Sandra Moss v. St. Vincent's Health System

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13956
Non-Argument Calendar
____________________
SANDRA MOSS,
Plaintiff-Appellant,
versus
ST. VINCENT’S HEALTH SYSTEM,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:21-cv-00131-GMB
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2 Opinion of the Court 22-13956
____________________
Before JORDAN, LAGOA, and ANDERSON, Circuit Judges.
PER CURIAM:
Sandra Moss, an African-American woman, appeals the
magistrate judge’s grant of summary judgment1 to St. Vincent’s
Health System (“SVH”) on her race discrimination and retaliation
claims under Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. § 2000e, and 42 U.S.C. § 1981. She argues that her race
discrimination claim presented sufficient facts to permit a jury to
rule in her favor, satisfying the burden-shifting framework in
McDonnell Douglas.2 In the alternative, Moss argues that she ad-
duced a convincing mosaic of circumstantial evidence that sup-
ported an inference of intentional race discrimination. Moss also
argues that the magistrate judge erred by concluding that she failed
to establish that the SVH decision-maker who disciplined her and
who she alleged was unlawfully retaliating against her knew about
her pending EEOC charge.
I.
We write only for the parties who are already familiar with
the facts and proceedings below, so we set forth only matters
which will facilitate an understanding of our decision.
1 Pursuant to 28 U.S.C. § 636(c)(1), the parties agreed that the case
would be heard and decided by the magistrate judge.
2 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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22-13956 Opinion of the Court 3
We review the grant of summary judgment de novo. Thomas
v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007). Sum-
mary judgment may be affirmed if there exists any adequate
ground for doing so, regardless of whether it is the one on which
the district court relied. Fitzpatrick v. City of Atlanta, 2 F.3d 1112,
1117 (11th Cir. 1993). Summary judgment is appropriate if the mo-
vant 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. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A
factual dispute is genuine if it has a real basis in the record and the
evidence is such that a reasonable jury could rule in favor of the
nonmovant. Ellis v. England, 432 F.3d 1321, 1325-26 (11th Cir.
2005). When a district court considers a motion for summary judg-
ment, it must view all the evidence and all factual inferences rea-
sonably drawn from the evidence in the light most favorable to the
nonmoving party and must resolve all reasonable doubts about the
facts in favor of the nonmovant. Rioux v. City of Atlanta, Ga., 520
F.3d 1269, 1274 (11th Cir. 2008).
Title VII prohibits an employer from discriminating against
a person with respect to the “terms, conditions, or privileges of em-
ployment, because of such individual’s race.” 42 U.S.C.
§ 2000e-2(a)(1). Section 1981 of Title 42 of the United States Code
likewise protects the right of all citizens to make and enforce con-
tracts without fear of discrimination based on the color of their
skin. 42 U.S.C. § 1981(a). In the absence of direct evidence of dis-
crimination, a plaintiff may prove a discrimination claim under Ti-
tle VII through circumstantial evidence, which we generally
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4 Opinion of the Court 22-13956
analyze using the three-step, burden-shifting framework estab-
lished in McDonnell Douglas. E.E.O.C. v. Joe’s Stone Crabs, Inc., 296
F.3d 1265, 1272 (11th Cir. 2002). Claims of employment discrimi-
nation under § 1981 are generally analyzed under the same frame-
work as claims under Title VII. Ferrill v. Parker Grp., 168 F.3d 468,
472 (11th Cir. 1999). Under this framework, the plaintiff must first
establish a prima facie case of intentional discrimination. Id.
If the plaintiff establishes a prima facie case, the burden shifts
to the employer to articulate a legitimate, non-discriminatory rea-
son for its action. Lewis v. City of Union City, Ga., 918 F.3d 1213,
1221 (11th Cir. 2019) (en banc). As long as the employer articulates
a clear and reasonably specific non-discriminatory basis for its ac-
tions, it has discharged its burden of production at this stage. Tex.
Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 254-55 (1981). The bur-
den then shifts back to the plaintiff to show that the stated reason
is pretextual. Id. at 255-56. A plaintiff can show pretext by present-
ing evidence that a proffered reason is false, and that discrimination
was the true reason for the adverse employment action. Brooks v.
Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160, 1163 (11th Cir.
2006). Employers are free to promote an employee for a good rea-
son, a bad reason, a reason based on erroneous facts, or for no rea-
son at all, as long as the promotion is not based on discriminatory
reasoning. Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir.
2000) (en banc). Provided a reason given might motivate a reason-
able employer, the plaintiff must meet it head on and rebut it to
prove pretext. Id. The employee cannot succeed by simply quar-
reling with the wisdom of the employer’s reasoning. Id. When a
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22-13956 Opinion of the Court 5
plaintiff chooses to attack the veracity of the employer’s proffered
reason, the inquiry is limited to whether the employer gave an hon-
est explanation of its behavior. Kragor v. Takeda Pharms. Am., Inc.,
702 F.3d 1304, 1310-11 (11th Cir. 2012).
We have held that a plaintiff may also defeat a summary
judgment motion by presenting a convincing mosaic of circum-
stantial evidence that would allow a jury to infer intentional dis-
crimination. Lewis v. City of Union City, Ga., 934 F.3d 1169, 1185
(11th Cir. 2019). A convincing mosaic can be shown by (1) suspi-
cious 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) evidence that the employer’s justification is pretextual. Id.
Thus, the plaintiff’s failure to produce a comparator does not nec-
essarily doom the plaintiff’s case. Id. Speculation about the em-
ployer’s actual reasoning does not create a genuine issue of fact.
Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). To
succeed, the plaintiff must show that the employer’s proffered ex-
planation is unworthy of credence by revealing weaknesses, incon-
sistencies, or contradictions in the explanation. Combs v. Plantation
Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997).
Here, the magistrate judge did not err in granting summary
judgment to SVH on Moss’s race discrimination claim. Moss failed
to establish that SVH’s reasons for offering Jackson the promotion
were a pretext for racial discrimination. See Burdine, 450 U.S. at 254
55; see Brooks, 446 F.3d at 1163. SVH proffered nondiscriminatory
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6 Opinion of the Court 22-13956
reasons for promoting Jackson including (1) that every interview
panelist in the second round of interviews3 rated Jackson higher
than Moss; and (2) that Jackson historically performed better at
communicating safety issues to Kersh and Moss tended to disre-
gard practices with which she disagreed.
It is undisputed that the interview panelists ranked Jackson
higher than Moss based on their respective responses to the inter-
view questions. Natasha Kersh, at the time the nurse manager and
immediate supervisor of the telemetry monitoring team of which
Moss and Jackson were a part, was charged with filling the vacancy
caused when one of the two team leaders left. Kersh assembled
two rounds of interviews, presided over the interviews, and was
the ultimate decisionmaker. At the second round of interviews the
candidates were narrowed to Moss and Jackson. Kersh had super-
vised and worked with both: Moss for over two and half years and
Jackson for about a year. Like the other interview panelists, Kersh
thought that the interviews revealed Jackson to be a better fit for
the lead position. Particularly significant for Kersh were the respec-
tive answers to a question Kersh asked both candidates—i.e. their
reaction to a hypothetical safety situation which Kersh posed. Jack-
son indicated that the matter should be reported immediately to
the nurse manager, while Kersh had to probe Moss to reach that
answer. This was consistent with Kersh’s observations of the two
candidates over her time supervising them. Kersh had worked
3 In this second round of interviews, one member of the panel was an
African American female.
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22-13956 Opinion of the Court 7
with Moss for two and a half year and she had never brought an
issue to Kersh for consideration and consultation. By contrast,
Jackson had done so routinely. In making the decision to prefer
Jackson over Moss, Kersh also relied on her observations over the
years that Moss had a tendency to disregard hospital practices with
which she disagreed. Although acknowledging Moss’s superior
skills in reading the monitors in her current position, as well as her
seniority, Kersh also realized that the lead position to be filled en-
tailed a more significant focus on interpersonal skills, and overall
Kersh believed that Jackson was a better fit for the lead position.
In her current position as a Telemetry Technician (monitor-
ing the telemetry devices which track patients’ cardiac rhythms,
etc.), Moss argues that she has received several certificates for ac-
tively supporting the effort to provide safe healthcare. She argues
that those certificates and a similar remark in a previous evaluation
by Kersh herself are inconsistent with Kersh’s concerns about her
with regard to safety. While the certificates are indicative that
Moss has been good in her current position, they do not speak di-
rectly to Kersh’s concerns about Moss with respect to the lead po-
sition at issue, which focuses more on interpersonal skills. Moss’s
certificates do not cast doubt on Kersh’s concerns about Moss’s in-
terpersonal skills or her tendency to disregard practices with which
she disagreed.
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8 Opinion of the Court 22-13956
With respect to Moss’s additional arguments—i.e. the alleg-
edly inconsistent reasons given for the decision,4 and Moss’s argu-
ment that Kersh’s belief that Moss disregarded practices with
which she disagreed is inconsistent with a performance evaluation
conducted by Kersh—both arguments fail. Thomas’s statement to
Moss that there were no right or wrong answers to the interview
questions is not inconsistent with Kersh’s statement that Jackson
answered the interview questions better than Moss. Further,
Thomas was not the decisionmaker, and there is no evidence in the
record that Kersh, the decisionmaker, thought that there were no
right or wrong answers. As SVH points out, a candidate’s re-
sponses to subjective interview questions are not a basis for a dis-
crimination claim so long as the employer can explain and show
that its reasoning makes sense, which SVH has done here. Finally,
the fact that Kersh, in a performance review, applauded Moss’s at-
tempts to ensure that the standards of the hospital were upheld to
4 Kersh explained that her reasons for preferring Jackson included:
Jackson’s better answers during the interviews (including especially with re-
spect to the safety hypothetical); Kersh’s observations while working with
both candidates, revealing that Moss, unlike Jackson, was reluctant to bring
issues to the attention of the nurse manager for consideration and consulta-
tion, and that Moss had a tendency to disregard practices with which she dis-
agreed, and that Jackson would be better than Moss with respect to the com-
munication and interpersonal skills important in the lead position; and finally,
notwithstanding Moss’s longer seniority with SVH, both candidates had over
thirty years of relevant experience. On the other hand, when Moss talked to
Thomas, the Human Resources representative, Thomas told her that there
were no right or wrong answers to the interview questions and that Jackson
received the promotion because she was a better leader.
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22-13956 Opinion of the Court 9
prevent safety issues is not inconsistent with Kersh’s concerns
about Moss’s interpersonal skills and her tendency to disregard
practices with which she disagreed. Moss fails to offer any evidence
to rebut Kersh’s assertion that Jackson was better at bringing safety
concerns to the attention of Kersh. See Chapman, 229 F.3d at 1030;
see Kragor, 702 F.3d at 1310-11.
While it is clear that Moss sincerely believes she was the
more qualified candidate, we need not address that issue. Our law
is clear. “The inquiry into pretext centers on the employer’s beliefs,
not the employee’s beliefs and, to be blunt about it, not on reality
as it exists outside of the decision maker’s head.” Alvarez v. Royal
Atl. Devs., Inc., 610 F.3d 1253, 1266 (11th Cir. 2010). The issue is
whether the employer honestly believed its reasons for the deci-
sion, or whether the reasons were a mere pretext to cover discrim-
ination based on race. Id. Relevant in this regard is the fact that
Moss has pointed to no evidence that Kersh harbored any racial
animus. Indeed, Moss admitted that she had never heard Kersh
make any derogatory comments about African Americans.
For the foregoing reasons, we cannot conclude that the
magistrate judge erred in holding that Moss had failed to prove that
Kersh’s reasons for not promoting Moss were mere pretext for dis-
crimination based on race.
Moss also argues that she presented a convincing mosaic of
circumstantial evidence, but she fails to offer more than specula-
tion as to SVH’s reasoning for the promotion decision. See Cordoba,
419 F.3d at 1181. Specifically, Moss testified that her being African
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10 Opinion of the Court 22-13956
American and Jackson being Caucasian was the only basis for her
racial discrimination claim because she could not identify any other
reason for why she was denied the promotion. That statement and
the arguments she presents on appeal fail to identify weaknesses,
inconsistencies, or contradictions in SVH’s explanation. For the
reasons noted above in our discussion of the pretext issue, we can-
not conclude that the magistrate judge erred in rejecting Moss’s
mosaic argument. The circumstantial evidence in this summary
judgment record would not allow a jury to infer intentional dis-
crimination.
II.
We turn now to Moss’s argument that her later nurse man-
ager, Regis, disciplined her in retaliation for her having filed an
EEOC charge against SVH. Under Title VII, an employer may not
retaliate against an employee because she has opposed any employ-
ment practice that Title VII makes unlawful. § 2000e-3(a). The
three-step, burden-shifting McDonnell-Douglas framework also ap-
plies to cases of retaliation relying on circumstantial evidence.
Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010).
Retaliation claims arising under § 1981 are analyzed under the same
framework as those arising under Title VII. Gogel v. Kia Motors Mfg.
of Ga., Inc., 967 F.3d 1121, 1134 (11th Cir. 2020) (en banc).
To establish a prima facie case of retaliation, a plaintiff must
show that (1) she engaged in a statutorily protected activity; (2) she
suffered an adverse employment action; and (3) there is a causal
link between the protected activity and the adverse action.
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22-13956 Opinion of the Court 11
Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001).
The standard for determining what constitutes an adverse employ-
ment action is different in retaliation claims than it is for claims of
discrimination. See Burlington N. & Santa Fe Ry. Co. v. White, 548
U.S. 53, 68 (2006). A plaintiff must show that a reasonable em-
ployee would have found the challenged action materially adverse,
which in this context means it well might have dissuaded a reason-
able worker from making or supporting a charge of discrimination.
Id. “Trivial harms” are not adverse employment actions. See id.
The causal link element is construed broadly so that a plain-
tiff merely has to prove that the protected activity and the negative
employment action are not completely unrelated. Pennington, 261
F.3d at 1266. The plaintiff may prove causation by showing that
the employer knew of her statutorily protected activity and there
was a close temporal proximity between this awareness and the ad-
verse employment action. Higdon v. Jackson, 393 F.3d 1211, 1220
(11th Cir. 2004). A putative causal connection between the plain-
tiff’s protected conduct and the materially adverse decision may be
undermined by evidence of a superseding cause of the adverse de-
cision. See Fleming v. Boeing Co., 120 F.3d 242, 248 (11th Cir. 1997)
(no genuine issue of material fact as to a causal connection between
plaintiff’s complaints of harassment and the adverse employment
decision where plaintiff failed a required typing test in the interim).
A decisionmaker cannot have been motivated to retaliate by some-
thing unknown to her. Martin v. Fin. Asset Mgmt. Sys., Inc., 959 F.3d
1048, 1053 (11th Cir. 2020). An argument that the decisionmaker
must have known about the protected activity is too speculative
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12 Opinion of the Court 22-13956
because evidence that she could have known about it is not the
same as evidence that she did. Id. at 1054.
If the plaintiff has successfully made out a prima facie case,
the burden of production then shifts to the employer to articulate
a legitimate, nondiscriminatory reason for the adverse employ-
ment action. Shannon v Bellsouth Telecomms., Inc., 292 F.3d 712, 715
(11th Cir. 2002). If the employer meets its burden, the presumption
of retaliation disappears, and the plaintiff must then show that the
reasons offered by the employer were merely a pretext for retalia-
tion. Id. The plaintiff can do so by showing that it was more likely
that a retaliatory reason motivated the employer or by pointing to
“weaknesses, inconsistencies, incoherencies, or contradictions” in
the explanation. Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1265
(11th Cir. 2010). If the proffered reason is one that would motivate
a reasonable employer, a plaintiff cannot simply quarrel with the
wisdom of the employer’s decision and must instead meet that rea-
son head on and rebut it. Chapman, 229 F.3d at 1030. The plaintiff
must prove “that the desire to retaliate was the but-for cause of the
challenged employment action.” Univ. of Tex. Sw. Med. Ctr. v. Nas-
sar, 570 U.S. 338, 352 (2013).
Here, the magistrate judge did not err in concluding that
Moss failed to establish causation between the alleged retaliatory
action taken against her and her pending EEOC charge. Moss’s
only evidence that Regis knew about her EEOC charge was that
Regis responded affirmatively when asked by Moss whether Regis
knew about what was going on. This vague statement does not
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22-13956 Opinion of the Court 13
support the conclusion that Regis knew that Moss had filed an
EEOC charge because a claim that Regis must have known that she
had engaged in a protected activity is not the same as claiming that
Regis actually knew about it. See Martin, 959 F.3d at 1054. Her
statement to Regis did not include any information that would
have suggested that Moss was referring to her race discrimination
charge against SVH. Her argument is also contradicted by her tes-
timony that she never told Regis that she had filed an EEOC
charge. See Martin, 959 F.3d at 1053. Further, the fact that Moss
admitted to committing the violation for which she was disciplined
undermines her retaliation claim. See Fleming, 120 F.3d at 248. Fi-
nally, even if Moss were able to meet her prima facie burden, her
argument that Regis’s discipline was retaliatory discrimination fails
because she fails to identify any weaknesses, inconsistencies, or
contradictions in SVH’s explanation of its disciplinary measures.
See Alvarez, 610 F.3d at 1265. A reasonable employer would likely
discipline an employee who took 22 minutes to notice a patient go-
ing off the monitor and who left her workstation to take an unau-
thorized break. See Chapman, 229 F.3d at 1030. Additionally, the
severity of the discipline—a single day suspension with pay and a
90-day probationary period—was exactly what SVH’s disciplinary
policy set forth which supports the conclusion that Regis’s action
was not retaliatory in nature.
AFFIRMED.
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