Campbell v. Northway Health and Rehabilitation LLC

Filing 37

MEMORANDUM OPINION, as set out, re dft's Motion for Sumjgm 16 . Pla has failed to show that dft's proffered legitimate reason for terminating her is pretext. Because pla has not carried her burden, dft's Motion for Sumjgm is due to be granted on both of pla's claims. An order granting the Motion will be entered contemporaneously herewith. Signed by Judge Sharon Lovelace Blackburn on 8/19/14. (CTS, )

FILED
2014 Aug-19 PM 02:50
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MARY CAMPBELL,
Plaintiff,
vs.
NORTHWAY HEALTH AND
REHABILITATION, LLC,
Defendant.

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CASE NO. 2:12-CV-3455-SLB

MEMORANDUM OPINION
This case is before the court on defendant’s Motion for Summary Judgment. (Doc.
16.)1 Plaintiff claims that defendant, her former employer, discriminated against her based
on her race and retaliated against her for asserting rights under the Family Medical Leave Act
(“FMLA”). Upon consideration of the Motion, the supporting and opposing memoranda,
arguments of counsel and the relevant law, the court finds, for the reasons stated below, that
defendant’s Motion is due to be granted.
SUMMARY JUDGMENT STANDARD
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure (“the Federal Rules”),
summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no genuine

1

Reference to a document number, (“Doc. ___”), refers to the number assigned to
each document as it is filed in the court’s record.
1

issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23
(1986); Waddell v. Valley Forge Dental Associates, Inc., 276 F.3d 1275, 1279 (11th Cir.
2001). The moving party bears the initial burden of demonstrating the absence of a genuine
issue of material fact and that it is therefore entitled to judgment as a matter of law. See
Celotex, 477 U.S. at 323; Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
Once the moving party has met its burden, Rule 56(e) of the Federal Rules requires that the
nonmoving party go beyond the pleadings and show that there is a genuine issue for trial. See
Fed. R. Civ. P. 56(e); see also Celotex, 477 U.S. at 324–25. “There is a genuine issue of
material fact if the nonmoving party has produced evidence such that a reasonable factfinder
could return a verdict in its favor.” Waddell, 276 F.3d at 1279; see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986).
In deciding a motion for summary judgment, the court’s function is not to “weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine
issue for trial.” Anderson, 477 U.S. at 249. Determining credibility, weighing evidence, and
drawing legitimate inferences from the facts are all functions of the jury, see id. at 255;
therefore, the court must accept as true all evidence favoring the nonmoving party and draw
all justifiable inferences from the evidence in that party’s favor. Nevertheless, the nonmoving
party need not be given the benefit of every inference but only of every reasonable inference.
See Brown v. City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988).

2

STATEMENT OF FACTS
Defendant hired plaintiff on June 12, 2005 as a Licensed Practical Nurse [“LPN”].
(Campbell Depo. (doc. 18-1) at 60:8-11, 85:20-22.) During her employment, plaintiff took
FMLA leave twice, once beginning in June 2009 and once in September 2010. (Id. at 59:1014; doc. 19 at 2-3.) On both occasions, plaintiff asked for “time off” and Northway’s
business office gave plaintiff an FMLA form to fill out. (Campbell Depo. at 137:1-18.)
On June 2, 2012, plaintiff and her sister were in the car, waiting at a stoplight, when
they were hit from behind. (Id. at 112:5-17; doc. 14 at 3 ¶ 10.) Plaintiff broke her two front
teeth and her shoulder and arm were swollen. (Campbell Depo. at 112:5-17.) Plaintiff was
not scheduled to work June 3rd. (Doc. 19 at 5; doc. 14 at 3 ¶ 11.) Plaintiff called the nurse
line each morning from June 4th to June 7th to report that she would be absent, and June 8th
was her off day. (Doc. 19 at 5; Campbell Depo. at 122:17-22, 123: 6-7, 142:15-16.) On the
voicemails, plaintiff “told [Sloan Phillips] about the accident and that [she] wouldn’t be
coming in, the doctor just wanted [her] to stay close and just move around slowly until . . .
the pain and the swelling subsided some.” (Campbell Depo. at 122:17-22.)
Phillips testified that she told plaintiff on June 5th “that if she was going to be off
anymore, that she needed to file FMLA.” (Phillips Depo. at 21:3-6.) Phillips is responsible
for reporting FLMA-qualifying events. (Id. at 24:6-9.) There is some ambiguity as to what
details Phillips told Freddy Skelton about plaintiff’s absence. Phillips was asked “[D]id you
ever tell anybody about the fact that you thought that Mary might need FMLA leave, other

3

than Mary, on the 5th?” She responded, “Freddy Skelton.” (Phillips Depo. at 24:10-14.)
However, Phillips subsequently stated that she did not remember what she said to Skelton
other than that plaintiff would be off, did not remember if she mentioned the FMLA to
Skelton, and did not understand what injuries plaintiff suffered in the car wreck. (Phillips
Depo. at 24:15-25:10.) Skelton must sign off on every FMLA leave. (Skelton Depo (doc. 19)
25: 19-20.) Skelton knew about the car wreck after it occurred, but did not recall the details
of it at his deposition. (Id. at 25:1-4.) On June 9th, plaintiff returned to work as scheduled,
a doctor’s note in hand excusing her for her days missed. (Doc. 14 at 3 ¶ 15; doc. 15 at 3 ¶
15.) Plaintiff never completed FMLA forms regarding her absences, and defendant did not
designate plaintiff’s absences between June 4th and June 8th as FMLA leave. (See doc. 17
at 6 13; doc. 22 at 6; Campbell Depo. at 246:11-23.) Plaintiff worked June 9th, 10th, 12th
and the morning of the 13th. (Campbell Depo. at 143:6-144:7; 146:22-147:6; 149:7-15.)
Plaintiff’s broken teeth hurt. (Campbell Depo. at 157:12-158:15.) She took Tylenol
on June 9th and 10th, but on the 13th, she switched to Lortab. (Id. at 159:7-160:2.) On the
12th, plaintiff called Warrior Dentistry to make a 12:30 appointment for the following day,
June 13th, knowing that if she kept her appointment, someone would have to cover until 3:00
when her shift ended. (Id. at 143:3-5, 146:2-147:2, 161:18-22.) She was going to try to work
through the pain and cancel her appointment, but the pain was too much and she decided she
would keep the appointment after all. (Id. at 162:9-15, 187:21-188:12, 190:12-15.) On June
13th, plaintiff told Vaneese Cannon twice that she was going to a dentist appointment, once

4

at 10:00 a.m. and once just before she left. (Id. at 183:5-20.) Cannon is the R.N. Unit
Supervisor, from whom plaintiff thought she needed permission to leave. (Id. at 177:2-6.)
Cannon said, “Okay.” (Id. at 178:21-23.) Plaintiff also visited Phillips’s office at 10:00 a.m.
and told Phillips that she had a dental appointment and that one of her colleagues had agreed
to cover for her. As a Staff Development Nurse or “nurse manager,” Phillips can give
permission for LPNs to leave early, since she arranges who covers the carts. (Campbell
Depo. at 177:10-14; Phillips Depo. at 6:3-6, 6:24-7:4.) According to plaintiff, Phillips was
on the phone, but said “Okay, Mary Campbell.” (Campbell Depo. at 184:22-185:6.) That is
what Phillips calls plaintiff, Mary Campbell. (Id. at 182:19-20.) Phillips did not ask when
Campbell first found out about her appointment. (Id. at 185:16-18.) Plaintiff clocked out at
11:43 a.m., en route to Warrior Dentistry. (Doc. 19 at 71.)
Phillips’s and Cannon’s testimonies read differently from plaintiff’s. According to
Cannon, plaintiff talked with her at 11:00 a.m. to inform her that plaintiff was leaving at
11:30 for a dentist appointment. (Cannon Depo. at 28:3-7.) Cannon did not feel that she had
unilateral authority to allow LPNs to leave early.2 (Id. at 80: 11-22.) This was not a problem
on June 13th, however, because Cannon claims that plaintiff told her that plaintiff had
already spoken with Phillips, which Cannon took to mean that plaintiff had permission. (Id.
at 78:8-24, 92:14-93:1.) Cannon said, “Okay.” (Id. at 92:1-2, 17-18.)

2

At her deposition, Cannon confirmed that, “according to the job description,” she
did have authority to grant permission unilaterally. (Cannon Depo. at 87:9-12.)
5

According to Phillips, plaintiff saw her twice on June 13th, once when Phillips
clocked in, and once while making rounds. Plaintiff did not talk to her. (Phillips Depo. at
17:14-17.) Then, as plaintiff was leaving, she “peeked her head in the door and told [Phillips]
. . . that she had counted her cart with [her colleague LaPaula Davis] and she was leaving;
and she had gotten permission from [Cannon].” (Phillips Depo. at 8:20-24.)
Around seven o’clock the following morning, Freddy Skelton, defendant’s
administrator, called plaintiff and Cannon into his office. (Campbell Depo. at 164:8-17.)
According to plaintiff, he said, “[Y]ou left the building yesterday without permission and I
consider that neglect of duty and as of today you’re terminated from Northway.” (Campbell
Depo. at 165:15-18.) When plaintiff asked for a copy of the papers Skelton had put before
her, he told her no and slammed the door in her face. (Id. at 166:17-19.)
As administrator, Skelton had “managerial authority over every employee of
[d]efendant.” (Doc. 23-2 at 7.) He could discipline and fire employees, which he sometimes
did in consultation with HR. (Skelton Depo. at 7:17-8:5.) Plaintiff’s brief refers to Skelton
as “[d]efendant’s decisionmaker,” (doc. 22 at 24, 27), and “the decision-maker,” (id. at 8),3

3

Plaintiff puts forth as a “disputed material fact” the following: “Skelton called
Sabrina Bowling and Defendant’s Regional Director Don Lewis. Skelton does not consult
with Bowling and Lewis regarding the discipline of every employee. Bowling did not
speak to Skelton until after Plaintiff’s termination decision. Bowling stated she had no
input into the termination decision.” (Doc. 22 at 14.) Skelton testified to consulting with
Bowling and Lewis in making the decision. (Skelton Depo. at 133:4-135:12.) Plaintiff
never states her position in the conflict, if any. The court will assume that what actually
happened is immaterial to plaintiff’s argument, since plaintiff’s brief only uses the

6

and defendant agrees: “Skelton [was] the sole decision maker who determined [p]laintiff’s
discipline for leaving the facility.” (Doc. 17 at 11 ¶ 27.) When deciding whether to fire
plaintiff, Skelton considered plaintiff’s “past performance,” (Skelton Depo. at 134:16),
including her “previous conference reports,” (id. at 134:19-20). (See also id. at 104:21-23,
88:2-4.) Skelton testified that plaintiff’s conference reports written more than a year prior to
her termination were “not necessarily” relevant. (Id. at 65:21, 67:10-11, 67:21-68:3.) Plaintiff
had received two written warnings (one for unauthorized shift swapping and one for failing
to record a medication on a patient’s chart (“performance not up to standards”)) and one
verbal warning (for excessive tardiness) in the twelve months prior to her termination. (Id.
at 68:4-16, 70:2-11, 71:13-23; doc. 18-1 at 104, 108, 110.) Each of these conference reports
occurred within a five-day period in September 2011.
Skelton also went over “everything in the [three written] statements,” (Skelton Depo.
at 137:4-8; doc. 19 at 67-69), and “felt that [plaintiff] had significantly neglected her duties,
and given her history,” she should be terminated, (Skelton Depo. at 139:16-18). Phillips’s
written statement says, among other things, that plaintiff informed Phillips at 11:30 a.m. that
she was leaving for the dental appointment, “at no point did I [Phillips] give Mary Campbell
permission to count [the medicine] and leave the building,” and that Campbell knew about
the appointment the day before. (Doc. 19 at 69.) Cannon’s statement says, among other

conflicting testimony as proof that “Bowling and Skelton can’t keep their story straight.”
(Doc. 22 at 34.)

7

things, “I did not give her permission to pass the keys and leave. Stated it to me as if it were
pre-approved so I said, ‘O.K.’” (Doc. 19 at 68.) Skelton testified that “if [plaintiff] would
have asked Ms. Cannon in a timely fashion, gave the facility an opportunity to cover her
shift, there would not be any issue with her going to the dentist.” (Skelton Depo. at 98:2023.)
Plaintiff is white. She was one of very few white nurses at Northway. (Cannon Depo.
at 67:14-18) (“Q: You say that most of the employees [at Northway] are black employees,
correct? A: Oh, yes. Q: Overwhelming? A: Nintety-five – yes.”). Defendant moved Kimberly
Fuller, who is black, into plaintiff’s position to replace her. (Self Depo. (doc. 23-4) at 72:1316, 73:8-13; Cannon Depo. at 14:13-20.) In her Complaint, plaintiff asserts claims for race
discrimination, in violation of Title VII and § 1981, and FMLA retaliation. (Doc. 14 at 4-7.)
ANALYSIS
Because plaintiff has not presented evidence on which a reasonable jury could find
that the reasons given by defendant for her termination were pretext for unlawful
discrimination or retaliation, defendant is entitled to judgment as a matter of law on all of
plaintiff’s claims.
A. FMLA Retaliation
“In order to establish a prima facie case of retaliatory discharge or retaliation using
the McDonnell Douglas framework, a plaintiff must show that (1) she engaged in statutorily
protected conduct; (2) she suffered an adverse employment action; and (3) there is a causal

8

connection between the protected conduct and the adverse employment action.” Brungart v.
BellSouth Telecomm., Inc., 231 F.3d 791, 798 (11th Cir. 2000).
1. Statutorily Protected Conduct
Plaintiff gets sidetracked arguing that defendant violated specific sections of the
statutes and regulations of the FMLA, which would be appropriate in an FMLA interference
claim. (See doc. 22 at 20-24 (arguing how defendant violated FMLA notice requirements in
29 C.F.R. §§ 825.300(b)(1), (b)(2), (c)(1), 825.305(a), 825.303(b)).) The question in a
retaliation claim, however, is whether the plaintiff engaged in statutorily protected conduct,
not whether the defendant complied with statutory directives under the FMLA (other than
the directive not to retaliate against employees asserting FMLA rights). To engage in such
conduct, plaintiff must first be qualified for FMLA leave. Pereda v. Brookdale Senior Living
Cmty., Inc., 666 F.3d 1269, 1272 (11th Cir. 2012). Defendant does not argue that plaintiff’s
injuries from her car wreck did not actually amount to a “serious health condition” that would
have qualified her leave for FMLA status.
Rather, defendant argues that because “plaintiff did not take or request FMLA leave
for [her June 4 to June 8] absences . . . the leave plaintiff took during that time was not
covered by the FMLA.” (Doc. 17 at 15.) However, defendant acknowledges that notice, thus
triggering protection from retaliation, of “the need for . . . FMLA leave does not [require the
employee] to expressly assert rights under the Act or even mention the FMLA . . . though the
employee would need to state a qualifying reason for the needed leave.” (Doc. 17 at 16)

9

(quoting Andrews v. CSX Transp., Inc., 737 F. Supp. 2d 1342, 1350-51 (M.D. Fla. 2010), in
turn citing 29 C.F.R. § 825.208(a)(2)). Defendant claims that plaintiff’s call-ins were not
specific enough to “inform Northway that she was suffering from a serious health condition
covered by the FMLA.” (Doc. 17 at 17) (emphasis added). Apparently, defendant wanted
plaintiff to explain enough so that Phillips could complete the checklist of elements of a
“serious health condition” in 29 C.F.R. § 825.115(a)(1) or (a)(2). But that is not required by
Andrews and Lowery v. Strength, 356 F. App’x 332, 333 (11th Cir. 2009), the case on which
Andrews and defendant rely. Lowery requires that “[w]hen an employee’s need for FMLA
leave is unforeseeable, the employee need only provide [her] employer with notice sufficient
to make the employer aware that [her] absence is due to a potentially FMLA-qualifying
reason.” Lowery, 356 F. App’x at 333 (quoting Cruz v. Publix Super Markets, Inc., 428 F.3d
1379, 1382 (11th Cir. 2005)) (quotation marks omitted) (emphasis in original). In Lowery,
informing the employer of leave needed for “medical reasons,” including that the employee
had been treated for depression and anxiety, was not enough. Lowery, 356 F. App’x at 334.
In Andrews, “phoning in ‘sick’ or providing doctor’s notes for unspecified ailments” was not
either. Andrews, 737 F. Supp. 2d at 1352. In this case, plaintiff claims that she “told
[Phillips, via voicemail] about the [car] accident and that I wouldn’t be coming in” pursuant
to doctor’s orders, until “the pain and the swelling subsided some.” (Campbell Depo. at
122:17-22; see also id. at 121:17-18.) If an employee is out for “medical reasons” or because
they are “sick,” the employer does not have the first clue to separate that leave from the

10

universe of non-qualifying leave. Those reasons are distinguishable from plaintiff’s, which
was pain and treatment stemming from a specific, recent trauma: a car wreck. Therefore, for
purposing of deciding the instant motion, the court will assume that plaintiff’s calls put
defendant on notice that her absences were potentially protected by the FMLA.
2. Causal Connection
Plaintiff was fired less than one week after returning from her FMLA-qualifying
leave. Ordinarily, this temporal proximity is enough to create a presumption of a causal
connection. Hurlbert v. St. Mary’s Health Care System, Inc., 439 F.3d 1286, 1298 (11th Cir.
2006). An employer can negate this presumption by presenting “unrebutted evidence that the
decision maker did not have knowledge that the employee engaged in protected conduct.”
Id. (quoting Brungart v. BellSouth Telecomm., Inc., 231 F.3d 791, 799 (11th Cir. 2000)).
Seeking to do so, defendant cites Skelton’s testimony that he did not recall whether he was
aware that Phillips mentioned the FMLA with regard to plaintiff’s leave, and did not recall
“being told the severity of an accident or the need for anything.” (Doc. 17 at 19-20, quoting
Skelton Depo. at 30:7-31:4.) “I don’t recall” is not “affirmative evidence . . . that he was
unaware” of plaintiff’s protected activity, certainly not on summary judgment. (See doc. 17
at 20.) It is almost impossible to rebut “I don’t recall.” Phillips’s statement to the effect that
she told Skelton “about the fact that [she] thought that Mary might need FMLA leave,” while
ambiguous, is enough to ensure that defendant does not have the unrebutted evidence it

11

needs.4 Defendant argues that Skelton did not know “details” about plaintiff’s car wreck,
(doc. 17 at 13), i.e., the “severity” of the accident, but Skelton did not need to know any more
than the fact of and reason for her absence to put him on notice of plaintiff’s statutorily
protected activity. (See Skelton Depo. at 25:1-10.)
3. Pretext
Plaintiff has presented a prima facie case for FMLA retaliation. However, that is only
the first step. “Unlike an interference claim, an employee bringing a retaliation claim faces
the increased burden of showing that his employer’s actions were motivated by an
impermissible retaliatory or discriminatory animus.” Martin v. Brevard Cnty. Pub. Sch., 543
F.3d 1261, 1267-68 (11th Cir. 2008). Plaintiff has not met that burden for the same reasons
that her claim for racial discrimination fails: she has not shown pretext.
B. Racial Discrimination (Title VII and 42 U.S.C. § 1981)
“To establish a prima facie case of discriminatory discharge, the plaintiff must show
that she (1) was a member of a protected class, (2) was qualified for the job, (3) suffered an
adverse employment action, and (4) was replaced by someone outside the protected class.”
Cuddeback v. Florida Bd. of Educ., 381 F.3d 1230, 1235 (11th Cir. 2004) (citing Reeves v.

4

Of course, if this case went to trial, a jury might very well find that Skelton was
not on notice of any protected activity by the plaintiff.

12

Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000)).5 Missing Cuddeback,
defendant does not argue that plaintiff cannot satisfy its prima facie case formula.
“Once a plaintiff has established a prima facie case of discrimination, the burden
shifts to the employer to offer a nondiscriminatory legitimate reason for the adverse
employment action.” Cuddeback, 381 F.3d at 1236. Defendant argues that it has a legitimate
non-discriminatory reason for firing plaintiff: she left work three hours before her shift ended
without timely notice and without permission. That reason is sufficient to carry defendant’s
“exceedingly light” burden. Turnes v. AmSouth Bank, NA, 36 F.3d 1057, 1061 (11th Cir.
1994). “The burden then shifts back to the plaintiff to show that the employer’s stated reason
was a pretext for discrimination.” Cuddeback, 381 F.3d at 1236.
Plaintiff argues that pretext is shown because the decisionmaker had no factual basis
on which to assert that plaintiff “significant[ly] failed to perform duties as assigned” and
because plaintiff reasonably could have believed that she had permission to leave.(Doc. 22
at 29-33.) But under Title VII and § 1981 (or the showing of pretext in FMLA retaliation),
it does not matter much what actually happened. See Alvarez v. Royal Atlantic Developers,

5

Defendant acknowledges Cuddeback in its reply brief, but insists that “the 11th
Circuit has repeatedly required plaintiffs to show a similarly situated employee was
treated more favorably” to establish a prima facie case. (Doc. 25 at 7.) It is an either/or
situation. Hudson v. Middle Flint Behavioral Healthcare, 522 F. App’x 594, 596 (11th
Cir. 2013) (“Rather than demonstrate that she was replaced by someone outside of her
protected class, a plaintiff may instead demonstrate that her employer treated similarly
situated employees outside of her class more favorably.”).

13

Inc., 610 F.3d 1253, 1266-67 (11th Cir. 2010) (“The inquiry into pretext centers on the
employer’s belief, not the employee’s beliefs and, to be blunt about it, not on reality as it
exists outside of the decision maker’s head.”). What matters is what the employer actually
relied upon. IMPACT v. Firestone, 893 F.2d 1189, 1194 (11th Cir. 1990); Crawford v.
Carroll, 529 F.3d 961, 977 (11th Cir. 2008). As defendant put it in its reply brief, “[a]n
employer is entitled to rely on its good-faith belief that the employee misbehaved in the
workplace.” (Doc. 25 at 4) (citing E.E.O.C. v. Total Sys. Servs., Inc., 221 F.3d 1171, 1176
(11th Cir. 2000)). Skelton told plaintiff why she was being fired at her termination meeting:
“[Y]ou left the building yesterday without permission and I consider that neglect of duty.”
(Campbell Depo. at 165:15-17.) Skelton testified that the “primary reason” that he fired her
for leaving early was that “she did not give proper notice.” (Skelton Depo. at 58:23-25; see
also doc. 17 at 27.) Plaintiff’s burden is to come forward with evidence “sufficient to permit
a reasonable factfinder to conclude” that that reason—leaving the building early without
permission and on short notice—was not what actually motivated defendant. Combs v.
Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997); see also Burke-Fowler v. Orange
Cnty., 447 F.3d 1319, 1323 (11th Cir. 2006) (describing plaintiff’s burden as that of
“prov[ing]” pretext).
While plaintiff may have believed that she had permission, and that belief may have
even been reasonable, that fact does not result in a question of fact as to whether defendant’s
articulated reason for plaintiff’s discharge was pretext for unlawful discrimination or

14

retaliation. There is no evidence before the court that the decisionmaker knew she had
permission to leave.
As further argument of pretext, plaintiff points to persons she claims are “nearly
identical” comparators who were treated more leniently than the plaintiff for the “same
misconduct,” (doc. 22 at 34). (See id. at 33-40.) A plaintiff can show pretext by proving that
similarly situated employees who are not in plaintiff’s protected group (here, nonwhites or
non-FMLA takers) and who engaged in conduct “nearly identical” to hers were treated more
favorably.6 See Rioux v. City of Atlanta, 520 F.3d 1269, 1279-80 (11th Cir. 2008).
Deciding what is nearly identical—what is close enough—without simply requiring
the conduct to be identical is, to say the least, “a focused inquiry.” See Silvera v. Orange
Cnty. Sch. Bd., 244 F.3d 1253, 1258 (11th Cir. 2001). Cases finding that non-identical
conduct was also not “nearly identical” are legion. Harder to find are the acceptable close
calls. Cf. McCann v. Tillman, 526 F.3d 1370, 1374 n.4 (11th Cir. 2008) (noting, without

6

That is enough. The court emphasizes this to dispel any notion that plaintiff, as a
white person, could not be discriminated against by another white person unless he hated
his own race. (See, e.g., Campbell Depo. at 97:4-5 (“Q (Mr. Scroggins): Do you think he
[Mr. Skelton] hates white people?”), 243:1-4 (“Mr. Scroggins: David—make sure this is
on the record . . . My question is, basically, very simply does she believe that Freddy
Skelton harbors racial animus against his own race. That’s a fair question . . . .”), 242:7-9
(“Q (Mr. Scroggins): Ms. Campbell, do you think Freddy has anything against white
people?”), 238:13-16 (Q: I’ve got to ask you what in the world makes you think that a
white male would discriminate against you on the basis of your race?”), 240:20-241:1 (“Q
(Mr. Scroggins): What in the world do you think would be the motivation for Freddy to
discriminate in that way, if any, or are you just out to retaliate against Freddy for some
reason?”).)

15

example, that “[a] range of comparators may satisfy this standard”). Three cases are
instructive.
In Lobeck v. City of Riveria Beach, 976 F. Supp. 1460, 1462 (S.D. Fla. 1997), a
plaintiff had “allegedly directed subordinate [police] officers to cover-up” the identity of an
intoxicated arrestee who had been released and severely injured in a hit-and-run, then “lied
to other police officers about the affair.” Plaintiff’s comparators were black officers who had
escaped punishment for acts such as threatening bodily harm to a sergeant, beating people
in custody, sexually and racially harassing other employees, and striking a supervisor. Id. at
1466. Operating under the conclusion that the conduct “need not be ‘nearly identical’ in
form, but only ‘nearly identical’ in severity,” the court could not say that these “very serioussounding incidents” were “as a matter of law . . . less serious than a cover-up.” Id. at 146667; but see Bethel v. Porterfield, 293 F. Supp. 2d 1307, 1321 (S.D. Ga. 2003) (“I disagree
with Plaintiff’s implication [from Lobeck] that the misconduct need only be nearly identical
in severity, but not nearly so similar in form.”), aff’d, 116 F. App’x 246 (11th Cir. 2004)
(unpublished table decision).
In Foster v. Thomas County, 927 F. Supp. 2d 1350, 1353 (M.D. Ga. 2013), a hungry
“E-911” call operator was seeking a stand-in so she could get dinner. She reached for her
movie-watching co-worker’s computer mouse, but met with his (“fist-swinging,” she said,
“startled,” he said) arm. Id. She then grabbed at his headset and scratched his face in the
process. Id. at 1353-54. “The Incident,” as it would come to be called, culminated when he

16

either: asked her to not batter him again and they passionately argued (he said), or: came
towards her with his fists clenched (she said). Id. at 1354. She was fired, he was not, and she
sued. Id. The court found that the employer’s attempt to distinguish the plaintiff’s scratch
from the co-worker’s raised arm based on his arm-raising being unintentional was
futile—“[t]he question of intent [was] exactly why this case was filed.”7 Id. at 1358-59. Their
conduct was nearly identical.
In McCaskill v. ConAgra Foods, Inc., 296 F. Supp. 2d 1311, 1315-16 (M.D. Ala.
2003), a plaintiff’s romantic (if last-minute) Valentine’s day gesture involving a brownbagged bottle of gin and a store-bought card was foiled when a supervisor caught him
attempting to bring the alcohol onto work premises. Plaintiff was fired. Id. at 1316. His
comparator sold champagne gift baskets out of her car in the parking lot, advertising the deal
with fliers, and was not punished. Id. at 1318. The court found the incidents nearly identical
because both violations were intentional and occurred in plain sight, and the defendant could
not offer other grounds to distinguish them. Id. at 1318-19.
With these success stories (and their exceptionality) in mind, the court turns to its
focused inquiry. In it, defendant’s characterization—“significant failure to perform duties

7

This “nearly identical” comparison occurred in the prima facie case stage. It is
unclear whether that court would have allowed the decisionmaker to simply rely on the
supervisor’s version of the facts, since the supervisor’s potential bias was shown in the
pretext stage, raising a “cat’s paw” issue. See id. at 1359 (“The subjective intent of each
employee during the Incident cannot be determined based on record review alone.”); id. at
1361.

17

as assigned”—is not the focal point, and that is why it doesn’t much matter. See Floyd v. Fed.
Exp. Corp., 423 F. App’x 924, 930 (11th Cir. 2011) (“[T]he mere fact that Bowers and Floyd
were ultimately cited for violating the same provision of FedEx’s People Manual does not
make their conduct ‘nearly identical.’”). The court is looking to see whether the conduct
itself is nearly identical in quantity and quality to the comparators’. Plaintiff presents six
comparators: Geralds, Simmons, Carroll, Peake, Washington, and Brown. (Doc. 22 at 34-39.)
The first four can be analyzed together.
Geralds,8 Simmons, Carroll, and Peake are four black certified nursing assistants who
took a long lunch. (Doc. 25 at 11.) They did not clock out like they were supposed to do
before going to lunch, and did not have permission to leave for so long. (Self Depo. at 44:918; doc. 23-6, 23-7, 23-8, 23-9; but see Skelton Depo. at 81:9-11 (“[Y]ou don’t clock out for
lunch or any other break on your eight-hour shift[.]”).) Their failure to clock out suggested
that they planned to avoid detection. (Doc 22 at 35-36; Self Depo. at 44:15-18; Skelton Depo.
at 97:4-13.) Defendant acknowledged this dishonesty. (Skelton Depo. at 97:4-13.) Although
the internal discipline forms say merely “over 1 hr.,” the lunch lasted almost two hours. (Self
Depo. at 50:16-19; doc. 23-6, doc. 23-7, doc. 23-8, doc. 23-9.) Upon returning to complete
their shift, they finished their job duties for the day. (Self Depo. at 50:22-51:8.) Skelton
suspended them for three days without pay and with a written warning. (Id. at 43:19-23.)

8

In her deposition, Ms. Self and counsel apparently meant Avery Geralds when
they referred to a “Mr. Avery.” (Self Depo. at 36.)

18

Like plaintiff, they were charged under the category “significant failure to perform duties as
assigned.” (Skelton Depo. at 97:4-13.)
Obviously, the comparators’ conduct is not identical to plaintiff’s. Defendant argues
that their conduct is also not “nearly identical” because the comparators, while failing to
return from lunch on time, did eventually return to finish their shifts. (Doc. 25 at 12.)
Plaintiff, on the other hand, left “on intentionally short notice and with zero intention to
finish her shift.” (Id.)
The comparators’ conduct did not inflict that dose of harm. In leaving three hours and
twenty minutes before her shift ended, plaintiff short-staffed the facility for the rest of the
afternoon. Skelton testified that “[i]f she would have asked Ms. Cannon in a timely fashion,
gave the facility an opportunity to cover her shift, there would not be any issue with her
going to the dentist.” (Skelton Depo. at 98:20-23.) Defendant had an ongoing problem:
nurses attempting to pass off their duties onto someone else for a while “was an everyday
thing.” (Cannon Depo. at 35:34:24-35:7.) It put stress on the employees that were already
doing their own jobs.9 (Id. at 82:2-83:15.) Skelton was aware of this issue. (Id. at 83:19-23.)
Plaintiff also puts forth Frankie Washington as a comparator, but as defendant argues,
she is distinguishable for one of the same reasons that the lunchers are: she came back. (Doc.
25 at 12.) Washington apparently improperly combined her meal break and her other daily

9

Therefore, it does not matter that plaintiff had recruited a colleague to cover her

duties.

19

break on some Sundays to take one long meal break to leave the facility to attend church.
Like the four other comparators discussed above, Washington was away from the facility
longer than she should have been because she did not have permission to combine breaks and
stay away from the facility as long as she did. This conduct is different in character from the
actions of plaintiff, who left the facility on short notice and did not return to complete her
shift. Furthermore, defendant was apparently concerned with the implications of punishing
an employee for going to church on Sunday. Self uses the phrase “reasonable
accommodations,” and “accommodated” twice, when referring to defendant’s eventual
treatment of Washington’s “religious preferences.” (Self Depo. at 54:5-6, 57:6-8); see also
29 C.F.R. § 1605.2(b)(1) (“Section 701(j) [of the Civil Rights Act] makes it an unlawful
employment practice under section 703(a)(1) for an employer to fail to reasonably
accommodate the religious practices of an employee . . . .”).
Plaintiff’s final comparator is Maurice Brown. Brown received a written warning on
November 19, 2007 for “NC/NS,” no call/no show. (Doc. 28-1 at 2; Skelton Depo. at 83.)
He received a second written warning on April 23, 2008 that states: “did not fill out paper
for swap shift, other emp[loyee] did not show, so NC/NS.” (Doc. 28-1 at 3; Skelton Depo.
at 83.) For his second no call/no show, he was placed on 90-day probation. These are his first
two conference reports. The same illegible signature appears on both, and since Skelton
began as defendant’s administrator in July 2007, (Skelton Depo. at 6-7), and it is ambiguous
from his deposition testimony whether he was aware of the incidents, (see id. at 83:2-17), the

20

court will assume that it is at least a disputed issue of fact.10
Missing a work day unannounced is probably nearly identical to leaving in the middle
of a shift without permission when compared generally. They put defendant in the same
position: understaffed. But this is a “focused inquiry,” and in developing the specifics of this
case, distinguishing factors make comparison inappropriate. Skelton could reasonably have
decided not to terminate Brown for the November 19, 2007 no call/no show because it was
his first offense. (See id. at 72:18-21.) Skelton could have decided not to terminate Brown
for the April 23, 2008 no call/no show because he could reasonably have determined that
Brown’s only fault was failing to fill out the correct paperwork for swapping shifts,11 and that
Brown should not be faulted for the swapped employee’s failure to show up. Additionally,
Brown only had one previous conference report. When deciding what to do with Campbell,
Skelton was looking at three conference reports in the last year, and statements from both of
plaintiff’s supervisors saying that they had not given her permission to leave12 but that she

10

The signature appears very similar to the one on Brown’s conference report dated
February 6, 2012, which is presumably Skelton’s signature since it is the report
terminating Brown’s employment. (See doc. 28-1 at 16.) Skelton confirmed that the
illegible signature followed by “NHA” (presumably, Northway Health Administrator) on
Brown’s February 2nd report is Skelton’s. (Skelton Depo. at 86; see doc. 28-1 at 11.)
11

One of Campbell’s conference reports within the year of her termination was also
for swapping without authorization, for which she was also given a written warning but
not placed on probation. (Skelton Depo. at 71:13-23; doc. 18-1 at 108.)
12

The court discussed above the evidence on this issue, including plaintiff’s
testimony that she believed she had permission to leave.

21

left anyway. See Silvera v. Orange Cnty. School Bd., 244 F.3d 1253, 1259 (11th Cir. 2001)
(explaining that disciplinary history distinguishes comparators).
Years later, Brown engaged in a series of misconduct beginning February 2, 2012 and
ending February 6, 2012, when defendant fired him. (Doc. 23-10, doc. 23-11, doc. 23-12.)
On February 2, 2012 he was placed on 90-day probation for “Type A #11. Refusing to get
a res[ident] up after being asked by supervisor.” (Doc. 23-10.) Skelton signed the disciplinary
report. (Skelton Depo. at 86:2-5.) That conduct is not nearly identical to plaintiff’s. Brown
was again written up on February 4, 2012 for offenses including “left facility - twice,” but
Mary Campbell is the only supervisory signatory, (doc. 23-11), and although Skelton admits
he knew of the February 4, 2012 incident, he testified that the February 4th report was
“issued with the date of the 6th.”13 (Skelton Depo. at 127:1-3.) Even if “left facility - twice”
was enough information to determine that his conduct was “nearly identical” to what plaintiff
did, which it is not, Skelton would have to have known about it before February 6th and
decided not to fire him. Brown was terminated on February 6, 2012 for “significant failure
to perform duties as assigned,” (doc. 23-12), the same category under which plaintiff was
charged in the course of her termination.

13

Although Skelton’s wording is confusing, it seems that he meant that the
conference report for Brown’s February 4th misconduct either came into existence on the
6th, or was given to Skelton during Brown’s February 6th termination meeting. Skelton
says “[Campbell] wrote [the conference reports] and informed us about them, and we had
to follow up.” (Skelton Depo. at 127:18-20.)

22

In Foster, the plaintiff’s and her comparator’s conduct was not identical blow-forblow, but the conduct occurred in the same altercation, and the court held that the defendant
could not have (in unbiased honesty) determined that plaintiff’s was intentional while her
comparator’s was not. In McCaskill, the plaintiff’s and comparator’s conduct was probably
as close as possible to identity: the plaintiff was almost through the gate, intending to take
alcohol on campus. The only difference was that his comparator actually made it through.
While this court would hesitate to say, as a matter of law, that taking a nearly
two-hour lunch without clocking out is “less serious” than securing cover, clocking out, and
leaving three hours early, time has not been kind to Lobeck’s explanation of the standard. See
Lobeck v. City of Riviera Beach, 976 F. Supp. 1460, 1466-67 (S.D. Fla. 1997). The court in
Lobeck relied on Jones v. Gerwens, 874 F.2d 1534 (11th Cir. 1989), to conclude that
“comparable seriousness” places the inquiry on the severity of the conduct, not on other
characteristics. Lobeck, 976 F. Supp. at 1466. There might have been some ambiguity about
the standard at the time of Lobeck, but Eleventh Circuit cases since then have clarified it.
Plaintiff’s burden in proving pretext is to show similarity “in all relevant respects,” Wilson
v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004), to show “that the quantity and
quality of the comparator’s misconduct [was] nearly identical.” Burke-Fowler v. Orange
Cnty., 447 F.3d 1319, 1323 (11th Cir. 2006) (quoting Maniccia v. Brown, 171 F.3d 1364,
1368 (11th Cir. 1999)); see also Rioux v. City of Atlanta, 520 F.3d 1269, 1279-80 (11th Cir.

23

2008) (standard same in pretext stage); McCann v. Tillman, 526 F.3d 1370, 1374 n.4 (11th
Cir. 2008), cert. denied sub nom. McCann v. Cochran, 555 U.S. 944 (2008).
The standard expressed in Lobeck would require the court to act as a chemist of
morality or HR policy, taking two factually distinct events and distilling each’s inherent
“severity” for comparison. That is not the court’s role. See Wilson, 376 F.3d at 1092.14 It is
much simpler: compare apples to apples. Maniccia, 171 F.3d at 1368-69. Plaintiff has not
presented two apples for comparison in this case.
CONCLUSION
Plaintiff has failed to show that defendant’s proffered legitimate reason for
terminating her is pretext. Because plaintiff has not carried her burden, defendant’s Motion
for Summary Judgment, (doc. 16), is due to be granted on both of plaintiff’s claims. An order
granting the Motion will be entered contemporaneously herewith.
DONE this 19th day of August, 2014.

SHARON LOVELACE BLACKBURN
UNITED STATES DISTRICT JUDGE

14

In a truly remarkable case, perhaps the court could relax the standard to prevent
something outrageous from escaping the law. See McCann, 526 F.3d at 1374 n.4
(“[T]here is the possibility that even in the absence of what may fairly be described as a
nearly identical comparator, some conduct may be so unfairly discriminatory that no
reasonable person would find it non-actionable. That is not the case here . . . .”).

24