               Case: 16-10579   Date Filed: 03/27/2017   Page: 1 of 11


                                                          [DO NOT PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 16-10579
                             Non-Argument Calendar
                           ________________________

                     D.C. Docket No. 4:15-cv-00064-RH-CAS

SANDRA F. ADDISON,

                                                  Plaintiff - Appellant,

versus

FLORIDA DEPARTMENT OF CORRECTIONS,

                                              Defendant - Appellee.
                           ________________________

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

                                 (March 27, 2017)

Before MARTIN, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:

         Sandra F. Addison appeals the district court’s order granting summary

judgment in favor of the Florida Department of Corrections. Ms. Addison argues

that the district court erred in rejecting her race and age discrimination claims, as
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well as her retaliation claim. The Department, in response, contends that Ms.

Addison failed to present sufficient evidence that she suffered an adverse

employment action because of her race or age, or because she had engaged in

protected activity. After reviewing the record and the parties’ briefs, we affirm.

                                          I

      Because we write for the parties, we assume their familiarity with the

underlying facts of the case and recite only what is necessary to resolve this appeal.

      The Department operates the Gulf Correctional Institution, which has three

facilities: Gulf Main, Gulf Annex, and Gulf Forestry Camp. Ms. Addison, an

African-American woman over the age of 50, began working for the Department in

1990, eventually becoming captain at Gulf Annex.

      In October of 2012, however, the Department transferred Ms. Addison and

25 other officers (some of whom were also African-American) to Gulf Main as

part of a broad reorganization. The transfer did not affect Ms. Addison’s title,

duties, pay, or hours, but she preferred being at Gulf Annex.

      At Gulf Main, Ms. Addison took over a shift that had previously belonged to

a white captain. Her new subordinates apparently did not like this, allegedly

refusing her orders on several occasions and falsely accusing her of using

derogatory language.     Ms. Addison filed multiple incident reports regarding




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insubordination and inmate abuse, but the Department did not correct the

problems.

      On February 10, 2014, during the morning meal, an inmate threw a food tray

at correctional officer April Faircloth.     Herman Sapp, the on-duty sergeant,

questioned Ms. Faircloth. Ms. Faircloth told Mr. Sapp that an inmate threw a food

tray at her, but missed. Ms. Faircloth also spoke with Ms. Addison, and told her

the same thing. Ms. Addison asked Ms. Faircloth if she needed medical attention,

but she said no. Ms. Addison then instructed Ms. Faircloth to complete an incident

report, which she did, but Ms. Addison left her shift before reviewing it. In the

incident report, Ms. Faircloth deviated from what she had told Ms. Addison and

Mr. Sapp and stated that she had been hit with the food tray and food.

      The following day, Colonel Crayton Shaw reviewed Ms. Faircloth’s incident

report and interviewed her. Mr. Shaw learned that Ms. Faircloth had reported the

incident to Ms. Addison and realized that Ms. Addison had not filed her own staff

battery report. So Mr. Shaw completed the paperwork for a staff battery, notified

the inspector general’s office, briefed Warden James Blackwood, and transferred

the inmate to Gulf Annex. He also instructed Ms. Faircloth to undergo a medical

evaluation, which she did. The evaluation did not reveal any injuries.

      Upon learning of the incident and Ms. Addison’s alleged failure to report a

staff battery, Mr. Blackwood instructed the assistant warden, James Peters, to



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review the relevant incident reports and determine what happened. Mr. Peters

detailed his findings in a memorandum to Mr. Blackwood on February 14, 2014.

After reviewing the memorandum, Mr. Blackwood concluded that Ms. Addison

had violated Department policy by failing to report a staff battery, and

recommended that Ms. Addison be terminated.

      On February 18, 2014, Ms. Addison received a pre-discipline letter notifying

her of the Department’s intention to take disciplinary action that could result in

termination. Ms. Addison subsequently attended a pre-determination conference,

where she was able to present her side of the story. Ms. Addison testified on her

own behalf and called Mr. Sapp as her witness. They both maintained that Ms.

Faircloth had said that she had not been hit by the tray. But Ms. Addison admitted

knowing that Ms. Faircloth had been hit with food and had broken the seal on her

chemical spray. Still, she explained that she did not believe those circumstances

triggered the staff-battery reporting requirements.

      About a month later, Mr. Blackwood offered Ms. Addison a demotion in lieu

of termination, on the condition that she release all claims against the Department.

He offered her a pre-disciplinary settlement agreement to that effect, which Ms.

Addison signed. She was demoted to sergeant, a position she still holds. Prior to

her demotion, Ms. Addison had never received any formal disciplinary action.

Kenneth Stephens, who is younger and white, replaced Ms. Addison as captain.



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                                         II

      We review a district court’s grant of summary judgment de novo. See

Moton v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). In doing so, we draw all

inferences and review all of the evidence in the light most favorable to the non-

moving party. See id. The party moving for summary judgment bears the burden

of demonstrating that there is no genuine dispute of any material fact and that it is

entitled to judgment as a matter of law. See id.

                                         III

      Ms. Addison filed this lawsuit against the Department, alleging that her

transfer to Gulf Main and her demotion to sergeant were motived by race and age

discrimination. She also alleged that they were in retaliation for her complaints

about discrimination and other subordinate and inmate misconduct. Ms. Addison

asserted claims under Title VII of the Civil Rights Act of 1964, the Florida Civil

Rights Act, and the Florida Whistle-blower’s Act.

      Federal and Florida antidiscrimination laws prohibit discrimination on the

basis of race and age. See 42 U.S.C. § 2000e-2(a)(1); Fla. Stat. § 760.10(1)(a).

Claims brought under the FCRA are analyzed under the same standards as Title

VII because the FCRA is modeled on Title VII. See, e.g., Jones v. United Space

Alliances, L.L.C., 494 F.3d 1306, 1310 (11th Cir. 2007) (“Florida courts apply

Title VII caselaw when they interpret the FCRA”).



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      Where, as here, there is no direct evidence of discrimination, a plaintiff must

demonstrate discrimination circumstantially, usually by relying on the burden-

shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S.

792, 802 (1973). To establish a prima facie case of race or age discrimination a

plaintiff must show that (1) she is a member of a protected class; (2) she was

qualified for the job; (3) she suffered an adverse employment action; and (4) her

employer treated similarly situated employees outside the protected class more

favorably or, for a termination, was replaced by a person outside the protected

class. See, e.g., Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999).

      A plaintiff who establishes a prima facie case of discrimination creates “a

presumption that the employer unlawfully discriminated against [him or her].”

Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). To rebut this

presumption, the employer must articulate a legitimate, nondiscriminatory reason

for its decision. See McDonnell Douglas, 411 U.S. at 802–03. Once the employer

proffers a nondiscriminatory reason, the presumption disappears and the plaintiff

retains the ultimate burden of persuasion to demonstrate that the employer

intentionally discriminated on the basis of a protected classification. See id.

      Ms. Addison is a member of two protected classes based on her age (which

is above 40) and race (black). And there is no dispute that she was qualified to

hold her previous position as captain. Ms. Addison relies on two incidents as her



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adverse employment actions: the transfer to Gulf Main and her demotion from

captain to sergeant.

      An employee suffers an adverse employment action when there is “a serious

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

v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001) (emphasis in

original).    A lateral transfer, without more, does not amount to an adverse

employment action. See, e.g., Hinson v. Clinch County Ga. Board of Educ., 231

F.3d 821, 829 (11th Cir. 2000) (“[A] transfer to a different position can be

‘adverse’ if it involves a reduction in pay, prestige or responsibility.”).     Ms.

Addison has not shown that her transfer to Gulf Main amounted to an adverse

employment action because there is no evidence that her title, duties, pay, or hours

changed in any material way (if at all). Ms. Addison therefore cannot rely on her

transfer to Gulf Main to establish a prima facie case of discrimination.

      Ms. Addison did, however, provide sufficient evidence showing a prima

facie case of race and age discrimination as to her demotion to sergeant. Ms.

Addison’s demotion from captain to sergeant constitutes an adverse employment

action because she received a reduction in prestige and responsibility. See id. And

she was replaced with an individual outside of her protected classes, a younger,

white male.




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      Because Ms. Addison established a prima facie case that her demotion was

discriminatory, the burden shifted to the Department to articulate a legitimate,

nondiscriminatory basis for the demotion. The Department met its burden and

proffered a nondiscriminatory reason. Specifically, according to the Department,

Ms. Addison was demoted for failing to properly report the battery on her

subordinate, Ms. Faircloth, as required by the Department’s policies.

      After the Department came forth with a nondiscriminatory reason, Ms.

Addison was left to show that the proffered reason was pretext for discrimination.

See McDonnell Douglas, 411 U.S. at 804. To do so, and create an issue of fact,

she had to demonstrate “such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions in the employer’s proffered legitimate reasons for

its action that a reasonable factfinder could find them unworthy of credence.”

Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997). Ms. Addison

provided two theories in support of her argument that the purported failure to

report a staff battery was pretext.

      Ms. Addison first pointed to discussions her subordinates had been having

about the possibility that she would be replaced by Mr. Stephens. Specifically, one

subordinate testified that there was “gossip” and another said there were “rumors”

along these lines. Because this gossip apparently predated the battery on Ms.

Faircloth, Ms. Addison contends that it establishes that the failure to report the



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staff battery was pretextual, because management intended to replace Ms. Addison

all along.

      There are two major problems with this argument.           First, what a few

subordinates heard from a group of other unidentified subordinates—even if

somehow admissible—says nothing about what the warden, the ultimate

decisionmaker, actually intended to do.      Second, we know nothing about the

context of these rumors. Vague gossip such as this is hardly evidence that, even if

Ms. Addison was on the cusp of demotion before the incident involving Ms.

Faircloth, the intent to demote her was based on discriminatory animus.

      Ms. Addison also alleged that two employees outside her protected class—

Ms. Faircloth (a younger person) and Mr. Sapp (a white person)—were not

disciplined for equally serious policy violations.        In this Circuit, alleged

comparators “must be similarly situated ‘in all relevant respects.’” Wilson v. B/E

Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004). Otherwise, the alleged

preferential treatment towards non-identical comparators does not indicate pretext.

See id.

      Ms. Faircloth and Mr. Sapp are not proper comparators. Ms. Faircloth was

Ms. Addison’s subordinate. Although Ms. Faircloth’s false statements in her own

report are deserving of discipline, it is of a different nature from Ms. Addison’s

failure to report a battery on a subordinate. Mr. Sapp is also not a valid comparator



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because he did not hold the same supervisory role as Ms. Addison. Ms. Addison,

not Mr. Sapp, was the officer in charge of the situation. She failed to meet the

higher standards required of her rank. And her demotion ultimately reflected her

failure to carry out her supervisory duties.

       Accordingly, Ms. Addison failed to provide sufficient evidence to create a

jury   question   as   to   whether    the     Department’s   articulated   legitimate,

nondiscriminatory reason was pretextual.         The district court properly granted

summary judgment on Ms. Addison’s discrimination claims.

                                          IV

       The Florida Public Whistle-blower’s Act prohibits state and local agencies

from retaliating against an employee for disclosing a violation or suspected

violation of law or regulation by another employee, agent, or independent

contractor, which produces a substantial and specific danger to the public’s health,

safety, or welfare. See Fla. Stat. § 112.318(5)(a). It also prohibits retaliating

against an employee for disclosing an act or suspected act of another employee,

agent, or independent contractor of gross neglect of duty committed. See id.

       To establish a prima facie case of retaliation under the Act, a plaintiff must

show that (1) she engaged in a protected activity (2) and suffered an adverse

employment action (3) that was causally related to the protected activity. See Rice-

Lamar v. City of Fort Lauderdale., 852 So. 2d 1125, 1131–33 (Fla. 4th DCA 2003)



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(establishing a prima facie case of retaliation under Florida’s Public Whistle-

blower Act is the same as under Title VII). As in the discrimination context,

employer then has the burden to proffer a legitimate, non-retaliatory reason for the

adverse employment action. See Sierminski v. Transouth Financial Corp., 216

F.3d 945, 950 (11th Cir. 2000). If the employer articulates a legitimate reason, the

burden shifts back to the employee to demonstrate that the proffered reason “is

merely pretext for prohibited, retaliatory conduct.” Id.

      Assuming Ms. Addison has established a prima facie case, her retaliation

claims fails for similar reasons as her discrimination claims. The Department

maintains that Ms. Addison was demoted for not filing a staff battery incident

report, and Ms. Addison has not presented evidence allowing a reasonable jury to

find that the Department’s reason was pretextual. The district court therefore

properly granted summary judgment on Ms. Addison’s retaliation claims.

                                         V

      The district court did not err in granting summary judgment.

      AFFIRMED.




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