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                                                                   [DO NOT PUBLISH]


                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 11-16072
                               ________________________

                       D.C. Docket No. 4:10-cv-00216-BAE-GRS



THERESA D. WALKER,

                                                                   Plaintiff - Appellant,

                                            versus


ST. JOSEPH’S/CANDLER HEALTH SYSTEM, INC.,

                                                                   Defendant - Appellee.

                               ________________________

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

                                     (February 4, 2013)

Before MARCUS and MARTIN, Circuit Judges, and SCRIVEN, * District Judge.

PER CURIAM:


*
 Honorable Mary S. Scriven, United States District Judge for the Middle District of Florida,
sitting by designation.
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      This is an appeal from the grant of summary judgment in favor of St.

Joseph’s/Candler Health System in a discrimination suit brought by Respiratory

Therapist Theresa Walker. Walker alleged a discriminatory demotion based on her

race and gender as well as retaliation for her filing with the EEOC.

      Following over a dozen complaints from seven of her team members,

Walker, who is African American, was demoted from her position as a “Team

Leader” in the Respiratory Therapy Department at St. Joseph’s/Candler Hospital.

She was demoted by her manager, Harold Oglesby, who is also African American.

Oglesby testified that due to the complaints against Walker, he no longer believed

that she could successfully lead her team.

                                          I.

      We review the grant of summary judgment de novo, “with evidence

considered in the light most favorable to [Walker].” Rioux v. City of Atlanta, Ga,

520 F.3d 1269, 1274 (11th Cir. 2008). “We will affirm if, after construing the

evidence in the light most favorable to the non-moving party, we find that no

genuine issue of material fact exists and the moving party is entitled to judgment as

a matter of law.” Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264–

1265 (11th Cir. 2010).

      Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer

“to fail or refuse to hire or to discharge any individual, or otherwise to discriminate


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against any individual with respect to [her] compensation, terms, conditions, or

privileges of employment, because of such individual’s race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e-2(a)(1) (West 2012).

       We analyze a circumstantial case of a discriminatory demotion under the

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).1 That

framework requires the plaintiff to establish a prima facie case of discrimination

typically by showing she was a member of a protected class and was either

replaced by someone outside her class or subjected to an adverse employment

action in contrast to similarly situated comparators from outside her class. See

Rioux, 520 F.3d at 1275–1276. The defendant must proffer legitimate,

nondiscriminatory reasons for its actions in rebuttal. If the defendant offers such

reasons, the plaintiff must demonstrate pretext. See Alvarez, 610 F.3d at 1264.

Regardless of presumptions, the ultimate burden lies with the plaintiff to show

intentional discrimination. See United States v. Crosby, 59 F.3d 1133, 1135 (11th

Cir. 1995).



1
  Walker argues that she has presented direct evidence through two statements made by Oglesby,
and through his shrug in response to a question about Walker’s demotion posed by his secretary.
The most offending of the statements proffered by Walker was Oglesby’s alleged statement that
Walker should go back to the night shift “to have peace and be with her own kind.” However,
this Circuit employs a stringent standard for direct evidence. “Direct evidence is evidence, that,
if believed, proves [the] existence of [a] fact without inference or presumption.” Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004) (quotation marks omitted). Because the
“your own kind” statement does not prove race or gender discrimination without inference, it
does not meet the standard for direct evidence in this Circuit.
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      We will assume that Walker established a prima facie case. In response, St.

Joseph’s has given legitimate business reasons for demoting Walker. With this

background, we focus here on Walker’s showing of pretext.

      The inquiry as to pretext is based on “the employer’s beliefs, and not the

employee’s own perceptions of [her] performance.” Holifield v. Reno, 115 F.3d

1555, 1565 (11th Cir. 1997). This Circuit has explained that “to be blunt about it,”

the inquiry does not center “on reality as it exists outside of the decision maker’s

head.” Alvarez, 610 F.3d at 1266. Thus,

      [a] plaintiff is not allowed to recast an employer’s proffered
      nondiscriminatory reasons or substitute his business judgment for that
      of the employer. Provided that the proffered reason is one that might
      motivate a reasonable employer, an employee must meet that reason
      head on and rebut it, and the employee cannot succeed by simply
      quarreling with the wisdom of that reason.

Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).

      A typical means of establishing pretext is through comparator evidence.

Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1259 (11th Cir. 2001); Sparks

v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1563 n.20 (11th Cir. 1987). A

comparator is “a similarly-situated employee who committed the same violation of

work rules, but who was disciplined less severely than [the plaintiff].” Rioux, 520

F.3d at 1276. “[T]o determine whether employees are similarly situated,” this

Court evaluates “whether the employees are involved in or accused of the same or

similar conduct and are disciplined in different ways.” Burke-Fowler v. Orange
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County, Fla., 447 F.3d 1319, 1323 (11th Cir. 2006) (quotation marks omitted).

“[T]he quantity and quality of the comparator’s misconduct [must] be nearly

identical to prevent courts from second-guessing employers’ reasonable decisions

and confusing apples with oranges.” Maniccia v. Brown, 171 F.3d 1364, 1368

(11th Cir. 1999). While comparator evidence can illustrate pretext, “[e]vidence

that similarly situated employees were treated differently is of probative value, but

does not always establish that intentional discrimination occurred.” Crosby, 59

F.3d at 1135.

      Pretext may also be established by proof of inconsistent statements or

shifting explanations for the adverse employment decision, suggesting that the

articulated reasons are recently fabricated or false. Compare Bechtel Constr. Co.

v. Sec’y of Labor, 50 F.3d 926, 935 (11th Cir. 1995), and Tidwell v. Carter

Products, 135 F.3d 1422, 1428 (11th Cir. 1998). Additionally, as the district court

recognized, this Court has also found that “[l]anguage not amounting to direct

evidence, but showing some racial animus, may be significant evidence of pretext

once a plaintiff has set out a prima facie case.” See District Court Opinion at 12

(quoting Jones v. Bessemer Carraway Med. Cntr., 151 F.3d 1321, 1323 n. 11 (11th

Cir. 1998)).

      Walker here urges all three bases to demonstrate that the reasons given for

her demotion were pretextual. She contends comparators outside her protected


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class were treated differently. She asserts she received positive performance

reviews in past years that contradict the assertions being made to support her

demotion. 2 Finally, she cites statements she claims were made by Mr. Oglesby 3

upon her demotion, see supra note 1, as proof that the articulated reasons now

being offered for her demotion are pretextual and that the demotion was due to her

race. Neither asserted basis for pretext is sustainable on this record.

       With respect to comparators, Walker points out that her replacement as

Team Leader, Rafael Agosto, a Hispanic male, and Rudy Oswell, a Caucasian

male Education Coordinator and Staff Blood Gas Lab Supervisor, both generated

staff complaints but were not demoted. The proffered “violations” and resulting

discipline for Agosto and Oswell do not establish pretext. Agosto is not a proper

comparator in light of the quality and quantity of the complaints against him.

There were two complaints against Agosto, only one of which had a paper record

and neither of which concerned his leadership abilities. Walker, in contrast, had

over a dozen complaints from seven different employees, and all complaints were

directed toward her leadership style. Oswell is not a proper comparator because as


2
  This district court summarily disposed of the suggestion that the employer’s reasons as
articulated on this record and presented to the EEOC were shifting or inconsistent, properly
concluding that “Defendant’s reasons and justifications [for Walker’s termination] have not
shifted.”
3
  Walker argues that even if the statements cannot be considered as direct evidence of
discriminatory animus in her demotion decision, they can be used as circumstantial evidence and
could be considered by a jury in combination with the full record to conclude that the articulated
reasons for her demotion are pretextual.
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an Education Coordinator, he had different duties and little leadership

responsibility. While he did have one complaint lodged against him at a time when

he held the titular position of “Team Leader,” that single incident is distinguishable

from Walker’s record. Walker’s arguments fail to support her claim of a

discriminatory demotion.

      With regard to prior positive job reviews, Walker argues that she was

recognized as a good team leader and received positive written performance

reviews and those who complained were just troublemakers. In fact, the

undisputed record shows that, though she was not formally disciplined, her

supervisor witnessed what he perceived to be inappropriate behavior by Walker

towards another employee and noted it in her file. Additionally, her last written

positive review was given before the complaints relied upon for her demotion

began. In any event, this argument is of no help to Walker because this Court does

not sit as a “super-personnel department,” second-guessing whether Walker’s

demotion was prudent. See Alvarez, 610 F.3d at 1266.

      Walker’s assertion that Oglesby’s alleged statement to her and his “non-

response” to his assistant are sufficient to rebut the employer’s articulated

legitimate business reasons also fails. Though abhorrent, if made, Oglesby’s single

isolated comment and his shrug in response to another employee’s analysis of the

circumstances of Walker’s demotion are insufficient under our precedent to


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establish that racial animus played a role in her demotion. Nor are they sufficient

to overcome the undisputed evidence that the employer had been made aware of

over a dozen complaints from seven of her team members concerning Walker’s

work performance and treatment of subordinates.

                                         III.

      Walker also argues that she was retaliated against because she filed a charge

with the EEOC. Walker bases her retaliation claim primarily on her transfer to the

Physical Therapy Department more than eighteen months after filing with the

EEOC, but also on her belief that St. Joseph’s did not investigate her personnel

complaints.

      The record establishes that a work-related injury prevented Walker from

performing her job as a Respiratory Therapist, yet the hospital continued to employ

her for nearly five more years. In light of her inability to do the work of a

respiratory therapist, St. Joseph’s has offered a legitimate business reason for her

transfer out of the Respiratory Therapy Department. Also, the record demonstrates

that St. Joseph’s did in fact investigate her complaints. Walker has not carried her

burden to demonstrate that the reasons given by St. Joseph’s to explain its actions

were pretext. Thus, Walker has failed to present sufficient evidence of a retaliatory

demotion or retaliation. For these reasons, the judgment of the district court is

AFFIRMED.


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