her failure to offer any evidence that she engaged in any pro-
tected conduct that was a “but-for” cause of any adverse action.
Bailey v. Metro Ambulance Servs., Inc.,
992 F.3d 1265, 1277 (11th
Cir. 2021) (“Significantly, when it comes to retaliation claims, a
plaintiff must demonstrate that his participation in protected activ-
ity was [a] ‘but-for’ cause of the adverse employment action.”)
(bracketed word altered from “the” to “a” to comply with Bostock
v. Clayton Cnty.,
140 S. Ct. 1731, 1739 (2020)); Frazier-White v.
Gee,
818 F.3d 1249, 1258 (11th Cir. 2016); see Bryant,
575 F.3d at
1307–08 (“[A] plaintiff alleging retaliation must first establish . . . a
causal link between the protected activity and the adverse ac-
tion.”).
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4 Opinion of the Court 21-10638
Thomas contends that keeping a notebook about what she
perceived to be the unlawful or unfair conduct of RGH was pro-
tected conduct. We have serious doubts about that, but even if it
were protected conduct she cannot satisfy the causal link require-
ment with the notebook. The notebook was confiscated, either in-
tentionally or inadvertently, from her after the decision was made
to terminate her. There is no genuine issue of material fact about
whether any decision maker knew before then that she was keep-
ing notes about what she perceived to be unfair or unlawful treat-
ment.
All that the record reveals about any supervisor or decision
maker knowing anything about Thomas’ notebook is that she re-
ferred to it when attempting to explain to her supervisor why the
second of her five policy violations had occurred. In that conver-
sation, Thomas referred to having written in “my notebook” how
her computer had frozen and she had asked another employee to
take care of the call, but that other employee had not done so.
Thomas testified that she offered to let her supervisor see what she
had written in her notebook about those events, but the supervisor
didn’t look at it. In any event, the notes Thomas had made about
her computer freezing up did not oppose any unfair or unlawful
treatment or amount to participation in a § 1981 proceeding. Nor
did she say anything that would have led her supervisor to believe
the notebook was about protected conduct or that itself amounted
to protected conduct. And, to repeat, the supervisor did not look
at the contents of the notebook.
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21-10638 Opinion of the Court 5
Absent proof that any supervisor or decision maker knew
about the contents of the notebook before Thomas was fired, it
could not have been the motivation for her being fired. Unwitting
retaliation is an oxymoron in the law, just as it is in the common
understanding of the word “retaliate.” See Clover v. Total Sys.
Servs., Inc.,
176 F.3d 1346, 1354 (11th Cir. 1999) (“At a minimum,
a plaintiff must generally establish that the employer was actually
aware of the protected [activity] at the time it took adverse ac-
tion.”) (quotation marks omitted). Summary judgment was proper
on the retaliation claim.
Thomas’ spoliation argument adds nothing to her retalia-
tion claim. Spoliation concerns the loss or destruction of evidence
that prejudices a party. Nothing that was in the lost or destroyed
notebook could possibly have prejudiced Thomas on the retalia-
tion claim because nothing in the notebook could have been evi-
dence that RGH knew the contents of the notebook and fired her
because of those contents. Thomas is the one who wrote in the
notebook, not RGH or any of its other employees. And there is no
evidence that anyone other than Thomas knew it contained any-
thing about protected conduct until after the decision to terminate
her had been made.
II. The Discriminatory Termination Claim
Thomas also contends that the district court erred in grant-
ing RGH summary judgment on her discriminatory treatment
claim. That claim was about termination of her employment after
she was cited for violations of policy (sometimes referred to as
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6 Opinion of the Court 21-10638
“compliance occurrences”) on five occasions from February
through June of 2016. Those citations grew out of standard office
procedure recordings of her telephone conversations with RGH’s
customers, which conversations were the primary part of her job.
In keeping with RGH’s disciplinary procedures, the first two
violations resulted in verbal warnings, and the next two resulted in
written warnings and in a “Corrective Action Form” that she was
presented and required to sign. Her fifth violation resulted in the
termination of her employment.
Thomas contends that none of the five compliance occur-
rences was justified and that at least some of them were contrary
to how she had been trained. RGH responds that they were all
fully justified and not contrary to her training. In that regard, the
first and fourth ones are particularly relevant. The first compliance
occurrence and verbal warning grew out of a phone conversation
in February of 2016 in which Thomas failed to confirm a Medicare
patient’s date of birth. Thomas argued that she had been told dur-
ing her training for the job that it was not necessary to ask for a
Medicare patient’s date of birth. Her supervisor insisted that it was
necessary.
The record contains a written “Acknowledgement Form”
signed by Thomas that certifies the training she received on No-
vember 5, 2015, “covered the three critical requirements listed be-
low” the first one of which is that “It is mandatory with each call”
that she validate who she was speaking to “along with the patient’s
name and date of birth or address.” The form also certifies that
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21-10638 Opinion of the Court 7
Thomas understood: “the importance of adhering to the require-
ments listed above and that failure to follow the necessary steps to
meet these requirements will result in corrective action(s), up to
and including termination.” Thomas does not contend that in the
phone conversations leading to either the first or fourth compli-
ance occurrence that she asked for the patient’s date of birth or ad-
dress.
Although Thomas disagreed with her supervisor about what
was required, as the magistrate judge put it, she “eventually gave
up trying to convince her.” And there is no dispute that her super-
visor’s instruction in February of 2016 made clear to Thomas that
her supervisor insisted she ask for every Medicare patient’s date of
birth.
Despite that clear instruction she received from her supervi-
sor after the first compliance occurrence in February of 2016, three
months later (on May 17, 2016), she again failed to confirm a Med-
icare patient’s date of birth, resulting in her fourth compliance oc-
currence. (Her third compliance occurrence, which had resulted
in her first written warning, had been for her third violation; that
one was for violating a different policy requirement.) And once
again, Thomas tried to convince her supervisor she had been
trained that it was unnecessary to obtain a Medicare patient’s date
of birth. Her supervisor again instructed her it was necessary and
issued Thomas a second and final written warning.
That second and final warning was memorialized in a “Cor-
rective Action Form” Thomas and her supervisor signed on May
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8 Opinion of the Court 21-10638
26, 2016. The form warned Thomas that “Further violation of any
Company policy will result in additional corrective action up to and
including termination of employment.” The form also included
Thomas’ acknowledgement that “if there is not an immediate and
sustained improvement satisfactory to the Manager (and/or Hu-
man Resources)[,] further disciplinary action will be taken up to
and including termination.”
Despite the clear warnings and her acknowledgement of
them, Thomas’ fifth violation came the very next month. She was
the subject of a compliance occurrence for not properly verifying
the quantity of medication that a caller had remaining before she
proceeded with the order.
Following that fifth violation, and after reviewing Thomas’
disciplinary history and consulting with the HR department, her
supervisor terminated Thomas’ employment, citing what she de-
scribed as her repeated failures to comply with RGH policy.
The McDonnell Douglas framework applies in § 1981 cases.
See McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
Thomas has not identified a similarly situated comparator outside
her protected class who was treated more favorably than she was.
Nor has she shown that RGH’s stated reason for firing her –– her
disciplinary history of five violations of RGH policy and require-
ments –– was pretextual. “Provided that the proffered reason is
one that might motivate a reasonable employer, an employee must
meet [it] head on and rebut it, and [she] cannot succeed by simply
quarreling with the wisdom of that reason.” Alvarez v. Royal Atl.
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21-10638 Opinion of the Court 9
Devs. Inc.,
610 F.3d 1253, 1265–66 (11th Cir. 2010) (second altera-
tion in original). A series of repeated violations of company policy,
five in a four-month period, is a reason that might motivate a rea-
sonable employer to take disciplinary action up to and including
terminating the repeat-offender employee.
Thomas’ argument that the violations were frame-ups be-
cause she did nothing inconsistent with her training, is unpersua-
sive. As we have explained, her fourth violation was a repeat of the
first one. And after she attempted to excuse the first violation as
consistent with her training, and argued that it was, her supervisor
instructed her that it was not consistent with company policy.
Thomas was specifically warned on that occasion that it was not
acceptable. Yet, she committed exactly the same violation three
months later. Insubordination does not excuse violations, it com-
pounds them.
And there is the additional fact that Thomas’ second viola-
tion had resulted from her failure to disclose to a customer that a
call would be recorded. She does not contend that failure was con-
sistent with her training. And neither has she presented a convinc-
ing mosaic of circumstantial evidence that she was fired because of
her race. See generally, Smith v. Lockheed Martin Corp.,
644 F.3d
1321, 1328 (11th Cir. 2011).
III. The Racially Hostile Environment or Harassment Claim
Thomas’ claim that she was subjected to a racially hostile
work environment fails for a number of reasons. Her argument
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10 Opinion of the Court 21-10638
that racial harassment was established or supported by the fact that
she was disciplined for bogus reasons is unconvincing. First, as we
have just explained, Thomas was disciplined for non-bogus rea-
sons––violations of company policy. Second, in any event, a claim
of an adverse employment action, such as termination, must be
brought as a separate discrimination or retaliation claim, not as part
of a hostile-work-environment claim. See McCann v. Tillman,
526
F.3d 1370, 1378–79 (11th Cir. 2008).
Thomas also failed to show that the matters about which she
complains were racially focused, based, or motivated, and that they
were severe or pervasive. See Jones v. UPS Ground Freight,
683
F.3d 1283, 1297–99 (11th Cir. 2012). To prevail on a racially hostile
environment claim, “a 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 environ-
ment.” Butler v. Ala. Dep’t of Transp.,
536 F.3d 1209, 1214 (11th
Cir. 2008); accord Miller v. Kenworth of Dothan, Inc.,
277 F.3d
1269, 1275 (11th Cir. 2002); McCann,
526 F.3d at 1379. She has not
done that.
The district court properly granted summary judgment to
RGH on the racially hostile environment claim.
IV. Conclusion
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21-10638 Opinion of the Court 11
AFFIRMED.1
1 This case was originally scheduled for oral argument, but under 11th Cir. R.
34–3(f) it was removed from the oral argument calendar by unanimous con-
sent of the panel.
