               Case: 18-10840        Date Filed: 06/13/2019      Page: 1 of 36


                                                                       [DO NOT PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 18-10840
                               ________________________

                      D.C. Docket No. 4:17-cv-00008-WTM-GRS



NAOMI ELLISON,

                                                                          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
                            ________________________

                                       (June 13, 2019)

Before MARCUS and HULL, Circuit Judges, and WRIGHT, ∗ District Judge.

HULL, Circuit Judge:



       ∗Honorable   Susan Webber Wright, United States District Judge for the Eastern District of
Arkansas, sitting by designation.
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      Plaintiff Naomi Ellison appeals the grant of summary judgment in favor of

her former employer, Defendant St. Joseph’s/Candler Health System, Inc.

(“St. Joseph’s”), in her employment discrimination lawsuit, in which she claimed

that St. Joseph’s terminated her employment in retaliation for complaining about

race discrimination in the workplace. After careful review of the record and the

parties’ briefs, and with the benefit of oral argument, we affirm.

                          I. FACTUAL BACKGROUND

      Because we are considering an appeal from the district court’s grant of

summary judgment to Defendant St. Joseph’s, we will consider the facts and

inferences to be drawn from the underlying facts in the light most favorable to

Plaintiff Ellison. Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1311 (11th Cir.

2018); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106

S. Ct. 1348, 1356 (1986).

A.    St. Joseph’s Hospital

      St. Joseph’s operates the St. Joseph’s Hospital in Savannah, Georgia. The

mission of St. Joseph’s is to deliver exceptional service, to treat illness, and to

promote wellness for all people. St. Joseph’s expressly values compassion,

quality, integrity, courtesy, accountability, and teamwork. To meet those goals and

foster a “culture of excellence,” St. Joseph’s workers are required to comply with a

“Co-Worker Compact.”


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      Because this case involves the Co-Worker Compact, we review some of its

provisions. Specifically, the Co-Worker Compact contains nine tenets to which all

workers are expected to commit, including (1) demonstrating a sense of ownership

towards their job; (2) engaging in appropriate behavior, such as treating everyone

as the most important person in the hospital and rejecting rudeness; (3) treating co-

workers as professionals and showing patience with their requests; (4)

communicating with patients with courtesy, clarity, and care; (5) being mindful of

a patient’s sense of urgency and promptly responding to patient requests; and (6)

making patients and their families comfortable while they wait for services. It is a

fireable offense for a St. Joseph’s worker to violate the Co-Worker Compact or to

treat patients with less than the appropriate standard of care.

B.    Ellison’s Employment at St. Joseph’s

      In August 2013, St. Joseph’s hired Plaintiff Ellison, who is black, to work as

a non-licensed Patient Care Technician (“PCT”) on the 7th Floor South unit of the

hospital. The factual setting of Ellison’s work matters here. Patients on the 7th

Floor South are usually critically ill, as they had just left the neurological Intensive

Care Unit. They are cared for by a “patient care team,” which is comprised of

registered nurses, PCTs, and a unit clerk. On the 7th Floor South, St. Joseph’s has

the capacity to treat up to 20 critically ill patients at a time and teamwork is highly

important.


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       On the patient care team, the registered nurses are typically assigned five or

six patients at a time. In turn, the non-licensed PCTs work under the registered

nurses and assist them with patient care. And the unit clerk is responsible for

monitoring, on screens from a desk in the nurse’s station, the most critical of the

patients, as well as alerting team members when any of the patients need attention,

among other administrative tasks. The number of nurses and PCTs assigned to

each shift would vary given the patient census. But, ideally, St. Joseph’s would

staff two PCTs to work on the 7th Floor South each shift.

       More specifically, as a PCT, Ellison provided routine bedside care to these

critically ill patients. Ellison’s tasks included bathing, feeding, changing, and

moving patients, as well as taking vital signs, cleaning soiled patients, and helping

patients void. Ellison worked the night shift, that is from 7 p.m. to 7 a.m. During

orientation, Ellison was given the Co-Worker Compact and the hospital explained

it to her in great detail.

       Each night shift, PCT Ellison was supervised directly by the designated

“Charge Nurse” on duty, who was Rebecca Floyd at the times relevant to this case.

Ellison was also under the supervision of Heather Heldreth, the Clinical Nurse

Manager. Heldreth worked during the day, not the night. On a monthly basis,

Heldreth personally witnessed Ellison’s work at times because she would visit the

7th Floor South during the night shift.


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      Heldreth’s supervisor was Dewey Winkler, the Director of Clinical Care.

Winkler never witnessed Ellison’s performance at work firsthand. Instead,

Winkler relied on information from Ellison’s Nurse Manager (Heldreth), Charge

Nurse (Floyd), and other co-workers to learn about Ellison’s performance.

C.    Performance Review

      In August 2014, about two months before the incidents involved in this case,

Ellison, as a PCT, had a performance review. The hospital’s review scores an

employee from 1 to 5 in various performance categories, with the scores meaning:

1—“Consistently falls below standard,” 2—“Occasionally falls below standard,”

3—“Meets standard,” 4—“Usually exceeds standard,” and 5—“Always exceeds

standard.” Ellison’s scores were all 3s except for in two areas. She received a 2

for “[p]romotes measures to improve system / departmental patient

satisfaction / customer service and verbalizes personal accountability.” She also

received a 2 for this item:

      Customers and co-workers are treated in a courteous manner.
        • New patients are promptly welcomed with patient care items
           and oriented to the unit
        • Apologies are offered for unexpected delays
        • Call lights are answered promptly with message communicated
           to the appropriate person
        • Utilized GIfT will all interactions (Greet, Introduce, inForm,
           Thank)
        • Names and date on whiteboard 100% at beginning of the shift.



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      Ellison’s performance review was thus only satisfactory, not excellent, and

she did have two areas in which she occasionally fell below St. Joseph’s standards.

Of particular importance to this case, Ellison occasionally fell below the standard

for courteous interaction with patients and her co-workers.

D.    October 11 Incident

      On October 11, 2014, Ellison was the only PCT working the night shift on

the 7th Floor South. During her shift, she was involved in an incident with Mary

Gillingham, a registered nurse who was assigned to the same unit that night.

Charge Nurse Floyd was also working that shift.

      PCT Ellison explained that she was entering vital signs into a computer

when Henrietta Cason, the administrative Unit Clerk on duty, called her on the

floor’s internal telephone to report that the patient in Room 734 was soiled and

needed to be cleaned. Nurse Gillingham approached PCT Ellison and asked for

help cleaning and changing the linens for the soiled patient. Ellison admits that she

replied that she would be there in “two minutes” and then went to get clean linens

from a closet.

      When Ellison arrived to help with the patient in Room 734, Nurse

Gillingham said that she no longer needed Ellison’s help. Ellison left the patient’s

room, but Nurse Gillingham followed her out into the hallway. While in the

hallway, Gillingham told Ellison twice: “I don’t like working with niggers.”


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Although Nurse Gillingham denied making that statement to Ellison or ever using

any racially derogatory terms at all, we accept Ellison’s version of the events.

      Immediately following the incident, Ellison reported Nurse Gillingham’s use

of the racial slur to Charge Nurse Floyd and asked to go home because she had a

headache. PCT Ellison also called the House Supervisor, Leslie Jones-Bennett, to

tell her about Nurse Gillingham’s racial slur and to ask to leave early because of

her headache. Jones-Bennett initially asked Ellison to finish her shift because she

was the only PCT working on the 7th Floor South that night. Jones-Bennett then

spoke to Charge Nurse Floyd, who said: “[Ellison] might as well go home she’s

mad and not going to do any work tonight.” As a consequence, Jones-Bennett told

Ellison that she could go home. Once home, Ellison telephoned Winkler and

Heldreth to report the incident with Nurse Gillingham, but neither answered their

phones.

      Meanwhile, shortly after Ellison left St. Joseph’s Hospital, Charge Nurse

Floyd (Ellison’s supervisor) called Jones-Bennett to tell her what had happened.

According to an e-mail written by Jones-Bennett, Charge Nurse Floyd relayed to

her that, after Cason called Ellison about the soiled patient in Room 734, Ellison

told Nurse Gillingham, “Your pt in 734 needs to be cleaned up.” Nurse

Gillingham asked if Ellison was going to help her. Ellison responded, “I’m doing

my vitals” and left the nurse’s station.


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      Some time later, Ellison returned and asked Nurse Gillingham if she needed

help with the patient in Room 734. After Gillingham said no, Ellison reportedly

replied, “I’m not going to help you for the rest of the night.” Gillingham walked

away and mentioned the incident to another nurse. Ellison saw the two nurses

talking and yelled down the hallway: “You[’re] a liar.” Ellison denies that she

shouted that Nurse Gillingham was a liar. After the incident, Ellison asked to go

home because of her headache.

      The morning of October 12, Jones-Bennett e-mailed Heldreth and Winkler

to report the incident between Ellison and Gillingham. Jones-Bennett recounted

the events as Charge Nurse Floyd had described them to her on the phone. Jones-

Bennett reported that, after hearing the whole story from Charge Nurse Floyd, she

called Ellison and told her not to return to work until she spoke to her Nurse

Manager (Heldreth). Jones-Bennett did not mention Ellison’s claim that

Gillingham used the n-word.

      In her October 12 e-mail, Jones-Bennett listed as potential witnesses to the

incident: (1) Nurse Debra Lessard, (2) Unit Clerk Cason, (3) Nurse Gillingham,

and (4) the family in Room 734, who came out into the hallway to see about the

yelling. In that same e-mail, Jones-Bennett reported further that the nurses had

been putting up with Ellison’s behavior since she arrived “but they tell me not to




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report her as they are fearful of what she will do in retaliation.” Jones-Bennett

planned to send Ellison home anytime she saw her bullying co-workers.



E.     Ellison’s October 13 Meeting with Winkler

       Ellison did not work on October 12 or 13 because she was not scheduled for

shifts those days anyway. However, on October 13, Ellison returned to

St. Joseph’s Hospital and met with Winkler to discuss the incident. During this

meeting, Ellison contends that she immediately reported Gillingham’s racially

charged statements. Winkler responded that he had known Gillingham for 20

years and that Gillingham “wouldn’t say that.” Ellison told Winkler that she did

not want to work with Gillingham anymore. At the end of this first meeting,

Winkler told Ellison to provide him with a written statement regarding the matter.

Although she cannot remember exactly when, Ellison contends that she did submit

a written statement to Winkler. 1

F.     The Investigation

       After his October 13 meeting with Ellison, Winkler called Nurse Gillingham

to learn what had happened. Nurse Gillingham told Winkler that she asked Ellison


       1
        We pause briefly to note that Ellison contends that she specifically reported Nurse
Gillingham’s use of the n-word to (1) Charge Nurse Floyd, (2) House Supervisor Jones-Bennett,
and (3) Winkler. All three deny that Ellison reported the racial slur when initially informing
them of the October 11 incident. However, for purposes of this opinion, we will accept Ellison’s
version of the events, including that (1) Ellison reported the racial slur to each of them, and (2)
Nurse Gillingham uttered the n-word twice during the October 11 incident.
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to clean a patient, Ellison refused, and then Ellison later said she was not going to

help Gillingham for the rest of the night because Gillingham was “hateful to her.”

Winkler asked Nurse Gillingham if she had said anything racially charged or

inappropriate to Ellison, and Gillingham denied that she had. But Nurse

Gillingham admitted that she had been generally derogatory to Ellison because she

was mad at her.

      Thereafter, Winkler directed Nurse Manager Heldreth to conduct an

investigation into what happened between Ellison and Nurse Gillingham on

October 11. Winkler told Heldreth to talk to everyone who had worked on 7th

Floor South that night and have them report in writing what they heard or saw

between Ellison and Gillingham. Winkler relied on Heldreth to collect as much

information as she could about the incident.

      Nurse Manager Heldreth investigated the October 11 incident by: (1) asking

various employees who worked that night shift what happened between Ellison and

Gillingham; (2) requesting written statements from those employees; and (3)

reviewing the written statements provided.

      For example, on October 16, 2014, Charge Nurse Floyd e-mailed a written

statement to Heldreth, which described the October 11 incident consistently with

Jones-Bennett’s report in her October 12 e-mail. Charge Nurse Floyd did not

mention that Gillingham used the n-word or said any racially derogatory term to


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Ellison. Nurse Floyd also reported that she had questioned Nurse Lessard and

Nurse Courtney Jones about the October 11 exchange. Both Nurses Lessard and

Jones worked that night. Nurse Floyd reported that Nurse Lessard and Nurse Jones

said that they heard Ellison tell Gillingham not to ask her for any help for the rest

of the night.2

G.     Additional Complaints

       Although Heldreth only asked for information regarding the October 11

incident, Charge Nurse Floyd also reported in that October 16 e-mail that many

patients had complained about Ellison. At least once a week, a patient would not

let Ellison come in their room. As Charge Nurse Floyd put it, “most patients [did]

not want [Ellison] taking care of them.” For example, Nurse Floyd described a

time when everyone at the nurse’s station heard Ellison tell a male patient that she

could not help him use the urinal because “his thing was to[o] small and he would

have to use it in the bed.” The patient responded that he did not want to urinate in

bed, but Ellison was adamant that she could not help him. When Ellison left the

patient’s room, Nurse Floyd told her not to talk to the patient like that and another

nurse went to help the man.




       2
         On October 15, 2014, Nurse Gillingham e-mailed Heldreth to report her account of the
October 11 incident with Ellison. Nurse Gillingham’s written statement was consistent with
what she reported to Winkler during their discussion on October 13, but inconsistent with what
Ellison told Winkler. So again we accept Ellison’s version of the events.
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      In addition, on October 14, 2014, Nurse Jada McNeely e-mailed Nurse

Manager Heldreth because she was concerned about Ellison’s conduct. While

Nurse McNeely did not work the night shift on October 11, she nevertheless

worked alongside Ellison on the night shift on other occasions. Before sending the

October 14 e-mail, Nurse McNeely had reported Ellison’s conduct to her nursing

instructor Ashok Patel and resource coordinator Terria Manning. They told her to

e-mail Nurse Manager Heldreth with her concerns because Heldreth was not on the

7th Floor South that often, so as to witness Ellison’s work performance firsthand.

      Nurse McNeely’s e-mail reported that Ellison was (1) difficult to work with,

(2) had a bad attitude about 75% of the time during shifts, and (3) had a very smart

mouth. Nurse McNeely said it was hard to delegate simple tasks to Ellison

because she was always negative and would not complete the tasks “a lot of the

times” anyway. She also explained that Ellison never asked the nurses if they

needed help with labs. Nurse McNeely reported an instance where she was busy

doing her labs and called to ask Ellison to get an echocardiogram on a patient.

Instead of helping, Ellison asked “why couldn’t we do it” and then hung up the

phone. Most concerning, Nurse McNeely said that Ellison would curse in patients’

rooms and be “rough with them (turning, bathing, bp cuff, etc).” Patients

complained to Nurse McNeely that Ellison did not talk to them nicely, was “mad”

with them, and asked that she not send Ellison back in their rooms.


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H.    Ellison’s October 25 Shift

      On October 25, 2014, Ellison worked a night shift on the 7th Floor South.

Because of Ellison’s performance, Charge Nurse Floyd e-mailed Heldreth and

Winkler that same day informing them that four patients had complained about

Ellison’s conduct. First, a patient complained to Charge Nurse Floyd that Ellison

treated him badly and felt that she was angry with him. While the patient could not

give Charge Nurse Floyd a specific example, he said “this occurs every time she

takes care of me, she is rude, never speaks to me or answers me about anything,

she moves things as if she’s angry with me, acts as if she doesn’t hear me, [and]

she will not put anything back when she is finished.” The patient explained that

Ellison acted as though he was bothering her.

      Charge Nurse Floyd’s e-mail informed Heldreth and Winkler about a second

incident involving a different patient. After the patient said she loved Ellison’s

scarf, Ellison responded, “I’ll need to take it off because if it touches a patient I’ll

have to [throw] it in the trash.” In a third incident, Unit Clerk Cason told Ellison

that another patient needed to be put on the bedpan. About ten minutes later,

Ellison was in the patient’s room getting her blood sugar. Nurse Shanelle Emery

walked in the room to discover that Ellison had not yet put the patient on the

bedpan. Ellison then complained that she was not appreciated and told the patient

that she was working by herself that night. Nurse Emery then put the patient on


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the bedpan. Finally, a fourth patient complained to Nurse McNeely that he felt as

though Ellison was mad at him and she got “rough” when helping him move.




I.    Winkler Terminates Ellison’s Employment

      Based on the information gathered during the investigation and the

additional complaints received, namely the e-mails sent by Ellison’s colleagues,

Nurse Manager Heldreth determined that Ellison had violated the Co-Worker

Compact and engaged in misconduct leading to multiple patient complaints.

Heldreth cited Ellison as violating numerous provisions of the Co-Worker

Compact, including: (1) “[w]ork to be part of the solution,” (2) “look beyond your

assigned task,” (3) “do not say ‘It’s not my job,’” (4) “be accountable for

completion of task[s],” (5) “stay focused,” (6) “reject rudeness, cheerfully meet,”

(7) “show respect,” (8) “conduct yourself as a professional,” (9) “treat co-workers

as professionals, show patience,” and (10) “anticipate the patient’s needs.”

      Heldreth filled out a Disciplinary Action Report (“DAR”), documenting that

Ellison violated the Co-Worker Compact and received multiple patient complaints,

which Heldreth had confirmed with the House Supervisor, Jones-Bennett.

      Winkler reviewed all of the e-mails Heldreth collected during the

investigation. Then, on October 29, 2014, Heldreth and Winkler met with Ellison.


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Winkler explained that the purpose of the meeting was to give Ellison the

opportunity to rebut or accept responsibility for the complaints made by her

co-workers and patients and her involvement in the incident with Gillingham.

      During the meeting, Winkler showed Ellison copies of the e-mails that her

co-workers sent Heldreth, which contained the numerous complaints about her

behavior as well as the employees’ accounts of the October 11 incident. In

response, Ellison denied every allegation and accusation made by her colleagues.

Winkler then decided to terminate Ellison’s employment because it was apparent

that she had blatantly violated the Co-Worker Compact.

      Nevertheless, because Winkler knew she had financial needs, Winkler gave

Ellison his business card, on which he wrote the names of two people who worked

at Suwanee Staffing Service and their telephone number. Winkler suggested that

Ellison contact the company to see if they had any “sitter” positions available.

Winkler explained that a “sitter” is someone who takes care of a patient at their

home, strictly one-on-one. A sitter does anything from cooking to housekeeping,

with an emphasis on personal care, not medical care. Winkler explained that

Ellison had trouble working well on teams and that sitting did not require any

teamwork because it was one-on-one individual care. Winkler hoped that Ellison

would be good at taking care of an individual patient.




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       After Heldreth and Winkler signed Ellison’s DAR, Winkler completed and

signed a Change Request form, stating that Ellison was “[t]ermed for violation of

coworkers compact.”

       On the day Ellison was fired, Heldreth talked to Nurse Lessard. Nurse

Lessard said she was present during the argument between Nurse Gillingham and

PCT Ellison on October 11, but she did not hear the n-word used by anyone. In

line with what she had reported to Charge Nurse Floyd earlier, Nurse Lessard

submitted a written statement saying that Ellison told Nurse Gillingham not to ask

her for any help for the rest of the night.

J.     Jeannette McKinnon

       Ellison also alleged that, about a year earlier, around October 14, 2013,

Nurse Gillingham was involved in a similar interaction with another black

employee, Jeanette McKinnon. McKinnon was a PCT working at St. Joseph’s

Hospital when she was also fired after an incident with Nurse Gillingham. PCT

McKinnon alleged that Nurse Gillingham called her a “nigger” after becoming

frustrated with McKinnon’s work.3 PCT McKinnon immediately reported the

racial slur to Charge Nurse Floyd, who said she would let the Nurse Manager,

Alicia Motley, know what had happened.


       3
        While Nurse Gillingham denies calling McKinnon the n-word, we accept as true that the
record evidence, including McKinnon’s declaration, shows that Gillingham used the racial slur.


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       In an October 17 e-mail, Charge Nurse Floyd informed Nurse Manager

Motley about the incident with Nurse Gillingham and PCT McKinnon. She first

explained that Nurse Gillingham had been asking McKinnon to do things all shift,

but ended up doing the tasks herself. The tension between the two came to a head

when PCT McKinnon physically threatened Nurse Gillingham. McKinnon told

Nurse Gillingham that she would “smash her face in,” and began to approach her.

Unit Clerk Cason 4 moved between the two women to protect Nurse Gillingham

and yelled at McKinnon to back off. At this point, McKinnon had her arms up

with her fingers pointed, and was swearing, yelling, and lunging at Nurse

Gillingham. McKinnon eventually backed off and was sent home.

       The day after the confrontation, Charge Nurse Motley called McKinnon and

asked for a written statement about everything that had happened. The matter was

referred to the human resources department.

       On October 21, McKinnon was called in for a meeting with Nurse Manager

Motley and a human resources representative. During the meeting, McKinnon was

told she was fired for violent behavior toward a co-worker. In turn, McKinnon’s

DAR states that she was fired for violating the prohibition of violence in the

workplace and for inappropriate behavior and threatening comments towards a co-


       4
        Unit Clerk Cason filed a declaration in this case, which included a contemporaneous
statement she wrote recounting McKinnon’s actions (described above) and why she stepped in to
protect Nurse Gillingham.
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worker. It was signed by Nurse Manager Motley and Laura Woods, a human

resource representative. Notably, McKinnon never said, or even alleged, that

Winkler was involved in the investigation or the decision to terminate her

employment.

                          II. PROCEDURAL HISTORY

      On January 5, 2015, Ellison filed a charge with the Equal Employment

Opportunity Commission (“EEOC”), alleging unlawful race discrimination and

retaliation. After receiving her right-to-sue letter, Ellison filed suit in Georgia state

court, claiming that Defendant St. Joseph’s fired her in retaliation for reporting

racial discrimination at the hospital in violation of Title VII, 42 U.S.C. § 2000e-

3(a) and 42 U.S.C. § 1981. On January 17, 2017, St. Joseph’s properly removed

the case to the federal district court in the Southern District of Georgia. Following

discovery, St. Joseph’s moved for summary judgment, which the district court

granted, finding that Ellison had failed to rebut each of St. Joseph’s reasons for

terminating her as pretextual. This is Ellison’s appeal.

                          III. STANDARD OF REVIEW

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

City of Union City, 918 F.3d 1213, 1220 n.4 (11th Cir. 2019) (en banc). Summary

judgment is appropriate only when no genuine issue of material fact exists and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);


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Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S. Ct. 2548, 2252 (1986).

“Where the record taken as a whole could not lead a rational trier of fact to find for

the non-moving party, there is no ‘genuine issue for trial.’” Hornsby-Culpepper,

906 F.3d at 1311 (quoting Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356).

                                IV. DISCUSSION

A.    Retaliation Claims under Title VII and Section 1981

      Title VII and § 1981 prohibit retaliation against an employee by an employer

for engaging in statutorily protected activity. 42 U.S.C. § 2000e-3; Bryant v.

Jones, 575 F.3d 1281, 1307–08 (11th Cir. 2009) (explaining that the elements to

establish a retaliation claim under Title VII and § 1981 are the same). Title VII’s

anti-retaliation provision prohibits an employer from retaliating against an

employee “because [she] has opposed any practice made an unlawful employment

practice” by Title VII, such as discrimination on the basis of race. 42 U.S.C.

§ 2000e-3(a). The purpose of this anti-retaliation provision is to “prevent[] an

employer from interfering (through retaliation) with an employee’s efforts to

secure or advance enforcement of the Act’s basic guarantees,” including securing a

workplace where individuals are not discriminated against based on their race.

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63, 126 S. Ct. 2405, 2412

(2006).




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      Absent direct evidence of discrimination, when analyzing race-based

retaliation claims, we employ the analytical framework set forth in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817 (1973), as modified in Texas

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089 (1981). Bryant,

575 F.3d at 1307. Under this framework, a plaintiff alleging retaliation must first

establish a prima facie case by showing that “[s]he engaged in statutorily protected

activity, [s]he suffered a materially adverse action, and there was some causal

relation between the two events.” Goldsmith v. Bagby Elevator Co., 513 F.3d

1261, 1277 (11th Cir. 2008) (citing Burlington, 548 U.S. at 53, 126 S. Ct. at 2410–

16). “These three elements create a presumption that the adverse action was the

product of an intent to retaliate.” Bryant, 575 F.3d at 1308.

      “Once a plaintiff establishes a prima facie case of retaliation, the burden of

production shifts to the defendant to rebut the presumption by articulating a

legitimate, non-discriminatory reason for the adverse employment action.” Id.; see

also Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993). To

satisfy that burden of production, “[t]he defendant need not persuade the court that

it was actually motivated by the proffered reasons. It is sufficient if the

defendant’s evidence raises a genuine issue of fact as to whether it discriminated

against the plaintiff.” Burdine, 450 U.S. at 254–55, 101 S. Ct. at 1094 (citation

and footnote omitted). “‘If the defendant carries this burden of production, the


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presumption raised by the prima facie case is rebutted,’ and ‘drops from the case.’”

Bryant, 575 F.3d at 1308 (quoting Burdine, 450 U.S. at 255 & n.10, 101 S. Ct. at

1094-95 & n.10).

      “After the defendant makes this showing, the plaintiff has a full and fair

opportunity to demonstrate that the defendant’s proffered reason was merely a

pretext to mask discriminatory actions.” Bryant, 575 F.3d at 1308. If the

defendant’s 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). To establish pretext, a

plaintiff must 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) (internal

quotations omitted). “If the plaintiff does not proffer sufficient evidence to create

a genuine issue of material fact regarding whether each of the defendant

employer’s articulated reasons is pretextual, the employer is entitled to summary

judgment.” Chapman, 229 F.3d at 1024–25.

      To begin, we assume for purposes of this appeal that Ellison has established

a prima facie case of retaliation. In its motion for summary judgment, St. Joseph’s


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proffered two legitimate, non-discriminatory reasons for firing Ellison:

(1) complaints about her treatment of the critical care patients; and (2) complaints

about her inability to work with others on the patient care team, that is her conduct

that violated the Co-Worker Compact. As an employer’s burden of production at

this step is “exceedingly light,” Turnes v. AmSouth Bank, NA, 36 F.3d 1057,

1060–61 (11th Cir. 1994), we agree with the district court that St. Joseph’s

satisfied its burden of articulating a legitimate, non-discriminatory reason for

Ellison’s termination. This remains true despite the subjective nature of

St. Joseph’s conclusion that Ellison violated the various provisions of the

Co-Worker Compact because that determination was based on a clear and

reasonably specific factual basis. 5 See Chapman, 229 F.3d at 1034 (“A subjective

reason is a legally sufficient, legitimate, nondiscriminatory reason if the defendant

articulates a clear and reasonably specific factual basis upon which it based its

subjective opinion.”). It is undisputed that Ellison’s problematic interactions with

her colleagues are expressly set forth in detail in the e-mails Heldreth collected

during her investigation.


       5
        Although Ellison conceded in the district court that St. Joseph’s met its “slight burden of
producing a legitimate, nonretaliatory reason for terminating Ms. Ellison’s employment,” she
now argues for the first time on appeal that St. Joseph’s did not meet that burden because of the
subjective nature of its conclusion that she violated the Co-Worker Compact. Generally, we do
not consider arguments raised for the first time on appeal, but Ellison’s claim in this regard is
meritless in any event. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th
Cir. 2004).

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B.    Whether Ellison Has Demonstrated Pretext

      Accordingly, the primary question on appeal is whether Ellison has

sufficiently shown that St. Joseph’s proffered reasons for her termination were

pretextual and the real reason was in retaliation for complaining about

Gillingham’s racially discriminatory statements. To answer that question, our

“highly focused” task is to view all of the evidence to determine whether Ellison

has “cast sufficient doubt on [St. Joseph’s] proffered nondiscriminatory reasons to

permit a reasonable factfinder to conclude that [St. Joseph’s] proffered legitimate

reasons were not what actually motivated its conduct.” See Combs, 106 F.3d at

1538 (internal quotations omitted). For the reasons discussed below, we conclude

that Ellison has failed to create a genuine issue for trial with regard to pretext.

      1. Complaints from Critical Patients about Ellison’s Care

      As we have explained, St. Joseph’s articulated that it terminated Ellison’s

employment because of the complaints it received from patients regarding

Ellison’s care. Specifically, several critical care patients, who had just left

St. Joseph’s neurological Intensive Care Unit, complained that Ellison was

disrespectful, angry with them, treated them badly, and was “rough” when helping

them move, among other things. Patients asked that Ellison not be allowed back in

their rooms. Although Heldreth received the patient complaints via e-mail from

two different nurses, Charge Nurse Floyd and Nurse McNeely, she took the


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additional step of confirming them with the House Supervisor, Jones-Bennett,

before citing the patient complaints in Ellison’s DAR. And Winkler took these

complaints into account when he fired Ellison.

      This proffered reason for Ellison’s termination clearly meets the test of

being one that might motivate a reasonable employer. See Chapman, 229 F.3d at

1030. St. Joseph’s mission is to deliver exceptional service in its treatment of

patients at St. Joseph’s Hospital. Mistreating and being disrespectful to several

critically ill patients, such that they did not want Ellison to care for them at all, is a

manifestly reasonable basis to terminate her employment.

      Ellison attempts to rebut this explanation by arguing that Winkler did not

honestly believe the patient complaints against her because, after firing her, he

gave the phone number of a “sitting” agency that might hire her for patient care

purposes. Ellison also submits that her employment evaluation conducted by

Heldreth and Winkler two months before her termination showed that she was

performing satisfactorily in terms of patient satisfaction and customer service.

And prior to the October 11 incident, she had never received any written

disciplinary action regarding her performance.

       None of the evidence Ellison offered rebuts St. Joseph’s articulated non-

discriminatory reason. Concerning Winkler’s suggestion that Ellison contact the

“sitting” agency for potential employment, the evidence shows that the position of


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a sitter is markedly different than the position of a PCT working on a patient care

team. As a sitter, Ellison would work one-on-one with a patient who was well

enough to be at home, not in the hospital, with an emphasis on personal care, not

medical care. In contrast, as a PCT, Ellison worked on a patient care team, taking

care of medically critical patients who had just left the Intensive Care Unit.

Further, as a PCT, Ellison was required to assist nurses with their medical care of

patients, in addition to providing routine bedside care.

      We therefore conclude that it is not inherently contradictory that Winkler

fired Ellison due to patient complaints about her care at St. Joseph’s Hospital,

while also providing her with contact information for a “sitting” position caring for

patients in the entirely different setting of at-home, one-on-one care. Indeed,

Winkler knew that Ellison had worked in patient care for many years before

joining St. Joseph’s Hospital and had the credentials to work as a sitter. Winkler

explained that, while Ellison’s employment at St. Joseph’s Hospital did not work

out because she was having trouble working well on the patient care teams, he

hoped that she would be good at taking care of an individual patient in the context

of one-on-one care. At the same time, aside from giving her the contact

information for the sitting agency, Winkler did not recommend Ellison for the

sitter position or otherwise help her get the job. Providing Ellison with contact

information for a potential employer is hardly a ringing endorsement of Ellison,


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nor does it contradict that Winkler honestly believed that patients at St. Joseph’s

Hospital had complained about Ellison’s performance as a PCT.

      Moreover, the evidence of Ellison’s annual performance does not rebut that

Winkler honestly believed the patient complaints about Ellison’s performance that

led to her termination. As explained earlier, that performance review was overall

satisfactory, not excellent, and Ellison did receive two 2s, including for treating

patients and co-workers in a courteous manner. In any event, when an employer

asserts that it fired the plaintiff for poor performance, it is not enough for the

plaintiff to show that her performance was satisfactory. See Alvarez v. Royal Atl.

Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010). Rather, Ellison must

demonstrate that Winkler did not believe the patient complaints about her

performance and merely used that claim as cover for retaliating against her for

reporting race discrimination at the hospital. Ellison has not made any such

showing. Instead, the record establishes that two different nurses reported the

patient complaints to Heldreth, and Heldreth verified the complaints with Jones-

Bennett, the House Supervisor. Winkler in turn relied on that information about

the patient complaints. While Ellison was adamant that the patient complaints

were false and she never mistreated patients, she has not refuted that Winkler

believed the patient complaints, nor has she shown that Winkler’s concern about

the patient complaints was merely pretext, with retaliation being the real reason for


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her termination. See id. (“The inquiry into pretext centers on the employer’s

beliefs, not the employee’s beliefs . . . The question is whether her employers were

dissatisfied with her for . . . non-discriminatory reasons, even if mistakenly or

unfairly so, or instead merely used those complaints . . . as cover for discriminating

against her.” (citation omitted)).

      We acknowledge that Unit Clerk Cason said in her declaration that the

patient complaints about Ellison were so egregious that, if such interactions with

patients had occurred, Ellison would have been immediately disciplined or fired.

But we do not see how that evidence creates a triable issue of fact as to pretext

because, after Winkler learned of these specific patient complaints, he in fact

terminated Ellison’s employment.

      2. Complaints From Ellison’s Co-Workers

      St. Joseph’s second proffered non-discriminatory reason for terminating

Ellison’s employment is that it received complaints about her inability to work

with others on the patient care team—that is, her violations of the Co-Worker

Compact. On that point, it is undisputed that, in investigating the October 11

incident, Heldreth received complaints from multiple nurses about Ellison’s

conduct. Specifically, the complaints reported that Ellison: (1) was difficult to

work with, (2) had a bad attitude about 75% of the time during shifts, (3) had a

smart mouth, (4) negatively responded to tasks delegated from nurses and often did


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not complete the tasks anyway, (5) refused to help nurses when asked, (6) never

asked nurses if they needed help with labs, and (7) bullied nurses. Based on these

reports, Heldreth concluded that Ellison had violated several provisions of the

Co-Worker Compact, including: (1) “[w]ork to be part of the solution,” (2) “look

beyond your assigned task,” (3) “do not say ‘It’s not my job,’” (4) “be accountable

for completion of task[s],” (5) “stay focused,” (6) “reject rudeness, cheerfully

meet,” (7) “show respect,” (8) “conduct yourself as a professional,” (9) “treat co-

workers as professionals, show patience” and (10) “anticipate the patient’s needs.”

Winkler relied on Heldreth’s determination in firing Ellison. This second

proffered reason for firing Ellison also meets the test of one that might motivate a

reasonable employer. See Chapman, 229 F.3d at 1030.

      Nonetheless, Ellison contends that she proffered sufficient evidence to

permit a reasonable jury to disbelieve that Winkler’s decision to fire her was

motivated by the nurses’ complaints about her conduct that violated the Co-Worker

Compact. In particular, Ellison argues that (1) Heldreth “overstated” the

violations, which had no identifiable reference point in the e-mailed complaints,

(2) Ellison’s prior performance review was satisfactory, and (3) she had not

previously received any written disciplinary action about her performance.

      We find these arguments to be unpersuasive. Heldreth’s conclusion that

Ellison violated the Co-Worker Compact flows directly from, and is supported by,


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the complaints Heldreth received in the e-mails. At any rate, which of those

complaints establish which specific violations of the Co-Worker Compact is not an

issue for this Court to referee. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079,

1092 (11th Cir. 2004) (“Whether [the plaintiff’s] conduct was insubordinate is not

an issue for this Court to referee.”). Our sole concern is whether unlawful

retaliation motivated the decision to terminate Ellison’s employment. In that

regard, Ellison has provided no evidence to show that Winkler did not honestly

believe either her colleagues’ complaints or Heldreth’s conclusion that she violated

the Co-Worker Compact. See Silvera v. Orange Cnty. Sch. Bd., 244 F.3d 1253,

1259–61 (11th Cir. 2001) (finding no pretext because the plaintiff failed to refute

defendant’s belief, whether or not mistaken, which explained defendant’s actions).

      It is true that Winkler relied on Heldreth to identify the provisions of the

Co-Worker Compact that Ellison violated, but Winkler was not required to conduct

a separate analysis himself. Winkler reasonably relied on Heldreth—who was his

immediate subordinate and Ellison’s supervisor—to conduct that analysis for St.

Joseph’s. See Hawkins v. Ceco Corp., 883 F.2d 977, 980 n.2 (11th Cir. 1989)

(explaining that an employer properly relied on his immediate subordinate’s report

about an employee’s insubordination and did not need to conduct an independent

investigation himself). In addition, as discussed above, evidence of Ellison’s past

satisfactory performance is not sufficient to show that Winkler did not believe the


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various complaints about Ellison’s performance and merely used that claim as a

cover for retaliation.

      3. Whether St. Joseph’s Investigation Was Flawed

      As to both of St. Joseph’s articulated reasons for her termination, Ellison

argues that they were pretextual because the investigation from which the

complaints were derived was flawed. More particularly, Ellison alleges that the

investigation was flawed because (1) Heldreth never personally questioned Ellison

about the Gillingham incident, (2) Unit Clerk Cason did not provide a statement,

(3) Heldreth solicited negative statements about Ellison that were not related to the

October 11 incident, and (4) St. Joseph’s failed to follow its own policies in

terminating her employment. We do not agree.

      None of Ellison’s criticisms of the investigation considered separately or

together show that the investigation was unfairly conducted, or at a minimum so

unfairly conducted that it should be considered evidence of pretext. First, although

Heldreth did not personally interview Ellison about the October 11 incident,

Winkler did interview Ellison about it during their October 13 meeting. During

that meeting, Ellison told Winkler that Nurse Gillingham had used the n-word, and

Winkler asked Ellison to provide him with a written statement, which she later

submitted. Similarly, after the incident, Gillingham spoke with Winkler about

what had happened and submitted a written statement. Because Ellison and


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Gillingham were treated the same in the course of St. Joseph’s handling of the

incident, we do not see how Heldreth’s not personally interviewing Ellison shows

that the investigation was flawed or unfair.

      And although Heldreth did not obtain statements from each and every

employee working at the time of October 11 incident, she did obtain information

from House Supervisor Jones-Bennett, Charge Nurse Floyd, Nurse Lessard, and

Nurse Jones. That said, we recognize Ellison complains that Heldreth never asked

Unit Clerk Cason about the incident. However, Ellison produced no evidence to

show that Unit Clerk Cason was present to witness the incident between Nurse

Gillingham and Ellison in the first place. In fact, in her declaration, Unit Clerk

Cason provided no firsthand testimony corroborating Ellison’s version of the

October 11 incident or otherwise recounting the incident at all. Instead, Cason

stated that she heard from two unnamed PCTs two days after the incident that

Nurse Gillingham had called Ellison the n-word and that Ellison had been

suspended. Given that Ellison was the only PCT on duty on the 7th Floor South

for the October 11 night shift, any knowledge by those two PCTs was not even

firsthand knowledge either. Without Cason’s having any firsthand knowledge of

the incident, we cannot say that Heldreth’s not asking Unit Clerk Cason about it

rendered the investigation so unfair as to show pretext.




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      Moreover, there is no record evidence to support Ellison’s contention that

Heldreth instructed Nurse McNeely and Charge Nurse Floyd to “dig up every

piece of dirt” on Ellison. Instead, it is undisputed that Nurse McNeely had initially

expressed her concerns about Ellison’s conduct to her nursing instructor Patel and

resource coordinator Manning. Both told Nurse McNeely to e-mail her concerns to

Heldreth, who of course was Ellison’s supervisor. As for Charge Nurse Floyd,

there is no evidence that Heldreth asked her to submit a written statement about the

patient complaints or otherwise dig up dirt on Ellison. Because Ellison’s allegation

in this regard is unsupported, it is not sufficient to create a genuine issue of fact.

See Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (“[M]ere conclusions

and unsupported factual allegations are legally insufficient to defeat a summary

judgment motion.”).

      In addition, Ellison has offered no evidence to show that Winkler was

required to refer the investigation of the October 11 incident to St. Joseph’s human

resources department. First, Ellison has not demonstrated that she was placed on

administrative leave while the hospital investigated the incident, as she came back

to work. But even if there is a fact issue as to whether she was subject to

administrative leave, Ellison has not shown that Winkler was required to refer the

matter to human resources anyway.




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      It is true that St. Joseph’s Administrative Policy on Discipline requires

consultation with the human resources department when employee misconduct is

subject to progressive discipline, i.e., first, a verbal warning, then a written

warning, followed by suspension, and eventually discharge. But there is a special

exception to that rule for when the misconduct at issue is so egregious that, when

disciplined, the employee is subject to immediate termination, rather than going

through the steps of progressive discipline.

      According to Winkler, Ellison’s conduct that violated the Co-Worker’s

Compact triggered this special exception. Consequently, when Ellison was

disciplined, she was immediately fired. Because Ellison was not subject to

progressive discipline, Winkler was not required to involve the human resources

department. Ellison has not, therefore, offered any evidence to show that St.

Joseph’s actually violated applicable policies. For all of these reasons, Ellison has

failed to show that the manner in which St. Joseph’s investigated the October 11

incident establishes that the hospital’s stated reasons for her termination were

pretext.

      4. Whether the McKinnon Incident Establishes Pretext

      Ellison also argues that the evidence of the McKinnon incident—during

which, a year earlier, Gillingham called McKinnon the racial slur—is similar to her

experience and constitutes evidence of pretext. We agree that it is troubling that


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another PCT reported to St. Joseph’s that Gillingham called her a racial slur and

then was fired soon thereafter. But the reasons for McKinnon’s firing were

considerably different from Ellison’s. McKinnon was fired because she physically

threatened Nurse Gillingham. Indeed, she violated St. Joseph’s prohibition of

violence at the workplace, engaged in inappropriate behavior, and threatened a

co-worker. Unit Clerk Cason’s statement attached to her declaration confirms that

she had to step in between them to protect Nurse Gillingham.

      In any event, we conclude that this evidence does not create a triable issue in

this case because the decisionmakers who fired McKinnon were not the same as

the decisionmakers who fired Ellison. See Goldsmith, 513 F.3d at 1286 (holding

that co-worker testimony that an employer retaliated and discriminated against

them is admissible under Fed. R. Evid. 404(b) to prove the same decisionmaker’s

motive, intent, or plan to discriminate or retaliate against the plaintiff).

      Ellison does not dispute that the incident between McKinnon and

Gillingham was initially investigated by Nurse Manager Motley and then handled

with the St. Joseph’s human resources department. McKinnon said as much

herself, explaining that she was fired during a meeting with a human resources

department representative and Motley, both of whom signed her DAR. Winkler

was not present during that meeting and did not sign McKinnon’s DAR. In




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contrast, it was Winkler who decided to fire Ellison based on Heldreth’s

recommendation, and both Heldreth and Winkler signed Ellison’s DAR.

      Despite Ellison’s suggestion otherwise, the fact that Winkler, in his capacity

as Department Director, signed an administrative Change Request form as to

McKinnon does not raise the inference that he was involved in the investigation or

decision to terminate McKinnon or otherwise knew that Gillingham had called

McKinnon the n-word. The Change Request form itself shows that Nurse Manager

Motley sought McKinnon’s termination on the basis that she violated the

prohibition against workplace violence. Further, even though Winkler was copied

on an October 17, 2013, e-mail about the McKinnon incident, the e-mail also did

not report that Gillingham called McKinnon a racial slur. This is consistent with

Winkler’s statement that he had no knowledge about any race issue involving

McKinnon at St. Joseph’s Hospital.

      Importantly too, Ellison has not produced any evidence showing that the

incident with McKinnon demonstrates that Heldreth and Winkler did not honestly

believe the numerous complaints about Ellison’s mistreatment of patients or the

complaints about her inability to work in a team with co-workers, specifically, the

nurses caring for critically ill patients in the 7th Floor South unit of the hospital.

We therefore conclude that no inference of pretext is available on the basis of the

facts surrounding McKinnon’s termination.


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                                 V. CONCLUSION

      Based on the foregoing, we conclude that Ellison failed to produce evidence

sufficient to permit a reasonable factfinder to disbelieve St. Joseph’s proffered

non-discriminatory explanation that it terminated Ellison’s employment because of

patient complaints about her treatment and her conduct that violated the

Co-Worker Compact. Because Ellison has failed to rebut the non-discriminatory

reasons for her termination, a jury cannot reasonably conclude from the facts that

St. Joseph’s fired her in retaliation for reporting racial discrimination. Therefore,

we affirm the district court’s grant of summary judgment in favor of Defendant

St. Joseph’s.

      AFFIRMED.




                                          36
