Lanier v. Board of Trustees of The University of Alabama, The

Filing 22

MEMORANDUM OPINION. Signed by Judge William M Acker, Jr on 2/20/2014. (AVC)

FILED
2014 Feb-20 AM 10:37
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
SHELIA D. LANIER,

}
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Plaintiff,
THE BOARD OF TRUSTEES OF THE
UNIVERSITY OF ALABAMA,
Defendant.

Case No. 2:12-CV-03820-WMA

MEMORANDUM OPINION
Plaintiff, Shelia D. Lanier (“Lanier”), instituted the present
action alleging race discrimination and retaliation in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. (“Title VII”) and 42 U.S.C. § 1981 (“§ 1981”), and alleging
race-based harassment in violation of § 1981. Defendant, the Board
of

Trustees

of

the

University

of

Alabama,

moves

for

summary

judgment. For the reasons detailed below, summary judgment will be
granted.
BACKGROUND
Although

the

parties

Lanier’s employment,

they

dispute
do

not

certain

facts

dispute the

relating

facts

to

that are

material to deciding the viability of Lanier’s complaint. Pursuant
to Rule 56, Fed. R. Civ. P., the court views all admissible
evidence in the light most favorable to Lanier and draws all
reasonable inferences in her favor.

1

Defendant first hired Lanier in May 1990.

Lanier is black.

Theresa T. Phillips (“Phillips”) became Lanier’s supervisor in
November 2009.

Phillips is white.

When Phillips became Lanier’s

supervisor, Lanier was working in defendant’s Bad Debt department.
Phillips assigned Lanier to cross-train in the Customer Service
department beginning in May 2010 and eventually transferred Lanier
to Customer Service in the summer of 2011.

Phillips’s manager,

Stacey Hansen (“Hansen”), white, also took part in the decision to
transfer Lanier to Customer Service.

Lanier’s positions in both

Bad Debt and Customer Service have the same pay grade and benefits.
A.

Transfer to Customer Service and Later Attempted Transfers
When Phillips transferred Lanier to Customer Service, Lanier

verbally asked Phillips to move her back to Bad Debt and claimed
that Phillips “was setting [her] up to fail because of the fact
that [Phillips] moved Joyce Herndon so that she would not get bad
evaluations.” Def. Mot. Summ. J. Ex. A (“Pl. Depo.”) at 79-80.
Herndon is white.

Lanier alleges that Phillips re-transferred

Herndon from Customer Service to Bad Debt because Herndon did not
want Customer Service duties that required her to answer the
telephone and be subject to tougher evaluations. However, Lanier’s
testimony purporting to state Herndon’s reasons for requesting the
transfer and Phillip’s reasons for granting it is inadmissible
hearsay, as will be discussed in detail below.
After being transferred to Customer Service, Lanier repeatedly
2

asked Phillips to transfer her back to Bad Debt or to any open
position without phone duties. Phillips claims that one reason she
did not transfer Lanier back into Bad Debt was that the two
employees then working in Bad Debt were “outperforming” what Lanier
had accomplished in that position. Def. Mot. Summ. J. Ex. B at 5152.

Phillips also states, without contradiction, that defendant

has a policy prohibiting the transfer of employees “having quality
or productivity issues.” Id. at 51.
Failing to get a transfer, Lanier submitted a grievance letter
on November 8, 2011, to Audra McClinton (“McClinton”), a white
Human Resources Consultant employed by defendant.

The grievance

letter itself would, of course, be the best evidence of what it
contained.

The only evidence offered as to what this letter

contained comes from Lanier’s deposition. See infra Discussion
Section A.

Per Lanier’s testimony, her letter complained that she

“was placed in a position and [she] was not being allowed to move.”
Pl. Depo. 15.

Lanier also says that the grievance disputed her

negative evaluations and the need for cross-training.

Lanier’s

oral recollection of what she wrote in this grievance letter does
not contain the slightest reference to race, either her race or
Herndon’s race.
Lanier submitted a second grievance letter on November 21,
2011, to the Human Resources department.

She relies upon this

November 21 grievance, as well as the November 8 grievance, to

3

oppose defendant’s motion for summary judgment. Def. Mot. Summ. J.
Ex. 5.

The grievance describes several disputes between Phillips

and Lanier and alleges that Phillips treated Lanier unfairly and in
retaliation for her earlier grievance.
that

Phillips

was

not

aware

that

Lanier admits, however,

Lanier

had

submitted

any

grievances until after Lanier was discharged. Again, the grievance
of November 21, although passing muster as the best and only
evidence

of

what

it

contains,

makes

no

complaint

of

race

discrimination.
B.

Disciplinary Actions
Lanier

had

five

disciplinary

actions

for

performance

shortcomings in the year preceding her discharge that occurred on
April 20, 2012.
21,

2011,

for

She received the first written warning on April
below-standard

productivity;1

a

second

written

warning on June 1, 2011, for below-standard quality reviews; a
third written warning on December 15, 2011, for below-standard
quality reviews; a fourth written warning on February 10, 2012, for
below-standard quality reviews; and a fifth written evaluation on
the date of her discharge, April 20, 2012, for below-standard
quality reviews and the inappropriate transfer of a call on April
4,

2012,

which

prompted

a

patient

1

complaint and

resulted

in

The April 21, 2011, written warning was related to customer calls but
occurred before Lanier transferred to Customer Service in summer 2011. Based
on information in Lanier’s deposition, she probably received this warning
while cross-training in Customer Service, which she began doing in May 2010.

4

Lanier’s discharge.
Lanier contests all of these disciplinary actions. She claims
that

all

of

these

actions

were

unfair

because

she

received

insufficient training; because she was not allowed as much time to
research and follow up on accounts as other employees in Customer
Service; because she had phone and computer problems; because she
was assigned more duties than other employees in Customer Service;
because

Phillips

had

a

bias

against

her

when

applying

the

evaluation criteria to Lanier’s calls; because she transferred the
call on April 4, 2012, according to common employee practice; and
because another employee’s actions prompted the patient complaint
resulting from the April 4, 2012, transferred call.
In connection with the written warnings, Phillips placed
Lanier on a performance improvements plan (“PIP”) on December 15,
2011, and a second PIP on February 10, 2012.

Lanier claims that

she did not receive the additional training that Phillips was
supposed to provide as part of the December PIP.
C.

Discharge
Defendant

employees

discharged

participated in

Lanier
the

on

April

termination

20,

2012.

decision:

Three

Phillips;

McClinton from Human Resources; and Hansen, Phillips’s manager. At
meetings on the subject of Lanier’s possible discharge, these three
decision-makers discussed the possibility of transferring Lanier to
a different department, but the manager of that department declined
5

to accept Lanier.

The decision-makers did not discuss Lanier’s

grievance letters at the meetings because the parties, including
Lanier, agree that Phillips was unaware of Lanier’s grievance
letters until after Lanier’s discharge. McClinton was aware of the
grievance letters given that Lanier submitted her November 8 letter
to McClinton.

The evidence also suggests that Hansen was aware of

Lanier’s November 8 letter.2
Phillips, McClinton, and Hansen informed Lanier of their
decision to discharge her on April 20, 2012, effective immediately.
The discharge letter notes defendant’s policy that employees may be
discharged if they receive three written warnings in an 18-month
period.

The discharge letter attributes Lanier’s discharge to her

receiving five total written warnings (four previous warnings and
one warning on the same date) and her consistent failure to meet
standards for handling customer calls.

Lanier was replaced with a

black employee.
Lanier presented charges to the Equal Employment Opportunity
Commission (“EEOC”) on May 3, 2012, alleging race discrimination
and retaliation based on her performance evaluations and her
discharge. Doc. 1 at 15.

The EEOC charges were submitted within

180 days of Lanier’s grievance letters and her discharge. The EEOC

2

In her deposition, Lanier asserts that Hansen mentioned in a staff
meeting on November 15, 2011, that someone had filed a grievance. Lanier’s
testimony is circumstantial evidence that Hansen knew about Lanier’s November
8 letter and would be admissible as an opposing party’s statement. See Fed. R.
Evid. 801(d)(2)(D).

6

issued its right to sue letter on August 7, 2012, and Lanier filed
her complaint on November 6, 2012. Doc. 1 at 16.
DISCUSSION
Summary

judgment

has

the

same

standard

in

employment

discrimination cases as in other cases; “[n]o thumb is to be placed
on either side of the scale.” Chapman v. AI Transport, 229 F.3d
1012, 1026 (11th Cir. 2000) (en banc).

To grant summary judgment,

a court must determine that no genuine dispute of material fact
exists and that the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56. For the purposes of summary judgment, the
court views all admissible evidence in the light most favorable to
the nonmoving party and draws all reasonable inferences in that
party’s favor. Scott v. Harris, 550 U.S. 372, 378 (2007) (quoting
United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).
Lanier

alleges

that

she

suffered

race

discrimination,

retaliation, and race-based harassment in violation of § 1981, but
she does not invoke 42 U.S.C. § 1983.

Plaintiff conceded at the

hearing held on February 3, 2014, on defendant’s Rule 56 motion
that this deficiency entitles defendant to summary judgment on the
counts alleging violations of § 1981. See Butts v. Cnty. of
Volusia, 222 F.3d 891, 894–95 (11th Cir. 2000).
Lanier’s Title VII claims require a more in-depth examination.
They ultimately fail to satisfy the summary judgment standard.
Title VII claims based on circumstantial evidence, as in this case,
7

are analyzed using the three-step framework from McDonnell Douglas
Corp v. Green, 411 U.S. 792 (1973). Kidd v. Mando Am. Corp., 731
F.3d 1196, 1202 (11th Cir. 2013).

Lanier must first make out a

prima face case, the elements of which vary depending on the
particular

Title

VII

violation

presumption of discrimination. Id.

alleged,

and

thereby

raise

a

Defendant must then provide a

legitimate, non-discriminatory reason for the adverse employment
action, which, if successfully shown, rebuts the presumption of
discrimination. Id.

Lastly, Lanier must show that defendant’s

facially adequate reason is a pretext and was not the real reason
for the adverse action. Id.
The below sections apply this framework to Lanier’s Title VII
claims

of

retaliation

and

race

discrimination.

Section

(A)

evaluates the admissibility of Lanier’s evidence on two key issues.
Section (B) examines Lanier’s prima facie case for (1) retaliation
and (2) race discrimination.

Because the court finds that Lanier

fails to make a prima facie case for any of her claims, it need not
discuss

defendant’s

evidence

of

legitimate

non-discriminatory

reasons for the adverse actions or Lanier’s evidence of pretext.
A.

Admissibility of Evidence
The admissibility of evidence on two particular issues has a

devastatingly dispositive impact on the viability of Lanier’s Title
VII claims.

“[E]vidence inadmissible at trial cannot be used to

avoid summary judgment” and, “[e]ven on summary judgment, a court
8

is not obligated to take as true testimony that is not based upon
personal knowledge.” Corwin v. Walt Disney Co., 475 F.3d 1239, 1249
(11th Cir. 2007) (citations and internal quotation marks omitted).
Accordingly, this section addresses that evidence separate from the
evaluation of whether Lanier has a prima face case.
The evidence respecting Lanier’s grievance of November 8,
2011, directly affects her retaliation claim.

As discussed below,

for a prima facie case of Title VII retaliation, the employee must
have engaged in statutorily protected activity. 42 U.S.C. § 2000e3(a)

(1982)

(protecting

employees

from

retaliation

protested discrimination made unlawful by the statute).
present

case,

Lanier

must

have

specifically

discrimination, not unfair treatment generally.

if

they

In the

protested

race

Lanier contends

that one way she complained of race discrimination can be discerned
from her November 8 grievance.

Her oral testimony of what was

contained in that grievance clearly violates the best evidence
rule, and is inadmissible hearsay.

There is no showing of why the

grievance letter itself has not been produced for the record.
Furthermore, the mere fact that an employee who complained of
workplace mistreatment is in a class protected by Title VII does
not translate into evidence that the alleged mistreatment was
motivated by the employee’s protected status.
required to read the employee’s mind.

An employer is not

A complaint is just a

complaint until it contains a reference to conduct proscribed by

9

Title VII.
Lanier alleged for the first time in a supplementary brief
filed on February 6, 2014, that her November 8 grievance included
the word "race" and that it "made specific reference to white
comparators.” Doc. 21, ¶ 3.
closed.

On February 6, 2014, the record was

The brief does not have an affidavit appended, and Lanier

has never made such statements under oath in testimony submitted in
opposition to defendant’s motion.

The brief’s belated allegations

about the content of Lanier’s November 8 grievance are inadmissible
and cannot be considered.
The evidence relating to Herndon’s reason for requesting a
transfer and Phillips’s reasons for allowing it affect Lanier’s
Title VII discrimination claim.

Lanier’s sole evidence bearing on

the reason for Herndon’s transfer is Lanier’s oral testimony of
what Herndon told her — classic hearsay.3

Lanier does not say that

she learned this information in a way that might implicate Fed. R.
Evid. 801(d)(2) (opposing party’s statement), 803(1) (present sense
impression),

803(2)

(excited

utterance),

or

807

(residual

exception); or that these reasons appear on personnel records,
implicating Fed. R. Evid. 803(6) (business records exception).

In

the absence of a hearsay exclusion or exception, the court, at the
hearing held on February 3, 2014, expressed serious doubt about the

3

The court accepts Lanier’s testimony as admissible evidence on the
fact of Herndon’s transfer. Lanier had personal knowledge through observation
that Herndon transferred, and this knowledge involves no hearsay.

10

admissibility of Lanier’s testimony. Lanier has offered no equally
serious

argument

to

support

the

admissibility

of

recollection of the reasons for Herndon’s transfer.

Lanier’s
Lanier’s

testimony on the subject is inadmissible and cannot be considered
on summary judgment.
B.

Prima Facie Case
Pursuant to Title VII, Lanier claims that defendant (1)

retaliated against her for her grievances complaining of race
discrimination and (2) discriminated against her based on her race.
Each of these Title VII claims has distinct elements that Lanier
must satisfy to make out a prima face case.
1.

Title VII Retaliation

To make a prima facie case for Title VII retaliation, Lanier
must show (i) that she engaged in statutorily protected activity;
(ii) that she suffered adverse employment action; and (iii) that a
causal relationship exists between the events. Holifield v. Reno,
115 F.3d 1555, 1566 (11th Cir. 1997) (citations omitted). A causal
relationship

can

be

established

through

evidence

that

the

employer’s “desire to retaliate” against the protected expression
was the “but-for cause” of the adverse action. Univ. of Texas
Southwestern Medical Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013).
Lanier

has

established

employment action.

the

second

element

of

adverse

She suffered adverse action when she was
11

discharged. See Nix v. WLCY Radio/Rahall Comms., 738 F.2d 1181,
1185 (11th Cir. 1984).
However, Lanier has failed to establish the first element,
namely, that she engaged in statutorily protected activity.

She

has presented no admissible evidence that she made protected
complaints prior to her discharge. See 42 U.S.C. § 2000e-3(a)
(1982).

Lanier has not submitted any admissible evidence that she

verbally complained of race discrimination. See Rollins v. State of
Fla. Dep't of Law Enforcement, 868 F.2d 397, 400 (11th Cir. 1989)
(protection extends to employees’ “informally voice[d] complaints
to their superiors”).

Lanier states that she complained multiple

times that she was being “set up to fail” to Phillips, e.g., Pl.
Depo. 80, 119, but such a non-specific complaint does not imply
race as the reason.

Lanier once verbally complained that she was

being set up to fail, somehow in favor of Herndon, but the mere
fact that Herndon is white does transmogrify any reference to
Herndon into a complaint of racially disparate treatment.
evidence

that

Lanier

discrimination——with

verbally

explicit

allusion

complained
to

Without

of

race——she

has

race
not

established that her verbal complaints were protected activities.
Turning to Lanier’s grievance letters, which are the primary
evidence for her retaliation claim, Lanier has not presented
admissible

evidence

that

either

complained of race discrimination.

12

of

the

written

grievances

Lanier’s November 21 grievance

neither alleged race discrimination nor alluded to race in any way.
Def. Mot. Summ. J. Ex. 5.

Although Lanier maintains that it

contains “expression[s]” of retaliation and race discrimination,
the plain text does not connect the actions complained of to her
race. See Pl. Depo. 54.

Her recollection of what her November 8

grievance contained not only violates the best evidence rule, but
Lanier has not offered any admissible evidence whatsoever that she
ever complained about race discrimination. See Corwin v. Walt
Disney Co., 475 F.3d 1239, 1249 (11th Cir. 2007); see supra
Discussion Section A.

Thus, Lanier has not established that her

grievances were protected activities.
Even if Lanier’s grievances could be stretched and deemed to
hint at race discrimination so as to qualify them as protected
expressions, Lanier has failed to establish the third element, a
causal

connection

between

her

grievances

and

her

discharge.

Lanier’s discharge took place five months after she submitted her
last grievance on November 21, 2011.

“[I]n the absence of any

other evidence of causation,” even a three-month period between the
protected activity and the adverse action “is insufficient to
create a jury issue on causation.” Drago v. Jenne, 453 F.3d 1301,
1308 (11th Cir. 2006). The five-month period between Lanier’s last
grievance and her discharge creates a stumbling block on the
causation element that is insurmountable without more evidence than
Lanier has offered. See id. Indeed, by admitting that Phillips did
13

not know about her grievances until after the discharge, Lanier has
admitted that the three decision-makers, which included Phillips,
did not even discuss her grievances when deciding to discharge her.
The mere fact that McClinton and Hansen knew about the grievances
does not establish causation for Lanier’s discharge.

Lanier’s

verbal complaints about being set up to fail, if they qualified as
protected activities, occurred before she submitted her written
grievances and would have even more tenuous connections to her
discharge than her written grievances would have.
Given that Lanier has failed to establish that she engaged in
protected activity, defendant is entitled to summary judgment on
Lanier’s retaliation claims. Lanier has also failed to demonstrate
that

her

written

grievances

were

the

but-for

cause

of

her

discharge.
2.

Title VII Race Discrimination

To make a prima facie case for Title VII race discrimination,
Lanier must show (i) that she is a member of a protected class;
(ii) that she suffered adverse employment action; (iii) that the
employer

“treated

similarly

situated

employees

outside

[her]

classification more favorably;” and (iv) that she was qualified for
the position. Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir.
1997).

Defendant does not dispute that Lanier is a member of a

protected class or that she was qualified for the Bad Debt position
and the Customer Service position.
14

The elements at issue are

whether Lanier suffered adverse employment action and whether she
was subjected to disparate treatment.
Adverse Employment Action
Lanier alleges that she suffered race discrimination with
respect to the following adverse actions: (a) defendant’s failure
to promote her, (b) the disciplinary actions, (c) the discharge,
and (d) the failure to transfer her out of Customer Service.4

To

qualify as an adverse action, the employer’s conduct “must impact
the terms, conditions, or privileges of the plaintiff's job in a
real and demonstrable way,” which may, but need not, have “direct
economic consequences.” Davis v. Town of Lake Park, Fla., 245 F.3d
1232,

1239-40

(11th

Cir.

2001).

As

discussed

below,

(a)

defendant’s failure to promote Lanier and (b) the disciplinary
actions do not qualify as adverse actions, but (c) the discharge
and (d) the failure to transfer her do qualify as adverse actions.
(a) Defendant’s failure to promote Lanier does not satisfy the
standard for an adverse action.
4

To make a prima face case for

The complaint separately alleges race discrimination (promotion) and
(termination) in addition to general race discrimination. The bases for each
count must fall within “‘the scope of the EEOC investigation that could
reasonably be expected to grow out of the initial charges of discrimination.’”
Chanda v. Engelhard/ICC, 234 F.3d 1219, 1225 (11th Cir. 2000) (citation
omitted). The EEOC charges note Lanier’s discharge, defendant’s criticism of
her job performance, and that she protested discriminatory practices. If
Lanier protested discrimination in her grievances, actions described in the
grievances can also be grounds for her claims. Her November 21 grievance
complained about defendant’s failure to transfer her, so Lanier can use that
to allege discrimination. However, Lanier cannot use her transfer into
Customer Service because she did not mention it in her November 21 grievance,
did not mention it in her November 8 grievance (at least according to
admissible evidence), and did not file the EEOC charges within 180 days of her
transfer. See 42 U.S.C. § 2000e–5(e)(1).

15

discrimination based on a failure to promote, Lanier must show that
she “applied for and was qualified for a promotion.” Kidd v. Mando
Am. Corp., 731 F.3d 1196, 1204 (11th Cir. 2013) (quoting Brown v.
Ala. Dep't of Transp., 597 F.3d 1160, 1174 (11th Cir. 2010)).
Lanier admits that she did not apply for any promotions, Pl. Depo.
15., so she cannot show adverse action for defendant’s failure to
promote her.
(b) To the extent that Lanier alleges race discrimination
based on her low performance reviews and written warnings, separate
from discharge, these actions do not qualify as adverse.

A low

score on a “performance evaluation, by itself, is not actionable
under Title VII unless [the employee] can establish that the lower
score led to a more tangible form of adverse action.” Brown v.
Snow, 440 F.3d 1259, 1265–66 (11th Cir. 2006); see Davis v. Town of
Lake Park, Fla., 245 F.3d 1232, 1240 (11th Cir. 2001).
Lanier argues

that

her

discharge

was an

adverse

Although

action,

her

performance reviews and written warnings are not.
(c) Lanier’s discharge did, of course, constitute an adverse
action.

Discharging

an

employee

unquestionably

qualifies

as

adverse action. See Burlington Indus., Inc. v. Ellerth, 524 U.S.
742, 761 (1998).
of

Customer

(d) Defendant’s failure to transfer Lanier out

Service

arguably

constituted

an

adverse

action.

Failure to transfer an employee can qualify as an adverse action.
See Webb-Edwards v. Orange Cnty. Sheriff's Office, 525 F.3d 1013,
16

1028–29 (11th Cir. 2008) (adverse action when an employee was not
transferred after applying for an open position for which she was
qualified).

Whether a particular failure to transfer qualifies as

an adverse action depends on the context and whether a reasonable
person in the employee’s situation would consider the action
adverse. Taylor v. Roche, 196 F. App'x 799, 803 (11th Cir. 2006)
(citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761
(1998)).

In Taylor v. Roche, the Eleventh Circuit concluded that

failure to transfer was an adverse action where the employee had
requested the transfer for over a year; the employee had a tense
relationship with a supervisor; and the employee sought to return
to his previously held position for family reasons and out of a
desire to avoid the tense situation with his supervisor. Id.

In

the present case, interpreting the facts favorably to Lanier, she
repeatedly requested a transfer out of Customer Service starting
the summer of 2011; she had a tense relationship with Phillips; and
she sought to transfer either to her previously held Bad Debt
position or to any open position to avoid both the tense situation
with Phillips and the Customer Service phone duties.

In context,

a reasonable person could consider Phillips’ failure to transfer
Lanier as an adverse action.
In sum, the adverse action element of Lanier’s prima facie
case

of

race

discrimination

has

been

satisfied

discharge and defendant’s failure to transfer her.

17

by

Lanier’s

Unfortunately,

these

favorable

possibilities

cannot

overcome

the

undisputed

dispositive facts with respect to the other prima facie elements
that Lanier has not met.
Disparate Treatment
The second element for Lanier’s prima facie case of race
discrimination consists of the necessary showing that defendant
“treated

similarly

situated

employees

outside

[plaintiff’s]

classification more favorably.” See Holifield v. Reno, 115 F.3d
1555, 1564 (11th Cir. 1997). This element is considered separately
in relation to defendant’s two adverse actions.

The court finds

that Lanier fails to establish disparate treatment either for the
discharge or for the failure to transfer her.
Lanier may establish disparate treatment for her discharge by
evidence that she was “either (a) replaced by someone who was not
a member of the plaintiff's protected class or (b) a similarly
situated employee who was not a member of the protected class
engaged in nearly identical conduct and was not discharged.”

Nix

v. WLCY Radio/Rahall Commc'ns, 738 F.2d 1181, 1185 (11th Cir.
1984).

In the present case, the undisputed facts show that Lanier

was replaced with someone of her same race. Def. Mot. Summ. J. Ex.
C at ¶ 3.

Lanier must show, then, that “a similarly situated

employee” outside her protected class “engaged in nearly identical
conduct and was not discharged.” See Nix, 738 F.2d at 1185.

The

comparator employee must have been “involved in or accused of the
18

same or similar conduct and [was] disciplined in different ways.”
Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir.
2006). “‘[T]he quantity and quality of the comparator's misconduct
must be nearly identical to prevent courts from second-guessing
employers'

reasonable

decisions

and

confusing

apples

with

oranges.’” Id. (quoting Maniccia v. Brown, 171 F.3d 1364, 1368
(11th Cir. 1999)).
Lanier fails to establish disparate treatment because she does
not provide an appropriate comparator. Lanier does not demonstrate
that a white employee with the same or similar pattern of low
performance reviews, written warnings, and PIPs was not discharged.
Lanier also does not show that a white employee engaged in the same
or similar conduct without any disciplinary repercussions, e.g., a
written warning, with the exception of Fray.

Fray is not an

appropriate comparator because his performance, although arguably
worse than Lanier’s performance, was not “nearly identical” to
Lanier’s conduct with respect to the transferred phone call on
April 4, 2012. See id.

Fray failed to send documents to a patient

and insisted that Lanier transfer a patient call contrary to
official policy.

An appropriate comparator would be (i) a white

employee who, like Lanier, transferred a patient call contrary to
official policy but was not disciplined after the supervisor
learned of the call; and/or (ii) a white employee who had a similar
number of disciplinary actions over a similar period of time but

19

was not discharged.

Lanier does not offer evidence of such a

comparator in reference to her discharge.
For defendant’s failure to transfer Lanier, she has not shown
the disparate treatment element of her prima facie case.

Lanier

must show that defendant “treated similarly situated employees
outside [plaintiff’s race] classification more favorably.” See
Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir. 1997).

The

comparator must be “similarly situated in all relevant respects.”
Id. at 1562.5

For the failure to transfer, Herndon could be an

appropriate comparator.

The facts show that defendant allowed

Herndon, who is white, to transfer from Customer Service to Bad
Debt.

However, there is no admissible evidence as to what reasons

Herndon had for requesting the transfer or defendant’s reasons for
allowing it.

Although Lanier alleges that Herndon requested the

transfer to avoid duties that required her to answer phones and be
subject to tougher evaluations, these allegations are inadmissible
hearsay. See supra Discussion Section A.

Thus, Lanier has not

shown disparate treatment through an appropriate comparator for
defendant’s failure to transfer her.
Lanier has not shown a prima facie case of race discrimination
based either on her discharge or on defendant’s failure to transfer

5

Because the comparator must be similarly situated in all relevant
respects, Brooke Brock and Ms. Murphy do not qualify. If, as Lanier claims,
they were allowed to transfer because of tardiness and family issues, those
reasons differ significantly from Lanier’s dislike of Customer Service. See
Pl. Depo. 64–65.

20

her out of Customer Service. Accordingly, Lanier has not satisfied
her initial burden, and the court need not examine defendant’s
reasons offered for either of its actions. See Kidd v. Mando Am.
Corp., 731 F.3d 1196, 1202 (11th Cir. 2013). Defendant is entitled
to summary judgment on Lanier’s race discrimination claims.
CONCLUSION
Interpreting the facts in the light most favorable to Lanier,
she may have shown that she was treated unfairly.

However, “a

defendant may terminate an employee for a good or bad reason
without violating federal law.
adjudging

whether

We are not in the business of

employment

decisions

are

prudent

or

fair.

Instead, our sole concern is whether unlawful discriminatory animus
motivates a challenged employment decision.” Damon v. Fleming
Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999)
(citation

omitted).

Although

Lanier

may

have

been

treated

unfairly, the evidence does not show that defendant’s treatment was
motivated by her race or in retaliation for any protests of race
discrimination.

Accordingly, defendant is entitled to summary

judgment on all counts.
DONE this 20th day of February, 2014.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE
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