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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11275
Non-Argument Calendar
____________________
DANA HAMPTON,
Plaintiff-Appellant,
versus
AMEDISYS GEORGIA, LLC,
d.b.a. Central Home Health Care.
an Amedisys Company,
Defendant,
LAURA DICKERSON,
AMEDISYS HOLDING, LLC.,
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2 Opinion of the Court 22-11275
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-01874-WMR
____________________
Before JORDAN, BRANCH and DUBINA, Circuit Judges.
PER CURIAM:
Appellant Dana Hampton, an African-American woman, ap-
peals from the district court’s order granting summary judgment
to Amedisys Georgia, LLC (“Amedisys”), her former employer and
Laura Dickerson, her former supervisor (collectively “the defend-
ants”), in her case alleging race discrimination under
42
U.S.C. § 1981, retaliation under § 1981 and Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-2, 3, and state
law intentional infliction of emotional distress and negligent reten-
tion claims. In her complaint, Hampton alleged that Dickerson ter-
minated her unlawfully because of her race, that Dickerson knew
of her racial discrimination claim and retaliated against her by ter-
minating her, that Dickerson had racist tendencies and treated the
Caucasian employees more favorably, and that Dickerson acted
outrageously when she terminated Hampton.
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22-11275 Opinion of the Court 3
Hampton argues on appeal, with respect to her race discrim-
ination claim, that the district court erred in concluding that she
did not identify a comparator and that she failed to show that her
termination was pretextual. In other words, Hampton failed to
show that Amedisys terminated her employment because she falsi-
fied documents when she entered an incorrect payroll code, “A-
code,” after Dickerson told her that she misused the code. She also
argues, with respect to her retaliation claim, that the district court
erred in determining that Dickerson, who terminated her, was un-
aware that Hampton engaged in any protected activity prior to fir-
ing her, and that she did not show pretext. Additionally, Hampton
argues that the district court erred in finding that she did not pre-
sent a “convincing mosaic” of circumstantial evidence to support
her discrimination and retaliation claims. Further, she argues that
the district court erred in granting summary judgment to Amedisys
and Dickerson with respect to her state law claims. Having read
the parties’ briefs and reviewed the record, we affirm the district
court’s grant of summary judgment to the defendants.
I.
We review a district court’s grant of summary judgment de
novo, “viewing all the evidence, and drawing all reasonable infer-
ences, in favor of the non-moving party.” Vessels v. Atlanta Indep.
Sch. Sys.,
408 F.3d 763, 767 (11th Cir. 2005). “We will affirm the
grant of summary judgment only if there is no genuine issue as to
any material fact, and the moving party is entitled to judgment as
a matter of law.”
Id. For a factual issue to be genuine, it “must
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4 Opinion of the Court 22-11275
have a real basis in the record.” Ellis v. England,
432 F.3d 1321,
1326 (11th Cir. 2005). “[M]ere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary judgment
motion.”
Id.
II.
Section 1981 prohibits intentional race discrimination in the
making and enforcement of public and private contracts, including
employment contracts.
42 U.S.C. § 1981; Johnson v. Ry. Express
Agency,
421 U.S. 454, 459-60,
95 S. Ct. 1716, 1720 (1975). Discrim-
ination claims arising under § 1981 “have the same requirements of
proof and use the same analytical framework” as Title VII claims.
Chapter 7 Trustee v. Gate Gourmet, Inc.,
683 F.3d 1249, 1256-57
(11th Cir. 2012). Section 1981 discrimination claims that rely on
circumstantial evidence are evaluated under the burden-shifting
framework set forth in McDonnell Douglas v. Green,
411 U.S. 792,
93 S. Ct. 1817 (1973). Id. at 1255.
Under McDonnell Douglas, the plaintiff bears the initial bur-
den to establish a prima facie case of discrimination. Lewis v. City
of Union City, Ga.,
918 F.3d 1213, 1220 (11th Cir. 2019) (en banc)
(“Lewis I”). To establish a prima facie case, a plaintiff must show
that (1) she belonged to a protected class, (2) she was subjected to
an adverse action, (3) she was qualified to perform her job, and (4)
her employer treated “similarly situated” employees outside her
class more favorably.
Id. at 1220-21.
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22-11275 Opinion of the Court 5
To prove that an employer treated a similarly situated indi-
vidual outside of an employee’s protected class more favorably, the
employee must show that she and a comparator were “similarly
situated in all material respects.” Lewis I, 918 F.3d at 1229. Gener-
ally, a “similarly situated” comparator will have “engaged in the
same basic conduct (or misconduct) as the plaintiff,” “been subject
to the same employment policy,” and “will share the plaintiff’s em-
ployment or disciplinary history.” Id. at 1227-28. If the plaintiff
succeeds in making out a prima facie case of discrimination, “the
burden shifts to the defendant to articulate a legitimate, nondis-
criminatory reason for its actions.” Id. at 1221.
If the defendant meets that burden, the plaintiff must
“demonstrate that the defendant’s proffered reason was merely a
pretext for unlawful discrimination.” Id. To show pretext, a plain-
tiff must show both that the proffered reason was false, and that
discrimination was the true reason. Ring v. Boca Ciega Yacht Club,
Inc.,
4 F.4th 1149, 1163 (11th Cir. 2021). “The inquiry into pretext
centers on the employer’s beliefs, not the employee’s beliefs and .
. . not on reality as it exists outside of the decision-maker’s head.”
Alvarez v. Royal Atl. Developers, Inc.,
610 F.3d 1253, 1266 (11th
Cir. 2010).
The record supports the district court’s finding that Hamp-
ton did not identify a similarly situated comparator whom the de-
fendants treated more favorably than her. Hampton repeatedly
makes blanket allegations that non-African American employees
often misused the A-Code and were not terminated from their
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6 Opinion of the Court 22-11275
employment; however, she fails to specifically identify any em-
ployee, other than Shante Collins, a clinical manager (“Collins”)
and Hampton herself, who misused the A-Code, let alone an em-
ployee who was “similarly situated in all material respects.” Lewis,
918 F.3d at 1218.
As the district court found, Collins is not an appropriate
comparator because Collins is not outside of Hampton’s protected
class; Collins is also an African American female. Moreover, Col-
lins is not an appropriate comparator because Collins did not en-
gage in the same misconduct as Hampton. Dickerson testified that
Collins was not terminated for improperly using the A-Code be-
cause Dickerson counseled her about it, and she ceased using the
A-Code. On the contrary, after Dickerson counseled Hampton on
her improper use of the A-Code, Hampton proceeded to use the
code two more times.
Hampton repeatedly claimed that Dickerson treated her dif-
ferently than non-African American and Caucasian colleagues, but
she did not provide evidence of who Dickerson allegedly treated
differently, and how that different treatment was related to Hamp-
ton’s race. Hampton testified that she felt Dickerson singled her
out for harassment, but this mere allegation does not indicate that
Dickerson treated her differently because of her race. As the dis-
trict court correctly concluded, without identifying an appropriate
comparator, Hampton fails to satisfy the fourth element of a prima
facie case of discrimination.
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22-11275 Opinion of the Court 7
Further, even if Hampton established a prima facie case, she
cannot show that the defendants’ proffered reason for terminating
her, inappropriate A-code use, was pretextual. Dickerson termi-
nated Hampton’s employment after Hampton misused the A-
Code, Dickerson counseled Hampton on the appropriate use of the
A-Code, and Hampton proceeded to use the A-Code two addi-
tional times. Dickerson thus terminated Hampton’s employment
for falsifying payroll records, which is a critical offense violation
under the company’s policy. Because we conclude that Amedisys
and Dickerson have adequately explained their rationale for termi-
nating Hampton, and Hampton has not presented evidence that
their reasons are merely pretexts for discrimination, we affirm the
district court’s grant of summary judgment to the defendants on
Hampton’s claim of racial discrimination.
III.
Under Title VII, an employer may not retaliate against an
employee because she has opposed any practice made unlawful un-
der that law, or because she has made a charge or participated in a
proceeding thereunder. 42 U.S.C. § 2000e-3(a). Employment-re-
lated retaliation claims are also cognizable under § 1981. CBOCS
West, Inc. v. Humphries,
553 U.S. 442, 452,
128 S. Ct. 1951, 1958
(2008).
A retaliation claim based on circumstantial evidence is also
analyzed under the McDonnell Douglas burden-shifting frame-
work. Ring, 4 F.4th at 1163. Under McDonnell Douglas, a plaintiff
must first establish a prima facie case of retaliation. Id. To establish
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8 Opinion of the Court 22-11275
a prima facie case of retaliation, a plaintiff may show that: (1) she
engaged in statutorily protected expression; (2) she suffered an ad-
verse action; and (3) the adverse action was causally related to the
protected expression. Id.; see also Burlington Northern & Santa Fe
Ry. Co. v. White,
548 U.S. 53, 68,
126 S. Ct. 2405, 2415 (2006) (“[A]
plaintiff must show that a reasonable employee would have found
the challenged action materially adverse.”).
For prima facie purposes, the causation requirement has
been construed broadly such that “a plaintiff merely has to prove
that the protected activity and the negative employment action are
not completely unrelated.” Pennington v. City of Huntsville,
261
F.3d 1262, 1266 (11th Cir. 2001) (quotation marks omitted). How-
ever, at a minimum, an employee must show that “the deci-
sionmaker actually knew about the employee’s protected expres-
sion.” Martin v. Fin. Asset Mgmt. Sys., Inc.,
959 F.3d 1048, 1053
(11th Cir. 2020). An employer’s awareness “can be established
through circumstantial evidence—but not by unsupported infer-
ence.”
Id. Particularly, evidence that an individual “could have
told” a decision maker about an employee’s protected activity con-
stitutes “pure speculation,” and does not defeat summary judg-
ment when the decision maker denies knowledge of the em-
ployee’s activity.
Id. at 1054.
The record demonstrates that the district court did not err
in granting summary judgment to Amedisys and Dickerson on
Hampton’s claim of retaliation. Hampton did not establish a prima
facie case of retaliation because she did not show that Dickerson
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22-11275 Opinion of the Court 9
knew of any complaint of racial discrimination before Dickerson
terminated Hampton’s employment. Hampton’s testimony does
not indicate she complained to the Human Resources Representa-
tive, Beau Bergeron, about racially motivated conduct by Dicker-
son; Hampton does not mention race at all in her recollection of
her phone call with Bergeron. Hampton further attested that on
July 10, 2019, she had a phone conversation with Jessica Fernald,
another Human Resources Representative, during which she com-
plained about Dickerson’s racial discrimination and harassment.
After the conversation, Hampton stated that she sent Fernald an
email providing examples of the racial discrimination and harass-
ment from Dickerson that she relayed during the phone conversa-
tion. However, the record indicates that Hampton’s email does
not mention racially motivated conduct by Dickerson. Rather, the
email included numerous incidents and grievances she had with
Dickerson, yet it failed to mention even once how Hampton’s race
influenced the issues she had with Dickerson.
Further, as discussed above, Hampton did not show that the
defendants’ proffered reason for terminating her was pretextual.
Hampton offers no evidence that Dickerson knew of Hampton’s
complaints on June 26, 2019, or July 10, 2019, prior to her termina-
tion. Hampton seems to assume that Dickerson knew about the
complaints based on the temporal proximity between Hampton’s
July 10 complaint, and Dickerson’s contact with Fernald on July 11
seeking to terminate Hampton’s employment. However, in her
declaration, Dickerson attested that she was not aware that
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10 Opinion of the Court 22-11275
Hampton had lodged a complaint of racial discrimination and har-
assment against her.
Hampton’s assumption that Dickerson knew about her June
26, 2019, and July 10, 2019, complaints is not supported by the rec-
ord. The evidence demonstrates that Dickerson warned Hampton
on two occasions not to use the A-Code for patient visits made dur-
ing regular business hours. However, Hampton continued to use
the A-Code two additional times despite Dickerson’s warnings to
her that she was misusing the payroll code. Dickerson then con-
tacted Human Resources about Hampton’s termination. Hamp-
ton offers no evidence that “the reason proffered was not the real
basis for the decision, but a pretext for discrimination.” Richardson
v. Leeds Police Dep’t,
71 F.3d 801, 806 (11th Cir. 1995). Thus, we
affirm the district court’s grant of summary judgment to the de-
fendants on Hampton’s retaliation claim.
IV.
We have held that the McDonnell Douglas framework is not
the only way to defeat a summary judgment motion in the Title
VII discrimination context. Smith v. Lockheed-Martin Corp.,
644 F.3d 1321, 1328 (11th Cir. 2011). A plaintiff can also survive
summary judgment if she presents “a convincing mosaic of circum-
stantial evidence” that raises a reasonable inference that her em-
ployer intentionally discriminated against her.
Id. A plaintiff may
show a “convincing mosaic” by presenting evidence that demon-
strates (1) suspicious timing, ambiguous statements, and “other
bits and pieces from which an inference of discriminatory intent
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22-11275 Opinion of the Court 11
might be drawn,” (2) “systematically better treatment of similarly
situated employees,” and (3) “that the employer’s justification is
pretextual.” Lewis v. City of Union City, Ga.,
934 F.3d 1169, 1185
(11th Cir. 2019) (“Lewis II”) (internal quotation marks omitted).
We have not held, in a published opinion, that the “convinc-
ing mosaic” theory is applicable in Title VII retaliation cases. In
Bailey v. Metro Ambulance Servs., Inc.,
992 F.3d 1265 (11th Cir.
2021), we assumed without deciding that a “convincing mosaic”
theory could be used to establish a retaliation claim, but concluded
that the plaintiff had not shown a “convincing mosaic” for the same
reasons that his retaliation claim failed under the McDonnell Doug-
las framework.
Id. at 1273 n.2.
Likewise, even assuming that the “convincing mosaic” the-
ory is applicable in the retaliation context, we conclude that the
district court properly found that Hampton did not present a con-
vincing mosaic of circumstantial evidence to support her retalia-
tion claim. As stated earlier, the record belies Hampton’s claim
that Dickerson retaliated against her because there is no evidence
that Dickerson knew Hampton had complained about Dickerson’s
alleged discriminatory animus. Thus, Hampton cannot demon-
strate a convincing mosaic to support her retaliation claim under
either theory. Accordingly, we affirm the district court’s grant of
summary judgment to the defendants with respect to Hampton’s
convincing mosaic arguments.
V.
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“[A]n appellant abandons a claim when [s]he either makes
only passing references to it or raises it in a perfunctory manner
without supporting arguments and authority.” Sapuppo v. Allstate
Floridian Ins. Co.,
739 F.3d 678, 681 (11th Cir. 2014). To adequately
brief a claim, an appellant must “plainly and prominently” raise it,
“for instance by devoting a discrete section of his argument to
those claims.”
Id. Additionally, “[w]hen an appellant fails to chal-
lenge properly on appeal one of the grounds on which the district
court based its judgment, he is deemed to have abandoned any
challenge of that ground, and it follows that the judgment is due to
be affirmed.”
Id. at 680.
To support an intentional infliction of emotional distress
claim under Georgia law, a plaintiff must show that (1) the conduct
was intentional or reckless, (2) the conduct was extreme and out-
rageous, (3) there was a causal connection between the wrongful
conduct and the emotional distress, and (4) the emotional distress
was severe. Plantation at Bay Creek Homeowners Ass’n v. Glasier,
825 S.E.2d 542, 550 (Ga. Ct. App. 2019).
We conclude that Hampton has abandoned on appeal her
intentional infliction of emotional distress claim because she does
not assert that there was a causal connection between wrongful
conduct and severe emotional distress. The record provides no ev-
idence to show that the defendants’ conduct was intentional or
reckless, or extreme and outrageous. Thus, we affirm the district
court’s judgment as to this claim.
VI.
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Under Georgia law, to support a claim of negligent reten-
tion, “a claimant must show that the employer knew or should
have known of the employee’s propensity to engage in the conduct
which caused the plaintiff’s injury.” Herrin Bus. Prods., Inc v. Er-
gle,
563 S.E.2d 442, 446 (Ga. Ct. App. 2002). A negligent retention
claim is “necessarily derivative and can only survive summary
judgment to the extent that the underlying substantive claims sur-
vive the same.” Metro. Atlanta Rapid Transit Auth. v. Mosley,
634
S.E.2d 466, 489 (Ga. Ct. App. 2006).
We conclude that the district court properly granted sum-
mary judgment to the defendants on each of Hampton’s underly-
ing claims; thus, her derivative negligent retention claim also fails.
See
id. Accordingly, the district court did not err in granting sum-
mary judgment to the defendants as to this claim, and we affirm its
judgment.
Based on the aforementioned reasons, we affirm the district
court’s grant of summary judgment to the defendants on Hamp-
ton’s racial discrimination claim, retaliation claim, and state law
claims.
AFFIRMED.
