           Case: 17-14335   Date Filed: 10/26/2018   Page: 1 of 17


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-14335
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 1:15-cv-00196-ODE



LISA BARTELL,

                                                           Plaintiff - Appellant,

versus

FULTON COUNTY, GEORGIA,

                                                         Defendant - Appellee.

                       ________________________

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

                            (October 26, 2018)

Before WILSON, JORDAN, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Plaintiff Lisa Bartell appeals the district court’s grant of summary judgment

in favor of her former employer Fulton County, Georgia (“Defendant”) on her

claims of race discrimination and retaliation under Title VII of the Civil Rights

Act, 42 U.S.C. § 2000e et seq (“Title VII”). On appeal, Plaintiff argues that the

district court erred by concluding that she failed to establish a prima facie case of

race discrimination. She also asserts that the district court failed to address her

retaliation claim. After careful review, we affirm.

I.    BACKGROUND

      A.     Facts

      Plaintiff, a black female, began working for Fulton County, Georgia as a

Nutritionist in the Women, Infants, and Children (“WIC”) Program in 1994.

According to Stacy Jones, the Deputy Personnel Director of the Fulton County

Personnel Department, Plaintiff was hired into a temporary unclassified position.

During this litigation, Plaintiff has disagreed that the position was temporary.

Nonetheless, she has also acknowledged that it was not permanent and that she

therefore did not qualify for health or pension benefits. At the time Plaintiff was

hired, the Nutritionist position did not require a license as a registered dietician. In

2003, the job title changed from Nutritionist to Public Health Nutritionist and the

classification specifications for the position were amended to require that an




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individual have a license as a registered dietician. Plaintiff is not licensed as a

registered dietician.

         The WIC Program is part of Fulton County’s Department of Health

Services. Dr. Patrice Harris was the Director of Fulton County’s Department of

Health Services. In May 2012, Patricia Cwiklinski was hired as the Fulton County

Public Health Nutrition Manager. Her responsibility for overseeing the Fulton

County WIC staff included assigning nutritionists to one of the WIC Clinics.

Fulton County had six WIC clinic sites: CHR Boulevard, Neighborhood Union,

College Park, Adamsville, Sandy Springs, and Alpharetta.1 The number of

nutritionists assigned to each clinic varied and clinic assignments changed when

designated nutritionists missed work. According to Plaintiff, she was called

regularly to cover for staff at other clinics. She was also asked to cover two clinics

in the same day approximately three or four times every six months.

         At some point after Cwiklinski was hired, she met with all of the

nutritionists to determine clinic assignments. According to Plaintiff, although

white nutritionists were able to choose their clinic assignments,2 Cwiklinski chose

the Adamsville location for Plaintiff and promised her that she would be promoted

to breastfeeding coordinator. At that time, the Adamsville location had the lowest


1
    There had been seven WIC clinics, but the Lakewood location closed in 2012.
2
    Cwiklinski denies that white nutritionists were able to select their own clinic assignments.
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number of breastfeeding clients and Plaintiff was the only staff member qualified

as a certified lactation consultant. It was hoped that, given Plaintiff’s expertise in

lactation issues, she could increase the clientele at Adamsville. As to the

expectation that Plaintiff would eventually be promoted to the position of

breastfeeding coordinator, when Cwiklinski assigned Plaintiff to the Adamsville

location, she believed that the incumbent breastfeeding coordinator would retire.

Yet, as of Cwiklinski’s last day as Public Health Nutrition Manager in September

2014, the incumbent breastfeeding coordinator had still not retired. Thus, the

anticipated opening never came to pass.

      As to Plaintiff’s complaint that the Adamsville location was inconvenient,

Plaintiff admitted that it was actually closer to her home than the location she

preferred: College Park. Nevertheless, she claimed that the Adamsville location

was less preferable because it was inadequately staffed. Plaintiff avers that she

saw 75 patients per day and “barely” got a lunch break and often had to wait to use

the restroom until her lunch break. According to Plaintiff, white nutritionists

received more support. Specifically, management ensured adequate staffing at the

locations where white nutritionists were assigned. Nevertheless, Plaintiff admitted

that management sent someone to assist at the Adamsville location approximately

once per week.




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      Plaintiff also claimed that black nutritionists were required to teach nutrition

classes more often than white nutritionists. However, when Plaintiff’s co-worker,

Renee Cheney, was demoted from Public Health Nutritionist to Nutritionist

Assistant, Cheney was assigned to teach nutrition classes at all of the clinic

locations. Although Cheney came to the Adamsville location to teach classes,

Plaintiff volunteered to continue teaching classes so that clients would not have to

wait too long. No one directed Plaintiff to continue teaching classes.

      In February 2013, Cwikliniski directed Michelle Broussard, the Public

Health Nutrition Coordinator, to obtain college transcripts from several employees.

Broussard thereafter requested a college transcript from Plaintiff and three other

black nutritionists: Cheney, Joanne Arceneaux, and Mohmoud Rashad. Broussard

indicated that the reason for this request was an upcoming state audit. According

to Plaintiff, white nutritionists were not asked to provide a copy of their college

transcripts. Cwiklinksi explained that she requested transcripts only from

nutritionists who were not licensed. Plaintiff was not a licensed dietician, nor were

the three other black nutritionists who were asked to provide transcripts.

      On April 29, 2013, Cwiklinski sent an email to three white nutritionists—

Rachel Agnew, Greta Sebestyen, and Christine Kassas—to thank them for their

hard work and to inform them that they could take a paid day off in the next couple

of months. That same day, Cwiklinski learned that she was not authorized to


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provide paid time off and she then emailed Agnew, Sebestyen, and Kassas to

rescind the offer.

        In September 2013, the Fulton County Board of Commissioners approved a

regulation providing that any employee in a temporary position could not work

more than 29 hours per week. Cwiklinski held a meeting in December 2013 to

inform all temporary employees, including Plaintiff, that their hours would be

reduced beginning in January 2014. The Fulton County Board of Commissioners,

however, suspended enforcement of the regulation until August 2014. Plaintiff’s

hours were reduced from 40 to 29 hours per week in either April or August of

2014.

        Around the same time, Fulton County sought to replace temporary positions

with permanent positions and each Fulton County Department was asked to

complete an evaluation form for the temporary positions it sought to replace with a

permanent position. Dr. Harris submitted forms for replacement of three

temporary Public Health Nutritionist positions, one of which was Plaintiff’s.

        On July 31, 2014, the panel reviewing temporary positions approved the

creation of three permanent Public Health Nutritionist positions. The Fulton

County Personnel Department posted and recruited candidates for the new

positions, as the Fulton County Personnel Regulations did not permit candidates to




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be placed into permanent positions without a competitive recruitment process.

Plaintiff was told that she needed to apply for the position.

      On August 1, 2014, Plaintiff filed a charge with the Equal Employment

Opportunity Commission (“EEOC”), alleging race discrimination under Title VII

based on the reduction in her work hours. Shortly thereafter, on August 14, 2014,

the Public Health Nutritionist position was posted. The job posting indicated that a

registered dietician license was required. Plaintiff applied for the position on

August 15, 2014. On the application, she answered “No” to the question asking if

she had a valid Georgia license as a registered dietician. Based on her application,

the Fulton County Personnel Department determined that she was not qualified for

the position because she did not hold a registered dietician license. Because she

was deemed not qualified for the position, her application was not forwarded to the

Department of Health Services for evaluation.

      Plaintiff later requested a meeting with Dr. Harris to discuss the reduction in

her hours. At the meeting held on October 20, 2014, Dr. Harris presented Plaintiff

with a termination letter. The letter stated that Plaintiff’s temporary position was

terminated effective October 28, 2014, and that she had applied for a permanent

position but was informed on August 19, 2014, that the Personnel Department had

determined that she did not meet the minimum requirements of the permanent

positon. According to Plaintiff, Dr. Harris told her that she had the option to


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continue reporting to work until the effective date of her termination: October 28,

2014. Plaintiff came to work the next day on October 21, 2014, and was escorted

out of the building.

      B.     Procedural History

      Plaintiff subsequently filed this lawsuit against Defendant, asserting claims

of race discrimination pursuant to Title VII and 42 U.S.C. §1981, retaliation under

Title VII and § 1981, intentional infliction of emotional distress, and punitive

damages. Defendant moved to dismiss Plaintiff’s claims, except for her Title VII

retaliation claim. The district court granted Defendant’s motion to dismiss as to

Plaintiff’s claims for intentional infliction of emotional distress, punitive damages,

Title VII discriminatory discharge, and her claims under § 1981. However, the

court denied the motion as to Plaintiff’s Title VII retaliation claim, as well as her

race discrimination claim under Title VII that concerned the alleged acts that

occurred prior to her termination.

      Defendant moved for summary judgment on Plaintiff’s remaining claims. A

magistrate judge issued a Report and Recommendation (“R&R”) recommending

that Defendant’s motion for summary judgment be granted. Over Plaintiff’s

objections, the district court granted summary judgment in favor of Defendant.

This appeal followed.




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II.   DISCUSSION

      A.     Standard of Review

      We review de novo the district court’s grant of summary judgment. Ellis v.

England, 432 F.3d 1321, 1325 (11th Cir. 2005). When conducting this review, we

“view the evidence and all factual inferences raised by it in the light most

favorable to the non-moving party, and resolve all reasonable doubts about the

facts in favor of the non-moving party.” Comer v. City of Palm Bay, Fla., 265

F.3d 1186, 1192 (11th Cir. 2001). Summary judgment is appropriate if “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). A genuine issue of material fact exists when

“the evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

      B.     Title VII Race Discrimination

      Plaintiff argues that the district court erred by concluding that she failed to

establish a prima facie case of race discrimination under Title VII. Pursuant to

Title VII, an employer is prohibited from discharging, or otherwise discriminating

against, an individual with respect to compensation, conditions, or privileges of

employment because of race. 42 U.S.C. § 2000e-2(a)(1). When a plaintiff offers

only circumstantial evidence of discrimination, as in the present case, we typically

apply the framework set forth in McDonnell Douglas Corporation v. Green, 411


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U.S. 792 (1973). Combs v. Plantation Patterns, 106 F.3d 1519, 1527 (11th Cir.

1997).

      To succeed on a claim based on circumstantial evidence, a plaintiff must

establish a prima facie case of race discrimination by showing that: “(1) [she] is a

member of a protected class; (2) [she] was qualified for the position; (3) [she]

suffered an adverse employment action; and (4) [she] was replaced by a person

outside [her] protected class or was treated less favorably than a similarly-situated

individual outside [her] protected class.” Maynard v. Bd. of Regents, 342 F.3d

1281, 1289 (11th Cir. 2003). If a plaintiff establishes a prima facie case of race

discrimination, then the burden shifts to the employer to put forth a legitimate

nondiscriminatory reason for the adverse employment action. Wilson v. B/E

Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004). If the employer does so,

then the burden shifts back to the plaintiff to show that the proffered reason is a

pretext for discrimination. Id.

      In granting summary judgment on Plaintiff’s race discrimination claim in the

present case, the district court concluded that Plaintiff failed to establish a prima

facie case of race discrimination. Specifically, Plaintiff failed to identify a

similarly situated comparator outside of her protected class who was treated more

favorably with respect to clinic assignments and workload. The court further




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concluded that Plaintiff failed to establish that Cwikliniski’s request for her

transcript was an adverse employment action.

             1.     Clinic Reassignment and Workload

      When comparing a plaintiff’s treatment to that of an employee outside the

protected class, the plaintiff must show that the comparator employee is similarly

situated in all relevant respects to the plaintiff. Knight v. Baptist Hosp. of Miami,

Inc., 330 F.3d 1313, 1316 (11th Cir. 2003). “If a plaintiff fails to show the

existence of a similarly situated employee, summary judgment is appropriate

where no other evidence of discrimination is present.” Holifield v. Reno, 115 F.3d

1555, 1562 (11th Cir. 1997) (emphasis omitted).

      Here, the district court did not err by concluding that Plaintiff failed to

provide evidence of a similarly situated comparator who was treated more

favorably. Although Plaintiff stated that white nutritionists were able to choose

their clinic assignments, she did not identify any specific white nutritionists who

selected their own clinic assignments. Nor was there any evidence in the record to

support this generalized allegation. See Stewart v. Booker T. Washington Ins., 232

F.3d 844, 850 (11th Cir. 2000) (explaining that “bare and self-serving

allegation[s]” without any personal knowledge are not sufficient to withstand

summary judgment).




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      Plaintiff also stated that she and black nutritionists were required to teach

more nutrition classes than white nutritionists. But Plaintiff admitted that she

volunteered to teach classes, even after Cheney had been assigned to teach classes

at the Adamsville clinic location and thereby to relieve Plaintiff of this burden. As

to Plaintiff’s repeated assertion that white nutritionists received paid time off and

black nutritionists did not, the district court correctly found that this argument was

administratively barred. See 42 U.S.C. § 2000e-5(e)(1) (providing that a charge of

discrimination must be filed within 180 days after the alleged unlawful

employment practice occurred). Indeed, Plaintiff filed her EEOC charge in August

2014, which was more than 180 days after Cwikliniski sent the email offering the

paid day off to the three white nutritionists in April 2013. But regardless, the

record shows that white nutritionists never received any paid time off, as

Cwiklinski rescinded the offer the same day that she made it.

      To support her overarching argument that white nutritionists were treated

more favorably, Plaintiff relies on testimony Cheney provided during a deposition

in a separate case. In that deposition, Cheney stated that “everything [Cwiklinski]

did was only for the white nutritionists. She never did anything to really help the

black nutritionists.” Cheney went on to say that when black nutritionists needed

support, Cwiklinski would say that “there was nothing she could do. But when the

white nutritionists were short of help, she would go help them.”


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      Like Plaintiff’s allegations, Cheney’s unspecific generalization that white

nutritionists were provided with support from management, while black

nutritionists were not, was insufficient to show that white nutritionists were treated

more favorably than black nutritionists. See Stewart, 232 F.3d at 850. Moreover,

Cheney’s assertion that black nutritionists were never provided with any support is

at odds with Plaintiff’s testimony that management sent someone to assist at the

Adamsville location approximately once per week.

      In short, the district court did not err by concluding that Plaintiff failed to

establish a prima facie case of race discrimination because she failed to show that

white nutritionists were treated more favorably.

             2.    Transcript Request

      Plaintiff also argues that the district court erred by concluding that the

request for her college transcript was not an adverse employment action. “An

adverse employment action is conduct that ‘alters the employee’s compensation,

terms, conditions, or privileges of employment, deprives him or her of employment

opportunities, or adversely affects his or her status as an employee.’” Cotton v.

Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1233 (11th Cir. 2006)

(quoting Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 587 (11th Cir. 2000)).

      Here, the district court properly determined that Plaintiff failed to show that

the transcript request was materially adverse to her employment. See Davis v.


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

adverse employment action . . . an employee must show a serious and material

change in the terms, conditions, or privileges of employment.” (emphasis in

original)). Plaintiff argues that the transcript request in February 2013 affected her

employment because it identified her as not having a license as a registered

dietician, which ultimately led to her termination in October 2014. Plaintiff,

however, has presented no evidence showing that the transcript request had any

impact on Fulton County’s decision to eliminate her temporary position in July

2014, on the ultimate determination that she was not qualified for the permanent

position in August 2014, or on her day-to-day working conditions following the

request. See id., 245 F.3d at 1239 (“[T]he employee’s subjective view of the

significance and adversity of the employer’s action is not controlling; the

employment action must be materially adverse as viewed by a reasonable person in

the circumstances.”).

      Further, even had no request for a transcript been made, Plaintiff would still

not have secured the permanent position that became available eighteen months

later because, not being a licensed dietician, Plaintiff was not qualified for the

position. Indeed, on her application for a permanent position, Plaintiff

acknowledged that she did not have a license as a registered dietician. And it is

undisputed that a registered dietician license was a requirement of the job under


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County guidelines. In short, Plaintiff failed to show that Cwiklinski’s April 2013

request for a transcript materially changed any condition of Plaintiff’s

employment.

      Leaving aside the fact that the transcript request was not an adverse action,

Plaintiff has also failed to show any disparate treatment based on management’s

request that Plaintiff provide her college transcript, but its failure to ask Rachel

Agnew, a white nutritionist, to do the same. Cwiklinski anticipated a state audit

and the State of Georgia required a nutritionist to have either an acceptable degree

or a license as a registered dietician. Aware that Plaintiff was not a licensed

dietician, Cwiklinski needed confirmation that Plaintiff had the requisite college

degree in a qualifying area. Agnew, on the other hand, was a licensed registered

dietician, which, by itself, satisfied the State’s requirements. Thus, there was no

need to inquire whether she also had a college degree.

      In short, Plaintiff was not treated differently from a similarly-situated

comparator by being asked to provide a transcript. Even had she been treated

differently, the request for a transcript did not constitute a significant change in the

conditions of her employment. Accordingly, the district court did not err by

concluding that Plaintiff failed to establish a prima facie case of race

discrimination based on this request.




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      C.     Title VII Retaliation

      Finally, Plaintiff argues that the district court erred by failing to address her

retaliation claim. In response, Defendant asserts that Plaintiff waived her

arguments concerning the Title VII retaliation claim. We agree.

      Our local rule provides that a party who fails to object to a magistrate

judge’s findings or recommendations contained in the R&R “waives the right to

challenge on appeal the district court’s order based on unobjected-to factual and

legal conclusions if the party was informed of the time period for objecting and the

consequences on appeal for failing to object. In the absence of a proper objection,

however, the court may review on appeal for plain error if necessary in the

interests of justice.” 11th Cir. R. 3-1.

      In the present case, the magistrate judge recommended that the district court

grant summary judgment in favor of Defendant on Plaintiff’s Title VII retaliation

claim because Plaintiff failed to show a causal connection between her filing the

EEOC charge in August 2014 and the alleged discriminatory manner of her

removal from the clinic in October 2014; that is, being escorted out of the building.

The magistrate judge informed Plaintiff that a party who fails to object to the

magistrate judge’s findings or recommendations contained in the R&R within 14

days “waives the right to challenge on appeal the district court’s order based on

unobjected-to factual and legal conclusions.” Despite the warning, Plaintiff—who


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was represented by counsel—did not object to the magistrate judge’s

recommendation that summary judgment be granted in favor of Defendant on her

retaliation claim, nor did she object to the magistrate judge’s determination that she

failed to establish a causal connection between the statutorily protected activity and

the adverse employment action.

       Plaintiff, who is also represented by counsel on appeal, failed to file a reply

brief responding to Defendant’s assertion that she waived her retaliation-claim

arguments by not objecting to the magistrate judge’s R&R: meaning Plaintiff has

made no effort to rebut Defendant’s assertion of waiver nor to argue that the

district court plainly erred in its ruling. Because Plaintiff was on notice about the

time period for filing objections to the R&R and the consequences for failing to

object, her failure to object constitutes a waiver of her right to challenge the denial

of her retaliation claim. See 11th Cir. R. 3-1. Moreover, she has not argued—nor

do we discern—plain error in the district court’s ruling on this claim. For that

reason, we likewise affirm the district court’s grant of summary judgment on the

retaliation claim.

III.   CONCLUSION

       For the above reasons, the district court’s order granting summary judgment

in favor of Defendant is AFFIRMED.




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