           Case: 14-11963   Date Filed: 12/30/2014   Page: 1 of 14


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-11963
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 3:12-cv-01045-BJD-MCR



VALINDA CARTER,

                                                            Plaintiff-Appellant,

                                 versus

COLUMBIA COUNTY, BOARD OF COUNTY COMMISSIONERS,
MARK HUNTER,
in his official capacity as Sheriff, Columbia County, Florida,

                                                        Defendants-Appellees.

                       ________________________

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

                            (December 30, 2014)

Before HULL, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Plaintiff Valinda Carter appeals the district court=s grant of summary

judgment to Defendants on her race discrimination and retaliation claims asserted

under Title VII of the Civil Rights Act of 1964 (ATitle VII@), 42 U.S.C. ' 2000e et

seq., and the Florida Civil Rights Act (the AFCRA@), Fla. Stat. ' 760.01 et seq.

Plaintiff=s claims arise out of her termination as a dispatcher and shift supervisor for

the Columbia County Communications Center. The district court found that

Plaintiff failed to establish a prima facie case of discrimination or retaliation and,

alternatively, that Plaintiff did not present any evidence of pretext to rebut the

legitimate reasons offered to explain her termination. For the reasons that follow,

we affirm.

                                 I. BACKGROUND

      Plaintiff, an African-American woman, began working as a dispatcher in the

Columbia County Sheriff=s Office in 1999. In December 2008, the Columbia

County Board of County Commissioners (ACCBCC@) transferred the Sheriff=s

dispatch unit to a centralized County Communications Center. As a result of the

transfer, Plaintiff became an employee of the CCBCC. Plaintiff was promoted to

the position of shift supervisor in August 2009. In this position, Plaintiff continued

to perform her regular dispatching duties but also assumed responsibility for training

new hires and monitoring other dispatchers on her shift.


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      The incident that led to Plaintiff=s termination occurred on August 1, 2011.

Plaintiff was at home when she received a phone call from her brother, Kavin Carter,

who had been stopped by Columbia County Deputy Joshua Latimer for a seatbelt

violation. According to Plaintiff, the purpose of her brother=s call was to maintain

an Aopen line@ so that Plaintiff could hear what was happening during the traffic stop.

At some point during the stop, Latimer took the phone from Kavin Carter and began

speaking to Plaintiff. Plaintiff claims that Latimer was Ahostile, arrogant, cocky,

and otherwise rude@ during his conversation with her.

      Latimer immediately prepared a report about the traffic stop and his

interaction with Plaintiff. In the report, Latimer stated that he began the

conversation by greeting Plaintiff. According to Latimer, he was unable to say

anything else because Plaintiff began yelling at him and accusing him of racially

profiling her brother. Latimer claimed that he attempted to inform Plaintiff over

her yelling that she could call his supervisor, Corporal Greg Horne, if she wished to

file a complaint, but that he eventually hung up the phone because he did not want to

hear Plaintiff yell at him any longer. Latimer submitted his report, along with a

recording of the traffic stop from his dash mounted camera and body microphone, to

Corporal Horne. Horne forwarded the report and recording to Captain Jeff

Coleman, who then sent the materials to Major Wallace Kitchings.


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      On August 5, 2011, Communications Center Director Sandy Waschek gave

Plaintiff a copy of Latimer=s report, which she had received from Major Kitchings a

few days prior. Upon learning that the report would be placed in her personnel file,

Plaintiff prepared a rebuttal statement. In her rebuttal, Plaintiff indicated that

Latimer conducted himself in an unprofessional and Ahostile@ manner while

speaking with her during the traffic stop, yelling and engaging in an Aarrogant, snide,

tirade@ during which Plaintiff was not allowed to speak. Plaintiff emailed her

rebuttal to Waschek on August 7, 2011.

      When Plaintiff drafted her rebuttal, she was not aware that her brother=s traffic

stop had been recorded by Latimer=s dash camera and body microphone. Major

Kitchings sent the recordings to Waschek on August 16, 2011. After reviewing the

recordings, Waschek concluded that they were inconsistent with Plaintiff=s account

of Latimer=s conduct in her rebuttal. Wascheck met with County Manager Dale

Williams and CCBCC Human Resources Director Michele Crummitt to discuss a

proper response. Based on their review of the recordings, Williams and Crummitt

agreed that Plaintiff=s rebuttal was Ablatantly false.@ Consequently, Waschek

placed Plaintiff on administrative leave pending a full investigation into the incident.

      On August 24, 2011, Wascheck met with Plaintiff, Crummitt, and Assistant

Director of the Communications Center Patricia Coker. During the meeting,


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Waschek informed Plaintiff of the CCBCC=s decision to terminate her employment.

The stated reason for Plaintiff=s termination was violation of a County policy

prohibiting lying, falsification of a document, or other dishonesty, as evidenced by

the discrepancy between the recorded evidence and Plaintiff=s rebuttal statement.

      Plaintiff subsequently filed this action asserting race discrimination and

retaliation claims under Title VII and the FCRA. The district court granted

summary judgment to Defendants on all of Plaintiff=s claims. This appeal ensued.

                                 II. DISCUSSION

A.    Standard of Review

      We review de novo the district court=s grant of summary judgment.

Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012).

In conducting our review, we draw all factual inferences and view all evidence Ain

the light most favorable to the non-moving party.@ Moton v. Cowart, 631 F.3d

1337, 1341 (11th Cir. 2011). Summary judgment is only appropriate if Athere 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).




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B.     Plaintiff=s Race Discrimination Claim

       Title VII prohibits employment discrimination on the basis of a statutorily

protected characteristic such as race.1 42 U.S.C. ' 2000eB2(a)(1). Where, as in

this case, a plaintiff relies on circumstantial evidence to prove discrimination, we

apply the familiar burden-shifting framework articulated in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973). Alvarez v. Royal Atl.

Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). Under that framework, the

plaintiff must first establish a prima case of discrimination. Id. If the plaintiff

meets her burden, the employer can rebut the resulting presumption of

discrimination by articulating a legitimate non-discriminatory reason for its

challenged employment action. Id. Plaintiff then has an opportunity to produce

evidence that the proffered reason is a pretext for discrimination. Id.

       1.     Plaintiff failed to establish a prima facie case of discrimination.

       The available methods of establishing a prima facie case Aare flexible and

depend on the particular situation.@ Id. As relevant to this case, Plaintiff can meet


1
  The same analysis applies to Plaintiff=s Title VII and FCRA claims. See Jones v. United Space
Alliance, L.L.C., 494 F.3d 1306, 1310 (11th Cir. 2007) (AFlorida courts apply Title VII caselaw
when they interpret the FCRA@). Plaintiff also references 42 U.S.C. ' 1981 in the opening
paragraph of her amended complaint. To the extent Plaintiff intended to assert a discrimination
claim under ' 1981, that claim is also governed by the Title VII analysis. See Chapter 7 Tr. v.
Gate Gourmet, Inc., 683 F.3d 1249, 1257 (11th Cir. 2012) (noting that Title VII and ' 1981 claims
have the same requirements and are governed by the same analytical framework).


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her burden with evidence that (1) she is a member of a protected class, (2) she was

qualified for the position that she held, (3) she was terminated from that position,

and (4) in terminating her employment, Defendants treated Plaintiff less favorably

than a similarly situated employee outside of her protected class. Smith v.

LockheedBMartin Corp., 644 F.3d 1321, 1325 (11th Cir. 2011). Defendants

concede that Plaintiff has shown the first three elements. As to the fourth element,

Plaintiff contends that Defendants treated her less favorably than Tiffany Aderholt, a

white dispatcher who was suspended rather than terminated for allegedly similar

misconduct.

      We agree with the district court that Aderholt is not a proper comparator

because she was not Asimilarly situated@ to Plaintiff. See Holifield v. Reno, 115

F.3d 1555, 1562 (11th Cir. 1997) (explaining that employees are Asimilarly situated@

for purposes of establishing a prima facie case if they are Ainvolved in or accused of

the same or similar conduct and are disciplined in different ways@). Based on the

record evidence, Aderholt was disciplined for (1) cursing at a deputy in front of

other employees at the Communications Center and (2) subsequently refusing to

answer a call from the same deputy and abandoning her work station. Aderholt=s

misconduct was classified by the County disciplinary policy as Group I offenses

involving discourtesy and warranting suspension, which is the discipline that


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Aderholt received for both incidents.2 Plaintiff, on the other hand, was terminated

for lying and making false accusations against Latimer. Plaintiff=s misconduct was

classified by the policy as a Group III offense involving lying, falsification of

documents, or other dishonesty. The policy recommended termination for a first

Group III offense.

         Plaintiff=s attempt to reframe Aderholt=s misconduct as an offense similar to

her own is not supported by the record. Contrary to Plaintiff=s suggestion, there is

no evidence that Aderholt falsified documents or asserted fabricated misconduct

allegations against another employee. Moreover, Plaintiff=s own assessment that

Aderholt=s conduct was Amuch worse@ than her own, because it occurred twice and

while Aderholt was on duty, is irrelevant. See Alvarez, 610 F.3d at 1266-67

(emphasizing that discriminatory intent must be gauged from the employer=s

perspective); Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1325 (11th Cir.

2006) (A[d]ifferent types and degrees of misconduct may warrant different types and

degrees of discipline@).

         Although Plaintiff relied solely on a comparator theory in the district court,

she argues on appeal that there is other evidence of intentional discrimination

sufficient to establish a prima facie case. As Plaintiff correctly notes, her Afailure to

2
    Aderholt was terminated in March 2012 for poor work performance.


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produce a comparator does not necessarily doom@ her discrimination claim. Smith,

644 F.3d at 1328. Even in the absence of a comparator, summary judgment is

inappropriate if the plaintiff Apresents circumstantial evidence that creates a triable

issue concerning the employer=s discriminatory intent.@ Id. However, Plaintiff has

failed to present such evidence in this case.

      As an example of other evidence, Plaintiff cites a warning Waschek allegedly

received from an unidentified person in the Sheriff=s Office not to discipline Plaintiff

because she would go to the NAACP. Assuming this warning occurred, it is not

indicative of intentional discrimination. If anything, Waschek=s neutral

enforcement of the County=s disciplinary policy in spite of the warning undercuts

any inference of racial discrimination. Plaintiff also relies on a statement by Major

Kitchings, during his investigation concerning the rebuttal statement, that this was

not Plaintiff=s Afirst incident.@ Plaintiff does not explain, and we do not see, how

this statement could possibly indicate racial animus. The only other evidence

Plaintiff presents is her own unsubstantiated belief that Defendants Ahad their minds

made up about Plaintiff from the beginning.@ Such conclusory allegations are

insufficient to support a plausible inference of intentional discrimination. Mayfield

v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996); see also Ellis v.




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England, 432 F.3d 1321, 1326 (11th Cir. 2005) (Amere conclusions and unsupported

factual allegations are legally insufficient to defeat a summary judgment motion@).

      2.     Plaintiff failed to rebut the legitimate reason offered by Defendants to
             explain her termination.

      Assuming Plaintiff could establish a prima facie case of discrimination,

Defendants still are entitled to summary judgment. Defendants contend that

Plaintiff was fired because she lied and fabricated allegations against Latimer in her

rebuttal statement, an offense that warrants immediate termination under the

County=s disciplinary policy. Defendants argue further that Plaintiff=s false

statements called into question her trustworthiness: an essential quality for a

dispatcher. These explanations constitute legitimate nondiscriminatory reasons for

Plaintiff=s termination. See Holifield, 115 F.3d at 1564 (describing the employer=s

intermediate burden as Aexceedingly light@); see also Chapman v. AI Transp., 229

F.3d 1012, 1024 (11th Cir. 2000) (en banc) (noting that Athe employer=s burden is

merely one of production@).

      At this stage, Plaintiff must present some evidence of pretext to withstand

summary judgment. Chapman, 229 F.3d at 1024-25. A plaintiff may show

pretext A>either directly by persuading the court that a discriminatory reason more

likely motivated the employer or indirectly by showing that the employer=s proffered

explanation is unworthy of credence.=@ Jackson v. State of Ala. Tenure Comm=n,

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405 F.3d 1276, 1289 (11th Cir. 2005) (quoting Tex. Dep=t of Cmty. Affairs v.

Burdine, 450 U.S. 248, 256, 101 S. Ct. 1089, 1095 (1981)). Whichever method is

used, the plaintiff=s pretext evidence must permit a reasonable inference that the

challenged employment action was motivated by unlawful discriminatory animus.

Alvarez, 610 F.3d at 1266. The district court correctly held that Plaintiff failed to

meet this burden.

      Plaintiff=s pretext argument primarily consists of her denial that she ever was

dishonest, and her insistence that the information provided in her rebuttal was

truthful and accurately described her perception of Latimer=s conduct. This

argument does not account for the numerous and obvious discrepancies between the

video and audio recording of Latimer=s conduct and Plaintiff=s description of his

conduct in the rebuttal. Given the recorded evidence, Plaintiff=s unsupported denial

of misconduct is insufficient to establish pretext. Id. (A[t]he inquiry into pretext

centers on the employer=s beliefs, not the employee=s beliefs@).

      The only other evidence Plaintiff cites to establish pretext is the more

favorable treatment allegedly received by white dispatcher Aderholt. According to

Plaintiff, the inconsistent application of discipline creates doubt about the proffered

reasons for Plaintiff=s termination and demonstrates hostility towards Plaintiff. As

discussed, the record shows that Aderholt did not engage in the same type of


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misconduct as Plaintiff. Thus, the fact that Aderholt did not receive the same

discipline as Plaintiff does not demonstrate pretext. See Kragor v. Takeda Pharm.

Am., Inc., 702 F.3d 1304, 1308 n. 1 (11th Cir. 2012) (AThe opportunity provided to a

plaintiff to show pretext is simply an opportunity to present evidence from which the

trier of fact can find unlawful discrimination.@).

      C.     Plaintiff=s Retaliation Claim

      Title VII=s anti-retaliation provision prohibits retaliation against an employee

for opposing a discriminatory employment practice or participating in an

Ainvestigation, proceeding, or hearing@ concerning employment discrimination. 42

U.S.C. ' 2000eB3(a). Retaliation claims based on circumstantial evidence are

analyzed under the McDonnell Douglas burden-shifting framework discussed

above. Brown v. Ala. Dep=t of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010). A

plaintiff can establish a prima facie case of retaliation by showing that (1) she

engaged in statutorily protected activity, (2) she suffered an adverse employment

action, and (3) there is a causal relationship between the two events. Id. The

employer then has the opportunity to articulate a non-retaliatory reason for its

employment action, which the plaintiff can rebut with evidence of pretext. Id. at

1181-82.

      Plaintiff acknowledges that she did not actually engage in any protected


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activity. In support of her prima facie retaliation case, Plaintiff relies on a

Aperception theory@ of protected conduct. See Fogleman v. Mercy Hosp., Inc., 283

F.3d 561 (3d Cir. 2002). Under the perception theory, a plaintiff can show

retaliation based on her employer=s mistaken belief that she engaged in protected

activity. Id. at 571-72. Although Plaintiff denies that she ever complained about

race discrimination, she claims that she was targeted and ultimately terminated

because Defendants mistakenly believed Latimer=s report that Plaintiff had accused

him of racial profiling. According to Plaintiff, this satisfies the protected activity

requirement.

      We have not adopted the perception theory of retaliation, and this case does

not require us to decide whether the theory is valid in this Circuit. Assuming

Plaintiff can somehow establish protected activity and the other prongs of her prima

facie case, Defendants assert that Plaintiff was terminated because she lied and

fabricated allegations against Latimer in her rebuttal statement. Plaintiff=s conduct,

which is well-documented in the record, was categorized as a Group III offense

warranting immediate termination under the County=s disciplinary policy. In

addition, Plaintiff=s rebuttal statements called into question her trustworthiness,

which is an essential quality for a dispatcher. These explanations constitute

legitimate non-retaliatory reasons for Plaintiff=s termination, which Plaintiff has


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failed to rebut with any evidence of pretext. Defendants are thus entitled to

summary judgment on Plaintiff=s retaliation claim. See Rojas v. Florida, 285 F.3d

1339, 1344 (11th Cir. 2002) (affirming summary judgment on a plaintiff=s retaliation

claim where she failed to present sufficient pretext to rebut the non-retaliatory

reasons offered for her termination).

                                III. CONCLUSION

      For all of the above reasons, we find that the district court properly granted

summary judgment to Defendants on Plaintiff=s Title VII and FCRA claims.

Accordingly, the district court=s judgment is AFFIRMED.




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