           Case: 16-15620   Date Filed: 10/18/2017   Page: 1 of 17


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-15620
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 3:15-cv-00701-BJD-JRK



KIRBY MOHAMMED,

                                                          Plaintiff - Appellant,

versus

JACKSONVILLE HOSPITALISTS, P.A.,
a Florida Profit Corporation,

                                                         Defendant - Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (October 18, 2017)

Before HULL, JORDAN, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Plaintiff Kirby Mohammed (“Plaintiff”) appeals the grant of summary

judgment on her pregnancy discrimination claims under Title VII and the Florida

Civil Rights Act in favor of her former employer, Defendant Jacksonville

Hospitalists, P.A. (“Defendant”). Concluding that Plaintiff has not shown that the

reasons Defendant has given for her termination are pretextual, we affirm.

I.    BACKGROUND

      A.     Factual Background

      Plaintiff is a licensed practical nurse, which qualifies her to provide medical

care and medication and to work in a hospital, nursing home, or doctor’s office.

Prior to beginning her employment with Defendant, Plaintiff had worked as a nurse

at several short and long-term rehabilitation facilities and as a traveling nurse

performing home-health care nursing services. Plaintiff only did clinical work

during this time, and did not perform any administrative or marketing tasks.

      Defendant is owned by three physicians—Dr. Shawn Chopra, Dr. Mark

Blatt, and Dr. Kevin Crismond—who comprise the company’s board. The practice

administrator, Drew Snyder, oversees the office staff and human resources issues,

and though he attends board meetings with the three doctors and provides input,

his role is limited to implementing what the board decides. Doctors who work for

the company do not care for patients in their own facility, but rather care for

patients in hospitals, nursing homes, hospices, and long-term care facilities. This


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system allows for the doctors to remain in a patient’s continuum of care as he is

moved among facilities.

      While they were both working at the same facility, Dr. Chopra initiated

discussions with Plaintiff about her working for Defendant as a “nurse liaison.”

According to Plaintiff, Dr. Chopra described the position as one that involved

working closely with doctors and visiting different hospitals and facilities to

promote the company’s services in order to gain clientele, essentially becoming the

“face” of the company. Dr. Chopra told Plaintiff that the position was being

developed, and he would discuss hiring her with his colleagues. Plaintiff

expressed interest in the position if it was something that she could “grow with.”

      Dr. Chopra raised the possibility of Plaintiff taking on this role in a board

meeting, where it was discussed that the role would be to serve as an intermediary

between the doctors and the facilities they visit, as well as the ones that they did

not visit, to strengthen and develop relationships because the doctors did not have

the time to do so themselves. Dr. Chopra testified that the board wanted the nurse

liaison to visit facilities “independently and be mobile,” and that the outcome of

the nurse liaison’s efforts would be “the development of relationships and the

improvement of business.” Dr. Chopra acknowledged that because the position

was newly created, there would be a learning curve for both Plaintiff and the

doctors, though Dr. Chopra nevertheless recommended Plaintiff as being a good fit


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for the position. Snyder testified that, at her interview, Plaintiff indicated that she

understood the purpose of the position was to increase the number of facilities that

Defendant’s doctors visited, ensure that all of the patients requiring post-hospital

care were discharged to facilities where Defendant’s doctors visited, and to

improve relationships with existing facilities. Plaintiff testified that after her

interview, she understood the position to involve meeting with doctors and case

managers, as well as representatives of facilities where Defendant did not already

have doctors in order to build that relationship.

      Plaintiff was ultimately hired and began working for Defendant on July 16,

2014. Plaintiff’s offer letter indicated that there would be a 90-day probationary

period, after which there would be a performance appraisal. Plaintiff was not

guaranteed a minimum of 90 days of employment, and Plaintiff understood that

during this probationary period, she was an at-will employee. She reported

primarily to Drs. Chopra and Blatt. There was no formal training for the position.

Although the doctors provided Plaintiff with guidance, Dr. Chopra testified that the

role was one that did not require training, but rather the initiative required to

initiate contact with facilities and build relationships with them.

      Plaintiff testified that she performed a significant amount of data entry

during her first week of employment. She requested a meeting with Drs. Chopra

and Blatt to ensure that she would be able to do nurse liaison tasks, which she was


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not doing consistently by the first week in August, when the meeting was held.

While Plaintiff states that the doctors were “very complimentary,” Dr. Chopra

testified that they raised concerns about not seeing new facilities or an increase in

business, and reiterated to Plaintiff that she needed to show initiative and work

toward developing the business. After the meeting, Plaintiff’s job description was

updated to include daily meetings with the doctors and staff at the hospital, and she

visited the other facilities that the doctors worked at more frequently.

       Plaintiff testified that she could not visit existing facilities without an

introduction first because the facility representatives would not know who she was,

though she did call each facility every day to ensure the facilities were satisfied

and Defendant’s patients were properly cared for. Plaintiff also testified that she

did visit new facilities on her own initiative when the opportunity arose, dropping

off pens and cups at new facilities if she saw them while en route to dropping off

prescriptions at various facilities, which was one of her job duties. Plaintiff

testified to visiting seven to ten of these facilities during the course of her

employment, though Dr. Blatt testified that he wanted five visits per week.

Plaintiff also called facilities from a list of nursing rehab facilities in the area,

sometimes “randomly,” to introduce herself and the company. Plaintiff testified

that she did not arrange any meetings with any facility other than those done at the




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direction of the doctors, that she did not arrange any kind of promotional events,

and she did not bring any new clients to Defendant.

      At Dr. Chopra’s request, Plaintiff arranged a meeting with Riverwood

Rehabilitation, a facility that Defendant previously had a relationship with but that

had been lost as a client because of poor communication. Dr. Chopra testified that

Plaintiff was late for the meeting, brought the wrong refreshments, and was

dressed inappropriately. Plaintiff denies that she was late and brought the wrong

refreshments, but acknowledges that Dr. Chopra expressed his concerns regarding

her attire. Drs. Chopra and Blatt both testified that the meeting was poorly

organized and did not accomplish what it was supposed to.

      Plaintiff also attended a meeting with Dr. Blatt at Lifecare of Jacksonville,

which was also a facility whose relationship with Defendant had soured because of

poor communication. Plaintiff acknowledged that she was late for this meeting.

Dr. Blatt testified that Plaintiff was inappropriately dressed, and that the facility

administrator was visibly put-off by Plaintiff’s attire and conduct. From this

incident, Dr. Blatt concluded that Plaintiff did not have the right mindset for her

role. Dr. Blatt also noted incidents of Plaintiff’s unprofessional behavior while at

the hospital and interacting with hospital staff. Dr. Blatt recalled being frustrated

with Plaintiff’s job performance and informally counseling Plaintiff about

improving, but did not document these interactions in writing.


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         Plaintiff, who initially learned that she was pregnant on August 7, 2014,

found out on August 23, 2014, that she was having twins. Plaintiff informed Dr.

Chopra of her pregnancy that same day. According to Plaintiff, Dr. Chopra

responded by saying, “F**k. What are we going to do? This sucks. Are you

going to be able to do your job?”1 Despite Plaintiff’s assurances that she could

continue to perform her job, Dr. Chopra questioned whether she would be to

continue to travel to facilities and get in and out of her car. When Dr. Blatt learned

of Plaintiff’s pregnancy from Dr. Chopra, Dr. Blatt said, “That means she’s going

to do a worse job.” Dr. Blatt testified that he had concerns about Plaintiff’s

performance from “very early on,” and that there were plans to fire her before she

announced her pregnancy.

         Plaintiff testified that she became insecure and worried about her job

security after she informed Dr. Chopra of her pregnancy. Plaintiff claims that after

her pregnancy announcement, Dr. Chopra did not respond as promptly to calls and

text messages. Plaintiff notes that despite Dr. Blatt and Dr. Chopra assuring her

that she was doing a good job and that her pregnancy would not affect her job

security, the doctors were “definitely contemplating firing her.” At least two other

employees were pregnant during their time in Defendant’s employ, but were not

fired.

1
  Dr. Chopra claims that he did not swear, but rather congratulated her, told her that “children
are a blessing,” and sought to reassure her that her pregnancy would not affect her job.
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      On September 1, 2015, about nine days after Plaintiff announced her

pregnancy and forty-five days after Plaintiff began working for Defendant, Snyder,

along with Drs. Chopra and Blatt, met to determine whether to terminate Plaintiff.

Dr. Chopra testified that the meeting focused on Plaintiff’s failure to generate a

“significant increase in the business” and “some issues with the facilities that we

had interacted with her at,” ultimately concluding that “our expectation wasn’t

met” and the nurse liaison position was not the solution to Defendant’s problem.

Dr. Chopra further noted that Defendant received leads on new clients from a

colleague who had explained that generating such leads was simple, which

prompted Dr. Chopra to conclude that they had hired the wrong person for

Plaintiff’s position. Generally, issues with Plaintiff’s “attire, the inconsistency or

the disorganization of the meetings, the lack of development of new business, and

the fact that multiple office staff . . . said that they felt she wasn’t doing anything”

prompted the board to conclude unanimously that they should fire Plaintiff. The

board members knew that Plaintiff was pregnant and expressed concern about the

ramifications of firing a pregnant employee, but Snyder told the board that because

they were eliminating the position and not firing Plaintiff because of her

pregnancy, there should be no problem.

      Plaintiff met with Snyder and Dr. Chopra on September 19, 2014. Dr.

Chopra told Plaintiff that, although she had done a good job thus far, the practice


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had decided to eliminate her position because her salary could not be justified, as

the position was not producing the results that the doctors had expected it to.2 Dr.

Chopra offered to give Plaintiff a good reference. On a form provided to

Defendant’s payroll provider, the reasons indicated for Plaintiff’s termination were

“lack of work” and “position eliminated.”

       B.     Procedural History

       Plaintiff filed a charge with the Equal Employment Opportunity

Commission and received a right-to-sue letter on June 8, 2015. Plaintiff filed a

civil complaint against Defendant on June 11, 2015, alleging that she was fired

because of her pregnancy, and was therefore subjected to sex discrimination in

violation of Title VII, 42 U.S.C. § 2000e et seq., and the FCRA, Fla. Stat. § 760.01

et seq.3 Defendant moved for summary judgment, which the district court granted,

finding that Plaintiff had failed to rebut Defendant’s reasons for terminating her as

pretextual. Plaintiff timely appealed.

II.    DISCUSSION

       A.     Standard of Review



2
  Defendant notes that the board also ended the employment of a nurse practitioner who had
been hired in anticipation of increased business.
3
  Plaintiff also asserted under the Americans with Disabilities Act and the FCRA that she was
discriminated against because of her “perceived disability,” though the district court granted
summary judgment for Defendant on these claims. Plaintiff has not raised these claims again on
appeal.
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       We review a district court’s grant of summary judgment de novo, viewing all

evidence and drawing all reasonable inferences in favor of the nonmoving party.

Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1254 (11th Cir. 2012).

Summary judgment is proper only when “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). A genuine issue of material fact exists when “a reasonable jury

could return a verdict for the nonmoving party.” Gate Gourmet, 683 F.3d at 1254

(internal quotation marks omitted).

       B.      Whether Summary Judgment was Properly Granted

               1.     Discrimination Claims under Title VII

       Title VII prohibits employers from discriminating against an employee

because of pregnancy, and a claim for pregnancy discrimination requires the same

analysis as claims based on sex discrimination. 4 Id. at 1254–55. A plaintiff can

show discrimination through circumstantial evidence, as Plaintiff attempts to do

here. Holland v. Gee, 677 F.3d 1047, 1055 (11th Cir. 2012).

       In such cases, we typically apply the McDonnell Douglas burden-shifting

framework. Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).

Under this framework, a plaintiff must establish a prima facie case of

4
   The Florida Civil Rights Act is modeled after Title VII, and so Plaintiff’s claim under that
statute is analyzed under the same framework and does not require separate discussion. Alvarez
v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1271 (11th Cir. 2010); Delva v. Cont’l Grp., Inc.,
137 So. 3d 371, 375–76 (Fla. 2014) (holding that the FCRA prohibits pregnancy discrimination).
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discrimination, which requires showing that “1) the plaintiff was a member of a

protected class, 2) she was qualified to do the job, 3) she was subjected to an

adverse employment action, and 4) similarly situated employees outside of the

protected class were treated differently.” Id. A plaintiff who successfully makes

this showing “creates a presumption of discrimination,” which requires the

employer to then “articulate a legitimate, nondiscriminatory reason for its actions.”

Id. (internal quotation marks omitted). If the employer does so, the burden shifts

back to the plaintiff, who must then show that the employer’s proffered reasons are

pretextual and not the real reason for the employment action, but that unlawful

discrimination is. Id. A plaintiff must meet the given reasons “head on and rebut

[them]” through showing “weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions” in the employer’s reasons. Id. at 1055–56

(internal quotation marks omitted). As this Court has noted, “if an employee

cannot rebut her employer’s proffered reasons for an adverse action but offers

evidence demonstrating that the employer also relied on a forbidden consideration,

she will not meet her burden” under the McDonnell Douglas framework. Quigg v.

Thomas Cty. Sch. Dist., 814 F.3d 1227, 1238 (11th Cir. 2016).

      Plaintiff argues that she has presented sufficient evidence to allow a

reasonable jury to conclude that Defendant’s stated reasons for her termination

were pretexual. Plaintiff also argues that the district court did not construe the


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evidence in the light most favorable to her. Plaintiff contends that ultimately she

presented a “convincing mosaic of circumstantial evidence” that would allow a

jury to infer discrimination.5 Like the district court, we assume that Plaintiff has

established a prima facie case of discrimination.

       Defendant notes that Plaintiff was terminated because of her poor

performance and the determination that her position did not generate the revenue

expected to support it. An employer’s burden at this step is “exceedingly light,”

Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir. 1997), and the employer does not

need to show that it was actually motivated by these reasons. Holland, 677 F.3d at

1055. We agree with the district court that Defendant has satisfied this burden.

              2.      Whether Plaintiff Has Shown that Defendant’s Reasons for
                      Her Termination are Pretextual

       Turning to the question of whether Plaintiff has sufficiently shown that

Defendant’s proffered reasons for her termination are pretexual, and that unlawful

pregnancy discrimination was the real reason, we conclude she has not.




5
  This Court has noted that the McDonnell Douglas framework is not the exclusive means to
evaluate workplace discrimination under Title VII, and a plaintiff can survive summary
judgment if she can show “a convincing mosaic of circumstantial evidence that would allow a
jury to infer intentional discrimination by the decisionmaker.” Smith v. Lockheed-Martin Corp.,
644 F.3d 1321, 1328 (11th Cir. 2011) (footnote omitted) (quoting Silverman v. Bd. of Educ., 637
F.3d 729, 734 (7th Cir. 2011)). Ultimately though, the plaintiff’s required showing is the same:
the plaintiff must show that the evidence, “when viewed as a whole, ‘yields the reasonable
inference that the employer engaged in the alleged discrimination.’” Holland, 677 F.3d at 1056
(quoting Smith, 644 F.3d at 1326).
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      In finding that Plaintiff had not demonstrated pretext, the district court noted

that Plaintiff admitted to being “slow to start” the nurse liaison tasks, despite

knowing that self-initiative was required in the position; that she did not

consistently go to new facilities or set up meetings with contacts; that she was late

to meetings; that she secured employment for her mother at a facility she visited

while on the job; and that the doctors had concerns about Plaintiff’s job

performance “very early on” and met with Plaintiff before her pregnancy

announcement to reiterate their expectations.

      Plaintiff offers several arguments to show she was not actually fired for

“poor job performance.” Plaintiff argues that, to the extent she had any “slow

start” in performing actual nurse liaison tasks, Defendant is to blame because she

was initially assigned data entry tasks, and that it was she who took initiative to

ensure she was no longer assigned tasks that were not nurse liaison tasks. Plaintiff

also argues that if the doctors had any concerns “very early on” with her

performance, she was never informed or told her job was in jeopardy, including at

the early-August meeting. Plaintiff further argues that the “remedial” tasks she

was performing when she was terminated were either part of her job description or

were assigned by Snyder, who was not her supervisor, and so her doing remedial

work instead of visiting facilities should not be counted against her. Indeed,

Plaintiff argues that developing new business was only one of her duties, and that


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the work that she did do in maintaining and strengthening existing relationships

shows she did not in fact show poor job performance. Finally, Plaintiff notes that

she was never disciplined for any tardiness, attire, or performance issues.

      Each of these reasons is a variation on a common theme: that any blame for

Plaintiff’s “poor performance” rests on Defendant, not Plaintiff. Notably, Plaintiff

admits that she did not bring any new clients to the company, may have dressed

unprofessionally on occasion, was late to a meeting with clients, and helped her

mother get a position while on the clock for Defendant. Even assuming that

Defendant’s doctors were ineffective in communicating with Plaintiff the

expectations of her role and in helping her succeed in growing their business,

Plaintiff has not refuted the fact that her supervisors viewed her job performance as

poor, nor has Plaintiff shown that concern about her allegedly poor performance

was merely a pretext, with discrimination being the real reason for her termination.

See Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010)

(“The inquiry into pretext centers on the employer’s beliefs, not the employee’s

beliefs . . . . The question is whether her employers were dissatisfied with her

for . . . non-discriminatory reasons, even if mistakenly or unfairly so, or instead

merely used those complaints . . . as cover for discriminating against her.”).

      Concerning Plaintiff’s alleged failure to generate new business sufficient to

fund the position created for that purpose, Plaintiff argues that Defendant did not


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communicate any specific goals for the number of facilities she should be visiting

or create any other metrics for measuring her performance. Plaintiff further argues

that it was not until after she announced her pregnancy that the doctors suggested

that her position should generate enough new business to be “self-supporting.”

Plaintiff also argues that the value of her non-marketing efforts was ignored, and

the fact that the practice now needs to fill the nurse liaison position and has lost

access to facilities since Plaintiff was fired refutes Defendant’s proffered reason for

her termination. Plaintiff also takes issue with the characterization of her job as

primarily a marketing position and attempts to refute specific criticisms of her

marketing efforts.

      These arguments however, do not refute “head on,” the fact that at the time

of her termination, Defendant’s doctors made a business decision that Plaintiff

continuing to work in the nurse liaison position was not financially justified. Any

mischaracterization of Plaintiff’s efforts does not change the reality that she

brought no new clients to Defendant, and securing new clients was the impetus for

creating the position as well as the means by which Defendant was to earn the

revenue to pay for the position. And there is no dispute that at least some portion

of Plaintiff’s job responsibilities included generating new business relationships.

As with an employer’s assessment of performance issues, the wisdom of an

employer’s business decision to terminate an employee or eliminate a position may


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be faulted, but that decision itself cannot be unlawful so long as it is not actually

based on discrimination. Id. at 1266. Here, Plaintiff has not met the standard for

showing that the financial unviability of her position was just a pretext for the

decision to terminate her, with her pregnancy being the true reason.

      More generally, Plaintiff argues that the temporal proximity between her

pregnancy announcement and her termination should give rise to an inference of

discrimination. While temporal proximity may be evidence of pretext, such

evidence alone is insufficient to survive summary judgment. See Hurlbert v. St.

Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006). In this case,

any temporal proximity between Plaintiff’s informing the doctors about her

pregnancy and her termination does not directly rebut either of Defendant’s given

reasons for her termination. Similarly, Plaintiff’s proffer of statements made by

Drs. Chopra and Blatt upon learning of Plaintiff’s pregnancy do not prove pretext.

Plaintiff had demonstrated unsatisfactory job performance up to that point, and the

company had questioned the financial viability of her job position, given her sub-

par performance.

      Nor does Plaintiff’s argument that Defendant’s failure to clearly and

consistently articulate its reasons for Plaintiff’s termination show pretext. Plaintiff

argues that the “unsatisfactory work performance” justification for her termination

was not put forth until after this lawsuit was filed, but even if this were true,


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Plaintiff acknowledges that the stated reason for her termination at the time was

that the practice could not justify paying her salary given the poor results she had

shown. Plaintiff must rebut each of Defendant’s stated reasons for termination

before she can show pretext, and she has clearly failed to do so.

       Finally, based on these shortcomings in Plaintiff’s proof, we similarly

conclude that Plaintiff has not otherwise shown a “convincing mosaic of

circumstantial evidence” that allows the inference that she was intentionally

discriminated against because of her pregnancy. Because Plaintiff has failed to

rebut the non-discriminatory reasons for her termination, a jury cannot reasonably

conclude from the facts here that her termination was based only on her pregnancy.

See Quigg, 814 F.3d at 1238.

III.   CONCLUSION

       Plaintiff has not shown that Defendant’s stated reasons for her termination

were pretextual or that the evidence would otherwise allow a reasonable jury to

infer that she was terminated because of her pregnancy, and so the district court’s

order granting summary judgment for Defendant is AFFIRMED.




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