Bobbie Breeding v. Integrated Behavioral Health, Inc.

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10374
Non-Argument Calendar
____________________
BOBBIE BREEDING,
Plaintiff-Appellant,
versus
INTEGRATED BEHAVIORAL HEALTH INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:20-cv-00551-RDP
____________________
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2 Opinion of the Court 22-10374
Before J ORDAN, LAGOA , and ANDERSON, Circuit Judges.
PER CURIAM:
Bobbie Breeding sued her employer Integral Behavioral
Health, Inc. (“IBH”), alleging Title VII sex discrimination and retal-
iation and violations of the Equal Pay Act following her termina-
tion from the company. The district court granted summary judg-
ment in favor of IBH on all counts, but on appeal Ms. Breeding only
challenges the district court’s grant of summary judgment as to the
Title VII sex-discrimination claim.
Ms. Breeding argues that the district court improperly ap-
plied the mixed-motive standard because IBH did not assert that
standard in its motion for summary judgment. She also contends
that the district court improperly analyzed the case under the
McDonnell Douglas framework. Lastly, Ms. Breeding argues that,
even if the district court correctly applied the mixed-motive frame-
work, it erred in concluding that there were no genuine dispute of
material fact as to whether her gender motivated her termination.
I
From 2007 to 2016, Ms. Breeding worked as director of sales
at American Behavioral Health Benefit Managers. Her duties in-
cluded both generating new sales and managing accounts. In 2016,
IBH purchased American Behavioral; Ms. Breeding’s job duties did
not change, but her sales goal increased. In May 2018, David
Sockel became the Chief Commercial Officer of IBH and was in
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22-10374 Opinion of the Court 3
charge of a team of three men and five women, including Ms.
Breeding.
In November of 2018, Mr. Sockel believed that his sales team
needed more “hunters,” that is, salespersons who work solely to
generate new business, as opposed to “farmers,” whose responsi-
bilities are oriented towards administration and account manage-
ment. To fill the “hunter” role, Mr. Sockel hired Peter Hendrixson.
During the first quarter of 2019, IBH was underperforming
financially. In response, the company instituted a reduction-in-
force mandate. To comply with the mandate, Mr. Sockel evaluated
who on his team he should terminate and concluded that Ms.
Breeding was a “clear cut.” According to Mr. Sockel, Ms. Breeding
and Carol Pinkerton performed essentially the same job in the
same location, and Ms. Pinkerton was outperforming Ms. Breed-
ing. For example, at the time of termination, Ms. Breeding had
closed only $8,000 in annualized project revenue, whereas Ms.
Pinkerton had closed $18,360 and was finalizing a sale worth over
$50,000. Mr. Sockel identified Ms. Breeding and two other employ-
ees (Linda Murphy and Brian Thomas) as possible employees to be
terminated.
On June 7, Mr. Sockel terminated Ms. Breeding and Linda
Murphy. Brian Thomas resigned before IBH notified him of his
termination. After the departure of these three employees, Mr.
Sockel’s sales team consisted of three females and two males.
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4 Opinion of the Court 22-10374
After her termination, Ms. Breeding filed a Title VII sex dis-
crimination claim against IBH. In support of her claim, she high-
lighted numerous comments and actions by Mr. Sockel which she
suggested constituted bias against women. For example, Mr.
Sockel allegedly yelled and cursed at Ms. Breeding, asked her why
she was still working when her husband was financially successful,
and suggested that customers prefer certain female employees (like
Ms. Pinkerton) because of their physical appearance. Additionally,
Ms. Breeding asserted that Mr. Sockel’s “farmer” and “hunter” clas-
sifications, the reduction of her sales opportunities and responsibil-
ities, and Mr. Sockel’s failure to place her on the performance im-
provement plan all indicate sex-based discrimination.
II
We review
de novo a district court’s granting of summary
judgment, construing all facts and drawing all reasonable infer-
ences in favor of the non-moving party.
See Jefferson v. Sewon,
Am., Inc., 891 F.3d 911, 919 (11th Cir. 2018). Summary judgment
is appropriate when the record evidence shows that there are no
genuine disputes as to any material facts and the moving party is
entitled to summary judgment as a matter of law.
See Fed. R. Civ.
P. 56(a). An issue of fact is not genuine unless a reasonable jury
could return a verdict in favor of the non-moving party.
See Mor-
ton v. Kirkwood, 707 F.3d 1276, 1284 (11th Cir. 2013). We have
consistently held that conclusory allegations have no probative
value at summary judgment unless supported by specific evidence.
Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir. 2010).
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22-10374 Opinion of the Court 5
We will give credence to evidence favoring the non-movant, as
well as uncontradicted and unimpeached evidence from disinter-
ested witnesses that supports the moving party.
See Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000).
III
Ms. Breeding first argues that the district court should not
have applied the mixed-motive standard in its order granting sum-
mary judgment because IBH did not make any argument as to that
standard in its summary judgment motion. Because the issue was
sufficiently raised by the parties in the summary judgment briefing,
we affirm.
As background, there are two distinct standards of proof that
a plaintiff may use to prove a Title VII gender discrimination claim:
single-motive and mixed-motive.
See Quigg v. Thomas County
School Dist., 814 F.3d 1227, 1235 (11th Cir. 2016). The single-mo-
tive standard requires a plaintiff to prove that bias against a pro-
tected class was “the true reason for the adverse [employment] ac-
tion.”
Id. The lesser, mixed-motive standard, meanwhile, requires
a plaintiff to prove that bias against a protected class “‘was a moti-
vating factor for’ an adverse employment action, ‘even though
other factors also motivated’ the action.”
Id. (quoting 42 U.S.C. §
2000e-2(m)). Ms. Breeding argues that the district court could not
have applied the mixed motive standard in its order granting
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6 Opinion of the Court 22-10374
summary judgment because IBH did not rely on it in its order
granting summary judgment.1
A district court cannot grant summary judgment on
“grounds not raised by a party” unless it first provided the parties
with “notice and a reasonable time to respond[.]” Fed. R. Civ. P.
56(f)(2). Generally, the “onus” is not on the district court to “distill
any possible argument which could be made based on the materials
before the court” but were not raised by either party.
See Blue
Cross and Blue Shield of Ala. v. Weitz, 913 F.2d 1544, 1549 (11th
Cir. 1990).
While it is true that IBH did not invoke (or even reference)
the mixed-motive standard in its motion for summary judgment,
see DE 32 at 22–25 Ms. Breeding focused exclusively on it. She
argued at length in her response that her gender was a motivating
factor in her termination.
See DE 37 at 27–32. In its reply, IBH
acknowledged that Ms. Breeding used a mixed motive theory and
that she “failed to prove gender discrimination under any theory or
standard.” DE 44 at 9. Under the circumstances, the district court
was permitted to consider the argument because it was raised by
Ms. Breeding herself and addressed (albeit briefly) by IBH.
1 Oddly, Ms. Breeding seemingly argues that the district court should have
applied a higher standard (i.e., the single motive standard) to her Title VII sex
discrimination claim. Application of this higher standard would not have
changed the district court’s decision.
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22-10374 Opinion of the Court 7
Ms. Breeding cites to
Gentry v. Harborage Cottages-Stuart,
LLLP, 654 F.3d 1247, 1261 (11th Cir. 2011) to support her argument
that the district court improperly applied the mixed motive stand-
ard. In
Gentry, we vacated the district court’s grant of summary
judgment on two claims (alleging violations of the Interstate Land
Sales Full Disclosure Act’s Anti-Fraud Provision and the Florida
Deceptive and Unfair Trade Practices Act) even though the plaintiff
did not seek summary judgment on those two claims.
See id. We
held that this was a violation of Rule 56(f)’s requirement that a dis-
trict court must give the parties “notice and a reasonable time to
respond” before granting summary judgment on “grounds not
raised by a party.”
Id. (quoting Fed. R. Civ. P. 56(f)). But here Ms.
Breeding argued that her gender was a motivating factor in her ter-
mination in her response to IBH’s summary judgment motion.
IBH had an opportunity to respond to the argument and did in fact
briefly respond to the argument.
In short, the district court did not err in applying the mixed
motive standard in granting summary judgment on Ms. Breeding’s
mixed motive claim.
IV
Next, Ms. Breeding argues that the district court misapplied
the mixed-motive standard by improperly interjecting “pretext”
into its analysis, which is relevant to a single-motive framework but
is not relevant to a mixed-motive framework. In support of her
argument, Ms. Breeding points to certain phrases the district court
used that are typically used when applying the
McDonnell Douglas
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8 Opinion of the Court 22-10374
standard—such as her failure to meet certain evidence “head on”
and the use of the term “pretext.” In response, IBH argues that this
argument is overly formalistic; the relevant question is whether
there is a genuine issue of material fact that gender played a role in
Ms. Breeding’s termination.
A mixed-motive analysis addresses whether “bias based on
sex or gender ‘was a motivating factor’ for an adverse employment
action, ‘even though other factors also motivated’ the action.”
Quigg v. Thomas Cnty. School Dist., 814 F.3d 1227, 35 (11th Cir.
2016) (quoting 42 U.S.C. s. 2000e-2(m)). Unlike the single-motive
analysis, which demands a “three-part burden shifting framework
for determining liability” by which a plaintiff must demonstrate
that an employer’s “legitimate, non-discriminatory reason” is pre-
textual, the mixed-motive analysis requires a plaintiff to show only
that “(1) the defendant took an adverse employment action against
the plaintiff; and (2) [a protected characteristic] was a motivating
factor for the adverse employment action.”
Quigg, 814 F.3d at 1239
(quoting
White v. Baxter Healthcare Corp., 533 F.3d 381, 400 (6th
Cir. 2008)).
The district court properly applied the mixed-motive analy-
sis. It considered whether Ms. Breeding “presented sufficient evi-
dence for a reasonable jury to conclude . . . that sex was a motivat-
ing factor in [Ms. Breeding’s] termination.” DE 45 at 13. (emphasis
added). In applying this standard, the district court explicitly de-
clined to apply the single-motive,
McDonnell Douglas framework
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22-10374 Opinion of the Court 9
because Ms. Breeding “proceeds only under a mixed motive the-
ory.”
Id. at 12 n. 6.
The district court then analyzed each remark and action that
Ms. Breeding characterized as evidence of gender bias and con-
cluded that the evidence failed to demonstrate that gender influ-
enced the termination decision. The district court also reviewed
Ms. Breeding’s evidence as a whole, analyzed whether that evi-
dence was indicia of gender bias, and concluded that there was no
genuine dispute as to whether sex motivated Ms. Breeding’s termi-
nation. This constituted a sound mixed-motive analysis.
Further, the district court’s ultimate conclusion was that sex
did not play a role in the decision-making process. Accordingly, no
matter which framework the district court employed, its conclu-
sion would have remained the same.
See, e.g., Williams v. Hous.
Auth. of Savannah, Inc., 834 F. App'x 482, 491 (11th Cir. 2020) (find-
ing that “regardless of the theory or framework we apply, no rea-
sonable jury could conclude” that the termination was “motivated
by bias against [the plaintiff’s] sex”).
V
To survive summary judgment on a mixed-motive claim, a
plaintiff must offer “evidence sufficient to convince a jury that: (1)
the [employer] took an adverse employment action against [her];
and (2) a protected characteristic was a motivating factor for the
[employer’s] adverse employment action.”
Bowen v. Manheim
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Remarketing, Inc., 882 F.3d 1358, 1364 (11th Cir. 2018) (
quoting
Quigg, 814 F.3d at 1239) (emphasis in original).
The first prong is undisputed—Ms. Breeding’s termination
was an adverse employment action. To satisfy the second prong,
Ms. Breeding has to show that a reasonable jury could conclude
that sex motivated her termination.
Ms. Breeding relied upon several of Mr. Sockel’s allegedly
discriminatory remarks and actions. The district court concluded
that this evidence failed to create a genuine issue of fact as to
whether sex motivated Ms. Breeding’s termination. We agree.
A
Remarks based on sexual stereotypes “do not inevitably
prove that gender played a part in a particular employment deci-
sion.”
Quigg, 814 F.3d at 1241 (quoting
Price Waterhouse v. Hop-
kins, 490 U.S. 228, 251 (1989)). A plaintiff who supports her mixed-
motive claim by relying upon remarks in the workplace “must
show the circumstances surrounding the remarks create a genuine
issue of material fact that the employer actually relied on her [sex
or] gender in making its decision.”
Id. (internal quotation marks
and citation omitted).
To support her gender discrimination claim, Ms. Breeding
relies on numerous comments and statements, including: Mr.
Sockel yelling and cursing at her; Mr. Sockel’s remarks that certain
female employees were favored by clients because of their appear-
ance; Mr. Sockel questioning Ms. Breeding about why she’s still
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22-10374 Opinion of the Court 11
working despite her husband’s high income; and being character-
ized as a “farmer” rather than a “hunter.” We agree with the dis-
trict court that these remarks, considered in the light most favora-
ble to Ms. Breeding, do not create a jury question as to whether
gender was a motivating factor in her termination.
First, there is no allegation that Mr. Sockel’s yelling and curs-
ing at Ms. Breeding was due to her gender. Mr. Sockel’s demeanor
towards Ms. Breeding was no different than the way Mr. Sockel
spoke to the entire team (men and women) on sales calls.
IBH’s classification of employees as “farmers” and “hunters”
was not gender-based but was instead predicated on employees’
duties. “Hunters” facilitated sales, while “farmers” performed ad-
ministrative duties. There were four farmers, two of which are
male and two of which are female. Accordingly, the “farmer” and
“hunter” dichotomy does not indicate gender bias.
Mr. Sockel’s alleged comment that “clients only liked [Ms.]
Pinkerton because of [her] physical appearance,” is not indicative
of gender bias. While this comment is off-putting, it does not indi-
cate that Mr. Sockel’s gender-related comments were so wide-
spread as to motivate the decision to terminate Ms. Breeding. In
Quigg, for example, the decisionmakers voted against hiring a
woman, and supported their vote with sentiments such as “it is
time to put a man in there,” emphasized the need for a “hatchet
man,” and indicated that they would not vote to hire the female
plaintiff, because she would require “a strong male to work under
her to handle her problems . . . .” 814 F.3d at 1241. In that case, it
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12 Opinion of the Court 22-10374
was clear that there was a genuine dispute of fact as to whether
gender bias pervaded the decision-making process. Here, con-
versely, the comments are not so directly linked to the decision to
fire Ms. Breeding, nor sufficiently sexual in nature, that they indi-
cate a discriminatory termination process.
Mr. Sockel’s remark about why Ms. Breeding was still work-
ing despite her husband’s income is the piece of evidence that
comes closest to establishing a dispute of fact that Mr. Sockel acted
with gender-based animus. It fails, however, to raise a reasonable
inference that IBH “actually relied on [Breeding’s] gender in mak-
ing its decision” to terminate her.
See Price Waterhouse, 490 U.S.
at 251. In other words, Ms. Breeding has failed to connect this re-
mark to IBH’s decision-making process, rendering it a stray re-
mark.
If this comment was coupled with other, more probative
pieces of evidence, perhaps a reasonable jury could conclude that
sex motivated Breeding’s termination. When viewing the record
as a whole, however, the comments and remarks are not sufficient
to convince a reasonable jury that sex had any bearing on the ter-
mination. This is especially true when considering that Ms. Breed-
ing’s sales assignments were given to another woman, that she was
designated for termination alongside both a woman and a man,
and that Mr. Sockel’s sales team (after terminating Ms. Breeding)
was comprised of three women and two men.
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22-10374 Opinion of the Court 13
B
In addition to relying on these remarks, Ms. Breeding also
relies on Mr. Sockel’s allegedly discriminatory actions to prove gen-
der bias. These actions include: sales opportunities being directed
away from her; a reduction of her responsibilities; and IBH’s failure
to follow its discipline Performance Improvement Process with
her.
Ms. Breeding argues that Mr. Sockel directed “sales oppor-
tunities away from Ms. Breeding and to [Ms.] Pinkerton.” This
does not indicate sex-based discrimination for two reasons. First,
Ms. Pinkerton was a better performing salesperson than Ms. Breed-
ing, and the direction of sales opportunities to the better-perform-
ing salesperson does not run afoul Title VII. Second, Ms. Pinkerton
is also a woman, which undermines the argument that sex moti-
vated the re-direction of sales opportunities.
Ms. Breeding also points to Mr. Sockel’s decision to reduce
her responsibilities, which made it more difficult for her to meet
her sale’s goal. This also fails to show sex-based animus towards
Ms. Breeding—it is reasonable that Mr. Sockel would reduce the
sales opportunities of the lesser-performing salesperson. And Ms.
Breeding’s argument that this may be a “pretext to conceal Mr.
Sockel’s true motivation” is largely speculative because Mr.
Sockel’s sales team continued to be comprised of three women and
two men. As noted, two of the four individuals with “farmer” re-
sponsibilities (Mr. Thomas and Mr. Bosche) were male.
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14 Opinion of the Court 22-10374
Ms. Breeding finally argues that IBH’s alleged failure to fol-
low its “Performance Improvement Process” serves as evidence of
pretext. But that is only true where sex motivates an employer’s
decision to forego that internal process.
See Mitchell v. USBI Co.,
186 F.3d 1352, 1355-56 (11th Cir. 1999) (“Standing alone, deviation
from a company policy does not demonstrate discriminatory ani-
mus.”). Mr. Sockel noted that he did not bother to employ the
process because Ms. Breeding was a “long-term sales folk[ ] who
[has] not achieved in the past 6+ months and [is] unlikely to change
trajector[y].” Moreover, because the reason for her termination
was the reduction-in-force mandate, placing Ms. Breeding on a per-
formance improvement plan would have been counter to the com-
pany’s goal of reducing its workforce.
Construing the evidence in the light most favorable to Ms.
Breeding, there is no dispute of material fact that the termination
of Ms. Breeding was motivated by bias against her sex.
VI
We affirm the district court’s order granting summary judg-
ment in favor of IBH.
AFFIRMED.
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