                Case: 14-11637       Date Filed: 06/17/2015       Page: 1 of 30


                                                                       [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 14-11637
                               ________________________

                          D.C. Docket No. 1:12-cv-03752-WSD


MARY GODWIN,

                                                                           Plaintiff-Appellant,

                                             versus

WELLSTAR HEALTH SYSTEM, INC.,

                                                                         Defendant-Appellee.

                               ________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                            ________________________
                                   (June 17, 2015)

Before HULL, ANDERSON and FARRIS, * Circuit Judges.

PER CURIAM:

       In this employment lawsuit, Plaintiff Mary Godwin (“Godwin”) appeals the

district court’s order granting summary judgment in favor of her employer,
       *
        Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
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WellStar Health System, Inc. (“WellStar”) on her age discrimination, disability

discrimination, and retaliation claims.

       Godwin’s age discrimination and retaliation claims stem from her firing by

WellStar. Godwin’s disability discrimination claim arises from WellStar’s alleged

failure to accommodate Godwin’s disability.

       After a review of the record and the parties’ briefs, and with the benefit of

oral argument, we reverse the grant of summary judgment in favor of WellStar on

Godwin’s age discrimination claim but affirm as to all the other claims.

                             I. FACTUAL BACKGROUND

       In this summary-judgment posture, we review the facts in the light most

favorable to Godwin.1

A.     1999–March 2010: Godwin’s Employment History with WellStar

       Godwin began working for WellStar in 1999, when she was approximately

51 years old. 2 WellStar hired Godwin as an order puller in the company’s

distribution center. As an order puller, Godwin was required to identify the

product that was to be distributed, put it in a box, and label it. She eventually

became the lead order puller at the distribution center.



       1
        We conclude that Godwin has not shown reversible error in the district court’s grant of
summary judgment on her disability and two retaliation claims. In this opinion, we focus on the
record evidence regarding her age discrimination claim.
       2
           Godwin was born in 1948.


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      By 2003, Godwin was promoted to the position of “buyer” in the

distribution center. As a buyer, Godwin processed orders through WellStar’s

computer programs, and she was responsible for part of the process by which order

pullers received their orders. For approximately six years, Godwin remained a

buyer in the distribution center.

      From 2003 through 2007, Godwin received mixed performance reviews for

her work as a buyer. Her reviews generally indicated that she met expectations in

most categories, but that she needed improvement or failed to meet expectations in

other categories.

      At some point in 2007 or 2008, Godwin was transferred to the purchasing

department to replace an individual who was sick. She retained the position of

buyer while in the purchasing department.

      As a buyer in the purchasing department, Godwin was responsible for

ordering products that went directly to the hospitals and other facilities within the

WellStar system. Godwin worked directly with certain WellStar departments;

employees in those departments placed requisition orders in WellStar’s computer

system, and Godwin was responsible for reviewing those orders. Once she

reviewed those orders, Godwin was tasked with creating purchase orders to

execute the transaction with the vendor supplying the requested product. Errors

can occur in this process if the buyer enters the information into the purchase order



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incorrectly, which can lead to no product being ordered, the incorrect product

being ordered, or the correct product being ordered in the wrong quantity or at the

wrong price. Godwin also was responsible for confirming that the vendor was able

to supply the product within the necessary timeframe, and confirming that

WellStar actually received the correct quantity of the product ordered.

      From the time Godwin was transferred to the purchasing department through

March of 2010, Godwin continued to receive mixed performance reviews, which

indicated that her performance hovered around meeting expectations.

      On March 1, 2009, Anthony Trupiano began working for WellStar as a vice

president. Trupiano was tasked with improving the overall performance of the

areas under his supervision, including the purchasing department.

      As part of his efforts to increase the performance of the purchasing

department, Trupiano created a new position of Director of Purchasing and

Contracts. In September or October of 2009, Trupiano hired Ken Tifft for this new

position.

      About this time, Godwin received a performance evaluation covering the

period from July 1, 2008 to June 30, 2009. The evaluation, which Tifft personally

observed, indicated that Godwin was generally failing to meet expectations.

Godwin’s direct supervisor, who conducted the performance evaluation, resigned




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shortly thereafter. From that point through April 2010, Godwin reported directly

to Tifft.

       Tifft did not feel that Godwin’s former supervisor had adequate

documentation to justify rating Godwin as failing to meet expectations, so he

approved a three-percent merit increase for Godwin just one month later, in

November 2009. Indeed, Tifft thought that Godwin was “was not evaluated fairly

or correctly” and thought that she was meeting expectations as of April 2010.

Kristen Betts, WellStar’s director of human resources, conveyed Tifft’s thoughts in

an e-mail. The e-mail stated, in relevant part:

       [Tifft] is concerned about Mary Godwin specifically. … Based on
       what [Tifft] has seen and knows about [Godwin’s] performance over
       the last few months, he feels that she is not at that level [of not
       meeting expectations], and in fact she is meeting expectations, and
       that she was not evaluated fairly or correctly by Chris and previous
       management.

       In addition, one of Tifft’s goals was to increase the responsibilities of

WellStar’s buyers to align better with the company’s official description of the

position of buyer. As part of this process, Tifft sought to have WellStar’s buyers

focus on higher-level tasks, including seeking out opportunities to achieve cost

savings for WellStar. During his review of WellStar’s buyers, Tifft discovered that

Godwin was being paid at a lower hourly rate than other buyers and thus approved

a raise for Godwin from $13.92 per hour to $18.51 per hour.




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      In March of 2010, Tifft conducted a mid-year performance review of

Godwin. Tifft rated Godwin’s overall performance as slightly below meeting

expectations. Tifft expected Godwin to respond to the concerns that he raised

about her performance in the evaluation. Within about a month, Tifft had seen

some evidence of her efforts in that regard, and he felt that it was fair to say at that

point that Godwin was meeting expectations.

B.    April 2010: Cherise Brown Becomes Godwin’s Supervisor

      In April 2010, WellStar hired Cherise Brown as the purchasing department

manager. In that role, Brown replaced Tifft as Godwin’s direct manager. At that

time, Tifft thought Godwin was meeting expectations.

      Brown was tasked with improving the performance of employees in the

purchasing department and building their skill sets so they would be able to

complete more robust tasks, which were set forth in their job descriptions. Brown

was a very demanding manager, and her management style was different from the

styles of Godwin’s previous managers.

C.    September 2010-December 2010: Brown Places Godwin on First PIP

      On September 8, 2010, about five months after arriving at WellStar, Brown

placed Godwin on a 90-day performance improvement plan (a “PIP”). The PIP

identified several deficiencies in Godwin’s performance, including (1) making

errors on purchase orders, (2) engaging in little or no follow-up with internal



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customers, and (3) taking too many breaks. Godwin, however, disputes that she

made more purchase order errors than other buyers.

      On October 8, 2010, Brown presented Godwin with a 30-day follow-up to

the PIP. The 30-day follow-up noted (1) that the frequency of Godwin’s breaks

had decreased; (2) that, although Godwin had improved her rate of escalating

sensitive issues, mistakes with key customers continued to occur; and (3) that

Godwin’s customer complaints were high, and issues were going unaddressed or

unresolved.

      On November 8, 2010, Brown presented Godwin with a 60-day follow-up to

the PIP. The 60-day follow-up noted (1) that Brown continued to have concerns

about Godwin’s communication and prompt escalation of important matters; (2)

that Godwin must continue to focus on “understanding current processes and

communicating directly with customers[,] specifically on the vendor certification

process”; (3) that Godwin had maintained a lower frequency of breaks; and (4) that

“[t]he next 30 days will be critical to determining if [Godwin] will complete the

PIP in good standing.”

      Although Brown had indicated in the 60-day follow-up that the ensuing 30

days would be critical, she never completed a 90-day follow-up in December of

2010. Instead, Brown decided to reserve any discussion until Godwin’s mid-year

evaluation.



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D.     January 2011-February 2011: Brown Evaluates Godwin and Places Her
       on Second PIP

       In January or February 2011, Brown completed Godwin’s mid-year

evaluation. In this evaluation, Godwin received an overall rating of 2.63 out of

5.00, which reflected that she was not meeting expectations. However, Brown

stated that Godwin had “a willingness to correct poor performance.”

       On February 22, 2011, Brown placed Godwin on a second PIP.3 In this

second PIP, Brown stated that Godwin’s performance suffered from the following

deficiencies: (1) errors on purchase orders, including incorrect prices, missing

notes, and errors in quantity; (2) the absence of any savings reported; (3) the lack

of participation on work teams; (4) excessive time away from her desk; and (5)

excessive personal use of the internet.

E.     March 2011-May 2011: Brown Performs Follow-ups on Second PIP and
       Godwin Complaints to HR

       On March 28, 2011, Godwin received a 30-day follow-up to the February

2011 PIP. In that 30-day follow-up, Brown stated (1) that Godwin’s errors with

purchase orders continued and reflected a lack of attention to detail; (2) that basic

procedures were not being followed; (3) that Godwin had not reported any cost




       3
        Although WellStar contends that Brown merely extended the earlier PIP for another 90
days, Godwin asserts that the first PIP expired after 90 days. At this summary-judgment stage,
we resolve this disputed factual matter in favor of Godwin.


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savings; and (4) that a work team that Godwin led 4 had not taken certain actions.

However, Brown did note in that 30-day follow-up that Godwin’s personal use of

the internet had decreased. Furthermore, that 30-day follow-up did not mention

the earlier concern about Godwin’s alleged excessive time away from her desk,

which would have been documented if it had continued to be problem.

       One day later, on March 29, 2011, Godwin spoke with Betts, the director of

human resources. Godwin told Betts that Brown made several ageist comments.

Those comments included (1) that, at Godwin’s age, she should be home with her

husband; (2) that Godwin should have planned for certain expenses when she was

young; (3) that Godwin was not capable of “mentally understanding” her job; and

(4) that Godwin should probably be home with her husband because he was ill.5 In

response, Betts told Godwin that she should tease Brown, who was about 37 years

old at the time, about her young age.6 WellStar’s human resources department did

not investigate Godwin’s complaint.



       4
        Godwin led the blood project product improvement team, which was tasked with
looking for opportunities to save money from the blood products WellStar purchased from the
American Red Cross.
       5
          Godwin’s husband had a serious illness in 2010 and 2011. Godwin arranged to work
from 5:00 a.m. to 3:00 p.m. during this time, as someone stayed with her husband until 3:00 p.m.
while she was at work.
         In addition, from at least 2010 through 2011, Godwin herself suffered from rheumatoid
arthritis, osteoporosis, and fibromyalgia.
       6
        Betts denies that Godwin made any complaints about age discrimination at this March
29, 2011 meeting. Rather, Betts asserts that the discussion was around Godwin’s concerns that


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       On May 4, 2011, Godwin received a 60-day follow-up to the February 2011

PIP. In that 60-day follow-up, Brown stated (1) that errors with Godwin’s

purchase orders continued to be found and “strongly indicate no attention to

detail”; (2) that Godwin failed to adhere to basic purchase-order procedures; (3)

that Godwin had produced “[v]ery little savings”—only $2,600 out of a $35,000

goal; and (4) that the team Godwin led lacked leadership, as demonstrated by the

fact that a meeting had been cancelled “due to insufficient communication and

insufficient stakeholder participation.” Godwin, however, disputes that her

performance actually reflected the alleged deficiencies. Brown did not make any

notes about the previously identified concerns about Godwin’s time away from her

desk or use of the internet, and WellStar concedes that Brown would have

documented these issues if they had continued to be problems.

       During this meeting, Brown also informed Godwin that she would not be

getting credit for savings produced by a project Godwin had been working on and

that Brown decided another employee would receive the savings credit. The

employee who received the savings credit told Godwin that Brown made that

decision because Brown was trying to sabotage Godwin.

       Later that day, after she received the 60-day follow-up to her PIP, Godwin

met with Assistant Vice President of Human Resources Mary Louise Tavernaro

she was not meeting Brown’s expectations. However, we resolve this factual dispute in
Godwin’s favor at this summary-judgment stage.


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and complained about Brown making comments about her age. 7 Tavernaro told

Godwin to take the next two days off and that human resources would investigate

the situation.

       On May 9, 2011, Godwin met with Tavernaro and Betts, who was on

vacation the day Godwin first reported Brown’s comments to Tavernaro. During

the meeting, which lasted more than an hour, Godwin told Tavernaro and Betts that

Brown had made several specific comments about Godwin’s age. Specifically,

Godwin informed Tavernaro and Betts that Brown (1) asked Godwin how old she

was, to which Godwin responded that she was 63; (2) said, after learning Godwin’s

age, “I would think at your age you would want to be home with your husband”;

and (3) asked Godwin why she didn’t plan to avoid working at her age.

       Godwin also complained to Tavernaro and Betts of Brown’s allegedly unfair

treatment, and of Brown’s directives that prevented Godwin from walking around

when needed. Godwin stated that three co-workers—Lynn Bryant, Tim Sullivan,

and June Carpenter—could attest that Brown was discriminating against Godwin

due to her age.

       Furthermore, Godwin told Tavernaro and Betts that she worked on a project

that achieved cost savings, but the savings were attributed to a younger employee.



       7
        The record does not include the specific comments about which Godwin complained on
May 4, 2011.


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Tavernaro and Betts told Godwin not to return to work and to take off the next

week so that they would have time to complete the investigation. 8

      On the same day Tavernaro and Betts interviewed Godwin, Brown

concluded that Godwin should be fired. Brown created a form entitled

“Performance Summary,” which is not a standard WellStar form, and

recommended terminating Godwin’s employment. Brown made this

recommendation even though Godwin’s PIP was not scheduled to conclude for

several more weeks. When she made this recommendation, Brown already knew

that Godwin had made an age discrimination complaint about her to human

resources because Tifft had informed Brown of the complaint.

      On May 12, 2011, Betts interviewed Brown. In that interview, Brown

admitted that she asked Godwin her age and asked Godwin why she was working

“past retirement age.” Brown also admitted telling Godwin that, in light of

Godwin’s age, Godwin would want to be home taking care of her husband. Brown

told Betts that she was trying to give Godwin “options.”

      Tavernaro and Betts then conducted interviews of a number of WellStar

employees, including Bryant and Carpenter.

      On May 20, 2011, Betts interviewed Lynn Bryant, who was a contract

analyst in the purchasing department. Betts’s notes of the interview indicate that


      8
          Godwin was paid for the days she was told not to return to work.


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Bryant described gossip in the department about Brown targeting “long term

employees” like Godwin. Bryant also told Betts that she thought Brown was

targeting Godwin. However, Bryant said that she had never heard any manager

refer to anyone as old or unable to learn new concepts. Bryant said that Godwin

often came to her for help, but that Brown and Tifft had instructed her to stop

helping Godwin because it was impacting the work they needed Bryant to

complete. Bryant described Brown as a “bulldog” and said she did what she could

to avoid working with Brown.

       Three days later, on May 23, 2011, Betts interviewed Carpenter, who was a

buyer in the purchasing department. Betts’s notes of the interview indicate that

Carpenter said that things had changed dramatically in the past year since Brown

was hired as manager. Betts noted that Carpenter said she never heard Brown say

anything about age but thought Brown was trying to get rid of Carpenter because

of her age. 9

       On May 23, 2011, WellStar’s human resources department concluded the

investigation. Based on her interviews and investigations, Betts concluded that she

could not “corroborate Godwin’s allegation that Brown was discriminating against

her or harassing her because of her age.” Instead, Betts concluded that “Brown

asked the question about Godwin’s age only as part of a personal conversation that


       9
           Brown later involuntarily transferred Carpenter out of the purchasing department.


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Godwin had initiated and with the genuine goal of being able to provide Godwin

with advice as a friend on how to address the situation she was facing.” However,

Betts stated, after Brown asked the question, “she realized that, as Godwin’s

manager, she should not have engaged in that conversation because it could be

misconstrued.” Betts told Godwin that WellStar did not find any age

discrimination.

      In the weeks after Betts concluded her investigation, she had discussions

with Brown about the next steps with respect to Godwin’s employment.

F.    June 2011: WellStar Terminates Godwin’s Employment

      When Godwin returned to work, she was nearing the end of her second 90-

day PIP. Prior to returning to work, Godwin was not issued any written discipline

under WellStar’s progressive discipline plan, which is distinct from the company’s

PIPs. Betts recommended that Brown document the status of Godwin’s alleged

deficiencies in a progressive discipline format.

      On approximately June 1, 2011, Tifft—Godwin’s direct supervisor prior to

Brown’s arrival and Brown’s direct supervisor at the time—went on medical leave.

Prior to going on leave, Tifft talked with Brown about the next steps involved in

Godwin’s PIP. Tifft reviewed the errors Brown identified with Godwin’s purchase

orders and agreed that the number and consistency of errors warranted her being

placed on a PIP. Tifft knew it was possible Godwin’s employment would be



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terminated while he was on leave. Godwin testified that Tifft said Brown “better

not” terminate Godwin before he returned from leave. 10

      On June 3, 2011, Brown issued a “First Notice and Warning that additional

infraction[s] may lead to Final Notice, Suspension or Discharge” (the “June 2011

First Notice”). In the June 2011 First Notice, Brown wrote that Godwin continued

to make the errors identified in her PIPs. The June 2011 First Notice read, as

follows:

      [Godwin] is currently on a [second] consecutive Performance
      Improvement Plan. Two PIP updates have been provided on the FY
      2011 Plan (3/28/11 & 5/4/11). At each update [Godwin] has been
      presented with data illustrating the various errors on Purchase Orders
      she issues. The errors continue to occur. This counseling report
      formally reflects that [Godwin] has been informed of the continued
      errors.

      On June 17, 2011, Brown created another non-standard “Performance

Summary” document, in which she again recommended that WellStar terminate

Godwin. In the document, Brown stated that Godwin “had a defensive posture

when [others were] attempting to counsel [her] on performance.” This was

inconsistent with Brown’s earlier observation in her mid-year evaluation that

Godwin had “a willingness to correct poor performance.”

      While Tifft was out, Trupiano had weekly meetings with Brown to discuss

the operations of the purchasing department and the performance of the employees


      10
           Tifft does not recall making that statement.


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in that department, including Godwin. Brown recommended that WellStar

terminate Godwin’s employment. At this time, Trupiano was aware of the

comments Brown made about Godwin’s age, Godwin’s complaint against Brown,

and the investigation made into the complaint. However, Trupiano was not

working directly with Godwin.

      Trupiano was aware that Godwin had received multiple PIPs and knew that

Godwin’s former supervisor believed Godwin’s performance failed to meet

expectations. Trupiano also claims to have received complaints about Godwin’s

performance. When Trupiano and Brown discussed terminating Godwin’s

employment, Trupiano reviewed a number of Godwin’s purchase orders to confirm

that the problems were ongoing within the past couple of weeks and occurring at

an unacceptable frequency.

      However, Trupiano testified that all of the information he reviewed

regarding Godwin’s termination (including the purchase orders) came from Brown

and that he did not conduct an independent investigation to verify that the

information was complete or accurate.11 When asked whether he would have

terminated Godwin’s employment in the absence of Brown’s recommendation,

Trupiano testified, “Would I have terminated her on my own? She was not a direct
      11
       The relevant portion of Trupiano’s deposition transcript reads, in full:
      Q     So you did not actually conduct an independent investigation to verify the
            completeness or accuracy of the information that Ms. Brown was giving you
            concerning Mary Godwin, did you?
      A     I did not.


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report, and I would not have.”12 Brown, who admitted that buyers regularly made

errors in purchase orders, did not know whether Godwin made more errors than

other buyers. Likewise, Brown did not provide Trupiano with information

regarding purchase order errors for any other buyer, and Trupiano did not know

how Godwin’s rate of errors compared to other buyers.

      The record does not contain copies of Godwin’s purchase orders that Brown

selected and gave to Trupiano or even how many orders were shown. In the light

most favorable to Godwin, there was no independent investigation by Trupiano

regarding Godwin’s error rate or how it compared to other employees who were

buyers.

      Eventually, Trupiano informed Betts that he and Brown wanted to move

forward with terminating Godwin’s employment due to her ongoing performance

problems. Betts did not object to the decision.

      Brown called Tifft, who was still out on medical leave, and told him that

WellStar was moving forward with the termination of Godwin’s employment.

      12
       The relevant portion of Trupiano’s deposition transcript reads, in full:
      Q     If Cherise Brown hadn’t come to you and recommended Ms. Godwin’s
            termination, would you have terminated her?
      A     If you’re asking if I support the termination, I would have, yes.
      Q     That’s not what I’m saying.
      A     Okay. What are you asking?
      Q     I’m asking you a “but for” question. If Cherise Brown had not come to
            you and recommended Ms. Godwin’s termination, would you have
            approved her termination or would you have terminated her on your own?
      A     Would I have approved? Yes. Would I have terminated her on my own?
            She was not a direct report, and I would not have.


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Tifft said he “wasn’t in much shape to say anything” and did not do any

independent investigation to determine if Godwin’s performance at the time of her

termination was subpar.

      On June 22, 2011, Brown informed Godwin that her employment was

terminated. WellStar replaced Godwin by hiring Bart Weddington, a male in his

twenties.

                     II. PROCEDURAL BACKGROUND

      On October 26, 2012, Godwin filed a four-count complaint against WellStar,

alleging age discrimination in violation of the Age Discrimination in Employment

Act (the “ADEA”), 29 U.S.C. §§ 621–634 (“Count I”); retaliation in violation of

the ADEA (“Count II”); discrimination based on a failure to accommodate in

violation of the Americans with Disabilities Act (the “ADA”), 42 U.S.C.

§§ 12101–12213 (“Count III”); and retaliation in violation of the ADA (“Count

IV”). Godwin sought, inter alia, back pay and benefits, reinstatement or front pay,

liquidated damages under the ADEA, and compensatory and punitive damages

under the ADA.

      After WellStar answered, Godwin deposed seven WellStar employees,

including Brown and Trupiano.

      On July 29, 2013, WellStar filed a motion for summary judgment. In its

motion, WellStar conceded that Godwin established a prima facie case on her age



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discrimination claim but argued that its evidence established “a legitimate non-

discriminatory reason for the adverse employment action.” WellStar also argued

that Godwin failed to provide sufficient evidence to show that its non-

discriminatory reason was pretext for age discrimination.

      On August 22, 2013, Godwin filed a response in opposition to WellStar’s

motion for summary judgment. Godwin attached to her response an exhibit from

her co-worker, Lynn Bryant. Bryant reviewed purchase orders by Godwin and

four other buyers, and she concluded that all five had similar error rates. Three of

the other four remained as employees at WellStar through August 22, 2013.

      In a March 27, 2014 order, the district court granted WellStar’s motion for

summary judgment on all counts of Godwin’s complaint. Godwin timely

appealed.

                          III. STANDARD OF REVIEW

      We review de novo a district court’s decision to grant or deny summary

judgment. Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). We review

the facts in the light most favorable to the non-moving party and draw all

reasonable inferences in that party’s favor. Crawford v. Carroll, 529 F.3d 961, 964

(11th Cir. 2008). “Summary judgment is appropriate only 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.’” Moton, 631 F.3d at 1341 (quoting Fed. R. Civ. P.



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56(a)). “The moving party may meet its burden to show that there are no genuine

issues of material fact by demonstrating that there is a lack of evidence to support

the essential elements that the non-moving party must prove at trial.” Id.

      To survive a motion for summary judgment, the non-moving party must

offer more than a “mere scintilla of evidence.” Brooks v. Cnty. Comm’n of

Jefferson Cnty., Ala., 446 F.3d 1160, 1162 (11th Cir. 2006) (quotation marks

omitted). Rather, “there must be enough of a showing that the jury could

reasonably find for that party.” Id. (quotation marks omitted).

                                  IV. THE ADEA

      On appeal, Godwin points to substantial evidence of Brown’s age-based

animus. Under the cat’s paw doctrine, Godwin contends that her evidence created

genuine issues of material fact (1) as to whether Trupiano merely rubberstamped

Brown’s termination recommendation or conducted an independent investigation

before terminating Godwin, and (2) as to whether Brown’s recommendation was

the but-for cause (that is, the determinative cause or determinative influence) in

Trupiano’s firing of Godwin. See Sims v. MVM, Inc., 704 F.3d 1327, 1335–36

(11th Cir. 2013).

A.    General Principles

      “The ADEA prohibits employers from discharging an employee who is at

least 40 years of age because of that employee’s age.” Id. at 1331 (citing 29



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U.S.C. §§ 623(a)(1), 631(a)). The language “because of” in the ADEA statute

means that the plaintiff must prove that the age discrimination was the “but for”

cause of the adverse employment action. Gross v. FBL Fin. Servs., Inc., 557 U.S.

167, 176, 129 S. Ct. 2343, 2350 (2009); Sims, 704 F.3d at 1332.

      A plaintiff may show age discrimination through direct or circumstantial

evidence. Sims, 704 F.3d at 1332 (citing Mora v. Jackson Mem’l Found., Inc., 597

F.3d 1201, 1204 (11th Cir. 2010)).

      Where a plaintiff brings claims under the ADEA, “we analyze the allocation

of burdens and the presentation of proof under the framework articulated” in

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 797, 93 S. Ct. 1817, 1821

(1973). Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012).

“Following Gross, we have continued to evaluate ADEA claims based on

circumstantial evidence under the McDonnell Douglas framework.” Sims, 704

F.3d at 1332; see also id. at 1333 (summarizing other circuits’ continuing

application of McDonnell Douglas after Gross).

      Under McDonnell Douglas, a plaintiff must first establish a prima facie case

of discrimination, “which ‘in effect creates a presumption that the employer

unlawfully discriminated against the employee.’” Kragor, 702 F.3d at 1308

(quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct.




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1089, 1094 (1981)); see Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir.

2000) (en banc).

      To make out a prima facie case of age discrimination under the ADEA, a

plaintiff must show (1) “that she was a member of the protected group of persons

between the ages of forty and seventy”; (2) “that she was subject to adverse

employment action”; (3) “that a substantially younger person filled the position

that she sought or from which she was discharged”; and (4) “that she was qualified

to do the job for which she was rejected.” Kragor, 702 F.3d at 1308 (quotation

marks omitted).

      Once a plaintiff establishes a prima facie case of age discrimination, the

burden shifts to the employer to rebut the presumption with evidence of a

legitimate, non-discriminatory reason for the adverse employment action. See id.;

Chapman, 229 F.3d at 1024. Because the burden is one of production, not

persuasion, the defendant meets its burden by presenting evidence that “raises a

genuine issue of fact as to whether” the legitimate, non-discriminatory reason was

the true reason for the adverse employment action. Kragor, 702 F.3d at 1308.

      If the employer produces a legitimate, non-discriminatory reason for the

adverse action, the plaintiff “must introduce significantly probative evidence

showing that the asserted reason is merely a pretext” in order to survive a motion

for summary judgment. Brooks, 446 F.3d at 1163. To establish pretext, a plaintiff



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must show both that the reason given by the employer was false and that

discrimination was the real reason. See id. The plaintiff can establish 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.” Burdine, 450 U.S. at 256, 101 S. Ct. at

1095. Ultimately, however, a plaintiff must show that the discriminatory reason

was the but-for cause of the adverse employment action. See Gross, 557 U.S. at

177, 129 S. Ct. at 2351; Sims, 704 F.3d at 1335.

      Importantly, throughout this entire process, the ultimate burden of

persuasion remains on the employee. Sims, 704 F.3d at 1333. Although post-

Gross, we still use the McDonnell Douglas framework in ADEA cases, “this

framework is not the sine qua non for a plaintiff to survive summary judgment in a

discrimination case.” Id.; Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328

(11th Cir. 2011). Instead, the plaintiff must still present evidence that creates a

triable issue concerning the employer’s discriminatory intent. Sims, 704 F.3d at

1333; Smith, 644 F.3d at 1328.

B.    The “Cat’s Paw” Doctrine

      Before evaluating the evidence, we review the “cat’s paw” doctrine because

Godwin must prove that Brown’s age-based animus was the but-for cause of, or

the determinative influence on, Trupiano’s termination decision. See Sims, 704



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F.3d at 1335–36 (describing the but-for cause as the determinative cause or

determinative influence).

      Under certain circumstances, a plaintiff can establish but-for causation even

where the person who ultimately decided to take the adverse employment action

was neutral and unbiased. See Stimpson v. City of Tuscaloosa, 186 F.3d 1328,

1332 (11th Cir. 1999) (citing Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d

1236, 1249 (11th Cir. 1998)). Under the cat’s paw doctrine, a plaintiff may

establish but-for causation if she shows that the unbiased decision-maker (here

Trupiano) followed a “biased recommendation without independently investigating

the complaint against the employee.” Id. “In such a case, the recommender is

using the decisionmaker as a mere conduit, or cat’s paw[,] to give effect to the

recommender’s discriminatory animus.” Id. (quotation marks omitted). In the

past, this Court has analyzed whether the ultimate decision was merely a “rubber

stamp” of the recommendation when considering whether the decision-maker acted

as a “cat’s paw.” See id.

      More recently, the Supreme Court addressed the cat’s paw doctrine in a case

brought under the Uniformed Services Employment and Reemployment Rights Act

of 1994 (“USERRA”), 38 U.S.C. § 4311. Staub v. Proctor Hosp., 562 U.S. 411,

131 S. Ct. 1186 (2011). USERRA provides that members of uniformed services

“shall not be denied initial employment . . . or any benefit of employment by an



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employer on the basis of” their membership in a uniformed service. 38

U.S.C. § 4311(a). However, USERRA further provides that an employer acts

unlawfully under § 4311(a) when a person’s membership in a uniformed service

“is a motivating factor in the employer’s action.” Id. § 4311(c)(1) (emphasis

added). 13

       In Staub, the Supreme Court held that, “if a supervisor performs an act

motivated by [prohibited] animus that is intended by the supervisor to cause an

adverse employment action, and if that act is a proximate cause of the ultimate

employment action, then the employer is liable under USERRA.” Id. at ___, 131

S. Ct. at 1194 (footnote omitted).

C.     Applying the Cat’s Paw Doctrine in post-Staub ADEA Cases

       This Court has already reviewed Staub and held that its “motivating factor”

standard does not apply to cat’s paw cases involving age discrimination. Sims, 704

F.3d at 1336. In Sims, this Court noted that “the text of the USERRA and the

ADEA differ in important respects.” Id. at 1335. Specifically, this Court noted

that “the ADEA states that it is unlawful if an employee suffers adverse

employment action ‘because of such individual’s age,’” id. (quoting 29 U.S.C. §


       13
          USERRA covers any “person who is a member of, applies to be a member of, performs,
has performed, applies to perform, or has an obligation to perform service in a uniformed
service.” See 38 U.S.C. § 4311(a).
        As in Sims, we need not decide and do not decide here whether Staub changes in any way
our prior cat’s paw ADEA cases with respect to agency principles as they relate to scienter. See
Sims, 704 F.3d at 1336.


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623(a)(1)), whereas USERRA’s causation standard requires only that the unlawful

animus was a “motivating factor,” id. (quoting 38 U.S.C. § 4311(c)). 14

Accordingly, the Sims Court stated, a plaintiff alleging violations of the ADEA

“must prove that age was the ‘but-for’ cause of the employer’s adverse decision,”

which “requires that the proscribed animus have a determinative influence on the

employer’s adverse decision.” Id. at 1335–36 (quotation marks omitted) (emphasis

added). 15 In addition, this Court has interpreted the ADEA’s causation standard as

requiring more than a mere causal link between an action motivated by unlawful

animus and the adverse employment action.

       Thus, in order to succeed under a cat’s paw theory of liability, an ADEA

plaintiff must show more than that her adverse employment action would not have

occurred in the absence of the action taken by the individual (Brown) with the

alleged unlawful animus. Rather, the plaintiff must show that the biased

individual’s action had a “determinative influence” on the ultimate decision, see

Sims, 704 F.3d at 1335–36, or was a “determinative cause,” see Simmons, 647


       14
          In Sims, this Court pointed out that the Tenth Circuit in Simmons v. Sykes Enterprises,
Inc., 647 F.3d 943 (10th Cir. 2011), held that Staub’s causation analysis did not govern claims
brought under the ADEA. See Sims, 704 F.3d at 1336 (citing Simmons, 647 F.3d at 949–50).
The Tenth Circuit stated that, “even after Staub, an ADEA plaintiff seeking to hold an employer
liable through the discriminatory conduct of its subordinate must show the subordinate’s animus
was a ‘but-for’ cause of the adverse employment action, i.e. it was the factor that made a
difference.” Simmons, 647 F.3d at 949–50.
       15
          As in Sims, we need not decide anything more about Staub’s potential effect, if any, on
other issues in ADEA cases. See Sims, 704 F.3d at 1336.


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F.3d at 950. And the but-for cause that a biased individual recommended that the

plaintiff’s employment be terminated does not constitute a “determinative cause”

where “undisputed evidence in the record supports the employer’s assertion that it

fired the employee for its own unbiased reasons that were sufficient in themselves

to justify termination.” See id. at 950.

   V. GODWIN’S AGE DISCRIMINATION CLAIM UNDER THE ADEA

      In this case, the record creates genuine issues of material fact as to whether

WellStar discriminated against Godwin, in violation of the ADEA, under the cat’s

paw doctrine. If a jury believes plaintiff Godwin’s evidence, a reasonable jury

could find that Trupiano did not conduct an independent investigation and that

Brown’s recommendation was the “but-for” cause of, or the determinative

influence on, Trupiano’s decision.

      The record contains ample evidence to create genuine issues of material fact

as to whether Brown recommended termination of Godwin because of

discriminatory age-based animus. Brown admits that she asked Godwin her age.

And Godwin alleges that Brown made several ageist comments, including (1)

asking Godwin why, at her age, was she still working; (2) stating that, at Godwin’s

age, she should be home with her husband; (3) saying that Godwin should have

planned for certain expenses when she was young; (4) stating that Godwin was not

“capable of mentally understanding” her job; (5) saying that Godwin should



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probably be home with her husband because he was ill; and (6) stating that Brown

was “going to put [Godwin] out to pasture.”

      Furthermore, Tifft’s testimony indicates that Brown admitted that she said

Godwin should have made provisions for being out of work when she was young,

and that Brown knew she “messed up” by making that comment. And although

Brown claims to have been trying to give Godwin “options” by asking why

Godwin was working “past retirement age” and stating that, in light of Godwin’s

age, she thought Godwin would want to be home taking care of her husband, Tifft

agreed that a reasonable interpretation of Brown’s comments is that she was trying

to suggest “retirement options.”

      Godwin also presented evidence that at least one other employee—

Carpenter, who was interviewed as part of the investigation into Godwin’s

complaint to human resources—thought that Brown was “trying to get rid of her

because of her age.” And a separate employee allegedly said that Brown was

trying to sabotage Godwin.

      Based on this record evidence, there are at least genuine issues of material

fact as to whether Brown was motivated by age and as to whether she intended the

precise adverse employment action taken here—namely, termination.

      Similarly, the record contains sufficient evidence to create a genuine issue of

material fact as to whether Brown’s recommendation had the determinative



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influence on Trupiano’s recommendation. Drawing all reasonable inferences in

favor of Godwin, a jury could conclude that Trupiano would not have fired

Godwin but for Brown’s recommendation. When asked whether he would have

terminated Godwin’s employment in the absence of Brown’s recommendation,

Trupiano testified, “Would I have terminated her on my own? She was not a direct

report, and I would not have.” This testimony, viewed in the light most favorable

to Godwin, taken with the other extensive evidence in this case, establishes a

causal link between Brown’s recommendation and Trupiano’s ultimate decision.

      In addition, there is sufficient evidence to create an issue of material fact as

to whether Brown’s recommendation so permeated Trupiano’s review of Godwin

that Trupiano failed to conduct a truly independent investigation. Although

Trupiano reviewed a number of Godwin’s purchase orders before making the

decision to fire her, the evidence, viewed in the light most favorable to Godwin,

suggests that Brown herself chose from Godwin’s file the purchase orders that

Trupiano reviewed. Trupiano testified that he did not conduct an independent

investigation to verify the completeness or accuracy of the information that Brown

gave him. As a result, Trupiano did not know the percentage or ratio of Godwin’s

purchase orders that had errors. Furthermore, Trupiano did not review purchase

orders by other buyers in the purchasing department. Trupiano admitted that he

had “no direct knowledge” of the quantity of mistakes made by other purchasing



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department buyers. And he did not know how Godwin’s error rate compared to the

error rates of other buyers. 16

        In addition, Bryant, Godwin’s co-worker, reviewed purchase orders by

Godwin and four other buyers, and she concluded that all five had similar error

rates. Although Godwin was fired, three of the other four remained as employees

at WellStar through August 22, 2013, and the fourth worked at WellStar until June

2013.

        Put simply, viewing the evidence in the light most favorable to Godwin and

drawing all reasonable inferences in Godwin’s favor, the record evidence creates

genuine issues of material fact as to whether Brown’s recommendation was the

result of age-based animus and whether that recommendation had the

determinative influence on Trupiano’s ultimate decision to fire Godwin.

                                  VI. CONCLUSION

        For all the foregoing reasons, we reverse the district court’s order granting

WellStar’s motion for summary judgment on Godwin’s age discrimination claim

but affirm as to all other claims made by Godwin.

        AFFIRMED IN PART AND REVERSED IN PART.




        16
       Indeed, although Brown made the recommendation to fire Godwin, even she did not
know whether Godwin made more errors than other buyers.


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