              Case: 19-13529    Date Filed: 08/06/2020   Page: 1 of 11



                                                             [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 19-13529
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 8:18-cv-00359-JSM-CPT

BENITA MCCONICO,

                                                               Plaintiff-Appellant,

                                      versus

CITY OF TAMPA,

                                                              Defendant-Appellee.
                          ________________________

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

                                 (August 6, 2020)

Before MARTIN, ROSENBAUM, and LAGOA, Circuit Judges.

PER CURIAM:

      Benita McConico appeals the district court’s grant of summary judgment to

the City of Tampa on her claims of racial discrimination under Title VII of the
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Civil Rights Act of 1964 (“Title VII”) and retaliation under the Americans with

Disabilities Act (“ADA”). After careful review, we affirm.

                                        I.

A. Employment History

      Beginning in 2007, McConico was employed by the City of Tampa (“the

City”) as an “Automotive Equipment Operator I” in the City’s Neighborhood

Empowerment Department. Her job was to operate lightweight trucks and

construction and maintenance equipment for the City. Her supervisor was Susan

Wenrick. Under the City’s “Know Your Role” program, City employees are

categorized into four different groups for the purposes of responding to emergency

events, such as hurricanes. As an Automotive Equipment Operator I, McConico

was designated as a Group II, “Non-emergency Assigned Employee.” Group II

employees are not required to work during emergencies but are expected to

provide emergency support and ensure continuity of City services.

      On Monday, September 11, 2017, the City suspended normal operations due

to Hurricane Irma. Carlos Rios, a Neighborhood Team Leader in the

Neighborhood Empowerment Department, was assigned to act as Operations Chief

for Damage Assessment and Logistics Chief of the Neighborhood Enhancement

teams for the duration of the storm. On September 7th or 8th, before the hurricane

made landfall, Rios met with all Neighborhood Enhancement employees and


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advised them to make preparations in case they were required to report to work the

following week. He also advised them that reporting to work would be mandatory

if they were called upon.

      On the afternoon of September 11, Rios began contacting Neighborhood

Enhancement crew supervisors to inform them that they would be activated the

following day, which meant their crews would be required to report to work. Rios

could not reach McConico’s crew supervisor, Bob Hollie, so he called members of

Hollie’s team directly. Rios claims he spoke with McConico at 4:22 p.m. and

informed her that she needed to report to work at 7 a.m. the next day. He recalls

that McConico told him that she could not report to work because her power was

out. He says he told McConico that a power outage was not a valid excuse and she

was still required to come to work.

      On September 12, Hollie informed Rios that McConico did not report to

work because schools were closed, and she could not leave her grandchildren at

home. McConico was later informed that she was considered absent without leave

on September 12 and so not paid for that day. She filed a grievance challenging

the decision not to pay her for September 12, in which she stated that she spoke

with Hollie at 6:23 a.m. on September 12 and he agreed she could remain at home.

      After the hurricane, McConico and two other employees of the

Neighborhood Empowerment Department who failed to report to work received


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notices of pre-disciplinary hearings. Sal Ruggiero, the manager of the

Neighborhood Empowerment Department and the sole decision maker with regard

to employee discipline, determined that McConico should be terminated. On

October 25, 2017, McConico was fired for failing to report to work for an

emergency assignment. The other two employees who failed to report to work that

day—Cliffette Williams and Ralph Rodriguez—were not fired.

      McConico appealed her termination to the Civil Service Board (“CSB”),

which held a hearing on her termination on February 19, 2018. At the hearing,

Ruggiero testified that what distinguished McConico’s case from that of Rodriguez

and Williams was that McConico had clear instructions from Rios to report to

work on September 12. In contrast, Williams and Rodriguez called in to report

that they would be absent, but they never made contact with a supervisor and so

were not directly instructed to report to work. Rios also testified and said he

directly instructed McConico to report to Lowery Park at 7 a.m. on September 12.

Based on this and other testimony, the CSB concluded that discipline was

appropriate, but termination was not warranted. Instead, the CSB reinstated

McConico in her job but imposed retroactive suspension without pay from the date

of her dismissal through January 1, 2018. As a result, McConico was reinstated,

but was not paid from the time of her dismissal through January 1, 2018.




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      McConico filed two charges with the Equal Employment Opportunity

Commission (“EEOC”) that are relevant here. She filed the first in June 2017,

months before the hurricane and her absence from work. That charge alleged that

she was subjected to different employment conditions because of her “medical

restrictions.” She filed a second charge in November 2017, alleging her

termination was based on racial discrimination and in retaliation for filing her June

2017 EEOC charge.

B. Litigation History

      In June 2018, McConico filed an amended complaint in the United States

District Court for the Middle District of Florida, alleging race discrimination under

Title VII and retaliation under the ADA. She alleged that she is an African-

American woman, was qualified for her position, and met the reasonable

performance expectations for that position. As to her ADA claim, McConico

alleged that her October 2017 discharge was in retaliation for filing the June 2017

EEOC charge. As to her racial discrimination claim, she alleged she was

terminated after failing to report for work on one occasion while two similarly

situated white employees were not disciplined or terminated for the same

infraction.

      Both McConico and the City moved for summary judgment. The district

court granted the City’s motion for summary judgment and denied McConico’s


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motion. It held that McConico failed to make a prima facie case of racial

discrimination because she did not produce evidence that the City treated similarly

situated employees outside her protected class more favorably. It also held that she

failed to make a prima facie case of retaliation for her ADA claim because her

termination and the filing of her EEOC charge were four months apart and there

was no other evidence linking the two events. McConico timely appealed.

                                         II.

      We review de novo the grant of summary judgment, drawing all reasonable

inferences in favor of the non-moving party. Alvarez v. Royal Atl. Devs., Inc., 610

F.3d 1253, 1263–64 (11th Cir. 2010). Summary judgment is proper if there is no

genuine issue of material fact and the moving party is entitled to judgment as a

matter of law. Id.

                                        III.

A. Racial Discrimination Claim

      The district court held that McConico did not make a prima facie case of

discrimination because she failed to produce evidence that the City treated

similarly situated employees outside her class differently than it treated her. We

think McConico did make a prima facie case of discrimination. Nonetheless, we

affirm because the City produced a legitimate, non-discriminatory reason for

McConico’s dismissal that McConico failed to rebut.


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      Under Title VII, it is unlawful for an employer to “discharge . . . or . . .

discriminate against any individual with respect to his compensation, terms,

conditions, or privileges of employment, because of such individual’s race.”

42 U.S.C. § 2000e-2(a)(1). A plaintiff may prove discrimination through direct or

circumstantial evidence. See Alvarez, 610 F.3d at 1264. Because McConico has

produced only circumstantial evidence, we evaluate her claim under the framework

described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817

(1973). Under this framework, “the employee first must show a prima facie case

of discrimination.” Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1237 (11th

Cir. 2016). To do so, the employee must show (1) that she belongs to a protected

class; (2) that she was subjected to an adverse employment action; (3) that she was

qualified to perform her job; and (4) that her employer treated “similarly situated”

employees outside her protected class more favorably. Lewis v. City of Union

City, 918 F.3d 1213, 1220–21 (11th Cir. 2019) (en banc). A “similarly situated”

employee is one who ordinarily engaged in the same conduct as the plaintiff; was

subject to the same employment policy, guideline, or rule as the plaintiff; worked

under the same supervisor; and shared the plaintiff’s employment or disciplinary

history. Id. at 1227–28. If the plaintiff makes this prima facie showing, the

employer must present a legitimate, nondiscriminatory reason for the adverse




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employment action. Quigg, 814 F.3d at 1237. If the employer does so, the

employee must show that the employer’s proffered reason is mere pretext. Id.

       There is no dispute that McConico belongs to a protected class, was

qualified for the position she held, and was subjected to adverse employment

action. But the record contains conflicting evidence over whether a similarly

situated employee was treated more favorably than McConico. McConico claims

that Rodriguez, whom she identifies as a white male, was similarly situated to her

but treated more favorably.1 Like McConico, Rodriguez was an Automotive

Equipment Operator who missed work on September 12. And, also like

McConico, Rodriguez was issued a notice of pre-disciplinary action for failure to

report to work on September 12. But unlike McConico, Rodriguez was not

terminated for his absence.

       The City argues Rodriguez was not similarly situated because Rodriguez

received explicit permission to miss work from Wenrick. McConico, on the other

hand, was specifically told to come in to work but did not do so. Under

McConico’s version of the events, however, Rios gave her permission to stay

home from work on the morning of September 12. Assuming this to be true, as we


       1
         Before the district court, McConico argued that Williams was also similarly situated and
treated more favorably. However, Williams is an African-American woman and so was not
outside of McConico’s protected class. For that reason, any difference in the treatment of
McConico and Williams cannot establish a prima facie case of discrimination. Lewis, 918 F.3d
at 1220–21.


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must at the summary judgment stage, McConico’s testimony establishes that both

she and Rodriguez received permission to be absent from work on September 12,

and yet only McConico was terminated for this absence. Under our precedent, this

was sufficient to make a prima facie case of racial discrimination.

       But even though McConico made a prima facie case of discrimination, the

district court did not err in granting summary judgment to the City. This is

because the City proffered a legitimate, nondiscriminatory reason for firing her,

which McConico failed to show was pretextual. 2 In its motion for summary

judgment, the City produced evidence that Ruggiero decided to terminate

McConico based on his subjective belief that she did not have permission to miss

work on September 12. This facially reasonable justification was sufficient for the

City to meet its burden of producing a legitimate, nondiscriminatory reason for

terminating McConico. See Kidd v. Mando Am. Corp., 731 F.3d 1196, 1205 (11th

Cir. 2013) (stating that the employer’s burden is only one of production, not

persuasion, so the employer “need not persuade the court that it

was actually motivated by the proffered reason” (alteration adopted) (quotation

marks omitted)).


       2
          McConico dedicates much of her opening brief to arguing the district court should have
given deference to the CSB’s determination that she should not have been fired, but merely
suspended. And she argues that the district court erred by not treating CSB’s decision, rather
than Ruggiero’s, as the “final judgment” of the City to discipline her. McConico did not raise
either of these arguments before the district court, so we deem them abandoned. See Holland v.
Gee, 677 F.3d 1047, 1066 (11th Cir. 2012).
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      To rebut this, McConico was required to show that Ruggiero’s proffered

reason was pretextual, and that the real reason for her dismissal was racial

discrimination. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 771 (11th Cir.

2005) (per curiam). But McConico failed to present any evidence suggesting

Ruggiero’s belief that McConico did not have permission to miss work was

insincere or otherwise “unworthy of credence.” See id. (quotation marks omitted).

And there is no other evidence in the record suggesting that Ruggiero’s real

motivation was racial discrimination. On this record, the district court did not err

by granting summary judgment on this claim.

B. Retaliation Claim

      The district court also did not err in holding that McConico failed to make a

prima facie case of retaliation. McConico claims that she was fired in retaliation for

filing an EEOC charge in June 2017. But the record contains no evidence of a causal

connection between the EEOC charge and her termination.

      To establish a prima facie case of retaliation, McConico was required to

show that she engaged in statutorily protected conduct; she suffered a materially

adverse action; and there was a causal link between the adverse action and her

protected conduct. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1260 (11th Cir.

2001). Here, the sole evidence of a connection between McConico’s protected




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conduct and her discharge was the temporal proximity between those two events. 3

McConico filed her EEOC charge in June 2017 and was fired in October 2017.

Without other evidence, temporal proximity must be “very close” for us to infer a

causal connection. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th

Cir. 2007) (per curiam) (quotation marks omitted). A gap of nearly four months,

without other evidence of retaliation, is not close enough to draw this inference.

Id. Accordingly, the district court did not err in finding that McConico failed to

make a prima facie case of retaliation.

       AFFIRMED.




       3
         McConico argued before the district court that there was a “pattern of hostility” from
her supervisors, which showed a causal connection between her EEOC charge and her
termination. But Ruggiero, the sole individual responsible for her discharge, denied that he
knew about McConico’s earlier EEOC charge when he fired her. There is no evidence in the
record calling this assertion into question.
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