Linda H. Moser v. Florida Department of Corrections

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-16693
Non-Argument Calendar
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D.C. Docket No. 4:15-cv-00102-RH-CAS
LINDA H. MOSER,
Plaintiff-Appellant,
versus
FLORIDA DEPARTMENT OF CORRECTIONS,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Florida
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(September 25, 2017)
Before MARCUS, WILLIAM PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Linda Moser appeals the summary judgment in favor of her former
employer, the Florida Department of Corrections, and against her complaint of
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employment discrimination and retaliation, in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a), -3(a), and the Florida Civil Rights
Act of 1992, Fla. Stat. § 760.01(1). The district court also entered summary
judgment against Moser’s complaint that the Department violated the Florida
Public Sector Whistleblower Act, Fla. Stat. § 448.101, et seq., but Moser has
abandoned any challenge that she could have raised to that adverse ruling. See
Hamilton v. Southland Christian School, Inc., 680 F.3d 1316, 1318–19 (11th Cir.
2012). Moser argues that she presented sufficient evidence of pervasive gender-
based harassment by the Warden of the Okaloosa Correctional Institution to
support her complaints of a hostile work environment and of retaliation. We
affirm.
We review a summary judgment de novo. Moton v. Cowart, 631 F.3d 1337,
1341 (11th Cir. 2011). We view the evidence in the light most favorable to the
non-moving party. Id. Summary judgment is appropriate when the movant
establishes that there is no genuine dispute of a material fact and that it is entitled
to a judgment in its favor as a matter of law. Id.
The district court did not err by entering summary judgment against Moser’s
complaint of a hostile work environment. Title VII and the Florida Civil Rights
Act prohibit an employer from discriminating against an employee with respect to
the “terms, conditions, or privileges of employment, because of” her gender. 42
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U.S.C. § 2000e-2(a)(1); Fla. Stat. § 760.10(1)(a). But Moser failed to prove that
she was subjected to unwelcome harassment because of her gender. See Miller v.
Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002). Moser speculated
that her gender was the reason that the warden assigned her more duties than those
required of her male precedessor, Jimmy Jeffery; that she did not receive assistance
from fellow employees; and that she did not receive a permanent set of keys. But
Moser presented no evidence that she suffered harassment based on her sex. The
Warden testified that he promoted Moser to supervise the mailroom, commended
her for her work ethic and named her employee of the month, and later promoted
her to fill Jeffery’s position as general services supervisor, with the warning that
she would have to assume additional responsibilities. Jeffery and the Warden
stated that the mail department was understaffed early in Moser’s and Jeffery’s
tenures, and Jeffery averred that he completed his extra duties by asking coworkers
to repay his past favors. The Warden testified that he tried to assist Moser by
volunteering officers to perform extra duties when they were available. Moser
provided no evidence “that but for the fact of her sex, she would not have been the
object of [the alleged] harassment.” See Henson v. City of Dundee, 682 F.2d 897,
904 (11th Cir. 1982).
The district court also did not err by entering summary judgment against
Moser’s complaint that she was terminated in retaliation for filing a grievance
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against the Warden based on his discrimination. Even if we were to assume, like
the district court, that Moser established a prima facie case of retaliation in
violation of Title VII and the Florida Civil Rights Act, 42 U.S.C. § 2000e-3(a); Fla.
Stat. § 760.10(7), the Warden provided a legitimate, nonretaliatory reason for
Moser’s termination, see Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253,
1264 (11th Cir. 2010). The Office of the Inspector General discovered that Moser
had emailed a literary journal endeavoring to misappropriate prize money that it
had awarded to an inmate, Charles Norman; that Moser had filed a disciplinary
action against Norman falsely accusing him of failing to submit a waiver
renouncing the prize; and that Moser returned a letter to Norman under the false
pretense that he was operating a business in violation of prison rules. Moser
acknowledged that Norman had submitted a waiver of compensation and that his
letter had not concerned a business, and Moser’s assistant, Kimberly Kenealy,
stated that Moser had a “vendetta” against Norman. The Warden fired Moser based
on the findings of an independent investigator that Moser had acted with
negligence, had failed to answer truthfully questions related to the performance of
her official duties, had engaged in conduct unbecoming a public employee, and
knowingly had submitted inaccurate or untruthful information.
Moser failed to present any circumstantial evidence that her termination was
a pretext for discrimination or retaliation. That the investigation commenced after
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Moser filed her grievance against the Warden and concerned misconduct Moser
committed a year earlier is, as the district court stated, “sheer coincidence.”
Norman instigated the investigation by reporting Moser’s misdeeds to the Warden,
who then promptly transferred the matter to the Inspector General. Moser argued
that the investigation was flawed and the report was defective, but “[w]e are not in
the business of adjudging whether employment decisions are prudent or fair.
Instead, our sole concern is whether unlawful discriminatory animus motivates
[the] challenged employment decision.” Rojas v. Florida, 285 F.3d 1339, 1342
(11th Cir. 2002) (quoting Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d
1354, 1361 (11th Cir. 1999)). Moser blamed her termination on the Warden’s
remarks that they “don’t like each other” and she was not a “team player,” but
those remarks do not suggest the Warden harbored any discriminatory animus.
Moser also argued that she was fired because, according to Jeffery, the Warden had
a tendency to “h[o]ld a vendetta . . . [and] bring up stuff from the past when it
would suit his purpose,” but the Warden fired Moser after receiving the
investigator’s report. Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005)
(“mere conclusions and unsupported factual allegations are legally insufficient to
defeat a summary judgment motion”). Moser failed to prove that discrimination or
retaliation was the motivation for her termination.
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Moser also failed to prove that other employees were treated more favorably
than her. Moser argued that Kenealy was not disciplined for disavowing that
Norman had filed a waiver of compensation, but Kenealy was not an adequate
comparator. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir.
2004). Kenealy was a member of Moser’s protected class, was her subordinate, and
was not the target of the investigation into the misappropriation of Norman’s prize
money and filing a false disciplinary charge against Norman. “[T]he quantity and
quality of [a] comparator’s misconduct [must] be nearly identical” to evidence
discriminatory discipline. Burke-Fowler v. Orange Cty., Fla., 447 F.3d 1319, 1323
(11th Cir. 2006) (quoting Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.
1999)).
We AFFIRM the summary judgment in favor of the Warden.
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