Jaffe v. Birmingham Gastroenterology Associates, P.C.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

SANDRA JAFFE, )

)

Plaintiff, )

)

v. ) CIVIL ACTION NO.

) 2:20-CV-01821-KOB

BIRMINGHAM )

GASTROENTEROLOGY ASSOCIATES, )

P.C., )

)

Defendant. )

MEMORANDUM OPINION

According to Biblical texts, the Egyptian Pharaohs were some of the worst bosses a

worker could imagine. The Pharaohs imposed forced labor, oppressive taskmasters, and the most

demanding physical jobs—simply because the workers were Israelites. See Exodus 1. In this

case, Plaintiff Sandra Jaffe presents allegations likening her employment and firing by

Birmingham Gastroenterology Associates to that very narrative. But unlike the Biblical story,

Ms. Jaffe’s complaint presents few factual allegations showing intentional discrimination. Thus,

the court finds that the Plaintiff fails to allege religious discrimination under Title VII of the

Civil Rights Act of 1964. The court GRANTS Defendant’s motion to dismiss this claim

WITHOUT PREJUDICE.

I. Factual and Procedural Background

At the motion to dismiss stage, the court must accept factual matter contained in the

complaint as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The following account

provides those factual allegations most relevant to Jaffe’s religious discrimination claim.

Plaintiff Sandra Jaffe—a Jewish woman—was an employee of Defendant Birmingham

Gastroenterology Associates (“BGA”) for five years, from 2014 to 2019. (Doc. 1, Compl., ¶14,

32). Around a year into Jaffe’s employment, BGA hired Ben Shelton to serve as practice

manager and Jaffe’s supervisor. (Doc. 1 ¶15). In 2015, one of Jaffe’s coworkers filed EEOC

charges against Shelton. (Doc. 1 ¶16). Upon learning of this charge, Jaffe reported to Dr.

Philpott—a doctor at BGA—that Shelton had engaged in other conduct consistent with her

coworker’s EEOC allegations. (Doc. 1 ¶19). When Shelton later learned that Jaffe had reported

him, he grew increasingly hostile to Jaffe and tried to have her terminated in 2017, but Dr.

Philpott prevented Jaffe’s termination at that time. (Doc. 1 ¶ 22–25). Dr. Philpott retired in April

2019, and Shelton fired Jaffe less than a month later. (Doc. 1 ¶31–32).

Jaffe avers that, just before Dr. Philpott retired, he stated: “You know the story in the

Bible where the Pharaohs are smiting the Israelites and they are bad people. Well that is

happening now with the new administration at BGA. Tell Dr. Cochran.” (Doc. 1 ¶46). Dr.

Philpott made this statement three weeks before Shelton fired Jaffe. (Doc. 9 at 8). Jaffe also

alleges that, after her firing, Shelton offered shifting reasons for his decision. Shelton told Jaffe

and other employees that she was fired because BGA was restructuring; he told another

physician that her firing was a “cost issue”; and his response to Jaffe’s EEOC charge states that

her firing was because of “weak job performance.” (Doc. 1 ¶34–36). But according to Jaffe,

BGA repeatedly told her she was doing a great job. (Doc. 1 ¶37–38). After Jaffe’s firing, BGA

promoted four people and made two new hires to fill Jaffe’s job duties. (Doc. 1 ¶45). Jaffe makes

no allegations about her replacements’ religious adherence.

After her firing, Jaffe timely filed an EEOC charge for discrimination based on her age,

sex, and religion, and retaliatory firing for her participation in her coworker’s EEOC

proceedings. (Doc. 1-1). After receiving a right-to-sue letter, she filed this case, alleging age

discrimination under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §

621 et seq. and religious discrimination, sex discrimination in the form of a hostile work

environment, and retaliation, all under Title VII. (Doc. 1). As to the religious discrimination

count only, BGA has now filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6). (Doc. 7).

II. Legal Standard

A defendant may move to dismiss when the plaintiff fails to state a claim as a matter of

law. Fed. R. Civ. P. 12(b)(6). The nonmoving party survives a motion to dismiss if the complaint

states sufficient factual matter, accepted as true, to plausibly state a claim for relief. See Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)). The court accepts factual allegations as true, but the facts must state a claim rising

“above the speculative level.” Twombly, 550 U.S. at 555. The court is not required to accept

mere recitation of the elements of a claim or conclusory statements. Iqbal, 556 U.S. at 678.

III. Analysis

As an initial matter, the court must apply the familiar standard for assessing motions to

dismiss in the context of employment discrimination claims. Perhaps the most widely known

method for proving discrimination under Title VII involves the McDonnell Douglas burden

shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). But although

the McDonnell Douglas framework sets the burden of proof for summary judgment, it does not

dictate the plaintiff’s burden at the motion to dismiss stage because that framework is an

evidentiary standard, not a pleading requirement. See Swierkiewicz v. Sorema N.A., 534 U.S.

506, 510 (2002). The Supreme Court has been quite clear on this point: “This Court has never

indicated that the requirements for establishing a prima facie case under McDonnell Douglas

also apply to the pleading standard that plaintiffs must satisfy in order to survive a motion to

dismiss.” Swierkiewicz, 534 U.S. at 511. Rather, as the Eleventh Circuit later elaborated, “[t]o

state a [discrimination] claim under Title VII, a complaint need only ‘provide enough factual

matter (taken as true) to suggest intentional . . . discrimination.’” Surtain v. Hamlin Terrace

Foundation, 789 F.3d 1239, 1246 (11th Cir. 2015) (quoting Davis v. Coca-Cola Bottling Co.

Consol., 516 F.3d 955, 974 (11th Cir. 2008)). Consistent with Twombly and Iqbal, the focus at

the motion to dismiss stage is whether the complaint “plausibly suggest[s]” intentional

discrimination. Surtain, 789 F.3d at 1246.

Even so, the traditional methods of proving Title VII claims remain relevant, as “helpful

guide[s] to the determination of the issue.” Powell v. Harsco Metal, No. 2:12-cv-4080, 2013 WL

3242759, at *5 (N.D. Ala. June 20, 2013) (relying on the McDonnell Douglas framework to

assess motion to dismiss Title VII claim). The Eleventh Circuit has recognized three such

methods of proof: direct evidence of discrimination, the McDonnell Douglas framework, and a

“convincing mosaic” of circumstantial evidence. See Smith v. Lockheed-Martin Corp., 644 F.3d

1321, 1328 (11th Cir. 2011). Here, Jaffe claims that her pleadings plausibly allege a claim under

the second and third methods of proof. The court now addresses these claims, mindful that the

key question is whether the “factual allegations of a complaint plausibly suggest . . . intentional

discrimination,” rather than whether Jaffe has met every element of her final burden of proof at

this early stage. See Surtain, 789 F.3d at 1246.

a. The McDonnell Douglas Framework

BGA moves to dismiss Jaffe’s religious discrimination claim in part because she does not

allege a similarly situated comparator outside her class, in accordance with the McDonnell

Douglas framework. (Doc. 10 at 1–2). Generally, the McDonnell Douglas framework requires

the plaintiff to establish a prima facie case showing (1) membership in a protected group; (2)

qualification for the job in question; (3) an adverse employment action; and (4) either

replacement by or less favorable treatment than a similarly situated individual outside the

plaintiff’s protected class. See McDonnell Douglas, 411 U.S. at 802; Lewis v. City of Union City,

Ga., 918 F.3d 1213, 1226 (11th Cir. 2019).

As to the fourth element of the McDonnell Douglas case, the Eleventh Circuit has stated

that alleging a comparator is the key to a finding of discrimination because it shows whether the

employer has “treat[ed] like cases differently.” Lewis v. City of Union City, Ga., 918 F.3d 1213,

1222 (11th Cir. 2019). The comparison is only effective, of course, when the plaintiff’s

comparator is outside the plaintiff’s protected class. Lewis, 918 F.3d at 1227. And even though

the plaintiff is not required to allege a prima facie case at the motion to dismiss stage, alleging a

comparator outside the plaintiff’s class is a common thread among those discrimination claims

that survive a motion to dismiss. See, e.g., Swierkiewicz, 534 U.S at 514 (denying motion to

dismiss where plaintiff pled a comparator outside his protected class); McCurdy v. State of Ala.

Disability Determination Serv., No. 2:13-cv-934, 2015 WL 5737103 at *13 (N.D. Ala. Sept. 30,

2015) (same); Groce v. Franklin Cnty. Comm’n, No. 3:13-cv-01769, 2014 WL 3543700 at *3

(N.D. Ala. July 17, 2014) (same); Powell v. Harsco Metal, No. 2:12-cv-4080, 2013 WL 3242759

at *6 (N.D. Ala. June 20, 2013) (same).

Here, the parties do not dispute that Jaffe is a member of a protected class, as she is

Jewish, that she was fired, and that she was qualified for her job. But Jaffe has failed to allege a

comparator outside her protected class. Jaffe’s complaint is silent as to the religious adherence of

any of the six people that replaced her, and her brief offers no further clarity: “[t]here is no

allegation in the Complaint that any of [Jaffe’s replacements] are Jewish.” (Doc. 9 at 8). As Jaffe

states a religious discrimination claim, it is imperative that her comparators be non-Jewish. See,

e.g., Lindsey, 369 F. Supp. 3d at 1211. Of course, failure to allege a comparator does not

mandate dismissal at this stage, where plausibility is the focus. But Jaffe’s failure to allege a

comparator both sets her claim apart from those that typically survive motions to dismiss and

makes it difficult for the court to discern whether BGA was “treating like cases differently.”

Lewis, 918 F.3d at 1222. Add to this that Jaffe fails to allege the religion of anyone else in her

complaint—her coworkers, Dr. Philpott, Ben Shelton, or other BGA administration members—

and the court has little basis on which to find plausible religious discrimination.

To bolster her McDonnell Douglas argument, Jaffe argues that BGA’s purported firing

reasons are pretextual. The court notes that, while the pretext analysis is an essential component

of the McDonnell Douglas framework at the summary judgment stage, that analysis is perhaps

more out of place than the prima facie case at the motion to dismiss stage. After all, the

purported firing justifications that Jaffe rebuts are ones that she herself set forth in her pleadings;

the court has yet to hear from BGA on the matter. Even so, the court finds that Jaffe plausibly

rebuts two of the offered reasons at this early stage. Jaffe refutes the poor job performance

reason with her allegation of repeated praise from the BGA administration. And she plausibly

refutes the “cost issue” reason with an allegation that six replacement employees likely cost more

than keeping her on board. But she fails to address the restructuring justification at this point.

Finally, Jaffe points to the shifting nature of BGA’s proposed reasons for the firing, but the court

finds that this fact does not altogether discredit BGA’s justifications. See Herron-Williams v.

Ala. State Univ., 805 F. App’x 622, 630 (11th Cir. 2020) (permitting “shifting” and “conflicting”

purported firing reasons at the summary judgment stage).

But the Plaintiff’s pretext arguments are of little value at this stage. Rather, the facts that

Jaffe alleges show only that (1) she is Jewish, (2) she was fired for a job she was qualified to do,

and (3) she was replaced by six others whose religious adherence is unknown. Even though

Jaffe has cast some doubt on BGA’s supposed firing justifications, she provides few affirmative

facts showing an intent to discriminate. Without allegations as to the religion of Jaffe’s

replacements, the BGA administration, Shelton, or other mistreated Jewish coworkers, the court

struggles to find plausible intentional discrimination under the McDonnell Douglas framework.

b. The “Convincing Mosaic” of Circumstantial Evidence

Jaffe argues that, even if her pleadings do not check every box of the McDonnell Douglas

framework, they nonetheless constitute a “convincing mosaic of circumstantial evidence”

showing intentional discrimination. See Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328

(11th Cir. 2011). A plaintiff may meet this standard by showing, “among other things, (1)

‘suspicious timing, ambiguous statements, and other bits and pieces from which an inference of

discriminatory intent might be drawn,’ (2) systematically better treatment of similarly situated

employees, and (3) that the employer's justification is pretextual.” Lewis v. City of Union City,

Ga., 934 F.3d 1169, 1185 (11th Cir. 2019) (quoting Silverman v. Bd. of Educ. of City of Chi., 637

F.3d 729, 734 (7th Cir. 2011)). Such evidence must lead to the “unavoidable inference” of

intentional discrimination. Smith, 644 F.3d at 1346.

The “convincing mosaic” method of proof can be a fallback for plaintiffs who fail to

allege a similarly situated comparator under McDonnell Douglas. But to fill that gap, plaintiffs

must provide much circumstantial evidence. Consider the cases that Jaffe relies on, which all

occurred at the summary judgment stage. In Smith, the Eleventh Circuit found a convincing

mosaic when Lockheed-Martin punished white employees more severely than black employees

for sending racist emails. Smith, 644 F.3d at 1341. Recent violent and highly publicized scandals

of racist acts by employees incentivized Lockheed to aggressively discipline white employees.

And Lockheed openly relied on a race-categorized employee spreadsheet when deciding

punishments. Smith, 644 F.3d at 1336. That scenario presented a convincing mosaic.

In Lewis, the defendant fired the plaintiff for violating a company policy that she did not

actually violate and of which she was not warned. 934 F.3d at 1186. Although she did not offer a

“similarly situated comparator,” the Lewis plaintiff offered several fellow workers outside her

protected class that were treated more favorably than her in numerous respects. These facts

showed a convincing mosaic.

And although the court in Rioux v. City of Atlanta, Ga. ultimately granted the city-

employers qualified immunity, the court found that the white plaintiff had shown racial

discrimination at the summary judgment stage because he was fired under pressure from the

department’s black leadership as part of a “race balancing” effort. 520 F.3d 1269, 1277 (11th

Cir. 2008). The Rioux plaintiff also presented a more favorably treated comparator, although not

“similarly situated.” Rioux, 520 F.3d at 1277.

These cases present a contrast to Blancher, where a single email discussing the plaintiff’s

race sent by someone other than the person who fired the plaintiff did not create a convincing

mosaic against the employer’s unrefuted justification for the firing. Blancher v. City of

Birmingham, No. 2:19-cv-997, 2021 WL 2188199 at *12 (N.D. Ala. May 28, 2021) (slip copy).

Here, Jaffe’s allegations do not state a convincing mosaic of discrimination. The

complaint does not allege that Shelton or the administration made explicit religion-based

comments or had religion-based policies. Rather, Jaffe relies heavily on Dr. Philpott’s

“Pharaohs” comment, made three weeks before Jaffe’s firing. But ambiguity plagues the

Pharaohs statement. For starters, it is a simile, which is inherently difficult to interpret because it

“symbolically represent[s] or suggest[s] something else.” Simile, The Oxford Eng. Dictionary (3d

ed. 2019). And its application is far from clear here. For example, Dr. Philpott states that the

BGA administration is “smiting” employees just as the pharaohs did, but does that statement

specifically describe BGA’s firing decisions and its treatment of Jaffe? Unclear. Also, Dr.

Philpott spoke in the plural (“Israelites”), which appears to imply that BGA mistreated other

Jewish employees also. But Jaffe does not mention other mistreated Jewish employees. See

Ostrow v. GlobeCast Am. Inc., 489 F. App'x 433, 438 (11th Cir. 2012) (affirming summary

judgment against plaintiff who failed to allege a “pattern of firing” other employees in the

plaintiff’s class). Then the issue of timing arises: did Dr. Philpott suspect that the administration

would engage in adverse action against Jaffe soon? Neither Jaffe’s complaint nor Philpott’s

statement say so, and if not, his comment sheds little light on BGA’s motivations for a firing

decision three weeks later. The temporal relevance of the Pharaohs comment is especially

dubious, given that the original friction between Shelton and Jaffe preexisted the Pharaohs

comment by almost two years.

The Pharaohs statement is also unhelpful because it does not indicate that the

administration fired Jaffe because of her religion. Jaffe’s burden is to plausibly show that

“unlawful discriminatory animus motivated the decision.” Alvarez, 610 F.3d at 1266. Even if Dr.

Philpott predicted that the administration would be “smiting” a Jewish employee, he does not

explain why. Perhaps he could not. Even granting that Dr. Philpott previously intervened to

prevent Jaffe’s firing, the pleadings do not indicate that Dr. Philpott had any reason to know how

or why BGA’s firing decisions were made. Unlike Shelton, Philpott was not part of the

administration. In Rioux and Smith, by contrast, the firing decisionmakers themselves openly

stated that they were guided by race-based policies. But Dr. Philpott’s statement is little more

than a stray remark made by someone out of the loop as to firing decisions. See Alvarez, 610

F.3d at 1268 (rejecting evidence of “single stray remark ‘Cubans are dumb,’ which was not made

by one of the ultimate decision makers”); Blancher, No. 2:19-cv-997, 2021 WL 2188199 at *12

(rejecting evidence of email showing discrimination by non-decisionmaker). Taken together, the

ambiguities of the Pharaohs statement and Dr. Philpott’s apparent lack of knowledge of firing

decisions mean that the statement does not move the needle toward plausible religious

discrimination.

Finally, Jaffe’s complaint lacks other facts to show a convincing mosaic of discrimination

like the cases she relied on. For example, the plaintiffs in Lewis, Smith, and Rioux all offered

comparators (albeit not “similarly situated”) outside their protected classes that were treated

more favorably. Again, no dice here. Jaffe’s silence about her coworkers’ religion also prevents

the court from identifying a “pattern of firing” similar Jewish workers. See Damon v. Fleming

Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999). Finally, Lewis, Smith, and

Rioux contained myriad other facts showing intentional discrimination—an “extraordinarily

arbitrary” firing in Lewis, an explicitly race-based hiring quota in Rioux, and a years-long

backdrop of racial violence and media firestorms in Smith. None of that is present here. Even

given the Pharaohs comment, the court finds that Jaffe simply needs “more tiles in this mosaic”

for it to be convincing. Lewis, 934 F.3d at 1188.

IV. Conclusion

Jaffe’s allegations meet neither the McDonnell Douglas framework nor the “convincing

mosaic” methods of proof. And although the plaintiff does not bear the burden of proof at the

motion to dismiss stage, these methods provide guidance as to what allegations plausibly show

intentional discrimination. Because Jaffe’s complaint fails to plausibly allege religious

discrimination under either method, the court GRANTS Defendant BGA’s Motion to Partially

Dismiss. (Doc. 7). Plaintiff’s claim for religious discrimination (Count II) is DISMISSED

WITHOUT PREJUDICE. Should the Plaintiff wish to amend, she may do so by October 8,

2021.

DONE and ORDERED this 16th day of September, 2021.

____________________________________

KARON OWEN BOWDRE

UNITED STATES DISTRICT JUDGE