Hamilton v. Sheridan Healthcorp, Inc. et al

Filing 118

ORDER granting 59 Defendants' Motion for Summary Judgment. Signed by Judge James I. Cohn on 5/25/2014. (ns)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-62008-CIV-COHN/SELTZER
DR. DWAIN A. HAMILTON, M.D.,
Plaintiff,
v.
SHERIDAN HEALTHCORP, INC., SHERIDAN
HEALTHCARE, INC., DR. JOSEPH LOSKOVE,
M.D., and DR. JEAN MILES, M.D.,
Defendants.
/
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court upon Defendants' Motion for Summary
Judgment [DE 59] ("Motion"). The Court has reviewed the Motion, Plaintiff's Opposition
[DE 94], and Defendants' Reply [DE 98], and is otherwise advised in the premises.1 As
discussed more fully herein, the Court will grant the Motion and enter summary
judgment for Defendants on all claims.
I.

BACKGROUND
This action arises from race-based discrimination and retaliation Plaintiff Dr.

Dwain A. Hamilton, a black man, allegedly suffered at the hands of his employers,
Defendants Sheridan Healthcorp, Inc. and Sheridan Healthcare, Inc. (collectively
"Sheridan"), and his supervisors, Defendants Dr. Joseph Loskove and Dr. Jean Miles.
Sheridan contracts to provide medical services for numerous hospitals, including
1

Plaintiff requests that in deciding the Motion, the Court also take account of
materials he has submitted in support of his own motion for summary judgment. See
DE 90. Subject to the applicable evidentiary rules, the Court has considered these
materials in arriving at its determinations.

Memorial Regional Hospital ("Memorial"). DE 60 ¶¶ 1–3. Sheridan hired Hamilton in
July 2007 as an anesthesiologist at Memorial. Id. ¶ 3. Sheridan briefly transferred
Hamilton to Westside Regional Medical Center in January 2009, however it granted
Hamilton's request to return to Memorial in April 2009. Id. ¶¶ 4–5. Upon Hamilton's
return to Memorial, he was placed on the night shift. DE 88 ¶ 68. As the only
representative of the anesthesiology department on the night shift, Hamilton was the
head of the department during that shift and received a salary of $300,000 per year. Id.
In 2010, however, Sheridan began to receive complaints about Hamilton. Other
physicians at Memorial reported that Hamilton arrived late for work and at times
performed poorly. DE 60 ¶ 16. In September 2011, a surgeon filed an incident report
stating that Hamilton had delayed in providing anesthesia to a patient experiencing pain
during labor who required a cesarean section. Id. ¶ 23; DE 65-4 at 6.2 In March 2012,
2

Hamilton contests numerous portions of Defendants' Statement of Material
Facts as based upon inadmissible hearsay. The Court will not consider inadmissible
hearsay statements in arriving at its determinations. See generally Hetherington v. WalMart, Inc., 511 F. App'x 909, 910 (11th Cir. 2013) (per curiam) (discussing role of
hearsay evidence at summary-judgment stage). Nevertheless, many of Hamilton's
objections on the basis of hearsay are meritless. For example, Hamilton argues that
evidence of complaints made about him to Defendants is hearsay. See, e.g., DE 88
¶ 23. This evidence is not hearsay, however, because the complaints are not offered for
their truth. Instead, they are relevant for the fact of their communication to establish that
Defendants had a non-discriminatory basis for perceiving a need to discipline Hamilton.
See Jefferson v. Burger King Corp., 505 F. App'x 830, 836 (11th Cir. 2013) (per curiam),
cert. denied, 133 S. Ct. 2352 (2013); Fed. R. Evid. 801(c)(2).
The Court further notes that Hamilton responds to portions of Defendants'
Statement of Material Facts merely as "disputed," but does not identify a factual or legal
basis to contradict Defendants' assertions. See, e.g., DE 88 ¶ 16. However, "[f]or a
factual dispute to be genuine, it must have a real basis in the record, and mere
conclusions or unsupported allegations will not defeat a motion for summary judgment."
United States v. Romero, No. 13-13600, 2014 U.S. App. LEXIS 6867 at *14–15 n.9
(11th Cir. Apr. 14, 2014) (per curiam) (citing Ellis v. England, 432 F.3d 1321, 1325–26
(11th Cir. 2005)).

2

another surgeon reported that Hamilton delayed abdominal surgery for a patient with a
life-threatening condition by leaving for breakfast after assessing the patient, eventually
passing the patient on to another anesthesiologist for treatment. DE 60 ¶ 27. Finally, in
April 2012, a third surgeon complained that Hamilton had mismanaged staffing of the
anesthesiology department at the beginning of one of his shifts, resulting in a two-hour
delay of anesthesia to a post-operative patient in pain. Id. ¶ 28.
Memorial's compliance-related procedures also posed problems for Hamilton.
For example, Hamilton was required to obtain board certification within five years of
joining Memorial's staff. Id. ¶ 21. Accordingly, in May 2011, Hamilton informed Loskove
that he had passed the written portion of his board exam. DE 69-2 at 127:6–18.
Hamilton had not passed the written portion of the exam, however, and later admitted
that he had lied to protect his reputation. Id. at 129:13–20. Hamilton was warned that
further misrepresentations would result in his termination. Id. at 130:4–6. Hamilton also
failed to consistently check his work e-mail account, and failed to complete hundreds of
patient charts. DE 60 ¶ 25.
As a result of Hamilton's deteriorating performance, Loskove decided to move
Hamilton to the day shift, so that his performance could be monitored and improved. Id.
¶ 30. Loskove also decided to relieve Hamilton of his on-call duties, which resulted in a
$50,000 pay cut. Id. ¶ 33. Loskove met with Hamilton and human-resources
representatives on April 26, 2012, to inform Hamilton of the changes. Id. ¶ 31. During
this meeting, Hamilton was presented with a letter detailing his perceived performance
issues, and informing him of his shift change and monitoring. See DE 68-5. Loskove
explained the decision to Hamilton by stating: "I don't have confidence that you can be

3

the face of the department at night." DE 88 ¶ 77; see also DE 86 ¶ 9. Hamilton
interpreted this statement as a veiled reference to his race. DE 88 ¶ 77. As a result,
Hamilton became upset and left the meeting. DE 69-1 at 65:6–67:14. The next day,
Hamilton sent a text message to Loskove stating: "If I was Dr. Carmel, I'd still have my
job." DE 68-3 at 4. With this message, Hamilton intended to imply that he would be
treated more favorably if he were white, as is Dr. Carmel. DE 88 ¶ 78.
Hamilton was informed that his new schedule would take effect on May 7, 2012.
DE 60 ¶ 32. Hamilton requested time off from work prior to the start of the new
schedule, and Loskove permitted him to take vacation through May 21, 2012. Id. ¶ 34.
On May 18, 2012, Hamilton requested Family and Medical Leave Act ("FMLA") leave
through June 21, 2012, which Sheridan approved. Id. ¶ 37. On June 19, 2012,
Hamilton's wife informed Sheridan that Hamilton could not return to work until June 25,
2012. Id. ¶ 41. On June 25, Hamilton did not return to work, and instead requested
additional leave. Id. ¶ 42. Hamilton indicated that he intended to return to work on July
2, 2012, and that he would also provide Sheridan with a release from his doctor
indicating his fitness to return to work by that time. DE 88 ¶ 81; DE 74-3. Hamilton did
not report for work on July 2 or 3, however, nor did he advise the anesthesiology
department as to his whereabouts on either of those days. DE 60 ¶ 44. Because
Hamilton failed to return to work, Sheridan terminated his employment on July 3, 2012.
Id. ¶ 45; DE 88 ¶¶ 87–91.
Hamilton commenced this action on September 13, 2013. DE 1. Hamilton alleges
that Defendants discriminated against him on the basis of race when they removed him
from Memorial's night shift, subjected him to monitoring, cut his pay, and ultimately

4

terminated his employment. DE 9 ¶¶ 30–38. Hamilton also alleges that Defendants
retaliated against him by firing him after he complained of discrimination. Id. ¶¶ 52–58.
Hamilton therefore brings discrimination and retaliation claims against all Defendants
under 42 U.S.C. § 1981, and discrimination and retaliation claims against Sheridan
under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq.,
and the Florida Civil Rights Act ("FCRA"), Fla. Stat. § 760.01, et seq. In the Motion now
before the Court, Defendants seek summary judgment on all of Hamilton's claims.
II.

LEGAL STANDARD
A district court "shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a). The moving party "always bears the initial
responsibility of informing the district court of the basis for its motion, and identifying
those portions of [the record] which it believes demonstrate the absence of a genuine
issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To satisfy this
burden, the movant must show the court that "there is an absence of evidence to
support the nonmoving party's case." Id. at 325.
After the movant has met its burden under Rule 56(a), the burden of production
shifts, and the non-moving party "must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). As Rule 56 explains, "[i]f a party fails to properly
support an assertion of fact or fails to properly address another party's assertion of
fact . . . the court may . . . grant summary judgment if the motion and supporting
materials—including the facts considered undisputed—show that the movant is entitled
to it." Fed. R. Civ. P. 56(e)(3). Therefore, the non-moving party "may not rest upon the
5

mere allegations or denials in its pleadings" but instead must present "specific facts
showing that there is a genuine issue for trial." Walker v. Darby, 911 F.2d 1573, 1576–
77 (11th Cir. 1990). In deciding a summary-judgment motion, the Court must view the
facts in the light most favorable to the non-moving party and draw all reasonable
inferences in that party's favor. Davis v. Williams, 451 F.3d 759, 763 (11th Cir. 2006).
III. DISCUSSION
Defendants have moved for summary judgment on Hamilton's race discrimination
and retaliation claims .3 The Court agrees with Defendants that Hamilton has failed to
offer sufficient proof on dispositive elements of each of his claims. With regard to his
discrimination claims, Hamilton has not shown the existence of similarly situated
individuals who received favorable treatment. As to his retaliation claims, Hamilton has
not shown that Sheridan's proffered legitimate, non-retaliatory reason for his
termination—a failure to report for work—was pretextual. The Court therefore will grant
summary judgment for Defendants.
A. Hamilton Has Not Established a Prima Facie Case of Race Discrimination
A plaintiff alleging discrimination may prove his claim through direct or
circumstantial evidence. The showing necessary to support the claim depends upon the
sort of evidence used. A plaintiff's direct evidence of discrimination provides a simple
and quick route to proving a claim for discrimination. See Maynard v. Bd. of Regents,
3

The standards for discrimination and retaliation claims under each of the
relevant statutory regimes—42 U.S.C. § 1981, Title VII, and the FCRA—are the same.
See, e.g., Giles v. Daytona State College, Inc., 542 F. App'x 869, 872 (11th Cir. 2013)
(per curiam); Gray v. City of Jacksonville, 492 F. App'x 1, 3 (11th Cir. 2012) (per
curiam), cert. denied, 134 S. Ct. 84 (2013); Smith v. Lockheed-Martin Corp., 644 F.3d
1321, 1325 n.14 (11th Cir. 2011); Wilson v. Farley, 203 F. App'x 239, 247 (11th Cir.
2006) (per curiam). Accordingly, the Court will analyze the discrimination claims
together, and will analyze the retaliation claims together.

6

342 F.3d 1281, 1289 (11th Cir. 2003). Where a plaintiff offers circumstantial evidence,
however, the Court must proceed through the more involved burden-shifting analysis of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Maynard, 342 F.3d at 1289.
Accordingly, the Court must determine as a threshold matter whether Hamilton's
proffered evidence of discrimination is direct or circumstantial.
"Direct evidence is 'evidence, that, if believed, proves the existence of a fact
without inference or presumption.'" Wilson v. B/E Aero, Inc., 376 F.3d 1079, 1086 (11th
Cir. 2004). In line with this definition, statements unambiguously showing a causal link
between an adverse employment action and a plaintiff's protected characteristics are
direct evidence of discrimination. Wright v. Southland Corp., 187 F.3d 1287, 1306 (11th
Cir. 1999). However, "only the most blatant remarks, whose intent could be nothing
other than to discriminate on the basis of some impermissible factor," are sufficiently
clear to constitute direct evidence. Rojas v. Florida, 285 F.3d 1339, 1342 n.2 (11th Cir.
2002) (per curiam) (citations and internal quotation marks omitted). On the other hand, if
a statement merely suggests a discriminatory motive, "it is by definition only
circumstantial evidence." Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999).
Hamilton offers two statements that he contends are direct evidence of racial
discrimination. DE 94 at 8. First, Miles allegedly remarked in 2009 or 2010 that the
"Obamas [were] coming in" when referring to the shifts of Hamilton and his paired
certified registered nurse anesthetist ("CRNA"), a black woman. DE 75-1 at 77:5–78:8.4
4

The only evidence of this statement appears to be inadmissible hearsay. See
DE 75-1 at 77:5–78:8 ("A: . . . [Miles] said, 'The Obamas are coming in.' . . . Q: You
were present then? A: No. Somebody said that she said, 'The Obamas are coming in.'").
Nevertheless, the Court takes note of Miles's alleged statement because it is central to
Hamilton's allegations.

7

Second, Loskove told Hamilton during the April 26, 2012, meeting at which Hamilton
was removed from the night shift: "I don't have confidence that you can be the face of
the department at night." DE 88 ¶ 77.
However, neither statement unequivocally illustrates, without the aid of
inferences or presumptions, that adverse employment actions against Hamilton were
the result of racial animus. Miles's alleged comparison of Hamilton and the CRNA to the
Obamas is not direct evidence of discrimination because it lacks any obvious causal
connection to adverse employment action against Hamilton. See Wright, 187 F.3d at
1306. Likewise, Loskove's remark that Hamilton should not be the face of the
anesthesiology department is susceptible to multiple interpretations. Loskove may have
been referring to the numerous complaints Sheridan had received about Hamilton's
performance and responsiveness, and his conclusion that Hamilton's job-related issues
rendered him an inappropriate representative of the anesthesiology department during
the night shift. Loskove's remark—which may suggest a discriminatory motive, but is not
so blatant as to rule out non-discriminatory alternatives—therefore is also not direct
evidence of discrimination. See Rojas, 285 F.3d at 1342 n.2; accord Jones v. Heritage
Props., Inc., No. 05-162, 2007 U.S. Dist. LEXIS 4610 at *16–17 (N.D. Miss. Jan. 22,
2007) (comment that black employee should not "be the first face a person sees upon
coming through the door" was too ambiguous to prove discrimination directly).
Having determined that Hamilton proceeds on circumstantial evidence, the Court
must apply the McDonnell Douglas burden-shifting analysis. To make out a prima facie
case of employment discrimination within this framework, a plaintiff must generally show
that: "(1) he belongs to a racial minority; (2) he was subjected to adverse job action; (3)

8

his employer treated similarly situated employees outside his classification more
favorably; and (4) he was qualified to do the job." Holifield v. Reno, 115 F.3d 1555, 1562
(11th Cir. 1997) (per curiam). If a plaintiff shows he has a prima facie case, the burden
shifts to the defendant to offer a non-discriminatory justification for the adverse action. If
the defendant offers a non-discriminatory justification, the plaintiff must then show the
justification to be pretextual. Wilson, 376 F.3d at 1089–90. Here, the Court's analysis of
Hamilton's discrimination claims under the McDonnell Douglas analysis begins and
ends with the first step.
Hamilton has not made out a prima facie case of discrimination because he has
not shown the existence of similarly situated employees who received favorable
treatment. A plaintiff attempting to establish a prima facie case of discrimination must
generally show that similarly situated non-black employees received preferential
treatment. Woods v. Cent. Fellowship Christian Acad., 545 F. App'x 939, 945 (11th Cir.
2013) (per curiam). These similarly situated individuals, sometimes referred to as
"comparators," must be similarly situated in "all relevant respects." Knight v. Baptist
Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003) (per curiam) (internal
quotation marks omitted). This requirement poses a substantial hurdle for a plaintiff with
a record of job-related performance issues, because the plaintiff must identify
comparators with records of similar problems at least as severe as his own. Embry v.
Callahan Eye Found. Hosp., 147 F. App'x 819, 829–30 (11th Cir. 2005) (per curiam);
Knight, 330 F.3d at 1316–17.
In this case, Hamilton has not made out a prima facie case because he has failed
to provide any evidence of comparators with similar histories of disciplinary and job-

9

performance issues. Sheridan received multiple complaints about Hamilton's
performance and habitual tardiness. DE 60 ¶ 16. Some of these complaints reflected
significant and noteworthy incidents, such as Hamilton's alleged delay in providing
anesthesia to a patient in labor who required a cesarean section (id. ¶ 23), Hamilton's
decision to go for breakfast instead of promptly providing anesthesia to a patient with a
life-threatening condition and in need of abdominal surgery (id. ¶ 27), and his
mismanagement of staffing which resulted in a two-hour delay of anesthesia to a postoperative patient in pain (id. ¶ 28). Hamilton also lied to Loskove about passing the
written portion of his board exam. DE 69-2 at 127:6–129:20. Hamilton failed to check his
work e-mail account and to complete hundreds of patient charts. DE 60 ¶ 25. Finally,
immediately prior to his termination, Hamilton failed to report for work without notice. DE
60 ¶¶ 42, 44–45.
Hamilton cannot point to any potential comparator with a similar disciplinary
record. Hamilton proposes Sheridan's white anesthesiologists at Memorial as his
comparators. DE 94 at 6; see also DE 72-1 ¶ 4. These individuals, however, were not
the subject of complaints similar to those about Hamilton, particularly with respect to the
handful of patient-care incidents that stand out from Hamilton's record. DE 60 ¶ 51.
None of these individuals misrepresented their credentials to Loskove. Id. ¶ 54. None of
these individuals had a similar record of frequent tardiness. Id. ¶ 55. None of these
individuals failed to complete hundreds of patient charts. Id. ¶ 52. Nor does Hamilton
point to any anesthesiologist who failed to report for work without notice. In short,
Hamilton cannot identify an appropriate comparator, because each of his proposed

10

comparators lacks a work history similar to or as problematic as his own. See Embry,
147 F. App'x at 829–30.5
Absent direct evidence of discrimination, Hamilton must prove his case under the
McDonnell Douglas burden-shifting framework. Hamilton, however, has failed to identify
any similarly situated comparators, particularly with respect to their disciplinary histories.
Without these comparators, Hamilton cannot make out a prima facie case of
discrimination, and his discrimination claims fail as a matter of law. Accordingly, the
Court will grant summary judgment in Defendants' favor on those claims. See Knight,
330 F.3d at 1315–19 (affirming grant of summary judgment on race discrimination claim
where plaintiff failed to show comparators with similar disciplinary history).

5

A plaintiff may, in certain cases, survive summary judgment in the absence of a
sufficient comparator if he "presents a convincing mosaic of circumstantial evidence that
would allow a reasonable jury to infer intentional discrimination by the decisionmaker"
other than the preferential treatment of other individuals. Peters v. HealthSouth of
Dothan, Inc., 542 F. App'x 782, 786 (11th Cir. 2013). Aside from Loskove's equivocal
remark that he was uncomfortable with Hamilton being the face of the anesthesiology
department, however, Hamilton has provided little admissible evidence going to
Defendants' motives. As discussed more fully with regard to Hamilton's retaliation
claims, the "inconsistencies" he perceives in the justifications for his eventual
termination are manufactured and do not give rise to an inference of discriminatory
intent. Therefore, Hamilton has not presented the "convincing mosaic of circumstantial
evidence" that would allow him to establish a prima facie case in the absence of a
comparator. See Carter v. Demings, No. 11-1640, 2013 U.S. Dist. LEXIS 134900 at
*25–29 (M.D. Fla. Sept. 20, 2013) (granting summary judgment for defendant and
discussing quantum of evidence required to show "convincing mosaic of circumstantial
evidence"); St. George v. Advance Stores Co., No. 10-60036, 2011 U.S. Dist. LEXIS
140237 at *22–26 (S.D. Fla. Dec. 6, 2011) (same). Moreover, Hamilton himself
proceeds largely on the theory that he was treated less favorably than Sheridan's white
anesthesiologists. See DE 94 at 8, 10. The Court thus finds that the issue of appropriate
comparators is dispositive of whether Hamilton can make out a prima facie case.

11

B. Hamilton's Retaliation Claims Fail Because He Cannot Show
that Sheridan's Justification for His Termination Was Pretextual
The McDonnell Douglas burden-shifting analysis also applies to retaliation claims
supported only by circumstantial evidence. Dockens v. Dekalb Cnty. Sch. Sys., 441 F.
App'x 704, 708 (11th Cir. 2011) (per curiam). To establish a prima facie case of
retaliation, a plaintiff must show that: (1) he engaged in protected activity; (2) he
suffered an adverse employment action; and (3) there was a causal connection
between the protected activity and the adverse employment action. Pennington v. City
of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). Once the plaintiff has established a
prima facie case, the defendant may respond with evidence that legitimate, nonretaliatory reasons supported the adverse employment action. Id. The burden then
shifts back to the plaintiff to show that the defendant's reasons were pretextual. Id.
Here, Hamilton's retaliation claims ultimately fail because he has not shown that
Sheridan's proffered explanation for his termination—job abandonment—was a pretext
for retaliation.
Hamilton alleges that he engaged in protected activity when he complained of
race discrimination after the April 26, 2012, meeting at which he was disciplined by
Loskove, by telling Loskove: "If I was Dr. Carmel, I'd still have my job." DE 68-3 at 4;
DE 94 at 13. Carmel is a white Sheridan anesthesiologist. DE 60 ¶ 50. Hamilton
subsequently took FMLA leave for much of May and June 2012. On July 2, 2012,
however, Hamilton failed to return to work on the date he had agreed upon with
Sheridan's human resources personnel, and Sheridan terminated his employment on
the afternoon of July 3. DE 88 ¶ 87. Assuming without deciding that these facts are

12

sufficient to establish a prima facie case of retaliation, the burden then shifts to
Defendants to articulate a legitimate, non-retaliatory basis for Hamilton's termination.
Defendants contend that Hamilton was terminated not for retaliatory reasons, but
because he failed to return to work when he indicated he would. Sheridan and Hamilton
anticipated that Hamilton would return from leave on July 2, 2012. DE 60 ¶ 42; DE 88
¶ 81. Hamilton, however, did not come to work at Memorial on July 2 or 3, and did not
communicate with the anesthesiology department regarding his whereabouts. DE 60
¶¶ 44–45. Sheridan thus terminated Hamilton on July 3 for abandoning his job. Id.;
DE 88 ¶¶ 87–91. As abandonment is a legitimate, non-discriminatory reason for
discharge, see Fulwood v. Capital One Auto Fin., Inc., No. 09-378, 2011 U.S. Dist.
LEXIS 29395 at *10–11 (M.D. Fla. Mar. 22, 2011), the burden returns to Hamilton to
show that the reason was pretextual. See Pennington, 261 F.3d at 1266.
A plaintiff may establish pretext by showing that an employer more likely acted
with an improper motive or that its proffered explanation is not credible. Kragor v.
Takeda Pharms. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012). The plaintiff must
produce evidence that "reveal[s] such weaknesses, implausibilities, inconsistencies,
incoherencies or contradictions in the employer's proffered legitimate reasons for its
actions that a reasonable factfinder could find them unworthy of credence." Vessels v.
Atlanta Indep. Sch. Sys., 408 F.3d 763, 771 (11th Cir. 2005) (per curiam) (internal
quotation marks omitted). The plaintiff must show both that the reason offered by the
employer was false, and that retaliation was the real purpose of the actions. Reeve v.
Sec'y, DHS, 542 F. App'x 779, 781 n.2 (11th Cir. 2013) (per curiam). Conclusory
allegations are insufficient, and the plaintiff must present "concrete evidence in the form

13

of specific facts" showing that the employer failed to give an honest explanation for its
behavior. Dent v. Ga. Power Co., 522 F. App'x 560, 562 (11th Cir. 2013) (per curiam)
(internal quotation marks omitted)
Hamilton attempts to show pretext by arguing that Sheridan did not follow its
ordinary procedures when it terminated him. Hamilton asserts that Sheridan's usual
practice is to issue written physician work schedules in advance, to notify physicians of
changes to the schedule, and to contact physicians who do not appear for work as
scheduled. DE 88 ¶ 85. Hamilton contends that Sheridan failed to follow these
procedures when it terminated him without putting him on a written work schedule in
advance of July 2, 2012, and without calling him when he did not arrive for work on that
day. DE 94 at 17. Hamilton offers these irregularities to demonstrate that Sheridan's
proffered reason for his termination is unworthy of belief. Id. at 15–17. The Court agrees
with Hamilton that "an employer's deviation from its own standard procedures may
serve as evidence of pretext." Hurlbert v. St. Mary's Health Care Sys., Inc., 439 F.3d
1286, 1298–99 (11th Cir. 2006). Nevertheless, upon closer examination, the evidence
does not support Hamilton's contention that Sheridan significantly deviated from its
standard procedures in the time leading up to his termination.
The evidence shows that Sheridan's personnel prepare written work schedules
for Memorial's anesthesiology department well in advance, and that physicians who do
not appear for work as scheduled are typically contacted by telephone. DE 88 ¶ 85; see
also DE 68-7 at 100:10–104:10, 124:16–125:23. However, physician work schedules
are frequently rearranged as a result of conflicts and changes in circumstances. DE 86
¶¶ 28–29; see also DE 97 ¶¶ 28–29. Loskove therefore reviews the departmental

14

schedule on Sunday of each week, and communicates any changes to the physician
responsible for assigning anesthesiologists to operating rooms that day. DE 87-1 ¶ 5.
In late June 2012, Hamilton and Sheridan's human resources personnel had
agreed that Hamilton would return to work on July 2, 2012. DE 88 ¶ 81; see also DE
74-3. Loskove thus contacted the physician responsible for assigning anesthesiologists
on Sunday, July 1, 2012, and instructed him to add Hamilton to the schedule for
Monday, July 2. DE 87-1 ¶ 6; see also DE 68-7 at 99:13–101:22. Hamilton did not
report for work on July 2, however, nor did he communicate his whereabouts to the
anesthesiology department. DE 60 ¶ 44. Though the parties agree that no Sheridan
personnel spoke with Hamilton on July 2 (e.g., DE 88 ¶ 86), Loskove testified that he
believed that the department's secretaries had attempted to contact Hamilton when
Hamilton failed to report for work. DE 68-7 at 125:10–126:15.6
The "pretext inquiry centers upon the employer's beliefs," and an employer with a
good-faith impression of the facts surrounding an adverse employment decision will not
be found to have acted with retaliatory animus if that belief later proves to be mistaken.
Hudson v. Blue Cross Blue Shield of Ala., 431 F. App'x 868, 869–70 (11th Cir. 2011)
(per curiam). Therefore, the relevant inquiry is whether Loskove, as the alleged
decision-maker responsible for Hamilton's termination (DE 88 ¶ 96; DE 94 at 4),
believed that he and his staff had adhered to their ordinary procedures. Hamilton does
not offer any evidence to contradict Loskove's testimony that Hamilton was added to the
July 2 schedule according to the usual method of revising the schedule, or that Loskove
understood that the anesthesiology secretaries had tried to reach Hamilton by
6

Neither party has directed the Court to competent evidence regarding whether
the secretaries actually attempted to contact Hamilton.

15

telephone. Accordingly, Hamilton does not show any knowing deviation from normal
procedures, and instead reveals at most administrative confusion or miscommunication,
which is insufficient to support a showing of pretext. See Lane v. G.A.F. Material Corp.,
No. 11-2851, 2013 U.S. Dist. LEXIS 41374 at *18–20 (M.D. Fla. Mar. 25, 2013) (finding
alleged employer error inadequate to support showing of pretext on summary judgment,
and citing Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000)).
Hamilton also characterizes Sheridan's justifications for terminating him as
inconsistent and "shifting." DE 94 at 9. A review of the evidence, however, contradicts
Hamilton's assertions. Defendants have variously stated that Hamilton was terminated
"for cause," for "job abandonment," or because "he was due to return to work and never
returned." Id. These explanations, though differently phrased, do not conflict because
they each convey that Hamilton was terminated for failing to appear at work as required.
Consistent with these explanations, Sheridan's employee handbook states that failure to
report for work on the first business day following the last day of authorized leave, or
otherwise communicate with Sheridan regarding the absence, is grounds for
termination. DE 65-3 ¶ 8 & ex. 3. Defendants' explanations for Hamilton's termination
therefore are internally consistent and appear to conform to Sheridan's standing
policies.
The Court further rejects Hamilton's implication that a handful of collateral facts
bolster his showing of pretext. For example, Hamilton repeatedly invokes his FMLA
leave as somehow casting his termination in a suspicious light. See DE 94 at 17.
However, having conceded that he and Sheridan anticipated he would return on July 2,
2012 (e.g., DE 94 at 14), Hamilton directs the Court to no authority for the proposition

16

that his termination for failure to report for work on that date somehow runs afoul of the
FMLA. Cf. Herring v. Disetronic Med. Sys., No. 08-1013, 2010 U.S. Dist. LEXIS 54365
at *16–17 (S.D. Ind. June 1, 2010) (holding that termination of employee for failure to
return to work as she had represented she would did not violate FMLA). Nor does
Hamilton explain how his failure to provide Sheridan with a release to return to work
signed by his doctor (see DE 88 ¶ 81; DE 94 at 1) excuses his absence or renders his
termination suspect. Finally, the Court does not view Sheridan's apparent offer to
reinstate Hamilton (see DE 94 at 16) as probative of whether his termination for job
abandonment was pretextual.
Because Defendants have offered a legitimate, non-retaliatory reason for
Hamilton's termination, Hamilton bears the burden of showing that the reason was
pretextual. Hamilton, however, has failed to offer sufficient evidence of implausibilities,
inconsistencies, or other weaknesses in Defendants' explanation to support a finding
that it was false. Instead, the record reflects that Defendants made a colorable attempt
to comply with their ordinary procedures throughout the events surrounding Hamilton's
termination. As Hamilton cannot rebut Defendants' contention that he was terminated
for failing to appear at work on July 2, 2012, he has failed to satisfy his burden of
showing pretext, and Defendants are entitled to summary judgment on Hamilton's
retaliation claims.
IV. CONCLUSION
Hamilton's claims of discrimination and retaliation each suffer fatal flaws.
Hamilton has failed to support his discrimination claims with evidence of favorably
treated comparators who do not share his protected characteristics. Hamilton has also
failed to provide sufficient evidence to allow a factfinder to determine that Sheridan's
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reasons for terminating him were a pretext for retaliation. Defendants thus are entitled to
summary judgment on each of Hamilton's claims against them. It is thereupon
ORDERED AND ADJUDGED that Defendants' Motion for Summary Judgment
[DE 59] is GRANTED. The Court will enter a separate Final Judgment consistent with
this ruling.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County,
Florida, this 25th day of May, 2014.

Copies provided to:
Counsel of record via CM/ECF

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