Carlisle v. Rhodes & Rhodes Family Dentistry

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

EBONIE CARLISLE, )

)

)

Plaintiff, )

)

v. ) 7:20-cv-01895-LSC

)

)

RHODES & RHODES

)

FAMILY DENTISTRY, )

)

Defendant. )

)

MEMORANDUM OF OPINION

Plaintiff Ebonie Carlisle (“Carlisle”), an African American female, brings this

action against her former employer, Rhodes & Rhodes Family Dentistry

(“Rhodes”). Plaintiff alleges that (1) Defendant discriminated against Plaintiff

under Title VII and Section 1981 by Defendant not giving Plaintiff an assistant,

requiring Plaintiff to assist Caucasian employee’s patients, instructing Caucasian

workers not to assist the African American employees, and firing Plaintiff; (2)

Plaintiff was discriminatorily discharged under Title VII and Section 1981; and (3)

Defendant retaliated against Plaintiff because of her complaint of disparate

treatment. Defendant filed a Motion for Summary Judgment. The motion has been

fully briefed and is ripe for review. For the reasons stated below, Defendant’s motion

is due to be granted.

I. Facts

Defendant, Rhodes, is a dental practice owned by sisters Dr. Melinda Rhodes

King (“Dr. Melinda”) and Dr. Belinda Rhodes King (“Dr. Belinda”), who are

African American.1 Drs. Melinda and Belinda hired Plaintiff, Ebonie Carlisle

(“Carlisle”), on or around February 25, 2013, to work as a dental assistant.

Defendant employed Plaintiff on an at-will basis. Plaintiff worked as a dental

hygienist until Defendant terminated her employment on August 1, 2019.

In addition to Plaintiff, the following individuals worked as dental hygienists:

Tracey Robinson (“Robinson”), Deana Ross (“Ross”), and Heather Tinker

(“Tinker”). Robinson is African American, and Ross and Tinker are Caucasian.

Defendant employed Anna Marie Smith (“Smith”) and Larrin Durrett (“Durrett”)

as dental hygienist assistants. Smith and Durrett are both Caucasian. Defendant also

employed Lindsey Herd (“Herd”) as the office manager.

Plaintiff chose to treat one patient per hour for an average daily patient count

of six to eight patients in one hygiene room per day. (Docs. 17 at 8 & 25 at 3.) Plaintiff

1 The Court gleans these “facts” from the parties’ submissions of “undisputed facts” and the Court’s examination

of the record. These are “facts” for summary judgment purposes only. Their inclusion in this Memorandum of

Opinion does not signal their veracity. See Cox v. Adm’r U.S. Steel & Carnegie Pension Fund, 17 F.3d 1386, 1400 (11th

Cir. 1994).

did not have two hygiene rooms because she “[could not] clean patients in 30

minutes” and felt like she “need[ed] to give [her] patients [her] undivided attention

their whole full 45 minutes to an hour.” (Doc. 18-3 at 88-89.) Plaintiff admits that

Tinker treated twelve to sixteen patients a day. (Doc. 17 at 4 & Doc. 24 at 3.) Ross

also saw more patients than Plaintiff because she finishes “with her patients within

15 to 20 minutes” and “nine times out of ten, [Ross] could get the overflow room to

clean the other patients that would be there.” (Doc. 18-3 at 92-93.) Plaintiff was only

asked or required to get somebody from the overflow room if Ross was busy at that

time. (Doc. 18-3 at 92-93.)

In May 2018, approximately one year and three months before Defendant

fired Plaintiff, an incident occurred between Plaintiff and Durrett. Durrett entered

the room Plaintiff was in, opened a drawer, and hit Plaintiff’s knee with the drawer.

Plaintiff then told Durrett that if she did that again without saying “excuse me,”

then she would “punch her in the face” the next time. (Doc. 18-3 at 100.) Because

of the incident, both Plaintiff and Durrett were counseled by Herd. (Doc. 18-3 at

103.)

Then, in April of 2019, approximately four months before Plaintiff was fired,

Plaintiff received a performance evaluation from Dr. Belinda. In addition to stating

that Plaintiff was exceeding expectations in all categories, the evaluation also stated

“It’s a joy to have you on our team! We all love your joyful personality, just try to be

less playful/more courteous to Lindsey because temps/patients might not

understand your two’s relationship.” (Doc. 18-9 at 4.) When asked about this in her

deposition, Plaintiff stated that she understood that, as of April 2019, the practice

was concerned about her behavior towards Herd. (Doc. 18-3 at 109.)

In June of 2019, one month before Plaintiff’s termination, Plaintiff testifies

that she was finishing with a patient at 11:50 AM when Smith came in and asked if

she wanted Ross’s patient. (Doc 24-2 at 132:5-10.) Plaintiff told her no and finished

with her patient at about 11:55 AM, cleaned her room, and left for lunch around 12:00

PM . (Doc 24-2 at 132:5-23.)

On July 31, 2019, the day before Plaintiff’s termination, Herd and Plaintiff got

into an argument where Herd told Plaintiff that she was not a team player and stated

that people were afraid to ask her for help. (Doc. 25 at 12.) When asked what about

Herd’s statements were racist, Plaintiff could not give a concrete reason and

responded that it felt like she was picking on her. (Doc. 18-3 at 140.)

The next day, Plaintiff complained to Dr. Melinda. During the conversation,

Plaintiff told Dr. Melinda that she did not like how Ross and Tinker received help

when they needed it, but she and Robinson would not receive the same help if they

were behind. (Doc. 18-3 at 147.) During this conversation, Plaintiff admits that she

likely did not mention race. (Doc 18-3 at 147.) Nevertheless, Dr. Melinda understood

Plaintiff thought the unfair treatment was based on race. (Doc. 24-1, King Depo. at

42:17-23.)

Later that day, Plaintiff got into another heated argument with Herd. During

this argument, Herd brought up the threat Plaintiff made in May of 2018 and that

everyone thought Plaintiff was mean and not helpful. Plaintiff and Herd were

“screaming at each other.” (Doc. 18-3 at 150:8-9.) During that argument, according

to Dr. Melinda, Plaintiff was “invading [Herd]’s personal space and Plaintiff’s tone

and body language were very hostile (Doc. 19-1 at 48-49.) After the argument,

Plaintiff was sent home and later fired. Plaintiff was informed that she was fired for

insubordination, being combative, and failing to see patients. (Doc. 24-11.)

In March of 2020, nine months after Plaintiff’s firing, Durrett received an

Employee Warning Notice from Defendant. The warning stated that Durrett: (1)

argued with and questioned doctors; (2) moved work to others without permission;

(3) was unwilling to help others; (4) had body language and facial expressions that

give the impression she did not want to be there. (Doc. 24-12.) The warning was

signed by Herd. (Doc. 24-12.)

II. Standard of Review

“The court shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as

a matter of law.” Fed. R. Civ. Pro. 56(a). In making such a determination, this Court

must consider all the facts and draw all inferences in the nonmoving party’s favor.

Melton v. Abston, 841 F.3d 1207, 1219 (11th Cir. 2016). This Court does not weigh

evidence at the summary judgment stage. Anderson v. Liberty Lobby, 477 U.S. 242,

249 (1986). Instead, the Court views all the evidence and determines “whether there

is the need for a trial—whether, in other words, there are any genuine factual issues

that properly can be resolved only by a finder of fact because they may reasonably be

resolved in favor of either party.” Id. at 250.

III. Analysis

A. Title VII Numerosity Requirement

Defendant first alleges that Plaintiff cannot meet her burden of proving that

Defendant employed fifteen or more employees. (Doc. 17 at 10.) Title VII has an

“employee-numerosity requirement,” which is designated to “spare very small

businesses from Title VII liability.” Arbaugh v. Y&H Corp., 546 U.S. 500, 516

(2006). Under the employee-numerosity requirement, organizations are not subject

to Title VII”s proscription against unlawful employment practices unless they had

“fifteen or more employees for each working day in each of twenty or more

calendar weeks in the current or preceding calendar year.” 42 U.S.C. §§ 2000e(b),

2000e–3(a); McGinnis v. Ingram Equipment Co., 918 F.2d 1491, 1493 (11th

Cir.1990). Plaintiff has the burden of proving whether Defendant meets the

numerosity requirement, and it appears Plaintiff fails to do so.

Defendant claims it never employed fifteen or more employees while it

employed Plaintiff if one excludes Drs. Melinda and Belinda. Plaintiff argues that

(1) Drs. Melinda and Belinda are included in the total number of employees and (2)

even if they are not included, there are still fifteen employees because Wendy

Spencer, the woman who cleans the office, should be included.

First, Plaintiff has not provided enough evidence to show that Drs. Melinda

and Belinda are employees under Title VII. Second, Plaintiff has also not shown

that Spencer should be included in the total number of employees. When asked

about a photo, Plaintiff named and numbered fifteen individuals present in

Defendant’s group photo. (Doc. 18-3 at 189.) Absent from the photo were Plaintiff

and a lady, Wendy Spencer, who cleaned the office. (Doc. 18-3 at 189.) When

asked, Plaintiff stated that she “thinks” the cleaning lady is employed by

Defendant. (Doc. 18-3 at 189.) In Dr. Belinda’s declaration, she states that she

hired Spencer on a contract basis. (Doc. 18-2 at 2 ¶ 13.) Plaintiff has not provided

any evidence other than Plaintiff’s statement that she thinks Spencer is an

employee. This is not sufficient. Even though Plaintiff has failed to demonstrate

that Defendant employed fifteen or more employees at the time, the Court will

analyze Plaintiff’s claims.

B. Prima Facie Case for Disparate Treatment Claim and

Discriminatory Discharge

Carlisle brings a claim of racial discrimination under Title VII and 42 U.S.C.

§ 1981. Under Title VII and Section 1981, an employer may not discharge or

otherwise discriminate against an employee because of race. See 42 U.S.C. § 2000e-

2 (a) (1); see also 42 U.S.C. § 1981. To establish a Title VII claim, a plaintiff may

proffer either direct or circumstantial evidence of discrimination. Jefferson v. Sewon

America, Inc, 891 F.3d 911, 920 (11th Cir. 2018). Direct evidence of discrimination

consists of “only the most blatant remarks, whose intent could mean nothing other

than to discriminate.” Rojas v. Florida, 285 F.3d 1339, 1342 n. 2 (11th Cir.2002)

(quoting Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir.1999)).

Because Carlisle neither offers nor contends there was direct evidence of racial

discrimination, this Court must evaluate whether she has produced sufficient

circumstantial evidence of racial discrimination. Absent direct evidence of racial

discrimination or retaliation, such as specific statements made by the employer's

representatives, a plaintiff may demonstrate circumstantial evidence of disparate

treatment through the McDonnell Douglas burden-shifting framework. See

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668

(1973); see also Tex. Dep't of Cmty Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089,

67 L. Ed. 2d 207 (1981).

Under this framework, the aggrieved employee creates a presumption of

unlawful discrimination by first establishing a prima facie case of discrimination. See

Lewis v. City of Union City, 918 F.3d 1213, 1220-21 (11th Cir. 2019) (en banc). The

burden then shifts to the employer "to articulate a legitimate, nondiscriminatory

reason for its actions." Id. at 1221 (citing Burdine, 450 U.S. at 253). The burden at

this stage "is exceedingly light." Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1142

(11th Cir. 1983). It is merely a burden of production, not a burden of proof. Id. If the

employer proffers a legitimate, nondiscriminatory reason, the burden returns to the

employee to prove that the employer's reason is a pretext for unlawful

discrimination. Crawford v. Carroll, 529 F.3d 961, 976 (11th Cir. 2008).

Although the McDonnell Douglas framework is one way of showing

discriminatory intent, it is not the only way to show discriminatory intent in a Title

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

(11th Cir. 2011). "[T]he plaintiff will always survive summary judgment if [s]he

presents circumstantial evidence that creates a triable issue concerning the

employer's discriminatory intent." Id.

i. Disparate Treatment

To establish a prima facie case for racial discrimination, a plaintiff must show:

(1) she is a member of a protected class, (2) she was qualified for her position, (3) she

was subjected to an adverse employment action, and (4) she was treated less

favorably than similarly situated individuals outside her protected class or replaced

by someone outside her protected class. See Lewis, 918 F.3d at 1221.

Carlisle contends she was treated differently from other similarly situated

employees by: (1) being segregated from Caucasian employees; (2) not being given

an assistant; (3) being required to assist the Caucasian dental hygienists’ patients

when they were already working with a patient; (4) Caucasian workers being told not

to assist her; and (5) being fired. (Doc. 1 at 17.) Defendant does not dispute that

Plaintiff belongs to a protected class or was qualified for the position. Further,

Because Plaintiff was replaced by someone outside her protected class, Defendant

concedes that Plaintiff has established a prima facie case as to her firing. At issue is

whether Plaintiff was subjected to an adverse employment action and treated less

favorably than similarly situated individuals outside her protected class as described

in the remaining four allegations.

“For disparate treatment, an adverse employment action must ‘impact the

terms, conditions, or privileges of the plaintiff's job in a real and demonstrable

way.’” Minnifield v. City of Birmingham Dep't of Police, 791 F. App'x 86, 90 (11th Cir.

2019) (quoting Davis v. Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001),

overruled on other grounds by Burlington, 548 U.S. 53, 126). “Proof of ‘direct

economic consequences’ is not required, but a plaintiff must show ‘a serious and

material change in the terms, conditions, or privileges of employment.’” Id. A

“similarly situated employee” outside the plaintiff’s class, also called a

“comparator,” must not differ from the plaintiff in “material respects.” Lewis, 918

F.3d at 1224. “Material” differences between employees might be that the

employees engage in different conduct, are subject to different policies, or have

different work histories. Id. at 1228.

Here, Plaintiff’s allegations that she was segregated from Caucasian

employees, not given an assistant, required to assist the Caucasian dental hygienists’

patients when they were already working with a patient, and not receiving help from

Caucasian workers are insufficient to establish a prima facie case of disparate

treatment because most do not amount to an adverse employment action. “And, to

the extent some of the alleged conduct does, [Carlisle] still fails to establish a prima

facie case because there is no evidence that a similarly situated individual outside her

protected class was treated more favorably.” Gooden v. Internal Revenue Serv., 679 F.

App'x 958, 964 (11th Cir. 2017).

First, Plaintiff alleges that she was being segregated from Caucasian

employees. Specifically, Plaintiff alleges that she and Robinson, who were African

American, worked together, and Tinker, Ross, and Smith, who were Caucasian,

worked together. (Doc 24-2 at 125:2-17.) The evidence shows that Defendant did not

segregate Plaintiff from Caucasian employees. In Plaintiff’s affidavit, Plaintiff states

that she chose the room that she worked in. (Doc 24-2 at 125:2-17.) Further,

Defendant did not make Plaintiff work with Robinson and Plaintiff states that she

and Robinson decided to help each other “to get through the day.” (Doc 24-2 at

131:2-110.) As a result, there is nothing that shows Defendant segregated its

employees. Further, there is no evidence that, even if such a decision was made, it

affected Plaintiff’s job in a way that constituted an adverse employment action.

Second, Plaintiff alleges she suffered an adverse employment action by not

receiving an assistant. As to this allegation, Plaintiff fails to show that she was treated

less favorably than similarly situated individuals outside her protected class. Ross

and Tinker are the only other dental hygienists outside Plaintiff’s protected class,

and they both received dental assistants. However, just because Ross and Tinker

have the same title as Plaintiff, does not mean they are similarly situated individuals

for Title VII purposes. See Jenkins, 26 F.4th at 1249 (“[W]hat constitutes a

“material” similarity or difference will differ from case to case.”). A proper

comparator is similar “in all relevant aspects.” Smith v. Lockheed-Martin Corp., 644

F.3d 1321, 1326 n.17 (11th Cir. 2011). Because Plaintiff’s claim pertains to receiving

an assistant, simply having the same title, job description, and supervisor is not

enough to be a comparator. The Court also looks to the workload of the employees.

Plaintiff chose to treat one patient per hour for an average daily patient count

of six to eight patients. (Docs. 17 at 8 & 25 at 3.) Plaintiff did not have two hygiene

rooms because she “[couldn’t] clean patients in 30 minutes” and felt like she

“need[ed] to give [her] patients [her] undivided attention their whole full 45 minutes

to an hour.” (Doc. 18-3 at 88-89.) Tinker worked two hygiene rooms and saw more

patients than Plaintiff. Plaintiff admits that Tinker treated twelve to sixteen patients

per day. (Doc. 17 at 4 & Doc. 24 at 3.) Ross also sees more patients than Plaintiff

because she finishes “with her patients within 15 to 20 minutes” and “nine times

out of ten, [Ross] could get the overflow room to clean the other patients that would

be there.” (Doc. 18-3 at 92-93.) Thus, Ross essentially had two hygiene rooms

because, according to Plaintiff, Plaintiff would only be asked or required to get

somebody from the overflow room if Ross was busy at that time. (Doc. 18-3 at 92-

93.) Because Ross and Tinker treat more patients daily than Plaintiff, there are

material differences between them and Plaintiff. As a result, Plaintiff fails to show

proper comparators to establish a prima facie case.

Third, Plaintiff alleges she was required to assist the Caucasian dental

hygienists’ patients when she was already working with a patient. In Plaintiff’s

deposition, Plaintiff only points to one instance where she was asked to assist a

Caucasian dental hygienist while working with her patient. (Doc. 24-2.) In that

instance, Plaintiff testifies that she was finishing with a patient at 11:50 AM when

Smith came in and asked if she wanted Ross’s patient. (Doc 24-2 at 132:5-10.)

Plaintiff told her no and finished with her patient at about 11:55 AM, cleaned her

room, and left for lunch around 12:00 PM. (Doc 24-2 at 132:5-23.) Plaintiff was asked

to assist, said she was with a patient, and rejected the offer. As a result, Plaintiff fails

to show that she was “required” to assist Caucasian dental hygienists’ patients when

she was already working with a patient or that the request affected Plaintiff’s job in

any real or demonstrable way.

Fourth, Plaintiff alleges Caucasian workers were told not to assist her. The

only evidence as to this allegation comes from (1) Plaintiff’s deposition and (2)

Plaintiff’s EEOC Charge. (Doc. 25 at 13 p. 49) In the EEOC charge, Plaintiff states

“I later learned that the Caucasian coworkers were told by Lindsey Herd not to help

the African American Hygienists.” (Doc. 24-2 at 2.) In Plaintiff’s affidavit, Plaintiff

recounts that Smith told her that Herd instructed Smith to only help Tinker and

Ross. (Doc. 18-3 at 145-46.) Plaintiff states that, when she heard this from Smith,

race was not mentioned and that she did not hear it from Herd herself. (Doc. 18-3 at

145-46.) Plaintiff also alleges in her complaint that Caucasian coworkers were told not

to help the African American hygienists. But Plaintiff states in her affidavit that only

one coworker, Smith, was instructed not to help Carlisle. (Doc. 18-3 at 145.) Thus,

Plaintiff is essentially making the same argument discussed above that the Caucasian

hygienists were given an assistant, Smith, and the African American hygienists were

not. For the same reasons discussed regarding Plaintiff’s second alledged adverse

employment action, Plaintiff fails to show that similarly situated employees outside

her protected class were treated more favorably because there are no proper

comparators. Therefore, Plaintiff fails to establish a prima facie case because Plaintiff

has not established that this decision was based on race, that it was an adverse

employment action, or that there are any proper comparators.

Plaintiff has failed to establish that she suffered an adverse employment action

with regard to her disparate treatment claims. “And as for the more borderline

actions and decisions, she did not provide sufficient evidence demonstrating that

they were based on her race . . . .” Gooden, 679 F. App'x at 964. As a result, the Court

will turn to that claim.

ii. Discriminatory Discharge

Under the McDonnell Douglas framework for racial discrimination, Defendant

“does not dispute that Plaintiff establishes a prima facie case” for discriminatory

discharge. (Doc. 17 at 16.) Plaintiff (1) is a member of a protected class, (2) was

qualified for her position, (3) was discharged from her job, and (4) was replaced by

someone outside her protected class, a Hispanic woman. Thus, Plaintiff has met her

initial burden.

C. Prima Facie Case for Retaliation

Carlisle also brings a claim of retaliation under Title VII. Carlisle claims that

she was terminated for complaining about what she perceived as a difference in

treatment between white and black hygienists. (Doc. 25 at 29.) To establish a prima

facie case of retaliation, Plaintiff must show that: (1) she engaged in statutorily

protected activity; (2) suffered a materially adverse action; and (3) that there was a

causal connection between the protected activity and the materially adverse action.

Howard v. Walgreen Co., 605 F.3d 1239, 1244 (11th Cir. 2010). Here, Carlisle has

established a prima facie case of retaliation. However, Defendant argues that Carlisle

has failed to show she engaged in a statutorily protected activity and that she failed

to show a causal connection between the protected activity and the materially

adverse action.

i. Statutorily Protected Activity

Protected activity includes internal complaints to supervisors. Pipkins v. City

of Temple Terrace, 267 F.3d 1197, 1201 (11th Cir. 2001). However internal complaints

that consist only of generalized complaints of unfairness that do not mention race or

discrimination are not protected activity. Coutu v. Martin Cty. Bd. of Cty. Comm’rs,

47 F.3d 1068, 1074 (11th Cir. 1995) (“Unfair treatment, absent discrimination based

on race . . . is not an unlawful employment practice under Title VII”) (holding that

the plaintiff’s complaint that she worked hard and deserved a better performance

rating was not statutorily protected activity); Ceus v. City of Tampa, 803 F. App’x.

235, 246 (11th Cir. 2020) (holding that plaintiff’s complaint that mentioned merely

the unfair treatment of “bullying” was not protected activity “because it did not

mention race or discrimination . . . .”).

Defendant argues that Plaintiff did not engage in protected activity when she

made her complaint to Dr. Melinda about the difference in treatment of the white

and black hygienists. (Doc. 17 at 22.) Defendant claims that “[a]t no point during the

meeting did Plaintiff allege that race was at play; in fact, Plaintiff did not say the word

“race” when she met with Dr. Melinda.” (Doc. 17 at 22.) However, a close reading

of the record indicates otherwise. During her deposition, Plaintiff testified that she

went to Dr. Melinda and complained about two African American employees being

treated differently than two Caucasian employees. (Doc. 18–3 at 227). And Dr.

Melinda testified she understood from Carlisle’s perspective she thought the unfair

treatment was based on race. (Doc. 24-1, King Depo. at 42:17-23.) As such, Plaintiff

has sufficiently established that she engaged in protected activity. Pipkins, 267 F.3d

at 1201 (11th Cir. 2001).

i. Statutorily Protected Activity

The causal link element is construed broadly, requiring only that the protected

activity and the employment action are not completely unrelated. Chapter 7 Tr. v.

Gate Gourmet, Inc., 683 F.3d 1249, 1260 (11th Cir. 2012). Temporal proximity alone

is sufficient circumstantial evidence to create a genuine issue of material fact to

establish an inference of retaliation if such proximity is “very close.” Brown v. Ala.

Dep’t of Transp., 597 F.3d 1160, 1182 (11th Cir. 2010). See also Donnellon v. Fruehauf

Corp., 794 F.2d 598, 601 (11th Cir. 1986) (finding a one-month gap between the

protected activity and adverse employment action is sufficient to establish a

causation).

Defendant argues that because Plaintiff cannot establish that “either Herd or

Dr. Belinda—two of the three decisionmakers—had knowledge that she engaged in

any protected conduct, Carlisle cannot establish a causal connection.” (Doc. 17 at

23). However, Defendant fails to provide any support whatsoever that demonstrates

all decisionmakers must be aware of the protected activity. See, e.g., Clover v. Total

Sys. Servs., Inc., 176 F.3d 1346, 1354 (11th Cir. 1999) (holding that,

“[n]otwithstanding the close temporal proximity between the protected conduct and

the initial decision to terminate the plaintiff,” the plaintiff’s retaliation claim failed

because she could not establish a decisionmaker’s awareness of protected conduct).

Here, Carlisle was terminated the same day she made her race discrimination

complaint to Dr. Melinda. Further, Dr. Melinda was one of the decisionmakers and

was aware of Carlisle’s complaint. Thus, Carlisle has sufficiently established a causal

connection between the protected activity and her termination. Accordingly,

Carlisle has established a prima facie case of retaliation.

D. Pretext

According to Defendant, Plaintiff was fired for not seeing patients,

insubordination, and combative behavior. (Doc. 24-11.) Plaintiff agrees that

Defendant has satisfied its burden to articulate a legitimate non-discriminatory

reason for the adverse employment action. As a result, for her retaliation and

discriminatory discharge claims, Plaintiff has the burden to show that Defendant’s

proffered reason was not the true reason and that Defendant’s conduct was based on

racial animus. Id; see St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993).

“To show pretext, the plaintiff must ‘come forward with evidence . . .

sufficient to permit a reasonable factfinder to conclude that the reasons given by the

employer were not the real reasons for the adverse employment decision.’” Bush v.

Houston Cnty. Comm'n, 414 F. App'x 264, 267 (11th Cir. 2011) (quoting Wascura v.

City of S. Miami, 257 F.3d 1238, 1242–43 (11th Cir.2001)). The Plaintiff “may do

this either directly by persuading the court that a discriminatory or retaliatory reason

more likely than not motivated the employer, or indirectly by showing that the

proffered reason is unworthy of credence.” Jefferson v. Burger King Corp., 505 F.

App'x 830, 834 (11th Cir. 2013) (citing Jackson v. State of Ala. Tenure Comm'n, 405

F.3d 1276, 1289 (11th Cir.2005)). “In the end, our analysis is limited to whether a

discriminatory and/or retaliatory animus motivated the employer.” Id. “That an

employer's legitimate belief was mistaken is irrelevant so long as such animus did not

motivate the employer's decisions.” See id.; Elrod v. Sears, Roebuck & Co., 939

F.2d 1466, 1470 (11th Cir.1991)

Plaintiff has failed to show that she did not engage in the alleged violations.

But, by showing other employees outside the protected class engaged in similar acts

and were not similarly treated, Plaintiff has indirectly shown that the proffered

reason is possibly unworthy of credence.

First, Plaintiff has failed to show she did not engage in the alleged violations.

Plaintiff blanketly denies engaging in combative behavior and being insubordinate.

(Doc. 25 at 23, 26, 27.) And Plaintiff attempts to show that Defendant’s reasons for

firing Plaintiff were false by arguing that Defendant’s statements in the evaluations

of Plaintiff were inconsistent. However, the record clearly shows Defendant’s

opinion regarding Plaintiff shifts in the year and three months between Plaintiff

threatening to punch a coworker in the face and her discharge.

In May of 2018, Plaintiff and Durrett were both counseled by Herd after

Durrett opened a drawer that hit Plaintiff and Plaintiff then threatened to punch

Durrett in the face if she did it again. Then, in April of 2019, approximately four

months before Plaintiff was fired, Plaintiff’s evaluation stated “It’s a joy to have you

on our team! We all love your joyful personality, just try to be less playful, more

courteous to Lindsey because temps/patients might not understand your two’s

relationship.” (Doc. 18-3 at 108.) When asked about this in her deposition, Plaintiff

stated that she understood that, as of April 2019, the practice was concerned about

her behavior towards Herd. (Doc. 18-3 at 109.) Then, on July 31, 2019, the day before

Defendant fired Plaintiff, Herd and Plaintiff got into an argument, and Herd told

Plaintiff that she was not being a team player and stated that people were afraid to

ask her for help. (Doc. 25 at 12.) When Plaintiff was asked what about that argument

was racial, Plaintiff could not give a concrete reason and responded that it felt like

she was picking on her. (Doc. 18-3 at 140.)

Finally, on the day Plaintiff was fired, Plaintiff got into another heated

argument with Herd. During this argument, Herd brought up the threat Plaintiff

made in May of 2018 and that everyone thought Plaintiff was mean and not helpful.

Plaintiff and Herd were “screaming at each other.” (Doc. 18-3 at 150:8-9. During

that argument, according to Dr. Melinda, Plaintiff was “invading [Herd]’s personal

space and Plaintiff’s tone and body language were very hostile. (Doc. 19-1 at 48-49.)

After the argument, Plaintiff was sent home and later fired.

Two of the most heated arguments between Plaintiff and Herd came after her

performance review where Dr. Belinda instructed Plaintiff to be more courteous to

Herd. Plaintiff arguing with Herd, an authority figure in the office, to the point of

yelling and becoming very hostile shows that Plaintiff was both insubordinate and

combative.

As evidence that the reasons given by Defendant were pretext, Plaintiff

attempts to point out other employees outside the protected class that allegedly

engaged in similar acts and were not similarly treated. Plaintiff primarily points to

Durrett as an example of why Plaintiff acting insubordinate, combative, and failing

to see patients is pretext. Plaintiff argues that Durrett engaged in the same conduct

as Plaintiff and was not terminated. Plaintiff uses an Employee Warning Notice given

to Durrett in March of 2020, nine months after Plaintiff’s firing. The warning stated

that Durrett: (1) argued with and questioned doctors; (2) moved work to others

without permission; (3) was unwilling to help others; (4) had body language and

facial expressions that give the impression she did not want to be there. (Doc. 24-

12.) The warning is signed by Herd. (Doc. 24-12.) However, Plaintiff and Durrett

differ in material respects.

First, while she did argue with the doctors and Herd, there is no evidence that

Durrett argued with a supervisor on back-to-back days and that the arguments

involved yelling and hostile behavior. General allegations in the write-up that Durrett

was arguing with and questioning doctors and unwilling to help others and Plaintiff’s

statements such as “multiple people had problems with [Durrett] in the office” do

not evidence pretext. (Doc. 18-3 at 111.) Simply because both Plaintiff and Durrett

argued with doctors, does not mean they engaged in the same basic misconduct.

Here, there is evidence that Plaintiff was yelling and acting hostile towards Herd in

the presence of Dr. Melinda. No such allegation has been made regarding Durrett.

As such, the Court does not find that the reasons given for the firing of Plaintiff are

mere pretext.

Here, Plaintiff was put on notice in April of 2019 that she needed to be more

respectful towards her boss, Herd. Following that notice, Plaintiff and Herd got into

at least two heated arguments, the last of which involved screaming and hostile

behavior and took place in front of Dr. Melinda. After such arguments, Defendant

made the decision to fire Plaintiff.

“Put frankly, employers are free to fire their employees for ‘a good reason, a

bad reason, a reason based on erroneous facts, or for no reason at all, as long as its

action is not for a discriminatory reason.’” Flowers v. Troup Cnty., Ga., Sch. Dist.,

803 F.3d 1327, 1338 (11th Cir. 2015) (quoting Nix v. WLCY Radio/Rahall Commc'ns,

738 F.2d 1181, 1187 (11th Cir.1984)). The evidence shows that there are numerous

nondiscriminatory reasons why Defendant fired Plaintiff. Plaintiff has failed to

provide “sufficient evidence of racial discrimination to create a triable factual

dispute.” Flowers v. Troup Cnty., Ga., Sch. Dist., 803 F.3d 1327, 1338 (11th Cir. 2015).

As such, Defendant’s Motion for Summary Judgment regarding Plaintiff’s

retaliation and discriminatory discharge claims are due to be granted.

E. Plaintiff Cannot Establish a “Convincing Mosaic” of

Circumstantial Evidence.

An employee may survive summary judgment if a jury may infer intentional

discrimination from a “convincing mosaic” of circumstantial evidence. Lewis v. City

of Union City, Georgia, 934 F.3d 1169, 1185 (11th Cir. 2019) (quoting Smith v.

Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). An employee may

establish a convincing mosaic through evidence such as “(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.”

Id. (quoting Silverman v. Bd. Of Educ. Of City of Chi., 637 F.3d 729, 733-34 (7th Cir.

2011)). Carlisle has not addressed whether she has created a convincing mosaic. The

Court finds that the Plaintiff failed to meet her burden of creating an “inference of

discriminatory intent.” Lewis, 934 F.3d at 1185. Thus, Defendant is entitled to

summary judgment as to the racial discrimination claim.

IV. Conclusion

Defendant’s Motion for Summary Judgment is due to be GRANTED. The

Court will enter an Order consistent with this Memorandum of Opinion.

DONE and ORDERED on June 2, 2022.

Cf

□ L Scott Coogffr

United States Distct Judge

206888

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