Dare Adewumi v. Wellstar Medical Group, LLC

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 24-12243

Non-Argument Calendar

____________________

DR. DARE ADEWUMI,

Plaintiff-Appellant,

versus

WELLSTAR MEDICAL GROUP AND

WELLSTAR HEALTH SYSTEMS, INC.,

Defendants-Appellees,

NORTHSIDE HOSPITAL, INC.,

Defendant.

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2 Opinion of the Court 24-12243

____________________

Appeal from the United States District Court

for the Northern District of Georgia

D.C. Docket No. 1:21-cv-04048-CAP

____________________

Before JILL PRYOR, BRASHER, and HULL, Circuit Judges.

PER CURIAM:

Dr. Dare Adewumi appeals the district court’s grant of

summary judgment in favor of his former employers Wellstar

Medical Group, LLC and Wellstar Health Systems, Inc.

(collectively “the Wellstar defendants” or “Wellstar”) on his race

discrimination claim under 42 U.S.C. § 1981. After review, we

affirm.

I. FACTUAL BACKGROUND

The report and recommendation (“R&R”), adopted by the

district court, thoroughly reviewed the summary judgment facts,

the procedural history, and the applicable legal principles in this

case. Because we write only for the benefit of the parties, we

discuss only the facts and procedural history necessary to explain

the context of our decision.

A. 2018 Hiring

In March 2018, Dr. Adewumi, who is African American,

began working as the sole neurosurgeon at Wellstar Cobb

Hospital, one of Wellstar’s hospitals. Dr. Adewumi was hired to

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restart the neurosurgery service line at Cobb Hospital, which had

been defunct for twenty years.

Dr. William Benedict, the practice lead of Wellstar Medical

Group’s neurosurgery practice group, interviewed Dr. Adewumi

for the position. Dr. Benedict worked at Kennestone Regional

Medical Center, another of the Wellstar defendants’ affiliate

hospitals. Dr. Benedict reported to Dr. Alan Muster, the Senior

Vice President of Wellstar Medical Group’s specialty division, who

oversaw all surgeons and medical specialists and was the final

decisionmaker for hiring and firing physicians within the specialty

groups. Dr. Benedict recommended to Dr. Muster that Dr.

Adewumi be hired.

B. Peer Review Process

Beginning in late 2018 and into 2019, some of Dr.

Adewumi’s cases were referred to a peer review process conducted

by Cobb Hospital’s surgery Medical Executive Committee

(“MEC”). Dr. Benedict was not a member of the MEC and did not

vote on any of the MEC’s final determinations. However, because

there was no other neurosurgeon at Cobb Hospital to perform a

peer review, Dr. Benedict was asked to review Dr. Adewumi’s

cases and give guidance to the MEC. In some cases, the MEC

found Dr. Adewumi’s care to be “appropriate,” but in other cases,

the MEC found Dr. Adewumi’s care to be either “appropriate with

opportunity for improvement” or “inappropriate.” With Dr.

Benedict’s support, the MEC also referred for external review

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several cases in which Dr. Adewumi’s care was deemed

inappropriate.

Dr. Adewumi came to believe Dr. Benedict did not like him

and had “weaponized” the peer review process to damage his

career. According to Dr. Adewumi, Dr. Benedict criticized and

belittled him in a condescending manner, questioned his

competency, called him callous, uncaring, arrogant, and lazy, and

suggested Dr. Adewumi needed remediation. Dr. Benedict also

made disparaging remarks to Dr. Adewumi about two other

African-American neurosurgeons, Dr. Kenneth Hill and Dr. Paul

King, who had worked for Wellstar, criticizing their surgical skill

and medical knowledge and suggesting they should not have been

employed.

C. Dr. Adewumi’s Complaints

Between March and June 2019, Dr. Adewumi complained to

Dr. Muster “multiple times” about Dr. Benedict’s treatment of

him. Specifically, Dr. Adewumi advised that “Dr. Benedict did not

like [him], and [he] did not know why [Dr. Benedict] did not like

[him].” Dr. Adewumi told Dr. Muster that Dr. Benedict also “did

not like” Dr. Hill and Dr. King, but Dr. Adewumi “was afraid to be

too direct because [he] did not want to jeopardize [his] job.”

Dr. Adewumi also expressed concerns to Dr. Muster about

the MEC peer review process and that Dr. Benedict was biased

against him and “was out to damage [his] career.” Dr. Adewumi

complained to Dr. Muster and others in Wellstar’s “leadership”

that Dr. Benedict was targeting him and trying to end his career,

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but Dr. Adewumi admitted that he was “afraid to bring up race” in

these conversations with “white superiors” because he was “afraid

of being accused of using a race card” and “afraid of further

retaliation.” After one such conversation on April 4, 2019, Dr.

Muster emailed Dr. Benedict, advising him that Dr. Adewumi

“feels you may have already determined that he is not going to

succeed and are biased against him.”

D. Formal Action Plan

In July 2019, the MEC decided to place Dr. Adewumi on a

formal action plan. The proposed action plan (1) called for Dr.

Adewumi to work for 4.5 months at Kennestone Hospital under

the supervised mentorship of other neurosurgeons in the practice

group, and (2) thereafter Dr. Adewumi could return to Cobb

Hospital and the MEC would conduct a focused review of his cases

there for the next twelve months. Under the action plan, Dr.

Adewumi would “take call” and perform surgeries in partnership

with other Kennestone-based neurosurgeons in a “buddy system.”

The intent was to immerse Dr. Adewumi in the “processes at

Kennestone” so that he could learn from them and bring them back

to Cobb Hospital.

Because the MEC’s action plan would need the

neurosurgery team’s support, the MEC consulted Dr. Muster, who

in turn sought Dr. Benedict’s input, before the action plan was

presented to Dr. Adewumi. After a July 9, 2019 meeting with Dr.

Muster and the Kennestone-based neurosurgeons tasked with

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mentoring him, Dr. Adewumi signed the action plan on July 17,

2019.

E. Neurosurgeons at Kennestone Hospital

Once Dr. Adewumi was on the action plan, other

neurosurgeons in the practice expressed concerns to Dr. Benedict

about the burden that the action plan placed on them while they

also had to manage their own caseloads at Kennestone Hospital, a

Level 2 trauma center. 1 Some neurosurgeons also said they

believed Dr. Adewumi was merely “checking the boxes” to

complete the action plan and not internalizing the learning the plan

was meant to instill.

Dr. Benedict relayed these concerns about the strain on the

Kennestone neurosurgery team to Dr. Muster, explaining it was

causing disruption to the team, who felt they were more invested

in Dr. Adewumi’s success than Dr. Adewumi was. In fall 2019, Dr.

Benedict recommended to Dr. Muster that Dr. Adewumi be

terminated.

Dr. Muster said that some of the neurosurgeons at

Kennestone Hospital indicated to him that they did not feel they

could continue to support the action plan. Dr. Muster was

concerned that Wellstar “could lose one or more [of] the

neurosurgeons if [they] continued with this path.” Dr. Muster

1 At the time, Kennestone Hospital was the busiest hospital in the Wellstar

system, “with the highest acuity patients.” And the volume of cases “per

doctor” was higher at Kennestone than at Cobb Hospital.

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decided to terminate Dr. Adewumi because the action plan was

putting too much strain on the already heavily burdened

neurosurgery practice at Kennestone Hospital.

F. Termination

On October 8, 2019, Dr. Muster and the Human Resources

Vice President met with Dr. Adewumi and terminated him

“without cause” pursuant to the terms of his employment contract.

Dr. Muster told Dr. Adewumi that his termination was because the

action plan put too much strain on the neurosurgery group at

Kennestone Hospital and that his termination was not based on

any non-compliance with the action plan. Dr. Muster also

suggested that Dr. Adewumi had not fostered relationships that

should have been fostered.

In the fall of 2021, Dr. Marcus Gates, who is African

American, began working for Wellstar Medical Group as a

neurosurgeon at Cobb Hospital. In July 2022, Dr. Gates was joined

by Dr. Saint-Aaron Morris, another African-American

neurosurgeon, at Cobb Hospital.

II. DEFENDANTS’ SUMMARY JUDGMENT MOTION

On September 21, 2023, the Wellstar defendants filed a

motion for summary judgment, a brief in support, and a separate

statement of undisputed material facts, as required by Northern

District of Georgia Local Rule 56.1(B)(1).

Dr. Adewumi filed a brief and a separate response to

Wellstar’s statement of undisputed material facts, admitting some

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facts and denying others. But Dr. Adewumi did not file his own

separate statement of additional facts that he contended were

material and created a genuine issue for trial, as required by Local

Rule 56.1(B)(2)(a)(4).

Dr. Adewumi did file a 47-page declaration that outlined his

version of events—sometimes with citations to the depositions of

Dr. Muster and Dr. Benedict—and also alleged additional facts. Dr.

Adewumi’s declaration also disputed various statements in

affidavits that Wellstar submitted in support of summary

judgment. In addition, Dr. Adewumi filed a declaration of Dr. Paul

King, a retired African-American neurosurgeon who had worked

at Atlanta Medical Center, another Wellstar hospital. Both Dr.

Adewumi’s summary judgment brief and his separate response to

Wellstar’s statement of undisputed material facts relied upon his

and Dr. King’s declarations to refute Wellstar’s facts and support

his additional facts.

III. MAGISTRATE JUDGE’S R&R

As a threshold matter, the R&R, adopted by the district

court, declined to consider the facts set forth in Dr. Adewumi’s and

Dr. King’s declarations for two reasons. First, and primarily, the

R&R concluded that these facts were “not properly before the

Court” because, although they were cited in Dr. Adewumi’s

response brief, none of them “were included in a separate

statement of additional facts as required by [Local Rule]

56.1(B)(1)(d) and (2)(b).” The R&R cited several other district court

decisions in the Northern District of Georgia likewise refusing to

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consider facts stated in a declaration or affidavit but not

incorporated into a statement of material facts as required by

Northern District of Georgia’s Local Rule 56.1.

Second, and in a footnote, the R&R concluded that Dr.

Adewumi’s and Dr. King’s declarations were “unsworn and fail to

comply with the requirements of 28 U.S.C. § 1746. The R&R

stressed that these two declarations (1) did not contain the precise

language required by § 1746; (2) did not declare that the statements

were “true and correct”; and (3) were not sworn, “i.e., sworn under

oath before a notary or other oath-taker as shown by a notary

signature and seal, in spite of the assertion that the declarant was

‘duly sworn.’”

On the merits, the R&R recommended granting summary

judgment to the Wellstar defendants, concluding that Dr.

Adewumi had failed to present sufficient evidence to create a

triable issue of fact as to whether he was terminated because of his

race under either the McDonnell Douglas2 burden-shifting

framework or the alternative “convincing mosaic” approach.

Dr. Adewumi filed multiple objections to the R&R. In a 30-

page order, after reviewing the summary judgment facts, the

district court overruled Dr. Adewumi’s objections and adopted the

R&R. Among other things, the district court ruled that the

magistrate judge properly disregarded Dr. Adewumi’s and Dr.

King’s declarations.

2 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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IV. STANDARD OF REVIEW

We review a district court’s application of its local rules for

abuse of discretion. Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1302

(11th Cir. 2009). Likewise, we review a district court’s evidentiary

rulings at summary judgment for abuse of discretion. Wright v.

Farouk Sys., Inc., 701 F.3d 907, 910 (11th Cir. 2012).

We review de novo a district court’s order granting summary

judgment, viewing all evidence and drawing all inferences in favor

of the non-moving party. Jenkins v. Nell, 26 F.4th 1243, 1249 (11th

Cir. 2022). Summary judgment is appropriate when the record

demonstrates that there is no genuine dispute as to any material

fact, and the movant is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(a).

V. TWO DECLARATIONS

For the following reasons, the district court did not abuse its

discretion in declining to consider the declarations of Dr. King and

Dr. Adewumi.

A. Dr. King’s Declaration

Dr. King’s declaration, which is unsworn, does not comply

with the requirements of § 1746. For an unsworn declaration

executed in the United States to have the same force and effect as

a sworn declaration, § 1746(2) provides that the unsworn

declaration must be “subscribed by [the declarant], as true under

penalty of perjury, and dated, in substantially the following

form: . . ‘I declare (or certify, verify, or state) under penalty of

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perjury that the foregoing is true and correct. Executed on (date).

(Signature)’.” 28 U.S.C. § 1746(2). Dr. King’s declaration omits any

statement declaring that its contents are “true and correct,” and

thus does not satisfy all of § 1746(2)’s requirements. As such, Dr.

King’s unsworn declaration does not constitute competent

summary judgment evidence. See Roy v. Ivy, 53 F.4th 1338, 1347

(11th Cir. 2022) (explaining § 1746 provides a statutory exception

to the general rule that unsworn statements may not be considered

for summary judgment purposes).

B. Dr. Adewumi’s Declaration

Dr. Adewumi’s declaration does not precisely track the

declaratory language set out in § 1746(2). However, the

declaration’s preamble does state that Dr. Adewumi “hereby

declares under the pains and penalties of perjury” and then the first

numbered statement after the preamble further “declare[s] that the

statements made herein are true . . . .”

We need not decide whether Dr. Adewumi’s declaration

substantially complies with § 1746(2), however, because even

assuming it does, we still must affirm the district court’s declining

to consider the facts contained in Dr. Adewumi’s declaration. The

district court declined to consider those facts because in responding

to summary judgment, Dr. Adewumi failed to comply with Local

Rule 56.1(B)(2).

More specifically, Local Rule 56.1(B)(1)(d) provides that the

district court “will not consider a fact . . . set out only in the brief

and not in the movant’s statement of undisputed facts.” Local Rule

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56.1(B)(2)(a) requires the respondent to a summary judgment

motion to include with his responsive brief a “response to the

movant’s statement of facts.” In addition, Local Rule 56.1(B)(2)(b)

requires a “statement of additional facts which the respondent

contends are material and present a genuine issue for trial.” Local

Rule 56.1(B)(2)(b) further states that the respondent’s “separate

statement of material facts must meet the requirements set out in

LR 56.1(B)(1).”

As the adopted R&R explained, district courts in the

Northern District of Georgia long have interpreted Local Rule

56.1(B)(2)(b) to prohibit the court from considering a fact in the

respondent’s responsive brief that is not also found in the

respondent’s separate statement of additional facts. See, e.g.,

Ghertner v. Corp. Env’ts of Ga., Inc., 2020 WL 4551269, at *2 (N.D.

Ga. June 26, 2020) (reviewing cases), adopted by 2020 WL 4577709

(N.D. Ga. July 31, 2020). We afford great deference to a district

court’s interpretation of its local rules. Mann, 588 F.3d at 1302. We

have said that the Northern District of Georgia’s Local Rule 56.1

“protects judicial resources by making the parties organize the

evidence rather than leaving the burden upon the district judge”

and “streamlines the resolution of summary judgment motions by

focusing the district court’s attention on what is, and what is not,

genuinely controverted.” Reese v. Herbert, 527 F.3d 1253, 1268-69

(11th Cir. 2008) (quotation marks and alterations omitted)

(rejecting an argument that Local Rule 56.1(B)(2)(a)(2) conflicts

with Federal Rule of Civil Procedure 56).

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Here, Dr. Adewumi offers no argument on appeal as to

(1) why we should not defer to the district court’s interpretation of

Rule 56.1(B)(2)(b), or (2) how the district court’s application of Rule

56.1(B)(2)(b) to Dr. Adewumi—who was (and still is) represented

by counsel—amounted to an abuse of discretion. Indeed, Dr.

Adewumi’s opening appeal brief does not even acknowledge his

failure to comply with Rule 56.1(B)(2)(b) in the district court.3

Thus, Dr. Adewumi has abandoned any argument on appeal as to

Rule 56.1(B)(2)(b), and we must affirm the district court’s decision

to disregard the facts in his declaration on this ground. See Sapuppo

v. Allstate Floridian Ins. Co., 739 F.3d 678, 680 (11th Cir. 2014)

(“When an appellant fails to challenge properly on appeal one of

the grounds on which the district court based its judgment, he is

deemed to have abandoned any challenge of that ground, and it

follows that the judgment is due to be affirmed.”).

We now turn to the merits of the summary judgment order.

VI. GENERAL PRINCIPLES

Dr. Adewumi claims that the Wellstar defendants

terminated him based on his race, in violation of 42 U.S.C. § 1981. 4

3 We find no merit to Dr. Adewumi’s suggestion in his reply brief that his

“extensive response to each of the contested facts set forth in [Wellstar’s] Rule

56.1 statement,” which was required by Local Rule 56.1(B)(2)(a), was also

sufficient to comply with his separate obligations under Rule 56.1(B)(2)(b).

4 In a prior order granting in part the defendants’ motion to dismiss, the district

court concluded that Dr. Adewumi’s placement on an action plan was not an

adverse employment action but could be considered in conjunction with Dr.

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Under § 1981, intentional race discrimination is prohibited

in employment contracts. Jenkins, 26 F.4th at 1249. Employment

discrimination claims under § 1981 are analyzed using the same

legal framework as disparate treatment claims under Title VII of

the Civil Rights Act of 1964. Id. At summary judgment, there are

two paths an employment discrimination plaintiff can take to

survive summary judgment—the McDonnell Douglas burden-

shifting framework or the “convincing mosaic” approach. See

McCreight v. AuburnBank, 117 F.4th 1322, 1335 (11th Cir. 2024). We

discuss each below.

A. McDonnell Douglas - Prima Facie Case

Under McDonnell Douglas, the plaintiff bears the initial

burden to establish a prima facie case of discrimination. Lewis v. City

of Union City, Ga., 918 F.3d 1213, 1220 (11th Cir. 2019) (en banc). To

make out a prima facie case of discrimination, a plaintiff must show:

(1) that he belongs to a protected class; (2) that he was subjected to

an adverse employment action; (3) that he was qualified to perform

the job in question; and (4) that he was treated less favorably by his

employer than “similarly situated” employees outside the

protected class. Id. at 1220-21.

The district court correctly concluded, under the McDonnell

Douglas framework, that Dr. Adewumi satisfied the first three

Adewumi’s termination as a pretextual justification for his termination. Dr.

Adewumi does not challenge this determination on appeal.

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prongs of a prima facia case of race discrimination but failed to

establish a proper comparator for purposes of the fourth prong.

To establish the fourth prong, the plaintiff must present

evidence of a comparator who is “similarly situated in all material

respects.” Jenkins, 26 F.4th at 1249. What is a “material” similarity

or difference will vary from case to case, but ordinarily a similarly

situated comparator and the plaintiff will “have engaged in the

same basic conduct or misconduct, be subject to the same

employment policies, have the same supervisor(s), and share an

employment or disciplinary history.” Id.

Dr. Adewumi identified as a comparator Dr. Phil Parry, a

white neurosurgeon in the practice group.5 Dr. Adewumi testified

that “Dr. Parry was involved” with “a deviation from the standard

of care” that resulted in complications and that, unlike with Dr.

Adewumi’s complications, “Dr. Benedict did not discuss it in

conference” or “bring it up at all.”

This comparator evidence is insufficient for several reasons.

For starters, Wellstar did not terminate Dr. Adewumi’s

employment because of concerns about his deviations from the

standard of care, but because his action plan placed too great a

strain on the rest of his practice group. To be a proper comparator

and give rise to a presumption of discrimination, Dr. Parry needed

5 Although Dr. Adewumi claimed his “white counterparts had cases that were

clearly outside the standard of care” that were “swept under the rug,” Dr.

Parry was the only comparator Dr. Adewumi was able to identify.

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to have been placed on a similar action plan—i.e., a buddy system

that required other neurosurgeons in the practice group to “take

call” and perform surgeries with him for several months—but was

not terminated. See id. In fact, Dr. Adewumi acknowledged he did

not “know the peer review status” of the neurosurgeons at

Kennestone Hospital.

Additionally, even if we considered the different treatment

of Dr. Adewumi’s and Dr. Parry’s deviations from the standard of

care, this evidence does not establish that Dr. Parry is “similarly

situated in all material respects.” See id. Dr. Parry’s single instance

of deviating from the standard of care is not materially similar to

Dr. Adewumi’s twenty cases referred to the MEC for peer review,

some of which led the MEC to issue letters of inquiry to Dr.

Adewumi, make findings of inappropriate care, send some cases for

external review, and ultimately to place Dr. Adewumi on an action

plan. See Lewis, 918 F.3d at 1225, 1227-28 (explaining that a valid

comparator will have engaged in “the same basic conduct (or

misconduct)” and “will share the plaintiff’s employment and

disciplinary history”).

B. Legitimate Nondiscriminatory Reason

Even assuming arguendo that Dr. Adewumi established a

prima facie case, the burden shifted to the employer to articulate a

legitimate, nondiscriminatory reason for its employment action.

Id. at 1221. If the employer carries this intermediate burden of

production, “the plaintiff must then demonstrate that the

defendant’s proffered reason was merely a pretext for unlawful

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discrimination, an obligation that merges with the plaintiff’s

ultimate burden of persuading the factfinder that [the plaintiff] has

been the victim of intentional discrimination.” Id. (quotation

marks omitted and alteration adopted).

Here, the Wellstar defendants carried their burden.

Specifically, Dr. Muster terminated Dr. Adewumi’s employment

contract because the formal action plan placed too great a strain on

the neurosurgery practice at Kennestone Hospital. In addition to

the deposition testimony of Drs. Muster and Benedict, the Wellstar

defendants submitted declarations from two members of the

neurosurgery practice at Kennestone, Drs. Hsu and Parry, who

supported Dr. Muster’s reason for termination.

C. Pretext

A plaintiff proves pretext by showing that the defendant’s

proffered reason is so weak, implausible, inconsistent, incoherent,

or contradictory that a reasonable factfinder could find the reason

unworthy of credence. Alvarez v. Royal Atl. Devs., Inc., 610 F.3d

1253, 1265 (11th Cir. 2010). If the defendant’s proffered reason is

one that would motivate a reasonable employer to take the adverse

action, the plaintiff “must meet that reason head on and rebut it,”

and cannot prove pretext by merely recasting the defendant’s

reason or by arguing his own business judgment over that of the

defendant’s. Id. at 1265-66. The plaintiff must show both that the

proffered reason was false and that discrimination was the true

reason for the adverse action. St. Mary’s Honor Ctr. v. Hicks, 509

U.S. 502, 515 (1993).

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The district court correctly concluded that Dr. Adewumi did

not present circumstantial evidence that Wellstar’s legitimate,

nondiscriminatory reason for terminating him was pretextual.

Although Dr. Adewumi testified that no one informed him that the

action plan was placing a strain on his fellow neurosurgeons, that

assertion does not refute his colleagues’ statements, and Dr.

Adewumi did not present any evidence that their statements were

false.

Most of Dr. Adewumi’s evidence attempts to show that Dr.

Benedict’s scrutiny and micromanagement of him through the

peer review process was unwarranted and that he (Dr. Adewumi)

was successfully implementing the action plan when he was

terminated. But this evidence fails to address, much less rebut head

on, the reason Dr. Muster gave for terminating Dr. Adewumi. See

Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc)

(stating that “[p]rovided that the proffered reason is one that might

motivate a reasonable employer, an employee must meet that

reason head on and rebut it” to prove pretext).

Dr. Muster terminated Dr. Adewumi’s employment

because the MEC’s action plan—to improve Dr. Adewumi’s

performance and medical care—placed too much strain on the rest

of the neurosurgeons at Kennestone Hospital who had to “take

call” and perform surgeries with Dr. Adewumi while also

managing their own heavy caseloads and who felt that Dr.

Adewumi was not as invested in the action plan as they were. Dr.

Adewumi did not present any evidence that Dr. Muster did not

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honestly believe that the MEC’s action plan was placing too great

a strain on them. See Alvarez, 610 F.3d at 1266 (explaining that

“[t]he 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”). Notably, Drs. Hsu

and Parry averred that on many occasions they shared their

concerns about the strain being placed on the team with their

colleagues, including Dr. Benedict.

Further, Dr. Adewumi did not present evidence that Dr.

Muster harbored a racial animus, such as making derogatory

comments about African Americans. Dr. Adewumi’s testimony

that Dr. Muster called him arrogant and uncaring and that Dr.

Muster “did nothing” when Dr. Benedict called him “arrogant,

lazy, callous, obnoxious” does not support an inference that Dr.

Muster (or Dr. Benedict) harbored a racial animus.

Similarly, to the extent Dr. Adewumi relies on a cat’s paw

theory—that Dr. Benedict targeted him and Dr. Muster merely

accepted “whatever Dr. Benedict told him about” Dr. Adewumi—

he also did not present evidence that Dr. Benedict’s actions were

motivated by a racial animus. See Llampallas v. Mini-Circuits, Lab,

Inc., 163 F.3d 1236, 1249 (11th Cir. 1998) (explaining that under a

cat’s paw theory of liability, the plaintiff must show that the

decisionmaker followed the recommendation of another

individual who was motivated by “discriminatory animus”). In the

district court, Dr. Adewumi pointed to what he called an “indirect

slur” by Dr. Benedict in which Dr. Benedict said he could never

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travel to a Muslim country. Dr. Adewumi also highlighted that he

heard Dr. Benedict criticize the medical skills of two other African-

American surgeons who worked at Wellstar in the past, but there

is no evidence that these criticisms were based on race either.

These comments by Dr. Benedict, without more, do not support a

reasonable inference of racial animus.

In any event, under a “cat’s paw” theory, the plaintiff must

show that the biased non-decisionmaker manipulated the

decisionmaker into terminating him. Wright v. Southland Corp., 187

F.3d 1287, 1304 n.20 (11th Cir. 1999). It is not enough to show that

the decisionmaker considered accurate information from the biased

non-decisionmaker. See id. But at most that is what we have here.

There is no evidence to suggest Dr. Benedict’s report to Dr.

Muster—that the Kennestone neurosurgery team was concerned

about the strain placed on them by the action plan—was

inaccurate. To the contrary, two neurosurgeons confirmed the

accuracy of Dr. Benedict’s report. Therefore, there is no evidence

that Dr. Benedict manipulated Dr. Muster such that any racial bias

Dr. Benedict might have harbored tainted Dr. Muster’s decision.

D. Convincing Mosaic Evidence

Alternatively, under the “convincing mosaic” approach, a

plaintiff still can survive summary judgment by presenting

circumstantial evidence that would permit a reasonable jury to

infer intentional discrimination. Jenkins, 26 F.4th at 1250. “A

plaintiff may establish a convincing mosaic by pointing to evidence

that demonstrates, among other things, (1) suspicious timing,

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ambiguous statements, or other information from which

discriminatory intent might be inferred, (2) systematically better

treatment of similarly situated employees, and (3) pretext.” Id.

(quotation marks omitted).

We agree with the district court that Dr. Adewumi’s

circumstantial evidence, considered as a whole, was insufficient to

survive summary judgment under the alternative “convincing

mosaic” approach. Dr. Adewumi did not identify any suspicious

timings, ambiguous statements, or other information from which

discriminatory intent might reasonably be inferred, and as

discussed above, he did not present evidence of pretext. See id.

On appeal, Dr. Adewumi argues that Dr. Benedict

micromanaged him and subjected his medical errors to more

scrutiny than his white colleagues. While evidence of

“systematically better treatment of similarly situated employees”

can support an inference of discriminatory intent, here Dr.

Adewumi failed to present evidence of how his white counterparts

within the practice group were managed or peer reviewed. See id.

Although Dr. Adewumi testified that Dr. Benedict “buried” his

white colleagues’ complications, he was unable to identify any

instances in which this happened apart from the single instance of

Dr. Parry’s deviation from the standard of care, which Dr. Benedict

did not discuss in conference.

Dr. Adewumi also contends that the neurosurgery practice

did not support him with “a rotation of neurosurgeons at Cobb

[Hospital] from the beginning,” “did nothing to assist him,” and

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then “turned on” him “after agreeing to provide mentorship

through the action plan.” This characterization of what happened

is not supported by the record.

Dr. Adewumi accepted the position as the sole

neurosurgeon at Cobb Hospital understanding that he was tasked

with restarting the neurosurgery line there. Dr. Benedict testified

that at the time the neurosurgery practice was “struggling to cover

the call schedule at Kennestone, and separating a partner from

Kennestone would have increased the call burden to the other

partners, which was already severe.” Once Cobb Hospital’s MEC

decided to place Dr. Adewumi on an action plan, his colleagues at

Kennestone Hospital agreed to mentor him through a “buddy

system” as part of the action plan, after which he would return to

Cobb Hospital. Ultimately, however, the strain this “buddy

system” placed on other neurosurgeons in the practice at

Kennestone was too great and caused disruption within the team.

These undisputed facts do not give rise to an inference of race

discrimination.

VII. CONCLUSION

The district court did not abuse its discretion in declining to

consider Dr. King’s declaration and the facts in Dr. Adewumi’s

declaration. Further, the district court did not err in concluding

that Dr. Adewumi’s circumstantial evidence failed to establish race

discrimination under the McDonnell Douglas framework and did not

otherwise permit a reasonable inference of racially discriminatory

intent under the convincing mosaic approach. Accordingly, we

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affirm the entry of summary judgment in favor of the Wellstar

defendants on Dr. Adewumi’s § 1981 claim.

AFFIRMED.