                                                        [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 11-14977                ELEVENTH CIRCUIT
                         Non-Argument Calendar              MARCH 26, 2012
                       ________________________               JOHN LEY
                                                               CLERK
                    D.C. Docket No. 1:10-cv-23932-UU



TAMMY VALDES,

                                                         Plaintiff-Appellant,

                                  versus

MIAMI-DADE COLLEGE,

                                                         Defendant-Appellee.

                       ________________________

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

                             (March 26, 2012)

Before TJOFLAT, PRYOR and FAY, Circuit Judges.

PER CURIAM:

                                     I.
      In 1996, Miami-Dade College (MDC) employed Tammy Valdes as a part-

time instructor in its School of Justice (“SOJ”). In August 2006, the first of

several student complaints about Valdes’s classroom performance, especially

during exams, began to surface. Students said that she disturbed them during their

exams by talking loudly with profanity over her cell phone. SOJ’s internal

investigator, Lieutenant Donald Diecidue, investigated the complaint, speaking to

several students, and reported to SOJ’s Director of Training, Thomas Hood, that

the students’ complaints were valid. Hood met with Valdes and informed her that

such behavior would not be tolerated.

      On March 28, 2007, Shawnee Fross, who had been overseeing the

performance of 32 part-time instructors at MDC, including Valdes, informed Hood

and Dr. Donna Jennings, SOJ’s Director, of 10 incidents between September 13,

2006, and March 16, 2007, in which Valdes’s performance was lacking. Some of

the incidents involved missing a class, or canceling a class without notice, or

being late to class. On one occasion she failed to appear and proctor an

examination. One of the incidents involved complaints from instructors that she

had left a testing area to talk on her cell phone. Fross counseled Valdes after

receiving those complaints. On May 21, responding to Jennings’s request for

additional information on these 10 incidents, Fross wrote Jennings and Hood a

                                          2
memo identifying the specific class of students affected in each of the incidents.

      On May 28, 2007, Valdes filed a written grievance with the MDC Human

Resources Division, alleging that she was “being treated differently than other

instructors in [her] same position.” Such treatment, she said, had been going on

for nearly two years. Her grievance was investigated, and on July 5, 2007, SOJ

issued Valdes a written reprimand. The reprimand consisted of a synopsis of the

10 incidents Fross had reported on March 28 and May 21. Following the issuance

of the reprimand, Fross continued monitoring Valdes’s performance.

      On October 8, 2007, Fross recorded that Valdes called to complain about

the number of hours she was working. On October 9, she recorded that Valdes

disrupted another instructor’s class with her “bitching.” On October 10, Barbara

Goodman, an instructor, informed Fross that a female African-American student

had complained that a female Hispanic instructor had referred to the students as

“idiots.” At the time of this incident, Valdes was the only female Hispanic

instructor on the job. Fross noted that a month before the incident Goodman

described, Fagan, another instructor, advised her to stop using Valdes as an

instructor because her negative tone and unprofessional language was detrimental

to student morale.

      On June 1, 2009, a student informed Lieutenant Diecidue that Valdes had

                                          3
acted unprofessionally during a final exam. Diecidue told Fross, who requested

that he meet with the class. During the meeting, several students stated that

Valdes disrupted the exam by talking on her cell phone. When the meeting ended,

Diecidue directed the students to submit a written statement. Fourteen students

signed a statement written by their class leader, which stated, among other things,

that Valdes had used SOJ’s ammunition and a student’s magazines while taking

target practice at the Miami Police Department’s Medley Firearms Range. When

the Diecidue informed Hood of this allegation, Hood asked him to delve into the

matter further.

      On June 11, 2009, Valdes complained to SOJ’s Director, then Ronald

Grimmings, that she had received no response from the May 28, 2007 grievance

she had filed with MDC’s Human Resources Division. That same day, June 11,

Hood sent Valdes a letter suspending her without pay pending the outcome of

Diecidue’s investigation.

      In August, Diecidue gave Hood a final report of his investigation. The

report confirmed the validity of the complaints the students had made. On

October 6, 2009, Valdes filed a complaint with the Equal Employment

Opportunity Commission (“EEOC”), alleging that her June 11 suspension without

pay constituted an act of gender discrimination. She claimed that “male

                                         4
instructors have been the subject of similar and more serious investigations; yet,

the male employees were not suspended while they were being investigated.” On

October 21, 2009, Grimmings sent Valdes a letter terminating her employment.

      On April 14, 2010, Valdes filed a second EEOC complaint, alleging that her

termination was discriminatory and in retaliation for her having filed the EEOC

complaint on October 6, 2009. In August 2010, EEOC issued a right to sue letter

for the October 6 complaint. On October 29, 2010, Valdes brought this lawsuit.

                                           II.

      Valdes’s complaint, as amended, contained eight counts: Counts 1 and 5

alleged that her suspension on June 11, 2009, and termination on October 21,

2009, constituted gender discrimination, in violation of Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq. Counts 3 and 7

alleged that the gender discrimination described in Counts 1 and 5 violated the

Florida Civil Rights Act (“FCRA”), Fla. Stat. § 760.01, et seq. Counts 2 and 6

alleged that the June 11 suspension and October 21 termination constituted

retaliation under Title VII for engaging in protected activity, i.e., filing the

grievance on May 28, 2007, and the EEOC complaint on October 6, 2009. Counts

4 and 8 alleged that the conduct described in Counts 2 and 6 violated FCRA.

      MDC answered Valdes’s complaint and denied liability. And, following

                                           5
discovery, it moved the court for summary judgment.1

       The district court addressed the merits of Valdes’s Title VII and FCRA

claims using the standards required to make out a claim under Title VII. See

Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998)

(“decisions construing Title VII guide the analysis of claims under [FCRA]”). The

court first addressed the gender discrimination claims, then the retaliation claims.

       Title VII prohibits an employer from discharging an employee, or otherwise

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

42 U.S.C. § 2000e-2(a)(1). To establish a prima facie case of disparate treatment, a

female plaintiff must show that her employer treated similarly situated male

employees differently. See Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.

1999). This gender-based disparate treatment is what Valdes alleged in her EEOC

complaints and in the district court.

       In determining whether the comparator employees Valdes named in her

complaint were similarly situated, the district court properly considered whether

they were involved in, or accused of, the same or similar conduct and disciplined

differently. Id. The quality and quantity of the plaintiff’s and the comparators’


       1
           Valdes asked the district court to postpone consideration of the motion so she could
engage in further discovery, but the court denied her request. Valdes challenges the ruling in this
appeal. The challenge is meritless, as the district court acted well within its discretion.

                                                 6
misconduct must be “nearly identical” in order to prevent courts from

second-guessing reasonable employer decisions by comparing apples with oranges.

Id. Misconduct merely similar to that for which the plaintiff was disciplined is not

sufficient. Rioux v. City of Atlanta, 520 F.3d 1269, 1280 (11th Cir. 2008).

      As the district court noted, Valdes’s complaint “name[d] ten male employees

who were investigated for misconduct; yet, unlike Valdes, never suspended without

pay during their investigations.” Order, October 5, 2011 (“Order”) at 12. But,

other than the bare allegations of her complaint, “Valdes provide[d] no additional

information on seven of the alleged ‘comparators.’” Id. “Valdes made no showing

at all.” Id. at 13. “As for the remaining three conparators (Mitchell, Delgado, and

Bruzinski), Valdes present[d] evidence of allegations that no reasonable fact-finder

could consider to be “nearly identical” in “quality and quantity” to satisfy the legal

standard set in Maniccia, supra, at 1368.” Id. Because Valdes failed to present

evidence of similarly situated comparators, the district court granted MDC

summary judgment on herTitle VII and FCRA gender discrimination claims.

      Having disposed of these claims, the district court turned to Valdes’s

retaliation claims. Title VII prohibits retaliation against an employee for opposing

any practice made unlawful by Title VII (“Opposition Clause”) or for filing a

charge with the EEOC pursuant to Title VII (“Participation Clause”). To establish

                                           7
a prima facie case, a plaintiff must show: (1) that she engaged in statutorily

protected expression; (2) that she suffered an adverse employment action; and (3)

that there is some casual relationship between the protected activity and the adverse

action. McCann v. Tillman, 526 F.3d 1370, 1375 (11th Cir. 2008). A plaintiff can

show that she engaged in a protected activity if she proves that she had a subjective

good faith belief, as well as an objective, reasonable belief that her employer

engaged in an unlawful employment practice when she opposed that practice. See

Dixon v. The Hallmark Cos., 627 F.3d 849, 947 (11th Cir. 2010). An allegation of

unfair treatment, absent discrimination based on gender, does not state an unlawful

employment practice under Title VII. Coutu v. Martin Cnty. Bd. of Comm’rs, 47

F.3d 1068, 1074 (11th Cir. 1995). Furthermore, to establish a causal connection,

the plaintiff must show that the employer making the adverse employment action

was aware of the protected conduct. McCann, 526 F.3d at 1376.

      Valdes claims that the grievance she filed with MDC’s Human Resources

Division on May 28, 2007 constituted a protected activity and that her suspension

without pay on June 11, 2009, constituted an act in retaliation for her having filed

the grievance. The district court rejected her Title VII and FCRA retaliation claims

on two grounds. First, since the “grievance [was] essentially a list of workplace

complaints unrelated to Title VII, there [was] no need to determine whether [MDC]

                                          8
unlawfully retaliated against Valdes.” Order at 24. But even if viewed as protected

activity, Valdes failed to show a causal link between the grievance and the

suspension. “Considering the numerous allegations against Valdes in Diecidue’s

investigation, no reasonable fact-finder could find that [MDC] [did] not satisf[y] its

‘exceedingly light’ burden of proffering a legitimate reason for suspending Valdes”

id. at 26, “namely the students’ allegations.” Id. at 28.

      Valdes claims that her termination on October 21, 2009 was in retaliation for

her having filed a complaint with the EEOC on October 6, 15 days earlier. As the

district court properly held, the filing constituted protected activity. Though

Valdes swore to the complaint’s allegations before a notary public on October 6,

the EEOC did not receive it until October 20, and MDC was not aware of the filing

on October 21. In addition, the court noted that Bettie Thompson, Vice Provost for

Human Resources at MDC, made the decision to fire Valdes because, as far back as

2006, “Valdes had been counseled for being disrespectful to students.” Id. at 31.

And, [s]ince Valdes . . . offered no evidence to show that Thompson’s reasons were

pretextual, even if [the court] assumed that Thompson was aware of the EEOC

complaint, . . . no question of material fact exist[ed] on the question of whether

[MDC] unlawfully retaliated against Valdes by firing her.” Id. The court therefore

rejected Valdes’s Title VII and FCRA retaliation claims as well.

                                           9
                                          III.

      Valdes appeals the district court’s judgment on all counts. She argues that

the district court erred in rejecting her gender discrimination claims for failure to

present evidence of similarly situated comparators; that the court erred in

concluding that she failed to make out a prima facie case on her claims of

retaliation; and that the court relied on inadmissible hearsay when it considered

Lieutenant Diecidue’s report, which contained information related to him by

students and instructors. We find no merit in Valdes’s challenges to Diecidue’s

report, which was filed in August of 2009. The report had a bearing on

Thompson’s October 21, 2009 decision to fire Valdes; Hood’s June 11, 2009

decision came before Diecidue filed the report. The report, and the information it

related, was not received for the truth of the contents; rather, it was received for the

purpose of showing, in part, what prompted Thompson’s decision.

      As for the district court’s rejection of Valdes’s claims of gender

discrimination and retaliation, we find no merit in Valdes’s arguments. The district

court viewed the evidence before it in the light most favorable to Valdes, as it was

required to do on summary judgment, and it correctly applied the relevant law to

the facts that evidence yielded. The court therefore did not err in concluding that

Valdes failed to establish a case on any of her counts. The judgment of the district

                                           10
court is, accordingly,

      AFFIRMED.




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