               Case: 11-13982   Date Filed: 10/18/2012   Page: 1 of 9

                                                             [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                       _____________________________

                                No. 11-13982
                            Non-Argument Calendar
                       _____________________________

                      D. C. Docket No. 2:08-cv-01342-AKK

VANESSA A. FELDER,

                                           Plaintiff-Counter-Defendant-Appellant,

      versus

BRADFORD HEALTH SERVICES,
d.b.a. Addiction & Mental Health Services, Inc.,

                                           Defendant-Counter Claimant-Appellee.

                _________________________________________

                   Appeal from the United States District Court
                      for the Northern District of Alabama
                _________________________________________

                                (October 18, 2012)


Before MARTIN, EDMONDSON, and BLACK, Circuit Judges.


PER CURIAM:

      Vanessa Felder appeals the grant of summary judgment in favor of her
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former employer, Bradford Health Services (“Bradford”), on her claims of race

discrimination, retaliation, and fraud.1 Felder brought her claims under 42 U.S.C.

§ 1981, and Alabama state law. No reversible error has been shown; we affirm.

       Felder, an African-American female, filed, through counsel, an amended

complaint against Bradford alleging that (1) she was terminated on account of her

race; (2) Bradford ultimately retaliated against her after it learned that she had

filed a discrimination charge with the Equal Employment Opportunity

Commission (“EEOC”); and (3) she was denied a pay raise and tuition

reimbursement for a healthcare graduate degree after she relied on her supervisor,

Roy Ramsey’s, assurances of financial assistance.

       Felder argued that she established a prima facie2 case for race discrimination

and discriminatory discharge because (1) as an African-American, she was a

member of a protected class; (2) she was qualified for her then-current position as


   1
   We review de novo the district court’s grant of summary judgment. Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007). And we view the evidence in the light
most favorable to the non-moving party. Id.
   2
     Because this case is a circumstantial evidence case, the burden-shifting framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 663
(1973), applies. In a nutshell, the plaintiff must first establish a prima facie case, which creates a
presumption of unlawful discrimination against the employee. The employer may then rebut that
presumption with legitimate, non-discriminatory reasons for the adverse employment actions.
The employee must then proffer sufficient evidence to create a genuine issue of material fact that
the defendant’s articulated reasons are pretextual. See Crawford v. Carroll, 529 F.3d 961, 976
(11th Cir. 2008).

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Patient Services Coordinator when she was terminated, as the position was created

for her; and (3) she could proffer evidence that Bradford regarded her race as a

negative factor in eliminating her position. She maintained that Tim DeLoach, a

white employee with supervisory responsibilities over her, reassigned her duties

and made derogatory comments about African-Americans being dependent on

handouts. Felder also alleged that Caucasian staff received more favorable

treatment than African-American employees, including career-broadening

assignments and raises. By contrast, Bradford asserted that it eliminated her

position as part of a reduction-in-force (“RIF”) to manage costs and improve

efficiencies and that Felder failed to allege or to offer evidence to show that she

was qualified for another position available at the time of her discharge or that she

applied for another available position.

       Under section 1981, “[a]ll persons . . . shall have the same right . . . to

make and enforce contracts . . . as is enjoyed by white citizens,” which in an

employment context means protection against discrimination based on race. 42

U.S.C. § 1981; Webster v. Fulton Cnty., Ga, 283 F.3d 1254, 1256 (11th Cir.

2002). To establish a prima facie case of race discrimination under section 1981




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involving a RIF,3 the employee must prove that (1) she is a member of a protected

class and was adversely affected by an employment action; (2) she was qualified

to assume another position at the time of the discharge; and (3) the employer

intended to discriminate in reaching the employment decision at issue. Barnes v.

Sw. Forest Indus., Inc., 814 F.2d 607, 609 (11th Cir. 1987) (involving an age

discrimination suit).

       About the second element, we have explained that “[w]here a particular job

position is entirely eliminated for nondiscriminatory reasons, for plaintiff to

prevail against [her] employer, [she] must show that [she] was qualified for

another available position with that employer; qualification for [her] current job is

not enough. Earley v. Champion Int’l Corp., 907 F.2d 1077, 1082-83 (11th Cir.

1990) (dealing with age discrimination).

       Here, the district court did not err in concluding that Felder failed to

establish a prima facie case of race discrimination on her termination because she

cannot establish that she was qualified for another position available at Bradford

when she was discharged or that Bradford intended to discriminate against her

when it eliminated her position. While Felder clearly is in a protected class and


   3
     The elements of a claim of race discrimination under section 1981 are the same as a Title
VII disparate treatment claim in an employment context. Rice-Lamar v. City of Fort Lauderdale,
Fla., 232 F.3d 836, 843 n.11 (11th Cir. 2000).

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was adversely affected by Bradford’s decision to terminate her, she fails to meet

the remaining elements necessary to establish that her termination was predicated

on race discrimination.

      Viewing the evidence in a light most favorable to Felder, nothing suggests

that another position for which she was qualified was available at the time of her

termination or that she even requested or applied for another position at Bradford

when she was terminated. In addition, Felder failed to demonstrate that Bradford

intended to discriminate against her by terminating her employment. Bradford

terminated three white employees and three black employees as part of its RIF. In

addition, after the RIF, Bradford assigned some of Felder’s job duties to

employees within her protected class. A black female assumed all her paperwork

duties, and her communication duties were reassigned to primary counselors who

were both white and black. Felder also did not prove that Ramsey, who made the

decision to eliminate Felder’s position, possessed a racial animus toward




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African-Americans.4 As a result, Felder failed to establish a prima facie case of

race discrimination on her termination.

       For her claim of race discrimination on her pay raise claim, Felder failed to

identify a comparator whose experience was substantially similar to her own.5

Felder alleged that Bradford falsely claimed that it did not have money for raises --

while giving two white employees “substantial raises.” These two alleged

comparators, however, were not similarly situated to Felder: they had different

experiences, credentials, job duties, and qualifications. See Holifield v. Reno, 115

F.3d 1555, 1562 (11th Cir. 1997) (stating that the person the plaintiff identifies as

her comparator must be similarly situated “in all relevant respects”). As a result,

because Felder fails to present any other evidence of discrimination, the district

court properly concluded that she failed to establish a prima facie case of race

discrimination in her pay raise claim.

   4
    In her brief on appeal, Felder appears to assert that DeLoach’s discriminatory animus is
imputed to Ramsey, the decisionmaker, under the “cat’s paw theory,” because Ramsey followed
DeLoach’s biased recommendation to reassign her job duties, which ultimately led to her
termination. These claims were not before the district court when it granted summary judgment;
and we will not review them. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331
(11th Cir. 2004) (explaining that we will not consider arguments on appeal that were not fairly
presented below).
   5
     In general, a plaintiff may establish a prima facie case for disparate treatment in a race
discrimination case by showing that (1) she is a member of a protected class; (2) she was
subjected to an adverse employment action; (3) her employer treated similarly situated employees
outside her protected class more favorably than she was treated; and (4) she was qualified to do
the job. See Burke-Fowler v. Orange Cnty, Fla., 447 F.3d 1319, 1323 (11th Cir. 2006).

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      Turning to Felder’s retaliation claim, to establish a prima facie case, a

plaintiff must show that “(1) she engaged in an activity protected [by statute]; (2)

she suffered an adverse employment action; and (3) there was a causal connection

between the protected activity and the adverse employment action.” Crawford v.

Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (noting the elements for retaliation in

a Title VII claim).

      In this case, the district court properly concluded that Felder established the

first two elements of the prima facie case for retaliation because her complaint to

Sydnee Bender, an employee in Human Resources (“HR”), in December 2006,

about discrimination constitutes protected activity, and her termination on

February 23, 2007, represents an adverse employment action.

      Felder fails to cite to evidence that suggests that Ramsey, the decisionmaker

in her termination, was aware of Felder’s alleged complaint to HR in December

2006, when he made the decision to terminate Felder. According to Felder’s own

deposition testimony, the most recent protected conduct of which Ramsey was

aware was Felder’s complaint to him in March 2006, almost a full year before her

termination, in which she advised him that she was going to the EEOC because her

job duties were being reassigned by DeLoach. A nearly one-year gap between the

last alleged protected conduct and an adverse employment action is insufficient to

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establish the requisite causal connection for a retaliation claim. See Drago v.

Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006) (holding that three months between a

protected activity and an adverse employment action, standing alone, failed to

establish a causal connection of retaliatory discharge). Thus, the district court

properly concluded that because Felder failed to show a causal connection

between her complaints and termination, she could not establish a prima facie case

for retaliation under section 1981.

       Felder’s state-law fraud6 claim chiefly fails because she cannot demonstrate

that Ramsey intended to deceive her when he allegedly promised to increase her

salary and to reimburse her for educational expenses for a graduate degree.

Felder’s only evidence was her own assertion that Ramsey failed to follow through

on his promise that he would raise her salary to $50,000 and that Bradford would

reimburse her if she pursued a graduate degree in healthcare. See Goodyear Tire

& Rubber Co. v. Washington, 719 So.2d 774, 776 (Ala. 1998) (noting that a

plaintiff cannot meet her burden merely by showing that the alleged promise

ultimately was not kept, but instead, “[t]here must be substantial evidence of a

   6
     Under Alabama law, the elements of fraud are “(1) a misrepresentation, (2) of a material
existing fact, (3) upon which the plaintiff justifiably relied, (4) which proximately caused injury
or damage to the plaintiff.” Johnson v. Green Mountain, Inc., 623 So.2d 1116, 1121 (Ala. 1993).
To support a claim of promissory fraud, the plaintiff must show that at the time of the alleged
misrepresentation, the defendant intended not to do the acts promised, but intended to deceive the
plaintiff. Id.

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fraudulent intent that existed when the promise was made”).7 Felder provided no

evidence of prior instances where Ramsey made unfulfilled promises to her, and

she also failed to produce evidence of acts or words that occurred after his alleged

promise that gave a hint of an intent to deceive: insufficient evidence of fraudulent

intent.

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

judgment in favor of Bradford.

          AFFIRMED.




   7
     The district court also properly concluded that the denial of the tuition reimbursement
(especially when it is undisputed that Felder did not follow the procedures set out in the
employee manual to obtain reimbursement) did not impact the terms, conditions, or privileges of
her employment, and thus, did not constitute an adverse employment action.

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