Gwendolyn Campbell v. Wood Environment & Infrastructure Solutions, Inc.

USCA11 Case: 22-11472 Document: 20-1 Date Filed: 04/13/2023 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11472
Non-Argument Calendar
____________________
GWENDOLYN CAMPBELL,
Plaintiff-Appellant,
versus
WOOD ENVIRONMENT & INFRASTRUCTURE SOLUTIONS,
INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-02365-JPB
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2 Opinion of the Court 22-11472
____________________
Before WILSON, JILL PRYOR, and LUCK, Circuit Judges.
PER CURIAM:
Gwendolyn Campbell appeals the district court order grant-
ing summary judgment to her employer, Wood Environment &
Infrastructure Solutions, Inc., on her race discrimination and retal-
iation claims. After careful consideration, we affirm.
I.
Campbell, a Black woman, worked for Wood for several
years as a project coordinator. 1 During her employment, Campbell
complained multiple times to the company that her supervisor was
discriminating against her based on her race. According to Camp-
bell, after she made these complaints, the company retaliated
against her.
In July 2019, Wood allowed Campbell to transfer to a differ-
ent position in which she would be working on a different project,
in a different office, with a new supervisor. After approximately
five months in the new position, Campbell’s new supervisor placed
her on a performance improvement plan. The plan stated that
Campbell was prohibited from making derogatory statements
1 Because we write only for the parties, who are already familiar with the facts
and proceedings in the case, we include only what is necessary to explain our
decision.
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22-11472 Opinion of the Court 3
about any person associated with any project she was working on
and required her to follow a chain of command regarding client
interactions. It also directed Campbell to certify that she had re-
viewed the company’s code of conduct and harassment-free work-
place procedures, as well a website that included information about
conversational leadership. The plan warned Campbell that if she
failed to comply with these requirements, she could be “subject to
disciplinary action, up to and including termination.” Doc. 29-5 at
4. 2 About two months later, Wood concluded that Campbell had
failed to adhere to the requirements of the plan and terminated her
employment.
Campbell then sued Wood for race discrimination and retal-
iation. The district court granted summary judgment to Wood.
This is Campbell’s appeal.
II.
We review de novo a district court’s grant of summary judg-
ment, viewing all evidence and drawing all reasonable inferences
in favor of the nonmoving party. Hurlbert v. St. Mary’s Health
Care Sys., Inc., 439 F.3d 1286, 1293 (11th Cir. 2006). Summary judg-
ment is appropriate only “if the movant shows that there is no gen-
uine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
2 “Doc.” numbers refer to the district court’s docket entries.
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4 Opinion of the Court 22-11472
III.
Campbell argues on appeal that the district court erred in
granting summary judgment to Wood on her race discrimination
and retaliation claims. We address each claim in turn.
A.
For the race discrimination claim, Campbell argues that she
introduced sufficient evidence that Wood engaged in intentional
discrimination. She argues that a reasonable jury could conclude
that Wood engaged in intentional discrimination either based on
the burden shifting-framework established by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) or be-
cause she established a convincing mosaic of circumstantial evi-
dence.
We begin with Campbell’s argument that she satisfied the
McDonnell-Douglas framework. Under this framework, a plaintiff
must first establish a prima facie case. See Lewis v. City of Union
City, 918 F.3d 1213, 1220–21 (11th Cir. 2019) (en banc). To state a
prima facie case for discrimination, a plaintiff must show that
(1) “she belong[ed] to a protected class,” (2) “she was subjected to
an adverse employment action,” (3) “she was qualified to perform
the job in question,” and (4) the “employer treated similarly situ-
ated employees outside her class more favorably.” Id. (internal
quotation marks omitted). To meet the “similarly situated” re-
quirement, the plaintiff and any comparator she presents must be
similarly situated “in all material respects.” Id. at 1226 (internal
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22-11472 Opinion of the Court 5
quotation marks omitted). “Ordinarily,” a similarly situated com-
parator “will have engaged in the same basic conduct (or miscon-
duct) as the plaintiff” and “will share the plaintiff’s employment or
disciplinary history.” Id. at 1227–28.
If the plaintiff establishes a prima facie case, the burden then
shifts to the defendant to articulate a legitimate, non-discrimina-
tory basis for its employment action. See Tex. Dep’t of Cmty. Affs.
v. Burdine, 450 U.S. 248, 254 (1981). If the defendant meets this bur-
den, the plaintiff has the opportunity to show by a preponderance
of the evidence that the defendant’s proffered reasons “were not its
true reasons, but were a pretext for discrimination.” Id. at 253.
In applying the McDonnell-Douglas framework, the district
court concluded that Wood was entitled to summary for two inde-
pendent reasons: (1) Campbell failed to establish a prima facie case
because she identified no similarly situated employee who was
treated more favorably, and (2) she failed to establish pretext. Be-
cause the district court provided two independent reasons support-
ing summary judgment on this claim, to prevail on appeal Camp-
bell must show that each stated ground was incorrect. See Sapuppo
v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014).
The district court’s determination that Wood was entitled
to summary judgment under the McDonnell-Douglas framework
is due to be affirmed because Campbell failed to challenge on ap-
peal the district court’s determination that she failed to establish a
prima facie case. On appeal, Campbell argues that she offered suf-
ficient evidence to establish that Wood’s proffered
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6 Opinion of the Court 22-11472
nondiscriminatory reason for her termination was pretextual. But
she never addressed the district court’s alternative, independent de-
termination that she failed to establish a prima facie case because
she identified no similarly situated comparator. At best, Campbell
made a brief, perfunctory reference to the issue in her opening brief
when she stated that she was “held to different standards than her
Caucasian colleagues.” Appellant’s Br. at 9. But a party forfeits an
issue when she makes only “passing references to it or raises it in a
perfunctory manner without supporting arguments and author-
ity.” Sapuppo, 739 F.3d at 681; see United States v. Campbell,
26 F.4th 860, 873–74 (11th Cir. 2022) (en banc).
Next, we consider Campbell’s argument that the district
court erred in granting summary judgment on her race discrimina-
tion claim because she established a convincing mosaic of circum-
stantial evidence. Even when a plaintiff cannot satisfy the McDon-
nell-Douglas framework, she still may “survive summary judg-
ment by presenting circumstantial evidence that creates a triable
issue concerning the employer’s discriminatory intent.” Jenkins v.
Nell, 26 F.4th 1243, 1250 (11th Cir. 2022) (internal quotation marks
omitted). “A triable issue of fact exists if the record, viewed in a
light most favorable to the plaintiff, presents a convincing mosaic
of circumstantial evidence that would allow a jury to infer inten-
tional discrimination by the decisionmaker.” Id. (internal quotation
marks omitted). “A plaintiff may establish a convincing mosaic by
pointing to evidence that demonstrates, among other things, (1)
suspicious timing, ambiguous statements, or other information
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22-11472 Opinion of the Court 7
from which discriminatory intent may be inferred, (2) systemati-
cally better treatment of similarly situated employees, and (3) pre-
text.” Id. (internal quotation marks omitted).
Campbell says that even if she did not meet her burden un-
der the McDonnell-Douglas framework, she presented sufficient
evidence to establish a convincing mosaic of discrimination. But
like the McDonnell-Douglas issue, she failed to raise this issue ade-
quately on appeal. In her opening brief, she devoted a total of two
paragraphs to the convincing-mosaic issue. Her argument in those
two paragraphs boils down to the conclusory statement that there
was evidence of a convincing mosaic because she was “held to dif-
ferent standards than her Caucasian colleagues,” she was subjected
to “disparate treatment,” and Wood failed “to investigate or other-
wise remedy [her] ongoing complaints of race-based discrimina-
tion, retaliation, and a hostile work environment.” Appellant’s Br.
at 9. She included no citations to the record to support her asser-
tions about the evidence and cited no case law or other authority
to support her legal position that the evidence in this case was suf-
ficient to establish a convincing mosaic. Given the perfunctory way
in which Campbell’s opening brief addressed whether there was a
convincing mosaic, we conclude that she has forfeited the issue.
See Sapuppo, 739 F.3d at 681.
We acknowledge that Campbell did address the convincing
mosaic issue in her reply brief when she identified both evidence
and case law to support her position. But her attempt to develop
this argument in her reply brief “come[s] too late.” Id. at 683.
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8 Opinion of the Court 22-11472
Even assuming Campbell adequately raised the convincing
mosaic issue on appeal, however, we cannot say that the district
court erred when it granted summary judgment to Wood. In her
reply brief, Campbell argued that she established a convincing mo-
saic because she submitted evidence showing suspicious timing
and that Wood’s proffered justification for her termination was
pretextual. 3 We are not persuaded.
First, she argues in her reply brief that there was evidence of
“suspicious timing” of Wood’s actions, which supports an infer-
ence that she was terminated because of her race. Reply Br. at 2.
To support her position, Campbell points to three specific incidents
involving her former supervisor. But she admits that her former
supervisor “was not involved in the decision to terminate” her em-
ployment. Id. And given the gap in time between the identified in-
cidents involving Campbell’s former supervisor and her termina-
tion by the new supervisor, these incidents do not give rise to an
inference of discrimination. Importantly, Campbell has identified
3 As we mentioned above, another relevant factor in the convincing mosaic
analysis is whether there was evidence of the “systematically better treatment
of similarly situated employees” outside the plaintiff’s protected class. Jenkins,
26 F.4th at 1250 (internal quotation marks omitted). Even assuming Campbell
argued on appeal that there was evidence that other employees outside her
protected class received better treatment, we agree with the district court that
the evidence does not show that any of these employees were sufficiently sim-
ilarly situated to Campbell.
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22-11472 Opinion of the Court 9
no evidence suggesting that her new supervisor acted with an in-
tent to discriminate against her based on her race.
Second, Campbell suggests in her reply brief that she estab-
lished a convincing mosaic because Wood’s stated reason for firing
her—her failure to adhere to the requirements outlined in her per-
formance improvement plan—was pretextual. Campbell argues
that the evidence viewed in the light most favorable to her showed
that she had not violated the terms of her performance improve-
ment plan when she spoke with a client representative about an
internal complaint Campbell had filed. Even assuming Campbell is
correct that there was evidence showing she did not violate the
plan in speaking with the client representative, the undisputed evi-
dence shows she violated the performance improvement plan in
other ways. She admitted that she violated the provisions in the
plan that required her to review the company’s code of conduct, its
harassment-free workplace procedures, and a website with infor-
mation about leadership. Given her admission that she violated the
performance improvement plan, the record is insufficient to sup-
port an inference that Wood’s stated reason for firing her—her fail-
ure to comply with the plan—was false. After fully considering the
record and viewing the evidence in a light most favorable to Camp-
bell, we conclude that she failed to establish a convincing mosaic
of circumstantial evidence that would allow a jury to infer inten-
tional discrimination. Thus, the district court did not err in granting
summary judgment to Wood on the race discrimination claim.
B.
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10 Opinion of the Court 22-11472
We now address Campbell’s retaliation claim. Campbell ar-
gues that the district court erred in granting summary judgment to
Wood because she came forward with sufficient circumstantial ev-
idence of retaliation to survive summary judgment under the
McDonnell-Douglas framework. We disagree.
To establish a prima facie case of retaliation under McDon-
nell Douglas, a plaintiff must show that (1) “she engaged in statu-
torily protected activity,” (2) “she suffered an adverse [employ-
ment] action,” and (3) “the adverse action was causally related to
the protected activity.” Patterson v. Ga. Pac., LLC, 38 F.4th 1336,
1345 (11th Cir. 2022) (internal quotation marks omitted). To
demonstrate a causal connection for purposes of the prima facie
case, the plaintiff must show that (1) the decisionmaker knew of
her protected activity and (2) the protected activity and adverse ac-
tion were not wholly unrelated. See Shannon v. Bellsouth Tele-
comms., Inc., 292 F.3d 712, 716 (11th Cir. 2002).
Campbell argues that she satisfied the causal connection re-
quirement because there was “less than six months” between when
her new supervisor learned that she had engaged in protected ac-
tivity in July 2019 and when the new supervisor placed her on a
performance improvement plan in December 2019. Reply Br. at 5.
We have explained that a plaintiff may satisfy the causal con-
nection requirement of the prima facie case “by showing close tem-
poral proximity between statutorily protected activity and the ad-
verse employment action.” Thomas v. Cooper Lighting, Inc., 506
F.3d 1361, 1364 (11th Cir. 2007). When the plaintiff lacks other
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22-11472 Opinion of the Court 11
evidence of causation, the temporal proximity must be “very
close.” Id. (internal quotation marks omitted). We have held that,
without more, a three-month gap between the plaintiff’s protected
activity and the adverse action is insufficient to establish a causal
connection. Id. Here, there was a gap of approximately five months
between the new supervisor learning of Campbell’s protected ac-
tivity and deciding to place her on the performance improvement
plan. This temporal proximity, standing alone, is insufficiently
close to satisfy the casual connection requirement. See id. Because
Campbell failed to establish a prima facie case, the district court
properly granted summary judgment to Wood on her retaliation
claim.
IV.
For the above reasons, we affirm the district court’s grant of
summary judgment.
AFFIRMED.