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                                                         [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 17-10075
                     ________________________

               D.C. Docket No. 2:12-cv-01088-BJR-SRW



MARIA N. VINSON,

                                             Plaintiff - Appellant,

versus

KOCH FOODS OF ALABAMA, LLC,
KOCH FOODS, LLC,
DAVID BIRCHFIELD,

                                             Defendants - Appellees.

                     ________________________

              Appeals from the United States District Court
                  for the Middle District of Alabama
                     ________________________

                            (May 23, 2018)
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Before WILSON and JORDAN, Circuit Judges, and CONWAY,* 1District Judge.

PER CURIAM:

       Maria Vinson, a Puerto Rican woman, sued her former employer, Koch

Foods of Alabama, LLC (Koch), and her former boss, David Birchfield, for race

and national origin discrimination under 42 U.S.C. § 1981 and Title VII. The

district court dismissed some of her claims, and later granted summary judgment

on the surviving claims. Vinson appeals both the dismissal and summary judgment

orders. After careful review of the briefs and the record, and having the benefit of

oral argument, we conclude that the district court erred in granting summary

judgment on Vinson’s discriminatory discipline and termination claims. We do

not find merit in Vinson’s challenge to the district court’s order of dismissal.

                                        I.        Facts

       Koch operates facilities where it kills, processes, and packages chicken and

byproducts. Birchfield is the Complex Human Resource Manager and oversees

and manages the Montgomery facility, where Vinson worked. Birchfield hired

Vinson in early 2010 to work in the HR department as a new hire orientation clerk

and translator. Her duties included processing new hires; translating, issuing and

verifying identification cards and documents; completing federal forms for all



*Honorable Anne C. Conway, United States District Judge for the Middle District of Florida,
sitting by designation.

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personnel; conducting personnel drug screening; maintaining personal attendance

records; and assisting with payroll.

      On January 5, 2012, Vinson and her co-worker, Heather Bowen (a white

female), asked Mitsi James, the senior HR person in the department (also a white

female), if they could visit a co-worker in the hospital. James approved. Bowen

and Vinson left and went off property for about three hours. James also left at the

same time, leaving the HR office unattended. When they returned to the plant,

Birchfield suspended all three until further notice. James and Bowen returned to

work on January 11. Vinson did not return to work until the following day, but she

was paid for the same amount of hours that James and Bowen worked on January

11.

      After the suspension, Birchfield changed Vinson’s job responsibilities.

Birchfield told Vinson that he wanted her to work with new hires on the production

floor. Her workstation in the HR office was removed, and she was required to

learn all of the production line duties, which included handling chicken carcasses

and operating machinery. Birchfield did not make similar changes to the duties of

James or Bowen. Vinson’s old job was filled by a Puerto Rican woman.

      Birchfield fired Vinson in May 2012. She was told “that her position was

not producing sufficient feedback and productivity,” and that her position was

being eliminated. In reply to Vinson’s Charge of Discrimination filed with the


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EEOC, Birchfield stated that Vinson was fired because plant manager Johnny Gill

reported that Vinson was not doing her job, the company could not afford the

position, and Gill wanted the position eliminated. But Gill later testified that he

did not recommend that Birchfield terminate Vinson. Since Vinson’s termination,

Koch has not hired anyone to perform Vinson’s role on the production floor.

                              II.     Standard of Review

      We review de novo the district court’s grant of summary judgment, drawing

“all reasonable inferences in the light most favorable to” Vinson. See Owen v. I.C.

Sys., Inc., 629 F.3d 1263, 1270 (11th Cir. 2011). Summary judgment may be

granted only if “there is no genuine issue as to any material fact and . . . the

moving party is entitled to a judgment as a matter of law.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509–10 (1986). A genuine issue

of material fact exists when “the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Id. at 248, 106 S. Ct. at 2510.

Summary judgment is appropriate only if a case is “so one-sided that one party

must prevail as a matter of law.” See id. at 251–52, 106 S. Ct. at 2512.

                           III.     Discriminatory Discipline

      Vinson can prevail on her discriminatory discipline claim by showing that

she engaged in misconduct similar to that of a person outside her protected class,

and that the disciplinary measures enforced against her were more severe than


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those enforced against that other person who engaged in similar misconduct. Jones

v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989). She must also suffer an adverse

employment action. See Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1238

(11th Cir. 2001). To prove an adverse employment action, Vinson “must show a

serious and material change in the terms, conditions, or privileges of employment.”

Id. at 1239 (emphasis omitted). Her “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.” Id.

      The district court erred in granting summary judgment on the discriminatory

discipline claim. The district court found that Vinson did not suffer an adverse

employment action because she did not mind being on the production floor, she

eventually received a raise, and her duties did not change significantly. However,

her subjective view of the change is not controlling. And although she received a

pay raise a month before she was fired, this does not necessarily make an adverse

employment action favorable. Vinson presented evidence that her transfer moved

her out of the HR office to the refrigerated production floor. She lost her computer

access and her office. Her duties now included pulling guts from chicken

carcasses, sawing chicken carcasses, hanging dead chickens on shackles, cutting

and removing damaged meat from chicken carcasses, using sealing machines for

packaging, and weighing boxes of meat. This was a significant change in duties.


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See Akins v. Fulton County, Ga., 420 F.3d 1293, 1300 (11th Cir. 2005) (“[I]f an

employer’s conduct negatively affects an employee’s salary, title, position, or job

duties, that conduct constitutes an adverse employment action.”) (emphasis added).

Neither James nor Bowen underwent such a change after the suspension. Because

a reasonable person in the circumstances could view Vinson’s transfer as adverse,

Vinson successfully stated a prima facie case.

      Further, Vinson presented sufficient evidence to permit a rational jury to

conclude that Birchfield’s reason for the transfer was pretext. Birchfield explained

that he wanted Vinson to interact more with production floor employees and assist

in training them in their new job responsibilities. But the evidence shows that it

was never clear what her new job actually entailed. She was never provided a job

description despite asking multiple times. The position does not exist on any

organizational chart or at any of the other processing plants. Gill did not know

what Vinson was doing on the production floor. And no one filled the position

after Vinson was fired. A reasonable jury could conclude that Birchfield created

this position for Vinson specifically because it was unnecessary, and, ultimately, it

gave him a reason to fire her.

                         IV.     Discriminatory Termination

      Vinson stated a mixed-motive theory for her discriminatory termination

claim. The appropriate framework for examining mixed-motive claims at


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summary judgment requires a court to determine only whether a plaintiff has

offered “evidence sufficient to convince a jury that: (1) the defendant took an

adverse employment action against the plaintiff; and (2) a protected characteristic

was a motivating factor for the defendant’s adverse employment action.” Quigg v.

Thomas Cty. Sch. Dist., 814 F.3d 1227, 1232–33 (11th Cir. 2016) (alteration

adopted).

      The district court granted summary judgment on Vinson’s discriminatory

termination claim for three reasons. First, the district court concluded that the

record did not discredit the defendants’ reasons for firing Vinson, ostensibly

requiring Vinson to show pretext. But pretext has no place in a motivating factor

analysis. See id. at 1237–38. Vinson did not need to discredit the defendant’s

reasons. She only needed to demonstrate a genuine issue of material fact as to

whether race or national-origin was a motivating factor in the decision to terminate

her. Even so, Vinson did present evidence that Birchfield’s reasons for firing her

were not the real reasons. Gill did not recall ever telling Birchfield that Vinson

was not doing her job or that he could not afford to keep the position. And Gill did

not recommend that Birchfield terminate Vinson.

      Second, the district court concluded that Birchfield’s hiring of a Puerto

Rican woman to replace Vinson in the HR office belies his alleged discriminatory

animus toward Hispanics. But there is no rule that requires Vinson to show that


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her replacement does not share her protected attribute. See Howard v. Roadway

Express, Inc., 726 F.2d 1529, 1534–36 (11th Cir. 1984); see also Stella v. Mineta,

284 F.3d 135, 145–46 (D.C. Cir. 2002); Perry v. Woodward, 199 F.3d 1126, 1136–

41 (10th Cir. 1999).

       Third, the district court concluded that Vinson “can point to nothing that

suggests that [her] race and/or national origin was a motivating factor in her

termination.” But she did offer evidence of Birchfield’s discriminatory animus.

For example, Patrick Rinn, the union representative for the Montgomery facility at

the time, observed Birchfield disciplining Hispanics more harshly than white

people. This evidence, along with the competing evidence surrounding

Birchfield’s explanation for Vinson’s termination, establishes a jury issue as to

whether race or national-origin was a motivating factor in the decision to terminate

her.

       We conclude that the district court erred in granting summary judgment on

Vinson’s discriminatory discipline and termination claims. The district court did




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not err in its disposition of any other claims. 2 Thus, we affirm in part, reverse in

part, and remand for proceedings consistent with this opinion.3

       AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




2
 We also reject Birchfield’s alternative argument that he was not properly named in the
complaint as being sued in his individual capacity and was not properly served. He raised this
argument for the first time in his reply brief in support of his motion for summary judgment.
Thus, he waived the argument. See Hemispherx Biopharma, Inc. v. Johannesburg Consol. Invs.,
553 F.3d 1351, 1360 (11th Cir. 2008).
3
 Because we reverse the district court in part, we need not decide whether the district court
abused its discretion by not awarding costs to the defendants.

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