                                                                   [DO NOT PUBLISH]



                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                                                        JULY 9, 2012
                                            No. 11-14040
                                        Non-Argument Calendar            JOHN LEY
                                                                          CLERK
                                      ________________________

                                D.C. Docket No. 9:10-cv-80294-WJZ



BEHEEN MOGHADDAM-TRIMBLE,

llllllllllllllllllllllllllllllllllllllll                         Plaintiff - Appellant,

                                              versus

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

llllllllllllllllllllllllllllllllllllllll                         Defendant - Appellee.

                                     ________________________

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

                                            (July 9, 2012)

Before TJOFLAT, WILSON and KRAVITCH, Circuit Judges.

PER CURIAM:
       Plaintiff, Beheen Moghaddam-Trimble, a woman proceeding pro se, alleges

gender discrimination pursuant to Title VII of the Civil Rights Act of 1964 and 42

U.S.C. § 1981.1 Defendant, South Florida Water Management District

(Management District), moved for summary judgment. The Magistrate

recommended granting summary judgment for the Management District, and the

district court accepted the Magistrate’s Report and Recommendation. The

Magistrate found that Moghaddam-Trimble could not establish a prima facie case

of gender discrimination because she could not show that male employees in a

similar situation were treated more favorably than she. Additionally, the

Magistrate found that Moghaddam-Trimble did not establish that the Management

District’s legitimate nondiscriminatory reason for investigating whether

Moghaddam-Trimble sexually harassed Peter Kwiatkowski was pretexual. After

reviewing the briefs and the record, we affirm.2

                                        I. Background

       Moghaddam-Trimble was a Senior Scientist for the Management District,

and she reported directly to Kevin Rodberg. Rodberg reported to Peter


       1
         The district court dismissed Moghaddam-Trimble’s claim of national origin
discrimination; therefore only her gender discrimination claim remains.
       2
        We construe pro se filings liberally to afford review on any “legally justifiable base.”
Sanders v. United States, 113 F.3d 184, 187 (11th Cir. 1997) (per curiam).

                                                 2
Kwiatkowski, the Division Director for Resource Evaluation/Sub-Regional

Modeling. According to Kwiatkowski, Moghaddam-Trimble and Kwiatkowski

only interacted on a professional level, but Moghaddam-Trimble claims that they

had an intimate relationship. On October 3, 2007, Kwiatkowski filed a sexual

harassment complaint against Moghaddam-Trimble. Moghaddam-Trimble claims

that Kwiatkowski filed his complaint as retaliation against Moghaddam-Trimble

because she ended the relationship between Kwiatkowski and herself.

Kwiatkowski views the events that led to his complaint differently.

      According to the report prepared by the Management District’s EEO

Consultant, Tanya Vaughn-Patterson, Kwiatkowski alleged that Moghaddam-

Trimble committed several inappropriate actions. Around June 13, 2007,

Moghaddam-Trimble approached Kwiatkowski and asked if he wanted to have a

sexual relationship with her, which Kwiatkowski refused. Moghaddam-Trimble

denies ever asking Kwiatkowski to have a sexual relationship with her. However,

on June 15, 2007, Moghaddam-Trimble handed Kwiatkowski a folded note (First

Note) then quickly left his office. The First Note states that she wanted to clarify

that she wanted more than a just sexual relationship with Kwiatkowski and did not

want to “use” him. Moghaddam-Trimble admits that she authored the First Note

and gave it to Kwiatkowski.

                                          3
      Kwiatkowski further alleged that in late August or early September of 2007,

Moghaddam-Trimble came into his office and asked if he ever fantasized about

her and lifted her shirt exposing her bare breasts. Moghaddam-Trimble denies this

allegation.

      On October 3, 2007, Moghaddam-Trimble gave Kwiatkowski the Second

Note. The Second Note states that Moghaddam-Trimble thought Kwiatkowski

was her “dream man” but was really “an insensitive, selfish, and mean person”

who “just pretend[s] to be nice.” The note also apologizes for all the trouble

Moghaddam-Trimble created for Kwiatkowski and states that Kwiatkowski was a

good boss. Moghaddam-Trimble also admits to writing this note and giving it to

Kwiatkowski. Kwiatkowski stated in his deposition that he filed the complaint

after the Second Note because between the several phone calls he had received

from her and the other incidents, he felt that she was not accepting his insistence

that he did not want a relationship with her.

      On October 8, 2007, the Employee Relations Manager in the Human

Resources Solutions Department informed Moghaddam-Trimble of the allegations

and that there would be an investigation into Kwiatkowski’s claims. Moghaddam-

Trimble was also placed on unpaid administrative leave, but was permitted to use

annual leave which would be credited back to Moghaddam-Trimble if no

                                          4
wrongdoing was found. Moghaddam-Trimble agreed to take annual leave.

      On October 9, 2007, Vaughn-Patterson interviewed Moghaddam-Trimble.

During the interview Vaughn-Patterson kept notes reflecting the conversation with

Moghaddam-Trimble. Moghaddam-Trimble then initialed each of the three pages

of notes as accurate. Moghaddam-Trimble now claims that the notes do not

accurately reflect their conversation.

      On November 5, 2007, Vaughn-Patterson finished her EEO Report. The

Report found Kwiatkowski to be more credible than Moghaddam-Trimble because

Moghaddam-Trimble denied propositioning Kwiatkowski but the First Note leads

to the determination that she did proposition Kwiatkowski. Thus, it is also likely

that Kwiatkowski truthfully retold the encounter in which Moghaddam-Trimble

lifted her shirt in his presence, even though no one else could corroborate his

version of the incident. Taking into consideration the two notes and the incident

in Kwiatkowski’s office, Vaughn-Patterson found that Moghaddam-Trimble had

violated the Management District’s Standards of Conduct and Equal Employment

Opportunity and Harassment policies. This report was then given to Moghaddam-

Trimble’s Department Director, Marjorie Craig. Craig would make the ultimate

decision as to the type of discipline that Moghaddam-Trimble’s actions warranted.

      Before making her final decision, Craig permitted Moghaddam-Trimble to

                                          5
give Craig a written response to the EEO report. Craig reviewed Moghaddam-

Trimble’s written response, and felt that Moghaddam-Trimble failed to provide

any new information that would support reversing the EEO Report’s findings. At

that point Craig decided that terminating Moghaddam-Trimble would be in the

best interest of the Management District, but Moghaddam-Trimble resigned before

Craig terminated her employment.

                               II. Standard of Review

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

all evidence and drawing all reasonable inferences in favor of the non-moving

party. Owen v. I.C. Sys., Inc., 629 F.3d 1263, 1270 (11th Cir. 2011). Summary

judgment is appropriate where “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);

see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552

(1986). The moving party bears the initial burden of showing the absence of any

disputed material fact. Fickling v. United States, 507 F.3d 1302, 1304 (11th Cir.

2007) (per curiam). If the moving party meets its burden, “the nonmoving party

must present evidence beyond the pleadings showing that a reasonable jury could

find in its favor.” Id. “Speculation does not create a genuine issue of fact . . .”

Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (internal

                                           6
quotation marks omitted). Likewise, a plaintiff cannot defeat summary judgment

by relying upon conclusory assertions. See Holifield v. Reno, 115 F.3d 1555, 1564

n.6 (11th Cir. 1997) (per curiam).

                                        III. Analysis

           Where, as here, the plaintiff relies on circumstantial evidence of

discrimination, the case is analyzed under the burden-shifting framework set out in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04, 93 S. Ct. 1817, 1824–

25 (1973); Burke-Fowler v. Orange County, Fla., 447 F.3d 1319, 1323 (11th Cir.

2006) (per curiam).3 Under the McDonnell Douglas framework, the plaintiff bears

the initial burden of presenting sufficient evidence of her prima facie case.

411 U.S. at 802, 93 S. Ct. at 1824. Once the plaintiff shows sufficient evidence of

a prima facie case, the burden then shifts to the defendant “to articulate some

legitimate, nondiscriminatory reason” for the adverse employment action. Id.

Then the burden shifts to the plaintiff to show that the reason is pretextual. Id. at

804, 93 S. Ct. at 1825. In order to show pretext the plaintiff must cast doubt on

the defendant’s legitimate nondiscriminatory reason “to permit a reasonable

factfinder to conclude that the employer’s proffered legitimate reasons were not



       3
       Title VII and § 1981 have the same requirements of proof and utilize the same analytical
framework. See Brown v. Am. Honda Motor Co., 939 F.2d 946, 949 (11th Cir.1991).

                                               7
what actually motivated its conduct.” Combs v. Plantation Patterns, 106 F.3d

1519, 1538 (11th Cir. 1997) (internal quotation marks omitted).

      Assuming that Moghaddam-Trimble could establish a prima facie case of

gender discrimination, she cannot show that the Management District’s legitimate

nondiscriminatory reason was pretexual. Moghaddam-Trimble claims that the

Managment District’s decision to investigate her was solely because she was a

woman. Furthermore, she argues that the investigation was biased against her

because of her gender. Finally Moghaddam-Trimble claims that despite Craig

permitting her to resign instead of simply terminating her, Craig’s decision to

terminate Moghaddam-Trimble’s employment was also based on gender.

      Even if ultimately found to be untrue, the Management District had a duty

to investigate the allegations made by Kwiatkowski. Also, Moghaddam-Trimble

has not pointed to anything in the record to show that the Management District did

not follow its own policies when investigating Moghaddam-Trimble and when the

Management District put her on administrative leave. Furthermore, given the

findings of the EEO Report, there is nothing to indicate that the decision tto

terminate Moghaddam-Trimble’s employment with the Management District,

although not carried out, was pretextual. See Damon v. Fleming Supermarkets of

Fla., Inc., 196 F.3d 1354, 1363 n.3 (11th Cir. 1999) (noting that an employer is

                                          8
not liable for discriminatory conduct if the employer terminates an employee

under “the mistaken but honest impression” that the employee violated a policy).

Therefore, the district court properly decided that Moghaddam-Trimble did not

carry her burden to prove that the Management District’s legitimate

nondiscriminatory reason was pretextual. We affirm the grant of summary

judgment in favor of the Management District.

      AFFIRMED.




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