                                                              [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                      FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                 March 31, 2008
                                No. 05-15538                   THOMAS K. KAHN
                          ________________________                  CLERK


                     D. C. Docket No. 04-00755-CV-CC-1


GEETHA SAMPATH,


                                                                Plaintiff-Appellant,

                                      versus

IMMUCOR, INC.,

                                                              Defendant-Appellee.


                          ________________________

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

                                (March 31, 2008)

Before BIRCH, PRYOR and FAY, Circuit Judges.

PER CURIAM:

     Plaintiff-appellant, Geetha Sampath, appeals the district court’s grant of
summary judgment in favor of defendant-appellee, Immucor, Inc., as to Sampath’s

employment discrimination claims. Sampath argues that the district court ignored

evidence that would have demonstrated pretext and improperly determined that her

demotion did not constitute an adverse employment action. We AFFIRM.

                               I. BACKGROUND

      In 1999, Sampath began work as a contract consultant for Immucor. She

was hired as supervisor of software in the information systems (“IS”) department

in July 2000. In August 2001, she took the position of Director of the IS

department. She became pregnant the following November and immediately

informed her supervisor, Steve Ramsey, Immucor’s chief financial officer.

      Sampath received her first performance evaluation from Ramsey in

December 2001. Although Ramsey told Sampath orally that he was pleased with

her work and had received only good reports from others, his written evaluation

rated her performance as below expectations. Ramsey explained that this

discrepancy arose from the fact that the written evaluation was based upon the

performance of the entire IS department.

      In May 2002, Sampath was restricted to bed rest by complications with her

pregnancy. Around this time, Ernst & Young was preparing to perform its annual

audit of Immucor. This audit included an examination of software applications to



                                           2
ensure the accurate processing of financial information. With Sampath at home,

Ramsey assigned Casey Brost, an IS engineer, to coordinate the software audit.

       After an initial meeting with Jill Cleaveland and Sara Baumhofer, the

software auditors, Brost assigned responsibilities within the IS department for

providing information required by the auditors. He introduced the auditors to

Vicki Flier, a member of the IS team, and to Sampath, who had reported to work

for a few hours on her own initiative to help answer questions the auditors might

have about the change control documentation for the BAAN financial software

system, about which she knew more than anyone in the department. Flier and

Sampath showed the auditors the Helpdesk and Issue Log, both documents used by

Immucor to track changes made to the BAAN system. Neither Flier nor Sampath

restricted the auditors’ access to information during this demonstration. However,

because the information contained in the Helpdesk and Issue Log was extensive,

the auditors requested a summary of the software changes that had a financial

impact.1 Brost testified that he instructed Sampath and Flier to create a summary.

Flier testified that, at Sampath’s instruction, she created a list of 11 software



       1
        According to Cleaveland, when the auditors indicated that they would need a list of “all
the changes from January to present in the BAAN application so that [they could] choose [their]
sample from that selection,” Sampath showed them the Helpdesk and Issue Log on her
computer, and then, because it was so extensive, volunteered to put the information in a “more
readable format.” R-Exh. 117 at 39-40.

                                                3
changes entitled “Summary of Financial Changes in Baan IV C4.” R-Exh. 111 at

91, 104, 120, Exhs. 2, 3. Flier further testified that she culled the information to be

included in the Summary on the ground she had clarified with the auditors at the

beginning: whether there was a “finance impact” related to the change. Id. at 77-

78. After creating the Summary, Flier emailed it to both Brost and Sampath for

review. Sampath, who was back at home, made only a few minor changes to

wording and sent the document on to Brost only twenty minutes later, asking him

to review it. Brost testified that he did not believe it was his responsibility to

review the Summary for more than “form” and “structure.” R-Exh. 116 at 153,

Exh. 62. Accordingly, four minutes after receiving Sampath’s revision and having

had the document for just under half an hour, Brost responded to Flier’s original

message that the Summary looked fine. Flier gave it to the auditors.2 The auditors

tested the changes and found controls to be adequate.

       Sampath began her maternity leave on 16 June 2002. On 1 July, Ramsey

announced a reorganization of the IS department under which Sampath would



       2
          Cleaveland testified that, when they were handed the Summary, she and Baumhofer had
understood it to be a summary of the entire population of individual changes, not just a summary
of overall changes made to BAAN. She also testified that she and Baumhofer had specifically
asked Flier or Sampath whether the document included all changes and that they had confirmed
that it did. Flier and Sampath, on the other hand, both testified that they believed the auditors
had wanted the information on changes culled based on whether there was any financial impact.
Flier also testified that she gave the auditors the Helpdesk, the modification specification book
containing every change made to the system, and the data migration protocol.

                                                4
manage the software side and Brost would manage the hardware side. Ramsey

explained that the reorganization was only temporary and was designed to address

particular needs for improvement within the department. He stated that he

expected Sampath would reassume responsibility for both sections when she

returned from maternity leave. Her salary, benefits, and hourly work requirements

were unchanged by the reorganization. Her job title also remained unchanged.

Although Sampath contends that her title was changed from Director of IS to

Manager of Software, she never actually worked as Manager because she was

terminated while she was still on maternity leave. Also, she acknowledges that

both her resume and her job application for the position she currently holds list her

last position at Immucor as Director of IS.

      In mid-July, with the financial audit in full-swing, the auditors informed

Lynne Johnson, Assistant Controller for Immucor, that they required additional

support for $500,000 capitalized as software costs attributable to the program

changes made to BAAN. Johnson called Sampath at home. The record accounts

of their conversation vary, but that Johnson reported her account of the

conversation to Ramsey by memo is not disputed. Johnson’s memo describes how

Sampath told Johnson she had worked many hours (over a weekend, etc.)

reviewing and revising the Issue Log for the auditors because she was concerned



                                          5
that it contained information that would look bad to an IS professional. Johnson

reported that Sampath had suggested that before Johnson gave a copy of the Issue

Log to Ernst & Young, she should “hide” the “Reason” column on the spreadsheet.

R-Exh. 114 at Exh. 50.

       Ramsey testified that Johnson’s report of this conversation acted as a “red

flag” and that he called the auditors to ask for a copy of all information that had

been provided regarding software.3 R-Exh. 115 at 87, 152. The only thing Ernst &

Young gave him was a copy of the Summary. Ramsey and Martin Pinne, the

software audit manager from Ernst &Young, sat down together and compared the

Summary to the Helpdesk and Issue Log. The two of them concluded that there

were major changes not reflected in the Summary. Based on these discrepancies,

Pinne told Ramsey that the auditors would need to retest the IS department

controls.

       After discovering the omissions in the Summary, Ramsey asked Cleaveland

which member of the IS department had provided her the document. She told him

that it had come from Flier. Ramsey explained that because Sampath was the

expert on BAAN and directly supervised Flier, he believed the document to have



       3
       Ramsey repeatedly clarified that his decision to terminate Sampath was not based in any
way on Johnson’s memo, which served only as a “red flag” initiating his further investigation.
R-Exh. 115 at 151-52, 284.

                                              6
been created at Sampath’s direction and that she was responsible for the omissions.

      During the re-audit, Flier emailed Ramsey to explain that Cleaveland and

Baumhofer had requested only changes that had a financial impact and that Ernst

& Young had been sent the Helpdesk along with the Summary. Flier also

explained that Sampath had created a report from the Helpdesk based on the

criteria given by the auditors. Ramsey testified that he never discussed this email

with Flier, that he did not believe she was “capable” of creating the Summary on

her own, and that he did “not trust [her].” R-Exh. 115 at 219, 229, 235.

Accordingly, he did not consider her email in making his decision regarding

Sampath.

      On 6 August 2002, Brost sent Ramsey a memo stating that Sampath and

Flier had been tasked with gathering the required information related to BAAN. In

the memo, he also, incorrectly, stated that he had not reviewed the Summary before

it had been given to the auditors. He later sent another memo to Ramsey

explaining that Ernst & Young had expressed their discomfort in dealing further

with Sampath, but noted that they were quite willing to trust information provided

by him. Ramsey testified that he did not rely on the information in either of

Brost’s memos when he made his determination about Sampath because he

considered it to be “self-serving.” Id. at 181-82. Ramsey also explained that,



                                          7
although he was aware that Brost had actually reviewed the Summary before it had

gone to the auditors, he was convinced, given Brost’s limited experience with

BAAN, that Brost’s review had been only “cursory.” Id. at 188.

       The re-audit showed no significant problems with Immucor’s controls.

Afterwards, according to Cleaveland’s deposition, during a 9 August 2002

conference call with Ramsey and the other auditors, Cleaveland told Ramsey that

she believed the auditors had initially been given incomplete information. She also

explained that, because Sampath had been through audits before, and because the

auditors had clarified which information they wanted, they did not see how

Sampath could not have known that she had not given them everything they

requested. R-Exh. 117 at 230. Ramsey testified that Cleaveland told him, during

this call, that she thought Sampath had steered the auditors away from the

Helpdesk and Issue Log with the Summary.4 R-Exh. 115 at 137. He explained

       4
         Sampath disputes this. However, as the Magistrate Judge correctly observed, although
Sampath makes much of discrepancies in testimony regarding the 9 August conference call, the
actual differences come to only minor variations in expression. Although Cleaveland never
testified specifically that she had told Ramsey she believed she had been “steered away” from
the Helpdesk data, she did explain, in answer to a question regarding her beliefs about Sampath’s
intent, that she had told Ramsey she could not imagine that Sampath didn’t realize she was
giving the auditors less than complete information. R-Exh. 117 at 229-30. This is consistent
with Ramsey’s statement, albeit worded slightly differently. It is certainly not a denial thereof.
Similarly, Cleaveland’s testimony that she told Ramsey the auditors “did not feel like [they]
were given what [they] were asking for from this . . . whole situation,” id. at 226, and that they
“needed . . . to check into every avenue that [they] felt possible that [Sampath] or [Flier], for that
matter . . . could have done,” id. at 228-29, is not inconsistent with the assertion that she had
told him “Sampath was responsible for misleading the auditors.” Appellant’s Br. at 33. Finally,
although Cleaveland’s testimony (taken over two years after the conversation at issue) does not

                                                  8
that he then concluded, based on “[his] investigation and discussions with Ernst &

Young,” that Sampath had given the auditors materially incomplete information,

and that she needed to be terminated for that reason. Id. at 152.

       Ramsey terminated Sampath’s employment on 16 August 2002. He

explained that he did not also terminate Flier because he believed her involvement

had been only “minor.” Id. at 280. Similarly, he did not terminate Brost because

he believed Brost’s review of the Summary had been only “cursory.” Id. at 226,

280. Ramsey promoted Brost to replace Sampath in her original position on 2

September 2002.

       After pursuing a charge through the EEOC, Sampath filed a complaint

against Immucor under Title VII, 42 U.S.C. § 2000e et seq. She complained that

she had been discriminated against because she was pregnant. After receiving a

report and recommendation from the magistrate judge, the district court found that

Sampath had failed (1) to show that she had suffered an adverse employment

action during the restructuring of the IS department, and (2) to rebut the legitimate

non-discriminatory reason given by Immucor for her termination – that Ramsey

believed Sampath had intentionally provided materially incomplete information to



reflect that she ever specifically told Ramsey that Ernst & Young would, from then on, treat all
information received from Sampath with suspicion, she did testify that she told him that Ernst &
Young would “treat everything kind of under a microscope.” R-Exh. 117 at 229.

                                               9
the auditors. The district court therefore granted summary judgment in favor of

Immucor.

         On appeal, Sampath argues that (1) the record shows Ramsey’s reasons for

terminating her were pretextual because she was not actually responsible for the

Summary and therefore Ramsey could not have held a good-faith belief in the

legitimacy of his reasons; (2) other employees – particularly Brost and Flier – were

sufficiently similarly situated to Sampath for the purpose of demonstrating

disparate treatment; and (3) her assignment during the temporary reorganization of

the IS department constituted a separate adverse employment action.

                                  II. DISCUSSION

         We review a district court’s grant of summary judgment de novo. Durley v.

APAC, Inc., 236 F.3d 651, 655 (11th Cir. 2000). Summary judgment is

appropriate when “there is no genuine issue as to any material fact and . . . the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). “In

examining the record, we view the evidence in the light most favorable to the non-

moving party.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir.

2004).

         For a pregnancy discrimination claim, we use “the same type of analysis

used in other Title VII sex discrimination suits.” Armindo v. Padlocker, Inc., 209



                                          10
F.3d 1319, 1320 (11th Cir. 2000) (per curiam). As in other Title VII cases, a

plaintiff may use either direct or circumstantial evidence to establish disparate

treatment discrimination. Wilson, 376 F.3d at 1085.

       When a disparate treatment claim is supported by circumstantial evidence,

we evaluate it according to “the framework established . . . in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), and Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981).” Wilson,

376 F.3d at 1087. Thereunder, a plaintiff must first establish a prima facie case of

discrimination.5 Id. This creates a rebuttable presumption of illegal action which

shifts the burden to the employer to produce one or more legitimate, non-

discriminatory reasons for the offending actions. Id. Production of a legitimate,

non-discriminatory reason shifts the burden of production back to the plaintiff to

offer evidence that the proffered reason is, in fact, pretext for illegal

discrimination. Id. To show pretext, a plaintiff must demonstrate “such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in


       5
        A prima facie case of discrimination is established when a plaintiff shows that she: (1)
was a member of a protected class, (2) was qualified for the job she held, (3) suffered an adverse
employment action, and (4) suffered from a differential application of work or disciplinary rules.
Spivey v. Beverly Enters., Inc., 196 F.3d 1309, 1312 (11th Cir. 1999). Sampath was pregnant
and thus protected against discrimination on the basis of her sex, as defined under 42 U.S.C. §
2000e(k). There is no dispute over her qualifications for the job she held. She was discharged.
No one else involved with the production of the Summary was discharged. Finally, Sampath
was replaced by Brost, who was not pregnant. Immucor does not dispute that Sampath has
thereby established a prima facie case of pregnancy discrimination.

                                                11
the employer’s proffered legitimate reasons for its action that a reasonable

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

106 F.3d 1519, 1538 (11th Cir. 1997) (quotation omitted). Ultimately, if “the

proffered reason is one that might motivate a reasonable employer, [the plaintiff]

must meet that reason head on and rebut it. Chapman v. AI Transport, 229 F.3d

1012, 1030 (11th Cir. 2000) (en banc).

A. Termination

      In this case, rather than disputing Sampath’s establishment of a prima facie

case of discrimination, Immucor asserts that Ramsey terminated Sampath for a

legitimate, non-discriminatory reason: providing incomplete and misleading

information to the Ernst & Young auditors. Therefore we are left to determine

whether Sampath has shown that this reason was actually pretext for discrimination

based on her pregnancy.

      Initially, we observe that most of Sampath’s arguments address the accuracy

of Ramsey’s determination that she was materially involved in the audit rather than

Ramsey’s good-faith belief regarding her involvement. She points out, for

instance, that Brost had ample opportunity to review the Summary before it went to

the auditors and that Flier was largely responsible for the Summary’s creation.

However, the question is not whether Brost or Flier were more responsible for



                                          12
inaccuracies or incompleteness than Sampath, but whether Ramsey honestly

believed that Sampath was primarily responsible. Sampath’s evidence of the

greater involvement of Brost and Flier does not rebut head on Ramsey’s testimony

that he believed (1) that Brosts’s review was only cursory and (2) that Flier was

incapable of having generated the Summary on her own. See id. at 1030. Sampath

points to no evidence to establish that Ramsey had actual knowledge of the precise

level of involvement of either Brost or Flier. Accordingly, Sampath fails to show

discriminatory intent by pointing out Ramsey’s disparate treatment of Brost and

Flier. See Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d 1181, 1186 (11th Cir.

1984) (“If an employer applies a rule differently to people it believes are

differently situated, no discriminatory intent has been shown.”) (quotation and

alteration omitted).

      Sampath also attacks the legitimacy of Ramsey’s belief that information was

intentionally kept from the auditors. She focuses on two primary pieces of

evidence: the title of the Summary and Flier’s email to Ramsey. However, neither

makes it impossible for Ramsey to have believed that the Summary was intended

to keep information from the auditors. To the contrary, first, the term Summary is

ambiguous. It could have indicated a report containing a summarized listing for

each change, or a shorter list of only the most important changes according to



                                          13
certain criteria. Second, nothing in Flier’s email necessarily precludes a belief that

the Summary was intended to hide information. Additionally, the information in

the email regarding what had been provided to the auditors directly conflicts with

what Ramsey had been told by Pinne, Cleaveland, and even Johnson (an Immucor

employee).6 Finally, the record reflects that the auditors told Ramsey that they had

attempted to confirm that the Summary included a list of the total population of

changes, that they had been assured by Sampath or Flier that it did, and had later

learned that it actually had not.

       The evidence to which Sampath points also fails to establish that it was

impossible for Ramsey in good faith to have believed that Sampath was

responsible for the missing information. Although Ramsey did know that Sampath

was not on site during the majority of the audit, he testified that he believed Flier

was working under Sampath’s close direction. Sampath points to no evidence that

Ramsey had actual knowledge contradicting this belief. Further, Sampath was

herself in the office for several hours while the auditors were present and Ramsey

had received a report from Johnson, whether true or not, that Sampath had spent

several hours working on a document for the auditors. As for Brost, although



       6
        Although Johnson and Sampath’s accounts of their phone conversation vary, they agree
that Johnson called Sampath because the auditors claimed not to have all the information they
needed.

                                              14
Ramsey was aware that Brost had reviewed the Summary, he also understood that

Brost’s knowledge of BAAN was limited, thereby leading to Ramsey’s belief that

Brost’s review of the Summary had been only cursory. Finally, the record shows

that the auditors explained to Ramsey that they did not see how, given Sampath’s

extensive history of participating in Ernst & Young’s previous audits of Immucor,

she would not have known the Summary did not contain all the requested

information. R-Exh. 117 at 226, 230.

        Similarly, the record fails to support Sampath’s assertion that it was Ramsey

who first suggested to the auditors that Sampath was responsible for withholding

information, thereby biasing his own investigation. The discrepancies in the

various accounts of the 9 August conference call are minor and insufficient to

create a question of fact as to whether Ramsey actually believed Sampath had

withheld information. For all of these reasons, we agree with the district court that

Sampath failed to point to “weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions” sufficient to rebut the legitimate reasons given by

Immucor for her termination. See Combs, 106 F.3d at 1538; Chapman, 229 F.3d at

1030.

B. Departmental Reorganization

        Sampath also argues that her reassignment as manager of the software side



                                          15
of the IS department during its temporary reorganization constituted an adverse

employment action, and thereby provides a separate ground for her discrimination

claim. To show an adverse employment action, an employee must demonstrate “a

serious and material change in the terms, conditions, or privileges of employment.”

Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001). “[T]he

employee’s subjective view [of this] is not controlling.” Id. Rather, the

employment action at issue “must be materially adverse as viewed by a reasonable

person” under the same circumstances. Id.; see also Doe v. Dekalb County School

Dist., 145 F.3d 1441, 1453 (11th Cir. 1998) (“Any adversity must be material; it is

not enough that a transfer imposes some de minimis inconvenience or alteration of

responsibilities.”) (addressing an ADA claim).

      Sampath does not dispute that her salary, benefits, and hours remained

unchanged. The change in her job responsibilities was minor. She would have

supervised only three fewer employees under the new structure, which was only

intended as temporary in the first place. Although she asserts that her title was

changed, the record reflects no such change. Under these circumstances, we

conclude that the change in Sampath’s employment was not sufficiently serious to

constitute an adverse employment action. Accordingly, her discrimination claim

fails on this ground as well.



                                          16
                                III. CONCLUSION

      Sampath appeals the grant of summary judgment in favor of Immucor as to

her employment discrimination claims. First, because none of the evidence to

which Sampath points would go to demonstrate that Ramsey was aware that

Sampath’s responsibility for the summary was less than he believed or that he was

aware that Brost or Flier played more significant roles than he believed, we agree

with the district court that Sampath has failed to show that Ramsey’s reasons for

dismissing her were pretextual. Second, because Sampath’s salary, benefits, hours,

and most of her job responsibilities were unchanged by the temporary

reorganization of the IS department, we agree with the district court that Sampath’s

assignment during the reorganization did not rise to the level of an adverse

employment action. Accordingly, we AFFIRM the district court’s grant of

summary judgment.




                                         17
