Tajuana Frazier v. Secretary, Department of Health and Human Services ( 2017 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 16-16329
Non-Argument Calendar
________________________
D.C. Docket No. 1:14-cv-03529-WBH
TAJUANA FRAZIER,
Plaintiff-Appellant,
versus
SECRETARY, DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 29, 2017)
Before TJOFLAT, MARCUS, and ROSENBAUM, Circuit Judges.
PER CURIAM:
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Tajuana Frazier appeals the district court’s grant of summary judgment in
favor of the Secretary of the Department of Health and Human Services (“HHS”)
on her employment discrimination and retaliation claims arising under the
Rehabilitation Act of 1973 (“the Rehabilitation Act”).1 After careful review, we
affirm the grant of summary judgment.
I.
We review de novo a district court’s order granting summary judgment.
Frazier-White v. Gee, 818 F.3d 1249, 1255 (11th Cir.), cert. denied, 137 S. Ct. 592(2016). Summary judgment is appropriate where there are no genuine issues of
material fact and the movant is entitled to judgment as a matter of law. Id. An
issue of 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). Once the moving party adequately supports its motion
for summary judgment, the burden shifts to the non-moving party to identify the
specific facts that raise a genuine issue for trial. Kernel Records Oy v. Mosley, 694
F.3d 1294, 1300 (11th Cir. 2012).
In determining whether summary judgment was appropriate, we view all
evidence and draw all reasonable inferences in favor of the party opposing
1
Frazier also brought concurrent claims under the Americans with Disabilities Act, but
that statute, as the district court correctly found, is not available to her because she is a federal
employee suing the federal government. See 42 U.S.C. § 12111(5)(B).
2
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summary judgment. Id. However, inferences based on speculation are not
reasonable, and “[e]vidence that is merely colorable, or is not significantly
probative of a disputed fact cannot satisfy a party’s burden.” Id. at 1301 (internal
quotation marks omitted).
II.
In the light most favorable to Frazier, the relevant facts are as follows.
Frazier began working for the Centers for Disease Control (“CDC”), a federal
agency within HHS, as a contractor in March 2008. She worked as a
transportation assistant in the Global Travel Office of the Center for Global Health,
and her duties consisted of processing travel authorizations and country clearances
for CDC employees. In January 2012, the CDC hired Frazier as a full-time
employee, and she continued to work as a transportation assistant. Upon her hire
in January, Frazier was placed on a one-year probationary period.
The CDC hired Frazier under its Schedule A hiring authority, which allows
the federal government to hire excepted-service employees with disabilities. See 5
C.F.R. § 213.3102(u). Frazier’s disability is type 2 diabetes mellitus, a medical
impairment that affects her ability to secrete the hormone insulin. 2 Because of her
diabetes, she has to monitor her glucose levels throughout the day. As part of the
application process, Frazier disclosed that she had diabetes to LaTonya Wright-
2
The district court determined, and HHS does not challenge on appeal, that Fraizer’s
diabetes is a qualifying “disability” for purposes of the Rehabilitation Act.
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McBryde, who became her supervisor, and Kay Lawton, who was Wright-
McBryde’s supervisor.
Frazier’s “team leader” in the Global Travel Office was Reginald Powell.
Powell was responsible for assigning work to his team and supervising team
members. Though Frazier was required to follow his instructions, Powell had no
authority to discipline, hire, or fire employees.
In April 2012, Frazier was checking her glucose levels in her office with the
door closed when Powell entered without knocking. Frazier informed Powell that
she had diabetes, and she asked him for permission to keep her door closed while
treating her diabetes. Powell responded that she had to keep her door open.
Frazier then went to Wright-McBryde, who was both Powell’s and Frazier’s
supervisor, to explain the situation and make the same request. Wright-McBryde
told Frazier that she had no problem with Frazier closing her door to check her
glucose levels.
Frazier testified that after she spoke with Wright-McBryde, she began to
have problems with Powell. He entered her office without knocking on multiple
occasions, and, in her view, he began increasing her workload and giving her more
difficult assignments. Frazier also testified that on one occasion in late May 2012,
Powell assigned Frazier three assignments while she was on leave, which was
contrary to office procedure. Powell later admitted that he made a mistake.
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On July 11, 2012, after Frazier complained about what she viewed as
Powell’s inequitable work distribution, Frazier met with Wright-McBryde and
Powell. At the meeting, Frazier expressed concern that Powell was assigning her
more work than other team members. Wright-McBryde, Powell, and Frazier
reviewed statistics showing that the workload was being equitably distributed.
Frazier disputes the accuracy of the statistics based on her claim that both Powell
and Wright-McBryde had asked her to falsify work statistics in the past. During
the meeting, Powell said that he was finding it difficult to work with Frazier and
asked to have Frazier moved to a different team. He also stated that Frazier was a
Schedule A employee on probation.
In August 2012, Frazier declined to complete a work assignment that had
been assigned to her. Frazier did not believe that she was required to complete the
assignment because, at the time, she was helping another group with some work,
and Powell had told her that he would monitor her inbox for new assignments
while she was helping out. At her deposition, Wright-McBryde disagreed with
Frazier’s understanding of Powell’s instructions and explained that the work
assigned to Frazier by her own team should have taken priority over helping
another team.
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In September 2012, Lisa Taylor became Frazier’s acting supervisor while
Wright-McBryde was on maternity leave. Frazier was fired before Wright-
McBryde returned from maternity leave in December 2012.
On October 12, 2012, Powell called Frazier to ask her to be acting team
leader for a particular week. Frazier was concerned because she had not been
officially trained for that role. Frazier then called Lawson to express her belief that
Powell was setting her up to fail. Taylor testified that she found Frazier’s conduct
to be disrespectful because Frazier called Lawton directly about a problem with
Powell rather than notifying Taylor, their acting first-line supervisor.
On October 15, 2012, Frazier met with Powell, Lawton, and Taylor. At the
meeting, Frazier voiced her concerns about the equitability of work assignments
and about Powell’s conduct towards her, including entering her office without
knocking and constantly reminding her that she was a Schedule A employee on
probation. She voiced her belief that Powell was having issues with her disability
and that he had been retaliating against her for going “over his head” to Wright-
McBryde about closing her office door to check her glucose levels. For his part,
Powell told Lawton that he had problems communicating with Frazier.
Lawton instructed Frazier to accept all work assigned to her and further
instructed Powell and Frazier to have one-on-one meetings to talk about work
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issues. Lawton later asserted that she learned during the meeting that Frazier was
not a “team” person.
After the meeting with Frazier, Lawton met separately with Powell and
Taylor. Powell testified that he provided information about Frazier’s behavior to
Lawton in that separate meeting.
On October 22, 2012, Frazier was considered absent without leave because
she did not have a properly submitted leave slip. Frazier testified that she left a
physical request on Powell’s desk before leaving, but the document disappeared,
and that she put notice that she was out of the office on Powell’s calendar. Powell
claimed that he reported Frazier’s absence because he did not receive a leave
request form from her. On or around October 29, 2012, Powell asked Frazier to
stop complaining to Lawton about him.
Lawton testified that she came to the decision to fire Frazier after hearing
about Frazier’s problems at work in October 2012. Lawton stated that there were
repeated instances where Frazier failed to follow instructions from her team leader
and her supervisor, several instances of her being unprofessional in tone, and one
instance of her being absent without leave. Concerning the failure to follow
instructions, Lawton said that she had heard of multiple occasions where Frazier
was assigned work and would return it or assign it to someone else. Lawton did
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not personally know of those events and relied on reports from others in reaching
the decision to fire Frazier.
Lawton told Wright-McBryde, who was still out on maternity leave, that,
after several meetings with Frazier and others, she believed that termination was
appropriate. Lawton asked Wright-McBryde to contact the personnel department
so that it could decide whether it was appropriate to fire Frazier. Wright-McBryde
called the personnel department and provided them with necessary documentation
and paperwork to approve the decision to terminate Frazier. On November 2,
2012, Lawton and Taylor called Frazier into Lawton’s office, where Lawton gave
Frazier a termination letter stating that Frazier was being terminated “based on
[her] continued disrespect for authority and [her] failure to follow instructions.”
Lawton declined to talk about the termination and told Frazier to call the Equal
Employment Opportunity Commission (“EEOC”) if she had any problems. Frazier
contacted the EEOC immediately after her termination.
Following Frazier’s termination, Shaneka Toliver, another CDC employee,
told Frazier that Wright-McBryde had contacted a contracting company to see if it
had work for Frazier. Also, according to Toliver, Wright-McBryde said that
Frazier was fired “due to no fault of her own” and that Powell “ha[d] his hooks in
Ms. Frazier and he was doing all he could to get her fired.”
III.
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In November 2014, Frazier filed a three-count complaint against HHS.
Frazier alleged that HHS, through the CDC, violated the Rehabilitation Act in
three ways: (1) failing to provide a reasonable accommodation for her disability;
(2) firing her in retaliation for requesting an accommodation and for complaining
about harassment by Powell; (3) and firing her because of her disability. After
discovery, HHS moved for summary judgment on all claims.
A magistrate judge issued a comprehensive report and recommendation
(“R&R”) recommending that HHS’s motion for summary judgment be granted.
As to the first claim, the magistrate judge found that Frazier’s requested
accommodation had been granted, not denied. As to the retaliation claim, the
magistrate judge found that Frazier had not established a causal connection
between her termination and her protected activity for purposes of establishing a
prima facie case, and that, even if she had, she had not shown that HHS’s proffered
legitimate reasons for firing her—disrespect for authority and failure to follow
instructions—were pretextual. Finally, as to Frazier’s discriminatory-firing claim,
the magistrate judge found that Frazier had not established pretext for largely the
same reasons she failed to do so on her retaliation claim.
Over Frazier’s objections, the district court adopted the R&R and granted
HHS’s motion for summary judgment. Frazier now appeals
IV.
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Frazier’s claims arise under the Rehabilitation Act. Claims brought under
the Rehabilitation Act are governed by the same standards used in cases under the
Americans with Disabilities Act (“ADA”). Cash v. Smith, 231 F.3d 1301, 1305
(11th Cir. 2000); see 29 U.S.C. § 791(f). Therefore, “[c]ases decided under the
Rehabilitation Act are precedent for cases under the ADA, and vice-versa.” Cash,
231 F.3d at 1305 n.2.
A. Failure to Accommodate
The Rehabilitation Act prohibits federal agency employers from
discriminating against qualified individuals with disabilities. Mullins v. Crowell,
228 F.3d 1305, 1313 (11th Cir. 2000). The plaintiff bears the initial burden of
establishing a prima facie case of disability discrimination, which requires the
plaintiff to establish the following elements: (1) she is disabled; (2) she was a
“qualified individual” at the relevant time, meaning she could perform the essential
functions of the job in question with or without reasonable accommodations; and
(3) she was discriminated against because of her disability. Lucas v. W.W.
Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001); Davis v. Fla. Power & Light
Co., 205 F.3d 1301, 1305 (11th Cir. 2000).
“An employer unlawfully discriminates against a qualified individual with a
disability when the employer fails to provide ‘reasonable accommodations’ for the
disability—unless doing so would impose undue hardship on the employer.”
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Lucas, 257 F.3d at 1255; see 29 U.S.C. § 791(f) (incorporating 42 U.S.C.
§ 12112(b)(5)(A)). “Reasonable” accommodations are ones that allow the
employee to perform the job’s essential functions. Lucas, 257 F.3d at 1255. In
some cases where a disabled employee has requested a reasonable accommodation,
the employer and employee must engage in an “interactive process” to determine
what accommodations may be necessary. See Stewart v. Happy Herman’s
Cheshire Bridge, Inc., 117 F.3d 1278, 1286–87 (11th Cir. 1997); 29 C.F.R.
§ 1630.2(o)(3).
Here, the district court did not err in granting summary judgment in favor of
HHS on Frazier’s failure-to-accommodate claim because, after an initial denial by
her team leader, her supervisor granted the exact accommodation she requested.
Frazier offers no legal support for her contention that HHS can be held liable in
circumstances where it granted the requested accommodation despite an initial
denial. To the extent an employer’s delay in providing an accommodation could
give rise to a claim, Frazier does not contend that she was harmed by the delay in
receiving her accommodation, and the record reflects that the delay was short.
Accordingly, we see no basis to hold HHS liable for failing to accommodate
Frazier’s disability or for failing to engage in the interactive process.
For the first time on appeal, Frazier argues that Powell so interfered with her
reasonable accommodation by continuing to enter her office without knocking
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while she checked her glucose levels, as to constitute a denial of her
accommodation. It is well-settled, however, that we will not consider on appeal an
issue or argument not fairly presented to the district court except in very limited
circumstances. Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 598–99
(11th Cir. 1995) (en banc); Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,
1332 (11th Cir. 2004) (listing five exceptional circumstances where this Court may
permit an issue to be raised for the first time on appeal). Because Frazoer did not
raise this issue before the district court and it does not meet an exception to our
general rule, we decline to address it on appeal.
B. Retaliatory Termination
An employer may not retaliate against an employee for opposing any
employment practice made unlawful by the ADA. 42 U.S.C. § 12203(a); 29
U.S.C. § 791(f) (incorporating the ADA standards into the Rehabilitation Act);
Hosanna-Tabor Evangelical Lutheran Church and Sch. v. EEOC, 565 U.S. 171,
179–80 (2012). We assess ADA retaliation claims, and thus Rehabilitation Act
claims, under the same framework employed for retaliation claims arising under
Title VII. Stewart, 117 F.3d at 1287; see 29 U.S.C. § 791(f).
To state a prima facie case of retaliation, the plaintiff must show that (1) she
engaged in a protected activity; (2) she suffered an adverse employment action;
and (3) the protected activity was causally connected to the adverse employment
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action. Stewart, 117 F.3d at 1287. In general, close temporal proximity between
an employer’s awareness of protected conduct and an adverse employment action
is “sufficient circumstantial evidence to create a genuine issue of material fact of a
causal connection” for purposes of the prima facie case. Hurlbert v. St. Mary’s
Health Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006); Higdon v. Jackson,
393 F.3d 1211, 1220 (11th Cir. 2004).
Once a prima facie case is established, the burden shifts to the employer to
put forth a legitimate reason for its actions, after which the plaintiff may show that
the proffered reason is a pretext for retaliation. Id. Ultimately, the plaintiff must
show that the adverse employment action would not have occurred “but for” the
protected activity. Frazier-White, 818 F.3d at 1258; Trask v. Sec’y, Dep’t of
Veterans Affairs, 822 F.3d 1179, 1194 (11th Cir. 2016) (Title VII retaliation
claim), cert. denied sub nom. Trask v. Shulkin, 137 S. Ct. 1133 (2017).
The district court concluded that Frazier failed to state a prima facie case of
retaliation. The close acknowledged the temporal proximity between Frazier’s
protected conduct at the meeting in October—attributing Powell’s conduct towards
her to retaliatory and discriminatory animus—and her termination a few weeks
later in November, which is ordinarily sufficient to give rise to an inference of
causation. But the court concluded that the inference had been severed by an
“intervening act” of misconduct—Frazier’s absence without leave in late October.
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While that reasoning is sound as a general matter, we are reluctant to adopt it when
evaluating a plaintiff’s prima facie case.
At the prima facie stage, the plaintiff “need only establish that the protected
activity and the adverse action were not wholly unrelated.” Taylor v. Runyon, 175
F.3d 861, 868 (11th Cir. 1999) (internal quotation marks omitted). The plaintiff
need not definitively establish causation. As we’ve said before in another context,
“the prima facie case is designed to include only evidence that is objectively
verifiable and either easily obtainable or within the plaintiff’s possession.” Vessels
v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 769 (11th Cir. 2005) (race discrimination
under Title VII). Purported “intervening acts” are unlikely to be “objectively
verifiable” in that sense.3 Rather, such acts are generally offered by the employer
as the subjective reasons for its later actions. And in most cases, as here, the
plaintiff will argue that the purported intervening act did not occur or that it did not
actually motivate the employer’s adverse decision—in short, that it was pretextual.
As we see it, the reasoning applied by the district court gives rise to two,
equally unsatisfactory, possibilities. First, it may deprive the plaintiff of a
meaningful opportunity to challenge the employer’s reasons for its actions. Cf.
Vessels, 408 F.3d at 769 (“If we were to hold an employer’s subjective evaluations
3
Our decision in Fleming v. Boeing Co., 120 F.3d 242, 248 (11th Cir. 1997), sometimes
cited as the source of the “intervening act” standard, appears to have been based on the plaintiff’s
failure to meet objectively verifiable minimal qualifications, not on any intervening act of
misconduct.
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sufficient to defeat the prima facie case, the court’s inquiry would end, and
plaintiff would be given no opportunity to demonstrate that the subjective
evaluation was pretextual.”). And second, even if the plaintiff is not deprived of
that opportunity, it still runs the risk of requiring a plaintiff to prove pretext as part
of her prima facie case. Id. (“[W]e cannot reconcile a rule that would essentially
require a plaintiff to prove pretext as part of his prima facie case at the summary
judgment stage with the Supreme Court’s instruction that the plaintiff’s prima facie
burden is not onerous.”); cf. (Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253,
1265 (11th Cir. 2010) (issues that are “bound up in the inquiry into whether [the
employer’s] proffered reason . . . was a pretext for discrimination” should be
considered “at the pretext stage of the analysis”). Neither possibility is consistent
with the general burden-shifting framework we employ in these cases.
Accordingly, we do not evaluate the purported intervening act of misconduct
as part of Frazier’s prima facie case, and we assume that she established a prima
facie case of retaliation through close temporal proximity. Even assuming the
district court erred in this regard, however, the court went on to conclude that
Frazier failed to establish that HHS’s proffered reasons for her termination—
disrespect for authority and failure to follow instructions—were false or that
unlawful retaliation was the true reason for her termination. For the reasons
explained below, we agree with that determination.
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Once an employer proffers legitimate reasons for its actions, the plaintiff
may demonstrate pretext by showing either that an unlawful reason more likely
motivated the employer or that the proffered reason for the decision is not worthy
of belief. See Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). In
most cases, a plaintiff can create a triable issue with proof that the employer’s
explanation is unworthy of credence because “the trier of fact can reasonably infer
from the falsity of the explanation that the employer is dissembling to cover up [an
unlawful] purpose.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
147–48 (2000). But judgment as a matter of law would still be appropriate “if the
plaintiff created only a weak issue of fact as to whether the employer’s reason was
untrue and there was abundant and uncontroverted independent evidence that no
discrimination [or retaliation] had occurred.” Id. at 148.
“When a plaintiff chooses to attack the veracity of the employer’s proffered
reason, ‘[the] inquiry is limited to whether the employer gave an honest
explanation of its behavior.’” Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304,
1310–11 (11th Cir. 2012) (quoting Elrod v. Sears, Roebuck & Co., 939 F.2d 1466,
1470 (11th Cir. 1991)); see also Alvarez, 610 F.3d at 1266. Provided that the
proffered reason is one that might motivate a reasonable employer, the plaintiff
“must meet [the] reason head on and rebut it, and the employee cannot succeed by
simply quarreling with the wisdom of that reason.” Chapman v. AI Transp., 229
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F.3d 1012, 1030 (11th Cir. 2000) (en banc). That means that the plaintiff “must
demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could find them unworthy of credence.” Alvarez, 610 F.3d at
1265 (internal quotation marks omitted). “[I]t is not our role to second-guess the
wisdom of an employer’s business decision—indeed the wisdom of them is
irrelevant—as long as those decisions were not made with a discriminatory [or
retaliatory] motive.” Id. at 1266. That a plaintiff’s evidence suggests that an
employment decision was unwise or unfair or inaccurate does not alone suggest
that it was discriminatory or retaliatory. See id. at 1266–67.
Here, HHS explained, with supporting evidence, that it discharged Frazier
because of instances of disrespect for authority and failure to follow instructions.
Frazier contends that a reasonable jury could conclude that the “vague instances”
of her not following instructions were made up or exaggerated and that “the
purported instances of disrespect were false.” But even if Frazier established that
the instances themselves were false or exaggerated, that alone would be
insufficient to show pretext “without calling into question [the decision maker’s]
sincere belief that they occurred.” See Vessels, 408 F.3d at 771. Frazier presents
no evidence to show that Lawton, who was the ultimate decision maker, was not
informed by her subordinates about these instances or that Lawton did not
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sincerely believe the information she received. Whether an employee actually
engaged in the misconduct that was reported to the decision maker is irrelevant to
the issue of whether the decision maker believed that the employee had done
wrong. See Elrod, 939 F.2d at 1470.
Frazier’s focus on Powell is misguided because it is undisputed that he was
not a decision maker, and Frazier has not argued a “cat’s paw” theory of liability
either below or on appeal. See Sims v. MVM, Inc., 704 F.3d 1327, 1334–35 n.6
(11th Cir. 2013) (“‘Cat’s paw’ theory of liability, also referred to as ‘subordinate
bias theory,’ is liability seeking to hold an employer liable for the animus of a
supervisor who was not charged with making the ultimate employment decision.”).
In fact, the magistrate judge specifically declined to engage in a cat’s paw liability
analysis, noting that “Frazier has not argued that Defendant is liable under a ‘cat’s
paw’ theory.” Magistrate Judge’s R&R (Doc. 26) at 29 n.21. Because Frazier
neither objected to that finding nor properly raised the issue on appeal, see 11th
Cir. R. 3-1 (2015) (failure to object to factual and legal conclusions in an R&R
generally waives the right to challenge those conclusions on appeal); Sapuppo v.
Allstate Floridian Ins. Co., 739 F.3d 678, 680–82 (11th Cir. 2014) (issues not
plainly raised on appeal are abandoned), Frazier cannot impute Powell’s alleged
animus to others for purposes of proving her claim.
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Frazier next contends that she can show pretext because her supervisors’
testimony about whether they knew of her diabetes differs from her own testimony.
In Frazier’s view, a reasonable jury could conclude from this conflicting testimony
that Lawton and McBryde were being untruthful about not only their knowledge of
her diabetes, but also their explanation of the reasons for her termination. We
disagree.
Whether her supervisors knew of her diabetes has little to do with whether
HHS’s proffered reasons for her termination are worthy of credence. See
Chapman, 229 F.3d at 1030. Neither Lawton nor Wright-McBryde based the
reasons for their actions on the premise that they did not know of Frazier’s
disability. So Frazier’s contradictory testimony does not meet the proffered
reasons “head on and rebut [them].” See id. Plus, both Lawton and Wright-
McBryde stated that were aware that Frazier was a Schedule A employee with a
disability, so it is purely speculative to say that they hid their knowledge of her
specific disability in a way that is suggestive of pretext.
Frazier next contends that pretext is shown by HHS’s shifting explanations
as to who made the decision to terminate Frazier. She cites Lawton’s testimony
that it was a “joint decision” between Lawton and Wright-McBryde, which, in her
view, contradicts Wright-McBryde’s testimony that Lawton alone made the
decision. But there is no inconsistency between the specific facts of Lawton’s and
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Wright-McBryde’s accounts that is suggestive of pretext. While Lawton at first
characterized the decision to fire Frazier as a “joint decision” with Wright-
McBryde, Lawton went on to explain that she made the decision to fire Frazier
after hearing about Frazier’s problems with rejecting work assignments and being
absent without leave. She then asked Wright-McBryde to contact the personnel
department so that the personnel department could decide whether it was
appropriate to fire Frazier. Wright-McBryde provided a similar account,
explaining that she did the “logistical leg work” for the termination after Lawton
concluded that termination was appropriate. No reasonable jury could conclude
from this evidence that either Lawton or Wright-McBryde was being untruthful
about the reasons for terminating Frazier’s employment.
Based on this same evidence, Frazier argues that, if it was a joint decision,
Wright-McBryde’s post-termination comments to Toliver, another CDC employee,
show that the proffered reasons are pretextual. In particular, Frazier presented
evidence that, after her termination, Wright-McBryde told Toliver that Frazier was
fired “due to no fault of her own.” Wright-McBryde also tried to help Frazier
obtain new employment. Frazier compares this situation to that in Kragor, where
we vacated the grant of summary judgment to an employer based on post-
termination comments from the final decision maker which directly contradicted
the employer’s proffered reasons for the employment action.
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In Kragor, the final decision maker made comments that the plaintiff, who
had been fired for allegedly violating or appearing to violate the company’s
conduct policies, “was an exceptional employee, that she had done nothing wrong,
that she had done everything right, and further indicated that she should not have
been fired.” 702 F.3d at 1310. We held that this evidence was sufficient to show
pretext and to survive summary judgment. See id. at 1311 (“When the employer’s
actual decisionmaker, after terminating an employee for misconduct (or the
appearance of misconduct), says without qualification that the employee is
exceptional, did nothing wrong, did everything right, and should not have been
fired, that contradiction—when combined with a prima facie case—is enough to
create a jury question on the ultimate issue of discrimination.”).
Frazier’s reliance on Kragor is unavailing for two reasons. First, Wright-
McBryde’s comments to Toliver do not directly contradict HHS’s proffered
reasons for Frazier’s termination, as in Kragor. In the light most favorable to
Frazier, Wright-McBryde’s comments indicate that she believed Frazier’s
termination was an unfair consequence of her conflict with Powell. Specifically,
according to Toliver, Wright-McBryde believed that Powell “ha[d] his hooks in
Ms. Frazier and he was doing all he could to get her fired.” But the comments do
not reasonably reflect a belief that Frazier followed instructions and behaved
appropriately at work during the weeks leading to her termination. Indeed,
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Wright-McBryde was not present at work during those weeks to make such an
observation because she was on maternity leave.
Second, the evidence reflects that Lawton, not Wright-McBryde, was the
final decision maker. In the light most favorable to Frazier, Wright-McBryde
informed the decision to terminate Frazier’s employment and helped prepare and
submit the supporting documentation, but it was Lawton who decided that it was
appropriate to seek Frazier’s termination. And, significantly, Lawton made that
decision while Wright-McBryde was out of the office on maternity leave. Wright-
McBryde was not privy to the meeting among Frazier, Taylor, Powell, and Lawton
in mid-October, or to the meeting thereafter among Taylor, Powell, and Lawton.
She also was not present at work when Powell reported to Lawton that Frazier had
been absent without leave. As a result, Wright-McBryde’s post-termination
comments do not contradict Lawton’s testimony about the events that led her to
conclude that it was appropriate to seek Frazier’s termination. Nor is there is any
evidence that Wright-McBryde ever communicated to Lawton her belief that
Powell was doing all he could to get Frazier fired. For these two reasons, Wright-
McBryde’s comments after Frazier’s termination do not provide sufficient
evidence for a reasonable jury to conclude that HHS’s reasons are unworthy of
credence.
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Nor do we see anything else in the record that would permit a reasonable
factfinder to conclude that Frazier’s protected activity was the but-for cause of her
termination. Despite the close temporal proximity between her protected conduct
and her termination, HHS’s evidence—including evidence that Lawton was
informed that Frazier had been absent without leave and that based on her
interactions with Frazier, Lawton had concluded that Frazier was not a team
person—negated any strong inference of causation that could be drawn from
temporal proximity alone. In addition, Frazier’s evidence of good job performance
does not show pretext because she was not fired for poor job performance, and her
evidence predates the events and issues on which her termination decision was
based. For this reason, this evidence does not meet HHS’s reasons head on and
rebut them. See Chapman, 229 F.3d at 1030.
Because Frazier has not “demonstrate[d] such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons for its action that a reasonable factfinder could find them
unworthy of credence,” Alvarez, 610 F.3d at 1265 (internal quotation marks
omitted), we affirm the district court’s grant of summary judgment on Frazier’s
retaliation claim.
C. Discriminatory Termination
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Frazier also maintains that she has established that HHS’s proffered reasons
are a pretext for disability discrimination. Besides temporal proximity, her pretext
arguments are the same as those presented in support of her retaliation claim. So
for the same reasons we have already discussed with regard to her retaliation
claim, we find her pretext arguments similarly unpersuasive with regard to her
discrimination claim. Frazier has not presented sufficient circumstantial evidence
from which a reasonable jury could conclude that HHS’s proffered reasons for her
termination were pretext for disability discrimination. Accordingly, the district
court properly granted summary judgment on this claim.
V.
For the reasons stated, the district court did not err in granting summary
judgment in favor of HHS.
AFFIRMED.
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