Floyd-Gimon v. University of Arkansas for Medical Sciences Ex Rel. Board of Trustees of the University of Arkansas , 716 F.3d 1141 ( 2013 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 12-1797
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Donna Floyd-Gimon
lllllllllllllllllllll Plaintiff - Appellant
v.
University of Arkansas for Medical Sciences, by and through The Board of
Trustees of The University of Arkansas; John Ed Anthony, in his official capacity
as a member of the Board of Trustees of the University of Arkansas; Carl Johnson,
in his official capacity as a member of the Board of Trustees of the University of
Arkansas; Jane Rogers, in her official capacity as a member of the Board of
Trustees of the University of Arkansas; Sam Hilburn, in his official capacity as a
member of the Board of Trustees of the University of Arkansas; Mike Akin, in his
official capacity as a member of the Board of Trustees of the University of
Arkansas; Jim Von Gremp, in his official capacity as a member of the Board of
Trustees of the University of Arkansas; John Tyson, in his official capacity as a
member of the Board of Trustees of the University of Arkansas; Ben Hyneman, in
his official capacity as a member of the Board of Trustees of the University of
Arkansas; David Pryor, in his official capacity as a member of the Board of
Trustees of the University of Arkansas; Mark Waldrip, in his official capacity as a
member of the Board of Trustees of the University of Arkansas; Mary Helen
Forest, in her personal capacity; Charles White, in his personal capacity; R.T.
Fendley, in his personal capacity; Richard Pierson, in his official and personal capacity
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Submitted: January 16, 2013
Filed: June 18, 2013
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Before RILEY, Chief Judge, WOLLMAN and GRUENDER, Circuit Judges.
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RILEY, Chief Judge.
On May 9, 2008, the University of Arkansas for Medical Sciences (UAMS)
terminated Donna Floyd-Gimon’s employment based on gross misconduct. Floyd-
Gimon sued UAMS, through its Board of Trustees; the trustees in their official
capacity; Mary Helen Forrest, Charles White, and R.T. Fendley, each in their personal
capacity; and Richard Pierson, in his official and personal capacities (collectively,
defendants) under 42 U.S.C. § 1983, alleging, as relevant here, due process violations
and gender discrimination in violation of Floyd-Gimon’s equal protection rights.1
Floyd-Gimon appeals from the district court’s2 adverse grant of summary judgment.
Having appellate jurisdiction under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Facts
Floyd-Gimon was one of two liver transplant coordinators at UAMS. Her
immediate supervisors were Sue Weeks and Ann Butts. Floyd-Gimon’s duties
included monitoring and maintaining patients’ records and entering their health
information into the United Network for Organ Sharing (UNOS) database. Failing
to enter lab results properly could adversely affect patients’ eligibility for a transplant.
1
Floyd-Gimon also brought state law claims that are not at issue in this appeal.
2
The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
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While auditing UAMS’s liver transplant program in 2007 and 2008, UNOS
more than once requested documentation of data entries, including several entries
made by Floyd-Gimon. Floyd-Gimon and Sue Belcher, the other liver transplant
coordinator, agreed Belcher would compile the source documents for UAMS’s audit
response.
On April 18, 2008, Weeks called Floyd-Gimon to inform her UNOS had
questions about the audit, and Weeks asked Floyd-Gimon “about specific lab results
and other documents for certain patients.” The same day, Weeks copied Floyd-
Gimon on an email in which Weeks asked Belcher to find certain patient records
missing from the audit response. On April 19, 2008, Butts included Floyd-Gimon on
a second email sent to Belcher, discussing the missing records for several of the
patients mentioned in Weeks’ email. In total, Weeks’ and Butts’ emails mentioned
nine or ten patients by name.
Weeks and Butts reviewed the audit response, which Belcher gave Weeks on
April 24, 2008. Weeks reported her investigation of a suspicious-looking record in
the audit response led to the discovery of physically “cut and pasted” records in shred
bins. Several of the altered records concerned two of Floyd-Gimon’s patients. Butts
told her supervisor, Fendley, of the alterations, and Weeks told Forrest, who, as
UAMS’s Chief Nursing Officer (CNO), “is responsible for overseeing nursing
practice quality at UAMS Medical Center and compliance with [Arkansas State
Board of Nursing (ASBN)] rules and regulations.”
On April 25, 2008, Floyd-Gimon, with Belcher, met with Fendley, Butts, and
Weeks and was told “discrepancies in the records and . . . some actual alterations of
records were found,” including some records that had been “cut and pasted.” Floyd-
Gimon denied involvement. She was placed on administrative leave the same day.
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Jane Hohn and Paula Alonso, compliance officers for UAMS, began
investigating who altered the records. At a meeting on April 29, 2008, “Hohn and
Alonso asked [Floyd-Gimon] about manipulation of documents, if she was involved
in the audit, who worked on it, who had access to her area, and who might have been
there.” They also asked Floyd-Gimon whether she had falsified or altered documents,
about “the system [Floyd-Gimon] used for documents,” and “the policy for keeping
source documents.” Floyd-Gimon denied altering or falsifying records, but stated she
“might have” “pull[ed] up a lab report for” Belcher, if Belcher had asked. Floyd-
Gimon claims she repeatedly asked to see the allegedly altered documents, but was
not permitted to do so at any point in the investigation.
Hohn and Alonso prepared a compliance report, summarizing some of the
problems revealed by their investigation. The report detailed instances of
inaccurately reported information (including “cut and pasted” records) and
“unsupported/undocumented information reported to UNOS.” Some of the altered
records Hohn and Alonso identified related to four patients mentioned in Weeks’
April 18, 2008 email. Butts also mentioned one of these patients in her April 19,
2008 email.
Floyd-Gimon met with Fendley, Butts, and Dr. Nick Lang on May 9, 2008. At
this meeting, Floyd-Gimon “was informed that UAMS determined she had altered
medical records for the response to the April 18 audit request.” UAMS officially
terminated Floyd-Gimon at the end of the meeting. Fendley’s supervisor, Richard
Pierson, approved the termination decision. Floyd-Gimon received a termination
letter stating she was being terminated for gross misconduct, specifically because of
“multiple instances” of Floyd-Gimon both “entering incorrect data into the [UNOS]
data base” and altering patient records.3 Floyd-Gimon signed the termination letter,
3
The UAMS employee handbook provides employment with UAMS is at-will
and “gross misconduct” will lead to “[i]mmediate dismissal.”
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checking a box that indicated she had read, but disagreed with, the explanation of her
termination.
On May 16, 2008, Floyd-Gimon filed a grievance with Charles White, the
UAMS Assistant Vice Chancellor for Employee Relations, complaining she “was
never given the specific details surrounding [her] termination, nor allowed to respond
to the allegations[, and] even the ‘general’ statements made to [her] do not constitute
‘gross misconduct’ as defined in UAMS policies.” Floyd-Gimon asked to review the
allegedly altered documents, learn “of the specific conduct” of which she was
accused, and “be given an opportunity to respond to these allegations to some review
panel to determine what discipline, if any, is appropriate.” She also said she
“[u]ltimately . . . would like to be reinstated, with back pay.”
UAMS’s grievance procedure provides that the “Chancellor (or his/her
designee) . . . may elect to refer the matter to a grievance committee” composed of
three UAMS staff members, to review the facts and make a recommendation. The
record does not indicate whether such committees may or must conduct any sort of
hearing. White, who was not involved in the termination decision, administered the
grievance process, and inferentially, was acting as the Chancellor’s designee. White
either reviewed Floyd-Gimon’s grievance himself or sent the grievance to Fendley
and Pierson—a disputed fact—but did not refer Floyd-Gimon’s grievance to any
grievance committee.
At White’s request, Fendley and Pierson wrote a memorandum stating their
belief Floyd-Gimon’s termination was justified because “it [was] clear that” Floyd-
Gimon altered patient records, apparently due to “sloppiness . . . and, when
discovered,” Floyd-Gimon committed “numerous acts of record alteration in order to
cover up . . . inadequate record maintenance.” The memorandum characterized
Floyd-Gimon’s behavior as “gross misconduct potentially affecting not only patients’
lives, but the ongoing viability of the UAMS Liver Transplant Program.” The
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memorandum described three specific alterations as examples. On June 6, 2008,
White denied Floyd-Gimon’s grievance.
On May 22, 2008, Forrest notified the ASBN by letter that UAMS terminated
Floyd-Gimon’s employment because Floyd-Gimon “intentionally alter[ed] patient
medical records to produce source documents needed to respond to a routine care
related audit.” In response, ASBN sent Floyd-Gimon a “Letter of Warning” stating,
“While employed at UAMS you failed to accurately document . . . medical record
laboratory and diagnostic findings.”
B. Procedural History
Floyd-Gimon sued defendants under 42 U.S.C. § 1983 in the district court on
June 15, 2010, alleging defendants violated the Fourteenth Amendment by depriving
Floyd-Gimon of (1) a property interest in her employment without due process; (2) a
liberty interest in her reputation without due process;4 and (3) equal protection by
terminating Floyd-Gimon because of her gender. On March 16, 2012, the district
court granted defendants’ motion for summary judgment, finding no evidence Floyd-
Gimon either was deprived of any constitutionally protected property or liberty
interest or was terminated because of her gender. The district court dismissed Floyd-
Gimon’s claims for monetary damages against UAMS and the individual defendants
acting in their official capacities, holding the Eleventh Amendment bars these claims.
Floyd-Gimon appeals the district court’s holdings concerning her claims against all
4
Although Floyd-Gimon initially characterized her interest in her reputation as
a property interest, the district court and both parties later characterized it as an
alleged liberty interest, so we will do the same. Cf. Am. Family Mut. Ins. Co. v.
Hollander, 705 F.3d 339, 348 (8th Cir. 2013) (“[A] party will be deemed to have
acquiesced in trying an unpleaded issue when the issue is ‘not inconsistent with’ the
position taken by the . . . party earlier in the proceedings.” (quoting Baker v. John
Morrell & Co., 382 F.3d 816, 831 (8th Cir. 2004))); see also, e.g., Rush v. Perryman,
579 F.3d 908, 912-13 (8th Cir. 2009) (framing a public employee’s reputational
interest as a liberty interest).
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defendants for injunctive relief and her claims for monetary damages against the
individual defendants in their personal capacities.
II. DISCUSSION
Defendants are entitled to summary judgment if “there is no genuine dispute
as to any material fact and [they are] entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). We review the district court’s grant of summary judgment de
novo, viewing the evidence in the light most favorable to Floyd-Gimon. See Hill v.
City of Pine Bluff, Ark., 696 F.3d 709, 711 (8th Cir. 2012).
A. Due Process Property Interest Claim
To prevail on her due process property interest claim, Floyd-Gimon must prove
defendants deprived her of “a property right in continued employment” without due
process. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985). Whether
Floyd-Gimon had such a right depends on state law. See Eddings v. City of Hot
Springs, Ark., 323 F.3d 596, 601 (8th Cir. 2003). The district court determined
Floyd-Gimon did not have a property interest in her employment because
employment in Arkansas is at-will and UAMS did not create any expectation of
continued employment.
Assuming Floyd-Gimon had a property interest in her continued employment,
her due process claim fails because she received all of the process she was due. “A
public employee with a protected property interest in continued employment receives
sufficient due process if he [or she] receives notice, an opportunity to respond to the
charges before his [or her] termination, and post-termination administrative review.”
Young v. City of St. Charles, Mo., 244 F.3d 623, 627 (8th Cir. 2001). A pre-
deprivation hearing need only provide the employee with “oral or written notice of
the charges against him [or her], an explanation of the employer’s evidence, and an
opportunity to present his [or her] side of the story.” Loudermill, 470 U.S. at 546.
“[T]he pretermination ‘hearing,’ though necessary, need not be elaborate.” Id. at 545.
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Floyd-Gimon received pre-deprivation process through the meetings with her
supervisors and post-deprivation process through UAMS’s grievance procedure. She
attended three meetings with supervisors before her termination when she repeatedly
was told that she was accused of altering records, some of which were “cut and
pasted.” The supervisors asked Floyd-Gimon whether she was involved in any such
misconduct and about the treatment of records. She received a chance to respond to
the allegations. Floyd-Gimon received “notice [and explanation] of the charges
against [her] . . . and an opportunity to present [her] side of the story” before being
terminated. Id.Floyd-Gimon’s attorney acknowledged as much at oral argument, but
maintained Floyd-Gimon should have been shown the allegedly altered records. See
id. (requiring employers to explain the evidence against employees before terminating
them). UAMS terminated Floyd-Gimon for altering “medical records for the response
to the April 18 audit request.” On April 18, 2008, Weeks informed Floyd-Gimon by
email of problems with specific patients’ records, listing nine or ten patients by name.
Among those listed patients were four whose records Hohn and Alonso later
determined had been altered. The same day, Weeks also spoke with Floyd-Gimon on
the phone and discussed specific patient records needed for the audit response, like
lab results. Butts’ April 19 email, which Floyd-Gimon received, also mentioned
records were missing for several of these patients. These communications, combined
with the later reference to the April 18 audit request, gave Floyd-Gimon sufficient
notice of the records supporting termination. Although UAMS officials could have
been more forthcoming in explaining the allegations of wrongdoing, they were not
required to do so, and their alleged failure to provide Floyd-Gimon with specific
examples of altered records at the time of the charges, in this case, does not rise to the
level of a due process violation. The district court properly granted summary
judgment to the defendants on this claim.
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B. Due Process Liberty Interest Claim
Floyd-Gimon asserts defendants deprived her of a liberty interest in her
reputation without due process, in violation of the Fourteenth Amendment, by
reporting misconduct to the ASBN without first giving her a name-clearing hearing.
To succeed on this claim, Floyd-Gimon must show defendants deprived her of a
constitutionally protected liberty interest in her reputation without giving her “an
opportunity to clear . . . her name.”
Regardless of whether defendants deprived Floyd-Gimon of a liberty interest
in her reputation, she cannot establish a due process violation because she did not
sufficiently, if at all, request a name-clearing hearing. An employee must request a
name-clearing hearing in order to be entitled to one. See Winskowski v. City of
Stephen, 442 F.3d 1107, 1112 (8th Cir. 2006). Floyd-Gimon says she requested a
name-clearing hearing “at the time she filed her grievance[, asking] to be able to
respond to the allegations to a review panel.” Defendants maintain Floyd-Gimon did
not “adequately alert [UAMS] that she was complaining of a lack of due process in
connection with a liberty interest as opposed to making a grievance dispute over a
policy interpretation or a lack of process associated with a perceived [property]
interest in her job.”
Our circuit has not addressed the specificity with which an employee must
request a name-clearing hearing. The Fifth Circuit held,
where the only issue was [the employee’s] guilt or innocence of the
particular charge that stigmatized him, his request to participate in
established grievance, appeals, or other review procedures to contest
defamatory charges was sufficient to state a request for a name-clearing
hearing. A discharged employee need not use the term “name-clearing
hearing.”
Rosenstein v. City of Dallas, Tex., 876 F.2d 392, 396 (5th Cir. 1989).
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The Sixth Circuit distinguished Rosenstein, requiring a plaintiff to “ask
specifically for a name-clearing hearing when the plaintiff raise[s] both liberty and
property deprivation claims.” McManamon v. Charter Twp. of Redford, 238 F.3d
422, 2000 WL 1888616, at *6 n.9 (6th Cir. Dec. 19, 2000) (unpublished table
opinion). The Sixth Circuit found Rosenstein distinguishable because the only issue
in Rosenstein was the truth or falsity of the stigmatizing charge—and not the degree
of process involved in the termination decision itself. See Ludwig v. Bd. of Trs. of
Ferris State Univ., 123 F.3d 404, 411 (6th Cir. 1997); see also Rosenstein, 876 F.2d
at 396. By contrast, the Sixth Circuit concluded a plaintiff’s letter accusing his
employer of denying him due process did not state a request for a name-clearing
hearing because it “was insufficient to alert the [employer] that [the employee] was
complaining of a lack of due process in connection with a liberty interest as opposed
to a lack of due process in connection with his claimed property interest, a claim
which he had been asserting for some time.” Ludwig, 123 F.3d at 411.
The distinction the Sixth Circuit identified in Ludwig is an important one.
Where, as in Rosenstein, the only issue a discharged employee raises in a grievance
is the truth or falsity of the stigmatizing charge, the grievance implicates only a
liberty interest. See Rosenstein, 876 F.2d at 396. Where an employee asserting a
lack of due process regarding a property interest in continued employment does not
specifically mention a reputational interest, the employer does not have notice of the
need for a name-clearing hearing because the type of process due depends on the
interest asserted. Compare Young, 244 F.3d at 627 (“A public employee with a
protected property interest in continued employment receives sufficient due process
if he [or she] receives notice, an opportunity to respond to the charges before his [or
her] termination, and post-termination administrative review.”), with Rush, 579 F.3d
at 912-13 (explaining that a plaintiff requesting process with regard to a liberty
interest must receive a public name-clearing hearing after the stigmatizing statements
are made public).
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The present case is more similar to Ludwig than to Rosenstein. Floyd-Gimon’s
grievance generally complained that she was denied “due process in the disciplinary
process.” She did not mention an interest in her reputation. She asked to be able to
review the documents at issue, to have a chance to address the charges “to determine
what discipline, if any, [was] appropriate,” and to be reinstated. Thus, Floyd-
Gimon’s grievance did not target “the truth or falsity of the charge that stigmatized”
her, Rosenstein, 876 F.2d at 396, and therefore Floyd-Gimon’s communications were,
as a matter of law, “insufficient to alert [UAMS] that [Floyd-Gimon] was
complaining of a lack of due process in connection with a liberty interest as opposed
to a lack of due process in connection with [her] claimed property interest,” Ludwig,
123 F.3d at 411. The district court properly granted summary judgment on Floyd-
Gimon’s due process liberty interest claim.
C. Equal Protection Claim
This court analyzes discriminatory intent in claims—such as Floyd-
Gimon’s—asserting gender discrimination in violation of the Fourteenth
Amendment’s Equal Protection Clause in “essentially the same” manner as claims
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. See Hill,
696 F.3d at 712 (quoting Tipler v. Douglas Cnty., 482 F.3d 1023, 1027 (8th Cir.
2007)). “[A]n employee may survive an employer’s motion for summary judgment”
either by producing “direct evidence of discrimination,” or “by showing a genuine
dispute for trial under the burden-shifting framework established in McDonnell
Douglas Corporation v. Green, 411 U.S. 792, 802-05 (1973).” McCullough v. Univ.
of Ark. for Med. Scis., 559 F.3d 855, 860 (8th Cir. 2009) (parallel citation omitted).
Under McDonnell Douglas, the plaintiff first must establish a prima
facie case of discrimination. If the plaintiff establishes a prima facie
case, then the burden of production shifts to the defendant to articulate
a legitimate, nondiscriminatory reason for discharging the employee. If
the employer meets this burden, then the employee must show that the
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employer’s proffered reason for firing [her] is a pretext for unlawful
discrimination.
Id.After finding no direct evidence Floyd-Gimon’s termination was motivated by
gender discrimination, the district court engaged in the McDonnell Douglas analysis.
The district court found, regardless of whether Floyd-Gimon had shown a prima facie
case of gender discrimination, defendants had proffered a legitimate, non-
discriminatory reason for terminating Floyd-Gimon—altering patient records. The
district court focused on whether Floyd-Gimon had shown sufficient threshold
evidence that this reason was a pretext for gender discrimination. The district court
determined she had not.
1. No Direct Evidence of Discrimination
Direct evidence of discrimination shows “‘a specific link between the alleged
discriminatory animus and the challenged decision, sufficient to support a finding by
a reasonable fact finder that an illegitimate criterion actually motivated the adverse
employment action.’” McCullough, 559 F.3d at 860 (quoting Russell v. City of Kan.
City, Mo., 414 F.3d 863, 866 (8th Cir. 2005)). The direct evidence must “clearly
point[] to the presence of an illegal motive.” Griffith v. City of Des Moines, 387 F.3d
733, 736 (8th Cir. 2004). Such evidence may be circumstantial. See id. Direct
evidence does not include “‘stray remarks in the workplace, statements by
nondecisionmakers, or statements by decisionmakers unrelated to the decisional
process.’” Clearwater v. Indep. Sch. Dist. No. 166, 231 F.3d 1122, 1126 (8th Cir.
2000) (quoting Fast v. S. Union Co., 149 F.3d 885, 890 (8th Cir. 1998)).
During White’s deposition, White testified that he would have wanted to see
the allegedly altered records if he were in Floyd-Gimon’s position, even though
Floyd-Gimon did not have that opportunity. Counsel continued to question White as
follows:
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Q. Okay. So why would you want to see [the altered documents at
issue] if you are being fired for falsifying documents, but you
don’t think [Floyd-Gimon and Belcher] should have seen them?
A. I’m me and they are them.
Q. What’s the difference?
A. We’re different.
Q. Why are you different?
A. Because we are.
Q. Why? Give me how you’re different.
A. I’m different in that I am 80. I don’t know how old they are. They
are male - - I mean they are female and I’m male. We’re
different.
White went on to say that he would not have been entitled to any more of a hearing
than Floyd-Gimon received, were he in Floyd-Gimon’s position. Floyd-Gimon
asserts White’s remark that Floyd-Gimon is different because she is female is direct
evidence White denied Floyd-Gimon a hearing because of discriminatory animus.
The district court held this was not direct evidence of gender discrimination
because
White did not testify that gender was a factor in [Floyd-Gimon’s]
termination. In fact, he testified that he would have been afforded the
same grievance process as that afforded [Floyd-Gimon]. White was not
involved in the decision to terminate [Floyd-Gimon]. [Floyd-Gimon]
complains that White affirmed her termination without referring the
matter to a grievance panel. White testified that even he would not have
the right to have a panel appointed.
We need not decide whether White’s remark about Floyd-Gimon’s gender
“‘reflect[s] a discriminatory attitude,’” King v. Hardesty, 517 F.3d 1049, 1058 (8th
Cir. 2008), abrogated on other grounds by Torgerson v. City of Rochester, 643 F.3d
1031, 1043, 1058 app. (8th Cir. 2011) (en banc) (quoting Beshears v. Asbill, 930 F.2d
1348, 1354 (8th Cir. 1991) (reasoning remarks by an employer may be direct
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evidence of discrimination if they “reflect a discriminatory attitude”)), because White
was not involved in the decision to terminate Floyd-Gimon and his remark about
Floyd-Gimon’s gender did not relate to any decision to deny Floyd-Gimon a hearing.
See Clearwater, 231 F.3d at 1126 (excluding from the definition of direct evidence
“‘statements by nondecisionmakers’” and “‘statements by decisionmakers unrelated
to the decisional process’”). White’s remark concerned why Floyd-Gimon was not
shown the allegedly altered documents. Floyd-Gimon does not assert on appeal she
was denied an opportunity to view the documents because of gender discrimination.
White also stated he would not have been entitled to a public hearing were he in
Floyd-Gimon’s position. White’s comment is not evidence that “clearly points to the
presence of an illegal motive,” Griffith, 387 F.3d at 736, for any challenged
employment decision. The district court did not err in finding Floyd-Gimon failed
to show direct evidence of discrimination.
2. Pretext
Floyd-Gimon claims the defendants’ explanation for terminating her was a
pretext for gender discrimination because several male nurses and two male
physicians were similarly situated to her, but received more lenient treatment. To
show pretext, Floyd-Gimon faces a “‘rigorous’” test to show more leniently
disciplined male employees were “‘similarly situated in all relevant respects.’” Bone
v. G4S Youth Servs., LLC, 686 F.3d 948, 955-56 (8th Cir. 2012) (quoting Rodgers
v. U.S. Bank, 417 F.3d 845, 853 (8th Cir. 2005), abrogated on other grounds by
Torgerson, 643 F.3d at 1043, 1058 app.). “‘[T]he individuals used for comparison
must have dealt with the same supervisor, have been subject to the same standards,
and engaged in the same conduct without any mitigating or distinguishing
circumstances.’” Id. at 956 (quoting Clark v. Runyon, 218 F.3d 915, 918 (8th Cir.
2000)).
Floyd-Gimon argues the district court erred in finding no evidence of pretext
by appearing “to conclude that comparator evidence could only be considered if one
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comparator could meet the standard.” Floyd-Gimon suggests “the standard should
have been lowered by the fact that Floyd-Gimon offered multiple comparators.”
Floyd-Gimon does not identify any cases supporting this proposal, which is contrary
to established law. See, e.g., id.Floyd-Gimon does not challenge the district court’s conclusion that the male
employees Floyd-Gimon identified, considered separately, were not “similarly
situated in all relevant respects.” Id. Nor could she do so in good faith. Even
assuming the charges against Floyd-Gimon were not more serious than those faced
by the male employees Floyd-Gimon identifies, Floyd-Gimon did not produce any
evidence her comparators had the same supervisor, or performed similar duties and
were subject to the same standards or engaged in the same conduct without similar
discipline. See Bone, 686 F.3d at 956. The physicians identified by Floyd-Gimon
were not similarly situated because they were physicians, whereas Floyd-Gimon was
a nurse coordinator with different professional responsibilities. See Strong v. Univ.
Healthcare Sys., L.L.C., 482 F.3d 802, 807 (5th Cir. 2007) (“We cannot assume, nor
require, that hospitals discipline doctors and nurse coordinators in an identical
fashion.”). Of the male nurses Floyd-Gimon identifies, none performed the same
duties as Floyd-Gimon or were subject to the same standards of the Liver Transplant
Department. See Bone, 686 F.3d at 956.
In her reply brief, Floyd-Gimon asserts pretext can be inferred from
defendants’ “shifting explanations for Floyd-Gimon’s termination.” Floyd-Gimon
waived this argument by not asserting it in her opening brief. See Chay-Velasquez
v. Ashcroft, 367 F.3d 751, 756 (8th Cir. 2004).
The district court correctly concluded Floyd-Gimon did not show the
defendants’ explanation for terminating her was a pretext for gender discrimination.
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III. CONCLUSION
We affirm the district court’s grant of summary judgment to defendants.
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