            Case: 16-10449   Date Filed: 11/08/2016    Page: 1 of 9


                                                      [DO NOT PUBLISH]




             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-10449
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 4:15-cv-00118-RH-CAS



TINA RAY,

                                                           Plaintiff-Appellant,

                                   versus

CITY OF TALLAHASSEE,

                                                           Defendant-Appellee.

                       ________________________

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

                             (November 8, 2016)

Before TJOFLAT, WILLIAM PRYOR and JILL PRYOR, Circuit Judges.

PER CURIAM:
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       Tina Ray, a former employee of the City of Tallahassee (the “City”), appeals

the District Court’s grant of summary judgment on her claim that the City fired her

for complaining about racial discrimination on the job site, 1 in violation of Title

VII, 42 U.S.C. § 2000e-2(a), the Public Florida Whistleblower Act ("PWA"), Fla.

Stat. § 112.3187(4)(a), and the Florida Civil Rights Act ("FCRA"), Fla. Stat.

§§ 760.10(l)(a).2 Ray argues that the Court erred because she showed that the

reasons given by the City for firing her—relating to her poor job performance—

were pretextual. Ray identifies four points that show pretext: (1) the City's failure

to follow its disciplinary policies; (2) her supervisor's close documentation of her

performance; (3) her supervisor's announcement that she would only be in the

Land Use section for 30 days; and (4) the lapse of fewer than 60 days between her

protected activity and ultimate termination. After considering the parties' briefs and the

record, we affirm the District Court's judgment.

       1
          The Court granted the City summary judgment on the record during a reported pretrial
conference held on January 7, 2016. Doc. 43.
          2
            In addition to a claim of retaliatory discharge (for complaining about racial
discrimination), Ray's complaint alleged age and race discrimination, and the District Court,
giving Ray the benefit of a doubt, construed it also to allege racial harassment. The Court
granted the City summary judgment on all claims. Ray's brief on appeal only challenges the
Court's denial of her claim of retaliatory discharge; it presents no argument challenging the
Court's rejection of her other claims. We therefore consider her to have abandoned all claims
except the retaliatory discharge claim.
        We review the summary judgment de novo, applying the same legal standard used by the
District Court in deciding to grant it. Johnson v. Bd. of Regents of Univ. of Ga., 263 F.3d 1234,
1242 (11th Cir. 2001). We draw all factual inferences in the light most favorable to the non-
moving party, Ray. Id. Summary judgment is appropriate where “there is no genuine dispute as
to any material fact." Fed. R. Civ. P. 56(a).

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                                             I.


       Title VII makes it an unlawful employment practice for an employer to

discriminate against any employee for opposing any practice made unlawful by Title

VII, or for making a charge under Title VII. 42 U.S.C. § 2000e-3(a). A

similar protection against retaliation appears in the FRCA. Fla. Stat. § 760.10(7).

The PWA, in turn, protects employees who, under certain circumstances, disclose

"[a]ny violation or suspected violation of any... local law, rule, or regulation

committed by an employee or agent of an agency" or "[a]ny act or suspected act of

gross mismanagement, malfeasance, misfeasance" from discipline or dismissal.

Fla. Stat. §§ 112.3187(4), (5), (7). With respect to unlawful practices, both Title

VII and the FCRA prohibit employers from discharging an employee, or otherwise

discriminating against her with respect to her employment, on the basis of race. 42

U.S.C. § 2000e-2(a)(l); Fla. Stat. § 760.10(l)(a).

       A plaintiff may establish a Title VII claim through either direct or

circumstantial evidence. Hinson v. Clinch Cty, Ga. Bd. Of Educ, 231 F.3d 821,

827 (11th Cir. 2000). In reviewing Title VII claims that are supported by

circumstantial evidence, we use the three-step burden-shifting framework

established in McDonnell Douglas Corp. v. Green, 411 U.S. 792,93 S. Ct. 1817,




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36 L. Ed. 2d 668 (1973). Claims under the PWA and FCRA are governed by the

burden-shifting standard for Title VII retaliation claims. See, e.g. Sierminski v.

Transouth Fin. Corp., 216 F.3d 945, 950 (11th Cir. 2000) (PWA); Harper v.

Blockbuster Entm't Corp., 139 F.3d 1385,1387 (11th Cir. 1998) (FCRA). Under

McDonnell Douglas, if a plaintiff establishes a prima facie case of

retaliation, and the defendant provides a legitimate nondiscriminatory reason for

the materially adverse action, then the plaintiff must finally prove that the

defendant's reasons were pretexts for discrimination. Bryant v. Jones, 575 F.3d

1281,1307-08 (11th Cir. 2009).


       'To establish a prima facie case of retaliation under Title VII, a plaintiff
       must show that (1) [she] engaged in statutorily protected expression; (2)
       [she] suffered an adverse employment action; and (3) there is some causal
       relation between the two events.' Olmsted v. Taco Bell Corp., 141 F.3d
       1457, 1460(1 lth Cir.1998) (citing Meeks v. Computer Associates Int’l, 15
       F.3d 1013,1021 (11th Cir.1994)).


Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (1 lth Cir. 2001).

       To prove pretext, the plaintiff must show that the employer's proffered

reasons were "a coverup for a... discriminatory decision." Rojas v. Florida, 285

F.3d 1339, 1342 (1 lth Cir. 2002). If the defendant's legitimate nondiscriminatory

reason is one that might motivate a reasonable employer, a plaintiff cannot recast

the reason but must meet it head on and rebut it. Wilson v. B/E Aerospace, Inc.,
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376 F.3d 1079,1088 (11th Cir. 2004). Ultimately, a reason is not "pretext/or

discrimination unless it is shown both that the reason was false, and that

discrimination was the real reason." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,

515,113 S. Ct. 2742,125 L. Ed. 2d 407 (1993) (emphasis in original) (quotation

omitted).

       The inquiry into pretext centers on the employer's beliefs, not the

employee's beliefs or "reality as it exists outside of the decision maker's head."

Alvarez v. Royal Atlantic Developers, 610 F.3d 1253,1266 (11th Cir. 2010). If the

reason is one that might motivate a reasonable employer, the plaintiff cannot

succeed by simply quarrelling with the wisdom of the reason. Chapman v. AI

Transp, 229 F.3d 1012,1030 (11th Cir. 2000) (en banc). The ultimate burden of

proving by a preponderance of the evidence that the reason provided by the

employer is a pretext for prohibited, retaliatory conduct remains on the plaintiff.

Pennington v. City of Huntsville, 261 F.3d 1262,1266 (11th Cir. 2001).

Conclusory allegations of discrimination are, without more, insufficient to carry

the plaintiffs burden. Mayfield v. Patterson Pump Co., 101 F.3d 1371,1376 (11th

Cir. 1996). With these principles in hand, we consider first whether Ray

established a prima facie case of retaliation.




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                                             II.

       Tina Ray is a white female. She was 58 years of age when she went to work

for the City in its Growth Management Department on January 13,2014, as a

probationary employee for six months. Karen Jumonville was the Department's

Director. Ray was assigned to the Department's Building Inspections Division

("BI") as a Permit Technician. Doug Moore, who managed the BI, was her

ultimate supervisor. Ray's immediate supervisor was Jasmine Gates, the BI's

Permitting Services Supervisor.

       The BI was responsible for preparing, processing and issuing various types

of building permits. Like the other Permit Technicians working under Gates, Ray

was cross-trained to handle different types of permits. It was fast-paced work

involving different mediums, e.g., telephone, email, fax and mail, and a variety of

customers, e.g., contractors, builders, and the City's inspectors.

       It was not long before Ray got behind in her work. She was slower than the

other technicians and had difficulty processing building permits. Gates and

Jumonville received complaints from at least one customer. They also received

complaints from staff. In short, Ray was not performing adequately. On April 16,

2014, Gates and Moore told her that her employment was to be terminated. They

gave her the option of resignation instead of termination.


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      Two days later, on April 18, Ray emailed Gates and Moore saying that she

would not resign; she wanted to continue working for the City. They responded on

April 20, with a letter notifying her that her probationary period would end

effective April 30. The same day, April 20, Ray formally grieved the notification,

complaining that she had been bullied and harassed in front of co-workers by a

black co-worker, a technician named Carol Horsey. She claimed that Horsey's

conduct amounted to racial discrimination.

       On April 20, having been informed of Ray's grievance, Moore met with Ray to

learn the specific details of the racial discrimination. On April 21, at Moore's

request, Ray described Horsey's behavior and informed him of conversations she

had with a co-worker about Horsey two weeks earlier and with another co-worker

that day. And she apologized for not complaining about Horsey's conduct sooner.

      Pursuant to City policy, Jumonville heard Ray's grievance. She reversed

Moore's and Gate's decision to terminate Ray's employment and arranged to

transfer Ray to the Department's Land Use and Environmental Services Division

("LUES"), with an extended period of probation, to "see if she would be better

suited to a position in a more relaxed atmosphere." On April 22, Jumonville and Moore

introduced Ray to Steve Palmer, the LUES Administrator, and Edie Harrison, who would

be her immediate supervisor. Ray agreed to the transfer and the extended probation. 3

      3
          During the meeting with Jumonville, Moore, Palmer and Harrison, nothing was said about
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       Ray reported for work in the LUES on April 23. Ray had the same kind of

problems she manifested in the BI—particularly in forwarding phone calls and

handling permit information. On June 2, Palmer and Harrison met with Ray

regarding her probationary period and provided her with a document outlining her

deficiencies. Palmer informed her that she was being terminated.

       Ray's claim of retaliation fails for two reasons. First, she failed to make out

a prima facie case of retaliation or to present evidence that the City's reason for

terminating her employment was pretextual. As for her prima facie case, Ray

established the first two elements: she engaged in protected expression,

complaining about Horsey's discriminatory behavior in the work place, and she

suffered adverse employment action. But she failed to establish the third element,

a causal connection between her complaint about Horsey and the adverse

employment action Palmer took. Neither Palmer, the LUES Administrator and

ultimate decision maker, nor Harrison, her immediate supervisor who

recommended her termination, knew anything at all about the complaint Ray had

made about the racial discrimination in the BI, brought about by Horsey's conduct.

Even if we were to assume that Palmer and/or Harrison knew about the complaint,



Ray's grievance or the complaint Ray had made about Horsey's purportedly discriminatory behavior
toward her. Ray admitted that LEUS was a different section of the Growth Management Department
with different co-workers.
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the reason for terminating Ray's employment was legitimate and non-discriminatory, and

Ray offered nothing to show that it was pretextual.

      For the foregoing reasons, the judgment of the District Court is

      AFFIRMED.




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