Georgia McCann v. Jack Tillman, et al.

Appellant Georgia McCann appeals the district court's grant of summary
judgment in her suit alleging race discrimination, retaliation, and a hostile work
environment under 42 U.S.C. §§ 1981 and 1983. We affirm.

BACKGROUND

Georgia McCann ("McCann") has been employed as a correctional officer
for the Mobile County Sheriff's Office since 1993. From 2003 until September
2005, McCann was assigned to the Metro Barracks of the Mobile County Jail, and
her chain of command included her supervisor, Corrections Lieutenant Melinda
Bounds,1 Deputy Warden David Turner, Warden Michael Haley, and Sheriff Jack
Tillman.

On June 1, 2004, McCann was on her way to work when she was notified
that her son was incarcerated in Washington County. McCann obtained
permission to use an emergency vacation day and went to the Washington County
jail still wearing her correctional officer uniform. On June 4, 2004, Sheriff Wheat
of Washington County wrote a letter to the Mobile County Sheriff's Office
complaining about McCann's irrational and disrespectful behavior towards him
and his deputies while at the Washington County jail. In July 2004, a predisciplinary
hearing panel determined McCann was guilty of conduct unbecoming
an employee in the public service, disorderly conduct, and of violating a lawful
and reasonable regulation issued in November 2003, forbidding employees to
wear their uniforms off-duty. Sheriff Tillman subsequently suspended McCann
without pay for fifteen days, with five days deferred pending six months of good
behavior. McCann appealed the decision to the Mobile County Personnel Board,
which affirmed the pre-disciplinary panel's determination finding McCann guilty
of the charges brought against her and extended her suspension to fifteen days
with none deferred.

In August 2004, McCann received an unsatisfactory service rating, due in
part to her suspension, which made her ineligible for promotion. McCann was
also prevented from working overtime due to a recent policy instituted by Bounds
forbidding disciplined officers from working overtime for ninety days after
returning to work. In January 2005, McCann filed a charge of discrimination with
the EEOC, alleging a hostile work environment. In June 2005, McCann filed suit
against Bounds, Turner, Haley, Tillman, and the Mobile County Personnel Board2
(collectively "Appellees"), alleging that she had was subjected to racial
discrimination, retaliation, and a hostile work environment in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and 42 U.S.C. §§ 1981
and 1983.

On July 6, 2006, the district court granted Bounds, Turner, Haley, and
Tillman's motion for summary judgment for all claims except for the retaliatory
failure to promote claim against Turner, Haley, Tillman, and the Mobile County
Personnel Board. McCann subsequently consented to summary judgment on this
remaining claim, advising the court that she "believe[d] that the Court erroneously
dismissed her earlier claims and wishe[d] to proceed with an appeal of that
immediately." (See Appellant's App., Tabs 80, 82.) On March 26, and April 5,
2007, the district court granted summary judgment on the retaliatory failure to
promote claim as to all defendants. (See id., Tabs 81, 83.)

JURISDICTION AND STANDARD OF REVIEW

This court has jurisdiction over a final judgment of the district court
pursuant to 28 U.S.C. § 1291.3 We review a district court's grant of summary
judgment de novo. See Jones v. Dillard's, Inc., 331 F.3d 1259, 1262 (11th Cir.
2003). "Summary judgment is appropriate ‘if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.'" Eberhardt v. Waters, 901 F.2d 1578,
1580 (11th Cir. 1990) (quoting Fed. R. Civ. P. 56(c)).

DISCUSSION

McCann alleges that she was subject to race discrimination and retaliation,
in violation of 42 U.S.C. §§ 1981 and 1983, with respect to matters of employment
discipline, compensation, a lowering of service rating, failure to promote, and
failure to reassign or transfer, and that she was subject to a hostile work
environment.

I. Discrimination

Title VII prohibits employers from discriminating "against any individual
with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or national origin." 42
U.S.C. § 2000e-2(a)(1). Where, as here, there is no direct evidence of
discrimination, a plaintiff may prove discrimination through circumstantial
evidence, using the burden-shifting framework established in McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). To establish a prima facie case for disparate
treatment, McCann must show that "(1) she is a member of a protected class; (2)
she was subjected to adverse employment action; (3) her employer treated
similarly situated [white] employees more favorably; and (4) she was qualified to
do the job." EEOC v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir.
2000). If McCann satisfies these elements, the appellees must provide a
legitimate, nondiscriminatory reason for their action. Burke-Fowler v. Orange
County, Fla., 447 F.3d 1319, 1323 (11th Cir. 2006). If this burden is met,
McCann must then prove that the appellees' reasons are a pretext for unlawful
discrimination. Id.

Only the third element is at issue here. In order to determine whether other
employees were similarly situated to McCann, we evaluate "‘whether the
employees are involved in or accused of the same or similar conduct and are
disciplined in different ways.'" Id. (quoting Maniccia v. Brown, 171 F.3d 1364,
1368 (11th Cir. 1999)). In doing so, "the quantity and quality of the comparator's
misconduct [must] be nearly identical to prevent courts from second-guessing
employers' reasonable decisions and confusing apples with oranges." Id.
(quotations omitted); see also Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d
1181, 1185 (11th Cir. 1984) ("[T]he misconduct for which [the plaintiff] was
discharged [must be] nearly identical to that engaged in by an employee outside
the protected class whom the employer retained.") (brackets and quotations
omitted).4

McCann alleges that the fifteen day suspension she received after she wore
her uniform off-duty was imposed based on race discrimination. McCann claims
she was further discriminated against in her compensation because she was not
allowed to work overtime for ninety days as a result of being suspended. Finally,
McCann alleges that she was discriminated against because her suspension
resulted in her receiving an "unsatisfactory" service rating, which disqualified her
from receiving a promotion.

The record demonstrates that McCann failed to establish a prima facie case
of discrimination for any of her claims.5 McCann identifies two comparators to
demonstrate that white employees committed similar or more serious offenses and
were not similarly disciplined. Neither of these comparators, however, are
examples of white employees who violated the uniform directive, or who similarly
abused the indicia or privileges of their office, but were not disciplined.

In June 2004, Marnita Coleman, a white inmate work supervisor, was not
suspended or formally disciplined after being convicted of disorderly conduct and
resisting arrest following a dispute with her daughter-in-law. An Internal
Affairs investigation determined that Coleman had engaged in unlawful conduct
and conduct unbecoming of an officer. McCann argues that Coleman was charged
with the same offense and that the failure to discipline Coleman is evidence of
discrimination.

As the district court correctly found, Coleman's misconduct is not "nearly
identical" to McCann's, making Coleman an improper comparator. McCann's
conduct occurred in public and while she was in uniform, while Coleman's
conduct occurred at a private residence and in plainclothes. McCann directed her
conduct at the sheriff of a neighboring county, while Coleman directed her
conduct at her daughter-in-law and "only incidentally" at the arresting deputy.
Most notably, while McCann invoked her official position in an effort to obtain a
personal goal, Coleman did not.

In May 2005, Jonathan Lindsey, a white correctional officer, made vulgar
comments and unprofessional statements to a nurse attending an inmate he was
escorting. Lindsay received a written reprimand, but was not suspended. As with
Coleman, because Lindsey's misconduct is not "nearly identical" to that of
McCann, it cannot be used as a comparator. Lindsey was on duty and therefore
was not in violation of the uniform directive. Lindsey's conduct was directed
toward a civilian and not a high-ranking officer of a neighboring county.
Furthermore, Lindsey was not advancing a private agenda in speaking up on
behalf of an inmate.

McCann's conduct is qualitatively different from that of the comparators
she provided because her conduct involved an abuse of office, while the conduct
of the comparators did not. Consequently, because McCann has not presented
proper comparators, she has failed to establish a prima facie case of discrimination
with respect to her suspension, and the burden will not be shifted to the appellees
to provide a legitimate, nondiscriminatory reason for their actions.
Finally, McCann alleges that she was discriminated against because she was
not promoted. As indicated, McCann's failure to earn a promotion is related in
part to the suspension she received, which was not an act of actionable
discrimination. Further, a prima facie case of discriminatory failure to promote
requires a showing that "other equally or less qualified employees who were not
members of the protected class were promoted." Wilson v. B/E Aerospace, Inc.,
376 F.3d 1079, 1089 (11th Cir. 2004). The only evidence presented by McCann
demonstrates that the two candidates promoted were black, and thus, she has failed
to meet her burden as to this claim.6

Accordingly, the district court properly granted summary judgment on all
of McCann's racial discrimination claims.

II. Retaliation

Title VII prohibits an employer from retaliating against an employee
"because [s]he has opposed any practice made an unlawful employment practice
. . . or because [s]he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this subchapter." 42
U.S.C. § 2000e-3(a). "To establish a prima facie showing of retaliation under
Title VII, the plaintiff must show (1) that she engaged in statutorily protected
expression; (2) that she suffered an adverse employment action; and (3) that there
is some causal relation between the two events." Cooper v. Southern Co., 390
F.3d 695, 740 (11th Cir. 2004) (quotations omitted). As with McCann's
discrimination claim, if the appellees articulate legitimate reasons for their actions,
McCann must then "show that the employer's proffered reasons for taking the
adverse action were actually a pretext for prohibited retaliatory conduct." Sullivan
v. Nat'l R.R. Passenger Corp., 170 F.3d 1056, 1059 (11th Cir. 1999). In order to
do so, McCann must demonstrate "such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer's proffered
legitimate reasons for its action that a reasonable factfinder could find them
unworthy of credence." Cooper, 390 F.3d at 725 (quotations omitted).

The appellees challenge the third element of McCann's retaliation claim,
which requires a plaintiff to demonstrate that "the decision-maker[s] [were] aware
of the protected conduct, and that the protected activity and the adverse action
were not wholly unrelated." Gutpa v. Fla. Bd. of Regents, 212 F.3d 571, 590
(11th Cir. 2000) (alterations in original) (quotations omitted); see also Griffin v.
GTE Fla., Inc., 182 F.3d 1279, 1284 (11th Cir. 1999) ("At a minimum, [a plaintiff]
must show that the adverse act followed the protected conduct; this minimum
proof stems from the important requirement that the employer was actually aware
of the protected expression at the time it took adverse employment action.")
(quotations omitted). We have found that "‘close temporal proximity' may be
sufficient to show that the protected activity and the adverse action were not
‘wholly unrelated.'" Gutpa, 212 F.3d at 590 (quoting Farley v. Nationwide Mut.
Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999)).

McCann alleges that she suffered retaliation after filing a written grievance
on July 14, 2004, protesting her suspension. She alleges that Bounds retaliated
against her by sending out a memorandum on July 19, 2004, advising McCann's
supervisors that suspended officers were not permitted to work overtime, which
affected her compensation. Bounds was listed as a recipient on McCann's
grievance and appellees never stated that Bounds did not receive it at
approximately the time it was sent. Thus, the five days between McCann's
grievance and Bounds' overtime memorandum satisfies the "close temporal
proximity" test of the causation element. See McCann, 2006 WL 1867486, at *7.

Bounds articulated a nondiscriminatory reason for her memorandum,
explaining that employees who are suspended should not be able to recover for
their unpaid leave by working overtime upon their return to work. McCann
attempts to show pretext by alleging that employees of no other department of the
Sheriff's Office were forbidden from working overtime. The district court noted,
however, that although a departmental policy had not been implemented, Bounds'
superiors had previously discussed instituting this policy, but could not do so
because of staffing shortages. According to at least one superior, Bounds'
directive was consistent with their previous conclusion that this policy would be
appropriate.

The policy, which was agreed upon prior to the grievance, is entirely
logical, as it ensures the suspension will have its intended effect. McCann
therefore has failed to show a genuine issue of material fact that Bounds'
legitimate reason for her employment decision was pretextual. See, e.g., Wascura
v. City of S. Miami, 257 F.3d 1238, 1247 (11th Cir. 2001) (affirming summary
judgment for employer where legitimate reasons for the termination decision were
offered by the defendant and employee presented virtually no evidence, other than
temporal proximity of the events); Gutpa, 212 F.3d at 590–91 (finding that
although there was close temporal proximity between the adverse employment
action and the protected activity, employee failed to create a genuine issue of
material fact that the employer's nondiscriminatory reasons for its action were
pretextual).7

McCann also alleges that she received an unsatisfactory service rating that
prevented her promotion.8 McCann's service rating is dated August 24, 2004,
which is approximately six weeks after she filed her grievance as to the
suspension. As indicated, Bounds was an included recipient on McCann's
grievance and no argument has been raised that she did not receive it timely. The
six weeks between McCann's grievance and the service rating arguably satisfies
the proximity requirement. See, e.g., Farley, 197 F.3d at 1337 (time frame of
seven weeks sufficiently proximate when employers aware of plaintiff's EEOC
charge shortly after its filing); Donnellon v. Fruehauf Corp., 794 F.2d 598, 601
(11th Cir. 1986) ("The short period of time [one month] between the filing of the
discrimination complaint and the [adverse employment action] belies any assertion
by the defendant that the plaintiff failed to prove causation.")

Bounds' proffered reasons for the low service rating included McCann's
chronic tardiness, her manner of requesting leave by calling in, and her
suspension. McCann alleges that these reasons are a pretext for unlawful
retaliation because she has always received satisfactory service ratings before and
has been commended by other officers on her work performance, other officers
had less leave remaining than McCann, her suspension was due to off-duty
conduct and unrelated to her job performance, and her supervisor Sergeant Taylor
apologized for giving her a low service rating.

McCann has failed to demonstrate that Bounds' reasons for taking the
adverse action were pretextual. As the district court properly found, "[t]he
satisfactory ratings of previous supervisors can be of no consequence without a
showing that, when under their supervision, the plaintiff had leave and tardiness
issues similar to those noted by Bounds." McCann, 2006 WL 1867486, at *10.
Significantly, "differences in the evaluation of [a plaintiff's] performance do not
establish a genuine issue on pretext. Different supervisors may insist upon
different standards of behavior, and a new supervisor may decide to enforce
policies that a previous supervisor did not consider important." Rojas v. Florida,
285 F.3d 1339, 1343 (11th Cir. 2002). Thus, the opinions of former supervisors
and co-workers that do not address McCann's leave and tardiness issues cannot
demonstrate pretext.9

McCann's attempts to show pretext by providing the leave balances of other
officers and by claiming that her suspension was unrelated to job performance are
misguided. McCann was not rated unsatisfactorily for a low leave balance, but
rather for the manner in which she requested leave. McCann also has provided no
evidence that her suspension for off-duty conduct cannot be considered in
evaluating an officer's service rating, particularly when the suspension was for
abuse of office. In fact, the Sheriff's Office issued a standard operating procedure
explicitly stating that "it is incumbent upon each member and employee to be
continuously on guard against any manner of unbecoming conduct or
unprofessional behavior" and that "[c]onduct or deportment that is determined to
be prejudicial to the good order, efficiency and discipline of the Mobile County
Sheriff's Office (MCSO) may subject the offender to disciplinary action."
(Appellant's App., Tab 82 at 1.)

Finally, McCann alleges that she was retaliated against when she was
denied a promotion. McCann voluntarily consented to summary judgment on this
claim against all of the defendants except Bounds. See supra note 2 and
accompanying text. As McCann has not argued or presented any evidence that
Bounds was connected to the promotion decision, except in relation to the service
rating, and the service rating has not been shown to be the result of actionable
discrimination, summary judgment was correctly granted against McCann as to the
retaliatory failure to promote claim against Bounds.

Accordingly, McCann has failed to meet her burden to demonstrate that her
employers' reasons for their actions as to overtime, performance rating and
promotion were actually a pretext for retaliatory conduct. The district court
properly granted summary judgment on McCann's retaliation claims.

III. Hostile Work Environment

Title VII prohibits a hostile work environment in which "a series of separate
acts . . . collectively constitute one ‘unlawful employment practice.'" Nat'l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002) (citing 42 U.S.C.
§ 2000e-5(e)(1)). As opposed to "[d]iscrete acts such as termination, failure to
promote, denial of transfer, or refusal to hire," a hostile work environment claim
addresses acts "different in kind" whose "very nature involves repeated conduct,"
such as "‘discriminatory intimidation, ridicule, and insult.'" Id. at 114–16
(quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Thus, these "claims
are based on the cumulative effect of individual acts." Id. at 115.

To establish a hostile work environment claim, McCann must show:

"(1) that [s]he belongs to a protected group; (2) that [s]he has been subject to
unwelcome harassment; (3) that the harassment must have been based on a
protected characteristic of the employee . . . ; (4) that the harassment was
sufficiently severe or pervasive to alter the terms and conditions of employment
and create a discriminatorily abusive working environment; and (5) that the
employer is responsible for such environment under either a theory of vicarious or
of direct liability." Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th
Cir. 2002). Determining whether the harassment was sufficiently severe or
pervasive involves "both an objective and subjective component." Id. at 1276. In
determining the objective element, a court looks to "‘all the circumstances,'
including ‘the frequency of the discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee's work performance.'" Morgan, 536
U.S. at 116 (quoting Harris, 510 U.S. at 23); see also Miller, 277 F.3d at 1275.

McCann alleges she was subject to a hostile work environment where white
employees made derogatory racial comments about blacks, harsher discipline was
received by black employees, and complaints of discrimination were subject to
retaliation and not investigated. According to McCann, however, the only racially
insensitive comments she heard between 2003 and 2005 were when Bounds called
her "girl" and called two male black employees "boys." McCann also alleges that,
at some time prior to 2003, out of McCann's hearing, Tillman referred to a former
black employee as a "nigger bitch" and declared that "he had never received the
‘nigger vote' and that he didn't want it."10 (Appellant's Br. 33–34.)

As the district court properly found, the remainder of McCann's allegations
concern "patterns of discrimination practiced against black employees," which
constitute discrete acts that must be challenged as separate statutory discrimination
and retaliation claims. McCann, 2006 WL 1867486, at *19–20; see also Morgan,
536 U.S. at 111–113. These cannot be brought under a hostile work environment
claim that centers on "discriminatory intimidation, ridicule, and insult." See
Morgan, 536 U.S. at 116 (quotations omitted).

Although offensive, such instances of racially derogatory language alone,
extending over a period of more than two years, are too sporadic and isolated to
establish that her employers' conduct was so objectively severe or pervasive as to
alter the terms and conditions of her employment. As the district court properly
found, the only term ever directed at McCann was "girl" and the term "boy" was
used only once in front of her. McCann, 2006 WL 1867486, at *20. McCann
does not allege that anyone else ever used racially derogatory speech towards her.

Although McCann heard of racial epithets being spoken twice by Sheriff Tillman,
these were never directed at McCann, nor spoken in her presence. Id.; see also
Harris, 510 U.S. at 21 (finding that the "‘mere utterance of an . . . epithet which
engenders offensive feelings in a employee,' . . . does not sufficiently affect the
conditions of employment to implicate Title VII") (quoting Meritor Sav. Bank,
FSB v. Vinson, 477 U.S. 57, 67 (1986)). Moreover, although McCann alleges that
she was upset by this language, she has not demonstrated that the alleged
environment interfered with her job performance. In fact, McCann actually
testified that it did not affect her work. (See Appellant's App., Tab 1 at 33.)
Consequently, the evidence presented by McCann was insufficient to
support a claim of hostile work environment, and the district court properly
granted summary judgment with respect to this claim.

* * *

http://www.ca11.uscourts.gov/opinions/ops/200711743.pdf

Accordingly, we affirm the district court’s grant of summary judgment as to
all claims.

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