“[A]n employer may not satisfy its burden of production by offering a justification which the employer either did not know or did not consider at the time the decision was made.”
How later courts described this case
- “[A]n employer may not satisfy its burden of production by offering a justification which the employer either did not know or did not consider at the time the decision was made.”
- “[A] plaintiff must pre- sent evidence from which a reasonable jury could find that the de- fendant did not honestly believe the facts upon which he allegedly based his non-[retaliatory] decision.”
- “The inquiry into pretext centers on the employer’s beliefs, not the employee’s beliefs and, to be blunt about it, not on reality as it exists outside of the decision maker’s head.”
- explaining that “[t]he inquiry into pretext centers on the em- ployer’s beliefs”
Written by the judges who cited it.
The opinion
USCA11 Case: 23-14141 Document: 23-1 Date Filed: 08/29/2024 Page: 1 of 16
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-14141
Non-Argument Calendar
____________________
SYLVIA A. FRIPP,
Plaintiff-Appellant,
versus
CITY OF ATLANTA, GEORGIA,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:21-cv-02670-CAP
____________________
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2 Opinion of the Court 23-14141
Before WILSON, ROSENBAUM, and LUCK, Circuit Judges.
PER CURIAM:
Sylvia Fripp appeals the district court’s grant of summary
judgment in favor of the City of Atlanta on her claim of retaliation
in violation of Title VII. See 42 U.S.C. § 2000e-3(a). After careful
review, we affirm.
I.
The relevant facts are set forth in detail in the magistrate
judge’s report and recommendation, so we provide only a short
summary here. In May 2015, Fripp transferred to the job of Equip-
ment Operator II in the City’s Department of Transportation, un-
der the supervision of Allen Smith. After short training stints in
other sections, including concrete and asphalt, Fripp moved to the
North Avenue “bridge shop” in March 2016.
In November 2017, Fripp complained to Smith that a
coworker had sexually harassed her. Smith testified that he con-
ducted an investigation but was unable to substantiate her claims.
Thereafter, Smith transferred Fripp to the so-called “administration
building” with the facilities team. In April 2018, Fripp filed a charge
of discrimination with the Equal Employment Opportunity Com-
mission (“EEOC”) based on these events.
For periods of 2018 and 2019, Fripp was placed on sedentary
work restrictions by physicians due to work-related injuries. Smith
informed human resources he was unable to accommodate those
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23-14141 Opinion of the Court 3
restrictions, so Fripp was placed on workers’ compensation leave
during those times.
In October 2019, Fripp’s workers’ compensation doctor, Mi-
chael York, M.D., released her to return to work on regular duty
without any limitations on November 1, 2019. When Fripp even-
tually returned to work on December 3, 2019, though, she was
wearing a leg brace and using a cane. That prompted discussions
between Smith, human resources, and workers’ compensation on
next steps.
Not long after, Smith and human resources scheduled Fripp
for a fitness-for-duty examination. That exam, originally scheduled
for January 13, 2020, was postponed pending the outcome of
Fripp’s visit with Dr. York, her workers’ compensation doctor, on
January 8. Based on the exam, Dr. York opined that Fripp re-
mained at maximum medical improvement for her workers’ com-
pensation injury—though he recommended knee surgery for a
non-work-related injury—and that she could return to work with-
out restrictions on January 9, 2020. Dr. York also included, and
then later rescinded, a light-duty restriction based on a “functional
capacity evaluation” that Fripp’s attorney had ordered. 1
The City then rescheduled Fripp’s fitness-for-duty exam for
February 6, 2020, and it notified Fripp that she was required to
1 As the magistrate judge noted, while the functional capacity evaluation itself
states that it was prepared at Dr. York’s request, other evidence established
that “Dr. York in fact did not order it.” Fripp does not dispute that finding on
appeal.
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4 Opinion of the Court 23-14141
attend. It also provided her with disability-accommodation paper-
work. Fripp did not attend the fitness-for-duty exam or return any
completed disability paperwork.
Meanwhile, on January 2, 2020, Plaintiff filed an internal
grievance with the City, alleging that a coworker had sexually har-
assed her. Smith notified human resources, which forwarded the
grievance to the City’s Office of Labor and Employee Relations
(“OLER”).
On March 25, 2020, Smith sent to human resources a draft
Notice of Proposed Adverse Action, in which he recommended
Fripp’s dismissal for failure to attend the fitness-for-duty exam. But
the termination did not proceed at that point because the new Di-
rector of OLER, Michael Kirkwood, discovered that Fripp’s Janu-
ary 2020 sexual harassment complaint was still pending and needed
to be resolved before the City could proceed with Fripp’s dismissal.
Kirkwood ultimately determined that her allegations were unsub-
stantiated and closed the investigation. Soon after, Fripp filed a
charge of discrimination with the EEOC, alleging sex discrimina-
tion and retaliation.
Beginning on December 29, 2020, Fripp did not work.2 On
January 29, 2021, the City emailed Fripp paperwork so that she
could request leave under the Family and Medical Leave Act
(“FMLA”). A few days later, human resources initiated the process
to terminate Fripp’s employment, noting in an email that “[w]e
2 Fripp was sick with COVID for part of January 2021.
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23-14141 Opinion of the Court 5
have been dealing with her for some time.” When contacted by
Smith about her absence, Fripp said she wanted to use her accrued
leave hours and submitted a doctor’s note stating that she should
be placed on medical leave from January 14, 2021, through July 1,
2021. But she did not complete any FMLA paperwork, as directed.
On April 8, 2021, Smith sent Fripp a Notice of Proposed Ad-
verse Action, advising that her employment would terminate in
two weeks. The notice stated that the department sought dismis-
sal, in part, for “insubordinat[ion],” in violation of City Code § 114-
528(b)(3) and (b)(16), for refusing to return to work or to attend the
fitness-for-duty assessment as ordered on February 6, 2020, after
she had been released to return to work without restrictions by her
workers’ compensation doctor. The notice also asserted that Fripp
had been absent without leave, in violation of City Code § 114-
528(b)(8), due to her failure to request a reasonable accommoda-
tion or to return “any FMLA documents to support her inability to
report to work.” A Notice of Final Adverse Action, reciting the
same basic grounds, was issued on April 27, 2021.
II.
Fripp sued the City in federal court in July 2021, asserting
claims under Title VII, the Equal Protection Clause of the Four-
teenth Amendment, and the Fair Labor Standards Act (“FLSA”),
and for violations of her right to privacy. Following litigation and
multiple amendments, Fripp filed a third amended complaint rais-
ing just two claims: (1) retaliation in violation of Title VII; and (2)
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6 Opinion of the Court 23-14141
violation of the FLSA. Only the Title VII retaliation claim is at issue
in this appeal.
After discovery, a magistrate judge issued a report and rec-
ommendation (“R&R”) recommending that the City’s motion for
summary judgment be granted. In relevant part, the magistrate
judge concluded that Fripp had not presented any direct evidence
of retaliation and that her circumstantial evidence was insufficient
to present a jury question. The magistrate judge explained that
Fripp based her retaliation claim on three alleged adverse actions:
(1) refusal to allow her to perform light-duty work; (2) interference
with her workers’ compensation claim; and (3) termination. In the
magistrate judge’s view, no evidence supported Fripp’s claims that
the City refused light-duty work or interfered with her workers’
compensation claim. As for her termination, the magistrate judge
concluded that Fripp failed to establish a causal connection be-
tween her protected activity and her termination or to show that
the City’s legitimate, non-retaliatory reasons for her termination
were pretextual.
Fripp filed objections to the R&R’s legal conclusions but did
not clearly object to the magistrate judge’s construction of the rel-
evant facts. The district court overruled Fripp’s objections,
adopted the magistrate judge’s R&R, and granted the City’s mo-
tion for summary judgment. This appeal followed.
III.
We review the district court’s grant of summary judgment
de novo, viewing the evidence in the light most favorable to Fripp
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23-14141 Opinion of the Court 7
and drawing all reasonable inferences in her favor. Tolar v. Bradley
Arant Boult Commings, LLP, 997 F.3d 1280, 1288–89 (11th Cir. 2021).
Summary judgment is appropriate if the evidence, construed in this
way, shows that there are no genuine issues of material fact and
that the City is entitled to judgment as a matter of law. Id.; Fed. R.
Civ. P. 56(a). “A genuine factual dispute exists if the jury could
return a verdict for the non-moving party.” Thomas v. Cooper Light-
ing, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007).
Title VII prohibits an employer from retaliating against an
employee “because [s]he has opposed any practice made an unlaw-
ful employment practice by [Title VII], or because [s]he has made
a charge . . . under [Title VII].” 42 U.S.C. § 2000e-3(a).
We often rely on a burden-shifting framework to evaluate
retaliation claims based on circumstantial evidence, like the claim
asserted by Fripp, at summary judgment. Yelling v. St. Vincent’s
Health Sys., 82 F.4th 1329, 1337 (11th Cir. 2023). The “plaintiff must
first make out a prima facie case by showing (1) she engaged in a
statutorily protected activity, (2) she experienced an adverse em-
ployment action, and (3) causation.” Id. The burden then shifts to
the employer to articulate a legitimate, non-retaliatory reason for
the adverse action. Id. If the employer does so, “the plaintiff must
show that each reason is merely a pretext and that the real reason
was retaliation.” Patterson v. Ga. Pacific, LLC, 38 F.4th 1336, 1345
(11th Cir. 2022).
In showing pretext, the plaintiff generally “must meet [the]
reason head on and rebut it, and the employee cannot succeed by
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8 Opinion of the Court 23-14141
simply quarreling with the wisdom of that reason.” Chapman v. AI
Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc). Our inquiry,
ultimately, “is limited to whether the employer gave an honest ex-
planation of its behavior.” Id.; see Alvarez v. Royal Atl. Developers,
Inc., 610 F.3d 1253, 1266 (11th Cir. 2010) (“The inquiry into pretext
centers on the employer’s beliefs, not the employee’s beliefs and,
to be blunt about it, not on reality as it exists outside of the decision
maker’s head.”). A plaintiff’s showing that the employer was
simply incorrect in its decision is insufficient. Elrod v. Sears, Roebuck
& Co., 939 F.2d 1466, 1470 (11th Cir. 1991). Rather, “a plaintiff
must present evidence from which a reasonable jury could find that
the defendant did not honestly believe the facts upon which he al-
legedly based [the] non-discriminatory decision.” Woodard v.
Fanboy, L.L.C., 298 F.3d 1261, 1265 (11th Cir. 2002).
A.
Before we get to that analysis, though, we must address
Fripp’s claim that she has direct evidence of retaliation not subject
to this burden-shifting framework. “Direct evidence is evidence,
that, if believed, proves the existence of discriminatory intent with-
out inference or presumption.” Jefferson v. Sewon Am., Inc., 891 F.3d
911, 921 (11th Cir. 2018) (cleaned up). Circumstantial evidence, in
contrast, “only suggests, but does not prove, a discriminatory mo-
tive.” Id. at 921–22 (quotation marks omitted). Under our prece-
dent, direct evidence includes “only the most blatant remarks,
whose intent could mean nothing other than to discriminate” or
retaliate. Jones v. Gulf Coast Health Care of Delaware, LLC, 854 F.3d
1261, 1270 (11th Cir. 2017) (quotation marks omitted).
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23-14141 Opinion of the Court 9
Fripp offers three statements which, in her view, qualify as
direct evidence of retaliatory intent. We disagree.
Fripp first points to Smith’s January 25, 2018, email to hu-
man resources, in which he wrote that he was “unable to accom-
modate Ms. Fripp in a working capacity at North Ave.,” after not-
ing that she had complained of sexual harassment or bullying in
multiple sections, including concrete, asphalt, and the bridge shop.
She also cites a similar email from Smith to human resources on
August 8, 2019, in which he asked to reassign Fripp, stating, “I am
no longer able to accommodate her at North Ave. Ms. Fripp has
claimed that she has been harassed at multiple sections at North
Ave.”
Although these emails clearly evince a causal connection be-
tween her complaints and her reassignment, they do not prove a
retaliatory motive “without inference or presumption.” 3 See Jeffer-
son, 891 F.3d at 921. A reasonable factfinder could instead infer, as
Smith testified, that he “wanted to place [Fripp] in a different envi-
ronment, just to give her space from anything she may have been
perceiving as harassment or an uncomfortable situation.”
Finally, Fripp cites similar comments Smith made in the No-
tice of Proposed Adverse Action under the section entitled “Infrac-
tion.” But again, those comments do not prove retaliatory motive
without inference or presumption. The notice did not claim that
3 Nor does Fripp cite her reassignment as an adverse action on which her re-
taliation claim is based.
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10 Opinion of the Court 23-14141
Smith had committed any infraction in relation to her complaints.
Nor did it directly cite those complaints as a basis for dismissal. Ra-
ther, the comments appear as backstory for the other infractions
listed in the notice. And that is not enough to serve as direct evi-
dence under our precedent. Accordingly, the district court
properly found that Fripp did not present direct evidence of retali-
atory intent.
B.
Turning to Fripp’s circumstantial evidence, which we con-
strue in the light most favorable to her, we agree with the district
court that no reasonable jury could return a favorable verdict on
her Title VII retaliation claim. Even assuming Fripp established a
prima facie case of retaliation, she has not rebutted the City’s legit-
imate, non-retaliatory reasons for its actions or otherwise pre-
sented sufficient evidence to support a reasonable inference that
she suffered an adverse action in retaliation for her protected activ-
ity. See Tolar, 997 F.3d at 1288–89; Thomas, 506 F.3d at 1363.
In support of her retaliation claim, Fripp relies on three al-
leged adverse actions: (1) Smith’s “refusal to assign her to light duty
work”; (2) “the City’s interference with her workers’ compensation
claim”; and (3) her termination. We address each action in turn.
1. Refusal to assign light-duty work
Fripp claims that Smith refused to accommodate her with
light-duty work. The record shows that Fripp was twice placed on
sedentary work restrictions due to work-related injuries, first in
mid-2018, and then again in September 2019. On both occasions,
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23-14141 Opinion of the Court 11
Smith informed human resources that he was unable to accommo-
date her restrictions because no sedentary work was available, so
Fripp was placed on workers’ compensation leave as a result.
Fripp has not established pretext. She offers no evidence to
contradict Smith’s explanation that no sedentary work was availa-
ble to accommodate her restrictions. While she points out that
Smith had transferred her to the administration building with the
facilities team in January 2018, she cites no evidence that her work
there would qualify as sedentary, even if it was primarily adminis-
trative, or that other sedentary work was available at the time her
restrictions were in effect. She also asserts that other employees
were permitted to work with a sling or a cane, but she identifies no
details about their jobs or work restrictions. Nor does the record
otherwise indicate a connection between her complaints of sexual
harassment and the purported denial of light work, such as tem-
poral proximity.
2. Interference with workers’ compensation
Next, Fripp contends that the City interfered with her work-
ers’ compensation case by ordering a fitness-for-duty examination
and seeking changes to her workers’ compensation doctor’s recom-
mendations.
The record shows that Smith and human resources ordered
the fitness-for-duty exam after Fripp returned to work on Decem-
ber 3, 2019, wearing a leg brace and using a cane, even though she
had been cleared by Dr. York, her workers’ compensation doctor,
to return to full duty with no restrictions. Smith testified he was
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12 Opinion of the Court 23-14141
concerned about whether Fripp could perform the work of her po-
sition as an equipment operator II. The exam was postponed pend-
ing another visit with Dr. York on January 8. After the visit, Dr.
York opined that Fripp remained at maximum medical improve-
ment and that she could return to work without restrictions on Jan-
uary 9, 2020. But Dr. York noted that Plaintiff had knee problems
that were not related to any workplace injury, and he recom-
mended that she undergo left-knee replacement surgery through
her private insurance. Dr. York also noted that Plaintiff had
brought in a “functional capacity evaluation” that her attorney had
ordered.
Despite stating that Fripp could return without restrictions,
Dr. York also opined, under the heading “Current Work Status,”
that Fripp “may return to light duty today based on the [functional
capacity evaluation] recommendations.” Later that month, on Jan-
uary 28, 2020, Dr. York removed the “light duty” recommendation
and clarified that Fripp could return to work “without restrictions.”
It appears Dr. York was asked to clarify Fripp’s work status be-
cause, according to an email to the City from an employee with the
City’s third-party administrator for workers’ compensation claims,
“[h]e did not order the [functional capacity evaluation] therefore
he should not be addressing the [functional capacity evaluation].”
Here, as a magistrate judge observed, Fripp offered no evi-
dence that the City interfered with any workers’ compensation
benefit to which Fripp was entitled. Nor do we see any evidence
of pretext. The fitness-for-duty examination was postponed until
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23-14141 Opinion of the Court 13
after Dr. York completed his evaluation, after which he released
Fripp to return to work “without restrictions.” And while Dr. York
initially included a light-duty recommendation, the record shows
that this recommendation was based on a non-work-related injury,
and a functional capacity evaluation he did not order, rather than
the workers’ compensation injury. That Dr. York was asked to
limit his evaluation to the work-related injury does not suggest ei-
ther pretext or retaliation.
3. Termination
Finally, Fripp maintains that the City terminated her in re-
taliation for her repeated complaints of sexual harassment. The
City proffered two main reasons for her termination: (1) insubor-
dination, for refusing to return to work or to attend the fitness-for-
duty assessment as ordered, after she had been released to return
to work without restrictions by her workers’ compensation doctor;
and (2) being absent without leave by failing to request a reasona-
ble accommodation or to return “any FMLA documents to support
her inability to report to work.”
As to the first reason, Fripp primarily relies on City Code
§ 114-380, which states, “The head of the department, with the ap-
proval of the commissioner of human resources, shall have the
right to direct any employee within such department to be exam-
ined by a physician or psychologist to be designated by the city.”
She asserts that Smith was not head of the department and did not
obtain approval of the commissioner of human resources. Fripp
has not raised a material issue of fact about pretext.
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14 Opinion of the Court 23-14141
Undisputed evidence shows that the City had reasonable
grounds to believe a fitness-for-duty exam was warranted, since
Fripp appeared unable to perform her job functions despite being
released to full duty by Dr. York, her workers’ compensation doc-
tor. The evidence also reflects that, before the City ordered the
fitness-for-duty exam, Smith sought guidance and obtained ap-
proval from the human resources department, which issued the
notice to Fripp about the exam. Even assuming this process did
not follow the City code, we agree with the magistrate judge that
Fripp came forward “with no evidence to suggest that Smith and
human resources did not honestly believe they could require such
an exam or discipline her for refusing one.” See Alvarez, 610 F.3d at
1266 (explaining that “[t]he inquiry into pretext centers on the em-
ployer’s beliefs”); Woodard, 298 F.3d at 1265 (“[A] plaintiff must pre-
sent evidence from which a reasonable jury could find that the de-
fendant did not honestly believe the facts upon which he allegedly
based his non-[retaliatory] decision.”).
Nor are we persuaded that pretext is shown by evidence that
the City attempted to schedule the fitness-for-duty exam while
Fripp was seeing a workers’ compensation doctor. Fripp’s evi-
dence indicates that a fitness-for-duty exam is not appropriate while
an employee is actively under the care of a workers’ compensation
doctor, who is authorized to “dictate what they can and can’t do.”
Smith likewise cast doubt on the need for a fitness-for-duty exam
in these circumstances. But the record shows that the fitness-for-
duty exam was first scheduled after Dr. York released Fripp to re-
turn to work on regular duty without any limitations on
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23-14141 Opinion of the Court 15
November 1, 2019. It was then postponed when it became clear
that Fripp had another appointment scheduled with Dr. York for
January 8, 2020. But the person who requested the cancellation
noted that the exam “can be rescheduled after we receive the
notes” from that visit. And the exam was not rescheduled until Dr.
York apparently offered his final thoughts on the matter in late Jan-
uary 2020. So we do not find Fripp’s contention that there was
something improper in the scheduling of the fitness-for-duty exam
to be well taken.
As to the second reason cited for Fripp’s termination—her
absence from work without leave—Fripp likewise has not shown a
material issue of fact concerning pretext. For starters, we reject
Fripp’s contention that this legitimate, non-retaliatory reason was
not available to the City at the time it decided to move forward
with her termination in February 2021. See Turnes v. AmSouth Bank,
NA, 36 F.3d 1057, 1061 (11th Cir. 1994) (“[A]n employer may not
satisfy its burden of production by offering a justification which the
employer either did not know or did not consider at the time the
decision was made.”). By that time, Fripp had been absent from
work since December 29, 2020. Although Fripp had COVID for
part of that time, she does not cite evidence that her absence from
work had been approved more generally. So while Smith later
added her failure to return FMLA paperwork in the Notice of Pro-
posed Adverse Action, that failure merely confirmed that her ab-
sence was unapproved.
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16 Opinion of the Court 23-14141
As the magistrate judge explained, the City’s Director of Hu-
man Resources testified that employees who anticipated being ab-
sent for extended periods must apply for leave under the FMLA to
protect their jobs. If a City employee does not apply for FMLA
leave and is out of work for an extended period, then that leave is
unapproved, even if the employee has sick leave or other leave
available. No other City official testified to the contrary. While
such a policy does not appear to have been codified, Fripp offers no
evidence that City officials applied the policy inconsistently or did
not honestly believe that Fripp was required to return FMLA pa-
perwork to excuse her extended absence from work.
For these reasons, we agree with the magistrate judge and
the district court that Fripp has not established pretext in the City’s
legitimate, non-retaliatory reasons for her termination, or in the
other alleged adverse actions she raised. We therefore affirm the
district court’s grant of summary judgment on Fripp’s claims of re-
taliation under Title VII.
AFFIRMED.