Manika Lewis v. Secretary of the U.S. Air Force

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-12463
Non-Argument Calendar
____________________
MANIKA LEWIS,
Plaintiff-Appellant,
versus
SECRETARY OF THE U.S. AIR FORCE,
Defendant -Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:18-cv-00263-TKW-MJF
____________________
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2 Opinion of the Court 20-12463
Before JILL PRYOR, LUCK, and LAGOA, Circuit Judges.
LAGOA, Circuit Judge:
Manika Lewis, a federal employee, appeals from the district
court’s grant of summary judgment against her in her employment
discrimination suit against the United States Air Force alleging race
discrimination, pursuant to Title VII of the Civil Rights Act of 1964
(“Title VII”), as amended, 42 U.S.C. § 2000e-16(a); age discrimina-
tion, pursuant to the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 633a(a); and retaliation, pursuant to Title
VII, 42 U.S.C. 2000e-16(a). On appeal, Lewis claims that the district
court erred for several reasons. She argues that the district court
erred in finding that she failed to establish a prima facie case for age
and race discrimination because she proffered a comparator em-
ployee who was treated differently and because she established a
“convincing mosaic” of discrimination. She also asserts that the
district court erred in finding that she did not show that her em-
ployer’s justifications were pretextual. And she argues that the dis-
trict court erred when it found that an oral admonishment and a
proposed reprimand were not actionable and that she failed to
prove causation. We address these arguments in turn.
I.
In 2002, Lewis, a Black female over the age of forty, was
hired at Eglin Air Force Base as a civilian mammographer. Lewis
was promoted to chief of the mammography department, but, in
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20-12463 Opinion of the Court 3
2010, lost that title as the Air Force replaced all civilian department
heads with enlisted personnel. Between 2014 and 2016, Lewis’s su-
pervisor at Elgin was Beverly Gladle. But in August 2016, Gladle
left her position, and Eric Person, a Black male under the age of
forty, appointed Hannah Davis, a part-white and part-Asian female
under the age of forty, as Lewis’s supervisor.
In December 2018, Lewis filed suit against the Air Force, al-
leging three claims: (1) race discrimination in violation of Title VII,
42 U.S.C. § 2000e-16(a); (2) age discrimination in violation of the
ADEA, 29 U.S.C. § 633a(a); and (3) retaliation in violation of Title
VII, 42 U.S.C. § 2000e-16(a). Lewis alleged that several of the Air
Force’s decisionmakers, including Person, Davis, Jesse Thomas,
and David Ives, had discriminated against her. She generally al-
leged that: (1) Davis was appointed as her supervisor in retaliation
for complaints that Lewis previously made; (2) Davis admonished
her for failing to use a non-mandatory sign-in board; (3) Davis fre-
quently berated her; (4) Davis reprimanded her for events that did
not occur and proposed a ten-day suspension; (5) Lewis was not
given feedback after a negative performance evaluation; (6) deci-
sionmakers removed Lewis’s rights to access patient information;
and (7) Lewis was eventually completely removed from patient
care. Lewis claimed that all the decisionmakers’ actions were
fueled by discriminatory animus.
Before filing her complaint, Lewis also filed formal com-
plaints with Eglin’s Equal Employment Opportunity Office
(“EEO”), in which she alleged: (1) Person discriminated against her
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4 Opinion of the Court 20-12463
on the basis of age and reprisal by appointing Davis as Lewis’s su-
pervisor; (2) Davis discriminated against her on the basis of race
and reprisal when Davis issued an oral admonishment on August
29, 2016, based on Lewis’s failure to use the sign-in board; (3) Davis
discriminated against Lewis on the basis of reprisal by issuing a no-
tice of reprimand for disrespect and insubordination in November
2016; (4) Davis discriminated against Lewis because of her age and
race and Lewis was reprised against when issued a notice of pro-
posed suspension in January 2017; (5) Jeffrey Alder discriminated
against Lewis based on her race and reprisal when he removed her
ability to access protected health information (“PHI”) and person-
ally identified information (“PII”) on February 9, 2017; and (6) Scott
Super discriminated against Lewis based on her race and reprisal
on February 14, 2017, when he removed Lewis from patient care.
The parties conducted discovery, and following discovery,
the Air Force moved for summary judgment on all of Lewis’s
claims. In support of its motion, the Air Force submitted declara-
tions and deposition excerpts from Air Force employees and deci-
sionmakers, records from Lewis’s equal employment complaints,
and various memoranda, emails, and documents relating to
Lewis’s employment. The record evidence supporting the Air
Force’s motion for summary judgment is as follows:
Davis, the Non-Commissioned Officer in Charge
(“NCOIC”) of the Eglin mammography department, stated the fol-
lowing in her declaration. Davis knew Lewis’s race but not her
age. Davis knew that Lewis had previously filed an EEO complaint
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20-12463 Opinion of the Court 5
against a prior supervisor and learned of the current EEO activity
on August 11, 2016, when Lewis requested union time off to pre-
pare for an EEO meeting. Davis stated that, after Gladle’s depar-
ture, she became Lewis’s supervisor because Davis was already the
NCOIC over mammography and the only enlisted individual in the
department. Lewis was the only civilian employee in mammogra-
phy under Davis’s supervision. Davis previously reported Lewis
for bullying and disrespect toward Davis in April and July 2016. In
July 2016, Davis had Person contact Lewis because Lewis had failed
to use the white board and was missing from assigned patient care.
Regarding the notice of oral admonishment, Davis stated
that Lewis had failed to use the white board on August 25 and 26,
2016, after being told to do so. Although Lewis claimed that the
white board did not become mandatory until Mark Batcho decided
her union grievance on the issue in September 2016, Lewis had pre-
viously used the board in early 2016, Davis was unaware of any rule
prohibiting requiring a union employee from using the board, and
union officials told Davis on August 12 that the department was
free to use the board. Davis gave the notice because Lewis had
failed to use the board, Lewis was previously verbally warned, and
human resources said that the oral admonishment was the proper
response. After Davis gave this admonishment, the two met in Da-
vis’s office on August 30, and Lewis yelled at Davis because Davis
was reviewing paperwork relating to the admonishment but did
not immediately give Lewis the paperwork. When Lewis returned
later that day with a grievance form for Davis to sign, Lewis
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6 Opinion of the Court 20-12463
became upset that Davis took time to look over the form instead
of immediately signing it. Mammography had only two other em-
ployees at the time, and both used the white board. Davis main-
tained that she did not admonish Lewis because of her race, age, or
protected activity. Davis also responded to Lewis’s allegations that
Davis had ordered her to improperly certify certain quality assur-
ance records in May 2016, which Lewis was not qualified to review,
and that she frequently yelled at and disrespected Lewis. Davis
stated that she only issued the reprimand because of Lewis’s rude-
ness, Lewis never told her that she was not permitted to review the
files, Davis had not threatened Lewis’s job, and Davis was not au-
thorized to review the files.
According to Davis, by October 2016, Lewis was still not us-
ing the white board and was taking hour-long lunches, which she
was not permitted to do. Lewis was reprimanded because of her
actions and not because of any impermissible factors. No other
employee under Davis’s supervision was rude or disrespectful like
Lewis was. Regarding the January 2017 notice of proposed ten-day
suspension, Davis stated that Lewis had sent her a form to sign re-
garding Lewis’s approved time off on October 19, 2016. Davis was
out of the office that day attending training. On October 26, Davis
was running late for an appointment and was unable to sign the
form, so she told Lewis to use the white board to record her ab-
sence. Lewis then yelled at Davis in front of other employees and
patients, and Thomas ultimately signed the form. On November
14, Davis emailed Lewis, telling her that she was scheduled to
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20-12463 Opinion of the Court 7
perform a procedure on November 23, which required only one
technologist. Lewis told Davis via a November 18 email that she
would not be performing the procedure, but Davis was on leave
on that day. Lewis claimed that, pursuant to an October 31 perfor-
mance evaluation, her performance was marked as less than ac-
ceptable in three areas, and she sought clarification as to whether
she could perform the scheduled procedure, considering her eval-
uation and the department’s usual policy of requiring two technol-
ogists for this procedure. During a December 20 meeting between
Lewis and Davis, Lewis became insolent and did not allow Davis
to discuss Lewis’s duties and personnel file. Davis chose a suspen-
sion as the appropriate option for Lewis after consulting with hu-
man resources. No other employee under Davis’s supervision was
insubordinate or insolent like Lewis, and Davis stated that Lewis
was not suspended because of her race, age, or protected activity.
Davis’s declaration continued. Davis was on leave when
Lewis violated HIPAA, but after being told about how Lewis sent
protected information to her union representative, she reported
that fact to Thomas and Kenneth Humphries, the privacy officer.
Davis instructed Lewis to complete remedial privacy training,
which Lewis did not complete despite receiving two extensions.
Davis was instructed to remove Lewis’s access to the systems that
contained PHI and PII, and Lewis was later removed from mam-
mography. Davis stated that, contrary to Lewis’s allegations, Davis
never sent emails with unencrypted PHI or PII or sent protected
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8 Opinion of the Court 20-12463
information to the union. Davis was not involved in the decision
to reassign Lewis out of mammography.
In her deposition, Davis testified to the following. In the Oc-
tober 2016 performance evaluation, she did not question Lewis’s
performance relating to the scheduled procedure but instead ques-
tioned Lewis’s administrative skills. She specifically told Lewis that
Lewis was competent to perform stereotactic procedures. Davis
reported Lewis’s HIPAA breach but did not make any recommen-
dations to Humphries about it. After Davis reported the HIPAA
violation, Super initiated a quality assurance investigation of Lewis.
Additionally, the Air Force submitted emails and memos from Da-
vis supporting the statements she made in her declaration and dep-
osition.
In his declaration, Person, the Chief of Diagnostic Imaging
and Lewis’s third-level supervisor, stated the following. He knew
Lewis’s race, did not know her age, was aware of her prior EEO
activity, and became aware of her current EEO complaint some-
time in 2016. He assigned Davis as Lewis’s supervisor because Da-
vis was the only active-duty individual in the mammography de-
partment, and not because of Lewis’s race, age, or protected activ-
ity. When Lewis complained in April 2016 that Davis was invading
her personal space, Person told Davis to stop. Regarding the Au-
gust 2016 admonishment for failing to use the white board, Person
knew only what Davis and Thomas relayed to him. Regarding the
October 2016 proposed reprimand, Person did not witness the un-
derlying event because he was on leave. Person also lacked
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20-12463 Opinion of the Court 9
knowledge of the underlying event as to the proposed suspension.
In early 2016, in a meeting between Lewis, Person, Olivia Rainey,
and Thomas, which was held after Lewis called Rainey incompe-
tent, Thomas referred to Lewis as being confrontational and abra-
sive but did not mention Lewis’s EEO activity.
In his declaration, Thomas, Lewis’s second-level supervisor,
stated the following. He knew Lewis’s race, did not know her age,
was unaware of her prior EEO activity, and learned of her current
complaint in December 2016. The office took the white board
away while Lewis’s union grievance was pending but put the board
back once it was cleared to do so. Lewis could not combine any
fifteen-minute breaks with her lunch. Lewis was the only civilian
employee that Thomas had disciplined for two years, and no other
employee was rude and disrespectful. He did not discipline Lewis
because of her race, age, or protected activity. Regarding the no-
tice of suspension, Thomas stated that Lewis told him that she
would not assist with the November 2016 scheduled procedure.
He denied ever saying that Lewis was a “problem child” because of
her EEO activity. On December 15, 2016, Thomas prepared a
memo regarding Lewis’s refusal to perform the November 23 pro-
cedure, as Davis was on leave. While Davis had told Lewis that
she was scheduled for the procedure, Lewis stated that she would
not perform because of her low performance evaluation. Thomas
then had to cancel the procedure.
Gladle, Lewis’s direct supervisor from April to August 2016,
stated the following in her declaration. She explained that once the
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10 Opinion of the Court 20-12463
union approved use of the white board for employees to sign in
and out of work, Lewis still did not use it. In 2016, Gladle attended
a meeting with Lewis, Person, Thomas, and Rainey based on a dis-
pute that Lewis had with Rainey. Gladle stated that Thomas did
not mention Lewis’s EEO activity or call Lewis a “problem child.”
In his deposition, Mark Batcho stated the following. He was
unaware that Lewis had filed an EEO complaint prior to 2016 and
that she had filed a complaint in 2016. Before Davis became
Lewis’s supervisor, Person and Ives unofficially complained to
Batcho about Lewis’s behavior. Batcho denied Lewis’s grievances
against Davis. Although Lewis complained that she was ostracized
in the office, Batcho could not corroborate her claims. In a Sep-
tember 23, 2016, memo, Batcho responded to a union grievance
that Lewis filed after receiving the oral admonishment for her fail-
ure to use the white board. Batcho noted that Lewis had used the
white board prior to filing the grievance and that the union became
aware of the white board in July 2016. After the white board was
placed back into service, Davis told the department on August 17
that the board was required, but Lewis failed to use the board three
times and was given the oral admonishment. Batcho concluded
that requiring Lewis to use the white board was not contrary to the
labor agreement. In another decision responding to Lewis’s griev-
ance that Davis had created a hostile work environment, Batcho
concluded that there was no evidence that Lewis was harassed or
bullied. Similarly, in a July 29, 2016, memo, Ives, in response to
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20-12463 Opinion of the Court 11
grievances from Lewis, stated that he could not corroborate her
allegations that Davis harassed her.
According to the notice of proposed reprimand, Davis told
Lewis that she would be disciplined for (1) the rude and disrespect-
ful behavior from August 31 and (2) Lewis’s continual non-use of
the white board. And Lewis’s progress review worksheet, which
was prepared by Davis, stated she needed significant improvement
in: (1) day-to-day operations; (2) responsibility for assigned quality
control program and maintenance of equipment; and (3) perfor-
mance of miscellaneous administrative functions. Lewis was also
marked as needing significant improvement for her cooperation,
organizational skills, communication, timeliness, and thorough-
ness. Davis noted that Lewis needed to review radiology film more
carefully, did not always complete her assigned tasks, tended to dis-
regard the chain of command, and would not ask questions about
tasks when confused about them.
On January 4, 2017, Lewis was given a notice of proposed
ten-day suspension based on three events from late 2016. First, on
October 26, Lewis “loudly and belligerently” refused to use the
white board. Second, Lewis had refused to perform a procedure
that had been scheduled for November 23, which led to a delayed
finding of cancer in a patient. Third, Lewis was insolent toward
Davis on December 20, when, in a meeting to discuss Lewis’s job
duties, Lewis talked over Davis and questioned the purpose of their
meeting. A memo prepared by Jennifer Hinze, assistant NCOIC,
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12 Opinion of the Court 20-12463
stated that Lewis was unprofessional and yelled at Davis when Da-
vis told Lewis to use the white board to record an absence.
On November 30, 2016, and January 5, 2017, a medical ad-
ministrative assistant emailed Davis, telling her that several pa-
tients had not been placed on the appropriate tracker. On January
5, 2017, Davis forwarded an email from a medical administrative
assistant about patients not being place on the appropriate tracker
to Lewis and told her to follow up on the matter. On January 10,
Lewis replied that she was confused and that Davis was “being ac-
cusatory toward” her. Lewis carbon copied Alan Cooper, her un-
ion representative, on the email. The email chain contained pa-
tient information.
On January 31, 2017, Humphries, a white male over the age
of forty and the HIPAA privacy officer, emailed Lewis and stated
the following. Lewis had sent Cooper three emails that contained
patient PII and PHI, which was a violation because Cooper did not
have a valid reason to receive the information and the information
was not sufficiently redacted. He requested that, if she needed to
send the representative PII or PHI, she first clear it through him or
someone on the legal team. He asked her to “reply to this email
indicating that [she had] read and [understood] the information and
instructions provided and [would] comply with this guidance.”
Lewis responded, stating that she would “continue as always” to
abide by HIPAA and privacy rules. On February 1, Humphries
emailed Lewis, stating that her use of “as always” was concerning
and made her response insufficient. He gave her exact language to
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20-12463 Opinion of the Court 13
use and told her to respond by close of business. On February 14,
Lewis responded, explaining that she had been on leave. She then
stated: “As requested your reply statement, I need you to state ‘I
will not transmit or release Protected Health Information (PHI)
outside of the covered entity (96 MDG) without approval from 96
MDG HIPAA Privacy Officer or Medical Law Consultant (MLC)
Office.’”
In his declaration, Humphries stated the following. He
learned of Lewis’s race on January 24, 2017, did not know her age,
was not aware of her prior EEO activity, and learned of her current
EEO activity on February 27, 2017. On January 10, Lewis sent two
emails to the union that contained the same four patients’ PHI. On
January 20, she sent another email with an attachment that had
PHI and PII—the last four digits of a Social Security Number. The
union representatives did not have a need to know this infor-
mation, so Lewis’s email violated HIPAA and Air Force regula-
tions. When Humphries attempted to speak to Lewis about the
matter on January 24, she requested that he instead send her an
email. After consulting with Alder, Humphries decided that
Lewis’s January 31 response was not clear enough, so he sent her
another email on February 1 that contained specific language that
she needed to use. Humphries sent the email, which told Lewis to
respond by the close of business, at 11:33 a.m. and received a read
receipt that same day. When she did not do so, Alder suspended
her access to PHI and PII on February 2 until she provided the sat-
isfactory response. Lewis responded on February 14, which
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14 Opinion of the Court 20-12463
Humphries and other officials deemed to still be unsatisfactory.
Humphries noted that the original email from Davis was not en-
crypted, which was in error, and Davis received remedial training.
By sending unencrypted information to Lewis, who had a need to
know, Davis’s breach was less serious than Lewis’s, who sent PHI
to someone without a need to know. Generally, Eglin would not
suspend PHI/PII access for someone who committed a violation
like Davis’s. And Humphries explained that if Lewis had provided
a satisfactory email response, her access would not have been sus-
pended.
In a February 9, 2017, memo, Alder, a white male over the
age of forty, suspended Lewis’s access rights because of her prior
breach and her failure to respond to Humphries’s February 1 email.
In his declaration, Alder stated the following. He knew Lewis’s
race, did not know her age, was unaware of her prior EEO activity,
and learned of her current EEO activity in March 2016. After con-
sulting with Humphries and reading Lewis’s email response, he did
not feel that Lewis understood that her email to the union violated
HIPAA or that she would not do so again. In deciding to suspend
her access, he did not consider her race, age, or protected activity.
Alder met with others, including Super, regarding Lewis’s actions
and decided that her conduct would likely result in increased pa-
tient risk. Super then decided to remove Lewis from patient care
pending a quality assurance investigation. Because of her suspen-
sion and her removal from patient care, Lewis was temporarily re-
assigned so that she could continue to work elsewhere on the base.
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20-12463 Opinion of the Court 15
And, in his deposition, Alder stated that Lewis’s response was un-
professional and unsatisfactory and that she could have returned to
radiology had she passed the quality assurance investigation.
According to a February 14, 2017, memo prepared by Super,
Lewis was removed from patient care because she had refused to
participate in scheduled procedures, violated patient privacy, and
failed to adequately assure her supervisors that she would not vio-
late patient privacy again. Lewis was informed that the Air Force
would conduct a quality assurance investigation. In his deposition,
Super stated that he gathered the information in his memo from
others in the radiology department but could not remember spe-
cifically to whom he spoke. In his declaration, Super, a white,
forty-year-old male and the manager for diagnostic imaging, stated
the following. He did not know Lewis’s age, only learned of her
race when they met on February 9, did not know of her prior EEO
activity, and learned of her current EEO activity when he was con-
tacted for the investigation. When he told her of the removal de-
cision, she left and would not let him explain the decision. Super
had not moved any other civilian employee for violating patient
privacy in the past two years.
In a March 13, 2017, memo, Ives, a white male over the age
of forty and Lewis’s fourth-level supervisor, affirmed Lewis’s ten-
day suspension without pay. Ives explained that her October 26
outburst, refusal to perform an assigned procedure, and insolence
toward her supervisor were serious actions that warranted disci-
pline. Regarding the procedure, Ives noted that Lewis’s
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16 Opinion of the Court 20-12463
performance evaluation never stated that she could not perform
safe medical care. Ives further explained that, by refusing to per-
form the procedure, she failed a basic job duty. Ives noted that no
other employee under his supervision had exhibited conduct like
Lewis’s.
In his declaration, Ives stated the following. He knew
Lewis’s race but not her age, was unaware of her prior EEO activ-
ity, and became aware of her current complaint on March 20, 2017,
when he was contacted by the investigator. Regarding the assign-
ment of Davis as Lewis’s supervisor, Ives made the decision after
consulting with Person and Thomas. Lewis never objected to Ives
regarding Davis’s assignment, and Davis was assigned because she
was the NCOIC of mammography. Regarding the suspension, he
did not personally witness the underlying events and relied on the
notice of proposed suspension, Lewis’s response, and other sup-
porting evidence. He received guidance from human resources,
which provided him with a template of factors to consider when
imposing discipline. Ives relied on the “ample evidence” against
Lewis when suspending her and did not rely on her race, age, or
protected activity.
The quality assurance investigation into Lewis was com-
pleted on April 25, 2017, and Christina Haupt summarized the re-
sults in a memo prepared for Super, which stated the following.
Lewis was the only person available to perform the stereotactic
procedure on November 23, so when she refused to perform, the
procedure was cancelled. Lewis previously received training for
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20-12463 Opinion of the Court 17
this procedure on April 14, 2016. On January 31, 2017, Lewis was
assigned to perform another stereotactic procedure, along with
Jennifer Newland. Lewis did not assist, explaining to Davis that she
believed that the department’s protocol regarding the number of
required technologists had changed. Davis explained that the pol-
icy had not changed, with two technologists being preferred. On
several occasions, Lewis was asked questions during her job by the
radiologists but did not answer. Lewis also had previously walked
out of a patient exam room, refused to complete an examination of
another patient, and told another patient to Google any questions
that she had. The memo also stated that the Food and Drug Ad-
ministration (“FDA”) requires certain documents, and when Davis
requested them from Lewis, Lewis replied that Davis already had
the documents even though they were not in Davis’s binder. In
May 2016, the FDA cited the department because Lewis was delin-
quent in her continuing education. Lewis was a steward for her
union, and because of her duties, she saw approximately 1,000
fewer patients than the other technologists from April 2015 to
March 2017. She also had refused to help train new technologists,
had not performed administrative duties, and had failed to update
the patient tracker to timely notify patients. Other employees de-
scribed being around Lewis as “tense, hostile and toxic.”
Haupt was unable to speak with Lewis during the investiga-
tion, as when Haupt went to do so, Lewis said that “she would let
[Haupt] know if a Union Representative would be able to meet”
for the interview. Haupt concluded that Lewis should be removed
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18 Opinion of the Court 20-12463
from patient care because she was “careless” and had refused to
perform required job duties.
A two-member peer review panel reviewed Haupt’s memo,
and in a May 24, 2017, memo, found that Lewis was unethical, was
unprofessional, and had failed to perform all assigned duties. It
agreed with the decision to remove Lewis from patient care be-
cause she “pose[d] an unconscionable threat to patient safety” and
was not following relevant medical guidelines. In a June 27, 2017,
memo, Super told Lewis that the panel had affirmed the decision
to permanently remove her from patient care. In an August 2,
2017, memorandum, Colonel Pamela Smith, commander of the
96th Medical Group, approved the recommendation to perma-
nently remove Lewis from patient care. In her declaration, Smith
stated that, when she issued the memo, she was unaware of Lewis’s
race, age, or EEO activity, and she made the decision to remove
Lewis from patient care based on Haupt’s report and the peer re-
view panel’s decision.
In response to the Air Force’s motion for summary judg-
ment, Lewis submitted her own affidavit and deposition, personnel
records, emails, the labor agreement between the union and Eglin,
and depositions from other Eglin employees. In her own deposi-
tion, Lewis stated the following. While working in the Air Force,
Lewis was the oldest employee and only black employee in mam-
mography. She was currently a Naval employee in Japan but
planned to return to the Air Force when she left to regain the same
job as a mammographer. Since starting in Japan, she had not been
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20-12463 Opinion of the Court 19
disciplined or admonished and received excellent performance
evaluations. Before Davis became her supervisor, Lewis had re-
ceived awards for being the civilian of the squadron in 2014 and
2015. But in May 2016, Lewis received a negative performance
evaluation from Gladle that was based on comments from Davis.
In July 2016, Lewis received a poor evaluation from Gladle, but it
was based on comments from Davis. And once Davis became her
supervisor, Lewis received poor evaluations.
Lewis contacted EEO about a December 15, 2015, meeting
of the radiology department during which she was labeled as a
“problem child” and Thomas said that nobody liked her—Lewis
believed this was said because of her age and race. In April 2016,
Davis yelled at Lewis and was in Lewis’s personal space. Davis’s
treatment and harassment caused Lewis to seek medical treatment
from her primary care doctor. Lewis denied ever being belligerent
to Davis. Davis once told Lewis that “[her] people speak in a rude
tone.” Davis also frequently belittled Lewis, both in private and
around others. Neither Thomas, Person, nor Ives took steps to
stop Davis’s behavior. After Lewis filed a union grievance against
Davis, Gladle gave Lewis time to meet with the union on July 8,
2016. While Lewis was at that meeting, she received a call from
Person, who said that Davis had complained that she did not know
where Lewis was. After Lewis said that she was at a meeting re-
garding a union grievance about Davis, Person informed Lewis
that he planned to make Davis her supervisor.
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20 Opinion of the Court 20-12463
Lewis stated that the white board was not mandatory for her
to use until September 2016 and that she probably did not use the
white board on July 8 because it was not mandatory. Lewis was
the only civilian employee required to use the white board. She
received a department-wide email from Davis that instructed em-
ployees to use the white board. Regarding the August 30, 2016,
meeting, Lewis did not recall being rude to Davis but denied storm-
ing out of Davis’s office. Regarding the October 26 incident where
Lewis allegedly yelled at Davis, Lewis stated that Air Force regula-
tions required her to get her supervisor to sign an official form be-
fore taking union time, so the white board was insufficient. Lewis
admitted that she did not use the white board to record her Octo-
ber 26 time off. Regarding the October 2016 proposed reprimand,
Lewis denied being rude, argumentative, and disrespectful toward
Davis. Lewis believed that Davis influenced other decisionmakers
into imposing the discipline that Davis was not directly responsible
for. Regarding the November 2016 procedure, she denied having
refused to perform. She admitted that performing the procedure
was part of her job duties, and Davis had authority to schedule
Lewis to perform. Lewis admitted to not performing the proce-
dure. But she was concerned about her evaluation and asked Davis
for a performance plan or for assistance with the procedure.
Lewis knew of the Air Force patient information policies and
of federal privacy laws. Because of her EEO activity, she emailed
every communication that she had with Davis to her union repre-
sentative. Lewis believed that the union representative had a need
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20-12463 Opinion of the Court 21
to know the patient information because of the ongoing EEO case,
but she could not identity a medical need. She claimed that Davis
sent Lewis an unencrypted email with patient information, and
Lewis encrypted it, replied to Davis, and carbon copied her union
representative.
Humphries told Lewis to complete remedial privacy train-
ing, which Lewis did not believe was because of her race or age.
When emailing Humphries, she admitted to saying that she would
continue “as always” to follow privacy rules, and she was told that
this response was insufficient. She recalled receiving the response
from February 1, 2017, but was unsure if she had sent a read receipt
or if she read it before leaving work. She learned that her infor-
mation-access rights were suspended when she returned. On Feb-
ruary 14, 2017, Lewis was removed from patient care pending the
quality assurance investigation, which recommended that she stay
removed. As a result of her removal, her pay was not reduced, but
her licensure was at risk because she was not able to perform
enough patient exams. Lewis stated that the peer review process
did not involve interviewing her. She applied for the Japan job be-
cause she was removed as a mammographer at Eglin and wanted
to maintain her licensure.
Lewis also stated the following in her affidavit. In April
2016, Davis asked Lewis to verify certain documentation in prepa-
ration of an FDA audit. When Lewis replied that she could not
verify the records because she had not performed the tests, Davis
replied that she was trying to “save [Lewis’s] job,” which Lewis
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22 Opinion of the Court 20-12463
interpreted as a threat. Lewis filed a union grievance and an EEO
complaint, alleging that Davis had created a hostile work environ-
ment. When Lewis used sick leave to visit her doctor, Davis de-
manded that Lewis file a doctor’s note, which other employees
were not required to do. The first oral admonishment Lewis re-
ceived was before the white board was mandatory for union em-
ployees. Although Davis claimed that Lewis was disrespectful on
August 30, 2016, Lewis disputed this characterization, despite fac-
ing “abusive diatribes” from Davis.
Although Lewis was told that she could not combine fifteen-
minute breaks with her thirty-minute lunch and take any fifteen-
minute breaks, her younger, white coworkers took breaks. In Oc-
tober 2016, Davis gave notice of a proposed reprimand, which was
duplicative of the discipline from August. No other employee was
disciplined for failing to use the white board. Lewis filed her formal
EEO complaint on October 21, 2016. In her October 31 perfor-
mance evaluation, Davis failed to explain to Lewis why she was
rated poorly, and what duties she could still perform, and failed to
place Lewis on a performance improvement plan. Because of her
poor evaluation, Lewis asked for clarification about the November
23 procedure, but she never refused to perform. On December 16,
Thomas stated that Lewis could perform any duty within her job
description. Lewis further stated that the notice of proposed sus-
pension was untimely, as more than forty-five days had passed
since the relevant event.
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20-12463 Opinion of the Court 23
When Humphries sent his second email about HIPAA on
February 1, Lewis was away for training, and when she returned
on February 14, she learned that her access to patient information
had been suspended. Although she complied with Humphries’
email and completed remedial HIPAA training, her access was not
restored. When she met with Ives on February 14, Ives laughed at
her allegations, and Lewis was not interviewed any further. The
quality assurance investigation involved accusations that Lewis
was never informed about nor punished for. The investigator also
did not cooperate with Lewis’s request to schedule an interview
with a union representative. Lewis never refused to answer ques-
tions from other employees, cooperate with a pending investiga-
tion, perform a procedure, or intentionally act insubordinately.
Lewis was replaced by Newland, who was younger and white.
Cooper, a union representative for Eglin, stated the follow-
ing in his deposition. The white board was not originally manda-
tory for union employees like Lewis and did not become manda-
tory until September 2016. He participated in several meetings
with Lewis and Davis, and Lewis was never insubordinate. But, in
one meeting between the two, Davis was loud, belligerent, and
combative. The October 2016 feedback Lewis received was issued
when Davis had little experience with mammography, and Davis
was argumentative toward Lewis once Davis arrived. This feed-
back was much lower than Lewis’s previous feedback. Cooper did
not believe that Lewis violated HIPAA because she was communi-
cating with him as part of an internal grievance and the email was
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24 Opinion of the Court 20-12463
encrypted. While Lewis was meeting with Cooper on July 8, 2016,
Person called her, during which Cooper described Person as loud
and rude. Cooper told Person that Lewis was not obligated to tell
Davis that she was leaving because Lewis had been permitted to
meet with Cooper at that time.
Lewis also raised a portion of Person’s deposition, in which
he stated that there was no official policy requiring that an enlisted
individual to be in charge of the department. Person also stated
that Davis received verbal counseling because she invaded Lewis’s
personal space.
Newland, a mammographer at Elgin, stated the following in
her deposition. Davis was Newland’s supervisor while Newland
was a contractor and at the beginning of her time as a full em-
ployee. And Newland was hired for Lewis’s old position. In her
deposition, Diana Cobo, a contract mammographer, stated that
she was unaware of any difficulties between Davis and Lewis and
never saw Lewis do anything below the standard of care for the
job.
The district court granted the Air Force’s motion for sum-
mary judgment on all of Lewis’s claims. As to Lewis’s race and age
discrimination claims, the district court found that Lewis had not
established a prima facie case because she failed to demonstrate ev-
idence of a comparator employee who was treated differently. As
to her retaliation claim, the district court found Lewis’s claim failed
because she had not established but-for causation. The court also
found that the oral admonishment and proposed reprimand against
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20-12463 Opinion of the Court 25
Lewis were not actionable as to her retaliation claim. This appeal
ensued.
II.
Our review of a district court’s grant of summary judgment
is de novo. Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th
Cir. 2012). Summary judgment is appropriate if there is no genuine
issue of material fact and the movant is entitled to judgment as a
matter of law. Id. (citing Fed. R. Civ. P. 56(a)). We view the record
and draw all justifiable inferences in favor of the nonmoving party,
but “inferences based on speculation are not reasonable.” Id.
at 1301 (quoting Marshall v. City of Cape Coral, 797 F.2d 1555,
1559 (11th Cir. 1986)). We will not make credibility determinations
or weigh the parties’ evidence at the summary judgment stage.
Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1311 (11th
Cir. 2001).
III.
We first address Lewis’s race and age discrimination claims.
Title VII makes it unlawful for the Air Force to discriminate against
an employee based on her race. See 42 U.S.C. § 2000e-16(a) (apply-
ing Title VII to the “military departments” as defined in 5 U.S.C.
§ 102); 5 U.S.C. § 102 (providing that the Department of the Air
Force is a military department). Section 2000e-16 gives federal em-
ployees the same protections that Title VII grants to private em-
ployees. See Brown v. GSA, 425 U.S. 820, 829–30 (1976); Canino v.
U.S. EEOC, 707 F.2d 468, 472 (11th Cir. 1983). The ADEA, in turn,
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26 Opinion of the Court 20-12463
states that “[a]ll personnel actions affecting employees . . . who are
at least 40 years of age . . . shall be made free from any discrimina-
tion based on age” and similarly applies to military departments, as
defined by § 102, including the Air Force. See 29 U.S.C. § 633a(a);
5 U.S.C. § 102.
An employee can prove intentional discrimination using di-
rect, circumstantial, or statistical evidence. Alvarez v. Royal Atl.
Devs., 610 F.3d 1253, 1264 (11th Cir. 2010). Before the Supreme
Court’s decision in Babb v. Wilkie (“Babb I”), 140 S. Ct. 1168 (2020),
we had held that an employee may rely on the burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), to prove a race or age discrimination claim using
circumstantial evidence. Kelliher v. Veneman, 313 F.3d 1270, 1275
(11th Cir. 2002) (applying McDonnell Douglas to Title VII); Trask
v. Sec’y, Dep’t of Veterans Affs., 822 F.3d 1179, 1191 (11th Cir.
2016) (applying McDonnell Douglas to an ADEA claim), abrogated
by Babb I, 140 S. Ct. 1168. Under McDonnell Douglas, the em-
ployee must first
establish[] a prima facie case of discrimination by
showing (1) that she belongs to a protected class,
(2) that she was subjected to an adverse employment
action, (3) that she was qualified to perform the job in
question, and (4) that her employer treated “similarly
situated” employees outside her class more favorably.
Lewis v. City of Union City (“Lewis I”), 918 F.3d 1213, 1220–21
(11th Cir. 2019) (en banc). If an employee makes her prima facie
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20-12463 Opinion of the Court 27
case, then the employer must show that there was a “legitimate,
nondiscriminatory reason for its actions.” Id. at 1221. Should the
employer carry its burden, the employee must prove that the em-
ployer’s proffered reason was merely a pretext for unlawful dis-
crimination. Id.
For a plaintiff to establish the fourth element of a prima facie
case of discrimination—commonly known as the “comparator”
analysis—the plaintiff must proffer a comparator employee that is
“similarly situated in all material respects” to the plaintiff. Id. at
1226. This determination relies on the individuals’ “substantive
likenesses,” and a comparator may be sufficiently similar if she has
“engaged in the same basic conduct (or misconduct) as the plain-
tiff,” was subject to the same employment policies as the plaintiff,
had the same supervisor, and “share[d] the plaintiff’s employment
or disciplinary history.” Id. at 1227–28.
An employee’s failure to provide a comparator, however,
does not automatically doom her claim, as she can “survive sum-
mary judgment if [she] presents circumstantial evidence that cre-
ates a triable issue concerning the employer’s discriminatory in-
tent.” Lewis v. City of Union City (“Lewis II”), 934 F.3d 1169, 1185
(11th Cir. 2019) (quoting Smith v. Lockheed-Martin Corp. 644 F.3d
1321, 1328 (11th Cir. 2011)). This occurs when the employee “pre-
sents ‘a convincing mosaic of circumstantial evidence that would
allow a jury to infer intentional discrimination by the deci-
sionmaker.’” Smith, 644 F.3d at 1328 (11th Cir. 2011) (footnote
omitted) (quoting Silverman v. Bd. of Educ., 637 F.3d 729, 734 (7th
USCA11 Case: 20-12463 Date Filed: 06/30/2022 Page: 28 of 34
28 Opinion of the Court 20-12463
Cir. 2011)). Such a mosaic may exist when the evidence shows
“(1) suspicious timing, ambiguous statements . . . , and other bits
and pieces from which an inference of discriminatory intent might
be drawn, (2) systematically better treatment of similarly situated
employees, and (3) that the employer’s justification is pretextual.”
Lewis II, 934 F.3d at 1185 (alteration in original) (quoting Silver-
man, 637 F.3d at 733–34).
McDonnell Douglas applies when an employee brings a
“single-motive claim,” in which she must show the discriminatory
reason was “the true reason for the adverse action.” Quigg v.
Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1235 (11th Cir. 2016). An
employee who brings a “mixed-motive claim” may instead rely on
the more lenient motivating-factor test, in which she must only
show that “illegal bias . . . ‘was a motivating factor’ for an adverse
employment action, ‘even though other factors also motivated’ the
action.” Id. (quoting 42 U.S.C. § 2002e-2(m)). These two tests thus
“serve as alternative causation standards for proving discrimina-
tion.” Id. at 1235 n.4; see also Babb v. Sec’y, Dep’t of Veterans Affs.
(“Babb II”), 992 F.3d 1193, 1204–05 (11th Cir. 2021) (recognizing
that McDonnell Douglas should not be used where the statute does
not require but-for causation).
But recently, in Babb I, the Supreme Court determined that
a district court had erred in evaluating an ADEA claim under
McDonnell Douglas because § 633a(a)’s statutory language only re-
quires that “age must be the but-for cause of differential treatment,
not that age must be a but-for cause of the ultimate decision.” 140
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20-12463 Opinion of the Court 29
S. Ct. at 1171–74 (emphasis in original); see § 633a(a). The Court
also explained that but-for causation remains relevant for an em-
ployee’s remedies, as employees “who demonstrate only that they
were subjected to unequal consideration cannot obtain reinstate-
ment, backpay, compensatory damages, or other forms of relief re-
lated to the end result of an employment decision.” See Babb I, 140
S. Ct. at 1177. The Supreme Court then remanded the case to us
for further proceedings. Id. at 1178.
On remand in Babb II, we recognized that, because § 2000e-
16(a) contained the same language as § 633a(a), the Supreme
Court’s analysis from Babb I controlled. See 992 F.3d at 1204 (“The
question is whether Babb’s analysis of the ADEA ‘undermined
[Trask’s Title VII holding] to the point of abrogation.’ Because
Congress chose to enact twin statutory provisions, the answer is
yes.” (quoting United States v. Archer, 531 F.3d 1347, 1352 (11th
Cir. 2008))). Therefore, we concluded § 2000e-16(a) did not require
but-for causation, at least in relation to retaliation claims. Id. at
1204–05 (“If a decision is not ‘made free from any discrimination
based on’ that which § 2000e-16(a) protects, then an employer may
be held liable for that discrimination regardless of whether that dis-
crimination shifted the ultimate outcome.”).
Turning to this case, as an initial matter, we address Lewis’s
federal race and age discrimination claims under the comparator
analysis set forth in Lewis I. Babb I and Babb II foreclosed using
the full McDonnell Douglas framework regarding ADEA claims
and Title VII retaliation claims as to federal-sector employees, but
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30 Opinion of the Court 20-12463
those two opinions concerned the second and third steps of that
framework—that the defendant to articulate “a legitimate, nondis-
criminatory reason for its actions” and, then, for the plaintiff to
demonstrate that the “proffered reason was merely a pretext for
unlawful discrimination,” see Lewis I, 918 F.3d at 1221—which es-
tablished a “but-for causation” requirement that has now been dis-
approved by the Supreme Court and this Court. But a federal sec-
tor employee alleging Title VII and ADEA claims must still estab-
lish a prima facie case that a decision was not “made free from any
discrimination,” and neither Babb I nor Babb II suggested that the
comparator analysis in Lewis I is inappropriate under the new
standards. See Babb I, 140 S. Ct. at 1171–76; Babb II, 992 F.3d at
1198–1209. And, as this Court held in Smith, a “failure to produce
a comparator does not necessarily doom the plaintiff’s case,” as a
plaintiff will survive summary judgment if she “presents circum-
stantial evidence that creates a triable issue concerning the em-
ployer’s discriminatory intent,” i.e., “a convincing mosaic of cir-
cumstantial evidence.” 644 F.3d at 1328 (quoting Silverman, 637
F.3d at 734).
Because the district court here found that Lewis had failed
to establish a prima facie case as to her race and age discrimination
claims on the basis that she had not identified a comparator, we
will apply Lewis I’s comparator analysis to this appeal.
After reviewing the extensive record evidence, we conclude
that the district court did not err in determining that Lewis had
failed to provide evidence of a comparator employee—one
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20-12463 Opinion of the Court 31
similarly situated in all material respects—who was treated differ-
ently. As explained above, Lewis had the burden to show that the
Air Force treated similarly situated employees differently. The rec-
ord evidence, however, showed that Lewis was the only civilian
employee in mammography and that no other employee engaged
in similar misconduct, such as (1) failing to use the office’s white
board for signing in and out; (2) violating the Air Force’s privacy
policies including HIPAA by sending patient information to non-
medical personnel who lacked a need to know the information; or
(3) failing to perform a scheduled medical procedure.
While Lewis offered two purported comparators—Davis
and Newland—we conclude that these comparators are insuffi-
cient to establish a prima facie case for her discrimination claims.
Turning to Davis, the record evidence shows that Davis sent an
email to Lewis with patient information that was not encrypted,
she did not send the patient information to non-medical personnel.
In other words, Davis sent patient information to a person within
the department—Lewis—with a need to know that information,
while Lewis sent patient information to Cooper, her union repre-
sentative, who did not possess a medical need to know that infor-
mation. As Humphries explained, the degree of Davis’s violation
was less serious, and Davis still had to complete remedial training
for that violation. By contrast, Lewis did not complete remedial
training before her access was suspended nor respond to Hum-
phries’s February 1 email by the close of business, and Humphries
determined Lewis’s email responses to him about her
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32 Opinion of the Court 20-12463
understanding of the privacy violations to be unsatisfactory. Fur-
thermore, Davis did not engage in any of the other conduct that
was the basis for Lewis’s suspension and removal. Therefore, we
conclude that the district court did not err in determining Davis
was not a sufficient comparator, as Davis was not similarly situated
in all material respects to Lewis.
Turning to Newland, we also conclude that Newland is sim-
ilarly an insufficient comparator. Indeed, there is nothing in the
record suggesting that Newland engaged in the same basic miscon-
duct or shared the same disciplinary history as Lewis. See Lewis I,
918 F.3d at 1227–28. Thus, Lewis and Newland are not similarly
situated in all material respects. And because Lewis did not offer a
comparator, Lewis failed to establish a prima facie case, and the
district court was not required to reach causation or pretext.
As for her convincing mosaic argument, we find that Lewis
has abandoned that argument by failing to raise the issue before the
district court. 1 See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d
1324, 1331 (11th Cir. 2004); FDIC v. Verex Assurance, Inc., 3 F.3d
391, 395 (11th Cir. 1993). Indeed, we have recently found a plaintiff
1 Similarly, the Air Force has abandoned its argument that Lewis did not ex-
haust her administrative remedies relating to the March 2017 suspension be-
cause it raised the argument in only one footnote. See Pinson v. JPMorgan
Chase Bank, Nat’l Ass’n, 942 F.3d 1200, 1209 n.5 (11th Cir. 2019) (“We do not
ordinarily consider arguments raised in passing in one footnote rather than the
body of the brief.”); Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681
(11th Cir. 2014).
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20-12463 Opinion of the Court 33
failed to preserve a “convincing mosaic” argument by failing to ad-
equately brief the issue below. See Bailey v. Metro Ambulance
Servs., Inc., 992 F.3d 1265, 1273–74 & n.1 (11th Cir. 2021) (deter-
mining that an employee had abandoned the claim because he only
cited the general “convincing mosaic” law but did not tie that law
into his claim).
Accordingly, we affirm the district court’s grant of summary
judgment on the race and age discrimination claims in favor of the
Air Force.
IV.
We now turn to Lewis’s retaliation claim. Title VII states
that “[a]ll personnel actions . . . shall be made free from any dis-
crimination. § 2000e-16(a); Porter v. Adams, 639 F.2d 273, 277–78
(5th Cir. Unit A Mar. 1981) 2 (interpreting § 2000e-16(a) to prohibit
retaliation). Until recently, we applied the McDonnell Douglas
framework to a Title VII retaliation claim. See, e.g., Trask, 822 F.3d
at 1193–94; Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1310
(11th Cir. 2016).
But we recently determined that the Supreme Court’s deci-
sion in Babb I “undermined Trask to the point of abrogation and
that the standard that the Court articulated there now controls
2 In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir.1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit,
including decisions by either administrative unit, handed down prior to Octo-
ber 1, 1981.
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34 Opinion of the Court 20-12463
cases arising under Title VII’s nearly identical text.” Babb II, 992
F.3d at 1196. Accordingly, we determined that the McDonnell
Douglas framework as to causation no longer applied to a federal
Title VII retaliation claim. See id. at 1203–05 (“So, even when there
are non-pretextual reasons for an adverse employment decision—
as the government says there are here—the presence of those rea-
sons doesn’t cancel out the presence, and the taint, of discrimina-
tory considerations.”). As such, we vacated the district court’s
grant of summary judgment and remanded for further proceed-
ings. Id. at 1205.
Here, neither the parties nor the district court had the bene-
fit of our decision in Babb II, and the district court only analyzed
Lewis’s retaliation claim under the McDonnell Douglas causation
framework. Accordingly, we vacate the district court’s grant of
summary judgment on Lewis’s retaliation claim and remand so
that the district court may consider the claim based on the princi-
ples we set forth in Babb II.
V.
For the foregoing reasons, we affirm the district court’s
grant of summary judgment on Lewis’s race and age discrimination
claims. But we vacate its grant of summary judgment on Lewis’s
retaliation claim and remand for further proceedings consistent
with our decision in Babb II.
AFFIRMED IN PART, VACATED AND REMANDED IN
PART.