Sharon Gallimore v. City of Opa-Locka, Florida

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-12241

____________________

SHARON GALLIMORE,

Plaintiff-Appellant,

versus

CITY OF OPA-LOCKA, FLORIDA,

a municipal corporation authorized to do

business under the laws of the State of Florida,

Defendant-Appellee.

____________________

Appeal from the United States District Court

for the Southern District of Florida

D.C. Docket No. 1:22-cv-22526-KMM

____________________

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2 Opinion of the Court 23-12241

Before ROSENBAUM, NEWSOM, and MARCUS, Circuit Judges.

PER CURIAM:

Sharon Gallimore appeals a district court order granting

summary judgment in favor of the City of Opa Locka (“the City”)

in her employment discrimination action brought pursuant to Title

VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e

et seq., and the Age Discrimination in Employment Act of 1967 (the

“ADEA”), 29 U.S.C. § 623(a). Gallimore, who was forty-nine years

old at the relevant time, had been working as the Assistant Chief of

Police for the City when she was demoted to the position of road

officer and her position was taken by a woman younger than forty

years old. Gallimore filed a complaint with the Equal Employment

Opportunity Commission (“EEOC”), alleging that her demotion

was on account of illegal discrimination. Two months after she

filed her complaint, her employment with the City ended. Accord-

ing to the City, she voluntarily abandoned her job, but according

to Gallimore, she was fired. Gallimore filed suit in the Southern

District of Florida alleging that her termination was unlawful retal-

iation under Title VII, and that her demotion and then termination

also constituted unlawful age discrimination in violation of the

ADEA and unlawful gender discrimination in violation of Title VII.

The district court granted summary judgment for the City on all of

Gallimore’s claims.

After careful review, we hold that the district court properly

granted summary judgment for the City on Gallimore’s Title VII

retaliation claim and on her gender discrimination claim too. But

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23-12241 Opinion of the Court 3

because she offered evidence sufficient for a jury to conclude that

her demotion and termination were animated by unlawful age dis-

crimination, the district court erred in granting summary judgment

for the City on Gallimore’s ADEA claim.

I.

These are the basic facts adduced in the summary judgment

record and the procedural history surrounding this case. Sharon

Gallimore is a fifty-one-year-old woman who previously worked

for the Police Department of the City of Opa Locka. Gallimore

joined the City in 1996 as a police officer. Her career there spanned

over twenty-five years, during which time she rose through the

ranks to attain the position of Assistant Chief of Police, the second

highest position in the department, which she held for over twenty

years.

In 2020, the Mayor of Opa-Locka was Matthew Pigatt. Ac-

cording to Gallimore, while she was the Assistant Chief of Police,

Pigatt and other City Commissioners talked about wanting to hire

younger people, and when she attended the “State of the City” ad-

dress by Pigatt, he told the public that “the City needed to bring in

much younger and ‘more energetic’” people. Pigatt also told both

her and the then Chief of Police, James Dobson, that he “wanted

younger people in positions of leadership in the police depart-

ment,” and the City Commissioner Alvin Burke told her “that peo-

ple were tired of the same ‘old people’ and that if the police depart-

ment had young officers, they would not have the health issues that

older officers like [Gallimore] had.” According to Gallimore, her

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4 Opinion of the Court 23-12241

ultimate supervisor, City Manager John Pate, also told her that “he

was feeling pressure[] about firing [Gallimore]” from “[t]he same

Mayor and Commission that demanded younger people.” Pate

was the final decisionmaker with the authority to terminate Gal-

limore.

In early 2020, the City asked the Miami-Dade Police Depart-

ment (“MDPD”) to conduct an organizational review and assess-

ment of the police department. As part of the assessment, the

MDPD interviewed employees and reviewed police department

policies, budgets, and practices. In May 2020, the MDPD released

its findings, which identified multiple problems within the police

department. In particular, the assessment noted that morale was

low and that the “majority of the feedback suggested that the [po-

lice department was] beset by a lack of effective communications

between supervisors and employees, a lack of adherence to rules,

policies and job descriptions, an overabundance of supervisors as

compared to rank-and-file employees, inconsistent or non-existent

accountability, unacceptable levels of sick leave use, and a scarcity

of strategy and planning in guiding the department’s day-to-day op-

erations.”

Gallimore says that after the MDPD assessment came out,

in “May and June, 2020,” Pate told her and Dobson that “there

would be no demotions or adverse actions as a result of the report.”

She claims that Pate and Dobson also both told her “that [her] per-

formance was outstanding and that the report would not impact

[her] job in any way, shape or form.”

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In August 2020, Pate fired Dobson, who was forty-nine years

old at the time of his termination. Then, on October 6, 2020, Gal-

limore was demoted from Assistant Chief of Police to road patrol

officer and her salary was reduced. She was also forty-nine years

old when she was demoted. After demoting Gallimore, Pate ap-

pointed Nikeya Jenkins to fill the Assistant Chief of Police vacancy.

Jenkins is female and was in her mid-thirties at the time of her ap-

pointment.

Sometime in March 2021, Gallimore filed a Charge of Dis-

crimination regarding her demotion with the EEOC. On May 17,

2021, she was no longer employed by the City.

The City claims it did not fire Gallimore but instead she vol-

untarily abandoned her job. According to the City, Gallimore took

sick leave on May 6th, 7th, and 10th, but when she returned to

work on May 11th, her supervisor sent her home because Gal-

limore did not provide “a doctor’s note to substantiate her ab-

sences.” Gallimore did not report to work for the next three days,

which the City claims constituted job abandonment and voluntary

resignation. But according to Gallimore, she did not stay home

voluntarily for those three days. Instead, she says that after she

took sick leave her Supervisor, Michael Steele, “refused to allow

me to come to work and demanded a doctor’s note.” She claims

that “Steele explicitly ordered me to go home and to remain home

and then falsely stated that I abandoned my post.”

On May 17, 2021, the City sent Gallimore a letter outlining

Gallimore’s alleged absences and the City’s acceptance of

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6 Opinion of the Court 23-12241

Gallimore’s “voluntary resignation under Administrative Regula-

tion 1-114.” Eight months later, on January 13, 2022, the City fired

Pate.

On August 9, 2022, Gallimore filed a three-count complaint

in the United States District Court for the Southern District of Flor-

ida alleging that: (1) the City retaliated against her for filing an

EEOC complaint in violation of Title VII; (2) the City discriminated

against her on the basis of her age in violation of the ADEA; and (3)

the City discriminated against her on the basis of gender in viola-

tion of Title VII. After the City moved to dismiss Gallimore’s initial

complaint, she filed an amended complaint that realleged her initial

claims but added a Title VII race discrimination claim against the

City too.

The parties proceeded to discovery. On March 30, 2023, the

City deposed Gallimore. As relevant here, she made several critical

statements during her deposition. First, Gallimore abandoned her

race discrimination claim. Second, when asked about her retalia-

tion claim, Gallimore testified in her deposition that she believed

that the City “retaliated against me because I filed an EEOC com-

plaint,” but that she never told anyone at the City about her EEOC

complaint:

Q: Did you ever have a conversation with anyone at

the City regarding your EEOC complaint?

Gallimore: No.

Q: Okay. Did you ever hear anyone discuss your

EEOC complaint?

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Gallimore: No.

Q: When I say “anyone,” I’m talking about anyone at

the City, okay? Is the answer no?

Gallimore: Yes. It is no. No.

On April 14, 2023, the City moved for summary judgment

on the remaining counts of Gallimore’s amended complaint, argu-

ing that she failed to meet the elements of discrimination or retali-

ation claims under Title VII or the ADEA. In Gallimore’s response

to the City’s motion she attached, among other things, (1) her

sworn declaration dated May 12, 2023; (2) a copy of James Dob-

son’s verified complaint and sworn declaration that was filed in

Dobson v. City of Opa Locka, No: 2020-018694-CA-01 (Fla. 11th Cir.

Ct.) (Dobson’s separate employment discrimination suit against

the City); and (3) a copy of John Pate’s verified complaint and

sworn declaration that was filed in Pate v. City of Opa Locka, No:

2022-001586-CA-01 (Fla. 11th Cir. Ct.) (Pate’s separate employ-

ment discrimination suit against the City).

Gallimore’s sworn declaration reiterated many of the same

allegations that the City demoted her because of her age and gen-

der and fired her because of her age, her gender, and in retaliation

for filing an EEOC complaint. But as for her retaliation claim, Gal-

limore’s sworn declaration stated, “I told Human Resources Direc-

tor Kierra Ward when I filed my EEOC Complaint and she said she

would discuss it with the Manager because I was complaining

about discrimination in my employment.” Gallimore did not ex-

plain in her sworn statement why she had denied speaking to

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8 Opinion of the Court 23-12241

anyone at the City about her EEOC Complaint during her earlier

deposition.

Dobson’s sworn declaration said that Pate “was not the sole

decision maker on police personnel issues and was heavily influ-

enced and intimidate[d] by Mayor [Pigatt] and City Commission-

ers.” Dobson also attested that he “personally observed” times

when Mayor Pigatt “at City meetings and in private meetings

stated that he wanted younger leadership in the police force.” Fur-

ther, Dobson stated that Gallimore “had an unblemished record of

outstanding service,” and when the MDPD’s assessment was done

“there were no criticisms of Sharon Gallimore” and the assessment

“was not a basis for any demotions or adverse action against Sha-

ron Gallimore.”

Finally, both Pate’s complaint and sworn statement alleged

that “Commissioner Burke and Mayor Pigatt repeatedly pressured

[Pate] to terminate Police Chief James Dobson because of Dob-

son’s refusal to make police personnel moves at their direction in

violation of the City Charter.”

The district court granted the City’s motion for summary

judgment on all counts on June 16, 2023. Gallimore timely ap-

pealed the district court’s decision.

II.

This Court reviews a grant of summary judgment de novo,

viewing the facts and drawing all reasonable inferences in favor of

the nonmoving party. Rosario v. Am. Corrective Counseling Servs.,

Inc., 506 F.3d 1039, 1043 (11th Cir. 2007). Summary judgment is

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23-12241 Opinion of the Court 9

appropriate when “there is no genuine dispute as to any material

fact” and the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(a). A genuine issue of material fact exists

when “the evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986).

A.

Starting with Count I, we are satisfied that the district court

correctly granted summary judgment on Gallimore’s retaliation

claim. Title VII makes it unlawful for an employer to retaliate

against an employee “because [she] has opposed any . . . unlawful

employment practice.” 42 U.S.C. § 2000e-3(a). In the Eleventh Cir-

cuit, a Title VII retaliation claim based on circumstantial evidence

“is ordinarily analyzed under the McDonnell Douglas burden-shifting

framework.” Tolar v. Bradley Arant Boult Commings, LLP, 997 F.3d

1280, 1289 (11th Cir. 2021). However, a Title VII plaintiff can also

survive summary judgment if she is able to present a “convincing

mosaic of circumstantial evidence that would allow a jury to infer

intentional discrimination by the decisionmaker.” Tynes v. Fla.

Dep’t of Juv. Just., 88 F.4th 939, 946 (11th Cir. 2023), cert. denied, 145

S. Ct. 154 (2024) (quoting Smith v. Lockheed-Martin Corp., 644 F.3d

1321, 1328 (11th Cir. 2011)); Berry v. Crestwood Healthcare LP, 84

F.4th 1300, 1313 (11th Cir. 2023). Gallimore has failed to meet the

requirements of either framework.

i.

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10 Opinion of the Court 23-12241

In order to meet the McDonnell Douglas framework, “the

plaintiff first must establish a prima facie case of retaliation by

showing that: (1) she engaged in statutorily protected conduct --

that is, conduct protected by Title VII; (2) she suffered an adverse

action; and (3) ‘there is some causal relationship between the two

events.’” Tolar, 997 F.3d at 1289 (quoting Johnson v. Miami-Dade

County, 948 F.3d 1318, 1325 (11th Cir. 2020)).

Once an employee successfully makes a prima facie show-

ing, the burden shifts to the employer to articulate legitimate, non-

discriminatory reasons for its actions. Sullivan v. Nat’l R.R. Passen-

ger Corp., 170 F.3d 1056, 1059 (11th Cir. 1999). If the employer ar-

ticulates a legitimate reason, the burden shifts back to the em-

ployee to “show that the employer’s proffered reasons for taking

the adverse action were actually a pretext for prohibited retaliatory

conduct.” McCann v. Tillman, 526 F.3d 1370, 1375 (11th Cir. 2008)

(quoting Sullivan, 170 F.3d at 1059). In order to do so, a plaintiff

must demonstrate “such weaknesses, implausibilities, inconsisten-

cies, incoherencies, or contradictions in the employer’s proffered

legitimate reasons for its action that a reasonable factfinder could

find them unworthy of credence.” Id. (quoting Cooper v. S. Co., 390

F.3d 695, 725 (11th Cir. 2004)). “If the plaintiff does not proffer suf-

ficient evidence to create a genuine issue of material fact regarding

whether each of the defendant employer’s articulated reasons is

pretextual, the employer is entitled to summary judgment on the

plaintiff’s claim.” Chapman v. AI Transp., 229 F.3d 1012, 1024–25

(11th Cir. 2000).

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The district court granted summary judgment on Gal-

limore’s retaliation claim because it found that she failed to estab-

lish the causal element of a prima facie case for Title VII retaliation.

The court noted that the only causal evidence Gallimore had prof-

fered was the temporal proximity of some two months between

her protected conduct (filing an EEOC complaint) and the adverse

employment action (her termination), and held that “[a]lleging

temporal proximity alone is insufficient to demonstrate causation

for the purposes of a retaliation claim.”

This Court has made it clear that “[t]he burden of causation

can be met by showing close temporal proximity between the stat-

utorily protected activity and the adverse employment action,”

Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007),

but we have “cautioned that ‘mere temporal proximity, without

more, must be very close’ to suggest causation.” Jefferson v. Sewon

Am., Inc., 891 F.3d 911, 926 (11th Cir. 2018) (quoting Thomas, 506

F.3d at 1364). “[I]n the absence of other evidence tending to show

causation, if there is a substantial delay between the protected ex-

pression and the adverse action, the complaint of retaliation fails as

a matter of law.” Thomas, 506 F.3d at 1364. While “an employee’s

termination within days -- or at the most within two weeks -- of

[her] protected activity can be circumstantial evidence of a causal

connection between the two,” Jefferson, 891 F.3d at 926, a gap of

multiple months, in the absence of some other evidence of retalia-

tion, is too large a temporal gap. Johnson, 948 F.3d at 1328 (holding

that temporal proximity of nearly two months is “insufficient,

standing alone, to establish pretext”); Thomas, 506 F.3d at 1364

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(holding that a three month period between the protected activity

and adverse employment action did not “rise to the level of ‘very

close,’” and in the absence of other evidence, could not establish a

causal connection) (quoting Clark County Sch. Dist. v. Breeden, 532

U.S. 268, 273 (2001)).

The district court correctly determined that Gallimore failed

to meet the requirements of the McDonnell Douglas framework.

This is not a case where temporal proximity alone is sufficient to

establish a causal connection between the protected activity and

the adverse employment action. Gallimore filed her EEOC com-

plaint sometime in March 2021 and her termination occurred on

May 17, 2021. 1 There were roughly two months between her pro-

tected conduct and the adverse employment action. “[I]n the ab-

sence of other evidence tending to show causation,” this temporal

gap is insufficient to meet the “burden of causation.” Thomas, 506

F.3d at 1364.

On appeal, Gallimore argues that she offered causal evi-

dence beyond temporal proximity. She cites to her May 12, 2023,

sworn declaration where she claims “that she told Human

1 The City also argues that Gallimore did not suffer adverse employment ac-

tion because she was not terminated by the City but instead voluntarily re-

signed by not reporting to work for three days. However, Gallimore contends

that her supervisor tricked her into staying home and then claimed she aban-

doned her job. Accepting Gallimore’s testimony as true, as we must when

reviewing a grant of summary judgment, the termination of an employee con-

stitutes an adverse employment action for the purposes of Title VII. See Craw-

ford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008).

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Resources Director Kierra Ward when she had filed her EEOC

Complaint and Ward said she would discuss it with the manager.”

But this evidence is belied by Gallimore’s prior deposition testi-

mony where she clearly and repeatedly denied discussing her

EEOC complaint with “anyone at the City.”

Although we do not weigh conflicting evidence when re-

viewing a grant of summary judgment, we have recognized some

circumstances where a court may “disregard an affidavit as a mat-

ter of law when, without explanation, it flatly contradicts his or her

own prior deposition testimony for the transparent purpose of cre-

ating a genuine issue of fact where none existed previously.” Fur-

cron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1306 (11th Cir. 2016).

“When a party has given clear answers to unambiguous questions

which negate the existence of any genuine issue of material fact,

that party cannot thereafter create such an issue with an affidavit

that merely contradicts, without explanation, previously given

clear testimony.” Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc.,

736 F.2d 656, 657 (11th Cir. 1984). Although “this rule is applied

sparingly because of the harsh effect it may have on a party’s case,”

Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1316 (11th Cir.

2007) (citation modified), a “flat contradiction to [an] earlier depo-

sition” that is left unexplained is “inadequate to raise a genuine is-

sue of fact which was denied to exist by the earlier deposition,” Tip-

pens v. Celotex Corp., 805 F.2d 949, 953 (11th Cir. 1986).

Gallimore’s sworn declaration directly contradicts a clear

answer she gave multiple times to unambiguous deposition

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14 Opinion of the Court 23-12241

questions. When she was deposed, she was asked three times

whether she spoke to anyone at the City about her EEOC com-

plaint or whether she had heard anyone discussing her EEOC com-

plaint. Each time she said no. Yet just over a month after her dep-

osition, she filed a statement claiming that she spoke with Ward

about her EEOC complaint. Gallimore offers no explanation for

this inconsistency with her prior testimony, and we see no reason

to credit a transparent design to create a genuine issue of fact.

In short, the only evidence Gallimore has offered of a causal

connection between her protected conduct and the adverse em-

ployment action is a temporal gap of several months. She has not

provided us with any other causal evidence that would support a

jury’s finding that the City retaliated against Gallimore because she

filed an EEOC complaint. She therefore failed to meet the McDon-

nell Douglas standard for Title VII retaliation.

ii.

Gallimore also has failed to present “a convincing mosaic of

circumstantial evidence” that would allow a reasonable jury to in-

fer retaliation by the City. Lewis v. City of Union City, 934 F.3d 1169,

1185 (11th Cir. 2019) (Lewis II) (citation omitted).

“A plaintiff proving her case through the convincing mosaic

standard may point to any relevant and admissible evidence.”

Tynes, 88 F.4th at 946 n.2. “Evidence that is likely to be probative

is evidence that demonstrates, among other things, (1) suspicious

timing, ambiguous statements, or other information from which

discriminatory intent may be inferred, (2) systematically better

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

tation modified). “[N]o matter its form, so long as the circumstan-

tial evidence raises a reasonable inference that the employer dis-

criminated against the plaintiff, summary judgment is improper.”

Smith, 644 F.3d at 1328.

Gallimore has failed to provide sufficient circumstantial evi-

dence for a reasonable jury to infer that the City fired her in retali-

ation for her EEOC complaint. Again, Gallimore’s claim of retali-

ation turns on the observation that she was terminated some two

months after she filed her EEOC complaint. But, as we’ve ex-

plained, a temporal gap of two months is insufficient standing

alone to show that an adverse employment action was taken in re-

taliation for an employee’s protected conduct. Gallimore has of-

fered no statements about her EEOC complaint by her manager,

or from anyone else, nor has she proffered any other circumstantial

evidence that would allow a jury to infer that her termination was

retaliation for her protected conduct. Other than Gallimore’s be-

lated declaration that she spoke with Kierra Ward about her EEOC

complaint, which we have disregarded, there is no evidence that

anyone at the City even knew about Gallimore’s EEOC complaint.

Since Gallimore has failed to create a triable issue concern-

ing the City’s retaliatory intent, summary judgment was properly

granted on her Title VII retaliation claim.

B.

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16 Opinion of the Court 23-12241

Turning to Gallimore’s age discrimination claim, however,

we conclude that the district court erred in granting the City’s mo-

tion for summary judgment on this charge.

The ADEA forbids age discrimination in the employment of

persons of at least forty years of age. See 29 U.S.C. § 631. A plaintiff

can show age discrimination “through either direct or circumstan-

tial evidence.” Liebman v. Metro. Life Ins. Co., 808 F.3d 1294, 1298

(11th Cir. 2015). Where there is no direct evidence of discrimina-

tion, a plaintiff can survive summary judgment either by establish-

ing the elements of the McDonnell Douglas test for discrimination or

by presenting a “convincing mosaic of circumstantial evidence that

would allow a jury to infer intentional discrimination by the deci-

sionmaker.” Tynes, 88 F.4th at 946 (citation omitted). Gallimore

presented circumstantial evidence sufficient to meet her burden as

to both methods.

i.

Turning first to the McDonnell Douglas test, one way a plain-

tiff can establish a prima facie case under the ADEA with circum-

stantial evidence is by proving “(1) that [she] is a member of the

protected group; (2) that adverse employment action was taken

against [her], e.g. discharge, demotion, or failure to hire; (3) that

[she] was replaced by a person outside the protected group; and (4)

that [she] was qualified for the position for which [she] was re-

jected.” Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989)

(footnote omitted). However, as for the final prong, “[o]ur caselaw

quite clearly instructs that plaintiffs, who have been discharged

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from a previously held position, do not need to satisfy the McDon-

nell Douglas prong ‘requiring proof of qualification’” because

“where a plaintiff has held a position for a significant period of time,

qualification for that position sufficient to satisfy the test of a prima

facie case can be inferred.” Damon v. Fleming Supermarkets of Fla.,

Inc., 196 F.3d 1354, 1360 (11th Cir. 1999) (quoting Young v. Gen.

Foods Corp., 840 F.2d 825, 830 n.3 (11th Cir. 1988)).

Once a plaintiff establishes a prima facie case of discrimina-

tion, it “in effect creates a presumption that the employer unlaw-

fully discriminated against the employee,” and “shift[s] to the em-

ployer the burden of producing legitimate, nondiscriminatory rea-

sons for the challenged employment action.” Combs, 106 F.3d at

1528 (citation omitted). To satisfy this burden, “the employer need

only produce admissible evidence which would allow the trier of

fact rationally to conclude that the employment decision had not

been motivated by discriminatory animus.” Id. (citation omitted).

Once an employer does so, the presumption of discrimination is

eliminated, and “the plaintiff has the opportunity to come forward

with evidence, including the previously produced evidence estab-

lishing the prima facie case, sufficient to permit a reasonable fact-

finder to conclude that the reasons given by the employer were not

the real reasons for the adverse employment decision.” Id.

As we see it, Gallimore provided sufficient evidence to es-

tablish a prima facie case of age discrimination under the ADEA.

First, she was forty-nine years old at the time and therefore part of

the protected class. Second, adverse employment actions were

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18 Opinion of the Court 23-12241

taken against her when she was demoted and then terminated from

the police force. Third, she was replaced by someone outside of

the protected group because Jenkins was in her mid-thirties at the

time she took Gallimore’s position. Fourth, Gallimore was quali-

fied for the position she lost because she successfully held it for over

twenty years.

The district court erroneously found that Gallimore failed to

establish a prima facie case of age discrimination because she did

not identify a valid comparator. However, our case precedent has

made it clear that a Plaintiff does not need to identify a comparator

if she shows that she was “replaced by or otherwise lost a position

to a younger individual.” Chapman, 229 F.3d at 1024; see also

Maynard v. Bd. of Regents of Div. of Univs. of Fla. Dep’t of Educ. ex rel.

Univ. of S. Fla., 342 F.3d 1281, 1289 (11th Cir. 2003) (explaining that

McDonnell Douglas requires a plaintiff to show she “was replaced by

a person outside [her] protected class or was treated less favorably

than a similarly-situated individual outside [her] protected class”)

(emphasis added)). Gallimore was replaced by someone who was

younger than forty years old and therefore outside of the ADEA’s

protected class.

Since Gallimore has established a prima facie case of age dis-

crimination under the ADEA, we turn to the City’s burden to pro-

vide a non-discriminatory reason for her demotion and subsequent

termination. To explain Gallimore’s demotion, the City points to

the assessment of its police department conducted by the MDPD,

and notes its finding that “a majority of the feedback suggested that

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the [City’s police] department [was] beset by a lack of effective

communications between supervisors and employees, a lack of ad-

herence to rules, policies, and job descriptions, an overabundance

of supervisors as compared to rank-and-file employees, incon-

sistent or non-existent accountability, unacceptable levels of sick

leave use, and a scarcity of strategy and planning in guiding the de-

partment’s day-to-day operations.” As for Gallimore’s termina-

tion, the City claims that on May 11, 2021, Gallimore was sent

home from work by her supervisor for failing to provide “a doctor’s

note to substantiate her absences from earlier in the week,” and

then she did not call out or report to work for the next three days,

which constituted job abandonment.

The City provided legitimate, non-discriminatory reasons

for Gallimore’s demotion and subsequent termination which could

permit a trier of fact to reasonably conclude that the City’s actions

were not motivated by discriminatory animus. However, Gal-

limore also introduced evidence sufficient for a reasonable fact-

finder to find that those reasons were pretextual and the real reason

for the City’s adverse employment actions was age discrimination.

First, according to Gallimore’s sworn statement and deposition tes-

timony, the Mayor and City Commissioners made multiple dis-

criminatory remarks about her age and their desire to hire younger

police officers. These remarks included Mayor Pigatt saying that

he “wanted younger people in positions of leadership in the police

department” and that “the City needed to bring in much younger

and ‘more energetic’” employees, as well as City Commissioner Al-

vin Burke telling Gallimore “that people were tired of the same ‘old

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20 Opinion of the Court 23-12241

people’ and that if the police department had young officers, they

would not have the health issues that older officers like [Gallimore]

had.”

Gallimore also pointed out that the MDPD’s assessment was

made more than five months before her demotion and a year be-

fore her termination, and she offered evidence that after the assess-

ment both Pate and Dobson assured her that her performance as

Assistant Chief of Police “was outstanding” and that the assessment

would not impact her job “in any way, shape or form.” Gallimore

also never wavered from her claim that she was tricked into staying

home for three days so that the City could falsely claim she aban-

doned her job.

Gallimore’s claims are reinforced by Dobson’s sworn decla-

ration that Mayor Pigatt stated several times that he wanted to hire

younger police officers, as well as Dobson’s testimony that the

MDPD’s assessment “was not a basis for any demotions or adverse

action against Sharon Gallimore.” Gallimore, Dobson, and Pate all

also agree that the City Commissioners and the Mayor improperly

pressured Pate to make police personnel moves. Accepting this ev-

idence to be true, as we must at this stage in the proceedings, a

reasonable jury could find that the City’s proffered reasons for Gal-

limore’s demotion and then termination were pretexts for age dis-

crimination.

Because Gallimore properly met the elements of the McDon-

nell Douglas framework, we think it was error to grant the City’s

motion for summary judgment on her age discrimination claim.

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23-12241 Opinion of the Court 21

ii.

There is a second, independent reason why it was error to

grant summary judgment on this claim. As we’ve observed, the

failure to meet the elements of the McDonnell Douglas framework

does not necessarily doom a Plaintiff’s age discrimination claim.

“[E]stablishing the elements of the McDonnell Douglas framework is

not, and never was intended to be, the sine qua non for a plaintiff to

survive a summary judgment motion in an employment discrimi-

nation case.” Smith, 644 F.3d at 1328. “Even without similarly sit-

uated comparators, the plaintiff will always survive summary judg-

ment if he or she presents circumstantial evidence that creates a

triable issue concerning the employer’s discriminatory intent.”

Lewis II, 934 F.3d at 1185 (citation modified). Again, a triable issue

“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 intentional discrimination by the deci-

sionmaker.’” Smith, 644 F.3d at 1328 (citation modified).

Gallimore provided a mosaic of circumstantial evidence that

raises a triable issue concerning the City’s discriminatory intent.

Again, she has presented discriminatory statements demonstrating

ageist animus on the part of the Mayor and City Commissioners.

She has offered evidence that the Mayor and City Commissioners

improperly pressured her supervisor, Pate, to demote and termi-

nate both her and Dobson. Dobson, like Gallimore, was forty-nine

years old when the City terminated him. Finally, if we accept as

true, as we must, Gallimore’s testimony that the City tricked her

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22 Opinion of the Court 23-12241

into staying home in order to falsely claim that she abandoned her

job, there is sufficient evidence to permit a reasonable jury to find

that the City’s offered justification for her termination is pretextual.

This evidence, when viewed in whole, “coalesces into a mosaic of

circumstantial evidence sufficient to create a triable issue of mate-

rial fact” as to whether the City was motivated by age discrimina-

tion when it demoted and then terminated Gallimore. Lewis II, 934

F.3d at 1189.

For all these reasons, we find that the district court erred by

granting the City’s motion for summary judgment on Gallimore’s

age discrimination claim.

C.

Turning to Gallimore’s final claim, gender discrimination,

the district court properly granted summary judgment for the City.

Title VII makes it unlawful for an employer “to fail or refuse to hire

or to discharge any individual, or otherwise to discriminate against

any individual with respect to his compensation, terms, conditions,

or privileges of employment, because of such individual’s . . . sex.”

42 U.S.C. § 2000e-2(a)(1). As with age discrimination and retalia-

tion claims, this Court typically follows the same McDonnell Douglas

framework when evaluating a claim of sex discrimination based on

circumstantial evidence. A plaintiff can also survive summary

judgment by presenting “a convincing mosaic of circumstantial ev-

idence that would allow a jury to infer intentional discrimination.”

Lewis II, 934 F.3d at 1185 (citation omitted). The district court

properly granted summary judgment on Gallimore’s gender

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23-12241 Opinion of the Court 23

discrimination claim, because her evidence of sex discrimination

did not meet either standard.

Under McDonnell Douglas, a plaintiff must first establish a

prima facie case of discrimination, which includes demonstrating

either that she was replaced by someone of a different gender or

that she was treated less favorably because of her gender when

compared to similarly situated male employees. McDonnell Douglas

Corp v. Green, 411 U.S. 792, 802 (1973). The comparators need not

be “identical” to the plaintiff but for their gender, but they must be

“similarly situated in all material respects.” Lewis v. City of Union

City, 918 F.3d 1213, 1227–28 (11th Cir. 2019) (en banc) (Lewis I).

Generally, a similarly situated comparator will have: (1) engaged in

the same basic conduct as the plaintiff; (2) been subjected to the

same employment policy, guideline, or rule as the plaintiff; (3)

worked under the same supervisor as the plaintiff; and (4) shared

the plaintiff’s employment or disciplinary history. Id. In other

words, “a plaintiff and her comparators must be sufficiently similar,

in an objective sense, that they ‘cannot reasonably be distin-

guished.’” Id. at 1228 (quoting Young v. United Parcel Serv., Inc., 575

U.S. 206, 231 (2015)).

Gallimore failed to meet this element of the McDonnell Doug-

las framework. When Gallimore was demoted from Assistant

Chief of Police, she was replaced by a woman, and there is no evi-

dence in this record that when Gallimore was terminated as a road

officer her position was taken by a man. As for comparators, Gal-

limore argues on appeal that “an abundance of males (Bosque,

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24 Opinion of the Court 23-12241

Perez) who were fired and criminally prosecuted and had a record

for misconduct, replaced her in senior police positions.” But the

record is unclear as to what positions these men held, what their

responsibilities were, or who their supervisors were when they

were promoted. We cannot tell whether they shared Gallimore’s

employment history or engaged in the same basic conduct as she.

Gallimore failed to demonstrate that she and her comparators were

“similarly situated in all material respects.” Lewis I, 918 F.3d at

1229. Thus, the district court did not err when it determined that

Gallimore failed to meet the elements of the McDonnell Douglas

framework because she did not establish a prima facie case of gen-

der discrimination. Nor has Gallimore offered any other evidence

that would create “a convincing mosaic of circumstantial evidence”

sufficient to allow a reasonable factfinder to infer intentional dis-

crimination on account of gender. Lewis II, 934 F.3d at 1185 (cita-

tion omitted).

AFFIRMED IN PART AND REVERSED AND

REMANDED IN PART.