USCA11 Case: 20-11596 Date Filed: 01/20/2021 Page: 1 of 14
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 20-11596
Non-Argument Calendar
________________________
D.C. Docket No. 1:18-cv-03672-TWT
MELVIN PERRY,
Plaintiff-Appellant,
versus
PEDIATRIX MEDICAL GROUP OF GEORGIA,
MEDNAX SERVICES,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(January 20, 2021)
Before MARTIN, BRANCH, and LUCK, Circuit Judges.
PER CURIAM:
USCA11 Case: 20-11596 Date Filed: 01/20/2021 Page: 2 of 14
Dr. Melvin Perry appeals the district court’s grant of summary judgment for
Pediatrix Medical Group of Georgia and Mednax Services on Dr. Perry’s claims for
race discrimination and retaliation. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Dr. Perry, an African-American male, specializes in pediatric critical care. In
2013, he was hired as a temporary pediatric critical care doctor by Pokroy Medical
Group of Nevada, Ltd. Pokroy Medical is an affiliate of Pediatrix, a third-party
medical provider of specialty services—like pediatric critical care—for hospitals
and other health care facilities. Pediatrix is part of Mednax.
Pokroy Medical assigned Dr. Perry to work at a hospital in Nevada. While he
was working in Nevada, Dr. Perry had a confrontation with a pregnant white
pharmacist employed by the hospital. The pharmacist changed the medication
regimen for one of Dr. Perry’s patients without consulting him, and Dr. Perry
confronted her about it. Dr. Perry and the pharmacist raised their voices at one
another within earshot of a nearby patient area. After the incident, the pharmacist
told another employee that she was afraid of Dr. Perry because he was a “big black
guy.”
When Dr. Perry learned of the pharmacist’s comment, he filed a race
discrimination complaint with the Nevada Board of Pharmacy. Dr. Perry did not tell
anyone at Pokroy Medical about the incident or the complaint. Two weeks later,
2
USCA11 Case: 20-11596 Date Filed: 01/20/2021 Page: 3 of 14
Pokroy Medical terminated Dr. Perry’s contract, explaining that there had been an
“issue” and that his services would no longer be required. Pediatrix’s records
indicated that Dr. Perry was “asked to leave [his] assignment after [one] shift due to
[a] bad patient outcome.”
After he was terminated by Pokroy Medical, Dr. Perry worked from July 2014
to January 2015 as a medical director for the National AIDS and Education Services
for Minorities Clinic (NAESM), a medical nonprofit primarily made up of African-
American service providers that served primarily African-American patients.
On July 4, 2017, Dr. Perry emailed a copy of his resume to Kathleen
Schlemmer, a Mednax recruiter, expressing his interest in one of four open pediatric
intensivist positions at Scottish Rite Hospital in Atlanta, Georgia. Schlemmer
responded that Dr. Perry should formally apply through Mednax’s website. An hour
later, before Dr. Perry had submitted his formal application, Schlemmer emailed
Dr. Perry that he would not receive an interview. Dr. Perry asked Schlemmer if
Mednax had already filled the positions and whether she could provide any
additional information as to why he wasn’t being considered. Schlemmer explained
that “[Mednax] ha[d] a few solid candidates that they [were] considering.” Mednax
ultimately hired two white females, an African-American female, and a Pakistani
female for the Scottish Rite positions.
3
USCA11 Case: 20-11596 Date Filed: 01/20/2021 Page: 4 of 14
Dr. Perry sued Pediatrix and Mednax for (1) race discrimination because they
didn’t hire him for one of the Scottish Rite Hospital pediatric intensivist positions
and (2) retaliation based on the decision not to hire him because he complained about
race discrimination in 2013.
Mednax and Pediatrix moved for summary judgment. They argued that
Dr. Perry had not shown a genuine issue of material fact as to his race discrimination
claim because Schlemmer, who decided not to hire Dr. Perry, did not know he was
African-American. Mednax and Pediatrix also argued that Dr. Perry had not shown
a genuine issue of material fact that their reasons for not hiring him—Dr. Perry’s
termination by Pokroy Medical and his prior history of workplace confrontations
with the staff at the Nevada hospital—were illegitimate or pretextual.
As to Dr. Perry’s retaliation claim, Mednax and Pediatrix argued that Dr.
Perry had not shown a genuine issue of material fact that Dr. Perry’s 2013 race
discrimination complaint against the pharmacist at the Nevada hospital was the
cause of the decision not to hire him because there was no evidence that Schlemmer
(the decisionmaker) knew about Dr. Perry’s complaint. Mednax and Pediatrix also
argued that Dr. Perry could not show that the 2013 race discrimination complaint
caused Schlemmer not to hire him because the four-year gap between the filing of
the complaint and the hiring decision showed they were unrelated.
4
USCA11 Case: 20-11596 Date Filed: 01/20/2021 Page: 5 of 14
Dr. Perry responded that there was a genuine issue of material fact that
Schlemmer knew he was African-American because: (1) he previously worked for
Pediatrix; (2) he believed that a female Pediatrix/Mednax recruiter he met in 2013
may have been Schlemmer; and (3) his resume included a reference to NAESM. As
to the retaliation claim, Dr. Perry responded that Schlemmer was aware of his work
history with Pediatrix and therefore would have been aware of the complaint he had
filed with the Nevada Board of Pharmacy. He also argued that because Schlemmer
never affirmatively said she was unaware of the complaint, there was a factual
question for the jury to resolve.
The magistrate judge recommended summary judgment for Pediatrix and
Mednax on both of Dr. Perry’s claims. As to the failure-to-hire race discrimination
claim, the magistrate judge concluded that the “record support[ed] Defendant’s
contention that Schlemmer had no information about [Dr. Perry’s] race or access to
information about Dr. Perry’s race when she was recruiting for the Scottish Rite
position in 2017.” Neither Dr. Perry’s application nor the defendants’ internal
system, the magistrate judge said, included any reference to Dr. Perry’s race. The
magistrate judge explained that Dr. Perry’s testimony about possibly meeting
Schlemmer didn’t support an inference that Schlemmer knew he was African-
American because his testimony about meeting “a female recruiter whose name he
cannot remember, at a conference the location of which he cannot recall” was
5
USCA11 Case: 20-11596 Date Filed: 01/20/2021 Page: 6 of 14
“nothing more than ‘mere conclusions and factual allegations unsupported by
evidence.”’ Likewise, the magistrate judge concluded that the reference to NAESM
on Dr. Perry’s resume was insufficient to support an inference that Schlemmer knew
he was African-American because NAESM employed doctors and served patients
of all races and “[Dr. Perry] testified that he never had a discussion with Schlemmer
about NAESM or his role with that organization, and [he] concede[d] there [was]
nothing else on his [resume] that indicate[d] or could indicate that he [was] African-
American.”
As to Dr. Perry’s retaliation claim, the magistrate judge concluded that he
failed to establish his 2013 race discrimination complaint against the hospital
pharmacist was the cause of the 2017 hiring decision because there was “no evidence
that Schlemmer was aware of [Dr. Perry’s] protected conduct when she rejected [Dr.
Perry’s resume].” The magistrate judge also concluded that Dr. Perry had failed to
show that his 2013 race discrimination complaint was a but-for cause of his non-
selection because it was temporally unrelated to the 2017 hiring decision.
The district court adopted the magistrate judge’s recommendation and granted
summary judgment for Pediatrix and Mednax because “[Dr. Perry] produced no
evidence that the decision-maker knew of [Dr. Perry]’s race and no evidence of a
causal connection between the failure to hire and a prior complaint of
discrimination.”
6
USCA11 Case: 20-11596 Date Filed: 01/20/2021 Page: 7 of 14
STANDARD OF REVIEW
“We review de novo a district court’s grant of summary judgment, applying
the same legal standards as the district court.” Alvarez v. Royal Atl. Dev., Inc.,
610
F.3d 1253, 1263 (11th Cir. 2010). “We will affirm if, after construing the evidence
in the light most favorable to the non-moving party, we find that no genuine issue of
material fact exists and the moving party is entitled to judgment as a matter of law.”
Id. at 1263–64. “[T]he moving party has the burden of demonstrating that there are
no genuine issues of material fact, but once that burden is met the burden shifts to
the nonmoving party to bring the court’s attention to evidence demonstrating a
genuine issue for trial.” Paylor v. Hartford Fire Ins. Co.,
748 F.3d 1117, 1121–22
(11th Cir. 2014). “Overcoming that burden requires more than speculation or a mere
scintilla of evidence.”
Id.
DISCUSSION
Dr. Perry argues that the district court erred as to his failure-to-hire race
discrimination claim because the evidence established a genuine issue of material
fact that Schlemmer (the decisionmaker) knew he was African-American when she
decided not to hire him. And Dr. Perry argues that the district court erred as to his
retaliation claim because there was a genuine issue of material fact that his 2013 race
discrimination complaint against the hospital pharmacist caused Schlemmer not to
hire him.
7
USCA11 Case: 20-11596 Date Filed: 01/20/2021 Page: 8 of 14
Dr. Perry’s Race Discrimination Claim
Dr. Perry argues that three facts create a genuine issue of material fact as to
whether Schlemmer (the decisionmaker) knew he was African-American: (1) Dr.
Perry previously worked for Pediatrix; (2) Dr. Perry’s resume showed he was
associated with NAESM; and (3) Dr. Perry believed he met Schlemmer in 2013.
As a matter of federal law, employers are prohibited from refusing to hire an
applicant “because of” his race. See 42 U.S.C. § 2000e-2(a)(1) (“It shall be an
unlawful employment practice for an employer . . . to fail or refuse to hire or to
discharge any individual . . . because of such individual’s race, color, religion, sex,
or national origin.”); 42 U.S.C § 1981 (“All persons within the jurisdiction of the
United States shall have the same right in every State and Territory to make and
enforce contracts . . . as is enjoyed by white citizens . . . .”). Failure-to-hire race
discrimination claims that rely on circumstantial evidence, like Dr. Perry’s, are
evaluated under the McDonnell Douglas Corporation v. Green,
411 U.S. 792 (1973)
burden-shifting framework. Trask v. Sec’y, Dep’t of Veterans Affairs,
822 F.3d
1179, 1191 (11th Cir. 2016).
Under the failure-to-hire McDonnell Douglas framework, Dr. Perry had to
show that: “(1) he [was] a member of a protected class; (2) he applied for and was
qualified for a job for which the employer was seeking applicants; (3) despite his
qualifications, he was rejected for employment; and (4) after the rejection, the
8
USCA11 Case: 20-11596 Date Filed: 01/20/2021 Page: 9 of 14
employer continued to seek applicants with [his] qualifications outside of [his]
particular protected class.” Lubetsky v. Applied Card Sys., Inc.,
296 F.3d 1301,
1305 (11th Cir. 2002). Critically, Dr. Perry also had to show that the decisionmaker
knew he was a member of a protected class. See Walker v. Prudential Prop. and
Cas. Ins. Co.,
286 F.3d 1270, 1274 (11th Cir. 2002) (“Discrimination is about actual
knowledge, and real intent, not constructive knowledge and assumed intent. When
evaluating a charge of employment discrimination, then, we must focus on the actual
knowledge and actions of the decision-maker.”); see also Lubetsky, 296 F.3d at 1306
(“[A]n employer cannot intentionally discriminate against an individual based on his
religion unless the employer knows the individual’s religion.”); Cordoba v.
Dillard’s, Inc.,
419 F.3d 1169, 1181 (11th Cir. 2005) (“[S]ummary judgment was
appropriate because there was no evidence that the decision-maker was aware of the
plaintiff’s disability when he made the decision to fire him.”).
Dr. Perry first argues that Schlemmer knew he was African-American because
he previously worked for Pediatrix’s Nevada affiliate, Pokroy Medical. But
Schlemmer testified that she was “[a]bsolutely not” aware of Dr. Perry’s race at the
time he applied for the position at Scottish Rite. Dr. Perry’s resume didn’t reference
his race, and Pediatrix and Mednax’s internal records and pre-screening forms that
Schlemmer had access to during the hiring process didn’t include any information
about his race. Pediatrix’s records stated only that Dr. Perry’s previous position was
9
USCA11 Case: 20-11596 Date Filed: 01/20/2021 Page: 10 of 14
temporary and that he was “asked to leave [his] assignment after [one] shift due to
[a] bad patient outcome.”
Dr. Perry next argues that Schlemmer knew his race because he was a
“member” of NAESM from 2014 to 2015. But Dr. Perry’s resume said that he was
a “Medical Director,” not a member. And when Dr. Perry was asked whether “all
of the doctors or all of the care providers [at NAESM] are minorities,” Dr. Perry
testified that “[t]hey can be anyone . . . .” Dr. Perry also testified that he never had
a conversation with Schlemmer about NAESM. Because NAESM’s doctors were
not exclusively African-American, and there is no evidence that Schlemmer was
familiar with NAESM, Dr. Perry’s resume does not support an inference that
Schlemmer knew Dr. Perry was African-American.
Dr. Perry finally argues that Schlemmer knew he was African-American
because they met in 2013. But Dr. Perry testified that he met a “lady” recruiter at a
conference, he “could not remember her name,” and he “wonder[ed] if [Schlemmer
was] the person. . . . But it may just be because [he] interacted with her so much with
all this that her name just seem[ed] to ring.” When asked whether “he kn[e]w for
sure whether Ms. Schlemmer did or did not know what [his] race was back in 2017,”
Dr. Perry testified “No. Not with certainty, no.” Dr. Perry’s “speculation” that he
met Schlemmer was insufficient to create a genuine issue of material fact. See
Hartford Fire, 748 F.3d at 1121–22; Cordoba,
419 F.3d at 1181.
10
USCA11 Case: 20-11596 Date Filed: 01/20/2021 Page: 11 of 14
Because Dr. Perry’s three facts are insufficient to create a genuine issue of
material fact that Schlemmer knew Dr. Perry’s race, the district court properly
granted summary judgment for Pediatrix and Mednax as to his race discrimination
claim.
Dr. Perry’s Retaliation Claim
The district court granted summary judgment for Pediatrix and Mednax as to
Dr. Perry’s retaliation claim because Dr. Perry’s 2013 race discrimination complaint
against the hospital pharmacist did not cause Schlemmer’s 2017 hiring decision.
The district court concluded that (1) there was no genuine dispute that Schlemmer
didn’t know about the 2013 race discrimination complaint, and (2) the complaint
was unrelated to the 2017 hiring decision. Dr. Perry argues that the district court
erred because Schlemmer knew about the complaint since she knew about
Dr. Perry’s previous employment for Pediatrix’s Nevada affiliate.
Employers may not refuse to hire an applicant in retaliation for complaining
about race discrimination in the workplace. See 42 U.S.C. § 2000e-3(a) (“It shall be
an unlawful employment practice for an employer to discriminate against any of his
employees or applicants for employment . . . because he has opposed any practice
made an unlawful employment practice by [Title VII] . . . .”); Gogel v. Kia Motors
Mfg. of Ga., Inc.,
967 F.3d 1121, 1134 (11th Cir. 2020) (en banc) (concluding that
retaliation claims are cognizable under section 1981). Retaliation claims based on
11
USCA11 Case: 20-11596 Date Filed: 01/20/2021 Page: 12 of 14
circumstantial evidence are also analyzed under the McDonnell Douglas framework.
Gogel, 967 F.3d at 1134.
To establish a prima facie case of retaliation under the McDonnell Douglas
framework, the plaintiff must show that: (1) he engaged in statutorily protected
activity; (2) he suffered a materially adverse employment action; and (3) there was
some causal connection between the two events. Id. at 1134–35. To demonstrate a
causal connection, the plaintiff must show that: (1) the decisionmaker knew of his
protected activity, and (2) the protected activity and adverse action were not wholly
unrelated. Shannon v. Bellsouth Telecomms., Inc.,
292 F.3d 712, 716 (11th Cir.
2002).
A plaintiff satisfies the first causation element by presenting summary
judgment evidence that the decisionmaker was aware of the plaintiff’s formal
complaint before the adverse employment action. See, e.g., Farley v. Nationwide
Mut. Ins. Co.,
197 F.3d 1322, 1337 (11th Cir. 1999) (concluding that there was a
causal connection where the decisionmakers were aware of the plaintiff’s EEOC
claim shortly after its filing and fired him seven weeks later); Clover v. Total Sys.
Servs., Inc.,
176 F.3d 1346, 1354–56 (11th Cir. 1999) (concluding that there was no
causal connection where there was no evidence that the decisionmaker was aware of
the plaintiff’s participation in the investigation of a sexual harassment claim against
another employee). And a plaintiff may satisfy the second causation element by
12
USCA11 Case: 20-11596 Date Filed: 01/20/2021 Page: 13 of 14
showing that the filing of the formal complaint and the adverse employment action
were in “close temporal proximity.” Shannon,
292 F.3d at 716.
Dr. Perry presented no summary judgment evidence that Schlemmer knew
about Dr. Perry’s 2013 race discrimination complaint when she made the 2017
hiring decision. Dr. Perry testified that he never told Mednax, Pediatrix, or
Pediatrix’s Nevada affiliate about the complaint. The complaint stemmed from a
confrontation with a pharmacist employed by a third-party hospital, not by the
defendants, and it was filed with the Nevada Board of Pharmacy, not Dr. Perry’s
employer. Nothing ever came of it. Nothing in Pediatrix or Mednax’s records
suggests the hospital or the Nevada Board of Pharmacy brought it to his employer’s
attention. Even if Schlemmer was familiar with Dr. Perry’s work history, nothing
in that history showed she would have been aware of his 2013 race discrimination
complaint. Pediatrix and Mednax’s records, which are what Schlemmer had when
she made the hiring decision, say only that Dr. Perry was terminated because of a
“bad patient outcome.” They say nothing about the 2013 confrontation with the
hospital pharmacist.
As to the second causation element, the four-year gap between the filing of
the 2013 discrimination complaint and the 2017 hiring decision showed that they
were unrelated. “The cases that accept mere temporal proximity between an
employer’s knowledge of protected activity and an adverse employment action as
13
USCA11 Case: 20-11596 Date Filed: 01/20/2021 Page: 14 of 14
sufficient evidence of causality to establish a prima facie case uniformly hold that
the temporal proximity must be ‘very close.’” Clark Cnty. Sch. Dist. v. Breeden,
532 U.S. 268, 273–74 (2001) (collecting cases and holding that a twenty-month gap
was too long). We’ve held that time gaps significantly shorter than four years were
insufficient to establish a “close temporal connection.” See, e.g., Webb-Edwards v.
Orange Cnty. Sheriff’s Officers,
525 F.3d 1013, 1029 (11th Cir. 2008) (six-month
gap too long); Higdon v. Jackson,
393 F.3d 1211, 1221 (11th Cir. 2004) (three-
month gap too long).
Because there was no evidence that Schlemmer was aware of Dr. Perry’s 2013
race discrimination complaint before the 2017 hiring decision, and because he failed
to show that the complaint and the hiring decision were related, the district court did
not err by granting summary judgment for Pediatrix and Mednax on his retaliation
claim.
AFFIRMED.
14
