                                                                   [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                                                                             FILED
                       ------------------------------------------- U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                    No. 06-12293                         January 17, 2007
                              Non-Argument Calendar                   THOMAS K. KAHN
                      --------------------------------------------          CLERK

                     D.C. Docket No. 03-02437-CV-SLB

VOLANDA JONES,

                                                       Plaintiff-Appellant,

                                        versus

U.S. DEPARTMENT OF VETERANS AFFAIRS, et al.,

                                                       Defendants,

SOMERBY AT UNIVERSITY PARK, L.L.C.,

                                                       Defendant-Appellee.

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

                                (January 17, 2007)

Before EDMONDSON, Chief Judge, DUBINA and CARNES, Circuit Judges.

PER CURIAM:
       Plaintiff Volanda Jones (“Jones”) appeals the district court’s grant of

summary judgment for defendant Somerby at University Park, L.L.C.

(“Somerby”)1 on Jones’s claims of retaliatory discharge, brought under Title VII of

the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-3(a). We find no

reversible error; we affirm.

       Jones, a nurse licensed by the State of Alabama, began working at the

Birmingham, Alabama, Veterans Affairs facility in 1997. After she was moved

from the night shift to the day shift in early 2002, she applied for and went on

leave without pay from the VA. She then filed a complaint of race discrimination

and retaliation against the VA with the Equal Employment Opportunity

Commission (“EEOC”).

       In April 2002, while on leave from the VA, Jones began working the

evening shift at Somerby, a senior residential community located in Birmingham.

In April and June 2002, Jones again applied for and received leave without pay

from the VA, based on her representations that her son, who was recovering from

throat surgery and has Down’s Syndrome, needed constant care. In December

2002, the VA began investigating Jones’s employment at Somerby and contacted


   1
    Jones’s original complaint also named the U.S. Department of Veterans Affairs (“VA”) as a
defendant, but Jones resolved the dispute with the VA and did not name the VA as a defendant in
the Amended Complaint.

                                              2
Allison Naugher (“Naugher”), Somerby’s human resources director, requesting

specific information on Jones’s employment. On 7 February 2003, Naugher

questioned Jones about the VA’s investigation; Jones informed her of the EEO

complaint. Naugher testified that Jones then told her that the VA was “trying to

take her [nursing] license” and that she was not “supposed to be working.” Jones

denies making such statements and maintains that the VA informed Naugher that

the VA suspected Jones of falsifying her VA leave documents and that her nursing

license was at risk.

      Around 20 February 2003, Naugher received a complaint from one of

Jones’s co-workers, Chris Miranda (“Miranda”), who told Naugher that she

believed that Jones was tape recording her and that she was intimidated by Jones

and afraid to work with her. Naugher then questioned two other co-workers,

Shirley Beck (“Beck”) and Gabrielle Warner (“Warner”), who expressed similar

worries. Naugher suspended Jones pending an investigation.

      On 27 February 2003, Naugher and Eddie Cummings (“Cummings”),

Somerby’s Director of Assisted Living, met with Jones to discuss the complaints.

Naugher and Cummings both testified that Jones was uncooperative and would not

respond to their questions, including those about Jones’s dispute with the VA.

After this meeting, Vance Holder (“Holder”), Somerby’s Executive Director,

                                        3
decided to terminate Jones’s employment. The decision was based on information

from Naugher, Cummings, and “upon advice of counsel.” On 12 March 2003,

Somerby’s lawyer sent Jones’s lawyer a letter terminating Jones’s employment;

the letter stated – among other things -- that, based on Jones’s refusal to cooperate

and on her conflicting statements to Naugher, Somerby had “conclude[d] that it

cannot place trust in your client’s statements.”

      Jones filed a complaint with the EEOC, alleging that Somerby terminated

her employment in retaliation for filing an EEOC charge against the VA. The

EEOC dismissed the charge in June 2003, concluding that no Title VII violation

could be established. Jones then filed suit against Somerby, claiming retaliatory

discharge in violation of Title VII, 42 U.S.C. § 2000e-3(a). Somerby moved for

summary judgment, arguing that the employment was terminated based on the

following factors: (1) Jones’s initial failure to cooperate in Somerby’s internal

investigation; (2) concerns about her honesty and trustworthiness; and (3)

concerns for the safety of the staff and residents based on the complaints lodged

against Jones by her co-workers. Jones responded by arguing that Somerby’s

stated reasons were incredible, by alleging that Naugher falsified her written notes

of the complaints, and by pointing to discrepancies between the written notes and




                                          4
the employees’ later depositions. Jones also disputed the factual bases for the

complaints, as well as several points of Naugher’s testimony.2

       The district court granted summary judgment for Somerby. The court

determined that Jones failed to present evidence that Somerby’s stated reasons for

terminating Jones were pretextual, as Jones’s arguments were “based on evidence

that Naugher was mistaken or wrong,” and that Jones presented no evidence that

Holder, the ultimate decisionmaker, did not base his decision on the stated

reasons. Jones now appeals.

       We review a district court’s order granting summary judgment de novo,

viewing all facts in the record in the light most favorable to the non-moving party

and drawing all reasonable inferences in its favor. Frederick v. Sprint/United

Mgmt. Co., 246 F.3d 1305, 1311 (11th Cir. 2001). The moving party must show

that no genuine issues of material fact exist and that it is entitled to judgment as a

matter of law. Id.

       To establish a prima facie case of retaliation under Title VII, a plaintiff must

show that (1) she engaged in statutorily protected expression, (2) she suffered an

adverse employment action, and


  2
   Jones argues that she never told Naugher that Jones was not supposed to be working and that the
VA was trying to take her nursing license. She also contends that her “uncooperativeness” was
solely based on her refusal to answer questions about the pending EEO charge against the VA.

                                                5
(3) there was some causal relation between the two events. Pennington v. City of

Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). The employer then has an

opportunity to articulate a legitimate, non-retaliatory reason for the challenged

employment action. Id. If accomplished, the plaintiff bears the ultimate burden of

proving by a preponderance of the evidence that the reason provided by the

employer is a pretext for prohibited, retaliatory conduct. Id.

      The plaintiff may establish pretext “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.”

Carter v. City of Miami, 870 F.2d 578, 584 (11th Cir. 1989) (quotation marks and

citation omitted). The court’s only concern is the honesty of the employer’s

explanation, even if the employer was mistaken about the facts underlying those

reasons. See Cooper v. Southern Co., 390 F.3d 695, 730 (11th Cir. 2001). To

survive a motion for summary judgment, the plaintiff must demonstrate “such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in

the employer’s proffered legitimate reasons . . . that a reasonable factfinder could

find them unworthy of credence.” Combs v. Plantation Patterns, 106 F.3d 1519,

1538 (11th Cir. 1997) (citation and internal quotation marks omitted).




                                          6
       Even assuming – as the district court did – that Jones established a prima

facie retaliation case, the district court properly granted summary judgment for

Somerby because she failed to introduce evidence sufficient to support a jury

finding of pretext. At most, Jones’s evidence suggests that Naugher was mistaken

about the content of their conversations regarding Jones’s dispute with the VA,

about the substance of the co-workers’ complaints, and about Jones’s failure to

cooperate. The evidence does not establish that Naugher3 did not honestly believe

that Jones had been less than forthcoming about her employment with the VA and

that Jones was thus untrustworthy. The minor inconsistencies between some of

Jones’s co-workers’ signed statements and their later depositions do not contradict

that the co-workers did complain to Naugher about Jones, did feel intimidated by




   3
    As acknowledged by the district court, Holden was the actual decisionmaker in this case. On
appeal, Jones argues that Naugher used Holden as her “cat’s paw” and that Naugher should be
regarded as the real decisionmaker. See Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249
(11th Cir. 1998) (“[I]f the plaintiff shows that . . . the decisionmaker acted in accordance with the
harasser’s decision without h[im]self evaluating the employee’s situation[,] causation is
established.”). We need not address this argument, which was not raised below, as we conclude that
Jones failed to present sufficient evidence to show that Naugher – much less Holder – was motivated
by an improper animus.

                                                 7
her, and did believe that she was recording their conversations.4 Jones produced

no evidence to support her assertions that Naugher fabricated the complaints.

       Also, Jones propounded no evidence contradicting Naugher’s and

Cummings’s testimony that she was uncooperative and belligerent during the

internal investigation; that Jones may have refused to answer questions that she

felt were unfair or beyond the scope of Somerby’s investigation and that she had a

legitimate reason for raising her voice (laryngitis) does not show that Naugher and

Cummings did not perceive her as uncooperative. Last, contrary to Jones’s

assertions, Somerby’s stated reasons for Jones’s termination throughout this

litigation have been entirely consistent with the termination letter sent to Jones’s

lawyer. In fact, Jones testified that she understood that she was terminated

because she was seen as untrustworthy and uncooperative. Thus, although Jones’s

evidence may raise a question of fact about whether her termination was mistaken

or unfair, she has produced no evidence disputing Somerby’s assertions of honest

reliance on the proffered reasons.




  4
    Jones specifically argues that Naugher added language to both Miranda’s and Beck’s statements
indicating that they knew that Jones carried a tape recorder at work. Although both co-workers
testified at their depositions that they never actually saw the tape recorder, they also testified that
they believed that Jones carried a recorder with her and that they were afraid that she would record
their conversations.

                                                  8
      Because Jones has failed to introduce evidence that the reasons proffered by

Somerby were mere pretexts for retaliation, the district court properly granted

Somerby’s motion for summary judgment. The judgment is therefore

      AFFIRMED.




                                         9
