                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                     FOR THE ELEVENTH CIRCUIT
                                              U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                           October 31, 2005
                             No. 05-10548                THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

                    D. C. Docket No. 02-00609-CV-P-S

CAROLYN J. AMOS,
PEGGY A. SAUNDERS,
BRENDA GILBERT,


                                                         Plaintiffs-Appellants,

                                  versus

TYSON FOODS, INC.,

                                                         Defendant-Appellee.


                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                      _________________________

                            (October 31, 2005)

Before BIRCH, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
      Carolyn J. Amos, Peggy A. Saunders, and Brenda Gilbert are female and

self-described “white American citizens,” who appeal the district court’s judgment

against them as to their claims of retaliation and discrimination raised pursuant to

Title VII of the Civil Rights Act of 1964. Although appellants argue that the

court’s order fails to address their claims, we disagree and find those claims to be

without support in law or fact. We AFFIRM.



                                I. BACKGROUND

      Because employment discrimination cases are fact intensive, we include a

detailed recitation of the facts in this background section. First, we provide an

overview of the allegations. Second, because the case arises following summary

judgment, we summarize the facts in a light most favorable to the appellants.

Finally, we review the findings and order of the district court.



A. Overview

      Amos and Saunders filed an action against Tyson, their employer, claiming

that they were discriminated against based on (1) national origin, in violation of

Title VII; (2) their age, in violation of the ADEA; (3) their gender, in violation of

Title VII; and (5) their age, in violation of state law. The also claim that they were

                                          2
retaliated against, in violation of Title VII.

      At the time the claims were filed, Amos and Saunders worked in the

sanitation department of Tyson’s chicken processing plant in Blount County,

Alabama, during the third shift, nightly from midnight to 8 A.M. Mary Miller,

who worked on the floor in a position called the “lead”, was immediately senior to

Amos and Saunders. The Tyson hierarchy, as it relates to this case, began with

Amos and Saunders’s direct supervisor, Theresa Johnson. Johnson reported to

Roni Noriega, who was the department superintendent. Two members of the

plant’s human resources department supervised the enforcement of Tyson’s

employment policies, as related to this case. Audrey Johnson was the second shift

human resources manager, and Jan Casey was the employment supervisor.

      Amos and Saunders filed an amended complaint that added Brenda Gilbert

to the action. Gilbert asserted Title VII claims of (1) racial discrimination based

on national origin and (2) retaliatory discharge. Gilbert settled lawsuits against

Tyson for workers compensation, sexual harassment, and discrimination in 1999.

She alleged that as a result of these suits, she was targeted for harassment and,

ultimately, discharge.

      Amos and Saunders argue that the district court erred in (1) finding that they

did not establish a prima facie case of discrimination based on national origin;

                                            3
and (2) finding that they did not show that Tyson’s proffered reason for its action

was a pretext for discrimination. Gilbert contends that the district court erred in

finding that she did not produce evidence of a similarly situated employee who

was not terminated or that the proffered reason for her termination was not a

pretext for discrimination or retaliation.



B. Amos and Saunders’s Claims

      According to their complaint, Amos and Saunders were in the women’s

restroom at Tyson’s Blount County facility when Roberto Maysonet, a Hispanic

male employee, entered the restroom, walked between the two women, and exited

a door on the other side. They claim that the light discipline received by Maysonet

following the bathroom incident is evidence of disparate treatment of persons of

different national origins. Amos and Saunders argue that they engaged in a

protected activity when they reported the bathroom incident through internal

grievance procedures; that they were subject to two separate disciplinary acts in

retaliation for reporting the restroom incident; and that Maysonet was placed in

their work area in retaliation. In addition to the bathroom incident, Amos and

Saunders complain that their removal from the pipe crew, an overtime opportunity,

was an adverse employment action and that the denial of new rain suits was

                                             4
evidence of a pattern of national origin discrimination. The bathroom incident is

discussed first, followed by Amos and Saunders’s other grievances.



             1. The Bathroom Incident

      Amos stated in her deposition that Maysonet walked into the women’s

restroom while she and Saunders were changing in February 2001. Maysonet

walked through the restroom, “in no hurry,” was “gawking” at the two women,

and stopped briefly inside. Saunders testified that Maysonet taunted her with hand

motions. Amos indicated that this incident did not anger her, make her cry, or

cause her to miss work.

      Immediately after the incident, Amos and Saunders went straight to their

supervisor’s office to report it. They reported to Noriega, Miller, and Teresa

Johnson that a man entered the women’s restroom while they were inside it. Amos

did not demand that Maysonet be terminated or seek any other disciplinary action.

      Teresa Johnson acknowledged that Amos and Saunders said that a male

employee walked in the restroom while they were in it and that someone needed to

make sure people knew what their jobs were. Her understanding was that Amos

and Saunders were upset because the man who intruded upon them did not know

his job, not necessarily because he saw them undressed. She testified that she and

                                         5
Noriega handled the situation and did not report the incident to human resources

because they did not think it was a case of sexual harassment. During the meeting,

Noriega said that Maysonet did not speak English and did not know any better.

       Jan Casey learned about the restroom incident during unrelated

investigations into Amos’s behavior.1 Casey determined that Amos told Teresa

Johnson about the encounter in the restroom. Teresa Johnson was suspended for

five days because she had knowledge of the incident but failed to report it to the

human resources office.

       Casey testified that Maysonet received a serious counseling statement as a

result of the investigation into the restroom incident. Although Maysonet

continued to work near Saunders and Amos, Casey did not receive any further

complaints regarding Maysonet. When Amos and Saunders told Miller that they

were uncomfortable working near Maysonet, he was moved away from the two

women, although he remained within the sanitation department. Miller said that

she did not believe that Amos and Saunders saw Maysonet again after this

remedial measure was taken.

       1
          Amos was informed that she was being placed on a three-day suspension “for calling a
team member a ‘bitch.’” R1-1 at 4. The next day, Audrey Johnson called Amos back to work
and told her that an investigation found no evidence of her alleged misconduct. She then handed
her a letter of reprimand concerning the incident and told her to destroy it. She was then handed
a reprimand letter that stated that “she had been observed wetting a team members with a hose
accidentally.” Id. at 5.

                                                6
             2. Other Alleged Discrimination

      Amos and Saunders claimed three other categories of incidents were

evidence of discrimination based on national origin: (1) disparate treatment with

regard to assigning overtime; (2) disparate treatment with regard to the distribution

of rain suits; and (3) the fact that white employees had to pick up the slack for

non-English speaking employees. Saunders also alleges that a fan and drain in her

area were also not repaired out of retaliation for this suit.

      Regarding the change in overtime availability, Tyson appears to have been

advancing general cost cutting measures by assigning more tasks to workers

during their regular shifts in order to reduce the need for overtime workers. Tyson

explicitly instructed its managers to reduce overtime hours. This overall reduction

in overtime affected more Hispanic workers than American ones, because 75

percent of the second shift workforce is Hispanic. However, at least one non-

Hispanic worker continued to receive overtime.

      Although Amos and Saunders allege that they were discriminated against in

the distribution of new rain suits, their supervisor, Teresa Johnson, testified that

she did not remember them complaining to her about not receiving rain suits.

Amos and Saunders also complain that non-English speaking employees are not




                                           7
selected for extra-duties; however, this issue is not pursued on appeal.2



C. Gilbert’s Claims

       Brenda Gilbert is also an employee at the Blount County Tyson Foods plant.

She claims that Tyson selectively follows its workplace violence policy in a

manner that retaliated against her for prior employment discrimination suits

against the company and in a manner that discriminates based on national origin.

Gilbert admits to the facts that led Tyson to end her employment, based on the

work place violence policy, but argues that similar facts did not result in

termination in other cases.

       During a conversation with her supervisor regarding an extension to her

vacation, Gilbert said she “would kill her roommate.” R1-20 at 5. Her roommate

was Chirell Jones, also a Tyson employee. Gilbert’s supervisor, Tommie Harris,

taking Gilbert’s statement as a serious threat, replied, “[Y]ou can’t do that,” to

which Gilbert said, “I’m not, I’m just mad, I want my stuff back.” Id.

       When Gilbert reported back to Tyson, she was told to proceed directly to the

office and was accompanied by a security guard. At the office, Jan Casey and



       2
        Issues not raised on appeal are considered abandoned. Greenbriar, Ltd. v. City of
Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989).

                                               8
Audrey Johnson told her that she was being suspended for her threat to kill Jones.

Gilbert was terminated on 3 April 2002, for violating Tyson’s workplace violence

policy.

      Tyson terminates employees who violate the workplace violence policy.

After receiving notice of the threat, Casey consulted with the corporate office.

Casey interviewed Jones, who was concerned that Gilbert might kill her. Audrey

Johnson spoke with Jones the night of the threat and found her to be upset.

      Reviewing the history of the policy, Casey noted that Juan Vargas, a

Hispanic male employee who threatened to kill a co-worker, was terminated.

Another investigation, which involved Gilbert as the victim, revealed that a

Hispanic male worker named “Torres” nudged or tapped Gilbert but that he did

not forcefully strike her. Nonetheless, Torres was discharged for this conduct.

Casey does not know of any employees who were disciplined but not terminated

for violating this policy. Gilbert discusses two incidents that she claims prove

otherwise.

      First, Gilbert claimed that Lydia Wilson, a Hispanic employee, threatened

another worker with a knife on the processing floor and that she heard from other

workers that Wilson and the employee she threatened fought in the restroom later

that day. Because the allegedly threatening behavior occurred in Spanish, Gilbert

                                         9
did not understand what was being said. An investigation of these allegations

revealed conflicting reports that precluded action under the workplace violence

policy.

      Second, Gilbert claimed that Jones attacked her and should have been

disciplined under the workplace violence policy. She claimed that Joey Broom, a

superintendent, witnessed the altercation and threatened to terminate one or both

of them if it happened again. Broom says he never saw the women arguing at

work and never counseled them for fighting. Casey stated that, during the course

of her investigation, Broom admitted that he once separated Gilbert and Jones

during an argument, but did not witness them resorting to violence. Although

these reports disagree on some details, they agree that no violence occurred

between the two women.



D. The District Court’s Decision

      The court granted Tyson’s motion for summary judgment. Reviewing the

bathroom incident, the court found that Amos and Saunders did not report the 16

February 2001 bathroom incident to human resources until their 14 March 2001

meeting with Jan Casey. The court treated the bathroom incident as a sexual

harassment claim and found that Amos and Saunders (1) did not put forth

                                        10
evidence of conduct that was physically menacing or demeaning; (2) did not put

forth evidence that the conduct unreasonably interfered with their job

performance; and (3) did not establish that the conduct was sufficiently severe as

to be actionable. Further, the court found that Tyson took immediate and

appropriate corrective action.

      With regard to their disparate treatment and retaliation claims, the court

found that neither Amos nor Saunders suffered any actionable adverse

employment action. The court concluded that Amos and Saunders did not engage

in a protected activity because they could not have believed that one incident of a

male employee in a women’s restroom would create a hostile work environment.

Further, the district court concluded that they were unable to show retaliation

because there was no causal connection between their report and some adverse

action. It noted that Amos could not show any employer, who knew about her

prior complaints, punished her, and Saunders could not point to anything that

happened to her after the incident in the restroom. Additionally, Amos and

Saunders did not show that the reasons Tyson proffered for their actions were a

pretext for discrimination.

      Regarding Gilbert’s retaliation claim, the court found that Gilbert could not

establish a causal connection between the alleged retaliatory acts and her

                                         11
termination, as nearly four years passed between the protected activity and the

adverse action. Further, the court determined that she had not shown similarly

situated persons who were treated more favorably as (1) she did not report Jones’s

threat when it occurred, (2) there was no evidence that Torres made discrimination

complaints, and he was discharged, and (3) Gilbert introduced no admissible

evidence as to whether Wilson had ever threatened another coworker. Further,

even if she could establish a prima facie case, she was unable to challenge Tyson’s

legitimate, nondiscriminatory reason for her discharge, as Gilbert admitted that she

threatened to kill Jones.



                                II. DISCUSSION

       We review “a grant of summary judgment de novo, using the same legal

standard as the district court.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1184

(11th Cir. 1997). Summary judgment is proper if the pleadings, depositions, and

affidavits show that there is no genuine issue of material fact and that the moving

party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477

U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986) (citing Federal Rule of Civil

Procedure 56(c)). The evidence, and all inferences drawn from the facts, must be

viewed in the light most favorable to the nonmoving party. Matsushita Elec.

                                         12
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356

(1986). In order to defeat summary judgment, however, the nonmoving party

“must do more than simply show that there is some metaphysical doubt as to the

material facts.” Id. at 586, 106 S. Ct. at 1356. The nonmoving party must make a

sufficient showing on each essential element of the case for which she has the

burden of proof. Celotex, 477 U.S. at 323, 106 S. Ct. at 2552.

       Further, issues not raised on appeal are deemed abandoned. See Greenbriar,

Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989). Amos and

Saunders therefore retain only their claims for overtime based on national origin

discrimination3 and their claims of retaliation for reporting the bathroom incident.

Gilbert challenges only the denial of her retaliation claim.4



A. Amos and Saunders’s Claims


       3
          From the outset, all of the disparate treatment claims presented may have failed to
exhaust the administrative remedies provided by the EEOC. The first count of both the original
and amended complaint alleges “racial discrimination based on national origin.” Because the
claims fail on the merits, we need not decide whether failure to allege discrimination based on
race in the EEOC complaint would have required dismissal in the first instance for failure to
exhaust administrative remedies. But see Sanchez v. Standard Brands, Inc., 431 F.2d 455,
462–64 (5th Cir. 1970).
       4
         Amos, Saunders, and Gilbert argue that the district court did not address all of the
claims they asserted in the order for summary judgment. We disagree with appellants that the
court did not address their claims. However, we may still affirm that decision if summary
judgment was appropriate. See Rowe, 139 F.3d at 1382 n.2.

                                               13
             1. Disparate Treatment

      Amos and Saunders argue that the district court erred in granting Tyson’s

motion for summary judgment on their claims of national origin discrimination.

They assert that Tyson discriminated against them as Americans by treating

Hispanic employees more favorably when disbursing supplies, assigning jobs, and

awarding overtime. Title VII states, in relevant part, that it is “an unlawful

employment practice for an employer . . . to discharge any individual . . . because

of such individual’s race . . . or national origin.” 42 U.S.C. § 2000e-2(a). A

plaintiff may prove a claim of discrimination through (1) direct evidence, (2)

circumstantial evidence, or (3) statistical proof. See Earley v. Champion Int’l

Corp., 907 F.2d 1077, 1081 (11th Cir. 1990).

      Because appellants rely on circumstantial evidence, we use the

burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411

U.S. 792, 93 S. Ct. 1817 (1973), and Texas Dep’t of Cmty. Affairs v. Burdine, 450

U.S. 248, 101 S. Ct. 1089 (1981), for their national origin claims. See Chapman v.

AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (discussing an ADEA claim).

Under the McDonnell Douglas/Burdine framework, the claimant must first show

an inference of discriminatory intent, and thus carries the initial burden of

establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at

                                          14
802, 93 S. Ct. at 1824. Once the plaintiff establishes a prima facie case, the

burden shifts to the defendant to “articulate some legitimate, nondiscriminatory

reason” for the employment action. Id., 93 S. Ct. at 1824. If the defendant is able

to meet its burden, the plaintiff must then show that the proffered reason is merely

a pretext for discrimination. Burdine, 450 U.S. at 256, 101 S. Ct. 1095.

      To succeed with their disparate treatment claim, appellants had to show that:

(1) they were members of a protected class; (2) they were subjected to adverse job

action; (3) they were qualified to do the job; and (4) they were treated less

favorably than a similarly situated individual outside their protected class. See

Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003) (per

curiam).

      Plaintiffs must establish that they suffered an adverse employment action.

See Davis v. Town of Lake Park, 245 F.3d 1232, 1238 (11th Cir. 2001). However,

not all conduct by an employer negatively affecting an employee constitutes an

adverse employment action. Id. Instead, “an employee must show a serious and

material change in the terms, conditions, or privileges of employment. . . . [T]he

employee’s subjective view of the significance and adversity of the employer’s

action is not controlling; the employment action must be materially adverse as

viewed by a reasonable person in the circumstances.” Id. at 1239.

                                          15
      Once a prima facie case is established, the employer has an opportunity to

articulate a legitimate, nondiscriminatory reason for the challenged employment

action. Jackson v. Alabama State Tenure Comm’n, 405 F.3d 1276, 1289 (11th

Cir. 2005). To show the proffered reason was merely a pretext, plaintiffs must

      demonstrate that the proffered reason was not the true reason for the
      employment decision . . . [The plaintiff] may succeed in this 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.

Id. (quotations and citations omitted). “[T]o avoid summary judgment [the

plaintiff] must introduce significantly probative evidence showing that the

asserted reason is merely a pretext for discrimination.” Clark v. Coats & Clark,

Inc., 990 F.2d 1217, 1228 (11th Cir. 1993) (citation omitted). A reason is not

“pretext for discrimination unless it is shown both that the reason was false, and

that discrimination was the real reason.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S.

502, 515, 113 S. Ct. 2742, 2752 (1993) (emphasis removed).

      Upon review of the record and consideration of the parties’ briefs, we find

no reversible error. Assuming that Amos and Saunders belong to the protected

class of Americans, aspects of their claim fail to allege adverse employment

action. Although there are no hard and fast rules regarding the maintenance of

workplace conditions, Title VII does not provide a remedy for the “ordinary

                                         16
tribulations of the workplace.” See Gupta v. Florida Bd. of Regents, 212 F.3d

571, 587 (11th Cir. 2000). Although it might be possible for some level of

discrimination regarding working conditions to rise to an actionable level, the

facts of this case—alleging plugged drains and the slow filling of requests for new

rain suits—fall short of an adverse employment action.

       Tyson’s reductions in overtime, however, withheld a financial benefit from

Amos and Saunders. Discriminatory alterations of financial benefits may qualify

as adverse employment actions. See Bass v. Board of County Commr’s, 256 F.3d

1095, 1118 (11th Cir. 2001). The evidence shows, however, that more Hispanic

workers were affected by the cuts in overtime than American workers.

Accordingly, Amos and Saunders cannot show similarly situated employees

outside their protected class who were being treated differently from them.5

Therefore, the claim for discriminatory awards of overtime fails the fourth prong

of the Knight requirements.

       Furthermore, Tyson’s reason for altering the overtime schedule was to

reduce costs. The evidence revealed that there was a general need to cut overtime

throughout the plant driven by legitimate business reasons. This was



       5
        In fact, the record shows that at least one member inside the class of non-Hispanics
continued with overtime work, so there was not even discrimination against the purported class.

                                               17
accomplished by assigning the tasks to workers during their regular shifts and

using fewer overtime workers. This reason is both legitimate and

nondiscriminatory with regard to national origin. Amos and Saunders have put

forth no evidence to show the reason was false, let alone a pretext for

discrimination.6 Because Amos and Saunders have failed in their burden to

establish a prima facie case and to rebut the reason offered by the company for its

action, we agree that Amos and Saunders’s claim must be denied.



              2. Retaliation

       Amos and Saunders next argue that the district court erred in granting

Tyson’s motion for summary judgment on their retaliation claim. They assert that

Tyson, among other things, cut their overtime and caused illegitimate punitive

reports to be filed in response to their reporting of Roberto Maysonet. We,

however, find no error.

       Title VII prohibits retaliation in the employment arena:

       It shall be an unlawful employment practice for an employer to

       6
         Amos, Saunders, and Gilbert argue that the Supreme Court’s decision in Desert Palace,
Inc. v. Costa, 539 U.S. 90, 123 S. Ct. 2148 (2003), precludes summary judgment because mixed
motive cases necessarily involve jury questions. Because they have not alleged any fact that
would entitle them to a mixed motive jury instruction, we find this contention without merit. See
also Pulliam v. Tallapoosa County Jail, 185 F.3d 1182, 1186 (11th Cir. 1999) (observing that the
defendant may choose not to make a mixed-motive defense).

                                         18
      discriminate against any of his employees . . . because he has
      opposed any practice made an unlawful employment practice by
      this subchapter, or because he has made a charge, testified,
      assisted, or participated in any manner in an investigation,
      proceeding, or hearing under this subchapter.

42 U.S.C. § 2000e-3(a). To prevail on a claim of retaliation under Title VII, a

plaintiff must establish three elements by a preponderance of the evidence: (1) that

the plaintiff engaged in an activity protected under Title VII, (2) that she suffered

an adverse employment action, and (3) that there was a causal connection between

the protected activity and the adverse employment action. Gupta, 212 F.3d at 587.

      Internal reporting procedures advanced in furtherance of the goals of Title

VII are protected under the statute. See Pipkins v. City of Temple Terrace, 267

F.3d 1197, 1201 (11th Cir. 2001). Reports, however, must involve a good faith

belief of unlawful discrimination. See Tipton v. Canadian Imperial Bank of

Commerce, 872 F.2 1491, 1494 (11th Cir. 1989). The test has both a subjective

and objective component. Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385,

1388 (11th Cir. 1998). Thus, although a plaintiff need not prove actual sexual

harassment, “it must be close enough to support an objectively reasonable belief

that [the complained of conduct is in fact sexual harassment.]” Clover v. Total

Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th Cir. 1999).

      Here, on the other hand, Amos and Saunders initially reported the bathroom

                                          19
incident because they were upset that Maysonet did not know his job, not because

they were seen undressed. Amos and Saunders therefore lacked the subjective

belief that they were sexually harassed. In addition, the district court found that

Amos and Saunders could not have believed that the single instance of a male

entering their changing room constituted sexual harassment. We agree that this

single instance would not entitle Amos and Saunders to an objectively reasonable

belief that they had been sexually harassed.

        Furthermore, even if Amos and Saunders could show that the reduction in

overtime was related to their reporting of Maysonet, they cannot establish that the

reason proffered for the reduction in overtime—to reduce operating costs—was a

pretext for discrimination, as discussed in the previous section. Because Amos

and Saunders failed to introduce any evidence that the legitimate reason for

cutting costs was a pretext for discrimination, they have failed in a burden

necessary to defeat the motion for summary judgment. See Clark, 990 F.2d at

1228.



B. Gilbert’s Discharge Claims

        Gilbert argues that the district court erred in granting Tyson’s motion for

summary judgment on both her claims of discrimination and retaliation. Gilbert

                                           20
asserts that Tyson terminated her out of retaliation for her prior suits against the

company. Further, she claims that she was discriminated against because, though

she had threatened to kill her roommate and fellow Tyson employee, Chirell Jones,

other Hispanic employees had made similar threats and were not terminated.



             1. Retaliatory Discharge

      With regard to her retaliation claims, it is undisputed that Gilbert’s suits

against Tyson were protected activity under Title VII and that she suffered an

adverse employment action when she was terminated. However, there must still

be a causal connection between the adverse action and the protected expression.

See Weaver v. Casa Gallardo, Inc., 922 F.2d 1515, 1524 (11th Cir. 1991). The

Supreme Court requires the temporal connection in such circumstances to be “very

close.” Clark County School Dist. v. Breeden, 532 U.S. 268, 273–74, 121 S. Ct.

1508, 1511 (2001) (per curiam) (concluding that twenty months was not

connected); see also Wascura v. City of S. Miami, 257 F.3d 1238, 1248 (11th Cir.

2001) (rejecting a FMLA retaliation claim because three and a half months was

too long to find a retaliatory connection). We agree that the 33 month lapse

between Gilbert’s first settlement and her termination suggests the two events are

unrelated.

                                          21
             2. Discriminatory Discharge

      To succeed with her discriminatory discharge claim, Gilbert had to show

that: (1) she was a member of a protected class; (2) she was qualified for the job

from which she was discharged; (3) she was discharged; and (4) she was treated

less favorably than a similarly situated individual outside her protected class or her

former position was filled by someone outside the class. Maynard v. Board of

Regents, 342 F.3d 1281, 1289 (11th Cir. 2003).

      “In determining whether employees are similarly situated for purposes of

establishing a prima facie case, it is necessary to consider whether the employees

are involved in or accused of the same or similar conduct and are disciplined in

different ways.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (per

curiam). “The most important factors in the disciplinary context . . . are the nature

of the offenses committed and the nature of the punishment imposed.” Silvera v.

Orange County School Bd., 244 F.3d 1253, 1259 (11th Cir. 2001) (internal

citation omitted). “In order to satisfy the similar offenses prong, the comparator’s

misconduct must be nearly identical to the plaintiff's in order to prevent courts

from second guessing employers’ reasonable decisions.” Id. at 1259 (internal

quotation and citations omitted). Employees are not “similarly situated” if

management is aware of one’s improper conduct, but not aware of the others’

                                         22
conduct. See Bogle v. Orange County Bd. of County Comm’rs, 162 F.3d 653,

658–59 (11th Cir. 1998) (an employee who may have broken a rule but was not

caught was not similarly situated to one who had been caught); see also Abel v.

Dubberly, 210 F.3d 1334, 1339 (11th Cir. 2000) (per curiam) (an employee who

admitted to improper conduct was not similarly situated to one who did not).

Summary judgment is appropriate if the plaintiff fails to show the existence of a

similarly situated employee, and no other evidence of discrimination is present.

Holifield, 115 F.3d at 1562.

          The undisputed evidence showed that Gilbert, claiming national origin

discrimination based on her American national origin, was fired and was qualified

for the position she held. Gilbert, however, did not offer evidence that there were

other Hispanic employees who had a similar history of threatening conduct, that

was known to Tyson management, who were retained. Casey discussed two

instances—Vargas and Torres7—where the policy was implemented and the

employees released.

          Gilbert alleges two incidents to prove her case. The first incident, where

she was the victim, is inapposite, because—even if true—there would be no



          7
              Torres was dismissed for workplace violence prior to the establishment of the current
policy.

                                                    23
national origin discrimination because there is no evidence in the record that Jones

is Hispanic. Further, whereas Jones’s alleged violation of the policy was neither

documented nor admitted, Gilbert’s violation of the policy was documented, and

Gilbert admitted to making the threatening statement. These two distinctions

condemn Gilbert’s use of Jones as a comparator. See Bogle, 162 F.3d at 658–59

(11th Cir. 1998); Abel, 210 F.3d at 1339.

       Gilbert’s second example is Lydia Wilson. The evidence of workplace

violence by Wilson is limited to Gilbert’s allegations, as none of the supervisors at

Tyson admit knowledge of the incident. Gilbert, however, did not personally

witness anything that substantiates her position, relying entirely on the statements

of other workers.8 Such testimony is insufficient as a matter of law to establish a

comparator for purposes of analyzing a retaliation claim. See Bogle, 162 F.3d at

658–59 (rejecting plaintiff’s “unverifiable, anecdotal testimony” about alleged

comparators where “witnesses who testified regarding these other incidents had no

personal knowledge”); Pritchard v. Southern Co. Servs., 92 F.3d 1130, 1135 (11th

Cir. 1996) (rejecting plaintiff’s testimony “based on the statements of unknown



       8
         Gilbert saw the first conversation, which took place on the line, but did not understand
the Spanish spoken by Wilson. Gilbert merely heard about the subsequent events that allegedly
occurred in the bathroom. No disciplinary record exists to supplement Gilbert’s allegations, and
Gilbert has not produced a coworker to corroborate her version of the events.

                                               24
coworkers”). Furthermore, as Wilson was neither caught in nor admitted to any

violation of the workplace violence policy, she cannot serve as a comparator for

the reasons listed previously regarding Jones. See Bogle, 162 F.3d at 658–59;

Abel, 210 F.3d at 1339.

      Finally, if actions that would violate a company policy are not brought to

the attention of the company, then that evidence would not be useful in proving

whether the company unlawfully discriminated in the application of its policies.

Because there is no admissible evidence that Tyson management knew of the

Wilson incident, they did not have the opportunity to implement their policy.

Gilbert alleges no situation where Tyson knew of a workplace policy violation and

applied its policies in a discriminatory manner. As such, her claim for retaliatory

discrimination must fail.



             3. Nonretaliatory Rationale

      Once a prima facie case is established, the defendant may proffer a

legitimate, nonretaliatory reason for the challenged action and the plaintiffs must

put forth evidence showing that the reason is only a pretext for retaliation as noted

above. “Provided that the proffered reason is one that might motivate a reasonable

employer, an employee must meet that reason head on and rebut it, and the

                                           25
employee cannot succeed by simply quarreling with the wisdom of that reason.”

Chapman, 229 F.3d at 1030.

           Tyson’s proffered reason—that Gilbert had violated the workplace

violence policy by threatening to kill Jones—is neutral as to national origin and

Gilbert’s prior litigation. Gilbert cannot rebut the proffered reason by simply

quarreling with it.9 Because Gilbert does not even address how the policy of

dismissing employees who threaten violence is discriminatory, she has failed in

her burden to rebut Tyson’s nonretaliatory reason for firing her.



                                   III. CONCLUSION

        Amos, Saunders, and Gilbert’s employment discrimination claims are

without merit, and Tyson’s disciplinary policies and procedures were followed in a

nondiscriminatory manner. The district court properly granted summary judgment

in favor of Tyson Foods. Accordingly, we AFFIRM.




       9
         Gilbert argues that Tyson cannot use its workplace violence policy against her because
she was not physically at work when she made the threatening statement to a Tyson employee. It
is not our place to second guess either the elements of Tyson’s policy regarding workplace
violence or when those elements are met. Gilbert does not contest the soundness of a policy
against workplace violence, and, therefore, she has not met her burden of rebutting Tyson’s
legitimate action in implementation of the policy.

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