              Case: 15-11265      Date Filed: 12/22/2015   Page: 1 of 24


                                                               [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                    No. 15-11265
                                Non-Argument Calendar
                              ________________________

                        D.C. Docket No. 1:13-cv-00873-SCJ



LILLIANNA A. STEVENS,

                                                                  Plaintiff-Appellant,

                                        versus

CITY OF FOREST PARK, GEORGIA,
DWAYNE HOBBS,
in his individual capacity,

                                                              Defendants-Appellees,

JOHN PARKER
in his individual capacity,

                                                                           Defendant.

                              ________________________

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

                                 (December 22, 2015)
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Before HULL, WILLIAM PRYOR and FAY, Circuit Judges.

PER CURIAM:

       Plaintiff Lillianna Stevens is a Hispanic female and a former police captain

who filed this suit against her former employer, the City of Forest Park, and

Dwayne Hobbs, Chief of Police (collectively, “defendants”) under Title VII of the

Civil Rights Act of 1964, the Equal Protection Clause of the Fourteenth

Amendment and 42 U.S.C. § 1983.1 Captain Stevens alleged that defendants

discriminated against her based on her race and gender when Chief Hobbs issued

her a Last Chance Agreement and the City later terminated her employment in

September 2012.

       Following discovery, defendants moved for summary judgment, arguing that

they had terminated Stevens for failing to meet Chief Hobbs’s reasonable

expectations of her as a police captain. Specifically, Stevens (1) had engaged in

inappropriate sexual conduct and used racial language in the workplace; (2) had a

pattern of inappropriate conflicts with officers; and (3) had attempted to

inappropriately influence an accident review panel. The magistrate judge

recommended that the district court grant summary judgment to defendants, and

the district court did so, adopting the magistrate judge’s report and

recommendation.

       1
         Stevens also named City Manager John Parker, in his individual capacity, as a defendant
in this action. However, Parker was dismissed in October 2013 by stipulation of the parties.
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       Captain Stevens appeals, arguing that defendants’ proffered legitimate

reasons for their decisions were pretexts for discrimination. After review of the

record and the parties’ briefs, we affirm.

                            I. FACTUAL BACKGROUND

       In 1992 plaintiff Captain Stevens joined the Forest Park Police Department

and she was a captain when her employment ended in 2012. As captain, Stevens

reported to Major Chris Matson, who ultimately reported to defendant Chief Hobbs.

During her employment, Stevens was counseled and disciplined on several

occasions for her conduct, language, and inability to get along with people.

       Chief Hobbs is the Department’s highest ranking member and is responsible

for final recommendations to City Manager Parker concerning an employee’s

termination.2

A.     Olascoaga Accident

       The incident that directly precipitated plaintiff Captain Stevens’s termination

arose from a motor vehicle accident involving Officer Richie Olascoaga, one of

Stevens’s subordinates. On August 9, 2012, as Olascoaga was backing his patrol

car into a spot between two buildings, he ran over another car’s bumper lying on




       2
        Technically, City Manager Parker made the decision to fire plaintiff; however, the
record (construed in Stevens’ favor) indicates that Chief Hobbs’s recommendation to Parker
drove that decision. Thus, we focus on Chief Hobbs’s conduct.
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the ground. The bumper was three-to-four feet long, five-to-six inches wide and

three-to-four inches high. The bumper flipped up and scratched the patrol car. 3

       Sergeant David Eads was Olascoaga’s supervisor. When accidents occur,

supervisors investigate and report to the watch commander (or deputy watch

commander) on duty, who then assembles an “accident review packet” to help

determine whether the accident is chargeable to the officer. The review packet

usually includes accident report forms, a statement of the officer involved, and

pictures of the accident. This review packet is given to the watch commander for

the next shift or to the Criminal Investigations Division (“CID”). A panel of three

officers independently reviews and assesses whether the accident is chargeable to

the officer involved. If the panel finds the accident is chargeable, disciplinary

action may be taken against the officer.

       According to Captain Stevens, despite the above process, review panels still

often decide whether an accident is chargeable based solely on a verbal description

of the accident and without a complete accident review packet. Stevens stresses

that no written protocol specifies how the Department conducts accident reviews

like the one that followed Olascoaga’s accident.

       Following Officer Olascoaga’s accident, Sergeant Eads responded to the

scene to complete an accident report and take photographs. Eads sent a picture of

       3
       Upon reviewing photos of the accident, one witness in this case (Sergeant Terrell
Cochran) testified that the object could technically be described as “the majority of [a] bumper.”
                                                4
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the damage to the patrol car via text message to Lieutenant Jason Armstrong,4 who

notified Captain Stevens (the watch commander on duty) about the accident 10 to

15 minutes after it occurred.

      Officer Olascoaga returned to the station and told Captain Stevens what had

happened, and Stevens looked at the text picture of the damage to the vehicle.

Stevens concluded that the accident was non-chargeable because Officer

Olascoaga had not intended to hit the “piece of metal” and the accident was not

preventable. Stevens did not inspect the vehicle or the “piece of metal” or review

full-size photographs of the accident before reaching her conclusion.

      Captain Stevens contacted Lieutenant James Delk of the CID unit to

participate in the accident review panel, telling him that an officer had run over a

“piece of metal” that flipped up and hit his vehicle and the accident was non-

chargeable. Delk intimated that he did not want to conduct an accident review

until all the necessary paperwork was completed.

      Captain Stevens then approached Sergeant Terrell Cochran, Sergeant

Raymond Daniel, and Patrol Officer Walter Randall to serve on the accident

review panel. Stevens told Sergeant Cochran that Olascoaga had hit a “little piece

of metal” and that the accident was non-chargeable. When Cochran asked what

exactly was hit, Stevens responded that Olascoaga had hit a piece of metal “like a


      4
          Armstrong is now a captain, but was a Lieutenant at all periods relevant to this case.
                                                  5
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bumper” that was lying on the ground. According to Cochran, Stevens related this

information loudly and “very fast.”

       Captain Stevens told Sergeant Daniel that Olascoaga hit an object, causing it

to scratch his vehicle and the accident was non-chargeable. Stevens told Officer

Randall that an officer had struck a “small metal item” while backing up his

vehicle, resulting in a small scratch, and the accident was non-chargeable. Stevens

did not provide any officers with photographs or any supporting documents. Based

solely on Stevens’s description of the accident, each officer signed the review

panel’s form determining the accident was non-chargeable. 5

       On the accident review form, Captain Stevens too indicated that she found

the accident was non-chargeable. Stevens then asked Lieutenant Armstrong, her

subordinate, to serve as a secondary reviewer. Armstrong then examined the

documents in the review packet and the one text from Sergeant Eads. Armstrong

found the accident was non-chargeable. 6


       5
         According to an August 13, 2012 note by Major Jamie Reynolds, Cochran reported
feeling “intimidated” by Captain Stevens. However, it is unclear whether Chief Hobbs saw this
note before deciding to present Stevens with the original or amended Last Chance Agreement.
On August 27, 2012, Chief Hobbs responded to the note and inquired into Randall’s reason for
signing the form; on September 7, 2012, Randall responded that while he relied on the
information provided by Captain Stevens (whom Randall stated could be “pushy”), he did not
feel intimidated. In his deposition, Hobbs recalled that, at the time that he disciplined Stevens,
he was aware that Randall had not felt intimidated by Stevens when she approached him about
Olascoaga’s accident.
       6
         Armstrong later stated that while he felt the chargeability determination could “go either
way,” he found the accident non-chargeable because Stevens and the three accident review panel
officers had made this finding. It is not clear from the record what documentation was in the
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       At approximately 4:00 pm, Major Matson asked Captain Stevens why he

had not yet received the accident review packet, and Stevens responded that it was

not yet complete. Shortly thereafter, Stevens delivered the packet to Matson

without all of the photographs. Matson returned the packet to Stevens and asked

where the remaining photographs were. Aside from the text photo, Sergeant Eads

apparently had not yet transmitted the photos he took at the scene. After the other

photographs were retrieved and downloaded, Matson reviewed them and

concluded that the accident was avoidable and therefore chargeable. To Matson,

the photographs showed that Olascoaga had backed over a car’s bumper.

       Major Matson returned the accident review packet to Lieutenant Armstrong,

telling him that he and Captain Stevens should review the accident photographs

and seriously rethink their conclusion. Armstrong understood Matson to be saying

that the accident was chargeable and that Armstrong and Stevens should change

their findings. Armstrong shared this understanding with Stevens. 7 Stevens

responded that she was not going to change her non-chargeable decision.

Armstrong likewise did not change his finding, later testifying that he did not want

to contradict Stevens because he did not feel that he could change her mind. When



packet at the time that Armstrong reviewed it aside from the form signed by Stevens and the
panel officers.
       7
         In her opening brief, Captain Stevens concedes that Matson told Armstrong that they had
“made a serious error in judgment” and that they needed to “rethink whether [they] want[ed] to
stand by [their] position or not,” and states that Armstrong communicated this to Stevens.
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Major Matson discovered that the officers had not changed their findings, Matson

wrote at the bottom of the accident review form that he did “not concur with the

assessment of this accident” because “[s]triking a stationary visible object is a

chargeable accident.”

       Major Matson then spoke with the three officers on the panel, who reported

that they had not been given pictures or documentation of the accident to review

but rather had based their determination solely on Captain Stevens’s verbal

representations regarding the accident. Matson subsequently had a second panel of

three officers review the accident review packet (including the photographs). 8 This

panel unanimously concluded that Olascoaga’s accident was chargeable.

       The original panel members, Cochran, Randall and Daniel, received a light

form of disciplinary counseling for making findings without reviewing pictures or

documentation concerning the accident.9 Armstrong did not receive any discipline

for his role in the investigation.

       Based on Captain Stevens’s prior disciplinary history, Major Matson met

with Chief Hobbs to determine what discipline Stevens would receive for her

conduct in the accident investigation. While Major Matson initially proposed to


       8
          Matson testified that a Captain Skwira assembled the second panel, and he gave no
indication to Captain Skwira that a prior accident review was conducted.
        9
          According to Matson, both Cochran and Randall were surprised when Matson showed
them the photographs of the accident. Chief Hobbs testified in his deposition that two officers
reconsidered their positions. Sergeant Cochran testified that the accident should have been found
chargeable.
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Chief Hobbs that Stevens be terminated, Hobbs ultimately decided to issue her a

“Last Chance Agreement.” A Last Chance Agreements is the most severe sanction

that a Forest Park Police Department employee can receive aside from immediate

termination.

      On August 13, 2012, Major Matson met with Captain Stevens to present the

proposed Agreement. The Agreement (1) placed Stevens on probation for 12

months and disqualified her from receiving pay increases, special assignments, or

promotional opportunities; (2) revoked Stevens’s part-time employment privileges

until there was a “marked improvement in [her] behavior”; (3) required Stevens to

“maintain a personal life that coincides with departmental policy and the Law

Enforcement Code of Ethics”; (4) exposed Stevens to immediate termination for

any future violation of any rule or regulation for the following 12 months; and

(5) required Stevens to waive any right to appeal a subsequent decision to

terminate her employment. The Agreement stated that Stevens’s rejection of any

of its terms would result in her immediate termination. According to Stevens, the

Agreement was on pink paper and Matson condescendingly told her that he

“thought that [she] would like the pink paper, since [she’s] a girl and that’s [her]

favorite color.”

      Captain Stevens refused to sign the Agreement and left the meeting. Chief

Hobbs met with Stevens in an unsuccessful attempt to get her to sign the

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Agreement. Hobbs then gave Stevens additional time to think and made revisions

to the Agreement.10

       The revised Agreement summarized the basis for the disciplinary action and

emphasized that Captain Stevens had attempted to improperly influence the first

accident review panel. The revised Agreement stated that the three officers on the

first accident review panel described Stevens as “fast talking,” “coercive” and

“intimidating.” The Agreement stated that Stevens presented a “pre-ordained

conclusion that the accident was non-chargeable” and led the panel to “blindly

sign[] the report.” The Agreement also (1) stated that Stevens was “insensitive to

the inherently intimidating impact that [her] rank may have on [her] subordinates

and coworkers”; (2) cited Stevens’s poor judgment in believing that the accident

was non-chargeable; (3) criticized Stevens’s failure to reconsider her decision after

Matson suggested she do so; and (4) cited Stevens’s unique disciplinary history,

emphasizing several specific prior incidents.

       The revised Agreement placed Captain Stevens on probation for 12 months,

and required Stevens to agree to immediate termination if she acted in any way that

was “overbearing” or “domineering” or that required “more than informal


       10
        The record is unclear, and the parties disagree, about when Chief Hobbs revised the
Agreement. Captain Stevens claims that she was presented with both the original and revised
Agreement on August 13; both versions of the Agreement are indeed dated August 13.
Defendants argue that the Agreement was substantially rewritten following Hobbs’s lengthy
meeting with Stevens and a discussion with her counsel on August 14, consistent with Matson’s
and Hobbs’s testimony. We find this fact dispute immaterial to our analysis.
                                              10
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counseling.” As before, the Agreement required Stevens to waive any right to

appeal a subsequent termination decision.

      Captain Stevens refused to sign the revised Agreement. Chief Hobbs

recommended her termination to City Manager Parker, who signed off on Hobbs’s

recommendation, making Stevens’s termination effective September 7, 2012.

Lieutenant Armstrong was subsequently promoted to Acting Captain. Stevens

exercised her right to appeal. On October 22, 2012, the day of her hearing, Stevens

asked that she be allowed to resign. The City agreed, and she withdrew her appeal.

B.    Prior Disciplinary Incidents Referenced in Last Chance Agreement

      Because three prior incidents were recounted in the Last Chance Agreement

and thus played a role in plaintiff Captain Stevens’s ultimate termination, it serves

to briefly summarize them.

      First, in April 2010, Stevens was counseled for leaving her team without

supervision at “quitting time.”

      Second, on February 23, 2012, Stevens was counseled and disciplined for an

incident involving a Georgia Bureau of Investigation (“GBI”) officer. The GBI

officer was conducting a reference check of a former Forest Park police officer.

Stevens advised the GBI officer that the former Forest Park officer had once

attempted to grab her chest in an apparently sexual manner. Stevens had never

before reported this incident while the former officer was employed by Forest Park.

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Stevens was disciplined on the grounds that she had violated Chief Hobbs’s

General Order #31, which states: (1) that it is Departmental policy to provide

accurate and truthful information about former employees to outside parties and (2)

that only the Chief (or a person he authorizes) may disclose such information to

outside parties.

       Third, also in February 2012, Stevens filed a complaint against Captain

Mark Harris (a white male) and Lieutenant Amy Hiers (a white female). Stevens

alleged that she was repeatedly “attacked” by them and was scared to work with

them. Major Matson, who reviewed the complaint, found it to be disjointed and

confusing. The Department investigated and ultimately reprimanded Stevens for

her own role in the conflict between the officers and her inappropriate behavior

towards Lieutenant Hiers. 11

       The accident review incident, outlined above, occurred in August 2012.



                            II. STANDARD OF REVIEW

       We review de novo the district court’s grant of summary judgment,

construing the evidence and drawing all reasonable inferences in the light most

favorable to the nonmoving party. Baloco v. Drummond Co., Inc., 767 F.3d 1229,

1246 (11th Cir. 2014). Summary judgment is appropriate only when “there is no

       11
         According to Matson, Captain Stevens exhibited erratic behavior during their meeting
to discuss the complaint. Stevens denies this, and thus we do not consider that contention.
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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 mere scintilla of evidence supporting the

nonmoving party’s position is insufficient to defeat a motion for summary

judgment; there must be sufficient evidence for a reasonable jury to find in her

favor. Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009).

                     III. GENERAL LEGAL PRINCIPLES

      Discrimination claims arising under Title VII, § 1983 and the Equal

Protection Clause are analyzed under the same analytical framework. See Bryant

v. Jones, 575 F.3d 1281, 1296 n.20 (11th Cir. 2009); Koch v. Rugg, 221 F.3d 1283,

1297 n.31 (11th Cir. 2000). Plaintiff Captain Stevens does not dispute that the

McDonnell Douglas framework applies to her discrimination case based on

circumstantial evidence.

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

employment discrimination. See Flowers v. Troup Cty., Ga., Sch. Dist., 803 F.3d

1327, 1336 (11th Cir. 2015). To do this, she must show that: (1) she is a member

of the protected class; (2) she was qualified to do the job; (3) she was subject to an

adverse employment action; and (4) either she was replaced by someone outside

her protected class or she received less favorable treatment than a similarly-

situated employee outside of her protected class. Id.




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      If the plaintiff makes this showing, the burden shifts to the employer to

proffer a legitimate, non-discriminatory reason for the adverse employment action.

Id. If the employer does so, the plaintiff must demonstrate that the employer’s

proffered reason is a pretext for discrimination. Id. A plaintiff may show pretext

“either directly by persuading the court that a discriminatory reason more likely

motivated the employer or indirectly by showing that the employer’s proffered

explanation is unworthy of credence.” Kragor v. Takeda Pharm. Am., Inc., 702

F.3d 1304, 1308-09 (11th Cir. 2012) (quotation marks omitted). If the proffered

reason is one that might motivate a reasonable employer, a plaintiff cannot merely

recast the reason, but must “meet that reason head on and rebut it.” Chapman v. AI

Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).

      It is settled that a reason cannot be a pretext for discrimination unless it is

shown both that the proffered reason was false and that discrimination was the real

reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 2752

(1993). Evidence supporting a prima facie case of discrimination, combined with

evidence that an employer’s proffered justification was false, could support an

inference of discrimination sufficient to defeat summary judgment. See Wilson v.

B/E Aerospace, Inc., 376 F.3d 1079, 1088, 1091 (11th Cir. 2004); see also Reeves

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48, 120 S. Ct. 2097, 2108-

09 (2000). However, a defendant is entitled to summary judgment where, although

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the plaintiff has established a prima facie case and set forth sufficient evidence to

reject the defendant’s explanation, no rational factfinder could conclude that the

action was discriminatory. See Flowers, 803 F.3d at 1339; see also Reeves, 530

U.S. at 148, 120 S. Ct. at 2109.

      The McDonnell Douglas framework “is not the sine qua non for a plaintiff to

survive summary judgment in a discrimination case,” and a plaintiff will always

survive summary judgment “if [she] presents circumstantial evidence that creates a

triable issue concerning the employer’s discriminatory intent.” Sims v. MVM, Inc.,

704 F.3d 1327, 1333 (11th Cir. 2013) (quotation marks omitted). Such an issue

exists if the record, viewed in the 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. (quotation marks omitted).

             IV. ANALYSIS OF CAPTAIN STEVENS’S CLAIMS

A.    Prima Facie Case

      Defendants argue that the district court erred in concluding that Stevens was

subject to an adverse employment action. Defendants emphasize that, while she

was initially terminated for not signing the Last Chance Agreement, Stevens was

permitted later to resign. Because Stevens ultimately resigned, defendants argue,

no adverse employment action was ever taken against her.




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      We disagree. In the light most favorable to the nonmoving party, Captain

Stevens was effectively terminated and only resigned thereafter because she had no

choice. Defendants admit they made her employment contingent on her signing

the Last Chance Agreement. When she refused to sign the Agreement, defendants

terminated her but then allowed her to resign on the day of her appeal hearing. At

that point she was resigning to avoid a termination record. Given all events taken

together, we cannot say that Stevens has not shown an adverse employment action

for the purpose of making a prima facie case.

B.    Pretext

      Plaintiff Captain Stevens argues that defendants’ proffered reasons for

offering her the Last Chance Agreement and later terminating her were pretextual.

Stevens asserts that (a) she did not violate any Department policy in the Olascoaga

or GBI incidents; (b) similarly-situated employees were treated less harshly than

Stevens; and (c) Major Matson demonstrated gender bias before and after the

Olascoaga incident. We discuss each item separately.

C.    The Olascoaga Accident Review

      The revised Last Chance Agreement chastised plaintiff Captain Stevens for

exercising poor judgment and unprofessionalism inconsistent with Department

standards for its captains and for violating Department policies, citing the

Olascoaga incident along with three other incidents. Stevens has not shown that

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Chief Hobbs did not honestly believe that her conduct warranted a Last Chance

Agreement and then termination.

      Captain Stevens argues that there was no explicit Department policy

requiring that accident review panels receive and review complete accident review

packets (including photographs). Stevens testified that panels frequently decided

whether an accident was chargeable based solely on a verbal description of the

accident. Neither she nor any officer she knew had been disciplined “for

conducting an accident review panel without having the complete packet available.”

The Department does have written policies stating that detailed photographs must

be made of accidents involving city property or vehicles. Stevens stresses that

these policies still do not specifically state that accident review panels must review

the photos of the accident. Of course, defendants argue, that is the whole point of

the photos and accident review packet.

      In any event, Captain Stevens emphasizes that the first review panel officers’

written statements and sworn testimony do not reflect them feeling threatened or

intimidated by her. Stevens argues that she accurately described the accident to

them. Stevens also points out that her non-chargeability finding was not “utterly

unsupportable,” and Lieutenant Armstrong, although not a review panel member,

admitted that it “could go either way.”




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         The district court did not err in concluding that Captain Stevens failed to

show pretext as to the Olascoaga incident. It is clear that photographs were

supposed to be taken of Officer Olascoaga’s accident and that as a matter of best

practices Stevens should have shared them with the original review panel as it

considered whether the accident was chargeable. Stevens outranked each panel

officer and advised each that the accident was non-chargeable. The Last Chance

Agreement persuasively stated how this could have improperly influenced the

panel:

         The significant difference between your rank and [the panel officers’]
         was at best a factor creating undue influence over their abilities to
         render independent judgments. At worst, the manner you used was
         intimidating, due largely to the strong opinion you voiced before they
         had an opportunity to form their own judgments about the facts, and
         the fact that you are a captain and they are merely sergeants. They
         understood that you expected them not to exercise their own
         independent judgment and discretion, but rather, to echo, or rubber-
         stamp your conclusions. Thus, their review was a mere formality.
         From your experience as an investigator and as a manager, you should
         be keenly aware that this is not a competent, honest, nor a professional
         manner in which to conduct any investigation.

Although Stevens disputes the Agreement’s description of her demeanor, she does

not dispute approaching the original panel officers about what finding to make.

The record indicates that Chief Hobbs saw the photographs and accident packet

and reasonably concluded that Stevens’s “non-chargeable” finding was

unsupportable and that her accident description had misled panel members.

Further, a second review panel, upon reviewing the accident packet, unanimously
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found that the accident was chargeable. Importantly, it is irrelevant whether

defendants’ decision to take adverse action against Stevens was imprudent or even

unfair, so long as it was not discriminatory. See Flowers, 803 F.3d at 1338.

Stevens’s evidence does not rebut the fact that Chief Hobbs disciplined Stevens

because he honestly and reasonably believed that she acted improperly. There is

no evidence of a discriminatory motive.

D.    GBI Reference Check

      Plaintiff Captain Stevens also argues that back in February 2012 she did not

violate any Department policy by telling a GBI officer that a former Forest Park

officer had once attempted to grab her chest. As noted above, Stevens was

disciplined for this incident (which was cited in the Last Chance Agreement).

      The February 2012 disciplinary report, that Stevens received, stated that she

violated Chief Hobbs’s General Order #31 by providing undocumented

information that could not be verified during a job reference. Order #31 states that

(a) only the Chief of Police or persons to whom the Chief provides explicit written

authority may provide any information or opinion about any Forest Park Police

Department employee or former employee to any outside person or entity; and (b)

it is the policy of the Forest Park Police Department to provide accurate and

truthful information concerning its employees and former employees.




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      Stevens does not dispute that she had not reported the groping behavior of

the former officer before she told the GBI officer about it. In fact, when presented

with the February 2012 disciplinary report stating that her disclosure of

unverifiable information fell “outside the scope of General Order #31,” Stevens

checked a box stating that she concurred with this statement (although she clarified

that her intention was to be truthful). Even assuming arguendo that this GBI

incident played a material role in Stevens’s ultimate termination, her evidence fails

to create a triable issue concerning pretext.

E.    Comparators

      Plaintiff Captain Stevens also argues that she was disciplined more harshly

than similarly-situated peers, inviting an inference that her firing was

discriminatory and that defendants’ proffered reasons for doing so were pretextual.

In determining whether employees are similarly situated, we consider whether the

employees are involved in or accused of the same or similar conduct and are

disciplined in different ways. Burke-Fowler v. Orange Cty., 447 F.3d 1319, 1323

(11th Cir. 2006). Where a plaintiff and a comparator are disciplined differently,

the quantity and quality of a comparator’s misconduct must be “nearly identical” to

that of the plaintiff for this to support the plaintiff’s discrimination claim. See id.

Applying this standard, Stevens’s argument fails.




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      Captain Stevens primarily points to Lieutenant Armstrong, an African-

American male who was subordinate to her. Lieutenant Armstrong concurred that

Officer Olascoaga’s accident was non-chargeable and did not change his finding

when urged by Major Matson. Armstrong was not disciplined, and was later

promoted to plaintiff’s former position. However, Stevens’s argument ignores that

Armstrong did not approach any of the three review panel members and advise

them that Olascoaga’s accident was non-chargeable while failing to give them the

review packet. Captain Stevens approached all three of them. Even setting aside

Stevens’s prior disciplinary history, we find that Lieutenant Armstrong is a poor

comparator.

      Stevens also argues that she is similarly situated to Captain Harris, a

Caucasian male, who found a 2011 accident to be non-chargeable and was

overruled by Major Matson. Stevens notes that, although Harris was on a Last

Chance Agreement at the time, he only received verbal counseling. However,

there is no record evidence that Harris gave his panel a misleading description of

the accident in question, failed to provide them with evidence material to their

determination or advised them the accident was non-chargeable (the panel

unanimously found the accident was chargeable). Harris, too, is a poor comparator.




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F.    Evidence of Major Matson’s Bias

      Plaintiff Captain Stevens also argues that Major Matson had on several

occasions demonstrated gender bias, and suggests that, due to his integral role in

her termination, this casts suspicion on Chief Hobbs’s proffered bases for her

termination. When denying Stevens’s request to transfer a female officer to her

shift sometime in 2011, Matson allegedly commented that “there’s too much

estrogen on your shift.” Stevens also points to a September 2011 email in which

Matson said, “Lemme guess . . . your hat says ‘bitchy’?” in response to an email

that Stevens had sent to several people that included a photograph depicting two

female soldiers whose last names, “Moody” and “Kuntz,” were embroidered on the

back of their hats. Additionally, Stevens alleges that Matson handed her the

original proposed Last Chance Agreement on pink paper, and that he

condescendingly stated that pink was her favorite color because she was a girl. In

her reply brief, Stevens additionally cites Matson’s inappropriate interest in her

romantic life and Matson’s pattern of attributing female officers’ work mistakes to

problems in their personal lives.

      Stevens specifically asserts a “cat’s paw” theory of discrimination,

suggesting that Chief Hobbs’s decision to offer her a Last Chance agreement was

the product of Major Matson’s gender bias. A plaintiff may show that

discriminatory animus caused an adverse employment action by proving that a

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biased party with no power to take the adverse action made a recommendation that

directly resulted in the action. See Stimpson v. City of Tuscaloosa, 186 F.3d 1328,

1331 (11th Cir. 1999). Under this standard, a plaintiff may maintain a “cat’s paw”

theory of discrimination by establishing that the decisionmaker followed a biased

recommendation without independently investigating it. See id. at 1332.

       The problem for plaintiff Captain Stevens is that Chief Hobbs did not merely

accept Matson’s assessment of Stevens without investigating and reaching his own

conclusions. The record reflects that Hobbs personally reviewed Stevens’s

disciplinary history, personally spoke with Stevens at length prior to her

termination (thereby giving her the opportunity to tell her version of events), and

personally revised the Last Chance Agreement. Notably, many critical facts that

motivated Hobbs to discipline Stevens are not in dispute, namely that Stevens

approached panel officers with the conclusion that the accident was non-

chargeable without providing the officers with photographs of the accident.12

Given Chief Hobbs’s level of involvement in the process leading up to Stevens’s

termination, Stevens fails to plausibly show that the adverse action she suffered

was the product of Matson’s alleged bias.




       12
         Also, Matson’s initial recommendation was to fire Stevens, which Chief Hobbs rejected.
This further suggests that Hobbs’s thinking was independent from that of Matson.
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G.     Prior Incidents

       Plaintiff Captain Stevens argues that facts surrounding her prior disciplinary

incidents support her discrimination claim. Stevens specifically focuses on her

2012 dispute with Captain Harris and Lieutenant Hiers, arguing that she (a) did not

behave erratically; (b) was needlessly pressured to meet with the Department’s

therapist; (c) raised legitimate complaints about Lieutenant Hiers’s job

performance that were never investigated; and (d) was unfairly disciplined while

Lieutenant Hiers was not. Stevens stresses Matson’s role in this incident.

       Even granting that Stevens’s full disciplinary history played a role in her

ultimate termination, the fact disputes she raises still fail to raise an inference of

discrimination by Chief Hobbs, the decisionmaker here. The evidence shows that

Chief Hobbs had a reasonable basis for his honest belief that Stevens’s performed

improperly as a police captain, and more to the point, no reasonable juror could

find that Stevens was the victim of discrimination by defendant Chief Hobbs.13

                                    V. CONCLUSION

       For all the foregoing reasons, we affirm the district court’s grant of summary

judgment in favor of defendants.

       AFFIRMED.



       13
          For this reason, we also find no convincing mosaic of circumstantial evidence giving
rise to an inference of race or gender discrimination.
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