Aisha Change v. Midtown Neurology, P.C.

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11405
Non-Argument Calendar
____________________
AISHA CHANGE,
Plaintiff-Appellant,
versus
MIDTOWN NEUROLOGY, P.C.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:19-cv-00885-SCJ
____________________
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2 Opinion of the Court 21-11405
Before WILSON, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Plaintiff–Appellant Aisha Change (“Change”) appeals the
district court’s grant of summary judgment to Midtown Neurol-
ogy, P.C. (“Midtown Neurology”). Change brought a two-count
claim against Midtown Neurology for discrimination and retalia-
tion in violation of the Americans with Disabilities Act of 1990
(“ADA”). The district court adopted the magistrate judge’s report
and recommendation (“R&R”) and granted summary judgment to
Midtown Neurology on both the discrimination and retaliation
claims. Change has appealed solely the grant of summary judg-
ment on the ADA retaliation claim. While her opening brief lists
five separate issues on appeal, Change’s argument boils down to a
simple question: did Midtown Neurology satisfy its burden under
the McDonnell Douglas/Burdine framework of asserting a nonre-
taliatory justification for Change’s alleged termination? Tex. Dep’t
of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981);
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817(1973). Because we agree with the district court and magistrate
judge that the answer is “yes,” we affirm the grant of summary
judgment.
I.
In July 2018, Midtown Neurology hired Change as a Botox
coordinator. Several months earlier, in May 2018, Change had
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21-11405 Opinion of the Court 3
been diagnosed with pseudotumor cerebri, a condition that causes
increased intracranial pressure and that is treated with medications
and surgery to reduce the amount of cerebrospinal fluid in the
head. Change completed several days of on-the-job training at
Midtown Neurology and began her official employment there on
July 30, 2018.
At Midtown Neurology, Change reported to Juanita Wil-
liams (“Williams”), the billing manager, who in turn reported to
Deirdre Plato (“Plato”), the practice manager. In her first week as
an employee, she missed two days of work, one day of which was
for a post-operation doctor appointment. The next week, she had
a lumbar puncture and was out for another two days. On August
17, 2018, Change emailed Williams that she had a surgery sched-
uled for August 21, 2018 and would be out for some time. Mid-
town Neurology told Change to take as much time off as she
needed to recover from that surgery. Change returned to work on
September 4, 2018 but was out again until September 24, 2018 to
recover further.
After September 24, 2018, Change was absent or worked
half days on September 27, October 5, and October 12, 2018. On
October 16, 2018, Change fell out of her desk chair, and she missed
the following two days of work. She returned to work October 19,
2018. When Change needed to miss days of work, she offered to
perform remotely the work that she could do as a Botox coordina-
tor. During Change’s tenure with Midtown Neurology, she was
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4 Opinion of the Court 21-11405
absent from work 29 business days of the 59 business days that Mid-
town Neurology was open. 1
In mid-October 2018, Change told Williams that she would
need more time off for another surgery. Her last day of employ-
ment with Midtown Neurology was October 19, 2018, though the
parties dispute whether Williams terminated her employment or
whether Change resigned. According to Change, she met with
Williams on October 19, 2018, and Williams allegedly said that if
Change did not resign, Williams would have to fire her because she
needed another surgery. In contrast, Midtown Neurology con-
tends that Change told Williams that she needed to take care of her
health and that they agreed that Change would resign.
On April 4, 2019, Change filed a corrected amended com-
plaint in the district court, alleging one count of discrimination and
one count of retaliation in violation of the ADA. On February 3,
2021, a magistrate judge entered an R&R recommending that the
district court grant summary judgment to Midtown Neurology on
both claims. Change objected to the magistrate judge’s recom-
mendation of summary judgment on the ADA retaliation claim,
but she did not object to the recommendation that summary
1 Change argues that she actually was absent only 28 business days, as she
disputed Midtown Neurology’s time records which showed her as absent on
August 20, 2018. The district court, in turn, found that she missed “at least”
27 days of the 59 business days that Midtown Neurology was open during the
relevant period.
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21-11405 Opinion of the Court 5
judgment be granted on the ADA discrimination claim. The dis-
trict court overruled her objections and granted summary judg-
ment to Midtown Neurology on both claims. Change then filed
the instant appeal.
II.
We review a district court’s grant of summary judgment de
novo, applying the same legal standards used by the district court.
Felts v. Wells Fargo Bank, N.A., 893 F.3d 1305, 1311 (11th Cir.
2018). “Summary judgment is appropriate where there is no gen-
uine issue as to any material fact and the moving party is entitled
to judgment as a matter of law.” Jurich v. Compass Marine, Inc.,
764 F.3d 1302, 1304 (11th Cir. 2014). We view all facts and reason-
able inferences in the light most favorable to the nonmoving party.
Id.III.
On appeal, Change argues that the district court erroneously
granted summary judgment because Midtown Neurology could
not satisfy its burden of producing a non-retaliatory justification for
terminating her. The McDonnell Douglas/Burdine framework for
employment discrimination and retaliation claims is as follows:
Under McDonnell Douglas, the initial burden rests on
the plaintiff to establish, by a preponderance of the
evidence, a prima facie case of discrimination. Once
the plaintiff has set out a prima facie case, a presump-
tion of discrimination arises. The intermediate bur-
den of production then shifts to the employer to
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6 Opinion of the Court 21-11405
articulate a legitimate, non-discriminatory explana-
tion . . . . This intermediate burden is “exceedingly
light.” The employer need only offer admissible evi-
dence sufficient to raise a genuine issue of fact as to
whether it had a legitimate reason for [taking the ad-
verse employment action].
If an employer succeeds in carrying its intermediate
burden of production, the McDonnell Douglas
framework . . . drops out of the case, and the trier of
fact proceeds to decide the ultimate issue in the
case . . . .
On the other hand, where a plaintiff’s prima facie case
is established, but the employer fails to meet its bur-
den of production, the unrebutted presumption of
discrimination stands.
Turnes v. AmSouth Bank, NA, 36 F.3d 1057, 1060–61 (11th Cir.
1994) (footnote omitted) (citations omitted) (quoting Meeks v.
Comput. Assocs. Int’l, 15 F.3d 1013, 1019 (11th Cir. 1994)).
Here, the magistrate judge concluded that Change had es-
tablished a prima facie case for her ADA retaliation claim. He then
shifted the burden to Midtown Neurology, and he concluded that
Midtown Neurology satisfied its burden because “excessive absen-
teeism” was a legitimate, non-retaliatory basis for Change’s alleged
termination. He then concluded that Change had not shown that
excessive absenteeism was a pretextual justification for her alleged
termination, so he recommended granting summary judgment to
Midtown Neurology on the ADA retaliation claim.
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21-11405 Opinion of the Court 7
Change’s argument before the district court (objecting to
the magistrate judge’s R&R) and her only argument in her initial
brief to this Court is that because Midtown Neurology maintained
that Change voluntarily resigned, then it could not simultaneously
contend that it actually relied upon Change’s excessive absentee-
ism as the reason for firing her. Put differently, to satisfy its burden,
Midtown Neurology had to show that it actually relied upon its
proffered non-retaliatory reason for Change’s alleged termination
(i.e., excessive absenteeism), which it could not do because it ar-
gued that it did not fire her in the first place. The district court
overruled this objection, stating that the existence of a factual dis-
pute over whether Change was fired or resigned did not preclude
Midtown Neurology from arguing, in the alternative, that it had a
legitimate non-retaliatory reason for Change’s alleged termination
should a factfinder agree with Change that Midtown Neurology
had fired her.
Change raises this same objection on appeal, arguing that
Midtown Neurology could not satisfy its burden under McDonnell
Douglas/Burdine because it could not show that it actually relied
upon Change’s excessive absenteeism as a basis for her alleged ter-
mination. She phrases this argument as the “Actual Reliance Rule”:
“An employer cannot meet its Burdine burden of producing a
non-retaliatory justification for the challenged employment deci-
sion if it cannot show that it actually relied upon that justification
in making the decision.” We agree with the magistrate judge and
district court that Midtown Neurology satisfied its burden of
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8 Opinion of the Court 21-11405
showing a legitimate non-retaliatory reason for Change’s alleged
termination.
The Supreme Court in Burdine stated that a defendant
“need not persuade the [factfinder] that it was actually motivated
by the proffered reasons” but instead must present evidence that
“raises a genuine issue of fact as to whether it discriminated [or re-
taliated] against the plaintiff.” 450 U.S. at 254, 101 S. Ct. at 1094.
In other words, the employer’s evidence must “allow the trier of
fact rationally to conclude that the employment decision had not
been motivated by discriminatory animus.” Id. at 257, 101 S. Ct. at
1096. We have since interpreted Burdine’s holding as follows: “alt-
hough . . . the employer need not prove it was actually motivated
by the proffered reason, Burdine clearly does not relieve the em-
ployer from producing a reason that was available to it at the time
of the decision’s making,” so “an employer may not satisfy its bur-
den of production by offering a justification which the employer
either did not know or did not consider at the time the decision was
made.” Turnes, 36 F.3d at 1061.
Here, Midtown Neurology has clearly satisfied this “exceed-
ingly light” burden. Id. (quoting Meeks, 15 F.3d at 1019). Williams
and Plato were aware of Change’s many absences from the office
and testified that those absences burdened Midtown Neurology’s
business. Change argues that, even if Midtown Neurology was
aware of her excessive absenteeism, it never produced evidence
that it relied upon that justification for terminating her because it
contended that it did not terminate her, so absenteeism is merely a
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21-11405 Opinion of the Court 9
“hypothetical reason” that could have (but did not in fact) justify
her termination.
Accepting this argument, though, would substantially limit
how employers could respond to claims of discrimination and re-
taliation. In effect, Change is asking us to hold that an employer
who disputes whether it took an adverse employment action could
not present, in the alternative, a legitimate reason for the alleged
adverse employment action if proven. Neither Burdine nor any of
our decisions requires that result. Instead, Burdine merely requires
employers to produce evidence that would allow a factfinder to
conclude that any alleged adverse employment action was not mo-
tivated by discrimination or retaliation. 450 U.S. at 254, 101 S. Ct.
at 1094. Here, given that Change was absent from work at least 27
out of 59 working days, a factfinder could readily conclude that, if
Change shows that she was fired, Midtown Neurology had a legit-
imate non-retaliatory reason for terminating her employment.
While this Court has never previously held in a published
opinion 2 that an employer may argue that (i) it did not fire the
2 We have previously reached this result in an unpublished opinion. See
Thomas v. STERIS Corp., 819 F. App’x 741, 745 (11th Cir. 2020) (per curiam)
(“Separately, the district court did not err by allowing [the employer] to pro-
vide legitimate, non-discriminatory reasons for [the employee’s] separation
from the company even though [the employer] also maintained that he re-
signed and was not terminated, because the ultimate burden rested on [the
employee] to show that those reasons were pretexts for discrimination or re-
taliation.”).
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10 Opinion of the Court 21-11405
plaintiff and (ii) it had a legitimate non-retaliatory reason for the
plaintiff’s alleged termination, we are persuaded by the reasoning
of the Seventh Circuit that employers may assert these alternative
positions under the McDonnell Douglas/Burdine framework. See
E.E.O.C. v. Our Lady of Resurrection Med. Ctr., 77 F.3d 145, 150
(7th Cir. 1996) (“The [employer] has a right to offer a legitimate,
nondiscriminatory reason for its actions regardless of whether [the
employee] quit or was fired. . . . Even if a factfinder were to deter-
mine that [the employee] was fired, the [employer’s] proffered rea-
son for termination would remain unchanged.”). In that case, the
EEOC brought a claim on behalf of an employee alleging that the
employer’s firing of the employee was discriminatory. Id. at 146.
The employer and employee disputed whether the employee was
fired or resigned voluntarily. Id. at 149. The EEOC argued on ap-
peal that summary judgment was inappropriate because the em-
ployer could not present a non-discriminatory reason for the al-
leged firing because the employer contended that the employee
quit. Id. The Seventh Circuit rejected this argument, reasoning as
follows:
[The EEOC] contends that the [employer] cannot
overcome the presumption of discrimination because
it initially denied there was an involuntary discharge.
The EEOC essentially claims that the [employer] is
handcuffed with an admission that makes the pre-
sumption in the prima facie case an irretrievable fact.
Such a construction . . . would result in outcomes not
intended by Congress. Any time an employer and
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21-11405 Opinion of the Court 11
employee disagreed about how the employee left the
company, the employee would automatically win if
the employee could sufficiently allege a prima facie
case. Such a result is obviously not the purpose of . . .
the burden-shifting process established in McDonnell
Douglas/Burdine.
Id. at 150. We agree. Midtown Neurology was not “handcuffed”
by its contention that Change resigned; it was permitted to argue,
in the alternative, that if Change successfully proved that she was
fired then Midtown Neurology had a non-retaliatory basis for her
termination. Ample evidence supports this non-retaliatory basis.
Even under Change’s version of the facts, Williams asked her to
resign in lieu of being fired because of her excessive absenteeism.
Thus, it is clear that Midtown Neurology’s actions—whether
merely agreeing to a mutually agreeable resignation or a firing—
were in reliance on Change’s excessive absenteeism. 3
For the foregoing reasons, the district court’s grant of sum-
mary judgment is
AFFIRMED.
3 Change raises for the first time in her reply brief several arguments concern-
ing whether Midtown Neurology’s proffered justification of excessive absen-
teeism was pretext for retaliatory intent. We do not address the question of
pretext because “[a]rguments raised for the first time in a reply brief are not
properly before the reviewing court.” United States v. Oakley, 744 F.2d 1553,
1556 (11th Cir. 1984).