Nicole Reeves v. Columbus Consolidated Government

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11463
Non-Argument Calendar
____________________
NICOLE REEVES,
Plaintiff-Appellant,
versus
COLUMBUS CONSOLIDATED GOVERNMENT,
Defendant- Appellee,
FORMER CHIEF RICKY BOREN, et al.,
Defendants.
____________________
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2 Opinion of the Court 23-11463
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 4:21-cv-00080-CDL
____________________
Before J ORDAN, NEWSOM , and ANDERSON, Circuit Judges.
PER CURIAM:
Nicole Reeves, a black former police officer, challenges the
district court’s grant of summary judgment in favor of her former
employer, Columbus Consolidated Government. We also address
Columbus’s motion to find this appeal frivolous and award just
damages.
I.
We review de novo a district court’s grant of summary judg-
ment. Anthony v. Georgia, 69 F.4th 796, 804 (11th Cir. 2023). “Sum-
mary judgment is appropriate 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.” Id. (quotation marks omitted).
“In determining whether the movant has met this burden, [we]
must view the evidence in the light most favorable to the non-mo-
vant.” Id. “Nonetheless, unsubstantiated assertions alone are not
enough to withstand a motion for summary judgment.” Id. (quo-
tation marks omitted).
Title VII prohibits an employer from firing an employee be-
cause of race or otherwise racially discriminating against an indi-
vidual with respect to the terms of her employment. 42 U.S.C. §
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23-11463 Opinion of the Court 3
2000e 2(a). Plaintiffs bear the burden of proving that their em-
ployer discriminated against them unlawfully. Hinson v. Clinch Cty.,
Georgia Bd. Of Educ., 231 F.3d 821, 827 (11th Cir. 2000). To survive
summary judgment, a plaintiff must present facts sufficient to per-
mit a jury to find there was intentional discrimination. Lewis v. City
of Union City, Ga, 918 F.3d 1213, 1220 (11th Cir. 2019) (en banc). A
plaintiff can do this by (1) “present[ing] direct evidence of discrim-
inatory intent,” (2) “satisfying the burden-shifting framework set
out in McDonnell Douglas,” or (3) “demonstrat[ing] a ‘convincing
mosaic’ of circumstantial evidence that warrants an inference of
intentional discrimination.” Id. at 1220 & n.6.
Direct evidence is that which shows an employer’s discrimi-
natory intent “without any inference or presumption.” Hinson, 231
F.3d at 827. By contrast, any evidence that requires an inferential
step is circumstantial. See Fernandez v. Trees, Inc., 961 F.3d 1148, 1156
(11th Cir. 2020). “Only the most blatant remarks whose intent
could mean nothing other than to discriminate on the basis of
some impermissible factor constitute direct evidence of discrimi-
nation.” Holland v. Gee, 677 F.3d 1047, 1055 (11th Cir. 2012) (quota-
tion marks omitted); see also Merritt v. Dillard Paper Co., 120 F.3d
1181, 1189 90 (11th Cir. 1997) (collecting cases where statements
were sufficient to demonstrate direct evidence of discrimination
under Title VII).
Under the McDonnell Douglas burden shifting framework,
[T]he plaintiff bears the initial burden of establishing
a prima facie case of discrimination by showing (1)
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4 Opinion of the Court 23-11463
that she belongs to a protected class, (2) that she was
subjected to an adverse employment action, (3) that
she was qualified to perform the job in question, and
(4) that her employer treated “similarly situated” em-
ployees outside her class more favorably.
Lewis, 918 F.3d at 1220 21. In this circuit, “similarly situated” is de-
fined as “similarly situated in all material respects.” Id. at 1226. In
Anthony v. Georgia, a black law enforcement officer alleged that his
employer racially discriminated against him when he was placed on
administrative leave following misconduct allegations. 69 F.4th at
799 801. In determining whether the plaintiff and his proffered
comparator were “similarly situated in all material respects,” we
looked to whether the comparator “engaged in the same basic con-
duct (or misconduct) as the plaintiff; was subject to the same em-
ployment policy, guideline, or rule; had the same supervisor as the
plaintiff; and shared the plaintiff’s employment or disciplinary his-
tory.” Id. at 805 (quotation marks omitted and cleaned up).
“If the plaintiff succeeds in making out a prima facie case,
the burden shifts to the defendant to articulate a legitimate, non-
discriminatory reason for its actions.” Lewis, 918 F.3d at 1221. If
the defendant carries its burden, “the plaintiff must then demon-
strate that the defendant’s proffered reason was merely a pretext
for unlawful discrimination, an obligation that merges with the
plaintiff’s ultimate burden of persuading the factfinder that she has
been the victim of intentional discrimination.” Id. (quotation
marks omitted).
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23-11463 Opinion of the Court 5
Satisfying the McDonnell Douglas framework is not essential
for a plaintiff to survive summary judgment. Smith v. Lockheed Mar-
tin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). “Rather, the plaintiff
will always survive summary judgment if [s]he presents circum-
stantial evidence that creates a triable issue concerning the em-
ployer’s discriminatory intent.” Id. In other words, a court must
deny a defendant’s motion for summary judgment if the plaintiff
“presents a convincing mosaic of circumstantial evidence that
would allow a jury to infer intentional discrimination by the deci-
sionmaker.” Id. (footnote and quotation marks omitted).
A plaintiff may establish a “convincing mosaic” by pointing
to evidence that shows, “among other things, (1) suspicious timing
or ambiguous statements, (2) systematically better treatment of
similarly situated employees, and (3) pretext.” Yelling v. St. Vincent’s
Health Sys., 82 F.4th 1329, 1342 (11th Cir. 2023) (quotation marks
omitted); see also Jenkins v. Nell, 26 F.4th 1243, 1251 (11th Cir. 2022)
(finding the plaintiff had established a “convincing mosaic” by
showing, inter alia, that employees who committed similar miscon-
duct remained employed, that a supervisor made racially biased
comments, and that the supervisor gave “shifting reasons” for the
plaintiff’s termination).
While the “convincing mosaic” approach is more flexible
than the McDonnell Douglas framework, it is not a separate legal
test. Yelling, 82 F.4th at 1342. The plaintiff’s “‘mosaic’ of evidence
must still be enough to allow a reasonable jury to infer but-for cau-
sation.” Id. The “convincing mosaic” framework is rather a
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6 Opinion of the Court 23-11463
recognition “that courts must consider the totality of a plaintiff’s
circumstantial evidence” before granting summary judgment. Id.
The district court did not err in granting summary judgment
for Columbus because Reeves failed to present facts sufficient to
permit a jury to find intentional discrimination. Lewis, 918 F.3d at
1220. First, Reeves has not presented any direct evidence of racial
discrimination. She does not point to any “blatant remarks” of ra-
cial animus and, in fact, admitted in her deposition that neither
Boren nor the Office of Professional Standards (“OPS”) team said
anything to make her think their decisions were racially motivated.
Merritt, 120 F.3d at 1189-90. All of her evidence requires inference
or, to be more accurate, speculation to reach a finding of inten-
tional race-based discrimination. Thus, she fails to survive sum-
mary judgment under the direct evidence approach. See Fernandez,
961 F.3d at 1156.
Second, Reeves fails under the McDonnell Douglas frame-
work because she cannot establish a prima facie case. Lewis, 918
F.3d at 1220-21. She cannot establish a prima facie case because her
proffered comparators were not “similarly situated in all material
respects.” Id. at 1226. Watkins, Still, and Vardman were accused
of very different misconduct—on-duty use of force and violation
of the requirement to log in evidence—and were governed by dif-
ferent policies.1 Anthony, 69 F.4th at 805. While Vardman’s miscon-
duct also involved making false statements, his behavior differed
1 And the decision-makers were also different with respect to Still’s violation
of the evidence log-in rule.
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23-11463 Opinion of the Court 7
from Reeves’ because Vardman came clean within minutes. None
of Reeves’ purported comparators involved other witnesses in ly-
ing, or engaged in prolonged lying, as did Reeves throughout the
administrative proceedings and thereafter. Because Reeves fails to
show she was treated differently than similarly situated non-black
employees, she fails to establish a prima facie case of race-based
discrimination and the McDonnell Douglas analysis ends there.
Lewis, 918 F.3d at 1220 21.
Finally, Reeves also has not presented “a convincing mosaic
of circumstantial evidence that would allow a jury to infer inten-
tional discrimination by the decisionmaker.” Smith, 644 F.3d at
1328. The crux of her argument is that the Columbus police de-
partment had a “cover up culture” of protecting white officers who
committed misconduct that did not extend to black officers. How-
ever, she has not sufficiently shown that such a culture existed.
Viewing the evidence in the light most favorable to Reeves, there
might have been some evidence (although not much) suggesting
an attitude of “protecting our own” within parts of the Columbus
police department. However, there was no evidence at all, other
than Reeves’ conclusory assertions, to show that such an attitude
extended only to white officers. In fact, Vardman testified that if
Reeves had been honest at the beginning of his investigation, he
would have recommended that she, a black officer, not be charged.
Reeves’ “unsubstantiated assertions” that the Columbus po-
lice department had a custom of more strictly punishing black of-
ficers do not on their own create a genuine question for the jury as
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8 Opinion of the Court 23-11463
to whether her suspension and termination were racially moti-
vated. Anthony, 69 F.4th at 804. Therefore, the district court was
correct to grant summary judgment.
II.
An appellate court may—in response to a separately filed motion
and after a reasonable opportunity to respond—award damages
and costs to the appellee if it determines that an appeal is frivolous.
Fed. R. App. P. 38. “An award of damages and costs under [Rule 38]
is appropriate when an appellant raises clearly frivolous claims in
the face of established law and clear facts.” McLaurin v. Terminix
Int’l Co., 13 F.4th 1232, 1243 (11th Cir. 2021) (quotation marks omit-
ted). “[A] claim is clearly frivolous if it is utterly devoid of merit.”
Id. The Supreme Court has cautioned that when considering sanc-
tions against a losing plaintiff in an employment discrimination
case, courts should not “undercut the efforts of Congress to pro-
mote the vigorous enforcement of the provisions of Title VII.”
Christiansburg Garment Co. v. Equal Emp. Opportunity Comm’n, 434
U.S. 412, 422 (1978) (discussing sanctions under § 706(k) of Title
VII).
Here, although we agree with the district court that it comes
close, we cannot say Reeves’ appeal is so “utterly devoid of merit”
to warrant sanctions. McLaurin, 13 F.4th at 1243.
The district court’s grant of summary judgment is
AFFIRMED and Columbus’s motion is DENIED.
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