           Case: 17-12406   Date Filed: 05/09/2018   Page: 1 of 9


                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-12406
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 2:15-cv-00419-WHA-GMB

JANICE DUNCAN,

                                                           Plaintiff-Appellant,

                                  versus

STATE OF ALABAMA,
STATE OF ALABAMA DEPARTMENT OF TRANSPORTATION,
BILL FLOWERS,
in his individual capacity,
KELLY BRENDLE,
in her individual capacity,

                                                        Defendants-Appellees.

                       ________________________

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

                              (May 9, 2018)



Before WILSON, JORDAN and BLACK, Circuit Judges.

PER CURIAM:
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       Janice Duncan appeals pro se the district court’s grant of summary judgment

in favor of the Alabama Department of Transportation (ALDOT), Kelly Brendle,

and Bill Flowers (collectively, the Defendants) in her suit alleging employment

discrimination pursuant to Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. § 2000e-3(a) (Title VII), and 42 U.S.C. § 1983. Duncan asserts the

district court erred in granting summary judgment as to her race discrimination

claim against Brendle and Flowers, and her retaliation claim against the ALDOT. 1

After review,2 we affirm the district court’s grant of summary judgment.

                                      I. DISCUSSION

A. Race Discrimination

       Duncan contends the district court erred in granting summary judgment on

her race discrimination claim against Brendle and Flowers because she established

a prima facie case under the standard described in McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), as well as under the “convincing mosaic” standard

articulated in Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir.
       1
         In the district court, Duncan did not present a race discrimination claim against the
ALDOT or a retaliation claim against Brendle and Flowers. Accordingly, to the extent she now
seeks to raise these claims on appeal, she has forfeited them and we will not consider them
further. See Blue Martini Kendall, LLC v. Miami Dade County, 816 F.3d 1343, 1349 (11th Cir.
2016).
       2
          We review de novo a district court’s grant of summary judgment, viewing all evidence
and reasonable factual inferences in the light most favorable to the nonmoving party. Crawford
v. Carroll, 529 F.3d 961, 964 (11th Cir. 2008). Summary judgment is properly granted only if
“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).

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2011). Duncan asserts Brendle’s and Flowers’ race discrimination caused her

demotion under the cat’s paw theory. She argues the district court incorrectly

determined her demotion was untainted based on Maxine Wheeler’s and DeJarvis

Leonard’s independent investigations because Wheeler did not make a

recommendation and Leonard discounted the entirety of evidence from his hearing.

She contends Lamar Woodham and Leonard both lied when they said they relied

on Wheeler’s recommendation to demote her. Rather, all decisionmakers relied on

the tainted recommendations of Flowers and Brendle.

      Where there is no direct evidence of discrimination, but only circumstantial

evidence, we use the McDonnell Douglas framework. Holland v. Gee, 677 F.3d

1047, 1055 (11th Cir. 2012). Under the McDonnell Douglas framework, a plaintiff

first must establish a prima facie case of discrimination that creates a presumption

the employer unlawfully discriminated against her. Flowers v. Troup Cty. School

Dist., 803 F.3d 1327, 1336 (11th Cir. 2015). If the plaintiff establishes a prima

facie case, the burden of production then shifts to the employer to articulate a

“legitimate, non-discriminatory reason” for the challenged employment action. Id.

If the employer satisfies this burden, the burden shifts back to the plaintiff to

demonstrate that the proffered reason is merely a pretext for unlawful

discrimination. Id.




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      A plaintiff can also survive summary judgment by presenting

“circumstantial evidence that creates a triable issue concerning the employer’s

discriminatory intent.” Smith, 644 F.3d at 1328. Such “[a] triable issue exists if

the record, viewed in a light most favorable to the plaintiff, presents a ‘convincing

mosaic’ of circumstantial evidence that would allow a jury to infer intentional

discrimination by the decisionmaker.” Id.

      When a claim involves an adverse employment action that occurs based on a

biased recommendation by a party without decisionmaking authority, a plaintiff

can establish liability under the cat’s paw theory. Stimpson v. City of Tuscaloosa,

186 F.3d 1328, 1331-32 (11th Cir. 1999). Under that theory, if the decision-making

party followed the biased recommendation without independently investigating the

complaint—essentially acting as a rubber stamp of the biased recommendation—

then the recommender’s discriminatory animus is imputed to the decisionmaker.

See id. However, the plaintiff must prove that the discriminatory animus behind

the recommendation, and not the identified employee misconduct, was an actual

cause of the adverse employment action. Id. When an employer makes an effort to

independently investigate before making an adverse employment decision, it

should not be held liable for another employee’s hidden discriminatory motives.

Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249-50 (11th Cir. 1998).




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      However, we have not addressed the viability of the independent

investigation defense in a race discrimination case since the Supreme Court’s

decision in Staub v. Proctor Hosp., 562 U.S. 411, 416, 422 (2011). In Staub, the

Supreme Court, in addressing a discrimination claim under the Uniformed Services

Employment and Reemployment Rights Act (USERRA), concluded an

independent investigation did not relieve an employer of fault where the

supervisor’s biased act was intended to cause and proximately caused an adverse

employment action. Id. at 422. Nonetheless, the Supreme Court stated there can

be no proximate cause, and therefore no liability, if the adverse action is entirely

justified apart from the biased supervisor’s recommendation. Id. at 421-22.

      Because Staub considered the cat’s paw theory in the context of USERRA, it

did not directly overrule precedent applying the theory in the context of other

statutes. See Sims v. MVM, Inc., 704 F.3d 1327, 1335-36 (11th Cir. 2013). In the

context of the Age Discrimination in Employment Act, we have indicated that,

while the cat’s paw theory may be appropriate in cases in which the plaintiff is

required to prove only that the protected characteristic was a motivating factor,

such as in Title VII disparate treatment claims, the theory is inappropriate when the

statute requires but-for causation. Id.

      Duncan’s race discrimination claim fails whether or not we apply the cat’s

paw theory and independent investigation defense. Assuming the cat’s paw theory


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applies, the undisputed evidence in the record indicates that any alleged bias was

not the proximate cause of her demotion. See Staub, 562 U.S. at 417-418. Duncan

admitted that, in 2013, she changed her management style, implemented new rules,

and started walking around and monitoring employee conversations, which led to

increased complaints. This conduct led to a work environment that her

subordinates described as stressful and uncomfortable. Duncan admitted she

looked through employee desks when she needed to find something and she

allowed one employee to have access to an e-mail which contained reference to the

personal medical information of another employee. Duncan also admitted she

knew that Brendle planned on reallocating work assignments and Duncan still

handed out her own proposed assignments, although she termed this a

“misunderstanding,” and not intentional.

       This admitted conduct formed the basis, in large part, for Wheeler’s

conclusion that Duncan violated several of the ALDOT rules, and for Leonard’s

conclusion that demotion was warranted, based on the same rule violations. 3 The

ALDOT rules allow for suspension or discharge for a first instance of more serious

rule violations, such as disruptive behavior. Accordingly, Woodham’s ultimate

       3
         While Duncan correctly notes that the district court erred in stating Wheeler
recommended her demotion, Leonard and Woodham did not rely on a mistaken belief that
Wheeler had recommended demotion. The district court did not err in granting summary
judgment in favor of Brendle and Flowers, regardless of this mistaken statement. See Alvarez v.
Royal Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010) (explaining the district court's
decision may be affirmed if the result is correct, even if the court relied upon an incorrect ground
or gave a wrong reason).
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decision to demote Duncan was “entirely justified” by the undisputed evidence in

the record, apart from any bias tainting Flowers’ initial recommendation. See

Staub, 562 U.S. at 421-22.

        Assuming the cat’s paw theory does not apply and that Duncan established a

prima facie case of race discrimination under the McDonnell Douglas standard,

she failed to meet her burden to establish the Defendants’ proffered reason for her

demotion was pretextual. See Flowers, 803 F.3d at 1336. Duncan referred to

pretext only in relation to her Title VII claim, suggesting the record demonstrates

retaliation because 2013 was the only year in which she was disciplined. This

allegation does not demonstrate the Defendants’ proffered reason for demotion—

multiple rule violations in 2013—was pretextual. Likewise, the record, even

viewed in the light most favorable to Duncan, does not otherwise present a

“convincing mosaic” of circumstantial evidence that would allow a jury to infer

intentional discrimination in the decision to demote her. See Smith, 644 F.3d at

1328.

B. Title VII Retaliation

        Duncan asserts the district court erred in granting summary judgment on her

retaliation claim against the ALDOT because she established a causal connection

between an internal complaint she filed with the ALDOT and her demotion.

Because the ALDOT had notice of her May 2013 internal complaint and the EEOC


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charge she filed in October 2013, Duncan argues that Woodham is deemed to have

had knowledge of them when he authorized her demotion, and therefore, causation

is established.

      Title VII prohibits an employer from retaliating against an employee

because the employee “opposed any practice” made unlawful by Title VII. 42

U.S.C. § 2000e-3(a). Absent direct evidence of discrimination, we employ the

McDonnell Douglas framework when analyzing claims for retaliation. Bryant v.

Jones, 575 F.3d 1281, 1307 (11th Cir. 2009). Under this framework, a plaintiff

establishes a prima facie case of retaliation by showing that she: (1) engaged in a

statutorily protected activity; (2) suffered an adverse employment action; and

(3) established a causal link between the protected activity and the adverse action.

Id. at 1307-08. She must show the causal connection under a but-for standard,

requiring a showing that she would not have suffered the adverse employment

action if she had not engaged in the protected conduct. Univ. of Tex. Sw. Med. Ctr.

v. Nassar, 570 U.S. 338, 362 (2013). “At a minimum, a plaintiff must generally

establish that the employer was actually aware of the protected expression at the

time it took adverse employment action.” Clover v. Total Sys. Servs., Inc., 176

F.3d 1346, 1354 (11th Cir. 1999) (quotations omitted).

      Even viewing the evidence in the light most favorable to Duncan, she failed

to establish a prima facie case of retaliation. Although the record indicates the


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decisionmaker had actual knowledge that Duncan filed some type of complaint

with the ALDOT, there is no evidence in the record that Woodham was actually

aware the internal complaint raised any allegations of race discrimination, such

that it constituted a protected expression. See Clover, 176 F.3d at 1354.

      However, even assuming Woodham was actually aware Duncan had

engaged in protected conduct by filing the internal complaint, the undisputed

evidence demonstrates Duncan’s demotion was justified and not motivated by bias.

Accordingly, Duncan failed to meet either the proximate cause standard under

Staub or Nassar’s heightened but-for causation standard. See Staub, 562 U.S. at

422; Nassar, 570 U.S. at 362. Additionally, even assuming that Duncan had

established a prima facie case of retaliation, she failed to meet her burden of

establishing the Defendants’ proffered reason for her demotion was pretextual. See

Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1310-11 (11th Cir. 2016) (“If the

employer is able to advance legitimate reasons for the adverse employment action,

the burden shifts back to the employee to demonstrate, by a preponderance of the

evidence, that the employer’s reasons are pretextual.”).

                                 II. CONCLUSION

      The district court did not err in granting summary judgment in favor of the

Defendants. Thus, we affirm.

      AFFIRMED.


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