Sherita Langston v. Lookout Mountain Community Services

Case: 17-15081 Date Filed: 06/05/2019 Page: 1 of 20

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 17-15081

________________________

D.C. Docket No. 4:16-cv-00239-HLM

SHERITA LANGSTON,

Plaintiff - Appellant,

versus

LOOKOUT MOUNTAIN COMMUNITY SERVICES,

Defendant - Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

________________________

(June 5, 2019)

Before WILSON, JILL PRYOR and TALLMAN, * Circuit Judges.

PER CURIAM:

*

Honorable Richard C. Tallman, United States Circuit Judge for the Ninth Circuit, sitting

by designation.

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An employee fired by a Georgia community service board, a public agency

serving people with severe disabilities and addiction, sued her employer for failure

to pay overtime wages under the Fair Labor Standards Act (“FLSA”) and wrongful

termination under 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964, and

the FLSA. The district court granted summary judgment to the employer. After

careful review and with the benefit of oral argument, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant Lookout Mountain Community Services (“Lookout”) provides

mental health, addictive diseases, and developmental disabilities services in

northwest Georgia. Lookout hired plaintiff Sherita Langston to be the House

Manager for Flintstone, a home for a severely mentally and physically disabled

resident. While Langston was employed by Lookout, Jan Lewis was Langston’s

supervisor, Janice Sabo was Lookout’s Director of Human Resources, Michael

Free was Lookout’s Behavioral Health Director, and Tom Ford was Lookout’s

CEO.

Langston earned $26,000 per year based on a 40-hour work week; classified

as exempt, she earned no overtime pay. Before the patient’s arrival at Flintstone,

Langston worked no more than 40 hours per week, but once the patient moved into

Flintstone, Langston had to work longer hours, and she shared her discontent about

the lack of overtime pay with her supervisor, Lewis.

2

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As House Manager, Langston worked with employees known as instructors

who earned $18,500 per year plus compensatory time off for hours exceeding 40

hours per week, except for the month Langston was fired, when they received

overtime pay instead. Langston’s duties included:

• Ensuring adequate staffing and supplies: Langston set schedules for the

instructors and licensed practical nurses; ensured all shifts had enough people

working; and reviewed time records submitted by instructors, signed off on

them, and forwarded them to the proper department. Around the clock, at

least two staff—either two instructors or one instructor and one licensed

practical nurse—were on duty at Flintstone.

• Assigning staff to perform tasks: Langston directed staff to wake, dress,

and feed the patient, help him use the bathroom and exercise, change the

linens on his bed, purchase groceries for Flintstone, take out the garbage, and

ensure that the patient was being fed according to a specific menu and at

appropriate times.

• Disciplining and evaluating staff: Langston disciplined staff, including

sending Flintstone-wide e-mails warning staff not to: smoke on the property,

use Lookout’s wifi on personal devices, consume food meant for the patient,

and teach the patient to make derogatory comments. She held at least one in-

person meeting to order a staffer to work when scheduled and communicate

respectfully with other staff and Langston. Had Langston not been terminated

five months into the job, she would have created for each member of the

Flintstone staff performance management forms, which Lookout uses in its

annual evaluation process to determine promotions and pay raises.

• Promoting safety: Langston conducted drills required by Lookout’s health

and safety department.

• Communicating with Lookout: Langston participated in weekly conference

calls with Lewis, Free, Ford, the Georgia Advocacy Office, the Regional

Board Office, the Georgia Department of Behavioral Health and

Developmental Disabilities, and the patient’s mother to discuss the patient’s

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care. Langston regularly e-mailed her supervisors regarding the patient’s care

and Flintstone activities.

• Making recommendations on hiring: Langston interviewed job applicants

for instructor and licensed practical nurse positions and made

recommendations on whom to hire. After Langston recommended that

Lookout hire Pennie Callahan, Heather Saine, and Blake Winslett, Lookout

offered them jobs, and Saine accepted. After Langston recommended against

hiring Sarah Carson for Flintstone because she lacked the medical experience

needed to work independently, Lookout hired her to work not at Flintstone

but at an outpatient clinic under direct supervision of experienced nurses.1

On a Friday evening, after learning that one of the staff, Kassondra McClure,

could not work at Flintstone that weekend, Langston so informed Lewis over the

phone. Lewis told Langston, “[Y]ou’ll have to work to cover it.” Doc. 59-3 at

15.2 The following Monday, Lewis e-mailed Free and Sabo to inform them that

she had directed Langston to work at Flintstone the past weekend, but that when

Lewis called Flintstone on Saturday morning, the staffer who answered the phone

told her that Langston was not there. Lewis closed her e-mail with “Want to let

you know that Sherita did not appear to work over the weekend as I directed her to

on Friday night.” Doc. 57-3 at 64.

1

Langston recommended that Lookout hire Jennifer Cone, but the record sheds no light

on whether Lookout acted on Langston’s recommendation.

2

“Doc. #” refers to the numbered entry on the district court’s docket.

4

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Lewis recommended to Sabo that Lookout fire Langston. On Tuesday, Ford

met with Lewis, Free, and Sabo, at which time Ford, who was the ultimate decision

maker, decided to terminate Langston. Ford testified as follows:

• Ford, Lewis, Free, and Sabo discussed how “the supervisor [Langston] did

not follow a command by a manager [Lewis], which is insubordination in my

sense. She did not follow the command. She did not work, and she pulled in

another employee. So Jan Lewis indicated she had told Sherita to work.

Sherita did not work.” Doc. 62 at 149.

• When asked, “Would that have been fine if she [Langston] had brought in

nursing staff?” Ford responded, “Yes, it would have been” and “[S]he had

that authority. She could have recommended that.” Id. at 151.

• Langston was terminated because of “[i]nsubordination” and “[f]ailure to

adequately cover the site.” Id. at 153.3

• When asked, “[I]f she [Langston] says what she was told is [‘]someone’s got

to cover that,[’] that’s different than what you heard from Jan, correct?” Ford

responded, “That’s correct.” Id. at 175. But when asked “What you were

told?” [sic] Ford responded, “I was told by Jan that she [Langston] was told

to work. She did not work.” Id.

• When he decided to fire Langston, Ford knew that Langston had expressed

discontent to Lewis about not receiving overtime pay.

Lookout fired Langston that Tuesday. This was the first and only time she had

ever faced discipline while employed at Lookout.

Langston sued Lookout for failure to pay overtime wages in violation of the

FLSA and for retaliation for engaging in protected activity in violation of

3

Ford also testified that Langston had been overworking the staff and putting the staff “at

risk by working them that many hours.” Doc. 62 at 153.

5

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42 U.S.C. § 1981, Title VII, and the FLSA. 4 Lookout moved for summary

judgment on all claims, and Langston moved for summary judgment on her FLSA

retaliation claim. The magistrate judge recommended granting Lookout’s motion

in full and denying Langston’s motion. The district court adopted the magistrate

judge’s recommendation and granted summary judgment to Lookout. Langston

appealed.

II. STANDARD OF REVIEW

This Court reviews de novo a district court’s grant of summary judgment.

Brown v. Crawford, 906 F.2d 667, 669 (11th Cir. 1990).

III. ANALYSIS

We affirm the grant of summary judgment to Lookout and the denial of

Langston’s partial motion for summary judgment. Langston’s § 1981 retaliation

claim fails because she neglected to sue under § 1983. Her Title VII retaliation

claim fails because she neglected to satisfy the statutory prerequisite requiring her

to obtain a right-to-sue letter from the U.S. Attorney General or demonstrate her

entitlement to equitable waiver. Her FLSA overtime compensation claim fails

because she has raised no genuine dispute as to whether she was properly classified

as an exempt employee not entitled to overtime pay. Her FLSA retaliation claim

4

Langston withdrew her § 1981 and Title VII race discrimination claims.

6

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fails because there is no genuine dispute that Ford terminated her based on his

understanding that she was insubordinate.5

A. Langston’s § 1981 Retaliation Claim Fails Because Lookout Is a

Government Agency That Must Be Sued Under § 1983.

In Jett v. Dallas Independent School District, the Supreme Court held that

42 U.S.C. § 1983 provides the exclusive damages remedy for violations of § 1981

by a local government actor; § 1981 creates rights but provides no independent

federal cause of action for a damages remedy when a government actor is the

alleged wrongdoer. 491 U.S. 701, 731, 733, 735 (1989). Langston insists that

Lookout is not an agent of the State of Georgia based on the analytical framework

delineated in Manders v. Lee, 338 F.3d 1304 (11th Cir. 2003) (en banc), which is

used to determine whether a party is an “arm of the state” for purposes of Eleventh

Amendment immunity. Id. at 1309. Lookout does not, however, invoke Eleventh

Amendment immunity, so Langston’s argument based on Manders is irrelevant to

determining whether Jett required her to sue under § 1983.6 As long as Lookout is

5

Langston’s argument that summary judgment violates the Seventh Amendment

contradicts longstanding Supreme Court caselaw. See Parklane Hosiery Co. v. Shore, 439 U.S.

322, 336 (1979) (noting that “summary judgment does not violate the Seventh Amendment” and

citing Fid. & Deposit Co. of Md. v. United States, 187 U.S. 315, 319-20 (1902)). We therefore

summarily reject this argument.

6

Langston’s reliance on Miller v. Advantage Behavioral Health Systems, 677 F. App’x

556 (11th Cir. 2017) (unpublished), is also futile. Setting aside that Miller is nonbinding, we

note that it concerned whether community service boards were arms of the state for Eleventh

Amendment immunity purposes; it contained no analysis of whether Jett requires community

service boards to be sued under § 1983. Id. at 558-59, 565.

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a government actor—regardless of whether it acts on behalf of the State of Georgia

or a political subdivision—Langston’s failure to sue under § 1983 means that Jett

bars her claim that her § 1981 rights were violated.7

We conclude that Lookout is a government actor. Langston concedes that

Lookout “is a Community Service Board.” Appellant’s Initial Br. at 12. Because

the state legislature established community service boards as “public agencies,”

“instrumentalit[ies] of the state,” O.C.G.A. § 37-2-6(a), and “public bod[ies],” id.

§ 37-2-6.3(a),8 Lookout is a government actor. A community service board loses

7

Beyond Jett, damages suits against state-level actors face another barrier: Because “a

State is not a person within the meaning of § 1983,” a plaintiff may not sue a state-level actor for

damages under § 1983. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989); see also

Howlett ex rel. Howlett v. Rose, 496 U.S. 356, 365 (1990) (“Will establishes that the State and

arms of the State . . . are not subject to suit under § 1983 in either federal court or state court.”).

A plaintiff may, however, seek injunctive relief against a state official in his or her official

capacity. See Will, 491 U.S. at 71 n.10 (citing Ex parte Young, 209 U.S. 123, 159-60 (1908)).

Combined, Will and Jett constrained Langston’s options: either she needed to sue Lookout under

§ 1983 for violations of § 1981, or she needed to show that Lookout is a private actor, which

would have permitted her to sue directly under § 1981. She failed to comply with the first option

because she neglected to sue under § 1983, and she cannot avail herself of the second option

because she has raised no genuine dispute as to Lookout’s status as a government actor.

Langston argues that she “has alleged from the very start that the [§ 1981] claim is brought

against a ‘private or independent employer,’ thereby denying that [Lookout] is a ‘government

body’ or a ‘government entity,’” and quotes paragraph 34 of her original complaint. Appellant’s

Reply Br. at 19 (alteration adopted). At summary judgment, however, Langston may not rely on

her pleadings to raise a genuine dispute as to Lookout’s status as a government versus a private

actor. See Rich v. Dollar, 841 F.2d 1558, 1562 (11th Cir. 1988) (“Because this is an appeal of a

[grant] of a motion for summary judgment[,] the plaintiff/appell[ant] cannot rely on the factual

basis alleged in [her] complaint . . . to raise genuine issues of material fact.”).

8

Although another Georgia statute provides that community service boards are “public

agencies in their own right” rather than “agencies of the state or any specific county or

municipality,” O.C.G.A. § 37-2-11.1(c)(1), the Supreme Court of Georgia has struck as

unconstitutional this part of the statute “denominat[ing]” community service boards as

“unclassified public entities” and held that community service boards are “unit[s] of State

government.” Youngblood v. Gwinnett Rockdale Newton Cmty. Serv. Bd., 545 S.E.2d 875, 877

8

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its public agency status only if its local governing board, whose members are

appointed by “the governing authorities of the counties within the community

service board area,” id. § 37-2-6(b), converts it to a “private nonprofit corporation”

or a “component part of a hospital authority,” id. § 37-2-6.4(a)(1), (3). No record

evidence points to Lookout’s governing board having converted Lookout to one of

those forms, so Lookout remains a government actor. Having failed to sue under

§ 1983 to remedy her § 1981 rights, Langston may not proceed with her § 1981

claim; we affirm summary judgment to Lookout.

B. Langston’s Title VII Retaliation Claim Fails Because She Neglected to

Obtain a Right-to-Sue Letter from the U.S. Attorney General.

When a putative plaintiff wishes to sue a “government, governmental

agency, or political subdivision” under Title VII, § 706(f)(1) requires her to obtain

a right-to-sue letter from the U.S. Attorney General. 9 42 U.S.C. § 2000e-5(f)(1);

(Ga. 2001). We need not decide whether, for purposes of § 1983, Lookout is a state- versus a

local-level government actor because our analysis depends only on our conclusion that it is a

government, not a private, body.

9

An Equal Employment Opportunity Commission (EEOC) regulation says otherwise: it

provides that the EEOC will issue right-to-sue letters where it has dismissed a charge against a

government, governmental agency, or political subdivision. See 29 C.F.R. § 1601.28(d). A D.C.

Circuit opinion by then-Judge Ruth Bader Ginsburg pointed out that § 706(b) requires the EEOC

to dismiss the charge and notify the aggrieved person if the EEOC lacks reasonable cause to

believe the charge. Dougherty v. Barry, 869 F.2d 605, 611 (D.C. Cir. 1989) (citing 42 U.S.C.

§ 2000e-5(b)). Reading § 706(b) and § 706(f)(1) together, the D.C. Circuit held that § 706

requires the EEOC to issue right-to-sue letters where it finds no reasonable cause, including

where the respondent is a governmental unit, and that the Attorney General must issue right-to-

sue letters “only when the EEOC finds [reasonable] cause, conciliation efforts fail, and the

EEOC refers the case to the Justice Department, but the Attorney General decides not to pursue

9

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see also Fouche v. Jekyll Island-State Park Auth., 713 F.2d 1518, 1524 (11th Cir.

1983); Solomon v. Hardison, 746 F.2d 699, 701 (11th Cir. 1984) (citing Fouche).

This requirement is nonjurisdictional, however, and equitable waiver is available

where the plaintiff “diligently attempted to obtain the required notice, but the

Attorney General has refused to issue it,” Fouche, 713 F.2d at 1526, or the plaintiff

“conclusively demonstrated” that the Attorney General will not issue a right-to-sue

letter because the Equal Employment Opportunity Commission (EEOC) has

already issued one, Solomon, 746 F.2d at 702.

Langston received a right-to-sue letter from the EEOC but not the Attorney

General. She argues that she did not need to obtain a right-to-sue letter from the

Attorney General because Lookout is not a state actor, ignoring that Lookout is

nevertheless a government actor and hence qualifies as a “government,

governmental agency, or political subdivision” under § 706(f)(1). 42 U.S.C.

§ 2000e-5(f)(1). She makes no argument that she has diligently sought a letter to

qualify her for equitable waiver under Fouche or Solomon. We therefore affirm

the grant of summary judgment to Lookout on Langston’s Title VII retaliation

claim. 10

the action.” Id. at 611-12. Our Court has not adopted the D.C. Circuit’s interpretation of

§ 706(f)(1).

10

The district court held, in the alternative, that Langston’s Title VII retaliation claim

fails because she abandoned it. We need not address this alternative holding because we affirm

based on the district court’s decision on the merits. See Thomas v. Cooper Lighting, Inc.,

10

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C. Langston’s FLSA Claim for Overtime Pay Fails Because She Has Raised

No Genuine Dispute as to Her Job Duties Supporting Her Classification as

an Exempt Employee.

The FLSA requires employees to receive compensation for hours worked in

excess of 40 hours per week, 29 U.S.C. § 207(a)(1), but this requirement does not

apply to an employee who works in a “bona fide executive . . . capacity,” id.

§ 213(a)(1). Lookout bears the burden of “proving its executive exemption

affirmative defense.” Morgan v. Family Dollar Stores, Inc., 551 F.3d 1233, 1269

(11th Cir. 2008). We accord Chevron deference to U.S. Department of Labor

(“DOL”) regulations interpreting this exemption. See Pioch v. IBEX Eng’g Servs.,

Inc., 825 F.3d 1264, 1271 (11th Cir. 2016); Morante-Navarro v. T&Y Pine Straw,

Inc., 350 F.3d 1163, 1169 (11th Cir. 2003). “[A]pplying the executive exemption

is an inherently fact-based inquiry that depends on the many details of the

particular job duties and actual work performed by the employee seeking overtime

pay.” Morgan, 551 F.3d at 1263 (internal quotation marks omitted).

When Langston was fired, the DOL regulation interpreting the executive

exemption contained four requirements: (1) the employee must receive at least

$455 per week in compensation; (2) the employee’s “primary duty” must be

“management of the enterprise in which the employee is employed or of a

506 F.3d 1361, 1364 (11th Cir. 2007) (“We may affirm the district court’s judgment on any

ground that appears in the record, whether or not that ground was relied upon or even considered

by the court below.”).

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customarily recognized department or subdivision thereof”; (3) the employee

“customarily and regularly directs the work of two or more other employees”; and

(4) the employee has “authority to hire or fire other employees” or the employee’s

“suggestions and recommendations as to the hiring, firing, advancement,

promotion or any other change of status of other employees are given particular

weight.” 29 C.F.R. § 541.100(a) (2015). 11 Langston has raised no genuine dispute

that her job met all four criteria and therefore was properly classified as exempt.

1. Langston’s Weekly Salary Exceeded $455 Per Week.

Langston concedes that she met this requirement.

2. Langston’s Primary Duty Involved Management of Flintstone, a

Customarily Recognized Department or Subdivision of Lookout.

We work backward on this requirement. Flintstone qualifies as a

“customarily recognized department or subdivision of Lookout” because it has a

“permanent status and function,” id. § 541.103(a), as a residential home for a

severely disabled patient.

As for “management,” that term refers to:

11

After Langston was fired, the DOL promulgated a new version of 29 C.F.R.

§ 541.100(a)(1), regarding the minimum salary requirement. Defining and Delimiting the

Exemptions for Executive, Administrative, Professional, Outside Sales and Computer

Employees, 81 Fed. Reg. 32,391, 32,549 (May 23, 2016) (codified at 29 C.F.R. § 541.100(a)(1)).

The U.S. District Court for the Eastern District of Texas has held this new version to be invalid,

see Nevada v. U.S. Dep’t of Labor, 275 F. Supp. 3d 795, 807-08 (E.D. Tex. 2017), but its ruling

has no effect on the version in place when Langston was fired and therefore no effect on our

resolution of this appeal.

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interviewing . . . employees; setting and adjusting their . . . hours of

work; directing the work of employees; . . . appraising employees’

productivity and efficiency for the purpose of recommending

promotions or other changes in status; . . . disciplining employees;

planning the work; . . . determining the type of materials[] [and]

supplies . . . to be used or merchandise to be bought . . . ; [and] providing

for the safety and security of the employees or the property . . . .

Id. § 541.102. Langston performed several management activities: she

interviewed job applicants; ensured all shifts were adequately staffed and set staff

schedules; directed staff to perform various tasks to assist the patient and to keep

the house functional; sent Flintstone-wide e-mails to staff ordering them to refrain

from inappropriate behaviors; made lists of items she needed employees to buy for

Flintstone; and conducted drills required by Lookout’s health and safety

department. Had she not been terminated five months after she was hired, she

would have created for each member of the Flintstone staff performance

management forms that Lookout uses in its annual evaluation process to determine

promotions and pay raises.

As for “primary duty,” another DOL regulation provides:

The term ‘primary duty’ means the principal, main, major or most

important duty that the employee performs. . . . Factors to consider

when determining the primary duty of an employee include . . . the

relative importance of the exempt duties as compared with other types

of duties; the amount of time spent performing exempt work; the

employee’s relative freedom from direct supervision; and the

relationship between the employee’s salary and the wages paid to other

employees for the kind of nonexempt work performed by the employee.

Id. § 541.700(a). Langston’s job met each of these factors.

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Relative importance of exempt duties. Langston fails to make an

argument on this factor, so she has abandoned any dispute she might have about

whether her job satisfied it. Regardless, the record indicates that Langston’s

exempt duties were more important than her nonexempt duties. Her exempt duties

included: ensuring that at least two staffers were always available to take care of

the patient; directing staff on when to wake, dress, and feed the patient and help

him use the bathroom and exercise; sending Flintstone-wide e-mails disciplining

staff; holding at least one in-person meeting to scold a staff member about working

when scheduled and communicating respectfully; and participating in weekly

phone calls with Lookout senior leadership, Georgia state regulators, and the

patient’s mother regarding the patient’s care. As House Manager, she was the only

person at Flintstone who performed those roles. In contrast, her nonexempt duties

were limited to preparing food for the patient, counting medication, and changing

the patient’s clothes—all of which she did only when the nonexempt staff were

busy or needed help.

Time spent on exempt work. The record contains sparse evidence on this

factor. A DOL regulation explains that “[g]enerally, exempt executives make the

decision regarding when to perform nonexempt duties and remain responsible for

the success or failure of business operations under their management while

performing the nonexempt work,” whereas “the nonexempt employee generally is

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directed by a supervisor to perform the exempt work or performs the exempt work

for defined time periods.” Id. § 541.106(a). Langston testified that she helped

prepare food for the patient only when the instructors were busy, would assist the

nurses with counting medication only when they asked for help, and would change

the patient’s clothes only when needed. Langston repeatedly refers to Lewis’s

deposition statement that it was Langston’s job to “take care of the resident,” Doc.

59-3 at 37, but she takes that statement out of context. Lewis’s complete statement

was: “I believe that she understood the seriousness, if you will, of the

responsibility that she and the other staff in the home had to take care of the

resident.” Id. Langston has created no genuine dispute as to this factor. She

performed a wide range of exempt work as her usual practice and performed

nonexempt work on her own initiative—without prompting from a supervisor—or

when her staff requested help.

Freedom from direct supervision. The record is sparse on this factor as

well. But given that Langston was free to assign staff to shifts as she thought

necessary and was permitted to direct and discipline staff on her own initiative, she

has created no triable issue as to this factor.

Comparison of Langston’s salary to nonexempt employees’ wages.

Langston asserts that the instructors made nearly as much as she did for their non-

exempt work. But her assertion is based on the unsupported assumption that

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instructors worked an average of 10 overtime hours each week, year-round. From

timesheets showing that weekly overtime hours varied from two to 23 hours,

depending on the staffer, in the two months preceding her termination, it is

impossible to draw a reasonable inference that, on average, Flintstone instructors

worked 10 overtime hours per week for the entire year. Having failed to raise a

genuine dispute as to this factor and the preceding components of the “primary

duty” requirement, Langston has failed to create a genuine dispute as to the fact

that her primary duty involved management of Flintstone.

3. Langston Regularly Directed the Work of at Least Two Employees.

At least two staff were always required to be on duty at Flintstone, and it

was Langston’s job to schedule their shifts; direct them on when to wake, dress,

and feed the patient and help him use the bathroom; and issue reprimands about

proper behavior. She has created no triable issue on this requirement.

4. Langston’s Recommendations as to Hiring Were Given Significant

Weight.

According to another DOL regulation on hiring, firing, and promotions,

[t]o determine whether an employee’s suggestions and

recommendations are given “particular weight,” factors to be

considered include . . . whether it is part of the employee’s job duties to

make such suggestions and recommendations; the frequency with

which such suggestions and recommendations are made or requested;

and the frequency with which the employee’s suggestions and

recommendations are relied upon. . . . An employee’s suggestions and

recommendations may still be deemed to have “particular weight” . . .

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even if the employee does not have authority to make the ultimate

decision as to the [other] employee’s change in status.

29 C.F.R. § 541.105. Langston’s recommendations as to hiring were given

“particular weight” under this definition. Id. After Langston recommended that

Lookout hire Pennie Callahan, Heather Saine, and Blake Winslett, Lookout offered

them jobs, and Saine accepted. After Langston recommended against hiring Sarah

Carson for Flintstone because she lacked the medical experience needed to work

independently, Lookout hired her to work not at Flintstone but at an outpatient

clinic under direct supervision of experienced nurses. The outcome of her

recommendation regarding Jennifer Cone is indeterminate from the record.12 For

the outcomes that are determinate, Lookout followed Langston’s recommendations

100% of the time. Langston created no triable issue on this or any of the other

requirements for the “bona fide executive” exemption to the FLSA’s overtime

compensation provision. 29 U.S.C. § 213(a)(1); 29 C.F.R. § 541.100(a). We

therefore affirm the grant of summary judgment to Lookout on Langston’s FLSA

compensation claim.

D. Langston’s FLSA Retaliation Claim Fails Because She Raised No Genuine

Dispute as to Lookout’s Nonretaliatory Reason for Firing Her.

To prevail on an FLSA retaliation claim, the plaintiff must establish a prima

facie case, at which point the burden shifts to the employer to offer a nonretaliatory

12

See supra note 1.

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reason for the adverse action, after which the plaintiff must show that the

employer’s reason was pretextual. See Hornsby-Culpepper v. Ware, 906 F.3d

1302, 1314 (11th Cir. 2018). Even assuming that Langston has established a prima

facie case, we conclude that her claim fails at the pretext stage because she has

raised no genuine dispute as to Lookout’s nonretaliatory explanation that she was

fired for insubordination. 13

Langston tries to exploit an ambiguity in Lewis’s testimony—that Lewis

told her on the Friday evening preceding her termination, “[Y]ou’ll have to work to

cover it.” Doc. 59-3 at 15. She argues that Lewis’s statement meant that she had

to find a way to cover the shifts, and that she could fulfill this command either by

working the shifts herself or by finding another staff member who could fill in.

Because she found another staffer to work the shifts, Langston argues she was not

insubordinate.

Langston disregards, however, that all that matters is decisionmaker Ford’s

understanding of the nature of Langston and Lewis’s interaction. Ford testified he

understood that Lewis had ordered Langston to work the shifts herself and that

Langston had failed to show up. True, Ford also testified that Langston had the

authority to direct other staffers to fill those shifts and that there was a difference

13

The district court granted summary judgment to Lookout on the basis that Langston

failed to establish a prima facie case. Under our right-for-any-reason rule, we may affirm based

on any ground supported by the record. See Thomas, 506 F.3d at 1364.

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between Langston saying, as paraphrased, that Lewis told her “someone’s got to

cover that” and what Lewis told Ford she told Langston. Doc. 62 at 175. But

these statements do not conflict with his testimony that (1) his understanding was

that Lewis had ordered Langston to work the shifts herself, (2) Langston had not

done so, and (3) he viewed Langston’s failure as insubordination.

Courts do not “second-guess the wisdom of an employer’s business

decisions . . . as long as those decisions were not made with a[n] [unlawful]

motive. That is true . . . no matter how mistaken the firm’s managers.” Alvarez v.

Royal Atlantic Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010) (citation

omitted) (internal quotation marks omitted). Even if Langston’s interpretation of

Lewis’s command was one a reasonable person would have made, even if Lewis

and Ford mistakenly thought the scope of Lewis’s order was narrower than how

Langston reasonably interpreted it, and even if Langston had actually shown up to

work that weekend but Lewis mistakenly believed she was absent, the analysis

does not change. Langston nowhere disputes that (1) Ford understood her to have

violated Lewis’s order, (2) Ford viewed the failure to follow a supervisor’s order

as insubordination, and (3) insubordination is a valid, nonretaliatory reason for

firing someone. Because Langston has failed to raise a genuine dispute as to

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Ford’s nonretaliatory reason for firing her, we affirm the grant of summary

judgment to Lookout on her FLSA retaliation claim. 14

IV. CONCLUSION

We AFFIRM the district court’s grant of Lookout’s motion for summary

judgment and denial of Langston’s partial motion for summary judgment.

AFFIRMED.

14

Langston attempts to present Kassondra McClure as a comparator, arguing that

McClure failed to work shifts scheduled at Flintstone and that the district court improperly

excluded evidence regarding McClure. Langston fails to address the district court’s adoption of

the magistrate judge’s finding that, at best, the record shows only that Langston was unaware of

an arrangement McClure previously had worked out with Sabo, the Director of Human

Resources, that released her from any obligation to work at Flintstone. Because McClure was

not insubordinate, she is not a proper comparator.

20