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                                                              [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 17-15275
                           ________________________

                    D.C. Docket No. 1:14-cv-00110-JRH-BKE


MELINDA BEAZLEY PEARSON,

                                                                Plaintiff-Appellant,

versus

AUGUSTA GEORGIA,
through its Mayor Hardie Davis, Jr.,
in his official capacity, and its commission,
in its official capacity,
FRED RUSSELL,
individually and in his capacity as City Manager,
as a final policy maker, under color of law,
BILL SHANAHAN,
individually and in his official capacity,
under color of law,
SAM SMITH,
individually and in his official capacity,
under color of law,
JOHN AND JANE DOE,
whose true names are not known,
individually and in his or her individual capacity,
under color of law, Individually or jointly,
and in conspiracy with one another,

                                                             Defendants-Appellees.
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                              ________________________

                      Appeal from the United States District Court
                         for the Southern District of Georgia
                            ________________________

                                       (May 11, 2020)

Before ED CARNES, Chief Judge, JULIE CARNES, and CLEVENGER,* Circuit
Judges.

PER CURIAM:

       Melinda Pearson worked for the City of Augusta, Georgia, for thirty years.

For most of that time she complained of unfair and discriminatory treatment. After

being demoted, injured on the job, and then fired, Pearson sued her former

employer and three of its employees alleging various forms of discrimination and

retaliation. The district court granted summary judgment against her on all but one

of her claims, which went to trial. At the close of Pearson’s evidence, the court

granted judgment as a matter of law against her, disposing of her last remaining

claim. This is her appeal.




       *
          Honorable Raymond C. Clevenger, III, United States Circuit Judge for the Federal
Circuit, sitting by designation.


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                                     I. BACKGROUND

                                           A. Facts

       Pearson, a white woman, started working as a summer employee for the

parks and recreation department in the City of Augusta in 1980. 1 She was

promoted several times. In 1992 she became a Special Activities Supervisor.

During her time as a supervisor she twice complained to human resources that,

even though she was a supervisor, she was being forced to do manual labor in an

attempt to make her “work out of [her] job.” Nothing came of her complaints.

       In 1996, Pearson was promoted to operations manager in the parks and

recreation department. Despite the promotion, she continued to have problems.

One of those problems arose in 1999 from her attempt to use “comp time,” which

is short for compensatory time, an alternative to overtime. Under the comp time

system, an employee who worked more than 40 hours in a pay week could bank

those extra hours for later use as paid time off. Instead of receiving overtime pay

in cash, the employees could take an equivalent number of paid hours off work

later. The City had a general policy of not allowing exempt employees — that is,

salaried employees like Pearson who were exempt from the Fair Labor Standards

Act’s overtime requirements — to accrue or use comp time. Only those who were



       1
         We refer to the defendants collectively as “the defendants,” and, where context requires,
to the City of Augusta by itself as “the City.”


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considered non-exempt employees under the FLSA were supposed to use comp

time.

        Despite that, until 1999 the human resources department had allowed

Pearson to accrue and use comp time. But that year her manager denied her

request to use comp time on the ground that she was an exempt employee. After

she complained, however, the human resources director wrote a letter to Pearson

and her manager, stating that because she had already accrued comp time that was

“in the payroll system,” there was “no other option other than to compensate her

for her time,” meaning to let her use it for paid time off.

        That letter did not say if Pearson would be allowed to continue accruing

comp time, although it did state that “exempt employees do not accrue

compensatory time.” And in a conversation they had, the department director told

Pearson that, unlike non-exempt employees, she could no longer report comp time

on her official timecard.

        Both exempt and non-exempt employees submitted weekly timecards to the

payroll department. Exempt employees indicated on their timecards only whether

they had worked a full day or taken some sort of paid time off, like vacation or sick

time. Non-exempt personnel, also known as hourly employees, recorded on their

timecards the exact number of hours they had worked and also noted how many

comp time hours they had accrued that week. If a non-exempt employee wanted to



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use comp time, he would mark the timecard to show that he was not working and

would write on the timecard the amount of comp time hours he wanted to use that

day. The payroll department tracked comp time hours accrued by non-exempt

employees. The department did not track comp time for exempt employees,

because under City policy they were not supposed to have any.

      But they did, at least to some extent and at least in the parks and recreation

department, which created a system to allow exempt employees to use comp time,

despite it being prohibited. Under that system, an exempt employee would fill out

a piece of paper each time he accrued comp time and place the paper in a binder on

the assistant director’s desk. When he wanted to use accumulated comp time

hours, the exempt employee would retrieve his comp time paper from the binder

and submit it to his supervisor. The supervisor would then approve the exempt

employee’s use of comp time to take off a day or some part of it. That was,

however, not quite enough to make the off-the-books operation work.

      Before the comp time consuming employee in the parks and recreation

department could be paid as though he had worked instead of being off that day,

the payroll department had to approve the employee’s timecard and, as we have

explained, the City supposedly did not allow exempt employees to earn or use

comp time. So Pearson and the other exempt employees in the parks and

recreation department, with the approval of their managers, submitted timecards to



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the payroll department showing that they were working a full day, even when they

were not working all or even part of that day but were instead using comp time to

be off. Under that informal, de facto system, the human resources and payroll

departments had no record of any exempt employees, including Pearson, ever

accruing and using comp time.

      It was under that system that Pearson, like other exempt employees in the

parks and recreation department, kept track of and used her comp time. And even

after the 1999 incident, and throughout her remaining employment there, her

managers continued to approve her use of it.

      Comp time was not the only problem that Pearson complained about. She

also complained that she was required to do manual labor despite her operations

manager job description not mentioning that it was required. And doing manual

labor eventually led to serious injury. In 2004 she was trying to wrestle a tent

beam off the back of her truck when the beam got caught and threw her into the

back of the truck. Because she was in pain and had major bruising, she went to the

doctor. He told her that she had dislocated her shoulder, and he put her arm in a

sling. When she returned to work a week later, her manager assigned her more

manual labor.

      The next week the pain got worse. She went to another the doctor who

discovered that she had three ruptured discs in her spine, which the first doctor had



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missed. Because it was a work-related injury, workers’ compensation paid her

medical expenses. Pearson was out of work for six months because of her back

injury.

      There were more problems. In 2005 Pearson complained that male

managers were receiving extra pay for taking on extra work, but she was not. That

year she filed an EEOC sex discrimination charge against her manager and the

City, alleging that she was treated worse and paid less than the other managers —

all of whom were men. All of the male managers had offices, she had none. All of

the male managers could wear what they wanted, she had to wear a uniform. She

was issued a right to sue letter but decided not to sue at that time.

      In 2008 Pearson contracted MRSA (Methicillin-resistant Staphylococcus

aureus), a serious infection, although the record does not indicate how she got it. It

resulted in her having 29 surgeries between 2008 and 2011. After each one of

those surgeries she was out of work for at least a week. Sometimes more.

      In July 2011 Pearson had a severe MRSA flare up and was out of work until

December 2011. During that time she was placed on Family Medical Leave Act

leave. She was paid through mid-August (using her accrued vacation and sick

leave), but after that her leave was unpaid. Pearson called a parks and recreation

administrative assistant who handled timecards for the department and asked to

use some of her comp time to extend the paid portion of her leave. But she was



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told parks and recreation was “going to have to hold [her] time of comp until [she]

returned.”

      She was instead granted catastrophic leave, a program under which

employees can donate time off to an employee in need of it. Catastrophic leave is

available only to employees who have exhausted all other forms of paid leave,

including comp time. Many of the employees under Pearson’s supervision donated

their time off to her.

      In December 2011, the City put out a new handbook explicitly providing

that exempt employees could not accrue or use comp time. On December 8, 2011,

Pearson signed a form acknowledging that she had received and had the

opportunity to read the entire handbook.

      Shortly after Pearson returned to work in December 2011, she experienced a

new set of problems: she did not get along with her new manager, Dennis Stroud,

and she found some of the employees under her supervision, particularly Sam

Smith and Millie Armstrong, to be insubordinate. After one particularly “horrible

conversation” (her description) in late December, Pearson told Stroud that she was

going to file a formal complaint against him. She requested time off to cool down,

and Stroud agreed: he told her not to come back until after the New Year, which

would mean she would be out of work for four days. But there was a

complication. Because Pearson had only recently returned from an extended leave



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of absence, she had exhausted most of her available time off. All she had left was

comp time, which she requested permission to use so she would not lose pay

during those days that she would be out of work. Tom Beck, the parks and

recreation director, approved her request. In keeping with the practice of the parks

and recreation department, Pearson submitted a timecard indicating that she had

worked each of those four days.

       Pearson’s four-day leave of absence did not go unnoticed. In early 2012 the

City’s human resources department began an investigation into her use of comp

time. Bill Shanahan, who was acting as the interim director of human resources

and, later, as the interim director of the parks and recreation department, oversaw

the investigation. During the investigation Shanahan reviewed the parks and

recreation payroll records and interviewed several employees including Pearson

and Tom Beck, her supervisor (Stroud, her former supervisor, was fired between

the time Pearson made the request and the time the comp time was approved). 2

Pearson also provided a written statement about the matter to Ron Clark, who

worked in the human resources department.


       2
          During the investigation, someone leaked several documents from Pearson’s file to the
media, including disciplinary write-ups that she had received over her thirty years of
employment with the City for infractions such as failing to wear a uniform or leaving without
telling a manager. Later, someone also leaked some medical documents related to her workers’
compensation claim to the press and alleged that she had falsified that claim. The leaked
information had been kept in the human resources office, and Pearson testified in her deposition
that Shanahan had admitted leaking those documents to the press. But he denied admitting it or
doing it.


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      Shanahan concluded that Pearson’s December 2011 use of comp time was

improper for two reasons. First, as an operations manager, she was an exempt

employee and was thus ineligible to accrue and use comp time under the City

policy. And second, she was required to have exhausted any comp time she did

have during her July 2011 to December 2011 leave of absence before she used

donated leave time from other employees. Shanahan demoted Pearson from

operations manager to maintenance worker on May 2, 2012, a demotion that came

with a pay cut of about fifty percent. Pearson appealed Shanahan’s decision; it was

reviewed and affirmed by Fred Russell, the City’s administrator.

      In May 2012, Pearson began working in the new position of maintenance

worker to which she had been demoted. Although she complained that the work

was hurting her back, her manager told her that she had to continue working

without any assistance. By the end of the month she had re-injured her back and

had to go on medical leave again. She remained on leave for over eight months,

until February 2013. At that point Pearson had not been medically cleared to

return to work, and she had exhausted all of the leave available to her, so the City

terminated her employment.

                               B. Procedural History

      In October 2012, before she was terminated but after she had been demoted

and had left on medical leave, Pearson filed an EEOC charge. She alleged that her



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demotion from operations manager to maintenance worker was the result of race

and gender discrimination and retaliation. In March 2013, after she was

terminated, she filed a second EEOC charge alleging that she was fired because

she had a disability (her back injury) and in retaliation for filing her October 2012

EEOC charge. She received right to sue letters in January 2015 and, with the

assistance of counsel, she sued the City. Pearson had already filed a separate

lawsuit against the City, Shanahan, Russell, and Sam Smith involving related

subject matter. The district court consolidated the two lawsuits.

      In total, Pearson brought a plethora of claims in a plethora of paragraphs on

a plethora of pages in three different complaints. The complaint in her first lawsuit

was 28 pages and 242 paragraphs long. The complaint in her second lawsuit was

originally 65 pages and 543 paragraphs long, but she submitted an amended 19-

page, 125-paragraph complaint. Considering only the two complaints that went to

judgment, and forgetting the second lawsuit’s superseded one, in 367 paragraphs

spread over 47 pages Pearson asserted claims under the Fair Labor Standards Act,

the Family Medical Leave Act, the Americans with Disabilities Act, Title VII of

the Civil Rights Act of 1964 (for race-based discrimination, sex-based

discrimination, hostile work environment, and retaliation), the Due Process Clause,

and the Equal Protection Clause. She brought claims against the City as well as

Shanahan, Smith, and Russell in both their individual and official capacities. Some



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of the claims were based on her demotion, some were based on the City’s denial of

her comp time requests, and some were based on her termination. And it is not

obvious from the face of the complaints which claims arose from whose actions.3

       The district court first dismissed the official capacity claims against the

individuals. It later granted the defendants summary judgment on all but one of

Pearson’s claims, the Title VII retaliatory termination claim. The case proceeded

to trial on that one claim and after the close of Pearson’s evidence, the court

granted the defendants’ motion for judgment as a matter of law on it.

       As best we can tell from her briefs to this Court, Pearson challenges the

district court’s grant of summary judgment in the defendants’ favor on these

claims: procedural due process violations under the Fourteenth Amendment (for

her demotion and for the termination of her employment); Title VII race and sex

discrimination (based on her demotion); 42 U.S.C. § 1983 equal protection

violation (based on her demotion); Title VII retaliatory hostile work environment;

Title VII hostile work environment (based on her race and sex); FLSA retaliation;

and an ADA claim (based on her termination). She also challenges two of the



       3
         The district court described that complaint as “not clear at all” and “lack[ing] the clarity
and precision that Rule 8 demands in abundance. It is replete with incoherent sentences, many of
which are either missing words . . . or span up to nine lines without a single period . . . . It
references over twenty individuals who are not defendants: some by first name, some by last
name, some who were Ms. Pearson’s subordinates, some who served in a supervisory capacity,
some who worked for other City departments, and some whose relevance to Ms. Pearson’s
claims are tangential at best.”


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district court’s evidentiary rulings at trial. Finally, she contends that the district

court erred by granting judgment as a matter of law on her Title VII retaliatory

termination claim. 4

       Pearson’s contentions that the district court erred by granting summary

judgment on her Title VII race discrimination claim, Title VII retaliatory hostile

work environment claim, Title VII hostile work environment claims based on race

and sex, FLSA retaliation claim, and ADA claim are clearly without merit and do

not warrant discussion. We affirm the district court’s judgment on those claims

without saying more.

       That leaves her contention that the district court erred in granting summary

judgment on her due process claims, her § 1983 equal protection claim, and her

Title VII sex discrimination claim, as well as her contentions that the court erred in

its evidentiary rulings and its grant of judgment as a matter of law on her Title VII

retaliatory termination claim. We discuss each of those contentions in turn.

                              II. SUMMARY JUDGMENT

       “We review the district court’s order[s] granting summary judgment de

novo, viewing all the evidence, and drawing all reasonable inferences in favor of”




       4
           Those are the only claims she addresses on appeal, and as a result she has abandoned
any others. Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We
have long held that an appellant abandons a claim when he either makes only passing references
to it or raises it in a perfunctory manner without supporting arguments and authority.”).


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the party opposing the motion. Scott v. United States, 825 F.3d 1275, 1278 (11th

Cir. 2016) (quotation marks omitted). 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). “A ‘material’ fact is one that ‘might affect the outcome of the suit under the

governing law.’” Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295, 1303 (11th Cir.

2016) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). And a

“dispute about a material fact is ‘genuine[]’ . . . if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson, 477

U.S. at 248.

                                A. Due Process Claims

      Pearson contends that the defendants violated her due process rights by not

providing any pre-deprivation process before her demotion or her termination. The

district court relied on McKinney v. Pate, 20 F.3d 1550 (11th Cir. 1994) (en banc),

to deny both of her procedural due process claims on the ground that state law,

through a mandamus petition, provided a means to remedy any procedural

deprivation she may have suffered, yet she failed to file one. See id. at 1563.

According to Pearson, the McKinney rule does not relieve the City from providing

her with the pre-deprivation process she was guaranteed under Cleveland Board of

Education v. Loudermill, 470 U.S. 532 (1985). She argues that because she didn’t



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receive proper pre-deprivation process under Loudermill, the district court should

not have granted summary judgment on her due process claims.

      Pearson’s argument fails because she did receive adequate pre-deprivation

process under Loudermill. See Thomas v. Cooper Lighting, Inc., 506 F.3d 1361,

1364 (11th Cir. 2007) (“We may affirm the district court’s judgment on any

ground that appears in the record, whether or not that ground was relied upon or

even considered by the court below.”).

      Although the Due Process Clause of the Fourteenth Amendment requires a

hearing before a public employee with a property right in her continued

employment is terminated, the hearing “need not be elaborate” and “need not

definitively resolve the propriety of the discharge.” Loudermill, 470 U.S. at 545.

The hearing “should be an initial check against mistaken decisions — essentially, a

determination of whether there are reasonable grounds to believe that the charges

against the employee are true and support the proposed action.” Id. at 545–46.

The “employee is entitled to oral or written notice of the charges against him, an

explanation of the employer’s evidence, and an opportunity to present his side of

the story.” Id. at 546. “To require more than this prior to termination would

intrude to an unwarranted extent on the government’s interest in quickly removing

an unsatisfactory employee.” Id.




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       Pearson received at least that much process before her demotion. 5 She was

demoted in May 2012. As early as March 2012 she knew that Shanahan was

investigating her December 2011 use of comp time. Around that time, Shanahan

met with her and gave her the opportunity to explain her comp time use. She also

knew that the investigators were looking at her payroll binder to see if she had

falsified her timecards. And she knew that falsifying a timecard could warrant

discipline up to and including termination. In April 2012, one month before her

demotion, Pearson was given the opportunity to submit a written statement about

her December 2011 use of comp time, and she took advantage of that opportunity.

Taken together, all of this means Pearson knew she was being investigated for an

infraction that could result in her demotion, and she had a chance to respond to the

accusations verbally and in writing and did so.

       As for her termination in February 2013, Pearson also received all the

process she was due under Loudermill before that happened. At the time of the

termination, she had been on leave since May 2012 because of her back injury. On

February 7, 2013, Pearson met with two human resources employees to discuss her

leave status. They gave her a letter from Mike Blanchard, who had replaced

Shanahan as the City’s interim human resources director. The letter informed


       5
         Even though Loudermill addressed only the process required before termination, we
have applied Loudermill’s pre-deprivation due process requirements to demotions. See Hatcher
v. Bd. of Pub. Educ., 809 F.2d 1546, 1553 (11th Cir. 1987).


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Pearson that as of January 30, 2013, she had exhausted all available leave. It

warned her that because she was “not eligible for any leave status for a continued

absence,” the City would “separate [her] from service” if she could not return to

work by February 13, 2013. Pearson told those human resources employees that

her doctor had not cleared her to return to work and that her next appointment was

not until March 8, 2013, which was three weeks after the back-to-work deadline.

       She met with the human resources employees again on February 13, 2013.

Because she still had not been cleared to return to work, they told her that she

would have to retire. They gave her one more week for her doctor to clear her to

work, but the doctor didn’t. As a result, Pearson’s employment with the City was

terminated.

       Before she lost her job, Pearson had received written notice of the reason

why the City was contemplating terminating her employment and an explanation

of the City’s supporting evidence. She also had been given more than one

“opportunity to present h[er] side of the story” to the two human resources

employees, Loudermill, 470 U.S. at 546, and she was given time to secure a

medical clearance from her doctor. That is all the pre-termination process required

under Loudermill.6 See id.


       6
        Pearson also argues that the district court erroneously denied her untimely motion to
amend her complaint to add state law due process claims. The district court denied that motion
because Pearson had not shown good cause for filing it late and because the amendment would


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    B. Title VII and § 1983 Sex Discrimination Claims Based on the Demotion

       Pearson contends that she was demoted because of sex discrimination, in

violation of both Title VII and (by way of § 1983) the Equal Protection Clause of

the Fourteenth Amendment.7 Her Title VII and § 1983 claims are based on the

same allegations. We can analyze those claims together because “the analysis of

disparate treatment claims under § 1983 is identical to the analysis under Title VII

where the facts on which the claims rely are the same.” Crawford v. Carroll, 529

F.3d 961, 970 (11th Cir. 2008).

       Under the McDonnell Douglas framework, a plaintiff alleging a Title VII or

§ 1983 discrimination claim must first establish a prima facie case of

discrimination, showing: “(1) that she belongs to a protected class, (2) that she was

subjected to an adverse employment action, (3) that she was qualified to perform

the job in question, and (4) that her employer treated ‘similarly situated’ employees

outside her class more favorably.” Lewis v. City of Union City, 918 F.3d 1213,

1220–21 (11th Cir. 2019) (en banc).

       “If the plaintiff succeeds in making out a prima facie case, the burden shifts

to the defendant to articulate a legitimate, nondiscriminatory reason for its


have been futile. That was not an abuse of discretion. See Smith v. Sch. Bd. of Orange Cty.,
487 F.3d 1361, 1366–67 (11th Cir. 2018).
       7
         Pearson brought her equal protection claims against Augusta, Shanahan in his
individual capacity, and Russell in his individual capacity. She brought her Title VII claims
against Augusta only.


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actions.” Id. at 1221. If the defendants do so, Pearson “must then demonstrate that

the defendant[s’] proffered reason was merely a pretext for unlawful

discrimination, an obligation that merges with the [plaintiff’s] ultimate burden of

persuading the [factfinder] that she has been the victim of intentional

discrimination.” Id. (first alteration added) (quotation marks omitted).

      The parties agree that Pearson satisfied the first three prongs of the prima

facie case: she is a woman, she was demoted, and she was qualified to do her job.

But they disagree about whether Pearson satisfied the fourth prong by identifying a

comparator who was sufficiently similarly situated to her who was treated

differently.

      “[A] plaintiff must show that she and her comparators are similarly situated

in all material respects.” Id. at 1224 (quotation marks omitted). A similarly

situated comparator:

               • will have engaged in the same basic conduct (or
                 misconduct) as the plaintiff;
               • will have been subject to the same employment policy,
                 guideline, or rule as the plaintiff;
               • will ordinarily (although not invariably) have been
                 under the jurisdiction of the same supervisor as the
                 plaintiff; and
               • will share the plaintiff’s employment or disciplinary
                 history.

Id. at 1227–28 (footnote and citations omitted).




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       Pearson identifies five men as potential comparators for her sex

discrimination claims: Donnell Conley, Chris Scheuer, Ron Houck, Christopher

Yount, and Sam Smith. Four of those men, Scheuer, Conley, Yount, and Houck,

were “subject to the same employment policy, guideline, or rule as” Pearson and

were “under the jurisdiction of the same supervisor” as Pearson.8 Id. at 1227–28.

They were all managers and all exempt employees under the Fair Labor Standards

Act, meaning that according to the City handbook they were not entitled to accrue

or use comp time.

       The question is, therefore, whether Pearson showed that any of those four

men engaged in the same basic misconduct as she did: accruing comp time as an

exempt employee and using it by marking their timecards to show that they were

working when they weren’t. Pearson submitted evidence, in the form of deposition

testimony and declarations, that those four men used comp time even though they

were exempt employees. And Shanahan would have known that at least some of

the men were using comp time as exempt employees because one of them,

Scheuer, admitted doing so. His admission came during an interview that the

human resources manager conducted as part of the investigation into Pearson’s use


       8
          Smith is clearly not an appropriate comparator. Pearson argues that he is because he
wrote on an employee’s timecard that the employee was using sick leave when he did not show
up for work, even though Smith did not know whether that employee was actually sick. She also
asserts that Smith drove around in his car while on the clock. But neither of those alleged
offenses is the same basic conduct as Pearson’s use of comp time without reporting it on her
timecard, which makes him an inappropriate comparator. See Lewis, 918 F.3d at 1227.


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of comp time, and as acting director of human resources Shanahan would have

reviewed the investigation interview notes. And Shanahan would have known that

because human resources did not track comp time for exempt employees, Scheuer

could not have taken comp time without falsifying his timecard in the same manner

Pearson did. There was also direct evidence in the record that Yount had falsified

a timecard in the same manner that Pearson did; there were three falsified

timecards from Yount.

      Pearson has, therefore, established that Scheuer, Conley, Yount, and Houck

were “similarly situated in all material respects,” id. at 1224, and the burden shifts

to the defendants “to articulate a legitimate, nondiscriminatory reason for its

actions,” id. at 1221. The defendants, in their brief, claim that Pearson was

demoted because she “knew that she was not eligible for comp time as an exempt

employee and . . . she engaged in a process which resulted in falsified timecards in

direct violation of [City] policy.” But that cannot be a legitimate, non-

discriminatory reason for Pearson’s termination if, as her evidence shows, it is

exactly what the comparators did.

      Not only that, but Pearson has submitted other evidence of pretext. That

evidence included her testimony and a letter that showed she had been told in 1999

that she could use comp time even though she was an exempt employee. And she

presented evidence that when she attempted to use her comp time before she took



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catastrophic leave, she was told that the parks and recreation department was

“going to have to hold [her] time of comp until [she] returned.” The implication of

that evidence, which we must credit at this stage of the proceedings, is that the use

of comp time was permitted –– otherwise, why would the department hold it for

her?

       Taken together and viewed in the light most favorable to Pearson, with this

evidence Pearson has raised a genuine issue of material fact as to whether the

defendants’ articulated reason for demoting her was pretextual. The defendants

should not have been granted summary judgment on her Title VII and § 1983 sex

discrimination claims. 9

                       III. TRIAL RULINGS AND JUDGMENT

       Pearson’s Title VII retaliatory termination claim went to trial. She

challenges two of the district court’s evidentiary rulings during trial and the

judgment as a matter of law it entered. First, she contends that the district court

abused its discretion by excluding all evidence from before October 23, 2012 as

not relevant to whether the defendants had retaliated against Pearson for filing the



       9
         Pearson also makes a mixed-motive argument, see Quigg v. Thomas Cty. Sch. Dist.,
814 F.3d 1227, 1235, 1239 (11th Cir. 2016), and a mosaic theory argument, see Smith v.
Lockheed–Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011), for her Title VII sex
discrimination claim. Because we find that a genuine issue of material fact exists about whether
the City discriminatorily demoted her under the McDonald Douglas framework, we need not
consider those other arguments.



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EEOC charge on that date. Second, she challenges the court’s exclusion of a

December 2012 email from Shanahan that Pearson tried to put into evidence

during the trial. Finally, Pearson contends that the district court erred by granting

the defendants judgment as a matter of law after her close of evidence. We

consider each contention in turn.

               A. Exclusion Of The Pre-October 23, 2012 Evidence

      The sole claim that made it to trial was that Pearson was terminated in

retaliation for filing the October 23, 2013 EEOC charge. The court excluded as

irrelevant evidence about anything that occurred before she filled out a

questionnaire on October 23, 2012 prefatory to filing the EEOC charge. The

parties and the district court treated that date as the beginning of her protected

conduct, and so will we. The court excluded evidence of any conduct by the

defendants before that date because it could not have been evidence of retaliation

for protected conduct that had not yet happened.

      We review that evidentiary ruling only for an abuse of discretion. Cook ex

rel. Estate of Tessier v. Sheriff of Monroe Cty., 402 F.3d 1092, 1103 (11th Cir.

2005). We will not reverse a district court’s decision to exclude evidence “unless

the ruling is manifestly erroneous.” Toole v. Baxter Healthcare Corp., 235 F.3d

1307, 1312 (11th Cir. 2000) (quoting Gen. Elec. v. Joiner, 522 U.S. 136, 142

(1997)). And even if the decision is manifestly erroneous, we will not reverse if



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the error was harmless. United States v. Langford, 647 F.3d 1309, 1323 (11th Cir.

2011).

         According to Pearson, the district court erred by ruling any and all pre-

October 23 evidence per se irrelevant instead of considering each piece of

proffered evidence individually to determine its relevance. We disagree.

“Evidence is relevant if: (a) it has any tendency to make a fact more or less

probable than it would be without the evidence; and (b) the fact is of consequence

in determining the action.” Fed. R. Evid. 401.

      The alleged events or conduct that occurred before October 23, 2012 that

Pearson argues were relevant to the question of whether Shanahan had a retaliatory

intent when he fired her, include:

      Shanahan’s August 2012 false accusation of worker’s compensation
      fraud against Pearson, Shanahan’s July 2012 false accusation against
      Pearson of losing a radio, Shanahan’s May 2012 leak of Pearson’s
      personnel records to the media, Shanahan’s prior retaliation and leak of
      information in 2010 when employed by the city of St. Mary’s,
      Shanahan’s manipulation of the H.R. process to get Sam [Smith] to
      replace Pearson as manager after her demotion, and the retaliatory
      hostile work environment suffered by Pearson . . . .

None of that evidence has any tendency to make it more probable that Shanahan

retaliated against Pearson based on her October 2012 EEOC activities and filings,

instead of for some other reason, because all of that evidence relates to incidents

that occurred before she did the first protected act. See Fed. R. Evid. 401.




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      Pearson’s evidence of pre-October 23, 2012 events and conduct actually

tends to prove the lack of a retaliatory motive stemming from her protected

conduct on and after that date. It shows that Shanahan had taken adverse actions

against Pearson before she took the first step to filing the EEOC charge. Which

tends to show there were other motives behind her termination. No matter how

bad the motive for terminating Pearson may have been, if it was not in retaliation

for her protected conduct in connection with the EEOC charge, it is not relevant ––

at least not in a direction that helps Pearson. If anything, the evidence would have

harmed Pearson’s retaliation case, which means that any error in excluding it

would have been harmless to her. The district court did not abuse its discretion in

excluding evidence of pre-October 23, 2012 conduct against Pearson.

                B. Exclusion Of Shanahan’s December 2012 Email

      Pearson contended at trial that Shanahan was the decisionmaker and there

was evidence he knew about her EEOC claim before he fired her. The defendants

contended that Mike Blanchard, who became human resources director after

Shanahan, was the actual decisionmaker, and that Pearson submitted no evidence

that Blanchard knew about her EEOC claim before he fired her.

      The district court denied Pearson’s motion to admit an email from Shanahan

to a City human resources employee. She contends that email would have shown

that Shanahan, not Blanchard, was the decisionmaker. Pearson offered the email



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as a business record under Federal Rule of Evidence 803(6) during the testimony

of Starina Styles, who was the human resources employee who allegedly received

the email, but Styles did not recognize it. The defendants objected to the

admission of the email due to lack of foundation, and the trial court sustained the

objection.

       “The touchstone of admissibility under the business records exception to the

hearsay rule is reliability, and a trial judge has broad discretion to determine the

admissibility of such evidence.” United States v. Bueno-Sierra, 99 F.3d 375, 378

(11th Cir. 1996). A document is admissible as a business record under Rule 803(6)

if it was “made at or near the time by — or from information transmitted by —

someone with knowledge[,] . . . [and] kept in the course of a regularly conducted

activity of a business,” and if it was the “regular practice” of the business to make

that record. Fed. R. Evid. 803(6)(A)–(C). The party submitting the evidence must

lay the foundation that those elements have been met, which requires “the

testimony of the custodian or another qualified witness.” Id.; accord City of

Tuscaloosa v. Harcros Chems., 158 F.3d 548, 559 n.12 (11th Cir. 1998). The only

person Pearson called for that purpose was Styles. Because she did not remember

or recognize the email, Styles was not a sufficient “custodian” or other “qualified

witness” under Rule 803(6). Pearson failed to lay the proper foundation for




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admission of the email, so the district court did not abuse its discretion in

sustaining the defendants’ objection to it.

       Pearson contends that even though she didn’t lay the proper foundation, the

email should have been admitted. She points to a pretrial order saying that

“[i]tems not objected to will be admitted when tendered at trial,” notes that the

email was listed in that order, and notes that the defendants did not object to it

being included in the order. 10 Based on that, Pearson argues that the defendants

should not have been able to object to the admission of the email at trial.

       Pearson provides no authority for the proposition that boilerplate language in

a pretrial order relieves her of the burden of laying a foundation for evidence as

required by Rule 803(6). The only authority that she cites for the proposition that

the evidence should have been admitted is a not-entirely-on-point, unpublished

district court opinion from the Southern District of Indiana. That decision, of

course, is utterly non-binding on us. See United States v. Johnson, 921 F.3d 991,

999 (11th Cir. 2019) (“Nor can we overlook that the opinion of a district court is

not precedential.”). We are not convinced that the language in the pretrial order

compelled the trial court to accept into evidence everything that was listed,




       10
          Pearson also claims that Styles should have been able to refresh her recollection before
answering whether she recognized the email. But Styles was holding and reading the email
when she stated that she did not recognize it. It is unclear what more could have been done to
refresh Styles’ recollection.


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regardless of the Federal Rules of Evidence. 11 Again, the court did not abuse its

discretion. 12

                            C. Judgment As A Matter Of Law

       Finally, Pearson contends that the district court erred by granting the

defendants judgment as a matter of law, a ruling which we review de novo.

Wilcox v. Corr. Corp. of Am., 892 F.3d 1283, 1286 (11th Cir. 2018). In doing so,

“[w]e view the evidence and draw all reasonable inferences in [Pearson’s] favor,

and we may affirm only if we conclude that a reasonable jury would not have a

legally sufficient evidentiary basis to find for her.” Id. (citations and quotation

marks omitted).

       “To make out a prima facie case of retaliation, a plaintiff must show: (1) that

she engaged in an activity protected under Title VII; (2) she suffered a materially

adverse action; and (3) there was a causal connection between the protected

activity and the adverse action.” Kidd v. Mando Am. Corp., 731 F.3d 1196, 1211



       11
           Pearson also makes two other cursory arguments for allowing the email in as evidence.
First, she argues that under Federal Rule of Evidence 1003(a) the defendants failed to raise a
genuine issue of authenticity, so a “duplicate [was] admissible.” But the evidence was excluded
for lack of foundation under Rule 803(6), not because it was a duplicate. Second, Pearson argues
that under Federal Rule of Evidence 1008(b) the question of “genuineness” is a question for the
jury. But the evidence was excluded for lack of foundation, which is firmly within the province
of the court. United States v. Arias-Izquierdo, 449 F.3d 1168, 1183 (11th Cir. 2006).
       12
          The evidence excluded under these rulings is the subject of a motion Pearson filed in
this Court to supplement the record on appeal. Because the district court did not abuse its
discretion in excluding the evidence, the motion is DENIED AS MOOT.



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(11th Cir. 2013). “To establish a causal connection, a plaintiff must show that the

decision-makers were aware of the protected conduct, and that the protected

activity and the adverse actions were not wholly unrelated.” Shannon v. Bellsouth

Telecomms., Inc., 292 F.3d 712, 716 (11th Cir. 2002) (quotation marks omitted).

Once the plaintiff makes out a prima facie case of retaliation the burden shifts to

the defendant to show a legitimate reason for the adverse action. Id. at 715. Then

the burden shifts back to the plaintiff to establish that the proffered legitimate

reason was pretextual. Id.

      The district court based its judgment for the defendants on two grounds.

First, it found that Pearson had failed to establish a causal link between the

protected activity (filing an EEOC charge) and the materially adverse action

(termination). Second, it found that she failed to rebut the legitimate reason

provided by the defendants for her termination — that she could not return to work

and had no additional leave.

      Pearson contends that the evidence at trial showed that Shanahan was the

person who decided to terminate her employment, he was aware of her EEOC

activities including filing a charge, and the purported reason for her termination

was pretextual. We disagree.

      Viewed in the light most favorable to Pearson, the evidence at trial

established the following. She suffered a work-related back injury in May 2012.



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Because of that injury, she was out of work on approved medical leave beginning

on May 31, 2012. She was out on leave for eight months until mid-February 2013.

While on medical leave, she filed an EEOC charge in October 2012. Shanahan

became aware of the EEOC charge sometime that fall.

      In December 2012 Pearson’s doctor wrote a note to the City saying that she

would have to remain out of work until further notice and that he would update the

City about her ability to return to work in March 2013. Under the City’s policy,

the only leave she had left to take was leave without pay. To qualify for it, she had

to get the approval of her department director, of the human resources director, and

of the city administrator. To get their approval for leave without pay, she had to

show either that she was applying for long-term disability or that the doctor could

confirm she would be able to return to work within six months. Pearson showed

neither.

      Her application for leave was approved by the director of the recreation

department, Shanahan. But it was not approved by the head of the HR department

at that time, Mike Blanchard. Instead, an HR department employee put a sticky

note on the bottom corner of Pearson’s final leave application that said “DENY +

SEND FFD LETTER AFTER XMAS” (FFD meaning fit for duty). Blanchard

later drafted a letter to Pearson explaining that she was “ineligible for any

additional leave of absence” because she had “exhausted any eligible FMLA leave,



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accrued sick and vacation leave, and the unpaid leave of absence granted” to her.

The letter also warned that “if you are unable to return to work by February 13,

2013, we must regrettably separate you from service with Augusta, Georgia.” She

received that letter when she met with human resources on February 7.

       There was some confusion about the precise date of Pearson’s termination.

As a result, three Requests for Personnel Action (RPA) were created for Pearson,

all with different dates. 13 Each RPA was requested by human resources and signed

by Shanahan as the parks and recreation department director.

       On February 6, 2012, the day he signed the first RPA, Shanahan told a group

of City employees that Pearson had been “terminated” and “doesn’t work here

anymore.” The next day Shanahan told a parks and recreation employee that

Pearson “don’t [sic] work here anymore. She’s terminated.”




       13
          Pearson was first marked in the system as resigning. Human resources requested that
the Request for Personnel Action (RPA) be dated February 13, 2013, but there was an error and
the parks and recreation department dated it February 1. Pearson was granted a one-week
extension to get a doctor’s note, so human resources requested a new RPA with a termination
date of February 20; it received a new RPA with a February 15 termination date. Finally, human
resources requested a third RPA, reflecting retirement instead of resignation (human resources
did not specify the effective date, and the parks and recreation department dated it February 18).

       Pearson testified during her deposition that the human resources employees she met with
discovered on February 13, 2013 that she was listed as retired (and thus terminated) in the City’s
system as of February 1, 2013. At trial the human resources representative testified that
Pearson’s “termination date” was January 31st and her “retirement date” was an unknown date in
February.



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      Pearson contends that the evidence at trial shows that it was Shanahan who

made the decision to terminate her employment. But she points only to

Shanahan’s approval of the RPA on February 6, 2012, and his statements that day

and the next that she had been terminated. She ignores the evidence about what

led up to that RPA. It was Blanchard, not Shanahan, who denied Pearson’s request

for leave from January 3 until March 8, 2013, a request Shanahan had approved. It

was Blanchard, not Shanahan, who drafted the January 30, 2013 letter informing

Pearson that her employment would be terminated if she could not return to work

by February 13, 2013. And it was Blanchard’s, not Shanahan’s, department of

human resources that requested the RPAs.

      The trial evidence shows that Blanchard, not Shanahan, made the decision to

terminate Pearson, and Pearson presented no evidence that Blanchard was aware of

her EEOC charge. As a result, she failed to establish the causation element of her

Title VII retaliation claim. “[A] reasonable jury would not have a legally sufficient

evidentiary basis to find for her.” Wilcox, 892 F.3d at 1286 (citations and

quotation marks omitted). The district court properly granted judgment as a matter

of law to the defendants.

                                IV. CONCLUSION

      The district court erred in granting summary judgment to the defendants on

Pearson’s § 1983 equal protection and Title VII sex discrimination claims, both of



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which alleged that her demotion was based on her sex. The court did not err in any

of the other decisions that Pearson appeals.

      The judgment of the district court is AFFIRMED in part, REVERSED in

part, and REMANDED for a new trial on the section 1983 equal protection and

Title VII sex discrimination claims.




                                         33
