              Case: 12-15574    Date Filed: 06/04/2013    Page: 1 of 8


                                                         [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 12-15574
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 4:11-cv-00567-RS-CAS



CYNTHIA TURNER,

                                                               Plaintiff-Appellant,

                                      versus


BOB INZER,
in his official capacity as Leon County Clerk of the Court

                                                              Defendant-Appellee.

                          ________________________

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

                                  (June 4, 2013)
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Before DUBINA, Chief Judge, MARTIN and FAY, Circuit Judges.

PER CURIAM:

      Appellant Cynthia Turner, a black woman, appeals the district court’s grant

of summary judgment in favor of her employer, the Leon County Clerk of the

Court, on her claims of whistleblower retaliation, in violation of Fla. Stat.

§ 112.3187, and gender discrimination and retaliation, in violation of Title VII of

the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e-2, 2000e-3. Turner

alleges that her employer initially suspended her, transferred her to a less desirable

position within the Clerk’s Office, and placed her on probation because of her race

and because she made protected disclosures under the Florida Whistleblower’s Act

(“FWA”). She further alleges that her employer ultimately fired her in retaliation

for her FWA disclosures and a charge of racial discrimination that she filed with

the Equal Employment Opportunity Commission. Turner contends that the district

court erred in finding that she failed to: (1) identify any disclosures protected under

the FWA; (2) identify proper comparators; (3) consider circumstantial evidence of

racial hostility; and (4) show that her employer’s legitimate, non-discriminatory

and non-retaliatory reasons for her suspension, transfer, and termination were

pretextual. Turner also contends that the district court erred because it did not

analyze her Title VII retaliation claim.


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      We review a district court’s grant of summary judgment de novo, and all

evidence and reasonable inferences therefrom must be viewed in the light most

favorable to the non-moving party. Brooks v. Cnty. Comm’n of Jefferson Cnty.,

Ala., 446 F.3d 1160, 1161‒62 (11th Cir. 2006); Wascura v. City of South Miami,

257 F.3d 1238, 1242 (11th Cir. 2001). Summary judgment is appropriate if the

evidence demonstrates that there is no genuine issue as to any material fact, and

that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P.

56(a). “An issue of fact is ‘material’ if, under the applicable substantive law, it

might affect the outcome of the case.” Hickson Corp. v. N. Crossarm Co., Inc.,

357 F.3d 1256, 1259 (11th Cir. 2004). The moving party must make enough of a

showing that a jury could reasonably find for that party, and a mere “scintilla” of

evidence supporting its position will not suffice. Brooks, 446 F.3d at 1162. The

non-moving party, meanwhile, must make a sufficient showing on each essential

element of his case for which he has the burden of proof. See Celotex Corp. v.

Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986).

      The FWA provides that an agency may not dismiss or discipline an

employee for disclosing “[a]ny violation or suspected violation of any . . . local

law, rule, or regulation committed by an employee or agent of an agency” or

“[a]ny act or suspected act of gross mismanagement, malfeasance, misfeasance . . .

.” Fla. Stat. § 112.3187(4), (5), (7). The FWA protects disclosures presented “in a


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written and signed complaint,” as well as disclosure made by persons “who are

requested to participate in an investigation, hearing, or other inquiry conducted by

any agency or federal government entity.” Fla. Stat. § 112.3187(7).

      We have approved a district court’s application of a Title VII retaliation

analysis to a claim of retaliatory discharge under the FWA. See Sierminski v.

Transouth Financial Corp., 216 F.3d 945, 950‒51 (11th Cir. 2000). In order to

establish a prima facie showing of retaliation under Title VII, a claimant must

show that: (1) she engaged in an activity protected under Title VII, (2) she suffered

an adverse employment action, and (3) a causal connection existed between the

protected activity and the adverse employment action. McCann v. Tillman, 526

F.3d 1370, 1375 (11th Cir. 2008). Once a claimant has made a prima facie

showing, the employer may present legitimate, non-retaliatory reasons for the

employment action in question. Pennington v. City of Huntsville, 261 F.3d 1262,

1266 (11th Cir. 2001). The claimant then bears the burden of proving by a

preponderance of the evidence that the reasons given by the employer were

pretextual. Id.

      Where pretext is an issue, the question that the factfinder must answer is

whether the employer’s proffered reasons were “a coverup for a . . . discriminatory

decision.” Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002) (quoting

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805‒06, 93 S. Ct. 1817, 1826


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(1973)); see also Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354,

1361 (11th Cir. 1999) (holding that this court is “not in the business of adjudging

whether employment decisions are prudent or fair. Instead, [its] sole concern is

whether unlawful discriminatory animus motivates a challenged employment

decision”). We must, considering all of the evidence, ascertain whether the

plaintiff has cast doubt on the defendant’s proffered non-discriminatory reasons

sufficient to allow a reasonable factfinder to determine that the defendant’s

proffered “legitimate reasons were not what actually motivated its conduct.”

Silvera v Orange Cnty. Sch. Bd., 244 F.3d 1253, 1258 (11th Cir. 2001) (internal

quotation marks omitted). In doing so, we must evaluate whether the plaintiff has

demonstrated “such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons for its action that a

reasonable factfinder could find them unworthy of credence.” Combs v. Plantation

Patterns, Meadowcraft, Inc., 106 F.3d 1519, 1538 (11th Cir. 1997) (internal

quotation marks omitted).

      Title VII makes it unlawful for an employer “to discriminate against any

individual with respect to [her] compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e-2(a)(1). To establish a prima facie case of disparate

treatment, a plaintiff may show that “(1) she is a member of a group protected by


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Title VII; (2) she was qualified for the position or benefit sought; (3) she suffered

an adverse effect on her employment; and (4) she suffered from a differential

application of work or disciplinary rules.” Spivey v. Beverly Enters., Inc., 196 F.3d

1309, 1312 (11th Cir. 1999). “Evidence that similarly situated employees are

disciplined more leniently is admissible to support a disparate treatment claim

when the plaintiff has established that the co-employees are in fact similarly

situated.” Anderson v. WBMG-42, 253 F.3d 561, 564 (11th Cir. 2001). Thus, the

plaintiff should show that the comparator employees are “involved in or accused of

the same or similar conduct,” yet are disciplined in a different, more favorable

manner. Id. (internal quotation marks omitted).

      The above “framework is not, however, the only way to use circumstantial

evidence to survive a motion for summary judgment, and a plaintiff’s failure to

produce a comparator does not necessarily doom his case.” Chapter 7 Tr. v. Gate

Gourmet, Inc., 683 F.3d 1249, 1255 (11th Cir. 2012) (internal quotation marks and

alteration omitted). “Rather, the plaintiff will always survive summary judgment if

he presents circumstantial evidence that creates a triable issue concerning the

employer’s discriminatory intent.” Smith v. Lockheed-Martin Corp., 644 F.3d

1321, 1328 (11th Cir. 2011). “A triable issue of fact exists if the record, viewed in

a light most favorable to the plaintiff, presents a convincing mosaic of




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circumstantial evidence that would allow a jury to infer intentional discrimination

by the decisionmaker.” Id. (internal quotation marks and footnote omitted).

      If the plaintiff establishes a prima facie case, the burden of production shifts

to the employer to provide a legitimate, non-discriminatory reason for the action

taken, which rebuts the presumption of discrimination. Brooks, 446 F.3d at 1162.

So long as the employer articulates a clear and reasonably specific non-

discriminatory basis for its actions, it has discharged its burden of production, the

inference of discrimination drops out of the case entirely, and the plaintiff has the

opportunity to show by a preponderance of the evidence that the proffered reasons

were pretextual. St. Mary’s Honor Cent. v. Hicks, 509 U.S. 502, 511, 113 S. Ct.

2742, 2749 (1993). Where an employer’s proffered reason for termination is the

violation of a workplace rule, this court has held that explanation to be “arguably

pretextual” when a plaintiff can submit evidence that: (1) “she did not violate the

cited work rule;” or (2) “if she did violate the rule, other employees outside the

protected class, who engaged in similar acts, were not similarly treated.” Damon,

196 F.3d at 1363.

      Even assuming, arguendo, that Turner made out prima facie cases of

retaliation under the FWA and racial discrimination and retaliation under Title VII,

we conclude from the record that she failed to produce evidence that her

employer’s legitimate, non-discriminatory and non-retaliatory reasons for her


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suspension, transfer, and termination were pretextual. The Clerk stated that he

suspended and transferred Turner for insubordination. He further stated that

Turner was terminated for poor work performance. Turner produced no evidence

to rebut the Clerk’s proffered reasons for her suspension, transfer, and termination.

Accordingly, we affirm the district court’s grant of summary judgment to the Clerk

on all counts.

      AFFIRMED.




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