Jessica Ivey v. Crestwood Medical Center

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11936
Non-Argument Calendar
____________________
JESSICA IVEY,
Plaintiff-Appellant,
versus
CRESTWOOD MEDICAL CENTER,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 5:21-cv-01053-CLS
____________________
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2 Opinion of the Court 23-11936
Before WILSON, G RANT, and L UCK , Circuit Judges.
PER CURIAM:
Jessica Ivey, an Asian woman, sued her employer,
Crestwood Medical Center, alleging various forms of
discrimination. She alleged (1) discriminatory discharge under 42
U.S.C. § 1981; (2) racially hostile work environment under Title
VII; (3) hostile work environment under 42 U.S.C. § 1981; (4)
retaliation under Title VII; and (5) retaliation under 42 U.S.C.
§ 1981.
The district court granted summary judgment to Crestwood
on all counts. The court found that Ivey had not established a
prima facie case of racial discrimination because she had not
identified a similarly situated employee who was treated more
favorably. She also had not presented evidence sufficient to
establish a case of hostile work environment because she only
alleged one isolated racial remark. Finally, she did not establish a
case of retaliation because she could not show causation between
her protected activity and termination.
We review de novo a district court’s grant of summary
judgment. Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1263 (11th
Cir. 2010). We can affirm the district court’s judgment on “any
basis supported by the record, regardless of whether the district
court decided the case on that basis.” Club Madonna, Inc. v. City of
Miami Beach, 924 F.3d 1370, 1378 (11th Cir. 2019).
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23-11936 Opinion of the Court 3
On appeal, Ivey argues that the district court erred because,
first, it erred in concluding that she failed to make a prima facie case
of race discrimination. Next, she argues that she presented
evidence of severe and pervasive discrimination due to her race.
And third, she argues that she did show causation because a close
temporal proximity existed between her protected activity and her
termination. Alternatively, she argues that her drug screening was
a materially adverse action taken in retaliation for her protected
conduct. None of Ivey’s arguments are persuasive.
First, Ivey’s claim of discriminatory discharge fails because,
regardless of whether she made out a prima facie case of
discrimination, she did not present any evidence that Crestwood’s
race-neutral reason for her termination was pretextual. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973); Tynes v.
Florida Dep’t of Juv. Just., 88 F.4th 939 (11th Cir. 2023). Crestwood
tried to reach a compromise with Ivey; it emailed and called her
multiple times, offered her other positions at the hospital with the
same or higher pay, and yet she declined every offer. That refusal
to return to a normal schedule was a legitimate, nondiscriminatory
reason to terminate Ivey’s employment with Crestwood, and Ivey
has not presented any evidence to the contrary. She does not even
argue in her brief that this explanation was pretextual, let alone that
Crestwood’s proffered reason was both false and that the true
reason was discriminatory. See St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 515 (1993). In short, Ivey has not shown that there is a
genuine dispute that Crestwood terminated her employment on
account of her race.
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4 Opinion of the Court 23-11936
Second, Ivey’s claim of hostile work environment fails
because she has not presented evidence that the alleged harassment
she suffered was sufficiently severe or pervasive to support this
kind of claim. A workplace is considered “hostile” when it is
“permeated with discriminatory intimidation, ridicule, and insult,”
that is “sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working
environment.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)
(quotations omitted). Even if offensive or racially derogatory,
“sporadic and isolated” comments are not enough to create a
hostile work environment. See McCann v. Tillman, 526 F.3d 1370,
1379 (11th Cir. 2008). Here, Ivey has only presented a single
incident of an inappropriate comment about her race; her
supervisor allegedly told her that the “China virus is from your
people.” Other than that, she alleges that this supervisor told other
nurses not to help her, told Ivey to “shut it,” scheduled Ivey’s lunch
breaks, and slapped Ivey on the bottom once. These secondary
allegations do not show a racial motive, nor do the allegations in
combination rise to the level of severity required to plausibly
demonstrate a hostile work environment.
Third, Ivey’s retaliation claim fails because she did not show
causation between her protected activity and any adverse
employment action she suffered. To make out a prima facie case
of retaliation, Ivey must show (1) “that she engaged in statutorily
protected activity,” (2) “that she suffered an adverse action,” and
(3) “that the adverse action was causally related to the protected
activity.” Gogel v. Kia Motors Mfg. of Georgia, Inc., 967 F.3d 1121,
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23-11936 Opinion of the Court 5
1134 (11th Cir. 2020) (en banc) (quotations omitted). Although
temporal proximity can be used to create a genuine issue of
material fact as to the causation element of retaliation, “mere
temporal proximity, without more, must be very close.” Thomas
v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007)
(quotation omitted). Here, Ivey’s protected activity took place on
June 12, 2020, but Crestwood did not terminate her until
September 3, 2020. That nearly-three-month gap is insufficient by
itself to create a triable issue of fact about whether Crestwood
terminated her because of her protected activity.
Alternatively, Ivey argues that Crestwood retaliated against
her by subjecting her to drug screening on the same day that she
reminded decisionmakers of her discrimination complaint. An
action is materially adverse if it “well might have dissuaded a
reasonable worker from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 68 (2006) (quotations omitted). It must be significant, not
merely “petty slights or minor annoyances.” Id. Ivey’s drug test
did not rise to the requisite significance to constitute a materially
adverse employment action. Her drug test came back clean, she
only missed three days of work, and she was fully compensated for
that missed time. In short, she suffered no tangible harm, but the
antiretaliation law only protects an individual “from retaliation
that produces an injury or harm.” Id. at 67. And even if being
subject to drug screening were an adverse employment action,
Crestwood offered a legitimate reason for the drug test—Ivey’s
colleagues reported erratic, unsafe, paranoid behavior, and
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6 Opinion of the Court 23-11936
evidence of drug miscounts. Ivey did not present any evidence that
this explanation was false and that the true reason was retaliatory.
The judgment of the district court is therefore AFFIRMED.
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